(2016) LPELR-40369(CA)

Transcription

1 ENWEREM v. ABUBAKAR & ANOR CITATION: MOORE ASEIMO A. ADUMEIN TANI YUSUF HASSAN MOHAMMED MUSTAPHA In the Court of Appeal In the Abuja Judicial Division Holden at Abuja BERNADINE OCHIASUTO ENWEREM ON TUESDAY, 19TH APRIL, 2016 Suit No: CA/A/351/2013 Before Their Lordships: Between And 1. ALHAJI ABUBAKAR 2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) - Respondent(s)

2 1 INTERPRETATION OF STATUTE - SECTION 83 (1)(B) (2)(A) AND (5) OF EVIDENCE ACT: Interpretation of Section 83 (1)(b) (2)(a) and (5) of Evidence Act as regards duty of Court to expunge wrongfully admitted evidence "For the avoidance of doubt Section 83(1) (b), (2) (a) and (5) of the Evidence Act read as follows: 83(1) "in any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact, if the following conditions are satisfied: (b) if the maker of the statement is called as witness in the proceedings, provided that the condition that the maker of the statement shall be need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. (2) in any proceedings, the Court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in Subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence notwithstanding that: (a) The maker of the statement available but is not called as a witness. (5) for the purpose of deciding whether or not a statement is admissible as evidence by virtue of this Section, the Court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be certificate of registered medical practitioner." Now in view of the foregoing it therefore follows that a wrongfully admitted piece of evidence is not sacrosanct; it is still subject to scrutiny by an appellate Court. The appellate Court is clearly under a duty to scrutinize, and if need be expunge any evidence that is wrongfully admitted, see OKONJI V. NJOKANMA (1999) LPELR-2477-SC. Inadmissible evidence ought not be admitted even by mistake, where It is admitted, as in this case and the trial Court failed to expunge the said exhibit, this Court ought to expunge same, or better still consider the case on the basis of legally admissible evidence only, see ABUBAKAR V. CHUKS (2007) VOL. MJSC 190 at 217, where the Supreme Court held: "Where evidence is admitted in error then it is the duty of the trial Court to expunge it in giving its judgment. If it fails to do so, the appellate Court will reject such evidence and consider the case in the light of the legally admitted evidence. See also, OWONIYI V. OMOTOSHO (1961) ALL NLR 304; ALASE V. ILU (1964) 1 ALL NLR 39."Per MUSTAPHA, J.C.A. (Pp , Paras. A-C) - read in context

3 2 EVIDENCE - WRONGFUL ADMISSION OF EVIDENCE: Whether the Court can expunge documents earlier admitted without objection by counsel "... It is trite law that the admissibility of documents without objection does not foreclose the power of the Court to expunge them from its record as exhibits, or discountenance same in its judgment; See the case of OKAFOR v. OKPALA (1995) 1 NWLR (Pt. 374) 749 at 758, where this Court held: "It is a matter of common sense and good practice, for a trial judge who had wrongly admitted certain evidence and on further consideration of the controversial evidence to expunge it in line from the record where he is properly addressed on the issue, if he is satisfied that such evidence was erroneously admitted. The clear provision of the law in this case is that a Court of law can only determine an issue on legally admissible evidence, not on evidence made inadmissible by provisions of the Evidence Act. It is for this reason that the Supreme Court held in I.B.W.A. vs. IMANO LTD. (2001) 3 SCNJ 160 at 177 that: "It cannot be over-emphasized that a Court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too if a document is unlawfully received in evidence in the trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence."per MUSTAPHA, J.C.A. (Pp , Paras. C-E) - read in context 3 EVIDENCE - DOCUMENTARY EVIDENCE: Whether the terms of a document can be varied by an extrinsic evidence "The general rule of the law is that where parties have embodied the terms of their agreement or contract in a written document, no extrinsic evidence can be added to alter, subtract from, vary or contradict the express terms, freely agreed to by the parties. The rights and obligations of such parties under the said contract would be determined by the terms specifically set out in the agreement itself and nothing outside it. See UBN v. OZIGI (1994) 3 NWLR (333) 385; KOIKI V. MAGNUSSON (1999) 8 NWLR (615) 492; OJOH V. KAMALU (2006) ALL FWLR (297) 988; BINGE V. GOVT OF RIVERS STATE (2006) ALL FWLR (325) 1 and OLUBODUN v. LAWAL (2008) 9 MJSC 1."Per MUSTAPHA, J.C.A. (P. 14, Paras. B-E) - read in context

4 4 EVIDENCE - HANDWRITING EVIDENCE: Condition precedent to comparison of signature, writing or finger impression "While indeed Section 101(1) of the Evidence Act allows for comparison of signatures, writings or finger impressions with others, for the purpose of drawing inferences; the plaintiff has to first adduce evidence linking the maker of Exhibit D4 to P2 before the trial Court can even draw such inferences under Section 101 (1) of the Evidence Act, a requirement which the plaintiff/appellant failed. That much is self-evident in the provisions of Section 101(1) of the Evidence Act which provides as follows: "in order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose."per MUSTAPHA, J.C.A. (Pp , Paras. F-D) - read in context 5 CONTRACT - CONTRACTUAL AGREEMENT/DOCUMENT: When will time be of essence in a contract "In this particular contractual agreement time is of essence, see clause 6 of Exhibit P2; and time is said to be of the essence of the contract, where as held in N.B.C.I V. INTERTRAGED GAS NIG. LTD (2005) 4 NWLR part 916 at 649: "...the parties have expressly stipulated in their contract that the time fixed for performance must be exactly complied with, see BRICKLES v. SMALL (1916) AC 599 (2); Where the circumstances of the contract or the nature of the subjectmatter indicate that the fixed date must be exactly complied with e.g. the purchase of a leasehold house required for immediate occupation."per MUSTAPHA, J.C.A. (Pp , Paras. E-B) - read in context 6 APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE : Attitude of appellate Court to evaluation of evidence by trial Court; When will it interfere "It is very important from the onset to appreciate the trite and tested position of the law that the evaluation of evidence as essentially a function of the trial Judge who does not share this jurisdiction with the appellate Court, See ONUOHA v. THE STATE (1998) 5 NWLR (Pt.548) 118; where the trial Judge has unquestionably evaluated the evidence before him, and ascribed to them probative value by his own assessment, it is not the business of the appellate Court to disturb such findings of facts; the appellate Court rarely substitutes such findings with its own, it only does so where such findings are found to be perverse. See WOLUCHEM v. GUDI (1981) 5 SC 291."Per MUSTAPHA, J.C.A. (P. 18, Paras. B-E) - read in context

5 7 PRACTICE AND PROCEDURE - WAIVER: Meaning of waiver "In ODU A INVESTMENT CO. LTD. V. TALABI (1997) 10 NWLR (pt.523) 1 waiver was defined in the following terms: "By way of a general definition, waiver - the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon." Per Ogbuagu, J.S.C. Section 169 of the Evidence Act 2011 states as follows: "when one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such persons representative in Interest, to deny the truth of that thing." Waiver in law means that the person in whose favour a benefit or right exists is aware of those rights or benefits, but chooses freely not to take advantage of those right or benefits. Such person must as a matter of fact be under no disability of whatever nature, to take advantage of those rights. When such a person, fails to take advantage of those rights, then he cannot be heard to complain thereafter, that he was denied the advantage of benefiting from those benefits and rights. Such a person in law is presumed to have waived his rights or benefits, and is as a consequence estopped from later seeking those advantages he had voluntarily waived."per MUSTAPHA, J.C.A. (Pp , Paras. E-F) - read in context 8 PRACTICE AND PROCEDURE - WAIVER: Requirements for establishment of waiver "The trial Court came to this conclusion relying on the authority of OLATUNDE V. O.A.U (1998) 4 SC 91, where the Supreme Court stated the two requirements for the establishment of waiver as: 1. The party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes a waiver. 2. He must do some unequivocal act adopting or recognizing the act or omission."per MUSTAPHA, J.C.A. (P. 25, Paras. D-F) - read in context

6 MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Honorable Justice Husseini Yusuf, of the High Court of the Federal Capital Territory, Abuja, delivered on the 18th of February, 2013, dismissing suit number FCT/HC/CV/1596/09. The plaintiff/appellant claimed against the respondents jointly and severally the following: a. An Order declaring null and void any revocation by the 2nd Defendant of the property to Plaintiff. b. An order declaring null and void any sale of the property made to anybody else including the 1st Defendant by the 2nd Defendant or anybody acting for the 2nd defendant. c. A declaration of title of the property. d. An Order of injunction restraining the 1st Defendant from carrying out any work on the property. e. A perpetual injunction restraining the 1st Defendant whether by himself, agentã ÂÂs privies and/or anybody claiming through from trespassing or continued trespass to the property. f. And Order awarding in favour of plaintiff N5,000, (Five Million Naira) as general and aggravated damages against the defendants 1

7 jointly and severally from psychological trauma suffered by the Plaintiff. g. An Order awarding N500, (Five Hundred Thousand Naira) as special damages being the cost of this suit. The appellant appealed to this Court by a notice of appeal dated the 23rd of April, 2013, but filed on the 25th of April, 2013 on four grounds as follows: GROUND ONE: The High Court of the Federal Capital Territory erred in law and thereby occasioned a miscarriage of justice when it wrongly rejected Exhibit 'P2' as follows: However, I have taken a considered look at the endorsement and I think that for a different reason it ought not to have been admitted. The reason is that under Section 83(4) of the Evidence Act a statement in a document is not deemed or the material part of it was written, made or produced by him with his own hand or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible. Exhibit P2 was not written by the Plaintiff. The signature on it have not been established to have been made by identifiable people. On that note, it cannot be admissible 2

8 pursuant to the rules of Evidence Act. GROUND TWO: The High Court of the Federal Capital Territory erred in law when at failed to properly evaluate the documentary evidence before it and occasioned a miscarriage of justice to the Appellant. The learned Court held as follows: Since the endorsement was not made by the Plaintiff, she owes a duty to prove the maker. According to her, it was made by agents of the Plaintiff apart from a possible lack of authority on the person who purportedly made it, there is the need to identify the real person. This was not done and nobody wrote to the Court to adopt the statement as his own. Under the foregoing provision, the statement becomes inadmissible. GROUND THREE: The High Court of the Federal Capital Territory erred in law when it wrongly applied the principles for the application of the doctrine of waiver as held by the Supreme Court in ONYIA V. ONIAH (1989) 2. SC. (part 1) P. 69 at 87. The trial Court held as follows:...whether in the circumstances of this case the 2nd Defendant has conducted itself in a way as to presume that it has waived its 3

9 right with respect to the time limited for the Plaintiff to perform the contract. What is not clear is when the 2nd Defendant became aware of the payment of the money, the onus of proving this is placed on the Plaintiff who asserts. The burden was in my view discharged. For the doctrine of waiver to apply in this case, two elements must coexist, namely (i) The party against whom the doctrine is waived must have knowledge or be aware of the act or omission which constitute a waiver and (ii) He must do some unequivocal act adopting or recognizing the act or omission. GROUND FOUR: The judgment of the High Court of Federal Capital Territory is against the weight of evidence. From these grounds of appeal the following issues were formulated for determination by learned counsel for the appellant: 1. Whether the learned trial judge rightly rejected Exhibit P2 in the light of the provisions of Section 83(1) and (5) of the Evidence Act, Whether the learned trial judge correctly evaluated the documentary evidence tendered before him by the plaintiff in proof of her case before dismissing same. 3. Whether the 4

10 learned trial judge correctly applied the principles for the application of the doctrine of waiver in dismissing the suit having regard to the entire evidence led before him and the circumstances of the case. In response, both the 1st and 2nd respondents formulated three issues each of their own for determination, those issues are fundamentality the same with those formulated for the appellant, on which now this appeal will be determined, with a little modification; the issues for determination now are as follows: 1. Whether the trial Court was right in expunging Exhibit P2, for being extraneous to the contract. 2. Whether the trial Court properly evaluated the evidence tendered by the plaintiff/appellant. 3. Whether the trial Court correctly applied the principles of the doctrine of waiver in dismissing the suit. Issue One: Whether the trial Court was right in expunging Exhibit P2, for being extraneous to the contract. It is submitted for the appellant on issue one that it was not the case of the appellant that she was the maker of Exhibit P2, as it was tendered to support the claim that agents of the 2nd respondent 5

11 confirmed the availability of the property in dispute, and approved payment for same, before the appellant took out the loan to pay for the property; that Section 83 (4) of the Evidence Act was inapplicable; and the document should have been admitted as a relevant fact in issue in accordance with Sections 4, 5 and 9 of the Evidence Act. That the trial judge wrongly rejected Exhibit P2 and failed to draw reasonable inference from the fact that issues had been joined on same, and that the appellant took custody of Exhibit P2 from the ad hoc committee, and was therefore entitled to tender same in evidence without necessarily laying any foundation; he referred the Court to UDO V. ESHIET (1994) 8 NWLR part 363 at 500, OBEMBE V. EKELE (2001) 10 NWLR part 722 at 691 and A.G. OYO STATE V. FAIRLAKES HOTELS (NO.2) (1989) 5 NWLR part 121 at 282. It is submitted for the 1st respondent that the trial Court was right expunging Exhibit P2 from the record as being inadmissible, same having been admitted wrongly, in disregard of the respondent's objections; learned counsel referred the Court to Section 83 (1) of the Evidence Act, AGBI V. OGBE (2006) 11 NWLR part 990

12 at 65, B. MANFAB NIG. V. M/S.O.I LTD (2007) 4 NWLR part 1053 at 151 and BUHARI V. INEC (2008) 4 NWLR part 1078 at 608. Learned counsel further submitted that Exhibit P2 whether admitted or not cannot vary the sale agreement in issue signed by the minister, that such a contract cannot be varied by a handwritten inscription on a paper by non parties to the contract; he referred to BALIOL NIG. LTD V. NAVACOM NIG. LTD (2010) 16 NWLR part 1220 at 630. Learned counsel further submitted that where time is of essence in a contract any breach entitles the other party to treat the contract as terminated, without need to communicate to the defaulting party the intention to repudiate same; learned counsel referred the Court to GAMLA NIG. LTD V. NEW NIG. BANK PLC (1999) 12 NWLR part 631 page 408. That by February 2007 as admitted in paragraph 14 of the statement of claim the plaintiff/appellant was out of time by two months to pay the balance of the purchase price. It is submitted for the 2nd respondent in response that what was indeed admitted as Exhibit P2 was the hand written minutes on the document and not the letter itself, and the trial Court was

13 right to discountenance the document found to have been wrongly admitted; learned counsel referred the Court to SHANU V. AFRIBANK NIG. PLC (2005) 17 NWLR part 795 at 221. That since there is neither name nor designation of the person who endorsed on Exhibit P2 the handwritten note as not admissible, especially as the respondents denied making the endorsement on the appellant s letter of offer, i.e. Exhibit P2. That also the endorsement on Exhibit P2 is not admissible because the document is a photocopy of a public document which did not satisfy the requirements of Sections 104 and 105 of the Evidence Act 2011; learned counsel referred the Court to ARAKA V. EGBUE (2003) 17 NWLR part 848 at 6. It appears to this Court that Exhibit P2 was expunged by the trial Court for the following reasons, at pages 321 to 322 of the record of proceedings:...it is clear that the purported endorsement...does not form part of the contract between the plaintiff and the 2nd defendant... the disputed endorsement does not take the form of a document under seal and neither was it signed by recognized parties...finally and more importantly on this

14 point the handwritten endorsement on the letter of offer was wrongly admitted. Since the endorsement was not made by the plaintiff, she owes a duty to prove the maker. According to her, it was made by agents of the plaintiff apart from a possible lack of authority on the person who purportedly made it; there is the need to identify the real person. This was not done and nobody wrote to the Court to adopt the statement as his own. Under the foregoing provision, the statement becomes inadmissible." This finding by the trial Court cannot be faulted because this piece of evidence was clearly admitted wrongly in the first place, against the spirited objection of the respondents, see page 302 of the record of appeal. Learned counsel to the appellant's reliance therefore on Section 83 (1) (b), (2) (a) and (5) of the Evidence Act is of little or no help at all in view of the appellant's apparent failure to call the maker of the hand written endorsement on Exhibit P2 to testify, and the appellant's clear failure to proffer credible reasons as to the absence of the maker of the endorsement did not help the cause of the plaintiff/appellant in the least. 9

15 For the avoidance of doubt Section 83(1) (b), (2) (a) and (5) of the Evidence Act read as follows: 83(1) "in any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact, if the following conditions are satisfied: (b) if the maker of the statement is called as witness in the proceedings, provided that the condition that the maker of the statement shall be need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. (2) in any proceedings, the Court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in Subsection (1) of this section shall be admissible as evidence or may, without any such order having been 10

16 made, admit such a statement in evidence notwithstanding that: (a) The maker of the statement available but is not called as a witness. (5) for the purpose of deciding whether or not a statement is admissible as evidence by virtue of this Section, the Court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be certificate of registered medical practitioner." Now in view of the foregoing it therefore follows that a wrongfully admitted piece of evidence is not sacrosanct; it is still subject to scrutiny by an appellate Court. The appellate Court is clearly under a duty to scrutinize, and if need be expunge any evidence that is wrongfully admitted, see OKONJI V. NJOKANMA (1999) LPELR-2477-SC. Inadmissible evidence ought not be admitted even by mistake, where It is admitted, as in this case and the trial Court failed to expunge the said exhibit, this Court ought to 11

17 expunge same, or better still consider the case on the basis of legally admissible evidence only, see ABUBAKAR V. CHUKS (2007) VOL. MJSC 190 at 217, where the Supreme Court held: "Where evidence is admitted in error then it is the duty of the trial Court to expunge it in giving its judgment. If it fails to do so, the appellate Court will reject such evidence and consider the case in the light of the legally admitted evidence. See also, OWONIYI V. OMOTOSHO (1961) ALL NLR 304; ALASE V. ILU (1964) 1 ALL NLR 39." As earlier pointed out the respondents did object to the admissibility of Exhibit P2, but even if they didn't, It is trite law that the admissibility of documents without objection does not foreclose the power of the Court to expunge them from its record as exhibits, or discountenance same in its judgment; See the case of OKAFOR v. OKPALA (1995) 1 NWLR (Pt. 374) 749 at 758, where this Court held: "It is a matter of common sense and good practice, for a trial judge who had wrongly admitted certain evidence and on further consideration of the controversial evidence to expunge it in line from the record where he is properly addressed on the 12

18 issue, if he is satisfied that such evidence was erroneously admitted." The clear provision of the law in this case is that a Court of law can only determine an issue on legally admissible evidence, not on evidence made inadmissible by provisions of the Evidence Act. It is for this reason that the Supreme Court held in I.B.W.A. vs. IMANO LTD. (2001) 3 SCNJ 160 at 177 that: "It cannot be over-emphasized that a Court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too if a document is unlawfully received in evidence in the trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence". Now notwithstanding the express provisions of Section 83 of the Evidence Act the record shows that the appellant pleaded Exhibit P2 for the sole purpose of establishing that time was extended by representatives of the 2nd 13

19 respondent, for the appellant to pay the balance of the purchase price, see pages 5 to 6 of the record of proceedings; but Exhibit P2 cannot vary the contents of a written contract; so in the circumstances its admission would have to count for very little, even if it had not been expunged by the trial Court. The general rule of the law is that where parties have embodied the terms of their agreement or contract in a written document, no extrinsic evidence can be added to alter, subtract from, vary or contradict the express terms, freely agreed to by the parties. The rights and obligations of such parties under the said contract would be determined by the terms specifically set out in the agreement itself and nothing outside it. See UBN v. OZIGI (1994) 3 NWLR (333) 385; KOIKI V. MAGNUSSON (1999) 8 NWLR (615) 492; OJOH V. KAMALU (2006) ALL FWLR (297) 988; BINGE V. GOVT OF RIVERS STATE (2006) ALL FWLR (325) 1 and OLUBODUN v. LAWAL (2008) 9 MJSC 1. In this particular contractual agreement time is of essence, see clause 6 of Exhibit P2; and time is said to be of the essence of the contract, where as held in N.B.C.I V. INTERTRAGED GAS NIG. LTD (2005) 4 NWLR

20 part 916 at 649: "...the parties have expressly stipulated in their contract that the time fixed for performance must be exactly complied with, see BRICKLES v. SMALL (1916) AC 599 (2); Where the circumstances of the contract or the nature of the subject-matter indicate that the fixed date must be exactly complied with e.g. the purchase of a leasehold house required for immediate occupation." In the circumstances therefore Exhibit P2 is extraneous to the contract agreement, and the trial Court properly expunged same; accordingly this issue is resolved in favour of the respondents, against the appellant. Issue Two: Whether the trial Court properly evaluated the evidence tendered by the plaintiff/appellant. It is submitted for the appellant on this issue that the authorization was an act of administrative protocol made at a time when no proceedings were pending or anticipated, and the appellant was not expected to know the names of government officials carrying out their duties, therefore the trial Court ought to have resolved the question of identity in favour of the appellant, especially as the appellant had pleaded that the revocation 15

21 of her offer amounted to mischief and fraud. That the signature on Exhibit P2, which the respondents deny knowing, resembles the one on Exhibit D4 which was signed by the Senior Special Assistant to the Minister, Abdu Muktar, and tendered to prove that the appellant's offer had been withdrawn; and that the appellant denied receiving Exhibit D4, which had no proof of service. Learned counsel contended the 2nd respondent cannot be allowed to run from Exhibit P2 in view of Exhibit D4; he referred the Court to ONWUDINJO V. DIMOBI (2006) 1 NWLR part 961 at 318, EJUETAMI V. OLAIYA (2002) FWLR part 88 at 981 and BASIL V. FAJEBE (2001) 11 NWLR part 725 at 608. Learned counsel unrelenting on Exhibit P2 argued that there are exceptions to the admissibility of Exhibit P2 as it should be allowed where the intention is not meant for the document to be a final statement of the transaction, he referred the Court to OLAGUNJU V. RAJI (1986) 5 NWLR part 42 at 419. It is submitted for the 1st respondent in response that the 2nd respondent denied Exhibit P2, which by the appellant's contention is a public document, as a result of which it ought to have been

22 certified, but was not, thus rendering it inadmissible; learned counsel referred the Court to ONOCHE V. ODOGWU (2006) 6 NWLR part 975 at 70. That the issue of resemblance of signature is an issue of fact requiring evidence, and was not an issue before the trial Court, so it cannot be raised for the first time on appeal without leave of Court, learned counsel referred the Court to GODWIN V. C.A.C (1998) 14 NWLR part 174. It is submitted for the 2nd respondent that after holding Exhibit P2 inadmissible, it follows that there was no need for further consideration of the said document for any purpose. That also the trial Court had no business to investigate the identity crisis of Exhibit P2, when it is the responsibility of the appellant to lead evidence to prove the identity of the maker; learned counsel referred the Court to OMONIYI V. SODENDE (2003) 13 NWLR part 836 at 64. Learned counsel further submitted that the trial Court could not have inferred the identity of the maker of Exhibit P2 from Exhibit D4 because even though Section 10(1) of the Evidence Act allows for comparison of signatures or impressions, the Court could not draw 17

23 inferences because the appellant had not adduced evidence to show that the maker of Exhibit D4 is also the maker of Exhibit P2. That having breached a fundamental term of the contract as to term of payment, which required that payment be made within 194 days of offer, extraneous evidence such as Exhibit P2 cannot vary the terms of payment. It is very important from the onset to appreciate the trite and tested position of the law that the evaluation of evidence as essentially a function of the trial Judge who does not share this jurisdiction with the appellate Court, See ONUOHA v. THE STATE (1998) 5 NWLR (Pt.548) 118; where the trial Judge has unquestionably evaluated the evidence before him, and ascribed to them probative value by his own assessment, it is not the business of the appellate Court to disturb such findings of facts; the appellate Court rarely substitutes such findings with its own, it only does so where such findings are found to be perverse. See WOLUCHEM v. GUDI (1981) 5 SC 291. Having said that it should also be borne in mind that this Court had resolved the issue of the admissibility or otherwise of Exhibit P2 and the Propriety 18

24 of expunging same under issue one, it is needless to revisit that issue once again. Be that as it may, on the question of whether the signature on the endorsement on Exhibit P2 and D4 are the same, or have emanated from Abdul Muktar as contended by learned counsel for the appellant, this Court is in total agreement with learned counsel for the 1st respondent that it is an issue of fact, which required at the very least some form of evidence; and having not been raised at the trial cannot be raised now without leave of this Court first sought and obtained, see GODWIN V. C.A.C (1998) 14 NWLR part 162 at 174. It also is the considered opinion of this Court that the trial Court cannot be expected to embark on an investigative voyage, to find out who signed Exhibit P2 or be expect to find the nexus on its own between Exhibit P2 and D4, without any prompting form the plaintiff/appellant, who ought to lead evidence, in the first instance to establish the identity of the maker of Exhibit P2. While indeed Section 101(1) of the Evidence Act allows for comparison of signatures, writings or finger impressions with others, for the purpose of drawing 19

25 inferences; the plaintiff has to first adduce evidence linking the maker of Exhibit D4 to P2 before the trial Court can even draw such inferences under Section 101 (1) of the Evidence Act, a requirement which the plaintiff/appellant failed. That much is self-evident in the provisions of Section 101(1) of the Evidence Act which provides as follows: "in order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose." The plaintiff appellant clearly breached a fundamental term of the agreement, which required that full payment be made within 194 days, see Exhibit D3, the approved guidelines for the sale of Federal Government Houses in the FCT. It has to be observed at the risk of repetition, that the trial Court cannot be faulted for expunging Exhibit P2, 20

26 which not only introduced extraneous evidence; but has also not been shown to be capable of being used under the exceptions to the general rule of admissibility, in Section 128 of the Evidence Act. This Court is satisfied that the trial Court properly evaluated the documentary evidence before it before dismissing the plaintiff/appellant's claim; accordingly this issue too is resolved in favour of the respondents, against the appellant. Issue Three: Whether the trial Court correctly applied the principles of the doctrine of waiver in dismissing the suit. It is submitted for the appellant that the trial Court in spite of laying down the conditions necessary for the doctrine of waiver to operate, yet failed to apply same; and also that the 2nd respondent never denied that Aso Savings and Loans Plc was not its accredited agent, for receiving payments on its behalf; that being so the lawful acts of the agent is that of the principal learned counsel contended. That the lodgment of money into the account of the 2nd respondent and the retention of same followed the common course of business, especially as the 2nd respondent is customer of the

27 Aso Savings and loans Plc, with a contractual relationship; he referred the Court to FOLEY V. HILL (1848) 2 HLC 28. Learned counsel contended the 2nd respondent knew it had a duty to reject or refund the money paid by the appellant into its account for a given purpose outside the time stipulated for that purpose, and that by retaining the appellant's payment in its account, and allowing the appellant to service the loan the 2nd respondent led the appellant to believe that it will not insist on the stipulation as to time, thus allowing for waiver to operate; he referred the Court AFRO TECH. SERVICES NIG. LTD V. MIA & SONS LTD (2000) 15 NWLR part 692 at 802. Learned counsel further submitted that the 1st defense witness who testified for the 2nd respondent adopted his witness' statement on oath on the 9th of February 2012 wherein he admitted that the appellant paid them in June, 2007 and yet the 2nd respondent did not reject the money until it issued Exhibit D1 on the 6th of June It is submitted for the 1st respondent in response that the trial Court found that the necessary conditions for the doctrine of waiver did not apply to this 22

28 case as no act of the 2nd respondent constituted a waiver. That also notwithstanding the acceptance of the deposit from the plaintiff by Aso Savings and Loans Plc the appellant did not deny that in her pleadings or evidence that for payment was of essence, he referred the Court to ADIKE v. ORIARERI (2002) 4 NWLR part 758 at 544. It is submitted for 2nd respondent that the issue of waiver or estoppel does not arise, he referred the Court to Section 169 of the Evidence Act, 2011 and OLATUNDE V. O.A.U (1998) 4 SC 91. The 2nd respondent cannot be said to have had knowledge of the fact of payment by the appellant because he immediately wrote Exhibit D1 to Aso Savings and Loans rejecting the payment upon becoming aware. In ODU A INVESTMENT CO. LTD. V. TALABI (1997) 10 NWLR (pt.523) 1 waiver was defined in the following terms: "By way of a general definition, waiver - the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon." Per Ogbuagu, J.S.C. 23

29 Section 169 of the Evidence Act 2011 states as follows: "when one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such persons representative in Interest, to deny the truth of that thing." Waiver in law means that the person in whose favour a benefit or right exists is aware of those rights or benefits, but chooses freely not to take advantage of those right or benefits. Such person must as a matter of fact be under no disability of whatever nature, to take advantage of those rights. When such a person, fails to take advantage of those rights, then he cannot be heard to complain thereafter, that he was denied the advantage of benefiting from those benefits and rights. Such a person in law is presumed to have waived his rights or benefits, and is as a consequence estopped from later seeking those advantages he had voluntarily waived. The trial Court 24

30 having carefully analyzed the principles of waiver eloquently, and without blemish, came to the conclusion that there was no act or conduct on the part of the 2nd respondent to suggest a waiver when it held at pages 328 to 329 of the record of appeal: "...the 2nd defendant need not write the plaintiff that the time for payment had elapsed. As a matter fact Exhibit D4 was not necessary. Secondly, the exhibit which was a letter written to the plaintiff to inform her cannot be taken to be a positive act adopting the payment. Furthermore, the 2nd defendant did not even issue receipt to show that the payment was accepted. This is therefore not a proper situation for estoppel to apply..." The trial Court came to this conclusion relying on the authority of OLATUNDE V. O.A.U (1998) 4 SC 91, where the Supreme Court stated the two requirements for the establishment of waiver as: 1. The party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes a waiver. 2. He must do some unequivocal act adopting or recognizing the act or omission From the foregoing it is the considered opinion of this 25

31 Court that the trial Court was right in holding that the principles of waiver did not apply to defeat the interest of the 2nd respondent; especially when it is taken into account that even though the appellant claimed to have paid the amount due in 2007, after ostensibly obtaining approval, though the 2nd respondent denied giving such approval; this is more so in view of the fact that the offer lapsed the moment the appellant failed to meet the terms of the agreement in time. In response to the contention of learned counsel to the appellant that the 2nd respondent should have written to reject the payment the moment it was credited into its account, I can't help but agree that even though the relationship is that of banker and customer, the 2nd respondent cannot in the circumstances be expected to know about the payment immediately it was made, especially when both the bank and the appellant had every reason to know that time was of the essence, and the time allowed had elapsed; and more so when the 2nd respondent wrote to reject the payment vide Exhibit D1, immediately it got to know about the payment. This Court fails to see any reason to suggest 26

32 27 that the 2nd respondent waived its rights, when the balance of payment was made, after the agreed 194 days had elapsed, accordingly this issue too is resolved in favour of the respondents, against the appellant. Having resolved all the three issues for determination in favour of the respondent against the appellant the appeal now fails, and it is accordingly dismissed, judgment of the trial Court is hereby affirmed. Parties to bear their respective costs. MOORE ASEIMO A. ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, Mohammed Mustapha, JCA, just delivered. I agree that this appeal lacks merit. I also dismiss it. TANI YUSUF HASSAN, J.C.A.: I read before now the lead judgment just delivered by my learned brother, Mohammed Mustapha, JCA. I agree with the reasoning and conclusion therein, that the appeal is devoid of merit. I also dismiss it and affirm the judgment of the trial Court.