CRUSHED ROCK INDUSTRIES (NIG) LTD v. OKEKE
(2022)LCN/16306(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, August 25, 2022
CA/ABJ/CV/34/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
CRUSHED ROCK INDUSTRIES (NIG) LTDAPPELANT(S)
And
CHIEF O. C. OKEKE (Carrying On Business In The Name And Style Of OK Contact Point Holdings)RESPONDENT(S)
RATIO:
THE ISSUE OF JURISDICTION MAY BE RAISED BY THE PARTIES OR THE COURT AT ANY STAGE OF THE PROCEEDINGS
Representing the general dominant judicial space on the one hand is the trite legal position that jurisdiction as the pillar upon which an entire suit rests may be raised by the parties or indeed even by the Court itself at any stage of the proceedings and in whatever manner. This position is solidly built upon a long line of judicial authorities. See Madukolu vs. Nkemdilim (1962) 1 SCNLR 341, Petrojessica Enterprises Ltd a Anor vs. Leventis Technical Co. Ltd(1992) LPELR – 2915 (SC), Sulumade vs. Kuti (2021) 1 NWLR (Pt. 1810), 31 at 60-61 paras. G – D. BATURE ISAH GAFAI, J.C.A
A SPECIAL DEFENCE MUST BE SPECIFICALLY PLEADED BY A DEFENDANT
Yet again however, is the equally settled position of the law developed and entrenched through a long legion of judicial authorities without contradicting the former to the effect that a special defence such as the one under Section 7 of the Limitation Act which limits the period within which a Plaintiff may seek redress must however first be specifically pleaded by a Defendant. See Shitta-Bey vs. Federal Service Commission (1981)1 SC, 40, lshola Balogun Ketu & Anor vs. Chief Wahabi Onikoko (1984) 10 SC 265 at 267 – 268, Odubeko v. Fowler & Anor (1993) LPELR – 2235 (SC), Chigbu vs. Tonimas Nig. Ltd & Anor(2006)LPELR – 846(SC), Federal University of Technology Minna Ors vs. Dr. (Mrs) Adaeze G. N. C. Okoli (2011) LPELR- 9053 (CA), Obatunga & Anor vs. Oyebokun & Ors (2012) LPELR – 22344 (CA), Dambo vs. Waziri &Ors (2014) LPELR – 23983 (CA). BATURE ISAH GAFAI, J.C.A
RULES ARE MEANT TO BE OBEYED ELSE CHAOS WILL REIGN OVER CERTAINTY AND PREDICABILITY IN JUDICIAL PROCEEDINGS BEFORE THE COURT
The rules are meant to be obeyed else chaos will reign over certainty and predictability in judicial proceedings before that Court. A party before it, has no right of choice to proceed in an aura of manifest disregard to those rules, as demonstrated by the Appellant’s arguments under the Issue at hand which totally ignored those provisions. Judicial pronouncements of both the Apex Court and this Court are replete with this position. See MC Investment Ltd & Anor vs Core Investments & Capital Markets Ltd (2012) LPELR – 7801 (SC), lmunze vs. FRN (2014) LPELR – 22254 (SC), Oforkire & Anor vs. Madueke &Ors (2003) LPELR 2269 (SC), Chime & Anor vs Ude & Ors (1996) LPELR – 848 (SC), Usman vs Tamadena & Co. Ltd &Ors (2015) LPELR – 40376 (CA), Mainstream Bank Ltd vs. Royal Mortgage Finance Ltd & Anor (2014) LPELR – 24525 (CA), Access Bank vs. Adesoye Holdings Ltd & Ors (2016) LPELR – 40428 (CA).
In effect, the Appellant’s plea of Limitation Act as a special defence in the manner raised only in his Final Written Address in the trial was incompetently raised ab initio. BATURE ISAH GAFAI, J.C.A
THE APPLICABILITY OF LIMITATION LAW OR LIMITATION PERIOD BETWEEN PARTIES
It appears that for reasons connected with the health of the Plaintiff, the matter could not then progress, resulting in its being struck out for want of diligent prosecution. But then, the same action which had been struck out, has been reinstituted in this present suit. Now, as to the applicability of limitation law, and thus of the suit being statute-barred, the law has now been settled that in so far as a suit is pending between parties, the limitation period shall not count for· that period … See Sifax Nigeria Ltd v. Migfo Nigeria Ltd (2018) SC.417 /2015 (2018) 9 NWLR (Pt.16-23) 138. Therefore, for the period between 21/10/11 to 11/09/15 when Suit No: FHC/ABJ/CS/139/2012, was pending between the parties from this Court to the Court of Appeal and back to this Court, the period of limitation was frozen. Therefore, this suit having been reinstituted on 11/09/15, being a period of just 16 months (calculating from 12/05/14 when decision on the appeal was delivered) from when the original Suit No: FHC/ABJ/CS/139/2012 was struck out, in my view does not fall FHC/ABJ/CS/139/2012was struck out, in my view does not fall outside the limitation period and therefore is not statute-barred as claimed by the Defendant’s counsel.”
See pages 363 to 365 of the Record. BATURE ISAH GAFAI, J.C.A
BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Federal High Court Abuja delivered on the 2nd of December, 2020 in Suit No. FHC/ABJ/CS/757/2015 coram Dimgba, J. in which the Respondent’s declaratory and allied claims for beneficial interest in a Quarry lease no. FCT/QLS.1057 were granted against the Defendant, now Appellant
Peeved by the judgment, the Appellant approached this Court vide a Notice of Appeal filed on the 10th of December, 2020 which however, by leave of this Court, was amended and deemed properly filed on the 7th of June, 2022.
As gleaned from the Record of Appeal transmitted to this Court on the 18th of January, 2021, the entire Suit giving rise to this appeal was, in simple words, a case of a promising business relationship that had gone sour, resulting instead, into bitter mutual claims and accusations between the hitherto friendly parties in it; namely the Appellant and the Respondent. The Respondent claimed that after he was granted a Quarry lease No. FCT/QLS.1057 in December 1981, he approached one Mr. Westphall; a German who indicated readiness to partner with the Respondent through the Appellant’s company to develop and exploit the Quarry on the terms that the Appellant was to procure equipment for the exploitation of the quarry, retain all profits from the exploitation up to the sum of one hundred million naira to cover its costs and other outgoings and thereafter the business shall proceed on the basis of a profit sharing formula of 60% and 40% to the Respondent and the Appellant respectively. The Respondent claimed however that without his knowledge, the Appellant converted the Quarry lease to itself upon a false claim of an alleged assignment of same by the Respondent in favour the Appellant; upon which the Respondent’s title to the lease was transferred by the Federal Ministry of Mines and Power to the Appellant. The Respondent claimed that he was not aware of this fact as the business had continued without incidence. Somehow, along the line, the Respondent discovered the fact of the said assignment and other associated facts which altogether prompted the Suit at the Court below where he claimed for:
“i. A DECLARATION that the Plaintiff is vested with beneficial interest in the Quarry originally licensed as FCT/QLS.1057 by the Federal Ministry of Mines and Power since 22nd day of May, 1980 howsoever known or described thereafter.
ii. A DECLARATION of title over the Quarry originally licensed as No FCT/QLS.1057 lying and situate at Mpape, Federal Capital Territory, Abuja.
iii. A DECLARATION that the beneficial interest in the Quarry originally licensed as FCT/QLS.1057 was not assignable in the manner contended by the Defendant and/or at all under the relevant laws in force.
iv. An ORDER of perpetual injunction restraining the Defendant or its agents from further acts of trespass.
v. AN ORDER for Accounts to be taken.”
See pages 3 to 31 of the Record.
The Appellant joined issues with the Respondent, denying the Respondent’s key facts more particularly on the vexed assignment of the Quarry lease. In specific terms, the Appellant claimed that by a signed written agreement sometime in 1980, the Respondent agreed to assign its interests in the Quarry leases numbers 1072, 10751, 10721, 10719, 10766, 10765, 10750, 10749 and 11505 – 11507 for a consideration of five hundred thousand naira paid to the Respondent by the Appellant. After so much hustle in the Appellant’s bid to process the assignment of the Quarry leases, as the Appellant narrated, it was finally granted Quarrying Lease No. FCT/QLS.1057 in its own name on the 7th of December, 1981 which was subsequently also registered in 1985. Instructively, the Appellant denied ever entering into any partnership with the Respondent. The Appellant also recounted its ordeal with the Nigeria Police Force at the instance of the Respondent but which however the preliminary investigations commenced by the Police revealed the untruths in the Respondent’s claims; which the Respondent thereafter abandoned and approached the lower Court, ignoring also to join the Mining Cadastra Off ice which granted the Respondent his Quarrying leases.
The Suit was heard through two witnesses for the Respondent and a lone witness for the Appellant. Nine documents were admitted in evidence for the Respondent while thirty were admitted for the Appellant. At the end of it all, the lower Court in its judgment ordered thus:
“1. I grant reliefs (i) – (v) and (vi) of the Plaintiff’s claims.
2. I refuse relief (v), which is concerned with trespass. An invitee such as the Defendant cannot be liable for trespass for the period when his stay has not been legally terminated.”
See pages 189 to 211, 378 to 379 of the Record.
Thus, in the Amended Notice of Appeal, the Appellant complains that:
“(I) GROUND ONE: ERROR OF LAW:
The Learned Trial Judge erred in law when he refused to uphold the Defendant/Appellant’s submissions and prayers to decline jurisdiction to hear and determine the matter on the ground that the suit is statute barred.
(II) GROUND TWO: ERROR OF LAW:
The Learned Trial Judge erred in law, and which occasioned a grave miscarriage of justice, when he held that an agreement relating to management of Quarry Lease can be made orally by the parties.
(III) GROUND THREE: ERROR OF LAW:
The Learned Trial Judge erred in law when he held thus at:
“I find it odd that on a matter as crucial as this for the Defendant, the only witness they could provide to contradict the Plaintiff’s case was DW1 who was not yet in the services of the Defendant between 1981 and 1985 when most of the issues in contention in this suit arose DW1 in his own testimony is in his 28th year in the service of the Defendant as at when he gave evidence in this case, meaning that he joined the Defendant around 1992, more than ten (10) years after the Plaintiff and the Defendant had started their relationship relating to the subject matter”.
(IV) GROUND FOUR: ERROR OF LAW:
The Learned Trial Judge erred in law when he granted Relief v in the Writ of Summons which had been abandoned or deemed abandoned by the Plaintiff in the Statement of Claim filed on 2015.
(V) GROUND FIVE: ERROR OF LAW:
The learned trial judge erred in law when he purported to grant a relief not asked for at all by the Plaintiff/Respondent as it relates to the Appellant’s landed property.
(VI) GROUND SIX: ERROR OF LAW:
The judgment of the trial Court is against the weight of evidence presented before the Court by both parties.”
The particulars enumerated under these grounds are noted.
The Appellant’s Brief of Argument settled by its learned counsel Chief Nnachi O. Egwu was filed on the 3rd of March, 2021 but deemed properly filed on the 7th of June, 2022, while the Respondent’s brief settled by his learned counsel Uzoanya Kelechi was filed on the 15th of September, 2021 but deemed properly filed also on the 7th of June, 2022 along with the Appellant’s Reply Brief filed on the 4th of February, 2022.
Five issues for determination are formulated in the Appellant’s brief on:
“1. Whether by the extant laws regulating the subject matter, Suit No. FHC/ABJ/CS/757/2015 filed by the Respondent on 11th September, 2015 at the lower Court is not statute barred. (distilled from Ground One).
2. Whether an agreement relating to land, especially an alleged partnership agreement or assignment or management of a quarry lease, can be validly made orally by the parties thereto. (formulated from Ground Two).
3. Whether the Appellant, being a corporate entity and a juristic person, is bound to call as witnesses only those of its agents or officers that personally took part in the transactions involving the corporate entity. (formulated from Ground Three)
4. Whether a Court of law can grant a relief voluntarily, abandoned or deemed abandoned by the Plaintiff in the Statement of Claim.(Distilled from Ground Four).
5. Whether the judgment of the trial Court was not against the weight of evidence presented at the lower Court. (Formulated from Ground six).”
In the Respondent’s view however, the entire appeal is determinable on two issues; namely:
“1. “Whether the lower Court retained Jurisdiction to hear and determine this case as constituted.
2. Whether the lower Court was right in granting the reliefs sought by the Respondent.”
While the Respondent’s arguments under his first issue are a wholistic response to the Appellant’s first to fourth issues, the Respondent’s second issue is on the Appellant’s fifth Issue. While the Respondent’s counsel is correct that the appellant’s six issues can be determined under the Respondent’s two issues, I have nonetheless chosen to determine the Appellant’s issues in the order formulated by the Appellant, for ease of understanding of distinct resolutions on same herein.
Needless to say but for the record, I have read the entire judgment that is the subject of this appeal as contained at pages 341 to 379 of the record as well as the arguments canvassed under the above respective issues.
Owing to its decisive, drastic effect as vehemently argued, the Appellant’s first jurisdictional Issue on whether or not the Respondent’s Suit is statute barred has obviously attracted our immediate attention here. As argued by the Appellant’s counsel, the suit was statute barred under the provisions of Section 7 of the Limitation Act 2007 being an action brought after a period of more than six years from the date of the accrual of the cause of action. The main argument here is that notwithstanding the Respondent’s pleadings and evidence establishing the commencement of the Suit well after six years from the date of the accrual of the Respondent’s cause of action, the lower Court proceeded in error when it held that it was unclear at what time the Respondent’s cause of action arose. Learned counsel referred to the decisions in Adeosun vs. Jibesin (2001) 11 NWLR, (Pt. 724), 290 at 314, INEC vs. Ogbadibo L. G. (2016) 3 NWLR (Pt. 1498), 167 at 197 to buttress the trite legal position on this issue to the effect that no legal proceedings can be validly instituted after the expiration of the period limited under the Act. The long and short of it all, as argued, is that the Respondent’s Suit is caught up by the provisions of Section 7 of the Limitation Act.
Naturally, the Respondent has argued in the contrary and vehemently too, that it is illogical to construe his cause of action as one that arose earlier than the time he became aware of it, regardless for how long it had ensued prior to his discovery. Specifically, it is argued that the reference by the Respondent to the period between 1980 and 1990 is in respect of the period in which the Appellant did the acts he is complaining about, not the period he discovered same and thus his cause of action could rationally only accrue from the latter period. Just as done by his learned friend for the Appellant, the Respondent’s counsel too referred to isolated portion of the judgment to buttress his arguments on the issue.
As I stated, the foregoing represents only a fair summary of their arguments but their entirely is noted.
Unlike both learned counsel who embarked straight away into analysis and submissions on their perceived relevant oral evidence on the issue in the trial, I have begun my search for facts on it primarily from the Respondent’s pleadings then as the Plaintiff in the Suit. I have read it carefully as found at pages 2 to 32 of the Record. As if that was not enough, I proceeded (more particularly for reasons that will become clear shortly) into equal study of the Appellant’s pleadings as well, as found at pages 189 to 211 of the Record.
As I pondered over the pleadings, I developed, instead, a creeping feeling that there is a more fundamental, foundational issue to it all but which somehow escaped the attention of both learned counsel and the lower Court itself. I read the entire bulky record again, this time in specific search of answer to my fears. Sadly, in an unusual twist, I refocused my attention a lot more in the pleadings of the Appellant because it is the only hope to the solution. It is those pleadings that should provide clear and specific facts in answer to the resolute provisions of Order 13 Rule 6 of the Federal High Court (Civil Procedure) Rules 2019 which stipulates that:
“6-(1) A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which if not specifically pleaded might take the opposite party by surprise.”
The proceedings in the suit ensued under those rules. Indeed, the Appellant’s Final Written Address in which the statute of limitation was raised was filed under those rules. Sadly, however, a meticulous study of the Appellant’s pleadings in the Suit revealed that it was neither specifically pleaded nor even impliedly hinted that the Respondent’s suit was statute barred. Interestingly though, the Appellant did file a Notice of Preliminary Objection found at pages 83 to 92 of the record. At pages 93 to 100 is the Appellant’s lengthy Written Address on its Notice of Preliminary Objection. Ditto pages 107 to 131 of the record containing also the Respondent’s Counter-Affidavit and Written Address as well as the Appellant’s Written Address all on the Preliminary Objection. At pages 132 to 149 of the record is the lower Court’s ruling on the Appellant of Notice of Preliminary Objection. The Appellant lodged an appeal to this Court against the ruling. At pages 150 to 172 of the record is the judgment by this Court on the Appellant’s Appeal. In all these processes through all the long journey of the proceedings on the Appellant’s Notice of Preliminary Objection, there is not a single sentence or even a word claiming or suggesting any inference by the Appellant or the two Courts to the Statute of Limitation as a defence to the Suit.
As eminent and prodigious almost to the point of reverence a plea of absence of jurisdiction is in judicial litigation, it is yet paradoxically the cheapest and commonest misconstrued and misapplied preliminary issue in many trial Courts, resulting often times in erroneous, unjust dismissal of competent suits as well as adjudication on otherwise incompetent suits resulting into grant of valuable, costly reliefs unjustly.
Representing the general dominant judicial space on the one hand is the trite legal position that jurisdiction as the pillar upon which an entire suit rests may be raised by the parties or indeed even by the Court itself at any stage of the proceedings and in whatever manner. This position is solidly built upon a long line of judicial authorities. See Madukolu vs. Nkemdilim (1962) 1 SCNLR 341, Petrojessica Enterprises Ltd a Anor vs. Leventis Technical Co. Ltd(1992) LPELR – 2915 (SC), Sulumade vs. Kuti (2021) 1 NWLR (Pt. 1810), 31 at 60-61 paras. G – D.
Yet again however, is the equally settled position of the law developed and entrenched through a long legion of judicial authorities without contradicting the former to the effect that a special defence such as the one under Section 7 of the Limitation Act which limits the period within which a Plaintiff may seek redress must however first be specifically pleaded by a Defendant. See Shitta-Bey vs. Federal Service Commission (1981)1 SC, 40, lshola Balogun Ketu & Anor vs. Chief Wahabi Onikoko (1984) 10 SC 265 at 267 – 268, Odubeko v. Fowler & Anor (1993) LPELR – 2235 (SC), Chigbu vs. Tonimas Nig. Ltd & Anor(2006)LPELR – 846(SC), Federal University of Technology Minna Ors vs. Dr. (Mrs) Adaeze G. N. C. Okoli (2011) LPELR- 9053 (CA), Obatunga & Anor vs. Oyebokun & Ors (2012) LPELR – 22344 (CA), Dambo vs. Waziri &Ors (2014) LPELR – 23983 (CA).
Needless to say, the provisions of Order 13 Rule 6 of the Federal High Court Rules (supra) in particular and indeed the entire rules are not merely ornamental or advisory but validly prescribed proceduralstipulations each and all of which are aimed at orderliness and fairness in the discharge of that Court’s mandate. The rules are meant to be obeyed else chaos will reign over certainty and predictability in judicial proceedings before that Court. A party before it, has no right of choice to proceed in an aura of manifest disregard to those rules, as demonstrated by the Appellant’s arguments under the Issue at hand which totally ignored those provisions. Judicial pronouncements of both the Apex Court and this Court are replete with this position. See MC Investment Ltd & Anor vs Core Investments & Capital Markets Ltd (2012) LPELR – 7801 (SC), lmunze vs. FRN (2014) LPELR – 22254 (SC), Oforkire & Anor vs. Madueke & Ors (2003) LPELR 2269 (SC), Chime & Anor vs Ude & Ors (1996) LPELR – 848 (SC), Usman vs Tamadena & Co. Ltd & Ors (2015) LPELR – 40376 (CA), Mainstream Bank Ltd vs. Royal Mortgage Finance Ltd & Anor (2014) LPELR – 24525 (CA), Access Bank vs. Adesoye Holdings Ltd &Ors (2016) LPELR – 40428 (CA).
In effect, the Appellant’s plea of Limitation Act as a special defence in the manner raised only in his Final Written Address in the trial was incompetently raised ab initio.
In any case, a closer look at the Respondent’s pleadings will further compound the Appellant’s reliance on the plea of Limitation Act. Firstly, as summarised earlier, the Appellant’s contention on the period at which ·the Respondent’s cause of action arose is that it was between 1980 to 1990. The Respondent’s argument to the contrary has similarly been summarised earlier. As stated earlier also, both learned counsel quoted only a few findings of the lower Court on this issue which altogether neither sufficiently presented the several related findings of the lower Court nor revealed its reasonings on same. The full relevant portion is reproduced here thus:
“The Defendant’s basis for this claim is the belief that the cause of action arose between 1980 and 1990, and from that time to 2015 when this suit was filed, the period of 6 years under the limitation laws for bringing suits for breach of contract had elapsed. I have carefully examined the Statement of Claim and note that it is not clear in it what time the Plaintiff became aware of the alleged conversion of his quarry tease by the Defendant which gaverise to the cause of action for this suit. But it would appear that the parties were quite comfortable in their relationship and there were no issues until the Plaintiff felt that the Defendant had shut him out of the business of the exploitation of the quarry lease which he believed that they had an existing partnership on. When things were rosy between the parties … and the Plaintiff allowed the Defendant to operate the quarry lease as well as see to its renewal, there was really no real controversy between the parties about whose name was on the quarry lease. It was when the Plaintiff felt uncomfortable and agitated with the way he considered that he had been shut out by future managers of the Defendant company, different from those that he had entered into the historic collaboration as far back as the early 1980s, that he then caused his solicitors to make demands, and by Exhibit COC37, which is a letter dated 21/10/11, the Plaintiff’s solicitors did write to the Defendant to outline the Plaintiffs complaints and frustrations and made demands for correction … The failure to get redress then led to the institution of Suit No:FHC/ABJ/CS/139/2012… This suit resulted in a decision issued concerning a challenge to the jurisdiction of the Court, which decision as earlier stated was affirmed by the Court of Appeal, directing that the matter go back to this Court whose jurisdiction was affirmed for continuation of the hearing. It appears that for reasons connected with the health of the Plaintiff, the matter could not then progress, resulting in its being struck out for want of diligent prosecution. But then, the same action which had been struck out, has been reinstituted in this present suit. Now, as to the applicability of limitation law, and thus of the suit being statute-barred, the law has now been settled that in so far as a suit is pending between parties, the limitation period shall not count for· that period … See Sifax Nigeria Ltd v. Migfo Nigeria Ltd (2018) SC.417 /2015 (2018) 9 NWLR (Pt.16-23) 138. Therefore, for the period between 21/10/11 to 11/09/15 when Suit No: FHC/ABJ/CS/139/2012, was pending between the parties from this Court to the Court of Appeal and back to this Court, the period of limitation was frozen. Therefore, this suit having been reinstituted on 11/09/15, being a period of just 16 months (calculating from 12/05/14 when decision on the appeal was delivered) from when the original Suit No: FHC/ABJ/CS/139/2012 was struck out, in my view does not fall FHC/ABJ/CS/139/2012was struck out, in my view does not fall outside the limitation period and therefore is not statute-barred as claimed by the Defendant’s counsel.”
See pages 363 to 365 of the Record.
I believe any ambiguity or misconceptions created in the treatment of this issue by both learned counsel is now erased. More importantly however, it is impossible to disagree with the dispassionate, balanced and proper evaluation of the evidence of both parties on same. With respects, it would have been illogical and perverse for the lower Court to arrive at any finding differently.
In UBA Plc Vs. BTL Industries Ltd (2006) LPELR – 3404 (SC), the Supreme Court in restating on how to compute from when time begins to run for a cause of action to be statute barred held thus:
“In considering whether an action is statute-barred, it is relevant to ask, ‘when does time being to run’? This Court, in the case of Fadare & Ors V. Attorney General, Oyo State(1982) NSCC 52 at 60 referred to the case of Board of Trade v. Cayzer, Irvine Land Co. Ltd. (1927) A. C. &10 where it held that:
‘Time therefore begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to success.’
It is crystal clear from the facts of this case and that the respondent had not become aware of the wrong entries in his accounts until in 1980/81. That being the case, the right of action accrued when the respondent’s demand to have his account credited was denied and refused, and this happened in 1980/81. The claim of the respondent is not therefore statute- barred.”
Thus, it must be emphasized that the plaintiff would not reasonably file any suit against the defendant bank as long as it was assuring the plaintiff that its bills were being processed by the Central Bank. Indeed, there would be no cause of action as at that time.”
That is exactly what the Respondent’s pleadings before the lower Court disclosed. The Respondent could not be rationally expected to commence a suit when he had not the slightest idea or reason to commence one.
Furthermore, from the Respondent’s pleadings, more particularly those in paragraphs 10 to 14 of the Statement of claim, it is crystal clear that the main reason for instituting the suit is on the Respondent’s allegations of forgery and fraud against the Appellant; by which it claimed in the main that the Appellant had:
“10… without his knowledge, consent and/or approval masterminded the conversion of his Quarrying Lease No. FCT/QLS/1057 to their sole name and benefit and falsely claimed an alleged assignment of the said Quarry to them by the Plaintiff … ”
The entire reliefs claimed by the Respondent in the Statement of Claim are on or revolve around these facts; the thrust of which altogether is the allegation of forgery. It is settled law also that a statute of limitation does not apply in cases involving fraud until when the fraud itself is detected. See Elukpo vs. lbrahim & Ors (2013) LPELR – 20235 (CA).
In effect, the lower Court is correct when it rejected the Appellant’s plea of special defence on the Limitation Act and thus assumed jurisdiction properly onthe Respondent’s claims in the suit.
In consequence of the foregoing, the Appellant’s first issue along with the Respondent’s similar first issue are resolved against the Appellant.
The Appellant’s second issue, it may be recalled, questions the decision of the lower Court when it held that there was a valid agreement between the parties, the Court having failed to appreciate that the alleged agreement was one relating to land and without the written agreement tendered in evidence. The thrust of the argument is that being an alleged agreement relating to land, such agreement must be in writing by virtue of Section 4 of the Statute of Frauds 1677. There being no written agreement from the Respondent between the duo, the lower Court erred in its finding that there was a valid agreement between the parties. Reliance is placed on the decisions in B.O.N. & Anor vs. Babatunde & Anor (2002) FWLR (Pt. 119), 14S, Abubakar vs Waziri (2008) 14 NWLR (Pt. 1108) among others.
The Respondent’s argument however is mainly twofold. Firstly, that there is nothing legally wrong about an oral agreement if its formation and existence can be proved.
Secondly, that the Respondent’s case has nothing to do with a transaction in land, which as argued, makes the Appellant’s reliance on Section 4 of the Statute of Frauds misconceived.
In its judgment, the lower Court found thus:
“I find credible the evidence that the parties agreed that the Defendant which has the financial strength and foreign connection should import the needed machineries for such heavy duty excavation and quarrying activities, should handle that aspect of procuring those equipments, and on the financial side of things, I see no reason to disbelieve the Plaintiff’s testimony as PW1 that the parties agreed that the Defendant should keep the income realized from the quarry up to the amount of N100,000,000.00 to cover the costs of the machinery it was bringing in, and thereafter for parties to implement a sharing ratio of 60% and 40% of the income to be realized from the quarry, and the machinery falling to the ownership of the Plaintiff note that this collaboration agreement is oral. Ideally, one would have loved financial deal such as this to have been reduced into writing. But there is nothing that makes the agreement invalid and unenforceable simply because it is oral. An oral agreement is still an enforceable contract provided that all the essential elements of a contract consisting of an offer, acceptance and consideration are present. See MTN (Nig.) Communications Ltd. v. Corporate Communications Inv. Ltd. (2019) 9 NWLR (Pt.1678) 427; (2019) LPELR- 47042 (SC).
I find that in relationships built on trust, such as existed in the early 1980s between the Plaintiff and the old managers of the Defendant, it is not atypical for arrangements such as had been described by the Plaintiff to be oral. Now, to prove the fact of its partnership with the Defendant, the Plaintiff tendered Exhibits.
COC7 and COCS, which were correspondences from the Defendant to him and to Mr. Edward Weekes. These pieces of documentary evidence are very persuasive and indeed evince a relationship of trust and collaboration existing between the Plaintiff and the Defendant. These pieces of evidence contain references and inferences portraying the Plaintiff by the Defendant’s then managers as an important part of the venture, and which can only be the case if there was a partnership between the parties for the exploitation of the quarry lease granted to the Plaintiff in the manner that the Plaintiff had described.”
Firstly, it is be noted here that the lower Court was not making findings or pronouncements on transaction in land strict osensu because that was not the dispute submitted to it. Secondly, both from the reliefs sought by the Respondent and the facts in its Statement of Claim, the Respondent’s suit revolves persistently around the operation and management of the Quarry viz-a-viz the agreed terms between the parties. It is not a claim or transaction in land in the manner argued by the learned counsel for the Appellant. I am in agreement with the Respondent’s learned counsel that the Appellant’s reliance on the provisions of Section 4 of the Statute of Frauds is misconceived. The lower Court’s finding that there exists a valid agreement albeit oral by the parties is correct. See Sparkling Brewaries Ltd &Ors vs. UBA Ltd (2001) LPELR – 3109 (SC), Shera Security Co. Ltd vs. Afropak (Nig) Ltd & Ors (2008) 1 LPELR-3052 (SC), Lewis vs. UBA (2016) LPELR-40661 (SC). In effect, this issue too is resolved against the Appellant.
The Appellant’s fourth issue (supra) faults the lower Court’s decision granting the Respondent the relief listed on the Writ of Summons as No. “V” for “an order restoring the Plaintiff’s title in the subject property”. The contention of the Appellant here is that, this particular Relief although listed on the Writ of Summons is however omitted in the Reliefs sought by the Respondent in its Statement of Claim. As argued, this means that the Respondent has abandoned the Relief “V” listed on the Writ of Summons.
The Respondent’s learned counsel has however simply ignored this contention for there is not a single word for the Respondent on it.
It is correct that the Writ of Summons listed the Relief stated above as a claim by the Respondent against the Appellant. See page 3 of the Record. See page 7 of the Record. It is also correct that that Relief is however not among the Reliefs specifically listed and claimed by the Respondent in its Statement of Claim. See page 7 of the Record. It is also clear that in its adopted Written Statement on Oath, the Respondent claimed thus:
“15. I claim against the Defendant as per the Statement of Claim.”
See page 11 of the Record.
I am in agreement with the Appellant’s learned counsel that the Respondent’s Relief listed as No. “V” on the Writ of Summons having been omitted in its Statement of Claim is deemed abandoned because as argued and I agree, Reliefs in a Statement of Claim supercede those on the Writ of Summons. See Stowe & Anor vs. Benstowe & Anor. (2012) LPELR – 7838 (SC), Garan vs. Olomu (2013) LPELR – 20340 (SC).
Although the lower Court did not state any reason for granting the Respondent the Relief No. “V” which as stated earlier is not among the Respondent’s claims in the Statement of Claim, the lower Court has no power to grant a party a Relief which the party himself has unambiguously abandoned. See llodiba vs. Nigerian Cement Co. Ltd (1997) LPELR – 1494 (SC), Yusuf & Ors vs. Akindipe & Ors (2000) LPELR-3532 (SC).
In effect, the grant by the lower Court of Relief “V” listed on the Writ of Summon is liable to be set aside.
The Appellant’s third issue (supra) under which the inalienable right of the Appellant to call persons it deemed fit as its witnesses and the fifth issue (supra)which essentially questions the lower Court’s evaluation of the evidence in the trial will be treated together because of their inextricable connection.
Learned counsel referred to page 370 of the Record where the lower Court held, as he argued, that the Appellant’s witness was not a fit and proper witness. It is submitted that the lower Court’s finding on this view is incorrect; placing reliance on the decision in Ishola vs. Societe – General Bank Ltd (1997) 2 NWLR (Pt. 486,405) where the Supreme Court reiterated the right of a company such as the Appellant to call as a witness any of its agents or servants, contrary to the view of the lower Court.
The other leg of the combined issues is directed at isolated findings of the lower Court which as argued for the Appellant are against the weight of evidence in the trial. In particular, it is argued that the failure of the lower Court to embark on a comparison of the disputed signatures of the Respondent was contrary to the provisions of Section 101 (1) of the Evidence Act 2011. It was argued that if the signatures were duly compared, the proof of payment of consideration by the Appellant to the Respondent and the fact of the disputed assignment of the Quarry lease would have been easily established. It is argued also that the Respondent’s case was fraught with contradictions.
For the Respondent, it is argued that the lower Court was right in refusing to embark on a comparison of signatures because the Court had already found ample evidence which made the Appellant’s alleged assignment untenable. It is further argued that the Appellant’s DW clearly demonstrated to the Court his lack of knowledge about the Appellant’s case and the claims in the suit.
I will start by pointing out that evaluation of evidence is primarily the duty of the trial Court. Except where the trial Court failed to evaluate the evidence properly or completely omitted to evaluate same, this Court will be disinclined to interfere with the findings of the trial Court.
It is the duty of the trial Court to evaluate the entire evidence before it. See Nguma VS. A. G. Imo State(2014) LPELR – 22252 (SC), Ukeje & Anor vs. Ukeje (2014) LPELR – 22724 (SC), Rev. King vs. The State(2016) LPELR-40046 (SC).
On the issue of Appellant’s right as Plaintiff to call a witness it desires and which it did through its lone DW, the lower Court’s finding on his evidence generally is as follows:
“I find it odd that on a matter as crucial as this for the Defendant, the only witness they could provide to contradict the Plaintiff’s case, was DW1 who was not yet in the services of the Defendant between 1981 to 1985, when most of the issues in contention in this suit arose. Could not have the Defendant brought any member of its top management or someone who was present and in the employ of the Defendant during the currency of the issues in controversy to come and testify? DW1 by his own testimony is in his 28th year in the service of the Defendant as at when he gave evidence in this case, meaning that he joined the Defendant around 1992, more than ten (10) years after the Plaintiff and the Defendant had started their relationship relating to the subject matter. Moreover, the DW1 did not strike me as a witness who is conversant with the real issues in controversy in this case.
So on the issue of the existence of a partnership, albeit oral, between the Plaintiff and the Defendant, I believe the Plaintiff and reject the Defendant’s contentions in this regard.”
It seems to me that the Appellant’s learned counsel, with respects, did not fully appreciate the lower Court’s evaluation on this point. The reasonings of the lower Court was about the credibility or otherwise of the Appellant’s DW; not about whether or not the Appellant is entitled to call as a witness any of its agents or servants. The Appellant’s argument here is thus unfounded.
I have read the entire evaluation of the evidence in the case as found at pages 366 to 378 of the Record. I will say straightaway that there is not any aspect of the evidence which the lower Court omitted to evaluate. More importantly, the more I read the lower Court’s evaluation of the entire evidence and those isolated for complaint by the Appellant, the less I find any reason to agree with the Appellant. The findings of the lower Court on those pieces of evidence, in particular its refusal to embark on a comparison of the Respondent’s signatures (See pages 374 to 375 of the Record), its finding on the absence of credible evidence of assignment (see pages 371 to 372 of the Record), its findings of the alleged contradictions in the Respondent’s case more particularly as it relates to the land in Life Camp Abuja (See pages 377 to 378 of the Record) are all findings reached upon a balanced, proper assessment of the evidence of both parties and upon correct legal principles. It does not behove on this Court to unduly embark on re-evaluation or to interfere with those findings even if the views of this Court on same would have resulted differently. See FRN vs. lweka (2011) LPELR – 9350 (SC), Fatai vs. The State(2013) LPELR – 20182 (SC), Ndukwe vs. LPDC & Anor (2007) LPELR – 1978 (SC). In consequence, both combined issues are resolved against the Appellant.
I will say a word further on the Appellant’s fourth issue (supra) on the unclaimed Relief granted by the lower Court in which, as may be recalled, I found merit in the issue. Notwithstanding, the Appellant may do well to remember that the lower Court had already granted the Respondent Reliefs numbers “i” to “iii” in the Statement of Claim whose effect is no less the effect of the Relief no. “V”. It is in this light that the Appellant’s fourth issue is thus resolved in its favour while its first, second, third and fifth issues are resolved in favour the Respondent.
On the whole therefore, the appeal succeeds only in part. The lower Court’s order granting the Respondent the Relief listed as number “v” on the Writ of Summons but which is abandoned in the Statement of Claim is hereby set aside. In all other respects, the appeal is dismissed for lacking in merit and the judgment of the lower Court affirmed.
Parties shall bear their respective costs on this appeal.
PETER OLABISI IGE, J.C.A.: I have read before now the draft judgment of my learned brother, BATURE ISAH GAFAI, JCA.
I am of the view that my learned brother has succinctly dealt with the issues set out for the determination of the appeal to arrive in his findings, reasoning and conclusion reached.
I agree with consequential order made in the judgment.
HAMMA AKAWU BARKA, J.C.A.: My learned brother, Gafai JCA, kindly availed me a copy of the judgment just read in draft with which I am in total agreement.
The reasoning and conclusion arrived at captured all the areas of contention which I adopt as mine. I agree that the appeal be allowed in part, and thereby endorse all orders made, including that made on costs.
Appearances:
CHIEF NNACHI O. EGWU, JP. For Appellant(s)
KELECHI NZOANYA V. with him, O. ADESINA. For Respondent(s)
