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ALH. HALI HAMIDU & ANOR v. KADUNA ELECTRICITY DISTRIBUTION PLC & ANOR (2019)

ALH. HALI HAMIDU & ANOR v. KADUNA ELECTRICITY DISTRIBUTION PLC & ANOR

(2019)LCN/13674(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of July, 2019

CA/S/145/2018

 

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. ALH. HALI HAMIDU
2. MIYETTI TRADING COMPANY LTD Appellant(s)

AND

1. KADUNA ELECTRICITY DISTRIBUTION PLC
2. ALH. GARBA HARUNA
(Managing Director of Kaduna Electricity Company) Respondent(s)

RATIO

THE SETTLED PRINCIPLE OF LAW IS THAT THE ADDRESS OF A COUNSEL SHOULD NOT TAKE PLACE OF PLEADINGS OR EVIDENCE

The law is now well settled that address of counsel no matter how brilliant, how eloquent, how erudite or articulate, cannot and should not take the place of pleadings or evidence. The address of counsel which is only intended to assist the Court cannot be in a vacuum or suspended in the air, but must be placed on Pleadings and evidence to shore it up. It cannot be a substitute for pleadings or evidence. See BFI GROUP CORP. vs. BUREAU OF PUBLC ENTERPRISES (2012) 18 NWLR (Pt. 1332) 209 at 244 B ? C, where Fabiyi, JSC confronted with a similar situation had this to say, inter alia.
?It (address of counsel) is not evidence and no fine speech in an address can make up for lack of evidence to prove or establish a fact or the disprove and demolish a point in issue.?
In other words, address of counsel not based on pleadings and evidence is inconsequential, and goes to no issue. It has no probative value and not worth a dine in the scale of evidence for consideration by the Court. PER WAMBAI, J.C.A.

DEFINITION OF THE TERMS “OATH AND “SWEAR”

In simple terms, an oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. See Black?s law dictionary 6th edition page 1071. In a more formal sense, an Oath is a formal and serious promise to tell the truth or to do something; a solemn, usually formal calling upon God or a god to witness the truth of what one says or to witness that one sincerely intends to do what one says; a solemn attestation of the truth or inviolability of one?s words. See Merriam Webster?s Dictionary.
A swear is also a solemn promise to make good a future cause of action or affirming that a statement previously made or to be made is true. Thus, to swear means to state something very strongly and sincerely; to promise very strongly and sincerely to do or not to do something: to assert as true or promise under Oath. It is to make solemn declaration invoking a deity or a sacred person or thing in confirmation of and witness to the honesty or truth of such a declaration.
As can be discerned from the afore stated definition of the two words, the word ?swear? is a verb used to describe the taking of an Oath: to the making of a solemn vow or promise. Thus to swear is really to make an Oath which in legal settings, is to make an Oath of honesty. In this wise, in my humble view, the two words can be used interchangeably one as the noun and the other as the verb. PER WAMBAI, J.C.A.

WHETHER OR NOT ORAL EVIDENCE CAN REPLACE DOCUMENTARY EVIDENCE

Let me hasten to reiterate the settled position of law that oral evidence cannot supercede, replace, dislodge or contradict documentary evidence. Documentary evidence which by its nature of being permanent in form is more reliable than oral evidence, is the best evidence and proof of the contents of the document. See A. G. Bendel State vs. U.B.A Ltd. (1986) 4 NWLR (Pt. 337) 547, Essien vs. Etukudo (2008) LPELR 3625 (CA). This important feature of documentary evidence makes it the hanger upon which to assess or test oral evidence and a party whose case is supported by valid and relevant documentary evidence has more credibility than the party who does not possess documentary evidence in support of his case where documentary evidence is vital to prove the case. SeeLion Building vs. Shadipe (1976) 12 SC 153.
It follows, as is the settled position of law, that oral evidence cannot be allowed to discredit, or contradict the contents of documentary evidence except in a few cases exempted by law, such as fraud. See Fashanu vs. Adekoya (1974) 6 SC 83,Ogbeide vs. Osifo (2007) All FWLR (Pt. 365) 548, CDC (Nig.) Ltd. vs. SCOA (Nig.) Ltd. (2007) 6 NWLR (Pt. 1030) 360. This is so because documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable than words from the vocal cord of man as they are neither transient nor generally subject to distortion and misinterpretation but remain permanent and indelible through the ages. PER WAMBAI, J.C.A.

WHETHER OR  NOT IT IS THE PRIMARY DUTY F THE TRIAL COURT TO EVAULATE EVIDENCE OF WITNESSES AND ASCRIBE PROBATIVE VALUE THERETO

Now, the question of evaluation of evidence which the Appellant? grudge throws up for consideration, it must always be born in mind and remembered by an Appellate Court, that it is the duty of the trial Court which saw, heard and observed the demeanour of the witnesses as they testified, to evaluate the evidence received, ascribe the appropriate probative value to same and come up with a decision based on the received and assessed evidence. See Alelu vs. Eze (2015) 13 NWLR (Pt. 1475) 74 at 117. Where the trial Court has performed this duty, it is not the business of an Appellate Court to interfere with its findings or to attempt to re-evaluate the same evidence. The Appellate Court is loath to do so except where (1) the trial Court failed to make proper use of its opportunity or advantage, and thereby arrived at a perverse decision or (2) where the trial Court fails to make findings of fact on a material or vital issue(s) canvassed by parties before it in its evaluation of the evidence or (3) where the trial Court gives an unfair treatment to the evidence of the parties before it. See Nwachukwu vs. Egbochu (1990) 3 NWLR (Pt. 136) 435.
It is only when the trial Court abdicates this sacred duty and miscarriage of justice occurs that the Appellate Court can embark on re-evaluation or evaluation of evidence to right the wrong, more so where the evaluation essentially involves documentary evidence. In such a situation as the instant appeal, where the trial Judge failed to evaluate the documentary evidence on record, this Court is in as good a position as the trial Court to evaluate the evidence and interfere with the findings of the trial Court. See Abisi vs. Ekwealor (1993) 6 NWLR (Pt. 302) 643, Malle vs. Abubakar (2007) All FWLR (Pt. 360) 1569. PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This Appeal arose from the decision of Abbas Ahman J., of the Kebbi State High Court delivered on the 30th July, 2018 which dismissed the Appellants claims and granted the Respondents? counter-claim.

The facts leading up to the institution of this suit at the lower Court giving rise to this appeal are that sometime in 2013, the 2nd Appellant participated in the auction-sale of the defunct Power Holding Company of Nigeria?s (PHCN?s) non-core properties conducted by the Nigerian Electricity Liability Management Ltd. (NELCOM) officiated by the Bureau of Public Enterprises (B.P.E.) at which the 2nd Appellant purchased the properties known and described as undeveloped plot of land at Garden Road, Old Power Station, Birnin-Kebbi, Kebbi State as well as the property known and described as Part of the Land/Property at Birnin Kebbi Power Station, along Garden Road, Birnin Kebbi respectively. Upon purchase of the properties and the payment to the Nigeria Electricity Liability Management Ltd. (NELCOM), the Respondents wrote letters of 24th November, 2014 and 25th

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November, 2014, Exhibits 1 and 2, requesting the Ministry of Lands, Housing and Urban Development of Kebbi State to process and issue Certificates of Occupancy in the name of the 2nd Appellant having purchased and completed payment for the properties. Thereafter, the 2nd Appellant took and remained in active possession of the properties unperturbed since 2013 until sometimes in December 2014 when it sold the properties to the 1st Appellant to whom it issued two sale receipts, one in the sum of ?2,500,000 for the property known as Part of the Land at Birnin Kebbi Power Station, along Garden Road, Birnin Kebbi; and the other in the sum of ?8,000,000 in respect of the property known as undeveloped Land at Garden Road, Old Power Station, Birnin Kebbi.
?
While awaiting the completion of the transfer documents and the Executive Governor’s consent to the Sale and transfer to enable him apply for a further transfer to his name, the 1st Appellant took possession of the landed properties from the 2nd Appellant and erected fences around the two landed properties. He fixed a gate to one of the properties with the intention to put same on the other one but to his

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utmost dismay, the Respondents broke the fences and denied him access to the properties to enable him make further developments. This necessitated the institution of the suit at the Lower Court claiming the relief in page 18 of the amended statement of claim.

On the part of the Respondents, the 1st Appellant has never been the beneficial or otherwise owner of the properties in question, but the lands in dispute have been part and parcel of the single property inherited by the 1st Respondent from the defendant PHCN as a result of privatization of the PHCN from the moment the 1st Respondent transitioned from Electricity Corporation of Nigeria (E.C.N) to National Electricity Power Authority (NEPA) and Power Holding Company of Nigeria (PHCN) and finally to Kaduna Electricity Distribution Plc, which property has never been sold or partitioned to anybody. That they have maintained the unity of the landed property covered by a sole document of title, the right of occupancy, dated 14th October, 1972 and signed on the 17th January, 1973 which was issued to the then Electricity Corporation of Nigeria (E.C.N) by the Ministry of Works and Survey Sokoto, which parcels

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of land have been in possession of the 1st Respondent since it came into existence in 2005, while the alleged sale of the land to the 2nd Appellant took place between 2013 and 2014. They contended that they never knew of the purported sale until on or about 13th April, 2015 when they discovered the unlawful erection of block fence on part of the premises where the communication mast belonging to the 1st Respondent stands. This act of trespass led them to inscribe on the building ?Remove by kaduna Electric? to warn the intruder to remove the illegal structure. When later the Respondents discovered the alleged auction sale by NELMCO to the 2nd Appellant, they wrote a letter of complaint to the Director General of Bureau of Public Enterprises complaining of the improper sale of the assets which was not replied to the letter until 16th September, 2015.

At the trial Court, parties adopted their pleadings and the matter went to trial. Both parties presented their witnesses and at the conclusion of the trial and written addresses of the counsel, the Learned Trial Judge delivered judgment against the Appellants and in favour of the Respondents.<br< p=””

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The Appellants were displeased with the dismissal of their case and approached this Court vide a notice of appeal filed on the 3/8/2018 predicated on the following grounds of appeal, shun their particulars, to wit;
GROUND ONE:
The learned trial Judge erred in law when he held that in my view the auction conducted was not in compliance with the Auctioneers Law of Kebbi State.
GROUND TWO:
The learned trial Judge misdirected himself in law when he held that civil cases are proved on probabilities of evidence and that in my view, due to the uncontroverted testimony of the witness to the counterclaimant, I am of the view that he has proved his counterclaim.
GROUND THREE:
The learned trial Judge erred in law when he patently failed to many (sic) judicial Pronouncements on the Appellants claims before the lower Court.
GROUND FOUR:
The learned trial Judge erred in law when he refused to make any pronouncement on the issue of the jurisdiction of the lower Court to pronounce on the propriety of the privatization exercise through which the Respondents alleged by (sic) derived their title.
GROUND FIVE:
The Judgment of

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learned trial Judge is against the weight of Evidence.

From the grounds of appeal, learned A. D. Ahmed, Esq., who settled the appellant?s brief of argument filed on 3/11/2018 formulated the following issues for determination; namely
1. Whether the learned trial judge was right in pronouncing on the propriety of the auction sale when no issue was joined on same and there was no such claim from the Respondents’ counterclaim (Ground one)
2. Whether Exhibits 1, 2, 7, 8, 9a, 9b, 10, 11& 12 if accorded their probative values by the trial Court can support the judgment of the lower Court against the Appellants` claims (Ground 3, 4 & 5)
3. Whether the Appellant`s depositions on oath are competent to establish their claims and the failure to pronounce on them was fatal and infringed on their fundamental right of fair hearing of the Appellants. (Ground Two)

This appeal was heard as a non-contested appeal, the respondents having not filed any brief of argument or any application for enlargement of time to do so nor was the respondent?s counsel present in Court on the date of hearing despite the service of hearing notice on

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him. That notwithstanding, the success of the appeal depends on the strength of the appellants? case and not on the absence of the respondent?s brief. It will swim or sink on its own legal value and not on the absence of the Respondent?s brief of argument. See Echere Vs Ezirike (2006) 12 NWLR (Pt 994) 3861, Akanbi Vs Alatede (2006) FWLR (Pt 11) 1928.

This appeal will be determined on a lone issue culled from the appellants? 3 issues, to wit:
Whether by the pleadings and evidence before the lower Court, if properly evaluated and ascribed their probative value, the lower Court was right in pronouncing the auction sale invalid, the appellant?s deposition incompetent and dismissing the appellant?s claims while granting the respondents counter claim.

In arguing his first issue which borders on the propriety of the pronouncement by the learned trial judge on the validity or otherwise of the auction sale conducted by NELMCO and BPE, learned counsel picked hole with the finding of the learned trial judge on the issue of irregularities of the auction sale, that the auction sale was not conducted in accordance with the

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provisions of the Auctioneers Law of Kebbi State, issues not having been joined on that fact at pleadings nor was any evidence adduced or elicited to that effect. For this reason, learned counsel argued that the learned trial judge lacks the vires to award a favourable pronouncement to the Respondents against the Appellants on the propriety of the auction sale when no such claim was demanded by the Respondents since the Court is not a charitable institution capable of awarding to a claimant what he did not claim. The case of Nyako v. Adamawa State House of Assembly (2016) 12 MJSC page 92 at 114 was cited in support.

Predicated on the foregoing, it was further contended that such a Pronouncement on an issue not supported by pleadings or evidence nor brought to the Notice of the parties for agitation in the conventional adversarial procedure, is outside the judge?s duty of deciding the case between the parties and is tantamount to engaging in a cloistered justice not being his duty to sit down ex-curiae and attempt to sort out the case of any party, citing in support the case of AG Leventis PLC v. Akpu (2007) 001-9. MJSC Page 134 and APGA v. AI-makura &. Ors

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(2016) 1 MJSC, 69 at 90.

Another area of complaint is the lower Court?s preference of DW1?s evidence over and above the documentary evidence duly pleaded and tendered by the appellant without any objection by the respondent which, he argued, the Court is bound to accord the requisite force of evidence as against the oral evidence of DW1 same having not been discredited in cross-examination to warrant the trial judge not to attach weight to same. The cases of Chitra K and W Man Co. Ltd vs. Akingbade (2016) 4-5 MJSC, page 61 at 70 and Agbareh vs. Mimra (2008)2 MJSC, Page 34 at 155 were relied upon. These documentary evidence, Exhibits 1, 2, 3, 4, 7, 8, 9a and 9b which according to him impacted positively on the appellant?s case were not discredited in any form nor was there any other contrary documentary evidence tendered by the Respondents to outweigh the contents of these exhibits. Moreover, Exhibits 1, 2 and 3 which emanated from the respondents and whose signature and contents were not contested by the Respondents either through the DW1 in chief or through the PW1 under cross-examination learned counsel contended, ought to

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have been accorded their requisite force of documentary evidence.

It was counsel?s further contention that the failure by the lower Court to evaluate and accord the necessary weight to the exhibits and appropriately pronounce on them as against the Respondent?s oral evidence substantially affected the justice of the Appellant?s case and is fatal to the Respondent?s case.

On the other hand, Exhibit 10, (sic) (it should be Exhibit 11), the only exhibit tendered by the Respondent and which is a public document it was contended, was erroneously admitted in evidence same having not been certified by a Public Officer from the Ministry of Land, Housing and Urban Development but by the Respondent?s own company secretary contrary to Sections 102, 104 and 106 of the Evidence Act, urging us to set aside the irregular certification and the said Exhibit 11 from the record, citing in support the case of ABUBAKAR v. CHUKS (2008) 2 MJSC 190 at 217.

Similarly, it was contended that Exhibit 12 pleaded by the Respondents and deliberately avoided by DW1 but tendered through him during cross-examination by the Appellant, has no

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probative value and does not support paragraph 15 of the Respondent?s Joint Statement of Defence or Counter-Claim but rather strengthens the Appellant?s case, DW1 having admitted in cross-examination that the property which is the subject of this appeal is not part of the properties whose auction sale the Respondent?s complain against. The case of MILITARY GOVERNMENT OF ONDO STATE V. KOLAWOLE  (2008) 101 8 MJSC 203, was cited to buttress the point.

On the witness deposition of PW1 whose issue of incompetence was raised in the Respondents? final Written Address and which the lower Court held is incompetent for non-compliance with Section 13 of the Oaths Act without appraising the Appellant?s argument hinged on Sections 4(2), and 6(c) of the Oaths Act and Section 14(3) of the Evidence Act, it was submitted that the learned trial judge grossly misapplied the said provision of Section 13 and failed not only to appreciate that non compliance is a mere irregularity which does not render same inadmissible by virtue of Section 4(2), 6(c), but also failed to draw a distinction between a defect in an ordinary affidavit and a written

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deposition of witness on oath which the deponent adopts and further affirms in open Court, citing the case of UDUMA v. ARUNSI (2012) 7 NWLR (Pt. 1298) 55, 9 ? 7 to the effect that any defect or irregularity in original oath can be cured by the adoption of the statement and another oath in open Court. Moreover, the Respondent?s oath also suffers from the same defect but the learned trial judge affirmed its validity.

In conclusion, learned counsel maintained that the Appellant?s witness deposition on oath through PW1 which he adopted in open Court on oath is competent and the lower Court has no jurisdiction to pronounce on the propriety of the auction sale.

Now, in dismissing the Appellants? claims, the learned trial judge held inter alia:
?In my view the purported auction sale of the land in dispute was not carried out in compliance with Kebbi State Auctioneers? Law (supra) a fact which has not been proved by the claimants to me. There was no valid auction sale, … therefore, issue one is resolved in favour of the defendants.?

His basis for such a finding and conclusion as stated by

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him at page 195 of the record is that:
?the defendants from their pleadings raised an issue as to how the purported sale was if any carried out in respect of land in dispute?. that the purported auction was null and void and of no effect as it contravenes the provision of Section 19 of the Auctioneers? Law of Kebbi State (1993) Cap 20 Law of Kebbi State?

Reference was made to paragraph 9 of the Joint Statement of Defence as the pleadings to that effect. The said paragraph 9 avers as follows:
?9. That the defendant plead further that the purported auction/sale of the land in dispute to the claimant (if any) was done by NELCOM and/or BPE in gross violation of all the privatization rules/laws which provides that no non-core assets, of the 1st defendant (as formally constituted) and by extension of the defunct PHCN shall be auctioned/sold until after the transaction period, the completion of all privatization processes and actual takeover by the new investors (i.e. 1st defendant) but not before the completion and taking over.?

It is very clear that what the reproduced paragraph 9 of the Joint

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Statement of Defence complains of is a violation of the Privatization Law/Rule which prohibits the sale of any none-core assets of the 1st Respondent before the completion of the transaction period and actual takeover by the new investors. The said averment cannot by any stretch of imagination be said to have raised the issue of the auction sale being conducted in contravention of Section 19 of the Kebbi State Auctioneers? Laws (1993) Cap 20, Laws of Kebbi State. The two requirements are diametrically different and independent of the other. Indeed, it will be far-fetched to construe the said paragraph 9 as pleading a contravention of Section 19 of the Auctioneers? Law of Kebbi State. While paragraph 9 complains of the auction sale conducted by the Nigeria Electricity Liability Management Ltd. (NELCOM) and the Bureau of Public Enterprises (BPE) before the completion of all privatization processes and actual takeover by the new investors contrary to the privatization and Commercialization Law, Section 19 of the Kebbi State Auctioneers? Law requires that there shall be at least 7 days public notice of the sale before the auction of any landed

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property can lawfully take place. Paragraph 9 pertains to the appropriate time by the privatization law, to sell the none ?core assets of the first respondent and Section 19 of the Auctioneers Law of Kebbi State pertains to the procedure for sale of landed property by auction.

Put differently paragraph 9 complains of contravention of the privatization Law of the Federal Government for selling the 1st Respondents none-core assets before the completion of the actual takeover by the new investors. On the other hand, a contravention of Section 19 of the kebbi State Auctioneers Law will occur where landed property is sold by auction without the mandatory 7 days public Notice prior to the date of the auction. There is therefore in the entire length and breadth of the pleadings and evidence no averment or evidence to support the learned trial judge?s finding and conclusion. Perhaps the only process that supports that conclusion and which does not avail the learned trial judge is the Respondent?s final written address wherein the issue of violation of Section 19 of the Kebbi State Auctioneers? Law was raised for the 1st time without any

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pleadings or evidence to support the submission. The law is now well settled that address of counsel no matter how brilliant, how eloquent, how erudite or articulate, cannot and should not take the place of pleadings or evidence. The address of counsel which is only intended to assist the Court cannot be in a vacuum or suspended in the air, but must be placed on Pleadings and evidence to shore it up. It cannot be a substitute for pleadings or evidence. See BFI GROUP CORP. vs. BUREAU OF PUBLC ENTERPRISES (2012) 18 NWLR (Pt. 1332) 209 at 244 B ? C, where Fabiyi, JSC confronted with a similar situation had this to say, inter alia.
?It (address of counsel) is not evidence and no fine speech in an address can make up for lack of evidence to prove or establish a fact or the disprove and demolish a point in issue.?
In other words, address of counsel not based on pleadings and evidence is inconsequential, and goes to no issue. It has no probative value and not worth a dine in the scale of evidence for consideration by the Court.
?
There being no pleadings or evidence that the auction sale conducted by NELCOM and /or BPE in which the 2nd

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Appellant participated and bought the properties in question, I cannot but be swayed by the submission of the learned Appellant?s counsel that the learned trial Judge went outside his duty and on a frolic of his own when he held that the auction sale was invalid on account of violation of Section 19 of the Kebbi State Auctioneers Law. That finding and conclusion cannot stand, and it is hereby set aside.

On the Appellant?s deposition on Oath in support of the amended statement of claim which the learned trial judge held was incompetent for violating Section 13 of the Oaths Act 2004, the said Section 13 requires an Oath to be in the form prescribed in the First Schedule to the Act. The section provides:
?It shall be lawful for any commissioner for Oaths, Notary public or any other person authorized by the Act to administer Oaths, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows:
I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration consciously believing

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same (the contents) to be true and by virtue of the provisions of the Oaths Acts.?
It is clear from the reproduced provision that for an Oath to be valid or conform with Section 13 of the Oaths Act, 2004 the declaration must be made ?solemnly?, ?sincerely?, ?conscientiously? and in the believe that the contents are true and in accordance with the Oaths Act. Any written statement on Oath in which these key words or phrases are missing, cannot strictly be said to be in conformity with Section 13 of the Oaths Act. See O. ORLANA IBE & ANOR v. NKIRU UGOCHUKWU & 41 ORS (2010) ALL FWLR (Pt. 504) 1550, 1592 ? 1593.
The kernel of this point is whether the Appellant?s statement on Oath filed at the Registry of the Lower Court which the learned trial Judge held is incompetent, complies with the format set out in the 1st Schedule to the Oaths Act.
Paragraph 18 of the 1st Appellant?s amended written statement on Oath reads as follows:
?That I make this statement on Oath in good faith believing its contents to be true and correct and in accordance with the Oaths Act.?

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The above paragraph though not ?ipsisma verba? of the format in the first schedule, is consistent with the provision and I dare say, with the intendment and general principles of the 1st schedule, the omission of the words ?I swear? notwithstanding. I say so because the words ?I make this Oath? in paragraph 18 is synonyms with the words ?I swear? in the first schedule.
In simple terms, an oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. See Black?s law dictionary 6th edition page 1071. In a more formal sense, an Oath is a formal and serious promise to tell the truth or to do something; a solemn, usually formal calling upon God or a god to witness the truth of what one says or to witness that one sincerely intends to do what one says; a solemn attestation of the truth or inviolability of one?s words. See Merriam Webster?s Dictionary.
A swear is also a solemn promise to make good a future cause of action or affirming that a statement previously made or to be made is true. Thus, to swear means to state

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something very strongly and sincerely; to promise very strongly and sincerely to do or not to do something: to assert as true or promise under Oath. It is to make solemn declaration invoking a deity or a sacred person or thing in confirmation of and witness to the honesty or truth of such a declaration.
As can be discerned from the afore stated definition of the two words, the word ?swear? is a verb used to describe the taking of an Oath: to the making of a solemn vow or promise. Thus to swear is really to make an Oath which in legal settings, is to make an Oath of honesty. In this wise, in my humble view, the two words can be used interchangeably one as the noun and the other as the verb. To this extent the words ?I make this Oath used in paragraph 18 of the Appellant?s amended statement on Oath made before a commissioner for oaths has the same meaning and effect with the words ?I swear used in the 1st Schedule to the Act.
Furthermore, the words ?good faith? used in paragraph 18 of the Appellant?s amended statement on Oath denote ?honesty? and

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?sincerity? and as stated therein, ?believing the contents to be true and correct and in accordance with the Oaths Act.”
It is therefore my further view as fortified by the decision in the case of A.G.F vs. Bayawo (2000) 7 NWLR (Pt. 665) 301 that an affidavit or a statement on Oath ? as in this instant appeal which ends with the words or declaration that it was deposed to in accordance with the Oaths Act/Law is not incompetent.
Thus, while, I hold the view that failure to comply with the requirement of Section 13 of the Oaths Act renders an affidavit or witness deposition defective and incompetent, methinks, there is compliance with Section 13 of the Oaths Act where as in this case the statement made on Oath, paragraph 18 thereof, contains the words that ?I make this statement on Oath in good faith believing its contents to be true and correct, and in accordance with the Oaths Act.? (underlining for emphasis).
The whole essence of Section 13 is to ensure that the deponent is solemn and sincere in making the declaration and in the firm belief that the content of the deposition are true and correct in

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accordance with the Oaths Act. This has been achieved by paragraph 18 of the Appellant’s deposition on Oath.
The case of GTB PLC v. ABIODUN (2017) LPELR 42551 (CA) cited by the Respondent?s counsel in his final written address at the lower Court where this Court held that substantial compliance is not enough and any statement on Oath which does not bear the 1st schedule to Section 13 of the Oaths Act cannot be a written statement on Oath, is distinguishable from the facts of this case. In that appeal, in contradistinction to paragraph 18 of the Appellant?s written statement on Oath herein which goes further to state that the deponent believes the contents of the statement to be correct and true and in accordance with the Oaths Act, paragraph 35 of the written statement on Oath of the Respondents therein only contains the words That ?I wear to this Affidavit in truth and in good faith.?
On this premise, I hold the view that the deposition in paragraph 18 of the Appellant?s amended statement on Oath sufficiently satisfies the requirement of Section 13 of the Oaths Act, and to this extent I am unable to lend my support to

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the learned trial Judge?s finding and conclusion leading to his complete rejection and disregard of the Appellant?s Amended Written Statement on Oath. I therefore find favour with the position of the learned Appellant?s counsel that the learned trial judge was wrong in holding that the Appellant?s amended written statement on Oath is incompetent and in discountenancing same. I shall consider the said statement on Oath in this judgment.

I now turn to the centerpiece of the Appellant?s complaint in this appeal which is that the learned trial judge failed to properly evaluate the documentary evidence before the Court but rather chose to prefer the oral evidence of DW1 over and above the documentary evidence tendered by the Appellants. Let me hasten to reiterate the settled position of law that oral evidence cannot supercede, replace, dislodge or contradict documentary evidence. Documentary evidence which by its nature of being permanent in form is more reliable than oral evidence, is the best evidence and proof of the contents of the document. See A. G. Bendel State vs. U.B.A Ltd. (1986) 4 NWLR (Pt. 337) 547, Essien vs. Etukudo

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(2008) LPELR 3625 (CA). This important feature of documentary evidence makes it the hanger upon which to assess or test oral evidence and a party whose case is supported by valid and relevant documentary evidence has more credibility than the party who does not possess documentary evidence in support of his case where documentary evidence is vital to prove the case. SeeLion Building vs. Shadipe (1976) 12 SC 153.
It follows, as is the settled position of law, that oral evidence cannot be allowed to discredit, or contradict the contents of documentary evidence except in a few cases exempted by law, such as fraud. See Fashanu vs. Adekoya (1974) 6 SC 83,Ogbeide vs. Osifo (2007) All FWLR (Pt. 365) 548, CDC (Nig.) Ltd. vs. SCOA (Nig.) Ltd. (2007) 6 NWLR (Pt. 1030) 360. This is so because documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable than words from the vocal cord of man as they are neither transient nor generally subject to distortion and misinterpretation but remain permanent and indelible through the ages.
?
Now, the question of evaluation of evidence which the Appellant?s

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grudge throws up for consideration, it must always be born in mind and remembered by an Appellate Court, that it is the duty of the trial Court which saw, heard and observed the demeanour of the witnesses as they testified, to evaluate the evidence received, ascribe the appropriate probative value to same and come up with a decision based on the received and assessed evidence. See Alelu vs. Eze (2015) 13 NWLR (Pt. 1475) 74 at 117. Where the trial Court has performed this duty, it is not the business of an Appellate Court to interfere with its findings or to attempt to re-evaluate the same evidence. The Appellate Court is loath to do so except where (1) the trial Court failed to make proper use of its opportunity or advantage, and thereby arrived at a perverse decision or (2) where the trial Court fails to make findings of fact on a material or vital issue(s) canvassed by parties before it in its evaluation of the evidence or (3) where the trial Court gives an unfair treatment to the evidence of the parties before it. See Nwachukwu vs. Egbochu (1990) 3 NWLR (Pt. 136) 435.
It is only when the trial Court abdicates this sacred duty and miscarriage of justice

25

occurs that the Appellate Court can embark on re-evaluation or evaluation of evidence to right the wrong, more so where the evaluation essentially involves documentary evidence. In such a situation as the instant appeal, where the trial Judge failed to evaluate the documentary evidence on record, this Court is in as good a position as the trial Court to evaluate the evidence and interfere with the findings of the trial Court. See Abisi vs. Ekwealor (1993) 6 NWLR (Pt. 302) 643, Malle vs. Abubakar (2007) All FWLR (Pt. 360) 1569.

In support of their claim, the Appellants tendered in evidence without any objection, through PW1, Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9(a), 9(b), 10 and through DW1 in cross-examination, Exhibit 12. Exhibits 1? 10 were not discredited in cross-examination. Exhibits 1 and 2 dated 24th November, 2014 and 28th November, 2014 respectively were written by the Respondents. Their contents are almost identical. Exhibit I written by the 1st Respondent, the (PHCN) Kaduna Electricity Distribution Company to the Commissioner of Lands, Housing and Urban Development, Kebbi State reads:
?Kaduna Electricity Distribution Company<br< p=””

</br<

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HEAD OFFICE:
Electricity House,
1 -2 Ahmadu Bello Way,
P.M.B 2268
Kaduna, Kaduna State.
Email: info@phcnkede.com
Ref: PHCN/KEDC/KEBBI/0252/32/061/2014
The Commissioner of Lands, Housing & Urban Development,
Gwadan Gwaji Secretariat Complex,
Birnin Kebbi,
Kebbi State.
RE: DISPOSAL OF PHCN NON-CORE PROPERTIES, UNDEVELOPED LAND ON GARDEN ROAD, OLD POWER STATION, BIRNIN KEBBI TO MIYETTI TRADING COMPANY LTD
We wish to request for issuance of Right of Occupancy in respect of the above named property to MESSRS MIYETTI TRADING COMPANY LTD who purchased the property in the recent sold properties by Nigeria Electricity Liability Management Limited (NELCOM).
Kindly process and issue right of occupancy to this company as they have completed payments in this regards.
While thanking you for your kind assistance, please accept the assurance of our warm regards.?

Exhibit 2 dated 28/11/2014 is a follow up to Exhibit 1. Instructively, both Exhibits 1 and 2 were written by the Respondents to the Commissioner of Lands, Housing and Urban Development requesting the Ministry to issue to the 2nd

27

Appellant the Certificate of Occupancy in respect of the properties, and to release the properties in question to the 2nd Appellant. Unequivocally, Exhibits 1 and 2 say it all, that the NELMCO had sold the properties in question to the 2nd Appellant who had effected full payment for them as evidenced by exhibits 3 and 4, in the sums of ?2,500,000 and ?8,000,000 for part of the land at Birnin Kebbi Power Station Garden Road and the undeveloped Land at Garden Road, Old Power Station Birnin Kebbi respectively; and that the certificate of occupancy be issued in the name of the 2nd Appellant.

That is not all, on 27/11/2014, the 1st Respondent again wrote another letter to the 2nd Respondent directing him to release the part of the land in dispute, to the 2nd Appellant. The letter reads:
?Kaduna Electricity Distribution Company
MEMORANDUM
Date 27th November, 2014
From Managing Director/CEO
To Business Manager
B/Kebbi Business Unit
Ref: PHCN/KEDC/0252/32/0192/2014
RE: RELEASE OF PART OF LAND AT BIRNIN KEBBI POWER STATION ALONG GARDEN ROAD, BIRNIN KEBBI
The Nigeria Electricity Liability Management LTD/GTE

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(NELCOM) vide their memo Ref: NELMCO/01/KDEDC/OPS/SC/32/14 dated 28th September, 2014 has sold the above mentioned property to Messrs. MIYETTI TRADING COMPANY. Copy of memo hereby attached.
In view of this, you are to release the property and relevant documents thereto to facilitate the process of transfer of ownership.?

Similarly, in confirming the sale of the afore stated properties to the 2nd Appellant, and other properties to some other persons therein named, the Bureau of Public Enterprises (B.P.E) wrote Exhibit 7 on 16/9/2015 based on valuation of the properties conducted by Exhibits 9(a) and (b) directing the 2nd Respondent to release the properties to the companies (including the 2nd Appellant), the properties having been paid for and official receipts issued by NELMCO to the said buyers. (See page 206 of the record).
?
Interestingly, the Respondents do not dispute or challenge these documents most of which were authored by or emanated from them. Their only complaint is that the properties were sold by NELMCO before the completion of the privatization processes and actual taking over of the properties by the new investors, which they

29

contend runs counter to the Privatization Laws or Rules. It was to register their complaint that Exhibit 12 dated 15/4/2015 was written to the B.P.E in response to which Exhibit 7 was written by the B.P.E. Though the properties listed in Exhibit 12, the subject of the complaint, as admitted by DW1 do not include the properties in question, it is clear from Exhibit 7 that the directive of the B.P.E is that the assets already sold and paid for by those companies, including the 2nd Appellant, should be released to the buyers (the companies) bearing in mind that they have been paid for, and official payment receipts issued by NELMCO.

It is to be noted that Exhibit 11, a copy of the application for grant of a right of occupancy dated 24/10/1972 is the only documentary evidence relied upon by the Respondents in support of their contention that the properties still belong to them. Exhibit 11 as rightly pointed out by the Appellant?s counsel, was certified by a staff of the Respondents and not by a staff of the Ministry of Land, Survey and Urban Development which issued same, which renders the document not only inadmissible pursuant to Sections 102 and 104 of the Evidence Act,

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but also of no moment in the face of Exhibits 1, 2, 3, 4, 7, 8, 9(a) and 9(b), the Respondents having divested their interest in the land covered by the said Certificate of Occupancy to the 2nd Appellant. It is trite that the mere production of a Certificate of Occupancy by a party in a suit does not by itself entitle the party to a declaration of title as the Certificate of Occupancy is not a conclusive or irrefutable proof of title. See Izevbigie vs. Olobor (2005) All FWLR (Pt. 290) 1546, Buremo vs. Akande (2000) NWLR (Pt. 690) 260. It is only a prima facie evidence of title which can be challenged and nullified. See Otukpo vs. John (2012) 7 NWLR (Pt. 1299) 357 at 382. Consequently, the claimant has the duty not only to prove his title but that he has a subsisting interest in the land covered by the Certificate of Occupancy. In the case at hand, Exhibit 11 (the copy of the Certificate of Occupancy) cannot in the face of Exhibits 1, 2, 3, 4, 7, 8, 9(a)(b) inure the Respondents as proof of title to the land which it covers, the Respondents having by the afore stated exhibits been divested of their interest in the said properties.

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It is without doubt and I have none in my mind, that had the learned trial judge properly evaluated these documentary evidence and ascribed their probative value to them, he would have arrived at a different finding and decision. His failure to consider and evaluate the probative strength of these exhibits vis a vis the oral evidence of DW1 which he choice to ascribe probative value to over and above the hard documentary evidence before him to found for the Respondents, obviously, is perverse and has occasioned a miscarriage of justice against the Appellants. It is trite that where as in the case at hand the trial Court makes a perverse finding that runs counter to the evidence on record or takes into account irrelevant matters in reaching its perverse conclusion, the Appellate Court has the duty to reverse the finding and conclusion and give it the correct decision, as such a perverse finding and conclusion is liable to be set aside. See Ogbe vs. Asade (2010) All FWLR (Pt. 510) 612. On the whole and in conclusion, the learned trial judge was wrong in pronouncing the auction sale as invalid and in discountenancing the Appellants? deposition on oath.

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His finding and conclusion leading to the dismissal of the Appellants? claim is perverse and is liable to be set aside. Accordingly, there is merit in this appeal, and is same allowed. The decision of the lower Court is set aside and judgment is hereby entered in favour of the Appellants in terms of paragraph 18(a) ? (f) of their consequential amended statement of claim. Additionally, the Appellants? are entitled to cost of ?50,000 against the Respondents.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, in advance, the judgment just delivered by my learned brother, AMINA A. WAMBAI, JCA. I agree with his reasoning and conclusion.

I allow the appeal and abide by the consequential order made in the lead judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment of my learned Brother AMINA A. WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I abide by all other consequential orders made thereto.

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Appearances:

A. D. Ahmed, Esq.For Appellant(s)

No AppearanceFor Respondent(s)

 

Appearances

A. D. Ahmed, Esq.For Appellant

 

AND

No AppearanceFor Respondent