In The Court of Appeal of Nigeria

On Tuesday, the 30th day of April, 2002




GEORGE ADESOLA OGUNTADE   Justice of The Court of Appeal of Nigeria

SULEIMAN GALADIMA   Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria







  1. O. ADEREMI, J.C.A. (Delivering the Leading Judgment): The appellant was the plaintiff in the trial court (High Court of Lagos State – Ikeja Division (Coram Martins J.). He had claimed the following reliefs: per the writ of summons from the respondent who was the defendant in that court:

    (1) A declaration that the taken over by forces of arms by the defendant Ewutuntun Mafoluku Oshodi, on the 16th of July, 1994 was unlawful, illegal, fraudulent, malicious, null and void.

    (2) Special damages of N13,000.00 for the properties stolen at No. 2 Ariyibi Close on the 16th of
    July, 1994 by the defendant and his agents.

    (3) General damages of N200,000.00 for trespass and unlawful possession of the plaintiff’s property by the defendant on the 16th of July, 1994

    However by his statement of claim dated 26th September, 1994 paragraph 22 thereof the appellant as plaintiff claimed against the respondent as defendant the following reliefs:

    (1) The sum of N3,200,000.00 stolen by the defendant and his agents on the 16th of July 1994 in a coffin at No. 2 Ariyibi Close, Ewutuntun, Mafoluku Oshodi.

    (2) The sum of N9,800,000.00 being the value of goods carted away and / or stolen by the defendant and his agents on the said 16th day of July, 1994 at Ariyibi Close, Mafoluku, Oshodi.

    (3) The sum of N200,000.00 as general damages for trespass and unlawful possession of the plaintiff’s property.

    In his judgment, the learned trial judge predicated the case before him by the plaintiff/appellant as that represented in the writ of summons.It is now well settled in our jurisprudence that a statement of claim supercedes the writ of summons. See (1) UDECHUKWU VS OKWUKA (1956) 1 F.S.C. 70, (2) OWENA BANK (NIG) LTD VS NIGERIA SWEETS & CONFECTIONARIES CO. LTD (1993) 4 NWLR (Pt. 290) 698 and (3) OKOMU OIL PALM CO. VS ISERHIERHIER (1996) 1 NWLR (pt 422)94.Flowing from the above is the corresponding principle that if some special form of relief be claimed on the writ of summons and is not claimed on the statement of claim that relief is deemed to have been abandoned. It is the reliefs set out on the statement of claim filed subsequent to the writ of summons that, in law, form the basis upon which the case is fought and defended. If however, the plaintiff avers in his statement of claim that he claims as per the writ of summons then the totality of the reliefs on the writ of summons are deemed to be part of the statement of claim and they then constitute the basis on which the parties are inviting the court to adjudicate.
    As I have said, in the instant case, the plaintiff/appellant has set out the reliefs claimed in paragraph 22 of the statement of claim. He has by so doing thrown over board the reliefs set out on the writ of summons. The learned trial judge was therefore in serious error to have in his judgment said that the plaintiff/was claiming as per the endorsement on the writ. Undoubtedly, in law, this case was fought and defended on the basis of the indorsement in paragraph 22 of the statement of claim. I shall therefore approach this judgment from that angle.
    Pleadings were filed and exchanged between the parties.
    Both parties called evidence to substantiate the averments in their respective pleadings. Sequel to taking the addresses of counsel on both sides, the learned trial judge in a reserved judgment delivered on the 2nd December, 1996 dismissed the plaintiff’s claims in their entirety. In concluding the judgment, he said inter alia:
    “In the final analysis after putting the evidence of both the plaintiff and the defendant and that of their witnesses on an imaginary scale of justice leading to the observation made above, the plaintiff’s claim cannot be sustained having been rippled with contradictory evidence and the documentary evidence tendered. The case cited by the learned counsel for the plaintiff could have been useful but with the circumstances of this case, they are not because of the untruthfulness in the plaintiff’s evidence and that of his witnesses and the documentary evidence showing that the plaintiff and the defendant were in joint possession of No 2 Ariyibi Close since 21/1/94. In the circumstances, the plaintiff’s claim cannot be sustained and it is hereby dismissed in its entirety. Aggrieved by the judgment, the appellant has appealed to this court upon a Notice of Appeal which carries upon ten grounds.

    Five issues were identified for determination and as set out in the appellant’s brief of argument they are as follows:

    (1) Whether the learned trial judge was correct in holding that the appellant consensually and voluntarily handed over the property in dispute to the respondent.
    (2) Whether the learned trial judge was justified in his finding that the appellant and the respondent were in concurrent possession of the disputed property and therefore the respondent was not liable in trespass.

    (3) Whether the appellant did not prove his claim to special damages.

    (4) Whether in law and equity there was a binding contract of sale of the disputed premises between the appellant and the respondent.

    (5) Whether the learned trial judge misconceived the case of the appellant.

    The respondent in his brief of argument adopted issues 2, 3 and 4 formulated by the appellant while he is of the opinion that appellant’s issue No.5 is subsumed in issue No. 3. He however formulated one issue which he contended is a re-cast of issue No.1 raised by the appellant and set out in his brief, is in the following terms:

    “Whether the learned trial judge’s finding that there was no forceful entry into the disputed premises by the defendant, can rightly be disturbed or interfered with by the Court of appeal.

    A revisit to the reliefs sought by the plaintiff/appellant leaves me in no doubt that legs 1 and 2 fix the defendant/respondent with allegation of commission of crime, while leg 3 alleges trespass and a consequent claim for damages. Issues Nos. 1 and 2 raised by the appellant can therefore be conveniently taken together with the only issue identified by the respondent. I shall in this judgment, approach the issues by that arrangement.

    When this appeal came before us on 13th February 2002 learned counsel for the appellant adopted the appellant’s brief filed on 1/6/2000 and urged that the appeal be allowed. The respondent’s counsel for his part adopted his clients brief of argument deemed to have been filed on 29/10/2001 and urged that the appeal be dismissed.
    It is common ground between the two parties that a sale of the property No. 2 Ariyibi Close, Ewutuntun, Mafoluku, Oshodi to one defendant/respondent was negotiated between the appellant and the respondent and it was voluntarily and mutually agreed upon by them. Indeed, the sum of N1.4 million was agreed upon as the purchase price. The sum of N1.1 million was paid by the respondent to the appellant. In addition, the respondent paid the outstanding sum of money owed by the appellant to the bank to ensure the release of the documents of title held by the bank as security for the loan granted the appellant. Ex D, by the letter dated 28th January, 1994 addressed to Chioma Ekwuanyi, the respondent’s solicitor and D/W2, the appellant has left no one in doubt that he has parted with the property in favour or the respondent. If there is anything outstanding in the favour of the I appellant from the respondent it is the sum of N300,000.00 which, according to him, is the balance of the purchase price.
    I make this deduction going by Exhibit B1 – the Deed of Assignment signed by both parties. Even Exhibit F a letter dated 25th March 1994 written by the solicitor of the appellant to the 1994, addressed to the African Continental Bank Ltd by the appellant requesting the Manager of that bank to release his title deeds to the respondent’s solicitor, the appellant has put it beyond any doubt that he has divested himself of his right, title and interest in the said property in favour of the respondent. Where one person has made a representation to another person by his words, acts and conduct, as in the instant case where the appellant voluntarily entered into discussion with the respondent for the sale of his property to the respondent and he collected money from him with only a little balance being withheld by the respondent pending the release of title documents to him, the appellant cannot in law and equity, indeed in good conscience, be allowed to renege from the position voluntarily created by him that he has parted with his title in the said property in favour of the respondent. When parties voluntarily enter into a business agreement equity demands that each party enters into the deal as package – enjoying the benefits thereof and enduring at the same time, the liabilities therein. Where one party has performed his own side of the obligation as in the instant case, it will be inequitable indeed, it will be against good conscience and reasoning to allow the other side to renege from the position created after taking the benefit of the performance by the party.
    This is what the doctrine of estoppel is all about. It is a rule of evidence which is to be found in many circumstances and is of a much more general character. The classic statement of the doctrine of estoppel by representation, which I am content with for the purpose of this judgment, is that formulated by Spencer Bower and now to be found in the third edition of his work “ESTOPPEL BY REPRESENTATION” he said at page 4 and I quote:
    “Where one person (the representor) has made a representation to another person (the representee) in words or by acts and conduct or (being under a duty to the representee to speak or act) by silence or in action with the intention (actual or presumptive and with the result of inducing the representee on the faith of the representation to alter his position to his detriment, the representation in any litigation which may after word take place between him and the representee is estopped, as against the representee from making or attempting to establish by evidence any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner objects thereto.”
    This statement was expressly adopted by Evershed M.R. in HOPGOOD VS BROWN (1955)1 A.E.R. 550. Going by the pleadings and the facts of this case as reviewed by the trial judge, I am clean in my mind that the transaction between the plaintiff/appellant and the defendant/respondent amounted to an outright sale of the property stated as No. 2 Ariyibi Close, Ewutuntun, Mafoluku, Oshodi to the defendant/respondent. In the circumstances, it is no longer open to the plaintiff/appellant to lay any claim of ownership to the said property. His remedy, if he has any, is to enforce the payment of the balance of money which the defendant/appellant is holding unto (if he has not paid it over) upon release by him of the title documents to the owner of the property – the defendant/respondent, see (1) KOFI v. MENSAH 1 WACA 76 and (2) YAKASSAI VS INCAR MOTORS NIG. LTD (1975)5 S.C. 107

    Having held that title on the property has passed to the defendant/respondent upon the payment of remedy, the plaintiff/appellant must be taken to have consensually handed over the property to the defendant/respondent in consideration of the money received by him. Issue No.1 on the appellant’s brief must be answered in the affirmative and I so answer it. Having regard to what I have been saying, it is my judgment that there was a binding contract of sale of the property in dispute by the appellant to the respondent. Consequently, issue No. 4 on the appellant’s brief is answered in the affirmative. Upon payment of the purchase price to the plaintiff/appellant possessory title in the said property reverted to the defendant/respondent. That is evidence of good title in him which superseded whatever possession the Plaintiff/appellant might still be retaining see ADESANYA v. OTUEWU (1993)1 NWLR (pt.270) 414. The continued possession of the property after he had collected the purchase price from the respondent was therefore wrongful. It is settled law that no one can take advantage of his own wrong doing; the Latin Maxim is NULLUM COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA – it was followed in ADEDEJI v. N.B.N. LTD (1989)1 NWLR (pt. 96) 212. The court is the fountain of justice and no polluted hand must approach it.
    Widgery L. J. put it very succinctly in BUSWELL v. GODWIN (1971)1 A.E.R. 42 when he said:
    “The proposition that a man will not be allowed to take advantage of his own wrong doing is no doubt a very salutory one and one which the court would wish to endorse.”
    Guided by the above principle I answer the only issue identified by the respondent in the affirmative. After reviewing the totality of the evidence before him, particularly EX. B – the deed of assignment – the learned trial judge found that the plaintiff/appellant was in occupation of part of the property. But from what I said supra, that continued occupation was unlawful. Indeed the learned trial judge held:
    “I had earlier stated that EX. D copied to A.C.B will not serve useful purpose. It was dated 28/1/94. The plaintiff in this case on the 19/1/94 had authorised the Manager of A.C.B. Agege Branch to surrender to the learned  counsel for the defendant deed of conveyance… and had also copied learned counsel for the defendant.
    Having regard to all the documents referred to there was never a forceful entry on the part of the defendant going by Exhibits K1 and B1.
    A proper examination of these pieces of evidence read together cannot tantamount to a finding that the two were in concurrent possession. Issue No.2 on the appellant’s brief is non sequitur.
    I have said that reliefs 1 and 2 raised the issue of criminal act committed by the defendant/respondent. The law is now well settled that if the commission of crime by a party to a civil case is directly in issue, the party asserting it must not only prove it beyond reasonable doubt, the crime or criminal act alleged to have been committed must be set down specifically in his pleading see (1) IKOKU v. ONI (1962) 1 ALL NLR 194 (2) SOFEKUN v. AKINYEMI & ORS. (1980) 5 S.C 1 and (3) FOLAMI VS COLE (1990) 2 N.W.L.R. (pt. 133) 445. The evidence led by the Plaintiff/appellant is devoid of that standard of proof. Also, the contents of the two reliefs are in the nature of special damages. The law places the burden on a party claiming special damages to specifically plead same and strictly prove them see ODULAJA v. HADDAD (1973)11 S.C. 357. I have had a close look at the evidence led by the plaintiff/appellant it is lacking in that degree of proof. I therefore answer, issue No.3 on the appellant’s brief of argument in the negative.
    In the final analysis, having regard to all I have said above, it is my judgment that this appeal is unmeritorious. It must be dismissed. I accordingly dismiss it with cost assessed at N5,000.00 in favour of the respondent.

    GEORGE ADESOLA OGUNTADE, J.C.A.: I entirely agree with the reasoning and conclusion in the lead judgment written by my learned brother ADEREMI, JCA. I also award N5,000.00 costs in favour of the respondent.

    SULEIMAN GALADIMA, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother ADEREMI, JCA. I agree with his reasoning and conclusion. I abide also by his order as to costs.



Chief A. A. Aribisala with him Mr. F.N.B. NjokuFor Appellant



Mr. Dotun Odunobi with him Mr. O.B. OgunkoyaFor Respondent


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