YONWUREN v. MODERN SIGNS LTD
(2021)LCN/15906(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, April 29, 2021
CA/L/593/2006
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
THOMPSON ASHAYEBE YONWUREN APPELANT(S)
And
MODERN SIGNS LIMITED RESPONDENT(S)
RATIO:
THE RECOGNITION OF CERTAIN GROSS MISCONDUCTS AND THE GRANT OF FORFEITURE
The law has recognised/sanctioned certain gross misconducts, which if exhibited by a tenant or a lessee, will lead to grant of forfeiture against him, videlicet: alienation of the whole or portion of land to others without prior consent of the grantor, putting the land to uses other than those originally agreed on, failure to pay rents or customary tributes or denial of the overlord/lessor’s title to the land. The acts of misconduct/misbahaviour are opened and inexhaustible, see Olugbode v. Sangodeyi (1996) 4 SCNJ1p; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460; Eyigebe v. Iyaji (2013) 11 NWLR (Pt. 1365) 407;Olonade v. Sowemimo (2014) 14 NWLR (Pt. 1428) 472; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96;Akinbade v. Babatunde(2018) 7 NWLR (Pt. 1618) 366, UBN Plc v. Awmar Properties Ltd (supra). OBANDE FESTUS OGBUINYA, J.C.A.
WHAT OCCASIONS TO A MISCARRIAGE OF JUSTICE
In an avowed bid to castrate the finding, the appellant branded it as having occasioned a miscarriage of justice on his case. Miscarriage of justice, in law, denotes such a departure from the rules which pervades all judicial processes as to make what happened not, in the proper sense of the word, a judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W.S.W. Ltd. (2012) 7 NWLR (Pt. 1329) 286; Abubakar V. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125. OBANDE FESTUS OGBUINYA, J.C.A.
THE INDEPENDENT AND SEPARATE ACTION WHICH IS TRIABLE WITH THE MAIN CLAIM FOR REASON OF CONVENIENCE
It is an elementary law, indeed properly propagated in our corpus juris, that a counter-claim, a cross-action, is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court, see Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJ.S.C. (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017) 1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125. OBANDE FESTUS OGBUINYA, J.C.A.
THE DEFINITION OF TRUST AND THE RELATIONSHIP BETWEEN REAL OR PERSONAL AND LEGAL OR EQUITABLE TITLE
The first place, trust denotes the right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title. In a broader legal sense, it is a relationship which arises whenever a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee but, to the beneficiaries or other object of the trust, see Huebner v. A.I.E & P.M. Co. Ltd. (2017) 14 NWLR (Pt. 1586) 397. OBANDE FESTUS OGBUINYA, J.C.A.
THE CLASSIFICATION OF TRUST AND THEIR DEFINITIONS
The law categorises trust into three classes, videlicet: (a) Express trust – it occurs when the owner declares himself a trustee of the property for another person’s benefit or vest a property in another person as a trustee for another’s benefit. (b) Implied or Resulting trust – which arises from the presumed intention of the owner which intention is predicated on the operation of law and not on agreement of parties. (c) Constructive trust which bears/wears other names: involuntary trust, trust ex delicto, trust ex maleficio, remedial trust, trust invitum, trust de son tort. It is imposed by equity, through the Court, regardless of the intention of the property where it will be unconscionable for the apparent beneficial owner or trustee to hold the property for his benefit. The conscience of equity finds expression through constructive trust. Where a person wrongly obtains property or legal title, equity converts him into a trustee through the specie of constructive trust, see Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 (1994) 7–8 SCNJ 524; Ezeanah v. Atta (2004) 7 NWLR (Pt. 873) 468; Ughutevbe v. Shonowo (2004) 16 NWLR (Pt. 899) 300; Madu v. Madu (2008) 6 NWLR (Pt. 1083) 296; Ibekwe v. Nwosu (2011) 9 NWLR (Pt. 1251) 1; Huebner v. A.I.E & P.M. Co. Ltd (supra). OBANDE FESTUS OGBUINYA, J.C.A.
THE OBJECT AND PURPOSE OF CROSS EXAMINATION
There is no gainsaying the fact that, in our adversarial system of adjudication, the object of cross-examination is to test the credibility of an opponent’s case. It is meant to deflate and discredit the evidence-in-chief of a witness. It has the potential to perforate an opponent’s case and enhance that of the cross-examiner. It is used to test the veracity of a witness. It is the yardstick with which to measure the truth in evidence-in-chief of a witness. It affords the judex the sufficient opportunity to watch and assess the credibility and reliability of a witness by watching his demeanour in the witness box, see Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 466; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Adama v. K.S.H.A. (2019) 16 NWLR (Pt. 1699) 501; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440 OBANDE FESTUS OGBUINYA, J.C.A.
THE PRINCIPLE OF LAW ON THE EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS
It is startling that, the appellant’s counsel, in his infinite wisdom, failed/neglected to cross-examine the witness on the critical and decisive issue: the appellant holding the property in trust for the respondent. It is settled law, that where a party fails to cross-examine a party on a point, he is deemed to have admitted it, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 181) 338; Nwokocha v. A.G, Imo State (2016) 8 NWLR (Pt. 1513) 141; Olowu v. Building Stock Ltd. (2018)1 NWLR (Pt.1601) 343. Thus, the caustic consequence of the appellant’s neglect to cross-examine DW2, on the crucial piece of evidence, id est, that he held the property in trust for the respondent, is an undiluted admission of it. It flows that the appellant’s failure to cross-examine the witness on the pungent evidence, which snowballed into admission, displaces the learned appellant’s counsel’s seemingly alluring submission on the point. OBANDE FESTUS OGBUINYA, J.C.A.
THE PRINCIPLE OF LAW ON ADMISSION AND THE DEFINITION.
To start with, in the sight of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, J.S.C.;UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499;Orianzi v. A.G., Rivers State(2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247. OBANDE FESTUS OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Lagos State, holden in Ikeja Division (hereunder addressed as “the lower Court”), coram judice: S.O. Ishola, J., in Suit No: ID/1111/1995, delivered on 25th April, 2005. Before the lower Court, the appellant and the respondent were the plaintiff and the defendant respectively.
The facts of the case, which transformed into the appeal, are obedient to brevity and simplicity. In a deed of lease, dated 25th October, 1975, the Executors and Trustees of the Estate of Chief T.A. Doherty (deceased) granted a lease of a property, situate at plot No. 4 Chief T.A. Doherty Layout, Oregun Industrial Estate, Oregun, Ikeja, Lagos State (the property), for a period of 57 years with an option for renewal to the appellant. The lease was registered as No. 81 at page 81 in volume 1523 of the Lands Registry Office, Ikeja, Lagos State. The appellant granted a sublease of the property to the respondent, via a deed of sublease dated 15th December, 1976, for a period of 25 years. It was registered as No. 67 at page 67 in volume 1611 of the same Lands Registry Office, Ikeja, Lagos State. The appellant paid his rent faithfully under the head lease. The appellant alleged that the respondent breached the covenants in the sublease when it failed to pay the accumulated annual rent for the property and parted with the possession of the same to another person without his consent as required in the sublease. Sequel to that, the appellant beseeched the lower Court, via a writ of summons filed on 20th April, 1995, and tabled against the respondent the following reliefs:
1. Forfeiture of the sublease between the parties hereto and possession of the said premises and an order of this Honourable Court to eject all persons therefrom.
2. The sum of N45,631.60 being arrears of rent due from the defendants from April 1st, 1978 to March 31st, 1995.
3. Damages for the defendants’ occupation and use of the property from the date of forfeiture, that is to say, with effect from the date of the writ of summons in this suit. The plaintiff shall call Estate Agents to testify at any trial of this action that the annual rental value of the property is in excess of N1,000,000 and he consequently claims damages at that minimal rate until possession is delivered to the plaintiff by the defendants.
In reaction, the respondent joined issue with the appellant and denied liability by filing a defence. It claimed that, parties agreed that the sublease would be renewed after the first 25 years. It alleged that it paid N80,000 to the original lessor, Hydrological Engineering Services Nigeria Limited (H.E.S.) and the appellant offered to take the head lease in his name because, the respondent was an alien company that could not take a lease for more than 25 years. Consequently, the respondent counter-claimed as follows:
(i) A Declaration that by virtue of its payment of the sum of N80,000.00 to HES being the consideration for the purchase of the latter’s leasehold interest in the property which is the subject matter of this suit, the Defendant is the true beneficial owner thereof.
(ii) A Declaration that the Plaintiff holds the said property as trustee for the Defendant.
IN THE ALTERNATIVE, the Defendant counter claims:
(i) If, contrary to its contentions, it should be found that it has committed the alleged or any breach or breaches of covenant it claims to be relieved from the alleged forfeiture on such terms as the Court shall deem fit.
(ii) Further, in pursuance of the agreement described in paragraph 15(i) above, and in any event the Defendant is on the expiry of it first term of 25 years entitled to possession for a further term pf 25 years as the plaintiff’s sub–lessee in respect of the property situate at and known as plot No. 4, Chief T.A. Doherty’s Layout, Oregun Industrial Estates, Oregun, Ikeja, Lagos State.
And the Defendant claims specific performance of the agreement aforesaid.
Following the discordant claims, the lower Court had a full-scale determination of the case. In proof of the case, the appellant testified in person as PW1. In disproof of it, and proof of the counter-claim, the respondent fielded two witnesses, DW1 and DW2. Tons of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through their counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 25th April, 2005, found at pages 167 – 178 of the record, the lower Court dismissed the claim and granted the counter-claim.
The appellant was dissatisfied with the judgment. Hence, on 2nd June, 2005, he lodged a 10-ground notice of appeal which is copied at pages 179 – 184 of the record. Subsequently, the appellant, with the leave of this Court, filed an amended notice of appeal on 19th May, 2011, which hosts 9 grounds, wherein he prayed for:
1. An Order setting aside the whole judgment of the lower Court.
2. An Order entering judgment in favour of the claimant/appellant as per his Statement of Claim.
3. An Order dismissing the counterclaim of the defendants/respondents in its entirety.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 1st February, 2021.
During its hearing, learned appellant’s counsel, J.D. Oloyede, Esq., adopted the further amended appellant’s brief of argument, filed 26th September, 2018, and the appellant’s amended reply brief, filed on 9th July, 2019, both deemed properly filed on 18th November, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, Tani Molajo, SAN, adopted the 2nd further amended respondent’s brief of argument, filed on 28th June, 2019, but deemed properly filed on 18th November, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
1. Whether it was proper in law for the trial Court to have accepted the oral evidence of DW2 which contradicts the spirit and letters of Exhibit 2 given the state of the pleadings and provisions of Section 132(1) of the Evidence Act, Cap E14, Laws of the Federation of Nigeria, 2004, and/or whether the trial Court ought not to have rejected Exhibit 8 and the oral testimony of DW2 apparently denying the relationship of landlord and tenant between the parties hereto interpreted against the backdrop of the provisions of Section 34, 152, 198 and 199 of the Evidence Act in the face of the Exhibits 1 and 2.
2. Whether the fact that, as at the date the judgment of the lower Court was being delivered, the lease represented in Exhibit 2 had expired, ousted the jurisdiction reposed in the lower Court to decree forfeiture in favour of the appellant.
3. Whether there is any basis for a declaration of trust as between the appellant and the respondent given the existence of Exhibits 1 and 2 and/or whether the lower Court could decree as it did in favour of the respondent on its counter claim after having refused the appellant’s claim.
In the respondent’s brief of argument, learned counsel crafted four issues for determination, namely:
1. Whether the Appellant sustained his claim against the Respondent.
2. Whether in any event, the claim for forfeiture had not, having regard to the Statement of Claim, been overtaken by events prior to the date of judgment in the Court below.
3. Whether the appellant is not estopped from contending that the Respondent’s Counter-Claim was not available to the Respondent.
4. If the immediately preceding issue is resolved against the appellant, whether the Respondent has proved its Counter-Claim.
A close look at the two sets of issues, shows that they are identical in substance. In fact, the respondent’s issues can be conveniently subsumed under the appellant’s. Given this sameness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal.
Arguments on the issues:
Issue one.
Learned appellant’s counsel submitted that the lower Court wrongly accepted the oral evidence of DW2 which contradicted the deed of lease in exhibit 2. He relied on Section 132(1) of the Evidence Act, Cap. E14, Laws of the Federation of Nigeria (LFN), 2004; Larmie v. D.P.M.S. Ltd (2005) 12 SC (Pt. 1) 93; UBN Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Eke v. Odofin (1961) All NLR 842; Colonial Dev. Board v. Kamson (1955) 21 NLR 75; Molade v. Molade (1958) (sic: no citation of law report) 206; Macaulay v. Merchant Bank Ltd (1990) NWLR (Pt. 144) 283. He noted that there was no prior or subsequent agreement between the parties that was capable of changing the terms in exhibits 1 and 2. He stated that no grant was made to the H.E.S. in exhibit 1. He described the evidence of DW2 as inconsistent in respect of exhibits 1 and 2 and the appellant’s advice to the respondent. He added that exhibit P8 was inadmissible because it was contrary to Section 34(1) of the Evidence Act, 2004. He cited Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142; Adeyemi Ogunnaike v. Taiwo Ojayemi (1987) 3 SC 213; Afribank v. Fadlatex (1997) 3 NWLR (Pt. 493) 367.
Learned counsel reasoned that the lower Court wrongly relied on the proviso to Section 132(1)(d) of the Evidence Act. He referred to UBN v. Sax (1994) 8 NWLR (Pt. 361) 150; UBN v. Okolo (1995) 6 NWLR (Pt. 405) 127. He declared the cases of Ekwunife v. Wayne (W.A) Ltd (1989) 5 NWLR (Pt. 122) 422; Alli v. Ikusebiala (1985) 1 NWLR (Pt. 4) 630, relied by the lower Court, as inapplicable to the case. He observed that the respondent did not allege fraud so as to come under the proviso to Section 132(1) of the Evidence Act. He cited Arjay Ltd. v. Airline Mgt. Support (2003) 2 – 3 SC 1. He added that there was no basis for declaration of trust based on exhibits 1 and 2. He referred to Section 152 of the Evidence Act. He explained that trust was not pleaded as required by Order 17 Rule 5(1) of the High Court of Lagos State (Civil Procedure) Rules, 1994 (the High Court Rules).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It was posited that the lower Court wrongly found on another lease of 25 years because, it was not in writing as required by law. He cited Conveyancing Act, 1881 (applicable to Lagos State); Section 3 of the Real Property Act, 1848; Halsbury’s Laws of England, 4th edition, volume 12, paragraph 1307 at page 509; Section 15 of the Land Instrument Registration Law of Lagos State, 1994 (now Cap, L. 58 of 2004); Abiodun v. Ogunyomi (1962) 1 All NLR 550; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 288; Olaoye v. Balogun (1990) 5 NWLR (Pt. 148) 24; Colonial Dev. Board v. Kamson (supra); Molade v. Molade (1958) SCNLR 206; Phipson on Evidence pages 1165 and 1166.
On behalf of the respondent, learned counsel contended that the lower Court rightly acted on the unchallenged evidence of the respondent. He relied on Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79; NICON v. Power and Industrial Engineering Enterprises Ltd (1986) 1 NWLR (Pt. 14) 1. He asserted that the lower Court was right to hold that the appellant’s evidence was unworthy of belief. He cited Oguntayo v. Adebutu (1997) 12 NWLR (Pt. 531) 81. He stated that exhibit 8 contradicted his denial evidence. He observed that appellant’s evidence was full of admissions of the respondent’s case.
It was argued the evidence of DW 2 fell within the Section 132(1)(a) and (b) (now 128 (1)(a) and (b) of the Evidence Act because it was on a matter on which the document, exhibits 1 and 2, were silent on. He relied on Snell’s Principles of Equity, 24th edition, pages 150 and 151.
Issue two:
Learned appellant’s counsel contended that the lower Court wrongly declined jurisdiction to order for forfeiture because, the lease had expired at the time of judgment. He noted that the suit was commenced before it expired. He claimed that an order for forfeiture would have related back to when the rent demanded was made or action filed. He stated that other reliefs were tied to the forfeiture claim. He described the lower Court’s action as a miscarriage of justice. He insisted that the lower Court had the jurisdiction to make an order for forfeiture. He took the view that forfeiture was cognisable under the Conveyance and Law Property Act, 1881 (statute of general application) and Common Law Procedure Act, 1852. He relied on Olaniyan v. Shokunbi (1997) 6 NWLR (Pt. 509) 447. He concluded that exhibit 2 took care of the circumstances that necessitated order of forfeiture.
For the respondent, learned counsel submitted that the appellant admitted that the sublease had expired, from 1st April, 1975 – 31st March, 2000, thereby, making the claim for forfeiture incompetent, but one for recovery of possession. He added that the appellant admitted that no statutory notices were served thereby making the claim incompetent. He cited Pan Asian v. NICON (1982) Vol. 13 NSCC 293 at 303.
Issue three:
Learned appellant’s counsel argued that the appellant’s evidence was not discredited under cross-examination. He repeated that exhibit P8 was inadmissible under Section 34(1) and 299 of the Evidence Act. He relied on Adeyemi Ogunnaike v. Taiwo Ojayemi (supra); Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22. He noted that a Court would exclude inadmissible evidence. He cited Owonyin v. Omotosho (1961) All NLR 304. He canvassed the view that the lower Court wrongly applied the decision in Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505. He stated that a Court would lean more on documents than demeanour of witnesses when both conflict. He referred to Thomas Aplin Co. Ltd v. NNDC (1972) 12 SC 33; Usman v. Garke (1999) 1 NWLR (Pt. 587) 466.
Learned counsel postulated that the lower Court should not have granted the counter-claim when its counsel conceded that it was available if it was not overtaken. He maintained that counsel could make admission for the party. He cited Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661; Odu’a Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt. 170) 761.
On the side of the respondent, learned counsel contended that the counter-claim was available to the respondent as the lower Court granted it leave to file it, thereby making it an issue estoppel. He relied on Fidelitas Shipping Co. Ltd v. O. Exportchleb (1966) 1 Q.B. 630 at 640; Fadiora v. Gbadebo (1978) 3 SC 219 at 228. He noted that the appellant filed a reply to the counter-claim on the merit of it.
Learned counsel argued that the respondent proved the counter-claim. He relied on the DW2’s evidence, exhibits D1, D3 and P8. He observed that the remedy of specific performance is available in equity on the basis of part performance. He cited Cheshire & Fifoot Law of Contract, 4th edition, P. 164; Section 5(3) of the Lagos State Law Reform (Contracts) Law. He persisted that oral contract followed by sufficient act of part performance excludes the law that land transaction must be reduced into writing. He cited Shelle v. Rossek (1938) 14 NLR 80. He explained that the respondent made payment in respect of the lease which the appellant admitted.
On points of law, learned appellant’s counsel posited that there was no resulting trust. He cited Grace Madu v. Dr. Bertrand Madu (2008) 2 – 3 SC (Pt. II) 109.
Resolution of the issues.
In the spirit of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will, without much ado, kick start with the treatment of issue one. The kernel of the issue, which is unnecessarily windy and woolly, is plain. It chastises the lower Court’s admission and countenance of the evidence of DW2 and exhibit P8. It, evidently, has two limbs. I will consider the two limbs seriatim, beginning with the validity of the DW2’s evidence.
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The gravamen of the appellant’s chief grievance, under the first limb, orbits around the lower Court’s acceptance of DW2’s evidence which contradicted the documentary evidence in exhibit 2. The appellant’s agitation is erected on the provision of Section 132(1) of the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, LFN, 2004, now Section 128(1) of the Evidence Act, 2011. The respondent, also, staked its defence on the proviso to the selfsame provision. Due to kingly position of the provision here, it is imperative to pluck out its salient portion as ingrained in the statute book, ipsissima verba, thus:
1. When any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant, or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such documents be contradicted, altered, added to or varied by oral evidence:
Provided that any of the following of the matters may be proved-
(b) the existence of any separate oral agreement as to any matter on which the document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intent the document to be a complete and final statement of the whole of the transaction between them;
(d) the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property;
Nota bene, the provision, which is rebellious to ambiguity, has fallen for interpretation before the apex Court in a galaxy of authorities. It has been construed to the effect that any oral evidence which tends/purports to add, vary, alter or contradict written document is inadmissible, see Alli v. Ikusebiala (1985) 1 NWLR (Pt. 4) 630; Ekwunife v. Wayne (W.A) Ltd. (1989) 5 NWLR (Pt. 122) 422; Larmie v. D.P.M.S Ltd (2005) 18 NWLR (Pt. 958) 438; Ogundepo v. Olumesan (2011) 18 NWLR (Pt. 1278) 54; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96; Huebner v. A.I.E & P.M. Co. Ltd (2017) 14 NWLR (Pt. 1586) 397; Bulet Int’l (Nig.) Ltd. v. Olaniyi (2017) 17 NWLR (Pt. 1594) 260; Olowu v. Building Stock Ltd (2018) 1 NWLR (Pt. 1601) 343; Ugwuegede v. Asadu (2018) 10 NWLR (Pt. 1628) 460.
A globally acclaimed guru in the law of evidence, Phipson, evolved two reasons for the provision, videlicet: superiority of documentary evidence over oral evidence and written document to form a full and final statement of intention of parties and privies “which should be placed beyond the reach of future controversy, bad faith or treacherous memory.” In Larmie v. D.P.M.S. Ltd (supra), the Supreme Court gave its blessing to Phipson’s proposition on exclusion of oral evidence from the domain of written documents. The endorsement finds anchorage in the indestructibility of documents in adjudication. Documentary evidence lords it over parol evidence. Documentary evidence is permanent, incorruptible, and indelible in contradistinction to oral evidence which oozes out of the vocal cord of man and susceptible to distortion/mutation by its author/owner. In Larmie v. D.P.M.S. Ltd (supra), at 471, Tobi, J.S.C., of the blessed memory, coined the purpose of the provision. His Lordship incisively, declared:
“The stringent position of Section 132(1) is to ensure that a party to a contract in writing does not change his position midstream to his underserved advantage and to the detriment of the unsuspecting adverse party.”
It cannot be gainsaid, however, based on the phraseology and tenor of the provision, which bars vice voce evidence from altering written evidence, that it is inflexible. Its elasticity in application is, amply, located in its provisos. In other words, the provision which warehouses an army of provisos, admits of exceptions. The respondent’s defence traces its paternity to the averments in paragraphs 4, 5 and 6 of its amended statement of defence and counter-claim which colonises pages 135–140 of the record. A resume of it is amenable to easy appreciation. It is this: The disputed property was originally leased to Hydrological Engineering Services Nigeria Limited (H.E.S.) by the Executors and Trustees of the Estate of late Chief T.A. Doherty for a period of 57 years. H.E.S., prior to an execution of a deed of lease, offered its interest to the respondent which accepted on the consideration of N80,000.00. The appellant, the then legal adviser to H.E.S., advised and opted to take the lease for the respondent on the ground that being an alien company, the law forbade it from taking a lease beyond 25 years. On the footing of the advice, the appellant became a lessee of the owner, Executors and Trustees of the late Chief T.A. Doherty, who granted a lease of the disputed plot to him for 57 years. That is exhibit 1. The appellant then subleased it to the respondent for a period of 25 years. It is exhibit 2. It was agreed between the parties that on the expiry of the first term of 25 years, the appellant would grant a further term of 25 years to the respondent.
Now, in due fidelity to the desire of the law, I have consulted the record, the bedrock of every appeal. My port of call is at the residence of DW2’s evidence which monopolises pages 142–145 of the record. The oral agreement of the contending parties that the appellant would grant a further term of 25 years of the disputed property to the respondent was not part and parcel of the content of the sublease in exhibit 2. Indisputably, the agreement was a classic exemplification of “separate oral agreement as to any matter which” the deed of sublease was silent on but intended to modify the grant/disposition of the disputed property. In essence, the separate and subsequent oral agreement falls within the four walls of the provisos (b) and (d) to Section 132(1)/128(1) of the Evidence Act. The evidence-in-chief of DW2, the respondent’s star witness, was anchored on the existence of that separate oral agreement that did not form part of exhibit 2 – the sublease. In the mind of the law, the object of a proviso, an exception to the main rule which speaks the last intention of a legislator, is to cut down, modify, qualify, trim, relax or limit the powers conferred by the main Section of a statute or document or exclude some possible ground of misinterpretation of its extent/scope. It restrains the absoluteness or generality of a Section of a law or document. It discloses the proper meaning of a Section of law that is submissive to more than one meaning, see Eme v. State (1964) 1 All NLR 416; Anya v. State (1965) NWLR 62; Abasi v. State (1992) 8 NWLR (Pt. 260) 383; NDIC v. Okem Ent. Ltd (2004) 10 NWLR (Pt. 880) 107; FRN v. Nwosu (2016) 17 NWLR (Pt. 1541) 226. Thus, the provisos to the provision of Section 132(1)/128 supra dilute its strict application in deserving circumstance. The evidence of DW 2, on separate oral agreement, takes shelter under the canopy of the provisos (b) and (d) to the provision and, de jure, admissible. The lower Court’s reliance on the evidence was totally divorced from being injudicious or offensive to the law as to fetch the intervention of this Court. Consequently, all the diatribes, which the learned appellant’s counsel rained against its acceptance and utilisation, pale into insignificance. They are disabled in the face of the effervescent operation of provisos (b) and (d) to the provision of Section 132 (1)/128(1) of the Evidence Act.
That brings me to the treatment of the second limb of the issue. The plinth of the appellant’s grouse, indeed his trump card on the limb, is pegged against the lower Court’s admission of exhibit P8. The appellant greeted its admission with stiff opposition on the ground that it did violence to the provision of Section 34(1) of the Evidence Act, 2004, now Section 46(1) of the Evidence Act, 2011. Being the cynosure of this limb, I will extract it out from where it is domiciled in the Evidence Act, verbatim ac litteratim, as follows:
(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or he is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable:
Provided-
(a) That the proceeding was between the same parties of their representatives in interest;
(b) That the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) That the questions in issue were substantially the same in the first as in the second proceeding.
Incontestably, the provision harbours no ambiguity. It centres on the admissibility of previous proceedings in subsequent proceedings. It is germane to place on record, pronto, that the provision is not self-executory. For a party, who employs it, to benefit/gain from its beneficent sanctuary, he must satisfy all the conjunctive conditions and the provisos appurtenant to it. The converse is true. Where a party fails to fulfill the conditions, the previous proceeding will not attract the indulgence of the Court by dint of its admission, see Alade v. Aborisade (1960) SCNLR 398; Ikenye v. Ofune (1985) 2 NWLR (Pt. 5) 1; Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351; Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1; Shanu v. Afribank (Nig.) Plc (2002) 17 NWLR (Pt. 795) 185; Eghobamien v. FMBN (2002) 17 NWLR (Pt. 797) 488; Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407; Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) 348; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460; Aminu v. Hassan (2014) 5 NWLR (Pt. 1400) 287; Eze v. Ene (2017) 12 NWLR (Pt. 1579) 313.
I have, in due loyalty to the expectation of the law, married the admission of exhibit P8 with the provision of Section 34(1)/46(1) of the Evidence Act displayed above.
The raison d’etre for the juxtaposition is not far-fetched. It is to ascertain if the admission respected or flouted the provision. To begin with, exhibit P8 owed its ancestry to the record of proceedings in Suit No: ID/5M/1978. The proceeding was between the feuding parties to the suit that parented this appeal. The adverse party, the respondent therein, had the opportunity to cross-examine the appellant in that proceeding. The issue in this case, which mothered the appeal, and in that action, which gave birth to the proceeding, mirror each other in the sense that it revolved around possession of the same disputed property. Thus, the three provisos tied to the provision were duly complied with. That cannot, however, be said of the inbuilt conditions in the provision. The respondent starved the lower Court of the concrete evidence that the witness who testified in the previous proceeding, the appellant, was dead, could not be found, incapable of giving evidence, kept out of the way by the adverse party or his presence could not be obtained without unreasonable delay or expense.Nevertheless, the appellant has only scored a barren victory on the respondent’s non-satisfaction of the conditions appended to the provision. Remarkably, it was the appellant that testified in the previous proceedings which was the product of Suit No: ID/5M/1978. In Alade v. Aborishade (1960) 1 NSCC 111 at 155/(1960) 1 SC NLR 398 at 404, Abbot, F.J., proclaimed:
“The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that.”
See, also Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351; Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407; Aminu v. Hassan (2014) 5 NWLR (Pt. 1400) 287.
I have, in due allegiance to the spirit of the law, visited the record, the spinal cord of the appeal, at the abode of the evidence of PW1, the appellant, which occupy pages 110–124 of the record. The cross-examination of PW1 spans pages 116–124 of the record. In the heat of cross-examination, as discernible from the record, the appellant wavered/prevaricated on certain facts which were per contra to the assertions he made in the previous proceedings in Suit No.: ID/5M/1978. The respondent’s counsel, T. Molajo, SAN, tendered the previous proceeding to show that the witness was economical with the truth, especially as it concerned the payment of N80,000 which the respondent paid to the H.E.S. as total consideration for the entire lease transaction. It stems from the foregoing that, the previous proceeding, which later transfigured into exhibit P8, was deployed by the respondent, an opponent, for the purposes of cross-examination as to deflate the credit which the appellant brandished and paraded in his viva voce testimony in the case. Put starkly, it was tendered with the mission to impugn the evidential credit of the appellant as a witness. Exhibit P8 was, therefore, utilised for the purpose reserved for it by the law. On this score, the admission of exhibit P8 did not run foul of the procedural law. This dissection, with due reverence, punctures the learned appellant’s counsel’s scintillating argument on this limb. It cannot fly!
Flowing from this juridical survey on admissibility of evidence, done in due consonance with the law, the lower Court did not fracture the adjectival law when it admitted the evidence of DW2 and exhibit P8. I am drained of any legal justification to ostracise them from the corpus of evidence in this appeal. I welcome them to the appeal and crown them with the toga of admissibility. I, therefore, dishonour the appellant’s salivating invitation to sacrifice the DW2’s evidence and exhibit P8 on the underserved alter of inadmissibility for want of legal justification. In the end, I resolve the issue one against the appellant and in favour of the respondent.
Having dispensed with issue one, I proceed to settle issue two. The marrow of the issue, which is canalised within a narrow compass, is simple. It castigates the lower Court’s failure to make an order of forfeiture of the sublease in favour of the appellant.
It is important to appreciate the purport and incidents of forfeiture. Forfeiture connotes: “A destruction or deprivation of some estate right because of the failure to perform some contractual obligation or conditions”, see UBN Plc v. Awmar Properties Ltd (2018) 10 NWLR (Pt. 1626) 64. It is grantable in leases or customary tenancy, not on the sale of land, see Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96.
The law has recognised/sanctioned certain gross misconducts, which if exhibited by a tenant or a lessee, will lead to grant of forfeiture against him, videlicet: alienation of the whole or portion of land to others without prior consent of the grantor, putting the land to uses other than those originally agreed on, failure to pay rents or customary tributes or denial of the overlord/lessor’s title to the land. The acts of misconduct/misbahaviour are opened and inexhaustible, see Olugbode v. Sangodeyi (1996) 4 SCNJ1p; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460; Eyigebe v. Iyaji (2013) 11 NWLR (Pt. 1365) 407;Olonade v. Sowemimo (2014) 14 NWLR (Pt. 1428) 472; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96;Akinbade v. Babatunde(2018) 7 NWLR (Pt. 1618) 366, UBN Plc v. Awmar Properties Ltd (supra).
In total obeisance to the injunction of the law, I have made an excursion into the record, the keystone of the appeal, at the domain of the judgment of the lower Court, which is in the heat of expunction, encased between pages 167 – 178 of the record. I have given it a clinical examination with the finery of a tooth comb. Admirably, it is comprehension-friendly. The lower found, rightly in my view, that the appellant failed woefully to sustain his claim against the respondent on footing of want of honour of credibility of the appellant as a witness. My solemn finding under issue one, which there are no extenuating circumstances that will compel me to disturb, is an affirmation of the lower Court’s immaculate finding on want of proof of the appellant’s claim. In the face of that unassailable finding, the claim for forfeiture, which was the foremost relief in the suit, was not available to the appellant. In point of fact, one of the dire consequences of the lower Court finding, as shall be unveiled anon, is that the respondent was the beneficial owner/lessee of the disputed property. The import of that is that the appellant did not prove his claim for forfeiture in the manner decreed by law. The bounden duty on a Court of law is to render to a party according to his proven claim. A Court of law is not a santa claus that dishes and dashes out unproved claims to parties before it. It would have been an ex-gratia award, liable to vacation by this Court, if the lower Court had proceeded to grant the unproved claim for forfeiture when it adjudged the respondent as the substantive lessee. In effect, the lower Court, in my humble view, did not treat the law with disdain and contempt when it refrained from granting the appellant’s prayer for forfeiture.
In an avowed bid to castrate the finding, the appellant branded it as having occasioned a miscarriage of justice on his case. Miscarriage of justice, in law, denotes such a departure from the rules which pervades all judicial processes as to make what happened not, in the proper sense of the word, a judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W.S.W. Ltd. (2012) 7 NWLR (Pt. 1329) 286; Abubakar V. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.
The appellant was stingy in illustrating how he was afflicted with miscarriage of justice. He never proved nor garnered any substantial rights from his claim in the manner ordained by law. From the concrete evidence, the reasonable probability to earn a favourable result in his favour was, with respect, an echo of mirage. In essence, the charge of miscarriage of justice, which the appellant hurled against the finding, is uncharitable and unsustainable. It does not, in the least, smell of miscarriage of justice; a fortiori guilty of it. It is not marooned in the murky ocean of miscarriage of justice as to magnet the intervention of this Court. It will reek of judicial sacrilege to tamper with a finding that has not declared any enmity with the law. In the result, I resolve the issue two against the appellant in favour of the respondent.
It remains to handle the tertiary issue. The focus of the issue is submissive to clarity. It derides the lower Court’s grant of the respondent’s counter-claim.
It is an elementary law, indeed properly propagated in our corpus juris, that a counter-claim, a cross-action, is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court, see Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJ.S.C. (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017) 1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.
Now, the main anchor of the appellant’s grouch, under this issue, projects two prongs. The first prong, and indeed the premier attack, is a frontal onslaught against the lower Court’s declaration of trust between the appellant and the respondent.
It is a subtle invitation to this Court to comb through the legal authorities and display the hallmarks of the doctrine of trust. I will obey the summons as its offspring will serve as a major barometer to gauge the propriety or otherwise of the lower Court’s declaration which is under reprobation.
In the first place, trust denotes the right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title. In a broader legal sense, it is a relationship which arises whenever a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee but, to the beneficiaries or other object of the trust, see Huebner v. A.I.E & P.M. Co. Ltd. (2017) 14 NWLR (Pt. 1586) 397.
The law categorises trust into three classes, videlicet: (a) Express trust – it occurs when the owner declares himself a trustee of the property for another person’s benefit or vest a property in another person as a trustee for another’s benefit. (b) Implied or Resulting trust – which arises from the presumed intention of the owner which intention is predicated on the operation of law and not on agreement of parties. (c) Constructive trust which bears/wears other names: involuntary trust, trust ex delicto, trust ex maleficio, remedial trust, trust invitum, trust de son tort. It is imposed by equity, through the Court, regardless of the intention of the property where it will be unconscionable for the apparent beneficial owner or trustee to hold the property for his benefit. The conscience of equity finds expression through constructive trust. Where a person wrongly obtains property or legal title, equity converts him into a trustee through the specie of constructive trust, see Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 (1994) 7–8 SCNJ 524; Ezeanah v. Atta (2004) 7 NWLR (Pt. 873) 468; Ughutevbe v. Shonowo (2004) 16 NWLR (Pt. 899) 300; Madu v. Madu (2008) 6 NWLR (Pt. 1083) 296; Ibekwe v. Nwosu (2011) 9 NWLR (Pt. 1251) 1; Huebner v. A.I.E & P.M. Co. Ltd (supra).
For a trust to be valid, it must: involve specific property, disclose certainty of subject matter, reflect the settlor’s intention and be created for a lawful purpose, see Ibekwe v. Nwosu (supra); Kure v. COP. (2020) 9 NWLR (Pt. 1729) 296.
I have situated these ingredients of trust with the bald facts of the case which sired the appeal in hand. The relevant genre of trust appertains to resulting or implied trust. In Ezeanah v. Atta (supra), at 502, Tobi, J.S.C., graphically, captured the import of resulting trust in these illuminating words:
“…One other expression for resulting trust is implied trust. An implied trust is one founded upon the unexpressed but presumed intention of the settlor. Such trusts are also referred to as “resulting” because the beneficial interest in the property comes back or results to the person who provided the property of his estate.
Professor G.W. Kecton, in his book, The Law of Trust, 8th Ed. (1963) gave the following example of implied and resulting trust at page 143:
“The best example of a trust implied by law is where property is purchased by A in the name of B, that is to say, A supplies the purchase money, and B takes the conveyance. Here, in the absence of any explanation, facts, such as intention to give the property to B, equity presumes that A intended B to hold the property in trust for him.”
For a dispassionate consideration of this prong, I have given a microscopic examination to the evidence of the respondent’s star/dependable witness, DW2, located between pages 142 – 145 of the record. A precise of his oral testimony is disobedient to equivocation. He testified that, the respondent purchased the interest of H.E.S. which the Executors and Trustees of late T.A. Doherty agreed to lease to it for a total sum of N80,000 as consideration. The appellant was the legal adviser to the respondent and H.E.S. The respondent accepted the appellant’s advice to take the lease in his name and grant a sublease to it since it was a foreign company that could not take a lease beyond a period of 25 years. DW2 concluded in his evidence-in-chief that: “The plaintiff [appellant] was just holding it in trust for us”. In keeping with the tenet of the procedural law, DW2 was subjected to a rigorous cross-examination as manifest in his evidence at page 145 of the record. Curiously, the appellant, who doubled as counsel and party, centred his cross-examination on the nature of the property and status of the witness in the respondent’s company.
There is no gainsaying the fact that, in our adversarial system of adjudication, the object of cross-examination is to test the credibility of an opponent’s case. It is meant to deflate and discredit the evidence-in-chief of a witness. It has the potential to perforate an opponent’s case and enhance that of the cross-examiner. It is used to test the veracity of a witness. It is the yardstick with which to measure the truth in evidence-in-chief of a witness. It affords the judex the sufficient opportunity to watch and assess the credibility and reliability of a witness by watching his demeanour in the witness box, see Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 466; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Adama v. K.S.H.A. (2019) 16 NWLR (Pt. 1699) 501; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. It has been described as a “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, J.S.C. Hence, any evidence elicited from the cross-fire of cross-examination, are, in the eyes of law, potent and run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones proffered in examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321. Indubitably, cross-examination occupies an Olympian position in our corpus juris especially in the adjectival law.
It is startling that, the appellant’s counsel, in his infinite wisdom, failed/neglected to cross-examine the witness on the critical and decisive issue: the appellant holding the property in trust for the respondent. It is settled law, that where a party fails to cross-examine a party on a point, he is deemed to have admitted it, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 181) 338; Nwokocha v. A.G, Imo State (2016) 8 NWLR (Pt. 1513) 141; Olowu v. Building Stock Ltd. (2018)1 NWLR (Pt.1601) 343. Thus, the caustic consequence of the appellant’s neglect to cross-examine DW2, on the crucial piece of evidence, id est, that he held the property in trust for the respondent, is an undiluted admission of it. It flows that the appellant’s failure to cross-examine the witness on the pungent evidence, which snowballed into admission, displaces the learned appellant’s counsel’s seemingly alluring submission on the point.
To start with, in the sight of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, J.S.C.;UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499;Orianzi v. A.G., Rivers State(2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.
It admits of no argument that, the failure of the appellant, qua counsel, to cross-examine the DW2 on the telling evidence of what transpired between the contending parties occasioned a corrosive effect on his already limping case. The appellant, qua counsel, neglected, to the peril of his case, the imperatives of cross-examination which were chronicled above. In essence, the appellant disarmed himself of the necessary “lethal weapon”, in the form of cross-examination, which he would have harnessed, through the advocative prowess and dexterity of counsel, to counter the damaging and damning evidential effects of DW2’s evidence. The circumstances of the case, which transfigured into the appeal, fall squarely within the firmament of resulting or implied trust whose import was x-rayed above. The evidence, which the appellant made a total admission of, amply, evinces the presumed intention of the respondent, anchored on the operation of law, that the appellant was its trustee in the head lease of the disputed property. The respondent was the undisputed cestui que trust/use of the property that was the res/subject matter of the leases.
The equitable doctrine of trust disowns and frowns on unconscionable bargain, unjust enrichment and unwarranted betrayal of confidence. It is the soul and conscience of human existence. It lubricates human relationships. It compels one to keep faith with undertaking/promise in the society. Those in legal relationship, like contract, must learn to guard and husband trust jealously and faithfully as its betrayal is fraught with caustic consequences. Incontestably, the doctrine of trust bestowed/invested on the respondent, the enviable status of beneficial owner – an owner who enjoys completely or all the rights and privileges legally possible for an owner to have/possess in respect of the leased plot, see Alli v. Ikusebiala (1985) 1 NWLR (Pt. 630 at 640. On this premise, the lower Court acted ex debito justitiae when it found, at page 178 of the record, that the respondent “is the true beneficial owner of the property” and “the claimant holds in trust the property for the defendant”. Flowing from the brief anatomy on trust, conducted in tandem with the law, the finding did not, in the least, constitute an insult to the law to warrant its being mowed down by an unbiased sword of this Court. Contrariwise, I accord it a wholesale affirmation. The proper invitation of the equitable doctrine of resulting trust, with due respect, exposes the poverty of the learned appellant’s counsel’s dazzling argument on this prong. It is lame.
Another grudge, of course the last, nursed by the appellant pertains to the grant of the respondent’s relief of specific performance. To begin with, specific performance signifies “the rendering as nearly as practicable of a promised performance through a judgment or decree; a Court ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate as when the sale of real estate or a rare article is involved. In essence, the remedy of specific performance enforces the execution of a contract according to its terms”, see BFI Group Corp v. B.P.E (2012) 18 NWLR (Pt. 1332) 209 at 244 per Fabiyi, J.S.C.
The remedy of specific performance is a child of the Court of equity, id est, it derives its pedigree from the Court of equity. In other words, it is an equitable discretionary remedy grantable pursuant to the judicial discretion which must be exercised judicially and judiciously, not arbitrarily or capriciously. It is an order which is resorted to for breach of executory contracts, mostly in sale or lease of land owing to its usually special and peculiar value. It is granted to a successful litigant constraining the losing party to carry out the agreement which he entered into with a successful litigant. The Court decrees it in circumstances when the common law relief of damages is grossly inadequate to compensate a purchaser or lessee. Before it is ordered, a Court takes into consideration the balance of competing rights/interests of parties in the contract. It is not granted where it will inflict hardship on an opponent, the contract is invalid or lacks consideration or the lease has expired in that, equity follows the law. It is decreeable against government, see Universal Vulcanizing (Nig.) Ltd v. I.U.T.T.C (1992) NWLR (Pt. 226) 388; Anaeze v. Anyaso (1993) 5 SCNJ 151; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (Pt. 938) 59; Help (Nig.) Ltd v. Silver Anchor (Nig.) Ltd. (2006) 5 NWLR (Pt. 972) 196; Ifeta v. S.P.D.C (Nig.) Ltd (2006) 8 NWLR (Pt. 983) 585; Ezenwa v. Oko(2008) 3 NWLR (Pt. 1075) 610; Ohiaeri v. Yusuf (2009) 6 NWLR (Pt. 1137) 207; Best (Nig.) Ltd v. B.H. (Nig.) Ltd (2011) 5 NWLR (Pt. 1239) 95; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Olowu v. Building Stock Ltd (2018) 1 NWLR (Pt. 1601) 343; Aderonpe v. Eleran (2019) 4 NWLR (Pt. 1661) 14. Where a person denies ownership of title by a party, specific performance cannot be ordered in favour of that person because, that party cannot give what it does not have, based on the doctrine of – nemo dat quod non habet, see Ziregbe v. Eyekpimi (2020) 9 NWLR (Pt. 1729) 327.
It is discernible from the evidence on record, the bible of the appeal, that the feuding parties were consenus ad idem on a further sublease of the property for 25 years at the expiration of the first sublease, which ceased in 2000, by the effluxion of time. Evidence disclosed that the respondent furnished the consideration of the then whopping sum of N80,000 to the H.E.S. which was to be the original lessee. These pieces of pungent evidence were unchallenged since they were not controverted. In essence, the contract between the warring parties was not plagued by any vitiating elements. It was a valid and viable contract. Equity follows the law, see Bulet Int’l (Nig.) Ltd. v. Olaniyi (2017) 17 NWLR (Pt. 1594) 260; Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355. Thus, the equitable maxim, equity follows the law, was not eroded or denigrated in any manner. Parol evidence on record revealed that the property, the lease of which is the casus belli in the suit, was/is located at a choice area with a charming and princely sum/value. It stems from this impregnable evidence that damages would not be adequate recompense for the respondent vis-a-vis the lease of the property. As already noted, the appellant was a trustee of the respondent and, in that wise, would not be victim of any hardship. To my mind, in the presence of these circumstances, consolidated by strong evidence, there was compelling need for a decree of specific performance– directing the appellant to execute his promise to grant a further sublease of 25 years over the property to the respondent. Equity imposes a duty to fulfill an obligation. Equity looks on that, as done which ought to be done – Justicia viltus in ut at perfectus quod futures pertectus, see, Eze v. Gov., Abia State (2014) 14 NWLR (Pt. 1426) 192; Mamonu v. Dikat (2019) 7 NWLR (Pt. 1672) 495. This is a classic instance for the invocation of these maxims of equity. In effect, the lower Court did not, at all, desecrate the law when it exercised its judicial discretion in favour of the respondent by dint of grant of specific performance of the contract of the sublease. It exercised its discretion judicially and judiciously, not arbitrarily, maliciously or capriciously to earn damnation from this Court. I endorse, in toto, the lower Court’s finding on the relief for specific performance.
Flowing from the expansive legal expositions on resulting trust and specific performance, the respondent proved its counter-claim before the lower Court. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. The lower Court’s finding on proof of the counter-claim is an impeccable one. The legal dissection on the resulting trust and specific performance, with due deference, clearly, displaces and drowns the learned appellant’s seemingly sterling contention on the stubborn issue. In the aggregate, I have no choice than to resolve the issue three against the appellant and in favour of the respondent.
On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is bereft of any grain of merit and deserves the reserved penalty of dismissal.
Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 25th April, 2005. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Obande Festus Ogbuinya, J.C.A., made available to me, a draft copy of the lead judgment in this appeal. The appeal was adjudged to be without merit and dismissed. I completely agree and adopt the eloquent reasoning and comprehensive conclusions reached therein as mine.
I also dismiss the appeal and affirm the decision of the lower Court delivered on 25/4/2005.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft, the judgment just rendered by my learned brother Obande Festus Ogbuinya, J.C.A. For the more detailed reasons in the lead judgment, I also dismiss the Appeal. I abide by all the consequential orders.
Appearances:
J. D. Oloyede, Esq. For Appellant(s)
Tani Molajo, SAN (with him, J. O. Abubakar, Esq.) For Respondent(s)