Vincent U. Egharevba V. Dr Orobor Osagie (2009)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C

The deceased John A Osagie who has been replaced by his son Dr Orobor Osagie sued the appellant in Benin High Court over a piece of land which he had sold to him. His case was that he was allocated piece of land measuring one hundred feet by two hundred feet by the Oba of Benin in 1963.

In 1976 the appellant him for a transfer of a portion of the land measuring fifty by hundred feet. The appellant prepared a Deed of Conveyance for a portion of the land measuring a hundred by hundred feet which he mistakenly signed before noticing the discrepancy. He signed only a copy which he kept to himself and asked the appellant to go and correct the paper.

He claimed that the appellant never paid any money for the land. The appellant fraudulently prepared an agreement for the sale of the land exhibit ‘F’ and registered it.

The appellant’s case was that on the 24th of February 1976 the respondent transferred part of his land measuring a hundred fed by hundred feet to him. He negotiated the price and he was put in possession. They subsequently went to a lawyer’s office and an paid consideration for the land. The Court of Appeal dismissed the appellant’s cross-appeal without considering the issues raised therein.

The appellant was aggrieved by the decision of the Court of Appeal and appealed to this Court. The respondent was also aggrieved and cross-appealed to this Court.

Both sides exchanged briefs; The learned counsel for the appellant formulated 2 issues for determination as follows:

“(a) Whether the Court of Appeal was right when it held that there is no oral or documentary evidence from the Appellant to show that he offered a clear and conclusive consideration for the purported land he said he purchased from the Respondent

(b) Whether the Court of Appeal was right in not considering the substance of the Cross-Appeal

of the Appellant before dismissing same”

The learned counsel for the respondent formulated 2 issues for determination in the main appeal as follows:

“1. Whether the learned Justices of the Court of Appeal were right when they held that the Appellant failed to discharge the burden of proof placed on him to show that he paid consideration for the land he purportedly purchased from the Respondent

2. whether the non-consideration of the issues raised in the cross-appeal of the Appellant by the learned Justices of the Court of Appeal occasioned any miscarriage of Justice

For the Cross-Appeal he formulated one issue which reads as follows:

“Whether having allowed the Respondent’s appeal, the learned Justice of the Court of Appeal ought to have granted the relief sought by the Respondent/Cross-Appellant in paragraph 53 of the further amended statement of claim No.3 in exercise of their powers contained in Order 1 rule 19(3) and Order 3 Rule 23 of the Court of Appeal Rules, 2007

The learned counsel for the appellant filed what he called appellant’s reply brief to the respondent’s cross-appeal in which he adopted the issue raised in the cross-appellant’s brief. The correct appellation should have been appellant/Cross-Respondent’s brief.

The learned counsel for the appellant submitted that the Court of Appeal was wrong when it took the position that there was no oral or documentary evidence that the appellant offered consideration for the land he purchased from the respondent. He said that exhibit F. the registered conveyance between the parties contained the consideration which the appellant paid for the land.

The learned counsel pointed out that the issue before the Court of Appeal was whether or not the appellant as respondent before that Court proved due execution and validity of the Deed of Transfer he relied upon and not whether or not there was consideration for the sale (“If the land which was erroneously considered by the Court of Appeal.

He relied on the cases of Bamgboye v. Olarenwaju (1991) 4 NWLR (pt.184) 132 & Akanni v. Ajuwon (1993) 9 NWLR (pt.316) 182,

In reply to this the learned counsel for the respondent’s appellant submitted that the pivot of appellant’s defence was the purchase and payment for a part of respondent’s land but the appellant failed completely to lead any evidence in support of his averment relating to payment of consideration, He said that it is settle: law that’ mere averment without evidence in proof of the facts is no proof of the facts unless they are admitted. He referred to the case of Adegbiie v. Ogufeolu (1990) 4 NWLR (pt.146) 578. The learned counsel submitted that the Court of Appeal was right in holdina that consideration was not proved.

The issues canvassed before the Court of Appeal by the respondent who was the appellant in that court are contained at page 219 of the record and are reproduced here-under.

“1. Whether Plaintiff successfully proved his title to the entire piece of land measuring about 100 feet by 200 feet referred to in Exhibit ‘C’ and therefore entitled to the declaration sought

2. Whether Exhibit ‘G’ and ‘F’ were caught by the plea or doctrine NON-EST-FACTUM and what is the effect of the plea or doctrine on the entire transaction
3. Whether the Defendant/Respondent proved due execution and validity of the Deed of Transfer he relied upon to claim title to part of plaintiff/Appellant’s large parcel of land
4. Whether the learned trial Judge was right in holding that the cause of action arose in 1980 instead of 1988
5. Whether the defence of estoppel due to customary arbitration, standing by, laches and acquiescence avail the Defendant/Respondent/Cross-Appellant in the circumstance of this case

It can be seen from the issues above that none of them raised any question of non-payment of consideration for the purchased land.

Issue 3 before the Court of Appeal was on the validity of the deed of transfer which the appellant relied upon to claim part of the land. It follows therefore that the Court of Appeal was in gross error in raising the issue of non-payment of consideration for the purchased land which was not an issue before it as a basis for allowing the appeal. Moreover, in the face of exhibit “F” the Deed of Transfer which had a clause acknowledging receipt of consideration for the purchased land which was signed by all the parties including the respondent/cross-appellant, the Court of Appeal was wrong to say that there was no documentary evidence to prove payment of consideration for the purchased land. It is the law that once an agreement has been committed into writing and executed by the parties it is binding on them and you cannot use parole evidence to alter its terms. Vide EZEMBA V. IBENEME (2004) 14 NWLR (Pt.894) 617

The trial Court meticulously examined exhibit- “F” and the respondent’s signature therein with his admitted signature in other documents before the court and came to the conclusion that there was no difference.

A pertinent question to ask is why the respondent would allow the appellant to build a house on his land in 1980 without paying anything for it and live there until 1988 before he woke up to his rights. The answer is obvious that no reasonable person in his normal faculties would allow that to happen. It is therefore my view that first issue succeeds.

On the second issue of the main appeal the learned counsel for the appellant submitted that the Court of Appeal was wrong in not considering the substance of the issues raised in the cross-appeal before dismissing the cross-appeal.

In reply the learned counsel for the respondent submitted that there was no substance in the cross-appeal and there was therefore no miscarriage of justice in the failure to consider it.

This Court has said it over and over again that any issue properly raised and canvassed before a trial court or an’ appellate court must be given a fear-hearing and considered, This is so in order to avoid a miscarriage of justice, See Ugbodume v. Adiegbe (1991) 8 NWLR (pt.209) 274.

The Court of Appeal ought to have considered the cross-appeal ad given reasons for dismissing it However, since the first issue has been resolved in favour of the appellant this second issue is merely an academic exercise.

On the cross-appeal it is the contention of the learned counsel for the respondent/cross-appellant that the Court of Appeal erred in law when it failed to grant the reliefs sought by him in paragraph 53 of the further, amended statement of claim.

I agree with their submission, The respondent sought some reliefs from the High Court which were denied by the trial court, He went on appeal to the Court of Appeal which reversed that judgment. The respondent’s claim could not be left hanging in the air. The Court of Appeal ought to have made consequential orders granting him any reliefs which it considered were supported by the evidence before the trial court.

It would appear that the Court of Appeal’ did not give enough consideration to the issues before it in its rather hasty and sketchy judgment. However, in view of the fact that I have in this judgment decided that the Court of Appeal was wrong in reversing the judgment of the trial court the cross-appeal before this court is now of no relevance. In other words, it does not serve any useful purpose.

Accordingly the appeal is allowed and the judgment of the Court of Appeal is hereby set aside while the judgment of the trial court is restored. The cross-appeal having lost its significance is hereby dismissed. The respondent/cross-appellant shall pay costs of N50,000.00 to the appellant\cross-respondent.

SC.266/2003