Ayoade a. Adewuyi & Others V. Andrew Ajuko Odukwe (2000)
LawGlobal-Hub Lead Judgment Report
NZEAKO J.C.A.
In the suit filed on 23rd November, 1992 at the High Court of Lagos State which came before B.O. Martins J., the plaintiff had originally claimed against the 1st defendant only, a declaration that he was the person entitled to the statutory right of occupancy to a piece of land at No.2 Obasa Street Anifowoshe, Ikeja, N500 special and general damages for trespass and perpetual injunction restraining the defendant, his servant, agents etc, from further trespass.
Pleadings were much later exchanged by parties after much delay by the Defendant, who caused a rehearing of the suit. The matter then proceeded to retrial. Following certain developments after the suit was being heard, the 2nd defendant got leave of the Court to be joined as 2nd Defendant, and the plaintiff amended his statement of claim. His claim then had new paragraphs 2 and 3 and now read as follows:
The plaintiff claims against the defendants:
“1. A declaration that the plaintiff is the person entitled to the statutory right of occupancy to all that piece or parcel of land situate, lying and being at No.2 Obasa Street, Anifowoshe, Ikeja and more particularly described and delineated on survey Plan No. ESL/A3273/89 dated 10th November, 1989 and drawn by S.O.A Ifowodo licensed surveyor.
- An order setting aside the purported sale in March, 1994 Niger land Ltd., Kingsley Ijoma and Mrs. Elizabeth Dumuje of the land, the subject matter of this action, to the 2nd defendant.
And all documents purportedly executed by them to that effect while this suit filed in 1992 is pending is unconstitutional, null and void having regards to the provisions ,of:
(1) Constitution of the Federal Republic of Nigeria 1979;
(2) Land Use Decree 1978; and
(3) Other existing laws.
- An order of specific performance directing Nigerland Ltd., Kingsley Ijoma and Mrs. Elizabeth Dumuje to themselves, servants or agents or any person(s) howsoever and by whatever name called to execute all relevant documents in favour of the plaintiff, relating to the land subject matter of this action described in (ONE) above.
- The sum of N500.00 (Five Hundred Naira) being special and general damages for trespass committed by the 1st Defendant his agents, servants and/or privies on the said land.
- Perpetual Injunction restraining the 1st defendant by himself, servants, agents and/or privies howsoever called from further trespassing on the plaintiff land.”
The case was again reopened on the application of the 2nd defendant.
I have set out the claim in full because of the issues arising there from in the appeal. At the conclusion of the trial, the learned trial Judge, on 4th December, 1996, entered judgment for the plaintiff. Being dissatisfied, the 1st Defendant who is the appellant in this appeal, appealed to this Court.
The appellant filed 8 grounds of appeal and each party filed its brief of argument. Counsel for the appellant materially settled 4 issues for determination which appeared in his brief thus:
Issues for Determination
“2.01. From the 9 grounds of appeal filed by 1st Defendant at pages 338 to 348 of the records, grounds 1 and 2 are grounds against interlocutory decisions. Issues on these will be suspended until application for extension of time to file these grounds outside the 14 days permitted under Section 25(2)(a) of the Court of Appeal Act 1990 is granted by this Honourable Court of Appeal.
2.02. Whether from the pleadings of the parties, the totality of evidence adduced at trial (both documentary and viva voce) the plaintiff/respondent has discharged the onus of proof necessary to enable respondent secure all the reliefs claimed by him.
Grounds 3, 4 and 9:
2.03. Whether the defence of lis pendens has been properly raised and adjudicated upon in this action more so when the sales made during the pendency of this Action was not affected by any of the parties whose civil rights before the Honourable Court is being determined.
Ground 7:
2.04. Whether the admissibility of document made to prove fact in dispute during the pendency of this Action without making the maker of such document available for vigorous examination in chief, cross examination, and re-examination and no grounds offered for non-production of the maker has occasioned substantial miscarriage of justice.
2.05. Whether it is proper for the learned trial Judge to suo motu make a case for any of the parties other than the one made before him and whether such a course has not occasioned a serious miscarriage of justice.
2.06. Issue/issues on grounds 1 and 2 will be formulated and incorporated in an Amended Brief of 1st Defendant when the permission stated in paragraph 2.01 is granted.”
Although in his brief the appellant’s Counsel stated that 9 Grounds were filed, there are only 8.
Counsel for the respondent, in his brief of argument, adopted the appellant’s issues.
At the hearing of this appeal on 10th October, 1999, the appellant and his Counsel, Mr. Oyewo were not present in Court. M.P. Ohwovoriole Esq. SAN (appearing with I.C. Ubosi Esquire and O. Ohwovoriole Esquire) for the respondent, urged the Court to deem the appeal argued since the briefs of argument were in. The Court deemed the appeal argued on the briefs filed.
Coming to Grounds 1 and 2 of the appeal referred to in paragraph 2.01 and 2.06 of the appellant’s issues for determination, it is to be noted that no issues came up in respect thereof in the brief. Appellant who had indicated that he was suspending issues on them till he obtained leave for extension of time to appeal against them, did not revert to them. In effect, grounds 1 and 2 would be deemed abandoned.
The effective issues argued therefore were 4 issues formulated on the remaining 7 grounds of appeal.
From the records the background to this appeal and relevant sequence of events has been extracted. They are important.
It turned out, that the plaintiff commenced this action on 23rd November,1992 by a writ of summons and also filed his statement of claim on the same date. The action was then only against the 1st defendant. He was duly served with the processes.
As at May, 1993, the defendant did not file a defence. This necessitated the plaintiff filing on 12/5/93, a summons for judgment or. in the alternative, praying to set down the suit for trial. Adjournment of the case due to the absence of defendant and his Counsel followed on 28/5/93 and the matter was adjourned to 16/11/93 for hearing. On that date the defendant and his counsel were again not in Court and trial commenced. Plaintiff gave evidence and called two witnesses and closed his case. Counsel M.R. Ohwovoriole Esq. addressed the Court and judgment was fixed for 25/11/93.
On 22/11/93, the defendant filed an affidavit of urgency, with a motion for change of Counsel, enlargement of time to file defence, arrest of judgment and leave to adduce evidence by the defendant. Recall of plaintiff and his witnesses for cross-examination was sought and obtained following this.
For, on the hearing date, Plaintiffs Senior Counsel Mr. Ohwovoriole decided not to oppose the motion which the Court duly granted on 24/11/93. Upon the defence being filed, on 24/11/93 the plaintiff also filed a Reply thereto on the same 24/11/93.
Trial reopened on 15th December, 1993, the plaintiff was recalled and cross-examined by Mr. Oyewo, the new Counsel for the defendant. He was re-examined; PW2 was also recalled and cross-examined by the defence Counsel. The 3rd witness said to be hospitalised could not be taken.
The defence called two witnesses. In the course of the testimony of DW2, a document sought to be tendered, was rejected and the defence obtained leave to appeal on this. He also applied for stay of further proceedings which was refused. Trial was further delayed.
Some other part of the sequence of events which I consider important is worth recalling here also.
It is, that after the processes were served on the 1st defendant after the commencement of the suit, his Counsel filed and argued applications to which the trial Judge gave Ruling. After that Counsel and the defendant began to absent themselves and, in fact never filed any defence.
This was the state of affairs, when in May, 1993, the respondent’s Counsel applied for hearing date by the motion earlier referred to above.
Also after the matter was reopened at the instance of the 1st defendant, his two witnesses who testified were one Land Surveyor who testified that Gabriel Nwosu, PW2 had employed him in 1992 to survey the land in dispute and also Gabriel Nwosu, himself, (DW2) who testified that he was the vendor of the 1st defendant/appellant in respect of the same piece of land in 1992.
Further delay in the trial occurred. For when hearing was to continue, it did not. The 2nd defendant purported to have purchased the same land which is the subject matter of this suit in 1995 while this suit, commenced in 1992, was pending. He then applied to be joined in the suit. He was duly joined, the plaintiff’s Senior Counsel not opposing.
The 2nd defendant also applied to recall once more, the witnesses.
The Senior Counsel for the plaintiff not opposing, the witnesses were duly recalled. The plaintiff’s Senior Counsel also conceded the matter on appeal by 1st defendant on the issue of admissibility of the defendant’s document, earlier mentioned. Plaintiff and his witness were again recalled and cross-examined by Mr. Fayemi for the 2nd defendant.
Trial was then to continue. For various reasons it did not. Appellant’s Counsel, Mr. Oyewo at a stage, on 5th July, 1996, informed the Court that his witness had travelled to the USA, outside the country. He wanted the case adjourned to November, but the Court refused. The 2nd defendant’s Counsel on his part, later, tendered from the Bar, 3 documents as his evidence, conceded by plaintiff’s Senior Counsel. The 2nd defendant did not testify orally.
Parties were to address the Court on 4/10/96 and 15/10/96. On both dates, Chief Oyewo for 1st defendant was not in Court. Plaintiff’s Senior Counsel had addressed on 4/10/96.
Counsel for 2nd defendant tendered his 3 documents in evidence.
On 15/10/96, Counsel for the 1st defendant, Oyewo filed a written address with a motion to reopen the case for address. Mr. Fayemi for 2nd defendant asked for time till 18/10/96 to type and file a written address. Mr. Ohwovoriole SAN for the plaintiff not opposing the matter was adjourned to 18/10/96 as requested by Mr. Fayemi.
The records show that the matter came up on 18/10/96 but did not proceed, and then on 28/10/96, when defendants and their Counsel were not in Court and on 1/11/96, when all parties were represented, as Mr. Fayemi held Chief Oyewo’s brief and the Senior Counsel for the plaintiff orally addressed, after referring to the written addresses of the 2nd defendants filed on 17/10/96 and 18/10/96 respectively. The matter was thereafter adjourned for judgment.
I have taken pains to follow and set out this sequence because of certain issues raised by the appellant in this appeal.
I will at this point set out the grounds of appeal: (without their particulars, running into pages).
Ground:
“1. The learned trial Judge erred in law in arbitrarily closing the case of the 2nd defendant/appellant thereby denying him fair hearing within a reasonable time, a constitutional right of the 2nd defendant/appellant under (S.33(6)) of the 1979 Constitution of the Federal Republic of Nigeria and thereby occasioned a gross miscarriage of justice.
- The learned trial Judge erred in law and on the facts in holding that the plaintiff/respondent has adduced oral evidence which established his claim against the 2nd defendant/appellant in terms of his writ and that the evidence was not rebutted by the defence which finding has occasioned a miscarriage of justice.
- The Honourable trial Judge erred when he stated on page 3 of the judgment that, ‘The plaintiff in this case called 3 witnesses including the plaintiff. The 2 defendants called no evidence.’
- The learned trial Judge erred in stating that the transaction of sale between Nigerland Limited and the 2nd defendant/appellant offends against the doctrine of Lis Pendis.
- The learned trial Judge erred in making a different case for the plaintiff other than that placed before the Court and thereby occasioned miscarriage of justice.
- The learned trial Judge erred in law in admitting and relying on inadmissible documentary evidence and relying on same thereby occasioning miscarriage of justice.
- The learned trial Judge erred in law in awarding judgment as contained in paragraphs 25(a), (b), (c), (d) and (e) of the 1st Amended Statement of Claim when the plaintiff led no evidence in support of some of those reliefs.
- The learned trial Judge completely muddled up the evidence before him which definitely affected his assessment and evaluation thereof especially when he said:
‘I wish to observe that Kingsley Ijeoma did not complete his evidence in Chief since then he has not been coming. He was giving evidence for 1st defendant.
It is also to be noted that Godwin Nwosu also gave evidence for the defendant.”
Let us now consider the issues for determination.
Issue No.1, questions whether from the pleadings of the parties, the totality of the evidence at the trial the plaintiff/respondent had discharged the onus of proof necessary to enable him secure all the reliefs sought.
In the view of the 1st defendant/appellant, he had not.
Learned Counsel for the appellant was quite right, when he submitted that the onus of proof lies on the plaintiff who must succeed on the strength of his own case, and not on the weakness of the defence, except where the case for the defence supports plaintiff’s case.
Therefore if the plaintiff fails to discharge the onus, the weakness of the defendant’s case will not help him and the judgment will be for the defendant. J.M. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337 – 338.
As we proceed to determine this appeal, we must bear the following principles in mind.
The plaintiff has the onus to satisfy the trial Court that he is entitled to the declaration sought and what is required to be proved depends on the circumstances of the particular case. So states Coker JSC in Elufisoye v. Samuel Alabetutu (1968) NMLR 298 at 302. See also Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393 (per Obaseki JSC at p. 429) following the decision in Kodilinye’s case (supra).
And so, where a defendant can show a better title to the land in dispute, the plaintiff cannot rely on mere possession, for the proof of good title would supersede possession. Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414.
Also where title is in issue, the decisive question of who proves better title has to be resolved. Aromire v. Awoyemi (1972) 2 SC 1 at p. 10 – 11. Also Adesanya’s case, (supra).
In an action for declaration of title such as this, there must be credible evidence of the identity of the land and the devolution of title to the plaintiff. Elias v. Omobare (1982) 1 All NLR (Pt.1) 70. It can be seen that there is no dispute as to the identity of the land in dispute which is at No.2 Ajasa Street, Anifowoshe, Ikeja. The land was originally vested in Kingsley Ijoma. Parties were agreed on this.
The only issue now is, who of the plaintiff or 1st defendant had better title.
Ownership of land may be proved in any of the five ways set out in the “locus classicus” Idundun v. Okumagba (1976) 1 NMLR 200 as follows:
(i) Traditional evidence; or
(ii) Production of documents of title; or
(iii) Acts of the party claiming title such as selling, leasing out all or part thereof, farming etc. Extending over sufficient length of time to warrant the inference that he is the true owner; or
(iv) Acts of long possession; or
(v) Proof of possession of connected or adjacent land etc.
It can be seen that the plaintiff had to lead evidence of being put in possession, of acts of ownership e.g., fencing or farming for years etc. If he has adequately met this requirement, judgment will be his.
Another Supreme Court decision, Balogun v. Akanji (1988) 1 SC 199 at 201, (1988) 1 NWLR (Pt.70) 301 may lend further support to the case of the plaintiff/respondent whose long possession and acts must be seen to provide the inference that he is the owner of the land.
Nnamani JSC in that case pointed out the principle in Ekpo v. Ita 11 NLR 68 about exclusive possession and acts of possession for so long which he noted as being a different and separate method of establishing title.
There are also the principles that in a civil case, the standard of proof is based on the balance of probabilities. Thus, a careful comparison between the evidence of the plaintiff and those of the defendant will help to determine which case is stronger. (per Uwais JSC in Balogun’s case (supra)).
Comparing the evidence of the parties in this case, it is my respectful view, my Lords, that the case made by the plaintiff is much stronger and that no evidence on the record effectively detracts from it. In such a case judgment ought to go to the plaintiff.
The evidence adduced by the plaintiff and his witnesses on which the Court below based its judgment appealed against was that Kingsley Ijoma sold the land in dispute to him in January, 1977. He issued a purchase receipt to him, Exhibit B. Ijoma put him in possession of the land. Plaintiff fenced the land thereafter, put a caretaker thereon who was farming on it.
The sale and purchase receipt, Exhibit B issued to the plaintiff by Ijoma was witnessed by Mr. Godwin Nwosu. Plaintiff was in possession of the land from 1977 without any interruption whatsoever till 1992 when the 1st defendant trespassed on the land. Plaintiff’s two witnesses testified at the first hearing corroborating his story. His first witness Oliver Udeze testified to being the one placed on the land in 1977 by the plaintiff and he took part in fencing it. He was farming on it from 1977 till 1992, when 1st defendant trespassed and he reported it to the plaintiff.
When recalled at the instance of the 1st defendant as earlier set out, both the plaintiff and this witness recounted the same evidence, adopting what they had earlier stated and confirmed them in cross-examination by Mr. Oyewo, learned counsel for the 1st defendant.
A third witness who earlier testified was not able to be recalled due to in health.
The plaintiff had also tendered plan of the land said to have been made by his surveyor, Ifowodo, and testified that he had building plan approved. He had receipt issued by planning authorities to him.
When again recalled as the records show at the instance of the 2nd defendant in 1996, the plaintiff and his witness again recounted all the above evidence. The land in dispute was known as 2 Obasa Street, Anifowoshe, Ikeja. This in fact was common ground. All parties were agreed on it. The identity of the land was not in dispute.
It seemed that the only dispute was who, of the three parties, the plaintiff or the 1st defendant or the 3rd defendant had title to the land.
Each party named Kingsley Ijoma as the person in whom the original title was vested. The plaintiff firmly asserted that Kingsley was his vendor and Godwin Nwosu witnessed the transaction. The 1st defendant said Godwin Nwosu was his vendor.
The plaintiff had also made two other payments for N10,000 and N110,000 to Ijoma for the land sometime in 1990 and got receipts – Exhibits B1 and B2. Each of the Exhibits B1 and B2 described the land in dispute as measuring 170 feet by 82 feet.
On the other hand, the 1st defendant did not testify. He called 2 witnesses. One was a surveyor who testified that he was hired to survey the land in 1992 by Nwosu. The other, DW2 was Godwin Nwosu himself whom the 1st defendant averred in his statement of defence, was his vendor, of the land in dispute in 1992. Nwosu testified that his own vendor was Kingsley Ijoma (who is plaintiff’s vendor), and that he Nwosu bought in 1974. It is to be noted that there was an affidavit in support of a motion filed early in the action by the 1st defendant’s counsel seeking to discharge an order of interim injunction made by the Court. In that affidavit, the 1st defendant’s deponent had shown that Kingsley Ijoma sold to Nwosu in January, 1977 – Receipts and documents Exhibits AAA1 – AAA3 were exhibited (see pages 38 – 41 of the records of proceedings).
It is to be noted also that Nwosu was in Court, as the records show, when the plaintiff testified on 15/12/93, naming him, Nwosu as the person who witnessed the sale to him the plaintiff by Kingsley Ijoma in January, 1977.
Significantly also, the records show that during his testimony, Nwosu admitted his signature as witness of Kingsley Ijoma to plaintiffs receipt Exhibit B, he identified also the signature of Kingsley Ijoma whom he said was his friend on Exhibit B. He said he sold to 1st defendant the land in 1992.
It must be stated at this point that the 1st defendant/appellant did not file a counter-claim with his statement of defence. The 2nd defendant led no oral evidence to prove his counter-claim and it was duly dismissed by the Court.
The pleadings of the plaintiff in this suit and the evidence of the plaintiff and his witnesses all along showed that the plaintiff was relying on three sets of events to establish his ownership, and possession of the land in dispute. They are:
(1) Payment of purchase price in Exhibit B, his purchase receipt as per his oral evidence and that of his two witnesses, first when the suit was not defended because the defendant failed to file any defence or to come to Court.
(2) Oral evidence of purchase and delivery of possession to him by his vendor Kingsley Ijoma.
(3) Acts of possession, in that he was in 1977 put in possession by his vendor he fenced the land, he, the plaintiff also placed a care-taker Oliver Udeze on the land and Udeze remained on it, cultivating it from 1977 to 1992 (for 15 years) when the defendant came on the land.
The other part of the evidence of 1st defendant’s witness Nwosu (DW2) that he was paid N300,000 by the 1st defendant in 1992 was countered by the plaintiff by evidence and a point of law.
When the 1st defendant filed his motion to discharge the interim ex parte order, supported by affidavit which I earlier referred to, the plaintiff replied by two Counter-affidavits numbered No. 1, and No.2.
No.2 was sworn to on 11/12/92 by Reverend Eddy Iyiola whom Nwosu in his testimony, named as his agent for the sale of the land in dispute to the 1st defendant in 1992.
Rev. Iyiola deposed that he did act as agent for Nwosu and got 1st defendant as buyer. The 1st defendant paid the agreed purchase price of N300,000, N280,000 in cash and N100,000 cheque.
Out of this, N10,000 came to him as commission and N10,000 went to Kingsley Ijoma (called the original owner) for witnessing the sale. The deponent swore that when he later discovered that the land did not belong to Nwosu, he advised Nwosu to refund the money to the plaintiff, otherwise he would report the matter to the police. He swore that the money was thus refunded (See p. 43 – 46 of the Records).
The plaintiff adopted this piece of affidavit evidence as part of his case which he relied on. Plaintiff’s point of law was that Nwosu or Ijoma as the case may be had no more title to pass to any of the 2 defendants.
Significantly, the 1st defendant did not testify at the rehearing which was at his instance, nor at the hearing, a third time at the instance of the 2nd defendant. It has earlier been stated that Mr. Oyewo for the 1st defendant said his witness had travelled to the United States of America.
For the 2nd defendant, J documents were tendered – Exhs. G – G2. He did not testify and did not pursue his appeal and the same was dismissed.
However, because, the appellant herein raised the issue that the evidence for the 2nd defendant was not evaluated by the trial Judge, as if it has any material bearing on the appellant’s case, we have examined these Exhibits. Clearly they have proved nothing relevant to the issues in this appeal.
Looking at them together with the pleadings and counter-claim of the 2nd defendant, upon which he led no other evidence in proof, one can only conclude that the averments which may not form part of the contents of the 3 Exhibits and any inference arising from the averments, must be deemed abandoned. These are the averments in paragraphs 2 and 4 – 19 and any inferences arising from any of them, unless admitted by the plaintiff.
Taking the Exhibits one by one:
Exhibit G is Certified True Copy (CTC) of Deed of Conveyance dated 16/2/77 registered as 82/82/1607 of the Lands Registry Lagos made by A.K. Disu as Attorney for Dr. Nnamdi Azikiwe, conveying piece or parcel of land known as and called “Onitsha Mansion Ikeja,” covering 1.426 acres shown on plan IKJ 95 edged red for the price of N80,000.
Exhibit G1: is Power of Attorney given by Nnamdi Azikiwe of Onitsha Mansion lkeja, Lagos State appointing K. Disu his Attorney to dispose of the piece of parcel of land known as Onitsha Mansions covering an area of 1.426 Acres, covered by Deed of Conveyance dated 4th February, 1965 registered as 55/55/812 of Lagos Lands Registry for N80,000 and to execute all conveyances and accept the sum and issue receipt.
Exhibit G2: is a CTC of Deed of Conveyance dated 4th February, 1965 registered as 55/55/81215. Lagos by which the Minister of Lands and Housing, Western Nigeria. on behalf of the Government of Western Nigerian re-conveyed to Dr. Nnamdi Azikiwe “All that piece of land lying and situate at Ikeja, comprising 1.426 acres on plan IKJ .95 attached to this deed.”
I have only bothered to set these Exhibits out to ensure that all issues raised in the appeal are looked into as this Court is wont to do.
Having done so, it is quite sufficient to point out that in none of these exhibits, was the land therein linked to the 2nd defendant who was asserting a claim concerning Dr. Nnamdi Azikiwe’s house known as “Onitsha Mansions, Ikeja” sold to Nigerland Ltd. in February, 1977 (note that the land in dispute was sold to the plaintiff in January, 1977).
There is nothing in the evidence on record connecting Kingsley Ijoma with Nigerland Ltd., only what the 2nd defendant averred but did not offer any testimony in proof viz that Kingsley Ijoma was a Director of Nigerland Ltd. and knew of Nigerland’s title.
In any event, no evidence having been led by the 2nd defendant in respect of his counter-claim, the learned trial Judge quite rightly, in my humble view, concluded that it had been abandoned and dismissed it.
It is in the face of all the foregoing facts that the 1st defendant/appellant complained, feeling that the plaintiff/respondent had not discharged the onus on him to secure the relief sought in his action. Has he not?
In his judgment, the learned trial Judge recounted the evidence adduced by the plaintiff and his witnesses (page 312 – 315 of the Records). He recounted all the events leading to conducting the plaintiffs case 3 times, recalling the witness at the instance of the 1st defendant/appellant and later the 2nd defendant. He recounted that Counsel for the 1st defendant was able to produce only two witnesses and said his witness, the defendant was out of this country. He dealt with the 2nd defendant.
The learned trial Judge further proceeded thus:
“I have adverted my mind to the evidence placed before me for consideration, the addresses of the 3 counsel and after careful consideration of the totality of the evidence before me, I wish to observe that Kingsley Ijoma did complete his evidence in Chief and since then he has not been coming. He was giving evidence for the 1st defendant. It is also to be noted that Godwin Nwosu also gave evidence for the defendant. It is to be noted that the 2nd defendant did not lead evidence in proof of his statement of defence and counter-claim. In the circumstance he is deemed to have abandoned the averments in his statement of defence and counter-claim. I wish also to observe the property in dispute was allegedly sold to the 2nd defendant in this case during the pendency of this suit by Nigerland Ltd., Kingsley, Nwosu and Mrs. Elizabeth Dumuje, this sale came into Clause of Lis Pendis which the courts have always frowned at.
In this respect I refer to the case of Bellamy v. Sabine (1857) 26 L.J. (Ns) Equity Reports 797 at page 803, where it was held: It is … a doctrine Common to the courts of both law and equity and rest … upon this foundation that it would be plainly impossible that any action or suit could be brought to a successful termination if alienation pendente lite were permitted to prevail.
See Adaran Ogundiani v. O.A.L. Araba and Barclays Bank Nig. Ltd. (1978) 6 and 7 SC p. 55 at pp. 78 to 79. In the circumstance the 2nd defendant has bought nothing. Having not offered evidence in respect of his counter-claim, the counter-claim of the 2nd defendant is dismissed. From the evidence before this Honourable Court, the evidence of the plaintiff outweighed that of the 2 defendants. See Mogaji v. Odofin 4 SC p. 91.
In this case the plaintiff has adduced oral evidence which established his claim against the defendants, in terms of his writ and that evidence is not rebutted by the defence, the plaintiff will be entitled to judgment. See Nwabuoku v. Ottih (1961) 2 SCNLR p. 232 (1961) 1 All NLR p. 487. See Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) p. 570 at p. 572. See also Omoregie v. Omigie (1990) 2 NWLR (Pt. 130) p. 29 at p. 39.
Upon the preponderance of evidence placed before me, I find the case of the plaintiff proved. Judgment is entered for the plaintiff in terms of his Amended Statement of Claim as contained in paragraph 25(a), (b), (c), (d) and (e) dated 6/9/95.
The 2nd defendant’s counter-claim against the plaintiff is dismissed for want of evidence.
Learned appellant’s Counsel had submitted that the appellant’s title was in issue. He was right in this submission by virtue of the decision in Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263.
But in the light of the evidence adduced by the plaintiff and his witness, is there any doubt that he clearly discharged that onus?
Learned Counsel for the plaintiff/respondent had urged on his behalf that he had done so, pointing out the evidence of purchase from Kingsley Ijoma shown in Exhibit B admitted witnessed by DW2 Nwosu who purports to convey the same and 15 years later in 1992 to the appellant.
He argued that the principles “Nemo dat quod non habet” applies to Nwosu and Ijoma, for the land having been sold and possession delivered to the plaintiff, none of them had property in the land to pass to the defendants including the appellant.
Counsel, I must state, is on firm grounds. See Morakinyo v. Adesoyero (1995) 7 NWLR (Pt. 409) 602, Where is the capacity of Nwosu to sell a piece of land which he witnessed the owner sell to the respondent in 1977? Even if the same land which was conveyed to him in 1974 or is it 1977 by the same Kingsley Ijoma, how come he allowed it to be sold to the respondent by the same Kingsley Ijoma in January, 1977? How come he acted as the witness of Kingsley Ijoma for the sale to the appellant in 1977 and did nothing.
Did the appellant, his witnesses and his counsel try to answer these questions? They surely did not. Yet, the onus is on the appellant to answer them. His life in this suit revolves on authentic answers to them.
Yet, I have no doubt from the evidence on record that the plaintiff/respondent clearly proved his title from Kingsley Ijoma, whose signature on Exhibit B, the 1st defendant/appellant’s witness, Nwosu DW2 identified with his own, on Oath.
Let me set out only some part of the evidence of the plaintiff at page 101-103 of the records which he kept adopting at the subsequent rehearing and further amplified. He said:
“It is along Obasa Street, Anifowose, Ikeja, Lagos. I have a survey plan in respect of the land in dispute in 1989. I can identify copy of the Survey Plan shown to me. Survey Plan ELS/A3273/89 drawn by S.O.G. Ifowodo just shown to me is the Survey Plan in respect of the land. Survey Plan put in received and marked Exhibit ‘A’.
In January, 19771 met Mr. Kingsley Ijoma who informed me that, he wanted to sell his land. Mr. Kingsley Ijoma took me to the land now in dispute. On seeing the land I became interested in it. We negotiated and we both came to an agreement to sell the place for N228,000. I paid the purchase price in three installments. The first one was N8,000:00 and he gave me receipt to that effect. In proof plaintiff produced receipt dated 22/1/77. On the 3rd May, 1990 I paid my vendor Kingsley Ijoma on two occasions totaling N120,000:00 on the same day 2 receipts both issued on 3/5/90 put in evidence and marked Exhibits B1 and B2.
Kingsley ljoma my vendor put me in possession in the presence of witnesses and told me that that is my land and that I am free to use it for whatever I want.
From 1977 to 1992 the total area of the land was fenced round and I employed servants and agents to be looking after the land. Oliver is one of the servants employed to look after the land. Oliver was farming and planting harvestable crops on the land. I also got an approval building plan No. IK/92/46537. Official receipt No. 72864 of 5/6/90 was issued to me. Between 1977 to 1992 November, no one disturbed my ownership and possession of the said land. However, 1992 on visiting the land saw Mr. Adeoye the defendant I then asked what he was doing and he told me that he has just paid for the land in dispute.
I quickly told the defendant that I have since bought the land and that I am the owner. I further told him that I have no interest whatsoever to sell the land in dispute, he should go quickly to demand for the refund of his money.”
This evidence cannot be said to have been controverted. What was the counter? Is it the evidence of Nwosu, DW2 earlier referred to? In deed that evidence of Nwosu supports the case of the plaintiff as given in evidence on 15/12/93 at the rehearing when under cross examination, the plaintiff said, at page 121 of the records:
“When I made payment Mr. Godwin Nwosu was present. My brother Mr. Mbakwe was there when made payment. Only Mr. Nwosu witnessed the document. Mr. Nwosu is now in this court. It is correct that I told the court that when I bought land I then fenced the land and I put a gate on the land. This was carried out in 1977.”
So also in PW2’s evidence in cross-examination by Mr. Oyewo at the rehearing of the suit, at the instance of the appellant, he said at page 126 of the records:
“I know Nwosu, he lives very close to that land. I do not know the numerical number of his house. I know Mr. Nwosu when he called the plaintiff to come and buy the land because Nwosu witnesses the transaction. I am the only person farming on that place that is Obasa Road on the land in dispute. We are the persons who built the fence after fencing I started farming on the land in dispute.”
DW2 Nwozo who testified for the appellant also at p. 129 stated that in 1984 he surveyed the land at the instance of Nwosu. There were fences on two sides of the land. Who put the fence there? Thus, the case of the plaintiff that it was in Kingsley Ijoma that No.2 Obasa Street or Road was originally vested, that the same was sold to him and he paid money in 1977 that Receipt Exhibit B evidencing the payment of money for the sale of the land to the plaintiff was made and signed by the said Kingsley Ijoma and witnessed by Nwosu, and that he fenced the plot after taking possession from Ijoma is clearly supported by excerpts from the testimony of 1st defendant/appellant’s witnesses.
The evidence from the plaintiff and his witnesses clearly prove the root of his title to the land in dispute that he paid money for the land, that he was put in possession and was there for 15 years exercising acts of ownership. To my mind, the plaintiff has established a legal right.
This can be seen, when the case as a whole is considered, and having regard to the case of the parties, as the Court was bound to do. See Commissioner for Works, Benue v. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407 at 442, per Karibi-Whyte JSC at p. 442. Again, it is settled law that the payment of purchase price coupled with being put in possession confers equitable title which enables a purchaser in possession to call for a document of title where applicable. Such title as acquired, in my respectful view is capable of defeating the claim of subsequent purchasers or even, adverse dealing with the land by the vendor. For, “Nemo dat quod non habet.”
See the case of Ogunbambi v. Abowaba (1951) 13 WACA 222, also, Registered Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (Pt. 61) 556; Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167 SC.
So it is in this case for the plaintiff. The plaintiff had been in possession. It is quite true that where a defendant can show a better title, the plaintiff may not rely on mere possession. But that has not been the case here. For the plaintiff, from the evidence on record there was preponderance of evidence in his favour.
Plaintiff did not adduce evidence of the payment receipts which were contrary to facts pleaded in his statement of claim, as submitted by the appellant. Having pleaded the sale and purchase, and payment, the issue of each part payment of the price need not be pleaded separately.
The Exhibits B1 and B2 were not wrongly admitted. In fact, while going through the records, I noted that it was the 1st defendant who first brought out these 2 receipts for N10,000 and N110,000 which he referred to and exhibited, in paragraph 4 of his Further Affidavit sworn to on 18/12/92 at page 71 of the Records and shown at p. 73. This affidavit was sworn early in the action, after the defendant was served the processes, ever before the first trial took place. Does it now lie in his mouth to seek to exclude them now? Even if wrongly admitted, they do not prejudice the defence.
The learned defence/appellant’s counsel also submitted that the learned trial Judge failed to evaluate or improperly evaluated the documents of the defendants placed before him. He said Exhibit F was first in time before Exhibit S, both from Kingsley Ijoma etc. He urged this Court to re-appraise the evidence as they do not touch question of credibility.
I would not hesitate to state that he was right.
For the evaluation of evidence is a duty which the law clearly places on the trial court and if it fails to do so, the appeal court has powers to do so. See Balogun v. Akanji (1988) 1 SC 201. (1988) 1 NWLR (Pt.70) 301. Woluchem v. Gudi (1981) NSCC 216; Folurunsho v. Adeyemi (1975) 1 NMLR 28; Akinola v. Oluwo (1962) 1 SCNLR 352, (1962) All NLR Vol. 1 (Pt. 2) 277; Ebba v. Ogodo (1984) 1 SCNLR 372, (1984) 4 SC 86 at 98.
In the process of ascertaining what the plaintiff was required to prove to succeed in his claim and whether he did so, we have already reviewed and evaluated the evidence of all the parties including the 2nd defendant’s 3 Exhibits tendered from the Bar and came to the conclusion that none of them whittles down the case for the plaintiff. The kinds of evidence led by both defendants do not exhibit such character as would detract effectively from the plaintiff’s evidence and that of his witness; tendered 3 limes in Court and substantially the same.
Issue No. 2:
As if fishing around for grounds of appeal and issues, the 1st defendant/appellant takes up the issue of “lis pendens” pleaded against the 2nd defendant. It is not clear to me, my Lords, how this affects the case of the appellant whose claim is different.
The 2nd defendant had appealed but did not pursue it. He filed no brief. The issue is not worth pursuing as the 2nd defendant would be deemed to have abandoned his appeal. At the appropriate time, the matter will be addressed together with its legal implications and application.
The manner the appellant pursued this issue did not however fail to raise the suspicion that he engineered the so called sale to the 2nd defendant. If he did, and was party to it, the doctrine will eventually catch up with him. As things are however, the matter must rest here without affecting the decision which we ought to come to.
Issue No.3:
Deals with the admissibility of the counter-affidavit of Rev. Iyiola. DW2 had admitted that Iyiola was his agent for the sale of the land in dispute to the 1st defendant who paid him a commission of N10,000 and Kingsley Ijoma N10,000 for witnessing DW2, Nwosu’s signature in the alleged sale of 1992, being challenged in the suit by the plaintiff. Rev. Iyiola deposed therein that all that money plus the purchase price had to be repaid to 1st defendant, when he Iyiola, discovered that his principal’s purported title to the land did not exist.
The appellant has in his counsel’s brief misrepresented the sequence of events and the circumstances of the filing of that affidavit.
The records show that it was filed in the course of the proceedings at the High Court, as clearly set out earlier, not before the suit was filed as stated in appellants brief.
As an answer to the 1st defendant’s affidavit, filed in these proceedings it qualifies to be used in these same proceedings and to be relied upon. The appellant and his witnesses have not rebutted its contents. That is the important thing.
The appellant complains that Rev. Iyiola ought to have been produced for cross-examination. Did he apply to cross-examine him? Surely not. Affidavit evidence is good evidence which is entitled to be given weight where there is no conflict – Nwosu v. Imo State (1990) 2 NWLR (Pt. 135) 668 at 718.
Learned Senior Counsel for the respondent had submitted that the appellant was aware of this affidavit but had not denied that there had been a total refund of the purported purchase price. Also Kingsley Ijoma whose signature is known to DW2, 1st defendant/appellant’s vendor who purported to have pure based from Ijoma, wrote to 1st defendant repudiating the transaction (See page … of the Records) Copy of this was sent to Rev. Iyiola.
All of the foregoing have not been rebutted. It is too late in the day to pick holes on the evidence which the 1st defendant failed to rebut at the hearing of his motion in 1992 and at the trial subsequently. The affidavit, Exhibit C does not offend Section 91(3) of the Evidence Act as submitted by the appellant’s Counsel, for Rev. Iyiola, the maker cannot by any stretch of imagination be termed an interested party to this suit, nor did he make the Exhibit in anticipation of his involvement in the dispute. Rather it was made in Reply to the 1st defendant’s affidavit of 4/12/92 in support of his motion dated 3/12/92.
In the light of the foregoing I would not regard the admission of the document as wrong or as occasioning any miscarriage of justice. No one stopped the defence from replying to it at the time it was used in Court at the hearing of the motion or applying to have the Reverend gentleman for cross-examination then or at the rehearing if the defence thought it important, as they did with the plaintiff and his witnesses who were recalled.
We would therefore answer issue No.3 in the negative. Appellant’s case in respect thereof fails.
Issue No.4.
In this issue, the appellant complains that the trial Judge suo motu made a case for the parties other than those made before him and this occasioned miscarriage of justice. Three areas were identified.
It is certainly the law as submitted by Counsel for the appellant that a Court of justice has no powers to decide matters not before it or to make a fresh case for the parties. Did the learned trial Judge do so in this case?
It is to be noted that it is not every slip made by a Judge in a judgment is fatal to the cause of justice. Therefore, unless a slip actually affected the decision appealed against, it will not result in the appeal being allowed on grounds of misdirection or on-direction. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 668 at 717 (per Nnaemeka-Agu JSC).
Also Onojobi v. Olanipekun (1985) 11 SC (Pt.11) 156 at 163; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616 at 626.
Bearing the foregoing in mind, the 3 areas complained of are being examined to see if injustice has been occasioned.
On the issue of the building plan raised by the appellant, the premise on which it is based is misleading and erroneous.
It is clear to me, going through pages 311 – 315 of the records, that the learned trial Judge did not in that part of the judgment make a finding of fact. The reference in the judgment to the plan occurred where he was reproducing the pleadings and oral testimony as given by the plaintiff and recounting the processes. He was not then evaluating the evidence as the records show. The Judge was doing so from page 312 and then continued at p. 313…;
“The plaintiff was put into possession by Kingsley ljoma, his vendor in 1977 January. From 1977 to 1992 the plaintiff was in peaceful and undisturbed possession. Between 1977 to 1992 he had fenced the land, he employed agents and servants to be looking after the land for him. Oliver was farming on the land, planting harvestable crops. He has an approved Building Plan which is No. IK92/465/37, he has official receipt issued to him November72864 of 5/6/90.”
He continued the recounting of the testimony to the end of page 313. Then on page 314, he recounted the evidence of PW 1, Oliver Udeze and PW2 Sidney Odukwe. Then he concluded the story thus:
“After the plaintiff had concluded his case… and before judgment, 1st defendant now came in through his learned counsel Chief Oyewo sought to reopen the case. The learned Senior Advocate agreed with him, the plaintiff was recalled and likewise the 1st PW Oliver Udeze:”
Clearly then the portion of the judgment complained of in this issue was no finding of fact. It was evidence given in Court. The finding of fact or appraisal of evidence started on page 315 of the Records.
The portion of the judgment complained of cannot be said to be perverse, not being a finding of fact. This complaint fails.
On the issue of non-production of Mr. Sidney Mba Odukwe, plaintiffs second witness at the first trial of the suit, before the 1st defendant applied for retrial, it also seems to me that the basis of the complaint is not justified. The Court did not make any case for the plaintiff. The records bear out the truth of the matter, not in the misleading manner it was presented in the brief of argument for the appellant.
At the rehearing, the plaintiff and PW1 were produced and duly cross examined. Mr. Sidney Odukwe was not then available and Counsel for the plaintiff applied for an adjournment as the records show because his, “last witness was admitted at Eko Hospital” not being able to produce him subsequently, he closed plaintiffs case and the defence started without raising any issue on the failure to bring the sick man.
In the maze of the various complaints raised by the appellant, this Court must not lose sight of the fact that this witness testified on oath at a time when for no reason shown to the Court, the 1st defendant failed to file his defence or diligently attend Court to enable the suit to be heard.
I dare say that his evidence which was to buttress the evidence of the plaintiff because the witness was present when Ijoma sold the land to plaintiff being on oath and on the record can be looked at by the Court. The Court only has to be wary of the weight to be attached to it in view of the fact that he was not cross-examined. But his evidence is not the only evidence of the purchase and payment by the plaintiff.
In fact, no evidence on record controverted the purchase of the land from Ijoma, witnessed by Nwosu who was DW2.
I cannot see how Sidney Odukwe’s evidence or his absence at the rehearing prejudiced the defence or caused miscarriage of justice in the face of all other evidence, establishing the facts for which he testified.
It is true however that the learned trial Judge stated at p. 315 of the records that:
“It was not possible again to get the 2nd PW Sidney Mba Odukwe. Reason for this he has gone to his native home and became sick and he was also very old.”
Much of this is borne out by the records. For Counsel for the plaintiff had, at the 3rd hearing of the case, this time which was undertaken at the instance of the 2nd defendant, said in open Court:
“This witness is very sick. He has been taken to his home town. I did tell my learned friend about this situation.”
No counsel protested or denied knowing of this. No one raised the issue again. I must admit however that the last few words of the learned Judge in the statement set out above that “he was also very old” was not borne out by any statements on record. Yet, it must be noted that that witness had testified before the Judge and he was in a position to notice and observe him and could note that he was “very old.” Did that statement in anyway portray the Court’s decision as perverse? The answer is clearly no. Nor does it refer to a vital or critical issue in the case. It cannot at all amount to the Court making a case or raising an issue for a party in the suit, as urged on us by the appellant. This part of issue No. 4 also fails.
The third part of the judgment complained of relates to where the learned trial Judge said:-
“I wish to observe that Kingsley Ijoma did not complete his evidence in and since then, he has not been coming. He was giving evidence for the 1st defendant. It is also to be noted that Godwin Nwosu gave evidence for the defendant.”
It is correct that Kingsley Ijoma did not testify and that the reference to him in the above passage was incorrect. But Godwin Nwosu testified.
How did the statement affect the case of the 1st defendant/appellant?
First, it seems to me that it was indeed a slip which could be detrimental, if it can be shown that its effect on the judgment was decisive. The Courts have held that not every slip in a judgment will lead to reversal.
Not even the appellant was able to identify how the comment of the Judge affected the decision against him. All that was stated in the brief for the appellant is this:
“The finding has no evidence to support it. It is perverse and calculated to seriously discredit the 1st defendant. It ought to be reversed.”
How? It was not stated.
It did not discredit appellant to the extent that the determination of the suit depended on it.
I have considered the effect of this obvious misstatement on the conclusions reached by the learned trial Judge in order to see whether without it the Court could still have arrived at the same decision as it did. This Court was invited by the appellant to evaluate the evidence before the Court below which he submitted, the learned trial Judge neglected to do, or under-evaluated. We acceded to that as above and having done so, we have been able to arrive at the decision that the plaintiff had proved this case, and that the preponderance of the evidence weigh more for him. That decision was reached without reference to that statement by the trial Judge complained of. We had entirely relied on the evidence on record. We cannot therefore say that, that statement prejudiced distinctly, the decision which the Court below or any Court would have reached, but for that, no miscarriage of justice can be attributed to it.
In coming to that decision, what was earlier assessed by this Court of the evidence of Nwosu and, the evidence of 2nd defendant, placed side by side with the evidence of plaintiff and his witnesses must be borne in mind. Placed on the imaginary scale (of justice), we found that plaintiffs case far out-weighed the defendant’s. That was so whether Ijoma testified or not and whether Nwosu concluded his testimony or not. There was no doubt that the original title to the land in dispute came through Kingsley Ijoma. Both parties were agreed on that.
There was no doubt about the identity of the land.
No appreciable counter to plaintiffs payment of purchase price, acts of possession for 15 years from 1977 to 1992, crowned by the fact that 1st defendant’s star witness and vendor Nwosu witnessed in writing the sale to the plaintiff of the same land by Nwosu’s alleged vendor, the same Kingsley ljoma in 1977 or is it 1974 as the defence claims at one time or the other. Altogether, 15 years passed, from 1977, before Nwosu himself purported to sell the same land to 1st defendant in 1992. Then 2nd defendant purported to buy the same in 1995 (without leading evidence in proof) while this suit was going on in the High Court at Ikeja, Lagos since 1992.
In the light of all this and more, outlined earlier, one cannot but conclude that the decision of Martins J., on the whole, flows from the case made by the parties before the Court notwithstanding the manouvers for time and interest apparent from the records.
The slip in the judgment admitted above has not, in my respectful view occasioned miscarriage of justice. I would also resolve this issue against the appellant and so the whole of Issue No.4.
Before finally concluding, I feel bound to identify with the patience shown by the learned trial Judge who had to hear, rehear and again further rehear a third time, the same suit over a period of 4 years from 1992 to 1996, accommodating all the delays, and also the forbearance of plaintiffs counsel in conceding to recall the witnesses for the defendants as outlined above. They thus evinced evidence of intention to accord the defendant’s fair hearing and did so.
Also, in the course of studying the records of this appeal, it did not escape our notice what Nwosu’s role seems to be a land speculator ready to lend himself. He clearly has not helped the case of the defence, either as vendor, or DW2.
In conclusion on the whole, I find no merit in this appeal. I hereby dismiss it.
The judgment of Martins J. of the High Court of Lagos State, delivered on 4th December, 1996 in Suit LD/2961/92 is affirmed. There will be N5,000 costs to the respondent.
Other Citations: (2000)LCN/0669(CA)
