AFOLABI v. UDO & ANOR
(2022)LCN/16072(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, May 23, 2022
CA/A/427/2017
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
MRS. GRACE AFOLABI APPELANT(S)
And
1. MRS. JESSYCA UDO 2. HON. MINISTER OF FEDERAL CAPITAL TERRITORY RESPONDENT(S)
RATIO
WHETHER OR NOT A SUBSIDIARY LEGISLATION OR INSTRUMENT MUST BE PLEADED OR TENDERED IN COURT BEFORE THE COURT CAN TAKE NOTICE OF IT
This is the law that regulates sale of Federal Government Houses in the Federal Capital Territory. The law is that a subsidiary legislation or instrument as the above codified or gazette guidelines need not be pleaded or tendered in Court before the Court can take notice of it. Counsel relied on the cases of Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353 at 374; B.O.N Ltd v. Babatunde (2002) 7 NWLR (Pt. 766) 389 at 413; Aboseldehyde Lab Plc v. U.M.B Ltd (2013) 13 NWLR (Pt. 1370) 91 at 132; Ude v. Nwara (1993) 2 SCNJ 41 at 49; Ajie v. Ahunanya (2001) 7 NWLR (Pt. 711) 34 at 38; Laminu v. Maidugu (2015) 7 NWLR (Pt. 1458) 289 at 312, 315; Orient Bank (Nig.) Plc v. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 37 at 76; Rebold Ind. Ltd v. Magreola (2015) 8 NWLR (Pt. 1461) 210 at 227; Duru V. FRN (2013) 6 NWLR (Pt. 1351) 441 at 460; Ebhota v. P.I&P.D. co. Ltd (2005) 15 NWLR (Pt. 948) 266 at 289. PER ADAH, JC.A.
WHETHER OR NOT A COURT HAS POWERS TO SET ASIDE A DOCUMENT IT HAS NOT SEEN
Indeed, No Court has powers to set aside a document, ruling or proceedings, it has neither seen nor set its eye on. The production of the document, or the proceeding or ruling to be set aside is a sine qua non for the exercise of the discretion of the Court called upon to set aside the proceeding or ruling. REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION, NIG. V. JULIET EKPO (2016) 4 NWLR (Pt. 1801) 101 at 114. PER ADAH, JC.A.
THE LAW ON PRIVITY OF CONTRACT
Indeed, the law is well settled that where there is no privity of contract between two (2) or more person as it relates to any contract or subject matter, then none of them can enforce any terms of the contract or be made to suffer any liability which emanates from the contract.
Once it has been determined that no enforceable contract exists between the parties or that what took place between the parties does not translate to a contract between them, then the foundation of the reliefs claimed collapses with the absence of a cause of action. BILANTE INT’L LTD V. NDIC (2011) 46 (Pt. 2) NSCOR 1002 at 1015. PER ADAH, JC.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on 23rd January, 2017, in suit No: FCT/HC/CV/21/2013.
The appellant as plaintiff instituted this action at the trial Court and claimed against the Respondents as Defendants all the five reliefs as per the Statement of Claim, thus:
a. A Declaration that the letter of offer for sale of flat 2, Block 18, 5222 Road, phase 4, Kubwa — Abuja which was issued to the 1st Defendant by the 2nd Defendant was wrongful, oppressive, mala fide, null, void and of no legal effect whatsoever.
b. An Order of this Honourable Court, setting aside the aforesaid letter of offer of sale of Flat 2, Block 18, 522 Road, phase 4, Kubwa — Abuja issued to the 1st Defendant by the 2nd Defendant on the ground that the said letter of offer was wrongful, oppressive, mala fide, null, void and of no legal effect whatsoever.
c. An Order of this honorable Court, setting aside the Report of the administrative panel, set up by the Ad-Hoc Committee on sale of Federal Government of Nigeria Houses (FCT) Abuja in so far as the said Report affects the legal and proprietary rights of the plaintiff over Flat 2, Block 18, 522 Road, Phase 4, Kubwa — Abuja.
d. A Declaration that the plaintiff (as against the 1st Defendant) is the person that is legally entitled to a letter of offer of sale of Flat 2, Block 18, 522 Road, Phase 4, Kubwa — Abuja to the plaintiff.
e. N5,000,000.00 (Five Million Naira) only against the 2nd Defendant as exemplary damages for the injury to the plaintiff’s feelings.
The 1st Defendant now 1st Respondent denied the claim of the plaintiff now Appellant and counter-claimed against the appellant, thus:
1. A Declaration that the 1st Defendant/Counter-claimant is the sole genuine, legal, equitable and the valid owner of the said flat 2, block 18, 522 Road, Phase 4 Kubwa, Abuja (which is in dispute in the suit) because she is the valid holder of the letter and which she has duly accepted in respect of the said apartment by the 2nd Defendant.
2. A Declaration that the offer letter that was issued to the 1st Defendant/Counter-claimant was duly issued in compliance with the law, fairness, equity and pursuance to the said public notice No. 1, Approved Guidelines for the sale of Federal Government Housing in the FCT to career public servants, which is contained in the official Gazette No. 82, Vol. 92 of 15th August, 2005.
3. An Order of this Honourable Court immediately evicting/ejecting the plaintiff from the said flat 2, block 18, 522 Road, phase 4, Kubwa — Abuja (which is in dispute in this suit) and compelling her to immediately yield up the vacant possession of the afore stated flat 2, block 18, 522 Road, Phase 4, Kubwa – Abuja to the 1st Defendant/counter-claimant.
4. An Order of perpetual injunction permanently/perpetually stopping, restraining and prohibiting the plaintiff, her staff, privies, assigns, agents, the plaintiff in any manner whatsoever or either under her control from any act of trespass or interference with the 1st Defendant/counter-claimant right and possession of the said apartment in dispute and from ever illegally occupying/possessing the said apartment nor interrupting, disrupting nor disturbing the 1st Defendant/counter-claimant possession, title or right of ownership over the afore stated Flat 2, Block 18, 522 Road, Phase 4 Kubwa — Abuja from the date of the judgment/determination of this suit and perpetually/eternally.
5. The 1st Defendant/counter-claimant claims the award of the sum of Five Million Naira (N5,000,000.00) against the plaintiff as general damages for all the psychological trauma, inconveniences, pains, stress, lost of business opportunities, running around, expense, etc which the plaintiff has being causing the 1st Defendant/Counter — claimants as a result of the plaintiff’s unjustifiable insistence that she is the person duly entitled to the offer letter of the apartment in dispute in this suit and the 1st Defendant/counter claimant’s frantic pursuit to preserve and protect the offer letter that was given to her in respect of the apartment in dispute.
6. The 1st Defendant/counter-claimant claims the sum of One Million Naira (N1,000,000.00) from the plaintiff as legal cost of filing and prosecuting this Defense to the substantive suit and this counter-claim on the 1st Defendant/counter-claimant’s behalf, which the 1st Defendant/counter-claimant paid to his counsel in this suit to file and prosecute the defense—to the substantive suit and this counter-claim on her behalf.
7. The 1st Defendant/Counter-claimant’s further claims ten percent (10%) interest of the entire monetary sum awarded by this Honorable Court in favour of the 1st Defendant/counter-claimant in this suit against the plaintiff until the entire judgment sum is fully liquidated.
8. And any other consequential order or relief which this Honourable Court may deem necessary to make in this suit.
Upon the service of the Writ of Summons on the 2nd Defendant, he filed his Statement of Defence on 12th May, 2015. The plaintiff also filed a defense to the 1st Defendant’s counter-claim on the 6th November, 2015.
In proof of her claim, the plaintiff now appellant testified as PW 1 and tendered several exhibits in evidence, which were marked as Exhibit A, B, C, D, E, F, G, H, l, J, K, L and M. The 1st Defendant called DW1 to testify and tendered several exhibits in evidence, marked as Exhibit A, B, C, D, E, F, G, H, l, J, K, L, M and N. The 2nd Defendant called one witness to testify in DW2.
Parties filed and exchanged their respective written addresses. In well considered judgment delivered on the 23rd January, 2017, the trial Court dismissed the case of the plaintiff for lacking in merit and proceeded to grant the counter-claim of the 1st Defendant.
Dissatisfied with the said decision of the trial Court, the Appellant appealed to this Court vide a Notice of Appeal filed on the 30th January, 2017 and an Amended Notice of Appeal filed on the 29th January, 2020 but deemed properly filed and served on the 18th March, 2021. The Record of Appeal was transmitted to this Court on 21st June, 2017 but deemed properly filed and served on 26th June, 2018.
The parties filed and exchanged their respective briefs of argument. Appellant’s Brief of Argument was filed on 29th May, 2020 but deemed properly filed and served on 18th March, 2021. While the 1st Respondent’s Brief of Argument was filed on the 18th June, 2021 and the 2nd Respondent’s Brief of Argument was filed on 17th June, 2021.
Counsel for the Appellant submitted four (4) issues for determination of this appeal. The four (4) issues are:
1. Whether the trial Court was right when he upheld the letter of offer issued to the 1st Respondent. (Distilled from Grounds 1, 2, 3, 4, 7 and 14 of the Grounds of Appeal).
2. Was the learned trial Judge correct in his decision that the Appellant did not bring the existence of her apartment to the notice of the 2nd Respondent? (Distilled from Grounds 10 and 12 of the Ground of Appeal).
3. Whether the learned trial Judge was right when he rejected Exhibits F, J, L and M in evidence, and whether the rejection did not occasion a miscarriage of justice. (Distilled from Grounds 5, 8, 9 and 11 of the Grounds of Appeal).
4. Was the trial Court correct in its decision that since the Appellant was not a party to the contract between the 1st and the 2nd Respondents, the Appellant would not be heard to challenge the sale? (Distilled from Grounds 6 and 13 of the Grounds of Appeal).
In response, the learned counsel for the 1st Respondent submitted a lone issue for the determination of this appeal thus:
Whether at all times material to this suit and having regard to the facts, evidence and circumstances, the Appellant made out a case to warrant the sustenance of his reliefs and the discountenancing of the judgment of the trial Court.
While the 2nd Respondent also raised a lone issue for the determination of this appeal, thus.
Whether the lower Court rightly considered both in law and facts the case of the Appellant in judgment by dismissing same, and equally rightly considered both in law and facts the case of the Respondents and granted some of the Counter-claims of the 1st Respondent, after taking cognizance of the preponderance of available evidence. (Distilled from Grounds 1, 2, 3 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Amended Notice of Appeal of the Appellant).
PRELIMINARY MOTION ON NOTICE
On the 24th day of February, 2022, when this appeal came up for hearing, counsel for the 2nd Respondent moved his Motion on Notice filed on the 24/06/2021 which seek to strike out ground 7 of the Appellant’s notice of appeal on the ground that there was no leave. Counsel urged the Court to strike ground 7 out as he argued in his brief of argument.
In response to the Motion, counsel for the Appellant filed a counter-affidavit on 28/06/2021 where he urged the Court to dismiss the Motion of the 2nd Respondent.
Ground 7 of the Amended Notice of Appeal attacked in this Preliminary Objection reads:
Ground Seven:
The learned trial Judge erred in law when he relied on the 1st Respondent’s incompetent witness’ statement on oath to sustain her defence and counterclaim.
Particulars of Error:
i). The 1st respondent divides her witness statement into two, the first she heads as witness statement on oath” and the second she heads as “witness statement on oath in respect of the counterclaim”.
ii). Her first witness statement has 53 paragraphs but has no signature of the deponent as well as the signature and stamp of the Commissioner for Oaths while the second witness statement on oath with 18 paragraphs does not have heading of the Court and the name and address of the deponent.
iii) A counter-claimant has the onus of proving his counterclaim as same is a sword and not a shield.
Ground 7 is dealing with the competence of the witness statement of the 1st respondent. The issue was not raised at the trial Court neither was it addressed by that Court all through the consideration of the case at the trial Court. When an issue not raised at trial Court is to be raised on appeal, leave of Court is required. It is settled law that where a party intends to raise a fresh issue on appeal, he has to seek and obtain the leave of the appellate Court for the issue to be validly raised and entertained. See — Olagunju & Anor v. PHCN, Plc (2011) 10 NWLR (Pt. 1254) 113.
Since there is no leave of the Court obtained before the issue is raised in Ground 7, the ground is incompetent and it is hereby struck out. The Preliminary Objection in that wise succeeds and it is allowed.
However, the appeal from the amended notice and grounds of appeal has fourteen grounds. There are therefore, thirteen competent grounds outside ground 7 which can sustain this appeal. I therefore, shall now go into the merit of this appeal. It must be born in mind that issue one mentioned ground 7 as one of the grounds supporting the issue but without ground 7, there are grounds 1, 2, 3, 4 and 14 backing up that issue. The issue therefore, is competent and it shall be duly considered in this appeal.
This appeal will therefore, be determined on the four (4) issues formulated by the appellant. I now start with issues 1, 2 and 3 together.
Issues One, Two and Three:
These issues are – Whether the trial Court was right when he upheld the letter of offer issued to the 1st Respondent;
Was the learned trial Judge correct in his decision that the Appellant did not bring the existence of her apartment to the notice of the 2nd Respondent; and
Whether the learned trial Judge was right when he rejected Exhibits F, J, L and M in evidence, and whether the rejection did not occasion a miscarriage of Justice
In arguing this issue, learned counsel for the Appellant submitted that from their provisions and intendment, the approved guidelines and the official circular by the Head of Service, represented the policy of the Federal Government during the monetization period. It is also submitted that the policy is a set of ideas or a plan of what to do in a particular situation that has been agreed officially by a group of people, a business organization, a governmental or a political party. In legal parlance, it is the general principle by which the government is guided in its management of public matters. Counsel relied on the case of Ogundipe v. The Ministry of FCT (2014) LPELR- 22771 (CA).
Learned counsel for the Appellant submitted that the reason for authenticating such public documents are to obviate the necessity of calling officials to Court to testify as to the genuineness of copies made from the original documents, and to preserve the original documents from being removed from their proper custody through requests that they be tendered in Court. Counsel relied on the cases of Nwadike v. Nwadike (1987) 4 NWLR (Pt. 65) 364 CA; Shyllon v. University of Ibadan (2006) LPELR-7721 (CA); Adekola v. Ailara (2011) All FWLR (Pt. 572) 1696 CA; Ukana v. COP (1995) 8 NWLR (Pt. 416) 206 CA; Power System Plc v. Witt & Buech Ltd. (2007) All NWLR (Pt. 394) 353 CA; CGG (Nig.) Ltd v. Ogu (2005) 8 NWLR (Pt. 927) 366; Hydroworks Ltd v. Rimi Local Government (2002) 1 NWLR (Pt. 749) 569.
Learned counsel for the Appellant submitted that even if the Appellant actually neglected to tender a certified true copy of the gazette containing the approved guidelines; the learned trial Judge ought to deem the uncertified copy tendered by the Appellant as having been duly certified because the 1st Respondent had tendered a certified true copy of the same gazette as Exhibit DWA. The law is that where a party annexes an uncertified copy of a public document to his processes and the other party annexes a certified true copy of the same document, the other is deemed automatically certified. Counsel relied on the cases of Franchal Nig. Ltd v. Nig. Arab Bank Ltd 2 SCNQR 1035; Kala v. Potiskum (1998) 3 NWLR (540) 1; Chime v. Ezea (2008) 2 LRECN 673 744; Abubakar v. Yar’adua (2008) 4 NWLR (Pt. 1078) 465.
Counsel for the Appellant further argued that even before the enactment of the 2011 Evidence Act, computer printouts of ordinary documents such as Exhibits L and M were easily admissible as photocopies upon fulfilment of certain conditions. It will therefore amount to an attempt to rubbish the intendment of Section 84 of the Evidence Act if such spurious objection to the admissibility of ordinary documents emanating from the computer like printout is countenanced. It is trite that in order to discover the intention of the lawmaker, the entire statute and not isolated portions of the enactment in question must be read together. Counsel relied on the cases of Ajuebor v. Attorney General of Edo State (2001) FWLR (Pt. 52) 2138 CA; Okpalaeke v. NEPA (2003) 14 NWLR (Pt. 840) 383; Onyero v. Nwadike (2011) 8 NWLR (Pt. 1279) 554; Jimoh v. Akande (2009) NWLR (Pt. 1135) 549.
Learned counsel for the Appellant submitted that a ministerial act is one in which a public officer is required to perform without regard to his own judgment or opinion concerning the propriety or otherwise of the Act. The law is that where the manner for exercising an administrative duty is plainly prescribed, the discretion of the administrator to carry out the act in his own way becomes automatically abrogated. Counsel relied on the cases of Psychiatric Hospital Management Board v. Ejitagha (2000) 11 NWLR (Pt. 677) 15; Amasike v. Registrar of CAC (2006) 3 NWLR (Pt. 968) 462; Fawehinmi v. Inspector General of Police (2002) 7 NWLR (Pt. 767) 606; Lonestar Drilling Ltd v. Triveni Engineering Ind. Ltd (1999) 1 NWLR (Pt. 588) 622; Monguno v. Bluewhales & Co (2010) LPELR-4502 (CA); Chevron Nig. Ltd v. Enioye (2005) All FWLR (Pt. 265) 1168; Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342.
In response, learned counsel for the 1st Respondent argued that where a party seeks to rely on certain evidence or facts in proof of his or her case, such facts must be pleaded and evidence led in support. Counsel relied on the case of Emerhor v. Okowa (2017) All FWLR (Pt. 896) 1868 at 1916 Para. E.
Learned counsel for the 1st Respondent submitted that it would amount to technical justice if the allocation of the subject matter of this suit to the 1st respondent is nullified for the simple reason that the application fee of N10,000.00 was paid a day after Exhibit DW1G was issued to her particularly taking into consideration the fact that the Appellant has not suffered any miscarriage of justice. This Honourable Court and the Supreme Court have in a long line of cases stated that Courts of law should do substantial justice and not technical justice. Counsel relied on the cases of Fajebe v. Opanuga (2019) 5 NWLR (Pt. 1664) 149 at 160 Para. H; Federal Republic of Nigeria v. Duru (2019) 11 NWLR (Pt. 1683) 280 at 315 Paras. G-A; Fidelity Bank Plc v. Chief Andrew Monye & Ors., (2012) LPELR-7819 (SC).
Learned counsel further argued that the document tendered as Exhibit F is a photocopy. This makes it a secondary evidence by virtue of Section 87 of the Evidence Act. Section 88 of the Evidence Act, 2011 provides that documents shall be proved by primary evidence except in the cases secondary evidence permissible in respect of a public document is a Certified True Copy of the document, no other secondary evidence is admissible. This therefore makes exhibit F, a photocopy of a public document which is not certified, inadmissible. Counsel relied on the cases of Alhaji Yekini Jimoh v. The Honourable Minister of the Federal Capital Territory (2019) 5 NWLR (Pt. 1664) 45 at 67 Paras. G-H; John v. State (2017) 16 NWLR (Pt. 1591) 304 at 349 Para. F; Agip (Nigeria) International Limited v. Agip Petroli International (2010) All FWLR (Pt. 520) 1198 at 1249 Paras. A-C; Seriake Dickson v. Timipre Sylva (2017) 8 NWLR (Pt. 1567) 167 at 202 Par. G; First Bank of Nigeria v. T. S. A. Industries Limited (2010) All FWLR (Pt. 537) 633 at 665 Paras. G-H.
Learned counsel for the 1st Respondent submitted that the Appellant’s first issue for determination which purports to be distilled from six (6) Grounds of Appeal, including the seventh Ground of Appeal which raises complaint about the 1st Respondent’s respective statement’s on Oath, does not mention either explicitly or vaguely the issue of the competence or otherwise of the 1st Respondent’s respective witness Statement on Oath. Counsel submits that by the aforementioned commission/omission of the Appellant, the Appellant is deemed to have abandoned Ground 7 of her Grounds of Appeal. Counsel relied on the cases of Nigerian Bottling Company Plc v. Ubani (2014) 4 NWLR (Pt. 1398) 421 at 467 Paras. C-E; United Bank for Africa Plc v. Emeka Onuoha & Ors (2014) LPELR-24360 (CA); AIC Ltd v. NNPC (2005) 5 SC (Pt. 11) 60.
In response, Counsel to the 2nd Respondent argued that the Appellant at the lower Court sought majorly for declaratory reliefs and so must ordinarily have cogent, credible, sufficient and reliable evidence to be entitled to her declaratory reliefs and cannot rely on the weakness of Respondents’ case. Counsel relied on Section 134 of the Evidence Act, 2011; Mohammed v. Sokoto (2021) 4 NWLR (Pt. 1766) 205 at 221-222; Chevron (Nig.) Ltd v. Omoregha (2015) 16 NWLR (Pt. 1485) 336 at 350.
Learned counsel argued that for the Appellant to succeed at the lower Court, she must in evidence prove that she complied with the “Approved Guidelines for the sale of Federal Government Houses in the Federal Capital Territory to career Public Servants” and/or the “Approved Guidelines for the sale of Federal Government Houses in the Federal Capital Territory to the General Public and Public Office Holders” both codified in the Federal Capital Territory Act-Subsidiary Legislation Cap. 503, Laws of Federal Capital Territory Nigeria Vol. 2. The said subsidiary legislation was published and gazette as public Notice No. 1 and Public Notice No. 2 of the Federal Republic of Nigeria Official Gazette No. 82 Vol. 92 Government Notice No. 155 Lagos dated 15th August, 2005. This Gazette was tendered in evidence and the Court is prayed to take judicial notice of the gazette as codified in the aforesaid laws of the Federal Capital Territory and gazette and tendered in evidence before the lower Court. This is the law that regulates sale of Federal Government Houses in the Federal Capital Territory. The law is that a subsidiary legislation or instrument as the above codified or gazette guidelines need not be pleaded or tendered in Court before the Court can take notice of it. Counsel relied on the cases of Lakanmi v. Adene (2003) 10 NWLR (Pt. 828) 353 at 374; B.O.N Ltd v. Babatunde (2002) 7 NWLR (Pt. 766) 389 at 413; Aboseldehyde Lab Plc v. U.M.B Ltd (2013) 13 NWLR (Pt. 1370) 91 at 132; Ude v. Nwara (1993) 2 SCNJ 41 at 49; Ajie v. Ahunanya (2001) 7 NWLR (Pt. 711) 34 at 38; Laminu v. Maidugu (2015) 7 NWLR (Pt. 1458) 289 at 312, 315; Orient Bank (Nig.) Plc v. Bilante International Ltd (1997) 8 NWLR (Pt. 515) 37 at 76; Rebold Ind. Ltd v. Magreola (2015) 8 NWLR (Pt. 1461) 210 at 227; Duru V. FRN (2013) 6 NWLR (Pt. 1351) 441 at 460; Ebhota v. P.I&P.D. co. Ltd (2005) 15 NWLR (Pt. 948) 266 at 289.
Learned counsel for the 2nd Respondent submitted that the Appellant in her claim at the lower Court sought for an order of the Court to set aside the Report of the Administrative panel set up by the Ad-hoc Committee on sale of Federal Government of Nigeria Houses (Federal Capital Territory) Abuja. My lords, there is no report of Administrative panel tendered and admitted in evidence in the Court below to set aside. Appellant deliberately refused to frontload and tender the said report of Administrative panel Appellant. Counsel relied on Section 167 (d) of the Evidence Act, 2011; Zubairu v. State (2015) 16 NWLR (Pt. 1486) 504 at 526; Shodiya v. State (2013) 14 NWLR (Pt. 1373) 147 at 168-169; Olusanya v. Osinleye (2013) 7 NWLR (Pt. 1367) 148 at 164; Okpoko Community Bank Ltd v. lgwe (2013) 15 NWLR (Pt. 1376) 167 at 185, 186; Azuibike v. Diamond Bank Plc (2014) 3 NWLR (Pt. 1393) 116 at 134; R.T.A.G.WI.N v. Tort (infra) at 114; Ogbonna v. Ogbuji (2014) 6 NWLR (Pt. 1403) 205 at 226-227; Omega Bank Nig, Plc v. O. B. C Ltd (2002) 16 NWLR (Pt. 794) 483 at 516; Registered Trustees of Assemblies of God Mission, Nigeria v. Juliet Ekpo Tort (2016) 4 NWLR (Pt. 1501) 101 at 114; Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40 at 69, 71, 81, 91-92; Asuquo v. Eyo (2014) 5 NWLR (Pt. 1400) 247 at 364; Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 295; Kara v. Wassah (2001) 18 NWLR (Pt. 744) 117 at 139; Obmiami Bricks & Stone (Nig.) Ltd v. A.C.B. Ltd (1992) 9 LRCN 585 at 638; Okeke v. Nnolin (2015) 5 NWLR (Pt. 1453) 444 at 476; Ezekwesili & Ors v. Agbapuonwu & Ors (2003) 14 NSCQR 189 at 210; Vinz Int’l (Nig.) Ltd v. Morohundiya (2009) 11 NWLR (Pt. 1153) 562 at 579; Beta Glass Plc v. Epaco Holdings Ltd (2011) 4 NWLR (Pt. 1237) 223 at 244; A.G Imo State v. Imo Rubber Estate Ltd (2020) 13 NWLR (Pt. 1741) 209 at 239-240.
Learned counsel for the 2nd Respondent submitted that the 1st Defendant’s (now 1st Respondent) Witness Statement on Oath was adopted on the 14th day of April 2016, the Appellant’s counsel was in Court. In fact, P.I. Oyewole, Esq., appeared with B.K. Barikpoa for the plaintiff (appellant) on that day, P.I. Oyewole did not object. Counsel relied on the cases of Shurumo v. The State (2010) 44 NSCQR 135 at 154, 179-180; Federal Republic of Nigeria v. Koyode-Beckley (2020) 16 NWLR (Pt. 1750) 219 at 251 Paras. A-F; Obanigba v. Abibu (2021) 3 NWLR (Pt. 1762) 84 at 109 Paras. B-F; Barbus & Co. Nig. Ltd. & Anor. v. Okafor-Udeji (2018) 11 NWLR (Pt. 1630) 298 at 312 Para. G, 314 Paras. C-F; UBA Plc v. BTL Ind. Ltd (2006) 19 NWLR (Pt 1013) 16 at 107-108; CGG v. Aminu (2015) 64 NSCQR 767 at 785; Christaben Group Ltd v. Oni (2008) 11 NWLR (Pt. 1097) 84 at 108; Tiamiyu v. Olaogun (2008) 17 NWLR (Pt. 1115) 66 at 92; APGA v. Ohakim (2009) 4 NWLR (Pt. 1130) 116 at 147; INEC v. Action Congress (2009) 2 NWLR (Pt. 1126) 524 at 584 Paras. D-E; Jev v. lyortyom (2014) 14 NWLR (pt. 1428) 575 at 608 to 609; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513)38 at 95 Paras. A-D.
Finally, learned counsel for the 2nd Respondent argued that the lower Court ought not to have rejected Exhibits PW F, PW J PW L and PW M. In the first place, Exhibit PW F is a public document. It was issued by the Federal Capital Administration, office of the Minister of the Federal Capital Territory and signed personally by the Minister of the Federal Capital Territory. It was issued to one Modupe Onasanya but she did not accept it. It is only the Minister of the Federal Capital Territory’s signature in that document. It is a photocopy of public document and therefore inadmissible in evidence by virtue of Section 90 (l) (C), 104 and 105 of the Evidence Act, 2011. Only Certified True Copy are admissible for photocopies of public document. Counsel relied on the cases of Sanmi v. State (2019) 13 NWLR (Pt. 1690) 551 at 584, 585; Uduma v. Arunsi (2012) 7 NWLR (Pt. 1298) 55 at 143 Paras. F-G; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Ekele v. lwodi (2014) 15 NWLR (Pt. 1431) 557 at 581; Osuji v. Ekeocha (2009) 39 NSCQR 532 at 590; GTB v. Kuti (2020) 9 NWLR (Pt. 1730) 448 at 476-477; Nwadinobi v. MCC (Nig.) Ltd (2016) 1 NWLR (Pt. 1494) 427 at 447-448, 451; BON v. Babatunde (2002) 7 NWLR (Pt. 766) 389 at 413; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1 at 114; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467 at 484-485.
The instant case is directly fought on facts having regards to the fact that the reliefs sought are mainly declaratory reliefs, it is trite is within the discretion of the trial Court and that discretion is not meant to be slightly exercised, especially where the evidence placed in support has been heavily discredited. See the cases of Awomuti v. Salami & Ors. (1978) 11 NSCC 180, 185; Ogolo & Ors., v. Ogolo & Ors. (2003) 18 NWLR (Pt. 852) 494; Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731, 749. It follows therefore, that the declaratory reliefs must be refused where the plaintiff fails to lead or place credible and convincing evidence before the trial Court. For it to be granted, the plaintiff must satisfy the Court on the balance of probabilities.
The trial Court in its judgment found and holds as follows:
…
Plaintiff here wants the letter of offer given to the 1st Defendant to be voided. Plaintiff is not a party to the contract and so cannot apply to set aside the contract she was not a party to base on the doctrine of privity of contract.
Plaintiff in her claim again sought for an order of this Court to set aside the report of the Administrative panel set up by Ad-hoc committee on sale of Federal Government of Nigeria Houses. The said report was not made available to the Court, throughout the trial.
That is very fatal to Plaintiff’s case.
Indeed, No Court has powers to set aside a document, ruling or proceedings, it has neither seen nor set its eye on. The production of the document, or the proceeding or ruling to be set aside is a sine qua non for the exercise of the discretion of the Court called upon to set aside the proceeding or ruling. REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION, NIG. V. JULIET EKPO (2016) 4 NWLR (Pt. 1801) 101 at 114.
On the whole, therefore, Plaintiff’s case must fail. For being unmeritoriously a waste of time and effort. It is liable to be dismissed.
Accordingly, CV/21/13, lacking in merit is hereby dismissed.
The next is the counter-claim of the 1st Defendant.
The fact that a valid and binding contract exists between 1st and 2nd Defendants, I shall proceed to give blessing to the said counter claim without having to explain myself again… counter-claim succeeds on the preponderance of evidence.
We have keenly followed the evaluation of the evidence before the trial Court and have found that the evidence before the Court was well evaluated. There is no issue of perversity here. It follows therefore, that the trial Court was on track in its finding that the Appellant as the plaintiff did not prove his case as required by the law. The business of this Court as an appellate Court is to review the decision of the trial Court and not to substitute the findings of the trial Court with his own.
We find no flaws with the evaluation of evidence by the trial Court in the instant case. Issues one, two and three are hereby resolved against the Appellant.
Issue Four:
This issue is – Was the trial Court correct in its decision that since the Appellant was not a party to the contract between the 1st and the 2nd Respondents, the Appellant would not be heard to challenge the sale?
Learned counsel for the Appellant submitted that the doctrine of privity of contract is the connection or relationship which exists between two or more contracting parties. The doctrine, which is part of our corpus juris arising under it or any person except the parties to it. Put simply, a stranger to a contract cannot gain or be bound by such contract, even if the contract was made for his benefit. Counsel relied on the cases of John Davids Construction Co. Ltd v. Riacus Co. Ltd (2019) LPELR-47588 (CA); Rebold Ind. Ltd v. Magreola (2015) 8 NWLR (Pt. 1461) 201; Mai-Kiri v. Yahaya (2018) LPELR-46595 (CA); Amaechi v. INEC (2015) 5 NWLR (Pt. 1080) 277.
Learned counsel for the 1st Respondent submitted that the law is trite that it is only parties to a contractual agreement who can benefit from the agreement and enforce the rights and obligations to the said agreement. Persons who are not parties to an agreement cannot be seen to complain about the validity or otherwise of a contractual agreement which they are not privy to. Counsel relied on the cases of Okon v. Ubi (2006) All FWLR (Pt. 328) 717 at 750 Paras. B-D; Emeka S. Enemchukwu v. Chimaroke Okoye & Anor (2016) LPELR 40027 (CA).
The trial Court in its judgment never decided that the Appellant could not challenge the contract of sale. The decision of the Court peaked up in its conclusion at page 285 of the Record of Appeal as follows:
Indeed, the law is well settled that where there is no privity of contract between two (2) or more person as it relates to any contract or subject matter, then none of them can enforce any terms of the contract or be made to suffer any liability which emanates from the contract.
Once it has been determined that no enforceable contract exists between the parties or that what took place between the parties does not translate to a contract between them, then the foundation of the reliefs claimed collapses with the absence of a cause of action. BILANTE INT’L LTD V. NDIC (2011) 46 (Pt. 2) NSCOR 1002 at 1015.
In any claim for declaration, such as in the instant case, the focus must be on the credibility of the evidence placed before the Court by the plaintiff and not on the weakness of the case of the Respondents. In the instant case, the trial Court found correctly that the plaintiff’s case had no merit. The Court however, considered the counter claim of the Respondents and found that there was merit. This findings of the trial Court accords with the evidence before the Court in the case. The trial Court was therefore, right in its conclusion in this case. This issue four is therefore, resolved in favour of the Respondents.
From the foregoing, it is our firm view that this appeal is lacking in merit. The appeal is therefore, dismissed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in advance, the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.
I am in complete agreement with the reasoning and conclusion and therefore find the appeal lacking in merit and I dismiss same. I abide by the orders made therein and make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, STEPHEN JONAH ADAH (JCA) just delivered, and it substantially captured all the issues I raised during the conference of Justices that heard this appeal.
I therefore agree with the findings and conclusions reached in the lead judgment that this appeal lacks merit and it is accordingly dismissed.
The judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/21/2013 is hereby affirmed.
Appearances:
D.J. Muniru Esq. For Appellant(s)
Udu Diegbe Esq., for the 1st Respondent.
Idumodin Ogumu Esq., with him Usman Yuzoma Esq. for the 2nd Respondent. For Respondent(s)