Jackie Phillips Vs Eba Odan Commercial & Industrial Company Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C

Endorsed on the Writ of Summons issued on 9th October, 1986 at the Registry of the High Court of Lagos State, Lagos Judicial Division is the appellant’s (then plaintiff) claim against the Respondent (then defendant):

“The plaintiff’s claim against the defendant is for on order setting aside the Deed of Assignment dated the 7th day of May, 1981 and registered as No. 29 at page 29 in Volume 1839 of the Registry of Deeds kept at the Lagos State Land Registry.”

At paragraph 14 of the Statement of Claim dated 5th December, 1986 and filed on 8th December, 1986 the claim is as follows:

“14. Whereupon the plaintiff claim against the Defendant is a declaration that the Deed of Assignment registered at No. 79 at page 79 Volume 1983 of the register of Deeds kept at the Land Registry in the office at Lagos is null and void and of no effect.”

Pleadings were filed and exchanged. At the trial in the High Court, appellant claimed he did not sign the Deed of Assignment dated 7th May 1981. On the other hand the Respondent claimed that the appellant did sign the Deed of Assignment.

In a reserved judgment delivered on the 14th day of September, 1990 the trial Judge dismissed the appellant’s claim.

The appellant appealed to the court of Appeal, Lagos Division. In its judgment delivered on 8th May 1995, the Lower Court dismissed the appeal and affirmed the decision of the trial High Court. Against the concurrent decisions of the trial High court and the court of Appeal, the appellant appealed to this court on 12 grounds.

In accordance with the rules, learned counsel for the parties filed and exchanged briefs of argument. From the 12 grounds of appeal, learned counsel for the Appellant distilled 12 issues for determination in his brief. The 12 issues are hereunder reproduced:

“(i) Whether the Court of Appeal erred in failing to hold that the Defendant failed to discharge the burden which lay on it to prove that the plaintiff later changed his mind concerning the original agreement.

(ii) Having held that the evidence of the handwriting analyst and DW2 (who claimed to have seen the plaintiff sign the document) did not go to prove that the original agreement between the parties to grant a sub lease was altered for on outright assignment whether the Court of Appeal (Kalgo JCA) erred in law in not resolving the FIRST ISSUE for determination in favor of the plaintiff.

(iii) Whether the Court below erred in holding that the tape recording exhibit p4 was inadmissible in evidence.

(iv) Whether evidence of the Tape Recording needed to be pleaded.

(v) Whether the Court below failed to take into proper account crucial and material facts and factors in arriving at its decision that the plaintiff had executed the document in dispute.