Lamulatu Shasi & Anor. V. Madam Shadia Smith & Ors (2009)
LAWGLOBAL HUB Lead Judgment Report
M.S. MUNTAKA-COOMASSIE, J.S.C
The Respondents, who were the Plaintiffs at the trial court, in their writ of summons and statement of claim claimed against the Appellants as follows;-
“(a) DECLARATION that the property situate at No 6 Bridge Street, as shown in the plan attached was the property of Aliyu Enukunmi and that the three branches of the Enukunmi Family – Williams – Galubi. – Mustafa are entitled in equal shares to the said property.
(b) AN ORDER of possession against the 1st and/or 2nd Defendant to vacate and deliver up possession of rooms and appurtenances to the plaintiffs.
(c) AN ORDER that all accumulated rents and/or arrears of rent due and payable to the plaintiffs be paid.
(d) AND for such other Order/s as this Honourable Court may deem fit to make.
Both parties filed and exchanged their respective pleadings and called witnesses in support of same. At the close of the case the trial Judge found no merit in plaintiffs’ case and dismissed it. In reaching its conclusion, the trial court held as follows: – (On page 195 2nd paragraph):-
“Exhibit A showed that the plaintiffs’ parents declared that the property was the property of Sunmonu as averred by the defendants, that Sunmonu was the father of Amodu and Abudu Salami Sunmonu, and that is not all. Exhibit A also showed that Amodu was in fact the father of the plaintiffs’ parents namely, Jarinatu Williams, Selia, Senabu, Mutairu and Mustafa, as asserted by the defendants. This is corroborated by the PW1 when she said that Falilat, Mustafa 3rd plaintiff was member of the same Idi Igi. Exhibit A was an instrument executed in 1926 and registered as No. 15 at page 15 LR 24 vol. 409/34. I believe the contents of Exhibit A. that is no iota of truth in the evidence of the plaintiffs that Arriodu was not the father of the plaintiffs’ parents. In fact when construed properly Exhibit A showed that there were actually two Idi igi, i.e. that of Amodu and that of Abudu Salami Sunmonu.
I also believe the evidence of the 2nd defendant that Amodu was also the father of Ramotu Amodu and also maternal great – grand father of the 1st defendant, Airatu Aromire.
I found proved and I hold that it was as a result of the fact that the where about of Ramotu Amodu were unknown and that she was presumed dead that her name was not mentioned in Exhibit A. I also find that at the end of the proceedings in this action the defendants succeeded in establishing a better title than the plaintiffs. In the result the plaintiffs’ claim totally fails and it is accordingly hereby dismissed.”
Dissatisfied with the judgment of the trial court, the plaintiffs successfully appealed to the Court of Appeal Lagos Division hereinafter called the lower court. The court heard the appeal and allowed it. In the lead judgment of Aderemi JCA as he then was held thus :- See pp 424 – 434 of the record.
“I pause to say that on the state of the pleadings issue No 3 on the Appellants brief which relates to the correct application of the principle in Kojo II Vs Bonsie (1957) 1 WLR 1223 is non Sequitur. The defendants/Respondents have admitted being on the property indeed the 1st defendant/respondent admitted being on the property since 1945. They also by their paragraph 6 admitted that they have not being paying rents. Issues No. 1,2,4,5,6 and 7 of the Appellants’ brief of argument must be resolved in their favour. And I so resolve than. (sic) I have said issue No.3 is non sequitur. As a corollary all the seven issues raised by the respondents are already resolved against them. For all the reasons I have stated, this appeal is adjudged to be meritorious. It is accordingly allowed”.
This is a unanimous decision as Oguntade and Amiru Sunusi JJSC also concurred. The Plaintiffs won the battle before the court below. The defendants being dissatisfied with the above decision appealed to this court and filed a Notice of appeal containing five grounds of appeal and dated 4th February, 2002. They are reproduced hereunder as follows: –
GROUNDS OF APPEAL
“(i) The Learned Justices of the Court of Appeal erred in law when they held that paragraph 3 of the Appellants/Defendants statement of Defence was an admission of paragraphs 1,4,6,8,9,10,11 and 12, of the respondents/plaintiffs’ statement of Claim when that issue was not one of points raised in the appeal or canvassed by either of the parties to the appeal.
PARTICULARS OF ERROR
The Issue of pleadings was not one of the Grounds raised in the Respondents’ Notice of Appeal before the Court of Appeal. No issue was made out of it in the brief by both parties and the appeal was not focused on that point.
(ii) The Learned Justices of the Court of Appeal erred in Law by NOT determining whether or not there was a Tenant/Landlord Relationship between the Appellants and the Respondents and ordered that all accumulated rents due and payable to the Plaintiffs/Respondents be paid.
PARTICULARS OF ERROR
The Appellants in their issue No. (i) invited the Court of Appeal to determine whether or not there was at anytime a Tenant/Landlord Relationship between the Appellants and the Respondents.
The Court of Appeal did NOT consider this issue or make any finding on it but proceeded and ordered that accumulated rents due and payable be paid.
(iii) The Learned Justices of the Court of Appeal erred in law by NOT considering all the seven. (7) issues raised for determination in the Appellants. Brief of Argument and make specific findings on them and thereby came to a wrong conclusion.
(iv) The Learned Justices of the Court of Appeal erred in law in their construction and application of Exhibit “A”, the Deed of partition in the absence of any other evidence and thereby came to a wrong conclusion.
(v) The Learned Justices of the Court of Appeal erred in their omission to determine the relevance of the principle in Kojo II Vs Bonsie (1957) 1 NWLR 1223 to this appeal.
In accordance with the rules of this court both parties filed and exchanged their brief of argument. The Appellants in their brief dated 14/11/05 formulated four (4) issues for determination thus:-.
“(i) Whether the Court of Appeal was right to have suo moto raised and decided on an issue not submitted by parties for adjudication without first calling on parties to address on it.
(ii) Whether a court is not bound to consider and make findings on a fundamental issue properly formulated before it.
(iii) Whether Exhibit A (Deed of Partition) relates to the subject matter of the suit.
(iv) Whether the omission and or failure of the Court of Appeal to consider and determine the relevance of the principles In KOJO II Vs BONSIE (1957) 1 WLR 1223 to the appeal is fatal.
The Respondents submitted two issues for our consideration of this appeal as follows:-
“(a) Whether the Court of Appeal was right in taking the issues formulated by the parties together where such issues are interwoven.
(b) Whether the Court of Appeal acted properly in re-evaluating the evidence before the trial Court”.
At the hearing of the Appeal, the learned counsel for the Appellants adopted their brief of argument and urged this court to allow the appeal.
On the issue one formulated in his brief, learned counsel submitted that in all the issues submitted for determination before the lower court, there was no where the issue of admission i.e. whether the averment in paragraph 3 of the statement of defence amounted to an admission, of the respondents statement of claim was raised by the parties before it. It was therefore the learned counsel submission that for the lower court to have based its judgment on the alleged admission suo moto without affording the parties an opportunity to address the court on it; and as such this occasioned miscarriage of justice. Learned counsel relied on the following cases:-
“(i) Usman Vs Umaru (1992) 7 NWLR (pt 254) 377 at 398;
(ii) Ojo Osagie Vs Adonri (1994) 6 NWLR (part 349) 131;
(iii) Akinfolarin Vs Akinnola (1994) 3 NWLR (pt 335) 659 at 690″.
On the other hand learned counsel submitted that even if the issue of an alleged admission has been properly raised, an action for declaration of title cannot be determined based on an alleged admission in the pleadings. The party claiming has the burden to prove his title and burden never shifted. Counsel cited the following cases in support:-
(i) Salu V. Egeibon (1994) 6 NWLR (pt 348) 23 at 44.
(ii) Motunwase V. Surungbe (1988) 5 NWLR (pt 92) 90/92.
On the issue No 2, the Appellants counsel submitted that the lower court was wrong for not determining the fundamental issue of whether there was a Landlord/Tenant relationship between the parties at any given time in respect of No 6 Bridge Street, Lagos. It was his submission that the lower court was bound to consider all the issues properly raised before it, except where the determination of sole issue could determine the appeal, for example a thrash-hold issue of jurisdiction; cases of Sapara Vs U C U Board (1988) 4 NWLR (part 86 58/61; Oro Vs Falade (1995) 5 NWLR (pt 396) 385/402; F.C.D.A. Vs Sule (1994) 3 NWLR (pt.332) 257/270, were cited.
On the 3rd issue learned counsel submitted that the lower court was in error when it held that Exhibit A does not relate to the subject matter in dispute in this case. Counsel referred to the findings of the trial court which was based on the evidence in Record and it was wrong for the lower court to have reversed the findings and substituted its own.
Learned counsel cited the case of:-
Eloichin (Nig) Ltd Vs Mbadue (1986) 1 NWLR (part 14) 47 at 51. He then submitted that Exhibit A is clear and unambiguous and the lower court ought to have given it simple and ordinary meaning. The cases of:-
U.B (Nig) Ltd Vs SAY (Nig) Ltd (1994) 8 NWLR (pt 361) 150 at 165; and U.B.N Vs Ozigi (1994) 3 NWLR (pt 333) 386 at 403 were cited.
On the 4th issue learned counsel submitted that it was an error on the part of the lower court for failing to consider the principles in KOJO II Vs BONSIE (supra) which rests the burden of proof in action for declaration of title on the plaintiffs. He cited the following cases:-
(a) Adewuyi V. Odukwe (2005) 4 NWLR (pt 945) 473 at 491;
(b) Ojomo Vs Incar (Nig) Ltd (1993) 7 NWLR (pt 307) 534/546.
The learned counsel for the Respondents adopted his brief of argument and urged this court to dismiss the appeal. On his first issue it was the submission of the counsel that the lower court was right to have taken all the issues together as they were interwoven. It was right for the lower court to determine the appeal by considering one ground of appeal or issue formulated if that ground or issue will formally determine the matter between the parties and cited the case of F.C.D.A Vs SULE (1994) 3 NWLR(pt 332) 256 at 352.
On the second issue, the learned counsel submits that the lower court has the power to upset the findings of facts made by a trial court to alter, reverse or set aside such findings of fact which are unsupported or drawn from the evidence or pleadings; he cited in support the case of:-
Omoborinola II V. M. I. Gov. Ondo State (1998) 14 NWLR (pt 584) 89. Learned counsel also submitted that by virtue of Section 16 of the Court of Appeal Act, the lower court can correct the findings of the trial court. It was therefore his submission that the lower court was right in its judgment that if the trial court had properly evaluated the pleadings by the parties it would have discovered that the appellants had admitted the title of the Respondents through paragraphs 1,4,6,8,9,10,11 and 12 of the Appellants statement of claim; the following cases were cited.
Beverages Ltd V. Pepsi Cola International Ltd (1994) 3 NWLR (pt. 330) 12 ; and
Ekpa V. Utong (1991) 2 NSCC 278.
I have carefully perused and analysed the judgment of the lower court, it is apparent that the said judgment was based on the alleged admission of the Respondents title by the Appellants in their statement of defence that formed the basis on which the lower court allowed the Respondent’s appeal, it is therefore necessary to reproduce the affected paragraphs of the pleadings. In paragraphs 1,4,6,8,9,10,11 and 12 of the statement of claim, the Respondents averred as follows:-
(1) The plaintiffs are descendants and member of the Alfa Erukunmi Family.
(4) The plaintiffs institute this action as representatives of Aliu Erukunmi Family and have obtained leave of the court to prosecute the matter in such capacity.
(6) The said Aliu Erukunmi in his life time had 5 children namely – Jarinatu, Seliasy, Senabu, Mutairu – and Mustafa.
(8) The 3 existing branches (Idi – Igi) of the Erukunmi family are:-
(a) Williams – who descended from the Jarinatu Williams branch.
(b) Galubi, who descended from Senabu branch.
(c) Mustafa who descended from the Mustafa branch.
(9) The plaintiffs aver that the Jarinatu Williams died intestate many years ago leaving behind Shadia Smith (nee Williams) (the 1st plaintiff who is the head of the Williams Branch) as the head of the entire Erukunmi Family.
(10) The plaintiff avers that the said Senabu died intestate many years ago leaving behind children and grand children one of who is Ibrahim Galubi (the 2nd plaintiff).
(11) The plaintiffs aver that the Mustafa died many years ago leaving behind children and grand children one of whom is Falilat Mustafa (the 3rd plaintiff).
(12) The plaintiffs aver that the 1st and 2nd defendants are not members of the Abu Erukunmi not being traceable to any of the 3 branches”.
The appellants, in paragraph 3 of their statement of defence averred as follows:-
“The defendants are not in a position to admit or deny paragraphs 1, 4, 6; 8, 9, 10, 11 and 12 of the statement of claim and put the plaintiffs to the strictest proof thereafter”.
In considering these averments i.e paragraph 3 of the statement of claim the lower court held as follows:-
“Indeed the types of traverse have been held to amount to an admission see:-
(i) Lewis v. Peat (NRI) Ltd. v. Akhimien (1976) 1 ALL NLR (Pt.1) 460.
(ii) Chief (Mrs) Akintola & Anr. V. Mrs Salako (1986) 2 NWLR (pt. 24) 598; and
(iii) Osafile V. Odi (1994) 2 NWLR (pt. 325) 125.
Perhaps I should add that what is admitted need no further proof’.
It is on the basis of this that the lower court gave judgment to the respondents. However, the learned counsels to the appellants have argued strenuously that the lower court was wrong on two grounds:-
(1) The issue that of paragraph 3 of the statement of defence amounts to an admission was not raised by either party, and
(2) An action for declaration of title cannot be determined based on alleged admission in the pleadings the burden is on the plaintiffs to establish their title on credible evidence.
I must point out here that the respondent’s brief of argument is of no assistance in this respect, as it failed to address or reply the appellants’ brief on the legal issues put forward. Be that as it may, I have carefully gone through all the issues submitted to the lower court for determination nowhere was the issue of admission in the defence pleadings raised. No doubt the issue was raised and determined suo motu by the lower court without affording the parties the opportunity to address it on it. I quite agree therefore with the learned counsel to the appellants that the approach adopted by the lower court has in fact occasioned mis-carriage of justice. This is particularly so, when the decision of the lower court was based solely on this issue of admission in the pleadings. This court in the case of Ojo Osagie V. Adonri (1994) 6 NWLR (pt. 349) 131 at 154, laid down the principles as follows:-
“The duty of the court is to consider the case before it in the light of the parties complaints. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. To do so will result in the denial to one or the other of the parties of his right to fair hearing”.
At p. 155, this court concluded thus:-
“It is wrong for an appellate court to formulate or raise an issue suo motu no matter how clear it may appear to be, and proceeded to resolve it and to decide the matter before it on that issue without hearing the parties on such issue so formulated. If the court must raise any new issue suo motu, it must draw the attention of the parties to it and give them the opportunity of addressing it on such issue”.
See also Carlen (Nig) Ltd V. Unijos (1994) 1 NWLR (pt. 323) 631 at 665, and lrom V. Okimba (1998) 3 NWLR (pt. 540) 15 at 25″.
The issue of whether the averment contained in paragraph 3 of the defence amounts to an admission of the paragraphs in the statement of claim was not raised by any of the parties. The lower court raised it suo motu without calling the attention of the parties to address it on it. And subsequently based its judgment on it, with due respect, it is my humble view that this has occasioned a miscarriage of justice on the part of the appellants having been denied their rights of fair hearing. I therefore resolve this issue in favour of the appellants.
In any case, and assuming the issue of admission was properly raised and determined, the question that is agitating my mind is, can an admission in the defendants pleadings/defence grant the plaintiffs claim for declaration of title to land In view of the burden of proof placed on the plaintiff, and the decision in Kojo II V. Bonsie supra. It is trite law that the burden of proof is always on the plaintiff in an action for declaration of title.
An evasive pleadings or averments such as “the defendants are not in a position to deny or admit paragraph …” is of no moment at all in an action for declaration of title to land. The plaintiff must discharge the burden of proof placed on him by proving its title to the satisfaction of the court. This court has settled this legal issue in the case of Motunwase V. Sorungbe (1988) 5 NWLR (pt. 92) 90/92 when it held as follows:-
“A fact which is admitted by the other side need no proof. But in a case such as one for declaration for title where the onus is clearly on the plaintiff to lead a strong and positive evidence to establish his case for such a declaration, an evasive averment such as “the defendant is not in a position to deny or admit paragraphs”, and will put the plaintiffs to the strictest proof thereof ….” does not remove the burden on the plaintiff…”.
See also Saliu V. Egbeibon (1994) 6 NWLR (pt. 348) 23 at 44. I therefore hold that if the lower court had properly raised the issue, of admission in the pleadings, it is still amounts to an error in law to have granted the respondents claim for declaration of title based on the Said admission in the pleadings. The onus of proof is always on the plaintiff – Kojo II V. Bonsie (supra).
My Lords, in the final analysis I hold that this particular appeal has merit and it is allowed by me. The judgment of the lower court dated 4/2/02 is hereby set aside. While the judgment of the trial court dismissing the respondents claims is hereby restored and affirmed. N50,000.00 costs to the appellants.
SC.18/2003
