BREDERO NIGERIA LIMITED v. SHYANTOR NIGERIA LIMITED & ORS
(2016)LCN/8288(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of March, 2016
CA/A/210/2010
RATIO
APPEAL: THE NOTICE OF PRELIMINARY OBJECTION; THE PURPOSE OF PRELIMINARY OBJECTION
The purpose of a preliminary Objection incorporated in a brief is to contend that the appeal is incompetent and fundamentally defective and if it succeeds, put an end to the appeal.
The Notice of preliminary Objection raised against grounds 1, 2, 6, 14 and 15 is inappropriate, because in this case, even if it succeeds, it will not terminate the appeal; see NEPA V. ANGO (2001) 15 NWLR (PT.737) 627; AUDU V. GIDEON (SUPRA). The Supreme Court had this to say in this regard in OKEREKE V. JAMES (2012) 16 NWLR (Pt.1326) 339:
”A Preliminary Objection is filed against the hearing of the appeal. The clear intention being to contend that the appeal is incompetent or fundamentally defective. Consequently, if it succeeds, the hearing of the appeal abates. Where a Respondent’s objection, if successful, would not terminate the hearing of the appeal, a motion on notice should be filed.” See also ODUNUKWE V. OFOMATA, where the Supreme Court once again held: at 423:
“Nowadays, preliminary Objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground/s of appeal, as in this appeal, and the other ground/s are in order, and can sustain the appeal, the Respondent ought to file a motion on notice to strike out the incompetent ground/s and not a preliminary Objection. Finally, and for emphasis, a preliminary Objection is filed any against the hearing of the appeal, and not against the one or more of the grounds of appeal.?
The Respondent ought to have filed a motion and not a Preliminary Objection, especially as grounds abound to sustain the appeal even if the ones complained of are struck out; for the same reason this Court dismisses the Preliminary Objection without much ado. per. MOHAMMED MUSTAPHA, J.C.
PRACTICE AND PROCEDURE: THE DOCTRINE OF RES JUDICATA; THE PURPOSE OF THE DOCTRINE OF RES JUDICATA AND THE ESSENTIAL ELEMENTS INVOLVED IN THE PLEA OF RES JUDICATA
That settled, it ought to be borne in mind that the doctrine of res judicata serves the sole purpose of putting an end to litigation, by preventing the agony of having to go through litigation twice on the same subject matter; ”What the principle of res judicata means is that where a competent Court has determined an issue and entered judgment thereon neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim, since the matter is res judicata?. PER ADIO, J.S.C. Three essential elements are involved in the plea of res judicata namely:-
(a) An earlier decision on the issue;
(b) A final judgment on the merits; and
(c) The involvement of the same party, or parties in privity with the original parties. per. MOHAMMED MUSTAPHA, J.C.
PRACTICE AND PROCEDURE: HOW DOES ESTOPPEL PER REM JUDICATA OPERATE
What this means in plain parlance is that where it is shown that there is an appeal against a decision sought to be relied on as constituting estoppel per rem judicata such a decision cannot be relied upon.
Estoppel per rem judicata operates when there is a final decision by a Court of competent jurisdiction, whose decision has not been challenged legally, e.g. by way of appeal, or if appealed against, final decision has been made by competent Court or Courts, and that decision is between their privies, and the issue or subject matter is the same; see BALOGUN V. ADEJOBI (1995) 2 NWLR part 371 at 131 and also OLUKOGA V. FATUNDE (1996) 7 NWLR part 462 at 532. per. MOHAMMED MUSTAPHA, J.C.
LAND LAW: THE NOTICE OF REVOCATION; THE MODE OF SERVICE OF THE NOTICE OF REVOCATION ACCORDING TO THE LAND USE ACT
The notice of revocation of a right of occupancy is indeed very important, because it informs the holder thereof the steps taken to extinguish his right of occupancy; thus the service of notice of revocation is sine qua non; and the mode of service of such notice is prescribed in Section 44 of the Land Use Act; which reads:
“any notice requiring by this Decree to be served on any person shall be effectively served on him, (a) by delivering it to the person on whom it is to be served; (b) by leaving it at the usual or last known place of abode of the person; (c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; (d) in the case of an incorporated company or body, by delivering it to the Secretary or Clerk of the Company..?
Where the revocation is not carried out in accordance with the provisions of the Act, it goes without saying that such revocation would be set aside as null and void; OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (Pt.184) 157. per. MOHAMMED MUSTAPHA, J.C.
EVIDENCE: BURDEN OF PROOF; THE ONUS OF PROVING A PARTICULAR ACT IN CIVIL CASES
The onus of proving a particular act lies on the party asserting it in civil cases, this onus is fixed by the pleadings, it does not remain static but shifts from side to side. The onus of adducing evidence is on the person who will fail if such evidence is not adduced, see BASHEER V. SAME (1992) 4 NWLR (PT.236) 491 AT 503 & 504; OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT.147) 723; NIGERIAN MARITIME SERVICES V. AFOLABI (1978) 2 SC; OSAWARU V. EZEIRUKA (1978) 6 – 7 SC 135. per. MOHAMMED MUSTAPHA, J.C.
COURT: DUTY OF COURTS; WHETHER IT IS THE FUNCTION OF THE APPELLATE COURT TO EVALUATE EVIDENCE WHICH HAS ALREADY BEEN EVALUATED BY A TRIAL COURT
It is generally the prerogative of a trial judge who sees and listens to witnesses, to choose or decide whom to believe or disbelieve, and ascribe probative value to such evidence. It is not the place or function of an appellate Court to evaluate evidence, which has already been evaluated by a trial Court, which has not been shown to be perverse. An Appellate Court will not interfere with findings based on such evaluation unless it is found to be erroneous; See CHINDO WORLDWIDE LTD. V. TOTAL (NIG.) PLC. (2001) 16 NWLR (PT.739) 291. per. MOHAMMED MUSTAPHA, J.C.
COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO CONSIDER EVIDENCE BEFORE ARRIVING AT THE CONCLUSION
The law is well settled on this score, because no Appellate Court worth its name will substitute the findings of the trial Court with its own, even if it would have come to a different conclusion if it had tried the matter in the first; instance, and the rationale is that the Court that had the opportunity of listening to witnesses, and observing their respective demeanours is better placed, to ascribe probative value to such evidence, not the Appellate Court;
“In its duty of evaluation, a trial Court has the responsibility to fully consider the evidence of the parties, ascribe probative value to it and put same on the imaginary scale of justice to determine the party in whose favour the balance tilts.” AKANNI V. OLANIYAN (2007) All FWLR part 380 at 1556. The trial Court in the considered opinion of this Court properly considered the evidence before it; see pages 1088 to 1089 of the record of appeal, volume 3, before arriving at the conclusion it did, especially on the vexed question of whether the 1st respondent admitted service of the notice of revocation. per. MOHAMMED MUSTAPHA, J.C.
PRACTICE AND PROCEDURE: THE NATURE OF PERPETUAL INJUNCTION
This is the nature of a perpetual injunction, because it is based on a final determination of the rights of parties, and it is intended to prevent permanent infringement of those rights, and obviate the necessity of bringing an action again and again in respect of every such infringement. A perpetual injunction is not, and should not close the doors of justice, but stave off injustice; the order in this case is not to ‘perpetually’ prevent the 2nd and 3rd respondents from revoking certificate(s) of occupancy in appropriate cases, where the need arises, that much is trite; and as rightly pointed out by learned senior counsel for the 1st respondent, even if the 1st respondent did not ask for it the trial Court would be right to have granted it in the circumstances, see EKWEREMADU V. OHAJURUKA (2002) FWLR part 103 at 480; it follows therefore, that the trial Court was right in granting the perpetual injunction; accordingly this issue too is resolved in favour of the 1st respondent, against the appellant. per. MOHAMMED MUSTAPHA, J.C.
EVIDENCE: WHETHER THE COURT CAN EXPUNGE AN INADMISSIBLE DOCUMENT ADMITTED WITH OR WITHOUT OBJECTION
It is settled law that the Court can expunge an inadmissible document admitted with or without objection, see NIPC LTD. V. THOMPSON ORGANIZATION LTD. (1966) 1 NI4LR 99 at 104 where LEWIS, J.S.C. stated the law as follows:-
“It is of course the duty of counsel to object to admissible evidence and the duty of trial Court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is admitted still through oversight or otherwise then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted”. per. MOHAMMED MUSTAPHA, J.C.
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER A PHOTOCOPY OF A CERTIFIED TRUE COPY SHOULD BE ADMISSIBLE IN EVIDENCE
But having said that I fail to see the reason or rationale why a photocopy of a certified true copy of a document should not be admissible in evidence; the whole logic behind certification is to authenticate the source and content of a public document. If indeed it is certified, common sense, logic and even law, I dare say dictates that such document be admitted, it is only prudent to do so. Law is not about creating difficulties or twists and turns, not in this era of digitization. Law has to move in tandem with other aspects of our lives, already we are playing catch up, else we stand the risk of being left behind to mourn and groan as we often do.
Thankfully this view is shared admirably in MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR part 1089 388 at 396 that:
“Generally, photocopies of documents must be certified. A photocopy of a certified document is admissible. Thus, photocopies of certified true copy of a public document needs no further certification; DAILY TIMES LTD V. WILLIAMS (1986) 4 NWLR (PT.36) 526; INTERNATIONAL BANK NIG. LTD. V. DABIRI (1998) 1 NWLR (PT.583) 284.” PER OGBUAGU, J.S.C.
It is common ground that what was admitted in evidence at the trial Court was a photocopy of a certified true copy of a certificate of occupancy. There is a divergence of judicial opinion as to whether a photocopy of a certified true copy of a public document is admissible in evidence. Sections 89 (e) and (c) (i) of the Evidence Act are to the effect that the secondary evidence admissible of a public document is a certified true copy of the document but no other secondary evidence,
In the case of MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE (1969) AN 48, 57 58, the Supreme Court held firmly that a photocopy of a certified true copy of a public document is not admissible in evidence in the light of the words “no other secondary evidence is the admissible” in Section 90 (i) of the Evidence Act and to prevent the possibility of a photo-trick. This has been followed in a plethora of other cases including OGUNLEYE V. AINA (2011) 3 NWLR (1235) 497, 580 and OGBORU V. UDUAGHAN (2011) 2 NWLR (1232) 538
On the other hand, it has been held in a plethora of other cases that such a document is admissible in evidence since it is a photographic reproduction of the certified true copy of a public document. One of such cases, indeed, the leading case in the line of authorities is DAILY TIMES NIG. LTD. V. WILLIAMS (1986) 4 NWLR (36) per. MOHAMMED MUSTAPHA, J.C.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
BREDERO NIGERIA LIMITED Appellant(s)
AND
1. SHYANTOR NIGERIA LIMITED
2. HON. MINISTER, FEDERAL CAPITAL TERRITORY
3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja, presided by Hon. Justice D. Z. Senchi, delivered on the 11th of October, 2010; dissatisfied the appellant appealed by amended Notice of Appeal filed on the 23rd of February 2012 and deemed properly filed on the 10th of December, 2012 on 15 grounds.
The grounds without the particulars are as follows:
GROUND ONE:
The learned trial judge erred in law when he assumed jurisdiction to entertain the suit which was an abuse of the process of Court because the subject matter is res judicata in view of the final decision of the Federal High Court Yenagoa Division in the Suit No:FHC/YNG/CS/465/2003 made on the 28rh day of July, 2006 and Appeal Nor CA/pHl14612008 pending before the Court of Appeal in Port Harcourt.
GROUND TWO:
The learned trial judge erred in law when he assumed jurisdiction to hear and determine the present suit even when it is clear that the Court lacks jurisdiction as a result of the pending appeal at the Court of Appeal, Port Harcourt (Appeal No:
CA/PH/146/2008) against the final decision in Suit No:FHC/YNG/CS/465/2003.
GROUND THREE:
The learned trial judge erred in law when he held at page 32 lines 25-27, “service on one Peter Ter, whose identity is not known even thought the plaintiff has not disowned him, for Exhibit 13, 13(a) and 13(b), the peter Ter is not within the contemplation of Section 44(d) of the Land Use Act” when:-
a) Parties did not plead relevant facts relating to the mode of service of the Notice of Revocation on which the learned trial Judge applied the provision of Section 44(4) of the Land Use Act.
b) The plaintiff did not plead facts which brought its case within on an issue not formulated on the pleadings before the Court.
GROUND FOUR:
The learned trial judge erred in law when he held that service on Peter Ter, a staff of the Respondent Company at the office of the company is not proper service.
GROUND FIVE:
The learned trial judge misdirected himself in law having found at page 29 of the judgment that the 1st Defendant was right in evoking his power under Section 28(5) (b) of the Land Use Act by issuing Exhibit 5 or 15(a) came to a wrong
conclusion when at page 34 line 22-24 of the judgment his Lords held that “the notice of revocation and service of same been done in accordance with the law, the Notice of Revocation and service thereof are hereby set aside and declared null and void and I so hold, on the ground that before the 1st defendant can validly exercise has power under Section 28(5) (b), the 1st Defendant must strictly comply with Section 28(6) and (7) of the Land Use Act.
GROUND SIX:
The learned trial judge misdirected himself in law by making an order of perpetual injunction restraining the 2nd and 3rd Respondent from reallocating plot 516-544 and 722 Gwarimpa 1 CO2 District, FCT, Abuja to the Appellant or any person whatsoever.
GROUND SEVEN:
The learned trial judge misdirected himself in law by not looking at its record to ascertain the veracity or otherwise of the contention that the 1st Respondent was not served with the Notice of Revocation even when the Court had earlier held that it has the power to look at its record.
GROUND EIGHT:
The learned trial Judge misdirected himself in law when after holding as follows, at page 29 of the judgment, “in
the instant case therefore, from the evidence adduced by the defendants, I hold the view that the property/ the subject, matter of this suit was not developed by the plaintiff as at 9th May 2006 and I so hold. This, therefore, the plaintiff is in breach of clause 4 of Exhibit 1. Consequently therefore, the 1st Defendant was right in evoking his powers under Section 28(5) (b) of the Land Use Act by issuing Exhibit 5 or 15 (a)? went ahead to nullify the said revocation on the ground of non service of the notice of revocation on the plaintiff.
GROUND NINE:
GROUND TEN:
The learned trial judge erred in law by holding that Notice of Revocation and service was not in accordance with the aw.
GROUND ELEVEN:
The learned trial judge erred in law in finding and concluding that page 34 lines 20-24 of the judgment that the 1st and 2nd Defendant did not comply with Section 28(6) and (7) and Section 44(d) of the Land Use Act and consequently held that the Notice of Revocation and service and service of same has not been done in accordance with the law when:
a) The Plaintiff did not plead facts which made the provisions of Section 44
(d) of the Land Use Act applicable to its case.
b) The Plaintiff did not specifically plead facts showing the illegality alleged in its pleading contrary to Order 23 Rule 6 (1) of the High Court of the Federal Capital Abuja (Civil procedure) Rules 2004.
GROUND TWELVE:
The trial Court erred in law in arriving at its judgment having failed to properly or at all review or evaluate the evidence before it which error occasioned a serious miscarriage of justice.
GROUND THIRTEEN:
The learned trial judge erred in law when he found against the weight of evidence that the Notice of Revocation was not served on the plaintiff.
GROUND FOURTEEN:
The learned trial judge erred in law when he held that photocopy of certified true copy of Certificate of Occupancy which is a public Document is admissible and admitted same in evidence and marked it as Exhibit 1.
GROUND FIFTEEN:
The learned trial judge erred in law when he admitted in evidence without objection photocopy of Certified True Copy of offer of statutory right of occupancy dated 13th day of June, 2006 together with photocopy of the Certificate of Occupancy dated 13th June,
2006 as Exhibit 3.
From these grounds the following issues were formulated for the appellant:
1. Whether the trial Court had jurisdiction to determine the suit.
2. Whether from the records of the Court there is evidence of service the notice of revocation on the 1st Respondent.
3. Whether the evidence before the trial Court was property evaluated by the learned trial judge.
4. Whether the trial Court was right in setting aside the revocation after holding that the 1st respondent was in breach of the terms of the certificate of occupancy.
5. Whether the order of perpetual injunction made by the trial Court was proper.
6. Whether the trial Court was right in admitting in evidence Exhibit 3 which is the photocopy of the Certificate of Occupancy.
The issues were adopted for the 1st Respondent; be that as it may, the 1st Respondent filed a Notice of Preliminary Objection on the 17th of September, 2013, which learned senior counsel argued in the 1st Respondent’s brief of argument; response to this is contained in the appellant?s reply brief filed on the 17th of October, 2013.
This Court will now resolve the
Preliminary Objection one way or the other before proceeding to resolve the substantive appeal, the Preliminary Objection is hinged on three grounds.
Ground one of the preliminary objection is that grounds 1 and 2 did not arise from the decision appealed against because the trial judge did not consider or rule on the points which form the basis of the appellant?s grouse; learned senior counsel referred the Court to pages 1057 to 1094 of volume 3 of the record of appeal, IDIKA & ORS V. ERISI & ORS (1988) 2 NWLR part 78 at 563, Order 6 Rule 2 (1) of the Rules of this Court and HON. HALIMA HASSAN TUKUR V. GARBA UMAR UBA & 2 ORS (2013) 4 NWLR part 1343 at 113.
Learned senior counsel argued that even if the Notice of Appeal dated 20th January, 2011 were to be competent, it is a separate appeal and distinct from the one which this appeal is predicated upon, and the appellant has not applied for leave of this Court to argue it together with the present appeal; he contends the two grounds are incompetent and ought to be struck out along with the issues for determination distilled from them for that reason,
Ground two of the Preliminary
Objection is that the appellant lacks locus standi to raise ground 6 of the Notice of Appeal and the arguments that emanated from that.
That the appellant has no legal interest to protect in raising this issue and as such the jurisdiction of this Court cannot be invoked through ground 6 of the Amended Notice of Appeal.
On ground three of the objection it is submitted that the admission of Exhibits 1 and 3 grounded in grounds 14 and 15 of the Amended Notice of Appeal was made vide a ruling of the trial Court in an interlocutory application, which was not appealed within 14 days contrary to Section 24(2) of the Court of Appeal Act.
That even though the appellant can appeal, an Interlocutory application along with the final, the interlocutory decision must be specifically appealed against or leave to do so obtained; learned counsel referred the Court to NALS & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR part 212 at 652.
Learned senior counsel for the respondent urged the Court to sustain the preliminary Objection and strike out grounds 1, 2, 6, 14 and 15 of the Amended Notice of Appeal, and dismiss issues 1, 5 and 6.
It is very
important to state from the onset that the Notice of Preliminary Objection is most inappropriate in circumstance such as this; see AUDU V. GIDEON [2015] 12 NWLR (PT.1474) 495, ODUNUKWE V. OFOMATA (2010) 18 NWLR (PT.1225) 404, MUHAMMED V. MILITARY ADMINISTRATOR, PLATEAU STATE (2001) 16 NWLR (PT.740) 524, NDIC V. ORANU (2001) 13 NWLR (PT.744) 183.
The purpose of a preliminary Objection incorporated in a brief is to contend that the appeal is incompetent and fundamentally defective and if it succeeds, put an end to the appeal.
?
The Notice of preliminary Objection raised against grounds 1, 2, 6, 14 and 15 is inappropriate, because in this case, even if it succeeds, it will not terminate the appeal; see NEPA V. ANGO (2001) 15 NWLR (PT.737) 627; AUDU V. GIDEON (SUPRA).
The Supreme Court had this to say in this regard in OKEREKE V. JAMES (2012) 16 NWLR (Pt.1326) 339:
”A Preliminary Objection is filed against the hearing of the appeal. The clear intention being to contend that the appeal is incompetent or fundamentally defective. Consequently, if it succeeds, the hearing of the appeal abates. Where a Respondent’s objection, if successful, would
not terminate the hearing of the appeal, a motion on notice should be filed.” See also ODUNUKWE V. OFOMATA, where the Supreme Court once again held: at 423:
“Nowadays, preliminary Objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground/s of appeal, as in this appeal, and the other ground/s are in order, and can sustain the appeal, the Respondent ought to file a motion on notice to strike out the incompetent ground/s and not a preliminary Objection. Finally, and for emphasis, a preliminary Objection is filed any against the hearing of the appeal, and not against the one or more of the grounds of appeal.?
The Respondent ought to have filed a motion and not a Preliminary Objection, especially as grounds abound to sustain the appeal even if the ones complained of are struck out; for the same reason this Court dismisses the Preliminary Objection without much ado.
Now the Court is addled only with the substantive appeal, which it proceeds to resolve.
ISSUE ONE:
Whether the trial Court had jurisdiction to determine the suit.
It is submitted for the Appellant that the plaintiff is estopped from bringing the suit at the trial Court because it was a party to suit No.FHC/YNG/CS/465/2003 and appeal No.CA/PH/146/2008; from which this appeal emanated, and except for the 2nd defendant who is a nominal party, the subject matter in both cases is the same.
Learned senior counsel submitted that suit No.FHC/HC/CV/1554/06 is in violation of the principle of res
judicata; he referred this Court to AYENI V. ELAPO (2007) All FWLR part 383 at 73.
Learned senior counsel further submitted that even though the previous judgment only awarded damages to the appellant without awarding the land in dispute, it is clear that the terms of settlement which was endorsed as a final judgment of the Court determined all the issues concerning the disputed land; learned senior counsel referred the Court to HONDA PLACE V. GLOBE MOTORS HOLDINGS NIG. LTD (2005) All FWLR part 283 at 4; INAKOJU V. ADELEKE (2007) All FWLR part.
Learned senior counsel urged this Court to look at the claim of the plaintiff in this suit, and compare it with the other, as well as the pending appeal in FHC/YNG/CS/465/2003 to
determine whether the two suits and the appeal are one and the same; learned senior counsel referred this Court to OGOEJEOFO V. OGOEJEOFO (2006) All NWLR part 301 at 1792.
I agree with learned senior counsel for the 1st Respondent that it would appear that issue number six from the Appellant?s Brief is derived from grounds 14 and 15 of the Amended Notice of Appeal; particularly as the said issue challenges only the propriety of the admission of Exhibit 3 in evidence before the trial Court.
Clearly issue number six can only relate to ground 15 because it is the only ground that questions the propriety of the admission of Exhibit 3; ground 14 on the other hand challenges the admission of Exhibit 1.
That being so, no issue has been formulated from ground 14 of the Amended Notice of Appeal, to that extent it is deemed abandoned; where a ground of appeal is abandoned, as in this case, the abandoned ground is simply ignored and the appeal is decided only on the basis of the grounds in respect of which issues have been distilled and arguments canvassed. At the very least, the Court may merely observe, albeit in passing, that such grounds have been
abandoned, and then move on with the more serious business of deciding the appeal, without the unnecessary distraction of having to listen to or read lengthy and alas, sometimes, convoluted arguments on such an abandoned ground; see ARAKA V. EJEAGWU (2000) 15 NWLR (Pt. 692) 684 at 699.
That settled, it ought to be borne in mind that the doctrine of res judicata serves the sole purpose of putting an end to litigation, by preventing the agony of having to go through litigation twice on the same subject matter; ”What the principle of res judicata means is that where a competent Court has determined an issue and entered judgment thereon neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim, since the matter is res judicata?. PER ADIO, J.S.C.
Three essential elements are involved in the plea of res judicata namely:-
(a) An earlier decision on the issue;
(b) A final judgment on the merits; and
(c) The involvement of the same party, or parties in privity with the original parties.
?In this case even by the admission of the learned senior counsel for the appellant in his brief;<br< p=””
</br<
“…the suit from which this appeal emanated is one and the same except the 2nd defendant who is a nominal party…”
That in itself disqualifies the case from being stopped per rem judicata; having said that I cannot help but agree with learned senior counsel for the 1st Respondent that assuming the parties, issues and subject matter of this appeal are the same, by the admission again, at pages 4 to 5 of the Appellant?s Brief, to the effect that the decision in FHC/YNG/CS/465/2003 is the subject of an appeal in CA/PH/146/2008 it will now follow that the applicability of res judicata to this case is dislodged.
What this means in plain parlance is that where it is shown that there is an appeal against a decision sought to be relied on as constituting estoppel per rem judicata such a decision cannot be relied upon.
Estoppel per rem judicata operates when there is a final decision by a Court of competent jurisdiction, whose decision has not been challenged legally, e.g. by way of appeal, or if appealed against, final decision has been made by competent Court or Courts, and that decision is between their privies, and the issue or subject
matter is the same; see BALOGUN V. ADEJOBI (1995) 2 NWLR part 371 at 131 and also OLUKOGA V. FATUNDE (1996) 7 NWLR part 462 at 532.
It is a catch 22 situation for the appellant, all arguments with regard to estoppel per res judicata cannot hold as it is; the jurisdiction of the trial Court to determine the suit was unaffected, accordingly this issue is resolved in favour of the 1st Respondent, and against the appellant.
ISSUE TWO:
Whether from the records of the Court there is evidence of service of the notice of revocation on the 1st Respondent.
It is submitted for the Appellant that the notice of revocation was served on the 1st Respondent, that the trial Court also came to this conclusion; learned counsel referred this Court to paragraphs 13 of page 3 of the record of appeal, 16 of page 4, 14 of 33 and 17 of 16.
That the affidavit of Friday Ochoti of the firm of the 1st Respondent’s counsel admitted at paragraph 4j that the plaintiff was served with a letter of revocation dated 9th of May, 2006.
?Learned senior counsel further submitted the depositions and statement on oath of Mohammed Bala are
admissions on the part of the
1st Respondent that it was served with the notice of revocation; he referred the Court to Section 123 of the Evidence Act, 2011 and U.A.A. PLC V. JARGABA (2007) All FWLR part 380 at 1436; and contended the trial Court was wrong therefore to hold that there was no service on the 1st Respondent.
It is submitted for the 1st Respondent that the first 1st Respondent amended his statement of claim with leave of
Court on the 10th of November 2008, a fact admitted by learned counsel to the appellant at page 9 of his brief; learned senior counsel for the 1st Respondent referred this Court to OSEYOMON V. OJO (1997) 7 SCNJ 365 at 381, AHMED V. REGD. TRUSTEES A.K. RCC (2007) All FWLR PART 347 AT 625 and contended that whatever was pleaded in the 1st Respondent?s Original Statement of Claim became irrelevant with the amendment.
Learned senior counsel further submitted that the burden of proving service of revocation lies on the appellant and not the 1st Respondent who denied it; he referred the Court to Section 135 of the Evidence Act and OKUBULE V. OYAGBOLA (1990) 4 NWLR part 147 at 723.
?The notice of revocation of a right of occupancy is indeed very
important, because it informs the holder thereof the steps taken to extinguish his right of occupancy; thus the service of notice of revocation is sine qua non; and the mode of service of such notice is prescribed in Section 44 of the Land Use Act; which reads:
“any notice requiring by this Decree to be served on any person shall be effectively served on him, (a) by delivering it to the person on whom it is to be served; (b) by leaving it at the usual or last known place of abode of the person; (c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; (d) in the case of an incorporated company or body, by delivering it to the Secretary or Clerk of the Company..?
Where the revocation is not carried out in accordance with the provisions of the Act, it goes without saying that such revocation would be set aside as null and void; OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (Pt.184) 157.
Now in view of this position of the law this Court is in complete agreement with the trial Court in its findings, because it is preposterous to say the least, in the considered
opinion of this Court, to expect a notice of revocation addressed to No. 1270 Amazon Street Maitama, Abuja, to end up being served at No. 29 Amazon Street, Maitama Abuja.
Service of processes is not rocket science, and even if it were, because of its importance, the law requires that parties be served with processes in their addresses for service. Not the neighborhood or similar addresses. It just has to be right in the first instance, otherwise there is no service; and the consequence of that is any purported revocation will be invalid; no matter what else.
The service of revocation notice meant for the 1st Respondent on one Peter Ter is equally beyond comprehension; the learned trial judge could not be more apt in his finding at page 1090 of the record of appeal when he held:
?..service on one Peter Ter, whose identity is not known even though has not disowned him…the said Peter Ter is not within the contemplation of Section 44 of the Land Use Act.”
It is clear that the 1st Respondent amended its original statement of claim with leave of the trial Court on the 10th of November, 2008; that being so whatever was pleaded in the 1st
Respondent’s Original Statement of Claim is irrelevant, and therefore useless; see SHELL PETROLEUM COMPANY OF NIGERIA LTD V. AKIRI MARINE ENGINERRTNG CO. LTD. (2010) LPELE 8966-CA.
Now in view of these, it matters very little, at least in the eyes of the law, whether or not the 1st Respondent admitted service in its original statement of claim, before the amendment, see ROTIMI V. MACGREGOR (1974) 11 SC 133 AT 152; (1974) 1 NMLR (PT.11) 325 at 430 quoting the English case of WARNER V. SAMPSON & ANOR. (1959) 1 QB 297, that: ?Once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried.? per Onu, J.S.C.
Even if the affidavit of Friday Ocholi is accepted without question, the strenuous effort on the part of learned senior counsel for the appellant, suggesting that service was admitted therein, and therefore effected, is not likely to amount to much in view of the position of the law, Section 135 of the Evidence Act, 2011, that the burden of proving service of notice of revocation is borne by the appellant, who made the assertion, and not the 1st Respondent, who
argues there was no service.
The onus of proving a particular act lies on the party asserting it in civil cases, this onus is fixed by the
pleadings, it does not remain static but shifts from side to side. The onus of adducing evidence is on the person who will fail if such evidence is not adduced, see BASHEER V. SAME (1992) 4 NWLR (PT.236) 491 AT 503 & 504; OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT.147) 723; NIGERIAN MARITIME SERVICES V. AFOLABI (1978) 2 SC; OSAWARU V. EZEIRUKA (1978) 6 – 7 SC 135.
I agree with the trial Court, given the averments in the respective pleadings, especially that of the 1st Respondent’s Amended Statement of Claim, there was no admission of service of the notice of revocation on the 1st Respondent. What is apparent is that the said notice of revocation was served on a different address to that of the 1st Respondent; accordingly this issue is resolved in favour of the 1st Respondent, and against the appellant.
ISSUE THREE:
Whether the evidence before the trial Court was property evaluated by the learned trial judge.
It is submitted for the appellant that the plaintiff failed to prove its case, but the
trial Court held otherwise; that also the plaintiff bears the burden of establishing his claim to the land, he cannot rely on the weakness of his opponent’s case; learned senior counsel referred this Court to OSIEBU V. OKOH (2006) A FWLR part 303 at 279 and ODUNZE V NWOSU (2007) A FWLR part 379 at 1337.
Learned senior counsel had argued the matter of the notice of revocation but still argues that the trial judge erred by holding that Exhibit 15(a) improperly served.
That also the Court ought to have to looked at the old statement of claim; he referred the Court to UZODINMA V. IZUNASO (No. 2) (2011) 17 NWLR part 1275 at 88.
?Learned senior counsel further submitted and relied heavily on the inconsistent evidence of the 1st Respondent, and failed to take cognizance of the case presented by the defendants, whose evidence was consistent and unequivocal; he referred the Court to OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) All FWLR part 497 at 41 and EZEMBA V. IBENEME (2004) Al FWLR part 1786 at 1816.
That the trial Court failed to properly evaluate the evidence of the appellant and in doing so failed to do justice; he urged this Court to set aside trial
Courts judgment.
It is submitted in response that an Appellate Court can only interfere where a improper use of the opportunity of hearing of witnesses is made or wrong conclusions were drawn from proven facts; learned senior counsel referred the Court to FASHANU V. ADEKOYA (1974) 5 S.C
That the trial judge property evaluated the evidence and found that there was no service on the 1st Respondent, especially as where a statute has provided for a procedure of doing a thing only that procedure can be followed; he referred the Court to OKEREKE V. YAR?ADUA (2007) 12 NWLR part 1100 at 127.
It is generally the prerogative of a trial judge who sees and listens to witnesses, to choose or decide whom to believe or disbelieve, and ascribe probative value to such evidence. It is not the place or function of an appellate Court to evaluate evidence, which has already been evaluated by a trial Court, which has not been shown to be perverse. An Appellate Court will not interfere with findings based on such evaluation unless it is found to be erroneous; See CHINDO WORLDWIDE LTD. V. TOTAL (NIG.) PLC. (2001) 16 NWLR (PT.739) 291.
Learned senior
counsel to the Appellant?s contention is that if the trial Court had properly evaluated the evidence before it, it would have come to the conclusion that the 1st Respondent admitted being served with the notice of revocation, i.e. Exhibit 15a.
The law is well settled on this score, because no Appellate Court worth its name will substitute the findings of the trial Court with its own, even if it would have come to a different conclusion if it had tried the matter in the first; instance, and the rationale is that the Court that had the opportunity of listening to witnesses, and observing their respective demeanours is better placed, to ascribe probative value to such evidence, not the Appellate Court;
“In its duty of evaluation, a trial Court has the responsibility to fully consider the evidence of the parties, ascribe probative value to it and put same on the imaginary scale of justice to determine the party in whose favour the balance tilts.” AKANNI V. OLANIYAN (2007) All FWLR part 380 at 1556.
The trial Court in the considered opinion of this Court properly considered the evidence before it; see pages 1088 to 1089 of the record of appeal,
volume 3, before arriving at the conclusion it did, especially on the vexed question of whether the 1st respondent admitted service of the notice of revocation.
The trial Court took time to consider the procedure for service of revocation notice in Section 44, along with Section 28 of the Land use Act, Exhibits 15a, b, and c, and faultlessly evaluated the evidence at pages 1987 to 1088 of the record of appeal before coming to the conclusion it did.
The findings of the trial Court are not only proper, but correct conclusions, supported by evidence before it. It is equally not perverse in any sense of the word, for the reason of which this Court sees neither need nor necessity to disturb same; see AJAO V. ALAO (1986) NWLR (Pt.45) 802; OSHE v. OKIN BISCUTTS LTD (2010) 11 NWLR (Pt.1206) 482; CHUKWU v NNEJI (1990) 6 NWLR (Pt.156) 363; accordingly this issue too is resolved in favour of the 1st respondent, and against the appellant.
ISSUE FOUR:
Whether the trial Court was right in setting aside the revocation after holding that the 1st respondent was in breach of the Certificate of Occupancy.
It is submitted for the appellant that since the
1st Respondent had admitted service of the notice of revocation, the trial judge was wrong by going into whether the mode of service was proper, because doing so now means approbating and reprobating.
That the Court is not allowed to interpret a statute in such a way as would avoid its consequences; that the Court was swayed by the consequences of holding that the revocation was valid, as a result of which it went into on a voyage of discovery, to ascertain the mode of service of the notice of revocation; learned senior counsel referred the Court to UGWU V. ARARUME (2007) A FWLR part 377 at 807 and ADETORO V. U.B.N PLC (2007) All FWLR part 396 at 626.
In response it is submitted for the 1st Respondent that the appellant’s statements of defense, both the original and the amended pleaded that the revocation of the 1st respondent’s right of occupancy was served on the 1st respondent; and that being so, learned counsel argued the onus of proving that assertion is on the appellants.
That also the power of the 2nd Respondent under Section 28 (5) of the Land Use Act can only be exercised in compliance with Section 28(6) and (7) of the Act.
The
trial Court did indeed find at page 1086 of the record of appeal volume 3 that: “I hold the view that the property, the subject matter of this suit was not developed by the plaintiff as at 9th of May, 2006 …the 1st defendant was right in evoking his powers under Section 28 (5) (b) of the Land Use Act by issuing Exhibit 5 or 15a?
But Exhibit 15c, the proof of service shows that the notice i.e. Exhibit 15a was served on peter Ter, who is not only unknown to the 1st respondent, but also not a party to the case; and the service of the notice, i.e. Exhibit 15a was effected on No.29 Amazon Street, Maitama, not the address of the 1st Respondent.
Section 28(6) requires that notice of revocation be given of the revocation, and (7) emphasizes receipt of the said notice by a holder of a right whose title is sought to be extinguished; the procedure is clearly spelt out in Section 44.
It should be noted that the law requires strict compliance with the procedure in Sections 28 and 44 of the Land Use Act; and that being so, the trial Court was right in view of the evidence at the trial
to come to the conclusion that 1st respondent was not validly served with the purported notice of revocation Exhibit 15a; it couldn?t have closed its eyes to that.
The issuance of a notice of revocation under Section 28 is one thing, and service of the said notice in compliance with Section 44 of the Land Use Act is another thing; the trial Court was right in setting aside the purported notice of revocation in the circumstances of this case; this issue is accordingly resolved in favour of the 1st respondent, and against the appellant.
ISSUE FIVE:
Whether the order of perpetual injunction made by the trial Court was proper.
It is submitted for the appellant that it is wrong for a Court to restrain the 2nd and 3rd respondents from performing their statutory duty; learned senior counsel referred the Court to RANSTON PROPERTIES LTD V. F.B.N.PLC (2007) All FWLR part 392 at 1963.
That injunction is a discretionary power that cannot be exercised at large; he referred the Court to AKPUGHUNUM v. AKPUGHUNUM (2007) All FWLR part 376 at 759.
?That a perpetual injunction cannot be granted as it a derogation of the constitutional provision
of separation powers; that the Court cannot stop the performance of statutory duty/ therefore an order of perpetual injunction wrong and improper in the circumstances.
In response it is submitted for the 1st Respondent that since the observation by the trial Court that the 1st
respondent had breached clause 4 of Exhibit 1 was an orbiter dictum, it did not therefore adjudge the 2rd and 3rd respondents right in terms of any legal right to warrant the conclusion that a Court cannot restrain a party in the right.
It is the considered opinion of this Court that the perpetual Injunction granted in favour of the 1st respondent does not prevent the 2nd and 3rd respondents from exercising their futuristic statutory functions; the injunction only restrains the 2nd and 3rd respondents in respect of the facts constituting the cause of action that led to this case.
?This is the nature of a perpetual injunction, because it is based on a final determination of the rights of parties, and it is intended to prevent permanent infringement of those rights, and obviate the necessity of bringing an action again and again in respect of every such infringement.<br< p=””
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A perpetual injunction is not, and should not close the doors of justice, but stave off injustice; the order in this case is not to ‘perpetually’ prevent the 2nd and 3rd respondents from revoking certificate(s) of occupancy in appropriate cases, where the need arises, that much is trite; and as rightly pointed out by learned senior counsel for the 1st respondent, even if the 1st respondent did not ask for it the trial Court would be right to have granted it in the circumstances, see EKWEREMADU V. OHAJURUKA (2002) FWLR part 103 at 480; it follows therefore, that the trial Court was right in granting the perpetual injunction; accordingly this issue too is resolved in favour of the 1st respondent, against the appellant.
ISSUE SIX:
Whether the trial was right in admitting in evidence Exhibit 3 which is a photocopy of the certified true copy of the certificate of occupancy.
Learned senior counsel for the appellant submits that the only admissible evidence of a public document is a certified true copy of that document and not the photocopy of the certified true copy; learned counsel referred the Court to OGBORU V. UDUAGHAN (2011) 2 NWLR part 1232 at
538, and contended that the admission of Exhibit 1, the photocopy of the true copy of the certificate of occupancy was wrong.
In response it is submitted for the 1st Respondent that the appellant only objected to the admissibility of Exhibit 1 but did not object to Exhibit 3.
It is clear from the record of appeal at page 1163 to 1164 of volume 3 that the appellant did not object to the admissibility of Exhibit 3; be that as it may, it is settled law that the Court can expunge an inadmissible document admitted with or without objection, see NIPC LTD. V. THOMPSON ORGANIZATION LTD. (1966) 1 NI4LR 99 at 104 where LEWIS, J.S.C. stated the law as follows:-
“It is of course the duty of counsel to object to admissible evidence and the duty of trial Court any way to
refuse to admit inadmissible evidence, but if notwithstanding this evidence is admitted still through oversight or otherwise then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted”.
But having said that I fail to see the reason or rationale why a photocopy of a certified true copy of a document should not be
admissible in evidence; the whole logic behind certification is to authenticate the source and content of a public document. If indeed it is certified, common sense, logic and even law, I dare say dictates that such document be admitted, it is only prudent to do so.
Law is not about creating difficulties or twists and turns, not in this era of digitization. Law has to move in tandem with other aspects of our lives, already we are playing catch up, else we stand the risk of being left behind to mourn and groan as we often do.
Thankfully this view is shared admirably in MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR part 1089 388 at 396 that:
“Generally, photocopies of documents must be certified. A photocopy of a certified document is admissible. Thus, photocopies of certified true copy of a public document needs no further certification; DAILY TIMES LTD V. WILLIAMS (1986) 4 NWLR (PT.36) 526; INTERNATIONAL BANK NIG. LTD. V. DABIRI (1998) 1 NWLR (PT.583) 284.” PER OGBUAGU, J.S.C.
It is common ground that what was admitted in evidence at the trial Court was a photocopy of a certified true copy of a certificate of occupancy. There is a divergence of
judicial opinion as to whether a photocopy of a certified true copy of a public document is admissible in evidence. Sections 89 (e) and (c) (i) of the Evidence Act are to the effect that the secondary evidence admissible of a public document is a certified true copy of the document but no other secondary evidence,
In the case of MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE (1969) AN 48, 57 58, the Supreme Court held firmly that a photocopy of a certified true copy of a public document is not admissible in evidence in the light of the words “no other secondary evidence is the admissible” in Section 90 (i) of the Evidence Act and to prevent the possibility of a photo-trick. This has been followed in a plethora of other cases including OGUNLEYE V. AINA (2011) 3 NWLR (1235) 497, 580 and OGBORU V. UDUAGHAN (2011) 2 NWLR (1232) 538
?On the other hand, it has been held in a plethora of other cases that such a document is admissible in evidence since it is a photographic reproduction of the certified true copy of a public document. One of such cases, indeed, the leading case in the line of authorities is DAILY TIMES NIG. LTD. V. WILLIAMS (1986) 4 NWLR (36)
526. It must however be noted that Daily Times Nigeria Ltd Supra was a decision of the Court of Appeal which cannot supercede the decision of the Supreme Court in the Minister of Lands, Western Njgeria case Supra. There is also the case of MAGAJI V. NIGERIA ARMY (2008) 8 NWLR (1089) 338, referred to earlier.
It is noteworthy that the opinion of Ogbuagu, J.S.C., was expressed in a supporting judgment and the issue was not raised at the Supreme Court. Thus, it is with due respect not a binding declaration of the law on this subject as it was an orbiter dictum.
It follows therefore that the binding authority on this subject is the case of Minister of Lands, Western Nigeria Supra. On this authority therefore, Exhibit 3 was inadmissible and ought to have been expunged from the record. This issue in consequence resolved in favour of the appellant, and against the 1st respondent.
However, the success of this issue has no bearing on the appeal as a whole as the existence of the said certificate of occupancy was never in dispute between the parties.
Having resolved all the issues for determination except issue No. 6 in favour of the 1st Respondent,
against the Appellant, the appeal fails for lack of merit, and it is accordingly dismissed, the judgment of the trial Court, Coram D. Z. Senchi J, of the 11th of October,2010, is hereby affirmed.
Cost of N50,000.00 is awarded in favour of the 1st Respondent against the Appellant.
ABDU ABOKI, J.C.A.: I agree.
JOSEPH E. EKANEM, J.C.A.: I had the privilege of reading in advance the judgment which has just been delivered by my learned brother, Mohammed Mustapha, J.C.A. I agree with the reasoning and conclusion therein and I also dismiss the appeal for lack of merit.
I abide by the consequential orders made therein.
Appearances
Karina Tunyan, SAN with him, K. Mefulu, Esq., M. D. Numa, Esq., D. D. Tunyan, Esq., K. Eze-Wunze, Esq., and Adodo, Esq.For Appellant
AND
S. T. Ologunorisa, SAN with him, Miss I. C. Efoenemokwu, O. V. Ali, Esq., C. C. Nwadike, Esq., Miss K. C. Obe, Miss A. R. Ogbole, Miss Z. O. Mohammed, Miss R. O. Onosile and M. D. Jedy-Agba, Esq. for 1st RespondentFor Respondent
