AJENE v. AJENE & ANOR
(2022)LCN/16136(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, May 13, 2022
CA/MK/128/2020
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
JACOB OBANDE AJENE APPELANT(S)
And
1. COMFORT OGIRI AJENE 2. NATHANS GWEBE RESPONDENT(S)
RATIO
THE GENERAL PRINCIPLE OF LAW BASED ON THE DOCTRINE OF PRIVITY OF CONTRACT
As a general principle of law based on the doctrine of privity of contract, a contract cannot as a general rule, confer rights or impose obligations under it on any person, except the parties to it. Only parties to a contract can sue or be sued on the contract. A stranger to the contract can neither sue nor be sued on the contract: Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356, Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96 at 101 and Rebold Industries Ltd v. Magreola (2015) 8 NWLR (Pt. 1416) 210. The import of the doctrine of privity of contract is that a contract or an agreement cannot bind a person who is not a party to it nor can such person take or accept liabilities under the contract or agreement nor benefit thereunder. PER HASSAN, J.C.A.
WHETHER OR NOT A PERSON WHO FANCIES A NAME OR TITLE IS FREE TO ADOPT SAME
In my considered but humble view, anybody who fancies a name or title for whatever reason is free to adopt same. Even within the same family, the same name is used by different members of the same family, as often as the members of the family want or others outside the family as they desire. In OFFOBOCHE V OFFOBOCHE (2006) 13 NWLR (Pt. 997) Page 298 at 304 para. E and 306 para. B. the Court held: ‘’No person, group of persons or family has a monopoly of names. Persons have unrestrained liberty to pick and choose names that please them….No legislation in Nigeria restricts a person to a fixed number of names. In effect, even if names are identical or same, no person in Nigeria has a legal right to restrain another person from answering or bearing those names’’ PER HASSAN, J.C.A.
THE PRIMARY DUTY OF THE TRIAL COURT IN EVALUATING THE EVIDENCE OF PARTIES BEFORE IT
In Mrs. Elizabeth Irabor Zaccala v. Mr. Kinsley Edosa & Anor (2018) 6 NWLR (Pt. 1616) 528 at 545 paragraphs B-D per M.D. Muhammad, JSC Stated: ‘’It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC).’’
In Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471 this Court held that:
‘’An Appellant who appeals on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. The 1st respondent’s appeal to the lower Court was on the basis of proper/non-evaluation of documentary evidence. Exhibit A and P.’’ PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice Aondover Kaka’an in Suit No. MHC/376/2018, on the 30th day of June, 2020, wherein the trial Court dismissed both the Appellant’s claim and the 1st Respondent’s counter claim.
The Appellant was the Plaintiff, while the 1st Respondent was the 1st Defendant, and the 2nd Respondent was the 2nd Defendant at the trial Court respectively. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court.
The Record of Appeal was compiled and transmitted to this Court on the 31st of August, 2020. The Appellant’s brief was filed on the 20th of November, 2020, but same was deemed properly filed by this Court on the 11th of November, 2021, while the 1st Respondent’s brief of argument was filed on the 20th of October, 2021, and deemed proper before this Court on the same date. The 2nd Respondent’s brief was filed on the 16th of June, 2021, but deemed proper before this Court on the 15th of July, 2021. The Appellant upon being served with the Respondents’ brief of argument, filed a reply brief in answer on point of law to the 1st Respondent’s submissions on the 2nd of November, 2021.
At the hearing of the appeal, counsel to both Appellant and the 1st and 2nd Respondents adopted their respective briefs.
The Appellant originally commenced this suit against the 1st Respondent. However, after the 1st Respondent had testified and closed her case, the 2nd Respondent upon the oral application of the Appellant was joined as 2nd defendant in the suit by an order of the trial Court on the 22nd of November, 2019. See page 222 of the Record of Appeal. The 2nd Defendant upon being joined as defendant filed his statement of defence even though the Appellant who was Plaintiff at the trial Court did not amend his process to include him as 2nd Defendant, and neither did he have any claims against him.
The Appellant who was Plaintiff at the trial Court commenced this suit against the 1st Respondent and by a writ of summons dated the 23rd of October, 2018, and filed on the same date, which was issued to the 1st Respondent who was tagged as defendant at the trial Court. The reliefs sought by the Appellant against the 1st Respondent by paragraph 17 of the statement of claim accompanying the writ are as follows:
1. A DECLARATION that the Plaintiff is the title holder in and over the property known as No. 13 Inikpi Street, High Level Makurdi, Benue State.
2. AN ORDER of this Honorable Court directing the defendant to hand over the original title document to wit: Certificate of Occupancy No. BNC 4546 covering the said property to the plaintiff.
3. AN ORDER directing the defendant to account for all monies collected by her as rent from the tenant in the property from 2013 until the date of filing this suit.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the defendant or anyone acting on her behalf or claiming through her from collecting rent on the property or dealing with it in any manner whatsoever to the detriment or inimical to the title of the Plaintiff. See page 6 of the Record of Appeal.
It is to be noted that despite joining the 2nd Respondent as 2nd Defendant in the suit, the Appellant did not amend his claims, as they still remain same and against the 1st Respondent only. The 1st Respondent on the strength of her defence filed a counter claim against the Appellant. The claims of the 1st Respondent as per paragraph 2 (g) of her counter claim against the Appellant are as follows:
1. Declaration that the words altered, authored at the instance of the Defendant, published and contained in the letter dated 3rd July, 2018, the deposition on oath of the defendant in this suit dated 23rd October, 2018, concerning and about the counter claimant are false, defamatory and aimed at lowering the reputation and honor of the counter claimant.
2. Order of the Court directing the defendant to retrace the same by writing a letter of apology to the counter claimant which should be copied to the office of the counter claimant and a deposition at the Registry of the Court forthwith.
3. Order of the Court perpetually restraining the defendant by himself, agents, servants through and by whomsoever acting for him or on his behalf from further acts of defaming the counter claimant.
4. General damages in the sum of N100,000,000.00 only
5. 10% interest on the judgment sum until the entire judgment is paid.
BRIEF STATEMENT OF FACTS
The case of the Appellant is that sometimes in 2000, he bought a property at No. 13 Inikpi Street, High Level Makurdi, from one Ortserga Mishi, and upon conclusion of payment of the purchase price, a deed of assignment was executed, and consent to assign was submitted to the land registry.
That his application to assign was granted and the deed of assignment was duly registered and the Land Registry proceeded to issue the Plaintiff a new certificate of occupancy No. BNC 4546, and at the time all this happened, the Plaintiff’s elder brother was the Deputy Governor and the Defendant was his wife.
The Appellant’s case was that at the time he bought the property he was residing at Lagos and he engaged the services of an agent to handle some aspects of the transaction for him, and because he was not in Makurdi, he requested his elder brother to receive the Certificate for him from the Land Registry. That while his elder brother was being diagnosed with Cancer in London, his wife, the defendant returned to Nigeria and removed all his title documents in his elder brother’s custody and started collecting rent on the property in dispute.
The Appellant’s case is that he has restrained himself since 2013 from taking any legal action in a bid to avoid family crises, hoping that the Respondent would return the document, and after several oral request to no avail, he cause his counsel to write to the Respondent to demand the Respondent return the certificate because according to Appellant, she has no title to the property covered by the Certificate of Occupancy No. BNC 4546. See pages 4–6 of the Record of Appeal.
The 1st Respondent however denied the claims of the Appellant and states that the Appellant is her son’s namesake and a lawyer called to the Nigerian Bar. And that contrary to the Appellant’s claims, he has no property at No. 13 Inikpi Street High Level Makurdi, and the entire pleadings of the Appellant that he bought the said property in 2000 are completely false.
It is the 1st Respondent’s case that her son bears the same name as the Appellant who is her late husband’s younger brother. That she acquired the property in dispute in the presence of one Mrs. Enayi Onuh from Mr. Ortserga Mishi for the sum of N480,000.00 and gave the name of her son Jacob O. Ajene to be the name on the deed of assignment which was prepared by the law firm of Ocha P. Ulegede & Co. That she signed the deed on behalf of her son, and same was witnessed by Mrs. Enayi Onuh.
After completing the deed of assignment, the 1st Respondent engaged the services of the agency of Mrs. Enayi Onuh who handled the entire procedure for application and obtaining the statutory Right of Occupancy on her behalf and has been the caretaker of the property as well until recently. That the Appellant brought this suit upon finding the certificate of occupancy on the property and seeing that same bears names similar to his, he started harassing the 1st Respondent.
That the Appellant in order to prosecute this suit went to the ministry of land and applied for certified true copies of the file No. BNC 4546 and same was issued to him. That the Appellant is a liar and he has been entrusted with the 1st Respondent’s late husband businesses to manage, but he withheld same for his personal aggrandizement. But that she has assigned the title in the property to another person who is the 2nd Respondent. See pages 35–45 of the Record of Appeal.
The 2nd Respondent’s case is practically one admitting that the 1st Respondent was the owner of the property as he witnessed when she was inspecting the property and equally bought it from her when he sought for a place to situate his law firm. That he has expended monies to develop the property. See pages 119 to 124 of the Record of Appeal.
ISSUES FOR DETERMINATION
The Appellant for the determination of this appeal distilled four issues for determination as follows:
1. Was the trial Judge right to hold that the Appellant was a stranger to the transaction for the purchase of the subject property, having regards to the fact that his name is on the certificate of occupancy and his undiminished evidence that he signed the deed of assignment? (Grounds 1, 3, and 4).
2. Was the trial Court right in relying on the authority of Alliance for Democracy v. Fayose in holding that it makes no difference whether the 1st Respondent’s son is referred to a Jacob Ogiri Ajene or Jacob Obande Ajene, in view of the fact that the name on the certificate of occupancy was central to the dispute between the parties. (Grounds 2, 5).
3. Did the trial Court correctly evaluate the case of the Appellant in arriving at the finding that “the case of the Plaintiff is further that the DW1 supplied the 1st Respondent’s son’s name on the said land form 1A, but attached a passport size photograph of an adult rather than the 1st Defendant’s son” thereby leading to the further finding that the Appellant termed exhibit K as false? (Grounds 6 and 7).
4. Is the 1st Respondent’s son a necessary party to the suit in view of the fact that no allegation of fact was made against him and he was a minor at the time of the transaction? (Grounds 8, 9).
The counsel to the 1st Respondent however distilled two issues for determination and made submissions on same as arising from the 9 grounds of appeal.
1. Whether the son of the 1st Respondent is a necessary party to the suit and his abscene renders the Appellant’s suit incompetent and the reliefs sought therein ungrantable by the trial Court in the circumstances? (Grounds 8 and 9 of the Grounds of Appeal).
2. Whether the learned trial Chief Judge was right in dismissing the claims of the Appellant in view of the pleadings and evidence before the trial Court? (distilled from grounds 1, 2, 3, 4, 5, 6 & 7 of the grounds of appeal).
The 2nd Respondent however adopted the four issues formulated by the Appellant in arguing the appeal.
I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs. I shall adopt the four issues distilled in the Appellant’s brief as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
Was the trial Judge right to hold that the Appellant was a stranger to the transaction for the purchase of the subject property, having regards to the fact that his name is on the certificate of occupancy and his undiminished evidence that he signed the deed of assignment? (Grounds 1, 3, and 4).
APPELLANT’S COUNSEL SUBMISSION
Counsel in commencing his argument under this issue reproduced his pleadings at the trial Court and submitted that in support of his pleadings, the Appellant gave evidence in paragraphs 2, 3, 4, and 5 of his witness statement on oath to the same effect. That the Appellant also tendered a certified true copy of his tax clearance certificate which was admitted in evidence as Exhibit ‘H’. Counsel submitted that these pieces of evidence were not discredited under cross-examination. In fact, under cross-examination, the Appellant confirmed that he met Ortsega Mishi on the day they signed the deed of assignment.
That the deed of assignment (exhibit F), found at page 96-98 of the record of appeal, is in the Appellant’s name and all the particulars of the assignee contained in Exhibit K belongs to the Appellant and not the 1st Respondent’s son, except the photographs of some unknown person which the DW1 admitted she fraudulently affixed to the Exhibit K, and inspite of all these evidence, the Court held that the Appellant is a stranger to the transaction.
Counsel submitted that the learned trial Judge took into consideration irrelevant facts in coming to the conclusion that the Appellant is a stranger to the transaction in issue. For instance, the trial Court stated at page 16 of its judgment, compiled at page 309 of the records, that the person who handled some aspects of the transaction for the sale of the property to the appellant is not known.
However, Counsel contended that the identity of the agent that handled the initial discussions for the sale of the property for the Appellant is completely irrelevant. That the suit is based largely on documentary evidence for declaration of title, and the success or failure of it will depend on the documents of title before the Court. That the relevant documents therefore are the deed of assignment and certificate of occupancy, both bearing the Appellant’s name which were tendered and admitted in evidence as exhibits F and G, respectively.
Counsel emphasized that the Appellant’s case that he signed the deed of assignment personally with Mr. Ortsega Mishi was not contradicted. However, the Respondent’s evidence was that the deed of assignment was signed by me in the name of my son Jacob O, Ajene and witnessed by Mrs. Enayi Onu, but under cross-examination, she stated that DW1, signed the deed of assignment on my behalf. This according to counsel is a direct contradiction with the evidence of the 1st Respondent in her witness statement on oath. Counsel cited Ogunde v. Abdulsalam (2017) 43 WRN 107 on that note and submitted that the effect of this is that the 1st Respondent has no evidence of execution of the deed of assignment.
Counsel then went on to submit that the evidence of DW2 as to the due execution of Exhibit ‘F’ and ‘O’ is totally worthless and must be discarded as lacking in any probative value. It is therefore curious for the learned trial Judge to hold that the Appellant is a stranger to the transaction, while the ultimate proof of participation in a transaction for sale of landed property is the execution of the deed of assignment or any other conveyancing document. And as it stands, only the Appellant has credible evidence of execution of the deed of assignment.
Counsel submitted further that every single document used in the transaction, for example the tax clearance certificate of the assignee belongs to the Appellant. In fact, the 8th question on Exhibit ‘K’, compiled at page 89 of the records) as to who should be contacted in the event that the assignee is not available, the answer is ‘Mrs. Ramatu Okpe’ who by the admission of the DW1 under cross-examination is the younger sister of the Appellant. Counsel submitted that if the 1st Respondent had anything to do with the sale of the property in issue, her name would have at least been given as the person to be contacted if the assignee was not available.
That in view of these glaring facts, Counsel contended that if anybody is a stranger to this transaction, it is clearly the 1st Respondent as neither her name nor any particular of the assignee remotely relating to her son can be found anywhere in the entire gamut of documents before the Court, except those fraudulently generated by the 1st Respondent in order to sell the property to the 2nd Respondent.
Counsel rounded up his submission by stating that a stranger to a transaction for sale of land or any form of contract is a person that is not privy to the contract, or simply put, not a party to the transaction. In a situation where the certificate of occupancy is in the name of the Appellant and the deed of assignment is also in the Appellant’s name and executed by him, Counsel submitted that it is strange to hold that the Appellant is a stranger to the transaction for the sale of the property in issue.
1ST RESPONDENT’S SUBMISSION ON ISSUE ONE
Counsel to 1st Respondent responded to the arguments of Appellant on this issue bordering on grounds 1, 2, and 3 in his issues two, therefore I shall consider the submission of 1st Respondent’s Counsel on issue two in this regard.
Counsel submitted and urged this Court to hold that from the available evidence and pleadings on record, the trial Court was right in dismissing the claims of the Appellant before the lower Court as the Appellant failed woefully to prove his case. That undoubtedly, the subject matter of the Appellant’s case is land, and the law is crystal clear that title to land can be proved via traditional evidence, production of title documents, acts of ownership, acts of long possession as well as proof of possession of adjacent land. Counsel relied on the case of Ayanwale v. Odusami [2012] All FWLR (Pt. 610) 1246 at 1260-1261, paras. H-B where the Supreme Court laid the means of proving title to land.
In proof of title, EXH F tendered by the Appellant, and EXH O tendered by DW2 bear the name Jacob O. Ajene as the owner of the disputed land. It is in evidence unchallenged that both the Appellant and the 1st Respondent’s son bears the name Jacob Obande Ajene. Counsel then submitted that the answer to the question as to whether it is the 1st Respondent’s son’s name or the Appellant’s name that is on EXHS F and EXH O is squarely on the Appellant, and the Appellant clearly failed to discharge that burden by establishing before the trial Court that it is his name that is on both exhibits for the following reasons:
First, by the Appellant’s evidence regarding the execution of Exhibit F is incredible, it is apparent from the records before the Court that the Appellant never executed Exhibit F, as the signature on Exhibit F and that on the Appellant’s deposition (pages 8 to 10 of the Records) differs, and under cross-examination, the Appellant answered that “I have one signature.” See page 216 of the Records).
Again, Appellant’s evidence as to who acquired the property in issue is contradictory as by paragraphs 1 to 8 (pages 8 to 9 of the Records) of the Appellant’s witness statement on oath, his evidence was that he acquired the property personally and only asked Chief Ajene to send somebody to collect the certificate from the land registry. However, under cross-examination, the Appellant said “I acquired the property from Mr. Ortserga Mishi I mentioned clearly in my statement that I sent money to my late brother Prince Ogiri Ajene to acquire the property for me and he did.” (See page 216 of the Record). Counsel relied on the authority of Osadim v. Tawo (2010) All FWLR (Pt. 534) 165 para C-D on the law on contradictory evidence.
Also, from the Appellant’s evidence, he was resident in Lagos at the time of the alleged acquisition of the property in issue by him. However, in Exhibit F, the Deed of Assignment and Exhibit H the Tax clearance certificate of Jacob O. Ajene has the address on them as No. 28 Asa Road, G.R.A, Otukpo and Commissioners’ Village, Makurdi respectively and not any address in Lagos.
Again, the Appellant said he was residing in Lagos and engaged an agent to handle some aspect of the transaction for him, but the identity of the agent was not disclosed and the said agent was not called to testify as a witness. This is against the direct and positive evidence of DW1 who is central and gave credible evidence of her involvement from the negotiation stage, to purchase of the property from the original allotee and the processing of title documents at the Ministry of Lands down to possession and management of the property on behalf of the 1st Respondent.
Counsel submitted that the trial Court was right that the Appellant was a total stranger to the land transaction as mere brandishing of certificate of occupancy does not give title to land. Counsel referred this Court to the authority of Agboola v. UBA Plc & Ors (2011) LPELR 9353 (SC) and Ladoja. v. Ajimobi (2016) All FWLR (Pt. 843 1846 at 1904 -1905 paras H-E where the Supreme Court held thus:
“Documentary evidence, no matter its relevance, cannot on its own speak for itself without the aid of an explanation relating to its existence”
Counsel submitted that the mere claim by the Appellant that it is his name that is on the Certificate of Occupancy without sufficient and credible oral evidence as to how Exhibits F and D came into existence coupled with the challenge that 1st Respondent’s son also bears the name on the said documents clearly does not entitle the Appellant to a declaration of title by the trial Court as the burden to prove that he was the one who purchased the property in question and that the name on Exhibit D is his, is on the Appellant. See Intercontinental Bank Ltd v. Brifina Ltd (2012) All FWLR (Pt. 639) 1192 at 1206, para C, where the Supreme Court held that, in civil cases, the burden of proof rests on the party who asserts. See also Nwakanma v. Abaribe (2010) All FWLR (Pt. 505) 1767 at 1786, para D, cited by Counsel.
Counsel then contended that the Appellant failed to discharge the burden on him and his assertion that he is the title holder in EXH F must fail, and the learned trial Judge was right to hold that Appellant failed to prove his assertions. Counsel submitted that the Appellant wanted the Court to decide his case based on speculation which, unfortunately, the Court cannot do. Counsel referred to the Agip (Nig.) Ltd v. Agip Petroli Intl. (2010) All FWLR (Pt. 520) 1198 at 1249, paras A-C on the place of speculations and conjectures in civil suits.
Counsel submitted that Appellant’s relief 1 before the trial Court, he sought title to the property known as No. 13 Inkpi Street, High Level, Makurdi, Benue State, however, there is nowhere on record that the Appellant brought before the trial Court any title document over any property known as No. 13 Inikpi Street. Throughout the length and breadth of the records before the Court, there is nowhere that the property covered by certificate of occupancy No. BNC 4546 is referred to or described as No. 13 Inikpi Street, High level, Makurdi.
But Exhibit A before the Court and the affidavit of Ortserga Mishi described the property as “No. 13 Wailomayo West, High-level, MKD”. Exhibit F describes the property assigned therein as No.1053 Wailomayo West, High-level Makurdi. Exhibit D describes the land covered therein to be situated within “Greater Makurdi.” Exhibits A, B, D and F were all tendered by the Appellant and he relied on all, and there is nothing on record to show that No. 13 Inikpi Street High level Makurdi; No. 13 Wailomayo West High level Makurdi, and Greater Makurdi as stated in Exhibits A, B, F and D refers to one and the same plot of land. Counsel submits that these unfilled gaps and which the burden to fill is on the Appellant, leaves the Appellant’s case before the Court so perforated that it cannot hold water and the Court is urged to so hold.
Counsel submitted further that there was no relief sought before the trial Court for the Court to declare the Appellant as the title holder to the property covered by Certificate of Occupancy No. BNC 4546 and the law is established that the Court cannot grant what is not sought. See Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65
However, the only relief sought regarding Certificate of Occupancy No. BNC 4546 is relief 2, to wit: “AN ORDER of this Honourable Court directing the defendant to hand over the original title document, to wit; Certificate of Occupancy No. BNC 4546 covering the said property to the plaintiff.” Counsel submits that this relief was not made out by the Appellant as he has a duty first to show that the Certificate of occupancy No. BNC 4546 belongs to him which foundation has been destroyed by the avalanche of evidence before the Court that it was 1st Respondent who acquired the property covered by Certificate of Occupancy BNC 4546 for her son.
That the unchallenged evidence of DW1 who was involved in all the processes relating to the property in issue and the management of same after purchase from Ortserga Mishi clearly shows that the Appellant had nothing to do with the acquisition of the property but with respect, out to snatch what is not his simply because there is a name similar to his on the title documents.
Also, it is clear from the records that the 1st Respondent was no longer in possession of the Certificate of Occupancy as the property has since 2017 been assigned to the 2nd Respondent. The question that agitates the mind therefore is, can the Court order the 1st Respondent to handover to the Appellant what is not in her possession? The law cannot compel the doing of impossibilities therefore the Court is urged to hold that relief too was not made out by the Appellant and couldn’t have been granted by the lower Court.
On the 3rd reliefs sought by the Appellant, counsel submitted that the only material placed before the Court is the mere allegation by the Appellant that the 1st Respondent “removed all his title documents from her late husband’s custody and nothing more. No particulars of rent collected or tenants put in possession was pleaded or placed before the Court. The feeble attempt by the Appellant under cross-examination where he stated that initially, rent on the property was N100,000 but after investing in renovation, it went up to N400,000, with no evidence that rent was ever remitted to him cannot save the day for him.
According to Counsel the missing gaps as to for what period was rent N100,000 collected by Appellant. When was the said renovation done and where is the evidence to show the property was renovated leaves so much to be desired of the case of the Appellant. In any case, that evidence under cross-examination is evidence not supported by pleadings and goes to no issue. See Eta v. Dazie (2013) All FWLR (Pt. 683)1880 at 1891, paras B-D, it was held that “Evidence led on facts not pleaded goes to no issue and is liable to be expunged. Issues are joined on the pleadings, not on the evidence.” Therefore, in essence, the point is that there is no evidence in support of relief 3 sought by the Appellant before the trial Court and the Court was right in dismissing same.
Counsel submitted also that the 4th relief sought by Appellant is one for injunction which is an ancillary or consequential and the grant of same only depends on the grant of Appellant’s principal reliefs. Counsel relief on the authority of Nsugbe v. Okobi & Anor (2012) LPELR 24481 (CA) 30–31 Paras E–A.
Counsel also submitted that Appellant made heavy weather about affixing of passport on the forms in the file at the Lands registry. Counsel contended that those are facts elicited under cross-examination and do not flow from the pleadings of the Appellant before the Court, therefore same cannot be relied upon by the Appellant in the circumstance as the law is that evidence elicited by a party during cross-examination from the other party’s witness, which are contrary to facts pleaded by the said party, cannot be relied upon by the party in question, unless he amends his pleadings. See Anioke v. Anioke (2013) All FWLR (Pt. 658) 975 at 995, paras. A-B. 3.19.
Counsel in rounding up his submission and urging this Court to dismiss this appeal and not to interfere with the findings of the trial Court relied on the authority of Jegede v. Oleshin (2016) All FWLR (Pt. 847) 555 at 578 and submitted that the decision of the trial Court in dismissing the claims of the Appellant was based on the findings of the trial Court which were premised on the pleadings and evidence before the Court and flows directly from the facts before the Court.
2ND RESPONDENT’S COUNSEL SUBMISSION ON ISSUE ONE
Counsel submitted that the claim of the Appellant in the main is for declaration of title, therefore he must prove same by any of the means provided by law in the case of D. O. Idundun & Ors v. Daniel Okumagba (1976) 9-10 S. C. 224 at 227, and he must succeed on the strength of his case. Therefore, the Appellant having claimed that he acquired the Land from Ortsega Mishi has the burden to prove that by cogent evidence. Counsel referred to the case of Adamawa State Ministry For Lands and Survey V. Salisu (supra) at page 31 paras. A-B, per Uwa, JCA.
Counsel submitted that Appellant relied heavily on the title document in EXH F, however, the law is trite that the mere production of Certificate of Occupancy as the Appellant did before the lower Court does not, by itself, entitle the party relying on it to a declaration of title to land. And it is trite law that documentary evidence such as Exhibits D and F merely serves as hangers upon which to assess oral evidence. Documentary evidence must therefore support the oral evidence of the party tendering them. See Ukeje v. Ukeje (2014) 11 N.W.L.R (Pt. 1418) 384 at 403-404 para H-A, per Rhodes Vivour, JSC. To prove that he acquired the property in issue, the Appellant was therefore required by law to adduce oral evidence in support of Exhibits D and F, and Counsel urged this Honourable Court to so hold.
According to Counsel, the trial Court painstakingly evaluated all the evidence placed by it and found no evidence that the Appellant bought the disputed property personally, and as regards his use of an agent, the Court found that the Appellant’s evidence to that effect were contradictory of Appellant claiming in one breathe that he bought the property personally and in another breathe that he engaged DW1, and his elder brother.
Counsel then submitted that it is clear from the preceding submissions and the law that the Appellant failed woefully to establish that he acquired the property in issue, either personally or through an agent. There was therefore no credible oral evidence with which to assess Exhibits D and F the Appellant relied on in proof of title to the property as rightfully held by the trial Court that the Appellant is a stranger to the purchase of the property.
ISSUE TWO
Was the trial Court right in relying on the authority of Alliance for Democracy v. Fayose in holding that it makes no difference whether the 1st Respondent’s son is referred to a Jacob Ogiri Ajene or Jacob Obande Ajene, in view of the fact that the name on the certificate of occupancy was central to the dispute between the parties (Grounds 2, 5).
APPELLANT’S COUNSEL SUBMISSION ON ISSUE TWO
Counsel on this issue submitted that the Appellant led evidence to the effect that he proved his title to the property by production of title documents, that is the Certificate of Occupancy. That the law is well settled that a certificate of occupancy is prima facie proof of ownership of land. Counsel referred to the authority of Agboola v UBA Plc (2011) LPELR-9353 (SC).
Counsel submitted that there was no dispute that the name on the certificate of occupancy in Exhibit D, which is Jacob Obande Ajene, is Appellant’s name. There was no contention as to the genuineness or validity of the certificate of occupancy. The only contention is as to whether the 1st Respondent’s son’s name was Jacob Obande Ajene. The 1st Respondent pleaded in her defence that she bought the property in her son’s name and that her son’s name is Jacob Obande Ogiri Ajene.
Counsel submitted that Appellant challenged the 1st Respondent’s contention that her son’s name is not Jacob Obande Ajene, but Jacob Ogiri Ajene in his reply to 1st Respondent’s defence, and in processes and correspondence written by the son, he addressed himself as Jacob Ogiri Ajene. Therefore, in view of the fact that the name of the Appellant and the 1st Respondent’s son is not in contention, the central issue before the trial Court was whether the 1st Respondent’s son’s name is also Jacob Obande Ajene.
Counsel on that note submitted that it is totally absurd and inconceivable to suggest that a certificate of occupancy in respect of a property belongs to a person, other than the person whose name appears on it. Counsel reiterated the findings of the Court in the case of Agboola v UBA Plc & Ors (supra) where the Court held that “it is settled law that a certificate of occupancy regularly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof.”
Counsel then submitted further that without doubt, the holder of a certificate of occupancy is the person whose name appears on it. That the learned trial Judge was therefore in grave error when he held at page 18 of his judgment, compiled at page 311 of the records, that “it makes no difference whether the 1st defendant’s son is referred to as Jacob Ogiri Ajene or Jacob Obande Ajene.” This is because if the 1st Respondent’s son’s name, is Jacob Ogiri Ajene, then to hold that a document bearing Jacob Obande Ajene belongs to him, is clearly unfounded.
Counsel contended that the reliance of the learned trial Judge on the authority of Alliance for Democracy v Fayose (2005) 10 NWLR (pt. 932) 151 at 192 is totally misconceived, as the law is that a decision of a Court is only an authority for the fact and law in which it was decided. Where the facts are distinguishable, a Court should not willy nilly apply the decision which does not support the facts before it. See Amori v lyanda (2008) 3 NWLR (pt. 1074) 250 at 379.
Counsel gave a brief summary of facts in the case of Alliance for Democracy v Fayose (supra) and submitted that the situation is clearly distinguishable from the instant case where the 1st Respondent could not substantiate her claim that her son’s name is Obande at any point in time. Rather the 1st Respondent pleaded in suit no MHC/332/2018, tendered and admitted as exhibit `G’, that the difference between her son’s name and that of the Appellant is Obande.
Furthermore, according to counsel 1st Respondent’s answers under cross-examination as to how old her son was as at the year 2000 when the transaction took place. She answered that he was eight (8) years old. She was further asked whether her son had started school as at the time. She answered in the affirmative, and also confirmed that her son was registered in school and his school as Jacob Ogiri Ajene. However 1st Respondent stated that she did not obtain birth certificate for her son.
Counsel submitted also that the 1st respondent was being economical with the truth on this point. Assuming without conceding that her answer was true, her failure to obtain a birth certificate for a child that was born in 1992 was by itself an infraction of the law, as by the provision of the Births, Deaths, etc (Compulsory Registration) Act, the 1st respondent was bound to obtain a birth certificate upon giving the child a name.
That the failure of the 1st Respondent to produce any document to show that her son’s name was at any time Jacob Obande Ajene is fatal to their case as it would amount to withholding evidence or that no such evidence exists anywhere. And in view of the 1st Respondent’s inability to show that her son’s name was at any time, Jacob Obande Ajene, the trial Court’s finding as follows: “The plaintiff is making a mountain out of a molehill on the basis of the names (sic) of the 1st defendant’s son. It makes no difference whether the 1st defendant’s son is referred to as Jacob Ogiri Ajene or Jacob Obande Ajene” is bogus and totally absurd.
Counsel submitted that the presentation of certificate of occupancy does not entitle the claimant to a decree of title in his favour and relied on several authorities. That indeed is a correct statement of law and the circumstances in which a certificate of occupancy can be challenged are well set out in all the decisions. However, there is no authority to suggest that where a certificate of occupancy is issued in a particular name, a person who cannot show that he bears that name can claim the certificate, on the basis that the name on the certificate belongs to him. That will be antithetical to common sense and equity. Counsel relied on the clear findings in Asheik v Borno State Government & Ors (2011) LPELR-9214 (CA).
That to suggest that it does not matter whether it is the 1st Respondent’s son’s name that is on the certificate or not is preposterous, and that would mean that anybody can wake up and pick up another person’s certificate of occupancy and say that, even though it is not my name that is on the document, nevertheless it belongs to me, on the basis of some unsubstantiated oral evidence.
Counsel rounded up his submission by stating that in view of the fact that the Appellant’s name, Jacob Obande Ajene, is not in contention and it is his uncontested name that is on the certificate of occupancy, it is inconceivable for the trial Court to award the title covered by the certificate to the 1st Respondent, as she did not establish by acceptable evidence that her son bears the name on the certificate. In fact, the 1st Respondent admitted through exhibit ‘G’ that her son does not bear the name Obande. It does not end there, none of the particulars of the assignee found in the property file belongs to the 1st Respondent’s son, for example, the age of the assignee as contained in Land Form 1.A.
1ST RESPONDENT’S COUNSEL SUBMISSION ON ISSUE TWO
The 1st Respondent submissions on issue 2 formulated responded to the arguments of Appellant in issues 1, 2, 3, 4, 5, 6, and 7, therefore same is adopted and shall be considered in resolving Appellant’s submission on this issue
2ND RESPONDENT’S COUNSEL SUBMISSION ON ISSUE TWO
Counsel’s response to this issue is that Section 287 of the 1999 Constitution of Nigeria is authority on the binding nature of the decisions of Courts established by the constitution in their hierarchical order. Under the Section, decisions of the Supreme Court, the Court of Appeal, the Federal High Court, a High Court of a State and all other Courts established by the Constitution shall be enforced by Courts of law with subordinate jurisdiction to that of the higher Court. Therefore, the trial Court who relied on the superior authority in the case of Alliance for Democracy v. Foyose Supra is bound to reconsider its stand and follow the superior authority. See Nigeria AGIP Oil Company Ltd v. Nkweke (2016) 7 N.W.L.R. (PT. 1512) 588 at 617 para B-D.
Counsel then while relying on the authority of Garuba v. Yahaya (2007) 3, N.W.L.R. (Pt. 1021) 390 at 420 para C-F submitted that a judgment of a Court of law is required to show adequate perception of the facts of the case as disclosed in the evidence, evaluation of the facts, belief or disbelief of the witnesses and a finding based on the evidence accepted by the Court, and the trial Court in his findings in the instant case did justice to the evidence before her.
Counsel noted that Parties join issues on the name of the son of the 1st Respondent being same with that of Appellant and the fact that 1st Respondent went on to clarify the circumstance leading to the naming of his son as Jacob Obande Ajene and the trial Court rightly found that the entire transaction transcends to mere similarity of name and urged this Court to so hold.
Counsel rounded up his submission by saying that the fact in the instant appeal are similar to those in Alliance for Democracy v. Fayose supra and the trial Court was therefore right in applying the law in Fayose’s case by holding that it made no difference if the 1st Respondent’s son is called Jacob Obande Ajene or Jacob Ogiri Ajene, as was held by this Honourable Court in Fayose’s case.
ISSUE THREE
Did the trial Court correctly evaluate the case of the Appellant in arriving at the finding that “the case of the Plaintiff is further that the DW1 supplied the 1st Respondent’s son’s name on the said land form 1A, but attached a passport size photograph of an adult rather than the 1st Defendant’s son” thereby leading to the further finding that the appellant termed exhibit K as false? (Grounds 6 and 7).
APPELLANT’S COUNSEL SUBMISSION
Counsel commenced his argument under this issue by stating that the finding of the trial Court that 1st Respondent affixed on land form A an adult’s photograph is preposterous as that was never a part of 1st Respondent’s pleadings. That to start with, what 1st Respondent admitted doing here is illegal, and it is foolhardy to plead an illegality as a defence to a suit. It is doubtful that the land and survey ministry was aware that the passport photograph which surreptitiously found its way to form 1A, that is Exhibit K, is a fake one. If indeed they knew and allowed it, that can only amount to conspiracy to carry out an illegal act.
Counsel submitted that DW1 showed herself not to be a witness of truth, whose evidence must be disbelieved as her false evidence on oath at paragraph 3(0) of her witness Statement on Oath is as follows:
“When I informed the defendant that a passport of the defendant’s son was required to be used in the submission of the application for grant of statutory occupancy (sic) defendant gave me the passport of Christopher Ogaba Ogbaji now late, which I used on the application form and this was because the defendant’s son was at the time not of adult age.”
However, under cross-examination, DW1 stated that the age she entered for the 1st Respondent’s son on EXHIBIT K was 40 years, and that she did not know the age of the boy when she filled the EXH K. And by her evidence, DW1 stated that she had to use a fake passport photograph because the defendant’s son was not of adult age at the time. These are clear contradiction that renders the DW1’s evidence unworthy of any probative value. Counsel relied on the Supreme Court authority of Union Bank v. Clean Vision & Co. Ltd (2015) LPELR-25900(CA) on the fact that a witness who gave evidence that are contradictory cannot be treated as a witness of truth.
Counsel submitted that also the evidence of DW1 that she signed the Deed of assignment on behalf of the 1st Respondent’s son is clearly contradictory to the evidence of the 1st Respondent at paragraph 2 (P) of her statement on oath who testified as DW2 that she signed the deed of assignment on behalf of her son and DW2 was only a witness.
Counsel therefore urged this Court to declare that the evidence of DW1 and DW2 which are contradictory on the execution of the deed of assignment have concealed each other and therefore, the 1st Respondent has no evidence of the due execution of the deed of assignment. Counsel again referred this Court to the authority of Union Bank v. Clean Vision (supra), where the Court of Appeal, while relying on the Supreme Court authority of Ezemba v. Ibeneme (supra) further reproduced the Supreme Court’s pronouncement where it was stated:
“By contradicting each other the two versions of the DW2’s testimony cancel each other out as no evidence. The Court cannot choose which versions to believe and which not to believe. It must disregard the two contradicting version as unreliable”.
1ST RESPONDENT’S COUNSEL’S SUBMISSION
The 1st Respondent submissions on issue 2 formulated responded to the arguments of Appellant in issues 1, 2, 3, 4, 5, 6, and 7, therefore same is adopted and shall be considered in resolving Appellant’s submission on this issue.
2ND RESPONDENT’S COUNSEL SUBMISSIONS
Counsel submitted that Appellant’s grouse here is that the lower Court misdirected or ascribed the evidence of the DW 1 to him, which is not conceded. If so, it is submitted respectfully that under the law, the act is a mere slip in the judgment of the Court as it is capable of being amended by the Court itself, is not fundamental in nature, it does not transcend the entire proceedings and it does not go to the root of the decision of the lower Court in dismissing the claim of the Appellant. See Aregbesola v. Oyinlola (2011) 9 N.W.L.R. (Pt. 1253) 458 at 563-564 para F-B
Counsel submitted further that to succeed in this appeal on this ground, the Appellant must demonstrate to this Honourable Court that the misdirection occasioned miscarriage of justice to him in that but for the misdirection, a result more favourable to him would have been arrived at by the lower Court. However, in his submissions on this issue in Appellant’s Brief, the Appellant neither alluded to any miscarriage of justice he suffered on account of the alleged misdirection nor showed howsoever that the misdirection went to the root of the decision of the Court in dismissing his case. The misdirection remains a mere slip and cannot therefore result in the reversal of the judgment of the lower Court, and Counsel urged this Honourable Court to so hold.
That since the dismissal of Appellant’s case at the trial Court was not because of the alleged misdirection of the evidence of the DW1 to the Appellant, the misdirection has therefore not occasioned miscarriage of justice to the Appellant. That the decisions in the authorities of Ezemba v. Ibeneme and Union Bank v. Clean Vision heavily relied on by the Appellant in support of his submissions under issue 3 are no doubt sound ones but are not of any assistance to him as the facts therein are not the same with those of this appeal.
ISSUE FOUR
Is the 1st Respondent’s son a necessary party to the suit in view of the fact that no allegation of fact was made against him and he was a minor at the time of the transaction? (Grounds 8, 9).
APPELLANT’S COUNSEL SUBMISSIONS
Appellant’s complaint under this issue is that the finding of the trial Court that the son of the 1st Respondent who has attained the adult age during the institution of this suit is a necessary party is faulty. First, the trial Court did not determine the issue of what the actual name of the son of the 1st Respondent is. Counsel referred to the authority of Nyawen vs Bandon (2016) LPELR-40825 (CA) on the need for Court to determine all issues placed before it, failure to do so would fatally affect the findings of the Court. Counsel submitted that in the instant case the name of the 1st Respondent’s son is vital, yet the trial Judge failed to resolve it and even went ahead to hold that the 1st Respondent’s son is a necessary party in the case. While in Alliance for Democracy v. Fayose (supra) relied upon by the trial Court, the trial Court resolved that both Oluwayose and Fayose were both Ayodele Fayose’s surname. In this case, the trial Judge however failed to determine whether the 1st Respondent’s son’s name is Obande.
Counsel submitted that the second fault to note with the judgment of the trial Court was that the learned trial Judge seems to have lost track of the trajectory of the proceeding from the pleadings of the Appellant. It is clear they were not even aware that the 1st Respondent sold the property to the 2nd Respondent, as it was at the point the 1st Respondent wanted to tender the deed of assignment between herself and 2nd Respondent, which document was neither pleaded nor frontloaded that the Appellant objected and the learned trial Judge opined that there will be a need to join the party that purchased the property from the 1st Respondent.
Counsel contended that it is therefore curious for the trial Judge to expect the Appellant to seek the title documents from the 2nd Respondent when the issue of the second Respondent’s involvement only came to light at the end of the first defendant’s oral testimony.
Counsel submitted further that coming back to the question of whether the 1st Respondent’s son is a necessary party in the case, it is important to note that the Appellant did not make any allegation of fact against the 1st Respondent’s son, neither is there any document before the Court linking the 1st Respondent’s son to sale of the property by the original allottee to the Appellant.
On the question of who is a necessary party, Counsel relied on the authority of Katami v. Katami (2018) LPELR-46417(CA) where the Court of Appeal held as follows:
“It is trite that parties to whom complaints are made must be made parties to such action, it is an elementary procedure that in prosecuting civil claim all parties necessary for the invocation of judicial powers of the Court must come before it so as to give the Court the jurisdiction to grant the relief sought”.
Counsel contended that it is only when the Appellant has a complaint against the son of the 1st Respondent that he will become a necessary party, and by his case before the trial Court, he does not have any complaint against the son of the 1st Respondent, therefore, he is not a necessary party to the suit, as it is not the defendant’s defence that will determine who is a necessary party.
Counsel contended again that if the defence of a party throws up another party, whose presence is necessary for the determination of the case, it is the duty of that defendant to apply for that party to be joined as a third party or if such, party has sufficient interest to protect in the case it has a duty to apply to Court to be joined as an interested party. Counsel then referred the Court to the authority of B.B. Apugo & Sons LTD v. O.H.M.B (2016) 30 WRN1 at 60 on the essence of a necessary party to the just determination of a suit.
Counsel then submitted that having regards the Appellant’s pleadings, there is nothing that makes the 1st Respondent’s son a necessary party to the case, as one was of the opinion that the 1st Respondent’s son was a necessary party throughout the proceedings, especially having regard to the pleading of the Appellant that he left the title document of the property in his brother’s custody after he paid for it, and that it was upon the illness of 1st Respondent’s husband in London and that she returned home to search the house and remove all the title documents to his properties, including the title documents to the Appellant’s property in issue. Therefore the finding of the trial Court that the 1st Respondent’s son is a necessary party is wrong.
Counsel also submitted that apart from the fact that the 1st Respondent’s son was not a necessary party to the case, the Land Use Act does not even give the 1st Respondent’s son who was 8 years at the time of purchase of the land the right to purchase a landed property. Counsel referred to the provisions of Section 7 (a) of the Land Use Act, and its proviso which provides as follows:
“It shall not be lawful for the governor to grant a statutory right of occupancy or counsel to the assignment or subletting of a statutory right of occupancy to a statutory right of occupancy to a person under the age of 21 years.”
“Provided that; (a.) Where a guardian or trustee for a person under the age of 21 years has been duly appointed for such purpose…”
Counsel submitted that it is clear from the above proviso that for the 1st Respondent to purport to buy the property in issue for her minor son, she must be duly appointed as a guardian and this fact must be explicit in the deed of assignment. In other words, in view of the provision to Section 7 of the Land Use Act, the fact that the property is purportedly being bought for a minor by a guardian must be expressed in the deed of assignment and the deed of assignment must be signed by the named guardian.
That however in the instant case, there is nothing in the deed of assignment in Exhibit F to indicate that the property was bought by the 1st Respondent for her minor son. Worse still, there is no evidence of due execution of the deed of assignment by the 1st Respondent. That while the 1st Respondent stated in the evidence in chief that she signed the deed of assignment and the DW1 signed as her witness, she made a volte face under cross-examination and stated that the DW1 signed on her behalf.
Counsel submits that the case of who signed the deed of assignment was raised at address but the trial Court failed to resolve same, and that is fatal as the resolution of the issue of the person who signed the deed is clear proof that the 1st Respondent had nothing to do with the sale of the property between the original allottee and the Appellant.
Counsel rounded up his submission on this issue by stating that in any event, the issues in the case were effectively and completely determined without the presence of the 1st Respondent’s son, and that by itself means that his presence is not essential to the full determination of the case
1ST RESPONDENT’S COUNSEL’S SUBMISSIONS
The 1st Respondent Counsel submitted on issue 4 of Appellant in issue 1 of his brief. Counsel submitted that it is crystal clear from the pleadings and evidence on record that the ownership of the property situate at No. 13 Inikpi Street, High Level, Makurdi covered by Certificate of Occupancy No. BNC 4546, subject matter of litigation at the trial Court cannot be effectively determined in the absence of the 1st Respondent’s son.
Counsel submitted that this is so because the pleadings of parties made it clear that the name on the Deed of Assignment and Certificate of Occupancy Exhibits F and D is not that of the Appellant. It is also on record and explicit from Exhibits P and Q that it was the 1st Respondent’s son that assigned the property to the 2nd Respondent. These facts known to the Appellant constitute a frontal challenge that not just requires the Appellant to debunk but necessitates the presence of the 1st Respondent’s son as a party to the proceedings because any adverse order made by the trial Court will affect the rights and interests of the 1st Respondent’s son.
Counsel relied on the authority of G.W.V.S.N.L vs. N.N.L.G (2017) All FWLR (Pt. 881) 1119 at 1150, paras F-G where the Apex Court held that:
“Necessary parties are those who are not only interested in the subject matter of the proceedings but who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”
Counsel submitted that it is trite that it is necessary to join as parties all persons whose interests will be, or are likely to be, affected in a declaratory action to be joined as parties to the suit. Counsel also cited the Okorocha vs. UBA Plc (2011) 1 NWLR (Pt. 1228) 348 at 377, C-D, where it was held that “That in a declaratory action all persons whose interests will be, or are likely to be, affected should be joined as parties to the action” and submitted that indeed for the just determination of the Appellant’s case by the trial Court, the 1st Respondent’s son was a necessary party as his interest will be affected by the decision of the Court. Counsel also referred to the authorities of ADC v. Bello (2017) All FWLR (Pt. 876) 108 at 125, paras D-E; Okwu v. Umeh (2016) All FWLR (Pt. 825) 232 at 248-249 and Okoro & Anor v. Elekwanya & Anor (2018) LPELR-45071(CA).
2ND RESPONDENT’S SUBMISSIONS
Counsel submitted that Appellant’s counsel contention that the son of the 1st Respondent is not a necessary party because he does not have a claim against him is not the correct law. That the correct law is that the necessary party must be one who is either closely connected to a law suit or who is interested in the subject matter of the proceedings and in whose absence the proceedings cannot be fairly and judiciously decided. See: CBN V. STALLIONAIRE NIG. LTD (2021) 1 N.W.L.R. (Pt. 1758) 515 at 548-549 para G-A and Azubuike V. PDP & ORS (2014) 7 N.W.L.R. (Pt.1406) 292 where the Apex Court defined a necessary party as:
“A necessary party is one who, being closely connected to a lawsuit, should be included in the case, if feasible, but whose absence will not require dismissal of the proceedings…. In Green V. Green, (2001) F.W.L.R (Pt. 76) 795 at 814, this Court held that: “A necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence the proceedings cannot be fairly and judiciously be decided. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is Joined in the action…”
Counsel submitted that there is an overwhelming evidence that the 1st Respondent acquired the property in dispute in the name of her son, and it is in evidence that there is a clearly similarity between the name of the Appellant and the son of the 1st Respondent. Therefore, according to counsel, the trial Court was right to hold that the 1st Respondent’s son was a necessary party.
Counsel then submitted that despite the finding that the 1st Respondent’s son was a necessary party to the suit, under Order 13 Rule 16 (1) of the Benue State High Court (Civil Procedure) Rules, 2007, which guided the proceedings of the lower Court, the non-joinder of the 1st Respondent’s son to the suit did not require the dismissal of the proceedings. That the trial Court therefore properly proceeded with the trial in his absence and the decision of the Court is unaffected by his non-joinder.
Counsel contended that it is not correct as submitted by Appellant that the trial Court did not make a finding on issue of the name of the 1st Respondent’s son. Counsel submitted on the capacity of the 1st Respondent’s son to acquire property that may be a case of the weakening of the case of the 1st Respondent, and if it is a case of the weakening of the case of the 1st Respondent, the Appellant’s case cannot still succeed as Appellant is supposed to succeed on the strength of his case and not the weakness of the defence. See Adamawa State Ministry for Lands and Survey v. Salisu (Supra).
RESOLUTION:
Issues one and two are interwoven I shall take them together.
ISSUE ONE:
Was the trial Judge right to hold that the Appellant was a stranger to the transaction for the purchase of the subject property, having regard to the fact that his name is on the certificate of occupancy and his undiminished evidence that he signed the Deed of Assignment.
ISSUE TWO:
Was the trial Court right in relying on the authority of Alliance for Democracy v. Fayose in holding that it makes no difference whether the 1st Respondent’s son is referred to as Jacob Ogiri Ajene or Jacob Obande Ajene, in view of the fact that the name on the Certificate of Occupancy was central to the dispute between the parties.
As a general principle of law based on the doctrine of privity of contract, a contract cannot as a general rule, confer rights or impose obligations under it on any person, except the parties to it. Only parties to a contract can sue or be sued on the contract. A stranger to the contract can neither sue nor be sued on the contract: Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356, Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96 at 101 and Rebold Industries Ltd v. Magreola (2015) 8 NWLR (Pt. 1416) 210. The import of the doctrine of privity of contract is that a contract or an agreement cannot bind a person who is not a party to it nor can such person take or accept liabilities under the contract or agreement nor benefit thereunder.
In the instant case, the Appellant anchors his contention on the fact that he executed the deed of assignment in the presence of the assignor, Mr. Ortsega Mishi and the relevant documents the deed of assignment and certificate of occupancy both bear his name that is exhibits D and F. Now as rightly observed by the learned trial Judge, the mere use of a name in a transaction does not confer a right on the Claimant (Appellant). There must be positive evidence of acquisition of a property either by the Claimant or an agent on his behalf. No such evidence has been led in support of the Plaintiff’s claim. It is not the law that upon production of a Certificate of Occupancy a Court must decree title in favour of such a Claimant. I agree with the learned trial that the entire transaction transcends to a mere similarity of names or names. The evidence of the 1st Respondent both her witness statement on Oath and under cross-examination is that she is the mother of Jacob Ogiri Ajene, that he is also known as Jacob Obande Ogiri Ajene, that her father-in-law named her son after his friend JC Obande who died about the time she gave birth to him, she said her husband added Ogiri to the name and that is why her son is known and called Jacob Obande Ogiri Ajene. See pages 48 and 221 of the records. In my considered but humble view, anybody who fancies a name or title for whatever reason is free to adopt same. Even within the same family, the same name is used by different members of the same family, as often as the members of the family want or others outside the family as they desire. In OFFOBOCHE V OFFOBOCHE (2006) 13 NWLR (Pt. 997) Page 298 at 304 para. E and 306 para. B. the Court held: ‘’No person, group of persons or family has a monopoly of names. Persons have unrestrained liberty to pick and choose names that please them….No legislation in Nigeria restricts a person to a fixed number of names. In effect, even if names are identical or same, no person in Nigeria has a legal right to restrain another person from answering or bearing those names’’ In Alliance For Democracy v. Fayose & Ors (2005) 10 NWLR (Pt.932) 151 at 192-193 cited and relied upon by the lower Court, per Nsofor JCA stated: ‘’And I ask what really is in a name culldcus non facit monachum now ‘name’ derived from Latin nomen nominis in its form (see Chambers Twentieth Century Dictionary at Page 875) is defined to mean ‘’That by which a person or a thing is known or called, a designation. Of what concern or to whom does it matter if ‘A’ choses to be called or known by many; or very many names. I confess that I know of no legislation or a decree in Nigeria restricting any person(s) to a number of names he may be called or known by. No such law………’’ The Appellant is capitalizing on the similarity of name without more that cannot confer title to him, no evidence in support of his claim he want to reap the fruits of a transaction in which he was not shown to be involved in, the case of Alliance for Democracy v. Fayose & Ors (Supra) relied upon by the learned trial Judge is useful and applicable to the case at hand contrary to the submission of learned Counsel for the Appellant. Thus issues one and two are hereby resolved against the Appellant.
ISSUE THREE:
Did the trial Court correctly evaluate the case of the Appellant in arriving at the finding that “The case of the Plaintiff is further that the DW1 supplied the 1st Respondent’s son’s name on the said land form 1A, but attached a passport size photograph of an adult rather than the 1st Defendant’s son” thereby leading to the further finding that the Appellant termed exhibit K as fake.
Evaluation of evidence is the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356 at 379.
The law is trite that an Appellant who complains that the decision of a trial Court or Tribunal is wrong or perverse for lack of adequate or proper evaluation of oral and documentary evidence placed before the trial, must prove or establish that the Court of trial made improper use of the opportunity of seeing the witnesses testified before him. The Appellant must demonstrably show that there was misapplication of the oral and documentary evidence tendered and proffered before the trial Court. He must show that the relevant laws or decisions on the subject matter before the trial Court were misapplied or misconstrued. He must show above all that the wrong inferences or wrong evaluation of the pieces of evidence before the trial Court have led to miscarriage of justice making it imperative for the Appellate Court to intervene and re-evaluate the oral and documentary evidence. In Mrs. Elizabeth Irabor Zaccala v. Mr. Kinsley Edosa & Anor (2018) 6 NWLR (Pt. 1616) 528 at 545 paragraphs B-D per M.D. Muhammad, JSC Stated: “It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC).’’
In Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471 this Court held that:
‘’An Appellant who appeals on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. The 1st respondent’s appeal to the lower Court was on the basis of proper/non-evaluation of documentary evidence. Exhibit A and P.’’
It should be noted that it is not every error or slip by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. In the instant appeal can it be said that the learned trial Judge did not evaluate the evidence of the parties. I don’t think so at page 309 of the record the learned trial Judge stated inter alia ‘’The claim of the Plaintiff is founded on a purchase. Curiously however, it is not evident that the Plaintiff participated in any aspect of the transaction culminating into the conveyance as evidenced in Exhibit F, the Deed of Assignment. Other than the ipse dixit of the Plaintiff on the basis of the name on Exhibit D, the Certificate of Occupancy, there is nothing to support his claim to the effect that he purchased the said property. The said Mrs. Enai Onu (DW1) who the Plaintiff claimed was engaged by his late brother as an agent and still alive and was in Court, gave evidence in favour of the 1st Defendant. Her evidence does not link the Plaintiff to the acquisition of the property in dispute but rather the 1st Defendant. She made it point-blank when she stated under cross-examination thus: ‘’I knew the defendant’s late husband. I never ran errands for him. He was not the person that directed the defendant to engage in this land transaction.’’ Even at that, the Plaintiff’s case was sure-footed. The reason is obvious. The Plaintiff spoke from both sides of his mouth when he again stated under cross-examination thus: ‘’I sent money to my late brother to acquire the property for me and he did….’’ The question is who as between the agent of the Plaintiff who allegedly handled ‘some aspect of the transaction’ and his late brother acquired the property in question on behalf of the Plaintiff? The Court is not in a position to pick and choose between the two versions. The evidence to that effect coming from the Plaintiff therefore pales into insignificance… Exhibit D stems from the same process Plaintiff styled as ‘’fake’’, but the Plaintiff seeks to take benefit of same for reasons that it is his name that is contained therein and not that of the 1st Defendant’s son. The same processes Plaintiff impugned is the same process he seeks to rely on otherwise no other process leading up to the issuance of Exhibit D has been placed before me. Plaintiff cannot approbate and reprobate at the same time.’’ The law does not permit the Appellant to blow hot and cold at the same time. From the foregoing, there is no justification by this Court in disturbing the clear findings of the trial Court as it was supported by evidence not perverse or amount to a miscarriage of justice, the allegation of conspiracy to carry out an illegal act made by the Appellant is a criminal offence which does not fall within the realm of civil matter more so the issue of commission of crime and illegality was not raised and argued at the lower Court and pronouncement made upon it and no leave of this Court was sought and obtained to raise this issue. The settled position of the law which remains inviolate is that a Court is strictly bound by the case presented to it as postulated on the pleadings of the parties. Thus parties are bound by their pleadings just as the Court seized of the matter is bound to make its findings only within the scope of the parties’ case as pleaded. It does not lie in the province or powers of the Court to make case for the parties. For the foregoing reasons issue three is hereby resolved against the Appellant.
ISSUE FOUR:
Is the 1st Respondent’s son a necessary party to the suit in view of the fact that no allegation of fact was made against him and he was a minor at the time of the transaction?
Parties to proceedings are broadly categorized into three: desirable party; interested party and necessary party; desirable party is the party who has an interest in or who may be affected by the result of the action. A person who has an interest in an action which has two distinct rights, viz: the right to apply to be joined as a party in the trial Court and the right to seek leave to appeal pursuant to Section 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
His failure, refusal or neglect to pursue his right in the trial Court will not bar him from seeking and obtaining leave against a decision which is detrimental to his interest. See Jadesimi v. Okotie-Eboh; In re Lessy (1989) 4 NWLR (Pt. 113) 113 at 128-129. Interested party is a person who could have been joined as a party to the suit. It includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. See Section 243 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). E.F.P Co. Limited v. NDIC (2007) 9 NWLR (Pt. 1039) 216 at 251. Necessary party on the other hand is a person who is not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with. See Jadesimi v. Okotie-Eboh; In re Lessy (Supra) page 133 at 126. A necessary party is a person who will be bound by the result of the action; the question can’t be effectually and completely settled unless he is a party. Ojo v. Ogbe (2007) 9 NWLR (Pt. 1040) 542 at 551. Its someone whose presence is essential for the effectual and complete determination of the issue before the Court. It is a party in the absence of whom claim cannot be effectually and completely determined in such a way as to bind him. See Adeleke v. Oyo State House of Assembly (2006) 10 NWLR (Pt. 987) 50 at 81. A person is a necessary party to an action where it is desirable that he should be bound by the result and where the question in controversy cannot be effectually and completely settled unless he is a party. Adefarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89n at 116-117. In any proceeding, necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with. See Biyu v. Ibrahim (2006) 8 NWLR (Pt. 981) 1 at 35.
In this appeal, it is beyond dispute that the 1st Respondent’s son is a necessary party evidence from the record of appeal clearly show that the 1st Respondent acquired the property the subject matter of this action in the name of her son. At page 48 of the records the 1st Respondent in her witness statement on Oath stated in paragraphs 2( k)and( I) as follows:
2(k) ‘’I acquired the property at No 13 Inikpi Street High Level Makurdi from one Ortserga Mishi in 2000, through the agency of Mrs. Enayi Onuh, a civil servant with Benue Agricultural and (Rural Development Agency (BNARDA) the name of my son Jacob Obande Ajene who was then yet to attain the age of maturity.
2(i) ‘’In acquiring the property in question, I specifically gave Mrs. Enayi Onuh the name Jacob O. Ajene as the name to be used in the Deed of Assignment between her and Mr. Ortserga Mishi.’’
See also page 59 paragraphs 3 (d) and (e) of the records statement on Oath of DW1 Enayi Onuh and page 128 paragraphs 15 and 16 of the records witness statement of DW2 the 2nd Respondent. The name in the Deed of assignment and Certificate of Occupancy bears the name of the 1st Respondent’s son See Exhibits D and F. These facts are known to the Appellant yet the 1st Respondent’s son was not joined. The 1st Respondent’s son is a necessary party and I agree with learned counsel for the 1st Respondent that the non-joinder of the 1st Respondent’s son affects the competency of the Appellant’s suit. The law is that where a necessary party is not joined in the case, the Court or Tribunal lacks jurisdiction to entertain and determine it. See Chief Maxi Okwu & Anor v. Chief Victor Umeh & Ors (2016) LPELR-26042 (SC) Pages 18-22, paragraph A.
The learned trial Judge put it succinctly at page 312 of the record when he stated:
‘’The first relief Plaintiff seeks is a declaration that, he is the title holder in and over land appropriately described as No 13 Inikpi Street, High Level Makurdi; an order directing the 1st Defendant to hand over to him the title documents over plot No. BNC 4546; an order for account and injunction. Even though Jacob Obande Ajene or Jacob Ogiri Ajene was a minor at the time Exhibit D was made, in 2004, he attained the age of maturity at the time this suit was instituted. He is therefore a necessary party. Secondly, by the time this suit was instituted, the property that forms the subject matter passed to 2nd Defendant. Rather than seek the return of the title documents from 2nd Defendant, the case of the Plaintiff as it stands seeks a declaration against 1st Defendant who does not have. Either way, the case of the Plaintiff is a non-starter.’’ In the light of all that I have said above and for the reasons given, I hold that failure to join the 1st Respondent son amount to an exercise in futility thus issue four is resolved against the Appellant.
In the result, the Appellant’s appeal is completely lacking in merit having resolved issues 1-4 against the Appellant.
The Appellant’s appeal is hereby dismissed in toto. The judgment of the lower Court Coram. AONDOVER KAKA’AN, CJ. Delivered on the 30th day of June, 2020 in Suit No MHC/376/2018 is HEREBY AFFIRMED.
Parties to bear their Cost.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft, the lead judgment just delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and I am in complete agreement with his reasoning and conclusions on all the issues distilled for determination.
In the result, the Appellant’s appeal is completely lacking in merit, having resolved Issues 1-4 against the Appellant. The Appellant’s appeal is hereby dismissed. I abide by the order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I entirely agree with the reasoning and conclusion reached therein.
My learned brother has aptly and elaborately dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is lacking in merit and should be dismissed. The judgment of the trial Court, delivered by Hon. Justice AONDOVER KAKA’AN CJ, dated 30th day of June, 2020 in suit No. MHC/376/2018 is hereby affirmed.
Appearances:
J.O. Ewureje, Esq. For Appellant(s)
O.D. Obande, Esq. – for 1st Respondent
Nathans Gwebe, Esq., with him, T.M. Nule, Esq., and L.T. Ayarnum, Esq. – for 2nd Respondent. For Respondent(s)
