AIYEJUNI & CO. (NIG.) LTD & ANOR v. AKINJAGUNLA & ANOR
(2020)LCN/14515(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/AK/31/2010
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
1. AIYEJUNI AND COMPANY (NIGERIA) LIMITED 2. MR. AIYEJINI ENOCK APPELANT(S)
And
1. CHIEF R. A. AKINJAGUNLA 2. OBA ANDREW IKUESAN RESPONDENT(S)
RATIO
THE PRIMARY DUTYY OF THE TRIAL COURT TO EVALUATE EVIDENCE
Evaluation connotes weighing the evidence both oral and documentary in the context of the surrounding circumstances of a particular case. A finding of fact involves perception and evaluation of evidence. A trial Court is saddled with primary duty to evaluate relevant and material evidence both oral and documentary after hearing and watching the demeanor of witness called by the parties in any proceeding having regard to their pleadings. Court appraises evidence by constructing an imaginary scale of justice and put the evidence of the parties on the two pan of the scale. It then weights them to determine which is heavier in terms of quality but not in quantity of the testimonies. See Odutola v. Mabogunje (2013) 7 NWLR (pt 1356) 522; Ndulue & Anr v. Ojiakor & Ors (2013) LPELR 19889 (SC); Ogundalu v. Macjob (2015) LPELR 24458 (SC), Omisore & Anr v. Aregbesola (2015) LPELR 24803 (SC). PER ABDULLAHI, J.C.A.
MEANING OF A JUDGEMENT BEING AGAINST THE WEIGHT OF EVIDENCE
A castigation of a decision on the ground that a judgment is against the weight of evidence connotes that the decision of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the Court either wrongly accepted or that the interference it drew or conclusion reached based on the accepted evidence is unjustifiable. It equally connotes that when the evidence adduced by the complaining party is weighted against the one given by the respondent, the judgment given to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight, the trial Court is enjoined by law to consider whether the evidence is relevant, admissible, credible or more probable than that given by the other party. Where a trial Court failed to discharge that duty, it would be said that there had been a miscarriage of his primary duty and the law places this Court in a position with the lower Court in appraisal of documentary evidence. SeeAyuya v. Yonrin (2011) 10 NWLR (pt 1254) 135; Onwuzuraike v. Edozien (2016) 6 NWLR (pt 1508) 215; Ogundalu v. Macjob (Supra) and Ezechukwu v. Onwuka (2016). PER ABDULLAHI, J.C.A.
WHETHER OR NOT THE COURT HAS JURISDICTION TO RAISE AN ISSUE SUO MOTU
It is trite that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its judgment without hearing both sides. Where a Court raised an issue without giving counsel the opportunity to address on it, the Court would be in breach of the principle of fair hearing. See Dickson Ogunseinde Virya Farms Ltd v. Societe Generale Bank Ltd & Ors. (2018) LPELR 43710 (SC); Leaders of Company Ltd & Anr v. Bamaiye (2010) LPELR 1771 (SC); Odedo v. PDP & Ors (2015) LPELR 24738 (SC); Mabamije v. Otto (2016) LPELR 26058 (SC). PER ABDULLAHI, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF IS ON THE PARTY WHO ALLEGES THE AFFIRMATIVE OF THE ISSUE
That the appropriate principle of law applicable to this matter is that burden of proof is on the party who alleges the affirmative of the issue. He cited OKECHUKWU VS. NSAH (1967) NWLR 368; OJOH V. KAMALU (2006) VOL. 136 LRCN; ABIODUN VS. ADEHIN (1962) 1 ALL NLR. 500 and MAIDURA V. ALIYU (2000) FWLR (PT. 19) 433 for the view. PER ABDULLAHI, J.C.A.
WHETHER OR NOT PLEADINGS ARE MEANT TO BE SPECIFIC AND DOCUMENTS SOUGHT TO BE RELIED ON MUST BE SPECIFICALLY PLEADED
It is trite that pleadings are meant to be specific and document sought to be relied upon must be specifically pleaded. SeeAGBOOLA V. UBA PLC. & ORS. (2011) LPELR 9353 (SC) and ANYAFULU & ORS V. MEKA & ORS. (2014) LPELR 22336 (SC). Pleading constitutes notice of issues the parties intend to canvass at the hearing, a reference to a document, brings in to the pleading the whole contents. A party is only required to plead the fact or effect of the document on the case. See AGWUNEDU & ORS VS. ONWUMERE (1994) LPELR 259 (SC); MOBIL OIL PLC. V. IAL 36 INC. (2000) 6 NWLR (PT. 659) 46 and 7UP BOTTLING CO. V. UGWU & ORS. (2017) LPELR 42685 (SC).PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ondo State, sitting at Okitipupa (hereinafter referred to as the Lower Court) in Suit No. HOK.51.2006 delivered on 8th July, 2010 by O. A. Adegbhingbe, J. The Appellants and the Respondents were the respective Plaintiffs and Defendants before the Lower Court.
The facts of the case which led to this appeal are as follow:-
Plaintiffs/Appellants’ case as stated by the 2nd Plaintiff/ Appellant is that in 1981 he decided to move from Lagos to Igbokoda and commenced business in petroleum products in the riverine area of defunct Ilaje/Ese Odo Local Government as there was no such business in the area then. He had some initial problem with Policemen in that he had no valid document covering sale of petroleum products in the riverine. According to him the document he possessed then cannot transact such business beyond Igbokoda. In order to solve this problem he decided to approach the 1st Defendant/Respondent who was one of his customers who is an educated person and had been in the business for long, for assistance.
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The 1st Defendant/Respondent agreed to assist and he actually did. He (1st Defendant/Respondent) with his accumulated experience in petroleum business was able to procure all the relevant documents for the 2nd Plaintiff/Appellant.
Having possessed the relevant documents for the business the problem facing the 2nd Appellant was that N.N.P.C. made it a condition precedent for him to have a barge without which no direct allocation of petrol can be supplied to him to operate in the riverine. Since N.N.P.C. made it compulsory to have a barge before the 1st Plaintiff/Appellant could have a direct supply of petrol from N.N.P.C. the 1st Plaintiff/Appellant met his usual friend i.e the 1st Respondent who told him that he would help him out. The 1st Defendant/Respondent took the 1st Appellant to one Chief Aweneyeri who was a friend to the 1st Respondent. Chief Aweneyeri and 1st Respondent went inside and asked the 2nd Appellant to sit outside. At the end of their discussion 1st Respondent came out to apprise the 2nd Respondent outside that Chief Aweneyeri had a barge of the specification given by N.N.P.C. but insisted that the last price was Two Hundred Thousand
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Naira (N200,000.00). The 2nd Appellant had only N100,000.00 and the 1st Respondent added N100,000.00 on condition that the barge would be purchased in his name but to be transferred to the 2nd Appellant as soon as the N100,00.00 was refunded.
When the 2nd Appellant refunded the N100,000.00 the 1st Respondent released the barge and transferred the ownership and possession to the 2nd Appellant vide Exh. P 13. When the barge was transferred to the 2nd Appellant by the 1st Respondent, N.N.P.C. which had to be informed was informed vide Exh. P16. There was no time the Appellants returned the barge to the 1st Respondent. The Appellants knew nothing about Exh. D14.
The Appellants parked the barge at the Marine Police Wharf in Igbokoda loading it with fuel to sail to the sea, when he came to discover that the barge had been stolen. The matter was reported to the police, both the police and the 2nd Appellant searched for the barge unsuccessfully until September, 2005 when the barge was found at Fisheries Terminal Igbokoda.
2nd Appellant went to alert the police, police swifted into action consequent upon which it was discovered that the 2nd Respondent
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who brought the barge there. 2nd Respondent claimed ownership of the barge, claiming that he brought it from the 1st Respondent. The police advised the 2nd Appellant to go to Court.
Sequel to that the appellants via a writ of summons dated and filed on 20th day of June, 2006 beseeched the Lower Court and presented against the Respondents the following reliefs.
1. A declaration that the plaintiffs are the owners of Barge Rovi-3 which the defendants stole at the beach of Marine Road, Igbokoda sometimes in 1990.
2. N1.5 Billion being special and general damages against the defendants for taking away Barge Rovi-3 property of the 1st plaintiff without the consent of the plaintiffs at the Marine Road Beach Igbokoda for 15 years.
3. An order compelling the defendants to return the Barge Rovi – 3 to the plaintiffs in good condition.
As expected, the respondents joined issues with the appellants and denied liability by filling defences. The 1st defendant as DW1 claimed that he bought the barge from one of his friends, Chief Awenayeri at the rate of N50, 000 and payment was made twice and tendered the receipts. That he purchased the barge
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for the purposes of the plaintiffs’ business. That he did not transfer ownership of the barge to the plaintiffs that he only gave them when N.N.P.C demanded for a fuel barge for the issuance of the permit needed by the plaintiffs and even after he gave it to the plaintiffs he still continued to spend money on the barge as its owner. That in lieu of the barge the 2nd plaintiff surrendered his title document of his filling station and his property. He insisted that the 2nd plaintiff should buy the barge but when he couldn’t he returned the title documents of the 2nd plaintiff and took his barge in 1988 and Exhibit D14 was signed. He narrated how he assisted the 2nd plaintiff both financially and otherwise and tendered series of documents to that effect. He denied being in possession of the letter headed paper of the plaintiff. He denied stealing the barge and insisted that he is the owner of the barge and he has never transferred the ownership of the barge to the plaintiffs and that he did not at any time sell the barge to plaintiffs.
The 2nd defendant testified as DW2 and denied stealing the plaintiffs’ barge. That he did not have any
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relationship with the plaintiffs over the barge. That he bought the barge from the 1st defendant in 1990 after the 1st defendant showed him his title documents over the barge. He showed him Exhibit D14 and other receipts-Exhibits D10 and D11. That he paid the 1st defendant the purchase price instalmentally and tendered Exhibits D17, D20 and D21 as evidence of payment. That since 1990 when he bought the barge, he has being using the barge to supply fuel and other things in the riverine area.
In a considered judgment delivered on 8th July, 2010, wrapped at pages 122 – 149 of the record. The lower Court dismissed the plaintiffs claims. The appellants were dissatisfied with the decision. Hence on 16th July, 2010, they lodged a 12 grounds notice of appeal seen at pages 151 – 155 of the record.
Thereafter, the parties filed and exchanged their briefs of argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 19th March 2020. During the hearing of the appeal on 19th March, 2020, learned counsel for the parties who were served by phone call for the hearing of the appeal failed to appear
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without any reason. The briefs were deemed argued by the Court.
In the appellant’s brief of argument, they crafted two issues for determination viz:
1. Whether there is a proper evaluation and appraisal of the totality of the evidence adduced by both parties in this matter before the Court or not.
2. Whether or not the plaintiffs/appellants at any time returned the barge to the 1st defendant, in other words, whether the plaintiffs/appellants are party to Exhibit D14.
The 1st Respondent in his brief of argument framed a lone issue for determination to wit:
Whether or not the learned trial judge was right in dismissing the appellants/plaintiffs case on the ground that they did not prove their case.
The second respondent in his brief of argument nominated a single issue for determination to wit:
Whether the trial judge was not right in dismissing the case of the appellants over the ownership and stealing of Barge Rovi – 3 in the face of overwhelming pleading and evidence of the parties before the lower Court and the unchallenged findings of the Court to the effect that the Appellants are not the owners of the Barge
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Rovi – 3.
A careful look at the three sets of issues shows that they are identical in substance. Indeed, the respondents’ two sets of issues can conveniently be subsumed under the appellants’ issues. By this similarity, I will decide the appeal on the basis of the issues raised by the appellants.
On issue one, learned counsel for the Appellants submitted that where a trial Court had clearly evaluated the evidence and appraised the facts, it is not the business of Court of appeal to substitute its own view for that of the trial Court, except where the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses or has taken erroneous view of the evidence adduced before it or its findings of facts are perverse. See Agbeje & Ors v. Ajibola & Ors (2002) 2 SCM 32; Olatunde & Ors v. Abiodun & Ors (2012) 1 SCM 205.
Learned counsel reproduced some part of the 2nd appellant and that of the 1st respondent testimonies and submitted that the finding of the lower Court that the 1st Respondent bought the barge for himself could not be true in view of the evidence before the Court. That the
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evidence adduced before the Court are not properly evaluated. That at page 135 of the record, the lower Court held that the evidence before it clearly point to the 1st defendant as the person who purchased the barge in the first instance. That this decision of the lower Court was based on the receipt of purchase tendered by 1st Respondent without comparison of the evidence adduced by both parties.
Counsel submitted that the 2nd Appellant in his statement of claim made it clear that he is an illiterate and that he was always at the mercy of the 1st respondent to procure all the necessary papers for him to operate his business in the riverine. That both in their statement of claim and oral evidence the appellants stated how payment was made for the purchase of the barge.
He referred to paragraphs 30, 31, 32 and 33 of the 2nd Appellant’s pleadings and Exhibit P13 which was given to him when the debt was liquated.
Counsel contended that though assessment of evidence and ascription of a probative value is primary duty of the trial Court and that an appellate Court can only interfere with the finding of the trial Court where there are special
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circumstances that warrant such interference. He cited Amadi v. FRN (2008) 2 FWLR 3291 for the view.
Learned counsel submitted that the learned trial judge had introduced issue of legal entity or legal personality which is a point of law sou motu without inviting the counsel to address the Court. That at pages 136 – 137 of the record, the learned trial judge distinguished Chief R. A. Akinjagunla & Sons from Chief R. A. Akinjagunla and claimed that Chief R. A. Akinjagunla cannot transfer valid title to Aiyejuni & Co since it is the name of Chief R. A. Akinjagunla that was written in the two receipts. That the failure of the learned trial judge to call the counsel to address the Court on the issue led to miscarriage of justice. He cited Amasike v. Registrar – Gen. – CAC (2006) 3 NWLR (pt 968) 489.
He contended that the issue as to whether the plaintiffs borrowed money from the 1st Respondent is not important in this matter, the issue is whether the 1st Respondent transferred ownership of barge to the plaintiffs/appellants or not. He urged the Court to resolve this issue in favour of the appellants and allow the appeal.
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On the part of the 1st Respondent, learned counsel for the 1st respondent submitted that the appellants have not been able to fault the decision of the trial Court. That the basis of the reliefs being claimed by the appellants at the trial Court are criminal in nature. Counsel reproduced the reliefs claimed by the appellants and paragraphs 51, 52, 53, 54 and 57 of the appellants statement of claims and submitted that the appellants claims are erected on fraud and stealing on which the appellants seeks for declaration, injunction and damages.
Learned counsel submitted that although civil cases are proved on balance of probabilities or preponderance of evidence but where criminal allegations are made in civil proceedings, they must be proved beyond reasonable doubt. He cited Ucha v. Elechi (2012) 13 NWLR (pt 1317) 330; Agbi v. Ogbeh (2005) 8 NWLR (pt 926) 40; ANPP v INEC (2010) 13 NWLR (pt 1112) 549 and Section 135 Evidence Act.
That the appellants did not prove their case and that the case of the appellants was rightly dismissed by the learned trial judge.
Learned counsel contended that the reliefs sought by the plaintiffs/appellants are basically
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declaratory and injunctive. A party seeking declaratory reliefs has the duty to satisfy the Court with credible evidence and not by an admission on the part of the defendant that he is entitled to the declaration claimed. He cited Chief (Mrs.) Eunice Akinyele v. Afribank Plc (2005) 17 NWLR (pt 955) 516; Zenith Bank Plc v. Chief Dennis Ekereuwem (2012) 4 NWLR (pt 1290) 207; Prince Adetilewa Sijuade v. Ropo Oyewole (2012) 11 NWLR (pt 1311) 780 for the view.
That the evidence presented by the appellants at the trial Court is most deficient and lacking in merit and cannot support the grant of any declaratory relief much more the allegations are criminal in nature.
He submitted that the case was not decided on the legal status of the company and miscarriage of justice has occasioned.
He submitted that the learned trial judge properly evaluated the evidence before him, his findings and decisions said counsel, were based on admissible evidence. That evaluation of evidence and ascription of probative value are primary functions of a trial Court, who saw, heard and assessed the witness(s). Where a trial Court unquestionably evaluates the evidence and
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justifiably appraises the facts, an appellate Court will not interfere with such findings. He cited Samuel Onu Aja v. Abba Odin (2011) 5 NWLR (pt 1214) 509, Okeowo v. Ag Osun State (2010) 6 NWLR (pt1219) 327, Peter Ebeniche v. Livinus Achi (2010) 2 NWLR (pt 1230) 65 for the point. He urged the Court to hold so and resolve this issue in favour of the respondents and affirm the decision of the trial Court.
For the 2nd respondent, learned counsel for the 2nd respondent submitted that it is the duty of a trial Court to evaluate evidence before it and where findings of facts by a trial Court are adequately supported by the evidence on record, and they were never shown to be perverse nor reached as a result of wrong approach, an appellate Court will not interfere with findings of facts. He citedSa’id v. Ibude (2011) ALL FWLR (pt 571) 1629; Eyo v. Onuoha (2011) ALL FWLR (pt 574) 33; Idowu v. Lala (2009) ALL FWLR (pt 483) 1298 for point. That the trial Court had properly evaluated and appraised the evidence adduced by the parties and came to a finding that is not perverse. That in every civil case, the burden is on the plaintiff to prove his case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
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Learned counsel submitted that the holding of the trial judge, that the 1st defendant purchased the barge in his own name and thus became the owner of the barge on the strength of Exhibits D10 and D11 cannot be faulted in view of the evidence before the Court. He continued that where findings of facts by a trial Court are not shown to be perverse or had occasioned a miscarriage of justice, an appellate Court will not interfere with it. He cited Mohammed v. DHL International Ltd (2001) FWLR (pt 38) 1326. He urged the Court to resolve this issue in his favour.
RESOLUTION
Evaluation connotes weighing the evidence both oral and documentary in the context of the surrounding circumstances of a particular case. A finding of fact involves perception and evaluation of evidence. A trial Court is saddled with primary duty to evaluate relevant and material evidence both oral and documentary after hearing and watching the demeanor of witness called by the parties in any proceeding having regard to their pleadings. Court appraises evidence by constructing an imaginary scale of justice and put the evidence of the parties on the two pan of the scale. It then
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weights them to determine which is heavier in terms of quality but not in quantity of the testimonies. See Odutola v. Mabogunje (2013) 7 NWLR (pt 1356) 522; Ndulue & Anr v. Ojiakor & Ors (2013) LPELR 19889 (SC); Ogundalu v. Macjob (2015) LPELR 24458 (SC), Omisore & Anr v. Aregbesola (2015) LPELR 24803 (SC).
A castigation of a decision on the ground that a judgment is against the weight of evidence connotes that the decision of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the Court either wrongly accepted or that the interference it drew or conclusion reached based on the accepted evidence is unjustifiable. It equally connotes that when the evidence adduced by the complaining party is weighted against the one given by the respondent, the judgment given to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight, the trial Court is enjoined by law to consider whether the evidence is relevant, admissible, credible or more probable than that given by the other party. Where a trial Court failed to discharge that duty, it would be said that
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there had been a miscarriage of his primary duty and the law places this Court in a position with the lower Court in appraisal of documentary evidence. SeeAyuya v. Yonrin (2011) 10 NWLR (pt 1254) 135; Onwuzuraike v. Edozien (2016) 6 NWLR (pt 1508) 215; Ogundalu v. Macjob (Supra) and Ezechukwu v. Onwuka (2016).
The appellants as plaintiffs before the lower Court approached the Court via a writ of summons and tabled declaratory and injunctive reliefs. The reliefs are located at page 11 of the record. For ease of reference and appreciation it is germane to scoop them out thus:
1. A declaration that the plaintiffs are the owners of Barge Rovi-3 which the Defendants stole at the Beach of Marine Roads, Igbokoda sometime in 1990.
2. N1. 5 Billion being special and general damages against the defendants for taking away Barge Rovi – 3 property of the 1st plaintiff without the consent of the plaintiffs at the Marine Road Beach Igbokoda for 15 years.
3. An order compelling the defendants to return the Barge Rovi – 3 to the plaintiffs in good condition.
It is these reliefs that the appellants are supplicating the lower Court to
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pronounce upon and make the necessary declarative and injunctive orders. It can be gleaned from the reliefs the first relief and upon which the other two reliefs rest on, raises issue of crime or rather it is a criminal in nature. This is more so, the appellants in paragraphs 51 and 57 of the statement of claim averred thus:
51. The plaintiffs shall at the hearing of this suit contend that 1st and 2nd defendants conspired fraudulently to steal the barge.
57. The plaintiffs aver that the fraudulent and criminal act of the defendants has paralysed their business for the past 15 years and completely thrown the plaintiffs out of petroleum business.
The allegation of crime, the alleged ‘stealing’ of Barge Rovi – 3 form the fulcrum of the appellants claims as can be seen from the pleadings. Where allegation of crime form the basis of the claim, the requisite standard is that of proof beyond reasonable doubt. Section 135 (1) (2) of the Evidence Act, Cap. E 14 LFN, 2011 provides thus:
“If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond
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reasonable doubt.”
See Arebi v. Gbabijo & Ors (2008) LPELR 3803 (SC); Agi v. PDP & Ors (2016) LPELR 42578 (SC); Ogah v. Ikpeazu (2017) LPELR 42372 (SC); Ilori & Ors v. Ishola & Anr (2018) LPELR 44063 (SC).
The learned trial judge at page 149 of the record held thus: “—stealing has not been proved in this case. The 1st defendant has not even been arrested by the police not to talk of being interviewed by them. Neither of the defendants has been presented for stealing the barge. There is no evidence of stealing adduced in this trial. By virtue of Section 135 of the Evidence Act, if the allegation (sic) is made of the commission of a crime by a party to any proceeding civil or criminal, it must be proved beyond reasonable doubt.’’
In my humble opinion and without mincing words, the alleged stealing of Barge Rovi – 3 is an allegation of crime and forms the basis or foundation of this case. Having regard to the circumstances of this case, the mere evidence of ploy, the only appellants witness and the documents tendered are not sufficient to prove the offence of stealing beyond reasonable doubt. The
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appellants failed to prove the alleged stealing. I so hold.
It is germane to place on record, that tons of documentary evidence formed the corpus of the case. An appraisal of the oral evidence in the case involves credibility of witnesses. It is the lower Court that was in the vantage position to water the demeanour of witnesses and it is their oral testimonies that should asses their credibility.
In an attempt to proof its case, the appellants called a lone witness that is 2nd appellant as PW1 and tendered series of documents. Exhibits P1 – P11 were not in contention between the parties. The appellants claimed that they purchased the barge and that they were the owners of the barge. They claimed that the 1st defendant assisted them to pay N100, 000.00 (One Hundred Thousand Naira Only) as part of the purchase price and were to refund the N100, 000.00 (One Hundred Thousand Naira Only) to the 1st defendant for him to release the barge to them which they did and the barge was released to them. The appellants claimed that it was after the sum had been refunded that the 1st defendant made exhibits P13 and P16. The 1st defendant claimed that he was
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the owner of the barge from onset, he did not transfer the ownership of the barge to the appellants and that exhibit P13 was made for the purpose of NNPC permit which was to be procured. He testified that he bought the barge in his own name at the rate of N50, 000. 00 and tendered exhibits D10, D11, D14 and D15 while the 2nd defendant claimed that he bought the barge from 1st defendant and tendered some documents.
It is not in doubt that the crux of this issue raised for determination before this Court amounts to an attack of the failure of the trial Court to properly evaluate the evidence adduced by the parties at the trial. I have read the 28 pages judgment wrapped between pages 122 – 149 of the record. I discern from it that the lower Court rightly assessed the evidence viva voce and documentary adduced by the respective parties after assigning them to their respective pans in the imaginary scale of justice. The learned trial judge firstly, summarised the evidence professed by the fending parties, analysed it, evaluated and attached the deserved probative weight to the respective pieces of evidence offered by the parties. The judgment credibly
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demonstrates that respondents pan in the imaginary scale of justice hosted more admissible, cogent, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief. SeeNruamah v. Ebuzoeme (2013) 13 NWLR (pt 1372) 58; Eta & Anr v. Dazie (2013) LPELR 20136 (SC); Emeka v. Chuba Ikpeazu & Ors (2017) LPELR 41920 (SC).
The law forbids the Court from interfering with duly evaluated evidence as done in the instant case. It is not the business of an appellate Court to substitute its own views for the view of the trial Court. I so hold.
That is not all, the appellants accused the lower Court of raising issue of legal personality of Chief R. A. Akinjagunla & Sons, suo motu and determined same without inviting the parties to address the Court on it. The appellants premised its allegation of raising issue of legal personality of Chief R. A. Akinjagunla & Sons on the lower Court findings at pages 137 and 140 of the record.
It is trite that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its judgment without hearing both sides. Where a Court raised an issue without giving
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counsel the opportunity to address on it, the Court would be in breach of the principle of fair hearing. See Dickson Ogunseinde Virya Farms Ltd v. Societe Generale Bank Ltd & Ors. (2018) LPELR 43710 (SC); Leaders of Company Ltd & Anr v. Bamaiye (2010) LPELR 1771 (SC); Odedo v. PDP & Ors (2015) LPELR 24738 (SC); Mabamije v. Otto (2016) LPELR 26058 (SC).
Indeed, the lower Court at page 137 of the record held thus:
“R. A. Akinjagunla & Sons Ltd. has not been sued in this case. I do not have power to pronounce a judgment against it in it absence…”
He further at page 140 of the record that:
“I have noted that the parties have freely mixed up the person of Chief R. A. Akinjagunla who is the 1st defendant in this suit with that of R. A. Akinjagunla and Sons Ltd. which is a limited liability company. I am of the view that the two are not the same…”
In my respective view, the lower Court merely distinguished between R. A. Akinjaguna and R. A. Akinjagunla & Sons Ltd. which issue is already before the Court. Therefore, the above findings of the lower Court does not amount to raising of issue of the
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personality suo motu by the lower Court and it has not shown that it occasioned any miscarriage of justice. The decision of the trial Court will be overturn if there has been a substantial miscarriage of justice; there was no miscarriage of justice done to the Appellants in the circumstances of this case. I so hold.
Issue one, is resolved against the Appellants.
ISSUE TWO
Learned counsel for the Appellants submitted that the learned trial judge rightly stated the position of the law that the onus of proof lies on the Plaintiffs to prove their case. But according to counsel, it is not the appropriate principle of law to be applied in this matter. That the appropriate principle of law applicable to this matter is that burden of proof is on the party who alleges the affirmative of the issue. He cited OKECHUKWU VS. NSAH (1967) NWLR 368; OJOH V. KAMALU (2006) VOL. 136 LRCN; ABIODUN VS. ADEHIN (1962) 1 ALL NLR. 500 and MAIDURA V. ALIYU (2000) FWLR (PT. 19) 433 for the view.
Learned counsel argued that the Appellants claimed that they never transferred the ownership of the barge to the 1st Respondent and know nothing about Exhibit D14. That it was
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the 1st Respondent claimed that the barge was transferred to him via Exhibit D14 by the Appellant, therefore, said counsel, it is the 1st Respondent who asserts affirmatively, and the onus is on him to prove his assertion as he who assert must prove his assertion. He cited AG. BAYELSA V. AG. RIVERS (2007) VOL. 144 LREN 357 and ARIN VS. CHIAKA (200) FWLR (PT. 18) 340.
He argued that the 2nd Appellant denied signing Exhibit D14, the learned trial Judge ought not to have attached weight to Exhibit D14, Exhibit 13 and Exhibit 15 more especially that the 2nd Appellant said he did not know anything about Exhibit 15. That the outright denial of the 2nd Appellant that he could not write or sign his name, does not mean that his evidence will be disregarded. That the 2nd Appellant was not confronted with the document the 1st Respondent claimed that the 2nd Appellant had signed.
Learned counsel submitted that the disputed documents is Exhibits D14, D15 and the name of Enock Ayejumi is different from the one on Exhibits D1 and D15. He argued that what the Appellant put before the Court is a crime of stealing and not the issue of forgery. He submitted that the 2nd
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Respondent intentionally decided not to investigate the root of his title to the 2nd Appellant since he knew that he was buying a stolen good. That the learned trial Judge failed to limit himself for the evidence put before him by the parties. He urged the Court to resolve this issue in favour of the Appellants.
Learned counsel for the 1st Respondent submitted that the Appellant can only succeed on the strength of his case. He cited INIAMA V. AKPABIO (2008) 17 NWLR (PT. 1116) 225 and ROTIMI V. FAFORIJI (1999) 6 NWLR (PT. 606) 305. That plaintiff, have the burden to prove the reliefs sought by him. Counsel submitted that the Appellants made heavy weather that Exhibit D14 was not shown to the 2nd Appellant. On this, counsel submitted that the documents were duly pleaded, the Appellant can request to inspect the documents if he needs. The findings and decisions of the learned trial Judge were made based on the admissible evidence before the Court. He urged the Court not to disturb the findings and decision and resolve this issue in favour of the Respondent.
On his part, learned counsel for the 2nd Respondent submitted that the law is that he who asserts
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must prove. He referred to Section 131 of the Evidence Act and the case of OLAIYA V. OLAIYA (2002) FWLR (PT. 109) 1588. He submitted that for the Appellants to succeed, they must show through credible and admissibly evidence that they are the owners of Barge Rovi-3 and that the Respondents did stole the Barge. That it is the Appellants who alleged that the Barge belong to them and the Respondents stole the barge, therefore, the burden to establish same rest on the Appellants. That a party seeking a declarative relief, as in the instant case, he bears the burden of establishing it by credible evidence. He cited DA KABIRI & ANR. VS. HON. JUSTICE LUKE EMEFOR & ORS. (2011) FWLR (PT. 66) 792 and OYINLOYE VS. ESINKIN (1999) 10 NWLR (PT. 624) 550.
The counsel submitted that the Appellants did not challenged nor appeal against the finding of the learned trial Judge on the strength of Exhibits D10 and D11, therefore it is deemed binding. He urged the Court to upheld the finding of the lower Court that the 1st Respondent by reason of Exhibits D10 and D11 become the owner of the Barge. That the 2nd Appellant did not specifically denied making Exhibit D14 in his
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pleading despite specific allegations in the statement of defence filed by the 1st Respondent to the effect that the 2nd Respondent made the document.
Counsel argued that the 2nd Respondent gave evidence that the barge was sold to him by the 1st Respondent, the lower Court, said counsel, was right in preferring the Respondents version to that of the Appellants. That the admission of the 2nd Appellant under cross examination that he signed the affidavit filed by his counsel, contradicts his averments and evidence that he has never signed any document and that he did not sign Exhibit D14. That the signature in Exhibit D14, affidavit filed by the Appellants and other documents are similar. He referred to pages 97, 98, 99 – 106 of the record. He urged the Court to so hold and resolve this issue in favour of the Respondents and dismiss the appeal.
RESOLUTION
Whether or not the Plaintiffs/Appellants at any time returned the Barge to the 1st Defendant, in other word whether the Plaintiffs/Appellants are party to Exhibit D14.
Exhibit D14 was tendered in evidence by the 1st Defendant in proof of the facts that the Plaintiffs’ promised to
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return the barge to the 1st Defendant’s company and the 1st Defendant promised to return the Plaintiffs’ title documents. Exhibit 15 is an acknowledgment of the receipt of the title documents by the Plaintiffs. Exhibit D14 was pleaded by the 1st Respondent in his statement of defence. Learned counsel for the Appellants argued that the Appellants know nothing about the document. That the document (Exhibit D14) was not shown to the 2nd Appellant who he testified before the Court and that he did not signed the document.
It is trite that pleadings are meant to be specific and document sought to be relied upon must be specifically pleaded. SeeAGBOOLA V. UBA PLC. & ORS. (2011) LPELR 9353 (SC) and ANYAFULU & ORS V. MEKA & ORS. (2014) LPELR 22336 (SC). Pleading constitutes notice of issues the parties intend to canvass at the hearing, a reference to a document, brings in to the pleading the whole contents. A party is only required to plead the fact or effect of the document on the case. See AGWUNEDU & ORS VS. ONWUMERE (1994) LPELR 259 (SC); MOBIL OIL PLC. V. IAL 36 INC. (2000) 6 NWLR (PT. 659) 46 and 7UP BOTTLING CO. V. UGWU & ORS.
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(2017) LPELR 42685 (SC). Exhibit D14 was part of the 1st Respondent pleadings, the Appellants would have challenged the document (Exhibit D14), if any on the issues of making the document by the 2nd Appellant at the trial but not that the document was not shown to the 2nd Appellant or that he was not confronted with the document. The pleading is not ambiguous, the Appellants cannot be heard to argue that the document was not shown to the 2nd Appellant at the trial. I so hold.
On another breath, the 2nd Appellant argued that he does not know how to write not to talk of having a signature. He denied signing the document-Exhibit D14.
I have browsed through the proceedings during the period the Appellants conducted its case, sparing from pages 72-81 and continued at 94-97 of the record. The 2nd Appellant during cross examination at page 97 testified thus:
“…I do not know how to write at all not to talk of my having (sic) a signature. I cannot write my name…”
He furthered at page 98 of the record thus:
“…I have never signed or written my name before…”
When the witness was confronted
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he had signed and filed in Court. He answered as follows:
“I am aware that my lawyer filed motions in this suit in my name, I am now shown a motion filed in Court and I say that I signed as a deponent of the affidavit…
I agree that I was signing documents when I was processing my permit/lenience from N.N.P.C. The signature on Exhibit P5A is not mine. I cannot sign as beautifully as that…”
In resolving this issue, the learned trial Judge compared the specimen signature of the 2nd Appellant with the undisputed signature on Exhibits D1 and P5A and other documents before the Court and come to the conclusion that there is similarity between them. The Appellant cannot deny the purported signature on Exhibit D14. A Court has the power to compare the disputed signature with any undisputed signature or germane signature. See DAGGASH V. BULAMA (2004) ALL NWLR (PT. 212) 1666; EZECHUKWU V. ONWUKA (2005) 2 NWLR (PT. 963) 151 and TOMTEC NIG. LTD. V FHA (2009) LPELR 3256 (SC).
I have gone through the Exhibits tendered, there equally exist before the Court, the 2nd Appellant signature on Exhibit D15 which accompanied Exhibit D14 and come to the
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conclusion that the finding and conclusion of the learned trial Judge on the relevant facts and issues cannot be faulted.
Issue two is resolved against the Appellants.
On the whole, having resolved the two issues in this appeal against the Appellants, its fortune is plain, it is devoid of any merit and deserves the penalty of dismissal. Accordingly, I dismiss the appeal. I affirm the decision of the lower Court delivered on 8th July, 2010, wherein it dismissed the Appellants claims.
I make no order as to costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgement, in this appeal, just delivered by my learned Brother, Ridwan M. Abdullahi, JCA.
I agree that the appeal is bereft of any merits and equally dismiss it. I abide by the consequential orders made in the said leading judgment, including that of costs.
PATRICIA AJUMA MAHMOUD, J.C.A.: Having read in draft the lead judgment of my learned brother, Ridwan M. Abdullahi, JCA, I agree with his reasoning and conclusion which I hereby adopt in dismissing the appeal. I affirm the decision of the trial Court. I abide by the consequential
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order not to award cost.
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Appearances:
Parties served through their counsel by phone call for the hearing of the appeal but failed to appear without excusing absence
Briefs deemed argued by the Court For Appellant(s)
Parties served through their counsel by phone call for the hearing of the appeal but failed to appear without excusing absence
Briefs deemed argued by the Court For Respondent(s)
