NIGERIA PORTS PLC V. DUNCAN MARITIME VENTURES
(2010)LCN/3994(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of July, 2010
CA/L/665/2009
RATIO
WAIVER: WHAT THE CONCEPT OF WAIVER ENTAILS; ELEMENTS THAT MUST CO-EXIST FOR THERE TO BE A WAIVER
As a principle of general rule, the concept of waiver is denote on intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to same which he would have insisted upon. It is in succinct, an abandonment of a right. This principle has been well defined and enunciated by their Lordships of the apex court in the case of Auto Import Export v Adebayo under reference supra, and wherein Ogbuagu JSC has this to say at page 122 of the report:- “The concept of waiver, is said to be that a person who is under no legal liability and having full knowledge of his right or interest conferred on him by law, and who intentionally, decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted to exercise those right or that he has been denied the enjoyment of those interests. See Ariori & Ors. V Elemo & Ors. (1983) 1 SC 13 at 48-49; …(1983) 1 SC NLR 1 at 25 per Eso, JSC; Elomo v Oyakhire (1985) 1 NWLR (Pt.2) 195; Adegoke Motors Ltd. v Dr. Adesanya & Anor. (1989) 3 NWLR (Pt.109) 250 at 292… to amount to a waiver-express or implied, two elements it is settled, must co-exist, namely:- i. The party against whom the doctrine is raised, must have knowledge or be aware of the act or omission which constitutes the waiver and ii. He must do some unequivocal act adopting or recognizing the act or omission, see Olatunde v Obafemi Awolowo University & Anor. (1998) 5 NWLR (Pt.567) 178… Ariori & Ors. V Elemo & Ors. (supra) were referred to.” In order to establish a waiver, it must therefore be shown, that some step has been taken which is only necessary or only useful if the objection has been actually waived or has never been entertained. See Dr. Saraki v Kotoye (1990) 4 NWLR (Pt.143) 144; (1190) 6 SCNJ 31. PER CLARA BATA OGUNBIYI, J.C.A
WAIVER: DEFINITION OF THE WORD “WAIVER”
…in the case of Ariori & Ors. V Elemo & Ors. (supra) which was referred to in the authority of Odu’a Investment Co. Ltd. v Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe JSC, at page 22 of the NSCC Report while defining the word waiver, had this so say:- “By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which as his option, he could have insisted upon.” Obaseki, JSC on his part at page 25 of the same report, opined as follows:- “Waiver is according to Words and Phrases legally defined, Vol.5 p.301 1969 Edition- reprinted 1874 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision, may waive it and allow the transaction to proceed as though the provision did not exist.”Further more and in the case of Carribean Trading & Fidelity Corporation v NNPC (1992) 7 NWLR (Pt.252) 161 at 185, Tobi, JCA, as he then was had this to say:- “Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a court of law will hold that he has waived his right.” PER CLARA BATA OGUNBIYI, J.C.A
WHETHER THE JUDGMENT OF THE COURT MUST BE CONFINED TO THE ISSUES RAISED BY THE PARTIES IN THEIR PLEADINGS
In the case Spasco Vehicle and Plant Hire Co. v Airline (Nigeria) Ltd. (1995) 8 NWLR (Pt.416) 665 at page 669 their Lordships of the apex court per Iguh JSC made a following deductions and said:- “It is an elementary and fundamental principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties in their pleadings. It is not competent for the trial court suo motu to make a case for either or both parties and then proceed to give judgment on the case of the parties before him… This principle of law is without doubt in accordance with common sense as to permit trial courts to wander out of issues raised by the parties in their pleadings and to found their judgment on such issues could not only take the parties by surprise and make nonsense of pleadings, it might well result in the denial to one or the other of the parties of the right to fair hearing pursuant to the audi alteram partem rule as enshrined in the 1979 Constitution of Nigeria.” PER CLARA BATA OGUNBIYI, J.C.A
INTERFERENCE OF APPELLATE COURT: CIRCUMSTANCES UNDER WHICH AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT OF A TRIAL COURT AND THE PROPER ORDER OF THE COURT TO MAKE IN SUCH A SITUATION OF IMPROPER EVALUATION OF THE WITNESSES
in the case of Oshatoba v Olujitan (2000) 5 NWLR (Pt.655) p.159 at 175, the apex court again per Iguh JSC ruled that:- “An appellate court will not ordinarily interfere with the findings of fact of a trial court except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses or where it has drawn wrong conclusion from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse and do not flow from the evidence accepted by it.” The same conclusion was arrived at in the case of Ejefor v Okeke (2000) 7 NWLR (Pt.665) page 363 and applying the same principle of law. Furthermore and in the case of Akintan v Adeniyi (2001) 10 NWLR (Pt.722) p.695, Oguntade JCA (as he then was) in delivering the lead judgment held and ordered for retrial of the entire case especially in the absence of the lower court giving any reason for arriving at its decision. The trial court in that case was held to have failed to take advantage of its seeing and assessing the credibility and demeanor of the witnesses. The same principle of law was also applied and laid down in the case of Ndulue v Ojiakor (2001) 14 NWLR (Pt.734) 717. In a further authority of the case of Oduwole v Aina (2001) 17 NWLR (Pt.741) page 1 at page 44, Tabai JCA (as he then was) on the same related issues pronounced that the proper order to make in such a situation of improper evaluation of the witnesses is to remit the case for a retrial de novo before another judge. PER CLARA BATA OGUNBIYI, J.C.A
COUNTER CLAIM: NATURE OF A COUNTER CLAIM
It is trite and elementary to state the general principle relating a counter claim. In other words it is an independent action distinct from the main claim and governed by the same rules of pleading as statement of claim, with a reply to it by the same rules as a defence. See Odger’s Principles of Pleading and practice 21st Edition page 200. It needs not be an action of the same nature as the original action. See also Bowen L. J. in Amon v Bobbett (1889) 22 QBD 543 at 548.
Legally and historically speaking, the existence of a counter claim is a creation of statute; i.e. by section 24(3) of the Judicial Act 1873 which is an English Statutes of general application which is applicable to Nigeria as part of our law. The courts under the statute are given power to give a defendant in the plaintiffs’ action such relief, both in respect of legal and equitable rights, as is properly claimed by his pleading and could have been given in a separate action. See Effuom v Ironbar (2000) 11 NWLR (Pt.678) p.344, also Igbinovia v Agboifo (2000) 12 NWLR (Pt.681) p.336.
It is trite also that by its very nature, a counter claim, like the main claim must also be proved to the satisfaction of the trial court as it is required by law. PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
NIGERIA PORTS PLC Appellant(s)
AND
DUNCAN MARITIME VENTURES
(NIGERIA) LIMITED Respondent(s)
CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment): This is an appeal by the defendant (hereinafter referred to as “the appellant”) against the judgment of the Honourable Justice Tijani Abubakar sitting at the Federal High Court Lagos Judicial Division in Suit No.FHC/L/CS/708/05. The judgment was delivered on the 20th day of January, 2009. The plaintiff (hereinafter referred to as “the Respondent”) claimed against the appellant declaratory and injunctive reliefs together with the sums of N8,000,000.00 (Eight Million Naira) and N2,000,000.00 (Two Million Naira) as exemplary/aggravated and general damages respectively in the amended statement of claim. The statement of claim and subsequently amended statement of claim are contained at pages 3-5 and pages 445-447 of the record of appeal respectively. Also the statement of defence and the subsequently amended statement of defence which incorporated a counter claim are contained at pages 72-74 and pages 359 – 368 of the record respectively, while the reply to the statement of defence and defence to counter claim are contained at pages 402-404 of the said record.
The property, the subject matter, centres of this claim is known and described as Plot G (11) measuring 7,445 M2TCIP Industrial Estate Tincan Island Port, Apapa – Lagos. The action was therefore commenced by a writ taken out on the 12th July, 2005. The reproduction of paragraphs 4-14 of the plaintiffs’ amended statement of claim at pages 445 to 446 of the record of appeal would give a comprehensive picture of the claim at the lower court and subject to the eventual reliefs sought for at paragraph 15 thereof. The related reference paragraphs state as follows:-
“4. The plaintiff aver that sometime in June 2001 the plaintiff was appointed as a bonded container terminal operator by the defendant. The plaintiff shall rely on letter of appointment dated 27th June, 2001 during trial to prove its case.
5. The plaintiff further aver that ever since the appointment, the plaintiff has been operating as a bonafide tenant of Nigerian Ports Authority and has been so recognized by the defendant. The plaintiff shall during trial of this action rely on the defendant’s Estate Rent Demand notes, debit note and payment receipts during trial of this action.
6. That as a result of good conduct of the plaintiff in carrying out its operation, the Nigerian Shippers Council has cause in appreciation of the plaintiff due diligence in carrying out its operation sent a letter of commendation to the plaintiff. The plaintiff shall found the letter of commendation from Nigerian Shippers Council to prove its case during such.
7. The plaintiff aver that it is the usual practice of Nigerian Authority to send a quarterly rent demand notice in arrear for the plaintiff to make payment to the defendant for the period of the demand notice. The plaintiff shall rely on the various demand notice send to plaintiff for payment by Nigerian Ports Authority.
8. The plaintiff further aver that in cause of duly and understanding reached with defendant in this case, the plaintiff has at various times and on the instruction of the defendant received and processed twenty six vessels with containers totaling 13,100. The plaintiff shall found various instruction and document from the defendant to prove its case during trial.
9. The plaintiff avers that it occupies and operates its bonded warehouse at a place known and described as 7445m2 unpaved Area at Plot 11 TICP Industrial Estate Tincan Island Port, Apapa, Lagos.
10. The plaintiff aver that in order to make the premises described in paragraph 9 above fit and habitable for the business of bonded Warehouse, did, with the consent of the defendant, invested and improved the described premises by way or rehabilitation and enhancement of the value of the place.
11. The plaintiff further states that it invested over N30,000,000.00 (Thirty million Naira) in the improvement of the premises it presently occupies.
12. The plaintiff aver that on the 27th June, 2005 the defendant invaded it’s Bonded Warehouse described above and sealed up the premises without notice.
The plaintiff shall rely on the photographs of the sealed premises during trial.
13. The plaintiff further aver that ever since the place was sealed, the defendant has threatened to use force to evict the plaintiff from it’s Bonded Warehouse herein described above.
14. That the plaintiff have lost a considerable income and good with it’s business partners.
15. Whereof the plaintiff claims against the defendant.
(i) A declaration that the seal off of the plaintiffs place of business known and described as 744m2 Plot 11 TICP Industrial Estate Tincan Island is illegal and no effect.
(ii) A perpetual injunction restraining the defendant from illegally and forcefully ejecting the plaintiff from the place described above.
(iii) Exemplary and aggravated damages in the sum of N8,000,000.00 (Eight million naira) for loss of business resulting from unlawful invasion by the defendant.
(iv) General damages in the sum of N2,000,000.00 (Two million naira).”
In response the defendant also in its amended statement of defence and counter claim had this to say at paragraphs 4, 5, 7-8, 10-18, 20, 23, 27, 33, 35-40 at pages 359-368.
“4. The Defendant vehemently denies the averments contained in paragraph 5 of the claim, and puts the plaintiff to the strictest proof thereof.
5. In further response to paragraph 5 of the claim, the defendant states that the plaintiff was at all times material to this suit a squatter and a trespasser on the property at Plot Gil Tin Can Island Port measuring 7,445m2 the subject matter of this suit and undisputedly belonging to the defendant.
7. The defendant states that the plaintiff is aware that its occupation of the property was illegal and without the authority of the defendant as the owner of the property. The defendant shall found on the plaintiffs letters dated the 25th day of February, 2004 and 27th day of June 2005 during the trial to prove its case.
8. In further answer to paragraph 5 of the claim, the defendant states that the Estate rent demand notes and debit notes were sent to the plaintiff to cover the period the plaintiff has been illegally in occupation of the property and amount due on each containers discharged by vessels stemmed to it in order to avoid revenue loss to the defendant in particular and the Federal Government in general.
10. The defendant avers that it does not create tenancy relationship by mere issuing of Estate rent demand notes and debit notes neither does subsequent payment of the amount(s) so demanded create a tenancy relationship on the defendant’s property or change the status of the plaintiff as an illegal occupant of the premises.
11. Further to paragraph 10 above, the defendant states that it is its policy in creating a tenancy relationship to issue allocation letter to its tenant and thereafter execute a Lease Agreement with the tenant. The defendant shall lead credible evidence to prove the averments contained herein during the trial and puts the plaintiff on notice to produce such agreement if any.
12. The defendant states that it has at no time sent any allocation letter or signed a Lease Agreement with the plaintiff neither has it done any act or omission that can create a tenancy relationship between it and the plaintiff in respect of the subject matter of this suit.
13. In answer to paragraph 6 of the claim, the defendant states that it is not in a position to deny or admit the averments contained therein, but however states that the averments contained in paragraph 6 of the claim are immaterial to the plaintiff’s occupation of the premises forming the subject matter of this suit.
14. In response to paragraph 7 of the claim, the defendant avers that it created a leasehold interest of twenty one (21) years over the subject matter of this suit with a company known as Chemical and Allied Products Plc (hereinafter called “the lessee”) which commenced on January 1981 and ended in December 2002 and that the letter of offer dated 8/8/90 and the Lease Agreement expressly precluded the said lessee from subletting the said property to any person or organization.
15. Further to paragraph 14 above at the expiration of the duration of the aforesaid lease (DEFENDANT/LESSEE) the defendant amply conveyed to the said lessee the fact that the lease has expired and that it is not renewable. The defendant further informed the lessee of its intention to recover the said property for its use. The defendant shall found on its respective letters dated 14/3/03, 28/4/03 and 16/2/04 to the lessee during the trial of this suit.
16. The defendant states and as specifically indicated in its aforesaid letter dated 14/03/03 to Lessee (CAPL) that it wanted to use the property then for other operations which did not include bonded warehouse operations.
17. The defendant states that the lessee informed it in a very clear and unambiguous letter dated 26/03/04 that upon the receipt of the defendant’s letter dated 16/02/04 to it informing the said lessee of the non-renewal of the said lease, it (lessee) immediately vacated the premises. The defendant shall found on the said letter ref. CAP/ACS/06/64/01 dated 26/03/04.
18. The defendant further states that the lessee never informed it that when it vacated the said premises, it sublet same to the plaintiff, neither has the plaintiff been able to show that it is in lawful occupation of the said premises.
20. The defendant further wrote to the plaintiff expressing its displeasure and the illegality of the plaintiffs continuous occupation of the property and accordingly notified the plaintiff of its intention to recover the property. The defendant shall in the course of the trial found on letters dated 16/2/04, 7/04/04, 17/5/04, and 29/6/05 respectively and the plaintiffs letter of 17/6/05 to the defendant wherein it admitted the receipt of the defendant’s letter REF.TC/EST/LL/C.1/095 of 16/2/04 and 20/2/04.
23. In response to paragraphs 8 and 9 of the claim, the defendant denies reaching any understanding with the plaintiff in respect to its occupation of the subject matter of this suit rather states that the plaintiffs receipt and processing of vessels was only in line with its duty as a “Bonded Container Terminal Operator” which it applied for and was subsequently appointed before coming into illegal occupation of the defendant’s property.
27. Further to paragraph 25 above, the defendant states that the said property was never by the usage plan of the defendant allocated, authorized to be used by the plaintiff has unilaterally without the consent and knowledge of the defendant altered and destroyed the said property thereby rendering it useless and unsuitable for the defendant’s purpose.
33. The defendant shall rely on the various notices to recover possession and all other documents relevant to this suit at the hearing of same.
35. The defendant further states that it appointed the plaintiff as a Bonded Container Terminal Operator on the 27th day of June 2001 thereby conferring on the plaintiff the privilege of handling the discharge of loads of containers which may be stemmed and/or assigned to the plaintiff’s Bonded Warehouse solely at the defendant’s discretion provided it (plaintiff) act and conforms with the said defendant’s policies and directives.
36. The defendant states that it is the practice and/or an obligation on the plaintiff and any other such organization which operates as a Bonded Container Terminal Operator to be paying to the defendant 55% inclusive of VAT (i.e. 50% + 5% VAT) of a total sum calculated on the basis of number of containers assigned/stemmed to it per ship load of containers at N500.00 and N1,000.00 per container of 20 foot and 40 foot size respectively on each day the container remains in the custody of the plaintiff and undischarged.
37. The defendant further states that the plaintiff had prior to the interim injunction granted by this court paid at various times the said charges or rent averred in paragraph 36 above to the defendant.
38. The defendant states that the plaintiff has refused and ignored to remit or pay these charges or rent due the defendant since the 28th day of July 2005 being the effective date the interim injunction was granted by this Honourable Court restraining the defendant from ejecting the plaintiff from the landed property forming the subject matter of this suit.
39. The defendant states that the plaintiff is as at the 5th day of February 2007 indebted to it to an aggregate sum of N114,387,850.00 (One Hundred and Fourteen Million Three Hundred and Eighty-Seven Thousand Eight Hundred and Fifty Naira) being the unremitted debit charges owed the defendant on all containers that were received by the plaintiff prior to 28th day of July 2005 as graphically shown in table hereunder together with a breakdown of the vessels and computations.
40. Whereof the defendant/counter claimant claim against the plaintiff as follows:-
(a)The sum of N114,387,850.00 (One Hundred and Fourteen Million Three Hundred and Eighty-Seven Thousand Eight Hundred and Fifty Naira) being the amount due the defendant/counter claimant from the plaintiff in respect of unremitted charges or rents on all containers that were received and handled by the plaintiff as a bonded Container Terminal Operator between 28/07/05 to 5/02/07 as tabulated above and from 5/02/07 to when the sum is totally liquidated.
(b) Interest at the rate of 22% per annum until judgment and thereafter at 11% until the entire debt is liquidated.
(c) A Declaration that the Plaintiffs continuous possession and occupation of the property the subject matter of this suit is illegal and without the authority of the defendant.
(d) A Mandatory Order discharging the interlocutory injunction obtained against the defendant in this suit.
(e) An Order mandating the plaintiff to yield up the possession of the property/premises known and described as Plot Gil measuring 7,445m2 TICP Industrial Estate Tin Can Island the subject matter of this suit which it has been on illegal possession and occupation of, to the defendant.
(f) An Order that an aggregate sum of N20,000,000.00 (Twenty Million Naira) be paid to the defendant being special damages for the grave losses suffered by the said defendant premised on the continuous unauthorized, and illegal possession and occupation of the subject matter of this suit more particularly the cost and inconveniences the defendant/counter claimant suffered in transporting containers formally designated for the premises being illegal occupied by the plaintiff to Ikorodu area of Lagos State as particularized hereunder.
PARTICULARS OF SPECIAL DAMAGES
By unauthorized entry and converting of the landed property without the technical approval and/or consent of the defendant thereby destroying and defacing the original purpose of use for which the property was meant and estimated cost of now converting the said property back to its intended original purpose and use to gether with the attendant inconveniences associated therewith N20,000,000.00.
(g) General exemplary and aggregated damages in the sum of N30,000,000.00 (Thirty Million Naira) for trespass and unauthorized occupation and continuous possession of the subject matter of this suit which has accordingly without the technical approval and/or consent of the defendant been altered unilaterally by the plaintiff to suit and/or serve its business as a bonded warehouse operator together with associated inconveniences bordering on loss of substantial accruable revenue to the defendant.
(h) Mense profit due on the pr emises situate, known and described as Plot 11 G11 Tincan Island Port measuring 7,445m2 from 31st of March 2005 to when judgment is entered in favour of the defendant and possession given up.
(i) Cost of the action.”
At the trial of the suit, the appellant and the respondent called one witness each to testify on their respective behalf, and at the conclusion of the trial parties were ordered to file written addresses and also the reply on points of law. The learned trial judge, in a reserved judgment, on the 20th January, 2009, entered judgment in favour of the respondent (Pages 615 – 634 record refers.) It is against the said decision that the appellant has now appealed to this court vide its notice of appeal dated 11th day of February 2009 and containing four grounds of appeal, evidenced at pages 635-640 of the record. The appeal was duly entered in this court on the 21st January, 2010.
In accordance with the rules of court, briefs were filed and exchanged between parties. While that of the appellant was dated and filed on the 22nd January, 2010 within time, the respondent’s brief was also, timeous with same dated and filed 5th February, 2010. The learned counsel Messrs B. Dambo and A. M. Makinde in company of other counsel represented their respective clients and accordingly adopted and relied on their briefs of arguments. On the totality, the appeal was sought to be allowed on behalf of the appellant but a dismissal was sought for and as submitted by the learned respondent’s counsel.
From the four grounds of appeal raised, three issues were formulated on behalf of the appellant and are as follows:-
“(1) Whether going by the peculiar facts and circumstances of this case the learned trial judge was right in invoking the doctrine of waiver to deprive the appellant the right to possession of the subject premises from the Respondent an adjudge trespasser.
(2) Whether the learned trial judge was right in awarding General damages of N2,000,000.00 (Two Million Naira) in favour of the Respondent.
(3) Whether the learned trial judge was right in coming to the conclusion that he found no merit in the counter claim without a proper evaluation of the evidence adduced by the Appellant to substantiate its claim.
Three issues were also formulated on behalf of the respondent and same will also be reproduced though not too dissimilar from those of the appellant.
“(1) Whether evidence before the court below established that the appellant had waived its right under the lease to CAPL after it Sublette to the Respondent to avail the Respondent the plea of the doctrine of waiver?
(2) Whether this court ought to interfere with the award of general damages of N2,000,000.00 awarded against the appellant in favour of the respondent by the trial court?
(3) Whether the Appellant proved its counter claim?”
The 1st issue raised by both parties relates to the applicability or not of the doctrine of waiver which was invoked by the lower court and thereby depriving the appellant of the right under the lease to CAPL after it Sublette to the respondent. In other words and going by the circumstances of this case whether the plea of the doctrine of waiver avails the Respondent?
Submitting and to substantiate the issue, the learned appellant’s counsel positly dwelt on the deduction and conclusion arrived at by the lower court at page 633 of the record and submitted that the conclusion constituting a waiver was without properly evaluating the respective facts against the testimonies of PW1 and DW1 during the trial. Learned counsel outlined what amounts to the principle of waiver and cited in support the case of Auto Import Export v Adebayo (2005) 19 NWLR (Pt.959) 44 at 122. That exhibit “M” which serves as the hub of the transaction explains the antecedents as it relates to the issue of tenancy and the historical mode/pattern of payment of rent on the subject premises. The learned counsel while borrowing the language of Niki Tobi JSC in the case of Odutola v Papersack (Nig.) Ltd. (2006) 18 NWLR (Pt.1012) p.470 equated Exhibit M as “Alpha and Omega” as it begins and ends the content of the yearly tenancy in the transaction. That to enable this court arrive at the true position of the law as regards the contents of Exhibits “E” and “E1”, that consideration has to be taken of Exhibit “M” which is the original lease document in favour of the bonafide tenant (CAPL) for a term of twenty-one (21) years commencing from 1st February, 1981 to 31st December 2002. Considerable analysis was placed on the various documents tendered at the lower court and consequent upon which counsel submitted that what was contemplated and paid by the respondent to the appellant was not rent perse but mesne profit. This he argued because even before the sums contained in Exhibits E & E1 were collected by the appellant, that it had served various notices to the respondent to quit the premises (Especially Exhibit “N3” premised on the Respondent’s status as a trespasser, counsel to buttress his submission cited the cases of Ayinke v Lawal (1994) 7 NWLR (Pt.356) p.263 at 266-267, Odutola v Papersack (Nig.) Ltd. supra, at pages 493 to 494, and NBCI v Integrated Gas Nig. Ltd. (2005) 1SC (Part 1) page 133 at 148-149.
Counsel emphatically asserted the error of law committed by the learned trial judge therefore when he pronounced in his judgment that the appellant waived its right to possession of the subject premises because containers were stemmed to the premises, without taking into cognizance, that:
(a) The bonded terminal operation contract was quite distinct from the issue of the location where the containers are to be stemmed to, which premises is to be provided by the Respondent and the subject premises is not in anyway tied to the contract.
(b) At the time the Respondent moved into the premises, it was the bonafide tenant (CAPL) that were recognized as the tenant who held over till sometime in 2003 after its tenancy expired in 2002.
(c) The Appellant never responded to Exhibit “D” and never accepted to the lease of the premises the subject matter to the Respondent.
That Exhibits “C” & “D” are documents through which the Respondent’s applied for the supply of slabs and leasing of the subject premises. That the slabs were not supplied by the appellant as alleged but by a company known as Julius Berger as contained in Exhibit “G” per pages 469-589 of the record. That the Respondent did not also lead evidence to show that the appellant acquiesced or agreed to the contents of Exhibit “D”. That the said Exhibits C and D are therefore completely irrelevant as they could not have been a basis for invoking the doctrine of waiver. Counsel cited further in support the case of NBCI v Integrated (Nig.) Ltd. (2005) 1 SC (Pt.1) page 133 at 149.
That the respondent is nothing more than a trespasser and cannot therefore use the doctrine of waiver to establish a cause of action or shield when in fact it has perpetrated an illegal act. That a number of authorities have been cited in support of settled principle that a party which has committed an illegality cannot be allowed to benefit from same. The following authorities are relevant in support:- Saleh v Monguno & Ors. (2006) 7 SC (Part 11) 97 at 118; African Petroleum Ltd. v Owodunni (1991) 8 NWLR (Pt.210) 391 and Ayinke v Lawal (1994) 7 NWLR (Pt.356) 263 at 282. Learned counsel submitted further that the Respondent never pleaded in its amended statement of claim dated 31st March 2008, facts which were represented to it by the Appellant, upon which it acted, thereby necessitating the invocation of the doctrine of waiver by the learned trial judge. That the issue of waiver was, for the first time raised in the plaintiffs’ final address dated 20/08/08 at pages 507-513 of the record. Counsel forcefully argued the failure of the trial court for not properly evaluating the Exhibits tendered before it. That a court is not competent to make a case for the parties different from the one they made out for themselves. That the appellant had continuously insisted on its right to possession of the premises and has always stated that the occupation of the Respondent was wrongful and illegal on the subject premises. That the law is trite that where a trial court fails to properly evaluate the evidence before it (as has happened in this case) this court will intervene in order to save the situation. That this court is also as good in a position as the trial court to examine the entire documentary evidence placed before the trial court and draw its own inferences and come to its own conclusion. Learned counsel cited in support the cases of Bunge v Governor of Rivers State (2006) 12 NWLR (Pt.995) 573 at 629 and Gbadamosi v Dairu (2007) 3 NWLR (Pt.1021) 282 at 302. That in the instant case where the primary complaint is against the non evaluation of the evidence tendered before the court, that the Court of Appeal is in a good position as the trial court to do its own evaluation and make proper findings. Learned counsel cited in support the cases of Eyo v Inyang (2001) 8 NWLR (Pt.715) 304 at 326 and Onisaodu v Elewuju (2006) 13 NWLR (Pt.998) p.517 at 528. That all the facts the learned trial judge hinged his pronouncements on were not tenable in law and could not therefore support the invocation of the doctrine of waiver. That it was also established that the Respondent is a trespasser going by the decision in the case of Nnodi v Thanks Investments Limited & Anor. (2005) 11 NWLR (Pt.935) 29 at 55-56.
Learned counsel submitted further that without obtaining the requisite written consent contrary to paragraph 9 of Exhibit “M” the trial judge could not regularize or legalize an illegal act by applying the principle of waiver to the detriment of the Appellant thereby occasioning a miscarriage of justice. That there is indeed no breeding place for the doctrine of waiver as invoked by the learned trial judge to buttress the facts which he relied on. Learned counsel urged that this court should carry out a proper evaluation of all the documentary evidence tendered in this case at the trial stage in a bid to arriving at a just conclusion and finding in accordance with the decision of the Supreme Court in the case of Bunge v Governor of Rivers State (supra). Learned counsel on the 1st issue urged therefore that it be resolved in favour of the appellant. That the law will not aid a wrong doer or a party which commits an illegality. Finally on this issue, that the facts relied on by the learned trial judge as constituting waiver of the appellant’s rights to insist on the possession of the subject premises are not tenable in law.
Submitting in response to the appellant’s counsel on the question of waiver, the learned respondent’s counsel referred to page 469B of the record which was the testimony of the appellant’s witness. Counsel submitted that the knowledge of the appellant in respect of the moving of the Respondent to the premises in 2001 and the failure to take any step in 2002 when the Lease to CAPL expired despite knowledge of the subletting to the Respondent constitutes acts of waiver of its right under clause 9 of Exhibit M. The learned counsel related to a number of Exhibits which are documents of the appellant stemming vessels to the respondent from year 2001-2004 at the subject matter. That the appellant even when it became aware of the respondent’s occupation of the subject matter, non the less still continued to stem vessels to the respondent which amounts to an act of waiver of its right under the Lease with CAPL. Further still, that the appellant never served any notice of intention to recover possession when it became aware of the breach by CAPL in July 2001 either on CAPL or the respondent.
Learned counsel in further submission re-iterated that with the acceptance of rent at the expiration of Lease to CAPL, failure to serve notice to recover possession after becoming aware of the breach as well as stemming of vessels by the appellant to the Respondent on the subject matter all constitute acts of waiver of right by the appellant, and the consequence which transmuted the respondent into a tenant of the Appellant. Counsel cited with approval Megarry and Wade, Learned author of Law of Real Property Fourth Edition at page 657 on the constituents of waiver of a breach of covenant in Lease.
The learned counsel affirmatively argued that the appellant in this case was aware of the act of its tenant (CAPL) subletting to the respondent which constitutes a breach of covenant in Exhibit M and that the collection of rent, stemming of vessel to the respondent are unequivocal acts of the Appellant recognizing the continued existence of the Lease and consequently a waiver of its right under the said same thereof.
The learned counsel, to buttress his submission further cited a number of authorities which are as follows:- Doed Datehouse v Rees (1838) 4 Bing N.C 384; Goodright .d. Charter v Cordwent (1795) 6 .T.R. 219; also those of the Supreme Court in Bank of the North vs Alhaji Bala Yan (2001) 5 S.C. (Pt.11) 121 and Olatunde vs Obafemi Awolowo University (1998) 4 S.C.91 where the proposition in Megarry and Wade Law of Real Property (supra) was re-iterated. Counsel, on the premise, emphasized that this serves sufficient to avail the Respondent’s reliance on the doctrine of waiver. Counsel also relevantly relied on the case of Auto Import Export v Adebayo (2005) 12 SC (Pt.11) page 74 at 125-127 wherein the concept of waiver was defined. He therefore submitted emphatically that the acts of the appellant in respect of the available evidence were voluntary and intentional and thus surrendering its right to insist on forfeiture of the Lease by CAPL when it breached clause 9 of Exhibit M. Counsel also submitted that the issue should in the circumstance be resolved in favour of the respondent against the appellant.
The 1st issue for consideration poses a question whether the evidence before the court below established that the appellant had waived its right under the lease to CAPL after it Sublette to the Respondent? In other words, and having regard to the evidence before the court, does the plea of the doctrine of waiver avail the Respondent and as arrived at by the learned trial court in its judgment?
It is pertinent to state that at the conclusion of the trial, the court after hearing of witnesses and addresses of counsel formulated a lone issue at page 632 of the record and upon which the judgment of the court was determined. The court in other words had this to say:-
“From the entire evidence before me, there is only one issue to be resolved. That is whether the defendant has waived its right to claim the property from the plaintiff.”
In its said judgment delivered on the 23rd January, 2009 and at page 633 of the record, the court summarized the facts giving rise to the doctrine of waiver whereon the judgment was anchored and went on to state as follows:-
“Let me state here that the plaintiff paid rent to the defendant, the defendant continued to stem vessels to plaintiffs terminal, the defendant also received plaintiffs application to lease the said premises, defendant also approved slabs for rehabilitation of the terminal, these in my view are facts that will suggest to the plaintiff that defendant will not turn around to insist that CAPL had no right to sub-let the premises, I hold that the defendant waived their right, and cannot therefore claim that plaintiff is a trespasser.”
In other words the court held in summary that the principle of waiver operated against their possessory right to the res subject matter of this appeal.
As a principle of general rule, the concept of waiver is denote on intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to same which he would have insisted upon. It is in succinct, an abandonment of a right. This principle has been well defined and enunciated by their Lordships of the apex court in the case of Auto Import Export v Adebayo under reference supra, and wherein Ogbuagu JSC has this to say at page 122 of the report:-
“The concept of waiver, is said to be that a person who is under no legal liability and having full knowledge of his right or interest conferred on him by law, and who intentionally, decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted to exercise those right or that he has been denied the enjoyment of those interests. See Ariori & Ors. V Elemo & Ors. (1983) 1 SC 13 at 48-49; …(1983) 1 SC NLR 1 at 25 per Eso, JSC; Elomo v Oyakhire (1985) 1 NWLR (Pt.2) 195; Adegoke Motors Ltd. v Dr. Adesanya & Anor. (1989) 3 NWLR (Pt.109) 250 at 292… to amount to a waiver-express or implied, two elements it is settled, must co-exist, namely:-
i. The party against whom the doctrine is raised, must have knowledge or be aware of the act or omission which constitutes the waiver and
ii. He must do some unequivocal act adopting or recognizing the act or omission, see Olatunde v Obafemi Awolowo University & Anor. (1998) 5 NWLR (Pt.567) 178… Ariori & Ors. V Elemo & Ors. (supra) were referred to.”
In order to establish a waiver, it must therefore be shown, that some step has been taken which is only necessary or only useful if the objection has been actually waived or has never been entertained. See Dr. Saraki v Kotoye (1990) 4 NWLR (Pt.143) 144; (1190) 6 SCNJ 31.
Also in the case of Ariori & Ors. V Elemo & Ors. (supra) which was referred to in the authority of Odu’a Investment Co. Ltd. v Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe JSC, at page 22 of the NSCC Report while defining the word waiver, had this so say:-
“By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which as his option, he could have insisted upon.”
Obaseki, JSC on his part at page 25 of the same report, opined as follows:-
“Waiver is according to Words and Phrases legally defined, Vol.5 p.301 1969 Edition- reprinted 1874 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision, may waive it and allow the transaction to proceed as though the provision did not exist.”
Further more and in the case of Carribean Trading & Fidelity Corporation v NNPC (1992) 7 NWLR (Pt.252) 161 at 185, Tobi, JCA, as he then was had this to say:-
“Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a court of law will hold that he has waived his right.”
The learned respondent’s counsel by his submission as to what constitutes a waiver, cited the case of Auto Import Export v Adebayo supra, wherein the definition relates to “the intentional and voluntary surrender of a known privilege or right by a party entitled to same which at his option he could have insisted upon.” Deducing from the entire case before the trial court the appropriate question to pose is, did the acts of the appellant reveal from available evidence as to depict voluntary and intentional surrender of its right thus amounting and occasioning a forfeiture of the Lease by CAPL on account of breaching clause 9 of Exhibit M? While the learned appellant’s counsel submitted in the negative, that of the respondent was to the contrary.
The reproduction of Exhibit M at page 579-582 of the record of appeal and specifically clause 9 is relevant especially where the appellant hails the document as “the alpha and omega in the sense that it begins and ends the content of the yearly tenancy in the transaction. It says it all.” Exhibit “M” is the original lease document in favour of the tenant (CAPL) for a term of twenty one (21) years commencing from 1st February 1981 to 31st December 2002. Paragraph 9 of the said document at page 579 of the record of appeal states as follows:-
“(9) Subleasing:- Lessee not to sublet transfer or otherwise part with demised property without the prior written consent of the Authority, nor create any legal or equitable interest and lessee within specified time to give details of approved assignee or transferee to the Authority.”
The learned respondent’s counsel tenanciously anchored his submission on the evidence of the appellant’s only witness at pages 469B-469C of the record to support his argument that the appellant was aware that the respondent had moved into the subject matter in 2001 as a result of the subletting by CAPL. The said witness while testifying as DW1 at page 461 of the record had this to say:-
“Paragraph 9 prohibits sub-setting are (sic) gave no consent for sub-lease… We collected estate rent from plaintiffs. They are not tenant to the defendant. Though they applied to regularize it was not accepted because they came without consent of the defendant.”
Under cross examination at pages 469B-469C the witness further had the following to say amongst others.
“CAPL was the original tenant of defendant, the lease expired in 31st December 2002 that is CAPL tenancy. Plaintiff move into the premises in 2001. Plaintiff applied for lease after they entered the premises this is Exhibit C, …When we became aware that CAPL sub let the premises, we took steps in 2002. I am not aware that plaintiff paid to CAPL. Defendant collects rent from plaintiff …I have looked at the receipts they are not temporary, the occupation is stamps the receipts do not bear “temporary occupation.”
Also at page 469G under re-examination the witness further said:-
“…We collected rents on basis of temporary occupation. Exhibit E is a receipt issued by Defendant, the cheque issued in respect of Exhibit we returned unpaid, up to today the money has not been paid.”
The evidence by the plaintiff/respondent per their only witness by name one Larry Peters Bawa, is also relevant and a certain portion which would be appropriate reproduce. At page 433 for instance the witness had this to say in his evidence in Chief:-
“On getting to Nigerian Ports Authority, we found that Macgregor was acting for CAPL; and expiration of their tenancy was 2002. Nigerian Ports Authority said they were not renew for CAPL … The tenancy was not renewed. Ojutalayo asked us to come and renew this is a copy of the letter, asking us to come and renew.”
The letter was tendered, and rejected. Witness further continued and said:-
“By the time we met in Nigerian Ports Authority they advised us to make application we ask them tell us who to pay; they said they were renew the rent and if they are done they will communicate to us. I made series of payment to the defendant these are some of the payments we made to Nigerian Ports Authority, demand notes on receipts.”
Two payments receipts to Nigerian Ports Authority by the plaintiffs were admitted as exhibits E and E1 respectively.
In his submission and taking into consideration the effect of Exhibit M along side Exhibits E and E1, the learned appellant’s counsel argued the failure of the respondent per their witness PW1 to have adduced proper and credible evidence to show that apart from Exhibits “E” and “E1” any other alleged rent was paid.
It is pertinent to recapitulate again on the judgment of the trial court as contained at pages 615 to 634 of the record of appeal. The learned trial judge therein summarized the entire claims of the plaintiff, the defendant’s defence as well as it’s counter claim and thereafter proceeded to formulate the lone issue relating to waiver at page 632 of the record and consequent upon which he arrived at his findings at page 633 which was reproduced earlier in the course of this judgment.
In his further submission, the appellant’s learned counsel also lamented and re-iterated the absence of proper evaluation of the entire exhibits admitted by the learned trial judge. That, if he had so evaluated, he would not have relied on the doctrine of waiver for the determination of the case.
Deducing from the judgment and conclusion arrived at by the learned trial judge, it is certainly expected and of necessity that the question of waiver ought to have been considered in the light of the claim; pleadings of parties, evidence of the witnesses and the exhibits tendered and admitted. In other words, it is not enough to summarize the facts of a case, evidence adduced, submission of counsel, and thereupon proceed to make a pronouncement without evaluating the entire evidence adduced as well as exhibits admitted. This is not the case in the matter at hand wherein no consideration whatsoever was made to the numerous exhibits admitted by the court. It is also very clear from the evidence of the witnesses PW1 and DW1 which were not considered, in any material particular or even at all.
The formulation of an issue for determination bordering solely on the doctrine of waiver, without first properly evaluating other documentary evidence was grossly out of place and amounting to making a case for the parties different from that which they made out for themselves as rightly submitted by the learned appellant’s counsel. The confirmation of this is obvious having regard to the claim of the plaintiff/respondent at pages 446-447 of the record of appeal wherein at paragraph 15 of the Amended Statement of Claim it sought for four reliefs which had been earlier reproduced in the course of the judgment.
Also at pages 359-368 of the record of appeal, the defendant/appellant in its amended statement of defence and counter claim denied the said plaintiff/respondent’s claim and went further to counter claim against it. The counter claim relates to unremitted charges or rents on all containers that were received and handled by the plaintiff and interest thereon at the rate of 22% per annum until judgment and thereafter at 11% until entire debt is liquidated. Also declarative, mandatory and other sundry orders relating special and general damages were further sought for.
In the case Spasco Vehicle and Plant Hire Co. v Airline (Nigeria) Ltd. (1995) 8 NWLR (Pt.416) 665 at page 669 their Lordships of the apex court per Iguh JSC made a following deductions and said:-
“It is an elementary and fundamental principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties in their pleadings. It is not competent for the trial court suo motu to make a case for either or both parties and then proceed to give judgment on the case of the parties before him… This principle of law is without doubt in accordance with common sense as to permit trial courts to wander out of issues raised by the parties in their pleadings and to found their judgment on such issues could not only take the parties by surprise and make nonsense of pleadings, it might well result in the denial to one or the other of the parties of the right to fair hearing pursuant to the audi alteram partem rule as enshrined in the 1979 Constitution of Nigeria.”
The learned appellant’s counsel in his submission questioned the competence of the lower court in making a case for one of the parties as it is with the case at hand. The determining factor would therefore call that recourse be had to the reliefs sought by the appellant and relating same to the issue that called for determination and as drawn from the pleadings of parties.
In other words and taking the congruent overview of the reliefs sought by the respondent vis a vis the issue drawn and formulated by the learned trial judge which are all clearly stated in the course of this judgment supra, one has no hesitation in concluding and agreeing with the arguments by the learned appellant’s counsel that the claim that led to the reliefs sought is apparently divergent to the issue formulated by the trial court. As a consequence, the learned appellant’s counsel had therefore called on this court to invoke its power under section 15 of the Court of Appeal Act and assume the jurisdiction as if it were court of first instance and determine the case between the parties. This, counsel submitted, is in view of the fundamental nature of the issue of evaluation of evidence to the due determination of the instant case.
As a general principle of law and also well enunciated, the appraisal and evaluation of evidence are the primary function of the trial court. Where the said court however fails to appraise and evaluate the evidence or improperly evaluate the evidence and fails to make specific findings of facts on points which are crucial to the proper determination of the case before it, the appeal court has the duty to interfere with the judgment and evaluate or re-evaluate such evidence and make proper findings of fact. The learned appellant’s counsel has drawn the court’s attention to the said principle of law as laid down supra and urged that same be applied to the case at hand. The question however is whether this court can in the circumstance invoke the said section 15 of the Court of Appeal Act under reference relating its general powers as provided there under? The reproduction of the relevant and appropriate applicable part of the section states as follows:-
“The Court of Appeal… Generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the power of that court…”
In the case of Nwokoro v Nwosu (1994) 4 NWLR (Pt.337) 172 at page 189 this court per Onalaja JCA said thus:-
“Where the court of trial has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, the Court of Appeal has no business interfering with its findings on such evidence Atolagbe v Shorun (1985) 1 NWLR (Pt.54) 360; Obodo v Ogba (1987) 2 NWLR (Pt.54) 1 referred to.
As a general rule, when the question of the evaluation of evidence does not involve the credibility of witnesses but the complaint is against non-evaluation or improper evaluation of the evidence tendered before the trial court an appellate court is in as good a position as the trial court to do its own evaluation. Narumal & Sons Nigeria Limited v Niger Benue Transport Company Ltd. (1989) 2 NWLR (Pt.106) 730 at 742 followed.)”
It is pertinent to restate again that in the appeal under consideration, two witnesses testified with one on behalf of each of the parties. The lower court at pages 632 to 634 formulated the issue of waiver and forming the basis of the reason predicating the judgment. I would further wish to state also that throughout the judgment of the lower court appealed against, there is no question of reference made to the evidence of any of the two witnesses on behalf of the parties consequent upon which the judge made his findings. The numerous exhibits A – V admitted through the said witnesses were also not at all related to in the course of the judgment. In the light of the authority of the case of Nwokoro v Nwosu under reference supra, with the lower court in this appeal failing totally to evaluate the evidence of which of the witnesses to believe and why he gave judgment to the plaintiff/respondent, the measure taken has not met the expected criteria and the principle warranting the appellate court evaluating the evidence by trial court by invoking section 15 of the Court of Appeal Act. The invocation of section 15 of the said Act would properly apply where the matter in dispute has been completely narrowed down to inferences that could be drawn from proved facts without going through the rigour of credibility of witnesses. See the case of Akinloye v Eyiyola (1968) NMLR 92. It is the trial court that observe the demeanor of witnesses and that is peculiar and exclusive to the said court, and which would never be within the competence of the court of appeal.
At pages 186 – 187 of the case of Nwokoro v Nwosu supra for instance, this court has laid down a number of principles to be applied in the course of reviewing the findings of fact made by a trial court. The court in other words said:-
“An Appeal Court in applying these principles should I venture to suggest:-
(a) Start with an attitude to the trial court, as the only court which has principally, the duty to make findings of fact from the evidence/oral and or documentary/before it, also that the trial court is the court that has been specially suited by its peculiar constitutional set up and rules so to do. (The trial Judge sees the witnesses and has the exclusive advantage to observe their demeanour).
(b) then find out whether the conclusion which has been arrived at by the trial court is justifiable when it is re-examined against the very premise and or the controversy vel non which formed the basis of the conclusion arrived at by the trial court.
(c) where the conclusion is arrived at without any real controversy e.g. in the case of documentary evidence, or where it does involve a controversy the controversy is limited only to number, complexity or contradiction or interpretation of the document or further where there is oral evidence but it involves merely an admission by the adversary or there is an unchallenged piece of oral evidence, the Court of Appeal should consider itself to be in as good a position as the trial court, in so far as the evaluation of such evidence as aforesaid in this paragraph is concerned.
(d) where the decision is arrived at after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in the case to contradict each other by oral evidence then the Court of Appeal should appreciate that the following will be relevant.
(i) Credibility of witnesses based on demeanours of the witnesses only:- Here, the trial court is the sole judge as the observation of the demeanour of witnesses has to be peculiar and exclusive to the trial court which advantage is not and can never be available to the appellate court.
(ii) Credibility of witnesses based on factors other than demeanour:- The Court of Appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its finding and determine whether that the trial court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the inference that could reasonably be made by a just and reasonable tribunal from the same factors”.
The use of the word “fact” presupposes that a particular situation exists; a thing that is tangible as it is known to be true and therefore is subject to proof. Facts are not inventory and imaginary but realities of existence. A trial court as a court of fact and evidence is placed in a position of eminence over and above the higher courts as far as evaluation of evidence is concerned. That privilege and priority is within the exclusive prerogative of the trial court as akin to Exclusive Legislative List under the Constitution.
In support of the principle underlying, the attitude of appellate court as to when to interfere therewith the evaluation of evidence by trial court, the following authorities are relevant Maya v Oshuntokun (2001) 11 NWLR (Pt.723) 62; Zangima v Comm. Of Works, Borno State (2001) 9 NWLR (Pt.718) 382; Walda v Maizare (2001) 4 NWLR (Pt.704) 557; Enilolobo v Adegbesan (2001) 2 NWLR (Pt.698) 611; Alabi v Oloya (2001) 6 NWLR (Pt.708) 37; Iko v State (2001) 14 NWLR (Pt.732) 221 and Khawani v Akinkugbe (2001) 13 NWLR (Pt.729) 70.
Furthermore and on the principle as to when an appellate court may evaluate evidence, the apex court in the case of Nnorodim v Ezeani (2001) 5 NWLR (Pt.706) 203 is relevant wherein at page 210 Iguh JSC had this to say:-
“It seems to me plain that they are matters and/or issues which may only be resolved by viva voce evidence in the course of which the credibility and veracity of the witnesses concerned, based on their demeanour and bearing as they testify in the witness box, may be assessed. It is my view that having regard to these relevant issues which the trial court failed adequately to consider and resolve, the court below was perfectly right to have allowed the appeal before it and to order a retrial of the case. This is because where an appeal is allowed on the ground of failure of the trial court to resolve relevant issues and to make findings on material facts, and the determination of such material issues and/or facts, as in the present case, depends on the credibility of witnesses, the proper order to make in such circumstance is that of a retrial of the suit. See Karibo v Grend (1992) 3 NWLR (Pt.230) 426.”
Also in the case of Oshatoba v Olujitan (2000) 5 NWLR (Pt.655) p.159 at 175, the apex court again per Iguh JSC ruled that:-
“An appellate court will not ordinarily interfere with the findings of fact of a trial court except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses or where it has drawn wrong conclusion from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse and do not flow from the evidence accepted by it.”
The same conclusion was arrived at in the case of Ejefor v Okeke (2000) 7 NWLR (Pt.665) page 363 and applying the same principle of law.
Furthermore and in the case of Akintan v Adeniyi (2001) 10 NWLR (Pt.722) p.695, Oguntade JCA (as he then was) in delivering the lead judgment held and ordered for retrial of the entire case especially in the absence of the lower court giving any reason for arriving at its decision. The trial court in that case was held to have failed to take advantage of its seeing and assessing the credibility and demeanor of the witnesses. The same principle of law was also applied and laid down in the case of Ndulue v Ojiakor (2001) 14 NWLR (Pt.734) 717.
In a further authority of the case of Oduwole v Aina (2001) 17 NWLR (Pt.741) page 1 at page 44, Tabai JCA (as he then was) on the same related issues pronounced that the proper order to make in such a situation of improper evaluation of the witnesses is to remit the case for a retrial de novo before another judge.
Deducing from the foregoing authorities and in particular that of Nnorodim v Ezeani as well as those of related similarities (supra) it is obvious that the matter in the present case shows clearly that material issues were left unresolved by the trial court who did not at all attempt to evaluate the evidence inclusive of the exhibits adduced and tendered before the court. Such issues were evidently deduced from the pleadings of parties, evidence of the two witnesses to the parties, and also the exhibits. The issues in my view are not those that this court sitting as an appellate court can invoke section 15 of the Act supra and proceed to resolve from the printed record or by drawing inferences from any proved facts. In other words, they are clearly issues that necessarily need to be resolved by viva voce evidence and hence the significance of having to assess the credibility and veracity of the witnesses concerned. This duty has been abdicated by the trial court and thus constituting a very serious error.
The gravity and serious nature of the error is more obvious having regard to the way and manner the learned trial judge treated the counter claim of the defendant/appellant. This I say because at page 633 of the record of appeal for instance, the learned trial judge had this to say.
“I find no merit in defendant’s counter claim. I hereby dismiss same.”
For all intent and purposes, this is the beginning and end of the entire consideration given to the counter claim before the court. There was no more and no less.
It is trite and elementary to state the general principle relating a counter claim. In other words it is an independent action distinct from the main claim and governed by the same rules of pleading as statement of claim, with a reply to it by the same rules as a defence. See Odger’s Principles of Pleading and practice 21st Edition page 200. It needs not be an action of the same nature as the original action. See also Bowen L. J. in Amon v Bobbett (1889) 22 QBD 543 at 548.
Legally and historically speaking, the existence of a counter claim is a creation of statute; i.e. by section 24(3) of the Judicial Act 1873 which is an English Statutes of general application which is applicable to Nigeria as part of our law. The courts under the statute are given power to give a defendant in the plaintiffs’ action such relief, both in respect of legal and equitable rights, as is properly claimed by his pleading and could have been given in a separate action. See Effuom v Ironbar (2000) 11 NWLR (Pt.678) p.344, also Igbinovia v Agboifo (2000) 12 NWLR (Pt.681) p.336.
It is trite also that by its very nature, a counter claim, like the main claim must also be proved to the satisfaction of the trial court as it is required by law. In the absence of any consideration made to the evidence of any of the witnesses, it is not deducible on what the trial court based its one sentence pronouncement. Suffice to say therefore that the learned trial judge was in great error in failing to properly evaluate the evidence adduced before him consequent upon which his pronouncements should have been based. The Consequential effect is to resolve the said issue in favour of the appellant.
Issues 2 and 3 are predicated on the 1st issue which have been found to be erroneous and grossly wanting and defective of proper evaluation and conclusion arrived thereat. As a result therefore the determination of the said two issues would only amount to an academic exercise.
For the scale of justice to be properly balanced, there must be adequate evaluation of all the materials placed before the court on behalf of both parties. The tilting of the pendulum therefore ought to be as a result of such objective weighing exercise. The outcome of issue 1 has in the circumstances determine issues 2 and 3 and consequent upon which the appeal succeeds.
In the final analysis, I therefore make an order that the case be remitted back to the Chief Judge of the Federal High Court for purpose of re-assigning to another judge for proper hearing and determination on the merit. I also make no order as to costs.
ADZIRA GANA MSHELIA, J.C.A: I read before now the judgment of my learned brother Ogunbiyi, J.C.A. just delivered. I agree with the reasoning and conclusion arrived thereat. I have nothing useful to add but to adopt same as mine. For the same reasons stated in the lead Judgment, I too allow the appeal and set aside the judgment of the trial court delivered on the 20th January, 2009. The proper order to make in the circumstance is to remit the case back to the Chief Judge of the Federal High Court for re-assignment to another judge for the purpose of hearing and determination ‘denovo’. I abide by the order made as to costs.
HUSSEIN MUKHTAR, J.C.A: I have had the advantage of a preview of the judgment just rendered by my learned brother Ogunbiyi, HCA. I am in absolute agreement with the reasoning and the conclusion that the appeal is meritorious and ought to be allowed. While adopting the reasons and conclusion in the lead judgment as mine, I also order that the judgment of the court below delivered on the 20th January 2009 be set aside and the case be reassigned by the Chief Judge of the Federal high Court for retrial de novo before another judge of the court. I similarly adopt other consequential orders made therein inclusive of the one as to costs.
Appearances
Mr. B Dambo with Mr. O. Uko and Sarah Taiwo (Miss)For Appellant
AND
Mr. A. M. Makinde with C. N. Obasi and A. Ude OlisaFor Respondent
