MRS. GRACE UKPONG & ORS

V.

CROSS LINES LIMITED & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON WEDNESDAY, THE 27TH DAY OF JANUARY, 2016

CA/C/20/2011

LN-e-LR/2016/60 (CA)

OTHER CITATIONS

(2016) LPELR-40131(CA)

BEFORE THEIR LORDSHIPS

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

ONYEKACHI AJA OTISI, J.C.A

PAUL OBI ELECHI, J.C.A

BETWEEN

MRS. GRACE UKPONG

MADAM MABEL O. AINA - Appellant(s)

AND

CROSS LINES LIMITED

ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, CROSS RIVER STATE. - Respondent(s)

REPRESENTATION

NKOYO IRONBAR, (MRS) ESQ. - For Appellant

AND

EZINNE EBOGU, ESQ.

IVIE ITA ESQ. (DEPUTY DIRECTOR MINISTRY OF JUSTICE) - For Respondent

EDITORS:

Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]

MAIN JUDGMENT

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):

This Appeal is against the Judgment of the High Court of Cross River State, Calabar Judicial Division delivered by Honourable justice E. Ita on the 12th October, 2009 in suit No. HC/185/1991.

The Brief facts of the case is that the 1st Appellant applied to the Commissioner for Lands, Survey and Town Planning on the 13th June 1980, for a State land and was subsequently allocated piece of Land under a temporary Right of Occupancy (T.R.O), vide a letter No. MHE/LD/2446/134 of 20th March, 1981. The Land measuring 60 feet by 60 feet was for the construction of a temporary structure. The Temporary Right of Occupancy (TRO) was not to be transferable to a 3rd party by virtue of Section  4 (d) (1) of the Land Use Act Regulations (Amendment) Edit 1984.

The said Government land was gazette in Cross River State Legal Notice No. 124 of 8th May, 1980, No. 21 Vol 13. The 1st Appellant entered the said Land through the permit of the Chief Lands Officer in the Cross River State Ministry of Lands and Housing and built a restaurant thereon and handed over to her mother the 2nd Appellant to manage while she Joined her family in the USA. The 2nd Appellant was at no time granted any right of Occupancy.

While on the property, the 1st Appellant defaulted in payment on the Temporary Right of Occupancy (TRO) which was to be paid on annual basis. The 1st Appellant defaulted in the payment of the fees for the piece of land from 1982 to 1991 when she brought the action.

The 2nd Respondent was not aware of the construction done on the piece of land nor was he aware of the destruction of any structure on the piece of land allocated to the 1st Appellant. At the lower Court, the Learned trial Judge refused to join the 2nd Respondent in his Ruling of 21st June, 2005. However, the Learned trial Judge later went against that Ruling on the 18th May 2009 and joined the 2nd Respondent as a party in the case even though he was functus officio then.

Inspite of that, the Appellant could not establish /prove their claims at the lower Court, hence this appeal. Judgment was delivered in the case on the 12/10/09.

In arguing the appeal, the Appellant distilled 3 Issues for determination:

1.       "Whether the trial Court violated the principle in the case of West African Breweries Ltd vs. Savannah Ventures Ltd (2002) 10 NWLR (Pt 775) 401 and made finding of fact that could only made after leading evidence (covered in Grounds 1 and 5 of the appeal).

2.       Whether in suo moto discrediting/ attacking Exhibit 3 tendered by the Appellant without objection from the Respondent who also led no evidence to contradict same, the trial Court was justified (covered by Ground 11).

3.       Whether the trial Court was justified in refusing to admit the pictures of the restaurant as Exhibits in the case."

The learned Appellant Counsel argued Issues 1 and 2 together and referred the Court to the authority of West African Breweries Ltd vs. Savannah Ventures Ltd (Supra) to the effect that it is not proper for a trial Court to embark upon examination of documents tendered as Exhibits when such examination will amount to a fact finding investigation that leads to discovery of facts which Court have been proved by evidence the distinction is that whereas investigation leads to discovery of fresh facts, the truth of which could have been challenged by fresh contrary evidence, evaluation of evidence leads merely to findings based on the quality of evidence already existing. In the present case, the learned Appellant Counsel stated that what the trial Judge did was an evaluation of the evaluation of reports, Exhibits A, D and E in particular Exhibit E which was preferred by the Judge.

Therefore, the learned trial Judge fell into the same error of evaluating the evidence and from there went outside using his evaluation to reach many conclusions that should have been provided in evidence by the Respondent at that there was acceptance of the temporary right of Occupancy by the Appellants. It is Learned counsel's submission that in the absence of the evidence of the Respondents at the lower Court, minimal evidence in favour of the Appellants should give them judgment relying on the authority of Nweke Vs. Udobi (2001) 5 NWLR (Pt. 706) 445 at 450. Igbinovia vs. Agbifo (2000) 12 NWLR (Pt. 681) at 338. He then submitted also that the trial Court disregared the testimony of the Appellants and suo moto went beyond the scrutiny of Exhibit 3 which it rightly said it understood to be invitation to 1st Appellant to make payment of N1, 071, 36k for a TRO over the land for the year 1984. The Respondents he contended never denied by credible evidence the existence of the TRO. They admitted same though denied it in the pleading without leading which is tantamount to abandonment of the pleading is not evidence. See Salami vs. Oke (1987) a SC, 63 at 66.

Learned Counsel submitted that for whatever reason the Appellants were entitled to notice to remove their property on the land. Instead of the Respondent resorting to jungle justice. See Agbai vs. Okogbue (1991) 7 NWLR (Pt. 204) 391, Governor of Lagos State vs. Ojukwu (1986) 1 NWLR (pt. 18) 21. It is the contention of the Appellant Counsel that at no time did the Appellant claim title to the land. Rather the parties have themselves agreed that TRO and the restaurant existed, no matter in what condition, the trial Court cannot make its own case outside the pleadings as it has done in this case. Having argued Issue No. 1 and 2 together, Learned Appellant's counsel then urged the Court to resolve same in their favour.

ISSUE NO. 3

"Whether the trial Court was justified in refusing to admit the pictures of the restaurant as Exhibit in this case."

It is the Learned Appellants contention that had the trial Court admitted the pictures of the restaurant showing its completed state, it would have come to a different conclusion. The picturesýare marked Exhibits A and A1 though rejected. He then urged the Court to resolve Issue No. 3 in favour of the Appellant as the Judgment is against the evidence on record. On his own part, the 1st Respondent distilled one Issue for determination thus:

"Whether having regards to the fact that the Respondents did not lead evidence at the trial, the Learned trial Judge was therefore wrong to evaluate the totality of the Appellant's evidence before their trial Court, particularly Exhibit 3 and make findings thereon and consequently dismiss the Appellants entire claim."

In arguing this sole Issue 1st Respondent Counsel answered the above in the negative and submitted that it is trite that in a case for declaration of title to land, the Plaintiff must succeed on the strength on his own case and not on the weakness of the defence. Also that the more production of an instrument of title does not necessarily carry with it an automatic grant of the relief sought as the Court is bound to inquire into a number of factors including the validity of the document and whether the document had the effect claimed by the holder. See Odunukwe vs. Ofomata (2010) 18 NWLR (Pt 1225) 404, Jolsun vs. Bangboye (2010) 18 NWLR (Pt. 1225) 285. The Authority of West African Breweries Ltd vs. Savannah Ventures Ltd (supra) is to applicable to this case. See Okoye vs. CPMB Ltd (2008) 15 NWLR (Pt. 1110) 335.

He submitted that there is no Law that bars and or foreclose a trial Court from evaluating the evidence before it and ascribe probative value to the evidence as the lower Court did while considering Exhibit 3.

Therefore, the authorities of Nweke vs. Udobi and Igobinovia (Supra) are not applicable to this case because in scrutinizing Exhibit 3, the Learned trial Judge was merely performing the duty imposed by Law. See Okoye vs. CPMB Ltd. (Supra). He further submitted that the trial Courts are bound to confine itself to the evidence led by the Appellants, in determining their title to the land and that since from the entire gamut of the Appellant's processes and evidence there was no scintilla or shred of evidence to prove payment for the TRO (Exhibit 3) upon which the Appellant's title was inevitable predicated ,he then urged the Court to hold that the Appellants failed to discharge the burden of proof placed on them by Law and the only option left for the trial Court was to reach its decision as shown on pages 367-369 of the Records and the appellate Court will have no cause to interfere.

In view of the above, he then urged the Court to dismiss the appeal and uphold the Judgment of the lower Court.

On Issue No. 3 as distilled by the Appellant, 1st Respondent Counsel submitted that it is incompetent as no leave was obtained being on interlocutory decision. As a result, he urged the Court to strike it out.

On the photographs, Learned Counsel submitted that the lower Court was right to have rejected their admission in evidence because they are not accompanied with their negatives.

Exhibit 1 (Power of Attorney) was wrongly admitted in evidence according to Learned Counsel because they were procured during the pendency of the suit and urged the Court to expunge same.

Finally, he urged the Court to dismiss the appeal and affirm the Judgment of the lower Court. On their own part, the 2nd Respondent adopted all the three Issues for determination as formulated by the Appellant. However, in arguing the appeal, he opted to argue Issues 1 and 2 together. The Issues in contention here are whether the trial Court violated the principle in the case of West African Breweries Ltd vs. Savannah Ventures Ltd. and made findings of fact that could only be made after leading evidence and also whether in suo motu discrediting/ attacking Exhibit 3 tendered by the Appellants without objection from the Respondents who also led no evidence to contradict same, the trial Court was justified.

To start with, it is Respondent submission that the trial Court did not violate the principle in West African breweries Ltd vs. Savannah ventures Ltd (Supra) as alleged by the Appellants. In the said Judgment even through Ayoola JSC stated that there is a plethora of authorities to show that it is improper for a trial Court to embark on examination of documents tendered as exhibits when such examination will amount to a fact finding investigation that will lead to a discovery of facts which could have been proved by evidence. However, the Court further said thus:

"The authorities do not in my view go to the extent of prohibiting the Court from evaluating the documentary evidence before it either or by itself or alongside other evidence in the case in order to make findings of facts on Issues before it "

In the Present case, the Learned Counsel submitted that the Learned trial Judge evaluated the evidence on the temporary right of occupancy and based his findings on the facts and Issues before it and arrived at the conclusion. See Khalil and Dibbo vs. Odumode and 2 Ors (2000) vol. 3 H6 page 172.

On the TRO Learned Respondents Counsel contended that the Appellant could not establish before the lower Court that they adhered strictly to the terms of the covenant /agreement. On the TRO i.e paying of the rent nor did they give notice to produce duplicate copies of the receipts they alleged were lost.

Learned 2nd Respondent's Counsel then submitted that the trial Court acted in tandem with the findings of AyoolaýJSC in West African Breweries Ltd v. Savannah Ventures Ltd (supra) as the Learned trial Judge made findings on Exhibits 3 on Issues before it and made a proper use of some which led to the conclusion arrived at. The findings of the Court were not perverse. He then urged the Court to resolve this Issue in favour of the Respondent and then allow the appeal.

I shall now commence the resolution of Issues as per the Issues distilled and adopted by the Appellant and 2nd Respondents and also the 1st Respondent who distilled only one Issue as in herein before stated.

The Issue in contention in Issue No. 1 is whether the trial Court violated the principle in the case of West African Breweries Ltd v. Savannah Ventures Ltd (supra) and made findings of fact that could only be made after leading evidence. This Issue is distilled from Ground 1 & 5 of the Appeal.

To be considered together with this Issue No. 2.

"whether in suo motu discrediting/ attacking Exhibit 3 tendered by the Appellant without objection from the Respondents who also led no evidence to contradict same, the trial Court was justified. This Issue is distilled from Ground 2 o f the appeal."

While the Appellants contend that the lower Court violated the principle in the case of West African Breweries Ltd v. Savannah Ventures Ltd (supra), the Respondents are of the firm view that the principle in that case does not apply to this case. The Appellant made heavy weather on how the Learned trial Judge exercised its primary duty to evaluate the evidence tendered and ascribe probative value to some as if the Learned trial Judge was forbidden from evaluating the evidence or as if the trial Judge was indeed found to accept Exhibit 3 and act on it hook, line and sinker simply because the Respondents did not lead evidence at the lower Court.

In the said authority, Ayoola JSC stated thus:

".... There is a plethora of authorities all going to show that it is not proper for a trial Court to embark upon examination of documents tendered as Exhibits when such examination will amount to a fact finding investigation that leads to discovery of facts which could have been proved by evidence.... but by way of a caveat he continued that "the authorities do not, in my view, go to the extent of prohibiting the Court from evaluating the documentary evidence before it either by itself, or alongside other evidence in the case in order to make findings of fact on Issues before it"

Also at page 427, paragraphs F & G, he went on to state that the question should be whether the trial Judge made a proper use of the evidence before him and not whether he embarked on an enquiry of his own, and that the primary concern of an appellate Court should be whether the Judge's reasons as discerned from the Judgment are clear and lead reasonably to the conclusion he arrived at."

In the present case, the Appellants allege that the trial Judge went into an evaluation of the evaluation report as contained in Exhibits A, D and in particular Exhibit E which was preferred by the trial Judge.

The Temporary Right of occupancy as shown on pages 367 - 368 of the record reads thus for purposes of clearing any doubt reads thus:

"In consideration of your occupation of a position of state land measuring 18.30 metres by 18.30 (334.8 metres) you are requested to pay the sum of N1091.36 for the year 1984 and obtain your license of TRO.

2.       If the amount is not paid within days of the receipt of this letter, you will be ejected from the site thereafter.

3.       furthermore, be informed that this TRO is on yearly basis and you will have to apply for the site in every December, if you intend to occupy it the following year.

4.       Notice of 7 days will be given for the determination of this TRO whenever the government needs the site"

On Page 369 of the records, the Learned trial Judge gave a initial evaluation of Exhibit 3 and made it findings that from Exhibit 3 that a TRO was offered to the Appellant but there is no evidence that 1st Appellant accepted the tenant on Exhibit 3 and paid thereto nor establish any title on the land. I think in my own opinion that the Learned trial Judge properly evaluated the documentary evidence shown in Exhibit 3 and utilized the said evaluation in arriving of his decision. It is settled Law that evaluation of evidence is primarily the function of the trial Court. See Egonu v. Egonu (1978) 11-12 SC III, Agbonijo vs. Aiwerioba (1985) 2 SC (pt. 11) 64. However, where the trial Court fails to evaluate such evidence properly or at all, the appellate Court can interfere and itself re-evaluate the evidence particularly where the bulk of the evidence is documentary as is the situation in this case.

Having evaluated the documentary evidence in Exhibit 3 and justifiably appraised the fact, it is not the business of an appellate Court to interfere and to substitute its own views for the view of the trial Court. See Bermani Ventures Ltd vs. Kingsfoam & Chemical Ind. Ltd (2002) FWLR (pt. t14) H.4 at 47.

It is the duty of the plaintiff to Prove his case with incredible evidence and not to depend on the weakness of Appellant's case. The Learned trial Court did not fall into any effort in evaluating the evidence nor did he go outside using this evaluation to reach many or any conclusions that should have been provided in evidence by the defendant. The allegation by the Appellant that there was no acceptance of the temporary right of occupancy by them was made by the trial Judge.

This remark by the trial Judge has nothing to do with the live Issues for the determination in this matter.

Therefore I shall and hereby resolve Issue No. 1 in favour of the Respondents and against the Appellants.

On Issue No. 2 as to whether in suo motu discrediting/attacking Exhibit 3 tendered by the Appellant without objection from the Respondents who also led no evidence to contradict same, the trial Court was justified. This issue is distilled from Ground of the Appeal.

I have considered this Issue extensively while treating Issue No. 1 herein before mentioned and I also adopts the same consideration and conclusion in respect of this Issue. Though Exhibit 3 was tendered and admitted without objection, what the lower Court did was to evaluate the evidence on the face of it and ascribe probative value to it as part of the duty imposed by Law on the Courts. The trial Court did not attack or discredit Exhibit 3 in the process of its evaluation as submitted by the Appellant's Counsel. After all, no Court worth its salt could hove admitted 'Exhibit 3, and act on it hook, line and sinker without a glance of evaluation which is not by any means discrediting or attacking such document as contended by the Appellant's Counsel.

In view of the above, I hereby resolve Issue No. 2 in favour of the Respondents.

Issue No 3 is whether the trial Court was justified in refusing to admit pictures of the Restaurant as Exhibits in this case. This Issue is distilled from Ground III of the Appeal.

It is the Appellants position in this appeal that had the trial Court admitted the pictures of the Restaurant showing its complete state, it would have come to a different conclusion in the matter. First and foremost is that the Issue of photographs of the restaurant is not a live Issue in this matter. Besides, photographs are not admissible in evidence under the Evidence Act without its negatives. In addition, the evidence connecting the said pictures are not in conformity with the pleadings. While the witness for the Appellant stated in evidence that they never got the negatives from the photographer, the pleading is that the negatives were destroyed during the destruction of the building. The evidence is therefore inadmissible being at variance with the pleadings. Evidence such as this which do not conform with the pleadings goes to no issue. See Anyanwu & ANOR V. IWUCHUKWU (2000) 4 NSCQR H1 at 245 where it was stated that once pleadings are ordered, filed and exchanged, the parties and the Courts are bound by the pleadings so filed.

It therefore follows necessarily that evidence led not in conformity with the pleadings, and/or upon facts not pleaded went to no Issue "Per Ejiwunmi JSC at 251 ."

In view of the above, I hereby resolve Issue No. 3 in favour of the Respondent as well. Having resolved all the three Issues in favour of the Respondent, I hereby hold that the Appeal is not meritorious and it hereby fails. The Appeal is therefore dismissed.

No orders as to cost.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.:

I agree.

ONYEKACHI AJA OTISI J.C.A.:

My learned Brother, Paul Obi Elechi, JCA, made available to me a draft copy of the leading Judgment in this appeal. I am in complete agreement with his reasoning and conclusion dismissing this appeal.

I adopt his reasoning as mine and also dismiss this appeal.

I abide by the orders in the leading Judgment.