Agnes Emecheta V. A.u. Ogueri & Anor. (1997)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
The appellant as plaintiff took out this action against the defendants (now respondents) jointly and severally, at the Aba High Court. The claims of the plaintiff as contained in paragraph 18 of the Statement of Claim were as follows:-
“(a) A declaration that the purported sale of the property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant to the 1st defendant by public auction is null and void.
(b) An injunction restraining the 1st defendant and/or his agents from ejecting the plaintiff from her residence at No. 26 Okigwe Road, Aba part of the property registered as 84/84/626.”
Pleadings were ordered, filed and duly exchanged by the parties to the suit. At the hearing, the plaintiff who gave evidence, tendered some documents and called one witness. The defendants, also, gave evidence at the hearing and tendered some documents. After hearing the parties and their counsel, Jonah Johnson J., in a reserved judgment delivered on 22nd October, 1991 dismissed the suit with costs. Dissatisfied with the judgment, the Plaintiff, now Appellant, has appealed to this Court. The Further amended Notice of Appeal contains eight grounds. They read without their particulars as follows:-
“GROUND ONE ERROR IN LAW
The learned trial Judge erred in law when he held that the Auctioneer’s Notice as prescribed by Auctioneer’s Law was neither necessary nor a condition precedent to the sale of a Mortgaged Property and thus held that the sale to the 1st defendant of property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant without adequate notice by the Auctioneer was a valid sale.
GROUND TWO ERROR IN LAW
The learned trial Judge erred in law when he concluded that Exhibit ‘C’ was of no legal significance and thus could not confer locus standi on the plaintiff when the legal significance or authenticity of Exhibit “C’ was never in issue before the court as per the pleadings filed by the parties.
GROUND THREE MISDIRECTION
The learned trial judge misdirected himself as to the facts of this case when he held that he was satisfied following evidence before him that the Plaintiff/Appellant withdrew from the 2nd defendant the sum of N71,559.00 being balance of the proceeds of sale of the mortgaged property, when no such evidence was led by any of the parties before the court.
GROUND FOUR ERROR IN LAW
The learned trial Judge erred in law when he held that the property Plot 232 Fuel Plantation Layout G.R.A. Aba i.e. property No. 84/84/626 had not been partitioned and thus was still intact and in existence in its original form.
GROUND FIVE ERROR IN LAW
The learned trial Judge erred in law when he held that the plaintiff had no locus standi to prosecute the case.
GROUND SIX MISDIRECTION
The learned trial Judge misdirected himself, which misdirection led to a miscarriage of justice when he held:
“Her denial that she collected the money from the sale had been punctured by the fact that there is no evidence before the court that the N71,559.00 left by the 2nd defendant is at present lodged with any bank to the credit of the estate of the deceased.”
GROUND SEVEN MISDIRECTION
The learned trial Judge misdirected himself, which misdirection occasioned a miscarriage of justice when he said: “The evidence before the court showed that the WILL, Exhibit ‘C’ had not been admitted to probate at the time of this action.”
GROUND EIGHT
Judgment is against weight of evidence properly admitted at the trial”
From the grounds of appeal the Appellant raised six issues arising for determination in his appeal. They read:-
“(a) Whether a sale by auction conducted without compliance with the required notices under Auctioneer’s Law is valid.
(b) Whether the proof and admission to probate of the Will, Exhibit ‘C’ was an issue before the court for adjudication. Even if yes, was the invalidation of the Will proper?
(c) Whether the Appellant lacks locus standi to prosecute the case.
(d) Whether the Respondents proved the alleged appellant’s withdrawal of the sum of N71,559.00 from the 2nd Respondent.
(e) Whether the judgment of court is supported by evidence before it.
(f) Whether Plot 232 Fuel Plantation Layout, G.R.A. Aba registered as property No. 84/84/626 was not partitioned”
The first respondent identified four issues for determination in the appeal. They read as follows:
“(i) Was the sale of the property in dispute by the second defendant/respondent valid?
(ii) Did the plaintiff/appellant have the capacity to maintain the suit?
(iii) Is the Plaintiff/Appellant estopped by her own conduct from challenging the sale of the property in dispute?
(iv) Is the judgment of the court supported by the evidence before it?”
The second respondent raised five issues for determination. They read as follows:-
“(a) Was non-compliance with the provisions of the Auctioneers Law, an issue on the pleadings joined by the parties and if so what is the effect of such non-compliance?
(b) Was the learned trial Judge correct in the conclusion he arrived at that Exhibit C was insufficient to confer locus standi on the appellant in the absence of legally admissible proof that it had been admitted to probate?
(c) Did the conclusion of the learned trial Judge that the plaintiff withdrew the balance of the proceeds of the auction sale amount to a misdirection which has occasioned a miscarriage of justice?
(d) Was the Lower Court correct in its conclusion that the property in dispute had not been partitioned?
(e) Is the judgment of the Lower Court consistent with the weight of evidence?”
It seems to me that the four issues formulated at page 3 of the first respondent’s brief are more succinct and subsume and encompass all the grounds of appeal in this case. I shall therefore treat this appeal in accordance with the issues raised by the first respondent.
Issue No. (1) in the first Respondent’s amended brief is one and the same thing as issue No. (a) or 3a in the Appellant’s amended brief and issue No. (a) in the second Respondent’s amended brief of argument.
For the Appellant it was submitted by the learned Senior Advocate of Nigeria that the learned trial Judge confused the Mortgagee’s Notice of intention to sell mortgaged property with the Auctioneer’s Notice of Sale. It was submitted that the learned trial Judge, instead of applying the Auctioneer’s Law which was profusely cited before him to determine the fate of the newspaper advertisement which is an Auctioneer’s Notice of sale went ahead to consider the newspaper advertisement under the concept of the Conveyancing Act 1881. It was contended that the Auctioneer’s functions are provided for in the Auctioneer’s Law applicable to Imo State (now Abia State) and whether any act done was valid or not would be determined by the provisions of that Law. It was also contended that no single provision of that Law which was duly referred to by counsel during address was considered in the judgment. Reference was made to the cases of Obikoya v. Governor of Lagos State (1987) 1 NWLR (Pt 50) 385; Duru-Ugwo v. Union Bank (unreported) FCA/E/176/82 delivered on 26/11/86; Oseni v. A.I.I.C. Ltd. (1985) 3 NWLR (Pt. 11) 229; Sanusi v. Daniel & Anor. (1956) 1 F.S.C. 93.(1956) SCNLR 288.
For the first respondent it was submitted that at pages 52 lines 21 – 23; 53 lines 1-3 of the record of proceedings, the learned trial judge set out six issues not in dispute between the parties. Two of these are the indebtedness of the deceased to the second defendant/respondent and the fact of the legal mortgage of the property by the deceased to the second respondent. It is the contention of the first Respondent that the relationship between the Mortgagor and the Mortgagee is governed by the Conveyancing Act, 1881 held to be a Statute of general application in Nigeria – Sanusi v. Daniel (1956) (1956) SCNLR 288 F.S.C 93; Lawal & Ors. v. Younan & Ors. (1961) 1 All NLR. (Pt. 2) 245 at 254-257. It was submitted that at page 6 of the Brief of Legal Argument of the Appellant, an attempt had been made to distinguish the case of Sanusi v. Daniel supra on the ground that it dealt with the Money lender’s Act. It was submitted that no attempt had been made by the Appellant to establish that a case of mortgage under the Conveyancing Act, 1881 cannot be so treated as the learned trial Judge has done in this case. It was contended that that omission by the appellant shows the Auctioneer’s Law is not all encompassing in its application and effect. It was submitted that the Conveyancing Act, 1881 is to be read subject to the modification contained in the Deed of Legal Mortgage – Exhibit ‘E’.
Issue No. (a) in the Second Respondent’s brief is one and the same thing with issue No. (a) in the Appellant’s brief. It was submitted for the 2nd Respondent that the argument of the Appellant simply put is that there was non-compliance with section 19 of the Auctioneers Law (cap 12) Laws of Eastern Nigeria applicable to Abia State and as such the sale to the 2nd Respondent was invalid. It was argued that to properly appreciate the soundness or other wise of this argument, it is necessary to refer to the pleadings of the applicant contained at pages 3-7 of the records. It was contended that it is not difficult to appreciate that the case of the Appellant was not based on alleged non-compliance with the provisions of the Auctioneers Law but on the fact of the non-existence of the property at the time of the auction. Reference was made to pages 6-7 of the records. It was submitted that there is no doubt that it was during the addresses of counsel that learned counsel for the appellant raised the issue now canvassed on appeal. It was argued that it is not enough for counsel for the appellant to raise the matter at address stage. It was stated that section 19 of the Auctioneers Law relied upon by the appellant stipulates that no sale of any land shall take place until after at least seven days public notice thereof made in principal town of the district in which the land is situate and also at the place of the land intended for sale. It was submitted that the burden of showing non-compliance rested on the appellant who failed to discharge the burden. It is the contention of the second respondent that there was no issue on the pleadings of non-compliance and hence the respondent could not call evidence showing compliance. It was stated that had the issue been properly raised by the appellant then the respondents could have been saddled with the burden of showing compliance with the Law. The Auctioneer would have been called as a witness.
It was submitted that the respondents surely cannot be expected to show compliance with all laws if an issue was not raised at the trial, It was also submitted that if the issue had been properly raised, the appellant would still fail in her bid to impugn the auction sale.
It is manifest from pages 55 lines 13-33; 56; 57 lines 1-22 of the record of proceedings that the learned trial Judge meticulously considered the contentions of the appellant on the validity of the sale of the property in dispute and concluded as follows:-
“following the above authorities, I hold that the 1st defendant obtained valid title to the property and that his title cannot be impeached.”
It must be mentioned also that the question of non-compliance with the provisions of Auctioneers Law is a question of fact which ought to be pleaded if the Appellant had wanted to make it part of her case. It is settled law that parties are bound by their pleadings.
It is also settled law that a party is not allowed to set up a different case in each stage of the hierarchy of courts. See Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; A-G., Anambra State v. Onuselogu Ent. Ltd. (1987) 9-11 SC. 197 (1987) 4 NWLR (Pt.66) 547 at 202.
It is not enough for the learned Senior Advocate of Nigeria to raise the matter of non-compliance at the address stage. I would like to say also that it is settled law that a declaration cannot be made in favour of a person who has acquiesced in the matter. See Jadesimi v. Okotie Eboh (1989) 4 NWLR (Pt. 113) page 113; Judicial Service Committee v. Michael Omo (1990) 2 NWLR (Pt. 157) 407 at 460 to 461. By Exhibit G, the appellant and her solicitor applied to the 2nd respondent for the balance of the proceeds of the auction sale and applied to the court below through her said solicitor for the said balance of the auction to be paid to the appellant and other beneficiaries. The order of the court is at pages 65-66 of the record. The Appellant herein was the sale applicant. The order of the court was for the balance to be paid to the Applicant now the Appellant within 14 days. It seems to me that the Appellant having accepted the validity of the auction sale by applying to be paid part of the proceeds of sale cannot turn round to ask for a declaration to be made in her favour that the same auction sale was invalid. It should be noted also that the appellant’s attempt to impugn the sale on the ground of non-compliance with the Auctioneers Law regarding seven days notice is misconceived. By clause 8 of the Deed of Legal Mortgage the Appellant’s husband expressly waived the right to notice under section 20 of the Conveyancing Act or under any law or custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property. Clause 8 of Exh. ‘E’ reads:-
- The Borrower hereby expressly waives his right to be given notice by the Bank under section 20 of the Conveyancing Act 1881 or under any law or custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property.:
It should be mentioned also that the appellant has relied on the dictum of Kolawole, J.C.A. in the case of Duru-Ugwo v. Union Bank (unreported) FCA/E/176/82 delivered on 26/11/86. It is patently clear that the dictum of the learned Justice quoted by the appellant was obiter. The lead judgment was delivered by Dahiru Musdapher, J.C.A. and it is clear from a perusal of the lead judgment that the sale was impugned successfully on grounds of equity. There was suspicion in that case that the bank had not acted in good faith.
It should be noted that the lead judgment in that case with which Umaru Maidama, J.C.A. of blessed memory and kolawale, J.C.A. agreed with did not refer to section 19 of the Auctioneers Law at all. It seems to me therefore that the authority is not applicable to the present case. In the authority under reference, the aggrieved party did not first of all accept the sale, apply and received part of the sale money and turn round to challenge the same auction. Furthermore, there is no suspicion that the 2nd respondent had not acted in good faith in the present case.
I am of the view that the correct position in law can be found in the case of Sanusi v. Daniel (1956) F.S.C. 93; (1956) SCNLR, 288 relied upon by the learned trial Judge, the complaint was similar. The property subject matter of auction had been conveyed to the purchaser whom the learned trial Judge held was a bona fide purchaser for value. The appellant challenged the sale on the ground that certain provisions of the moneylenders ordinance had not been complied with and that the seven days notice required by section 19(1) of the sales by auction Ordinance (similar to s.19 under consideration in this appeal) had not been given. The Federal Supreme Court per Jibowu acting F.C.J with de Lestang F.J. and Hubband Acting F.J. concurring stated thus:-
“The Appellants complaint is against an irregular exercise of the power of sale on the ground that there was a contravention of section 19(1) of the Sales by Auction Ordinance. It seems to me that the title of the 2nd respondent cannot be impeached since the property was conveyed to him and that the Appellant’s remedy is the damages against the 1st Respondent as provided by section 21(2) of the Conveyancing Act 1881.”
In the case in hand, the learned trial Judge was correct when he held that the 1st Respondent’s title could not be impeached since he was a bonafide purchaser for value without notice.
It is unlikely that the views of Kolawole, JCA would have been the same if the above Supreme Court authority was drawn to his attention. Thus I hold that the issue of non-compliance with the Auctioneers Law which is a question of fact did not arise from the pleadings and even if it did, such alleged non-compliance cannot nullify a sale to a bonafide purchaser for value like the 1st Respondent in this appeal.
Issue (ii) in the first Respondent’s brief is referred to as Issue 3 (b) by the Appellant and Issue (b) in the second Respondent’s brief. The learned Senior Advocate of Nigeria submitted that the Will Exh. ‘C’ was pleaded by the Appellant in paragraph II of the Statement of Claim. The first defendant traverses this averment in paragraph 9 of his Statement of defence. It was submitted that the traverse of the 1st Respondent does not put the validity of the Will Exh. ‘C’ in issue between the appellant and the Ist Respondent. Reference was made to the case of Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. It was submitted that the 2nd respondent traversed paragraph II of the Statement of defence. It was argued that this paragraph rather than challenge the validity of the Will, rested on it to plead lack of locus standi in the appellant. Reference was made to the case of Orizu v. Anyaegbunam (1978) 1 LRN 216. It was contended that only issues properly raised in the pleadings filed by the parties may be adjudicated upon by the court. It was submitted that where the court adjudicated on an issue not raised the resultant conclusion cannot be sustained. Reference was made to the case of Idika v. Erissi (1988) 2 NWLR (Pt. 78) 563. It is the contention of the appellant that from the pleading what was put in issue by the 2nd respondent was whether the appellant could derive locus standi from Exhibit ‘C’ in view of the fact that there was no re-grant after the partition. It was stated that no where was it alleged in any of the Statement of defence that Exhibit ‘C’ was not proved or admitted to probate. Consequently, it was submitted that all the learned trial Judge could do in the circumstance was to see whether Exhibit ‘C’ contained any conferment on the appellant of any right to any property before the court. It was contended that the legal significance of Exhibit ‘C’ was never in issue before the court.
It was submitted that the finding of the trial court that the appellant had no locus standi was based on extraneous conclusion which cannot stand.
For the 1st respondent, it was submitted that the issue in the case was not the validity of the will but the competence of the appellant to institute the action. It was submitted that the issue is the evidential or probative value of Exhibit ‘C’ and consequently, the capacity of the appellant to maintain the action. This, also, was what the learned trial Judge pronounced, it was submitted.
On pleadings, it was submitted that paragraph 11 of the statement of claim was sufficiently traversed. A number of cases were cited. It was contended that the issue of validity of the Will did not arise in this case. It was not in issue. It was submitted that what was in issue was the competence of the appellant to maintain the action, that is to say, her locus standi.
For the 2nd respondent it was submitted that the short question to be determined is whether on the pleadings, the validity of the purported Will – Exhibit C was in issue. It was submitted that the appellant argues in her brief that
“No where was it alleged in any of the statement of defence that Exhibit C was not proved or admitted to probate.”
It was contended that the appellant does not show an appreciation of the issues joined on the pleadings. Reference was made to paragraph 11 of the statement of claim wherein the appellant averred that the Will Exhibit ‘C’ had been proved and read at the Probate Registry, Owerri. Reference was also made to the averments contained in paragraph 9 of the 1st respondent’s statement of defence and paragraph 9 of that of the 2nd respondent. It was therefore submitted that the appellant has no locus standi in this case. It was further submitted for the 2nd respondent that the 2nd respondent pleaded in paragraph 12 of the statement of defence that the purported bequest to the appellant was invalid, null and void and that the appellant had no locus standi in this case. It was stated that the parties address the court on the issue.
After a hard look at the pleadings and the evidence adduced by the parties, it seems to me that the issue of the validity of the Will Exhibit ‘C’ did not arise in this case. It was not in issue. What was in issue was the competence of the appellant to maintain the action; that is to say, her locus standi. It is trite law, that the first duty of any plaintiff in a suit is to establish the capacity in which he sues. This to my mind is a mandatory requirement of law contained in the Rules of Court. The plaintiff must discharge this burden or the action fails. It is not a matter of pleadings as a party does not plead law. It is therefore difficult to agree with the appellant that the question whether Exhibit C was proved or admitted to probate was not in issue. It is settled law that a matter is said to be in issue, when one party affirms the existence of a fact and the other party denies the same. See Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177; Overseas Construction Co. (Nig.) v. Creek Ent. (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407; Honika Sawmill (Nig.) Ltd. v. Hoff (1992) 4 NWLR (Pt. 238) 673.
The next question that calls for determination since the respondents denied that the alleged Will had been proved or admitted to probate in their pleadings is whether the appellant discharged the burden of proving that the will Exhibit had been so admitted. The appellant made heavy weather of the answer given by PW2 under cross-examination that the Will had been admitted to probate. It is the view of the appellant that this amounts to sufficient proof. With respect, I do not agree with this view of the appellant. The appellant herself at page 22 lines 25 – 26 of the record stated that she had not obtained grant of Probate. See also page 24 line 1630 of the record. In the case of Lijadu v. Mrs. Franklin (1965) All NLR 114 also (1965) 1 All NLR 110 (old edition) it was held that
“The executor should not assert or rely on his right in any court without showing that he has previously established it in the probate division either by suit by probate in solemn form or in the ordinary form. The usual way in which he proved it was by production of a copy of the Will certified under the seal of the court. The state of the Law was described by Jarvis C.J. in Johnson v. Warwick 17 C.B. 516, as being that the court had not the legal optics through which to look at the Will until the Will was proved in the form provided by English Law.” See also Hass v. Atlas Assurance Co. Ltd. (1913) 2 K.B. 209.
Based on the above, it seems to me that the trial court was incapable of looking at Exhibit C, hence the conclusion arrived at by the lower court that it was incapable of conferring locus standi on the appellant is well founded. It must be noted that the appellant had the onus of producing a Will duly admitted to Probate and properly sealed with the seal of the court. The appellant did not do this and thus lacked locus standi to bring the action. See Quo Vadis Hotels & Ors. v. Commissioner of Lands, Mid-Western State & Ors. (1973) 6 SC.71 at page 82. The learned trial Judge at page 60 lines 17-31 of the record made the following additional observation:-
“I have observed that the plaintiff was mentioned in the Will in a dual position as a beneficiary as well as executrix. In this action, it is not certain whether the plaintiff was suing as executrix when in fact Mr. Edwin Emecheta son of the deceased is another executor or whether the plaintiff was suing on behalf of the beneficiaries who comprised of all the members of the family of the deceased including his first wife Mrs. Grace Emecheta. In the face of this argument, I am in complete agreement with the submission of the learned counsel to the 1st defendant “that plaintiff had not capacity to bring this action.” The mere fact that the Will Exhibit C mentioned her name as the owner of the property is not enough right to bring the action.”
The appellant had argued that since she
(a) was a beneficiary of the deceased’s Estate;
(b) was an executor of the Will of the deceased
(c) was residing in the premises
(d) was sued by the 1st respondent in suit No. A/371/84
(e) was given joint management powers with others by virtue of Exhibit “F” she was therefore competent to institute the action.
I have no doubt in my mind that none of the above facts taken singly or jointly entitled the appellant to institute the action the one crucial point in this matter which the appellant had over-looked is that the property in question was mortgaged to the 2nd respondent and the same had not been paid off. It cannot be contested that there could be no valid bequest of the property to her unless the mortgage was discharged. It is not in doubt that the law is settled that if there are more than one executor, all of them should join as plaintiffs except such as have renounced probate. Exhibit ‘C’ the alleged Will is clear that the appellant was not the Executrix and as such the action was very incompetent. See Bullen and Leak and Jacobs Precedents of Pleadings 12th Edition page 415. It must be remembered again that the purported Will was never admitted to probate. See appellant’s answers at page 22 lines 25-26 of the record of proceedings.
The appellant had referred to Exhibit F which is copied from pages 65-67 of the record of proceedings. Paragraph 8 of the said (Exhibit F) made at the instance of the appellant as applicant states –
“8. The A.C. Bank who gave a loan of N33,441.87 as of now and sold property at N105,000.00 will pay to them the balance of N71,558.13 within 14 days with effect from today 12/12/84 provided notice is given them at once”
The excerpt reproduced above certainly lends no strength to the appellant’s case but only goes further to show that the suit was incompetent. The applicant who applied to court to withdraw proceeds of the sale could not subsequently rely on the same order as entitling her to challenge the sale.
I now move on to the consideration of Issue No. (iii) in the 1st respondent’s brief which is Issue No.3 (c) in the appellant’s Brief of Argument and Issue No. (c) in the 2nd respondent’s brief.
The issue is whether or not the appellant is estopped by her own conduct from challenging the sale of the property in dispute. This issue is tied to the issue of the locus standi of the appellant to institute the present action. It is the submission of the learned Senior Advocate of Nigeria that the appellant has locus standi to institute this action. He cited a number of cases.
For the 2nd respondent it was submitted that the issue under consideration is peripheral to the issues for determination in this appeal, as even if it is upheld, it cannot decide the appeal in favour of the appellant. Reference was made to the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688. Reference was made also to the findings of the learned trial Judge at pages 57 lines 27-33, 58 lines 1-25 of the record. It was submitted that those findings are impeccable and unimpeacheable. It was also submitted that the fact of the appellant applying for and receiving payment for the balance outstanding after the second respondent had deducted the amount owing was pleaded by the defendants: paragraph 13 of the statement of Defence of the 1st defendant/respondent (page 10 lines 18-34); paragraph 13 of the statement of Defence of the second defendant/respondent at page 14 lines 24-30 of the proceedings. It was submitted that the issue revolves on facts and the findings of the learned trial Judge have not been demonstrated to be perverse.
For the 2nd respondent it was submitted that the conclusion of the learned trial Judge that the appellant withdrew the balance of N71,539.00 from the proceeds of the auction sale is consistent with and deducible from the evidence before the court. It was stated that the 1st respondent pleaded in paragraph 14 of the statement of defence that the appellant and others were appointed managers of the estate of the deceased and on 12/12/84 did obtain a High Court order to withdraw proceeds of the sale of the property. A certified true copy of the Order was admitted in evidence as Exhibit “P’. Reference was made to pages 65-67 of the record for the Order and in particular paragraph 8.
It should be noted that appellant filed a reply to the respondent’s brief of argument. The Reply Brief was dated 24/2/97 and filed the same date. I have perused the Reply Brief and I notice that the appellant did not file a reply to paragraph 14 of the 1st respondent’s Statement of Defence to either deny the existence of the Order or to attack it in any way. See Obot v. Central Bank of Nigeria Limited (1993) 8 NWLR (Pt. 310) 140. It must be mentioned that the law is settled that a certified true copy of a document is admissible without proof Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637. It is manifest from the record of proceedings that the appellant lied shamelessly under cross-examination in the face of the court Order – Exhibit F. See page 20 lines 5-20 and pages 20-21 of the record. The appellant who contended that Exhibit F was varied could not prove this.
Again, by Exhibit G a letter dated 5th February 1985 copied at page 68 of the record the appellant and her solicitor applied for the release of the funds to them as a result of the High Court Order – Exhibit ‘F’. The document was pleaded in paragraph 13(d) of the statement of defence of the 2nd respondent. The appellant again filed no reply to this paragraph of the statement of defence. Under cross-examination by counsel to the 1st respondent at page 20 lines 17-21 of the record, the following is recorded –
“Q: What happened to the balance of N71,558.13 remaining from the proceeds of sale of the property after the 2nd defendant had taken their money i.e N33,441.87?
Ans. No reply”.
I have no iota of doubt in my mind that in the face of Exhibits F and G and the barefaced lies of the appellant, it was impossible to reach any other conclusion than that reached by the lower court. As borne by the record the appellant was silent when the question above was put to her. The maxim of the Law is “silence means consent” See Iga v. Amakiri (1976) 11 SC. 1 at p. 12. The learned trial Judge held that there was no evidence before him that the balance of the proceeds of the auction sale was still standing in the credit of the deceased’s estate and when this is taken along with Exhibit G and P, it was most logical to presume that the appellant had collected the money. See section 151 of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria.
I now consider issue No. (iv) in the 1st respondent’s brief. This is issue No. (e) in the appellant’s amended brief of argument and also issue No. (e) in the 2nd respondent’s brief. It was submitted for the appellant that the learned trial Judge did not give due weight to the evidence led by the appellant in support of her case. It was contended that the learned trial Judge had come to the conclusion that property No. 26A was different from property No. 26 Okigwe Road as stated in Exhibit ‘C’. It was submitted that contrary to the statement in the judgment to the effect that the appellant’s evidence was at variance with her pleading, the appellant’s testimony as PW1 was consistent with the appellant’s case as pleaded that there was a partition in the life time of her husband, Mathew Nwaigwe Emecheta of the property No. 26 Okigwe Road into parcels ‘A’ and ‘B’. It was submitted that the appellant testified that she lived at 26A Okigwe Road, Aba and the 16A written in the record was a typographical error as 16 never featured anywhere in the case. Reference was made to pages 16-22 of the record and pages 23-24. A number of cases were cited. Concomitant with issue No.3 (e) in appellant’s amended brief is issue No. 3(1) which is whether or not Plot 232 Fuel Plantation Layout, G.R.A. Aba registered as property No. 84/84/626 was partitioned. I intend to take the two issues together. It was submitted for the appellant that the learned trial Judge made a finding that there was no partition of plot 84/84/262 Owerri with No. 26 Okigwe Road, Aba. It was contended that the appellant tendered Exhibit ‘B’ which duly informed the deceased Emecheta and 1st respondent of the partition. It was argued that the learned trial Judge appeared to hold the view that once a certificate had not been issued, no right had accrued. It was submitted that a certificate never creates a right, but is evidence of existing right. The following cases were cited and relied upon: Oil Field Supply Centre v. Johnson (No. 2) (1987) 2 NWLR (Pt. 58) 625; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Bada v. Pereira (1974) 11 SC. 51. It was submitted for the appellant that by virtue of Exhibit ‘B’ the plot No. 26 Okigwe Road had been duly partitioned into 26A and 26B. It is the contention of the appellant that by virtue of its surrender for partition, it ceased to exist.
For the 1st respondent it was submitted that issues 3(e) and 3(f) in the appellant’s amended brief are issues dealing wholly with findings of fact by the learned trial Judge. It was stated that to succeed in challenging these findings on appeal, the appellant must establish that they are perverse in the sense that they are insupportable by the evidence in the proceedings. It was submitted that the appellant must, also, establish that these affected the judgment materially and occasioned a miscarriage of justice. It is the contention of the 1st respondent that the judgment is supported by the evidence before the trial court.
For the second respondent it was submitted that when there is a complaint that a judgment is against the totality of evidence, it must necessarily be against the totality of the evidence adduced before the trial court and not against any specific document or issue. Such complaint must be concerned with the appraisal and not the weight to be attached to any particular evidence or document. It was contended that the consideration should be on the failure of the trial Judge to weigh the evidence on one side as against those on the other aside on the imaginary scale. Reference was made to the following case:
- Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511
- Leyland (Nig.) Ltd v. Dizengoff (1990) 2 NWLR (Pt. 134) 610.
- Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643.
It was submitted for the 2nd respondent that the appellant contends that because Exhibit ‘B’ was written to the deceased and the 1st respondent the property known as Plot 232 Fuel Plantation Layout Aba ceased to exist. It was submitted that there was no partitioning of the property as Exhibit B was a mere proposal.
Exhibit ‘B’ is a letter from the Assistant Chief Land Officer, Aba dated 6/6/83 addressed to the deceased. The letter is at pages 64-65 of the record of proceedings. I have read the letter carefully and I do not agree with the interpretation given to it in the appellant’s Amended Brief of Argument. The letter – Exh. ‘B’ merely conveyed approval of the Ministry of Lands, Survey and Urban Development to the proposed partitioning of the land in dispute. It did not in itself constitute partitioning of the property. The act of partition still lay in future. It is, so to say, inchoate. There were, consequently, no statutory certificates of occupancy issued in respect of the property. This fact ostensibly accounts for the same Ministry giving consent to the assignment of the property Exhibit ‘0’ – by the second respondent, after the auction sale. It is not in doubt that Exhibit ‘D’ demonstrates
(a) That the property in dispute still exists
(b) That the lease of it was still valid and existing for all purposes. At page 53 lines 28-33 and page 54 lines 1- 7 of the record, the learned trial Judge had this to say:-
“Taking issues 1 and 2 together of the issues in controversy, I would say that there is no evidence before me to prove that the property at No. 26, Okigwe Road, Aba has been partitioned into two or more. There are no separate documents of title to separate partitions of the property. At best the letter Exhibit ‘B’ from the Ministry of Lands might be a proposal which, of course was not carried out by the deceased before his death.
Since in the Will – Exhibit C the deceased bequeated the entire No. 26 Okigwe Road, Aba to the plaintiff without any partition. Indeed, there are no separate certificates of occupancy before the court showing Part A and Part B of the property.”
The above finding of the court below is sound in law and in common sense. The conclusion of the court is impeccable. It should be noted that the appellant and the 1st respondent never paid the requisite fees, and again from the evidence of the 2nd defendant’s witness Christian Okwuba at pages 33 lines 10-34 and page 34 lines 1-34, it is clear that the bank gave a conditional acceptance of the proposed break up which required the Lands officials to give an undertaking to fulfill the conditions pleaded in paragraph 5 of the statement of defence at page 13 of the record. The evidence of the 2nd defendant’s witness is that following the failure of the Ministry of Lands to satisfy the conditions given by the 2nd defendant/appellant it was assumed that the transaction had fallen through. This was natural since they were unpaid mortgators. There was therefore no question of surrendering anything.
It is the complaint of the appellant that the findings of fact by the learned trial Judge in this case were perverse and this court should interfere. It is settled law that it is where a trial court has made improper use of the opportunity of seeing and hearing the witnesses that is, where the finding of the lower court is not supported by the printed record or the finding is not the proper conclusion or inference to be drawn from the evidence, that the Court of Appeal will and must in the interest of justice, interfere by altering, reversing or setting aside such perverse finding of the lower court. In the case in hand, it is manifest from the record of proceedings that all the findings made by the lower court are consistent with the evidence before the court. See Egiri v. Uperi (1973) 11 Sc. 299 at page 310; Kuforiji & Anor v. V.Y.B. (Nig.) Ltd. (1981) 6-7 SC. 40 at page 85; Chief Frank Ebba v. Chief Warri Ogodo (1984) 4 SC. 82 at 98., (1984) SCNLR 372
In conclusion I must also say that the fraud pleaded by the plaintiff/appellant was not proved. See Egbase v. Oriareghan (1985) 2 NWLR (Pt 10) 884; George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71. In the result, this appeal fails and it is dismissed by me. I confirm the decision of the learned trial Judge delivered on 22nd Day of October, 1991. The respondents are entitled to their costs, which I assess at N1,500 to each of the two respondents thus making a total of N3,000.00 costs in favour of the respondents against the appellant.
Other Citations: (1997)LCN/0338(CA)
