Dr. (Mrs.) Margaret Essien V. Obong Joseph Effiong Essien & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE J.C.A.

This is an appeal against the judgment of the Hon. Justice Michael Edem delivered on the 4th of February, 2005 in suit No. HC/176/2002. The Appellant herein was Plaintiff in the lower court and had instituted the action by a writ of summons dated and filed on 15/4/2002. By her statement of claim dated and filed on 27/5/2002, the Plaintiff claims against the Defendant for:

(1) A declaration that the building and premises situate at No. 12 M.C.C. Road, Calabar contained in Certificate of Occupancy registered as No. 35 at page 35 in volume 199 of the Lands Registry office at Calabar is the joint property of the Plaintiff and the Defendant.

(2) A declaration that the Defendant cannot sell or transfer the said building and premises to any person without the consent of the Plaintiff.

(3) An order of injunction restraining the Defendant by himself, his servants, agents, and assigns from dealing with the premises adversely against the Plaintiff’s interest.

Based on the Plaintiff’s writ of summons and statement of claim as above, pleadings were exchanged between the Plaintiff and the Defendant.

On 16/12/2002, the 2nd and 3rd Defendants, having joined the 1st Defendant in the case, filed a joint statement of Defence of the 2nd and 3rd Defendants.

On 18/12/2002, the Plaintiff/Appellant filed Amended writ of summons and Amended statement of claim which she claimed against the Defendants jointly and severally for:

1. A declaration that the building and premises situate at No. 12 M.C.C. Road, Calabar contained in a Certificate of Occupancy registered as No. 35 at page 35 in volume 199 of the Lands Registry office at Calabar is the Joint property of the Plaintiff and the 1st Defendant.
2. A declaration that the 1st Defendant cannot sell or transfer the said building and premises to the 2nd and 3rd Defendants without the consent of the Plaintiff and that any purposes sale thereof by the 1st Defendant without the consent of the Plaintiff is null, and void and of no effect.
3. A declaration that any such sale or transfer without the statutory consent of the Governor renders the sale or transfer a nullity.
4. An order of injunction restraining the 1st Defendant by himself, his servants, agents and assigns from dealing with the premises adversely against the Plaintiff’s interest.

On 6/3/2003, the 4th Defendant who was joined by order of court on 18/12/2002 filed a statement of defence. The relevant pleadings before Michael Edem J. at the lower court were Plaintiff’s Amended statement of claim of 18/12/2002. Joint statement of defence of the 2nd and 3rd Defendants containing their counter claims as follows:

(i) An order of declaration that the assignment of the property at No. 12 M.C.C. Road, Calabar by the 1st Defendant to the 2nd Defendant is lawful and valid in law.

(ii) An order of declaration that the 2nd Defendant is a purchaser for value without notice of encumbrances of the property situate at No. 12 M.C.C. Road, Calabar.

(iii) An order of mandatory injunction compelling the Plaintiff to surrender possession of the property at No. 12 M.C.C. Road, Calabar to the Defendant forthwith.

The third relevant pleading before the lower court is the statement of defence of the 4th Defendant dated 6/3/2003 and filed on 7/3/2003.

And finally, the Reply to 2nd and 3rd Defendants statement of defence and defence to counter claim by the Plaintiff dated and filed on 16/4/2003.

Meanwhile, the 1st Respondent commenced proceedings before Uke, J. for the dissolution of his marriage with the Appellant in Suit No. HC/8D/2002. The Appellant in the said proceedings filed a cross petition wherein she prayed Uke J. to determine amongst others (p.102).

“(3) That the building at No. 12 M.C.C. Road shall remain the joint property of the petitioner and the Respondent and kept intact to serve the interest of the children of the marriage.”

Evidence in the case leading to this appeal was heard and closed before Edem J. The parties through their respective Counsel opted to submit written addresses. On 16/12/2004, when hearing resumed for the adoption of the written addresses filed by the parties, the Plaintiff brought a motion on Notice for leave of court to lead additional evidence, the additional evidence turned out to be the judgment which she subsequently acquired in the matrimonial Suit No. HC/8D/2002 before Uke, J.

The learned trial Judge Michael Edem J. heard the motion, and also the respective argument of Counsel. The parties then proceeded to adopt their respective addresses and the matter was adjourned to 21/12/2004 for judgment. The learned trial Judge on 4th February, 2005 delivered judgment in this case, he dismissed the Plaintiff’s case in its entirely and upheld the counter claim of the 2nd and 3rd Defendants, and also made orders to the effect that possession of the property be delivered to the 4th Defendant to which the 2nd Defendant had hitherto assigned the property in dispute.

Dissatisfied with this judgment, the Plaintiff/Appellant filed a Notice of appeal containing twelve (12) Grounds of Appeal to the court on 18/4/2005.

The following are the relevant briefs filed by the parties to this appeal:

1. Appellant’s brief of argument dated and filed on 6/6/2007.
2. 1st and 4th Respondents brief of argument dated 19/11/2007 and filed on 23/11/2007.
3. 2nd and 3rd Respondents brief of argument dated and filed on 10/1/2008.
4. Appellant’s Reply brief filed on 29/1/2008.
5. Notice of Additional Authorities of 2nd and 3rd Respondents dated 15/2/2009 and filed on 22/2/2008.

In his brief of argument, the Appellant sought leave of this Honourable Court to abandon ground 2 of the Grounds of Appeal ground 2 of the Grounds of Appeal is accordingly struck out.

Learned Counsel for the Appellant submits the following six (6) issues for determination:

1. Whether the judgment of the learned trial Judge having regard to the evidence before him is not unreasonable and unwarranted and whether the same is consistent with the evidence tendered.
2. Whether the learned trial Judge did not misapply and misconstrue the principles of judicial precedent when he went ahead to consider and determine the status of the building at 12 MCC Road, Calabar when the same issue had already been determined by a court of competent jurisdiction.
3. Whether it was in the power of the learned trial Judge to grant possession to the 4th Defendant when no such relief was claimed nor sought for by the 4th Defendant.
4. Whether the learned trial Judge was right in declaring the caveat filed by the Plaintiff invalid on the grounds only that the same was filed on a Saturday.
5. Whether on an evaluation of the evidence in this case and the judgment delivered the learned trial Judge did not exhibit bias against the Plaintiff.
6. Whether the learned trial Judge was right in his finding that from the earnings of Plaintiff she was incapable of contributing to the building of the property.

The learned Counsel for the 1st and 4th Respondent formulated the following issues for determination:

1. Whether having regards to the pleadings and evidence adduced by the parties, the learned trial Judge was right in dismissing the Plaintiff’s case.
2. Whether the learned trial Judge was right when he found and held that the 2nd and 3rd Defendants were purchasers for value without notice.
3. Whether the order granting possession to the 4th Defendant was proper.
4. Whether the judgment of the learned trial Judge was unreasonable and unwarranted having regards to the evidence adduced before the court.
5. Whether the learned trial Judge exhibited bias against the Plaintiff justifying the setting aside of the judgment.

The learned Counsel for the 2nd and 3rd Respondents formulated two issues for determination and adopted Appellant’s issue No. 5 as the third issue. The two issues are:

1. Whether the judgment of Uke, J. in HC/8D/2002 as it relates to the question of joint ownership of No. 12 MCC Road, Calabar was relevant to the proceedings before Edem J. in HC/176/2002 on the same question, and if the answer be in the negative, whether on the totality of evidence adduced before Edem, J., Edem, J., was justified in his finding and conclusion that No. 12 MCC Road, Calabar was the sole property of the 1st Respondent? Alternatively!

Whether the adverse findings and strictures regarding Appellant’s caveat Exhibit 7 by Edem J. were justified and if the answer be in the positive whether the further finding and conclusion that 2nd and 3rd Respondents were bona fide purchasers for value of the property at No. 12 MCC Road, Calabar without notice of Appellant’s equitable interest (assuming the property was jointly owned were equally justified? and

2. Whether having regard to the entire circumstances of this case and especially the unchallenged findings by Edem J. that Appellant wrested possession vi et ar mis from the 4th Respondent, Edem J. was justified in decreeing possession in favour of 4th Respondents having dismissed Appellant’s claims in their entirety and notwithstanding that 4th Respondent did not claim any such relief?

I have carefully read the record of appeal in this case and I am of the considered opinion that the appeal would be adequately disposed off if I adopt 2nd and 3rd Respondents alternate issue No. 1 as Issues Nos. 1 and 2 and the Appellant’s Issues Nos. 3 and 5 as Issues Nos. 3 and 4.

From the above, the following four issues are adopted for the determination of this appeal.

1. Whether the judgment of Uke, J. in Suit No. HC/8D/2002 as it relates to the question of joint ownership of No. 12 MCC Road, Calabar was relevant to the proceedings before Edem J. in HC/176/2002 on the same question, and if the answer be in the negative, whether on the totality of evidence adduced, Edem J. was justified in his finding and conclusion that No. 12 MCC Road, Calabar was the sole property of the 1st Respondent.
2. Whether the adverse findings and strictures respecting Appellant’s caveat, Exhibit 7 by Edem J. were justified and if the answer be in the positive whether the further finding and conclusion that 2nd and 3rd Respondents were bona fide purchasers for value of the property at No. 12 M.C.C Road, Calabar without notice of Appellant’s equitable interest was equally justified.
3. Whether it was in the power of the learned trial Judge to grant possession to the 4th Defendant when no such relief was claimed nor sought by the 4th Defendant.
4. Whether on an evaluation of the evidence in this case and the judgment delivered the learned trial Judge did not exhibit bias against the Plaintiff.

In this appeal I shall deal with the submissions of the Appellant on the one hand, and those of the 1st and 4th and the 2nd and 3rd Respondents together as Respondents on the other hand. This is because the submissions of the Respondents are similar and their interest the same.

Issue No. 1 questions the correctness of the decision of the learned trial Judge in holding the property at 12 MCC Road, Calabar to be solely owned by the 1st Defendant. This, in spite of an earlier judgment delivered in HC/8D/2002 wherein the High Court per Uke J. held regarding the said property” … shall remain the joint property of the petitioner and the Respondent and kept intact to serve the interest of the children of the marriage” It would be recalled that just before the adoption of the written addresses of the parties in the case before the lower court, the learned Counsel for the Plaintiff/Appellant sought to introduce as additional evidence the judgment in Suit No. HC/8D/2002 wherein the issue of ownership was pronounced upon. Learned Counsel for the Appellant submitted that it was wrong for the learned trial Judge to discountenance the holding of a competent court regarding the issue of joint ownership of the property. Appellant’s Counsel furthered that despite the acknowledgement by the learned trial Judge that “I shall take judicial notice of Exhibit “A” as a subsisting judgment of a court of competent jurisdiction”, the learned trial Judge held contrary to that earlier judgment, that the property at No. 12 MCC Road Calabar was not the joint property of the 1st Defendant and the Plaintiff for which reason the former was entitled to sell without any input of the latter.

Learned Counsel for the Appellant proceeded on this score and developed argument to the effect that the judgment in Suit No. HC/8D/2002 created an issue estoppel as regards the joint ownership of the property between the Appellant, and the 1st Respondent and submitted that in the absence of an appeal on the issue of joint ownership decided in Suit No. HC/8D/2002 the learned trial Judge indeed, the whole world was bound by the decision in HC/8D/2002 being a judgment in rem. Appellant’s Counsel relied amongst others on the cases of Ogbahon v. Registered Trustees CCC (2002) 1 NWLR (Pt. 749) 674 at 684, Okpawole v. Tunbi (2004) 11 NWLR (Pt. 884) 290, Ogbogu v. Ugwuegbu (2003 10 NWLR (Pt. 827) 189 at 193, Shugaba v. UBN (1999) 11 NWLR (Pt. 627) 459 Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53 at 66 and Onwuchekwa v. CCB (1999) 5 NWLR (Pt. 603) 410.

The Respondents, on this score submitted that the Judgment in Suit No. HC/8D/2002 was neither pleaded by the Plaintiff/Appellant nor admitted in evidence by the learned trial Judge in the present case. And that the judgment in Suit HC/8D/2002 having not been received as an exhibit in the matter and also having not been pleaded, served no useful purpose in the resolution of the matter before the court.

In dealing with the first aspect of issue NO.1, it is pertinent to observe that the learned Counsel for the Appellant seems to have dissipated so much energy on what seems to be a non-issue.

The position from the record of proceedings is that at the court below, learned Counsel for the Plaintiff (now Appellant) made an unsuccessful attempt by a motion on Notice to tender the judgment in Suit No. HC/8D/2002 as additional evidence in the proceedings that led to this appeal. Finally, rejecting the Plaintiff’s Appellant’s application to treat the judgment in Suit No. HC/8D?2002 as ‘additional evidence’ Edem J. at page 239 of the printed record held thus:

“This application is therefore misnomer. In grammatical parlance, an achronism. It be and is hereby set aside”.

The learned trial Judge continued, making passing remarks with the following obiter dictum:

“But that is not the last word. However, I shall take judicial notice of Exhibit ‘A’ as a subsisting judgment of a court of competent jurisdiction though persuasive. I regard and recognize it as an additional authority from the stable of the authorities of the Plaintiff in the presentation of her case.”

Taking of from this point, it is difficult to appreciate the complaint of the Appellant that the learned trial Judge discountenanced the judgment of a previous court on the subject matter of the joint ownership of the property in dispute, when in fact the said judgment was not put in evidence and was not one of the relevant materials to be considered by Edem J. in the determination of the case before him. What would have seem proper in this case that the Appellant failed to do was to appeal on the failure of the learned trial Judge not to admit the judgment of Uke, J. in Suit No. HC/8D/2002 as ‘additional evidence’ in this case. Unfortunately, I carefully perused the (12) twelve grounds of appeal filed by the Appellant and could not discover any ground based on the failure of the learned trial Judge to admit the judgment in Suit No. HC/8D/2002 as evidence in the case before him.

Perhaps out of abundance of caution and still on this point, the Respondents submitted further that the Plaintiff/Appellant did not plead and could not have pleaded the judgment in Suit No. HC/8D/2002 which came into being on 29th September, 2004, after the close of the parties case on 2nd August, 2004.

The consistent reaction of the Appellant to the above assertions by the Respondents is that the rather scanty and limited mention of Suit No, HC/8D/2002 in paragraph 12 of the Plaintiffs/Appellant’s Amended statement of claim constitute sufficient pleading to ground the plea of issue estoppel in favour of the Plaintiff/Appellant. As would however be seen, paragraph 12 of the Plaintiff’s Amended statement of claim in form and content merely reported to the court in Suit No. HC/176/2002, that the 1st Defendant had gone ahead in the pendency of the suit on the disputed property to file a divorce suit in the same High Court as against the Plaintiff/Appellant. It says:

12. Several months after processes in this suit have been exchanged between the Plaintiff and the 1st Defendant precisely on the 25th September 2002; the 1st Defendant rushed and filed a petition for divorce No. HC/8D/2002 in this Honourable Court to jeopardize this present suit.”

The judgment which the Plaintiff/Appellant sought to plead in Suit No. HC/8D/2002 arose from the cross petition of the Plaintiff/Appellant in that suit to the petition of the 1st Defendant in Suit No. HC/8D/2002. Paragraph 12 of the Plaintiffs/Appellant’s amended statement of claim did not even make mention or plead the cross-petition of the Plaintiff/Appellant in suit No. HC/8D/2002, not to talk of the judgment arising from the cross-petition. In those circumstances, the question of specifically pleading that the judgment arising from the cross-petition raises issue estoppel on the question of joint ownership of the property in dispute became remote to the Plaintiffs pleadings itself. To the parties, it is undoubtedly “a Trojan waiting in ambush for unsuspecting opponents”. And to the learned trial Judge, clearly an irrelevant piece of pleading, too low in the ladder of relevancy to be admitted as a plea of issue estoppel.

The reasons for this as pointed out by the Respondents, more especially the 1st and 4th Respondents are, first, that the primary aims of pleadings are to ascertain clearly, the issues in dispute between the parties and to give fair notice of the case to be met by the opposing party. Thus a pleading must constitute a brief but comprehensive summary of the facts relied upon by the pleader, which also is to constitute a permanent record of the questions raised in the action for the decision of the court. See e.g. Iguh JSC in Olatunji v. Adisa (1995) 2 SCNJ 90.

Secondly, the Plaintiff/Appellant in this case has breached yet another rule of civil procedure, which is that estoppel being a special plea must be specifically pleaded. The general principle of law is that estoppel must be pleaded otherwise it cannot be raised. A party who intends to rely on the rule of estoppel at the trial must plead the rule specifically. The material facts and matters constituting the estoppel must be stated in such a manner to show that the party pleading relies upon same as a defence or in answer.

See Chukwuogor V. A-G Cross River State (1998) 1 NWLR (Pt. 534) 375 at 405. Clay Ind. (Nig) Ltd. V. Aina (1997) 8 NWLR (Pt. 516) 206 at 229, BCCJ V. D. Stephens Ind. Ltd. (1992) 3 NWLR (Pt. 232) 772, Chiwendu V. Mbamali U Anor. (1980) SC 31.

From the aforegoing, I hold in terms of the 1st leg of Issue No. 1 that the judgment of Uke, J. in Suit No. HC/8D/2002 was indeed irrelevant to the proceedings before Michael Edem J. in Suit No. HC/8D/2002 that is the subject matter of this appeal. And that the learned trial Judge of the lower court did not misapply and misconstrue the principles at judicial procedure when he went ahead to consider and determine the status of the building at 12 MCC Road, Calabar when the same issue had already been determined by a court of competent jurisdiction.

The attempt by the learned Counsel to the Appellant in his Reply brief before this court to argue that the judgment in Suit No. HC/8D/2002 is relevant otherwise than by the rule of estoppel under Section 50 of the Evidence Act, cannot also avail him in this case. The reason is that the entire law of evidence is governed in the main by the rules of relevant and admissibility. It follows that, that which is not pleaded is not relevant and that which is not relevant is not admissible. The pleading of the parties in a case, being the foundation of the case have decisive effect on whether or not a plea of estoppel will be applicable to deciding the rights of the parties submitted to adjudication in the particular case.

The second leg of Issue No. 1 in this appeal which was particularly dealt with under a joint treatment of Appellants Issues Nos. 1 and 6 is whether on the totality of the evidence adduced, the learned trial Judge was justified in the finding and conclusion that No, 12 MCC Road, Calabar was the sole property of the 1st Defendant. In this respect, the learned Counsel for the Appellant referred to the evidence of the Plaintiff of her agreement with her husband that he would collect her salaries as part of her contribution to the building and also that whenever the 1st Defendant was in town during the period of the building project, he and his then young family usually stayed with his father-in-law (Mr. Edim).

Learned Counsel for the Appellant submitted that from the evidence let at the trial of this action, there was significant contribution in cash and in kind by the Plaintiff to have entitled her to a joint ownership of the property. And that there is neither factual nor any kind of justification for the rationalization that a wife earning N200.00 cannot together with her provost husband earning in ‘thousands’ contribute her quota to the building of a house for both of them. The fact of a wife “leaning on the financial shoulders” of her husband or vice versa does not at all detract from the concept of Joint ownership of their building.

On this score, the Respondents contend that the evidence of the 1st Defendant as to the sole acquisition of the land in dispute was uncontradicted. That the title documents have only the name of the 1st Respondent. And that the Plaintiff/Appellant offered no iota of credible evidence as to any direct financial contribution to the building of the property in dispute. The assertion of the Plaintiff/Appellant were said not to be supported by any proof whatsoever. Even the receipt, Exhibit 3, that she tendered, to show evidence of her father’s contribution, was found by the court to bear the name of the 1st Defendant and not that of the Plaintiff or her father Elder Edim which was the impression given when same was tendered by her. In those circumstances, said the Respondents, the learned trial Judge was right to have considered the Plaintiff’s bare assertion as flimsy evidence as against the 1st Defendant’s evidence in which he testified that he built the house entirely by himself and did not need the Plaintiff’s contribution for whatever purpose.

At pages 240 – 246 of the Record, the learned trial Judge reviewed the evidence of the parties on the question of Joint ownership, noted the uncontradicted evidence of the 1st Defendant as to the sole ownership of the land, and after comparing the evidence of the Plaintiff and the 1st Defendant on the assertion by the Plaintiff that the 1st Defendant collected her salaries, the trial Judge found at page 244 as follows:

“The 1st Defendant having denied signing and collecting the salaries of the Plaintiff, the ball returned back to her court to prove what she has asserted, salary being a very personal right and entitlement of a beneficiary cannot be lightly tampered with at the source or be dispossessed of a beneficiary without a clear written authority. It is doubtful if oral authority can suffice. The Plaintiff has not presented and tendered in evidence the authority which she said she gave to the 1st Defendant. The law is that he who asserts must prove as he bears the burden of establishing the claim and must fail if he does not succeed on establishing what he has undertaken to do. I am not just stating but re-stating the law in Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) p. 1 at 5 held 25. Bata Ltd. V. George (1985) 3 NWLR (Pt. 11) p. 129 H.5.”

From the evidence on record, I have no doubt that the learned trial Judge was right not to have inferred joint ownership of the property in issue in favour of the Plaintiff/Appellant. The law is that a direct financial contribution to the purchase price of the matrimonial home or to the repayment of the mortgage installments in respect thereof, was sacrosanct before joint interest could be inferred.

See, Gissing V. Gissing (1970) 2 ALL E. R. 780. Rimmer V. Rimmer (1952) 2 ALL E. R. 803 at 869.

This position of the law was upheld by the Supreme Court in the case of Adaku Amadi V. Edward N. Nwosu (1992) 6 SCNJ 59 where Kutigi JSC (as he then was) instructively observed in the leading judgment as follows:

“… when she came to testify in court, she ought to have explained the quality and quantify of her contribution, she also ought to have given details and particulars of the contribution which would have enabled the court to decide whether or not she owned the property with PW1 (her husband).” (underlining emphasis supplied).

From the aforegoing, I hold in respect of the 2nd leg of issue NO.1 that the learned trial Judge was justified in the finding and conclusion that No. 12 MCC Road, Calabar was the sole property of the 1st Respondent.

Issue No. 1 is resolved as against the Appellant.

Issue No. 2 is also in two components, the first is the justification or otherwise of the adverse findings and strictures respecting Appellant’s caveat, Exhibit 7 and relatedly the second is on the finding and conclusion that 2nd and 3rd Respondents were bona fide purchasers for value of the property at No. 12 MCC Road, Calabar.

The first leg of Issue NO.2 adequately covers Appellant’s Issue No, 4 as to whether the learned trial Judge was right in declaring the caveat filed by the Plaintiff invalid on the grounds only that the same was filed on a Saturday.

In relation to the first leg of Issue NO.2, the Appellant narrowed down her complaint and point of disagreement with the finding of the learned trial Judge that the Plaintiff/Appellant’s caveat could not have been entered on a Saturday and also for the fact that the court took judicial notice that Saturdays are work free days. Learned Counsel for the Appellant relied on the Election Appeal Judgment of the Court of Appeal in Iyirhiaro V. Usoh (1999) 4 NWLR (Pt. 597) 44 (per Salami JCA) to the effect that “Saturday is not a public holiday and neither does the Interpretation Act nor Decree No. 36 consider it as such.”

Appellant’s Counsel furthered, relying on the provision of Section 150 of the Evidence Act and the cases of Sanusi V. Adebiyi (1997) 11 NWLR (Pt. 530) 565 at 568, and Okuwobi V. Jimoh Ishola (1973) ANLR 233, that, there is a presumption of regularity of official acts when they have been shown to be done in a manner substantially regular Appellant’s Counsel urged this court to hold that the caveat entered by the Plaintiff/Appellant on 15th July 2002, was valid and that if the trial Judge had given weight to the caveat, he would have come to the inevitable conclusion that the purchase of the property, if at all was fraudulent and therefore invalid, the purchase having been fixed with notice.

In reaction to the 1st leg of Issue NO.2, the Respondents were quick to point out that the rejection of the Plaintiff/Appellant’s caveat Exhibit 7 was not based solely on the fact that the caveat would not have been filed on a Saturday, Saturday being a work free day, as the learned Counsel for the Appellant would want us to believe. But, more on the inconsistent and unreliable testimony of the Plaintiff/Appellant herself on Exhibit 7 and the date of filing it.

Learned Counsel for the Respondents pointed out first that Appellant’s case was that she did not file her caveat on a Saturday and that she is not only bound by that case, but cannot set up a new case on Appeal. On this, the Respondents relied on the Supreme Court decision in Ajide v. Kelani (1985) 2 NSCC 1298 at 1316 per Oputa JSC.

Respondents’ Counsel furthered that Appellant had admitted in the course of her cross-examination that civil servants do not go to work on Saturdays so; the Appellant denied that she delivered the caveat to the Registrar of Deeds on a Saturday. But, as it turned out, 15th of July 2000 when Appellant purported to deliver the caveat was a Saturday.

Respondents Counsel pointed out other debilitating defects established or raised against Exhibit 7. For example, that the court compared the caveat filed by the 2nd Defendant at the same registry Exhibit 19 and found the absence of usual official endorsement/stamp of receipt, and no note instructing action on Exhibit 7.

Respondents’ Counsel submitted that the learned trial Judge found that the registration of Exhibit 7 was fake and not authentic. And that, it is only when there is no contrary evidence of regularity against official acts, that things may be presumed to have been rightly and properly done.

Still on Exhibit 7, Respondents submitted that the case of Iyihiaro v. Usoh (supra) relied on by the learned Counsel for the Appellant is not applicable in the instant case. Iyirhiaro V. Usoh’s case, said Respondents was an electoral matter under which proceedings are said to be sui generis or of a special, exceptional or peculiar nature and that in the computation of time within which the Appellants therein were to file their election petition, two legislations were relevant that is the Interpretation Act, Cap 192 LFN 1990 and the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. In the relevant legislations considered in the Usoh case, Saturdays were expressly not holidays. But that according to Respondents is not authority that Saturdays are never public holidays.

Respondents’ Counsel submitted further relying on the case of Adisa v. Oyinwola (2000) FWLR (Pt. 8) 1349 at 1377 that under the Public Holidays Act “…a Saturday, Sunday or Public Holiday …” are generally work free days and that the learned trial Judge pursuant to Section 74(i) (g) of the Evidence Act was entitled to take judicial notice of Saturday as a work free day.

In deciding the first leg of Issue No.2, it is pertinent to observe that the learned trial Judge painstakingly reviewed the evidence offered by the parties in relation to Exhibit 7 and that his failure to attach weight to the Plaintiff/Appellant’s caveat – Exhibit 7 had more to do with the authenticity of the document and the credibility of the testimony of the Plaintiff/Appellant herself in relation to the caveat Exhibit 7.

Starting from pages 250 of the Record, the learned trial Judge found as follows in relation the Plaintiff/Appellant’s caveat Exhibit 7.

“I have found as a fact that 15th July, 2000 when the Plaintiff purportedly lodged the caveat was a Saturday. And I take judicial notice of the fact that Saturdays are work-free days in the State. This much the Plaintiff conceded in cross examination. That also in work-free day’s offices is not open to the public for official transaction. The question of lodgment of caveats in the Lands Registry is a public and not a private business.”

The learned trial Judge continued, pages 250 – 252:

“Aside from Exhibit 7 being said to be filed on an unholy day of Saturday the Defendants have in their written addresses thoroughly discredited it in other materials particulars… for some reasons best known to the Plaintiff she has offered no answer to this rubbishing indictment of her Exhibit 7 which ought to be her tower of strength in the determination of issue number three posed and raised by her. I have found as a fact that the indictment is meritoriously established. Whereof in consequence I accede to the submission of the 1st and 4th Defendant that:

“in the circumstances, the court is further urged to attach no probative value or weight whatever on Exhibit 7. Exhibit 7 is fake and worthless.”

Highlighting the contradictions posed between the Plaintiff’s caveat Exhibit 7 and her Exhibit 11, that is the affidavit by the Plaintiff in support of her application for an order of interlocutory injunction filed on 15th April, 2002, the learned trial Judge said inter alia between pages 252 and 254 of the printed Record.

“Again using paragraphs 11 and 13 of Exhibit 11, vis-a-vis the testimony of the Plaintiff, a revulsive dent is equally cast on the Plaintiff’s caveat, Exhibit 7 …. Now the last word, thus from all ramifications of these painstaking considered findings, I hold a considered opinion that Exhibit 7 is a hocus-pocus magic completely bereft of any legal forensics not even worth the value of the ink used even doting any ‘I’ therein.”

Starting from the review of the evidence surrounding Exhibit 7 by the learned trial Judge, it must be said that in his duty to evaluate evidence, a trial Judge, as the Judge of facts dominates the province of the assessment of probative value to particular pieces of evidence tendered before him and he is perfectly entitled in the process to give weight to one piece of evidence and attach no weight to another.

In Mogaji v. Odofin (1978) 3 SC 91 at 93 Fatayi-Williams JSC (as he then was) speaking for the Supreme Court said:

“Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it, if that law supports it bearing in mind the cause of action, he will then find for the Plaintiff. If not, the Plaintiff’s claim will be dismissed.”

See also, Owoade v. Omitola (1980) 2 NWLR (Pt. 77) 413.

The above would have sufficed for the determination of the 1st leg of Issue NO.2. But, perhaps in further answer to the Appellant the presumption of regularity under the provision of Section 150 (1) of the Evidence Act Cap 112 LFN 1990 could only be invoked “where the official act is shown to have been done in a manner substantially regular” Where as in the instant case the authenticity of the caveat supposedly lodged in the Land Registry has been credibly disputed the burden of proof shifts on the party intending to rely on same to show that the caveat is not fake and that it was obtained in a manner substantially regular.

In other words, the presumption of regularity can be rebutted by challenging the accuracy of the produced record. Oral as well as affidavit evidence on oath can be filed or produced to show the contrary.

H.N.D. Awoyegbe & Ors V. Chief J. E. Ogbeide (1988) 1 NWLR (Pt. 73) 695 at 710, Horst Sommor & Ors V. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548 at 558. Akibu V. Oduntan (1991) 2 NWLR (Pt. 171) 1 at 13, Integrated Rubber Products Nigeria Ltd & Ors V. Irabor Oviawe (1995) 5 NWLR (Pt. 243) 572 at 585 – 586.

Finally, on this score, the case of Iyirhiaro V. Usoh (supra) relied on by the Appellant to demonstrate that Saturday is not a work free day was based on an election petition the facts and circumstances of which are different from the situation in the instant case. It is indeed perfectly and legally justifiable for the learned trial Judge to take judicial notice as he did that “Saturdays are work free days in the State.” See, Anie & 2 Ors V. Chief Ijumma Uzorka (1993) 9 SCNJ 223.

From the above, I hold in terms of the 1st leg of Issue No.2 that the adverse findings and strictures respecting Appellant’s caveat Exhibit 7 were justified. The 2nd leg of Issue No. 2 is whether the further finding that the 2nd and 3rd Respondents were bona fide purchasers was equally justified.

Learned Counsel for the Appellant argued this leg under his Issue No, 3 and contends that the entire transaction lending to the purported sale to the 2nd and 3rd Defendants was bad for more reasons that one. That, apart from the failure to seek the Plaintiffs consents to the transaction, the nature, speed and unjustified determination to quickly conclude the sale while the Plaintiff was on admission in the hospital for a major surgery amounted to a reckless display of spite against the Plaintiff and a dishonest and fraudulent attempt to overreach. That the Defendants failed to show diligence in investigating the nature and status of the ownership of the property. Appellant’s Counsel however, noted that there was evidence that the 1st Defendant/Respondent in order to protect the property did in fact file a caveat in the Lands Registry.

Learned Counsel for the Appellant referred to the cases of Ugo V. Obiekwe (1989) 1 NWLR (Pt. 99) 566, and Auta V. Ibe (2003) 13 NWLR (Pt. 837) 247 on the principle of “nemo dat quod non habet” and submitted that having not acquired a valid title from the 1st Defendant/Respondent, the 2nd and 3rd Defendant/Respondents had no property to transfer to the 4th Respondent. In reaction to this, the Respondents submitted that this court should not reverse the finding of fact that the Appellant’s caveat Exhibit 7 is a worthless and fake document. And also, that the Plaintiff failed to establish that the 2nd Respondent purchased the property with notice of the caveat. Having carefully gone through the record of proceedings, it is clear that the findings of the learned trial Judge on Exhibit 7 were neither frivolous nor perverse. Indeed, the learned trial Judge’s findings that Exhibit 7 was a worthless and fake document were justified from the evidence on record. And having so found there is nothing else that the Appellant could cling upon to justify notice of her equitable interest (if any) in the property at No. 12 MCC Road, Calabar. I hold in agreement with the learned trial Judge that the 2nd and 3rd Respondents purchased the property in issue bona fide without any notice of the Appellant’s caveat on the property.

Issue No.2 is also resolved as against the Appellant.

Issue No. 3 deals with competence of the learned trial Judge to grant possession to the 4th Respondent. Learned Counsel for the Appellant also proffered arguments on this issue under his own Issue No.3.

On this, learned Counsel for the Appellant submitted that there could be no legal justification in granting a relief to a party who did not seek such a relief or make such a claim.

In the first place, said Appellant’s Counsel, the 1st, 2nd and 3rd Defendants were originally the only Defendants in this suit. The 4th Defendant was only added subsequently. And that on becoming a party to this suit, the 4th Defendant, as opposed to filing a joint defence with the artier Defendants, chose to file its own statement of defence. It was also represented by a separate Counsel from those of the 2nd and 3rd Defendants. In the course of drawing up the statement of defence for the 4th Defendant, there was no claim for possession by the 4th Defendant. In those circumstances, said the Appellant, it was not only wrong but grossly improper on the part of the learned trial Judge to grant possession to the 4th Defendant.

Learned Counsel for the Appellant relied on the cases of Ndulwe V. Ibezim (2002) 12 NWLR (Pt. 780) 139 at 149, Ekpenyong V. Nyong (1975) 2 SC 71, Olurotimi V. Ige (1993) 8 NWLR (Pt. 311) 257, IMNL V. Nwachukwu (2004) 13 NWLR (Pt. 891) 543 and submitted that a trial court will not constitute itself into a father Christmas and grant a party a relief which it did not ask for.

He furthered, that a party in court must articulate his position in its pleadings and expressly makes known the reliefs which it seeks from the court. And must not rely on the weakness of the adversary’s case but must bring cogent evidence to show its entitlement to possession. On this, Appellant’s Counsel relied on the cases of Archibong V. Ita (2004) 2 NWLR (Pt. 858) 590 at 595, Elias V. Disu (1962) 1 SCNLR 361, University Press Ltd V. I. K. Martins (Nig.) Ltd. (2000) 4 NWLR (Pt. 654) 584.

Finally, on this score, Appellant’s Counsel urged this court to hold that the learned trial Judge was wrong to grant possession to the 4th Defendant when it neither asked for such possession nor led evidence entitling it to such grant.

Respondents on the other hand concede that it is the general position of the law that a court has no power to grant a party a relief not claimed but that the granting of a consequential order to the 4th Defendant/Respondent in this case presents an exception to the general rule.

Respondents submitted that the learned trial Judge having already pronounced that the Plaintiff had no legal title whatsoever in the said property, and also having proceeded to uphold the declaration sought in the counter claim which effectively validated and confirms that title had passed to the 2nd Defendant, was justified on the Order of possession to the 4th Defendant/Respondent, the present owner which has possession prior to the wrongful invasion by the Plaintiff.

Respondents Counsel furthered, in law, when title is in a party, one of its known and recognizable incidences is possession or right to same. There was evidence that the 2nd Defendant had passed the title and possession to the 4th Defendant who was wrongfully removed by the Plaintiff/Appellant. Respondents Counsel quoted the learned trial Judge at page 258 of the Record thus:

“Wherein I hold that the property was validly transferred to the 4th Defendant by the 2nd and 3rd Defendants and the 4th Defendant was duly put in possession.”

Learned Counsel for the Respondents submitted further that the order of possession granted the 4th Defendant/Respondent in the circumstance was not only necessary but was consequential. Even if the 4th Defendant/Respondent did not ask for it, the court still had jurisdiction to order it. The said order, said Counsel, indeed gave effect to the judgment and this has been the position of the law from a long line of authorities.

On this point, Respondents Counsel referred to the provisions of Order 47 Rule (1) of the High Court (Civil Procedure) Rules of Cross River State and also to the cases of Ilona V. Idakwo (2003) FWLR (Pt. 171) 1715, Agu V. Odofin (1992) 3 SCNJ 161, Akinbola V. Plisson Fisko Nigeria limited (1991) 1 NWLR (Pt. 167) 270. Dantsohu V. Mohammed (2003) FWLR (Pt. 150) 1717.

Finally, on this point Respondents Counsel added that public policy also has a role to play in justifying the position of the court in making consequential orders. This is to ensure that multiplicity of litigation is reduced and that litigation is effectively brought to an end. Still on Issue NO.3, the learned Counsel for the Appellant rejoined in his Reply brief and relied on the cases of A-G, Federation V. AIC limited (2000) 10 NWLR (Pt. 675) 293 and Afrotech Tech. Services V. MIA & Sons (2000) 15 NWLR (Pt. 692) 730 to restate that:

“A consequential Order is not merely incidental as to a decision but one necessarily flowing directly and naturally and inevitably consequent upon it. It must be giving effect to the judgment already given, not by granting a fresh or unclaimed or unproven relief. A proper consequential order need not be claimed but a substantive order must be claimed and sustained from the facts before the court.”

In order to appreciate the submissions of Counsel on Issue NO.3, it is necessary to journey back to the pleadings of the parties, more especially the counter claim of the 2nd and 3rd Defendants/Respondents before the lower court.

At page 55 of the printed Record, the 2nd and 3rd Defendants/Respondents jointly counter claimed as follows:

(i) An Order of declaration that the assignment of the property at No. 12 MCC Road, Calabar by the 1st Defendant to the 2nd Defendant is lawful and valid in law.

(ii) An Order of declaration that the 2nd Defendant is a purchaser for value without notice of encumbrances of the property situate at No. 12 MCC Road, Calabar.

(iii) An Order of mandatory injunction compelling the Plaintiff to surrender possession of the property at No. 12 MCC Road, Calabar to the Defendants forthwith.

(iv) An Order of mandatory injunction compelling the Plaintiff to pay to the Defendants mesne profit at the rate of N10,000.00 per day from the date of judgment until possession is given up.

At pages 259 – 260 of the Record, the learned trial Judge concluded his judgment by holding that the case of the Plaintiff/Appellant failed as against the Defendants and noted that the Plaintiff/Appellant indeed did not join the 4th Defendant/Appellant as a party in her Amended Statement of Claim. The learned trial Judge then proceeded to grant all the items in the counter claim of the 2nd and 3rd Defendants/respondents except number 4.

He ordered inter alia:

“3 Issuing under my seal and hand this day is an order of mandatory injunction compelling the Plaintiff to surrender possession of the property at No. 12 MCC Road, Calabar to the Defendants forthwith which by the tenor of the defence of the 2nd and 3rd Defendants particularly paragraph 27 of their Statement of defence and the con of this case, the said Defendants therein commonsensically mean the 4th Defendant and not all of them.”

It would be seen here that the order of delivery of possession by the learned trial Judge enures in favour of the 2nd and 3rd Defendants to suit the prayer for delivery of possession as contained in their counter claim. The extension of the consequence of the order to the 4th Defendant was truly to give effect to the order granted to the 2nd and 3rd Defendants.

In my considered opinion, the learned trial Judge was perfectly entitled to grant the Order of possession as claimed to the 2nd and 3rd Defendants/Respondents and apply the consequences or effect of the order to the benefit or advantage of the 4th Defendant having regard to the evidence before him.

A true test of the distinction between a claimed order and a consequential order in the circumstances of this case is to ask if the learned trial Judge had stopped with the words “possession of the property at No. 12 MCC Road, Calabar to the Defendant forthwith.” Would the Appellant still have a right of complaint? My answer to the above question is in the negative. This is because, the order truly enures as per the counter claim of the 2nd and 3rd Defendants/Respondents. Incidentally, it is that same negative answer that supplies solution to the fact that the application of the order in the con of the evidence adduced is nothing but a consequential order.

In other words, from the phraseology employed by the learned trial Judge a marked distinction could be seen from the order itself and the consequence, effect or application of the order. From this perspective, it would be seen that even the decision in A-G. Federation V. AIC Limited (supra) relied upon by the Appellant is in favour of the Respondents. This is because is “one necessarily flowing directly, and naturally and inevitably consequent upon (the decision). It must be given effect to the judgment already given, not by granting a fresh or unclaimed or unproven relief…”

The provision of Order 47 Rule (1) of the High Court (Civil Procedure) Rules of Cross River State provides a guide in matters of this nature. It reads thus:

“Subject to particular rules, the court may in all causes and matters make any order which it consider necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”

The Supreme Court of Nigeria spoke in similar vein in the case of Ilona V. ldakwo (supra) at 1715:

“Where a person had not specifically asked for a relief from a trial court, a trial court had power to grant such relief as a consequential relief. A consequential order must be one giving effect to the judgment, which it follows … as in other equitable remedy the court can order an injunction even where it is not specifically claimed, but appears incidentally necessary to protect established rights.”

Much earlier on, over a decade ago, Olatawura JSC made it clear in the case of The Registered Trustees of the Apostolic Church V. Mrs. Emmanuela I. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 531 that a consequential order must not of necessity be based on the reliefs claimed:

“… It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis of an order made by the court must be looked for from the evidence before the court. It is trite law that a court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counter claim. An order made in favour of a Defendant even where, he has not counter claimed must flow from the evidence and more so if the justice of the case demands …”

In the instant case, having found title for the 2nd and 3rd Respondents, through the 1st respondent and having further found that the 2nd and 3rd Respondents had legally put the 4th Respondent into possession of the disputed property the order of delivery granted to the 2nd and 3rd Respondents was justifiably applied in favour of the 4th Respondent. Issue NO.3 is resolved as against the Appellant.

The fourth Issue in this appeal is whether the learned trial Judge exhibited bias against the Plaintiff. This issue was dealt by the Appellant under her issue No.5.

The Appellant alleged bias in Issue No.4. In particular the learned Counsel for the Appellant submitted that by placing reliance on the earlier judgment in Suit No. HC/8D/2002 to hold that the marriage had stood dissolved and the Plaintiff had ceased to be the 1st Defendant’s wife and refusing to rely on the same judgment to uphold the decision therein that the property in question was jointly owned and as such the consent of the Plaintiff was imperative before sale could be carried out, the learned trial Judge exhibited bias and a considerable level of apathy towards the case of the Plaintiff.

Appellant’s Counsel submitted further that the position of the learned trial Judge that since the Plaintiff had sold the matrimonial bed, then every thing was lost, was illogical, untenable and presented an unbalanced appreciation of the facts led before the trial Judge. And, therefore, an indication of bias. Appellant’s Counsel referred to the cases of Omoniyi V. Sodeinde (2002) 13 NWLR (Pt. 53) at 57, Oyedeji V. Akinyede (2002) 3 NWLR (Pt. 755) 586 and urged that this issue be resolved in favour of the Appellants.

In response, the learned Counsel for the Respondents submitted that the trial Judge was not bound to accede to the application brought before him by the Plaintiff/Appellant as a matter of cause, and so long as he has exercised that jurisdiction fairly and heard the parties coming to his considered position on the matter, he cannot be indicted for bias. Further, that there was more than sufficient evidence on which the learned trial Judge relied on in holding that the Plaintiff sold the matrimonial bed contrary to Appellant’s submission and that in the circumstance, the allegation of bias is clearly unjustified and baseless.

It seems to me; with respect to the learned Counsel for the Appellant that allegation of bias to be taken seriously must be extrinsic to the adjudicatory process. The allegation of bias in this case relates merely to the exercise of judicial powers by the learned trial Judge without any evidence of facts or circumstances that suggest that the learned trial Judge did in fact favour one side unfairly.

The test of real likelihood of bias is that there must be circumstances from which a reasonable man would think of likely or probable that the decision maker would or did in fact favour one side unfairly. See, Alhaji Saba M. Salch V. Alhaji Lawan Monguro & 7 Ors (2003) 1 NWLR (Pt. 801) pp 249 – 250. Indeed, bias on the part of the court is a very serious thing and is capable of affecting or destroying the public confidence in the judiciary. Consequently, as was noted in the case of Ogemdengbe V. Esam (2002) FMLR (Pt, 90) 1400 “the mere vague suspicion of whimsical, capricious and unreasonable people should not be made a standard to constitute proof of such serious complaint.”

In the instant case, perhaps unfortunately, the Appellant’s allegation of bias boiled down to “The trial Judge is biased because I lost my case before him.”

An allegation of this sort is neither fair to the judicial office nor to the judicial system, not even to the members of the public who are the ultimate consumers or beneficiaries of the justice delivery system.

Indeed, I truly believe that the constitutional privilege of challenging the decision of a trial court by an appeal should not, in the absence of cogent and positive evidence, be employed as an occasion for casting aspersion on the integrity of the judicial officer, all in a desperate attempt at securing a reversal of his judgment.

The Appellant in this case has not supplied any relevant facts to justify the allegation of bias against the learned trial Judge.

Issue No, 4 is resolved as against the Appellant.

Having resolved the four (4) issues in this appeal against the Appellant, I find no merit in the appeal. The appeal is dismissed.

There shall be no order as to costs.

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Other Citations: (2008)LCN/3052(CA)