MAZI SOMMUMALU PUTAUWA EEDAY-NWANKWO v. WEMA BANK PLC & ORS
(2018)LCN/12463(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/C/234/2015
RATIO
COURT AND PROCEDURE: THIRD PARTY PROCEEDINGS
” A third party by implication is a party brought in by a defendant to an action as one against whom he has a cause of action with respect to the main action. The Third Party is not a Defendant to the main action as the Claimant has no cause of action against him. The Claimant has no relief against a third party and in the case at hand no allegation was made against the third party in the action of the Claimant who is now Appellant in this Court.” PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
MAZI SOMMUMALU PUTAUWA EEDAY-NWANKWO Appellant(s)
AND
1. WEMA BANK PLC
2. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, CROSS RIVER STATE
3. REGISTRAR OF DEEDS, CROSS RIVER STATE MINISTRY OF LANDS
4. CROSS LINES LIMITED Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment):
This is in respect of an appeal against the decision of the High Court of Cross River State delivered on the 15th day of December, 2014 by EDEM, J. (as he then was).
The bid of the Appellant to dispose of his properties lying and situate along Murtala Mohammed Highway Calabar, Cross River State to the 4th Respondent (a corporate entity in which Cross River State represented by the 2nd Respondent had interest), was inconclusive and subsequently the 1st Respondent came into the picture in circumstances not agreeable to the Appellant. The attempt by the 1st Respondent to regularize its acquired title with the 3rd Respondent was resisted through caveats entered by the Appellant and the 2nd Respondent. The Appellant then took out a writ of summons on the 20th October, 2005 which was subsequently amended. The reliefs sought in the said suit as per the Further Amended Statement of Claim contained on pages 5-11 of the record of appeal are as follows:
(a) A declaration that he is the owner of all those two pieces or parcels of land lying and situate on Murtala Mohammed Highway, Calabar, measuring approximately 1306.080 and 1393.00 square meters and covered by Certificates of Occupancy No. CA/658/81; CA/657/81 and registered as No. 96 at Page 96 in Volume 186 and No. 97 at Page 97 in Volume 186 of the Land Registry, Calabar, respectively.
(b) An order of perpetual injunction restraining the 1st Defendant from continuing with its trespass on the Claimant’s properties.
(c) An order evicting the 1st Defendant from the land of the Claimant forthwith.
(d) An order of perpetual injunction restraining the 2nd Defendant or any of its agents from disturbing the right or interest of the Claimant over all that pieces or parcels of land covered by Certificates of Occupancy numbers CA/658/81 and CA/657/81.
(e) The sum of N17,000,000.00 from the 1st Defendant being replacement cost of Claimant building pulled down by the 1st Defendant.
(f) The sum of N80,000.00 monthly from January, 2004 till possession is given over to the Claimant by the 1st defendant being loss of rent on the property.
(g) The sum of N100,000,000.00 being special and general damages for trespass, loss of use and destruction of Claimant’s properties found on the land from the 1st defendant.
(h) A declaration that the 2nd defendant has no right to place a Caveat on the Claimant’s properties.
(i) An order directing the 3rd defendant to cancel or annul the Caveat placed on the Claimant’s land by the 2nd Defendant.
The younger brother of the Appellant who played a major part in the transaction, was joined to the suit as third party at the instance of the 1st Respondent while the 4th Respondent applied and was joined as the 4th Defendant.
The 1st Respondent on its part counter-claimed and sought the reliefs contained in its Further Amended Statement of Defence and Counter-claim on pages 68-75 of the record of appeal, to wit:
i. A declaration that the Defendants have no interest whatsoever in the properties lying, situate and being along Muritala Mohammed Way, Calabar, which properties are covered by Certificates of Occupancy Nos. CA/658/81 and CA/56/81 and registered as No. 96 at Page 96 in Volume 186 and No. 97 at Page 97 in Volume 186 at the Lands Registry Office in Calabar.
ii. An order declaring the caveats placed on the properties by the Defendants to Counter Claim and/or any other person, at the Lands Registry in Calabar, Cross River State null, void and of no effect.
iii. An order dismissing the Counter Claim of the 2nd to 3rd Defendants to the Counter Claim.
iv. An order that the Counter Claimant herein is the person entitled to the statutory right of occupancy in respect of the properties lying, situate and being along Muritala Mohammed Way, Calabar, which properties are covered by Certificates of Occupancy Nos. CA/658/81 and CA/56/81 and registered as No. 96 at Page 96 in Volume 186 and No. 97 at Page 97 in Volume 186 at the Lands Registry Office in Calabar.
v. The sum of N1,000,000.00 (One Million Naira) cost of the suit.
The 2nd and 3rd Respondents equally filed a Statement of Defence and Counter-claim contained on pages 131-135 of the record of appeal whereof they sought the following reliefs:
Whereof the 2nd and 3rd defendants counter claim against the claimant/defendant as follows:
A. A declaration that by issuing the receipt dated 22nd May 2000, the claimant disposed of all his equitable interests in the property situate at Murtala Mohamed Highway, also known as Plots 58 and 59 respectively, Ishie Presbyterian Layout Calabar, and registered as No. 96 at page 96 in Volume 187 and No. 97 at page 97 in Volume 186 at the Lands Registry Office at Calabar to the counter claimants.
B. A declaration that at all times material to this action, the claimant or any person claiming through him in any way whatsoever had no right or interest in the land in question sufficient to alienate in any form whatsoever to the 1st defendant.
C. AN ORDER OF SPECIFIC PERFORMANCE directed to the claimant to forthwith execute all relevant transaction documents necessary to complete the assignment of the land in question to Cross Lines Limited; or failing compliance by the claimant within 30 days
D. An order directing the Chief Registrar of the High Court of Cross River State to execute the said relevant transaction upon production to him of the drawn up orders of this Court.
Trial was mainly between the Appellant and the 1st Respondent as the 2nd and 3rd Respondents fizzled out of the contest without calling evidence or addressing the Court.
Final addresses were made by counsel for the Appellant, the 1st Respondent and the 3rd Party. Thereafter the learned trial Judge delivered a reserved judgment dismissing the claims of the Appellant and finding for the 1st Respondent.
Apparently miffed at this outcome, the Appellant invoked the appellate jurisdiction of this Court vide the Notice of Appeal filed on the 19thDecember, 2014 containing 5 grounds of appeal. The said Notice of Appeal was subsequently amended vide the Amended Notice of Appeal filed on the 30th October, 2017 but deemed properly filed and served on the 6th March, 2018 this time containing 9 grounds of appeal.
At the hearing of the appeal, Mr. Agi, SAN adopted the Appellant?s brief filed on the 30th October, 2017 but deemed properly filed and served on the 6th March, 2018 as the arguments of the Appellant in furtherance of this appeal.
Mr. Idiege on his part adopted the 1st Respondent?s brief filed on the 8th March, 2018 as the arguments of the 1st Respondent in contesting this appeal.
The Appellant distilled and formulated 3 issues for determination as follows:
1. Whether the decision of the trial Court to on its own convert the third party to 5th Defendant and predicated its decision on that illusion did not lead to a miscarriage of justice. (Ground 1)
2. Whether the assertion by the 1st Respondent that Appellant appointed and represented the 3rd party as his agent was proved by it at the trial as required by law to justify the findings of the lower Court. (Ground 8).
3. Whether in the circumstances of this case and the evidence on record:
(a) It can be said that the 1st Respondent paid N19,500,000 to the Appellant or so called agent for the property of the Appellant lying and situate at Murtala Muhammed Highway Calabar covered by Certificates of Occupancy Nos. CA/657/81 and CA/658/81 and Registered as No. 96 at Page 96 in Volume 186 and No. 97 at Page 97 in Volume 186 Land Registry Calabar to justify the defence of being bonafide purchaser for value without notice of any encumbrance.
(b) The refusal or neglect of the 1st Respondent to produce and tender the purported deed of assignment allegedly signed by the Appellant in their favour over the land in dispute during the trial did not amount to withholding evidence. (Grounds 2,3,4,5,6 & 7)
The 1st Respondent on its part distilled and submitted 2 issues for determination as follows:
1. Whether the learned trial Judge was right in holding that Chief Tony Nwankwo was the agent of a disclosed principal, thereby making and holding the principal (Appellant) bound by the action of his agent. (Grounds 1, 3, 4, 5 and 8).
2. Whether the learned trial Judge was right in dismissing the claimant (sic) appellant’s case and granting the counter claim of the 1st respondent.
The Appellant’s issues 1 and 2 are covered by the 1st Respondent?s issue 1 while the Appellant’s issue 3 is taken up in the 1st Respondent’s issue 2. I shall in adopting the issues as formulated by the Appellant be guided accordingly.
I shall therefore take issues 1 and 2 of Appellant together and juxtapose them with the arguments canvassed by the 1st Respondent in its issue 1.
Mr. Agi, SAN contended that the learned trial Judge failed to apprehend the position of the law as regards 3rd party proceedings and therefore erroneously held the Appellant as Claimant to burden of proof as regards the 3rd Party thereby occasioning miscarriage of justice. He referred to UNION BANK OF NIG. LTD VS EDIONSERI (1988) NWLR (PT 74) 93, NNPC VS ZARIA (2014) LPELR-22362(CA), TOTAL NIG. PLC VS DELMAR PETROLEUM CO. LTD (2003) 7 NWLR (PT 819) 314 AND ADISA VS OYINWOLA & ORS (2000) 10 NWLR (PT 674) 116 at 219.
The learned Senior Counsel argued further that the finding of the trial Court that the 3rd Party was the Appellant?s disclosed agent for the transaction was perverse. His basis for this was that it was not based on the adduced evidence in open Court as the exhibit relating thereto was dumped without oral evidence linking it with the case, that the said document did not support the findings in that regard and that the 1st Respondent failed to discharge the onus on it to establish the existence of the agency. He referred to JALLCO LTD VS OWONIBOYS TECH SERVICES LTD (1995) 4 NWLR (PT 39) 534, LAMIDI VS STATE (2016) LPELR 41320(CA), LADOJA VS AJIMOBI (2016) 10 NWLR (PT 519) 87, OMISORE VS AREGBESOLA (2015) 15 NWLR (PT 1482) 205 at 323, LUMATRON (NIG) LTD VS FCMB (2016) LPELR 41409 and IWUOHA & ANOR NIGERIA POSTER SERVICES LTD (2003) 8 NWLR (PT 822) 308.
The 1st Respondent argued contrariwise that even if the authority of the 3rd Party was limited and had expired at the time of the transaction, the conduct of the Appellant amounted to ratification of the acts carried out by the said 3rd Party thereby putting the agency relationship beyond contention. The learned counsel referred to VULCAN GASES LTD VS G.F. IND, A.G. (2001) 9 NWLR (PT 719) 610, R.E.A.N LTD VS ASWANI ILES IND. (1991) 2 NWLR (PT 176) 639 at 667 and OFODILE VS CHIWUBA (1993) 1 NWLR (PT 268) 151 at 166.
On page 200 of the record of appeal, the learned trial Judge stated in lines 18-25 as follows:
The rationale for the presence of the additional parties can be explained thus. Upon being served the original processes, the 1st Defendant applied to have the 4th Defendant, Tony Nwankwo joined as a third party in this suit. And he was so joined by an order of Court to become the 5th Defendant. On the 4th Defendant, Cross Lines Limited, upon its application was joined equally by an order of Court as a party and became the 4th defendant herein.
At all times material to this suit the 5th Defendant is unveiled as an agent to the Claimant. This fact is crystallized because at no time in the course of this suit did the Claimant renounce by due process the agency of the 5th Defendant, the Third Party.
The late Chief Tony Nwankwo was referred to as Third Party and 5th Defendant by the learned trial Judge which seems contrary to the pleadings and if I may say is a mix up in conceptions. A third party by implication is a party brought in by a defendant to an action as one against whom he has a cause of action with respect to the main action. The Third Party is not a Defendant to the main action as the Claimant has no cause of action against him. The Claimant has no relief against a third party and in the case at hand no allegation was made against the third party in the action of the Claimant who is now Appellant in this Court.
The mix up in the designation and conception probably however had little or no discernible impact on the subsequent evaluation. On page 202 of the record of appeal, the learned trial Judge stated in lines 10-16 as follows:
The question now is if the claimant has made a confession that he has no case against his brother, the 3rd party who is not only a common denominator in the property transaction that seemingly embraced all the parties but an alpha and omega in the transaction is declared clean and untouchable by the claimant, is it then the other parties who must be held accountable in this same suit while his brother is partnering with freedom balm. That will be furiously oppressive of the other parties he is claiming against.
I will not rubber stamp the oppression.
Having come to the above position the learned trial Judge proceeded to the counter-claim of the 1st Respondent.
While the Appellant denied the assertion of the 1st Respondent that the 3rd Party was his agent, he averred in paragraphs 16-20 of his Statement of Claim and paragraphs 3, 5 and 6 of his Reply And Defence to 1st Defendant’s Defence and Counter Claim thus:
Paragraphs 16-20 of the Statement of Claim:
16. The Claimant avers that his younger brother Chief Tony Nwankwo who is aware of this transaction with the 4th Defendant came to him at Aba from Calabar on the 24th December, 2003, with two persons whom he introduced as the Personal Assistants to the Cross River State Secretary to the State Government with Assurance Bank cheque of N3 million allegedly from 4th Defendant as balance of the money and interest on the long delay for keeping the money. The cheque is now pleaded.
17. The Claimant avers that the two Personal Assistants demanded the original title deeds to enable them prepare the final agreement between the Claimant obliged his brother and the two people with the title deeds.
18. The Claimant states that the cheque was returned unpaid twice and frantic calls were put to Chief Tony Nwankwo who subsequently informed the Claimant that he had collected cash and paid N2 million into the Claimant’s Zenith Bank Account.
19. The Claimant avers that his younger brother Chief Tony Nwankwo came to him in his Aba residence with a prepared agreement for his signature, upon perusing the document, several anomalies were noticed amongst them are- the Purchaser’s name changed from that of the 4th Defendant to Wema Bank Plc, the purchase price on the agreement became N9.5 million.
20. The Claimant sent his brother and the document back and refused to sign any document.
Paragraphs 3, 5 and 6 of The Reply And Defence to 1st Defendant?s Defence and Counter Claim:
3. The Claimant avers that the purported letter of instruction dated 01/12/1997 and addressed to Mr. Anthony M. Nwankwo and Arc. Oliver Braide specifically directed either of them to only source for a willing buyer in the following words reproduced here for emphasis:
‘You are by this letter authorized to source genuine buyers for a negotiation of a fair price so that the disposal process can be concluded on or before the 31st March, 1998’.
5. The Claimant avers that he never at any time handed over the original title document to the 1st Defendant or executed any deed in its favour.
6. The original title document got into the hands of the 1st Defendant from Chief Tony Nwankwo and some persons he introduced as personal assistant to the Secretary to the State Government who put the Claimant under the impression that they had come to finalize the aforementioned agreement with Cross Lines Nigeria Limited.
The Appellant described himself as a registered Chartered Quantity Surveyor and Businessman and was therefore neither illiterate nor a novice to real estate matters or affairs of the world. While he made no mention of any instruction to the 3rd Party, Chief Tony Nwankwo in his averments in the Statement of Claim or even that he gave the said Chief Nwankwo the original documents of the said property, all these facts emerged in his response to the Statement of Defence and Counter-claim of the 1st Defendant, now 1st Respondent.
He denied that his said younger brother was his agent at the time of the transaction. He predicated this assertion on the fact that the earlier agency instruction given to the said Chief Nwankwo had expired in 1998. Yet at the time of the transaction, this person who was not his agent brought a cheque to him, paid cash to his account and he stated expressly that he handed over the title documents of his said property to him.
I agree with the learned counsel for the 1st Respondent that all these actions are consistent with an affirmation of the existence of an agency relationship with the said late Chief Nwankwo who was the Third Party to the action. See VULCAN GASES LTD. VS GESELLSCHAFF FUR (IND.) GASVERWERTIJNG A. G. (G.I.V.) (2001) 6 NSCQLR 481
The arguments and postulations of the Appellant as regards Exhibit 25 are devoid of any form of credibility in the face of the averments in paragraph 3 of his Reply And Defence to 1st Defendant?s Defence and Counter Claim where the said document was expressly pleaded. This document was common to the cases of both the Appellant and the 1st Respondent and did not require being spoken to by the witness of the 1st Respondent. There was therefore no basis to contend that the learned trial Judge brought the said document into the adduced evidence vide a ?solo voyage of discovery?.
The Appellant by his own case had admitted divesting himself of any title in the properties in issue. Before this Court, the Appellant asserted thus in paragraph 4.21 at page 16 of his brief:
The Appellant gave unchallenged and uncontradicted evidence that he had sold the said land and received part payment from Cross Lines Limited to the knowledge of the 3rd party in the year 2000. This contained in his evidence in Chief paragrphs 9,10,11 & 15 of Witness Statement on Oath (see Pages 13 & 14 of the record of Appeal). Of note is Paragraph 15 ‘That till today the issue are pending and I want to meet them as directed in their letter. In the meeting I asked for the balance of the agreed price and they could not meet their obligation and I too refused to hand over the documents or sign any agreement with cross lines limited, thereby keeping my property. My younger brother Chief Tony Nwankwo who is resident in Calabar knew of the whole transaction.’
The Appellant had averred as earlier indicated in paragraph 6 of his Reply And Defence to 1st Defendant’s Defence and Counter Claim that he gave the original title documents of the said properties to his younger brother and agent, Chief Tony Nwankwo in the understanding that they were meant for Cross Lines Limited, the 4th Respondent to whom he had sold the properties. This in effect meant that he had divested himself of his title in the said properties and had no basis to seek the reliefs he sought at the trial Court. This was an admission by the Appellant which by implication divested his entire reliefs of any meritorious consideration. What is admitted is settled and needs to further consideration. See NTUKS & ORS VS NPA (2007) 31 NSCQR 430 at 451 and UBA VS JARGABA (2007) 31 NSCQR 144.
The Appellant cannot be permitted to approbate and reprobate. He must be consistent in the presentation of his case. He cannot in one breath assert that he had divested his interest in the course of an earlier transaction and be seeking the judicial affirmation of the existence of the same interest. See COMPTROLLER GENERAL OF CUSTOMS & ORS V. GUSAU (2017) LPELR-42081(SC).
The error of the trial Court as regards the 3rd Party erroneously classified as 5th Defendant did not result in miscarriage of justice against the Appellant and I must accordingly resolve the two issues here in favour of the 1st Respondent and against him.
The remaining issues is:
Whether in the circumstances of this case and the evidence on record:
(a) It can be said that the 1st Respondent paid N19,500,000 to the Appellant or so called agent for the property of the Appellant lying and situate at Murtala Muhammed Highway Calabar covered by Certificates of Occupancy Nos. CA/657/81 and CA/658/81 and Registered as No. 96 at Page 96 in Volume 186 and No. 97 at Page 97 in Volume 186 Land Registry Calabar to justify the defence of being bonafide purchaser for value without notice of any encumbrance.
(b) The refusal or neglect of the 1st Respondent to produce and tender the purported deed of assignment allegedly signed by the Appellant in their favour over the land in dispute during the trial did not amount to withholding evidence. (Grounds 2,3,4,5,6 & 7)
Arguing this issue, Mr. Agi, SAN submitted that no evidence of payment to the Appellant by the 1st Respondent was adduced at trial as the payment supposedly made by the 1st Respondent was not to the Appellant or the 3rd Party said to have been his agent and that this was evident from exhibit 6. He argued that the money parted with by the 1st Respondent went elsewhere and it could accordingly not be stated that it was a purchaser for value but was rather a trespasser.
The learned Senior Counsel submitted further that the failure of the 1st Respondent to tender the deed of assignment said to have been executed to it by the Appellant amounted to deliberate withholding of evidence to which Section 167(d) of the Evidence Act should apply. He referred to BOZIN VS STATE (1985) 2 NWLR (PT 8) 465, BAMGBOSE VS JIAZA (1991) 3 NWLR (PT 177) 64, NEPA VS AKPATA (1991) 2 NWLR (PT 175) 536 and UZOHO VS TASK FORCE ON HOSPITAL MANAGEMENT (2004) 5 NWLR (PT 867) 627.
Mr. Agi, SAN therefore urged the Court to hold that there was no evidential basis for the findings of the learned trial Judge on the payment of the land in issue.
The learned counsel for the 1st Respondent countered that there was sufficient evidence in support of the findings of the trial Court as the role of the 3rd Party was never in doubt and the original document said to have been withheld were in possession of the 3rd Respondent who never denied same thereby precluding the operation of Section 167 (d) of the Evidence Act as argued by the Appellant.
As earlier held while considering the first two issues, the expressed position of the Appellant was that he had disposed of the said property to the 4th Respondent and that funds paid into his account by his late brother was to conclude that transaction and which necessitated the title documents being handed over. Having made this assertion, the entire arguments herein canvassed are deprived of any validity.
There is therefore no life in the question posed by this issue as the Appellant had no further interest left in the said property capable of being acquired or transferred to the 1st Respondent or anyone for that matter.
In totality therefore, I find no merit in this appeal and I dismiss it accordingly.
Cost of N 100,000.00 is awarded against the Appellant and in favour of the 1st Respondent.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read before now, the judgment just delivered by Oyewole, JCA, the argument of the learned counsel contained in their respective briefs of argument, vis–vis the record of appeal, I too find no merits in the instant appeal. The appeal is hereby dismissed by me on the terms of N100,000.00 cost awarded in favour of the 1st Respondent.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, J. O. K. Oyewole, JCA.
I am in agreement with his reasoning and his conclusion that this appeal lacks merit. I also do so find and I accordingly dismiss this appeal.
?I abide by the consequential orders inclusive of the order as to costs as made in the lead judgment.
Appearances:
Joe Agi (SAN) with him, N. OnwugharamFor Appellant(s)
Julius Idiege hold brief- for 1st Respondent.
Okoi Ukam – for 2nd & 3rd Respondents
4th Respondent served 8/5/2018 -absentFor Respondent(s)
