IDEMUDIA v. IGBINOVIA
(2022)LCN/16835(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 28, 2022
CA/B/488/2019(R)
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MR. ROBERT OSEMWENGIE IDEMUDIA APPELANT(S)
And
MRS. IRIOWEN IGBINOVIA RESPONDENT(S)
RATIO
WHETHER OR NOT WHEN A DOCUMENT IS TENDERED BEFORE A COURT, IT BECOMES PART OF THE EVIDENCE TO BE CONSIDERED BY THE COURT
It was submitted that when a document is tendered before a Court, it becomes part and parcel of the evidence to be considered by the Court in the determination of the case. Jolimair Nig. Ltd & Anor V. Liberty Bank Plc and those documents once tendered form part of the entire case and can be used for any legitimacy purposes: See Ishola Williams V. T.A. Hammond Projects (1988) LPELR 1551 SC. PER BOLA, J.C.A.
WHETHER OR NOT THE TRIAL COURT MUST CONSIDER ALL DOCUMENTS PLACED BEFORE IT
In Mohammed vs. Abdulkadir (2008) 4 NWLR Part 1076 page 111 at 156- 157, it was held that: “A trial Court has the onerous duty of considering all documents placed before it in the interest of justice. It has a duty to closely examine documentary evidence placed before it in the course of its evaluation and comment or act on it. Documents are not tendered merely for the sake of tendering but for the purpose of examination and evaluation.” PER BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): By Motion on Notice brought pursuant to Order 6 Rule 1 and Order 3 of the Court of Appeal Rules 2021 and under the inherent jurisdiction of this Court, the Respondent/Applicant prays for AN ORDER striking out ground 2 of the Appellant/Respondent grounds of Appeal filed on 22nd January, 2022 in this appeal, that is Appeal No. CA/B/488/2019 for want of competence.
The application was premised on the following grounds:
1. The Appellant sought the leave of this Honourable Court to amend his Notice of Appeal to incorporate more grounds of appeal.
2. Leave of the Honourable Court was on 28/2/2022 granted the Appellant to effect the aforesaid amendment.
3. Upon perusal of the extant amended notice of appeal in this appeal and the grounds of appeal contained therein, the Respondent/Applicant has realized that ground two of the said grounds of appeal does not arise from the Judgment of the trial Court and purports to raise a fresh issue not canvassed by the Appellant at the trial Court.
4. Premised on the above, the Respondent/Applicant has brought the instant application seeking an order of this Court striking out the aforesaid ground two for want of competence.
The application is supported with a 5 paragraph affidavit sworn to by one Miss Racheal Nwaneri.
In his written address the Respondent/Applicant’s Counsel raised a sole issue for consideration and determination. It is whether ground 2 of the Appellant/Respondent’s grounds of Appeal contained in the extant amended Notice of Appeal is not incompetent.
It was submitted that the Appellant/Respondent’s ground two of his ground of appeal contained in the extant amended Notice of Appeal does not arise from the Judgment of the trial Court. Furthermore, the said ground 2 raises a fresh issue not canvassed by the Applicant at the trial Court.
It was argued that the issue now being raised and canvassed by the Appellant in this appeal are issues that were never presented before the trial Court for determination, and as such could not have arisen from the Judgment of the trial Court or its ruling the Appellant never prosecuted at the trial Court, the issues now being raised in the instant appeal, the trial Court never had the privilege of pronouncing on same.
Contending further, it was the submission of the Applicant that an appeal presupposes the existence of some decision appealed against. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. Refer to the cases Oredoyin & Ors V. Arowolo & Ors (1989) 4 NWLR (Pt. 114) at 72; Peters V. Jackson (2001) 49 NRN 118 at 131.
Counsel submitted further that for a ground of appeal to be valid and competent, it must be related to the decision being against and should constitute a challenge to the ratio of the decision an appeal. Thus, where a ground of appeal as couched does not arise from the Judgment of the trial Court, and purport to raise an issue not decided by the Judgment appealed against, both the ground and the issue it purports to raise are incompetent and liable to be struck out. Refer to the case of FRN V. Nwosu (2016) 17 NWLR (Pt. 1541) 226 at 279.
Submitted that in the instant appeal, the Appellant’s ground 2 of his ground of appeal raised an issue bordering on the interpretation of Exhibit ‘B’ (Power of Attorney) as it relates to the power of the Appellant’s Attorney to execute Exhibit ‘D’ (Deed of Transfer) on behalf of the Appellant.
That the Appellant never presented the above point for determination by the trial Court, instead, the Appellant at the trial Court stuck tenaciously to his argument that his Attorney signed Exhibit ‘D’ under dress. That the issue being raised by the aforesaid Ground 2 of the Appellant’s ground of appeal is an obvious deviation from the case of the Appellant as pleaded and presented at the trial Court.
That the law is settled that a party is bound by the case put forward and would not be allowed to change its stance on appeal. He cited the case of Ladoja V. Ajimobi (2016) 10 NWLR (Pt. 1510) 87 at 129.
Further to the above, it was submitted that owning to the incompetent nature of ground 2 of the Appellant’s Grounds of Appeal in the instant appeal, Issue No.1 in the Appellant’s brief of argument distilled from the aforesaid Ground 2 was tainted and liable to be struck out, placing reliance on the case -Thor Ltd. V. FCMB Ltd (2002)4 NWLR (Pt. 757) 427 at 446.
Furthermore, issue No.2 in the Appellant’s Brief has therefore fallen into the fundamental error of arguing issues from the incompetent Ground 2 and competent Ground 3 altogether. He argued that where an issue encapsulates arguments arising from a competent Ground of appeal together with an issue arising from an incompetent ground of appeal, the said issue and arguments built around same would be disregarded and struck out according. Referred to Bello V. Gov. Kogi State (1997) 9 NWLR (Pt. 521) 497 at 513 – 514.
It was contended that the Appellant failed to comply with the mandatory requirement by the Supreme Court in Dangote V. C.S.C Plateau State (2001) 18 NWLR 125 at 143 – 144; Adegoke Motors V. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 270.
Finally, Counsel urges this Court to strike out Ground 2 of the Appellant’s Grounds of Appeal and issues 1 and 2 distilled from the same Ground 2, on the premises that Ground 2 never arose from the Judgment of the lower Court appealed against.
In response to the Respondent/Applicant argument, the Appellant/Respondent submitted that at the trial Court, the Appellant tendered several documents including the Power of Attorney and the Deed of Assignment while the trial Court considered only the said Deed of Assignment in dismissing the case of the Appellant. That the said Deed of Assignment was tendered as Exhibit ‘D’ and the trial Judge despite the content of the Power of Attorney dismissed the case of the Appellant by relying extensively on Exhibit ‘D’ without recourse to Exhibit ‘B’ which is the Power of Attorney.
It was argued that documents tendered and admitted before the Court are primary for the purpose of consideration in support of facts which should be fully considered by the Court. Refer to Ejuetami V. Akaba (2002) FWLR (Pt. 88) 955. That a Court is entitled to draw inferences from admitted facts and documentary evidence.
That the Respondent’s Counsel never objected to the admissibility of the said Power of Attorney when it was tendered. Submitted that having been tendered and the Court failed to make reference to it while considering other Exhibits tendered by the parties, that the Court of Appeal will not make a new issue that will require leave before same can be argued.
It was submitted that when a document is tendered before a Court, it becomes part and parcel of the evidence to be considered by the Court in the determination of the case. Jolimair Nig. Ltd & Anor V. Liberty Bank Plc and those documents once tendered form part of the entire case and can be used for any legitimacy purposes: See Ishola Williams V. T.A. Hammond Projects (1988) LPELR 1551 SC.
The pith and substance of the Respondent’s contention is that Ground 2 of the Appellant’s Notice of Appeal does not arise from the Judgment of the lower Court appealed against. By the said Ground 2, the Appellant seeks to raise an issue that was not canvassed at the lower Court.
The issue therefore arises whether Ground 2 of the Appellant’s Grounds of Appeal flows from the Judgment of the lower Court.
Ground 2 of the Amended Notice of Appeal is reproduced as follows:
GROUND TWO
The learned trial Judge erred in law when he dismissed the case of the Appellant on the basis of Exhibit ‘D’ without a deep consideration of the Power of Attorney which is Exhibit ‘B’.
Does issues relating to Exhibits ‘B and D’ respectively flow from the Judgment of the lower Court? Exhibit ‘B’ is the power of Attorney while Exhibit ‘D’ is the Deed of Assignment.
It is indisputably clear that Exhibit ‘B’ was tendered in this case before the Court. It is equally clear that Exhibit ‘D’. Deed of Assignment was tendered by the Appellant (Claimant) to establish that the sum of N500,000 and the compromise agreement or out of Court settlement reached by the parties which document the lower Court held was binding on the parties. The trial Court further held that “The Claimant’s Attorney cannot by his oral evidence vary the terms of Exhibit ‘D’, containing the terms of the compromise agreement reached by the parties”.
Further in the Judgment of the lower Court, it was held “it is settled that once the parties signed the settlement or compromised agreement Exhibit ‘D’, the original action abates”.
Finally, the trial Court concluded thus on Exhibit ‘D’:
“In the instant case, the evidence before the Court shows indisputably that the parties in fact settled the matter and compromised the suit, though the parties did not file the usual terms of settlement but entered into an agreement Exhibit ‘D’. Admittedly, Exhibit ‘D’ was inelegantly drafted but that did not affect its validity that the parties actually executed the agreement”.
Juxtaposing Ground 2 and even Ground 3 of the Amended Notice of Appeal, with the relevant portions of the Judgment of the lower Court, quoted above, it could be seen clearly that Grounds 2 and 3 of the Amended Notice of Appeal flow clearly from the Judgment. Even though Exhibit ‘B’ was not elaborately pronounced on in the Judgment, however reference was made to it at the trial Court. Indeed, the lower Court considered copiously Exhibit ‘D’ which was tendered by the Appellant and admitted by the Court and drew inferences from the admitted document.
Against this backdrop, I see no merit in the contention of the Respondent/Applicant that Ground 2 of the Appellant’s Amended Notice of Appeal did not flow from the Judgment of the lower Court. Suffice to say, Exhibit ‘D’ constituted the bedrock of the Judgment of the lower Court. It is therefore preposterous the argument that Ground 2 did not arise from the Judgment.
The Respondent/Applicant objection lacks substance and it is unmeritorious. For this reason, the application is dismissed.
Parties to bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA. J.C.A.: I have carefully studied the leading ruling of this Court delivered in the Motion on Notice filed by the Respondent in this appeal praying this Court for an Order striking out Ground 2 of the Appellant’s Notice of Appeal on the ground that the same did not emanate from the judgment of the lower Court delivered on the 18th November, 2018. Ground 2 says that:
“The learned trial Judge erred in law when he dismissed the case of the Appellant on the basis of Exhibit D without a deep consideration of the Power of Attorney which is Exhibit B.”
It is evident in the record of appeal before this Court that the Power of Attorney donated by the Appellant to his Lawful Attorney was tendered as Exhibit B. It is also clear that the purported power with which the said lawful Attorney allegedly entered into Exhibit D with the Respondent was derivative of Exhibit B. To properly establish the validity of Exhibit D, the contents of Exhibit B ought to have been thoroughly scrutinized by the lower Court to ascertain if the said Rufus Idemudia had the capacity to enter into such an agreement or make the purported alienation of the Appellant’s title to the land in dispute as he did. The two Exhibits are intertwined that one cannot be considered in isolation. The Exhibits are before the Court, and the Court ought to have considered all the documentary evidence put forward by the parties.
The Appellant, by ground 2, is complaining about non- evaluation or improper evaluation of Exhibit B that led to a wrong conclusion based on Exhibit D alone. The documents together constitute an integral part of the case of the Appellant and the lower Court had no reason whatsoever not to consider it when appraising Exhibit D. The lower Court had a duty to carefully consider them. The Appellant is complaining that Exhibit B was not given the due consideration it deserved. Exhibits B and D are part of the judgment of the lower Court, therefore, the Appellant is entitled to complain about it having not been properly evaluated by the lower Court. In Mohammed vs. Abdulkadir (2008) 4 NWLR Part 1076 page 111 at 156- 157, it was held that: “A trial Court has the onerous duty of considering all documents placed before it in the interest of justice. It has a duty to closely examine documentary evidence placed before it in the course of its evaluation and comment or act on it. Documents are not tendered merely for the sake of tendering but for the purpose of examination and evaluation.”
The Appellant relied heavily on Exhibit B to establish that the Power of Attorney did not clothe his said lawful attorney, Rufus Idemudia, with the power to alienate the Appellant’s interest in the said land. This Court, therefore, has a duty to examine the said documents together. I further rely onUBA Plc vs. BTL Ind. Ltd (2005) 10 NWLR part 933 page 356. Accordingly, I see no merit in this application and therefore, dismiss the same for being baseless.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed the draft of the ruling delivered by my learned brother, Samuel Ademola Bola, JCA. Having myself read the pleadings in the case, particularly, the appellant’s statement of claim, one is left in no doubt that ground 2 does not raise a new issue that necessitates the leave of the Court. Exhibit “B” on which the said ground 2 dwelt was tendered and admitted in evidence without objection from the respondent.
On the basis of the foregoing, and the exhaustive analysis of the argument of counsel in this application by my learned brother, I also hold this application to be lacking in merit. It is hereby dismissed. No Order as to costs.
Appearances:
Emmanuel Olayiwola Afolabi For Appellant(s)
K.O. Obamogie, with him, F.O. Ohonbamu and Osahon Obamogie For Respondent(s)
