CHIEF OKEY MBANASO V. DAVIDSMITH OFFOR & ORS
(2012)LCN/5565(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2012
CA/PH/311/2008
RATIO
EVIDENCE: EFFECT OF FACTS ADMITTED
The first is that, that which is admitted needs no further proof. By section 123 of the Evidence Act, 2011, no fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. See also, Honika Sawmill V. Hoff (1994) 2 SCNJ 86 at 97, Temile v. Awani (2001) 6 SCNJ 190 at 206 and Okposin v. Assam (2005) 7 SCNJ 442 at 459. PER MOJEED ADEKUNLE OWOADE, J.C.A.
PARTIES: WHETHER A PARTY IS ALLOWED TO APPROBATE AND REPROBATE AT THE SAME TIME
This is because the law does not allow a party to approbate and reprobate at the same time. For once a party either by his words or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, he cannot question the legality of the act he has sanctioned to the prejudice of those who have given faith to his word. See, Adetoro v. U.B.N. Plc. (2007) All F.W.L.R. (Pt. 396) 590 at 630. PER MOJEED ADEKUNLE OWOADE, J.C.A.
DAMAGES: WHETHER THE AWARD OF BOTH GENERAL DAMAGES AND SPECIAL DAMAGES IF PROVEN IN AN ACTION FOR TRESPASS TO LAND WOULD AMOUNT TO DOUBLE COMPENSATION
The law is settled that the award of both general damages and special damages if proved in an action for trespass to land does not account to double compensation: – UTB Nig. Ltd. V. Ajagbule (2006) 2 NWLR (pt. 965) 447 at 500. PER MOJEED ADEKUNLE OWOADE, J.C.A.
APPEAL: CIRCUMSTANCES WHERE THE COURT OF APPEAL WILL SUBSTITUTE ITS OWN FINDINGS WITH THE FINDINGS OF THE TRIAL JUDGE
The Court of Appeal will not substitute its own findings for the finding of the learned trial Judge who had seen and heard witnesses on a matter except such findings are perverse.
See, Ebba. v. Ogodo (1984) 1 SCNLR 372. Mogaji V. Cadbury Nig. Ltd, (1985) 2 NWLR (Pt. 7) 393, Egonu v. egonu (1978) 11 – 12 SC 111. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
CHIEF OKEY MBANASO Appellant(s)
AND
DAVIDSMITH OFFOR
(By His Attorney Mr. Ifeanyichukwu Onwukwe)
1. CHARLES IKEGWUONU
2. CHUKWUNENYE ELEKWACHI NWAKPUDA
3. MRS. ELIZABETH NWANKPUDA
4. THE REGISTRAR OF DEEDS, LANDS REGISTRY
5. CHUKS OFFOR
6. OKECHUKWU OSISIOGU Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Obisike Oji J. delivered on 29/11/2007 in the Umuahia Judicial Division of the High Court of Abia State.
The Appellant was the 3rd defendant while the 1st Respondent was the plaintiff before the lower court. The 1st Respondent, as plaintiff took out a Writ of Summons against 5 (five defendants) including the Appellant as 3rd defendant and the Registrar of Deeds, Land Registry (Umuahia) as 5th defendant. At a later stage, by order of court, Chuks Offor and Okechukwu Osisiogu were joined as the 6th and 7th defendants respectively in the suit. In the course of trial, it became known that the 2nd defendant is one and the same person as the 6th defendant.
The claims of the 1st Respondent as plaintiff against the defendants at the lower court including the Appellant as 3rd defendant were as follows:
(a) N5M (Five Million Naira) special and general damages from the defendants jointly and severally for trespass into plaintiff’s land known as and called Plot No. UM/IND/12 situate at WORLD BANK HOUSING ESTATE UMUAHIA covered by statutory Certificate of Occupancy registered as No. 72 at page 72 in volume 18 of the Land Registry at Umuahia.
(b) An order canceling any document of transfer of title made between the 2nd defendant and the 1st defendant or any other persons touching and concerning the property described above without the consent and authority of the plaintiff.
(c) An order of perpetual injunction restraining the 5th defendant by herself through her servants and or agents or any officer in her department from registering any TITLE DEED by any name so called made in favour of the 1st defendant or any other person touching and or concerning the said land described above with the consent of the Plaintiff.
(d) An order of perpetual injunction restraining the 1st to 4th defendants jointly and severally by themselves through their servants and or agents from further entry or trespass into the said land shown as Plot No. UM/IND/12 and registered as No. 72 at page 72 in volume 18 of the Land Registry Office at Umuahia.
The 1st Respondent as plaintiff filed a statement of claim dated and filed on 25/5/2004. The Appellant as 3rd defendant in the suit filed a statement of defence dated 7/6/2004 on 14/6/2004. And, Mrs. Elizabeth Nwakpuda, the 4th Respondent on record filed a statement of defence dated 12/7/2004 on 13/7/2004. Pursuant to an order of court made on 26th May 2006, the total pecuniary claim of the plaintiff was reduced from 5 million to N4, 892, 500.00 (Four Million, Eight Hundred and Ninety-Two Thousand, Five Hundred Naira only) and paragraph 19 (d) (e) of the statement of claim was amended to read N12, 000.00 instead of N120, 000.00
The facts of the case revolve around the title to a real property known as Plot No. UM/IND/12 situate at World Bank Housing Estate, Umuahia, Abia State. By certificate of Occupancy dated April 30, 1993 (Exhibit “B”) the Government of Abia State of Nigeria granted the right of occupancy of the property the subject matter of the suit to Peter Chukwuka Nnamdi for a period of 99 (ninety-nine) years commencing on January 1, 1990.
On July 27, 1998, in consideration of the sum of N500, 000.00 paid to him by the 1st Respondent, the said Peter Chukwuka Nnamdi donated an irrevocable Power of Attorney (Exhibit “C”) to the 1st Respondent regarding the unexpired residue of his title in respect of the property and put the 1st Respondent in possession thereof.
The 1st respondent handed over the original title document of the property delivered to him by Peter Chukwuka Nnamdi to the 4th Respondent, Mrs Elizabeth Nwakpuda, his elder sister, for safe keeping and proceeded to construct a building comprising two number three bedroom flat apartments thereon that was at roofing stage as at October 2003.
Sometime in October, 2003 without any authority of the 1st Respondent the Appellant, a legal practitioner, entered the property and began to build thereon. Upon being accosted by agents of the 1st Respondent (who resides in the United States of America) the Appellant claimed that his client, whose name he refused to disclose, had bought the property from the 2nd (16th) and 7th Respondents based on an email Power of Attorney (Exhibit “F”).
According to the Appellant, the 2nd (16th) Respondent had executed a Power of Attorney in favour of his unnamed client, whose name is not on the Power of Attorney as Donee and he (the Appellant had delivered the original title documents of the property that were handed over to him by the 2nd (16th) Respondent (the first son of the 4th Respondent) to a relation of his client whose name he did not disclose.
A complaint was lodged with officers of the Nigeria Police stationed at Umuahia who are still investigating the matter. Meanwhile, the Appellant continued to build the property. Therefore, the 1st Respondent commenced this suit.
At the hearing of the case, two witnesses gave evidence for the 1st Respondent, namely his Attorney, Mr. Ifeanyichukwu Onwukwe, as PW1 and the 4th Respondent, Mrs. Elizabeth Nwakpuda, as PW2. The Appellant, Chief Okey Mbanaso testified as DW1 and called one witness, Mr. Augustine Ikechi Nwaomumu, the Assistant Chief Registrar, High Court Umuahia, who gave evidence as DW2.
At the end of the trial, the learned trial Judge found for the 1st Respondent at pages 109 – 110 of the record as follows:
“It is my finding and I so hold that the evidence of the plaintiff that he is the person in possession of the property known as No. UM/IND/12 situate at World Bank Housing Estate Umuahia whose possession was disturbed by the defendants has not been dislodged by the defendants. And having found that the 3rd defendant has failed to prove that the said property was validly transferred to his “client” this suit succeeds. It is the judgment of this court in this suit that:
1. The 1st to 3rd defendants shall pay, jointly and severally, to the plaintiff the sum of One Million, Nine hundred and Ninety-nine thousand, five hundred Naira (N1, 999,500.00) being special damages for their trespass into the plaintiff’s land known as and called Plot No. UM/IND/12 situate at World Bank Housing Estate, Umuahia, covered by statutory certificate of occupancy registered as No. 72 at page 72 in Volume 18 of the Lands Registry at Umuahia.
2. The 1st to 3rd defendants shall pay the sum of Fifty Thousand Naira (N50, 000.00) being general damages for their trespass into the aforesaid land of the plaintiff.
3. It is hereby ordered that any document of transfer of title made between the 2nd defendant, Chukwunyere Elekwachi Nwakpudo (alias Chuks Offor) and the 1st defendant, Charles Ikegwuonu or any other person(s) touching and concerning the property known as and called Plot No. UM/IND/12 situate at World Bank Housing Estate, Umuahia, is hereby cancelled.
4. The 5th defendant the Registrar of Deeds Land Registry, Umuahia, is hereby restrained by herself through her servants and or agents or any officer in her Department from registering any Title Deed by any name so called made in favour of the 1st defendant: Charles Ikegwuonu or any other person touching and or concerning the said Plot No. UM/IND/12 without the consent of the plaintiff.
5. The 1st – 3rd defendants are hereby restrained by themselves or through their agents and or servants from further entry of trespass into the aforesaid land of the plaintiff.
6. The 1st – 3rd defendants shall pay cost of this suit to the plaintiff assessed at Five thousand Naira (N5, 000.00).”
Dissatisfied with the above judgment the Appellant (who was the 3rd defendant) filed a Notice of Appeal (containing nineteen (19) grounds of appeal) before this court on 31/12/07. Appellant’s brief of argument dated 11/7/08 was filed on 15/7/08. Respondent’s brief of argument dated 14/9/11 was filed on 26/3/12. Appellant’s Reply brief which is undated was filed on 23/3/12.
Learned counsel for the Appellant nominated seven (7) issues from the grounds of appeal filed. I noticed first, that grounds 14 and 15 did not arise from the judgment of the court and indeed that no issues were formulated from any of those grounds. It is trite that a ground of appeal which does not arise from the judgment of the court and/or on which no issues are formulated is liable to be struck out.
Accordingly, grounds 14 and 15 of the Appellant’s Notice of Appeal are struck out.
The seven issues nominated by the Appellant are as follows:
1. Does the respondent have locus standi and/or interest to maintain this action? (This covers Grounds I, II, III and IV of the grounds of appeal).
2. Was the respondent in possession of the property in dispute? (This covers Grounds V and XVII of the grounds of appeal).
3. Did the respondent make out a case for special damages and/or damages? (This covers Grounds VI and VII of the grounds of appeal).
ALTERNATIVELY whether the special and general damages awarded to the respondent in the circumstances of this case does not amount to double compensation. (This covers Ground VII of the grounds of appeal).
4. Whether the Court was right in entering judgment for the respondent without resolving the crucial issue of crime and/or stealing which was the foundation of the respondent’s claim. (This covers Grounds IX and X of the grounds of appeal).
5. Whether the Court was right in rejecting Exhibit “F” as a worthless piece of paper. (This covers Grounds XI, XII and XIX of the grounds of appeal).
6. Was the Court right in linking the appellant to the 1st defendant? (This covers Grounds XIII and XVII of the grounds of appeal).
7. Was the Court right in holding the appellant as agent of an undisclosed principal while at the same holding the 1st defendant as the appellant’s principal? (This covers Ground XVI of the grounds of appeal).
Learned counsel for the respondent raised a preliminary objection on the competency of the appeal and formulated three issues for determination. The issues are:
“1. Whether Grounds I – V, IX, X, XIV, XV, XVII and XVIII of the grounds of appeal are competent.
2. Whether the appellant has in this appeal established any error in the judgment of the trial court to warrant the setting aside of the same.
3. Whether, upon the peculiar facts and circumstances of this case as revealed by the evidence, the respondent is not entitled to consequential orders: (a) directing the appellant to return to respondent forthwith the original title documents to the land that were handed to him by the 2nd defendant, and (b) directing the appellant to render accounts and pay over to the respondent forthwith, all the rents he received from the tenants he put into the respondents said building.”
On the preliminary objection, learned counsel for the respondent submitted that the notice of appeal filed by the Appellant is not against the judgment of any of the courts listed in Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The court whose judgment is said to be appealed against, as stated in the notice of appeal is “High Court, Holden at Umuahia in Umuahia North Local Government Area”. Counsel said, no such court is shown to have been established by the Constitution or any Act of the National Assembly, as prescribed under Section 240 of the 1999 Constitution. He said, the law is trite that the exercise of appellate jurisdiction is purely statutory. The Court of Appeal cannot therefore entertain an appeal from a court which has not been shown to exist or which even if it exists, is not one of those from which an appeal should lie to the Court of Appeal.
Learned counsel for the respondent further submitted that the notice of appeal is also incompetent because the suit, cause or matter the judgment in which is appealed against is not shown in the notice of appeal filed by the appellant herein. An appeal, he says, is a continuation of the particular suit commenced at the lower court that gave the judgment being appealed against. A notice of appeal must therefore clearly identify the particular suit to which it relates. He submitted that the particulars necessary to identify the suit from which this appeal is supposed to have emanated are not contained in this notice of appeal. Counsel referred to the cases of Ikweki v. Ebele (2005) 2 SCNJ 242 at 257 – 258 and Odunze v. Nwosu (2007) FWLR (Pt. 379) 1295 at 1315 and submitted that where a notice of appeal is defective or incompetent in any respect for any reason, there is no valid appeal and the court would have no jurisdiction to deal with the purported appeal but must strike it out.
Learned counsel for the appellant submitted inter alia on the points of objection that the respondent is not in any way misled by the defects if any in the Notice of Appeal. He referred to the cases of Oge V. Ede (1995) 3 NWLR (Pt. 385) 564 at 557, Oloruntoba-Oju & Ors. V. Abdul Raheem (2009) 13 NWLR (Pt. 1157) 83 and E. A. Garuba V. Kwara Investment Company Ltd. & Ors. 21 NSCQR 412 and submitted that where a party understands the complaint and the complaint arises from the decision appealed against, the objection becomes irrelevant.
Truly, the Notice of Appeal in this case did not state that the judgment emanated from the High Court of Abia State. It only states “High Court, holden at Umuahia…” It did not also state the suit No. in the body of the Notice of Appeal although the Suit No. is stated on top of the process before the parties were named. I think the proper approach here is to reiterate that the courts have shifted emphasis from the impregnable reign of technicalities to the anxious concern of the courts to attain substantive justice in these matters.
In the instant case, the Notice of Appeal has given sufficient notice and information to the respondent not only of the court in which the suit emanated from but also of the particular suit on which the appeal was lodged. Furthermore, the notice of appeal gave information on the precise nature of the complaint or grievance which foreshadows or prefigures the issues that are likely to arise in the actual hearing of the appeal.
In such circumstance, the court would not allow technicalities to defect the end of justice. See, Governor of Ekiti State v. Oyewo (2010) 12 NWLR (Pt. 1) 212 at 219, Legga v. Sarhuma (2008) 6 – 7 SC (Pt. 1) 101 at 118.
Undoubtedly, the heydays of technicalities are over, the courts now try as much as possible to see that undue reliance on technicalities is done away with and also to ensure that their principal focus is to do substantial justice between parties to a case regardless of whether there has been strict compliance with rules of court as in the instant case.
See, Surakatu V. Nigerian Housing Development Society Ltd & Anor (1981) 4 SC 26, Falobi v. Falobi (1976) 9 – 10 SC, 1, Dr. Okonjo v. Dr. Odje & Ors. (1985) 10 SC 267, Hyppolite v. Egharevba (1998) 11 NWLR (Pt. 575) 598, Olaseinde v. F.H.A (1999) 9 NWLR (Pt.619) 448, Salami v. Bunginmi & Anor. (1998) 9 NWLR (Pt. 565) 235, Chigbu v. Tonimas (Nig) Ltd. (1999) 3 NWLR (Pt. 593) 115.
In the instant case, the perceived defects in the Appellant’s Notice of Appeal are not fundamental. Respondent’s preliminary objections are overruled and the Notice of Preliminary Objection is accordingly dismissed
On Issue No. 1, learned counsel for the Appellant submitted that the Respondent’s case as pleaded in his statement of claim is that the holder of the statutory certificate of occupancy, one Peter Chukwuka Nnamdi, for valuable consideration transferred his interest over the property the subject matter of this suit to him by executing a Deed of Power of Attorney registered as No. 48 at page 48 in volume 401 of the Lands Registry Office at Umuahia. That, the Respondent further stated that he took possession pending the change of name in the statutory certificate of occupancy. That, in his evidence, the Respondent stated that Peter Chukwuka Nnamdi sold the land to him and executed a power of Attorney in his favour.
Learned counsel for the Appellant submitted that the relationship between the Respondent and the said Peter Chukwuka Nnamdi is that of holder of statutory certificate of occupancy and his Attorney, i.e. principal and agent. The Respondent, being agent of Peter Chukwuka Nnamdi, the principal.
Counsel submitted that the Power of Attorney (Exhibit C) does not confer possessory right on the holder of such Power of Attorney as to enable him maintain an action whether in trespass and/or otherwise in his name. An Attorney is merely an agent of the Donor and cannot act in his name. For instance, said counsel, Exhibit “C” stated in the Habedum and/or body of the Power of Attorney thus:
“…IN MY NAME and on my behalf to do and execute and/or perform all or any of the things following namely…”
Therefore, according to counsel, Exhibit “C” merely authorized the Respondent to carry out all the acts specified from paragraph 1 – 15 in his name and on his behalf.
Thus, the Respondent can only act as agent of the Donor i.e. Peter Chukwuka Nnamdi. The Respondent has no right and/or interest to maintain any action whatsoever in his name and/or claim any right therein.
In response to Issue No. 1, learned counsel for the Respondent submitted that nowhere in his statement of defence did Appellant challenge Respondent’s ownership and possession of the property. That, quite the contrary, Appellant expressly admitted that interest and possession of the land had been transferred to Respondent by the original allottee of the land. That, Respondent at paragraph 4, 5, 6 and 7 of his statement of claim, pleaded this transfer of ownership, interest and possession of the disputed land by the original allottee to himself, and pleaded that he consolidated his possession by building on same. That, Appellant as 3rd defendant expressly admitted these paragraphs at paragraph 14 of his statement of defence.
Learned counsel for the Respondent submitted that it is elementary that a fact can only be in issue if when pleaded by a party, it is denied by his opponent. Conversely, when a fact is not denied, no issue arises therefrom. When an issue does not arise, there is no burden to prove same.
On this, counsel referred to the provision of Section 75 (now 123) of the Evidence Act 2011 and also to cases of Honika Sawmill v. Hoff (1944) 2 S.C.N.J. 86 at 97, Temile V. Awani (2001) 6 S.C.N.J. 190 at 206, and Okposin v. Assam (2005) 7 S.C.N.J. 442 at 459 to say that there is no need to prove an admitted fact. The Respondent, said counsel, had no burden, in view of the admission of same, to prove his ownership and possession of the disputed property beyond Exhibit “C” – which is in fact a surplusage.
Learned counsel for the Respondent further submitted that the Appellant is estopped from raising any issue that seems to challenge Respondent’s title, interest and possession of the disputed property.
That, Appellant by his own vires accepted Respondent’s ownership of the property. He pleaded at paragraph 4 of his statement of defence that he bought the property from 6th and 7th defendants after they showed him a Power of Attorney from Respondent authorizing them to sell the property. That, testifying in court, the Appellant stated that he got from 6th and 7th defendants an e-mail/Power of Attorney from Respondent authorizing 6th defendant to sell the property (pages 56 – 59 of the record).
That, the Appellant tendered Exhibit “F” the purported e-mail/Power of Attorney. Therefore, said counsel, without seeing any other deed of assignment apart from Exhibit C, he accepted Respondent’s ownership and possession of the property, confirmed them to be good enough, and went ahead purportedly to buy same. That, he did not seek out Peter Chukwuka Nnamdi, whom he now contends is Respondent’s “principal” but rather bought from those whom he thought were Respondent’s agents. He asked rhetorically, can he turn round to now deny or denounce respondent’s ownership and possession of the property. He answered the question in the negative.
Learned counsel for the respondent added that it is elementary law that one cannot approbate and reprobate at the same time. That, once a party either by his words or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, he cannot question the legality of the act he has so sanctioned to the prejudice of those who have given faith to his word. Counsel referred to the case of Adetoro V. U.B.N. Plc. (2007) All FWLR (Pt. 396) 590 at 630 and submitted that having accepted and acted on the fact that respondent owned the disputed property, and obtained the benefit of purchasing the property on that belief, Appellant is estopped from challenging respondent’s status with respect to the property.
Learned counsel for the respondent submitted that throughout his pleading and evidence, appellant never challenged respondent’s ownership and possession, nor raised this issue of respondent’s status as an agent of another, nor challenged respondent’s locus standi to institute this action in his own name. The appellant built his case and prosecuted same to conclusion on the basis of respondent’s ownership and possession, but claimed that he has validly bought the property from the respondent. The law, said counsel, is trite that a party cannot be allowed to change his case midstream. That, an appeal is a continuation of the case prosecuted at the trial court and a party cannot conduct his case at the trial stage on a particular set of facts and grounds, then alter same at the appellate stage. He referred to the case of Falomo v. Kitchener (2005) All FWLR (Pt. 284) 397 at 417.
The simple answer to appellant’s issue No. 1 is that the respondent was cloaked with locus standi to maintain the suit on the following set of facts:
1. The respondent secured a Power of Attorney – Exhibit “C’ from Peter Chukwuka Nnamdi the original owner of the property in dispute.
2. Consequent, on the above, the respondent entered the land constructed a building on the land to the roofing stage before the incident of trespass by the appellant and/or his agents.
3. Paragraphs 4, 5, 6 and 7 of the Appellant’s Statement of Defence admit the ownership and possession of the property in dispute lie with respondent.
4. Paragraph 14 of the Appellant’s Statement of Defence further admits the ownership and possession of the property in dispute lie with the respondent by the specific admission of paragraphs 4, 5, 6 and 7 of the Respondent’s Statement of Claim.
5. At the trial of the suit it was common ground between the parties from their evidence that the respondent is the owner of the property in dispute.
6. The position in item (5) stems from the evidence of the appellant which revealed that the appellant also claimed to have purportedly purchased the property in dispute from the respondent.
By the above facts it is clear beyond paradventure that it was not in dispute that the respondent is the owner and had sufficient interest, locus standi to institute the action against the appellant and the 2nd set of respondents. In the instant case the learned trial Judge was absolutely right when he held at pages 104 – 105 of the record as follows:
“The 3rd defendant in his written address has raised the issue of locus standi of the plaintiff to maintain this suit. From the state of pleading in this suit, that is really academic. Paragraph 1 of the statement of claim of the plaintiff is not denied by the 3rd defendant. He merely pleaded that the Attorney was not known to him.
Moreso, as I pointed out, paragraphs 4 – 7 of the statement of claim were admitted by the defendants; even paragraph 2 of the statement of claim as what the 3rd defendant denied is the current ownership of the property by the plaintiff.
As the reliefs show, this case is one on trespass and our law is now settled that a claim for damages for trespass lies at the suit of one in possession or one who is entitled to possession. See Animashaun v. Olojo (1990) 10 SCNJ 43 at 49, Morenikeji v. Adebosin (2003) 4 SCNJ 105.
The 3rd defendant is not in any way contending that Exhibit “C” of the plaintiff is in any way defective. It is my holding Exhibit “C” passed on the plaintiff enough interest over that subject matter of this suit to enable him maintains this suit…”
The above sound expression of the law by the learned trial Judge translates into three related legal concepts any or all of which gives a complete answer to appellant’s issue No. 1. The first is that, that which is admitted needs no further proof. By section 123 of the Evidence Act, 2011, no fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. See also, Honika Sawmill V. Hoff (1994) 2 SCNJ 86 at 97, Temile v. Awani (2001) 6 SCNJ 190 at 206 and Okposin v. Assam (2005) 7 SCNJ 442 at 459.
Relatedly, the appellant is estopped from now contesting the standing of the respondent. This is because the law does not allow a party to approbate and reprobate at the same time. For once a party either by his words or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, he cannot question the legality of the act he has sanctioned to the prejudice of those who have given faith to his word. See, Adetoro v. U.B.N. Plc. (2007) All F.W.L.R. (Pt. 396) 590 at 630.
In the instant case, the Appellant having accepted and acted on the fact that Respondent owned the property in dispute, and purportedly purchased the property on that belief, is estopped and can no longer be heard to be challenging Respondent’s status with respect to the property.
Finally and as rightly pointed out by the learned trial Judge in this case, the locus standi, interest or the right to sue of a person in possession cannot be faulted in an action for trespass. This is because trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed. Trespass to land is therefore actionable at the instance of a person in possession of the land.
See, Ndukuba V. Izundu (2007) 1 NWLR (Pt. 101 6) 432, Okoko v. Dakolo (2006) 14 NWLR (Pt. 1000) 401, Yusuf v. Keinsi (2005) 13 NWLR (Pt. 943) 554, Oyedeji v. Adenle (1993) 9 NWLR (Pt. 316) 224.
Issue No. 1 is resolved against the Appellant.
Appellant’s Issue No. 2 is a variant of Issue No. 1, the answer(s) to Issue No. 1 above covered Issue No. 2, and the said issue is also resolved against the Appellant.
On Issue No. 3, learned counsel for the Appellant submitted that the Respondent in paragraph 9 of his statement of claim pleaded thus:
“As the building being constructed on this land now in dispute by the plaintiff through his agents in Nigeria advanced to the roofing stage, the 1st defendant with the aid of the 2nd and 3rd defendants with their thug and hired workmen, broke into the land without the consent of the plaintiff and destroyed the building already on site and began the construction of theirs.
Learned counsel for the Appellant submitted that paragraph 9 of the Respondent’s statement of claim was denied in paragraph 15 of the Appellant’s statement of defence. That, in spite of this PW1 Ifeanyichukwu Onwukwe gave evidence of things stolen in the building at page 46 of the record amounting to N1, 999.50 in the following terms:
“When the defendant broke into this property with thugs, they stole many things like rods, cement etc…”
On this, learned counsel for the appellant submitted that the evidence led by the Respondent on the issue of special damages and/or damages is at variance with his pleadings and as a result goes to no issue.
He referred to the case of Ngilary V. Mother Cat Ltd. (1999) 13 NWLR (Pt. 636) P. 626. It was further submitted that the Respondent did not plead that any material was stolen from the property in dispute but that building on site was destroyed. That, on the state of pleading what was required of the Respondent was to give particulars of the items destroyed. This is because, it is common knowledge that when a property is destroyed it cannot at the same time be stolen. The need for particularity and strict proof of the special damages becomes crucial when considered against the background of the Respondent’s pleadings that:
“150 lengths of ‘bd rod, 120 lengths of ‘bc rod and 20 rolls of binding wire were destroyed.”
Counsel said, it was for the Respondent to tell the court how the aforesaid items were destroyed. This, he said is more so considering the fact that the Respondent stated in paragraph 3 of Exhibit “H” that it is a bungalow that was being erected. It was for the Respondent to tell the court what the rods were meant for in a bungalow. Again, according to Appellant’s counsel, the need for the Respondent to prove the special damages alleged strictly becomes more pertinent when considered against the background of the Appellant’s denial of any damage to the said building. Rather, the Appellant stated in paragraph 7 of his statement of defence:
“Subsequently the 3rd Defendant was instructed and mobilized to complete the building works to conclusion with tenants now in residence.”
Learned counsel for the Appellant submitted that the character of the acts themselves which produce the damage and the circumstances under which these acts were done must regulate the degree of certainty and particularity with which the damage done ought to be proved. As such, certainty and particularity must be insisted on in proof of damages as is reasonable having regard to the circumstances by which the damage is done.
On this, counsel referred again to the case of Ngilary V. Mother cat (supra). In the instant case, said counsel, the Respondent has not been consistent and/or particular on character of the act which produces the purported damage. Is the Respondent claiming damages from destruction of the building or for purported stealing? Thus, the evidence of the Respondent on the character of the act which produced the damage and the circumstances under which the said acts were done is at variance with his pleadings. He referred on this, to the case of Alhaji Otaru V. Idris & Anor, (1999) 6 NWLR (Pt 606) P. 330.
Learned counsel for the Appellant further submitted that the evidence of PW1 at page 50 of the record is hearsay and ought to be disregarded. That, in any event he did not mention that anything was stolen and at best the evidence shows that only part of the Respondent’s building was destroyed.
Finally, on issue 3, counsel referred to Exhibit “H” a statement of claim in a previous suit on the subject matter between the original owner of the property Peter C. Nnamdi and the same Respondent and argued that paragraph 3 of the said statement of claim in Exhibit “H” did not mention the Appellant as one of those who forcibly broke into and destroyed the building on the land.
It was submitted that this was an admission that the 3rd Respondent cannot now resile from.
On this, counsel referred to the case of Okonkwo v. Kpajie (1992) 2 SCNJ (Pt. 11) P. 290 and urged us to allow the appeal on that ground.
In response to the above, learned counsel for the Respondent submitted that the Respondent pleaded particulars of special damage at paragraph 19 of his statement of claim. That, Appellant only made a general denial of this in paragraph 17 of his statement of defence, without a specific denial of the itemized pleading. That, Respondent led clear, precise and credible evidence of these particulars of special damage when Appellant did not challenge this evidence during cross-examination and also did not utter a word in refusal or contradiction of this evidence.
On the particular area of claim for, and award of damages, learned counsel for the Respondent referred to the decision of the Supreme Court in the case of Calabar East Co-operative v. Ikot (1999) 12 S.C.N.J. 321 at 333 where it was said that:
“By declining to cross-examine on the items of particularized heads of special damages, the inescapable inference was irresistible that the defendants/appellant conceded the items of special damages. Where the head of special damages was neither challenged both in the pleadings and in evidence, nor controverted and the said evidence was supported by pleadings and the evidence by its very nature was credible, even the trial court has no option but to accept and act on it.”
The gravamen of the complaint of the Appellant in issue 3 is that the Respondent’s pleadings and evidence are contradictory in the sense that the Respondent pleaded destruction of building but that he led evidence of stolen items to support his claims for special damages.
The simple answer to the above is that a party only pleads facts and not evidence, but the evidence to be given must be based on facts so pleaded.
In the instant case, the Respondent did not only plead destruction of the building by the Appellant and others but also pleaded that the Appellant and his agents “broke into” the property in dispute.
In the absence of further particulars of the expression, “broke into” the building, the Respondent was justified to give evidence of loss of properties consequent on the actions of the Appellant and his agents. Paragraphs 9 and 10 of the Respondent’s statement of claim reads:
“9. As the building being constructed on this land now in dispute by the plaintiff through His Agents in Nigeria advanced to the roofing stage, the 1st defendant with the aid of the 2nd and 3rd defendants with their thugs and hired workmen, broke into the land, without the consent of the plaintiff and destroyed the building already on site and began the construction of theirs.”
“10. The Plaintiff’s Agent quickly reported these unauthorized acts of the 1st, 2nd and 3rd defendants to the 4th who is also the mother of the 2nd defendant.”
The Respondent itemized particulars of special damages in paragraph 19 of the statement of claim.
In contrast to the above pleadings, the Appellant himself admitted that he was arrested for stealing building etc, and only made a general denial of Respondent’s paragraph 19 which includes the particulars of special damages.
Paragraph 9, 15 and 17 of the 3rd defendant’s statement of defence are revealing.
“9. The 3rd defendant aver that on 22nd and 23rd October 2003 he was “arrested” by the Area Command Umuahia for stealing building etc. copies of the invitation letter, typewritten response and statement under caution together with a handwritten abusive and insulting letter from the plaintiff’s counsel then shall be founded upon at the trial together with the response of the NBA UMUAHIA BRANCH.
Further details of this intimidating experience shall be given at the trial
15. SAVE and except as herein admitted the 3rd defendant denies paragraph 8, 9, 10, 11, 12 and 13 of claim as they pertain to him and put the plaintiff to the strictest of proof thereof. The 3rd defendant further aver that the cement leveling had not been completed prior to the sale and is unaware of any forceful breaking, destruction and or construction of another building thereon. No prior report of breaking was made to the Police but rather the Police were conscripted by the plaintiff to unlawfully harass intimidate and or coerce the 3rd Defendant and or his client to resile from the legitimate purchase when the proceeds inter alia caused a problem. Finally, the 3rd defendant aver that the Police only investigated and included same into a case of stealing building, obtaining money under false pretence and forgery” without finding the 3rd defendant wanting. Full facts of this episode shall be made at the hearing.
17. The 3rd defendant denies paragraph 15, 16, 17, 18 and 19 of the claim as they pertain to him and put the plaintiff to the strictest of proof thereof. Furthermore, the plaintiff is not entitled to his claims as the 3rd defendant and his purchasing client are at worst BONAFIDE PURCHASERS FOR VALUE WITHOUT ANY NOTICE OF FRAUD/CRIME etc. and entitled to enjoy the legitimate acquisition. The 3rd defendant shall at the hearing urge the Hon. Court to dismiss the suit in its entirety as it pertains to him or his client with substantial cost against the plaintiff.”
Based on the above pleadings on the subject by the parties, the PW1 gave evidence at pages 46 – 47 of the record and before listing the items of special damages opened up and said: “when the defendants broke into this property with things they stole many thing like rods, cement etc. The things stolen by them are; …Total is N1,999,50.00”
Truly, as pointed out by the learned counsel for the Respondent the cross-examination of PW1 which spanned through pages 48 – 51 of the record did not make any reference either to denying that any of the items listed were stolen or query any part of the items listed. In those circumstances, the learned counsel for the Respondent was right to have said that when evidence on an issue comes from one side and is unchallenged and uncontroverted by the other side, it ought to be accepted on the principle that there is nothing to be put on the other side of the balance, unless the evidence is of such quality that ne reasonable tribunal should believe it.
In the instant case, the learned trial Judge had no reason not to have accepted and acted on the credible, unchallenged ad uncontroverted evidence of the PW1 on the issue of special damages.
See, Calabar East Co-operative V. Ikot (1999) 12 S.C.N.J 321 at 333, Baba V. Cibil Aviation (1991)7 S.C.N.J (Pt. 1) 1 at 22, Nzeribe v. Dave (1994) 9 S.C.N.J 161 at 171 – 175, Osondu Co. Ltd V. Akhigbe (1999) 7 S.C.N.J. 1 at 16.
I do not have to say that Exhibit “H” mentioned by the Appellant’s counsel in relation to this issue is totally irrelevant to this particular proceeding. The parties in Exhibit “H” are not exactly the same as the parties to this proceeding.
The Appellant’s alternative to issue No. 3 is whether the special and general damages awarded to the Respondent does not amount to double compensation On this leg of issue No. 3, it was submitted for the Appellant that awarding the building in dispute together with the improvements made by the Appellant as well as special damages and/or damages amounted to double compensation. That, the court ought to take judicial notice of the fact that erecting a bungalow up to lintel level pale into significance (sic) when compared to the amount involved in finishing the block work, roofing and the fittings in the said building, that the law frowns at double compensation.
On this, counsel referred to the case of Federal, College of Education Okene v. Joseph N. Anyanwu (1997) 4 NWLR (Pt. 501) P. 533.
With regard to Appellant’s contention that the award of general and special damages amounts to double compensation, Respondent’s counsel contend that the idea is misconceived and wrong. He submitted that trespass is actionable per se once there is unlawful disturbance of possession; the person in possession can sue and be awarded general damages for the trespass without proof of any actual damage to the land.
Counsel referred to the case of Adesanya V. Otuewu (1993) 1 S.C.N.J. 77 at 133 and added, that it is not in dispute that the Appellant went to the Respondent’s possession and that the entry is unauthorized and unlawful.
Learned counsel for the Respondent submitted that the Respondent is entitled to general damages for the unauthorized entry and destruction of his land by the Appellant and equally entitled to special damages on the items removed from the land. Counsel said, those materials were particularized and loss suffered by Respondent. That, Appellant admitted this evidence and this entitled Respondent to another head of damages against the Appellant to compensate for the loss of those items Learned counsel for the Respondent submitted that there are two different unlawful acts of the Appellant, each deserving condemnation by way of award of damages. The law is settled that the award of both general damages and special damages if proved in an action for trespass to land does not account to double compensation: – UTB Nig. Ltd. V. Ajagbule (2006) 2 NWLR (pt. 965) 447 at 500.
As to the award of the house to the Respondent, counsel submitted that the ownership of the house in that land is not at all in dispute; neither did the trial court make any award of the house to any person as there was no such claim in the suit. He added that the law is ‘Quid Quid plantatur solo solo cedit – he who owns the land also owns everything on it’. The Appellant cannot therefore be heard to complain.
Learned counsel for the Respondent further submitted that the appellant has not in any way shown any reason why this honourable Court should interfere with the awards made by the trial court in this case. An Appellate court, he said, will not just interfere with an award of damages made by a trial court, except on well laid down principles.
On this, counsel referred to the case of Sabru Motors Ltd. V. Rajab Ltd. (2002) 4 S.C.N.J. 370 at 382 and 388.
With due respect to the learned counsel for the Appellant in this case, his argument on the second leg of issue 3 is non-sequitor. In the first place, the ownership of the house was not in dispute and the learned trial Judge could not and indeed did not make any award of the building to the Respondent. The claim of the respondent in the court below was for trespass and injunction and the claim was merely granted in terms of damages for trespass and injunction.
Furthermore, the Respondent proved special damages with unchallenged evidence of PW1 and therefore was in addition to the damages for trespass entitled to the head of special damages as claimed.
Truly, and as pointed out by the learned counsel for the Respondent, the law is settled that the award of both general damages and special damages if proved in an action for trespass to land does not amount to double compensation.
In the instant case, the Respondent successfully proved special damages and the learned trial Judge rightly granted damages for trespass and special damages.
See, UJB Nig. Ltd. V. Ajagbule (supra) at 447 – 500.
The two legs of issue No. 3 are decided as against the Appellant.
On issue 4, learned counsel for the Appellant submitted that at page 5 of the record, the Respondent stated that he handed over title document to the property in dispute to the 4th defendant. That, when he discovered that the said property had been broken into, his agent reported the incident to the 4th defendant. That the 4th defendant later announced that her box had been broken into by unknown person. That investigation later revealed that it was the 2nd defendant who stole the said document and the incident was reported to the Police.
That, the Respondent further pleaded in paragraph 14 of his statement of claim that the 2nd defendant made a confessional statement in which he admitted stealing the document. Counsel said the Respondent pleaded that to the police by the 2nd defendant but the statement was not tendered.
Learned counsel for the Appellant submitted that from the state of pleadings the commission of crime is the foundation of the Respondent’s claim. That, it is the Respondent’s case that the 2nd defendant obtained the title documents to the property in dispute by fraudulent means without his consent. That, since the commission of crime is directly in issue in this case, it is incumbent, on the Respondent to prove same beyond reasonable doubt.
On this, counsel referred to the provision of Section 138 (now Section 135 (1) of the Evidence Act 2011) and the case of Olufunmise v. Falana (1990) 3 NWLR (Pt. 136) P. 1.
Learned counsel for the Respondent submitted on this score that the very person said to have stolen the documents and sold to Appellant was sued as 2nd defendant. He chose not to defend the action, thereby offering no challenge to the allegation against him. That, the 4th defendant, the mother of the 2nd defendant filed a statement of defence in which she admitted that her son, 2nd defendant, without Respondent’s consent or authority, took the title documents and sold the property to Appellant.
The Respondent, said counsel, led evidence in proof of his pleadings, firmly establishing that 2nd defendant did not have his consent or authority to sell the property, but rather broke into 4th defendant’s box and stole the title documents with which he sold to Appellant.
Learned counsel for the Respondent further submitted that throughout the cross-examination of PW1, not a single question was put to the witness in challenge of his evidence that 2nd defendant stole the documents and sold the property without Respondent’s consent.
Also, that 4th defendant gave evidence and confirmed that 2nd defendant stole the title deeds from her custody and sold the property without Respondent’s consent or authority.
On this, counsel referred to the case of Sommer V. F.H.A. (1992) 1 S.C.N.J. 162 at 179 and submitted that failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the witness evidence on that particular matter.
Indeed, in deciding issue No. 4, it must be said that in this case, the Appellant accepted the truth of the fact that the 2nd defendant illegally obtained the title deeds of the property, and sold same to him without Respondent’s consent or authority. The fact that the circumstances of the case permit the use of such words as “stole” in alleging the conduct of the 2nd defendant, which he (2nd defendant) tacitly admitted does not mean that allegation of crime was the foundation in the suit between the parties or in the words of Section 135 (1) of the Evidence Act, that the commission of crime was directly in issue in the case.
Indeed, the suit of the respondent against the Appellant and the other defendants is for trespass and injunction and the ingredients of the tort alleged could have been proved with or without the allegation of theft of documents against the 2nd defendant which the 2nd defendant himself did not deny.
I would say in relation to this case and contrary to the suggestion of the learned counsel for the appellant that where allegation of fraud is made in a case where fraud is not directly in issue, the standard of proof must be preponderance of evidence, not on the basis of proof beyond reasonable doubt.
In the case of Micheal Arowolo v. Chief Titus Ifebiyi (2002) F.W.L.R. (Pt. 95) 296 which bears a lot of similarities with the instant case because fraud of title documents was involved, the Supreme Court explained that the fact that a strong language is employed to describe one’s conduct or motive in a transaction as by the use of the word “fraudulently” does not ipso facto convert the basis of the claim to a crime. At page 316 of the report, Iguh JSC who delivered the lead judgment of the court remarked as follows:
“Without doubt, the preponderance of evidence or the balance of probabilities constituted sufficient ground for a verdict in civil cases. This general rule is however subject to the statutory provision in the former Section 137 (1), now Section 138 (1) of the Evidence Act to the effect that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See Benson Ikokwu v. Enoch Oli (1962) 1 All NLR 194. But as I have already observed, fraud was never made the foundation of the Respondent’s case whether from the pleadings or from his evidence before the court. The Respondent in the present case could quite easily prove his case, as indeed he did, without alleging or proving fraud notwithstanding the fact that the adverb “fraudulently” was grammatically used to describe the Appellant’s conduct or motive in the transaction.
I need perhaps add in the above regard that where a strong language is employed to describe one’s conduct or motive in a transaction as was done in the present case by the use of the word ‘fraudulently’, that does not Ipso facto convert the basis of a claim to a crime See Godwin Nwankwere v. Joseph Adewunmi (1967) NMLR 45…”
In the instant case as it was in the case of Arowolo V. Ifabiyi (Supra) the fact that the Respondent used the word “stole” to describe the action or motive of the 2nd defendant in dealing with the documents in question does not Ipso facto render the basis or the foundation of the Respondent’s claim to be crime. The required standard of proof is therefore on the balance of probabilities. See Mogaji V. Odofin (1978) 4 SC. 91. This makes the provision of Section 135 (1) of the Evidence Act inapplicable in the circumstance.
Issue No. 4 is resolved against the Appellant.
The contention of the learned counsel for the appellant on issue No. 5 is that the learned trial Judge was in error in holding that Exhibit “F” is a worthless document. The argument that followed from the learned counsel for the appellant is that from the pleading the Respondent’s contention is that Exhibit ‘F’ is a forgery and thus to impugn Exhibit ‘F’ the Respondent has to prove the forgery beyond reasonable doubt.
In quick answer to Appellant’s issue 5, the Respondent never pleaded that Exhibit ‘F’ was a forgery and the learned trial Judge did not reject Exhibit ‘F’ as a worthless document on the basis of any forgery.
As pointed out by the leaned counsel for the appellant himself, the relevant pleading of the Respondent is paragraph 6 of the statement of claim to wit.
“6. The plaintiff shall at the hearing contend that he never authorized anybody to sell or in any way part with the possession or ownership of the said property now in dispute.”
At pages 106 – 107 of the record, the learned trial Judge observed on Exhibit “F” as follows:
“Exhibit “F” is a photocopy of an E-mail. It is dated Wed, 3rd September 2003 with the time of mailing to be 06: 54: 11 – 0500 (CDT). It is from “Davidsmith at popmail.com and it is addressed to de-kwaches 2002 at yahoo com.
It reads:
“Subject: Power of Attorney
Mr. D.C. Offor
1778 Heather Street
Illinois, Chicago
U.S.A.
POWER OF ATTORNEY
I, Mr. Davismith Chijioke Offor who is presently resident in the U.S.A. of the above address do hereby appoint my younger brother Mr. Chuks Offor the Power to sell my property, an uncompleted building at the World Bank Housing Estate Umuahia, Abia State.
Thanks for your co-operation.
David smith Offor.”
To say the least it is a worthless piece of paper as far as authority to dispose of landed property is concerned. Apart from its not disclosing the property concerned, it is not signed by anybody. Indeed it is surprising that a person like the 3rd defendant, a legal practitioner will see a document like that and accept it as sufficient bases to deal with the property.
In this days of internet fraud what does it take to procure a letter like that, just a visit to an internet service centre, create E-mail address, write a mail with it and send it to yourself. Open the mail and print out a copy! To be able to have dealings with a land to the extent of disposing it off to another person, the 3rd defendant must know that something more serious than Exhibit “F” is required.”
And at page 107, the learned trial Judge made further remarks on Exhibit “F”.
“Apart from the legal short comings of Exhibit “F”, any reasonable lawyer wanting to do a responsible work for his client must know that a document like Exhibit “F” cannot be such as can pass as authority to sell land. If there is anybody who is colluding in this matter, it is the 3rd defendant and his anonymous client, who realizing the shoddiness of their transaction will rather not be disclosed.”
In relation to issue No. 5, the observations and findings of the learned trial Judge that Exhibit “F” is a “worthless piece of paper as far as authority to dispose of landed property is concerned” arose from the evidence adduced in the case and the learned trial Judge was quite justified in coming to that legal conclusion from what he has seen and heard from the evidence of the parties. The Court of Appeal will not substitute its own findings for the finding of the learned trial Judge who had seen and heard witnesses on a matter except such findings are perverse.
See, Ebba. v. Ogodo (1984) 1 SCNLR 372. Mogaji V. Cadbury Nig. Ltd, (1985) 2 NWLR (Pt. 7) 393, Egonu v. egonu (1978) 11 – 12 SC 111.
In relation to Exhibit “F” which is a document, I myself having observed the content of Exhibit “F” at page 16 of record of appeal will join the learned trial Judge for the reasons which he had given to confirm that Exhibit “F” is indeed a worthless piece of paper as far as authority to dispose landed property is concerned.
Issue No. 5 is resolved against the Appellant.
The 6th issue complained that the court was not right in linking the appellant to the 1st defendant and that the learned trial Judge was gravely in error by coming to the conclusion that the Appellant knew the 1st defendant. Again, the conclusion of the learned trial Judge here was simply borne out from evidence. In linking the Appellant to the 1st defendant, the learned trial Judge made inferences from the cross-examination of PW1 by the Appellant which he produced at pages 107 – 108 of the record as follows:
“Put: Charles M. Ikegwuonu surfaced for the 1st time on a letter of invitation by the police signed by the IPO?
Answer: I do not know
Question: You wouldn’t know that the invitation letter of the police was served on me on 22/10/2003 and I responded the same day and denying knowing the 1st defendant.
Answer: I do not know. It is between you and the police.
Put: I was not the person who brought out the name of the 1st defendant.
Answer: You told the police during interrogation by the police that you acted the 1st defendant. That was how I came to know the name.
Put: It was the police invitation letter that told me to bring the 1st defendant?
Answer: that is between you and police.”
Based on the above, I think the learned trial Judge concluded rightly at page 108 of the record that:
“From the above it is clear that the 3rd defendant knew the 1st defendant enough so as to be able to recognize him when he surfaced for the 1st time on a letter of invitation by the police signed by the IPO.
The 3rd defendant knew the 1st defendant enough for the invitation letter to the police to tell him to produce the 1st defendant and he produced him.”
Issue No. 6 is resolved against the appellant.
Issue No. 7 questions the learned trial Judge for holding the Appellant as agent of an undisclosed principal while at the same time holding the 1st defendant as the appellant’s principal.
In answer to Issue No. 7, I would say that the learned trial Judge did not at any time hold the 1st defendant as Appellant’s principal. The holding that Appellant is an agent of an undisclosed principal was based on good legal reasoning. At pages 108 – 109 of the record, the learned trial Judge provided further justification as follows:
“The 1st defendant, and indeed the other defendants, cannot escape liability in this case by hiding. The 3rd defendant, on his part cannot get his “client” to escape liability by shielding him. The 3rd defendant must know that an agent cannot escape liability by failing to disclose his principal. Where an agent fails to disclose his principal, the agent becomes the agent of an undisclosed principal, with all the consequences.
The 3rd defendant has tried to posit that he is a professional merely doing his professional duty. The evidence before this court is that the 3rd defendant is not just a lawyer who was engaged by a client to write an agreement for him. The 3rd defendant has shown that he is the agent of the buyer, his client, in all matters pertaining to this land transaction. He was one of those who scouted for a buyer. He was the person retained by his “client” to purchase the land. He was the person who received the money from his “client” and paid to the 6th and 7th defendants.
Indeed, he helped the 6th and 7th defendants to open the bank account into which he paid the money. He was the person who continued the erection of the building on the land in dispute for his “client”, he was the person who put tenants in the building. He was the person who refused to disclose his “client”. He is the agent of an undisclosed principal.”
Issue No. 7 is resolved against the Appellant.
Having resolved the seven (7) issues in this appeal against the Appellant, the appeal lacks merit and it is dismissed.
The Judgment of the lower court is affirmed.
There shall be costs of N50, 000 awarded to the 1st Respondent as against the Appellant.
UWANI MUSA ABBA-AJI, J.C.A. (PRESIDING): I read in advance the lead judgment of my learned brother, M. A. Owoade, JCA, just delivered.
I agree entirely with the reasoning and conclusion therein reached by my learned brother that the appeal is unmeritorious and I adopt his reasoning and conclusion as mine, I have nothing more to add. I also dismiss the appeal and abide the consequential order as to costs.
HARUNA M. TSAMMANI, J.C.A.: My learned brother; M. A. Owoade, JCA, afforded me the opportunity to read in advance the Judgment just delivered by him.
My learned brother has admirably summarized the facts and delved into the issues in contention in this appeal. He has also adequately, in my view, resolved same. I therefore agree with his reasoning and conclusions therein. I adopt same as mine.
Consequently, I agree that the appeal lacks merit. It is hereby dismissed.
I abide by the order on costs.
Appearances
A. C. Chioma, Esq.For Appellant
AND
Chidi B. Nworka, Esq., with A. C. Ananukwa, Esq.For Respondent
