Olukotun Jean V. Basiratu Hassan & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A., OFR
This is an appeal brought against the decision of Lagos High Court delivered on 3rd. February, 1994, In the judgment, the learned trial judge ordered the defendant to give up possession of a parcel of farmland measuring 60′ x 120′ at Iyana Ishashi, Ishashi Village Road, Okokomaiko as well as payment of general damages of N1 0,000.00 to the plaintiff. The counter-claim of the defendant was dismissed. The defendant being dissatisfied appealed to this court on two grounds of appeal. In accordance with the practice of this court briefs of argument were settled at the Appellant’s and Respondent’s briefs of argument. In the appellant’s brief the following issues were framed:
“1. Whether having regards to the state of the pleadings and the issue joined between the parties as well as
evidence led, the court below was right to have given judgment in favour of the plaintiff in the light of the failure to issue valid statutory notices to recover premises.
- Whether the court below was right in the evaluation of the evidence of the plaintiff taking into consideration unpleaded facts and issue raised suo motu by the court which was not pleaded and the obvious inconsistencies in the evidence of the plaintiff and the plaintiff’s witness.”
The respondent identified and formulated the following issues for determination.
“1. Whether or not considering the pleadings filed by the parties in this suit and evidence adduced at the hearing, the judgment delivered by the learned trial judge on 3rd February 1994 should not be upheld.
- Whether or not the learned trial judge’s evaluation of evidence adduced by the plaintiff now Respondent and the defendant now Appellant at the hearing of this suit is not proper consequent upon which judgment was delivered in this suit.”
I have carefully considered the formulations of both the appellant and the respondent and am firmly of the view that respondent’s issue 1 does not now flow from any of the grounds of appeal adumbrated in the appellant’s notice of appeal. Since the respondent had not cross-appealed he cannot identify an issue outside or independent of the appellant’s grounds of appeal. On appellants issue 1, I am respectfully of the view that there was no issue joined on the competence of the notice to quit allegedly served on the appellant. In this connection, the respondent pleaded as follows in paragraphs 15 and 16 of his statement of claim.
“15. By a Quit notice dated 30th July, 1988 served on the Defendant on the same day by the plaintiff the
defendant was asked to quit the said land under his forceful occupation.
- By another notice dated 31st August 1988 served on the Defendant the same day by the plaintiff the
defendant was asked to Quit the said land under his forceful occupation.”
The defendant, incidentally the appellant herein, averred in paragraphs 9 and 10 as follows –
“9. In answer to paragraph 15 of the statement of claim the Defendant denies receiving the said quit notice
from the plaintiff.
- The Defendant is not in a position to admit or deny paragraph 16 of the statement of claim but would
require the strictest proof.
Firstly the averment in paragraph 9 of the statement of defence is not a challenge to the competence of the notice to quit purportedly served on the appellant. Neither does it constitute notice to the respondent that the notice to quit was not in compliance with the relevant law. If truly the defendant did not receive the notice to Quit how did he know that it was signed by the plaintiff’s solicitor and not the plaintiff. Secondly paragraph 10 contains averment characterized as an admission. An averment such as pleaded in paragraph 10 of “the statement of defence to the effect that “the defendant is not in a position to admit or deny a paragraph of the statement of claim” has been construed as admission. See Lewis and Peat (N.R.I) Limited vs Akhimien (1976) 10 NSC.C.330; (1976) 7 SC 157. So that if a party refuses to admit a particular point in a statement. he must say so specifically; and he does not achieve this satisfactorily by pleading thus – “defendant is not in a position to admit or deny the particular allegation and will at trial put the plaintiff to proof.” It seems the Supreme Court by this decision resiled from the case M.K.Ltd vs Apena 1969 NMLR 199 where it held that a general traverse in a statement of defence sufficiently denied an allegation of false imprisonment. In Apena case Supreme Court adopted the observation of Lord Denning in the case Warner vs Sampson (1959) 1 QB. 297, 310. But in Messers Lewis & Peat N.R.l Limited vs Akhimien at 163 and 164 Idigbe, JSC, of blessed memory, observed as follows –
“We are of course not unmindful of the first paragraph of the statement of defence. Nowadays almost every statement of defence contains such a general denial. See Warner vs Sampson (1959) 1 QB 297, 310-311. However in respect of essential and material allegation such a general denial ought not be adopted; essential allegation should be specifically traversed. See Wallerstern vs Moir (1974) 1 WL.R 991,1002 per Lord Denning M.R.; also Bullen, Leake & Jacobs on Precedent of Pleadings 12th Edition p83.” See also Owosho vs Dada (1984) 7SC 149, 164.
On the authority, issue was neither joined on the competence of the notice to quit nor otherwise. The same was not contested in the court below. A point that was not raised and canvassed in the court below cannot be raised here as of right. Leave of this court would be required to raise fresh issue granting of which is subject, of course, to the relevant evidence being on record.
In the circumstance of the instant appeal, there is no jurisdiction on the part of this court to entertain the issue of validity or otherwise of the quit notice issued to the appellant. It should be noted that on the pleadings appellant admitted the plea of the respondent impliedly and what is admitted need no further evidential proof. See Obimiami Brick & Stone (Nig) Ltd vs ACB (1992) 3 NWLR (Pt229) 260, 301. The appellant having failed to join issue with the respondent on the notices to quit, either as to its competence or existence cannot come, at this stages, to contest the said documents. His pleading may at best be rated as evasive.
This issue will have to be resolved against the appellant. The appellant’s ground (ii) fails and it is dismissed.
On appellant’s second issue, learned trial judge in her judgment observed as follows –
“However, I have carefully gone through the evidence and I hold that the following fact are not in dispute between the parties –
(a) That the piece or parcel of land in dispute originally belonged to the plaintiff.
(b) That the Defendant needed accommodation and was let into the said piece of land by the plaintiff.
What in my findings to be in dispute is whether the Defendant is a tenant or that he had purchased the said piece of land from the plaintiff. The law is that where an owner of land brings an action to recover possession thereof the defendants being in possession the burden of proof of their right to possession lies on the defendants. See Fagbavi vs Administrator General (1946) 12 WACA 76.”
In other words, the burden of proof, on the authority cited by the learned trial judge, shifted on the appellant. The onus of proof having been thrown on the appellant, the defendant in the court below, he has a duty to establish on balance of probability his right to possession. In other words the defendant is to go into the witness box first to show how he acquired possession of the property. At page 76 of the report the erstwhile West Africa Court of Appeal observed as follows-
“It has been alleged on behalf of the respondents that, according to native customary law, proof of possession casts upon the owner not in possession the onus of proving that he is entitled to possession. No authority had been adduced to support this surprising proposition, and our impression is that the authorities point the other way. Only clear authority would dispose this court to believe that native customary law is so unreasonable to require the owner to disprove the case for the person who is in possession without first having notice of what that case consists. We have no doubt that in this case the the onus of proving the right to possession was on the defendants.” Learned trial judge having accepted this authority applied it to the defendants’ case and found that it was riddled with contradictions. Appellant testified on behalf of himself and called two other witnesses to support his case to the effect that he purchased the land from the respondent. On the crucial, essential and material evidence as to passing of the consideration, the appellant and his witnesses seriously faltered and quibbled. It will not only be pertinent but also interesting to read the relevant portion of the judgment where learned trial judge reviewed and evaluated their evidence. It reads as follows-
The evidence of the Defendant in this aspect of proof is that he bought the land from the plaintiff for N3,000.00.That he borrowed the said sum of N3,000.00 from one Jaiyeola who handed the money to the plaintiff’s 1st witness in the presence of one Captain Gaji but the evidence of the said Mr Jaiyeola was that he got the N3,000.00 from his wife and gave it to the Defendant and that later, the Defendant came to show him a receipt. If this piece of evidence is accepted it shows that the evidence of the Defendant that the money was given to the 1st plaintiff’s witness cannot be true. Again the evidence of Captain Gaji the 2nd Defendant’s witness is that the N3,000.00 was given to the plaintiff not to the defendant and not to the plaintiff’s 1st witness. Learned trial judge unassailably concluded as follows-
“I therefore hold that after a careful consideration of the whole facts before me the evidence of the Defendant and his witnesses are not satisfactory and are full of material contradictions. I therefore hold that the Defendant had not satisfied me by evidence that he purchased the piece of land from the plaintiff.”
According to the appellant the purchase receipt was lost. But was there a purchase receipt? If so to whom was it issued? Mr Jaiyeola, the lender of the money, claimed to have given the purchase price directly to appellant who subsequently returned to show him the receipt. Appellant’s version was that the money was handed over to the respondent’s ‘only witness but he was silent over issuance of receipt. The second defendant’s witness, Captain Gaji, claimed that the money was paid to the plaintiff and not to his agent nor to the appellant. It is difficult, in this confusion, to unravel whether or not a receipt was ever issued or actually existed not to talk of its getting lost.
It is crystal clear form the authority cited that learned trial judge unmistakably identified where the onus of proof laid. She correctly evaluated the pieces of evidence placed before her before acceding to respondent’s prayer. The discrepancy which learned counsel for appellant sought to identify in the respondent’s case are nothing more than making a mountain out of a mole hill. They are neither essential nor material.
Appellants issue 2 also fails and dismissed. Ground I of the grounds of appeal from which it was formulated equally fails and is dismissed.
Finally, it is proposed to observe that the appellants issue 2 as well as the ground of appeal from where it was framed are not ad idem. While the ground complained of that the learned trial judge wrongly placed the burden of proof on the appellant, the issue raised talks about evaluation or admissibility of evidence. The issue and the ground of appeal are at variance.
Be that as it may, the appeal fails and is dismissed. I affirmed the decision of the learned trial judge, Sotuminu, J., as she then was with order as to costs assessed at N30,000.00 in favour of the respondent.
Other Citations: (2007)LCN/2525(CA)
