KOLOKO & ANOR v. NKWONTA (2020)

KOLOKO & ANOR v. NKWONTA

(2020)LCN/14835(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/L/596M/2010

RATIO

PROCESS: EFFECT OF A PROCESS SIGNED AND ISSUED IN A FIRM’S NAME

It is no doubt settled law that a process signed and issued in a firm name is not valid and proper in view of the provisions of Sections 2 and 24 of the Legal Practitioners Act which requires that Court processes shall only be taken out by a legal practitioner whose name is on the Roll of Legal Practitioners: OKETADE vs. ADEWUNMI (2010) 2 NWLR (PT 1195) 63 at 74 and 78, OKAFOR vs. NWEKE (2007) 10 NWLR (PT 1043) 521 at 534 and ALAWIYE vs. OGUNSANYA (supra). PER OGAKWU, J.C.A.

PROCESS: NATURE OF AN IRREGULAR PROCESS

In HERITAGE BANK LTD vs. BENTWORTH FINANCE NIGERIA LTD (2018) 9 NWLR (PT 1625) 420 at 434-435, Eko, JSC stated:
“… an irregular process is a process not issued in accordance with the prescribed practice. It is however pointed out that whether the irregularity renders the process void or merely voidable depends on types of irregularity. The law is settled, as this Court pointed out in Braithwaite v. Skye Bank Plc (supra) at page 17; Nigerian Army v. Samuel (supra) at 486; Thomas v. Maude (2007) All FWLR (Pt. 361) 1749; FBN v. Uwada (2003) 2 NWLR (Pt. 805) 485; an irregularity affecting an originating process is a fundamental irregularity that goes to the roots. The statement of claim, I must point out, is not such an originating process. PER OGAKWU, J.C.A.
JURISDICTION: DISTINCTION BETWEEN PROCEDURAL JURISDICTION AND SUBSTANTIVE JURISDICTION

Jurisdictional defect that renders the adjudication incompetent ultra vires null and void is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication:Madukolu v. Nkemdilim (1962) 2 SCNLR 341. When want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the Court allows it to adjudicate in the matter. That is why it is extrinsic. When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process, having not being issued or filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced, and not whether the Court can ordinarily and competently assume jurisdiction and adjudicate in the matter in the first place. In most cases procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived. A-G., Kwara State & Anor. v. Alhaji Saka Adeyemo & Ors (2016) 7 SC (Pt. 11) p. 149; (2017) 1 NWLR (Pt. 1546) 210 at pp. 239-240, paras. G-A is one of the most recent decisions of this Court on this distinction. Rhodes-Vivour, JSC, delivering the lead judgment in the case, stated:
‘Jurisdiction is a question of law. There are two types of Jurisdiction: 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former. For example, a litigant may submit to a procedural jurisdiction of the Court where a writ of summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or statute says that the Court does not have jurisdiction.’ PER OGAKWU, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF WHERE AN ALLEGATION IS MADE

The burden of proof lies on the one who alleges and not on him who denies, since by the nature of things, he who denies a fact cannot produce any proof. See ARASE vs. ARASE (1981) 5 SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCNJ 181 at 189, AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44-46. PER OGAKWU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

1. ISAAC KOLOKO 2. BERNARD OLAKUNLE APPELANT(S)

And

ALEXANDER ANAYO NKWONTA (For Himself And On Behalf Of The Family Of Chief Daniel Onuora Nkwonta – Deceased) RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State, Coram Judice: Ade-Alabi, J. (later CJ) in SUIT NO. ID/685/1981: ALEXANDER ANAYO NKWONTA [For himself and on behalf of the family of Chief Daniel Onuora Nkwonta (Deceased)] vs. ISAAC KOLOKO & ANOR. The Respondent was the Plaintiff at the lower Court and the reliefs claimed as set out in the Further Amended Statement of Claim are as follows:
“WHEREFORE the plaintiff claims against the defendants jointly and severally:
1. the sum of N100,000.00 being special and exemplary damages for trespass as per the above particulars.
2. An Order of Injunction restraining further trespass.”

The action was initially instituted against the 1st Appellant as the sole Defendant. Subsequently by an order of the lower Court made on 28th March, 1983, the 2nd Appellant was joined as the 2nd Defendant to the action and an Amended Writ of Summons was filed and sealed on 31st March, 1983, to reflect the joinder of the 2nd Appellant. The parties filed and exchanged pleadings and the matter proceeded to hearing.

The Respondent called three witnesses in proof of his case. Upon the close of the Respondent’s case, the learned counsel for the Appellants informed the Court that he would rest on the Respondent’s case and that he had no intention to call any witness. (See page 51 of the Records).

The lower Court delivered its judgment on 3rd July, 1992 wherein it entered judgment in favour of the Respondent as claimed. The judgment of the lower Court is at pages 59-78 of the Records. The Appellants, being dissatisfied with the judgment, appealed against the same. The Notice of Appeal which was filed on 17th August, 1992, is at pages 79-82 of the Records. Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument; which I. G. Odihi, Esq., learned counsel for the Appellants, and P. O. Jimoh-Lasisi, Esq., SAN, (with L. A. Yusuf, Esq.) learned senior counsel for the Respondent adopted and relied upon at the hearing of the appeal.

The Appellants’ Brief was filed on 21st December, 2011 but deemed as properly filed on 21st May, 2013, wherein two issues were nominated for determination as follows:

Whether, the allegation of forgery made by the Respondent was proved beyond reasonable doubt as required by S. 138 (1) of the Evidence Act Cap 112 LFN 2004, and if the answer is No, whether the comparison of the signatures of the Respondent made by the trial Court in accordance with S.108 (1) of the Evidence Act and the inference DRAWN therefrom satisfactorily discharges the burden to prove the allegation of forgery beyond reasonable doubt?
2. Whether the learned trial Judge properly and adequately considered the legal arguments/submissions of the Appellants’ counsel before entering Judgment in favour of the Respondent against the Appellants?

The Respondent in his brief of argument which was filed on 1st August, 2013, but deemed as properly filed on 15th October, 2020, crafted a sole issue for determination in the appeal, namely:
Whether the Learned trial Judge was right when he held that the presence of the Defendants on the land is without authority of the Plaintiff and that the 1st and 2nd Defendants are trespassers upon the land.

I find the issues distilled by the parties idoneous; accordingly, I would consider the submissions

of learned counsel based on the issues they formulated and thereafter resolve the appeal en bloc. But first, let me in precis form set out the facts of this matter as can be deciphered from the cold printed Records. The disputed land in this matter is situate at Amore Street, Ikeja. It belonged to Chief Daniel Onuora Nkwonta, the progenitor of the Respondent, who maintains the action for himself and on behalf of the family of Chief Daniel Onuora Nkwonta (Deceased). The 2nd Appellant was some sort of major-domo for the said Chief Daniel Onuora Nkwonta. After the death of Chief Daniel Onuora Nkwonta, the 2nd Appellant sold the disputed land to the 1st Appellant, claiming that the Respondent authorised him to sell the land. The Respondent denied authorising the 2nd Appellant to sell the land and consequently commenced the proceedings which spawned this appeal. At the end of the trial, in which the Appellants’ rested on the Respondent’s case, the lower Court entered judgment for the Respondent, as claimed, holding that the signature on the letter of authority relied upon by the 2nd Appellant did not accurately resemble the signature of the Respondent.

The lower Court further held that even if it were wrong, that being family property, it was not satisfied that any authorisation given by the Respondent, was enough authority for the 2nd Appellant to dispose of the disputed land. (See pages 72-75 of the Records). It is instructive that the Appellants did not appeal against the finding and decision of the lower Court, that being family property, the purported authorisation given by the Respondent was not enough authority for the 2nd Appellant to dispose of the property (see pages 73-75 of the Records).

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants’ submission on the first issue they distilled is that the allegation of forgery which is the main pillar of the Respondent’s case was not proved beyond reasonable doubt as required by law. Section 138 of the Evidence Act and the cases of GATAH (NIG) LTD vs. ABU (2005) ALL FWLR (PT 278) 1186 at 1215-1216 and ZEIN vs. GEIDAM (2004) ALL FWLR (PT 237) 457 at 480 were referred to. It was stated that the Respondent’s allegation of forgery against the 2nd Appellant was not pleaded with sufficient particularity in the Further Amended

Statement of Claim as the particulars of forgery were not pleaded. It was opined that pleadings must be precise and should not give room for speculation and conjecture. The case of ISIAQ vs. SONIYI (2009) ALL FWLR (PT 498) 347 at 374-375 was relied upon. The Appellants asserted that the averment in paragraph 10 of the Respondent’s Reply to the Statement of Defence is an allegation of forgery against the 2nd Appellant, which the Respondent had the burden to prove vide Section 135 (1) of the Evidence Act and the cases of OHIA [sic] (2003) FWLR (PT 177) 955 at 972 and TRADE BANK vs. CHAMI (2004) ALL FWLR (PT 235) 118 at 152. The Respondent’s evidence, it was stated, was “wobbly and vague” and did not establish any forgery as no handwriting analyst was called to testify. The case of AITUMA vs. THE STATE (2007) ALL FWLR (PT 381) 1798 at 1810, 1811 was cited in support.

The Appellants contended that even though the evidence of the Respondent was unchallenged, the evidence in order to entitle the Respondent to judgment had to be credible, incontrovertible and must support the claim vide GREEN FINGER AGRO-INDUSTRY LTD vs. YUSUFU (2003) 12

NWLR (PT 835) 488. It was further contended that the burden on the Respondent under Section 138 (1) of the Evidence Act is neither diminished nor extinguished by Section 108 (1) of the Evidence Act which allows a trial Judge to compare a disputed signature with an authentic one. While conceding that the Court can compare signatures under Section 108 (1) of the Evidence Act, the Appellants submit that the signature on the Respondent’s affidavit, Exhibit D3, which the lower Court used for comparison was not the only signature of the Respondent available to the lower Court and that a Court has a duty to look at or consider documents in its case file. The cases of AGBAISI vs. EBIKOREFE (1997) 4 NWLR (PT 502) 630 and AGBO vs. THE STATE (2006) ALL FWLR (PT 309) 1380 at 1409-1410 were called in aid. It was asserted that if the lower Court had also compared the Respondent’s signature on the Respondent’s affidavit at page 31 of the Records, it would have disclosed the striking similarities in the signature and the one on the letter authorising the 2nd Appellant to sell the land.

The Appellants opine that no two signatures made by the same person

accurately resemble each other and that mere dissimilarity is not conclusive evidence and proof that they were not made by the same person. The lower Court, it was maintained, did not give any clue as to how it arrived at the conclusion that the signature did not accurately resemble each other and therefore made an unwarranted, arbitrary and subjective finding. The exercise of discretion by the lower Court, it was asserted, was not judicious and judicial; but arbitrary and subjective and not according to law and sound reasoning. The cases ofTHE QUEEN vs. WILCOX (1961) ALL NLR 658 at 666, APPEA vs. THE KING (1951) 13 WACA 145, EGBUO vs. CHUKWU (1998) 10 NWLR (PT 570) 499 at 510, ROBERTS vs. HOPWOOD (1925) AC 578 at 613 and Field’s Expert Evidence (1980) 2ND Edition, page 62 were referred to. This Court was urged to interfere and set aside the perverse and unsound findings of facts made by the lower Court and hold that the Respondent did not satisfactorily discharge the onus of proving the allegation of forgery against the 2nd Appellant beyond reasonable doubt. The cases of PLATEAU INVESTMENT & PROPERTY DEVELOPMENT COMPANY LTD vs. EBHOTA (2001) FWLR

(PT. 64) 374 at 419 and IGHOSEWE vs. DELTA STEEL COMPANY LTD (2008) ALL FWLR (PT 410) 741 at 764 were relied upon.

The quiddity of the Appellants’ submission on their second issue is that the lower Court did not adequately and properly consider all the legal arguments advanced by the Appellants’ counsel before it entered judgment in favour of the Respondent. A Court, it was posited, is duty bound to consider all material issues in a case before reaching a decision. The failure by a Court, in this regard, it was stated, violates the principle of fair hearing as all the material issues that would assist in justice being achieved had not been considered vide AFRIBANK NIG PLC vs. YELWA (2011) ALL FWLR (PT 585) 296 at 323.

The basic criteria and attributes of fair hearing as laid down in KOTOYE vs. CENTRAL BANK OF NIGERIA [sic] (no reference supplied) were referred to and it was asserted that the lower Court only focused on the Appellants’ arguments as they related to the letter of authority and the signing thereof, but failed to consider the other important submissions made by the Appellants. It was contended that if the lower Court had

considered the said fundamental submissions, it would have swayed the opinion of the Court in favour of the Appellants. The Appellants conclusively submitted that justice must not only be done, but should manifestly and undoubtedly be seen to be done and that the failure of the lower Court to consider all the material issues raised was a denial of the Appellants’ right to fair hearing and which occasioned a miscarriage of justice.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the Statement of Defence filed by the Appellants at the lower Court is a nullity having been signed by a non-legal practitioner videALAWIYE vs. OGUNSANYA (2012) 12 SC (PT III) 1 at 42-43. It was consequently submitted that the Appellants had no defence on which to join issues with the Respondent. Furthermore, it was submitted that even if the said Statement of Defence is valid, the Appellants did not call any witness to prove the averments therein. The case of ELUKPO vs. FHA (1991) 2 NWLR (PT 179) 322 and HARUNA vs. OJUKWU (1991) 1 NWLR (PT 202) 207 were referred to.

The Respondent maintained that the failure of the Appellants to

lead evidence rendered the averments in the defence on authority to sell the land abandoned. The Respondent, it was opined, testified that the purported letter of authority was not written by him; and that the evidence not having been challenged, the lower Court was entitled to accept the same. The case of WASA vs. KALLA (1978) 3 SC 21 was relied upon. The lower Court, it was contended, was correct in comparing the signature on the basis of which it held that the Respondent did not give the 2nd Appellant any authority to sell the land. It was posited that the Respondent did not raise any issue of forgery as the pleading in paragraph 20 of the Further Amended Statement of Claim is that it never authorised the 2nd Appellant to sell the disputed land to the 1st Appellant. It was iterated that the Appellants did not adduce any evidence to support the averment that the 2nd Appellant was authorised to sell the land. The burden of proving that the Respondent authorised that the land be sold, it was maintained, rests with the Appellants who ought to have called a handwriting expert in that regard.

In specific reply to the Appellants’ contention that the

Respondent collected N18,000.00 in respect of the disputed property, it was stated that the Respondent expressly stated under cross examination at page 44 of the Records that he did not receive the sum of N18,000.00 from the 2nd Appellant. On the contention that the Writ of Summons was issued in 1981 and served in 1983 after it had expired, it was submitted that the Writ was amended and sealed on 31st March, 1983, after the 2nd Appellant was joined as a party by the order of Court on 28th March, 1983 and that the Appellants’ contention in that regard was misconceived.

RESOLUTION
In redacting the salient facts of this matter and the ratio decidendi of the lower Court, I stated that the Appellants did not adduce any evidence but rested on the case of the Respondent. Furthermore, that the lower Court having held that the signature on the letter, on the strength of which the 2nd Appellant claimed that he was authorized to sell the land, was not signed by the Respondent, proceeded ex abundantia cautela, to consider whether the letter, even if issued by the Respondent, had the vires to authorise the 2nd Appellant to sell the family property. The

lower Court conclusively held at pages 74-75 of the Records that any purported authority given to the 2nd Appellant by the Respondent is not enough authority for the 2nd Appellant to dispose of the family land. While the Appellants appealed against the finding of the lower Court on its comparison of the signature, they did not appeal against the finding that the letter, even if authored by the Respondent, did not have the effect of giving the 2nd Appellant any authority to dispose of the family land. We shall return to the legal effect and consequence of the Appellants not having appealed against this finding in the course of this judgment.

But first, let me brevi manu, deal with the Respondent’s contention that the Appellants’ Statement of Defence is invalid and void, having been signed by a non-legal practitioner. By all odds, the Statement of Defence was signed in the firm name of “Olu Dairo & Efe Oziwo & Co.” (See page 14 of the Records). It is no doubt settled law that a process signed and issued in a firm name is not valid and proper in view of the provisions of Sections 2 and 24 of the Legal Practitioners Act

which requires that Court processes shall only be taken out by a legal practitioner whose name is on the Roll of Legal Practitioners: OKETADE vs. ADEWUNMI (2010) 2 NWLR (PT 1195) 63 at 74 and 78, OKAFOR vs. NWEKE (2007) 10 NWLR (PT 1043) 521 at 534 and ALAWIYE vs. OGUNSANYA (supra). But then, the Statement of Defence is not an originating process. The Respondent did not raise any issue about the validity of the Statement of Defence at the lower Court. He has only raised the contention on appeal. It seems to me late in the day for the Respondent to now so contend. The Respondent had waived his right to object to the defective Statement of Defence by not raising the issue at any stage of the proceedings at the lower Court. SeeA-G KWARA STATE vs. ADEYEMO (2016) 7 SC (PT II) 149 or (2017) 1 NWLR (PT 1546) 210 at 239-240 and ARIORI vs. ELEMO (1983) 1 SC 13.
In HERITAGE BANK LTD vs. BENTWORTH FINANCE NIGERIA LTD (2018) 9 NWLR (PT 1625) 420 at 434-435, Eko, JSC stated:
“… an irregular process is a process not issued in accordance with the prescribed practice. It is however pointed out that whether the irregularity renders the

process void or merely voidable depends on types of irregularity. The law is settled, as this Court pointed out in Braithwaite v. Skye Bank Plc (supra) at page 17; Nigerian Army v. Samuel (supra) at 486; Thomas v. Maude (2007) All FWLR (Pt. 361) 1749; FBN v. Uwada (2003) 2 NWLR (Pt. 805) 485; an irregularity affecting an originating process is a fundamental irregularity that goes to the roots. The statement of claim, I must point out, is not such an originating process.
Jurisdictional defect that renders the adjudication incompetent ultra vires null and void is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication:Madukolu v. Nkemdilim (1962) 2 SCNLR 341. When want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the Court allows it to adjudicate in the matter. That is why it is extrinsic. When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process, having not being issued or filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced, and not whether

the Court can ordinarily and competently assume jurisdiction and adjudicate in the matter in the first place. In most cases procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived. A-G., Kwara State & Anor. v. Alhaji Saka Adeyemo & Ors (2016) 7 SC (Pt. 11) p. 149; (2017) 1 NWLR (Pt. 1546) 210 at pp. 239-240, paras. G-A is one of the most recent decisions of this Court on this distinction. Rhodes-Vivour, JSC, delivering the lead judgment in the case, stated:
‘Jurisdiction is a question of law. There are two types of Jurisdiction: 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former. For example, a litigant may submit to a procedural jurisdiction of the Court where a writ of summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or statute

says that the Court does not have jurisdiction.’
The facts of this case, particularly on this objection, are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of Legal Practitioners, the appellant as the defendant, condoned the defective process. They participated in the proceedings and evidence arising from the statement of claim was called after the statement of defence joining issues with the defective statement of claim was filed. Judgment of the trial Court, based on the evidence elicited from the statement of claim, was delivered without objection. Even at the Court of Appeal no issue was made of the alleged defective statement of claim. The appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process. The right of the defence to object to the irregularity ex facie the statement of claim is a waivable right, being a private right:A-G., Kwara & Anor v. Adeyemo (supra); Ariori v. Elemo (1983) 1 SC 13; (1983) 1 SCNLR 1. This issue, accordingly, cannot be resolved for the

appellant. I hereby resolve against [sic] it against the appellant.”
See also NABOBO vs. MUSA (2018) LPELR (44808) 1 at 10-15 and DHL vs. ADEMOLA (2018) LPELR (46041) 1 at 8-13.
The Respondent upon being served the defective Statement of Defence joined issues on the same by filing a Reply to the Statement of Defence. I iterate that the Respondent, not having challenged the defective Statement of Defence in a timely manner, throughout the proceedings at the lower Court, had condoned the Statement of Defence and waived his right to object to the irregularity in the process.

The matter does not there. As already stated, the Appellants did not call any witness. They rested their case on the Respondent’s case. It is well settled that in a circumstance, such as in the instant case, where the defendant elected not to call evidence, he must be taken as admitting the facts of the case as stated by the plaintiff and must stand on his submission and is bound. The defendant shall be taken as having abandoned their defence: AKANBI vs. ALAO (1989) LPELR (315) 1 at 53-54. The situation where a defendant elects not to lead evidence in defence but

rests on the case of the plaintiff, is a legal strategy which if it succeeds enhances the case of the defendant, but where it fails, it would be Nunc Dimittis for his case. See THE ADMIN AND EXECUTOR ESTATE OF GEN SANI ABACHA (DECEASED) vs. EKE-SPIFF (2009) LPELR (3152) 1 at 59-60 and NEWBREED ORGANISATION vs. ERHOMOSELE (2006) LPELR (1984) 1 at 53-54. Now, how did this stratagem work out for the Appellants in this matter?

The Appellants have rightly submitted that the fact that evidence is unchallenged does not mean that the claim would be sustained as such unchallenged evidence may be insufficient to sustain the claim: HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659. But what is the Respondent’s case which the Appellant’s would be taken as having admitted by their decision not to lead evidence? The encapsulation of the Respondent’s case, relative to the litis contestatio, which is on whether the 2nd Appellant was authorised to sell the disputed land or not, is the averment in paragraph 20 of the Further Amended Statement of Claim. It reads:
“20. The plaintiff avers that the 2nd defendant was never authorised by him or any

member of his family to deal with or dispose the property in dispute to the 1st defendant.”
(See page 40 of the Records)

The Appellants have built monuments of allegation of forgery on the above averment culminating in their contention that the Respondent did not prove the allegation of forgery beyond reasonable doubt. In my deferential view, I am unable to construe the said averment as pleading of forgery which would require proof beyond reasonable doubt and being particularised as required by the rules of pleadings.
In point of fact, it is the Appellants that pleaded in paragraph 18 of the Statement of Defence on page 13 of the Records, that the Respondent by a letter dated 6th March, 1981 authorised the 2nd Appellant to sell the disputed land. So while the averment of the Respondent was a denial of authorization; the averment of the Appellants was an assertion of authorisation, consequent upon which they had the evidential burden of proving their assertion. The burden of proof lies on the one who alleges and not on him who denies, since by the nature of things, he who denies a fact cannot produce any proof. See ARASE vs. ARASE (1981) 5

SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCNJ 181 at 189, AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44-46. The letter which the Appellants relied upon as the authorisation is in evidence, but based on the denial of the Respondent that he did not issue any authorisation, the lower Court after a comparison of the signature pursuant to Section 108 (now Section 101) of the Evidence Act held that the signature does not accurately resemble the signature of the Respondent. (See pages 72-73 of the Records).
I have not lost sight of the averments in paragraphs 9 and 10 of the Reply to the Statement of Defence. Undoubtedly, the word “forgery” was employed by the Respondent in paragraph 9 thereof; but an integral reading of the averments makes it clear that the averment is not a positive allegation of forgery which would require particularisation and proof beyond reasonable doubt. In the said paragraphs, the Respondent iterated his averment that he did not authorise the 2nd Appellant to sell the disputed land and that any letter of authority, the existence of which is denied, would be a

forgery. It is my deferential view that this is not an assertion of forgery that would require the Respondent to establish the same beyond reasonable doubt. It remained a denial that he did not issue any letter of authority for the land to be sold. It seems to me that on the state of the pleadings, the burden was on the Appellants who propounded the letter as authority for the 2nd Appellant to act (which was denied by the Respondent), to prove that the Respondent did in fact issue the said letter. The Appellants by electing not to call evidence did not discharge the evidential burden upon them.
Be that as it may, if arguendo, the Appellants are correct in their contention that the Respondent pleaded forgery in paragraphs 8 and 9 of the Reply to the Statement of Defence, then the absence of particulars of forgery disentitles the Respondent from relying on the same and the lower Court in the circumstances can only adjudicate on the basis of the averment in paragraph 20 of the Further Amended Statement of Claim. In EYA vs. OLOPADE (2011) LPELR (1184) 1 at 27-28 Onnoghen, JSC (later CJN) stated:
“To begin with, it is settled law that before a party

can legally rely on fraud or forgery, the fact must not only be pleaded but particulars thereof must be provided in the pleadings.”
Such a pleading without particulars must be discountenanced. See also KAREEM vs. UNION BANK (1996) LPELR (1665) 1 at 23 and FINNIH vs. IMADE (1992) LPELR (1277) 1 at 49.
In the diacritical circumstances of this matter, since the Respondent’s action was not founded upon any allegation of forgery, and even if, as argued by the Appellants, it was, the fact that no particulars of forgery were pleaded necessarily implies that the allegation of forgery must be discountenanced: EYA vs. OLOPADE (supra) at 38-39. (Per Rhodes-Vivour, JSC). The Appellants’ submissions that forgery was not proved beyond reasonable doubt are consequently non sequitur.

The Appellants further argued that the lower Court ought to have gone through the documents in the case file and compare the signature on other documents signed by the Respondent in order to conclusively ascertain and decide whether the signature on the purported letter of authority was similar to the Respondent’s signature. Now, it has to be remembered that

the lower Court compared the signatures on documents that were admitted in evidence at the trial. Section 108 of the Evidence Act which the lower Court acted upon in comparing the signatures (which is now Section 101 of the Evidence Act, 2011), requires the Court to compare signatures on a document admitted or proved to the satisfaction of the Court to have been made by that person. The signature which the lower Court used for comparison was the signature in an affidavit deposed to by the Respondent and which was admitted in evidence as Exhibit D3. So the lower Court acted on the admitted evidence. While it is correct that the Court is entitled to make use of the documents in the case file in order to arrive at a just decision, it has to be remembered that a Court in not a knight errant marauding all over the place in a quest for chivalric virtues. The purported letter of authorisation was in evidence before the lower Court; the signature on the Respondent’s affidavit used for comparison (Exhibit D3) was also before the Court. It was not the business of the Court to go scouting for signature of the Respondent on any other documents in order to arrive at

a decision on the comparison of signatures that will be favourable to the Appellants. That would be skewed justice.
The Appellants further argue that the product of the comparison of the signatures by the lower Court was not a proper exercise of judicial discretion as the lower Court did not give a clue as to what informed its decision that the signatures do not accurately resemble each other: The power of a Court to compare signatures and form an opinion on the same is not in doubt. This is the power the lower Court exercised and in stating its opinion on the outcome of the comparison, the lower Court held as follows at pages 72-73 of the Records:
“The 2nd Defendant relies on the document attached to Exhibit P. 2 as the authority given to him by the Plaintiff to sell the land to the 1st Defendant. I have taken another look at the document. It purports to be a letter addressed to the 2nd Defendant on the letter headed paper of D.O. Nkwonta & Sons Enterprises Ltd and signed by the Plaintiff.
Under circumstances such as this, the Court should invoke the provisions of Section 107 [sic] of the Evidence Act. Under that Section:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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‘In order to ascertain whether a signature writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature writing, seal or finger impression has not …. been produced or proved for any other purpose.’
Exhibit P.2. Page 4 as I said is the letter purported to have been written by the Plaintiff. Exhibit D.3 is the Affidavit deposed to by the Plaintiff in the course of this action. I have compared the signature on Exhibit P.2 Page 4 with the signature on Exhibit D.3 in order to ascertain whether the signature on Exhibit P.2 page 4 is that of the Plaintiff.
I have come to the conclusion that the signatures on Exhibit p.2 Page 4 does not accurately resemble the signature on Exhibit D.3. I am therefore unable to find and hold that the signature on Exhibit P.2. page 4 is that of the Plaintiff. I therefore hold that the Plaintiff did not give the 2nd Defendant any authority to sell the land.”

I am unable to fathom how the Appellant can contest the opinion of the lower Court on the comparison it conducted on the signatures on the basis that it was not a proper exercise of judicial discretion. Howbeit, I have equally compared the signatures in question (Exhibit P2. Page 4 and Exhibit D3) and I entirely agree with the lower Court that the signatures do not accurately resemble each other. See generally YONGO vs. C.O.P. (1992) 4 SCNJ 113, NGADIUKWU vs. MOGHALU (2014) LPELR (24366) 1 at 81-82 and FCMB PLC vs. CP-TECH CONSTRUCTION CO LTD (2015) LPELR (25006) 1 at 43-48.

The matter does not end there. The lower Court did not anchor its decision on the signature comparison alone. It further proceeded to consider the effect of the letter of authorisation as though it was duly signed and issued by the Respondent and it conclusively held that any purported authority given to the 2nd Appellant is not enough authority for the 2nd Appellant to dispose of the disputed land (See pages 74-75 of the Records). The Appellants did not appeal against this finding, consequent upon which the finding remains unassailable and binding on the

parties. See AMALE vs. SOKOTO LOCAL GOVT (2012) 5 NWLR (PT 1292) 181, SCC (NIG) LTD vs. ANYA (2012) 9 NWLR (PT 1305) 213, NWAOGU vs. ATUMA (2013) 11 NWLR (PT 1364) 117 and ADAMU vs. ESONANJOR (2014) LPELR (41137) 1 at 29-30.
I took cognizance of Ground 5 of the grounds of appeal (page 81 of the Records), where the Appellants complain that the lower Court failed to pronounce on their submission, inter alia, that the Respondent was the head of late Nkwonta’s family and had authority as family head to dispose of the property. This ground of appeal interrogates the alleged failure by the lower Court to consider an issue raised by learned counsel, it is not directed at reversing the finding of the lower Court that the purported letter of authority was not enough authority for the 2nd Appellant to dispose of the family land of the Respondent. The said finding therefore remains binding on the parties: ONABIYI vs. I.O.N. PETROLEUM LTD (2017) LPELR (41922) 1 at 25-26, EZIKE vs. EGBUABA (2019) LPELR (46526) 1 at 13 and BIARIKO vs. EDEH-OGWUILE (2001) LPELR (779) 1 at 33.

I turn now to the Appellants’ contention that the lower Court failed to

consider some of the issues raised by the Appellants, on account of which the Appellants right to fair hearing was breached and a miscarriage of justice occasioned. Let me state that as a general rule, all Courts, except the apex Court are duty bound to consider all issues raised before it. But a close examination of the authorities on the point disclose that it is not in all instances where a Court fails to consider all issues raised before it that it would indubitably result in the decision reached being set aside. In BRAWAL SHIPPING (NIG) LTD vs. F. I. ONWADIKE CO. LTD (2000) LPELR (802) 1 at 13, Uwaifo, JSC stated as follows:
“It is no longer in doubt that this Court demands of, and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal… Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial.”
(Emphasis supplied)

See also SIFAX (NIG) LTD vs. MIGFO (NIG) LTD (2018) LPELR (49735) 1 at 56-57 and C. N. OKPALA & SONS LTD vs. NB PLC (2017) LPELR (43826) 1 at 17.
Equally, in ORIANWO vs. OKENE (2002) 14 NWLR (PT 786) 156 at 182-183, Ogundare, JSC stated:
“If the issue was VITAL to the resolution of the dispute between the parties, they would be expected to either order a retrial or resolve the issue themselves upon the evidence available if the question of credibility of witnesses would not arise.”
See alsoOVUNWO vs. WOKO (2011) LPELR (2841) 1 at 19, ONIFADE vs. OLAYIWOLA (1990) LPELR (2680) 1 at 25 and OGUNDARE vs. ALAO (2013) LPELR (21845) 1 at 39-42.
The above dicta from the apex Court sets out several parameters that are meant to act as a beacon for the attitude of an appellate Court where a Court does not consider all the issues raised before it. These parameters include whether the issue was properly raised, whether the issue is vital, crucial and substantial. In simple terms, it would appear that failure to consider and pronounce on all issues before the Court will not, per se, constitute a denial of fair hearing unless such omission occasioned a

miscarriage of justice: BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270. Kalgo, JSC expressed the position in the following words in OSASONA vs. AJAYI (2004) LPELR (2790) 1 at 20:
“It is trite law that a Court or Tribunal should consider all issues for determination brought before it but failure to consider and pronounce on all issues submitted to the Court or Tribunal may not necessarily amount to a miscarriage of justice or denial of fair hearing.”
See also UBN vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127.
It seems that in order to conclude that there was a denial of fair hearing with the consequent miscarriage of justice, the issues which the Appellants contend that the lower Court did not pronounce upon ought to have been properly before the lower Court, vital, crucial, substantial and of such a nature that it cannot be resolved on appeal upon the available evidence, in so far as it would not involve the credibility of witness: SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 67-75.
The first issue which the Appellants complain that the lower Court did not consider is the contention that the Respondent admitted

collecting part of the money for the disputed land and that it is not for the Court to look into the inadequacy of consideration as the fraud allegedly committed by the 2nd Appellant against the Respondent did not affect a third party. The foundation of this contention is that the Respondent admitted collecting N18,000.00. This is however not borne out by the evidence on record. In his testimony under cross-examination at page 44 of the Records, the Respondent clearly stated: ”I did not receive N18,000.00 from the 2nd defendant.” The Respondent’s affidavit on which the Appellants build the monument of the Respondent having collecting money does not even bear out the assertion. In paragraphs 17 and 18 of the said affidavit at page 111 of the Records, it deposed as follows:
“17. That the first time I confronted Mr. I. O. Koloko the defendant herein, about the property in dispute, he told me that the he paid the sum of N18,000 for the said property through the proprietor of Ambassador Hotel situate apposite the property in dispute.
18. That the said proprietor acknowledged that a sum of N18,000 was paid through him and gave me a

receipt No. 0025 dated 27th August, 1981 signed by the said Bernard Olakunle, a copy of which is attached herewith and marked Exhibit H.”
The above depositions do not embody any admission that the Respondent collected the sum of N18, 000.00.
The other issue which the Appellants argue that the lower Court did not consider is the contention that the Writ of Summons had expired and was not renewed before the same was served on the 2nd Appellant. I have already stated in the course of this judgment that the action was initially instituted against the 1st Appellant as the sole defendant. (See page 1 of the Records). It was only pursuant to the order of the lower Court of 28th March, 1983 that the 2nd Appellant was joined as a party to the action. Upon the joinder, an Amended Writ of Summons was issued and sealed on 31st March, 1983 and duly served on the 2nd Appellant (See page 5 of the Records). The Appellants’ contention in this regard is not borne out by the Records.
In splice, the issues which the Appellants complain were not pronounced upon and on the basis of which they hanker after the decision of the lower Court to be set aside for

alleged breach of fair hearing are not issues that are crucial, vital, substantial and properly before the Court. Indeed, as I have demonstrated, they are issues which can be resolved by recourse to the Records of Court as the said issues do not involve the question of credibility of witnesses: ORIANWO vs. OKENE (supra) and SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (supra). Accordingly, I find and hold that the lower Court properly and adequately considered the legal arguments/submissions of the Appellants on the vital, crucial and substantial issues that were properly before the lower Court.

It seems that every blade of grass in the field of this judgment had been tended and groomed; and right on cue the harbour looms into view for this judgment to be anchored. It only remains to state that from the totality of the foregoing, this appeal has no whit, scintilla or iota of merit. It therefore fails and it is hereby dismissed. Accordingly, the judgment of the lower Court is affirmed. There shall be costs of N200,000.00 in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Ugochukwu

Anthony Ogakwu, J.C.A., with nothing useful to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the judgment just delivered by my learned brother, the HON. JUSTICE UGOCHUKWU ANTHONY OGAKWU, JCA wherein the appeal was held to be devoid of any merit and was consequently dismissed.

I am in agreement with the analysis of the issues for determination distilled in the appeal and the resolutions therein. I agree that the appeal lacks merit and deserved to be dismissed; I too dismiss it.
I abide with the consequential orders made as to costs.
The appeal is dismissed.

Appearances: