➥ CASE SUMMARY OF:
Mini Lodge Limited V. Chief Oluka Olaka Ngei (2009) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.231/2006
➥ JUDGEMENT DELIVERED ON:
Friday, December 11, 2009
➥ AREA(S) OF LAW
Agreement to sale;
Conflict in exhibits.
➥ PRINCIPLES OF LAW
⦿ EVALUATION OF EVIDENCE REMAINS EXCLUSIVE PRESERVE OF TRIAL COURT
The settled principle of law is that it is the trial court which alone has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it. Put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of facts flowing therefrom, apply the relevant law to the findings and come to the logical conclusion. The evaluation of evidence remains the exclusive preserve of the trial Court because of the its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus the court best suited to assess their credibility of a witness an appellate court would not ordinarily interfere. — F.F. Tabai, JSC.
⦿ THE APPEAL COURT IS IN A POSITION TO EVALUATE ADMITTED EVIDENCE WHERE IT IS BASICALLY TO DRAW INFERENCES FROM DOCUMENTS
Where however the nature of the case is such that the evaluation would not entail the assessment of credibility of witnesses and would be confined to drawing inferences and making findings from admitted and proved facts and from the contents of documentary evidence, the appellate court is in as vantage a position as the trial court to evaluate or re-evaluate the evidence and make its own findings. These principles have been applied in a number of cases amongst which are WOLUCHEM v. GUDI (1981) 5 SC 291; MOGAJI v. ODOFIN (1978) 4 SC 91; DURU v. NWOSU (1989) 4 NWLR (Part 113) 24; OLADEHIN v. CONTINENTAL ILE MILLS LTD. (1978) 2 SC 28; CHUKWU v. NNEJI (1990) 6 NWLR (Part 156) 363; AKINTOLA v. BALOGUN (2000) 1 NWLR (Part 642) 532 at 546. I have gone through the evidence of the witnesses on record and the judgment of the trial Court and I am firmly of the view that there was no issue of the trial court’s assessment of the credibility of witnesses. The result is that this Court, like the court below, is in as good a position as the trial court to appraise or re-appraise the evidence on record to see if the concurrent findings of the two courts below are not perverse. With respect to the evidence itself, there is a lot of oral as well as documentary evidence. I am however of the view that the issues raised would be resolved mainly by the documentary evidence. I am guided in this view by the settled principle of law that oral evidence is only to be hangars on for documentary evidence. — F.F. Tabai, JSC.
⦿ APPEAL COURT IS IN A POSITION TO RE-APPRAISE EVIDENCE ON RECORD
I have gone through the evidence of the witnesses on record and the judgment of the trial Court and I am firmly of the view that there was no issue of the trial court’s assessment of the credibility of witnesses. The result is that this Court, like the court below, is in as good a position as the trial court to appraise or re-appraise the evidence on record to see if the concurrent findings of the two courts below are not perverse. With respect to the evidence itself, there is a lot of oral as well as documentary evidence. I am however of the view that the issues raised would be resolved mainly by the documentary evidence. I am guided in this view by the settled principle of law that oral evidence is only to be hangars on for documentary evidence. — F.F. Tabai, JSC.
⦿ QUALITY OF TESTIMONY OF WITNESSES
The trial court does not come to a decision by the quantity of the witnesses but on the quality or probative value of the testimony of the witnesses. — O.O. Adekeye, JSC.
⦿ WHEN A CONTRACT OF SALE EXISTS
A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land or property is made and concluded. In a contract for sale of property, where part, payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid, The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance. — O.O. Adekeye, JSC.
⦿ SUPREME COURT WILL NOT INTERFERE WILL CONCURRENT FINDINGS OF LOWER COURTS
We have to emphasize all over again that the Supreme Court will not interfere with the concurrent findings of a trial court and the court of Appeal on issues of fact. The two courts are presumed to have considered all the facts necessary for their coming to such findings. The Supreme Court will only disturb or upturn a concurrent finding of fact of the two lower courts in exceptional circumstances like: – (1) Where violation of some principles of law or procedure exists, and such erroneous proposition cannot stand if not corrected; (2) Patently erroneous findings of fact which amount to a travesty of justice if not left uncorrected; (3) Where the findings of fact are erroneous or perverse. — O.O. Adekeye, JSC.
⦿ WHEN FINDING OF FACT IS SAID TO BE PERVERSE
A finding of fact is said to be perverse – (a) Where it runs counter to the evidence and pleadings. (b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account. (c) Where the trial court shuts its eyes to the obvious. (d) When the decision has occasioned a miscarriage of justice. State v. Agie (2000) 11 NWLR pt. 678 pg. 434 Atolagbe v. Shorun (1985) 1 NWLR pt.2 pg. 360 Adimora v. Ajufo (1988) 3 NWLR pt. 80 pg.1. Akinloye v. Eyiyola (1968) NWLR 92. — O.O. Adekeye, JSC.
⦿ BEFORE A COURT CAN EXERCISE JURISDICTION
Before a court can exercise jurisdiction respect of any matter, it must:- (a) be properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or the others. (b) the subject-matter of the case is within the jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and (c) The case comes by clue process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. — O.O. Adekeye, JSC.
⦿ FUNCTION OF A REPLY BRIEF
The function of a reply brief is to refute the new arguments in the respondents brief. A reply brief is necessary when an issue of law or argument is raised in the Respondents brief which requires a reply by the appellant. Failure to file a Reply brief can adversely affect the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial and relevant in law. A reply brief is not meant to re-argue or fine tune an appellant’s case. A reply brief has no connection or affiliation with the Cross-Respondents brief and can only be filed by an appellant in the main appeal or cross-appeal. — O.O. Adekeye, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
F.F. Tabai, J.S.C.
⦿ FOR THE APPELLANT
Eberechi Adele Esq.
⦿ FOR THE RESPONDENT
Faye Dikio Esq.
➥ CASE FACT/HISTORY
In the amended claim which is reproduced in paragraph 18 of the Amended Statement of Claim the Appellants claimed against the Respondents jointly and severally as follows, inter alia, a declaration that the purported sale of Plot 136 Borokiri Layout otherwise known as No. 4 Etche Street Borokiri, Port-Harcourt within the jurisdiction of the Honourable Court by the 1st Defendant to the 2nd Defendant is illegal, null and void.
The Defendants/Respondents also filed a counter claim.
In its judgment on the 14/7/2000 the trial Court dismissed the Plaintiff/Appellants’ claim in its entirety. The Court however granted reliefs (i) and (iv) of the counter-claim to the effect that the Plaintiffs have no interest whether legal or equitable in the property in dispute and that the 2nd Defendant was entitled to vacant possession of same. Reliefs (ii) and (iii) of the counter-claim were dismissed.
The Plaintiffs were aggrieved by the judgment and proceeded on appeal to the Court below. The Defendants/Respondents were also not satisfied with the trial court’s dismissed of reliefs (ii) and (iii) of the counter-claim and thus filed a cross-appeal to the Court below. Briefs were filed and exchanged in the substantive appeal. With respect to the Cross-Appeal the Defendant/Cross-Appellants filed their Cross-Appellants Brief. The Plaintiffs/Cross-Respondents did not file a Cross-Respondents’ Brief. By the operation of order 6 Rule 10 of the Court of Appeal Rules the Plaintiffs/Cross-Respondents were not heard in oral argument on the Cross-Appeal.
In its judgment on the 12th of April, 2006 the main appeal was dismissed for lack of merit. The cross-appeal was however allowed and judgment was accordingly entered for the Defendants/Cross-Appellants in terms of paragraph 14A(i) and (ii) and B(ii) and (iii).
The Plaintiffs were still not still not satisfied and have come on further appeal to this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court of Appeal was wrong in affirming the trial Court’s verdict that the Appellants did not have a valid interest in the property vis-a-vis the assignment by the 1st Respondent to the 2nd Respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE EVIDENCE OF THE PLAINTIFF/APPELLANT ARE CONTRADICTORY
In his evaluation and resolution of this issue the learned trial judge had this to say:- “By Exhibits “F” and “G” the property was purportedly sold to the Plaintiffs by the 1st Defendant in 1979. By Exhibits “C” an application was made to the International Bank for West Africa Ltd for N100,000.00 in loan to purchase the property using the title Deed of the property as collateral. These three Exhibits appeared to have sealed the contract of sale. However, by the pleadings and evidence Plaintiffs are still talking about payments of rents when they purported to have bought the property in 1979. By Exhibit “H” tendered by the 1st Defendant and which was written by the 2nd Plaintiff and dated 14th January 1985 the Plaintiffs gave statement of affairs regarding rents so far paid in respect of the property. The said Exhibit “H” made no reference to any sale or agreement to sell, rather it talked about rents so far paid simpliciter. It did not even say that the rents were for part payment of the purchase price for the property. Again in Exhibit “L” the 2nd Plaintiff stated that since 1st Defendant had sold to Mr. Atey, he the first Defendant was no longer entitled to rent in respect of the property. If Plaintiffs had actually bought the property in 1979 as per Exhibit “F” and “G” why must they still be talking about payments of rent even in 1988. By paragraph 9 of the said Exhibit “L” written on 29th August 1985 Plaintiffs offered to buy the property if the 1st “Defendant was still desirous to sell since Mr. Atey could not pay the balance of the purchase price and that the sum of N28,269.60 being held by the 1st Defendant as various sum of money collected from Plaintiffs could stand as deposit against the purchase price. It is very highly preposterous for the Plaintiffs in 1988 to be making an offer for purchase when by Exhibits “C”, “F” and “G” they claimed they had bought the property in 1979. It is also preposterous for the Plaintiffs to be continuing talking about rents when he claimed that he had bought the property. Exhibits “H” and “L” aforesaid made by the Plaintiffs are totally at variance with Exhibits “F” and “G”. No reason for this variance in the documentary evidence by the Plaintiffs. In law it is not the duty of the Court to pick and choose which evidence to believe. The above documents clearly showed Plaintiffs conflicts of interest in the property and the court cannot judiciously and judicially hold that there was a contract of sale and there was actual sale. By this variance in the evidence coupled with 1st Defendant’s denial that he never entered into any agreement to sell the property and Plaintiffs never bought…” (See page 196 – 197 of the record).
In its judgment the Court of Appeal reproduced the foregoing reasoning and conclusions of the trial court and held that it was unassailable. At pages 282-283 of the record the Court per M.D. Muhammed, JCA stated:- “The foregoing summation by the lower court is unassailable. Indeed as the court concluded further in its judgment, in law it is not the duty of a court of law to pick and choose which evidence out of the lot advanced by a party to prove an only case. See ONUBOGU v. STATE (1974) 9 NSCC 358. Where a party in a case has tendered a document in proof of his case and the contents of the document is inconsistent with the contents of another documents equally tendered in proof of the same facts and the inconsistency remains unexplained, the court should, as was done by the court below, regard the contents of the two documents as evidence that is far from being reliable. In the instant case the lower court rightly found that Exhibits “H” and “L” totally are at variance with Exhibits “F” and “G”. All the documents were tendered in proof of specific paragraphs in the Appellants’ Statement of Claim to the effect that 1st Respondent herein had assigned the property in question to the Appellants. A decision not to rely and act on any of the documents is not only logical but a necessity occasioned by the uncertainty as to what version the court would choose and believe out of the two.”
Are the foregoing views and findings of the Court of Appeal correct[?] As I said earlier in this judgment, I have thoroughly examined the pleadings of the parties, the evidence in support thereof and the judgment of the trial court. There is no doubt, that in its judgment the trial court thoroughly and meticulously examined the totality of evidence placed before it and made findings which are amply supported by the mass of oral and documentary evidence. The judgment of the trial court cannot be faulted in any way. It is not surprising therefore that the Court of Appeal endorsed the findings and decision of the trial Court. On the first issue therefore, I hold, in conclusion that, the Court of Appeal was right in affirming the trial court’s verdict that the Appellants did not have a valid interest in the property vis-a-vis the assignment by the 1st Respondent to the 2nd Respondent.
The intention of the appellant to purchase the property was not effectively communicated to the 1st respondent. The documents meant to confirm the sale and transfer of the property, were contradictory and conflicting in their contents. The appellant was still discussing about arrears of rents owed to the landlord at a stage of the transaction when he should concentrate on taking absolute possession and transfer of ownership of the property. The documents relevant to the sale are Exhibits “H”, “L”, “F” and “G”. They are riddled with contradictions and it will be foolhardy to rely on them to prove the facts of the sale of the property in dispute to the appellants. The decision of the lower court to affirm the judgment of the trial court is not by any standard perverse.
B. THAT THE PROCESSES OF THE APPELLANT MANIFESTS FALSITY
“Thus while in their amended statement of claim they claimed to have had an equitable interest in the property through part-purchase, in their Defence to counter-claim they claimed absolute title over the self-same property through a Deed of Assignment. In my view these divergent claims establish the manifest falsity of the Appellants’ case even before it was tried.”
II. Whether the refusal by the Court of Appeal to entertain the Appellant’s motion for extension of time to file the Appellants’ Reply Brief is a denial of fair hearing?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE COURT OF APPEAL HAVE THE DISCRETION TO EXTEND TIME OR NOT
“The Reply Brief even if filed within time, would not make any difference. On an application to take any procedural step, the court below has the discretion to extend time or not and each situation depends on its peculiar circumstances. In the instant case, even if time is extended, the Appellants’ Reply Brief would not increase the fortunes of the appellants. The facts are very clear, the Reply Brief would not serve any useful purpose. Under the circumstances, the court below exercised its discretion properly and there is no denial of fair hearing.”
“In conclusion, I hold that the appeal lacks merit. There was no evidence the part-purchase of the property which they pleaded. Nor was there any evidence of the purported assignment of the property by the 1st Respondent to the Appellants through Exhibit “G” which they later introduced in the case. Exhibit “G” which signature was established to be a mere simulated forgery of the genuine signature of the 1st Respondent was itself a contradiction of the claims for specific performance and damages for breach of contract. The case of the Appellants as pleaded in the amended Statement of Claim and the defence to the caunter-claim told the lie against itself. The result is that this appeal ought to be dismissed and is accordingly dismissed with costs which I assess at N50,000.00 in favour of the Respondents.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)