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Owakah V. Rshpda & Anor (2022) LLJR-SC

Owakah V. Rshpda & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This appeal is against the judgment of the Court of Appeal Port Harcourt Division delivered on the 24th day of November, 2010. The Court of appeal gave judgment in favour of the 2nd Respondent but held that the Appellant be paid the sum of N250,000 by the 1st Respondent as compensation for the purchase price paid by the Appellant.

At the trial Court, the Appellant got judgment, the trial Court held that there was valid sale between the Appellant and the 1st Respondent, it therefore ordered for specific performance. 2nd Respondent’s counter-claim was dismissed.

At the trial Court, by the second amended statement of claim of 16th November, 1994, the Appellant claimed as follows:

a) A declaration that the purported sale of the property No. 38 Elechi Street, Mile 3, Diobu, Port Harcourt to the 2nd Defendant, Mrs. Grace Anum. After the executed sales agreement with the claimant registered as No.50 at page 50 in volume 140 in the Lands Registry Part Harcourt is irregular, null and void.

b) An order of specific performance by the Housing and Property Development Authority of Clause 2(v) of the Sales Agreement dated 23rd August, 1988, the claimant having paid the balance of the purchase (money) or ALTERNATIVELY

The sum of N1 million as special and general damages as follows:

a) Deposit N36,800.00

b) Interest at 5% per annum until judgment.

GENERAL DAMAGES: N936,200.00

After service of the writ of summons, the defendants now Respondents in this appeal filed their separate statements of defence, the 2nd Respondent filed a counter-claim as follows at page 70 of the records of appeal:

  1. A declaration that the 2nd defendant is the lawful owner and as such entitled to the statutory right of occupancy in and over the parcel of land with building situate at No. 38 Elechi Street mile 3 Diobu Port Harcourt.
  2. The sum of N200,000.00 being and representing general damages for the trespass committed on the property before and during the pendency of this suit.
  3. Perpetual injunctions restraining the plaintiff, his agents, privies, assigns or anybody purporting to claim through or in trust for him from tempering with or otherwise disturbing the peaceable ownership and possession of the property in disputeby the 2nd defendant/counter-claimant.

The land in dispute is located at No. 38 Elechi Street, Mile 3 Diobu, Port Harcourt. At the lower Court, the claimant/Appellant’s case was that he purchased the property in dispute from the 1st Respondent, (Rivers State Housing and Property Development Authority), and that he paid the amount which the 1st Respondent fixed for the property, and that he entered into an agreement which was eventually registered.

The property in dispute is one of the abandoned properties vested in the 1st Respondent to sell to members of the general public. The case of the 1st Respondent at the lower Court is that as a Government agency with the responsibility to sell the abandoned property, it caused publication to be made in the National Newspapers that the abandoned properties were offered for sale, and that the 2nd Respondent following the publication, purchased the property. On the part of the 2nd Respondent, at the trial Court, her argument was that at all material times, she lived in the property in dispute with her family as tenant paying rent to the 1st Respondent, and that she later became the owner in possession.

After pleadings were filed and exchanged, the parties called witnesses and tendered various exhibits. At the conclusion of trial, the learned trial judge gave judgment in favour of the plaintiff. Aggrieved by the decision of the trial Court, the two Respondents filed their appeal at the Court of Appeal, Port Harcourt Division. The lower Court in its judgment partly allowed the appeal and held that the 2nd Respondent is the lawful owner of the property in dispute. Dissatisfied with the decision of the lower Court, the Appellant filed a notice of appeal to this Court containing 5 grounds of appeal on the 2nd day of February, 2011.

Learned counsel E.N Duru Esq., for the Appellant filed the Appellants brief of argument on the 6th June, 2011, counsel nominated 5 issues for determination. Learned counsel also, filed reply brief on the 2nd May, 2014, it was deemed as properly filed and served on the 4th June, 2014. The issues nominated for discourse by the Appellant are as follows:

  1. Whether the Court of appeal is right to hold that the 2nd respondent was a bona fide purchaser of the property in dispute for value without notice when the property and the estate had already passed to the appellant.
  2. Whether Exhibits AG and AH were rightly admitted without regard to the provisions of the Evidence Act and if not, whether their admission occasioned miscarriage of justice.
  3. Whether the Court of appeal was right in holding that the 2nd respondent is the lawful owner of the property in dispute when the sale of the property in dispute to the appellant was not set aside or revoked
  4. Whether having regard to the fact that the appellant paid complete purchase price for the property in dispute and sales agreement was executed by appellant and the 1st respondent, the Court of appeal was right in refusing to sustain the order of specific performance made by the trial Court.
  5. Whether the Court of appeal was right in awarding compensatory damages of N250,000.00 to the appellant which appellant never sought.

On the other hand, learned Counsel for the Respondents Damian O. Okoro Esq., filed the Respondent’s brief on the 28th day of August, 2018 and nominated 3 issues for the determination, the issues are also reproduced as follows:

  1. Was the Court below wrong to hold that 2nd respondent was the lawful owner of the property in dispute as a bonafide purchaser for value without notice of the appellant’s title? (Grounds 1 and 2)
  2. Was the Court below wrong to admit Exhibits AG and AH in evidence. (Ground 2)
  3. Was the Court below wrong to award damages to the appellant rather than uphold his claim for specific performance. (Grounds 4 and 5)

SUBMISSIONS OF COUNSEL FOR THE APPELLANT

ISSUE ONE

Learned Counsel for the Appellant submitted that the 1st and 2nd Respondents lost the case at the trial Court because they failed to prove the alleged fraud committed by the Appellant during purchase of the property in dispute.

Learned Counsel submitted that the pleaded defence of the 1st and 2nd Respondents as contained in paragraphs 2, 2 (1) and 6 of the 1st and 2nd Respondent’s amended statement of defence and paragraph 2 of 2nd of Respondent’s statement of defence and counter-claim cannot co-exist in this case with the fresh and non-pleaded issue of bona fide purchaser for value without notice of Appellant’s equitable interest.

Learned counsel submitted that the lower Court was wrong to have allowed the 2ndRespondent to prevaricate and begin to make a new case different from the one which she made at the trial Court. The contention of the 2nd Respondent at the trial Court is that she purchased the property in dispute because the earlier sale of the property in dispute to the Appellant was not legitimate and she failed to prove that in evidence.

Learned Counsel contended that the findings of the lower Court that the 2nd Respondent was a bona fide purchaser for value without notice of the equitable interest of the Appellant was erroneous as the findings did not follow the laid down legal principles applicable before the defence of a bona fide purchaser for value without notice could be sustained.

Learned Counsel submitted that from the available evidence on record, the 2nd Respondent had notice that the 1st Respondent had sold the property in dispute to the Appellant before she completed the purchase of the property in dispute.

Learned Counsel submitted that assuming without conceding that Exhibits AG and AH were properly admitted by the lower Court, Exhibits AG and AH without more do not support the findings of the lower Court that the 2ndRespondent is a bona fide purchaser for value without notice of Appellant’s equitable interest in the property in dispute, learned Counsel relied on the decision in ANIMASHAUN V. OLOJO (1990)6 NWLR (Pt. 154) Pg.111 at 114, he also relied on IDEHEN V. OLAYE (1991) 5 NWLR (Pt. 191) Pg. 344 at 354-355, and BANK OF THE NORTH LTD V. BELLO (2000) 7 NWLR (Pt. 664) 224 at 254-255.

Learned Counsel submitted that the 2nd Respondent did not lead evidence to prove that she conducted search in the lands registry before payment of purchase price to the 1st Respondent, counsel argued that the 2nd Respondent cannot be heard to complain that she had no notice of the agreement between 1st respondent and the Appellant. Learned Counsel therefore contended that the findings of the lower Court that the 2nd Respondent was a bona fide purchaser for value without notice of the equitable interest of the Appellant was erroneous, he further submitted that the lower Court did not follow the laid down legal principles applicable before the defence of purchaser without notice could be sustained.

See also  Daniel Dibiamaka & Ors. V. Prince O. Osakwe & Ors. (1989) LLJR-SC

Learned Counsel referred to the incidents and dates cited from 17th October, 1983to 28th March, 1990 to contend that the 2nd Respondent had notice that the 1st Respondent sold the property in dispute to the Appellant. Counsel therefore submitted that the 2nd Respondent had actual and constructive notice of the sale. Counsel again relying on JIWUL V. DIMLONG (2003) 9 NWLR (Pt. 824) 154 at 185 submitted that the purchaser would be able to plead absence of notice only if he made all usual and proper inquiries and still found nothing to indicate the existence of equitable interest. Counsel contented that the 2nd Respondent is not an innocent purchaser for value without notice and urged this Court to hold that the conclusion reached by the lower Court was erroneous and further urged that the issue be resolved in favour of the Appellant.

ISSUE TWO

Learned counsel for the Appellant submitted that the lower Court was wrong to have admitted exhibits AG and AH without considering whether the admitted exhibits satisfied the provisions of Sections 111 and 112 of the Evidence Act.

Learned counsel submitted that the evidence on record shows that DW2 never tendered the original Newspapers before the trial Court and the lower Court wastherefore wrong to have held that DW2 tendered the original Newspapers in evidence.

Learned counsel said the argument of learned counsel for the Respondents that the trial judge saw the original bound Newspapers and suo motu stood down the matter and ordered the witness to go and make photocopies of the papers is misleading and not substantiated, and that it is also not borne by the records. Learned counsel added that if the lower Court had compared the evidence on record carefully alongside the misleading interpretation of same by the Counsel for the Respondents, the lower Court would not have admitted Exhibits AG and AH.

Learned counsel also submitted that going by the provisions of Section 75 of the Evidence Act and the issue of admissibility of public documents, the finding of the lower Court was erroneous. Learned counsel finally submitted that the lower Court fell into grave error by admitting Exhibits AG and AH by its failure to consider the provisions of Sections 111 and 112 of the Evidence Act. Counsel submitted that issue of admissibility of documents is governed by Sections 111 and 112 of the Evidence Act and not Section 75 of the Act, Counsel relied on the decision in OKONJI V. NJOKANMA (1999) 14 NWLR (Pt. 638) at 267.

ISSUE THREE

Learned Counsel for the Appellant submitted that since the contract of sale had been concluded between the 1st Respondents and the Appellant, the 1st Respondent could no longer sell the same property to the 2nd Respondent, he relied on the decisions in AUTA V. IBE (2003) 13 NWLR (Pt. 837) Pg. 247 at 272, OKAFOR EGBUCHE V. CHIEF IDIGO (1934) 1 SCNLR, SANYAOLU V. COKER (1983) 1 SCNLR 168 and UGO V. OBIEKWE (1989) 1 NWLR (Pt. 99) 566.

Learned counsel for the Appellant submitted that it is on record that the Appellant paid complete purchase price for the property in dispute and agreement was executed to that effect. Learned Counsel said on the strength of Exhibit E which is Appellant’s executed sales agreement, the lower Court erred in law in refusing to sustain the order of specific performance made by the trial judge. Learned Counsel therefore urged this Court to resolve this issue in favour of the Appellant against the Respondents.

ISSUE FOUR

Learned counsel submitted that the Court of appeal was wrong to have chosen to compensate theAppellant with the sum of N250,000.00 instead of sustaining the order of specific performance made by the trial Court. Learned Counsel stated that the lower Court did not state in its judgment how it arrived at the finding that the 1st Respondent wrongfully accepted money bill from the Appellant for the offer of the property in dispute on the grounds of which it decided to judiciously and judicially award compensatory damages of N250,000.00. Counsel further submitted that the position of the law on specific performance is clear relying on the decisions in GAJI V. PAYE (2003) 8 NWLR (Pt. 823) Pg. 583, UNIVERSAL VULCANISING (NIG) LTD V. IJESHA UNITED TRADING AND TRANSPORT CO. LIMITED (1992) 9 NWLR (Pt. 266) at 388, EZENWA V. OKO (2008) 3 NWLR (Pt. 1075) Pg. 610. Learned Counsel therefore submitted that the Appellant is entitled to an order of specific performance, he so urged this Court. He urged that this issue be resolved in favour of the Appellant against the Respondents.

ISSUE FIVE

Learned Counsel for the Appellant repeated his submission on issue four, he submitted that the lower Court did not show how it arrived at awarding compensatory damages of the sum of N250,000 in favour of the Appellant against the Respondents. Learned Counsel for the Appellant said the Appellant did not seek for damages, and that the lower Court had no jurisdiction to award general damages since the Appellant did not ask for the relief, he therefore urged this Court to resolve this issue in favour of the Appellant against the Respondents.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS

ISSUE ONE

Learned counsel for the Respondents submitted that the property in dispute was renovated by the tenant pursuant to announcements on radio, thereafter, the property was registered as having no landlord, eventually, the property was officially published to the whole world via Nigerian Tide Newspaper. Learned counsel submitted that both the fact of non-ownership of the property in dispute, its consequent renovation by the residents and the subsequent publications in the print media announcing that it was free for sale to any interested buyer were facts pleaded and proved and indeed admitted in evidence by the weak and evasive responses of the Appellant.

Learned counsel submitted that in all the three public announcements for the renovation of the properties by landlord, registration of all houses without landlords and the invitation to the public to purchase properties including the property in dispute, the Appellant was silent, he did not deny these facts.

Learned Counsel for the Respondents submitted that contrary to the Appellant’s contentions in paragraph 3-42 at page 14 of his brief of argument that 2nd Respondent did not plead the equitable defence of bona-fide purchaser for value without notice, there was ample pleading and concomitant evidence led thereon.

Learned counsel stated that the decision in ANIMASHAUN V. OLOJO (supra) relied by the Appellant is not applicable in this case.

Learned Counsel submitted that the contention of the Appellant that the 2nd Respondent should not have been properly declared owner of the property in dispute because Appellant’s purported title was neither revoked nor his monies refunded to him is not well founded. Learned Counsel for the Respondents submitted that it is not important that the earlier sale to the Appellant must be set aside. Counsel said the title of the 2nd Respondent as a purchaser forvalue without notice is immuned against all allegations against the seller even if fraud is alleged.

Learned counsel finally submitted that the title of the 2nd Respondent acquired as a bona fide purchaser for value without notice is valid. Learned Counsel therefore urged that this issue be resolved in favour of the respondents against the Appellant.

ISSUE TWO

Learned counsel for the Respondents submitted that the Court below was clearly right when it admitted in evidence Exhibits AG and AH. Counsel maintained that these were Newspaper publications properly pleaded and tendered in evidence through their custodian, the chief librarian of the publishers.

Learned counsel said the documents in contention were in custody of one King Osila who was on subpoena. The said King Osila testified as DW2. Counsel further submitted that, DW2 while testifying before the trial Court mentioned that he had original copies of the Nigerian Tide of 11/8/1986 and 20/12/1985. Counsel then sought for the document to be tendered.

Learned counsel submitted that the rejection of the exhibits by the trial judge was illegal and completely unfounded.

Learned counsel submitted that it is the law that where a witness is shown a photocopy of a document and he admits that he authored the original, then the photocopy can be tendered and admitted there and then. Learned Counsel for the Respondents said the same trial Judge who heard the librarian testify as DW2 and saw him tender the original bound volumes of the New papers, turned round to reject the same documents. Counsel said this is surprising, he said the conclusion reached by the learned trial Judge on the exhibits was perverse and led to substantial miscarriage of justice to the 2nd Respondent. Counsel relied on the decision in KASSIM V. STATE (2017) LPELR-42586 (SC) to submit that the trial Court had no business looking for official title and name of the certifying officer when he was in the witness box before the Court. Counsel said the lower Court intervened and saw that they were properly pleaded, the conclusion reached by the Court at page 327 & 238 of the records of appeal, the lower Court observed that the documents were admissible, relevant coming from proper custody relying on OGBUNYIYA V. OKUDO (1979) 3 LRN 3181 UKPABI V. TONTI (2000)FWLR (Pt. 29) Pg. 2481. Learned Counsel therefore urged this Court to resolve this issue in favour of the Respondents against the Appellant.

See also  E. A. Adebo V. Saki Estates Limited & Anor. (1999) LLJR-SC

ISSUE THREE

Learned counsel for the Respondent submitted that having found that the 2nd Respondent was a bona-fide purchaser for value without notice, the lower Court could not have contradicted itself by upholding Appellant’s plea of specific performance.

Learned counsel submitted that the trial judge was in grave error which error occasioned miscarriage of justice when he gave judgment in favour of the Appellant in spite of the abundant evidence against the Appellant.

Learned Counsel submitted that the Appellant knew very well that specific performance was not enforceable in his favour, he sought for an alternative remedy from his vendor who had testified in favour of the sale to the 3rd party who paid valuable consideration. Counsel relied on the decision in TAYLOR V. ARTHUR 12 WACA 179 to contend that where a defendant shows that he had sold the property in question for valuable consideration to a third party no performance could be enforced. Appellant failed to make a case for specificperformance, he made a case for refund of the monies he paid, he was therefore entitled to a refund for an incomplete sale of the property in dispute. Counsel relied on the decision in FRANCIS V. IBITOYE (1936) 13 NLR 11 at 12.

Learned counsel submitted that the lower Court rightly refused to sustain the grant of the order of specific performance since the 2nd Respondent’s case was within the principle which rendered the specific performance anaemic at his behest. Counsel said the Appellant lost nothing except his money which the lower Court restored to him. Learned counsel said order for specific performance could only be made where remedy for damages would be inadequate at common law, citing EZENWA V. OKO (2008) 3 NWLR (Pt.1075) 610. Learned Counsel for the Respondents said the lower Court found that order for compensation was adequate upon the dispassionate appraisal of the facts.

Counsel referred to BUSBY V. ACQUAH 14 WACA 574 and Snell’s Principles of Equity to contend that nothing can be clearer than that a purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right isentitled to priority in equity as well as in law. In such a case, equity follows the law, the purchaser’s conscience is in no way affected by the equitable right. Where there is equal equity the law prevails. Counsel submitted that the lower Court was right in awarding damages instead of affirming the illegal order of specific performance erroneously granted by the trial Court.

Learned Counsel urged this Court to resolve the three issues in favour of the Respondents, dismiss the appeal and affirm the judgment of the lower Court.

APPELLANT’S REPLY

In the Appellant’s reply brief, the Appellant apparently repeated the submissions in his brief of argument. The main purpose of reply brief is to answer any new points arising from the Respondent’s brief. It is filed when an issue or law or argument in the respondent’s brief calls for reply. A reply brief cannot be used to strengthen the Appellant’s brief by way of repeating the arguments made in the Appellant’s brief. Where there are no new points in a Respondent’s brief a reply by the Appellant becomes totally unnecessary. The instant reply brief does not address new issues. I willtherefore proceed to determine the appeal on the submissions of the contending parties.

RESOLUTION

In my humble view, the issues formulated by the learned Counsel for the Appellant in this appeal can conveniently be collapsed into or accommodated by the issues crafted by the Respondents. I will therefore adopt the Respondents’ issues as the issues apt for discussion in the determination of this appeal.

The Appellant is challenging the decision of the lower Court where the Court decided that the 2nd Respondent is a bona-fide purchaser of the property in dispute. The Appellant is therefore urging this Court to hold otherwise and reverse the decision of the lower Court, and restore ownership of the subject property in him as bona fide owner.

The law is settled that to succeed in a case of declaration of title to land, a party must plead and prove the method by which he acquired the said title, ownership of land cannot be claimed by a party without establishing ownership. See FASORO VS BEYIOKU (1988) 2 NWLR (Pt 76) 263, NWOFOR VS NWOSU (1992) 9 NWLR (Pt 264) 229, ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt 424) 2521 UNITED BANK FOR AFRICA PLC V. AYINKE ​(2000) 7 NWLR (Pt 663) 831, OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265. A claimant must satisfy the Court on the following: (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of the title claimed. See OBAWOLE V. COKER (1994) 5 NWLR (Pt 345) 4161, ADESANYA V. ADERONMU (2000) 9 NWLR (Pt 672) 370 at 3821, EDOHOEKET V. INYANG (2010) 7 NWLR (Pt 1192) 251, OBINECHE VS AKUSOBI (2010) 12 NWLR (Pt 1208) 383.

In her statement of defence and counter-claim at paragraphs 5 to 91 found at pages 60-61 of the records of appeal, the paragraphs have not only proved the ownership of the 2nd Respondent but also narrated how she legally acquired the property in dispute through the 1st Respondent. The relevant paragraphs are reproduced as follows:

  1. “The 2nd defendant started living in the said property in 1972 as tenant and during the tenure of police commissioner Fidelis Oyakhilome as Governor of Rivers State, precisely in 1985, the Rivers State Government ordered all landlords to renovate and repair their houses and in the case abandoned properties, that the tenants should repair such houses and register them.
  2. After the stipulated period for the renovation as ordered by the Rivers State Government and no claimant or owner of landlord came forward to execute the aforesaid repairs on the property now in dispute, the second defendant together with some other tenants did carry out the required repairs and renovation and further painted the said house and registered it accordingly. The said registration was published in the Nigerian Tide of Friday December, 20th 1985 at page 4 a No. 188. The said publication claimants were requested by the 1st defendant authority to come within 7 days of the said publication to substantiate their claims. The said Newspaper shall be relied upon at the trial.
  3. The second defendant avers that neither the plaintiff nor any other person went up within the period stipulated by the publication in paragraph 6, hence subsequently the said No. 38 Elechi Street Diobu Port Harcourt was published for sale in the Nigerian Tide of Monday August 11th, 1986 at page 5 No. 119. The newspaper ishereby pleaded.
  4. That sequel to the publication, the second defendant then paid the sum of N50.00 to purchase an application form as required by the said publication. The Pan African Bank Teller of 7th February, 1986 for N50.00 is hereby pleaded. In the form, the second defendant applied to purchase No. 38 Elechi street mile 3 Diobu Port Harcourt (the property in dispute) having lived there for 14 years as at that date. The second defendant submitted the original to the 1st defendant and retain a photocopy thereof and will rely on it at the trial of the case if the original copy is not produced. The 1st defendant hereby gives notice to produce the original copy.
  5. That after the event in paragraph 8 above a letter of offer no. HPDA/PP.1189/VOL1/2 dated 30th October, 1989 was sent to the second defendant by the 1st defendant and the second defendant accordingly complied with the conditions of acceptance as required by the letter of offer. The letter offer is hereby pleaded.”

During cross-examination of the Appellant, at pages 117 to 118 of the records of appeal, he (the Appellant) was not aware of all the transactions and subsequent publications and correspondences between the 1st and the 2nd Respondents, he was also not aware that the property was renovated by the tenant as abandoned property. It is interesting to also note that the Appellant has not denied all this information during cross-examination, rather he claimed he was not aware. The settled position of the law is that in pleadings facts not disputed, challenged or controverted are deemed admitted. The Appellant having failed to traverse or join issues with the 2nd Respondent on his averments is deemed to admit the facts pleaded against him. See MEKWUNYE vs. IMOUKHUEDE (2019) LPELR-48996(SC), the law is also settled that facts pleaded by one party and admitted by the other will generally need no further proof. See ASAFA FOODS FACTORY LTD V. ALRAINE NIG. LTD (2002) 4 SC (Pt. II) 25.

See also  Neka B.b.b. Manufacturing Company Ltd. V.african Continental Bank Ltd (2004) LLJR-SC

The evaluation of evidence and the ascription of probative value to such evidence remains the primary function of the trial Court which saw, heard and duly assessed the witnesses.

Where a Court of trial, unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record to justify the conclusion reached by the trial Court. Once there is sufficient evidence on record from which the trial Court arrived at its finding. of fact, the Appellate Court cannot interfere with such findings. See CHIEF J. OKEOWO V. ATTORNEY GENERAL OF OGUN STATE (2010) 5 – 7 SC (Pt. 11) 129, MILITARY GOVERNOR OF LAGOS STATE & 4 ORS V. ADEBAYO ADEYIGA & 6 ORS (2012) 2 SC (Pt. 1) 68, OSUJI V. EKEOCHA (2009) 6 7 SC (Pt. 11) 91, CYRIACUS NNADOZIE & 3 ORS V. NZE OGBUNELU MBAGWU (2008) 1 SCNL 219, OYIBO IRIRI & OTHERS V. ESERORAYE ERHURHOBARA & ANOR (1991) 3 SCNJ 1.

Where the trial Court is shown to suffer grave misapprehension, or dwell under severe misconception of the facts and arrived at wrong conclusion as in the instant case, the Court of appeal will be justified in interfering with the findings of the trial Court, in the instant case, the trial Court erred in evaluating the evidence on record and the lower Court in its judgment rightly in our view set aside the findings of the trial Court. Appellate Courts only interfere with findings of fact by trial Courts if the facts or the evaluation of evidence by the trial Court is found to be perverse or clearly demonstrates misapprehension of the facts thereby leading to failure of justice. In arriving at a decision on whether it is proper to interfere with the findings or not, the Appellate Court considers whether there was evidence before the lower Court to concrete the decision, whether the lower Court accepted or rejected any evidence tendered or adduced at the trial, whether the evidence adduced by either party to the dispute was properly evaluated by the lower Court, and whether the evidence adduced was sufficient to support the decision arrived at by the trial Court. See MAFIMISEBI V. EHUWA (2007) 2 NWLR (Pt.1018) p.385, OMOMEJI V. KOLAWOLE (2008) 14 NWLR (Pt.1106) P.180 and HASSAN V. ALIYU (2010) 17 NWLR (Pt.1223) P.547. In the instant case, it is very clear from the records that the lower Court was justified in its decision to tinker with the findings of the trial Court, I fully endorse the decision of the lower Court because the conclusion reached by the trial Court is patently perverse and displays crass misapprehension of the evidence led at the trial. The 2nd Respondent as rightly found by the lower Court is the rightful and lawful owner of the property in dispute and a bona-fide purchaser for value without notice. This issue is accordingly resolved in favour of the Respondents against the Appellant.

Under issue number two, the contention of the Appellant is that the lower Court was wrong to have admitted Exhibits AG and AH in evidence without considering whether the evidence satisfied the provisions of Sections 111 and 112 of the Evidence Act. It is important to state here that Exhibits AG and AH are newspaper publications pleaded, tendered by its custodian, the Chief Librarian of the publishers before the trial Court.

The lower Court in its judgment at pages 327-328 of the records of appeal held as follows:

“In the instant appeal, I am of the considered finding that it was unnecessary for the learned trial judge to look at the issue of certification for admissibility of Nigeria Tide Newspaper which were pleaded, established and by tendering the original of the newspaper in a bulk volume because the respondent had no reply on the Tide Newspapers. It was a futile exercise as facts admitted need no further proof. It was therefore an error on the part of the trial judge, who on his wrong assumption, went on a frolic of his own, suo motu, ordered that the original had to be photo stated and be certified before its admissibility. The trial judge should have known that it is now firmly settled that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence and particularly documents, depend again, on the purpose for which it is to be tendered, see the erudite decision of Ogbuagu, JSC (rtd) in the case of Ogbe V. Asade (2010) 40 NSCQR 386 at 424. In the instant appeal, I accept the contention of the appellants that the trial judge relied on technicality and rejected the Nigeria Tide Newspapers of 11th august, 1986 and 20th December, 1985 respectively. The rejected publications made by the trial judge was perverse, and I hereby set it aside. The rejected Exhibits AG and AH are hereby admitted.”

Generally, admissibility is based on relevance, relevance determines admissibility, once evidence has probative value and is legally admissible, it is considered to be relevant and therefore admissible, because relevance determines admissibility. The moment it is determined that evidence is relevant for the proper determination of any fact in issue, the Court is bound to admit it in evidence if it is legally admissible, relevance is the key to admissibility.

In the instant appeal, Exhibits AG and AH were Newspaper publications properly pleaded and tendered in evidence through their custodian, the Chief Librarian of the publishers.

I agree with the learned counsel for the Respondents that the rejection of Exhibits AG and AH by the trial Court was perverse and resulted in grave miscarriage of justice to the 2nd Respondent. This issue is also resolved in favour of the Respondents against the Appellant.

Submitting on issue number three, learned Counsel for the Appellant contended that the lower Court was wrong in law to have awarded the sum of N250,000.00 as compensatory damages to the Appellant when the Appellant did not seek for that relief.

The lower Court at pages 329 to 322 of the records of appeal held as follows:

“In the instant appeal, an award of general damages as averred by the respondent is to compensate for the loss of the property in dispute which is presumed by law to flow from the 1st appellant wrongful acceptance of money bill on the alleged offer over the landed property in dispute. I therefore use my lawful discretion judiciously and judicially and award a general damages of N250,000.00 in favour of the respondent and payable by the 1st appellant.”

Award of general damages is purely within the discretion of the Court. See ODULAJA V. HADDAD (1973) 11-12 SC 357, the lower Court expressly without mincing words said the Court used its discretion judiciously and judicially and awarded damages, general damages need not be specifically asked for by a litigant, as rightly held by the lower Court, upon general appraisal of the matter, the Court may in its discretion award what is determined to be just and appropriate. General damages are such as the Court may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. See ODOGWU V. ILOMBU (2007) 8 NWLR (Pt. 1037) 4881, NICON HOTELS LTD V. NENE DENTAL CLINICS LTD (2007) 13 NWLR (Pt. 1051) 237.

For any party to succeed in showing that the Court exercised its discretion wrongly, the party has the onus to establish that the discretion was not exercised judiciously and judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations. See NATIONAL BANK OF NIGERIA LTD V. GUTHRIE (NIG) LTD (1993) 3 NWLR (Pt 284) 643 and STATOIL (NIG) LTD V. STAR DEEP WATER PETROLEUM LTD (2015) 16 NWLR (Pt. 1485) 361.

There is no doubt that the purpose of awarding damages is to compensate the aggrieved party for the loss suffered. The lower Court in the instant appeal applied the correct principles and was therefore right in awarding general damages of N250,000.00, to the Appellant relying on the evidence before the Court. – See ONAGA V. MICHO & CO. (1961) 1 AII NLR 324; (1961) 2 SCNLR 101, UKOHA V. OKORONKWO (1972) 5 S.C. 260.

I also resolve this issue in favour of the Respondents against the Appellant.

Having resolved all issues in favour of the Respondents against the Appellant, it follows therefore that the Appellant’s appeal is devoid of a jot of merit and therefore deserves to be and is hereby dismissed. The judgment of the lower Court delivered on the 24th day of November, 2010 in Appeal No. CA/PH/03/2007 is affirmed.

Parties in this appeal shall bear their respective costs.


SC.113/2011

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