Appellate Court Will Not Set Aside A Decision Of A Lower Court Because It Gave Wrong Reason

In the Court of Appeal,

Holden at Lagos on Friday, December 17,2010, Before their lordships:

Clara Bata Ogunbiyi, justice, Court of Appeal; Adzira Gana Mshelia, justice, Court of Appeal;

Hussein Mukhtar, justice, Court of Appeal; CA/L/673/05 Between

Festus Keyamo (appellant) and Peter Folorunso,

Olufewa Tumininu Folorunso, Temini Bolutife Folorunso,

(Suing by next friend Peter Folorunso), Baden-Moyet Nigeria Ltd (respondent).

(Judgment delivered by Adzira Gana Mshelia, JCA).

In reply, respondents’ counsel contended that a close examina­tion of the findings and orders made by the trial court would show that the appellant’s contention was apparently borne out of counsel’s misconception regarding the findings made by the court out of the evidence placed before it and the orders made by the court having regard to the totality of the facts pleaded and evidence led.

It was argued that in its review of the case of the parties and the oral evidence on record, the learned trial judge set out at pages 182 – 192 of the record the summaries of the respective positions of the parties and the evidence led thereof. He proceeded to consider the suit making its findings in the light of the pleadings, oral evidence and exhibits tendered. Counsel contended that contrary to the impression sought to be created by the appellant, the learned trial judge did not grant any order not sought by the 1st respondent and in par­ticular, the court below did not make any order declaring the res as a gift from the 4th respondent to the 1st respondent. Learned counsel further contended that the orders contained in the judgment at page 195 ofthcf record were made based on the case made out by the 1st -3r respondents in their plead­ings and the evidence elicited in respect thereof at the trial. That the court below was justified in granting those parts of the 1st respondent’s counter-claim, which were granted as prayed as per the terms of the counter-claim having regard to the evidence led in support of same.

It was finally argued that assuming that the court below erred in basing its order solely on the issue of gift or no gift, which is not the truth, a plaintiff claiming title to land must succeed on the strength of his own case and not on the weak­ness of the case of the defendant except where the defen­dant’s case supports the plaintiffs claim. See: Akinduro v Alaya (2007) 15 NWLR (pt 1057 at 330; Akinola v. Oluwo & An or. (1962) 1 SCNLR 352 and Bello v Eweka (1981) 1 SC 101. That the issue of gift or no gift is not availing to the appellant’s claim. It does not support his case. That the orders eventually made by the court on the 1st respondent’s counter-claim was as per the relevant terms of the 1st respondent’s counter-claim and not as per the issue of gift being alleged by the appellant.

The appellant in a nutshell had argued that the court below was wrong in granting the 1st respondent’s counter-claim in respect of the res, on the ground that the 1st respondent did not plead or give evidence that the res were gifts from the respondent to the 1st respondent. The rule of pleading requires a party to plead specifically the facts, which he relies on to avoid taking the other party by surprise. Issues are decided on the pleadings and pleadings deal mainly with facts. See Olufosoye v. Olorunfemi (1989) 1 NWLR (pt 95) 26 at 39. Facts not pleaded go to no issue. See: NIPC Ltd. v. Thompson Organisation Ltd. (1969) 1 NWRL at 101; Oladejo Adewuyi-Ajuwon &Ors. II. Fadele Akani & Ors. (1993) 9 NWRL (pt 316) 182,12 SCNj 32 at 35; Abraham Olabanji & Anr. II. Salami Adeoti Omokemi & Ors. (1992) 6 NWLR (pt 250) 671, (1992).j SCNj 266 at 267; Unity Bank PIc. v. Buhari (2008) 7 NWLR (pt 1086) 372; Kayode v. Odutola (2001) 11 NWLR (pt 725) 69. It is the law that any evidence elicited from cross-examination, which were not pleaded goes to no issue and will be disre­garded by the court. See also Buhari v. Obasanjo(supra).

I have carefully examined the averments in the statement of claim, defence and counter-claim, as well as the reply to the defence and counter-claim. I did not come across any para­graph that raised the issue of gift. 1st respondent never relied upon gift as his root of title and such fact was not pleaded in the defence/counterclaim filed by him. It is clear from the record that the issue of the property being a gift was elicited during the cross-examination of the managing director of the 4th respondent (PW3). At page 41 of the record PW3 stated thus: “When we gave flats 2 and 4 to the defendant, it was meant to be a gift, not to be taken back. That is the end”.

what the 1st respondent required is a deed of gift with the governor’s consent to crystallise into a legal estate. See page 190 of the record. However, in the end, the 1st respondent was granted his claim to have a deed of assignment executed in his favour. It cannot, therefore, be said that the trial judge relied solely on the issue of gift in granting the 1st respon­dent’s counter-claim. I only agree with the submission of the appellant under this issue to the extent that the trial judge ought to have disregarded the issue of gift since it was not pleaded. I do not, however, agree with the submission of the appellant that the fact that the trial judge accepted the evi­dence of “gift” is a clear rejection of the story of commercial transaction or “profit sharing” or “joint venture” on which the 1st respondent based his root of title.

In the circumstance, I will resolve issue one in favour of the appellant only to the extent that the issue of gift was not pleaded and same goes to no issue. Under issue two, it was the contention of the appellant that the learned trial judge was wrong to have reached a conclu­sion of fact that Exhibit E was not registered.

Counsel argued that as a general rule, the evaluation of evi­dence is the primary function of the trial court. A long line of cases have decided that this principle of non-interference with findings of fact by a trial court applies only when the finding of the trial court is on the credibility of witnesses:

• That the principle of non-interference with findings of facts by a lower court does not apply where the findings are based on evaluation of evidence;

• That the appellate court will also intervene where there were obvious errors in the appraisal of the evidence and the ascription of probative value thereto by it, or where the find­ings are perverse.

Reliance was placed on the following cases: Iheanacho & Ors. v. Chigere&Ors. (2004)I’j\NWLR(pt0901)130 at 152; A tungwu v. Ochekwu (2004) 17 NWLR (pt 901) 18 at 42 and Adebayo v. Adusei (2004) 4 NWLR (pt 862) 44 at 77 paragraph E – G.

Appellant urged the court to re-evaluate the evidence on record, and since it is not in relation, urged the court to re­evaluate the evidence on record, since it is not in relation to credibility of witness. It’\\!as the contention of appellant that the pleadings and evidence on record do not support the finding of the learned trial judge at page 194 of the .ecord that Exhibit ‘E’ is not registered so the evidential value of the said Exhibit ‘E’ is at best, a purchase receipt of payment made by the claimant to the company. Appellant referred to para­graph 6 of the amended statement of claim and oral testimo­ny 0!\PW1 at page 34 of the record. That the averment and evi­den~ was never controverted either in the amended state­ment of defence or by oral evidence. That the court should accept it as true. See: Yakubu v. N. WI Adamawa State (supra) at 547, paragraphs A -E. that by the pleadings and evidence he requirement of S.15 of Land Instrument Registration Law, Laws of Lagos State was complied with and so it was regis­tered and admissible 8s a document of title.

In response to the 2n issue respondents counsel submitted that appellant’s Deed of sublease Exhibit E is a document affecting a land in Lagos State. That the Deed of Assignment was not registered as required by law. That the only evidence relating to the purported registration of the document was in the oral evidence of the appellant (PWi) during his examination in chief when he said Exhibit IE’ has been registered with LSDPC. It was argued that Exhibit E bore no mark of registra­tion at the land registry of Lagos State. That the purported registration at LSDPC was wrong and unhelpful to the appel­lant’s case because the proper office prescribed by the above law for the registration of land instruments is the Land Registry and not ILSDPC.’ Learned counsel submitted that the contention of appellant that since Exhibit ‘E’ was pleaded evi­dence led that same was registered with LSDPC which evi­dence was not controverted by the other side, and that the trial court ought not to have held that the instrument was not registered is misconceived. Learned counsel submitted that the mere fact that a fact n issue was pleaded, evidence led thereto and was unchallenged does not automatically imply that the fact has been proved. The court is still entitled in such a situation to be satisfied that the evidence adduced is credi­ble and sufficient to establish the fact in issue. See Yakubu v. Ministry of Works and Transport Adamawa State (2006) 10 NWLR (Pt 989) 515 at 547 paragraphs D-E. The irreducible min­imum tests on proof of title by document of title was rehashed recently in the ~u reme court case of Akinduro v. Alaya (2007 16 NWLR (Pt Lj673j05 1052) 15 NWLR (Pt 1057) 312 at 329. TLt Exhibit ‘E’ fai ed in all aspects as it suffers the following afflictions.

It is not valid. It was not duly executed and registered.

The purported grantor (sublesor) had no authority and capacity to grant the alleged sublease.

The grantor (sublesor) did not in fact have what it purported to grant.

It does not have the effect claimed by the holder of the instru­ment.

That from all angles Exhibit E is inefficient and totally unhelpful to the appellant’s case.

The main complaint of the appellant under issue 2 is that the learn judge was wrong to have reached a conclusion of fact that Exhibit ‘E’ was not registered. In other words, the trial judge did not properly appraise or evaluate the evidence adduced in relation to the registration of Exhibit ‘E’. The prin­ciple to guide this court on non-evaluation of evidence was stated in Edward Ukaegbu Nwokoro & Ors. V. Ezekiel Nwosu & Ors. (1994) 4 NWLR (Pt 337) 172. It reads:-”(i) As a general rule, when the question of evaluation of evidence by a trial court does not involve the credibility of witnesses but the com­plaint is against non-evaluation or improper evaluation or appraisal of evidence tendered before the trial court, an appellate court is in as good a position as the trial court to do its own evaluation – See: Abusi v. Ekwalor (1993) 6 NWLR (Pt 302) 643 at 673 – 674 Sc.

(ii) Evaluation of evidence is primarily the function of the trial judge. It is only where and when he fails to evaluate such evidence properly or at all that a Court of Appeal can inter­vene and itself re-evaluate such evidence, otherwise where the court of trial has satisfactorily performed its primary function of evaluating evidence and correctly ascribing pro­bative value to it, the Court of Appeal has no business interfer­ing with its finding on such evidence. See: Atolagbe v. Sheun (1985) 1 NWLR (Pt 2) 360; Obodo v. Ogba (1987) 2 NWLR (Pt 54) 1; Shell BPV. cole (1978) 3SC 183; Egonu v. Egonu (197811-12 SC (1); Wolxchem v. Gudi (1981) 5 SC 29l.

(iii) Where a trial court in questionably appraises the facts, it is not the business of the Court of appeal to substitute its own view for the trial court. The Court of Appeal will not inter­fere with or reverse the findings of fact of the trial court unless such findings are perverse or unsound or unsupport­ed by evidence.

Applying the above principles to the facts of this case with particular reference to the evidence relating to the complaint stated under this issue, I am in a position to re-evaluate the evidence adduced. Appellant relied on paragraph 6 and his oral testimony at page 4 for the record. For clarity paragraph 6 read thus:-

“6 The said Deed mentioned in paragraphs 5 above was sub­sequently registered at the registry of the Lagos State Development and Property Co-operation and steps have been taken to obtain the Governor’s consent to the transaction.”

At page 34 of the record, the appellant gave the following oral testimony in support of the pleading thus:-

“Exhibit ‘E’ has been registered with LSDPC.” The contention of appellant was that this piece of evidence and averment was not controverted either in the Amended Statement of Defence or by oral evidence. The appellant was not cross examined on it and so the court should have accepted it as true. The response of the respondents was that the Deed was not registered as required by law because Exhibit ‘E’ bore no mark of registration at the land registry of Lagos State. Also that Section 3(1) and (2) of the Land Instrument Registration Law provides that the land registry shall be the proper office for the registration of all instruments affecting land. I agree with the submission of respondents’ counsel that though the appellant’s Deed of sublease Exhibit IE’ is a registrable instru­ment being a document affecting land in Lagos State, same was not duly registered at the land registry as required by law. The oral testimony of the appellant cannot satisfy the require­ment as document affecting land are not registered at LSDPC but the Land Registry. It is trite that he who asserts must prove the assertion made. The fact that respondents did not contro­vert the averment, evidence led by appellant does not auto­matically imply that the fact has been proved. The court was therefore entitled in a such situation to be satisfied that the evidence adduced is credible and sufficient to establish that fact in issue. See: Yakubu v. Ministry of Works and Transport Adamawa State (2006) 10 NWLR(Pt 989) 515 at 547 paragraphs D-E. The learned trial judge in my considered view rightly held that Exhibit ‘E’ the instrument affecting land though stamped was not registered as required by law.

Culled from The Guardian.