JAJA v. C.U.D.A. & ORS (2020)

JAJA v. C.U.D.A. & ORS

(2020)LCN/14839(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/C/255/2017

RATIO

PRELIMINARY OBJECTION: CARDINAL PRINCIPLE IN A PRELIMINARY OBJECTION

It is a cardinal principle long established, that where a preliminary objection is raised to the competence of an appeal, the jurisdiction of the Court to hear the appeal becomes an issue, and thereby of fundamental importance that it be determined and resolved before venturing to the merit of the appeal or the main issues for resolution. See PPA vs. INEC (2012) 13 NWLR (pt. 1317) 201, Ogboru vs. Uduaghan (2012) 11 NWLR (pt. 1311) 357, UBA Plc vs. ACB (Nig) Ltd (2005) 12 NWLR (pt. 939) 232, NPA vs. Eyamba (2005) 12 NWLR (pt. 939) 409 and NNB Plc vs. Imonikhe (2002) 5 NWLR (pt. 760) 294. PER BARKA, J.C.A.

APPEAL: RIGHT TO APPEAL

It is fundamental to state that the right to appeal is constitutionally guaranteed by the Constitution and the statutes in that regard. It has been held therefore that being a creation of statutes, the jurisdiction of the Court of Appeal to entertain matters on appeal is guided by rules of the Court. Where any appellant fails to be properly guided by the relevant law or rules governing the mode or manner of its initiation, such appeals will be rendered incompetent and thereby robbing the Court of jurisdiction to entertain the appeal. See Uwazurike vs. AG of the Federation (2007) ALL FWLR (pt. 367) 834, Boko vs. Nungwa (2019) ALL FWLR (pt. 1000) 617 @ 660.
Also in Bukoye vs. Magaji (2017) ALL FWLR (pt. 889) 529 @ 550, the Apex Court emphasised that:
“There is no iota of dispute that parties in any suit have unfettered right of appeal against the decision of the trial Court to the Court below and even further to this Apex Court as provided by Sections 246 and 233 of the Constitution of the Federal Republic of Nigeria, 1979 and 1999 as amended respectively… It is trite law that rights of appeal are exercised according to law, rules and procedures governing such appeal. In other words it is incumbent upon the litigant to follow the law, rules and procedure governing the exercise of such right of appeal”. PER BARKA, J.C.A.
APPEAL: WHEN WILL AN APPEAL LIE TO THE COURT OF APPEAL AS OF RIGHT

By the provisions of Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, an appeal shall lie as of right from decisions of the Federal High Court or a High Court of a State to the Court of Appeal in the following circumstances:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone.
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of the Constitution.
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of this Constitution has been, is being or is likely to be contravened in relation to any person.
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death.
(f) where an injunction or the appointment of a receiver is granted or refused amongst others. See Attamah vs. Anglican Bishops of the Niger (1999) 12 NWLR (pt. 633) 6 and Ecobank Nig. Ltd vs. Honey Well Flour Mills Plc (2019) ALL FWLR (pt. 1001) 811 @ 835, per Okoro JSC. PER BARKA, J.C.A.
SERVICE: IMPORTANCE OF SERVICE OF PROCESSES

It is elementary the fact that service is a precondition for the exercise of jurisdiction, and where there is no service, or a procedural fault in service, the subsequent proceedings no matter how elegantly conducted becomes a nullity as the same goes to the competence of the action. See ACB Plc vs. Losada (Nig) Ltd (1995) 7 NWLR (pt. 405) 26, Scott-Emuakpor vs. Ukavbe & Ors (1975) 12 SC (reprint) 32 per Bello, CJN. PER BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

VICTOR SAMUEL JAJA APPELANT(S)

And

CALABAR URBAN DEVELOPMENT AUTHORITY (CUDA) 2. MR. ELEGANCE EKPENYONG EDIM 3. MAJOR EKENG 4. CALABAR MUNICIPAL PLANNING AUTHORITY 5. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, CROSS RIVER STATE. RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of Hon. Justice Akon Ikpeme sitting at the Akamkpa Judicial division of the Cross River State High Court in suit No. HC/97/2007; between Victor Samuel Jaja vs. Calabar Urban Development Authority (CUDA) & 4 Ors., delivered on the 17th of February, 2014; Whereof, the Claimants claim was dismissed.

As can be gleaned from the records, the appellant herein, a brick layer who carries on his business at Plot 12 Ayamudua Estate, Calabar Municipality of Cross River State, was alleged to have been approached by Agents of the 1st Respondent, directing him to relocate his business though not served with any notice as required by law.

Apprehensive of what the respondent could do, appellants instituted suit No. HC/31/2007 against the 1st Respondent challenging its directive to it to vacate the business premises. On the 30/1/07, the application was heard and granted exparte, restraining the respondents from demolishing the business premises of the appellant herein.

That notwithstanding, respondents proceeded to demolish

the appellants’ business premises, contending that appellants built the structure in contravention of the Cross River State Building regulations, hence the premise an illegal structure built without authorisation.

Piqued by the said demolition, appellant approached the lower Court vide a writ of summons filed on the 2/3/2007 seeking for the following reliefs:
1. AN ORDER OF PROHIBITION directed at the Respondent who is the Calabar Urban Development Authority (CUDA) to compel the Respondent to observe and comply with Sections 36, 37 and 43 of the Constitution of the Federal Republic of Nigeria 1999 and in particular AN ORDER to restrain the Respondent from destroying the block moulding building machines and equipments of the Applicant situate at Plot 12, Ayamudua Estate, Calabar Municipality, Calabar, Cross River State without lawful cause or excuse.
2. A DECLARATION that the threat to demolish Applicant’s business premises without hearing from him and serving him with the statutory legal notices to that effect violates Section 36 of the Constitution of the Federal Republic of Nigeria and is null, void and of no effect whatsoever.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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A DECLARATION that by virtue of Sections 37 and 43 of the Constitution of the Federal Republic of Nigeria 1999 the applicant is entitled to manage, control and enjoy his assets including the block moulding premises, equipments etc, and other properties situate at Plot 12, Ayamudua Estate, Calabar free from harassment, threat and intimidation by the Respondent and their agents.
4. A DECLARATION that the continuous and persistent threats by the Respondent and its agents and officers to demolish and destroy the Applicant’s building and equipments unlawfully is barbaric, illegal, unconstitutional, null and void.
5. A DECLARATION that the Respondent can only demolish Applicant’s building by following due process and following the stringent provisions of the law including his relocation on the payment of adequate compensation.
6. AN ORDER OF INJUNCTION restraining the respondents, their agents and privies from further threats and intimidation or actually destroying the applicant’s properties including his block moulding machines and his offices and premises situate at Plot 12, Ayamudua Estate, Calabar or doing other things that

would adversely affect in any manner whatsoever the applicant’s constitutional and legal rights as a citizen and businessman of the Federal Republic of Nigeria.

At the close of trial and written address, the lower Court considered the totality of the evidence before it, oral and documentary, and dismissed the plaintiff’s case in the following words:
“Having not proved by evidence any wrong suffered from the act of the Defendants, this Court further holds that the claimant by the preponderance of evidence before this Court is not entitled to award of damages general or special against the Defendant.
In the same vein, I hold that the Defendants are not entitled to their counter claim against the claimant in this case because apart from some answers in cross-examination, they did not lead any evidence in proof of same. Defendants counsel had submitted that this action is an abuse of Court process because it is premised on frivolity or recklessness. I fail to see how this is so. If claimant genuinely believed his right was infringed, he has every right to seek redress.
It is for the above reasons, that both the main

claim and the counter claim are hereby dismissed as lacking in merit. Parties are to bear their costs.”

Dissatisfied with the judgment of the Court wherewith his claim was dismissed, appellant filed a Notice of Appeal on the 15/5/14, predicated on six (6) grounds of appeal, and when the appeal was properly entered to this Court on the 20/7/17, deemed transmitted on the same 20/7/17, appellant filed a brief of argument on the 20/11/2017, deemed filed on the 19/10/2020. The respondents’ brief filed on the 5/2/2019 deemed filed on the 6/01/2019 was further deemed on the 19/10/2020. Appellant filed a reply brief on the 8/4/19 also deemed filed on the 19/10/2020.

When the appeal eventually came up for hearing on the 19/10/2020, both parties identified their respective briefs, urging the Court to grant their respective prayers.

In the brief filed by the appellants and settled by Nta A. Nta, six issues were identified for resolution as follows:
ISSUE 1
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE REJECTED THE EVIDENCE OF PW2, MR. PAUL CHIDINDU, A HAND WRITING, SIGNATURE AND DISPUTED DOCUMENTS ANALYST AND EXPERT WHEN

HIS EVIDENCE AND FINDINGS IN RESPECT OF EXHIBIT 1 WAS NOT CHALLENGED OR CONTRADICTED BY THE DEFENDANTS/RESPONDENTS.
ISSUE 2
WHETHER FLOWING DIRECTLY FROM THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT IT HAS NOT BEEN PROVED THAT THE RESPONDENTS ACTUALLY ACCEPTED SERVICE OF THE COURT ORDER DATED 30TH JANUARY, 2007.
ISSUE 3
WHETHER FROM THE FACTS AND CIRCUMSTANCES OF THIS CASE THE DEMOLITION OF THE APPELLANT’S BLOCK MOULDING PLANT BY THE RESPONDENTS WAS NOT ILLEGAL, UNLAWFUL AND CONTEMPTUOUS OF THE COURT ORDER OF 30TH JANUARY, 2007.
ISSUE 4
WHETHER FLOWING FROM THE FACTS AND THE EVIDENCE IN THIS CASE BEFORE THE LEARNED TRIAL JUDGE, THE LEARNED TRIAL JUDGE WAS RIGHT TO CONCLUDE THAT APPELLANT DID NOT CHALLENGE THE SERVICE OF THE 3 (THREE) NOTICES DATED 11/9/2006, THE NOTICE DATED 18/9/06 AND THE NOTICE DATED 14/9/06 ALLEGEDLY SERVED BY THE RESPONDENTS ON THE APPELLANT.
ISSUE 5
WHETHER FLOWING FROM THE FACTS AND CIRCUMSTANCES OF THIS CASE THE LEARNED TRIAL JUDGE HAD PROPERLY EVALUATED THE EVIDENCE BEFORE HIM IN SUIT NO. HC/97/2007.
ISSUE 6
WHETHER THE JUDGMENT OF THE

LEARNED TRIAL JUDGE IN SUIT NO. HC/97/2007 WAS NOT AGAINST THE WEIGHT OF EVIDENCE.

Also in the Respondents’ brief settled by O. E. Asuquo, Assistant Director Civil Litigation Department, Ministry of Justice, Cross River State, raised a preliminary objection at page 4 of the brief and argued therein from pages 4-9 thereof.

That notwithstanding, six issues were also identified for resolution as follows:
5.1 WHETHER THE TRIAL COURT WAS CORRECT WHEN IT HELD THAT IT HAS NOT BEEN PROVED THAT THE SIGNATURE ON EXHIBIT 1 WAS SIGNED BY THE CALABAR MUNICIPAL TOWN PLANNING OFFICER, STELLA ASUQUO (D.W.1). Couched from Ground No. 1 contained in the appellant’s notice of appeal).
5.2 WHETHER THE TRIAL COURT WAS CORRECT WHEN IT HELD THAT IT HAS NOT BEEN PROVED THAT THE COURT ORDER IN SUIT NO. HC/31/2007 WAS ACTUALLY SERVED ON THE CALABAR URBAN DEVELOPMENT AUTHORITY (CUDA) ON 5/2/07 AS THE SAID AFFIDAVIT DOES NOT DISCLOSE THE NAME AND PARTICULARS OF THE PERSON WHO ACCEPTED SERVICE. (Formulated from Ground No. 2).
5.3 WHETHER THE TRIAL COURT WAS CORRECT IN HOLDING THAT IT HAS NOT BEEEN ESTABLISHED THAT THE DEMOLITION OF THE CLAIMANT’S

SHED WAS ILLEGAL, UNLAWFUL AND CONTEMPTUOUS OF THE COURT ORDER OF 30TH JANUARY, 2007. (Derived from Ground No. 3).
5.4 WHETHER THE APPELLANT HAD CHALLENGED THE SERVICE OF THE THREE (3) NOTICES ON HIM TO ENABLE THE TRIAL COURT ENTER JUDGMENT IN HIS FAVOUR. (Couched from Ground No. 4).
5.5 WHETHER THE TRIAL COURT PROPERLY DISCHARGED ITS DUTY BY EVALUATING THE EVIDENCE ADDUCED IN THIS CASE. (Formulated from Ground No. 5).
5.6 WHETHER THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE WEIGHT OF EVIDENCE ADDUCED BY THE PARTIES HEREIN. (Derived from Ground No. 6).

is in line with the above legal principle that the preliminary objection be treated first, in time.

The Preliminary Objection
The respondents raised the preliminary objection to the competence of the appeal, contending that the grounds of appeal as depicted in the Notice of Appeal filed are grounds of mixed law and facts, and facts alone, requiring the leave of the Court to be sought and obtained prior to its filing.

Proffering arguments in support of the preliminary objection, the learned counsel analysed the six grounds of appeal, contending that the grounds are those of mixed law and facts and facts alone, for which the leave of the Court ought to have been sought and obtained. Learned counsel making reference to numerous case law on the issue, argued that since the grounds of appeal are those of mixed law and facts and facts alone, and there being no evidence that the leave of Court was sought and obtained as required by law before the filing of the appeal, renders all the grounds incompetent liable to be struck out. Also alluding to the issues formulated by the appellant, counsel is of the opinion that the issues formulated from incompetent

grounds of appeal are also incompetent and liable to be struck out. It is the conclusion of the learned counsel that the appeal is palpably and irredeemably defective and incompetent, and the Court is urged upon to strike it out.

Responding to the objection filed, Mr. Nta A. Nta, of learned counsel for the appellant, and particularly at pages 1- 3 of the appellant’s reply brief, urged the Court to discountenance the objection, contending that the appeal being a final decision of the lower Court in suit No. HC/97/2007, by virtue of Section 241(1) (a) of the CFRN 1999 is of right and leave of Court is not a prerequisite. Also referring to a host of authorities in support of his contention, counsel maintained that the appeal having accrued to the appellant as of right, no leave is required, and the instant appeal competently before the Court. He urged the Court to dismiss the objection with costs of One Hundred Thousand Naira only.

I have in the circumstance accorded the submissions of the learned counsel due consideration. It seems clear to me that the contention of the respondent herein turns on whether the leave of the Court is required in the

filing of the appeal, on the basis that the six grounds of appeal raised by the appellant are of mixed law and fact, and or of facts alone. In other words, for resolution is whether the leave of this Court or that of the lower Court was required in the circumstance of the case.

Court to the Court below and even further to this Apex Court as provided by Sections 246 and 233 of the Constitution of the Federal Republic of Nigeria, 1979 and 1999 as amended respectively… It is trite law that rights of appeal are exercised according to law, rules and procedures governing such appeal. In other words it is incumbent upon the litigant to follow the law, rules and procedure governing the exercise of such right of appeal”.
By the provisions of Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, an appeal shall lie as of right from decisions of the Federal High Court or a High Court of a State to the Court of Appeal in the following circumstances:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone.
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of the Constitution.
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of this

Constitution has been, is being or is likely to be contravened in relation to any person.
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death.
(f) where an injunction or the appointment of a receiver is granted or refused amongst others. See Attamah vs. Anglican Bishops of the Niger (1999) 12 NWLR (pt. 633) 6 and Ecobank Nig. Ltd vs. Honey Well Flour Mills Plc (2019) ALL FWLR (pt. 1001) 811 @ 835, per Okoro JSC.
It is of interest to also reproduce the provisions of Section 242(1) of the same Constitution, which is to the effect that:
Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or the High Court or the Court of Appeal.
Mr. Nta A. Nta argued that the appeal under consideration is from the final judgment of the lower Court and by virtue of Section 241(1) (a) of the Constitution, appealable as of right. I tend to agree with him. The position of the law is that the right to appeal is constitutionally guaranteed to

the extent that an aggrieved party cannot be denied that right. See Elias vs. Eco Bank Nigeria Plc (2019) ALL FWLR (pt. 1006) 530 @ 547. The Apex Court in the recent case of Ecobank Nig. Ltd vs. Honey Well Flour Mills Plc (supra) clearly superimposed the fact that:
“However appeal as of right from the Federal High Court or High Court of a State or FCT is provided for in Section 241 (1) of the Constitution while appeal with the leave of Court is provided for in Section 242 (1) of the said Constitution… Section 241 (1) of the 1999 Constitution reproduced above provides circumstances in which an appeal shall lie as of right from decisions of the Federal High Court or a High Court of a State to the Court of Appeal. Such instances include:
(1) final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
I do agree that it is the law that where leave to appeal is a precondition for the filing of a notice of appeal, containing grounds of mixed law and fact, an appellant who files a notice of appeal without satisfying or obtaining the precondition,

labours in vain as the appeal is liable to be thrown out. On this, see the case of Abubakar vs. Dankwambo (2015) 18 NWLR (pt. 1491) 213, Nalsa & Team Associates vs. NNPC (1991) LPELR – 1935 (SC). The Apex Court in a host of cases, notablyNNPC vs. Famfa Oil Ltd (2012) 17 NWLR (pt. 1328)148, set out guiding principles in classifying whether the grounds of appeal are of mixed law and facts or that of law alone.
The learned counsel for the respondent relying on a plethora of cases, argued that the six grounds of appeal in the notice of appeal qualify as that of mixed law and facts upon which Section 242 (1) of the Constitution has application. That may be so. That qualification becomes irrelevant in view of the provisions of Section 241 (1) of the same Constitution, which grants the appellant a right to appeal as of right. I align myself with the position of the appellant, that the appeal having emanated from the final decision of the lower trial Court, the need for leave becomes unnecessary and the appeal in the instant is competently before the Court. In the event, all the cases cited by the learned Director though good authority in the

situations in which they were made, are inapplicable to the case at hand. I dutifully dismiss the preliminary objection, and now proceed to the consideration of the main appeal.

MAIN APPEAL.
After according the issues crafted by the two parties and suggested for the Court’s resolution a solemn but dispassionate consideration, my observation is that the two set of issues are identical, but for the language employed by the parties. In the resolution of this appeal, however, I elect to be guided by those issues identified by the appellant on the sole reason of him being the complainant, intending to treat the issues in the order in which they were argued.

ISSUE ONE
Whether the learned trial Judge was right to have rejected the evidence of Pw2, Mr. Paul Chidindu, a handwriting, signature and expert when his evidence and findings in respect of Exhibit 1 was not challenged or contradicted by the defendants/respondents.
The submission of the learned counsel for the appellant on the issue centres on whether exhibit 1, the alleged original copy of the approval given to appellant in respect of his block moulding plant at No. 12 Ayamudua Estate,

Calabar Municipality, Cross River State, was duly given by the relevant authority. He submitted that even though the Dw1 Stella Asuquo had denied signing exhibit 1, the lower Court was wrong to have concluded that the signature on exhibit 1 was different from that on exhibits 7 and 9, being the sample signatures of the said Dw1. He argued that mere dissimilarity of signature is not conclusive proof that they were not made by the same person. He cited the case ofEzechukwu vs. Onwuka (2006) 2NWLR (pt. 963) 151 in support of the legal statement. He continued to submit that Dw1 having denied signing exhibit 1, appellant called Pw2, a handwriting analyst who gave unchallenged evidence, thus tendering exhibit 12, being the report of his findings, exhibit 13 (i – v) a comparative analysis chart of the disputed signatures, all confirming that exhibits 1, 7 and 9 were made by Dw1. Counsel relied on the cases of Shell Petroleum Development Company (Nig) Ltd vs. Isaiah (1997) 6NWLR (pt. 508) 236, and Nicon vs. Nze (supra) amongst others to contend that where the evidence of an expert in his field remains unchallenged or uncontradicted, the Court should accept and

act on it. He submits that the lower Court had no legal basis rejecting the unchallenged and uncontradicted evidence of Pw2 on his findings in respect of exhibit 1, and thereby urged the Court to resolve the issue in its favour.

The response of the learned counsel for the respondent runs through pages 10 – 15 of the brief, wherein it was contended that the PW’s qualification was challenged having told a lie. He asserted that from the evidence in chief and under cross examination, the evidence of the Pw2 was doubtful and having been battered under cross examination, the trial Court was right to jettison his evidence, moreso when there were other pieces of evidence to justify the fact that the evidence of the Pw2 was challenged. He alluded to the fact that throughout the filing of the claimants claim, the purported permit was not exhibited, and referred to the evidence proffered by the defendant to the effect that the signature on the exhibit does not belong to Stella Asuquo, and the Court right in rejecting the evidence by the Pw2. He called in aid the decision of this Court in the case of Osawe & Anor vs. Idehen (2014) LPELR – 23330 (CA) to the

effect that the law permits a judge to form his own opinion as to handwriting, and what is more a judge is not bound to accept the evidence of a hand writing expert. He concluded by stating that a Court can reject even unchallenged expert evidence being that the specie of evidence is also subject to evaluation and there is nothing compelling the Court to accept or admit unreasonable and illogical evidence no matter the qualification of the expert. Counsel finally on the issue urged the Court to resolve same against the appellant.

On points of law, it was argued that Pw2, Mr. Chidindu was an expert by virtue of Section 68 (1) and (2) of the Evidence Act 2011, and the only valid and acceptable way of contradicting or challenging expert evidence was to call another expert on the same field with a view to contradicting him. The case of Nicon vs. Nze (supra) was relied upon for support. He argued that the respondents having failed and or omitted to call any expert to properly and successfully contradict or challenge the evidence adduced, the evidence stood good, unchallenged and uncontradicted and the lower Court ought to have relied on same in the

circumstance.

The issue agitated upon by the parties with regards to the issue turns on whether the lower Court was right rejecting the expert evidence rendered by the claimants through their Pw2 in proving that exhibit 1 rightly emanated from the respondents.

Now Section 101(1) of the Evidence Act, 2011 becomes relevant here and it reads:
“In order to ascertain whether a signature writing seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose”.
It is in consequence of the invocation of the above section of the law, that Pw2 was engaged to unravel whether exhibit 1 was actually signed by Dw1, Stella Asuquo, the Zonal Town Planning Officer, as alleged by the claimant. See Nweke vs. Nweke (2019) 15 NWLR (pt. 1694) 123 @ 189.
The Apex Court defined an expert witness as a person

who is specially skilled in the field in which he is giving evidence, and whether a witness can be regarded as an expert witness or not is a question of fact. See Barewa Pharm. Ltd vs. FRN (2019) 9 NWLR (pt. 1677) 331 @ 351.
The lower Court from pages 400 – 401 of the record examined whether the contention by the appellants that the evidence by the handwriting expert was not challenged nor controverted, and further that in the circumstance the Court is bound to act on it, reasoned and concluded that the signature on exhibit 1 is different from the signature on exhibits 7 and 9. The Court based its conclusion having rejected the evidence of the expert and personally compared exhibit 1 and exhibits 7 and 9 before him.
The argument by the appellant’s counsel is in tune with the position of the law in that a Court of law is expected to treat expert evidence with respect and candour, but is not invariably bound to accept such evidence. Thus the Court is not bound to accept the evidence of an expert, more so where his motive other than helping the Court is not disclosed. See Oando (Nig.) Plc vs. Adijere (W.A) Ltd (2013) 15NWLR (pt. 1377) 374 and

Akeredolu vs. Mimiko (2014) 1 NWLR (pt. 1388) 402.
Consequently, Courts have always been cautious relying on handwriting experts, as this may not be unconnected with the interest some of the expert witness(es) might have exhibited. See UTB vs. Awanzigana Enterprises Ltd (1994) 6 NWLR (pt. 348) 56, Waziri vs. The State (1997) 3 NWLR (pt. 496) 698 and Fayemi vs. Oni (2009) 7 NWLR (pt. 1140) 223.
In the instant case, the trial Court examined the arguments of counsel, and held the view contrary to the assertion of the claimant, that the evidence adduced by the expert called was challenged by way of cross examination, as well as the evidence of the Dw1 who denied the fact that the signature appearing on exhibit 1, was not her signature. The trial Court went further to now find that in comparing the signatures on exhibits 7 and 9 with that on exhibit 1, showed that the signature on exhibit 1 was quite different. It is clear therefore that in the consideration of the complainants case before the Court of trial, which showed that the respondents disputed the fact that it issued the appellant approval for the building of the block moulding plant in issue, and the

appellant in disputing the assertion, tendered exhibit1, intending to show that in fact it had approval from the authorities, necessitated the evidence of the expert being called.
Indeed, it is not in every case that an expert’s evidence becomes material. It has been held that expert evidence is only material mainly in technical matters where the Court invariably needs such assistance, if and where on the proven facts a judge can form a conclusion without help, or where from the evidence adduced the evidence of the expert cannot be true, then a Court of law can validly reject such evidence, more so where the report of the expert was procured in order to enhance the case of the other party. See Brown vs. The State (2012) 3 NWLR (pt. 1287) 207, Elf Nigeria Ltd vs. Sillo (1994) 6 NWLR (pt. 350) 258, AG Federation vs. Abubakar (2007) 10NWLR (pt. 1041) 1. I agree as canvassed that expert opinion should not normally be waived away as stated in Nicon vs. Nze (supra). It must however be clearly understood that the existence of relevant and credible evidence rebutting that of the expert would constitute a good reason for the Court rejecting it.

Egbujuo vs. The State (2016) LPELR-40938 (CA). It is the law in any case that the law permits a trial judge to consider and to form his own opinion with regards to the handwriting placed before him after due comparison, and entitled to use his own opinion and to discard that of the expert, as he is not bound to accept such evidence hook and sinker. See Osawe & Anor vs. Idehen (2014) LPELR – 23330 (CA), the lower Court having come to the conclusion that the expert evidence by the Pw2 was challenged, and having also considered the evidence on the issue before it proceeded to compare the disputed handwriting with exhibits 7 and 9, which are the actual signatures of the Dw1, his opinion to the effect that exhibit 1 was not that of the Dw1 cannot be questioned on the ground that the evaluation of evidence solely resides with the Court of trial and not having been shown to be incorrectly carried out, this Court will be loath to interfere. I do hold in the circumstance that the lower Court was right to have rejected the evidence of the handwriting expert exhibit 1, having come to the conclusion that the evidence was challenged and after undertaking personal

comparison of the signature on the disputed exhibit and other signatures on exhibits 7 and 9. This issue is therefore resolved against the appellant.

ISSUE TWO.
Whether flowing directly from the facts and circumstances of this case, the learned trial Judge was right to hold that it has not been proved that the respondents actually accepted service of the Court order dated 30th January, 2007.
The contention of the learned counsel on the issue is that service of Court processes on a party in a suit are proved by affidavit of service. Reference is made to Order 12 Rule 13 of the High Court (Civil Procedure) Rules of Cross River State 2008, and the case of Anyoha vs. Chukwu (2008) 4NWLR (pt. 1076) 31. He alluded to two affidavits of service by the Pw3 and Pw4 contending that the Dw2, one Major Raphael Ekeng having admitted that the said Court order was served on the 1st respondent on the 27th of February, 2007, it was wrong of the Court to hold that there was no proof as to who was served the Court process. He reiterated the fact that Dw2 having admitted service of the said Court order, and by virtue of Section 123 of the Evidence Act, 2011, facts

admitted need no further proof. In the determination of the date of the filling of the affidavit, it was contended that all the Court needs to do is to look at the record and resolve the issue, as held in the case of UDFU Sokoto vs. Balogun (2006) 9 NWLR (pt. 984) 124. Learned counsel posited that the lower Court erred in law in holding that it was not proved that respondent actually accepted service of the Court order dated the 30th of January 2007, when there was credible and enough evidence to the effect that respondents were duly served prior to the demolition of appellant’s block moulding plant on the 26th day of February, 2007.

The respondent’s response to the issue can be seen from pages 15 – 18 of the brief filed by them. Therein learned counsel alluded to the motion filed exparte in suit with No. HC/31/2007 and granted on the same date to operate pending the hearing of the motion on notice with a time line of 7 days. Learned counsel further alluded to the motion on notice dated the 7th of February, 2007 and served on the same date on one Archibong Inyang by the bailiff of Court. There is mentioned the other affidavit of service

granted on the 30th of January, 2007 and served on the 1st respondent on the 8th of February, 2007 through the secretary at the 1st respondent’s office. Even though Dw1 in her statement on oath admitted demolishing the appellant’s structure, denied receiving any order of Court or the knowledge of the existence of the appellant’s suit. Dw2 was also said to have stated that while the order was served on the respondent on the 27th of February, 2007, the demolition had taken place a day earlier. He argued that whether a document had been served or not is a question of fact to be established by evidence as held in Yadis Ltd vs. GNIC Ltd (2007) 30 NSCQR 495 @ 499, and queried why appellant failed to tender the dispatch book containing the date the order was served and the name and designation of the person that received the service contending that appellant having asserted must prove, failing which the Court should hold that the order of Court was not served on the respondents.

By way of reply on points of law, it does appear that learned counsel re-argued the issue wherein he maintained that by virtue of Order 12 Rule 9 of the rules of the

lower Court, showed that respondents were served with the motion on notice as well as the order of Court.
It is elementary the fact that service is a precondition for the exercise of jurisdiction, and where there is no service, or a procedural fault in service, the subsequent proceedings no matter how elegantly conducted becomes a nullity as the same goes to the competence of the action. See ACB Plc vs. Losada (Nig) Ltd (1995) 7 NWLR (pt. 405) 26, Scott-Emuakpor vs. Ukavbe & Ors (1975) 12 SC (reprint) 32 per Bello, CJN.

What is being disputed herein is the service of the Court order of the 30th January, 2007 on the respondents as contended by the appellant. Whereas appellants insist that the 1st respondents were served the motion and the Court order as deposed to by the bailiff of Court and attested by the bailiff’s affidavit of service, respondents strongly contend that they were only served the Court’s order a day after the execution of the act being complained of. It is the holding by the Supreme Court in Ahmed vs. Ahmed (2013) LPELR – 21143, that an affidavit of service is meant to enable defendant to be aware of the case against him

and also prepare for his defence; and in the nature of the case before the Court, the service of the order on the respondents as alleged was to inform the defendant of the order of Court on the matter and the need for compliance. The erudite jurist however stated in the case cited, that:
“An affidavit of service is not conclusive proof of service of process. The burden of proving service rests on the person asserting that there was service. An affidavit of service must contain details on the following, when, who, what and where.”

Let us now examine the issue at hand, taking the direction of the Supreme Court case as a template. The affidavit of service in issue can be found at page 27 of the record, wherefore one Archibong Okon Effiom of the High Court Registry Calabar swore to have served the defendant on the 5th of February 2007 through the secretary of the defendant’s office Calabar with a Court order. The affidavit of service is dated the 8th of February, 2007. Of note is the fact that the affidavit while stating that the order of Court was served on the 5th of February, 2007 on the secretary of the respondents, the respondents

on the other hand dispute the service of the two documents, and filed a counter affidavit to that effect on the 12/8/08. I will reproduce paragraphs 3, 4 and 5 thereof for ease of reference.
3. The respondents have seen the affidavit of service of the Court order and the motion on notice deposed to by one Archibong Okon Effiom and Ayimo E. Ayimo purporting to have served the court order and the motion on notice on the respondent on the respondent through the secretary, and one Archibong Inyang on the 5th February, 2007 and 7th February, 2007 respectively.
4. The averments contained in the affidavits of service deposed to by Archibong Okon Effiom and Ayimo E. Ayimo are false. There is nobody by name Archibong Inyang in the employ of the respondent.
5. The Court order was served on one of the respondents casual labourers, Mr. Odoudo Ekpo residing at Edik Idim in Akpabuyo Local Government Area on the 27th February, 2007 and he brought same to the attention of the respondents through the deponent herein.

In other words, the contention of the respondents herein is that the order of the Court under reference was served on them a day after the

plant of the plaintiff had been pulled down, and it is untenable and illogically unsustainable to argue that the respondents were in contempt of an order of Court which was not served as at the demolition of the plaintiff’s plant.

Clearly the counter affidavit introduced material depositions, to which the plaintiff failed to controvert either by way of a further and better affidavit, or by the production of the dispatch book, which plaintiff witnesses stated bore the names of the persons served as well as the date of service. In the spirit of the decision of Ahmed vs. Ahmed (supra), the affidavit of service which initially is the prima facie evidence of service having been rebutted fails in establishing that respondents were duly served as claimed. Contrariwise it is safe to hold that indeed the person allegedly served the motion papers is not a staff of the respondents, and further that the respondents became aware of the service of the Court order only through one of their named casual workers, who was served on the 27th of February, 2007, a day after the demolition of the appellant’s plant. I agree that in such instance, the respondents

cannot validly be held in contempt of an act done without the knowledge of the order of Court. The trial Court was accordingly right in holding that appellants failed to prove before it that respondents actually accepted service of the Court order dated the 30th of January, 2007, later than the 27th of February, 2007, and that being the case, respondents cannot also be liable for contempt of the order. This issue is also resolved against the appellant.

ISSUE THREE.
Whether from the facts and circumstances of this case the demolition of the appellants block moulding plant by the respondents was not illegal, unlawful and contemptuous of the Court order of 30th January, 2007.
It is the submission of the learned counsel for the appellant that appellant’s block moulding plant was approved by the relevant authority as shown by exhibit 1. Alluding to the decision of the Apex Court in the case of Garba vs. FCSC (1988) 1 NWLR (pt. 71) 449, learned counsel argued that once a dispute arises between parties and the Government or authority, and the dispute brought to Court, the duty of Government is to allow the law and the judicial process to take its

cause before acting. He submits that there was credible evidence to the effect that appellant obtained and served the respondents order of Court dated the 30th of January, 2007 which restrained the respondents from demolishing the block moulding plant of the appellants, but that notwithstanding the respondents went ahead to demolish the plant on the 26th of February, 2007 in total disobedience to the order of Court, and the case of Akinpelu vs. Adegbore (2008) 10 NWLR (pt. 1096) 531 was cited in support of the proposition that a party can be held to be liable to the disobedience of Court order where the disobedience precedes the order of Court. Further relying on the case ofBabatunde vs. Olatunji (2000) 2 NWLR (pt. 646) 557 @ 572, it was contended that no one has the right of choice on which Court order to obey and which not to obey and insisted that the demolition of the appellant’s block Moulding plant after the receipt of the Court order by the respondent was illegal, unlawful and contemptuous of the Court order made on the 30th of January, 2007.

In response, the learned counsel for the respondent alluded to sections of the Cross River State

Building regulations 1984, the Cross River State Building regulations (Amendment) Regulations, 1987, contending that two questions arise for determination. First, did the appellant establish that stop work and demolition notices were served on him as required by the regulations afore mentioned, and secondly whether appellant did establish that the Court order was served on the respondent before the demolition of the plant? As to make the demolition contemptuous. Learned counsel analysed the claimants’ case before the lower Court, to contend that appellant failed to prove that the demolition of his structure was unlawful or illegal. On whether the demolition was done in contempt of the order of Court, learned counsel analysed the issue of the service of the order to the conclusion that the order having been served on the respondents after the demolition exercise, the issue of contempt of such order becomes a nonstarter. He thereby urged the Court to resolve the issue against the appellant.

This issue appears to have been partly settled in the resolution of issue two to the effect that appellant failed to prove that the order of Court granted on the

30th of January was duly served on the respondent before the demolition of his brick moulding plant, and cannot be liable for disobeying an order he is unaware of. I must also resolve this issue against the appellant, and hold that the lower Court was right in holding that the demolition of the appellants block moulding plant by the respondents under the circumstance was not illegal, unlawful nor contemptuous, having complied with all the relevant laws, including the issuance of notices before the demolition exercise.

ISSUE FOUR.
Whether flowing from the facts and the evidence in this case before the learned trial Judge, the learned trial Judge was right to conclude that appellant did not challenge the service of the three notices dated the 11/9/2006, the notice dated 18/9/2006 and the notice dated 14/9/2006 allegedly served by the respondents on the appellant.
In urging the Court to resolve the issue in its favour, counsel made reference to copious evidence depicting the denial and challenge of the three notices as afore stated, further stating that from paragraph’s 5 – 15 of the appellants statement of claim, paragraph 8

– 18 of the written address by the appellant herein and paragraph 10 of the appellants final written address, appellant raised the issue of fraud against the respondent. He then referred to the decisions of Ogunleye vs. Oyewole (2000) 14 NWLR (pt. 687) 290, Etaluku vs. NBC Plc (supra) and Olufosoye vs. Olorunfemi (1989) 1NWLR (pt. 95) 26 @ 29 and submitted that the trial Court had no basis in concluding that the claimant did not challenge the services of the notice on him.

From pages 25 – 28 of the respondent’s brief, containing the response of the respondents on the issue, learned counsel made reference to the notices issued to the appellant, and the blanket averment of the appellant in their statement of claim as well as written statement on oath, and further made reference to the defendants statement of defence and the copious evidence of the Dw1 and Dw2, positing that the trial Court was right in holding that the evidence of the DW1 and DW2 on the issue was never challenged. On the appellant’s submission that he had raised the issue of fraud in his written address, it was argued that the Court ought to discountenance the submission

since any allegation of fraud must be pleaded, particulars supplied and strictly proved, being that an allegation bordering on fraud is criminal in nature. The case of Otukpo vs. John & Ors (2012) LPELR-25053 (SC) was relied upon amongst many others. He submitted based on the authority of Chiokwe vs. The State (2012) LPELR-19716 (SC) that address of counsel cannot take the place of evidence, as it only serves as a reminder to the evidence proffered, and based on the foregoing, counsel urged the Court to resolve the issue against the appellant.

Let me start by aligning with the learned counsel with regards to the settled position of the law that where fraud is alleged, it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and to enable him defend it. SeeHigh Grade Maritime Services Ltd vs. First Bank of Nigeria Ltd (1991) LPELR – 1364 (SC).
Nnaemeka Agu JSC, in Ojibah vs. Ojibah (1991) 5 NWLR (pt. 191) 296; explained the issue further, when he stated that:
“In my view fraud carries much wider implications than impugning the truth or

correctness of a document. At common law, its foundation is deceit of which the intention to mislead and a false representation are material. In equity it is, in sum, infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance. Although the word fraud need not be used, one of the most fundamental rules about the pleading of fraud is that the pleading must contain precise but full allegations of facts and circumstances, with all necessary particulars, leading to the reasonable inference that the fraud was the cause of the loss complained of”. See also Elecktrotechnische Fabrik Schmidt and Co. vs. Bateria Slany Narodni Podnic (1972) LPELR – 1109 (SC), George vs. Dominion Flour Mills Ltd (1963) ALL NLR 70, Okonkwo vs. Cooperative and Commerce Bank (Nig) Plc & Ors (2003) LPELR – 2484 (SC).
The claimant having failed to comply with this fundamental requirement of law, he cannot be heard in address stage to validly raise the issue of fraud. Also looking at the evidence before the Court, particularly the evidence of Dw1 and Dw2, there was adduced before the Court ample evidence on the notices served on the

appellant which led to the demolition of the property being complained of. I agree with the respondent counsel that the lower Court was right from the evidence before it in holding that the notices served on the appellant were not challenged as demanded by law and the lower Court right to so hold. I also resolve the issue against the appellant.

ISSUE FIVE.
Whether flowing from the facts and circumstances of this case the learned trial Judge had properly evaluated the evidence before him in suit No. HC/97/2007.
The contention of the learned counsel on the issue is that the trial Court failed to properly evaluate the evidence before it, and referred to the cases of Nwole vs. Iwuagwu (2005) 16 NWLR (pt. 952) 543 and Etaluku vs. NBC Plc (2004) 15 NWLR (pt. 896) 370, Tippi vs. Notani (2011) 8 NWLR (pt. 1249) 285, submitting that the failure of the Court below to properly evaluate the evidence before him led to a miscarriage of justice, for which this Court is being called upon to interfere.

On whether the trial Court properly evaluated the evidence before it, the learned counsel for the respondent, argued that there is no merit in the appellant’s

submission, and argued that a trial Court is validly concerned with the issues joined by the parties, and goes further to state that from the evidence adduced, and which the lower Court appropriately evaluated, this Court has no business interfering with. He reiterated the state of law to the effect that a trial Court enjoys the monopoly of evaluating the evidence of witnesses, and contends that the burden lies on the appellant to show how the findings are perverse as to warrant the appellate Court to intervene. The appellants purported reply on points of law being a re argument of the issue, same is discountenanced.

The question for resolution with respect to the instant issue simply lies on the finding, whether the lower Court properly evaluated the evidence proffered before it in arriving at its conclusion. This is so, because the law places on the trial Court the primary duty of evaluating the evidence adduced before it, ascribing probative value to it before arriving at a conclusion one way or the other. As stated by the apex Court in Iriri vs. Erhurhobara (1991) LPELR – 1536 (SC) per Olatawura JSC, it is the duty of the trial Court to make

primary findings of fact, and this duty unless shown to have been improperly done or done not according to well laid down principles of law, an appellate Court cannot interfere there with. See Dagaci of Dere & Ors vs. Dagaci of Ebwa & Ors (2006) LPELR – 911 (SC), AG Ekiti State & Ors vs. Daramola & Ors (2003) LPELR – 606 (SC).

The state of the law still remains as stated by this Court in Nwaobia & Ors vs. Uche Onwuka & Ors (2011) LPELR – 8827 (CA) per Ogunwumiju JCA as he then was, in that there is a rebuttable presumption in law that the findings of a trial Court are correct, and the duty to dislodge such presumption rests on the party challenging. The party challenging the evaluation of the evidence done by the trial Court must establish that the lower Court’s primary duty of evaluation was not carried out or that it was done in a manner inconsistent with the law. See Afekhuai & Anor vs. Mrs Bisi Odubona (2017) LPELR – 42889 (CA).
Plainly, appellant situated his argument on the issue on the same issues argued under issues 1 – 4, to contend that the findings of the lower Court were not

supported by evidence and therefore perverse in line with the decision in Etaluku vs. NBC Plc (supra). This submission by the learned appellant’s counsel cannot stand in view of the resolution of the four preceding issues against the appellant. The consequence is that even though the cases cited by counsel on the issue represents the correct position of the law on the facts on which it was decided, they remain inapplicable to the instant set of facts. I resolve the issue against the appellant.

ISSUE SIX.
Whether the judgment of the learned trial Judge in suit No. HC/97/2007 was not against the weight of evidence.
The appellant’s complaint on the issue is that the judgment of the lower Court is not supported by the weight of evidence on record as to justify the judgment of the Court. Relying on the decision ofEtaluku vs. NBC Plc (supra), it was contended that there were no facts to justify the findings of the Court below. He therefore submits on the authority of Aromolaran vs. Oladele (1990) 7 NWLR (pt. 162) 359, that it is incumbent on a judge in the face of conflicting evidence to see which of the evidence preponderates and to

reach a decision not losing sight of the proof adduced and the state of the law. He submitted that the judgment of the Court below was against the weight of evidence being not supported by evidence, and therefore called upon the Court to interfere.

Mr. Asuquo for the respondent drew the court’s attention to the case of Abisi & Ors vs. Ekwealor & Anor (1993) LPELR – 44 (SC) on the consideration of the implication of when an appellant complains that a judgment is against the weight of evidence, and referred to the oft cited case of Mogaji vs. Odofin (1978) 4SC 91 per Fatayi-Williams JSC, that when an appellant complains that a judgment is against the weight of evidence, all he is saying is that where the evidence adduced by the parties is balanced against each other, that of the appellant would preponderate. He alluded to the legal principles established in the case of Lawal vs. Adebayo & Ors (2009) LPELR – 4023 (CA), contending that the principal issue before the lower Court was whether appellant proved that the demolition of the Block Moulding shed by the respondents was lawful or not and whether appellant is entitled to

damages therefrom. Relying on a host of cases, counsel submitted that where a trial Court after analysing and appraising the evidence adduced comes to a conclusion preferring one version to another, a Court sitting on appeal will not intervene. He insists that where a Court of trial makes or arrives at findings of fact, the appellate Court would not interfere with such findings unless the findings are perverse. He urged the Court in conclusion to resolve the case in favour of the respondent. The appellant in his reply on points of law is equally re-arguing the issue.

Both parties are on common ground with respect to the implication of when an appellant complains that the judgment is against the weight of evidence adduced. The authorities on the issue are too numerous, it suffices to mention the cases of Mogaji vs. Odofin (supra), Eki vs. Giwa (1977) 2SC 131 @ 133, Ogboda vs. Adulugba (1971) 1 ALL NLR 68 amongst so many others.
The general principle established through case law is that appellate Courts do not normally disturb findings of fact arrived at by a Court of trial, unless and until it is shown that from the printed records, such findings

cannot be supported from the evidence or where they are not the proper conclusions or inferences to be drawn from the evidence.. See Oguntade JSC in Oyewole vs. Akande (2009) 15 NWLR (pt. 1163) 119. See also Lawal vs. Adebayo (2009) LPELR – 4023 (CA), Lion Buildings Ltd vs. M. N. Shadipe (1976) 12 SC 139.

The case made out by the appellant is clear and to the point. It is as rightly pointed out by the learned counsel for the respondent to the effect that his moulding block plant was illegally demolished by the respondents. The trial Court in my view properly appraised and gave value to the evidence adduced, concluding that appellants failed to prove their case. Having also given due consideration to the evidence before the lower Court, I am left in no doubt that the conclusion by the lower Court couldn’t have been otherwise. My humble but firm view is that the findings of the lower Court were amply supported by evidence, and this Court cannot in the circumstance interfere with such findings and the conclusion arrived at. I fail to see any merit with respect to the appellant’s argument in the issue and thereby resolve the same against the

appellant.

All issues having been resolved against the appellant, the inevitable conclusion is that the appeal is lacking in merit and deserves to be dismissed. I accordingly dismiss the appeal and thereby affirm the decision of Hon. Justice Akon B. Ikpeme in suit with No. HC/97/2007; between Victor Samuel Jaja and Calabar Urban Development Authority and two Ors, delivered on the 17th day of February, 2014, wherefore the plaintiffs claim was dismissed is hereby affirmed.
I make no order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of previewing the judgment just delivered by my learned brother, Hamma A. Barka, JCA.
I entirely agree with the reasoning and conclusion arrived at and thereby dismissing the appeal as unmeritorious.
I also dismiss the appeal and endorse the consequential orders.

Appearances:

NTA A. NTA ESQ. For Appellant(s)

E. ASUQUO (Asst. Director, Civil Litigation) CRS For Respondent(s)