Archibong Ekpanya V. Grace S. Akpan & Ors (1988)
LawGlobal-Hub Lead Judgment Report
UWAIFO, J.C.A.
It seems to me two main issues arose for a decision in the court below. The first is the correct procedure to be taken when a defendant decides not to call evidence in a civil case. In this particular case that will turn on the proper interpretation to be given to or the view to be taken of relevant court rules. The second is whether the plaintiff adduced sufficient evidence upon which the court could pronounce him the owner of the land in dispute and also whether he granted a lease of it to the defendants as Landlord relying on his alleged title thereto. The case was tried by Nkop,J.,sitting at the Uyo High Court. On 9th January,1985,he decided that the plaintiff failed to adduce sufficient evidence under Section 136(1) of the Evidence Act in order that any burden may shift to the defendants.
The plaintiff, now appellant, has attacked that decision. His counsel, Obong Ukot, has with extreme generosity in the advancement of argument done so in an elaborately presented Appellant’s Brief of Argument and Reply Brief. He did more than that. In oral argument before this court, he addressed at length. The Appellant’s Brief covers 35 foolscap pages typed double-line spacing and the Reply Brief takes 12 pages. Although the respondents’ counsel was not in court at the hearing of the appeal, the Respondents’ Brief of Argument filed by him earlier fill 28 pages. This is a case in which three witnesses testified and the entire evidence is in 12 pages of double and half line spacing.
There is no doubt that Obong Ukot was motivated by a desire not to leave out any conceivable argument in pursuing the appeal. I have gone through the entire proceedings and Briefs of Argument and had the advantage to listen to the oral argument in court. I must say with respect that Lord Loreburn, L.C., would have been disturbed, certainly with a sense of reproach – reproach on account of the love of the minutiae displayed -in the way this appeal was presented, if with far less to consider in the case of Addis v. Gramophone Company Limited (1909) AC 488 at 490, the Lord Chancellor was constrained to say in a sense underlain with indignation: “…it is difficult to imagine a better illustration of the way in which litigation between exasperated litigants can breed barren controversies and increase costs in a matter of itself simple enough.” The only comfort perhaps I derived in reading Obong Ukot’s Briefs was the high level of argument (sometimes abstract) and the paragon of language demonstrated therein.
I imagine the respondents’ counsel felt some compulsion to be detailed in his Brief (although he need not have) in order not to be left with a sense of disadvantage.
The claim by the plaintiff before the lower Court was for:
(a) A declaration of entitlement to a statutory right of occupancy over a piece of land situate at Ikot Ekpene Road, Uyo.
(b) The sum of N840 lease rent per annum from 1981 until judgment.
(c) Cancellation of the lease of the said land. The plaintiff claimed in his statement of claim to have bought the land in question from Robert Udo Akpan and Moffat Udo Ekong.
Although Robert Udo Akpan testified that he sold land along Ikot Ekpene Road when he was a young man, to the plaintiff, he himself did not disclose in any manner how he came to own the land he sold. He did not give the size of the land nor how much the plaintiff paid him, nor who witnessed the sale transaction.
The plaintiff himself in his evidence, contrary to his pleading, said he bought the land from the people of Ikot Ntuen Oku and gave their names as Etim Ituen, Moffat Udo Ekong and Robert Udo Akpan. It will be observed that Etim Iwen was not mentioned in his pleading. He did not say when this transaction took place, who witnessed it, the extent of the land at the time he bought it and how much he paid therefor. It was a portion of this land the plaintiff said he leased in 1974 to one S.A. Akpan, now late. The defendants are the beneficiaries of late S.A. Akpa’s estate. The 1st defendant is the widow while the 2nd and 3rd defendants are his daughter and son respectively.
The evidence is that S.A. Akpan built a warehouse on the land. After his death in 1980, his said beneficiaries built a house on a portion of it. It is said that they even leased another part of the land claimed by the plaintiff to one Alphonsus Udo who has erected a cold store on it.
The plaintiff claims in his evidence that Late Akpan paid him rent of N840 per annum until he died in February, 1980. When he was confronted in cross-examination with a letter written in June, 1982 through his solicitor asserting that the said Akpan paid rent in 1979 in advance up to December, 1982, the plaintiff had no plausible explanation except to say in re-examination “Since my lawyer had written so I have nothing to say. I take it as such, but I know it was 1980.” A witness called by the plaintiff testified that he introduced Late Akpan to the plaintiff to take a lease of the land from him.
The statement of defence does not disclose how S.A. Akpan came to be on the land in question. But it denies that the plaintiff is the owner of the said land and any knowledge of a lease transaction between the plaintiff and the said Akpan. It however, claims that Akpan was at all times in lawful and peaceable possession of the entire land in dispute. Throughout, there is no document or any memorandum in support of the said lease or even of the alleged ownership of the plaintiff. Apart from the assertion of the alleged lease, there is no shred of evidence, however tenuous, that the plaintiff at any time exercised any act of possession over the land.
On the strength of the available evidence tendered before the court by the plaintiff, counsel for the defendants indicated that he was going to rest on the plaintiff’s case. He, however, later changed his mind and said he would make a no case submission. For the purposes of the present case it is my view that it would make no difference whichever in fact he did. But for the sake of completeness of information, it was a no case submission he did make.
The plaintiff in his five grounds of appeal complains about
(1) The failure to comply with Order 42 of the High Court Rules of Cross River State (Cap. 51).
(2) The applicability of the Statute of Frauds 1677 which he said had been long repealed.
(3) The fact that there is no distinction between “a no case submission” and that of “resting on the case for the plaintiff” which he alleged the Judge wrongly drew.
(4) The error in applying Section 145 of the Evidence Act.
(5) The error in ordering a refund of money by the plaintiff when the defendants did not counter-claim for it.
The questions for determination were copiously stated in 14 paragraphs along the direction of the grounds of appeal canvassed. But as regards the alleged repeal of the Statute of Frauds 1677 in the Cross River State, that was not pursued either in the questions for determination or in argument. I take it that that aspect of the complaint was abandoned. I have myself not found any law of the Cross River State or one applicable therein which repealed the Statute of Frauds. Its provisions are therefore taken to be in force.
I would like to regard the main issues for determination as only two, namely:
(a) Whether there was such a procedural irregularity in the course of making a no case submission in this case as to vitiate the proceedings.
(b) Whether there was any evidence of probative value satisfying Section 4 of the Statute of Frauds 1677 to give an enforceable action to the plaintiff which the defendants would be required to answer. That would, of course, carry the implication whether there was sufficient evidence adduced by the plaintiff.
In the Appellant’s Brief of Argument, counsels submit: “Resting on Plaintiffs case and making a submission of no case are one and the same thing when the correct procedure is followed, that is, when the defence is put to its election. They mean that the defence has lost its right to adduce evidence, if the ruling is against the submission.” That, in my view, needs further explanation. When a defendant intends to make a no case submission he will need to elect whether if the ruling is against him, he will call evidence. The Judge will need to be satisfied of a clear intention not to call evidence. Once that is done, the defendant will not be allowed to call evidence. But the Judge has a discretion whether or not to press for a clear statement of that intention. It seems from the state of the authorities that in the discretion of the Judge a defendant, who made a no case submission under circumstances which were not definite whether he intended thereafter to call evidence, will not lose his right to adduce evidence thereafter. But in the case of resting on a plaintiff’s case, there is no question of election. The fact that the defendant decides to and does rest on the case of the plaintiff puts an end to the matter. The court will be entitled to and must consider the evidence in all its ramifications as it would do in a fully canvassed case (but in a one-sided manner as there is no evidence from the defendant), resolving thereby the issue of credibility of the plaintiffs witnesses.
On this issue of the procedure in “a no case” or “resting on the plaintiff’s case”, it is my view that in the Cross River State, the provisions of Order 42 rules 4 and 6 apply. They appear to me quite simple. They read as follows:
“4. When the party beginning has concluded his evidence, he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read); and if answered in the negative, he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative he shall wait for his general reply.
- If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by the statement of the other party of his intention to call evidence.”
(Emphasis mine).
It will be seen that the plaintiff who begins has a duty to ask the defendant under rule 4 if he intends to call evidence. If he does so, he expects a direct answer from the defendant. If the answer is in the negative, the plaintiff shall be entitled to sum up the evidence and address or comment on it. Rule 6 shows that in such a situation, the defendant shall have the last word as the plaintiff shall not be entitled to reply. But if, of course, the plaintiff was misled by the statement made by the defendant and so was not initially given the opportunity to sum up, he shall be entitled to do so thereafter. The plaintiff in the present case did not ask the defendants whether they intended to call evidence. The record of proceedings shows that.
But from what counsel for the defendants is recorded to have said there was perhaps no need for the plaintiffs counsel at first to ask for the information envisaged under Rule 4. Counsel for the defendants had earlier said he would rest his case on the plaintiff’s case. Later, however; he indicated that he was going to make a no case submission which the court permitted. At that stage it was, in my view, open to the plaintiff’s counsel to ask if the defendants intended to call evidence in case the ruling went against them. That is the procedure for putting the defence on its election.
The Judge should generally refuse to rule on a no case submission by the defendant unless he makes it clear that he does not intend to call evidence: see Laurie v Raglan Co. (1942) 1 KB 152 CA. But the Judge has a discretion whether to refuse or not, and if he does not put the party to his election whether to call evidence or not, the defendant retains his right to call it if his submission is overruled: see Young v Rank (1950) 2 KB 510; Storey v. Storey (1960) 3 All ER 279 CA. A submission of no case may be made either if no case has been established in law or the evidence led is so unsatisfactory or unreliable that the court should hold that the burden has not been discharged: see Yuill v. Yuill (1945) P.15.
There was in this present case no election. Let us then suppose that the plaintiff who should have immediately been entitled to sum up at the close of his case was prevented from doing so because of some mistake or misunderstanding. The question is, was he in the end denied less than he would have been entitled to? I cannot see that he was. He would have been entitled to sum up the evidence and comment on it only once in any event so long as the defendants decided to make a no case submission. He did in fact sum up the evidence and comment on it. Again, the defendant in a no case submission has the last word to sum up the evidence and comment on it. That was exactly what happened here.
The plaintiff now complains that there was this non-compliance with the procedure and that that affected the case to the extent that the judgment ought to be set aside. This is completely untenable. It is not every procedural irregularity which affects the validity of proceedings. There was no irregularity here which can be described as anything like grave. If there was any defect in the procedure at all, it is idle to imagine that it was fatal. In the often cited case of Gabriel Madukolu & ors v. Johnson Nkemdilim (1962) 1 All NLR 587 at 596, Bairamian F.J., said:
“If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity… A defect in procedure is not always fatal …”
Again, in Sonuga & ors v. Anadein (1967) NMLR 77 at 79, the Supreme Court per Lewis, J.S.C. said:
“In the appeal before us, the question appears to be, is it right for the defendant to take advantage of an irregularity he had himself accepted and had acted on it, without any harm done to him? We think it is now too late for him to raise an objection.”
I am clearly of the view that the plaintiff cannot rightly complain that the provision, of Order 42 rules 4 and 6 were not complied with and that he suffered any unfairness in the way the procedure in the no case submission was conducted. From the totality of the case, no harm whatsoever was done to him thereby.
The other issue concerns Section 4 of the Statute of Frauds, 1677. It provides as follows:
“4(1) No action shall be brought to charge any person upon any contract or sale of lands tenements, or hereditaments, or any interest or concerning them, unless either the agreement or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or some other person by him lawfully authorised.
(2) This section …does not affect the law relating to part performance…?
The Judge considered this provision very carefully and held, rightly in my view, that the evidence adduced by the plaintiff was of such a nature that he could not enforce any right in relation to this land in court.
The evidence of the plaintiff is that the lease agreement with Akpan was oral. The duration of the lease was not stated nor was the extent of the land leased.
It is the law that a contract for any disposition of land,such as a lease, does not come into existence until a final and complete agreement is reached between the parties on its essential terms: see Rossiter v. Miller (1878) 3 App. Cas. 1124 at 1151 per Lord Blackburn. This is so even if it was made orally. The essential terms upon which there must be evidence of an agreement are: the parties, the actual extent of the property, the rent, the length of the term and the date of commencement: see Harvey v. Pratt (1965) 2 All ER 786 at 788 per Lord Denning. The extent of the property in this case, as I said earlier, is not stated; the date of commencement of the lease in 1974 is not known; the length of the term was not given. Can it, therefore, be said that there was evidence upon which the plaintiff could succeed that he entered into a lease agreement with the defendants’ father? I think not.
But assuming there had been a valid oral lease, the effect of the provisions of Section 4 of the Statute of Frauds is to preclude the plaintiff from enforcing the said lease in court. The memorandum required must be unequivocally referable to the land in question. It must also contain all the essential terms and any other special terms deemed important by the parties: see Tiverton Estates Ltd v. Wearwell Ltd. (1975) Ch. 146 at 161; (1974) 1 All ER 209 at 219.
The doctrine of part performance cannot also avail the plaintiff here. Part performance can hardly arise in the circumstances as the plaintiff would first need to show his right to the landlordship; in other words, his ownership of the land in question. That is very much in contest here and the plaintiff has not succeeded in this.
Furthermore, as said in Cheshire’s Modern Law of Real Property, 12th Edition, page 125, “Since the basis of the doctrine of part performance is that the plaintiff, having altered his position on the faith of the contract, acquires an equity against the defendant, it follows that the part performance must be by the plaintiff.” (Emphasis mine).
Therefore, for the plaintiff to be able to rely on part performance, he must be the person who has been let into possession of land and allowed to alter his position for the worse by carrying out acts in performance of the contract. Equity then come to his aid arising from the changed position in which he finds himself: see Caton v. Caton (1866) 1 Ch. App. 137 at 148 per Lord Cranworth; Maddison v. Alderson (1883) 8 App. Cas. 467 at 475 per Lord Selborne. The present plaintiff is surely not in that situation to be able to call equity in aid.
The Learned Judge certainly gave adequate consideration to the issues before him and came to a conclusion in respect of the main issues that cannot be faulted. In the result, the plaintiff did not adduce any probative evidence worthy of supporting his claim and even if all he said were true, his action was unenforceable by virtue of the provisions of the Statute of Frauds 1677. The Judge was obviously right in his application of Section 145 of the Evidence Act on the state of the evidence. The defendants were shown to be in physical possession. The plaintiff was unable to prove title to the land in question.
The defendants’ possession in the circumstances raised a presumption of ownership which the plaintiff could not rebut: see Da Costa v. Ikomi (1968) 1 All NLR 394; Aikhionbare & Ors v. Omoregie & Ors (1976) 12 SC 11 at 43. The appeal therefore fails on the two major issues I stated previously.
The only other matter remaining to be considered is the order made by the Judge for the refund of the sum of N2,000 which the defendants were made to pay to the plaintiff. The N2,000 was paid by the defendants when the plaintiff put pressure on them and when they eventually found that he instituted this action. Such payment,of course, did not in any way constitute an acceptance of a lease either by themselves or their predecessor-in-title, namely, Late S.A. Akpan. In law, it appears that it was money paid for no consideration. But the defendants did not counter-claim for it in this action.
It is trite law that the Court should not grant what was not asked for or claimed by a party to an action: see Kalio & Ors v. Daniel-Kalio (1975) 2 SC 15. The learned Judge was therefore in error to have made an order for the money to be refunded by the plaintiff. The appeal against that order accordingly succeeds. I assess costs in this appeal after due consideration of all the issues at N400.00 in favour of the defendants/respondents against the plaintiff/appellant.
Other Citations: (1988) LCN/0051(CA)
