PETER ENAHORO v. O’CERONS LIMITED & ORS
(2014)LCN/7713(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of May, 2014
CA/L/795/2009
RATIO
EVIDENCE: ADMISSION AGAINST INTEREST; WHEN CAN AN ADMISSION AGAINST INTEREST BE VALID IN FAVOR OF THE ADVERSE PARTY
In ODUTOLA V PAPERSACK NIGERIA LIMITED (2007) 1 MJSC 129 @ 142 the Supreme Court per Nikki Tobi JSC, held that an admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court, it must also vindicate and reflect the legal position. per. CHINWE EUGENIA IYIZOBA, J.C.A.
PRACTICE AND PROCEDURE: THE DOCTRINE OF ESTOPPEL; WHEN DOES THE DOCTRINE OF ESTOPPEL BY CONDUCT OPERATE AND APPLY
“The doctrine of estoppel by conduct operates and applies when;
(a) If a man by his words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false, and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such state of things does not exist at the time.
(b) If a man either in express terms or by conduct makes a representation to another of the existence of a state of facts, which he intends to be acted upon in a certain way in the belief of the existence of such state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.
(c) If a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation and facts and the later was intended to act upon it as in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying the facts as represented.
See OLALEKAN V. WEMA BANK PLC (2006) 12 NWLR Pt.998 PG 617 and JOE IGA & ORS V. EZEKIEL AMAKIRI & ORS (1976) 11.
I have carefully reviewed the pleadings, evidence led and case law on the matter of estoppel by conduct, I am satisfied that the learned trial Judge is right in his conclusion that it applies here.
In the case of Okonkwo v. Kpajie (1992) 2 NWLR (Pt.226) 633 @ 655, D-G, Nnaemeka Agu JSC (of blessed memory) observed:
“The law will not permit a party to blow hot and cold as it suits him. What the Court of Appeal pointed out was simply that in suit No.0/122/62, Exh. B, the appellants stated that they were not contesting title over the land in dispute with the respondents. Again in consolidated suits Nos. 0/24/56 and 0/12/57 they adopted the same course: they again asserted that they were not contesting the title to the land in dispute now being claimed by the respondents, and the respondents took them for their word. If this time around they now want to change and claim that title, they will be bared from so doing. This is estoppel by conduct – by matter in pais. Where a man by word or conduct willfully made a representation of a state of fact to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his words and acted upon that representation, then that person who made the representation either himself or his representative in interest cannot now turn around to say or behave as if the state of things were not as he represented them. He is estopped from asserting the contrary. See section 150 of the Evidence Act; also Joe Iga & Ors v. Ezekiel Amakiri & Ors (1976) 11 SC. 1. 12-13. All that is required in such a case is that the facts to be relied upon as estoppel be duly pleaded or brought to the notice of the adjudicating tribunal in some appropriate way, such as has been done in paragraph 16 of the statement of defence in this case; see Sanders v. Sanders (1952) 1 All E.R. 767.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
Before Their Lordships
AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
Between
PETER ENAHORO
(Suing by his attorney-in-fact MR. CHRISTIAN ENAHORO)Appellant(s)
AND
1. O’CERONS LIMITED
2. ANDREW ENAHORO
3. PETER ENAHORO
4. HELENA ENAHORO
(For themselves and as beneficiaries of the estate of the late Mrs. Cassimera Aderemi Enahoro.)Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of Oshodi J. of the High Court of Lagos State Ikeja Judicial Division, in Suit No ID/486/07 delivered on 31st day of March 2009 wherein his Lordship dismissed the appellant’s claim for possession and damages against the 1st Respondent in respect of the disputed property on the ground that the appellant is estopped from claiming ownership of the property having earlier relinquished ownership to his deceased ex wife as he indicated in Exhibit H, his letter to his daughter, the 4th Respondent.
The Appellant’s case is that in 1962 he was allocated a plot of land described as Plot 5 Block 19, Extension to Shomolu Scheme, Ikeja now known as No. 4 Sylvia Crescent Anthony Village, Lagos, by the defunct Ikeja Planning Authority. He built a two-storey house and boy’s quarters on the land and moved into the property with his wife and family sometime in December, 1962. The Appellant lived on the property with his family until sometime in 1966 when he was allegedly forced into self-exile, after armed soldiers came looking for him during the crises that led to the Nigerian Civil War. While in exile, his wife, Cassimera Aderemi Enahoro, and children, the 2nd – 4th Respondents continued to stay in the property. In the course of his life in exile, the Appellant’s marriage broke down, leading to a divorce. The Appellant claimed that his divorced wife, and children, subsequently moved out of the disputed property, and the same was rented out to the knowledge and consent of the Appellant who had agreed that the rents be kept by his former wife in lieu of alimony. The Appellant claimed that on the death of his ex-wife in 2004, the property was temporarily occupied by some of her relatives, to the knowledge of the Appellant. They subsequently vacated the property leaving it unoccupied. The Appellant further claimed he found out through his brother and Attorney-in-Fact that his house was unlawfully occupied by the 1st Respondent, who was running a Guest House on the premises. The Appellant caused statutory notices to be served on the 1st Respondent for the recovery of the premises. Upon the refusal of the 1st Respondent to vacate the premises, the Appellant caused a writ of summons to issue against him for possession and damages. On the application of the 2nd – 4th Respondents, the appellant’s children by his ex wife, they were joined as Defendants in the suit.
The 1st Respondent’s case is that he is a tenant in the property in dispute and that he was put in possession by the 2nd – 4th Respondents in their capacity as the beneficiaries of the Estate of late Mrs. Cassimera Aderemi Enahoro, the late owner of the property.
The 2nd – 4th Respondents’ case is that the property was the joint property of their mother the late Mrs Cassimera Aderemi Enahoro and their father the Appellant; that the late Mrs Cassimera Aderemi Enahoro later became the exclusive owner of the property and that by virtue thereof the 2nd- 4th Respondents were entitled to let out the property to the 1st Respondent. They claimed that the Appellant by his letter dated 4th March, 1998 addressed to the 4th Respondent and later admitted in evidence as Exhibit ‘H’ renounced ownership of the property in dispute in favour of their mother, the late Mrs Cassimera Aderemi Enahoro. They relied also on the various acts of ownership exercised by their late mother over the years in respect of the property and the fact that for over 41 years the Appellant, knowing that their late mother and they had exercised exclusive rights of ownership over the property took no steps to reverse the situation. He must therefore be deemed to have acquiesced in their ownership of the property.
Issues were joined on the contested facts, and after trial, the Appellant’s claim was dismissed on the ground that he was estopped from claiming ownership of the property, having relinquished his interest in the property to his ex wife. Dissatisfied with the judgment, the Appellant appealed to this Court by a Notice of Appeal containing 3 (three) grounds of appeal out of which he distilled three issues for determination. The issues are:
(1) Whether from the factual circumstances of this case, an estoppel was created, and was subsisting, barring the Appellant from claiming possession of the contested property against the 2nd – 4th Respondents.
(2) Whether the 2nd – 4th Respondents as 2nd – 4th Defendants at the Lower court discharged the burden on them to prove that the contested property was jointly owned by the Appellant and their mother, late Mrs. Cassimera Aderemi Enahoro.
(3) Whether the trial court was right in inferring that the control of the disputed property by the former Mrs. Enahoro, and the application by the Appellant, after her death, for the revalidation of his title deed to the property indicated the he had parted with ownership of the property.
The 1st Respondent in his brief of argument identified a sole issue for determination thus:
“Whether the learned trial judge was right in holding that the Appellant was estopped from claiming ownership of the property in dispute having shown that the property belonged to his estranged late wife who was in control and possession of the property until her death”.
The 2nd 4th Respondents in their brief also distilled a sole issue for determination:
Whether from the circumstances of this matter, the lower court was right to hold that Appellant was stopped from seeking to regain possession of the property from the 2nd – 4th Respondent.
The Appellant’s issue 1 is same as the sole issues formulated by the 1st Respondent and the 2nd – 4th Respondents. His issue 2 is the subject of a preliminary objection which I shall now consider.
PRELIMINARY OBJECTION:
The 1st Respondent had filed a notice of preliminary objection against ground 2 of the Appellant’s grounds of appeal and issue 2 formulated therefrom. The objection was argued in the 1st Respondent’s brief of argument. The contention of the 1st Respondent is that the said ground 2 and the appellant’s issue 2 did not arise from any decision or finding of the lower court in the judgment appealed against.
Learned counsel submitted relying on several cases including the case of Ado Coker v. U.B.A. Plc (1997) 2 NWLR (pt.490) 641 @ 664 that it is trite that an appeal lies only against a ratio in a judgment and not against every statement of a judge contained in a judgment. Counsel submitted that a calm view of the portion of judgment complained of in ground 2 of the Notice of Appeal forming the basis of the Appellant’s Issue 2 will show that it was a mere summation of facts and, evidence by the learned trial judge, not a finding of fact. Counsel submitted that ground 2 of the Notice of Appeal is not a complaint against any ratio in the judgment of the lower court. He urged us to hold that ground 2 and issue 2 distilled therefrom are incompetent and to discountenance all arguments proffered by learned counsel for the Appellant on the issue.
In reply the Appellant submitted that it is trite that an issue of fact arises when a fact is maintained by one party in a suit and controverted by the other party in their pleadings. He submitted that the 2nd – 4th Respondents alleged that the property in dispute was jointly owned by the Appellant and his ex wife. This fact was controverted by the Appellant in his reply to the 2nd – 4th Appellant Statement of Defence. Counsel contended that the issue was not resolved in the judgment one way or the other. Rather the learned trial Judge adopted the position of the 2nd to 4th Respondents in their pleadings and evidence. This counsel contended gave rise to the challenge by the Appellant under ground 2 of his Notice of Appeal and issue 2 of his brief of argument. Counsel submitted that when an issue is properly raised and canvassed before a trial court, it must be resolved one way or the other to avoid a miscarriage of justice. He cited the case of EGHAREVA VS. OSAGIE (2009) 18 NWLR (Pt.1173) 299 @ 310 – 311 H-A.
Counsel submitted that there was no evidence before the trial Court to support the pleadings of the 2nd – 4thRespondents that the property in dispute was held in joint ownership. Counsel further submitted that the argument of 1st Respondent that Ground 2 of the Notice of Appeal and issue 2 of the appellant’s brief of argument are incompetent is misconceived. He contended that the issue of joint ownership was a necessary part of the final decision on who owns the property. He submitted that the trial court wrongly concluded that the issue of joint ownership is undisputed. He insisted that the ground of appeal is competent and urged us to dismiss the preliminary objection.
RESOLUTION:
Ground 2 of the Notice of appeal and its particulars read as follows:
“The learned trial judge came to a wrong conclusion on the facts when he stated as follows at page 8 of the judgment.
“It is also clear that the Defendant in his evidence and by paragraph 3 of their statement of defence stated and pleaded that the property was held in joint ownership, that is, between his father, the Claimant, and mother before the Claimant relinquished his interest in the property. It is also not in dispute that before the demise of the estranged wife of the claimant, she resided on the property and dealt with it by letting it out. The foregoing undisputed facts as recounted above were also identified as undisputed by learned counsel for the Defendants in their respective written addresses.”
PARTICULARS OF ERROR
(a) The issue of joint ownership of the property was clearly put in dispute by the Claimant who denied such and called on the Defendants to prove the averment.
(b) The Defendants did not call or tender any material evidence, apart from the ipsi dixit of the 2nd Defendant, to prove joint ownership.
(c) The learned trial judge with due respect, appeared to equate the pleading and written addresses of Counsel, with evidence required to prove a material fact.”
From the facts as shown in the ground and particulars set out above, it does appear that the learned trial Judge did assume, wrongly I would say, that the issue of joint ownership was undisputed. The last sentence of his Lordship “The foregoing undisputed facts as recounted above were also identified as undisputed by learned counsel for the Defendants in their respective written addresses” support the above view. But again, the learned trial judge would appear to have also taken as undisputed the fact that the Appellant originally owned the property. In his judgment at page 345 of the Record of appeal, his lordship observed:
“Having stated some principles of the law I think it will be prudent at this point to observe and state that from the evidence of the witnesses recounted above and also from the pleadings filed, it cannot be disputed that the Claimant became possessed of a parcel of land described as plot 5, Block 19 Extension to Somolu Scheme, now known and referred to as No. 4 Sylvia Crescent, Anthony Village, Lagos sometime in 1962. It is also not in dispute that the Claimant erected a building on the land…”
It will then appear that the learned trial Judge did not actually intend to reach any conclusion by the statements but was merely though misguidedly his concept of the pleadings of the summing up parties. The question however is whether the statement complained about in ground 2 is part of the ratio of the judgment or mere obiter. The appellant in his brief quoted Ogundare J.S.C. in Ado Coker v. UBA (supra):
“Ground (iv)
An appeal is usually against a ratio and not normally against obiter except in cases where the obiter is so clearly linked with the ratio as to be deemed to have radically influenced the later. But even there, the appeal is against the ratio. See Saude v. Abdullahi (1989)4 NWLR (Pt.116) 387 at 431. What is complained of in this ground is a chance remark made by Pats-Acholonu J.C.A. It does not in any way attach to the issue in the appeal before the Court below. This ground to my mind is incompetent”.
Learned counsel for the Appellant had contended that the issue of joint ownership was a necessary part of the final decision on who owns the property. With due respect, I do not think that is the case. For one, the case proceeded as if there was no real dispute as to whether the appellant originally owned the property. The real issue it appeared was whether the appellant relinquished his ownership of the property to his ex wife such that he cannot now turn round to claim possession and damages from a tenant in the property. In all of this, it must be borne in mind that the suit before the court is not a claim for title to the property but a mere claim for possession and damages against the 1st Respondent. What then is the ratio decidendi of this suit? In Afro-Continental Nigeria Ltd v. Ayantuyi (1995) 9 NWLR (Pt.420) 411 the Supreme Court, per Iguh JSC observed:
“It is indisputable that in the judgment of a court, the legal principle formulated by that court which is necessary in the determination of the issues raised in the case, that is to say, the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta, that is to say, what is not necessary for the decision. See Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; Bamgboye v. University of Ilorin (1991) 1 NWLR (Pt.207) 1 @ 24.”
The attitude of the learned trial Judge, I think, is that whether or not the property was exclusively owned by the Appellant or jointly with his ex wife was of no relevance in the determination of the issue, whether by his statements in Exhibit H, the appellant relinquished all his rights in the property to his ex wife. In his judgment at page 345 of the Record, the learned trial Judge observed:
“The pertinent issue for determination, in the Court’s opinion, taking the peculiar facts of this case and the evidence laid before the Court by parties, is who is the actual owner of the property described as plot 5, Block 19 Extension to Somolu Scheme, now known and referred to as No. 4 Sylvia Crescent, Anthony Village, Lagos. Is it the Claimant or the estate of the late Mrs C. A. Enahoro or both of them? This sole issue covers the issues raised by the Claimant and the Defendants in their respective written address.
The reason why this issue is pertinent is that in resolving this issue one way or the other, the claims before the court may then be entertained. If the Court, resolves in favour of the Claimant, then the claims are live for adjudication, but if the Court resolves against the Claimant, the claims will have no foundation to rest upon.”
It is clear from the above remarks that the issue of joint ownership had indeed not been resolved. In other words, in the mind of the judge it is not an undisputed fact as he initially indicated in his ‘summing up’ of the evidence of the parties. It is also clear from the remarks that the issue was not given any pride of place. The issue was whether the property belonged to the Claimant/appellant or to the estate of the deceased Mrs Enahoro. If it belonged to the Claimant, then the basis for his claim for possession would have been established; but if ownership had passed on to Mrs. Enahoro, then there is no basis for further adjudication of the Claimant’s claim for possession. The issue of joint ownership is consequently not linked to the ratio of the case as to be deemed to have radically influenced it. I am of the view that the failure of the trial Judge to resolve the issue of joint ownership of the property has no bearing whatever on the raison d’etre of the court’s decision. That ground of appeal does not arise from the judgment of the court and is incompetent.
The preliminary objection consequently succeeds. Ground 2 and issue 2 formulated therefrom are hereby struck out.
ISSUE 1:
Whether from the factual circumstances of this case, an estoppel was created, and was subsisting, barring the Appellant from claiming possession of the contested property against the 2nd – 4th Respondents.
APPELLANT’S ARGUMENTS:
Learned counsel for the appellant on this primary issue referred to the conclusion of the learned trial judge that the Claimant was estopped from claiming ownership of the contested property, having relinquished his interest in the property as stated in Exhibit H and submitted that Estoppel is an equitable doctrine of English law, which evolved to prevent a person from relying upon certain rights, or upon a set of facts which is different from an earlier set of facts. Counsel submitted that the equitable premise of this doctrine is that where a person has made representations to another as to a state of affairs, and that other person, relying on such representation alters his position to his detriment, the court will find it unconscionable to allow the person who made the representation to rescind his representation. Counsel went into detailed analysis of the origin and concept of estoppel and concluded that the form of estoppel relied on by the lower court in this case is Promissory Estoppel/Proprietary Estoppel. He analysed the conditions for this kind of estoppel to arise. He contended that Mrs. C. A. Enahoro acquired her interest in the property after the divorce from the Appellant’s obligation to pay alimony and that such interest would have lapsed upon her death, as the obligation to pay alimony cannot in law be maintained after the death of the payee. Counsel submitted that at the end of the extract from Exhibit H relied on by the Respondents as creating an estoppel, the Appellant stated as follows:
“…In return I never wish to hear about my cruelty, my selfishness, etc, etc…”
He argued that the Appellant’s promise to relinquish his interest in the property was conditional upon Mrs. Enahoro refraining from accusing the Appellant of cruelty and selfishness, etc and that there is no evidence that she did in fact meet her own side of the bargain. Counsel submitted that there is no averment of fact in the pleadings of the 2nd – 4th Respondents at the lower court, nor is there any scrap of evidence led to suggest that the late Mrs. Enahoro had stopped complaining about her husband. He contended that the late Mrs. Enahoro was not shown to have suffered any detriment whatsoever as a result of shifting her position in reliance on the promise purportedly made to her by the Appellant. Counsel concluded that the second condition for the application of the doctrine of proprietary estoppel was not met in this case. Learned counsel finally submitted that the lower court erred in law, and came to a wrong conclusion on the facts of this case in holding that the Appellant was stopped from maintaining a claim for possession of the disputed property against the Respondents. He urged the Court to allow the appeal on this ground.
1ST RESPONDENT’S ARGUMENTS:
Learned counsel for the 1st Respondent referred to page 347 of the record of Appeal where the learned trial judge held as follows:
“In the instant case and following from above (item b), the Claimant is estopped from claiming the ownership of the property in dispute after having intended, as shown in Exhibit “H” that it belongs to his exchange (sic) wife, who is now dead. He used the words “belongs to her” in his letter, exhibit “H”, which per the New Webster’s Dictionary means “to be a possession of” and went further to state that he was not “under-generous” in his action”.
Counsel submitted that by the above observation, the learned trial Judge specifically found the action of the Appellant to amount to estoppel by conduct. This was his conclusion after he had considered the import of “Exhibit H” admitted at trial in evidence through the Claimant’s sole witness while under cross-examination. Counsel submitted that the Appellant did not appeal against this specific finding of the lower court. Exhibit ‘H’ was written by the Claimant himself to the 4th Respondent. In Exhibit H, the Claimant unequivocally said that he had given up all his claims in the property the subject matter of this action, to his former wife, and clearly stated that “all of it belongs to her”. After a thorough examination of Exhibit H, the learned trial judge held that the Claimant is bound by the doctrine of estoppel by conduct. Counsel submitted that Estoppel by conduct as a variant of the general equitable doctrine of estoppel operates where a person by his conduct or declaration intentionally makes another person to believe in the existence of a set of facts and to act on such belief. The person who made the other to believe in the existence of the said facts cannot be allowed to deny the existence of the said set of facts.
Counsel referred to the case of Amavo Ltd. v. B.T.M. Ltd (1991) 8 NWLR (Pt.207) 37 @ 49 where Salami J.C.A (as he then was) held as follows:
“The principle governing or the meaning of estoppel by conduct is clearly laid down in Morgate Mercantile Limited v. Twitching (1915) 3 ALL E.R. 314 at 324 as follows:- The principle upon which estoppels in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt for the purpose of their legal relations”. See also Tika-Tore Press Limited v. Ajibade Aina (1973) 1 ALL N.L.R. (Pt.11) 244″.
Counsel also referred to Anaeze v. Nyaso (1993) 5 NWLR (Pt.291) 1 @ 33 where the Supreme Court of Nigeria per Karibi-Whyte, J.S.C. held:
“It is a well settled principle of the English Common Law applicable in the country that where a person by his conduct represented to another of the existence of a state of affairs and has induced such other person to act in reliance thereof, he will be bound by the fair inference to be drawn from his word or conduct”.
Counsel submitted that the learned trial judge was right and justified in his conclusion that the Claimant/Appellant is estopped in the circumstances from claiming ownership of the property the subject matter of this action having as far back as 1988 informed the 4th Defendant vide Exhibit H that he had long ago informed his late ex-wife that he had relinquished all interest whatsoever in the subject matter of this action to her. The said ex-wife having lived and died on the property, exercising all powers of an owner over same, the Claimant is estopped from asserting any ownership rights over the property. He cannot approbate and reprobate. Counsel submitted that in attacking the finding of the learned trial Judge, Appellant’s Counsel laboured under the misconception that the trial Judge had relied on the principle of “Promissory Estoppel/Proprietary Estoppel”, Counsel submitted that that is far from the truth. Counsel submitted that as the lower court based its judgment on the doctrine of estoppel by conduct, and not on promissory estoppel, or proprietary estoppel, all the arguments and submissions of the Appellant’s Counsel attacking the findings of the lower Court on the basis of non compliance with the requisite principles of the doctrines of Promissory estoppel and proprietary estoppel, are totally misconceived and irrelevant. He further submitted that as the Appellant did not appeal against the specific finding of the lower court on the application of the doctrine of estoppel by conduct in this case, that finding subsists and remain binding on the Appellant.
Counsel submitted that the gamut of submissions of learned Counsel to the Appellant and the authorities cited are totally irrelevant and inapplicable to this case as they are based on principles not relied upon by the lower Court. He urged us to resolve the issue in their favour and to dismiss this appeal.
2ND – 4TH RESPONDENTS’ ARGUMENTS:
Learned counsel for the 2nd 4th Respondents, after a review of the evidence led before the learned trial judge at page 346 of the records submitted that this court has to decide whether the statement made by the Appellant in exhibit H constitutes an estoppel in law. Counsel reproduced the relevant portion of exhibit H as set out at page 223 of the Record and submitted that the expression “estoppel” is generally regarded as operating when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, and where or when this occurs, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing. – Section 151 Evidence Act.
Counsel submitted that in the instant case, even the Appellant would not deny that his conduct (as demonstrated in exhibit H) led the 2nd – 4th Respondents to believe that No. 4 Slyvia Crescent, Anthony Village, Lagos belonged to their late mother.
Learned counsel referred to the circumstances when estoppel by conduct is applicable as espoused by the learned trial judge in his judgment at page 347 of the Record and submitted that it is clear that the court relied upon estoppel by conduct in arriving at its conclusion to dismiss the Appellant’s claim and not upon promissory/proprietary estoppels as argued by the Appellant. Counsel submitted that by Exhibit H, the Appellant did not indicate a promise to give the property to his ex wife but had actually given it to her and was merely now informing the 4th Respondent in Exhibit H of what had transpired. Counsel urged the court to resolve the issue in favour of the 2nd – 4th Respondents.
RESOLUTION:
The issue here is whether the Respondents can rely on the doctrine of estoppel to defeat the Appellant in his claim for possession and damages over the land in dispute. The learned trial Judge came to the conclusion that the respondents can rely on the doctrine. In his judgment at page 346 of the record, the learned trial Judge held:
“During cross-examination, Exhibit “H” was tendered through the Claimant’s witness, Exhibit “H” was made on 4 March 1998 by the Claimant, and it is a letter written by the Claimant to the 4th Defendant. In this letter on the last page, 1st paragraph thereof, the Claimant wrote as follows:
‘I was quite fed up with always being misrepresented and so instructed a solicitor to write to the tenants at Anthony Village to tell them that henceforth they should pay to my nominee. I had no intention of utilizing the money for myself. I was going to instruct the solicitors to pay a given amount regularly to you (sic) mother, to show that money from my resources was reaching her. I eventually abandoned this strategy when she next complained that I wanted to deny her the money altogether. In frustration, I wrote to her saying that I was relinguishing all claims to the house and all its benefits would henceforth accrue to her for good. In return I never again wished to hear about my cruelty, my selfishness ‘etc etc. I do not know how much the house is worth today. All of it belongs to her. For a marriage that in reality lasted under six years (if you count a controversial six-month sojourn in the US) I don’t think I have been under-generous!’
From the contents of this paragraph of exhibit “H” reproduced above, two things are clear. The 1st being that the Claimant had an interest in the property in dispute. The 2nd being that the contents of this reproduced Paragraph is an admission by a party against his interest which is admissible against him and the court will rely on it for the determination of the issue posed above.
In ODUTOLA V PAPERSACK NIGERIA LIMITED (2007) 1 MJSC 129 @ 142 the Supreme Court per Nikki Tobi JSC, held that an admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court, it must also vindicate and reflect the legal position.
“By exhibit H written by the Claimant himself, he stated that he had written his late estrange (sic) wife to inform her that he was relinquishing all claims to the house and all its benefits will henceforth accrue to his late estrange wife for good. In the same letter, the Claimant re-emphasized by writing “all of it belongs to her”.
The Claimant having taken this position as far back as in 1988 cannot be heard to maintain any other position that is contrary to his position as contained in the portion of exhibit H reproduced above. In effect he is stopped from canvassing another position from what the content of exhibit H prove. The 2nd – 4th Defendants in paragraph 17 of their joint statement of defence did plead estoppel.
An estoppel is an admission; or something which the law treats as equivalent to an admission, of an extremely high and conclusive nature, so high and so conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.
“The doctrine of estoppel by conduct operates and applies when;
(a) If a man by his words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false, and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such state of things does not exist at the time.
(b) If a man either in express terms or by conduct makes a representation to another of the existence of a state of facts, which he intends to be acted upon in a certain way in the belief of the existence of such state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.
(c) If a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation and facts and the later was intended to act upon it as in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying the facts as represented.
See OLALEKAN V. WEMA BANK PLC (2006) 12 NWLR Pt.998 PG 617 and JOE IGA & ORS V. EZEKIEL AMAKIRI & ORS (1976) 11.
I have carefully reviewed the pleadings, evidence led and case law on the matter of estoppel by conduct, I am satisfied that the learned trial Judge is right in his conclusion that it applies here.
In the case of Okonkwo v. Kpajie (1992) 2 NWLR (Pt.226) 633 @ 655, D-G, Nnaemeka Agu JSC (of blessed memory) observed:
“The law will not permit a party to blow hot and cold as it suits him. What the Court of Appeal pointed out was simply that in suit No.0/122/62, Exh. B, the appellants stated that they were not contesting title over the land in dispute with the respondents. Again in consolidated suits Nos. 0/24/56 and 0/12/57 they adopted the same course: they again asserted that they were not contesting the title to the land in dispute now being claimed by the respondents, and the respondents took them for their word. If this time around they now want to change and claim that title, they will be bared from so doing. This is estoppel by conduct – by matter in pais. Where a man by word or conduct willfully made a representation of a state of fact to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his words and acted upon that representation, then that person who made the representation either himself or his representative in interest cannot now turn around to say or behave as if the state of things were not as he represented them. He is estopped from asserting the contrary. See section 150 of the Evidence Act; also Joe Iga & Ors v. Ezekiel Amakiri & Ors (1976) 11 SC. 1. 12-13. All that is required in such a case is that the facts to be relied upon as estoppel be duly pleaded or brought to the notice of the adjudicating tribunal in some appropriate way, such as has been done in paragraph 16 of the statement of defence in this case; see Sanders v. Sanders (1952) 1 All E.R. 767.”
It is clear from the admissions of the Appellant in Exhibit H that he did write to his ex-wife albeit “in frustration” relinquishing all claims to the house and indicating that all its benefits would henceforth accrue to her for good. He further asserted that he did not know how much the house was worth then but that all of it belonged to her. He also indicated that for a marriage that in reality lasted under six years, he didn’t think he had been under-generous. What more evidence is needed to confirm that the intention was to make an outright gift of the property to her? There was no indication that it was just for her lifetime only. Given that the 2nd – 4th Respondents are the children of the appellant by his ex-wife who lived in the property with her at various times and who witnessed their mother in complete control of the property, letting it out to tenants and paying all the rates and other charges and generally dealing with the property throughout her lifetime as her property without any interference whatever from the appellant, the appellant surely cannot now on her death go back on his words and attempt to recover possession of the property. He had in express terms and by his conduct and action led his deceased ex-wife to believe that he had left that particular property to her for good. She acted upon it throughout her lifetime to her detriment (keeping the property in repair and generally paying all the outgoings) in the belief that the property was hers, the learned trial Judge was right in holding that the appellant is estopped from denying the existence of those state of facts. As observed by Nnaemeka Agu JSC in Okonkwo v. Kpajie [1992] 2 NWLR (Pt.226) 633 @ 655, D-G, all that is required in such a case is that the facts to be relied upon as estoppel be duly pleaded. The facts were duly pleaded by the 2nd – 4th Respondents in paragraphs 9 – 17 of their joint statement of defence at page 204 – 205 of the Record.
Learned counsel for the appellant in his brief asserted that the form of estoppel relied on by the lower court is Promissory/Proprietary Estoppel. This was contrary to the clear indication by the trial Judge in his judgment at page 347 that what is applicable is the doctrine of estoppel by conduct.
In spite of that indication, the Appellant chose not to address the issue but dwelt at length on the incidence of Promissory/Proprietary Estoppel. With respect to promissory estoppel counsel referred to the judgment of Lord Denning in Central London Property Trust Ltd v High Trees House Ltd (1947) KB 130 and the conditions for its applicability. But it is quite obvious that the circumstance of the estoppel under consideration is not promissory at all. The Appellant had actually relinquished all claims to the house and indicated that all its benefits would henceforth accrue to his ex-wife for good. He further asserted that he did not know how much the house was worth then but that all of it belonged to her. There was no promise to do something at a future date. The act was completed. For the same reasons, proprietary estoppel is inapplicable here. The appellant did not promise to give the property in the future and there was no question of his ex-wife acting to her detriment based on the promise. The appellant by his own assertion gave the property to her for good and indicated that he never again wished to hear about his cruelty, his selfishness etc. He did not promise to give her the property if a stop was put to all talks about his cruelty. He gave the property in order to end such talk. It even goes to confirm that at the time he gave the property he intended, it to be for keeps and hoped it would end the impression created that he had been cruel. Learned counsel had also argued that the extract from Exhibit H was insufficient to create the estoppel in the absence of production of the actual letter by the Appellant to his ex-wife relinquishing his interest in the property. The learned trial Judge was in my view correct in the manner he construed the extract as an admission against interest. The contents were not denied. The appellant through his attorney admitted authorship of the letter, hence its admission in evidence through him. With regard to the question of the admission against interest vindicating the legal position, learned counsel, with all due respect is confusing the issues. The issue here is not whether legal title passed to Mrs Enahoro by virtue of the representation but whether the appellant can be estopped from denying having by his conduct divested himself of ownership of the property in favour of his ex-wife. I think counsel’s confusion arose from his preference to interpret the representation as a promise to give instead of what it actually was, a declaration that an outright gift inter vivos was made. Contrary to the stance of both sides that the gift was in place of alimony, there is no evidence in support of that either from Exhibit H or from any other source. The learned trial Judge was consequently right in ignoring the insinuation. In the case of Anyaegbunam v. Osaka & Ors (2000) LPELR-508 (SC) it was observed per Mohammed JSC that “a gift inter vivos is an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver.” The Appellant by his words voluntarily transferred the property to his ex-wife with the intention that as shown in Exhibit H that the property shall not return to him. The donor, his ex-wife by her conduct fully intended to retain the property as hers without restoring it to the appellant. She dealt with the property throughout her life as hers, hence her children, seeing themselves naturally as her successors in title let out the property to the 1st Respondent. To their surprise, the appellant now sought to recover possession from the 1st Respondent. The issue here does not entail proof of the gift inter vivos. The fact is that evidence that such gift was made can operate as estoppel by conduct to restrain the giver from retaking possession of the property.
Learned counsel for the appellant had submitted that the contest of the 2nd – 4th Respondents over their father’s house is not based on need but an act of vengeance – a vindictive resort to judicial process to continue a family feud and right perceived wrongs. With all due respect to counsel, the 2nd-4th Respondents did not initiate the suit. They are not the Claimants. They are defending the action to protect what they saw as an outright gift inter vivos to their mother which ought not to be taken away on her death. Perhaps, if the appellant had chosen the path of negotiation and settlement rather than court action, the result would have been different. Issue 1 is resolved in the affirmative and in favour of the Respondents.
ISSUE 3:
Whether the trial court was right in inferring that the control of the disputed property by the former Mrs. Enahoro, and the application by the Appellant, after her death, for the revalidation of his title deeds to the property indicated that he had parted with ownership of the property.
APPELLANT’S ARGUMENTS:
Learned counsel referred to the findings of fact of the trial judge in his judgment at page 347 of the Record as set out below:
“As stated, the letter was written in 1998. Between 1998 until the estrange wife died in 2004, a period of 6 years, the estrange wife took full control of the property. Exhibit “DWB” further showed that the estrange wife had dealt with the property, as far back as 1972 without no protest from the Claimant, Exhibits “A”, “C” and “C1” tendered by the Claimant, were all generated after the demise of the estrange wife, and these exhibits, after having found that the Claimant had relinquished his interest in the disputed property, cannot be used to defeat his intention and wish which he made in 1998 as is clear in Exhibit “H”. Furthermore, the Claimant did not explain to the Court why, as he alleged in his pleadings, he had to seek for the perfection of his title only after the death of his estrange wife. This lack of explanation indicates that he had parted with the ownership of the property as he intended in the letter.”
Counsel submitted that the above findings show the workings of the judge’s mind and how and why he arrived at the decision of the Court. Counsel argued that these findings are not supported by the facts of the case and evidence led before the court. Counsel submitted that the factual circumstances of the residence, use of, and dealing with the property by the late Mrs. Enahoro is well documented, explained and testified to in the pleadings of the Claimant and the sworn statement of C.W.1, and that these are largely supported by the evidence of D.W.2. Counsel submitted that it is not in dispute that the Appellant built the property, and that, that was the matrimonial home of the Enahoros, in which the 2nd, 3rd and 4th Respondents were borne. It was also not in dispute that the Appellant escaped from this house and went on self exile, when soldiers came after him during the crises which led to the Nigeria Civil war; that upon the breakdown of their marriage and subsequent divorce, the property became an issue for purpose of alimony payments; that C.W.1 testifying on behalf of the Appellant said that the late Mrs. Enahoro was allowed to keep the rents from the property in lieu of alimony payments while D.W. 2 said that the Appellant relinquished his interest in the property to the late Mrs. Enahoro in lieu of alimony payments. Counsel argued that whichever statement is accepted in this regard, it was clear that Mrs. Enahoro’s control of the property after the divorce was connected with the Appellant’s liability to pay alimony. He argued that the evidence before the lower court clearly explained credibly, the circumstances that led to the late Mrs. Enahoro’s use and control of the property without any protest from the Claimant from the period of the Claimant’s exile before the war up to the death of the former Mrs. Enahoro. He contended that from the time of the Claimant’s escape into exile, up until the divorce, there could not have been any protest by the Claimant over the control of the property by Mrs. Enahoro, as this was the matrimonial residence. Upon the breakdown of the marriage, there could not have been any protest from the Claimant, as the rents from the property was collected and used by the late Mrs. Enahoro, in lieu of Alimony payments. He argued that the control and use of the property by Mrs. Enahoro was explained at all times by factual evidence before the court. He contended that there was no need for speculation, insinuation or inferences as the lower court judge lapsed into. Counsel submitted that the need for perfection of title of the Claimant’s property was due to the fact that the original title deeds to the property were lost. He contended that this is contained in paragraph 10 of the witness statement of C.W.1 reproduced at page 110 of the Record of Appeal and that it is only rational that the Claimant would seek to perfect his title to the property, having decided to relocate finally to Nigeria after living for so many years abroad. Counsel submitted that the lower court’s finding that the timing of the Claimant’s effort at perfecting his title after the death of his wife is proof of the fact that he had relinquished his interest in the property is not only speculative, but ignores the factual evidence placed before the court.
1ST RESPONDENT’S ARGUMENTS:
Learned Counsel submitted that Appellant’s issue 3 is a misconceived attack on the findings of the lower Court about the conduct of the Claimant which supported the invocation of the doctrine of estoppel by conduct. Counsel argued that the Appellant by Exhibit H had unequivocally stated that he had relinquished ownership of the property to the mother of 2nd – 4th Respondents and that the said woman lived and died on the property, exercising various acts of ownership. Then suddenly after her death, the Appellant sought to procure fresh title documents over the property. Learned counsel submitted that the law cannot allow the Appellant to approbate and reprobate on the same property and that the learned trial judge was right to question the conduct of the Appellant in waiting until the demise of his late ex-wife before the attempt to secure fresh title documents to the property which he had relinquished to her. Counsel urged the court to hold that the learned trial judge was correct in holding that the Appellant’s action was caught by the principle of estoppel by conduct.
2ND – 4TH RESPONDENTS’ ARGUMENTS:
Learned counsel submitted that appellant’s issue 3 is academic in nature. He argued that as earlier submitted exhibit H, the letter written by the Appellant himself regarding how or why he relinquished his interest in the property did not indicate the it was in lieu of alimony as his counsel now belatedly wants the Court to believe. Counsel submitted that the finding of the lower court accord with logic. He contended that the Appellant fled to exile in 1966, his late wife lived in the property and exercised various acts of ownership until her demise in 2004. Now after the demise of his late wife Appellant suddenly realized that he needed to apply for title documents of the property. Counsel submitted that it was in reaction to these set of facts that the lower court made the findings complained about by the Appellant. Counsel further contended that the Appellant’s argument that he applied for the title deeds of the property because he had attained the age of 70 and wanted to return to Nigeria is totally unconvincing. He submitted that he does not require the title deeds to live in the property neither do they constitute entry requirement into Nigeria. Counsel argued that if indeed the appellant never relinquished his interest in the property then nothing prevented him from applying for the title documents during the lifetime of his late ex-wife. Counsel submitted that the story was an afterthought and urged us to dismiss the issue.
RESOLUTION:
I agree with learned counsel for the 2nd – 4th Respondents that this issue is somewhat academic. From the contents of Exhibit “H” there is clear evidence that the Appellant had made an outright gift inter vivos of the property to his ex-wife. On her death, it appears he changed his mind and decided to regain possession of the property by evicting the 1st Respondent, a tenant put in the property by her children. All the documents generated by the Appellant to enable him apply for his title documents which he claimed got lost were generated after the death of his ex-wife. The learned trial Judge was right in taking into consideration the fact that all the documents were obtained after the death of his ex-wife as supporting the fact that he had parted with possession and ownership to his ex-wife and was now trying to get the property back. Otherwise what stopped him from taking steps to replace the alleged “lost documents”
when his ex-wife was still alive. All the facts and explanations given by learned counsel for the Appellant in his brief as to why the Appellant took no action throughout the period his ex-wife was in possession and exercising acts of ownership over the property based on payment of alimony run counter to the statements of the Appellant in Exhibit “H”. His statement was that he was relinquishing all claims to the house and all its benefits to her for good. He even went on to say that he did not know how much the property was then worth but that it all belonged to her and that for a marriage that lasted only six years, he was not under-generous. The Appellant’s statement leaves no room whatever for speculation as to his intentions. The learned trial Judge was perfectly correct in the way he used the evidence from Exhibit “H”. He did not lapse into any speculation, insinuation or inferences as alleged by learned counsel for the appellant. Rather, his Lordship’s conclusion that the appellant’s conduct operated as an estoppel against him is based on the evidence presented and is unimpeachable. This issue for whatever it is worth is also resolved against the Appellant.
In the final result, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of Oshodi J of the High Court of Lagos State Ikeja Judicial Division in Suit No ID/486/07 delivered on the 31st day of March 2009 is hereby affirmed. I make no order as to costs.
AMINA A. AUGIE, J.C.A.: I read in draft the lead Judgment just delivered by my learned brother Iyizoba, JCA, and I agree with his reasoning and conclusion. I have nothing useful to add because he covered the field entirely. I therefore adopt his Judgment as mine and also dismiss the appeal. I also abide by the consequential orders in the lead Judgment including the order as to no costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: By Exhibit H, the appellant relinquished in absolute terms his ownership of the contested landed property to his wife in return for peace and/or to buy peace from his said wife to the summarised effect that the entire or all of the landed property in question belonged to her upon which she was in possession of the landed property in question for upward of 42 years before her death inter vivos after which the landed property in question devolved on her daughter, the 2nd to 4th respondents, the seeds of the marriage between the appellant and his deceased ex wife.
Based on the state of affairs (supra) I find it hard and unconscionable for the appellant to have sued at the court below for the recovery of the landed property in question, in the circumstances of the case. Because a man’s word is his bond. See the apt old English case of Cave v. Mills (1862) 7 H. and N.913 at 927 -928 where Baron Wilde held –
“A man shall not be allowed to blow hot and cold – to affirm at one time and deny at another – making a claim on those whom he has deluded to their disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice, and whether it is called ‘estoppel’ or by any other name, it is one which courts of Law have in modern times most usefully adopted”.
The passage quoted above therefore nailed the appellant to the bargain both in honour, conscience and justice.
Further, being an absolute gift inter vivos the appellant cannot resile from it. See Imah v. Okogbe (1993) 1 NWLR (Pt.315) 159 at 173 where it was held inter alia that –
“The word “give” according to the Concise Oxford Dictionary, p.578 means: bestow gratuitously, hand over as present, confer ownership of with or without actual delivery, and could not properly be interpreted to mean “made available” or “show” as was contended by the learned counsel for the appellants. The two parcels of land, aforesaid, were unconditional gifts made by the appellants’ community to the Bendel State Government. Unless a donor reserves the right to revoke, once a gift has been validly executed it cannot be revoked in the absence of fraud, mistake, misrepresentation or other invalidating cause. See Ogilvie v. Allen (1899) 15 T.L.R. 294″
In the result, I agree with the comprehensive judgment prepared by my learned brother Chinwe Eugenia Iyizoba, J.C.A., which I had the honour of reading in draft, that the appeal is unmeritorious and is hereby dismissed and the judgment of the court below (Oshodi, J) affirmed without costs.
Appearances
Essien Udom Esq., with Inyang Udo Ewa and Emola AsinoFor Appellant
AND
C. H. Nwuke Esq., with C. C. Udeolisa Esq., for the 1st Respondent.
M. J. Onigbanjo San with Temitope Atiba for the 2nd – 4th Respondents.For Respondent
