HAPPY LAND HAPPY WORLD LIMITED v. UNION BANK OF NIGERIA PLC & ORS (2017)

HAPPY LAND HAPPY WORLD LIMITED v. UNION BANK OF NIGERIA PLC & ORS

(2017)LCN/10151(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of July, 2017

CA/L/108/15

RATIO

FINDINGS OF THE COURT: THE POSITION OF THE LAW WHERE THE RESPONDENT DID NOT APPEAL OR FILE A CROSS-APPEAL AGAINST THIS FINDING OF THE TRIAL COURT

The respondents did not appeal or file a cross-appeal against this finding of the trial Court that the issue of limitation of action was academic. Thus raising the point in this appeal is an attempt to circumvent the conclusion of the trial Court without first challenging it by a cross-appeal seeking for the setting aside of the conclusion. A finding not appealed against remains valid and subsisting and an appellate Court would have no jurisdiction to consider and determine such an issue. Again, the party is deemed to have admitted the same and cannot be heard to question the finding on appeal. See: Ijale v. AG Leventis & Co. Ltd (1959) 5 CNLR 253 and Awodi v. Ajagbe (2015) 3 NWLR (Pt. 1447) 578, 599. PER JOSEPH EYO EKANEM, J.C.A.

LIMITATION LAW: WHETHER THE DEFENCE OF LIMITATION OF ACTION CAN BE RAISED AT ANY TIME OR STAGE

I shall first deal with the contention of appellant’s senior counsel that defence of limitation of action ought to be pleaded and that the respondents having not filed a respondent’s notice to affirm the judgment on grounds other than those relied upon, it was futile to seek to raise it at this stage. The short answer to the contention is to be found in the case of Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137, 179-180 where Adekeye, JSC, stated that:

“Limitation Law and locus standi are both threshold issues which can be raised anytime or for the first time in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22 Rule 2 of the Lagos State High court (Civil Procedure) Rules. It transcends any High court Rules. It can be raised by preliminary objection at any stage of the proceedings, before any Court, by any of the parties or even suo motu by the Court.” See also Ayonronmi v. Nigerian National Petroleum Corporation (2010) 8 NWLR (Pt. 1197) 616, 633. PER JOSEPH EYO EKANEM, J.C.A.

ISSUE OF JURISDICTION: WHETHER AN APPELLATE IS ENTITLED TO PRONOUNCE ON AN ISSUE OF JURISDICTION WHERE THE TRIAL COURT FAILED TO PRONOUNCE ON IT

Where a trial Court failed to pronounce on an issue of jurisdiction an appellate Court is entitled to pronounce on it. See C.G.G. (Nigeria) Ltd v. Ogu (2005) LPELR- 824(SC) or 366 (2005) 8 NWLR (Pt. 927) 366. PER JOSEPH EYO EKANEM, J.C.A.

LIMITATION LAW: THE ESSENCE AND NATURE OF LIMITATION LAW; HOW TO DETERMINE IF AN ACTION IS STATUTE-BARRED

The essence of limitation law is that the legal right to institute an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. In determining if an action is statute-barred, the yardsticks to be used are (a) the date when the cause of action accrued (b) the date of commencement of the suit as indicated on the writ of summons and (c) period of time prescribed to bring such an action to be ascertained from the relevant statute. The Court is to look at the writ of summons and the statement of claim to see when the wrong was committed which gave the plaintiff a cause of action and compare that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute-barred. See Ajayi v. Adebiyi supra and Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490, 522. PER JOSEPH EYO EKANEM, J.C.A.

LIMITATION LAW: WHETHER LIMITATION LAWS APPLY TO CONTINUING TRESPASS

Thus the appellant’s cause of action was founded on continuing trespass. This negates the application of any limitation law so long as the trespass continues. In Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122, 138 Oguntade, JSC stated that

“More importantly, the suit of the respondents was in trespass. For everyday the appellants remained on the land in dispute… they committed a fresh act of trespass which was actionable. It would therefore not avail them to contend as they did that the cause of action arose on a particular date since they remained on the said land even at the time the suit was being heard”.

In Obueke v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327, 351 Onnoghen, JSC, held thus

“Also settled is the principle of continuity of trespass or successive acts of trespass constituting separate and independent actionable wrongs in trespass. It follows that where there is continuity of acts of trespass, successive actions can be maintained by a plaintiff from time to time in respect of the continuance of trespass …

It is from a combination of the above principles that emerged the doctrine of continuing trespass giving rise to actions from day to day as long as the wrong lasts. In such a situation/circumstance an action for trespass cannot be defeated by a plea of limitation of time …” PER JOSEPH EYO EKANEM, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

HAPPY LAND HAPPY WORLD LIMITED Appellant(s)

AND

1. UNION BANK OF NIGERIA PLC
2. U.B.N PROPERTY COMPANY LIMITED
3. ATLANTIC NOMINEES LIMITED Respondent(s)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State, Lagos Judicial Division (the trial Court) delivered on 19/12/2014 in Suit No. LD/1516/2010. In the judgment the trial Court dismissed the claim of the appellant. Aggrieved by the judgment, the appellant appealed to this Court by way of a notice of appeal filed on 22/12/2014 which bears five grounds of appeal.

?The facts of the case leading to the appeal are that the Lagos State Government granted to the appellant 6,834 hectares of land at Lekki Peninsula, Lagos, under a Certificate of Occupancy. The grant was reduced to 250.03 hectares. In November, 1993 a part of the land was sold to satisfy judgment debts in Suit No. LD/2406/92 and LD/2472/92. The part of the land sold was described in the certificate of returns of the Deputy Sheriff as comprising 65 hectares with the plots numbered. Attached to the certificate of return was a survey plan No. LS/D/LA444 which identified the plots sold by numbers. A letter dated 14 May 1997, by the Deputy Sheriff put the number of plots sold at 224 plots. The appellant

re-asserted its claim to the unnumbered plots totaling 4 plots. Sometime in May, 2010, an advertisement by the respondents was published in an edition of the Punch Newspapers in which the respondents represented themselves as owners of the unnumbered plots.

Consequently, the appellant (as plaintiff) sued the respondents (as defendants) claiming the following reliefs as set out in their second amended statement of claim.
“i. N550 Million as damages as restitution/compensation for the continuing trespass to the claimant’s land measuring 5 (five) acres or (1.8 hectares) at Ajiwe Alasa village via Lekki, covered by the Notice of Restoration contained in Legal Notice No. 74 of October 1993.
ii. An injunction restraining the Defendants, its servants, agents, privies and otherwise howsoever from undertaking or further undertaking any works, construction or anything whatsoever on the claimants land.
8. Further and other equitable reliefs”.

The respondents filed an amended statement of defence denying the claim of the appellant.

?After trial and taking of addresses, the trial Court dismissed the claim, holding that the four

unnumbered plots of land were part of the land sold to satisfy the judgment debt. The judgment is the subject of this appeal.

Pursuant to the rules of this Court, the appellant filed a brief of argument on 9/6/2015 which was deemed duly filed and served on 17/6/2015. The appellant also filed a reply brief on 21/4/2017 and the same was deemed duly filed and served on 9/5/2017. Both briefs were settled by Seyi Sowemimo, (SAN).

The respondents filed their brief of argument on 9/8/2016 which brief incorporates what is described as a “Preliminary Point of Law” attacking the jurisdiction of this Court. I intend to return to this anon.

In the appellant’s brief of argument, the following issues are distilled for the determination of the appeal:
“i. Whether on the totality of the evidence led, it was satisfactorily established that the sale carried out under execution covered the unnumbered plots not mentioned in the Certificate of Return.
ii. Whether a mistake or error on the Certificate of Return could have been unilaterally corrected with by the Defendants or Report of the Surveyor General’s office.

iii. Whether the defendants

led cogent evidence to establish that the execution relied on was regular and lawful.
iv. Whether the learned trial judge was entitled to hold in year 2014 that the defendants are entitled to four unnumbered plots in addition to those numbered in the Certificate of Return when no application had ever been made since 1993 to amend the writ of possession or Certificate of Return”.

In the respondents’ brief of argument, one issue is distilled for the determination of the appeal, viz:
“Whether on the totality of the evidence at the trial Court whether (in law) the learned trial Court properly dismissed the case of the Appellants in its entirety”

I will at this stage return to the respondents’ “Preliminary Point of Law” earlier referred to in this judgment. Counsel for respondents prefaced his argument under this head with the submission that issue of jurisdiction is fundamental to adjudication and can be raised at any stage in the proceedings, even for the first time in the Supreme Court. She stressed that it may be contained in the brief of argument though it is not contained in the notice of appeal. It was her contention that the right

of the appellant to initiate the suit at the trial Court had been extinguished and had become statute barred by virtue of Sections 16 and 21 of the Limitation Law of Lagos State 2003. She referred the Court to the writ of summons and the second amended statement of claim and evidence led at the trial Court. She noted that the grouse of the appellant is that the respondents trespassed on land belonging to it and that the Sheriffs of the trial Court in November, 1993 dispossessed the appellant of a large tract of land including the 5 acres of land (the subject matter of the suit) based on a judgment. She stressed that the land was handed over to the 3rd respondent and some others. She therefore asserted that the cause of action for trespass and injunction arose in November, 1993 while the writ of summons was filed on 27/7/2010, id est, 17 years and 4 months after the cause of action arose. This, she submitted, was contrary to Sections 16(2) and 21 of the Limitation Law of Lagos State. She cited in support of her submissionEgbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 and Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76.

Continuing, counsel argued that the

claims of the appellant have been ousted by Sections 47 and 48 of the Sheriffs and Civil process Act. This, she said, is because there was no application to set aside the attachment within 21 days of the attachment and there is still no such application. She concluded that the sale is therefore deemed absolute. In aid of her argument she cited and relied on Saleh v. Monguno (2006) 15 NWLR (Pt. 1003) 36 among other cases.

In his reply, appellant’s senior counsel submitted that the objection is misconceived as the appellant’s case is that the land in dispute did not form part of the land upon which execution was levied in 1993. It was his further submission that time only started to run in the con of this matter when the respondents placed an advertisement in the newspapers for the infrastructural development of the land which embraced appellant’s land which did not form part of the executed land. He stated that it was difficult to appreciate how the appellant was expected to initiate action when it was unable to obtain copies of the judgments upon which execution was levied. He contended that the fact that the judgments were missing and the evidence

of DW1 that the land was sold by private treaty and not by public auction as stated on the Certificate of Purchase/returns showed that the execution sales transaction smacked of fraud. Thus, he asserted, time could only begin to run when all the facts were discovered.

It was his further contention that the plea of limitation of statute is a defence which ought to be pleaded and that it could be defeated by certain factors like disability, mistake, fraud etc. He cited in support of his contention Sani v. Okene Local Government (2005) LPELR-1131 (CA). He observed that the claim of the appellant was founded on continuing trespass and that the appellant also claimed the equitable reliefs of restitution and injunction. This, he stated, defeated any defence of limitation; citing Obueke v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327 and Oyebamiji v. Lawanson (2008) 15 NWLR (Pt 1109) 122. He concluded by stating that the respondents did not file a respondents’ notice to sustain the judgment on grounds other than those relied upon by the trial judge and that it was therefore futile for the respondents to raise it as it did not arise from the notice of

appeal.

The trial Court in its judgment at page 257 of the record of appeal held as follows:
“Having thus found that the claimant is not the owner of the land in issue, a determination of whether or not its cause of action in the circumstance was caught by Limitation period, becomes academic …
I will therefore refrain from making any pronouncement on the issue of Limitation period raised by the Defendant”.

I shall

therefore discountenance the preliminary point of law raised by respondents’ counsel.
In case I am wrong, I shall proceed to consider the point.

See also

Ayonronmi v. Nigerian National Petroleum Corporation (2010) 8 NWLR (Pt. 1197) 616, 633.

It should also be noted that the respondents raised the issue of limitation of time in paragraphs 19 and 20 of their amended statement of defence but the trial Court refrained from making any pronouncement on the issue as it considered it to be academic. Where a trial Court failed to pronounce on an issue of jurisdiction an appellate Court is entitled to pronounce on it. See C.G.G. (Nigeria) Ltd v. Ogu (2005) LPELR- 824(SC) or 366 (2005) 8 NWLR (Pt. 927) 366.
I therefore discountenance the submission of senior counsel for the appellant.

the writ of summons and (c) period of time prescribed to bring such an action to be ascertained from the relevant statute. The Court is to look at the writ of summons and the statement of claim to see when the wrong was committed which gave the plaintiff a cause of action and compare that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute-barred. See Ajayi v. Adebiyi supra and Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490, 522.

By Section 16(2) of the Limitation Law, Cap 118, Laws of Lagos State 2003 no action for the recovery of land shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing the action. By Section 21 of the same law, after the expiration of the period fixed by the law for a person to bring action to recover land, the title of that person to the land shall be extinguished.
The contention of the respondents’ counsel is that the right of action accrued in November 1993 when execution was levied on the land. It seems to me that the respondents’ counsel

overlooked the averment in paragraph 12 of the second amended statement of claim that
“The claimants aver that the trespass is a continuing trespass and it is entitled in equity to restitution for the loss it is daily sustaining as a result of the trespass …”
Thus the appellant’s cause of action was founded on continuing trespass. This negates the application of any limitation law so long as the trespass continues. In Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122, 138 Oguntade, JSC stated that
“More importantly, the suit of the respondents was in trespass. For everyday the appellants remained on the land in dispute… they committed a fresh act of trespass which was actionable. It would therefore not avail them to contend as they did that the cause of action arose on a particular date since they remained on the said land even at the time the suit was being heard”.
In Obueke v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327, 351 Onnoghen, JSC, held thus
“Also settled is the principle of continuity of trespass or successive acts of trespass constituting separate and independent actionable wrongs in trespass. It follows that where

there is continuity of acts of trespass, successive actions can be maintained by a plaintiff from time to time in respect of the continuance of trespass …
It is from a combination of the above principles that emerged the doctrine of continuing trespass giving rise to actions from day to day as long as the wrong lasts. In such a situation/circumstance an action for trespass cannot be defeated by a plea of limitation of time …”
It follows that the contention of the respondents that the action of the appellant is statute-barred is not meritorious and I therefore reject it.

In regard to the contention by respondents’ counsel that the suit of the appellant is caught by Section 47 of the Sheriffs and Civil Process Act, it is my view that the contention is founded on quicksand and so cannot stand the test of scrutiny. Section 47 of the Sheriffs and Civil Process Act provides:
“At any time within twenty-one days from the date of the sale of any immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground

of such irregularity unless the applicant shall prove to the Court that he has sustained injury by reason of such irregularity”.

I have read the second amended statement of claim which was the foundation of the case of the appellant. Although references were made therein to “purported judgment” and absence of record of such judgments, the case of the appellant was squarely founded on its position that the four unnumbered plots of land in dispute were not part of the land sold in 1993 in execution of the judgments. The appellant is not challenging the sale of the land in execution of the judgments nor is it asking that the sale be set aside. I do not therefore see the relevance of Section 47 of the Sheriffs and Civil Process Act to the instant matter.

The preliminary point of law raised by the respondents is unmeritorious and I therefore dismiss it.

I now return to the substantive appeal.

I have already set out the issues formulated by counsel on both sides. I have looked at the issues formulated by counsel for appellant from the prism of the grounds of appeal contained in the notice of appeal. The grounds of appeal, shorn of

their particulars, read
“3.1 The learned trial judge erred in law and on the facts in holding that the claimant’s suit should have been instituted within 21 days of the execution levied on the claimant’s land at Ajiwe Alasa Village, Lekki, Lagos State when the land in dispute was not amongst the numbered plots upon which execution was levied”.
“3.2 The learned trial judge erred in law and on the facts in dismissing the claimants’ claim when the defendants had failed to produce the purported judgments in suit Nos. LD/2406/92 and LD/2472/92 which were the foundation of their interest in the land in dispute and their defence”.
“3.3 The learned trial judge erred in law in dismissing the claimants case and upholding the defendants defence when the evidence surrounding the execution allegedly carried out on the claimants land was not cogent but was sketchy inconsistent and unreliable”.
“3.4 The learned trial judge erred in law in holding that the Report of CW3 Mr. Sangowawa reinforced the defendants claim to the unnumbered plots of land which were the subject matter of the dispute when CW3 was not part of the team that undertook the execution and

he was not competent to speak on the conduct of the execution”.
“3.5 The learned trial judge erred in law and on the facts in holding that the claimants had not established their ownership of the land in dispute, when the claim to ownership of the land by the defendant stemmed from a fact acknowledgement of the claimant’s title and the purported sale undertaken in execution of judgment obtained against the claimant”.
“3.6 Judgment is against the weight of evidence”

I have set out the grounds of appeal above for the purpose of demonstrating that issues 2 and 4 formulated by the appellant do not flow from any of the grounds of appeal. Issues for determination in an appeal must relate to the grounds of appeal which represent the questions in controversy in the particular appeal. Where that is not the case, issues are liable to be struck out for being incompetent. See Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 and Amobi v. Nzegwu (2014) 2 NWLR (Pt. 1392) 510.

Consequent upon the above, I hereby strike out issues 2 and 4 of the appellant. The appellant is thus left with two issues for the determination of the appeal, viz; issues

(i) and (iii). It is my view that those issues represent the complaints of the appellant better than the single issue formulated by respondents’ counsel. I will therefore be guided by them in the determination of the appeal. I re-number issue (iii) as issue (ii). I propose to commence with considering issue (ii) first since it questions the regularity and lawfulness of the execution which resulted in the sale of the plots of land which has given rise to the suit leading to this appeal. Reference to defendants in the issue will be changed to respondents.
ISSUE (II). Whether the respondents led cogent evidence to establish that the execution relied on was regular and lawful.

Senior counsel for the appellant stated that the appellant in its pleading impugned the lawfulness of the execution by denying the authenticity of the judgments relied upon by the respondents and the regularity of the execution process. He contended that the respondents had the onus of producing their root of title, viz; the judgments which formed the basis of the execution and credible evidence that the execution was undertaken in accordance with the judgments. He said that

it was puzzling that the judgments delivered in suit NO. LD/2406/92 and LD/2472/92 were absent and even CW2, the Deputy Sheriff, testified that they had no record of the judgments. He argued that the existence of the judgment is an open question and that the whole scenario smacks of fraud. He argued further that the matter was compounded by the testimony of the DW1 that the land was bought by private treaty but when confronted with Exhibit C4, he recanted and admitted that it was by public auction.

Respondents’ counsel in his response noted that the appellant did not seek to set aside the sale by attachment. He stated that that meant that the appellant admitted the respondents’ title to the subject matter of the appeal.

?The contention of Senior counsel for the appellant is that it was not shown that the execution of the Judgment was lawful on the basis that (i) the judgments forming the basis of the execution were not authentic especially since the judgments were not produced in evidence and (ii) the evidence of DW1 was that the sale was by private treaty while Exhibit C4 shows that it was by public auction.

A communal reading of the

2nd amended statement of claim shows that the appellant did not challenge the authenticity of the judgments which formed the basis of the execution nor did it challenge the regularity of the execution. What was in issue at the trial Court was whether or not the four parcels of land in dispute constituted part of the land that was sold in execution of the judgments. There is no doubt that in the second amended statement of claim, the appellant pleaded such terms as “purported judgments in suit No. LD/2406/92 and LD/2472/92” and “purported judgment debt”. See paragraphs 5, 6 and 8 thereof. That does not amount to challenging the authenticity or genuineness of the judgments or their existence. The authenticity of the judgments cannot be challenged by merely referring to them as “purported”. Such a challenge must be done specifically with particulars of their inauthenticity.

Order 15 Rule 3 (1) of the Lagos State High Court (Civil Procedure) Rules, 2004, provides that
“In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases, in which particulars may be

necessary, particulars (with dates and items if necessary) shall be stated in the pleadings”.
Order 15 Rule 7(2) of the same Rules provides that
“Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.”
If the case of the appellant was that the judgments were not authentic thus making the attachment and sale of the land void it should have specifically pleaded the same with particulars of the inauthenticity. Having not done so, it follows that the authenticity of the judgments and their execution were not in issue at the trial Court and the respondents were not under any obligation to produce the judgments, defend their authenticity or prove the regularity of their execution.
?The object of pleadings is for each party to give notice to his opponent with clarity and precision of the case he has to meet. See Mbanefo v. Molokwu (2014) 6 NWLR (Pt. 1403) 377, 418 and Noibi v. Fikolati (1987) 3 SC 105. The appellant did

not challenge the authenticity of the judgments and their execution either clearly and precisely or at all as required by the law. It cannot seek to do so in this appeal as a party is not allowed to set up or maintain on appeal a different case from that which he presented at the trial Court. He must be consistent in stating his case. See Adegoke Motors Ltd. v. Adesanya (1989) 3 (Pt. 109) 250, Econet Wireless (Nig.) Ltd v. Econet Wireless Ltd. (2014) 7 NWLR (Pt. 1405) 1, 25 and Registered Trustees, AON v. NAMA (2014) 8 NWLR (Pt. 1408) 1, 37-38.
Furthermore, the fact that it was pleaded in paragraph 6 of the second amended statement of claim that attempts to obtain copies of the judgment proved abortive and that there was no record of such judgments did not amount to challenging the authenticity of the judgments.

In an unwitting acknowledgment of the position taken by me, appellant’s senior counsel at page 2 paragraph 3.1 of his brief of argument on issue (1) stated that
“The gravamen of the dispute between the parties in this appeal concerns the scope of the execution allegedly undertaken pursuant to the purported judgments delivered in

suit No. LD/2406/92 and LD/2472/92”

The mere fact that the DW1 stated in cross examination that the land was sold by private treaty but later stated that the sale was by public auction when shown Exhibit C17 is of no moment. This is because there was no pleading and no issue as to whether the sale was by private treaty or by public auction. Thus the evidence elicited from DW1 in cross-examination in that regard went to no issue. In the case of Lamurde Local Government v. Karka (2010) 10 NWLR (Pt. 1203) 574, 591, it was held that once facts are not pleaded and issues joined, no evidence can be led including under cross-examination on the aspects not pleaded. See also Ojoh v. Kamalu (2006) 136 LRCN 1130, 1158.

On the whole, I resolve issue (ii) against the appellant.
ISSUE 1- Whether on the totality of the evidence, it was satisfactorily established that the sale carried out under execution covered the unnumbered plots not mentioned in the Certificate of Return.

Learned silk for the appellant, as earlier stated in this judgment, stated that the gravamen of the dispute between the parties concerns the scope of the execution

allegedly undertaken pursuant to the purported judgment delivered in suit No. LD/2406/92 and LD/2472/92. He referred to Exhibits D4 and D7 as the returns made by the office of the Deputy Sheriff in respect of the execution. He contended that the execution is limited to the numbered plots of land identified on the certificate of return and does not extend to any unnumbered plots, more so as Exhibit D17 limits the plots sold under execution to 224 plots which is not more than 24 hectares. He quoted a part of the judgment of the trial Court and submitted that the trial Court relied heavily on the report of the Surveyor-General and the CW1. He submitted further that the report and the testimonies did not support the respondent’s case.

?Continuing, senior counsel argued that it was erroneous for the trial Court to have concluded that the sale of the land covered the unnumbered plots since that was the only way to make up the 65 hectares mentioned in Exhibit D4. He contended that the sole purpose of numbering of the plots on Exhibit D4 was to specifically identify the plots of land covered by the execution and that the description “65 hectares” was a false

and misleading description. He submitted that the trend of authorities is that plans attached to documents have a controlling effect in the determination of land conveyed in deeds. The following cases were cited and quoted in extenso to support the submission -Eastwood v. Ashton (1915) AC 900, Doe & Smith v. Galloway 110 ER 708 and Llewellyn v. Earl of Jersey (1843) 152 ER 767. He emphasized that the plan and the numbering were the controlling aspects of the description on the return and that DW1 testified that all plots sold were numbered.

Senior Counsel argued that the testimonies of CW1 and CW4 could not amount to an admission against the appellant. It was his position that certain aspects of the testimony of CW1 re-enforced the appellant’s case including his evidence that the land sold under execution was numbered. He stated that CW1 was the only person who could not see conflict of interest as he had acted for both the appellant and the respondents. He proceeded to tag the evidence of CW4 as speculative as he was not at the auction sale and did not derive his knowledge from any record from the Deputy Sheriff’s Office. He noted that the

surveyor who made the plan attached to Exhibit C17 had passed on and argued that CW4 was second-guessing the deceased surveyor and Court officials. Again, senior counsel further argued that evidence of subpoenaed witnesses (CW1, and CW4) ought not to have been held against the appellant as the two witnesses attended Court at the behest of the Court.

In his response, counsel for the respondents submitted that evaluation of evidence and ascription of probative value to it are the primary duties of the trial Court. He urged the Court not to interfere with the performance of that duty by the trial Court in this instance. He contended that the evidence of CW4 was hear-say evidence as she relied on records, information and interpretation of land documents but refused to testify as to the source of her knowledge and the professionals whom she said helped her to interpret land documents.

Counsel argued that the appellant did not prove their title to the land as title was put in issue by the claims for trespass and injunction. He referred to Exhibits C19A and C19B especially the observation in the former that the unnumbered plots belong to the 3rd

respondent. He stressed that the evidence of CW1 is adverse to the claim of the appellant while the evidence of CW3 corroborates the evidence of CW1. He submitted that their evidence amounted to a solemn admission in favour of the respondents as they were called by the appellant. He relied on Ikeni v. Efamo (1996) 5 NWLR (Pt. 446) 64 to buttress his submission.

In his reply learned silk for the appellant stated that CW4 testified that she was involved in various aspects of the activities leading to the dispute. He then submitted that it is not only officials of a company who were directly involved in a transaction who can testify on its behalf but other officers can do so from the available record of the company. He referred to and relied on Kate Enterprises Ltd v. Daewoo (Nig.) Ltd (1987) 7 SC 1. He went on to submit that CW4 was not competent to testify as to the extent of the land that was sold in execution of the judgment as he did not take part in the execution and the Surveyor-General was merely ordered to produce a dispute plan, which confirmed an overlapping.

The trial Court after reviewing evidence both oral and documentary, held that

the four plots or pieces of land in dispute formed the balance of some of the plots of land sold, in execution of judgments, to the 3rd respondent. Evaluation of evidence and ascription of probative value to it are the primary duty of a trial Court. Once there is proper evaluation of evidence by a trial Court, an appellate Court will not interfere unless the decision is perverse and has occasioned a miscarriage of justice. Where however evaluation of evidence does not involve the credibility of witnesses but non-evaluation or improper evaluation of evidence or the evaluation of documentary evidence, an appellate Court is in as good a position as the trial Court to do its own evaluation. See Ebba v. Ogodo (1984) 4SC 84, Lawal v. UTC (Nig.) Plc (2005) 13 NWLR (Pt. 943) 601 and First Bank (Nig.) Plc v. Ozokwere (2014) 3 NWLR (Pt. 1395) 439.

Exhibit C17 (the same as Exhibit D4) is the certificate of purchase of the land sold on 5/11/93 to the 3rd respondent.
The land sold is described therein as follows:
“65 hectares … Hectares No. Iden (see plan no LS/D/LA 444 Lekki origin U.T.M. (Zone 31) Eti Osa L.G.A.

Nos. 8, 9, 23, 24, 38, 39, 53,

54, 68, 69, 70, 71, 83-88, 98-105, 113-120, 128-135, 143-149, 157-163, 175-127, 188-191, 203, 204 & 244.”

The area sold is verged black on plan No. LS/D/LA444 referred to and attached to Exhibit C17. In the area verged black are the four unnumbered plots (below plot 135) which are the subject of this matter. Those plots or pieces of land are irregularly shaped and smaller in size than other plots on the plan. It should be noted that plots 120 and 135 are irregular in shape and smaller in size than the other plots sold to the 3rd respondent. It is not the case that the plots were sold in part. In Exhibit C19A (the Surveyor-General’s report dated 12/11/2012 made in obedience to the order of the trial Court), it is stated in observation (ii) that

“The Area of overlap verged Red colour between claims of the claimant and defendant measuring approximately 1.407 hectares though not numbered on the High court Allocation sheet forms the balance of the area of plots No. 105, 120 and 135 which are irregular in shape hence do not make up to the 1 hectare area block like other plots.”

?The above observation of the Surveyor-General supports the case

of the respondents and justifies the conclusion of the trial Court. What is more, the appellant pleaded in paragraph 15 of its second amended statement of claim at page 171 of the record that it was relying on the said report. The CW4 also testified to that effect in Paragraph 15 of her written deposition (Exhibit 20). The appellant is therefore bound by the report of the Surveyor-General in Exhibit C19A and cannot run away from it.

It was the contention of appellant’s senior counsel that going by the authority of Eastwood v. Ashton supra and other foreign authorities cited by him, the plan and the numbering should be preferred to the dimension of the land given in Exhibit C17, viz; 65 hectares. Even going by the plan alone, the area sold to the 3rd respondent and verged black includes the four plots the subject matter of the case. Thus by both documentary and oral evidence, they formed part of the land sold to the 3rd respondent.

It must be stated that the dimension of the land stated in Exhibit C17, the number of the plots set out therein and the plan attached thereto are complimentary in regard to the identification of the land sold to the

3rd respondent and so do not warrant the discarding of one for the other as argued by appellant’s Senior Counsel. Therefore the case of Eastwood v. Ashton supra and the other cases cited by him do not apply to the case in hand.

The CW1, called by the appellant, testified at P222 of the record of appeal about the four unnumbered plots in disputes as follows:
“That portion is not property of claimant (appellant) but that of the 3rd Defendant (3rd respondent)” NB – words in brackets are mine for clarity and ease of understanding.

The CW1, I re-state was the witness of the appellants. The fact that he attended Court on the basis of a subpoena does not change that fact. He was listed as witness No. 2 of the appellant in its list of witnesses (see page 6 of the record). He was not declared a hostile witness. In Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283, 308 Tobi JSC, stated the position of the law in that regard as follows:
“If a witness called by a party gives evidence against that party, the evidence will be regarded as one against interest.”
See also Ikeni v. Efamo (1996) 5 NWLR (Pt. 446) 64, Elewuju v. Onisaodu (2000) 3 NWLR (Pt.

647) 95 and Okoya v. Santilli (1994) 4 SCNJ (11) 333, 375, where the Supreme Court held that a party guarantees the reliability of his witness and must take the result of the evidence of his witness. Appellant is therefore bound by the evidence of CW1 quoted above.
With all due respect to learned silk for the appellant, his spirited efforts to discredit the evidence of CW1 are but laboring in vain. As I have already stated, CW1 was not declared a hostile witness. No effort was made by senior counsel in that regard. In Odi V. Iyala supra 308 Tobi, JSC stated
“Where a witness called by a party gives evidence against his interest, our adjectival law requires the party to urge the Court to declare him a hostile witness for purposes of cross examination. This is to enable the party discredit the evidence of the witness and reject the evidence.”
That was not done and so appellant is stuck with the evidence of CW1.

Appellant’s Senior Counsel harped upon the evidence in Chief of the CW1 that he was not in a position to know the size of the land ordered by the Court, whether 65 plots or 65 hectares. This is of no moment as the dimension of the

land sold by the Sheriff is clearly stated as 65 hectares in Exhibit C17 (the certificate of purchase). I also do not see any conflict of interest in CW1 having acted for the appellant and 3rd respondent at different times. I also fail to see him as a witness having an interest to serve.

Senior counsel for the appellant called in aid Section 128 of the Evidence Act, 2011 to submit that the evidence of CW1 and CW4 cannot alter the terms of the certificate of purchase which are premised on numbered plots. I have already stated that the identification of the land sold to 3rd respondent lies in its stated dimension, the number of plots set out in Exhibit C17 and the plan. Furthermore, though Section 128(1) of the Evidence Act forbids extrinsic evidence to contradict, alter, add to or vary the content of a written contract, grant etc, it also provides for exception in sub-sections (1) a – (e), (2) and (3) thereof. one of the exceptions in Section 128 (1) (a) is that matters may be proved which, inter alia, would entitle any person to any judgment, decree, or order relating to any such grant or contract.

I therefore discountenance the contention of

senior counsel for appellant.

It is pertinent to state at this point that contrary to the submission of the respondents’ counsel, the evidence of CW4 ? Mrs. Adejare Ajayi – was not hearsay evidence as she testified as the Chief Executive of the appellant company. A company being a juristic or artificial person can only act through its agent, servant, and any agent, servant or official of a company can therefore give evidence to establish any transaction entered into by the company even though he did not personally take part in the transaction on behalf of the company. The fact that such an agent, servant or official of the company did not personally participate in the transaction on which he has testified only goes to the weight to be attached to such evidence. See Kate Enterprises Ltd v. Daewoo (Nig) Ltd (1985) 2 NWLR (Pt. 5) 116, Anyaebosi v. R.T. Briscoe (Nig) Ltd (1987) 3 NWLR (Pt. 59) 84 and Ishola v. Societe Generale Bank (Nig.) Ltd (1997) 47 LRCN 336.

She (CW4) testified that her husband (deceased) took a major part in the transaction the subject of the suit, that her knowledge was limited to the records and information told to her

and that she could not professionally interpret land documents though there were people working under her who did so for her. Her evidence pales into insignificance when weighed against the evidence of CW1, CW3 and Exhibits CW17 and CW19 A and B which weigh heavily in favour of the respondents.

I see no reason to interfere with the findings of the trial Court in this appeal.

I therefore resolve issue (i) against the appellant.

In the final analysis, I see no merit in this appeal. It is hereby dismissed. The judgment of the trial Court delivered on 19/12/2014 is hereby affirmed. I assess the costs of this appeal at N50,000.00 against the appellant in favour of the respondents.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the pleasure of reading in draft the Judgment delivered by my learned brother, Ekanem, J.C.A., and I agree with the reasoning and conclusions expressed therein.
Accordingly, I too would dismiss the Appeal, with the same order for costs as contained in the lead Judgment.
?
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Joseph E. Ekanem, JCA, made available

to me, in draft form, a copy of the lead Judgment dismissing this appeal.
?The issues raised in this appeal have been comprehensively addressed. I agree with, and hereby adopt as mine, the resolution of the said issues raised herein. I also dismiss this appeal and abide by the orders made in the lead Judgment.

Appearances:

O. S. Sowemimo , SAN with him, Olusola Coker, Esq.For Appellant(s)

Olufemi Bisuga, Esq.For Respondent(s)

Appearances

O. S. Sowemimo , SAN with him, Olusola Coker, Esq.For Appellant

AND

Olufemi Bisuga, Esq.For Respondent