ALHAJI AMINU HAMISU USMAN v. FIRST BANK OF NIGERIA PLC & ORS
(2019)LCN/12553(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of January, 2019
CA/J/449/2017
RATIO
COURT AND PROCEDURE: WHETHER THERE IS DISPUTE ON FACTS ADMITTED
“Dovetailing from this, is the principle that where a fact in the pleadings is admitted by the other party, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the pleadings which are expressly traversed will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant and vice versa, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: WHERE A STATEMENT OF DEFENCE RAISES NEW FACT
“The law is that where a statement of defence raises new facts and asserts specific issues which were not covered by the averments contained in statement of claim, it is incumbent on such a claimant to file a reply to respond to the new facts and failure to do so means that he will be deemed to have admitted the new facts and cannot lead evidence in rebuttal of the facts at the trial. Bakare Vs Ibrahim (1973) 6 SC 205, Obot Vs Central Bank of Nigeria (1993) 8 NWLR (Pt 310) 410, Spasco Vehicle & Plant Hire Co. Ltd Vs Alraine (Nig) Ltd (1995) 8 NWLR (Pt 416) 655, Oshodi Vs Eyifunmi (2000) 13 NWLR (Pt 684) 298, Iwuoha Vs NIPOST Ltd (2003) 8 NWLR (Pt 822) 308, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372, Phillips Vs Eba Odan Commercial & Industrial Co Ltd (2013) 1 NWLR (Pt 1336) 618. The first and second Respondents raised new facts in their amended statement of defence that required a reply from the Appellant.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
ALHAJI AMINU HAMISU USMAN – Appellant(s)
AND
1. FIRST BANK OF NIGERIA PLC
2. ALHAJI LABARAN GOBE ZANTASHI
3. ABDULRAHMAN ALIYU
4. MAGAJI ALIYU – Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Plateau State delivered in Suit No PLD/P50/2013 by Honorable Justice I. I. Kunda on the 27th of October, 2017. The Appellant commenced the action in the lower Court claiming for:
i. A declaration that the property lying and situate at No. 9 Yankwaba Anguwar Rogo Jos covered by right of occupancy No PL48539 and the property lying and situate at Haruna Hadeja Street, Jos covered by right of occupancy No PL49186 are still the property of the Appellant and that no third party interest affects same either with the third and fourth Respondents or any other party whatsoever from 31st of January 2011 up till date.
ii. A perpetual injunction restraining the first to the fourth Respondents, their privies, servants and heirs from interfering with the Appellant’s properties lying and situate at No. 9 Yankwaba Anguwar Rogo Jos covered by right of occupancy No PL48539 and lying and situate at Haruna Hadeja Street, Jos North LGA, Plateau State covered by right of occupancy No PL49186.
iii. N400,000.00 as general damages from the third and fourth Respondents for illegal trespass.
The case of the Appellant on the pleadings was that he was a customer of the first Respondent with account No 2015295347 with the University of Jos Branch of the first Respondent and that he saved and withdrew from the account constantly and that he also kept the title documents of his properties with the first Defendant. It was his case that he is the owner of two properties situated at No. 9 Yankwaba Anguwar Rogo Jos covered by right of occupancy No PL48539 and situated at Haruna Hadeja Street, Jos covered by right of occupancy No PL49186. It was his case that sometime in 2012 the first Respondent offered him an overdraft facility in the sum of N4 Million and that, consequent on the offer, the first Respondent credited his account with the sum of N4,021,375.00 on the 18th of October, 2012 and that, to his surprise his account was debited with the same amount on the same day.
It was the case of the Appellant that he complained to his Branch Manager who promised to look into it and that on the 28th of December, 2012, his account was credited with the sum of N4,205,828.61 and that, again, his account was debited with same amount on the same day. It was his case that he again complained to his Branch Manager who promised to look into it and that his account was subsequently credited with the sum of N4,570,955.20 and debited with the same amount on the same day. It was his case that he concluded that the first Respondent was not desirous of giving him the overdraft facility and that he continued to run his account and that between the 26th of November 2011 and 3rd of May, 2013 he made a total deposit in the sum of N8,935,600.00 into his account. It was his case that between the 27th of September 2011 and 25th of June 2012, he made a total withdrawal in the sum of N5,175,500.00 from the account and that the first Respondent charged his account within the same period with the sum of N2,357,126. 57 and that this was to leave a balance of N1,402,973.43 in his account.
It was his case that he was not indebted to the first Respondent and that most of the charges made in his account were wrong and illegal charges and he gave details of the alleged illegal charges reflected in account. It was his case that he did not mortgage and/or apply for the consent of the Governor to mortgage either of his two properties to the first Respondent or to anyone else and that the Governor of Plateau State did not consent to any such mortgage of his properties. It was his case that sometime in August 2013, the third Respondent informed him that his property situated at No. 9 Yankwaba Anguwar Rogo Jos covered by right of occupancy No PL48539 was auctioned to him by the second Respondent, acting on behalf of the first Respondent and that fourth Respondent similarly informed him that his property situated at Haruna Hadeja Street, Jos covered by right of occupancy No PL49186 was also auctioned to him by the second Respondent, acting on behalf of the first Respondent. It was his case that he protested the auction of his properties as he was not indebted to the first Respondent.
The first and second Respondents admitted in their response that the Appellant was a customer of the first Respondent with account No 2015295347 at its University of Jos Branch and it was their case that on the 13th of December, 2011, the Appellant applied for a loan facility of N6 Million repayable in six months. It was their case that the first Respondent approved a loan facility of N4 Million and conveyed same to the Appellant by a letter of offer dated the 31st of January, 2012 and pursuant to which the Appellant and the first Respondent executed a Secured Loan and Overdraft Agreement dated the 19th of January, 2012. It was their case that the Appellant secured the facility with his two properties situate at No. 9 Yankwaba Anguwar Rogo Jos covered by right of occupancy No PL48539 and at Haruna Hadeja Street, Jos covered by right of occupancy No PL49186 and he executed two deeds of legal mortgage in respect thereof and these were both registered as No 109 at Page 109 in Volume 31 (Misc) at the Lands Registry in Jos.
It was the case of the first and second Respondents that by a letter dated 2nd of August, 2012, the Appellant applied for a renewal of the loan facility and this was approved by the first Respondent by a letter of offer dated the 15th of August, 2012 and pursuant to which the Appellant and the first Respondent executed a new Secured Loan and Overdraft Agreement dated the 15th of August, 2012. It was their case that the renewed facility expired on the 25th of November, 2012 as at which date the debit balance in the account of the Appellant stood at N4,199,043.14 and that all efforts to get the Appellant to offset the debit balance proved abortive and by a letter dated the 23rd of March, 2013 the first Respondent gave the Appellant fourteen days to pay up the outstanding sum. It was their case that when the Appellant defaulted in repaying in amount, the first Respondent appointed the second Respondent, a licensed auctioneer, with instructions to sell the two properties in line with Deeds of Legal Mortgage.
It was the case of the first and second Respondents that by a letter dated the 9th of May, 2013 and served on the Appellant, the second Respondent gave him fourteen days to pay up the indebtedness and failing which the properties would be auctioned. It was their case that when the Appellant failed to make payment, the second Respondent caused an auction notice to be published in the Daily Trust Newspaper of June 2013 and the date of the auction sale was stated as 3rd of July 2013 and that the second Respondent also caused auction notice to be published and pasted on the two properties. It was their case that on the 3rd of July, 2013, the two properties were auctioned to the highest bidders, the third and fourth Respondents respectively, and Deeds of Conveyance were executed in their favour. It was their case that all the charges made in the account of the Appellant were legal and that the allegation of illegal charges was an afterthought and that the Appellant did not make any such allegation in the correspondences exchanged with them on the loan transaction.
The third Respondent filed a statement of defence and counterclaim and it was his case that he validly purchased the property situate at No. 9 Yankwaba Anguwar Rogo Jos and covered by right of occupancy No PL48539 at a public auction conducted by the second Respondent on the 3rd of July, 2013 for the sum of N2.8 Million. It was his case that he became aware of the auction through the advert placed in the Daily Trust Newspaper of 26th of June 2013 and the notice of public auction pasted on the property and that he attended the auction on the advertised date of 3rd July, 2013, whereat he met many other people, and that his bid was the highest bid and he was sold the property. It was his case that he paid the agreed purchase price and the first Respondent issued him a purchase receipt, handed to him the original of the right of occupancy No PL48539 and caused a Deed of Assignment and Conveyance of the property to be executed in his favour.
It was the case of the third Respondent that the first Respondent thereafter notified the Appellant of the sale of the property and of the need for the Appellant to vacate the property and hand over possession and that when the Appellant failed to vacate the property, he instructed his Counsel to commence eviction proceedings. It was his case that he purchased the property for personal use and that his Counsel served the Appellant with the requisite statutory processes to vacate the house, but that the Appellant has stayed stuck in the property and has refused to vacate same and has prevented him from making use of the property since the 3rd of July, 2013. It was his case that he is the bona fide owner of the property and that the current rental value of the property is N800,000.00 per annum and which works out at N66,670.00 per month. The third Respondent counterclaimed for (i) a declaration that he is the bona fide owner of the property; (ii) an order for possession of the property; and (iii) the sum of N66,670.00 per month as rents from July 2013 until the Appellant vacates the property.
The fourth Respondent also filed a statement of defence and counterclaim and it was in the exact same terms as the defence and counterclaim of the third Respondent, but his case was in respect of his purchase of the property situate at Haruna Hadeja Street, Jos and covered by right of occupancy No PL49186 and for which he paid the sum of N1.58 Million as the highest bidder at the public auction held on the 3rd of July, 2013.
The matter proceeded to trial and in the course of which the Appellant testified as the sole plaintiff witness and tendered one document, a statement of account, as exhibit while the first and second Respondents called three witnesses and tendered sixteen exhibits, the third Respondent testified as the fourth defence witness and tendered four exhibits and the fourth Respondent testified as the fifth defence and also tendered four exhibits. At the conclusion of trial, and after the rendering of final addresses by Counsel to the parties, the lower Court entered judgment dismissing the claims of the Appellant and granting the counterclaims of the third and fourth Respondents.
The Appellant was aggrieved by the judgment and he caused his Counsel to file a notice of appeal dated the 5th of December, 2017 and containing fourteen grounds of appeal against it. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 16th of May, 2018 on the 18th of May, 2018 and the brief of arguments was deemed properly filed and served by this Court on the 20th of June, 2018. In response, the four Respondents filed a joint brief of arguments dated the 17th of July, 2018 on the same day. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their submissions on the appeal.
Counsel to the Appellant distilled six issues for determination in the appeal and these were:
i. Whether the Appellant led sufficient evidence to prove his claims.
ii. Whether the Respondents successfully placed sufficient evidence before the lower Court to warrant their getting judgment.
iii. Whether the evidence of the first defence witness should have been relied upon by the lower Court to give judgment to the Respondents.
iv. Whether the amended statements of defence of the first and second Respondents and of the third Respondent and the fourth Respondent were properly filed and served to be relied upon by the lower Court.
v. Whether the third and fourth Respondents were entitled to the monetary claims in their counterclaims.
vi. Whether the sale of the properties of the Appellant was proper.
In arguing the first issue for determination, Counsel to the Appellant stated that the lower Court was in error when it noted that the claim of the Appellant was for title to the two properties, when in actual fact the essence of the claims was to nullify the sale of his properties by the Respondents and that his ownership of the properties was registered with the Bureau of Lands and Survey of Plateau State. Counsel stated that the lower Court was also in error when it noted that the Appellant did not show that he deposited his title documents of the properties with the first Respondent when it was a known fact that the first Respondent processed the issuance of the Certificates of Occupancy of the two properties with the title documents in their possession. Counsel stated that the lower Court closed its eyes to the fraud perpetrated by the first Respondent as shown in the statement of account tendered as Exhibit 1 where the account was credited and debited on the same day on three different occasions without giving the Appellant access to the loan facility. Counsel stated that the Appellant relied on Exhibit 1 to show that he never had access to the credit facility given by the first Respondent and in respect of which he made oral complaints to his Branch Manager.
Counsel stated that the entire evidence given the Respondents at the trial was to cover up the fraud perpetrated by the first Respondent and the specific evidence of the Appellant on the fraud was not rebutted. Counsel stated that the fulcrum of the whole case before the lower Court was the provision of a credit facility by the first Respondent to the Appellant and that this was not done and that since the properties did not belong to the first Respondent, the second Respondent has no right to auction them to the third and fourth Respondents. Counsel stated that his allegation of fraud was not challenged and that the Appellant thus adduced cogent, credible and reasonable oral and documentary evidence to warrant the lower Court entering judgment for him and he referred to the cases ofMogaji Vs Odofin (1978) 2 SC 81 and Osidele Vs Sokunbi (2012) 15 NWLR (Pt 1324) 470, amongst others. Counsel stated that Exhibit 1 was not dumped as found by the lower Court and that there was nothing to rebut in the several documents tendered by the Respondents as they were official documents of the first Respondent and documents of transactions that took place between the first Respondent and the third and fourth Respondents. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
In arguing the second and the fourth issues for determination, Counsel stated that the lower Court was in error when it relied on the amended statements of defence of the first and second Respondents as well as those of the third Respondent and of the fourth Respondent which were incompetent. Counsel stated that the respective Counsel for the Respondents did not apply and/or obtain leave of Court before filing the amended processes and that this was contrary to the provisions of Order 26 Rule 2 of the Plateau State High Court Civil Procedure Rules which makes the obtaining of such leave mandatory and failure to obtain the leave meant that the lower Court could not rely on them to give judgment in favour of the Respondents and he referred to the cases of Hussein Vs Mohammed (2015) 3 NWLR (Pt 1445) 100, NBC Plc Vs Edward (2015) 2 NWLR (Pt 1443) 201, amongst others. Counsel stated that the lower Court should have expunged the evidence led by the first to the fifth defence witnesses from the records and should not have relied on them because they were predicated on incompetent pleadings. Counsel urged the Court to resolve the second and fourth issues for determination in favour of the Appellant.
In arguing the third issue for determination, Counsel stated that the first defence witness testified that he signed his witness statement on oath in the office of his lawyer and not before the Commissioner for Oaths and that this rendered the witness statement on oath incompetent and ought not to have been expunged, and not relied upon, and that the lower Court was in error when it held that the point was a technicality. On the fifth issue for determination, Counsel stated that the lower Court should not have granted the monetary claims of the third and fourth Respondents on the counterclaim because they were based on averments in their amended statements of defence and which pleadings were incompetent.
With regards to the sixth issue for determination, Counsel stated that the sale of his properties was not proper because it was done out of malice and illegally because the auctioneer who carried out the sale did not do proper advertisement as required by law and neither did he possess an auctioneer?s licence as required by Section 4 (1) of the Auctioneer’s Law of Northern Nigeria. Counsel stated that the Respondents did not tender either the Newspaper advert or the auction notices pasted on the two properties and the second Respondent did not also produce his auctioneer’s licence at the trial. Counsel stated further that the lower Court delivered judgment outside the ninety days period provided in the Constitution of the Federal Republic of Nigeria, and, while conceding that such a delay was ordinarily not fatal if it does not occasion a miscarriage of justice, Counsel stated that it did in the instant case because the lower Court lost the tenure of the case of the Appellant. Counsel stated that though the parties were made to readopt their final written addresses before judgment was delivered by the lower Court, it has been held that this does affect the running of the ninety day period. Counsel urged the Court to resolve the issue for determination in favour of his Appellant and nullify the judgment.
Counsel concluded his arguments by praying the Court to see merit in the appeal and to allow same and set aside the judgment of the lower Court.
Counsel to the Respondents adopted the issues for determination formulated by Counsel to the Appellant and in arguing the first issue for determination, Counsel reproduced the claims of the Appellant before the lower Court and stated that they were for declaration of title to the two properties in question and not for the nullification of the sale of the properties. Counsel stated that all the Appellant did at trial was to tender a statement of account without going on to point out the alleged wrong entries and illegal charges, which was the foundation of his case and which he had the onus of proving. Counsel stated that the Appellant led no evidence in proof of the allegations and/or of the alleged fraud and that it is settled law that parties are not allowed to dump documents on the Court without pointing out the portions relevant to their case and he referred to the cases of Ladoja Vs Ajimobi (2016) 10 NWLR (Pt 1519) 87 and Okereke Vs Umahi (2016) 11 NWLR (Pt 1524) 438.
Counsel stated that he did not mortgage his two properties to the first Respondent and that he only kept the title documents of the properties with the first Respondent for safe keeping, but was unable to produce any document evidencing the assertion. Counsel stated that the Appellant led no cogent evidence to prove the allegations made in support of his claims and thus failed woefully to establish the claim and he referred to the case ofNeka B.B.B Mfg Vs ACB Ltd (2004) 2 NWLR (Pt 858) 521. Counsel reproduced portions of the findings of the lower Court on the claims of the Appellant and stated that the findings cannot be faulted in view the quality of the evidence led by the Appellant. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.
In arguing the second issue for determination, Counsel noted that the first and second Respondents did not counterclaim and merely defended the case of the Appellant and they were not required to place sufficient evidence before the lower Court to succeed. Counsel stated that be that as it may, the Respondents led sufficient evidence, oral and documentary, to prove the averments in their pleadings and he listed the documents tendered by the Respondents as exhibits and stated that, coupled with the oral evidence of five defence witnesses, they were overwhelming and that they were not contradicted or discredited and the lower Court was right to have acted on them and he referred to the cases of Yisi (Nig) Ltd Vs Trade Bank Plc (2013) 7 NWLR (Pt 1357) 522 and Matanmi Vs Dada (2013) 7 NWLR (Pt 1353) 319. Counsel stated further that the Appellant did not file a reply to any of the statements of defence of the Respondents and that law is that such failure amounted to an admission of the facts averred therein and that the whole case of the Appellant in the oral evidence were just general denials. Counsel stated that on the strength of the evidence led by the parties, the Respondents were entitled to the judgment obtained against the Appellant.
On the issue of failure of the Respondents to obtain the leave of Court to file their amended statements of defence canvassed by Counsel to the Appellant under the second and fourth issues for determination, Counsel stated that the complaint of the Appellant was puerile because the amendments were made in response to the amendments effected by the Appellant to his statement of claim and that the Respondents were entitled as a matter of right to amend their statements of defence, without leave of Court and he referred to the case of John Holt Plc Vs Allen (2014) 17 NWLR (Pt 1437) 443. Counsel stated that the evidence led by the defence witness were predicated on properly filed and served amended statements of defence and that the lower Court was right to have relied on them. Counsel urged the Court to resolve the second and fourth issues for determination in favour of the Respondents.
With regard to the third issue for determination, Counsel stated that the lower Court dismissed the claims of the Appellant for his failure to prove his case and did not rely on the evidence of the first defence witness in dismissing the claims and that, thus, even if the evidence of the first defence is expunged, it would not help the case of the Appellant. Counsel stated that the first defence witness was called by the first and second Respondents who merely defended the claims of the Appellant and who did not counterclaim and the onus was on the Appellant to lead cogent evidence to prove his case, and not to rely on the weakness of the defence and he referred to the cases of Adedeji Vs Bellow (2015) 6 NWLR (Pt 1454) 104 and Clay Industries (Nig) Ltd Vs Aina (1997) 8 NWLR (Pt 516) 208.
Counsel stated further that the statement on oath of the first defence witness stated on its face that the witness signed the statement before the Commissioner for Oaths at the High Court Registry and that evidence elicited from the witness under cross examination that he signed the statement on oath in the lawyer’s office cannot be allowed to vary the contents of the statement and he referred to the cases of Rilwan & Partners Vs Skye Bank Plc (2015) 1 NWLR (Pt 1441) 437 and Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378. Counsel reproduced the findings made by the lower Court on the competence of the statement on oath of the first defence witness and stated that the findings cannot be faulted in the face of the case law authorities. Counsel urged the Court to resolve the third issue for determination in favour of the Respondents.
In arguing the fifth issue for determination, Counsel reiterated the fact that the Respondents did not require leave to file their respective amended statements of defence in the circumstances of the case and stated that the third and fourth Respondents filed their counterclaims as separate processes and that the Appellant did not file a defence to either of the counterclaims. Counsel stated that the third and fourth Respondents testified as the fourth and fifth defence witnesses in proof of their counterclaim and that their respective testimonies were not challenged and that the logical inference is that the Appellant had no defence to the counterclaims and they should be deemed admitted and he referred again to the case of John Holt Plc Vs Allen supra.
Counsel stated that the lower Court was thus correct in its findings and in entering judgment for the third and fourth Respondents on the counterclaims and he urged the Court to resolve the issue for determination in favour of the Respondents.
On the sixth issue for determination, Counsel stated that the entire arguments of Counsel to the Appellant thereon were totally misconceived and that contrary to the submission of Counsel, the Newspaper advert of the auction, the letter written to the Appellant of the intending auction and the notice of auction pasted on the properties were tendered by the first and second Respondents as Exhibits 14, 15 and 16 respectively. Counsel stated that the Appellant neither challenged the averment on the pleadings that the second Respondent was a licensed auctioneer nor did he contest the oral evidence of the second Respondent as the third defence witness that he was a licensed auctioneer and that as such the need to produce the auctioneer licence of the second Respondent never arose. On the contention of Counsel to the Appellant that the judgment of the lower Court was delivered outside the ninety day period, Counsel stated that it should be discountenanced as the issue was not one of the complaints in the fourteen grounds of appeal of the Appellant and as such the Appellant lacked the competence to raise it. Counsel stated that, assuming it is an issue that could be raised, the Appellant failed to show the injustice he suffered by reason of the delay and that a reading of the judgment shows that the lower Court had a full grasp of the facts and of the evidence put forward in the case and was not affected by the delay. Counsel urged the Court to resolve the issue in favour of the Respondents.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and uphold the judgment of the lower Court.
Reading through the records of appeal, particularly the pleadings of the parties, the evidence led at trial and the judgment of the lower Court, as well as the arguments contained in the respective briefs of arguments of the parties, it is the view of this Court that the complaints of the Appellant in this appeal can be resolved under two issues for determination. These are:
i. Whether, on the pleadings and the evidence led by the parties in this matter, the lower Court was correct when it found that the Appellant failed to make out a credible case in prove of his claims and dismissed same.
ii. Whether, on the pleadings and the evidence led by the parties in this matter, the lower Court was correct when it found that the third and fourth Respondents made out credible cases to sustain their claims on their respective counterclaims.
This appeal will be resolved on these issues for determination and all the arguments of the Counsel to the parties in the appeal will be considered there under.
In dismissing the claims of the Appellant, the lower Court stated in the judgment thus:
Arising from the plaintiff’s claim, it ensures on the plaintiff to succeed in this case based on the strength of his case not on the weakness of the defendant’s case. I find that in this case the plaintiff has failed to adduce credible evidence in proof of his claim for the declaratory relief he seeks rather he seeks to take advantage of the traps he set in the case of the defence as the basis of proving his claim. This is certainly against all known principles of law. The position taken by the plaintiff is not only a misconception of the principle of law but it is clothed in elements of mischief. Consequently, for all I have considered on the issue, i.e. whether the plaintiff has proved his case to be entitled to the reliefs sought in the circumstances in this case is accordingly answered in the negative and it is resolved against the plaintiff.
The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G. This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F when the Court said that ‘the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases’ and ‘in addition, it also serves as the basis upon which the Court will be called to adjudicate between them.’
Dovetailing from this, is the principle that where a fact in the pleadings is admitted by the other party, either because it is expressly admitted or because it is impliedly admitted by the omission of the defendant to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact; and accordingly, only those facts stated in the pleadings which are expressly traversed will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant is admitted by the defendant and vice versa, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538.
The dispute in the instant case revolved around the two properties of the Appellant, one situate at No. 9 Yankwaba Anguwar Rogo Jos covered by right of occupancy No PL48539 and the other at Haruna Hadeja Street, Jos covered by right of occupancy No PL49186 and the sale of the properties by the first and second Respondents to the third and fourth Respondents. Reading through the pleadings filed by the parties before the lower Court, the averments in the amended statement of claim of the Appellant were incoherent and unclear as to what exactly his grievances against the Respondents were, while the averments in the respective amended statements of defence of the Respondents, particularly the amended statement of defence of the first and second Respondents, were clear, lucid and specific on the facts around the transactions that took place between the Appellant and the first and second Respondents and which empowered and led to the first and second Respondents selling the said two properties and the steps taken to sell the properties.
Counsel to the Appellant submitted that the lower Court should have discountenanced and not placed any reliance on the respective amended statements of defence of the Respondents because they did not seek for and/obtain the leave of Court before filing same. As rightly stated by the Counsel to the Respondents, this submission is baseless and totally misconceived. The records of appeal show that subsequently to the filing of the pleadings by all the parties, the Appellant sought for and obtained the leave of Court to amend his statement of claim and that he filed an amended statement of claim sequel to the grant of the leave by the lower Court. The Respondents amended their respective statements of defence consequentially to meet the amendments carried out by the Appellant. The law is settled that where a plaintiff amends his statement of claim, a defendant has a right, and is at liberty, without need for the leave of Court, to make consequential amendments to his statement of defence, and that the same principle holds true where an appellant amends his brief of arguments. Mobil Oil (Nig) Plc Vs IAL 36 Inc (2000) 6 NWLR (Pt 659) 146, John Holt Plc Vs Allen (2014) 17 NWLR (Pt 1437) 443. This principle is a component part of the constitutionally guaranteed doctrine of fair hearing which postulates that all parties must be given an equal opportunity to present their cases. There was thus no obligation on the Respondents to obtain the leave of Court before amending their respective statements of defence.
The facts pleaded in the amended statements of defence of third and fourth Respondents were predicated on the averments in the amended statement of defence of the first and second Respondents. The Appellant did not file a reply to counter the specific facts averred and documents pleaded in the amended statement of defence of the first and second Respondents on the transactions that took place between them. The law is that where a statement of defence raises new facts and asserts specific issues which were not covered by the averments contained in statement of claim, it is incumbent on such a claimant to file a reply to respond to the new facts and failure to do so means that he will be deemed to have admitted the new facts and cannot lead evidence in rebuttal of the facts at the trial. Bakare Vs Ibrahim (1973) 6 SC 205, Obot Vs Central Bank of Nigeria (1993) 8 NWLR (Pt 310) 410, Spasco Vehicle & Plant Hire Co. Ltd Vs Alraine (Nig) Ltd (1995) 8 NWLR (Pt 416) 655, Oshodi Vs Eyifunmi (2000) 13 NWLR (Pt 684) 298, Iwuoha Vs NIPOST Ltd (2003) 8 NWLR (Pt 822) 308, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372, Phillips Vs Eba Odan Commercial & Industrial Co Ltd (2013) 1 NWLR (Pt 1336) 618. The first and second Respondents raised new facts in their amended statement of defence that required a reply from the Appellant.
Now, it is elementary that the legal burden of proof in a civil case is always on a claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case and he has the onus of proving his case by preponderance of evidence. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant. Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt 126) 253, Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. This is explained by the maxim ‘ei qui affirmat non ei qui negat incumbit probation’ which means the burden of proof lies on one who alleges, and not on him who denies. Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1. Thus, by natural course of events, the onus was on the Appellant to prove all the allegations contained in his pleadings.
The Appellant testified as the sole witness in proof of his case and he gave evidence in the terms of his case on the pleadings and he tendered one exhibit, a statement of account, as Exhibit 1. The allegations of the Appellant on his pleadings were that the first Respondent made credit and debit entries into his account as well as unauthorized, wrongful and illegal charges and he listed the charges numbering forty in the pleadings. Apart from tendering the statement of account, the Appellant did not identify the said unauthorized and illegal charges in the statement of account and neither did he give evidence of what made the alleged entries unauthorized and illegal; he just dumped the statement of account on the lower Court and left it to the lower Court to find the unauthorized and illegal charges therein and to decipher why they were not unauthorized and were illegal. It is settled law that it is not enough for a party to tender documents in Court in support of his case without relating the contents of the documents to the specific allegations contained in his pleadings. Dickson Vs Sylva (2017) 8 NWLR (Pt 1567) 167, Andrew Vs Independent National Electoral Commission (2018) 9 NWLR (Pt 1625) 507.
The records of appeal show that the Appellant made a statement on oath in support of the original writ of summons and original statement of claim and it was deposed to before the Commissioner for Oaths on the 29th of August, 2013. In the original statement on oath, the Appellant admitted that he obtained an over draft facility of N4 Million from the first Respondent on the 31st of January, 2012 and that he drew on the facility and used his two properties in issue in the matter as collaterals for the loan and further that he applied for a renewal of the overdraft facility upon its expiration. These facts are diametrically opposed to the contents of the statement on oath deposed to by him in support of the amended statement of claim and which he adopted at the trial. The Appellant was confronted with the contents of the original statement on oath under cross-examination to test the credibility of his evidence and the position of the law is that this is permissible; the deposition or statement made on oath by a witness who subsequently gives evidence can be used to discredit the testimony of such a witness ? Jizurumba Vs The State (1976) All NLR 180, Enitan Vs State (1986) 1 SC 50, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.
The Appellant merely denied the depositions in the original statement on oath when confronted with it, without giving any explanation or reason for the inconsistency in the contents of the two statements on oath. The contradictions between the original statement on oath and the subsequent statement on oath were on facts very material and substantial to the case of the Appellant. It is trite law that where a witness makes two statements on oath which contain contradictions on material and substantial facts and he gives no explanation for the contradictions, the witness is to be treated as untruthful and unreliable and regarded as a perjurer who does not deserve to be credited with any honour. Ayanwale Vs Atanda (1988) 1 NWLR (Pt 68) 22, Monoprix (Nig) Ltd Vs Okonwa (1995) 3 NWLR (Pt 383) 325, Aremu Vs Chukwu (2012) 3 NWLR (Pt 1288) 587, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Emeka Vs Okoroafor (2017) 11 NWLR (Pt 1577) 410, Orient Photo Nigeria Ltd Vs Eco Bank Plc (2018) LPELR 44764(CA), Zakirai Vs Muhammad (2018) LPELR 42349(SC). In Ezemba Vs Ibeneme (2004) LPELR 1205(SC), the Supreme Court stated that the evidence of such a witness is not entitled to the honour of credibility and that such a witness does not deserve to be treated as a truthful witness. The entire evidence given by the Appellant at the trial cannot thus be regarded or treated as credible and/or reliable.
The first and second Respondents called three witnesses in proof of their defence. The witnesses testified in line with the case of the first and second Respondents on the pleadings and they tendered the hand written application of the Appellant dated the 13th of December, 2011, for a loan facility of N6 Million repayable in six months through the Appellant under cross examination as Exhibit 2. The first and second Respondents further tendered through the first defence witness the letter of offer of loan of N4 Million, letters received from the Appellant?s Solicitors on the transaction, statement of account with verifying certificate, letter of demand, deeds of legal mortgage of the two properties, secured loan and overdraft agreement entered into with the Appellant in respect of the overdraft facility, letter of the Appellant seeking for renewal of the facility, a second secured loan and overdraft agreement entered into with the Appellant on the renewal of the overdraft facility, consent letter issued by the Appellant for the mortgages, Daily Trust Newspaper containing advert of auction dated 26th of June, 2013, the letter of second Respondent addressed to the Appellant to pay up or have the properties auctioned and the auction notice pasted on the properties, and they were marked as Exhibits 3 to 16.
The evidence led by the witnesses of the first and second Respondents was not contradicted, disparaged or discredited under cross examination and neither did the Appellant impugn any of the documentary evidence presented by the first and second Respondents. The law is settled that evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act. Where evidence of a witness has not been challenged, contradicted or shaken under cross examination and such evidence is not inadmissible and it is in line with the facts so pleaded, the evidence must be accepted as the correct version of what was expected to be proved, and the Court is not only entitled to, but also no reason not to accept it ? Stanbic IBTC Bank Plc Vs Longterm Global Capital Ltd (2018) 10 NWLR (Pt 1626) 96.
The evidence led by the third and fourth Respondents in their defence was predicated on the evidence of the three witnesses called by the first and second Respondents. It is settled law that in civil suits, cases are won upon a preponderance of evidence. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand ? Onwuka Vs Ediala (1989) 1 NWLR (Pt 96) 182, Dibiamaka Vs Osakwe (1989) 3 NWLR (Pt 107) 101 at 113, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt 141) 735 at page 751 thus:
It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or tribunal of the probability of his case rather than that of the opponent on the point in issue
It is obvious from the pleadings of the parties and the evidence led thereon that the Appellant did not make out a credible case in support of his claims, talk less of one that preponderated over the case of the Respondents. The finding of the lower Court that the Appellant did not make out a case to sustain his claim cannot be faulted. It is settled law that in civil cases, the onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise ? Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. In other words, where a claimant fails to make out a credible case in support of his claims, no burden shifts on the defendant and the case of the plaintiff must fail without more. The law is that there is no burden on the defendant ? Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175. The complaint of the Appellant in this appeal against the evidence led by the first defence witness is baseless and of no moment. The lower Court was very correct when it dismissed the claims of the Appellant.
Going to the counterclaims of the third and fourth Respondents, the lower Court deliberated in the judgment thus:
In proof of their respective counter claim, both the 3rd Defendant Counterclaimant and the 4th Defendant Counterclaimant relied on their various evidence adduced in the substantive case. Incidentally, the plaintiff neither filed a reply to the counterclaims nor led credible evidence in rebuttal of the respective claims of the counterclaimants. It is trite law that where a Court has before it only the unchallenged evidence of a party to consider, the Court is bound to accept the unchallenged evidence.’
The 3rd and 4th defendants/counterclaimants having placed the same set of evidence before this Court unchallenged in proof of their respective counterclaim, I am obliged, to accept the uncontroverted evidence and to act on same.
Consequently, I find merit in the counterclaims of the 3rd and 4th defendants/counterclaimants against the plaintiff/defendant to the counterclaim, they hereby succeed. I accordingly grant all the reliefs sought therein
It is trite law that a counterclaim is a claim for relief asserted against an opposing party after an original claim has been made. A counterclaim is an independent action instituted as a cross action and it is governed by the rules of pleadings as the original action. Lokpobiri Vs Ogola (2016) 3 NWLR (Pt 1499) 328. Thus, generally it is necessary for a claimant to file and serve a defence to counterclaim to join issues with a counter-claimant. If the claimant fails to file a defence to properly traverse the material averment in the counter claim, then there will be no issues joined between the parties on the subject matter of the counter claim, and the allegation contained in the counter claim will be regarded as admitted. Maobison Inter-Link Associates Ltd Vs UTC Nigeria Plc (2013) 9 NWLR (Pt 1359) 197. The Appellant did not file a defence to the counterclaim of either the third Respondent or that of the fourth Respondent.
In proof of his counterclaim, the third Respondent testified as the fourth defence witness and he gave evidence in the terms of his averments on the counterclaim and he tendered the purchase receipt issued to him by the first Respondent upon the payment of the N2.8 Million as the highest bidder at the auction, and the original of the right of occupancy No PL48539 handed to him as well as the Deed of Conveyance of the property executed in his favour and the seven days notice issued and served on the Appellant, and these were admitted as Exhibits 17 to 20. The fourth Respondent testified as the fifth defence witness and he similarly gave evidence in the terms of his averments on the counterclaim and he tendered the purchase receipt issued to him by the first Respondent upon the payment of the N1.58 Million as the highest bidder at the auction, and the original of the right of occupancy No PL49186 handed to him as well as the Deed of Conveyance of the property executed in his favour and the seven days notice issued and served on the Appellant, and they were admitted as Exhibits 21 to 24. The Appellant did not disparage, discredit and/or challenge the oral and documentary evidence led by the third and fourth Respondents nor did he lead any contrary or contradicting evidence in response.
It is settled law that ordinarily, the failure of a claimant to file a defence to a counterclaim and/or to contest the evidence led on the counterclaim may not be damaging if he succeeds in his claim, because the success of his claim may after all render useless the counterclaim, depending on the nature of the counterclaim. Where, however, he fails in his claim and he had filed no defence to the counterclaim nor contested the evidence led thereon, the counterclaim will be taken as uncontroverted and the defendant is entitled to succeed on the counterclaim ? Ogbonna Vs Attorney General, Imo State (1992) 1 NWLR (Pt 220) 647, Maobison Inter-Link Associates Ltd Vs UTC Nigeria Plc supra. With the dismissal of the claims of the Appellant, the third and fourth Respondents were entitled, in the circumstances of this case, to succeed on their counterclaims. The decision of the lower Court granting the counterclaims cannot be impugned.
The Appellant has given this Court no reason to tamper with the decision of the lower Court. This appeal is downright frivolous and vexatious. This Court has no hesitation in dismissing the appeal. The judgment of the High Court of Plateau State delivered in Suit No PLD/P50/2013 by Honorable Justice I. I. Kunda on the 27th of October, 2017 is hereby affirmed. The Respondents are entitled to the cost of this appeal assessed at N25,000.00 each. These shall be the orders of the Court.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the leading judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the conclusion reached therein that the Appellant has not placed before this Court any cogent reason to disturb the decision of the trial Court.
I hereby dismiss the appeal for same reasons adduced in the lead judgment and affirm the judgment of the High Court of Plateau State delivered on 27th October, 2017 by I.I. Kunda, J. in Suit No. PLD/P50/2013.
I abide by the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the privilege of reading in draft the lead Judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, just delivered.
I agree entirely with the reasoning and conclusion that the appeal is downright frivolous and vexatious and should be dismissed.
I also dismiss the appeal and abide by the consequential orders contained in the lead judgment.
Appearances:
S. G. Oyafemi with him, A. L. MuhammadFor Appellant(s)
E. O. Okoro with him, Peters IkeoluFor Respondent(s)
