KAMBA ENGINEERING SERVICES CO LTD & ORS v. FIRST CHOICE PROPERTIES LTD & ORS
(2022)LCN/16979CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, November 21, 2022
CA/ABJ/CV/1025/2020
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. KAMBA ENGINEERING SERVICES CO. LTD 2. FA’ASH INTERNATIONAL LTD 3. SAMBALKO ENTERPRISES CO. LTD 4. LEKKI GARDENS ESTATE LTD APPELANT(S)
And
1. FIRST CHOICE PROPERTIES LTD 2. KAMBA INVESTMENT CO. LTD 3. ALHAJI IBRAHIM MOHAMMED KAMBA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE BURDEN OF PROVING THAT A PARTY IS GUILTY OF CRIME IN A CIVIL PROCEEDING
The law is well settled that even though it is true that in civil proceedings, the preponderance of probability may constitute a solid and sufficient ground for a verdict, this is however subject to the provisions of Section 137 of the Evidence Act 2011, to the effect that if there is a commission of crime by a person in a civil proceeding and it is directly in issue in that proceeding, it must be proved beyond reasonable doubt. The standard of proof is no longer on a balance of probabilities but on proof beyond reasonable doubt. See the cases of OKWUARUME VS. OBABOKOR (1966) NMLR 47 and BENSON IKOKU VS ENOCH OLI (1962) ALL NLR 194.
The burden of proving that a party is guilty of a crime in a civil proceeding is subject to Section 139 of the Evidence Act, and it is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See the case of EDOKPOLOR & CO LTD VS. OHENHEN (1994) 7 NWLR (PT. 358) PAGE 511. In the instant appeal, forgery is a criminal offence and the Appellants are saddled greatly to prove same beyond reasonable doubt. PER IDRIS, J.C.A.
DEFINTION OF THE OFFENCE OF FORGERY
In the case of N. B. A. VS. UBURU (2019) 6 NWLR (PT. 1668) PAGE 378 AT 385, forgery was defined as an act of fraudulently making a false document or altering a real document to be used as if genuine. Forgery was further defined as the noun form of the verb “forge” and to forge means to make a copy or an imitation of something in order to deceive people. It also means to fabricate by false imitation. PER IDRIS, J.C.A.
ESSENTIAL ELEMENTS OF THE OFFENCE OF FORGERY
Firstly, I must cite the Supreme Court case of OBIOMA VS. STATE (2020) 3 NWLR (PT. 1710) PAGE 45 AT 62 PARAS G – H, where it was held per Kekere-Ekun, JSC that the essentials of forgery are:
“1. That there is a document or writing;
2. That the document or writing is forged;
3. That the accused person(s) forged the document(s) or writing in question;
4. That he intended the forged document or writing to be acted upon to the prejudice of the victim in the belief that it is genuine.” PER IDRIS, J.C.A.
WHETHER OR NOT THE LAW CAN FORCE A PARTY TO CALL A CERTAIN PERSON AS A WITNESS IN PROOF OF HIS CASE
Even though it is trite that the law cannot force a party to call a certain person as a witness in proof of his case, it is dangerous and fatal for a party to omit vital witnesses that can help in proof of his case against another.
In the case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) PAGE 663 AT 696 PARAS A – B, it was held:
“A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”
In the case of STATE VS. NNOLIM & ANOR (1994) LPELR – 3222 (SC), it was held per Adio, JSC that:
“The question is: who is a vital witness? A vital witness is a witness whose evidence may determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.” PER IDRIS, J.C.A.
WHETHER OR NOT A PERSONS SIGNATURE DEEMED TO HAVE BEEN FORGED NEEDS TO BE CALLED AS A WITNESS TO PROVE WHETHER OR NOT THE SIGNATURE BELONGS TO HIM
Even though, it is the law that the person whose signature is deemed to have been forged need not be called as a witness to prove whether or not the signature belongs to him, he must be called as a witness if the truth of the content of the document is to be established.
In the Supreme Court case of OBIOMA VS. STATE (2020) 3 NWLR (PT. 1710) PAGE 45 AT 62 PARAS G – H it was held per Eko, JSC that:
“… the appellant has made so much fuss on the inability of the prosecution to call Dr. Iboko whose signature was allegedly forged. The Appellant therefore contends that the failure to call Dr. Iboko was fatal to the prosecution’s case. The essence of calling Dr. Iboko is that through his evidence, it will be established that his signature was in fact forged. It is for the proof or otherwise that the disputed signature was forged. The purpose can be served by any other evidence establishing that fact. That is, if without calling Dr. Iboko the prosecution discharges the onus of proving that his signature was forged, then it would be no further need to call him to testify that his signature was forged. The dicta in WAMBAI V KANO N.A (1965) NMLR 15 and ALAKE V THE STATE (1992) 9 NWLR PART 265 PAGE 260 supports this proposition… the fact that Dr. Iboko who made exhibit 10 did not testify as a witness does not ipso facto render exhibit 10 inadmissible in evidence. It is admissible in evidence as a real evidence and for the fact that it was indeed made, in the historical sense. If it is, however, proposed to establish the truth of the contents of the statement; in that circumstance, the statement becomes inadmissible hearsay. AZEEZ OKORO V THE STATE (1998) 14 NWLR PART 584 PAGE 181 SC AT PP 218-219.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a further and better Amended Writ of Summons dated the 7th of September, 2017, the 1st – 4th Appellants sued the 1st – 3rd Respondents before the High Court of the Federal Capital Territory sitting at Abuja, seeking for the following reliefs:
(a) A Declaration that the 1st Plaintiff is the rightful allottee/owner of all that property known as Plot No 1750 having an area of approximately 18.06Ha in Cadastral Zone CO4 of Dape District Abuja with New File Number: MISC 104097 Right of Occupancy date: 30/06/2009.
(b) An Order of this Honourable Court restraining the Defendants, their agents, allies, workmen, associates or whosoever from further trespass into the 1st Plaintiff’s Plot No. 1750 having an area of approximately 18.06Ha in Cadastral Zone CO4 of Dape District Abuja, with New File Number: MISC 104097, Right of occupancy date: 30/6/2009.
(c) N50,000,000 damages against the Defendants for the trespass committed on the 1st Plaintiff’s plot known as Plot No. 1750 having an area of approximately 18.06Ha in Cadastral Zone CO4 of Dape District Abuja, with New file Number: MISC 104097 Right of Occupancy date: 30/06/2009.
(d) N48,950,000 damages against the Defendants for the Economic trees and cash crops, properties of the 1st Plaintiff, destroyed and uprooted by the Defendants from the 1st Plaintiff’s Plot No 1750 having an area of approximately 18.06Ha in Cadastral Zone CO4 of Dape District Abuja with New File Number: MISC 104097, Right of occupancy date: MISX 104097, Right of Occupancy date: 30/06/2009.
(e) N100,000,000 general damages against the Defendants for loss of business goodwill, loss of profit, humiliation, trauma and embarrassment caused the Plaintiffs.
(f) Cost of this suit.
The Appellants filed their further and better Statement of Claim wherein it was stated that the 2nd Appellant, 1st and 2nd Respondents are companies registered under the Companies and Allied Matters Act, the 3rd Respondent is a director of the 2nd Respondent and the 3rd and 4th Appellants were joined to this suit by an order of Court at the instance of the 1st Respondent’s application, seeking for them to be joined as parties.
It was the Appellants’ case at the trial Court, that on the 30th of June, 2009, a Statutory Right of Occupancy was granted in favour of the 1st Appellant by the Minister of Federal Capital Territory, Abuja in respect of Plot No. 1750 having an area of approximately 18.06Ha in Cadastral Zone CO4 of Dape District Abuja with New File Number: MISC 104097, Right of Occupancy date: 30/06/2009. However, the 1st Appellant offered to sell the said land at the fixed price of N100,000,000 when it was facing some financial constraints.
The 1st Appellant stated that the 2nd Appellant approached them and indicated interest in purchasing the land. A Deed of Assignment and Power of Attorney was prepared and signed by both parties. However, the 2nd Appellant could not make immediate payment of the agreed purchase price and the 1st Appellant had to retrieve all the copies of the already signed Deed of Assignment and Power of Attorney.
The 1st Appellant re-advertised the sale of the land and one Alhaji Ibrahim Mohammed Kamba, who is the 3rd Respondent and a director of the 2nd Respondent approached the 1st Plaintiff and offered to buy the land for the sum of N60,000,000 and the 1st Appellant insisted that the fixed sum of N100,000,000 was non-negotiable. The 3rd Respondent went ahead to pay the sum of N10,000,000 and then N6,000,000, making it a total sum of N16,000,000 paid out of the agreed purchase price.
The Appellants further averred that the 3rd Respondent reached out to the 1st Appellant that he could not afford to pay the outstanding balance of N84,000,000 due to some financial challenges and requested for the refund of the N16,000,000 already paid. The 1st Appellant claimed to try to refund the said money but the 3rd Respondent did not make it possible for the money to be refunded.
The 1st Appellant again re-advertised the sale of the land. By this time, the 2nd Appellant came back to indicate interest in buying the land for the sum of N100,000,000 and payment was made in full. Agreements were signed and the sale transaction was concluded.
The 3rd Respondent then went to the FCT Police Command, Abuja and laid a complaint, claiming he had made full payment for the land and thus, he is the rightful owner. The 1st Appellant’s director, one Anas Musa Sabi was invited to the police station, interrogated and detained and was subsequently taken to the Upper Area Court, Gudu Abuja and was arraigned and detained for a few days and was later granted bail on allegation of criminal conspiracy, forgery and cheating.
The 3rd Respondent also filed a civil suit before a High Court of the FCT against the 1st Appellant. The Court however, made an order restraining all parties from further acts of clearing and development on the land pending the hearing and determination of a motion on notice.
The 1st Appellant then found out that there were acts of trespass and destruction on the said plot as a director saw earth-moving equipment defacing the plot, destroying and uprooting all economic trees and cash crops on the said land. It is the 1st Appellant’s case that the value of all the trees on the said land amount to N43,350,000 being the value of matured economic trees, properties destroyed by the Respondents, thus leading to loss of business goodwill, loss of profit accruing from the said plot and the 1st Appellant and her directors were humiliated, traumatized and embarrassed.
The 1st Respondent entered appearance and filed her Statement of Defence and a counterclaim, seeking for an order for specific performance directing the Appellants to perfect the sale and transfer, sought for an injunction perpetually restraining the Appellants from disturbing his ownership and possession of the land in issue, a total of N150,000,000 as damages and N48,950,000 as damages for the economic trees and crops on the land.
The 2nd Respondent and the 3rd Respondent filed their separate statement of defence and counterclaim, wherein the 3rd Respondent stated that he is the alter ego and directing the mind of the 2nd Respondent and the 1st Appellant never told him he had advertised the land to anyone at all. He stated that they agreed on the sum of N60,000,000 for the land and that he paid same in installments, i.e. he first paid N10,000,000, N6,000,000 and finally N44,000,000 in dollars and an acknowledgement purchase receipt signed by the director of the 1st Appellant, Deed of Assignment, and Power of Attorney was executed. The 3rd Respondent further stated that the 1st Appellant went ahead and obtained the consent of the Honourable Minister of the FCT and all the title was perfected. The 3rd Respondent stated that he paid the sum of N60,000,000 in full and that there was never a time he told the 1st Appellant that he could not make the payment due to financial constraints.
The 3rd Respondent then proceeded to sell the land to the 1st Respondent. However, thinking he had concluded the sale of the land totally, the 3rd Respondent claimed he was visited by the 1st Appellant’s alter egos that they were no longer interested in the sale of the land and were willing to refund the already paid sum of N60,000,000. The 3rd Respondent claimed to have walked them out of his house due to his dissatisfaction with the ridiculous request. And that he indeed invited the police to intervene in the matter and he also instituted both criminal and civil suits against the 1st Appellant and its alter egos. The 3rd Respondent urged the trial Court to dismiss the action and he filed a counter claim.
In his counterclaim, the 3rd Respondent averred that he bought the said land in dispute using the name of the 2nd Respondent from the 1st Appellant for the sum of N60,000,000 only and he went ahead to sell the land to the 1st Respondent. The 3rd Respondent further stated that he gave possession to the 1st Respondent and the 1st Appellant was fully aware of everything. He further averred that the 1st Appellant made no attempts to refund the said sum of N60,000,000 which he paid now that there is a dispute.
The 3rd Respondent sought for the following reliefs in his counterclaim:
(a) A DECLARATION of Court that without a Court order first pronouncing the transaction of the sale of Plot 1750, Cadastral Zone CO4, Dape District, Abuja by the 1st Plaintiff to the 3rd Defendant/ Counter-Claimant whether to him personally or to his company, the 2nd Defendant, as ineffectual, void and inconclusive, there is no way the same 1st Plaintiff can proceed thereafter to sell the same Plot 1750, Cadastral Zone CO4, Dape District, Abuja to either the 2nd Plaintiff, the 3rd Plaintiff, the 4th Plaintiff or to any other person, whatsoever.
(b) A DECLARATION OF COURT that the 1st, 2nd and 3rd Defendants are not trespassers into Plot 1750 Cadastral Zone CO4, Dape District, Abuja granted to the 1st Plaintiff by the Hon. Minister of the Federal Capital Territory, Abuja on 30/06/2009 under Land Title File No. MISC 104097 but were in lawful possession of same having been let into possession by the 1st Plaintiff when the 1st Plaintiff sold same to the 3rd and 2nd Defendants/Counter claimant who in turn sold same to the 1st Defendant to the knowledge and participation of the 1st Plaintiff.
(c) A declaration of Court that the 1st Plaintiff sold Plot 1750 Cadastral Zone C04, Dape District, Abuja to the 3rd and 2nd Defendants/Counter claimant and having sold Plot 1750 Cadastral Zone C04, Dape District, Abuja to the 3rd and 2nd Defendants cannot now resile, unilaterally from the same on the contention that the purchase price of N60,000,000 only was not the agreed purchase price but some other higher price.
(d) A declaration of Court that the 1st Plaintiff is bound in specific performance to carry out and complete the transaction of the sale of Plot 1750 Cadastral Zone C04, Dape District, Abuja by ensuring that the letter she wrote to the Hon. Minister for the FCT/ Director of Land seeking Consent for the Assignment of the Plot to the 1st Defendant and to register the Power of Attorney between the 1st Plaintiff and the 1st Defendant is brought to fruition.
(e) A declaration of Court that the 3rd Defendant/Counter- Claimant whether by himself or through his company, the 2nd Defendant having purchased Plot 1750 Cadastral Zone C04, Dape District, Abuja from the 1st Plaintiff can in turn sell same to the 1st Defendant and did sell same to the 1st Defendant (First Choice Properties Ltd) to the knowledge and participation of the 1st Plaintiff.
(f) An order of Court granting specific performance by directing the 1st Plaintiff to within one month of the judgment of the Court, complete the transaction of the sale of Plot 1750 Cadastral Zone C04, Dape District, Abuja to the 1st Defendant as prayed for in prayer “d” above or by writing to the Hon. Minister of the Federal Capital Territory to secure his Consent for the transaction/assignment of the disputed plot to the 3rd Defendant/Counter Claimant and securing his consent to register the Power of attorney between the 1st Plaintiff and the 3rd and 2nd Defendants/Counter claimants failing which this Order should served on the Hon. Minister of the Federal Capital Territory commanding same.
(g) An order of Court setting aside the purported sale of Plot 1750 Cadastral Zone C04, Dape District, Abuja by the 1st Plaintiff whether to the 2nd Plaintiff, 3rd Plaintiff, the 4th Plaintiff jointly and/or severally or to any person whatsoever and howsoever when the transaction between the 1st Plaintiff and the 3rd Defendant in respect of the same plot was still extant, subsisting and in force.
(h) AN ORDER OF COURT awarding the sum of N20,000,000 against the 1st Plaintiff for avoiding the transaction of the sale of Plot 1750 Cadastral Zone C04, Dape District, Abuja to the 3rd Defendant.
(i) AN ORDER OF COURT awarding the sum of N20,000,000 against the Plaintiffs in favour of the 3rd Defendant whether by himself or through the 2nd Defendant for trespassing into Plot 1750 Cadastral Zone C04, Dape District, Abuja and interrupting the business of the 3rd Defendant.
(j) COST of the action against the 1st Plaintiff as may be adjudged appropriate in the complete discretion of the Court.
The 1st – 3rd Appellants filed a Reply to the 3rd Defendant’s Statement of Defence and a defence to his counterclaim. In the reply, they still insisted that the 3rd Respondent through the 2nd Respondent made payment of the total sum of N16,000,000 leaving the outstanding sum of N84,000,000 as the agreed purchase price was N100,000,000. They further stated that the Memorandum of Understanding, Power of Attorney, Deed of Assignment, Sale Agreement, consent letter pleaded by the 3rd Respondent were all forged. They also averred that the letter of acknowledgement of one of the directors of the 1st Appellant, receiving the payment of N44,000,000 was a complete forged document. He also denied ever visiting the 3rd Respondent to rescind the sale transaction.
In their defence to the 3rd Respondent’s Counterclaim, the 1st – 3rd Appellants went ahead to plead the particulars of the forgery and denied all the averments statement therein.
While delivering the judgment, the learned trial Judge held that the Appellants did not establish their claims against the Defendants and are not entitled to the reliefs they sought and thus, the suit was dismissed for lack of merit. With regard to the case of the 1st Respondent and his counterclaim, the trial Court granted a declaration that the 1st Plaintiff (now Appellant) had no title to transfer to the 2nd Plaintiff (Appellant) or anybody at all.
Judgment was entered in favour of the 1st, 2nd and 3rd Respondent and the learned trial Judge held that there was a binding contract between the Appellants and the 2nd Respondent for the sale of the property for N60,000,000. The learned trial Judge made an order for specific performance against the 1st Appellant, asking it to apply to the Honourable Minister of the FCT for the consent for the land and also made an order of perpetual injunction restraining the Appellants or anyone from entering into the land in issue.
Obviously dissatisfied with the judgment of the trial Court below, the Appellants have approached this Court and filed a Notice of Appeal.
The Amended Notice of Appeal is dated the 4th day of October, 2021 and signed by Olayinka L. Arasi Esq raising twelve grounds of appeal.
The Appellants filed their Amended Brief of Argument dated the 4th day of October, 2021 and settled by Olayinka L. Arasi Esq. In the said amended brief of argument 8 (eight) issues for determination were distilled as follows:
(1) Whether the trial Court was right when it dismissed the Appellants’ case and granted the Respondents’ counter-claims despite the unchallenged evidence of fraud and forgery adduced by the Appellants? (Distilled from Ground 1 of the Notice of Appeal)
(2) Whether the trial Court was right to have relied on false evidence given by the 1st Respondent and by extension the 2nd and 3rd Respondents? (Distilled from Ground 2 of the Notice of Appeal)
(3) Whether the lower Court was right to have relied on Exhibits DW1A-C to grant the counterclaims of the Respondents? (Distilled from Ground 3 and 9 of the Notice of Appeal)
(4) Whether the lower Court could rely on the Appellants’ pleadings and the evidence of the Appellants’ sole witness, PW1, to enter judgment in favour of the Respondents after holding that PW1’s evidence was wholly hearsay? (Distilled from Grounds 4 and 5 of the Notice of Appeal)
(5) Whether the lower Court erred in law and occasioned a miscarriage of justice when it held that there was a binding contract between the 1st Appellant and the 2nd Respondent and that the 1st Appellant could only sue for specific performance? (Distilled from Ground 6 and 7 of the Notice of Appeal)
(6) Whether or not the purported contract between the 1st Appellant and the 3rd Respondent is void for illegality? (Distilled from Ground 8 of the Notice of Appeal)
(7) Whether the trial Court erred in law and occasioned a miscarriage of justice when it discountenanced the cogent, direct, admissible and uncontroverted evidence of PW1 as hearsay and relied on the hearsay, inadmissible evidence of DW1? (Distilled from Grounds 10 and 11 of the Notice of Appeal)
(8) Whether the burden of proving the juristic personality of the 2nd Respondent rests on the Appellants or on the 2nd Respondent and where it rests on the 2nd Respondent, what is the consequence of its failure to discharge this burden? (Distilled from Ground 12 of the Notice of Appeal)
On issue one, it was argued that despite the Appellants’ case at the trial Court with evidence that they never sold the land to the 2nd and 3rd Respondents for N60,000,000 and also, despite the fact they specifically pleaded fraud and forgery alongside documentary exhibits, the trial Court did not grant their reliefs. It was further argued that Exhibit PW10 was a petition written by the 1st Respondent to the Economic and Financial Crimes Commission, commencing investigation into the 2nd and 3rd Respondents’ alleged purchase of the property and indicted the 2nd and 3rd Respondents of fraud and forgery of several documents and which later led to the criminal proceedings at the FCT High Court of Charge No. CR/188/2015.
It was also argued that the trial Court ought to have discountenanced the receipt of payment Exhibit DW1B as the sum contained therein was N60,00,000 as against the N100,000,000 the Appellants pleaded. Reference was also made to the Memorandum of Understanding as the Appellants still held their grounds that it was forged. It was also pointed out that the 2nd and 3rd Respondents who claimed to have transacted with one Anas Musa Sabi who represented the 1st Appellant never called the said man as a witness. The Appellants firmly argued that they had successfully established the claims of forgery and fraud against the Respondents and thus, they were entitled to the grant of the reliefs sought.
It was also argued by the Appellants’ counsel that the trial Court failed woefully in evaluating the evidence before him with regard to fraud and forgery thus resulting in a breach of fair hearing and miscarriage of justice.
On issue two, the Appellants’ counsel argued that the trial Court had relied on the false evidence given by DW1, an officer of the 1st Respondent on whose testimony the 2nd and 3rd Respondents rested their case. It was argued that by Exhibit PW10, the 1st Respondent admitted that it did not acquire any valid title from the 2nd and 3rd Respondents because they never had a genuine legal title and it was an elaborate fraud perpetrated by the 3rd Respondent.
It was submitted that it was clear that the 1st Respondent knew that the documents given to him by the 2nd and 3rd Respondents were forged and that the trial Court was wrong for failing to reject the documents and evidence tendered by the Respondents.
On issue three, the Appellants’ counsel argued that there was no valid or binding contract between the 1st Appellant and the 2nd and 3rd Respondents in respect of the property in dispute. It was then submitted that all that the Respondents showed in evidence to prove their counterclaim was a purported memorandum of understanding, a purported receipt of payment and a purported Power of Attorney which the 1st Appellant has screamed were all forged. The Appellants’ counsel also submitted that by virtue of Section 83 of the Evidence Act 2011, the Respondents failed to call the maker of the documents when tendering them and that they also failed to lay proper foundation in doing so thus amounting to documentary hearsay.
On issue four, it was submitted that the trial Court acted in error when it regarded the evidence of PW1 as hearsay and having no probative value. It was argued that the trial Court had initially relied on the evidence of PW1 and agreed that the 1st Appellant received N16,000,000 as part payment from the 2nd and 3rd Respondents but later regarded the evidence of PW1 as hearsay evidence. It was then submitted that the decision of the trial Court was perverse and occasioned a miscarriage of justice. Reference was made to the case of INEC VS. ABUBAKAR (2009) 8 NWLR (PT. 1143) PAGE 259 AT 290 PARAS F – H.
On issue five, counsel argued that for there to be a valid and binding contract, all the elements of a valid contract must be present. The case of CHABASAYA VS. ANWASI (2010) 10 NWLR (PT. 1201) PAGE 163 AT 179 PARAS G – H was cited in support.
It was submitted that failure to pay the consideration or in this case, the agreed purchase price by a purchaser entitles the seller to treat the contract as repudiated. On this point, counsel cited the case of BIYO VS. AKU (1996) 1 NWLR (PT. 422) 1 AT 39 PARAS B in support.
It was further submitted that the trial Court misdirected itself in finding that despite failure of payment of full consideration the only option open to the 1st Appellant was to sue for specific performance. This Court was then urged to resolve this issue in favour of the Appellants.
On issue six, the learned Appellants’ counsel argued that when a contract is illegal, it is void ab initio. Reliance was placed on the case of OLOWU VS. BUILDING STOCK LIMITED (2018) 1 NWLR (PT. 1601) PAGE 343 AT 394 – 395 PARAS H – A, 440 PARAS H.
It is the argument of the Appellants that Exhibit DW1B shows that the 2nd and 3rd Respondents purportedly paid the sum of N44,000,000 in dollars to the 1st Appellant through Anas Musa Sabi, a director of the 1st Appellant in cash as balance of payment for the property. It was then submitted that by virtue of Section 1 of the Money Laundering (Prohibition) Act 2011, no person or body corporate shall make payment in cash exceeding the sum of N5,000,000 and N10,000,000 except through a financial institution.
It was then argued that the purported contract of sale between the 1st Appellant and the 2nd and 3rd Respondents was illegal and unenforceable in law and the trial Court ought to have declared it as such. On this point, the case of THIRWELL VS. OYEWUNMI (1990) 4 NWLR (PT. 144) PAGE 384 AT 400 PARA E was cited in support.
On issue seven, the learned Appellants’ counsel submitted that hearsay evidence is inadmissible except when same falls within the exceptions provided for under Section 39 of the Evidence Act, 2011. It was then submitted that the testimony of the PW1 was cogent, direct and uncontroverted and that the trial Court was wrong to have held and regarded it as hearsay evidence.
It was also contended that DW1 who testified as the Company Secretary of the 1st Respondent and on whose testimony the 2nd and 3rd Respondents relied on had no business testifying since there was no contract between the 1st Respondent and the 1st Appellant at all, and that the DW1 is not an agent of the 2nd and 3rd Respondents and as such was in no position to testify, and thus, his testimony was hearsay and should have been dismissed by the trial Court.
On issue eight, it was argued that the 2nd Respondent was not a juristic person and thus could not transfer legal title to the 1st Respondent. It was further submitted that the Appellants raised this at the trial Court and the 2nd Respondent did not controvert it. Reference was made to the case of GT INVESTMENT LIMITED VS. WITTBUSH LIMITED (2011) 8 NWLR (PT. 1250) PAGE 500 AT 540 PARA C, where it was held that when there are controversies as to the legal personality of a body corporate, the onus of proving its juristic status lies on the body corporate. It was argued that the 2nd and 3rd Respondents failed to prove same.
This Court was then urged to resolve the issues raised in the appeal and grant the reliefs sought on the face of the Notice of Appeal.
The 1st Respondent on its own part filed its Amended Brief of Argument dated the 20th day of October, 2021 and settled by Alozie Nmerengwa Esq. In the said Amended Brief of Argument, the 8 issues for determination distilled by the Appellants were adopted.
On issue one, the 1st Respondent’s counsel submitted that the evidential burden of proving fraud or forgery in a civil case is proof beyond reasonable doubt and not on the balance of probabilities. Reference was made to the case of MOHAMMED VS. WAMMAKO (2018) 7 NWLR (PT. 1619) 573 AT 591 PARAS B – C.
It was argued that the Appellants never proved the ingredients and elements of the offence of forgery at the trial Court. It was also submitted that the only acceptable witness that can prove the alleged fraud or forgery must be a person who has a personal knowledge of the facts and circumstances of the case and thus, PW1 was not a credible witness as he got all information he testified about from one Anas Musa Sabi who was never called as a witness. It was also argued that the Appellants never called a signature expert to testify that the signature was forged.
With regard to the petition to EFCC, the 1st Respondent’s counsel submitted that the 1st Respondent only did same to ascertain the genuineness of the transaction which was later confirmed to be true.
It was further submitted that the memorandum of understanding clearly showed that the agreed purchase price for the property was N60,000,000 and not N100,000,000 as argued by the Appellants, and that the Respondents rightly relied on the documents they presented to prove their case without any need to call Anas Sabi or Ladan Danjuma as witnesses and that the onus shifted to the Appellants to disprove those documents by calling oral evidence if any which they woefully failed to do, and thus, the Appellants cannot be heard accusing the trial Court of not evaluating evidence that was not brought before it.
On issue two, the 1st Respondent’s counsel submitted that Exhibit PW10 which is the petition to EFCC was dated the 12th of December, 2012 whereas DW1 witness statement on oath was filed on the 20th of July, 2014. It was further argued that it was after the 1st Respondent confirmed the genuineness of the land that it went ahead to file its defence and counterclaim to the suit. It was then submitted that assuming without conceding that the testimony of DW1 was to be discountenanced, the pleadings of the Appellants showed that they had a conclusive transaction with the 1st and 2nd Respondents which is legally binding and enforceable on the face of their admittance of collecting consideration which they even have with them up till this point.
On issues three and five, counsel submitted that the crux of the 1st Appellant’s case was that he sold the land to the 2nd Respondent for the sum of N100,000,000 of which the 2nd Respondent only paid N16,000,000, leaving the unpaid balance of N84, 000,000 and that by this, it is clear that there was a binding contract between the 1st Appellant and the 2nd Respondent and even if the balance was yet to be paid, the 1st Appellant had no right to sell the same plot of land to a third party. The case of MINI LODGE VS. NGEI (2010) 10 WRN PAGE 58 AT PAGE 89 LINES 10 – 11 was relied on.
It was argued that the 1st Appellant ought to have sued the 2nd Respondent and compelled it to pay the outstanding balance instead of going ahead to sell the land to the 2nd Appellant or anyone at all. It was further submitted that where valuable consideration has passed pursuant to a memorandum of understanding, there arises an enforceable right recognized by law. Reference was made to the case of ASUQUO VS. EYO (2014) 5 NWLR (PT. 1400) 247 AT 266 PARAS D – E.
It was also submitted that the argument of the Appellants that Exhibit DW1B i.e. the receipt acknowledging the payment of the balance of N44,000,000, should be discountenanced and cannot hold water because the onus was on the Appellants to call the Anas Musa Sabi whose signature was on the receipt to disprove his signature on the said receipt which they failed to do and the Appellants never called him as witness either even though he attended Court severally representing the 1st Appellant when the matter was ongoing at the trial Court.
Also, it was submitted that the argument of the Appellants that the 2nd Respondent was not a juristic person was unfounded according to 1st Respondent’s counsel because it is a corporate body and any of its servants, officers or agents can testify on its behalf even when the person did not participate in the transaction in issue.
The learned 1st Respondent’s counsel further submitted that Exhibit DW1C which is the power of attorney between the 1st and 2nd Respondents created an agency relationship between the parties to which the 1st Respondent and her officers are duly empowered to testify on behalf of the 2nd Respondent.
On issues four and seven, it was argued that even if the testimony of PW1 may be deemed as hearsay when he is being examined in chief, those elicited during cross-examination remain potent and are deemed the evidence of the cross-examiner and can be relied on by the trial Court.
Furthermore, the 1st Respondent’s counsel submitted that the PW1 was not an agent of the 1st Appellant but a friend of its director Anas Musa Sabi Kamba and that all the facts he testified about were not within his personal knowledge but were what he was told by Anas Musa Sabi. It was submitted that PW1 was a legal practitioner and it was against the Rules of Professional Conduct for a lawyer to act as witness for his clients. It was submitted further that DW1 who is the Company Secretary of the 1st Respondent testified that he was the one that anchored the transaction between the 1st Respondent and 2nd and 3rd Respondents who formally passed to him the relevant documents issued by the 1st Appellant in relation to the plot in issue. And that by donating a power of attorney to the 1st Respondent automatically an agency relationship is created between the 1st and 2nd Respondents empowering officers of the 1st Respondent to act on the 2nd Respondent’s behalf.
One issue six, learned counsel for the 1st Respondent argued that there was nothing on the face of Exhibit DW1B i.e. the receipt, suggesting that money was laundered or payment was made in cash. It was submitted that the beneficiary of the transaction as contained in Exhibit DW1B, is obviously the 1st Appellant who has enjoyed the full benefit of the transaction since the year 2010 and cannot at this point be allowed to deny her legal duties by pleading illegality. Counsel argued that they cannot be heard to be complaining after they have enjoyed the benefits of the so-called legality. On this point, the case of CHIDOKA VS. FIRST CITY FINANCE COMPANY LTD (2013) 5 NWLR (PT. 1346) PAGE 144 AT 163 D – E was cited in support.
On issue eight, the 1st Respondent’s counsel argued that he who alleges must prove because at the trial Court, the legal personality of the 2nd Respondent was never an issue but now on appeal it is. It was submitted that the 1st Appellant had in its initial pleadings said that the 2nd Respondent was a juristic person only to turn around in the further and better statement of claim to say that the 2nd Respondent is “presumed” to be a juristic person which contravenes the provision of Order 15 Rule 8 of the High Court of the FCT Rules.
It was also submitted that the 1st Appellant had consistently admitted in her pleadings that she dealt with the 2nd Respondent as a company and agreed that the 3rd Respondent was a Director of the 2nd Respondent and thus the 1st Appellant cannot be heard to say otherwise.
This Court was urged to uphold the judgment of the trial Court and set aside this appeal.
The 2nd and 3rd Respondents on their own part filed a Brief of Argument on the 1st day of November, 2021 which was settled by their Counsel O. J. Aboje Esq. In the said brief of argument, the following 5 (five) issues for determination were distilled from the Appellants’ notice and ground of appeal thus:
1. Whether the Appellants proved the items of “fraud” and “forgery” pleaded by them and “false evidence” raised in Grounds “1” and “2” of their Notice of Appeal? (Distilled from Grounds 1 and 2 of the Appellants Amended Notice of Appeal)
2. Whether it was merely on Exhibits DW1A, DW1B and DW1C alone that the Court below relied on in entering judgment for the 2nd and 3rd Respondents on their Counter–Claim thus misconstruing the case of the Appellants? (Distilled from Grounds 3, 5, 6, 7 and 9 of the Amended Notice of Appeal of the Appellants)
3. Whether the Court below found in any portion of its judgment that the burden of proving the juristic personality of the 2nd Respondent was an issue between the Appellants and if not, whether the juristic personality of the 2nd Respondent was an issue between the Appellants and the 2nd Respondent? (Distilled from Ground 12 of the Appellants’ Amended Notice of Appeal and Grounds of Appeal)
4. Whether it is open for the Appellants to rely on the question of illegality relative to Section 1 of the Money Laundering Prohibition Act, 2011, to avoid their obligations to the 2nd and 3rd Respondents? (Distilled from Ground 8 of the Amended Notice and Ground of Appeal)
5. As between the evidence of PW1 and that of DW1 which of them amounts to hearsay that may found or not found the claims in the case? (Distilled from Ground 4, 10 and 11 of the Amended Notice of Appeal)
The 2nd and 3rd Respondents also distilled 5 (five) issues for determination from their Respondents’ notice as follows:
1. Whether the reliefs claimed by the Appellants in their further and better Amended Statement of Claim on which the case of the Appellants was determined by the Court below are not moot given the issues joined on pleadings? (Distilled from Ground 1 of the 2nd and 3rd Respondents’ Notice and argued in paragraphs 4.03 and 4.04 of the Brief of Argument)
2. Whether the 2nd, 3rd and 4th Appellants are juristic persons? (Distilled from Ground 2 of the 2nd and 3rd Respondents Notice and argued in paragraph 5.17 of the Brief of Argument)
3. Whether a party is at liberty to plead evidence, issue and arguments? (Distilled from Ground 3 of the 2nd and 3rd Respondents’ Notice and argued in paragraph 4.05 of the Brief of Argument)
4. Whether PW1 (Arinze F. Anakwe (Esq), the sole witness for the Appellants can as a legal practitioner who appeared for the Appellants in the case turn around to also give evidence in the case for the Appellants? (Distilled from Ground 4 of the 2nd and 3rd Respondents Notice and argued from lines 2 of paragraph 8.05 to 8.06 of the Brief of Argument)
5. Whether Exhibit PW1D tendered by the Appellants is not inadmissible by operation of S. 102(b) of the Evidence Act, 2011, as amended? (Distilled from Ground 5 of the 2nd and 3rd Respondents’ Notice and argued in paragraph 4.10 of the Brief of Argument)
On issue one as contained in paragraph 3A of the 2nd – 3rd Respondents Brief of Argument and raised from the Appellants’ Notice and Grounds of Appeal, it was argued in response to the Appellants’ argument in paragraph 4.4 of the Amended Brief, that the Reply and Defence to Counter Claim filed at the trial Court does not have up to 16 paragraphs and that it is not the Reply and Defence to Counter Claim that ought to nominate the issue of “Fraud” and “Forgery” before the Court but the original claim of the Appellants or their amendments as it is the Appellants, as Plaintiffs in the trial Court, that are to nominate the issue for trial. On this point, counsel referred to the case of LONGE VS. FIRST BANK OF NIGERIA PLC (2010) ALL FWLR (PT. 525) P. 258 PP AT 279 PARAS B – C, PAGES 4 – 10 and pages 555 – 560 of the Record of Appeal.
The 2nd and 3rd Respondents’ Counsel further argued that there is no dispute that the land was allocated by the FCT Minister to the Appellants but that the dispute is on whether there was a valid disposal of the land to the 2nd and 3rd Respondents on the one hand by the 1st Appellant was free of fraud, forgery and false evidence or to the 2nd Appellant by the 1st Appellant and thus the Court was therefore right to have dismissed the claims of the Appellants as the claims in the Appellants’ reliefs is a non–starter and was not tailored or raised to capture the issue before the trial Court. On this point, Counsel cited the cases of ANGADI VS. PDP (2019) ALL FWLR (PT. 996) P. 939 AT 974 PARAS D – E and FIDELITY BANK PLC VS. M. TTABORA (2019) ALL FWLR (PT. 975) P. 885 AT 914 PARAS E – F (SC).
The 2nd – 3rd Respondents’ Counsel further submitted that the 1st Appellant cannot pretend to join issues with the 1st Respondent who is not a party to the transaction between the 1st Appellant and the 2nd and 3rd Respondents in respect of their purchase of the land as showcased in paras 4.4(b) – 4.4(e) of their Amended Brief of Argument but ought to plead fraud, forgery and false evidence and give particulars to the Statement of Defence and Counter Claim of the 2nd Respondent and that of the 3rd Respondent. It was further submitted that the Appellant failed to set up by their Amended Reply and Defence to the 2nd Defendant’s Counter – Claim but which they pretended to set up but failed to prove by paras 4(a) – (f) of their reply to the 3rd Respondent’s Statement of Defence and in paragraph 14 of page 633 of the Record of Appeal. It was also argued that evidence was not led to prove the backbone of the particulars of fraud and forgery alleged and particularized by them.
On issue two as contained in paragraph 3A of the 2nd – 3rd Respondents Brief of Argument and raised from the Appellants Notice and Grounds of Appeal, Counsel argued that the cases of the 1st and 2nd Respondents by way of their Counter-Claims in the Court below were not resolved by the Court merely on Exhibits DW1A, Exhibit DW1B and Exhibit DW1C and paragraph 15 of the 2nd Respondent’s Statement of Defence and Counter Claim but on a combination of the case of the Appellants as pleaded by them, the oral evidence of PW1 under cross-examination by the 2nd and 3rd Respondents, the evidence of DW1 and the Exhibits received in evidence tendered by DW1 under reference upon the application of the law. It was also argued that Grounds 6 and 7 of the Amended Notice of Appeal from which the Appellants raised issues 5 are lame together with the argument thereunder.
The 2nd and 3rd Respondents’ Counsel also argued that the 2nd, 3rd and 4th Appellants are not juristic persons as raised by the 3rd Respondent in paragraph 1 of his statement of defence to which the Appellants did not join issues or tender their certificate of incorporation at the trial. On this point, counsel cited the case of DAIRO VS. REGISTERED TRUSTEES, T. A. D. LAGOS (2018) 1 NWLR (PT. 1599) PAGE 62 PP AT 89 PARAS A – B.
On issue three as contained in paragraph 3 of the 2nd – 3rd Respondents Brief of Argument, the 2nd – 3rd Respondents’ Counsel argued that the trial Court did not reach any finding in any portion of its entire judgment that the burden of proving the juristic personality of the 2nd Respondent rest with the Appellants as argued by the Appellants. It was further argued that the law as to where or whom the burden is on to prove the legal personality of a company such as the 2nd Respondent when same is challenged is as stated by the Appellants in the cases cited by them in their Brief of Argument. It was also submitted that the corporate personality of the 2nd Respondent was not called into question by the Appellants at all and assuming the 2nd Respondent is not a juristic person, the sale of the plot to the 3rd Respondent still stands together with the judgment of the trial Court as the 1st Appellant pleaded and admitted that it was the 3rd Respondent that paid the purchase price.
On issue four as raised by the 2nd and 3rd Respondents in paragraph 3 of the 2nd – 3rd Respondents’ Brief of Argument, it was argued that the Appellants particularly the 1st Appellant, having not raised the question of illegality of her receipt of the sum of N44,000,000.00 (Forty-Four Million Naira) only in cash from the 2nd and 3rd Respondents pursuant to Section 1 of the Money Laundering Act 2011, in any of their pleadings and thus this Court should discountenance Ground 8 of the Amended Notice of Appeal and Issue 6 raised. On this point, counsel cited the cases of SAKATI VS. BAKO (2015) ALL FWLR (PT. 800) P. 1182 AT 1209 PARA E – F; ACHU VS. C. S. C., CROSS RIVER STATE (2009) 3 NWLR (PT. 1129) P. 475 PP AT 500 – 501 PARAS G – A and TERIBA VS. ADEYEMO (2010) 11 NWLR (PT. 211) P. 242 PP AT 263 – 264 PARAS F – A.
On issue five as raised in paragraph 3A of the 2nd – 3rd Respondents’ Brief of Argument, it was submitted that it was not the PW1 that tendered the Exhibits DW1A, DW1B and DW1C but DW1, and that Exhibit DW1C is the Power of Attorney between the 1st and 2nd Respondents and not between the 1st Appellant and the 2nd Respondent nor was it alleged to be made by the 1st Appellant and that being the case, the contention of the Appellants that DW1 who tendered same is not the maker of Exhibit DW1C must fail as irrespective of the fact that DW1 gave evidence under cross-examination that he was not present when documents were executed between the 1st Respondent on the one hand and the 2nd and 3rd Respondents, he is a competent witness and his evidence being one from a Company Secretary of the 1st Respondent constitute an exception to the hearsay rule under Section 37 of the Evidence Act, 2011. On this point, counsel cited the case of CHEMIRON VS. STANBILINI VISION LTD (2018) 17 NWLR (PT. 1647) P. 62 PP AT 77 – 78 PARAS H – C.
The learned 2nd and 3rd Respondents’ Counsel argued further that if the Court rejects Exhibits DW1A and DW1B as urged by the Appellants what happens to Exhibits 9 and 10 which are also Exhibits DW1A and DW1B disclosed in Exhibit PW1J tendered and relied upon by the very same Appellants at the trial Court which they have not urged this Court to discountenance and expunge/reject? It was submitted also that the evidence of PW1 is wholly hearsay evidence as determined by the Court below as against the evidence of DW1.
The 2nd and 3rd Respondents’ Counsel contended that the Appellants did not appeal the findings of the trial Court wherein the Court below decided that the 2nd and 3rd Respondents can rely on the evidence of the Appellants as they did and those of the 1st Respondent in proof of their counterclaim and that the Appellants having not so appealed, cannot now argue as to the fact that the 2nd and 3rd Respondents failed to call evidence or that they relied on hearsay evidence. On this point, counsel cited the case of EXXON MOBIL CORP VS. ARCHIANGA (2018) 14 NWLR (PT. 1639) P. 229 PP AT 251 PARA H.
The 2nd and 3rd Respondents’ Counsel argued that the contentions and admissibility of Exhibits DW1A – DW1C and the evidence of DW1 is not supported by any Ground of Appeal and thus arguments in that regard should be considered by this Court as misplaced and as such be discountenanced. On this point, the case of LAMBU VS. ISYAKAU (2012) ALL FWLR (PT. 640) P. 1292 PP AT 1324 – 1325 PARAS A – E was cited in support. It was further argued that assuming that the evidence is outrightly inadmissible as contended by the Appellants, the judgment of the trial Court would still be sound and unimpeachable because it was founded on the Appellants’ own admission on the pleadings that the disputed property has been sold to the 2nd and 3rd Respondents as found by the trial Court.
The 2nd and 3rd Respondents also argued that by way of a preliminary objection, the entire appeal of the Appellants is incompetent for abuse of processes and proceedings of the Court and for an incompetent Amended Notice of Appeal as there is no Judge of the FCT High Court known as Mohammed J that delivered the decision appealed against as contained in the original Notice of Appeal and on the Amended Notice of Appeal.
It was argued that the Appellants’ appeal which sought to set aside the decision of the Court below is a non-starter for having been initiated at the same time with a motion before the Court below which seeks to set aside the decision of the Court below and that the motion was determined without an appeal.
In conclusion, the 2nd and 3rd Respondents’ counsel urged this Court to in view of all his arguments, dismiss this appeal.
The Appellants then filed their Reply Brief of Argument to the 1st Respondent’s amended brief of argument and dated the 30th day of November, 2021 which was settled by Olayinka L. Arasi Esq.
In response to the arguments of the 1st Respondent that the proof of forgery and fraud must be beyond reasonable doubt, the Appellants’ counsel argued that the 1st Respondent’s counsel had failed to respond to their own argument that the trial Court failed to take into cognizance that the non-evaluation of the evidence led by them to prove fraud and forgery amounted to a breach of the Appellants’ fair hearing and thus, it is deemed admitted as facts not disputed are deemed admitted. The case of MEKWUNYE VS. IMOUKHUEDE (2019) 13 NWLR (PT. 1690) PAGE 439 @ 505 PARAS A – C was cited in support.
It was submitted that from the documents and evidence contained in the Record of appeal, it is evident that the Appellants satisfied all the ingredients of proving fraud and forgery by tendering Exhibit PW1P, PW1Q, PW1R, PW1S and PW1O and were not considered at all by the trial Court. It was also argued that the Appellants did not need to engage the services of a signature expert when the forgery and fraud is inherent on the face of the documents tendered by the Respondents.
It was also argued that the evidence of PW1 cannot be regarded as hearsay because he was acting as an agent of the 1st Appellant and he was privy to the information about the property even if he was not in the employment of the company when the transaction occurred. Reference was made to the case of BRILLA ENERGY LIMITED VS. FRN (2018) 16 NWLR (PT. 1645) PAGE 305 AT 337 PARAS G – H.
Reference was again made to the petition written by the 1st Respondent to EFCC with regard to the sale of the property to him by the 2nd Respondent.
On issue two, it was submitted that there is nothing before this Court showing that Exhibit PW10, the EFCC petition was ever withdrawn by the 1st Respondent. It was argued further that the Appellants have remained consistent in their case.
On issues three and five, the Appellants’ counsel argued that the anthology of evidence relied on by the trial Court cannot be relied upon as evidence of transfer of interest in land or as proof of existence of a binding contract. It was contended that the submission of the 1st Respondent in this regard was very misleading as it cannot be the law that immediately an intending buyer pays a certain amount into the account of the seller, it creates a binding contract immediately in the absence of a binding and admissible agreement to that effect as payment of money into a bank account can never in itself constitute a binding contract between a buyer and a seller.
It was submitted that there was never an agreement as to consideration, as it can be seen that while the Appellants insisted they were selling the land for N100,000,000, the 2nd Respondent claimed they agreed to pay the sum of N60,000,000 and thus the case of MINI LODGE (SUPRA) cannot avail the 1st Respondent. It was argued also, that even after part payment has been made in a contract of sale of land, failure to pay the balance entitles the vendor to rescind the contract and sell to another person.
The learned Appellants’ counsel submitted further that the argument of the 1st Respondent that any servant, officer or agent of a company can testify on behalf of a company even when the person did not participate in the transaction in issue cannot avail it in this situation because DW1 was neither the maker of the exhibits on record nor a party to the transaction leading up to the alleged making of the exhibits and thus DW1 has no knowledge of the content of the document or even the transaction and DW1 has never been an agent or servant of the 2nd Respondent.
On issue six, it was submitted that it was quite odd that the 2nd and 3rd Respondents admitted to being in possession of the account details of the 1st Appellant and then paid the balance of the purchase price in cash instead of paying to the account details provided for that purpose, ostensibly for the purpose of perpetrating illegality because no such payment was ever made and the person who purportedly made the payment denied on oath (Exhibit PW1N) that he made such payment and that such transaction never transpired.
On issues four and seven, the Appellants’ counsel submitted that the Court cannot discountenance the examination in chief of PW1 and then turn around to rely on his cross-examination. It was argued that it is not the place of the 1st Respondent to complain about the 1st Appellant’s appointment of PW1 as its agent as it is only the 2nd Appellant who can make such a complaint.
Also, the learned counsel for the Appellants argued on the issue of the breach of Rules of Professional Conduct, that it is a new issue that neither arose from the judgment of the trial Court nor is it contained in the Appellants’ grounds of appeal. This Court was urged to discountenance all arguments in this regard as in fact, it is the Legal Practitioners Disciplinary Committee (LPDC) that can entertain such complaints. And even if it is a breach of the Rules of Professional Conduct, it cannot affect the admissibility of the evidence given by PW1.
On issue eight, it was submitted that it is settled law that when a Respondent fails to react to a point of law contained in an Appellant’s brief, the Respondent is deemed to have conceded the issues/points raised therein. Reference was made to the case of SHEKETE VS. NAF (2007) 14 NWLR (PT. 1053) PAGE 159 AT 208 PARAS B – F.
It was re-emphasized that if the 2nd Respondent lacked the juristic personality to acquire any property, it also lacked the capacity to transfer same to the 1st Respondent and thus, it cannot be said the 1st Appellant transferred any title in the property to the 2nd Respondent. It was submitted that it was inconsequential whether the 1st Appellant had hitherto pleaded that the 2nd Respondent was a registered company or presumed to be a registered company as what was relevant is whether the juristic personality of the 2nd Respondent was put in issue at trial and whether the 2nd Respondent discharged the onus placed on it by law.
The Appellants also filed a Reply Brief of Arguments in response to the arguments contained in the 2nd and 3rd Respondents’ brief of argument and same was deemed on the 2nd day of December, 2021.
On issue one, it was submitted in response to the argument that the Appellants failed to call Anas Musa Sabi as a witness to testify about his signature that it is trite law that a party is not obligated to call all witnesses contained on its witness list. The case of AGIH VS. LE EJINKEONYE BROS LIMITED (1992) 3 NWLR (PT. 228) PAGE 200 AT 211 – 212 PARAS H-A was cited in support.
It was further submitted that the testimony and evidence of PW1 cannot be regarded as hearsay because PW1 acted as an agent of the 1st Appellant and by virtue of his position was privy to information related to the property.
The Appellants’ counsel also argued that the payment of N16,000,000 cannot amount to payment of part of the purchase sum as there was no agreement to that effect and assuming there was an agreement, the default in paying the balance gave the vendor the right to rescind the contract and sell to another person. Reference was made to the case of ODUSOGA VS. RICKETTS (1997) 7 NWLR (PT. 511) PAGE 1 AT 16 PARAS H.
On the argument that giving false evidence was not pleaded by the Appellants, it was submitted that same could not have been pleaded because it arose during trial and the Appellants sought and obtained leave of this Court to argue it as a fresh issue on appeal as it was not addressed by the trial Court.
On issue two, the Appellants reiterated that the 1st Appellant never admitted that it sold the property to the 2nd or 3rd Respondents. That the Appellants’ position on what transpired between both parties can be found at pages 556 – 558 of the Record of Appeal.
Also, with regard to the argument of the juristic status of the 2nd – 4th Appellants, it was argued that it was the Respondents that applied for the joinder of the 2nd – 4th Appellants to the proceedings before the trial Court hence it is pointless responding to their argument on this issue.
The Appellants’ counsel also submitted that they sufficiently proved the allegations of fraud and forgery against the 2nd and 3rd Respondents at the trial Court by leading credible evidence.
On issue three, it was submitted that the arguments of the 2nd and 3rd Respondents with regard to the juristic status of the 2nd Respondent did not arise from the Appellants’ grounds of appeal and thus same should be discountenanced by this Court. It was further submitted that it is not a requirement of the law that issues must be joined by a party whose juristic personality is challenged for such party to prove its challenged juristic personality. What is expected of the person is to simply prove their juristic status by providing their certificate of incorporation which the 2nd Respondent never did. The case of SOCIO POLITICAL RESEARCH DEV. VS. MINISTER OF FCT (2019) 1 NWLR (PT. 1653) PAGE 313 AT 346 PARAS G – H was cited in support.
On issue four, the Appellants’ counsel submitted that they sought and obtained the leave of this Court on the 30th day of September, 2021 to raise and argue the fresh issue of the illegality of the contract (the payment of the N44,000,000 in cash). It was further submitted that the Appellants have consistently maintained that the only sum of money paid by the Respondents to it was the sum of N16,000,000 and thus, it cannot be said that they enjoyed the benefits of the illegality.
On issue five, the Appellants argued that the trial Court erred in law when it discountenanced the direct, cogent and uncontroverted evidence of PW1 and relied on the hearsay and inadmissible evidence of DW1 and thus occasioned a miscarriage of justice on the Appellants.
The learned Appellants’ counsel submitted further that there was no authority to support the claim that a party’s testimony would be hearsay because such a party also appeared as counsel in a case and that all the cases cited by the 2nd and 3rd Respondents has no relevance to the case. It was submitted that PW1 had already testified and the Appellants had closed their case before his singular appearance as counsel.
It was submitted further that contrary to the Respondents’ false and misleading arguments, PW1 testified as an agent/servant of the 1st Appellant. In conclusion, it was contended that the lower Court occasioned a miscarriage of justice on the Appellants when it discountenanced the direct, cogent and uncontroverted evidence of PW1 but relied on the inadmissible evidence of DW1.
This Court was then urged to grant this appeal and set aside the judgment of the trial Court.
RESOLUTION OF THE ISSUES
I have read thoroughly and digested the very lengthy but brilliant submissions of counsel to the Appellants, 1st Respondent and the 2nd and 3rd Respondents respectively and have summarized same. I will now go ahead and dig deep into the nitty-gritty of the entire appeal. There are a lot of contentions and each party obviously believes in the truth of their argument. I shall adopt the issues for determination of this appeal as distilled by the Appellants so that I do not leave any stone unturned in his grouse. The said issues for determination are reproduced hereunder as follows:
1. Whether the trial Court was right when it dismissed the Appellants’ case and granted the Respondents’ counter-claims despite the unchallenged evidence of fraud and forgery adduced by the Appellants?
2. Whether the trial Court was right to have relied on false evidence given by the 1st Respondent and by extension the 2nd and 3rd Respondents?
3. Whether the lower Court was right to have relied on Exhibits DW1A-C to grant the counterclaims of the Respondents?
4. Whether the lower Court could rely on the Appellants’ pleadings and the evidence of the Appellants’ sole witness, PW1, to enter judgment in favour of the Respondents after holding that PW1’s evidence was wholly hearsay?
5. Whether the lower Court erred in law and occasioned a miscarriage of justice when it held that there was a binding contract between the 1st Appellant and the 2nd Respondent and that the 1st Appellant could only sue for specific performance?
6. Whether or not the purported contract between the 1st Appellant and the 3rd Respondent is void for illegality?
7. Whether the trial Court erred in law and occasioned a miscarriage of justice when it discountenanced the cogent, direct, admissible and uncontroverted evidence of PW1 as hearsay and relied on the hearsay, inadmissible evidence of DW1?
8. Whether the burden of proving the juristic personality of the 2nd Respondent rests on the Appellants or on the 2nd Respondent and where it rests on the 2nd Respondent what is the consequence of its failure to discharge this burden?
ISSUES ONE AND TWO
The law is well settled that even though it is true that in civil proceedings, the preponderance of probability may constitute a solid and sufficient ground for a verdict, this is however subject to the provisions of Section 137 of the Evidence Act 2011, to the effect that if there is a commission of crime by a person in a civil proceeding and it is directly in issue in that proceeding, it must be proved beyond reasonable doubt. The standard of proof is no longer on a balance of probabilities but on proof beyond reasonable doubt. See the cases of OKWUARUME VS. OBABOKOR (1966) NMLR 47 and BENSON IKOKU VS ENOCH OLI (1962) ALL NLR 194.
The burden of proving that a party is guilty of a crime in a civil proceeding is subject to Section 139 of the Evidence Act, and it is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See the case of EDOKPOLOR & CO LTD VS. OHENHEN (1994) 7 NWLR (PT. 358) PAGE 511. In the instant appeal, forgery is a criminal offence and the Appellants are saddled greatly to prove same beyond reasonable doubt.
To determine this particular issue, the questions that must be asked and sufficiently answered are: what are the ingredients of fraud and forgery? Did the Appellants satisfactorily prove beyond reasonable doubt the allegation of fraud and forgery against the 2nd and 3rd Respondents?
In the case of N. B. A. VS. UBURU (2019) 6 NWLR (PT. 1668) PAGE 378 AT 385, forgery was defined as an act of fraudulently making a false document or altering a real document to be used as if genuine. Forgery was further defined as the noun form of the verb “forge” and to forge means to make a copy or an imitation of something in order to deceive people. It also means to fabricate by false imitation.
It was the Appellants’ case at the trial Court that the 2nd and 3rd Respondents forged the signature of one Anas Musa Sabi Kamba, a director of the 1st Appellant and the forged signature was appended to Exhibit DW1B an acknowledgement receipt of the payment of N44,000,000 to the 1st Appellant by the 2nd and 3rd Respondents, Exhibit DW1A a Memorandum of Understanding and Exhibit DW1C an Irrevocable Power of Attorney.
The Appellants herein have re-stated the evidence they proffered and relied on at the trial Court to prove the elements of fraud and forgery in paragraph 4.4 of their Amended Brief of Argument. The Appellants stated and laid down 8 evidence that they had led at the trial Court to prove the allegation of fraud and forgery. I shall look at the said evidence.
Firstly, I must cite the Supreme Court case of OBIOMA VS. STATE (2020) 3 NWLR (PT. 1710) PAGE 45 AT 62 PARAS G – H, where it was held per Kekere-Ekun, JSC that the essentials of forgery are:
“1. That there is a document or writing;
2. That the document or writing is forged;
3. That the accused person(s) forged the document(s) or writing in question;
4. That he intended the forged document or writing to be acted upon to the prejudice of the victim in the belief that it is genuine.”
Let us now see if the Appellants sufficiently prove the ingredients of fraud and forgery against the 2nd and 3rd Respondents as stated in the aforementioned case.
The first evidence the Appellants have made boast of using to prove the fraud and forgery is that one Mr. Ladan Danjuma who purportedly paid the sum of N44,000,000 to the 1st Appellant on behalf of the 2nd and 3rd Respondents had denied on oath that he ever paid such an amount. The denial was admitted and marked as Exhibit PW1N which is an affidavit in support of a Motion filed before an Upper Area Court at Gudu, Abuja in a separate criminal case filed by Anas Musa Sabi, a Director of the 1st Appellant. I have painstakingly looked for and found the said Exhibit PW1N and I shall reproduce hereunder, some of the depositions contained therein:
“(2c) That I have testified before this Court that I have witnessed money exchanging hands between the accused and some other persons as testified in page 51 of the CTC which is hereby attached to this affidavit is not correct.
(2d). That there was nothing of such (sic) ever transpired truly to my knowledge.
(3). That on that faithful day, I was seriously sick.
(4). That most of my activities on that day was done unconsciously.
(5). That I only come to the Court for fear of disobeying the Court.
(6). That my entire testimony in this matter be disregarded by this Honourable Court.”
I have read through the said depositions and I wonder why anyone, particularly a person saddled with the heavy task of proving a crime against another beyond reasonable doubt, would consider these depositions credible and reasonable enough to secure a conviction against the person aimed at. The depositions are clearly unreliable, baseless, contain no facts, clearly ambiguous and irrelevant. The deponent even said he was sick on the said day and performed all his activities unconsciously and only comes to Court out of fear. The deponent even went further to state that all his testimony, his entire testimony should be disregarded by the Upper Area Court. Why the Appellants deem this fit to suffice as credible evidence enough to nail the 2nd and 3rd Respondents for forgery, I will never know.
If the Appellants were so sure of the depositions therein, why did they not go ahead and find the said Ladan Danjuma and call him as a witness, a vital witness whose testimony would have established some level of hard truths against the 2nd and 3rd Respondents?
Even though it is trite that the law cannot force a party to call a certain person as a witness in proof of his case, it is dangerous and fatal for a party to omit vital witnesses that can help in proof of his case against another.
In the case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) PAGE 663 AT 696 PARAS A – B, it was held:
“A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”
In the case of STATE VS. NNOLIM & ANOR (1994) LPELR – 3222 (SC), it was held per Adio, JSC that:
“The question is: who is a vital witness? A vital witness is a witness whose evidence may determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.”
As far as I am concerned, Mr. Ladan Danjuma would have been a vital witness for the Appellants’ case at the trial Court to prove that the payment of N44,000,000 by the 2nd and 3rd Respondents to the 1st Appellant never happened, thus the purported signed Memorandum of Understanding, Power of Attorney and acknowledgement receipt by Anas Musa Sabi, a Director of the 1st Appellant would have been sufficiently proved to be forged.
In respect of evidence two to seven, the Appellants had clearly missed the point. All that was required of them to prove was that they never received the payment of N44,000,000 from the 2nd and 3rd Respondents and thus, Exhibit DW1A, Exhibit DW1B and Exhibit DW1C were forged as the 1st Appellant’s Director, Anas Musa Sabi never signed those documents. All these flogging dead horses and attacking the credibility and reputation of the 3rd Respondent by making reference to the petitions written by the 1st Respondent to EFCC against the 2nd and 3rd Respondents does not prove any of the ingredients of forgery. The Appellants had made reference to the wordings used by the 1st Respondent in Exhibit P10 which is the petition written by the 1st Respondent to EFCC to describe her transaction with the 2nd and 3rd Respondents. The 1st Respondent through its witness DW1 had described the transaction as an “elaborate fraud.”
The 1st Respondent’s counsel has however explained in their amended brief of argument that he filed the petitions against the 2nd and 3rd Respondents at EFCC because she needed to clarify the genuineness of the transaction and she was able to discover that the transaction was genuine. Thus these evidence did not prove the fraud.
Lastly, the eighth evidence proffered by the Appellants as what they relied on to prove the allegation of forgery was that the Respondents failed to call Anas Musa Sabi and Ladan Danjuma as witnesses. This is surprising because the said Anas Musa Sabi is a Director of the 1st Appellant and he is the one being “accused” of collecting the sum of N44,000,000 from the 2nd and 3rd Respondents and it is him whose signature is alleged to have been forged.
In the Supreme Court case of EKWUREKWU VS. STATE (2020) 4 NWLR (PT. 1713) PAGE 114 AT 133 PARAS B, it was held per Eko, JSC that:
“The signature of a person on the document is prima facie evidence of the fact that he is the author of the said document.”
See also the case of YADIS NIG. LTD VS. GREAT NIGERIA INSURANCE CO LTD (2000) LPELR – 10365 (CA).
The signature of Anas Musa Sabi seen on Exhibit DW1A, DW1B and DW1C gives the presumption that he made the documents or consented to the truth of the contents of the documents.
Even though, it is the law that the person whose signature is deemed to have been forged need not be called as a witness to prove whether or not the signature belongs to him, he must be called as a witness if the truth of the content of the document is to be established.
In the Supreme Court case of OBIOMA VS. STATE (2020) 3 NWLR (PT. 1710) PAGE 45 AT 62 PARAS G – H it was held per Eko, JSC that:
“… the appellant has made so much fuss on the inability of the prosecution to call Dr. Iboko whose signature was allegedly forged. The Appellant therefore contends that the failure to call Dr. Iboko was fatal to the prosecution’s case. The essence of calling Dr. Iboko is that through his evidence, it will be established that his signature was in fact forged. It is for the proof or otherwise that the disputed signature was forged. The purpose can be served by any other evidence establishing that fact. That is, if without calling Dr. Iboko the prosecution discharges the onus of proving that his signature was forged, then it would be no further need to call him to testify that his signature was forged. The dicta in WAMBAI V KANO N.A (1965) NMLR 15 and ALAKE V THE STATE (1992) 9 NWLR PART 265 PAGE 260 supports this proposition… the fact that Dr. Iboko who made exhibit 10 did not testify as a witness does not ipso facto render exhibit 10 inadmissible in evidence. It is admissible in evidence as a real evidence and for the fact that it was indeed made, in the historical sense. If it is, however, proposed to establish the truth of the contents of the statement; in that circumstance, the statement becomes inadmissible hearsay. AZEEZ OKORO V THE STATE (1998) 14 NWLR PART 584 PAGE 181 SC AT PP 218-219.”
I am taken aback at the submission of the Appellants’ counsel that the Respondents ought to have called Anas Musa Sabi and Ladan Danjuma as witnesses because the burden of proving this case lies on the Appellants and they are expected to win on the strength of their case and not on the weakness of the other party’s case as the onus is on them to prove beyond reasonable doubt. It is trite law that a party seeking for declaration of title to land must win on the strength of his own and not on the weakness of the other party’s defence. See the case of ORLU VS. GOGO-ABITE (2010) 1 S. C. PART 11 PAGE 56 AT 68 – 69.
As earlier stated, the vital witnesses for the case of the Appellants and which would have solidly helped in proving the ingredients of forgery against the 2nd and 3rd Respondents would be Anas Musa Sabi and Ladan Danjuma and the Appellants failed to do so. I have gone through the record of proceedings contained in the Record of Appeal and I can see that Anas Musa Sabi even attended Court proceedings, representing the 1st Appellant. Why the Appellants decided to shield him away from testifying for them and protect him from the possible fire of cross-examination by the Respondents’ counsel I would never know.
On whether or not the trial Court properly evaluated the evidence before it as argued by the Appellants’ counsel, I am of the firm belief that the learned trial Judge properly evaluated the evidence before him with regard to the proof of the allegation of forgery when he held that the Appellants failed to prove it.
In the case of OZUZU VS. EMEWU (2019) 13 NWLR (PT. 1688) PAGE 143 AT 159 PARAS A – C, it was held per Nweze, JSC that:
“It is settled that an appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated. He has to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of wrong evaluation.”
Although the Appellants specifically particularized the evidence they felt was wrongly evaluated, they failed to convincingly show how the evidence was worthy of a better evaluation than what the learned trial Judge did to give a different and favourable conclusion for them. See the case of DAKUR VS. DAPAL (1998) 10 NWLR (PT. 571) PAGE 573.
Issues one and two are hereby resolved against the Appellants.
ISSUES THREE AND FIVE
The Appellants have argued vehemently that there was no valid or concluded binding contract between the 1st Appellant and the 2nd and 3rd Respondents in respect of the property in dispute. The Appellants have continued to deny ever making Exhibits DW1A, DW1B and DW1C and had pleaded particulars of forgery. I have earlier held while determining issues one and two that the Appellants have failed woefully in proving the ingredients of the offence of forgery against the 2nd and 3rd Respondents.
Having concluded that, I will now proceed to determine the other arguments set forth. The Appellants have argued that DW1A (the Memorandum of Understanding) merely signaled the willingness of the parties to enter into and move forward with a contract and it does not in itself qualify as a binding contract or instrument of transfer or title in the land to the 2nd and 3rd Respondents. The Appellants’ counsel has argued that Exhibit DW1A is not a conclusive or binding contract but it is only intended to guide the intentions of both parties as it relates to the transaction. It was also argued that it was not a registrable instrument.
The Appellants has also argued that the Power of Attorney cannot transfer title of land to another and Exhibit DW1C which is the acknowledgement receipt of the payment of N44,000,000 by the 2nd and 3rd Respondents to the 1st Appellant. As earlier held, Exhibits DW1A, DW1B and DW1C have not been sufficiently proved as forged so this Court deems them all as original, I will then go ahead to evaluate the arguments.
In the Supreme Court case of MALAMI VS. OHIKHUARE (2019) 7 NWLR (PT. 1670) PAGE 132 AT 157 PARA E, it was held per Aka’ahs JSC that:
“An irrevocable power of attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee.”
The Supreme Court in the case of ISITOR VS. FAKARODE (2018) 10 NWLR (PT. 1628) PAGE 416 AT 423 PARA E, held per Aka’ahs, JSC that:
“The sale receipt tendered by the respondent entitles her to an equitable ownership of the disputed land.”
The Supreme Court, in the case of ETAJATA VS. OLOGBO (2007) 16 NWLR (PT. 1061) PAGE 554 AT 592 PARAS C – F held per Muhammad, JSC that:
“A receipt generally is that document or a piece of paper which signifies that goods or services have been paid for. It is evidence of payment and must be a document whereby the receipt or deposit or payment of money is acknowledged or expressed. To constitute a receipt of anything, there must be a person to receive and a person from whom he receives and something received by the former from the latter and that something must be a sum of money.”
Also, the Supreme Court held in the case of BENJAMIN VS. KALIO (2018) 15 NWLR (PT. 1641) PAGE 38 AT 53 PARAS D – H, per Eko, JSC that:
“It is not an immutable rule that proof of transactions shall be by production of receipts as evidence of payment of the purchase price.”
I am of the firm belief that Exhibits DW1A, DW1B and DW1C showed that parties clearly intended to enter a contract of sale and to be bound by it. Whether they constitute legal registrable instruments or not is not the issue in this instant appeal.
Was there a contract of sale of land between the 1st Appellant and the 2nd and 3rd Respondents? Upon the tendering, admitting and leading evidence in respect of Exhibits DW1A, DW1B and DW1C, was the 1st Appellant still the owner of the property in issue and did he have the power to re-sell? My answers to these questions are straightforward.
Going by the wordings of the Memorandum of Understanding and the Power of Attorney and even the payment of the agreed consideration, it is clear that there was a valid binding contract of sale of land between the 1st Appellant and the 2nd and 3rd Respondents.
Issues three and five are therefore resolved against the Appellants.
ISSUES FOUR AND SEVEN
What is hearsay evidence? In the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held that hearsay evidence is evidence that does not derive its value solely from the credit given to the witness himself but which rests also, in part, on the veracity and competence of some other person.
In the instant case, the Appellants have called PW1 to testify on their behalf in proof of their case. PW1 tendered documents that were admitted in evidence and he made it clear on page 712 of the Record of Appeal as follows:
“it is true that I am a counsel in the law firm that represents the Plaintiff in this matter. It is not completely true that my law firm was briefed. I never knew anything about the facts concerning this suit. The complete truth is as stated in my witness statement on oath which I adopted before the Court. What I will say is that I am a friend to Anas Musa Sabi Kamba, the Director of the 1st Plaintiff. That was how I first became aware of the facts of the case before our firm was properly briefed to handle it. all I stated in my witness statement on oath was based on the information I derived from the client. That client is Anas Musa Sabi Kamba, a director of the 1st Plaintiff.”
Going by this testimony, I am surprised the Appellants’ counsel is making heavy weather of the fact that the testimony of PW1 was referred to as hearsay evidence. PW1 clearly stated that everything he knew about this case were from information given to him by Anas Musa Sabi. No other witness was called to at least corroborate his testimony.
With regard to the issue raised and argued in paragraph 4.54 of the Appellants’ brief of argument, the Appellants have argued that the trial Court had no right to pick which part of the Appellants’ story to believe and apply same to suit what the Court wanted to achieve.
I do not see a correlation between this issue and the case of RILWAN PARTNERS VS. SKYE BANK PLC (2015) 1 NWLR (PT. 1441) PAGE 437 AT 461 PARA E cited by the Appellants.
In the case of DANLADI VS. STATE (2019) 16 NWLR (PT. 1698) PAGE 342 AT 391, it was held that:
“By virtue of Section 37 and 38 of Evidence Act, hearsay evidence is inadmissible in law regarding proving the truth of a fact.”
From the above case, hearsay evidence is only inadmissible with regard to proving the truth of a fact. It does not mean the entire evidence is rotten and must be disposed of.
PW1 informed the Court that he was told by Anas Musa Sabi that the latter never collected the sum of N44,000,000 and that he did not sign Exhibits DW1A, DW1B and DW1C.
The arguments of the Respondents are that there exists Exhibits DW1A, DW1B and DW1C and they asserted that they were signed by Anas Musa Sabi upon the receipt of the N44,000,000. These exhibits are before the Court and supported by the pleadings of the Respondents.
In the Supreme Court case of ADEOSUN VS. GOVERNOR, EKITI STATE (2012) 4 NWLR (PT. 1289) 581 AT 602 A – B, it was held per Onnoghen, JSC:
“… it is settled law that evidence elicited from the cross-examination of a defence witness, which is In line with the facts pleaded by the plaintiff, forms part of the evidence produced by the plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties.”
Thus, the fact that the evidence of PW1 was regarded as hearsay because it did not establish the truth of what PW1 was trying to prove does not make it useless to be relied on by the Respondents.
In the Supreme Court case of UMAR VS. GEIDAM (2019) 1 NWLR (PT. 1652) PAGE 29 AT 49 PARAS A – B, it was held per Augie JSC:
“It is well settled that when evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent can take advantage of that evidence to strengthen his case, as long as it is consistent with, and corroborates his case.”
The trial Court was right in relying on Exhibits DW1A, DW1B and DW1C since the Respondents’ case corroborate their existence and the Appellants failed to prove that they were forged.
Also, I am of the firm belief that PW1 is not an agent of the 1st Appellant as argued by the Appellants in paragraph 4.85. During his cross-examination, PW1 clearly stated as follows:
“It is true that I am a counsel in the law firm that represents the Plaintiff in this matter. It is not completely true that my law firm was briefed. I never knew anything about the facts concerning this suit. The complete truth is as stated in my witness statement on oath which I adopted before the Court. What I will say is that I am a friend to Anas Musa Sabi Kamba, the Director of the 1st Plaintiff.”
PW1 clearly explained who he was during his testimony, leaving no thread of doubt as to whether he was an agent of the 1st Appellant. PW1 was a lawyer in the firm handling the case at the trial Court and also a friend of Anas Musa Sabi, a Director of the 1st Appellant. The Appellants cannot be heard stating otherwise.
It is elementary law that no matter how brilliant the submission of counsel is, it cannot take the place of evidence. See the case of AJAYI VS. TOTAL (NIG) PLC (2014) ALL FWLR (PT. 719) PAGE 1060.
In the case of FBN PLC VS. AKPARABONG COMMUNITY BANK LTD & ANOR (2005) LPELR – 7496, it was held that:
“…The submissions of counsel cannot be a substitute for evidence.”
Also, in the Supreme Court case of CHUKWUJEKWU VS. OLALERE & ANOR (1992) 2 NWLR (PT. 221) PAGE 86, it was held that:
“it is now trite law that no matter how brilliant and persuasive counsel’s submission may be, it can never metamorphose to evidence.”
The Appellants’ counsel has also argued that DW1, who was the Company Secretary of the 1st Respondent, had been called as witness and made to testify on behalf of the 1st Respondent. Counsel has further argued that the 2nd and 3rd Respondents had called no witnesses and relied solely and only on the testimony of DW1, and that since DW1 was not a party to the transaction, his testimony amounted to hearsay evidence and all the documents tendered by him (Exhibits DW1A, DW1B, DW1C) are caught by the same rule of hearsay.
I will not want to drag this issue further because it is clear that the Appellants’ counsel is a bit confused as to how pleadings and evidence work under our civil jurisprudence.
In the Supreme Court case of MTN VS. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC) it was held per Kelere-Ekun, JSC that:
“On the issue of evidence elicited from a witness under cross-examination, I do not agree with learned senior counsel for the appellant that because the evidence in Chief of DW1 was found to be of no moment, having been hoisted upon an incompetent statement of defence, the cross-examination of the witness should also be jettisoned. The purpose of evidence in chief is to lead evidence in support of a party’s pleadings. The purpose of cross-examination is to discredit the witness of one’s opponent and make his testimony unworthy of belief. Cross-examination of a witness may also enhance the case of the party cross-examining by affirming or supporting his position.”
His Lordship Onnoghen, JSC gave an enlightening explanation on the effect of evidence elicited under cross-examination in the case of AKOMOLAFE VS. GUARDIAN PRESS LTD (2010) 3 NWLR (PT. 1181) 338 AT 351 F – H, where he held that:
“On the issue as to whether both parties called evidence in support of their pleadings, as held by the lower Court, it is settled law that evidence elicited from a party or his witness(es) under cross-examination, which goes to support the case of the party cross-examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence. In such a case, you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross-examination which are in support of his case or defence constitute his evidence in the case. There is however a catch to this principle. The exception is that evidence so elicited under cross-examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.”
The questions that must be asked and answered here are as follows:
(a) Are the evidence elicited from the testimony and cross-examination of DW1 supported by the pleadings filed by the 2nd and 3rd Respondents?
(b) Are the evidence elicited relevant to the case of the 2nd and 3rd Respondents?
I answer both questions in the affirmative while relying strongly on the above cited cases.
Issues four and seven are accordingly resolved against the Appellants.
ISSUES SIX AND EIGHT
It is surprising that the Appellants, in this instance, raised this issue at all after denying vehemently that they never ever received the payment of such money at all. It is even more alarming that after they went ahead to accuse the 2nd and 3rd Respondents of forging the documents indicating the payment of the sum of N44,000,000, they are now arguing that since the mode of payment was illegal, the entire transaction should be void ab initio.
This is a fresh issue of which leave has been adequately sought and obtained. The Appellants have argued that based on the provisions of Section 1 of the Money Laundering Prohibition Act 2011 which provides that:
“No person or body corporate shall except in a transaction through a financial institution, make or accept cash payment of a sum exceeding;
(a) N5,000,000 or its equivalent, in the case of an individual; or
(b) N10,000,000 or its equivalent in the case of a body corporate.”
Thus, it has been argued that the purported contract of sale between the 1st Appellant and the 2nd and 3rd Respondents is therefore illegal and unenforceable in law as the alleged method of payment constituted a crime. Looking closely at this issue, to my mind, it is a subtle admission by the 1st Appellant that indeed the sum of N44,000,000 was paid to them in cash by the 2nd and 3rd Respondents since 2010 and they are only raising this issue so as to scatter the entire transaction.
I will not be digging deep as to ascertain whether or not the act of the Respondents offended the provisions of Section 1 of the Money Laundering (Prohibition) Act 2011 because I am of the firm belief that “He who comes to equity must come with clean hands.”
The said transaction took place in 2010. The Appellants have instituted this action since 2012 and have amended their pleadings four times and had constantly denied ever receiving the money. Suddenly, they have awoken and are pointing fingers to say that the money which they “never received” was paid illegally and thus, constitutes a crime.
I will agree with the 1st Respondent and the 2nd and 3rd Respondents’ argument that a person who has enjoyed the benefits of an illegal contract cannot be allowed to raise the issue of illegality as a defence to render the transaction void. I have read the arguments of the learned Appellants’ counsel stating that the onus of proving the legal personality of a company lies strictly and solely on the company and I agree totally with his submissions in this regard and all the cases he relied on.
The Supreme Court in the case of TERIBA VS. ADEYEMO (2010) 11 NWLR (PT. 211) PAGE 242 AT 263 – 264 PARAS F – A, held as follows:
“A person cannot benefit from his own wrong. In its adjudicatory function, the Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act or otherwise profit by his own wrongful act.”
In the case of NLNG LTD VS. ONWUKWE (2019) 10 NWLR PART 1680 PAGE 247 AT PAGE 263 PARA B – C the Court of Appeal held per Jumbo-Ofo, JCA that:
“The law is trite that the only document legally admissible in proof of an incorporated entity such as the Appellant is by production of its Certificate of incorporation.”
In the Supreme Court case of REPTICO S. A. GENEVA VS. AFRIBANK (NIG) PLC (2013) 14 NWLR (PT. 1373) PAGE 172, it was held that:
“No other document will satisfactorily establish the legal personality of an artificial person such as an incorporated liability company than its certificate of incorporation.”
Proof of juristic personality is through the production of certificate of registration or incorporation. See generally, the cases of APOSTOLIC CHURCH ILESHA VS A. G. MID-WEST 1972 4 S. C. 150 AT 159 and ABAKALIKI L. G. C. VS. ABAKALIKI R. M. O. (1990) 6 NWLR (PT. 155) 182 AT 192.
In the case of P. P. M. C. VS. AKINYEMI & ANOR (2018) LPELR – 44989, it was held that the onus of proving the legal personality of a company lies on the company itself. When the juristic status of a company is challenged, the onus lies solely and only on the company to prove that indeed it has legal personality.
I have read through the arguments of the Appellants’ counsel and I can see that they have couched their arguments by attacking the legal personality of the 2nd Respondent to transfer land to the 1st Respondent, clearly avoiding talking about how they transacted with this same “non-juristic personality” and sold the said land to her for the sum of N60,000,000. Having held that Exhibits DW1A, DW1B and DW1C are valid and original, the Appellants cannot be heard challenging the rights of the 2nd Respondent to transfer property to the 1st Respondent. If the 2nd Respondent is not a legal personality and the Appellants knew this, why then did they enter into a contract of sale with her?
You cannot benefit from a wrongful act and then run to the Courts to punish the “offender.”
Also, in the case of ACHU VS. C. S. C. CROSS RIVER STATE (2009) 3 NWLR (PT. 1129) PAGE 475 AT 500 – 501 PARAS G – A, it was held that:
“A party who has knowledge or is presumed to have knowledge of the existence of an illegality in a transaction and enters into the transaction cannot later label it as illegal and raise illegality as a defence. Equity shall not condone it, as one cannot approbate and reprobate.”
The Appellants cannot raise this issue after they obviously consented to the illegality and enjoying the benefits thereof. Equity acting in personam will not allow a party to come to the temple of justice with dirty hands and unclean conscience. Equity generally abhors subterfuge, deception and unconscionable conduct. It also does not allow a party to benefit from his inequity. See the cases of OGUNPEHIN VS. NUCLEUS VENTURE (2019) 16 NWLR (PT. 1699) PAGE 533 and S.C.B. (NIG) LTD VS. BRAITHWAITE (2013) 4 NWLR (PT. 1397) PAGE 247.
Issues six and eight are therefore resolved against the Appellants.
I have also thoroughly read through the 2nd and 3rd Respondents’ brief and I can see that they have raised a preliminary objection, stating that the entire appeal is an abuse of Court processes and proceedings of Court and according to the Amended Notice of Appeal, it is incompetent because there is no Judge of the FCT High Court known as Muhammed J who delivered the decision appealed against.
I have read through their little argument in this regard and I do not see how this appeal amount to an abuse of Court process. Abuse of Court processes is explained as a situation where a party uses Court processes to harass and oppress the other party or uses it in a vexatious manner. In the case of ADEGBANKE VS. OJELABI & ORS (2021) LPELR – 54992 (SC), the Supreme Court held that:
“There is said to be an abuse of the process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter, against the same opponent on the same issues.”
Abuse of Court process may be occasioned where there is no law supporting a Court process that has been filed. The abuse lies, among other things, in the inconvenience the other party has been put through in defending a recklessly incompetent process. I have read the Appellants’ Amended Notice of Appeal and amended brief of argument and I do not see how it amounts to an abuse of Court process.
Also, with regard to the argument that there is no Judge of the FCT High Court known as Muhammed J that delivered the decision being appealed against, it is funny how lawyers try to stir up a storm in a teacup. The error is without any doubt a typographic error which cannot rob the Appellants their constitutional rights of appeal. If indeed the 2nd and 3rd Respondents are confused as to the judgment being appealed against, how come they were able to write a 35 paged brilliant brief of argument in response to the Appellants’ Amended Brief of Argument? I would never know.
On this note, I hereby dismiss the preliminary issues raised by the 2nd and 3rd Respondents as it is irrelevant and incapable of disposing of this appeal.
This appeal is therefore hereby dismissed as the Appellants have failed to show substantial reasons why the judgment of the trial Court should be set aside. There is no order as to cost.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Mohammed Baba Idris, J.C.A., and wish to add by the way of emphasis that as the 1st Appellant had enjoyed the benefit of the transaction since 2010 when the Money Laundering (Prohibition) Act, 2011, had not come into force and was not stated to have retroactive effect, it will be idle to raise and rely on the said Act in the circumstances.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of previewing the draft of the lead judgment delivered by my learned brother, Mohammed Baba Idris, JCA.
I agree with the reasoning and conclusion reached therein. I therefore also dismiss the appeal.
I make no order as to costs.
Appearances:
U. F. Hussain, Esq. with him, A. H. Arhere, Esq. For Appellant(s)
A. Nmerengwa, Esq. with him, S. R. Ehinola, Esq. for 1st Respondent
O. J. Aboje, Esq. with him, N. Okonkwo, Esq. and L. D. Egwu, Esq. for 2nd and 3rd Respondents For Respondent(s)
