SOLAR CONSTRUCTION SERVICES LIMITED v. THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY & ORS (2018)

SOLAR CONSTRUCTION SERVICES LIMITED v. THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY & ORS

(2018)LCN/12304(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 18th day of December, 2018

CA/A/417/2014

RATIO

COURT AND PROCEDURE: WHEN INSTRUMENT OF GRANT OF TITLE IS PRODUCED

“That when instrument of grant of title is produced, the Court is to inquire into a number questions including whether the document is genuine and valid, whether the documents have been duly executed, stamped and registered, whether the grantor had the authority and capacity to make the grant, whether the grantor had on fact what it purported to grant and whether it had the effect claimed by the holder of the document. He relied on ARIJE Vs ARIJE (2011) 13 NWLR (Pt. 1264) 263 at 290; ENILOLOBO Vs. ADEGBESAN (2001) 2 NWLR (Pt. 698) 611.” PER PETER OLABISI IGE, J.C.A.

EVIDENCE: WHERE AFFIDAVIT EVIDENCE REMAINS UNCHALLENGED

“That where affidavit evidence remains unchallenged, uncontradicted and uncontroverted as in the instant case, it is deemed admitted, undisputed and the Court is under obligation to accept it as the truth. He relied on 3 IBWA Vs. IMANO NIG. LTD & ANOR. (2001) FWLR (Pt. 440) 421 at 443. That the burden of proof in civil cases is discharged pursuant to Section 134 of the Evidence Act, 2011 by preponderance of evidence.” PER PETER OLABISI IGE, J.C.A.

JUSTICES

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria

Between

SOLAR CONSTRUCTION SERVICES LTD Appellant(s)

AND

THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY & ORS Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):

This appeal is against the judgment of the High Court of the Federal Capital Territory delivered by Hon. Justice U. A. OGAKWU on 28th January, 2014, dismissing the suit of the Appellants as plaintiffs at the lower Court.

The plaintiffs had approached the said Court vide their Writ of Summons dated 6th September, 2006 and filed on 7th September, 2006, claiming against the Respondents the following reliefs: –

(a) A declaration that the purported revocation of the plaintiff’s Right of occupancy No. MISC 35190 (now MISC 55355) in respect of plot 1 521 located at Cadastral Zone A03 within Garki is null and void.

(b) A declaration that the Right of Occupancy No. MISC 351 90 (now MISC 55355) in respect of Plot 1

(d) An Order of perpetual injunction restraining the defendants by themselves, their servants, agents or otherwise howsoever from entering the plaintiff’s said Plot or interfering with the plaintiff’s possession, occupation and enjoyment of the aforesaid plot.

Pleadings were duly exchanged and the matter proceeded to trial. After the addresses of learned counsel to the parties the learned trial Judge delivered a considered judgment on 28th January, 2014 and found against the appellant as follows –

I have found in the course of this judgment that the plaintiff has not discharged the evidential burden of establishing that it ever had a right of occupancy over the disputed land. Furthermore, there is nothing to show that the plaintiff’s right of occupancy, which on any event it did not prove that it had, was revoked in violation of the stipulations of the land use Act. Accordingly, the plaintiff is not entitled to this declaration. Accordingly, the plaintiff is not entitled to this declaration.

The plaintiff also claims a declaration that its right of occupancy is valid and subsisting and also an order for the restoration of its said right of occupancy. I have examined the plaintiff’s root of title, holding that the evidence adduced does not establish the plaintiff’s title over the land in dispute. The evidence before the Court does not preponderate in favour of the plaintiff so as to entitle it to the declaration and order sought. The evidence adduced by the plaintiff is therefore unsatisfactory; UKAEGBU Vs. NWOLOLO (2009) 3 NWLR (Pt. 1127) 194 at 230 B – D and cannot ground a grant of this declaration and order.

The plaintiff further claims an order of perpetual injunction restraining the Defendants by themselves, their servants, agents or otherwise howsoever, from entering the land in dispute or interfering with the plaintiff’s possession, occupation and enjoyment of the land in dispute. The law is settled that an order of perpetual injunction in view of its nature of finality is only granted to protect a plaintiff’s established right: ADENIRAN Vs. ALAO (1992) 2 NWLR (Pt. 223) 350 at 372 and BIYO Vs. AKU (1996) 1 NWLR (Pt. 422) 1 at 34. The plaintiff having failed to establish that it has a valid and subsisting right of occupancy over the land in dispute or any right to the restoration of any right of occupancy in its favour is not entitled to any order of perpetual injunction. The relief for perpetual injunction therefore fails. See GLOBE FISHING INDUSTRIES LTD Vs. COKER (1990) 7 NLWR (Pt. 162) 265 at 293 and UBA PLC Vs. OKEKE (2004) 7 NWLR (Pt. 872) 393 at 412G – 413B.

In a summation, from the totally of the foregoing the issue for determination is resolved against the plaintiff. The plaintiff has failed to prove its case. It is consequently not entitled to the grant of any of the reliefs claimed. The plaintiff’s action fails in its entirety and it is hereby dismissed.”

The Appellant was aggrieved by the judgment and has now vive his Notice of Appeal dated 28th March, 2014 and filed on 31st March, 2014 appealed to this Court on eight grounds which without their particulars are as follows: –

GROUND ONE

The learned trial Judge erred in law when he held that the plaintiff has failed to prove its case and thereby occasioned a miscarriage of justice.

GROUND TWO

The learned trial Judge misdirected himself in law when he held thus:

“There is therefore no credible evidence on which I am hold that Plot 1521 Cadastral Zone A03 of Gora Nigeria Limited in Exhibit Fl is different from Plot 1521 Cadastral Zone A03 of the plaintiff in Exhibit C.”

And thereby occasioned a miscarriage of justice

GROUND THREE

The learned trial Judge misdirected himself in law when he held thus:

“There is nothing to show that the plaintiff’s Right of Occupancy which in any event it did not prove that it had, was revoked in violation of the stipulations of the Land use Act. Accordingly, the plaintiff is not entitled to this declaration.”

GROUND FOUR

The learned trial Judge misdirected himself in law when he held thus:

“It therefore seems to me that the plaintiff cannot be heard to contend that titled is not in issue in the action. The Conflating of the declaration that its Right of Occupancy is valid and subsisting and the denial of the Defendants that the land was never allocated to the plaintiff put the issue of title to the land very firmly on the front burner.”

GROUND FIVE

The learned trial Judge erred in law when he failed to invoke Section 167(d) of the Evidence Act 2011 against the 1st and 2nd Respondents.

GROUND SIX

The learned trial Judge misdirected himself in law when he held thus:

“…….the cases of OYEWOLE Vs. AKANDE (SUPRA) and AGWAPAI BO Vs NAKANDE (SUPRA) do not support the plaintiff’s submission that the Court can make use of the C of O as front loaded.”

And thereby occasioned a miscarriage of justice.

GROUND SEVEN

The learned trial judge failed to evaluate the evidence properly.

GROUND EIGHT

The judgment of the learned trial judge is against the weight of evidence and thereby occasioned a miscarriage of justice

The Appellant’s Brief of Argument dated 17th, 2014 was filed on 4th August, 2014. The 1st and 2nd Respondents’ Brief of Argument was dated and filed on 20th October, 2014. It was deemed filed on 9th June, 2015. The 3rd Respondent’s Brief of Argument dated 9th February, 2015 was filed same date and it was deemed filed on 9th June, 2015. The Appellant’s Reply Brief is dated 6th March, 2015 and filed on the same date. It was deemed filed on 9th June, 2015.

The appeal was heard on 18th October, 2018 when the learned counsel to the parties adopted their respective Briefs of argument.

Five issues for determination were raised by the Appellant’s learned counsel A. O Igeh, Esq., who settled the Brief of argument. They are as follows:-

“(a) Whether the learned trial judge rightly held that the Appellant failed to prove its case.

(b) Whether the learned trial judge was right when he held thus:

“there is therefore no credible evidence on which I can hold that plot 1521 Cadastral Zone A03 of Gora Nigeria Limited on Exhibit Fl is different from plot 1521 Cadastral Zone A03 of the plaintiff in Exhibit C.”

(a) Whether the learned trial judge rightly refused to invoke Section 167(d) of the Evidence Act, 2011 (as amended) against the 1st and 2nd respondents when they withheld and failed to produce the Appellant’s certificate of Occupancy is in their custody.

(b) Whether the learned trial judge was right when he refused to make use of a document in its file, the Appellant’s certificate of occupancy front loaded by the 1st and 2nd Respondents in their statement of defence.

(c) Whether the learned trial judge properly evaluated the evidence and whether the judgment is not against the weight of evidence having regard to the circumstance of this case.”

The learned counsel to the 1st and 2nd Respondents EMMANUEL ESENE ESQ., nominated two issues for determination as follows: –

(1) Whether the learned trial judge rightly held that the Appellant failed to prove its case.

(2) Whether the learned trial judge properly evaluated the evidence having regard to the circumstance of this case.

The learned counsel to the 3rd Respondent SOLOMON E. UMOH, SAN adopted the issues for determination as formulated by the Appellant.

I am of the solemn view that the appeal can be determined on the five issues formulated by the Appellant. They will be treated anon.

ISSUE 1

Whether the learned trial judge rightly held that the Appellant failed to prove its case. (Grounds 1, 3 and 4)

The learned counsel to the Appellant submits that the Appellant’s claim is not a declaration of title to land but declaration for unlawful revocation.

That title is not an issue before the trial Court and not material to the determination of the Suit having regard to the pleadings and the evidence on record particularly the unchallenged affidavit evidence of the Appellant and the documentary exhibits particularly Exhibits C and E.

That what is required of the Appellant to succeed in its claim in the circumstance of the state of the pleadings and the issues joined is to prove on preponderance of evidence that its title to plot 1521, the plot in dispute was revoked in contravention of Section 28 Land Use Act.

That the finding of the learned trial judge that the Appellant’s title to the plot on dispute has been revoked is in tandem with the content of Exhibit E, the legal search report.

That the subsequent finding of the learned trial judge with regards to the Appellant’s title and revocation is not correct having regard to the evidence on record and his earlier findings in his ruling dated 16th July 2008.

That Exhibit E even though not an instrument of title is an evidence showing that the title to plot 1521, the plot in dispute is vested in the Appellant.

That where affidavit evidence remains unchallenged, uncontradicted and uncontroverted as in the instant case, it is deemed admitted, undisputed and the Court is under obligation to accept it as the truth. He relied on 3 IBWA Vs. IMANO NIG. LTD & ANOR. (2001) FWLR (Pt. 440) 421 at 443.

That the burden of proof in civil cases is discharged pursuant to Section 134 of the Evidence Act, 2011 by preponderance of evidence. That the evidential burden shifted on the Respondents when the Appellant demonstrated on the preponderance of evidence that its plot 1521 is different from the plot purportedly allocated to Gora Nig. Ltd and its title to the plot was revoked without any breach of the terms of grant and without any notice of revocation in contravention of the land Use Act. That no further burden (evidential burden) is cast upon the appellant in the circumstance of the respondent’s failure to lead evidence in rebuttal and discharge the evidential burden that shifted on them. He relied on (1) KATE ENTERPRISES LTD Vs. DAEWOO NIG. LTD (1985) 7 SC; (2) CHINDO WORLD WIDE LTD Vs. TOTAL NIG PLC. (2002) FWLR (Pt. 115) 750 ot 769.

That it is settled law that once the power of revocotion is not exercised within the limit of Section 28 of the Land Use Act, the same will be rendered ineffective. He relied on OSHO & ORS Vs. FOREIGN FINANCE CO., & ORs (1991) 4 NWLR (Pt. 184) 157 at 187; (2) C.S.S BOOKSHOPS LTD Vs. R.T.M.C.R.S (2006) 11 NWLR (Pt. 992) S.C 530 at 538, 539 and 54

That the Appellant’s plot 1521 which was allegedly revoked on ground of overriding public interest without notice of revocation and stating the specific Public purpose was re-allocated to 3rd Respondent’s Company. Assets Management & Securities Service Ltd, a private limited liability company.

That the appellant was not divested of its title to the plot in dispute before it was granted to the 3rd Respondent’s company. He relied on (1) LSDPC Vs. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (Pt. 50) 43. (2) IBRAHIM Vs. MOHAMMED (2003) 6 NWLR (Pt. 817) 615 at 644. (3) NIGERIAN ENGINEERING WORKS LIMITED Vs. DENAP LIMITED (2001) 18 NWLR (Pt. 746) 720 at 757.

He urged this Court to resolve this issue in favour of the Appellant.

In response, learned counsel to the 1st and 2nd Respondents submits that a look on to the pleadings will leave no reasonable man in doubt that the Suit of the Appellant could not have been properly determined without a proper consideration of the issues of title to the plot in dispute.

That it is settled law that the burden of proof in civil cases is on the Appellant. That the Appellant has the evidential burden of establishing its case and it must succeed on the strength of its case and not on the weakness or absence of a defence. He cited (1) AKINDURO Vs. ALAYA 2007 1 NWLR (PT. 1057) 312. (2) A.C.B PLC. Vs. EMOSTRADE LTD (2002) 8 NWLR (Pt. 770) pg 501 at 515. (3) MURANA ELEMO & ORS Vs. FASASI ORUOLAbE & ORS (1968) NMLR 359.

That a party that desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exists.

That when instrument of grant of title is produced, the Court is to inquire into a number questions including whether the document is genuine and valid, whether the documents have been duly executed, stamped and registered, whether the grantor had the authority and capacity to make the grant, whether the grantor had on fact what it purported to grant and whether it had the effect claimed by the holder of the document. He relied on ARIJE Vs ARIJE (2011) 13 NWLR (Pt. 1264) 263 at 290; ENILOLOBO Vs. ADEGBESAN (2001) 2 NWLR (Pt. 698) 611.

That a mere production of documents of this nature as done by the Appellant does not confirm title.

That the 1st and 2nd Respondents have maintained vehemently that it never allocated plot 1521 to the Appellant and therefore has not by conduct or otherwise shown that it honoured any document of title as emanating from their records in respect of plot 1521 to the Appellant.

That the ruling of 16th July, 2008 being an interlocutory one, did not in any way show that the said plot was allocated to the Appellant. That a live issue before the trial Court could not have been decided at the stage of interlocutory application.

That the Appellant was not entitled to any notice of revocation by the 1st and 2nd Respondents, since plot 1521 was never allocated to the Appellant.

That the evidence before the Court shows clearly that the plot was re-allocated to the 3rd Respondent and Gora Nigeria Limited was duly served with a Notice of Revocation.

He urged this Court to discountenance the Appellant’s submission and resolve this issue in its favour.

In his own response, 3rd Respondent submits that a careful perusal of the reliefs sought by the Appellant vis-a-vis the defence of Respondents at the trial Court particularly that of the 1st and 2nd Respondents wherein they denied ever granting title to the Appellant over the land in dispute will reveal in no uncertain terms that title is clearly in issue between the parties at the lower Court.

That for the Appellant’s claim to succeed, the Appellant has duty to prove that he has title to the land in dispute. That it is trite law that in any action where two parties make adverse claim over land as in the instant case, the plaintiff has the burden of proving his title over the land in dispute. He relied on (1) SHASI Vs. SMITH (2010) ALL FWLR (Pt. 413) pg 1243 Paragraphs C – D.(2) ASIEGBU Vs. OLIBIE (2010) ALL FWLR (Pt. 516) pg 553 – 554 paragraphs H – A. (3) AGBOOLA Vs. UBA PLC (2011) 11 NWLR (Pt. 1258) pg 375.

That the Appellant has woefully failed to discharge the onus of proof placed on it by law. That the Appellant failed to tender on evidence the purported Right of Occupancy it is relying on as the basis of this action and the reliefs it is seeking. He relied on (1) OMOTAYO Vs. C.S.A (2010) 16 NWLR (Pt. 1218) pg 1 at paragraph A. (2) ADELAJA Vs. ALADE (1999) 6 NWLR (Pt. 608) 544. (3) JIAZA Vs. BAMIGBOSE (1999) 7 NWLR (Pt. 610) 182.

That where the appellant failed to discharge the onus placed on it by law as in the instant appeal, there will be no need to consider the defence of the Respondents. He relied on (1) POLO Vs. OJOR (2003) 3 NWLR (Pt. 801) PG. 344 at 354 paragraphs E – F; paragraphs C b (2) ORLU Vs. GOGO-ABITE (SUPRA) at 321 – 322, paragraphs H – B.

That assuming though not conceding that the letter of allotment tendered by the Appellant constitute title document, that it is trite law that the production of title document as means of proving title to land creates an obligation on the Court to inquire into among other things whether the document is genuine and authentic, whether it has been duly executed, skimped and registered, whether it had the effect claimed by the holder of the instrument. He citedENILOLOBO Vs. ADEGBESAN (2001) 11 NWLR (Pt. 698) pg 611 at 620, paragraphs B- C. (2) OYENIYI Vs. AKINKUGBE (2010) 4 NWLR (Pt. 1184) pg 265 at page 284, paragraph E, 284 – 385; paragraphs, H – D.

That the 1st and 2nd Respondents in their pleadings and evidence denied ever allotting or granting the land in issue to the Appellant.

That where the authenticity of a document is challenged and or denied as in the case, the person relying on the document is duty bound to call the maker of the document to give evidence in support of the document. He relied onG CHITEX IND. LTD Vs. O.B.I (NIG) LTD (2005) 14 NWLR (Pt. 945) pg 392 at 411 paragraphs D – G.

That the 1st and 2nd Respondents apart from denying ever granting the land in dispute to the Appellant, stated that the land was earlier granted to Gora Nigeria Limited and that the Right of occupancy to the said organization was revoked for overriding public interest before granting the 3rd Respondent title over same land.

That the 1st and 2nd Respondents in proof of these facts tendered the certificate of occupancy granted by it to the said Gora Nigeria Limited in evidence and same was marked as Exhibit F it is apparent, that the right of Gora Nigeria Limited over the property in dispute started to run from 26th May 2001.

That the trial judge upon the determination of an interlocutory application should not go into the merits of the case. He cited ODUNTAN Vs. GENERAL OIL LTD (1995) 4 NWLR (Pt. 3877) 1 at 12H -13A.

That the reliance of the Appellants in Exhibits “E” and “C’ is erroneous as none of the said documents is a title document.

He urged this Court to resolve this issue in favour of the 3rd respondent.

I observe that the Appellant’s Reply Brief is a repetition of the appellant’s Brief of argument.

Pursuant to Order 19 Rule 5(1) of the Court of Appeal Rules 2016, on Appellant?s Reply Brief of argument is not on avenue or getaway to a re-argument of the arguments contained in the main Brief of the Appellant. An Appellant Reply must be targeted at replying to new points particularly on law as may be raised in a Respondent?s brief of argument.

It will amount to an abuse of Court Process for an appellant to indulge in rearguing or readjusting the submissions in the main Brief. See HON. JAMES ABIODUN FALEKE vs. INEC & ORS (2016) 18 NWLR (Pt. 1543) 61 at 115.

Appellant’s Reply Brief in respect of 1st, 2nd and 3rd Respondents Brief is hereby discountenanced.

Now parties in an action have the burden of calling credible and admissible oral and documentary evidence on support of their pleadings. Trial Court will thereafter assess and evaluate the pieces of evidence led along with the various submissions of learned counsel to the parties. This must be done in accordance with the guidelines laid down in the case of MOGAJI Vs. ODOFIN (1978) 4 SC 91 and other settled principles of law relevant and applicable to the particular case. I call in aid the case of ALIYU BALOGUN Vs. ALHAJI SHITU LABIRAN (1988) 3 NWLR (Pt. 80) 66 at 84 per late Legal Icon OPUTA, J5C of blessed memory who had this to say:

“Also when pleadings have been filed the onus is on the plaintiff to prove the averments in his statement of claim and on Defendant to prove what he averred in his statement of Defence, proof by preponderance of evidence simply means that the evidence adduced by the plaintiff should be put on one side of the Scale mentioned in ODOFIN & ORS Vs. MOGAJI & ORS (1978) 1 LRN 212 and the evidence adduced by the Defendant put on the other side of that Scale and weighed together to see which side preponderates.”

Thus where it is shown that the lower Court confirmed and complied with all necessary legal principles and properly evaluated the evidence before it, the Appellate Court has no business interfering with the findings of the trial Court unless the findings made by trial Court are perverse. See ALHAJI MOHAMMED BUHARI AWODI & ANOR Vs. MALLAM SALIU AJAGBE (2015) 3 NWLR (Pt. 1447) 575 at 599 G – H per OKORO, JSC who said –

“Moreover, it is trite law that an appellate Court would be slow to disturb or reverse findings of fact made by the trial Court unless such findings are shown to be perverse having been based on inadmissible evidence or relevant and admissible evidence having been rejected which in either case occasioned a miscarriage of justice or that its findings were perverse. See ONWUGBUFOR Vs. OKOYE (1996) 1 NWLR (Pt. 424) 252; ADIMORA Vs. AJUFO (1988) 3 NWLR (Pt. 80); OKAFOR Vs. INGO (1984) 1 SCNLR 48; EBBA Vs. OGODO (1984) 1 SCNLR 372.”

The onus is on the Appellant to prove his title to the plot in accordance with Sections 133 – 134 of the Evidence Act 2011.

The learned trial judge rightly held: –

“I have found on the course of this judgment that the plaintiff has not discharged the evidential burden of establishing that it ever had a right of occupancy over the disputed land. Furthermore, there is nothing to show that the plaintiff’s right of occupancy which in any event it did not prove that it had, was revoked on violation of the stipulations of the Land Use Act. Accordingly, the plaintiff is not entitled to this declaration.”

Issue 1 is resolved against the Appellant.

ISSUE TWO

“Whether the learned trial Judge was right when he held thus:

“There is therefore no credible evidence on which I can hold that plot 1521 Cadastral Zone A03 of Gora Nigeria Ltd in Exhibit Fl is different from plot 1521 Cadastral Zone A03 of the plaintiff in Exhibit C (Ground 2).”

Learned counsel to the Appellant submits that there is no admissible evidence adduced by the respondents to compete with that of the appellant to the existence of its title, the unlawful revocation of its title and the distinctiveness of its plot from the plot allegedly allocated to Gora Nig. Ltd.

That a Court is entitled to believe and act on the affidavit evidence before it in the absence of a contrary deposition. He cited AJEWOLE Vs. ADETIMO (1996) 2 NWLR (Pt. 431) 391.

That the Appellant’s evidence showed that plot 1521 allegedly granted to Gora Nigeria Ltd is different from the Appellant’s plot 1521 which evidence stands unchallenged, uncontradicted and uncontroverted.

He urged this Court to resolve this issue in favour of the Appellant.

In response, learned counsel to the 1st and 2nd Respondents submits that they have always maintained that no allocation of plot 1521 was made to the appellant. And that the Appellant did not in any way rebut this assertion.

That the Appellant failed to tender the certificate of occupancy wherein the alleged differences are contained. That the production of the said document in the Court would have enabled the trial Court to see the alleged distinctions upon inspection.

He urged this Court to discountenance the testimony of DW1 for being inadmissible abinitio.

In his own response, learned counsel to the 3rd Respondent submits that the onus is on the plaintiff to establish with certainty the identity of the land to which his claim relates. He relied on OGUN Vs. AKINYELU (2005) ALL FWLR (Pt. 243) pg 621 paragraphs 11 D – F.

That the appellant has failed to file and tender a survey plan and or lead credible evidence describing the land having regards to the circumstances of this case.

He urged this Court to resolve this issue in favour of the 3rd Respondent and affirm the decision of the learned trial Judge.

Now an appeal has been adjudged to be an invitation to an Appellate Court to review the decision or judgment of a lower Court and find out whether upon the oral evidence before the lower Court and the applicable law, the lower Court was right on its judgment or decision appealed against. See LAWRENCE ADEBOLA OREDOYIN & ORS Vs. KALA AROWOLO & ORS (1989) 4 NWLR (Pt. 114) 172 at 211 E – G per Oputa, JSC who said: –

“Appeal to the Court of Appeal should be a complaint against the decision of the trial Court. We use the expression “decision” and “judgment” so often that we scarcely ask ourselves what these expressions really mean. An appeal is an invitation to a Higher Court to review the decision of a lower Court to find out whether on proper consideration of the facts placed before it and the applicable law the Court arrived at a correct decision.”

It is not enough for the Appellant to find fault with the decision of the lower Court, the Appellant must go further to show that the judgment is perverse and has led to miscarriage of justice. See the case of SENATOR IYIOLA OMISORE & ANOR. Vs. OGBENI RAUF ADESOJI AREGBESOLA & ORS. (2015) 15 NWLR (Pt. 1482) 205 at 309 B – C where M. b Mohammed JSC said: –

“Furthermore, the appellants are duty bound not only to establish a lapse in the decision they appeal from, they must go the extra mile of establishing the injustice the lapse occasioned.” See SOLEH BONEH OVERSEAS (NIG) LTD Vs. AYODELE (1989) 1 NWLR (Pt. 99) 549 and KATE ENTERPRISES LTD Vs. DAEWOO NIG. LTD (1985) 2 NWLR (Pt. 5) 116.

The grouse of the Appellant is that the learned trial Judge was wrong in holding that plot 1521 Cadastral Zone AO3 of Gora Nigeria Ltd in Exhibit F1 is not different from plot 1521 Cadastral Zone AO3 of the plaintiff in Exhibit C.

The learned trial Judge rightly held thus:

“… The contention of the plaintiff that the land is different is promised on the land having different properly beacon number as testified to by the DW1. The plaintiffs C of O is not in evidence and the cases of OYEWOLE Vs. AKANDE (SUPRA) and AGWARANGBO Vs. NAKANDE (SUPRA) do not support the plaintiff’s submission that the Court can make use of the C of O as frontloaded.”

Indeed in the OYEWOLE Vs. AKANDE case, both the Court of Appeal and the Supreme Court disapproved the trial judge having used an affidavit which was in the case file to arrive at the conclusion that the defence was contradictory. Be that as it may, it is instructive to note that even in the light of the testimony as to different beacon numbers, the DW1 remained resolute that the plaintiff’s purported C of O was not given by the 1st and 2nd Defendants and that the land in dispute was granted to Goral Nigeria Limited. In any event, given the fact that the plaintiff’s C of O is not on evidence there is no way I can accredit the Oral testimony of the DW1 as to the difference in the property beacon numbers since the property beacon numbers are contained in a document. The acceptable proof will be the document itself produced for inspection by the Court. Put differently, oral testimony cannot be used to state the contents of a document.

This is so, because documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of man as they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. See OGUNDELE Vs. AGIRI (2009) 18 NWLR (Pt. 1173) 219 at 239 A – D and AIKI Vs. IDOWU (2006) 9 NWLR (Pt. 984) 47 at 65.

There is therefore no credible evidence on which I can hold that the plot 1521 Cadastral Zone A03 of Gora Nigeria Limited in Exhibit F1 is different from the plot 1521 Cadastral Zone A03 of the plaintiff in Exhibit C.

Therefore Issue 2 is resolved in favour of the Respondents.

ISSUE 3

Whether the learned trial judge rightly refused to invoke Section 167(d) of the Evidence Act, 2011 (as amended) against the 1st and 2nd Respondents when they withheld and failed to produce the Appellant’s certificate of occupancy in their custody (Ground 5 of the Notice of Appeal).

Learned counsel to the Appellant submits that the 1st and 2nd Respondent on their statement of defence pleaded and frontloaded the certificates of occupancy of Gora Nig. Ltd and the Appellant respectively. However, they tendered the certificate of occupancy in respect of Gora Nig. Ltd, Exhibit Fl and withheld tendering the Appellant’s certificate at the trial because its unfavourable to them.

Consequently, the Appellant invited and urged the trial Court to invoke Section 167(d) Evidence Act, 2011 (as amended) against the 1st and 2nd Respondents for withholding Evidence. But the learned trial judge failed to invoke the said Section. He relied on (1) UZUEGBU Vs. PROGRESS BANK (NIG) LTD (1988) 4 NWLR (Pt. 87) 236 at 240. (2) ALHAJI ADEBOLA OLAKUNLE ELIAS Vs. CHIEF TIMOTHY OMO-BARE (1982) ALL NLR, SC 75 at 76 and 84. (3) OGWURU Vs. C.C. B (1994) 8 NWLR (Pt. 365) 685.

He urged this Court to resolve this issue in favour of the Appellant.

In response, learned counsel to the 1st and 2nd Respondents submit that Section 167 of the Evidence Act does not apply on the circumstances of this case since nothing has been proved that the document in question emanated from the 1st and 2nd Respondents. That the Respondents could not have withhold what they did not have in the first place.

He urged this Court to discountenance the appellant’s submission to that effect.

In his own response, learned counsel to the 3rd respondent submits that the Appellant did not give the 1st and 2nd Respondents notice to produce the certificate of occupancy; neither did the Appellant apply for a Certified True Copy of the certificate of occupancy.

That the burden of producing the certificate of occupancy is vested on the Appellant who is the person relying on the said document as its evidence of title.

That the learned trial judge rightly refused to invoke Section 167 (d) of the Evidence Act, 2011 (as amended) against the 1st and 2nd Respondents because they did not withhold and fail to produce the Appellant’s certificate of occupancy as alleged by the Appellant.

Nevertheless, learned counsel submits that the purpose of a notice to produce is to entitle the party giving the notice an opportunity to adduce secondary evidence. He relied on: – (1) AWUSE Vs. ODILI (2005) ALL FWLR (Pt. 248) pg 297, paragraphs E- F. (2) ADEGBUYI Vs. MUSTAPHA (2010) ALL FWLR (Pt. 532) pg 1778 – 1779 paragraphs G – B.

And that a party on whom a notice to produce is issued is not obliged to produce same or tender the documents on the notice as evidence. He cited (1) YUSUF Vs. OBASANJO (2006) ALL FWLR (Pt. 476) paragraphs B- F. (2) OCEANIC BANK INT’L LTD Vs. UDUME BRAYE (SUPRA).

He urged this Court to resolve this issue in its favour.

It is the law under Section 167(d) of the Evidence Act, 2011, that a Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of a particular case and in particular, the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withheld it. See COP Vs. TOBIN (2009) 10 NWLR (Pt. 1148) 62 at 105. What this means is that, where a document is in the custody of a party, that party owes it a duty to produce such a document before the Court. Where such a party fails to do so, it raises the presumption under Section 167(d) of the Evidence Act that if produced, it would be unfavourable to him.

The learned trial judge rightly held that: –

“Now the law is settled that the effect of the failure to answer to a notice to produce or subpoena does not lead to an adverse finding against the defaulting party. It was open to the plaintiff to issue committal proceedings or adduce secondary evidence of the C of O. See BUHARI Vs. OBASANJO (2005) 7 SCNJ 1 at 52, 113 and 170 and LAWAL Vs. MAGAJI (2009) 1 LPELR 1 at 66 – 67.”

The plaintiff did neither. There is therefore nothing to be made of the fact that the 1st and 2nd Defendants did not produce the C of O consequent upon the notice to produce and subpoena. Furthermore, the plaintiff’s sole witness testified that the plaintiff’s C of O is registered and can be found in the certificates of occupancy Register, the plaintiff however failed to produce any proof of the said registration of the plaintiff’s C of O in the certificate of occupancy Register. In all therefore, based on the documents produced and relied upon, I do not find anything on the evidence establishing the plaintiff’s title to the land in dispute.”

Issue 3 is thus resolved against the Appellant.

ISSUE FOUR

“Whether the Learned Trial Judge was right when he refused to make use of a document in its file, the Appellants? Certificate of Occupancy front loaded by the 1st and 2nd Respondents in their Statement of Defense (Ground 6).”

The Appellant’s Learned Counsel submitted that a Court can make use of and rely on the documents in its file when writing judgment even if they were not tendered and admitted in evidence. He relied on the cases of OYEWOLE Vs. AKANDE (2009) 15 NWLR (PART 1163) 119 at 125 and AGWARANGBO vs. NAKANDE (2009) 9 NWLR (PART 672) 341 at 351.

That the refusal of the Trial Judge to make used of the Appellant’s Certificate of Occupancy contained in its file occasioned substantial miscarriage of Justice to the Appellant as the said certificate which was front loaded by the 1st and 2nd Respondent in their Statement of Defence contains the survey coordinates and the property beacon numbers of the Appellant’s plot which he said clearly shows that the Appellant’s plot is different from the plot allegedly allocated to GORA Nigeria Limited by 1st and 2nd Respondents. That the Certificate was issued by 1st Respondents and that Exhibit A, A1, A2, B,131, B2 and C are collaterals or documents forming the basis upon which the certificate of Occupancy was issued by the 1st and 2nd Respondents. He urged the Court to resolved issue four in favour of the Appellant.

In his own response, the Learned Counsel to the 1st and 2nd Respondents contended that the Appellant failed to tender the Certificate of Occupancy wherein the alleged differences she talked about could be seen. That evidence of DW1 remained extrinsic and thus not allowed in law. That what will activate the Court and look at documents is for the party to tender the document. That it is a maker of discretion whether or not a Court will look at a document in her file. That the 1st and 2nd Respondent have been vehement that Appellant did not provide any evidence to contradict 1st and 2nd Respondent’s case.

That secondary evidence of the document was not even tendered by the Appellant.

In his own argument, P.AL1 – BOZI (Miss) who settled 3rd Respondent’s Brief argued that the position taken by the Learned Trial Judge was right. That a Court cannot act on untendered document relying on the case of UDEAGHA vs. OMEGARA (2010) ALL FWLR (PART 542) 1805. That the Appellant did not lead any evidence on the Certificate of Occupancy all leading to no issue.

Now the Appellant as the Plaintiff pleaded in paragraph 5 of the statement of claim as follows:

“5 The Plaintiff upon taking possession of the said plot processed and obtained the Certificate of Occupancy prior to rectification and submitted the said certificate to the Defendants through AGIS during the rectification exercise.”

The Appellant has the onerous duty of proving or establishing his right or title to the land with credible evidence. She is the one claiming for declaratory reliefs and they are not granted on admissions of the Defendant. The Plaintiff now Appellant having pleaded certificate of occupancy over the land which she failed to tender is deemed to have abandoned that aspect of his case.

See: OBA R. A.A. vs. HRH OBA ALEBIOSU II (1992) LPELR – 2868 (SC) 1 at 10 -11 per KUTIGI, JSC later CJN rtd., of blessed memory who said:

“About the letter pleaded in paragraph 10 of 3rd respondent’s statement of Defence and which was not tendered, the law is simply that paragraph of the pleading is deemed to have been abandoned.”

The Appellant cannot expect the Court as an impartial arbiter to begin to Scrounge for documents of title which the Appellant himself failed to tender. That will amount to descending into the arena and helping one side to prove his case. That is not the duties bestow upon the trial Court who in this case refused to take side with any party. The Appellant must lay on his bed as he has made it. The Learned Trial Judge cannot under any guise be blamed for not making use of a moribund document in his file. Issue 4 is resolved against the Appellant.

ISSUE 5

“Whether the Learned Trial Judge properly evaluated the evidence and whether the judgment is not against the weight of evidence having regard to the circumstance of this case. (Ground 7 & 8)”

The Appellant Learned Counsel is here accusing the lower Court of failing to properly evaluate and consider the documentary evidence before it. The Appellant’s Learned Counsel took time to go over all issue already canvassed in this appeal. He accused the Learned Trial Judge of going outside the issues joined. He urged this Court to interfere in the findings of the Learned Trial Court.

In his response, the Learned Counsel to the 1st and 2nd Respondents submitted that the Learned Trial Judge observed the principle of evaluation of evidence in the course of his judgment. He relied on pages 296 – 297 of the record in urging the Court to resolve the issue against the Appellant.

The 3rd Respondent did not respond to issue 5 but nonetheless asked the Court on the oral and documentary evidence before the Court to dismiss the appeal.

I must say that I have read the Appellant’s Reply Brief; it is a wholesale repetition of arguments already canvassed under issues 1 – 5 of the main Brief.

It must be stated that an Appellant who complains that judgment of lower Court is perverse for lack of proper evaluation of oral and documentary evidence before the lower Court he has to show a misapplication of the evidence led and lack of appreciation of the case of the parties and the evidence led. It must be shown that the inaction of the trial Court in evaluation of the evidence led to a miscarriage of justice.

This is a case in which from the printed record the Appellant woefully failed to establish his title or rights in the property, the subject matter of this suit. The findings of the lower Court on pages 296-300 show clearly that the Learned Trial Judge diligently evaluated the oral and documentary evidence led and proffered before the lower Court. This Court will not interfere in the judgment of the lower Court.

Issue 5 is resolved against the Appellant.

In the result, the Appellant’s appeal has no merit. It is accordingly dismissed.

The judgment of the Federal Capital Territory High Court Abuja delivered by HON. JUSTICE U. A. OGAKWU (now JCA) on 28th day of January, 2014 is hereby affirmed. The Appellant shall pay N50,000.00 (Fifty Thousand Naira) costs to the 1st and 2nd Respondents only.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA. My learned brother has effectively resolved all the issues generated in this appeal and I concur with the reasoning and the conclusion thereat.

I too find this appeal lacking in merit. It is accordingly dismissed. I abide by the consequential order inclusive of the order as to costs as made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA, I agree with the reasoning, conclusions and orders therein.

Appearances:

A.O. Igen with him, J. K. Ejiga and H A. AguFor Appellant(s)

E. I. Esene for 1st and 2nd Respondents.

Felix Abiodun with him, U.E. Udofia for 3rd RespondentFor Respondent(s)