OKANLAWON & ORS v. NKANU INTERBIZ (NIG) LTD & ORS
(2020)LCN/15480(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, December 02, 2020
CA/E/614/2014
RATIO
DUTY OF COURT: EVALUATION OF EVIDENCE: CIRCUMSTANCE IN WHICH an appellate Court MAY justifiably interfere where the decision OF A TRIAL COURT
While evaluation of evidence and ascription of probative value thereto is the exclusive preserve of the trial Court which had the benefit of seeing, hearing and observing the demeanors of the witnesses, an appellate Court will justifiably interfere where the decision is shown to be perverse. See IRIRI & ORS VS. ERHURHOBARA & ANOR (1991) LPELR-1536(SC).
The totality of these gaffes and misses is that the judgment of the learned trial Judge was perverse and liable to be set aside in the circumstances. The wide concept of perversity includes a judgment predicated on an evaluation where legal evidence was wrongfully excluded and the pollution of irrelevant considerations allowed seep through. See ATOLAGBE VS SHORUN (1985) LPELR-592 (SC), AKINYEMI VS AKINYEMI & ANOR (1963) LPELR-15457(SC), CIVIL DESIGN CONSTRUCTION (NIG) LTD VS. SCOA (NIG) LIMITED (2007) LPELR-870 (SC) and ADEKEYE & ORS VS. ADESINA & ORS (2010) LPELR-103 (SC). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
LITIGATION: IMPLICATION OF THE FAILURE OF A PARTY WHO HAS BEEN SERVED WITH THE ARGUMENTS OF HIS OPPONENT, TO COUNTER OR PROFFER ARGUMENTS IN OPPOSITION TO THE SAID ARGUMENTS
The law is that the failure of a party who has been served with the arguments of his opponent, to counter or proffer arguments in opposition to the said arguments, implies that he has conceded those arguments. See DR. ARTHUR NWANKWO & ORS VS. ALHAJI UMARU YAR’ADUA & ORS (2010) 12 NWLR (PT 1209) 518. That a party concedes the argument of his opponent would however not automatically confer legal validity on the conceded argument where such was ab initio devoid of legal validity. Parties cannot by agreement confer legality where there was none. Therefore, notwithstanding the failure to contest an argument, the Court is obligated to examine the merits thereof. See TANKO VS UBA PLC (2010) 7 NWLR (PT 1221) 80, ADEYEMI & ORS VS HARUNA & ORS (2018) LPELR-44538(CA) and DHL INTERNATIONAL (NIG) LTD VS ADEMOLA (2018) LPELR-46041(CA). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
COMPETENCE OF COURT: WHETHER A COURT CAN SIT ON APPEAL ON ITS OWN DECISION
Having considered and ruled on an issue, it is certainly not within the legal competence of the same trial Court to revisit the same issue and reverse itself. Having taken a decision upon considering the full submissions of the parties before it, the trial Court was functus officio and could not take a second bite at the cherry. See SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC) at 19.
The decision to consolidate the two suits was in essence effectively negated by the later position that one of the consolidated suits could no longer be considered on the merits despite the full hearing already conducted. A Court cannot sit on appeal on its own decision. See COLE VS. JIBUNOH & ORS (2016) LPELR-40662 (SC), HYDROWORKS LTD VS. RIMI LG (2001) LPELR-5712 (CA),EMORDI ORS. VS. KWENTOH & ORS (1996) LPELR-1135 (SC) and AKPORUE & ANOR VS. OKEI & ORS (1973) LPELR-388 (SC). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
1. O. G. OKANLAWON 2. NIGERIAN NATIONAL PETROLEUM CORPORATION 3. MALPHINA PRESS LTD APPELANT(S)
And
1. NKANU INTERBIZ (NIG) LTD 2. MR IKE OKAFOR 3. THE COMMISSIONER FOR LANDS SURVEY AND TOWN PLANNING, ENUGU STATE RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, delivered on the 25th day of February, 2014 by OZOEMENA, J.
The 1st Respondent was locked in ownership tussle with the 2nd Appellant in respect of a property situate at and known as Plot 18 Uwani Central Layout, Enugu, otherwise known as No. 7 Ikwuato Street, Uwani, Enugu. The 1st Respondent then took out an action, Suit No. E/345/2002 at the trial Court wherein it sought the following reliefs:
(a) An order of perpetual of injunction restraining the defendants whether by themselves or their agents, functionaries, representatives, cronies, cohorts and/or privies from further trespass to all that piece or parcel of land together with the buildings erected thereon at Plot 18 Uwani Central Layout, Enugu otherwise called No. 7 Ikwuato Street, Uwani, Enugu.
(b) General damages of N10,000,000 (ten million naira) against the defendants jointly and severally for their trespass in respect of the Plot 18 Uwani Central Layout, Enugu, otherwise called No. 7 Ikwuato Street, Uwani, Enugu.
The initial defendants to the said action were the 1st and 2nd Appellants but subsequently, the 3rd Appellant and 2nd Respondent were added. On being served, the Appellants filed a statement of defence and counter-claim wherein they sought the following reliefs:
(a) For an order of this Honourable Court setting aside as null and void the said Irrevocable Power of Attorney dated 1/11/89 which was on 26/9/2000 registered as No. 80 at page 80 in Volume 1470 of the Lands Registry, Enugu purported to have been issued in favour of Mr. Ike Okafor in respect of No. 7 Ikwuato Street, Uwani, Enugu as same was not issued by Malphina Press Limited the owner of the said property which had sold same to the 2nd Defendant.
(b) For an order to set aside as null and void the Power of Attorney dated 2/1/2001 donated by the said Mr. Ike Okafor to the Plaintiff which was on 26/2/2001 registered as No. 85 at page 85 in Volume 1473 of the Lands Registry, Enugu in respect of the subject property as same was based on a null foundation as stated supra.
(c) For an order to set aside as null and void the said Deed of Assignment dated 2/1/2001 and registered as No. 36 at Page 36 in Volume 1483 of the Lands Registry, Enugu made by the said Mr. Ike Okafor.
(d) N5,000,000.00 damages against the plaintiff for trespass into the said No. 7 Ikwuato Street, Uwani, Enugu as plaintiff colluded with the elusive Mr. Ike Okafor to perpetrate the fraudulent transfer of the said property.
The 2nd and 3rd Appellants went further to take out a separate action, Suit No. E/565/2003 against the Respondents wherein they sought the following reliefs:
(a) A declaration that 1st Plaintiff did not donate or grant any Power of Attorney in respect of the land known as Plot 18 Uwani Central Layout, Enugu otherwise known as No. 7 Ikwuato Street, Uwani, Enugu to the 1st Defendant Mr. Ike Okafor.
(b) A declaration that the Irrevocable Power of Attorney with respect to Plot 18 Uwani Central Layout, Enugu purported to have been granted by the 1st Plaintiff to Ike Okafor, the 1st Defendant dated 1st November, 1989 and registered by the 3rd Defendant on 26/9/2000 as No. 80 at page 80 in Volume 1470 of the Lands Registry in the office at Enugu is baseless, a forgery, illegal, null and void and of no effect whatsoever.
(c) A declaration that the Power of Attorney dated 2nd January, 2001 and registered as No. 85 at Page 85 in Volume 1473 in the Lands Registry, Enugu which is the office of the 3rd Defendant by which the 1st Defendant, Mr. Ike Okafor purported to have donated his title and interest in respect of Plot 18 Uwani Central Layout, Enugu otherwise known as No. 7 Ikwuato Street, Uwani, Enugu to the 2nd Defendant, Nkanu Interbiz Nigeria Limited is baseless, illegal, null and void and of no effect whatsoever.
(d) A declaration that the Deed of Assignment dated the 2nd day of January, 2001 and registered as No. 36 at page 36 in Volume 1483 in the Lands Registry, Enugu which is the office of the 3rd Defendant by which the 1st Defendant transferred title in the said No. 7 Ikwuato Street, Uwani to the 2nd Defendant is baseless, illegal, null and void and of no effect whatsoever.
(e) An order of perpetual injunction restraining the 1st and 2nd Defendants from interfering with the Plaintiffs’ rights and interest with respect to the said Plot 18 Uwani Central Layout, Enugu otherwise known as No. 7 Ikwuato Street, Uwani, Enugu.
(f) An order of perpetual injunction restraining the 1st and 2nd Defendants, their servants, agents and privies from entering into, remaining on, alienating, selling, mortgaging leasing, letting either the whole or part of the Landed Property known as Plot 18 Uwani Central Layout, Enugu otherwise known as No. 7 Ikwuato Street, Uwani, Enugu.
(g) An order of the Honourable Court directing the 3rd Defendant to cancel the Registration of
(i) The irrevocable Power of Attorney dated 1/11/89 registered as No. 80 at Page 80 in Volume 1470 of the Lands Registry,
(ii) The Irrevocable Power of Attorney dated 2/1/2001 registered as No. 85 at Page 85 in Volume 1473 of the Lands Registry, and
(iii) The Deed of Assignment dated 2/1/2001 registered as No. 36 at Page 36 in Volume 1483 of the Lands Registry, Enugu as the said documents are baseless, illegal and null and void.
(h) An order of the Honourable Court directing the 1st and 2nd Defendants to render an account of all the rents, takings and receipts received by them paid and payable in respect of the said Plot 18 Uwani Central Layout, Enugu from 1st January, 1993 to date and to pay same over to the 2nd Plaintiff.
(i) General damages of N10,000,000.00 (Ten Million Naira) jointly and severally against the 1st and 2nd Defendants for their unlawful interference and trespass in respect of the said Plot 18 Uwani Central Layout, Enugu otherwise known as No. 7 Ikwuato Street, Uwani, Enugu in favour of the Plaintiffs.
The said Suit No. E/565/2003 was contested by the 1st Respondent through a statement of defence. The two Suits were eventually consolidated and heard together. The Managing Director of the 1st Respondent was the sole witness for its case while the testimonies for the other side came through 3 witnesses comprising, the 1st Appellant who was a staff of the 2nd Appellant, an official in the legal department of the 2nd Appellant and a police officer who investigated the complaint of the 2nd Appellant.
The case of the 1st Respondent was that it was the bonafide owner of the said property in dispute having purchased it from the 2nd Respondent who derived his title from the 3rd Appellant, the undisputed original owner thereof upon which the registered documents supporting its case were put in evidence. The contending claim of the 2nd Appellant was that it purchased the said property from the 3rd Appellant and was put in possession until displaced by the 1st Respondent whose title it argued was fraudulent. The 3rd Appellant and the 2nd Respondent who played keys roles in the contending transactions did not testify at the trial.
After taking the final addresses of counsel, the learned trial Judge separately considered the two suits and the counter-claim of the 1st and 2nd Appellants in a composite judgment which was delivered as aforesaid on the 25th February, 2014 wherein Suit No. E/565/2003 was found to be an abuse of the Courts process and was consequently dismissed. Suit No. E/345/2002 was resolved in favour of the 1st Respondent and its reliefs were granted while the counter-claim of the Appellants was dismissed as unmeritorious.
Dissatisfied with this outcome, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 20th May, 2014 containing thirteen grounds. The said Notice of Appeal was subsequently amended via the Amended Notice of Appeal filed on the 19th December, 2014 but deemed properly filed and served on the 8th April, 2016 this time containing fourteen grounds. The appeal was only contested by the 1st Respondent as the other Respondents elected to stay away despite notifications.
At the hearing of the appeal, Mr. Ekoh, the learned lead counsel for the 1st Respondent drew attention to his preliminary objection to the competence of the Appeal, filed on the 16th December, 2016. He adopted the arguments in respect thereof on pages 5-7 of his 1st Respondent’s brief filed on 16th December, 2016. In response thereto, Chief Ugolo, SAN the learned senior counsel for the Appellants, adopted the arguments on pages 2-4 of the Reply brief filed on the 5th October, 2017.
The stated grounds for the said objection are as follows:
1. The 1st Respondent as Plaintiff filed Suit No: E/345/2002-Nkanu Interbiz Nig. Ltd vs O. G. Okanlawon & 3 Anor on the 22/5/2002. Upon service of the processes on the Appellants as Defendants, they filed a joint statement of Defence and counterclaim to the Appellants. (sic)
2. The Appellants also filed Suit No. E/565/2003- Maphina Press Ltd & Anor vs Mr. Ike Okafor & 2 Ors over the same subject matter and basically the same parties on the 22/7/2003.
3. The both cases were subsequently consolidated with leave of Court, pursuant to the application of the Appellants at the trial Ccourt when his counsel was reacting to the application filed by the 1st Respondent, Nkanu Interbiz Nig. Ltd wherein he applied to strike out the later suit filed by the Appellants i.e. Suit No. E/565/2003 for being an abuse of Court process.
4. The cases were then heard at the trial Court as consolidated suit and on the 25/2/2014, the trial Court gave two Judgments in the both suits.
5. In the first Judgment delivered by the trial Court which was in respect of Suit No. E/565/2003, the claim of the Appellants as plaintiffs was dismissed.
6. On the other hand, the trial Court in delivering its Judgment in Suit No: E/345/2002, granted the 1st Respondent, Nkanu Interbiz Nig. (Ltd) as plaintiff her reliefs/claim.
7. Rather than file two separate notices of appeal against the two suits and two judgments delivered on the said 25/2/2014, the Appellants filed only one notice of appeal on the 20/5/2014 against both suits and Judgments. The Appellants subsequently amended the said notice of appeal with leave of this Court on the 8/4/2016.
8. Apart from the fact that the Appellants did not file separate appeals against the said two suits and Judgments, the Appellants also consolidated the both appeals without leave of this Court and filed a single brief of argument to same.
9. The Appellants appeal is therefore incompetent and an abuse of Court process.
Arguing the said preliminary objection, Mr. Ekoh reviewed the facts and submitted that consolidated actions naturally produce separate judgments which should attract separate notices of appeal. He contended that the appeal is incompetent having emanated from a single notice of appeal in respect of two separate judgments. He referred to OGUNDIRAN VS C.O.P. (2004) ALL FWLR (PT 230) 1154 at 1164-1165, THE INCORPORATED TRUSTEES OF THE GRAIL MOVEMENT OF NIGERIA VS LAWSON (2007) ALL FWLR (PT 371) 1697 at 1707-1708, ILOABUCHI VS EBIGBO (2000) ALL FWLR (PT 17) 78, AHURUONYE VS IKONNE (2015) ALL FWLR (PT 811) 1233 at 1299-1301 and ADRA VS GOVERNMENT OF NASARAWA (2015) ALL FWLR (PT 764) 70 at 101.
The response of Chief Ugolo, SAN was that an appellant in a consolidated suit need not file two separate notices of appeal and referred to IGWE VS KALU (1993) 4 NWLR (PT 285) 1 and AKINOLA VS V.C. UNILORIN (2004) 11 NWLR (PT 885) 616 at 634-635.
The learned Senior Counsel argued further that in line with the decision in OGUNDIRAN VS C.O.P (supra) cited by the Appellants, the Appellants would have filed two separate notices of appeal if the learned trial Judge had delivered two separate judgments but that as only one judgment was delivered it would have been incongruous to file two notices of appeal.
The narrow issue calling for determination in this preliminary objection is whether an Appellant in a composite judgment in consolidated suits may file a single notice of appeal or must of necessity file separate notices of appeal reflecting each of the consolidated suits.
In delivering a composite judgment in respect of the two consolidated suits, the learned trial Judge reflected separate considerations in respect of each of the suits thereby ensuring separate decisions in each of the said suits. This is in accordance with the legal principle that consolidation does not eliminate the separate existence of each of the suits but only ensures a consolidation of time and energy in the hearing and determination thereof. See NASR VS. COMPLETE HOME ENTERPRISES (NIG) LTD (1977) LPELR-1947(SC), OGIDI & ORS VS OKOLI & ORS (2014) LPELR-22925 and NGADIUKWU VS. MOGHALU & ORS (2014) LPELR-24366(CA), CHIKERE & ORS VS. OKEGBE & ORS (2000) LPELR-847(SC) and CHIDOLUE VS. OGBUNEBE & ANOR (2018) LPELR-44885(CA).
In CHIDOLUE VS. OGBUNEBE & ANOR (supra) this Court made an appraisal of the position of the law as regards the applicable principle in this regard following the earlier stance taken in NGADIUKWU VS. MOGHALU & ORS (supra) and stated per BOLAJI-YUSUFF, JCA thus:
“The Supreme Court decision in CHIKERE v. OKEGBE (supra) relied on by Learned Counsel for the appellant stated the nature of appeal from consolidated suits thus “when an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the Court below indicated that the part of the decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal. “The decision did not state clearly that an appeal against the decision in each of the consolidated suits can competently be made by filing a single notice against the composite judgment. However, this is an obvious implication of that decision. Therefore, in the light of the above quoted holding of the Supreme Court, an appeal against the decisions in the consolidated suit can be validly commenced by the filing of a single notice of appeal which expresses therein that the appeal is against the “whole decision” in the judgment. The notice of appeal commencing this appeal is therefore competent. In the case of CHIKERE V OKEGBE (2000) LPELR 847 (SC) AT 15 16 (G – B), relied on in the above decision, a composite judgment wherein all the issues in the two consolidated cases were jointly considered but separate pronouncements and orders were made in respect of each of the consolidated suits. In NGADIUKWU V MOGHALU a composite judgment was also delivered. The single notice of appeal filed in each of those cases was held to be valid because one composite judgment was delivered in respect of two consolidated cases. See CHIDOLUE VS. OGBUNEBE & ANOR (supra) at 12-14.”
In support of his position, Chief Ugolo referred us to the decision of the Supreme Court in IGWE VS KALU (supra) followed by this Court in AKINOLA VS V.C. UNILORIN (supra). For a clear appreciation of the reasoning of the Apex Court in IGWE VS KALU (supra) which case was not considered in the two earlier decisions of this Court in CHIDOLUE VS OGUNEBE & ANOR (supra) and NGADIUKWU VS MOGHALU & ORS (supra), I shall quote in extenso from pages 6-10 as follows:
“In the said notice of appeal, it was stated in the heading that the suits in respect of which the appeal was lodged were Suit Nos. HU/24/74 and HU/43/74. The plaintiffs in the notice of motion for interlocutory injunction which gave rise to this appeal also stated that the suit numbers in the High Court were Suit Nos. HU/24/74 and HU/43/74. The learned senior counsel further submitted that in spite of the foregoing, the learned Justices of the Court of Appeal in their ruling on the motion for interlocutory injunction held that the plaintiffs/applicants/appellants did not appeal against the dismissal of Suit No. HU/24/74. Learned senior counsel referred to page 99 lines 15-25 where the Court of Appeal stated thus- “In the present appeal, the defendants (applicants) who are the people of Etitiama had their action dismissed in Suit No.HU/24/74 against which they have lodged no appeal and Suit No. HU/43/74. They filed no counterclaim. If their appeal is allowed in the present case, they will not have a declaration in their favour: …” (italics for emphasis) It was submitted on behalf of the appellants that the true position is that the appellants were plaintiffs in HU/24/74 and they appealed against the dismissal of that suit. My answer to issue one is that the plaintiffs/appellants appealed against the whole decision of the High Court of Umuahia in the two consolidated suits (HU/24/74 and HU/43/74). The heading of the notice of appeal filed in the Court of Appeal reads: – “IN THE COURT OF APPEAL HOLDEN AT ENUGU SUITS NO. HU/24/74 AND HU/43/74(CONSOLIDATED).” In paragraph two of the notice of appeal it was also stated: – “Part of the decision of the lower Court complained of: The whole”. In paragraph four of the notice of appeal it was stated as follows: – “Reliefs sought from the Court of Appeal: (a) Allowing this appeal; (b) Setting aside the judgment dated 23:6:88 against the plaintiffs. (c) Judgment in favour of the plaintiffs’ (italics is for emphasis only). From the time the suits were consolidated, the plaintiffs/appellants in all the papers they filed had set out the two suits as consolidated. This is borne out by the notice of appeal filed against the judgment of the High Court, and the motion on notice for interlocutory injunction in the Court of Appeal which gave rise to the present appeal. In their said notice of appeal, the plaintiffs appealed against the whole decision of Njiribeako, J. sitting at Umuahia High Court and dated 23:6:88. The decision is that in the consolidated suits wherein the plaintiffs’ claim in HU/24/74 was dismissed and that of the defendants in HU/43/74 was allowed. The relief the plaintiffs sought from the Court of Appeal was for that Court to allow their appeal against the whole decision of Njiribeako, J. set it aside, uphold their claim in HU/24/74 and dismiss the defendants claim in Suit No. HU/43/74. The above are very elementary statements which are very clear and plain. I am therefore unable to see how the Court of Appeal in their ruling came to the conclusion that the plaintiffs did not appeal against the dismissal of Suit No. HU/24/74 and that the plaintiffs did not counter-claim so that at the end of the day, they would not have had the land in dispute declared as their land. The plaintiffs/appellants in Suit No. HU/24/74 claimed: (1) Declaration of title… (2) N100.00 general damages for trespass and (3) Perpetual injunction. The defendants in HU/43/74 claimed: – (1) Declaration of title…
(2) N20,000.00 general damages for trespass; and (3) Perpetual injunction. As stated above, both suits were consolidated. At page two paragraphs 2 of the judgment of the learned trial Judge, he said: “From the pleadings of the parties in both suits, the seven parcels of the land claimed by Etitiama Nkporo people in Suit No. HU/24/74 form one continuous stretch of farmland and cover exactly same area as the two parcels of land claimed by Amaeke Abiriba people in Suit No. HU/43/7:
Reading the claims of the parties and the statement of the learned trial Judge, Suit Nos. HU/24/74 and HU/43/74 are cross actions in respect of the same parcels of land. The reliefs sought by each party are the same except for the differences in the amount claimed as damages for trespass. How come the counter-claim which the Court of Appeal held was not filed by the appellants The Court of Appeal must have come to this conclusion when it erroneously described the plaintiffs as the defendants in its ruling. The Court of Appeal misdirected itself when it held that the appellants did not appeal against the dismissal of Suit No. HU/24/74 brought by them. It was the whole decision in the consolidated suits given by the learned trial Judge that the plaintiffs appealed against which if allowed would decree judgment in their favour and the decision in suit No. HU/43/74 will be set aside. There is no rule of law or practice requiring an aggrieved party in consolidated suits to file two notices of appeal if that is what the Court of Appeal meant in their ruling. The Court of Appeal was therefore clearly in error when it held that the appellants did not appeal against the dismissal of Suit No. HU/24/74 in which they were plaintiffs. (underlining mine).
It also seems that the position of Chief Ugolo, SAN was further strengthened by the pronouncement of AYOOLA, JSC at pages 15-16 of CHIKERE & ORS VS. OKEGBE & ORS (supra) thus:
“When an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the Court below indicated that the part of the decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal.”
The consolidated judgment delivered by the learned trial Judge in this instance clearly indicates the reasoning and conclusions in respect of the two consolidated suits. The Appellants filed a Notice of Appeal which on the face thereof straddles the decisions in the two suits and which cannot be invalidated in line with the decisions of the Apex Court earlier outlined and as stated by this Court in the earlier quoted portion of its decision in CHIDOLUE VS OGUNEBE (supra). I therefore hold that the Notice of Appeal herein is competent.
In the circumstances therefore, the preliminary objection is hereby dismissed for being unmeritorious.
I shall now proceed to the substantive appeal.
The Appellants distilled six issues for determination as follows:
a. Whether the Learned Trial Court was right in law to sit on appeal against its ruling of 12th May, 2004 when it dismissed the Notice of Preliminary Objection to hold that Suit No. E/565/2003 is an abuse of process because it was filed after the Counter-Claim in Suit No E/345/2002.
b. Whether the Learned Trial Court was right in law when it refused to use Exhibits Q, U and T because they were tendered in connection with Suit No E/565/2003 which he had dismissed and used Exhibit A which was pleaded only in the said Suit to find contradictions in the evidence of the Appellants witnesses and the expunged Exhibit K to enter Judgment for the Plaintiff in E/345/2002.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>c. Whether the Learned Trial Court was right in law when it refused to evaluate the evidence of the Appellants who were the 1st, 2nd and 4th Defendants in Suit No E/345/2002.
d. Whether the Learned Trial Court was right in law when it ignored all the contradictions and inconsistences in the evidence of PW1 and entered Judgment for the Plaintiff in E/345/2002.
e. Whether the Learned Trial Court was right in law when it ignored all the evidence of possession of the property in dispute by the Appellants.
f. Whether the Learned Trial Court was right in law when it relied on Section 23 of Lands Instrument Preparation Law of Enugu State and ignored Section 21 of the same Law which states that an instrument which is not registered within 6 months after its preparation is void and cannot be registered.
The 1st Respondent on its part distilled three issues in the substantive appeal as follows:
1. Whether the trial Court was right in dismissing the Appellant’s Suit No: E/565/2003 for being an abuse of Court process.
2. Whether the trial Court was right when it granted the 1st Respondent’s (Nkanu Interbiz (Nig.) Ltd)
claim/reliefs and dismissed the Appellant’s counterclaim in SUIT NO. E/345/2002 and whether the trial Court properly evaluated the evidence placed before it by the parties and ascribed probative value to same.
3. Whether the trial Court was right when it relied on Section 23 of the Land Instrument Preparation Law of Enugu State to validate exhibit D.
A perusal of the two sets of distilled issues for determination reveals that the issues of the Appellants appear to have better captured their grievances against the judgment of the trial Court as contained in the grounds of appeal. I shall therefore adopt the issues for determination formulated by the Appellants and juxtapose them with the appropriate arguments of the 1st Respondent. I shall take the issues seriatim.
The first issue is:
Whether the Learned Trial Court was right in law to sit on appeal against its ruling of 12th May, 2004 when it dismissed the Notice of Preliminary Objection to hold that Suit No. E/565/2003 is an abuse of process because it was filed after the Counter-Claim in Suit No E/345/2002.
Arguing this issue, Chief Ugolo, SAN submitted that the Respondent had earlier raised a preliminary objection to the competence of Suit No. E/565/2003 on the ground that it constitutes an abuse of process which objection was heard and dismissed with costs by the learned trial Judge. He then contended that it was improper for the same Curt to revisit the issue in the final judgment and sit on appeal on its earlier decision to reverse itself.
The learned Senior Counsel further submitted that the amended counter-claim of the Appellant was filed in 2010 while the action said to have constituted an abuse was filed in 2003 and that if properly considered the later action that should have been vacated was the amended counter-claim in Suit No. E/345/2002.
The counter-argument of Mr. Ekoh was that while the Appellant filed their joint statement of defence and counter-claim to Suit No. E/345/2002 on 14th March, 2003, they proceeded to file Suit No. E/565/2003 on the 22nd July, 2003. He submitted that a counter-claim being a separate action implied that the subsequent action, Suit N. E/565/2003 was an abuse of process. He referred to a plethora of authorities including DINGYADI VS INEC (2010) ALL FWLR (PT 550) 1204 at 1225 which he claimed was wrongly spelt in the judgment of the trial Court.
The learned counsel argued further that while the issue was earlier raised in a preliminary objection at trial, the said objection was never dismissed but that the trial Court opted to consolidate the two actions in line with the submission of the Appellants. He submitted that the learned trial Judge did not sit on appeal over his own decision as alleged by the Appellants.
In his Reply brief, Chief Ugolo, SAN reiterated that although details of the ruling of the trial Court was not included in the record of appeal, the objection of the 1st Respondent was considered and dismissed upon which cost was awarded against it. He urged the Court to consider the failure of the 1st Respondent to contest the issue when raised in the final address at the trial Court, as indication that the point was conceded back then. He referred to UGBOAJA VS SOWEMIMO (2008) 16 NWLR (PT 1113) 278 at 291-292 and DARAMOLA VS A.G. ONDO STATE (2000) 7 NWLR (PT 665) 441 at 468.
The contention of the Appellants in this regard is hinged on the ruling of the trial Court in respect of the Notice of Preliminary Objection filed on the 18th February, 2004 contained on pages 97-99 of the record of appeal. Therein the 1st Respondent objected to Suit No. E/565/2003 on the following grounds:
(1) The suit is an abuse of Court.
(2) The suit is incompetent and the Court lacks jurisdiction to entertain same.
The arguments in respect of the said objection are contained on pages 189-190 which showed that issues forming the basis of the later decision of the trial Court in the said Suit No. E/565/2003 were considered in respect of which ruling was stated to have been delivered on 12/5/2004. While the 1st Respondent urged the trial Court to strike out the said suit for being an abuse, learned counsel for the Appellant urged the said Court to consolidate the two suits involved instead of striking out the later suit for being an abuse. Page 102 of the record of appeal contains the enrolled order of the decision of the trial Court showing that after considering the submissions of the parties, it decided to consolidate the two suits instead of striking the later one out.
Having considered and ruled on an issue, it is certainly not within the legal competence of the same trial Court to revisit the same issue and reverse itself. Having taken a decision upon considering the full submissions of the parties before it, the trial Court was functus officio and could not take a second bite at the cherry. See SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC) at 19.
The decision to consolidate the two suits was in essence effectively negated by the later position that one of the consolidated suits could no longer be considered on the merits despite the full hearing already conducted. A Court cannot sit on appeal on its own decision. See COLE VS. JIBUNOH & ORS (2016) LPELR-40662 (SC), HYDROWORKS LTD VS. RIMI LG (2001) LPELR-5712 (CA),EMORDI ORS. VS. KWENTOH & ORS (1996) LPELR-1135 (SC) and AKPORUE & ANOR VS. OKEI & ORS (1973) LPELR-388 (SC).
I therefore resolve this issue in favour of the Appellants and against the 1st Respondent.
The remaining issues relate to evaluation and shall accordingly be taken together.
Chief Ugolo, SAN argued that while the learned trial Judge had earlier struck out Suit No. E/565/2003 along with the adduced evidence inclusive of the exhibits, one of the said exhibits, exhibit A was later founded upon to resolve the remaining Suit No. E/345/2002 against the Appellants. He further pointed out that the learned trial Judge also erroneously referred to exhibit K which was expunged along with the uncompleted testimony of PW2, in giving judgment in favour of the Respondent. The learned Silk then submitted that the learned trial Judge was guilty of making double talk contrary to the position stated in USHAE VS C.O.P. (2005) 2 NWLR (PT 937) 499. He further submitted that something cannot be placed on nothing and referred to MCFOY VS U.A.C. (1961) 3 WLR (PC) 1405 at 1409.
The learned Senior Counsel further argued that the trial Court failed to evaluate the evidence of the three witnesses of the Appellants in Suit No. E/345/2002 on the ground that their testimonies were tied to Suit No. E/565/2003 which had been dismissed while it considered the testimony of the sole witness of the 1st Respondent. He pointed out that contrary to the records showing repeated presence of officials of the 2nd Appellant at the trial, the trial Court stated that the said party did not appear throughout the duration of the trial. He equally alluded to the contradictory posture of the trial Court on the allegations of forgery made by the Appellants and then submitted that the findings of the trial Court was perverse and referred to DURWODE VS STATE (2000) 2 NWLR (PT 645) 392 at 412, KAMALU VS OJOH [2000) 11 NWLR (PT 679) 505 at 517, F.I.B PLC VS CITY EXPRESS BANK (2004) 6 NWLR (PT 689) 226 at 243, OGBORU VS UDUAGHAN (2012) 11 NWLR (PT 1311) 357 at 385-386 and ABUBAKAR VS NASAMU (No. 1) (2012) 17 NWLR (PT 1330) 407 at 469.
Chief Ugolo, SAN proceeded to the testimony of the sole witness of the 1st Respondent at trial and in analyzing it, submitted that the testimony was contradictory and conflicting and was of such poor quality that the trial Court ought not to have given it any evidential value.
The learned Silk further considered the adduced evidence on possession of the property in dispute and submitted that the trial Court misapprehended and ignored the pleadings and evidence of the Appellants in erroneously holding that the 3rd Appellant failed to prove ownership and possession of the property in dispute.
Finally, the learned senior Counsel for the Appellants argued that the trial Court was in error to have relied on Section 23 of the Land Instrument Preparation Law, Cap 100, Laws of Enugu State in giving effect to exhibit D an instrument registered about eleven years after it was made while ignoring Section 21 of the said legislation which voids instruments not registered within six months of the date thereof. He argued that ignorance of the law cannot avail a Court as repository of the law and referred to NNADOZIE VS MBAGWU (2008) 3 NWLR (PT 1074) 363 at 394.
Arguing in response, Mr. Ekoh submitted that a claimant seeking declaration of title to property has onus of establishing ownership in line with any of the five accepted modes of establishing ownership. He referred to a plethora of judicial decisions including MOGAJI VS ODOFIN (1978) 4 SC 91, BELLO VS ARUWA (1999) 8 NWLR (PT 615) 454 at 476, IDUNDUN VS OKUMAGBA (1976) 9-10 SC 227 and OLUKOYA VS ASHIRU (2006) ALL FWLR (PT 322) 1479 at 1495. He then outlined the evidence adduced by the two sides and submitted that the possession of the 1st Respondent having been conceded by the Appellants raised a presumption of ownership in favour of the said 1st Respondent in line with the judgment of the trial Court in addition to exhibit F which originated from a department under the 3rd Respondent.
Learned counsel further submitted that the Court was duty bound to uphold the contract duly entered into by parties and that in that regard, the trial Court rightfully attached probative value to exhibits A, B, C and D which formed the duly registered title documents of the 1st Respondent. He referred to UBN LTD VS OZIGI (1994) 3 NWLR (PT 333) 385 and BEST (NIG.) LTD VS BLACKWOOD HODGE (NIG) LTD (2011) ALL FWLR (PT 573) 1955 at 1969.
Mr. Ekoh further submitted that the 1st Respondent adduced credible evidence in support of the reliefs sought while the Appellants failed to adduced evidence in proof of their averments in their counter-claim to support their entitlement to the property in dispute thereby justifying the findings of the trial Court.
He contended that notwithstanding the fact that issues were not joined by the parties on the corporate status of the 3rd Appellant, it was incumbent on it to tender its certificate of incorporation as evidence that it was duly incorporated which it failed to do. He referred to ACB PLC VS EMOSTRADE LTD (2002) 8 NWLR (PT 770) 501, GOODWILL & TRUST INV. LTD VS WITT & BUSH LTD (2011) ALL FWLR (PT 576) 517 at 544, NNPC VS LUTIN INVESTMENT LTD (2006) ALL FWLR (PT 301) 1760 and F.B.I.R VS INTEGRATED DATA SERVICES LTD (2009) ALL FWLR (PT 490) 788 at 810-811.
Mr. Ekoh thereafter reviewed the evidence adduced by the Appellants and pointed out what he submitted constitute contradictions which, as per the trial Court, rightfully deprived the testimonies of probative value. He referred to OKEKE VS EJEZIE (2011) ALL FWLR (PT 603) 1811 at 1864, JEGA VS ALIU (2010) ALL FWLR (PT 502) 1069 at 1082, OBALOJA VS ETIKAN (1998) 6 NWLR (PT 553) 320 and IHEANACHO VS CHIGERE (2004) ALL FWLR (PT 226) 204 at 218.
Finally, on the Land Instrument Preparation Law (supra), Mr. Ekoh submitted that the trial Court rightfully applied Section 23 thereof to validate exhibit D as the date of registration was the effective date of land instruments while Section 21 could not be applied as it was neither raised in the pleadings or final address of the Appellants at trial. He therefore urged the Court to discountenance the arguments canvassed in relation thereto and referred to NIDOCCO LTD VS GBAJABIAMILA (2014) ALL FWLR (PT 724) 1 at 19, ODOM VS PDP (2015) ALL FWLR (PT 773) 1962 at 1976 and ADEBAYO VS STATE (2014) ALL FWLR (PT 743) 1994 at 2013-2014.
In his reply argument, Chief Ugolo, SAN pointed out that the 1st Respondent failed to respond to the Appellants’ arguments on issues two, three and five indicating that those issues had been conceded. He referred to ATIKU VS STATE (2010) 9 NWLR (PT 1199) 241 at 282, FEDERAL MINISTRY OF TOURISM VS EZE (2006) 2 NWLR (PT 964) 221 and IKPANA VS R.T.P.C.N. (2006) 3 NWLR (PT 966) 106 at 121.
With regards to the applicability of Section 21 of the Land Instrument Preparation Law (supra), Chief Ugolo submitted that the said section used to be Section 14 in the preceding Land Instrument Registration Law, Cap 72, Volume VI Laws of Eastern Nigeria, 1963 which was applicable when exhibit D was made.
He further submitted that there was nothing on the said exhibit D to show that time for registration thereof was extended by the Registrar of Deeds and that leave to raise and argue the issue for the first time on appeal was granted by this Court on the 8th April, 2016.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Issues two, three and five argued by the Appellants cumulatively considered are to the effect that the learned trial Judge failed to consider the evidence adduced by the Appellants and where this was done, a misapprehension was displayed. The 1st Respondent failed to contest the said issues thereby justifying the submission of the Appellants that the said issues were conceded. This submission has legal validity. The law is that the failure of a party who has been served with the arguments of his opponent, to counter or proffer arguments in opposition to the said arguments, implies that he has conceded those arguments. See DR. ARTHUR NWANKWO & ORS VS. ALHAJI UMARU YAR’ADUA & ORS (2010) 12 NWLR (PT 1209) 518. That a party concedes the argument of his opponent would however not automatically confer legal validity on the conceded argument where such was ab initio devoid of legal validity. Parties cannot by agreement confer legality where there was none. Therefore, notwithstanding the failure to contest an argument, the Court is obligated to examine the merits thereof. See TANKO VS UBA PLC (2010) 7 NWLR (PT 1221) 80, ADEYEMI & ORS VS HARUNA & ORS (2018) LPELR-44538(CA) and DHL INTERNATIONAL (NIG) LTD VS ADEMOLA (2018) LPELR-46041(CA).
While deflecting from a direct response to the contentions of the Appellants, the 1st Respondent contended that the Appellants failed to adduce evidence in support of their counter-claim. This argument flies in the face of the cold facts deductible from the record of appeal.
A calm perusal of the composite judgment of the trial Court indicates abundantly that the learned trial Judge on dismissing Suit No. E/565/2003 declined to consider the evidence earlier adduced by the Appellants in the consolidated trial.
The basis for the said dismissal was that the said suit constituted an abuse of process in view of the existence of a counter-claim by the Plaintiffs therein in the other Suit No. E/345/2002. In the third paragraph of page 297 of the record of appeal, the learned trial Judge stated thus:
“The allegation of fraud is based on E/565/2003 and not E/345/2002. I have said that I will not like to be dragged into suit No. E/565/2003 again this is because that suit has been dismissed see paragraph 18 and 19 statement of claim on E/565/2003 dated 10/11/200.
The address of the plaintiff counsel and all the various authorities cited on this point of fraud and forgery will not be discussed because they are based on replies on E/565/2003 which has been dismissed.”
It somehow escaped the learned trial Judge that the excluded evidence constituted the basis of the counter-claim and that excluding it would completely shut out the evidence already adduced by the Appellants.
In stating that Suit No. E/565/2003 was unnecessary in view of the existence of the counter-claim, the evidence adduced in the consolidated trial by the Appellants became the support base for the counter-claim and ought not to have been considered ‘toxic’ and excluded by the learned trial Judge. The unfairness in this regard becomes more apparent considering that the evidence of the sole witness for the 1st Respondent, whose testimony was equally in respect of the two consolidated suits, was fully considered and accorded evidential value.
As if this was not bad enough, in the bid to navigate the consequences of the decision to exclude evidence adduced in Suit No. E/565/2003, the learned trial Judge got caught up in a labyrinth in the course of evaluation with the eventual culmination of avoidable contradictions in the apportionment of evidential value.
While evaluation of evidence and ascription of probative value thereto is the exclusive preserve of the trial Court which had the benefit of seeing, hearing and observing the demeanors of the witnesses, an appellate Court will justifiably interfere where the decision is shown to be perverse. See IRIRI & ORS VS. ERHURHOBARA & ANOR (1991) LPELR-1536(SC).
The totality of these gaffes and misses is that the judgment of the learned trial Judge was perverse and liable to be set aside in the circumstances. The wide concept of perversity includes a judgment predicated on an evaluation where legal evidence was wrongfully excluded and the pollution of irrelevant considerations allowed seep through. See ATOLAGBE VS SHORUN (1985) LPELR-592 (SC), AKINYEMI VS AKINYEMI & ANOR (1963) LPELR-15457(SC), CIVIL DESIGN CONSTRUCTION (NIG) LTD VS. SCOA (NIG) LIMITED (2007) LPELR-870 (SC) and ADEKEYE & ORS VS. ADESINA & ORS (2010) LPELR-103 (SC).
I therefore resolve issues two, three and five in favour of the Appellants.
The error of the trial Court in this instance has resulted in substantial prejudice to the Appellants as to occasion a miscarriage of justice. The excluded evidence however is not just documentary but of such a nature that requires evaluation of the demeanor of the witnesses to enable a determination of their truthfulness. An order of rehearing is therefore appropriate in the circumstances. See SANUSI VS. AMEYOGUN (1992) LPELR-3008(SC).
Having come to the above conclusion, I shall decline from considering issues four and six as to do so would result in avoidable prejudice.
The appeal is meritorious and it is accordingly allowed.
The composite judgment of the trial Court in Suit No. E/345/2002 and Suit No. E/565/2003 delivered on the 25th February, 2014 is hereby set aside.
The said suits are remitted to the Chief Judge of Enugu State for trial de novo before another Judge of Enugu State High Court other than OZOEMENA, J.
Parties shall bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. All the pertinent issues to the instant Appeal matter have been exhaustively and meticulously dealt with and duly resolved in the said lead judgment. Indeed, I have nothing to add thereto. Thus, I agree with the reasoning and conclusion of my learned brother, OYEWOLE, JCA. I also adopt them as mine. I abide by the consequential orders made therein, inclusive of the one made with regard to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has merit and is hereby allowed. I abide by the consequential orders made therein.
Appearances:
Chief O. Ugolo, SAN, with him Mr. I. I. Iloani and Mr. U. S. Awoke For Appellant(s)
Mr. G. A. Ekoh, with him H. Enyi Esq. for 1st Respondent For Respondent(s)
