Haruna v. Abuja Inv. & Property Dev. Co. Ltd (2021)

Harunav.AbujaInv.&PropertyDev.Co.Ltd.

ALH. USMAN HARUNA

V.

1.ABUJA INVESTMENT & PROPERTYDEVELOPMENT COMPANY LTD.

2.ABUJA MARKET MANAGEMENT LTD.

3.ABDULKADIR ABUBAKAR

SUPREME COURT OF NIGERIA

SC.630/2016

OLABODE RHODES-VIVOUR, J.S.C. (Presided)

MUSA DATTIJO MUHAMMAD, J.S.C.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.

ABDU ABOKI, J.S.C.

EMMANUEL AKOMAYE AGIM, J.S.C. (Read the Leading Judgment)

FRIDAY, 5TH FEBRUARY 2021

APPEAL – Argument in appeal – What must be based on.

APPEAL – Decision of court not appealed against – Treatment of.

APPEAL – Issue for determination – When derives from ground ofappeal.

APPEAL – Obiter of trial court on which decision is not based -Whether appellate court can rely on to vitiate a judgment.

APPEAL – Supreme Court – Frivolous and empty argument beforethe Supreme Court – Impropriety of.

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COURT – Obiter dictum – Opinion of Court of Appeal concurringwith obiter dictum of trial court – Effect of.

COURT – Obiter dictum – Opinion of court on issue not pleaded -Treatment of.

COURT – Obiter of trial court on which decision is not based -Whether appellate court can rely on to vitiate a judgment.

COURT – Supreme Court – Frivolous and empty argument beforethe Supreme Court – Impropriety of.

DOCUMENT – Authenticity of document – When should beconsidered.

EQUITY – Equity – When may aid a party.

EVIDENCE – Document – Authenticity of – When should beconsidered.

EVIDENCE – Impugning evidence of adverse party – Effect of.

EVIDENCE – Pleadings – Evidence at variance with – Treatment of.

JUDGMENT AND ORDER – Decision of court not appealedagainst – Treatment of.

JUDICIAL PRECEDENT – Obiter dictum – Opinion of Court ofAppeal concurring with obiter dictum of trial court – Effect of.

JUDICIAL PRECEDENT – Obiter dictum – Opinion of court onissue not pleaded – Treatment of.

JUDICIAL PRECEDENT – Obiter of trial court on which decisionis not based – Whether appellate court can rely on to vitiate ajudgment.

JUDICIAL PRECEDENT – Pronouncement of court that is notreason for a decision – Treatment of.

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LEGAL PRACTITIONER – Submission of counsel before court -Need for to be well founded.

PRACTICE AND PROCEDURE – Appeal – Argument in appeal -What must be based on.

PRACTICE AND PROCEDURE – Appeal – Issue for determination- When derives from ground of appeal.

PRACTICE AND PROCEDURE – Appeal – Obiter of trial court onwhich decision is not based – Whether appellate court can relyon to vitiate a judgment.

PRACTICE AND PROCEDURE – Pleading – Opinion of court onissue not pleaded – Treatment of.

PRACTICE AND PROCEDURE – Pleadings – Bindingness of onparties.

PRACTICE AND PROCEDURE – Pleadings – Evidence at variancewith – Treatment of.

PRACTICE AND PROCEDURE – Pleadings of parties – Bindingnessof.

PRACTICE AND PROCEDURE – Submission of counsel beforecourt – Need for to be well founded.

PRACTICE AND PROCEDURE – Supreme Court – Frivolous andempty argument before the Supreme Court – Impropriety of.

STARE DECISIS – Obiter dictum – Opinion of Court of Appealconcurring with obiter dictum of trial court – Effect of.

STARE DECISIS – Obiter dictum – Opinion of court on issue notpleaded – Treatment of.

STARE DECISIS – O biter of trial court on which decision is notbased – Whether appellate court can rely on to vitiate ajudgment.

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STARE DECISIS – Pronouncement of court that is not reason for adecision – Treatment of.

Issue:

Whether the High Court and Court of Appeal were rightto base their decisions on the unpleaded evidence offorgery and falsification of documents put in proof by theappellant.

Facts:

There was a controversy over the sale of a single shop in WuseMarket, Abuja, Federal Capital Territory, on which the appellantclaimed that he had fully paid for the purchase of the shop. Therespondents contended otherwise.

The appellant filed an action to lay claim to the shop and therespondents joined issues with him. At the conclusion of hearing,the trial court found against the claims of the appellant, basically onthe ground that the pleadings of the claimant admitted that he didnot fully pay for the shop as against the exhibit tendered which wasat variance with the pleadings.

Dissatisfied, the appellant appealed to the Court of Appeal,which affirmed the decision of the trial court to the effect that theappellant did not pay the full purchase price as and when due.Therefore, he did not complete the terms of sale or transfer and wasthus not entitled to the shop even as a previous occupier with rightof first refusal.

Further dissatisfied, the appellant appealed to the SupremeCourt.

Held (Unanimously dismissing the appeal):

1.On When authenticity of document should beconsidered –

Where a document is relevant in a case, forwhich reason it was admitted, issues related to itsauthenticity or otherwise sho uld be considered. (P.147, paras. G-H)

2.On Bindingness of pleadings on parties –

Parties are bound by their respective pleadings,

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and they cannot for that reason make a case atvariance with their pleadings. [American CyanamidCo. v. Vitality Pharmaceuticals Ltd. (1991) 2 NWLR(Pt. 171) 15; Osho v. Foreign Finance Corporation(1991) 4 NWLR (Pt. 184) 157; Buraimoh v. Esa(1990) 2 NWLR (Pt.133) 406 referred to.] (Pp. 147-148, paras. H-A)

3.On Bindingness of pleadings on parties and treatmentof evidence at variance with pleadings –

Parties are bound by their pleadings and any evidenceled by any of the parties which does not support theaverments in the pleadings, or put in another way,which is at variance with averments of the pleading,goes to no issue and must be disregarded by thecourt..[Yusuf v. Adegoke (2007) 1 NWLR (Pt. 1045)332 referred to.] (P. 151, paras. F-G)

4.On Treatment of evidence at variance with pleadings –

Where an evidence adduced by a party is at variancewith the pleadings thereof, the contradiction orinconsistency must be resolved in favour of theopposing party. In the instant case, the decisionof the trial court that the appellant鈥檚 evidencevide exhibits A3 and A4 that he had paid the fullpurchase price, goes to no issue because it was atvariance with the case in the statement of claimthat he had paid part of the purchase price but hadnot paid the remaining balance. [Egbuta v. Onuna(2007) 10 NWLR (Pt. 1042) 298 referred to.] (Pp.151-152, paras. H-A)

5.On Effect of impugning evidence of adverse party –

If evidence of an adverse party is impugned, it willhelp the case of party impugning the evidence.In the instant case, the failure of the appellant tocross-examine DW1 on the issue of alteration didnot help his case bef ore the trial court, especiallyconsidering the fact that there was nothing tocontradict what he said. [Akporo v. Ughalaa (1995)8 NWLR (Pt. 411) 128 referred to.] (P. 148, para. B)

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6.On Whether appellate court can rely on obiter oftrial court on which decision is not based to vitiate ajudgment –

Where a trial court did not base its decision on astatement made obiter that is not connected with theratio of the decision, an appellate court cannot relyon that obiter to vitiate the decision. In the instantcase, the trial court did not base its decision on theissue of alteration of exhibit A4 which was madeobiter. [Saude v. Abdullahi (1989) 5 NWLR (Pt. 116)387; Okpeji v. Minister of Agriculture (1997) 9 NWLR(Pt. 522) 693; Wema Bank Plc v. Brastem Sterr (Nig.)Ltd. (2011) 6 NWLR (Pt.1242) 58 referred to.] (Pp.148-149, paras. G-A)

7.On When equity may aid a party –

Equity takes pity but on the clean. If one seeksequity, the search must be with clean hands. Equitydoes not, because it exists on taking pity, exist tobe taken for a ride. It is a pity that does not haveeffect. In the instant case, the law must take itscourse. Even equity would not come to the aid ofthe appellant because he did not come with cleanhands. [Oilfield Supply Centre Ltd. v. Johnson (1987)2 NWLR (Pt.58) 625 referred to.] (P. 152, paras.B-D)

8.On Treatment of pronouncement of court that is notreason for a decision –

A pronouncement of a court that is not the reasonfor its decision or that did not influence the reasonfor the decision or on an issue not pleaded is anobiter. (P. 153, paras. B-C)

9.On Treatment of opinion of court on issue not pleaded –

When a trial court expresses an opinion on anissue not pleaded, such opinion is obiter dictum.[Bamgboye v. University of Ilorin (1999) 10 NWLR(Pt.622) 290; Odunukwe v. Ofomata (2010) 18 NWLR(Pt. 1225) 404 referred to.] (P. 153, para. C)

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  1. On Effect of opinion of Court of Appeal concurringwith obiter dictum of trial court –

Just as the obiter dictum of a trial court that has noinfluence on the reason for its judgment cannot bea ground for an appeal, the opinion of the Court ofAppeal concurring with that obiter does not makeit worthy of a further appeal. An appeal should befought on the basis of the decision and the reasonstherefor. It is not every pronouncement made by acourt that can be made the subject of an appeal.An opinion not forming the basis of a decision isnot appealable as it is obiter. In the instant case,the two issues raised in the appellant鈥檚 brief fordetermination challenging the Court of Appeal鈥檚decision related to the parts of the judgment ofthe trial court that were obiter dicta. Thus, even ifthis appeal succeeded the decision of the trial courtwould remain unaffected. [Onafowokan v. WemaBank Plc (2011) 12 NWLR (Pt. 1260) 24 referredto.] (P. 153, paras. D-F)

11.On Treatment of decision of court not appealed against-

A decision or finding not appealed against bythe parties in the case in which it is rendered, isdeemed accepted by them as correct, conclusiveand binging upon them. In the instant case, by notappealing against the decision of the trial court andconcurring decision of the Court of Appeal that thefull purchase price was not paid, the parties acceptedthem as correct, conclusive and binding upon them.Therefore, in the light of the unchallenged holdingof the trial court and the concurrent holding ofthe Court of Appeal, the appeal to the SupremeCourt would yield no useful result and remainedacademic. [Iyoho v. Effiong (2007) 11 NWLR Pt.1044) 31; Dabup v. Kolo (1993) 9 NWLR (Pt.317)254 referred to.] (Pp. 153-154, paras. G-B)

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Per OGUNWUMIJU, J.S.C. at pages 154-155,paras. H-B:

鈥淔rom the records, it is clear that whilereferences by the two lower courts were madeand related to the acknowledgment of theissue of alleged forgery of some documentstheir decisions were not based on that point.The most relevant point in this appeal is thatthere are concurrent findings of fact that theappellant had not paid the full purchase price.That finding was not appealed against. Since adecision not appealed against by the parties inthe case is deemed accepted by them as correct,conclusive and binding on them, there is reallyno live issue in this appeal.鈥�

12.On When an issue is said to derive from ground ofappeal –

An issue is said to derive from or be related to aground of appeal if it deals with the subject matterof the complaint in the ground of appeal. In theinstant case, it was glaring that the complaints inthe grounds of appeal were the same with the issuesraised for determination in the appellant鈥檚 brief.Therefore, there was no basis for the objection thatthe said issues did not derive from the grounds ofappeal. (P. 145, paras. B-C)

13.On What argument in appeal must be based on –

Arguments in an appeal must be based on andconsistent with the subject of the issue in supportof which they are made and must have a nexus withthe subject of the complaint in the ground of theappeal. Arguments not covered by any ground ofappeal is incompetent and useless. [Idika v. Erisi(1988) 2 NWLR (Pt. 78) 563; Western Steel WorksLtd. v. Iron & Steel Workers Union of Nigeria (1987)(No. 2) 1 NWLR (Pt.49) 284 referred to.] (P. 150,paras. C-D)

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14.On Impropriety of making frivolous and emptyargument before the Supreme Court –

It is professional misconduct to make frivolousand empty arguments, wastefully engaging judicialtime and resources in useless determinations in theSupreme Court and indeed any other court. It is moregrave when such obviously frivolous argumentsare made in the Supreme Court, where the issuesbrought for determination should be narroweddown to only genuine and legitimate disputes suchas novel, serious recondite, or difficult questions oflaw and errors of facts that cause miscarriage ofjustice. The Supreme Court being the apex courtof the land should not be an arena for all kindsof disputes and arguments. Issues in the disputesbetween parties should be narrowing as theyjourney towards the Supreme Court. Consideringthe current state of Nigerian law and legal systemthat allows all cases to be admitted in the SupremeCourt and the resulting very huge caseload, theSupreme Court must be allowed to focus on genuineissues and not distracted, beclouded and worn outby frivolous arguments. (P. 146, paras. C-E)

15.On Need for submission of counsel before court to bewell founded –

The submission of counsel in a case before a courtshould be well founded both in law and the facts,and well considered. It is unprofessional to makesubmissions that are obviously reckless in disregardof the facts in the record of court. (P. 146, para. B)

Nigerian Cases Referred to in the Judgment:

Akporo v. Ughalaa (1995) 8 NWLR (Pt. 411) 128

American Cyanamid Co. v. Vitality Pharmaceuticals Ltd.(1991) 2 NWLR (Pt. 171) 15

Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622)290

Buraimoh v. Esa (1990) 2 NWLR (Pt. 133) 406

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Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254

Egbuta v. Onuna (2007) 10 NWLR (Pt. 1042) 298

Idika v. Erisi (1988) 2 NWLR (Pt. 8) 563

Iyoho v. Effiong (2007) 11 NWLR (Pt. 1044) 31

Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404

Oilfield Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Pt.58) 625

Okpeji v. Minister of Agriculture (1997) 9 NWLR (Pt. 522)693

Onafowokan v. Wema Bank Plc (2011) 12 NWLR (Pt. 1260)24

Osho v. Foreign Finance Corp. (1991) 4 NWLR (Pt. 184) 157

Saude v. Abdullahi (1989) 5 NWLR (Pt. 116) 387

Wema Bank Plc v. Brastem-Sterr (Nig.) Ltd. (2011) 6 NWLR(Pt.1242) 58

Western Steel Works Ltd. v. Iron & Steel Workers Union ofNig. (1987) 1 NWLR (Pt. 49) 287

Yusuf v. Adegoke (2007) 1 NWLR (Pt. 1045) 332

Appeal:

This was an appeal against the decision of the Court of Appealaffirming the judgment of the High Court which dismissed theappellant鈥檚 claim. The Supreme Court, in a unanimous decision,dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Olabode Rhodes-Vivour, J.S.C. (Presided); Musa Dattijo Muhammad,J.S.C.; Helen Moronkeji Ogunwumiju, J.S.C.; AbduAboki, J.S.C.; Emmanuel Akomaye Agim, J.S.C. (Readthe Leading Judgment)

Appeal No.: SC.630/2016

Date of Judgment: Friday, 5th February 2021

Names of Counsel: W. Y. Mamman, Esq (with him,Hajara Halilu, Esq; Hadiza U. A. Attah, Esq and A. N.Muhammad, Esq) – for the Appellant

Oluwaseun Alabi, Esq (with him, Olushola Oguntimehin,Esq and Okpoko Charles, Esq) – for the 1 st and 2 ndRespondents

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Wilson Ivara, Esq – for the 3 rd Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Abuja

Names of Justices that sat on the appeal: Moore A.A.Adumien, J.C.A. (Presided); Joseph Eyo Ekanem,J.C.A.; Mohammed Mustapha, J.C.A. (Read the LeadingJudgment)

Appeal No.: CA/A/121/ 2012

Date of Judgment: Monday, 25th July 2016

Names of Counsel: Blessing Anazodo [Miss]) – for theAppellant

O. Alabi, Esq. – for the 1 st and 2 nd Respondents

W. Ivara.- for the 3 rd Respondent

High Court:

Name of the High Court: High Court of the FederalCapital Territory, Abuja

Name of the Judge: Musa, J.

Suit No.: FCT/HC/CV/12191/2007

Date of Judgment: Tuesday, 27th July 2010

Counsel:

W. Y. Mamman, Esq (with him, Hajara Halilu, Esq; Hadiza U.A. Attah, Esq and A. N. Muhammad, Esq) – for the Appellant

Oluwaseun Alabi, Esq (with him, Olushola Oguntimehin, Esqand Okpoko Charles, Esq) – for the 1 st and 2 nd Respondents

Wilson Ivara, Esq – for the 3 rd Respondent

AGIM, J.S. C. (Delivering the Leading Judgment): This appealwas commenced on 25/7/2016 when the appellant herein filed anotice of appeal against the judgment of the Court of Appeal sittingat Abuja delivered on 25/7/2016 in Appeal No. CA/A/121/ 2012dismissing the appeal and affirming the judgment of the High Courtof the Federal Capital Territory delivered on 27/7/2010 in suit No.FCT/HC/CV/12191/2007.

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The said notice of appeal contains 2 grounds for the appeal.

All parties herein have filed, exchanged and adopted theirrespective briefs as follows – appellant鈥檚 amended brief, 1st and 2ndrespondent鈥檚 amended brief and 3rd respondent鈥檚 amended brief.

The amended appellant鈥檚 brief raised the following issues fordetermination:

1.鈥淲hether the Court of Appeal erred in law when itheld that the learned trial judge did – not based, itsjudgment on foregoing and or alteration of the receiptwhich were tendered at the trial court.

2.The learned Justice of the Court of Appeal erred in lawwhen it held that the appellant counsel did not cross-examined the respondent witness on the allegation offorgery or alteration of the receipt known as exhibit鈥淎4鈥� at the trial court鈥�

The 1st and 2nd respondents鈥� amended brief raised one issue fordetermination as follows:

鈥淲hether the Court of Appeal was right in affirmingthe decision of the learned trial judge based on theevidence and the submissions available at the trialcourt鈥�.

The 3rd respondent鈥檚 amended brief raised one issue for determinationas follows –

鈥淲hether the Court of Appeal was right in holding thatappellant鈥檚 exhibit A4 receipt was altered鈥�.

The 1st and 2nd respondents and the 3rd respondent in their respectivebriefs raised and argued preliminary objections that issues Nos.1 and 2 in the appellant鈥檚 brief are incompetent because theydo not derive from the grounds of this appeal and deal with thejudgment of the trial court and not the decision of the Court ofAppeal. The appellant did not file a reply brief and did not respondto this objection. Be that as it is the merit of the objection must beconsidered, I now proceed to do so.

Let me consider the objection that the issues raised fordetermination in the appellant鈥檚 brief are not derived from any ofthe grounds of this appeal.

The said issues are reproduced in page 2 of this judgment. Themain parts of the two grounds for this appeal read as follows:

1.鈥淭he learned Justices of the Court of Appeal erred inlaw when they held that the learned trial Judge did not

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base his judgment on the forgery and/or alteration ofthe receipt which were tendered at the trial court.

2.The learned Justices of the Court of Appeal erred inlaw when held that the appellant counsel did not crossexamine the respondent witness on the allegation offorgery or alternation of the receipt know as exhibit鈥淎4鈥� at the trial court.鈥�

It is glaring that the complains in these grounds of appeal are thesame with the issues raised for determination in the appellant鈥檚brief. Therefore, there is no basis for the objection that the saidissues do not derive from the grounds of this appeal. An issue is saidto derive from or be related to a ground of appeal if it deals withthe subject matter of the complaint in the ground of appeal. Issues1 and 2 in the appellant鈥檚 brief deal with the subject matters of thegrounds 1 and 2 of this appeal in very similar language. Issue No.1raises the complaint in ground 1 as an issue for determination. Issue2 raises the complaint in ground 2 as an issue for determination. Inview of the very glaring similarities between the complains in thegrounds of appeal and the said issues raised for determination inthe appellants it is surprising that learned counsel for the 1st and 2ndrespondents and that for the 3rd respondent raised this objection. Letme consider the objection that the issues dealt with the judgment ofthe trial court and not that of the Court of Appeal.

It is glaring that ground 1 of this appeal and issue No. 1 derivedtherefrom complain against the part of the judgment of the Courtof Appeal that held that 鈥渕ost importantly, it is clear that the trialcourt did not base its decision on the alteration, which it mentionedby way of obiter and not in any way connected with ratio of thedecision鈥�

It is also glaring that ground 2 of this appeal and issue No. 2derived therefrom complaint against the part of the Court of Appealjudgment that reads thusly:

鈥淚t is important also to point out the failure of theplaintiff/appellant to cross examine DW1 on the issueof alteration did not help his case before the trialcourt, clearly if DW1鈥檚 evidence had been impugnedit would have gone a long way to help the appellant鈥檚case, especially in view of the fact that there is nothingto contradict what he said.

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In the light of the foregoing I am tempted to think that learnedcounsel for the 1st and 2nd respondents and the 3rd respondent didnot read the judgment of the Court of Appeal. If they had read thejudgment, they would have seen clearly that issues 1 and 2 of theappellant鈥檚 brief complaint against the portions of the Court ofAppeal judgment reproduced above. This ground of the objection isequally baseless and frivolous. The submission of counsel in a casebefore a court should be well founded both in law and the facts andwell considered. It is unprofessional to make submissions that areobviously in reckless disregard of the facts in the record of court.

It is professional misconduct to make this kind of frivolous andempty arguments, wastefully engaging judicial time and resourcesin useless determinations in this court and indeed any other court.It is more grave when such obviously frivolous arguments are madein this court, where the issues brought for determination should benarrowed down to only genuine and legitimate disputes such asnovel, serious recondite or difficult questions of law and errors offacts that cause miscarriage of justice. The Supreme Court beingthe apex court of the land should not be an arena for all kinds ofdisputes and arguments. Issues in the disputes between partiesshould be narrowing as they journey towards this court. Consideringthe current state of our law and legal system that allows all casesto be admitted in the Supreme Court and the resulting very hugecaseload, this court must be allowed to focus on genuine issues andnot distracted, beclouded and worn out by frivolous arguments.

As it is, the entire objections lack merit and are accordinglydismissed.

Having disposed of the preliminary objections, let me delveinto the merit of this appeal.

I will determine this appeal on the basis of the issues raised fordetermination in the appellant鈥檚 brief.

I will determine the two issues together.

I have carefully read and considered the arguments of bothsides on these issues. I will start the determination of these issuesby first considering what the Court of Appeal decided concerningthe bases of the judgment of the trial court.

To facilitate the understanding of the treatment of this issueand for ease of reference I reproduce here the exact text of thejudgment of the Court of Appeal as follows:

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鈥淚t is clear to this court from the record of appeal,that DW1 testified on the 9th of June 2000, and ledevidence to the effect that: exhibit A4 was issuedby my partner in the office by name AnthonyMargima while exhibit A3 I don鈥檛 know whoissue it. I denied it 鈥�. I can see first installmentand alterations because it there is any alterationwe must sign on it …. pages 220 to 221.

And even though he was cross examined on the same day by theplaintiff鈥檚 counsel, no question was put to him on the issue ofalteration of the receipt by way of cross examination.

The appellant鈥檚 pleading at pages 109 and 110 of the recordof appeal state at paragraphs 6, 7, 8, 11 and 12 to the effect that hewas able to pay 10% of the initial deposit, and an installment vide abank for N556,000.00, but could not pay the final balance in termsof the offer, see also witness statement of the appellant at page 7 ofthe record.

The appellant adopted this statement on the 26th February2009, and tendered documents which were admitted in evidence,including the receipt for the payment of N556,000 i.e. exhibit A4,which was clearly altered.

All the parties consistently used alteration as well as forgery,and the trial court evaluated the evidence, as much as it could,admirably, I must say, and came to the conclusion that the plaintiffappellant departed from the pleaded facts and made a new case atthe trial, see page 239 of the record of appeals as follows:

鈥淓xhibit A4 which is the receipt showing paymentof N556,000 dated 070307 indicated final paymentand exhibit A3 which is the receipt showing paymentof N1,970,000 dated 24/12/07 indicated secondinstallment. Sincerely I find it difficult to reconcilethese two exhibits vis-脿-vis deposition ….鈥�

This court cannot help but agree with learned counsel for the1st and 2nd respondents that where a document is relevant in a case,for which reason it was admitted, issues related to its authenticityor otherwise become fair game.

It is trite beyond dispute that parties are bound by theirrespective leadings, and they cannot for that reason make a case atvariance with their pleadings, the trial court cannot be faulted onthat. See American Cyanamid Company v. Vitality Pharmaceuticals

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Ltd. (1991) 2 NWLR (Pt. 171) 15; Osho & Anor. v. Foreign FinanceCorporation & Anor. (1991) 4 NWLR (Pt. 184) 157; Buraimoh v.Esa (1990) 4 SC 1; (1990) 2 NWLR (Pt. 133) 406.

It is important also to point out the failure of the plaintiff/appellant to cross examine DW1 on the issue of alteration didnot help his case before the trial court, clearly if DW1鈥檚 evidencehad been impugned it would have gone a long way to help theappellant鈥檚 case, especially in view of the fact that there is nothingto contradict what he said. See Akporo v. Ughalaa (1995) 8 NWLR(Pt. 411) page 128.

At the trial it should be noted again, as earlier pointed out thatthe appellant adopted his testimony, in which he admitted he onlypaid 100%, and an installment, and tendered several documents,including exhibit A4 which was altered, all purporting to have beenissued to him by the 1st and 2nd respondents, which were admittedin spite of objection on the ground that they were relevant, see page217 of the record of proceedings.

PW1 plaintiff/appellant also admitted at page 217 during cross-examination that all payments were to be made within 50 days, but鈥渋f they don鈥檛 want payment they might not give me receipt.

So the appellant鈥檚 contention at page 9 of his brief that therespondent ought to have objected when the document was tenderedclearly lost sight of the fact that indeed its admission in evidencewas objected to but admitted nonetheless on account of it beingrelevant.

The trial court was therefore right in the considered opinion ofthis court in holding the appellant to his pleadings, especially to hisclaim on the one hand that he did not pay the total cost, as opposedto his subsequent claim that he paid.

After the trial court had analyzed the effect of exhibit A3 andA4, which the appellant sought to use to make a case for payment infull, contrary to his pleadings, the court had to observe that exhibitA3 was later in time to exhibit A4 with the attendant alteration, seepages 239 of the record of appeal; and in any event the alterationis such that it could not have been raised at the stage of pleadings,as contended for the appellant, because it was on the face of theexhibit tendered and admitted, and the respondents could not haveenvisaged it, and most importantly it is clear that the trial courtdid not base its decision on the alteration, which it mentioned byway of orbiter only, and not in any way connected with the ratio

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of the decision. See Saude v. Abdullahi (1989) 5 NWLR (Pt. 116)387(SC); Okpeji v. Minister of Agriculture (1997) 9 NWLR (Pt.522) 693(CA) and Wema Bank Plc v. Brastem-Sterr Nig. Ltd.(2010) LPELR-9166(CA); (2011) 6 NWLR (Pt. 1242) 58.

It is for these reasons that this court finds that the trial courtrightly based its judgment on evidence adduced, and not on finaladdress of counsel as contended, and the allegation of alterationwas such that it did not require proof beyond reasonable doubt,accordingly the sole issue is resolved in favour of the respondents,and against the appellant.

Having resolved the sole issue in favour of the respondents,and against the appellant, the appeal fails for lack of merit, and it ishereby dismissed. The judgment of the trial court is affirmed.

It is obvious from the express terms of the judgment of theCourt of Appeal that it decided that the trial court did not base itsdecision on the alteration in exhibit A4 or on the failure to crossexamine DW1 on the alteration in exhibit A4 and that the decisionwas based on the variance between the case of the plaintiff in hisstatement of claim that he was only able to pay 10% of the purchaseprice as initial deposit and a first installment of N556,000.00 andhis evidence that he paid N556,000.00 as final installment, that hethereby changed his case to a different one in his evidence and thatthe pronouncement of the trial court on the alteration in exhibit A4and the failure of cross-examine DW1 on the alteration in exhibitA4 were mere obiter.

Learned counsel for the appellant opened the argument on IssueNo 1 with the assertion that the Court of Appeal erred in law when itheld that the trial court did not base its judgment on the alteration inexhibit A4, but did not in his further argument demonstrate reasonsfor that assertion. Rather learned counsel changed the paradigmof his argument to arguing that the decision of the trial court thatexhibit A4 was altered is wrong because the allegation of alterationor forgery of exhibit A4 was not proved beyond reasonable doubt,that the issue was raised for the first time in the final written addressof the defence. Learned counsel for the appellant further arguedthat the trial court relied heavily on the said final address to decidethat exhibit A4 is falsified and discountenanced the amount inexhibit A4 and accepted a lesser sum in exhibit A3, holding thatthe appellant did not pay the full purchase price for the shop andthat this occasioned a miscarriage of justice. These arguments do

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not address the subject matter of issue No. 1, which is whether thetrial court based its decision that the appellant did not pay the fullprice of the shop on the alteration in exhibit A4. The issue is notwhether the decision in of the trial court that exhibit A4 was alteredis correct. So the arguments are incompetent for being incongruouswith issue No. 1 in respect of which they were made. They have nonexus to the issue and so do not address it.

In addition, they have no nexus with any of the grounds ofappeal. There is no ground of this appeal complaining that thedecision of the trial court that exhibit A4 was altered is wrong.

Arguments in an appeal must be based on and consistent with thesubject of the issue in support of which they are made and musthave a nexus with the subject of the complaint in the ground ofthe appeal. Arguments not covered by any ground of appeal isincompetent and useless. See Idika & Ors. v. Erisi & Ors. (1988)5 SCNJ 28; (1988) 2 NWLR (Pt. 78) 563 and Western Steel WorksLtd. & Ors. v. Iron & Steel Workers Union of Nigeria (1987) 2SCNJ; (1987) 1 NWLR (Pt. 49) 284.

In any case, it is clear from the text of the judgment of thetrial court that the Court of Appeal correctly held that the trialcourt decision dismissing the plaintiff鈥檚 claim and granting the 3rddefendant鈥檚 counter claim was not based on its view that exhibitA4 was altered and that DW1 was not cross examined on the saidalteration and was based on its decision that his evidence did notsupport the case he presented in his pleadings and changed it into anew one.

The trial court judgment reads thusly:

鈥淓xhibit A4 which is the receipt showing payment ofN556,000.00 dated 07/03/07 indicated final paymentand exhibit A3 which is the receipt showing paymentof N1,970,000.00 dated 24/12/07 indicated secondinstallment. Sincerely, I find it difficult to reconcilethese two exhibits vis-脿-vis depositions in theamended statement of claim of the plaintiff, especiallyparagraphs 11 and 12.

Before I proceed, let me reproduce the said paragraphshere:

Paragraph 11 reads thus:

鈥淭he plaintiff avers that he made frantic effortsto payoff the remaining balance as full and final

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installment payment in respect of his Shop 208, Block19, Wuse Modern Market but the 1st and 2nd defendantsare not willing to accept same.鈥�

Paragraph 12 reads thus:

鈥淧laintiff avers that even as the defendantsrefused to accept the balance sum of the full andfinal installment payment in respect of the saidshop, yet the defendants have not made attemptto pay him back his deposited sum鈥�

Exhibits A3 and A4 tendered by the plaintiff are theeffect that the plaintiff has fully paid for the shop inquestion while the depositions in the quoted paragraphsabove are saying something different. Therefore, if Imust ask, which is the court going to take or belief?

Surprisingly, even exhibit A4 which indicated finalinstallment was dared earlier than exhibit A3 whichindicated second installment. The date of exhibit A3was out of time.

Moreso, DW1 denied exhibit A3 in examinationin chief and was not cross examined on that by theplaintiff鈥檚 counsel.

Let me pause here and state here and state the law,it is settled law that parties to litigation are bound bytheir pleadings. In support, I call in Civil SupremeCourt decision in Yusuf v. Adegoke (2007) 1 NWLR(Pt. 1045) 332 at 353, paras. C-D Per Aderemi JSC.Thus:

鈥淚 start by saying that it is now a trite principle oflaw that parties are bound by their pleadings andthat any evidence led by any of the parties whichdoes not support the averments in the pleadings,or put in another way, which is at variance withaverments of the pleading goes to no issue andmust be disregarded by the court.鈥�

In a similar vein, I refer to the case of Egbuta v. Onuna(2007) 10 NWLR (Pt. 1042) 298 at 311 Paragraph D,where it was held thus:

鈥溾€�.. it is trite that where an evidence adduced by aparty is at variance with the pleadings thereof, the

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contradiction or inconsistency must be resolvedin favour of the opposing party.鈥�

At this juncture, I must say that I cannot dootherwise, my hands are tight. The law must take itscourse. Even equity, I do not think it will come to theaid of the plaintiff because he that comes to equity,must come with clean hands. This position was takenby the Supreme Court in the case of Oilfield SupplyCentre Ltd. v. Joseph Lioyo Johnson (1987) All NLR(Vol. 1) (Pt. 1) pg. 321 at 335; (1987) 2 NWLR (Pt. 58)625 per Eko, JSC:

鈥淓quity takes pity but on the clean. If you seekequity, the search must be with clean hands.Equity, therefore, does not, because it exists ontaking pity, exist to be taken for a ride. It is a pitythat does contain fire in it.鈥�

Before I conclude on this issue, with respect, I amin agreement with the submission of counsel to the1st and 2nd defendants that exhibit A4 was temperedwith by changing same from first installment to finalinstallment. This can be seen clearly from the face ofthe said exhibit.

I think I have enough on this issue. I can stop here toavoid repeating myself. To this end, therefore I resolvethis issue in favour of defendants against the plaintiff.鈥�

It is glaring from this judgment of the trial court that the reasonfor its decision that the appellant did not complete the payment ofthe purchase price of the shop, that he thereby breached the contractof sale of the shop to him by 1st and 2nd respondents and that thebreach warranted the rescission of the contract and the forfeiture ofthe right given to him under the contract is that since the case of theappellant in his statement of claim is that after the deposit of 10%of the purchase price and paying the installment of N556,000.00he could not pay the final installment and did not complete thepayment of the purchase price because the 1st and 2nd respondentsrefused to receive the money, his evidence vide exhibits A3 andA4 that he paid the full purchase price is contrary to the case hepresented for trial in his statement of claim and therefore go tono issue. It is obvious that the trial court鈥檚 pronouncement on thealteration in exhibit A4 and the non-cross examination of the DW1

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on the alteration of exhibit A4 were made obiter to show that thesaid evidence is not reliable. It is obiter because it is not the reasonfor the decision. The evidence was legally inadmissible being atvariance with the facts pleaded in the statement of claim. The trialcourt disregarded the evidence not because of the alteration, butbecause it was at variance with the statement of claim and thereforenot legally admissible.

A pronouncement of a court that is not the reason for itsdecision or that did not influence the reason for the decision oron an issue not pleaded is clearly obiter. This court in Bamgboyev. University of Ilorin (1999) 6 SC (Pt. II) 72; (1999) 10 NWLR(Pt. 622) 290 held that when a trial court expresses an opinionon an issue not pleaded, such opinion is obiter dictum. See alsoOdunukwe v. Ofomata & anor. (2010) LPELR-2250 (SC); (2010)18 NWLR (Pt. 1225) 404.

As it is the two issues raised in the appellant鈥檚 brief fordetermination challenge the Court of Appeal decision as it relatesto the parts of the judgment of the trial court that were clearly obiterdicta. So that even if this appeal succeeds the decision of the trialcourt would remain unaffected.

Just as the obiter dictum of a trial court that has no influenceon the reason for its judgment cannot be a ground for an appeal,the opinion of the court of appeal concurring with that obiter doesnot make it worthy of a further appeal. An appeal should be foughton the basis of the decision and the reasons therefor. It is not everypronouncement made by a court that can be made the subject ofan appeal. An opinion not forming the basis of a decision is notappealable as it is obiter. See Onafowokan & Ors. v. Wema BankPlc & Ors. (2011) LPELR-2665 (SC); (2011) 12 NWLR (Pt. 1260)24.

The decision of the trial court that the appellant鈥檚 evidencevide exhibits A3 and A4 that he has paid the full purchase price goesto no issue because it is at variance with this case in the statementof claim that he has paid part of the purchase price and has not paidthe remaining balance was not appealed against. There is no groundof this appeal complaining against the part of the Court of Appealdecision concurring with the said holding of the trial court. By notappealing against the decision of the trial court and concurringdecision of the Court of Appeal Court, the parties accepted themas correct, conclusive and binding upon them. It is settled law that

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a decision or finding not appealed against by the parties in the casein which it is rendered, is deemed accepted by them as correct,conclusive and binging upon them. See Iyoho v. Effiong (2007) 4SC (Pt. II) 90; (2007) 11 NWLR (Pt. 1044) 31 and Dabup v. Kolo(1993) 12 SCNJ 1; (1993) 9 NWLR (Pt. 317) 254.

In the light of the unchallenged holding of the trial court andthe concurrent holding of the Court of Appeal, this appeal wouldyield no useful result and remains academic.

In the light of the foregoing, I hold that this appeal lacks meritand therefore fails. It is hereby dismissed. The appellant shall paycosts of N200,000.00 to the respondent.

RHODES-VIVOUR, J.S.C.: I read a draft of the leading judgmentdelivered by my learned brother, Agim, JSC. For the reasons givenI, too find no merit in the appeal. It is accordingly dismissed withcosts of N200,000 to the respondent.

M.D. MUHAMMAD, J.S.C.: I had a preview of the leadjudgment of my learned brother Emmanuel Akomaye Agim, JSCjust delivered. I adopt the reasoning and conclusion proffered inthe said judgment as mine in dismissing the unmeritorious appeal. Iabide by the order on costs made in the lead judgment.

OGUNWUMIJU, J.S.C.: I have had the privilege of reading indraft the judgment just delivered by my learned brother EmmanuelAkomaye Agim, JSC. I agree that the appeal be dismissed.

This appeal is based on a controversy over the sale of asingle shop in Wuse Market, Abuja, Federal Capital Territory.Concurrent- findings of fact were made by the High Court and theCourt of Appeal to the effect that the appellant did not pay the fullpurchase price as at when due and did not therefore complete theterms of sale or transfer and was thus not entitled to the shop evenas a previous occupier with right of first refusal. The main issuefor determination is whether the High Court and Court of Appealwere right to base their decisions on the unpleaded evidence offorgery and falsification of documents put in proof by the appellant.From the records, it is clear that while references by the two lower

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courts were made and related to the acknowledgment of the issue ofalleged forgery of some documents their decisions were not basedon that point. The most relevant point in this appeal is that thereare concurrent findings of fact that the appellant had not paid thefull purchase price. That finding was not appealed against. Since adecision not appealed against by the parties in the case is deemedaccepted by them as correct, conclusive and binding on them, thereis really no live issue in this appeal.

This appeal is a useless exercise in futility. The abstract issuessettled for determination by the appellant cannot do anything tofurther the interest of the appellant.

The appeal lacks merit and is hereby dismissed. I award thesum of N200,000.00 to each of the respondents.

ABOKI, J.S.C.: I am in agreement with the judgment justdelivered by my learned brother, Emmanuel Akomaye Agim, JSC.For emphasis on the reasoning of the decision, I shall chip in someComments, as follows:

This appeal, is against the judgment of the Court of Appealholden at Abuja, delivered on Monday the 25th Day of July, 2016affirming the decision of the High Court of the Federal CapitalTerritory, Abuja.

The concise statement of facts is that the appellant, operatinghis business as the original allottee of shop No. 208 Block 19 WuseModern market Abuja since its inception participated in the biddingexercise for the sale of shops at Wuse market via a letter of offerdated the 30th day of January, 2007 issued by the 1st Respondent.He had occupied the same shop which he bidded at the rate of N1.8Million and paid the鈥� N180,000.00, which is the 10% of the totalsum via First Inland Bank cheque.

Since there was a higher bidder, the appellant said heexercised his right to match by paying the sum of N556,000.00and the shop was offered to him. Later, the 1st and 2nd respondentsordered the Appellant to vacate the said shop on grounds that it hadbeen reallocated to the 3rd respondent due to the appellant鈥檚 defaultin paying the full and final instalment sum as and when due. Theappellant thereafter paid the said sum and a receipt was issued tohim by the 1st & 2nd respondents. Despite the payment of the sum,

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the 3rd respondent continued to threaten the appellant and forcefullyattempted to eject the appellant from the shop.

The appellant thereby filed an action at the trial court,seeking an order restraining the respondents and any other personsacting under their instructions from further interfering with thepeaceful enjoyment of the shop and a declaration that the said shopbelonged to him.

Judgment was entered in favour of the respondents and theappellant, dissatisfied with the judgment of the trial court appealedto the lower court on six grounds.

The lower court dismissed the appeal and affirmed thejudgment of the trial court, hence the appellant鈥檚 further appeal tothis court. The most relevant point in this appeal is the concurrentfindings of the courts below, which I agree with to the effect that theappellant did not pay the full purchase price as and when due anddid not therefore fulfil the terms of sale or transfer.

The appellant at paragraph 4 of his witness statement onoath page 7 of the record, said he only paid 10% of the rate. Hehowever admitted at paragraph 9 that he could not pay off the fulland final instalment payment for the shop.

The lower court had affirmed the decision of the trial courtthat:

鈥淓xhibit A4 which is the receipt showing paymentof N556,000 dated 07/03/07 indicated final. paymentand exhibit A3 which is the receipt showing paymentof N1,970,00 dated 24/12/07 indicated secondinstallment. Sincerely, I find it difficult to reconcilethese exhibits, vis-脿-vis depositions …鈥�

I also observe that exhibit A4, which was purportedly issued forfinal payment, was first in time to exhibit A3, which was indicated assecond installment. The lower court was therefore right in holdingthat the appellant鈥檚 evidence was at variance with his pleadings andthat the respondents were entitled to their counter-claim.

From the above and the well-articulated reasoning in the leadjudgment, I also hold that this appeal is unmeritorious and it ishereby dismissed.

I abide by the consequential orders contained in the leadjudgment.

Appe al dismissed.

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