Divine Ideas Limited V. Hajia Mero Umoru (2007)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J. C. A.

This is an appeal against the judgment of Hon. Justice S. T. Hussaini of the kogi State High Court sitting in Ayingba delivered on 7th day of May, 2004 in

Suit No. AYHC/4/2002 wherein his Lordship dismissed the Appellant’s claim, non-suited the counterclaim of the Respondent, but did not award damages to either of the parties.

The Appellant (as plaintiff) took out a Writ of Summons accompanied by a Statement of Claim and a Reply to the Amended Statement of Defence wherein it claimed from the Respondent (as defendant) the reliefs hereunder reproduced verbatim as follows:

“i, A declaration that by the auction sale conducted by M/S U.B.A. Plc. plaintiff is the beneficial owner of the property situate at No.5 Opposite GRA, Idah, covered by C of O No. 695 and a Deed of Legal Mortgage registered as No. 47 at page 47 in Vol. 1. Misc, at Lokaja, Kogi State Land Registry.

ii, An order of perpetual injunction restraining the defendant, her agents, privies, servants or whosoever acts for her form trespassing or further act of trespass on the plot of the plaintiff.

iii. General damages in the sum of N200, 00000 for acts of trespass and disturbance of the quiet possession of the plaintiff.

iv. Cost of this action

v. Any other legal or equitable remedy that meets the justice of this case. ”

The Respondent (as defendant) in her statement of Defence counter claimed. Hereunder are the counter claims verbatimly reproduced:

“i. The defendant avers that through a letter with ref No. AGOK/BPC/DII/01/2002 requested the tenant Mr. Daniel Peter to pay rent to it.

ii, The defendant /counter claimant avers that the plaintiff issued a receipt for payment of rent to the tenant for one year in the sum of N15, 000 00 (fifteen thousand naira only)

iii. The defendant hereby counter claim for the sum of N15, 00000 (fifteen thousand naira only)

iv. The defendant/claimant shall lead evidence that she is the bona fide owner of the building and entitle to the rent collected by the plaintiff from the tenant. ”

The Appellant’s case showed that sequel to an advertisement in the Nigerian Tribune newspaper of 15th March, 2001, it bought in an auction sale from M/S U.B.A. Plc, the property known as and lying at No.5. Idah – Ajaka Road, Opposite G.R.A., Idah Kogi State. The property was earlier on in 1988 used by Alhaji Umoru Musa (now deceased) as collateral for a loan granted him by U.B.A Plc. In this respect, a deed of legal mortgage was executed on, 18/10/1988 and duly registered as No. 47 at page 47, Vol. Misc, at the Lands Registry, Lokoja Kogi State. Upon failure of late Alhaji Umoru Musa to repay the loan after several demands by U.B.A. Plc before and after his death, the property was sold by auction on 23/3/2001 to the Appellant. On taking possession of the property, the Appellant found that one Peter Daniel was living in the house as a tenant. The tenant was informed about the change in the ownership of the property.

The Appellant demanded from the tenant and was paid the sum of fifteen thousand naira (N15, 000=) as a year’s rent. The Appellant alleged that the Respondent entered the property and committed some acts of trespass on the property by felling some economic trees on it and rented out part of the building to one Mr. Oke. The Appellant through its solicitor reported these alleged acts of trespass to the Police in Idah and subsequently commenced an action against the Respondent in the trial court.

On the other hand, it was the case of the Respondent that she built the house on the portion of land in dispute with her own resources, the portion of land having been granted to her by one Chief Achadu of Igbala -Ogba, Idah in 1977. She later applied to Idah Local Government for and was granted the Certificate of Occupancy in respect of the portion of land in 1979. One Mr. Daniel Peter, a tenant in the house informed her that the Appellant claimed to be the new owner of the house and that the Appellant also collected the sum of N15, 000= from him as rent for one year. She counter-claimed against the Appellant in the trial court for the refund to her of that sum of money.

The Appellant called two witnesses, while the Respondent called five witnesses including herself in support of their respective – claims. Fifteen documents in all were tendered and admitted in evidence as Exhibits.

The learned trial Judge after due consideration of the cases of both parties delivered his judgment on 7/5/04, held that the Appellant failed to establish to his satisfaction that it is the beneficial owner of the property in dispute and thereby dismissed the suit of the Appellant. He however found that the Respondent”— has all along been in control over the property in dispute—–” but because the Respondent did not seek any relief, her counter-claim was non-suited.

Dissatisfied with the judgment of the learned trial Judge, the Appellant filed this appeal.

At the hearing of the appeal on 06/11/06, learned counsel for the Appellant, Mr. J. S. Okutepa adopted his brief of argument and urged the court to allow the appeal.

In reply, Respondent’s learned counsel, Mr. I. E. Ibrahim adopted his brief of argument. He urged the court to affirm the judgment of the trial court and dismiss the entire appeal.

For the determination of the appeal, the Appellant identified three issues. Verbatim, they are:

“i. Whether the learned trial Judge, Hussaini J. was correct to have exhumed outside the pleadings before him the issue whether the management of U.B.A. Plc had approved the auction sale of the property in issue to the appellant and to have proceeded in the same judgment, to come to the conclusion that there were fraud and improprieties in the issuance of exhibit P7 to the Late Alhaji Umoru Musa and that U.B.A Plc was not diligent in entering into the Deed of legal mortgage, even though the Estate of Alhaji Umaru Musa and U.B.A Plc were not parties in the case and were not heard on the issues. (Grounds 2, and 3 of the notice and grounds of appeal).

ii. Did the learned trial Judge Hussaini J. properly or at all evaluate the evidence before him in this case before he dismissed the case of the appellant, and from the totality of the said evidence, was his Lordship not in error to have admitted and relied on exhibit D3 to hold that the building at No.5 Idah – Ajaka Road was put up by the Respondent, and, in any case, was it proper for his Lordship to have non-suited the Respondent (Grounds 1,4, 5, 6, and 8 of the notice and grounds of appeal).

iii. Was the learned trial Judge Hussaini J correct to have found that the counter claim of the Respondent before him was not statute-barred or that the Respondent was not estopped from asserting interest in the plot and building in issue. (Ground 7 of the notice and grounds of appeal).”

The Respondent on the other hand formulated six issues. They are hereunder reproduced verbatim as follows:

“1 Whether the trial Court was right or correct in it’s finding that the management of United Bank for Africa PLC had not approved the auction sale and whether the finding has occasioned any miscarriage of justice to the appellant. (Relevant to Ground 2).

2. Whether the trial Court was right in its finding that there was fraud or impropriety in the issuance of Exhibit P7? (Relevant to Ground3).
3. Whether the trial Court was right in non-suiting the respondent in her counter claim – (Relevant to Ground4)
4. Whether the trial Court properly evaluated the evidence before it in arriving at its decision. (Relevant of Grounds 1,5 & 6).
5. Whether the trial Court was right, when it held that the respondent’s counter claim was not statute barred (Relevant to Ground 7).
6. Whether the trial Court was right in admitting Exhibit D3 (Relevant to Ground 8)”

This appeal is on the propriety of the trial Judge in dismissing the claim of the Appellant despite the evidence that was adduced before it and also whether the order of Non-Suit was proper, the counter-claim of the Respondent not having been proved.

I have examined the issues formulated by the Appellant and the Respondent. I do not feel comfortable adopting either side’s issues in their entirety. It is established that the Court of Appeal has the power to adopt or formulate issues that in its view would determine the real grouse in an appeal. Seethe cases of:

(1) Ikegwuoha V. Ohawuchi (1996) 3 NWLR (Pt. 435) p. 146 and

(2) Aduku V. Adeioh (1994) 5 NWLR (Pt. 346) p. 582

It is my humble view that the Appellant’s Reply Brief is virtually an abridgement of the main Appellant’s Brief. It is established that the function of a reply brief is not to repeat arguments in the Appellant’s brief, it is to refute if any, the arguments in the Respondent’s brief and dislodge them, See the case of: Onwudiwe V. F. R. N (2006) 10 NWLR (Pt. 988) p. 382.

I therefore will not make use of the repeated or repetitive arguments in the Appellant’s Reply Brief in the consideration and determination of the appeal.

The following two issues are considered by me to be appropriate in the determination of the grievance in the appeal:

(1) Whether the learned trial Judge properly evaluated the evidence adduced in the case before dismissing the case of the Appellant.

(2) Whether the learned trial Judge was right in allowing the counter-claim of the Respondent and the propriety of non-suiting the counter-claim.

ISSUE ONE

The learned counsel for the Appellant submitted that the Appellant is the owner of the property in dispute. By virtue of the Certificate of Occupancy No. 005767 dated 1979 at “page 5” of Exhibit “D1”, late Alhaji Umoru Musa was the original owner of the property. The Certificate of Occupancy was lost and the loss was reported by late Alhaji U. Musa to Idah Local Government. He also applied for the issuance of another copy of the lost C. of O. vide an affidavit of loss at “page 8” of Exhibit “D1”. He was subsequently issued another Certificate of Occupancy No. 695, dated 09/09/88, Exhibit “P7”. An approval was given by Idah Local Government to late Alhaji U. Musa in September, 1988 to mortgage the property to U.B.A. Plc vide “page 10” of Exhibit “D1”. And “DW1” also “testified to this fact.

Late Alhaji U. Musa took a loan from U.B.A., Plc and the property in dispute was used as a collateral leading to the execution of a Deed of Legal Mortgage dated 18/10/88, Exhibit “P6” which was duly registered at the Lands Registry, Lokoja, Kogi State. The inability of late Alhaji U. Musa to pay up the loan despite several demands led the U.B.A. Plc to exercise its power under the deed of legal mortgage to sell the property to recover the loan accordingly. U.B.A. Plc. therefore placed an advertisement in Nigerian Tribune Newspaper of 15/03/2001, Exhibit “P8” for the sale of the property. At a public auction, the Appellant bought the property in question. The property was then paid for, the receipt of the sale price was acknowledged by U.B.A Plc, this is Exhibit “P2”. PW2 testified that by the auction sale, the Appellant became the owner of the property although the Deed of Assignment is yet to be executed.

From the above facts, Appellant’s counsel contended that the Appellant successfully proved that it is the beneficial owner of the property in dispute. It was in exercise of its ownership right that, a letter was written to intimate one Mr. Daniel Peter who had been occupying the house as a tenant that the Appellant is the new owner of the property. The Appellant being the beneficial owner of the property is therefore entitled to the sum of N15, 000= rent collected from the said tenant. According to the Appellant’s counsel, the learned trial Judge did not properly evaluate the evidence adduced before him by the parties, especially the documents tendered and admitted. This according to him led the trial court to draw wrong inferences and conclusions culminating in the wrongful dismissal of the claims of the Appellant.

The Appellant’s counsel argued that the evidence adduced by the Respondent did not support her counter-claim. The Respondent, Hajia Mero Umoru, wife of late Alhaji U. Musa claimed that she got the land from Achadu family of Idah. In prove of her title to the land, she tendered in evidence “page 2” of Exhibit “D1”, an alleged agreement executed on 23/12/1977 between her and Achadu of Igala-Ogba, Idah. She also tendered in evidence the Certificate of Occupancy No. 005769 dated 06/03/1979, Exhibit “D2”. By reason of the serial numbers of the respective Certificates of Occupancy of the Appellant and the Respondent, that of the Appellant No. 005767 is first in time. Therefore, the Appellant is the true owner of the land in dispute. What is more, Exhibit “D1” is the file of the Appellant with the Idah Local Government, while the file of the Respondent was not in evidence. The learned trial Judge also found that “page 2” of Exhibit “DI” & Exhibit “D2” relied on by the Respondent as her entitling documents are inadmissible, holding also that they do not relate to the land upon which the house in dispute was built. The Respondent did not plead and failed to establish her root of title as required by law, she is therefore not entitled to the property in dispute. He referred to the case of: Onwugbufor V. Okoye (1996) 1 SCNJ p. 1 at p. 26.

The Appellant’s counsel submitted that the evidence adduced by the Respondent is fatal to her case and the learned trial Judge erred in holding that the Certificate of Occupancy Exhibit “P7” did not vest the title in the land in the Appellant.

Quite apart from the fact that the Respondent did not plead her title to the property in dispute, Appellant’s counsel also contended that the issue raised by the Respondent in the appeal that the management of U.B.A. Plc did not approve the auction sale of the property in favour of the Appellant was neither pleaded nor raised not even in the address of the Respondent’s counsel at trial. It was in the judgment of the trial court that this issue first surfaced and erroneously founded upon by the learned trial Judge. Counsel submitted that it is settled beyond argument that parties and the court are bound by the pleadings filed. The court in the consideration of the case before it must therefore confine itself to the issues raised by the parties in their pleadings. He referred to the cases of:

(1) U. B. N Plc. V. Dawodu (2003) FWLR (Pt. 180) p 1487 at p.1495;

(2) Udengwu V. Uzuegbu (2003) FWLR (pt. 179) p. 1173 at p. 1186 – 1187;

(3) Awara V. Alalibo (2003) FWLR (pt. 144) p. 415 at p. 469 – 470 and

(4) Chinda V. Amadi (2003) FWLR (pt. 145) g 696 at p. 709.

The conclusion of the learned trial Judge at p. 205 of the record of proceedings that:

“— the effect of Exhibits “P2″and ”P3”put together amount (sic) to nothing more in my view to an expression by the Plaintiff’s (sic) of their (sic) intention to purchase the property at No.5 Idah-Ajaka Road. Idah by way of an offer, unless and until that offer is accepted or approved. A contract of sale cannot be said to have come into existence—“.

is perverse and has seriously occasioned a miscarriage of justice to the Appellant. The court was urged to hold that the said decision is wrong and same should be set aside, the issue being outside the case put forward by the parties.

Another very important issue contested by the Appellant’s counsel is that of an allegation of fraud leveled against the late Alhaji U. Musa by the Respondent. The learned trial Judge held that the Certificate of Occupancy Exhibit “P7” was obtained by Alhaji U. Musa in fraudulent circumstances. Consequent upon this, the Deed of Legal Mortgage Exhibit “P6” executed between the late Alhaji U. Musa and U. B. A. Plc was equally wrongly faulted by the learned trial Judge on the ground that the management of U. B. A. Plc was negligent in the transaction leading to the agreement. In the opinion of the Appellant’s counsel, the allegations of negligence and fraud are very grievous and weighty enough for the Respondent to have applied to join U.B.A. Plc and the estate of late Alhaji U. Musa as necessary parties at trial so as to enable the trial court effectively and effectually decide the issues. Failure of the Respondent in this regard robbed the trial court of the jurisdiction to decide those issues. He relied on the case of:

Agbakoba V. Kpeazu (2005) All FWLR (pt. 259) p. 2046 at. p. 2065 – 2066.

The trial court’s decision was against those two persons who were not parties in the case before it. It is settled that a court lacks jurisdiction to find against a person who is not a party to a case. He referred to the cases of:

(1) Alamieyeseigha Vs. Teiwa (2002) FWLR (pt. 96) p. 552 at p.571;

(2) N.E.C. V. Izuoqu (1993) 2NWLR (pt. 275) p. 270;

(3) Oloriode Vs.Oyebi (1984) 1 SCNLR p. 390;

(4) Duke V. Henshaw (1940) 6 WACA p. 200 and

(5) Ekpere V. Aforize (1972) ALL NLR p. 220.

There being no act of fraud traceable to the Appellant, the Deed of Legal Mortgage Exhibit “P6” was regularly and perfectly executed in the circumstances of this case. What is more, there was no evidence of collusion, notice of fraud or negligence against the Appellant regarding the auction sale. The Appellant is therefore duly entitled to the property in dispute under the law of property. On this point, counsel referred to the case of: Okonkwo V. Cooperative & Commerce Bank (Nig.) Plc. (2003) FWLR (pt. 154) at p. 496 – 497.

He urged the court to set aside the finding of fraud as having been made without jurisdiction. Going on further, Appellant’s counsel argued that if the trial Judge had duly put the totality of the evidence led by parties on the imaginary scale of justice and done a proper evaluation of same within the meaning and definition of the phrase “evaluation of evidence”, he would have come to no other conclusion than that the property originally belonged to late Alhaji U. Musa, that the mortgage transaction was proper and that the Appellant was by virtue of the auction sale the beneficial owner of the said property. He referred to the cases of:

(1) Balogun V. Akanji (1988) 2 SC (Pt. 1) p. 199 and

(2) Matanmi V. Dada (2002) FWLR (pt. 96) p. 544.atp. 550.

In continuation, the Appellant’s counsel canvassed that the Respondent did not adduce evidence in prove of how she built the house she is laying claim to own. He submitted that the identities of both the plot of land and house in dispute are not in doubt. Both parties are in agreement that the house and the plot of land are at No.5 Idah – Ajaka Road, Idah. It follows therefore that even if the Respondent is the true owner of the house, the Appellant has denied this, the trial court having held that the Respondent is not the owner of the plot of land, the Respondent can not lay claim and she is not entitled to the ownership of the house thereon. He referred to the case of:

Gaji V. Pare (2003) 7 WLR (pt. 163) p. 1at p. 20.

Furthermore the learned counsel for the Appellant submitted that the learned trial Judge was in error to have admitted and relied on the Building Plan Exhibit “D3” dated 6/3/79. He observed that Exhibit “D3” is an inadmissible document having regard to the provisions of S. 3 (1) (b) (i) of the Survey Law, Cap. 129, Laws of Northern Nigeria 1963, which is applicable in Kogi State. He contended that Exhibit “D3” was not prepared and signed by a surveyor as required under that Law. Exhibit “D3” was merely stamped by the Health Department of Idah Local Government and not even the Department of Lands & Survey as erroneously found by the learned trial Judge. The learned trial Judge was therefore in error to have admitted Exhibit “D3” and founded in favour of the Respondent based on this. He submitted that the proper and relevant case on the issue is that of:

Babatola V. Aladejana (2001) FWLR (pt. 61) p.1670 at p. 1678 – 1679.

In that case, it was held that the building plan must be tied to the land in dispute to clearly show the identity of the land. Mere production of the building plan Exhibit “D3” without more was not enough to entitle the Respondent to a declaration of title to the house and plot of land in dispute. He relied on the case of: Anta V. Ibe (2003) FWLR (pt. 173) p. 87 at p. 98 – 99.

Appellant’s counsel urged the court to do a proper evaluation of the evidence on the printed record of proceedings and the exhibits tendered pursuant to the power conferred on it by the provisions of Section 16 of the Court of Appeal Act, 1976 to enable it come to a just determination of the appeal in favour of the Appellant. He referred to the cases of:

(1) Bassil V. Fajebe (2001) FWLR (pt. 51) p. 1914 at p. 1926-1927 and

(2) Maigoro V. Bashire (2000) FWLR (pt. 19) p. 553 at p.567

He urged the court to set aside the findings of the trial court and adjudge the Appellant the beneficial owner of the property in dispute.

In reply, especially on the issue of the evaluation of the evidence adduced by parties before the trial court, the learned counsel for the Respondent submitted that the trial court properly evaluated the evidence before it and arrived at a just decision. There is no need for this court to interfere with the evaluation already done at trial by embarking on another evaluation journey, the trial court having discharged its duty in this regard. He canvassed that the law places a burden on the Appellant to prove and rely on the strength of its case. It can not rely on the weakness of the case of the Respondent in proving its own case. He referred to the case of:

Umesie Vs. Onuaguluchi (1995) 12 SCNJ p. 131.

The Respondent according to her counsel in prove of her counter-claim was able to successfully establish that she was duly allocated the land and built the house in dispute by the overwhelming evidence adduced through her witnesses and the Exhibits tendered by her in evidence before the trial court. Reference was made to Exhibit “D1” the Idah Local Government file containing the relevant papers in relation to the Respondent’s application for and the grant of the Certificate of Occupancy Exhibit “D2” dated 06/03/1979. The

Respondent who is one of the wives of the late Alhaji Umoru Musa is aware that her late husband’s portion of land and the property in dispute are located in the same place but, Alhaji Umoru Musa’s property is a vacant portion of land. The Respondent however is the owner of the particular portion of land and the house in dispute. She also was not aware that her late husband took any loan from U.B.A. during his life time but only got the information that her property in dispute had been auctioned in this regard some months after her husband’s death. The information was given to her by one Daniel Peter, a tenant in the house in dispute. Daniel Peter was introduced to her by DW3. Daniel Peter is her tenant and has never been her late husband’s tenant.

Continuing, Respondent’s counsel observed that although the learned trial Judge found “page 2” of Exhibit “D1” and Exhibit “D2” the documents tendered in evidence as the source of the Respondent’s title inadmissible because they do not relate to the plot of land in dispute, the trial court rightly found in her favour based on the evidence of her witnesses, especially, DW4 one of the persons who allocated the land to her on the instructions of Achadu. What is more, the trial court held that the Appellant failed to prove its title to the land. DW3 gave evidence that she was the person who introduced the tenant Daniel Peter to the Respondent. DW2, a mason also gave evidence that he was one of the Respondent’s workers during the construction of the house.

Furthermore learned counsel for the Respondent argued that in line with the evidence of PWI & PW2 and Exhibits “P2” & “P3″, the transaction precedent and subsequent to the auction sale under which the Appellant is claiming title to the property in question is yet to be perfected. The auction was not approved and the deed of assignment was not issued to the Appellant by U.B.A. Plc. There was no valid transfer of title from U.B.A to the Appellant. The Appellant has therefore failed to prove its assertion and claim that it is the owner of the property in dispute. The Appellant consequently has no ”locus standi” to commence the suit in the trial court. The issue of the non-approval of the auction sale was not raised ”suo motu” by the trial court but was part of the evidence adduced by the Appellant vide PW1 & PW2. Counsel observed that it is trite that a party is entitled to lead evidence through his own witnesses or by the cross examination of the witnesses of the opposing party to controvert a fact pleaded by the opposing party. He referred to the case of: Gaji V. Paye (Supra) at p. 32 – 34.

Assuming however that the trial court’s consideration of this point was done “suo motu’, the finding in respect thereof was well founded on evidence, well merited and has not occasioned any miscarriage of justice to and thereby entitle the Appellant to a reversal of the order of dismissal of its claim. He referred to the cases of;

(1) Ablmbola V. Abajan (2001) 4 SCNJ pt. 73 at p. 86 and

(2) Imah Vs. Okoobe (1993) 12 SCNJ (pt. 57) p. 22 – 24 & 77

On the issue of allegation of fraud leveled against the Respondent’s late husband, it was contended by the Respondent’s counsel that the evidence adduced at trial was properly evaluated and the trial court came to the correct conclusion. The process leading to the grant of the Certificate of Occupancy Exhibit “P7” was fraught with impropriety bordering on fraud. Exhibit “P7” is the basis of Appellant’s claim in that it was used by late Alhaji Umoru Musa as collateral for a loan from U.B.A. and the same was allegedly transferred to the Appellant in a purported auction sale. This issue of fraud was pleaded and proved by the Respondent. The Appellant can not ground his claim on fraud. He referred to the case of: W A. Breweries V. Savannah Ventures (2002) 5 SCNJ p. 269 at p. 291,

Fraud vitiates every transaction and in this matter, it knocked the bottom off the Appellant’s case as the whole transaction is void “ab initio” since the late Alhaji Umoru Musa was not the original owner of the property, he could not legally mortgage it and the U.B.A. could not in turn validly auction it to the Appellant. He referred to the cases of:

(1) Dadi Vs.Garba (1999) 2 SCNJ p. 232 at P. 239;

(2) Mohammed V. Klarqester Nig Ltd (2002) 7SCNJ p. 443 at p. 455 – 456 and

(3) Ojengbede V. Esan & Ors. (2001) 10 – 12 Vol.8 NSCQR p. 461 at p. 478 – 479.

Still on this issue, Respondent’s counsel canvassed that U. B. A Plc, the Idah Local Government of Kogi State and the estate of Alhaji Umoru Musa were aware of the case in the trial court, yet they stood by. The Appellant also had the opportunity of applying to the trial court to join them in the suit if it considered them necessary parties but failed to do so. They were therefore not denied any fair hearing, consequently, no miscarriage of justice was occasioned on the Appellant. He relied on the cases of:

(1) Okukuje V. Akwido (2001) FWLR (Pt. 39) p. 1487 and

(2) Ndulue V. Ibezim (2002)5 SCNJ p. 247 at p. 260 – 262.

Concerning the admissibility of Exhibit “D3”, the building plan of the Respondent in respect of the house in dispute, learned counsel for the Respondent submitted that Exhibit “D3” is an admissible document by the combined effect of the provisions of Sections 2 & 3 (1), (b)(i) & (ii) of the Survey Law, Cap. 129, Laws of Northern Nigeria, 1963. Exhibit “D3” was duly signed and approved by the Department of Lands & Survey of Idah Local Government thereby meeting the requirements of the provisions of the said Law. He also referred on this point to the case of:

Oseni Vs. Dawodu (1994) 4 SCNJ (Pt. 2) p. 197 at p. 213.

Learned counsel for the Respondent finally urged the court not to disturb the findings of the trial court on any of the above issues as these were based on proper evaluation of the evidence adduced before that court and the decision of the trial court has not occasioned any miscarriage of justice on anyone, especially the Appellant.

The fulcrum of this issue is that of the justification or otherwise of the trial court in dismissing the case of the Appellant in the light of the totality of the evidence adduced before it at trial. Put in another way, did the decision of the trial court follow a proper evaluation of the evidence adduced by the parties?

Before proceeding any further, it is apposite to state the position of the law regarding the propriety of an appellate court delving into the matter of reviewing the evidence adduced before a trial court. The settled rule is that it is the primary duty of a trial court to evaluate evidence and ascribe probative value to it. The rationale behind this is that, it is the trial court that has the opportunity and privilege of seeing, hearing and assessing witnesses called in the proof of the issues before it. Where the credibility of witnesses based on their demeanor is in issue and the evaluation of evidence has been done in accordance with all laid down principles of law, the trial court’s findings would not be disturbed by an appellate court. The exception to this general rule is that, where it is shown that the findings and conclusions of a trial court could not properly follow from the evidence adduced before it, such findings and conclusions will be held to be perverse and will be upturned for that reason by an appellate court. It is established law that an appellate court is in as good a position to evaluate evidence as a trial court, come to different findings and substitute such findings for those of the trial court in appropriate cases. The function of an appellate court on question of facts is however limited to ensuring that the evidence tendered before the trial court upon which its decision of facts was based was properly accepted or rejected. An appellate court must ensure that the evidence called by parties to the conflict was put on the appropriate sides of the imaginary scale and weighed one against the other. The trial court must have correctly admitted and assessed the evidence before it. The properly admitted evidence must also be found sufficient to support the decision following the inferences drawn therefrom. See the cases of:

(1) Ngillari V. N.I.C.O.N. (1998) 8 NWLR (Pt.560) p. 1;

(2) Egesimba V. Onuzurike (2002) 15NWLR (Pt. 791) p. 466

(3) Joe Golday Co. Ltd V C D. B. Plc (2003) 5 NWLR (Pt. 814) p. 586;

(4) Gail Vs. Pave (2003) 8 NWLR (pt. 823)p. 583 and

(5) Julius Berger (Nig.) Plc. V. Nwagwu (2006) 12NWLR (Pt 995) p.518.

The Appellant’s grievance in this appeal is that the learned trial Judge did not properly evaluate the evidence adduced by parties before him at trial, drew wrong inferences and came to a perverse decision which has occasioned a miscarriage of justice on it, the Appellant. Learned counsel for the Appellant had itemized the various areas of contention and the learned counsel for the Respondent had duly replied to them as enumerated by me above. I have carefully considered the arguments of counsel in their respective briefs vis-a-vis the relevant portions of the record of proceedings of and the exhibits in evidence before the trial court.

As stated above, an appellate court will only interfere with the findings of a trial court where it is established that such findings are perverse and have occasioned a miscarriage of justice on a party. This is the only valid reason for which an appellate court will exercise such power. To be able to properly fish out such valid reason, the appellate court has been empowered just like the trial court to go into that business or journey of evaluating the evidence under attack.

The contest between the parties is that of the ownership of the property lying and situated at No.5, Idah-Ajaka Road, Igala-Ogba, Idah, Kogi State, that is, the portion of land with the house on it.

Firstly, on the issue of the identity of the property, the portion of land and the house thereon in this case, the position of the law is that where the land and or the property in dispute are known to both parties, especially when the question about the identity of the land in dispute was not raised in the pleadings nor in the proceedings before the trial court, it can not be said that the identity of the land or property in dispute is in doubt. See the cases of:

(1) Ilona V. Idakwo-(2003)11 NWLR p. 53;

(2) Alechenu V. Oshoke (2002) 9 NWLR (Pt. 773) p. 521;

(3) Osazuwa V. Isibor (2004) 3 NWLR (pt. 859) p. 16;

(4) Akinterinwa V. Oladunioye (2000) 6 NWLR (Pt. 659) p.92 and

(5) Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) p. 134

Both parties in this case are ”ad idem” regarding the identity of the property in dispute. Indeed learned counsel for the Respondent submitted expressly in his brief of argument that the identity of the property in dispute is not in doubt. It is therefore settled and I hold that the identity of the property in dispute is not in doubt and not an issue; it is that which is located at No.5, Idah-Ajaka Road, Opposite GRA, Igala-Ogba, Idah, Kogi State.

It is settled that a plaintiff who seeks a declaration of title to land has the burden to prove same. It is a principle of law long established and followed in series of decided cases that there exists five recognized methods of praying ownership. Title to land will therefore be proved by anyone or more of these methods:

(a) traditional evidence;

(b) production of documents of title which are duly authenticated;

(c) acts of possession and ownership which include selling, leasing, renting out all or part of the land or farming on it or a portion of it over a sufficient length of time to warrant the inference of exclusive ownership of the land;

(d) acts of long possession and enjoyment of the land;

(e) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See the cases of:

(1) Adewuyi V. Odukwe (2005) 7 SC (Pt. 11) p. 1 and

(2) Ashiru V. Olukoya (2006) 11 NWLR (Pt. 990) p.1.

In discharging the onus of proof, the plaintiff must of necessity succeed on the strength of his own case and not on the weakness of the defendant’s case. See the cases of:

(1) Adewuyi V. Odukwe Supra at p. 11 and

(2) Ogbu V. Wokoma (2005) 7 SC (Pt. 11) p.123.

It is also settled that where two parties are contending for a piece of land, the court has the duty to determine the party that has established better title to the land. See the cases of: (1) Ogbu V. Wokoma Supra at p. 136 and (2) Ashiru V. Olukoya Supra at p. 37

When title to land is sought to be proved by documentary evidence, the documents tendered in the proof must be duly authenticated. The execution of such documents must be duly proved.

The fact that a claimant for declaration of title to land produces what he claims to be an instrument of grant of title does not automatically entitle him to a declaration that the property which the instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the court to enquire into some or all of a number of questions such as:

(a) whether the instrument is genuine and valid;

(b) whether the grantor had the capacity and authority to make the grant;

(c) whether it has been duly executed and stamped;

(d) whether the grantor had in fad what he purported to grant and

(e) whether it had the effect claimed by the grantee, the holder of the instrument.

When a document is duly pleaded, tendered and admitted in evidence, that document becomes the best evidence of its contents and therefore speaks for itself. It is the contents of the whole document that are in evidence. That being the case, the court cannot disregard it. On the above propositions of law, I refer further to the cases of:

(1) Sanyaolu V. Coker (1983) SCNLR p.168:

(2) Ogunyombo V. Ookoya (2002) 16 NWLR (pt. 793) p- 224;

(3) Bamgboye V. Olusoga (1996) 4 NWLR (Pt.444) p-520

(4) Thompson V. Arowola (2003) 7NWLR (Pt.818) p.168;

(5) Atanda V. Ifelagba (2003) 17 NWLR (Pt.849) p.274:

(6) Woluchem V. Gudi (1981) 5 SC P.291;

(7) Onisadu V. Elewuju (2006) 13NWLR (Pt.998) p.517 and

(8) Ajibove V. Ishola (2006) 13 NWLR (pt. 998) p.628.

In assessing the judgment of a trial court, the consideration of an appellate court is to determine whether the decision of the trial Judge is right and not whether his reasons are right. If the decision is right and only the reasons are wrong, an appellate court will not interfere with the decision, especially when this touches the credibility or reliability of witnesses. See the cases of:

(1) A.-G., Bendel State V. A. – G Federation. (1982) 3 NCLR p.1 and

(2) Ekpo V. State (2003)17 NWLR (Pt.849) p.392.

My duty in the appropriate resolution of the appeal is to adjudge whether or not there is in fact a valid legal basis for interfering with the findings and conclusions of the trial court. In doing this, I am only limited to the interpretation and determination of the documentary evidence adduced by the parties and I must not delve into ascertaining the credibility or otherwise of the witnesses called in prove of the respective cases of the parties. See the cases of:

(1) Ngige Vs. Obi (2006) 14 NWLR p. 1 at p. 195 -196 & 210 and

(2) Gbadamosi & Anor. Vs. Governor of Oyo State & 8 Ors. (2006)13 NWLR (Pt. 997) 363.

In the instant case, the Appellant relied on documents of title to prove its title to the property in dispute, Among them are Exhibits “P8 & “P8A”, “P9”, “P7”, “P6” “P6A”, “P2” and “P3”. These documents were not successfully challenged by the Respondent. Exhibit “P7”, the Certificate of Occupancy put in evidence by the Appellant as the document of its title to the portion of and in dispute can not be held to have been validly controverted in view of the findings of the trial court that, “page 2” of Exhibit “D1″, the grant agreement and Exhibit.”D2”, the Certificate of Occupancy put in by the Respondent in prove of her own title to the land (though wrongly inadmissible. See page 216 paragraphs 10-20 and page 217 paragraph 5 of the record of proceedings.

Exhibit “P2” is the letter from UBA acknowledging the payment made by the Appellant in respect of the auction sale; while Exhibit “P3” is the letter informing the Appellant that the Deed of Assignment, the document to formally transfer the ownership of the property was being processed by the UBA. The Respondent did not adduce any evidence in rebuttal of the auction sale by UBA to the Appellant. The evidence of the Appellant-in respect of how the UBA came about Exhibit “P7” and the fact that late Alhaji Umoru Musa used the property in dispute as collateral culminating in the execution of Exhibit “P6” was not also successfully controverted by the Respondent. The respondent merely said that she was not aware that her late husband, Alhaji Umoru Musatook a loan from UBA.

With due respect to the learned trial Judge, he acted improperly in rejecting and disregarding the contents of the said Exhibits especially Exhibits “P7” and “P6”. In my humble opinion, Exhibit “P7” was duly issued and it vested title to the portion of land in dispute in its original holder, that is, late Alhaji Umoru Musa. By virtue of Exhibit “P7”, late Alhaji Umoru Musa possessed the legal capacity and authority to pass the property on to UBA as collateral for the loan he took from it. Both UBA and late Alhaji Umoru Musa consequently had the capacity to execute Exhibit “P6” as they duly did. This fact is very patent especially by the accompaniment Exhibit “P6A” showing that Exhibit “P6” was duly stamped as required by law. As already observed, by the auction sale, ownership in the property became vested in the Appellant, notwithstanding that the deed of assignment is yet to be formally issued to the Appellant by UBA.

One important point which was considered and founded upon by the learned trial Judge is that the management of UBA Plc did not approve the auction sale. Learned counsel for the’ Respondent in his brief of argument submitted that the Appellant had no “locus standi” to institute the suit in the trial court. There are two dimensions to this point. Firstly, having rummaged through the record of proceedings, I can not find anywhere this issue was pleaded in the Respondent’s Amended Statement of Defence. It was also not submitted upon by counsel. It is settled that parties are bound by their pleadings. The essence of pleadings in claims and counterclaims of parties in litigations is to define the issues between the parties throughout the Journey of the proceedings from commencement right down to conclusion and even on appeal if the journey includes an appeal. This is to ensure that surprises are not sprung on parties in the spirit of the standards of fairness or fair hearing, which is the foundational ingredient of the principle of natural justice.

A party must be consistent in stating his case and consistent in proving it. He will not be permitted to take; one stance in his pleadings, then turn aside or around from these during trial and even on appeal. This will be tantamount to a voIteface in the claims of parties. See the cases of:

(1) Chief Sergeant C Awuse V. Dr. Peter Odili & 3 Ors. (2003)18 NWLR (Pt.851) p. 116;

(2) Green Finger Agro-Ind Ltd V. M. Yusuf (2003) 12 NWLR (pt.835) P.488,

(3) Eronini V. Ihenko (1989) 2 NWLR (Pt.101) p.46;

(4) Sanni V. Ademiluyi (2003) 3NWLR (Pt.807) p.381

(5) Bunge V. Gov. of Rivers State (2006) 12 NWLR (1995) p.573;

(6) Osolu V. Osolu (2003) 11NWLR (pt.832) p.608 and

(7) Ngige V. Obi Supra at p. 141 – 142.

Furthermore, courts are not permitted in law to allow evidence not pleaded either at the instance of parties or even on its own motion, that is “suo motu” This is so because it is not the business of court to examine an issue not before it, the court has nothing to do with what is not before it, to do this will be a departure from the high standards of impartiality required from the court. Evidence not pleaded is not worthy of consideration or being founded upon at all, it goes to no issue. Where it is discovered that such evidence has been founded upon at trial, an appellate court will not only refuse to attach any weight to or act upon it, an appellate court will regard such finding as erroneous. See the cases of:

(1) John Vs. B1akk (2001) 10 NWLR (pt. 721) p. 360 and

(2) F.A. T. B. Ltd. V. Partnership Inv. Co. Ltd. (2003) 18 NWLR (pt 851) p.35.

An issue not in contemplation of parties ordinarily should not be raised on court’s own motion, that is, “suo motu’. However, if for good cause it is raised, the court is forbidden from proceeding to resolve it one way or another without hearing the parties on it especially when such resolution will adversely affect one of or all the parties, except where by statutory provisions, a Judge is expected to take judicial notice of a fact under the provisions of Sections 72 and 73 of the Evidence Act. See the cases of:

(1) Oshodi Vs.Eyifunmi (2000)13 NWLR (pt. 684) p. 298;

(2) Adeniyi V. Adeniyi (1972) 4 SC p. 17 and

(3) Oje V. Babalola (1991) 4 NWLR (Pt. 185) p.267

Secondly, the issue of the Appellant not having “locus standi” to commence the suit in the trial court is only now being given birth to in this appeal by the Respondent. I can not find anywhere in the record of proceedings where the issue ever came up. It was neither pleaded by parties especially the Respondent. The trial court did not find on this either. It is bad in law for a party to argue on appeal a case alien to the case he argued in the trial court. An issue new or alien to that argued during trial is incompetent for consideration on appeal except leave is first sought and obtained in the Court of Appeal to introduce same appropriately. See the cases of:

(1) Akuneziri V. Okenwa (2000) 15 NWLR (Pt. 691) p. 526:

(2) Abdulraheem V. Olufeaqba (2006) 17 NWLR (Pt. 1008) p. 265 at p. 357 and

(3) Ngige V. Obi Supra at p. 106 -108.

As earlier on stated, this point was not pronounced upon by the trial court certainly because it did not come up. Although the Court of Appeal can properly deal with an issue not pronounced upon by the trial court, what this presupposes is that, the issue must have existed, that is pleaded, claimed or submitted upon in the first instance before the trial court. See Section 16 of the Court of Appeal Act, 1976, Cap. 75, Vol. V, Laws of the Federation of Nigeria, 1990 and the cases of:

(1) Julius Berger (Nig.) Plc V. Nwagwu Supra at p. 539.

(2) Oke V. Oke (2006)17 NWLR (Pt.1008) p. 224.

I am in one with the Appellant’s counsel, that this point was not pleaded or alluded to by the Respondent during trial and consequently the trial court did not render any decision on it. The Respondent also did not first seek and obtain the leave of this court before raising this issue in the appeal. The issue is therefore not competent to be heard in the appeal I hereby discountenance it accordingly.

The Respondent leveled an allegation of fraud against her late husband, Alhaji Umoru Musa that the circumstances in which Exhibit “P7” was granted to him were laced with fraud. In my humble view, the Respondent did not rise beyond the stage of mere particularization of the allegation of fraud in her Amended Statement of Defence. Her attempt to discredit Exhibit “P7” was dislodged and her claim in this regard completely got shattered with the finding of the learned trial court that the documents relied on by her in proving her title to the property in dispute were inadmissible.

Furthermore, fraud is a criminal offence, no one can legally be convicted for a crime except he stands trial according to law for the particular offence. There must therefore be a distinctly stated charge in that regard and an opportunity given the accused to offer his defence before the court gives its decision one way or the other. See the cases of;

(1) Ejembi V. A. – G, Benue State (2003) 16 NWLR (Pt. 846) p.337 and

(2) Adun V. Osunde (2003) 6 NWLR (Pt. 847) p. 643

It is also worthy of observation that the Respondent neither directed to nor proved the allegation of fraud against the Appellant as a distinct legal entity. Indeed, the allegation of fraud is somewhat misplaced as it was made against the late Alhaji Umoru Musa and some unnamed /unknown officials of Idah Local Government who were not parties in the action before the trial court. The court as a matter of law can not, pursuant to the “audi alteram partem” rule, enter judgment against a person who will be affected directly by its decision if such a person is not made a party to the action and he had no opportunity of defending the action. See the cases of:

(1) Oyeyipo V. Oyinloye (1987) 1NWLR (Pt. 50) p. 356 and

(2) Obasanjo V. Buhari (2003) 17 NWLR (Pt:850) p. 510,

Also in the case of: Ngige V. Obi Supra at p, 178, it was held that the rule of fair hearing enjoins the court or any adjudicating body to ensure that nobody is condemned in respect of any allegation without being heard particularly where his right would be affected by the order of the court.

The learned trial Judge found that the file Exhibit “D1” was the Respondent’s, “page 2″of Exhibit “D1” and Exhibit “D2” relied on by her were however held to be inadmissible and discountenanced. I agree with the Appellant’s counsel’s stance that the foundation upon which the structure of the Respondent’s claim was to be built was never even dug not to talk of being laid. It is not possible to put something on nothing. Indeed the allegations made by the Respondent translated her into the status and position of a plaintiff. She was therefore required to prove the allegations accordingly. By virtue of the provisions of Sections 135 & 136 of the Evidence Act, he who asserts must prove, and once he fails to prove his assertion with cogent and credible evidence then he is bound to fall in his claim. See the cases of:

(1) Dada -V. Dosumu Supra at p. 171 and

(2) Ogbu V. Wokoma Supra at p. 135

By virtue of the provisions of Section 137 of the Evidence Act, the burden of first proving the existence or non- existence of a fact in a civil case lies on the party against whom the judgment of the court will be given if no sufficient or evidence at all or no further evidence is produced on either side, regard being had to any presumption that may arise on or from the pleadings. If such a party adduces evidence which is accepted and which establishes a ”prima facie case” of such a fact, then the burden shifts on to the other party against whom judgment would be given if no more evidence were adduced and so on until all the issues in the pleadings are dealt with. This essentially is what is meant when a civil suit is said to be decided on the preponderance of evidence or on the balance of probabilities. The burden of proof in civil cases is not static. What is more; pleading is not tantamount to or constitute evidence. When a party fails to give evidence in prove of his pleading, he is deemed to have abandoned or failed to establish same. See the cases of:

(1) Akinsanya V.Soyemi (1998) 8NWLR (pt. 560) p. 49:

(2) A. – G., Lagos State V. Purification Tech. (Nig.) Ltd (2003) 16 NWLR (pt. 845) p. 1;

(3) Abdul V. BENSU (2003) 16 NWLR (pt. 845) p. 59;

(4) Summit Fin. Co. Ltd V. Iron Baba& Sons Ltd (2003) 17 NWLR(Pt. 848)p. 89:

(5) Trade Bank Pc. V. Chami (2003) l3 NWLR (Pt. 836) p.158 and

(6) Ogbu V. Wokoma Supra at p. 135

In the instant case, although the Respondent did not claim in her so called counter-claim a declaration to the title to the property in dispute. She also failed woefully in her frantic attempt to put in her alleged Certificate of Occupancy, Exhibit “D2”. Despite, the learned trial Judge dismissed the Appellant’s claim and went ahead to specifically find in favour of the Respondent. The learned trial Judge after the evaluation of the evidence adduced by both parties found in favour of the Respondent as follows:

“— she has all along been in control over the property in dispute…”

It appears to me that this kind of finding is somewhat strange. With due respect to the learned trial Judge, I must say that the finding is lacking in legal substance, standing and effect.

On the matter of the admissibility of Exhibit “D3”, the purported building plan put in by the Respondent to establish her ownership of the house in dispute, learned counsel for the Respondent argued that the trial court properly admitted the document in line with the provisions of Sections 2 and 3 (1) (b) (i) & (ii) of the Survey Law, Cap. 129, Laws of Northern Nigeria, 1963, applicable in Kogi State. The Appellant’s counsel however observed that Exhibit “D3” was merely stamped by the Health Department of Idah Local Government.

In my humble view, the document was not prepared and signed by a qualified and registered Surveyor as required by the provisions of the said Section 3(1) (b) (i) of the Survey Law Supra. The further requirement that a building plan be counter-signed by the Surveyor-General will only arise and become necessary subsequent to the preparation and signing of it by a Surveyor first and foremost. I have examined the purported building plan Exhibit “D3”, it does not contain the details including the signature of the Surveyor that prepared it. This is indicative of non-compliance with the above stated legal requirements, it is therefore an inadmissible document. The effect of admitted inadmissible evidence is that the inadmissible evidence shall be treated as if it had never been admitted. See the cases of:

(1) Kamalu V. Ojoh (2000) 11NWLR (pt. 679) p. 505;

(2) Ita V. Dadzie (2000) 4 NWLR (pt. 652) p. 168;

(3) Thompson V. Arowolo (2003) 7 NWLR (Pt. 818) p. 163 and

(4) Odogwu V. Onochie (2002) 8 NWLR (Pt. 769) p. 254.

In the instant case, it becomes imperative for me to reject Exhibit “D3” being an inadmissible evidence. It is hereby rejected. This of course is a nail in the box of the case of the Respondent.

From my foregoing extensive analysis, I resolve issue one in favour of the Appellant.

ISSUE TWO

In determining whether the counter-claim of the Respondent is statute-barred, the commencement of the counter-claim of the Respondent must be viewed and taken together with the filing of the Appellant’s claim. The determining factors and questions in deciding whether or not an action is caught by a statute of limitation are:

(a) whether there is a cause of action;

(b) when does the cause of action arise?

Indeed, the phrase, “cause of action” means a complaint, civil right or obligation for determination by a court. The factual situation or combination of facts which enables a person to obtain a judicial relief or remedy with respect to injury. Therefore it consists of all facts which would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment. Seethe cases of:

(1) Akinbode V. Chief Registrar (2003) 3NWLR (Pt 808) p. 585,

(2) U B.N Plc. V. Umeoduagu (2004) 13NWLR (Pt. 890) P, 352;

(3) Nwankwo. V. Ecumenical Dev. Co. Society (2002) 1NWLR (Pt. 749) p. 513;

(4) Owodunni V. Reg. Trustees of C. C. C. (2000) 10 NWLR (pt. 675) p. 315 and

(5) S.P.D.C (Nig.) Ltd V. X.M. Fed Ltd (2006) 6 NWLR (Pt.1004) p.189.

Having found under issue one that the Respondent has no foundation upon which she can build her alleged claim, it follows that she does not possess the legal standing to commence her supposed counter-claim, I refer to the well-acclaimed saying of the late erudite Lord Denning (Master of the Rolls) in the case of: Macfoy V. U.A.C (1961) 3 WLR PC 1405 that:

“You cannot put something into nothing and expect it to stay there, it will collapse.”

See also the case of: Ngige V. Obi Supra at p. 82,

She cannot successfully maintain a cause of action against the Appellant and I hold so, Consequently, the matters of the defences of estoppel, lashes, standing-by and acquiescence become extinguished from the scope of the consideration and determination of this appeal.

I will now move on to consider the propriety of the learned trial Judge non-suiting the respondent’s counter-claim, Usually, the power to enter a non-suit rather than making an order dismissing a party’s claim is discretionary, It is trite that at all times, a court must exercise its discretion judicially and judiciously. The power to enter a non-suit will therefore depend on the circumstances arising from the facts or the state of evidence presented or conceded in each particular case. It has been held that before exercising that discretion and delivering its judgment in respect thereto, courts are enjoined to invite parties to address it on the propriety or otherwise of non suiting any or both parties. The decision of the court in this regard must meet the justice of the particular case. See the cases of:

(1) Graig V. Graig (J969) All NWLR p. 155;

(2) Ngwu V.Onuigbo (1999) 13 NWLR (pt. 636)p. 512 and

(3) Ibiyemi V. F B. N. Plc (2003) 17NWLR (pt. 848) p. 196.

The implication of non-suit is that, although on that particular occasion the party has failed to prove his case, he will not be denied an opportunity to have another bite of the ‘Cherry or another chance to go the second time in proving his claim. An order non-suiting a party cannot be made where on the facts, the party has not proved his claim. In the instant case it has become clear that the Respondent did not have any counter – claim to prove.

Normally, when a trial court exercised its discretionary powers judiciously and judicially, an appellate court will not interfere. Before it can be said that a Judge exercised his discretion judicially and judiciously, that is to say with sufficient, correct and convincing reasons and not on his whims, and fancies, he must have examined and considered all the materials before him side by side with all applicable laws. See the cases of:

(1) Ibiyemi V. F B. N Plc. Supra at k. 211

(2) UB.A. Ltd V. Stahibu G M. B. H & Co. K B. (1989) 6 SC (pt. 1) p. 22.

However where the exercise of the trial judge’s discretion is suspect, for instance if it was wrongly exercised, tainted with illegality and serious irregularity and it is generally in the interest of justice, an appellate court will boldly step in to reverse it in such deserving circumstances. See the cases of:

(1) Nzeribe V. Dave Engineering Co. Ltd (1994) 8 NWLR (pt. 361) p. 124;

(2) Anyah V. A.N.N Ltd (1992) 6 NWLR (pt. 247) p. 319 and

(3) University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 143) p.148.

In my opinion the exercise of the trial court’s discretion in non-suiting the Respondent having regard to the circumstances of this case can not be said to have been judicious. The learned trial Judge did not invite the parties’ counsel to address him on the point before he made his pronouncement, in respect thereof. The order did not meet the justice of the case. It was inappropriate and I hold so. I find it necessary to disturb the findings of the trial court in this case. Issue two is also resolved in favour of the Appellant.

Before I proceed to make the appropriate consequential orders in the appeal, I consider it apposite to avert to and find on reliefs (iii) & (Iv) sought by the Appellant in the trial court.

Relief No. (iii) prayed for by the Appellant is:

“General damages in the sum of N200, 000.00 for acts of trespass and disturbance of the quiet possession of the plaintiff”

There is no doubt that this relief was claimed and pleaded. I have however perused the record of proceedings, and I find that no evidence was adduced by the Appellant in prove of the claim. The trial court did not therefore have any material for necessary assessments and pronouncement in that regard. In the circumstance, it is also safe to conclude that this claim has been abandoned.

Also, the Appellant in Relief No. (iv) prayed for: “Cost of this action.”

Costs of actions or solicitor’s fees are in the realm of special damages which must be specially pleaded and strictly proved. In the instant case, the Appellant did not specially and specifically plead the details of the amount of money expended by it in the prosecution of the litigation in the trial court. It also did not adduce any evidence in prove of this. It is also deemed that this non-specific claim has been abandoned.

It is trite that pleadings not proved are deemed abandoned. See the cases of:

(1) AkinsanyaV. Soyemi (1998) 8 NWLR (Pt. 560) p. 49;

(2) Ariay Ltd V. A. M. S. Ltd (2003) 7 NWLR (Pt. 820) p.577 and

(3) Olasa V. Ezimuo (2003)17 NWLR (pt. 848) p. 129

In the given circumstances, the Appellant is not entitled to be awarded any amount as general damages and or costs of the action in the trial court and I hold so.

In the final analysis this appeal succeeds on the whole and it is hereby allowed. The judgment of the High Court of Kogi State holden at Anyigba per S. T. Hussaini J. delivered on 7/5/2004 is accordingly set aside. In exercise of our powers under Section 16 of the Court of Appeal Act, 1976, judgment is entered for the Appellant in the following terms:

(1) It is hereby declared that by the auction sale conducted by M/S U.B.A. Plc, on 23/03/2001, the Appellant is the beneficial owner of the property situated at No.5, Idah Ajaka Road, Opposite G.RA, Igala – Ogba, Idah, Kogi State covered by the Certificate of Occupancy No. 695 dated 9th day of September, 1988 and a Deed of Legal Mortgage dated 18th day of October, 1988, registered as No. 47 at page 47 in Vol. 1 Misc., at the Lands Registry, Lokoja, Kogi State.

(2) An order of perpetual injunction restraining the Respondent, her agents, privies, servants or whosoever acts for her from trespassing of committing further acts of trespass on the property of the Appellant described in the preceding order (1) above. There shall be no order on costs.

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Other Citations: (2007)LCN/2587(CA)