MOBIL PRODUCING (NIG) UNLTD v. HOPE

CITATION: (2016) LPELR-41191(CA)

In the Court of AppealIn the Calabar Judicial Division

Holden at Calabar

ON TUESDAY, 19TH APRIL, 2016Suit No: CA/C/243/2012

Before Their Lordships:

IBRAHIM MOHAMMED MUSA SAULAWA Justice, Court of AppealPAUL OBI ELECHI Justice, Court of AppealJOSEPH OLUBUNMI KAYODE OYEWOLE Justice, Court of Appeal

BetweenMOBIL PROD. NIG. UNLTD - Appellant(s)

AndLAWRENCE DICKSON HOPE(Carrying on Business under the name & Style ofHOHADA SPECIAL SERVICES)

- Respondent(s)

RATIO DECIDENDI

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1. CRIMINAL LAW AND PROCEDURE -OFFENCE OF FORGERY: Position of thelaw as regards the offence of forgery"It is trite, that while it is true that there isa distinction between fraud and forgery,and forgery contains elements that are notincluded in fraud, forgeries are a speciesof fraud. In essence, the crime of forgeryinvolves the making, a l ter ing, orcompleting of an instrument by someoneother than the ostensible maker or draweror an agent of the ostensible maker ordrawer. See Black's Law Dictionary (supra)@ 677."Per SAULAWA, J.C.A. (Pp. 26-27,Paras. E-A) - read in context

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2. EVIDENCE - BURDEN OF PROOF/ONUSOF PROOF: On whom lies the burden ofproof where a document is alleged to beforged"... The defendant case is that the twoExhibits are forged and that DW2 did notmake them. In such a case, the burden ofproof of the forgery rests on the party whoalleges. Since forgery is a crime, the onusof proof on him who alleges is proofbeyond reasonable doubt. See the case ofEdohoeket v. Inyang (2010) 7 NWLR (Pt.1192) page 25 Held II. In this case, thedefendant denied that Exhibit E dated26th September, 1984 and Exhibit G dated6th November, 1984 are its documents.DW2 in his evidence denied them. He saidhe d id not s ign them. He had theopportunity of testifying in the case. Hedid not seek the leave or the Court to writeor made his correct signature before theCourt. He lost that opportunity but thedefendant must prove the forgery beyondreasonable doubt. I think I cannot agreemore with the above cogent finding, whichis obviously supported by the evidence onthe record and trite fundamental principlesof law."Per SAULAWA, J.C.A. (Pp. 25-26,Paras. D-B) - read in context

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3. E V I D E N C E - B U R D E N O FPROOF/STANDARD OF PROOF: Burdenand standard of proof required for theoffence of forgery"Indeed, it's a trite and fundamentalprinciple, that allegation of forgerytantamount to an imputation of crime.Thus, where a party denies making adocument thereby alleging that it isforged, the burden of proving the allegedforgery rests upon him. And that sinceforgery is for all intent and purposes acrime, the onus of proof upon the partyalleging same is proof beyond reasonabledoubt. See Section 138(1) of the EvidenceAct; EDOHOEKET v. INYANG (2010) 7NWLR (Pt. 1192) 25 @ 57 Paragraph BD;ESEWO v. UKPONG (1999) 6 NWLR (Pt.608) 611; IKOLI v. OLI (1962) 1 SCNLR307; AMAD v. ORISAKWE (2005) 7 NWLR(Pt. 924) 385."Per SAULAWA, J.C.A. (P. 27,Paras. A-D) - read in context

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4. E V I D E N C E - D O C U M E N T A R YEVIDENCE: Duty of a Court to comparesignatures in documents before coming toa conclusion"By the authoritative decision of the ApexCourt in ADENLE v. OLUDE (supra) vis-à-visthe provisions of Section 101 of theEvidence Act (supra), the Court below andindeed any trial Court for that matter, hasa duty to take the initiative of making thenecessary comparison of signatures indocumentary exhibits before it beforecoming to a reasonable conclusion in thematter. See ADENLE v. OLUDE (supra) @432 Paragraphs A-E; TEICH v. NORTHERNINT-MARKET CO. LTD. (1987) 4 NWLR (Pt.65) 441; R v. SMITH 3 C.A.R. 87; R. vRICKARD 13 C.A.R. 140; R. v APPEA (1951)13 WACA 143; WILCOX v. THE QUEEN(1961) 2 SCNLR 296."Per SAULAWA, J.C.A. (Pp. 29-30, Paras. F-C)- read in context

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5. EVIDENCE - STANDARD OF PROOF: Therequired standard of proof where thecommission of crime is in issue in anyproceedings"Allegations of crime in civil transactionsmust be proved beyond reasonable doubtfailing which they would be appropriatelydiscountenanced. See Section 135(1)Evidence Act, 2011 (138 (1) Evidence Act,(1990) and UKEJE v. UKEJE (2014) 58NSCQR 487."Per OYEWOLE, J.C.A. (P. 43, Paras. E-F) -read in context

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6. PRACTICE AND PROCEDURE - MISTAKEOF COUNSEL/COURT/REGISTRY:Whether the mistake of counsel can bevisited on the litigant"It is a well settled doctrine that the sin ofcounsel should not visited upon the clientthereof does not amount to giving a blankcheque to parties. The application of thatrule is not merely as a matter of course.Thus, it applies only where the mistake ofcounsel involves procedural matters thatt h e C o u r t c a n a l l o w n e c e s s a r yamendment. However, where it is soobvious, as in the instant case, that themistake of counsel is self created, theAppellant cannot be heard to complain.See AKANBI v. ALAO (1989) 3 NWLR (Pt.108) 118 @ 140 Paragraph A; 154 @Paragraphs C-D; C.P.C. v. INEC (2011) 18NWLR (Pt. 279) 493 @ 571 Paragraphs C-D; ROEGBU v. OKWORDU (1990) 6 NWLR(Pt. 159) 643 @ Paragraphs B-C, et al."Per SAULAWA, J.C.A. (Pp. 41-42, Paras. D-A) - read in context

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7. PRACTICE AND PROCEDURE - MISTAKEOF COUNSEL/COURT/REGISTRY:Whether the mistake of counsel can bevisited on the litigant"Indeed it's a trite fundamental principlethat the Court does not normally punish alitigant for the sin (mistake) of the counselthereof. See AHMADU v. SALAWA (1974) 1ANLR (Pt. 2) 318, SC 43; AKINYEDE v. THEAPPRAISER (1971) 1 ANLR 162; BAWAJE v.ADEDIWURA (1976) 6 SC 147; OGUNDOYINv. ADEYEMI (2001) 13 NWLR (Pt. 730) 403@ 419-420 Paragraphs G-E; AKANBI v.ALAO (1989) 3 NWLR (Pt. 3) NWLR 118 @154 Paragraphs F-G; OGBOGORO v.OMENUWOMA (2005) 1 NWLR (Pt. 906) 1@ 16 Paragraphs A-D."Per SAULAWA, J.C.A. (Pp. 40-41, Paras. D-A) - read in context

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8. WORDS AND PHRASES - "FORGERY":Meaning of "forgery""The term forgery denotes the act offraudulently making a false document oraltering a real one to be used as ifgenuine. In other words, forgery means afalse or altered document made to lookgenuine by someone with the intent todeceive. According to Black's LawDictionary, forgery denotes-The act of f raudulent ly a l ter ing,authenticating, issuing, or transferring awriting without appropriate authorization.SEE BLACK'S LAW DICTIONARY 8THEdition, 2004 @ 677."Per SAULAWA, J.C.A.(P. 26, Paras. C-E) - read in context

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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

(Delivering the Leading Judgment): The instant appeal

is fall-out of the decision of the Akwa Ibom State High

Court, holden at Uyo, delivered on April 30, 2012 in suit

No. HEK/137/2012. By the said decision, the Court below,

coram Andrew E. Okon, J; entered judgment for the

Respondent (Plaintiff) against the Appellant (Defendant).

BACKGROUND OF FACTS

The Appellant is an Unlimited Liability Company duly

registered under the relevant Laws of the Federal

Government of Nigeria. Having been so registered, it

carries on the business of oil production et al, with its head

office at Mobil House, Lekki Express Way, Victoria Island,

Lagos and branches throughout the Federation, including

Ibeno within the jurisdiction of the Court below.

Contrariwise, the Respondent, a titled Chief and native of

Eket in Akwa Ibom State, carries on business under the

name and style of Hohada Special Services at No. 1 Mkpok

Road, Eket within the jurisdiction of the Court below.

The case of the Respondent is to the effect that the

Appellant trespassed unto the Respondent's piece of land

lying and situate at Usan Uku, Mkpok, in Eket

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Local Government Area. Consequent whereupon, the

Respondent's economic trees were destroyed by the

Appellant for the purpose of the Airstrip thereof. By the

Amended Statement of Claim thereof, dated 21/03/03,

pursuant to order of Court below granted on 09/04/03, the

Respondent claimed against the Appellant the following

reliefs:

a. Perpetual injunction restraining the Defendant, Mobil

Producing Nigeria Unlimited by Herself, Directors,

Officers, Agents, Assigns or whosoever acting on her behalf

from issuing bid instruction(s) and awarding contract(s) to

members of the public, her contractors, or whosoever for

the provision of grass cutting services or any other related

service in the areas covering 1/4 perimeter fence, within

bundwall of Tanks 6202; around bundwal (internal and

external) concrete and Tank Bases of Tanks 5001, 5002,

5003 and 5004; North fence fire Training ground and fire

water line (i.e. blocks 4, 5, 11 and 12) all at Qua Iboe

Terminal, Mobil Producing Nigeria Unlimited, Qua Iboe

Terminal, Ibeno, which formed the subject matter of the

contract already awarded to the Plaintiff by the Defendant

since 1984 and which contracts was

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to enure so long as the Defendant operates in Akwa Ibom

State with periodic renewals which contracts covers an

area of 3,545,639 sq. feet.

b. An order compelling the defendant to renew the contract

as awarded to the plaintiff for grass cutting, weeding and

weeds killing as contained in the terms of contract

agreement entered into by the defendant and plaintiff.

c. Alternatively, an order compelling the defendant to pay

to the plaintiff, the sum of N350 billion (Three Hundred and

Fifty Billion Naira) as follows:

i. The sum of N171,935,905,200.00 (One hundred and

seventy-one billion, nine hundred and thirty five million,

nine hundred and five thousands, two hundred naira only)

as Special damages.

ii. The sum of N100,000,000,000.00 (One hundred billion

naira only) as Exemplary damages for the defendant's

contemptuous disregard of the plaintiff's rights to the

existing contract, and

iii. The sum of N78,064,094,800.00 (Seventy-eight billion,

sixty-four million, ninety-four thousand, eight hundred

naira only) as general damages for the breach of contract.

PARTICULARS OF SPECIAL DAMAGES

(i) Based on the approved review

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rates of N100 per square feet, the contract would have

been renewed at the monthly rate of N354,563,900.00

(Three Hundred and fifty-four million, five hundred and

sixty-three thousand and nine hundred naira only) whereof

the plaintiff would have used the sum of N141,825,560.00

to execute same and made a profit of N212,738,340.00

(Two Hundred and Twelve million, seven hundred and

thirty eight thousand, three hundred and forty naira only).

(ii) With the above, the plaintiff would have made a net

earning of N2,552,860.080 for a calendar year and the sum

of N165,935,905,200.00 as the net earnings for the period

of 65 (sixty-five) years ,the defendant will be operating in

Akwa Ibom State.

(iii) The sum of N6,000,000,000.00 being the amount the

plaintiff was entitled from June 2000 to December 2002

following the defendant's letter of 25/5/2002 approving the

sum of N100 per square feet and which was not fully

implemented. At the trial the plaintiff shall lead evidence to

prove this head.

On the hand, Amended Statement of Defence thereof, dated

24/10/03, granted on 27/11/03, the Appellant not only

denied the Respondent's claim in toto, but equally

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claimed against the Respondent by way of a set-off, viz:

AND BY WAY OF SET-OFF AND/OR COUNTER-CLAIM

24. The defendant hereby counter-claims against the

plaintiff and repeats Paragraphs 1 to 23, of the Amended

statement of Defence.

25. The defendant is an international company of known

integrity and repute whose reputation and business are

being damaged and injured by the publication of the forged

letter by the plaintiff.

26. The plaintiff sued the defendant out of malice, obtained

a Court order which it used to harass, intimidate and

sometimes delay/stop the business activities of the

defendant. The defendant/counter-claimed pleads the

notice to janitorial services contractors to go back to work

mentioned as Exhibit "B" by the defendant himself in his

affidavit in support of Form 48, filed in this Court on

5/2/2003.

27. The defendant/counter-claimant has had to employ the

services of Counsel and sponsor their travels including the

travels and other expenditure of witnesses to debunk the

plaintiffs claim and the forged letter, etc.

28. The defendant on account of the above has suffered

injury and damages and therefore

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counter-claims against the plaintiff as follows:

i) Expenditure on Counsel and/or witnesses, etc. …….

N10,000,000.00

ii) Loss of business, etc. ……. N89,000,000.00

iii) General Damages …….. N111,000,000.00

N210,000,000.00 (Two hundred and ten million

naira).

Parties filed their respective pleadings. The suit proceeded

to trial. At the conclusion of which, the Court below

delivered the vexed judgment on the said April 30, 2012, to

the conclusive effect, thus:-

On the totality of the evidence before me including

the Exhibits, the claimant has proved his case. The

defendant has not proved its counter-claim and its

ordered that it be hereby dismissed. The claimant's

claims are in the alternative. In Paragraph 19(a)

and (b) of his amended statements of claim, the

claimant made two main claims. In Paragraph 19(c)

thereof. We made an alternative claim. The claimant

is entitled to the main claims. The law is that where

the main claim is granted the alternative cannot be

granted. An alternative claim made in a case by a

claimant against a defendant, cannot be granted

along with or in

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addition to the grant of the main or principal claim

made by the same claimant against the same

defendant....

In the final result, it is ordered that judgment be and

is hereby entered in favour of the claimant as follows:

1. It is ordered that the defendant be and is hereby

compelled to renew the contract as awarded to the

claimant for grass-cutting, weeding, and weeds killing

as contained in the terms of contract agreement

entered into by the defendant and the claimant.

2. The defendant shall pay to the claimant cost of

N50,000.00. See pages 194 - 210 of the Record.

Dissatisfied with the said judgment, the Appellant filed in

the Court below, the notice of appeal thereof on 16/10/12.

The Respondent equally cross-appealed against the said

judgment. The Respondent's Amended Notice of Appeal

was deemed filed on 10/11/15. The record of appeal was

initially transmitted on 22/11/12 but deemed properly

transmitted on 08/4/13. The Appellant brief of argument

was filed on 15/04/13.

The Respondent/Cross-Appellant's brief was deemed filed

on 10/11/15. The cross-respondent's brief (to the cross-

appeal) was filed on 10/11/15. The

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Appellant's reply brief was filed 10/11/15 respectively.

On 18/02/16 when the appeal lastly came up for hearing,

the learned counsel adopted their respective briefs, thus

resulting in reserving judgment for delivery.

The Appellant's brief, filed on 15/4/13, span a total of 28

pages. At pages 6 thereof, four issues have been raised to

the following effect:

2.1 Whether the learned trial Court was right in

holding that Exhibits "E" and "G" were not forged

after finding that Exh. "D" also tendered by the

Respondent was forged.

2.2 Whether the learned trial Court was right in

holding that there is in existence a subsisting

contract between the Appellant and the Respondent.

2.3 Whether the learned trial Court was right in

holding that the Respondent had proved his case.

2.4 Whether the refusal of the learned Judge to allow

the Appellant to file pleading subsequent to Reply in

form of a Rejoinder and adduce evidence thereto had

not occasioned a miscarriage of justice.

The issue No.1 is distilled from Grounds 3 & 5 of the

Amended Notice of Appeal. It is canvassed at pages 6-10 of

the brief. In a nutshell, it's submitted,

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that the Court below did not avail itself of the provision of

Section 101 of the Evidence Act, 2011, as amended, to

make a comprehensive analysis of the signature of the

DW2. Reference was made to pages 645–675 of Volume 2 of

the Record, to the effect that the DW2 admitted (in Exhibit

AJ) signing Exhibits C, AF1 and AF2, respectively. He

however denied signing Exhibits D, E and G.

Further submitted, that the Court below should have

compared the signatures in Exhibits C, AF1 and AF2 with

Exhibits D, E and G. See ADENLE v. OLUDE (2002) 18

NWLR (Pt. 799) 413 @ 431-432 Paragraphs H - A.

It was contended that from Exhibit J, the evidence of DW2

remained unchallenged under cross-examination. Thus,

that evidence must be accepted as the correct version of

what the witness (DW2) said: See AMERICAN

CYANAMID v. VITALITY PHARM. LTD. (1991) 2

NWLR (Pt. 171) 15 @ 28 F; 30 G; 35 G; et al.

That, where there has been an assertion and denial of fact

in issue, onus rests on the party asserting. See NDOMA-

EGBA v. A.C.B. PLC (2005) 14 NWLR (Pt. 944) 79 @

102-103 D-A; ADIGHIJE v. NWAOGU (2010) 12 NWLR

(Pt. 1209) 419 @ 458-459.

The Court is

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urged to resolve issue No. 1 in favour of the Appellant.

The issues 2 and 3 are have been canvassed together at

pages 10 - 13 of the brief. They have been distilled from

Grounds 1 and 2 of the Amended Notice of Appeal,

respectively.

In the main, it is submitted, that the Court below was in

error to have based the existence and formation of a

contract between the parties on Exhibit "E". Further

submitted, that assuming Exhibits E and G were signed by

the Appellant, the said exhibits could not amount to a

contract of agreement in law, and did not raise any

contractual obligation on the Appellant.

It was contended, that Exhibits E and G could not in law

and in fact amount to a contract by virtue of Exhibits Q, R,

S1 – S7, which were the terms (of the) contracts duly

entered into by the Appellant and the Respondent.

Further contended, that by the provision of Section 128 (1)

of the Evidence Act, oral evidence is inadmissible to vary,

alter or contradict the contracts of a written contract,

except where such evidence is aimed at establishing fraud,

mistake of fact or law, or any other matter of which, if

proved, would

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necessarily impeach or impugn the validity of such

contract. See NICON v. BWER & INDUSTRY ENG. COY.

LTD (1986) 1 NWLR (Pt. 14) 1; et al.

The Court is urged upon to resolve both issue 2 and 3 in

favour of the Appellant.

The issue No. 4 is distilled from Grounds 6 and 7 of the

Notice of Appeal. Submitted in a nutshell, that Order 17

Rule 14 of the Akwa Ibom State High Court (Civil

Procedure) Rules, 2009, allows the Defendant to file a

pleading subsequent to Reply where he needs to deal with

new issues or matters raised in the plaintiffs Reply. He

must, however, seek leave of Court to do that. See

OGUNDEOYIN v. ADEYEMI (2001) 13 NWLR (Pt. 730)

403 @ 419 - 420 C - E; OGBODORO v. OMENUWOMA

(2005) 1 NWLR (Pt. 906) 1 @ 16 A-D.

Finally submitted, that failure by the Court below to allow

the Appellant to file a Reply in a form of Rejoinder and

adduce evidence in support thereof, had led to a

miscarriage of justice. See OGUNTAYO v. ADELAJA

(2009) 15 NWLR (Pt. 1163) 150 @ 186-187 C-A.

On the whole, the Court is urged to resolve the issue No. 4

in favour of the Appellant.

Conclusively, the Court is urged to uphold and

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determine the appeal in favour of the Appellant.

On the other hand, the Respondent/Cross Appellant's brief

of argument, dated 24/10/13, was deemed properly filed on

10/11/15. It spans a total of 26 pages. At page 4 thereof,

five issues have been raised for determination, viz:

1. Whether the learned trial Judge was right in

holding that there was in existence a contract

between the Applicant and the Respondent/Cross

Appellant?

2. Whether the learned trial Judge was right in

holding that Respondent/Cross-Appellant has proved

his case?

3. Whether the learned trial Judge was right when he

held that Exhibit "D" which was pleaded, tendered

and admitted without objection by the Appellant was

a forgery being proved as required by law while also

holding that Exhibits E and G were not forged?

4. Whether there was any miscarriage of Justice

occasioned by the refusal of the trial Judge to allow

the Appellant to file her pleading long after the

Respondent has closed his case since July, 2005 when

the effect was to overreach the Respondent?

5. Whether the learned trial Judge was right in

making an order compelling the Appellant to renew

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the contract awarded to the Respondent/Cross Appellant

for grass-cutting, weeding, and weeds killing without

stating the rate at which same should be renewed when

same was proved by the Respondent?

The issues 1 & 2 have been distilled from grounds 1 and 2

of the Notice of Appeal and dully canvassed at pages 4 - 8

of the brief.

Submitted in a nutshell that Exhibits D, E, F and G were

the basis for the parties' contractual relationship. The said

exhibits created a binding contract on them. The existence

of that contract is allegedly strengthened by the Appellant's

letters of 31/03/97 (Exh. K), 26/09/84 and 06/11/84 (Exh.

Z), respectively.

Further submitted, that these letters were admitted by the

Appellant in the pleading thereof. That the contract is

founded upon offer and acceptance with the required

consideration, thought need not/be sufficient. See

TSOKWA MOTORS NIG. LTD. v. U.B.N. LTD. (1996) 9

NWLR (Pt. 471) 145 H: et al.

It is contended, that there is a binding contract between

the Respondent and the Appellant based on the offer

contained in Exhibits D and E, and an acceptance contained

in Exhibit F as part of the

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compensation for the trespass committed by the Appellant

against the Respondent's land, economic trees and crops

destroyed by the Appellant. The Court is urged to so hold.

See TSOKWA MOTORS (NIG) LTD. v. U.B.N. LTD.

(supra) @ 145 H; DELTA STEEL (NIG.) LTD v. ACT

INC. (1999) 4 NWLR (Pt. 592) 53 @ 66 G - H; et al.

Conclusively submitted, that having voluntarily entered into

the contract of "grass cutting and weed killing" with the

Respondent in the stipulated terms, the Appellant cannot

validly in law derogate therefrom, except in accordance

with law. The Court is urged to resolve issues 1 and 2 in the

affirmative, and in favour of the Respondent.

The issue No. 3 is distilled from Grounds 3 and 5 of the

Notice of Appeal, and duly argued at pages 1-13 of the

brief. Submitted to the effect, that in proof of the claim

thereof the Respondent tendered a number of documents,

including but not limited to Exhibits D, E, F, G, K and Z.

That, although Exhibits K and Z were admitted upon

minimal objection, Exhibits D, E and G, were admitted by

the Court below without any objection by the Appellant.

See pages 227 - 229 of Volume 2 of the

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Records.

Thus, contended that a party who failed to object to

tendering of a document in law, cannot be heard to

complain afterwards. See VSTCO LTD. v. XTODEUS

TRADING CO. (1993) 5 NWLR (Pt. 296) 695 - 696 D –

A; et al.

Further contended, that the provision of Section 101 of the

Evidence Act, 2011, as amended, is not applicable to this

case, as the Court is not bound to comply with the said

provision where there are credible evidence to show

thtat he signature on the disputed exhibits are in fact that

of DW2. That, the Court below made references to Exhibits

E and G. Exhibit 2 were not denied by the Appellant as

hers. See ADENLE v. OLUDE (2002) 18 NWLR (Pt. 799)

413 @ 430 D - H; AMADI v. ORISAKWE (2005) 7

NWLR (Pt. 924) 385 @ 397 E-H.

On the whole, the Court is urged to discountenance with

the Appellant's submission and resolve issue No. 3 in

favour of the Respondent.

The issue No. 4 is distilled from Ground 6 of the Amended

Notice of Appeal and duly canvassed at pages 13 - 18 of the

brief.

Submitted, inter alia, on the issue that the main reason

adduced by the Appellant was error and/or mistake of

counsel. That

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since the Appellant's Senior Counsel, Mrs. M. A. Essien,

SAN, came into the case, the Court below did not put an

end to further participation by the Law Firm of Orok

Ironbar & Associates. Thus, contended that unless Chief

Orok Ironbar filed an affidavit alleging the fact of

blundering in the matter, the Senior Counsel cannot call in

support the fact of the mistake of counsel as a reason for

bringing the motion to further amend the Appellant's

statement of defence. See ONYEKE v. HARRICLEM

(NIG) LTD. (1998) 7 NWLR (Pt. 556) 64 @ 71 D - E.

It is contended, that its only when the mistake of counsel

involves procedural matters that the Court can allow

necessary amendment, but where it is a self created

mistake, the Appellant cannot be heard to complain. See

AKANBI v. ALAO (1989) 3 NWLR (Pt. 108) 118 @ 140

A; 154 C-D; C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt.

1279) 493 @ 571 C-D; IROEGBU v. OKWORDU (1990)

6 NWLR (Pt. 159) 643 @ 669 B - C; et al.

Further contended, that the reasons for the application in

question not having been good and substantial, the

Appellant was not entitled to be granted the indulgence by

the Court below, when same was aimed

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at over reaching the Respondent and cause further delay in

the trial of the case. See BAMISHEBI v. OJE (1995) 8

NWLR (Pt. 411) 1; AWACHIE v. CHIME (1990) 5 (Pt.

150) 302. The Court is urged to resolve issue 4 in the

negative.

The issue No. 5 is distilled from Ground 2 of the Notice of

Appeal, and duly canvassed at pages 18-20 of the brief. It is

submitted in the main, that the Court below having found

as proved, that the Respondent was awarded contract for

grass-cutting, weeding and weeds killing at the rate of

N100 per square feet by the Appellant, ought to have given

judgment. Having failed to do so, the vexed judgment

cannot be said to be complete as it does not reflect the

Respondent's claim as found, and proved before it. See

Section 50 (1) & (2) of the Evidence Act CAP 112 Laws of

the Federation of Nigeria 1990; OGBORU v. IBORI

(2005) 13 NWLR (Pt. 942) 319 @ 394-395 F-B; DIKE

v. NUKE II (1986) 4 NWLR (Pt. 34) 14, et al.

Further submitted, that this Court has powers to make any

order necessary to effect any amendment on any error or

defect committed by the Court below in the vexed

judgment. See Section 15, Court of Appeal Act 2004;

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Order 19 Rule 11 (1) & (2) of the Court of Appeal Rules,

2011; ATOCHUKWU v. ADINDU (2012) 6 NWLR (Pt.

1297) 534 @ 562 F-A; ATOLAGBE v. SHORUN (1985)

1 NWLR (Pt. 2) 300 @ 364 G - H; USUNG v. NYONG

(2010) 2 NWLR (Pt. 1177) 83 @ 115 A; et al.

The Court is urged to equally resolve issue 5 in favour of

the Respondent.

Conclusively, the Court is urged upon to dismiss the main

appeal, and accordingly allow the cross-appeal.

The Appellant's Reply brief filed on 10/11/15 spans a total

of 11 pages. Pages 1-4 relate to Respondent's issues 1 and

2. Pages 4-7 relates to Respondent's issue 3. While pages 7

- 8 relate to issue 4 of the Respondent, respectively.

Conclusively, the Appellant urged upon the Court to reject

the arguments of the Respondent/Cross-Appellant, and

accordingly allow the appeal.

I have accorded an ample regard upon the nature and

circumstances surrounding the appeal, the extensive

submissions contained in the respective briefs of argument

vis-à-vis the records of appeal, as a whole. It is a common

knowledge, as depicted by the Records, that the Court is

faced with two distinct appeals, processes - (i) the main

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appeal itself; and (ii) the cross-appeal. I have deemed it

expedient to determine both the main appeal and the cross-

appeal separately.

1. THE MAIN APPEAL

I have opted to adopt the five issues raised and argued by

the Appellant in the brief thereof for the ultimate

determination of the appeal, anon.

ISSUE NO. 1

The first issue, distilled from grounds 3 & 5 of the Amended

Notice of Appeal, raises the vexed question of whether or

not the Court below was right in holding that Exhibits E

and G were not forged after finding that Exhibit D (also

tendered by the Respondent) was forged. The issue is

distilled from grounds 3 & 5 of the Amended Notice of

Appeal.

The vexed judgment is contained at pages 194-210 of the

Court below. Most specifically, the issues relates to the

finding of the Court at pages 205-206 of Volume 1 of the

record to wit:

DW2 denied signing Exhibits D, E and G. He admitted

signing Exhibits C, AF1 and AF2. In his evidence in

Exhibit AJ, he took time to explain from page 13 – 16

thereof why he could not have singed Exhibit D dated

September 26, 1984. His reasons were that there are

errors in

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English, punctuation and grammar in the letter and

misspelling of his name, all of which I have personally

seen in the letter. My view is that Exhibit D must have

been forged. Those errors and defects are not

apparent in Exhibits E and G. The defendant case is

that the two Exhibits are forged and that DW2 did not

make them. Where a party denies making a document

which he alleged to have signed, such denial is

tantamount to saying that the document is a forgery

or a fake. In such a case, the burden of proof of the

forgery rests on the party who alleges. Since forgery

is a crime, the onus of proof on him who alleges is

proof beyond reasonable doubt. See the case of

Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) page

25 held 11.

In this case, the defendant denied that Exhibit E

dated 26th September, 1984 and Exhibit G dated 6th

November, 1984 are its documents. DW2 in his

evidence denied them. He said he did not sign them.

He had the opportunity of testifying in the case. He

did not seek the leave of the Court to write or made

his correct signature before the Court. He lost that

opportunity but the defendant must prove the forgery

beyond reasonable

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doubt.

It is evident from the records, that consequent upon the

application of the Appellant's counsel, the Court below

moved on 19/11/2009 ordered that the Court would move to

and sit at Maine, Portland, USA, to take the evidence of the

DW2 (E.R. Sawtelle) who could not come to Nigeria to

testify. As testified by the records at page 196:

On 20th January, 2010 a commission examined the

defendant's witness, Mr. E. R. Sawtelle at the Law

Offices of pierce Atwood, Monument Square,

Portland, Maine, USA, in my presence, the parties and

their counsel and with full participation. When the

Court sat again in Uyo on 4th March, 2010, the

defendant's counsel, Albert Ben Esq., applied that the

evidence of the said E. R. Sawtelle be admitted as part

of the records as the evidence of DW2, and since the

claimant's counsel, Idongesit Uwah (Miss) did not

oppose the application, the Court made the order as

follows:

It is ordered that the evidence of E. R. Sawtelle taken

on commission in Portland, Maine; USA on 20th

January 2010 and sent here from the office of

Nigerian Consulate-General New York, USA, be and is

hereby accepted as part of the records of

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this Court in this suit and in particular to be

identified and referred to as Exhibit "AJ" for all

purposes in this suit.

Parties are ad idem, as aptly found by the Court below at

page 202, lines 23-25 of the record, to the effect that:

The most contentious of the Exhibits are Exhibits D, E

and G, said by the defendant to have been forged by

the claimant for the purposes of this case.

Instructively, the issues have been joined by the parties

both in the pleadings and evidence adduced at the trial of

the suit. In Paragraph 8 of the Amended Statement of claim

thereof, the Respondent pleaded thus:

8. Although the plaintiff did accept the offer made by

the defendant following the meeting above referred,

the plaintiff later wrote by his letter of 30/10/84 for

upward review of the contract rate to assist the

plaintiff carry out the job effectively considering the

anticipated cost of the contract whereof the

defendant by her letter of 6/11/84 promised upward

review of the rate annually. These letters are hereby

pleaded.

See page 94 of Volume (1) of the record.

In response thereto, the Appellant pleaded in Paragraph 6of the

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Amended Statement of Defence thereof thus:

a. Paragraph 8 is denied and in further answer thereto the

Defendant states thus:

i) The letters dated 26/9/84 and 6/11/84 are provided

by the plaintiff and are queried. However, even if

true, they were subject to and were superseded by

written contracts signed by the parties. The "Term

Contracts" are hereby pleaded. The plaintiff is given

notice to produce his copies at the trial hereof.

ii) Only one letter dated 26/9/84, was earlier provide

by plaintiff to the defendant. The said letter while

investigated the one dated September 26, 1984, was

sprung on the defendant and tendered in Court.

These letters, particularly the one dated September

26, 1984, are not from the defendant.

iii) As plaintiff accepted payment of compensation for

his part of the airstrip land in money, he acted in bad

faith in retaining suit numbers HEK/8/83 and if it

exists, HEK/12/84, in Court. This conducts also

estopps the plaintiff from insisting on continuing with

the contract.

What's more, in Paragraph 22 of the said Amended

Statement of Defence thereof, the Appellant vehemently

pleaded to the following

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effect:

22. The defendant refers to Paragraph 6 of this

Amended Statement of Defence and again states

clearly that the letter dated September 26th 1984, is

unknown to it, did not emanate from it and it is a

forgery.

PARTICULARS OF FRAUD

i) The letter of September 26th 1984 was deliberately

so dated to confuse it with the one dated 26/9/1984,

pleaded in Paragraph 7 of the Amended Statement of

Claim.

ii) The letter and the signature thereof are forged.

iii) The letter from the defendant himself of 30th

October, 1984 mentioned and referred clearly to the

letter dated 26th September, 1984. No mention of the

other letter of September 26, 1984 because it never

existed. The plaintiff is hereby given notice to

produce his copy of this letter at the trial thereof.

iv) The above misled the Court into admitting the

letter of 26/9/84, as Exhibit 'D'.

v) Tendering the said letter with the clear intent of

influencing wrongly the decision of this Court.

vi) The format of the letter, value of the naira against

the dollar in 1984, the language and other defects

show that the letter is not from the defendant.

See page 30,

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lines 22 - 40 of the record.

Now, against the backdrop of the foregoing pleadings,

especially Paragraphs 6 and 22 of the Amended Statement

of Defence thereof, would it correct for the Appellant as it

has done in the brief thereof that:-

3.1.16. The Appellant had not made the allegation

that it was the Respondent who forged the signature

of the DW2 on Exhibits "D", "E" and "G". What the

Appellant, through DW2 said that he did not sign the

signature ascribed to him in Exhibits "D, E and G".

Most undoubtedly, the answer to the answer to the above

question is in the negative. And I so hold.

At page 205, lines 25-32 of the Record, the Court below

stated thus:

The defendant case is that the two Exhibits are forged

and that DW2 did not make them. In such a case, the

burden of proof of the forgery rests on the party who

alleges. Since forgery is a crime, the onus of proof on

him who alleges is proof beyond reasonable doubt.

See the case of Edohoeket v. Inyang (2010) 7 NWLR

(Pt. 1192) page 25 Held II.

In this case, the defendant denied that Exhibit E

dated 26th September, 1984 and Exhibit G dated 6th

November, 1984 are its documents. DW2 in his

evidence denied them. He said he did not sign them.

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He had the opportunity of testifying in the case. He

did not seek the leave or the Court to write or made

his correct signature before the Court. He lost that

opportunity but the defendant must prove the forgery

beyond reasonable doubt.

I think I cannot agree more with the above cogent finding,

which is obviously supported by the evidence on the record

and trite fundamental principles of law.

The term forgery denotes the act of fraudulently making a

false document or altering a real one to be used as if

genuine. In other words, forgery means a false or altered

document made to look genuine by someone with the intent

to deceive. According to Black's Law Dictionary, forgery

denotes-

The act of fraudulently altering, authenticating,

issuing, or transferring a writing without appropriate

authorization.

SEE BLACK'S LAW DICTIONARY 8TH Edition, 2004 @

677.

It is trite, that while it is true that there is a distinction

between fraud and forgery, and forgery contains elements

that are not included in fraud, forgeries are a species of

fraud. In essence, the crime of forgery involves the making,

altering, or completing of an instrument by

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someone other than the ostensible maker or drawer or an

agent of the ostensible maker or drawer. See Black's Law

Dictionary (supra) @ 677.

Indeed, it's a trite and fundamental principle, that

allegation of forgery tantamount to an imputation of crime.

Thus, where a party denies making a document thereby

alleging that it is forged, the burden of proving the alleged

forgery rests upon him. And that since forgery is for all

intent and purposes a crime, the onus of proof upon the

party alleging same is proof beyond reasonable doubt. See

Section 138(1) of the Evidence Act; EDOHOEKET v.

INYANG (2010) 7 NWLR (Pt. 1192) 25 @ 57

Paragraph BD; ESEWO v. UKPONG (1999) 6 NWLR

(Pt. 608) 611; IKOLI v. OLI (1962) 1 SCNLR 307;

AMAD v. ORISAKWE (2005) 7 NWLR (Pt. 924) 385.

In the instant case, the Appellant denied most vehemently

that Exhibits E and G, dated 26th September, 1984 and 6th

November, 1984 were its documents. The Appellant's star

witness in that regard, DW2, in his evidence, denied both

Exhibits E and G in question. As aptly found by the Court

below, DW2 -

had the opportunity of testifying in the case. He did

not seek the leave of the Court

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to write or made (sis) his signature before the Court.

He lost that opportunity but the defendant must

prove the forgery beyond reasonable doubt.

See page 205-200 of Volume 1 of the Record.

With a possible defence, I do not think the above finding of

the Court below is correct. My reason for so holding is not

far- fetched. In the case of ADENLE v. OLUDE (2002) 18

NWLR (Pt. 799) 413, the Appellant argued that it was for

the plaintiff who had the duty to prove due execution of

Exhibition C by DW1 to either call a handwriting expert to

carry out investigation or invite the trial Court to compare

the disputed signature in Exhibit C with any other

signature before the Court which was proved or admitted

to be that of DW1. Thus, the Appellant submitted that the

Court of Appeal was in error to have expected the trial

Court who is an umpire to take the initiative of making the

necessary comparison. Whereupon it was held by Apex

Court thus:

With due respect to the learned counsel, I find no

merit in this submission. Exhibit D containing the

admitted signature of DW1 was produced by the

plaintiff/respondent. Exhibit F which also contains the

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admitted signature of DW1 was produced by the

defendant/appellant. These two exhibits formed part

of the evidence before the learned trial Judge. All the

necessary evidence upon which the learned Judge

would have had to act pursuant to Section 108 of the

Evidence Act in order to determine the credibility of

DW1 on the denial of his signature in Exhibit C, was

before the Court.

Per Uwaifo, JSC @ 431 Paragraphs F - H.

The Apex Court held further on the point that the Court of

Appeal was correct in pointing out what the trial Court

obviously failed to do to compare the admitted signature

with the disputed signature of DW1. According to the Apex

Court:-

In my opinion, the Court below was right in doing the

necessary comparison. I have also compared the

disputed signature in Exhibit C with that of DW1 in

Exhibits D and F, and I am satisfied that the one in

Exhibit C is so unarguably indistinguishable from that

in Exhibit D as well as Exhibit F that the only

reasonable conclusion is that it was also signed by

DW1.

Per Uwaifo, JSC @ 492 paragraphs A - E.

By the authoritative decision of the Apex Court in ADENLE

v. OLUDE (supra)

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vis-à-vis the provisions of Section 101 of the Evidence Act

(supra), the Court below and indeed any trial Court for that

matter, has a duty to take the initiative of making the

necessary comparison of signatures in documentary

exhibits before it before coming to a reasonable conclusion

in the matter. See ADENLE v. OLUDE (supra) @ 432

Paragraphs A-E; TEICH v. NORTHERN INT-MARKET

CO. LTD. (1987) 4 NWLR (Pt. 65) 441; R v. SMITH 3

C.A.R. 87; R. v RICKARD 13 C.A.R. 140; R. v APPEA

(1951) 13 WACA 143; WILCOX v. THE QUEEN (1961)

2 SCNLR 296.

In the instant case, notwithstanding the above erroneous

finding thereof regarding the DW2's alleged failure to seek

leave at the time of giving evidence the Court did actually

compare the controversial Exhibits E and G with other

exhibits bearing the undisputed signatures of the DW2,

Exhibit F, dated 30th October, 1984, the Respondent the

General Manager of the Appellant for the contract and

asked for consideration of the rates of services. In Exhibit

F, a reference was made to the Exhibit E, dated 26th

September 1984. In Exhibit G, a reference was made to

Exhibit F, to the effect that the increment for the jobs

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would be made yearly.

One of the letters not denied by the Appellant is Exhibit Z,

dated March 31, 1997 and addressed to the Respondent to

the effect thus:

… You are advised to continue with the contract on

monthly basis until a new contract is formalized. This

is based on our exceptions letters dated 26th

September, 1984 and 6th November, 1984.

Interestingly, the letters dated 26th September 1984 and

6th November, 1984 are Exhibits E and G, denied by the

Appellant. The finding of the Court below at page 207 lines

14 of the Record, is to effect that –

Exhibits made in 1984 remained as reference points

in Exhibit K made in 1997 and in Exhibit Z made in

2000 by the defendant is a strong conclusion that

they were and have continued to be dependable

documents of the defendant. It is therefore my view

that Exhibits E and G are not forged. They are

defendant's documents.

In my considered opinion, the Court below was right in

doing the necessary comparison of the exhibits in question

within the contemplation of Section 101 of the Evidence Act

2011 (Section 108 of the Evidence Act, 1990). I have

equally compared the

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disputed signatures of DW2 in Exhibits E and G vis-à-vis

Exhibits K and Z made in 1997 and 2000, respectively and I

am of the considered opinion that Exhibits E and G were

not forged. And I so hold.

In the circumstances the issue No. 1 ought to be and its

hereby resolved against the Appellant.

ISSUES 2 & 3

The second issue raises the question of whether the Court

below was right in holding that there is an existence or

(subsisting) contract between the Appellant and the

Respondent. The third issue on the other hand, raises the

question of whether the Court below was right in holding

that the Respondent had proved his case. Both issues have

been distilled from grounds 1 and 2 of the Notice of Appeal

respectively.

Copiously alluding to pages 208-209 of Volume 1 of the

Records, the Appellant submitted that the Court below was

in error to have based the existence of Exhibit E and

formation of a contract between the parties.

Further submitted, that exhibit neither amounted to a

contract or agreement in law nor raised any contractual

obligation on the Appellant.

For ease of reference, the said Exhibit E is

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hereby reproduced:

Mobil Producing Nigeria

Bookshop House

50 BROAD STREET

PRIVATE MAIL BAG

12054

LAGOS NIGERIA

TEL. 600560, 600561

CABLE MOBIL OIL

26th September, 1984

Mr. Lawrence Dickson Hope

No.1 Road 1

Federal Housing Estate

MKPOK

Cross River State.

Dear Sir,

RE-HEK/8/83

LAWRENCE DICKSON HOPE v. MR. MICHAEL

JERRETTE

GORDON, MOBIL PRODUCING NIGERIA

Following the last meeting with your goodself and our

Executive Director, Chief Bade Ojoro at Mobil

Airstrip, Eket on 20th August, 1984 on the above

subject matter. We have agreed and have prepared

packages of grass cutting, weeding and grass killing

contracts for you, subject to renewal as long as Mobil

Operates in Eket

We trust that you will agree with the above

arrangement.

Very truly yours,

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E. R. Sawtelle

E. R. Sawtelle

(General Manager)

Chairman & Managing Director: CARL J. BURNETT

(JR). (USA) DIRECTORS: ROBERT H. ASHER (USA),

HENRY K. HOLLAND, (JR. (USA), JOHN P. KEEHAN

(USA), ALPHONSUS A. OLUKOYA, CHIEF AJIBADE

OJORA, EDMUND R. SAWTELLE (USA)

Consequent upon

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Exhibit E, the Respondent wrote Exhibit F, dated 30/10/84,to the following effect:No 1, Road 1,Federal HousingEstate,Mkpok, Cross River State.30h October, 1984.The General Manager,Bookshop House,50/52 Broad Street,Private Mail Bag 12054,Lagos.Sir,RE: PACKAGES OF GRASS CUTTING, GRASSWEEDING AND WEED KILLING SERVICESCONTRACTS – POOR RATES AT Q.I.T.Thank you for your letter dated 26th September,1984, which Mobil Enshrined Packages of GrassControl Services for me at Q.I.T. Under HOHADASPECIAL SERVICES OF NIGERIA.But I wish to inform you that the rates of theseservices need much consideration, to enable me meetthe standard and settle with my workers when fur.Thank Sir,Lawrence D. Hope(LANDLORD).

Whereupon, with particular reference to Exhibit F, theAppellant replied (vide Exhibit G), thus:… … …6th November, 1984.Mr. Lawrence D. Hope… … …Dear Sir,RE-PACKAGES OF GRASS CUTTING, GRASSWEEDING AND WEED KILLING SERVICESCONTRACTS-POOR RATES AT Q.I.T.

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Reference your letter dated 30th October 1984 on the

above subject.

You are better advised to accept the packages. The

increment for the jobs will be made yearly, and

whenever Federal or State Government increases

salaries or wages of its workers.

You should note that the packages will last as long as

Mobil operates in your State.

Very truly yours,

E. R. Sawtelle

E. R. Sawtelle

(General Manager)

The above documents (Exhibits E, F and G) were pleaded

along with Exhibits D, K and Z by the Respondent to be the

very basis of the contract between the respective parties.

These Exhibits were admitted in evidence by the Court

below at the hearing of the suit without any objection by

the Appellant.

However, in the Amended statement of Defence thereof,

the Appellant pleaded that Exhibits D, E and G were forged.

At page 10 Paragraph 3.1.16 of the brief. Thereof, the

Appellant submitted thus:

3.1.16. The Appellant had not made the allegation

that it was the Respondent who forged the signature

of the DW2 on Exhibits "D", "E" and "G". What the

Appellant through DW2 said was that he did not sign

the signatures ascribed

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to him in Exhibits "D", "E" and "G".

As alluded under issue No. 1, having so alleged in the

Amended Statement of Defence thereof, that Exhibits D, E,

F and G were forged, the Appellant was duty bound to

prove that allegation beyond reasonable doubt. See Section

138(1) of the Evidence Act (supra). Yet the Court below

held that Exhibit D was forged:

My view is that Exhibit D Must have been forged.

Those errors and defects are not apparent in Exhibits

E and G.

I think, with possible deference, that conclusion is

erroneous. The allegation of forgery not having been

proved by the Appellant as duly required by law, it was

erroneous for the Court below to hold as it did, that Exhibit

D was forged. It is on record, that the PW2 testified under

subpoena that after conducting a forensic analysis of

Exhibits B, C, D, E, AF – AF2, came to the conclusion that

all of them delivered to him for analysis, were signed by

one and the same person (DW2). The PW2 equally tendered

the signature comparison charts, Exhibits AD and AE.

I have no hesitation whatsoever, in holding that the

evidence of PW2 is most credible, thus ought to have been

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accepted by the Court below without any reservation.

Having critically, albeit dispassionately, scrutinized

Exhibits C, E, G, K, Z, et al, I have no doubt in mind, that

Exhibit D was signed by one person, i.e. DW2. If he was not

the one who signed Exhibit D, one wonders who then could

have signed it. This pertinent question had not been

answered throughout the trial of the suit. The mandatory

requirement of the law of evidence is that, he who asserts

must prove. In my considered view, the Appellant's failure

to discharge the fundamental onus of proving the said

Exhibits, especially Exhibit D, were forged as required by

law, tantamount to resolving the doubt so created thereby

in favour of the Respondent. And I so hold.

In the circumstance, there is every cogent reason for me to

hold, that there is a binding contract between the

Respondent and the Appellant based on the offer contained

in Exhibits D and E, and the acceptance as contained in

Exhibit F, respectively. See DELTA & STEEL (NIG.) LTD.

v. ACT INC. (1999) 4 NWLR (Pt. 597) 53 @ 66 Para. G-

H; TSOKWA MOTORS (NIG) LTD. v. UBN LTD. (supra)

@ 145 Paragraph H, et al.

In the circumstance,

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both issues 2 & 3 ought to be and are hereby resolved

against the Appellant.

ISSUE NO. 4

The fourth issue raises the question of whether or not the

refusal of the Court below to allow the Appellant file

pleading subsequent to Reply in form of a Rejoinder and

adduce evidence thereto, has not occasioned a miscarriage

of justice. The issue is distilled from Grounds 6 and 7 of the

Notice of Appeal.

On June 21, 2010, the Appellant filed a motion on Notice in

the Court below seeking the following reliefs:

1. An order of the Honourable Court granting leave to

the Defendant to amen its Further Amended

Statement of Defence in terms of the Schedule of

Amendment attached hereto and marked Exhibit 'A'

and as shown in bold in the 2nd Further Amended

Statement of Defence Exhibit 'B' hereof.

2. An order of Court deeming the Defendant's 2nd

Further Amended Statement of Defence exhibited

hereto as Exhibit 'B' as properly filed and served.

The second motion equally filed by the Appellant on said

June 21, 2010 in the Court below sought the following

reliefs:

1. An order granting the Defendant extension of time

to file a pleading

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subsequent to Reply in the form of a Rejoinder.

2. An order of the Honourable (sic) granting leave to

the Defendant to file a Rejoinder to the claimants

reply.

3. An order of Court deeming the Rejoinder already

filed and served as properly filed and served all

necessary filing fees having been paid. See pages 41 -

52 of Volume 1 of the Record.

Both motions were heard on July 20, 2010 and adjourned to

October 20, 2010 for separate rulings there on. On that

date, rulings were indeed delivered. The first motion

seeking amendment of statement of defence was duly

granted.

However, regarding the second motion, seeking extension

of time to file pleading subsequent to reply in the form of a

rejoinder, was refused and accordingly dismissed to the

following conclusive effect:

Having regard to all the circumstances of this case, I

am of the view that the effect of the application is to

overreach the claimant who closed his case more than

six years ago. This case is already eight years on the

case list and any attempt to get the claimant to

reopen his case for no good reason will turn out to be

a continued dog in the wheel of timeous

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litigation.

In the final result, I hold that there is no merit in the

application. It is ordered that it be and is hereby

dismissed. The defendant shall pay costs of N7,000.00

the claimant.

The case is adjourned to 1st December, 2010 for

mention.

HON. JUSTICE ANDREW E. OKON

(Judge)

20/10/2010

The Appellant's failure to file the processes in question in

good time was attributed, as it were, to the mistake of the

counsel thereof. It was submitted by the Applicant, that the

Court below was wrong in holding that the failure to file a

rejoinder was a conscious and deliberate course of action

and could not be attributed to the mistake or fault of

counsel.

Indeed it's a trite fundamental principle that the Court does

not normally punish a litigant for the sin (mistake) of the

counsel thereof. See AHMADU v. SALAWA (1974) 1

ANLR (Pt. 2) 318, SC 43; AKINYEDE v. THE

APPRAISER (1971) 1 ANLR 162; BAWAJE v.

ADEDIWURA (1976) 6 SC 147; OGUNDOYIN v.

ADEYEMI (2001) 13 NWLR (Pt. 730) 403 @ 419-420

Paragraphs G-E; AKANBI v. ALAO (1989) 3 NWLR (Pt.

3) NWLR 118 @ 154 Paragraphs F-G; OGBOGORO v.

OMENUWOMA (2005) 1 NWLR (Pt. 906) 1 @ 16

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Paragraphs A-D.

In the instant case, it's obvious from the records that

contrary to the Appellant's submission the firm of Orok

Ironbar & Associates who's been defending the Appellant

from inception of the case were still very much in the

matter albeit now being led by the senior counsel M. A.

Essien, SAN. Thus, the coming in to the case of the learned

senior counsel has not in any way brought to an end the

participation of Orok Ironbar & Associates in the matter.

See ONYEKE v. HARRICLEM (NIG.) LTD (1998) 7

NWLR (Pt. 556) 64 @ 71 Paragraphs D-E.

It is a well settled doctrine that the sin of counsel should

not visited upon the client thereof does not amount to

giving a blank cheque to parties. The application of that

rule is not merely as a matter of course. Thus, it applies

only where the mistake of counsel involves procedural

matters that the Court can allow necessary amendment.

However, where it is so obvious, as in the instant case, that

the mistake of counsel is self created, the Appellant cannot

be heard to complain. See AKANBI v. ALAO (1989) 3

NWLR (Pt. 108) 118 @ 140 Paragraph A; 154 @

Paragraphs C-D; C.P.C. v. INEC (2011) 18

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NWLR (Pt. 279) 493 @ 571 Paragraphs C-D; ROEGBU

v. OKWORDU (1990) 6 NWLR (Pt. 159) 643 @

Paragraphs B-C, et al.

Hence, the reasons for the application lot being good and

substantial, the Appellant was not entitled to be accorded

the indulgence by the Court below. Moreso, when the

application was apparently aimed at overreaching the

Respondent as rightly held by the Court below, thereby

stultifying the trial of the case. See BAMISHEBI v. OTO

(1995) 8 NWLR (Pt. 411) 1; OBINYIRIUK v. ALICHE

(1991) 4 NWLR (Pt. 183) 87; AWACHIE v. CHIME

(1990) 5 NWLR (Pt. 150) 302.

Invariably, the term over reach denotes to circumvent,

outwit or get the better of something by cunning or artifice:

It also means to defeat one's object by going too far.

It connotes smartness on the part of a party in the

litigation to defeat his opponent by a thoroughly

organized plan to frustrate the intention and

intendment of the adverse party. An overreaching

conduct is not fair or just.

See NIWA v. S.P.D.C. NIG. LTD (2008) 13 NWLR (Pt.

1103) 48 per Niki Tobi, JSC @ 67-68 Paragraphs H-A.

In the circumstance, the issue No. 4 is hereby equally

resolved

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against the Appellant.

Hence, having resolved all the four issues against the

Appellant, I am of the firmly considered view that the

instant main appeal is grossly devoid of merits.

Consequently, the appeal is hereby dismissed by me.

PAUL OBI ELECHI, J.C.A.: I have read in draft the lead

judgment just delivered by my learned brother Ibrahim

Mohammed Musa Saulawa, JCA.

I agree with the reasoning and conclusion reached therein.

Accordingly, I too, hold that this appeal lacks merit and it is

hereby dismissed.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have

had the privilege of reading the draft of the lead judgment

just delivered by my learned brother I. M. M. SAULAWA,

J.C.A. and I totally agree with his lordship's reasoning and

conclusions therein.

Allegations of crime in civil transactions must be proved

beyond reasonable doubt failing which they would be

appropriately discountenanced. See Section 135(1)

Evidence Act, 2011 (138 (1) Evidence Act, (1990) and

UKEJE v. UKEJE (2014) 58 NSCQR 487.

The forgery alleged herein by the appellant formed the

fulcrum of its entire case but was not established

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as required by law as a comparison of the signatures in

contention revealed.

For the more detailed consideration in the lead judgment, I

equally find no merit in this appeal and I accordingly

dismiss it.

I adopt the consequential orders in the lead judgment.

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