Isaac Koloko & Anor v. Alexander Anayo Nkwonta
Citation: (2020) LPELR-52195(CA)
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON WEDNESDAY, 16TH DECEMBER, 2020
Suit No: CA/L/596M/2010
Before Their Lordships:
JOSEPH SHAGBAOR IKYEGH. Justice, Court of Appeal
UGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal
GABRIEL OMONIYI KOLAWOLE Justice, Court of Appeal
1. ISAAC KOLOKO
2. BERNARD OLAKUNLE – Appellant(s)
ALEXANDER ANAYO NKWONTA
(For himself and on behalf of the Family of Chief Daniel Onuora Nkwonta – Deceased) – Respondent(s)
LEADING JUDGMENT DELIVERED BY
UGOCHUKWU ANTHONY OGAKWU, J.C.A.
The land in dispute which is situated at Amore Street originally belonged to one Chief Daniel Nkwonta the progenitor of the respondent. The 2nd appellant was some sort of major-domo (i.e. Chief Steward) of the said progenitor, and after his death, the 2nd appellant sold the disputed land to the 1st appellant, claiming that the respondent authorized him so to do. The respondent denied authorizing it and this led to the action at the High Court of Lagos State. The trial court entered judgment for the Respondent. Dissatisfied, the Appellants appealed to the Court of Appeal.
Issues for determination
The Court considered the appeal on the following issues:
1. Whether the allegation of forgery made by the respondent was proved beyond a reasonable doubt.
2. Whether the learned trial Court adequately considered the submissions of the appellants’ counsel before entering Judgment in the matter.
The appellants’ counsel submitted that the Respondent’s allegation of forgery was not proved beyond reasonable doubt as required by law. Section 138 of the Evidence Act and the cases of GATAH (NIG) LTD vs. ABU (2005) ALL FWLR (PT 278) 1186 at 1215-1216 and ZEIN vs. GEIDAM (2004) ALL FWLR (PT 237) 457 at 480 were referred to. It was contended that the respondent did not plead any particulars of forgery. Counsel relied on ISIAQ vs. SONIYI (2009) ALL FWLR (PT 498) 347 at 374-375.
While conceding that the Court can compare signatures under Section 108 (1) of the Evidence Act, the appellants’ counsel submitted that the signature which the lower Court used for comparison was not the only sign of the respondent available to the lower Court and that a Court has a duty to look at documents in its case file. Counsel relied on the cases of AGBAISI vs. EBIKOREFE (1997) 4 NWLR (PT 502) 630 and AGBO vs. THE STATE (2006) ALL FWLR (PT 309) 1380 at 1409-1410. It was further contended that the lower court did not give any clue as to how it arrived at the conclusion that the signature did not accurately resemble each other and therefore made an unwarranted, arbitrary and subjective finding. Counsel relied on THE QUEEN vs. WILCOX (1961) ALL NLR 658 at 666.
On the second issue, appellants’ Counsel submitted that a Court is duty-bound to consider all material issues in a case before reaching a decision and failure by a Court in this regard violates the principle of fair hearing. Counsel relied on AFRIBANK NIG PLC vs. YELWA (2011) ALL FWLR (PT 585) 296 at 323. The appellant’s Counsel contended that the lower court only focused on the appellants’ arguments as they related to the letter of authority and the signing thereof, but failed to consider other important submissions made by the appellants. The appellants’ Counsel conclusively submitted that justice must not only be done but should manifestly and undoubtedly be seen to be done.
The respondent’s Counsel submitted that the Statement of Defence filed by the appellants at the lower Court is a nullity having been signed by a non-legal practitioner. Counsel relied on ALAWIYE vs. OGUNSANYA (2012) 12 SC (PT III) 1 at 42-43. The appellants thus had no defence on which to join issues with the respondent. Furthermore, it was submitted that even if the said Statement of Defence is valid, the Appellants did not call any witnesses to prove the averments therein. The cases of ELUKPO vs. FHA (1991) 2 NWLR (PT 179) 322 and HARUNA vs. OJUKWU (1991) 1 NWLR (PT 202) 207 were referred to.
The respondent’s Counsel submitted that failure of the appellant’s Counsel to lead evidence rendered their averments abandoned. Also, the respondent’s evidence that the purported letter of authority was not written by him, having not been challenged, the lower Court was entitled to accept the same. Counsel relied on WASA vs. KALLA (1978) 3 SC 21.
The respondent’s Counsel contended that the lower court was correct in its comparison of the signatures and that the respondent did not raise any issue of the forgery but only pleaded that it never authorized the 2nd appellant to sell the disputed land to the 1st appellant. The burden of proving that the respondent authorized that the land is sold, it was maintained, rests with the appellants. The respondent’s Counsel further submitted that the respondent never received any money from the 2ndappellant in connection with the disputed property.
Resolution of the issues
The Court held that the appellants’ Statement of Defence was indeed signed in the name of a law firm and that a process signed and issued in a firm’s name is not valid and proper in view of the provisions of Sections 2 and 24 of the Legal PractitionersAct, and OKAFOR vs. NWEKE (2007) 10 NWLR (PT 1043) 521 at 534. The Court, however, held that the Statement of Defence is not an originating process. And since the respondent did not raise any issue about the validity of the Statement of Defence at the lower Court, it is too late in the day for the respondent to now so contend. See A-G KWARA STATE vs. ADEYEMO (2016) 7 SC (PT II) 149 or (2017) 1 NWLR (PT 1546) 210 at 239-240.
The Court also held that the appellants did not call any witness, and as such, must be taken as admitting the facts of the case as stated by the Respondent: AKANBI vs. ALAO (1989) LPELR (315) 1 at 53-54.
The Court held that the burden of proof lies on the one who alleges and not on him who denies. See ARASE vs. ARASE (1981) 5 SC 33 at 37 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44-46. It was the appellants that asserted that the respondent, via a letter, had authorized the appellant to sell the disputed property, while the respondent denied such authorization. The Court thus held that the appellants have the evidential burden of proving their assertion.
The Court also held that though the word “forgery” was employed by the Respondent in its pleading in the relevant paragraphs, it was not an assertion of forgery that would require the respondent to establish the same beyond a reasonable doubt, but a mere denial that he did not issue any letter of authority for the land to be sold.
The Court further held that even if the respondent pleaded forgery in its Reply to the Statement of Defence, then the absence of particulars of forgery necessarily implies that the allegation of forgery must be discountenanced, and the trial Court will adjudicate on the basis of other relevant paragraphs in the respondent’s Further Amended Statement of Claim. See EYA vs. OLOPADE (2011) LPELR (1184) 1 at 27-28.
The Court held that Section 108 of the Evidence Act (which is now Section 101 of the Evidence Act, 2011), requires the Court to compare signatures on a document admitted or proved to the satisfaction of the Court to have been made by that person. And that while it is correct that the trial Court is entitled to make use of the documents in the case file in order to arrive at a just decision, it has to be remembered that a Court is not a knight errant marauding all over the place in a quest for chivalric virtues. The purported letter of authorization was in evidence before the trial Court as well as the signature on the respondent’s affidavit used for comparison. It was not the business of the Court to go scouting for the signature of the Respondent on any other documents.
The Court also held that the appellant did not challenge the finding by the trial Court that even if the letter of authorization was duly issued, it was not enough authority for the 2nd appellant to dispose of the disputed land. Consequently, the finding remains unassailable and binding on the parties. See AMALE vs. SOKOTO LOCAL GOVT (2012) 5 NWLR (PT 1292) 181.
As regards the contention of the appellants that major issues they raised were not considered by the trial Court, the Court held that as a general rule, all Courts, except the apex Court are duty-bound to consider all issues raised before it. But it is not in all instances where a Court fails to consider all issues raised before it that it would result in the decision being set aside. Failure to consider and pronounce on all issues properly before the Court will not, per se, constitute a denial of the fair hearing unless such omission occasioned a miscarriage of justice. See BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270. The Court thus held that the issues which the appellants complain of not being pronounced upon are not issues that are crucial, vital, substantial and properly before the trial Court.
The Court found no merit in the appeal and dismissed the same.
I. G. ODIHI, ESQ.
P. O. JIMOH-LASISI, SAN. with him,
L. A. YUSUF, ESQ.
Compiled by LawPavilion
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