DR. OCHUBA ANYELO FERDINARD ONYIAORAH v. PATRICK ONYIAORAH
(2019)LCN/12875(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/K/12/2016
RATIO
COURT AND PROCEDURE: PRIMARY FUNCTION OF THE TRIAL COURT
“It is settled law that evaluation of evidence and ascription of probative value are the primary function of the trial Court which heard and watched the witnesses testify. An appellate Court will not ordinarily interfere with the findings of a trial Court unless in special or exceptional circumstances, such as where the finding of the trial Court is not supported by the evidence or is otherwise perverse or where the trial Court has not made full use of the opportunity of watching the demeanor of the witnesses etc. See Civil Design Construction (Nig.) Ltd v. SCOA (Nig.) Ltd. (2007) 6 NWLR Part 1030 Page 300 at 339-340 Para H-B per Onnoghen JSC (as he then was).” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
EVIDENCE: WHETHER DOCUMENTARY EVIDENCE COULD BE USED IN RESOLVING CONFLICTING ORAL EVIDENCE
“I am in entire agreement with this statement, as the importance of documentary evidence is that it can be used to resolve conflicting oral evidence. As held by the Supreme Court in the case of Bunge v Governor of Rivers State (2006) 12 NWLR Part 995 Page 573 at 629-630 Para H-B per Ogbuagu JSC, it can be used as a hanger from which to test the veracity of the oral testimonies.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JURISDICTION: WHERE TWO HIGH COURT HAS JURISDICTION
“In the case of Uzoukwu v Ezeonu II (1991) 6 NWLR Part 200 Page 708 at 751 Para G-H, it was held, per Nasir JCA (as he then was), as follows: It is the High Court within the State where the infringement occurred or is likely to occur which has jurisdiction. Any High Court outside the State has no jurisdiction. Where however two Courts have equal jurisdiction the complainant may have freedom to choose which Court to go to… Furthermore, as pointed out in the case of Uzoukwu v Ezeonu Supra, the Respondent’s claim being justiciable in Kaduna State and the Appellants Counterclaim, being justiciable in Kaduna, Lagos and Anambra States, the parties were at liberty to choose which venue the suit should be instituted. This makes for practicality, as where the same facts are relied upon in a suit between the same parties, it makes for convenience and saves judicial time and also minimizes expenses of the parties, for litigation to be maintained in that one Court rather than having different Courts in different states rendering separate decisions and making possibly conflicting orders, in a matter where the evidence sustaining the claims and counterclaims are the same.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
DR. OCHUBA ANYELO FERDINARD ONYIAORAH
(Substituted for Nwanewu Luke Onyiaorah) Appellant(s)
AND
PATRICK ONYIAORAH
(Substituted for Ben C. Onyiaorah) Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment):
The 1st Defendant, Nwanewu Luke Onyiaorah was substituted at the lower Court by his son Dr. Ochiuba Onyiorah, now Appellant. Ben C. Onyiaorah, who was the Plaintiff, was similarly substituted in the lower Court by his son, Patrick Onyiaorah, the present Respondent. All reference to the parties shall thus be a reference to original parties, except where otherwise indicated.
The facts leading to this appeal are that the parties are all brothers and members of the Onyiaorah family. The Plaintiff (now Respondent) and the 1st Defendant (Appellant herein) are blood brothers. The 2nd and 3rd Defendants are the children of late Raymond Onyiaorah, also a brother, while the 4th Defendant is a member of the said family. The Respondent, as Plaintiff, sued the Appellant, as 1st Defendant, together with the three Defendants for declaratory reliefs in relation to landed properties, some in Kaduna State, one in Lagos and another in their hometown, Abatete, Anambra State, alleging that the properties were acquired and developed by them as co-owners on the clear as parties to the action, thus understanding that the said properties were to be jointly owned. He relied on correspondence between the Appellant and the brothers, as well as Minutes of a Family Meeting.
While the other Defendants did not contest the suit or file any papers, the 1st Defendant, Appellant herein, filed a Statement of Defence contending that the properties were his. He pleaded title documents, purchase receipts, receipts of ground rent, a government gazette and a Court proceeding. He counterclaimed for title over the properties.
The Respondent called three witnesses in proof of his case, while the Appellant was the sole witness in his defence and proof of his Counterclaim. They both tendered documents. The Kaduna State High Court, in a judgment delivered by Hon. Justice Tanimu Zailani on the 3rd day of March, 2009, granted the claims, in the main, of the Respondent. The Counterclaim of the Respondent was dismissed. Dissatisfied with this decision, the Appellant appealed to this Court by Notice of Appeal filed on 20/4/09.
The Appellant sought and was granted leave by this Court on 27/6/18 to strike out the names of the 2nd-4th Respondents leaving the 1st Respondent as the sole Respondent to this appeal.
In the Appellant’s Brief of Arguments, Counsel to the Appellant, B.C. Ungwoeruchukwu Esq. of Messrs Ben Ungwoeruchukwu & Co. in the Appellant’s Brief filed on 2/7/18, formulated three (3) issues for the Court?s determination, namely:
1. Whether the learned trial Judge of the lower Court was right in holding that he has jurisdiction to make declaration over landed properties in Lagos and in Anambra State situate outside the territorial jurisdiction of the honourable Court?
2. Whether the learned trial judge properly evaluated the evidence adduced especially as to weight to be attached to the exhibits before relying on same as the basis for his judgment in favour of the Plaintiff now Respondent?
3. And whether the learned trial judge’s findings was not perverse considering the state of pleadings, the evidence adduced and the counter-claim of the 1st Defendant?
The learned Counsel to the Respondent in his Brief of Arguments filed on 10/7/18, settled by Samuel Atung Esq. of Emmanuel Toro & Co, formulated two (2) issues to be determined by this Court, as follows:
1.Whether taking into consideration the facts and circumstances of this suit taken along with the pleadings of the parties, the trial Court was right in pronouncing on the issue of joint ownership of the properties at Lagos and Anambra States.
2. Whether taking into consideration, the state of pleadings and the evidence adduced at the trial, the trial Court was right to have found in favour of the 1st Respondent.
I shall adopt the issues for determination formulated by the Appellant, albeit abridged and slightly modified for succinctness, as follows:
1. Whether the trial Judge was right to hold that he had jurisdiction to pronounce on the issue of joint ownership of the properties at Lagos and Anambra States.
2.Whether the trial judge properly evaluated the evidence of the parties prior to entering judgment in favour of the Respondent.
The 1st issue for determination is:
Whether the trial Judge was right to hold that he had jurisdiction to pronounce on the issue of joint ownership of the properties at Lagos and Anambra States.
The learned Counsel to the Appellant has submitted that the lower Court erred in law when it assumed jurisdiction over the properties in Lagos and Anambra, as the Court should have restricted itself to the first four (4) properties situate in Kaduna. He cited the cases of Bashir Mohammed Dalhatu vs. Ibrahim Saminu Turaki & Ors. (2003) 7 SCNJ 1 at 19, Capital Bancorp Limited vs. Shelter Savings and Loans Limited & Anor (2007) 1 SCNJ 236 at 247 and Alhaji Garba Abbas & Anor. Vs. COP Kano State & Anor. (1998) 2 ALR 166 at 171. He cited Sections 270(1) and 272 (1) of the Constitution and urged this Court to hold that the lower Court had no territorial jurisdiction to make declarations in respect of No. 3 Martin Road off Ojuelegba Surulere Lagos and the 2 storey building at Abatete in Anambra State.
Joining issues, learned Counsel to the Respondent submitted that the trial Judge was right to assume jurisdiction over the properties in Lagos and Anambra States as the claims are merely declaratory in nature and are in personam and not in rem. The claim, he said is not in respect of foreign land. The trial Court was accordingly clothed with the jurisdiction to make pronouncements on land even though same is situate outside its territorial jurisdiction. He cited the case of Nigerian Ports Authority vs Panalpina World Transport Nigeria Ltd (1973) ANLR Page 408 at Page 423 Para 3 lines 17-23.
Counsel contended further that the Appellant submitted himself to the jurisdiction of the trial Court by filing his pleadings and throughout the proceedings before the trial Court did not challenge its jurisdiction over him but instead counter-claimed, inter-alia, for declarations in respect of the properties in Lagos and Anambra State. He urged the Court to answer the 1st issue in the affirmative and to dismiss the appeal.
The lower Court, in its judgment, deliberating on this submission raised in the Final Written Address of the Appellant, 1st Defendant therein, held:
The 1st Defendant raises objection to the jurisdiction of this Court in respect of the properties in Lagos and Abatete. Considering the pleadings and evidence adduced this Court has jurisdiction to entertain this matter. The Plaintiff, some of the Defendants and some of the properties jointly owned are within this jurisdiction. The properties in Lagos and Abatete are part of the jointly owned properties. See NPA v Panalpina’
In order to determine this issue, it is necessary to set out the reliefs sought by the parties.
The reliefs sought by the Respondent before the lower Court are as follow:
1. A DECLARATION that the Plaintiff and the Defendants jointly own the under listed landed properties as co-owners therefore namely:-
i) The house situate and known as No. AI. 14 Zaria Road, Kaduna;
ii) The house situate and known as No. I. 20 Ibrahim Taiwo Road (formerly market Road) Kaduna?
iii) The house situate and known as No. AQ. 20 Daura Road, Kaduna;
iv) The house situate and known as No. NC.15, Muri Road, Kaduna;
v) The story building situate and known as No. 3 Martin Road, off Ojuelegba, Yaba, Lagos; and
vi) The two story building and four room apartment situate at ABATETE town in Idemili Local Government Area of Anambra State of Nigeria.
2. AN ORDER that the aforementioned properties, excluding the two story at ABATETE, should all be sold off and the proceeds of the sale used to erect three other story buildings at ABATETE on land belonging to the ONYIAORAH FAMILY which are the same or similar to the two story building already existing at ABATETE and that all the four story building should be and belong to the Plaintiff and the Defendants as follows:-
i) The existing two story building to be and belong to the 1st Defendant.
ii) One each of the three newly constructed story buildings to be and belong to the Plaintiff alone, one to the 2nd and 3rd Defendants jointly, and the third to the 4th Defendant.
3. AN ORDER that the Tenants at house Nos. I. 20 Ibrahim Taiwo Road, Kaduna who were put in occupation therefore by the Plaintiff should pay their arrears of rents to the Plaintiff commencing from November, 1993 and should promptly continue to do so until this suit is finally heard and determined;
4. AN INJUNCTION restraining the 1st Defendant, his servants, agents, privies whomsoever and howsoever otherwise from trespassing unto or interfering with the joint ownership of the above properties and collecting any rents in respect of any of the above properties, or from interfering with the tenants thereof except tin respect of the property situated in Lagos.
5. Such further or other order or orders as the Court may deem fit and just to make in the circumstance.
The Appellant counterclaimed for the following:
a. A declaration that the plots with the buildings thereto situate and known as AI 14, Zaria Road, Kaduna, No. I 20, Ibrahim Taiwo Road, Kaduna, the story building known as No. 3 Martin Road off Ojuelegba Yaba Lagos and the two story building at Uruowele Umudunu Agbaja, Abetete respectively are his and not jointly owned or owned by any other person.
b. An order of the Court mandating the plaintiff to render to the 1st Defendant the account of all moneys his father and himself had been collecting from the tenants in the two afore-stated plots between January 1982 to December 1993 and to date in respect of No. AI 14 Zaria Road, Kaduna.
c. An injunction restraining the plaintiff, his servants, Agents and privies from further interfering or claiming to be the Land-lord of the two plots in any form whatsoever.
In the case of Nigerian Ports Authority v Panalpina World Transport (1973) All N.L.R 408 cited by the Respondent?s Counsel, a distinction was made by the Supreme Court between actions in personam and actions in rem on the question of whether the High Court of Lagos State was right to decline jurisdiction with respect to land in Warri.
It was held by the Court, per G.B.A Coker JSC at Page 423-424, as follows:
The fact that jurisdiction over an action for declaration of title to land is confined to the lex forum rei sitae does not eo ipso make the action one in rem, for the judgment in such an action binds only the parties to the action and does not decide the status or the title of the land as against persons generally, and does not bind those persons who are not parties to the action A defendant is within the jurisdiction and the plaintiff wants him compelled to do something personally even though the subject-matter of the compulsive action is situate outside the jurisdiction of the Court. We think on this basis that the first item of claim on the plaintiffs’ writ is an action in personam and not being an action for declaration of title to foreign land it is one over which the High Court of Lagos should have exercised jurisdiction.
Turning to the other items of claims, it is impossible to resist the conclusion that they are as well claims or actions in personam. One of them deals with a declaration that the respondents are holding certain assets admittedly situate outside the territorial area of jurisdiction of the High Court of Lagos as trustees for the appellants the respondents being within the territorial area of jurisdiction, and the other claims asking for the taking of an account and payment over of sums or amount of money that are found due to the appellants. These are conventional equity claims and come squarely within the provision of Exception 1 to Rule 18 in Dicey’s “Conflict of Laws”. We have no hesitation whatsoever in coming to the conclusion that the actions in both cases are actions in personam as between the parties and their conduct and are matters in respect of which the High Court of Lagos applying and adopting the rules of jurisdiction of conflict of laws adopted and employed by Her Majesty’s High Courts of Justice in England has the necessary jurisdiction and should have exercised such jurisdiction.
The Supreme Court, in the case above, held in support of the Respondent’s contention.
In the case of Uzoukwu v Ezeonu II (1991) 6 NWLR Part 200 Page 708 at 751 Para G-H, it was held, per Nasir JCA (as he then was), as follows:
It is the High Court within the State where the infringement occurred or is likely to occur which has jurisdiction. Any High Court outside the State has no jurisdiction. Where however two Courts have equal jurisdiction the complainant may have freedom to choose which Court to go to.
The suit by the Respondent in this case, as aforesaid, is asking that the sharing formula between the parties with respect to properties in Kaduna, Lagos and Anambra States be enforced and that any actions in deviation therefrom be prevented, thus being an action in personam, I hold. It is the Appellant, on the contrary, that sought, by his Counterclaim, for a declaration of title to land outside Kaduna State. Having so claimed and fought the case to conclusion, he has submitted to the jurisdiction of the Court and cannot be heard to complain.
In the case of Capital Bancorp Limited vs. Shelter Savings and Loans Limited & Anor (2007) 1 SCNJ 236 at 247, cited by his Counsel, the cause of action was held to have accrued in Anambra State and not Lagos State, thereby divesting the High Court of Lagos State of jurisdiction to entertain the matter, unlike the instant case.
Furthermore, as pointed out in the case of Uzoukwu v Ezeonu Supra, the Respondent’s claim being justiciable in Kaduna State and the Appellants Counterclaim, being justiciable in Kaduna, Lagos and Anambra States, the parties were at liberty to choose which venue the suit should be instituted. This makes for practicality, as where the same facts are relied upon in a suit between the same parties, it makes for convenience and saves judicial time and also minimizes expenses of the parties, for litigation to be maintained in that one Court rather than having different Courts in different states rendering separate decisions and making possibly conflicting orders, in a matter where the evidence sustaining the claims and counterclaims are the same.
Either of the parties was thus at liberty, I hold, to choose the forum most convenient. Indeed neither in the Appellant’s Statement of Defence or Counterclaim was an objection raised, only for the same to be raised in his final Written Address.
As held by the Supreme Court in the case of Ogigie v. Obiyan (1997) 10 NWLR Part 524 Page 179 at 190, Para H; 191 Para A per Uwais CJN, objection to venue must be timeous. It is at the time of filing a Statement of Defence by the Defendant that an objection to venue should be raised. The Appellant having failed to do this but rather submitted to jurisdiction and participated in the trial to conclusion, has waived any right to challenge the venue of the trial, I hold.
The Constitutional provisions cited by the Appellant’s Counsel are not in support of his contention, as they merely make provision for the establishment of a High Court in each State of the Federation and state the subject matter of its jurisdiction. Other cases cited on jurisdiction merely give pronouncements on the fundamental nature of the jurisdiction of a Court and are in respect of suits instituted in contravention of statutory legislations and not as in the instant case as relate to territorial jurisdiction and which has been submitted to. I accordingly resolve the 1st issue against the Appellant.
The 2nd issue for determination is:
Whether the trial judge properly evaluated the evidence of the parties prior to entering judgment in favour of the Respondent.
The learned Counsel to the Appellant has contended that the Respondent tendered twelve (12) Exhibits while the Appellant tendered four (4). He complained that objections were raised on Exhibits P2 and Exhibit P4, yet the lower Court still admitted the same in evidence. The Appellant’s son (DW1) maintained throughout that his father did not sign the exhibits. The Court, he said, ought to have resolved the issue of the genuineness and due execution of Exhibits P2 – P9, but failed to do so and also failed to apply Section 101 of the Evidence Act. He cited the cases of Amadi vs. Orisakwe (2005) All FWLR (Part 247) at page 1529 and Daniel Kalio vs. Daniel Kalio (2005) 4 NWLR (Part 915) Page 305 at 323. Learned Counsel contended that none of the exhibits tendered by the Respondent mentioned the two story building at Abatete. He impugned Exhibit 12, the minutes of a meeting held at Abatete, alleging that the meeting that produced the minutes was based on information got from the complainant, which complainant was neither the Appellant nor the Respondent.
He accused the lower Court of basing its decision on extraneous matters not supported by acceptable evidence. It further accused the Respondent of failing to tender all the documents pleaded by him. The lower Court, he submitted, shut its eyes to the true position of the law on resulting trust as decided by the Supreme Court in Madu vs. Madu (2008) 2 SCNJ Page 245 at 263 ? 264.
Responding to these submissions, learned Counsel to the Respondent denied that the exhibits tendered by the Respondent were contested at the hearing, pointing out that it was after the documents had been tendered and the Respondent had closed his case that the Appellant amended his pleading to impugn the exhibits tendered by the Respondent. He contended that the Appellant did not impugn or challenge any signature on Exhibit P12. The exhibits tendered validated the oral evidence of the Respondent?s witness. He cited the case Rabiu vs. Adebajo (2012) 15 NWLR (Part 1322) Page 125 at Page 149 Paras B-C. The trial Court, he said, admirably evaluated the evidence adduced before it. He denied that the decision is perverse or based on any extraneous evidence, urging the Court to dismiss the appeal.
To recap, the properties in dispute, as testified by PW1, Patrick Okechukwu, the substituted Respondent, testifying in place of his deceased father, are the following:
1. A11 14 Zaria Road, Kaduna;
2. 120 Ibrahim Taiwo Road (formerly Market Road), Kaduna;
3. AQ 20 Daura Road;
4. NC 15 Muri Road, Kaduna;
5. 3 Martins Road, off Ojuelegba, Yaba Lagos; and
6. A two story building and a four-room apartment at Abatete, Anambra State.
The evidence of PW1 is that the properties were jointly owned by his father and his brothers, Raymond, George and Luke Onyiorah. They contributed money to build the properties. Those in Kaduna were managed by his (Respondent’s) father, who died about three years prior. That in Lagos was managed by the Appellant, Luke Onyiorah, while the one in Abatete was the family house. He tendered various letters from the Appellant addressed to ‘Dear Brothers’, spanning from 1963 through to 1992.
The contention of the Appellant, however is that he owns two landed properties in Kaduna, namely the one at A14 Zaria Road, Kaduna and the other at 1.20 Ibrahim Taiwo Road, Kaduna. He similarly claims ownership of the one at Martin Road, off Ojuelegba Surulere and that at Abatete. He denied joint ownership of them with his family.
It is settled law that evaluation of evidence and ascription of probative value are the primary function of the trial Court which heard and watched the witnesses testify. An appellate Court will not ordinarily interfere with the findings of a trial Court unless in special or exceptional circumstances, such as where the finding of the trial Court is not supported by the evidence or is otherwise perverse or where the trial Court has not made full use of the opportunity of watching the demeanor of the witnesses etc. See Civil Design Construction (Nig.) Ltd v. SCOA (Nig.) Ltd. (2007) 6 NWLR Part 1030 Page 300 at 339-340 Para H-B per Onnoghen JSC (as he then was).
The trial judge, evinced the intention of resting the determination of the case on documentary evidence.
He held:
The Court must however observe the contents of the documentary evidence to arrive at a just decision. The oral evidence adduced must be looked at in view of the documentary evidence. Documentary evidence being permanent in form is more reliable and should be used to test the credibility of oral evidence.
I am in entire agreement with this statement, as the importance of documentary evidence is that it can be used to resolve conflicting oral evidence. As held by the Supreme Court in the case of Bunge v Governor of Rivers State (2006) 12 NWLR Part 995 Page 573 at 629-630 Para H-B per Ogbuagu JSC, it can be used as a hanger from which to test the veracity of the oral testimonies.
The lower Court considered the documentary evidence before it and made a finding that ?the only inference that can be drawn is that the properties subject of this suit are jointly owned. The joint ownership of the properties has been corroborated and confirmed by the exhibits.
In considering whether these findings are perverse, it is necessary to consider the documents with respect to the various properties. I start with the property in Lagos.
The documents in respect of the Lagos property are Exhibits P3-P9.
These are letters written on diverse dates between 1963 and 1965 and addressed to ‘Dear Brothers’. The name at the bottom of all these letters is that of the Appellant, Luke Onyiorah, whose address is stated to be 34 Olonode Street, Yaba. The letters acquainted his brothers with progress on the construction of the property in Lagos and the expenses being incurred. It also asked them their preference of roofing sheets and building material, continuously imploring the brothers to send more money and material for the completion of the building.
Exhibit P4 written by the Appellant as usual to ‘Dear Brothers’ is headed ‘Our Building in Lagos’. The letter went on to state that ‘This is to tell you that our building here now has come up foundation, after repeated fighting and going to and fro Police Station with the assailants who were out to grip the land by all means…The letter proceeded with steps taken by him in protection of the land. He detailed expenses he was incurring on their behalf and also losses sustained, assuring them: but the land ownership I am after, the work is going on fastly (sic). Please dear brothers, struggle hard to see your effort is made in sending money immediately month ends’.
The Appellant promised to give the brothers receipts for the sums expended, praising them all for their efforts. It notified them of tenants that were clamouring to rent the premises.
Exhibit P11 is a bundle of receipts from various tenants on the said property, which receipts were signed ‘for Umu-Onyiaora, Uruowele- Abatete’ which was interpreted by PW 3, an Igbo Court interpreter, as meaning ‘the family of Onyiaorah’.
Exhibit P5 is quite instructive. I reproduce it below:
(I WISH YOU TO KEEP THIS LETTER)
34 Olonode Street,Yaba,
Lagos
30th May, 1963.
Dear Brothers/
This is a half detail of account for the said plot.
(i) The plot situates (sic) at MARTIN ROAD OJUELEGBA Yaba ‘ one plot is before it to a Main Road leading to two major roundabouts ‘ of (a) Western Avenue and (b) Frist Yaba Roundabouts.
(ii) The ground is a hard ground and not swamp- capable of carrying story buildings without much expenses in foundation.
(iii) Cost of the Plot: 750 (pounds).
Conveyance and Searching
Fee to Lawyer 15: 15: –
Survey Fee: : 16: 16: (I paid 5:5)(Pounds)
Remain 11:11 (Pounds)
It remains fees for stamping at Government Duty Stamp office and Registration of the Conveyance at the Lagos Land?s Office. If you will be able to remit me say 15(Pounds) , this would help me to clear necessary payments. This demand would have not been made, had it been that I had not given Joseph 17: 5/(Pounds)- from my salary this month, that is 7(Pounds) for his hostel and pocket money plus 10: 5/ (Pounds)- for examination fee, because they will be taking the examination by January 1963.
The Receipts for those payments will be receipted by me and you all will see them – when all things are through with the TWO Government Offices.
I expect therefore your opinion about the above.
We praise you all for your efforts you are making and trust you all have on me has encouraged me to move heedlessly without fear.
Yours brother
Sgd.?
The signature on the document, like the others is clearly written ?Luke Onyiaorah?
It is clear from these letters that the Appellant constructed this property in Lagos with money from the brothers. He similarly rented them out in the name of the family, as confirmed in Exhibit P11 above.
The Appellant however contends that the documents were not written by his father who used Olympia typewriter but that the letters were not written with Olympia typewriter and that none of the letters were signed by him, not being his signature. His Counsel accused the trial Judge of failing to making a finding thereon and that he should have compared the signature with the Appellant’s proved writing, in consonance with Section 101 of the Evidence Act.
The trial Judge however did make a finding.
He held:
The 1st Defendant cannot be allowed to vary the contents of the documentary evidence which emanated from him by oral evidence. The defence that the documents do not bear his signature and character of an Olympia Typewriter is a mere after thought and unacceptable/dismissible.
I have no reason to disagree with this decision. With respect to Exhibits P3-P9, which are in respect of the property in Lagos, there was no objection whatsoever to their reception in evidence. Admittedly, PW1 said under cross examination – P1-P8 by the time they were written I was not in a position to read them. My father told me that the 1st Defendant wrote them? but the response of DW1 when asked of the whereabouts of his father was ?My father is still alive?.
If his father who was alive, failed to appear in Court to dispute his signature on letters which clearly depict his name, the denial of the signatures by DW1, his son, can only thus be hearsay evidence and inadmissible. The Appellant?s failure to attend Court to dispute his signature and the documents can only go to strengthen the case of the Respondent.
In the absence of the Appellant in Court, it was impossible for the Court to exercise its powers under Section 101(2) of the Evidence Act 2011, as urged by Appellant?s Counsel, to compare signatures, I hold.
The Appellant, again, in denial of the joint ownership of the property refers to a ‘Federal Republic of Nigeria Official Gazette’ (Exhibit D4) published on 20/9/63 by the Registrar of Titles, which contains, among other titles, the following:
M03645 Land at the junction of Martins and Ojuelegba Roads Surulere (Freehold) Nwannewu Onyiaorah of Urowele Abatete, Onitsha District?.
The Appellant claims that this indicates that the property in Lagos belongs to his father. I disagree with the Appellant. The letters above, which the lower Court held were written by the Appellant and which I agree with, given their literal interpretation, clearly show that the property was built jointly by the brothers. Acquiring the property in his name did not vest the property in him, I hold, but, as the evidence shows, was obtained by him in trust for his brothers. The lower Court, I therefore hold was right to have held that the letters were signed by the Appellant and that the property in Lagos was joint property.
With regard to the properties at A14 Zaria Road, Kaduna and 120 Ibrahim Road, Kaduna, the evidence of the Respondent?s son, PW1, is that the properties were jointly owned but were being managed by his father. This, DW1 disputes, claiming that both properties in Kaduna belong to his father. He tendered a receipt of purchase from the original owner to his father, in addition to receipts issued to his father by Kaduna North Local Government as ground rent.
In the absence of any documentary evidence from the Respondent, except his ipse dixit, I hold the lower Court to be in error in holding that the property in Kaduna belonged to the family, as the documents tendered by the Appellant in respect of this property point to the contrary. I accordingly resolve the ownership of these two properties in Kaduna in favour of the Appellant.
With respect to the other properties at AQ 20 Daura Road, Kaduna and NC 15 Muri Road, Kaduna, it is not contested by the Appellant that the property is joint. Indeed, in Exhibit P2 written by the Appellant to his brothers, it was suggested that they dispose of ?one of our plots in the North? in order to purchase property in Enugu. The property suggested was that at Daura Road. I accordingly hold the lower Court to have been right in classifying these two properties among those jointly owned by the family.
With regard to the property at Abatete, the Appellant, in proof of title over the land, tendered a judgment of the Chief Magistrate Court of Anambra State, Idemili Magisterial District, Holden at Ogidi in Suit No. MID/29/2005 between Mr. Luke Onyiorah v Mrs. Anna Akuamia Onyiorah, allegedly the wife of the 1st Respondent, in which he alleged that the Defendant therein is his tenant at will on the said property. The Chief Magistrate referred to his plaint that the Defendant does not pay rent and had moved to her own ?apartment? which she built ?close to his own apartment? but that she locked his premises and refused to surrender the keys. The Chief Magistrate in his judgment held the case undefended and thus unchallenged and ordered the Defendant therein to deliver up the property.
Aside from this judgment, there is no evidence from the Appellant of how and when he acquired this property, nor are there averments in his pleadings in proof of this acquisition. Judgment on a tenancy claim is not synonymous with ownership of the property, I hold, and is equally consistent with his holding of the property in trust for the family or as a care-taker. I thus see no reason to disagree with the lower Court on this property being joint property of the family and that, when the 1st Defendant’s evidence is placed on the scale as against that of the
Plaintiff the scale tilts in favour of the latter?.
I thus resolve the 2nd issue for determination partly in favour of the Appellant.
This appeal succeeds in part. That part of the lower Court’s judgment which declared in the Respondent’s favour joint ownership of all the property in Paragraph 17 of the 2nd Further Amended Statement of Claim is affirmed, except for the houses at No. A14 Zaria Road, Kaduna and 1.20 Ibrahim Taiwo Road, Kaduna.
The lower Court’s judgment dismissing the Counterclaim in its entirety is set aside. In its stead is substituted a declaration that the plots with the buildings thereto situate and known as AI 14, Zaria Road, Kaduna and No. I 20, Ibrahim Taiwo, belong to the Appellant.
Save as aforesaid, the dismissal of the Counterclaim is affirmed.
The parties are to bear their respective costs.
OBIETONBARA O. DANIEL?KALIO, J.C.A.: I have read the draft Judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree with the reasoning and conclusions of my lord.
A look at the reliefs sought by the respondent who was the plaintiff at the lower Court shows that the action is one in personam being an action in which reliefs were sought against the person of the defendants at the lower Court. The word in personam is derived from the latin word in personen which means “against a person?. The action at the lower Court was not an action in rem. An action in rem is a lawsuit against an item of property, not against a person. In rem in Latin means “in the thing itself?. The lower Court was therefore right to have assumed jurisdiction to hear the matter even though some of the properties involved in the suit were not located within its territorial jurisdiction.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the privilege of reading in advance the lead Judgment delivered by my learned brother, OLUDOTUN A. ADEFOPE-OKOJIE, JCA. I adopt all the reasoning and conclusions reached in the lead Judgment, and have nothing useful to add. I abide by her order that parties bear their respective costs.
Appearances:
B.C Ugwoeruchukwu, Esq. with him, S.U. Ugo, Esq.For Appellant(s)
No AppearanceFor Respondent(s)
