NZEM v. NWAIKWU & ORS (2020)

NZEM v. NWAIKWU & ORS

(2020)LCN/15489(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/OW/308/2014

RATIO

EVIDENCE: RELEVANCE OF A DOCUMENTARY EVIDENCE

A documentary evidence is the best evidence and speaks for itself, and cannot be modified, altered or defeated by parol representation. See Awolaja & Ors Vs Seatrade Groningen B.V. (2002) LPELR – 651 SC; (2002) 4 NWLR (Pt. 758) 520; Ashaka cem Plc Vs Mubashshurun Investment Ltd(2019) LPELR – 46541 (2018) (SC); Ugwuegede Vs Asadu & Ors (2018) LPELR – 43717 (SC); Ukaobasi Vs Nwabueze (2017) LPELR – 42420 (CA). PER ITA GEORGE MBABA, J.C.A.

JOINDER OF PAERTIES: WHETHER NON JOINER OF A PARTY OR MISJOINDER OF A PARTY MAY DEFEAT THE CLAIM OF A PLAINTIFF

It is also the law, that non joiner of a party or misjoinder of a party shall not defeat the claim of a Plaintiff, where the substance of the suit, can be determined, or has been determined between the parties, effectually and completely. See Sapo & Anor Vs Sunmonu (2010) Vol. 189 LRCN 26, at 52:
“It needs to be borne in mind always and this is also settled that no cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties…”
See also Bello Vs INEC & Ors (2010) LPELR 767 SC; (2010) 8 NWLR (Pt. 1196)342; Umezinne Vs FRN (2018) LPELR – 46334 (SC). PER ITA GEORGE MBABA, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

ANTHONY NZEM APPELANT(S)

And

1. HENRY NWAIKWU (Suing By His Attorney Okwudiri Ofor) 2. ALEX EDEM 3. OKWUDILI OFFOR RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of Abia State High Court, in Suit No. HU/211/2006, delivered by Hon. Justice Onuoha A.K. Ogwe, on 25th September, 2013, wherein the learned trial Judge granted the reliefs sought by the plaintiff and struck out the Counter claim by the Defendant, for incompetence.

At the lower Court the Plaintiff had sought the following reliefs by means of writ of Summons, filed on 10th October, 2006:
a) Declaration that the plaintiff is entitled to the statutory right of occupancy over the property or house at No. 42B, Road 2, situate at the Low-Cost Housing Estate, Umuahia in Abia State of an annual rental of N100.00 (One Hundred Naira) only, within the jurisdiction of this Honourable Court.
b) The sum of N4,000.000.00 (Four Million Naira) only, being special and general damages against the defendant for acts of trespass committed on the plaintiff’s aforesaid property or house, without the consent and/or authority of the plaintiff.
c) An injunction, permanently, restraining the defendant by himself, his agent, servants, privies or by anyone howsoever acting for him, from further entry into the plaintiff’s aforesaid property or house, now in dispute.
d) An Order of mandatory injunction requiring the defendant, his agents or assigns, upon the determination of this suit, to dismantle and remove the illegal building structures he is presently erecting besides the afore said property or house, now in dispute, without the authority of the plaintiff.
e) An Order of injunction directing the defendant, upon determination of this suit, to vacate same forthwith”.

Upon being served with the processes (including the statement of claim), the Defendant (now Appellant), filed his statement of defence and the Defendant raised a Counter-claim as follows:
a) A declaration that the Defendant is the owner in possession and is entitled to the statutory certificate of occupancy of the Plot, house, known as No.42B, Road 2, situate at the Federal Low Cost Housing Estate, Umuahia, within the jurisdiction of the Court.
b) N10,000.000 (Ten Million Naira), being damages for trespass into the said property.
c) Perpetual injunction restraining the plaintiff, his agents, heirs and/or workmen, from further trespass on the said land/house. See page 40 of the Records.

(It should be noted that the Records of Appeal carried Appellant’s statement of Defence on pages 15 to 20 of the Records, but mixed other processes with the statement of defence such that paragraph 15 of the statement of defence is on page 20 of the Records of Appeal, while the paragraph 16 thereof and the signature page are carried on page 40 of the Records of Appeal, posing much difficulties for this Court to trace the case of Appellant!)

After hearing the case and considering the evidence and addresses of Counsel, the trial Court had held for the plaintiff (Respondent) as follows:
“I prefer the issues formulated by the claimant’s Counsel. The parties agree that the house in issue belonged originally to the Federal Ministry of Works and Housing, which built the houses with mortgage loan from the Federal Mortgage Finance Ltd. Each party traces his title to the said Ministry. Each claims allocation to him from it. The onus is on the claimant to prove a valid and subsisting allocation to him. Claimant pleaded that the building was originally allocated to the Defendant before it was revoked. In proof, the claimant tendered Exhibits ‘A’ to ‘O’… I have painstaking by (sic) listed (sic) these documents to show that the Defendant was put on notice about the claim of Claimant and even of the Ministry. In one of the letters – Exhibit ‘H’, Mr. Edem of the Ministry referred Defendant specially to a breach of Section 3 (ix) of the allocation. Exhibit ‘A’ is the prototype of the letters of allocation. That Section 3 (ix) provides for loss of the allocated property, when the Allottee is in areas of repayment for three months. Defendant was aware that he was accused of defaulting in repayments, yet, I find no evidence of any concrete step he took with the mortgage company or the Ministry. He merely claimed to have paid the loan. Yet he did not tender the receipts or the discharge letter from Federal Mortgage, despite claiming that he had the letter. The effect of these, is that, apart from Defendant’s bare-faced claim of payment, there is nothing before me in support of same. The documentary evidence put forward by Claimant is overwhelming. I am satisfied that the property in dispute was regularly and validly allocated to claimant. It means that the Defendant’s occupation of same is illegal and unlawful… I find for the Claimant…” (See pages 144 – 146 of the Records of Appeal).

That is the judgment Appellant appealed against, as per the Notice and Grounds of Appeal, filed on 26/11/2013 (pages 147 to 149 of the Records, disclosing 2 grounds of Appeal). Appellant filed amended Notice of Appeal, and his brief of argument, on 1/2/2017, which was deemed duly filed on 4/4/2017. He donated the following issues for the determination of the Appeal:
1) Whether the lower Court properly and dispassionately evaluated the evidence before it in holding that the property in dispute was regularly and validly allocated to the claimant/1st Respondent (Grounds 1 and 2).
2) Whether the claimant/1st Respondent proved his case to entitled him to the judgment of the lower Court, in view of the manifest material discrepancies in his evidence particularly the documentary evidence (Grounds 3 and 6).
3) Whether, from the facts and circumstances of this case, failure to join Federal Ministry of Works and Housing and Federal Mortgage Finance Ltd as parties in this suit is fatal to the claimant/1st Respondent’s claim (Ground 4)
4) Whether the lower Court was not in error in joining Okwudiri Ofor as 3rd defendant in this suit when in fact, he sued the Defendant/Appellant as the Attorney of the Claimant/1st Respondent.

The 1st Respondent filed his Brief of Argument on 4/4/2017 and adopted the issues as distilled by Appellant, for the determination of the Appeal. Other Respondents filed no brief.

Arguing the Appeal, on 18/11/2020, Appellant’s Counsel, Eze Ukattah Esq, who settled the Brief, on issue one, said that the trial Court, completely, went wrong in its approach to the resolution of the dispute placed before it. He said that the duty of evaluation of evidence and ascribing probative value to same is the primary function of the trial Court, who saw, heard and assessed the witnesses while they testified before it; that appellate Court will not interfere with such findings, except in circumstances permitted by law – like where the decision of the trial Court is perverse, and where the lower Court failed, in its duty, to evaluate documents tendered in evidence. He relied on the case of Uka Vs Iroko (2002)12 MJ.S.C. Vol. 117 LRCN 132 at 146.

Counsel said that the trial Court had failed to properly examine the documents tendered, particularly, Exhibit A, which showed that the property had been allocated to the 1st Respondent in 2001, but he actually paid the fees for the allocation in 2008 (or is it 1908?). He referred us to the Exhibit F, which he said carried 2 different dates (but that the body of the said exhibit suggested the allocation was made on 8/5/08 – per Bank P.H.B. draft No. 50768712): Counsel said that evidence was incredible and unbelievable.

He referred to Exhibit K, dated 12/6/2003, and said it was probably made in anticipation of payment of the Mortgage loan by the 1st Respondent, on 19/6/2003. He referred us to Exhibit C-C1, dated 19/6/2003 (on page 152 of the Records) and said that it is unthinkable, that the payments, evidenced in Exhibits C-C1 and discharge letter (Exhibit B), were made on the same date – 19/6/2003; he said that the discrepancies in the evidence of the 1st Respondent, thus highlighted and buttressed Appellant’s point, that it was when the Federal Ministry of Works & Housing had destroyed his (Appellant’s) file, that they purported to have revoked allocation of the said house to him and purported to have allocated same to 1st Respondent.

Counsel said that Appellant had front loaded some documents in support of his case, but failed to tender them, out of oversight. He referred us to pages 21 to 39, particularly 25 and 26 of the Records. He urged us to look at those documents in the Court’s file, to determine the Appeal for him (Appellant). He relied on the case of Uzodimma Vs Izunaso & Ors (2012) Vol. 211 LRCN 153 at 200, on the power/right of a Court to look at a document in the file, while writing judgment, despite the fact that the document was not tendered and admitted in evidence at the trial. He argued that it is not in dispute, that a Court is entitled to look at such document in the Court’s file or records, and refer to it in consideration of any matter before it. He also relied onOyewole Vs Akande (2009) Vol. 177 LRCN 76. Counsel invited us to look at the said documents on page 21 – 39, particularly pages 25 – 26 of the Records, showing counterfoils evidencing repayment of the Mortgage loan, though not tendered in Court, due to oversight or inadvertence; he said that the documents supported the claims of Appellant, that he had completed payments of the Mortgage loan, since 1995. He added that, had the trial Court properly assessed the evidence before it, particularly, the documentary evidence, it would have come to the conclusion that 1st Respondent failed to prove his case. He urged us to resolve the issue for Appellant, and relied on the case of Nigeria Post Plc Vs Beecham Pharm Ltd (2005) 24 WRN 38 at 83; Obineche Vs Akusobi (2010) Vol. 185 LRCN 1.

On issue 2, whether 1st Respondent proved his case to entitle him to judgment, in view of the manifest material discrepancies in his evidence, Counsel answered in the negative, and adopted his earlier submissions, on issue 1.

He added that the decision of the trial Court occasioned a grave miscarriage of justice, as there was evidence that Appellant completed the Mortgage loan repayment, since 1995; and that there was evidence from him that the officials of Federal Ministry of Works and Housing had destroyed his file to enable them sell the disputed property to another person; he said that after destroying his file, they purportedly revoked his allocation to the plot and reallocated same to the 1st Respondent. He referred us to pages 107 to 108 of the Records. Counsel said Appellant’s averments on the said fraud/sharp practices, were not specifically traversed and so were deemed, admitted. Again, Counsel said the trial Court failed to adequately consider the said evidence and so reached a wrong conclusion. He relied on INCAR (NIG.) PLC Vs BOLEX ENT. NIG. LTD (1996) 6 NWLR (Pt. 454) 218; Mkpinang & Ors Vs Ndem & Ors (2013) Vol. 215 LRCN 130.

On Issue 3, whether failure to join Federal Ministry of Works and Housing and Federal Mortgage Finance Ltd, as parties, was fatal to claimant’s case, Counsel answered in the affirmative. He said that from the nature of the claims and evidence, adduced by the 1st Respondent, regarding the payment of the Mortgage loan, it was necessary to join the Federal Ministry of Works and Housing and the Federal Mortgage Finance Ltd, to assist the Court in arriving at final conclusion of the case; that the claim in the suit could not be fairly and completely determined, without their joinder. He relied on Mobil Oil Nig. Ltd Vs NABSONS LTD (1995)7 NWLR (Pt. 407) 254.

On Issue 4 whether the lower Court was not in error in joining Okwudiri Offor as 3rd Defendant in the suit, when in fact, he sued the Defendant/Appellant as Attorney of the Claimant, Counsel answered in the affirmative. He said that it was instructive that the trial Court joined the 2nd and 3rd defendants, as parties on 25/5/2011, even though the same Okwudiri Offor (3rd Respondent) had already been stated to have sued as Attorney of the 1st Respondent; that 1st Respondent having brought the suit by his Attorney, Okwudiri Offor, it was wrong to join him as defendant in the same case. Thus, he said the suit was not properly constituted, as a party cannot approbate and reprobate at the same time. He submitted that any defect in the constitution of a case is fatal to the proceedings. He urged us to set aside the judgment on that score. He relied on the case of DENR LTD Vs T.I. BANK LTD (2009) Vol. 173 LRCN 114.

Counsel urged us to resolve the issues for Appellant and to allow the Appeal and set aside the judgment of the lower Court.

Responding, the 1st Respondent’s Counsel, C. Onwuchekwa, Esq, on issue one, said the trial Court properly and dispassionately evaluated the evidence, before holding for the claimant, that the property was regularly and validly allocated to the claimant; that the evidence was properly evaluated to reach that conclusion. He relied on the case ofGbileve & Anor Vs Addingi & Anor. (2011) 47 NSCQR B3, on the fact that it is the trial Court that has the primary duty of evaluating evidence and ascribing probative value to same, and that appellate Court, would not normally interfere with the findings of the trial Court except it is perverse.

Counsel founded on the evidence by the 1st Respondent, particularly, Exhibits A and E, on which the 1st Respondent was not cross examined. Counsel said Appellant misconstrued the true position of Exhibits K, C-C1 and B and said that the same were not issued or made for the purpose of the Suit or in anticipation of payment of the mortgage loan by the 1st Respondent. He added that the fact that Exhibits B and C – C1 were made the same day, was of no moment and created no element of doubt as to their authenticity.

On whether this Court can look at a document in its file even though not tendered or admitted as an exhibit, Counsel submitted that such document does not constitute a legal evidence and is liable to be expunged; that it cannot be reckoned with by the Court, the same having not been subjected to cross examination; Counsel said that, it is not the duty of the Court to embark on a voyage of discovery, to search for documents, on behalf a party or to speculate on possibilities, which are not supported by any evidence. He relied on the case ofAgbi Vs. Ogbeh (2006) ALL FWLR (Pt. 239) 955.

He argued that, any pleading not supported by evidence, is deemed abandoned and goes to no issue; that Appellant had the onus to adduce evidence to support his case at the trial, and having failed, cannot turn round to shift the burden of proof.

On Issue 2, the failure to join the Federal Ministry of Works and Housing and Federal Mortgage Finance Ltd, Counsel said that did not affect or defeat the case of 1st Respondent. Counsel relied on SAPO & Anor Vs. Sunmonu (2010) Vol. 189 LRCN 26 at 52, to the effect that no cause or matter shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter, in controversy, so far as regards parties actually before it… (that) It is the undisputed right of a plaintiff to choose the person or persons against whom he wished to proceed against.”

Counsel also relied on Ororinde & Ors. Vs. Onia (2000) FWLR (Pt. 3) 448 at 464, to say that it is trite law, that when an action is properly constituted, with a plaintiff (with legal capacity to bring the action) and a defendant, and the action has satisfied all precondition for its instituting same, the fact that a necessary party to the action has not been joined, is not fatal to the action, and will not render the action, a nullity. He also relied on Bello Vs. INEC (2010) Vol. 184 LRCN 54 at 116.

Counsel added that it was the duty of the Appellant to obtain order to join the Federal Ministry of Works and Housing and the Federal Mortgage Finance Ltd, if they were material to the case of Appellant.

On the Issue 3, whether claimant had proved on preponderance of evidence to entitle him to judgment, Counsel answered in the affirmative, and adopted his earlier submissions on Issue one. He added that claimant had satisfied the Provisions of Sections 131, 132 and 133(1) of the Evidence Act. He relied, again, on the case of Agbi Vs. Ogbeh (2006) ALL FWLR (Pt. 329) 807 at 941, and added that, when a party withholds the evidence of vital witnesses, the Court shall invoke the operation of Section 167 (d) of the Evidence Act 2011, against him. Counsel said that Appellant cannot, at this stage, smuggle documents (evidence), which were not part of the evidence at the trial Court, and seek to rely on same on appeal; that Appellants letter, dated 28/1/2013, cannot be subjected to admissibility test, now, as the 1st Respondent cannot cross-examine Appellant on the said document.
He urged us to resolve the Issues against Appellant and to dismiss the Appeal.

RESOLUTION OF ISSUES
I think the real Issues for the determination of this Appeal are 2, namely:
(1) Whether the trial Court, had properly evaluated the evidence adduced before it before coming to the conclusion that the 1st Respondent was regularly and validly allocated the property in dispute by the relevant authorities – Federal Ministry of Works and Housing.
(2) Whether the Federal Ministry of Works and Housing and Federal Mortgage Finance Ltd, were necessary parties and their non-joinder or joinder of Okwudili Offor was fatal to the claimants case.
I shall take the issues together, and begin with the second Issue.

I have to note that the case at the lower Court was a straight contest between the 1st Respondent as Plaintiff (or Claimant) and the Appellant (as Defendant, MR ANTHONY NZEM). Thus, right from the writ of summons, filed in September 2006 (page 1 of the Records) to the judgment (page on 141 of the Records of Appeal), the parties to the Suit, were:
“BETWEEN:
MR HENRY NWAIKWU – CLAIMANT
(Suing by his Attorney Okwudiri Ofor)
AND
MR ANTHONY NZEM – DEFENDANT”

It is not therefore quite clear, why the Appellant decided to make 2nd and 3rd Respondents parties to the action. He had filed a motion to join them at the trial.

The Notice of Appeal, on page 147 of the Records, shows:
ANTHONY NZEM
ALEX ADEM -As Appellants/Respondents
OKWUDILI OFFOR AND
HENRY NWAIKWU -As Respondent

Even the judgment of the trial Court, was entered as follows:
(1) A declaration that the Claimant, being the lawful Allottee (sic) of the property known as 42B, Road 2 at the Federal Low Cost Housing Estate, Umuahia, Abia State, is the owner and entitled to possession also of same.
(2) An order of injunction restraining the Defendant and any person or persons claiming in trust for him, from entering this property or in any way interfering with claimant’s ownership and possession of same.
(3) Defendant shall yield possession of the said property to claimant, within 60 days, from today.
COUNTER-CLAIM
The counter-claim set up by Defendant has no particulars. It contains only reliefs. It is thus incompetent and struck out.”

Thus, the Suit started and ended with just the claimant (now 1st Respondent) and the Defendant (now Appellant).

It was however, the Defendant who brought a motion on page 92 of the Records, seeking an order of Court:
(a) Joining Alex Edem, S.U. Umar and Okwudili Offor – Whereas the 1st and 2nd persons sought to be joined in

this suit, are officials of the Federal Ministry of Works and Housing, Umuahia, the 3rd person sought to be joined is a tout to and a land speculator.
(b) An order of Court granting the defendant/applicant LEAVE to apply for an order joining Mr. Alex Edem, Mrs S.U. Umar and Okwudili Offor in this Suit.
(c) An order deeming this application, the supporting affidavit and written submissions on behalf of the defendant/applicant, as having been duly filed and served…”(See pages 92 to 93 of the Records).

On page 101, of the Records, the trial Court granted that application and stated:
“It is hereby ordered as follows:
(1) Alex Edem and Okwudili Offor are joined as 2nd and 3rd Defendants in this case.
(2) Defendant shall serve all the processes on them, within 7 days.
(3) Suit is adjourned to 23/6/2011.”

But, as earlier noted, those other names of the Defendants were not reflected on the Records, after the said order made on 25/5/2011 on page 101 of the Records. And so when the judgment was delivered on 23/9/2013 the parties remained, as per the writ of summons.

Whatever the case, it appears the Appellant was not honest and forthright, when he sought to capitalize on the alleged non-joinder of the Federal Ministry of Works and Housing and Federal Mortgage Finance Ltd as parties and/or joinder of the 3rd Defendant, to stall the case, whereas the he (Appellant) was the person who applied to the Court to join “Alex Edem, S.U. Umar and Okwudili Offor”; that the “1st and the 2nd persons sought to be joined… are officials of the Federal Ministry of Works and Housing, Umuahia, the 3rd person sought to be joined is a tout to and land speculator”.

He had sought to join and joined the officers of the Ministry of Works & Housing, (but now complained of non-joinder of the said Ministry of Works and Housing and the Federal Mortgage Finance Ltd). It was the duty of Appellant to apply to join the said institutions, if he considered them material/necessary parties to the Suit.

He had also applied and joined Okwudili Offor, whom he said was a tout and land speculator, and now he takes out quarrel against the purported joinder of Okwuriri Ofor (not Okwudili Offor), who was claimant’s Attorney in the suit. That suggests that Appellant was on a course for mischief; that he wanted to robe in Okwuriri Ofor as Co-Defendant, just to take it out against the suit, on appeal, that the claimant was both plaintiff and Defendant at the same time. His mischief failed, however, as the name he used for the joinder was Okwudili Offor, not “Okwuriri Ofor”. These are two different names, on the face of the processes.

Of course, the Federal Ministry of Works and Housing and Federal Mortgage Finance Ltd, were not made parties to the suit and Appellant knew it and did not join them, though he alleged some wrong doing against them, that they destroyed his file and revoked his allocation. They were not parties and were not necessary parties, as they had no stake in the case presented by the claimant, and their presence were not imperative, before the suit could be heard and determined, conclusively, neither were they to be bound by the decision of the Court in the suit. See the case of Azubuike Vs PDP & Ors (2014) LPELR – 22258 (SC); POROYE & ORS Vs Makarfi (2017) LPELR – 42738 SC.
In the case of NDP Vs INEC (2012) LPELR – 19722 (SC) it was held that:
“A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined. A necessary party should be allowed to have his fate in his own hands.”
See alsoAPC Vs PDP & Ors (2015) LPELR – 24587 (SC); GREEN Vs GREEN (1987)3 NWLR (Pt. 6) 480; Ayoade Vs Spring Bank Plc & Anor. (2013) LPELR – 20763 (CA); (2014) 4 NWLR (Pt. 1396) 93.

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Was the trial Court right to conclude that the 1st Respondent had established his claim, that the property in dispute had been regularly and validly allotted to him?

I think the learned trial Court made the correct findings and conclusion, when it held that the claimant (1st Respondent) had established its claim of having been properly and validly allocated the property, House at No.42B, Road 2, situate at Federal Low Cost Housing Estate, Umuahia, Abia State, the same having been allocated to the claimant (1st Respondent) as per Exhibit A (letter of allocation dated 10/5/2001).

There was evidence that the property had earlier been allocated to the Appellant, but he defaulted in the payment of the mortgage fee and the allocation was revoked, as per letter of revocation dated 7/5/2001. Exhibit G was the earlier Notice of revocation, dated 12/5/98 to the Defendant, threatening the revocation of the property for failure to comply the conditions for the allocation. Exhibits J, O, are letters issued to the Defendant to quit the property, same having been reallocated to claimant. And Exhibits D, E, F are documents, from the Federal Ministry of Works and Housing in favour claimant on the property and Exhibit F, in particular, is evidence of receipt for payment by the claimant of the allocation fees for the property dated 6/5/2008, and Exhibit M was confirmation letter of the claimant (1st Respondent) as the owner of the property by the allocation Authority.
These are all documentary evidence, which were admitted without issues, and cannot be wished away or denied by Appellant. A documentary evidence is the best evidence and speaks for itself, and cannot be modified, altered or defeated by parol representation. See Awolaja & Ors Vs Seatrade Groningen B.V. (2002) LPELR – 651 SC; (2002) 4 NWLR (Pt. 758) 520; Ashaka cem Plc Vs Mubashshurun Investment Ltd(2019) LPELR – 46541 (2018) (SC); Ugwuegede Vs Asadu & Ors (2018) LPELR – 43717 (SC); Ukaobasi Vs Nwabueze (2017) LPELR – 42420 (CA).

Appellant had tried to smuggle some receipts into this case, in this Court (that is, on appeal), saying that he had front-loaded the same (as per pages 25-26 of the Records), but, out of oversight or inadvertence, failed to tender them in evidence. He alleged that those receipts show that he had completed payment of the Mortgage Loan, and so was not owing, to warrant the revocation of his allocation, by the Federal Ministry of Works and Housing.
It is strange that Appellant urged us to use the said documents to reverse the decision of the trial Court, saying that this Court is permitted to look at the contents of its file or records at the point of writing judgment/ruling, and to use such evidence/document before it, to do justice, even if the same was not formally admitted in evidence, relying on Uzodinma Vs Izunaso & Ors (2012) Vol. 211 LRCN 153 at 200.
Of course, the above submission and case cannot apply to Appellant’s appeal, as that principle of law, permitting a look at the case file/records, is not meant to reward laxity, indolence or illegality, or to give a party, who failed to do his case or present his case, properly, at the trial Court, another chance at the appellate Court, to introduce new evidence (not contemplated or considered at the trial Court), to upturn the decision of the trial Court. In the recent case of Julius Berger Plc Vs Ugo (2020) LPELR – 49544 (CA), we held that:

“… no party is expected to re-litigate a suit, which had been heard and determined, finally, by a competent Court, by any guise, simply because he (Appellant) may have discovered something which he failed to employ at the time the case was heard, which if applied would have tilted the balance of the case to favour him…”
Thus, Appellant cannot be allowed to generate fresh evidence, in this Court, which cannot be tested by cross examination, to change his case, with a view to using same to defeat the judgment of the trial Court. It should also be noted that the said documents, which Appellant sought to rely upon as receipts for payment or completion of payment of the Mortgage fee, have nothing to do with the case of the claimant (1st Respondent), but were meant or should have founded complaints against the Federal Ministry of Works and Housing and/or Federal Mortgage Finance Ltd, over the allocation, and who are/were not parties to the Suit. If Appellant had complaints against those who allocated the property to him; that he had completed payment of the Mortgage fees, that, of course, was entirely a different cause of action, not before the Court, in the case of the claimant, who only had to prove that the property was allocated to him by the Federal Ministry of Works and Housing, upon revocation of Appellant’s allocation.

I do not therefore, see how Appellants documents on pages 25 and 26 of the Records, which Appellant obtained the order of this Court, on 19/3/2018, to adduce as additional evidence to support his case of completion of the Mortgage, can be useful to him, to change the decision of the trial Court, which simply up held the claim of the Claimant (1st Respondent) that the property was regularly and validly allocated to him.
I therefore resolve the issues against the Appellant and dismiss the Appeal.
Appellant shall pay the cost of the Appeal, assessed at Fifty Thousand Naira (N50,000) only to 1st Respondent.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.

Appearances:

EZE UKATTAH ESQ. For Appellant(s)

C. ONWUCHEKWA ESQ. for the 1st Respondent For Respondent(s)