Mrs. Wuraola Omotosho & Ors V. Alhaji Rashidi Eniayenfe Ojo (2007)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This appeal is against the judgment of the High Court of Oyo State Holden at lbadan and presided over by Akinola, J which judgment was delivered on 10th November, 1999. When this appeal fell due for hearing on 11th April, 2007, only the Appellants were represented by counsel. Since briefs were filed and exchanged, the Respondent’s brief was taken as duly argued vide order 6, Rule 9(5) of the Court of Appeal Rules 2002.
The Respondent who was the plaintiff at the court below had approached the High Court for the following reliefs as contained in paragraph 28 of his statement of claim:
“1. A declaration that plaintiff is the owner of the building situate, lying being at S.4/794 Olorunsogo .Akanran Road, Ibadan having bought same legitimately from the owner sometimes in 1992.
- Declaration that the purported sale of the building situate at S.4/794 Olorunsogo Akanran Rand, lbadan by the 4th and 5th defendants to the 1st defendant is null, void and of no effect
- Declaration that the purported purchase of the building situate at S.4/784 (sic) S.4/794 Olorunsogo Akanran Road, Ibadan by the 1st defendant is null, void and of no effect.
- An order granting and restoring possession of the premises known and referred to as S.4/794 Olorunsogo Akanran Road, Ibadan now locked up by the police to the plaintiff.
- Special and General” damages jointly and severally against the defendants for their illegal and forceful entry in to the premises known as S4/794 Olorunsogo Akanran Road, Ibadan belonging to the plaintiff.
On receipt of the statement of claim, the Appellants, who were defendants, filed their statement of defence denying liability whatsoever.
It seems to me desirable at this stage to set out briefly though, the facts of this case which gave birth to (his appeal. The dispute between the parties revolves around the property known and described as S.4/794 Olorunsogo Akanran Road, Ibadan wherein both the Appellants and the Respondent agree that it belonged, originally to one Enoch Ogunsola now deceased. The Respondent and his witnesses state that before Enoch Ogunsola died, he transferred the title over the property which is six bedrooms bungalow to his wife Nasiratu who in turn before her demise sold the house to the respondent.
The appellant as defendants claimed that it was one Sunday Ogunsola, a blood relation of Enoch Ogunsola who sold the property to the 2nd Appellant who later sold it to the 5th Appellant. When the Respondent noticed that some people trespassed into that property, he reported to the police.
Police investigated the matter and thereafter charged the 2nd, 3rd and 4th Appellant to the Magistrate Court. They were however discharged and acquainted on a no case submission. Thereafter, the Respondent filed this suit at the High Court which has given birth to this appeal. Four witnesses testified for the Respondent while two testified for the Appellants.
After reviewing the evidence adduced before him and the addresses of both counsel, the learned trial judge entered judgment for the Respondent on his entire claim for damages.
Piqued by the stance of the learned trial judge in this matter, the Appellant have appealed to this court. The Appellants gave notice of appeal out, dated and filed on 14th January,2000 which contains six grounds of appeal out of six issues have been decoded by the Appellants for the determination of this appeal. The issues are as follows:-
- Whether from the pleading and evidence adduced at the hearing, the learned trial judge properly evaluated the evidence and drew proper inferences and conclusions in granting all the reliefs claimed by the Plaintiff (now Respondent).
- Whether the learned trial judge was right when he held that Enoch Ogunsola in his time gave his landed property subject matter of this appeal to the plaintiff/respondent.
- Whether the learned trial judge was right when he held that Enoch Ogunsola by virtue of Exhibit A transferred his building subject matter of this appeal to Nasiratu Ogunsola.
- Whether the learned trial judge was right when he held that the Appellant did not call evidence to establish the nature of marriage between Enoch Ogunsola and Nasiratu Ogunsola.
- Whether the learned trial judge was correct in expunging from the record evidence of Dw1 and Dw2
- Whether Exhibit A can convey a legal title on the Respondent under the Land Use Act No. 6 of 1978.
The relief sought by the Appellant is an order allowing this appeal and setting aside the judgment of trial court complained of.
The learned counsel for the Respondent did not formulate any issue and although he did not say so, it is presumed that he has accepted the issues as formulated by the Appellants’ counsel subject of course to the Notice of Preliminary Objection given by the Respondent.
The Respondent, on page 3 of his brief of argument gave notice of Preliminary Objection and as it is the practice in this court, I intend to clear the air on the objection so raised.
It was the contention of the learned counsel for the Respondent that Ground 2 of the Appellants’ grounds of appeal should be struck out based on the reasons that the particulars do not reliable to the ground of appeal and that Sections 21 and 22 of the Land Use Act as contained In Ground 6 of the Grounds of Appeal is a new issue. And since no leave to raise the issue has been first obtained, Ground 6 should also be held incompetent.
On Ground two, learned counsel submitted that particulars as it relates to the agreement evidence the sale of the property in dispute to the Respondent i.e. Exhibit A, whereas the ground of appeal is complaining about the inter vivos gift of Enoch Ogunsola to Nasiratu his wife. Also that particulars “b” and “c” of ground two are not related at all because the learned trial judge neither referred to nor relied on the rejected document in any of the judgment and that the part of the judgment relating to this ground of appeal at page 79 lines 1-7 of the record of appeal shows that the learned trial judge did not refer to the document at all but to the testimonies of Pw1 Pw3 and Exhibit A. learned counsel cited and relied on the cases of Kano iles Plc v. G&H (Nig) Ltd. (2002) 2 NWLR (Pt 751)p. 420, Udoette v. Heil (2002) 13 NWLR (Pt. 783 p.64)
As regard Ground 6, he urged the court to strike it out being a new issue and no leave was contained to raise it.
In the Appellants reply brief, the learned counsel for the Appellants, in response to the Preliminary Objection submitted that the particulars (a) (b) & (e) in support of ground two relates.That Exhibit A contains a clause that Nasiratu’s title depends on a gift of inter-vivos and so particular(a)relates and connects to the title of Nasiratu and then relevant. Also that particulars “b” & “c” relates to Ground 2 in that the Pw1 gave evidence that Enoch Ogunsola willed the property to his wife Nasiratu.
As regards Ground 6, he submitted that the ground of appeal is that of Law and as such can be raised even at the Supreme Court without leave of court. He urged the court to dismiss the objection.
Before setting out to resolve this matter, it is expedient to state the two grounds of appeal sought to be struck out.
GROUND TWO
“The learned trial judge erred in law when he held trial Enoch Ogunsola in his life time gave landed property subject of suit No. 1/615/97 to Nasiratu inter vivos”.
.
PARTICULARS OF THE ERROR
“(a) Exhibit A is not an instrument of title being a registrable document and not registered.
(b) The learned trial judge relied on a document titled “will” which was rejected by the court.
(c) Where a document is rejected by the court, all facts relating to it also (sic) rejected.”
GROUND SIX
“The trial judge erred in law when he agree with the plaintiff counsel submission that Exhibit A sold a six bedroom bungalow and not land when under section 21 and 22 of the Land Use Decree No.6 of 1979 that there can be no lawful transfer or alienation of the right of Occupancy without the counsel of the Governor had and obtained and the Latin principle of Quick Plantator Solo Solo Cedit”
NB: Ground 6 has no particulars.
I now consider the first objection which relates to ground 2. Exhibit A mentioned in particular (a) is not the document which shows the inter vivos gift of the house of Nasiratu by Enoch Ogunsola. Rather it is a sales agreement made between Nasiratu and the Respondent evidencing the transaction between them. Exhibit A was tendered in court through Pw1 on page 28 of the transcript record of appeal. Thus Exhibit A has no correlation with Grounds 2 of the ground of appeal. On particulars “b” and “c” there is nowhere in the judgment of the learned trial judge wherein he said he relied on the rejected exhibit.
It is now well settled that a ground of appeal and its particulars must be related and where one or more of the particulars are not related to the ground of appeal, the consequence is that the ground of appeal must be held to be incompetent which leads to its being struck out the court will not carry out the duty of separating the bad particulars from the good ones. See Kano iles Plc v. G & H (Nig) Ltd. (2002) 2 NWLR (pt. 751) 420, Udoette v. Heil (2002) 13 NWLR (pt. 783) 64.
It follows therefore that since the particulars and ground two are not related, both the ground and particulars are hereby struck out. See Houika Sawmills Ltd. v. Holt (1994) 2 NWLR (pt. 326) 252, Bereyin v. Gbogbo (1989) 1 NWLR (pt. 97) 372. And, as a necessary consequence, issue No. 2 distilled from the said ground of appeal cannot stand and is accordingly struck out.
With regard to ground 6, it deems that the Appellant counsel has tacitly admitted that it is a new point but that since it is a point of law, it can be raised for the first time on appeal without seeking and obtaining leave. This is completely an erroneous argument. Let me restate the well settled principle of law that an appeal is a challenge against the decision of a trial court and it is not predicated on what the court has not decided in its judgment. The grounds of appeal must therefore attack the decision of the lower court.A ground of appeal which does not attack the decision would therefore be struck out. See Metal Construction (WA) Ltd. v. Milgliore. In Re Ogundare (1990) 1 NWLR (pt.126) 299, CCB Ltd. v. Nwokocha (1998) 9 NWLR (pt.564) 98.
Issues relating to Sections 21 and 22 of the Land Use Act were never canvassed at the lower court. The parties did not join issues and the lower court never pronounced on it. Therefore, it is a new point or law in this court.
In Prince Adewole v. Adesanoye (1998) 3 NWLK (pt 541) 175, this court staled that the rule governing the raising of fresh point on appeal is that leave must be sought and obtained before it is raised. Where the issue to be raised amounts to a substantial point of law, the court is always ready to grant such an application. It is wrong to say that such new or fresh point can be raised without leave. See Kano ile Plc v. G & H (Nig) Ltd, (supra), Afribank Nig Plc. V. Shuka & Anor (1996) 6 NWLR (PT456) 570, Chief Okenwa v. Military Governor, Imo State & ors (1996) 6 NWLR (pt.455) 394.
I have no hesitation therefore in striking out ground 6 of the grounds of appeal, being a new point or issue raised without first seeking for and obtaining the leave of this court. It also follows that issues No 6 formulated from Ground 6 is also struck out.
The end result is that the preliminary Objection is hereby sustained. As it stands, I would have been left with four issues for the determination of this appeal. But issue No.2 just struck out was argued together with issue No.3. I need to state here that when an incompetent ground of appeal is related to an issue along with a competent ground and both are argued together as in this case, the entire argument on the issue is incompetent because it is not the business of the court to sieve arguments arising from the competent ground related to the issue from the arguments emanating from the incompetent ground. Sec Kano ile Plc. v. G & H (Nig). Ltd. (Supra), Benevin v. Gbogbo (supra), Geosource Nig. Ltd. v Biragbora (1997) S NWLR (PT. 258) 214.
In the circumstance, ISSUE No. 3 argued together with issue No. 2 already held incompetent is accordingly struck out.
I am now left with issues 1, 4 and 5 and I intend to determine this appeal on these three issues.
It is the contention of the learned counsel for the Appellants on the 1st issue that when the evidence adduced by the Appellants is balanced against that adduced by the Respondent, the judgment is against the weight of evidence. That since the document showing that Enoch Ogunsola gave the property to his wife Nasiratu Ogunsola has been rejected by the court, it was wrong for the learned trial judge to rely on the said document. Also that since the building given to Nasiratu situates on land, the principle quiquid plantator Solo Solo cedit must apply and the Respondent should have proved his case on the standard laid down in Mogaji v. Odofin (1978) 3-4 Sc 91. Finally that it was the duty of the Respondent to have satisfied the court that he is entitled to the claim he put before the court. He cited and relied on the following cases.
- Itaunta v. Akpe-Ima (2002) FWLR (Pt.16) 2809
- Kodilinye v. Odu (1936) 2WACA 36
- That no member of Enoch Ogunsola family said to be alive was called as a witness.
- That Dw2 who said he bought the house from Sunday Ogunsola did not state the year he bought the house or the price he paid for the house.
Learned counsel referred to Section 149 (d) of the Evidence Act to say that to that if the Appellants had tendered their allege documents of title, it could have been unfavourable to them. He also cited the case of Abba v. Jumare (1999) 5 NWLR (pt. 602) p. 270.
The main grouse of the Appellant on this issue is that the learned trial judge failed to evaluate the evidence adduced in court before arriving at this decision. It is the primary function of the trial court to evaluate and attach probative value to evidence adduce before it since it had the opportunity of seeing, hearing and assessing the witnesses first hand. A court of appeal seldom interferes with the evaluation of evidence done by the trial court. See Abba v. Jumare (supra), Retduwes v. Jwan (1992) 8 NWLR (pt.355), Kwasalba Nig. Ltd v. Okonkwo (1992) 1 NWLR (pt 218) 407.
What was the evidence of the parties which the court below is alleged to have failed to evaluate? The Respondent who was Plaintiff clearly stated that he bought this house in 1992 from Nasiratu Ogunsola who was given the property by her husband before he died. Pw1, Pw2 and Pw3 gave evidence to substantiate this claim. He even tendered documents to buttress his claim although one was rejected. He stated the price he paid for the property to be N140,000,00. the Appellants on the other hand pleaded certain facts but failed to leave evidence to prove them. As was clearly pointed out by the Respondent’s counsel, Sunday Ogunsola, the alleged Vendor of the Dw2 is said to be alive. The father of Sunday, a blood relation of Enoch Ogunsola is also said to be alive, but none was called to testify. The Appellants had pleaded in paragraph three of their statement of defence that Nasiratu was a “commodity” and had no right to give property by her husband but failed to lead evidence to prove how a human being could be a commodity. In paragraph 6 of their statement of defence, the Appellants said they would rely on rent receipt and judgment of a customary court but they failed to refer to or tender these documents. They also repeated this in paragraph 14. Quite apart from the not calling any member of Sunday Ogunsola’s family to testify, the Dw2 did not produce any document of title nor did he state the year he bought the house and the amount he paid for it. What exactly did the Appellants expect the learned trial judge to evaluate?
By Section 149(d) of the Evidence Act, where a party refuses to produce evidence that is material which is required to prove certain facts which are within the knowledge or a witness as has been done by the Appellants in this case, it is presumed that evidence if adduced would be unfavourable to the person withholding it. See. Habib Bank Nig.Ltd v. Koya (1992) 7 NWLR (pt. 251) 43, Awoside v. Satumbo (1986) 3 NWLR (pt. 29)471
The Respondent through his witnesses had emphatically stated that the late Enoch Ogunsola had only one sister who had since died. There is nothing to challenge this evidence. I think the Appellants know why they refused to call the vendors to testify for them since they are said to be alive.
It is my well considered view that the Appellants did not lead evidence to challenge the evidence of the Respondent. The learned trial judge was therefore right in relying and applying the evidence of the Respondent to enter judgment for the Respondent. In the circumstance, I resolve this issue against the Appellants.
The next issue for consideration is the 4th issue in the Appellants’ brief of argument. On page 78 of the record of appeal, the learned trial judge said concerning the pleading by the Appellants in paragraph 4c of their statement of defence as follows:-
“It is the respective view of this court that the learned counsel for the Defendants presumed in the absence of a certificate of marriage, that the marriage between Nasiratu Ogunsola and Enoch Ogunsola was contracted under customary law Marriage, as constituting status, must be strictly proved. See the case of Adeyemi v. Bamidele &. Alaka (1968) I All NLR p. 32 at p.35. Also, customary law except where it has assumed the character of judicial notice must be proved as a matter of fact and evidence. It stands to reason that the Defendants called no evidence to establish the nature of marriage between Nasiratu Ogunsola and Enoch Ogunsola”
The main and only grouse of the Appellants in this issue is that it was the Respondent who should have led evidence to prove the type of marriage between Nasiratu and Enoch Ogunsola. That the learned trial judge was wrong to have held that it as the Appellants who should have done so. It was however the contention of the learned counsel for the Respondent that since the Respondent never pleaded the type of marriage between Nasiratu and Enoch and that since it was the Appellants who pleaded it, the onus was on them to lead evidence to prove same. The learned Respondent’s counsel is right here. By section 135(1) of the Evidence Act, where there is an allegation of the existence of a particular fact, it is the duty of the person who alleges to prove his allegation. Thus since it was the Appellants in the instant case who asserted that Nasiratu and Enoch married under native law and custom, it was not the duty of the Respondent at all in the circumstance. See Abba v. Jumare (supra). There is nothing to fault the finding and conclusion of the learned trial judge on this issue. Accordingly, this issue does not avail the Appellants.
The last issue for consideration in this appeal is issued No. 5. the issue queries the appropriateness of the learned trial judge in expunging the evidence of Dw1 & Dw2 from the record. It seems to me that the Appellants in this appeal were just shopping for issues to sustain this appeal. I have gone through the whole gamol of the record there is nowhere recorded or suggested that the evidence of Dw1 & Dw2 were expunged from the record.
The learned counsel for the Appellants, through his repetitions in the argument of this issue that the evidence of Dw1 & Dw2 were expunged, did not refer to the record. There is no such thing.
Now, since the Appellants did not refer to the record as to where the said evidence was expunged, I would have stopped here. But let me take it further. On page 82, lines 11-19 of the record of appeal, the learned trial judge has this to say in relation to the evidence of Dw1 & Dw2.
“This court is in agreement with the learned counsel for the Plaintiff that the evidence of Dw1 and Dw2 that it was the 1st Defendant that bought the house in issue from the Dw2 was not in line with paragraphs 6,7,8.9, and 10 of their statement of defence where they claim that it was the 6th Defendant who bought the house from the Dw2. It is true law that parties are bound by their pleadings and any evidence which is at variance with averment in the pleadings goes to no issue…”The above is the closest the learned trial judge said about the evidence of Dw1 & Dw2. He did not order that it be expunged. What the learned trial judge did was evaluation of that evidence and attaching probative value to it.
Where the trial judge does not attach much weight or at all to a piece of evidence, that does not mean that it has been expunged from the record. To expunge means to remove a name or piece of information from a list or book.
See Longman Dictionary of Contemporary English p. 479.
As it stands, the learned counsel for the Appellants completely missed the point. This issue is accordingly resolved in favour of the Respondent…
In consequence therefore, this appeal lacks merit and is hereby dismissed. I affirm the decision or the learned trial judge. I award cost of N5,000.00 in favour of the Respondent.
Other Citations: (2007)LCN/2469(CA)
