MRS AFFIONG AARON UMOH & ANOR v. CATHERINE GEORGE UDOH (2016)

MRS AFFIONG AARON UMOH & ANOR v. CATHERINE GEORGE UDOH

(2016)LCN/8404(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/C/36/2013

RATIO

EVIDENCE: ADMISSION; WHETHER FACTS ADMITTED BY TE PARTIES NIN THERE PLEADINGS NEED NO PROOF

Moreover, the two parties interacted physically in the house over the years and as observed by the learned trial Judge, facts admitted by the parties in their pleadings need no proof. See TEMILE v. AWANI (2006) 6 NSCQR 1081, KHALIL V. YAR?ADUA 1 EPR 746 and ATTORNEY GENERAL ABIA STATE & ORS V. ATTORNEY GENERAL OF THE FEDERATION (2002) 9 NSCQR 670. PER. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

APPEAL: INTERFERENCE; CIRCUMSTANCE WHERE THE APPELLATE COURT CAN INTERFERE IN MATTERS THAT ARE ON THE EXCLUSIVE PRESERVE OF THE TRIAL COURT

It is trite that civil cases are decided on balance of probabilities and evaluation of evidence and ascription of probative values thereto is the exclusive preserve of the trial Court who saw and heard the witnesses. An appellate Court would only interfere where this exercise has been perverse in some way, which however was not the case here. See GBEMISOLA v. BOLARINWA (2014) 57 NSCQR 510, BASIL v. FAJEBE (2001) 6 NSCQLR 269 and ANEKWE v. NWEKE (2014) 58 NSCQR 37. PER. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

JUSTICES

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

1. MRS AFFIONG AARON UMOH

2. IDONGESIT AARON UMO – Appellant(s)

AND

CATHERINE GEORGE UDOH – Respondent(s)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division delivered on the 23rd December, 2012 by E. Edemekong J.

The appellants as plaintiffs had taken out a writ against the respondent over a dispute involving a property situate and known as 42A, Ikot Ekpene Road, Abak, Akwa Ibom State upon which the appellants took out a writ on the 24th June, 1998. The reliefs sought were as contained in Paragraph 12 of the Further Amended Statement of claim filed on 11th July, 2006 upon which the case was heard, contained on pages 178-180 of the record of appeal as follows:

(a) A declaration that they are as against the defendant entitled to the statutory right of occupancy of the property known as and situate at No. 42A, Ikot Ekpene Road, Abak.

(b) A declaration that neither the defendant nor Late Mr. George Hilary Udoh (the person from whom the defendant claims to derive title) has any right whatsoever to the said property or any part thereof.

Late Mr. George Hilary Udoh is null, void and of no effect whatsoever.

(d) An injunction restraining the defendant whether by himself, his agents workmen, servants and/or privies from any acts of trespass on the said property particularly from collecting rents from the tenants therein or in any tampering or interfering with the administration of the said property.

(e) An account of all the rents collected from tenants in the property since February, 1980 and payment of same to the plaintiffs.

On being served, the defendant joined issues with the plaintiffs and filed a counter-claim seeking the reliefs contained in the amended statement of defence and counter-claim filed on 3rd August, 2005 contained on pages 161-168 of the record of appeal as follows:

(a) A declaration that the defendant Mrs. Catharine George Udoh is entitled to the right of occupancy of the property known as and called No. 42A, Ikot Ekpene Road, Abak-forfeiture and;

(b) An order of forfeiture and vacant possession of the rooms at No. 42A Ikot Ekpene Road, Abak, which the 1st plaintiffs let, on ground of her challenge of her landlord’s title.

the rate of N65. 00 (Sixty-Five Naira) per month from September 1992 until possession is given up.

(d) Arrears of rent at the rate of N400.00 (four hundred Naira) per month from January, 1999 until possession is given up, being the monthly rent on the 2 (two) rooms the plaintiffs forcefully seized and rented out to two squatters since 1999.

(e) An order of perpetual injunction restraining the plaintiffs by themselves, their agents, assigns or privies from any act of trespass or further interference howsoever with the defendant?s peaceful possession and enjoyment of the property at No. 42A Ikot Ekpene Road, Abak, Akwa Ibom State.

Along the line, the original defendant passed away and was substituted with the present respondent who defended the case till conclusion of trial. At trial, each side called 1 witness a piece and after hearing the final addresses of counsel, the learned trial Judge in a reserved judgment delivered as aforesaid on the 23rd December, 2012 found for the defendant in respect of the counter-claim and dismissed the claim of the plaintiffs.

Dissatisfied, the appellants invoked the appellate jurisdiction of this

honourable Court via a notice of appeal filed on the 10th December, 2012 containing 5 grounds.

At the hearing of the appeal the learned counsel for the appellants, Mr. Inyang adopted the appellants’ brief filed on the 9th October, 2015 but deemed properly filed and served on the 26th February, 2015 as well as the appellants’ reply brief filed on the 23rd September, 2015 but deemed properly filed and served on the 8th March, 2016 as the arguments of the appellants in furtherance of this appeal.

Therein the learned counsel distilled and argued 4 issues for determination as follows;

i. Whether the learned trial Judge was right in holding that the issue in contention between the parties in the suit is House 42A Ikot Ekpene Road, Abak when Exhibit 11 and 12 relate to 61 Ikot Ekpene Road, Abak. (ground 1).

ii. Whether the learned trial Judge was right in admitting oral evidence to contradict, alter or add to a written document, Exhibit 11 and 12 (grounds 2 and 3).

iii. Whether the trial Judge was right to rely on NEPA bills, Exhibit 14-15d to decide the ownership of the disputed property (ground 4).

iv. Whether there was

landlord/tenant relationship between the defendant as the landlord and the plaintiff as the tenant.

For the respondent, her counsel Mr. Ekanem adopted the respondent?s brief of arguments filed on 26th February 2015 as the arguments of the respondent in contesting this appeal. He abandoned the preliminary objection contained therein and adopted the issues for determination formulated and argued by the appellants.

As a first step, the preliminary objection of the respondents contained and argued in Paragraphs 4.4-4.6 of the respondent’s brief having been abandoned is accordingly struck out.

I shall now proceed to the substance of the appeal beginning with the first issue which is;

Whether the learned trial Judge was right in holding that the issue in contention between the parties in the suit is House 42A Ikot Ekpene Road, Abak when Exhibits 11 and 12 relate to 61 Ikot Ekpene Road, Abak.

Arguing this issue, Mr. Inyang reviewed the evidence adduced by the appellants at the trial and submitted that the learned trial Judge failed to properly evaluate the said evidence especially Exhibits 4, 11, 12 and 13 leading to a wrong conclusion

as to the identity of the property in dispute.

Responding to this point, Mr. Ekanem referred to the pleadings of the two parties and the evidence adduced and submitted that from the evidence at trial, parties were not in doubt as to the property in dispute and that once parties knew the property they were disputing, the number given to it was immaterial. He referred to TSEMUDIARA v. MESSRS F.G.S. & CO. LTD (2008) 7 NWLR (PT 1085) 84 at 88 and 106-107.

In his reply Mr. Inyang submitted that the facts of this case differed from those in TSEMUDIARA V. MESSRS F.G.S. & CO. LTD (supra) as the transfer documents relied on by the respondent indicated a different property from that of the appellants.

In tackling the issue raised here. the take off point is the pleadings of the parties to discern what they stated before the Court as constituting the subject-matter of their dispute.

The appellants in Paragraph 12(a) of the Further amended statement of claim filed on 11th July, 2006 sought as follows:

(a) A declaration that they are as against the defendant entitled to the statutory right of occupancy of the property known as and situate

at No. 42A, Ikot Ekpene Road, Abak.

The respondent on her part counter-claimed in her amended statement of defence and counter-claim as follows:

A declaration that the defendant Mrs. Catharine George Udoh is entitled to the right of occupancy of the property known as and called No. 42A, Ikot Ekpene Road, Abak-forfeiture.

It is therefore evident that what was at stake was the said property known as and described as 42A, Ikot Ekpene Road, Abak, Akwa Ibom State.

The two parties were also ad idem on the root of title as they both averred that the original owner of the said land was one Late E. U. Udoetuk as can be gleaned from Paragraph 3 of the amended statement of defence and counter-claim as well as Paragraph 3 of the reply to statement of defence and defence to counter-claim of the appellants filed on the 22nd August, 2005 contained on pages 170-172 of the record of appeal.

The finding of the learned trial Court cannot therefore be justifiably complained against as the pleadings of the parties do not reflect any dispute on the identity of the subject-matter of dispute.

It is trite as Mr. Inyang submitted that parties are bound

by their pleadings. See AYANWALE v. ODUSAMI (supra), NSIRIM v. NSIRIM (2002) 9 NSCQR 198 and OKHUAROBO v. AIGBE (2002) 9 NSCQR 623.

I therefore resolve this issue against the appellants and in favour of the respondent.

The next issue is:

Whether the learned trial Judge was right in admitting oral evidence to contradict, alter or add to a written document, Exhibit 11 and 12.

Arguing this issue Mr. Inyang submitted that Exhibits 11 and 12 relate to No. 61 Ikot Ekpene Road, Abak, it was erroneous for the learned trial Judge to have admitted oral evidence that the documents relates to No. 42 Ikot Ekpene Road, Abak especially in the face of Exhibit 8 the appellants, building plan. He referred to NWOKEDI v. ORAKPOSIN (1992) 4 NWLR (PT 233) 120.

He submitted further that in every sale agreement the description of the property sold cannot be varied by oral evidence. He referred to EGHAREVBA V. OSAGIE (2009) 40 NSCQR 469 at 503.

He further submitted that Exhibits 11 and 12 only showed payment of money and did not show that title passed or that the property in question was handed over to the respondent’s husband and that the learned

trial Judge did not satisfy himself that the exhibits satisfied the requirements of the law in force at that time. He referred to ETAJATA v. OLOGBO (2007) 30 NSCQR 966 at 1004 and OYENEYIN v. AKINKUGBE (2010) 41 NSCQR 416.

He stated that Exhibit 16, the letter of administration of the estate of the respondent’s late husband did not contain any property described either as 61 or 42 Ikot Ekpene Road, Abak and urged the Court to resolve the issue in favour of the appellants.

For the respondent Mr. Ekanem submitted that the learned trial Judge did not admit oral evidence to vary the contents of Exhibits 11 and 12 but that the said documents were made over 30 years before the litigation and were entitled to the probative values given them.

He further submitted that pursuant to Sections 128 (1) (a), 129 (4) and 167 of the Evidence Act, 2011 the pleadings and testimony of the respondent on the renumbering of the property in question was believable and rightly accorded by the learned trial Judge.

He stated that the evidence of the respondent on the letter of administration Exhibit 16 was that it only related to the personal and not real property

of her late husband.

He concluded on this that pursuant to Sections 155 and 156 of the Evidence Act (supra), considering the signatures on Exhibits 11 and 12 are entitled to the appropriate presumptions of genuineness.

In his reply brief, Mr. Inyang submitted that Sections 128 and 129 of the Evidence Act (supra) did not constitute exceptions to the general rule concerning oral evidence contradicting written documents.

He further submitted that the presumption in Section 167 of the Evidence Act is inapplicable to this case as onus of establishing renumbering was on the respondent.

He submitted that parties were not entitled to omit real property from letters of administration and urged the Court to discountenance the arguments of the respondent’s counsel.

In considering this issue as posed and argued, it is imperative to point out that the learned trial Judge did not admit parole evidence to vary the contents of Exhibits 11 and 12 in resolving the identity of the property in dispute.

It is imperative for counsel to keep fidelity with the facts while deploying their advocacy skills.

Before the trial Court were the

pleadings of the parties wherein the parties were unequivocal as to the property in dispute between them.

The parties both averred and later gave evidence that the land on which the property stood was acquired from a certain (late) Mr. Udoetuk. The said Udoetuk in this capacity sold the land via Exhibit 13 to the husband of the respondent while the husband of the 1st appellant executed Exhibits 11 and 12. The capacities of the two vendors were never in issue.

I cannot find any merit in the contentions of the appellants in this regard and I hereby resolve this issue in favour of the respondent.

The next issue is:

Whether the trial Judge was right to rely on NEPA bills, Exhibit 14-15d to decide the ownership of the disputed property.

Arguing this issue, Mr. Inyang submitted

that NEPA bills are incapable of Establishing ownership of a disputed property and that the learned trial Judge was in error to have regarded NEPA bills in this instance as basis for ownership of the disputed house. He referred to IDUNDUN v. OKUMAGBA (1926) 9/10 SC 227 at 246-250.

In response, Mr. Ekanem submitted that the NEPA bills Exhibit 14 – 14(2) were tendered as evidence of long possession and control of the disputed property by the brother in law of the respondent in line with her pleadings and oral evidence and urged the Court to discountenance the submissions of the appellants.

A perusal of the judgment of the trial Court reveals evidently that the NEPA bills Exhibit 14 were not considered as title documents by the learned trial Judge. On page 319 of the record of appeal, the learned trial Judge stated as follows:

From the above set of testimonies, the 1st plaintiff’s account of how Fabian Hilary Udoh got into the house at No. 40 A Ikot Ekpene Road, Abak does not sound convincing. The account of DW1 seems more probable, especially in the face of the fact that bills in respect of the house were made out in the name of Fabian Hillary Udoh

such as Exhibit 14.

The arguments of the learned counsel for the appellants could in this regard be justifiably considered misconceived.

I accordingly resolve this issue against the appellants and in favour of the respondents.

The final issues is:

Whether there was landlord/tenant relationship between the defendant as the landlord and the plaintiff as the tenant.

Arguing this issue, Mr. Inyang referred to the testimony of the respondent at the trial and submitted that she failed to establish that the appellants were tenants in the premises and thereby faulted the orders made by the learned trial Judge in this regard.

Responding Mr. Ekanem submitted that the pleadings of the respondent were copious on this issue and that in Exhibit 10a an affidavit sworn to by the 1st appellant she admitted being respondent?s tenant thereby constituting an admission against interest. He referred to Section 123 of the Evidence Act, INIAMA V. AKPABIO (2008) 17 NWLR (pt. 1116) 225 at 258 and INEC v. OSHIOMOLE (2009) 174 LRCN 178 at 188.

In putting together his arguments on this issue, Mr. Inyang once again evaded the basis for the

findings and orders of the trial Court. On lines 9-16 of page 319 of the record of appeal, the learned trial Judge stated as follows:

The fact of Fabian Hillary Udoh being a brother in law to the DW1 makes the evidence of DW1 on the issue of PW1’s tenancy in the building at No. 42A Ikot Ekpene Road, Abak more probable. I therefore prefer the testimony of the DW1 as to how PW1 became a tenant in the property especially as it relates to the role of Fabian Hilary Udoh and the circumstances as to which Fabian Hilary Udoh got to the house No. 42A having regards to his relationship with the DW1. I am swayed by the probative value of the DW1’s testimony.

Making a strawman’s argument would not in any manner invest an argument with the validity it never had, the inherent fallacy is exposed once subjected to the slightest objective scrutiny. Such is the fate of the appellants in this regard.

this exercise has been perverse in some way, which however was not the case here. See GBEMISOLA v. BOLARINWA (2014) 57 NSCQR 510, BASIL v. FAJEBE (2001) 6 NSCQLR 269 and ANEKWE v. NWEKE (2014) 58 NSCQR 37.

I therefore resolve this issue also against the appellant and in favour of the respondent.

In totality therefore, this appeal is devoid of any iota of merit and I accordingly dismiss it.

Cost of N20, 000.00 is awarded against the appellants in favour of the respondent.

ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, J.O.K. Oyewole, JCA, made available to me, in draft form, the lead Judgment dismissing this appeal.

The issues raised in this appeal have been comprehensively addressed. I am in agreement with his reasoning and conclusion, which I adopt as mine. I also dismiss the appeal as unmeritorious. I abide by the orders made in the lead Judgment.

PAUL OBI ELECHI, J.C.A.: I have read in advance the draft Judgment just delivered by my Learned brother – Joseph Olubunmi Kayode Oyewole, JCA.

?I agree with him that the appeal has no merit and ought to be dismissed. I also abide by the consequential orders as

to costs.

Appearances

I. Inyang, Esq.For Appellant

AND

E. Ekanem, Esq. with him, U. Umoh, Esq.For Respondent