MR. DAVIDSON OPARAJI V. MR. JOHNSON AHIHIA
(2011)LCN/4339(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of February, 2011
CA/PH/44/2005
RATIO
EQUITY: WHAT THE DOCTRINE OF EQUITY ENTAILS
Equity follows the law. And it looks at the substance and not the form. Equity also acts in personam, and takes as done that which ought to have been done. The court of law and justice will therefore hold a party to his bargain where it is shown that the party executed a document, albeit wrongly as Appellant is suggesting, by which he has, upon material consideration received, divested himself of title in favour of another. PER EJEMBI EKO, J.C.A.
ALLEGATION OF FORGERY: WHETHER AN ALLEGATION OF FORGERY MUST BE PROVED BEYOND REASONABLE DOUBT
I agree with the learned trial Judge, when he held at page 57 of the Record, that – Forgery allegation in any matter whether criminal or civil is always regarded as a serious issue and the proof is one and the same. The proof as envisaged must be beyond reasonable doubt. He further held that this allegation was neither pleaded nor proved as required by law. This finding, having not been contested or appealed, is binding on the Appellant. That is because there is a presumption that the Judge has rightly exercised his discretion: CHARLES OSENTON & CO. v. JOHNSON (1941) ALL ER 245 at 257. PER EJEMBI EKO, J.C.A.
FINDINGS OF FACTS: ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF FACT MADE BY THE TRIAL COURT
The attitude of the appellate court to findings of fact made by the trial court is that it will not interfere with such findings of fact unless the findings are perverse and/or unreasonable having regard to the printed evidence. See APE SALISU v. ODUMADE (2010) 41.2 NSCOR 729. The business of the appellate court is not to reopen the matter and start trying it as it were de-novo. Its proper function is merely to oversee and review the way the dispute and issues arising therefrom were tried to see whether the trial court used the correct procedure and/or whether it arrived at the right and proper decision: CHUKWUOCHA v. ONUOHA (1991) 4 NWLR 234 at 241; OBODO v. OGBA (1987) 2 NWLR (Pt.54) 10. PER EJEMBI EKO, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MR. DAVIDSON OPARAJI Appellant(s)
AND
MR. JOHNSON AHIHIA Respondent(s)
EJEMBI EKO, J.C.A., (Delivering the Leading Judgment): The Appellant was, at the trial High Court (Coram T.K, Osu, J), the Defendant/Counter-Claimant. The Respondent, as the plaintiff, had claimed against the Appellant as follows:-
1. A declaration that the plaintiff is the person entitled to statutory right of occupancy over that piece of land situate and being Ohia Otuloro Ahihia Rumuoluihere, Rumuokwurusi Obio, Obio/Akpor Local Government Area, Rivers State, the defendant having alienated the said piece of land to the plaintiff for valuable consideration in 1990.
2. The sum of N1 million (one million Naira) as damages for trespass committed by the Defendant in the month of January, 2001 when the Defendant unlawfully erected a gate across the said parcel of land without prior consent of the plaintiff
3. A perpetual injunction restraining the Defendant by himself, servants, agents or privies from further trespass on the said land.
The Appellant, as Defendant/counter-claimant, in his statement of defence raised a counter-claim with three reliefs similar in terms to those claimed by the Respondent against him.
Pleadings were exchanged. The parties in litigation clearly knew the parcel in dispute. They call it Ohio Otuloro Ahihia. It is not disputed that the disputed parcel of land was originally part of the Defendant’s land. The Plaintiff had allegedly bought another parcel of land behind the disputed land and had developed it with tenants and himself occupying same. He needed the disputed land as access road to his house. It is further alleged that through one Mohammed Agbolu (PW.2), a relation of the Defendant; the parties struck a deal, and the disputed land-was, in 1999, sold to the Plaintiff by the Defendant in consideration of the sum of N3,000.00 paid in two instalments by the Plaintiff to the Defendant. Suddenly, between December 2000 and January 2001, it is averred, the Defendant fenced off the land and erected thereon a metal gate, thereby preventing the Plaintiff’s access to his house through the disputed land. The Plaintiff claimed that he reported this matter to the elders of the community and that on 4th January, 2001 the said elders “mediated over the land issue and ordered the Defendant to remove the gate he has erected on Plaintiff’s land.” The Defendant, not withstanding the mediation would not budge; hence this suit. The Plaintiff says this “blatant act of trespass by the Defendant constitutes a breach of covenant of quiet enjoyment.”
The Defendant denies all the allegations of the Plaintiff and insists that since he did not sell the land to the Plaintiff the “Plaintiff is not entitled to any quiet possession of or peaceable enjoyment of the Defendant’s land.” On the mediation and decision of the elders of the community of 4th January 2001 that he should remove the gate; the Defendant merely avers in paragraph 6 of the statement of defence –
6. The Defendant strongly denies paragraph 9 of the statement of defence and puts the defendant to the strictest proof thereof.
This can not be a proper traverse of the specific statement of fact contained in paragraph 9 of the statement of claim, assuming “the statement of defence” and “the defendant” in paragraph 6 of the statement of defence are respectively references to “the statement of claim” and “the plaintiff.” A proper traverse must be a specific denial which joins issues on facts with the Plaintiff. See LEWIS PEAT (NRL) v. AKHIMIEN (1976) 1 FNR 80; AKINTOIA v. SOLANO (1986) 2 NWLR 598. A general traverse is not enough to controvert material and essentially important and radical averments in the statement of claim which are foundations of the Plaintiff’s case. A traverse, as I understand it, is a categorical denial in the statement of defence of any fact alleged in the statement of claim. The Plaintiff, in paragraph 9 of statement of claim, avers that he protested the erection of the gate by the Defendant to the people of the community and that –
Consequent upon his protest over the encroachment on the said land by the Defendant, some natives of Rumuokwurusi, Obio/Akpor Local Government Area on 4.1.2001 mediated over the land issue and ordered the Defendant to remove the gate he has erected on the Plaintiff’s land. The plaintiff has thereby pleaded estoppel of mediation against the Defendant, which requires the latter to properly join issues with. The effect of improper traverse is that facts not denied are taken as admitted and established. I leave the matter for now.
The parties called evidence at the close of pleadings. The plaintiff called two witnesses; that is himself as PW.1 and Mohammed Agbolu (PW.2), a relation of the Defendant. He also produced a number of documents, which were tendered as exhibits. Only the Defendant testified in his defence. Exhibit ‘A’ is the agreement executed on 16th December, 1990. Exhibits ‘B’ and ‘C’ are the receipts for the N3,000.00 paid in two instalments. Exhibit ‘D’ is said to be the document signed on behalf of the Chiefs and Elders of the Defendant’s family by Monday Ahihia containing the decision of the said Chiefs and elders upon their deliberation over the erection of the gate; the matter pleaded in paragraph 9 of the statement of claim and allegedly denied in paragraph 6 of the statement of defence.
At the close of evidence counsel addressed the Court. In his reserved judgment, delivered on 25th October, 2004, the learned trial Judge found for the Plaintiff. He granted the declaration the plaintiff sought. He awarded N300,000.00 as damages for trespass against the Defendant, and in addition he issued perpetual injunction restraining the Defendant from further trespassing on the disputed land. In consequence of these reliefs the trial Judge struck out the counter-claim of the Defendant against the Plaintiff. Aggrieved, the Defendant filed the notice of appeal containing four grounds of appeal (at pages 61 – 63) of the Record. The reliefs sought by the Defendant, as the appellant, are that the judgment be set aside and its place an order affirming the reliefs in the counter-claim,
The appeal was argued on the briefs of arguments filed by the parties. Appellant formulated four issues out of the four grounds of appeal. The four issues are:
i. whether the learned trial Judge was right in law in granting Respondent’s reliefs at the court below by relying on Exhibit A’ (a purported deed of conveyance) and Exhibit ‘B’ a purported instalmental payment. (This issue emanates from ground A’ of the Appeal).
ii. whether the trial Judge was right in law to have relied on evidence elicited from DW.1, to the effect that the Respondent and his tenants pass through the land in dispute to his estate when same was not in the pleadings and not the case of the parties (this issue is derivable from ground B of the Appeal).
iii. whether the judgment of the trial court is not against the weight of evidence. (This issue flows from ground C of the Appeal).
iv. whether the trial Judge was right in law when he struck out the counter-claim of the Appellant. (This issue originates from ground D of the Appeal).
I will take issue ii first. On this issue Appellant submits that, from the pleadings of both parties, what was in issue was the purchase of the land in dispute and not easement or right of way. That the trial Judge made heavy weather out of it. And that in law evidence led in respect of facts not pleaded go to no issue. For this R.C.C. LTD v. OKWEJIMINOR (2002) FWLR [Pt.121] 1934 at 1944 is cited. That is the correct position of the law. But this argument is not supported by the printed Record. At page 4 of the Record, particularly paragraphs 7, 8 and 9 of the statement of claim:-
7. Plaintiffs avers that the said parcel of land has all along been used as the main and only entrance to his property behind it. As a result of this, the Plaintiff purchased the said land from the defendant for the purpose of gaining right of way to his property both located at OHIA OTULORU AHIHIA, RUMUOULUIHERE RUMUORIANWO RUMUOKWURUSHI in Obio, Obio/Akpor Local Government Area, Rivers State.
8. The Plaintiff avers that the Defendant had between 26th, 28th days of December, 2000 and 2nd day of January, 2001 erected a gate on his land, particularly outlet, without his consent.
9. The plaintiff protested the erection of the said gate on his land by the Defendant which had in addition blocked his premises. Consequent upon his protest over the encroachment on the said land by the Defendant, some natives of Rumuokwurushi Obio/Akpor Local Government Area, Rivers State on 4.1.2011 mediated over the land issue and ordered the Defendant to remove the gate he had erected on the plaintiff’s land.
The Defendant in paragraph 5 of the statement of defence, at page 6 of the Record, denies paragraphs 7 and 8 of the statement of claim, and joins issues thereto by averring “that the gate which the defendant erected was on the defendant’s land.” But on the mediation or custom any arbitration of “some natives of Rumuokwurusi” over the issue, who ordered the Defendant to remove the offensive gate, the Defendant fails to join issues property. He merely tersely denies the allegation and “puts the Defendant to the strictest proof thereto.” For the Defendant/Appellant, therefore, to say that the Plaintiff/Respondent, or any other party for that matter’ did not plead that the Plaintiff/Respondent “and his tenants pass through the land in dispute” is, to say the least, an attempt to forcefully parade and project his own delusion to a level of reality. It is an attempt to mislead. This issue is no doubt a perverted contrition or hallucination.
Issue ii, as it is in view of the printed record, is not only ludicrous, it is unrealistic. The issue is hereby resolved against the Appellant. The evidence on the right of way elicited from the DW.1, under cross examination, goes to issues duly pleaded.
Issues 1 and iii have been argued together. In nutshell, the question here is whether the Respondent, as the plaintiff, proved his case by credible evidence to warrant the judgment he got from the trial court? The Appellant, under these joint issues, has directed his energy and attack substantially at the learned trial Judge’s reliance on Exhibits ‘A’ and ‘B’ to give judgment to the Plaintiff/Respondent. In the attack Appellant submits, amongst others, that Exhibits A, and ‘B’, are unreliable; that PW.1 and DW.1 (i.e. the plaintiff and Defendant respectively) signed Exhibit ‘A’ as witnesses and that witnesses to conveyance do not create obligation. For this, MOBIL OIL NIG LTD V. NATIONAL OIL AND CHEMICAL MARKETING CO. LTD (2000) FWLR [Pt.24] 139 at 1395 is cited. Further on this Appellant submits that the usual column where the purchaser signs a deed of conveyance is blank in Exhibit ‘A’. Appellant further queries that Exhibit ‘A’ could not have been prepared by a lawyer on the grounds that both PW.1 and DW.1 deny that they know Ikechi Wagbara, the lawyer who allegedly prepared Exhibit ‘A’, and that Exhibit ‘A’ was not franked by the said Ikechi Wagbara.
The attack on Exhibit ‘A’, the sales agreement, was mostly directed at the form and not the substance of the document. The PW.2, a relation of the Appellant and a friend of the Respondent, testified, uncontradicted, that he was present when both parties executed the document Exhibit ‘A’ and that he also signed it as witness. Assuming that Exhibit A’, was not substantially in the form it should be in law, will equity not intervene in the circumstances? Equity follows the law. And it looks at the substance and not the form. Equity also acts in personam, and takes as done that which ought to have been done. The court of law and justice will therefore hold a party to his bargain where it is shown that the party executed a document, albeit wrongly as Appellant is suggesting, by which he has, upon material consideration received, divested himself of title in favour of another. The important questions are whether he infact signed the document?, and what was the intention? The evidence of the PW2, which was not discredited, is that the defendant signed Exhibit ‘A’ with intent that it be taken as evidence that he had sold his land, Ohia Otuloro Ahihia, to the Plaintiff/Respondent.
I agree with the Respondent, as submitted in his brief, that the major issue the Respondent as Plaintiff, was expected to prove was the purchase of the land in dispute from the Defendant/Appellant. To discharge this burden the Plaintiff pleaded and proved that he, being desirous of acquiring, the parcel of land in dispute from the Defendant out of his land, approached the owner, the Defendant, through Mohammed Agbolu (PW.2). The PW.2 confirmed this. His evidence on it was not discredited. PW.2, like PW.1, testified that the Defendant agreed to sell the land for the sum of N3,000.00; and that the said sum was paid in two instalments of N2,000.00 and N1,000.00. Exhibits ‘B’ and ‘C’ seem to be the receipts for these payments. The attack on Exhibit ‘B’ is largely on the ground that it was on the memo pad of the Plaintiff’s company and the PW.2 prepared it. Are these enough to make Exhibit ‘B’, therefore, unreliable? I do not think so. Appellant, because Exhibit ‘B’ was written on the memo pad of the Plaintiff’s company, submits that there was contradiction as to who prepared it, if the PW.2 said so. I see no such contradiction. There is, as submitted by the Respondent, a difference between the person who prepared a document and the paper the document was prepared on. The contents of a document speak for the document. The intent of the makers of the document is discovered from the document by its contents.
Appellant does not complain about Exhibit ‘C’. He seems to have nothing against it. His attack is directly largely against Exhibits ‘A’ and ‘B’. The bases of the attack include his denial that he ever made or signed them at any time. He alleged their forgery. I agree with the learned trial Judge, when he held at page 57 of the Record, that –
Forgery allegation in any matter whether criminal or civil is always regarded as a serious issue and the proof is one and the same. The proof as envisaged must be beyond reasonable doubt.
He further held that this allegation was neither pleaded nor proved as required by law. This finding, having not been contested or appealed, is binding on the Appellant. That is because there is a presumption that the Judge has rightly exercised his discretion: CHARLES OSENTON & CO. v. JOHNSON (1941) ALL ER 245 at 257.
Has the Plaintiff/Respondent not proved against the Defendant/Appellant his claim at the trial court even without Exhibits ‘A’ and ‘B’? It is not in dispute, as found by the trial court, that the parties know the disputed land and its extent. None of them doubted the area of land in dispute. Accordingly, as correctly found by the trial Judge, the fact that a wrong name was shown on the plan is immaterial since that has been corrected on the pleadings.
The trial court correctly found that the PW.2 is a relation of the Defendant/Appellant and that it was PW.2 who “brought the Defendant and the Plaintiff together” for this disputed transaction. The trial court therefore regarded PW.2 as a material witness. The Appellant has not satisfactorily shown that the oral evidence of the PW.2, which substantially corroborated the evidence of PW.1 is unreliable. Both PW.1 and PW.2 were rightly treated as reliable witnesses and that their evidence proved the disputed transaction. The totality of their oral evidence independently proved that the Defendant/Appellant sold the disputed parcel of land for N3,000.00 to the Plaintiff/Respondent and had since 1990 put the Plaintiff/Respondent in possession of the said parcel of land. In my judgment the opinion of the learned trial Judge, after examining the evidence of the parties, that upon his placing the evidence of PW.1 and PW .2, on one hand, side by side with the evidence of the DW.1 on an imaginary scale, the evidence of PW.1 and PW.2 are more preferable is reasonable. It accords with the principle in ODOFIN v. MOGAII (1978) NSCC 75. The attitude of the appellate court to findings of fact made by the trial court is that it will not interfere with such findings of fact unless the findings are perverse and/or unreasonable having regard to the printed evidence. See APE SALISU v. ODUMADE (2010) 41.2 NSCOR 729.
The business of the appellate court is not to reopen the matter and start trying it as it were de-novo. Its proper function is merely to oversee and review the way the dispute and issues arising therefrom were tried to see whether the trial court used the correct procedure and/or whether it arrived at the right and proper decision: CHUKWUOCHA v. ONUOHA (1991) 4 NWLR 234 at 241; OBODO v. OGBA (1987) 2 NWLR (Pt.54) 10.
Having read the Record of appeal viz -a-viz the briefs exchanged I have no doubt in me that the trial court made proper decision in law in this matter. The Plaintiff/Respondent proved his case and he richly deserved the judgment. Accordingly, issues I and iii are hereby resolved against the Appellant. Let it be noted that Exhibits ‘A’ and ‘B’ that the Appellant made so much ado about were merely sighted and identified by the Plaintiff in his evidence-in-chief. It was the defence that put them in evidence. It appears therefore that the strategy the Plaintiff was to rely strongly on the oral evidence of PW.1 and PW.2 to prove the pleadings in the statement of claim. The defence is estopped from criticizing the exhibits he had consciously put in evidence himself, which evidence ex facie speak against him.
Issue iv is whether the trial Judge was right in law to have struck out the counter-claim. Appellant submits that it was most inappropriate for the trial court to have struck out the counter-claim. That the Plaintiff in paragraph 5 of the statement of claim having admitted that the disputed land originally belonged to the Defendant has the burden of proving that the said original owner, the Defendant, had divested himself of his title in favour of the plaintiff in view of MAKANJUOLA v. AJILORE (2000) FWLR (Pt.8) 1328. And that the Plaintiff/Respondent, in this case, failed to discharge the onus of proof.
As I held earlier, the learned trial Judge considered the evidence of the PW.2 to be material. He held that the plaintiff through PW.1 and PW.2 had proved that the Defendant, counter-claimant, had sold the disputed parcel of land to the Plaintiff/Respondent in consideration of N3,000.00 paid by the Plaintiff in two instalments to the Defendant. The PW.2, a relation of the Defendant, was very instrumental to the transaction. He was a material witness to be called and he was called. His evidence, like the evidence of PW.1, on the transaction was not discredited. The trial court believed both PW.1 and PW.2 that the Defendant, the original owner of the parcel of land, OHIA OTULORO AHIHIA, had sold same and divested himself of any title he had over the land since 1990. The trial court at pages 51 and 55 of the record found that the Defendant’s conduct since 1990, for allowing the Plaintiff and his tenants to freely use the land in dispute for over 9 years without complaint is an admission of the transaction alleged by PW.1 and corroborated by PW.2.
In addition, the Plaintiff pleaded in paragraph 9 of the statement of claim that he reported the Defendant to the elders of Rumuokwurushi for fencing and putting a gate on the disputed land, and that the elders and chiefs who mediated directed the Defendant to remove the gate. Exhibit ‘D’ was produced to establish the mediation. The PW.1’s testimony on this, found at pages 13, 14 and 15 of the Record was not discredited. The evidence of the PW.2 on this at pages 17 and 18 of the Record was also not discredited. It was very damaging to the defence. It reads –
The Chiefs invited me. I told them that the Plaintiff bought the land used as access road from the Defendant and I witnessed for both of them. After one week, the Defendant came to my house and told me that if any where he goes with the Plaintiff and I happen to go and bear witness against him, he will kill me. I should bear in mind that I am the only son of my mother. I then called all the elders in the family and told them of what the Defendant told me.
It does not, therefore, lie in the mouth of the Appellant to say that the Plaintiff did not lead evidence to show that the Defendant/Appellant, the original owner of the disputed piece of land, OHIO OTULORO AHIHIA, had divested himself, in favour of the Plaintiff, of the title over the disputed land. He pleaded the facts and led evidence to show that.
The issue in the counter-claim is whether the Defendant had sold the disputed land and divested himself of his title over the same. The onus was on the Defendant to show that he had not sold the land. He failed to discharge the onus. The plaintiff, on the other hand had put in credible evidence showing that the Defendant had sold the land.
The learned trial Judge was right in holding that the counter-claim was not proved. I however, do not agree with him that the defendant did not adduce any evidence on his counter-claim. He did at page 25 of the Record. He was cross-examined on the evidence at pages 26-27 of Record. The evidence was both defence evidence and evidence to prove the counter-claim. The trial court did not believe the evidence. It preferred the evidence of PW.1 and PW.2 to the defence (DW.1) evidence.
Even if the Defendant had abandoned the counter-claim by not adducing any evidence on it, the appropriate order to make is not one striking out the counter-claim, but an order dismissing it. I make the order accordingly. Issue IV therefore succeeds in part but only as to the appropriate consequential order to make. There is no substance in the counter-claim.
On the whole, the appeal lacks substance. It is hereby dismissed. The judgment in the Suit No PHC/405/2001 at the High Court of Rivers state delivered on 25th October, 2004, including the consequential orders therein, is hereby affirmed. Costs assessed at N60,000.00 are hereby awarded to the Plaintiff/Respondent against the Defendant/Appellant.
M. DATTIJO MUHAMMAD J.C.A.: I have read in advance the lead judgment of my learned brother Eko JCA and I agree entirely with him that the appeal lacks merit. I have nothing useful to add to the judgment which I hereby rely on as mine to dismiss the appeal.
I abide by the consequential orders made in the judgment including those on costs.
T.O. AWOTOYE, J.C.A.: I have had the advantage of reading in draft of the judgment prepared by my learned brother EJEMBI EKO JCA, I agree entirely with the judgment. I have nothing to add.
I fully agree with the reasoning and conclusions reached by him.
I abide by the consequential orders and costs as assessed in the said judgment.
Appearances
S.W. Okah Esq; (Briefs were settled by Wome Moses Esq.)For Appellant
AND
S.J Efik Esq;For Respondent
