AMADI v. ORUWARI (2022)

AMADI v. ORUWARI

(2022)LCN/16204(CA)

In the Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, March 16, 2022

CA/PH/460/2018

Before Our Lordships

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

VICTOR AMADI (Appealing As Next Of Kin Of Late Chief Chima Amadi) APPELANT(S)

And

DORA INEBA ORUWARI RESPONDENT(S)

RATIO

THE POSITION OF LAW ON A “GOOD BRIEF”

A good brief aids speedy administration of justice in that it assists the Court to readily grasp the issue(s) involved in the appeal for quick and time saving dispensation of justice. A good brief is also refreshing to read. It enhances the professional skill of counsel that prepared it. So much has to be said for a good or well prepared brief. But in the interest of substantial justice a bad or unhappily worded brief may be tolerated. Substance not form will then be the raison d’etre’ of accepting an ill-prepared brief Akpan V Bob (2010) 17 NWLR (Pt.1223) 421, the rational being that justice must not be sacrificed on the altar of form or technicality. In other words, it is to avoid throwing the baby (justice) away with the bath water (brief), so to speak.
In as much as it is inappropriate to have more than one issue joined together in a brief, if it appears, as in this case, that the respondent understood and appreciated the substance of the arguments contained in the appellant’s brief and was on that account not prejudiced nor embarrassed nor misled and thereby addressed the arguments in his brief, as in this case, the bad brief will still be used and corporate sense of what it conveys will be the determining factor at the end of the day vide the cases of Obim v Achuk (2005) 6 NWLR (Pt.922) 594, Obiora V Osele (1989) 1 NWLR (Pt.97) 279, National Waterways Authority V The Shell Petroleum Development Company of Nigeria (S.P.D.C.N) (2008) 13 NWLR (Pt.1103) 48 at 64, KLM Royal Dutch Airlines V Jamilat Aloma (2018) 1 NWLR (Pt.1601) 473. PER IKYEGH, J.C.A.

THE POSITION OF LAW ON A SUBPOENA OR A NOTICE TO PRODUCE

It is therefore settled that subpoena or notice to produce or an oral or written application should be the form of demand to be made for the production of a document before the person or party upon whom the demand is made without compliance with the demand would come within the dragnet of Section 167(d) of the Evidence Act on the withholding of evidence in his possession vide the cases of Ewuaga V State (2018) 7 NWLR (Pt.618) 262 at 282, Madukaegbu v State (2018) 10 NWLR (Pt.1626) 26, Nweke v State (2017) 15 NWLR (Pt.1587) 120, Mohammed V State (2018) 13 NWLR (Pt. 1635) 85 at 105. PER IKYEGH, J.C.A.

WHETHER OR NOT PARTIES CAN STRAY OUTSIDE OF THEIR PLEADINGS

It is trite that parties are bound by their pleadings and would not, to protect and safeguard the right to fair hearing and eliminate surprise or trial by ambush, be allowed to stray outside the pleadings vide Emegokue V Okadigbo (1973) NSCC 220. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal challenged the judgment of the High Court of Justice of Rivers State (the lower Court) whereby it awarded N10,000.00 (Ten Thousand Naira) general damages for trespass in favour of the respondent against the appellant and, also, granted an order of perpetual injunction restraining the appellant, his servants, agents and all those claiming through the appellant from continuing acts of trespass with respect to the plot of land located at Oromineke layout, Olu Obasanjo Road, Port Harcourt (or Link Road Oromenike Diobu, Port Harcourt) and the award of N3,000.00 (Three Thousand Naira) costs for the respondent against the appellant.

In brief, the respondent’s case as the claimant at the lower Court was that her title to the disputed plot of land was by conveyance and subsequent conversion of it to a statutory right of occupancy granted by the Governor of Rivers State, that the appellant’s late father entered the plot of land in 1982, that there were pillars planted in the land confirmed by the appellant and that the appellant trespassed in the land in 1982.

On the other hand, the appellant’s case was that he inherited the disputed land from his forebears and that he had refunded a Mr. Sampson Chukwuami Obienu, the money he had paid for the land to recover it back from him; so, he was not in trespass of the land.

The lower Court held that the respondent established a better title to the land in dispute by the conveyance and the certificate of occupancy, as the appellant failed to prove by traditional evidence how he inherited the land as patrimony and that the appellant did not prove refund of the purchase price to recover the land from the purchaser as he failed to call the purchaser as a witness.

It was based on the above state of evidence, that the lower Court entered judgment for the respondent in favour of the appellant as indicated (supra) in the opening part of the discussion.

Not unnaturally, the appellant was not satisfied with the judgment of the lower Court and appealed against it in a notice of appeal with fourteen (14) grounds contained in pages 75-81 of the record of appeal (the record).

The appellant filed a brief of argument on 21/12.2020, in which it was submitted that having put title in issue, the respondent was obliged to prove that the vendor had title to pass to her by the conveyance in Exhibit B and that the certificate of occupancy, Exhibit C, had been based on valid title which had placed a heavier onus on the respondent as the appellant did not counter-claim to displace the appellant’s case of title to land by inheritance and that having not established a better title on the strength of his own case of exclusive possession of the land in dispute, the lower Court was wrong to enter judgment in favour of the respondent placing reliance on the case of Omotayo V Co-Op. Supply Ass. (2010) 52 WRN 1 at 22, Woluchem V Gudi (2004) 3 WRN page 20 at 40, Adeleke V Iyanda (20010 28 WRN page 1 at 17, Onovo V Mba (2015) All FWLR (Pt. 765) 298 at 338, Oyewusi & Ors. V Olagbami & Ors (2018) Vol. 284 LRCN 65 at 93, Onovo V Mba (2014) 14 NWLR (P.1427) 391; (2014) LPELR-23035 (SC) – 73, Elias V Disu (1962) ALL NLR (Pt.1) 214 at 220, Kodilinye V Odu 2 WACA 336 at 337-338, Idundun V Okumagba (1976) 9-10 SC 227 at 93, Anyafulu V Meka (2014) 16 WRN page 53 at pages 76, Anukam V Anukam (2008) 5 NWLR (Pt.1081) page 455, Kukoyi V Adeuja (2020) 14 WRN page 120 at 150-151.

The appellant submitted that once an adversary admits original ownership of the land, the claimant or person relying on it is relieved of the burden to prove the genealogy of the land; that the deed of conveyance of 1965 was pleaded vide page 3 of the record but was not tendered in evidence and since it was not abandoned as the parties had joined issues on its failure to produce or tender the deed of conveyance of 1965 in evidence tantamount to withholding of evidence under Section 167 (d) of the Evidence Act 2011 and thus indication of admission of the case by the party withholding the evidence placing reliance on the cases of Sifax Nig. V Migfo Nig. Ltd & Anor (2019) Vol. 288 LRCN page 163 at 213Z, Sale V State (2016) 3 NWLR (Pt. 1499) page 392 at 415 paras E-G, Imana V Robinson (1979) 12 N.S.C.C. 1 page 5 line 50, Adesola V Azeez (2013) 1 W.R.N page 46 at 71-72, Soronnadi & Anor V Durugo & Anor (2019) Vol. 294 LRCN page 242 & 243 for the submission (supra).

The appellant submitted that on the evidence of his late father that their family never sold the land in the alleged conveyance of 1965, the subsequent alleged conveyance in Exhibit B was based on nothing and should have been disregarded by the lower Court under the latin maxim nemo dat quod non habet (one cannot give what one does not have) read with the cases Elewa V Guffanti (Nig.) PLC (2017) 2 NWLR (Pt. 233) page 251, Olora V Adegbite (2013) 1 NWLR (Pt. 1334) page 40 at 52-53 paras. H-B, Mohammed V Mohammed (2012) 18 WRN page 64 at 101 lines 25-35.

The appellant also submitted that since Exhibit C emerged from a pleaded deed of conveyance of 1965 that was not produced, and if produced would have gone against the respondent, as the respondent’s late father denied being part of or consented to the transaction that produced Exhibit B and C, the latter, Exhibit C cannot be said to be conclusive evidence of title in relation to the certificate of occupancy and is therefore void ab initio and does not require revocation or to be set aside as the lower Court intended placing reliance on the case of Kukoyi V Adeuja (2020) 14 WRN 120.

The appellant submitted that in light of the materials in pages 3-4, 5-7, 15-16, 22, 23 and 25 of the record that the appellant’s late father completed refund of the purchase price of the land to a Mr. Michael Nwa-Obiora Ekwerekwu who had purchased the land from the appellant’s family and had conveyed it to a Mr. Sampson Chukwuma Obienu who was alleged to have sold the land to the respondent’s late husband, a Mr. I.J. Oruwari, and that the mediation by the appellant’s late father was without prejudice the lower Court was wrong to hold that the appellant’s late father did not complete refund of the purchase price and that the failure to call a Mr. Obienu as a witness was of no moment as oral evidence cannot contradict or vary documentary showing the finding of the lower Court was perverse evidence and that the solicitors that were part of the exercise had authority to so act and bind their chiefs in consequence placing reliance on the cases Chidoka & Anor V Ibezi & Ors (2020) 2 WRN page 114 at page 128 lines 25-35, Emmanuel V Umana (2010) Vol. 256 LRCN page 32 at 83, Afegbai V A-G Edo State (2001) 33 WRN page 29 at 51-52 lines 15-5, Ashakacem Plc V A.M. Inv. Ltd (2019) Vol. 289 LRCN page 1 at 25.

The appellant submitted that his late father cannot be bound by the contract alleging sale of the family land in virtue of the doctrine of privity of contact placing reliance on the cases Reichie V N.B.C.I. (2016) 8 NWLR part 1514 page 294 at 314, Ironbar V Fed Mortgage Fin (2009) 46 WRN page 146 at 171-173 lines 40-5, page 176 lines 35-40, pages 177-178 lines 45-20, B.B. Apugo & Sons Ltd V OHMB (2016) Vol. 261 LRCN page 1 at page 34, Adeleke V Iyanda (supra) page 1 at 17 line 5.

The appellant submitted that having not put in evidence the 1965 conveyance that was the root of title to the land, the respondent had to rely on the strength of her case as the appellant did not counter-claim and had no onus to prove his case, and having failed to discharge the burden of proof with credible evidence the lower Court was wrong to enter judgment for the respondent placing reliance on the cases Akintola V Lasupo (1991) 3 NWLR (Pt.180) page 108, Okorie V Udoni (1960) SCNLR page 326; (1960) 5 FSC 162; (1960) 3 NSCC 108, The Registered Trustees of Apostolic Church V Olowoleni (1990) 6 NWLR (Pt.158) page 514, Emeka V Okoroafor & Ors (2017) Vol. 268 LRCN 132 at page 233P, MTN Nig. Comm. Ltd Corp. V Comm. Inv Ltd (2019) 30 WRN 1 page 38 lines 15-20, FCDA V Kuda Engr. and Constr Co. Ltd (2014) 34 WRN 72 at 116 lines 35-40, Onovo V Mba (2014) 14 NWLR (Pt. 1427) 391; (2014) LPELR-23035 (SC)-73, ELIAS V Disu (1962) ALL NLR (Pt.1) 214 at 220, Kodilinye V Odu 2 WACA 336 at 337 338, Idundun V Okumagba (1976) 9-10 SC 227 at page 93, Adewunmi V Oketade (2020) 23 WRN page 25 at 38 line 40, Kukoyi V Adeuja (supra) page 120 at 152, Chukwueke V Okorokwo (1999) 1 NWLR (Pt.587) 410 at p.418, Omotoya V Co-Op. supply Ass. (supra) pages 35-36 lines 45-5, Yanaty Pet. Ltd V E.F.C.C. (2018) Vol. 277 LRCN 105 page 146 Uee, Chief T.A.L. Akapo (Ojora of Lagos) V Alhaji H.A. Hakeem-Habeeb & Ors (1992) 7 SCNJ 119; (1992) NWLR (Pt.247) 266; (1992) LPELR 352 (SC); Engineer S.D. Yalaju Amaye V Associated Registry Engineering Contractors Ltd. & Ors (1990) 6 SC 157; (1990) NWLR (Pt. 145) 22; (1990) LPELR-3511 (SC); upon which the appellant urged that the appeal be allowed and the judgment of the lower Court reversed and the case of the respondent at the lower Court be dismissed.

The respondent filed her brief of argument on 05.03.2021, the respondent raised objection that as issues (a) and (b) of the appellant’s issues for determination covering grounds 4, 5, 8 and 12 and issues (c) and (d) thereof covering grounds 1-4 at the notice of appeal were jointly framed respectively, by the appellant the said issues are incompetent and the arguments thereon should not be countenanced and should, also, be struck out citing in support the cases Nwankwo & Ors V Yar’Adua & Ors (2010) LPELR-2109 (SC), Ibrahim V Ojomo (2004) 4 NWLR (Pt.862) 89 at 104, Iroegbu V Mpama & Ors (2009) LPELR-8510 (CA), Ashagba & Ors V Monn & Anor (2011) LPELR-9122.

The respondent submitted that her root of title was based on production of documents as one out of the five possible methods of proving title to land and that on the oral evidence of the respondent and the evidence extracted in cross-examination on the deed on conveyance of 1965, non-production of the deed of conveyance was not fatal to her case which was sufficiently established by Exhibits B and C and did not require the respondent to prove the title of her vendor therefore that aspect of the case was not abandoned as in placing reliance on the case Idundun V Okumagba (1976) 8-10 SC 227, Agboola V Uba Plc & Ors (2011) LPELR-9353 (SC), Olaniyan & Ors V Fatoki (2013) LPELR-20936 (SC), Atunrase & Ors V Phillips & Ors (1996) LPELR-636 (SC), Buka & Ors V Lawan (2017) LPELR-43315 CA, Aiyeola V Pedro (2014) LPELR-22915 (SC), Bachirawa V Abdullahi (2016) LPELR-41170 (CA) per Abba Aji, JCA (Pp. 21-23 para F), Oyebamiji & ors v. Lawason & Ors (2008) LPELR-2864(SC), Amaechi V INEC & Ors (2008) LPELR-446 (SC), MTN V Corporate Communication Investment Ltd (2019) LPELR-47042 (SC) UBN PLC & Anor V Ayodare and Sons (Nig.) Ltd & Anor (2007) LPELR-3391 (SC), Omisore & Anor V Aregbesola & Ors (2015) LPELR-24803 (SC), Pius V State (2015) LPELR-24446 (SC), State V Yahaya (2019) LPELR-47611 (SC).

The respondent submitted that since the appellant did not request for production of the deed of conveyance of 1965, Section 167 of the Evidence Act 2011 (Evidence Act) on the adverse effect of withholding evidence would not apply to the case placing reliance on the cases of Flobby Enterprises (Nig.) Ltd V NDIC & Ors (2019) LPELR-47273 (CA), Sunday V State (2014) LPELR-24415(CA).

The respondent submitted that each case is decided on its peculiar facts and circumstances and the decision in one cannot be applicable to the other unless the two are similar in that regard therefore the appellant having put his title in issue in the pleadings cannot evade the burden placed on him to establish it under the guise of not counterclaiming which he failed to discharge placing reliance on the cases Skye Bank & Anor V Akinpelu (2010) LPELR-3073(SC) and Mai-kiri V Yahaya (2018) LPELR-46595 (CA), Titiloye V Olupo (1991) 7 NWLR (205) 519. Ali V Ndic (2014) LPELR-22422(CA), Jolasun V Bamgboye (2010) LPELR-1624 (SC), Olusanya V Osinleye (2013) LPELR-20641 (SC), Adinlewa & Anor V Bamidele & Anor (2019) LPELR-48042 (CA), Mohammed & Ors V Umoru (2019) LPELR-47499 (CA), Ifediora & Ors V Okafor & Ors (2019) LPELR-49518 (SC) and ALE & Anor v Ugiagbe & Anor (2020) LPELR-51028 (CA), Makon Engr. & Tech Services Ltd & Anor V Nwokedinkor (2019) LPELR-49071 (CA), Nkado & Ors V Obiano & Anor (1997) LPELR-2043 (SC), Umeojiako & Anor V Ezenamuo & Ors (1990) LPELR-3367 (SC), CBN & Ors. V Okojie (2015) LPELR-24740 (SC).

The respondent submitted that a claimant can rely on the weakness of the defendant’s case where the weakness supports or strengthens the claimant’s case placing reliance on the cases of Anukam V Anukam (2008) LPELR-500 (SC).

The respondent submitted that as the appellant did not tender evidence to rebut the prima facie title of the respondent in the land by virtue of the certificate of occupancy, Exhibit C, the respondent had proved exclusive possession of the land to entitle her to the judgment of the lower Court placing reliance on the cases Agboola V UBA PLC & Ors (2011) LPELR-9353 (SC), Ayanwale V Odusami (2011) LPELR-8143 (SC), Ekebulu & Ors V Ejidike & Ors (2017) LPELR-42835 (CA), Molokwu & Anor V Divine Power Gospel Mission Int’s & Ors (2020) LPELR-49840 (CA), Ogbechie & Ors. V Onochie & Ors (1988) LPELR 2277 (SC), Akinterinwa & Anor V Oladunjoye (2000) LPELR-358 (SC).

The respondent referred to the cases of Aliyu & Anor V Gwadabe and Ors (2014) LPELR-23463 and Ibrahim v Osunde (2009) LPELR-1411 for the contention that where a person who has no title to a property sells it to another, the sale is void ab initio upon which the respondent submitted that as there was no evidence that the appellant’s late father completed refund of the purchase price of the land, the shortfall of N100 to complete the refund rendered the appellant’s title over the piece of land of no effect and that oral evidence except that of the person the money was to be refunded to who was not called as a witness would not be admissible to vary the documentary evidence over the issue placing reliance on the cases of Achonu V Okuwobi (2017) LPELR-42102(SC), Ibrahim V Abdallah & Ors (2019) LPELR-48984 (SC), Ochiba V State (supra) and Umeojiako & Anor V Ezenamuo & Ors (supra).

The respondent submitted that the appellant cannot turn round to argue that the steps taken to refund the purchase price were done without prejudice and at the same time rely on the documents Exhibit D, E, F, G, H, J, K, L and M constituting the said steps in a bid to support his case as it would be inequitable to do so placing reliance on the cases Ogunpehin V Nucleus Venture (2019) LPELR-48772 (SC), UDE V Nwara & Anor (1993) LPELR-3289 (SC) upon which the respondent urged that the appeal be dismissed for lacking in merit with substantial cost.

The appellant submitted in the reply brief filed on 13.10.2021 that the Court is concerned with substance not form and that where issues are formulated in excess of the grounds of appeal, the issue(s) in excess is liable to be struck out, therefore the issues not the grounds of appeal are to be considered in an appeal citing in support the cases Ighedo & Ors V PHCN PLC (2018) Vol. 286 LRCN, page 189 at 225, Roe Ltd V University of Nigeria (2018) Vol. 285 LRCN, page 161 at 178, Ayandade V O.A.U.T.H.C.M.B. (2017) NWLR (Pt.711) 187, Dung V Gyang (1994) 8 NWLR (Pt.362) 315, Labiyi V Anretiola (1992) 8 NWLR (Pt.258) 139, Iroegbu V Mpama & Ors (2009) LPELR-8510 (CA) page 12 A-C, Ogbuanyinya V Okudo (No.2) (1990) 4 NWLR (Pt.146) 551, Bankole Ors V Pelu & Ors (1991) LPELR 749.

The appellant submitted that whereas in the Bukar V Lawan (supra) case, the family members gave evidence, in the present case no family member gave evidence distinguishing that case from the case that failure to produce the deed of conveyance of 1965 was not fatal to the case; that the case of Aiyeola v Pedro (supra) cited by the respondent supports the appellant’s case; that in the case of Adinlewa V Bamidele (supra) cited by the respondent both disputants or parties were members of the same family unlike the present case where the respondent relied on a sale by a member of the appellant’s family and is on that basis inapplicable to the present case, so urged the appellant; and that the appellant, being customary owner of the land, its alleged subsequent sale to the respondent’s late husband by a person that had no title to pass did not give the respondent title to the land vide Aliyu V Gwadabe (2014) LPELR-23463 (CA); upon which the appellant urged that all the issues be resolved in his favour and the appeal be allowed.

A good brief aids speedy administration of justice in that it assists the Court to readily grasp the issue(s) involved in the appeal for quick and time saving dispensation of justice. A good brief is also refreshing to read. It enhances the professional skill of counsel that prepared it. So much has to be said for a good or well prepared brief. But in the interest of substantial justice a bad or unhappily worded brief may be tolerated. Substance not form will then be the raison d’etre’ of accepting an ill-prepared brief Akpan V Bob (2010) 17 NWLR (Pt.1223) 421, the rational being that justice must not be sacrificed on the altar of form or technicality. In other words, it is to avoid throwing the baby (justice) away with the bath water (brief), so to speak.
In as much as it is inappropriate to have more than one issue joined together in a brief, if it appears, as in this case, that the respondent understood and appreciated the substance of the arguments contained in the appellant’s brief and was on that account not prejudiced nor embarrassed nor misled and thereby addressed the arguments in his brief, as in this case, the bad brief will still be used and corporate sense of what it conveys will be the determining factor at the end of the day vide the cases of Obim v Achuk (2005) 6 NWLR (Pt.922) 594, Obiora V Osele (1989) 1 NWLR (Pt.97) 279, National Waterways Authority V The Shell Petroleum Development Company of Nigeria (S.P.D.C.N) (2008) 13 NWLR (Pt.1103) 48 at 64, KLM Royal Dutch Airlines V Jamilat Aloma (2018) 1 NWLR (Pt.1601) 473.

Consequently, although the objection is well taken, it was not shown to have caused a miscarriage of justice as brief writing which is one of the aspects of fair hearing was not fettered in the case in view of the response of the respondent in her brief to the arguments in the appellant’s brief and it is on this footing that I respectfully refuse to countenance the preliminary objection to the issues raised by the appellant in the appeal.

The respondent as the claimant had by paragraph 12 of the statement of claim contained in page 4 of the record claimed the reliefs of general damages of N50,000.00 for trespass to the disputed plot of land against the appellant and a perpetual injunction restraining the appellant, his agents and all those claiming through the appellant from continuing the said acts of trespass on the disputed plot of land. The respondent did not claim any declaratory relief, therefore any admission made in the statement of defence tending to support the case of the respondent will count in favour of the respondent.

The respondent relied on documents of title, deed of conveyance in Exhibit B and a certificate of occupancy, Exhibit C, for the purpose of establishing exclusive possession of the disputed plot of land to sustain the two reliefs (supra) she had claimed in the action. The case of England v Palmer (1955) 14 W.A.C.A 659 at 660 decides it that in a trespass action an averment of possession, is an averment of ownership and ownership may be proved by possession, that as mere possession is sufficient to maintain trespass against anyone who cannot show a better title, the plaintiff’s allegation that the defendant trespassed into her plot of land is satisfied prima facie by proof that the defendant trespassed into the plot of land in the possession of the plaintiff, therefore an allegation that the plaintiff is owner puts possession and not ownership in issue, for it cannot be supposed or taken that the plaintiff means to take upon himself a larger amount of proof than the law requires for the purpose of an action in trespass relying on the old English cases of Whittington V Boxall (1843) 12 L.J.Q.B. 318 or 114 E.R. 1201 at 1203 and Heath V Milward 132 Engl. R. 39. See also Badejo V Sawe (1984) N.S.C.C. 481 at 482 to the same effect that in a trespass action, an averment of ownership is consistent with, and amounts to, an averment of possession and the case of Ayanwale V Odusami (supra) cited by the respondent.
The case of Amakor v Obiefuna (1974) N.S.C.C 141 at 145 and 146 is also in point thus-
“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong-doers except a person who could establish a better title…
Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, or he has the right to such possession, of the land in dispute. But once a defendant claims to be the owner of the land in dispute, title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant.”
It follows that in an action for trespass coupled with perpetual injunction, exclusive possession determines the dispute.

The certificate of occupancy, Exhibit C, is prima facie evidence of exclusive possession vide the case of General Cotton Mill Limited v Travellers Palace Hotel (2019) 6 NWLR (Pt.1669) 507 where the Supreme Court held inter alia that by virtue of Sections 14 and 15 of the Land Use Act, 1978, the holder of a statutory right of occupancy (such as the respondent in this appeal) has a title which confers on her exclusive rights to the land and sole right to an absolute possession of all improvements thereon.

Having established exclusive possession of the disputed land by the production and tendering in evidence of the certificate of occupancy, Exhibit C, granted by the Governor of Rivers State, the respondent discharged the initial evidential burden of proof of trespass to land covered by Exhibit C and the onus shifted to the appellant to prove better title to the disputed portion of land to ward off the exclusive possession conferred on the respondent by the certificate of occupancy, Exhibit C.

The appellant started by asserting that since Exhibit C was based on the deed of conveyance, Exhibit B, the deed of conveyance of 1965 upon which Exhibit B was based having been pleaded but not tendered in evidence signified that had it been tendered in evidence it would have worked against the respondent who therefore had to withhold it with the attendant consequence of Section 167(d) of the Evidence Act on the withholding of evidence.
It is my considered view that, first, the section would apply only where there is no other evidence on the issue which was not the case here as the appellant by his pleadings and evidence did not deny the existence of the land transaction of 1965.
Second, for Section 167(d) of the Evidence Act to apply the party seeking to invoke it must establish compliance with the condition precedent that he had demanded for the document by serving either subpoena or notice to produce on the party or person in possession of the document who had failed or neglected to produce it upon formal demand which was not the case here vide Floppy (supra) and the other cases (supra) cited by the respondent.

It is therefore settled that subpoena or notice to produce or an oral or written application should be the form of demand to be made for the production of a document before the person or party upon whom the demand is made without compliance with the demand would come within the dragnet of Section 167(d) of the Evidence Act on the withholding of evidence in his possession vide the cases of Ewuaga V State (2018) 7 NWLR (Pt.618) 262 at 282, Madukaegbu v State (2018) 10 NWLR (Pt.1626) 26, Nweke v State (2017) 15 NWLR (Pt.1587) 120, Mohammed V State (2018) 13 NWLR (Pt. 1635) 85 at 105.

The appellant introduced the issue of refund of the purchase price to recover or reclaim what he alleged to be their family land both in the statement of defence and evidence at the lower Court only to turn round on appeal to contend that by the doctrine of privity of contract he was not bound by the sale transaction in Exhibit B. I think the appellant cannot be allowed to change course mid-stream from the case he presented at the lower Court and maintain a different complexion like a chameleon on appeal.
The appellant is bound to be consistent with his case from the trial Court to the appellate Court unless leave of the Court is sought and obtained by the appellant to introduce a new or fresh case radically different case from the one fought at the trial Court before such case may be accommodated, which was not the case here, therefore the present somersault will not be countenanced vide Nyako V State House of Assembly of Adamawa State (2017) 16 NWLR (Pt. 1562) 347.
Equally, the arguments on privity of contract as well as the effect of the series of correspondence towards amicable settlement of the dispute were not based on pleadings and the evidence in the record. It is trite that parties are bound by their pleadings and would not, to protect and safeguard the right to fair hearing and eliminate surprise or trial by ambush, be allowed to stray outside the pleadings vide Emegokue V Okadigbo (1973) NSCC 220. The issues of privity of contract and the effect of the series of correspondence for amicable settlement of the dispute thus went to no issue and are also hereby not countenanced.
The appellant turned round to contend contrary to his case at the lower Court that the series of correspondence tendered in evidence were mediation efforts that were done without prejudice and are on that account inadmissible and/or of no evidential value. Again, the appellant is bound by the case he presented at the lower Court and cannot swerve from it, unless the appellant obtained the leave of the Court to do so which was not the case here.

In addition, the appellant’s late father and by extension the appellant being members of the same family that were alleged to be vendors in the land sale transaction are privies in estate with those that allegedly sold the land and on that score are bound by the alleged sale transaction until validly set aside vide Banire V Balogun (1986) 4 NWLR (Pt.38) 746 at 753, Coker V Sanyaolu (1976) 9-10 S.C. 203. There is therefore no substance in the contention of the appellant that the doctrine of privity of contract shielded the appellant from the land sale transaction in question.

Admittedly, the appellant alleged that the land sale transaction between a Mr. S.C. Obienu and the respondent’s late husband was over the appellant’s family land and that Exhibit B formed the genesis of the exclusive possession of the land by the respondent in virtue of Exhibit C, the certificate of occupancy, not the 1965 land sale transaction. The heart of the dispute therefore did not centre on the alleged land sale transaction of 1965, but the land sale transaction contained in Exhibit B, and was on that account a non-event or side-wind at the lower Court.

The series of correspondence between the parties solicitors admitted in evidence as Exhibits alluded to the land sale transaction of 1965 but did not make it the central issue in the dispute as the land sale transaction in Exhibit B is the cornerstone of the dispute and was emphasized by the parties which overshadowed the alleged land sale transaction of 1965 and was thus of no moment to the epicentre of the dispute and on the totality of the evidence boiled down to a side-wind or peripheral issue, in my modest view.

Based on the marginal relevance of the alleged land sale transaction of 1965 to the dispute, its mention by the parties or any of the parties without production of the deed of conveyance of 1965 could not have affected the fortunes of the dispute. It therefore seems certain that its non-production in evidence did not alter the course of the real dispute between the parties which concentrated on Exhibits B and C, as no relief was predicated on declaration of title to the disputed land to make the alleged land sale transaction of 1965 material to the dispute.

I agree with the appellant that the lower Court was wrong to hold that the appellant was obliged to establish the genealogy of the disputed plot of land which was not the fulcrum of dispute as the appellant had not counter-claimed title to the disputed plot of land but had set out in a bid to prove that he had refunded the purchase price of the deed of conveyance, Exhibit B, upon which the exclusive possession of the disputed plot of land that had vested in the respondent in virtue of Exhibit C, the certificate of occupancy, was wiped out or evaporated.

Consequently, all that fell for the appellant to prove was the full refund and acceptance of the purchase price by the respondent to drain the exclusive possession of the plot of land out of Exhibit C built on Exhibit B and thus displace the respondent’s exclusive possession of the disputed plot of land to defeat the action for trespass and perpetual injunction.

The linchpin of the dispute is whether the appellant made good his allegation that his late father had refunded the purchase price of the plot of land in the land sale transaction contained in the deed of conveyance, Exhibit B, and had by the refund recovered the land to factually void the deed of conveyance, Exhibit B, upon which the certificate of occupancy, Exhibit C, was predicated to show that the title of respondent’s vendor in the land covered by Exhibit B had been extinguished by the refund of the purchase price with the result that the vendor in Exhibit B no longer had title to pass to the respondent to obtain the certificate of occupancy Exhibit C and thus displaced the prima facie exclusive possession or ownership of the disputed plot of land by the respondent in virtue of Exhibit C.

The documentary evidence towards proof of the alleged refund of the purchase price in question will be considered without reference to any oral evidence against the documentary evidence vide Section 128 of the Evidence Act to the effect that oral evidence should not be accepted to contradict, alter or add to documentary evidence, save the exceptions in the said section which are inapplicable to the present case. In that wise, also, it was unnecessary to expect the vendor in Exhibit B to give evidence as the determination of the issue revolved around the orbit of the documentary evidence, therefore it was not lethal not to have called the vendor in Exhibit B as a witness in the case, in my modest opinion.

The appellant focused on the materials contained in pages 3-7, 15-16, 23 and 25 of the record to urge that it be held that his late father completed refund of the purchase price of land in the land sale transaction contained in Exhibit B. Being evidence or materials in the record, the general powers of re-hearing vested in the Court by Section 15 of the Court of Appeal Act 2004, as amended, will be invoked to look at the said materials to ascertain whether the appellant’s late father completed refund of the purchase price to free the plot of land from encumbrance brought about by the land sale contained in Exhibit B. Pages 3-4 of the record contain part of the statement of claim of the respondent which does not bear on refund of purchase price of the land.

Pages 5-7 of the record contain the traverse of the appellant in his statement of defence to the effect that his late father completed refund of the purchase price but that the respondent’s late husband refused to collect the purchase price, so he instituted an action at the Magistrate Court to compel the respondent to collect the purchase price. The state of the pleadings therefore showed that the purchase price of the sale of the plot of land by a Mr. S.C. Obienu to the respondent’s husband was not collected by the respondent’s late husband before the matter went to the lower Court in the present action.

Pages 15-16 of the record contain part of the evidence of the respondent as CW1 at the lower Court with no reference to refund and collection of the purchase price of the land sale transaction between a Mr. S.C. Obienu and the respondent’s late husband. All that these pages of the record contain in material particular are the admissibility of the deed of conveyance between Mr. S.C. Obienu and the respondent’s late husband in respect of the dispute plot of land as Exhibit B and the certificate of occupancy covering the land as Exhibit C.

Pages 22, 23 and 25 of the record contain part of the testimony of the appellant’s late father and his answers in cross-examination where he stated that he had refunded the purchase price of the land to a Mr. S.C. Obienu’s lawyer but the respondent’s late husband refused the invitation to collect the refunded purchase price. The bottom-line is that going by the above evidence, the respondent’s late husband did not collect the purchase price of the plot of land even if it was fully refunded by the appellant’s late father to free the plot of land from the clog of the sale transaction between a Mr. S.C. Obienu as the vendor and the late husband of the respondent as the purchaser.

The institution of the case at the Magistrate Court by the appellant’s late father to compel the respondent to collect the refund of the purchase price demonstrated the self-evident and, also, self-realisation of the appellant that the respondent had not collected the purchase price to release the disputed plot of land from the sale transaction in Exhibit B. Consequently, the conveyance transaction in Exhibit B remained intact up to the time the case was filed at the lower Court to the time judgment was given in the case. So, in my modest view, the life or oxygen given to Exhibit C by Exhibit B was unimpaired up to the time the lower Court gave judgment in the case.

The fact that the appellant through his late father made frantic/concerted efforts to refund the purchase price of the disputed plot of land demonstrated that the appellant acknowledged the validity of the sale.

The documentary Exhibits do not also help matters that the alleged refund was collected by the respondent. More devastating is the fact that the lower Court which had the vantage position of watching the demeanour of the witnesses in the course of their respective testimonies disbelieved the appellant’s side that the purchase price was fully refunded, therefore, I am slow to intervene on the credibility of the witnesses having not seen and gauged their respective demeanour in the course of their testimonies at the lower Court.

In the light of the admitted entry of the appellant in the disputed plot of land through his late father who had erected some structures thereon upon the entry and considering that the appellant did not prove exclusive or better right to possession or title to the disputed plot of land to oust the exclusive possession of the land by the respondent in virtue of Exhibit C, the certificate of occupancy granted by the Governor of Rivers State, the appellant was rightly held liable for trespass as the privy of his late father.

The lower Court, accordingly, came to a right decision in the case which is the paramount concern of an appellate Court to see to it that the lower Court came to a right decision in the case, not whether the quality of the reasons for the decision were vide the case of Ukejianya V Uchendu (1950) 13 W.A.C.A 45.

On the whole, I find no substance in the appeal and hereby dismiss it and affirm the judgment of the lower Court (Ebeku, J.) with N200,000 costs in favour of the respondent against the appellant.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in its draft, the lead judgment just delivered by my noble Lord, the Hon. Justice J. S. Ikyegh, JCA, the Presiding Justice, Court of Appeal, Port Harcourt Division in which after a painstaking analysis and thorough consideration of the issues which the appeal has thrown up, has come to a decision that the appeal lacks merit, and has dismissed it with orders as to costs in favour of the Respondent against the Appellant.

I wholeheartedly accept the said decision, and adopt it as mine, and I too dismiss the appeal and abide with the consequential orders made as to costs in favour of the Respondent.
Appeal is dismissed.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have read in its draft, judgment just delivered by my learned brother, Joseph Shagboar Ikyegh JCA. I agree with the analysis and conclusion reached by my learned brother. The appeal lacks merit and it is hereby dismissed. I abide by the cost awarded to the Respondent against the Appellant.