MR. TEKOBO OLORA v. ELDER SAMUEL ADEGBITE
(2012)LCN/5376(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of May, 2012
CA/B/164/2005
RATIO
COMMERCIAL LAW: NEMO DAT RULE
The learned trial judge is right in holding that the doctrine “nemo dat quod non habet” applies here. Mr. Oni Adegbite cannot give what he does not have. See Labode v Otubu & Anor (2001) 85 LRCN 771 or (2001) 7 NWLR (Pt 712) 256. See also Odekilekun v. Hassan & Anor. (1997) 12 NWLR (Pt.531). PER CHINWE EUGENIA IYIZOBA, J.C.A.
APPEAL: WHAT SHOULD A GROUND OF APPEAL COMPLAIN OF
See Omega Bank Plc v O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547 where Niki Tobi observed:-
“…A ground of appeal should complain of the live issues in the matter which will determine the fortunes of the appeal one way or the other. Where grounds of appeal do not properly relate to or fit into the decision of the court, they gallivant on the appeal, thus serving no useful purpose.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
ACTION: HOW IS A CASE DETERMINED IF IT IS STATUTE BARRED
In determining whether or not a case is statute barred, the court is restricted to the writ of summons and statement of claim where the issue is raised in limine by preliminary objection. See Amusan v. Obideyi (2005) 14 NWLR (Pt.945) 322. Where pleadings have been filed and the parties have joined issues as to the date the cause of action arose, the issue must be proved by evidence adduced by the parties in the course of hearing. It is then for the trial court to determine the date on which the cause of action arose based on the evidence adduced by the parties. See Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Savannah Bank of Nig Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Pt.49) 212: Woherem J. P v. Emereuwa & Ors (2004) 13 NWLR (Pt.890) PER CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: WHETHER A CERTIFIED TRUE COPY IS ADMISSIBLE FOR A PUBLIC DOCUMENT
Learned Counsel is correct that exhibit 3 was obtained during the pendency of the suit. He is also correct that being a public document only a certified true copy is admissible in evidence. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUDGMENT: WHETHER COMMENTS BY A JUDGE ARE THE SAME AS FINDINGS OF FACTS
The law is that comments by a judge are not the same as findings of facts on issues. In the course of writing a judgment, a judge is bound to air his views and make comments here and there and may also give reasons for certain findings. The concern of an appellate court is to determine whether the decision of the trial court is right and not whether the reasons for the decision are right. See Nkado v Obiano (1997) 5 NWLR (Pt.503) 31 @ 56 F; Nwankwo v. E.D.C.S.U.A. (2007) 5 NWLR (Pt.1027) 377. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. TEKOBO OLORA Appellant(s)
AND
ELDER SAMUEL ADEGBITE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): In the High Court of Ondo State, Owo judicial division, the respondent herein as plaintiff on the 6th of November, 2002 instituted an action against the appellant by a writ of summons seeking the following reliefs:-
1. A declaration that the agreement dated the 13th day of January, 1989 made between Mr. Oni Adegbite and the defendant Mr. Tekobo Olora at Owo purportedly selling the plaintiff’s cocoa plantation at Agbi camp, Usho, Owo to the defendant is illegal, unconstitutional, null and void and of no legal consequence.
2. An order of perpetual injunction restraining the defendant, his servants, privies, agents and any other person acting for, on behalf of and on the instruction of the defendant from committing further acts of trespass on the cocoa plantation belonging to the plaintiff and which is situate, lying and being at Agbi camp, Usho Owo.
3. The sum of N10 Million only as both special and general damages for the trespass committed since 1989 and still being committed by the defendant in the plaintiff’s cocoa plantation at Agbi camp, Usho Owo since his illegal entry and occupation.
The facts relevant to this appeal are as follows: – The plaintiff/respondent became mentally ill in October 1988 as a result of the activities of fraudsters who duped him of the sum of N1.2 Million. He was hospitalized for a while and then continued treatment as an out-patient until he fully recovered in 1998/99. While the plaintiff/respondent was ill, his younger brother Mr. Oni Adegbite purportedly sold his (plaintiff/respondent’s) cocoa farm at Agbi camp, Usho, Owo to the defendant/appellant for the sum of N7, 000.00 vide an agreement dated the 13th day of January, 1989 admitted in evidence as exhibit 7. When the plaintiff/respondent recovered from his illness and became aware of the transaction in 1998/99, he sought to dialogue with the defendant/appellant with a view to resolving the matter but the defendant/appellant was uncooperative. The plaintiff/respondent then got his lawyer to write a letter dated 13/7/02 to the defendant/appellant ordering him to vacate the cocoa plantation. The letter was admitted in evidence as exhibit 4. In response, the defendant/appellant’s lawyer replied exhibit 4 through a letter dated 25/7/02 and admitted in evidence as exhibit 5. Therein he told the plaintiff/respondent that he was willing to vacate the said plantation on condition that the plaintiff/respondent refunded him the sum of N1.5 Million he invested in improving the plantation. The plaintiff/respondent thereupon instituted this action at the High Court Owo claiming the reliefs already set out above. The defendant/appellant entered appearance and pleadings were duly exchanged. During the hearing, the plaintiff/respondent called three witnesses and the defendant/appellant two. The parties addressed the court and at the end, the trial judge delivered judgment nullifying the sale agreement dated 27/7/04, exhibit 7.
The defendant/appellant being dissatisfied with the judgment filed a notice of appeal containing six grounds of appeal. With the leave of the court, the appellant filed an additional ground of appeal, bringing the total number of grounds of appeal to seven. Out of these seven grounds of appeal, the appellant in his brief formulated four issues for determination. They are:-
1. Whether the lower court was right in holding that the Appellant needed legal authority from the Respondent before the execution of Exhibit 7 in view of the fact that Mr. Michael Oni Adegbite 2nd P.W. and Mrs. Helen Adegbite 3rd P.W. are agents of a disclosed principal to wit: the respondent? (Grounds 1 & 2)
2. Whether this case is not statute-barred having been filed on 16th November, 2002 by the respondent when the cause of action arose on the 13th of January, 1989? (Ground 5)
3. Whether exhibit 3, i.e. the medical report on the sickness of the respondent dated 24/6/2003 is legally admissible by the lower court in view of the provisions of Section 91(i) (ii) (b), (2) & (3) of the Evidence Act Cap 112 Laws of the Federation 1990? (ground 7)
4. Having regard to the pleadings, the evidence led in support and documents tendered from the record, whether or not the lower court was right in granting legs 1 and 2 of the reliefs sought by the respondents. (Grounds 2, 4 & 6)
The respondent on 24/9/07 filed his brief of argument out of time but failed to regularize same in spite of numerous adjournments to enable him do so. The court consequently on the application of the appellant, granted an order that the appeal be heard on the appellant’s brief alone, the respondent, having failed to file his brief of argument as required by law. The appeal was fixed for hearing on the 6th day of March, 2012. Hearing notice was duly served on the respondent; but neither he nor his counsel appeared. On 6/3/12, the appellant’s counsel adopted and relied on their brief dated 17/6/10 and filed on 21/6/10. He urged the court to allow the appeal and set aside the judgment of the lower court.
ISSUE 1
Whether the lower court was right in holding that the Appellant needed legal authority from the Respondent before the execution of Exhibit 7 in view of the fact that Mr. Michael Oni Adegbite 2nd P.W. and Mrs. Helen Adegbite 3rd P.W. are agents of a disclosed principal to wit: the respondent?
On this issue learned counsel for the appellant Kola Olawoye Esq. after setting out the different methods by which the relationship of a principal and agent may arise, submitted that from the recitals in the sale agreement, exhibit 7 at pages 80 – 81 of the record of appeal, the relationship between the respondent and his brother Mr. Oni Adegbite falls within the category of agency created by the doctrine of estoppel and also by implication of law as in cases where it is urgently necessary that a person should act on behalf of another. Learned counsel for the appellant examined the pleadings and evidence led by the parties which in essence was that the respondent was mentally ill; that his only brother Oni Adegbite was taking care of him; according to Oni Adegbite, that the respondent’s debtor came to demand debt owed him by the respondent, that he consulted with PW2, his brother’s wife and that they agreed to pledge the respondent’s cocoa farm for N7000 to pay the debt. Oni Adegbite and PW2 testified that they did not tell the respondent about the sale of his property because the doctor warned them not to tell him anything that can escalate his state of health. Learned Counsel construed these pieces of evidence to mean that Oni Adegbite, PW3 acted on behalf of his brother, the respondent as his agent with his apparent authority to deal with the said cocoa farm. He submitted that it is immaterial whether PW3 had any authority in fact. He further submitted that the respondent is estopped after taking or deriving benefit from the said sale to turn round now that he has been cured of his sickness with the appellant’s money to deny ever authorizing the sale of his cocoa farm. Counsel submitted that since there was no evidence to show that the appellant knew or ought to have known that PW3 exceeded his authority or had no authority at all to sell the cocoa farm on behalf of the respondent, that the respondent’s complaint is belated and an afterthought. Relying on authorities set out in the brief, counsel submitted that by the facts of the case as shown in the pleadings and evidence led; that by operation of law, the doctrine of agency of necessity can be inferred. Counsel further submitted that the recitals in the sale agreement exhibit 7 show clearly where and why PW3 got the mandate to sell off the respondent’s cocoa farm. The said document had recited that the respondent is seriously ill; that the respondent is of the same parentage as the vendor PW3; that the entire Adegbite family had mandated the vendor to sell off the cocoa farm to raise money to treat the illness of the respondent. Learned counsel submitted that in view of the above, the learned trial judge was wrong to have held that the appellant should have insisted on legal authority from the respondent before going ahead to execute exhibit 7.
I have read carefully the submissions of learned counsel. With all due respect I am of the view that they are untenable in law. The case of the respondent simply is that his brother Oni Adegbite had no legal authority to alienate his cocoa farm; that he did not at any time give his consent or approval to the transaction because he was at the relevant time mentally sick. He did not give Oni any power of attorney or any document appointing him his agent or authorizing him to deal with his property in any way whatever. He therefore wanted the court to declare the agreement of sale of his cocoa farm, exhibit 7 null and void and of no legal consequence. The appellant’s contention on the other hand is that the respondent’s brother Oni Adegbite, his wife and his sister being members of his family had an implied authority to dispose of his property in order to raise money to treat his illness; that his brother, the vendor was his agent by necessity; that it was wrong for the trial judge to insist on legal authority knowing that the respondent was too sick to give any such authority. The appellant clearly did not dispute the fact that the respondent was seriously ill at the time of the sale and that he was not in a position to give consent to the transaction. After he fully recovered from his illness and became aware of the sale, the respondent did not ratify it. It is not possible to hold that Oni Adegbite acted as agent of the respondent in the sale of the property because he is his only brother of the full blood. There is no such provision in the law of agency. He does not also qualify as an agent of necessity because he does not owe the respondent any duty of care. For a person to be legally able to act as an agent of necessity to another, that person must owe a duty of care to that other. Blood relationship alone without more will not confer legal responsibility on one person to take care of another at common law or any Nigerian statute. The entire Adegbite family cannot mandate Oni Adegbite to sell the respondent’s farm because the farm belongs to the respondent personally and not to the family. Even on the death of a man, his wife, children or brothers have no legal right and cannot dispose of his property without letters of administration or will duly admitted to probate. Such act is doubly impossible and illegal when the man is still living and he did not authorize the transaction. Indeed the appellant’s contention that there was no evidence to show that he knew or ought to have known that PW3 exceeded his authority or had no authority at all to sell the cocoa farm on behalf of the respondent is with due respect totally misconceived. On the contrary, there was abundant evidence that the appellant knew that PW3 had no authority from the respondent to sell his farm. The appellant and his witness DW1 confirmed the evidence of the respondent that as at the time the cocoa plantation was sold he was not in a position to enter into any transaction as he was not normal for ten years. DW1 had testified that he asked to see the owner of the farm but they told him he had depression arising from bad business; that the depression had put him in a state of coma and that seeing him will serve no useful purpose. See Page 46, lines 26 – 30 record of appeal. DW1 further said at page 47 lines 6-8 under cross-examination that he agreed that a man in coma was not in a position to give his consent to any transaction. Even the appellant himself at page 47 lines 33 – 35 testified that when he saw the respondent at Owo, he found him in chains. The truth therefore is that the appellant knew that the respondent did not authorize the sale of the farm neither was there any evidence whatever from which an agency of any kind can be inferred. There was also no fact in the entire case which points to any positive or passive conduct on the part of the respondent that can be construed as holding out Mr. Oni Adegbite to the appellant as his agent. All the submissions of learned counsel for the appellant on estoppel by conduct and the numerous cases cited on the point are therefore irrelevant in this appeal. Since the vendor Oni Adegbite did not have the authority of the respondent to enter into the agreement of 13/1/89, exhibit 7, he cannot in law bind the respondent by his unauthorized contractual act.
The learned trial judge is right in holding that the doctrine “nemo dat quod non habet” applies here. Mr. Oni Adegbite cannot give what he does not have. See Labode v Otubu & Anor (2001) 85 LRCN 771 or (2001) 7 NWLR (Pt 712) 256. See also Odekilekun v. Hassan & Anor. (1997) 12 NWLR (Pt.531). The appellant did not validly purchase the respondent’s cocoa farm because he bought from someone who is not the owner of the property and who had no legal authority to sell the farm. The respondent is consequently still the owner of the farm and the appellant is a trespasser thereon. The learned trial judge in his judgment at page 61 lines 24 – 28 said:-
“I hold that the agreement dated 13th day of January, 1989 made between Mr. Oni Adegbite and the defendant Mr. Tekobo Olora at Owo purportedly selling the plaintiff’s cocoa plantation to the Defendant is null and void the same having been made by Oni Adegbite without legal capacity”.
With respect to the underlined phrase above, learned counsel for the appellant in his brief submitted thus:-
“It is our submission that since the court of law is not a charitable organization and or father Christmas, it has no judicial power to award to a party that which he has not claimed and or than his claim as done to the respondent in this case by the learned trial judge. The above principle of law is enunciated in the recent judgment of the Supreme Court, i.e. A.G, Abia State & 2 Ors v A.G. Fed. & 33 Ors (2006) 7 SC (pt.1) 51 particularly at page 121 where Niki Tobi JSC held as follows: “It is elementary law that a court of law is confined to the reliefs or relief of the plaintiff, it does not go outside the relief or reliefs to grant what the plaintiff does not seek for. A court of law can grant all the reliefs sought by the plaintiff. It con also grant part of the reliefs. But it cannot grant reliefs not sought by the plaintiff…The court is not Father Christmas to dole out gifts not asked for by children. Even father Christmas is generous with his gifts only on Christmas day.” See also Ekpenyong v Nyong (1975) 2 SC 71 at pages 80 – 81
The issues whether Mr. Oni Adegbite has legal capacity or not was not one of the reliefs sought by the respondent in this present case.”
The argument of counsel set out copiously above is with due respect completely unfounded. That Oni Adegbite sold without legal authority is merely the reason why the learned trial judge rightly held the sale null and void. It is the same reason adduced by the respondent in his pleading and oral evidence in praying the court to declare the sale agreement null and void. The live issue here is whether the trial court was right in declaring the agreement null and void and not the reasons for so declaring it. See Omega Bank Plc v O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547 where Niki Tobi observed:-
“…A ground of appeal should complain of the live issues in the matter which will determine the fortunes of the appeal one way or the other. Where grounds of appeal do not properly relate to or fit into the decision of the court, they gallivant on the appeal, thus serving no useful purpose.”
Counsel had also submitted under this issue that another important error of law committed by the lower court in awarding judgment to the respondent and ignoring the unconscionable and inequitable conduct of the respondent in failing to return the N7000 collected from him. Counsel had argued that he who comes to equity must come with clean hands. The quick answer to this submission is that the return of the N7000 did not arise as the demand of the appellant in his counsel’s letter was the refund of N1.5 Million which he claimed he expended in the improvement of the cocoa farm. The respondent had always made it clear that his brother Mr. Oni Adegbite was ready to refund the said sum of N7000. The appellant did not at any point demand the amount and the respondent and his brother refused to return same. Issue 1 is resolved in favour of the respondent.
ISSUE 2
Whether this case is not statute-barred having been filed on 16th November, 2002 by the respondent when the cause of action arose on the 13th of January, 1989?
The contention of the appellant here is that this suit was instituted on the 6th day of November, 2002 while the agreement which the respondent sought to be declared null and void was executed on the 13th day of January, 1989; the action was consequently statute barred, having been instituted 13 years after the cause of action arose. Counsel had submitted that in determining when the cause of action arose, the only document to consider is the writ of summons and the statement of claim. Counsel contended that the claim of the respondent that he was ill and unaware of the existence of the agreement until 1998/1999 when he got healed was a camouflage and a clever device to escape the effect of the action being statute barred. Learned counsel for the appellant set out the evidence of the respondent at the lower court at pages 38 & 39 of the record and submitted that there were contradictions in the evidence as to when his sickness actually started, when the cocoa farm was sold and handed over to the appellant and when he got to know of the transaction. Counsel submitted that the evidence being at variance with his pleadings is worthless and ought not to be believed and acted upon by the lower court.
The law is that where a statute of Limitation prescribes the period within which an action must be brought, legal proceedings cannot be validly instituted outside the prescribed period.
Section 4 of the Limitations Law (Cap 16) Laws of Ondo State 1978 (now Cap 83 Laws of Ondo State in force as at 31st December, 2006) provides:
“4(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:-
(a) Actions founded on simple contract or on tort;
(b) ……………………………
(c) ……………………………
(d) ……………………………
If therefore the respondent’s case was brought outside the requisite limitation period, his action would be statute-barred, notwithstanding that he may have had a good case. Aremo II v. Adekanya (2004) 13 NWLR (Pt.891) 572.; Olagunju & Anor v. Power Holding Co. of Nig Plc (2011) LPELR-SC.140 /2004.
In determining whether or not a case is statute barred, the court is restricted to the writ of summons and statement of claim where the issue is raised in limine by preliminary objection. See Amusan v. Obideyi (2005) 14 NWLR (Pt.945) 322. Where pleadings have been filed and the parties have joined issues as to the date the cause of action arose, the issue must be proved by evidence adduced by the parties in the course of hearing. It is then for the trial court to determine the date on which the cause of action arose based on the evidence adduced by the parties. See Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Savannah Bank of Nig Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Pt.49) 212: Woherem J. P v. Emereuwa & Ors (2004) 13 NWLR (Pt.890)
It is important to state that the law of limitation admits of certain exceptions. Section 3 of the Limitations Law provides:-
“The provisions of this Part of this Law shall have effect subject to the provisions of Part 3 of this Law which provide for the extension of the periods of limitation in the case of disability, acknowledgment, part-payment, fraud and mistake.”
Section 21 of the law provides:-
“If on the date when any right of action accrued for which a period of limitation is prescribed by this Law, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired.”
Aremo v. Adekanya (supra)
In view of the law as stated above, is the respondent’s case statute barred? It is necessary to examine the pleadings and evidence to see whether the exception in Section 21 of the Limitation Law will avail the respondent. The case put forward by the respondent in his statement of claim is that he was mentally sick before the execution of the agreement exhibit 7. He also claimed that he did not fully recover from the mental illness until ten years later. If this is substantiated by oral evidence, then it brings the respondent’s case squarely within the exception stipulated in section 21 of the Limitation Law which means that time will start running from 1998/99 when he said he fully recovered from the mental illness. The two crucial questions to determine here are (1) when exactly did the respondent become ill and (2) when exactly did he fully recover from his illness?
The appellant at page 17 of his brief of argument contended that the respondent’s oral evidence is full of contradictions. The contradictions are:-
1. That he was sick in 1988 contrary to the fact pleaded in paragraph 3 of his statement of claim at page 6 that the sickness began in 1989.
2. That his said cocoa farm was handed over to the Defendant in 1985 January, 13th contrary to the fact pleaded in paragraph 4 of the said statement of claim at the same page 6.
3. That in 1993, the respondent knew that the said cocoa farm had been sold to the appellant and therefore instructed his counsel to write to the appellant to come and collect back his N7,000 from Mr. Oni Adegbite contrary to the fact pleaded in paragraph 6 of the said statement of claim that he got wind of the said sale in 1998/1999.
It is true that in his oral evidence in court, the respondent mixed up the dates and did not state them correctly. The fact that these are errors in recollection of actual dates is supported by the fact that the actual dates were pleaded and supported by documentary evidence. Furthermore, the fact that the respondent was very ill before 1989 when the cocoa farm was sold is not in dispute. The date when the cocoa farm was sold and handed over to the appellant is not in dispute. The actual date the respondent got to know about the unauthorized sale of his cocoa farm is not as important as the actual date his disability ended; that is the actual date he recovered fully from his illness. The respondent also elsewhere in his oral evidence gave the actual dates as pleaded. I shall set out the relevant paragraphs of the statement of claim and the reply to the statement of defence:-
Paragraph 3:
“The plaintiff was sick in 1989 and was confined to his bed as a result of ill-health brought about by the activities of fraudsters who duped him in his cocoa produce business.
Paragraph 4:
“When the plaintiff got completely healed in 1998/99 his attention was drawn to a purported agreement dated the 13th day of January, 1989 between one Mr. Oni Adegbite and the defendant, Mr. Tekobo Olora.
Paragraph 6:
“When the plaintiff got wind of the above agreement in 1998/99, he called his relatives and confronted them with it ….”
Paragraph 9:
“The plaintiff further avers that when all efforts to resolve the matter were thwarted by the defendant he had to engage the services of a lawyer to write the defendant asking him to vacate his cocoa plantation. The letter Ref No CRFB/073/2002 dated 13th July, 2002 written by C. R. Femi Balogun Esquire on behalf of the plaintiff is hereby pleaded for use at the hearing of this suit.
Paragraph 7 of the reply to the statement of defence:
“The plaintiff in reply to paragraph 14, 22 and 23 of the defence state as follows:-
(a) The plaintiff fell sick and was diagnosed of acute schizophrenic illness in the fourth quarter of 1988 and did not become medically okay until the year 1999, eleven years after.
(b) That during the 11 year period, he was being treated both as in-patient and out-patient and at the same time carefully monitored by his medical team.
(c)That throughout the period of his sickness he was not informed neither did he consent or approve of the sale of his farm to anybody.
(d) The defendant did not know his (plaintiff’s) whereabout or where he was being treated, talk less of visiting him.
(e)The plaintiff hereby plead the medical report, cards, receipts and other documents concerning his sickness and treatment and will be relying on same at the hearing of this suit.
The plaintiff gave evidence at pages 37 – 40 of the record of appeal. He testified that in October 1988 he was brought to the Psychiatric Hospital Oda Road, Akure where he was admitted for thirty days and was an out-patient for ten years. He paid for drugs and other medications in the hospital and was issued receipts for the payment. The receipts were admitted in evidence as exhibits 1- 1G and 2 – 2B. He testified that he stopped going to the hospital in 1999. He testified that he learnt about the agreement in 1995 and that he saw the agreement with his sister but that he could not do anything then because he was not physically and mentally well until 1998. It is consequently clear from the pleadings and evidence led by the respondent that answers to the two questions were provided notwithstanding the mix up in dates in some areas. From the evidence, the respondent became ill in October 1988. The parties are ad idem that at the time the agreement Exhibit 7 was signed, the respondent was mentally ill and not in a position to consent to or authorize the sale of his property. Therefore although the cause of action arose in January 1989 when exhibit 7 was executed, time did not begin to run because of the provision in Section 21 of the Limitation Law. The respondent was under a disability as at the date the cause of action accrued. His action can be brought six years from the date he ceases to be under the disability. His evidence is that he fully recovered in 1998. The appellant denied this and claimed that the respondent was sick for only six months. At page 48 lines 33 – 37 of the record of appeal, the appellant testified as follows:-
“The plaintiff was treated at Koseunti Church, Akure. I was not visiting him there. I was visiting him when he was still at Owo. When he was taken to Koseunti I did not visit him. I did not know what caused his sickness. I was seeing him in town. It is not true that he was sick until 1999. He was sick for only six months. He came to thank me when he recovered.”
This evidence of the appellant was given during cross-examination and was not pleaded. The law is settled that unpleaded facts elicited in cross-examination go to no issue. Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt.1079) 172 @ 196 C-G. PP 212 – 213 F-A. Further, the evidence given by the appellant contradicted his pleading in paragraph 14 of his statement of defence at page 10 lines 21 – 24 of the record:
“In further denial of paragraph (4) of the plaintiff’s statement of claim the defendant states that the plaintiff recovered within six months of the purchase of the said cocoa farm because he was visiting him regularly to monitor his condition.” (Underlining mine for emphasis)
In his evidence set out above, the appellant said he only visited the respondent in Owo and not when he was taken to Akure. There is no pleading by either of the parties that the respondent was ever treated at Owo. The appellant’s evidence that he visited the respondent at Owo cannot therefore be true. Further, PW1, the respondent’s wife testified at page 41 line 25 that she was close to her husband and that the defendant did not visit her husband at any time when he was sick and when he came home on his recovery. PW1 was not cross-examined by the appellant on this important issue. It puts a lie to his claim that he visited the respondent when he was sick and that he was sick for only six months. The appellant consequently did not adduce any convincing evidence to back his contention that the respondent was sick for only six months. The respondent on the other hand, in addition to his oral evidence tendered hospital cards and receipts for the purchase of drugs confirming that up to 1998/99 he was still receiving treatment at the Psychiatric Hospital Akure. No weight can be attached to the medical report, exhibit 3 obtained during the pendency of the suit. Outside exhibit 3, the respondent adduced evidence on a balance of probability, (given that there is nothing on the other side of the scale) that his disability came to an end in 1998/99 when he stopped going to the hospital for treatment. The six year period of limitation will therefore begin to run from 1998. The writ was taken out in 2002. The respondent’s action was therefore not statute barred. This issue is resolved in favour of the respondent.
ISSUE 3
Whether exhibit 3, i.e. the medical report on the sickness of the respondent dated 24/6/2003 is legally admissible by the lower court in view of the provisions of Section 91(i) (ii) (b), (2) & (3) of the Evidence Act Cap 112 Laws of the Federation 1990? (Ground 7).
Exhibit 3 is a medical report from Hospital’s Management Board Akure, Ondo State. The report was signed by one Dr. Ilori V. A. for the Consulting Psychiatrist. The report is dated 24/6/03. Learned counsel for the appellant challenged the admissibility of the exhibit by the lower court on the ground that it was obtained during the pendency of the suit in flagrant disregard of the provisions of Section 91 of the Evidence Act. Further that the document being a public document, only a certified true copy of it would have been admissible under Section 111(1) and 112 of the Evidence Act. Counsel urged the court to expunge exhibit 3 and hold that the respondent’s case thereby collapses with no option than outright dismissal for lacking in merit.
Learned Counsel is correct that exhibit 3 was obtained during the pendency of the suit. He is also correct that being a public document only a certified true copy is admissible in evidence. I hold therefore that the document was wrongfully admitted in evidence by the lower court. I am however of the firm view that the wrongful admission of the exhibit did not vitiate from the judgment of the lower court. As I already held under issue 2 above, there is sufficient oral and documentary evidence outside exhibit 3 to support the finding that the respondent was sick between 1988 and 1999. No useful purpose will be served by reproducing the evidence again. Suffice it to say that the evidence of the respondent backed by exhibits 1 – 1G and 2 – 2B as regards the period of his illness was corroborated by the evidence of PW2 and PW3 at pages 42 line 8 and 44 lines 33-35.
ISSUE 4
Having regard to the pleadings, the evidence led in support and documents tendered from the record, whether or not the lower court was right in granting legs 1 and 2 of the reliefs sought by the respondents.
On this issue, the appellant adopted his submissions on issues 1 & 2. Counsel further expressed in very strong terms his disagreement with the findings of the trial judge at page 61 lines 4-13 of the record:-
“The defendant said that he is ready to release the property to the plaintiff provided he is paid N7.5 Million Naira. This is in conformity with the contents of exhibit 5. To me this shows that the defendant is not insisting on the sale of the disputed property per se but on retrieving his development of the property. It is my view which accords with equity and common sense that if he believes ob initio that he purchased the property he would have insisted on his legal position. Giving a conditional release of the property presupposes that he is seeking equity as against law.”
Counsel submitted that the fact of the appellant demanding the sum of N1.5M as a condition for returning the property to the respondent was contained in his lawyer’s letter; exhibit 5. He claimed it was not part of the pleadings by any of the parties. Counsel contended that it was erroneous of the learned trial judge to have drawn the above quoted inference from the matter. Learned counsel referred to many authorities including Adeniji v. Adeniji (1992) 4 SC 10 and submitted that the learned trial judge left the area pleaded by the parties and set about making a case different from the evidence before it and proceeded to give a decision based on the case it formulated. Counsel further argued that the learned judge fell into many errors amongst which are the fact that the respondent pleaded that his sickness started in 1989 but gave evidence that it started in 1988 and the fact that the respondent pleaded that he got wind of the sale of his cocoa farm to the appellant in 1999 but at the trial said it was in 1993 he was informed of the sale by the appellant. Counsel submitted that despite all these contradictions, the trial judge still went ahead to give judgment to the respondent. Counsel also submitted that if the learned trial judge had properly evaluated the oral evidence led by the respondent, the fundamental issue in the case as to whether the cocoa farm was leased to the appellant for a specific number of years or was an outright sale would have been resolved in the appellant’s favour. Counsel submitted that the judgment is further vitiated by the error/omission of the learned judge to make specific findings on the issue of whether or not the case was statute barred. Counsel urged the court not to send the case back for retrial should it be minded to set aside the judgment of the lower court but on the basis of section 16 of the Court of Appeal Act to do the necessary evaluation and give appropriate judgment to the deserving party. He called in aid the cases of Akibu v Opaleye (1994) All NLR (Pt 2) 344 @ 356 and Awoyale v. Ogunbiyi (1986) NWLR (Pt.24) 626 @ 634. Counsel finally urged us to allow the appeal, set aside the judgment of the lower court and dismiss the respondent’s claims in its entirety.
Most of the points raised herein have been dealt with and resolved under issues 1, 2 & 3 above. As regards the observation of the trial judge on the appellant’s offer of N1.5M, I do not think the observation can be classified as a finding of fact. The matter commented on was evidence properly brought before the court in exhibit 5. The letters were written. The offer was made by the appellant. He did not deny making the offer. His point was that he did not plead it and did not counter claim for the sum of N1.5 Million in the case. The comment was not the basis for the judgment of the court. The law is that comments by a judge are not the same as findings of facts on issues. In the course of writing a judgment, a judge is bound to air his views and make comments here and there and may also give reasons for certain findings. The concern of an appellate court is to determine whether the decision of the trial court is right and not whether the reasons for the decision are right. See Nkado v Obiano (1997) 5 NWLR (Pt.503) 31 @ 56 F; Nwankwo v. E.D.C.S.U.A. (2007) 5 NWLR (Pt.1027) 377. With all due respect to learned counsel, there is no substance in this complaint. The substance of the judgment of the lower court is that the vendor had no authority to sell to the appellant property belonging to the respondent without the consent of the respondent. The fact that the appellant demanded N1.5 Million in exhibit 5 in return for the property was not in dispute but it has no bearing whatsoever to the substance of the case. The case of Adeniji v. Adeniji (supra) referred to by counsel to the appellant is not relevant because the matter of the N1.5M did arise from the pleadings. For example in paragraph 10 of the statement of claim, page 6 of the record, the plaintiff pleaded thus:
“The defendant in his reply, apart from justifying the agreement, directed the plaintiff to pay the sum of N1.5 Million he had spent on the farm.”
The appellant in his statement of defence admitted the averment above. The letter was admitted in evidence as exhibit 5 and the appellant even under cross-examination at page 48 of the record admitted demanding N1.5 Million because he had developed the farm and planted cocoa and oranges on the land and at page 49 stated again that he is ready to release the land if the plaintiff is ready to pay him N1.5 Million. It is indeed difficult to see what the grouse of the appellant regarding the observation of the learned trial judge is all about. It is my humble view that there is no substance to it.
On the alleged contradictions in the evidence of the respondent and his pleadings, there is nothing to it. The respondent had filed a reply to the appellant’s statement of defence. In paragraph 7 of the reply he pleaded:-
“7. The plaintiff in reply to paragraphs 14, 22 and 23 of the defence state as follows:-
(a) The plaintiff fell sick and was diagnosed of acute schizophrenic illness in the fourth quarter of 1988 and did not become medically okay until the year 1999, eleven years after.”
The respondent’s oral evidence in court was in tandem with the pleading above and it was corroborated by the evidence of his witnesses PW2 and PW3. At page 41, line 14 PW2 testified that her husband fell ill in 1988 and was ill for ten years. PW3 Michael Oni Adegbite (wrongly designated PW2) at page 42, line 15 testified that the respondent fell ill in 1988. None of the witnesses was cross-examined on the point and as I had earlier stated, the date respondent fell ill is not in dispute as all the parties are agreed that as at the time the agreement of sale was executed in January 1989, the respondent was mentally sick.
Learned counsel also complained about inconsistency in the oral evidence of the respondent as to the date he became aware of the purported sale of his cocoa farm and his pleading. His pleading is to the effect that he became aware of the sale agreement in 1998/99 when he got completely healed. Although the respondent in his oral evidence mentioned 1993 and 1995 respectively as the dates he was informed by the defendant of the sale or his attention was called to the agreement, these as I said earlier are mix-up in dates which are not material because the period of awareness of the transaction has nothing to do with the period when the cause of action arose as the cause of action by virtue of Section 21 of the Limitation law will commence from when the respondent’s disability ceased and this is when he became completely healed. On this point the oral evidence of the respondent and his witnesses tally with the pleading above.
On the complaint that the learned trial judge failed to properly evaluate the evidence of the respondent on the matter of whether the said cocoa farm was leased to the appellant for a specific number of years or an outright sale, with all due respect, counsel misconceived the actual case of the respondent. The respondent wanted the court to pronounce on the validity of the agreement of 13th January, 1989 and not to determine the nature and purport of the agreement. At any rate it is my view that the learned trial judge did determine the nature of the agreement in his judgment at page 59 lines 17-23 when he observed:-
“…DW2 who is the legal practitioner that prepared exhibit 7 S. G. Owojori Esq is the only independent witness in this case. His evidence that he interviewed PW1 and PW2, (sic PW2 & PW3) visited the farm to confirm boundaries look credible, and I am inclined to accept it as true. In the circumstances without much ado I hold that he explained to them the contents of exhibit 7 before it was executed.”
By this holding the learned trial judge meant that the sale agreement is exactly what the document itself says it is – an outright sale of the cocoa farm to the appellant and not a pledge for a number of years as claimed by PW2 and PW3 who executed the document.
On the failure of the trial Judge to pronounce on whether or not the case was statute-barred, I concede that it was indeed an omission on the part of the trial judge. But the fact that the learned judge went ahead to entertain the case and enter judgment for the respondent meant that he did not consider the case statute barred. Further the decision of the learned judge cannot be set aside on the ground of his failure to consider the issue unless there has been a substantial miscarriage of justice thereby. See Ojoh v. Kamalu [2005] 18 NWLR (Pt.958] 523 @ 557 A – C. However, pursuant to Section 15 of the Court of Appeal Act 2004 this court has the jurisdiction to pronounce on the issue since all the necessary facts are available in the record of proceedings. The matter has already been determined under issue 2 in this judgment. I am of the view that the learned trial judge did evaluate and ascribe probative value to the evidence adduced by the parties before arriving at his decision in the case. Issue 4 is determined in favour of the respondent.
In conclusion, having resolved nearly all the issues herein in favour of the respondent, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of Kumuyi J. of Ondo State High Court sitting at Owo in Suit No HOW/20/2007 delivered on the 27th day of July, 2004 is hereby upheld. As the respondent was not represented, I make no order as to costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had a preview of the judgment of my learned brother, C. E. Iyizoba, JCA just delivered. I agree entirely with His Lordship’s reasoning and conclusion that there is no merit in this appeal and it ought to be dismissed. The respondent’s brother, Mr. Oni Adegbite with the connivance of his wife and sister clearly took advantage of the period of his mental illness to dispose of his property without his authority. The age-long principle of law enshrined in the maxim nemo dat quod non habet (you cannot give what you do not own) applies to the facts of this case. Mr. Oni Adegbite had no right or authority to sell the respondent’s cocoa farm. The respondent repudiated the sale as soon as he was well enough to do so. I also agree with my learned brother that having regard to the period of the respondent’s mental illness, which spanned a period of about ten years, which was convincingly established at the trial, his case fell within the exception provided in Section 21 of the Limitation Law Cap. 16 Laws of Ondo State 1978 and was therefore not statute barred. I also dismiss the appeal and abide by the order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA. His Lordship has meticulously analysed and ably resolved all the issues in this appeal.
I have nothing to add to the reasoning and conclusion of my learned brother, save to say that I too dismiss the appeal and affirm the judgment of Kumuyi, J. (as he then was, now C. J.) in Suit No. HOW/20/2007 delivered on the 27th day of July, 2004.
I also make no order for costs.
Appearances
Kola Olawoye Esq with J. A. Omtoso Esq. and F. O. BolanleFor Appellant
AND
For Respondent
