MR. TUNJI ADIGUN v. IBADAN NORTH LOCAL GOVERNMENT (2016)

MR. TUNJI ADIGUN v. IBADAN NORTH LOCAL GOVERNMENT

(2016)LCN/8339(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/I/343/2014

RATIO

EVIDENCE: BURDEN OF PROOF AND STANDARD OF PROOF; THE STANDARD OF PROOF WHERE THERE IS AN ALLEGATION OF FRAUD AND WHERE THE THE RESPONDENT MADE SURE ALLEGATION

Now the law is very clear. Where there is an allegation of fraud as in this case where the respondent made such an allegation, the standard of proof is not one of balance of probabilities, it is one that requires proof beyond reasonable doubt. I need not go further in stating this trite position of the law than to refer to the statement of the law on it by the Supreme Court, per Ogwuegbu JSC in the case of Kolki v. Magnusson (1999) 8 NWLR part 615 p.492. Said his Lordship:
In my view, the commission of crime by the defendant in this proceeding is a fact directly in issue and the plaintiffs are required in law to discharge the burden of proving the crime or the offence of fraud and misrepresentation beyond reasonable doubt. The standard of proof required of the plaintiff to succeed is not that of balance of probabilities.”
The above statement remains the position of the law. No amount of sophistry can remove it, lessen it, or wish it away. It has ossified in our law. per. OBIETONBARA DANIEL-KALIO, J.C.A.

EVIDENCE: WHEN IS A FACT SAID TO BE PERVERSE

It is settled law that a fact is said to be perverse where among other instances, it is found as in this case, that it runs counter to the evidence and the pleadings. See Mini Lodge Ltd. V. Ngel (2009) 18 NWLR part NWLR part 1173 p.254. The said finding of the learned trial judge being one that is perverse is hereby set aside. See Omokhafe v. Eselekhomo (1993) NWLR part 309 p.58. per. OBIETONBARA DANIEL-KALIO, J.C.A.

A DECREE OF SPECIFIC PERFORMANCE: WHAT IS A DECREE OF SPECIFIC PERFORMANCE

A decree of specific performance is a decree issued by the Court which constrains a contracting party to do that which he has promised to do. See Universal Vulcanizing (Nig.) Ltd. v. I.U.T.T.C (1992) NWLR part 266 p.388. A party seeking such a decree must show that he has performed all conditions precedent to the performance of the contract or that he is ready and willing to perform all the terms which he ought to have performed. See per Wali JSC in Anaeze v. Anyaso (1993) 5 NWLR part 291 p.1. per. OBIETONBARA DANIEL-KALIO, J.C.A.

JUSTICES:

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

MR. TUNJI ADIGUN – Appellant(s)

AND

IBADAN NORTH LOCAL GOVERNMENT – Respondent(s)

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over the judgment of the High Court of Oyo State in a land matter. The facts before the lower Court as pleaded in the Statement of Claim show that the Appellant Tunji Adigun (the Claimant in the lower Court) applied to the Ibadan North Local Government (the defendant in the lower Court) for the allocation of a piece of land to him. Consequent upon the application, the respondent granted the Appellant an allocation of land by way of a lease. The land is at Block/quarters 87, plot 2, Agodi GRA, Agodi, Ibadan. The appellant was requested to pay the sum of N87,000 for the allocation. He paid it and was issued with a Treasury Receipt No. A720774 of the Ibadan North Local Government dated 22/11/2002. Having paid the required fee, the appellant bought building materials preparatory to carrying out building construction work on the land. It was at that stage that he met a brick wall. The respondent refused to give him possession of the land. All pleas by him to the respondent to be allowed to take possession of the land failed. As a result, he instructed his lawyer to write to the

respondent on the matter. That too failed. All efforts having failed, the appellant approached the lower Court for redress.

By a writ of summons filed on his behalf at the lower Court, (the High Court of Oyo State) the appellant sought the following remedies:
“1. An order of specific performance ordering the defendant to execute a Deed of sublease of the land Block/Quarters plot B7, Plot 2, Agodi GRA, Ibadan in favor of the Claimant.
2. An order of perpetual injunction restraining the defendant whether by its agents, servants, or assignees from committing any act of trespass on the said land.
3. N1,000,000.00 general damages against the defendant for the continued trespass on the said plot of land.”

The Respondent disputed the claims of the Appellant. In its defence, it pleaded that the land in dispute was released to it only in 2008 by the Oyo State Government. It pleaded that following that release, it had since allocated the property to one Mr. Fola Owolabi for a term of 75 years. It pleaded that it doubted the authenticity of the documents relied on by the appellant in proof of his claim to allocation of the land insisting that it had

no record of any such transaction with the appellant. It went on to plead that the appellants claim was based on fraud.

After hearing the case of the parties, the learned trial judge gave judgment in favour of the respondent. He held that the appellant had not proved that the respondent allocated the land to him as claimed by the appellant. The learned trial judge dismissed all the claims of the appellant. Upset by the judgment the appellant on 9/5/14 filed a Notice of Appeal. He challenged the judgment of the learned trial judge on six grounds. The grounds without the particulars thereof are as follows:
“GROUND ONE
The learned trial judge erred in law to shift the burden of proof on allegation of fraud on the appellant by holding that: “Tendering of document alone is not conclusive of transaction, if the document is disputed then it is necessary for the document to be proved to have origin and legitimate existence and traceable to have emanated from the defendant. The document Exhibit B is claimed to have been signed by Mr. Akinkunmi, Director of Estate and Valuation; the Deputy Director of Estate and Valuation called denied the document

the claimant has a duty to subpoena Akinkunmi and question him on this, but the claimant decided to be silent on this material fact leaving the issue of legitimacy of the letter of allocation to speculation. Such failure is fatal and amounts to failure to prove vital aspect or foundation of the claimants case. Secondly on Exhibit C, treasury receipt for payment of the sum of money for allocation, the defendant denied the existence of the receipt. Let me say that tendering of receipt cannot by itself be evidence of payment. It only raises a presumption of payment. The claimant has a duty to call for the counterpart or counterfoil of the receipt from the defendant The claimant was also silent on this.
GROUND TWO
The learned trial judge erred in law by failing to order specific performance of the lease contract in favour of the Claimant in spite of the claimants unimpugned documentary evidence. GROUND THREE
The learned trial judge erred in law to hold the initiatory process fundamentally defective after having held that “Mr. Tunji Adigun sued as claimant as stated on the Writ of Summons. In fact, he signed the

Writ although he is not a legal practitioner. He is entitled to do in any event but I would warn that because of the intricacies and requirements of pleadings, he may fall into a detected mine as would be shown later.
GROUND FOUR
The learned trial judge erred in law when he refused the Appellants claim for damages for trespass when it is the law that the payment of the purchase price by a party for a property automatically confers a right on the party.
GROUND FIVE
The learned trial judge erred in law when he refused to grant the Appellant’s application to amend his writ of summons even when there was no counter-affidavit opposing same by the Respondent.
GROUND SIX
The judgment is against the weight of evidence. The learned trial judge misdirected himself in law and on the evidence by failing to observe that the claimant established by evidence what he pleaded, namely that the land in dispute was allocated to him in 2002 by the defendant.”

The Appellants Brief of Argument was prepared by T. O. Onipede Esq, it was filed on 7/8/14. Four issues for determination of this appeal were distilled from the six

grounds of appeal. The issues are:
1. Whether having regard to the Appellants Exhibits B and C which were not impugned by the Respondent, it could be said that the Respondent proved its allegation of fraud against the Appellant as to allow a shift of the burden of proof. (Distilled from ground 1 of the grounds of appeal).
2. Whether the trial Court was right to have held that the Appellant failed to prove his case against the Respondent. (Distilled from grounds 2, 4 and 6 of the grounds of appeal).
3. Whether the initiatory process was fundamentally defective. (Distilled from ground 3 of the grounds of appeal); and
4. Whether the learned trial judge was right in law to refuse the Appellant’s application to amend his writ of summons. (Distilled from ground 5 of the grounds of appeal).

The Respondents Brief was prepared by Abiola Olagunju Esq, it was filed out of time on 29/9/15. However, by an order of this Court of 11/11/15, it was deemed properly filed on the said 11/11/15. Like the appellant, the respondent distilled four issues for determination. The issues are:
1. Whether from the state of the pleadings and the evidence adduced, it could be said

that the respondent proved its allegation of fraud against the appellant and thereby shifted the rebuttal of same to the appellant. (Distilled from ground 1 of the grounds of appeal.
2. Whether the trial Court was right to have held that the appellant failed to prove his case against the respondent. (Distilled from grounds 2, 4 and 6 of the grounds of appeal).
3. Whether the initiatory process was fundamentally defective. (Distilled from ground 3 of the grounds of appeal).
4. Whether the learned trial judge exercised his discretion rightly in refusing to grant the appellants motion to amend his writ of summons. (Distilled from ground 5 of the grounds of appeal).

It is clear from the issues formulated above that there is no divergence of views as to what the issues for determination are. The parties are ad idem on what the issues are.

Issue 1 as framed by the appellant as will be recalled, is whether the respondent proved its allegation of fraud against the appellant, particularly as it relates to the burden of proof. On this issue, appellants learned counsel submitted that fraud has to be specifically pleaded and since

it is an imputation of a crime, it has to be proved beyond reasonable doubt even in a civil case. The burden of proving the allegation of crime, it was submitted, does not shift from the party alleging it. We were referred to Section 135(1)(2) and (3) of the Evidence Act 2011 and the cases of Babatunde v. Bank of the North Ltd (2011) 12 SCM Part 2 p. 99 and The People of Lagos State v. Umaru (2014) 5 SCM P. 156 at 174. Learned counsel submitted that the particulars of fraud pleaded by the respondent did not point to any particular instance of fraud. It was rather intriguing according to the appellant learned counsel, that whereas it was the respondent’s case that there was no transaction between it and the appellant, the respondent admitted Exhibits B and C and did not cross-examined the appellant’s witnesses on them. Learned counsel submitted that the respondent did not prove its allegation of fraud, let alone prove it beyond reasonable doubt. Learned counsel submitted that the learned trial judge was wrong to have shifted the burden of proof as it relates to the allegation of fraud, to the appellant. It was submitted that the respondent abandoned its duty to

prove the allegation of fraud against the appellant.

In arguing issue 1, the Respondent’s Learned counsel referred us to Section 133(2) of the Evidence Act and submitted that the burden of proof shifts in civil proceedings. Learned Counsel acknowledged however that where the commission of a crime is alleged or is directly in issue in civil proceedings, the standard of proof required is “beyond reasonable doubt.
Learned counsel submitted that there is a legal burden of proof and an evidential burden of proof. Distinguishing between the two, it was submitted that a legal burden of proof requires that facts and contentions which support a partys case be established by that party. Evidential burden of proof however according to learned counsel, shifts as the trial progresses, depending on the balance of evidence at any particular stage in the proceedings. The case of Nwaun & Ors v. Okoye & Ors (2008) 12 SCM part 1 p.111 at 137-138 was cited in support. Learned Counsel submitted that the respondent discharged its evidential burden of proof through paragraphs 6, 7 and 8 of the written statement on oath of its witness. Evidence in those

paragraphs he submitted, substantiate paragraphs 8 and 9 of the Statement of Defence. Having discharged its evidential burden of proof through the said statement on oath, learned counsel submitted that it was for the appellant to provide further evidence in rebuttal of the said written statement on oath. The appellant it was submitted failed to provide the required further evidence. Learned Counsel submitted that the fact that Exhibits B and C were admitted in evidence did not mean that the facts contained in the said Exhibits were admitted by the respondent. It was contended that the respondent proved its allegation of fraud against the appellant. It was further contended that the learned trial judge was right to have shifted the burden of rebuttal of same to the appellant.

Ogwuegbu JSC in the case of Kolki v. Magnusson (1999) 8 NWLR part 615 p.492. Said his Lordship:
In my view, the commission of crime by the defendant in this proceeding is a fact directly in issue and the plaintiffs are required in law to discharge the burden of proving the crime or the offence of fraud and misrepresentation beyond reasonable doubt. The standard of proof required of the plaintiff to succeed is not that of balance of probabilities.”
The above statement remains the position of the law. No amount of sophistry can remove it, lessen it, or wish it away. It has ossified in our law.

The defendant in the lower Court (the respondent in this appeal) pleaded in paragraph 9 of its Statement of Defence as follows:
“9. Further to paragraph 6 above, the defendant shall contend that the Claimants claim is rooted in fraud as there is no transaction between it and the claimant on the land in question.
PARTICULARS OF FRAUD
(a) The claim of the claimant in paragraphs 4 and 5 of his statement of claim and the Letter of Allocation dated 7th November, 2002 attached thereto as Exhibit B purportedly informing the claimant of the allocation for a property

not in the possession or authority of the defendant.
(b) The Treasury Receipt dated 22nd November, 2003 attached as Exhibit C for payment of supposed approval.”

Paragraph 9 above is querying the genuiness of the Letter of Allocation dated 7th November, 2003 and also the authenticity of the Treasury Receipt issued to the appellant.

DW1 Madam Fajinmi Sherifat Omosalewa in her statement on oath made no attempt to prove that both documents i. e. the allocation letter and the Treasury receipt, were fraudulently obtained. Her statement was a bland repetition of paragraph 8 of the statement of claim wherein the respondent pleaded that it did not know about the existence of the documents. The bland repetition in the statement on oath of the position asserted in the statement of claim as done by DW1 cannot constitute proof, much less proof beyond reasonable doubt. If the respondent was serious about making out a case of fraud, it should have called Mr W. O. Akinkunmi who signed Exhibit B the letter of Allocation. Mr Akinkunmi, signed Exhibit B as the Director of Estate and Valuation on behalf of the Chairman, Ibadan North Local Government. If Mr. Akinkunmi

was no longer available to give evidence, at least a staff in the Estate and valuation Department should have been called to show that the letter of allocation could not have been issued to the appellant by the respondent.

Similarly, evidence should have been led to challenge the Treasury Receipt, Exhibit C. Exhibit C shows a receipt number and relevant subhead. Surely, it should be easy to prove that such a Treasury Receipt was a fake receipt. But there was no evidence adduced to show that Exhibit C was either fake or fraudulently received. Instead of holding that the burden of proving fraud beyond reasonable doubt was not discharged, the learned trial judge held rather surprisingly, that the appellant had failed to discharge a burden of proof placed on him. Said the trial judge at page 192 of the Record of Appeal.
“I have placed both versions of evidence together on an imaginary scale. I feel swayed by the defence and therefore I give heavy weight to the defence.
Tendering of document alone is not conclusive evidence of transaction. If the document is disputed then it is necessary for the document to be proved to have origin and legitimate

existence and traceable to have emanated from the defendant. The document Exhibit B is claimed to have been signed by Mr. Akinkunmi Director of Estate and Valuation: The Deputy Director of Estate and valuation called denied the document. The claimant has a duty to subpoena Akinkunmi and question him on this, but the claimant decided to be silent on this material fact leaving the issue of legitimacy of the letter of allocation to speculation. Such failure is fatal and amounts to failure to prove vital aspect or foundation of the claimant’s case.
Secondly on Exhibit C, Treasury Receipt for payment of the sum of money for allocation, the defendant denied the existence of the receipt. Let me say that tendering of receipt cannot by itself be evidence of payment. It only raises a presumption of payment. The claimant has a duty to call for the counter part or counter foil of the receipt from the defendant. The claimant was also silent on this …….”

Since it was the respondent that alleged fraud, it was for the respondent to prove it beyond reasonable doubt. There is no duty on the part of the appellant in that regard. An allegation of fraud is to be proved

beyond reasonable doubt by the party alleging it. Proof in such a case is not based on balance of probabilities. I must add that the implication of the failure to lead evidence in support of the pleading on fraud is that the pleading is deemed abandoned. See Alhaji Isiyaku Yakubu v. Alhaji Usman Jauroyel & Ors (2014) LPELR-22732 (SC). Issue 1 is resolved in favour of the appellant and against the respondent.

Issue 2 as will be recalled is whether the trial Court was right to have held that the appellant failed to prove his case against the respondent. On this issue, appellant’s learned counsel contended that Exhibits B and C show that there was a contract between the appellant and the respondent with regard to the land in dispute. He contended that during the trial, Exhibits B and C were neither controverted nor impugned. Furthermore, he submitted, the evidence of CW1 that the respondent allocated land to the appellant and that the appellant paid the required fees for the allocation of the land was not controverted. It was therefore contended that the learned trial judge erred in law when he held that there was insufficient material before the

Court to establish that the appellant was entitled to an order of specific performance. Learned counsel submitted that a party can claim for specific performance once that party has fulfilled his own part of the contract. In such a situation it was contended, it is proper in equity for a Court to grant a decree of specific performance. We were referred to the cases of Iragunima v Rivers State Houses and Property Development Authority (2003) 7 SCM 93 at 99 – 100; Ohiarei v. Yusuff (2009) 3 SCM 77 at 91, 96-97. Having executed his part of the contract for the land allocation, the appellant it was submitted, is entitled to an order of specific performance. The case of Help (Nig.) Ltd. V. Silver Achor (Nig.) Ltd. (2006) 5 NWLR part 972 p. 196 at 215 was cited in support.

Learned counsel contended that the finding of the learned trial judge where he held that as at 2002 the defendant had no right or authority over the land, was contrary to the evidence adduced before him. It was submitted that a combined reading of Exhibit F and Exhibits TA3 – TA9 show that the land in dispute was the bonafide property of the respondent as at 2002. We were urged to

reverse the finding of the learned trial judge. It was submitted that where the findings of fact made by a trial Court are not supported by evidence led, the appellate Court has a duty to interfere with such findings and make proper findings. The case of Highgrade Maritime Services v. First Bank (Nig.) Ltd. (1991) 1 NWLR part 167 p. 307 at 310 was referred to. It was submitted that the respondent having allocated the land in dispute to the appellant in 2002, it had nothing left to allocate to anyone else. The maxim nemo dat quod non habet was cited in support. Learned Counsel submitted that the allocation of the land to one Mr. Fola Owolabi was in the circumstances not a valid allocation. The case of Ojo v. Kamalu (2005) 18 NWLR part 958 p. 523 at 553 was cited in support. Learned counsel further submitted that Mr. Fola Owolabi was not a party before the lower Court and therefore judgment cannot be made in his favour. The case of Olubodun v. Lawal (2008) 17 NWLR part 1115 p.1 at p.34-35 was cited in support. It was submitted that, the appellant was in constructive possession of the land having done all that was required of him as shown in Exhibit C. It was further submitted that any form of possession is sufficient

to maintain an action against any wrong doer as long as possession is clear and exclusive. It was submitted that possession, actual or constructive will entitle a plaintiff to maintain an action for trespass. The cases of Amakor v. Obiefuna (1974) 3 SC 67; Atunwase v. Sunmola (1985) 1 NWLR part 1 p. 105 at 110; Egharevba v. Oruonghae (2001) 11 NWLR (2008) 12 SCM part 1 p.147 at 158; Onyero v. Nwadike (2011) 12 SCM 406 at 431 were cited in support. It was submitted that since trespass is actionable per se, the appellant will be entitled to damages for trespass. The case of Okunrinmeta v Agitan (2002) FWLR part 1001 p.1377 at 1391 was cited in support.

On issue 2, respondents learned counsel submitted that a party seeking to enforce a contract must show that it fulfilled all conditions precedent. It was submitted that a plaintiff in an action for specific performance who has not shown that he has fulfilled his obligations under a contract will fail. The case of FDB Financial Services Ltd. V Adebola (2000) 8 NWLR part 668 p.170 was cited in support. It was submitted that even if Exhibit B emanated from the respondent, the appellant did not prove that

it fulfilled Clause III of the said Exhibit. Learned Counsel submitted that the learned trial judge was right to have dismissed the appellant’s claims.

Now the main plank of the respondents case or defence is that as at 2002 when the appellant claimed that he was allocated the land in dispute by the respondent, the land did not belong to the respondent. The respondent claimed that it was itself only allocated the land by the Oyo State Government in 2008 vide a letter with reference number DRF/003/31 dated 21st April 2008. This position of the respondent was pleaded in paragraphs 4 and 13 of the Statement of Defence. In paragraph 13 of the Statement of Defence, the respondent pleaded inter-alia as follows:
“13. ..the defendant was not in possession of the said land at all the time material to the purported Claim of allocation of the land in dispute to the claimant.”

The pleaded position of the respondent, it would appear, was accepted by the lower Court lock, stock and barrel. The following is what the lower Court said:
“Therefore based upon the fact that as at 2002 when the claimant said allocation of the plot was

made to him vide Exhibit B, the defendant had no authority or right over the land. The right became vested pursuant to Exhibit F …… I find consistency in the pleadings and evidence of the defendant and I hold that the allocation claimed by the claimant is a sham. I hold without equivocation that the allocation is not proved to my satisfaction since as at the time the allocation was said to have been made the defendant had no such thing.
The principle is “nemo dat quod non habet you cannot give what you don’

t have. This is settled principle. (See at page 193 of the Record of Appeal.

But is it correct that by Exhibit F, the land was vested in the respondent only in 2008? I have scrutinized Exhibit F and I find that there is nothing in it that should lead to a conclusion that by it, the land became vested in the respondent in 2008. Exhibit F is a letter from the office of the Hon. Commissioner of the Ministry of Lands, Housing and survey of Oyo State. It is dated 21st August 2008 and addressed to the Director of Estate and Valuation, Ibadan North Local Government. It was signed by the Ag. Honourable Commissioner for Lands,

Housing and Surveys, Barrister Kunle Ishola. The salient part of Exhibit F reads:
“Dear Madam,
RE: NOTIFICATION OF THE USE OF FORMER RESIDENTIAL QUARTERS AND LANDS OF THE DEFUNCT IBADAN CITY COUNCIL, BESIDE THE STATE GRA AT AGODI.
This is to acknowledge the receipt of your letter reference number EVO.45/AGRA/01 dated 25th February 2008 on the above subject and to also inform you that from charting and investigation carried out at this end, the parcel of land depicted as plot 87 on Survey plan number 1B 1079 is still vested in the defunct Ibadan City Council being part of the land belonging to the above.
2. Following the above findings it is herby confirmed that the subject parcel of land falls under the jurisdiction of the Ibadan North Local Government being the successor-in-title to the defunct Ibadan City Council.
3. In view of the above, your request for the grant of a Certificate of Statutory Right of Occupancy on the said land is considered not necessary going by the historical records of its acquisition and ownership. More so this will amount to preparing the deed or document that will need to be charted and registered against

an existing or subsisting ownership in favour of your Local Government.
4. You are however requested to pay an administrative charge/levy in the sum of N100,000 (One Hundred Thousand Naira Only) into the Oyo State Government general revenue account number 1351144640218 Code 402/072 at WEMA BANK PLC, Secretariat, Ibadan.
5. With best regards and compliments.”
(Underlining is supplied by me).

The above letter cannot be more plain. It makes it clear that the land is still vested in the respondent; it confirms that the subject parcel of land falls within the jurisdiction of the respondent and it also confirms that the respondent is the subsisting owner of the land. In view of the unequivocal manner in which the Oyo State Government made its position on the land clear in Exhibit F, I am rather befuddled that the trial Court came to the conclusion that it was by the selfsame Exhibit F that the land became vested in the respondent. That is simply not correct. That finding is perverse. It is settled law that a fact is said to be perverse where among other instances, it is found as in this case, that it runs counter to the evidence and the

pleadings. See Mini Lodge Ltd. V. Ngel (2009) 18 NWLR part NWLR part 1173 p.254. The said finding of the learned trial judge being one that is perverse is hereby set aside. See Omokhafe v. Eselekhomo (1993) NWLR part 309 p.58.

With regard to the respondent’s contention that even if the letter of allocation was issued by the respondent, the appellant would not be entitled to a decree of specific performance because he failed to fulfill his obligation in Clause III of the Letter of Allocation, again, I have scrutinized the said Clause III and I find that it does not support that contention. In interpreting a document, the document must be read as a whole with effect being made to achieve harmony among the parts. See Mbani v. Bosi (2006) 11 NWLR part 991 p.400; A.G Kaduna State v. Hassan (1985) NWLR part 8 p.483; Bank of England v. Vagliano Bros (1981) AC 107.

Clause III of the allocation letter (Exhibit B), states:
That this allocation is subject to the consent of the Commissioner for Lands, Housing, Survey and Physical Planning and send to us six copies of the Survey Site plan of the

plot and pay within 30 days of the date of this letter a sum of N for the application to obtain the said consent and for the preparation thereafter of your deed of sublease incorporating all the usual terms and conditions.

The last clause of Exhibit B states;
Within 30 days of the date of this letter, you should pay a total sum of N87,500.00 mentioned above and signify your acceptance of this letter with the condition attaching thereto on the attached letter of acceptance, otherwise the offer lapse(sic).

A harmonious reading of Clause III of Exhibit B and the last clause of Exhibit B indicates that for the appellant to receive the consent of the Commissioner of Lands, Housing, Survey and physical planning and for the deed of sublease to be prepared, the appellant had to pay the sum of N87,500 within 30 days. Did the appellant comply with this requirement?
The answer is yes. The requirement was fulfilled when the appellant paid the sum of N87,500 on 22/11/2002 as shown in the Treasury Receipt, Exhibit ‘C’. The sum was paid well within the prescribed period of 30 days. Exhibit B is dated 7/11/2002. In the

circumstances, it cannot be contended that the appellant cannot be entitled to a decree of specific performance on account of a failure to satisfy the condition stipulated in Clause III of Exhibit ‘B’. A decree of specific performance is a decree issued by the Court which constrains a contracting party to do that which he has promised to do. See Universal Vulcanizing (Nig.) Ltd. v. I.U.T.T.C (1992) NWLR part 266 p.388. A party seeking such a decree must show that he has performed all conditions precedent to the performance of the contract or that he is ready and willing to perform all the terms which he ought to have performed. See per Wali JSC in Anaeze v. Anyaso (1993) 5 NWLR part 291 p.1. The appellant performed all the terms which he ought to have performed. Let me end my consideration of this issue by quoting Onnoghen JSC in the case of Ezenwa v. Oko (2008) NWLR part 1075 p.610 where his lordship stated as follows:
“Where there is a subsisting contract or agreement for the sale or lease of land, the Court, being also a Court of equity is always inclined to grant specific performance because the land being sold or leased may have a peculiar value or

significance to the purchaser or lessee.”
Issue 2 is resolve in the appellant’s favour.

Issue 3 as will be recalled, is whether the initiatory process was fundamentally defective. On this issue, appellants learned counsel submitted that the learned trial judge erred in law when he held that the initiatory process of the appellant was fundamentally defective. We were referred to the Writ of Summons at page 1 – 2 of the Record of Appeal. It was submitted that the Writ complied with all the requirements of law as held by the Supreme Court in the case of Omnia (Nig.) Ltd. v. Dyktrade (2007) 15 NWLR part 1058 p.576 at 615. Learned Counsel submitted that the omission of the name of the attorney on the Writ of Summons did not render the Writ incompetent under the provisions of Order 5(1) of the High Court (Civil Procedure) Rules, 2010 of Oyo State cited by the learned trial judge. It was submitted that even assuming that there was an irregularity in the Writ, the respondent did not bring any application to challenge any such irregularity as required by the Rules. We were referred to Order 5 Rule 2 (1) and (2) of the said Civil Procedure Rules.

Learned Counsel pointed out that it was the learned trial judge that raised the issue of the Writ suo motu and that he did so at the time judgment had been reserved. By doing so it was contended, the learned trial judge was making a case for the respondent. We were referred to the cases of Tinubu v. IMB Securities Plc. (2001) FWLR part 77 p.1003 at 1023: Obanta Community Bank Ltd. v. Ajayi & Ors (2002) FWLR part 92 p.1716 at 1724. It was submitted that the inclusion of the phrase “suing through his attorney Chief Segun Alli” as contained in the statement of claim but not in the writ of Summons does not make the writ fundamentally defective as held by the learned trial judge. The case of Ntia v. Jone (2007) ALL FWLR part 351 p. 1600 at 1612 was cited in support. Learned counsel submitted that a statement of claim supersedes a Writ of Summons and therefore, it is the Statement of Claim that a Court should consider in determining a case. He cited the case of Onyero v. Nwadike (2011) 12 SCM part 2 p. 406 at 415. We were urged to resolve the issue in favour of the appellant.

In his argument in reply on issue 3, Respondents Learned counsel referred

to Order 4 Rule 2 of the Oyo State High Court (Civil Procedure) Rules, 2010 which provides that where a claimant sues, or the defendant or any of several defendant is sued in a representative capacity, the originating process shall state that capacity.” It was contended that the provision of this rule is mandatory and that the failure of the appellant to comply with the rule renders the commencement of the suit null and void.
He cited Order 5 Rule 1 (1) of the said High Court (Civil Procedure) Rules. It was submitted that although the issue was raised suo motu by the learned trial judge, the learned trial judge asked learned counsel to address him on it and they did.

The Writ of Summons shows that the plaintiff is Tunji Adigun. The statement of claim however states the parties thus:
MR. Tunji Adigun ……….. Claimant
(Suing through his Attorney Chief Segun Alli)
And
Ibadan North Local Government ……Defendant.”

Thus, both in the writ of summons and in the statement of claim, the plaintiff or the claimant was named as Mr. Tunji Adigun. The statement of claim only introduced Chief Segun Alli as the Attorney

of the claimant, Tunji Adigun. It is important to emphasis that Chief Segun Alli was not suing as the Claimant. There would have been a problem if Chief segun Alli being the attorney sued in his own name but that was not the case here. In Vulcan Gases Ltd v. Gesellschaft Fur Industries (2001) 9 NWLR part 719 p.610, the Supreme Court held that the donee of a power of attorney must sue in the name of the donor. That was precisely what was done in this case, seeing that the writ of summons has the name of the claimant as Mr. Tunji Adigun. I think by raising the issue, the learned trial judge raised a most unnecessary storm, a storm that in my humble view has turned out to be a storm in a teapot
Issue 3 is resolved in the appellants favour.

The 4th and final issue is whether the learned trial judge was right to have refused the appellant to amend his Writ of Summons. In view of my conclusions on issue 3, I think the resolution of this issue will have no utilitarian value. It is academic. All the same, I will consider it for all it is worth.

It was the submission of the appellant’s learned counsel that the learned trial judge was wrong

to have dismissed the appellant’s application for leave to amend his writ of summons particularly since there was no counter-affidavit opposing the application. It was submitted that it is settled law that an amendment can be allowed at any time. The cases of Abah v. Jabusco (2008) 3 NWLR part 1075 p.526 at 545; Shell Petroleum Development Company Nig. Ltd. v. Edamleue (2009) 14 NWLR part 1160 p.1 at p.24 – 25; Adekeye v. Akin-Olugbade (1978) 3 NWLR part 60 p.214 at 223 and Odu v. Fawehinmi (2005) 15 NWLR part 949 p.578 at 602 were cited in support.

In his submission on the issue, respondent’s learned counsel contended that the learned trial judge was right to have refused the appellant’s application to amend the Writ of Summons. Having argued the case based on the merit of the Writ of Summons, the appellant, it was submitted, could not turn around to seek to amend the Same Writ of Summons after judgment had been reserved. It was submitted that a fundamentally defective Writ of Summons cannot be cured by an amendment.

In refusing to grant the amendment of the Writ of Summons, the learned trial judge relied on Order 24 Rule 1 of the Oyo State High

Court (Civil Procedure) Rules 2010 which provides:
“A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before the close of the case.”
The above rule has tampered with the erstwhile position of the law which did not put any limit to the number of times that a Court can be approached with an application to amend an originating process or pleading. By the present Civil Procedure Rules of the High Court of Oyo State which is similar to the contemporary High Court Civil Procedure Rules in other States of the Federal Republic of Nigeria, the number of times that an application for the amendment of an originating process and pleadings can be made is unlimited before the close of pre-trial conference.
However, once the pre-trial conferences stage is over, such originating process and pleading cannot be amended more than twice. Once the case is closed, an amendment is no longer permissible. At the time the claimant filed his Motion for leave to amend the writ of summons, i.e. 16/1/2014, the claimant had closed his case (his written address was dated

27/2/2013). Based on Order 24 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, the learned trial judge cannot be faulted for refusing the application to amend the Writ of Summons at that stage. This issue is resolved against the appellant.

The resolution of issue 4 against the appellant notwithstanding, for the reasons given in resolving all the other issues in favour of the appellant, the inexorable conclusion that I have reached is that the appeal has merit. The judgment of the lower Court is accordingly hereby set aside. Consequently, the appellant is entitled to his claims before the lower Court. Accordingly, I make the following consequential orders:
(1) An order of specific performance ordering the respondent to execute a Deed of Sublease of the land Block/Quarters 87, Plot 2, Agodi, GRA, Ibadan in favour of the appellant is hereby made.
(2) The Respondent whether by its agents, or assigns is restrained by an order of perpetual injunction from committing any act of trespass on the said land.
(3) One Million Naira (N1,000,000) general damages is awarded against the Respondent for its continued trespass on the said plot of

land.

HARUNA SIMON TSAMMANI. J.C.A.: My learned brother, O, Daniel-Kalio, JCA gave me the privilege of reading in advance the draft of the judgment just delivered. I am in agreement with the reasoning and conclusion arrived at by my learned brother.

I however wish to add a few words of mine. From the oral and documentary evidence adduced in this case, it is obvious that the case of the Appellant who was the Plaintiff or Claimant at the trial Court was built on Exhibits B and C. Exhibit B is the letter of allocation of the land in dispute, while Exhibit C is the Treasury Receipt evidencing payment of the deposit or fees required to be paid as condition precedent for the validity of the allocation. The Respondent however, knowing that if Exhibits B and C are proved as validly executed documents, the case of the Appellant would be proved, branded those documents as products of fraud by the Appellant (Claimant). It is obvious that, on their faces, the said Exhibits B and C are acts of public officials. The law as stipulated in Section 168(1) of the Evidence Act is that
When any judicial or official act is shown to have been done in a manner

substantially regular, it is presumed that formal requisites for its validity were complied with.

That being so, the onus was on the Respondents who challenged the validity of the said Exhibits B and C, to call evidence to rebut same. The best evidence in the circumstances would be that of the officials who are alleged by the Appellant to have made them. The burden is heavier where the challenge to the validity of the documents border on crime. It does not matter that the allegation of crime is made in a civil proceeding because, Section 135 of the Evidence Act, 2011 stipulates that:
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful acts, subject to Section 139 of this Act, on the person who asserts, whether the commission of such act is or is not directly in issue in the action.”

By the above cited provisions of the Evidence Act, therefore, the burden was on the Respondents who sought to invalidate Exhibits B and C by alleging that

they were fraudulently made or obtained, to lead evidence to establish to prove fraud beyond reasonable doubt. That burden to prove fraud or indeed any other crime rests throughout on the person who alleges. It is static and never shifts, and it does not matter that the allegation of crime is made in a civil proceeding.

In the instant case, the evidence led by the Respondents, in an effort to proof fraud, was not there. If there was, such evidence did not discharge the burden cast on them on the standard required by law. To that extent, the only logical conclusion I have arrived at is that, the Appellant, whose duty it was to prove his case on balance of probabilities, did proof his case when he tendered Exhibits B and C. The learned trial Judge therefore made perverse findings and thus reached a wrong decision when he gave judgment against him. That decision is therefore set aside.

It is for the above stated reasons and the other reasons ably enunciated by my learned brother that I agreed that this appeal is meritorious. It is accordingly allowed. I therefore set aside the judgment of the Court below delivered on the 20th day of January, 2014.

I abide by the consequential orders and reliefs granted in the lead judgment.

NONYEREM OKORONKWO, J.C.A.: I have read beforehand the judgment in this appeal just delivered by my brother Obietonbara Daniel-Kalio JCA.

Since the days of Walsh vs. Lonsdale (1882) 21 Ch.D 9, the law treats agreement for a lease as good as a Formal Lease and so whenever there is a semblance of agreement particularly where supported by some consideration or act of part performance, the law since the intervention of equity will treat such transaction as a Lease and will in appropriate case decree specific performance.

I agree that this should be the case in the circumstance of this appeal. I abide by the orders made.

Appearances

T. O. Onipede For Appellant

AND

Kehinde Olawunmi with him, Oluwaseun Kolawole For Respondent