PRINCE DONATUS OKONKWO v. MOHAMMED ALIYU ZURMI & ANOR
(2018)LCN/12337(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of December, 2018
CA/A/8/2016
RATIO
CONTRACT: WHETHER THE COURT CAN INTERFERE WITH CONTRACTUAL AGREEMENT
“All that the Court does is to give effect to the terms of the contract as determined by parties. Hence, the Court is most times very reluctant to meddle into a contract properly concluded by the parties. However, in very exceptional circumstances, whenever it is desirable to effectuate the intention of the parties as may be gathered from their express terms, the Court may imply a term into the contract. Accordingly, the Courts may imply terms into a contract in two principal ways or circumstances; (i) Where such term is necessary and reasonable in order to reinforce the language of the parties and realize their manifest intentions; and (ii) Where such a term is necessary and reasonable in order to give business efficacy to the contract. The implication of the foregoing is that the Courts imply terms just in order to give effect or do what the parties would have done themselves had they thought of the matter. Something they probably had in mind but wittingly or inadvertently did not express. It is something that without it the contract will not work or will not be efficacious. Mackinnon, L.J. in Shirlaw v. Southern Foundaries Ltd (1939) 2 KB 206 at p. 227, CA. PER MOHAMMED BABA IDRIS, J.C.A.
CRIMINAL LAW: ON THE ACCUSATION OF FRAUD
Flowing from the above, the accusation of fraud has not been proven to the requirement of the provisions of the Evidence Act 2011. The Lower Court erred in law by upholding the 1st Respondent’s allegation of fraud as no evidence was led on the element of fraud, neither was there any proof of actus reus and mensrea, which are the two ingredients of a crime. See also UDEMBA Vs. MORECAB NIG LTD (2003) NWLR (Pt. 800) 1; ONAMADE Vs. ACB LTD (1997) 1 NWLR (Pt. 480) 123; IMONIKHE Vs. UNITY BANK PLC (2011) 5 SCNJ 73; ASHABI EYA & ORS Vs. OLAPADE & ANOR (2011) 5 SCNJ 98; FABUNMI Vs. AGBE (1985) 1 NWLR (PT. 2) 299; YAKUBU Vs. JAUROYEL & ORS (2014) LPELR 22732; FCMB PLC Vs. CP-TECH CONST. COMPANY LTD (2015) LPELR 25006; TEWOGBADE Vs. OBADINA (1994) 4 NWLR (Pt. 338) 326.” PER MOHAMMED BABA IDRIS, J.C.A.
EVIDENCE: PLEADINGS CANNOT ASSUME THE ROLE OF EVIDNCE
“It is trite law that pleadings are not and cannot assume the role of Evidence. In the case of KUTI V. ALASHE (2005) 17 NWLR (pt. 955) 625, Salami JCA (as he then was) held that: ‘The failure of the Appellants to produce a shred of Evidence in support of his averments to the effect that members of their Alausa family became Baale Agunfoye after the demise of Dunde is fatal to their case. They are deemed to have abandoned their pleadings. Pleadings are no substitute for Evidence and averments in a pleading not supported by Evidence are deemed as abandoned.'” PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
PRINCE DONATUS OKONKWO Appellant(s)
AND
1. MOHAMMED ALIYU ZURMI
2. ECONOMIC AND FINANCIAL CRIMES COMISSION Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the final judgment of the High Court of the Federal Capital Territory, Abuja Judicial Division per Husseini Baba Yusuf J., delivered on the 5th day of November 2015. The judgment is at pages 274-312 of the Records of Appeal (herein referred to as “the Record”)
Dissatisfied with the judgment, the Appellant herein appealed to this Court by a Notice of Appeal dated and filed 23rd December, 2015. (The Notice of Appeal against the said judgment is at pages 345 to 350 of the record)
The Appellant herein as Plaintiff by a Writ of Summons and Statement of Claim issued on the 26th day of October 2009. (See pages 1-10 of the record) claimed jointly and severally against the Defendants as follows:
(a) A Declaration that the Plaintiff is both the legal and equitable owner of the building known as No. 5 Rudolf Street (also known as plot 2389 Nkisi Street) Maitama, Abuja within the jurisdiction of this Honourable Court by virtue of a Deed of Assignment dated 25th March 2008 and registered as No. 159 at Page 159 Volume 21 (Misc) of the Lands Registry, Abuja executed between the Plaintiff and the 1st Defendant for valuable consideration of the sum of N65 Million (N65, 000, 000.00) duly received by the 1st Defendant, and a Certificate of Occupancy No. 18a8w-14c49-71adr-fa50u-10 dated 7th April 2007 of the Lands Registry, Abuja, assigned by the 1st Defendant to the Plaintiff.
(b) An Order granting immediate vacant possession of the said property to the Plaintiff from the Plaintiff from the 1st Defendant, his privies, and/or any person whosoever, claiming through him, or in possession through him.
(c) An Order commanding the 1st Defendant to render an account to the Plaintiff of all rents collected from tenants in the said property from 25th March 2008 till date of judgment, and until delivery of possession to the Plaintiff.
(d) A Declaration that the arrest and detention of the Plaintiff by the 2nd Defendant at the instance of the 1st Defendant from 28th May 2009 to 1st June 2009 at Abuja is unlawful, illegal and unconstitutional as the property transaction between the plaintiff and the 1st Defendant is not an economic or financial crime warranting the intervention of the 2nd Defendant by arrest and detention.
(e) An Order or perpetual injunction restraining the Defendants by themselves, their Servants, Agents, or Privies from interference or further interference with the Plaintiff’s use, possession, development and occupation of the property.
(f) The Sum of N250 Million being damages for unlawful arrest and detention of the Plaintiff by the Defendants from 28th May 2009 at Abuja as a ruse to extract the original documents of the property from the Plaintiff and forcefully takeover the property from the Plaintiff.
(g) An Order commanding the Defendants to release to the Plaintiff the original title Documents of the property forcibly taken from the Plaintiff under the guise of investigation and as a pre-condition for his release on bail.
The witness statement on Oath of Prince Donatus Okonkwo (the Appellant herein)and the Documents to be relied upon at trial were frontloaded with the originating process, and can be found at pages 11-36 of the Record of Appeal.
The facts alleged by the Plaintiff can be summarised as follows:-
(a) The sum total of the Plaintiff’s claim at the lower Court is that the Plaintiff and the 1st Defendant both executed a Memorandum of Understanding on 14/9/2007 wherein the Plaintiff agreed to extend a loan of N65 Million to the 1st Defendant. It was further the agreement of the parties that the loan will be repaid in six months (i.e. 13/3/2008). Part of the provisions of the agreement was that in the event of default by the 1st Defendant to repay the loan at the stipulated period, the property used as collateral for the loan will be forfeited and assigned to the Plaintiff. Consequently, a deed of assignment was executed by the parties in favour of the Plaintiff. The deed was to be registered in the event of default.
(b) Consequently upon the failure of the 1st Defendant to repay the loan after the expiration of six months, the Plaintiff averred that he took steps to register the deed executed in his favour. Prior to the disbursement of the loan, the 1st Defendant had handed over to the Plaintiff all the original title deeds, including the statutory Certificate of Occupancy of the property. Upon due execution of the necessary Documents, the Plaintiff duly registered the assignment of the property with due consent of the Minister of the Federal Capital Territory in accordance with the Land Use Act.
(c) After the completion of the sale transaction, and before the Plaintiff took possession of the property, the 1st Defendant began to demonstrate acts which tend to suggest that he wanted to renege on the agreement of the parties; evading every appointment with the Plaintiff for the purpose of meeting with the tenant in the property so as to hand over vacant possession to the Plaintiff; writing letter to the tenant in the property and claiming he had not sold the property.
(d) To further climax his orchestrated design not to relinquish title in the property, the 1st Defendant engaged the services of the 2nd Defendant (“the Economic and Financial Crimes Commission”) who invited the Plaintiff by its letter of May 21, 2009 and consequent upon the Plaintiff honouring the said invitation, all the original documents of title with respect to the property were forcefully taken from the Plaintiff. The Plaintiff was subsequently detained. Hence, the Plaintiff’s action at the Lower Court.
In response, the 1st Defendant filed his Statement of Defence and other frontloaded processes dated 17th May 2010 and which statement of defence was subsequently regularized pursuant to an Order of Court granted on the 20th day of September 2010 (See pages 315-316 of the record). The 1st Defendant’s statement of defence is at pages 116-131 of the Record of Appeal.
The facts alleged by the 1st Defendant can be summarised as follows:-
(a) In his Statement of Defence, the 1st Defendant denied the averments of the Plaintiff that he received the sum of N65 Million as consideration for the sale of the property, subject matter of the instant suit. He maintained that he remains the owner of the property; having not at any time offered the property for sale to the Plaintiff or any other person. The 1st Defendant averred that all the documents tendered before the Court by the Plaintiff, save for the Memorandum of Understanding, were false and fabricated.
(b) The 1st Defendant admitted signing the Memorandum of Understanding with the Plaintiff to the effect that his Statutory Certificate of Occupancy of the property will be deposited as collateral for the loan and pledged to refund N65 Million after six months of collection of the N30 Million loan from the Plaintiff.
(c) The 1st Defendant further averred that he laid a criminal complaint against Plaintiff and some others at the Chief Magistrate Court when it was evident that the Plaintiff was taking steps to illegally dispose off his property to the Plaintiff. He averred that the original copy of the Certificate of Occupancy was handed over to the Plaintiff only as collateral for the loan advanced.
(d) It was upon the complaint lodged that the Plaintiff was invited by the 2nd Defendant for questioning. The 1st Defendant stated that the purported transaction was fraud perpetrated by the Plaintiff and four other persons, and specifically designed to illegally take over his property. He urged the Court to dismiss the action.
The 1st Defendant filed a Counterclaim against the Plaintiff, and predicated the reliefs contained therein on the averments in his Statement of Defence.
Upon close of pleadings, the matter proceeded to trial and Evidence was led by and/or on behalf of all the parties.
Hearing commenced with the Plaintiff calling his two witnesses; the Plaintiff as PW1 and one Dominic Uchenna Anyanwu as PW2. The witnesses gave Evidence and tendered documents received in Evidence and marked Exhibits D1-D5. The witnesses were further cross-examined and the Plaintiff thereafter closed his case (See pages 319-328 of the record of appeal).
The 1st Defendant opened his defence on 14/6/13. The 1st Defendant also called two witnesses, through whom Exhibits D6-D10 were admitted in Evidence (See pages 328-335 of the record of appeal) whilst the 2nd Defendant’s defence was presented through the testimony of an operative with the EFCC, one Bassey Prince Effiong, who tendered Documents which were admitted in Evidence and marked Exhibits 11-21 respectively.
Parties filed and exchanged their written addresses which were adopted on the 14th April, 2014. The addresses are reproduced at pages 158 – 181, 190 – 217, 218 – 254, 255 – 262, and 263 – 273 of the Record. The proceedings whereat the addresses were adopted can be found at pages 342 – 343 of the Record.
On 5th November 2015, the learned trial Judge delivered Judgment in the suit wherein it dismissed the Appellant’s reliefs 1, 2, 3, 4, 6 and 7 and granted relief 5 of the 1st Respondent’s Counter-claim. The trial Court also granted relief 5 of the Appellant’s Statement of Claim. See pages 274 – 312 of the Record. Aggrieved by the Judgment of the trial Court, particularly the aspects which affected him, the Appellant lodged an Appeal in this Court on 23rd November 2015. See pages 345 – 350 of the Record.
On 18th April 2016, the Appellant filed his brief of Argument in respects of this appeal. The 1st Respondent filed his brief of Argument on the 10th day of November 2017, but deemed filed on 13th November 2017. The Appellant filed his Reply brief on the 27th day of November 2017.
There are four grounds of appeal challenging the judgment of the lower Court. The Notice and grounds of Appeal can be found on pages 345 to 350 of the record. Grounds 1 complains that the learned trial judge erred when he failed to declare the Appellant the legal and equitable owner of the property in dispute despite finding that the sum was disbursed by the Appellant to the 1st Respondent as loan while ground 2 complains that the learned trial Judge erred in failing to resolve the manifest inconsistencies in the 1st Respondent’s case in favour of the Appellant on the exact amount disbursed by the Appellant to the 1st Respondent.
Ground 3 of the Notice of Appeal complains that the learned trial judge erred in law when it considered and granted relief 5 of the 1st Respondent’s counterclaim despite having found that the 1st Respondent’s failed to lead evidence in proof of his counterclaim. Ground 4 complains that the learned trial Judge erred when he failed to grant the Appellant’s claim for legal and equitable ownership of the property in dispute despite the admission of the 1st Respondent that he failed to pay back the admitted sum collected from the Appellant.
In the brief filed by the Appellant, these issues were submitted for determination:-
(a) Having regard to the pleadings, the Evidence led in support and Documents tendered from the record, whether the Lower Court was right to have held that the Appellant failed to establish his claim for ownership of the Property in dispute? ? (distilled from Grounds 1 & 4).
(b) Whether the Lower Court was right in failing to resolve the inconsistencies in the Evidence of the 1st Respondent in favour of the Appellant with respect to the exact sum disbursed by the Appellant? – (distilled from ground 2 of the Notice of Appeal).
(c) Whether the Lower Court was right to have granted relief 5 of the 1st Respondent’s counterclaim despite holding that the 1st Respondent failed to lead evidence in support of his counterclaim? – (distilled from Ground 3 of the Notice of Appeal).
It was argued in the brief that from the Documentary Evidence before the Court, it was established that the Appellant and the 1st Respondent entered into several agreements which included the Memorandum of Understanding and the executed Deed of Agreement and that the Lower Court had a duty to properly evaluate the Evidence led by both sides before coming to its decision especially with regard to the evaluation of the Documentary Evidence before it. That the Lower Court was wrong in failing to hold that it was the Deed of Assignment executed by both parties, and being relied on by the Appellant, that transferred title to the Appellant.
It was further argued that the allegation of fraud was not pleaded and proved beyond reasonable doubt, and that the Court ought to have inferred a mortgage relationship between the Appellant and the 1st Respondent being the common intention of the parties as expected in the documentary evidence before the Court.
It was contended that the Lower Court failed to resolve the inconsistencies which were manifest in the Evidence of the 1st Respondent in favour of the Appellant on the exact amount disbursed by the Appellant to the 1st Respondent. It was also contended that the trial Court ought not to have granted Relief 5 in the Counterclaim having stated that the 1st Respondent failed to call Evidence in support of his case.
The Court was urged to allow the appeal and set aside the judgment of the trial Court. These authorities were relied on:-
1. SUNNET SYSTEMS LTD. V. NERC (2014) LPELR-23967
2. IDUFUEKO V. PFIZER PRODUCTS LTD (2014) 12 NWLR (Pt. 1420) 96 at 100.
3. SHELL PETROLEUM DEVELOPMENT CO. (NIG.) LTD. V. OTOKO & ORS. (1990) 6 NWLR (Pt. 159) 693
4. MOGAJI V. CADBURY LTD. (1985) 2 NWLR (Pt. 7) p. 373
5. ALLI V. ALESINLOYE (2000) 6 NWLR (Pt. 40) p.117
6. OLOHUNDE V. ADEYOJU (2000) 10 NWLR (Pt. 676) p, 562
7. ECOTRADE LTD V. MACFOY & ORS (2015) LPELR-25205
8. ERINOSHO V. OWOKONIRAN (1965) NMLR 479, FOLARIN V. DUROJAIYE (1988) NWLR (Pt. 70) 351
9. UDEMBA V. MORECAB FIN (NIG) LTD. (2003) NWLR (Pt. 800) pg. 1 12 para. F.
10. ONAMADE V. A.C.B LTD (1997) 1 NWLR (Pt. 480) 123 p.@ 142 para. G
11. HIGHGRADE MARITIME SERVICES LTD. V. FIRST BANK OFNIGERIA LTD. (1991) 1 S.C.N.J. 110
12. OKOLI V. MORECAB FINANCE NIGERIA LTD.(2007) 5 S.C.N.J. 25.
13. B.A. IMONIKHE V. UNITY BANK PLC. (2011) 5 S.C.N.J 73 at 92.
14. OMODELE ASHABI EYA & ORS. V. AKAJA RISIKATU OLAPEDE & ANOR. (2011) 5 S.C.N.J 98 at 118- 119.
15. FABUNMI V. AGBE (1985) 1 NWLR (Pt. 2) 299 at 319
16. YAKUBU V. JAUROYEL & ORS (2014) LPELR-22732
17. FCMB PLC V. CP-TECH CONSTRUCTION COMPANY LIMITED (2015) LPELR-25006 (CA)
18. TEWOGBADE V. OBADINA (1994) 4 NWLR (Pt. 338) 326.
19. LAZARUS ESTATE V. BEASLEY (1956) 1 ALL ER 341
20. ADEOYE V. JINADU (1975) 5 SC 102.
21. OKOLI V. MORECAB FINANCE (NIG). LTD. (2007) ALL FWLR (Pt. 369) 1164 at 1183
22. ERINOSHO V. OWOKONIRAN (1965) NMLR 479
23. FOLARIN V. DUROJAIYE (1988) NWLR (Pt. 70) 351
24. ANAMBRA STATE HOUSING DEVELOPMENT CORPORATION V. EMEKWUE (1996) 1 NWLR (Pt. 426) 505 at 526 to 527
25. AGBI V. OGBEH (2005) 6 NWLR (Pt. 926) 40 at 138
26. BOY MUKA V. THE STATE (1976) 10 ? 11 SC 305
27. EZEMBA V. IBENEME (2004) 14 NWLR (Pt. 894) 617 at 654 & 664
28. ABATAN V. AWUDU (2004) 17 NWLR (Pt. 902) 420 at 445
29. AREHIA V. THE STATE (1982) 4 S.C (Reprint) 47
30. QUEEN V. UKPONG, (1961) ALL NLR 25
31. DANTATA V. DANTATA (2002) 4 NWLR (Pt. 756) 144 at 162
32. MINI LODGE LTD V. NGEI (2007) WRN (VOL. 4) 54 at 74 – 75 Lines 25 – 5
33. OMOREDE V. ELEAZU (1996) 6 NWLR (Pt. 452) 1
34. BASIL V. FAJEBE (2001) 4 S.C (Pt. II) 119 at 127 lines 2-4
35. DURU V. NWOSU (1989) 4 NWLR (Pt. 113) P. 24 at p.55
36. BURAIMOH V. BAMGBOSE (1989) 3 NWLR (Pt. 109) p. 352
37. OLUJINLE V. BELLO ADEAGBO (1988) 2 NWLR (Pt. 75) p. 238
38. NWABUOKU V. OTTIH (1961) ANLR P. 507
39. YUSUF V. OYETUNDE (1998) 12 NWLR (Pt. 579)
40. W.A.E.C V. OSHIONEBO (2007) ALL FWLR (Pt. 370) 1501at 1509 Paras. C – E
41. IYASE V. U.M.T.H.M.B. (2000) 2 NWLR (Pt. 643), pg. 47
42. UBN PLC V. SPARKING (2000) 15 NWLR (Pt. 639) 200 at 214
43. NWOGO V. NJOKU (1990) 3 NWLR (Pt. 140) 570
44. BALA V. BANKOLE (1986) 3 NWLR (Pt. 27) 141
45. I.B.W.A V. IMANO LTD. (2001) 3 SCNJ 160
46. ARABAMBI V. ADVANCE BEVERAGE IND. LTD. (2005) 19 NWLR (Pt. 959) 1.
In the brief filed by the 1st Respondent, three issues were formulated for the determination of the Court:-
1. Whether having regards to the pleadings and evidence adduced, the trial Court was right in holding that the Appellant failed to establish his claim for the ownership of the property in dispute. (Grounds 1 and 4 of the Notice of Appeal).
2. Whether there were inconsistencies in the evidence of the 1st Respondent with respect to the exact sum disbursed by the Appellant so material to warrant the resolution of such inconsistencies in favour of the Appellant. (Ground 2 of the Notice of Appeal).
3. Whether the Lower Court was not right in granting relief 5 of the 1st Respondent’s Counter-Claim. (Ground 3 of the Notice of Appeal).
It was argued that the trial Court was right to have held that the Appellant failed to prove title to the property in dispute in that the Appellant was disabled at the Court of trial in proof of his entitlement to the property in question, and that Exhibit D4 particularly which is the purported Deed of Assignment came into existence under questionable circumstances as the foundational document (Exhibit D5) was made after it that other documents also suffer strange existence as the Appellant could not prove that they were made by the 1st Respondent. It was also argued that the claim of the Appellant cannot be supported in both law and equity, and that declaratory reliefs cannot be granted on the weakness and or even on the admission of the Defence. That the obvious contradictions and inconsistencies in the camp of the Appellant which manifest as the Appellant being at war with himself cannot be expected to be applied to the benefit and in favour of the Appellant.
It was contended that there were no material contradictions or inconsistencies in the Evidence of the 1st Respondent with respect to the exact sum disbursed by the Appellant to warrant the resolution of such inconsistencies in favour of the Appellant that at best what the Appellant considers such contradictions or inconsistencies were mere discrepancies which did not in any way affect the mind of the trial Court and which were not fatal.
It was further contended that the lower Court was right in granting relief 5 of the 1st Respondent’s Counter-claim because ample evidence was provided to support its grant.
The Court was urged to dismiss the Appeal. These authorities were relied on:-
1. D.O. IDUNDUN & ORS. V. DANIEL OKUMAGBA & ORS. (1976) 9-10 S.C. 227
2. THOMAS NRUAMAH & ORS. V. REUBEN EBUZOEME & ORS. (2013) NWLR (PT. 1372) 47
3. AWODI V. AJAGBE (2015) 13 NWLR (PT 1447) 582
4. AYOOLA V. ODOFIN (1984) 11 SC 120
5. EWO V. ANI (2004) 17 NSCQR 36
6. ALAHASSAN V. ISHAKU (2016) 10 NWLR (PT. 1520) 239
7. EMENIKE V. PDP (2012) 12 NWLR (PT. 1315)
8. OLANREWAJU COMM. SERVICES LTD V. SOGAOLU (2015) 12 NWLR (PT. 1473) 315
9. NDUKWE NJOKU V. OBOLOBO JONATHAN (2011) LPELR 4624
10. NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) 451
11. DUMEZ V. NWAKHOBA (2008) 18 NWLR (PT. 1119) 361.
12. MOTUNWASE V. SORUNGBE (1988) 5 NWLR (PT. 92) 90
13. BELLO V. EWEKA (1981) 1 SC 101
14. ADENDE V. OYEGBADE (1967) NMLR 136
15. KODINLINYE V. ODU (1935) 2 WACA 336
16. APC V. INEC (2015) 8 NWLR (PT. 1462) 545
17. SARAKI V. FRN (2016) 3 NWLR (PT. 1500) 553
18. FALEYE V. DADA (2016) 15 NWLR (PT. 1534) 80
19. OKAFOR V. INEC (2010) 3 NWLR (PT. 1180) 1
20. AKANNI V. ODEJIDE (2004) 9 NWLR (PT. 879) 575
21. OKONKWO V. OKONKWO (2004) 5 (PT. 865) 87
22. AYO GABRIEL V. THE STATE (1989) 5 NWLR (PT. 122) 457
23. ALAKIJA V. ABDULAI (1998) 6 NWLR (PT. 552) 1
24. P.N. UDOH TRADING CO. LTD V. ABERE (2001) 11 NWLR (PT. 723) 114
25. ATUCHUKWU V. ADINDU (2012) 6 NWLR (PT. 1297) 534
26. FORTUNE INTL. BANK PLC V. PEGASUS TRADE OFFICE (2004) 4 NWLR (PT. 863) 343
27. CONFIDENCE INSURANCE LTD V. TRUSTEES OF OSCE (1999) 2 NWLR (PT. 591) 373
28. KEZIE V. IWUOHA (1998) 8 NWLR (PT. 563) 554
29. ADESANOYE V. ADEWOLE (2000) 9 NWLR (PT. 671) 127
30. OGBUOKWELU V. UMEANAFUNKWA (1994) 4 NWLR (PT. 341) 676
31. UGOJI V. ONUKOGU (2005) 16 NWLR (PT. 950) 97
I have read the briefs filed by the parties. I will adopt the issues formulated by the Appellant as having arisen for determination in this appeal, and I shall deal with each issue hereunder without the need to repeat them.
ISSUE ONE
The issue is whether having regard to the pleadings, the Evidence led in support and Documents tendered from the record, the Lower Court was right to have held that the Appellant failed to establish his claim for ownership of the property in dispute?
It is clear from the record that the Appellant herein entered into an agreement with the 1st Respondent to lend him the sum of N65, 000,000.00 and the 1st Respondent was to repay same within 6 Months. Both parties entered into a Memorandum of Understanding and the 1st Respondent pledged his property located at 5 Rudolf Street, Maitama, Abuja as collateral and agreed that the Appellant take possession of the said property if the 1st Respondent defaults in the loan after 6 Months. Consequent upon the failure of the 1st Respondent to repay the loan sum after six months, the Appellant sought to register the Deed of Assignment executed in his favour. After the sale, the 1st Respondent reneged on the Agreement and invited the 2nd Respondent to arrest the Appellant and forcefully collect the original documents of title.
The Appellant herein rightly took possession of the property as the agreement was clear on the conditions for the loan. From the Documentary Evidence before the Court including the Memorandum of Understanding which the 1st Respondent signed, the Lower Court in determining the title of the Appellant should have given meaning to the words of the agreements and by so doing would have characterized the relationship or intended relationship between both parties by the words of the Memorandum of Understanding. The Lower Court had a duty to properly evaluate the several agreements which also include the Deed of Assignment before coming to its decision. See generally SUNNET SYSTEMS LTD Vs. NERC (2014) LPELR 23967; IDUFUEKO Vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT. 1420) 96; SHELL PETROLEUM DEV. CO. NIG. LTD Vs. OTOKO & ORS (1990) 6 NWLR (PT. 159) 693.
Parties to a contract have the freedom to determine the terms of their contract. It is not the function of the Court to make a contract for the parties.
All that the Court does is to give effect to the terms of the contract as determined by parties. Hence, the Court is most times very reluctant to meddle into a contract properly concluded by the parties. However, in very exceptional circumstances, whenever it is desirable to effectuate the intention of the parties as may be gathered from their express terms, the Court may imply a term into the contract. Accordingly, the Courts may imply terms into a contract in two principal ways or circumstances;
(i) Where such term is necessary and reasonable in order to reinforce the language of the parties and realize their manifest intentions; and
(ii) Where such a term is necessary and reasonable in order to give business efficacy to the contract.
The implication of the foregoing is that the Courts imply terms just in order to give effect or do what the parties would have done themselves had they thought of the matter. Something they probably had in mind but wittingly or inadvertently did not express. It is something that without it the contract will not work or will not be efficacious. Mackinnon, L.J. in Shirlaw v. Southern Foundaries Ltd (1939) 2 KB 206 at p. 227, CA, gave a classic formulation of how the Court could determine the intention of parties in this circumstances so as to imply such intention to the contract. By using the officious bystander concept, he stated thus:
“…that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that if while the parties were making their bargain, an officious by-stander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘oh, of course”.
In Moorcock case (1889) 14 PD 64, the Plaintiff’s ship was berthed at the Defendant’s wharf under a contract. At low tide, the ship settled on some rock which lay under the river bed and she (the ship) was badly damaged. There was nothing in the contract about the safety of the wharf. It was held that it must be assumed as a business proposition that the parties had contracted upon basis that it was reasonably safe for the vessel to be berthed at the wharf. Accordingly, the defendant was held liable because an implied warranty was implied into the contract. The illuminating statement by Bowen, L.J. in this case in point gave further clarity to the Judgment. He stated thus:
“I believe if one were to take all the cases, and they are many, of implied warranties and covenants in law, it will be found that in all of them the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that all events, it should have”.
The Court below instead of construing the Documentary Evidence submitted to it in the resolution of the issues raised went to base its conclusion on facts that are not supported by either Oral or Documentary Evidence. There was no Documentary Evidence that suggests that the parties agreed that the sum of N30 million was to be granted as loan, and that the sum of N65 million would be repaid in its stead. It is clear that this erroneous finding formed the premise upon which the Court decided that the appellant failed to fully disburse the loan.
Whilst the Lower Court was correct in its finding that the Memorandum of Understanding is not a sale agreement, however, the said Court was clearly wrong where it failed to hold that it was the Deed of Assignment executed by both parties and which was relied upon by the Appellant that transferred title to the Appellant. The Act of execution of the Deed of Assignment by the parties is a presumption that the sale is valid and regular. The covenants in the transfer instrument evidently and clearly convey the thoughts of the parties in the transaction. See IRP NIG vs. OVIAWE (1992) 5 NWLR (Pt. 243) 572; ODUBEKO vs. FOWLER (1993) 9 SCNJ 185; MARANRO vs. SARUMI ADEBISI (2007) LPELR – 4663. ECOTRADE LTD vs. MACFOY & ORS (2015) LPELR – 25205.
I agree with learned counsel for the appellant that the mere fact that the 1st respondent challenged and denied the regularity and/or genuiness of the Deed of Assignment, without more, did not in any way affect the potency of the document as capable of transferring title to the Appellant as agreed by both the assignor and the assignee. See generally ERINOSHO Vs. OWOKONIRAN (1965) NMLR 479; FOLARIN vs. DUROJAIYE (1988) NWLR (Pt. 70) 351; MOGAJI vs. CADBURY LTD (1985) 2 NWLR (Pt. 7) 373; ALLI Vs. ALESINLOYE (2000) 6 NWLR (Pt. 40) 117; OLOHUNDE Vs. ADEYOJU (2000) 10 NWLR (Pt. 676) 562.
The lower Court also failed to address the issue of fraud as laid down in various judicial decisions. The law is trite on the proof of the issue of fraud.
In the case of ABDULRAHMAN V. ODUNEYE (2009) 17 NWLR (pt. 1170) 220, the Court stated that one cannot infer fraud, as fraud must be positively proven and not inferred. The Court said at page 235 that S.138(1) of the Evidence Act provides that when the commission of a crime by a party is in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. S. 138 (2) of the Evidence Act also states that the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts.
Flowing from the above, the accusation of fraud has not been proven to the requirement of the provisions of the Evidence Act 2011. The Lower Court erred in law by upholding the 1st Respondent’s allegation of fraud as no evidence was led on the element of fraud, neither was there any proof of actus reus and mensrea, which are the two ingredients of a crime. See also UDEMBA Vs. MORECAB NIG LTD (2003) NWLR (Pt. 800) 1; ONAMADE Vs. ACB LTD (1997) 1 NWLR (Pt. 480) 123; IMONIKHE Vs. UNITY BANK PLC (2011) 5 SCNJ 73; ASHABI EYA & ORS Vs. OLAPADE & ANOR (2011) 5 SCNJ 98; FABUNMI Vs. AGBE (1985) 1 NWLR (PT. 2) 299; YAKUBU Vs. JAUROYEL & ORS (2014) LPELR ? 22732; FCMB PLC Vs. CP-TECH CONST. COMPANY LTD (2015) LPELR ? 25006; TEWOGBADE Vs. OBADINA (1994) 4 NWLR (Pt. 338) 326.
The Appellant in this case not only pleaded and tendered the Deed of Assignment executed by the parties as Evidence of title, but tendered an acknowledgement receipt signed by the 1st Respondent which in my view showed evidence of payment of money. The learned trial judge clearly displayed a misunderstanding of the essence of an acknowledgement receipt issued by the 1st Respondent when it held that “it is not a good authority to support the loan of N65 million disbursed sometimes in September, 2007”. (See page 290 of the record of appeal).
The acknowledgement receipt was Evidence of payment of money by the Appellant to the 1st Respondent.
It is clear from the undisputed and available facts that the nature of the transaction between the Appellant and the 1st Respondent is essentially a mortgage. There is no dispute that a loan was advanced by the Appellant to the 1st Respondent and it was a fundamental part of the agreement that the same amount be repaid at the expiration of the agreed period and that the title document of the property belonging to the 1st Respondent was delivered to the Appellant as security for loan. In the face of the 1st Respondents failure to pay back the loan to the Appellant, the 1st Respondent cannot lay claim to the ownership of the property, and the Appellant is entitled to be declared the legal and equitable owner of the property.
I agree with the Appellant that the Lower Court had a duty to properly characterize the nature of the transaction between the parties irrespective of the description given to same by the parties.
On the important need to re-characterize in deserving cases, I refer to the case of Anambra State Housing Development Corporation V. Emekwue (1996) 1 NWLR (Pt. 426) 505 to 527 where the Supreme Court per Belgore, JSC (as he then was) stated thus:
“I will have to state clearly that the statutory corporations, with authority to build houses and sell on terms to people who otherwise would be unable to build on their own, are in some way mortgages to the buyers. But instead of outright loan to the buyer they provide ready built houses to be paid for on certain terms. The terms range according to the laid down policy of each corporation. Some require a certain percentage of the price to be paid as first deposit and the remainder to be paid in certain instalments. They are in some cases flexible as to time but in most cases spell out when and how to liquidate the full price. All these terms are without prejudice to mortgagor’s right to pay the full price outright; or if he defaults for just a few days or even weeks in a reasonable way he still retains his equity of redemption, i.e. even if the contractual date had passed. HOWARD V. HARRIS (1683) 1 Vern 190; SPURGEON V. COLLIER (1578) 1 EDEN 55; JENNINGS V. WARD (1705) 5 Vern 520. What found its way into our statutes is no more than the historical common law practice of protecting the weak borrowing from the overbearing lender. Once the lender (mortgagee) was adequately protected to recover his money in full plus interest at reasonable time even if somewhat outside the contracted period, the mortgagor’s equity of redemption should not be vitiated. What is essentially a mortgage in this case is dressed up as a conveyance with the right to withhold possession from the mortgagor until he liquidated the debt; but should he fail to liquidate by unreasonably defaulting in payment and was in arrears for long the mortgagee’s right of foreclosure should also not be vitiated.
In fact, registration of deeds- Exhibits O and O1 ? without delivery of the property to the Respondent is to make sure the borrower (in this case indirectly the Respondent) is assured he would have the house delivered up to him. That is why the period of payment is six months and the registration of the Deed is done after the payment of 50% of the price within the same period but without delivery because the full price had not been paid.”
In sum, I hold the view that the learned trial judge was wrong to have held that the Appellant failed to establish his claim for ownership of the property in dispute. The first issue is resolved in the favour of the Appellant against the Respondents.
ISSUE TWO
The second issue is whether the learned trial judge was right in failing to resolve the inconsistencies in the Evidence of the 1st Respondent in favour of the Appellant with respect to the exact sum disbursed by the Appellant?
At page 288 of the record of appeal, the learned trial judge held as follows:-
“Although the method of disbursement of the loan to the 1st Defendant was not stated, the Plaintiff chose the medium of bank transfer for the disbursement of the first tranch of the loan as revealed in Exhibit D10 which is the 1st Defendant’s Statement of Account. Exhibit D10 shows that on the 18/9/2009 the Plaintiff transferred the sum of N29, 400,000.00 (Twenty-Nine Million, Four Hundred Thousand Naira) only to the account of the 1st Defendant, According to the Plaintiff the balance of the N65,000, 000.00 loan (being N30, 600,000.00) was released to the 1st Defendant in cash.
This claim has been denied by the1st Defendant who in his witness statement before the Court stated that he was only paid N29,000,000.00 and not N65,000, 000.00. However, in Exhibit (D8) which is his Evidence before the 2nd Defendant he stated that the loan granted was N30, 000, 000.00 to pay back N65 Million in six months. Elsewhere in Exhibit (D17) it was stated that the Plaintiff paid a total sum of N30, 000, 000.00 out of the N65, 000, 000.00 agreed to by parties. These pieces of Evidence put together amount to inconsistencies on the part of the 1st Defendant as to the exact amount disbursed by the Plaintiff to him. However, if the Plaintiff has to succeed in his claim for declaration, he cannot rely on the weakness of the case for the Defence. He needs to rely on the strength of his case.”
It is clear that the learned trial judge failed to resolve the inconsistencies in the Evidence of the 1st Respondent in favour of the Appellant in regard to the sum disbursed by the Appellant. The law is trite that where a party gives Evidence that are inconsistent and contradictory on material facts; the Court should not attach any probative value to such Evidence. The Court is not allowed to pick and choose which Evidence to believe or disbelieve.
The 1st Respondent made several inconsistent claims in his Evidence and this was highlighted by the trial judge in his judgment, however, he chose to give value to parts of the inconsistent Evidence. It is a settled principle of law that every averment in pleadings must be supported by credible Evidence during trial. The case of Osigwelem v INEC (2011) 9 NWLR (pt. 1252) 456 is instructive here. The Court held inter alia that:
“It is a bounding duty of the Appellant to prove his case, here on a balance of probabilities even where no pleadings were filed and no Evidence adduced by the Respondents. Pleadings of the Appellant do not constitute Evidence; therefore every averment in the pleadings must be proved by credible Evidence.”
The 1st Respondent adduced inconsistent Evidence and that should have been fatal to his case, as the Evidence cannot be said to be credible Evidence. The Court relying on such Evidence, to the extent of anchoring its decision on such inconsistent Evidence is wrong in law. In Basil v Fajebe (2001) 4 S.C (pt. II) 119 at 127 the Court held that a party who adduces inconsistent Evidence over one and the same issue damages his own case, unless he can reconcile the inconsistencies.
The learned trial judge should have treated the 1st Respondent’s inconsistent evidence as being unreliable and thus relied on the Appellant better Documentary Evidence before it in its quest to ascertain the exact amount of loan agreed and disbursed between the parties. Exhibit D4 being the Acknowledgement receipt, and Exhibit D5 being the Memorandum of Understanding should have aided the trial judge in coming to a reasonable conclusion on the exact sums disbursed.
In the circumstances, this issue is resolved in favour of the Appellant against the Respondents.
ISSUE THREE
The issue is whether the Court was right to have granted Relief 5 of the 1st Respondent Counter-claim despite holding that the 1st Respondent failed to lead Evidence in support of his Counter-claim.
At pages 305 – 308 of the record, the learned trial judge held as follows:-
“The relief sought in the Counter Claim are:
1. A Declaration that the purported Memorandum of Understanding entered into between the Plaintiff and the 1st Defendant was born out of a fraudulent plan and as such null and void for illegality.
2. A Declaration that the 1st Defendant is the owner of the property situate and known as No. 5, Rudolf Street, Maitama.
3. An Order of this Honourable Court restraining the Plaintiff from parading himself as the owner of the property situate at No. 5, Rudolf Street, Maitama.
4. A Declaration that the purported executed Deed of Assignment in favour of the Plaintiff dated 25th March 2008 is a false Document and untenable in law.
5. An Order of the Court to the effect that the purported executed Deed of Assignment in favour of the Plaintiff dated 25th March, 2008 is null and void.
6. A Declaration that the Plaintiff is not entitled to the repayment of the purported loan having only paid N29 Million out of the amount of N30 Million in breach of the Memorandum of Understanding.
7. A Declaration that since the Plaintiff only paid N29 Million out of N30 Million, the contract under the Memorandum of Understanding is inchoate and not binding.
8. An Order of this Honourable Court restraining the Plaintiff, his Agents, Privies and assigns from giving effect to the purported Memorandum of Understanding Deed of Assignment and Letter of Consent to Assign the said property to the Plaintiff.
These Claims are based on the averments in the 1st Defendant’s Statement of Defence.
In his Defence to the Counter Claim the Plaintiff made a general traverse of the averments of the 1st Defendant in support of the Counter Claim.
In his final written address the Counsel to Plaintiff argued that the Counter claimant had abandoned the Counter Claim because no Evidence was adduced in support. He therefore urged me to dismiss the Reliefs in the Counter Claim.
In his brief reply the 1st Defendant provided answer that the averments of the Plaintiff in Defence to the Counter Claim is in the form of a general traverse and that general traverse is no traverse. He further submitted that general traverse is an admission of the facts in the opponent pleadings.
That in such a situation no evidential burden is placed on the Plaintiff to prove his claims as facts admitted needs no proof. Counsel relied on the following cases in support of his arguments: –
ATUCHUKWU V. ADINDU (2012) 6 NWLR (PT. 1297) 534 at 558 – 559 para H & A. FORTUNE INTL. BANK PLC V. PEGASUS TRADE OFFICE (2004) 4 NWLR (PT. 863) 343 at 390 para F – G. CONFIDENCE INSURANCE LTD V. TRUSTEES OF OSCE (1999) 2 NWLR (PT. 591) 373 at 389 paras C – D; O. A. A. CO-OP SOC. V. NACB LTD (1999) 2 NWLR (PT. 590) 234 paras D – E; OWOSHO V. DADA (1984) 7 SC 149 & 164 Lines 5 – 10; As well as Section 123 of the Evidence Act of 2011.
Now, two things are clearly evident from the pleadings of the parties in respect of the Counter Claims filed by the 1st Defendant. The 1st is clearly that no Evidence was led by the 1st Defendant in support of the Counter Claims. Apart from the reliefs sought by the 1st Defendant nothing was said in the form of Evidence to support or prove the Counter Claims.
I agree with Counsel to the Plaintiff that once a party fails to lead evidence in support of his pleadings, such Claims are deemed as having been abandoned. See the following cases:
AWOJUGBAGBE LIGHT INDUSTRY V. CHINUKWE [1995] 5 NWLR (PT. 390) 379; OLAREWAJU V. BAMIGBOYE (1987) 3 NWLR (PT. 60) 353; OLUBODUN & ORS. V. LAWAL (2008) 6 SCNJ 269; ANYA V.IMO CONCORD HOTEL LTD. ORS.(2002) 12 SCNJ 14.
In KAYDEE VENTURES LTD. V. MINISTER., F.C.T. (2010) 7 NWLR (PT. 1192) 171, the Supreme Court stated the law thus:
“Now, the trite position of the law of pleading is that where an averment has not been supported by Evidence, that averment is deemed abandoned and must be struck out by the Court.”
The 2nd point is however that the Plaintiff did not specifically traverse the averments of the 1st Defendant in support of the Counter Claim. The general rule is that general traverse is not a denial of the averments in Plaintiff’s Claims. It is technically an admission of the Claims as supported by the authorities cited by Counsel to the 1st Defendant above. It is also true that facts admitted do not require proof. See ATUCHUKWU V. ADINDU (SUPRA) and similar cases cited earlier in support of this Proposition of Law.”
S. 131 (1) of the Evidence Act 2011 provides that whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The 1st Respondent filed a Counterclaim, did not lead any Evidence and the learned trial judge granted the Counter Claim in part without any Evidence being led.
It is trite law that pleadings are not and cannot assume the role of Evidence. In the case of KUTI V. ALASHE (2005) 17 NWLR (pt. 955) 625, Salami JCA (as he then was) held that:
“The failure of the Appellants to produce a shred of Evidence in support of his averments to the effect that members of their Alausa family became Baale Agunfoye after the demise of Dunde is fatal to their case. They are deemed to have abandoned their pleadings. Pleadings are no substitute for Evidence and averments in a pleading not supported by Evidence are deemed as abandoned.”
The Courts have also held that such pleadings are deemed as abandoned. The Court in W.A.E.C V. OSHIONEBO (2007) ALL FWLR (PT. 370) 1501 at 1509 held that if one party fails to submit the issues raised in his pleading for trial by giving or calling Evidence in their support, the trial judge must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party.
The trial judge pointed out that no Evidence was called by the 1st Respondent in respect of its Counter Claim and went ahead to grant reliefs sought in the Counterclaim. On what Evidence did he grant the reliefs?
The 1st Respondent did not call any Evidence to show he was entitled to any of the reliefs sought in his Counterclaim.
In my view, the learned trial judge was wrong to have granted Relief 5 of the 1st Respondent’s Counter Claim despite having held that the 1st Respondent failed to lead Evidence in proof of the Counter Claim. The third issue is therefore resolved in favour of the Appellant against the Respondents herein.
The Appeal succeeds. The judgment of the learned trial judge delivered by Honourable Justice Husseni Baba Yusuf on November 5, 2015 dismissing the Appellants Reliefs 1, 2, 3, 4 and 7 and granting Relief 5 of the 1st Respondents Counter Claim is hereby set aside.
The sum of N50, 000 is awarded as cost in favour of the Appellant against the Respondents.
STEPHEN JONAH ADAH, J.C.A.: I had the prime benefit of reading in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in agreement with his reasoning and conclusion that this appeal is meritorious. I also hold that the appeal has merit and it is hereby allowed by me. I abide by the consequential order inclusive of the order as to costs as made in the lead judgment.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
F. Kuti with him, P. OwhoarwoduaFor Appellant(s)
R.O. Mohammed with him, A. Orji, O.G. Etu and S.I.Okoh for the 1st Respondent.
S.Tahir with him, E.Eimonye for the 2nd Respondent.For Respondent(s)
