MR. ESSIEN JACOB UKO v. THE LIQUIDATOR, UTUK CONSTRUCTION AND MARKETING COMPANY LIMITED IN LIQUIDATION & ORS.
(2011)LCN/4611(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of June, 2011
CA/C/165/2010
RATIO
INCONSISTENT POSITION OF PARTY IN A CASE: WHETHER A PARTY IS PERMITTED TO TAKE INCONSISTENT POSITIONS IN A CASE
I agree with the submissions of learned counsel for the Respondents that a party is not permitted to take inconsistent positions in a case. See AJIDE v. KELANI (1985) 3 NWLR (Pt.12) 269. PER KUMAI BAYANG AKAAHS, J.C.A.
RELIEF: WHETHER A COURT CAN GRANT TO A PARTY LESS THAN WHAT HE CLAIMED
I also accept the argument of leaned counsel that there is nothing wrong in law for a court to grant to a party less than what he claimed but definitely not more than what he is entitled to and what is proved at the trial: See OGUNYADE v. OSHUNKEYE (2007) 15 NWLR (Pt. 1057) 218; ATIVIE v. KABEL METAL (NIG) LTD. (2008) 10 NWLR (Pt. 1095) 399. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
MR. ESSIEN JACOB UKO – Appellant(s)
AND
1. THE LIQUIDATOR, UTUK CONSTRUCTION AND MARKETING COMPANY LIMITED IN LIQUIDATION (THE DEPUTY CHIEF REGISTRAR, FEDERAL HIGH COURT OF NIGERIA
2. MR. JOSEPH ASUQUO EBONG
3. MR. EZEKIEL ASUQUO EBONG
4. MR. VICTOR UTUK
5. MR. INI UTUK – Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment in Suit No. FHC/UY/CS/19/2009 and FHC/UY/CS/58/2009 which were consolidated and judgment delivered on 12th day of July, 2010. The Appellant herein commenced suit No. FHC/UY/CS/19/2009 by Motion on Notice before the Federal High court, Uyo seeking an order of the court granting possession to the property known as No. 43 Oron Road, Uyo. The suit was initiated against the Liquidator of Utuk’s Construction and Marketing Company Limited, the Deputy Chief Registrar of the Federal High Court, Calabar who sold the property to the Appellant. Subsequently and by the order of the court below made on 26th October, 2009 the motion on Notice and all other processes of court in suit No. FHC/UY/CS/19/2009 were pasted on the walls of the uncompleted storey building which forms part of what is known as No. 49 Oron Road, Uyo. This led Mr. Joseph Asuquo Ebong and Mr. Ezekiel Asuquo Ebong to apply to the court below to be joined as respondents which was granted on 3rd December, 2009. They also instituted suit No. FHC/UY/CS/58/2009 against the appellant and three others seeking reliefs and orders in respect of the said property. Subsequently the respondents filed a counter-affidavit and argument against the order for grant of possession of No. 43 Oron Road, Uyo to the Appellant. When the appellant was served with the writ of summons, statement of claim and witness deposition in respect of suit No. FHC/UY/CS/58/2009, he filed a preliminary objection against the suit. The learned trial judge thereafter ordered the consolidation of suit No. FHC/UY/CS/19/2009 and FHC/UY/CS/58/2009 and arguments were taken in respect of the application to vest possession of No. 43 Oron Road, Uyo on the Appellant and the preliminary objection to suit No. FHC/UY/CS/58/2009. On 12th July, 2010 the learned trial judge upheld the preliminary objection and dismissed suit No. FHC/UY/CS/58/2009 and granted the appellant possession of “the uncompleted storey building lying and situate at No. 43 Oron Road Uyo.” The appellant was dissatisfied with the grant hence his appeal dated 3rd August, 2010.
On 31/1/2011 the Notice of Appeal was amended, Originally there were five respondents and learned Senior Counsel applied orally to strike out the names of the 1st, 4th and 5th Respondents from the appeal, leaving the 2nd and 3rd respondents. The Amended Notice and Briefs reflected the discontinuance of the appeal against the 1st, 4th and 5th respondents; hence the 2nd and 3rd respondents became 1st and 2nd respondents.
The Appellant formulated a lone issue from the Amended Notice and grounds of appeal which is:
Whether the lower court was not duty bound to grant the appellant the relief sought and proved.
Although the respondents filed their brief on 18/2/2011 after the Appellant had filed his amended brief on 11/1/2011 which was deemed filed on 31/1/2011, they still left the position of the respondents intact hence the respondents’ brief is headed “2nd and 3rd Respondents’ consequential Amended Brief.” They merely replicated the Brief which was earlier filed on 2/11/2010. In the supposedly amended brief the respondents raised one issue for determination as follows:
Whether or not the learned trial Judge was right in granting possession of “the uncompleted storey building lying and situate at No. 43 Oron Road, Uyo, Akwa Ibom State against the respondents” to the Appellant.
In his brief, Mr. Agi, learned senior counsel for the appellant referred to the order of the learned trial Judge on the ex-parte application of the appellant for leave to commence the action wherein he granted the prayer on the following terms:
“IT IS HEREBY ORDERED AS FOLLOWS:-
That leave be and is hereby granted the Applicant in this suit to commence all action or proceedings against the respondent herein over the property known as No. 43, Oron Road, Uyo, is granted…”
He said that when leave was granted the appellant filed his action on 16th July, 2009 and in support of his application he exhibited documents marked Exhibits ‘A’-‘G’ to prove his claim so as to be granted possession. After the respondents were joined and they put up their case, the lower court refused their argument and granted the appellant a relief different from what was proved and claimed by differentiating the buildings on the property and awarding what it called uncompleted storey building to the appellant. He submitted that having found that the property known as No. 43 Oron Road, Uyo belonged to the appellant, the doctrine of ‘Quid quid Plantatur solo solo cedit ‘should have guided the lower court in granting the relief as claimed. He relied on the dictum of Onnoghen, JSC, in ATIVIE v. KABEL METAL (NIG) LTD. (2008) 10 NWLR (Pt. 1095) 399 at 422 where he said:
“Legal practice is a science based on precise use of words that is why a Lawyer is always careful in the art of choice and use of words in conveying what his complaint(s) is (are) and in formulating the reliefs he seeks from the court. Where a party seeks a particular relief from the court, the court is duty bound, where he established the right to it, to award same to him”.
He contended that the lower court having found that “the Respondents’ affidavit does not show the truth in this their fibble (sic) and lame attempt at opposing the grant of the relief as claimed by the Applicant”, ought not to turn around to grant a relief different from what was claimed and the decision has occasioned a miscarriage of justice with regard to the claim of the appellant particularly when juxtaposed with the Federal High Court order winding up Utuk Construction and Marketing Company Limited wherein No. 43, Oron Road was specifically stated. He said from the totality of the evidence before the lower court, the appropriate order should have been the granting of the relief as claimed by the Appellant and not otherwise and since the evidence adduced was based on affidavit and documentary evidence, the appellate court is empowered to make the appropriate findings. He therefore urges this court to set aside the finding of the lower court and make the appropriate one to avoid a miscarriage of justice.
In reply, Mr. Ekanem, learned counsel for the Respondents submitted that the learned trial Judge acted rightly and in accordance with the evidence in making the order granting possession of the storey building only at No. 43 Oron Rd., Uyo, to the Appellant. He referred to the Notice of Auction at page 269 of the record published in the pioneer Newspaper of Monday, 8th July, 1996 which was attached with other documents in the affidavit of the Appellant in support of the Notice of Preliminary Objection to Suit No. FHC/UY/CS/58/2009 and paragraph 8 of the affidavit in support of the Motion ex-parte for leave to commence suit No. FHC/UY/CS/19/2009 and submitted by relying on NITEL LTD. v IKPI (2007) 8 NWLR (Pt. 1035) 96 and AJIDE v. KELANI (1985) 3 NWLR (Pt. 12) 269 that parties are bound by their pleadings and a party will not be permitted to take inconsistent positions in a case. He urged this court to take note of the fact of all the documents relied upon by the appellant to support his claim to the ownership of No. 43 Oron Road, Uyo, none clearly defines the property referred to as No. 43, Oron Rd., Uyo, which was sold to the appellant. It is only the Notice of Auction that clearly describes what property was available for sale by auction at No. 43 Oron Rd., Uyo, which described the property as an “uncompleted storey building with an area of 330.78 square meters and all buyers of No. 43, Oron Rd., Uyo and the auctioneers are bound by this description and can only buy and sell what is offered for sale and no more. The claim by the appellant that he purchased the property at No. 43 Oron Rd., Uyo after reading the notice of auction in the Notice Board of the Federal High Court, Calabar does not invalidate the Notice of Auction referred to at page 269 of the Records. Learned counsel further submitted that the appellant has not denied that the auction notice in the Pioneer Newspaper was published on the authority of the Liquidator, neither did he exhibit the auction notice he read on the Notice Board of the Federal High Court, Calabar, to show that the description of the property for sale at No. 43, Oron Rd., Uyo, was different from that published in the Pioneer Newspaper. In the result, the lower court could grant to a party less than what he claimed but definitely not more than what he is entitled to.
I find much force in the arguments of learned counsel for the respondents. In paragraph 8 of the affidavit in support of the ex-parte Motion for leave to commence an action or proceedings against the respondent (i.e. the Liquidator, Utuks Construction and Marketing Company Limited in Liquidation (The Deputy Chief Registrar, Federal High Court of Nigeria) the appellant deposed to the following facts:
“8. That the property No. 43, Oron Road, Uyo, which I purchased from the Respondent, is an uncompleted building.”
By this deposition the appellant was never in doubt as to the property he purchased and notwithstanding the ex-parte order which vested on the Liquidator the properties of Utuks Construction & Marketing Company Limited that included No. 43, Oron Rd., Uyo, the Notice of Auction published in the Pioneer Newspaper of Monday July 8th, 1996 stated as follows:
“On the instructions of the Liquidators of Utuks Group of Companies, the under-mentioned landed properties will be sold by Public Auction on Thursday 11th July, 1996 at 9.00 am:
1…
2…
3…
4. No.43 Oron Rd., Uyo,- uncompleted storyed building with an area of 330.78 sq. metres.”
Although the receipt of payment of N310,000 made on 28/8/97 was said to be in respect of No. 43, Oron Road, Uyo, there is nothing to suggest that the auction notice which had been published a year earlier had been withdrawn or that the appellant negotiated to buy more than was described in the Auction Notice. The auction notice of Monday 8th July, 1996 was an offer made to the whole world which the appellant accepted. Since the appellant was aware of what he purchased and never mentioned anything about a bungalow behind the uncompleted building the doctrine of Quid quid Plantatur Solo Solo cedit cannot apply. The bungalow located on No. 43 Oron Rd., Uyo would be subject to the doctrine if it was built after the appellant had paid for the property and it was within the 330.78 sq. metres of land sold to the appellant. The appellant did not allege trespass on the land sold to him; he only complained that when he hired some labourers to work for him they were chased away by some persons claiming to have interest in the property through the Respondent.
It does appear that No. 43 Oron Rd., Uyo, was not properly delineated by survey beacons which would have obviated any difficulty in describing the property and the proper thing to do is to demarcate the uncompleted building by reference to the land area it is supposed to cover. This is what the leaned trial Judge attempted to do in granting possession of the uncompleted storey building to the appellant.
I agree with the submissions of learned counsel for the Respondents that a party is not permitted to take inconsistent positions in a case. See AJIDE v. KELANI (1985) 3 NWLR (Pt.12) 269. I also accept the argument of leaned counsel that there is nothing wrong in law for a court to grant to a party less than what he claimed but definitely not more than what he is entitled to and what is proved at the trial: See OGUNYADE v. OSHUNKEYE (2007) 15 NWLR (Pt. 1057) 218; ATIVIE v. KABEL METAL (NIG) LTD. (2008) 10 NWLR (Pt. 1095) 399. The appellant unequivocally deposed to the fact that the property No. 43 Oron Rd., Uyo, which he purchased from the Respondent (Liquidator) was an uncompleted building and the Auction Notice described the property put up for sale at No. 43, Oron Rd., Uyo, as an uncompleted storey building with an area of 330.78 sq. metres. This is the evidence on which the learned trial Judge based his judgment granting possession of the property to the Appellant.
I find that there is no merit in the appeal and it is hereby dismissed with N30, 000.00 costs in favour of the Respondents.
JA’AFARU MIKA’ILU, J.C.A.: I agree with the reasons given and the conclusion reached in the lead judgment of my learned brother, Kumai Bayang Akaahs, JCA. I therefore agree that the appeal lacks merit and it is accordingly dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in a draft form, the lead judgment just delivered by my learned brother, Kumai Bayang Akaahs, JCA. His Lordship has succinctly and appropriately dealt with the sole issue canvassed by the learned counsel for the parties in this appeal. I agree with the reasoning and conclusion reached therein. I have nothing else to add, except to say that the appeal lacks merit and it is accordingly dismissed by me. I also abide by the order on costs.
Appearances
Joe Agi, SAN with Enya Agbomi, Emmanuel Sani and Udenyi OmajiFor Appellant
AND
Nyong NyongFor Respondent
