Bello Ogundele & Anor. V. Shittu Agiri & Anor (2009)
LAWGLOBAL HUB Lead Judgment Report
S. MUNTAKA-COOMASSIE, J.S.C
The Appellants herein, who were the plaintiffs at the trial High Court Osogbo claimed against the respondents herein as follows:
(1) “An Order that the judgment of the Hon. Justice S.A. Oloko delivered on 23/1/81 in suit No HOS/1/79 Muibi Agiri & Ors v. Kadiri Otun Imale & 2 others be set aside being tainted with fraud/ or misrepresentation.
(2) The sum of N3Million being the general and special damages for trespass and conversion committed as a result of the said judgment obtained by the Defendants.
(3) INJUNCTION restraining the defendants, their servants or agent from committing further acts of trespass and conversion on the plaintiffs’ farm land at Onifare village via Ila-Orangun in dispute in the said suit No HOS/l/79 Muibi Agiri and 2 others vs. Kadiri Otun Imale and 2 others”
The appellants in paragraphs 8 and 9 of his statement of claim pleaded the facts of the fraud as follows:-
“8. On comparing the contents of the proceedings tendered by the defendants (as plaintiffs) in suit NO.HOS/l/79 as Exhibit B and the certified true copy of the same proceedings obtained at the Archives by the plaintiffs in 1995, it was discovered that the contents were different in that only a part of the proceedings was procured and tendered by the defendants (as plaintiffs) while the remaining and concluding part was fraudulently left out or concealed”.
PARTICULARS OF THE FRAUD OR MISREPRESENTATION
(i) That the defendants (as plaintiffs) fraudulently procured and tendered only the part of the proceedings in the case 1/37 favourable to them and left out the subsequent proceedings in the same case which was not favourable to them.
(ii) That the defendants (the plaintiffs) tendered only the proceedings of 26/6/37, 7/7/37 and 14/7/37 while the subsequent proceedings of 22/9/38, 28/9/30 and 5/10/38 were deliberately left out or concealed.
(iii) That the final judgment in the case was delivered on 5/10/38 and not on 14/7/37 as falsely misrepresented on the version tendered in HOS/1/79 and in their oral evidence in court.
(iv) That the defendants (as plaintiffs) know or ought to know that’ after the proceedings of 14/7/37 there were further proceedings in the Native Court case involving an order of reopening of the case by the then “D. O” on 22/9/38 and further order of Inspection before judgment was finally given on 5/10/38 as they fully participated in the proceedings. They intentionally mis-represented the facts to the court.
(v) That the defendants (as plaintiffs) deliberately procured the part of the proceedings favourable to them to enable them obtain judgment in their favour thereby deceiving and misleading the court in the said suit HOS/1/79,
(vi) That if the full record of proceedings of the Native court case had been tendered, the decision of the court in suit No, HOS/1/79 would have been different”.
“a) The whole Native Court proceedings in the case 1/37 referred ‘to above is part of the records of proceedings of Native Courts in the former Western provinces of the then colony and protectorate of Nigeria which are now kept in the Archives at Professor H.A, Oluwasanmi Library at the O.A.U. Ile-Ife”,
In response to these averments, the respondents in paragraph 8 of their statement of defense pleaded as follows:-
“8, As regards paragraphs 8 (i) (ii) (iv) (v) (vi), 9, 11, and 12 of the statement of claim, the defendants aver that the plaintiffs have raised similar issues in their motion dated the 24th day of April 1995 filed on their behalf by Chief Oye Esan at the Court of Appeal Ibadan and to which the defendants filed a counter affidavit in similar vein to their statement of defense in this suit and which motion has been adjourned for hearing till the 21st day of May, 1997. The defendants will rely on the motion paper and the affidavit in support as well as the counter-affidavit and all relevant papers at the trial of this action”
At the trial, both parties called their respective witnesses. The gist of this case is hat there was a dispute over the land in dispute between the families of the parties in his case in 1937 before the ILA Native Court. On 14/7/37 judgment was delivered whereby the defendants, the predecessors of the appellants before that court, were ordered to pay 20 shillings and to vacate the land.
However in 1938 the matter was ordered to be re-opened and a joint inspection of the land was ordered whereby both parties agreed to a common boundary and the court’s inspection team planted “peregun” tree at the agreed boundary to demarcate the and, thereafter a judgment was finally delivered in terms of the mutual agreement. In 1979, the respondents filed a fresh action for declaration of title to the land, including the part that belonged to the appellants, and tendered the judgment delivered on 4/7/37 without averting the court with the proceedings that terminated in 1938.
Based on the judgment of the Native Court delivered on 14/7/37. Hon. Justice Oloko gave judgment for the respondents. The appellants appealed against the judgment but later abandoned it. Thereafter, the appellants filed this suit and claimed the reliefs earlier set out in this judgment. The judgment delivered in 1938 was tendered as Exhibits B and B1. The learned trial judge, Justice R. O. Yusuf gave/judgment for the plaintiffs; following the judgment of this court in Talabi v. Adeoye (1972) 8 – 9 SC 20 at 40, the learned trial Judge held as follows:-
“By this authority and contrary to Fabunmis submission, the plaintiff is on a firm wicket when it commenced this fresh action to challenge the judgment and after obtaining the complete record of the Ila-Orangun proceedings in 1/37 in 1995. The writ here was obtained in 9/8/86. The plaintiffs indeed were delighted. Thus the plaintiff employed the proper procedure to challenge the judgment procured by suppression of material fact and/or misrepresentation and this I hold amount (sic) to a fraud practiced by one of the parties on the court and to this extent that judgment cannot stand. It is hereby set aside” .
The respondents appealed against this judgment to the Court of Appeal, hereinafter called the lower court. The lower court allowed the appeal.
On the issue of fraud, the lower court held as follows:-
“A critical examination of the supportive evidence albeit disjointed, adduced on behalf of the respondent on the fact in issue which is “fraud” is not only bare but also inadequate to meet the standard of proof which is very high. Thus the respondents rightly spelt out some particulars in their paragraph 8 of the statement of claim in the trial court. Those particulars were however in no way articulated in the evidence of the Pw1 and Pw2. Thus all the Pw1 said is that he was in court to tender exhibits Band Bl without more. Whereas the averment is that the Hezekel Oluwasanmi Library O.A.U. Ife from where they were procured now serves as Archives for records of proceedings of Native Courts in the defunct Western provinces of Nigeria.
The Pw2 simply alleged that the judgment of Ila Native Court marked Exhibit 2 is fraudulent. I am of the view that there is need for more aspersion to stigmatise that exhibit fraudulent. The respondents averments (supra) are in essence at variance with the supporting evidence …”
In conclusion, the lower court held thus:-
“Apart from this observation, there are glaring omissions between exhibits B and B1 (being respectively the manuscript and type written scripts) which the learned trial judge made use of in his judgment. Without going into further details on discrepancies on exhibits B and Bl, which were considered accurate in the lower court, I am of the view that they are replete with suspicions and largely incoherent. In these circumstances I am of the strong opinion that the high standard of proof to establish fraud which is beyond reasonable doubt was not established in the trial court. There was therefore with due regard, no basis at all for the learned trial Judge to order setting aside the judgment in Suit No. HOS/1/97, on the averment of unsubstantiated fraud”.
Being dissatisfied with the judgment of the lower court, the appellants have appealed to this court. In accordance with the rules, both parties filed and exchanged their respective briefs or argument. The appellants in their Brief of argument dated 7/9/04 formulated two issues for determination as follows:-
(1) Whether the lower court was right to have based its decision on proof of fraud upon extraneous matters.
(2) Whether the lower court was right in its findings and decisions that fraud was not proved,
Whilst the respondents in their brief of argument dated 19/6/08 formulated three issues
for determination as follows:-
(i) Whether or not the decision of the court of Appeal that the Appellants did not establish beyond reasonable doubt that the Respondents obtained judgment in suit NO.HOS/1/79, namely Muibi Agric and Ors vs Kadri Otun Imole and Ors by fraud or misrepresentation was based on extraneous matter raised suo-motu by the Court of Appeal.
(ii)Whether or not the Court of Appeal was right in its decision that the Appellants do not establish by evidence the averments of fraud pleaded in paragraphs 8(i)-8(ii) of the appellants averment statement of claim.
(iii) Whether the Court of Appeal was right in setting aside the finding of the trial court that the Respondents obtained judgment in Suit NO. HOS.l.79 and holding that the Appellants did not establish fraud against the Respondents as pleaded in their statement” .
At the hearing of this appeal, the learned counsel for the appellants adopted his brief of argument and urged this court to allow the appeal.
In respect of the issue one formulated by the appellants, it was the submission of the learned counsel that the judgment of the lower court was based on extraneous matters, to wit – the custody of exhibits Band B1, the alleged discrepancies between Exhibits B and B1 which are issues not joined by the parties in their pleadings and not raised by either of the parties. These are issues raised suo-motu, and the parties were not given the opportunity of being heard on them, thus occasioning a miscarriage of justice. Plethoras of authorities were cited amongst which are:-
(i) Olusanya v. Olusanya (1983) NSCC97 at 102.
(ii) Iyaji V. Eyigebe (1987) 7 SCNJ 148 at 156.
The learned counsel submitted that the lower court was wrong with the strict manner it construed the proceedings of a Native Court, which requires a greater latitude and broader interpretation. He cited the cases of Adofin v. Oni (2001) 1, SCNJ 13 at 149, and Ezanya v. Okeke (1995) 4 SCNJ60 at 76.
On the second issue, it was the submission of the learned counsel that, the fact of the concealment of the Native Court’s judgment delivered in 1938 from the trial court in suit No. HOS/1/79 is sufficient to prove the fact of the fraud committed; or the act of the false misrepresentation that gave birth to the judgment in suit No. HOS/1/79.
Learned counsel to the respondents at the hearing also adopted his brief of argument and urged this court to dismiss the appeal. on the 1st issue, it was the submission of the learned counsel that an appeal is by way of re-hearing and the court of Appeal was entitled to re-evaluate evidence before the trial court where the trial court fails to properly evaluate the evidence adduced before it. It referred to paragraph 7 of the statement of defence and submitted the issue of custody, authenticity and discrepancies between the exhibits were not issues raised suo-motu, the case of Dairo v. U. B. N Plc (2001) 11 MJSC 74 at 93 was cited.
On the second issue, it was the submission of the learned counsel that the lower court was correct in holding that the ‘fraud’ was not proved. It was his submission that fraudulent conduct must be distinctly alleged and distinctively proved; fraud is certainly not allowable to be inferred from the facts of the case. The cases of:-
(1) Davy V. Garrelt (1878) 7 CH. 0.473 and
(2) David Fabunmi v. Abigail Agbe (1985) 3 SC28 at 76 were cited in support.
Learned counsel then referred to the evidence of Pw1 and Pw2 and submitted that the evidence was not sufficient to prove fraud; which is a criminal allegation. It is to be noted that no argument was proffered in support of the 3rd issue formulated by the respondent that issue is accordingly struck out. This is what had transpired in this appeal.
Before I proceed with this judgment it is worthy of note to state that the respondents challenged the competence of grounds 1 and 3 of the Notice of appeal on the ground that they were grounds of mixed law and fact, in respect of which the appellants did not obtain the leave of either the lower court or this court. file therefore urged this court to strike out the said grounds of appeal.
I have read the preliminary objection and carefully perused grounds land 3 of the Notice of appeal, and applying the principles enunciated by this court in Ogbechie v. Onechie (1986) 2 NWLR (pt. 23) 484 at 491, I find no difficulty in holding that the resolution of these grounds of appeal will reveal a mis-application of the law to the facts already proved and admitted at the trial court, I therefore hold that the grounds complained against are grounds of law and not of mixed law and facts hence no leave of any court is required to file them before this court. The objection being misconceived is hereby over-ruled.
In the determination of this case, I am of the humble view that the sole issue that ails for determination in this appeal is-
“Whether the respondents made a full disclosure of the proceedings of the lIa-Native Court before the High Court of Justice in suit No. HOS/1/79, that led to the judgment delivered in the said suit by the Hon. Justice S. A. Oloko on 23/1/81.. “.
This is so, because if the full proceedings of the final judgment was not made available to the court in suit No. HOS/1/79 then something might have gone wrong. At this, juncture, it is necessary to reproduce the contents of the proceedings of the lIa-Native Court.
On the 14/7/37, the proceeding of the court reads:-
“Judgment: fined to lagbe deft 20 N for destroying the peregun trees in the boundary and to leave Yesufu Agiri land and let where the peregun trees of the 13years be remained as boundary and to pay cost Obale. His money.
14:7:37.
p. a. 20 – CR. No. 9821 of 14:7:37 case to be reopened and the boundaries of Yusufu Agiri’s farm land to be marked if he dissatisfied he P.T.O. Made appeal to Orangui’s court and thence through the usual channels.
See page 33.
Rev. Willes D.O”.
22:9:37.
Apparently, the decision of 14:7:37 was not final as to the boundary of the land in dispute. There was an order to re-open the case if there was no appeal to Orangun’s court. There was no appeal to Oraguns court, and in compliance with the order of 14:7:37, the case was re-opened in 1938, and it was recorded as follows:-
“suit No 1/37
Re-open by the D.O’s Order Judgment was given on 5/10/38… Judgment for the defendant hold the left from the Peregun planted to boundary and Tolagbe on the right.
SGD.
Obale His Umaen.
5/10/38”.
It is therefore not in doubt that the final judgment as to the extent of the land of each of the parties was given on the 5/10/38 and not the order of 14:7:37.
In the case instituted by the respondents in suit No HOS/1/79 only the proceedings of 14:7:37 was produced before the court which led to the judgment delivered by the Hon. Justice S. A. Oloko. In this respect, the learned trial judge held as follow:-
“The Commission/suppression of the highlighted proceedings drastically misled or misrepresented the outcome of the Ila proceedings to the court in HOS/1/79 and what is more, the court relied on this to come to the conclusion”.
With the greatest respect I am of the humble view that the trial court’s findings on this issue were correct. If this proceedings of 5/10/38 has been produced before the court in suit No. HOS/1/79, the judgment of the Hon. Justice S.A. Oloko would have been different. This is a clear case of concealment or false misrepresentation. I quite agree, with all sense of responsibility, with the submission of the learned counsel to the appellant that the lower court based its judgment on extraneous matters to wit – issue of custody, authenticity and/or discrepancies between exhibits B and B1. These are issues not raised by the parties. The lower court was therefore in error to have raised them suo-motu without affording the parties the opportunity to address it on them. See the cases of:-
(a) Olusanya v, Olusanya Supra at 139;
(b) Kuti v. Jibowu (1972) 1 All NLR (pt. 11) 80/192; and
(c) Ajo v. Ashiru (1973) 1 All NLR (pt.11) 51/63.
At any rate, Exhibits B and Bl were dully certified by the authority that was in lawful possession.
The respondents in paragraph 7 of the statement of defence only claimed ignorance of their existence. Neither was any evidence led to show that these exhibits were forged. It is trite law that oral evidence is inadmissible to contradict the contents of a document. In other words oral testimony cannot be used to state the content of a document. S. 132(1) of the Evidence Act; and no extraneous matter can be imported into the record of proceedings. See Union Bank of Nigeria Ltd v. Ozigi (1994) 3 NWLR (pt.333) 385; see also Nnubia v. A.G. Rivers State (1999) 3 NWLR (pt. 593)82.
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 then words from the vocal cord of man as they are neither transient nor subject to distortion and miss-interpretation but remain permanent and indelible through the ages. See:-
- Aiki v. Idowu (2006) 9 NWLR (pt 984) 50/65 per Alagoa JCA,
- C.D.C. (Nig) Ltd v. SCOA (Nig) Ltd (2007) 6 NWLR (pt. 1030) 300.
- Ogbelde v. Osijo (2007) All FWLR (pt. 365) 548
What more, exhibits B and B1 are public documents forming the records of the acts of judicial body i.e. Ila Native Court and duly certified in accordance with the provisions of Section 111 of the Evidence Act.
Before I end this judgment, I also wish to comment on the strict interpretation placed on exhibits B and B1 by the court below. Exhibits B and B1 are record of proceedings of Ila Native Court, and as such the court below was in error to have strictly interpreted its proceedings knowing fully well that judges who presided were not legally trained lawyers. This court in the case of Odofin V. Oni (2001) 1 SCNJ 130 handed down the principles to be adopted in interpreting the records of proceedings of a Native or Customary Courts. At page 149 of the report Achike JSC of blessed memory stated the principles thus:-
“In order to appreciate the real effect of the lower courts strong criticism of the statement of the customary court that the respondent “failed to prove ownership of the land in dispute” it is important to stress that greater latitude and broader interpretation must be accorded to decision of customary courts as it is trite that the proceedings in the customary courts are not subject to the application of the Evidence Act. It is important that superior appellant courts in relation to matters relating to customary courts should focus their attention to the substance of the judgments or decisions in those courts rather than the forms. This is so because customary courts be they Area Courts or whatever name they are christened in our judicial jurisdiction are generally presided over by laymen without even rudimentary exposure to legal principles. An Appellate Court should in all circumstances strive to get the bottom of the decision of a customary court. This can only be achieved by considering the input of a decision of a customary court not in fragments or in isolation of excerpts thereof but must be read harmoniously as a whole in order to capture its imports. In other-words when greater latitude is accorded to the interpretation of the decisions of customary court it will be sufficient if such decisions are seen to accord with the view of person of good common sense and reason completely devoid of legalistic encrustments”.
See also Ezeanya v. Okeke (1995) 4 SCNJ 60/76. Where the Supreme Court made the following statement:-
“it is a matter of common knowledge that pleadings were not filed in the Native Courts and consequently the appellate courts have consistently held:-
(i) That it is not the form of an action in a Native tribunal that must be stressed where the issue involved is otherwise clear; it is the substance of such a claim that is the determinant factor.
(ii) Proceedings in a Native Court have to be carefully scrutinized to ascertain the subject matter of the case and the issues raised therein.
(iii) It is permissible to look at the claim, findings and even the evidence given in a native tribunal to find out what the real issue were.
(iv) In dealing with the proceedings from Native Courts, appellate courts must not be unduly too strict with regard to matters of procedure as the whole object of such trials is that the real dispute between the parties should be adjudicated upon.
(v) As long as Native Courts acted in good faith, listened fairly to both sides and gave opportunity to the parties to present their case and correct or contradict any relevant statement prejudicial to their view, they cannot be accused of offending against the rules of natural justice and their decisions on the real issues between the parties ought not to be disturbed without very clear proof that they are wrong”. Per Iguh JSC at Page 76. Finally on this point is the case of Olujiule v. Adeagbo (1988) 2 NWLR (pt. 75) 238 at 251″.
I quite agree with the above principles as enunciated by my learned brothers, Achike and Iguh JJSC, and applying them in the case at hand, have no hesitation in holding that the lower court was in a grave error in the ways and manners it strictly interpreted…The exhibits B and Bl in this matter. It is unnecessary and uncalled for. Finally, I hold that this appeal my lords has merit. The appellants have proved that the respondents falsely misrepresented the proceedings of lIa- Native Court in suit No HOS/1/79 by concealing the final judgment of that court, which led to the judgment delivered by the Hon. Justice S.A. Oloko in 1981. Consequently the judgment of the lower court is hereby set aside and in its place the judgment of the trial court delivered by Hon. Justice R. O. Yusuf on 13th day of October, 1998 is hereby restored. The appellants are entitled to costs both in the court below and this court assessed at N30,000.00 and N50,000.00 respectively.
SC.134/2004