Akpasubi Omonfoman V. C. K. Okoeguale (1986)
LawGlobal-Hub Lead Judgment Report
AJOSE-ADEOGUN, J.C.A.
The appellant herein was the defendant in a suit instituted at the Ubiaja Judicial Division of the High Court of Bendel State. In it, the claim against him by the plaintiff (now respondent), as slightly reframed in the Amended Statement of Claim, was for the following reliefs:-
“(a) A declaration that the Plaintiff is the person entitled to apply and be granted a customary and/or statutory right of occupancy in respect of the parcel of land known as and situate at No. 1, Agbor Road, Uromi a place within the jurisdiction of this Honourable Court which land is particularly delineated in Pink in survey Plan No. LSF 520 of 27/1/82 filed with the Statement of Claim.
(b) N1000.00 (One thousand Naira) being damages for trespass in that the defendant without the consent or authority of the plaintiff continued to remain in occupation of the said premises known as No. 1, Agbor Road, Uromi and collecting rents therefrom.
(c) An order of perpetual injunction restraining the defendant his servants and or agents from unlawful occupation of the said premises or doing anything inconsistent with the plaintiffs proprietary interest with respect to the said premises.
OR THE ALTERNATIVE
The plaintiff claims mesne profit from 1/4/81 until the date of judgment. ..
From the pleading as well as from the supporting evidence adduced at the trial, the case put forward by the plaintiff/respondent may be easily summarized. The property in dispute (No. 1, Agbor Road, Uromi) contains a main house abutting the main Road and a smaller second building at the rear with out – houses (kitchen and latrine). Although not given in evidence, it was pleaded that the land itself, before the buildings were erected on it, was acquired by one R. A, Uzodenma (now deceased) from the then Okojie I (Ogbidi – also now deceased) in accordance with the customary practice at the time for non Natives, namely, by “Kola Nut system”. After acquisition, the said Uzodenma developed the land by building on it. He and his family then lived there for many years before he died. It was further averred that after the death of Uzodenma, “the heir of his body sold the land (with) the house to one C. A. Chikwuelue”. Thereafter, the family of the deceased left for their town in the then Eastern Region of Nigeria (See paragraphs 4, 5 and 6 of plaintiffs Amended Statement of Claim).
I have deliberately referred to the above pleaded facts, even though no evidence was given thereon at the trial, because of the serious controversy between the counsel for both parties regarding the nature of plaintiff’s radical title and the lack of evidence thereon. Considerable arguments were advanced on the said issue in the court below and the learned trial judge decided it in favour of the plaintiff/respondent. Consequently, the same issue and the trial court’s decision thereon were vigorously pursued in this appeal by defendant/appellant counsel. It would appear that five of the total of ten grounds of appeal herein (original ground 2 and additional grounds 1, 2, 4 and 5) were devoted thereto. I shall return to this aspect of the case later when considering arguments on the relevant grounds of appeal.
It was further the plaintiff/respondent’s case that C. A. Chikwuelue, to whom the land with the front house was sold, lived there for many years until same was sold by him jointly to one F. I. Ezigbo (then a tenant therein) and A. O. Chikwuelue (a brother of the vendor). The two of them paid jointly and in equal shares for the main building. All three were said to be related. That was on 1st August, 1947. After the purchase, the two of them rebuilt the said front house and put tenants therein. They were sharing the rents equally. But it was their vendor, C. A. Chikwuelue, who built the second smaller house at the rear and he remained the owner thereof until his death when it passed on to his next-of-kin and brother, A. O. Chikwuelue. F. I. Ezigbo had no proprietory interest in the said second house.
According to A. O. Chikwuelue who testified in support of the plaintiffs case (P.W. 3), his co-owner, F. I. Ezigbo continued to live in part of the house bought by them until 1960when he left Uromi to settle in Enugu. But he left his family behind and his wife was collecting rents from the tenants. As a result of the civil war in 1967, Ezigbo’s family also left Uromi. The house in question and the second smaller one were subsequently taken over by the Rehabilitation Committee which put tenants therein and was collecting rents from them. The defendant/appellant was said to be one of the tenants so put in by the Rehabilitation Committee.
After the civil war, the first son of Mr. F. I. Ezigbo, who was only three years old in 1947 when his father and A. O. Chikwuelue jointly bought the front house, returned to Benin and went to see their house at Uromi. According to the said son, Dr. F. I. C. Ezigbo, a lecturer in Zoology at the University of Nigeria, he left Uromi in 1965 to study in the same University. When he returned there in January 1970, he found tenants therein and spoke D to them. It was then he learnt that the house was under the management of the Rehabilitation Committee of the then Midwestern State. He returned to Enugu and informed his father about the condition of the house and its management by the Rehabilitation Committee. Thereafter, his father and the co-owner, A. O. Chikwuelue, proceeded to Benin City to demand from the Rehabilitation Committee the return of their own house and that of late C. A. Chikwuelue. The two houses were released – the front one to Ezigbo and A. O. Chikwuelue as per the letter and Certificate of Repossession (Exhibits “B” and “B1”) from the Ministry of Community Development and Rehabilitation, Benin City. The smaller back one was allegedly released to A. O. Chikwuelue also with a Certificate of Repossession which was said to have got lost when his bag was allegedly stolen at Onitsha. The certificate (Exhibit “B1”) in respect of the front house was issued on 11th April, 1970. One important aspect of the plaintiff/respondent’s case touched the question of defendant/appellant’s connection with the entire property now in dispute. According to Dr. Ezigbo (P.W. 2) and A. O. Chikwuelue (P.W.3), the defendant/Appellant approached the two co-owners immediately after the two houses were released by the Rehabilitation Committee, asking to be appointed a caretaker thereof. He was so appointed. As consideration for the duty to be performed by him, defendant/appellant was allowed to remain in the portion already occupied by him, rent free. Printed receipt books were allegedly issued to him. He was said to be collecting rents and paying same over to F. I. Ezigbo and A. O. Chikwuelue from 1970 to 1979 when the former died.
But defendant/appellant continued from 1979 until 1981 to render accounts and pay all rents collected by him to Dr. Ezigbo and A. O. Chikwuelue. It was in March that year (1981) that the two of them decided to sell the entire property in question, consisting of the two buildings and out houses, to the plaintiff/respondent. The front house was sold for N18,000.00 (Eighteen thousand naira) while the smaller rear one was sold for N2,500.00 (Two thousand five hundred naira). Two separate agreements in respect of both sales were tendered in evidence as Exhibits “C” and “F”.
Soon after the aforesaid sale of the property in question to the plaintiff/respondent, the vendors (Dr. F. I. Ezigbo and A. O. Chikwuelue) instructed their solicitors, Messrs Sador & Co., to write to the defendant/appellant informing him about the sale and asking him to give up possession of same to the purchaser. A copy of the said Solicitors letter, dated 31st March, 1981, was tendered in evidence as Exhibit “D”. In a reply dated 29th May 1981 (Exhibit “E”), the defendant/appellant’s Solicitor (J. S. Ehichoya Esq.) stated inter alia, “that the two buildings and the land upon which they are built (belong) to (his) client”. It was further alleged that the defendant/appellant built the said two houses and that F. I. Ezigbo as well as other Ibos were his (defendant’s) tenants before the Nigerian Civil War. “Many reasonable, responsible, respected and honest people at Uromi” were also alleged to know that defendant “built the two buildings and that they are his bona fide property”. Finally the plaintiff respondent himself testified that he bought the property in question and that defendant/appellant had not been paying to him the rents collected from tenants therein and even rents in respect of the two stores and two rooms occupied by him (the appellant) in the main building. Hence this action by the plaintiff/respondent.
On his part, the defendant/appellant maintained at the trial that he bought the two houses in question from Mr. Fidelis Ezigbo who owned them.
It was also the appellant’s case that at the outbreak of the civil war, the said Fidelis left the said property and returned to his home-town in Anambra. During the civil war, windows and doors were removed from the houses by unknown persons. Defendant/Appellant then replaced the doors and windows and moved into the houses with his family. According to him, he did not obtain the permission of anybody before taking possession of the property in question. But later, the Rehabilitation Committee of the then Midwestern Region of Nigeria took over the management of the property as one of those abandoned by Ibo people. The Committee demanded rent which appellant said he was paying until the end of the civil war.
According to the defendant/appellant, Fidelis Ezigbo returned to Uromi after the civil war and wanted to sell the two houses as they had been released to him by the Rehabilitation Committee. Appellant told Fidelis that he was prepared to buy the two houses and the latter agreed to sell them for N6,000.00 because of the improvements made by the former in the said houses. The sale was concluded and a receipt (Exhibit “H”) was issued to the appellant. Appellant alleged that he later added two more rooms to the front house, dug a well and also connected water pipes to the premises – all costing him N9,000.00. Tenants were put into the houses and appellant was collecting rents at the rate of N1.00 per room from them.
Later, plaintiff/respondent wrote to say he was the owner of the two houses and that appellant should vacate same. The tenants therein also received similar letters asking them to vacate the houses. Since then, they had stopped paying rents.
In his judgment delivered on 27th June 1984, the learned trial judge, after making some findings, upheld all the three reliefs claimed by the plaintiff/respondent, except that only N400.00 was awarded as damages for trespass instead of the N1000.00 being claimed. The basis of the said judgment as contained in its concluding part, were stated as follows:-
“I want to say that P.W.2 profoundly impressed me as a witness of truth. So also was P.W.3. I accept their evidence that the defendant was their caretaker in respect of the houses at No.1. Agbor Road, Uromi. I believe their evidence that they sold the disputed buildings to the plaintiff. I believe P.W. 2’s evidence that his father and P. W. 3 jointly owned the main building at No.1 Agbor Road and that on the death of his father, he and P.W.3 became joint owners. The defendant did not dispute the fact that the houses in dispute were owned by F. I. Ezigbo. He confirmed this in his testimony in this court. It is my view that the defendant knew that F. I. Ezigbo and A. O. Chikwuelue were joint owners of the main house at No.1, Agbor Road, Uromi and that C. A. Chikwuelue was the owner of the back house. He also knew that on the demise of Mr. F. r. Ezigbo, his son, Dr. F. I. C. Ezigbo (P.W.2), became a joint owner of the said main building with Mr. A. O. Chikwuelue (P.W.3) and that Mr. A. O. Chikwuelue took over the control of the back house on the death of his senior brother, Mr. A. C. Chikwuelue. But in order to give support to his cooked-up case, he said that F. r. Ezigbo was the sale owner of the two houses.”
Being dissatisfied with the whole of the said judgment, the defendant appealed to this court on ten (10) grounds – two original and eight additional. Perhaps I should take this opportunity to say again, as often repeated by this court, that additional grounds should be numbered consecutively and serially along with original grounds, thus avoiding duplication of numbers. May I also add that grounds of appeal should, as far as possible, be put succinctly and not at great lengths as was done in this case – running to five foolscap pages. In setting out the grounds of appeal herein, I shall, for convenience, omit the particulars or points of misdirection/errors in law. This is because the said particulars of errors are substantially contained in the supporting arguments set out in the appellant’s brief. The said ten (10) grounds are as follows:-
“1. That the judgment is against the weight of evidence.
- That the learned trial judge was wrong in law to have declared the plaintiff/respondent to be the person entitled to be granted a statutory right of occupancy when the sale to him of the land and houses in dispute was incompetent in law and without foundation whatsoever.
ADDITIONAL GROUNDS
- (3) The learned trial judge misdirected himself in law when he held that plaintiff had proved his case against the defendant and entitled to judgment on the three heads of claim, there being no evidence led by the plaintiff:
(a) To prove specific averments contained in paragraphs 4, 5, 6 and 7 of the Amended Statement of Claim to the effect that R. A. Uzodenma, C. A. Chikwuelue, Messrs F. I. Ezigbo and A. O. Chikwuelue, plaintiff’s alleged predecessors-in-title, obtained such title or interest from the late Okojie I (Ogbidi), the Onojie of Uromi, strictly in accordance with Uromi Customary Law and practice.
(b) To establish that the title of his predecessors which he allegedly acquired by purchase was in fact a valid title either legally or in accordance with Uromi Customary Law and Practice.
(c) To estahlish that his own alleged purchase was also a valid purchase and competent in law having regard to the provisions of the Land Use Decree of 1978, as in law he could not succeed in his claims by canvassing a defective title.
- (4) The learned trial judge misdirected himself in law and on the evidence when he held:
“Paragraph 4 of the Amended Statement of Defence has not sufficiently denied the averments in paragraphs 4, 5 and 6 of the Amended Statement of Claim to raise any issue in respect of those averments. The said paragraph 4 is therefore as good as pleading admission of the said paragraphs 4, 5 and 6 of the Amended Statement of Claim It is unnecessary for the plaintiff to adduce evidence on what is admitted by the defendant.”
(Points of Misdirection supplied)
3.(5) The learned trial judge was wrong in law for awarding damages in trespass against the defendant in favour of the plaintiff when there was neither evidence to establish that the plaintiff had a present (possessory) title to the land in dispute nor evidence of his being in possession at all.
4.(6) The learned trial judge was wrong in law for not dismissing the plaintiffs case for want of proof when he held:
“There is no evidence that Uzodcnma was the absolute owner of the land in dispute. The interest he had was therefore by operation of the Customary Law of Uromi a right of customary occupancy whether or not it is proved that he was a customary tenant who paid tribute to the Onojie of Uromi” when
(a) The case which the plaintiff tried to establish by his pleading and evidence in court was that Uzodenma, his predecessor-in-title, had absolute title to the land in dispute, having acquired same “in accordance with the Customary practice at the time for non Natives, namely, by Kola nut system
(b) There being no evidence that the system by which Uzodenma was alleged to have acquired title to the land in dispute conferred upon him only “a right of customary Occupancy.”
(c) There being no evidence to establish the nature, extent, rights and interests, or incidence, if any. which a Customary Occupancy under Uromi Customary Law confers on a non-native grantee.
- (7) The learned trial judge further misdirected himself in law and on the evidence when he held:
“In the case in hand what was transferred to F. I. Ezigbo or the plaintiff was not an absolute title but merely a right of occupancy which does not require the presence of witnesses. The presence of witnesses is required only in the transfer of absolute title under Customary Law.”
(Points of Misdirection supplied)
6.(8) The learned trial judge was wrong in law for holding that Exhibit “B1″, Certificate of Repossession of Property, was rightly admitted in support of the evidence that the Rehabilitation Committee released No. 1, Agbor Road, Uromi to F. I. Ezigbo and A. O. Chikwuelue and to prove the signature of F. I. Ezigbo and A. O. Chikwuelue…”
(Particulars of Errors supplied)
7.(9)The learned trial judge misdirected himself in law and on the evidence when he held:
“The plaintiff has not alleged either in his pleading or in his evidence in this court that the defendant has played any fraud on him. The plaintiff’s claim is not based on fraud and so the fact that fraud is not pleaded does not arise.”
(Errors of Misdirection supplied)
- (10) The learned trial judge erred in law in failing to observe that it was not open to him to make a comparison of the signatures of F. I. Ezigbo on Exhibits “B1” and “H” which can only be justified on the basis that Exhibit “H” which is the purchase receipt issued by F. I. Ezigbo to the defendant was either forged or fictitious since such allegation was not pleaded. ”
Although appellant’s counsel listed six (6) issues as arising for determination in this appeal, his arguments thereon were divided into three groups in relation to the grounds of appeal. It was a wise move, since the grounds taken together in two of the groups touched substantially on the same main issue or complaint. Indeed, counsel admitted that much at the beginning of his arguments on the original ground 2 and the additional grounds, 1, 2, 4 and 5, all five of which were 5. taken together. Similarly, grounds 6, 7 and 8 of the additional grounds were argued together. The former group consisting of five grounds, raised, in the main, the issue relating to an examination of the plaintiff/respondent’s claim, the pleadings thereon, the supporting evidence in proof thereof and the court’s findings on them. In effect, the real issue for determination under those grounds of appeal (original 2 and additional 1, 2, 4 and 5) is ‘whether the facts pleaded in the Amended Statement of Claim and the evidence adduced thereon at the trial can justifiably support the decisions of the learned trial judge whereby the plaintiff/respondent’s entire claim was granted.’
The same issue, as framed above, is involved in the original ground 1, relating to the trial court’s decision being against the weight of evidence. Incidentally, that ground was not adverted to in appellant’s brief – and rightly so in my view since it is well covered under other grounds. Thus, I propose to adopt the said real issue, as framed by me above, as one of those for determination in this appeal. In fact, the said issue covers practically all the aforesaid six issues listed by appellant’s counsel in his brief.
In the second group in which three grounds (additional 6, 7 and 8) were argued together, appellant’s counsel contended that they raised “the issue of fraud and the admissibility of certain documents”. The fraud referred to was in connection with the receipt of purchase (Exhibit “H”) tendered by the appellant as having been issued to him by his alleged vendor, F. I. Ezigbo. Also criticised in one of the said grounds (6) was the admissibility of a Certificate of Repossession of Property (Exhibit “B”) issued by the Rehabilitation Committee, while another ground (8) complained about its use by the learned trial judge. Thus, the real question for determination should be ‘whether the learned trial judge was right in admitting into evidence a Certificate of Repossession (Exhibit “B”) issued by the Ministry of Community Development and Rehabilitation and in using same to test the genuineness or otherwise of the appellant’s receipt (Exhibit “H”) when on the pleadings the said receipt was not challenged by the respondent.’
I propose to adopt the above question, in the manner framed, as the second issue for determination in this appeal. Of course, the last ground (additional 3) argued by appellant’s counsel raised on its own, the issue as to whether damages awarded to the respondent could be justified when there was no evidence of possession of the property in dispute by him at any time. In my view that issue may still fall under the first issue earlier proposed above concerning the consideration of the facts pleaded, the evidence adduced and the court’s decision thereon. Similarly, the two issues suggested by the respondent’s counsel as to the person with the better title and the correctness of the judgment may well fall within the same first issue. For all the above reasons, the six issues formulated by appellant’s counsel will be merged and postulated as two main issues for determination herein. They are, as already framed hereinbefore, the following:-
“1. Whether the facts pleaded in the Amended Statement of Claim and the evidence adduced thereon at the trial can justifiably support the decisions of the learned trial judge whereby the plaintiff/respondent’s entire claim was granted.
- Whether the learned trial judge was right in admitting into evidence a Certificate of Repossession (Exhibit “B”) issued by the Ministry of Community Development and Rehabilitation and in using same to test the genuineness or otherwise of the appellant’s receipt (Exhibit “H”) when on the pleadings, the said receipt was not challenged by the respondent.”
It will be more convenient and appropriate to consider first, the arguments of both counsel on the second issue above since it deals with a narrower aspect of the appeal than the first issue. The said arguments were advanced in respect of the additional grounds 6, 7 and 8 which were then together. According to appellant’s counsel, the Certificate of Repossession (Exhibit “B”) tendered on behalf of the respondent was wrongly admitted and ought to have been expunged because the Ministry of Community Development and Rehabilitation which issued it “had no legal authority to certify any property as that of any particular person or persons”. Reference was made to the case of Mbachu v. Oshadi & Anor (1977) 3 F.C.A. 110 at 136. It was also described as “a certificate of a mere matter of fact not coupled with matter of law” and therefore inadmissible.
Regarding the use of the said Certificate (Exhibit “B1”), appellant’s counsel criticised the learned trial judge for holding that Exhibit “B1” was tendered for the purpose of forming the basis of comparison with any disputed signatures of F. I. Ezigbo and A. O. Chikwuelue. According to counsel, such a purpose was never pleaded and neither was any evidence given to such effect. It was therefore argued and submitted that the learned trial judge did, on his own, take the respondent’s case out of the realm contemplated by his pleading by evolving a different case for the parties. Reference was made to the case of Dr. Nwafor Orizu v. Francis Anyaegbunam (1978) 5 S.C. 21 at 36.
Attention was also directed to the use made of the same exhibit “B1” by the learned trial judge to compare the signature of F. I. Ezigbo thereon with that on appellant’s purchase receipt, Exhibit “H”. It was contended that since no dispute was disclosed on the pleading or in the evidence to suggest that any signature of F. I. Ezigbo on any document tendered was false, fictitious or a fraud, the said use was improper. Thus the finding that there was no sale of the property in dispute to the appellant could only suggest that the purchase receipt, exhibit “H” was a fraud. Counsel therefore submitted that the said finding was erroneous since fraud was not pleaded. Reference was made to the case of Davy Bros. v. Garret (1878) 7 Ch. D. 489 and that of Usenfowokan v. Idowu & Anor. (1969) 1 NMLR 77.
In his own Brief of Arguments, respondent’s counsel first dealt generally with the facts given in evidence. According to him, F. I. Ezigbo “was a constant denominator in the transactions as asserted by both parties”. Respondent’s counsel directed attention to a letter (Exhibit “E”) written by appellant’s solicitor and submitted that it was in violent conflict with the pleaded facts and the purported purchase receipt (Exhibit “H”) from F. I. Ezigbo. Also, counsel referred to the “Notice by Landlord to quit lodgings” issued by the appellant as the agent of Fidelis Ezigbo on 31/1/78 about four years after the alleged sale in Exhibit “H”. In effect, so argued counsel, it was clear from the evidence that appellant’s case was fabricated. The only witness of the appellant, a son-in-law, testified that he signed Exhibit “H” as a witness to appellant’s signature. It was submitted that the said witness did not testify to Ezigbo’s signature. Thus, appellant was the only person who saw Ezigbo sign Exhibit “H”. It would seem to be also part of the submission of learned counsel for the respondent that since appellant relied heavily on the receipt Exhibit “H”, allegedly issued in 1974, the said receipt ought to have been shown to the respondent’s witnesses (P.W. 2 and P.W. 3) who stated that they were familiar with the signature of F. I. Ezigbo.
Regarding the admissibility of Exhibit “B1”, the Certificate of Repossession, respondent’s counsel submitted that learned trial judge rightly admitted it under section 60 of the Evidence Act for the purpose of comparing it with appellant’s receipt, Exhibit “H”. I do not agree that section 60 of the Evidence Act is applicable. He further submitted that in view of the conflicting versions of the stories presented by the appellant on how he acquired the property in dispute, the trial judge was right “when he admitted exhibit “B1″ as a document received in exercise of act of possession”.
To begin with, it seems clear that plaintiff/respondent specifically raised the Issue of the Rehabilitation Committee having taken over, during the civil war, the management of the property in dispute and that it put tenants therein including the defendant/appellant. It was also specifically pleaded that after the war. F. I. Ezigbo and A. O. Chikwuelue came to Uromi to have Iheir property released, that it was duly so released to them and that all relevant documents pertaining thereto would be relied upon at the trial (see paragraphs 14,15 and 16 of the Amended Statement of claim). In the appellant’s pleading, these facts were not specifically denied. On the contrary appellant admitted the alleged taking over of the property by the Rehabilitation Committee set up by the Ministry of Community Development and Rehabilitation, Midwestern Region (see paragraph 7(iii) & (iv) thereof). He also admitted moving into the property when Ezigbo, alleged owner and occupier. “fled to the then Eastern Region of Nigeria with his family” (see paragraph 7(i) & (ii) of the same pleading).
In the situation described above both parties were agreed on the pleadings, that the property in dispute was taken over by the aforesaid Rehabilitation Committee. The points of difference between them were (a) as to its ownership/possessor at the time of the take-over and (b) as to whom it was released. Appellant’s contention in his own pleading was that it belonged entirely and was released to F. I. Ezigbo (his vendor) while respondent’s case was that part of it (main building) belonged and was released to Ezigbo and A. O. Chikwuelue. It was further contended by the respondent that the other smaller house belonged entirely to the late C. A. Chikwuelue and not to Ezigbo at all. One way of establishing this aspect of the respondent’s case – particularly the release of the possession of the main house, was to call an officer of the Rehabilitation Committee (a body accepted by both parties) to establish the point as to whom the said release was made. That point was one of the issues joined between the parties on their pleadings.
I agree with the submission of learned counsel for the appellant that the Certificate (Exhibit “B1”) by itself could not establish ownership of the property concerned. Indeed, it was not issued for such a purpose. But what the case of Mbachu v. Oshodi & Anor. (supra) and the portion of Phipson on Evidence cited therein are saying is that at common law, such a Certificate containing “a mere matter of fact not coupled with matter of law” is generally inadmissible – irrespective of whoever issued it. The rule will of course, be relaxed if a statute provides otherwise. Thus, by section 90 (1) of the Evidence Act, Cap. 57 of the Laws of Bendel State, such a document is admissible as evidence of the fact it tends to establish, if the maker “had personal knowledge of the matters dealt with by the statement” in it and such maker is called as a witness in the proceedings.
Arising from the above, the answer to the aforesaid second issue for determination herein is that the Certificate of Repossession, Exhibit “B” in the court below, was not completely or totally inadmissible under any circumstance but could be admitted under certain conditions, already stated above, as provided for in section 90(1) of the Evidence Act. In the case in hand, since the Certificate in question was admitted into evidence by the lower court without objection from appellant’s counsel, this court will not entertain any complaint on its admissibility: See the case of Abolade A. Alade v. Salawu I. Olukade (1976) 2 S.C. 183 at 189. That being the position, the learned trial judge had a discretion to use it and not expunge it as submitted by appellant’s counsel.
I am particularly of the view that in the circumstances revealed in the case under consideration, it was competent for the trial court to act on the said Exhibit “B1”. The appellant himself admitted the take-over and release of the property in dispute and also being one of the tenants of the Rehabilitation Committee. In order, however to resolve the issue as to whom the possession of the said property was released, it was necessary to receive evidence thereon from the Ministry responsible. That was what Exhibit “B1” was meant to achieve, even on the pleading and from the supporting evidence by which it was tendered without objection. Indeed, I am also of the view that in such circumstances, the trial court would have been justified if it had used its discretionary power, under section 90(2)(a) of the same Evidence Act, to admit the said Certificate “notwithstanding that the maker of the statement (was) available hut (was) not called as a witness”.
Turning to the other leg of the aforesaid second issue for determination in this appeal, I find as attractive and quite forceful the arguments of learned counsel for the appellant concerning the use, by the trial court, of the Certificate for Repossession (Exhibit “B”) to test the signature of appellant’s vendor on the purchase receipt, Exhibit “H”. The crux of the complaint in this regard was that respondent did not plead or give evidence of any suggestion that the said receipt was forged, fictitious or false. It is undoubtedly settled law that fraud must be “distinctly alleged and distinctly proved”: Davy Bras v. Garret (1878) 7 Ch. D. 489. See also the case of O. A. Unsenfowokan v. S. L. Idowu & Anor. (1969) 1 N.M.L.R. 77 at page 81 where the Supreme Court held that “any charge of fraud must be pleaded with the utmost particularity”. Strong as that injunction is, the application of it in any case must depend on the peculiar circumstances therein as revealed by the pleadings.
There is no doubt that in the case under consideration, fraud was not only unpleaded but was also clearly not in the intention of the plaintiff/respondent. What happened was that each party set out in his pleading facts which supported his right to ownership and possession. But it turned out that the late F. I. Ezigbo was mentioned by either side as involved in the transfer of part or all of the disputed property. The learned trial Judge therefore had the task of deciding the question as to which of the parties the said Ezigbo actually transferred his interest, if any. In that task, the Judge had to use the material facts put before him by either party. There is no doubt that from the portion of the judgment dealing with the said question, the learned trial Judge was not considering the issue of fraud. All he did was to test the cases of the parties on the available evidence, including documents admitted as Exhibits. Such a method of dealing with conflicts on a material fact is permissible:
See the case of Fashanu v. Adekoya (1974) 1 All N.L.R. 35 at 41/42. In my view, all the arguments and submissions relating to the issue of fraud, as put forward by appellant’s counsel were totally misplaced. I believe counsel misconceived the real purport of the learned trial Judge’s exercise for determining whether the late F. I. Ezigbo actually transferred his interest in any part of the disputed property to the defendant/appellant. That the learned trial Judge did nor consider the issue of appellant’s receipt being a fraud was quite manifest in the relevant portions of the judgment under appeal. Apparently, the Judge agreed with Chief Akere that “if the plaintiff alleges fraud or forgery against the defendant in respect of the signature of F. I. Ezigbo on Exhibit “H”, he should have pleaded it by amending his Statement of Claim.” His Lordship then quoted the definition of ‘Fraud’ as contained in Jowitt’s Dictionary of English Law, 2nd Edition by John Burke and concluded as follows:-
“From the foregoing definition of fraud, can it be said that Exhibit “H” is a fraud on the plaintiff when the transaction evidenced by it was not between the plaintiff and the defendant? The answer is No. As between the plaintiff and defendant there is no fraud express or implied. At the time claimed by the defendant that he bought the two houses, now in dispute the plaintiff had not come into the show and had not expressed any interest whatsoever in any of the two houses. Even granted that Exhibit H is a fraudulent document, its fraudulent effect was not on the plaintiff or directed on the plaintiff, as at the time the document was made. The plaintiff has not alleged either in his pleading or in his evidence in this Court that the defendant has played any fraud on him. The plaintiffs claim is not based on fraud and to the fact that fraud is not pleaded doe not arise.”
(Italics mine)
I am in full agreement with the above exposition of the law by the learned trial judge as it relates to the facts and circumstances disclosed in the case before him. A consideration of the appellant’s claim of right to ownership and possession arose, as it must do, after the judge had considered and assessed respondent’s evidence in support of his claim. His Lordship’s use of Exhibit “B1”, found to contain the genuine signature of the same F. I. Ezigbo, to test the veracity or authenticity of appellant’s receipt, Exhibit “H”, was, in my view, proper. This was more so as the said signatory was already dead and the Judge found that appellant had put up contradictory versions as to how he came about the disputed property. There was the letter Exhibit “E” in which he claimed to be the owner of the land and to have built the two houses thereon. He even referred to the late F. I. Ezigbo as his tenant before the civil war. Appellant retreated from all those allegations which he made in 1981 – some seven (7) years after his purchase receipt, Exhibit F “H” was allegedly issued to him in 1974. That serious conflict in appellant’s stories was enough to warrant a much closer look at the said receipt to see it was genuine.
For all the above reasons, I have come to the conclusion that the complaints in the additional grounds 6, 7 and 8 of this appeal are not justified. Those grounds should therefore fail and are hereby dismissed.
Let me now return to the aforementioned first issue for determination in this appeal. It is related to the original ground 2 and the additional grounds 1, 2, 3, 4 and 5. All six can be taken together as already indicated earlier in this judgment. The first principal complaint under most of these grounds related to the nature of plaintiff/respondent’s basis or root of his claim to ownership and possession. His case on the pleading was that the land comprising the property in dispute was acquired by one late R. A. Uzodenma from the late Onojie I (Ogbidi) under customary practice applicable to non Natives. Plaintiff/respondent then traced the descent of the land to his vendors. All these are contained in paragraphs 4, 5 and 6 of the Amended Statement of Claim. The rest of his case has already been summarized above.
Now, appellant’s counsel submitted that no evidence was led in proof of the averments in the aforesaid paragraphs 4, 5 and 6 – and to some extent paragraph 7 of respondent’s pleading. In particular. counsel contended that no evidence was led as to how the respondent’s vendors (Dr. F. I. C. Ezigbo and A. O. Chikwuelue) derived their rights to sell the property in dispute. According to him, the said vendors purported to have sold “property which was not their own.” In reply, respondent’s counsel submitted that those paragraphs (4, 5, 6 and 7) had been impliedly admitted by the appellant in paragraph 2 of his pleading which reads thus:-
“2. The defendant is unable to admit or deny paragraphs 4, 5. 6 and 7 of the Amended statement of Claim but puts the plaintiff to the strictest proof of the averments therein contained. The defendant will, however, with reference to paragraph 7, state that the averments therein amount to a fiction set up for the purpose of this case.”
Referring to the above-quoted plea, respondent’s counsel submitted that it amounted to admission by implication and as being not sufficient denial to raise an issue needing proof at the trial. In this respect, attention was drawn to the well-known case of Messrs. Lewis and Peat (N. R. I.) Ltd. v. A. E. Akhimien (1976) 7 S.C. 157. Counsel further submitted that at best, the said plea was a defence of “confession and avoidance” and that as such, the onus was on the appellant to prove what he had confessed but tried to avoid:
See Shell B.P. Ltd. v. Adebi & Ors. (1974) 1 All N.L.R. Part 1 at pages 17/18. But appellant’s counsel countered that even if the said averments (in paragraphs 4 – 7 of respondent’s pleading) were admitted, the facts therein, being in the nature of customary law and practice, ought to have been strictly proved by evidence and not by admission. I am unable to agree with this latter proposition because’ the essence of an admission in pleadings is to dispense with the proof of the fact so admitted, thereby saving the trouble and expense of producing evidence in proof thereof.
My own view on the above issue and the arguments of both counsel thereon is that the entire pleadings of the parties have to be considered before a decision can be reached as to whether certain facts have been admitted, without the need for proving them, or whether they have impliedly been denied, thus requiring to be proved: See the case of Ramonu Atolagbe v. K. O. Shorun (1985) 1 N.W.L.R. 360 at 371.
In the case under consideration, it appears apparent from the appellant’s pleading that apart from paragraph 2 thereof, quoted above, there is no other reference in the rest of the said pleading to the facts averred in the aforesaid paragraphs 4, 5, 6 and 7 of the respondent’s pleading. On the contrary, appellant seemed, by the rest of his pleading, to have accepted the background history of the disputed property. He admitted that the late Ezigbo was the owner in possession of the said entire property. Also admitted were the facts that Ezigbo fled from same during the civil war and that he (appellant) moved therein with his family without anybody’s permission. It is significant that appellant was at one with the respondent about the taking over of the property by the Rehabilitation Committee. It was during the management of it by the said Committee that appellant became a tenant therein. Finally, he agreed that the late Ezigbo returned to Uromi after the war and, according to his case, it was then that his interest, if any, in the disputed property arose.
Arising from all the above, there can be no doubt that on the pleadings, appellant was not concerned with the origin of the property in question. Indeed, he did not trace his interest beyond the point when the late Ezigbo returned after the war and offered it for sale. Thus, the main contest between the parties, as clearly defined by their pleadings, was as to how each of them derived his interest, after the civil war, from whoever had the right to own and possess the disputed property up to that time. Relevant to the aforesaid contest between the parties was the claim of the respondent, as framed in his writ. Principally, he was asking to be declared the person entitled to apply and be granted a customary and/or statutory right of occupancy. A strict legal title is not necessarily the only qualification for the required declaration. Long possession, as in the case put forward by the respondent, either by himself or through his predecessors-in-possession, can also suffice. Under the Land Use Decree of 1978 (section 1) “all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerian…”
It is the Military Governor that has the powers to grant or refuse statutory rights of occupancy to any person (section 5). He can grant a certificate to that effect to any person, including an occupier of land under a customary right of occupancy (section 9).
The implication of all the above is that the respondent should be entitled to his claim for the declaration sought if he could prove his occupation or that of his predecessors-in-possession in respect of the disputed land. But he still has to apply to the Military Governor of the State for the appropriate certificate which may be granted or refused. 1 do not agree that, on the pleadings, the respondent should prove the bases of his right to occupation as averred in paragraphs 4, 5, 6 and 7 of his pleading which were impliedly admitted by the appellant. By the said averments, occupation of the property in dispute was traced to 1947. There was sufficient evidence, accepted by the trial judge, that thereafter the property was occupied by Ezigbo until the civil war broke out in 1967. Also accepted was the evidence that after the civil war in 1970 and up till 1979, appellant was occupying the property as caretaker of the respondent’s transferrors.
Based on all the above, I hold that the facts pleaded and the evidence adduced thereon at the trial justifiably supported the decisions of the learned trial judge whereby the respondent’s entire claim was granted. I may add that on the issue of the damages for trespass awarded against the appellant in favour of the respondent, there was also sufficient evidence to support the continued possession, in law, of the respondent’s transferrors. The respondent, as transferree, was entitled to the benefit of that continued possession. See the case of Lord Advocate v. Young (1887) 12 A.C. 544 at 556 and that of Mogaji & Ors. v. Cadbury Fry (Export) Ltd. (1972) 1 All N.L.R. 81 at 88. From the moment the appellant failed to vacate the disputed property as requested by Ezigbo and Chikwuelue (to whom he was caretaker, as found by the trial Judge) and as later requested by the plaintiff/respondent, he (the appellant) became a trespasser.
It must follow from the foregoing that all the grounds of appeal argued on behalf of the appellant have failed and they are accordingly hereby dismissed. Consequently, the judgment of the High Court, sitting at Ubiaja in Bendel State, delivered on 27th June 1984 is hereby affirmed in its entirety. The respondent is entitled to the costs of this appeal which I fix at N200.00.
Other Citations: (1986) LCN/0025(CA)
