MRS. CHIAGONI OGBOGOH v. FANYALI & COMPANY NIGERIA LIMITED
(2018)LCN/12330(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of December, 2018
CA/A/314/2015
RATIO
CRIMINAL LAW: OFFENCE OF FORGERY
“The position of the law is that forgery as an offence must be proved beyond reasonable doubt. In the offence of forgery, the prosecution must prove that the document is a forgery and that it was forged by the accused. See Pam v. Mohammed (2008) 16 NWLR (Pt.1112) 1 at 92, Paras. G-H, Aina V. Jinadu (1992) 4 NWLR (Pt. 233) 91 and Domingo v. Queen (1963) SCNLR 146. The standard of proof of allegation of crime in a civil proceeding is also proof beyond reasonable doubt. In Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 352) L24 at 153, Paras. D.G, the Supreme Court held: ‘The settled principle of law is that where crime is alleged in a civil proceeding, proof must be beyond reasonable doubt. See Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417, Ezeonwu v. Onyechi (1996) 3 NWLR (PT. 438) 499…'”PER TINUADE AKOMOLAFE-WILSON, J.C.A.
COURT AND PROCEDURE: WHETHER CROSS-EXAMINATION IS NECESSARY
“It is submitted that the law is settled that where a witness testifies on a material point, the adverse party ought to cross examine him or show that his testimony is untrue and where this is not done, the Court would readily conclude that the adverse party does not dispute the fact. He cited Asafa Food Factory V. Alraine (Nig.) Ltd. (2002) 12 NWLR (Pt.781) 353 at 375, Para. C.” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
DAMAGES: SPECIAL DAMAGES
“The law is settled that in order to succeed in a claim of special damages, the plaintiff must specifically plead each of the items of the special damages he claims and must also strictly prove each of the said items to the satisfaction of the Court, as the Court is not entitled to make its own estimate of same. Special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence and without such proof, no special damages can be awarded. SeeTaylor V. Ogheneovo (2012) 13 NWLR (Pt.1316) 46 at 61, Para. C, M.M.A. Inc. V. N.M.A.(2013) 18 NWLR (Pt.1339) 506, Ahmed V. C.B.N. (2013) 2 NWLR (Pt.1339) 524 and Abi v. C.B.N (2012)3 NWLR (Pt.1286)1.” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“Generally, evaluation of evidence and finding of facts is the primary function of a trial judge. It is only where a trial Court fails to evaluate the evidence adduced before it that an appellate Court can intervene. See Momoh V. Umoru (2011) 15 NWLR (Pt. 1270) 217 Odutola V. Mabogunje (2013) 7 NWLR (Pt. 1354) 522, Obioha V. Akukwe (2005) 5 NWLR (Pt.658) 705 and Otito V. Odidi (2011) 7 NWLR (Pt.1245) 108. However, where a trial Court has properly analyzed the documents tendered and made appropriate findings on them, the appellate Court will not disturb the findings of the trial Court on the documents.” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
PLEADINGS: GENERAL TRAVERSE
“The law is trite that a general traverse is not enough to controvert material and important averments in pleadings. A fact not specifically denied is deemed admitted. See A.TE Co. Ltd v. Mil Gov, Ogun State (2009) LPELR – 554 (SC) P.33, Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.” PER TINUADE AKOMOLAFE-WILSON, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
MRS. CHIAGONI OGBOGOH Appellant(s)
AND
FANYALI & CO. (NIG) LIMITED Respondent(s)
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja delivered by his Lordship Hon. Justice Chizoba N. Oji on the 24th April, 2015 wherein the learned trial judge granted the plaintiff/respondent’s claims and dismissed the counter claim of the defendant/appellant.
The brief facts of the case are that the plaintiff/respondent is a limited liability company registered under the relevant laws in Nigeria while the defendant/appellant is a director in the plaintiff’s company and wife of Engr. Fidelis Iweanya Ogbogoh, the Chairman and managing director of the plaintiff’s company.
The subject matter of the suit is the property lying and situates at No. 5 Ali Baba Crescent, Jabi also known as plot 166 Jabi District Abuja. The respondent contends that it acquired the property in 2001 and that title and ownership has always remained with it whereas the appellant insists that the said property was transferred to her by the plaintiff in 2002 by virtue of which she is now the owner and title holder of the property.
Following this disagreement, the plaintiff on 22nd February, 2011 filed an action against the defendant. By its further amended statement of claim filed on 20th March, 2013, the plaintiff/respondent claimed against the defendant/appellant the following:
1) A declaration that the plaintiff is the rightful owner of the property lying and situate at No. 5 Ali Baba crescent, Jabi, also known as plot 166 Jabi District, Abuja.
2) A declaration that the irrevocable power of attorney and deed of assignment both dated 10th January, 2002 by which the plaintiff purported to transfer the sole ownership of its property lying and situated at No. 5 Ali Baba Crescent Jabi also known as Plot 166 Jabi District, Abuja are invalid.
3. A declaration that the certificate of occupancy dated 11th November, 2005 issued by the Minister of the Federal Capital Territory, Abuja to the defendant showing that she is the owner of the plaintiff’s property lying and situated at No. 5 Ali Baba Crescent Jabi, also known as Plot 166 Jabi District, Abuja is invalid.
4. The sum of N160,000,000.00 (One Hundred and Sixty Million) only being the amount of rent collected by the defendant from the tenants in the plaintiff’s property lying and situate at No. 5 Ali Baba Crescent, Jabi also known as Plot 166 Jabi District, Abuja from 2004 – 2012 which is a block of 12 flats with 10 of the flats Being 2bedroom flats each at 1,300,000.00 (One Million, Three Hundred Thousand Naira) and 2 of the other flats Being 3 bedroom flats each at 1,500,000.00 (One Million, Five Hundred Thousand Naira) only per flat per annum.
5. An order of perpetual injunction restraining the defendant from further managing or collecting rents from the tenants living in the plaintiff’s property lying and situate at No. 5 Ali Baba Crescent, Jabi also known as Plot 166 Jabi District, Abuja.
6. An order of perpetual injunction restraining the defendant from further trespassing into or interfering with the plaintiff’s possession and ownership of the property lying and situate at No.5 Ali Baba Crescent, Jabi District, also known as Plot 166 Jabi District, Abuja.
7. General damages of N2,000,000.00 (Two million Naira) only.
8. Cost of filing and prosecuting this suit.
The defendant/appellant filed a statement of defence and counter claim seeking the following reliefs:
1) “A declaration that the defendant/counter-claimant is the rightful owner of the property situate and known as No. 5, Plot 166, Ali Baba Crescent, Jabi District, Abuja by virtue of the re-certified certificate of Occupancy No. 456 uw- fe66z-6599r-d336u-10dated 11th November, issued by the Federal Republic of Nigeria.
2) A declaration that the defendant/counter-claimant is entitled to both title and possession of the property situate at No. 5, plot 166 Ali Baba Crescent, Jabi District, Abuja, including a right to expel trespassers from the said property.
3) A declaration that the plaintiff’s activities in the premises by harassing the tenants resident in the premises, obstructing their ingress and egress, directing them to desist from paying their due rent to the defendant, pasting scandalous notices on the walls of the premises amounts to trespass.
4. The sum of N10,000,000 as damages for trespass.
5. An order of perpetual injunction restraining the plaintiff/defendant to counter-claim, its agents, privies, assigns, personal representative or otherwise howsoever called, from entering into the property and from further acts of trespass by interfering with, obstructing and/or disturbing in any way or manner, the defendant/counter claimant’s exercise of her lawful rights to an exclusive occupancy and use of the property in issue and/or in any way or manner, threatening, intimidating and harassing the defendant/counter claimant’s tenants on the property and their rights of ingress and egress.
The plaintiff/respondent filed a reply to the statement of defence and defence to counter claim. In proof of its case and defence to counter claim, the respondent called four witnesses and tendered nine (9) documents while the appellant testified alone in her defence and proof of her counter claim in which she tendered thirteen (13) exhibits. Under cross-examination of the appellant, three (3) documents were tendered.
At the conclusion of trial, the Court delivered judgment in favour of the respondent against the appellant and the counter claim was dismissed.
The appellant being dissatisfied with the judgment of the trial Court filed an amended notice of appeal containing nine (9) grounds of appeal.
In accordance with the Rules of this Court, the parties filed their briefs of argument.
The appellant in his brief dated 18/1/2016 and filed on 9/2/2016 by Omachi A. Daniel Esq., formulated nine (9) issues for determination as follows:
1. Whether the plaintiff/respondent has proved the allegation of forgery against the defendant/appellant beyond reasonable doubt (Ground 1).
2. Whether perpetual injunction can be granted against the defendant/appellant when the owner of the absolute interest, Federal Capital Development Authority was not a party to the suit at the lower Court. (Ground 2)
3. Whether the trial Court can rely on the evidence of PW1 which has been expunged from the record of the Court give verdict against the appellant (Ground 3).
4. Whether from the evidence adduced before the trial Court the certificate of Occupancy No. 456uw-Fe66z-6599r- d336u-10 issued by Honourable Minister, FCT Abuja to the Appellant is valid (Ground 4).
5.whether the trial Court properly evaluated the evidence of PW1 before giving judgment (Ground 5)
6. Whether the trial Court was right in granting an order of declaration to title to plot 166, Jabi District, Abuja in favour of the plaintiff (Ground 6).
7. Whether the respondent’s witness, PW1 can give evidence of the signature signed by PW4 (his father) (Ground 7).
8. Whether the lower Court was right when it held that Exhibit D1 was made in anticipation of proceedings or during the pendency of proceedings. (Ground 8)
9. Whether the plaintiff/respondent has proved its special damages before the trial Court awarded a whopping sum of One Hundred and Sixty Million Naira (160,000,000.00) against the defendant/appellant (Ground 9).
The respondent by its counsel Olusegun O. Jolaawo Esq., in its brief of argument dated and filed on 26/4/2016 formulated four (4) issues for determination namely:
1. Whether having regard to the pleadings of the parties and evidence adduced in the case, the trial Court was right when it held that the appellant failed to prove that the respondent sold the property to her and that on the preponderance of evidence, the respondent is the lawful owner of the property. (Grounds 1, 4, 5, 6, 7& 8)
2. Whether the trial Court was right when it issued an order of perpetual injunction against the appellant whereas the minister of the Federal Capital Territory Abuja who is the absolute owner of the property was not a party in the suit at the trial court.
3. Whether the trial Court was right when it placed reliance on the evidence elicited from PW1 by the appellant under cross examination after it had expunged his (PW1’s) statement on oath from the record of the Court. (Ground 3)
4. Whether the trial Court was right when it awarded special damages of one hundred and Sixty Million Naira (160,000,000.00) against the appellant (Ground 9).
The Appellant also filed Appellant’s Reply Brief. The issues formulated by both counsels are similar. However, I adopt the issues as framed by the respondent as the real issues for consideration in this appeal. I will take issues 1 and 3 together.
ISSUE ONE
1. Whether having regard to the pleadings of the parties and evidence adduced in the case, the trial Court was right when it held that the appellant failed to prove that the respondent sold the property to her and that on the preponderance of evidence, the respondent is the lawful owner of the property. (Grounds 1, 4, 5, 6, 7& 8).
Learned counsel for the appellant submitted that the burden of proving allegation of crime is on the person who asserts it and does not shift. He referred toAlmu v. State (2009)10 NWLR (Pt.1148) 31 at 58 paras. E-F and Section 135 (2) of the Evidence Act, 2011. He submitted that allegation of forgery and fraud being criminal in nature requires proof beyond reasonable doubt by the party so alleging in civil suit and fraud must be strictly pleaded. He relied on ACN V. Lamido (2012)8 NWLR (PT.1303) 560 at 591, Paras. E-F and Arije V. Arije (2011) 13 NWLR (pt. 1264) 265 at 287, Para.G.
He submitted that in the instant case, the onus is on the plaintiff/respondent to prove that the defendant/appellant forged Exhibits D1, D2, D3 and D9 or any other documents alleged to have been forged as it is the respondent that will fail if no evidence is adduced on both sides. He noted that the respondent called four (4) witnesses with a view to proving the allegation of forgery of signatures on the instruments of transfer of the property (the subject matter of this suit).
It is submitted that the evidence of PW1 that the appellant forged his signature since 2002 ought not to have been given any probative value as PW1’s evidence on the said signature on Exhibits D2, D3 and D9 amounted to hearsay. He referred to Pages 250 Volume I of the Record of Appeal and Pages 613, 614, 615, 617 and 651 Volume II of the Record of Appeal. He submitted that the trial Court ought not to have attached any probative value to the evidence of PW1 who said that it was PW4 (PW1’s father) who told him that his signature was forged.
Learned counsel for the appellant submitted that the trial Court erred by acting on the evidence that was not before it. He noted that the totality of the evidence of PW1 which the trial court anchored its judgment was no longer before it as same was expunged from the Court’s record. Learned counsel submitted that it is trite that the Court of law cannot act on a document which has been expunged from its record, citing in support the case of B. Manfag. (Nig) Ltd. V. M/S O.I. Ltd (2007) 14 NWLR (Pt.1053) 109 at 151 Paras. F-H.
It is submitted that the evidence of PW2 that he was deceived into signing the document of transfer (Irrevocable Power of Attorney) of the property in dispute is untenable as he also admitted that before signing the document, he informed PW4 that he was going to sign the document as a witness and PW4 did not object to it. He submitted that PW2 is not a witness of truth and urged the Court to discountenance his testimonies. He referred to Pages 258 and 259, Volume I of the Record of Appeal and pages 619 and 623, Volume II of the Record of Appeal. He submitted that a cursory look at Exhibit D9, (Deed of Assignment) particularly the last page will show that PW2 witnessed for the appellant and not respondent as stated in his evidence.
Learned counsel submitted that the appellant stated categorically that the only document she signed which she submitted at AGIS for re-certification is Exhibit D2 and D9 and not Exhibit P8 (purported torn Power of Attorney). He submitted that the evidence of PW2 is full of contradictions and inconsistencies and therefore the trial Court ought to have regarded him as an unreliable witness. He urged the Court to treat PW2 and PW4’s testimonies as unreliable and resolve the inconsistencies and contradictions in favour of the appellant. He referred to pages 243, volume 1 of the Record of Appeal. He cited Bassey V. State (2012) 12 NWLR (Pt. 1314)209 at 233, Paras. F-H, 234, Paras C-E.
It is submitted that the respondent did not discredit the evidence of DW1 as regards the authenticity of Exhibit D1 (resolution of the respondent transferring plot 166, Jabi, Abuja to the appellant) which was signed by PW3 and PW4. He referred to page 304, volume 1, paragraph 4, and 661, Volume II of the record of appeal. He submitted that the findings of the trial judge that the appellant waited till the respondent’s witnesses (PW1, PW2, PW3 and PW14) left to produce Exhibit D1 (plaintiff/respondent?s resolution) in Court during the testimony of the defendant/appellant and thereby drawing the conclusion that Exhibit D1 was forged by the appellant was not supported by any known principles of law. He referred to Page 40 of the supplementary record of appeal. He urged the honourable Court to discountenance the findings of trial Court that the appellant forged Exhibit D1 based on its comparison of PW2 and PW4’s signatures in their witness statement on oath with Exhibit D1.
It is submitted that the appellant’s testimonies, both oral and documentary are consistent on the issue of PW4 having different/several signatures and used these signatures to sign for Emeka Ogbogoh.
It is submitted that the fact that PW2 (plaintiff’s agent) signed as a witness for the appellant shows that Exhibit D9 and D2 (Deed of Assignment and Power of Attorney) are valid documents. He referred to Pages 270-272, 314-3161 317-320, Volume 1 of the Record of Appeal.
Learned counsel submitted that the evidence of PW2 and PW4 apart from the facts that they are self-contradictory, they also contradict the evidence of PW1 which confirmed that the original title documents were handed over or given to the Appellant for recertification at the Abuja Geographic Information Systems (AGIS). He referred to Pages 243, Paragraphs 37, 255, paragraphs 24 and 259, paragraph 14, Volume 1 of the Record of Appeal.
Learned counsel for the appellant submitted that both appellant and respondent admitted in their evidence and pleadings that the land in dispute that is plot 166, Jabi District, Abuja was purchased by the plaintiff from Christiana Amashe Asanga in 2001. He further submitted that the appellant gave evidence both oral and documentary in proof of her title to the subject matter wherein she testified that the land in dispute was assigned to her in 2002 vide the resolution of the respondent’s board of directors (Exhibit D1) for a valuable consideration.
He noted that the respondent also donated an Irrevocable power of Attorney to the appellant (Exhibit D2), applied for and obtained requisite consent to assign the property to the appellant (Exhibit D3). He emphasized that the respondent executed a Deed of Assignment with the appellant and both documents were registered at the Land Registry, Abuja.
It is submitted for the appellant that the Certificate of Occupancy dated 11th November, 2005 issued by the Honourable Minister, Federal Capital Territory (FCT) Abuja is devoid of any defect and as such valid in law. He relied on Usman V. JODA (1998) 13 NWLR (Pt.582) 374 at 388, Paras. A-B.
It is the contention of learned counsel for the appellant that the trial Court ought not to have made an order of declaration of title to the land in dispute in favour of the respondent as the respondent did not claim an order of declaration that it was entitled to a Right or Certificate of Occupancy over the subject matter in dispute. He argued that there was no evidence before the trial Court that the respondent was issued any Certificate or Right of Occupancy by the Honourable Minister of the FCT, Abuja. He submitted that the failure of the respondent to produce the Power of Attorney dated 23rd June, 2005 and the Deed of Assignment dated 24th April, 2001 is fatal to the respondent’s case at the trial Court as it robbed it of the locus to institute the suit against the appellant in the first place. The Court, he argued, will not therefore allow oral evidence of documents pleaded without tendering same. He placed reliance on the cases of Abubakar V. Waziri (2008) 14 NWLR (Pt.1108) 507 and Ofomaja v. Commissioner for Education (1995) 8 NWLR (Pt.411) 69 at 85, Paras. B-C.
Responding to issue one, learned counsel for the respondent submitted that the only issue in controversy in this appeal is whether or not the respondent sold its property to the appellant and any other issue is ancillary. He submitted that it is the state of the pleadings that determines where and on whom the burden of proof lies generally and the onus of proof of particular issues. He referred to Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282, Para. A. Learned counsel referred to Pages 467-468 Vol.1 of the
Record of Appeal at Paragraphs 46-47 (2nd further Amended Statement of Claim) and Paragraphs 5, 6, 20 & 26 of the appellant’s statement of defence in relation to the said disputed issue.
It is submitted that paragraphs 46 and 47 of the respondent’s pleadings are denials of any sale of its property to the appellant whereas the appellant pleaded that she is the rightful owner of the same property having been assigned to her by the respondent for a valuable consideration after a resolution of the respondent’s directors and shareholders. He therefore submitted that having asserted the affirmative of the issue, the burden is on the appellant to prove the alleged sale. He relied on Section 131 (1) and 132 of the Evidence Act and the case of Aromolaran v. Kupoluyi (1994) 2 NWLR (Pt. 325) 221 at 248, paras B-D, Iroagbara v. Ufomadu (2009) 11 NWLR (Pt.1153) 587 at 599, para Obawole v. Coker (1994) 5 NWLR (Pt.345)416 at 429, Paras. D-E and others to support his position.
He submitted that the only way the purported sale of the respondent’s property to the appellant (assuming that the instruments evidencing same are valid) can stand is if the appellant successfully proves that there was a general meeting of the respondent company in which a resolution of its directors and shareholders to assign the property to her was passed before the transaction or even if there was no general meeting, there was a written resolution to sell the property to her which was signed by all the members of the respondent company entitled to attend and vote at its general meeting in line with the provision of Section 234 of the Companies and Allied Matters Act (CAMA). He submitted that the appellant’s inability to prove any of the above will nullify Exhibit D1 and the purported transaction in which the property was assigned to her which the trial Court rightly so held.
It is contended by learned counsel that both PW3 and PW4 in their evidence in chief categorically stated that there was no resolution of the directors of the respondent company to sell its property to the appellant. He referred to Paragraphs 28 and 44 of their Statement on Oath respectively at Pages 245 and 256 of Vol. 1 of the Record of Appeal.
It is noted by learned counsel that the appellant failed to produce Exhibit D1 when she took three different dates to cross examine both PW3 and PW4 to confront them with their purported signatures and names on the said Exhibit D1 in order to contradict them since they had testified on oath that there was no resolution of the respondent company to sell the property to her.
Learned counsel emphasized that the appellant failed to front load the said Exhibit D1 when she filed her statement of defence and counter claim for the respondent to have notice that she was going to rely on the document. He noted that it was only during the appellant’s examination in chief that Exhibit D1 was produced for the first time in the proceedings. He contended that the said document was not in existence at the time the statement of defence and counter claim were filed.
It is submitted that the appellant from her cross examination of PW1 and PW3 at the trial Court showed that both of them were not in the country on January 8, 2002 when Exhibit D1 was purportedly made and could therefore not have participated in the purported meeting in which the resolution in the said Exhibit was allegedly passed. He referred to pages 612-613, 629-631 of Vol.II of the Record of Appeal.
He contended that there is absolutely no shred of evidence before the Court that the said meeting of January 8, 2012 as per Exhibit D1 ever took place.
He submitted that the testimony of the appellant under cross examination that PW4 passed the resolution (Exhibit D1), filed it at CAC and gave it to her confirms the obvious fact that the said document was prepared by the appellant and no other person. He contended that an examination of Exhibit D1 will confirm that while it was purportedly prepared on January 8, 2002, it was not filed and verified at CAC until July 10, 2012 after this suit has been instituted, contending that the said Exhibit D1 was prepared and filed by the appellant during the pendency of this case at the trial Court. To substantiate this point, he noted that this suit was filed at the trial Court on 22nd February, 2011. (Pages 1-7 of Vol.1 of the Record of Appeal); while the appellant’s statement of defence was filed on June 14, 2012; and all these were before Exhibit D1 was ever filed at CAC (Pages 290-424 of Vol, 1 of the Record of Appeal).
Learned counsel for the respondent submitted that the appellant’s invitation to this Court to compare Exhibit D1 with a certain special resolution dated 29 March, 2011 which was neither in issue nor tendered in evidence in this case negates the Rules of the law of evidence.
He argued that there was no comparison of both exhibits in open Court neither were the signatures in the said resolution of 29 March, 2011 proved or admitted in open Court to be that of PW3 and PW4. He cited Section 101 (1) of the Evidence Act and the case ofYongo v. C.O.P. (1992) 8 NWLR (Pt. 257) 36 at 57, Paras. B-C, Duriminaya V. C.O.P. (1961) NNLR 70, Ndoma-Egba V. A.C.B Plc (Supra) at 106, Paras. E-F and Ucha v Elechi (2012) 13 NWLR (Pt.1317) 330 at 367 – 368, Paras. H-A.
It is submitted for the respondent that PW4 testified that when he saw Exhibits D2, D3 and D9 for the first time, he was stunned and had to put a call to PW1 to ascertain whether he knew anything about the documents and whether he signed same whereof PW1 informed him that he has never spoken to the appellant and he neither signed nor authorized anybody to sign documents. He referred to Paragraphs 22 & 23 of PW4’s statement on oath at page 241 of Vol. 1 of the Record of Appeal.
As regards Exhibit P8 (Irrevocable Power of Attorney dated 10th January, 2002) learned counsel submitted that the appellant denied signing the signature on Exhibit P8 even when she was confronted with her signatures in Exhibit D2 and D9. He referred to the holding of the trial Court at Page 50 of the supplementary Record of Appeal.
Learned counsel submitted that while the appellant claims in the instant suit that the respondent on 10th January, 2002 assigned the property to her after a resolution of its directors was passed on 8th January, 2002, she took a completely different position in her petition for dissolution of marriage against PW4. In the petitions, that is Exhibits P10 and P11 which were admitted in evidence he submitted that the appellant branded the property a joint matrimonial estate between her and PW4 and that during the course of their marriage, she agreed with PW4 that rents generated from the property should be used for the welfare, education and advancement of the children of the marriage.
He contended that it is clear that in the instant case, the appellant asserts that the property was a vacant land when it was assigned to her by the respondent company whereas it is in evidence that the property was fully developed and let out to tenants in 2004.
He argued that in paragraph 11 of Exhibits P10 and P11 the property that the appellant claimed was for the rents generated from it to be used for the welfare, education and advance of the children was fully built and developed property because she expressly mentioned “rent generated from the underlisted matrimonial estate” in her petitions.
Learned counsel submitted that the evidence of the appellant is full of contradictions on material and crucial points. He submitted that where the evaluation of evidence by a trial Court is based on the credibility of witnesses, appellate Courts are always reluctant to interfere because it is only the trial Court which had the opportunity of watching the demeanour of the witnesses. He urged the honourable Court not to interfere with the evaluation of evidence made by the trial Court and to resolve this issue in favour of the respondent.
ISSUE THREE
“Whether the trial Court was right when it placed reliance on the evidence elicited from PW1 by the appellant under cross examination after it had expunged his (PW1’s) Statement on oath from the record of the court.” (Ground 3).
The argument advanced by learned counsel for the appellant is that despite the fact that under cross examination by the appellant, PW1 admitted that his signature on the Statement on oath was not sworn before the Commissioner for Oaths or any official authorized by law to administer an oath but before his father’s lawyer at his father’s house and the trial Court expunged the said PW1’s Statement on oath from its record, the trial Court still went further to rely on the same evidence of PW1 to give judgment against the appellant. He referred to pages 618, 41 and 42 of the Supplementary Record of Appeal. (It is noted that there is no page 618 in the supplementary record of appeal which ends with page 551).
Learned counsel submitted that the decision of the trial Court is perverse as it did not reflect or take into consideration the evidence adduced before it and neither did it open its eyes to the obvious. He submitted that PW1, not being a subpoenaed witness and with no statement on oath in Court’s record cannot be regarded as a competent witness in law whose evidence could be relied upon by the trial Court. He relied on Section 112 of the Evidence Act, 2011 and the case of Oseni V. Dawodu (1994) 4 NWLR (Pt.339) 390 at 404 and B. Manfg (Nig.) Ltd. V. M/S O.I. Ltd (Supra) at 151, paras. F-H. He urged the honourable Court to resolve this issue in favour of the appellant.
On his part, learned counsel for the respondent submitted that contrary to the misleading argument of the appellant, it was only the statement on oath of PW1 that was expunged by the trial Court. He noted that the trial Court held that PW1 remained a witness in the case as he was cross examined by Mr. Olanipekun for the appellant. He referred to page 41 of the Supplementary Record of Appeal.
He contended that the situation would have been different if there was no further cross examination of PW1 after he had testified that he signed his witness Statement on Oath in his father’s house in the presence of his lawyers.
It is submitted that evidence elicited from PW1 by the appellant under cross examination was valid provided that it supports the case of any of the parties as made out in their pleadings.
He relied on Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt. 1181) 338 at 351, paras. F-H, Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 at 611, Paras. A-B and Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 at 241, paras G-H.
It is submitted that the only evidence given by PW1 under cross examination which was relied upon by the trial Court was pleaded by the respondent. He argued that this issue is purely academic and diversionary as it is not the appellant’s case that PW1 signed Exhibits D2, D3 & D9. He noted that the appellant in her brief of argument at Paragraphs 4.81 to 4.83 admitted that PW1 did not sign any of the documents. He urged the honourable Court to resolve this issue in favour of the respondent.
There is a consensus between the parties that the respondent purchased the property in dispute from one Mrs Christiana Amaseh Aganga in 2001. The bone of contention therefore is whether the property was sold to the appellant by the respondent company, as claimed by the appellant. The Respondent maintained that its property (the subject matter of this appeal) was not sold to the appellant whereas the appellant insisted that the property was assigned to her by the respondent for a valuable consideration after a resolution of the respondent’s directors and shareholders. However, the respondent has maintained that the resolution and all title documents relied upon by the appellant are forged.
Now, the question is, on whom the burden of proof lies in this matter?
Section 131 (1) of the Evidence Act 2011 provides:
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
(2) “When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
In proving her title to the property at the trial Court, the appellant tendered Exhibit D1. (resolution of respondent’s directors), Exhibit D9 (registered deed of assignment), Exhibit D2 (registered irrevocable power of attorney), Exhibit D3 showing that the respondent applied for and obtained the requisite consent to assign the property to the appellant, Exhibit D4 (recertified certificate of occupancy) registered at the land registry and others to support her case.
On the other hand, learned counsel for the respondent submitted that the respondent by its pleadings averred that the purported sale and devolution of the property in dispute to the appellant is invalid because the instruments of grant, that is the application for minister’s consent (Exhibit D3), the power of Attorney (Exhibit D2) and the Deed of Assignment (Exhibit D9) were obtained by fraud and forgery of the signatures of some directors of the plaintiff. He contended that there was no special resolution of the respondent’s board of directors that alienated and transferred title to the appellant.
The position of the law is that forgery as an offence must be proved beyond reasonable doubt. In the offence of forgery, the prosecution must prove that the document is a forgery and that it was forged by the accused. See Pam v. Mohammed (2008) 16 NWLR (Pt.1112) 1 at 92, Paras. G-H, Aina V. Jinadu (1992) 4 NWLR (Pt. 233) 91 and Domingo v. Queen (1963) SCNLR 146.
The standard of proof of allegation of crime in a civil proceeding is also proof beyond reasonable doubt. In Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 352) L24 at 153, Paras. D.G, the Supreme Court held:
“The settled principle of law is that where crime is alleged in a civil proceeding, proof must be beyond reasonable doubt. See Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417, Ezeonwu v. Onyechi (1996) 3 NWLR (PT. 438) 499…”
In the instant case, the respondent must prove beyond reasonable doubt that the documents in question were forged and also the signatures on the instruments of transfer too were forged.
It is pertinent to note that the most fundamental of the documents tendered by the appellant is Exhibit D1, which is the special resolution of the respondent company. The signatories to the document purport to be Fidelis Iweanya Ogbogoh (PW4) and Vincent Ogbogoh (PW3) both of whom testified before the trial Court. Both PW4 and PW3 testified on oath that there was no such resolution of the directors of the respondent company that its said property be sold to the defendant or indeed any other person, that the said property has not been sold to the appellant and will never be sold to her. See Paragraphs 28 and 29 of PW3’s statement on oath and paragraph 43 of PW4’s Statement on Oath.
Furthermore, both PW3 and PW4 denied signing Exhibit D1. Section 101(1) of the Evidence Act, 2011 provides:
“In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”
See the case of Daggash v. Bulama (2004) 14 NWLR (Pt. 892)144 at 188, Paras. C-F, 200, Paras C-G,189, Paras. A-B.
In the instant case, the trial Court at Page 45 to 46 of the Supplementary Record of Appeal held thus:
“Throughout the testimony of the PW3 and PW4, the defendant’s learned counsel did not deem it fit to confront PW3 and PW4 with this said special resolution they purportedly signed, which is the genesis of the transfer of this property to the defendant to contradict them either the document was not frontloaded as well. They waited till these witnesses left, to produce the said Exhibit D1 in Court during the testimony of the defendant.
It is evident from the uncontroverted testimony of PW3 that he was in Ireland in 2002 therefore he could not have possibly attended any extra ordinary general meeting of the plaintiff company on 8th January, 2002 at its Head Office address at No. 414 Bamako Street, Wuse Zone 1, Abuja as seen from Exhibit D1 itself. Neither could he have signed the said Exhibit D1. This alone makes Exhibit D1 a forged document. Even the signature attributed to him in Exhibit D1 is totally different from his admitted signature in his witness Statement on oath of 24th May, 2012. The same goes for the signature of PW4, Fidelis Iweanya Ogbogoh as well. Furthermore, for what it is worth, a closer look at Exhibit D1 also shows that it was only verified by the Corporate Affairs Commission on 10th July, 2012, more than 10 1/2 years after it was purportedly made.
The defendant herself in cross-examination testified that none of the directors ever attended the said meeting what (sic) Exhibit D1 was purportedly made. She nailed the often (sic) herself.
I am inclined to agree with the plaintiff’s counsel that this Exhibit D1 was forged by the defendant during the pendency of proceedings to support her case and therefore inadmissible pursuant to Section 83 (3) Evidence Act 2011. The defendant has therefore failed to prove that Exhibit D1 is a genuine or valid document.”
The reasoning of the learned trial judge in the excerpt above is unassailable. The uncontroverted evidence of PW3 is that he was not in Nigeria during the period Exhibit D1 was made. Exhibit D1 is the genesis and the most material document of ownership relied upon by the appellant. Worse, still, the circumstances of Exhibit D1 are most spurious. Even though it was purportedly prepared in 2002, it was not filed in CAC until 2012, after the suit had been filed in 2011. The observation made by the learned counsel for the respondent is also very relevant. See paragraphs 5.74 – 5.78 of the respondent’s brief of argument;
“5.74 This suit was filed at the trial Court on 22 February, 2011. (pages 1- 7 of Vol. 1 of the record of appeal). The suit was amended and an amended writ of summons was filed on 24 February, 2012 (pages 8 – 38 of Vol. 1 of the record of appeal). Pursuant to the leave of the trial Court, the respondent later filed a Further Amended Statement of Claim on May 24, 2012 and it was therein that the respondent at paragraph 46 thereof, averred that there was no resolution of its directors to sell the property to the appellant. (see 222-289 of Vol. 1 of the record of appeal more particularly at page 230 thereof).
5.75 The appellant’s statement of defence in this suit was filed on June 14. 2012. All these were before Exhibit D1 was ever filed at the Corporate Affairs Commission. (Pages 290 – 424 of Vol. 1 of the record of appeal).
5.76 It is absolutely incredible that the respondent who filed the instant suit on February 22, 2011 against the appellant to recover its property from her would later on July 10, 2012 file a resolution through its Chairman Managing Director (PW4) to transfer the same property to the same appellant.
5.77 It is also incredible that PW4 whom the appellant accused of instigating this suit at paragraph 30 of her Statement of Defence filed on June 14, 2012 (page 298 of Vol. 1 of the record of appeal) would on July 10, 2012 file a resolution to transfer the Respondent’s property to the Appellant after he had ‘instigated this suit’ The Appellant has not shown what has changed between her and PW4 that made him to proceed to prepare and file Exhibit D1 for her on 10 July, 2012.
5.78 The Appellant further failed to explain how PW4 who deposed to a Witness Statement on Oath on May 25, 2012 wherein he clearly stated at paragraph 44 thereof (kindly see page 245 of Vol. 1 of the record of appeal) that there was no resolution of the directors of the respondent to sell the property to her would pass and file Exhibit D1 on July 10, 2012 and give same to her. One would have expected that if truly PW4 passed, filed and gave Exhibit D1 to the Appellant as she testified, she would have confronted him with the said document to contradict him. Curiously, the appellant failed to do this.”
I agree, as submitted by the learned counsel for the respondent that the only reasonable conclusion that can be reached is that Exhibit D1 was made by the appellant and backdated to January 2002 and filed by the appellant in July, 2012 during the pendency of this suit for the purpose of supporting her case in this action.
Section 83(3) of the Evidence Act, 2011 provides:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
Exhibit D1 is caught by the provisions of Section 83 (3) of the Evidence Act. The document is unreliable and no probative value can be foisted on it as it is plagued with several irregularities and improbabilities.
Therefore, I agree with the learned trial Judge when he held above that the signatures of PW3 and PW4 on their witness Statements on oath are different from that of Exhibit D1. The appellant’s submission, therefore, that this Court should discountenance the findings of trial Court that the appellant forged Exhibit D1 based on its comparison of PW3 and PW4’s signatures in their witness statement on oath with Exhibit D1 is untenable.
As regards Exhibit D2, D3 and D9 purportedly signed by Emeka Ogbogoh (PW1) on 10th January, 2002, the learned trial judge held at Pages 47 to 48 of the Supplementary Record of Appeal that:
“From the evidence of PW1 which I find him credible and competent witness it is clear that he was not in the country in 2002 and hence could not have possibly signed Exhibit D2, D3 and D9 on 10th January 2002…
Again, Fidelis Iweanya Ogbogoh categorically stated that the only document for acquisition he signed on behalf of Emeka Ogbogoh and with his authority was the deed of assignment by which plaintiff acquired the property in question. He denied forging any of the documents alleged by the defendant. He was not confronted with any of the circumstances under which he could have forged the said documents.”
The appellant has vigorously impugned this finding of Court on the ground that the Court having expunged the witness statement of PW1, cannot again rely on it. It is paramount to note that even PW1 cannot even be made subject to any cross-examination since he is deemed not to have testified or given evidence in-chief since the witness’ statement on oath has been rightly expunged having not been sworn before the commissioner for oaths. However, findings of the Court can be verified from the uncontroverted pleadings before the Court; without placing any reliance on the expunged witness Statement on Oath of PW1.
Paragraph 24 of the Amended Statement of claim categorically stated that at no time was the Deed of Assignment taken to London for Emeka Ogbogor (PW1) to sign same. (page 226 of record of appeal) See also paragraph 27 of witness statement of oath of PW4 (page 242 of record of appeal). This paragraph was never specifically denied by the respondent. All she did was a general traverse in paragraph 18 of the statement of Defence and counter-claim. (Page 244 of record of appeal). The law is trite that a general traverse is not enough to controvert material and important averments in pleadings. A fact not specifically denied is deemed admitted. See A.TE Co. Ltd v. Mil Gov, Ogun State (2009) LPELR – 554 (SC) P.33, Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.
Since there was no specific denial of the averment which showed that PW1 would not have signed D2, D3 and D9 as he was not in the country and no evidence that the documents were forwarded to him, the appellant is deemed to have admitted this specific averment of the respondent.
Furthermore, and very important is the fact that the submissions of the appellant in paragraphs 4.81 and 4.83 amount to tacit admission that PW1 did not sign Exhibit D2, D3 and D9.
The submissions are quoted herein for ease of reference –
“4.81 Therefore, my Lords, the question of whether the Power of Attorney dated 10th January, 2012 and the Deed of Assignment date same date were sent to London does not arise as PW4 is the one that signed PW1’s signatures on the said documents and gave his wife (Defendant/Appellant) long before the severance of their relationship in 2009.
4.83 Furthermore, my Lords, the Defendant/Appellant’s testimonies, both oral and documentary, are consistent on the issue of PW4 having different/several signatures and used these signatures to sign for Emeka Ogbogoh. The DW1 under cross- examination said: “Emeka Ogbogoh, who is Engr. (Dr.) Fidelis Iweanya Ogbogoh’s son, is a medically certified autistic. Engr. (Dr.) Fidelis Iweanya Ogbogoh who, at all time material was a civil servant not supposed to engaged in business, usually used Emeka Ogbogoh’s name and signed any signature for Emeka on Sundry documents pertaining to acquisition of landed property and registration of various companies including the incorporation documents in respect of the plaintiff.”
37
See pages 304, Volume 1, paragraph 7, and 671, Volume 11, of the Record of Appeal. The Plaintiff/Respondent never disputed the above evidence but admitted same under cross-examination.
This is an admission against interest. This puts to rest the fact that PW1 never signed Exhibit D2, D3 and D9.
Based on the pleadings and evidence adduced at the trial Court, I agree with the findings of the trial Court that Exhibits D2, D3 and D9 were not also signed by PW1.
Generally, evaluation of evidence and finding of facts is the primary function of a trial judge. It is only where a trial Court fails to evaluate the evidence adduced before it that an appellate Court can intervene. See Momoh V. Umoru (2011) 15 NWLR (Pt. 1270) 217 Odutola V. Mabogunje (2013) 7 NWLR (Pt. 1354) 522, Obioha V. Akukwe (2005) 5 NWLR (Pt.658) 705 and Otito V. Odidi (2011) 7 NWLR (Pt.1245) 108.
However, where a trial Court has properly analyzed the documents tendered and made appropriate findings on them, the appellate Court will not disturb the findings of the trial Court on the documents. From the Record of Appeal before this Court, it is shown that the learned trial judge analyzed the documents tendered in this case.
This Court has no reason to disturb the final decision of the lower Court in this case.
Issues 1 and 3 are resolved in favour of the respondent.
ISSUE TWO
“Whether the trial Court was right when it issued an order of perpetual injunction against the appellant whereas the minister of the Federal Capital Territory, Abuja who is the absolute owner of the property was not a party in the suit at the trial Court.” (Ground) 2
It was submitted by learned counsel for the appellant that the respondent did not join the Minister of Federal Capital Territory (FCT), Abuja who issued the Certificate of Occupancy Certificate of Occupancy (C of O) dated 11th November, 2005 (Exhibit D4) to the appellant over the subject matter (disputed land) and the Federal Capital Development Authority (FCDA), the absolute owner of the property was not made a party to the suit at the trial Court and no evidence whatsoever, was led to show that the respondent was issued Certificate of Occupancy (C of O) by the Minister of the FCT over the property.
He emphasized that the appellant pleaded and testified at the trial Court that her title to the property was verified and recertified by the FCT Administration; and noted that despite the overwhelming evidence that the C of O was issued by the Minister of the FCT and registered at the land Registry Office, Abuja, the trial Court granted an order of Perpetual injunction against the appellant when the absolute owner (FCDA) was not a party to the suit. It is submitted that it is trite law that perpetual injunction cannot be granted at the instance of a limited owner where owner of absolute interest is not a party to the action. He relied on Madu V. Madu (2008)6 NWLR (Pt.1088)296 at 321, Paras E-H. He urged the honourable Court to reverse the order of perpetual injunction made by the trial Court restraining the appellant from accessing her property when the owner of the absolute title (FCDA) was not a party to the suit at the trial Court.
Responding, learned counsel for the respondent submitted that it is not the law that when an order of perpetual injunction is granted by a trial Court in circumstances where the absolute owner of the land was not made a party, that an appellate Court will automatically set that decision aside. He submitted that this honourable Court has the powers to substitute the order of perpetual injunction for an order of injunction simpliciter. He referred to the same cited case of Madu v. Madu (supra) at 1625, Paras. D-F where the apex Court granted an order of injunction instead of perpetual injunction.
Learned counsel urged us to decline the appellant’s invitation to set aside the order of perpetual injunction made by the trial Court and instead make an order of injunction restraining the appellant from further managing or collecting rents from the property.
There are plethora of cases to the effect that it is improper to grant a perpetual injunction at the instance of a limited owner when the owner of the absolute interest is not a party to the case. See the cited case of Madu v. Madu (Supra), 296 at 322.
Going by the evidence before the Court, the absolute owner of the plot is Federal Capital Development Authority, The plaintiff/appellant is an allottee or a lessee – in other words, she is a limited owner. The Federal Capital Development Authority has not been made a party to this case. However, in the same celebrated case of Madu v. Madu (supra), though the Supreme Court observed that the plaintiff in that case prayed for a perpetual injunction restraining the defendant from further trespassing into the disputed land whereas the absolute owner was not a party, the apex Court, per Aderemi JSC went ahead to make an order of injunction restraining the defendant/respondent from further trespassing on the said plot.
In Chief Dada, the Lojaoke v. Chief Shittu Ogunremi & Anor (1967) NMLR 181, this Court at page 184 said and I quote:
” It is improper to grant a perpetual injunction at the instance of a limited owner when, the owner of the absolute interest is not a party to the case.”
However, the Court in the same case at page 323, para. B held:
“An order of injunction restraining the defendant/respondent from further trespassing on the said plot of land is hereby made.”
The Supreme Court in its judgment instead of granting an order of perpetual injunction, granted an order of injunction simpliciter.
In the instant case, Minister of the FCDA was also not a party to the case at the trial Court and the plaintiff/respondent sought for an order of perpetual injunction restraining the defendant/appellant from further trespassing into or interfering with the plaintiff’s possession and ownership of the property. Based on decided authorities on this point, I hold the view that this Court if it finds it meritorious, instead of granting an order of perpetual injunction, can validly grant an order of injunction simpliciter. In the circumstances of this case, in my view, the error in granting perpetual injunction, instead of an injunction simpliciter cannot be a basis for asking this Court to set aside the judgment of the trial Court.
It is immaterial that there is no appeal against the decision of the trial Court granting a perpetual injunction and that the respondent did not cross-appeal on the issue. What is material is the holding of this Court affirming the decision of the lower court that the ownership of the disputed property for the respondent and the fact that respondent had sought for an injunction, albeit perpetual injunction. The equity of this case warrants that an injunction simplicita, which is less than the relief of perpetual injunction be granted. In circumstance an order of injunction restraining the defendant/appellant from further trespassing on the disputed property is hereby granted. Issue 2 is resolved in favour of the respondent.
ISSUE FOUR
“Whether the trial Court was right when it awarded special damages of One Hundred and Sixty Million Naira (N160,000,000.00) against the appellant.” (Ground 9).
Learned counsel for the appellant submitted that from the pleadings and relief claimed by the respondent against the appellant, the only claim against the appellant is the amount of rent collected from 2004-2012 and since the appellant denied collecting N160,000,000.00, the onus is on the respondent to prove the amount collected by the appellant from 2004-2012 with exactitude. He referred to the appellant’s statement of defence at page 296 particularly paragraph 25, Vol. 1 of the Record of Appeal.
It is submitted that since the respondent failed to prove the amount of rent collected by the appellant within the period in question with receipts or any other documentary evidence, the trial Court ought not to have granted the respondent N160,000,000.00 as it amounted to granting a relief which was rather speculative without proof.
He submitted that the respondent pleaded and gave evidence through PW4 that after developing the property, it let in tenants and authorized the appellant to collect the rents from tenants living in the property and manage same and also render account to the respondent. He contended that there was no evidence before the trial Court of any written authority or Power of Attorney from the respondent authorizing the appellant or appointing her as its agent with respect to the property or an authority to collect rents on the property on its behalf. He argued that the respondent never led any evidence to show how many tenants were let in or have been resident on the property from the time it alleged it let the property out from 2004 till 2012 and no receipts of payment on the property to show how much was collected as rent from 2004 till date.
He submitted that failure of the respondent to show any of the above evidence as alleged shows that the pleading is at variance with the evidence led and as such, fatal to the respondent’s claim for special damages and its entire case and he urged the Court to so hold. He relied on Ofomaja v. Commissioner for Education (1995) 8 NWLR (Pt. 411) 69 at 85, Paras. B-C and Ahmed v. CBN (2013) 2 NWLR (Pt. 1339) 524 at 547, paras. A-B.
It is further submitted that the oral evidence led by the respondent in proof of its claim for special damages without more fall short of the strict proof required by law. He urged the honourable Court to allow this appeal and set aside the judgment of the trial Court as well as the award of N160,000.000.00 made against the appellant as special damages as it is perverse and has led to a miscarriage of justice.
In his response, learned counsel for the respondent submitted that the trial Court was right when it awarded special damages of N160,000,000.00 against the appellant. He submitted that the facts that supports the respondent’s claim is contained at paragraph 58 (iv) and Paragraphs 54-56 of the 2nd Further Amended Statement of Claim. He contended that the appellant neither joined issues with the respondent on the facts it pleaded in support of the claim for special damages nor did she adduce any contrary evidence in rebuttal. He noted that PW4 was not contradicted under cross-examination.
It is submitted that the law is settled that where a witness testifies on a material point, the adverse party ought to cross examine him or show that his testimony is untrue and where this is not done, the Court would readily conclude that the adverse party does not dispute the fact. He cited Asafa Food Factory V. Alraine (Nig.) Ltd. (2002) 12 NWLR (Pt.781) 353 at 375, Para. C.
Learned counsel for the respondent submitted that the appellant’s argument that there was no proof of agency by the respondent or production of receipts of payments to show the amount of rents collected is indeed immaterial. He contended that what is important is that PW4 gave evidence to show the number of flats in the property, the rent accruable from the flats and how long the appellant has collected the rents and refused to remit any of them to the respondent. He submitted that if any or all of the pleadings and evidence of the respondent was not true, the appellant would have said so. He argued that the respondent was entitled to the award of the full sum claimed as special damages only upon minimum proof as there was no evidence from the appellant on the issue of special damages which could be put on the other side of the imaginary scale of justice and weighed against the evidence of PW4.
He cited the cases of Military Gov, Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291 at 331-332, paras. H-B, Egbunike V. A.C.B. Ltd. (1995)2 NWLR (Pt.375)12 NWLR (Pt.531) 46 at 54, para. G and West Africa Shipping Agency and Anor. V. KaIla (1978) N.S.C.C. 114 at 119-120.
Learned counsel further relied on Section 279 (1) and 283 (1) of CAMA and submitted that the appellant must account for N160,000,000.00 as claimed by the respondent and all other company’s money she has improperly paid to herself from the rents generated from the property. He further relied on the case of Georgewill V. Ekine (1998) 8 NWLR (Pt. 562) 454 at 464, Paras. F-G.
He urged the honourable Court to resolve this issue in favour of the respondent by affirming the decision of the trial Court and dismiss this appeal in its entirety with substantial cost.
The law is settled that in order to succeed in a claim of special damages, the plaintiff must specifically plead each of the items of the special damages he claims and must also strictly prove each of the said items to the satisfaction of the Court, as the Court is not entitled to make its own estimate of same.
Special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence and without such proof, no special damages can be awarded. SeeTaylor V. Ogheneovo (2012) 13 NWLR (Pt.1316) 46 at 61, Para. C, M.M.A. Inc. V. N.M.A.(2013) 18 NWLR (Pt.1339) 506, Ahmed V. C.B.N. (2013) 2 NWLR (Pt.1339) 524 and Abi v. C.B.N (2012)3 NWLR (Pt.1286)1.
In the instant case, the respondent by its further amended statement of claim in page 231, Vol.1 of the Record of Appeal (paragraphs 54-56) pleaded that the defendant/appellant started collecting rents from the tenants living in the property Since 2004 and has collected N160,000,000.00 only between then and the time of filing the present suit. The specific averments in paragraphs 54 – 56 of the Further Amended Statement of Claim were not specifically denied by the appellant. A general denial was merely made by the appellant in paragraph 25 of the statement of Defence and counter- claim. There was no specific averment to counter the pertinent averments of the respondent in his pleadings. The said averments are therefore deemed admitted and need no further proof. PW4 in his evidence stated the number of flats in the property, the rent accruable from the flats and how long the appellant has collected the rents and refused to remit any of them to the respondent.
I agree, as submitted by the learned counsel for the respondent that on the state of the pleadings, the Respondent was entitled to the award of the full sum claimed as special damages only upon minimum proof because there was implied or tacit admission by the appellant as already analyzed above. Apart from this, there was no other evidence from the appellant to controvert the evidence of the respondent on damages to contradict the weighty evidence of PW4. The law is trite that where material evidence is unchallenged or uncontroverted, the Court is entitled to accept it and rely on it as proof of the fact it seeks to establish. See Seismograph Services Nig. Ltd. v. Ogbeni (1976) 1 NMLR 290, Ifeanyi Chukwu Osondu Co. Ltd. Anor v. Akhigbe (1999)1 NWLR (Pt. 625)1, Asafa Food Factory v. Airaine (Nig.) Ltd. (2002) 12 NWLR (Pt.781) 353 at 375.
Strict proof in the con of special damages does not mean an unusual proof or proof beyond reasonable doubt.
What is required is that the plaintiff should establish his entitlements to that category of damages by credible evidence of such character as would suggest that evidenced is entitled to an award under the head. So, where the plaintiff pleads special damages with particularity and the defendant does not challenge or contradict the evidence given the plaintiff has discharged the onus of proof and unless the evidence given is such that no reasonable Tribunal can accept it, the evidence ought to be accepted as strictly proved. See S.P.D.C. (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439, SPDC Nig. V. Okonedo (2007) LPELR – 8198 (CA).
In the instant case, the evidence adduced for the respondent meets the requirement of strict proof envisaged by law. The contention of the Appellant that admission to special damages by an adverse party does not relieve a claimant from strict proof is the law. See Agi v. Access Bank Plc (2014) 9 NWLR (R.1411) 121 at 158. However, the principle is not applicable herein because the respondent established by credible evidence its claim for special damages. Section 279 (1) of Companies and Allied Matters Act (CAMA) 2004 provides:
“A director of a company stands in a fiduciary relationship towards the company and shall observe the utmost good faith towards the company in any transaction with it or on its behalf.”
By virtue of Section 283 (1) of CAMA it provides:
“Directors are trustees of the company’s moneys, properties and their powers and as such must account for all the moneys over which they exercise control and shall refund any money’s improperly paid away, and shall exercise their powers honestly in the interest of the company and all the shareholders and not in their own or sectional interests.”
In view of the analysis above, I am of the view that the trial Court was right when it awarded special damages of N160,000,000.00 against the appellant.
Issue 4 is also resolved in favour of the respondent.
On the whole, having resolved all the issues in favour of respondent against the appellant, I hold the view that this appeal lacks merit and it is hereby dismissed.
Parties to bear their respective costs.
ABDU ABOKI, J.C.A.: I have had the privilege of reading in advance the draft judgment of my Learned Brother, TINUADE AKOMOLAFE WILSON JCA.
The facts that led to the appeal and the reliefs sought by the parties are well spelt out in the lead judgment and I will not repeat same.
My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. However, and just for purpose of emphasis, I will put in one or two words of mine in respect of the award of special damages.
It is trite law that special damages must be specifically pleaded with distinct particularity and it must also be strictly proved. The Court should not act within the realm of conjecture in awarding special damages and also should not rely simply on fluid and speculative estimate of alleged loss or injury sustained by the plaintiff. See B.J. NGILARI v. MOTHERCAT LTD (1999) 12 SC (Pt. 11) 1, OSUJI v. ISIOCHA (1989) 6 SC (Pt. II) 158.
In the case of NEKA BBB MANUFACTURING CO. LTD v. AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt. 1) 32 the apex Court stated thus:
“Where the claimant specifically alleges that he suffered special damages he must perforce prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms, easily cognizable, the loss or damages he has suffered so that the opposing party and the Court will see and appreciate the nature of the special damages suffered and being claimed.”
The law in fact is also well settled, that special damages must be strictly proved by the person who claims to be entitled to them even though the nature of proof depends on the circumstances of each case. See Gabriel O. Okunzua v. Mrs. E. B. Amosu & Anor (1992) NWLR (Pt. 248) 416 or (1992) 7 SCNJ 243. In proof of special damages, the claimant must therefore lead evidence to prove the type of damages of such a character as would suggest that he is indeed entitled to such award under the head. See OSHINJINRIN & ORS v. ELIAS AND ORS (1970) All NLR 153 at 156.”
In the instant case, as rightly held in the lead judgment, the Respondent by its further amended statement of claim pleaded that the Defendant/Appellant started collecting rents from the tenants living in the property since 2004 and has collected N160,000,000.00 only between then and the time of filing the present suit. The specific averments in Paragraphs 54 – 56 of the Further Amended Statement of Claim were not specifically denied by the Appellant. The said averments are therefore deemed admitted and need no further proof.
However, in NWARIBE v. OWERRI MUNICIPAL COUNCIL & ORS (2015) LPELR 24433 (CA), it was held that even where facts are admitted, it is still for the trial Court to scrutinize the pleading to determine if Judgment can correctly be entered in favour of the plaintiff or claimant whose claim has been deemed admitted in the circumstance.
In LARMIE V. D. P.M & SERVICES LTD. (2006) ALL FWLR (PT. 296) 775 AT 803, the apex Court held as follows:
“Generally, in law, where the evidence is uncontradicted, the onus of proof is satisfied on minimal proof since there is nothing on the other side of the Scale. The failure on the part of a defendant to give evidence does not exonerate the Plaintiff from proving his case though minimally.”
In the instant case, the Respondent was entitled to the award of the full sum claimed as special damages only upon minimal proof because there was an implied or tacit admission by the Appellant.
It is for this and the fuller reasons contained in the lead judgment of my learned Brother TINUADE AKOMOLAFE WILSON JCA that I also adjudge this appeal to be devoid of merit. I accordingly dismiss same.
I also abide by the orders made in the lead judgment
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by learned brother, Tinuade Akomolafe-Wilson, JCA. I am in agreement with the reasoning and the conclusion which I adopt as mine. I do hold that this appeal is lacking in merit and it is hereby dismissed.
Appearances:
A.D. Omachi with him, Nkeimi Obiefoka and Ademola A. Olagoke For Appellant(s)
Rilwanu Idris with him, D.E. AmaefulaFor Respondent(s)
