ABIODUN JOSEPH V. FAJEMILEHIN O. O. & ANOR (2012)

ABIODUN JOSEPH V. FAJEMILEHIN O. O. & ANOR

(2012)LCN/5708(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of December, 2012

CA/EK/7/2012

RATIO

COURT: ATTITUDE OF COURT ON SWELLING ON TECHNICALITIES

The court is therefore not confused as it is enjoined to do substantial justice and move away from technicalities. See the case of Jeric v. Union Bank (2004) 4 S.C.N.Q.R. pages 254 at 264 – 265 per Kalgo, J.S.C. where he stated that:

“… This court has long moved from sticking to technicalities as opposed to determination of party’s right on merit and substantial justice.”

See also Omoju v. F.R.N (2008) 7 N.W.L.R. Part 1085 page 38 at 57 paras D – G and Adebayo v. Okon (2002) 8 N.W.L.R. Part 768 at page 1. PER MODUPE FASANMI, J.C.A.

EVIDENCE: NATURE OF DOCUMENTARY EVIDENCE

It is trite that documentary evidence is the best and extrinsic evidence cannot be admitted to contradict, add, or vary the provisions contained in a document. See: Section 128 (1) of the Evidence Act 2011. PER MODUPE FASANMI, J.C.A.

DAMAGES: HOW SHOULD SPECIAL DAMAGES BE PROVEN

It is the law that special damages must be specifically pleaded and strictly proved. A claimant is required to specifically plead the claim as well as itemized it. See A. G. Fed. v. A.I.C. (2000) 10 N.W.L.R. Part 675 at 293 and Agbo v. C.S.C.N.S. (2011) 1 N.W.L.R. Part 1229 page 544 at 550 paras D -F. PER MODUPE FASANMI, J.C.A.

EVIDENCE: EFFECT OF FAILURE OF A PARTY TO REACT TO AN ISSUE IN CONTENTION BETWEEN THE PARTIES

See the case of Ugboaja v. Akintoye – Sowemimo (2008) 16 N.W.L.R. Part 1113 page 278 at 292 para A where the Supreme Court had this to say.

“Where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceived the part/issue to his opponent.”

And also U.B.N. Plc v. Dawodu (2003) 4 N.W.L.R. Part 810 page 287 at 300c. PER MODUPE FASANMI, J.C.A.

ACTION: NATURE OF A COUNTER-CLAIM

A counter-claim is an independent action. It is a cross action which deserves attention. See the case of Zenith Int’l Bank Ltd. v. Vickdab & Sons (Nig) Ltd. (2010) 40 W.R.N. Page 165 at 176-177 lines 45-50. In the case of Wilson v. Oshin (2000) 9 N.W.L.R. part 673 pages 442 at 462 – 463 para. H, the Supreme Court stated that:

“The principle of adjudication that is fundamental to the administration of justice is that the court is bound to consider every material aspect of the party’s case validly put before it, particularly where the issue is fundamental and critical to the determination of the court.” PER MODUPE FASANMI, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

ABIODUN JOSEPH Appellant(s)

AND

FAJEMILEHIN O. O.
FAJEMILEHIN F. M. [MRS] Respondent(s)

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ado-Ekiti, Ekiti-State delivered on the 21st of June, 2011.
The appeal emanated from suits No. HAD/43/2006 and HAD/44/2006 which were consolidated at the lower court.
The 2nd Respondent who was the 1st Plaintiff at the Lower Court and her statement of claim in suit number HAD/43/2006 dated and filed the same day claimed against the Appellant as follows:
(a) A declaration that the seizure by the Defendant of the Plaintiff Mazda Car with registration no. AE 276 GED is unlawful, illegal and without any legal basis.
(b) An order directing the Defendant to release to the Plaintiff the said Mazda Car with registration no. AE 276 GED which was (sic) unlawfully seized by the Defendant.
(c) Payment of N2.5million only for general and special damages made up as follows:
Special Damages
i. N20,800.00k being money spent to and from Plaintiff’s house to her working place from 3/4/2006 -24/5/2006.
ii. N400 per day from 25/5/2006 till possession of the car is restored to the Plaintiff.
General Damages
i. N1.2 Million for unlawful seizure and detinue of the Plaintiff’s car.
ii. N829,200.00k for denying the plaintiff the use of the car.
iii. N100,000.00k for inconvenience caused to the Plaintiff which she suffered anytime she joined public transport to her place of business and any other places plaintiff wishes to go.
iv. N250,000.00k for public contempt and ridicule suffered by the plaintiff from her relations, friends and co-workers.
Grand total N2,500,000.00k.
1st Respondent was the 2nd Plaintiff at the Lower Court by a Writ of Summons in suit no. HAD/44/2006 dated and filed 24th May 2006. On 20th October 2006, the 1st Respondent filed his statement of claim with the following reliefs:
1. A declaration that the Plaintiff is only indebted to the Defendant to the sum of N20,000,00 having paid N180,000.00 out of the total sum of N200,000.00 borrowed.
2. A declaration that the interest (sic) been charged by the Defendant on the loan granted the plaintiff is illegal and void.
3. An order directing the defendant to furnish the plaintiff with an accurate account of all monies paid by the plaintiff in respect of the loan taken by the plaintiff from the Defendant.
4. An order directing the Defendant to release the original certificate of occupancy of the plaintiff landed property, situate, lying and being at Oke-Ila, Ado-Ekiti.
5. An order directing the Defendant to release the original vehicle particulars of the plaintiff Peugeot 504 car with registration number BG 471 JJJ.
6. An order of perpetual injunction restraining the Defendant from further harassing and intimidating the Plaintiff both in his place of work house or any other place.
Appellant filed a statement of defence and counter-claim in suit number HAD/43/2006 on 13th June 2007 seeking an order that the Defendant is entitled to realize the security covered by the said loan granted to one O. O. Fajemilehin husband of the plaintiff which is Mazda 626 with registration no AE 276 GED which loan the plaintiff is aware of.
The Appellant filed a statement of Defence and counter claim in suit no. HAD/44/2006 on 13th March 2007 with the following reliefs:
(u) The sum of N1,365,5000 (One million three hundred and sixty five thousand, five hundred naira) only being loan/credit facilities granted or advanced to the plaintiff by the Defendant between November 2005 to April 2006 for which plaintiff had refused, neglected and failed to pay to the Defendant despite repeated demands.
(b) Interest on the said sum of N1,365,500 (One Million, three hundred and sixty five thousand, five hundred naira) at the rate of 10% from 15th November, 2005 till the date of judgment and thereafter at the rate of 10% until the judgment debt is wholly and entirely paid, fore closed and or liquidated.
(.) An order that the Defendant is entitled to realize the properties and or the securities covered by the said loan or credit facilities granted to the plaintiff by the Defendant at Plaintiff’s request, to wit;
(i) Plaintiff’s Peugeot 504 GL Saloon Car with Registration no. BG 471 JJJ.
(ii) Plaintiff’s Mazda 626 car with registration no. AE 276 GED, engine no. Fe 54454 D and chassis no. JMZGD 14C 201111884.
(iii) Plaintiff’s original Certificate of Occupancy of a plot of land lying and situate at Ekiti State Housing Corporation Ado- Ekiti.
The Lower Court granted an order of consolidation of suits nos. HAD/43/2006 and HAD/44/2006 on the application of the Appellant dated 13th June, 2007. Pleadings were entered and duly exchanged by the parties. The case was tried and judgment was delivered against the Appellant on the 21st of June 2011. Dissatisfied with the judgment Appellant appealed to this court.
The Appellant’s brief of argument was filed on the 7th August 2012 and the Reply brief was filed on 20th of September 2012. The Respondent’s brief of argument dated 31st August 2012 was filed on the 6th September 2012 but deemed properly filed on the 5th of November, 2012.
At the hearing, learned counsel for the Appellant Mr. Taiwo Ogunmoroti submits that the Appellant adopts and relies on both briefs. He urged the court to uphold the submissions and argument contained therein and to allow the appeal.
Learned Counsel Mrs. Bolanle Ojo held the brief of Mr. E. K. Omosebi for the Respondent. She adopts and relies on the submissions and argument contained therein. She urged the court to dismiss the appeal as lacking in merit.
Appellant distilled four issues in suit no. HAD/43/2006 and they are adumbrated as follows:
(a) Whether the Respondent in HAD/43/2006 is the owner of Mazda 626 placing reliance on exhibits A – A3 respectively in view of the signature of her husband the Respondent in HAD/ 44/2006 and whether a court can suo motu make case for a party on the circumstances of a signature for which no evidence was adduced at the trial. Ground 1 & 2.
(b) Whether the seizure of the Respondent’s vehicle by the Appellant is not lawful Ground 3.
(c) Whether it is not wrong to award the sum of N20,800 (Twenty thousand and Eight Hundred Naira) only to the Respondent as special damages when such was not proved Ground 4.
(d) Whether the failure of the learned trial judge to make a finding on the counter- claim did not occasion a miscarriage of justice. Ground 5.
In HAD/44/2006, the Appellant distilled two issues for determination as follows:
(e) Whether the Appellant is a money lender at the relevant period of the transaction between him and
the Respondent.
(f) Whether the failure of the learned trial judge to make a finding on the counter-claim of the Appellant did not occasion a miscarriage of justice.
The Respondents adopt the issues as formulated by the Appellant.
It is clear from these six issues formulated by the parties for determination in this appeal that issues (a) (b) (c) (d) & (f) stand out for the determination of the appeal. Issue (e) can conveniently collapse into issue (f). The court will adopt these issues for the determination of this appeal.
They are as follows:
(a) Whether the Respondent in HAD/43/2006 is the owner of Mazda 626 placing reliance on exhibits A – A3 respectively in view of the signature of her husband the Respondent in HAD/44/2006 and whether a court can suo motu make case for a party on the circumstances of a signature for which no evidence was adduced at the trial. Grounds 1 & 2.
(b) Whether the seizure of the Respondent’s vehicle by the Appellant is not lawful.
(c) Whether it is not wrong to award the sum of N20,800 (Twenty thousand and Eight Hundred Naira) only to the Respondent as special damages when such was not proved Ground 4.
(d) Whether the failure of the learned trial judge to make a finding on the counter-claim did not occasion a miscarriage of justice Ground 5.
(f) Whether the failure of the learned trial judge to make a finding on the counter claim of the Appellant did not occasion a miscarriage of justice.
These issues will thereafter be referred to as issues 1,2,3,4 and 5 respectively.
Issue One
Whether the Respondent in HAD/43/2006 is the owner of Mazda 626 placing reliance on exhibits A – A3 respectively in view of the signature of her husband the Respondent in HAD/44/2006 and whether a court can suo motu make case for a party on the circumstances of a signature for which no evidence was adduced at the trial. Grounds 1 & 2.
On the first issue for determination learned counsel for the Appellant submitted that the name on exhibits A – A3 is S. M. Fajemilehin whereas the writ of summons and statement of claim and all processes bear the name Mrs. F. M. Fajemilehin.
He submitted that there is great confusion here as to the ownership of the car since it was the husband who brought the car and asserted ownership only for the wife to show up later to lay claim to the ownership, the husband having mortgaged the car and having failed to pay his indebtedness to the Appellant.
He argued further that the Respondent’s husband O. O. Fajemilehin also signed the owner’s column on exhibits A – A3 i.e. the particulars of the Mazda car. This act also confers ownership on the husband who earlier mortgaged the said car as security for the loan he obtained from the Appellant. He submitted that once the signatures are not that of the 2nd Respondent, she cannot legally claim to be the complete owner of the Mazda car seized by the Appellant which car is the subject of security for the loan obtained by the Respondent’s husband in HAD/44/2006. Learned counsel referred to the case of Adefarasin V. Dyekh (2007) 11 N.W.L.R. Part 1044 Page 89 at 113 – 114 paragraphs G – D where the court stated as follows:
“A person’s signature, written names or mark on a document act under seal, signified an authentication of that document that such a person holds himself as bound or responsible for the contents of such a document”
Learned counsel for the Appellant maintained that the signature of the Respondent’s husband on exhibit ‘A’ series at the owner’s column, shows the Respondent’s husband was also the owner of the said car or can lay claim to same. He submitted that the learned trial Judge made case for the Respondent when there is nothing on the records that it was the Respondent’s husband that undertook the journey to purchase the said car for the Respondent and neither was the circumstances of the signature of the Respondent’s husband disclosed in evidence. He submitted further that the learned trial judge speculated on the above facts and holding since such facts are not on the record. It is not the business of a court of law to speculate or manufacture evidence on behalf of a party. Reliance was placed on the cases of F. M. F. Ltd., v. Ekpo (2004) 2 N.W.L.R. Part 856 page 100 at120 para F where the court held as follows:
“A court of law has no business to act on a guess work or mere speculation, A court of law acts only on concrete evidence established before it” and also Abdullahi v. Milad (2004) 5 N.W.L.R. Part 856 page 232 at 245 – 247 paras. H – A.
Learned Counsel for the Appellant urged the court to allow the appeal and dismiss the case of the Respondent.
Learned Counsel for the Respondent in reply submitted that at page 106 of the record lines 20-22, the Respondent testified thus:
“My car is Mazda 626 saloon car with registration AE 276 GED. I have receipts for the purchase of the car and affidavit of ownership to prove that the car belongs to me”
He contended that the particulars of the vehicle and sworn affidavit of ownership in the name of the Respondent were all admitted without objection at the trial court as exhibits A – A3.
The evidence of the Respondent and her answers to cross examination from Appellant’s counsel runs through pages 106 – 107 and there was never a place where the Respondent said that her husband signed any of the exhibits and she did not call any witness. He argued that the trial court was therefore right in holding that the Mazda car belongs to the 2nd Respondent.
Submitted that the Appellant’s argument amounted to technicalities at the expense of doing substantial justice and the courts have moved away from technicalities to doing substantial justice. He referred to the case of Jeric v. Union Bank (2004) 4 S.C.N.Q.R. page 254 at 264 – 265 where Kalgo J.S.C. has thus to say.
“… This court has since moved away from sticking to technicalities as opposed to the determination of parties rights on merits and substantial justice.”
On the issue of whether the Respondent is S. M. Fajemilehin or F. M. Fajemilehin, learned counsel submits that it is a technical issue which does not go to the root of the case. He contended that from the evidence of the Appellant himself he knows that the Mazda car does not belong to the 2nd Respondent. Submitted that at page 110 – 111 of the record under cross-examination Appellant admitted at page 111 lines 9-10 that “If anyone brought a vehicle to me for sale as a vehicle dealer, I will ask to see the particulars of the said vehicle to establish he is the owner.”
Appellant stated that it was in lawyer Omotoso’s office that he first met Mrs. Fajemilehin. The trial court was therefore right to hold that the Respondent is not a privy to the contract and that the seizure of the Mazda car was unlawful. He argued further that since the counter claim relied heavily on the 2nd Respondent’s case, the counter claim has no leg to stand.
Submitted that the learned trial judge was right in dismissing it.
In the alternative, learned counsel for the Respondent urged the court to look at the evidence on record and make an objective finding of the counter claim. He cited the case of Golday Ltd. v. Coop Dev Bank (2003) 13 N.S.C.Q.R. Page 542 at 557 where the Supreme Court had this to say:
“The law however permits and indeed expects a Court of Appeal in appropriate circumstances to look at the evidence on record and make an objective finding of fact in place of a perverse finding made by the trial court.”
From the evidence of parties on record, 2nd Respondent at page 106 of the record testified as follows:
“I know the defendant for the first time when he seized my car from my husband. My car is Mazda 626 Saloon car with registration AE 276 GED. I have the receipts for the purchase of the car and affidavit of ownership to prove that the car belongs to me.
Owoseni: I seek to tender documents.
Court – Any objection?
Kolawole – No objection,
Court -Motor vehicle duty certificate no. A 0032046; Grass Root Ventures Receipts nos.00034 and 00392; and Affidavit of Ownership dated 31/01/2005 admitted in bundle as Exhibits A – A3 respectively.”
Appellant did not object to the documents. They are deemed admitted and need no further proof, See Ajuwon v. Akanni (1993) 9 N.W.L.R Part 316 at 182 and Adeye v. Adesanya (2001) 6 N.W.L.R. and Part 708 at page 1.
The particulars of the vehicle and sworn affidavit of ownership in the name of the Respondent were all admitted without objection by the trial court as exhibits A – A3.”
There was never a place where the Respondent said her husband signed any of the exhibits. I am unable to find the 1st Respondent’s signature on exhibits A-A3.
It is therefore not correct to say that the 1st Respondent signed the owner’s column on exhibits A – A3. I am unable to agree with the learned counsel for the Appellant’s submission on this point. I am of the view and also hold that going through exhibits A – A3 i.e. the particulars of the Mazda Car and the evidence of the 2nd Respondent, there is no evidence on record to show joint ownership of the Mazda car between the Respondents as submitted by the learned counsel for Appellant.
The ownership of the Mazda car is solely in the 2nd Respondent Mrs. S. M. Fajemilehin. There is no signature of the 1st Respondent i.e. O. O. Fajemilehin on the vehicle particulars tendered in court.
The issue of whether 2nd Respondent is Mrs. S. M. or Mrs. F. M. Fajemilehin is technical as rightly submitted by learned counsel for the Respondent. 2nd Respondent stated her name in court at the trial. The court is therefore not confused as it is enjoined to do substantial justice and move away from technicalities. See the case of Jeric v. Union Bank (2004) 4 S.C.N.Q.R. pages 254 at 264 – 265 per Kalgo, J.S.C. where he stated that:
“… This court has long moved from sticking to technicalities as opposed to determination of party’s right on merit and substantial justice.”
See also Omoju v. F.R.N (2008) 7 N.W.L.R. Part 1085 page 38 at 57 paras D – G and Adebayo v. Okon (2002) 8 N.W.L.R. Part 768 at page 1.
The particulars of the Mazda car show that the 2nd Respondent is the owner of the Mazda car No AE 276 GED.
Ownership of the vehicle is therefore in favour of the 2nd respondent. Issue one is hereby resolved against the Appellant.
Issue Two
Whether the seizure of the Respondent’s vehicle by the Appellant is not lawful.
Learned Counsel for the Appellant submitted that Appellant in his evidence stated that the Mazda car was used as collateral in the agreement. 1st Respondent i.e. Mr. O. O. Fajemilehin signed with him. The 1st Respondent told him he was the owner of the Mazda car. He submitted that there is a binding contract between the Appellant and the 2nd Respondent’s husband which contract also binds the 2nd Respondent as privy in law. Submitted further that assuming the 2nd Respondent’s husband illegally entered into the agreement that culminated in the Mazda car’s journey into being used as security, though not conceding, a party cannot rely on his illegality to nullify a contract entered into with another party. Reliance was placed on the case of Kwajaffa v. D.O.N. Ltd. (2004) 13 N.W.L.R. Part 889 page 146 at 177 paras F – H. Learned Counsel urged the court to resolve issue two in favour of the Appellant.
Learned counsel for the Respondent submitted that 2nd Respondent is not a privy to the contract and that the seizure of the Mazda car is unlawful. He argued further that the Appellant was trying to deceive the court by saying that the car belonged to the 1st Respondent i.e. Mr. O. O. Fajemilehin. Appellant never mentioned that 2nd Respondent played any part in the transaction. He urged the court not to grant the counter-claim of the Appellant as 2nd Respondent is not a privy to the contract. Learned Counsel for the Respondent urged the court to resolve issue two in favour of the Respondent.
From the available evidence on record, 1st Respondent used the vehicle as collateral in the agreement he signed with the Appellant in exhibit E2 on the 1st of April 2006 at page 23 of the record.
1st Respondent in para 3 of the reply to the Defendant’s Statement of Defence and Defence to counter-claim avers as follows:
“The plaintiff in denying paragraphs 3-6 of the statement of Defence avers that plaintiff paid various money that was never allowed to be evidenced in writing and that Defendant took the vehicle and the land of the plaintiff as final payment and when the Defendant still wants more money this action was taken.”
The averment in paragraph 3 of the reply to the Defendant’s statement of Defence and Defence to counter claim cannot be used to vary the contents of a written document which is exhibit E2. It is trite that documentary evidence is the best and extrinsic evidence cannot be admitted to contradict, add, or vary the provisions contained in a document. See: Section 128 (1) of the Evidence Act 2011. I hold that the 1st Respondent used the Mazda car as collateral for the debt he owed the Appellant.
Exhibit E2 suggests that the 1st Respondent voluntarily surrendered the car to the Appellant as a pledge or security for his indebtedness to the Appellant.
Since 1st Respondent pledged or used the Mazda car as security to offset the loan he took from the Appellant, I hold that there was no seizure of the 2nd Respondents vehicle. Issue two is hereby resolved in favour of the Appellant.
Issue Three
Whether it is not wrong to award the sum of N20,800 (Twenty thousand eight hundred naira) only to the Respondent as special damages when such was not proved.
Learned Counsel for the Appellant submitted that the 2nd Respondent has failed and refused to prove her item of special damages strictly. Appellant in his statement of Defence and Counter claim dated and filed on 13th June 2007, which is on additional record of appeal before this court is to the effect that the Respondent lives very close to her school and does not take public transport or any transport at all to the school. Submitted that this constitutes an admission in Law, the 2nd Respondent having failed to react to it.
Learned Counsel for the Appellant submitted that there is no basis for the award of the sum of N20,800 to the Respondent since there is no evidence on record to ascertain and back up such claim. Learned Counsel urged the court to resolve this issue in favour of the Appellant.
Learned Counsel for the Respondent submitted that at page 107 lines 2-3 of the record, the 2nd Respondent stated:
“I have been spending an average of N200.00 per day to go to my workplace alone”.
Submitted that the above evidence is what the 2nd Respondent was claiming in paragraph 8A of her Statement of Claim and so it could not be said that there was no evidence to back the claim. He referred to Nika Fishing Ltd. v. Lavina (2008) 16 N.W.L.R Part 1114 page 509 at 536 where the Supreme Court opined that:
“…Courts of law can only decide issues in controversy between parties on the basis of evidence before
them.”
Submitted that since the Respondent pleaded the issue of the N200 in her claim with supporting evidence on record, Learned Counsel for the Respondent urged the court to resolve issue three in favour of the 2nd Respondent.
It is the law that special damages must be specifically pleaded and strictly proved. A claimant is required to specifically plead the claim as well as itemized it. See A. G. Fed. v. A.I.C. (2000) 10 N.W.L.R. Part 675 at 293 and Agbo v. C.S.C.N.S. (2011) 1 N.W.L.R. Part 1229 page 544 at 550 paras D -F.

2nd Respondent failed to react to the Appellant’s averment that 2nd Respondent lives very close to her school and does not take public transport to her school. This is fatal to the 2nd Respondent’s case as it is deemed an admission in law as rightly submitted by the learned counsel to the Appellant.
See the case of Ugboaja v. Akintoye – Sowemimo (2008) 16 N.W.L.R. Part 1113 page 278 at 292 para A where the Supreme Court had this to say.
“Where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceived the part/issue to his opponent.”
And also U.B.N. Plc v. Dawodu (2003) 4 N.W.L.R. Part 810 page 287 at 300c.
Since the unlawful seizure is unfounded, the issue of special damages has not been proved and the entire suit of the 2nd Respondent fails. Accordingly suit No HAD/43/2006 is hereby dismissed. The judgment entered for the 2nd Respondent in suit no HAD/43/2006 is hereby set aside and in its place, an order of dismissal of the suit for lack of merit is hereby entered. Issue three is hereby resolved in favour of the Appellant.
Issue 4
Whether the failure of the learned trial judge to make a finding on the counter-claim did not occasion a miscarriage of justice.
Learned Counsel for the Appellant submitted that the learned trial judge did not make a finding on the Appellant’s counter-claim and gave no reason for so doing. He submitted further that the pronouncement of the learned trial judge on the counter-claim of the Appellant is on page 15 of the judgment as follows:
“The defendants counter claim is unmeritorious and dismissed accordingly”
Submitted that this is wrong and fatal to the case. He referred to the cases of A.G. Leventis (Nig) Plc v. Akpan (2007) 17 N.W.L.R. Part 1063 page 416 at 447 paras B – C and Akpaji v. Udemba (2003) 6 N.W.L.R. part 815 page 169 at 183 paras. A – B. Learned Counsel for the Appellant urged the court to resolve this issue in favour of the Appellant and set aside the judgment of the lower court.
Learned Counsel for the Respondent in reply submitted that looking at the counter-claim and evidence adduced, the court will see that the counter-claim cannot be granted as the counter-claim has no leg to stand on and the learned trial judge was right in dismissing it. In the alternative he urged the court to look at the evidence on record and make an objective finding of fact in this issue of the counter-claim. A counter-claim is an independent action. It is a cross action which deserves attention. See the case of Zenith Int’l Bank Ltd. v. Vickdab & Sons (Nig) Ltd. (2010) 40 W.R.N. Page 165 at 176-177 lines 45-50. In the case of Wilson v. Oshin (2000) 9 N.W.L.R. part 673 pages 442 at 462 – 463 para. H, the Supreme Court stated that:
“The principle of adjudication that is fundamental to the administration of justice is that the court is bound to consider every material aspect of the party’s case validly put before it, particularly where the issue is fundamental and critical to the determination of the court.”
In the instant case, I am unable to find on the record where the learned trial judge considered the counter-claim before making his pronouncement. Section 15 of the Court of Appeal Act 2004 permits and indeed expects a Court of Appeal in appropriate circumstances to look at the evidence on record and make an objective finding of fact. I shall invoke the section in the circumstances of this case to consider the counter-claim of the Appellant as regards HAD/43/2006.
Appellant’s counter-claim against the 2nd Respondent is for:
An order that the defendant is entitled to realize the security covered by the said loan granted to one O. O. Fajemilehin, husband of the Plaintiff which is Mazda 626 with registration no. AE 276 GED which loan the plaintiff is aware of.
The submissions of the learned counsel to the parties on this issue have been stated at the early part of this judgment. I will not go over this again to avoid repetition.
In considering the evidence on the record, these are my findings, 2nd Respondent did not file any reply to the Counter-Claim of the Appellant. She admitted that the 1st Respondent is still owing the Appellant the sum of N20,000.00. Where a Plaintiff fails to file a defence or reply to a counter claim, he is deemed to admit the counter claim. See Akpaji v. Udemba (2003) 6 N.W.L.R. Part 815 page 169 at 183 paras A-B.

The fundamental principle of adjudication is that the court is bound to consider every material aspect of the party’s case validly put before it. See Wilson v. Oshin (2000) 9 N.W.L.R. Part 673 page 442 at 462.

A court must give reason or reasons for any finding of fact or holding. see A. G. Leventis (Nig) Plc v. Akpan (2007) 17 N.W.L.R. Part 1063 page 416 at 447. The learned trial judge erred to have dismissed the counter claim without giving it adequate consideration. Consequently the order dismissing the counter claim is hereby set aside. Since 2nd Respondent did not file a reply to the counter claim of the Appellant, it is deemed admitted in law. Consequently, I hereby allow the counterclaim and make the order as claimed. Issue four is hereby resolved in favour of the Appellant.
ISSUE 5
Suit No. HAD/44/2006
Whether the failure of the learned trial judge to make a finding on the counter-claim of the Appellant did not occasion a miscarriage of justice.
Learned Counsel for the Appellant submitted that the learned trial judge ought to have at least granted relief C (i) and (iii) or at least pronounce thereupon and give or profer reasons thereat. Rather the learned trial judge at page 22 of his judgment held without more as follows:
“The counter-claim by the defendant is unmeritorious and dismissed accordingly.”
A dismissal ought to have attracted a reason and not willy nilly in the style and manner of the learned trial judge. He urged the court to grant the Appellant’s counter-claim and allow the appeal.
Learned Counsel for the Respondent submitted that the counter-claim has no leg to stand and that the learned trial court was right in dismissing it. In the alternative, he urged the court to evaluate the evidence on record and make an objective finding on the counter-claim.
Appellant in paragraphs 11-14 of his statement of Defence and counter claim pleaded the loan taken by the 1st Respondent from him as follows:
(i) Loan of N150,000.00 advanced to the 1st Respondent on 15/11/2005.
(ii) Loan of N231,500.00 on 5/12/2005 out of which Respondent paid back N20,000.00.
(iii) Loan of N337000.00 by the 1st Respondent on 1/3/2006.
(iv) Loan of N817,000.00 1/4/2006.
The total indebtedness of the 1st Respondent to the Appellant as pleaded is N1,515,500.00. He however restricted his claim to the lesser sum of N1,365,500.00 in paragraph 18 of the counter claim. Parties are bound by their pleadings. See the case of Odin v. Akpechi (2000) 5 N.W.L.R. Part 656 page 225 at 240 paras F – G.

It is the law that where a party proves his claim to a larger sum than the sum pleaded, he will only be entitled to the lesser sum claimed and proved. Appellant ought to have been awarded the sum claimed in paragraph 18 of his counter claim.
1st Respondent did not plead that the Appellant was a money lender. 1st Respondent having failed to plead the issue of money lender, he is deemed to have waived it. See the case of Buraimoh v. Bamgbose (1989) 3 N.W.L.R. Part 109 page 352 at 365 paras C-E.
Order 15 Rules 6 and 7 of the Ekiti State High Court (Civil Procedure) Rules 2011 provides:
15 (6)
“Each party shall specify distinctly in his pleadings any condition precedent the performance or occurrence of which is intended to be contested”.
15 (7) (1) ” All grounds of defence or reply which makes an action not maintainable or if not raised will take the opposite party by surprise or will raise issue of facts not arising out of the preceding pleadings shall be specifically pleaded,”
15 (7) (2)”Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, limitation law, release, payment performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.”
The Supreme Court has also opined in the case of Fasade v. Babalola (2003) 11 N.W.L.R. Part 830 page 26 at 47 pans E-F as follows:
“It has long been settled in the High Court or indeed in any court where pleadings are filed, that where it is intended to rely on a condition precedent this that condition precedent must be pleaded”.
The finding of the learned trial judge that the Appellant is money lender is therefore speculative. A court of law has no business to act on a guess work or mere speculation. A court of law acts only on concrete evidence established before it. See the cases of Archibong v. Ita (2004) 2 N.W.L.R. Part 858 page 590 at 610-620 H-A and N.B.C. v. Ubani (2009) 3 N.W.L.R. Part 1129 page 512 at 544 paras A-C.
From the pleadings and evidence on record the counter claim in suit no. HAD/44/2006 in the sum of N1,365,5000.00 in my view has been proved and I hereby award the sum of N1,365,000.00 to the Appellant against the 1st Respondent. The judgment of the Lower Court delivered on the 21st of June 2011, dismissing the counter claim is hereby set aside.
Finally the appeal in both suits i.e. no. HAD/43/2006 and HAD/M/2006 succeeds and it is hereby allowed. The sum of N30,000.00 is hereby awarded against the 1st and 2nd Respondent’s respectively.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the Lead Judgment of My Lord, MODUPE FASANMI, J.C.A, just delivered.
My Lord has dealt with the issues in this appeal in a very lucid form. I agree with My Lord’s reasoning and conclusion.
The appeal in Suit Nos: HAD/43/2006 and HAD/44/2006 is meritorious, and it is also allowed by me.
I abide by the consequential orders made in the lead judgment.

EJEMBI EKO, J.C.A.: I read in draft the judgment just delivered by my learned brother, MODUPE FASANMI, JCA. The analyses of and conclusions on all the issues represent my views in the appeal. Though I concur I hereby add a few comments of mine to the lucid judgment.
The fulcrum of the 2nd Respondent’s Suit No HAD/43/2006, is the alleged unlawful seizure of her vehicle No. AE 276 GED. In this appeal the ownership of that vehicle is an issue. Who owns that car?
The Appellant in the effort to convince us that the car belongs to the 1st Respondent, and not the 2nd Respondent, had strenuously argued that purchase receipts, Exhibits A 43, bear S.M. Fajemilehin, and not F.M Fajemilehin (the name of 2nd Respondent). The submission is quite misleading in view of Exhibits A – A3, which the parties are ad idem about. They are the purchase receipts for this car. Having, myself perused the said Exhibits the fact that the car was purchased in the name of F.M. Fajemilehin, the 2nd Respondent, is not in doubt. Apropos, it is my considered view, and I so hold, that the 2nd Respondent is the owner of the Mazda car No AE 276 GED.
The next issue is whether the unlawful seizure of the said Mazda 626 car No. AE 27 6 GED was proved. The claims of 2nd Respondent at page 4 of the Record for damages are founded on the alleged unlawful seizure or impounding of this car by the Appellant. Exhibit E2 suggests that the 1st Respondent voluntarily surrendered this car to the Appellant as a pledge or security for this indebtedness to the Appellant. The 2nd Respondent on oath, under cross-examination at page 91 of Record, affirmed the indebtedness of the 1st Respondent to the Appellant and that the 1st Respondent is her next-of-kin. The incontrovertible facts of this case do not suggest that the Appellant unlawfully seized or impounded the vehicle from the 1st Respondent. Rather, they suggest that the 1st Respondent voluntarily deposited the said vehicle No AE 27 6 GED as a pledge or security for repayment of the loan he had taken from the Appellant. With this finding, it follows, therefore, that the claims for damages made by the 2nd Respondent in paragraph 9 (c) at page 4 will naturally collapse. The said claims in paragraph 9 (c) in the statement of claim, endorsed on the writ of Summons, are hereby dismissed as I resolve this issue in favour of the Appellant against the 2nd Respondent, this plaintiff in Suit No HAD/43/2006.
The next question is: Whether the 2nd Respondent is entitled to her reliefs in paragraphs 9(a) and (b) of the statement of claim (page 4 of the Record) since she has not established the unlawful seizure of the car No AE 276 GED? She admitted at page 91 of the Record that the 1st Respondent, her husband was his next-of-kin and that he was still indebted to the Appellant. A “next-of-kin”, by definition, is the person declared to be the nearest of kindred to the declarant, in this case the 2nd Respondent See Black’s Law Dictionary and Chambers 20th Century English Dictionary. For the purpose of this car, Mazda No AE 27 6 GED, the 2nd Respondent is the person to succeed her in the ownership in case she dies intestate. I think the 2nd Respondent has vested some interest in the car in the 1st Respondent who she admits is her next-of-kin.
This fact convinces me beyond doubt that either as husband or next-of-kin or both, the 1st Respondent has some interest in the car. To hold otherwise will give these couple a leeway to use legal niceties of “nemo quod dat non habet” to commit fraud, which I think is latent in the manner the Respondents had gone about their suits in this appeal. Equity follows the law, and it acts in personam. Accordingly, where it is unconscionable the rules of equity will be invoked to prevent fraud by spouses in marriage against third parties, like the instant Appellant.From the facts of this case, is it not reasonable on the part of the Appellant to presume that the 1st Respondent had the authority of his wife, the 2nd Respondent to pledge her car as security for his loan? The Appellant stands in a position of a purchaser for value without notice.
In any case, the only basis the 2nd Respondent, in relief 9 (b) at page 4, seeks an “order directing the (Appellant) to release to (her) the said Mazda 626 car with registration No. AE 276 GED “is the alleged “unlawful seizure” of the same by the Appellant from the 1st Respondent. If the alleged unlawful seizure is unfounded, and I so hold, then the entire suit of the 2nd Respondent will crumble naturally. Accordingly, the entire suit of 2nd Respondent, No. HAD/43/2006, deserves to be and is hereby dismissed. The learned trial judge was in error to have ruled in favour of the 2nd Respondent. The judgment entered for 2nd Respondent on Suit No. HAD/43/2006 is hereby set aside, and its place an Order of dismissal.
In Suit HAD/43/2006 the Appellant at page 3 of the Additional Record in the counter claim seeks and Order entitling him “to realize the security covered by the said loan granted to one O.O. Fajemilehin, which is Mazda 626 with registration No. AE 276 GED”. Both Respondents, on oath, at pages 91, 92 and 93 admit that “the loan has not been fully repaid as the sum of N20,000.00 is still outstanding”
The learned trial judge gave the counter claim no attention or consideration other than glibly or tersely stating that the “counter claim is unmeritorious and dismissed accordingly”. The fundamental principle of adjudication is that the court is bound to consider every material aspect of the party’s case validly put before it. See WILSON V. OSHIN (2000) 9 NWLR (PT.673) 442 at 46203; F.C.E. PANKSHIN V. PUSMUT (2008) 12 NWLR (PT.1101) 405 at.420.
The discretion, exercised by the court being judicial, must be exercised judicially and judiciously by considering the evidential materials before it, before dismissing any case, including counter-claim, or any aspect of it brought before it. It must give reason(s) for any finding of fact or holding.
See A.G. LEVENTIS (NIG) PLC V. AKPAN (2007) 17 NWLR (PT. 1063) 416 at 447. The learned trial judge erred to have dismissed the counter-claim without giving it adequate consideration it deserves that is a complete abdication of his judicial responsibility.
Apart from not filing any reply to the counter-claim the 2nd Respondent admitted that the 1st Respondent was still owing the Appellant the sum of N20,000.00. Where a plaintiff fails or neglects to file a defence or reply to a counter-claim, he is deemed to admit the counter-claim. See AKPAJI V. UDEMBA (2003) 6 NWLR (PT. 815) 169 at 183. On this rule of law, I agree with the Appellant that the learned trial judge was wrong not to have awarded the judgment in the counter-claim to the Appellant.
The order dismissing the counter-claim is hereby set aside in its place, I hereby allow the counter-claim and make the order as claimed.
SUIT No HAD/44/2006
Appellant formulated two issues in respect of this suit, and they are:
1. Whether the Appellant is a money lender at the relevant period of the transaction between him and the 1st Respondent.
2. Whether the failure of the learned judge to make a finding on the counter-claim of the Appellant did not occasion a miscarriage of justice?
In the counter-claim the Appellant specifically pleaded the following transactions in paragraphs 11 – 14 thereof. That is:
i. Loan of N150,000.00 advanced to the 1st Respondent on 15/11/2005.
ii. Loan of N231,500.00 on 5/12/2005 out of which 1st Respondent paid back N20,000.00 learning N211,500.00 outstanding.
iii. Loan of N337,000.00 taken by 1st Respondent on 1/3/2006
iv. Loan of N817,000.00 on 1/4/2006 totaling N1,515,500.00.
The total indebtedness of 1st Respondent claimed in the counter-claim is N1,365,500.00. The Reply to statement of Defence and Defence to counterclaim did not specifically join issues on the four transactions. Rather, in paragraphs 5, 6 and 7 of the Reply to the Defendant’s statement of Defence, which was later incorporated into the Defence to the counter-claim, the 1st Respondent averred:-
1. The plaintiff will contend at the trial that the defendant worked out interest on the loan with some at 50% interest and some at 75% interest.
2. The plaintiff will also proof (sic) at the trial the various ways used by the plaintiff to forge some documents including adding/fixing dates, figures and signatures [The 1st Respondent is ” the plaintiff’]
3. The plaintiff will contend and explain at the trial of this case how the defendant worked out interest on the loans at 50% and 75% at defendant’s claims and caprices
I cannot, from his pleadings, see where the 1st Respondent pleaded that the Appellant, in the transactions, operated as an illegal money-lender. I concede that he pleaded usurious interests variously at 50% and 75% on the loans. The Appellant is however not claiming interests or any interest on the four (4) loan transactions. It is nowhere pleaded by the parties that interest was either rolled over or capitalized. It will be perverse to read that into the transaction.
The evidence of the 1st Respondent on the four transactions pleaded in paragraphs 11 – 14 of the counter-claim is at page 94 of the Record, to wit:
On 15/17/2005, Mr. Fajemilehin borrow the sum of N150,000.00 from me, on 17/12/2005 he also borrowed N231,000,00; on 01/04/06 N817,000,00 from me, then on 03/03/06 he took N337,000.00 from me.
The Appellant in the counter-claim admitted that N20,000.00 was repaid out of the N231,000.00. the 1st Respondent borrowed. The total indebtedness of the 1st Respondent to the Appellant as pleaded, is N1,515,500.00. The Appellant however restricted his claim to the lesser sum of N1,365,500.00 in paragraph 18 of the counter-claim. As parties are bound by their pleadings, the sum in dispute in the counter-claim is N1,365,500.00.
Even where a party proves his claim to a larger sum than the sum pleaded, he will only be entitled to that lesser sum claimed. Estoppel by conduct (S.169 of the Evidence Act) is at the heart of this rule. Depending on the circumstances, a claimant gets only what he has pleaded and proved.
The evidence of the Appellant at page 94 of the Record was not discredited by the cross-examination at page 95. The evidence is credible and reliable.
I have not seen from the printed Record on what pleadings and evidence the learned trial judge had adjudged the Appellant to be a money lender:
Within the meaning and intendment of the provisions of the applicable Money Lenders Law of Ondo State as applicable in Ekiti State. From my finding in this matter, I have no iota of doubt that the defendant [i.e the Appellant] was at the relevant period a money Lender and therefore in full cold embrace of the Money Lender Law; in order to justify his conclusion that the defendant’s “money lending activities are unlawful, illegal and unenforceable in the court of Law”. The findings and the conclusion thereon are perverse and speculative. Speculation is no business of a judicial officer in any adjudication. See ACB PLC V. EMOSTRADE LT (2002) 8 NWLR (Pt.770) 501 at page 517 D – E.
If the 1st Respondent had intended to raise as a defence the illegality of his transactions with the Appellant on the basis of the provisions of the Money Lenders Law to bar the enforcement of the transactions against him, then he must have to plead that defence specifically by dint of Order 25 Rule 6 (1) of the extant High Court (civil procedure) Rules of Ondo State, applicable to the High Court of Ekiti State, which provided:
6 (1) A party shall plead specifically any matter (for example, performance, release, any relevant statute or limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite by surprise
It is not right in adversarial jurisprudence for the judge to suo motu take in the case, beyond the contemplation of parties, an issue and decide the claim on it. That role offends the fair hearing component of Section 36 (1) of the 1999 constitution, as amended. That is exactly what the learned trial judge did in the instant case. The pleadings exchanged and the evidence on the balance of probability justify the judgment in favour of the Appellant in the counterclaim in suit No. HAD/44/2006. The learned trial judge erred in law in not allowing the counter-claim of the Appellant. Accordingly, the sum of N1,365,500.00 shall be and is hereby awarded to the Appellant in his counterclaim against the 1st Respondent. That shall be the Order of the trial court in the suit No. HAD/44/2006. The order dismissing the counter-claim is hereby set aside.
The appeal, in respect of both Suits Nos. HAD/43/2006 and HAD/44/2006 is allowed. Costs at N30,000.00 is awarded against each Respondent.