INFINITY TRUST SAVING & LOANS LTD & ANOR v. EL-LADAN & ANOR
(2022)LCN/16869(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, April 07, 2022
CA/A/1068/2018
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. INFINITY TRUST SAVING AND LOANS LTD 2. ADEKAN SERVICES NIGERIA LIMITED APPELANT(S)
And
1. IBRAHIM D. EL-LADAN, ESQ. 2. MR. EMEKA HAROLD CHIJIOKE RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY IS OBLIGATED TO CALL A PARTICULAR NUMBER OF WITNESES TO PROVE HIS CASE
In law, though a party is not obliged to call any number of witnesses in proof of his case, since all he is required to do is to call sufficient evidence capable of establishing the facts as alleged by him, yet where a witness whose evidence would be crucial to settle an issue of fact one way or the other, and thus vital witness, such a witness should be called and if he is not called, it would be fatal to the case or defense of the party that ought to have called him to testify.
It is the law that a litigant need not call any particular number of witness once he has called the number of witnesses which he requires to prove his case, except that failure to call a vital witness would be fatal. See Alli & Anor V Alesinloye & Ors (2000) LPELR – 427 AT p. 36, where the Supreme Court had stated inter alia thus:
“The requirement of law from a party to a suit is to call relevant evidence in proof of his case and not that he is bound to call a particular witness if he can prove his case otherwise.”
See also lyere V Bendel Feed and Flour Mill Ltd (2008) LPELR – 1578 (SC) AT p. 49, Okunade Kolawole V. The State (2015) LPELR- 24400 (SC) per Peter – Odili Jsc, Paul Eneche V. The People of Lagos State (2018) LPELR – 45826(CA) per Georgewill JCA. PER GEORGEWILL, J.C.A.
THE POSTION OF LAW WHERE A TRANSACTION IS REDUCED INTO WRITING
I have also considered the avalanche of submissions on the settled position of the law that once a transaction has been reduced into writing, only the document is the admissible form of evidence of its contents and therefore, oral evidence would not be permitted and or allowed to vary, contradict or add to its content. This is good law! Yet, in law a party is allowed to lead evidence on matters of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under the contract of sale or grant or disposition of the property. I therefore, did not find any breach of this settled position of the law by the evidence led by the PW1 and PW2 that solidly proved his claims against the Appellants and the 2nd Respondent on a balance of probability and or preponderance of evidence as required of him by law of evidence. See Section 128 (1) (c) of the Evidence Act 2011. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON THE ISSUE OF POSSESSION
Now, a word or two on possession. Interestingly, when it comes to the issue of possession of land in dispute. the law is well settled that he who proves title to land is equally entitled to possession of the land in dispute. So settled is this position of the law that a person with a valid and better title to land is by law deemed to be in possession even where he is not in de – facto physical possession of the land as against a person without any color of right to the land. See Carrena V. Akinlase (2008) 14 NWLR (Pt. 1107) AT p. 262. See also Mr. Frank Anyi & Ors V. Chief Harry Ayoade Akande & Ors (2017) LPELR – 41973(CA) per Geergewill JCA. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON TRESPASS
As I berth at the harbour to bring this judgment to its closing phase. I thought I should pause to observe that in law trespass is constituted by the slightest disturbance to the possession of land by a person who cannot show a better right to possession and thus even where the entry into possession is under a transaction which has been declared void or found to be void ab initio, the entry itself becomes void ab initio and its lawful character losses its lawfulness and acquires an illegal or unlawful character from the very moment the entry was made. So, it is with the 2nd Respondent, by the finding of the lower Court that the property in dispute was validly and rightly sold to the 1st Respondent by the 2nd Appellants, who was in my finding thus incapable of conferring any interest in the property in dispute on the 2nd Respondent, who became clearly a trespasser on the property in dispute. I so firmly hold. See Anyi & Ors V. Akande & Ors (2017) LPELR – 41973(CA) per Georgewill JCA. See also Ojomo V. Ibrahim (1999) 12 NWLR (Pt. 631) 415. See also Solomon V. Mogaji (1982) 11 SC 1 AT P. 37. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of the Federal Capital Territory Abuja, Coram: Salisu Garba J., in Suit No. FCT/HC/CV/2043/2011: Ibrahim D. El – Ladan Esq. V. Infinity Trust Saving & Loans Limited & Ors delivered on 30/5/2018, in which some of the claims of the 1st Respondent as Claimant were granted against the Appellants and the 2nd Respondent as Defendants.
The Notice of Appeal was filed on 29/8/2018 on eleven grounds of appeal. See pages 622 – 631 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 23/11/2018 but was deemed as properly compiled and transmitted to this Court on 23/11/2018. Subsequently, an Additional Record of Appeal was compiled and transmitted to this Court on 20/3/2020 but was deemed as properly compiled and transmitted on 7/5/2021. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 1/3/2022. The Appellants were represented by Michael Ugwuanyi. The 1st Respondent was represented by Danjuma G. Ayeye Esq., appearing with Okechukwu Edeze Esq. The 2nd Respondent was represented by Tony Mozie Esq.
By a Further Amended Writ of Summons and Further Amended Statement of Claim filed on 8/7/15 before the Lower Court, the 1st Respondent as Claimant claimed against the Appellants and the 2nd Respondent who was subsequently joined to the Suit, for the following reliefs, to wit:
1. A Declaration that the Plaintiff is the rightful owner and entitled to the possession and quiet enjoyment of the property represented by the Defendants and known to the Plaintiff as House No. 13 Vienna Crescent, Sun City, Galadimawa District, Abuja FCT now described by the 1st and 2nd Defendants as House No. 11 Vienna Crescent, Sun City Estate, Galadimawa District, Abuja, FCT.
2. A Declaration that the Defendants are stopped from denying that the Plaintiff is the legitimate owner and occupier of the property represented by the defendants and known to the Plaintiff as House No. 13 Vienna Crescent, Sun City, Galadimawa Vienna Crescent, Sun City, Galadimawa District, Abuja FCT.
3. An Order of perpetual injunction restraining the Defendants and her agents, assigns, servants from trespassing or further trespassing upon and in any way other manner interfering with the Plaintiff’s peaceable possession and enjoyment of the Plaintiff’s property known to the Plaintiff as House No. 13 Vienna Crescent, Sun City, Galadimawa District, Abuja FCT.
4. An Order for specific performance for a breach of contract to wit: that the Defendant deliver house and property known to the Plaintiff as House No. 13 Vienna Crescent, Sun City, Galadimawa District, Abuja FCT which has been described by Defendants as House No. 11 Vienna Crescent, Sun City, Galadimawa District, Abuja
5. The sum of N4,050,000.00 (Four Million and Fifty Thousand Naira) only being special damages in the form of accrued rents incurred as a result of the failure, negligence and refusal of the 1st and 2nd Defendants to take and enjoy peaceable possession of the said House No. 13 Vienna Crescent, Sun City, Galadimawa District, Abuja FCT now described as House No. 11, Vienna Crescent, Sun City Estate, Galadimawa District, Abuja.
6. The sum of N346, 500. 00 being the cost of Electrical Fixtures and Fittings.
7. The sum of N275, 600. 00 being the cost of Electrical Wiring and Fittings.
8. The sum of N138, 450. 00 being the cost of Electrical conduit wiring and pipes.
9. The sum of N300, 000. 00 being the cost of labour for the Mason and his workmen.
10. The sum of N90, 000. 00 being the cost of labour for the Electrician and his workmen.
In the alternative, the Plaintiff claims:
1. The sum of N4, 050, 000. 00 only being special damages in the form of accrued rents incurred as a result of failure, negligence and refusal of the 1st and 2nd Defendants to take and enjoy peaceable possession of the said House No. 13 Vienna Crescent, Sun City, Galadimawa District, Abuja FCT.
2. The sum of N4, 500, 000. 00 being special damages for the repairs, amendments erected on the property known and represented by the Defendant to the Plaintiff as House 13, Vienna Crescent, Sun City, Galadimawa District, Abuja FCT and described by the Defendant as House No. 11, Vienna Crescent, Sun City, Galadimawa District, Abuja FCT.
3. N346, 500. 00 being the cost of Electrical Fixtures and Fittings.
4. The sum of N275, 600. 00 being the cost of Electrical Wiring and Fittings.
5. The sum of N138,450.00 being the cost of Electrical Conduct Wiring and Pipes and N184,050.00.
6. The sum of N300, 000. 00 being the cost of labor for the Mason and his workmen.
7. The sum of N90,000.00 being the cost of labor for the Electrician and his workmen.
See pages 63 – 65 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the 1st Respondent as Claimant before the lower Court, as can be gleaned from the averments in his pleadings and the evidence, both oral and documentary, led as in the Record of Appeal, inter alia was that in April 2010, the 1st Respondent purchased from the 2nd Appellant through its agent the 1st Appellant, the property in dispute, which was identified to him by one Mr. Victor, the Marketing Officer of the 2nd Appellant at Sun City Estate, Galadimawa District Abuja as House 13 and he chose the property in dispute then at DCP/Foundation level stage and unnumbered. He chose it because of its elevated topography but surprisingly after taking possession and commencing work thereon, the Appellant purported to sell the same property to the 2nd Respondent as House 11 merely to deprive the 1st Respondent of his property, which attempt he stoutly resisted leading to the institution of the case before the Lower Court. See pages 49 – 80 of the Record of Appeal.
On the other hand, the gist of the case of the Appellants as 1st and 2nd Defendants before the lower Court, as can be gleaned from the averments in their pleadings and the evidence, both oral and documentary, led as in the Record of Appeal. inter alia was that the property sold to the 1st Respondent by the 1st Appellant, who had earlier bought same form the 2nd Appellant, was House 13, Vienna Crescent. Sun City Estate, Abuja, and not House 11, Vienna Crescent, Sun City Estate, Abuja, the subject matter of this case which had earlier been sold by the 2nd Appellant to the 2nd Respondent. However, the 1st Respondent, who did not follow the due step to take possession of his property House 13, had trespassed into House 11, belonging to the 2nd Respondent, to commence work thereon and had refused to vacate the property of the 2nd Respondent upon the request of the 2nd Appellant for him to do so. See pages 135 – 156 and 208 – 227 of the Record of Appeal for the Appellants’ pleadings and pages 265 – 290 of the Record of Appeal for the 2nd Respondent’s pleadings.
At the close of pleadings, the matter proceeded to trial before the lower Court. The matter went to trial. PW1, one Ibrahim Maigari Buhari and PW2, the 1st Respondent, Ibrahim D. E1 – Ladan Esq. DW1, was one Mrs Ngozi Chukwu and DW2 was one Taiwo Adelugba. DW3 was one Uhiara Chienezie and DW4 was one Mahmud Ibrahim Bello. The parties tendered several documents which were admitted in evidence as Exhibits. The parties filed and exchanged their final written addresses, which were adopted on 5/3/2018. On 30/5/2018, the lower Court delivered its judgment in which some of the claims of the 1st Respondent as Claimant were granted against the Appellants and the 2nd Respondent as Defendants, hence this appeal. See pages 307 – 314, 316 – 320, 322, 332 – 344, 346 – 352, 358 – 361, 368 – 372, 373 – 384, 384 – 392, 569 – 621 and 622 – 631 of the Main Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, eleven issues were distilled as arising for determination from the eleven grounds of appeal, namely:
1. Whether the lower Court was right in holding that House II Vienna Crescent, Sun City Estate, Abuja is now House No. 13, Vienna Crescent, Sun City Estate, Abuja?
2. Whether the lower Court was right in holding that the Appellants and the 2nd Respondent went ahead to complete the house, the subject of this Suit in disobedience of the Order of the lower Court restraining them from so doing pending the determination of the suit?
3. Whether the lower Court was right in holding that the Appellants described House 11, Vienna Crescent, Sun City Estate, Abuja to the 1st Respondent as House 13, Vienna Crescent, Sun City Estate, Abuja?
4. Whether the lower Court was right when it Ordered the Appellants as well as the 2nd Respondent to deliver House and property known to the Plaintiff as House 13, Vienna Crescent, Sun City Estate, Abuja which has been described by the Appellants and the 2nd Respondent as House 11, Vienna Crescent, Sun City Estate, Abuja to the 1st Respondent forthwith?
5. Whether the lower Court was right in holding that the failure of the 2nd Appellant to call one Mr. Victor who was its agent and who was present when the 1st Respondent identified the House in dispute to either prove or disprove this fact of wrong identification of the house in dispute was fatal to the case of the Appellants and the 2nd Respondent?
6. Whether the lower Court was right in holding that there was a misrepresentation by the Appellants in respect of the numbering of the houses located at Vienna Crescent, particularly that of the 1st Respondent based on oral evidence enlisted from DW4 during Cross-Examination by the counsel to the 1st Respondent?
7. Whether the lower Court was right when it held that the 1st Respondent has demonstrated that House 13 Vienna Crescent, Sun City Estate, Abuja is the same House the Appellants described as House 11, Vienna Crescent, Sun City, Estate, Abuja?
8. Whether the Lower Court was right to hold that Exhibits Z21, Z22 and Z23 were documents made during the pendency of this Suit at the lower Court and as such are inadmissible in evidence?
9. Whether the lower Court was right to hold that by the avalanche of evidence adduced by the 1st Respondent, the Appellants have breached the contract agreement between both parties by refusing to perform their own contractual obligation?
10. Whether the lower Court was right when it held that the issue of the 1st Respondent proving the juristic personality of the Appellants is of no moment on the premise that the 1st Appellant admitted in paragraphs 3 and 4 of its Amended Statement of Defence dated 20/11/2014 that the Appellants are independent and separate limited liability companies?
11. Whether the lower Court was right in failing to consider the further Amended Statement of Defence of the 1st Appellant dated 24/8/2015 filed by the 1st Appellant in defence of the suit of the 1st Respondent against it?
In the 1st Respondent’s brief, the eleven issues as distilled in the Appellants’ brief as arising for determination were adopted.
I have taken time to consider the averments in the pleadings of the parties together with the evidence, both oral and documentary as led by them as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court and I am of the firm view that the apt issues arising for determination in this appeal are the eleven issues, though whooping, as distilled in the Appellants’ brief, which eleven issues were also adopted in the 1st respondent’s brief. The 2nd Respondent did not file any brief. However, I shall commence my consideration with issue 11 dealing with fair hearing because of its devastating consequences in law if made out against a proceeding and or judgment a Court. which would be rendered a nullity thereby. I shall then proceed to consider issues 1, 3, 4, 6, 7, 8 and 9 together and resolve them in one fell swoop. Thereafter, I shall consider issues 2, 5, and 10 together and also resolve them in one swoop.
ISSUE ELEVEN
Whether the lower Court was right in failing to consider the further Amended Statement of Defence of the 1st Appellant dated 24/8/2015 filed by the 1st Appellant in defence of the suit of the 1st Respondent against it?
APPELLANTS’ COUNSEL SUBMISSIONS
In his submissions on issue eleven, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court having rightly acknowledged that the 1st Appellant filed a Further Amended Statement of Defense, however erred gravely in law when in the course of its judgment, it chose to consider the 1st Appellant’s Amended Statement of Defense and thereby abandoning and/or disregarding the extant pleadings of the Appellant and contended that the failure and/or refusal of the lower Court to take cognizance of and/or consider the extant pleadings of the 1st Appellant in defense of the action of the 1st Respondent is a total and brazen violation and denial of the 1st Appellant’s constitutional right to fair hearing and urged the Court to so hold and to allow the appeal and set aside the null judgment of the lower Court reached in breach of the 1st Appellant’s right to fair hearing. Counsel referred to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Uzuda & Ors V. Ebigah & Ors (2009) LPELR-3458(SC) AT pp. 23 – 24, Undukauba V. Kolomo & Anor (2005) LPELR – 1976 (SC) AT pp. 13 -14.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issue eleven, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the lower Court considered all the documents admitted in evidence before it, including the 1st Appellant’s Further Amended Statement of Defense and contended that the mere reference to the 1st Appellant’s Amended Statement of Defense was at best a slip and nothing more since the referenced paragraph 3 has the same content in both pleadings of the 1st Appellant and urged the Court to hold that the lower Court was right when it held the Appellants admitted the separate legal personalities of the Appellants since in law facts admitted need no further proof and to dismiss the appeal and affirm the correct judgment of the Lower Court. Counsel relied on Alechenu V. University of Jos (2015) 1 NWLR (Pt. 1440) 333 AT p. 367.
RESOLUTION OF ISSUE ELEVEN
My Lords, issue eleven deals with whether or not the reference to paragraph 3 of the 1st Appellant’s Amended Statement of Defense filed on 20/11/2014 rather than paragraph 3 of the 1st Appellant’s Further Amended Statement of Defense filed on 24/8/2015 in the judgment of the lower Court amounted to a breach of the 1st Appellant’s right to fair hearing and therefore, rendered the judgment a nullity and liable to be set aside by this Court? In the judgment of the lower Court, it stated inter alia thus: “That the issue of Plaintiff proving the juristic personality of the 1st and 2nd Defendants is of no moment, on the premise that the 1st Defendant admitted in paragraphs 3 and 4 of its Amended Statement of Defense dated 20/11/2014 that the 1st and 2nd Defendants are independent and separate limited liability company.” See page 610 of the Record of Appeal
In paragraph 3 of the 1st Appellant’s Further Amended Statement of Defense, it was averred thus:
“3. The 1st Defendant … aver that the 1st and 2nd Defendants are independent and separate entities engaged in different businesses as stated in their separate memorandum of association.”
I have taken time to comb and scan through the entire length and breadth of the Main and Additional Records of Appeal but regrettably, the very 1st Appellant’s Amended Statement of Defence relied upon for the contentions under issue eleven was not even made a part of the Records of Appeal. There is therefore, no way for this Court to even compare and see if paragraph 3 of the 1st Appellant’s Amended Statement of Defense filed on 20/11/2014 and paragraph 3 of the 1st Appellant’s Further Amended Statement of Defense filed on 24/8/2015 are either different or the same, in order to properly focus the contentions of the learned counsel for the Appellants under issue eleven.
However, I have considered the entirety of the extant pleadings of the Appellants and the 1st Respondent and it is clear that the averments in paragraph 3 referred to and set out in the judgment of the Lower Court as paragraph 3 of the 1st Appellant’s Amended Statement of Defense filed on 20/11/2014 is the same with the averments in paragraph 3 of the 1st Appellant’s Further Amended Statement of Defense filed on 24/8/2015. The Appellants did not even in the least demonstrate through facts any breach of their right to fair hearing at all. In law, fair hearing is a matter of facts and must be established on the facts and circumstances of the case. It is one thing, a very easy thing, to allege a breach of fair hearing, but quite a different thing, a matter of evidence in proof of facts, to substantiate an allegation of breach of fair hearing.
In the circumstances therefore, I find that not only was there no mischief or miscarriage of justice in the said reference to paragraph 3 of the 1st Appellant’s Amended Statement of Defense filed on 20/11/2014 but at worst that amounted to a very minor slip and nothing more. Thus, issue eleven is nothing short of making a mountain out of a molehill – making too much of a minor issue or to cause something unimportant to seem important! Thus, once parties were given equal opportunity to present their case and be heard, a minor slip such as the one forming the basis of a whole issue for determination, issue eleven, would be held to be incapable of voiding an otherwise valid judgment of the Lower Court. See Alechenu V. University of Jos (2015) 1 NWLR (Pt. 1440) 333 AT p. 367. In the light of all the above, issue eleven is hereby resolved against the Appellants in favor of the 1st Respondent.
ISSUES ONE, THREE, FOUR, SIX, SEVEN, EIGHT AND NINE
APPELLANTS’ COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was in grave error when it held that House No. 11, Vienna Crescent, Sun City Estate, Abuja is now House No 13, Vienna Crescent, Sun City Estate, Abuja and contended that the lower Court visited the locus in quo where it saw for itself that the houses were serially numbered, with houses with odd numbers on the left and those with even numbers on the right with no shred of evidence of renumbering and which cannot be varied by the oral evidence of the PW1 and PW2 and urged the Court to hold that the finding by the lower Court that the 1st Respondent is the rightful owner and entitled to the possession and quiet enjoyment of the House 11 claimed in place of his House 13 was perverse and not supported by the evidence, both oral and copious documentary, led and to allow the appeal and set aside the perverse judgment and dismiss the 1st Respondent’s suit for lacking in merit. Counsel referred to Section 128(1) and 129 (6) of the Evidence Act 2011, and relied on Union Bank of Nigeria Limited V. Ozigi (1994) LPELR – 3389 (SC).
In his submissions on issue three. which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong when it held that the Appellants described House 11, Vienna Crescent, Sun City Estate, Abuja to the 1st Respondent as House 13, Vienna Crescent, Sun City Estate, Abuja in that from the documentary Exhibits it was proved that what was sold to the 1st Respondent by the 2nd Appellant was House 13 vide Exhibit Z17 and not House 11 which was sold, even earlier, by the 2nd Appellant to the 2nd Respondent vide Exhibit 79 and contended that House 13 was first bought by the 1st Appellant before it was resold to the 1st Respondent and therefore, assuming but without conceding that the Appellants mistakenly represented House 11 as House 13 to the 1st Respondent it was no longer available to the 2nd Appellant to sell to the 1st Respondent having earlier sold House 11 to the 2nd Respondent and urged the Court to sold and allow the appeal and set aside the perverse judgment of the Lower Court and dismiss the 1st Respondent’s Suit. Counsel relied on Anyaduba V. Nigerian Renowned Trading Co. Ltd (1992) 5 NWLR (Pt. 243) 535 and Owoade V. Asubiojo & Anor (2013) LPELR – 21447 (CA) AT p. 28.
In his submissions on issue four, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong when it made the vain order directing the Appellants as well as the 2nd Respondent to deliver House 11 in place of House 13 to the 1st Respondent who was never in possession of House 11 in that the only house sold to the 1st Respondent was House 13 vide Exhibit Z17 and contended that the lower Court was in grave error to rely on the oral evidence of the 1st Respondent to vary the contents of Exhibit Z 17 to arrive at the perverse finding that what was sold to the 1st Respondent was House 11 described to his as House 13 and urged the Court to hold that in law such oral evidence was inadmissible and to allow the appeal and set aside the judgment of the Lower Court reached on inadmissible evidence and to dismiss the 1st Respondent’s Suit. Counsel referred to Section 128(1) of the Evidence Act 2011 and relied on Adeogun & Ors V. Fashogbon & Ors (2008) LPELR – 131(SC) AT p. 52.
In his submissions on issue six, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong in holding that there was a misrepresentation by the Appellants in respect of the numbering of the houses located at Vienna Crescent and basing its perverse findings on the evidence elicited from DW4 under cross-examination and contended that in law parties are bound their pleadings and the evidence of misrepresentation having not been pleaded its elicitation from DW4 under cross-examination would go to no issue and urged the Court to so hold to expunge the evidence on facts not pleaded and allow the appeal, set aside the perverse judgment of the lower Court and dismiss the 1st Respondent’s suit. Counsel relied on Kubor & Anor V. Dickson & Ors (2012) LPELR – 9817 (SC) AT p. 59, West African Construction Company Limited V. Batalha (2006) LPELR – 3478 (SC) AT p. 21, Akinbade & Anor V. Babatunde & Ors (2017) LPELR – 43463 (SC) AT pp. 19 – 20.
In his submissions on issue seven, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong when it held that the 1st Respondent proved that House 13 is the same as House 11 as described by the Appellants in that all that the evidence of the 1st Respondent showed in evidence was that he bought House 13 from the Appellants as was identified to him by staff of the 2nd Appellant and which House 13 he subsequently took possession of as shown by several of the Exhibits admitted in evidence and contended that in the circumstances the afterthought oral allegation of the 1st Respondent that House 11 was described to him as House 13 was not admissible in law to vary or contradict the clear contents of Exhibit Z17 which is the binding contract between the Appellants and the 1st Respondent in respect of House 13 only and not House 11 and urged the Court to hold that the reliance on the oral evidence of the 1st Respondent by the lower Court in arriving at the perverse finding had occasioned a grave miscarriage of justice to the Appellants and to allow the appeal, set aside the perverse judgment and dismiss the 1st Respondent’s suit. Counsel relied on Ogwuegede V. Asadu & Ors (2018) LPELR – 43717 (SC) AT pp. 20 – 21, Atiba Iyalamu Savings & Loans Limited V. Suberu & Anor (2018) LPELR – 44069 (SC) AT p. 32.
In his submissions on issue eight, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong when it held that Exhibits Z21, Z22 and Z23 were documents made during the pendency of the 1st Respondent’s suit and where therefore, inadmissible in evidence in that it was common ground between the parties that Exhibit Z21 was the Site Plan of the Sun City Estate, from where the House 13 was identified to the 1st Respondent and contended that such a document therefore, pre-existed the 1st Respondent’s suit contrary to the perverse finding of the Lower Court and coupled with the fact that all these documents were admitted in evidence as Exhibits without any objection and urged the Court to hold that the lower Court was wrong to have raised the issues of their admissibility suo motu and thereby denied the Appellants their right to fair hearing when even the 1st Respondent did not object to their admissibility and can no longer complain about them even on appeal and to allow the appeal and set aside the decision of the lower Court that Exhibits Z21, Z22 and Z23 were inadmissible in evidence. Counsel referred to Section 36 (1) and (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)and relied on Ibori V. Agbi & Ors (2004) 6 NWLR (Pt. 868) 78 AT p. 136, Nigerian Tobacco Co. Ltd V. Agunanne (1995) LPELR – 2034 (SC) AT p. 40, Provisional Liquidator of Tapp Ind. Ltd & Anor V. Tapp Industries Ltd & Ors (1995) LPELR – 2928 (SC) AT p. 53 and Danladi V. Dangiri & Ors (2014) LPELR -24020 (SC) P. 83.
In his submissions on issue nine, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong when it held that the 1st Respondent proved by credible evidence that the Appellants breached the contract agreement between both parties by refusing to perform their own contractual obligation in that the only contract between the parties was the sale of House 13 by the 2nd Appellant to the 1st Respondent and which was done vide Exhibit Z17 coupled with possession handed over to the 1st Respondent and contended that by that act the Appellants completed the due performance of their own part of the contract and leaving nothing left to perform by both parties in respect of the contract in Exhibit Z17 and urged the Court to hold that the contrary finding of the lower Court was perverse and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the 1st Respondent’s suit for lacking in merit. Counsel referred to Section 128(1) of the Evidence Act 2011 and relied on Union Bank of Nigeria Limited V. Ozigi (1994) LPELR – 3389 (SC).
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issues one, three, four and seven, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the 1st Respondent adduced sufficient credible and unchallenged evidence and proved that it was House 13, the subject matter of this case, that was identified to the 1st Respondent by one Victor, the marketing officer of the 2nd Appellant now christened as House 11 by the Appellants and which the 1st Respondent bought and was put into possession by the 2nd Appellant and contended that the 1st Respondent also showed the said House 13 to the lower Court at its visit to the locus in quo and urged the Court to hold that the Appellants merely attempted to deny the 1st Respondent of his property House 13 by rechristening it House 11 in order to sell the same property to the 2nd Respondent and that the failure to call Mr. Victor was fatal and to dismiss the appeal and affirm the correct judgment of the Lower Court. Counsel relied on Oforlete V. The State (2000) 12 NWLR (Pt. 681) 415, Kotun & Ors V. Olasewere & Ors (2010) 1 NWLR (Pt. 1175) 411 AT p. 437, Oziegbu Engineering Company Limited V. Iwuamadi (2009) 16 NWLR (Pt. 1166) 44 AT p. 63, Diamond Bank V. Okpala (2016) LPELR – 41573 (CA), lyere V. Bendel Feed and Flour Mill Ltd (2009) All FWLR (Pt. 453) 1217 AT p. 1222, Ogunyade V. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218, Agbabiaka V. Saibu (1998) 7 SCNJ 305 AT p. 318, Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471 AT p. 492, Hamza V. Kure (2010) All FWLR (Pt. 539) 1070 AT p. 1090 and Oforlete V. The State (2000) 12 NWLR (Pt. 681) 415.
In his submissions on issue six, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the lower Court was right when it held that there was misrepresentation by the Appellants in respect of the House numbering and contended that contrary to the contention of the Appellants. the 1st Respondent did in fact plead misrepresentation in paragraph 30 of his Further Amended Statement of Claim together with the particulars thereof and urged the Court to hold that the 1st Respondent proved by credible evidence that the 1st Appellant as an agent of the 2nd Appellant did made misrepresentation to the 1st Respondent regarding the actual property, House 13, which they renumbered House 11, allotted and handed over to the 1st Respondent and to dismiss the appeal for lacking in merit and affirm the correct judgment of the lower Court.
In his submissions on issue eight, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the lower Court was right in law when it held that Exhibits Z21, Z22 and Z23 were inadmissible being documents made during the pendency of the 1st Respondent’s Suit and contended that Exhibits Z21, a purported general survey plan and Exhibit Z22 a purported survey plan showing the property sold to the 1st Respondent and Exhibit Z23 a purported survey plan showing the property sold to the 2nd Respondent, were all inadmissible and of no probative value having been tendered through DW 3 who admitted under cross-examination that he was not the maker of these documents and urged the Court to hold that these unsinged documents amounted to documentary hearsay and ought to be rejected and or expunged from the evidence as was rightly done by the lower Court and to dismiss the appeal and affirm the correct judgment of the lower Court. Counsel relied on Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) 241 AT p. 435, UBN V. Ishola (2001) 15 NWLR (Pt. 735) 47, Ekpo V. State (2001) 7 NWLR (Pt. 712) 292, Omega Bank Nig. Plc V. O.B.C. Ltd (2005) All FWLR (Pt.249) 1964 AT p. 1993, Agbaso V. lwunze (2015) 11 NWLR (Pt. 1471) 527 AT p. 569, Enukeme V. Mazi (2014) LPELR – 23540, GTB Plc V. Fadco Ind. (Nig) Ltd (2013) LPELR-21411, F.H.A V. Kalejaiye (2011) ALL FWLR (PT.562) 1633 and Chevron (Nig) Ltd V. Osigwe (2014) LPELR – 23534.
In his submissions on issue nine, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the lower Court was right in law when it held that on the credible evidence led, the 1st Respondent proved that the Appellants breached the contract agreement between the parties by refusing to perform their own contractual obligation and contended that by the process leading to the formation of the contract the 1st Respondent was given the discretion to chose a house of his choice and which choice he made in identifying with the help of Mr. Victor and choosing House 13, Vienna Crescent, Sun City Estate, Galadimawa District, Abuja from the survey plan of the Estate based on the topography of its location because of its slightly elevated position and urged the Court to hold that the attempt to deny the 1st Respondent of the property he bought under the disguise of renumbering it as House 11 by the Appellants amounted to further breach of the contract between the parties and to dismiss the appeal and affirm the correct judgment of the Lower Court.
RESOLUTION OF ISSUES ONE, THREE, FOUR, SIX, SEVEN, EIGHT AND NINE
My Lords, issues one, three, four, six, seven, eight and nine are an admixture of several related issues principally questioning the admissibility of some of the documents admitted in evidence, the evaluation of evidence, findings of facts and conclusions reached by the lower Court in the judgment appealed against.
Now, from the averments of the parties in their pleadings and the issues joined therein, notwithstanding the avalanche of submissions and issues running into eleven whooping issues for determination, the main controversy between the Appellants and the 1st Respondent was the identification of the property, the subject matter of the dispute between them. The 1st Respondent maintained that the property sold to him by the Appellants which was chosen by him and identified to him by one Mr. Victor, the Marketing Officer of the 2nd Appellant on 10/4/2010, was House 13 Vienna Crescent, Sun City Estate Galadimawa District, Abuja but which property is now being described as House 11, Vienna Crescent, Sun City Estate Galadimawa District, Abuja. On the part of the Appellants, they maintained that the property sold and handed over to the 1st Respondent was House 13, Vienna Crescent, Sun City Estate Galadimawa District, Abuja, while House 11, Vienna Crescent, Sun City Estate Galadimawa District, Abuja was sold and handed over to 2nd Respondent, who had completely developed it and let it out to tenants.
The 1st Respondent called two witnesses. The PW1 was one Ibrahim Maigari Buhari. He testified inter alia that he accompanied the 1st Respondent to the office of the 2nd Appellant on 10/4/2010 where property in dispute, though unnumbered then, was identified to the 1st Respondent on a map and picked by the 1st Respondent as House 13, based on the topography of the site because of its slightly elevated position. He was thoroughly cross-examined.
The 1st Respondent testified as PW2. He stated inter alia that in April, 2010, the Appellants through one Madam Ngozi Chukwu offered some units of houses for sale and on 10/4/2010, he visited the site of the 2nd Appellant in company of the PW1 and Madam Chukwu where with the aid of one Victor, the Marketing Officer of the 2nd Appellant he chose the property in dispute identified to him as House 13 and based on the topography of the site because of its slightly elevated position. Subsequently, he paid for and was allocated the property and on his application granted possession and approval to complete the property. Surprisingly, the Appellant later claimed to have sold the property already sold to him and describing it as House 11 to the 2nd Respondent. The 1st Respondent resisted the attempts by the Appellants to scheme him out of his property to sell it to the 2nd Respondent after he had paid all the purchase price, taken possession and carried out some work on the property. He tendered several documents which were admitted in evidence as Exhibits. He was thoroughly cross-examined.
In its defense, the 1st Appellant called one Mrs. Ngozi Chukwu who testified as DW1. She stated inter alia that the 1st Respondent chose from the houses of the 2nd Appellant which were all numbered site plan of the Estate House 13, Vienna Crescent, Sun City Estate and subsequently paid for the said property, which was at the DCP level. However, the 1st Respondent rather moved his workers to House 11 with a view to completing it, purporting it to be House 13 and on account of this error a joint visit was made to the site after which visit the 1st Respondent was informed that he entered into the 2nd Respondent’s and was directed to stop work at House 11, which had earlier been sold to the 2nd Respondent even before the 1st Respondent bought House 13 on 12/8/2010 and not in April 2010. She tendered several documents which were admitted in evidence as Exhibits. She was thoroughly cross-examined.
In its defense, the 2nd Appellant called one Taiwo Adelugba, who testified as DW2. He stated inter alia on 9/4/2010 the 2nd Appellant offered and in June 2010 sold to the 2nd Respondent the property in dispute, Houses 11 and another House 9, Vienna Crescent Sun City Estate, while the 1st Appellant purchased House 13 which it later sold to the 1st Respondent. The 2nd Respondent took possession and developed House 11 without any interference and on completion let it out to tenants. However, the 1st Respondent who did not follow the proper steps leading to taking possession of his property House 13, entered and trespassed into House 11 belonging to the 2nd Respondent, and despite repeated demand refused to vacate the house and instead, he unlawfully commenced work on same and abandoned his property House 13 Vienna Crescent, Sun City Estate. He tendered several documents which were admitted in evidence as Exhibits. He was thoroughly cross-examined.
The 2nd Appellant also called one Uhiara Chiemezie, who testified as DW3. He stated inter alia that he participated in the drawing up of the layout of Sun City Estate, Abuja, including the street numbering of the plots with odd numbers on the left and even numbers on the right and numbers were also given to the plots for the purpose of obtaining Right of Occupancy on the purchase from the Federal Capital Development Authority. He tendered the Survey Plan of the Estate and the Survey Plan made by Arimap Consultants in respect of Plot No. 1105 and 1106 as Exhibits Z21, Z22 and Z23. He was briefly cross-examined.
In his defense, the 2nd Respondent called one Mahmud Ibrahim Bello, who testified as DW4. He stated inter alia that he got to know the 1st Respondent in August 2011 when he trespassed into and destroyed the 2nd Respondent’s property, House 11, Vienna Crescent, Sun City Estate, Abuja, FCT, which the 2nd Respondent informed him that he bought in June 2010 and would engage him to complete the finishing works whenever he takes over possession. Subsequently, due to the trespass of the 1st Respondent, the 2nd Respondent had to spend huge amount of money to repair the House 11 and later completed the work for the 2nd Respondent, who let it out to tenants. He tendered several documents which were admitted in evidence as Exhibits. He was thoroughly cross-examined.
On 10/11/2017, the lower Court visited the locus in quo to observe things for itself. It was on the strength of the pleadings and evidence, both oral and documentary, that the lower Court delivered its judgment on 30/5/2018, in which some of the claims of the 1st Respondent were granted against the Appellants and the 2nd Respondent. See pages 570 – 592 of the Record of Appeal.
My Lords, the 1st Respondent being the Claimant carried the initial burden of leading credible evidence sufficiently in prove of his claim or at least on prima facie basis to warrant the burden of proof to shift unto the Appellants and the 2nd Respondent to enter upon their defense to the claims of the 1st Respondent. In other words, unless and until the 1st Respondent leads credible evidence sufficient enough to reach the threshold of at least prima facie proof of his claim that the property in dispute is House 13 sold to him by the Appellants but subsequently referred to as House 11 by the Appellants, there was indeed no duty on the Appellants and the 2nd Respondent to prove anything in their defense. See Jolayemi V. Alaoye (2004) 12 NWLR (Pt. 887) 322, per Uwaifo JSC.
Let me commence my consideration of these issues with the issue of admissibility or otherwise of Exhibits Z21, Z22 and Z23 as to whether the lower Court was right or wrong when it discountenanced these exhibits in the judgment writing stage, I have taken time to look carefully at and scrutinize these Exhibits, and it does appear to me that they suffer multifaceted issues of inadmissibility. They are made by the Survey Plan of the Estate and the Survey Sketch made by one Arimap Consultants and thus neither signed by the DW 3 nor any of the DW1, DW2 and DW4. none of whom were staff of the makers. They also appear on their face to have been made during the pendency of the 1st Respondent’s suit. In law, an unsigned document is a documentary hearsay, particularly one tendered by a person who is not the maker of such a technical document, such as a survey plan.
A Court of law is under a duty to act on admissible evidence only in reaching its findings and conclusions in any matter before it. Thus, it has a duty to even expunge and or discountenance evidence which though earlier admitted but which at the judgment writing stage turns out, either in the final address of Counsel or on the study of the Court, to be inadmissible, so that the matter is decided on admissible evidence only. See pages 388 – 389 of the Record of Appeal.
In Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) 241 AT p. 435, the Supreme Court had stated inter alia thus:
“Hearsay evidence is inadmissible and it need not to be controverted before it is expunged from the record of the Court.”
See also UBN V. Ishola (2001) 15 NWLR (Pt. 735) 47, Ekpo V. State (2001) 7 NWLR (Pt. 712) 292, Omega Bank Nig. Plc V. O.B.C. Ltd (2005) All FWLR (Pt.249) 1964 AT 1993.
Furthermore, on the inadmissibility of Exhibits Z21, Z22 and Z23 alleged by the Appellants to have been raised suo motu by the lower Court, I have looked at the final written address of the 1st Respondent as Claimant before the lower Court and I can see that it was duly raised before the Court and to which the 2nd Appellant as 2nd Defendant responded in its reply in law but the 1st Appellant as 1st Defendant failed or refused to respond to it. In law, the 1st Appellant can only have itself to blame for the failure to join issue with the 1st Respondent on the admissibility or otherwise of these exhibits. Thus, having failed to utilize the opportunity given it to respond to the issue by way of a reply on point of law, the 1st Appellant cannot in law be heard to complain and alleged a breach of its right to fair hearing. Such an allegation, as baseless as it, cannot fly! See pages 534 and 563 – 564 of the Record of Appeal for the final written address of the counsel for the 1st Respondent and the Reply on point of law by counsel for the 2nd Appellant on the issue of inadmissibility of Exhibits Z21, which was unsigned. See also pages 262, 263 and 264 of the Record of Appeal for Exhibits Z22 and Z23. See further Agbaso V. lwunze (2015) 11 NWLR (Pt. 1471) 527 AT p. 569; Enukeme V. Mazi (2014) LPELR – 23540; GTB Plc V. Fadco Ind. (Nig) Ltd (2013) LPELR-21411; F.H.A V. Kalejaiye (2011) ALL FWLR (PT.562) 1633; Chevron (Nig) Ltd V. Osigwe (2014) LPELR – 23534; Oforlete V. The State (2000) 12 NWLR (Pt. 681) 415.
My Lords, I have reviewed the pleadings and evaluated the evidence of the parties to see if the finding of facts and conclusions reached thereon by the lower Court were supported by the evidence led and flow therefrom. There were ample evidence from the 1st Respondent, through PW1 and PW2 that in April when they visited the site of the 2nd Appellant with the help of one Victor, the Marketing Officer of the 2nd Appellant, the 1st Respondent personally chose the property in dispute which was then identified and marked on the plan as House 13 but that subsequently after going into possession to complete work on it the Appellants, in an attempt to deny him of his property, purportedly sold the same property to the 2nd Respondent as House 11. I have looked at the various documents tendered in evidence, including the letter of allocation. I have also considered the cross-examination evidence of the PW1 and PW2 and I find that they were not shaken at all but remained consistent in their evidence having given first – hand experience of what transpired on 10/4/2010 at the site of the 2nd Appellant. I find that there was sufficient and credible evidence at least on prima facie basis showing that it was the same house bought by the 1st Respondent as House 13 that was now rechristened House 11 that was identified by the 1st Respondent on 10/4/2010 going by the direct eye witness account of the PW 1 and PW 2. See Section 133 of the Evidence Act 2011. See also Araoye….
Now, the 1st Respondent having made out at least on prima facie basis that House 13 sold to him is the same as House 11 now in dispute, did the Appellants and the 1st Respondent discharge the evidential burden shifted unto them to show that House 13 which the 1st Respondent claimed to have personally chosen because of its slightly elevated topography is not the same property as House 11 now in dispute? I have reviewed the pleadings of the Appellants as well as the 2nd Respondent in the light of the evidence, both oral and documentary led through DW1, DW2, DW3 and DW4 and I find that none of these witnesses for the Appellants and the 2nd Respondent gave any direct account of the events of 10/4/2010 as would have been given by one Mr. Victor, the Marketing Officer of the 2nd Appellant, who was the person that personally identified the units of house for the 1st Respondent to choose the one he preferred. The DW1 was present, having led the PW1 and PW2 to meet with Mr. Victor but she did not play any role in the identification of the property chosen by the 1st Respondent on the map of the units of Houses at the site of the 2nd Appellant. Her evidence was therefore, unhelpful on this issue of facts.
In the absence of the evidence of Mr. Victor, who I find to be a very vital witness for the Appellants, the evidence of PW1 and PW2 remained unchallenged and unmatched by the evidence of DW1, DW2, DW3 and DW4 put together. As for DW2, he was not present when the initial identification was done to the 1st Respondent by Mr. Victor, who solely checked the survey plan of the estate and identified the house chosen by the 1st Respondent as House 13 which was then at DCP stage with no house number written either on the Plot or any place on the property but now rechristened House 11 by the Appellants. I therefore hold that the Appellants and the 2nd Respondent failed woefully to lead any direct credible evidence to discharge the burden shifted unto them to show that the House identified to the 1st Respondent as House 13 and which the 1st Respondent chose because of its slightly elevated topography, and as confirmed by the lower Court on its visit to the locus in quo, is not the same property now described by the Appellant as House 11 in the same Vienna crescent, Suncity Estate, Abuja.
Now, at the visit of the Lower Court to the locus in quo on 27/10/2017, the following was what transpired inter alia, namely: “The Court observed that one side of the road the houses are having even numbers while on the other hand, they bear odd numbers. The Court further observed that there is no number on the house alleged to be House No. 13. House No. 11 is in the high topography while House No. 13 is on the lower topography.” See pages 412 – 413 of the Record of Appeal.
The above observation of the lower Court is consistent with the credible unchallenged and unmatched evidence of the PW1 and PW2 that at the time Mr. Victor identified the property and the 1st Respondent choose the property in dispute for its slightly elevated topography, it was not numbered on the plan but was presented and marked on the plan as House 13 to the 1st Respondent. There was no other evidence, from the Appellants and the 2nd Respondent, of any physical identification of the property in dispute as House 11. The 1st Respondent clearly and abundantly made out a prima facie case of his allegation that it is the property in dispute, whether called House 13 by him or called House 11 by the Appellants and the 2nd Respondent, which is located at the elevated topography that was sold to him by the 2nd Appellant. See Section 136(1) of the Evidence Act 2011.
I have looked at Exhibit Z 17, the letter of allocation issued to the 1st Respondent by the 2nd Appellant and it does not have any actual description of the property stated to be House 13, and besides neither Exhibit 122 and 123 nor any sketched or survey plan was attached to the 1st Respondent’s letter of allocation. Thus, it is very clear that it is only Mr. Victor who is in the proper position to challenge or rebut or disprove the evidence of the PW2, the 1st Respondent, amply supported by the evidence of PW1, but regrettably he was not called as witness by any of the Appellants.
In law, though a party is not obliged to call any number of witnesses in proof of his case, since all he is required to do is to call sufficient evidence capable of establishing the facts as alleged by him, yet where a witness whose evidence would be crucial to settle an issue of fact one way or the other, and thus vital witness, such a witness should be called and if he is not called, it would be fatal to the case or defense of the party that ought to have called him to testify.
It is the law that a litigant need not call any particular number of witness once he has called the number of witnesses which he requires to prove his case, except that failure to call a vital witness would be fatal. See Alli & Anor V Alesinloye & Ors (2000) LPELR – 427 AT p. 36, where the Supreme Court had stated inter alia thus:
“The requirement of law from a party to a suit is to call relevant evidence in proof of his case and not that he is bound to call a particular witness if he can prove his case otherwise.”
See also lyere V Bendel Feed and Flour Mill Ltd (2008) LPELR – 1578 (SC) AT p. 49, Okunade Kolawole V. The State (2015) LPELR- 24400 (SC) per Peter – Odili Jsc, Paul Eneche V. The People of Lagos State (2018) LPELR – 45826(CA) per Georgewill JCA.
I am therefore minded to hold for the good reasons as explained above, and I hereby so hold that on the strength of the evidence, both oral and documentary, led by the parties through their witnesses, it was the 1st Respondent, as found quite rightly by the Lower Court, that adduced sufficient credible, unchallenged and unmatched evidence and proved that it was House 13, the subject matter of this case, that was identified to the 1st Respondent by one Victor, the Marketing Officer of the 2nd Appellant and now christened as House 11 by the Appellants and the 2nd Respondent which the 1st Respondent bought and was put into possession by the 2nd Appellant.
The above finding of the lower Court was ably fortified by its observation on the visit to the locus in quo where the claim of the 1st Respondent that the property in dispute which he bought as House 13, but now described as House 11, was indeed located on a slightly elevated topography, a fact of which the totality of the evidence of DW1, DW2, DW3 and DW4 could neither rebut nor offered any other rational explanation. In the circumstances therefore, I agree with the apt submission of the learned counsel for the 1st Respondent that the Appellants merely attempted to deny the 1st Respondent of his property House 13 by rechristening it House 11 in order to sell the same property to the 2nd Respondent, with a couple of unsinged inadmissible and documentary hearsay documents, which the lower Court rightly jettisoned. After all, in law an unsigned document has no probative value, same being worthless. See Omega Bank Nig. Plc V. O.B.C. Ltd (2005) All FWLR (Pt.249) 1964 AT p. 1993.
My Lords, having taken a very close scrutiny at all the documents tendered and admitted in evidence as exhibits, and which are admissible in evidence, it does appear to me that Exhibits B, C, D, F, H, I, J, K, L, M, N, Xl, X2 and X3 clearly buttressed and supported the very straight forward case of the 1st Respondent, which the lower Court clearly understood and believed far and above the contrived evidence of the Appellants, who were merely bent on, and attempting to, obfuscate the case before the lower Court. In law, evidence that is unchallenged and or uncontradicted or controverted by the adverse party is good evidence for the Court to rely and act upon to make relevant findings. See Oziegbu Engineering Company Limited V. Iwuamadi (2009) 16 NWLR (Pt. 1166) 44, AT p. 63, D-F, where this Court per Garba JCA, (as he then was but now JSC) had stated inter alia thus:
“Another settled principle of law is that the Court is entitled to accept (and in some situations bound to) credible evidence that was not challenged or controverted on any issue calling for the decision of the Court.”
See also Nwabuoku V. Ottih (1961) 1 All NLR 487 AT p. 490, Isaac Omoregbe V. Daniel Lawani (1980) 3 – 4 SC 108 AT Pp. 117.
I have also considered the avalanche of submissions on the settled position of the law that once a transaction has been reduced into writing, only the document is the admissible form of evidence of its contents and therefore, oral evidence would not be permitted and or allowed to vary, contradict or add to its content. This is good law! Yet, in law a party is allowed to lead evidence on matters of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under the contract of sale or grant or disposition of the property. I therefore, did not find any breach of this settled position of the law by the evidence led by the PW1 and PW2 that solidly proved his claims against the Appellants and the 2nd Respondent on a balance of probability and or preponderance of evidence as required of him by law of evidence. See Section 128 (1) (c) of the Evidence Act 2011.
It is very clear from the evidence of PW1, PW2 and DW1 that majority of the transaction between the parties, including the visit, identification and marking of House 13 were was made orally up to the payment for the property House 13, now being renumbered House 11 by the Appellants. There was no way the identification by Mr. Victor and the choice of the property in dispute by the 1st Respondent done before the actual negotiation for payment and eventual payment for the said property in dispute, whether called House 13 by the 1st Respondent or House 11 by the Appellants and the 2nd Respondent, could have been documented when they took place at the site of the 2nd Appellant on 10/4/2010. Thus, evidence of those events can only be given by those who participated and witnessed it. These events were nowhere reduced into any writing between the parties and therefore, were in my finding admissible in evidence and does not amount to varying or contradicting or adding or subtracting from the content of the letter of allocation issued to the 1st Respondent by the 2nd Appellant as vehemently but erroneously contended by counsel for the Appellants.
Now, looking at the letter of allocation, it appears and I so hold that the case of the 1st Respondent that there was no time he agreed with the 1st Appellant to purchase the property in dispute, known to and chosen as House 13 by the 1st Respondent but known as House 11 to the Appellants, that the 1st Appellant will purchase it from the 2nd Appellant and re-sell same to the 1st Respondent. I find that the transaction was between the 2nd Appellant and the 1st Respondent for an outright purchase of the property in dispute but with the 1st Appellant acting as the known agent of the 2nd Appellant and acting on its behalf as at April 2010. This is where the law that oral evidence cannot be used or allowed to be used to vary or contradict the contents of written document really comes in and I hereby so apply it and hold that the transaction between the parties was one for the outright purchase of the property in dispute by the 1st Respondent from the 2nd Appellant but the 1st Appellant having acted as the known agent of the 2nd Appellant the payments were made through it to the 2nd Appellant, and that explains why it was the 2nd Appellant that issued the allocation letter to the 1st Respondent and not the 2nd Appellant that did so. See Omega Bank Nig. Plc V. O.B.C. Ltd (2005) All FWLR (Pt.249) 1964 AT P. 1993. My Lords, in the light of all I have stated and found as above, I cannot but agree completely with and affirm the findings of the lower Court as correct when it held and stated inter alia thus:
“I am of the view that the Plaintiff have demonstrated that House No. 13 Vienna Crescent, Sun City Estate, Abuja is the same house the 1st and 2nd Defendants described as House No. 11 Vienna Crescent, Sun City Estate Abuja, I so hold. It is instructive to point out here that the failure of the 2nd Defendant to call Mr. Victor who was its agent and was present when the Plaintiff identified the House in dispute, to either prove or disprove this fact of wrong identification of the House in dispute is fatal to the Defendant’s case.”
Having also found that Exhibits Z21, Z 22 and Z23 were inadmissible, I cannot but agree with the finding of the Lower Court and expunging of these Exhibits by it as correct when it held inter alia thus:
“It is also instructive to note that Exhibits Z21, Z22 and Z23 relied upon by the Defendants were Exhibits made during the pendency of this case and therefore inadmissible by virtue of Section 83(3) Evidence Act… Therefore, the said Exhibits 7.21 7.22 and Z23 were prepared by Arimap on the instruction of the 2nd Defendant who is an interested party in the case.”
In Olomo V Ape (2015) 14 NWLR (Pt. 1478) 46 AT Pp. 60 – 61, the Court held inter alia as follows:
“The nature of the disqualifying interest will depend upon the nature of duty the maker can be relied upon to speak the truth and that he will not be adversely affected thereby, the documents as always been admitted in evidence. The facts of this case have clearly disclosed that the surveyor has a personal interest in the result because he was engaged by an interested party, the lower Court was therefore right to have rejected the Survey Plan.”
Now, a word or two on possession. Interestingly, when it comes to the issue of possession of land in dispute. the law is well settled that he who proves title to land is equally entitled to possession of the land in dispute. So settled is this position of the law that a person with a valid and better title to land is by law deemed to be in possession even where he is not in de – facto physical possession of the land as against a person without any color of right to the land. See Carrena V. Akinlase (2008) 14 NWLR (Pt. 1107) AT p. 262. See also Mr. Frank Anyi & Ors V. Chief Harry Ayoade Akande & Ors (2017) LPELR – 41973(CA) per Geergewill JCA.
I find that Exhibit P1 is not a document of title strict senso and therefore, was rightly admitted in evidence without registration under the Land Instruments Registration Law, being not a registrable instrument. Truly, I just realised that the 2nd Respondent failed to make out even prima facie case of any colour of title to House 13 now reregistered as House 11 against the 1st Respondent. In law, the 1st Respondent was indeed not under any duty to prove anything in defence to the bogus and unproved counter-claim of the 2nd Respondent, which was rightly dismissed by the lower Court.
Thus, no matter the length of time of unlawful and or unauthorized entry and occupation of land, it cannot in law metamorphose or ripen into legal possession of the land. See Bennet Ude Agu V. Ozo Moses Nnadi (1999) 2 NWLR (Pt. 589) 131. See also Anyi & Ors V. Akande & Ors (2017) LPELR – 41973(CA) per Georgewill JCA.
So, with the correct finding of fact by the lower Court that it was House 13 identified and paid for the 1st Respondent but now referred to as House 11 by the Appellants, that is to say, the property referred to as House 13 by the 1st Respondent and the property referred to as House 11 by the Appellants are one and the same and with the subject matter of this case, it would appear that even at law as in equity the basic rule is that estates and interest primarily rank in the order of creation, ‘Qui prior est tempore potior est jure’ – he who is earlier in time is stronger in law.
The 1st Respondent was not only the first to purchase the property in dispute but was also the first to enter into possession with his workmen before the unjustified interference by the Appellants under the guise of wanting to give the same property in dispute to the 2nd Respondent without showing where he was when the 1st Respondent was given approval by the 2nd Appellant to enter into his property now in dispute to commence work thereon. The 2nd Appellant having therefore, earlier divested itself of any proprietary interest in the property in dispute in favor of the 1st Respondent, no longer had any interest in the said property in dispute which it could validly vest in the 2nd Respondent. See Ogunameh V. Adebayo (2008) 25 WRN 85 AT P. 190.
The 2nd Respondent who without any colour of valid right or title to the land but had rushed on to complete the building thereon and rented out to tenants was at best in mere occupation and not in any legal possession as could be protected by law. In law, such mere occupation or even illegal possession constitutes at best trespass at the suit of the person with a better title and thus pales into insignificance once the person with a better title appears on the scene. See Anyi & Ors V. Akande & Ors (2017) LPELR – 41973(CA) per Georgewill JCA. See also Gankon V. Ugochukwu chemical Ind. Ltd (1993) 6NWLR (Pt. 297) 55; Shogo V. Adebayo (2000) 4 NWLR (Pt 686) 121, Carrena V. Akinlase (2008) 14 NWLR (Pt. 1107) AT p. 262.
Thus, at the time the 2nd Appellant purported to sell the property in dispute under the now exposed disguise of passing it off as House 11, to the 2nd Respondent, it had no such or any proprietary interest in the said property any longer to convey or sell to the 2nd Respondent. The exercise to that effect was therefore, in law not only futile but amounts to a nullity and of no legal effect whatsoever. The law is and has always been ‘nemo date quod non habet’ – A person cannot give out what he does not have. See Kari V. Ganaram (1997) 2 NWLR (Pt.488 403 AT p. 408. see also Okelola V. Adeleke (2004) 13 NWLR (Pt. 890) 307 AT pp. 323 – 324.
As I berth at the harbour to bring this judgment to its closing phase. I thought I should pause to observe that in law trespass is constituted by the slightest disturbance to the possession of land by a person who cannot show a better right to possession and thus even where the entry into possession is under a transaction which has been declared void or found to be void ab initio, the entry itself becomes void ab initio and its lawful character losses its lawfulness and acquires an illegal or unlawful character from the very moment the entry was made. So, it is with the 2nd Respondent, by the finding of the lower Court that the property in dispute was validly and rightly sold to the 1st Respondent by the 2nd Appellants, who was in my finding thus incapable of conferring any interest in the property in dispute on the 2nd Respondent, who became clearly a trespasser on the property in dispute. I so firmly hold. See Anyi & Ors V. Akande & Ors (2017) LPELR – 41973(CA) per Georgewill JCA. See also Ojomo V. Ibrahim (1999) 12 NWLR (Pt. 631) 415. See also Solomon V. Mogaji (1982) 11 SC 1 AT P. 37.
Now this is one of those cases that bring to the fore and continues to reinforce the land law principle well settled over hundreds of years ago that a buyer must beware ‘caveat emptor’ in order to avoid the unpleasant consequences of buying nothing but a law suit and an empty worthless document of title incapable of vesting on the buyer any known right, whether legal or equitable, on the land the subject matter of such bogus purchase. This case graphically and strongly illustrates the fool hardiness of a party who rushes, dabbles and stumbles into land transaction and even before obtaining a valid or proper or even equitable title thereto, rushes ahead with the construction of a building or structure on the land in dispute.
Now, if it turns out tomorrow, as it would sooner or later, that he had bought nothing from his alleged vendors, the 2nd Appellant, then by the operation of the very old land law maxim of ‘quid quid platatur solo solo cedit’ – meaning whatever is affixed to the land belongs to the owner of the land, he may end up losing not only the money used in buying and obtaining his invalid title to the land but also the investment on the building. A word should be enough for the prudent and wise buyers of land to look very well and deeply before they leap into buying land! I say no more. See Adejumo V. Olawaiye (2014) 31 WRN 30 AT p. 38.
How so apt for the pathetic situation the 2nd Respondent with his two eyes wide opened had put himself into! It is for this reason a buyer of land must beware because a land buyer who ends up buying nothing but had proceeded to invest huge sums of his hard-earned money developing such a land in dispute stands the risk of losing his investment thereon on the land no matter how huge to the true and rightful owner of the land in dispute. So, it seems is the lot of the 2nd Respondent, having held that the Lower Court was right to have awarded the property in dispute to the 1st Respondent as against the 2nd Respondent.
How sad, with the admitted complete development of the property in dispute by the 2nd Respondent and letting it out to tenants but that is the law as it and not as it ought to be. In and by virtue of operation of law therefore, everything on the land in dispute, found to belong to the 1st Respondent, becomes automatically belonging and vested in the 1st Respondent under the land law maxim of ‘quid quid plantatur solo solo cedit’ and so be it. See Orianwo V. Okene (2002) 14 N WLR (Pt. 786) 156 AT P. 164.
In the light of all I have stated and found as above, issues one, three, four, six, eight and nine are hereby resolved against the Appellants in favor of the 1st Respondent only.
ISSUES TWO, FIVE AND TEN
APPELLANTS’ COUNSEL SUBMISSIONS
In his submissions on issue two, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that in law contempt of Court is an affront to the authority and dignity of the Court and is viewed seriously and punished adequately by the Courts where such disobedience or contempt is established and contended that when the restraining order was made on 16/3/2012, the 2nd Respondent was not a party to the 1st Respondent’s suit and had already completed the development of the property on House 11 on 2710/2011 and thus not affected by the said restraining order and urged the Court to hold that, in the circumstances, the lower Court was wrong when, in the absence of any Order of interlocutory injunction, it proceeded to raise suo motu the issue of contempt and hold that the Appellants and 2nd Respondent completed the building on House 11 during the sustenance of the restraining order and without hearing from the Appellant found them in contempt of the said order and to allow the appeal and set aside the perverse judgment of the Lower Court. Counsel relied on Brittania – U (Nig.) Limited V. Seplat Petroleum Development Company Limited (2016) LPELR – 40007(SC) and Union Bank of Nigeria Limited V. Ozigi (1994) LPELR – 3389 (SC).
In his submissions on issue five, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong when it held that the failure of the 2nd Appellant to call one Mr. Victor, its agent and who was present when the 1st Respondent identified the house in dispute, to either prove or disprove this fact of wrong identification of the house in dispute was fatal and contended that the said Mr. Victor, Mr. Taiwo Adelugba and Mrs. Ngozi Chukwu, both of whom testified were both present and urged the Court to hold that the failure to call Mr. Victor was of no consequence whatsoever and to allow the appeal and set aside the perverse judgment of the Lower Court. Counsel relied on Alli & Anor V Alesinloye & Ors (2000) LPELR – 427 P. 36 and lyere V Bendel Feed and Flour Mill Ltd (2008) LPELR – 1578 (SC) AT p. 49.
In his submissions on issue ten, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong when it held that the issue of the 1st Respondent proving the juristic personality of the Appellants is of no moment on the ground that the 1st Appellant admitted that the Appellants are independent and separate limited liability companies and contended that there was nowhere in the 1st Appellant Further Amended Statement of Defense, admitted paragraphs 2, 3 and 4 of the 1st Respondent’s Further Amended Statement of Claim and urged the Court to hold that the 1st Respondent failed to prove the legal personality of the Appellants and to allow the appeal, set aside the perverse judgment of the lower Court and strike out the 1st Respondent’s Suit for being incompetent. Counsel referred to Chambers Concise Dictionary 1988 Edition AT P. 343 and relied on Dairo & Ors V. Registered Trustees of The Anglican Diocese of Lagos (2017) LPELR – 42573(SC) AT p. 5; ACB V. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issues two and five, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that lower Court was right when it held that in holding that the Appellants and the 2nd Respondent went ahead to complete the House disobedience of its order restraining them from doing so pending the determination of this Suit and contended that the restraining order was made by the lower Court on 16/3/2012 without any objection of the Appellants and urged the Court to hold that the 2nd Respondent is a privy to the 2nd Appellant and therefore, was also bound by the restraining order and to affirm the finding of the lower Court that the Appellants and the 2nd Respondent acted in breach of the restraining order when they went ahead to complete the house on the property in dispute and to dismiss the appeal. Counsel relied on Eze V. University of Jos (2017) All FWLR (Pt. 898) 101 AT pp. 113 – 114.
In his submissions on issue ten, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the Appellants admitted that they are independent and separate and juristic personality and contended that the Appellants having either admitted or not specifically traversed the averments of the 1st Respondent as to their legal status were deemed to have admitted their legal status and urged the Court to hold that the lower Court was right when it held that based on the admissions by the Appellants the issue of proving the juristic personality of the 1st Appellant was of no moment and to dismiss the appeal and affirm the correct judgment of the lower Court. Counsel relied on Bamgbegbin V. Oriare (2009) 13 NWLR (Pt. 1158) 370 AT Pp. 394 – 395.
RESOLUTION OF ISSUES TWO, FIVE AND TEN
My Lords, issues two, five and ten for determination, deal basically with whether or not the lower Court was right when it held that the Appellants and the 2nd Respondent were in breach of its order restraining them from continuing with the completion of the property in dispute. On 20/12/2011, the 1st Respondent filed a Motion on Notice for interlocutory injunction against the Appellants and by the affidavit in support it was deposed that the property in dispute was under possession of the 1st Respondent from 14/6/2011 when he was granted permission by the 2nd Appellant to complete the finishing work on the House 13 to the time of the filing of the suit on 19/12/2011. The Appellants did not file any counter-affidavit to this affidavit of the 1st Respondent. However, on the agreement of both parties, at a time when the 2nd Respondent was not yet a party on the record, the lower Court granted an order for the maintenance of the status quo on the property in dispute.
On 27/6/2013, the 1st Respondent, believing that the order of the lower Court had been breached by the Appellants filed a Motion on Notice for their committal for contempt. By Paragraphs 24 and 25 of the Counter-Affidavit of the 2nd Respondent to the Motion for Committal, it was deposed that the 2nd Respondent completed the work on House 11 on 27/10/2011 at a time he was not a party to the 1st Respondent’s suit. However, on 29/9/2017, the motion for contempt was withdrawn and struck out. See pages 27 – 47, 44, 48 and 426 – 441 of the Record of Appeal.
My Lords, the crux of the contention of the 2nd Respondent here is simply that whatever order restraining the parties that was made by the Lower Court, it was made at a time he was not a party and therefore, his continuing to complete the work on the property in dispute was not affected by the said order of the lower Court contrary to the finding of the Lower Court. On 16/3/2012, the lower Court had made an order restraining the parties from continuing with any work on the property in dispute but regrettably when it visited the locus in quo on 27/10/2017. it observed that the work on the property in dispute had been completed by the 2nd Respondent. Now, who are parties to an action in Court?
In law, parties do not refer to and cover only those named on the suit but it also covers and extends to their privies. So, who is a privy to a party on record? In Alhaji Adekunle Agbalajobi & Anor V. Governor of Lagos State (2017) LPELR – 41955 (CA), this Court per Georgewill, JCA., had to consider who are parties to a suit and who must be bound by the judgment of the Court and we reiterated inter alia thus:
“A judgment of the Court binds not only the parties but also all those who come within the legal ambit of privies to the parties on the record. In law, privies are of three classes, namely: Privies in blood; Privies in law, and Privies in Estate. See Vol. 15 Halsbury Laws of England, 3rd Edition P. 196 Article 372.”
Again, in The Vessel Mt. & Anor V. Ghana Commercial Bank Ltd (2021) LPELR – 54556 (CA) @ pp 43 – 44, this Court per Georgewill JCA. had further reiterated inter alia thus:
“I thought I should point it out at once that, in relation to parties to a suit, the law is that privies are those who are in privity with the parties on record. It refers to anyone who is a partaker or has any part or interest in any action or matter or thing or one who after the commencement of an action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritance, purchase or assignment.”
See also Coker V. Sanyaolu (1976) 10 NSCC 566 @ p. 573, Adone V. Ikebudu (20010 7 SCNJ 513 p. 534 and Daniel V. Kadiri & Anor (2010) LPELER – 4017(CA).
In follows therefore, the contention by the 2nd Respondent that it was not a party at the time the order was made by the lower Court and he was thus not affected by the order of the lower Court and therefore, was free to continue with the work on the property in dispute is a fable in law and not correct. The 2nd Respondent being indisputably a privy in estate to the 2nd Appellant in relation to the property in dispute was obliged to obey the order of the lower Court restraining the 2nd Appellant. Interestingly, the 2nd Respondent’s application to commence work which was made on 22/8/2011 vide Exhibit Z25 but no iota of any’ evidence was led by the 2nd Respondent of any grant of the requisite approval to him by the 2nd Appellant and yet he had proceeded to complete and let out the property in dispute during the subsistence of the restraining order of the lower Court. See Alhaji Adekunle Agbalajobi & Anor V. Governor of Lagos State (2017) LPELR – 41955 (CA) per Georgewill JCA. See also British American Tobacco Plc V. Attorney -General of Lagos State (2017) LPELR – 50681 (CA) per Georgewill JCA, The Vessel Mt. Svlla & Anor V. Ghana Commercial Bank Ltd (2021) LPELR – 54556 (CA) AT Pp. 43 – 44, per Georgewill JCA.
In my finding therefore, the failure of the 2nd Respondent and the Appellants to abide by the order of the lower Court made on 16/3/2012 and the 2nd Respondent continuing to complete the work on the property in dispute during the pendency of the 1st Respondent’s suit amounted clearly to a breach of the order of the lower Court as rightly found by the Lower Court, which finding I do hereby, without any hesitation, affirm. The Appellants and the 2nd Respondent, on the unchallenged evidence that the property in dispute was not developed at the time the order was made by the Lower Court but which property was fully developed and even let out to tenants at the time of the visit to the locus in quo by the lower Court, were clearly in breach of the order of the lower Court, a fact not even denied by the Appellants. See Eze V. University of Jos (2017) All FWLR (Pt. 898) 101 @ pp. 113 – 114, where the Supreme Court had stated inter alia thus:
“An affidavit is a deposition by the deponent stating clearly his factual position on the issue for consideration. So, once the facts deposed to in an affidavit have not been controverted, such facts must be taken as true except they are moonshine.”
I have looked at the processes filed and the withdrawal of the motion for contempt and I find that the withdrawal was not because of lack of proof of breach of the order of the lower Court but rather the realization by the 1st Respondent that the allegation by the Appellants that Forms 48 and 49, which are condition precedent to contempt proceedings were not served on them was true. See pages 410 – 411 of the Record of Appeal.
It was contended by the Appellant that the issue of disobedience of the restraining order of the lower Court made on 16/3/2012 was raised suo motu but having taken time to go through the submissions of the parties in their final written addresses before the lower Court, I find that contrary to the contention of the Appellants this issue was duly raised by the 1st Respondent at paragraph of 2.0 of the 1st Respondent as Claimant’s final written address before the lower Court. I hold therefore, that this contention is clearly misconceived and unsustainable and it is hereby discountenanced. See page 516 of the Record of Appeal.
On the issue of the juristic personality or otherwise of the Appellants, it is the law that parties are bound by the averments in their pleadings and are therefore, obligated to conduct and present their case within the confined of their pleadings. A party cannot plead one thing and contend another thing at the trial or on appeal. In paragraph 2 of the 1st Respondent’s Further Amended Statement of Claim, it was averred as follows:
“The 1st Defendant is a private company limited by shares with RC. 226958 and authorized by the Memorandum and Articles of Association and the relevant Statutory Institution to engage in the activities of mortgage banking. The principal place of business of the 1st Defendant within jurisdiction is at No. 11 Kaura Namoda Off Faskeri Crescent, Area 3 Graki Abuja FCT.” See page 53 of the Record of Appeal.
In paragraph 2 of the 1st Appellant’s Further Amended Statement of Defense it was averred as follows: “The 1st Defendant categorically denies paragraphs 2, 3 and 4 of the further Amended Statement of Claim and puts the Plaintiff to the strictest proof thereof.” See page 135 of the Record of Appeal.
The 2nd Appellant on its part had no issues at all admitting the averments of the 1st Respondent in paragraphs 2 and 3 of the 1st Respondent’s Statement of Claim. In paragraph 2 of the 2nd Respondent’s Amended Statement of Defense it was averred as follows:
“The 2nd Defendant admits paragraphs 2 and 3 of the Statement of Claim.” See page 208 of the Record of Appeal.
My Lords, from the above averments, it is clear to me that whilst the 1st Appellant did not specifically, as required of it by the rules of pleadings. particularly effective traverse, effectively deny paragraphs 2 of the 1st Respondent’s Further Amended Statement of Claim, the 2nd Respondent unequivocally admitted that it was a juristic personality as averred by the 1st Respondent. It follows, and I so hold that with the 1st Appellant having not specifically traversed the averment of the 1st Respondent that it is a juristic personality, it is deemed to have admitted that it is a juristic personality. In law, juristic personality of a company is automatic upon its due registration under the relevant laws of the land. A general denial, as the 1st Appellant did, cannot therefore, amount to proper effective denial in law but amounts to admission, and what is admitted needs no further proof. See Bamgbegbin V. Oriare (2009) 13 NWLR (Pt. 1158) 370 pp. 394 – 395, where the Supreme Court had stated inter alia thus:
“The position of the law on a traverse of a general nature… a general traverse is not enough to controvert material and essential importance averments in the Statement of Claim which are the foundation of the Plaintiffs case and that such averments are radical and must be specifically denied.”
See also Lewis & Peat (N.R.I.) Ltd V. Akhimien (1976) 7 SC 157, Akintola V. Solano (1986) 2 NWLR (Pt. 24) 598, Lagos City Council V. Ogunbiyi (1969) 1 All NLR 297 P. 299, Ibeanu V. Ogbeide (1998) 12 NWLR (Pt. 576) 1 and Adelaja V. Alade (1999) 6 NWLR (Pt. 608) 544.
In the circumstances therefore, the lower Court was perfectly right when it held that based on the admissions by the Appellants, the issue of proving the juristic personality of the 1st Appellant, and if I may add the 2nd Appellant too, was of no moment since facts admitted need no further proof. In the light of all the above, issues two, five and ten for determination are hereby resolved against the Appellants in favour of the 1st Respondent.
On the whole therefore, having resolved all the eleven issues for determination against the Appellants in favour of the 1st Respondents, I hold that the appeal lacks merit and is liable to be dismissed. Accordingly, it is hereby dismissed.
In the result, the judgment of High Court of the Federal Capital Territory Abuja, Coram: Salisu Garba J, in suit no. FCT/HC/CV/2043/2011: Ibrahim D. E1 – Ladan Esq. V. Infinity Trust Saving & Loans Limited & Ors delivered on 30/5/2018, in which some of the claims of the 1st Respondent as Claimant were granted against the Appellants and the 2nd Respondent as Defendants is hereby affirmed.
There shall be cost of N300,000. 00 against Appellants in favour of the 1st Respondent only.
CROSS-APPEAL
This is a Cross-Appeal against the judgment of High Court of the Federal Capital Territory Abuja, Coram: Salisu Garba J, in Suit No. FCT/HC/CV/2()43/2011: Ibrahim D. El – Ladan Esq. V. Infinity Trust Saving & Loans Limited & Ors delivered on 30/5/2018, in which it declined to grant the Cross-Appellant’s claims for damages against the Cross – Respondents.
The Notice of Cross-Appeal on two grounds of appeal was filed on 17/11/2020 but was deemed properly filed on 7/5/2021. The Records of Appeal as compiled and transmitted in the main appeal were also relied upon in this Cross-Appeal. Only the Cross-Appellant filed his brief as all the Cross-Respondents did not file any brief. The Cross-Appellant’s brief was adopted as his arguments at the hearing of this Cross-Appeal on 1/3/2022. The Cross-Appellant was represented by Danjuma G. Ayeye Esq., appearing with Okechukwu Edeze Esq.
The Cross-Appellant as Claimant before the lower Court had claimed amongst other reliefs several heads of damages against the Cross-Respondents, to wit: See pages of the Record of Appeal.
BRIEF STATEMENTS OF FACTS
The gist of the cases of the respective parties before the lower Court have been set out in great details in the judgment on the main appeal. The aspect relevant to the Cross-Appeal was the alleged refusal of the lower Court in is judgment delivered on 30/5/2018 to grant any of the heads of damages claimed by the Cross-Appellant against the Cross-Respondents having allegedly held that the Cross-Appellant made out his claims for damages against the Cross-Respondent and was therefore entitled to damages against the Cross-Respondents, hence the Cross-Appeal. See pages 64 – 66 and 617 – 619 of the Main Record of Appeal.
ISSUE FOR DETERMINATION
In the Cross-Appellant’s brief a sole issue was distilled as arising for determination from the two grounds of appeal in the Cross-Appeal. to wit:
“Whether having found that the Cross-Appellant made out a case for damages against the Cross-Respondents, the lower Court was not bound to award same to the Cross-Appellant?” (Distilled from Grounds 1 and 2)
My Lords, in the absence of any Cross-Respondents’ brief and having the pleadings, evidence and findings of the lower Court in the judgment cross-appealed against by the Cross-Appellant, I accept, adopt and hereby set down the sole issue as distilled in the Cross-Appellant’s brief as the sole issue arising for determination in this Cross-Appeal.
SOLE ISSUE
Whether having found that the Cross-Appellant made out a case for damages against the Cross-Respondents, the lower Court was not bound to award same to the Cross-Appellant?
CROSS – APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on the sole issue, which I have taken time to review, learned counsel for the Cross-Appellant had submitted inter alia that the lower Court having found that the Cross-Appellant made out a case for damages against the Cross-Respondents, the lower Court was bound to award the damages as claimed by the Cross-Appellant against the 1st and 2nd Cross-Respondents and contended that the Cross-Appellant claimed and proved his special damages claim for the sum of N4, 050, 000. 00 as accrued rents, the sum ofN346, 500. 00 as cost of electrical fixtures and fittings, the sum of N275, 600. 00 as cost electrical wiring and fittings, the sum N138, 450. 00 as cost of electrical conduit wiring and pipes, the sum of N300.000.00 as cost of labor for Mason and workmen, the sum of N90,000.00 as cost of labor for electrician and workmen and urged the Court to hold that the lower Court was wrong when having found that the Cross-Appellant proved his claim for special damages it failed to award the special damages claim of the Cross-Appellant against the 1st and 2nd Cross – Respondents and to allow the appeal and grant the special damages claims of the Cross – Appellant against the 1st and 2nd Cross – Respondents. Counsel relied on Aguocha V. Aguocha (2005) 1 N WLR (Pt. 906) 165 AT p. 192. See also Okonkwo V. Okonkwo (2014) 17 NWLR (Pt. 1435) 18 AT p. 68, Towoeni V. Towoeni (2002) 1 SMC 173 at 189, (2001) 12 NWLR (Pt.727) 445, Ushae V. COP (2005) 11 NWLR (Pt. 937) 49 AT p. 53, Agu V. General Oil Ltd (2015) 17 NWLR (Pt. 1488) 327 AT p. 355, Ulegede V. the Military Administrator, Benue State (2001) 2 NWLR (Pt. 696) 73 AT pp. 92 – 93.
RESOLUTION OF THE SOLE ISSUE
My Lords, there is no disputation or any contention here that the lower Court found that the Cross-Appellant made out a case for damages against the Cross-Respondents but did not deem it fit to award any damages against the Cross-Respondents in favor of the Cross-Appellant.
The Cross-Appellant as Claimant had by his pleadings claimed as special damages the sum of N4, 050, 000. 00 as accrued rents, the sum of N346, 500. 00 as cost of electrical fixtures and fittings, the sum of N275, 600. 00 as cost electrical wiring and fittings; the sum N 138, 450. 00 as cost of electrical conduit wiring and pipes: the sum of N300,000.00 as cost of labor for Mason and workmen, the sum of N90,000.00 as cost of labor for electrician and workmen. See paragraphs 38(a) (b) (c) (d); 45 – 52 and 53 – 55 of the Cross-Appellant’s Further Amended Statement of Claim at pages 60 – 63 of the Record of Appeal.
In its judgment, the lower Court had found and held inter alia thus:
“With respect to damages as claimed by the Plaintiff, I am of the firm view that the Plaintiff has made out a case against the Defendants on the footing of damages for breach of contract. The combined effect of Exhibits O, P, X 1, X2 and X3 clearly established the Plaintiff’s claim.” See pages 617 – 619 of the Record of Appeal.
My Lords, it seems clear to me that the lower Court having found as fact, and quite rightly in my view too, that the Cross-Appellant proved his case for damages against the Respondents ought to have awarded the special damages claims of the Cross-Appellants against the 1st and 2nd Cross-Respondents. In law, once a Court finds that a party has proved his claim, it is bound to make pronouncement on such reliefs claimed by the party. See Ulegede V. The Military Administrator, Benue State (2001) 2 NWLR (Pt. 696) 73 AT pp. 92 – 93. See also Agu V. General Cil Ltd (2015) 17 NWLR (Pt. 1488) 327 AT p. 355, Aguocha V. Aguocha (2005) 1 NWLR (Pt. 906) 165 AT p. 192, Towoeni V. Towoeni (2002) 1 SMC 173 at 189, (2001) 12 NWLR (Pt.727) 445.
It follows therefore, where a Clamant pleads his claim in special damages with particularity and gives some evidence of it and a Defendant does not challenge or contradict the evidence given, he would be held to have discharged his onus of proof since what would be required of him is minimal proof and unless the evidence is of such a quality that no reasonable tribunal can accept it, it ought to be accepted. See Kosile V. Folarin (1989) LPELR – 1705(SC) AT pp. 16 – 17.
However, this is a case in which by the operation of the land law Latin maxim of ‘Quid Quid Plantatur, Solo solo cedit’ the Cross-Appellant had been declared and become the owner of the building put up and completed on the property in dispute by the 3rd Cross-Respondent running into millions of naira. I think, and I hope and pray I am right, that this compensation by way of the Cross-Appellant being declared and thus becoming the owner of all the completed building affixed to his land should be enough to assuage the Cross-Appellant of all the expenses he had made on the property in dispute before it was fully completed by the 3rd Cross – Respondent. I shall therefore, award to the Cross-Appellant, in addition to the completed property in dispute, either referred to as House 13 by the Cross-Appellant or House 11 by the Cross-Respondents, the sum of N10. 000. 00 as nominal damages.
In the result, that part of the judgment of the High Court of the Federal Capital Territory Abuja, Coram: Salisu Garba J, in Suit No. FCTÆC/CV/2043/2011: Ibrahim D. E1 – Ladan Esq. V. Infinity Trust Saving & Loans Limited & Ors delivered on 30/5/201 8, in which it declined and or failed to make any award on the claims for damages by the Cross – Appellant against the Cross – Respondents, is hereby set aside. In its stead, I hereby award the sum of N10,000.00 only as nominal damages against each of the 1st, 2nd and 3rd the Cross – Respondents in favor of the Cross-Appellant, the lower Court having already awarded to the Cross-Appellant the entire property put up by the 3rd Cross – Respondent on the property in dispute, House No. 13, Vienna Crescent, Suncity Estate Abuja as it is described by the Cross-Appellant, which is the same property as House 11, Vienna Crescent, Suncity Estate Abuja as it is described by the 1st, 2nd and 3rd Cross – Respondents.
There shall be cost of N200, 000. 00 against each of the 1st 2nd and 3rd Cross-Respondents in favour of the Cross-Appellant.
PETER OLABISI IGE, J.C.A.: I have read in advance the very detailed leading judgment of my learned brother, GEORGEWILL, JCA and I agree with him that all the eleven issues nominated for resolution ought to be resolved against the Appellants and that the appeal be dismissed.
I abide with the consequential orders made in the said judgment. I also agree with the judgment on the Cross-Appeal and the orders contained therein.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother, Sir Biobele Abraham Georgewill, JCA. I am in full agreement with the reasonings and conclusions he arrived at on both the main appeal and the Cross-Appeal. I adopt those reasonings as mine, by which I too upset the part of the lower Court’s judgment wherein it failed to make an award for damages claimed by the Cross-Appellant which was clearly proved against the Cross-Respondents. Instead, that unjustifiable lacuna is hereby upturned and rectified by the award of nominal damages only in the sum ordered in the lead judgment. I also abide by the order on cost.
Appearances:
Michael Ugwuanyi Esq. – for Appellants/1st and 2nd Cross – Respondents For Appellant(s)
Danjuma G. Ayeye Esq., with him Okechukwu Edeze Esq. – for 1st Respondent/Cross –
Appellant
Tony Mozie Esq. – for 2nd Respondent/3rd Cross-Respondent For Respondent(s)
