ALHAJI MUSIBAU MAJOLAGBE & ANOR v. MADAM ASHAKE PEREIRA & ORS (2013)

ALHAJI MUSIBAU MAJOLAGBE & ANOR v. MADAM ASHAKE PEREIRA & ORS

(2013)LCN/5866(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of January, 2013

CA/L/183/09

RATIO

PLEADINGS: IT IS A PARTY’S PLEADINGS THAT DETERMINE HIS LINE OF EVIDENCE AT TRIAL

First of all, a cardinal principle of pleadings is that, it is the party’s pleadings which defines his line of evidence at the trial of an action in court, therefore averments in pleadings without evidence adduced thereon by the party who pleaded such facts, go to no issue as no onus is cast on the other party, to disprove facts not established by evidence. See: Kate Enterprises Ltd. V. Daewoo (Nig) Ltd. (1985) 2 NWLR (Pt.5) 115; (1985) 7SC1; (1985) 2 NSCC 842; Midford Edomsowan V. Kenneth Ogbegun (1996) 2 SCNJ 21 at 33; (1996) 36 LRCN 432; (1996) 4 NWLR (Pt.442) 266; Ibrahim V. Ojomo & Ors. (2004) 11 WRN 1, (2004) 4 NWLR (Pt. 862) 89 (2004) All FWLR (Pt. 190) 285 (2004) 4 MJSC 143; (2004) 1 SCNJ 309; (2004) 1 SC (Pt. 11) and Abubakar V. Joseph & Anr. (2008) 50 WRN 1, (2008) 6 SCNJ 226; (2008) All FWLR (Pt.432) 1065.PER SIDI DAUDA BAGE, J.C.A.

MATERIAL EVIDENCE: WHAT IS MATERIAL EVIDENCE

What then is a Material Evidence? It is the law that material evidence is evidence which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. The Supreme Court in the case of Nasamde vs. The State (1979) 6 SC 153, 158 – 159 stated as follows:
“It is well settled that only a contradiction in respect of a material fact would make a court doubt the evidence and what is material will depend upon the facts of the particular case.”
See also on this the case of Ikemson V. the State (1989) 3 NWLR (Pt. 10) 285.PER SIDI DAUDA BAGE, J.C.A.

COURT: THE PRIMARY DUTY OF THE TRIAL COURT IS THE EVALUATION OF EVIDENCE

On the issue of evaluation of evidence, the Supreme Court had provided the guide. See: Eze Ibeh V. The State (1977) 1 SCNJ 256 at 271 per Wali JSC (as he then was). It was stated as follows:
On evaluation of evidence, I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and age-long judicial policy in this country that the evaluation of evidence called at trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. See: Balogun & Ors. V. Alimi Agboola (1974) 1 All NLR (Pt. 2) 66, The Military Governor of Western States V. Afolabi Lanibe & Anr. (1974) 1 All NLR (Pt.2) 179 for this reason, there is a presumption that a trial judge’s decision on facts is correct – a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the Court of trial. See: Ajao V. Ajao (1986) 5 NWLR (Pt. 45) 802 and Kponuglo V. Adjakodaja (1933) 2 WACA 24.PER SIDI DAUDA BAGE, J.C.A.

APPEAL: A DECISION NOT APPEALED AGAINST REMAINS EXTANT AND BINDING
Since the Appellants have not appealed against that decision, so it remains extant and binding. See: Akere V. Governor, Oyo State (2012) All FWLR (Pt. 634) 53 at 81; All Progressive Grand Alliance (APGA) & Anr. V. Chief Victor Ume (2011) 3 SCNJ 274; Calabar v. Ekpo (2008) 2 SCNJ 307 at 324-325.PER SIDI DAUDA BAGE, J.C.A.

LOCUS STANDI: HOW THE COURT DETERMINES WHETHER OR NOT A PARTY HAS LOCUS STANDI

Before drawing the curtain on this issue, let me say a few words on the subject of the locus standi to sue. In determining the issue of locus standi the court must pay attention to rights of parties to appear either to establish their right or to defend that right against any injury actual or threatened. See: Chief Dr. Irene Thomas & Ors. V. The Most Reverend Timothy O. Olufosoye (1986) 1 NWLR 669 at 691; Chief Abusi David Green v. Chief Dr. B. T. Dublin Green (1987) 7 SCNJ 255 at 277.
In sum, I resolve issue 1 against the Appellants and in favour of the Respondents.PER SIDI DAUDA BAGE, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

(1) ALHAJI MUSIBAU MAJOLAGBE
(2) ALHAJI SARUMI Appellant(s)

AND

(1) MADAM ASHAKE PEREIRA
(2) MR. KEHINDE ADE HOTONU
(3) ABIODUN OLUBO
(For themselves and representatives of the descendants of Pa. Samuel Abiola Hotonu) Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the Lagos High Court, Hon. Justice A. J. Coker, delivered on the 17th of October, 2008. The Respondents herein (then Claimants) filed a Writ of Summons dated the 24th day of September, 2003 at the High Court of Lagos State, Lagos Division (hereinafter referred to as THE LOWER COURT), against the Appellant’s (then Defendants).

Upon being caught up by the High Court of Lagos State (Civil Procedure) Rules 2004, the Respondents (then claimants) complied by filing their Statement of Claim dated the 24th day of May, 2004 and other processes wherein they claimed the following reliefs against the Appellants (then Defendants) as follows:

(a) Rents of 5 rooms due from the 1st Floor of the building at 71B, Docemo Street, Lagos at the rate of N50,000.00 per year from 1st January, 2004 to 31st December, 2005.

(b) Possession of the 3 storey building at No.71B, Docemo Street, Lagos at the expiration of the Agreement granted to the 1st Defendant on the 1st day of December, 2005.

(c) N500, 000.00 (Five Hundred Thousand Naira only) General Damages to the Plaintiffs from the Defendants (page 5 of the Record of Appeal).

The Appellants (then Defendants) filed their Statement of Defence dated the 13th day of January, 2005. The Respondents (then Claimants) thereafter filed their Reply to Statement of Defence dated the 28th day of April, 2005. Trial was thereafter commenced and eventually concluded on the 17th day of October, 2008, judgment was entered in favour of the Respondents (then claimants) granting all their reliefs sought. Being aggrieved by the judgment of the Lower Court as mentioned above, the Appellants (then Defendants) hereby brings this Appeal.

In pursuance of the Prosecution of the Appeal, Appellant’s Brief of Argument settled by Ademola Solesi Esq., dated and filed the 24th of June, 2009.
Two issues were distilled for determination as follows:

(1) Whether the learned trial judge at the lower did not err (with all due respect) on the side of improper or non-evaluation of material evidence to justify the setting aside of the judgment entered on the 17th day of October, 2008?

(2) Whether the Respondents are entitled to the reliefs sought at the lower court.

The Respondent’s Brief of Argument dated and filed on 16th October, 2009 was settled by L. A. Omar Esq. He adopted the two issues as formulated by the Appellants in their Brief of Argument to wit:-

(1) Whether the learned trial judge at the lower court did not err (with all due respect) on the side of improper or non-evaluation of material evidence to justify the setting aside of the judgment entered on 17th day of October, 2008?

(2) Whether the Respondents are entitled to the reliefs brought at the Lower Court?

In arguing this Appeal, learned counsel to the Appellant submitted that the testimonies of C.W.1 and C.W.2 were not properly evaluated based on the material and other facts available before the trial court. See: – Nduka v. Izundu (2007) 1 NWLR (pt. 1016) 432 at 449 paras. H – A.
Learned counsel further submitted that, the Respondents had the burden to satisfy the Court “that they have had locus standi to sue” in doing so they can only rely on the strength of their case and no more, being the claimants. See: – C.D.C. (Nig.) Ltd v. SCOA (Nig.) Ltd (2007) 6 NWLR (Pt 1030) 300 at 327 para. B.
Learned counsel further submitted that where the evidence is at variance with pleadings as is the case with the present appeal, such evidence goes to no issue. See evidence of C.W.2. Also see Yusuf V. Adegoke (2007) 11 NWLR (Pt. 1045) 332 at 358 paras. D – F; Emegokwe V. Okadigbo (1973) 8 N. S. C. C. 220 at 222. The Court should have disregarded the evidence of C.W1 and C.W2. See also Kwagshin V. State (1994) 2 NWLR (Pt. 328) 592 at 615 para. E. The decision of the learned trial judge would have been different if the contradictions of C.W1 and C.W2 were properly evaluated.

In reply to the submissions above, the learned counsel to the Respondent submitted that, there is the testimony of C.W1, C.W2 before the Lower Court stating their relationship or nexus with their late progenitor, Samuel Abiola Hotonu, evidence are before the lower court that the Respondents (then Claimants in the lower court) entered an agreement with the 1st Appellant (then 1st Defendant in the lower court) and when he refused to give the said agreement to the Respondent an action was instituted against him before Adeyinka J. in which judgment was delivered, it was on record that the 1st Respondent did not defend the said judgment and was not appealed against. The Respondents gave evidence that they gave their property to the 1st Defendant (now 1st Appellant) for development and that was not disputed by the Defendants (now Appellants) which showed that the Respondents had the locus to institute the action at the lower court. See: – Abraham Adesanya V. President of the Fed. Rep. of Nig. & Anor. (1981) 2 NWLR 385.

Learned counsel submitted further that, the Appellants raised the issue of locus standi during the Pre Trial Forum before the lower court and justice Ojikutu – Oshode ruled against the Appellants. The Appellant also brought an Application for Stay of Proceeding also during the Pre-Trial Forum which was also ruled against and filed a Notice of Appeal which was not pursued. The Appellants now raised this same issue before this court. They are estopped from raising this issue again. See: – Inakoju & Ors. V. Adeleke & Ors. (2007) 1 S.C (Pt.1) 1; Anwoyi V. Shodeke (2006) 2 S.C 38.
Learned counsel submitted further that, the Respondents sought and are being granted leave to sue in the representative capacity without objection from the Appellants the onus lies on the Appellants to prove that the Claimants are not who they say they are. See Section 135 (2) Cap. 112 of the Evidence Act. Also see Ezemba V. Ibeneme & Anr. (2004) 7 SC (Pt.1) 45; NNPC V. Lutin Invest. Ltd. (2006) 1 SC (Pt. 111) 459 at 478.

Learned counsel submitted further that there was no such evidence before the lower court, the Appellants did not dispute the membership of the 1st Claimant now Respondent and this was confirmed in the evidence of DW1. The 2nd & 3rd Respondents herein, the judgment of Adeyinka J., the 2nd Respondent was the same person that sued as the 1st Defendant now 1st Appellant herein. He never defend the suit talk less of denying signing the agreement dated 31st December 1985 which Adeyinka J., said he should release to the Claimant DW.1 the Defendant’s star witness.
Learned counsel submitted further that the lower court properly evaluated all material evidence before it and that the decision of the lower court was right in given judgment to the Respondents. All authorities cited by the Appellants are not in their favour.

On the part of the court, the submission of counsel is carefully examined. The main contention of the Appellants in this issue, relates to the improper or non – evaluation of material evidence by the trial court. The Appellants had argued that the court ignored material contradictions made by the Respondents in their bid to establish their interest and/or title to the property known as 71B, Docemo Street, Lagos, stated in paragraph (1) of their Statement of Claim (page 3 of Record of Appeal) as follows:

The 1st Plaintiff is a grandchild of Late Pa Samuel Abiola Hotonu through her mother, Madam Lola, the 3rd Plaintiff also a grandchild of Late Pa Samuel Abiola Hotonu through his grandmother Oladunni while the 2nd Plaintiff is Cousin to Olatunji Hotonu who gave him his share of property known as NO. 71B, Docemo Street, Lagos.

The Respondents however, contradicted the above cited averment in paragraph (2) of their Reply to Statement of Defence (page 94 of the Record of Appeal as follows:

“In reply to paragraph 3 of the Statement of Defence, the Claimants state that the 3rd Claimant is son of Mrs. Moji Olubo Nee Thompson daughter of Shiyanbola…”

The implication of the above inconsistence is that the 3rd Claimant has two grandmothers in the same Hotonu family to wit, Oladunni and Shiyanbola. The Appellants have argued that the 3rd Claimant who also testified as C.W2 is not a member of Pa Samuel Abiola Hotonu and therefore without the requisite locus standi to sue.
Furthermore, the 2nd Claimant who averred in their Statement of Claim and Reply to Statement of Defence as a Cousin of Olatunji Hotonu “who gave him his share of property known as No. 71B, Docemo Street, Lagos” (pages 3 & 94 of the Record of Appeal) has this to say on Cross-Examination:

“… I am not a grandchild of Oladunni, Siyanbola Olanipekun but I am a grandchild of Olatunji (page 191 of the Record of Appeal).”

It is therefore, apparently incredible that the 2nd Claimant is a Cousin of Olatunji Hotonu and at the same time his grandchild. The above evidence is at variance with Pleadings and same goes to no issue.

Again in reply, the Respondents maintained that at the lower court the Appellant did not dispute the membership of 1st Claimant now Respondent and it was even confirmed in the evidence of Madam Comfort Hotonu D.W1. Regarding 2nd & 3nd Claimants now Respondents herein the judgment of Adeyinka J., the Claimant was the same person that sued the 1st Defendant now 1st Appellant herein. He never defended the suit talk less of denying signing the agreement dated 31st December 1985 which Adeyinka J., said he should release to the Claimant now D.W1 the Defendant’s star witness. The lower court properly evaluated all material evidence before it, before arriving at its decision.

The contention before this court is not as to fact that the Claimants who are now Respondents before this court, did not lead evidence as to the averments contained in their statement of claim, it is not disputed that they did. What the Appellants are contending here is that, the trial court erred on the side of improper or non-evaluation of the material evidence placed before it. The Appellants dwelt on the contradictions in the reply to the Statement of Defence and Cross-examination.

Now with respect to the fact in issue, is the property known as No. 71B, Docemo Street, Lagos. The Claimants now Respondents had laid their claims with respect thereof. The Appellant did not pay attention to the substance of the claim as put before the trial court. The concern of the Appellants is as to failure of the trial court to pay attention to those contradictions made by the Claimants as to their linkage with their progenitor Pa Samuel Abiola Hotonu. The Appellants did not pay attention to the real issue between the parties (especially 1st Appellant) which is the agreement entered between the Claimants now Respondents. It was this agreement that gave way to action instituted before Adeyinka J., in which judgment was delivered. It was on record that the 1st Appellant did not defend the said judgment and was not appealed against. This is the material evidence placed before the trial court. Furthermore, the Respondents gave evidence that they gave their property to the 1st Defendant (now 1st Appellant) for development and that was not disputed by the Defendants (now Appellants) which showed that the Respondents had the locus to institute this action at the trial court.

The Appellants herein, are complaining of improper or non-evaluation of material evidence. Earlier on, this court, had identified the material evidence that was placed before the trial court which was the agreement entered between the parties, for the development of the property. The Appellants even with respect to this Appeal had remained silent on the terms or of the existence of the said agreement. On the issue of evaluation of evidence, the Supreme Court had provided the guide. See: Eze Ibeh V. The State (1977) 1 SCNJ 256 at 271 per Wali JSC (as he then was). It was stated as follows:
On evaluation of evidence, I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and age-long judicial policy in this country that the evaluation of evidence called at trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. See: Balogun & Ors. V. Alimi Agboola (1974) 1 All NLR (Pt. 2) 66, The Military Governor of Western States V. Afolabi Lanibe & Anr. (1974) 1 All NLR (Pt.2) 179 for this reason, there is a presumption that a trial judge’s decision on facts is correct – a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the Court of trial. See: Ajao V. Ajao (1986) 5 NWLR (Pt. 45) 802 and Kponuglo V. Adjakodaja (1933) 2 WACA 24.

In the present Appeal, this Court is unable to find facts as prescribed by the Appellants to upset the decision of the trial court. The real issue before trial court was for claims of rent monies collected and for possession of the 3 storey building. The question of the status or relationship of the Respondents traceable to their progenitor was not the real issue. It was stated that an agreement was struck between the parties for the development of the property, and a valued decision of the court given with respect thereof and was not appealed against.
Since the Appellants have not appealed against that decision, so it remains extant and binding. See: Akere V. Governor, Oyo State (2012) All FWLR (Pt. 634) 53 at 81; All Progressive Grand Alliance (APGA) & Anr. V. Chief Victor Ume (2011) 3 SCNJ 274; Calabar v. Ekpo (2008) 2 SCNJ 307 at 324-325.

On issue No. 2, whether the Respondents are entitled to the reliefs sought at the lower court.
Learned counsel to the Appellants submitted that it is their contention that the Respondents (then Claimants) never showed on preponderance of evidence that they are exclusively entitled to the property known as No. 71B, Docemo Street, Lagos. The mere probative evidence is the fact that the aforesaid property is a family property jointly owned by both family lines as there is no document of transfer, neither any Will nor Letter of Administration transferring same to any particular family members. Exhibit C7 Survey Plan No. T14/1957 of 20/3/57 relied upon by the Respondents as a proof of their exclusive possession or ownership of No. 71B Docemo Street, Lagos, is not a title document and cannot be relied upon for that purpose. It is therefore trite that a Survey Plan is only relevant where the location of a disputed Land or property is in issue, and in this instance such is not the case. See: Kankia V. Maigemu (2003) 6 NWLR (Pt. 817) 496 at 525 Para. C.

Learned counsel submitted further that the Respondents having not shown a Letter of Administration or Probate, by extension could not have proved that they are exclusively entitled to the properly under reference. See: the Administrators/Executors of Estate of General Sani Abacha (Deceased) v. Eke-Spiff & 3 ors. (2009) 7 NWLR (pt. 1139) 97. Furthermore, Exhibit C.1 – copy of Building Agreement dated the 1st day of November, 1983 gives credence to the fact of property in issue is jointly owned as opposed to the claim of “exclusive ownership”.

Learned counsel further submitted that, the incoherence of the Respondent could be gleaned even from the reliefs sought by them at the trial court. The Appellants are developers and nowhere did the Respondents accuse them of trespass or of being meddlesome interlopers. It is clear and undisputed that it is the existing Building Agreement between the Appellants and Hotonu family that brought them on the property, a fact glaringly available before the trial Judge who decided to discountenance same. The Respondents never discharged the onus on them to show their entitlement to the reliefs sought, to the exclusion and detriment of other family members. We urge this court to resolve this issue in favour of the Appellants.

In reply the learned counsel to the Respondents submitted that, the Respondents have discharged the burden on them from the preponderance of evidence before the Lower court and need no further proof on their claim. See: Total Nig. Plc v. Chief A. M. Morkan (2002) 9 NWLR (Pt.773) 492. The law is well settled that the onus is on the claimants to prove his case on preponderance of evidence or the balance of probabilities which the Respondents then claimants have done. See: Mogaji V. Odofin (1978) 4 SC 91; Owie V. Ighiwi (2005) 1 SC (Pt. 11) 16 at 35; Amadi V. Orisakwe (2005) 1 SC (Pt.1) 48.

This court examines the submissions on both sides. A complaint that a judgment is against the weight of evidence is tantamount to a challenge against the weighing of the pieces of evidence proffered by the parties, by the trial court and that it was wrongly done by him. Hence, the totality of the evidence led in the action by both parties are put on an imaginary scale, the scale of justice, and weighed together. The admissible and relevant pieces of evidence for the Plaintiff and that for the defendant are put on each side of the scale respectively and weighed together, in order to determine whose evidence weighs more or is heavier than the other. That is, the side to which the scale of justice tilts to and preponderates of course, this will not depend upon the quantity/number of witnesses who testified for each side, but by the quality or probative value of their pieces of evidence. That is why it is the law in civil actions proof of a claim is on a balance of probability.
In Mogaji V. Odofin (1978) 4 SC 91, his lordship Fatayi Williams, JSC (as he then was) stated the law succinctly, that:
When an Appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent the judgment given in favour of the Respondent is against the weight which should have been given to the totality of the evidence before him.
This same principle was re-echoed by the Apex Court in Abusi Ekwealor & ors. v. Vincent Ekwealor & ors. (1993) 6 NWLR (pt. 302) 649.

The action at the court of trial was fought largely on the agreement entered between the Appellants (then Defendants) who by their own admission are developers, and the Respondents (then claimants) who entered those agreements and engaged them. The Appellant maintained that in that position as developers, the Respondents did not accuse them of trespass or being meddlesome interlopers. This fact alone as stated by the Appellants themselves is enough to sway this court to accept the argument put by the Respondents that their claim against the Appellants was based a relationship covered with an agreement which they had obtained judgment earlier in respect thereof before Adeyinka J. This fact was neither challenged nor denied by the Appellant. Placing the two sides on an imaginary scale no doubt the position of the Respondents out weights that of the Appellants. In view of the above this court agrees with Adenike J. Coker (Mrs.) in her judgment of the 17th October, 2008, on page 14 of the records.
Wherein she stated as follows:-

In the light of the foregoing and on the totality of the evidence, this court must find and hold that upon the preponderance of the evidence before the court, the claimants have satisfactorily discharged the burden on them and are entitled to the reliefs as claimed accordingly, Judgment is therefore entered in favour of the Claimants for all their reliefs accordingly.

In view of the above therefore, issue No. 2 is resolved against the Appellants and in favour of the Respondents. Having therefore resolved the two (2) issues in this Appeal in favour of the Respondents and against the Appellants, the Appeal is devoid of any merit, and is hereby dismissed by this Court.

The judgment of Adenike J. Coker (Mrs.) in suit No. LD/2006/2003, of the High Court of Lagos State, in the Lagos Judicial Division (Family & Probate Division) delivered on the 17th of October, 2008, is hereby affirmed by this Court.
Costs is awarded at N50, 000.00 in favour of the Respondents and against the Appellants.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother Sidi Dauda Bage, JCA and I am also of the view that the Appeal lacks merit and should fail. My learned brother covered the field in his reasoning and conclusion and I have nothing useful to add than to say that the Appeal should be and is hereby dismissed. The Judgment of the lower court delivered on 17-10-08 is hereby affirmed.
I also abide by the consequential orders made in the lead judgment including that of costs.

TIJJANI ABUBAKAR, J.C.A.: I read the judgment just delivered by my learned brother Sidi Dauda Bage, JCA. I am in agreement with the reasoning and conclusion and adopt same as mine.
Appellants’ appeal having been adjudged lacking in merit is also dismissed by me.
Judgment of Adenike J. (Mrs) of the High Court of Lagos State in suit No. LD/2006/2003 is affirmed.
I also award N50, 000 cost in favour of the Respondents.

Appearances

G. C. DURU WITH O. A. ADELEYEFor Appellant

AND

J. D. OLOYEDE WITH L.K.J. LAYENIFor Respondent