BABAYARO v. LABILE & ORS (2020)

BABAYARO v. LABILE & ORS

(2020)LCN/14797(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/G/151/2019

RATIO

JURISDICTION: DUTY OF THE COURT WHERE THE JURISDICTION OF THE COURT IS CHALLENGED ON THE GROUND OF INCOMPETENCE

The law as settled is that where the jurisdiction of the Court is challenged, on ground of incompetence, the Court must, as a matter of priority determine its competence before proceeding with the substance of the case, whether it is a trial Court or appellate Court. PER ABUNDAGA, J.C.A.

PRELIMINARY OBJECTION: POSITION OF THE LAW ON AN OBJECTION TO THE COMPETENCE OF AN APPEAL BY WAY OF PRELIMINARY OBJECTION

It is trite law, and there are a legion of authorities in support that an objection to the competence of an appeal shall by way of preliminary objection. However, if the objection is to some grounds of appeal, which if struck out could still leave the appeal arguable, the applicant shall come by way of motion on notice. The case of NCC vs. Motophone Ltd (supra) cited by the Appellant’s Counsel himself supports this view. In the case KLM Royal Dutch Airlines vs. Aloma (2017) LPELR-42588 (SC), it was held:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” Per KEKERE-EKUN, JSC (Pp. 6-7, paras. D-B).
See also Tongo vs. Mailantarki (2015) LPELR-25749 (CA), Pp. 12 – 13, para F). PER ABUNDAGA, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

However, there is always a starting point, which is general, that the burden of proof in civil cases is on the plaintiff. See Sections 131, 132, 133 and 136(1) of the Evidence Act 2011. It is also trite that the plaintiff must succeed on the strength of his own case and not depend on the weakness of the defence. I refer to the following case: Aremu vs. Adetoro (2007) LPELR-546 (SC) per Tobi, JSC (p. 9 paras B – D), NAF & Anor vs. Adamu (2018) LPELR-44369 (CA), per Adefope – Okojie, JCA (Pp. 19 – 20, paras E – C). PER ABUNDAGA, J.C.A.
DOCUMENTARY EVIDENCE: WHETHER DOCUMENTS HAVE TO BE PLEADED

The law does not require that documents have to be specifically pleaded. It is sufficient if facts alluding to the document is pleaded. In the case of Adeoye & Ors vs. Adegoke (supra) cited by the 1st – 3rd Respondents the position of the law was thus stated:
“The law is elementary that the document in support of facts pleaded need not be pleaded. It can be tendered in support of facts pleaded…” per Pemu, JCA (p. 26, paras E – F). See also on this, Okonkwo vs. Cooperative & Commerce Bank (Nig) Plc & Ors (2003) LPELR-2484 (SC) p. 60, paras B – D, Adamu vs. Takori & Ors (2009) LPELR-3593 (CA), (p. 25, paras D – F), Oghoyone vs. Oghoyone (2010) LPELR-4689 (CA) (Pp. 19 – 20, paras F – A). PER ABUNDAGA, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ALHAJI DANJUMA BABAYARO APPELANT(S)

And

1. MOSES BABA LABILE 2. JIBRIN BELLO AKA LUNGUS 3. MGV MOTORS 4. NIGERIAN POLICE FORCE GOMBE RESPONDENT(S)

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment delivered by Hon. Justice Paul Idi Appollos on 11/10/2018 in Suit No. GM/09/2017.

The plaintiff (now appellant) commenced his action by a writ of summons endorsed with a statement of claim wherein he claimed as follows:-
a. A Declaration that the sale of the Motor Vehicle Kia Serento by the 1st to 3rd Defendants at their business premises at the purchase price of N2,800,000.00 was a sale to an innocent purchaser for value without notice.
b. A DECLARATION that the apprehension and collection of the Motor Vehicle Kia Serento bought by the Plaintiff by the Police at above price from the 1st to 3rd by resulting to loss of its use and the purchase price has caused him both financial and disrepute in the society he lives in.
c. AN ORDER of this Honourable Court directing the 4th Defendant, his agents and or privies not to release the motor vehicles impounded and kept in their premises until a determination of this suit.
d. AN ORDER of this Honourable Court directing the 1st to 3rd Defendants to repay the Plaintiff the purchase

sum of N2,800,000.00 (Two Million Eight Hundred Thousand Naira) being the cost or value of the Kia Serento carted away on suspicion of being a stolen property.
e. The sum of N2,000,000.00 (Two Million Naira) general damages for the above loss.
f. The sum of N1,000,000.00 (One Million Naira) exemplary damages on above
g. The cost of filing this action.

The Appellant’s claim is predicated upon the following facts as abridged:
The 1st and 2nd Respondents, who were defendants (1st and 2nd) before the trial Court operated a business of sale of cars, in the name of MVG Motors. The Appellant as alleged by him bought a Kia Serento Jeep which was advertised to him by the 2nd Respondent on 16/12/2014 in the sum of N2, 800, 000.00 and was issued a cash receipt and cash/credit invoice by the 1st – 3rd Respondents. While using the car on 7th November, 2014 within Gombe Metropolis, he was accosted by Policemen who impounded the car and alleged that it was a stolen car. The car was then taken to the office of the 4th Respondent, who relieved him of the car. Shocked, dismayed and appalled by this event, the Appellant petitioned the 4th

Respondent. Following his petition aforesaid vehicles belonging to the 1st – 3rd Respondents were impounded and kept in the premises of the 4th Respondent. That consequent upon this the Chairman of the Motor Dealers Association, Gombe State decided to intervene by directing the 1st – 3rd Respondents to pay the Appellant the purchase price of the car he bought from them, but they did not, hence the Appellant’s action against them and the 4th Respondent.

The 1st – 3rd Respondents on their own part contended that they only acted as intermediaries between the owner of the car and the Appellant. That the Appellant bought the car directly and paid for it. That it is their practice as motor dealers to accept cars from those who are desirous of selling them, and to act as intermediaries which was what happened in this case, and that they cannot be liable to the Appellant for what happened, as both they and the Appellant followed the case up to the 4th Respondent’s headquarters at Abuja where it was revealed to them for the first time that the car was stolen by the owner’s brother who brought it to Gombe with the original

documents, and from whom the Appellant bought it through their car stand. They gave the name of the person who sold the car directly through them to the Appellant as Chibuzor Nwanma.

Both the 1st – 3rd Respondents and the 4th Respondent filed their statement of defence. The 1st – 3rd Respondents filed a joint statement of defence. After the exchange of pleadings the case went to trial, which culminated in the Judgment delivered on 11/10/2017.

Not satisfied with it, the Appellant approached this Court with a notice of appeal containing four grounds of appeal, the omnibus ground of appeal inclusive.

Upon the due compilation and transmission of the record of appeal the Appellant and Respondents filed their brief of argument.

The Appellant’s brief of argument settled by Habu Abdu, Esq. was filed on 14/09/20.

The 1st – 3rd Respondents’ brief of argument settled by Benjamin Sati, Esq., was filed on 25/9/20. Incorporated in the 1st – 3rd Respondents’ brief of argument is a notice of preliminary objection, on which arguments are proffered on pages 6 – 8 of the said brief argument. In response to

the 1st – 3rd Respondents’ brief of argument; the Appellant filed a reply brief on 29/09/2020. Pages 1 – 6, and part of page 7 of the Reply brief of the Appellant contain arguments in response to their 1st – 3rd Respondents’ notice of preliminary objection, while the remaining part of pages 7 – 8 deal with Appellant’s reply to issues raised in the substantive appeal.

At the hearing of the Appeal on 15/10/2020, Mr. Benjamin Sati, 1st – 3rd Respondents Counsel first moved the Notice of preliminary objection and adopted the arguments in support thereof as contained in the 1st – 3rd Respondents’ brief of argument earlier referred to. Sati Benjamin appeared with J. W. Nimfas for the said 1st – 3rd Respondents, in urging this Court to strike out the appeal.

Habu Abdu who appeared with Amina Abubakar and U. C. Anthony opposed the preliminary objection adopted arguments in support of same earlier referred to, as contained in the Appellant’s reply brief, in urging the Court to dismiss the Notice of Preliminary Objection.

Coming to the main appeal, Mr. Habu Abdu, Appellant’s

Counsel adopted the Appellant’s brief of argument, and the arguments therein, in urging the Court to allow the appeal.

Mr. Benjamin Sati adopted the 1st – 3rd Respondents’ brief of argument, earlier on referred to, and the arguments contained therein, in urging the Court to dismiss the appeal.

The Notice of Preliminary Objection seeks to terminate this appeal on ground of incompetence. The law as settled is that where the jurisdiction of the Court is challenged, on ground of incompetence, the Court must, as a matter of priority determine its competence before proceeding with the substance of the case, whether it is a trial Court or appellate Court.

I will therefore abide by the settled position of the law by determining the 1st – 3rd Respondents’ Notice of Preliminary Objection first in this appeal.
The grounds of the preliminary objection are:
(a) “The Judgment appealed against was delivered on the 11th October, 2018 by his Lordship, P. I. Appollos J. and the appellant had 90 days within which to file his appeal.”
(b) “That the front page of the notice of appeal shows that it was filed

on the 11th day of January, 2019 that was the 90th day after Judgment.”
(c) “That the receipt of payment for filing fee which is supposed to be condition precedent to the filing of Court processes carries 16th day of January, 2019 as the date of payment.”
(d) “That the entire processes leading to the filing shows there is no competent appeal the payment for the filing shown on the receipt on page 110 of the records to be 5 days outside the days allowed by law for appealing requires extension of time as the appeal is no longer as of right.”

It is submitted that the precondition for filing of process is payment which is evidenced by a receipt of payment, reliance placed on the case of Emavworhe Etajata & Ors vs. Peter Egbini Ologbo & Anor (2007) LPELR-1171 (SC). It is argued that since the receipt shows that payment was made on 16/1/19, the appeal was filed on the same date, and therefore filed 5 days outside the prescribed time, reliance placed on the case of Chief Etete S. Owoh & Ors vs. Chief Kingston U. Asuk & Anor (2008) LPELR-2853 (SC).

That the appeal, having been filed out of time is

incompetent. We are argued to strike out same.

Appellant tries first to fault the preliminary objection as being incompetent and submits that the Respondents should have come by way of motion on notice, and cited a number of cases to support his arguments; one of which is the case of NCC vs. Motophone Ltd (2019) 14 NWLR (Pt. 1691) 1 at Pp. 24 – 25 paras F – C).

As to the preliminary objection in itself, it is argued by the Appellant that by Order 7 Rule 6 of the Rules of this Court the Court can strike out a notice of appeal if it is not competent or for any reason the Court finds sufficient. However, Counsel refers the Court to page 105 of the record of appeal in which the registrar endorsed the following on the Appellant’s notice of appeal:
“Notice and grounds of appeal = N5000 on RCR No. 051428 of 11-Jan-2019.”

Let me first address the Appellant’s implied objection to the Notice of Preliminary objection. In a nutshell, he argued that the Respondents should have come by way of motion on notice. Counsel is completely in error. The objection is to the competence of the notice of appeal, and to have it struck out for incompetence.

(2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.” Per KEKERE-EKUN, JSC (Pp. 6-7, paras. D-B).
See also Tongo vs. Mailantarki (2015) LPELR-25749 (CA), Pp. 12 – 13, para F).
The Notice of preliminary was properly raised.

I shall now consider the merit of the preliminary objection.

The issue in this preliminary objection is not whether or not a notice of appeal should be filed within 90 days of the Judgment delivered; and it is not also on whether the appeal filed on 11/1/19 was filed outside the 90 days or not. The Notice of preliminary objection is predicated on the argument of Respondents’ Counsel that the appeal was filed on 16/1/2020 and therefore, it was filed 5 days out of time. Page 110 of the record is a receipt evidencing that the payment for the filing of the appeal was made on 16/1/19, even though Counsel concedes that the date on the Notice of Appeal shows that it was filed on 11/01/19. By implication, he argues that even though the Notice of Appeal shows that

it was filed on 11/01/19 payment which evidences the actual filing of the Notice of Appeal was made on 16/01/19. Curiously, Counsel noticed that on page 105 of the record of appeal, the appeal was filed on 11/01/19 but did not also notice, it seems, or Counsel wants this Court to believe that he did not also see the following endorsement on the same page 105 of the record of appeal: “Notice & grounds of appeal = N5000 on RCR No. 051428 of 11th Jan, 2019.”

Can Counsel possibly argue that he did not see the endorsement aforesaid on page 105 of the record of the appeal? I see his non-reference to it as an attempt to conceal facts on record which he thinks may not assist his case. This conduct is a far cry from what is expected from of a minister in the temple of justice, which counsel definitely is. It is condemnable and I mince no words in deprecating such an attitude. Now the receipt on page 110 of the record on which counsel made heavy weather in his objection and argument shows that it is a receipt issued by Gombe State Government Board of Internal Revenue. There is no indication as to what it was paid for, except that it shows the payers

name as Alh. Danjuma Babayo, supposedly the Appellant herein. It also shows that five thousand Naira (N5000) was paid, and the Agency that paid it was the High Court of Justice.

Now, Order 7 Rule 7 of the Court of Appeal Rules, 2016 provides:
“7. The Registrar of the Court below shall endorse on the notice of appeal, or application the fees paid therein, the receipt number and the date of payment.”

The endorsement at page 105 of the record of appeal contains all the requirements of Order 7 Rule 7 of the Rules of this Court on the filing of Notice of Appeal.

Whoever issued the receipt on page 110 of the record was not, and could not be the registrar of the High Court where the Notice of Appeal was filed.

The complaint is not as regards the filing of the Notice of Appeal on 11/01/2019. Therefore I hold without any iota of doubt that the appeal, filed on 11/01/2019 is competent.
This renders the preliminary objection without substance, unmeritorious, and is hereby dismissed.

I shall now proceed to determine the merit of the appeal.
The appellant raised two issues for determination in his brief of argument.

The issues are:
(i) Whether the learned trial Judges finding of fact is not perverse (Distilled from Grounds 1, 2 and 3).
(ii) Whether the Judgment of the trial Court is not against the weight of evidence (Distilled from Ground 4)

The 1st – 3rd Respondents adopted the Appellant’s issues in their brief of argument.

Argument of Counsel on the Issues
Issue one
Whether the learned trial Judge’s finding of fact is not perverse.

Appellant’s Counsel
Appellant’s Counsel faults the finding of the trial Court on pages 100 – 101. In his submission, he contends that from the pieces of evidence adduced at the trial including the clear and unqualified admission of the 1st and 2nd Respondents of selling the Kia Serento car in question and issuing Exhibits “A1” and “A2” to the Appellant, and the collection of the money by the 1st Respondent the trial Court should have found otherwise from his finding on pages 100 to 101 the record of appeal. That the Court having held at page 101, lines 18 and 19 that notwithstanding his belief that the car was sold to the Appellant should have

gone further, but turned around to make findings at page 101 lines 21 to 32 without calling upon parties or Counsel to address it. Counsel’s submission is that apart from the fact that most of the findings of the Court which he referred to in his brief are not supported by the pleadings and evidence, they were based on issues raised and decided/resolved suo moto without inviting counsel to address it on them.

It is further submitted that the trial Judge abandoned his role as an umpire and set up a case for the 1st – 3rd Respondents different from the one set up in their pleadings, not even backed up by evidence. That the finding is thus perverse, and calls on us to interfere and to allow the appeal and set aside the Judgment.
The submissions are not without the support of decided authorities, some of which are:
(i) On Counsel’s submission that the learned trial Judge did not carry out a proper evaluation of the evidence before arriving at his finding of fact, cases cited include Eze vs. State (2018) 11 NWLR (Part 1630) 353 at 369, paras C – D, Olakunle vs. The State (2018) 6 NWLR (Pt. 1614) 91 at 114 paras C – D).

(ii) On Counsel’s submission that the evidence of the Appellant, even under cross examination was not contradicted and in law such evidence should be accepted upon by the Court, Counsel cites in support the cases of Kosile vs. Folarin (1989) 3 NWLR (Pt. 107) at 12, paras C – D and Matthew vs. State (2018) 6 NWLR (Pt. 1616)561 at P. 580, para F.
(iii) Counsel, as earlier stated, did make heavy weather on the fact that the learned trial Judge took so many issues that he resolved in favour of the 1st – 3rd Respondents without inviting Counsel to address him on those issues. Counsel supports the submission with judicial authorities which include Ajaokuta Steel Co Ltd vs. G. I. & S. Ltd (2019) 8 NWLR (Pt. 1674) 213 Nocklink ventures Ltd vs. Aroh (2020) 7 NWLR (Pt. 1722) 63, at 87 – 88, paras H – C.
(iv) In calling on this Court to interfere with the finding of the trial Court because they are perverse, Counsel supports his submission with the case of Ahmed vs. Registered Trustees AKRC (2019) 5 NWLR P. 300 at page 3151 paras E – G.

Respondents’ Counsel
On issue one, it is submitted for the

1st – 3rd Respondents that the findings of fact by the trial Judge was accurate, and far from being perverse. That the findings were informed and backed by pleadings and evidence adduced at the trial. On what evaluation entails, Counsel refers the Court to the case of Onwuakpa & Ors vs. Onyeama & Ors (2018) LPELR-45091 (CA), Pp. 52 – 57, paras C – A.

On when a finding of fact by the Court can be said to be perverse, the case of Mini Lodge Ltd & Anor vs. Ngei & Anor (2009) LPELR-1877 (SC), Page 45, paras E – G is relied on. Counsel went on to submit that the findings of fact by the trial Judge are backed by the pleadings and evidence. The Court is referred to paragraphs 4, 5, 7, 8, 9, 10 and 11 of the joint statement of defence, and to the evidence of the Respondents as defendants at the lower Court. On the evidence, he referred the Court to pages 24 – 27, and 34 – 36 of the record of appeal. It is further submitted for the Respondents that the substance of the Respondents averments are deemed admitted since the Appellant did not file a reply to the new issues raised in the joint statement of defence. In

support of the position canvassed, reliance is placed on the case of Registered Trustees of the Living Christ Mission & Ors vs. Aduba & Anor (2016) LPELR-41591 (CA), Pp. 24 – 25, paras C – C.

That the evidence given by the Respondents was not challenged and uncontroverted, and in urging us to accept the evidence, Counsel relies on the case of Oba Oyepade Lipede, the Alake of Abeokuta & Ors vs. Chief Adio Sonekan & Anor (1995) LPELR-1786 (SC) at page 20, paras B – C. It is further contended by Counsel that the pleadings and evidence supports the trial Judge’s finding on page 100 of the record of appeal.

On Appellant’s submission that Exhibit 2 – (the original documents of the vehicle) was not pleaded, Counsel submits that the Respondents mentioned it in paragraph 8 of the joint statement of defence, and that DW1 testified to it in his evidence.

Counsel submits that documents in support of pleaded facts are admissible in evidence. This submission is fortified with the case of Adeoye & Ors vs. Adegoke (2014) LPELR-22423 (CA), page 26, paras E – F.

It is further submitted that

no issue was raised and resolved suo moto by the trial Judge but that was done by the trial judge, was his responsibility as a Court to draw analogy from pleaded facts and evidence adduced in support.
Counsel urges the Court to resolve issue one in favour of the 1st – 3rd Respondents.

Issue Two
Whether the Judgment of the trial Court is not against the weight of evidence.

Appellant’s Counsel
Counsel submits for the Appellant that the Judgment of the Court is against the weight of evidence. On what is meant when Judgment is said to be against the weight of evidence, cited to the Court is the case of Stanbic IBTC Bank Plc vs. LGC Ltd (2018) 10 NWLR (Pt. 1626) 96 at 136, paras C – E, and the case of Mullitan Ltd vs. A.S. HIDE S.G Merchant Ltd (2020) 6 NWLR (Pt. 1719) 130 at 193, paras B – E.

It is submitted that the confirmation by 4th Respondent that the 1st – 3rd Respondents were arraigned on FIR based on the transaction lent credence to the Appellant’s case, that despite the evidence before the Court, the trial Judge failed to apply it properly, but instead wrongly found in favour of the 1st

– 3rd Respondents, and this occasioned a serious miscarriage of justice. It is therefore submitted that since the trial Court failed in its duty of evaluation, the Court should set aside the orders of the Court.

Respondents’ Counsel
It is for the Respondent submitted on issue two that the Judgment of the trial Court is based on finding of fact founded on evidence. On the definition of weight of evidence, reliance is placed on the case of Mohammed vs. State (2017) LPELR-4209 (SC), page 9, para E, and the case of FAM-LAB (Nig) Ltd & Anor vs. JAH MARCO & Anor (2018) LPELR-44730 (CA), Pp. 39 – 40, paras D – A.

It is submitted that the entire case as presented by the Appellant fell short of making out any case to entitle him to any Judgment, and the claims ought to have been dismissed; and urges us to do so. Reliance is placed on the case of Balogun vs. UBA Ltd (1992) LPELR-728 (SC), page 20 paras A – C.

On the submission of Appellant’s Counsel that the confirmation by 4th Respondent that the 1st – 3rd Respondents were arraigned on a first information Report (FIR) lent credence to the

Appellant’s case, Counsel submits, it did not add any credence to Appellant’s case. That it is elementary that an accused person remains innocent until proven guilty. That in any case, the 1st – 2nd Respondents who were arraigned and tried were discharged, and this was made known to the Court during final address of Counsel. It is further expatiated that what was before the trial Court, and now on appeal had little to do with the FIR as per the defence of the 1st – 3rd Respondents which alleged that the Appellant had a direct dealing with Chibuzor Nwanma, who the Appellant refused to proceed against.
Counsel urged us to resolve this issue in favour of the 1st – 3rd Respondents.
Appellant’s Reply Brief
Counsel submits that what Respondents’ Counsel has tried to do was to attempt to lead evidence before this Court in support of their pleadings on which there is no evidence in their witness statement on oath. That pleadings not supported evidence renders the averments bare and devoid of proof.

Resolution of the issues
The two issues distilled and argued by the Counsel for the Appellant and Respondents

can be condensed into a sole issue which I hereby craft as follows;
“Whether the Judgment of the trial Court is not perverse, and same not against the weight of evidence.”

There can be no proper evaluation of evidence with a view of reaching a finding as to on whose side the weight of evidence is heavier without a proper understanding of the burden of proof determinable from the state of pleadings.

However, there is always a starting point, which is general, that the burden of proof in civil cases is on the plaintiff. See Sections 131, 132, 133 and 136(1) of the Evidence Act 2011. It is also trite that the plaintiff must succeed on the strength of his own case and not depend on the weakness of the defence. I refer to the following case: Aremu vs. Adetoro (2007) LPELR-546 (SC) per Tobi, JSC (p. 9 paras B – D), NAF & Anor vs. Adamu (2018) LPELR-44369 (CA), per Adefope – Okojie, JCA (Pp. 19 – 20, paras E – C).

The complaint of the Appellant is that he proved his case against the 1st – 3rd Respondents through his pleading and evidence led but that without proper evaluation of the evidence, the

trial Court made findings which is contrary to the evidence and took up some issues suo moto and resolved them without inviting Counsel or parties to address it on those issues as required by law.

A number of findings of fact were said to have been raised and resolved suo moto by the trial Court without inviting Counsel to address it on them –
Reference is made to the finding of the trial Court at page 102 lines 7 – 13 of the record of appeal.

Counsel’s contention therein is that the 1st and 2nd Respondents in their testimonies did not mention any name, and that moreover, the said Exhibit “2” tendered through the Appellant under cross – examination by Counsel to the 1st to 3rd Respondents and the evidence elicited therefrom were not supported by any averment or written deposition of any of the witnesses of 1st – 3rd Respondents.
Exhibit “2” is the original documents of the car in question. It has on it “Dana Motors Limited.”

Now paragraph 8 of the 1st, 2nd and 3rd defendants joint statement of defence avers:
8. “The defendants deny paragraphs 20 and 21 of

the claims and put the plaintiff to the strictest proof thereof, in further answer aver that the defendants are more innocent than the plaintiff as the plaintiff has follow up the case to the Nigerian police force headquarters Abuja wherein both the plaintiff and the defendants for the first time got the revelation that the car was allegedly stolen by the owners brother who brought it to Gombe with the original documents and the plaintiff bought same from the Chibuzor through the defendants car stand, the defendant shall lead evidence in that regard.”

Adamu vs. Takori & Ors (2009) LPELR-3593 (CA), (p. 25, paras D – F), Oghoyone vs. Oghoyone (2010) LPELR-4689 (CA) (Pp. 19 – 20, paras F – A).

It is therefore clear that the submission of Appellant’s Counsel that the original documents of the car (Exhibit “2”) were not pleaded is misconceived.

It is also not true that the 1st – 3rd Respondents did not adduce any evidence in support of the said Exhibit “2.” I wish on this to refer to the written statement on oath of Moses Babalabile on pages 24 – 26 of the record of appeal. It was adopted by him when he testified for the 1st – 3rd defendants (now Respondents) as DW1. See pages 70 – 71 of the record of appeal. As DW1, he deposed thus in his witness statement on oath:
“12. That original company documents of Dana Motors evidencing the purchase price of the car at Five Million, Six Hundred Thousand Naira only (N5,600,000.00) was handed over to the plaintiff and the plaintiff was aware that the car was sold to him barely 6 months after its initial purchase from the manufacturing company by the said Chibuzor Nwanma.”

Aside from the fact that there is evidence in support of Exhibit 2, there is clear statement in the evidence of DW1 that the actual seller of the car was Chibuzor Nwanma.

There is therefore clear proof that Exhibit 2 was pleaded and evidence adduced by the 1st – 3rd Respondents on the said Exhibit “2” and evidence on it elicited under cross examination is admissible, and further corroborates DW1’s evidence.

Therefore the submission of Appellant’s Counsel on Exhibit 2 is not tenable as same is totally misconceived.

I have noted the Appellant’s submission that both Appellant and the Respondents did not aver that they would lead evidence and rely on the said Exhibit “2”.

How erroneous, this submission is? What is the function of pleading, if I might ask? The answer is found in the case of Ojo vs. FBN (2013) LPELR-23515 (CA), where the Court held:
“It is without doubt that pleadings form the bedrock of any trial in a case begun by writ of summons. Speaking on the importance of pleadings, this Court in its unreported decision in CA/K/56/2010 –

Alhaji Ahmed Muktar Yusuf v. Alhaji Mamuda Maikananzir delivered on the 31st of October, 2013 stated thus: “Pleadings are the written statements of the parties in an action begun by writ, setting forth in a summary form the material facts on which each party relies in support of his claim or defence, as the case may be. They are the means by which parties are enabled to frame the issues which are in dispute between them, without embarking at that stage on the evidence which each party may adduce at trial. The system of pleadings 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 upon to adjudicate between them. It serves the two-fold purpose of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the Court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the Court will have to determine at the trial. Thus, one of the most firmly established principle of litigation is that

the parties, and the Court, are bound by the pleadings. Neither party can make out a case at the trial different from that contained on the pleadings – Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207 and Afolabi v. Western Steel Works Ltd (2012) 17 NWLR (Pt. 1329) 286. A Court too cannot set up for parties a case different from the one set up by the parties in the pleadings – Skye Bank Plc v. Akinpelu (2010) 9 NWLR (Pt. 1198) 179 and Baliol (Nig) Ltd v. Navcon (Nig) Ltd (2010) 16 NWLR (Pt. 1220) 619.”

Learned Appellants Counsel once again faults the findings of the trial Court at page 102 lines 13 to 14 of the record of appeal.

Also faulted, by the Appellant is the trial Judge’s finding at page 103 of the record. Also not spared in the spanking by the Appellant is the trial Judge’s finding at page 104 of the record of appeal.

Those findings are faulted on the basis that the issues dealt with therein were raised and resolved by the trial Judge suo moto without inviting counsel to address him on them.

In answer to this submission, Counsel to the 1st – 3rd Respondents drew the attention of the Court to the

averments in paragraphs 4, 5, 7, 8, 9, 10 and 11 of the joint statement of defence. They are facts pleaded to show that they (1st – 3rd Respondents) acted only as intermediaries on the sale of the car, negotiation of which, the Appellant was involved with the seller Chibuzor Nwanma. Also averred in those paragraphs is that the Appellant knew that they were not the owners of the vehicle as they explained the circumstances in which the seller Chibuzor Nwanma brought the car to them in search of a buyer. Also pleaded in those paragraphs is that the Appellant and them followed the case to the police Headquarters where it was revealed to them for the first time that the car was allegedly stolen by the owner’s brother who took it to Gombe with the original documents and the Appellant bought it from Chibuzor through the Respondents’ car stand.

As can be seen in the entirety of the Appellant’s statement of claim, he pleaded no fact as to the fact that he was informed that the car was that of Chibuzor Nwanma, or of his involvement directly in the transaction over the purchase of the car. He did not aver to the fact that he together with the

Respondents went to the police force Headquarters where they both were informed for the first time that the car was stolen from the real owner by his brother who took it to Gombe for sale. These averments were therefore new issues which by law, he was expected to reply to but he failed to, and must therefore be deemed to have accepted all the new issues raised. In the case Registered Trustees of the Living Christ Mission & Ors vs. Aduba & Ors (2016) LPELR-41591 (CA), the Court held:
“… Where a statement of defence in answer to an averment in the statement of claim, avers to facts that raise new material issues or facts that amount to confession and avoidance as in this case, if the plaintiff does not admit those facts, and wants to deny them, he can only do so by way of filing a reply pleading containing contrary facts. If the plaintiff does not file a reply pleading, he would be deemed by law to have admitted the new material facts in the statement of defence. See Unity Bank PLC v. Bouari (2008) 2 – 3 SC (Pt 11)1, Egesimba v. Onuzuruike (2002) 9-10 SC 1 and Obot v. CBN (1993) LPELR-2192 (SC). By not filing a reply pleading denying that the said

improvements on the fence and building of the gate were done after the death of late Mr. Osita Aduba and that thereafter the appellants had no authority to carry out such improvements, the appellants admitted the facts as true. Order 15 Rule 5(1) of the High Court (Civil Procedure) Rules 2006 provided that-“Every allegation of fact in any pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted except as against a person under legal disability.” Per AGIM, JCA (Pp. 24-25, para C)
See also Turaki & Anor vs. Sankara & Ors (2011) LPELR-9203 (CA), p. 42, paras A – D).

Flowing from the above, it is safe to hold that the Appellant was quite aware that the car sold to him was brought by Chibuzor Nwanma with whom he was involved in the negotiation and transaction for the sale of the car, he was given purchase receipt and cash/invoice and the vehicle documents which show clearly the name of Dr. Nnamdi Nwanma as the owner of the vehicle, while the person who sold the car was Chibuzor Nwanma. Both he and the 1st – 3rd Respondents were not, as far as the record before the Court shows, handed

anything or document by Chibuzor Nwanma to explain why a vehicle belonging to Dr. Nnamdi was being sold by him without authorisation by the owner.

In my view, the findings of the Court complained of by the Appellant as issues raised suo moto by the trial Judge are nothing but reasonable inferences drawn from facts on record, both in the pleadings and evidence either directly adduced or deemed accepted or conceded by reason of having not been controverted or contradicted. A Court is permitted in law to do this. In the case of Afemikhe & Ors vs. Stanbic IBTC Bank (2020) LPELR-50432 (CA), the Court held:
“The Appellants’ senior counsel is of the view that the lower Court in arriving at the decision delved into areas and matters that were not before the Court and by so doing was making a case for the Respondent. The Appellants’ senior counsel submission that the question which the trial judge posed and answered on pages 350-351 of the record in coming to the decision is outside the purview of the case before the lower Court is not correct in my view. Raising that question and answering same with due respect to learned silk does not amount to

assisting any of the parties or going outside the purview of the case or the matter before the lower Court. In this respect, I find the case of Ikenta Best (Nigeria) Ltd vs. Attorney General River State (supra) cited by Respondent counsel very instructive. The apex Court held: “A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.” The question is whether the Respondent failed to remove the report to the CBN standing against the Appellants. This is the basis of the action against the Respondent in this suit. It is the failure to execute the deed of release over the property and the alleged damages the Appellants suffered for the bad credit history made by the Respondent

against the Appellants to CBN that led to the institution of this action. It therefore stands to reason that any issue that relates to the cause of action cannot be said to be an issue raised suo motu by the Court. While the principle of the law that a Court cannot raise and resolve an issue suo moto but a Court need to look closely at what issues in an action can be said to be raised suo moto. Where counsel to a case either based on his strategy in the case decides not to deal with an issue which naturally arising from the cause of action and a Court while writing the judgment delve into that issue, it will not in my opinion on the authority of the case cited above amount to the Court raising the issue suo moto. This is because, a Court in its judgment should not be limited only to the argument of counsel or to the cases cited by counsel. A Court has the right to go to cases and statutes not provided by the counsel to the parties and even expand the argument on issues arising from the cause of action. I make bold to say that the lower Court did nothing wrong in my view in raising the question and determining same. This is more so that the parties in their

pleadings recognized the issue of the report made to the CBN as a major issue in this case.” Per TOBI, JCA (Pp. 36-39, paras. E-B).

Apart from the complaint of the Appellant that the trial Judge suo moto raised and resolved issues that he pointed to in the Judgment in his brief of argument without inviting counsel to address him on it (a submission, I have on the pleading and evidence on record rejected), he also accused the trial Judge, either of bias or improper evaluation of evidence.

Counsel has quite correctly outlined the procedure for evaluation of evidence, and what it actually entails, in the case of Okoh vs. Nigerian Army (2018) 6 NWLR (Pt. 1614) 176 at 188 paras A – C, per Eko JSC. Simply put, evaluation of evidence entails the trial Judge examining all evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side appears to outweigh the other. See Lafia Local Government vs. Executive Governor, Nasarawa State & Ors (2012) LPELR-20602 (SC), page 23, paras E – F.

The alleged improper evaluation is predicated on counsel’s misconceived view that the

issues on which the findings complained of were made were raised suo moto without their inputs as counsel. I have faulted that view and can state without fear of contradiction that the evaluation and findings reached by the trial Judge was from pleaded facts which were supported by legally acceptable evidence. If I may recap on the evaluation undertaken by the trial Judge, the following stand out very clearly: – Even though the car receipt and invoice bear the business name of the 1st and 2nd Respondents, the Appellant was involved in the purchase of the car, and the 1st and 2nd Respondents only facilitated the sale. The Appellant knew that the car did not belong to the 1st – 3rd Respondents but to Chibuzor Nwanma who brought it to Gombe and sought the assistance of the 1st – 3rd Respondents for its disposal by way of sale. The car was only 6 months old at the time of sale since the date of manufacture and was sold to the Appellant at N2.8m against its original price of N5.6m. The original vehicle document handed over to the Appellant boldly bears the name, Dr. Nnamdi Nwanma was sold by Chibuzor Nwanma without written authorisation by the real owner, and

yet neither the Appellant nor the Respondents bothered to ask questions to satisfy themselves that the vendor had the authority to sell. Or if they did ask questions none of them has pleaded those facts affect and testified to that effect. At the force headquarters at Abuja, both the Appellant and the 1st and 2nd Respondents were informed for the first time that the vehicle was stolen by the owner’s brother, which implies that the car was stolen by Chibuzor Nwanma and brought to Gombe to be sold. Now looking at the age of the car, and the price at which it was sold, coupled with the fact that the original document bears a name other than that of the person who claimed be the owner, if the Appellant and the 1st and 2nd Respondents were vigilant and bothered to investigate, the Appellant would only not have fallen into this quagmire but perhaps, the thief would have been apprehended. This of course is a reasonable inference to draw from the available facts and evidence on record. The foregoing are clearly the facts and reasonable inferences the trial Judge drew from in his evaluation to arrive at the findings complained of by the Appellant. His submissions

are clearly not acceptable. I find no legal basis to fault the trial Judge’s finding.

However, if there is a finding that I fault, it is the trial Judge’s finding in which out of sympathy he decided to share the value of the deprecated value of the car between the Appellant and the 1st to 3rd Respondents, after finding that the Appellant failed to prove all his claims. It is trite law that the proper order to make when a plaintiff fails to prove his case is one of dismissal. See the following cases on the point: Uzochukwu & Ors vs. Eri & Ors (1997) LPELR-3454 (SC) (Pp. 38 – 39, paras F – A), Ogbechie & Ors vs. Onochie & Ors (1988) LPELR-2277 (SC), (p. 43, paras B – E), Omerede vs. Eleazu & Ors (1996) LPELR-2637 (SC) (p.19 paras D – E).

It is settled law that sympathy and sentiments has no place in law jurisprudence: See Munir vs. FRN (2020) LPELR-50783 (CA), (Pp. 25 – 28, paras D – A), Poatson Graphic Arts Trade Ltd & Anor (2017) LPELR-42567 (CA), Pp. 46 – 48, para C, Liman vs. Mohammed (1999) LPELR-1783 (SC).

To sum up on whether the Appellant proved his case to

entitle him to Judgment, I cannot but fall back on the findings of the lower Court at page 102 lines 13 to 24 and page 103 of the record. The finding therein are that:-
(i) The Appellant through the Respondents purchased a brand new vehicle only six months old which original price was N5, 670, 000 and was sold at N2, 800, 000.00 less than half the price.
(ii) The documents of title showed that the owner of the vehicle was Dr. Nnamdi Nwanma but sold to them by a person who was not the owner without the authorisation in writing or other wise of the actual owner.
(iii) There was a revelation to the Appellant and the 1st and 2nd Respondents at the police Headquarters at Abuja that the vehicle was stolen by the owner’s brother and brought to Gombe for sale.
These established facts proved quite convincingly that the Appellant cannot in the circumstances be an innocent purchaser for value because with more vigilance he could have known that there was title defects in the seller. The concept of bonafide purchaser for value was explained in the case of Mohammed vs. Mohammed & Anor (2011) LPELR-3729 (CA), where the Court held:

“Indeed the whole basis of the equitable principle of bona fide purchaser for value without notice is to protect a purchaser from the fraud of his vendor per Mbanefo F. J. in the case of OMOSANYA v. ANIFOWOSHE (1995) 4 FSC Pg.94 at 99. The rule is that, if a purchaser fails to investigate title at all, he is fixed with constructive notice of everything that he would have discovered had he investigated the whole title. See also ODUNUKWE v. ADMINSTRATOR GENERAL (1978) 1 SC 25 at Pg 30 per Obaseki JSC. In this case, the Appellant never consulted with the 1st Respondent before the purchase. He merely acted on the presumption that “all was well” and the representation made to him by the 2nd Respondent. In the case of ANIMASHAUN V. OLOJO (1990) 6 NWLR Pt.154 111 at 122-123 per Obaseki JSC explicitly dealt with the issue of ‘notice’ where the three types of Notices were defined as follows: 1. Actual Notice: a person has actual notice of all facts of which he has actual knowledge however that knowledge was acquired. 2. Constructive Notice: the Court of chancery insisted that a purchaser should inquire about equitable interests with no less diligence than about legal interest

which they could ignore at their own peril. 3. Imputed Notice: if a purchaser employs an agent, any actual or constructive notice which the agent receives is imputed to the purchaser. The fact of the matter here is that the Appellant had acquired interest from the 2nd Respondent before the 1st Respondent took the matter to Court. There is conflicting evidence about whether or not the Appellant had notice of the fact that the 1st Respondent was unhappy with the performance of the contract before he bought the property from the 2nd Respondent. The evidence suggests lack of notice or knowledge of the controversy rather than the legal interest of the 1st Respondent. In BISHOPSGATE MOTOR FINANCE CORPORATION LTD v. TRANSPORTS BREAKS LIMITED (1949) 1 All E. R. 37 at Pg 45; (1945) 1 K. B 322 at 336 where Lord Denning stated: “In the development of our law, two principles have striven for mastery. The first is the protection of property, no-one can give a better title than he himself possesses. The second is the protection of commercial transactions the person who takes in good faith and for value without notice should have good title.” Per OGUNWUMIJU, JCA (Pp. 56-57, paras. A-E)

See also the case of Ohiaeri vs. Yussuf & Ors (2009) LPELR-2361 (SC), (p. 21, paras B – D).

Perhaps, depending on the circumstances, the Appellant might have qualified as an innocent purchaser for value if he was not involved in the transaction but same was wholly carried out by the 1st – 3rd defendants who failed to exercise due caution and necessary investigation to satisfy themselves of the title of the seller.

Therefore I have no doubt that the Appellant did not prove his claims at the lower Court, and therefore his claims ought to have been dismissed. It is therefore without difficulty that I resolve the two issues against the Appellant and in favour of the Respondent.

In his closing and concluding submission, Counsel to the Respondent urged this Court to dismiss the appeal and to make a consequential order dismissing the plaintiffs suit as same was found not to have been proved.

I do not want to believe that counsel is serious in his submission for consequential order dismissing the Appellant’s suit in toto.

This prayer, to my mind is their expression of dissatisfaction with the aspect of the

Judgment of the trial Court that ordered them – (1st – 3rd Respondents) to share the depreciated value of the car with the Appellant.

Now, an appeal is not a new action but a continuation of the matter which is the subject of appeal. It is a complaint against the lower Court. Therefore if the Respondents were not satisfied with this aspect of the Judgment, they ought to have filed a cross appeal. Having not done so, they lack the locus to urge anything in their favour, except to support the Judgment.

Having said that, I conclude this appeal by stating the obvious; which is, that the appeal is completely devoid of merit and is hereby dismissed. In consequence, the Judgment of the trial Court delivered by Hon. Justice Paul Idi Appollos on 11th October, 2018 in Suit No. GM/09/2017 is hereby affirmed.
No order as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the Judgment of my Lord Abundaga, J.C.A. in this Appeal. I respectfully agree. His Lordship has comprehensively discussed all the valid issues submitted for the determination of the Appeal. I do not therefore need to repeat them. I will just make a few

comments on the issue of a bona fide purchaser for value.

‘Bona fide’ is defined as ‘in good faith’, honestly, without fraud, collusion, or participation in wrong doing’. Value means any consideration in money or money’s worth. Thus, a bona fide purchaser for value is one who has purchased property for valuable consideration without notice of any prior right or title which, if upheld, will derogate from the title which he has purported to acquire – Best Nig. Ltd V Blackwood Hodge (Nig.) Ltd (2011) 776 (SC) 28, D-E, per Fabiyi, JSC; Animashaun V Olojo (1990) LPELR-491(SC) 17, B-E, per Obaseki, JSC.
From the facts of the case on Record, it is evident that the Appellant certainly was not a bona fide purchaser for value without notice because all the pointers were there which would have enabled him to ascertain whether or not the vehicle in question was stolen, or that it actually belonged to Chibuzor Nwanma who sold it to him through the 1st to 3rd Respondents. It turned out that the vehicle was actually stolen from its owner, Dr. Nnamdi Nwanma but sold by his brother, Chibuzor Nwanma. The Appellant neglected to ensure

that the vehicle had no defects in its title. He must therefore bear the consequences or the brunt of his actions. The findings of the learned trial Judge on this cannot be assailed.

Consequently, I also dismiss the Appeal. I abide by the consequential Order made therein.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I read in draft form, the judgment just delivered by my learned brother ABUNDAGA JCA, I agree with his reasoning and conclusion. The word “Caveat Emptor”, let the buyer beware, is the latin maxim for persons dealing in property. The risk of encumbrances is on a purchaser who must satisfy himself by a full investigation of title before completing his purchase.
A purchaser would be able to plead absence of notice only if he had made all the usual and proper inquiries and still found nothing to indicate the equitable interest. Per Sankey JCA in Yaro VS. Manu (2014) LPELR-24181.
Can it be said that the Appellant did his due diligence in this purchase? I think not as the title documents of the car had a different name with that of the supposed vendor. If the Appellant asked the right questions he would have at least had an insight

to the fact that the difference in name should be a red flag.
I believe the Appellant chose to ignore the difference in the title documents and the name of the vendor. If he chose to ignore the red flag then he cannot claim to be innocent purchaser without notice. See Onyido vs. Ajemba (1991) 4 NWLR pt. 184 pg. 203.

For this and the more robust reasoning in the lead judgment, I find the appeal devoid of merit. It is dismissed. I also affirm the judgment of the lower Court.

Appearances:

Habu Abdu, Esq. with him, Amina Abubakar and U. C. Anthony For Appellant(s)

Benjamin Sati, Esq. with him, J. W. Nimfas Esq. – for the 1st – 3rd Respondents.
4th Respondent not represented. For Respondent(s)