MR. OSAKPAMWAN ENOBORE ERIYO & ORS v. MRS. SEKIRA AKPATA & ORS
(2012)LCN/5821(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2012
CA/B/165/2008
RATIO
EVIDENCE: EFFECT OF WHAT IS ADMITTED
what is admitted needs no further proof.
See SALAWU v. YESUFU (2007) 12 NWLR (PT. 1049) 707 at 776. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D). J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1) MR. OSAKPAMWAN ENOBORE ERIYO
(AKA NO MOLEST)
2) MR. ODUOLA BALOGUN
3) MRS. CAROLINE ERIYO Appellant(s)
CHIOMA EGONDU NWOSU-IHEME (Ph. D). J.C.A.(Delivering the Leading Judgment): The property in dispute at the lower court from which the present appeal arose was No. 4 Lagos Street, Benin City. That property was said to have been owned by one Latunji Balogun who died in 1958 and who was the father of the Respondents and the 2nd Appellant in this appeal.
Following the sale of the property to the 3rd Appellant by the 2nd Appellant and subsequent destruction of same by 1st Appellant and some unnamed and unknown persons, the Respondents (as Plaintiffs) commenced an action at the High Court of Benin Judicial Division against the Appellants (as Defendants) and in their amended statement of claim formulated their claims in the following terms:
“(1) A DECLARATION that the parcel of land measuring 50 feet by 100 feet where house No. 4, Lagos Street, Benin City was built is the bonafide property of the Plaintiffs, having validly inherited same from their late mother who died intestate in 1993.
(2) A DECLARATION that the action of the Defendants by demolishing the house of the Plaintiffs while still in occupation with bulldozer and with hired thugs is illegal, unconstitutional and void.
(3) A DECLARATION that the purported sale of house No. 4, Lagos Street, Benin City to the 3rd Defendant by the 2nd Defendant is illegal, unlawful and void and of no effect.
(4) AN ORDER of perpetual injunction restraining the Defendants, their agents, servants, privies and assigns from further carrying out any construction work or carrying out any further building operation/development on the land of the Plaintiffs at No. 4, Lagos Street, Benin City.”
The 3rd Appellant (as 3rd Defendant) counter-claimed as follows:
“(a) A declaration that she is the one entitled to statutory right of occupancy in respect of all that property known as and situate at No. 4, Lagos Street, Benin City which property is verged red in litigation survey plan No. [SO/ED/D44/2005 dated 25th October, 2005 drawn by Surv. F.U. Iyawe, Registered Surveyor and filed in this action.
(b) An order that the 3rd Defendant is the one that is entitled to possession of the said property.”
Pleadings were duly filed and exchanged and the matter went for trial at the end of which, in a considered judgment, the trial court allowed the claims of the Respondents and dismissed the counter-claims of the Appellants. The present appeal is against that judgment.
Six (6) Grounds of Appeal were filed which are herein set out without their particulars. They read:
“(1) The learned trial Judge erred in law when he admitted inadmissible evidence exhibit L.
(2) The learned trial Judge erred in law when he failed and or refused to pronounce on the issues canvassed before him.
(3)The learned trial Judge erred in law and on the facts when he expunged exhibit H from the record on the ground it was not stamped and registered.
(4) The learned trial Judge erred in law and misdirected himself on the facts when he failed and or refused to pronounce on the root of title as the WILL pleaded by the Plaintiffs/Respondents which failure has occasioned a serious miscarriage of justice.
(5) The learned trial Judge erred in law and on facts when he held that the Plaintiffs proved their case by evidence of long possession.
(6) Judgment is against weight of evidence.”
Five (5) issues were formulated by the Appellants as arising for determination from the aforementioned grounds of appeal and the Respondents appear to have followed those issues in their response to the Appellants’ brief although with slight modifications. Those issues are also set out herein as follows:
“(1) Whether the Respondents having failed to lead evidence in support of their pleadings with regards to their root of title, the WILL, the act of possession can confer ownership on them and therefore entitled to judgment.
(2) Whether the learned trial Judge was right in admitting inadmissible evidence and making use of the inadmissible evidence, exhibit L in his judgment against the Appellants.
(3) Whether the learned trial Judge was right in expunging exhibit ‘H’.
(4) Whether the learned trial Judge was right in not pronouncing on the issues canvassed before him.
(5)Whether the Respondents proved their claim on the balance of probability to warrant the judgment of the trial court.
On issue No. 1, the learned Senior Advocate for the Appellants, Chief Egbobamien, contended in his brief that the Respondents having pleaded a WILL in paragraph 4, 7, 8 and 9 of their amended Statement of Claim at page 11 of the Record of Appeal as their root of title but failed to lead evidence and tender same, they had failed to establish their root of title and therefore, were bound to fail in the action. In the premise, he argued, the learned trial Judge was in error to have entered Judgment on the basis of acts of long possession.
In his reply on this issue, learned counsel for the Respondents, Mr. Afolabi, in his Brief of Argument, submitted that the pleading of the Respondents relating to the WILL and the inheritance of the land in dispute by the mother of the Respondents therefrom were admitted by the Appellants in their amended Statement of Defence. What is admitted needed no further proof, counsel argued. Besides, he further argued, the Respondents also founded their case on long possession and various acts of ownership and possession which the trial court held were established by evidence.
The case of the Respondents in their pleadings and evidence at the lower court was that their mother got the land in dispute following a WILL made by her father who was also the father of the 2nd Appellant. Upon the death of their mother’s father, their mother went into the land in dispute and remained in exclusive possession thereof from 1958 until her own death in 1993. After the burial of their mother in 1993, they succeeded her on the property and continued in possession thereof from then until the property was destroyed by the Appellants in 2004.
The case of the Appellants was that a gift intervivos of the property in dispute was made to the 2nd Appellant by his father, Balogun, during the latter’s life time and that the 2nd Appellant later sold the property to the 3rd Appellant following which the 1st Appellant, the son of the 3rd Appellant destroyed the property for the erection of a new building thereon.
In resolving this issue one way or the other, reference must be made to the relevant pleading of the parties in relation thereto. In this regard, paragraphs 5,6 and 7 of the Respondents’ amended Statement of Claim and paragraph 3 of the Appellants further amended Statement of Defence are relevant. In paragraphs 5, 6 and 7 of the amended Statement of Claim, the Respondents pleaded thus:
“(5) The Plaintiffs aver that the late Latunji Balogun the father of Late Mrs. Fatumo Toyaki, was survived by 5 children made up of 2 males and 3 females with 3 of the five children now surviving.
(6)The Plaintiffs aver that at his death, Late Latunji Balogun had houses and a Cocoa and Kola Nut farm to wit: No. 4, Lagos Street.
Benin City, a house at Abudu, a house at Ibadan where he was buried and a house at Ighatoro in Owo, Ondo State.
(7)The Plaintiffs aver that after the successful burial of Late Mr. Latunji Balogun according to Moslem rites, his WILL was executed wherein their mother. Late Mrs. Fatumo Toyaki inherited the house at No. 4, Lagos Street, Benin City, while the other surviving children also got their share.”
(Underlining supplied)
The reaction of the Appellants i.e. their reply to the foregoing clear, succinct and positive pleadings of the Respondents was contained in paragraph 3 of their further amended Statement of Defence wherein they pleaded as follows:
“(3) The defendants admit paragraphs 1, 2, 5, 6, 7, 23 and 24 of the amended Statement of claim.”
(Underlining supplied)
In other words, the Appellants not only admitted the WILL and its execution, they also admitted that Late Mrs. Fatumo Fayaki inherited the house at No. 4, Lagos Street, Benin City as her share of her Late father’s estate and that Balogun’s other surviving children including the 2nd Appellant got their own share of those estate. Therefore, having admitted that Respondents’ mother inherited No. 4 Lagos Street. Benin City while other surviving children also got their share, that was the end of the matter on the point as what is admitted needs no further proof.
See SALAWU v. YESUFU (2007) 12 NWLR (PT. 1049) 707 at 776.
With this fatal admission, the Respondents were not bound to go further yet apart from their pleading that was admitted, they went further to give evidence of abundant acts of their ownership and possession of the land in dispute stretching from their late mother to them over a long period of time which the learned trial Judge accepted before finding as he did at pages 116 – 117 of the Records that the Respondents’ grand father “died in 1957 or 1958 and their mother lived, exercised and enjoyed possession of the property from then till 1993. That is for about 35 or 36 years, there is nothing to indicate that the 2nd Defendant did anything to assert his right over the property for more than three decades after the death of his father when Plaintiffs’ mother was still alive. There is further evidence that the Plaintiffs’ mother was buried in the land and 2nd Defendant did nothing to raise an objection never (sic) that act of burial. The Plaintiffs’ mother and the Plaintiffs collected rents from the property after the death of their mother. Again the 2nd Defendant did practically nothing by way of objection or asserting his right over the property. Exhibit A shows the document evidencing revenue collected to effect the burial of the Plaintiffs’ mother and Exhibit D shows the various receipts paid to the plaintiff.”
I must however, say that the Appellants having admitted that the Respondents’ mother inherited the land in dispute as shown in paragraph 7 of their further amended Statement of Defence and with the abundant evidence of acts of ownership and possession of the land in dispute by the Respondents and before their mother, the necessity for tendering the WILL was obviated and therefore, the learned trial Judge was quite right in his finding that even though the WILL was not tendered
“… proof by document of title is just one of the ways to prove ownership of title to land…”
and further holding that
“The Plaintiffs have shown undeniable acts of ownership and possession traceable to their mother and thereafter which has extended over a sufficient length of time numerous and positive to warrant the interference of exclusive ownership of the property in dispute”
and concluded that
“Plaintiffs have in my view established better title to the land …”
It is for the foregoing reasons that I agree with the submissions of the learned counsel for the Respondents that this issue ought to be resolved against the Appellants and it is hereby so resolved against the Appellants in favour of the Respondents. Grounds 4 and 5 of the Grounds of Appeal, therefore fail.
Let me next take Issues 2 and 3 together. Those issues complain of the use of Exhibit L considered by Appellants as inadmissible and Exhibit H which was expunged by the lower court.
In summary, the argument of the learned Senior Advocate for the Appellants in relation to Exhibit L raised in Issue No. 2 was that Exhibit L was not pleaded by the Respondents yet the learned trial Judge held that it was pleaded in paragraph 23 of the amended Statement of Claim and proceeded to rely on it in discrediting the evidence of 2nd Appellant in his Judgment. In relation to Exhibit H on Issue 3, counsel argued that by virtue of Section 123 of the Evidence Act the lower court ought to have presumed that Exhibit H was authentic having been in existence for 54 years and retained it as properly admitted in evidence instead of expunging it.
On his part on these two Issues, learned counsel for the Respondents argued that Exhibit L was pleaded in paragraph 23 of the amended Statement of Claim and that by paragraph 3 of the further amended Statement of Defence, the Appellants admitted paragraph 23 which pleaded Exhibit L. It was, therefore, his submission that the lower court was right in relying on it to discredit the testimony of the 2nd Appellant.
On Exhibit H, learned Respondents’ counsel argued that Exhibit H was inadmissible because being a document transferring interest in land it ought to have been registered which it was not.
The learned trial Judge admitted Exhibit L on the basis of the pleading in paragraph 23 of the amended Statement of Claim. That paragraph reads:
“(29) The Plaintiffs state that the 2nd Defendant filed a Suit in Suit No. 8/96/97 wherein he sued Mr. Sule Toyaki and Dada Toyaki (now late and father of the Plaintiff) and he also filed a motion for receivership but the said motion was dismissed and the Plaintiffs will rely on the said ruling at the trial of this Suit.”
In his treatment of Exhibit L, the learned trial Judge (at page 123 of the records) referred to Order 8 Rule 3 of the Rules of Court which enjoined that motions shall be supported by the affidavits duly filed and therefore relied on Exhibit L which is the affidavit supporting the motion pleaded in paragraph 23 of the amended Statement of Claim particularly paragraph 6 thereof in discrediting the evidence of 2nd Appellant in court. I am of the strong but humble view that the Appellants’ counsel quarrel with the learned trial Judge’s handling of Exhibit L is completely misplaced. Exhibit L was the affidavit accompanying the motion for receivership pleaded in paragraph 23 of the amended Statement of Claim.
Having pleaded the motion, that pleading included the affidavit and every other document accompanying it and the motion and its accompanying affidavit Exhibit L, were therefore properly received in evidence and was rightly used by the learned trial Judge and if he found anything therein which contradicted the evidence of 2nd Appellant in court, as he did, he was right to use it to discredit 2nd Appellant in his Judgment. The argument that the affidavit offended the Illiterate Persons Protection Law is non sequitor because that law is for the protection of an illiterate. So if the 2nd Appellant felt able to use it in Suit No. 8/96/97 which he himself filed without minding his protection, why should the Respondents not use it in their own Suit if they find it useful. Besides, there was no evidence at the lower court that the 2nd Appellant was illiterate as a thumb impression without more is not conclusive evidence of illiteracy.
On Exhibit H, the learned trial Judge was of the view that it was a registerable instrument and having not been registered it ought not to have been admitted. Now how was Exhibit H pleaded? Paragraphs 5 and 8 of the further amended Statement of Defence became relevant. Paragraphs 5 pleaded a transfer of the property in dispute to the 2nd Appellant simpliciter. It was never pleaded that the transfer was under native law and custom so as to render any memorandum in respect thereof unregistrable.
Again paragraph 8 pleaded that the property was assigned to the 2nd Appellant in 1954. It did not also plead that such an assignment was made under native law and custom so as to make registration unnecessary. In the absence of any plea that the transaction was made under native law and custom, it was not open to the learned Senior Advocate for the Appellants to agree that Exhibit H was not registerable. The learned trial Judge was therefore right to hold that Exhibit H having not been registered ought to be expunged and expunging same. The 2nd and 3rd Issues are therefore resolved against the Appellants and in favour of the Respondents. Grounds 1 and 3 to which the issues relate fail.
On Issue No. 4, learned counsel for the Appellants contended that the learned trial Judge failed to pronounce on some of the issues before him notably the sharing of the estates of Balogun at his death and burial, and locus standi of the Respondents, estoppel and standing by. In his reply, learned counsel for the Respondents argued that the trial court made detached pronouncements on all issues before it.
I must say at once that the learned Senior Advocate for the Appellants (Defendants at the lower court) raised two issues for the determination of the lower court at page 64 of the records. These issues were:
“(1) Having regard to the evidence before the court, whether Plaintiffs are entitled to their claim and whether the 2nd Defendant is entitled to her counter-claim.
(2) By virtue of Exhibit C whether the action of the Plaintiffs is not statute barred.”
It was on the basis of these two Issues that defence counsel (now Appellants) proceeded to address the lower court at pages 64 – 71 of the Records.
The learned trial Judge in his Judgment at page 107 stated inter alia as follows:
“I hereby for the purpose of this judgment adopt the issues for determination framed by the learned Senior Advocate.”
The Judge then proceeded to examine the issues so formulated by the defence (Appellants’) counsel in his Judgment from pages 108 – 125 of the Record giving detailed and painstaking analysis and evaluation of the evidence led, the applicable law on all the aforesaid issues and a reasoned conclusion relating to the property in dispute. His Judgment cannot be faulted on this point. Accordingly, Issue No. 4 is also resolved against the Appellants in favour of the Respondents and Ground 2 on which it is based fails.
On Issue No 5, learned counsel for the Appellants repeated his argument on the WILL and other aspects of the case and submitted that on the totality of the evidence led, the trial Judge ought to have dismissed the Respondents’ case and entered Judgment for the 3rd Appellant in her counter-claim. On this point learned Respondents’ counsel contended that the trial Judge carefully considered the evidence before him and rightly reached the decision in entering Judgment for the Respondents in their claims and dismissing the counter claim of the 3rd Appellant.
I have already examined the various other issues raised in this appeal in relation to the Judgment of the lower court. I have also read with considerable attention and concentration the evidence led by the parties in this case and examined the Judgment of the lower court in relation to the evidence adduced before it and that court’s evaluation of same and findings made thereon and I am satisfied that the learned trial Judge carefully and in a painstaking manner reviewed, considered and properly evaluated the evidence adduced by both parties and made good findings of fact as required by the principle of the decision in MOGAJI V. ODOFIN (1978) 4 SC, 91 at 94 95 before reaching its decision that the Respondents were entitled to its Judgment as against the Appellants.
Accordingly, this issue is again resolved against the Appellants and in favour of the Respondents. Ground 6 of the Grounds of Appeal based on it similarly fails.
In the final result, all the Grounds of Appeal having failed following the resolution of all the issues in the appeal against the Appellants, the appeal itself fails in its entirety and is hereby dismissed. I award N30, 000 costs against the Appellants.
R.C. AGBO, J.C.A.: I agree.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Nwosu-Iheme, JCA. I agree that this appeal lacks merit and is dismissed accordingly.
Appearances
CHIEF A.O. EGHOBAMIEN SAA, for the Appellants with him are C.A.
ERAHON and A.A. EMWANTA.For Appellant
AND
MRS U. UWUMAROGIEFor Respondent
