OBUEBITE v. ORIJI
(2020)LCN/15488(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/PH/405/2017
RATIO
CIVIL PROCEEDING: BURDEN OF PROOF
The law is clear by virtue of Section 134 of Evidence Act, 2011 that civil causes and matters are proved on balance of probabilities while by Section 136 of the same Evidence Act, 2011, the Plaintiff is required to establish its case whereafter the burden may shift to the Respondent as dependent dependent on the pleadings. See ADEGOKE V. ADIBI (1992) 5 NWLR (PT. 242) 410; JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 182. PER ISAIAH OLUFEMI AKEJU, J.C.A.
Before Our Lordships:
Isaiah Olufemi Akeju Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
HON. JONATHAN ROBINSON OBUEBITE APPELANT(S)
And
RICHARD ORIJI RESPONDENT(S)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Bayelsa State delivered on 8th March, 2017 in suit No. YHC/114/2014 wherein the learned Judge, Hon. Justice D.E. Adokeme of Yenagoa Judicial Division entered judgment for the Respondent in the sum of Two Million Naira (N2,000,000.00) and awarded costs against the Appellant in the sum of N100,000.00.
The suit was commenced by the Respondent as claimant through the Writ of Summons filed on 25th June, 2014 with the Statement of Claim. He had sought the following reliefs against the Defendant and now Appellant;
“a. An Order directing the Defendant to refund the sum of Two Million Naira (N2,000,000.00) only for the default of the contractual agreement entered the 13th day of May, 2013.
b. The sum of One Million Two Hundred Thousand Naira (N1,200,000.00) only for the damage (sic) 20 KVA sound proof Mikano Lister Generator.”
The facts on which the Respondent relied for his claim are that on 13th May, 2013 he entered into a Tenancy Agreement with the Appellant through one Barrister Blessing Eyidengha who acted as the Appellant’s Attorney. The Agreement was in respect of the Appellant’s property at No.28, Old House of Assembly Quarters Yenagoa which the Respondent accepted to take as a tenant upon payment of rent of N2,000,000.00 for two years. It was further stated by the Respondent that shortly after he took possession thereof the property became flooded by water by which his personal property was destroyed and when he complained to Barrister Blessing Eyidengha, he was told by Eyidengha, that the flooding was caused by the bad plumbing work in the house and not a structural problem and promised to fix it. The situation however became worse as the entire house and compound became flooded again on 16th June, 2013 destroying most of the household items of the Respondent including food stuff. The Respondent contacted the Appellant through a letter to his lawful Attorney, Blessing Eyidengha, Esq. and demanded the refund of the N2,000,000.00 which he paid as rent which the Appellant promised to refund, but the promise was never fulfilled.
The Appellant filed Statement of Defence on 24th June, 2015. He admitted that he instructed Blessing Eyidengha, Esq. to transact business with the Respondent on his behalf and to put the Respondent in possession of the property upon payment of rent as well as to prepare a Tenancy Agreement on his behalf and admitted collecting the rent paid by the Respondent. The Appellant however denied that Blessing Eyindengha was his lawful Attorney as he did not issue any power of Attorney to him and the Tenancy Agreement was not brought to him for execution. The Appellant admitted having knowledge of the flooding of the apartment but stated that it was an act of flood due to excessive rainfall and blocking of roads as a result of road construction. He said he did not receive any letter terminating the Tenancy Agreement and had not received the keys to the apartment.
At the trial of the action, the Respondent gave evidence as PW1 and Tendered documents while the Appellant testified and called two other witnesses but did not tender documents. The trial Court then visited the locus in quo.
After receiving and considering the evidence of the parties and the Written Address of their learned counsel, the lower Court entered judgment for the (Plaintiff) Respondent for the refund of the rent of N2,000,000.00 while the claim in respect of sound proof perkins Mikano Lister Generator was refused.
The Appellant felt dissatisfied with the decision of the lower Court and filed Notice of Appeal on 11/4/17 with three grounds of appeal, and in the Appellant’s Brief of Argument settled by P.M. Sini Ototo Esq., two issues were formulated as follows:
1. Whether the learned trial Judge was right in ordering the Appellant to refund the sum of Two Million Naira (N2,000,000.00) only received as rent from the claimant to the claimant with cost of One Hundred Thousand Naira (N100,000.00) against the Appellant, having regards to the fact and evidence before the lower Court.
2. Whether the learned trial Judge was right in holding that Barr. Blessing Eyidengha Esq. was the lawful Attorney of the Appellant.
The issues raised for determination in the Respondent’s Brief prepared by Harcourt John Ekpe Esq. of counsel are;
1. Whether the trial Court was right in holding that Blessing Eyidengha Esq. was the lawful Attorney of the Appellant in his dealing with the Respondent as far as the Appellant property at the old House of Assembly Quarters, off Azikoro Road, Ekeki Yenagoa was concerned.
2. Whether the Respondent proved his case before the trial Court to be entitled to the Judgment.
This appeal will be considered and determined upon the two issues raised by the Appellant and those issues are therefore adopted.
On the first issue the learned counsel for the Appellant submitted that though it was pleaded by the Respondent that he vacated the apartment and wrote a letter to the Appellant to that effect through Blessing Eyidengha Esq. who he also handed the keys of the apartment to for delivery to the appellant, the Appellant denied this assertion and stated that the letter and the keys were never received by him. This, as argued by the learned counsel called for evidence from this Blessing Eyidengha Esq. whose evidence was very vital to confirm the assertion but he was never called as a witness. It was submitted that pleading does not constitute evidence and pleaded facts upon which no evidence is adduced is deemed abandoned; YUSUF V. OYETUNDE (1998)10 SCNJI. It was also submitted that the Respondent is duty bound to prove his case upon preponderance of evidence;
A.T. (NIG.) LTD V. UBN PLC (2010) 1 NWLR (PT. 1175) 360; GREIF CONTAINERS PLC V. O.P.& IND. LTD (2015) 8 NWLR (PT. 1461) 260.
It was submitted that the Respondent could not unilaterally terminate the tenancy; EVELYN EHWRUDJE V. WARRI LOCAL GOVT. (2016) LPELR 40052 (SC). It was contended that the Respondent had the duty to establish that he duly vacated the apartment and show that he surrendered same to the Appellant by returning the keys to the appellant who received them. It was submitted that a tenant is said to have vacated the premises occupied by him if he gives vacant possession of the premises and returns the keys thereto to the landlord who also accept delivery of same; CHIADI V. AGGO (2005)I NWLR (PT.907) 319. It was submitted that parties are bound by their pleadings and the onus of proving a fact lies on the party that asserts the fact. It was contended that having failed to discharge this burden of proof, the Respondent was not entitled to the refund of the rent paid by him to the Appellant for the apartment having failed to establish that he surrendered possession of the vacant apartment to the Appellant; BOCAS NIG. LTD V. WEMABOD ESTATE LTD (2016) LPELR-40193 (CA).
The learned counsel submitted that an appellate Court will be properly justified to interfere with the finding of fact by a trial Court and the appellate Court may deal with such fact and make its own findings where the finding of the trial Court is not supported by evidence or was contrary to law; ADEYERI V. OKOBI (1997) 51 LRCN 1529; AKINGBADE V. GEN DANJUMA (2009) LPELR -8808; NIGERIA AIRWAYS LTD V. ABE (1988) 4 NWLR (PT.90)524; OKWEJIMINOR V. GBAKEJI (2008)1 SCNJ 481.
The learned counsel contended that the principle of unjust Enrichment relied upon by the learned Judge in holding that there is a total failure of consideration which entitled the Respondent to a refund of the money paid by him was not pleaded or given in evidence or raised by counsel to the parties but was raised suo motu by the Court in its judgment thereby formulating issues or cases for the parties and thereby failing to confine its decision to issues raised by the parties; ALI V. SULE (2017) LPELR 42139 (CA). The Court also failed to call for address by the parties on that issue; ENEKWE V. INTERNATIONAL MARCHANT BANK NIG. LTD (2006) LPELR – 1140 (SC) 34; ALLI V. ALESINLOYE (2000)6 NWLR (PT.660)177.
On the 2nd issue, the learned counsel submitted that though he instructed Barrister Blessing Esq. to prepare a Tenancy Agreement in respect of the property and he received the money paid as rent by the Respondent through Barrister Blessing Esq., he (Appellant) did not issue any power of Attorney to Barrister Blessing Esq. to manage the property rented out. The Respondent failed to discharge the onus on him to prove that Barrister Blessing Esq. was the lawful attorney of the Appellant. It was submitted that there was no properly executed power of Attorney tendered or produced by the Respondent who had made that assertion to warrant the decision of the lower Court; IWUANYANWU V. MINISTER OF AGRICULTURE & WATER RESOURCES (2016) LPELR 40208 (CA); ABU V. KUYABANA (2002) 4 NWLR (PT.758) 599.
We were urged to allow the appeal and set aside the decision of the lower Court.
On whether the trial Court was right in holding that Barrister Blessing Esq. was the lawful Attorney of the Appellant which is issue No.1 in the Respondents Brief, the learned counsel for the Respondent submitted that the Respondent proved that Barrister Blessing Esq. was the lawful Attorney of the Appellant in respect of the property of the Appellant. It was contended that the Appellant had admitted in his Statement of Defence that he instructed Barrister Blessing Esq. to rent the property in issue for him and prepare a Tenancy Agreement which Barrister Blessing Esq. did and gave same to the Respondent to sign. The learned counsel submitted that fact admitted does not require further proof; ADESHINA V. BAC ELECTRICAL COMPANY LTD (2007) ALL FWLR (PT.369) (incomplete); UNITED BANK FOR AFRICA PLC V. JARGABA (2007) ALL FWLR (PT. 380) 1419.
It was submitted that a party in an action is entitled to extract evidence in line with his pleadings from the adverse party’s witness in the course of cross examination; DAGGASH V. BULAMA (2004) 14 NWLR (PT. 892) 144. It was also submitted that the Agreement prepared by Barrister Blessing Esq. being a document speaks for itself; OLUBODUN V. LAWAL (2008) ALL FWLR (PT.434)1468.
It was submitted also that where there is conflict in the evidence of witnesses, documentary evidence will serve as a hanger on which the conflict will be resolved because documents do not admit of falsehood;BFI V. BUREAU OF PUBLIC ENTERPRISE (2013) ALL FWLR 457. It was submitted that oral evidence cannot alter the content of a document which in this case is Exhibit A, the Tenancy Agreement prepared by Barrister Blessing; OLASUPO V. MORAKINYO (2014) ALL FWLR (PT.726) (incomplete); SANKEY V. ONAYIFEKE (2014) ALL FWLR (PT.749) 103; ALIMS (NIG.) LTD V. UBA NIG. LTD (2013) ALL FWLR (PT.692) 1756. The learned counsel referred to the definition of Attorney and Agent in the Blacks Law Dictionary and urged Court to resolve this issue in favour of the Respondent.
On the 2nd issue which is, whether the Respondent proved his case before the trial Court, the learned counsel for the Respondent submitted that the Respondent proved his case on the balance of probability to entitle him to judgment as civil cases are to be proved on balance of probability; ONANUBI V. OGUNFOLU(2009) ALL FWLR (PT. 496) 1926.
It was the contention of learned counsel that having shown that he rented the apartment in issue from the Appellant through his lawful Attorney Blessing Eyidengha Esq. who the Appellant gave authority to and that the Appellant received the rent paid by the Respondent through the same Blessing as stated in Exhibit A. According to the learned counsel, these facts that are admitted will require no further proof, the Respondent has proved his case. As further contended by learned counsel, the Respondent also proved that shortly after he entered the apartment, it got flooded as a result of serious plumbing defect which caused damage to his property and rendered the house uninhabitable and far from being kept in a tenantable condition as required by Exhibit A, the tenancy Agreement which amounted to a breach of the contract of Tenancy. It was submitted that a party is said to be in breach of contract when he acts contrary to the terms of the contract; MTN COMMUNICTIONS LTD V. SIDENEY C. AMADI Esq. (2013) ALL FWLR (PT. 670) 1338. It was also contended that the evidence of the DW2 and DW3 with respect to the position or state of the property amount to hearsay which must be declared in admissible;FRN V. USMAN (2012) ALL FWLR (PT. 632) 1643.
The learned counsel argued that the Appellant has the duty to call Blessing Eyidengha Esq. as a witness to contradict the evidence of the Respondent, OMOTAYO V. STATE (2014) ALL FWLR (PT.713) 2011. Counsel urged that the appeal should be dismissed because the Respondent proved his claim before the lower Court.
I should state that I have read the Appellant’s Reply Brief and it only amounts to a re-argument of the Appellant’s case and not an answer to any new issue raised by the Respondent’s counsel. It is the law that an Appellant’s reply Brief is to respond to new issues raised or canvassed in the Respondent’s brief and not meant to canvass the argument of the Appellant all over again. See OKPALA V. IBEME (1989) 2 NWLR (PT.102) 208.
The two principal issues that have been raised and argued by the parties are the status of Barrister Blessing Eyidengha Esq. who the Respondent believe to be the lawful Attorney of the Appellant but the Appellant argued per contra that he (Blessing) was not his Attorney with respect to the transaction between them. The other issue relates to the proof of the claim by the Respondent to entitle him to the judgment of the lower Court.
It is clear from the evidence of the parties that the Respondent did not produce any formal power of attorney with respect to the appointment of Blessing Eyidengha as the Attorney of the Appellant, it is however evident that the same Blessing acted for the Appellant in the preparation of the Tenancy Agreement between the Respondent and the Appellant with respect to the property in issue. It is also in evidence that the rent sum paid by the Respondent was received by the Appellant from this Blessing through whom it was paid.
The remaining argument in this case is as to the role of this Barr. Blessing who prepared the Tenancy Agreement for the Respondent on behalf of the Appellant, though there was no formal Power of Attorney which as described by the Black Law Dictionary Seventh Edition at page 1191 is an instrument granting someone authority to act as agent or attorney in fact for the grantor.
I am in agreement with the Appellant that in the absence of this power of attorney it will not be proper to describe this Blessing as the Appellant’s lawful attorney for the purpose of this case.
I find in favour of the Appellant on this issue.
The facts relating to the other issue are clear and undisputed that the rent paid by the Respondent as prescribed in the Tenancy Agreement prepared by Blessing on the authority of the Appellant was received by the Appellant. It is also undisputed that the Appellant was aware even through the visit to the locus in quo that the Respondent vacated the premises due to the discomfort caused by the flooding of the apartment.
The law is clear by virtue of Section 134 of Evidence Act, 2011 that civil causes and matters are proved on balance of probabilities while by Section 136 of the same Evidence Act, 2011, the Plaintiff is required to establish its case whereafter the burden may shift to the Respondent as dependent dependent on the pleadings. See ADEGOKE V. ADIBI (1992) 5 NWLR (PT. 242) 410; JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 182.
I am in agreement with learned trial Judge that the Plaintiff at the lower Court now the Respondent in this appeal has proved his case on the preponderance of evidence and I uphold the Judgment delivered by that Court.
This appeal is lacking in merit and it is accordingly dismissed.
Parties are to bear their costs of the appeal.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother ISAIAH OLUFEMI AKEJU, J.C.A. and I am in complete agreement with the reasoning and conclusions reached therein. I too dismiss this appeal for lack of merit. I abide by all other consequential orders.
Appearances:
U. B. Younkuri For Appellant(s)
Harcourt Ekpe John For Respondent(s)
