BROWN ASAWAN v. MRS. ONISIRU AKPOJOTOR
(2019)LCN/13831(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/B/218/2012
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
BROWN ASAWAN
(For himself and on behalf of the beneficiaries/children of late
Asawan Ibeyon) Appellant(s)
AND
MRS. ONISIRU AKPOJOTOR Respondent(s)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTEREFERE WHERE THE TRIAL COURT ADEQUATELY EVALUATED THE EVIDENCE BEFORE IT
On the whole, the trial Court adequately evaluated the evidence before it and rightly concluded that appellant failed to establish his claim on the strength of his case as required by law. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant, as claimant in Suit No. EHC/326/2001 instituted in the High Court of Delta State, holden at Effurun, sought the following relief:-
?a). A declaration that the plaintiff as the beneficial owner in possession is the person entitled to the grant of statutory right of occupancy (on application) under Uvwie/Urhobo native law and custom of all that properties (sic) which include the building premises and appurtenances lying and situate at No. 8 P.T.I. Road Effurun also known as Ibeyon Compound within the jurisdiction of this Honourable Court.
b). An order of Court directing the defendant to render an account of the rents collected from Mr. Brown Eyekomogban in respect of the one room and store from 1998 till date and payment of same over to the plaintiff.
c). The sum of N5, 000,000.00 (Five Million Naira) being special, general, exemplary and aggravated damages for the damages, loss, shock, embarrassment and harassment suffered by the plaintiff as a result of the wanton acts of trespass, intimidation and other unlawful acts of the defendant.
?d). An order of perpetual injunction
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restraining the defendant, her servants, agents, privies from further harassing, interfering with and/or trespassing into the aforesaid properties either by putting in tenants or collecting rents thereon.?
The claim was disputed by the respondent, who was the defendant in the trial Court. At the close of the parties? evidence and addresses of their learned counsel, the trial Court delivered a reserved judgment on the 24th day of October, 2011 wherein the appellant?s claim was dismissed with N10, 000.00 costs awarded against him. This appeal is against the said judgment.
In the appellant?s brief filed on 02/08/2013, but which was deemed as properly filed on 23/05/2017, the following issues were raised for determination:-
?1. Whether from the available evidence on record, was the trial court right when he found that the appellant failed by the quality of evidence to prove ownership of the land having regards to exhibits A,D,E, & F.
2. Whether the learned trial Judge was right to have admitted and relied on Exhibit J, when same was not pleaded by the parties.?
?The respondent also identified two issues for determination,
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which were couched as follows:-
?i. Was the learned trial Judge right, having regard to oral and documentary evidence on record, to have dismissed the appellant?s case.
ii. Was the learned trial Judge right in law to have exercised his opinion and discretion in admitting and relying on Exhibit J, in accordance with the Rules of the trial Court in the circumstances of this case.?
The respective issues formulated by the contending parties are the same in substance and I will treat them together.
Learned counsel for the appellant referred to the evidence on record and argued that, having regard to the totality of evidence, ?the learned trial judge ?. failed to satisfactorily evaluate the evidence before him hence arriving at his decision that the appellant has failed by the quality of evidence to prove ownership of the land.”
Learned counsel also contended that the trial Court was wrong in admitting and relying on Exhibit ?J? ? a judgment of the High Court of Delta State in Suit No. EHC/42/2001, when it was not pleaded by the respondent.
?On the other side, learned counsel for the respondent argued that the
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respondent proved her title to the land on the preponderance of evidence she tendered before the trial Court.
The learned counsel for the respondent submitted that having regard to the facts and circumstances of the case, including the pleadings of the parties, Exhibit ?J? was properly admitted in evidence by the trial Court.
I have read the judgment of the trial Court which spans pages 67 to 77 of the record of appeal. The trial Court held, inter alia, that the appellant failed to prove his title to the land or property in dispute. The trial Court rejected the document ? Exhibit ?A?, heavily relied upon by the appellant. The traditional evidence relied upon by the appellant was also rejected by the trial Court. On the other hand, the trial Court held that the respondent succeeded on the preponderance of evidence before it, including Exhibits ?G? and ?J? and sundry acts of possession of the land in dispute.
The argument of the learned counsel for the appellant is that Exhibit ?J? was not pleaded. In its judgment, the trial Court found and held, inter alia, that:-
?The traditional evidence
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is that the land was originally Ibeyon?s but the bone of contention is who amongst Asawan and Amirah built the house. It is in evidence that Amirah let the property to Brown Eyekamogba, started collecting rents for many years until she died and after her death, the defendant collected rent and when he Eyekomagba stopped, the defendant and her late brother Hitler Asakitikpi took the tenant Brown Eyekomagba to Court in OACC/361/91, wherein the defendant got judgment and the said Brown Eyekomagba started paying rents to her till date; Exhibits E and F show that from 1972 ? 1990 rents were paid to the defendant?s mother or to her. On the other hand, the plaintiff tendered Exhibit D which showed he received rents only in 1991 and on about four occasions from the Brown Eyekomagba, and this no doubt led to the case at the area Court in Exhibit ?G?. In other words, the defendant has successfully fought to defend her interest as far back as 1991 and succeeded.?
On the matter of payment of rent in respect of the property, the appellant averred in paragraph 12 of his amended statement of claim as follows:-
?12. Plaintiff avers that
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his tenant ? Brown Eyekomagban had been paying rents to him and was paying through his younger brother of full blood named Gilbert Eyekomagban who was occupying the store with him and receipt for rent was issued in the name of Gilbert Eyekomogban with the consent and authority of the plaintiff until December 1997 when the said tenant stopped paying rent to plaintiff or his agent and/or any other person authorized by the plaintiff to receive the said rent.?
In paragraphs 12, 13, 14, 15 and 25(a) of the respondent?s amended (or further amended) statement of defence, the respondent pleaded as follows:-
?12. The defendant avers that one Brown Eyekomogba who occupies two rooms (one store and a room) was one of the tenants put into the premises by Ilaya Ibeyo. On the return of the defendant?s mother from Ghana in 1972 the said Brown Eyekomogba acknowledged the defendant?s mother to the knowledge of the plaintiff and his family to 1987 when she died. Some of the receipts were issued by Chief Akpojotor for the mother of the defendant.
13. The defendant avers that Brown Eyekomogba paid rents to the defendant and his brother
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Mr. Hitler Asakitikpi after the death of their mother Amira I inherited the house and on the death of Hitler a few years ago the defendant became the sole owner of the house.
14. Until his death recently, the late Hitler who brought the plaintiff into the premises was in fact occupying one of the rooms in the premises. He was also buried in the premises on his death.
15. The defendant avers that after collecting rent from Brown Eyekomogba for about 15 years he suddenly refused to pay rent. Some of the defendants of Ibeyo ganged themselves together to say that the defendant as descendant of a woman should not be allowed to enjoy from the land. They directed Brown Eyekomogban not to pay rent again to the defendant because she was a descendant of a woman in Ibeyo?s compound.?
25(a). As a further reply to paragraph 12 of the amended statement of Claim the defendant avers that Brown Eyekomogba was and still a tenant of the defendant not that of the plaintiff. The plaintiff never issued any receipt to the Brown Eyekomogba or to his brother Gilbert Eyekomogba as they did not pay any rent to the plaintiff. Brown Eyekomogba was put into the premises i.e. 8,
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Ennerere Street, Effurun by the defendant?s mother the late AMIRA IBEYO. The defendant and her brother later inherited the tenancy on the death of Amira Ibeyo.?
The fact of whether it was the appellant or the respondent that was entitled to collect rent from Brown Eyekomogba was a live issue raised in the pleadings of the parties. This issue was settled in Suit No. ?..decided by the High Court of Delta State, holden at Effurun on ? and the judgment of which was admitted by the trial Court as Exhibit ?J?. I am of the view that having regard to the facts of the case and the state of the parties? pleadings, the trial Court was justified in relying on Exhibit ?J?.
On the whole, the trial Court adequately evaluated the evidence before it and rightly concluded that appellant failed to establish his claim on the strength of his case as required by law.
?The issues identified in this appeal are hereby resolved against the appellant and in favour of the respondent. The appeal, therefore, fails and it is dismissed. The judgment of the trial court in Suit No. EHC/326/2001, per
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Hon. Justice G. E. Gbemre, delivered on the 24th day of October, 2011 is hereby affirmed.
The sum of N150, 000.00 (One Hundred and Fifty Thousand naira only) is hereby awarded as costs in favour of the respondent and against the appellant.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the benefit of reading in draft the judgment of my learned brother M. A. A. ADUMEIN, JCA. I agree with the reasoning and conclusion reached.
For the reasons advanced in my learned brother’s lead judgment, I also dismiss this appeal and affirm the judgment of the trial Court.
The judgment of the trial Court in Suit No. EHC/326/2001, delivered by G. E. Gbemre, J., on the 24th day of October, 2011 is hereby affirmed.
I abide by the order as to Costs made by Adumein J.C.A in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
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Appearances:
D.O. Jarikre, Esq.For Appellant(s)
F.T. Toritsemotse, Esq.For Respondent(s)
Appearances
D.O. Jarikre, Esq.For Appellant
AND
F.T. Toritsemotse, Esq.For Respondent
