MRS. ABIODUN E. AISIEN v. MR. ROBSON EMMANUEL AKINNULI & ANOR
(2012)LCN/5533(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2012
CA/L/288/06
RATIO
APPEAL: ROLE OF RESPONDENT IN AN APPEAL
The law and procedure is that the Respondent is obliged to defend the judgment of the trial court. Where a person is aggrieved by the judgment of the trial court, the person appeals and cannot be a Respondent. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PROCEDURE: REQUIREMENT OF FILING A PROCESS
There is no doubt that it is settled by all the authorities cited by the learned Appellant’s counsel particularly in SLB Consortium Vs. NNPC supra that a process prepared and filed in act of law by a legal practitioner must be signed by the legal practitioner and not by an unknown person in the name of a firm of legal practitioners. Such process not signed by a legal practitioner registered to practice law in Nigeria is a defective process and the vice inherent in the process is fundamental and sufficient to make the process incompetent and invalid. Any judicial activity based on such an incompetent process has to be set aside as null and void. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: DUTY OF A PARTY RAISING THE PLEA OF NON EST FACTUM
It is elementary that a party raising a plea of non est factum on the ground of mistake as to contents of a document he has executed must have taken such precautions as he reasonably could and must prove that he took all reasonable care as well as proving all the other circumstances necessary to found the relief of non est factum. See Ezeugo Vs. Ohanyere (1978) 6 & 7 SC 171 and Union Bank Nigeria Plc Vs. Ishola (2001) 15 NWLR (Pt. 735) 47. The second Defendant did not plead or lead any evidence of any such reasonable precaution or reasonable care taken. Similarly, it is trite that where it is the terms of a deed or writing and not its nature that are the subject of mistake, the plea of non est factum will not avail the party concerned-See Awosile Vs. Sotunbo (1992) 5 NWLR (Pt. 243) 514 and Union Bank Nigeria Plc. Vs. Ishola (supra). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
INYANG JOHN OKORO Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
MRS. ABIODUN E. AISIEN Appellant(s)
AND
1. MR. ROBSON EMMANUEL AKINNULI
2. ALHAJI NUHU AYINLA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Honourable Justice H. A. O. Abiru of the High Court of Lagos State delivered on the 9th day of May, 2005. The facts that led to this appeal are as follows:-
There were three claims before the trial court; the Claimant’s claims, the counterclaim of the first Defendant and the counterclaim of the second Defendant. The Claimant filed an amended statement of claim for the following reliefs:-
(i) A declaration of title to the entire piece of land with all its appurtenances measuring approximately 567.665 square meters known as No.210, Badagry Expressway, Ojo shown on survey plan No. SJA/095/92/L with a statutory right of occupancy dated the 18th of October 1998 and registered as No.55 at page 55 in Volume 1998L of the Register of Deeds at the Lands Registry, Alausa, Ikeja.
(ii) An order directing the second Defendant or in her stead the Chief Registrar of the High Court of Lagos State to sign a Deed of Rectification to incorporate a new survey plan to rectify the survey plan No. SJA/095/92/L annexed to the statutory right of occupancy registered as No.55 at page 55 in Volume 1998L and Deed of Assignment registered as No. 77 at Page 77 in Volume 2055 of the Register of Deeds at the Lands Registry, Alausa, Ikeja.
(iii) A mandatory injunction ordering the Defendants, their privies, agents, servants or otherwise howsoever to desist from further trespassing on the said piece of land on which they are trespassing already.
(iv) An order of perpetual injunction restraining the Defendants by themselves, privies, agents, servants, assigns or whosoever claiming or acting under their authority from trespassing or continuing any other acts or omissions interfering with the Claimant’s legal or equitable titles.
(v) An award of the sum of N5 million as general damages for trespass from the Defendants jointly and severally.
The first Defendant in response filed an amended Statement of Defence and Counterclaim dated the 23rd of June 2004 with the statement of defence consisting of twenty-five paragraphs and the counterclaim consisting of two paragraphs. By the counterclaim the first Defendant prayed for:-
(i) A declaration that the second Defendant having earlier assigned a piece of land together with fourteen shops at Costain Road, Lagos Badagry Expressway Road, Ojo Town, Olubuade Plank Market measuring approximately 683.215 square meters lacked capacity to subsequently transfer or assign the same land with the shops to the Claimant.
(ii) A declaration that the first Defendant being first in time to the Claimant is the equitable/legal owner in possession and entitled to continue with the possession of the land on which fourteen shops were erected measuring approximately 683.215 square meters at Costain Road, Olubuade Plank Market, Badagry Expressway, Lagos.
(iii) An order setting aside the transfer of the parcel of land on which fourteen shops were erected by the second Defendant to the Claimant and all documents relating thereto.
(iv) An order of perpetual injunction restraining the Claimant and the second Defendant, their privies, agents, servants or otherwise howsoever from disturbing, trespassing or interfering with the first Defendant’s possession and ownership of the land measuring approximately 683.215 square meters on which fourteen shops were built at Costain Road, Olubuade Plank Market, Ojo Town, Lagos.
The second Defendant, in her response, filed an amended Statement of Defence and Counterclaim dated the 21st of October 2004 and it consisted of fifteen paragraphs. By her counterclaim, the second Defendant prayed for an order setting aside the purported Deed of Assignment dated 6th of August 1999 and the Agreement dated the 15th of July 1999.
Issues were joined by the parties in their pleadings. The claimant called 3 witnesses in proof of his case and the 1st Defendant also called 3 witnesses in proof of his case while the 2nd Defendant called two witnesses in proof of her case. The case of the claimant was that he purchased the piece of land measuring 567.665 square meters and known as No. 210, Lagos-Badagry Expressway and more particularly delineated on survey plan No. SJA/095/92/L together with the structures thereon from the second Defendant in 1999 and he paid the full purchase price as demanded by the second Defendant and the second Defendant handed to him the original of the certificate of occupancy covering the land and structures and she executed documents of transfer of the property to him. The certificate of occupancy to the land was admitted as Exhibit 7. The Claimant got the 2nd Defendant to execute two deeds of assignments. The first Deed of Assignment was Exhibit P10 which explicitly described the land as the main building excluding the shops. Exhibit P2 the 2nd Deed of Assignment described the subject matter as per the land described in the certificate of occupancy Exhibit 7.
He was unable to get the tenants of the row of shops to vacate the shops and his solicitor wrote them a letter. Thereafter, the 1st Defendants one of the tenants claimed that he had bought the row of shops from the 1st Defendant in 1997. The claimant averred that he bought all the structures on the land including the shops and had indeed perfected his Deed of Assignment.
The case of the first Defendant was that the said purchase of land and structure by the Claimant from the second Defendant was in respect of the storey building consisting of six number three-bedroom flats with a warehouse on the ground floor known as No. 210, Lagos-Badagry Expressway and it did not include the fourteen shops at Costain Road, Olubuade Plank Market, Lagos.
The 1st Defendant claimed he had been a tenant in three of the shops since 1993 before the row of fourteen shops were sold to him in 1997 by the 2nd Defendant the owner of the shops. He admitted that he had been collecting rents from other tenants in the remaining 11 shops since 1997. His story was that in 1999 he was offered but could not afford to purchase the main building of six three- bedroom flats including a warehouse which the claimant purchased. He claimed he had been in exclusive possession and ownership of the fourteen shops since 1997. He claimed the shops were on a parcel of land measuring 683.215 square meters which abuts on Costain Road, Olubuade Plank Market, Lagos. He had refused the overtures of the claimant to sell the shops to him.
The case of the second Defendant was that she was the owner of the entire property situate and being at No. 210, Lagos-Badagry Expressway in Ojo Local Government Area of Lagos State and it consisted of a dwelling house of six number three-bedroom flats with a warehouse on the ground floor and also fourteen shops facing Costain Road, Olubuade Plank Market and that the main house and the shops were demarcated by a wall fence and have been used as separate units. She averred that the first Defendant was one of her tenants in the shops and that in 1997 she sold the fourteen shops facing Costain Road, Olubuade Plank Market to him.
She thereafter in 1999 sold the main building to the claimant after informing him that she had sold the shops to the 1st Defendant and that the certificate of occupancy of the property extended to the site of the shops by 15ft. She insisted that at no time did she sell or intend to sell the row of shops to the claimant. She claimed that she executed Exhibit P10 which excluded the shops, but was later tricked into executing Exhibit P2 which land covered part of the shops.
At the conclusion of the trial, the court found in favour of the claimant and entered judgment in respect of the Plaintiff’s claim and the Defendants’ counter-claim as follows:
(i) It is hereby declared that claimant is entitled to the entire property lying, being and known as No. 210 Badagry Expressway Ojo inclusive of all structures erected on the piece of land measuring 567.665 square metres delineated on Survey Plan No. SJA/095/92/1 attached to the Statutory Right of Occupancy dated the 18th of October, 1998 and registered as No. 554 at page 55 in volume 1998L of the Register of Deeds at Lands Registry Alausa, Ikeja.
(ii) The prayer for an Order directing the second defendant or in her stead the Chief Registrar of the High Court of Lagos State to sign a Deed of Rectification to incorporate a new Survey Plan to rectify the Survey Plan No. SJA/095/92/1 annexed to the Statutory Right of Occupancy registered as No. 55 at page 55 in Volume 1998L and Deed of Assignment registered as No. 77 at page 77 in Volume 2055 of the Register of Deeds at the Lands Registry Alausa, Ikeja is refused and it is hereby struck out.
(iii) The first Defendant whether by himself, his privies, agents, servants, assigns or whosoever claiming or acting under his authority are hereby perpetually restrained from trespassing or continuing any other acts or omissions interfering with the claimant’s title to the entire property and structures known as No. 210 Badagry Expressway Ojo.
(iv) The prayer for a mandatory injunction is superfluous and repetitive and it is hereby refused.
(v) The claimant is awarded the sum of N100,000.00 as damages against the first defendant for the trespass committed by him on the said property.
(vi) The counter claim of the first defendant and of the second Defendant fail in their entirety and are dismissed.
(vii) The claimant is entitled to the cost of this action assessed at N10,000.00 against the two defendants.
Being dissatisfied with the said judgment the defendants filed separate notices of Appeal while the claimant filed a cross-Appeal against the judgment.
In this appeal, the 2nd Defendant is the Appellant while the claimant is the 1st Respondent and the 1st Defendant is the 2nd Respondent. The Appellant brief was dated and filed on 5/5/09. The 1st Respondent brief was dated and filed on 8/6/09. The 2nd Respondent brief was filed on 25/6/09.
The learned counsel for the Appellant identified 2 issues for determination as follows:-
(i) Whether the learned trial judge was right to have decreed title to the row of Shops situate at No. 210 Lagos/Badagry Expressway, Lagos also known as Olubuade Plank Market in favour of the 1st Respondent having regard to the circumstances of this case. (Grounds 1, 2, 3, 4).
(ii) Whether the learned trial judge was right to have declined to set aside the entire sale to the 1st Respondent having regard to the circumstances of this case (Grounds 5, 6 and 7).
The 1st Respondent counsel adopted the above issues while the 2nd Respondent counsel identified his own issues as follows:-
(i) Whether in view of the state of pleadings and quality of evidence adduced before the court in the findings and conclusion(s) of the court declaring the title of the 1st Respondent to the row of 14 shops can stand; and
(ii) Whether in view of the circumstances of this case, the learned trial judge was not wrong to have refused to grant the Appellant’s Courter-claim.
I am of the view that an answer to the 2nd issue identified by the Appellant would also suffice for the 2nd issue identified by the 2nd Respondent. It is pertinent to note that even though the 1st Respondent filed a cross appeal, the brief filed by the 1st Respondent did not contain any issue that can be construed as a complaint against any aspect of the decision of the trial judge. The brief is no more than a Respondent’s brief as it is captioned and it will be treated as such.
In respect of the 2nd Respondent brief. The law and procedure is that the Respondent is obliged to defend the judgment of the trial court. Where a person is aggrieved by the judgment of the trial court, the person appeals and cannot be a Respondent. Since the Appellant and 2nd Respondent were sued as Defendant at the trial court, they should both have filed joint or individual briefs as Appellants against the 1st Respondent who was winner at trial court. The 2nd Respondent’s rights are subsumed in that of the Appellant. The 2nd Respondent brief as constituted is misconceived and is hereby struck out.
I will only take cognizance of the Appellant and 1st Respondent brief in the determination of this appeal.
At the hearing of the sister appeal and cross appeal CA/L/288A the Appellant raised an issue of the competence of the writ of summons and Statement of Claim. There was the complaint that the writ and Statement of Claim were not signed by a legal practitioner known to law. Since the basis of the case at the trial court which also culminated in this appeal is the writ and Statement of Claim, the parties were invited to address the court in respect of that issue.
Mr. Rasaq learned counsel for the Appellant argued that the writ and Statement of Claim not being signed by a legal practitioner are both incompetent and must be struck out and the appeal allowed. He cited Okafor Vs. Nweke (2007) 3 SC Pt. 2 Pg. 55 at 66-67; Ogundele Vs. Agiri & Anr. (2009) 12 SC Pt. 1 Pg. 135 at Pg. 165-166; Oketade Vs. Adewumi (2010) 2 -3 SC Pt. 1 Pg. 140 at 147; First Bank Vs. Alh. Maiwada SC/204/02 delivered on 25/5/12. Learned 1st Respondent counsel conceded to the arguments which were also adopted by learned counsel to the 2nd Respondent. There is no doubt that it is settled by all the authorities cited by the learned Appellant’s counsel particularly in SLB Consortium Vs. NNPC supra that a process prepared and filed in act of law by a legal practitioner must be signed by the legal practitioner and not by an unknown person in the name of a firm of legal practitioners. Such process not signed by a legal practitioner registered to practice law in Nigeria is a defective process and the vice inherent in the process is fundamental and sufficient to make the process incompetent and invalid. Any judicial activity based on such an incompetent process has to be set aside as null and void.
In the circumstances, the writ of summons and the Statement of Claim in this case are hereby struck out as incompetent.
I am obliged the penultimate court to consider the issues submitted for determination in this appeal in the event that I am found to be wrong on the issue of jurisdiction just decided.
ISSUE ONE
On this issue, learned Appellant’s counsel argued that the identity of the land was put in issue by the parties in this case. He claimed that the 1st Respondent failed to prove the location, the features and the extent of the land he claimed and thus had failed to prove his case and the case should be dismissed. He cited Nwogu V. Njoku (1990) 3 NWLR Pt. 140 Pg. 570 at 586; Baruwa V. Ogunsola 4 WACA 149, Kwadzo V. Adjei 10 WACA 274. Appellant’s counsel argued that the 1st Respondent had wanted declaration of title to 567. 665 sqm known as Plot 210 Lagos/Badagry Ojo Government Area of Lagos State as shown on Survey Plan No. SJA/095/92/L attached to Statutory Right of Occupancy dated 18/10/98 Registered as No.55 at Pg. 55 in Vol. 1998L at the Lands Registry in Lagos. He argued that the 1st Respondent relied on an inaccurate survey plan to push his claim. That was why the 1st Respondent had included a relief to the effect that the Chief Registrar of Lagos State must be mandated to sign a Deed of Rectification to incorporate a new survey plan to rectify the one annexed to the Statutory Right of Occupancy Registered as No.55 Pg.55 in Vol. 1998L of the Lands Registry and Deed of Assignment No. 77 at Pg. 77 in Vol. 2055.
The prayer for a Deed of Rectification was sequel to Exhibit D3 and the evidence of the Deputy Surveyor General of Lagos State DWA that the Survey Plan No.SJA/095/92/L attached to the C of O is unrelated to and far away from the land in dispute.
Learned Appellant’s counsel argued that a prayer to alter the survey plan is an admission that the survey plan relied upon is unrelated to the land in dispute and Exhibit P7 having been found unrelated to the land in dispute, then Exhibit D3, Exhibit P5 and Exhibit P6 derived from Exhibit P7 ought to have been expunged as Exhibits in the case.
He urged this court to discard same. He cited Ikennah V. Bosah (1997) 3 NWLR Pt. 494 at 452.
Learned Appellant’s counsel argued that the 1st Respondent did not discharge the burden of proof to entitle him to judgment. Learned Appellant counsel argued that even though at the trial, the 1st Respondent called a surveyor as P.W.3, P.W.3 gave evidence that his measurement at the site showed that the shops encroached on the land shown in the Certificate of Occupancy Exhibit P7 by 3 metres. Counsel then urged us to regard this as an admission by the 1st Respondent that the land described in Exhibit P7 relied upon by the 1st Respondent did not cover the total area of the shops.
Learned Appellant’s counsel argued that it was erroneously of the trial judge to hold that Exhibit P10 had been jettisoned by the parties as this was not pleaded by the Appellant and 2nd Respondent and was not also pleaded by way of reply by the 1st Respondent. He submitted that the 1st Respondent should have pleaded that before the trial court can conclude that was their case. He cited Bakare V. Ibrahim (1973) 6 SC 205.
He argued that the trial judge did not properly evaluate the evidence of the parties. He submitted that the court cannot ignore the evidence of the Appellant who owned both the main building and the row of shops and had sworn that she sold the main building to the 1st Respondent and the row of shops to the 2nd Respondent. After the sale of the shops by the Appellant to the 2nd Respondent, the Appellant had no further disposable interest in the land. He cited Fasoro V. Beyioku (1988) 2 NWLR Pt.76 Pg.263.
Learned counsel for the 1st Respondent argued that the parties are ad idem as to the identity of the land in dispute. He submitted that the claimant 1st Respondent described the property thoroughly and his description was not denied by the Appellant or 2nd Respondent in their Amended Statement of Defence. Issues were not joined about the identity of the property in dispute which all agreed were the row of fourteen shops abutting on the Olubuade Plank Market Road. The dispute was not regarding the identity but who had legal estate to it by having purchased it first in time.
Counsel argued that in proof of his claim, 2nd Respondent showed his proof of purchase-a receipt purportedly issued by the Appellant dated 10th January, 1997 it was tendered and admitted in evidence as Exhibit “D1”. Interestingly, the said Exhibit ‘D1’ which was issued in 1997 by the Appellant has a serial number which is later in range than the one he (Appellant) issued to the 1st Respondent in 1999. Appellant’s receipt issued to 2nd Respondent on 10th January, 1997 has a serial No. 3706 whilst the receipts issued by the same Appellant to the 1st Respondent on 15th July, 1999 and 6th of August, 1999 have serial No.2895 and 3465!
Learned 1st Respondent counsel referred us to the fact that the receipt issued by the Appellant to the 2nd Respondent Exhibit D2 dated……………had the exact dimensions of the area they claim the shops were situated was written on it whereas the 2nd Respondent did not do a survey plan of the are of the shops until two years after the land was sold to him. Exhibit D2 was the deed of assignment which also indicated the exact dimension of the land on which they claim the shops were situated.
Learned 1st Respondent counsel also argued that the land area purportedly sold to the 2nd Respondent by the Appellant is larger than the whole area of No. 210, Lagos/Badagry Expressway i.e. Exhibit P7 which covers the whole land area of the Appellant measures 565.665 square metres while a portion of the said land purportedly sold to the 2nd Respondent measures 683.215 square metres!
He argued that the 1st Respondent’s established more credible evidence of his purchase of the property and urged this court to believe same as the trial court did.
Learned 1st Respondent counsel also submitted that assuming whilst not conceding that the 2nd Respondent purchased the row of shops from the Appellant which creates a situation whereby Appellant conveyed legal Estates in the same land to different persons i.e. 1st Respondent and 2nd Respondent; the first to register his interest amongst the two has priority over the subsequent registration. It is the Law that where issue of priority of interest arises and the grant relates to the same parcel of land from the same vendor, the 1st person to register his interest has priority over the subsequent registration.
Learned counsel cited AMANKRA V. ZANKLEY (1963) 1 ALL NLR 304, AWOYEGBE V. OGBEIDE (1988) 1 NWLR (Pt.73) 695 and TEWOGBADE V. OBADINA (1994) 4 SCNJ 161. (P.102) paragraphs E-F.
There are several legs to this issue. On the question of whether there was proper identification of the land in dispute, the learned trial judge held at Pg. 309 of the Record as follows:-
From the pleadings and the evidence led by the parties it was clear that there was no dispute about the property in issue in the suit and it was the property situate lying and being at No. 210, Lagos Badagry Expressway, Ojo, Lagos consisting of a main building made up of six No three-bedroom flats with a warehouse and a big shop on the ground floor and of a row of fourteen shops on the wall fence facing the side road. All the parties were agreed that the photographs tendered as Exhibit P1 (a) to (d) depicted the property. The parties were agreed that the property originally belonged to the second Defendant. The parties were also agreed that the second Defendant sold the main building consisting of the six No. three-bedroom flats with a warehouse and a big shop on the ground floor to the Claimant. The dispute in this suit was whether the second Defendant sold and conveyed to the Claimant the row of fourteen shops on the wall fence and facing the side road when the she sold the main building to him in 1999 and if she did, whether she had not earlier sold the row of fourteen shops to the first Defendant in 1997 thereby lacking the capacity to sell them to the Claimant. The dispute in this suit revolves around the ownership of the row of shops. The identity of the property in dispute was not in contest between the parties and it was not an issue in this suit. The totality of the evidence of the fifth defence witness and the submissions in the written address of the Counsel to the second Defendant on whether or not the survey plan attached to the original document of title of the second Defendant related to the property at No. 210, Badagry Expressway, Lagos and whether or not the survey plans attached to the documents of title relied upon by the Claimant and by the first Defendant referred to the property in dispute with regards to its location thus went to no issue and were totally and completely irrelevant.
I tend to agree with submissions of learned 1st Respondent’s counsel to the effect that the parties were ad idem about the identity of the land in dispute. They all referred to the land as No. 210, Badagry Expressway, Lagos also known as Olubuade Plank Market the Claimant/1st Respondent tendered in evidence a photographs of the property which reflects the row of shop in dispute as Exhibit Pa-d and particularly described the land in dispute in paragraph 10 of his Amended Statement of Claim which was not denied or controverted. We refer the court to Page 105 of the record of appeal, paragraph 2 of the 2nd Defendant/Appellant Amended Statement of Defence at page 82 of the record of appeal and paragraph 2 of the 1st Defendant/2nd Respondent Amended Statement of Defence at page 66 of the record of appeal. Where parties by evidence, adduced both oral and documentary and are ad idem on the identity of the land in dispute, the facts that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming. See the case of MAKANJUOLA AND ANOTHER V. BALOGUN (1989) 2 N.S.C.C. 294 at 295.
Now, let us consider the credibility of the stories put up by the parties. Apart from the points highlighted by the 1st Respondent counsel in relation to the fact that the receipt given to the 2nd Respondent by the Appellant was later in time than the one given to the 1st Respondent, we must also consider the fact that Exhibit D2 executed by the Appellant for the 2nd Respondent has a survey plan Exhibit D1 which covers 683.215 sqm an area in excess of the whole land owned by the Appellant and in excess of the area 565.665 sqm on which she had a Certificate of Occupancy Exhibit P7. The learned trial judge had this to say on the issue of credibility which I do not find perverse and I am obliged to uphold at Pg.317 of the Record.
More importantly, the second Defendant gave clear and uncontradicted evidence that the totality of the land she owned in the neighbourhood of the property was the parcel of land depicted on survey plan No. SJA/095/92/L attached to her certificate of occupancy, Exhibit P7, measuring 567.665 square meters and that it was on this parcel of land that she erected the main building of six flats and warehouse and the row of fourteen shops was on a setback of about fifteen feet and this was confirmed by the third claimant witness. This Court wonders how the second Defendant could then have sold only the row shops, without the main building, along with a parcel of land measuring 683.251 square meters to the first Defendant; a parcel of land bigger than the portion owned by her. No explanation was offered for this anomaly by any of the defence witnesses.
Indeed the evidence from all parties is that the portion on which the fourteen shops were built was mere setback from the side road. Even if a building permit was given to build the shops, it is unlikely that a Deed of Assignment would have been issued. All lends credence to the argument by the 1st Respondent counsel that Exhibit D1 and D2 were probably cooked up.
On another wicket, according to evidence before the court, when the tenants refused to vacate the shops the Claimant/1st Respondent instructed his solicitors to write them a letter tendered as Exhibit P8 and in response to the Claimant’s letter the 1st Defendant/2nd Respondent’s Solicitors wrote a letter tendered as Exhibit P9 wherein he states that the Appellant bought the shops “about ten years ago”. The Appellant now has in evidence that he bought the land in dispute in 2002 and about 1992, unbelievable!
Exhibit D2 was stamped in 2002. I have to agree with the view of learned 1st Respondent counsel that it offends S.90 (3) of the Evidence Act being a document made in anticipation of litigation and dining the pendency of the suit. See OGIDI V. EGBA (1999) 10 NWLR Pt. 621 Pg. 42.
In sum, in establishing his claim of purchase, the 2nd Respondent led incredible evidence which spoke for and against itself at the same time! It our submission that this kind of contradictory evidence, even when unchallenged by the adverse party certainly offends any rational conclusion or state such that the courts ought not to accord credibility to it. See MAINAGGE V. GWAMMA (2004) 14 NWLR Pt.893 Pg.323 Per ACHOLONU J.S.C.
I have to agree with the learned trial judge that the evidence of the Appellant and the 2nd Respondent as 1st and 2nd Defendants at the trial court are rather incredible and ignonimous and I refer as the trial court did to believe them.
Having disbelieved the evidence of the Appellant and 2nd Respondent, that the 2nd Respondent bought the shops before the 1st Respondent, my view is that the legal interest of the 1st Respondent must take priority over the equitable interest acquired later by the 2nd Respondent. This is because the 1st Respondent as a bona fide purchaser for value had no notice of any previous sale of the shops to a third party even if this were so. That is why the equitable principle of “a bona fide purchaser for value without notice” was enunciated to protect a purchaser from the fraud of his vendor.
I am of the firm view that the 1st Respondent was able to establish that he bought the property including the shops from the Appellant. The 1st Respondent story was never shaken throughout.
I resolve the first issue against the Appellant.
ISSUE TWO
On this issue, learned Appellant counsel argued that the 1st Respondent did not file a defence to the counter-claim wherein allegations of fraud, deceit misrepresentation, illegality and irregularity were pleaded. He submitted that the non joinder of issues entitles the Appellant to judgment without adducing evidence. Learned Appellants counsel argued that the misrepresentation of facts which led to the signing of Exhibit P2 is a vitiating element. Fraudulent representation makes a contract voidable both at law in equity. The Appellant is entitled to set aside the sale because she was misled by the Respondent’s fraudulent representation that she was signing a replica of Exhibit P10 which excluded the Shops. In an action set aside or annul a Sale for fraudulent misrepresentation, it is no defence that the Appellant might have found out the truth if she had made enquiry. See SULE V. AROMIRE (1951) 20 ALLR 34.
In reply learned 1st Respondent counsel argued that the Appellant’s relief is premised on fraud, deceit, misrepresentation, illegality and irregularity, thus the standard of proof required of the Appellant to be entitled under the law for his relief, the allegations must be well-particularised in his pleadings and the standard of proof is as in criminal cases-beyond reasonable doubt. He referred the court to the case of ONOMADE V. ACB LTD. (1997) 1 NWLR (PT.480) 123 S.C.
The following is the incisive and though finding of the learned trial judge on this issue.
On fraudulent misrepresentation, the second Defendant had the responsibility to plead and prove that there was a representation made by the Claimant; that the representation was a statement of existing fact; that the representation was material and unambiguous; that the representation was fraudulent and; that she acted on reliance on the representation. Where there is no representation of existing fact, it is not necessary to proceed to consider the question of falsity-See Agegbai Vs. Attorney General, Edo State (2001) 14 NWLR (Pt.733) 425. The representation that the Claimant was alleged to have made was that Exhibits P2, P5 and P6 were replica copies of Exhibit P10. This allegation was predicated on the case put forward by the second Defendant that she signed only Exhibit P10 with the Claimant on the 15th of July 1999 and that she signed Exhibits P2, P5 and P6 sometime thereafter and together on the representation that they were copies of Exhibit P10 and that she signed them without reading and she only signed the signature pages. As stated earlier, the evidence before the Court show that the Exhibit P2 was signed on the same day as Exhibit P10; on the 15th of July, 1999 and it was so dated by the second Defendant herself and by the second defence witness who witnessed her signature on the agreement. Evidence also showed that the second Defendant and the second defence witness signed every page of Exhibit P2 and not only the signature page. The evidence was consistent with the case of the Claimant that Exhibit P10 was jettisoned by the parties and replaced by Exhibit P2 as the binding agreement. The alleged representation of the Claimant therefore cannot have been a representation of an existing fact as Exhibit P2 was the binding agreement when Exhibit P5 and P6 were made. There cannot thus be said to have been a misrepresentation of fact by the Claimant.
The second Defendant pleaded that she signed the agreement under a mistaken belief of their contents, i.e. non est factum and also that the Claimant fraudulent misrepresented their contents. Neither the second Defendant nor the second defence witness testified that they were prevented or stopped from reading the contents of the three agreements before they signed them. It is elementary that a party raising a plea of non est factum on the ground of mistake as to contents of a document he has executed must have taken such precautions as he reasonably could and must prove that he took all reasonable care as well as proving all the other circumstances necessary to found the relief of non est factum. See Ezeugo Vs. Ohanyere (1978) 6 & 7 SC 171 and Union Bank Nigeria Plc Vs. Ishola (2001) 15 NWLR (Pt. 735) 47. The second Defendant did not plead or lead any evidence of any such reasonable precaution or reasonable care taken. Similarly, it is trite that where it is the terms of a deed or writing and not its nature that are the subject of mistake, the plea of non est factum will not avail the party concerned-See Awosile Vs. Sotunbo (1992) 5 NWLR (Pt. 243) 514 and Union Bank Nigeria Plc. Vs. Ishola (supra). The complaint of the second Defendant was as to the contents of the agreements and not their nature.
I hold the firm view that the Appellant did not prove the spurious allegations of fraud and misrepresentation etc.
The main issues raised in the counter-claim had been decided in the main claim and that was why the learned trial judge was able to peremptorily dismiss the counter-claim. I agree with the reasoning for so doing. The 2nd issue is also resolved against the Appellant.
Notwithstanding the above opinion, due to the effect of the incompetence in the process initiating the claim at the trial court, the writ and claim are hereby struck out. Since the appeal was based on a proceedings that was null and void, the appeal is also struck out. No order as to costs.
JOHN INYANG OKORO, J.C.A.: I read before now the lead judgment of my learned brother, Helen Moronkeji Ogunwumiju, JCA just delivered and I agree that the Originating Process ie., the Writ of Summons which gave birth to this appeal is incompetent and ought to be struck out.
There is no doubt that the Writ was signed by Rhodes & Rhodes, clearly a person not known to be a Legal Practitioner who can sign a process in the Nigerian Court as required by Order 6 Rule 3 of the High Court of Lagos (Civil Procedure) Rules 2004. Even the Statement of Claim on page 48 of the Record of Appeal was also signed by Rhodes & Rhodes. By Section 2(1) and 24 of the Legal Practitioners Act Cap 207 Law of the Federation, 2004, Rhodes & Rhodes which signed the said Statement of Claim is not a Legal Practitioner known law.
The Apex Court has in quite a number of cases hold that where a process or document is to be signed by a Legal Practitioner, any person, not being a Legal Practitioner is incompetent to sign such document. And where this happens, such a document shall be declared incompetent and cannot be used in a judicial process. See Okafor v. Nweke (2007) 3 SC (Pt.2) 55 at 66 – 67; Ogundele v. Agiri & Anor (2009) 12 SC (Pt.1) 140 at 147; SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt.1) 86 and NNB Plc. v. Declag Ltd. (2005) 4 NWLR (Pt.916) 549.
It is on this note that I agree with my learned brother, Ogunwumiju, JCA, that the Originating Process in this matter at the High Court which this appeal originated be and is hereby struck out. I abide by all the consequential orders made in the lead judgment. I also make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I had the great honour of reading in draft the judgment just delivered by my learned brother OGUNWUMIJU JCA, which I am in complete agreement with. I just will add a word of my own.
The issue of the defective originating processes signed by a legal practioner not known to law is one finally settled by the Supreme Court of Nigeria. The suit becomes incompetent, and thus robs the court in which it is placed, the jurisdiction to hear it. See Okafor vs. Nwoke (2007) 3 SC (p.11) 53 at 66 – 67; Ogundele v. Agiri & Ors (2009) 12 SC (Pt.1) 135 at 165 – 166; Oketade v. Adewunmi (2010) 2 – 3 SC (Pt.1) 140 at 147; 1st Bank of Nig. Plc v. Alh. S. Maiwada (unreported) SC 204 delivered on the 25/5/12.
I am in complete agreement with the lead judgment that the suit ought to be struck out. I hereby strike out the suit. I abide by the consequential order contained in the lead judgment.
Appearances
RASAQ OKESIJI WITH HIM K. A. FAGBEMIFor Appellant
AND
O. A. OLULOWO – FOR THE 1ST RESPONDENT
S. O. AJAYI – FOR THE 2ND RESPONDENTFor Respondent
