⦿ CASE SUMMARY OF:
Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005) – CA
by PaulPipar
⦿ PARTIES
APPELLANTS
1. Emmanuel Omozeghian
v.
RESPONDENTS
1. Chief J. J. Adjarho
2. Francis Iruvbeh
⦿ CITATION
(2005) LPELR-7489(CA);
(2006) 4 NWLR (Pt.969)33;
⦿ COURT
Court of Appeal
⦿LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie, JCA
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– O. V. Omoijahe, Esq
FOR THE RESPONDENT
– S. O. Agwinede, Esq.
⦿ FACT
The appellant, a retired driver with the Edo State Civil Service is the owner of a house situated at and known as No. 18 Good Samaritan Road, Uselu, Benin City, where he lives with his family and some rent paying tenants.
He entered into a hire purchase agreement for the purchase of a vehicle in April 1994, and when he could not pay accumulated monthly installments of N30,000.00 (thirty thousand Naira) the hire purchase company seized the vehicle from him. To assist the appellant, the 2nd respondent took him to the 1st respondent on the 5th of September, 1995 to secure a loan.
According to the appellant, the 1st respondent agreed to lend him the sum of N150,000.00 (One hundred and fifty thousand Naira) at an interest rate of 35% repayable by the 5th of September, 1996 but the 1st respondent’s lawyer in collusion with the 1st respondent prepared a sale agreement for his house, which was read over to the illiterate appellant as a loan agreement, which he signed.
The appellant claimed that he discovered the fraud the following year when he went to the 1st respondent to plead for more time to repay the loan and was told that the agreement he signed was for the sale of his house and this was followed with a letter dated 26th August, 1996 and headed “Reminder of Sales Agreement of 5/9/95” telling the appellant to vacate the house for the 1st respondent on or before the 4th day of September, 1996.
It was on the receipt of this letter that the appellant brought out the agreement for someone to read to him and was shocked to be told that the document said that he had sold his house to the 1st respondent for N780,000.00 (seven hundred and eighty thousand Naira).
The 1st respondent thereafter caused a “Not for Sale” sign and his name to be painted on the appellant’s house.
Alarmed at this development, the appellant instituted an action against the respondents at the High Court of Justice, Benin City
⦿ ISSUE
1. Whether from the quality and quantity of the evidence adduced before the lower court, the learned trial Judge was justified in holding that the appellant has not proved his case as required by law and consequently dismissing same?
2. Whether a party who is charged with the responsibility of obtaining consent under the Land Use Act, 1978 to a Deed of Transfer but failed to do so can turn round to challenge the validity of the Deed to evade his obligation thereunder, on the ground that the required consent of the Governor was not obtained thereto?
3. Whether the learned trial Judge properly reviewed, evaluated and appraised the evidence adduced before him before arriving at his conclusion and final judgment?
⦿ HOLDING
The appeal was dismissed as it lacked merit, and order as to cost was not awarded.
1. On issue 1, the Court answered in the affirmative.
2. On issue 2, the Court of Appeal held, “The law is also clear that an agreement to sell land entered into before the securing of the Governor’s consent is not prohibited within the meaning of sections 22 and 26 of the Land Use Act 1978, and cannot therefore be null and void because the Land Use Act does not prohibit a written agreement to transfer and alienate land so long as such a written agreement is understood and entered into subject to the consent of the Governor”; “What this means is that exhibit D in this case, wherein the appellant covenanted to “obtain the Governor’s consent and make a proper Deed of Assignment in favour of” the 1st respondent “whenever he is called upon to do so” is valid even though executed before the Governor’s consent was obtained. More importantly, as the respondents rightly submitted, the appellant cannot take advantage of the fact that the said Governor’s consent had not been obtained and attempt to defeat a valid deal as this one he entered into”;
3. On issue 3, the Court of Appeal held, “To attack the findings of fact by a trial court, the appellant must therefore show that the views expressed is wrong or perverse, or that the trial court failed to use or palpably misused its advantage of seeing the witnesses – see Awudu v. Daniel (supra). In this case, it is my firm view that the lower court made good use of its opportunity of seeing and hearing the witnesses during the trial and did justice in this case and I so hold.”
⦿ REFERENCED
Sections 22, 26 & 34 of the Land Use Act, 1978;
⦿ SOME PROVISIONS
⦿ NOTABLE DICTA
The duty of ascribing probative value to evidence is primarily that of the trial court. This duty is based on the fact that the trial court, unlike the appellate court, has the advantage of seeing and observing the witnesses’ demeanor, candour or partisanship as the case may be, their integrity, manners and comportment, and assessing the background from which the witnesses testify while testifying and drawing necessary inferences. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
An “illiterate” within the meaning of the Illiterates Protection Law is a person who is unable to read with understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf; that is a person who is totally illiterate. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
A person who is unable to read or write the language in which a particular document is written but who can read or write in some other language, is not an illiterate within the meaning of the Illiterates Protection Act. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
Fraud is a matter with the implication of criminality and it is trite law that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
Sentiments command no place in judicial deliberations – see Ezeago v. Ohaneyere (1978) 6 – 7 SC 171. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
Besides, ignorance of the law as opposed to ignorance of the facts has never afforded any body an excuse; for everybody is supposed to know the law; the maxim is Ignorantia juris quod quisque scire tenetur excusat [Ignorance of the law which everybody is supposed to know does not excuse]. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
It is trite law that it is not every error in a judgment that will lead automatically to its reversal; the error must be substantial, and must occasion a miscarriage of justice before an Appellate Court is bound to interfere. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
It is the prerogative of the trial court to believe or disbelieve a witness, and evidence, which is credible and is effectively uncontradicted by any other evidence, is the kind of evidence a trial court usually accepts and acts upon, not evidence, which is found not credible or has no probative value. Credible evidence is evidence worthy of belief, and for evidence to be worthy of credit, it must not only proceed from a credible source but must be “credible” in itself, in the sense that it should so natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe it. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
This case was hinged on the credibility or otherwise of the appellant, and the credibility of a witness is a matter for a trial Judge, not an appellate Judge. The witness is seen by the trial Judge, while an appellate Judge reads the evidence of a witness from the record and is certainly not in a position to determine the credibility of a witness, because it did not have the opportunity of observing the demeanor of the witness, which is one vital way of assessing credibility. – Amina Adamu Augie, JCA. Emmanuel Omozeghian v. Chief J. J. Adjarho & Anor (2005)
