FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ANOR v. MICHAEL AKPU
(2019)LCN/13522(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/A/645/2017
RATIO
THE MAKER OF A DOCUMENT MUST BE CALLED TO TESTIFY
The firm position of the law is that the maker of a document (Private or Public) must be called to testify on such document or documents before the Court or Tribunal seised of the matter can accord the document (s) any probative value thus where as in this case the document Exhibit was prepared by Professional body – ISONG-OFUME AND PARTNERS – Estate Surveyors and Valuers, it was important for the Respondent to call a partner or member of the ISONG-OFUME & Partners to testify on facts contained in the said Valuation Report Exhibit “M”.PER PETER OLABISI IGE, J.C.A.
EVIDENCE: DOCUMENTS PRODUCED BY PARTIES IN THE COURSE OF HEARING ARE TO BE TESTED IN OPEN COURT
The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker therefore attracts no probative value in the absence of opportunity given to the other party to cross-examine for the purpose of testing its veracity. See Omisore v. Aregbesola (2015) 15 NWLR (Pt 1482) 205 at 322-323 which the Court below refused to apply in place of its own decision in Aregbesola v. Oyinlola (2011) 9 NWLR (Pt 1253) 458. See also the case of Sa`eed v. Yakowa (2013) & NWLR (Pt.1352) 124 at 149-150 and Osigwelem v. INEC (2011) 9 NWLR (Pt. 1253) 423 at 451.”PER PETER OLABISI IGE, J.C.A.
ADMISSIBILITY OF DOCUMENT IS BASED ON RELEVANCE, PLEADING AND THE EVIDENCE ACT
Admissibility of document is based on relevance pleading and Evidence Act where admitted the content of the document must be provided or established. The probative value depends not only on relevance proof of a fact or many facts in issue in an action.PER PETER OLABISI IGE, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. THE MINISTER, FEDERAL CAPITAL TERRITORY – Appellant(s)
AND
MICHAEL AKPU – Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court of Federal Capital Territory delivered on 22/5/2016.
The Respondent as the Plaintiff had approached the lower Court claiming against the Appellants as Defendants the following reliefs:
1. A declaration of this Honourable Court that the defendants willfully misrepresented the title to the property known as Block 68, 32 Crescent, Gwarinpa, Abuja and deceived the Plaintiff into purchasing the said property, when a contract exist between the defendants and Ms Philomena Anokwu,
2. An order of this Honourable Court compelling the defendants to provide an alternative house of the same size, structure and value within Gwarinpa, Abuja to the plaintiff immediately as a replacement for Block 68, 32 Crescent, Abuja,
3. Alternatively an order compelling the defendants to pay the plaintiff the sum of =N40,513,500.00 (Forty Million, Five Hundred and Thirteen Thousand, Five Hundred Naira) only being the current market value in the year 2012 of Block 68, 32 Crescent, Gwarinpa Abuja, including all monies paid to various
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agents of the defendants, =10,000,00 (Ten Thousand Naira) only first payment to the management of sales of Government Houses, =N70,200.00 (Seventy Thousand, Two Hundred Naira) only paid to Abuja Metropolitan Management Agency, =N30,000.00 (Thirty Thousand Naira) only amounting to the sum of =N40,623,700,00 (Forty Million, Six Hundred and Twenty Three Thousand, Seven Hundred Naira) only.
4. The sum of =N20,000,000.00 (Twenty Million Naira) only being special and general damage against the defendants.
Issues were joined by the parties and the matter proceeded to trial. The Respondent gave oral and documentary evidence in support of his claims. He tendered Exhibits A-M in the proceedings. The Appellants as Defendants called one witness, DW1, and after his testimony and adoption of Written Addresses by Learned Counsel to the parties the learned trial Judge gave judgment against the Appellants as follows:
“In the instant case, all these ingredients are present that is to say there was valid CONTRACT BETWEEN THE PLAINTIFF AND TH DEFENDANTS. See Exhibits 4 6, F, G and X.
In this kind of transaction which is
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assignment of legal title of the seller to the buyer, it is assumed that the seller has a valid titled that will give the buyer unconditional enjoyment and unencumbered title of effective title that will not deny the buyer the benefit and enjoyment cum quiet passion of the property.
However, where the buyer cannot enjoy the quiet possession, I think it is fair and equitable to return the buyer’s consideration in line with the position of the law. See BEST (NIG) LIMITED VS. BLACKWOOD HODGE (NIG) LIMITED & ORS (2011) LPELR – 776 (SC) where per FABIYI, JSC (as he then was) held 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.”
The Plaintiff in this case is a bona fide purchaser for value without notice of any prior right. It is the defendants’ responsibility who knows that there is an issue on this property with another person that ought to have exercise caution before placing the property for public bid.
The Erudite jurist stated further “Let me further reiterate the
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point that a contract ought to be strictly construed in the light of the essential and material terms agreed by the parties. The Court should not allow a party to dribble the other party.
That is why I agree with the plaintiff learned counsel when he wrote at paragraph 3.04 of his final written address thus “that the defendants’ title is defective and the defendants was aware of this defect and yet went ahead to transfer title to Block 68, 32 Crescent, Gwarinpa, Abuja to the plaintiff.”
The doctrine of frustration relied upon by the learned counsel to the defendants with due respect to him cannot avail him. This is because the contract had been concluded in the first place. The defendants who ought to have contemplated that having issues with a third party on the property that they were offering for public bid might result to what happened considering the Exhibit J should not have done so in the first place.
In the case of GOLD LINK INSURANCE CO. LIMITED VS. PSTF (2008) LPELR – 4211, the appellate Court held thus;
In other words, for doctrine of frustration to avail a party, he must show that he is willing and capable of performing
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his own obligation under the contract but was prevented from doing so by circumstances beyond his contemplation and control.”
The capability of the defendants cannot be said to have been prevented in this circumstance because they ought to have contemplated that it might turn this way. Since they are saying that another house is not available to give to the plaintiff, his consideration in /Me with Exhibit M should be remitted back to him.
In the case of BEST (NIG) LIMITED (supra) it was held thus:
For a claimant to succeed in an action for breach of contract, he must establish not only that there was a breach but also that there was existence an enforceable contact which was breached.”
This is my opinion the plaintiff has fulfilled these conditions.
Therefore, I order that the plaintiff be paid the sum of =N40,513,500,00 only being the value stated in Exhibit M.
This is the judgment of this Court.”
The Appellants were dissatisfied with the judgment and have by their NOTICE OF APPEAL dated 6th June, 2016 and filed on 9th June, 2016 appealed to this Court on six (6) grounds as follows:
“GROUND ONE
The Judgment is
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against the weight if the evidence.
GROUND TWO
The Learned trial Judge erred in law in which occasioned miscarriage of justice when he admitted and relied on Exhibit M (Valuation Certificate on House No. 68, 32 Crescent Off 3rd Avenue, Gwarinpa) upon which he gave judgment in favour of the Plaintiff Respondent. GROUND THREE
The Learned trial judge misdirected himself in law which occasioned a miscarriage of justice when he held in his judgment that “the defendants could not establish their title and indeed have a defective title when they sold House No. 68, 32 Crescent 3rd A venue, Gwarinpa, Abuja whereas there was no such evidence before the Court.
GROUND FOUR
The learned trial judge erred which occasioned a miscarriage of justice when he held that true facts about the property in dispute was concealed by the Defendants/Appellants from the Plaintiff/Respondent which concealment misled the Plaintiff/Respondent to enter into the contract which could not be sustained by the Appellant because the Appellant lacked titled to transfer the property.
GROUND FIVE
The learned trial judge misdirected himself in law which occasioned
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miscarriage of justice when he held that the contract between the Appellants and the Respondent was not affected by any of the vitiating elements of contract yet went ahead to hold that a fact was concealed by the Appellants from the knowledge of the Respondent.
GROUND SIX
The Learned trial judge erred which occasioned miscarriage of justice when he relied on Exhibit M to award the sum of Forty Million, Five Hundred and Thirteen Thousand, Five Hundred Naira only (N40,513,500.00) against the Appellants as being the cost of the property in dispute, on the basis that the Appellants failed to file a counter valuation certificate to challenge Exhibit M.”
The Appellant Brief of Argument dated 2/5/2018 was filed on 7th May, 2018 but deemed properly filed on 26/3/2019. The Respondent’s Brief of Argument dated 30/5/2018 was filed on 27th June, 2018 but deemed filed also on 26/3/2019.
Appellant’s Reply Brief dated 23/10/18 was filed on 29/10/2018. It was also deemed filed on 26/10/2019.
The Learned Counsel to the Parties adopted the said Briefs on 26th March, 2019 when the appeal was heard.
The Learned Counsel to the Appellants EZEKIEL O.
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ITUMA Esq;. distilled three issues for the determination of the appeal.
a. Whether the learned trial judge was right when he admitted and relied on Exhibit M (Certificate of Valuation made by Isong-ofume and Partners) tendered in evidence by the Respondent himself to enter judgment in favour of the Respondent when the Respondent was not the author of the exhibit (Grounds 1, 2 and 6 of the Notice of Appeal)
b. Whether the Appellants’ title/authority to sell the property in dispute is defective and incapable of passing title to the Respondent as was found by the trial Court (Ground 3 of the Notice of Appeal)
c. Whether the Appellants concealed any facts of defects in title which is capable of vitiating the contract between the Appellant and the Respondent and whether such concealment if any does not amount to a vitiating element of contract. (Ground 4 and 5 of the Notice of Appeal)
The Respondents Learned Counsel JOHN ABAH AUGUSTINE Esq., adopts the three issues nominated by the Appellant.
It is however pertinent to mention that the Respondent filed what it described as Notice of Preliminary Objection on 27/6/2018
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seeking for:
(a) An order of striking out particulars (a), (b), (c), (d),(e), (f) and (j) of ground 2, of the Appellant’s notice of appeal as well as issue formulated therefrom
(b) An order striking out ground 3, 4, and 5 of the Appellant’s Ground of Appeal as they do not arise from the judgment of lower Court.
The Learned Counsel to the Respondent impropriated arguments in the objection into his Respondent’s Brief of Argument pages 6 -15 thereof reformulated two relief sought in the application aforesaid. The Respondent went into extensive relevancies in argument the two issues raised pertaining to the objection. According to Respondent’s Learned Counsel, the particulars to ground 2 and grounds 3, 4 and 5 were not derived from the ratio dedendi of the judgment and that they bordered on fresh issues requiring the leave of Court.
The Appellant filed Appellant Reply wherein the Learned Counsel to the Appellant submitted that the grounds of appeal challenged and the particulars thereto emanated from the judgment and on admissibility of Exhibit M. He urged the Court to dismiss the objection.
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I have read carefully the arguments of the Respondent on the preliminary objection as well as examined the grounds of appeal earlier reproduced in this judgment. I have also considered the argument of Learned Counsel to the appellant and I am of the opinion that the application is guilt unfounded and lacks merit. The grounds of appeal are valid. Issues are not derived from particulars of a ground of appeal but from a ground of appeal read together with its particulars where the ground of appeal has plausible particulars. The Respondents Preliminary Objection is thereby dismissed.
Now to the merit of the appeal.
As stated earlier the Appellant formulated three issues will be taken together namely.
