MRS. JULIANA MORADEKE ALALADE & ORS v. CHIEF TAJUDEEN SUBERU ODODO & ORS
(2019)LCN/12810(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/L/286/2013
RATIO
COURT AND PROCEDURE: DUTY OF THE TRIAL COURT
“It is the trial Court that sees the witnesses, hears their testimony and observes their demeanour. It therefore has the primary duty of evaluating and ascribing probative value to the evidence adduced. In its duty of perception of evidence, id est, receive all available relevant evidence on an issue, the lower Court admitted the purchase receipts in evidence. Having admitted them in evidence, it next had the duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence, after which it makes a finding of fact on the evidence. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT. 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 – 51.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE BY THE COURT
“It is rudimentary law that evidence even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT. 313) 588, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659: ‘The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak, that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff’.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LAND LAW: BURDEN TO PROVE TITLE TO LAND
“The relief of declaration is not granted in default of defence without evidence being adduced in proof of entitlement to the declaration sought: BELLO vs. EWEKA (1981) 1 SC 101, DIM vs. ENEMUO (2009) 10 NWLR (PT 1149) 353, OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81, IROAGBARA vs. UFOMADU (2009) 11 NWLR (PT 1153) 587, HAWAD INTERNATIONAL SCHOOL LTD vs. MIMA PROJECTS VENTURES LTD (2005) 1 NWLR (PT 908) 552 and SHESHE vs. NATAWA (2015) LPELR (25912) 1 at 28-30. It is hornbook law that a claimant for a declaration of title to land must succeed on the strength of his case and not on the weakness of the defendant’s case or want of a defence, except where the defendant’s case supports the claimant?s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 141, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19-20. Even though the Respondents did not file a statement of defence and did not adduce any challenging or controverting evidence, it was still for the Appellants to establish the declaration sought over the disputed land. The heavy burden of proving title to the disputed land rested squarely on the Appellants.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. MRS. JULIANA MORADEKE ALALADE
2. TOLULOPE ALALADE
3. OLUTAYO ALALADE
4. MRS. CAMELIA TITLOLA ALALADE
5. SAMUEL ADEMOLA ABIOYE Appellant(s)
AND
1.CHIEF TAJUDEEN SUBERU ODODO
(The Baale of Ije Ododo)
2. MRS MUJIDAT OKESOLA
3. CHIEF DADA EMMANUEL
4. MR. ABASS DISU Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
The disputed land in this matter are eleven plots of land situate at Ije Ododo, Lagos State. The Appellants’ claim to have bought the land from one Alhaja Basiratu Ododo (deceased) who is related to all the Respondents. The Appellants case is that after the death of their vendor, the Respondents trespassed upon the land consequent upon which the Appellants instituted proceedings at the High Court of Lagos State in SUIT NO. BD/2/2011: DR. JOHN OYEBIYI ALALADE & 5 ORS. vs. CHIEF TAJUDEEN SUBERU ODODO & 3 ORS.
The Appellants claimed the following reliefs:
1. A declaration that the Claimants are entitled to Statutory Right of Occupancy to the Eleven Plots of Land Situate at Ije Ododo, Lagos State shown and delineated on Compilation Survey Plans JOD/37/87 AND JOD/004/89 MADE BY Surveyor J. O. Dudu of 19, Assoland Street, Ewu Tutun, Shogunle Lagos.
2. A sum of N22 Million (Twenty-two Million Naira) being Special and General Damages for trespass.
3. Perpetual Injunction restraining the defendants jointly and severally, their agents, servants, assigns and privies from committing further acts of trespass on the said Plots of Lands.
The Respondents were served with all the Court processes but they neither filed any processes, nor did they cross examine the sole witness called by the Appellants in proof of their case. In its judgment, the lower Court dismissed the Appellants’ case. Expectedly, the Appellants were dissatisfied and they appealed against the judgment of the lower Court. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 5th March 2014, but deemed as properly filed on 17th November 2014. The scarified judgment of the lower Court which was delivered on 5th March 2013 is at pages 210-217 of the Records of Appeal.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants? Brief was filed on 23rd June 2014, while the Respondents? Brief was filed on 17th April, 2015, but deemed as properly filed on 30th April, 2015. At the hearing of the appeal, the Court was informed of the death of the original 1st Appellant on record, Dr. John Oyebiyi Alalade, whereupon his name was struck out and the remaining Appellants were renumbered seriatim. Thereafter, learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellants distilled five issues for determination, which issues were adopted by the Respondents. The said issues are:
1. WHETHER THE WITNESS STATEMENT ON OATH OF THE 1ST APPELLANT IS COMPETENT AND WHETHER THE LOWER COURT CAN DETERMINE THE SUIT ON THE BASIS OF THE WITNESS STATEMENT ON OATH.
DISTILLED FROM GROUNDS 1, 2 AND 3
2. WHETHER THE DISPARITY BETWEEN EXHIBITS B, D, E, F, K AND K1 AND THE EVIDENCE OF THE 1ST APPELLANT WITH RESPECT TO THE DATE OF THE PURCHASE OF THE LAND IN DISPUTE IS FATAL TO THE APPELLANTS CASE
DISTILLED FROM GROUNDS 4 & 6
3. WHETHER THE TRIAL JUDGE WAS RIGHT TO HAVE RAISED AND DETERMINE [sic] SUO MOTU THE ISSUE OF DISCREPANCY IN EXHIBITS B, D, E, F, K AND K1 AND THE EVIDENCE OF THE 1ST APPELLANT WITHOUT ALLOWING THE APPELLANT TO ADDRESS HIM ON IT.
DISTILLED FROM GROUND 5
4. WHETHER THERE WAS EVIDENCE IN THE WRITTEN STATEMENT ON OATH UPON WHICH THE LOWER COURT COULD HAVE GRANTED THE APPELLANTS A DECLARATION TO THE LAND IN DISPUTE
DISTILLED FROM GROUND 11
5. WHETHER THE OTHER CLAIMS OF DAMAGES AND INJUNCTION FOUNDED ON THE DECLARATORY RELIF [sic] SHOULD FAIL.
DISTILLED FROM GROUNDS 7, 8, 9 & 10.?
The above issues are apt and take their roots from the grounds of appeal. For purposes of convenience, I will consider the related issue numbers 1 and 4 together. Equally, the related issue numbers 2 and 3 will also be considered together and then issue number five separately.
ISSUE NUMBERS ONE AND FOUR
1. WHETHER THE WITNESS STATEMENT ON OATH OF THE 1ST APPELLANT IS COMPETENT AND WHETHER THE LOWER COURT CAN DETERMINE THE SUIT ON THE BASIS OF THE WITNESS STATEMENT ON OATH.
4. WHETHER THERE WAS EVIDENCE IN THE WRITTEN STATEMENT ON OATH UPON WHICH THE LOWER COURT COULD HAVE GRANTED THE APPELLANTS A DECLARATION TO THE LAND IN DISPUTE
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The quiddity of the Appellants submission is that their sole witness adopted his written statement on oath as his evidence and tendered documents which were admitted in evidence.
It was stated that the lower Court was bound to evaluate the said witness statement on oath and was wrong to have concluded that the Appellants had no evidence to back up their pleadings. The cases of FUNTUA vs. TIJANI (2011) 7 NWLR (PT 1245) 130 at 153, IDRIS vs. ANPP (2008) 8 NWLR (PT 1088) 1, AREGBESOLA vs. OYINLOLA (2011) 9 NWLR (PT 1253) 458 at 563, UDEAGHA vs. OMEGARA (2010) 11 NWLR (PT 1204) 168 at 195 among cases were referred to.
It was asserted that upon the adoption of the witness statement by the witness, the same became competent and the averments in the statement of claim therefore constituted evidence in support of the Appellants? case, which the lower Court has a duty to evaluate. Without conceding that the witness statement on oath was incompetent, it was stated that any mistake in the statement on oath was an error of counsel which should not be visited on the Appellants and that an incompetent witness statement on oath should lead to a striking out of the suit and not a dismissal.
The case of AKINPELU vs. ADEGBORE (2008) 10 NWLR (PT 1096) 531 at 557 was relied upon. It was opined that having found that there was no evidence led by the Appellants because the statement on oath is incompetent, it was approbating and reprobating for the lower Court to have gone ahead to determine the suit on the basis of an incompetent written statement on oath, instead of striking out the suit.
It is the further contention of the Appellants that the witness statement on oath of their sole witness and the exhibits tendered established their right to a declaration of title vide IDUNDUN vs. OKUMAGBA (1976) 1 NMLR 200. It was posited that the Appellants’ evidence was not controverted by the Respondents and that the lower Court failed to evaluate all the relevant exhibits tendered but restricted itself to the purchase receipts. The case of FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 567 was cited in support. It was conclusively submitted that the Appellants evidence being uncontroverted and uncontradicted discharged the burden of proof on a minimum of proof, particularly when the documentary evidence confirmed the oral testimony of the Appellants’ witness. The cases of MOGAJI vs. CADBURY FRY LTD (1972) 2 SC 97, MILITARY GOV., LAGOS STATE vs. ADEYIGA (2012) 5 NWLR (PT 1293) 291 at 331-332 & 337, NEWBREED ORG. LTD vs. ERHOMOSELE (2006) 5 NWLR (PT 974) 499 at 544-545, ESEIGBE vs. AGHOLOR (1993) 12 SCNJ 82 at 105, KIMDEY vs. MILITARY GOV., GONGOLA STATE (1988) 2 NWLR (PT 77) 445 among other cases were called in aid.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the Appellants’ witness did not state in his evidence in chief what is contained in the statement of claim as the deposition in the witness statement on oath is that he shall during his evidence testify to all the facts contained in the statement of claim, which he never did; as he merely adopted the witness statement on oath and gave no further evidence. It was opined that pleadings are not a substitute for evidence and that the Appellants failed to give evidence in support of their pleadings. The cases of IFETA vs. SPDCN LTD (2006) 8 NWLR (PT 983) 584, OKPOKO COMMUNITY BANK LTD vs. IGWE [no reference supplied], YUSUF vs. OYETUNDE (1998) 12 NWLR (PT 579) [no page stated], EZEANAH vs. ATTAH (2004) 7 NWLR (PT 873) 468 among others were referred to.
It was maintained that since pleadings is not evidence, the Appellants, who had the burden of proof, did not adduce the requisite evidence to prove their case. Sections 121 and 132 of the Evidence Act was relied upon and it was posited that the lower Court was right in refusing the case of the Appellants.
The Respondents further argue that the most relevant exhibits presented by the Appellants were the purchase receipts, the root of their title. It was contended that the purchase receipts not being reliable, there could not have been any purchase of the land and none of the other ways of proving declaration of title to land would avail the Appellants. It was asserted that there was no evidence in the witness statement on oath of the Appellants witness and that the evidence represented by the purchase receipts did not match the case of the Appellants on when they met the vendor, making the evidence conflicting and unreliable. It was conclusively submitted that the uncontroverted evidence which can establish a case on minimal proof is credible evidence.
RESOLUTION OF ISSUE NUMBERS ONE AND FOUR
The Appellants have predicated their contention on the premise that the lower Court held that the statement on oath of their sole witness was incompetent and that having so held the lower Court should have struck out the suit instead of deciding the action on the incompetent statement on oath. In a seeming volte face, the Appellants further argue that the witness having adopted the statement on oath, it was competent and the lower Court had a duty to evaluate the same. The Appellants seem to be betwixt and between; a case of wanting the two sides of a coin to be the same! The lower Court evaluates the evidence and they argue that it should not have done so because the statement on oath is incompetent. In the next breath they contend that the witness statement on oath is competent and that the lower Court was duty bound to evaluate it.
Howbeit, it is an established principle of law arising from the logic of reasoning that where there is a misconception as to the nature of the decision made by a Court, then in all probability, a wrong conclusion will invariably be arrived at as a result of the said misconception. See UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT. 836) 136 at 152 and LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT I) 159 at 169. The Appellants, labouring under the misconception that the lower Court held that the witness statement on oath of their sole witness was incompetent have tied themselves in knots resulting in their blowing hot and cold at the same time in their submissions. The lower Court, however, did not hold that the statement on oath is incompetent. Hear the lower Court at pages 212-213 of the Records:
‘Now as noted above in this judgment, the 1st Claimant adopted his 5 paragraphs statement on Oath as his evidence-in-chief. He was not cross-examined as to the content of his statement on Oath. By his statement on Oath, paragraphs 3 and 4 thereof, the 1st Claimant deposed that he confirms and repeats all the averments and pleadings in the statement of claim and that during trial he will testify to all the facts contained in the statement of claim as well as tender all documents listed in the schedule of documents to be relied upon.
The foregoing is the evidence-in-chief of the 1st Claimant.
The question now is whether the content of the statement of Oath, which is the evidence-in-chief, is sufficient evidence to sustain the reliefs sought.
By the Rules of Court, all civil proceedings commenced by a Writ of Summons shall be accompanied by written statements on Oath of the witnesses except witnesses on subpoena – see Order 2 Rule 2 (1) (c) of the High Court of Lagos State (Civil Procedure) Rules 2004 and 2012.
By the provision of Order 32 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules 2004 and 2012, any fact requiring to be proved at the trail [sic] of any action shall be proved by written deposition and oral examination of witnesses in open Court.
The meaning of ‘statement’ in The New Webster’s Dictionary is described as ‘the art of stating in speech, writing etc.’ ‘Oath’ in the same dictionary is described as ‘the invoking of God or some sacred or revered person or thing as witness of the truth of a statement or the binding nature of a promise’. ‘A prescribed form used in making such a statement or promise.’
A communal reading of the meaning of these words, ‘statement’ and ‘Oath’, will show that a statement on Oath is what is written and made on Oath which has invoked the name of God. Thus, anything not within or not contained in the statement cannot be said to invoke the name of God. This being the case, it is the view of this Court that the 1st Claimant has not deposed as required by the Rules of Court to the evidence he sought to rely upon during trial.
Confirming and repeating all the averments and pleadings in the statement of claim, as deposed to in the statement on Oath adopted as his evidence-in-chief does not satisfy the requirement that evidence of any fact that is required to be proved at trial shall be proved by written deposition of a witness.
By this observation of the Court, it thus means that the averments as contained in the statement of claim have no evidence to rest upon, as pleadings do not constitute evidence. Evidence not giving [sic] to back up pleadings during trial, means that the fact or facts in the pleading has not been proved.
The law is that a party who pleads a fact must adduce evidence in support of such pleaded facts. Neither the pleadings nor the most forensic eloquence of any brilliant lawyer can be substitute for evidence that was not given. See NEKA V ACB (supra) and ODUWOLE V WEST (2010) Vol. 5-7 (PT IV) M.J.S.C PG 1.
The conclusion thus is that the Claimants have no evidence to back up their pleadings. In ODUWOLE V WEST (supra), it was held that pleadings and forensic eloquence of a brilliant lawyer do not constitute evidence. Therefore, any averment of facts in a pleading but not given in evidence are deemed abandoned and must be discountenanced.
By this conclusion of the Court, the Court finds that the Claimants have led no evidence to support their pleadings. In this respect, the Claimants have not proved that they are entitled to the reliefs sought.
So the decision of the lower Court is that the witness statement on oath did not constitute evidence that would prove any pleaded facts; not that it is incompetent. The pertinent question is whether the lower Court was right in this regard.
It is now settled law that where facts in the pleadings of a party are not activated by evidence being led on them, the said pleadings are deemed as abandoned. See HOUSING CORPORATION vs. EMEKWUE (1996) 1 SCNJ 93 at 133, HONIKA SAWMILL (NIG.) LTD vs. HOFF (1994) 2 NWLR (PT 326) 252 and IRONBAR vs. CROSS RIVER BASIN RURAL DEVELOPMENT AUTHORITY (2004) 2 NWLR (PT 857) 411 at 431A-B.
In the words of Niki Tobi, JCA (as he then was) in AJIKAWO vs. ANSALDO (1991) 2 NWLR (PT 173) 359 at 375C-F:
‘Pleadings though drafted by Solicitors and Advocates after receiving litigation instructions from their clients, cannot speak or talk in Court. This is because they do not have the mouth to speak or talk. They have not the capacity or power to demonstrate in Court. They cannot give the Court a precise and concise pictorial view of the events pleaded therein beyond this language. Accordingly, pleadings however brilliantly written, cannot take the place of oral evidence in Court in a matter which is contentious and contested. In such a situation, pleadings lie helplessly in the case file, waiting anxiously for their owner, through counsel, to make the best use of them. And this the owner can do only by oral evidence to awaken the apparently dead averments. If the owner, like the owner of any property decides not to make use of them or neglects to make use of them or fails to make use of them, the law deems them to have been abandoned. The averments are moribund. This is because since the owner has not given life to the pleadings by way of leading evidence in proof of the averments therein, they are as good as not written at all in the first place. The sentences, words and the letters which make up the pleadings are dead, and completely dead, and of no evidential or probative value.’ See also OJOH vs. KAMALU (2005) 18 NWLR (PT 958) 523 at 565G-H, IFETA vs. SHELL (2006) SCNJ 111 at 119, OJO vs. GHARORO (2006) 3 SCNJ 52 at 68 and CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 36.
Furthermore in OGUNYADE vs. OSHUNKEYE (2007) 15 NWLR (PT 1057) 218 at 246, Niki Tobi, JSC stated:
‘It is merely saying the obvious that the pleadings do not have the brain and the mouth to talk and so they need the human being with the automation of the brain, mind and mouth to express the contents of the pleadings in open Court. Where the human being…, fails to talk, for the statement of defence, that seems to be the end of the road for the defendant.’
I will set out in extenso, the terse and laconic five paragraph witness statement on oath of the Appellants sole witness to see if it is of a quality that activated, awakened and spoke to the averments in the eleven paragraph statement of claim, paragraph 10 of which has thirty sub-paragraphs. The witness statement on oath reads:
I, JOHN OYEBIYI ALALADE, Male, Nigerian, Medical Doctor of 67, Oshodi Abeokuta Express Road, Dopemu, Agege, Lagos do solemnly make oath and slate [sic] as follows:-
1. That I am the 1st Claimant in this case and by virtue of my position conversant with all the facts thereof.
2. That I have the authority of the 2nd, 3rd, 4th, 5th and 6th joint Claimants in this action to depose to this affidavit.
3. That I confirm and repeat all the averments and pleadings in paragraphs 1,2,3,4,5,6,7,8,9,10 and 11 of the Statement of Claim prepared by our Solicitor, Olusegun A. Alalade Esq, in the case.
4. That I shall during my evidence in this case testify to all the facts contained in the aforesaid statement of Claim as well as tender all the documents listed in the schedule of documents to be relied upon by the claimants in this case at the trial.
5. That I depose to this affidavit in good faith believing in the truth of its contents.
(See page 16 of the Records)
It is clear that the operative and major parts of the witness statement on oath are paragraphs 3 and 4. In paragraph
3, it is deposed that all the averments in the statement of claim are confirmed and repeated. Now, if the law is that evidence has to be adduced to awaken and put to use the averments in the statement of claim, the testimony of a witness which is that ?I confirm and repeat the averments in the pleadings? does not amount to any proof of the pleaded facts since the pleadings do not constitute evidence and evidence will be required to establish the pleaded facts.
The Appellants apparently appreciated that the deposition in paragraph 3 of the witness statement did not amount to proof of any fact, hence the deposition in paragraph 4 of the said witness statement on oath that the witness will during evidence in the case testify to all the pleaded facts. Unfortunately, the Appellants sole witness did not testify to prove the pleaded facts. He merely referred to the witness statement on oath and then documents were admitted in evidence. The testimony of the sole witness at page 3 of the Records shows thus:
‘CW1 My name is John Oyebiyi Alalade. I live at 67 Oshodi, Abeokuta Expressway, Dopemu Lagos State. I am husband to 2nd Claimant and father to the other Claimants. The Defendants trespassed on the land I bought from their mother and nephew. Yes, I deposed to a statement on oath dated 10th January 2011. I want the Court to grant my claims. Yes, in my statement on oath I referred to some documents. These at the documents.
Alalade: I seek to tender them.’
Interestingly, contrary to the Appellants’ submissions, the Appellants sole witness did not even adopt the witness statement on oath as his testimony. Be that as it may, the lower Court was right when it held that the deposition in paragraph 3 of the witness statement on oath did not amount to proof of the pleaded facts. A fortiori, the witness failed to adduce further testimony as stated in paragraph 4 of the witness statement on oath to prove the pleaded facts. Without a doubt, the decision of the lower Court that there was no testimonial evidence led in respect of the pleaded facts is the correct decision. These issue numbers one and four are resolved against the Appellants.
ISSUE NUMBERS TWO AND THREE
2. WHETHER THE DISPARITY BETWEEN EXHIBITS B, D, E, F, K AND K1 AND THE EVIDENCE OF THE 1ST APPELLANT WITH RESPECT TO THE DATE OF THE PURCHASE OF THE LAND IN DISPUTE IS FATAL TO THE APPELLANTS CASE
3. WHETHER THE TRIAL JUDGE WAS RIGHT TO HAVE RAISED AND DETERMINE SUO MOTU THE ISSUE OF DISCREPANCY IN EXHIBIT B, D, E, F, K AND K1 AND THE EVIDENCE OF THE 1ST APPELLANT WITHOUT ALLOWING THE APPELLANT TO ADDRESS HIM ON IT.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the discrepancy in the purchase receipts tendered as Exhibits which the lower Court stated was unexplained was not on a material point and that there was nothing contradictory in the evidence. The cases of ONUBOGU vs. THE STATE (1974) 9 SC 1, OGIDI vs. THE STATE (2003) 9 NWLR (PT 824) 1 at 24 and EZEMBA vs. IBENEME (2004) 14 NWLR (PT 894) 617 at 652 – 653 were referred to.
It was asserted that the inference to be drawn from the pleadings and the evidence of the Appellants sole witness is that the purchase receipts were a confirmation that an agreement was reached and eleven plots were sold by the vendor to the Appellants. That any minor difference in detail was not material to warrant a rejection of the evidence, especially in circumstances where the Respondents did not join issues with the Appellants and resolving the seeming discrepancy in favour of the Appellants would not have occasioned a miscarriage of justice. The cases of WACHUKWU vs. OWUNWANNE (2011) 14 NWLR (PT 1266) 1 at 27 and EZEMBA vs. IBENEME (supra) were relied upon.
The Appellants maintain that the Court is not to make a contract for the parties vide OMEGA BANK vs. OBC LTD (2005) 8 NWLR (PT 928) 547 at 574-575; and that parties are free to determine the commencement date for the their contract and it is not the business of the Court to worry about or read negative meanings into the date the parties choose, especially where the same was not challenged by the opposing party.
It was further argued that the lower Court raised the issue of the discrepancy in the purchase receipt suo motu and resolved the same without hearing the parties on the issue, thereby breaching the principles of fair hearing. The cases of ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410, OTAPO vs. SUNMONU (1987) 2 NWLR (PT 58) 587 at 605, AROWOLO vs. AKAIYEJO (2012) 4 NWLR (PT 1290) 286 at 306 and OGUNDELE vs. AGIRI (2010) 18 NWLR (PT 1173) 219 were cited in support. It was conclusively asserted that by the purchase receipts, the Appellants satisfied the burden of proof on balance of probability, more so when the Respondents did not present any evidence.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents maintain that the disparity in the purchase receipts was fatal to the Appellants’ case. It was stated that evidence which is ridiculous and conflicting cannot be taken as credible, even if uncontroverted. The Court, it was opined, is duty bound to reject such evidence, especially where the conflict and contradiction is not clarified by the witness. The cases of MAKINDE vs. AKINWALE (2000) 2 NWLR (PT 648) 433 at 450 and OSADIM vs. TAIWO (2010) 6 NWLR (PT 1189) 155 at 180 were called in aid.
It is the further submission of the Respondents that the Court has a duty to scrutinize the evidence of the parties in evaluating their case, even where one of the parties did not call evidence vide ABIMBOLA vs. ABATAN (2001) 10 NWLR (PT 478) [sic] 265. It was stated that the Appellants must adduce credible evidence to discharge the burden of proof on them and where the facts do not prove a case, it is not a point of law on which the parties can be called upon to address the Court. It was posited that the address of counsel cannot be a substitute or make up for lack of evidence required to prove and establish a case. The cases of VASSILEV vs. PAAS INDUSTRY LTD (2000) 12 NWLR (PT 681) 347 at 355, OBASUYI vs. BUSINESS VENTURES LTD (2000) 5 NWLR (PT. 658) 690 and SANYAOLU vs. INEC (1994) 7 NLWR (PT 612) 600 at 611 were referred to.
RESOLUTION OF ISSUE NUMBERS TWO & THREE
I have already set out the reliefs claimed by the Appellants. The principal relief claimed is for a declaration of entitlement to a statutory right of occupancy over the disputed land. The other reliefs for damages for trespass and perpetual injunction are leeches, the success of which depend on the principal relief. The Appellants having claimed for a declaration must adduce evidence to prove the same, notwithstanding the fact that the Respondents did not defend the action. The relief of declaration is not granted in default of defence without evidence being adduced in proof of entitlement to the declaration sought: BELLO vs. EWEKA (1981) 1 SC 101, DIM vs. ENEMUO (2009) 10 NWLR (PT 1149) 353, OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81, IROAGBARA vs. UFOMADU (2009) 11 NWLR (PT 1153) 587, HAWAD INTERNATIONAL SCHOOL LTD vs. MIMA PROJECTS VENTURES LTD (2005) 1 NWLR (PT 908) 552 and SHESHE vs. NATAWA (2015) LPELR (25912) 1 at 28-30.
It is hornbook law that a claimant for a declaration of title to land must succeed on the strength of his case and not on the weakness of the defendant’s case or want of a defence, except where the defendant’s case supports the claimant?s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 141, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19-20. Even though the Respondents did not file a statement of defence and did not adduce any challenging or controverting evidence, it was still for the Appellants to establish the declaration sought over the disputed land. The heavy burden of proving title to the disputed land rested squarely on the Appellants.
There was no duty on the Respondents to prove their title. See ADEKANMBI vs. JANGBON (2007) ALL FWLR (PT 383) 152 at 160, 163 and 165 and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 at 1477. This becomes more so when the Appellants case is that they bought the disputed land from a relation of the Respondents.
The case made out by the Appellants on their pleadings is that the deceased original 1st Appellant, who was the sole witness of the Appellants at the trial, got to know the vendor of the land when he treated her as a patient sometime in 1983/1984. Thereafter, the vendor offered him the eleven plots of land for purchase and he purchased the same and purchase receipts were issued. (See paragraphs 10 (a) ? (f) of the Statement of Claim at pages 10-12 of the Records). The purchase receipts were admitted in evidence as Exhibits B, D, E, F, K and K1. The said purchase receipts are dated 23rd April 1975 and were tendered in proof of the land transaction which took place after the original deceased 1st Appellant had met the vendor for the first time sometime in 1983/1984. So the proof of purchase relied on by the Appellants to show purchase of a land which took place after they met the vendor in 1983/1984 are purchase receipts dated about eight or nine years before they met the vendor.
It is the trial Court that sees the witnesses, hears their testimony and observes their demeanour. It therefore has the primary duty of evaluating and ascribing probative value to the evidence adduced. In its duty of perception of evidence, id est, receive all available relevant evidence on an issue, the lower Court admitted the purchase receipts in evidence. Having admitted them in evidence, it next had the duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence, after which it makes a finding of fact on the evidence. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT. 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 – 51.
In evaluation of evidence, the Court assesses the evidence to determine whether it preponderates in favour of the basic proposition which it seeks MOGAJI vs ODOFIN (1978) 4 SC 91, ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182, AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9 and OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26. In the diacritical circumstances of this matter, whether the purchase receipts dated 23rd April 1975 establish the purchase of land from a vendor the Appellants only first met in 1983/1984. I have already set out a periscope of the evidence of the Appellants sole witness. There is no explanation from the witness as to how the purchase of land that was offered to him for purchase after he met the vendor sometime in 1983/1984 is evidenced by purchase receipts dated 23rd April 1975.
In ascribing probative value to the evidence the lower Court made the following unassailable findings of facts at page 215 of the Records:
‘I think it ought to be stated that also from the pleading of the Claimants, especially paragraphs 10(a) – (e) (vii) of the statement of claim, the 1st Claimant got to know the late vendor of the land, Alhaja Basiratu Ododo, when the 1st Claimant treated her as one of his patients sometime in 1983/1984 (italics mine). Later, the late vendor with a Surveyor Assistant, one Mr. Ajibade, severally visited the 1st Claimant, and during one of this [sic] visits, the 1st Claimant was offered 11 (eleven) plots of land belonging to the late vendor to purchase. The 1st Claimant thereafter accepted to purchase 11 (eleven) plots of land for himself and the other Claimants. An agreement was reached and the 11 (eleven) plots of was purchased. The purchase of the 11 (eleven) plots of land are evidence by 7 (seven) different receipts all dated 23rd April 1975. (italics mine).
As noted above, it (is) the duty of a Judge to review the evidence placed before him, evaluate it, giving reasons thereof before making a finding. The Judge considers the evidence of both parties, and puts them on the imaginary scale, weigh it and decide upon the preponderance of credible evidence which has more weight. The primary role of a Court of law is to do substantial justice based on the evidence produced before it. A Judge should not sit in ignorance of the facts presented before it which may lead to injustice.
‘The Claimants, through the 1st Claimant tendered exhibits B, D, E, F, K and K1. These exhibits are receipts in which the Claimants intend to prove the purchase of the portions of land from the late vendor. These receipts are all dated 23rd April 1975, meaning the purchases were all done on 23rd April 1975.
However a scrutiny of the evidence above shows that the 1st Claimant only got to know the late vendorsometime [sic] in 1983/1984 (italics mine). Thereafter, that is after getting to know the late vendor sometime in 1983/1984 (italics mine); the late vendor and the 1st Claimant had some transaction which resulted in the purchase of the land in which the Claimants are seeking for a declaration. Now, by the evidence produced by the 1st Claimant, he bought the portions of land after the first meeting with the late vendor sometime in 1983/1984 (italics mine). If this be the case, it then becomes a miracle that receipts evidencing the purchases of these 11 (eleven) plots of land can be dated 23rd April 1975 (italics mine) nearly 10 years before the late vendor and the 1st Claimant ever met. This discrepancy was not explained to the Court by the 1st Claimant who gave evidence. To the Court, the evidence of the Claimants fly in the face of common sense in that purchases of 11 (eleven) plots of land is made well before the meeting of parties or minds!’
The lower Court then conclusively held at page 216 of the Records:
‘The Claimants having not explained how they bought the 11 (eleven) portions of land, all on 23rd April 1975, about 10 years before the ‘knowing’ of the late vendor sometime in 1983/1984, when the late vendor became the 1st Claimant’s patient, have not come to the Court with clean hands. The Court is not satisfied with the evidence proffered by the Claimants with respect as to the exact time of purchase of these 11 (eleven) portions of land. This being the case, the Court will refuse the declaratory relief sought.’
I am not enthused by the Appellants contention that the discrepancy in the purchase receipts having been issued long before the vendor met the Appellants and offered the land for sale is minor. It is not. It goes to the fons et origo of the Appellants claim of entitlement to the land by purchase and the issuance of the purchase receipts evidencing the transaction. The discrepancy having not been explained was fatal to the Appellants claim for a declaratory relief and the lower Court rightly so held.
It is rudimentary law that evidence even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT. 313) 588, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659: ‘The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak, that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff’.
It seems to me preposterous and ludicrous for the Appellants to think that the lower Court would have accepted the testimony of their sole witness hook, line and sinker, without evaluating the same, merely because the Respondents did not contest the action. While it is correct that the burden of proof in such circumstances will be discharged upon minimal proof; there must still be that minimal proof for the burden to have been discharged and the Court must evaluate the evidence to ascertain that the threshold was reached.
In FAWEHINMI vs. AKILU (1987) 4 NWLR (PT 67) 797 at 843, Eso, JSC stated:
‘A judge is certainly not a robot nor an automation who once he is fed data produces an automatic answer. In every action before his Court, in every step taken by a Judge, his discretion is called into play whether in interpreting the law or in deciding an action one way or another. If it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating data which are fed into a machine called judex.?
Equally, in MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1345, Pats-Acholonu, JSC held:
‘… it must be equally admitted that Judges are not robots (or zombies) who have no mind of their own … They are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due.?
I am unable to agree with the Appellants that the lower Court raised the issue of the shortcomings in the purchase receipts relied on by the Appellants in proof of their title suo motu. The lower Court in its duty of perception of evidence admitted the purchase receipts in evidence; it had the duty to evaluate the same and ascribe probative value thereto. The assessment of the evidence before the Court to ascertain how the evidence preponderates is not raising an issue suo motu. It is the reasoned and informed belief by the lower Court of how the evidence preponderates and what informed the lower Court arriving at the conclusion that the Appellants did not prove their case.
The valiant efforts of the Appellants? counsel to import the principle of fair hearing in this matter are not availing. The complaint of breach of fair hearing can only be raised and avail a litigant when, in fact, the right had been denied. The admonition of apex Court in this regard is instructive. Hear Tobi, JSC in ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 23-24:
‘Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.
See also KOLO vs. COP (2017) LPELR – 42577 (SC) and BROSSETTE MANUFACTURING LTD vs. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (PT 1053) 109 at 139.
Furthermore in MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 or (2008) LPELR (1814) 1 at 40, Tobi, JSC observed as follows:
‘It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.’ See also ORUGBO vs. UNA (2002) 16 NWLR (PT 792) 175 at 211 and 212.
The Appellants miss the mark in their attempt to drag the fair hearing principle into this matter. They have no place whatsoever given that the product of the evaluation of the evidence by the lower Court is not the raising of an issue suo motu, requiring it to afford the parties a hearing. These issue numbers two and three are accordingly resolved in favour of the Respondents.
ISSUE NUMBER FIVE
WHETHER THE OTHER CLAIMS OF DAMAGES AND INJUNCTION FOUNDED ON THE DECLARATORY RELIEF SHOULD FAIL
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants argue that it is not automatic that where a claimant fails to prove title to land that the other claims founded on the declaratory relief will fail. It was stated that the lower Court should have considered the evidence of possession to ascertain whether the Appellants were entitled to the special and general damages claimed, since the Appellants were shown to have been disturbed in their possession of the land. The cases of GONZEE (NIG) LTD vs. NERDC (2005) 13 NWLR (PT 943) 634, AWO OMAMMA vs. NWOKORO (2012) 14 NWLR (PT 1321) 488 at 515-516, SBN PLC vs. CBN (2009) 6 NWLR (PT 1137) 237 and NNB PLC vs. DENCLAG LTD (2005) 4 NWLR (PT 916) 549 were referred to.
It was posited that trespass to land constitutes that slightest disturbance to the possession of land by a person who cannot show a better right to possession vide SOLOMON vs. MOGAJI (1982) 11 SC 1 at 37, RENNER vs. ANNAN (1935) 2 WACA 258, FAGUNWA vs. ADIBI (supra) at 569, AMAKOR vs. OBIEFUNA (1974) 3 SC 67 at 75 -76 among other cases.
It was further submitted that injunctive relief is parasitic on the other reliefs and that the Appellants having proved trespass to the disputed land, their claim for injunction should automatically succeed. The cases of EZE vs. OBIEFUNA (1995) 6 NWLR (PT 404) 639, ANIBIRE vs. WOMILOJU (1993) 5 NWLR (PT 295) 623, OMOTAYO vs. CSA (2010) 16 NWLR (PT 1218) 1 at 31-32, ENANG vs. ADU (1981) 11-12 SC 25 and ADEGBITE vs. OGUNFAOLU (1990) 4 NWLR (PT 146) 578 were relied upon.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents maintain that the consequence of the failure of the claim for title is the failure of other consequential reliefs. It was stated that special damages is strict and must be specifically pleaded and proven and that the Appellants did not specifically plead any particulars of special damages or provide any evidence in strict proof of the special damages claimed. The cases of OWOEYE vs. WEMA BANK LTD (2001) 9 NWLR (PT 717) 1 and DUMEZ (NIG) LTD vs. OGBOLI (1972) 1 ANLR 241 were cited in support. The general damages claimed, it was equally submitted, was not proved by the Appellants who had the burden of proving the same. It was conclusively submitted that injunction can also not be granted where the ground or basis of ownership or title to the subject land has failed.
RESOLUTION OF ISSUE NUMBER FIVE
It has to be remembered that the case of the Appellants as pleaded is that the Respondents are the sibling and children of their deceased vendor (see paragraphs 6-9 of the Statement of Claim at page 10 of the Records). The implication is that the Respondents would have a better right to possession of the disputed land unless the Appellants establish their claim of the disputed land having been sold to them. I have already held that the lower Court rightly held that the Appellants did not establish their entitlement to the declaration sought. The pertinent question that follows is: since the quo warranto of the Appellants’ claim to declaration of title to the disputed land has failed, are they entitled to the reliefs for damages and injunction
The Appellants submit that it is not automatic that where the claim for title fails, that the other claim founded would equally fail. Indeed, as a broad principle of law, the claim for trespass is not dependent on a claim for declaration of title, since the claim for trespass is predicated on actual possession of land and the trespass on to the land by another person. It is however rudimentary law that in circumstances where trespass and injunction is claimed and it appears that the defendant claims ownership of the land, then title is in issue and in order to succeed the claimant must prove better title than the defendant. See AMAKOR vs. OBIEFUNA (supra).
The concomitance of the lower Court having held that the Appellants did not prove that their vendor, the sibling and mother of the Respondents, sold the disputed land to them, means that any possessory acts exercised by the Appellants on the disputed land are merely trespassory acts. In the diacritical circumstances of this matter, the Appellants needed to prove their title to the disputed land, as any acts of possession exercised by them would be good against the whole world except the person with a better title or right to possession, in which case those acts of possession become acts of trespass. See FASORO vs. BEYIOKU (1988) 2 NWLR (PT 76) 263 at 273-274, IRAWO vs. ADEDOKUN (2005) 1 NWLR (PT 905) 199 at 215, OKHUAROBO vs. AIGBE (2002) 9 NWLR (PT 771) 29 and SKYE BANK vs. AKINPELU (2010) 9 NWLR (PT 1198) 179 or (2010) LPELR (3073) 1 at 42.
In order for acts of possession to be ownership of a disputed land, the party who seeks to rely on such acts of possession and enjoyment of the land must succeed in establishing his root of title to the land, such that the acts of possession and enjoyment of the land will be seen as flowing from his root of title in order to properly qualify as acts of ownership over the disputed land: LAWAL vs. OLUFOWOBI (1996) 10 NWLR (PT 477) 177 at 188 and AJIKANLE vs. YUSUF (2008) 2 NWLR (PT 1071) 301 at 340. This is so because where a person exercising acts of ownership, possession and enjoyment of land does not have any right to the land, such possessory acts remain acts of trespass; the said possessory acts would not rise to become acts of possession and enjoyment of the land on the basis of which it can be said that title to land has been established or entitling the person to award of damages for trespass and injunction: ALLI vs. ALESINLOYE (2000) 4 SC (PT I) 111 and EZEKWESILI vs. AGBAPUONWU (2003) 4 SC (PT I) 33 at 49. Accordingly, the Appellants having failed to establish their entitlement to the declaration sought by establishing a better title than the Respondents cannot be heard to contend that the lower Court should have entered judgment in their favour in respect of the claim for damages for trespass and perpetual injunction.
There is a further aspect. It is settled law that special damages are not only to be specifically pleaded and particularized but must also be proved by the evidence. See DANIEL HOLDINGS LTD vs. UBA PLC (2005) 13 NWLR (PT 943) 533, RCC NIGERIA vs. ROCKONOH PROPERTY CO. LTD (2005) 10 NWLR (PT 934) 615 at 637 and ADECENTRO (NIG) LTD vs. COUNCIL OF OAU (2005) 15 NWLR (PT 948) 290 at 316. The Appellants claimed the sum of N22million as special and general damages for trespass.
The particulars of special damages were not pleaded, there is therefore no basis for the foofaraw made by the Appellants that the lower Court should have awarded them the damages claimed. The decision of the lower Court dismissing the reliefs for trespass and injunction is the correct decision and there is no basis for an appellate Court to interfere. This issue number five is therefore resolved against the Appellants.
All the issues thrust up for determination in this appeal have been resolved against the Appellants. The concatenation is that the appeal is devoid of merit. The appeal is dismissed and the judgment of the lower Court, Coram: Oshodi, J. is affirmed. There shall be costs of N100, 000.00 in favour of the Respondents.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in complete agreement with the judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A., which I had the advantage of reading in print.
TOBI EBIOWEI, J.C.A.: The Appellant in this appeal at the lower Court as Claimant sought for declaration for title to the statutory right of occupancy over 11 plots of land situate at Ije Ododo, Lagos State shown and delineated on compilation Survey Plans JOD/37/87 and JOD/004/89 made by surveyor 1.0. Dudu of 19 Assoland Street, Ewu Tutun, Shogunle, Lagos. As usual, he also claimed for damages and perpetual injunction. The lower Court in the judgment dismissed all the claims of the Appellant. He appealed to this Court and after due consideration, my learned brother, Ugochukwu Anthony Ogakwu, JCA in the lead judgment just delivered (which I had the privilege of reading in draft) dismissed the appeal. As ably demonstrated in the lead judgment, the Appellant failed to prove that he is entitled to the judgment.
I wish just to add a thing or two on the lucid judgment delivered by my Learned brother, Ugochukwu Anthony Ogakwu, JCA. From the evidence before the lower Court, it is clear that there is no evidence before it worthy of consideration by the Appellant to warrant judgment been delivered in their favour. In the first place, I entirely agree that paragraphs 3 & 4 in the Appellants’ written deposition do not amount to sufficient evidence or indeed any evidence before the lower Court to prove that the Appellant is entitled to the claim.
All the Appellants did were to refer to the pleadings. That means that the written deposition is standing on the pleading as it is. The life of the written deposition is dependent on the pleadings. Paragraphs 3 & 4 only referred to the dry pleading and nothing more. The law is trite; the pleading alone does not amount to evidence. See Abue vs. Egbelo & Ors (2017) LPELR 43483 (CA); FCDA vs. Naibi (1990) 5 SC (Pt. 11) 79; Akande vs. Alaga (1988)4 NWLR (Pt. 86) 1. Since paragraphs 3 & 4 of the written deposition does not amount to evidence, paragraphs and 11 of the statement of claim is deemed abandoned since there is no evidence in support of those averments in the pleading. The pleading is therefore worthless. In Ogbumgbada vs. Ogbumgbada & Ors (2018) LPELR 44291 (CA), this court held:
“In CAMEROON AIRLINES V. MIKE E. Otutuizu (2011) LPELR 827 (SC) the Supreme Court held per RHODES-VIVOUR, JSC on page 36 paragraphs C D thus:-
Averments in pleadings are facts as perceived by the party relying on them. There must be oral or/and documentary evidence to show that the facts pleaded are true. Consequently pleadings without evidence to support it are worthless.
This Court also made similar pronouncement on failure to call evidence in support of pleadings and its effect inAMBASSADOR YAHAYA KWANDE & ANOR V AIR MARSHAL MOUKTAR MOHAMMED (RTD) ORS (2014) LPELR 22575 (CA) per GUMEL JCA On pages 38 39 paragraphs F A as follows:-
The 1st Respondent did not lead any oral evidence and did not adduce any documentary evidence in support of any of the averments in the joint Statement of defence. It is so trite and it can be held without much ado that the 1st Respondent is deemed to have abandoned his defence to the claim of the Appellants. There must be oral and/or documentary evidence to show that the pleaded are true, consequently, pleadings without evidence to support them are worthless and of no significance at all.
The 8 paragraphs pleadings of the 3rd Respondent is on pages 92-93 of the record of appeal. He even filed a list of witnesses including himself on page 94 of the records and his written deposition on pages 95-96 of the record of appeal. Having failed to call evidence to support his pleadings and his witness deposition on oath, it is my holding that they are deemed abandoned and thus worthless. Same are hereby Struck out.”
There is therefore no evidence upon which the lower Court could have given judgment in favour of the Appellants.
The evidence of the documents is also not useful as clearly it is based on a lie. The receipt relied upon is made in 1975 while the evidence showed that the property was sold to him in 1983. The property was said to the Appellants by the vendor, 8 years before they ever met or known each other. How possible is this. Not possible at all. This kind of evidence cannot stand even if there is no evidence on the other side challenging it. It is not all unchallenged evidence that is admissible. For instance, an averment or evidence that Warri is the capital of Nigeria cannot be accepted by the most patriotic Judge of Delta State even if such an averment is not challenged. This is because this is obviously a lie. See Akaninwo & ors vs. Nsirim & ors (2008) 2 FWLR (pt 421) 2796; Arab Construction Ltd & Anor vs. Isaac (2012) LPELR 9787 (CA).
For the above and for the fuller reasons contained in the lead judgment by my learned brother, Ugochukwu Anthony Ogakwu, JCA. I also dismiss this appeal and affirm the decision of the lower Court. I abide by the order as to cost.
Appearances:
Taiwo Adedeji, Esq. For Appellant(s)
A.A. Ologundudu, Esq. with him, O. J. Sasore, Esq.For Respondent(s)
