MARTINS v. SOLOMON & ORS
(2022)LCN/17074(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, April 28, 2022
CA/A/1137/2019
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
1. MRS. GRACE MARTINS APPELANT(S)
And
1. ANN J. SOLOMON 2. REAL PROPERTIES & INVESTMENT LTD 3. MUYI LADOJA 4. SENATOR RASHEED ADEWUMI LADOJA RESPONDENT(S)
RATIO
THE IMPORTANCE OF SERVICE OF COURT PROCESSES
My lords, the primacy, or should I say, the primary place, of service of process, more particularly, originating process in the adjudicatory process cannot be overemphasized. It is a cardinal requirement of our procedural law that has dovetailed over the years into threshold issue of jurisdiction and competence. Thus, without service, proper service at that, where service of process is required, any proceeding founded thereon is a nullity.
In appellate litigation, the Notice of Appeal is indisputably the originating process. Its service personally on all the parties directly affected by the appeal is sine quo non unless there is an Order of Court for substituted service of the Notice of Appeal. It follows therefore, failure to serve a Notice of Appeal on a party directly affected by the appeal is fatal and would render any proceedings founded thereon a nullity. See Order 2 Rule 2 of the Court of Appeal Rules 2021.
See also NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176-177. PER GEORGEWILL, J.C.A.
WHETHER OR NOT THE SERVICE OF ORIGINATING PROCESS IS SERVED ON THE COUNSEL OR THE AFFECTED PARTY
In law, service of an originating process, such as Notice of Appeal, must be on the affected party to the appeal and not on his Counsel unless either the Court gives leave to that effect or there is an undertaking in writing by counsel to receive service of an originating process on behalf of his client. In the instant, appeal, there is no such undertaking in writing by counsel for the 1st Respondent at the lower Court. Thus, the mere fact that a counsel represented a party before the lower Court does not ipso facto makes such a counsel either counsel for the party in an appeal or with the requisite authority to receive the service of a Notice of Appeal on behalf of his client. In the circumstances therefore, the failure to personally serve the 1st Respondent with the Notice of Appeal as required by law was fatal and rendered the appeal incompetent and thus liable to be struck out as urged upon us by the 1st Respondent vide the Notice of preliminary objection, and I so hold. See NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394. See also Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176-177. PER GEORGEWILL, J.C.A.
WHETHER OR NOT LEAVE OF COURT IS REQUIRED FOR APPEAL AGAINST THE FINAL DECISION OF THE LOWER COURT NOT IN ITS APPELLATE JURISDICTION
The law is well settled that in an appeal against the final decision of the lower Court sitting not in its appellate jurisdiction but as a Court of first instance no leave is required, notwithstanding the nature of the grounds of appeal, be they of purely of law or of mixed law and facts or of facts alone or even against exercise of discretion by the lower Court. In such circumstances, the appeal is as of right, no more no less, and therefore, no leave of Court is required! See pages 424-451 of the Record of Appeal for the final judgment of the lower Court and pages 452-458 of the Record of Appeal for the Notice and Grounds of Appeal. See also Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See further Kakih V. PDP (2015) All FWLR (Pt. 764) 20 AT pp. 44-45, where the Supreme Court had stated inter alia thus:
“The provisions of Section 241(1) and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are clear. Where a party to litigation is aggrieved with a decision given by that Court, he has a right of appeal conferred on him by the Constitution. In other subject matter which is not covered by Section 241(1) of the Constitution, the aggrieved party may have to seek for leave either from the Federal High Court or the Court of Appeal”.
See also Adigwe V. FRN (2015) All FWLR (Pt. 805) 76 AT p. 88, where the Supreme Court had reiterated inter alia thus:
“My noble Lords, it is elementary to state that every citizen of this Country may approach a higher Court on appeal against a decision(s) of a lower Court depending on the nature of the decision, or even as an interested party for favorable relief(s). That is why the Constitution has categorized these decisions on which a citizen can exercise such constitutional right of appeal as of right under Section 241(1), 244(1), 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”. PER GEORGEWILL, J.C.A.
WHETHER OR NOT THE RULES OF COURT ARE MEANT TO BE OBEYED
In the circumstances therefore, I hold that the Appellant’s brief filed on 1/7/2020 is incompetent and thus liable to be struck out. Consequently, it is hereby struck out for being incompetent. The Rules of Court are not made for the fun of it or to be toyed with by the parties or even the Court, and although they are mere handmaid for the due and smooth administration of justice and therefore would never be allowed to clog the wheel of justice, yet they must be obeyed, and where there are provisions for exercise of discretion by the Court for defaulters, such provisions must be resorted to by the parties. See Order 19 Rules 2 of the Court of Appeal Rules 2021. See also AG. Federation V. The Punch (Nig) Ltd. (2019) 15 NWLR (Pt. 1694) 40 AT p. 58; Kraus Thompson Organization V. NIPSS (2004) 17 NWLR (Pt. 901)1; Ogbu V. Urum (1981) 4 SC 1; Olowu V. Abolore (1993) 5 NWLR (Pt. 293); SPDC (Nig) Ltd V. Agbara (2019) 6 NWLR (Pt. 1668) 310 AT p. 326. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against that part of the judgment of the High Court of the Federal Capital Territory, Abuja, Coram: H. B. Yusuf J, in Suit No. FCT/HC/CV/776/2012: Ann J. Solomon V. Dr. (Mrs.) Grace Martins & Ors delivered on 18/9/2019, granting the claims of the 1st Respondent as Claimant against the Appellant as 1st Defendant were granted against the Appellant.
The Notice of Appeal was filed on 14/10/2019 on eight grounds of appeal. See pages 452-458 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 6/12/2019. The Additional Record of Appeal was compiled and transmitted to this Court on 11/6/2020. The 1st Respondent’s Notice of Preliminary objection was filed on 28/10/2020. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of …
By a Writ of Summons filed on 9/11/2012 before the lower Court, the 1st Respondent as Claimant claimed against Appellant and 2nd-4th Respondents as Defendants for the following reliefs, to wit:
1. A Declaration that the Plaintiff is the beneficial owner of the 4 – bedroom terrace house known as Flat 4 Block B14 located at Zone 1, Chess Street, Games Village, Kaura-District, Abuja, having purchased same for value from the 2nd-4th Defendants.
2. A Declaration that the occupation by the 1st Defendant of the said 4 – bedroom terrace house known as Flat 4 Block B14 located at Zone 1, Chess Street, Games Village, Kaura-District, Abuja without the consent and authority of the Plaintiff is tantamount to trespass.
3. An Order ejecting or directing the 1st Defendant to vacate the said 4 – Bedroom terrace house, known as Flat 4, B14 located at Zone 1, Chess Street, Games Village, Abuja.
4. The sum of N10,500,000.00 only being cost of rent denied the Plaintiff by the 1st Defendant since 2009 till date.
5. The sum of N3,500,000.00 only being the value of rent from 2012 till the determination of this suit.
6. The sum of N500,000,000.00 as General Damages against the defendants. See pages 1-44 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The case of the 1st Respondent as Claimant before the lower Court, as can be seen from the pleadings and evidence, both oral and documentary, led as in the Record of Appeal, inter alia was that the 1st Respondent purchased the property known as Flat 4, Block B14 comprising of 4 Bedroom Terrace House located at Zone 1, Chess Street Games Village, Abuja at the sum of N45,000,000.00 from the 2nd-4th Respondents. However, despite the assurances by the 2nd-4th Respondents that the property was unencumbered and that those staying in the property are family members of the 4th Respondent who would vacate the property, the Appellant, who has neither any equitable nor legal interest in the property, has failed, neglected and/or refused to vacate the property for the 1st Respondent. Aggrieved by the persistent refusal of the Appellant to yield possession of the said property, the 1st Respondent initiated an action against the Appellant and the 2nd-4th Respondents as Defendants before the lower Court. See pages 328-333 and 334-337 of the Record of Appeal. See also pages 1-44 of the Record of Appeal for the 1st Respondent’s Writ of Summons and Statement of Claim.
The case of the Appellant as the 1st Defendant before the lower Court, as can be seen from the pleadings and evidence, both oral and documentary, led as in the Record of Appeal, inter alia was that the Appellant was let into possession of the property in dispute by the 2nd and 4th Respondent as tenant and was sometime in November 2008 offered by the 2nd and 4th Respondent to purchase the said property at a price of N45,000,000.00, which offer she accepted but upon inquiry it was discovered that the said property does not belong to the 2nd-4th Respondents but belongs to the Oyo State Government. The Appellant being in possession was by virtue of the Federal Government’s policy of 1st occupier the person entitled to purchase the property from the Government. Thus, the 2nd–4th Respondent had no legal right to transfer to the 1st Respondent, who in turn has no right to dispossess the Appellant of her possession of the property in dispute. See pages 338-353; 354-357; 401-405 of the Record of Appeal. See also pages 108-118 of the Record of Appeal for the Appellant’s Amended Statement of Defence.
At the close of pleadings, the matter proceeded to trial before the lower Court. The 1st Respondent testified as PW1 and tendered several documents which were admitted in evidence as Exhibits. She was thoroughly cross-examined. PW2 was one Sunday Zaki and he was also thoroughly cross-examined. The Appellant testified as DW1 and tendered some documents which were admitted in evidence as Exhibits. She was thoroughly cross-examined. The husband of the Appellant, Nnabuchi Martins testified as DW2. He was also thoroughly cross-examined. However, one DSP Olufemi Ayodele Rtd, was subpoenaed to tender a document but upon objection, the document was rejected by the lower Court. At the close of the case, the parties filed and exchanged their final written addresses, which were adopted by them on 8/2/2018. However, judgment was not delivered until 18/9/2019 when the parties readopted their final written addresses and the lower Court proceeded to deliver its judgment on same date granting some of the claims of the 1st Respondent as Claimant against the Appellant and the 2nd-4th Respondents as Defendants, hence this appeal. See pages 424-451 and 452-458 Record of Appeal for the judgment of the lower Court and the Notice of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the eight grounds of appeal, namely:
1. Whether considering the provisions of Sections 102, 104 and 105 of the Evidence Act and Section 15 of the Land Registration Act, CAP 515 Laws of FCT, Nigeria the lower Court was right in relying on the photocopy of the Federal Ministry of Housing and Urban Development letter of Allocation of the property in dispute certified by the registrar of the High Court of Justice Abuja, FCT and the unregistered Power of Attorney and Deed of Assignment, admitted as Exhibits AS1, AS3 and AS4 respectively, to grant the Plaintiff’s reliefs of declarations, ejection and mesne profit over the property in dispute against the Appellant? (Distilled from Grounds 1, 2, 3, 4, 5 and 8)
2. Whether considering the circumstances of this case, the 1st Respondent is entitled to recover mesne profit from the Appellant? (Distilled from Ground 6)
3. Whether considering the N650,000.00 annual rent being paid by the Appellant to the 2nd-4th Respondents for the disputed property contained in Exhibit DG1, the lower Court was right when he awarded to the 1st Respondent the sum of N3,500,000.00 per annum in mesne profit against the Appellant effective from 1/3/2010 until vacant possession is delivered to the 1st Respondent when the sum of N3,500,000.00 is not supported by any evidence before the lower Court? (Distilled from Ground 7)
In the 1st Respondent’s brief, the three issues distilled in the Appellant’s brief as arising for determination were adopted.
I have taken time to consider the averments in the pleadings of the parties together with the evidence, both oral and documentary as led by them as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below. The parties are ad idem on the three issues as distilled in the Appellant’s brief as the apt issues arising for determination in this appeal. I therefore, adopt them as the issues for determination in this appeal. However, I shall consider the three issues together and resolve them in one fell swoop. But then there is Notice of Preliminary Objection challenging the competence of the appeal, which I shall proceed to consider first.
NOTICE OF PRELIMINARY OBJECTION
On 28/10/2021, the 1st Respondent filed a Notice of Preliminary Objection challenging the competence of this appeal and praying the Court to strike out the appeal on the following grounds, to wit:
1. Absence of service of the purported Notice of Appeal on the 1st Respondent or her counsel as mandatorily prescribed.
2. The purported Appellant’s Brief of Argument was filed outside the time limited by the rule of Court.
3. The purported Brief of Argument was filed outside the period after the service of the Record of Appeal without leave of Court first sought and obtained.
4. The purported appeal as presently constituted is fatally incompetent having not fulfilled the condition precedent.
5. The Appellant’s Grounds 2, 5, 6 and 7 as contained in the Notice of Appeal embodied in the Record of Appeal forwarded to this Court are incompetent.
6. Consequently, all the issued formulated from the said grounds are liable to be struck out.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the Notice of Appeal was not personally served on the 1st Respondent as required by law and contended that in law, failure to serve an originating process, such as a Notice of Appeal, is fatal to the appeal and urged the Court to so hold and to strike out the Notice of Appeal for being incompetent. Counsel referred to Order 2 Rule 2 of the Court of Appeal Rules 2016 and relied on NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176 -177.
It was further submitted that the Appellant’s Brief of Argument was incompetent in that it was file outside the 45 days prescribed by the Rules of this Court and contended that the Record of Appeal was served on the Appellant on 22/11/2019 and transmitted to this Court on 6/12/2019 but the Appellant’s brief was filed only on 1/7/2020 without leave of Court outside the prescribed 45 days and urged the Court to hold that the Appellant’s brief was incompetent and to strike out the Appellant’s brief and consequently, the appeal itself for lack of diligent prosecution. Counsel referred to Order 19 Rules 2 of the Court of Appeal Rules 2016 and relied on A.G. Federation V. The Punch (Nig) Ltd. (2019) 15 NWLR (Pt. 1694) 40 AT p. 58; Kraus Thompson Organization V. NIPSS (2004) 17 NWLR (Pt. 901)1; Ogbu V. Urum (1981) 4 SC 1; Olowu V. Abolore (1993) 5 NWLR (Pt. 293); SPDC (Nig) Ltd V. Agbara (2019) 6 NWLR (Pt. 1668) 310 AT p. 326.
It was also submitted that grounds 2, 5, 6 and 7 of the Grounds of Appeal are incompetent having been filed without the leave of Court and contended that in law grounds of appeal challenging the exercise of discretion requires leave of Court to be valid and urged the Court to hold that the Appellant’s grounds 2, 5, 6 and 7 challenging and/or questioning exercise of the discretion of the lower Court are incompetent having been filed without the leave of the Court and to uphold the preliminary objection and strike out these grounds as well as all the issues distilled as arising from them for being incompetent. Counsel relied on Idris V. Agumagu (2015) 13 NWLR (Pt. 1477) 441 AT pp. 472-473; ENL Consortium Ltd V. DBN Ltd (2020) 8 NWLR (Pt. 1725) 179 AT p. 195; Sani V. State (2019) 13 NWLR (Pt. 1690) 551 AT p. 573; Nwadike V. Ibekwe (1987) 4 NWLR (Pt. 67) 7; Korede V. Adedokun (2001) 15 NWLR (Pt. 736) 483.
It was further submitted that the Appellant’s Brief of Argument was incompetent in that it was filed outside the 45 days prescribed by the Rules of this Court and contended that the Record of Appeal was served on the Appellant on 22/11/2019 and transmitted to this Court on 6/12/2019 but the Appellant’s brief was filed only on 1/7/2020 without leave of Court outside the prescribed 45 days and urged the Court to hold that the Appellant’s brief was incompetent and to strike out the Appellant’s brief and consequently, the appeal itself for lack of diligent prosecution. Counsel referred to Order 19 Rules 2 of the Court of Appeal Rules 2016 and relied on A.G. Federation V. The Punch (Nig) Ltd. (2019) 15 NWLR (Pt. 1694) 40 AT p. 58; Kraus Thompson Organization V. NIPSS (2004) 17 NWLR (Pt. 901)1; Ogbu V. Urum (1981) 4 SC 1; Olowu V. Abolore (1993) 5 NWLR (Pt. 293); SPDC (Nig) Ltd V. Agbara (2019) 6 NWLR (Pt. 1668) 310 AT p. 326.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that the 1st Respondent was duly served with the Notice of Appeal as required by law in that it was served the counsel for the 1st Respondent, Chief Ogwu Onoja SAN and contended that the issue of non-service of the Notice of Appeal was never raised during the exchange of affidavit in the Appellant’s Motion for stay of execution and urged the Court to hold that the 1st Respondent having admitted service of the Notice of Appeal in paragraph 7(n) of her Counter-Affidavit filed on 25/2/2020 cannot be allowed to approbate and reprobate on the issue of service of the Notice of Appeal and to dismiss the Preliminary Objection for lacking in merit. Counsel referred to Order 2 Rule 2 of the Court of Appeal Rules 2016; pages 457-458 of the Record of Appeal, and relied on Ude V. Nwara (1993) 2 NWLR (Pt. 278) 638 AT p. 662.
It was also submitted that grounds 2, 5, 6 and 7 of the Grounds of Appeal require no leave of Court to be valid since the appeal is against the final judgment of the lower Court and contended that in law no leave of Court is required when an appeal is against the final judgment of the lower Court, notwithstanding the grounds of appeal and urged the Court to hold that once an appeal against the final decision of the lower Court, sitting as Court of First instance, was filed within the time prescribed by law it is incompetent, notwithstanding the grounds of appeal and to dismiss the Preliminary Objection for lacking in merit. Counsel referred to pages 424-451 and 452-458 of the Record of Appeal; Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Kakih V. PDP (2015) All FWLR (Pt. 764) 20 AT pp. 44-45; Adigwe V. FRN (2015) All FWLR (Pt. 805) 76 AT p. 88.
It was further submitted that the Appellant’s brief was filed within the prescribed period as prescribed by the Rules of this Court in that in law the 45 days period began to run upon the receipt of the Additional Record of Appeal on 19/6/2020 and contended that the Appellant’s brief filed on 1/7/2020 was therefore, filed within the 45 days period as prescribed by the Rules of this Court and urged the Court to so hold and to overrule the misconceived objection by the 1st Respondent and to dismiss same for lacking in merit. Counsel referred to Order 19 Rule 2 of the Court of Appeal Rules 2016 and relied on.
RESOLUTION OF THE PRELIMINARY OBJECTION
My lords, the primacy, or should I say, the primary place, of service of process, more particularly, originating process in the adjudicatory process cannot be overemphasized. It is a cardinal requirement of our procedural law that has dovetailed over the years into threshold issue of jurisdiction and competence. Thus, without service, proper service at that, where service of process is required, any proceeding founded thereon is a nullity.
In appellate litigation, the Notice of Appeal is indisputably the originating process. Its service personally on all the parties directly affected by the appeal is sine quo non unless there is an Order of Court for substituted service of the Notice of Appeal. It follows therefore, failure to serve a Notice of Appeal on a party directly affected by the appeal is fatal and would render any proceedings founded thereon a nullity. See Order 2 Rule 2 of the Court of Appeal Rules 2021.
See also NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176-177.
I have taken time to go through the entire Record of Appeal to see if there is any proof of service of the Notice of Appeal on the 1st Respondent., who undoubtedly is the principal party affected by the appeal, being the Claimant before the lower Court and in whose favor the judgment appealed against was entered by the lower Court against the Appellant and the 2nd-4th Respondents as Defendants. I can see no proof of service of the Notice of Appeal personally on the 1st Respondent. The only proof of service I can see is that of the service of a letter dated 20/11/2019 inviting the parties to settlement of documents for the Record of Appeal served on the counsel for the 1st Respondent. See pages 459-460 of the Record of Appeal. There was neither an endorsement of the 1st Respondent on the Notice of Appeal of receipt of same nor any affidavit of service of the Notice of Appeal personally on the 1st Respondent. There is therefore, in my finding, and I so hold, no personal service of the Appellant’s Notice of Appeal, which can be found at pages 452-458 of the Record of Appeal, on the 1st Respondent.
However, our attention was drawn to the deposition in paragraph 7(n) in the 1st Respondent’s counter-affidavit deposed to on 25/2/2020 in opposition to the Appellant’s Motion for stay of execution. I have taken time to read the deposition, which was to the effect that the Appellant’s Notice of Appeal does not disclose any reasonable grounds to support an application for stay of execution of the judgment of the lower Court. Honestly, I cannot see how a counter-affidavit to an application for stay of execution, to which as required by law a copy of the Notice of Appeal must be annexed, would amount to admission that the Notice of Appeal has been personally served on the 1st Respondent. In law, proof of service of a Notice of Appeal can be proved either by presenting the endorsed hard copy or by an affidavit of service.
In law, service of an originating process, such as Notice of Appeal, must be on the affected party to the appeal and not on his Counsel unless either the Court gives leave to that effect or there is an undertaking in writing by counsel to receive service of an originating process on behalf of his client. In the instant, appeal, there is no such undertaking in writing by counsel for the 1st Respondent at the lower Court. Thus, the mere fact that a counsel represented a party before the lower Court does not ipso facto makes such a counsel either counsel for the party in an appeal or with the requisite authority to receive the service of a Notice of Appeal on behalf of his client. In the circumstances therefore, the failure to personally serve the 1st Respondent with the Notice of Appeal as required by law was fatal and rendered the appeal incompetent and thus liable to be struck out as urged upon us by the 1st Respondent vide the Notice of preliminary objection, and I so hold. See NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394. See also Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176-177.
My lords, on the other ground of Preliminary Objection, I have taken a calm look at Grounds 2, 5, 6 and 7 of the Grounds of Appeal in the light of the objection that these grounds are invalid by reason of there being no leave of Court first sought and obtained by the Appellant before they were filed. The parties are ad idem that the judgment of the lower Court, being appealed against is a final judgment of the lower Court sitting as a Court of first instance. The law is well settled that in an appeal against the final decision of the lower Court sitting not in its appellate jurisdiction but as a Court of first instance no leave is required, notwithstanding the nature of the grounds of appeal, be they of purely of law or of mixed law and facts or of facts alone or even against exercise of discretion by the lower Court. In such circumstances, the appeal is as of right, no more no less, and therefore, no leave of Court is required! See pages 424-451 of the Record of Appeal for the final judgment of the lower Court and pages 452-458 of the Record of Appeal for the Notice and Grounds of Appeal. See also Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See further Kakih V. PDP (2015) All FWLR (Pt. 764) 20 AT pp. 44-45, where the Supreme Court had stated inter alia thus:
“The provisions of Section 241(1) and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are clear. Where a party to litigation is aggrieved with a decision given by that Court, he has a right of appeal conferred on him by the Constitution. In other subject matter which is not covered by Section 241(1) of the Constitution, the aggrieved party may have to seek for leave either from the Federal High Court or the Court of Appeal”.
See also Adigwe V. FRN (2015) All FWLR (Pt. 805) 76 AT p. 88, where the Supreme Court had reiterated inter alia thus:
“My noble Lords, it is elementary to state that every citizen of this Country may approach a higher Court on appeal against a decision(s) of a lower Court depending on the nature of the decision, or even as an interested party for favorable relief(s). That is why the Constitution has categorized these decisions on which a citizen can exercise such constitutional right of appeal as of right under Section 241(1), 244(1), 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”.
In the circumstances therefore, the Appellant does not require the leave of Court to appeal against the final judgment of the lower Court on all or any of the Grounds of Appeal, including Grounds 2, 5, 6 and 7, as erroneously contended by the learned counsel for the 1st Respondent. These grounds of appeal, in my finding, are therefore, valid to be heard, considered and determined on the merit. This ground of the Preliminary Objection falls and it is, without much ado, hereby overruled for lacking in merit.
On the Preliminary Objection against the Appellant’s brief, the Appellant’s brief was, as endorsed thereon and as agreed to by the learned counsel for the Appellant, filed on 1/7/2020. The Record of Appeal was served on the Appellant on 22/11/2019 but was transmitted to this Court on 6/12/2019. However, the Additional Record of Appeal was transmitted to this Court on 19/6/2020. The parties are ad idem on these facts.
My lords, the only issue therefore, between the parties on this ground of objection is whether the 45 days prescribed by the Rules of this Court, vide Order 19 Rule 2 of the Court of Appeal Rules 2021, is to be reckoned with from the date of service of the Record of Appeal on the Appellant or the date of the transmission of the Record of Appeal to this Court or from the date of the transmission of the Additional Record of Appeal to this Court?
Now, by Order 19 Rules 2 of the Court of Appeal Rules 2021, it is provided thus:
“The Appellant shall within forty-five days of the service on him of the Record of Appeal from the lower Court file in the Court a written brief, being a succinct statement of his argument in the appeal”
The provision of Order 19 Rules 2 of the Rules of this Court 2021 is too plain, unambiguous and so elegantly crafted to cause any confusion. It simply means what it says! It does not need any recourse to any difficult principles of interpretation to construe and be given effect to by this Court. The 45 days period prescribed therein for the filling of the Appellant’s brief is to be reckoned with from the date of service of the Record of Appeal on the Appellant. There is nowhere any reference was made therein to the service of and/or transmission of Additional Record of Appeal to be reckoned with in calculating the 45 days period as prescribed by Order 19 Rule 2 of the Court of Appeal Rules 2021 for the filing of Appellant’s brief.
It follows therefore, and I so hold, that the Appellant’s brief filed on 1/7/2020 was hopelessly and irredeemably invalid having been filed grossly out of time and is therefore, null and void as unassailably contended by the learned counsel for the 1st Respondent, it having been filed outside the 45 days from the date of service on the Appellant of the Record of Appeal on 22/11/2019 as prescribed by Order 19 Rule 2 of the Court of Appeal Rules 2021. Honestly, this is something a prudent counsel could have easily remedied by simply invoking the powers of this Court vide Order 6 Rule 9 (1) of the Court of Appeal Rules 2021 to exercise its discretion in favor of the Appellant to extend the time within which the Appellant was to file the Appellant’s brief and to deem the same already filed on 1/7/2020 as properly filed and served on the 1st Respondent but rather than do that the learned Counsel for the Appellant had gone ahead to join issue with the 1st Respondent on this very plain and straightforward matter and the result? A devastating blow to the case of the Appellant!
In the circumstances therefore, I hold that the Appellant’s brief filed on 1/7/2020 is incompetent and thus liable to be struck out. Consequently, it is hereby struck out for being incompetent. The Rules of Court are not made for the fun of it or to be toyed with by the parties or even the Court, and although they are mere handmaid for the due and smooth administration of justice and therefore would never be allowed to clog the wheel of justice, yet they must be obeyed, and where there are provisions for exercise of discretion by the Court for defaulters, such provisions must be resorted to by the parties. See Order 19 Rules 2 of the Court of Appeal Rules 2021. See also AG. Federation V. The Punch (Nig) Ltd. (2019) 15 NWLR (Pt. 1694) 40 AT p. 58; Kraus Thompson Organization V. NIPSS (2004) 17 NWLR (Pt. 901)1; Ogbu V. Urum (1981) 4 SC 1; Olowu V. Abolore (1993) 5 NWLR (Pt. 293); SPDC (Nig) Ltd V. Agbara (2019) 6 NWLR (Pt. 1668) 310 AT p. 326.
My lords, having struck out the Appellant’s brief for being incompetent, the appeal is thus, left bereft without an Appellant brief as required by Order 19 Rule 2 of the Court of Appeal Rules 2021 and therefore, this appeal is liable to be dismissed for lack of diligent prosecution pursuant to Order 19 Rules 10 (1) and or (2) of the Court of Appeal Rules 2021.
In the light of all I have stated and found as above, in the main, the preliminary objection succeeds and it is hereby upheld. Consequently, this appeal is hereby dismissed.
Be the above as it may, i am aware that the Court is only but the penultimate Court in the hierarchy of Courts in the land, and we have been enjoined, or rather admonished, by the Apex Court to ensure that we consider all issues presented before us by the parties. I shall therefore, in deference to the admonition of the Apex Court proceed to consider the merit of this appeal.
ISSUES ONE, TWO AND THREE
(TAKEN TOGETHER)
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issues, one, two and three, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that Exhibit AS1, the letter of allocation of the property in dispute dated 13/1/2005 being a mere photocopy of a public document, was inadmissible in evidence in that in law it being a public document is admissible either as the original or by certify true copy only and contended that the certification of Exhibit AS1 by the Registry of the High Court of the FCT Abuja and not by the Federal Ministry of Housing and Urban Development which has its custody was wrong and urged the Court to expunge and discountenance Exhibit AS1 and to hold that the 1st Respondent failed to prove any title to the property in dispute since without Exhibit AS1, the other Exhibits AS3 and AS4, unregistered documents affecting land, cannot stand on their own, and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st Respondent against the Appellant. Counsel referred to Sections 102, 104, 105 and 258 of the Evidence Act 2011; Section 15 of the Land Registration Act, CAP 515 Laws of FCT Abuja, Nigeria and relied on Goodwill & Trust Inv. Ltd V. Witt & Bush Ltd (2011) All FWLR (Pt. 576) 517; Fasina V. Ogunkayode (2005) All FWLR (Pt. 283) 116 AT pp. 130-131; National Investment and Properties Co. Ltd V. The Thompson Organization Ltd. (1969) 1 All NLR 138 AT pp. 142-143; Olukade V. Alade (1976) All NLR (Pt. 1) 56; Shanu V. Afribank (Nig.) Plc (2002) 17 NWLR (Pt. 795) 185 AT p. 221; Macfoy V. United Africa Company Ltd (1962) AC 152.
It was also submitted that the lower Court having held that Exhibits AS3 and AS4 were not tendered in proof of title to the property in dispute was estopped from turning round in the same judgment to hold, as it did, that by the delivery of the original letter of allocation to the 1st Respondent by the 2nd Respondent an equitable interest was conferred on the 1st Respondent and contended that finding amounted to a summersault on the part of the lower Court and urged the Court to set aside such perverse findings of the lower Court and hold that the 1st Respondent failed to prove her title to the property in dispute and allow the appeal and dismiss the claims of the 1st Respondent against the Appellant for lacking in merit. Counsel relied on Kakih V. PDP (2014) 15 NWLR (Pt. 1430) 374 AT p. 407; Moses Jua V. State (2010) All FWLR (Pt. 521) 1427; Gabriel V. State (1989) 5 NWLR (Pt. 122) 457; Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1; State V. Aibangbee (1988) 2 NWLR (Pt. 84) 548 AT p. 587.
It was further submitted that in law it is only where an unregistered but registrable instrument is coupled with possession that it could give rise to equitable interest in land and contended that the 1st Respondent being never in possession cannot in law rely on unregistered instruments to be entitled to either legal or equitable interest in the property in dispute and urged the Court to hold that the lower Court was in error to award title to the 1st Respondent and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st Respondent against the Appellant for lacking in merit. Counsel relied on Agboola V. UBA Plc (2011) 11 NWLR (Pt. 1258) 375 AT p. 415F; Dauda V. Bamidele (2000) 9 NWLR (Pt. 671) 199 AT p. 211; Goldmark (Nig) Ltd V. Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) 291 AT pp. 349-350; Orianzi V. AG. Rivers State (2017) 6 NWLR (Pt. 1561) 224 AT p. 273; Etajata V. Ologbo (2007) 16 NWLR (Pt. 1061) 554 AT pp. 601-602 Monkom V. Odili (2010) 2 NWLR (Pt.1179) 419 AT p. 441.
It was also submitted that the 1st Respondent neither proved nor was entitled to Mesne profit, being damages for holding onto possession and paid to a landlord by a tenant whose tenancy has expired and he is still holding possession and thus only recoverable by a landlord from his erstwhile tenant and contended that in the absence of any title to the property in dispute the 1st Respondent was not entitled to the reversionary interest in the property in dispute and urged the Court to hold that the lower Court was in error when it held that the 1st Respondent was entitled to Mesne profit from the Appellant never being a tenant to the 1st Respondent and to allow the appeal, set aside the perverse judgment and dismiss the claims of the 1st Respondent against the Appellant for lacking in merit. Counsel relied on Sobande V. Igboekwe (2018) All FWLR (Pt. 919) 32 AT p. 65; Abeke V. Odunsi (2013) All FWLR (Pt. 697) 559 AT pp. 677-678; Debs V. Cenico Nigeria Ltd. (1986) 3 NWLR (Pt. 32) 846; Bramwell V. Bramwell (1942) 1KB 370.
It was further submitted that it was a wonder how the lower Court arrived at the sum of N3,500,000.00 mesne profit payable to the 1st Respondent by the Appellant when in evidence the rent payable from 29/2/2008-28/2/2009 was N650,00000 and same amount from 29/2/2009-28/2/2010 and contended that the increase from N650,000.00 per annum to N3,500,000.00 per annum, an increase of over 400% within a period of two years, without any evidence beyond the mere pleadings and statements on oath of PW1 and PW2 without any demonstration of the sudden increase amounted to failure to proof an assertion by the 1st Respondent and urged the Court to hold that the lower Court was wrong to have granted such an unproved claim to the 1st Respondent amounting to mere speculation and to allow the appeal, set aside the perverse judgment and dismiss the claims of the 1st Respondent for lacking in merit. Counsel referred to Section 131, 132 and 133 of the Evidence Act 2011, and relied on Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 1 AT p. 273; NITEL Ltd V. Okeke (2017) 9 NWLR (Pt. 1571) 439 AT p. 462; Onovo V. Mba (2014) 14 NWLR (Pt. 1427) 391 AT p. 414; Chaka V. Messrs Aerobell (2014) All FWLR (Pt. 720) 1352 AT p. 1370; Debs V. Cenico (Nig.) Ltd (1986) 3NWLR (Pt. 32) 846 AT p. 851; Nigerian Construction and Holdings Co. Ltd V. Owoyele (1988) 4NWLR (Pt. 90) 588; Ruthlinz Inter’l Invest. Ltd & Anor V. Ihebuzor (2016) All FWLR (Pt. 852) 1453 AT p. 1483.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that in the main the facts of the case were undisputed that the Appellant was a tenant to the 2nd and 4th Respondents, which she admitted, and that she had sought to purchase the property in dispute but failed to do so and same was sold to the 1st Respondent and that the tenancy has lapsed since 2010 and by the admission of the DW2, the Appellant’s husband the property in dispute was sold in 2009 and contended that the Appellant was bound by the admission of DW2 and urged the Court to hold that on the state of the pleadings and evidence led, the lower Court was right when it admitted and acted on Exhibit AS1 as evidence of equitable interest in favor of the 1st Respondent, who by preponderance of evidence and on a balance of probability proved all her claims against the Appellant and to dismiss the appeal and affirm the correct judgment of the Court below. Counsel referred to Sections 6, 131, 132 and 133 of Evidence Act 2011, and relied on Aregbesola & Ors Vs Oyinlola & Ors (2011) 9 NWLR (Pt. 1253) 458 AT p. 572. See also BON Ltd V. Saleh (1999) 9 NWLR (Pt. 618) 331; Torti V. Ukpabi (1984) 11 SCNLR 214; Okoye V. Obiano (2010) 8 NWLR (Pt. 1195) 145 AT p. 169; Sani V. KSHA (2019) 4 NWLR (Pt. 1661) 172 AT p. 189; Okonkwo V. Mobil Oil (Nig) Plc (2010) 10 NWLR (Pt. 1679) 1.
It was also submitted that the Appellant who disowned the signature on the written statement on oath left the case of the 1st Respondent unchallenged and thereby left the lower Court with any choice than to rely and act on the unchallenged evidence of the 1st Respondent on the face of the outright inconsistent evidence of the Appellant as DW1 and contended that from the totality of the evidence led, the Appellant who admitted that she was a tenant on the property in dispute cannot turn round to claim ownership of the same property against her landlord who had sold their interest to the 1st Respondent and urged the Court to hold that the lower Court was right when it believed and acted on the credible, unchallenged and consistent evidence of the 1st Respondent to find against the Appellant whose evidence were outright lies and thus unreliable in law and to dismiss the appeal for being frivolous and affirm the correct judgment of the lower Court. Counsel relied on Nnajiofor V. Ukonu (1986) 4 NWLR (Pt. 36) 505 AT p. 506; Ezemba V. Ibeneme (2004) 14 NWLR (Pt. 894) 617 AT p. 654; Adewale V. Olaifa (2012) 17 NWLR (Pt. 1330) 478 AT pp. 520-521; Onubogu and Anor V. The State (1974) 4 ECSCR 403 AT p. 411.
It was further submitted that proper foundation was laid for the admissibility of Exhibit AS1, which original copy was tendered in evidence in the criminal trial of the Appellant and was therefore, properly certified by the Registrar of the lower Court and contended that the original of Exhibit AS1 being therefore, in the custody of the Court need not be certified by the issuing authority and having been tendered as evidence of transaction need not be registered to be admissible in evidence and urged the Court to hold that the Appellant who had no color of right cannot in law defeat the equitable interest of the 1st Respondent, whose Exhibit AS1, being the official act of the agency of Government assumed the toga of regularity and to dismiss the appeal and affirm the correct judgment of the lower Court. Counsel referred to Sections 104 (3), 105, 168(1) and 251(1) of the Evidence Act 2011, and relied on PDP V. INEC (2014) 17 NWLR (Pt. 1427) 525 AT p. 563; Adamu V. State (2017) 16 NWLR (Pt. 1592) 352 AT p. 395; Aja V. Odin (2011) 5 NWLR (Pt. 1241) 509 AT p. 543; First Equity Sec. Ltd. V. Anozie (2015) 12 NWLR (Pt. 1473) 337 2 AT p. 363; Obi V. Minister FCT (2015) 9 NWLR (Pt. 1465) 410 AT p. 629; Ifaramoye V. State (2017) 8 NWLR (Pt. 1568) 457 AT p. 491.
It was also further submitted that in law documentary evidence is the best evidence and contended that the 1st Respondent tendered sufficient documentary evidence in proof of her claims, showing her equitable interest in the property in dispute far and above the lack of any scintilla of interest in the Appellant and urged the Court to hold that in recent times the law is the even an unregistered registrable instrument if properly pleaded is admissible in proof of legal interest and not just equitable interest only since evidence permissible by the Evidence Act cannot be rendered inadmissible by state law, such as Section 15 of the Land Registration Act, CAP 515 Law of Federal Capital Territory Abuja and to dismiss the appeal and affirm the correct judgment of the lower Court. Counsel relied on Moses Benjamin & Ors V. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38; Adun V. Osunde (2003) 16 NWLR (Pt. 847) 643; Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 425; Bunge V. Gov. River State (2006) 12 NWLR (Pt. 995) 573 AT pp. 629-630; CAP Plc. V. Vital Investment Ltd (2006) 6 NWLR (Pt. 976) 220 AT pp. 266-267; Anagbado V. Faruk (2019) 1 NWLR (Pt. 1653) 292 AT pp. 311-312.
It was also submitted that the parties never joined any issue on quit notice as none of the parties pleaded service of quit notice and also did not give any evidence thereon and contended that cases are decided on issues joined by the parties and evidence led thereon and urged the Court to hold that the Appellant haven never made an issue of service of quit notice cannot merely raise it on appeal on submission of her counsel and to discountenance all the submissions on the issue of service of hearing notice and hold further that the 1st Respondent was entitled to her claim for mesne profit against the Appellant as found and granted by the lower Court and to dismiss the appeal and affirm the correct judgment of the lower Court. Counsel relied on Ajide V. Kelani (1985) 11 SC (Reprint) 82; Balogun V. Amubikanhan (1985) 3 NWLR (Pt. 11) 27; Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416 AT pp. 504-505.
RESOLUTION OF ISSUES ONE, TWO AND THREE
My lords, the crux of these three issues is whether on the state of the pleadings and the evidence led by the parties, the 1st Respondent proved by credible admissible evidence and was thus entitled to the reliefs claimed by her against the Appellant and whether or not the lower Court was right when it admitted and acted on Exhibits AS1, AS3 and AS4 in finding for the 1st Respondent on her claims against the Appellant?
In considering these three issues, I bear in mind that the parties as well as the Court, and if I may add, their counsel, are bound by the pleadings of the parties. Thus, the parties are obliged to conduct and present their cases within the ambits and confines of the case as pleaded by them. So also, are the counsel bound to make submissions supported by both the pleadings and evidence led by their clients and not to pluck submissions in the air not founded on the case as pleaded and presented in evidence by the parties, merely because counsel comes across such decisions in the course of his preparation for his arguments before the Court.
I thought I should also mention from the onset that evidence which is unchallenged and or uncontroverted is good evidence on which a Court can rely to make findings of facts.
So also, it is the law that facts admitted, either in the pleadings or under the intense heat of cross-examination, which supports the pleadings of the cross-examining party, need no further proof and are all good evidence on which a Court could rely to make proper finding of fact as between the parties.
It follows therefore, in the determination of whether a Claimant has proved his case on a balance of probability or preponderance of evidence, the burden of proof on a Claimant whose case is unchallenged is in law said to be ‘minimal.’
The 1st Respondent testified as PW1 and amongst the several documents tendered by her and which were admitted in evidence by the lower Court were Exhibit AS1, a CTC of a letter of allocation of the property in dispute dated 31/1/2005 issued to the 2nd Respondent; Exhibit AS2, a photocopy of FCMB Manager’s Cheque DATED 24/8/2009 for the sum of N45,000,000.00 as valuable consideration paid by the 1st Respondent to the 2nd Respondent for the property in dispute; Exhibit AS3, a Deed of Assignment dated 2/8/2009 and executed by the 2nd Respondent in favor of the 1st Respondent; and Exhibit AS4, Power of Attorney dated 2/8/2009 and donated by the 2nd Respondent in favor of the 1st Respondent. The PW2, was one Sunday Zaki, an Estate Agent, who testified amongst others as to the rent payable for similar property in the area of the property in dispute as being within the range of N3,500,000.00 per annum. The Appellant testified as DW1 and tendered in evidence amongst other documents Exhibit DG1, the tenancy agreement dated 29/2/2009 between the 4th Respondent as landlord and DW1 as tenant in the property in dispute for two years commencing from 2008. The husband of the Appellant, one Nnabuchi Martins, testified as DW2 and affirmed the tenant status of the Appellant to the 4th Respondent for two years at the rent of N650,000.00 per annum. See pages 5-8 of the Additional Record of Appeal for the Power of Attorney Given by Real Properties & Investments Ltd – Donor in Favor of Ann J. Solomon – Donee. See also pages 10-14 of the Additional Record of Appeal for Deed of Assignment Between Real Properties & Investments Ltd – Assignor and Ann J. Solomon- Assignee. See further pages 23-27 of the Additional Record of Appeal for the Tenancy Agreement between Senator Rasheed Ladoja and Dr. (Mrs.) Grace Martins and page 28 of the Additional Record of Appeal for the letter of offer for sale of property in dispute dated 10/11/2008 by 2nd Respondent to the Appellant.
It was on the strength of the averments in the pleadings and evidence, both oral and documentary, as led by the parties, that the lower Court had in its judgment delivered on 18/9/2019 granted some of the claims of the 1st Respondent against the Appellant and the 2nd-4th Respondents as Defendants, holding inter alia as follows:
“The 1st Defendant admitted both in her pleading and evidence before the Court that she is a tenant in the disputed property…It is therefore curious that the 1st Defendant who recognized the 2nd-4th Defendants especially the 4th Defendant as the owner of the disputed property and paid rent to him in 2009 has come up with different and seemingly confused narrative that the property belongs to a third party…However, the 1st Defendant did not tender any document in that regard. The end result is that her attempt to attack the Plaintiffs title to the disputed property is unsuccessful…At the end of the day, I am satisfied that the Plaintiff has established her entitlement to recover mesne profit from the 1st Defendant effective from 1/3/2010 in the sum of N3,500,000.00 only and I order as such… At the end of the day, the case of the Plaintiff is successful.” See pages 424–451 of the Record of Appeal.
My lords, nowadays, the written statements on oath of witnesses have been virtually turned into reproduction or replica of the averments of the parties, so much so that cross-examination has become the most basic test of the credibility of witnesses in our trial Courts, such as the lower Court. The 1st Respondent as PW1 and her witness as PW2 were thoroughly cross-examined but were not shaken at all as they maintained and remained consistent in their evidence given in chief. However, the same cannot be said of the Appellant and her husband who testified as DW1 and DW2 respectively. Under cross-examination, the Appellant as DW1 admitted that she did not sign the written statement on oath she had adopted as her evidence in chief, which admission alone rendered her entire evidence as unreliable and amounting to no evidence at all. The Appellant did not stop there, she also admitted that she is just a tenant in the property in dispute to the 4th Respondent and whose tenancy had lapsed since 2010. On his part, DW2, also minced no word when he admitted under cross-examination that not only were they tenants on the property in dispute but that they were told that the property in dispute had been sold in 2009.
Curiously, neither the Appellant as DW1 nor her husband as DW2 tendered any documentary evidence to substantiate the allegations by the Appellant that the property in dispute does not belong to the 2nd and 4th Respondents, her landlords, for which she tendered Exhibit DG1, but that it belonged to the Oyo State Government. Thus, this very crucial allegation of the Appellant forming the real basis of her defence to the claims of the 1st Respondent was left without any shred or iota of evidence. It remained bare and unproved. The law is that it is he who asserts that must prove.
However, since it is the 1st Respondent that was the Claimant the general burden of proof was on her to produce sufficient, credible and admissible evidence in proof of her claims against the Appellant, failing which her claims must be dismissed, notwithstanding the obvious weaknesses of the defence of the Appellant.
So, did the 1st Respondent prove her claims against the Appellant as required by law and was the lower Court right when it found in favor of the 1st Respondent against the Appellant and granted the reliefs claimed? This takes me to the consideration of the issue of the admissibility or otherwise of Exhibits AS1, AS3 and AS4, which forms the major plank of the challenge to the correctness of the judgment of the lower Court.
In law, the test or hallmark of admissibility of any piece of evidence is relevancy. Thus, generally the source of evidence does not affect admissibility of evidence in so far as it is relevant to the fact in issue and is duly pleaded. See Section 6 of the Evidence Act 2011. See also Aregbesola & Ors Vs Oyinlola & Ors (2011) 9 NWLR (Pt. 1253) 458 AT p. 572. See also BON Ltd V. Saleh (1999) 9 NWLR (Pt. 618) 331; Torti V. Ukpabi (1984) 11 SCNLR 214; Okoye V. Obiano (2010) 8 NWLR (Pt. 1195) 145 AT p. 169; Sani V. KSHA (2019) 4 NWLR (Pt. 1661) 172 AT p. 189.
Now, at the lower Court, the 1st Respondent had pleaded and relied on the letter of allocation, the Deed of Assignment and Power of Attorney as evidence of transaction having not perfected same as required by law. There was evidence led in foundation for the tendering of the letter of allocation that the original had been tendered by the 4th Respondent before a Magistrate Court in Abuja for the criminal trial of the Appellant. Both parties are ad idem that this fact was true. I have looked at the Record of Proceeding and I can see that indeed it is true that on 4/9/2011, the letter of allocation dated 13/1/2005 was tendered in evidence by the 4th Respondent as the PW3 before the Magistrate Court presided over by one His Worship O. O. Oyewumi (Mrs) in COP V. Mrs. Grace Martins and same was admitted as Exhibit L. See pages 67-68 of the Additional Record of Appeal.
Now, from both the pleadings and the evidence led thereon, it is clear to me and I so hold that the 1st Respondent made it abundantly clear that Exhibits AS1, AS3 and AS4 were by virtue of Exhibits AS2, the payment of N45,000,000.00 to the 2nd and 4th Respondent by the 1st Respondent, tendered as evidence of both the transaction and acknowledgment of the payment for the said amount by the 1st Respondent for the property in dispute. There was also, in my finding, proper foundation laid to show that the original of Exhibit AS1 was at no other place than in the custody of the Judiciary of the FCT Abuja. It is my view therefore, and I so firmly hold, that since the original copy of Exhibits AS1 was shown to be in the custody of the FCT Judiciary, a Certification to that effect by the FCT Judiciary, be it the High Court or Magistrate Court of the FCT, suffice for the purposes of its certification as a public document. I therefore, do not see any merit in the vehement but erroneous contention that Exhibit AS1 was not duly certified and thus, was inadmissible in evidence. I do not think so! The distinction sought to be made between the High Court of the FCT and the Magistrate Court of the FCT is like differentiating between six and half a dozen. It is meaningless. Both Courts belong to the FCT Judiciary. See Sections 104 (3), 105, 168(1) and 251(1) of the Evidence Act 2011. See also PDP V. INEC (2014) 17 NWLR (Pt. 1427) 525 AT p. 563; Aja V. Odin (2011) 5 NWLR (Pt. 1241) 509 AT p. 543; First Equity Sec. Ltd. V. Anozie (2015) 12 NWLR (Pt. 1473) 337 2 AT p. 363; Obi V. Minister FCT (2015) 9 NWLR (Pt. 1465) 410 AT p. 629.
The position of the law as regards the admissibility of Exhibit AS1, if it is taken as a document of title, and Exhibits AS3 and AS4, used to be that they can only be admissible in evidence of payment of money and/or transaction in support of equitable interest in land if coupled with possession. In otherwise, where a party who relies on such documents which are registrable instrument but are not registered, and he is not in possession then they cannot be admitted in evidence on the basis of any equitable interest in land. The decided authorities on this position of the law are legion and are as replete in the law reports. See Mohammed V. Farmers Supply Co. KDS Ltd (2019) 17 NWLR (Pt. 1701) 187 AT p. 216, where the Supreme Court had pronounced inter alia thus:
“A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money.”
See also Regd. Trustees Apostolic Faith Mission V. James (1987) 3 NWLR (Pt. 61) 556.
However, the full Court of the Supreme Court had in the recent past taken a second but perhaps more critical look at the above position of the law in so far as admissibility of evidence is within the exclusive legislative list and thus governed principally by the provisions of the Evidence Act 2011 and came to the emphatic conclusion that once evidence is rendered admissible by the Evidence Act 2011, no provisions of a State law can render such evidence inadmissible and/or exclude such evidence from being admissible in evidence. In other words, with or without possession, documents such as Exhibits AS1, AS3 and AS4 are admissible in evidence to support equitable interest in land. See Moses Benjamin & Ors v. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38.
The lower Court referred to this decision as revolutionary but the learned counsel for the Appellant will hear none of it. I think it was an extraordinary piece of decision judging from the tenaciously long held position of the law that possession was sine quo non for documents such as Exhibits AS1, AS3 and AS4, as unregistered as they are but being registrable instruments, to confer any equitable interest in land. Thus, the correct position of the law now is that an unregistered registrable instrument if properly pleaded is admissible in proof of equitable interest in land without proof of possession of the land in dispute.
This is so because, as the full Court of the Apex Court had reasoned, evidence permissible by the Evidence Act 2011 cannot be rendered inadmissible by any State law, such as the provisions of the Land Registration Laws of the various States, including the FCT Abuja. See Section 6 of the Evidence Act 2011. See also Moses Benjamin & Ors V. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38. I have even pondered over the point whether Exhibit AS1, merely a letter of allocation of the property in dispute alone, without more, is a document of title and thus registrable in law? I think not.
Now, in law civil matters are proved on a balance of probability or on a preponderance of evidence. See Section 131, 132 and 133 of Evidence Act. Having held as above that Exhibits AS1, A3 and AS4 were admissible in evidence and were thus, rightly admitted in evidence by the lower Court, the question then is: did they prove the equitable interest of the 1st Respondent in the property in dispute, and if yes, was the 1st Respondent entitled to the relief of mesne profit and the sum of N3,500,000.00 per annum as mesne profit as claimed by her against the Appellant and was the lower Court right when it granted this relief in favor of the 1st Respondent against the Appellant?
I had earlier pointed out that in civil litigation the parties, as well as the Court, and indeed even their counsel, are bound by the pleadings of the parties. The Parties are bound to present their cases in line with the averments in their pleadings and would therefore, not be allowed to plead one case and attempt to prove a different case at the trial. The Court is also bound to consider the cases as pleaded and presented in evidence by the parties and would therefore, not be allowed to go outside the cases of the parties to make findings of facts and reaching conclusions thereon outside the case of the parties and/or make a case for a party which that party did not make. So also, counsel are obliged to limit their legal submissions to the case as pleaded and presented in evidence by the parties and therefore, would not be allowed to pluck decided cases by the ear and rely on decisions which are not apposite to the facts and evidence led by the parties, and pushing them forward as judicial precedents.
In the pleadings of the parties, no issue was joined on the issuance of quit notice on the Appellant by the 1st Respondent as the parties are ad idem that the Appellant had since 2010, when her tenancy on the property in dispute lapsed stayed over in the property in dispute. This fact was admitted by both the DW1 and DW2 and therefore, needed no further proof by the 1st Respondent. The DW2 also admitted that they were told that the property in dispute had been sold by their landlord in 2009. This fact also needed no further proof by the 1st Respondent. In law, an issue or fact not pleaded goes to no issue and so also an averment in a pleading not supported by evidence is deemed abandoned. See Balogun V. Amubikanhan (1985) 3 NWLR (Pt. 11) 27; Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416 AT pp. 504-505.
My lords, from these admitted facts, it is clear and I so find as fact, as was also correctly found as fact by the lower Court, that since the expiration of the tenancy of the Appellant she has held over the property in dispute neither paying rent to the 1st Respondent nor to the 2nd-4th Respondents. In law, these unchallenged pieces of evidence as led by the PW1 and PW2 is good evidence on which a Court can rely and act to make proper finding of facts, more so as in the instant case when most of these evidence were even admitted by the Appellant as DW1 and her husband, this evidence and as DW2. The claim of the 1st Respondent was basically, and in reality, not contested with any seriousness by the Appellant. The parties did not join any issue neither on the need to issue notice to quit to the Appellant nor on the amount of rent due payable as mesne profit on the property in dispute.
Yet, the Appellant led evidence through the PW2, an Estate Agent, as to the amount payable as rent on similar property in the area, Games Village, Abuja, where the property in dispute is situate. Curiously, the PW2 was not even taken up on this aspect of his evidence in his cross-examination by the learned counsel to the Appellant. In law, such evidence is taken as admitted coupled with the lack of any effective traverse of paragraph 16 of the 1st Respondent’s Amended Statement of Claim by the Appellant. There was indeed, in my finding a total admission of the claim of the 1st Respondent against the Appellant of her entitlement both to mesne profit and the amount of N3,500,000.00 claimed and proved in evidence through PW2. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 611. See also Ogbeide V. Osula (2004) 12 NWLR (Pt. 886) 117.
In paragraph 16 of the Amended Statement of Claim of the 1st Respondent, the 1st Respondent averred as follows:
“That I am aware that the value of rent at Games Village for a similar property is N3,500,000.00 only per annum”
In response, in the Amended Statement of Defence, in answer to paragraph 16 of the Amended Statement of Claim of the 1st Respondent, the Appellant averred as follows:
“The 1st Defendant denies paragraph 15 and 16 of the Plaintiff’s statement of claim and subjects the Plaintiff to the strictest proof thereof.”
In law, in order to raise an issue of fact in pleading, there must be a proper traverse. Thus, a mere denial of a material allegation which is merely general or evasive but not specific would not amount to joinder of issues. It follows therefore, a plea that the Defendant ‘puts Claimant to the strictest proof’ or that ‘the Defendant does not admit the correctness of an allegation in the Statement of Claim’ are all insufficient denial and are deemed to amount to an admission of the averment in the Statement of Claim, and thereby obviating the need for the Claimant to proof facts already admitted by the Defendant. The law is and always been that facts admitted need no further proof. See Ekwealor V. Obasi (1990) 2 NWLR (Pt. 131) 231 AT p. 251; Ogunola V. Eiyekole (1990) 4 NWLR (Pt. 146) 632 AT p. 646; Orianzi V. AG. Rivers State (2017) 6 NWLR (Pt. 1561) 224 AT pp. 266-267; Oshodi V. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 AT p. 337.
My Lord, added to these vague traverse by the Appellant are the various admissions under cross-examination by the DW1 and DW2 which evidence are completely in support of the case of the 1st Respondent as pleaded and therefore, in law the 1st Respondent was entitled to rely and make use of them. This is so because in law evidence elicited under cross-examination is part of the proceedings and once they are pleaded facts must be given its full probative value. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 611; Ogbeide V. Osula (2004) 12 NWLR (Pt. 886) 117.
PW2 in his evidence in chief had stated inter alia thus:
“That I am an Estate Manager and acted as an Agent in the transaction…That as an Estate Manager, I am aware that the value of rent at Games Village is N3,500,000.00 only per annum for similar properties”.
The several pieces of evidence elicited from DW2 under cross-examination amounted to admission against interest and the law is trite that facts admitted need no further proof. The DW2 admitted that his wife, the Appellant did not ‘tender any document that the property belongs to her’. This clearly amounted to admission against interest by the DW2 against the Appellant, his wife. In law, facts admitted need no further proof. See Section 123 of the Evidence Act. See also Ogbiri V. NAC Ltd (2010) 14 NWLR (Pt. 1213) 208 AT p. 224; Nwankwo V. Abadie (2003) 12 NWLR (Pt. 834) 381 AT pp. 403-404.
I hold that the evidence of PW1 alone, in the absence of any joinder of issue on quit Notice by the Appellant, was sufficient to prove her claim for mesne profit against the Appellant, having already established her equitable interest in the property in dispute as against the complete lack of any color of right in the Appellant to the property in dispute. I also hold that the evidence of PW2 alone, in the absence of any contrary evidence from the Appellant and her witness DW2, was sufficient to and did prove the amount payable as mesne profit in respect of the property in dispute and as claimed by the 1st Respondent against the Appellant. I must observe, and very pertinently too, that in law, a party is not bound to call a horde of witnesses before he can succeed in his case. Thus, once he has led sufficient evidence in proof of his case that would suffice! See Section 20 of the Evidence Act 2011. See also Dare V. Fagbamila (2009) WRN 17 AT p. 192; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471 AT p. 491.
In the light of all I have stated and found above, issues one, two and three for determination are hereby resolved against the Appellant in favour of the 1st Respondent.
On the whole therefore, having upheld grounds 1 and 3 of the 1st Respondent’s Notice of Preliminary Objection and having resolved issues one, two and three for determination against the Appellant in favour of the 1st Respondent, I hold that the appeal is incompetent as well as lacking in merit and thus, liable to struck out and/or dismissed. Consequently, this appeal is hereby struck out for being incompetent and or dismissed for lacking in merit.
In the result, that part of the judgment of the High Court of the Federal Capital Territory, Abuja, Coram: H. B. Yusuf J, in Suit No. FCT/HC/CV/776/2012: Ann J. Solomon V. Dr. (Mrs.) Grace Martins & Ors delivered on 18/9/2019 granting the claims of the 1st Respondent as Claimant against the Appellant as 1st Defendant is hereby affirmed.
There shall be cost of N300,000.00 against the Appellant in favour of the 1st Respondent only.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft, the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA.
I agree with the resolution of the issues and the conclusion thereat. An Appellant’s brief by the Rules of this Court, specifically Order 19 Rule 2 of the 2021 Rules of this Court is a succinct statement of the appellant’s argument in the appeal. The brief is what sets the tone of the hearing of the appeal. It is usually what the respondents look into to put in their own brief of argument.
The brief of the Appellant must be filed within the time allocated to it by the Rules of Court. If the Appellant fails to file, there is a sanction. The repercussion is prescribed by Order 19 Rule (10)(1) and (2) which provide as follows:
10. – (1) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument. Where an Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.
(2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may, suo motu, dismiss the appeal for want of prosecution.
Time is prime when it comes to filing of brief of argument by the Appellant. Failure of the Appellant to file his brief within time leads to a dismissal of the appeal for want of prosecution. There is no use filing a brief which is out of time. The simple remedy where a brief is filed out of time is to seek the indulgence of the Court by an application for extension of time to file the brief. When this is not done as in the instant case and the Appellant rail road the Court into hearing the appeal on it, the appeal will not pass competency test. The situation as found in this appeal is with due respect, an exhibition of lack of diligence.
The appeal cannot be sustained in the circumstance. I agree with my learned brother in the lead judgment that the appeal be struck out and it is hereby struck out by me.
A look at the merit of the appeal shows clearly that the evaluation of evidence and findings of the trial Court are unassailable. Even on merit, the appeal has no substance. It is for this and the more elaborate reasons advanced in the lead judgment which I adopt as mine that I too, do dismiss this appeal. I abide by the consequential orders inclusive of the order as to costs as made in the lead judgment.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The Notice of Appeal is the originating process for an appeal. It is akin to a writ of summons: FAYEMI vs. ONI (2010) 17 NWLR (PT 1222) 326. Being an originating process, it must be served on the Respondent personally. As has been demonstrated in the leading judgment of my learned brother, Biobele Abraham Georgewill, JCA, which I was privileged to read in draft, the Notice of Appeal was not served on the 1st Respondent.
The law is settled beyond peradventure that it is fatal where the Notice of Appeal has not been served, as the consequence is that the jurisdiction of the appellate Court is not activated. See ADEGBOLA vs. OSIYI (2017) LPELR (42471) 1 at 14-15, HARRY vs. MENAKAYA (2017) LPELR (42363) 1 at 38-39 and ODEY vs. ALAGA (2021) LPELR (53408) 1 at 19-27 and 71-75.
Therefore, the consequence of the non-service of the Notice of Appeal on the 1st Respondent is that the jurisdiction of this Court to entertain the appeal has not been activated. The appeal is therefore incompetent and will have to be struck out for want of jurisdiction: ODEY vs. ALAGA (supra), BUNI vs. OZOBO (2020) LPELR (52282) 1 at 25-40, APC vs. OZOBO (2020) LPELR (52283) 1 at 10-24, NCSU vs. EKASA (2021) LPELR (54752) 1 at 6-7, ANWAKOBE vs. ESUMEI (2018) LPELR (47255) 1 at 13-17, NIGERIA CUSTOMS SERVICE vs. OGUNSINA (2022) LPELR (56415) 1 at 11-12 and NIGERIA CUSTOMS SERVICE vs. SUNDAY (2022) LPELR (56417) 1 at 12-13.
It is predicated on the foregoing reason and the more elaborate reasoning and conclusion articulated in the leading judgment that I also strike out this appeal for being incompetent.
Appearances:
Ifeanyi Egwuasi Esq. For Appellant(s)
U.B. Eyo Esq. for the 1st Respondent
The 2nd – 4th Respondents were not represented by counsel. For Respondent(s)
