PRINCE AMOS ADEBOLU ADEWUYI & ANOR v. MRS OIL NIGERIA PLC
(2019)LCN/13536(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/AK/133/2018
RATIO
PARTIES SHOULD BE CONSISTENT IN THE PRESENTATION OF THEIR CASES
In Ajide v. Kelani (1985) NWLR, the apex Court had warned on the need for a party to be consistent in the presentation of its case. He cannot be allowed to blow hot and cold at the same time.
It is a mark of appropriation and reprobation. It cannot be allowed by the Courts, as litigation is not a game of chess aimed at outsmarting the opponent by a gamble. It is an exercise of honest search for the truth; and consistency is the watchword for the certainty and immutability of truth and the law to prevail.
The Court of equity and indeed even the Court of law as relating to the position of the law in this instance will not but strike out or discountenance the Appellants arguments on its issues one and two.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
FRAUD IN PRESENTATION OF LAND DOCUMENTS
How can it not be said to be a crime when fraud of the character as raised in land documents is raised? will not lead to criminal sanction of prosecution, imprisonment or even fine? Is infamy not obviously inferable? Will such allegations be determined by a mere departure from or denial of an earlier document forming the basis of a document mutually agreed upon as in a contract and to be substituted by only one party and testified and tendered and wished to be the basis of proof.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
A PARTY CANNOT UNILATERALLY VARY THE TERMS AND CHARACTER OF AN AGREEMENT ENTERED BY TWO PARTIES
A party is not at liberty to unilaterally vary the terms and character of an agreement duly entered into between parties. See Akaburiro v. Mobil Oil (Nig.) Plc. (2012) 14 NWLR (pt. 1319) 42 CA that will be at the pain of damages.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. PRINCE AMOS ADEBOLU ADEWUYI
2. ADEBOLA SIWONIKU (MRS.) – Appellant(s)
AND
MRS OIL NIGERIA PLC – Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice R. A. Shiyanbola of the Osun State High Court, sitting at Court 1 in Ile-Ife Judicial Division, delivered on the 10th day of January, 2018 in which the Defendants defence and counter claim totally failed and; the plaintiffs claim succeeded. The judgment is contained on pages 483 to 511 of the Record of Appeal.
Being dissatisfied with the said judgment, the Defendant filed their Notice of Appeal dated 6th march, 2018 and filed on 7th March, 2018 (see pages 512-515 of the Record of Appeal).
The plaintiff had by its writ of summons and statement of claim dated 11th April, 2016 claimed against the Defendants as follows;
i. A declaration that having accepted the sum of N7.5 million being the agreed purchase price for plots 1, 2, 7 and 8, Adebolu Industrial Estate, Ondo Road, Ile-Ife, Osun State, the 1st Defendant no longer has any proprietary interest over the land in dispute.
ii. A declaration that the 2nd defendant breached the professional duty she owes to the plaintiff
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in the course of the transaction between the plaintiff and the 1st defendant as she failed to take steps to perfect the title of the plaintiff.
iii. A declaration that the Notice to quit dated 26th November, 2014 and the notice to Tenant of Owners intention to apply to recover possession dated 11th June, 2015 issued on behalf of the 1st defendant are illegal, null and void.
iv. An order mandating the 1st defendant to execute the deed of assignment and all other documents required to perfect the legal title of the plaintiff to the plots 1, 2, 7 and 8, Adebolu Adewuyi Industrial Estate, Ondo Road, Ile-Ife, Osun State.
v. An order of perpetual injunction restraining the 1st defendant either by himself, his agent, privies and assigns from laying any claim to the ownership of plots 1, 2, 7 and 8, Adebolu Adewuyi Industrial Estate, Ondo Road, Ile-Ife, Osun State covered by plan No. 246/80 or from taking any step or threatening to take any step to interfere with the proprietary interest of the plaintiff over the land in dispute.
vi. Damages in the sum of N20, 000, 000. 00 against the 2nd defendant for the breach of the professional
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duty of care she owes the plaintiff.
vii. The cost of this action.
See page 7 of the records of appeal.
The Defendants entered a conditional appearance in protest, by virtue of memorandum of conditional appearance dated 31st day of March, 2016, and filed a statement of defence on the same day along with list of witnesses and list of documents. An amended counter-claim was equally filed pursuant to the directive of Court dated the 6th day of June, 2017.
In response to the Defendants Statement of Defence and Counter- Claim, the claimant filed a Reply to the Defendants Statement of Defence and Defence to counter claim dated the 1st of July, 2016. In response, the defendants filed a reply to the plaintiffs defence to counter claim dated 19th of September, 2016.
FACTS OF THE CASE
The 1st Defendant by an indenture of lease dated 2nd of April, 1980, leased some plots of land to the plaintiffs predecessor in title, Texaco Nigeria Limited for a term of 15 years. Upon the expiration of the said lease, a further term of 10 years was granted to the plaintiff by a deed of lease effective from 15th of April, 1990.
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Shortly after the new lease was granted, the 1st defendant and owner of the property in dispute offered to sell the said plots to the plaintiff and the plaintiff accepted the offer and agreed to buy the said plots for the sum of N7.5 Million Only. The property was surveyed in 1980 by a surveyor contracted by the plaintiff and the said survey plan reflected only 4 plots.
However, after the sale of said property, the 1st defendant invited a surveyor (Femi Falade) who then surveyed the said plots and discovered that the plots were actually 6 altogether and not 4 as the previous surveyor erroneously stated. The 1st defendant wrote several letters to the plaintiff about the new development and even encouraged the plaintiff/respondent to engage an independent surveyor, a request that was so blatantly ignored by the plaintiff for reasons best known to it albeit mala fide.
The plaintiff claims albeit erroneously that the contract was already concluded with the survey plan of 1980 and as such ipso facto binding on both parties. The plaintiff also insisted that the new survey plan of 2001 was immaterial to the said sale agreement with a view to covering a
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multitude of sins. The defendant on the other hand, having observed the conduct of the plaintiff, noted that since the previous survey plan was prepared by a surveyor brought by the plaintiff, it is evident that the plaintiff was aware of the true state of things as at the time the contract was entered into but still chose to conceal the existence of the excess plots of land. This singular recalcitrant behavior of the plaintiff necessitated the defendants/appellants to rescind the sale transaction on the ground that it had been vitiated by fraudulent concealment of material facts/fraudulent misrepresentation.
In view of this, the 1st defendant served on the plaintiff a notice to quit and a notice of owners intention to apply to Court to recover possession, which said notices were treated to reckless abandonment. However, in response to the above, the plaintiff later instituted this suit; to wit the defendant has filed a counter claim.
ISSUES FOR DETERMINATION
In the respectful view of the Appellants, the issues that arise for determination in this Court as distilled from the five grounds of appeal filed are as follows:
i. Whether the
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word, fraudulently used by the appellants requires prove beyond reasonable doubt. (Grounds one and Three)
ii. Assuming without conceding that the use of fraudulently amount to crime and thus needs to be proved beyond reasonable doubt, whether the appellants did not prove the allegation of fraud beyond reasonable doubt. (Grounds one and three).
iii. Whether the trial Court did not draw wrong inferences and conclusion from the totality of the evidence. (Grounds two, four and five).
The parties filed their respective Brief of Argument, thus:- Appellants Brief of Argument was filed on 4 – 7 – 2018 and its Reply Brief deemed filed on 9 – 4 – 2019 and in Reply to the Respondent’s Brief of Argument deemed filed on 6 – 11 – 2018.
Those briefs were adopted at the hearing of the Appeal on the 9th of April, 2019.
Appellant had formulated the following issues for determination thus;
1. Whether the word fraudulently used by the Appellants requires proof beyond reasonable doubt. (Grounds one and three).
2. Whether assuming without conceding that the
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use of fraudulently amount to crime and thus needs to be proved beyond reasonable doubt, whether the appellants did not prove the allegations of fraud beyond reasonable doubt. (Ground one and three).
3. Whether the trial Court did not draw wrong inferences and conclusions from the totality of the evidence (Grounds two, four and five).
On its part, the Respondent raised a lone or singular issue to wit, whether the Respondent proved that the sale of land in dispute to it was valid and binding on the 1st Appellant?
I have looked at the issues raised by the parties and think that the split issues 1 and 2 of the Appellant can be merged and treated together as one.
It is also clear that the 3rd issue of the Appellant may be conveniently, justly and conclusively be encompassed and resolved with the consideration of the Respondents sole issue; in this wise it is in the interest of justice to treat this appeal on the Appellants issues 1 and 2 and the Respondents sole issue as raised.
These Appellants issues shall be treated compositely (i.e together) as I had earlier on indicated.
Arguing the said issues,
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the Appellants counsel acknowledges that once there is an allegation of crime by any party to a civil suit, such allegation must be proved beyond reasonable doubt. Abubakar v. Yar Adua (2009) ALL FWLR (pt. 457) 1 SC.
Learned counsel reproduced the relevant Section 135(1) of the Evidence Act and said the commission of a crime must be directly in issue for the burden to prove beyond reasonable doubt to be the mandatory standard of proof to be satisfied. Relying on Ikoku v. Oli (1962) ALL NLR (pt.1) 195; Okoli v. Morecab Finance (Nig.) Ltd (2007) ALL FWLR (pt. 369) 1164 at 1179 – 1180 SC; Arowolo v. Ifabiyi (2002) FWLR (pt. 95) 296 SC it was submitted that allegation of fraud will pale into insignificance if the allegation borders on persons or documents that are extraneous to the parties in the suit and the issues raised in the suit. That the Appellant did not make fraud the foundation of his case as to require him to prove his case beyond reasonable doubt as stipulated in Section 135(1) of the Evidence Act 2011.
On the second limb of the fused issues, the learned counsel submitted in the alternative that even if the word
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fraudulently as used amounted to a crime and thus needed to be proved beyond reasonable doubt, that Appellant had given or pleaded the particulars of fraud as shown in paragraphs 34 of their counter claim at page 241 of the Record of Appeal and the evidence and Exhibits D9 and D16 being the survey plan made by the Appellant subsequent the Agreement and payment and the initial survey plan respectively. That the actual size of the land was as shown in the later Exhibit D9 and not earlier Exhibit D16.
That the best evidence is the contents of the documents themselves. That the Appellant was surprised at the conclusion of the trial Court in this matter.
That a witness had testified and tendered Exhibit D6 (counter plan) showing the difference between Exhibits D9 and D16.
The learned counsel proceeded to argue that it was an act of injustice of the highest order to have placed a heavy burden of proof on the Appellant. He relies on SPDCN V. Olanrewaju (2009) 6 WRN 73 – 74, lines 34 – 45. It was also argued that allegations that are not denied are deemed admitted and there are no issues on the point. That in this matter the
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denials were evasive and general and therefore admitted by the respondent.
In response, the Respondents learned counsel observed that issues are formulated to narrow the issues in the Grounds of Appeal and not to widen them and that submitting more than one issue from a ground of appeal is incompetent as it is not the duty of the Court to make a choice for the Appellant between the issues in determination of how to attach or allot them to the grounds of appeal.
Action Congress of Niger
