MR. SIKIRU ERINFOLAMI & ANOR v. MR. KELECHUKWU MBAGWU & ORS
(2018)LCN/12093(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of October, 2018
CA/L/194/2013
RATIO
CONTRACT: DOCTRINE OF PRIVITY OF CONTRACT
“Not being parties to the agreement which brought about the relationship between the Appellants and the 3rd Respondents, the 1st and 2nd Respondent are strangers to the contract between the parties and law is now common knowledge, that the rights and obligations incorporated into the terms of a valid contract freely agreed to and entered into by the parties can only be enforced by the contracting parties and not outsiders who are non parties to the contract even if the contract was made for their benefit by any of the parties. That is what has become known as the doctrine privity of contract which does not allow interference by non-parties to a contract with the agreement voluntarily and freely entered by other parties to provide for and govern a fudiciary relationship between them. J. E. Oshevire Limited v. Tripoli Motors (1997) 5 NWLR (503) 1, Savannah Bank, Plc v. Ibrahim (2000) 6 NWLR (662) 585,Nwokhoba v. Dumex Nigeria Limited (2004) 3 NWLR (861) 461, Borishade v. NBN Limited (2007) 1 NWLR (1015) 217, C.B. Limited v. Intercity Bank Plc (2009) 15 NWLR (1165) 445, UBN, Plc v. Soares (2012) 11 NWLR (1312) 550. ” PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: WHERE EVIDENCE REMAINS UNCHALLENGED AND UNCONTROVERTED
“The general principle of law is that unchallenged and uncontroverted evidence on material facts of a case would ordinarily be accepted and acted upon by the Court as sufficient proof of the facts in respect of which it was adduced. In the case of American Cynamid Co. Ltd v. Vitality Pharm. Ltd (1991) 2 SCNJ, 42 @ 50-1 and 53, the apex Court had stated that:- ‘where the evidence of a witness has not been challenged, controverted or shaken under cross examination and is not inadmissible in law, and the evidence is in line with the facts pleaded, the evidence must be accepted as the correct version of what he says.’ See also Omoregbe v. Lawani (1980) 3-4 SC, 108; Oforlete v. State (2000) 12 NWLR (681) 415 @ 436; Durosaro v. Ayorinde (2005) 3-4 SC, 14; Iyere v. B. F. & F. M. Ltd (2008) 12 MJSC, 102; Shell Petrol v. Edamkue (2009) 7 MJSC (Pt. 1) 194; Nasir v. C. S. C., Kano State (2010) 6 NWLR (1190) 253.” PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: WHERE EVIDENCE IS NOT SUPPORTED BY PARTIES
“The law is now settled, that any evidence adduced or elicited by a party which is not supported by or in line with facts contained in the pleadings of any of the parties, would go to no issue and is irrelevant for consideration in the case and therefore, inadmissible. In this regard, it is immaterial whether such evidence was given in examination-in-chief, cross-examination or re-examination so long as it is not on any material fact pleaded by the parties.
Evidence not supported by pleadings of the parties goes to no issue and cannot be acted upon or relied on by the Court as the basis for any decision. Nwarata v. Egboka (2006) ALLFWLR (338) 768, Lamurde Local Government v. Kaoka (2010) 10 NWLR (1203) 574. Awoyegbe v. Ogbeide (1988) 1 NWLR (1973) 695, Amobi v. Amobi (1996) 9-10 MAC, 101 @ 116, SPDCN v. Ambah (1999) 3 NWLR (593) 1 @ 14. Oladipo v. M.L.G.A. (2010) 5 NWLR (1186) 177.” PER MOHAMMED LAWAL GARBA, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
TOBI EBIOWEIJustice of The Court of Appeal of Nigeria
Between
1. MR. SIKIRU ERINFOLAMI
2. REV. OLUBUNMI AKINSOLA
(Trading under the name & style of Land Related Services)Appellant(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
The High Court of Lagos State, in a judgement delivered on the 24th October, 2012 in the Appellants’ Suit No. LD/613/09, dismissed their claims for declarations and injunction against the Respondents, in respect of plots of land situate at Pearl Gardens Estate, Sangotedo, Eti Osa Local Government Area, Lagos. The Appellants claimed that the said plots of land were allocated to them for services rendered to the owners; the Oyemade Royal Families, pursuant to an agreement between the parties.
Later, according to the Appellants, all the plots, including the ones allocated to them, were turned into the Pearl Gardens Estate by the 1st and 2nd Respondents who also purchased some plots of the land and demanded that the Appellants pay the sum of N1,500,000.00 in respect of their plots, as service charge for the provisions of infrastructure in the Estate. Dissatisfied with the dismissal of their claims, the Appellants brought this appeal vide the Notice of Appeal dated and filed on 8th January, 2013 on three (3) grounds from which three (3) issues were formulated in the Appellants’ brief filed on the 19th April, 2013 for determination in the appeal. They are:
“1.Whether the Learned Trial Judge was right in refusing reliefs 1 and 3 of the Appellants’ Statement of Claim (Ground 1)
2.Whether the Learned Trial Judge was right in refusing relief 2 of the Appellants’ Statement of Claim (Ground 2)
3. Whether the Learned Trial Judge was right in refusing reliefs 4, 5, 6 and 7 of the Appellants’ Statement of Claim (Ground 3)”.
In the 1st and 2nd Respondents’ brief filed on 28th February 2014, deemed on 16th March 2015, the issues for determination in the appeal are couched thus:
“(i) Whether the Appellants established that the 1st and 2nd Respondents gave the Appellants and those claiming through the Appellants directives to pay the sum of N1.5 million Naira for the provision of infrastructure. (This is distilled from ground 1)
(ii)Whether the Appellant proved that they had a better right to the plots in issue as against the 1st and 2nd Respondents. (This is distilled from ground 2).
(iii) Whether the Appellants were entitled to the equitable discretionary remedies of ‘specific performance’ as well as the various injunctive reliefs sought in the circumstances of this case. (This is distilled from ground 3).”
Although the 3rd and 4th Respondents were duly served with the processes of the appeal, there is no record that they filed any processes, appeared or were represented at the prosecution of the appeal.
Since the issues raised by the Appellants represent the precise complaints against the judgement by the High Court, I intend to use them in the determination of the appeal.
Issue 1
The arguments by the Appellants are that the High Court was wrong to have held that the Appellants failed to lead any evidence to show that a demand for the payment of the service charge was made to them by the 1st and 2nd Respondents. According to Counsel, the parties did not join issues on that fact for the burden of proof to arise for the Appellants to discharge, citing paragraphs 22-25 of the statement of claim and paragraph 1 of the 1st and 2nd Respondents statement of defence, which is said to be a general traverse that is not enough in law to controvert material and essential averments on the authority of, inter alia, Akintola v. Solano (1986) 2 NWLR (24) 598 @ 620.
In addition, Counsel submits that the Appellants’ only witness, CW1, gave evidence in support of the reliefs’ I and III claimed by them which was not controverted by the 1st and 2nd Respondents and so to be acted on by the High Court. Reliance was placed on, among other cases, M. W. T. Nig. Ltd. v. P. T. F. (2007) 15 NWLR (1058) 451 @ 475-6 for the submission and it is argued that the Appellants have no obligation to produce documentary proof of the demand for the payment of the service charge by the 1st and 2nd Respondents since they did not join issue on the fact, with the Appellants. Section 123 of the Evidence Act, 2011 and the case of Ononaku v. Akubue (2009) 15 NWLR (1165) 539 @ 5501 on the presumption of admission of facts in pleadings not controverted were cited and the Court is urged to resolve the issue in Appellants’ favour.
The 1st and 2nd Respondents’ submissions on the issue are that the Appellants did not appeal against the finding by the High Court that there was no evidence from the Appellants that the 1st and 2nd Respondents demanded for the payment of the service charge in question and the Court is estopped from considering the issue, unless the finding is reversed, on the authority of Mnge. Enterprises Ltd. v. Otusanya (1987) 2 NWLR (55) 179. In the alternative, it is contended that the 1st and 2nd Respondents, in addition to the general traverse, did specifically deny the averments in the Appellants? Statement of Claim and, relying on Ugochukwu v. Unipetrol Nig. Plc (2002) 3 SC, 80 @ 83, that even a general denial is effective to cast on the Appellants the burden of proof of the demand for the payment of the service charge. It is also the argument of the 1st and 2nd Respondents that since the reliefs sought on the alleged demand for the payment of the service charge are declaratory, they could not be granted on mere admission by them, but the Appellants have the burden of satisfying the High Court of their entitlement thereto, by credible evidence.Nwokidu v. Okaju (2010) 3 NWLR (1181) 319 @ 330, among other cases, was referred to and it is maintained that the High Court was right, on the totality of the evidence before it, that the Appellants did not establish their entitlement to the reliefs I and III.
In the Reply brief, it is pointed out by the learned Counsel for the Appellants that Ground 1 of the Notice of Appeal challenges the finding by the High Court that the Appellants did not prove the demand for payment of service charge made by the 1st and 2nd Respondents.
I should point out at the onset, that the submission by the Counsel for the 1st and 2nd Respondents that the Appellants did not appeal against the finding by the High Court that they did not prove that a demand for the payment of the service charge was made by the 1st and 2nd Respondents, is either a misconception or even a misapprehension of the complaint in the Ground 1 of the Appellants? Notice of Appeal. The ground and its particulars are as follows:-
GROUNDS 1
The learned trial judge erred in law when she refused reliefs 1 and 3 of the Appellants’ Claim as contained in the Appellants’ Writ of Summons, Statement of Claim and Written statement on oath.
PARTICULARS OF ERROR
(A) Since the 1st and 2nd Defendants did not specifically traverse the averment that the demand for the payment of N1,500, 000 as service charge for each of the Appellants’ twenty-six (26) plots was made, the unchallenged testimony of the Appellant’s witness in the Witness statement on oath which was adopted as evidence was sufficient to prove the Appellant’s assertion that such demand was made.
(b) The Appellants’ were not obliged on the pleadings to supply any written document to prove the assertion that such demand was made.
(c) The learned trial judge failed to consider other pieces of evidence which proved that such demand was made including but not limited to the Appellants? uncontradicted evidence that uniformed men and thugs were deployed by the 1st and 2nd Respondents to drive away the appellants and their agents from the land.
(d) Even if (which is not conceded) the Appellants did not establish that a demand was made the Court could still consider and grant the declaratory reliefs as the reliefs are not hinged on the fact that a demand needed be made?
Apparently, in both tenor and terms, the primary attack or complaint in the ground is against the finding and holding by the High Court in the judgement appealed aginst, that the Appellants did not establish the averments that the 1st and 2nd Respondents demanded for the payment of N1,500,000.00 by the Appellants as service charge in respect of the plots of land in question.
The arguments by the 1st and 2nd Respondents’ counsel and the case cited thereon do not merit further mention for being irrelevant.
By way of a general restatement of the law, it is now elementary that by dint of the statutory provisions in Sections 131 and 132 of the Evidence Act, 2011 (Section 135 and 136 of the 2004 Act) the initial burden of proof of any fact(s) upon which claims are made before the Courts of law in Nigeria, lies on the party who alleged the existence of such fact(s) as the person(s) who desire that a judgement be given as to any legal right or liability based on the fact(s) and who would fail if no evidence at all was given in the case.Ezemba v. Ibeneme (2004) 7SC (Pt. 1) 45; Buhari v. Obasanjo (2005) 7 SC (Pt.1) 1; Plateau State v. A. G. Federation (2006) ALLFWLR (305) 590; Adighije v. Nwaogu (2010) 12 NWLR (1209) 419; Torri v. National Park Serv. of Nig. (2011) 5-7 MJSC (Pt.1) 153; Iseogbekun v. Adelakun (2012) 2-4 MJSC, 46.
In cases tried by way of pleadings, material and vital facts pleaded and asserted by a party, except expressly or impliedly admitted, by virtue of Section 123 of Evidence Act, 2011, require to be proved by way of credible and sufficient evidence. This is because the facts in pleadings no matter how crafted, cogent and forceful they may appear, where effectively denied and specifically controverted by other pleadings, and thus disputed and contested, cannot prove themselves since they are mute and do not constitute evidence capable of proof. Ajikawo v. Ansaldo (1991) 2 NWLR (173) 359 @ 375; Jolayemi v. Olaoye (2004) 5 SC (Pt. II) 112; Ojoh v. Kamalu (2006) ALL FWLR (297) 978.
In the case of the Appellants, the averments in dispute on the issue of demand for the payment of service charge are in paragraphs 21-25 of their statement of claim dated the 17th April, 2009 which assert that: –
21.The claimants avers that sometime in year 2007, the 1st defendant said he wants to turn the plots of land into an estate to be known as Pearl Gardens Estate and the 2nd defendant will be the developer and the manager of the estate.
22.The claimants avers that the 1st & 2nd Defendants said every land owner on the Okunade and Banjoko family land must belong to the estate and must contribute the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) as service charge for the provision of infrastructure and must also execute an agreement with them.
23.The claimants avers that they immediately oppose this saying that they do not own their plots of land through the 1st & 2nd defendants and that the entire plots of land does not belong to the 1st & 2nd defendants.
24.The claimants avers that since then the defendants have deployed OPC and mobile police to the land with stern instruction that they should not allow claimants or anybody claiming through them access to the remaining twenty six (26) plots of land.
25.The Claimants avers that the 1st Defendant is determined to get rid of the Claimants from the land at all cost because the 1st Defendant knows that the Claimants knows everything about the land and about his plan to eventually take over the entire land from the Okunade and Banjoko families.
In reaction to the above averments, in paragraph 1 of the 1st and 2nd Statement of Defence dated 12th March 2010, it was averred that:-
“(1) The 1st & 2nd defendants deny the averments contained in paragraphs 1, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29 and 32 of the statement of claim and put the claimants to the strictest proof thereof.”
From the pleadings by the Appellants, the material facts asserted therein are that the 1st and 2nd Respondents said every land owner on the Pearl Garden Estate must belong to the Estate and contribute the sum of N1,500,000.00 for the provision of infrastructure and that they have been denied access to their plots of land in the Estate because they opposed the contribution.
The 1st and 2nd Respondents, on their part, by the pleading in paragraph (1), specifically denied the averments in paragraphs 21, 22, 23, 24 and 25 of the Appellants and put them to the strictest proof thereof.
The averment by the 1st and 2nd Respondents in paragraph (1) of the Statement of Defence is a specific denial of the facts asserted in each of the paragraphs of the Statement of Claim identified, named and particularly set out therein.
It is an effective denial of the facts averred in the specifically named paragraphs in respect of which the Appellants were put on the requirement of strictest proof, thereby challenged, disputed and put in contest, which casts the burden of proof on the Appellants.
The averment by the 1st and 2nd Respondents can only be said to be general because it is used to deny a number of specific paragraphs of the Appellants’ Statement of Claim, identified and set out individually therein, which denial is specific and effective in respect of each of such paragraphs. The averment is different, distinct and must not be confused with the general, obtuse, evasive, and vague averments such as ?the Defendant denies the averments in the Statement of Claim and would put the plaintiff to the strictest proof thereof or the Defendant is not in a position to admit or deny the averments in paragraphs X, Y, Z, etc.
As rightly stated by Counsel, the law is firmly established that for there to be an effective traverse and controversion of specific and material facts in pleadings, there must be specific, direct and frontal denial of the facts by the adverse party so as to put them in contention, dispute and in issue in the case.A. G. Anambra State v. C. N. Onuselogu Ent. Ltd. (1987) 11-12 SCNJ, 44; Adimora v. Ajufo (1988) 6 SCNJ, 18; Ezeokonkwo v. Okeke (1991) 2 NWLR (173) 331; CBN v. Dinneh (2010) 17 NWLR (121) 125, Ogunola v. Eiyekole (1990) 12 NSCC (Pt.3) 107.
In the above circumstances, it is not correct to argue that the Appellants’ averments in paragraphs 21-25 of the Statement of Claim were not effectively denied and controverted by the averment of the statement of defence of the 1st and 2nd Respondents so as to join issues thereon. There was effective and specific denial of the facts in the said averments giving rise to a dispute and joining of issues by the parties to call for proof by the Appellants.
Learned Counsel for the Appellants has argued that the Appellants? witness; CW1 gave unchallenged and uncontroverted evidence in support of the aforenamed averments and so the High Court ought to have acted on it. The relevant averments in the 1st Appellant’s (who was CW1 and only witness for the Appellants) Statement on Oath dated 17th April, 2009, which was adopted as the evidence in support and proof of the claims by the Appellants, are in paragraphs 21-24 and repetition of the averments in the Statement of Claim.
In the 26 paragraphs Statement on Oath dated the 17th March, 2010 by the only witness for the 1st and 2nd Respondents, there was no averment on the issue of demand for payment of service charge by the Appellants. Under cross-examination of CW1 by counsel for the 1st and 2nd Respondents, he stated on the issue, that ‘Yes the 1st -2nd demanded 1.5m verbally for each plot.’
As can easily be noticed, learned Counsel for the Appellants is right to say that the case of the Appellants that the 1st and 2nd Respondents demanded for the payment of N1,500,000.00 by the Appellants for the provision of infrastructure in respect of the plots in the Pearl Garden Estate, as pleaded in paragraphs 21-25 of the statement of claim and the evidence given by the CW1 in support and proof thereof were both not controverted at the trial and so the evidence remained unchallenged.
The general principle of law is that unchallenged and uncontroverted evidence on material facts of a case would ordinarily be accepted and acted upon by the Court as sufficient proof of the facts in respect of which it was adduced. In the case of American Cynamid Co. Ltd v. Vitality Pharm. Ltd (1991) 2 SCNJ, 42 @ 50-1 and 53, the apex Court had stated that:- ‘where the evidence of a witness has not been challenged, controverted or shaken under cross examination and is not inadmissible in law, and the evidence is in line with the facts pleaded, the evidence must be accepted as the correct version of what he says.’
See also Omoregbe v. Lawani (1980) 3-4 SC, 108; Oforlete v. State (2000) 12 NWLR (681) 415 @ 436; Durosaro v. Ayorinde (2005) 3-4 SC, 14; Iyere v. B. F. & F. M. Ltd (2008) 12 MJSC, 102; Shell Petrol v. Edamkue (2009) 7 MJSC (Pt. 1) 194; Nasir v. C. S. C., Kano State (2010) 6 NWLR (1190) 253.
However, such unchallenged and uncontroverted evidence can only be properly acted upon and relied on by the Court if it is admissible, credible and sufficient to reasonably prove the fact(s) in respect of which it was given or adduced. Rockonoh v. Nitel, Plc (2001) 14 NWLR (733) 468 @ 508-9; Gonzee Nig. Ltd. v. N.E. R. D. C. (2005)AFWLR (274) 235 @ 248; NBBBMC v. ACB Ltd. (2004) 1 SC (Pt.1) 32 @ 46-8; Adelakun v. Oruku (2006) ALL FWLR (308) 1360 @ 1373.
From the record of the proceedings at the trial as contained in the Record of Appeal, particularly at pages 343-344 which show the cross-examination of CW1 by learned Counsel for the 1st and 2nd Respondents, the evidence on the fact of the demand by the 1st and 2nd Respondents for the Appellants to pay for or contribute the sum of N1,500,000.00 for the provision of infrastructure in the Pearl Garden Estate was not even challenged or shaken, let alone discredited, but rather, affirmed and maintained by CW1.
The evidence is not inadmissible in law and is in line with the pleadings of the Appellants and so as required by the law, the High Court had the duty to accept it as the correct version and sufficient proof of the fact it was given or adduced to prove. In the premises, the High Court was wrong in law, to, in the first instance hold that the Appellants did not adduce any evidence to establish the averments in paragraphs 22-25 of the Statement of Claim, and in the 2nd instance, in not accepting and acting on the unchallenged and uncontroverted evidence of CW1 which was not discredited under cross examination, which is in line with the pleadings and not inadmissible in law, as proof of the facts pleaded.
I should state, however, that whether the said evidence is cogent and sufficient to warrant the grant of the declaratory reliefs sought by the Appellants, on the basis of the facts pleaded in their paragraphs 22-25 of the statement of claim, depends on the entitlement of the Appellants to the declaratory rights they claim in respect of access to the plots of land in the Pearl Garden Estate. The determination of the question would unavoidably lead to a consideration of the Appellants’ Issue 2, which, as reminder, is whether the High Court was right in refusing relief 2 of the Appellants’ Statement of Claim.
The Appellants’ arguments under Issue 2 are to the effect that the evidence of CW1 under cross-examination that the Appellants have sold all their thirty (30) plots of land at the Pearl Garden Estate is inadmissible and cannot be relied on by the High Court as it was not supported by any pleadings of the parties.
Reliance was placed on Usenfowokan v. Idowu (1967) ALL NLR, 125 @ 131; Ezewusim v. Okoro (1993) 5 NWLR (294) 478 and Dina v. Northern Nig. Newspapers (1986) 2 NWLR (22) 353 for the position and it is argued that the High Court had raised the issue of locus standi of the Appellants to institute the action in its judgement, which was resolved in their favour, holding that they have shown sufficient nexus to the plots of land in question. That it was an error for the High Court, after such finding, to later hold that the Appellants have divested their interest in the said plots land by sale.
The Court is urged, on the authority of Ameyo v. Oyewole (2009) 8 NWLR (1142) 1 @ 13, to set aside the holding by the High Court based on the inadmissible evidence obtained or elicited under cross-examination, but which is not supported by pleadings of the parties.
It is also the case of the Appellants that the finding by the High Court that Exhibit 7(d) brought an end to the relationship between Appellants and 3rd Respondent who did not call evidence at the trial and so deemed to have abandoned its statement of defence and admitted the Appellants’ claims, ought not to stand.
Furthermore, learned Counsel said if 1st and 2nd Respondents who were not parties to the agreement between the Appellants and 3rd Respondent intended to rely on novation, they ought to have pleaded it, but failed to do so.
The Court is urged to hold that Exhibit 7(d) is inadmissible as proof of the termination of the relationship between the Appellants and the 3rd Respondent. It is also the argument of Counsel that the High Court was wrong to have held that the Appellants did not prove title to the plots of land they claimed since the Appellants did not claim title, but allocation by the owners of the land for services rendered, in consequence of which they claimed relief 7 for the 4th Respondent to execute deed of assignment to the Appellants.
For the 1st and 2nd Respondents, it is submitted under Issue 2, that the High Court was right to have found that the Appellants did not prove title to the plots of land they claimed since the 1st and 2nd Respondents are in possession and that the Exhibit 4 relied on by the Appellants to claim right to the plots did not identify the plots in question and is not a document of title. At best, according to Counsel for the 1st and 2nd Respondents,
Exhibit 4 is an agreement to enter into a conveyance for thirty (30) unspecified plots of land, which, according to CW1 under cross-examination, the Appellants have sold all the plots allocated to them thereunder. Relying on Inspector Kayode v. Odutola (2001) 27 WRN 50 @ 68, (2001) 11 NWLR (725) 659 @ 674, Counsel submits that the evidence of CW1 that all the plots of land allocated to the Appellants had been sold by them, four (4) of which were sold to the 1st and 2nd Respondents, is admissible to show that the Appellants have divested their interest in the said plots.
Turning to Exhibit 7(d), it is contended that the Appellants did not appeal against the finding by the High Court that the relationship between the Appellants and 3rd Respondent in Exhibit 4 was terminated by the said Exhibit 7(d) and so the finding remains valid and binding. The cases ofAsogwa v. PDP (2013) 7 NWLR (1353) 207 @ 271, Ukwi v. Geco Prakla Nigeria Limited (2010) 16 NWLR (1220) 544 and Akinfolarin v. Akinola (1994) 3 NWLR (335) 659 were cited as authorities for the position.
The learned counsel for the Appellants in the Reply brief, cited the finding by the High Court that the evidence of CW1 identified the plots of land mentioned in Exhibit 4, allocated to the Appellants by the 3rd Respondent who abandoned their pleadings for failure to call evidence at the trial.
Again, reference was made by counsel to the finding by the High Court that there was no pleading in the statement of claim that the Appellants have divested themselves of the interest in the 26 plots of land claimed by them, against which there is said to be no appeal by the 1st and 2nd Respondent.
The relief (ii) claimed by the Appellants in their statement of claim, around which the arguments of the Appellants on Issue 2 revolve, is in the following terms: –
(ii) A declaration that the claimants plots of land namely block 8, plot 1 to 13 and block 9, plots 3 to 7, 10 to 14 and plots 32 to 34 also in block 9, are distinct and separate from the 1st and 2nd defendants plots of land and the 1st and 2nd defendants cannot dictate or direct the claimants or anyone claiming through them as to how and when to have access to the said remaining plots or exercise any control whosoever over the said twenty six (26) plots of land.?
I should say that there is no dispute between the Appellants and the 1st and 2nd Respondent that the Appellants were allocated plots of land for services which they rendered to the owners of the land that made up the Pearl Gardens Estate, out of which the Appellants sold four (4) plots to the 1st and 2nd Respondents. The Appellants? averments to that effect have not been denied or disputed by the 1st and 2nd Respondents in their Statement of Defence. Then in paragraph 15 of their statement of claim, the Appellants averred that: –
’15.The claimants avers that in lieu of payment for the services they rendered they were allocated thirty (30) plots of land and the thirty (30) plots were made up of block 8, plots 1 to 13 and block 9, plots 3 to 7, 10 to 14 and plots 32 to 38 also in block 9.’
There is no averment in the 1st and 2nd Respondents’ Statement of Defence which challenges, denies or even alludes to the averment on the identity of the plots of land allocated to the Appellants. The legal consequence of the failure or omission by the 1st and 2nd Respondent to respond to or answer, dispute or deny the above averment of the Appellants, by the established rules of pleadings, is that the 1st and 2nd Respondents are deemed to have admitted the fact stated therein. See Section 123 of the Evidence Act, 2011, J.E. Elukpo & Sons Limited v. F.H.A. (1991) 3 NWLR (179) 322, Mobil Product Nigeria Limited v. Umemedimo (2006) ALLFWLR (313) 116, Kotun v. Olasewere (2010) 1 NWLR (1175) 411. A fact admitted needs not be proved is the statutory provision in Section 123 of the Evidence Act, 2011. In that regard, the High Court was right when it stated and held in its judgement, at page 368 of the Record of Appeal, inter alia, that: –
‘The claimants herein have established by credible evidence that in consideration of certain surveying services rendered by the claimants to the 3rd defendant the latter allocated 30 plots of the family land to them and I so hold. At the very least the claimants must be deemed to have acquired an equitable interest in the 30 plots of land lying, being and situate at plots 1-13 in Blocks 8 and Plots 3-7, 10-17, 32-38 in Block 9.’
With above findings, the High Court had recognized and accepted that the Appellants’ ‘have acquired an equitable interest in the 30 plots of land lying, being and situate at plots 1-13 in Blocks 8 and Plots 3-7, 10-17, 32-38 in Block 9? in what later became the Pearl Gardens Estate.
In paragraphs 19 and 20 of the Statement of Claim, the Appellants have stated that: –
19.The claimants avers that sometime in year 2005 the 1st defendant approached the 2nd claimant and informed him that he will need to contribute the sum of N130,000.00 (One Hundred and Thirty Thousand Naira) for clearing road and fencing the plots of land allocated to the claimants.
20.The claimants avers that the 1st defendant also informed the 2nd claimant that the contribution will also be made by those who have bought land from the 30 plots allocated to them.
Again, the 1st and 2nd Respondents did not allude to the averments nor specifically and directly deny or controvert them and so deemed to have admitted them as true and correct without the need for proof.
All the same, CW1, in paragraphs 19 and 20 of his Statement on Oath, gave evidence in line and support of the averments, which evidence was not discredited under cross-examination by Counsel for the 1st and 2nd Respondents, thereby proving the facts set out therein, as required by the law; on the balance of probability.
Minimum evidence is required in such situations where only one-party calls evidence on a fact which was not disputed. Nwabuoku v. Ottih (2001) 2 SCNLR, 32, (1961) ALLNLR, 489, NEPA v. Alli (1992) 8 NWLR (259) 279, Egbunike v. ACB Limited (1995) 2 SCNJ, 58 @ 78, Ajero v. Ugorji (1999) 7 SC (Pt. 1) 58 @ 76.
The Appellants gave evidence in support of the undisputed averments which are deemed admitted by the 1st and 2nd Respondents to support and establish their entitlement to the declaratory reliefs sought in line with the law that such reliefs are not usually granted on admission by the other party against whom they are claimed, but on proof of entitlement by ways of credible and satisfactory evidence. Ezeokonkwo v. Okeke (2002) FWLR (109) 1652 @ 1675-6, Onu v. Agu (1996) 5 SCNJ, 74 @ 87, Odumeru v. Adenuga (2000) 12 NWLR (682) 446 @ 476-7.
The declaration sought in relief (ii) by the Appellants is that the plots of land which the High Court has accepted and recognized their equitable interests in, are distinct and separate from those belonging to the 1st and 2nd Respondents who cannot dictate or direct how or when the Appellants can have access to their plots of land.
Now, it is common ground and so there is no dispute that all the plots of land in Pearl Gardens Estate initially belonged to and were owned by the Royal families of the Banjoko and Oyetubo, who later on set up the 3rd Respondent to manage them.
That all the plots of land were subsequently, made up to become the Pearl Garden Estate by the 3rd Respondent after the allocation of the plots claimed by the Appellants to them, with the 1st and 2nd Respondents as managers of the Estate.
The 1st and 2nd Respondents do not claim in their pleadings, to own any of the plots of land in the Estate, but with the consent and agreement of the 3rd Respondent; the owners of all the plots of land, provided access road, perimeter fencing, water supply, electricity, etc. to service the plots for the purposes of development.
There are therefore no plots of land in the Estate belonging distinctly and separately to the 1st and 2nd Respondents, except the four (4) plots admittedly sold to them by the Appellants from those of the Appellants for which the declaration sought in relief (ii) could reasonably be made by the High Court based on the case presented by the Appellants in both pleadings and evidence.
Since the relief (ii) is not one which primarily seeks ownership or title to the plots of land in question and parties did not join issues on the ownership or title of the Appellants to the said plots of land, the issue of proof of title by the Appellants did not arise and was of no moment in the case presented by them for the relief.
However, as beneficiaries of the facilities provided for at the plots of land owned by the 3rd Respondent out of which the Appellants were allocated the plots they claimed, the Appellants who did not challenge the 3rd Respondent for turning all the plots of land into an Estate and putting the 1st and 2nd Respondent to manage them, cannot and should be heard to deny that their own plots of land are not subject to the management of the Estate by the 1st and 2nd Respondents.
Learned Counsel for the Appellants has stated that the High Court has relied on evidence of CW1 under cross-examination that the Appellants have sold all the 30 plots allocated to them by 3rd Respondent to refuse the relief (ii).
The law is now settled, that any evidence adduced or elicited by a party which is not supported by or in line with facts contained in the pleadings of any of the parties, would go to no issue and is irrelevant for consideration in the case and therefore, inadmissible. In this regard, it is immaterial whether such evidence was given in examination-in-chief, cross-examination or re-examination so long as it is not on any material fact pleaded by the parties.
Evidence not supported by pleadings of the parties goes to no issue and cannot be acted upon or relied on by the Court as the basis for any decision. Nwarata v. Egboka (2006) ALLFWLR (338) 768, Lamurde Local Government v. Kaoka (2010) 10 NWLR (1203) 574. Awoyegbe v. Ogbeide (1988) 1 NWLR (1973) 695, Amobi v. Amobi (1996) 9-10 MAC, 101 @ 116, SPDCN v. Ambah (1999) 3 NWLR (593) 1 @ 14. Oladipo v. M.L.G.A. (2010) 5 NWLR (1186) 177.
In its judgement, the High Court, at page 359 of the Record Appeal found that: –
“In the instant case, I have carefully examined the 34 paragraphs of the statement of claim and nowhere on same has it been pleaded that the claimants have divested themselves of title to the 26plots of land allegedly allocated to them by the 3rd defendant and I so hold.”
Even though, the High Court did not say so, but I have read the statement of defence filed by the 1st and 2nd Respondents and did see any averment of fact that the Appellants have sold all the 30 plots of land allocated to them by 3rd Respondent and so divested themselves of the equitable interest which the High Court found they have acquired therein.
Although the 3rd Respondent in paragraph 15C of the statement of defence dated 21st April, 2010 denied allocating any plots to the 2nd Appellant, no evidence was given at the trial by the 3rd Respondent and so the statement of defence was rightly deemed to have been abandoned.
There was, therefore, no averment of fact in the parties’ pleadings that the Appellants have sold all the 30 plots of land in question which the evidence given by or elicited from the CW1 by Counsel for the 1st and 2nd Respondents under cross-examination, goes to no issue and it is not supported by any pleadings. The evidence goes to no issue, it is irrelevant and inadmissible, as rightly submitted by the learned counsel for the Appellants.
However, the law allows evidence elicited under cross-examination by a party to be admitted and acted upon by a Court even if the evidence goes to support or proof a fact pleaded by the other party and not in the pleading of the party eliciting the evidence. Bamgboye v Olarewaju (1991) 3 LRCN, 897 @ 926, Balogun v. Oshunkoya (1992) 3 NWLR (232) 827 @ 835.
On the issue of Exhibit 7(d), which was written by the 1st and 2nd Respondents to the 2nd Appellant purporting to terminate or end the relationship between him and the 3rd Respondent, the High Court had found that the 1st and 2nd Respondents were not parties to the agreement between the Appellants and the 3rd Respondent on the services to be rendered by the Appellants in respect of the land in question. This is what the High Court said in its judgement at page 367 of the Record of Appeal on the issue: –
“In the instant case it is evident that the contracting parties to Exhibit 4 are Oyetubo Jokotade Estate Resources (3rd defendant) on one hand and Land Related Services Related Services Contractors (claimant) on the other hand. It is manifest that the 1st and 2nd defendants herein not being parties to the agreement cannot purport to take advantage or benefit of the terms of the agreement and I so hold.”
Not being parties to the agreement which brought about the relationship between the Appellants and the 3rd Respondents, the 1st and 2nd Respondent are strangers to the contract between the parties and law is now common knowledge, that the rights and obligations incorporated into the terms of a valid contract freely agreed to and entered into by the parties can only be enforced by the contracting parties and not outsiders who are non parties to the contract even if the contract was made for their benefit by any of the parties. That is what has become known as the doctrine privity of contract which does not allow interference by non-parties to a contract with the agreement voluntarily and freely entered by other parties to provide for and govern a fudiciary relationship between them. J. E. Oshevire Limited v. Tripoli Motors (1997) 5 NWLR (503) 1, Savannah Bank, Plc v. Ibrahim (2000) 6 NWLR (662) 585,Nwokhoba v. Dumex Nigeria Limited (2004) 3 NWLR (861) 461, Borishade v. NBN Limited (2007) 1 NWLR (1015) 217, C.B. Limited v. Intercity Bank Plc (2009) 15 NWLR (1165) 445, UBN, Plc v. Soares (2012) 11 NWLR (1312) 550.
Being strangers to the contract between the Appellants and the 3rd; a contract entered into before the proposal by the 1st and 2nd Respondent to the 3rd Respondent for turning the plots of the land into an exclusive Estate, was accepted by the 3rd Respondent, the 1st and 2nd Respondents lacked the legal standing and power to terminate the contract or relationship created thereby between the Appellants and the 3rd Respondent.
It is an error in law to say and hold that Exhibit 7(d); a letter from non parties to the contract between the Appellants and 3rd Respondent, terminated or ended the contractual relationship between the parties as was done by the High Court at page 370 of the Record of Appeal.
Be that as it may, with the conclusion that relief (ii) claimed by the Appellants cannot be granted since the plots of land in question are not distinct and separate from the plots of land that make up the Pearl Garden Estate in to which the
3rd Respondent owner and the grantor of the plots to the Appellants, has turned them without objection, reliefs (i) and (iii) claimed by the Appellants must fail. This is because, all the plots of land that make up the 3rd Respondent’s land including those allocated to the Appellants, are subject to the management of the 1st and 2nd Respondents for the 3rd Respondent. The plots allocated to the Appellants by the 3rd Respondent cannot be excised and be managed separately and distinctly from the other plots of the 3rd Respondent’s land, all of which now make up the Pearl Gardens Estate.
I now turn to Issue (3) under which the Appellants’ Counsel contends that the High Court was wrong to have refused to grant reliefs 4, 5, 6 and 7 of the statement of claim, being equitable. Reference was made to the doctrine of privity of contract, duty of the Court in interpretation of a contract by the parties and position of the law on the issue. Learned Counsel said the High Court did not exercise its discretion in respect of the reliefs, judicially and judiciously, as required by law. The case of Ogunleye v. Oke (2009) ALLFWLR (469) 552 @ 561 was cited on the conditions for the grant of perpetual injunction which are said to have been met by the Appellants for the grant. It is then submitted that the High Court had the duty to, but, did not make pronouncements on reliefs 2, 3, 4, 5, 6 and 7 of the statement of claim, as required in the case of Ajao v. Odofin (1999) 12 NWLR (631) 471 @ 478; among other cases cited. According to counsel, failure to make pronouncement on all the reliefs in the Appellant’s statement of claim, has occasioned a miscarriage of justice and the Court is urged to resolve the issue in favour of the Appellants.
For the 1st and 2nd Respondents, it is submitted that since the plots in respect of which injunctive reliefs were sought were allocated to the Appellants by 3rd Respondent against whom no relief was claimed, the relief claimed against the 4th Respondent for specific performance was rightly dismissed by the High Court since the Appellants did not plead that the 4th Respondent was the agent of the 3rd Respondent. Gaji v. Paye (2003) 8 NWLR (823) 583 was referred to and it is argued that the reliefs sought against the 1st and 2nd Respondents for trespass must fail since they are in possession of the plots and Appellants have not shown that they are the owners relying in inter alia, Din v. A. G. Federation (2004) 12 NWLR (888) 459. On the authority of Ogunfaolu v. Adegbite (1986) 5 NWLR (1945) 549 and Ajani v. Ladepo (1986) 3 (1928) 276, it is submitted that the claim for trespass and injunction, puts title to land in issue and that the High Court was right to have held that the Appellants failed to prove title to the plots of land they claimed, against which the Appellants have not appealed.
Counsel argues that the grounds of the Appellant’s appeal merely complained against the failure by the High Court to grant all the reliefs claimed by them and there was no complaint against specific and fundamental findings by the High Court which therefore remain binding and are deemed accepted by them. Lagga v. Sarhuna (2008) 50 WRN, 63 @ 113 was referred to.
In the Appellant’s Reply brief, the finding by the High Court on the allocation of the plots claimed by the Appellants to them was cited and it is said there is no cross-appeal against it. The cases cited in the 1st and 2nd Respondents? brief on the point are said to be irrelevant and immaterial to the appeal.
In its judgement, the High Court had identified three (3) issues for determination in the case before it and issue 3 is: ‘Whether the claimants are entitled to the reliefs sought.’
Under the issue, the High Court did not take and specifically consider each of the reliefs sought by the Appellants in the statement of claim, as set out therein, but considered all the reliefs together in line with the evidence adduced by the parties, especially the Appellants on their entitlement to the reliefs before eventually holding that on grounds of failure to prove demand for payment of service charge from the 1st and 2nd Respondents, that the Appellants have divested their interests in the plots of land in question and that any relationship between the parties was terminated by Exhibit 7(d), the Appellants failed to prove their case as required by the law. Simply because the High Court did not specifically take and consider the reliefs as set out in the Appellants? Statement of Claim is not automatically tantamount to failure to consider all the said reliefs as that Court has the discretion to adopt any style in writing judgement and consideration of issues or reliefs which it considers relevant and material in the determination of a case presented before it by the parties.
A Court is not bound to consider issues or reliefs in the particular manner, way or style they are couched, crafted or formulated and set out in the pleadings. UBA, Plc v. Ogundokun (2009) 6 NWLR (1138) 450, Duru v. Nwosu (1989) 4 NWLR (113) 24, Uchendu v. Ogboni (1999) 5 NWLR (603) 337, Usiobaifo v. Usiobaifo (2005) 1 SC (Pt. 1) 60 @ 77.
Ordinarily, the law is that a Court has a duty to consider and make pronouncements on all material issues joined by the parties in their pleadings and on which evidence was adduced before it by them in its judgement in the case. Okonji v. Njokanma (1991) 7 NWLR (202) 131, Cookey v. Fombo (2005) 5 SC (Pt. II) 102, Ojoh v. Kamalu (2006) ALLFWLR (297) 978, Akpan v. Bob (2010) 17 NWLR (1223) 421.
The reliefs claimed by parties are usually predicated on the vital and material issues placed by them before the Court and pronounced upon in the determination of the case.
Once a Court, no matter the style, manner or mode adopted, in writing judgements or consideration of the issues and the consequential reliefs sought, considers and decides the vital and material issues of the cases presented by the parties in both pleadings and evidence, it would have dutifully and properly discharged its primary judicial duty.
In the instant appeal, the High Court has considered and made pronouncements on all vital and material issues joined by the parties in both pleadings and relevant evidence adduced by them.
Having said that, I wish to point out that the reliefs (iv) (v) and (vi) are injunctive reliefs against the 1st and 2nd Respondents, who by the pleadings and evidence before the High Court, are managers of the plots of land admittedly belonging to the 3rd Respondent that are now the Pearl Gardens Estate. It is not the Appellants? case that the 1st and 2nd Respondents have taken away the twenty-six (26) plots of land allocated to them by the 3rd Respondent or trespassed on the said plots.
The case of the Appellants is primarily that the 1st and 2nd Respondent have no right to include the said plots into the Estate and demand for payment of service charges for the infrastructure provided, by owners of plots of land in the Estate, including the ones allocated to the Appellants.
In the absence of facts and evidence of the acts of trespass by the 1st and 2nd Respondents on the 26 plots of land in question, from the pleadings of the Appellants, the reliefs (iv) and (vi) are left bereft of foundation upon which they could stand to be granted. For relief (v), the Appellants did not plead the specific plots of land purchased by the 1st and 2nd Respondents from the 3rd Respondent which they proposed to turn into ‘any gated community or housing scheme’.
The pleadings and evidence before the High Court were that the 3rd Respondent accepted the proposal and permitted the 1st and 2nd Respondents to make all the plots of its land, into the Pearl Gardens Estate, to the knowledge of the Appellants and the Estate, with all the requisite infrastructural facilities for development, has been established. The Appellants did not seek the reliefs against the owners of the plots of land; the 3rd Respondent and so it cannot be granted against the 1st and 2nd Respondents.
The last of the reliefs, is relief (vii) against the 4th Respondent.
In paragraph 5 of the Appellants’ statement of claim, it averred that:
‘The 4th Defendant is a lawyer and secretary to the 3rd Defendant with a duty to execute and not to authorize all Deeds of Assignment in respect of the land.’
This averment was repeated in paragraph 6 of CW1’s Statement on Oath, which was the evidence at the trial in support thereof.
The Appellants’ case is simply that the 4th Respondent (4th Defendant) is the secretary to the 3rd Respondent (3rd Defendant) who executes all deeds of assignment in respect of all the plots of land into which the 3rd Respondent’s land was made, including the 26 plots to which the relief relates. In the 8th Edition of Black’s Law Dictionary, page
1381, the word and position of a ‘secretary’ is defined as: –
1.An Administrative assistant.
2.A corporate officer in charge of official correspondence, minutes of board meetings, and records of stock ownership and transfer. Also termed clerk of the corporation
From this simple definition of the position of a secretary, the 4th Respondent is merely a corporate officer who, in addition to other instructions and duties given and assigned by the 3rd Respondent, is only in charge of official correspondence, minutes of board meetings and other records of the company. The Order sought by the Appellants to be directed at the 4th Respondent as the secretary of the 3rd Respondent is clearly misdirected since the allocation of the 26 plots of land to them was not said and shown to have been made or done by the 4th Respondent, as the secretary of the 3rd Respondent. The duty to execute and notarize all Deeds of Assignment in respect of the 3rd Respondent’s land can only be properly directed at it, as the owner and not at a secretary. The relief is not, in the premises, grantable and for the aforementioned reasons; the issue is resolved against the Appellants.
In the final result, the appeal is lacking in merit and is dismissed. The judgement delivered by the High Court on the 24th October, 2012 in the Appellants’ Suit No. LD/613/09 is hereby affirmed. Parties to bear their respective costs of prosecuting the appeal.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft the comprehensive lead Judgment prepared and rendered in this appeal by my lord and learned brother GARBA JCA, I am in complete agreement with the reasoning and conclusion and therefore adopt the Judgment as my own. I have nothing extra to add.
TOBI EBIOWEI, J.C.A.: I have seen and read the draft of the Judgment of my Learned brother, MOHAMMED LAWAL GARBA, JCA. I agree with the reasons and conclusion reached by my Learned brother in the lucid judgment just delivered. In the circumstance, I also dismiss the appeal and affirm the decision of the lower Court.
Appearances:
S. O. AgbesusiFor Appellant(s)
R. Aladesanmi with him, A. Deniran and D. Fasehun for 1st & 2nd Respondents.
3rd & 4th Respondents not represented.
For Respondent(s)
