OGBEMUDIA v. OMOREGIE (2020)

OGBEMUDIA v. OMOREGIE

(2020)LCN/15312(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/B/27/2010

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Between

MRS DENISE ABIEYUWA OGBEMUDIA APPELANT(S)

And

FELIX OMOREGIE (Suing By His Attorney Dike Clement, Esq.) RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL WILL ONLY BE DETERMINED ON ISSUES ARISING OUT OF THE GROUNDS OF APPEAL IN THE NOTICE OF APPEAL

It is a trite principle of law that an Appeal will only be determined on issues arising out of the grounds of Appeal in the Notice of Appeal before the Court and no arguments on any issue not predicated on such grounds of appeal will be countenanced. See OKELOLA VS BOYLE (1998) 1 SCNJ 83. Thus a Respondent though is at liberty to formulate issues in the way he understands with a bias for his client’s case, such issues so formulated must relate to the grounds of Appeal filed by the Appellant. He can only go outside it if he filed a cross appeal or Respondent’s notice. He does not have unrestrained or unbridled freedom to raise issues for determination which have no bearing or relevance to the grounds of Appeal filed by the Appellant. In other words, a Respondent is not duty bound to adopt the issues raised in the Appellant’s brief of argument. He is at liberty to formulate his own issues for determination provided they are derived from the existing grounds of appeal. See OSSAI VS WAKWAH (2006) 2 SCNJ 19; ALL PROGRESSIVE GRAND ALLIANCE VS CHIEF VICTOR UMEH & ORS. (2011) 2-3 SC (PT 1) 139, KHALED BARAKAT CHAMI VS. UBA PLC (2010) 2-3 S.C. (PT 11) 92. PER OSEJI, J.C.A.

WHETHER OR NOT AN UNSTAMPED DOCUMENT IS INADMISSIBLE MERELY BECAUSE IT WAS NOT STAMPED

It is trite that where a document is unstamped, it is not inadmissible merely because it was not stamped since the purpose of stamping is to ensure revenue. Such document could only be duly ordered to be stamped and admitted in evidence. See OKUWOBI VS ISHOLA (supra) at page 48 and Section 72 (2) and (3) (a) (b) of the Stamp Duties Law Cap. 155 Laws of Bendel State as applicable to Edo State. Section 72 (ante) provides inter alia, that unstamped document shall be admitted upon payment of fine which fine shall be noted upon the face of the document. However, the document which is so admitted shall not be deemed to be duly stamped but shall be available for the purposes of the suit in which it is tendered in evidence and for the purpose only.
Since the trial Judge has ordered that the respective stamp duty be paid, the requirement of the law is therefore complied with.” See also FBN PLC VS I.G.M COTTON MILL LTD & ORS (2014) LPELR 23306 (CA) and ETOKHANA VS NDIC & ANOR (2016) LPELR – 41169 (CA). PER OSEJI, J.C.A.

WHETHER OR NOT ESTOPPELS MUST BE PLEADED BEFORE THE TRIAL COURT

In DEDEKE & ORS VS WILLIAMS & ANOR (1934) 10 WACA 164 which was duly applied and followed by the Supreme Court of Nigeria in CLAY INDUSTRIES VS AINA (1997) 7 SCNJ 501, it was held that estoppels must be pleaded before the trial Court otherwise it cannot be raised on appeal. In SOSAN & ORS VS ODEMUYIWA (1984) 1 NSCC 673, the Apex Court also held that an estoppels must be clearly and specifically pleaded or else it must be so apparent that Court has a duty to consider it. Further in UKAEGBU & ORS VS UGOJI & ORS (1991) 6 NWLR (PT 196) 127, it was held per Karibi Whyte JSC that a party relying on estoppels must specifically plead it. He relied on the older authorities of OWONIYI VS OMOTOSHO (1961) 1 All NLR 304 and OBANYE VS OKWUNWA & ANOR (1930) 10 NLR 8. In ARO VS ARO & ANOR (2000) LPELR – 6782 (CA), this Court per Onnoghen JCA (as he then was) held at pages 10 -11 that:-
“It is the law that equitable defences like laches, acquiescence, estoppels, etc must be specifically pleaded particularly. See IBENEME VS LAWAL (1971) 1 All NLR 23. It follows therefore that for a party to avail himself of the plea of res judicata or estoppels, he should have pleaded it specifically. If it is not so pleaded, it cannot be raised at the trial Court or on appeal. See OBANYE VS OKUNWA (1930) 10 NLR 8.” PER OSEJI, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THE CONTENT OF THE AGREEMENT FREELY AND VOLUNTARILY ENTERED INTO BY THEM

The law is trite that parties are bound by the content of the agreement freely and voluntarily entered into by them. In other words, parties to an agreement or contract are bound by the terms and conditions of the contract they signed and the primary duty of the Court is restricted to interpretation and enforcement of the terms of the contract as agreed by the parties thereto. See ISHENO VS JULIUS BERGER (2008) 33 NSCQR (PT 1) 296; KAYDEE VENTURES LTD VS MINISTER FCT (2010) 4 NSCQR (PT. 2) 830; LINTON INDUSTRIAL TRADING COMPANY (NIG) LTD VS CBN & ANOR (2013) LPELR – 22036 (CA).
See also WILLIAMS EVBUOUMAN & ORS VS JONATHAN ELEMA & 2 ORS (1994) 7-8 SCNJ 2 where the Apex Court held that if parties enter into agreement, they are bound by its terms. One cannot therefore legally or properly read into the agreement the terms on which the parties have not agreed. Vide ROBINET (NIG) LTD VS SHELL NIGERIA GAS LTD (2013) LPELR – 22144 (CA). PER OSEJI, J.C.A.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Edo State sitting in Benin and delivered on the 28th day of September, 2009.

Appellant herein was the 2nd defendant in the suit filed in the lower Court while the Respondent was the plaintiff. One Madam Esther Ayore was the 1st defendant.

The Respondent had as plaintiff in the lower Court claimed against the Appellant and the 1st defendant in paragraph 25 of the Amended Statement of claim dated 10th April, 2008 as follows:-
”25. Wherefore the plaintiff claims against the Defendants for the balance:
1. Sum of Two Million, Five Hundred Thousand Naira out of the purchase price of N3, 300,000.00 for the plaintiff’s land.”

The case involves a parcel of land purchased by the Respondent’s mother from the Elema family in 1996 after which she built a block of four flats of three bedrooms each up to lintel level and also fenced the land and installed an iron gate, before her demise in 2003.

The said land is located in Elema quarters, GRA Benin City and the 1st Defendant signed the Deed of assignment as witness for the Respondent’s mother during the purchase.

Upon her demise in 2003, the Respondent who is her first son and based in Germany inherited the land. However, sometime in 2005 the Appellant herein was said to have gone into the land, demolished the uncompleted storey building and erected a duplex thereon. Upon being confronted, the appellant stated that she bought the land from the 1st Defendant, Madam Esther Ayore who represented herself as the first daughter of the Respondent’s mother and a beneficiary of the said land. She sold the land to the Appellant for the sum of N2.5 Million by representing herself as Madam Felicia Omoregie and which name she used in preparing the Deed of Transfer.

The said 1st Defendant was said to be a friend to the Respondent’s mother during her life time.

Upon discovery of this fraudulent act, the Respondent went in search of the 1st Defendant who upon being found sought for an amicable settlement while admitting that the land she sold to the Appellant for N2.5Million actually belongs to the Respondent. At a meeting held to resolve the issue, the 1st Defendant promised to refund the said sum of N2.5 Million to the Respondent within months after the Respondent had agreed to leave the land for the Appellant for the total purchase price of N3.3 Million which included the N2.5 Million earlier paid by the Appellant to the 1st Defendant. On this premise the Appellant paid the extra sum of N800,000.00 to the Respondent while the N2.5 Million is to be returned to him by the 1st Defendant but this did not materialise despite series of effort to recover same, hence the suit was instituted to the lower Court against the Appellant and the 1st Defendant.

After the filing and exchange of pleadings the Respondent led evidence at the hearing in proof of his case but the 1st Defendant and the Appellant did not give any evidence and opted to rely on the case of the Respondent. After the filing and adoption of written addresses the lower Court delivered a judgment on the 28th day of September, 2009 wherein it held as follows:-
“In conclusion, I hold that the Defendants are liable to the claim of the Plaintiff for the sum of N2,500,000.00 being the balance purchase price for the Plaintiff’s land.
The Defendant shall pay 10% per annum as interest on the judgment sum from today, the day of Judgment until the entire judgment sum is finally liquidated. Relief two of the claim is dismissed as no evidence was led on it.
The Defendants shall pay N10,000.00 cost to the plaintiff.”

The Appellant as the 2nd Defendant was not satisfied with the said judgment and as such filed a notice of appeal with two grounds on the 6/10/2009. Another notice with five grounds of appeal was later filed on 16/3/2015.

The Appellant’s brief of argument was subsequently filed on 16/3/2015 while the Respondent filed his own brief of argument on 31/5/2017.

The Appellant’s reply to the Respondent’s brief was filed on 10/1/2018 and deemed as properly filed on the same day.

The appeal was also reheard on the 27/5/2020 during which the parties duly adopted and relies on their respective briefs of argument.

In the Appellant’s brief of argument five issues were formulated for determination as follows:-
1. Whether the decision of the Honourable Court was not unreasonable, having regard to the oral documentary evidence before the Court. (Ground 5).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether in view of the circumstances of the case, it was right for the trial judge to expunge Exhibit P3 on ground of non-stamping without offering the Appellant the opportunity of stamping and paying for same. (Ground 1).
3. Whether the Appellant has not discharged the financial liability/obligation to the Respondent arising from the land transaction based on the common law contract doctrine and/or principle of accord and satisfaction. (Ground 2).
4. Whether given judgment to the Respondent against the Appellant and 1st Defendant jointly and severally does not amount to double compensation and/or jeopardy, moreso when the Respondent in his claim did not plead jointly and severally. (Ground 4).
5. Whether from the circumstances of this case, the Respondent is not estoppels (sic) by conduct from maintaining this action which borders on documentary evidence against the Appellant. (Ground 3).
Alternatively; having regard to the totality and evaluation of oral and documentary evidence before the trial Court, whether the Appellant was still liable for the domestic arrangement between the Respondent and the 1st Defendant as regard the N2.5 Million in the land transaction. (Ground 5).

The Respondent on the other hand formulated a sole issue for determination in his brief of argument as follows:-
”Whether the Respondent is not entitled to the sum of N3,300,000.00 being the sum he magnanimously conceded to accept in place of his land which the 1st Defendant sold to the 2nd Defendant.”

APPELLANT’S SUBMISSION
ISSUE 1
Herein it was submitted by learned counsel for the Appellant that the lower Court did not advert its mind to the crucial fact that the relationship between the Respondent and the Appellant were strictly contractual by virtue of the content of Exhibit P3 which shows that the Appellant should pay the additional N800,000.00 while the Respondent demands the balance N2,500,000.00 from the 1st Defendant and which sum was paid by the Appellant to the 1st Defendant during the sale of the land to her. He added that it was therefore wrong for the learned trial Judge to have awarded the sum of N2,500,000.00 against the Appellant jointly and severally with the 1st Defendant when it was clear that the 1st Defendant fraudulently sold the land to the Appellant without her knowledge.

It was further submitted that the learned trial Judge did not properly evaluate the content of the document before the Court before applying the law to the facts of the case which is based mainly on documentary evidence in which case the defence need not call any witness having relied on the evidence elicited from cross examination in establishing her own defence. On this, he cited the case of MRS EVA ANIKE AKOMOLAFE VS GUARDIAN PRESS LIMITED PRINTERS (2010) VOL. I MJSC 93 at 95 to contend that the Appellant gave evidence in support of her case via the evidence elicited from the Respondent under cross-examination and Exhibit P3 tendered through the Respondent during the said cross examination.

On issue 2, it was submitted that the learned trial Judge erred in law by expunging Exhibit P3 when writing the judgment on the ground that it was wrongly admitted having not been registered or stamp duty paid on same.

It was then contended that the Appellant pleaded Exhibit P3 as a receipt as per paragraph 10 of the statement of defence. Furthermore, that the said Exhibit P3 having been tendered as a receipt need not be registered or stamped but even if it requires stamp duty, it ought not to be a ground to expunge it because the Court would have ordered the Appellant to go and effect the payment of stamp duty on the document while admitting same. He cited in support the case of AISAGBONBUOMWAN OGBAHON VS THE REGD. TRUSTEES OF CHRIST CHOSEN CHURCH OF GOD & ANOR. (2001) FWLR (PT 80) 1496 at 1503 and OKUWOBI VS ISHOLA (1973) VOL. 3 S.C. PAGE 43 at 48.

On issues 3 and 5 as jointly argued by learned counsel for the Appellant, it was submitted that the learned trial Judge erred by not absolving Appellant from any liability arising from the non-payment of N2,500,000.00 to the Respondent by the 1st Defendant and held that both the 1st Defendant and the Appellant are liable jointly and severally for payment of the aforestated sum.

According to the learned counsel, the Respondent admitted that he was to recover the said sum of N2,500,000.00 from the 1st Defendant and there was evidence of strong domestic relationship between them because the 1st Defendant was a domestic servant to the Respondent as well as caretaker of the land after the demise of the Respondent’s mother.

She also signed the Deed of Transfer as a witness when the Respondent’s mother bought the land from the Elema family.

He added that the Appellant was discharged from any financial liability or obligation to the Respondent based on contract principle of accord and satisfaction and/or novation because Exhibit P3 shows that there was an agreement for the Respondent to collect the sum of N2, 500,000.00 from the 1st Defendant while the N800, 000.00 making up the balance of the amount agreed for the land was paid by the Appellant to the Respondent.

On the duty of a Court to interpret agreements and not to rewrite agreements for parties he referred to the following cases:-ONIAH VS ONYIA (1989)1 NWLR (PT. 799) 514; OJO OSAGIE VS ADONRI (1994) 6 NWLR (PT. 349) 131; YADIS (NIG) LTD. VS GREAT NIGERIA INSURANCE CO. LTD. (2007) 30 NSCQR 495 AT 500.

It was further contended that facts and circumstances of the case amounts to waiver of right of claim with some element of estoppel by conduct on the part of the Respondent and this the Court accepted but insisted that it was not specifically pleaded by the Appellant when by law it is the circumstances and facts of the estoppels by conduct which needs to be pleaded and not meant to be a specific plea as in Estoppel per Rem Judicata.

Issue No. 4 was a virtual adoption of the arguments on issues 2, 3 and 5 on the premise that by virtue of Exhibit P3 which is a binding contract between the Appellant and the Respondent, the Appellant has been relieved of any other financial obligation towards him in which case the Applicant cannot be liable either jointly and severally to the Respondent with respect to the payment of the sum of N2,500,000.00 therefore the lower Court making an order for such payment to the Respondent is a clear miscarriage of justice.
This Court was then urged to allow the appeal.

Responding as per the sole issue for determination as formulated in the Respondent’s brief of argument, learned counsel for the Respondent submitted that a person who is not a party to an agreement cannot sue on it or rely on same in bringing an action, or enforce a provision contained therein even if the agreement or contract was made for his benefit. He cited the case of REBOLD IND. LTD. VS MAGREOLA (2015) VOL. 245 LRCN 105 at 110.
He added that the Respondent was not a party to the sales agreement or Deed of Transfer of his land made between the Appellant and the late 1st Defendant during which the Appellant paid the sum of N2,500,000.00 to the late 1st Defendant. Therefore the Respondent cannot claim the said sum of N2,500,000.00 from the late 1st Defendant because there is no nexus between him and the late 1st Defendant with regard to the initial sale of the land.

Furthermore, it was contended that the Respondent could not have legally relied on Exhibit P3 either in whole or in part to claim the said sum of N2,500,000.00 from the late 1st Defendant who was not a party to Exhibit P3 and cannot be enforced against her.

Added to that, he submitted that Exhibit P3 was not pleaded by any of the parties and the Appellant did not lead any evidence in support of the said Exhibit P3 even though it was tendered and admitted during cross examination.

Learned counsel also contended that Exhibit P3 was wrongly admitted in evidence and as such the learned trial judge was right to have expunged it, given that it was tendered as a document of transfer of title which qualifies it as a registable instrument but was not registered as required by law. He cited the case of HARUNA VS A.G. FEDERATION (2012) LRCN 70 at 79.

He further argued that even if Exhibit P3 was tendered as a receipt, it is still caught by the provisions of Section 21(4) of the Stamp Duties Law 1976 Laws of Bendel State as applicable to Edo State and this renders it inadmissible.

On the issue of estoppels by conduct, it was submitted that the Appellant did not plead same in her statement of Defence and it was never raised at any stage of the proceedings at the trial Court. In this regard, it cannot now be raised in this Court by the Appellant without first seeking and obtaining the leave of this Court to do so and it is therefore wrong for it to be raised for the first time in the Appellant’s brief of argument vide GBEMISOLA vs BOLARINWA (2014 VOL 234 LRCN 137 AT 142.

On a final note, it was submitted that the Respondent rightly claimed against the Appellant and the late 1st Defendant jointly and severally and which claim was not challenged by the Appellant during the trial.
This Court was then urged to dismiss the Appeal.

The Appellant’s four page reply to the Respondent’s brief of argument was filed on 10-1-2018.

Therein the Appellant’s counsel submitted firstly that the Respondent did not file a cross appeal or Respondent’s notice and cannot therefore formulate new issues not arising from those formulated by the Appellant. He relied on the case of C.P.C VS LADO (2011) 14 NWLR (PT 1266) 40 to urge the Court to hold that the sole issue formulated in the Respondent’s brief of argument is incompetent.

Furthermore, the Appellant’s counsel picked holes with the Respondent counsel’s submission that he was magnanimous to have left the land for the Appellant after reaching a settlement for the payment to him of the additional sum of N800, 000.00. He contended that the additional sum of N800, 000.00 was a form of consideration and/or waiver for the release of the Appellant from any further obligation towards the Respondent.

It was also submitted that except for estoppels per rem Judicata, other estoppels are based on facts and not meant to be specifically pleaded.

I will first deal with the submission in the Appellant’s reply brief to the effect that the sole issue raise in the Respondent’s brief is incompetent because it is not derived from any of the issues formulated in the Appellant’s brief and no cross-appeal or Respondent’s notice was filed by the Respondent.
It is a trite principle of law that an Appeal will only be determined on issues arising out of the grounds of Appeal in the Notice of Appeal before the Court and no arguments on any issue not predicated on such grounds of appeal will be countenanced. See OKELOLA VS BOYLE (1998) 1 SCNJ 83. Thus a Respondent though is at liberty to formulate issues in the way he understands with a bias for his client’s case, such issues so formulated must relate to the grounds of Appeal filed by the Appellant. He can only go outside it if he filed a cross appeal or Respondent’s notice. He does not have unrestrained or unbridled freedom to raise issues for determination which have no bearing or relevance to the grounds of Appeal filed by the Appellant. In other words, a Respondent is not duty bound to adopt the issues raised in the Appellant’s brief of argument. He is at liberty to formulate his own issues for determination provided they are derived from the existing grounds of appeal. See OSSAI VS WAKWAH (2006) 2 SCNJ 19; ALL PROGRESSIVE GRAND ALLIANCE VS CHIEF VICTOR UMEH & ORS. (2011) 2-3 SC (PT 1) 139, KHALED BARAKAT CHAMI VS. UBA PLC (2010) 2-3 S.C. (PT 11) 92.
In the instant appeal, the sole issue formulated by the Respondent reads thus:-
“Whether the Respondent is not entitled to the sum of N3, 300,000.00 being the sum he magnanimously conceded to accept in place of his land which the 1st Defendant sold to the 2nd Defendant.”
I have read the five grounds of appeal filed by the Appellant and my finding is that the sole issue formulated by the Respondent related to grounds 2, 3 and 4 in the Notice of Appeal and as such, cannot by any stretch of imagination be said to be incompetent. The learned counsel for the Respondent dutifully couched the said issue to suit his client’s case and the law allows it. The Appellant’s objection is therefore overruled.

I will now deal with the issues in contention as raised in the Appellant’s brief.

The Appellant herein had formulated five issues for determination and a sole issue in the alternative. The said alternative issue is contextually in tandem with the sole issue formulated in the Respondent’s brief of argument. I will therefore adopt the said alternative sole issue in the consideration of this appeal as I am of the humble view that it will adequately resolve the subject matter of dispute between the parties.
The said sole alternative issue reads thus:-
“Having regard to the totality and evaluation of oral and documentary evidence before the trial Court, whether the Appellant was still liable for the domestic arrangement between the Respondent and the 1st Defendant as regards the N2.5million in the land transaction.”

The Appellant’s main grouse is that the learned trial Judge expunged Exhibit P3 from the record in the course of writing the judgment and which exhibit was the centre piece of the transaction, subject matter of this suit. The reasons given for expunging the said document earlier admitted as Exhibit P3 during the trial is that stamp duty was not paid as required by Section 21 (4) of the Stamp Duties Law 1976 applicable to Edo State.
For clarity purposes, I herein below set out the finding of the learned trial Judge as contained at pages 69 to 70 of the record of appeal. It reads:-
“Secondly, Exhibit P3 which is a copy of a Deed of Transfer between the Plaintiff and 2nd Defendant and even if it is taken to be a receipt to show that the 2nd Defendant paid the sum of N800,000.00 to the plaintiff as the balance of the purchase price, the said Exhibit P3 is not stamped as stamp duty was not paid on it. The law is clear on this pursuant to the Stamp Duties Law applicable in Edo State, which enjoins stamp duty to be paid on such documents before it can be tendered in evidence. See Section 21(4) of the Stamp Duties Law 1976. In the circumstance, Exhibit P3 is hereby expunged having not complied with the requirements of that Section 21(4) of Stamp Duties Law 1976.”
From the above set out portion of the judgment of the learned trial Judge, it is quite clear that the status of Exhibit P3 in terms of document of title which requires registration on evidence of proof of receipt of payment for the purchase of the land was not addressed specifically by the learned trial Judge. In other words, it does not constitute the ratio decidendi from which a ground of appeal could be raised and issue for determination formulated therefrom. In this regard, I view arguments of counsel on the issue whether Exhibit P3 was tendered and admitted in evidence as a document showing title to land or as evidence of receipt of payment as a fortuitous expedition into the unwarranted and unnecessary. The learned trial Judge did not in any way address that as the basis for expunging Exhibit P3 from the record. The only ground or reason given for doing so is that Exhibit P3 did not comply with the requirements of Section 21 (4) of the Stamp Duties Law 1976. It is there in black and white at page 69 of the record of appeal wherein it was stated thus:-
“In the circumstance, Exhibit P3 is hereby expunged having not complied with the requirement of that Section 21 (4) of Stamp Duties Law 1976.”
Now, the question is whether the learned trial Judge was right to have expunged the said Exhibit P3 from the record for the reasons aforestated?
For the Appellant, the learned trial Judge acted wrongly because non-stamping of a relevant and duly admitted document is not enough to expunge same from the record. Rather, an order ought to have been made for the said document, Exhibit P3 to be taken for stamping or penalty paid for same.
The Respondent’s counsel however viewed it differently. He is of the stance that the learned trial Judge acted correctly by expunging Exhibit P3 from the record because it was not duly stamped in compliance with Section 21 (4) of the Stamp Duties Law, 1976.
In the resolution of the issue whether the learned trial Judge was right in expunging Exhibit P3 from the record on the ground of non-compliance with the provisions of Section 21 (4) of the Stamp Duties Law, 1976, recourse shall be had to the Supreme Court decision in the case of OKUWOBI VS JIMOH ISHOLA (1973) 3 SC 43 where it was held that a document could not be rendered inadmissible on the ground of non stamping. This is because the purpose of the requirement of stamping is to ensure that government does not lose revenue thereby. In this regard, a Court faced with such a scenario should direct that the document in question be taken for stamping and then receive it in evidence. The above stated authority was also followed and applied by this Court in the case of OGBAHON VS REGISTERED TRUSTEES OF CHRIST’S CHOSEN CHURCH OF GOD & ANOR (2001) FWLR (PT 80) 1496 wherein at page 1520 to 1521 it was held thus:-
“With regard to the stamping of Exhibit D2, I agree with the observation of the learned Senior Advocate for the Appellant that it was not stamped. It is trite that where a document is unstamped, it is not inadmissible merely because it was not stamped since the purpose of stamping is to ensure revenue. Such document could only be duly ordered to be stamped and admitted in evidence. See OKUWOBI VS ISHOLA (supra) at page 48 and Section 72 (2) and (3) (a) (b) of the Stamp Duties Law Cap. 155 Laws of Bendel State as applicable to Edo State. Section 72 (ante) provides inter alia, that unstamped document shall be admitted upon payment of fine which fine shall be noted upon the face of the document. However, the document which is so admitted shall not be deemed to be duly stamped but shall be available for the purposes of the suit in which it is tendered in evidence and for the purpose only.
Since the trial Judge has ordered that the respective stamp duty be paid, the requirement of the law is therefore complied with.” See also FBN PLC VS I.G.M COTTON MILL LTD & ORS (2014) LPELR 23306 (CA) and ETOKHANA VS NDIC & ANOR (2016) LPELR – 41169 (CA).
In the light of the above cited authorities also referred to by learned counsel for the Appellant, it goes without emphasis that the learned trial Judge was wrong to have expunged Exhibit P3 from the record on the ground that it was not stamped. The proper thing to do is to direct that the document be stamped or that fine should be paid and which fine shall be noted upon the face of the document in compliance with the relevant law.

On the contention by learned counsel for the Appellant that the Respondent is caught by estoppels by conduct in maintaining the action which borders on documentary evidence, the learned trial Judge adequately addressed the issue wherein it was held at page 69 of the record as follows:-
“The learned counsel for the 2nd Defendant had submitted that the plaintiff is bound by Exhibit P3 and that the plaintiff is stopped from bringing this suit. Firstly, the 2nd Defendant did not plead estoppels in her statement of defence and she cannot rely on it as it was not pleaded.”
I cannot but agree with the learned trial Judge on this stance as above set out and this is based on available authorities, both ancient and modern. In DEDEKE & ORS VS WILLIAMS & ANOR (1934) 10 WACA 164 which was duly applied and followed by the Supreme Court of Nigeria in CLAY INDUSTRIES VS AINA (1997) 7 SCNJ 501, it was held that estoppels must be pleaded before the trial Court otherwise it cannot be raised on appeal. In SOSAN & ORS VS ODEMUYIWA (1984) 1 NSCC 673, the Apex Court also held that an estoppels must be clearly and specifically pleaded or else it must be so apparent that Court has a duty to consider it. Further in UKAEGBU & ORS VS UGOJI & ORS (1991) 6 NWLR (PT 196) 127, it was held per Karibi Whyte JSC that a party relying on estoppels must specifically plead it. He relied on the older authorities of OWONIYI VS OMOTOSHO (1961) 1 All NLR 304 and OBANYE VS OKWUNWA & ANOR (1930) 10 NLR 8. In ARO VS ARO & ANOR (2000) LPELR – 6782 (CA), this Court per Onnoghen JCA (as he then was) held at pages 10 -11 that:-
“It is the law that equitable defences like laches, acquiescence, estoppels, etc must be specifically pleaded particularly. See IBENEME VS LAWAL (1971) 1 All NLR 23. It follows therefore that for a party to avail himself of the plea of res judicata or estoppels, he should have pleaded it specifically. If it is not so pleaded, it cannot be raised at the trial Court or on appeal. See OBANYE VS OKUNWA (1930) 10 NLR 8.”
The above cited authorities no doubt put paid to the assertion by the Appellant’s counsel that only estoppels per rem judicata and not estoppels by conduct that must be specifically pleaded.
I therefore hold that the learned trial Judge was right to have held that since the Appellant did not plead estoppels in her statement of defence, she cannot rely on it at the hearing.

That notwithstanding, Exhibit P3 was found by this Court to have been wrongly or erroneously expunged from the record by the learned trial Judge in the course of writing the judgment and as such was not considered part of the case of the Appellant who had relied on the said document as the bedrock of her defence. This no doubt led to a miscarriage of justice as rightly argued by the Appellant’s counsel.

The said Exhibit P3 is hereby restored into the records of proceedings of the trial Court as part of the evidence to be considered by the trial Court. The necessary stamp duty applicable to the documents of that class shall be paid by the Appellant to the appropriate authority within 60 days from the date this judgment is delivered.

Now, it is of common acceptance to the parties that the crux of this appeal is the status of Exhibit P3 in the case before the trial Court. The said Exhibit P3 is a documentary evidence which makes it appropriate and plausible for this Court to invoke the provisions of Section 15 of the Court of Appeal Act in doing that which the trial Court would have done in the circumstance. This is so given that any other approach to the contrary, such as an order of retrial shall work grave injustice and inconvenience on the parties as well as the trial Court having regard to the fact that the suit commenced in the trial Court in the year 2007 and judgment was delivered in 2009. It therefore behoves this Court to do the needful in ensuring that justice is done to all the parties.
The Appellant’s contention is that the learned trial Judge did not advert his mind to the crucial fact that the relationship between the Respondent and the Appellant was strictly contractual having regard to the content of Exhibit P3. This he says, would have enabled the learned trial Judge to conclude that the Appellant and Respondent agreed that the Appellant should pay the sum of N800,000.00 while the Respondent recovers the sum of N2.5million from the 1st Defendant (Madam Esther Ayore) and which sum the Appellant paid to her for the purchase of the land. He also argued that it was unreasonable for the trial Court to have ordered that the said sum of N2.5 Million be paid again by the Appellant to the Respondent as this will amount to double compensation and an encouragement of fraud.

The Respondent’s counsel was however of the stance that the Respondent was not a party to the sales agreement or Deed of transfer of his land made between the Appellant and the 1st Defendant wherein the Appellant paid the sum of N2.5 Million to the 1st Defendant. He added that legally and otherwise, the Respondent cannot therefore claim the said sum of N2.5 million from the 1st Defendant because there is no nexus between them with regard to the transfer agreement made between the Appellant and the 1st Defendant.

Now, from the facts of the case as earlier detailed in this judgment, it is not in a dispute that:-
a) The land, subject matter of the sale belonged to the Respondent by way of inheritance from his late mother.
b) That the 1st Defendant was a witness to the Deed of assignment made between the Respondent’s mother and the Elema family.
c) That upon the demise of the Respondent’s mother and without the knowledge of the Respondent who was domiciled in Germany, the 1st Defendant who was looking after the land in his absence fraudulently sold the land to the Appellant for the sum of N2.5 Million.
d) That upon the discovery of the fraudulent act by the 1st Defendant, the Respondent reacted as necessary but one Prince Elema intervened and urged the parties to settle the matter amicably.
e) That during the settlement process, the 1st Defendant admitted to have sold the land to the Appellant fraudulently by misrepresenting to her that she was the daughter of the Respondent’s mother and was paid N2.5 Million for the land.
f) That the Respondent in the interest of peace opted to leave the land for the Appellant but with the price increased to N3.3 Million.
g) That the sum of N2.5 Million earlier paid shall be recovered from the 1st Defendant while the Appellant pay the balance sum of N800, 000.00 to the Respondent.
h) That a Deed of transfer between the Appellant and the Respondent was made on that basis.

Now, the said Deed of transfer between the Respondent and the Appellant confirming the formal transfer of the land is the controversial Exhibit P3 which the Appellant relies on in exculpating herself from any further liability for the purchase of the land.

The said Exhibit P3 is titled, DEED OF TRANSFER with the Respondent as the Transferor and the Appellant as the Transferee. It was made on the 24th day of October, 2005. The content presupposes that there is an agreement for the sale/transfer of land between the Respondent and the Appellant.

Paragraphs 4, 5, 6, 7 and 8 of the agreement are relevant and they are herein below set out:-
“4. That Madam Emwinghama Omoregie subsequently repurchased the said parcel of land vide agreement made sometimes in 1996 from the administrators of Estate of late Chief Owen Elema who died intestate on 14th February 1966, that is; Prince Sunday Elema and Prince Friday Elema who were granted letters of administrator on 29th day of October, 1966 as part of the Estate measuring 1218.705 square metre in abuttals and dimensions bounded by license survey Beacon Numbers PC6811, PC6812, PC6813, PC6814, ED1088 and particularly delineated in survey plan No. ISO/ED/39/96 dated 21st March, 1996 of Madam Emwinghama Omoregie.
5. That following the death of Madam Emwinghama Omoregie intestate, the transferee hereinbefore mentioned (Mrs Denise Abieyuwa Ogbemudia) purchased or/and acquired the said piece or/and parcel of land from one Madam Felicia Omoregie vide agreement dated 7th day of February, 2005 at a price or/and consideration of Two Million, Five Hundred Thousand Naira only (N2,500,000.00) as Madam Felicia Omoregie claimed to be the first (1st) daughter of Madam Emwinghama Omoregie and became seised of the land via a gift inter vivos by her mother.
6. That subsequent taking possession of the said parcel of land by the transferee hereinabove mentioned met with protest, which investigations revealed that Madam Felicia Omoregie (whose true/real name is Madam Esther Ayore or Mama Egerton) was not the true daughter of Madam Emwinghama Omoregie but a family member who was the caretaker of the said parcel of land on behalf of the family and Felix Omoregie residing in Nurnberg Germany – the Donor of power of Attorney to Dike Clement Esq., who is the family lawyer and present throughout various meetings with the family and negotiations; with the added responsibility of claiming from Madam Esther Ayore (Mama Egerton) without any legal/financial burden or otherwise on the transferee hereinbefore mentioned.
7. On the date hereinabove written, the TRANSFEROR hereinbefore described in exercise of his said freehold via inheritance, sold and transferred unto the TRASFEREE hereinbefore described free from any encumbrances.
8. The TRANSFEROR at the request of THE TRANSFEREE both hereinbefore described have agreed to sell, transfer, and adding the said parcel of land unto the TRANSFEREE in the like estate for a consideration hereinafter stated.”
From the above set out portion of the agreement, particularly paragraph 6, it is clearly shown that the Respondent formally sold the land in question to the Appellant taking into cognisance the sum of N2.5 Million already paid to the 1st defendant by the Appellant and which sum the Respondent undertook to reclaim from the 1st Defendant, Madam Esther Ayore (Mama Egerton) and without any financial or legal burden on the Appellant. The consideration section of the agreement made this clearer by providing as follows:-
“That in pursuance of the said agreement and in consideration of the additional sum of Eight Hundred Thousand Naira only (N800,000.00) now paid by the transferee to the Transferor the receipt whereof the transferor acknowledged as the beneficial owner, the Transferor hereby sells, transfers unto the transferee all that piece or parcel of land situated and or lying and being at WARD “A”, Evbo-Elema Quarters, Benin City measuring one hundred feet by one hundred feet (100 x 100) including the added extension of land within the fence…”

To my mind, the import of the agreement between the Appellant and the Respondent is that due account was taken for the sum of N2.5 Million already paid by the Appellant to the 1st Defendant. In this regard, the difference of N800,000.00 which made up the total sum of N3.3 Million being the purchase price of the land as agreed to by the parties was paid and receipt thereof acknowledged by the Respondent.

In the instant case, the parties have duly agreed that the purchase price of the land shall be N3.3 Million and that the Appellant shall pay the extra sum of N800, 000.00 in addition to the N2.5 Million earlier paid to the 1st Defendant who was the caretaker of the land and which sum the Respondent shall recover from her without any legal or financial burden or otherwise on the Appellant.

Learned counsel for the Respondent had also contended that Exhibit P3 was not anywhere pleaded by any of the parties and that the Appellant did not lead any evidence in respect of the said Exhibit P3, the fact that it was tendered through the Respondent notwithstanding.

For a start, it is not correct to state that the Appellant did not plead Exhibit P3 having regard to the averment in paragraph 10 of the amended statement of defence which reads thus:-
“(10). The 2nd defendant denies paragraph 24 of the statement of claim and avers further that she paid cash balance of N800,000.00 (Eight Hundred Thousand Naira) to the plaintiff as full and final settlement of the transaction who then issued receipts to cover the transaction through her counsel S.O. Agbonlahor Esq. The receipts shall be founded upon during the trial of the case. Notice is hereby given to the plaintiff to tender all receipts and agreement documents entered with the …plaintiff with the 2nd Defendant.”

The above set out paragraph of the amended statement of defence shows that the Appellant pleaded the said Exhibit P3 or at least satisfies the requirements for the pleading of a document and the evidence elicited from the Respondent by the Appellant’s counsel during cross examination can be used as evidence in his favour provided it is pleaded. See BEMIL (NIG) LTD VS EMERIBE & ORS (2009) LPELR – 8732 (CA); MALUMFASHI VS KARFI & ANOR (2009) LPELR – 8363 (CA); JIMOH VS AYANDOYE & ORS (2012) LPELR – 8006 (CA).
Under cross-examination by learned counsel for the Appellant, the Respondent stated at pages 52 to 53 of the record as follows:-
“It is true that I received N800, 000.00 from the 2nd defendant and issued receipt for it. What I have here in my hand is a copy of the agreement between the plaintiff and the 2nd defendant.
Agbonlahor: we seek to tender a copy of the agreement.
Ebom: No objection.
Mcfoy: No objection.
COURT: The copy of the Deed of Transfer dated 24th of October, 2005 is admitted in evidence and marked as Exhibit P3.”
It follows therefore that to all intents and purposes, Exhibit P3 was duly pleaded and evidence in support therefore was elicited from the Respondent. The case of EVA ANIKE AKOMOLAFE & ANOR VS GUARDIAN PRESS LTD (PRINTERS) & ORS 2010 LPELR – 366 (SC) is very apt on this point wherein it was held per Onnoghen JSC (as he then was) that “it is settled law the evidence elicited from a party or his witness under cross-examination which goes to support the case of the party cross examining, constitutes evidence in support of the case or defence of that party. If at the end of the day, the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence”.

On the whole, I find that this appeal is meritorious and it is hereby allowed.

The judgment of the High Court of Edo State delivered on the 28-9-2009 is hereby set aside.

For emphasis, the document Exhibit P3 shall be presented before the relevant authorities for stamping and payment of applicable penalty within 60 days from the date of delivery of this judgment.
Parties shall bear their costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the Judgment just delivered by my learned brother Samuel Chukwudumebi Oseji JCA. I agree with the reasoning and conclusions therein that this appeal has merit and should be allowed. Appeal Allowed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, Samuel Chukwudumebi Oseji, JCA.

I agree with the decision allowing this appeal and, for the elaborate reasons given in the leading judgment, I also allow the appeal.

I abide by all the orders made by my learned brother, including the order as to costs.

Appearances:

S.O AGBONLAHOR For Appellant(s)

C.N. DIKE, with him, D.O. ADEBAYO For Respondent(s)