ALHAJI SANI GARKIDA
ALHAJI ABUBAKAR UMAR
ABUBAKAR DATTT YAHAYA, JCA: This appeal arose from the judgment of the High Court of the Federal Capital Territory, delivered on the 20th of September 2011. The plaintiff at the trial court, Alhaji Abubakar Umar, is the respondent herein. He took out a Writ of Summons out of the High Court of the Federal Capital Territory (the trial court) claiming: -
1. A DECALARATON that the plaintiff is the lawful owner of shop 394, Block 36, Section A, Wuse Market, Abuja.
2. A DECLARATION that the plaintiff is entitled to the use, enjoyment and outright sate of Shop 394, Block 36, Section A, Wuse Market, Abuja without let or hindrance from the Defendant
3. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant whether by himself, his agents, assigns, cohorts, heirs or however known from disturbing the plaintiff's use and enjoyment of Shop 394, Block 36, Section A, Wuse Market, Abuja.
4. GENERAL DAMAGES of (N2,000,000 (Two Million Naira) against the Defendant in favour of the plaintiff for trespass to property and disturbing the plaintiff from the lawful use of Shop 394, Block 36, Section A, Wuse Market, Abuja.
The case of the plaintiff now respondent, is that he was the sub-tenant of the appellant, who was the defendant, at Shop No, 394, Block 36, Section A, Wuse Market Abuja FCT, owned by the Abuja Municipal Area Council through its Market Management Committee, Disputes arose between the plaintiff and the defendant which took them to the Magistrate Court in Abuja, but eventually, the matter was settled out of Court and a Memorandum of Settlement was signed. All the shops in the Wuse Market were then taken over by the Abuja Investment and property Development Company Ltd (AIPDCL), which revoked all leases and tenancies thereof. It then put up an advertorial for the sale of the Shops and invited interested buyers to bid. The plaintiff said he bid for the shop in dispute (No, 394 Wuse Market), via a bid form he obtained, paid the N10,000 for the Form and won the bid. He accepted the offer and paid the purchase price of N1,388,040.00. He was then issued a clearance slip. Later, the defendant laid claim to the same shop, stating that he was the one who bid and won. The matter was reported to the Magistrate Court at Jabi, where the plaintiff was charged for impersonation.
The plaintiff took out the Writ of Summons in respect of this case, and after trial, was given judgment.
The defendant, who denied the claim, also filed a counter-claim for the same shop. His counter claim was dismissed. Hence this appeal.
In the appellant's brief settled by A. I. Moro, two issues were identified thus -
1. Whether the trial judge properly evaluated the totality of evidence placed before him before arriving at the erroneous judgment that the plaintiff/defendant by counter claim owned shop No. 394 Block 36, Section A Wuse Market Abuja.
2. Whether the trial judge erred in law in dismissing the counter claim without considering the counter claim since it is a separate action from the plaintiff suit just in one sentence on page 112 of the Record of Appeal, "that the defendant's counter claim is hereby dismissed in its entirety."
The Respondent's brief distilled three issues-
1. Whether the judgment of the court in favour of the Plaintiff/Respondent is not supported by the evidence led at the trial on the issues joined at the close of pleadings? (This Issue is distilled from Ground 1 of the Grounds of Appeal).
2. Whether Grounds 2, 3 and 4 of the Grounds of Appeal raised in favour of DW3 are not otiose as DW3 is/was never a party to the suit at the trial court or to this appeal? This Issue is harvested from Ground 2, 3 and 4 of the Notice of Appeal.
3. Whether it is not the bounden duty of a trial court to dismiss a Counter Claim when the main claim founding the cause of action brought by the plaintiff succeeds? (This Issue is distilled from Ground 5 of the Grounds of Appeal).
On being served with the respondent's brief, the appellant filed a Reply brief deemed filed on the 29/2/16, which, apart from a few points, re-argued the appeal.
I adopt the issues raised by the appellant and I shall utilise them in resolving this appeal,
Whether the trial judge properly evaluated the totality of evidence placed before him before arriving at the erroneous judgment that the plaintiff/defendant by counter claim owned shop No. 394 Block 36, Section A Wuse Market Abuja.
In arguing this Issue, learned counsel for the appellant submitted, that a trial judge has a duty of analyzing the evidence led before him, assessing the weight of such evidence, and then determining which one preponderates. He placed reliance on USMAN VS. KISHA (2007) 11 NWLR (Pt. 1044) 148 at 198; OKAMGBA VS. EKE (2009) 16 NWLR (Pt. 1166) 13 -14 and OKONKWO VS. OKONKWO (2004) 5 NWLR (Pt. 865) 87 at 118. He then quoted the finding of the trial judge at page 111 of the Record, thus -
"In light of the decision of the authorities cited above vis-a-vis the evidence placed before the court, it is my considered opinion that the plaintiff did participate and win the bid of Shop 394 Block 36, Section A, Wuse Market, Abuja, (the subject matter of the Suit) as shown by exhibit nA8" having been issued with the exhibit A1 and A2",
and submitted, that the trial judge did not make any analysis of the evidence before he arrived at his decision, and that the decision was against the weight of evidence. He based his argument on his submission that there was no credible evidence showing that the plaintiff participated in the bidding process, since the evidence of the respondent showed that only the appellant and his nephew participated; only the appellant paid 10% of the bidding fee, a condition precedent to the bidding process; the respondent was not at the bidding venue; did not have a bidding identity card and did not produce any receipt for the payment of the bidding fee.
Learned counsel for the appellant further attacked the failure of the trial judge to resolve the issue of the bid form, as to who filled and signed it, and whose address is on it. He pointed out contradictions and untruths respecting the respondent. He submitted that the plaintiff showed in his Written Statement on Oath that he lived at 14 Road, 1st Avenue House 5, Gwarimpa Estate, Abuja FCT, but on being cross-examined, he said he had no address. Again, he said that the respondent said he used Shop 394, Block 36 Wuse Market Abuja, but that this is not on the bid form in controversy, which on its face, shows that No, 5, Alexandra Crescent, Wuse II Abuja, Garkida Press Ltd, P.O. Box 2254 Garki, Abuja, was used. Counsel then argued that the trial judge failed to resolve all these conflicts and contradictions and evaluate the evidence, before he arrived at his decision, making it perverse. He referred to OSUJI VS. EKEOCHA (2009) (Pt. 1166) 81 at 117.
Learned counsel for the appellant forcefully argued that the respondent is Abubakar Umar Yako, but is "falsely claiming" the named and signature of another person, Abubakar Umar, the nephew of the appellant, to be his own. He submitted that the respondent, Abubakar Umar Yako, "has cleverly impersonated" Abubakar Umar", in order to benefit from the ownership of Shop 394, Block 36, Section A, Wuse Market, Abuja." This is in line with the counter claim where the respondent as plaintiff averred at paragraph 23 (page 20 of the Record) that -
the Defendant by counter claim contrived, colluded and connived with officers of Abuja Investment and Property Company Limited to perpetrate and execute the fraudulent act of misrepresentation and impersonation."
Counsel therefore urged us to hold that failure to resolve all these issues before arriving at a decision, has rendered the decision unsupportable and perverse. He urged us to resolve the Issue in favour of the appellant.
For the respondent, learned counsel placed reliance on the case of NWOKIDU VS. OKANU (2010) 3 NWLR (Pt 1181) 362 at 395, on what an appellate court will seek to know, where the finding or non-finding of fact by a trial court in civil cases, is questioned. The appellate court would want to know -
(1) the evidence led;
(2) whether the trial court accepted or rejected
any evidence upon correct perception;
(3) whether there was correct assessment of the
evidence and probative value ascribed;
(4) whether the evidence had been weighed in an imaginary scale and
(5) which side had more weight in terms of quality.
He then submitted that by paragraphs 7 and 8 of the statement of claim, the respondent had pleaded purchase of bid form and participation in the bid exercise, and then led evidence in support of his pleadings. (Page 8 of the Record of Appeal). Although the appellant agreed that the respondent indeed bought the bid form, he alleged that it was relinquished to him by the respondent which was denied. It was for the appellant to prove this but he did not, he argued - ADIGHIJE VS. NWAOGU (2010) 12 NWLR (Pt. 1209) 419 at 459. This was more perplexing he argued, when Exhibit A8, was tendered in evidence without objection. The trial court needed not to have gone further to evaluate, but that if this Court is of the view that it should have done so, then this Court should evaluate the evidence since the materials are documentary.
Counsel for the respondent also submitted that the appellant had contradicted himself when in paragraph 11 of the counter claim, the appellant averred that the arrears of rent was N 62,500 but in paragraph 12 thereof, he claimed that he initially refunded the respondent the sum of N 10,000 for the bid Form relinquished. Counsel also pointed out that no issue was joined on the appellant carrying a separate bid Form, especially as the appellant had stated that it was the bid Form collected by the respondent that was relinquished to him. He urged us to affirm the judgment of the trial court.
A trial court has the primary duty of evaluating evidence led before it and to ascribe probative value to such evidence. It takes advantage of seeing the witnesses who testified before it, hearing them and observing their demeanour. It is after these, that the trial court will make its findings, and show on the record, how it arrived at the findings. Once the trial court embarks on this journey successfully, it has discharged its functions, and an appellate court is without power to begin to substitute its views, once there is evidence upon which the trial court based its findings.
On the other hand, if the trial court fails to take the advantage of seeing the witnesses and observing their demeanour, and it fails to evaluate the evidence led, i.e. to assess the evidence and show why it prefers one as against another, oral and documentary, its conclusion cannot be the result of a fair assessment - IMOH VS. ONANUGA (2013) 15 NWLR (Pt 1376) 139 and WACHUKWU VS. OWUNWANE (2011) 14 NWLR (Pt. 1266) 1. In such a situation, an appellate court will set aside the decision for being perverse -AJUBULU VS, AJAYI (2014) 2 NWLR (Pt. 1392) 483. A decision of the trial court will be perverse, if (a) it is contrary to the evidence led and the pleadings of the parties; (b) when extraneous matters were taken into consideration in arriving at the decision or when the court shuts its eyes to the obvious; (c) when miscarriage of justice is occasioned or (d) when the findings of facts are most unreasonable. Where there is a failure to evaluate evidence, an appellate court can step in and evaluate the evidence - HARUNA VS. A-G FEDERATION (2012) 9 NWLR (Pt. 1306) 419 and ADEBAYO VS. ADUSEI (2004) 4 NWLR (Pt. 862) 44. It must be noted however, that the appellate court will evaluate the evidence led, only when the demeanour of the witnesses pertaining to their credibility, is not called to question. See AGBABIAKA VS. SAIBU (1998) 10 NWLR (Pt 571) 534.
In the instant appeal, the trial judge did not capture in his judgment, the evidence that was led before him. He most certainly did not evaluate the evidence, by putting the evidence on two sides of an imaginary scale and weighing them to see which one preponderates in terms of quality, not quantity. He merely held (page 112 of the record) that -
"In the fight of the decision of the authorities cited above, vis-a-vis the evidence placed before the court it is my considered opinion that the plaintiff did participate and won the bid of shop No. 394, Section A Block 36 Wuse Market, Abuja (the subject matter of the Suit) as shown by Exhibit A8" having been issued with Exhibit "A1" and "A2"."
He continued -
.found it difficult to agree with testimony of DW3 that he is the owner of Exhibit A8'. Neither his photograph nor his signature is on the said Exhibit"
Thus, the trial judge failed to evaluate the evidence of the respondent as plaintiff, and the appellant as defendant, and his witnesses. He was also silent on the other exhibits. His findings as captured above, totally lost track of the crucial aspects of the case before him, both in the pleadings and in the evidence. Serious allegations of fraud and impersonation were raised against the respondent. Even though criminal allegations have to be proved beyond reasonable doubt - See RILWAN & PARTNERS VS. SKYE BANK PLC (2015) 1 NWLR (Pt. 1441) 437, the trial court ought not to have shut its eyes to the evidence led before it.
In the statement of defence (page 16 of the Record) a charge of connivance with the Abuja Investment and Property Development Company Limited, was made in order to defraud the appellant. The statement of DW1 on Oath, at paragraphs 20 and 22, raised the charges of connivance, collusion, fraudulent act of misrepresentation and impersonation, against the plaintiff now respondent. Again at paragraph 23 thereof, it is deposed thus
"the plaintiff is presently standing trial of impersonation at the Magistrate Court Jabi..."
The fundamental issue raised, which is crucial to the determination of the Suit, is whether the respondent as plaintiff is Abubakar Umar or Abubakar Umar Yako. In the Record of Proceeding of the Chief District Court 1 (page 46 of the Record) which had to do with the sub-tenancy issue, the respondent is shown as "Abubakar Umar", which is the name he said he used to bid for the shop in dispute. But in the proceedings of the Magistrate Court FCT, holden at Jabi Annex (page 56 of the Record), Abubakar Umar Yako" is shown as the defendant in the criminal case. Is it the same respondent herein? All these were crucial issues which the trial court ought to have adverted its mind to. It did not.
The trial judge has raised the issue of credibility of witnesses, in that he said he did not believe DW3. We cannot upset this, without observing the demeanour of DW3, and a corollary, the demeanour of the other witnesses. But that is not all. Is the respondent Abubakar Umar or Abvubakar Umar Yako? It is only when this question is answered, that the identity of the person who bid, participated in all the bidding processes and succeeded, can be ascertained and the Suit determined in a just manner. As stated above, paragraph 23 of the Statement on Oath of DW1 (the appellant herein) avers that the respondent is being tried at the Magistrate Court Jabi, for impersonation. There is nothing before us here, to show that judgment had been delivered in that case Suit No. CR/145/06 COMMISSIONER OF POLICE VS. ABUBAKAR UMAR YAKO Without a determination one way or another, we do not see how the Suit giving rise to this appeal could have been decisively and fairly determined.
It is disheartening, that there was total failure to evaluate the evidence led, before a conclusion was reached. To that extent Issue No 1 is resolved in favour of the appellant. But for the issue of. credibility of the witnesses, which clearly, would involve the observance of their demeanor, and the lack of certainty in the identity of the person who bid, won and purchased the Shop in dispute, this Court would have evaluated the evidence. As things stand, we are not in a position to so do.
Whether the trial judge erred in law in dismissing the counter claim without considering the counter claim, since it is a separate action from the plaintiff suit, just in one sentence on page 112 of the Record of Appeal "that the defendant's counter claim is hereby dismissed in its entirety.
Learned counsel for the appellant submitted, relying on OBI VS. BIWATER SHELLABEER NIG. LTD (1997) 1 NWLR (Pt 484); ANOZIA VS. A-G LAGOS STATE (2010) 15 NWLR (Pt 1216) 242 and ARINZE VS. AFRIBANK (NIG) PLC (2000) 7 NWLR (Pt. 665) 547, that a counter claim is a separate, independent action and a trial court should consider it and must give reasons for its decision. Here, the trial court dismissed the counter claim he said, but wrongly failed to give reasons for so doing.
In his response on this Issue, learned counsel for the respondent submitted that although a counter claim is a separate action, if it is so interwoven with the plaintiff's claim and the reliefs are the same, the reasons for the success of the plaintiff's claims, would be the reasons for the failure of the defendant's counter claim - DABUP VS. KOLO (1993) 9 NWLR (Pt. 317) 254 at 270 and 280.
In the instant appeal, the claims of the respondent as plaintiff, are the same as the claims of the appellant as the counter claimant. They both lay claim to have made a bid for the same shop No. 394, Block 36 Section A, Wuse Market, Abuja, and to have won the bid, resulting in the sale of the shop to them, by the same party. It follows therefore, that once the claims of the plaintiff now respondent succeeded, the counterclaim of the appellant must perforce, fail. It will be inconceivable in the instant case, for the claim of the respondent to succeed and for the counterclaim of the appellant to also succeed. No judgment could have been given in favour of the counterclaimant since the facts are intertwined and only one party can therefore succeed. See UNOKAN LTD VS. OMUVWIE (2005) 1 NWLR (Pt. 815) 38. I agree, that it would have been much neater, if the trial court had considered the counterclaim and had given reasons for dismissing same. However, the failure to do this has not caused any miscarriage of justice as both parties ought to be aware that the reasons given for the success of the claim are the same reasons that warranted the failure of the counterclaim. We see no reason to interfere thereby. Issue No. 2 is thus resolved in favour of the respondent.
Although Issue No. 2 has been resolved in favour of the respondent, it has not affected the fortunes of the appeal. Consequently, the appeal succeeds and it is allowed. The judgment of the trial court in Suit No. FCT/HC/1474/2009, delivered on the 20th of September 2011, is hereby set aside. We remit the Suit back to the Chief Judge of the High Court of Justice of the F.C.T Abuja for a re-hearing before another judge, who shall await the determination of the case at the Magistrate Court Jabi in Suit No. CR/145/06 COMMISSIONER OF POLICE VS. ABUBAKAR UMAR YAKO, regarding the true identity of the respondent herein, before commencing the re-hearing.
Parties to bear their costs.
TANI YUSUF HASSAN, (JCA): I had the privilege of reading the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA.
I am in complete agreement with the reasoning and conclusion that the appeal being meritorious should be allowed, and the suit be remitted back to the Chief Judge of the High Court of Justice of the FCT for re-trial before another judge.
Parties to bear their costs.
JOSEPH E. EKANEM. JCA: I read in advance the judgment which has just been delivered by my learned brother A, D. Yahaya, JCA. I agree with the reasoning and conclusion therein.
I also allow the appeal and set aside the judgment of the trial court, I abide by the consequential orders made in the judgment.
Alexander Moro for the appellant.
O. J. Aboje, with Peter Oche and Abubakar Muktar for the respondent;