Mathias Sunday Ezejesi V. Philip Ikechukwu Ezejesi (2008)
LawGlobal-Hub Lead Judgment Report
OLUKAYODE ARIWOOLA, J. C. A.
This is an appeal against the judgment of the Onitsha High Court presided over by Uzoewulu, J. of the Anambra State Judiciary.
The said judgment was delivered on 4th February 2003 against the plaintiff.
The Plaintiff, who is the Appellant herein had before the trial Court claimed in the Amended Statement of Claim against the defendant as follows:-
“(i) A declaration that the Plaintiff and the Defendant are jointly owners of All THAT developed property (one storey building) lying and situate at NO.3 Awka-Etitl Street, Awada Layout, Obosi which is particularly delimited (sic) in a licensed Survey Plan No. TLS/AN/D201/92 filed along with this pleading, such that the plaintiff owns two flats thereof (one in each floor) and the defendant owns four floors (sic) (two in each floor).
(ii) An account of all the moneys and rents which the defendant has been collecting from the property since 1st April 1999 till judgment in this suit.
And an order for the payment by the defendant to the plaintiff of all such moneys and rents found due to the plaintiff.
(iii) An Order of the Court compelling the defendant to restore possession of the said two flats to the plaintiff.
(iv) An account of the moneys earned by the defendant from August 1985 till judgment in this suit in the Engine Oil joint business aforesaid,
And an order for payment by the defendant to the plaintiff of all such moneys and profits found due to the plaintiff in the ratio of 4.2 (i.e defendant 2/3 and plaintiff 1/3 of the profits thereof).
(v) An order by the Court compelling the defendant to return the plaintiff’s N7, 000.00 contribution.
(vi) An injunction restraining the defendant by himself, his agents, workmen or servants or otherwise howsoever from excluding the plaintiff from the said two flats and premises in any way howsoever.
(vii) N30, 000.00 (thirty thousand Naira) general damages for wrongful exclusion of the plaintiff by the defendant from the two flats aforesaid,”
The gist of this case is that the appellant who was the plaintiff at the trial court and the defendant/respondent are brothers of half blood. It is the appellant’s case that sometime In 1983, the respondent, then a dealer in Engine Oil, approached him and prayed the plaintiff to contribute the sum of Seven thousand Naira (N7, 000.00)to enable the respondent continue his business of Engine Oil. The appellant paid this money and after trading with the money for about one year, the respondent gave the appellant the sum of N20,508.00 as his share of the profit made from the engine oil trade.
In the said business of engine oil, the appellant admitted being the dormant partner while the respondent was the active partner. Out of the profit on the business, the respondent purchased a parcel of land in his own name and both parties jointly erected a building containing six (6) flats on the said land. The parties agreed to share the said six flats in ratio 2-4, the appellant and the respondent respectively. The agreement to share the said flats was later reduced into writing. Thereafter, the respondent destroyed the document and started laying exclusive total claim to the whole property and the entire engine oil business. The relation of the parties intervene in the dispute.
The respondent in his own case claimed that the seven thousand Naira (N7, 000.00)he got from the appellant was a loan but not a contribution to his business of engine oil. The respondent said he already paid back the loan to the appellant.
He stated further that he single handedly purchased the land and built on it as sole owner without any financial interest of the appellant in the project. The appellant was only a supervisor to the building project. He conceded that he promised to give the Appellant two flats in the building but later resiled on his promise. He made refund of monies the appellant claimed he expended on the building project. The matter eventually ended up in court.
Pleadings were duly exchanged and the case proceeded to trial. In a reserved judgment, the plaintiff’s entire claims were disallowed and case was dismissed.
Dissatisfied with the said judgment, the plaintiff appealed with Notice of Appeal dated 14th March, 2003 but filed at the lower Court on 15/4/03. The grounds of Appeal contained in the said Notice of Appeal are as follows:-
“(i) Error in Law:
The Learned trial Court erred in law in holding that there was no partnership between the parties.
PARTICULARS:
(a) The learned Trial Judge hung his conclusion that there was no partnership on the fact that there did not exist any partnership agreement or articles setting out the terms of the partnership and that the appellant does not know anything about the engine oil business apart from the N7, 000.00 the appellant gave to the respondent.
(b) The Learned Trial Judge did not consider the status of sleeping or dormant partners who may even have contributed nothing and the fact that an arbitration panel had earlier found the appellant to be a partner thereof (Exh A.)
(c) The said Judge did not consider that partnership can be construed to exist on the mode of dealing by the parties.
(ii) Error in Law:
The learned trial Court erred in law in holden that there was no evidence to back up the appellant’s allegation that N21, 505.00 was appellant’s share of profit in the engine oil business.
PARTICULARS:-
(a) Appellant in his examination-in-chief and cross examination had testified that N21, 508.00 paid to him by the respondent was part of his profit in the engine oil business, which was later found correct by the arbitrators that consequently produced exhibit A.
(b) That court nevertheless, treated the N21, 508.00 as mere payment for purchases and alleged loan of N7,000.00.
(iii) Error in Law:
The Learned trial Judge erred by rejecting Exhibit Q as having no evidential value and did not convey any joint ownership.
PARTICULARS
(a) The appellant gave evidence that some time in 1990 he agreed to sharing of the six flats so that respondent takes 4 and he 2 and that the agreement was reduced into writing by counsel (Exh Q). Although the agreement was latter cancelled by the respondent, he (appellant) picked a part of it which he tendered as Exh Q.
(b) 3rd P.W. (Samuel Umenze) gave evidence that both parties told him that they had settled their dispute over the house in the ratio of 4:2 aforesaid.
(c) The trial court found solace in rejecting exhibit Q, inter alia on the lame fact that it was only part of the written agreement, which unless read together with its other parts, could not be relied upon. Nevertheless, that court went ahead to hold that exhibit Q confirms the exclusive ownership of the house by the respondent.
(iv) Error in Law
The learned trial Judge erred by concluding from the technical words “beneficial owner” used in favour of the respondent in Exh. Q to the effect that the plaintiff is not part owner of the house.
PARTICULARS:-
(a) The trial court held hat Exhibit Q has no evidential or probative value, but turned round to found here judgment on it as supporting the view that the appellant was not part-owner of the house.
(b) Even the defendant under cross-examination said he did not know the import or meaning of beneficial owner.
(c) The trial court none-the-less reached its conclusion on Exh Q in favour of the respondents, after holding that Exh Q was only a part of the agreement and cold not be construed in isolation of the rest.(sic)
(v) Error in Law:
The learned trial Judge erred in Law in holding that Exh. A was not binding on the parties and cannot be used as estopped (sic) against the respondent.
PARTICULARS:-
(i) The parties voluntarily submitted to a panel of arbitrators.
(ii) The trial court held that the respondent could not be bound by the decision of the arbitrators, since he did not accept it then.
(vi) Error in Law:
The learned trial Court was in error by failing to declare that the parties are joint-owners of the said house (No.3 Awka-Etiti Street, Awada Layout, Obosi) and thereby declined to make an order for the respondent to account to the appellant for all moneys/rent due to the appellant in respect of the property.
PARTICULARS:-
(i) Quite apart from the evidence on record, a panel of arbitrators on the issue of partnership and or joint-owners of the said house found the existence of partnership in the engine oil business and or joint-ownership of the house in the ratio of 4.2 aforesaid.
(ii) The Trial Court in holding that the respondent was not bound by Exhibits A & Q resolved that the appellant was not entitled to any rent from the house.
(vii) Error in Law:
The learned trial Judge erred by refusing to make an order granting and or restoring possession of the said two flats to the appellant.
PARTICULARS:-
(a) The appellant testified that following their agreement leading to Exh Q he had taken possession of two flats in the house, but was later dispossessed by the respondent, using Omata (thugs).
(b) The trial court disbelieved the appellant that he never occupied the two flat.
(c) That court did not consider why exhibit E should have existed in any case.
(d) That court placed much emphasis on the 2nd DW’s evidence and exhibit “U”, which showed that only N13, 000.00 was spent on the much bounced about respondent’s contractor (2nd DW).
(viii) Error in Law:
The learned trial Judge erred by failing to award general damages to the appellant.
PARTICULARS:-
(a) On the evidence before he Court including exhibits tendered by the appellant, the order ought to have been made.
(b) In examination-in-chief, the 1st D.W. (respondent) admitted taking part in the arbitration leading to Exhs A and E. Under cross-examination he denied being a party to the arbitration.
(c) The trial court nevertheless preferred the evidence of the 1st D.W., rejected exhibits A & Q and held also that the other exhibits for purchases by the appellant, were repaid the appellant by the respondent.
(ix) Error in Law
The trial Court erred in law by rejecting Exhibits M, M1-M7.
PARTICULARS:-
(a) There was no evidence that the documents were made in contemplation of the suit; the dates on them preceded the date the suit was filed, but the trial court held otherwise.
(b) Absence of the name in the pleading or evidence, is immaterial to relevancy of the document itself.
(c) The findings of the trial court that the name of the supervisor was not stated in the receipts, nor signed same, is not borne out by the receipts aforesaid (Exhs M, M1/M7).
(x) Omnibus
The judgment of the said Court is erroneous and unwarranted having regard to the weight of evidence.”
In the said Notice of Appeal, the appellant said he was going to file further grounds of appeal on the receipt of the record of proceedings but no evidence that any further ground was filed.
On the 28th June, 2007 the appellant’s brief of argument dated 24th April, 2007 was deemed by this Court to have been properly filed and served, sequel to an application earlier filed on same date.
In the said appellant’s brief of argument, the following six (6) Issues were listed for determination of this appeal.
“(a) Whether or not there was sufficient pleadings and evidence before the trial court to justify the inference of partnership or joint ownership between the plaintiff and the defendant in respect of the engine oil business, and/or ownership of NO.3 Awka-Etiti Street, Awada.
(b) Whether or not a party who voluntarily submitted to a panel of arbitrators under customary law can reject the decision of the panel at anytime after the delivery and publication of the decision or must he do so timeously.
(c) Whether a plaintiff/appellant whose case was entirely dismissed by the trial court must appeal against damages, especially when the trial court failed to consider the issue of damages in the judgment.
(d) Whether or not a trial court which has declared a piece of evidence as having no evidential value can turn round in the same judgment to rely on the same piece of evidence to make his findings on a substantial issue.
(e) What determines the admissibility of document relevancy or weights to be attached.
(f) Whether or not the learned trial judge was right to to have dismissed the appellant’s case in its entirety.”
After being served with the appellant’s brief of argument, the Respondent reacted by filing the Respondent’s undated brief of argument on 28th June, 2007, In the said Respondent’s brief of argument, the only issue the Respondent considered that is meant for determination of the appeal is as follows:
“Whether the learned trial Judge was right in holding that the appellant did not make out a case of partnership in the respondent’s engine oil business and joint ownership of NO.3 Awka-Etiti Street, Awada Layout, Obosi.”
The above issue, the Respondent claimed he formulated from grounds 1, 2, 3, 6, and 10 of the grounds of Appeal filed by the Appellant.
It is pertinent and I consider it important at this stage to state that throughout the argument in the brief, there is no where the appellant linked or related any of the six Issues he formulated with any of the Grounds of Appeal. This, to say the least, is bad drafting of brief. The Appellant’s counsel ought to have stated from which ground of appeal a particular Issue for determination was distilled. Indeed, the way the entire brief of argument, in particular, of the appellant was written leave much to be desired. It does not show that the learned counsel to the appellant was familiar or conversant with the rules of this Court and Supreme Court on brief writing. It is certain that he did not bear in mind or consider at all, the essential three qualities of a good brief, which are, clearity, precision and accuracy. In the result that any brief of argument that lacks these three requirements prevents the Court from comprehending and appreciating what exactly is the party asking the Court to resolve. See:- Ntoe Andrew O. Ansa &. 3 Ors. V. Chief Asuguo,Archibong Ishie &. 16 Ors. (2005) 8 SCM 34.
It has been held by the apex Court that it is very necessary and indeed desirable for the Appellant’s Counsel to always relate or tie or link the issues formulated or distilled for determination in the appellant’s brief to the grounds of appeal from which the said Issues are distilled. However, in the interest of justice and in a bid to do substantial justice to parties, failure to do so may not necessarily lead or result in the Issues being struck out for being incompetent. This will be so, in particular, where the Court considers the issues on a close look on the grounds that the issues can validly be distilled from the listed grounds of appeal. In carrying out its preoccupation, of doing substantial justice between the parties, the Court should consider the Issues in its judgment. See; Alimi Akanbi Dada V. Chie Jonathan Dosumu (2006) 12 SCM(pt 2) 108 at 120.
As earlier shown, from the ten (10) grounds of appeal filed with the Notice of Appeal, the Appellant formulated six (6) Issues for determination. A careful look and critical perusal of the said grounds show that they are grounds of facts, and mixed law and facts even though headed mainly as “Error in law.” It has been held that what is important In determining whether a ground of appeal involved questions of law or fact or mixed law and fact, is not its cognomen, nor its designation as “Error in Law”, It is rather the essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves. See; Ogbechie & Ors. Vs. Onochie &. Ors. (1986) 2 NWLR (Pt.23) 484 at 488, United Bank for Africa Ltd. Vs. Stablban Gmbh &. Co. (1989) 3 NWLR (Pt.110) 374 at 377, Ojemen Vs. Momodu (1983) 3 S.C. 173, Oba Felix Abidoye & Ors. Vs. Oba Jacob Alawoode & Ors. (2001) 5 NSCQR 633 at 642.
Furthermore, from a long list of decided cases, certain principles have been established on how to distinguish a ground of appeal based on law alone, on facts alone or on mixed law and facts. They are:
(i) Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground of appeal is a ground of mixed law and fact, See Maigoro Vs. Garba (1999) 10 NWLR (Pt.624) 555.
(ii) A ground of appeal which challenges the findings of fact made by the trial court or involves issue of law and fact is a ground of mixed law and fact. See; Maigoro V. Garba (Supra).
(iii) Where the evaluation of facts established by the trial court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and facts See; Maigoro Vs. Garba (Supra)
(iv) Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simplicata See Ogbechie v. Onochie (Supra).
(v) Where it is alleged that the trial court or an appellate court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simplicita. See; Nwadike v. Ibekwe (1987) 12 SC 14.
(vi) It is a ground of law if the adjudicating tribunal or court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or if, although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See; O’kelly Vs. Trusthouse Forte P.I. C. (1983) 2 All E.R. at P.486; Nwadike Vs. Ibekwe (supra)
(vii) Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inferences drawn therefrom are grounds of law.
See; Ogbechie Vs. Onoehie (Supra) pp 491-492.
(viii) It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. See; Nwadike v. Ibekwe (Supra).
(ix) Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law. See; Ogbechie v. Onochie (Supra) where Eso, JSC, citing with approval an article by CT. Emergy in Vol. 100 LQR held:-
“If the tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is a question of law.”
See; Mrs. Matilda Aderonke Dairo Vs. Union Bank of Nigeria Plc. &. Anor. (2007) 31 NSCQR475 at 501-502.
In Lambert Sunday Iwueke v. Imo Broadcasting Corporation (2005) 10-11 SCM 139 at 153, the Supreme Court opined that in embarking on task of distinguishing a ground of law from a ground of fact, the Court is to examine thoroughly the grounds of appeal involved to see whether the grounds reveal a misunderstanding of the Law or a misapplication of the law to the facts already proved or admitted, in which case it could be a question of law, or one that would require questioning the evaluation of facts by the lower court before the application of the law. In the latter case, it would amount to a question of mixed law and fact. See; Ogbech Vs. Onochie (supra), Orakosin Vs. Mankiti (2001) 9 NWLR (Pt 719) 529 at 538, (2001) 6 SCM 169.
However, it is necessary to state at this juncture that the Respondent did not raise preliminary objection as the rule requires if he is desirous to raise any objection to the appeal. All what he stated in his respondent’s brief of argument is that issues (b)-(e) framed by the appellant in paragraph 3 page 2 of the appellant’s brief of argument are incompetent and should be struck out.
Learned counsel to the Respondent contended that while ground of appeal highlight the error being sought to be corrected in the judgment, the issues or questions for determination emphasise the kernel of the reason for seeking the correction of the error. He cited, Oladele Vs. The State (1991) 1 NWLR (pt 170) 708 at 718 & 719.
It needs not be said in so many words, that this is not the way the rules require that an objection should be raised to an appeal. The rule is so clear and the peculiar provision is mandatory.
Order 3 rule 15, subrule 1 of the Court of Appeal Rules, 2002 which was applicable when this appeal was filed and is impair material with the new Rules of this Court, Order 10 rule 1, Court of Appeal Rules, 2007 on this issue provides as follows:-
“A respondent intending to rely upon a preliminary objection to the hearing of the Appeal, shall give the appellant three days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
The method of raising objection to the hearing of an appeal is prescribed in the rules. Apart from giving the Appellant three clear days notice of the objection before the date of hearing of the appeal, it is now settled, that the notice may be incorporated or imbedded in the Respondent’s brief of argument or by a formal separate notice or written objection or both, there is need for the Respondent to, with the leave of the Court, move the objection formally before the hearing of the substantive appeal. See; Nsirim Vs. Nsirim (1990) 3 NWLR (pt 138) 285; Okolo Vs. Union Bank of Nigeria ltd (1990) 2 NWLR (pt 539 160; Arewa ile Plc. Vs. Abdullahi & Bros. (1998) 6 NWLR (pt 554) 508; Tiza & Anor Vs. Begha (2005) 3 WRN 158 at 171, (2005) 6 SCM 164, (2005) 5 SCNJ 168 at 178; Patrick D. Magit Vs. University of Agriculture, Makurdi & Ors. (2005) 2N SCM 206 at 232-238.
The object of this requirement of formal notice to the appellant on the objection to his appeal is to safeguard against embarrassing an appellant and avoid his being taken by surprise at the hearing of the appeal. See; Chief Agbake & Ors. Vs. Chief Amadi & Anor (1998) 11 NWLR (Pt 577) 16 at 25, (1998) 7 SCNJ 367 at 370, Auto Import Export Vs. Adebayo& Ors. (2002) 18 NWLR (Pt 799) 554, (2003) 1 SCM 154.
In the instant case, the Respondent should not expect to be taken in any way serious on the way he took an objection in the Respondent’s brief of argument. Indeed, it cannot be said that he has raised any objection to the hearing of this appeal. But assuming without holding that he raised an objection at all, the method prescribed by the rules was not employed in raising the preliminary objection. What is more, not only that the said objection was not formally raised as it should. Leave of Court was not sought to take the objection before the hearing of the substantive appeal. This renders the said objection as having been abandoned, and not to be countenanced. See; Aremo II Vs. Adekanye (2000) 2 NWLR (pt 644) 247; Equity Bank of Nig. ltd. Vs. Halileo Ltd. (2006) NWLR (Pt 980) 568 at 579, (2006) 33 ERN 75, Alhaji T. Mohammed Vs. Alhaji Abubakar Abdulkadir & Ors. (2008) 4 NWLR (Pt 1076) 111 at 142-143, Onochie &. Ors. Vs. Odogwu &. Ors. (2006) 2SCM 95 at 101, A.G. Rivers State Vs. Ude &. Anor.(2006) 12 (pt 1) 4 SCM 72.
The points on the competence of some of the grounds of appeal and issues formulated therefrom, not being purely a matter affecting the jurisdiction of this Court to hear the appeal, which would dispose of the entire appeal, the Court cannot raise it suo motu without hearing the parties on it. See; Tavershima M. Hambe &. Anor. Vs. Agber Hueze &. Ors. (2001) 3 SCM 49 at 54. The purported objection cannot be considered in this appeal. Accordingly, it is hereby discountenanced.
I shall therefore proceed to the appeal on merit.
As earlier stated, the appellant formulated six Issues purportedly from the ten (10) grounds of appeal, but I am of the firm view that this is unnecessary as some of the Issues formulated are rather irrelevant. Ordinarily, appeal is not won based on the quantity of Issues that are formulated but on the quality of such Issues. Proliferation of Issues which serve no useful purpose should be avoided. It is not how much but how well framed and formulated an Issue for determination that is important and matters. See; Chief Sunday Ogunyade Vs. Solomon O. Oshunkeye &. Anor. (2007) 12 SCM (pt 2) 480 at 494.
However, the appellate Court has the right and even duty where appropriate and necessary to formulate issue(s) for the determination of an appeal. In particular, where the Court is of the opinion that the Issues as formulated by the party do not deal with the substantive Issue in controversy in the appeal. The Court is not obliged to accept Issues as formulated by the Appellants in their brief. See; NEKA Ltd. Vs. A.C.B. (2004) 17 NSCQR 240 @ 250- 251. But the issues so formulated by the Court must be consistent with the grounds of appeal filed in the appeal. See; Yadis Nigeria Ltd. Vs. Greel Nigeria Insurance Co. Ltd. (2007) 20 SCM 182 at 196. In other words, a Court is entitled to reframe or reformulate Issues for determination of an appeal in order to give it precision and clarity. See; Okoro Vs. The State (1989) 12 SC 191, (1988) 12 SCNJ 191, Latinore &. Anor. Vs. Bella Lajunfun (1989) 5 S.C 59, Osunbiyi Vs. Ishola (1996) 5 SCNJ 143, Labile Vs. The Registered Trustees of Cherubim &. Seraphim Church of Zion of Nigeria Ugbolba &. 3 Ors. (2003) 2 SCM 39 (2003) 1 SCNJ 463, Unity Bank Plc. &. Anor. Vs. Edward Bonori (2008) 2 SCM 193 at 210.
In the Circumstance, I shall therefore consider the following issues arising from the grounds of appeal filed, for the determination of the appeal as formulated and or reframed by me.
Issues for Determination:
- Whether the parties were indeed partners in business of engine oil. In otherwords, whether the sum of N7,000.00 given by the Appellant was a loan to the Respondent or his contribution to the engine oil business.
- Whether the six flat building was jointly owned by both parties and was built from the proceeds of their joint business of engine oil.
- If 1 & 2 above are answered in the affirmative, Whether the appellant is entitled to account of the money earned by the Respondent from August 1985 till judgment in the Engine Oil business. And general damages for wrongful exclusion from the two flats he occupied.
I shall now take the Issues for determination.
Issues No.1 & 2.
The 1st and 2nd Issues are to be considered together.
In paragraphs 3, 4 & 5 of the amended Statement of Claim, the plaintiff/appellant averred inter alia as follows:-
“3. On or about 1983, the defendant approached the plaintiff, who was then trading at Onitsha for financial assistance in the defendant’s trade. The plaintiff then issued the defendant a cheque for N7,000.00 as the plaintiff’s contribution by way of a joint business in the defendant engine oil business at Onitsha as orally agreed by them. The Merchantile Bank Ltd. Upper Iweka Road, Onitsha cheque for N7,000.00 aforesaid is hereby pleaded.”
“4. Later, the plaintiff and the defendant decided to buy a piece of land at Awda-Lay-Out, Idemili L.G.A. for the benefit of both of them. Both parties agreed that the land would be bought and registered in the defendant’s name as the plaintiff had no income- tax clearance. The land (No.3 Awka-Etiti Street, Awada-Lay-Out, Obosi) was therefore bought in the defendant’s name alone.”
“5. After the land had been bought both parties agreed to develop it by putting up a building thereat. The plaintiff then started to buy building materials (corrugated iron sheets, planks, bags of cement, galvanished tank, bamboos, door and window frames, cement blocks, door and window shutters etc. The plaintiff also paid some block moulders at N3.50 per bag of cement moulded.
Receipts were issued in the name of the plaintiff for any building material he bought for the building and for other expenses, while receipts were also issued in the defendant’s name for any material bought by him towards the building. The plaintiff also supervised work on the building while the defendant was itinerant, travelling to places in pursuit of the engine-all trade.
The plaintiff built a structure at his own expense on the land whereat he stored the building materials. The plaintiff also employed two night-watch men from about April 1984 to November 1984 at N250.00 each per month and paid them out of his pocket. The plaintiff also employed a general supervisor of the building and paid him N250.00 a month out of his pocket, from April 1984 to November 1984. The defendant provided louvers, plastering and flooring of the house, painting, electrical wiring, plumbing and suck-aways, It is to be noted that the defendant’s expenses on the building were coming from the proceeds of the parties said joint business. The plaintiff shall rely and found on his receipt in respect thereof and they are hereby pleased.” (sic)
In his oral testimony, the appellant testified on 31/01/96, inter alia on this issue as follows:-
“I remember the year 1983. In that year the Defendant came to me where I was trading at Ochanja and requested for financial assistance from me for engine Oil trading. I issued him a cheque for -N-7,000. Merchantal (sic Bank Cheque, Iweka Road, Onitsha as my own contribution by way of joint business. I and the Defendant orally agreed for joint business in Engine Oil business. Later we decided to buy a piece of land at Awada Layout for the benefit for us (sic) and we agreed to develop it immediately. We agreed that the land should be registered in the Defendant’s name because I have no tax clearance. We decided to build a house on it and I started to buy building materials i.e. corrugated Iron sheets, planks, bags of cement, galvanished tank, bamboozle doors and window frames, cement blocks, door and window shouters (sic). I also paid for some block moulders at N3.50 per bag of cement, Receipts were issued in my name for any building materials I bought and receipts were also issued in Defendant’s name for any building materials he bought. I supervised the work on the site while the Defendant was travelling to places in pursuit of his Engine oil business. I built a structure on the land where the building materials are stored and employed two watchmen at my own expenses. The watchman were employed by me from April, 1984 – Nov. 1984 and paid each of them N250 per month from my own expenses I also employed the general supervisor from April, 1984 – November, 1984 and paid him N250 per month from my own expenses.
The defendant/respondent denied the above averments and testimony and pleaded emphatically that it was a loan he took from the plaintiff and had since paid back to the plaintiff. The respondent also denied he ever orally agreed with the appellant on any joint Engine oil business. And that he bought land and built on it entirely by himself. He agreed that while he traveled out of town the appellant bought certain building materials and he had since paid him the amount he claimed to have expended on the building construction totaling N17,000.
Partnership is defined as a voluntary association of two or more persons who jointly own and carry on a business for profit. Ordinarily, a partnership will be presumed to exist if the persons involved agree to share the profits or losses of the business proportionally. See; Black’s Law Dictionary, Eight Edition, page 1152.
Partnership may be established by parol evidence but not necessarily firmly in writing but still, the terms of the partnership agreement must be spelt out clearly by the parties. These include, the name of the partnership; the duration of the partnership; the capital needed and its provision in cash and other assets; the firm’s banking account and the drawing of cheque; the sharing of profit and losses; duties and attention to business and management. It may also be necessary to make provisions for the dissolution of the partnership by effluxion of time or death. See; Halsbury’s Law of England, 3rd Edition, Volume 24 page 495.
In the instant case as clearly found by the learned trial judge, there is no evidence of any of the above terms of the alleged partnership. Indeed it is interesting to note that apart from the N7, 000.00 the Appellant gave to the Respondent for him to continue with his business of Engine Oil, the Appellant knew nothing else about the Engine oil business. It is very clear as the appellant admitted that the Respondent had been in the business of Engine Oil before he approached him for financial assistance. In his judgment, the trial Judge held as follows:-
“From the evidence before me, I am satisfied that the ingredients for partnership are not present in this case and that there is no partnership in the Engine oil business between the Plaintiff and the defendant. ”
The learned trial Judge held further “that the N7, 000.00 could not have been and was not plaintiff’s contribution to the Engine Oil business as a partner but rather was a loan to the defendant.” I surely cannot agree more with the above. The appellant failed to establish that there was any partnership agreement between him and the Respondent on the Engine Oil business of the Respondent and that the money he gave to the respondent was his own contribution to the business of Engine Oil as a partner. The law is clear on this point and it is trite that the burden of proof is on the party who alleges the affirmative. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See; Sections 135(1) and 137(1) of the Evidence Act; Onafowokan v. The State (1987) 3 NWLR (Pt 61 538; Emeka Vs. The State (2001) 6 SC 227; Col. Ayanuru Vs. Mandilas Ltd. (2007) 7 SCM 1 at 16, Hilary Farms Ltd. & Ors. v. M/V Mahtra & Ors. (2007) 12 SCM (Pt 1) 157 at 174 Calabar Central Cooperative Thrift & Credit Society Ltd. & Ors. Vs. Bassey Ebong Ekpo (2008) 6 NWLR (pt 1083) 362 at 395.
In the result, it is imperative on the Appellant to prove that he was indeed a partner in the Engine Oil business of the Respondent. Having failed on this duty I am led to the 2nd Issue on whether the six flat building was jointly owned by both parties.
It is note worthy that the appellant’s claim to joint ownership of the building was hinged on the N7, 000.00 he claimed to have contributed and the fact that he paid for certain building materials. But more importantly, the Appellant claimed that the building was built from the proceeds from their joint business of Engine Oil.
Interestingly however, the Respondent testified to the effect that he bought the land on which the building was erected from one Emmanuel Emodi and he tendered the receipt Issued to him, which was admitted as Exhibit S. He obtained a Customary Right of Occupancy, Exhibit T. from Idemili Local Government. Exhibit U is the agreement with the contractor who built the house, one Mr. Basil Nnebe. The Appellant did not have any objection to the above Exhibits and indeed admitted them. There is no doubt that Exhibits S. & T. got to show that the land on which the building stands belongs exclusively to the Respondent as the Appellant did not give any contrary evidence to that effect. It follows therefore that the appellant cannot lay claim to the structure or building on the land indisputably that of the Respondent. The law is trite as embedded in the maxim “Quic quid plantator solo, solo cedit” – meaning, whatever is affixed to the soil becomes in contemplation of law, a part of it, and is subjected to the same rights of property as the soil itself. In other words, whoever owns the land, owns whatever is permanently affixed to it such as building and tree plantation. Therefore, if a man builds on his own land with the materials of another, the owner of the land or soil becomes in law the owner also of the building. Land includes building. See; National Electric Power Authority Vs. Mudasiru Amusa & Anor. (1972) 12 SC 99 at 114 pet Fatai Williams, JSC (as he the was). Nnanta Orianwo &. Ors. Vs. L.O. Okene &. Ors. (2002) 14 NWLR (Pt 786) 156 at 193.
The sum total of the above is that the Appellant failed woefully to prove that he jointly, with the Respondent, own the one storey building containing six (6) flats at No.3 Awka-Etiti Street, Awada Layout, Obosi.
In the circumstance, Issues 1 & 2 are hereby resolved against the Appellant in favour of the Respondent.
Now to the 3rd Issue for determination. As earlier indicated, the 3rd Issue is predicated on the resolution of the 1st & 2nd Issues in the affirmative. But now that the said issues have been resolved against the Appellant, I am not in any difficulty in coming to the conclusion that the issue should be resolved in the negative. In other words, not having established that he was a partner in the business of Engine Oil and for failure to show that the building in question is jointly owned by him with the Respondent, the Appellant is no doubt, not entitled to any account of any money earned by the Respondent in the Engine Oil business. He is equally not entitled to any damages for, as he put it “wrongful exclusion from the two fiats he occupied.” The 3rd Issue is accordingly resolved against the appellant.
In the final analysis, this appeal fails for lacking in merit and it is accordingly dismissed. As a result, the judgment of C.N. Uzoewulu, J., in suit No. 0/425/91 delivered on 4th February, 2003 is hereby affirmed.
There shall be no Order on costs.
Other Citations: (2008)LCN/3061(CA)
