EZENWA & ORS v. ORAKWUSI
(2022)LCN/16514(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, December 23, 2022
CA/LAG/CV/462/2020
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
1. NOEL EZENWA 2. PRINCE PETER EZENWA 3. PRINCE HENRY EZENWA (Administrators Of The Estate Of Igwe P. C. Ezenwa, Substituted By The Order Of The Court On 6/11/18) APPELANT(S)
And
ALEXANDER O. ORAKWUSI RESPONDENT(S)
RATIO:
THE RULE OF EVIDENCE IS THAT WHO ASSERTS THE POSITIVE MUST PROVE
Evidence is the basis of justice, and the rule of evidence is that he who asserts the positive must prove. See OKAFOR v EZENWA [2003] 47 WRN 1 at 11 –per Uwaifo JSC, VULCAN GASES LIMITED v GESELLSCHAFT[2001] 26 WRN 1 at 59, ABIODUN v ADEHIN (1962) 2 SCNLR 305 and MOROHUNFOLA v KWARATECH [1990] 4 NWLR (PT 145) 506. Evidence is nothing but proof legally presented at the trial on an issue: AKINTOLA v SOLANO (1986) 4 SC 141. The law is well settled, if not elementary, that anyone [including a counterclaimant] who desires the Court to give judgment as to any legal right or liability must prove those facts. ARCHIBONG v ITA [2004] 2 NWLR (PT. 858) 590 at 618 – 619. PETER OYINKENIMIEMI AFFEN, J.C.A.
THE BURDEN OF PROOF RESTS UPON THE CLAIMANT TO ESTABLISH THE MAIN CLAIM
Just as the burden of proof rests upon the claimant to establish the main claim, so it lies on the defendant to establish the counterclaim which, for all intents and purposes, is a cross-action, fresh and completely independent, separate and distinct from the one commenced by the original plaintiff. See PETERSIDE v I.M.B (NIG) LTD [1993] 2 NWLR (PT. 278) 712 at 731-732 and IGE v FARINDE [1994] 7 NWLR (PT. 354) 42. A counter-claimant is therefore a claimant in his own right [see UNION BANK PLC v ISHOLA [2001] FWLR (PT. 81) 1868 at 1892], and like all other claimants in an action, he must prove his case in order for him to obtain judgment. See OBMIAMI BRICK & STONE LTD v ACB LIMITED [1992] 3 NWLR (PT 229) 260 at 298-299, JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC [2001] 7 WRN 1 at 18, PRIME MERCHANT BANK v MAN-MOUNTAIN COMPANY [2000] 6 WRN 130 at 134 and WALTER v SKYLL NIG. LIMITED [2000] 13 WRN 60 at 98. See generally ss. 133 – 137 of the Evidence Act, 2011. PETER OYINKENIMIEMI AFFEN, J.C.A.
A NECESSARY INCIDENCE OF PARTNERSHIP IS THAT EACH PARTNERS IS IN LAW JOINTLY AND SEVERALLY LIABLE WITH HIS CO-PARTNERS FOR THE DEBTS AND LIABILITIES
A necessary incidence of partnership is that each of the partners is in law jointly and severally liable with his co-partners for the debts and liabilities of the partnership [see YESUFU & ANOR v KUPPER INT’L & ANOR (1996) LPELR-3519(SC) 1 at 18], whilst s. 23(ii) of the Partnership Law of Lagos State provides that: “The firm must indemnify every partner in respect of payments made and personal liabilities incurred by them in the ordinary and proper conduct of the business of the firm, or in or about anything necessarily done for the preservation of the business or property of the firm”. See also S. 24 (2) of the Partnership Act, 1890. Thus, whilst a partner who makes payment on behalf of the partnership may be entitled to claim reimbursement from the partnership or other partner(s) upon proper accounts being rendered, he certainly cannot claim exclusive ownership of partnership property on the basis that he solely paid partnership debt to redeem the property without any contribution or support from the partnership or his co-partner(s). PETER OYINKENIMIEMI AFFEN, J.C.A
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment):
Introduction
The subject matter of this litigation is all that property (comprising three houses) situate at and known as Plot 2505 (Nos. 2, 2A and 2B) Degema Close, Apapa, Lagos, which is registered as Title No. MO2302 at the Lagos Land Registry. The property was transferred to Messrs. P. C. Ezenwa & Co under and by virtue of a Deed of Transfer of Leasehold (Whole) dated 11/10/78, and registered in the joint names of the Late Igwe P. C. Ezenwa and Alexander Orakwusi. Both of them were business partners and proprietors of P. C. Ezenwa& Co, which had its principal place of business at No. 39 Campbell Street, Lagos. The Appellants are children (and heirs) of the Late Igwe P. C. Ezenwa, with the 1st Appellant [Noel Ezenwa] being the first son. By a writ of summons issued out of the Registry of the High Court of Lagos State on 20/3/90, the Respondent (and a third party) initiated Suit No. LD/535/90: Triana Limited & Anor v Mr. Noel Ezenwa, claiming the delivery up of possession of No. 2B Degema Close, Apapa, Lagos as well as an order of perpetual injunction against the 1stAppellant. Igwe P. C. Ezenwa was subsequently joined as 2nd Defendant, but he died intestate in the course of the proceedings whereupon his wife [HRM Ifeoma Ezenwa, now deceased] along with the 2nd and 3rd Appellants were substituted for him as 2nd, 3rd and 4th defendants respectively by an order of Court dated 6/11/18.
Pleadings were amended once and again. Plenary trial was conducted on the basis of the Amended Writ of Summons and Statement of Claim filed on 26/11/18, the Further Amended Defendants’ Statement of Defence and counter-claim filed on 12/11/18, and the Reply and Statement of Defence to the Defendants’ Further Amended Statement of Defence and counter-claim filed on 26/11/18. There was a main claim and a counterclaim in the proceedings. Each side claimed ownership of the property to the exclusion of the other. The parties fielded one witness apiece. The Respondent (Alexander Orakwusi) testified as sole claimants’ witness, whilst the 1st Appellant (Noel Ezenwa) testified as sole defendants’ witness; and documents were tendered and admitted in evidence. In a considered judgment delivered on 4/3/20 (which lies at Pp. 615– 633 of the records), S. B. Candide-Johnson, J. first considered and dismissed the counterclaim before proceeding to consider and allow the main claim.
This appeal is an expression of the Appellant’s discontent with the judgment. The Appellants fault the judgment on six grounds set out in their Amended Notice of Appeal filed on 20/7/20 wherein they prayed this Court to allow the appeal, set aside the judgment and enter “judgment for the Appellants in line with the counterclaim but taking into consideration the finding of the lower Court that the property would belong to both the Respondent and Igwe P. C. Igwe”. The complaint in this appeal is not targeted at the whole judgment but “the part dealing with the striking out the names of the 2nd and 3rd Appellants; the part dealing with the Court considering the case of the Appellants concerning ownership of the land in dispute before considering the claims of the Respondent over the land; the part dealing with the finding of the Court that the payment of the defaulting loan was by the sole effort of the Respondent without any impute (sic) from the Appellants; the part where the learned trial judge held that the Main Action is entitled to stand and the Counter-Claim fails and is dismissed”. Briefs of arguments were filed and duly exchanged. At the hearing of this appeal on 29/9/22, Clifford Nwude, Esq. of counsel for the Appellant’s (who appeared with S. Shittu, Esq.) adopted the Appellants’ Brief filed on 10/8/20 as well as the Reply Brief was filed on 29/9/22 in urging the Court to allow the appeal. In the same vein, E. E. Asia, Esq., of counsel for the Respondent (who appeared with O. C. Anusionwu, Esq.) adopted the Respondent’s Brief filed on 28/7/22 but deemed properly filed and served on 29/9/22 in urging the Court to dismiss the appeal.
Issues for determination
Three issues are formulated for determination in the Appellant’s Brief as follows:
(i) Whether the Honourable trial Court was right in striking out the names of the 2nd, 3rd and 4th Appellants/Defendants from the suit.
(ii) Whether having regard to the pleadings of the parties, the credible evidence adduced, the learned trial Court was right in holding that the main action is entitled to stand and granted all the claims of the respondent/claimant.
(iii) Taking into consideration the pleadings of the parties, credible evidence adduced in the cause of trial whether the Honourable trial Court was right in dismissing the Counter Claim of the appellants.
On the Respondent’s part, the following three (3) issues are equally identified in the Respondent’s Brief:
(i) Whether the lower Court was right in striking out the names of the 2nd, 3rd and 4th defendants who were substituted as administrators and administratrix of the Estate of P. C. Ezenwa.
(ii) Whether from the facts and circumstances of this case, the lower Court was right in granting the Respondent’s claims.
(iii) Whether from the unchallenged finding of the lower Court, the Appellants are entitled to their Counterclaim.
I have given a careful and insightful consideration to the two sets of issues identified by the parties (as reproduced above) which, shorn of semantics, are essentially the same. The Respondent’s issues however seem to me more succinct, and I will and do hereby adopt them in determining this appeal.
Issue 1
This issue queries the propriety of the striking out of the 2nd, 3rd and 4th defendants as parties to the suit that generated the instant appeal. As stated hereinbefore, the Late Igwe P. C. Ezenwa passed on in the course of the proceedings, whereupon his wife and two children were substituted for him (as 2nd, 3rd and 4th defendants respectively) by an order of Court dated 6/11/18. But they were eventually struck out from the suit in the final judgment wherein the lower Court held (at p. 642 – 643 of the records) thusly:
“Locus Standi was defined in ATTORNEY GENERAL OF KADUNA STATE v HASSAN [1985] 2 NWLR 483-497, where the Supreme Court, held that locus standi means “the legal capacity to challenge an order or act”. Locus standi affects the jurisdiction of the Court [to entertain the] matter and thus can be raised at any time – POPOOLA ELABANJO & ORS v CHIEF (MRS) GANIAT DAWODU S.C 386/2001. Locus standi being a jurisdictional issue can be raised even on appeal therefore, the Claimant Counsel can raise it at any time. I agree with the submission of the Counsel that the 2nd – 4th Defendants cannot be joined to the suit as they don’t have a Letter of Administration granting same. Section 10 of the Administration of Estates Law of Lagos State states that:
“Where a person dies intestate and administration is granted under this law in respect of his real and personal estate, that estate shall be deemed to have been vested, from the date of his death until administration is granted, in the Chief Judge in the same manner and to the same extent as it vests in the probate judge of Her Majesty’s High Court of Justice in England”.
In effect that (sic) in the absence of a Letter of Administration, the Estate ordinarily resides in the Chief Judge. Therefore, if no Letter of Administration was applied for and obtained then the right to institute or continue the deceased action cannot be vested in the 2nd – 4th Defendants. Therefore, the names of the 2nd – 4th Defendants are thereby struck [out] from this suit. Notwithstanding the striking of the names of the 2nd – 4th Defendants from this suit, this suit still subsists as regards the 1st Defendant who was the initial Defendant before the Late P. C. Ezenwa was joined by Court Order.”
The Appellants contend that there is a distinction between joinder and substitution and the suit did not start afresh upon the substitution which placed the 2nd, 3rd and 4th defendants in the exact position of the deceased Igwe P. C. Ezenwa; and that “since Igwe P. C. Ezenwa was not adjudged to lack locus standi, then the 2nd – 4th defendants should not be adjudged to lack locus standi”. Reference is made to Order 15 Rule 17 of the High Court of Lagos State (Civil Procedure) Rules 2019 and the cases of ENYADIKE v OMEHIA (2010) 11 NWLR (PT. 1204) 92 at 131, TRANSAMERICA CORP. v AKANDE [2014] 15 NWLR (PT. 1431) 502 at 528, MESSRS U. MADUKA ENT. (NIG) LTD v B. P. E & ORS [2019] 12 NWLR (PT. 1687) 429 at 440, OSUJI & ANOR v OGUALAJI [2002] 16 NWLR (PT 792) 136 at 148 and SHODEINDE v LAWAL [2012] 9 NWLR (PT 1304) 38 at 44. They maintained that the wife and children of a deceased person can sue as next-of-kin to protect his property prior to the grant of letters of administration, citing RUTHLINZ INTER’L INV. LTD v IHEBUZOR [2016] 11 NWLR (PT 1524) 409 at 427 and IRONBAR v F.M.F. [2009] 15 NWLR (PT 1165) 506 at 530.
The Appellant argued that the lower Court became functus officio upon making the order of substitution on 6/11/18, and had no vires to revisit the issue or seat on appeal over its decision in the absence of any element of fraud or want of jurisdiction, citing ONWUKA v MADUKA [2002] 8 NWLR (PT 799) 586 (SC) and AKPAN v EKPO [2000] 5 NWLR (PT 707) 502 (CA), that being a matter of procedural law, the Respondent who conceded to the substitution is deemed to have waived the right to object afterwards, placing reliance on IHIABE v ZAKARI [2012] 12 NWLR (PT 1215) 517 (CA) and BPE v DANGOTE CEMENT PLC (2020) 5 NWLR (PT 1717) 322 (SC) on the imperative of raising procedural objections timeously. It is further contended that the Appellants did not issue any writ by which they claimed to sue as administrators of the Estate of P. C. Ezenwa but the 2nd, 3rd and 4th defendants were put in the same position as the original party by the order of substitution, whilst the words “Administratrix and Administrators” in bracket merely appeared in the statement of defence and counterclaim without objection by the Respondent throughout the trial, citing OTUKPO v JOHN supra.
The Respondent’s reaction is that thelower Court was right to strike out the 2nd, 3rd and 4th defendants who did not join the suit as personal representatives but as “Administratrix and Administrators of the Estate of P. C. Ezenwa”, insisting that a party must have obtained letters of administration or probate before he can claim that capacity; that the question of being substituted in a representative capacity did not arise because the 2nd, 3rd and 4th defendants did not have the status they claimed and that the cases cited by the Appellants (on the right of a personal representative to sue or be substituted for deceased person) are inapplicable. The Respondent relied on BALOGUN & ANOR v AGBARA (2007) LPELR-8784(CA) and maintained that the Appellants claimed substantively to represent P. C. Ezenwa & Co and have its authority and consent to bring the counter-claim, which meant in effect that they were representing an entity with no capacity to sue; that in the absence of any claim or defence in the capacity of personal representatives as distinct from the endorsements on the statement of defence and counterclaim, the cases relied upon are poles apart; and that the Appellant’s arguments on appeal are different from the case made out at the lower Court on the issue of capacity, which is not permissible, placing reliance on IBRAHIM v OBAJE (2017) LPELR-43749(SC), C. N. OKPALA & SONS LTD v NB PLC (2017) LPELR- 43826(SC), ONUOHA NWOKOROBIA v DESMOND UCHECHI NWOGU & ORS (2009) LPELR-2127(SC), [2009] 10 NWLR (PT 1150) 553 and CLIFFORD OSUJI v NKEMJIKA EKEOCHA (2009) LPELR-2816(SC), [2009] 16 NWLR (PT. 1166) 81.
The Respondent referred to S. 10 of the Administration of Estates Law of Lagos State and insisted that the Appellants were wrong to have presented themselves as Administratrix and Administrators of the Estate of PC Ezenwa, and the order of substitution was made without the benefit of information that the parties sought to be joined had not applied for or collected any Letters of Administration, which meant they had no legal capacity to seek joinder in the first place, and the informed judgment of the learned trial Judge was based on the 1st Appellant’s testimonial evidence under cross-examination to the effect that no Letters of Administration had been obtained in respect of late Igwe P. C. Ezenwa’s estate and that the Appellant’s reliance on ENYADIKE v OMEHIA supra and TRANSAMERICA COPR v AKANDE supra is misconceived, insisting that the lower Court’s power to grant substitution of parties is not intended to lead to misjoinder of parties. Reference is made to Order 13 Rules 3 and 11 of the High Court of Lagos State (Civil Procedure) Rules 2012 (in force at the time), s. 10 of the Administration of Estates Law of Lagos State and the case of TRANSAMERICA COPR v AKANDE supra. The Court was urged to resolve Issue One in favour of the Respondent.
Now, substitution entails the replacement of a party to a pending action who dies or becomes bankrupt in the course of proceedings or there is an assignment, transmission or devolution of interests or liabilities involved in the suit which necessitates replacement of that party to prevent abatement of the action. See ECOBANK NIG PLC v METU & ORS [2012] LPELR-20846(CA) and ENYADIKE v OMEHIA supra. Parties have thus been substituted even after delivery of judgment but before the hearing of an appeal. See CBN v IGWILLO [2007] 14 NWLR (PT 1054) 393. Substitution has the same effect as an amendment which relates back to the date of the original document or process amended [see FRN v ADEWUNMI [2007] 10 NWLR (PT 1042) 399 at 427 – per Ogbuagu JSC], and a party substituted for another who is either deceased or otherwise incapacitated merely steps into the shoes of the original party and he/she can scarcely be said to lack locus standi to maintain or continue the action. See OSUJI v OGUALAJI supra and SHODEINDE v LAWAL supra.
The case of OKONYIA v IKENGAH (2000) LPELR-5484(CA) donates the proposition that the personal representatives of a deceased person are not without capacity to institute or defend an action in respect of the real estate to which the deceased is entitled by operation of law even where letters of administration have not been obtained. In JEDDO v IMIKO (1972) LPELR-1599(SC), the Supreme Court held that where a plaintiff who sued as next-of-kin for trespass to the estate subsequently obtains letters of administration, the doctrine of relation back applies as the action was originally properly constituted in that the plaintiff sued in the correct capacity at the time of issuance of the writ, and it is in order for the Court to allow an amendment of the writ to enable the plaintiff sue as administrator. See also OTUKPO v JOHN [2008] 8 NWLR (PT 669) 507, UDO v WILLIAMS [1997] 1 NWLR (PT 483) 548,MENKITI v AGINA (1965) NWLR 127 and RICKETT v I.B.W.A. LTD (1960) SCNLR 227. It cannot escape notice in the case at hand that the Appellants did not issue any writ in which they claimed to have sued as personal representatives. The 2nd, 3rd and 4th defendants were however projected as “Administratrix and Administrators of the Estate of P. C. Ezenwa” in the motion on notice dated 2/11/18 (copied at pp. 146 – 156 of the records) by which they applied to be substituted for the late Igwe P. C. Ezenwa, which motion was granted on 6/11/18 without objection by the Respondent even though no Letters of Administration was exhibited.
Now, S. 10 of the Administration of Estates Law of Lagos State provides that the real and personal estate of a person who dies intestate shall be deemed to have been vested in the Chief Judge from the date of his death until administration is granted. However, it seems to me that in a situation (such as the present) where ownership of property was in issue in a pending litigation between a rival claimant and the deceased at the time of death, such property ought not to be categorised as forming part of the ‘real and personal estate of a deceased person which shall be deemed to have been vested in the Chief Judge from the date of death until administration is granted’ within the meaning and intendment of S. 10 of the Administration of Estate Law of Lagos State. Especially is this so as the disputed property is registered in the joint names of the deceased Igwe P. C. Ezenwa and the Respondent as partners/proprietors of P. C. Ezenwa& Co., and each of them claims ownership to the exclusion of the other.
I take the considered view that where real or personal property is the subject matter of pending litigation between a deceased person and a rival claimant, no question of vesting of such property in the Chief Judge would arise until and unless the deceased is eventually adjudged the rightful owner. In that scenario, a surviving spouse and child(ren) of the deceased are not inhibited from stepping into the shoes of the deceased with a view to prosecuting or defending the litigation notwithstanding that letters of administration have not been obtained. Under cross-examination (at p. 604 of the records), the Respondent positively identified the 2nd, 3rd and 4th defendants as the wife and children of the deceased Igwe P. C. Ezenwa. The undesirable effect of holding otherwise would be to unwittingly donate the property to the rival claimant on a platter of gold and thereby remove any prospects of vesting of the property in the Chief Judge at the end of the day.
But more crucially, since the 2nd, 3rd and 4th defendants were substituted for the deceased Igwe P. C. Ezenwa by an order of the lower Court dated 6/11/18, it does not seem to me that the lower Court was at liberty to strike them out in the manner it did. By striking out the very same parties it had earlier substituted for the deceased Igwe P. C. Ezenwa, the lower Court effectively sat on appeal over its own decision and overruled itself. It is hardly necessary to state that this is not permissible, even if the order of substitution was wrongly made. In the absence of any fundamental vice (such as fraud, want of jurisdiction, etc.), the lower Court was rendered functus officio and could not validly revisit the substitution of the 2nd, 3rd and 4th defendants for the deceased Igwe P. C. Ezenwa under the guise that they had not obtained letters of administration. The order of substitution remained valid to all intents and purposes and could only be interfered with on appeal upon a distinct ground/issue being raised thereon by an aggrieved party. The very same lower Court that granted the order of substitution in the first place had no liberty to do so.
Against this backdrop, I cannot see my way clear that the lower Court was right in striking out the 2nd, 3rd and 4th defendants from the suit in the manner it did and for the reasons given. Issue 1 ought to be resolved in favour of the Appellants against the Respondent, and I so resolve it.
Issues 2 and 3
The Appellants’ contention under issues 2 and 3 is that having regard to the pleadings and the oral and documentary evidence adduced by the parties, the lower Court erred in entering judgment in terms of the main claim and granting all the reliefs sought by the Respondent on the one hand, and dismissing the counter-claim in its entirety on the other hand. These twin issues constitute an attack on evaluation of evidence, which is ordinarily the forte of a Court of trial. Perception of evidence and evaluation of evidence are two crucial duties of a trial Court. Perception entails receiving all relevant evidence into the records, whilst evaluation imports weighing the evidence received in the context of surrounding circumstances. Essentially, a finding of fact by a trial Court entails both perception and evaluation of evidence. See WACHUKWU v OWUNWANNE [2011] 14 NWLR (PT 1266) 1 and GUARDIAN NEWSPAPERS LTD v AJEH [2011] 10 NWLR (PT 1256) 574. I must here remind and caution myself at once that an appellate Court will interfere with evaluation of evidence by a trial Court if, and only if, it made an improper use of the opportunity of seeing and hearing the witnesses or reached wrong conclusions from accepted facts.
Evidence is the basis of justice, and the rule of evidence is that he who asserts the positive must prove. See OKAFOR v EZENWA [2003] 47 WRN 1 at 11 –per Uwaifo JSC, VULCAN GASES LIMITED v GESELLSCHAFT[2001] 26 WRN 1 at 59, ABIODUN v ADEHIN (1962) 2 SCNLR 305 and MOROHUNFOLA v KWARATECH [1990] 4 NWLR (PT 145) 506. Evidence is nothing but proof legally presented at the trial on an issue: AKINTOLA v SOLANO (1986) 4 SC 141. The law is well settled, if not elementary, that anyone [including a counterclaimant] who desires the Court to give judgment as to any legal right or liability must prove those facts. ARCHIBONG v ITA [2004] 2 NWLR (PT. 858) 590 at 618 – 619.
Just as the burden of proof rests upon the claimant to establish the main claim, so it lies on the defendant to establish the counterclaim which, for all intents and purposes, is a cross-action, fresh and completely independent, separate and distinct from the one commenced by the original plaintiff. See PETERSIDE v I.M.B (NIG) LTD [1993] 2 NWLR (PT. 278) 712 at 731-732 and IGE v FARINDE [1994] 7 NWLR (PT. 354) 42. A counter-claimant is therefore a claimant in his own right [see UNION BANK PLC v ISHOLA [2001] FWLR (PT. 81) 1868 at 1892], and like all other claimants in an action, he must prove his case in order for him to obtain judgment. See OBMIAMI BRICK & STONE LTD v ACB LIMITED [1992] 3 NWLR (PT 229) 260 at 298-299, JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC [2001] 7 WRN 1 at 18, PRIME MERCHANT BANK v MAN-MOUNTAIN COMPANY [2000] 6 WRN 130 at 134 and WALTER v SKYLL NIG. LIMITED [2000] 13 WRN 60 at 98. See generally ss. 133 – 137 of the Evidence Act, 2011.
It is equally well ingrained in our adversarial jurisprudence that a claimant must succeed on the strength of his own case and not on the weakness (or absence) of the defence. This principle is however subject to the qualification that a claimant is eminently entitled to take advantage of any element in the defendant’s case that strengthens his own case. What this implies is that it is not sufficient for the claimant to merely assert that the defendant’s case is weak or even that there is no defence, there must be something of positive benefit to the claimant in the defendant’s case. See UCHENDU v OGBONI[1999]5 NWLR (PT. 603) 337, (1999) 4 SC (PT. II) 1, AKINOLA v OLUWO (1962) 1 SCNLR 352 and YUSUF v ADEGOKE [2008] 40 WRN 1 at 51. The claimant must therefore establish his title by credible evidence in order to be entitled to the reliefs sought. Indeed, in AROMIRE v AWOYEMI (1972) 1 ALL NLR 101 at 102,the Supreme Court held that in an action for declaration of title to land, “the plaintiff must first show a prima facie title to the land before a consideration of the weakness of the defendant’s title arises”. See also the cases of DANJUMA TANKO v OSITA ECHENDU [2010] 18 NWLR (PT. 1224) 253,OWOADE v OMITOLA [1998] 2 NWLR (PT. 77) 423, LAWSON v AJIBULU [1997] 6 NWLR (PT 507) 14 and DIM v ENEMUO [2009] 10 NWLR (PT 1149) 353. If the claimant fails to discharge the onus probandi cast upon him by law, the weakness of the defendant’s case will not avail him and the proper judgment is for the defendant. See ELIAS v OMO-BARE [1982] NSCC 92 at 100 and KODILINYE v MBANEFO ODU 2 WACA 336 at 337.
In the matter on appeal, there were rival claims for declaration of title by the Respondent (as claimant) and the Appellants (as defendants/counter-claimants). At P. 615 of the records, the lower Court intoned: “The bone of contention in this case is who has the Statutory Right of Occupancy in relation to the entire land situated at No. 2, 2A and 2B, Degema Close, Apapa Lagos registered as Title No. M02032”.Nonetheless, the lower Court still acted against the current of binding case law by starting off with a consideration of the Appellants’ (defendants’) counter-claim before considering the Respondent’s (claimant’s) main claim. It ought not to be so!
The case pleaded by the Respondent (claimant) in the main claim was that the property subject matter of the suit was acquired in 1974 with the aid of a loan from United Bank for Africa (UBA), which loan was to be repaid from funds generated from the gaming machine business of P. C. Ezenwa & Co within 10 months, but the late Igwe P. C. Ezenwa (who was managing the gaming business and receipts of income therefrom) failed to advance any funds towards repaying the loan, whereupon he renegotiated the loan in order to stave off the Bank’s threat of foreclosure; and that the “the loan was fully repaid in 1977 with no contribution nor support whatsoever from PC Ezenwa & Co nor from Igwe PC Ezenwa”. The Respondent relied on Exhibit 20 (i.e. UBA’s letter dated 12/1/77) and maintained that “P. C. Ezenwa & Co is no more than a business name of partnership” owned by him and Igwe P. C. Ezenwa which “is incapable of owning any right to title or interest in any property”. But there is no gainsaying whatsoever that title resided with the Respondent and Igwe P. C. Ezenwa who were trading as P. C. Ezenwa& Co at all material times. Exhibit 18 is the Registration of Business Name Form 1 dated 10/7/73 (tendered by the Respondent), showing P. C. Ezenwa and Alexander Orakwusi as proprietors/partners of P. C. Ezenwa & Co. What seems to me obvious therefore is that the property in question was a partnership property within the meaning and intendment of S. 19(3) of the Partnership Law of Lagos State, which provides that:
“Property is partnership property if –
(a) it is acquired in the name of the partnership; or
(b) it is acquired in the name of one or more persons with an indication in the instrument transferring title to the property or person’s capacity as a partner or of the existence of a partnership whether or not the name of the partnership is indicated.”
The Respondent maintained that upon liquidating the loan, the title deed of the property was deposited with the bank (UBA) sometime inApril 1977 to collateralise documentary credit and overdraft facilities extended to Mefo Construction and Engineering Company Limited (being a company in which the Respondent, Igwe P. C. Ezenwa and two others were directors/shareholders) as evidenced by P. C. Ezenwa & Co’s letter dated 1/4/77; and that when the bank threatened to sell the property, one Fadel Mattar (deceased) and himself provided the entire funds with which the said documentary credit and overdraft facilities were liquidated. Reliance is placed on UBA’s letter of 23/1/81, the Respondent’s letter to UBA dated 18/2/81, and an Agreement between Fadel Mattar (deceased) and the Respondent. The Respondent further asserted that even though his name and that of Igwe P. C. Ezenwa are registered as owners of the property, “there is a common intention of both parties to hold the said title in trust to the exclusive benefit of the 2nd claimant (Respondent) having solely seen through the deal and discharged obligations and took the losses as the person in whom the beneficial interest is solely vested”; that Igwe P C Ezenwa “had expressly in writing and by his conduct rejected having any beneficial interest or having any share in the property registered as held by A.O. Orakwusi and P.C. Ezenwa (both trading as PC Ezenwa& Co”; and that he was in exclusive possession of the property over the years until recent attempts by P. C. Ezenwa to claim interest. That was the basis upon which the Respondent claimed the following reliefs:
“i. A declaration that the 2nd Claimant is the sole beneficial owner of the right of occupancy in and over the entire land registered under Title No. M02032 to the exclusion of Igwe P. C. Ezenwa and any other person claiming through him.
ii. A declaration that Igwe P. C. Ezenwa is one of the registered owners of the aforesaid land as a trustee of the title vested in him for the benefit of the 2nd claimant.
iii. Damages for trespass committed by the 1st defendant by the forcible and unlawful occupation of the premises situate at and known as No. 2B Degema Close, Apapa, Lagos.
iv. An Order for payment of damages by the 1st defendant in a sum to be assessed at the rate of the annual rental value until possession is given up by the defendants.
v. An injunction restraining the 1st defendant from continuing or repeating the trespass.”
In entering judgment for the Respondent as claimed, the lower Court held thusly (at pp. 628 – 629 of the records):
“These inconsistencies in the case of the Defendant/Counter-claimant show that in a claim for title on the surface of the property would belong to both 2nd Claimant and the [late] P. C. Ezenwa.
Having established this, lets now move on to the issue that the 2nd Claimant raised which was that by virtue of him paying the loan alone without the help of P. C. Ezenwa therefore the property is now fully owned by him. 2nd Claimant also pleaded that the failure of Mefo Construction was as a result of the Late P. C. Ezenwa misappropriating the funds. However, in my view no evidence in regard to this was laid before the Court. 2nd Claimant on the other hand pleaded in paragraph 11, 13-19 of the amended Statement of Claim and credibly tendered some documents to show the pay of, and liquidation of the loan.
First and foremost, to give background to the issue of loan the 2nd Claimant and P.C. Ezenwa wrote a letter to UBA dated 1st April, 1977marked Exhibit 5 and 5A pledging Title No. M02032 as collateral for Mefo Construction & Engineering Company Limited. It is noted by this Honourable Court the parties referred to themselves as beneficial owners of the leasehold title of the properties.
The amount of loan was N250,000.00 Documentary Credit facilities and N250,000.00 overdraft facilities. To pay the default the 2nd Claimant in conjunction with one Mr. Fadel Mattar and some foreign partners (Tennant Industrial Export Ltd) by virtue of Exhibit 1D3B now Exhibit 21,1D3A now Exhibit 20, and 5B which they all agreed to liquidate the Documentary Credit and overdraft facilities. By Exhibit 5A a letter dated 18th February, 1981 in the letter a Bank Cheque No. B.121959 dated 17th February, 1981 for the Sum of N272,502.01 was enclosed to offset the indebtedness of Mefo Construction & Engineering Company Limited. A Letter dated 11th March, 1981 from UBA marked as Exhibit 1D3C now Exhibit 23 confirmed the receipt of the Cheque and the extinguishing of the liability and in addition, that the title deeds will be released.
Therefore, in respect of the above, it has been clearly shown that the payment of the defaulting loan was by the sole efforts of the 2nd Claimant alone without any input from the Defendants who was not able to establish otherwise. The Claimant succeeds on this issue and I so hold.”
It can be gleaned from the foregoing that the lower Court found that: (i) title on the surface of the property would belong to both the 2nd Claimant (Respondent) and Igwe P. C. Ezenwa; (ii) the 2nd Claimant (Respondent) and P. C. Ezenwa were described as beneficial owners of the leasehold title of the property in Exhibit 5/5A (i.e. the letter dated 1/4/77 written to UBA by P. C. Ezenwa & Co and jointly signed by the Respondent and P. C. Ezenwa pledging Title No. M02032 as collateral for the facilities extended to Mefo Construction & Engineering Company Limited); and (iii) it was clearly shown “that payment of the defaulting loan” was by the sole efforts of the 2nd Claimant (Respondent) without any input from P. C. Ezenwa. Thus, notwithstanding its earlier finding that “title on the surface of the property would belong to” both the Respondent and Igwe P. C. Ezenwa who described themselves as “beneficial owners” Exhibit 5/5A, the lower Court decreed title in favour of the Respondent on the basis that the defaulting loan (for which the property was pledged as collateral) was liquidated by the sole efforts of the Respondent without any input from Igwe P. C. Ezenwa. And that is the crux of the instant appeal.
It is forcefully agitated on behalf the Respondent that apart from the fact that Igwe P. C. Ezenwa ought to have joined hands with the Respondent to repay the loan for the property, he was also under obligation to share profits made of the business name with the Respondent, as such “it is inequitable for the Appellants to claim any interest in the property”, and the lower Court’s invocation of the equitable doctrine of resulting trust was justified, calling in aid the cases of OLAIDE TUGBOBO v CHIEF FARAMOBI ADELAGUN (1974) LPELR-3271 (SC), CHIEF F. S YESUFU & ANOR v KUPPER INTERNATIONAL N.V. (1996) LPELR-3519 (SC) and PROF THEOPHILUS ADELODUN OKIN & ANOR V MRS AGNES IYEBA OKIN (2016) LPELR-41165 (CA). I have read the judgment appealed against once and again. Quite contrary to the Respondent’s contention that the invocation of the equitable doctrine of resulting trust was justified, there is no finding on, or invocation of resulting trust anywhere in the judgment. The farthest the lower Court went was to review counsel’s submission on the point without more (at pp. 631 – 632 of the records) thusly: “They also stated that since the 2nd Claimant paid the loan fully by himself and case law is replete that where ownership of property has been vested on the actual person who paid the purchase price even where his name is not reflected in the title documents, the Court of equity is ready to presume ownership in favour of the person who paid the property on the principles of constructive, implied and resulting trusts. ADEKEYE & ORS v AKIN-OLUGBADE (1987) LPELR-104(SC) amongst others were relied on”.
Fundamentally, it does not seem to me that the peculiar facts and circumstances of the case at hand donated any valid basis for invoking the equitable principles of constructive, implied and resulting trusts and the submissions of Respondent’s counsel in that regard are overly misconceived. At P. 627 of the records,the lower Court stated that: “I must hold that on the preponderance of evidence and balance of probabilities that is to be held to (sic) that the 2nd claimant A. O. Orakwusi was a partner and co-proprietor of P. C. Ezenwa& Co”. The property subject matter of the suit was acquired with a loan from UBA in 1974, and the Respondent relied on UBA’s letter dated 12/1/77 (Exhibit 20) as proof of his averment that “the loan was fully repaid in 1977 with no contribution nor support whatsoever from P. C. Ezenwa& Co nor P. C. Ezenwa”. But an intimate reading of Exhibit 20 reveals that it is not addressed to the 2nd claimant personally. Rather, it is addressed to: “The Manager, P. C. Ezenwa & Company, 39 Campbell Street, LAGOS”. And even then, UBA merely expressed gratitude for “your remittance of N69,000 in December 1976 in reduction of your indebtedness to us” and seized the “opportunity to advise that a sum of N2,305.62 is still outstanding on your account and request to know when we may expect your further remittance in total liquidation of this balance”. There is nothing on the face of Exhibit 20 which suggests even remotely that the loan with which the property was acquired was repaid personally by the Respondent and not by P. C. Ezenwa & Co whose principal place of business at all material times was No. 39 Campbell Street, LAGOS (as shown in the registration documents copied at pp. 245 – 261 of the records).
Crucially, Exhibit 5/5A dated 1/4/77 is a letter jointly signed by Igwe P. C. Ezenwa and A. I. Orakwusi pledging Title Deed No. M02032 by way of collateral for the Account of Mefo Construction & Engineering Company Limited in favour of UBA. The pledge was made after the initial loan with which the property was acquired had been fully liquidated and UBA had issued Exhibit 20 in acknowledgement, before Igwe P. C. Ezenwa and A. I. Orakwusi subsequently signed Exhibit 5/5A jointly not only as“proprietors of P. C. Ezenwa& Co” but also as “the beneficial owners of the leasehold title in the properties No. MO 2032…”. It being so, when and how the parties conceived the alleged “common intention…to hold the said title in trust to the exclusive benefit of the 2nd claimant(Respondent) having solely seen through the deal and discharged obligations and took the losses as the person in whom the beneficial interest is solely vested” remains a puzzling mystery, even as the Respondent placed nothing before the trial Court to substantiate his assertion that Igwe P. C Ezenwa “had expressly in writing and by his conduct rejected having any beneficial interest or having any share in the property registered as held by A. O. Orakwusi and P. C. Ezenwa (both trading as P. C. Ezenwa & Co”. No letter or other document by which Igwe P. C Ezenwa allegedly rejected having any beneficial interest in the property “expressly in writing” was produced in evidence.
The point to underscore is that the “defaulting loan” said to have been repaid “by the sole efforts of the 2nd Claimant alone without any input from the Defendants” (as held by the lower Court) was not the initial loan with which the property was acquired in 1974, but the documentary credit and overdraft facilities extended to Mefo Construction and Engineering Company Limited in April 1977 for which the property was pledged as collateral. Since the lower Court did not make any finding that the purchase price for the property was solely paid by the Respondent, there is no legal or factual basis to presume ownership in his favour on the principles of constructive, implied or resulting trusts. As stated hereinbefore, the property was pledged in favour of UBA on 1/4/77 by both P. C. Ezenwa and the Respondent as proprietors/partners of P. C. Ezenwa& Co and “beneficial owners” thereof. Thus, Igwe P. C. Ezenwa did not (nay, cannot) lose or forfeit his ‘beneficial owner status’ simply because the Respondent and Fadel Mattar (deceased) are said to have provided all the funds with which the indebtedness of Mefo Construction & Engineering Company Limited was liquidated without any assistance or contribution from Igwe P. C. Ezenwa or P. C. Ezenwa & Co. I would hate to think otherwise.
Quite contrary to the arguments forcefully pressed on behalf of the Respondent, paying a debt arising from the pledge made by both proprietors/partners of P. C. Ezenwa & Co cannot, by any stretch of the imagination, be equated to a situation in which a resulting trust may be presumed in favour of the person who paid the purchase price of a property. It is hardly necessary to state that making payment to redeem a property pledged as collateral to secure credit facilities extended to a third party and payment of purchase price of a property are poles apart. The scenario with which we are here confronted is simply one in which one partner (in this case, the Respondent) is said to have discharged an obligation (debt) owed by the partnership (P. C. Ezenwa& Co) in order to redeem partnership property that was on the verge of being sold by UBA in satisfaction of a pledge made by the partners to be responsible for the indebtedness of a third party (Mefo Construction & Engineering Company Limited).
A necessary incidence of partnership is that each of the partners is in law jointly and severally liable with his co-partners for the debts and liabilities of the partnership [see YESUFU & ANOR v KUPPER INT’L & ANOR (1996) LPELR-3519(SC) 1 at 18], whilst s. 23(ii) of the Partnership Law of Lagos State provides that: “The firm must indemnify every partner in respect of payments madeand personal liabilities incurred by them in the ordinary and proper conduct of the business of the firm, or in or about anything necessarily done for the preservation of the business or property of the firm”. See also S. 24 (2) of the Partnership Act, 1890. Thus, whilst a partner who makes payment on behalf of the partnership may be entitled to claim reimbursement from the partnership or other partner(s) upon proper accounts being rendered, he certainly cannot claim exclusive ownership of partnership property on the basis that he solely paid partnership debt to redeem the property without any contribution or support from the partnership or his co-partner(s).
I take the considered view that both Igwe P. C. Ezenwa and A. I. Orakwusi remained partners/proprietors of P. C. Ezenwa& Co and beneficial owners of all that property registered as Title MO 2302 at the Lagos Land Registry in their joint names at all material times, and in the absence of credible evidence of assignment of interest in the property by one of the partners/proprietors of P. C. Ezenwa & Co in favour of the other, neither of them can validly claim beneficial ownership thereof to the exclusion of the other. Quite clearly, the lower Court got it amiss in adjudging the Respondent as the sole beneficial owner of the property subject matter of the suit. Issue 2 will be and is hereby resolved in favour of the Appellants against the Respondent.
Let us shift attention presently to issue 3, which has to do with the dismissal of the Appellant’s counter-claim. The law is well settled that a counter-claim, for all intents and purposes, is a cross-action, fresh and completely independent, separate and distinct from the one commenced by the original claimant, but triable with the main claim for reasons of convenience. PETERSIDE v IMB (NIG) LTD [1993] 2 NWLR (PT 278) 712 at 731 – 732 and IGE v FARINDE [1994] 7 NWLR (PT 354) 42. A counter-claim connotes a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim. MAOBISON INTER-LINK LTD v UTC (NIG) PLC [2013] 9 NWLR (PT. 1359) 197 at 209 –per Ariwoola, JSC (now CJN). A counter-claimant is therefore a claimant in his own right[see UNION BANK PLC v ISHOLA [2001] FWLR (PT. 81) 1868 at 1892], and like any other claimant in an action, he must prove his case in order for him to obtain judgment. See OBMIAMI BRICK & STONE LTD v ACB LIMITED [1992] 3 NWLR (PT. 229) 260 at 298-299,JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC [2001] 7 WRN 1 at 18, PRIME MERCHANT BANK v MAN-MOUNTAIN COMPANY [2000] 6 WRN 130 at 134, WALTER v SKYLL NIG. LIMITED [2000] 13 WRN 60 at 98, OGBONNA v ATTORNEY-GENERAL, IMO STATE [1992] 1 NWLR (PT. 220) 647, NSEFIK & ORS v MUNA& ORS [2013] VOL. 12 MJSC (PT 1) 116, BILANTE INT’L LTD v NDIC [2011] 15 NWLR (PT 1270) 407,KOLADE v OGUNDOKUN [2017] 18 NWLR (PT 1596) 152 and ATIBA IYALAMU SAVINGS & LOANS LTD v SUBERU [2018] 13 NWLR (PT 1639) 387.
The Appellants’ counter-claimed against the Respondent as follows:
“(A) An Order directing the Defendant to the counter-claim to pay to the 1st counter-claimant the sum of N477,350.00 as special damages for loss and destruction of the 1st counter-claimant’s properties.
(B) Interest on the Judgment Sum of N477,350.00 at the rate of 21% per annum with effect from 3rd March, 1990 until judgment is delivered and thereafter at the rate of 15% until the Judgment Sum is fully liquidated.
(C) A declaration that the property situated at No. 2, 2A and 2B Degema Close Apapa Registered as Title No. M02032 belongs solely to late Igwe P.C. Ezenwa trading under the name and style P. C. Ezenwa & Co.
(D) An Order that the Defendant to the counter-claim delivers up possession to the counter-claimants of the property registered under Title No. M02032 and situate at No. 2B, Degema Close Apapa Lagos.
(E) A Declaration that the Defendant to the counter-claim is not entitled or authorised to enter into any lease agreement on behalf of P. C. Ezenwa& Co. or in any other name without the consent and authority of the counter-claimants first had and obtained.
(F) A declaration that the Defendant to the counter-claim is not a partner in the business of P. C. Ezenwa& Co.
(G) An Order of this Honourable Court directing the defendant to the counter-claim to render accounts to the counter-claimants of all the moneys received by the Defendant to the counter-claim including rent, before and after the inception of this matter in March, 1990till date, from the property registered under Title No. M02032 and situate at No. 2B, Degema Close Apapa Lagos.
(H) An Order of the Honourable Court directing the defendant to the counter-claim to pay to the counterclaimants all moneys received by the 2nd Claimant including rent, before and after the inception of this matter in March 1990 till date, over the property registered under Title No. M02032 and situate at No. 2B Degema Close Apapa.
(I) An Order of perpetual injunction restraining the defendant to counter-claim, either by himself, his servant, agents, privies or howsoever from parading himself or holding himself out as the owner/landlord or part owner of the property situate at No. 2, 2A and 2B Degema Close, Apapa registered as Title No. M02032 or from disturbing the possession of the Counter Claimants over the property.
(J) Costs of action.”
The Appellants concede that Reliefs C, D, F and I of the counter-claim are no longer feasible in light of the lower Court’s finding that the late Igwe P. C. Ezenwa and Alexander Orakwusi were partners/proprietors of P. C. Ezenwa & Co., and that the evidence adduced show on the surface that both of them are beneficial owners of the property subject matter of the suit that generated this appeal. There is no appeal against these findings, and it is hardly necessary to state that findings not appealed against remain binding and conclusive. See DABUP v KOLO (1993) 12 SCNJ 1, AKINLAGUN v OSHOBOJA(2006) 5 SC (PT II) 100 and YALAJU AMAYE v A. R. E. C LTD & ORS (1990) 6 SCNJ 62.
It does not seem to me that Reliefs E, G and H of the counter-claim (which are founded on the pre-existing partnership obligations between the deceased Igwe P. C. Ezenwa and the Respondent) could have been granted by the lower Court. These items of the counter-claim take for granted that the partnership remains a going concern, whereas by S. 32(a) of the Partnership Law of Lagos State, “every partnership is dissolved as regards all the partners by the death or bankruptcy of any partner”. See also s. 33(1) of the Partnership Act, 1890. Notwithstanding that, a share of the partnership at the date of a partner’s death accrues to his estate, what cannot escape notice is that the counter-claim was not brought for or on behalf of the Estate of Late Igwe P. C. Ezenwa. Rather, the averment in para. 49 of the Statement of Defence and counter-claim (at p. 186 of the records) is that: “The counter-claimants have the authority and consent of the said P. C. Ezenwa & Co. to bring this counterclaim on its behalf”. It is therefore obvious that the counterclaim as constituted is not grantable.
What is more, Reliefs A and B of the counter-claim (which are not founded on the partnership relationship) were rightly dismissed by the lower Court as unproven. Contrary to the Appellants’ contention, the averment that the Respondent deployed thugs to evict the 1st Appellant and/or destroyed the various items claimed as special damages was properly traversed in the reply to Statement of Defence and Defence to counter-claim. Being claims in special damages for which strict proof is required, the 1st Appellant did not satisfy the required threshold of strict proof in order to be entitled to the grant of Reliefs A and B. I entertain no reluctance in resolving Issue 3 against the Appellants.
Conclusion
This appeal succeeds in respect of the main claim, but fails in respect of the counter-claim. That is the beauty (and irony) of our adversarial legal system. The part of the judgment of the High Court of Lagos State delivered on 4/3/20 in Suit No. LD/539/90 which adjudged the Respondent [Alexander O. Orakwusi] as sole beneficial owner of the property registered as Title No. MO 2302 at the Lagos Land Registry to the exclusion of Igwe P. C. Ezenwa and anyone claiming through him, as well as the injunctive orders and possessory rights decreed in his favour are hereby set aside. The part of the judgment dismissing the counter-claim is hereby affirmed. There shall be no order as to costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the leading judgment delivered by my learned brother, Peter Oyinkenimiemi Affen, JCA. I endorse in toto the judicial reasoning and conclusion in it. I too allow the appeal in part as decreed in the leading judgment. I abide by the consequential orders contained therein.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which this appeal has been allowed in part.I agree with and adopt as mine the comprehensive resolution of the issues as done by my learned brother. I abide by the orders made in the leading judgment.
Appearances:
Clifford Nwude, Esq. with him, S. Shittu, Esq. For Appellant(s)
E. E. Asia, Esq. with him, O. C. Anusionwu, Esq. For Respondent(s)
