RIVERS STATE HOUSING AND PROPERTY DEV. AUTHORITY & ANOR v. DR. FELIX OWAKAH
(2010)LCN/4052(CA)
(2010) LPELR-4899(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of November, 2010
CA/PH/03/2007
RATIO
ADMITTED FACTS: WHETHER FACTS ADMITTED NEED FURTHER PROOF
It is settled principle of law that facts that are admitted need no further proof. They are taken as established by virtue of section 75 of the Evidence Act. Admitted facts are the strongest evidence available to the trial court, see Din v. African Newspaper of Nigeria (1990) 3 NWLR (Pt. 139) 393; Igwe v. A.C.B. Plc (1996) 6 NWLR (Pt. 605) 1; Total (Nig) Plc v. Morkah (2002) 9 NWLR (Pt. 773) 493; Ogbiri v. N.A.O.C. Ltd (2010)14 NWLR (Pt. 1213) 208. PER ISTIFANUS THOMAS, J.C.A.
UNCHALLENGED EVIDENCE: POSITION OF THE LAW WHERE FACTS AND EVIDENCE PLEADED ARE NOT CHALLENGED, OR CONTROVERTED BY THE PARTY AGAINST WHOM THEY ARE PLEADED OR AVERRED
Once facts and evidence pleaded is not challenged, or controverted by the party against whom they are pleaded or averred as done by the 2nd appellant in the instant appeal, they are deemed to have been admitted, seeOkelola v. Adeleke (1999) 1 NWLR (Pt, 585) 55; Total (Nig) , Plc v. Morkah (Supra) and Ogbiri (supra). PER ISTIFANUS THOMAS, J.C.A.
ADMISSIBILITY OF EVIDENCE: WHETHER IN DETERMINING THE ADMISSIBILITY OF EVIDENCE, IT IS THE PURPOSE FOR WHICH IT IS TO BE TENDERED, THAT IS IMPORTANT AND NOT HOW IT WAS OBTAINED
…it is now firmly settled that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence and particularly documents, depend again, on the purpose for which it is to be tendered; see the erudite decision of Ogbuagu, JSC (rtd) in the case of Ogbe v. Asade (2010) 40 NSCQR 386 at 424. PER ISTIFANUS THOMAS, J.C.A.
DOCUMENTARY EVIDENCE: EFFECT OF UNCHALLENGED DOCUMENTARY EVIDENCE
…in law, documents pleaded and established but not denied is deemed admitted. PER ISTIFANUS THOMAS, J.C.A.
GENERAL DAMAGES: WHETHER A TRIAL JUDGE CAN AWARD GENERAL DAMAGES EVEN IF IT IS NOT PLEADED OR PROVED
It is settled principle of law of damages that, a trial judge can award general damages even if it is not pleaded or proved, see the case of U.A.C. of Nig. Plc v. Prince O.O. Sobodu (2006) ALL FWLR (Pt. 329) 877 and Elf Petroleum Nig Ltd v. Unah (2006) ALL FWLR (Pt. 343) 1761. PER ISTIFANUS THOMAS, J.C.A.
JUSTICE
ISTIFANUS THOMAS justice of The Court of Appeal of Nigeria
EJEMBI EKO justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE justice of The Court of Appeal of Nigeria
Between
1. RIVERS STATE HOUSING AND PROPERTY DEV. AUTHORITY
2. MRS. GRACE ANUMAppellant(s)
AND
DR. FELIX OWAKAHRespondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Port Harcourt High Court delivered on 28th July, 2006 by Obie Daniel Kalio (J). The appellants were the defendant while the present respondent was the plaintiff at the lower court.
At the lower court, by the second amended statement of claim, the respondent claimed as follows:-
“(a) A declaration that the sale of the property in dispute to 2nd defendant was null and void
(b) An order of specific performance of clause 2 (v) of the sales agreement against the defendant to cause her to procure a certificate of occupancy of (C of O) over the property in dispute in favour of the plaintiff.
ALTERNATIVELY
The sum of N1 Million as special and general damages as follows:
(a) Deposit – N36, 800.00
Interest at 5% per annum from 20-12-1988 until judgment.
GENERAL DAMAGES
N963,200.00
Total = N1, 000.000.00”
After service of the writ of summons, the defendants now appellants filed their separate statement of defence, but the 2nd appellant filed a counter claim as follows at page 70 of the record:-
“(a) A declaration that the 2nd defendant is the lawful owner and as such entitled to the statutory right of occupancy in and over the parcel of land with building situate at No. 38 Elechi Street Mile 3 Diobu Port Harcourt.
(b) The sum of N200, 000.00 being and representing general damages for the trespass committed on the property before and during the tendency of this suit
(c) Perpetual injunctions restraining the plaintiff, his agent, privies, assigns or anybody purporting to claim through or in trust for him from tampering with or otherwise disturbing the peaceable ownership and possession of the property in dispute by the 2nd defendant/counter claimant.”
The land in dispute is located at No 38 Elechi Street, Mile 3 Diobu, Port Harcourt. At the lower court, the claimant or plaintiff, now respondent’s case, was that, he bought the property in dispute from the 1st appellant, thus the Rivers state Housing and Property Development Authority, and that he paid the amount which the 1st appellant had offered, and that he entered into a sales agreement which was even registered.
It is to be noted that, the 1st appellant is an agency of the Rivers State Government charged with the responsibility of inter alia, disposing of abandoned properties due to the Nigeria civil war crises between 1966-1974. The property in dispute is one of the abandoned properties vested in the 1st appellant to sell to the general public. The case of the 1st appellant at the former court is that, as a government agency with the responsibility to sell the abandoned property, it caused publications in the National Newspapers that the abandoned properties were free for sale, and that the 2nd appellant, bought the property in dispute pursuant to the publications in its Nigeria Tide Newspapers of 20th December, 1985 and 11th August, 1986 respectively. That at the material time, Dw3, Chief Owen Igiri was the chairman of 1st appellant who had the duty to sign on any sale of offer agreement between buyers and the authority.
On the part of the 2nd appellant at the lower court, her defence and counter-claim is that, at all material times, she originally lived in the property in dispute with her family as tenant paying rent to the 1st appellant, and that she latter became the landlady and owner in possession. That some times in 1984/1985, she heard radio announcements by the Rivers State Government asking landlords and property owner of tenant to renovate and repair their abandoned properties. That by the aforesaid Nigeria Tide Newspaper publication of 11th August, 1986, the abandoned property in dispute was offered for sale to the General public and she dully applied and was offered to her and she paid by deposit. That she took over the property in dispute and became the landlady and made tenants who paid her rents.
She carried out sundry repair works or renovations.
After pleadings were exchanged, the parties called “-witnesses and tendered exhibits in support of their respective evidence. At the end of addresses, the trial judge gave judgment in favour of the plaintiff now respondent and dismissed the counter claim of the 2nd defendant now 2nd appellant, hence the appeal.
Being aggrieved, the two appellants filed on 31/7/06 their joint appeal containing 3 grounds of appeal. By the leave of this court on 28th October, 2008, the original notice and grounds of appeal were amended by adding 6 additional grounds of appeal and deleting original grounds 1 and 2 the original ground 3 became the 7th ground. This appellate court also, granted leave to the 2nd appellant to argue a fresh issue not canvassed at the lower court, to wit- that the 2nd appellant was a bona fide purchaser for value without notice. The appellant’s joint brief of argument was filed on 12th November, 2009 because extension of time to file appellants brief was granted on 23rd October, 2008. The appellants brief contains 4 issues for determination. They are distilled from the, 7 grounds of appeal. They read thus:
“1. Whether by virtue of the Nigerian Tide Newspapers publication of 20-12-1985 and 11-8-1986, by which the property in dispute was offered to the public to purchase, pursuant to which the 2nd appellant bought, the 2nd appellant was not entitled, to judgment as a bona fide purchaser for value without notice. (Grounds 1, 2 and 4).
2. Whether the learned trial judge was right in ordering specific performance in this case when damages as claimed by the respondent as an alternative remedy, would have been an adequate relief. (Ground 3).
3. Whether the learned trial judge was not in (error and which error has occasioned a miscarriage of justice in all the circumstances of this case, when he rejected and marked as Exhibit AG and AH Rejected, Nigerian Tide Newspapers publications of 20- 12-1985 and 11-8-1986 (Ground 6)
Whether having regard to the pleadings to the totality of the evidence and the materials before him and the applicable law and equity of this case, the learned trial judge was right in dismissing the counter claim of the 2nd defendant/appellant and granting the claims of the Plaintiff/respondent. (Grounds 5 and 7).
On the part of the respondent, his brief of argument was dated and filed on 12th November, 2009. The respondent adopted the four issues in the appellant’s brief of argument.
I have carefully considered the appellants issues 1 and 3. They are distilled from grounds 1, 2, 4 and 6 respectively and they are all in relation to the rejected and marked Exhibits AG and AH being the Nigerian Tide Newspaper Publications of 20-12-1985 and 11-8-1986. There is therefore, no need to determine separately the parties issues 1 and 3. I am of the view that issue 3 will encompass issue 1, and this is what I will do, because, if the rejected Nigerian Tide Newspapers is found to be an error, and the publications are admitted, it will reach to the conclusion that 2nd appellant, was a bona fide purchaser for value without notice. But if the publications were lawfully rejected in accord with section 111 of the Evidence Act, then the 2nd appellant will not be regarded as bona fide purchaser for value without notice.
Parties Issue No. 3.
The appellant argument is that 2nd appellant pleaded in paragraphs 6 and 7 of her statement of defence and in paragraph 1 of her counter claim that she bought the property in dispute pursuant to the publications in Nigerian
Tide Newspaper of 20-12-1985 and 11-8-1986. That the pleaded newspapers Tide were tendered and marked as 1D1 and 1D2. That DW2, called by the appellants, testified and tendered the original Newspapers and therefore came from proper custody which were relevant, and the original copies were never denied or controverted by the respondent. That the rejected two original publications were the heart heat of the 2nd appellant’s case. That the trial judge in rejecting the original newspaper publications was on wrong ground, because it was laced with technicality. That it was the fault of the trial judge who, saw and accepted the original bound papers, and suo motu, ordered for photocopying of the original documents. That the trial judge did not ask the respondent’s counsel to examine and compare the original publications with the ordered photocopy of the same, but on his own volition rejected the same documents. That the courts of law now, have moved far away from narrow technicality and moved to doing substantial justice, and referred and relied on the authority in the case of Kosen v. Savanna Bank Ltd (1995) 12 SCNJ 29; Caralletti Giovanni v. Bonasco Luigi in SC 407/67 which was delivered on 31-10-1969 by Fatayi Williams, JSC; Magori v. Bauchi (2004) All FWLR (Pt. 197) 1008; Abbch v. Tabusco Nig. Ltd (2008) 3 NWLR (Pt. 197) 1008; Aribisala v. Ogunyemi (2001) All FWLR (Pt 31) 2807 and Umogbai v. Aiyehoba (2002) FWLR (Pt. 132.) 192.
In opposing the issue of admissibility of the Nigeria Tide Newspapers, the respondent has referred to sections 111 and 112 of the Evidence Act and submitted that the trial judge was justified in rejecting Exhibit A-H and A-G which were rejected. Counsel referred to the case of Okonji v. Njokauma (1999) 14 NWLR (Pt. 638) 250 where Achike. JSC (retired), had said that, the formalities for admissibility of public documents are and comprehensively lay sown under section 111 (1) and 112 of the Act, and urged the court to resolve issue 3 in favour of the respondent.
I have carefully considered the 2nd appellant’s statement of defence and counter claim against the respondent. In paragraphs 6 and 7 of the 2nd appellant’s statement of defence, she clearly pleaded that, the principal of 1st appellant, had stipulated a period for the renovation of the property in dispute which she did along with other tenants. She pleaded the publications made by the Rivers State Government in the Nigerian Tide Newspaper of Friday, the 20th day of December, 1985, at page 4 No 188. That in the said publication, all potential claimants were directed to come within 7 days to substantiate their claims. She expressly relied upon the publication and averred that, neither the plaintiff nor any other person came forward during the 7 days period to substantiate his or their claims. That since she had complied with the period and substantiated her claims over the property in dispute, the Rivers State Government published for sale in the other Nigerian Tide Newspaper of Monday the 11th of August, 1986. She expressly pleaded and relied on the said newspapers. The 2nd appellant in her counter claim at paragraph 2 repeated and adopted all her averments in paragraphs “…..6 and 7 ….of her statement of defence, as if same were set out seriatim and specifically pleaded in the counter claims. In law, the present respondent was bound to make response in paragraphs 6 and 7 of the statement of defence and counter claim more so, 2nd appellant had pleaded Newspaper publications and expressed her determination to rely upon. But to my utter surprise, the respondent’s reply to the 2nd appellant’s averments or pleadings in paragraphs 6 and 7, are conspicuously absent.
In other words, the respondent had no answer or contradiction nor controverted the pleadings in 2nd appellant’s facts in paragraphs 6 and 7 which were also adopted in the counter-claim. It is settled principle of law that facts that are admitted need no further proof. They are taken as established by virtue of section 75 of the Evidence Act. Admitted facts are the strongest evidence available to the trial court, see Din v. African Newspaper of Nigeria (1990) 3 NWLR (Pt. 139) 393; Igwe v. A.C.B. Plc (1996) 6 NWLR (Pt. 605) 1; Total (Nig) Plc v. Morkah (2002) 9 NWLR (Pt. 773) 493; Ogbiri v. N.A.O.C. Ltd (2010)14 NWLR (Pt. 1213) 208.
Once facts and evidence pleaded is not challenged, or controverted by the party against whom they are pleaded or averred as done by the 2nd appellant in the instant appeal, they are deemed to have been admitted, see Okelola v. Adeleke (1999) 1 NWLR (Pt, 585) 55; Total (Nig) , Plc v. Morkah (Supra) and Ogbiri (supra). In the instant appeal, I am of the considered finding that, it was unnecessary for the learned trial judge to look at the issue of certification for admissibility of the Nigeria Tide Newspapers which were pleaded, established and by tendering the original of the Newspaper in a bulk volume because the respondent had no reply on the Tide Newspapers. It was a futile exercise as facts admitted need no further proof. It was therefore an error on the part of the trial judge, who on his wrong assumption, went on a frolic of his own, suo motu, ordered that, the original had to be photostatted and be certified before its admissibility. The trial judge should have known that it is now firmly settled that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence and particularly documents, depend again, on the purpose for which it is to be tendered; see the erudite decision of Ogbuagu, JSC (rtd) in the case of Ogbe v. Asade (2010) 40 NSCQR 386 at 424. In the instant appeal, I accept the contention of the appellants that, the trial judge relied on technicality and rejected the Nigeria Tide Newspapers of 11th August, 1986 and 20th December, 1985 respectively. The rejected publication made by the trial judge was perverse, and I hereby set aside. The rejected Exhibits AG and AH are hereby admitted. It is to be noted that, in fact, the, 2nd appellant had no obligation to tender the publication because the respondent did not react to same, and in law, documents pleaded and established but not denied is deemed admitted. I therefore, resolve issues 1 and 3 in favour of the appellants and against the respondent because by virtue of the two Nigerian Tide Newspapers of 20th December, 1985 and 11th August, 1986 respectively, the property in dispute situated and marked as No 38 Elechi Street, Mile 3, Diobu Port Harcourt was offered to the 2nd appellant. It is therefore not in dispute that; the 2nd appellant’s agreement with the 1st appellant was valid. The 2nd appellant was a bonafide purchaser for value without notice. The 2nd appellant’s statement of defence and counter-claim in paragraph 4 is well established by their evidence in chief which was never discredited by the respondent. In my considered opinion the parties, issues 2 and 4 are very simple. Issue 2 is whether the trial judge was right in ordering specific performance, when the trial judge could have awarded damages as claimed by the respondent as an alternative remedy. I quoted much above at page 2 of this judgment the respondent’s statement of claim in which he alternatively claimed for special and general damages of N1 million. I believe that, the respondent had paid the purported offer of N36, 800.00. He tendered exhibits showing payment of the purported offer to the 1st appellant. He could not substantiate the claim of interest at 5% per annum from 20th December, 1985 until judgment. Any pleading not proved goes to no issue. The respondent claimed general damages of the sum of N963, 200.00 of the record.It is settled principle of law of damages that, a trial judge can award general damages even if it is not pleaded or proved, see the case of U.A.C. of Nig. Plc v. Prince O.O. Sobodu (2006) ALL FWLR (Pt. 329) 877 and Elf Petroleum Nig Ltd v. Unah (2006) ALL FWLR (Pt. 343) 1761. In the instant appeal, an award of general damages as averred by the respondent is to compensate for the loss of the property in despite which is presumed by law to flow from the 1st appellants wrongful acceptance of money bill on the alleged offer over the landed property in dispute. I therefore, use my lawful discretion judiciously and judicially and award a general damage of N250, 000.00 in favour of the respondent and payable by the 1st appellant. The award is used with reference to the specific alternative claim made by the plaintiff/respondent.
In the final analysis, the appeal is partly allowed. The 2nd appellant is the lawful owner of the land in dispute.
Parties to bear their costs.
EJEMBI EKO, J.C.A: The judgment just delivered by my learned brother, ISTIFANUS THOMAS, JCA has covered all that I need to say in this appeal. I have nothing further to add. I hereby adopt same, including the consequential orders therein.
T. O. AWOTOYE J.C.A.: I have had the privilege of reading the judgment just delivered by’ my learned brother THOMAS JCA, my learned brother has dealt exhaustively with the issues in this appeal.
I have nothing to add. I am in agreement with his reasoning and conclusion.
I allow this appeal in part. Parties are to bear their costs.
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Appearances
Wilcox Abereton Esq.For Appellant
AND
E. N. Duru Esq., with E, A. Abel EsqFor Respondent
