SHAFA & ANOR v. SULEIMAN & ORS
(2020)LCN/15458(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/J/234/2018
RATIO
WORDS AND PHRASES: PUBLIC DOCUMENT
In rejecting the documents the learned trial judge relied on Sections 102, 103 and 104 of the Evidence Act on certification of public documents and the document according to the learned trial judge being public documents they ought to be certified before they can be admitted as evidence.
The simple question is whether or not the documents are public or private documents.
For better appreciation of the aforementioned provisions of the Evidence Act, I herein under reproduce them thus:
Sections 102, 103 and 104 of the Evidence Act.
Section 102:-
The following documents are public documents:
(a) Documents forming the official act or record of the official act of:
(i) The sovereign authority
(ii) Official bodies and tribunals, or
(iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public record kept in Nigeria of private documents.
Section 103:-
All documents other than public documents are private documents.
Section 104:-
(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection 1 of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section.
For the admissibility of document falling within the aforementioned provisions of the Evidence Act, they must be certified. See the following cases; ANAGBADO V FARUK (2018) LPELR – 44909; KALU IGWU UDUMA V PRNCE ARUMA ARUNSI AND 14 ORS (2010) LPELR OR (2012) 7 NWLR (Pt. 1298) p. 55, STIRLING GEOTECHNICAL (NIG) LTD V GALMAS INTERNATIONAL LTD AND ANOR (2010) 4 NWLR (Pt. 1184) 361 where this Court described public document as follows per Aboki JCA as he then was now Justice of the Supreme Court.
“A public document is a document made for the purpose of the public making use of it, especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for the good of the public and always accessible for public inspection and use, especially by all those having something to do with it.”
One may ask the question, what is a public document. In Stroud’s Judicial Dictionary, a public document is described as that made for the purpose of the public making use of it and one of which the public have access.
In Halsbury’s Law of English 3rd Edition Vol. 12 page 813, “Public document has been defined to mean a document made by a public officer for the purpose of public making used of it and being able to refer to it”. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
GROUND OF APPEAL: CONSTITUENT OF A COMPETENT GROUND OF APPEAL
A ground of appeal is the complaint against the decision appealed against. See NEFCO NIGERIA LIMITED AND ORS V MR. UDO EKERE & ORS (2013) LPELR- 20423. A competent and good ground of appeal must constitute a complaint against the decision challenged. See CHRISTOPHER U. NWANJI V COASTER SERVICES (NIG) LTD (1999) LPELR 13063, DAGACI OF DERE AND ORS V DAGACI OF EBWA AND ORS (2006) LPELR – 911. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
GROUND OF APPEAL: WHETHER AN ISSUE FOR DETERMINATION MAY BE FORMULATED FROM MORE THAN ONE GROUND OF APPEAL
It can be seen that issues 3, 5 and 6 are all distilled from ground 3 (three). This situation at hand has received numerous knocks from the Apex Court and this Court. Several times, the Courts have dropped the gavel in their pronouncement condemning in all ramification the act of drafting more than one issue from a ground of appeal. Put in another way, drafting more than one issue from a ground of appeal is outrightly frowned at and condemned. Rather a party can formulate an issue from more than one ground and not more than one issue from one ground. This is termed in legal parlance as proliferation of issues. Where out of one ground of appeal in the notice of appeal, more than one or many issues are formulated the issues so formulated will be rendered incompetent. One ground of appeal should only give birth to one issue for determination, or one issue is formulated from a combination of more than one ground of appeal. See the following cases ISHEMBER JOB KALIBU V THE BENUE STATE PLANNING COMMISSION AND ORS (2019) LPELR – 47264; INOGHA MFA & ANOR V MFA INONGHA (2014) LPELR – 22010, GUARANTY TRUST BANK PLC V ESTHER ABIMBOLA KUTI (2018) LPELR – 49652, ODO EMENA NWAIGWE AND ORS V NZE EDWIN OKERE (2008) LPELR 2095. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
1. A. A. SHAFA 2. A. A. SHAFA LIMITED APPELANT(S)
And
1. ABDULKADIR Y. SULEIMAN 2. THE DEPUTY SHERIFF BAUCHI STATE HIGH COURT 3. USMAN YARI RESPONDENT(S)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): By the Amended Statement of Claim of the 1st Respondent in this appeal who was the Plaintiff before the High Court of Justice Bauchi State, and through which he sought for the following reliefs against the 1st and 2nd Appellants and the 2nd and 3rd Respondents as Defendants.
1. An Order setting aside the auction sale of his property at No. 9 Adamu Jumba Road GRA Bauchi State covered by Certificate of Occupancy No. NE/397.
2. AN ORDER compelling the Deputy Sheriff to initiate an inter pleader proceeding at the instance of the Plaintiff.
3. N20,000,000.00 general damages.
4. N500,000.00 as professional fee and cost of this action.
5. N13,800,000.00 special damages.
Issues were joined by parties on the foregoing reliefs sought and hence the suit proceeded to full trial where in the Plaintiff testified and called three witnesses. The 1st and 2nd Defendants and the 3rd Defendant (1st Appellant) respectively gave evidence.
Let me put on record that the 3rd and 4th Defendants (Appellants) in their joint statement of defence counter claimed as follows: “BY WAY OF COUNTER CLAIM, the 3rd and 4th Defendants repeat paragraphs 1,2,3,4,5,6,7 and 8 and Counter claims as follows:
(a) A Declaration that the Defendants/Counter Claimant is the owner and bona fide purchaser of the property from an authority having power to dispose of the property in conformity with the law.
(b) That cost of this action assessed at N500,000.00 to engage the services of a Counsel to defend the action over a property they bought legally and by a legitimate means.
(c) WHEREOFF the 3rd and 4th Defendants deny the entire reliefs sought by the Plaintiff and thereby urge this Honourable Court to dismiss the action as being frivolous, vexatious, malicious, an abuse of Court process despite being characterised by larches and acquiescence on the side of the Plaintiff.”
The suit went through a process of full trial and in the end, the learned trial judge in his wisdom concluded as follows (See pages 395-397 of the Record of Appeal).
“Arising from the findings so far made, judgment is hereby entered as follows:
(1) AN ORDER is hereby made setting aside the auction sale of the property in dispute lying and situate at No. 9 Adamu Jumba Road GRA, Bauchi, Bauchi State covered by a Certificate of Occupancy No. NE/397.
(2) N1,000,000.00 General damages against the defaulters.
(3) N350,000.00 as professional fee and cost of this action.
(4) Prayer No. 2 to compel the Deputy Sheriff to initiate interpleader proceedings fails and accordingly dismissed.
On the claim for special damages, although it is in evidence that the property in dispute was demolished however, the value of N12,000,000 was not strictly proved as agreed by law, and I cannot grant the same prayer as it would amount to speculation which Court are not open to. In the case of MAZI AUGUSTINE AKAHIE VS SISTER MARY OCHULOR (2015) 24552.
Special damages of N800,000 and N100,000 for the property of the tenants in the house in dispute that was destroyed and for the economical trees cleared, no evidence was given on these and are accordingly dismissed.
On the Counter claim of the 3rd and 4th Defendants the claim also fails and dismissed as the foundation upon which they purchased the property was based on illegality. You cannot put something on nothing and expect it to stand. See the case of UAC V MACFOY (1962) A. C. 158.”
The foregoing outcome of the trial did not go well with the 3rd and 4th Defendants on one part and the Plaintiff on the other part hence the appeal by the 3rd and 4th Defendants, which is predicated on the Notice of Appeal dated 28th day of May, 2018 containing four grounds and the Notice of Cross appeal by the Plaintiff/1st Respondent dated 29th day of April, 2019 and filed on 30th April. 2019. It has two grounds.
In the Appellants’ Notice of Appeal, there are four grounds and the sole relief sought in paragraph 4 is as follows:
”To allow the appeal and set aside the judgment of the lower Court.”
In the same vein, the 1st Respondent/Cross Appellant in paragraph 4 of his Notice of Cross appeal sought for the following reliefs:
(1) AN ORDER setting aside the Ruing of the lower Court held on the 20th July, 2016 refusing to admit the following documents thus:-
(a) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Lands and Survey.
(b) Original letter conveying approval of the Plaintiff loan application by the secretary Federal Government staff housing Loans Board.
(c) Original letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff Counsel.
(2) AN ORDER admitting the following documents to wit:
(i) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Land and Survey.
(ii) Original letter conveying approval of the Plaintiff loan application by the Secretary Federal Government Staff Housing Loan Board.
(iii) Original letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff Counsel.
(3) AN ORDER setting aside the decision of the lower Court regarding the Cross Appellant/Plaintiff’s claim for special damages.
(4) An Order awarding special damages as per the Cross Appellant/Plaintiff’s claim in paragraph 5 of the Amended Writ of Summons and Statement of claim dated the 24th March, 2015.
The brief fact leading to the action before the trial High Court is that in suit No. BA/167/2010, Between Usman Yari (the 3rd Respondent in this Appeal and Ishaku S. Yakubu & Hajiya Iya Ado at the High Court of Bauchi State, the Plaintiff obtained judgment against the Defendants who are not parties in the suit leading to this appeal. Judgment was entered against the Defendants to the tune of N2,294,960 (Two Million, Two Hundred and Ninety four thousand, Nine Hundred and Sixty Naira). The Defendants judgment debtor defaulted in paying the judgment sum and hence the Plaintiff judgment creditor initiated an enforcement proceeding against the immovable property of the Defendants judgment debtor. Order was granted. A house which is said to belong to Ado Mohammed, the husband of Hajiya Iya Ado was attached. The attachment vide an interpleader process was set aside by the Court that heard the application then. Another enforcement proceeding was again initiated by the Plaintiff judgment creditor (3rd Respondent in this appeal) and before another judge leading to the identification of another property referred to as house No. 9 Adamu Jumba Road GRA Bauchi. Order was granted upon the hearing of an exparte application by the judgment creditor on 27the June, 2013. The said house, a four bedroom bungalow was attached, auctioned and sold to the 1st and 2nd Appellants in this appeal for the sum of N13,000,000.00. Having purchased the said property vide the Court auction, the 3rd & 4th Defendants took possession of the said building and premises and demolished the building.
All the foregoing led to the action by the 1st Respondent against the 1st, 2nd 3rd and 4th Respondents before the trial Court and which judgment has resulted into this appeal and the cross appeal.
Briefs were filed and exchanged by parties.
In the adopted Appellants’ brief of argument authored by Umar Hassan Esq. filed on 18th day of March, 2019 and deemed by the order of this Court as properly filed and served on 28th day of May, 2019, the following issues are identified for the determination of the main appeal.
APPELLANT ISSUES FOR DETERMINATION
(1) Whether a 3rd party claim over an attached property in the course of execution shall be by interpleader proceedings? (Ground one)
(2) Whether an auction sale of an attached property in satisfaction of judgment can be challenged after the lapse of the statutory period (Ground Two).
(3) Whether looking at the circumstances of the case the trial Court was right when it made an order setting aside the auction sale having held that there was no irregularity in respect of same (Ground three)
(4) Whether the trial Court was right when it declared the auction and sale of the subject matter in dispute as null and void having been made by the order of the Court of concurrent jurisdiction (Ground four)
(5) Whether the trial Court was right when it acted on the evidence of PW111 after he admitted under cross examination that the signature on his witness statement on oath is not his own? (Ground 3)
(6) Whether the lower Court was right when it set aside the auction sale wherein the 4th Defendant had validly and legally bought the property at No. 9 Adamu Jumba Road covered by C of O No. NE/397 hence a bona fide purchaser for value without notice with the order of Court of co-ordinate jurisdiction? (Ground three)
In the 1st Respondent’s brief of argument signed by I.S. Salman Esq., Issues 1-4 distilled by the Appellants were adopted. The said brief was filed on the 11th June, 2019 and deemed as properly filed and served on 17th day of September, 2019.
The adopted issues from the Appellants’ issues are as follows:
1ST RESPONDENT’S ISSUES FOR DETERMINATION
(1) Whether a third party claim over an attached property in the course of execution shall be by interpleader proceedings? (Ground one)
(2) Whether an auction sale of an attached property in satisfaction of judgment can be challenged after the lapse of the statutory period to so challenge? (Ground Two)
(3) Whether looking at the circumstances of the case the trial Court was right when it made an order setting aside the auction sale having held that there was no irregularity in respect of same (Ground 3)
(4) Whether the trial Court was right when it declared the auction sale of the subject matter in dispute as null and void having been made by the order of the Court of concurrent jurisdiction? (Ground 4)
The 2nd Respondent (The Deputy Sheriff Bauchi State High Court) did not file any brief in respect of the main appeal. He only reacted to the brief of the 1st Respondent/Cross Appellant. Hence his brief of argument is that of a Defendant/Cross Respondent. He neither offers any argument in respect of the main appeal nor submitted any issue for the determination of the appeal.
D. M. Abejeme Esq. on behalf of the 3rd Respondent/Cross Respondent filed his brief of argument dated 15th day of September, 2020 on the 16th day of September, 2020. The said brief was deemed vide the order of this Court made on the 17th day of September, 2020 as properly filed and served. He adopted issues 2, 3 and 4 of the issues submitted by the Appellant to wit:-
3RD RESPONDENT’S ISSUES FOR DETERMINATION
(2) Whether an auction sale of an attached property in satisfaction of judgment can be challenged after the lapse of the statutory period to so challenge? (Ground Two)
(3) Whether looking at the direction of the case the trial Court was right when it made an order setting aside the auction sale having held that there was no irregularity in respect of same? (Groun3)
(4) Whether the trial Court was right when it declared the auction and sale of the subject matter in dispute as null and void having being made by the order of the Court of concurrent jurisdiction? (Ground 4)
I have read and compared all the foregoing issues by respective parties and consequent upon the position of the 1st and 3rd Respondents adopting part of the Appellants’ submitted issues, I consider it justifiable to adopt the issues formulated by the Appellants for the determination of this appeal.
But before my consideration of the issues it has become necessary for the Court to determine the competence or otherwise of the six issues presented by the Appellants. It can be seen that issues 3, 5 and 6 are all distilled from ground 3 (three). This situation at hand has received numerous knocks from the Apex Court and this Court. Several times, the Courts have dropped the gavel in their pronouncement condemning in all ramification the act of drafting more than one issue from a ground of appeal. Put in another way, drafting more than one issue from a ground of appeal is outrightly frowned at and condemned. Rather a party can formulate an issue from more than one ground and not more than one issue from one ground. This is termed in legal parlance as proliferation of issues. Where out of one ground of appeal in the notice of appeal, more than one or many issues are formulated the issues so formulated will be rendered incompetent. One ground of appeal should only give birth to one issue for determination, or one issue is formulated from a combination of more than one ground of appeal. See the following cases ISHEMBER JOB KALIBU V THE BENUE STATE PLANNING COMMISSION AND ORS (2019) LPELR – 47264; INOGHA MFA & ANOR V MFA INONGHA (2014) LPELR – 22010, GUARANTY TRUST BANK PLC V ESTHER ABIMBOLA KUTI (2018) LPELR – 49652, ODO EMENA NWAIGWE AND ORS V NZE EDWIN OKERE (2008) LPELR 2095. Having said these, the consequence of proliferation of issues is an order striking out the issues and the ground that gave birth to such prolifix. The issues are incompetent and liable to be struck out. See ALHAJI MUSA SANUSI OLAIYA V MR BONIFACE OKEKE (2012) LPELR – 19671, OGOYI V UMAGBA (1995) 9 NWLR (Pt. 419) 283 at 297, OSAKWE V F.C.E. ASABA (2010) 10 NWLR (Pt. 1201) 1. Therefore and on a final analyses, issues 3, 5 and 6 by the Appellant are barren, impotent and are liking to that of a toothless bull dog that can only bark but cannot bite. By this therefore and in exercise of the vires conferred on the Court by law, issues 3, 5 and 6 are hereby struck out for being incompetent. In consequence ground 3 is also struck out since no competent issue has been formulated from it.
Having regard to the foregoing, the Court is now left with issues 1, 2 and 4 of the Appellant. I will now proceed to consider those issues herein under.
ISSUE ONE
Whether a 3rd party claim over an attached property in the course of execution shall be interpleader proceedings (GROUND 1)
In arguing this appeal, the learned Counsel representing the Appellants submitted that the 1st Respondent who is the Plaintiff before the lower Court ought to initiate an interpleader proceedings where his property is wrongly attached and must comply with the relevant provision of the law. It is his case that the 1st Respondent did not comply, having not initiated an interpleader proceedings. Rather than initiating an interpleader proceeding, he instituted this action after the property in question attached was auctioned. He is also aware when the attachment was going on. It took him not less than 16 months to institute the action. He referred to page 71 of Vol. 2 of the Record of proceedings where the Respondent said it took him and his Counsel 16 months to take the necessary action. He added that the Respondent has not in any way satisfied the condition precedent as provided in law to warrant this Court to compel the Deputy Sheriff to initiate interpleader proceeding and other reliefs sought. He submitted that the Plaintiff cannot file this action unless he complied with the provisions of Section 33 of the Sheriff and Civil Process Act Cap. S. 6 LFN 2004. He submitted that the trial Court gave the 1st Respondent what he did not plead in his statement of claim and did not adduce evidence on. The Court cannot give what has not been pleaded and on which evidence has not been led. He referred to the case of OKEGBE V AKPOME (2014) ALL FWLR (Pt. 731) pg. 1585 at 1588 Ratio 3 on bindness of parties by their pleadings. For the 1st Respondent to succeed in his case, he has to comply with the relevant provisions of the law. He referred to Section 47 of the Sheriff and Civil Process Act Cap. S. 6 LFN 2004. He contended that the trial Court which held that the 1st Respondent did not utilize the opportunity given to him by law cannot go ahead and set aside the attachment and the auction sale. He added that by Section 48 of the Sheriff and Civil Process Law, the sale shall be deemed absolute. He added, that where there is a procedure for doing an act as provided by law, such procedure must be followed. The 1st Respondent in the instant case failed to comply with the provision. He relied on the case of C.I.I. LTD V A.S.C. LTD (2004) ALL FWLR (Pt. 731) pg. 1441 at 1446 Ratio 7. Failure to comply with the provision of Section 33 of SCPA CAP. S 6 LFN 2004 will warrant the Deputy Sheriff to sell the attached property. He referred to Section 33 SCPA CAP. S. 6 LFN 2004.
It is his case, that it is in evidence before the Court by 2nd Defendant that after the sale of the property, he has received the judgment sum from the Court. This implies that the Deputy Sheriff who is now the 2nd Respondent (1st Defendant at the trial Court) has complied with Section 33 SCPA Cap. 6 LFN 2004 by selling the attached property and pay into the Court the proceed of the sale for the satisfaction of the judgment debt. Having not been denied of the right to ventilate his grievance by the 1st Defendant at the trial Court through interpleader, the claim to compel the Deputy Sheriff to commence interpleader proceedings and to set aside the attachment and auction sale must fail together. He urged the Court to hold that there was nothing before the trial Court to set aside the sale as the Deputy Sheriff (2nd Respondent) had acted in compliance with the law devoid of any irregularity.
On behalf of the 1st Respondent and in reaction to issue one, learned Counsel submitted that the said issue has no nexus with the finding of the lower Court. He referred to the finding of the trial Court on page 396 of Vol. 11 of the record of proceeding Vol. 11 and in particular item No. 4 which says thus:
“Prayer No. 2 to compel the Deputy Sheriff to initiate interpleader proceedings fails and is accordingly dismissed.
While prayer No. 2 of the relief sought (which is what the Court referred to above) the Plaintiff/Respondent/Cross Appellant averment in his originating process reads thus:
“An order compelling the Deputy Sheriff to initiate an interpleader proceedings at the instance of the plaintiff.”
For the foregoing, he submitted that the said issue (1) does not in any way intend or presupposes an attachment of the judgment of the trial Court considering the fact that the decision of the lower Court favours the Appellant in this aspect hence, the said issue one (1) logically is unarguable. He added that a ground of appeal is a complaint against a decision of a Court, and an issue for determination is a substantial question to be determined by the Court in deciding the appeal. He added that while ground one and its particulars points at lack of locus standi on the part of the Plaintiff/1st Respondent/Cross Appellant to have instituted the suit at the lower Court, issue No. 1 formulated by the Appellant and the argument were tend to address the propriety or otherwise of a 3rd party claim, which has to be commenced by an interpleader proceedings. He referred to Section 33 of the Sheriff and Civil Process Act Cap. 46 LFN 2004. He added that the best way to commence an action in the trial Court is by way of an originating summons. He contended that the entire argument in support of issue 1 by the Appellant which is purportedly said to have been distilled from ground 1 of the notice and ground of appeal filed by the Appellant are entirely in mishap with each other considering the fact that if placed side by side with the decision of the lower Court it cannot be said to have been rooted and or arise from the judgment appealed against. He urge the Court to so hold and strike out ground one and issue one for being incompetent. He referred to UNILORIN VS OLAWEPO (2012) 52 NWLR (Pt. 42), ENTERTECH ENGR LTD V A.P. (NIG) LTD (2015) 5 NWLR (Pt. 1452) page 325.
In the alternative, he argued that the issue of locus standi raised was never raised before the trial Court hence the Appellant cannot contest same now since it is in no where considered in the judgment appealed against. He relied on the case of OWIE V IGHIWI (2005) 5 NWLR (Pt. 917) 184. He contended further that the right of the 1st Respondent to institute the action is purely an issue of substantive law which deals with right and obligation of persons, which for all intent and purposes is confered on the 1st Respondent as the owner of the property in question which was wrongly attached and auctioned by the 2nd Respondent. He added that by Section 44 (1) of the Constitution of the Federal Republic of Nigeria 1999. No movable and immovable property of any person shall be taken possession of compulsorily except in the manner as prescribed by law. He also referred to Section 46 of the Sheriff and Civil Process Act Cap S.6 LFN 2004 and argued that the requirement of bringing an action within 21 days as stated in Section 46 SCPA will be determined when there is evidence before the Court can determine same being an adjectival law. He submitted that the 1st Respondent as a Plaintiff has the locus standi to institute the action. He added that Legal capacity to institute proceedings in the Court of law is accorded to the person who shows that his civil right and obligation have been or are in danger of been violated or adversely affected. He relied on the case of ADESOKAN V ADEGOROLU (1997) 3 NWLR (Pt. 493) 261, OBUEHI VS GOVERNOR OF IMO STATE (1995) 9 NWLR (Pt. 417) 53.
To determine this, recourse has to be made to the averments in the statement of claim at the lower Court. He relied on paragraphs 4 to 14 as well as paragraphs 1-4 of the plaintiff’s averment in his statement of claim and the relief sought thereat on pages 3 to 5 of volume 1 of the record of proceedings clearly shows sufficiently the Plaintiff’s legal interest in seeking redress from the Court below. He urged the Court to hold that the Plaintiff has the locus standi to institute the action at the lower Court.
The 2nd and 3rd Respondents did not offer any argument in respect of this issue.
Having carefully and painstakingly read the arguments of the Appellants and the 1st Respondent on this issue, the question I consider germane is whether or not this issue arises from ground one of the Grounds of Appeal and if need be, whether or not the 1st Respondent has the locus standi to institute the action. In answering this question, I will like to ask what is an issue? Let me start by considering the aim of pleadings. Pleading has always been said to be for securing from the Defendant as many admissions as the fact and circumstance of each particular given case warrants. It is also said to narrow the scope of the controversy. Put in another words it narrows down the issue in controversy. Hence parties are said to be bound by their pleadings and that any evidence given which is at variance with such pleadings goes to no issue and would be disregarded by Court. Now to the question, what is an issue? Simply put, an issue is every disputed question of fact in issue. It can also be said to be that crucial and central issue which if decided in favour of the Plaintiff will in itself give him a right to the relief sought and subject to some consideration of other arising subsidiary issues. An issue of fact arises when a fact is maintained by one party and is controverted by the opposite party in the pleadings. It therefore suffices to say that when parties have answered one another’s pleadings in such a manner that they have arrived at some material point or matter of fact, affirmed one side and denied on the other, they are said to have joined issue. Whatever question that comes up as a result would be called an issue. Let me add that it is not every issue of fact raised in the pleading that is an issue. A number of issues of fact may be raised in pleadings, but they will only become issue when they have a bearing on the principal question for determination. Therefore the determination or resolution of dispute between parties as to their legal rights or duties would involve the determination of different issues.
Giving the foregoing, will enable the Court determine whether the complaint of the Appellant in ground one gave birth to issue one. Saying it in another way whether the facts in controversy gave birth to ground one and from which issue one is generated. See ALHAJI RAMON AKINADE V NIGERIAN LAW SCHOOL LAGOS CAMPUS STAFF CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD (2015) LPELR – 41705, PRINCE (DR.) B.A. ONAFOWOKAN AND ORS V WEMA BANK PLC & ORS (2011) LPELR – 2665, AFRICAN INTERNATIONAL BANK LTD V INTEGRATED DIMENSIONAL SYSTEM LTD (2012) LPELR – 9710. From here I will proceed to examine the ground of appeal. A ground of appeal is the complaint against the decision appealed against. See NEFCO NIGERIA LIMITED AND ORS V MR. UDO EKERE & ORS (2013) LPELR- 20423. A competent and good ground of appeal must constitute a complaint against the decision challenged. See CHRISTOPHER U. NWANJI V COASTER SERVICES (NIG) LTD (1999) LPELR 13063, DAGACI OF DERE AND ORS V DAGACI OF EBWA AND ORS (2006) LPELR – 911. In the light of the foregoing, an issue raised in an appeal affecting the decision of the lower Court must be backed by a ground of appeal. Where there is no ground of appeal in support of the issue raised, the issue will be discountenanced and struck out. Grounds of appeal are the taproots of the judgment appealed against in that they lay the foundation upon which the appeal stands. For the purpose of ground of appeal which in summary constitutes a notice on the adverse party of the complaint of the Appellant. Therefore an Appellant is estopped from raising issues outside the ground of appeal of which notice has been given. See DR. ROY PEDRO UGO V AUGUSTINA CHINYELU UGO (2017) LPELR – 44809. From the foregoing, the question that comes to mind is whether the ground one of the ground of appeal and issues one formulated therefrom are competent. From a community reading of the judgment appealed against, the ground one of the grounds of appeal and the issue one generated therefrom, does not appear to me that the issue is founded on ground one of the grounds of appeal. For purposes of better understanding, I reproduce herein under Ground one and its particulars and issue one:
GROUND ONE
“The trial Court erred in law when it entertained the suit filed by the 1st Respondent same having no locus standi to initiate the suit.
PARTICULARS OF ERROR
(a) The case at the lower Court emanated as a result of case No. BA/69/2010 between Usman Yari (3rd Respondent) V Ishaku Yakubu and Hajiya Iya Ado.
(b) The 1st Respondent who is the Plaintiff at the lower Court is not a party in suit No. BA/69/2010.
(c) The 1st Respondent did not initiate an inter pleader proceeding after the judgment in suit No. BA/69/2010.
(d) The claim in this suit before the lower Court which was filed by the 1st Respondent included an order challenging the auction and sale of a property attached in suit No. BA/69/2010 which the 1st Respondent is not a party to.”
The issue presented on the foregoing ground of appeal is thus:
ISSUE ONE
Whether a 3rd party sale of an attached property in the course of execution shall be by interpleader proceedings (Ground one)
Comparing the ground of appeal and the issue distilled therefrom, they are not on the same course. The ground is challenging the appropriateness of a 3rd party claim by an interpleader proceedings while the issue generated therefrom is that of locus standi of the 1st Respondent to sue. In the judgment appealed against, issue of locus standi was never before the trial Court for determination and hence there was no pronouncement on locus standi. The conclusion of the trial Court in this regard is that the order sought by the 1st Respondent to compel the Deputy Sheriff to initiate an interpleader proceeding fails and is accordingly dismissed. This conclusion is predicated on the relief sought by the 1st Respondent wherein he sought for the order of the Court compelling the Deputy Sheriff to initiate an interpleader proceeding.
In the circumstance, it stands to reason that the issue and the ground of appeal under discourse are at cross purposes. It is also at variance with the conclusion of the Court on the claim of the Plaintiff/1st Respondent before the trial Court. On this note I found issue one incompetent and same is discountenanced and struck out. Issue one is therefore resolved against the Appellants.
The Court is now left with issues two and four. For their substance, I have decided to take them together:
ISSUE 2
Whether an auction sale of an attached property in satisfaction of judgment can be challenged after the lapse of the statutory period to so challenge.
ISSUE 4
Whether the trial Court was right when it declared the auction and sale of the subject matter in dispute as null and void having been made by the Order of the Court of concurrent jurisdiction. (Ground 4)
On this issue, the argument of the Appellant is that with the provision of Section 47 SCPA LFN 2004 the Respondent’s case to set aside the sale is statute barred for it exceeds the 21 days period as provided by law. He referred to the case of AKWA IBOM STATE UNIVERSITY VS IKPE (2016) 6 NWLR Pt. 1504 page 146 at 153 Ratio 9. He contended that the issue complained of was carried out on 15th July, 2013 and the suit thereto was initiated on the 14th February, 2014. He submitted that the non compliance by the 1st Respondent with the laid down mandatory procedure to set aside the sale renders the sale absolute. He referred to the case of IKUMONIHAN V STATE (2014) ALL FWLR (Pt. 727) pg. 774 at 778 Ratio 4. He submitted that the trial Court lacked the jurisdiction to set aside the sale by virtue of the provision of Section 47 SCPA Cap. S. 6 LFN 2004 and S. 46 SCPL Cap. 146 Vol. 4 Law of Bauchi State 2007 which renders the sale statute barred. The effect of this according to the Appellant is that it touches on the jurisdiction of the Court. He relied on the case of FOLARIN V IDOWU (2014) ALL FWLR (Pt. 727) pg. 743 at 747 Ratio 3. He submitted that the trial Court was wrong in law when it disregarded the provisions of the law, the authorities cited and went ahead and set aside the sale. He added that regardless of the finding of the Court in page 379 of Vol. 2 and page 380 of Vol. 2 of the record, the trial Court still went ahead to set aside the sale against the provision of the law. He referred to the case of OKEGBE V AKPOME (2014) ALL FWLR (Pt. 731) pg. 1585 at 1588 Ratio 3 on issue of bindness of pleadings on parties. He further cited the following cases OKOYE V STANDARD BANK OF WEST AFRICA (1971) ALL NLR 396, AFRICA CONTINENTAL BANK PLC VS NWANNA TRADING STORES (NIG) LTD (2007) 1 NWLR (Pt. 1016) 596.
He urged the Court to hold that the trial Court was wrong when it set aside the attachment and the sale which it held is deemed absolute and having also held in page 382 of Vol. 2 of the Record of proceedings.
On behalf of the 1st Respondent, it is contended that the action by the 1st Respondent as Plaintiff before the trial Court cannot be said to be statute barred having regard to Section 47 of the SCPA LFN (2004) having exceeded 21 days. He relied on the case of IBRAHIM LIMAN KATAGUM AND ANOR V ALH. DANLADI ME-MAI Suit No. BA/63/2004 Reported in (2014) LPELR- 23227 Ratio 4 to fault the process leading to the attachment and sale of the property in issue. Therefore the issue of lapse of time cannot operate against it. In support of the foregoing he referred to the following facts.
(1) The purported order dated the 27th June, 2013 which is Exhibit D2 was obtained vide Motion Exparte which is an aberration of the principle in the case of Saleh V Monguno (supra) the said order is referred to as document No. 1 in Exhibit J.
(2) Both the purported attachment and auction of the property in question were all made on the same date as shown by the content of Exhibit D3.
He contended that there was no proper attachment of the property in question capable of justifying the sale of the property which would have imposed on the 1st Respondent the duty to apply within the 21 days, hitherto a gross irregularity is occasioned which is entirely an aberration of the law, hence Section 44 of the Constitution of the FRN 1999 (as amended) comes into play. He cited the case of OBIKOYA AND SONS LTD V GOVERNOR OF LAGOS STATE (1987) 1 NWLR (Pt. 5) at page 385 at 358-387.
It is his case that both the law and equity would not permit the Appellant to hide under illegality to seek for justice and that it is against the latin maxims:-
(1) “He who seeks Equity must do Equity”
(2) “He who comes to equity must come with clean hand”
He submitted that there is a total non compliance with the law regarding the attachment and sale of the 1st Respondent’s property hence cannot be heard to challenge an action which results in their own defaults.
He urged the Court to find in view of the foregoing in favour of the 1st Respondent.
The Appellant in his reply brief tried to distinguish the case of SALEH V MONGUNO (2006) NWLR (Pt. 1001) (page not provide) and IBRAHIM LIMAN KATAGUM AND ANOR V ALHAJI DANLADI ME-MAI in Suit No BA/63/2004. He further contended that after the service of the Notice of Auction on the 1st Respondent in May, 2013 he did not react till after 32 months. He also argued that the order for attachment was issued on 27/6/2013 and the property was handed over in September, 2013 and that the Respondent did not take any action till when work started on the premises in 2014 barely 4 months later.
From the totality of the foregoing, the basic contention of the Appellant is that the process adopted by the 1st Respondent of instituting an action contrary to the mode of action prescribed under Section 33 of the Sheriff and Civil Process Act is incompetent. Further to this is that the trial Court having found that the 1st Respondent did not comply with Section 33 of the Sheriff and Civil Process Act cannot turn round and set aside the order of a Court of concurrent jurisdiction.
The 1st Respondent refuted this and argued that the process that led to the order of attachment of the house and sale which was by way of a Motion Exparte as against Motion on Notice as laid down in numerous authority are incompetent again for non compliance with the statutory period of service of notice of attachment and sale of the property which were all carried out either the same day or a day after the purported attachment and sale would not allow for compliance with that provision.
Considering the whole fact surrounding the genesis of this case which to my understanding started by the action between the 2nd Respondent (USMAN YAIR) and ISHAKU S. YAKUBU AND HAJIYA IYA ADO in suit No. BA/167/10. ISHAKU YAKUBU is related to HAJIYA IYA ADO who also is the wife of Ado Mohammed. Usman Yari in suit No. BA/167/2010 obtained a judgment for the sum of N2, 294, 960 against the two Defendants Ishaku S. Yakubu and Hajiya Iya Ado. The judgment debt was not paid and hence Usman Yari sought for enforcement of the judgment debt. An application was made to the High Court of Bauchi State for attachment of the immovable property of the judgment debtors. (Ishaku S. Yakubu and Hajiya Iya Ado) the order was granted and an identified building was attached. The house attached was later found to belong to Ado Mohammed, the husband of Hajiya Iya Ado. Upon an application by the said Ado Mohammed, the order granted by Hon. Justice Sambo attaching the property was set aside by the Court. It was alleged that another house was identified belonging to the judgment debtors located at No. 9 Adamu Jumba Road GRA Bauchi. Another application by way of Motion Exparte was filed before another High Court. Another order of attachment was secured and hence an alleged attachment and auction sale of the house was carried out. The said property was sold for N13, 000, 000.00. The 2nd Respondent admitted being paid N4, 000, 000.00 in settlement of his judgment debt. After the sale the 3rd and 4th Respondents swung into action, took over possession of the premises and the building and demolished the building. This led to the suit by the 1st Respondent BA/142/2013 before the trial Court leading to this appeal.
It is not in dispute that the 1st Respondent is not a party to the suit between Usman Yari and Ishaku S. Yakubu and Hajiya Iya Ado.
It’s also not disputable that the levy of execution on the property described as No. 9 Adamu Jumab Road GRA Bauchi has not being disputed as the property of the 1st Respondent.
It was not contested that the application that led to the attachment of the house No. 9 Adamu Jumba Road GRA Bauchi was initiated by an Exparte Motion.
That the order was granted on 27/6/2013 and both the order and attachment and Notice of Sale pasted same date. That the said property was auctioned for N13,000,000.00 and the sum of N4,000,000.00 was paid to the judgment creditor the 2nd Respondent instead of the judgment debt of N2, 294, 960.00.
Going through the whole evidence before the Court there is no evidence by the 1st and 2nd Respondent as to what happened to the balance of N9, 000, 000.00 which is the balance of N13, 000, 000.00. Neither did the 1st Respondent who carried out the auction sale ever mentioned nor aver in defence of the amount for which the house was sold. When specifically asked how much he sold the house at the auction he kept mute and did not respond to the question. It was the evidence of PW3 and 4 and the 2nd Respondent that brought to limelight the amount for which the house was disposed and what was paid to the judgment creditor (Usman Yari) (2nd Respondent).
It is evidently clear that the process that gave birth to the order of attachment of the property of the 1st Respondent which is by way of a Motion Exparte is improper, incompetent and void ab initio in law. The decisions in the case of SALEH V MONGUNO (2006) 15 NWLR (Pt. 1001) (supra) is applicable, apt and most relevant to the situation at hand. A look at Exhibit D3A sworn on 17th day of July, 2013 shows that Samuel Nimran Chief Bailiff of the High Court Bauchi pasted the Notice of attachment on the said property on 27th day of June, 2013. In the same vein, Abubakar G. Usman another Bailiff of the High Court vide Exhibit D3 aver that he served the Notice of Public Auction of the property on the same 27th day of June, 2013. The attachment notice was served by 2:30 pm, notice of the auction was served 1:30 pm of the same day. By this it shows that though both notices were served the same date i.e. 27th day of June, 2013, it is amazing to note that the notice of auction sale was served earlier by 1:30 pm while the notice of attachment which is supposed to be served first was served subsequently by 2:30 pm of the same date. Surprisingly both affidavits can be seen to have been sworn to on 16th and 17th July, 2013 respectively. From this again it shows that the date of service was after the affidavit of service was sworn to. In essence the affidavits of service were deposed to on 16th and 17th July, 2013 and the real service was carried out on 27th July, 2013. Both dates contradicts each other. They are at cross purposes. It is unheard of that a process will be served at a later date after the date the affidavit of service was deposed to. That means, that at the time of filing the affidavit of service, the process has not been served. There is element of insincerity on the part of the Bailiff. Do I call it perjury, i.e. telling lie on Oath or an act criminal in nature for all intents and purposes.
In the circumstance of all the foregoing and the undisputed fact that the 1st Respondent notified the Court officer in charge in the name of the Deputy Sherriff and asking him to initiate a proceeding to set aside the order of attachment and sale which was not done, rather a process of attachment and auction sale was initiated and fraudulently obtained and speedily executed shows that the said process is not only irregular, it is in violation of the rules. See the provision of Section 30. Not this alone, it is evident that the Plaintiff had notified the Deputy Sheriff (3rd Respondent) of the abnormality and illegal attachment of his property before the 1st and 2nd Respondent speed up the process of obtaining an order of attachment and sale of the property. A sober reading of Section 34 of the Sheriff and Civil Process Act, put the responsibility of causing a summons to be issued to the contending parties to appear before the Court i.e. the party at whose instance the process of attachment was issued and the party laying claim to the property attached. There is nothing to show that the provision was complied with by the 1st Respondent who for the purposes of the transaction leading to this suit that generated this appeal can be described as “all mighty Deputy Sheriff”.
I cannot therefore but agree with the finding and decision of the learned trial judge that the process leading to the attachment and sale of the property is procedurally incompetent and that the attachment and sale is void. If that is so it is my candid view that the space ship that conveyed the order that led to the attachment and sale of the house, No. 9 Adamu Jumba Road Bauchi GRA Bauchi vide a Motion Exparte should not be allowed to land in the planet of Section 33 and 34 of the Sherriff and Civil Process Act.
The said process that set in motion the attachment and sale of the said house is through the fraudulent and criminally motivated connivance of the 1st and 2nd Respondent in this appeal. As I said before there is nothing to show that the balance of the N9, 000,000.00 out of the proceed of sale of N13, 000,000.00 after giving N4, 000,000.00 to the 2nd Respondent instead of the N2, 294, 960.00 claimed by him has not being accounted for by the 1st Respondent. The law is trite that where money realized vide the process of sale is over and above the judgment debt, the balance of such proceed of sale should be paid to the judgment debtor. I am yet to know who that N9, 000,000.00 was paid to.
Based on all the foregoing reasons I resolved the issues against the Appellant.
In consequence, I have no hesitation in my mind in concluding that this appeal is meritless and should be dismissed.
Appeal dismissed.
In consequence, I hereby direct that the Hon. Chief Judge of Bauchi State should expeditiously cause an investigation to be carried out on the part played by both the 1st and 2nd Respondent in the attachment and sale of the 1st Respondent house which led to the suit leading to this appeal i.e. (The Director of Process) Ayuba Danladi of the High Court of Justice Bauchi) (PW1) and Usman Yari (the judgment creditor) (PW2) with a view of recovering the proceeds of the sale of the said property and if found culpable to be handed over to the law enforcement agents for necessary prosecution.
The 1st and 2nd Appellants may chose to proceed against the 1st and 2nd Respondents so as to recover the amount they expended in the illegal attachment and sale of the said property to them.
Finally, the judgment of the High Court of Justice Bauchi State in Suit No. BA/142/2010 delivered on 20th day of April, 2018 Coram Hon. Justice Mu’azu Abubakar is hereby affirmed.
CROSS APPEAL
The 1st Respondent, Abudulkadir Y. Suleiman in the main appeal, by a notice of cross Appeal dated 29th April, 2019 and filed on the 30th day of April, 2019 and which was deemed as properly filed and served on 17th day of September, 2020 and containing two grounds sought for the following reliefs from this Court against the Respondents:
(1) AN ORDER setting aside the ruling of the lower Court held (sic) on the 20th July, 2016 refusing to admit the following documents thus:
(i) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Lands and Survey.
(ii) Original letter conveying approval of the Plaintiff loan application by the Secretary Federal Government Staff Housing Loans Board.
(iii) Original letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff.
(2) AN ORDER admitting the following documents to wit:
(i) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Lands and Survey.
(ii) Original letter conveying approval of the Plaintiff loan application by the Secretary Federal Government Staff Housing Loans Board.
(iii) Original letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff Counsel.
(3) AN ORDER setting aside the decision of the lower Court regarding the Cross Appellant/Plaintiff’s claim for special damages.
(4) AN ORDER awarding special damages as per the Cross Appellant/Plaintiff’s claim in paragraph 5 of the amended writ of summons and statement of claim dated the 24th March, 2015. Relying on the Record of Appeal in the main appeal, the Cross Appellant incorporated his brief of argument in respect of the Cross Appeal in his brief of argument on the main appeal. The said brief of argument can be found on pages 17-32 of the brief. Therein the Cross Appellant submitted the following issues for the determination of the Cross appeal.
(a) Whether the following documents ought to be admitted or not thus:
(1) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Lands and Survey Bauchi State.
(2) Original letter conveying approval of the Plaintiff’s loan application by the Secretary Federal Government Staff Housing Loan Board.
(3) Original Letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff Counsel.
Ought not to have been admitted by the lower Court (Ground 2)
(b) Whether the amount awarded as special damages by the lower Court is not inadequate (Ground 1).
The Appellant/1st Cross Respondent’s brief of argument is also incorporated in the Appellant’s brief of argument dated 20th day of November, 2019. The said brief was deemed as properly filed and served by the order of this Court granted on the 17th day of September, 2020. In the said brief, the Appellant/Cross Respondent adopted the issues distilled by the Cross Appellant for the determination of the Cross Appeal.
The 3rd Respondent/Cross Respondent brief of argument is also incorporated in the 3rd Respondent brief of argument filed on 16th September, 2020 and deemed as properly filed and served on 17th September, 2020. Therein he adopted issue “B” distilled by the 1st Respondent/Cross Appellant for the determination of this appeal. The said issue is as follow (see pages 14 – 18 of the said brief of argument):
ISSUE B
Whether the amount awarded as special damage by the lower Court is not inadequate (Ground 1)
On behalf of the 2nd Respondent/4th Cross Respondent, a Cross Respondent’s brief dated 22nd June, 2020 was filed on the 2nd July, 2020. Same was deemed as properly filed and served by this Court on 17th day of September, 2020. He also adopted the two issues formulated by the 1st Respondent/Cross Appellant for the determination of the Cross Appeal. The fact leading to the Cross appeal by the 1st Respondent is that the learned trial Court in the cause of trial refused to admit in evidence as Exhibit the aforelisted documents sought to tender by the Defendant/1st Respondent Cross Appellant. Not this alone, the learned trial judge dismissed the Cross Appellant’s claim of N12, 000,000.00 as special damages for his house demolished by the 3rd and 4th Defendants/Cross Respondents and for the property of the tenants in the house in question destroyed and for the economic trees cleared.
For the determination of this cross appeal, the two issues formulated by the 1st Respondent/Cross Appellant will be adopted. More so when all the Cross Respondents have keyed into the issue formulated by the Cross Appellant:
ISSUE ONE
Whether the following documents ought to be admitted or not thus:
(1) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Lands and Survey Bauchi State.
(2) Original letter conveying approval of the Plaintiff’s loan application by the Secretary Federal Government Staff Housing loan Board.
(3) Original Letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff Counsel.
Ought not to have been admitted by the lower Court (Ground 2)
The argument of the learned Counsel representing the cross Appellant is that the aforelisted documents rejected are in their original form. By Section 86 of the Evidence Act, 2011, they are classified as primary documents, hence each of the documents referred to is a primary document.
On issue of private and public document under the law, he contended that a glossory look at the documents in question, reveal that each was addressed to an individual and or person i.e. (2 of the documents were addressed to the Cross Appellant and one was addressed to his Counsel. He added that the documents then remain in the custody of individuals other than with Government officer. By that therefore they are private documents. Relying on Section 103 of the Evidence Act 2011, and considering the documents in issue, one may have the view that they form part of official Act or record of an official body because they carry Government logo. He relied on the cases of STIRLING GEOTECHNICAL (NIG) LTD V GALMAS INTERNATIONAL Ltd AND ANOR (2010) 4 NWLR (Pt. 1184) 361, R. VS TORIDI LAWANI (1959) LLR 7 at 98 where it was held that it is not every document emanating from a public officer that can be admitted as public document under Section 102 of the Evidence Act. He submitted that the documents are not public document in that they would not be accessible for public inspection and use. They are primary private documents as they are not secondary evidence and hence require no certification. He relied on the case of ONWUZUIKE V EDOZIEM (2016) 6 NWLR (Pt. 1508) at page 215 at 219 Ratio 1. He also relied on Section 88 of the Evidence Act which requires that documents shall be proved by primary evidence except those otherwise allowed by law to be proved by secondary evidence. He relied on ONWUZUIKE V EDOZIEM (supra). Further to the foregoing, he relied on the case of THE REGISTERED TRUSTEES OF ABOSSO APOSTOLIC FAITH CHURCH OF JESUS CHRIST V NNA AND ORS (2014) LPELR – 22826 which prescribed the criteria that governs the admissibility of documents in evidence i.e. Its relevance and whether it is admissible in law. He contended that the documents in issue are in compliance with the two foregoing conditions. Not this alone he added that they are pleaded in paragraphs 18, 19, 22, 23 and 24 of the amended statement of claim of the Cross Appellant and they are also relevant because they establishes the interest of the Cross Appellant in the property and hence confers locus standi on the Cross Appellant. Not this alone, it is his argument that the 3rd document which is also an original letter from the Deputy Director Process Bauchi State High Court addressed to the Plaintiff/Cross Appellant dated 3rd day of May, 2013 conveying the Deputy Sheriff’s approval for the Plaintiff to commence his interpleader proceedings, in response to the 3rd party notice given to them by the Cross Appellant through his Counsel. By the foregoing he contended further that it is very important because it goes to show that the purported attachment and auction of the property in question was only cooked up as it shows on one hand that the attachment and auction was conducted on the 27th June, 2013, while the document reveals that by 30th May, 2013 the auction had taken place. He submitted that the documents are admissible in that they are in their original forms and are primary private documents and are admissible under Sections 103 and 88 of the Evidence Act, 2011.
The reaction of the Appellants/Cross Respondents to this issue is that the argument of the Cross Appellant regarding the ruling of the trial Court contained in pages 28 and 29 of Vol. 2 of the Record of Appeal and page 19 para. 4.01 and page 2, paragraph 4.03 of his brief of argument are totally at variance with the position of the Court in the Ruling. He submitted that the Ruling of the Court at pages 28 and 29 is on a Certificate of Occupancy sought to be tendered by the Cross Appellant and objected to by the Appellant but the Court overruled the objection and admitted it. He added that the record of the Court is binding on all parties and cited the cases of MBA Vs NWOSU (2008) 3 NWLR (Pt. 1074) pg. 329 at 332 Ratio 2, AGBAREH V MIMIRAH (2008) 2 NWLR (Pt. 1071) pg. 378 at 385 Ratios 1 & 2. He submitted that document numbers 1, 2 and 3 sought to tender are public documents in private possession but must be certified before they are admitted. He relied on UDUMA VS ARUNSI (2012) NWLR (Pt. 1298), OSAYOMI V GOVERNOR EKITI STATE (2014) ALL FWLR (Pt. 71), IGORI V IGORI (2014) ALL FWLR (Pt. 729) (For all the cases, the reference pages are not provided).
Further, he argued that for the Cross Appellant to succeed, he must show that the lower Court relied on such document rejected in evidence to base its complaint. He urge the Court to hold that the Cross Appellant has failed to show the effect of admission and non admission of the documents to his case. Despite the rejection, the Court still based his judgment on the documents.
On behalf of the Bauchi State Deputy Chief Sheriff, who was the 1st Defendant in the suit before the trial Court, it is submitted that the decision of the trial Court rejecting the document in context as Exhibit is most appropriate and unassailable and that it is straight forward and on a firma terra. He argued that the documents are public document in private possession and which must be certified before tendering or must be tendered through the maker. Referring to the Record of Appeal, he contended that parties are bound by the record of proceedings compiled. He referred to TEXACO PANAMA V SHELL PETROLEUM (2002) 94 LRNCN 157. He contended that the documents listed as 1, 2 and 3 are public documents and that they ought to be certification on them to make them admissible or that they should be tendered through the maker. He referred to the cases of ONWUZUIKE V EDOZIEM (2016) 76, UDUMA V ARUNSI (2012) NWLR (Pt. 1298). He also referred to Section 102 of the Evidence Act and contended that the documents Nos. 1, 2 and 3 forms part of the official Acts and Records of official Acts and thus a public document which must be certified before it can be received in evidence. Any party relying on secondary evidence of a public document must produce certified true copy and no other copy thereof is admissible. He relied on GOODWILL AND TRUST INVESTMENT LTD V WITT & BUSH LTD (2011) 7 NWLR, 500, KERRI V EZUNKA BROS, ENT. LTD (2013) LPELR – 12399. On the definition of a certified true copy he urge the Court to resolve the issue against the 1st Respondent/Cross Appellant and in favour of the Cross Respondent.
On behalf of the 3rd Respondent/Cross Respondent UMARU YARI, no argument is tendered in respect of this issue but only on issue “B”. Hence the 3rd Respondent/Cross Respondent did not contend the arguments of the 1st Respondent Cross Appellant.
In consideration of the foregoing arguments for and against the admissibility of the documents in contention as listed in the issue under consideration, the question I consider germane is whether or not the learned trial judge was right in rejecting the documents as Exhibits. In rejecting the documents the learned trial judge relied on Sections 102, 103 and 104 of the Evidence Act on certification of public documents and the document according to the learned trial judge being public documents they ought to be certified before they can be admitted as evidence.
The simple question is whether or not the documents are public or private documents.
For better appreciation of the aforementioned provisions of the Evidence Act, I herein under reproduce them thus:
Sections 102, 103 and 104 of the Evidence Act.
Section 102:-
The following documents are public documents:
(a) Documents forming the official act or record of the official act of:
(i) The sovereign authority
(ii) Official bodies and tribunals, or
(iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public record kept in Nigeria of private documents.
Section 103:-
All documents other than public documents are private documents.
Section 104:-
(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection 1 of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section.
For the admissibility of document falling within the aforementioned provisions of the Evidence Act, they must be certified. See the following cases; ANAGBADO V FARUK (2018) LPELR – 44909; KALU IGWU UDUMA V PRNCE ARUMA ARUNSI AND 14 ORS (2010) LPELR OR (2012) 7 NWLR (Pt. 1298) p. 55, STIRLING GEOTECHNICAL (NIG) LTD V GALMAS INTERNATIONAL LTD AND ANOR (2010) 4 NWLR (Pt. 1184) 361 where this Court described public document as follows per Aboki JCA as he then was now Justice of the Supreme Court.
“A public document is a document made for the purpose of the public making use of it, especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for the good of the public and always accessible for public inspection and use, especially by all those having something to do with it.”
One may ask the question, what is a public document. In Stroud’s Judicial Dictionary, a public document is described as that made for the purpose of the public making use of it and one of which the public have access.
In Halsbury’s Law of English 3rd Edition Vol. 12 page 813, “Public document has been defined to mean a document made by a public officer for the purpose of public making used of it and being able to refer to it”. For the foregoing definitions and in my view, for a document to be designated as a public document and admissible in evidence as such it ought to have been brought into existence for the purpose of the public and be available for public inspection. For the foregoing the documents in issue i.e.
(1) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Lands and Survey Bauchi State.
(2) Original letter conveying approval of the Plaintiff’s loan application by the Secretary Federal Government Staff Housing loan Board.
(3) Original Letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff Counsel
were issued by public officers but they are issued for the private and personal use of the Cross Appellant ABDULKADIR Y. SULEIMAN and no other. The letter of devolution of interest was addressed to him and so the letter conveying approval and that written by the Deputy Sheriff to the Cross Appellant who was the Plaintiff at the trial Court. He is the only one that can take benefit of the document and against the general public. The Cross Appellant cannot be said to be a public officer when those documents were created and issued to him. Having been so issued, though by a public officer they have ceased to be a public document but private documents. For the foregoing, it is my ardent view that the three documents are not public documents but private documents and could be tendered by the Cross Appellant and admitted as Exhibit. See ONIMISI UKANA V COMMISSIONER OF POLICE (1995) 8 NWLR (Pt. 416) 705 at pg. 717-719. It is on record, that the documents sought to be tendered by the Plaintiff/Appellant are in their original form. Original documents are the most that gladdens the law for admissibility. No document can rank higher than the original tendered for admissibility. The conclusion of the learned trial judge rejecting the documents as exhibit is erroneous and should not be allowed to stand. I accordingly set aside the Ruling by the trial Court delivered on 20th day of July 2016 refusing to admit the following documents as Exhibits. They shall be marked as Exhibits A, B, C respectively;
(1) Original letter of devolution of interest addressed to the Plaintiff by the Honourable Commissioner Ministry of Lands and Survey Bauchi State.
(2) Original letter conveying approval of the Plaintiff’s loan application by the Secretary Federal Government Staff Housing loan Board.
(3) Original Letter from the Deputy Director Process Bauchi State High Court written to the Plaintiff Counsel.
On that note, this issue is resolved in favour of the Cross Appellant and against the Cross Respondents.
ISSUE B
Whether the amount awarded as special damages by the lower Court is not inadequate.
I have carefully read the contentions of respective Counsel on this issue, but the one that struck my mind is the contention of the learned Deputy Director, Bauchi State Ministry of Justice, Aliyu H. Umar Esq. to the effect that the allegation complained off by the Cross Appellant is non existent. That is to say that the learned trial judge did not grant the Cross Appellant any special damages and rather that the claim to special damages was refused and dismissed.
In the same vein, the learned Counsel representing the 3rd Respondent Cross Respondent, D. M. Abejeme Esq. refuted the complaint and argued that the trial Court did not grant any special damages talk more of whether or not it is adequate.
The Appellant/1st Cross Respondent also toed this line of argument that the trial Court did not award any special damages to the Cross Appellant hence the issue of complaint of its adequacy or otherwise also does not arise.
In the light of the foregoing, an adjudicator should ideally check whether or not the learned trial judge granted any special damages to the 1st Respondent Cross Appellant. The determination of this question would determine whether or not the complaint of adequacy or otherwise of the said award would be considered. This line of argument by the Respondents in nature is like an objection to the competence of the ground of appeal in the main. In other to determine this challenge by the Respondent to the competence of the issue, the judgment by the trial Court has to be visited.
The learned trial judge in his wisdom concluded as follows in the judgment delivered on 20th day of April, 2018 appealed and cross appealed against. (See pages 395-396 of the Record of Appeal) thus:
“With respect to the Plaintiff admission under cross examination that the situation on his witness statement was not made by him, the statement is hereby discountenanced and expunged from the record. Arising from the findings so far made, judgment is hereby entered as follows:
(1) AN ORDER is hereby made setting aside the auction sale of the property in dispute lying and situate at No. 9 Adamu Jumba Road, GRA Bauchi, Bauchi State covered by a Certificate of Occupancy No. NE/397.
(2) N1,000,000.00 damages against the defaulters.
(3) N350,000.00 as professional fees and cost of this action.
(4) Prayer No. 2 to compel the Deputy Sheriff to initiate interpleader proceedings fails and is accordingly dismissed.
On the claim for special damages, although it is in evidence that the property in dispute was demolished however, the value of N12,000,000.00 was not strictly proved as agreed by law, and I cannot grant the same prayer as it would amount to speculation which Courts are not open to. In the case of MAZI AUGUSTINE AKAHIE V SISTER MARY OCHULOR (2015) LPELR 24552. Special damages of N800,000.00 and N100,000.00 for the property of the tenants in the house in dispute that was destroyed and for the economic trees cleared, no evidence was given on these and are accordingly dismissed.”
There is nothing from the foregoing suggesting that the Court ever granted any special damages to the Cross Appellant having regard to his claim in the suit before the trial Court.
On the N12,000,000.00 claimed as special damage, the learned trial judge concluded that the Plaintiff/Cross Appellant did not prove the special damages of N12,000,000.00 claimed and that the Court cannot grant the claim as it would amount to speculation which the Courts are not open to. That is the conclusion of the Court. No order of striking out or dismissal was made. But on the claim for N100,000.00 as special damages for the property of the tenants in the house in issue and the economic trees cleared, the trial Court concluded that there is no evidence given and hence dismissed the claim.
Therefore where the Court has refused the claim to special damages of N12,000,000.00 for lack of proof without any more, the ground of appeal on the adequacy or otherwise of special damages not awarded would be unnecessary and unwarranted. Therefore the issue:-
“Whether the amount awarded as special damages by the lower Court is not inadequate”.
is incompetent and so also the ground of appeal which gave birth to it. In consequence, the argument of the respective Respondent/Cross Respondent on the competence of the issue is sustained. The issue “B” and ground one of the Cross Appeal are both incompetent and accordingly struck out.
In all, the Cross appeal succeed in part and fail in part. It is allowed on the ground of the Ruling of the Court delivered on the 20th day of July 2016. On the other hand the Cross Appeal is struck out on the ground challenging the adequacy or otherwise of the special damages.
There shall be no order for cost.
TANI YUSUF HASSAN, J.C.A.: I read in draft, the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I am in agreement with the reasoning and conclusion reached therein.
BOLOUKUROMO MOSES UGO, J.C.A.: I had earlier read in draft the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., in both the main appeal and cross-appeal and I am in agreement with his reasoning and conclusion in both appeals. I have nothing useful to add. I abide his lordship’s lead judgment including the order as to costs.
Appearances:
M. S. Aliyu, Esq. For Appellant(s)
I.S. Salman, Esq. – for 1st Respondent/Cross Appellant
U. I. Wunti, Esq. – for 3rd Respondent and
A. H. Umar, Esq. Deputy Director MOJ – for 2nd and 4th Respondents For Respondent(s)
