Dr. (Chief) F.a.z. Adekanye V. Grand Services Ltd (2007)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an appeal against the Ruling delivered by the Hon. Justice L.H. Gummi at the Wuse High Court of Justice, Abuja on 17/4/2002 and the judgment of 17/6/2002. The combined notice of appeal had 7 grounds of appeal.
FACTS BRIEFLY STATED:-
The Plaintiff in paragraph 19 of his Statement of claim, claimed against the original two defendants as follows:-
(i) Against the 1st Defendant an order of perpetual injunction prohibiting the 1st Defendant her servants, agents and /or privies from committing further acts of trespass on the said land and /or alternatively.
(ii) Against the 1st Defendant the sum of N6, 800.000.00 being expense incurred by the Plaintiff in acquiring the fenced and substantially developed land.
Before the commencement of the trial the name of the 2nd Defendant was struck out on the application of the Plaintiff, hence, the 2nd relief was as a result deemed abandoned.
The germane averments as contained in his statement of claim are contained in paragraphs 3, 4, 5, 6 and 7 which were to the effect that the Plaintiff bought a property covered by a Certificate of Occupancy No. FCT /ABAU/073 from Broad Based Mortgage Finance Co. Limited i.e. the 2nd Defendant whose name have earlier been struck out.
At the trial, two witnesses including the plaintiff gave evidence. The plaintiff tendered Exhibit 7 P1, a Certificate of Occupancy issued in the name of one Mrs. JA Akinrinade, a Power of Attorney Exhibit P2, issued in favour of the Broad Based Mortgage Finance limited by the said Mrs. J.A. Akinrinade.
The Defendant/Respondent in his Statement of Defence claimed its title through the auction sale conducted by the Bailiffs of the lower court in a case in which one Alhaji Tolani obtained judgment against the Broad Based Mortgage Finance limited, the plaintiff alleged ASSIGNOR. The relevant averments are contained in paragraphs 3, 4, 5, 6, and 7 of the Statement of Defence.
The Plaintiff in his Reply to the Statement of Defence dated 1st August 2000 neither denied nor challenged the auction sale as pleaded, but claimed that he had no notice of the sale.
On the 16/10/2001, the Defendant with the consent of the plaintiff’s counsel tendered from the bar the following documents obtained from the Deputy Sheriff of the lower court:
(i) The receipt of sale
(ii) Proceedings of the auction sale
(ii) Photocopy of the advertisement placed in Abuja Times Newspapers;
(iv) Letter of transfer of title written to the Minister of the FCT which was written by the Deputy Sheriff of the High Court
(v) Letter from the Minister of the Federal Capital Territory Lands Department acknowledging the request to transfer the interest in the property to the Defendant and,
(vi) The Certificate of purchase of the property in question.
Thereafter the Defendant closed its case and the parties addressed the court. After the addresses of the parties the Defendant brought a motion to amend the Certificate of Occupancy pleaded as No. FCT/ABU/013 with the Exhibit tendered in court the trial court granted the application.
Thereafter the trial court in its judgment on the substantive case, dismissed the plaintiff’s case as lacking in merit. It is against these decisions (ruling and judgment) that the Plaintiff has appealed to this court
ISSUES FOR DETERMINATION
The Appellant in a Brief of Argument filed on 26/11/02 raised four issues for determination:
(i) what property did the Defendant buy in the invalid auction sale of 28/7/95, if any, was it right of the learned trial Judge to have granted the oral application for an amendment at the stage of the trial.
(ii) Assuming that it was Chief (Mrs.) J.A. Akinrinade’s plot in question which the defendant actually purported to purchase in the void auction sale of 28/7/95 does the defendant have any colour of interest to the property to justify her going on to the land.
(iii) Did the plaintiff acquire any right to hold Chief (Mrs.) J.A. Akinrinade’s plot (plot 610 Cadastral Zone AS Maitama District; Abuja covered by C of O. No. FCT/ABU/O73 admitted as Exhibit P1 and duly read) and
(iv) who proffered better evidence to hold onto the land in dispute?
The Respondent formulated three issues which are:-
(1) Whether grounds 3, 4, 5, 6 and 7 of the Notice of Appeal are not liable to be struck out on the ground
that they are incompetent (Preliminary Objection) in grounds 3; 4, 5, 6 and 7,
(1) Did the Plaintiff Appellant prove a better title than that of the Respondent in order to entitle him to succeed in a claim of trespass against the Defendant/Respondent? Grounds 1, 5 and 6;
(2) was the trial court right in granting an Application to amend the Respondents pleading as it was done
in this case. Ground 7
I shall however proceed with the Preliminary Objection raised by the Respondent firstly before I would be in a position to know if the appeal can be tackled or not.
In the preliminary objection the Respondent submits that the Grounds of Appeal Nos. 2, 3, 4, 5, 6 and 7 are incompetent and should be struck out.
Learned counsel for the Respondent said the issues encompassed in grounds 3 and 4 of the Notice of Appeal were being raised for the first time before this court without first obtaining the leave of court. That ground 3 alleges fraud in the conduct of the auction sale conducted on 28/7/93, while ground 4 faulted the decision of the lower court for not declaring the said auction sale null and void. That these issues were not borne out of the pleadings before the lower court. That no where was fraud raised and a party relying on issue of fraud as a defence must specifically plead it with particulars. He cited Onamade v. A.C.S. limited (1997) 1 SCN 65 at 84.
Learned counsel said there was no where plaintiff claimed for any relief declaring the auction sale as null and void and a court can not grant a relief not claimed by a party. He cited Adeye v. Adesanya (2001) 2 SCNJ 79 at 87. That having not raised these issues as part of his case before the lower court, the Appellant cannot raise same before this court without the leave of court. He referred to Global Transport Oceanico SA & anor v. Free Enterprises Nigeria Limited (2001) 2 SCNJ 224 at 239; Akinnubi v. Akinnubi (1997) 1 SCNJ 2002; Koya v, UBA Ltd (1997) 1 SCNJ 1 at 22; Oshotoba v. Olujitan (2000) 2 SCNJ 159 at 172. That grounds 3 and 4 of the Notice of Appeal are incompetent and should be struck out.
On ground 7 learned counsels for the Respondent said this ground challenges the decision of the trial court granting the application to amend the statement of defence filed by the Defendant. That the ruling was delivered on the 17/4/02 while the Notice of Appeal was filed on 27/6/2002 i.e. two months after the decision was made and out of the time allowed to appeal being an interlocutory decision. He said it is permissible for an appeal against an interlocutory decision to be heard together with the final appeal against the substantive case, but where such an appeal is filed out of time, the Appellant must obtain the leave of this court before the appeal in the interlocutory decision could be taken together with the final appeal. He cited Oke v. Nwaogbuniya (2001) 1 SCNJ 158 at 168; Ogigle v. Obiyan (1997) 10 NWLR (pt 524) 179.
Learned counsel said since that necessary leave was not obtained by the Appellant before adopting the procedure the adopted ground 7 is incompetent and should be struck out. Learned counsel for the Respondent went on to say that in regard to grounds 5 and 6 of the Notice of Appeal there are no valid particulars to support them. That for the particulars of a ground of appeal to be valid they must not be the arguments or narratives that should be proffered at the hearing. He cited Global Fishing Industries v. Coker (1990) 11 SCNJ 56 at 84. He said the particulars to grounds 5 and 6 are purely arguments and narratives. He referred to those particulars. He referred to order 3 Rule 2(3) of the Court of Appeal Rules 2002; Nsirim v. Nsirim (1990) 5 SCNJ 174 at 182; Amadi v. Okoli (1977) 7 SC 57 at 65; NTA v. Anigbo (1972) 2 SC 156 at 164 and Osawaru v. Ezeiruka (1978) 6 – 7 SC 135.
The Appellant in their Reply Brief filed on 30/11/05 stated that the Preliminary Objection should be dismissed. That grounds 3 and 4 arose from the pleadings of the defendant who is the Respondent herein and was established by him through Exhibits D3, D4 and D5 which were dumped and not read. That paragraphs 2, 3 and 4 of the plaintiff’s reply to the defendants statement of defence filed on 3/8/2000 constitute a clear challenge to the alleged auction sale. He referred to paragraphs 11, 12, 14 and 18 of the Statement of claim.
That appellant did not need any leave to raise the complaints in grounds 3 and 4 of this appeal.
In respect to ground 7 of the appeal, Appellant’s counsel said the respondent was aware of the motion on notice for leave which the appellant filed on 14/1/2005 and which was slated for 1/4/2003 for hearing. A fresh application had been filed by the appellant and now refiled.
Learned counsel for the Appellant said that the allegation that particulars in grounds 5 and 6 of the Notice of Appeal are purely argumentative and narrative in nature and contrary to order 3 Rule 2(3) of the Court of Appeal Rules is totally misconceived. That the particulars constitute a detailed itemisation of the complaints arising from the 2 grounds (5 and 6) and therefore proper. He cited Nwadike v. Ibekwe (1987) 11 – 12 SCNJ 72.
The principles which the court considers in granting an application for leave to amend the writ of summons and or pleadings are as follows:-
(a) The court must consider the materiality of the amendment sought and will not allow an inconsistent or useless amendment
(b) Where the amendment would enable the court to decide the real matter in controversy and without injustice.
(c) Where the amendment relates to a mere misnomer, it will be granted almost as a matter of course.
(d) The court will not grant an amendment where it will create a suit where none existed.
(e) The court will not grant an amendment to change the nature of the claims before the court.
(f) Leave to amend will not be granted if the amendment would not cure the defect in the proceedings.
(g) An amendment would be allowed if such an amendment will prevent injustice. Any amendment which will result in injustice to the other party or which will violate the rule of audi alteram parten will not be a/lowed. The rule will be infringed if an amendment is introduced at such a stage that the other side no longer has the opportunity of adducing its own answer to the point which the amendment has enabled the applicant to introduce.
(h) An amendment will not be granted on appeal where it would be inconsistent with the testimonies of witnesses on which both parties fought the case at the trial.
(i) An amendment will not be allowed on appeal if it would require adducing additional evidence or necessitate a new trial. See Jessica Trading Co. Ltd v. Bendel Ins. Co. Ltd (1993) 1 NWLR (pt 217) 538 per Kutigi JSC In Adelaja v. Alade (1994) 7 NWLR (pt 358) 537 Supreme Court held:-
Generally, all amendments ought to be made for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings. If the amendment sought relates to a mere misnomer, it will be granted almost as a matter of course/ but an amendment to change the nature of the claims before the court will not be allowed.
Olu of Ward v. Esi (1958) SCNLR 384; Foko v. Foko (1968) NMLR 441.
This preliminary objection cannot stand based on insufficiency of necessary materials to impugn the competence of the grounds or the particulars in the grounds.
I would refer to the case of:
Koya v. UBA (1997) 1 SCNJ 1.
“Though inelegantly drafted or couched, grounds of appeal numbers 1 and 2 embodied enough particulars of error as sufficiently comply with Order 3 Rule 2(2) of the Court of Appeal Rules to leave the court in no doubt of the precise nature of the error or misdirection complained of”.
From the above cited case I anchor my considered view that this objection lacks merit and is hereby dismissed.
I would therefore proceed with the appeal proper and consider the issues for determination in which I would make use for convenience those of the Respondent as framed.
ISSUES NO 2
Learned counsel for the Appellant stated that according to defendant’s statement of defence, the land he bought was a plot covered by C of O. No. FCT/ABU/O13. That he did not apply for an amendment until the plaintiff had responded to his final address. That the plaintiff objected to the oral application for the said amendment but not withstanding the learned trial Judge granted it. That it is most likely that the plot defendant bargained for was a plot covered by C of O. No. FCT/ABU/013 which might have been at a different location but probably amended by the Broad Based Mortgage Finance Co. Ltd. He referred to the evidence in the trial court.
Learned counsel for the Appellant said that the learned trial Judge erred in granting the oral application for amendment more especially since there was no lawful evidence but there was a typographical error in the Statement of defence up to the stage when the defendant made her oral application for amendment through her counsel. That Issue NO 2 should be found in favour of the appellant and allow Ground 7 of the appeal on which this issue is pivoted.
Learned counsel for the Appellant, Mr. Ijaodola stated that the sale violates Section 44 of the Sheriff and Civil; Process Act and Section 19 of the Auctioneer’s Law which mandatorily requires a minimal 7 days prior before an auction sale can lawfully take place and non- compliance is a criminal offence. He cited Ude v. Nwara (1993) 2 SCNJ 47 at 66 – 67; Useni v. A.I.I.C. Ltd (1984) 3 NWLR (pt 11) 229; Taiwo v. Adegboro (1997) 11 NWLR pt 528 at 229.
That it is now trite that anything which is built on nothing must collapse. He referred to Macfoy v. UAC (1962) AC 150, 162; Shenconsult Nigeria Limited v. Ukey (1981) 1 SC 6 at 9. He stated on that it is revealing to scrutinise Exhibits D1 and D5. That the Respondents say the court order on which the auction sale was pivoted was made on 24/8/95. That is fallacious learned counsel said.
He went further to state that Exhibit 04 (the advertisement in the Abuja Times of 28/7/95 informed the general public that the auction sale would hold at 11 am on 2/8/95 but ridiculously the sale took place that same day. That, that was a kangaroo auction sale. That if any sale actually took place that day, which is doubtful, those who knew that it would hold that day must have been notified orally and fraudulently and must be participants in the organized fraud. That it was not surprising that only hand-picked persons took part and the offers were unreasonably too low, which is another evidence of fraud. That the highest bidding was that of the Respondent – N1.5million (Exhibit D3) whereas the plaintiff without any notice of the fraudulent auction sale happily paid N5 million for the same property on 21/9/95 as per Exhibit P3. That Section 47 of the Sheriffs and Civil Process Law does not save the fraud. That it does not affect the plaintiff/Appellant who bought on 21/9/05 the property without any notice. He said the nil interest of the defendant/Respondent was not registered and no title document was registered. That no actual notice was received by the Plaintiff/Appellant until after the statement of defence of the defendant/Respondent was received after 25/7/2000. That this issue should be answered in the negative.
Learned counsel for the Respondent contended that for a claimant for damages in trespass to succeed where title has been put in issue, he has to establish title better than the alleged trespasser. That the law attaches lawful possession to the person with better title. Also that it is the law that proof of ownership is prima facie proof of possession. He cited Ate-Kwadzo v. Kwasi Adjei (1944) 10 WACA 474; Kasunmu v. Abeo (1972) 2 SC 69; Kponuglo v. Kodaja (1931) 12 WACA 24; Akinterinwa v. Oladunjoye (2000) 4 SCNJ 149 at 172 – 173.
Mr. Ameh for the Respondent further stated that it is trite law that where the plaintiff traces his root of title to a particular person and the averment thereon is challenged, the plaintiff must prove the title of the person as well as his own in such a circumstance. The Appellant cannot totally ignore the validity of his grantor’s title and concentrate only on his own title to such land as he would not have acquired a valid title to such land. If, in fact, his grantor at all material times had no title thereto. He cited Mogaji v. cadbury Fry (Export) Limited (1985) 2 NWLR (pt 7) 393; Alii v. Alesinloye (2000) 4 5CNJ 264 at 282 – 283.
Learned counsel for the Respondent said for the Appellant to succeed in the present case, he must go to satisfy the court on the validity of the Broad Based Mortgage Finance Limiter’s title is how it derived its title to the land in dispute before it allegedly transferred it to him and this Appellant failed to do.
Learned counsel for the Respondent further stated that when the interest of the Appellant is compared with that of the Respondent, the Respondent’s title is better and more secured than that of the Appellant.
That Exhibits D1, D2, D3, D4, D5 and D6 showed that the Respondent acquired its title through an auction sale conducted by the Deputy Sheriff of the lower court in the course of enforcing the lower court’s judgment under a publicly conducted auction which up till the commencement of the suit and thereafter nobody had applied to have it set aside for any irregularity. Therefore that sale became absolute under the provisions of Section 47 of the Sheriffs and Civil Process Act. He cited Kachalla v. Banki (2001) FWLR (pt 73) 1 (2001) 10 NWLR (pt 721) 442; Havard International School Limited v. Mima Project Ventures limited (2004) FWLR (pt 188) 963 at 987 – 990.
Once a party pleads and traces his root of title in an action for a declaration of title to land to a particular person or source and this averment is challenged, that party to succeed, as a plaintiff in the suit must not only establish his title to such land, he must also satisfy the court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title where this was being challenged and concentrate only on his own title to such land as he would not have acquired a valid title to such land if, in fact, his grantor at all material times had no title thereto. See Alli v. Alesinloye (2000) 4 SCNJ 264 at 282 – 283.
On questions of title, evidence of acts of ownership with respect to the same property or even with respect to other places connected with the locus in quo by such a common character of locality as to give rise to the inference that the owner of one is likely to be the owner of the other. Though the maxim res inter alios acta alteri nocere non debet (things transacted between strangers do not injure those who are not parties to them) are admissible as one of the exceptions. See Nwadike v. Ibekwe (1987) 4 NWLR (pt 67) 718.
A party who does not establish title to land cannot maintain an action in trespass. This is so where in an action based on title the plaintiff is unable to prove title. See Kasunmu v. Abeo (1972) NSCC 145.
A Plaintiff’s claim being for trespass and for an injunction against further trespass, he has to put his title in issue. See Akinterinwa v. Oladunjoye (2000) 4 SCNJ 149.
Bearing these principles above stated and the findings of the learned trial Judge in view, it is clear that the Appellant brought in issue title to the said property which I must say does not have a doubtful identity, the amendment of the Statement of defence in regard to the number quoted for the Certificate of Occupancy was in respect of a clear typographical error which the trial court rightly rectified on application. It is true that before a declaration of title is given the land to which it relates must be ascertained with certainty, the test being whether a surveyor can from the record produce an accurate plan of such land. See Kwadzo v. Adjei (1944) 14 WACA 274.
From the records the plaintiff/Appellant did not do too well in establishing his title and when such happens, the matter of possession takes a prominent position in the scheme of things and on that score I shall refer to what is trite in relation thereto. See Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (pt 7) 393, where it was held:-
- Once a party pleads and traces the root of his title to a particular person or family he must establish how that person also came to have title vested in him. He cannot ignore the proof of his overlords title and rely on long possession.
- Long possession does not confer title on a party where another traces his title to the true owners
unless such possession is of such a nature as to oust the title of the true owner by acquiescence. See Thomas v. Holder 12 WACA 78; Da Costa v. Ikomi (1968) 1 All NLR 394.
- Long possession can only be used to defeat a claim for declaration of title and trespass and not to establish a claim for declaration of title and damages for trespass against the true owners.
Possession being nine points of the law, the attitude of the courts has been to move in to protect it. See Ude v. Nwara (1993) 2 NWLR (pt 277) 638; Obikoya & Sons Ltd v. Governor of Lagos State (1987) 1 NWLR (pt 50) 385.
It cannot be lost sight of that possession resides in the claimant that establishes a better title. See Akinternwa v. Oladunjoye (2000) 4 SCNJ 149.
Appellant having not set up a strong case in proof of his title and the long possession, active and constructive residing in the Respondent who built a shopping mall which could not have been done over-night, therefore to prove that the auction sale through which Respondent acquired that interest has to be near watertight or airtight which ever is stronger. The circumstances in the case of; Oseni v. American International Insurance Co. Ltd (1985) 3 NWLR (pt 11) 229 are dissimilar and cannot apply. In that case it was held:-
“In the circumstances of this case, the auction sale had not been concluded in accordance with the provisions of Sections 19 and 20 of the sales of Auction Law Lagos State in that:-
(a) The notice of the auction sale published in the issue of concord Newspaper of 28th of the February 1984 fell short of the requirement of at least seven days notice before the sale as provided by law.
(b) The notice which ought to have been given to the Principal State Land Officer was not given.
(c) The notice in writing to the State Commissioner for Lands which should be given by the Auctioneer two days before the sale stating the place and time of sale, as well as the goods to be auctioned was not so given.
(d) A complete account of the sale, after 60 hours of the sale was not also given.
(2) The notice of February 1984 is also defective in that it does not state the place of the residence of the
seller the respondent and it does not state the reserve price for the property to be sold yet it lays down as a condition payment of 50% of the purchase price” Ademola JC4 at P.234 said :The conclusion therefore I have reached in this appeal is that no valid sale of appellants property had taken place on the 29th day of February 1984″.
In the instant case the pleadings had not been definitively stated by Appellant as to the fraud or irregularity of the auction sale Appellant now seeks to impugn. Infact there was some element of vagueness to be akin to a bone without meat upon which a proper case of title to the land would have been properly established. This is at least to show that the Appellant had a better title or even that the equity of the case was on their side. Rather the Appellant is attempting in this appeal to proffer what was absent in the court below and that they cannot now do as it is too late in the day. There needs to be a reminder that Parties are bound by their pleadings. See Obimiami Brick & Stone Ltd v. A.C.S. Ltd (1992) 3 NWLR (pt 229) 260.
The essence of pleadings is to compel the parties to define accurately and precisely the issue upon which the case between them is to be fought to avoid element of surprise by either party. It also guides the parties not to give evidence outside the facts pleaded as evidence on a fact not pleaded goes to no issue. See Akinterinwa v. Oladunjoye (2000) 4 SCNJ 149.
I have to recast the conclusion and decision of the learned trial Judge at page 72 of the Records. It reads:-
“I agree that failure to challenge such sale (auction) within the 21 days provided under the Sheriff and Civil Process Act Cap 407 LFN 1990 renders the sale absolute. There is no evidence in these proceedings to show that any such challenge was ever made by messrs Broad Based Mortgage Finance Ltd within the 21 day (six) period after the sale and i therefore hold that the sale to the defendant of the property, NO. 610 Cadastral Zone AS Maitaima District Abuja is in order. Furthermore by Exhibit D1, D2, D3, D4 and D5 I am of the view that the defendant has made out a case which shows that he has paid the sum of N1.5m for the property in dispute and has gone further to show that (by the admission of the plaintiff) he is, and at all times material to this suit, been in possession of the property and consequently I hold that the defendant has due to the effect of Exhibit D1, D2, D3, D4 and D5 acquired an equitable interest over the property in dispute. He has to show payment of the purchase price as well as physical possession of the plot in question. This possession alone is in itself a good title as against every one except the real owner.
The plaintiff as J indicated earlier in this judgment had been able to show that he had paid the sum of N5m to one Chief Ogunnusi who was reportedly acting under the authorization of Messrs Broad based Mortgage Finance Ltd as payment for the property in dispute. Apart from that the plaintiff did not prove any other thing. He did not establish before, this court that he was in possession of the property in dispute. He did not tender the Deed of Assignment transferring the property from Messrs Broad Based Mortgage Finance Ltd to himself he did not produce the resolution of the Board of Directors of Messrs Broad based. In which they either authorized the said Chief Ogunnusi to sell the property or ratified the sale of the property to him by the said Chief Ogunnusi. The plaintiff did not also lead evidence to show that the auction sale at which defendant bought the property was fraudulent as urged on by learned counsel Prince Ijaodola. In fact there was no challenge to the sale by the original owner of the property or her attorneys and so it is impossible for the plaintiff to successfully maintain an action for trespass on the said property against the defendant and I so hold. In view of the foregoing and for all I stated earlier in this judgment I am of the view based on the evidence adduced in the trial that the plaintiff has not discharged the onus placed on him in this case. That onus is for plaintiff to trace his root of title by credible evidence from the original owner of the plot i.e. Mrs. J.A. Akindnade to himself without break. The plaintiff was unable to do that in this case and he must therefore fail in his action for trespass against the defendant who had put the issue of title or ownership of the property in line during trial, in the premises, the plaintiff’s action against the defendant fails and is accordingly dismissed”
The above summation and conclusion of the learned trial Judge are borne out of the evidence before him which he properly evaluated and came to the decision he did which in summary is that the Appellant as plaintiff had not proved his case. I agree completely with that conclusion and I see no reason to upset it. This Issue NO 2 is therefore resolved for the Respondent that is, that the Appellant had failed to prove his title to the disputed land.
ISSUE NO 3
Learned counsel for the Appellant said that all attacks leveled on the plaintiff’s case are in law baseless for the following reasons:-
(i) A party is entitled to abandon any part or parts of his pleadings. That in this case any portion of the statement of claim relating to the claim against the 2nd defendant became irrelevant since the action against her had been withdrawn.
(ii) A plaintiff is not under a duty to call any particular witness. He cited Section 149 (d) of the Evidence
Act; Akinola Aguda, Law and Practice Relating to evidence in Nigeria 1980 para 21 – 54 – 21.55 pp. 269 – 27; Francis Odili v. The State (1977) 4 SC 1 at 8, Leonge v. Police (1959) 4 FSC 203; Bello v. Kassim (1969) NWLR 148. He referred to the evidence.
Learned counsel said it is the prerogative of a party to determine what evidence to proffer and he cannot be lawfully blamed or punished for not tendering any piece of evidence oral or documentary. That the oral evidence of PW1 and PW2 were sufficient to convey equitable title to the plaintiff.
He stated on that the plaintiff had proved a solid case whereas the defendant had a very wooly case. That the defendant had a nil interest and did not proffer any lawful evidence to sustain her case. That she did not give or call any oral evidence and only dumped on the trial court 6 documents admitted as Exhibits D1, D2, D3, D4, DS, and D6 which were neither read nor deemed to be read by consent as required by order 37 Rule 23 of the High Court (civil) Procedure) Rules 1991- Abuja.
The Respondent through counsel said that the amendment of the pleadings only brought the pleadings in line with the documentary evidence already admitted in this case. That the amendment as granted was not an additional evidence and neither was the Appellant prejudiced as a result of the amendment. He cited Adelaja v. Alade (1994) 6 SCNJ 160; Jessica Trading Co. Ltd v. Bendel Insurance Co. Limited (1993) 1 SCNJ 240.
The Respondent was at liberty to defend the case as he felt he ought to. This is because a party is not bound to call a particular witness if he thinks he can establish or prove his case through another channel.
See Section 148 (d) of the Evidence Act; Bello v. Kassim (1969) NMLR 148.
It is with that in view that Appellant harping on the fact that Respondent called no oral witness is neither here nor there. Infact it is of no moment since by the documents they tendered through the bar and the added advantage that they had the land built up with such an elaborate structure and well sitted in the buildings in complete possession that it is the Appellant who ought to have done more to be able to get a finding for them or this Appellant court to find in their favour. They Failed to do so and the continuous gripping over the amendment which was clearly rightly done since both parties are talking of the same land the minor error which the court below rectified had no effect whatsoever on the solid findings and decision of the learned trial Judge. Therefore, I resolve this issue in favour of the Respondent by holding that the amendment done by the court below was right in the circumstance and I further hold that this appeal has no leg to stand on and I hereby dismiss it. I uphold the decision and dismissal of the suit in court below.
I award N10, 000 costs to the Respondent to be paid by the Appellant.
Other Citations: (2007)LCN/2187(CA)
