OLADUGBAGBE v. OBI & ANOR
(2020)LCN/15219(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, March 24, 2020
CA/IB/111/2016
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Nonyerem Okoronkwo Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
DANIEL OMOLAYO OLADUGBAGBE APPELANT(S)
And
1.MR. FRANCIS CHUKWUMANJO OBI 2.MR. OLADELE ALEBIOSU RESPONDENT(S)
RATIO
WHETHER OR NOT A CLAIMANT CAN INTRODUCE A NEW ISSUE IN HIS REPLY WITHOUT THE LEAVE OF COURT
It is however the settled position of law that a Claimant cannot introduce a new issue in his Reply without the leave of Court. See OLUBODUN & ORS VS LAWAL & ANOR. (2008) 17 NWLR (PT. 1115)1; OJE & ANOR VS. BABALOLA & ORS (1991) 4 NWLR (PT. 185)267; UGHUTEVBE VS. SHONOWO & ANOR (2004) 16 NWLR (PT. 899)300. PER OJO, J.C.A.
WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT ACTION
The law is trite that a counter-claim is an independent action. It may be related to the principal action but it need not arise out of the same transaction. As a cross action, its fate is not dependent on the outcome of the claim of the original Claimant. See OROJA & ORS VS. ADENIYI & ORS (2017) 6 NWLR (PT. 1560) 138; LOKPOBIRI VS. OGOLA & ORS (2016) 3 NWLR (PT. 1499)328; ATIBA IYALAMU SAVINGS AND LOANS LTD VS. SUBERU & ANOR. (2018) 13 NWLR (PT. 1637)387. InOGBONNA VS. ATTORNEY-GENERAL OF IMO STATE & ORS (1992) 1 NWLR (PT. 220) 633, Nnaemeka-Agu, JSC held thus:
“I believe it has been settled by several decided cases that a counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a Court so grants leave. Indeed, not only can a defendant apply for summary Judgment on his counter-claim but also a Plaintiff may counter-claim on Defendant’s counter-claim (see Renton Gibbs & Co. v Neville (1900) 2 Q.B. 818).
So, where a Defendant counter-claims against the Plaintiff the latter is duty bound to file a Reply in Defence to the counter-claim, otherwise the Court is entitled, in fact obliged, to assume that the Plaintiff has no defence to the counter-claim and may enter Judgment for the Defendant accordingly. See an example on this: Nigerian Housing Development Society Ltd v Mumuni (1977) 2 S.C. 57. PER OJO, J.C.A.
WHETHER OR NOT A PARTY CAN INVOKE THE PRINCIPLE OF FAIR HEARING WHERE HE HAS A RIGHT TO BE HEARD BUT WAS DENIED
Let me mention here that a party would be entitled to invoke the principles of fair hearing where he has a right to be heard but was denied. Where no such right is guaranteed under the law or rules of Court, the issue of fair hearing would not arise. See SOSANYA VS. ONADEKO (2005) 2 SC (PT. II)13; DICKSON OGUNSEINDE VIRYA FARMS LTD VS. SOCIETE GENERALE BANK LTD & ORS (2018) 9 NWLR (PT. 1624)230 AND OLATUNBOSUN VS. NISER COUNCIL (1988) 3 NWLR (PT. 80)25. PER OJO, J.C.A.
WHETHER OR NOT A DOCUMENT REJECTED IN EVIDENCE HAS NO EVIDENTIAL VALUE
The law is settled that a document rejected in evidence and so marked has no evidential value. See NIGERIAN PORTS PLC VS. BEECHAM PHARMACEUTICAL LTD & ANOR (2012) 18 NWLR (PT. 1333)454; WASSAH & ORS VS. KARA & ORS (2015) 4 NWLR (PT. 1449)374; OLADELE & ORS VS. AROMOLARAN II & ORS (1996) 6 NWLR (PT. 453)180.
At the proceedings of the lower Court on 6th July, 2015, the 1st Respondent attempted to tender in evidence the Surveyor-General’s Report sent directly to the Court. The Appellant objected. The relevant proceedings are at pages 721 – 723 of the record. The Learned Trial Judge at page 723 held as follows:
“In conclusion I am in agreement with Mr. Afuape that the letter of Bureau of lands and survey dated 11th July, 2014 cannot be tendered again by the Claimant Counsel. It may at best be identified by the subpoenaed witness.
The document is rejected as exhibit as it forms part of the Courts records.”PER OJO, J.C.A.
FOLASADE AYODEJI OJO J.C.A.(Delivering the Leading Judgment): The instant appeal is against the judgment of the Ogun State High Court, Ota Judicial Division delivered on 29th February, 2016 in Suit No. HCT/186/2009.
By a Writ of Summons filed on the 10th of July, 2009 and a Statement of Claim filed on the same date, the 2nd Respondent as Claimant instituted an action against one Mr. Sanyaolu, Mr Goodluck Evugbanu and Mr. Anthony Obi whose name was changed to Francis Chukwumanjo Obi pursuant to an order of Court.
In the Statement of Claim, the 2nd Respondent sought the following reliefs:
(a) A declaration that the Claimant is the family entitled to the customary or statutory right of occupancy in respect of the piece or parcels of land known as plots 6, Abiodun Abdullahi Close, Ojo Summonu Village, Ogun State, Plots 32, 34, 36 and 38 Akute Road, Ojo Summonu Village, Ogun State
(b) An order of perpetual injunction restraining the defendants, their agents, servants and privies from committing or continuing to commit acts of trespass on the land in dispute situate and known as plots 6, Abiodun Abdullahi Close, Ojo Summonu Village, Ogun State, Plots 32, 34, 36 and 38 Akute Road, Ojo Summonu Village, Ogun State.
(c) An order granting possession of the said parcels of land to the Claimant.
The 1st Respondent in this appeal as 3rd Defendant joined issues with the 2nd Respondent by filing a Statement of Defence and Counter Claim on 12th of August, 2009. By a Notice of Discontinuance filed on 23rd of June, 2010, the Claimant discontinued the action against the duo of Mr Sanyaolu and Mr. Goodluck Evugbanu leaving only the 1st Respondent as a Defendant to the suit he filed. The Appellant was later joined as a 2nd Defendant to the suit by an Order of the lower Court dated 13th of December, 2012. The Claimant again on the 18th of January, 2013 filed Notice of Discountenance by which he discontinued the suit against the two Defendants.
The proceedings at the lower Court was conducted based on the Respondents’ Counter-Claim in which the original Claimant (2nd Respondent) was the 1st Defendant and the Appellant as the 2nd Defendant/Counter-Claimant.
By his Counter-Claim the 1st Respondent sought the following reliefs:
(a) A declaration that Defendant/Counter-Claimant is the person entitled to the Statutory Right of Occupancy of all that parcel of land measuring about 1047.89259 metres situate, lying and being within OPIC Acquisition along Akute/Ojodu Road, Ogunlowo Village, Ifo Local Government Area, Ogun State covered by Certificate of Occupancy No. 18 at page 18 in volume 684 of the Lands Registry in the office at Abeokuta
(b) An order of mandatory injunction compelling the defendants to the Counterclaim to pull down the storeybuilding which was erected on the land in dispute during the pendency of this suit.
(c) An Order of perpetual injunction restraining the Defendants-to-the Counterclaim, their servants, agents or privies from trespassing on the aforementioned land, or doing anything that may be adverse to the title and right of the Counterclaimant concerning the said land.
The Appellant also counter-claimed as follows:
(i) A declaration that the 2nd Defendant is the one entitled to the Statutory Right of Occupancy over the piece or parcel of land situate, lying and being at Ojo Sunmonu Village, along Alagbole-Akute Road, Akute in the Ifo Local Government Area of Ogun State properly described and delineated on Plan No. OG/1703/2009/08 dated 28/10/2009 and drawn by A.O. Oladejo (Registered Surveyor) and also properly described on composite Plan No. OG/1184/2012/55/DISP dated 15/09/2012 drawn by R.O. Alabede, Registered Surveyor and verged Green.
(ii) An order setting aside the Certificate of Occupancy No. 026363 issued in favour of the Counter-Claimant and registered as No. 18 at page 18 in volume 684 dated 6/8/2008 in the Land Registry, Abeokuta.
(iii) N100,000.00 as general damages against the Counter-Claimant for acts of trespass committed over the said land
(iv) An order of perpetual injunction restraining the Counter-Claimant and the 1st Defendant together with their agents, servants, privies or howsoever described from committing any further act of trespass over the said land.
The case of the 1st Respondent is that he purchased the land in dispute measuring 1947.892 square metres from one Lawrence Adegoke Ajayi in 1976. The sale is evidenced by a Deed of Conveyance dated 30th of June, 1976. He said it was in the process of registering his title at the Lands Registry Abeokuta that he discovered that the disputed land was part of that which had been acquired by the State government. He then applied for ratification of his title and was subsequently issued with a Certificate of Occupancy No. 18 at page 18 volume 684 in the Lands Registry, Abeokuta on 6th of August, 2008.
It is further his case that he erected seven shops on the land which were occupied by rent paying tenants from 1976 to 1999 when the 2nd Respondent trespassed thereon chased out his tenants and demolished the shops and fence. This he said prompted him to purchase the land again from Ogundimu AkereSebi-Erin (Omolomo) family. He was issued a receipt dated 20th of June, 1999. He said he also paid money to the Ojo Sunmonu family and was issued a letter dated 15th of March, 1999. It is also his case that the Appellant in disregard of the restraining Order made by the lower Court entered into the land in dispute and constructed a gigantic building thereon.
The case presented by the Appellant as 2nd Defendant to the Counter-Claim of the 1st Respondent is that the disputed land is situate at Ojo Sunmonu Village, along Alagbole-Akute Road, Akute in Ifo Local Government Area of Ogun State which is part of a vast area of land originally settled upon by Osho-Ogun the progenitor of the Ogundimu Akeresebi-Erin Omolomo family. That he purchased the land in dispute from the Ogundimu Akeresebi-Erin Omolomo family in 2009. That he was issued with a purchase receipt dated 8th of October, 2009. That he took immediate possession of the land and caused a survey to be done. He thereafter commenced building thereon. According to him, the land was not acquired by the State government as no compensation was paid to the Ogundimu family. That the Counter-Claimant/1st Respondent has no title to the land and therefore not entitled to a Certificate of Occupancy.
At the hearing, both parties called two witnesses each. At the close of evidence, the parties filed and exchanged Written Addresses and in a considered Judgment delivered on 29th of February, 2016, the learned trial Judge entered Judgment in favour of the 1st Respondent.
Dissatisfied with the Judgment, the Appellant who was the 2nd Defendant to the 1st Respondent’s Counterclaim filed this appeal by causing a Notice of Appeal to be filed on 17th of March, 2016. The said Notice of Appeal which is at pages 756-762 of the Record was amended pursuant to an Order of Court. The Amended Notice of Appeal which contains six (6) grounds of appeal filed on 31st of October, 2018 was deemed properly filed on 16th of January, 2019. In line with the Rules and Practice of this Court, parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument settled by H.O.B. Afuape, Esq filed on 15th of October, 2019 was deemed properly filed on 25th of February, 2020. Learned Counsel to the Appellant formulated five (5) issues for the determination of this appeal to wit:
(i) Whether the learned trial Judge was right when in his Judgment and in coming to a decision, he countenanced and relied on the new roots of title and the purported report of the Surveyor-General dated 11/7/2014 which the 1st Respondent pleaded in his Amended Reply and Defence to Counter-Claim dated 29/12/2014. (Distilled from ground No. 1 of the appeal).
(ii) Whether the learned trial Judge was right when, in his Judgment and in coming to a decision, he relied on the purported report of the Surveyor-General and the attached composite plan dated 11/7/2014 in spite of the fact that the said document had been tendered, rejected as an exhibit and equally abandoned and never in evidence. (Distilled from ground No. 2 of the appeal).
(iii) Whether the learned trial Judge was right when he cast or placed on the Appellant the onus to prove that Exhibit CCM7 was not genuine and valid and in holding the same Exhibit to be valid (Distilled from ground 3 of the appeal).
(iv) Whether the learned trial Judge was right in holding that the 1st Respondent’s title takes priority over that of the Appellant (Distilled from ground No. 4)
(v) Whether the learned trial Judge was right to hold that the 1st Respondent proved title to the land in dispute to have awarded him the reliefs sought and in dismissing the Appellant’s Counter-Claim (Distilled from grounds Nos. 6, 6 and 7 of the appeal)
The 1st Respondent’s Brief of Argument settled by Paul Kayode Akano, Esq filed on 27th of November, 2019 was deemed properly filed on 25th of February, 2020. He distilled the following six (6) issues for the determination of this appeal:
(1) Was the learned trial Judge wrong in law to have relied on the roots of title re-stated and/or embellished in paragraph 5 of the Further Amended Reply and Defence to Counterclaim of the Appellant dated 29/12/14 and the Surveyor-General’s Report/Composite Plan (Ground 1 of the Notice of Appeal)
(2) Was the learned trial Judge wrong in law to have relied on the Surveyor General’s Report/Composite Plan dated 11/71/14 which was submitted to Court and identified on subpoena by CW2, a nominee from the office of the Surveyor-General of Ogun State (Ground ii of the Notice of Appeal)
(3) Did the learned trial Judge err in law when he held that the onus was on the Appellant to prove that Exhibit CCM7 was not genuine (Ground iii of the Notice of Appeal)
(4) Did the learned trial Judge err in law when he held that 1st Respondent’s title takes priority over the title of the Appellant (Ground iv of the Notice of Appeal)
(5) Did the learned trial Judge err in law when he declared title in respect of the land in dispute in favour of the 1st Respondent having regard to the pleadings and preponderance of evidence before the Court (Ground v of the Notice of Appeal)
(6) Did the learned trial Judge err in law when he dismissed the Counterclaim of the Appellant having regard to the superior title of the 1st Respondent to the land in dispute (Ground vi of the Notice of Appeal)
The Appellant’s Amended Reply Brief filed on 28th of November, 2019 was deemed properly filed on 25th of February, 2020. The 2nd Respondent who was the 1st Defendant to the Counter-Claims before the lower Court did not participate at the trial. The learned trial Judge noted at page 727 of the Record that his Counsel refused to participate in the trial of the Counter-Claims. He also did not file a 2nd Respondent’s Brief of Argument. This Court therefore on the 18th of January, 2019 granted an application made on behalf of the Appellant to set down this appeal for hearing on the Appellant’s Brief of Argument and 1st Respondent’s Brief of Argument alone.
At the hearing of this appeal before us on 25th of February, 2020, learned Counsel for the Appellant adopted his Brief of Argument as well as the Appellant’s Amended Reply Brief as his oral arguments and urged us to allow the appeal. Learned Counsel for the 1st Respondent adopted his Brief of Argument and relied on the submissions contained therein in urging us to dismiss this appeal.
I have carefully perused the issues identified by both parties for the determination of this appeal and I am of the view that the following issues would suffice:
(1) Whether from the state of pleadings, evidence and the law, the lower Court was justified to have relied on the Report of the Surveyor-General and the Composite Plan attached thereto. (Appellant’s issues 1 and 2; 1st Respondent’s issues 1 and 2)
(2) Whether upon the pleadings, evidence and circumstance of this case, the lower Court was right when it placed the burden of proving the validity of Exhibit CCM7 on the Appellant. (Appellant’s issue 3 and 1st Respondent’s issue 3)
(3) Whether the findings of the lower Court upon which it upheld the 1st Respondent’s claims and dismissed Appellant’s Counter-Claim is supported by the evidence on record. (Appellant’s issues 4 and 5; 1st Respondent’s issues 4, 5 and 6).
ISSUE 1
Whether from the state of pleadings, evidence and the law, the lower Court is justified to have relied on the Report of the Surveyor-General and the Composite Plan attached thereto. (Appellant’s Issues 1 and 2; 1st Respondent’s Issues 1 and 2).
In arguing this issue, learned Counsel for the Appellant pointed out that in the process titled 1st Amended Statement of Claim and Counter-Claim, the 1st Respondent relied on only one root of title but in his Further Amended Reply and Defence to Counter-Claim, he introduced new or additional roots of title. These new facts he submitted constituted a radical departure from the pleadings and evidence and therefore not valid in law.
He submitted the 1st Respondent is permitted in law to raise his root of title only in his statement of claim and not in the Amended Reply to Statement of Defence as he did in this case. He said the purpose of a reply to statement of Defence is to challenge, deny or admit the averments in a Statement of Defence. He cited the cases of OLUBODUN VS. LAWAL (2008) 17 NWLR (PT. 1115)1 AT 33, PARAS.A-G; AKINSANYA VS. SOYEMI (1998) 8 NWLR (PT. 560) 49 AT 57-58, PARAS.H-A and ADENIYI VS. FETUGA (1990) 5 NWLR (PT. 150)375 AT 390-391 in support.
It is Counsel’s further contention that by pleading the Report in his Further Amended Reply and Defence to Counter-Claim, the Appellant’s right to respond to the new issue was foreclosed which action constituted a breach of the Appellant’s right to fair hearing and craved in aid the cases of ADEPOJU VS. AWODUYILEMI (1999) 5 NWLR (PT. 603) 364 AT 381-383, PARAS. G-A; 390-391, PARAS. C-G.
It is his further contention that the lower Court cannot act or consider the Surveyor-General’s report which was rejected in evidence and craved in support the cases of WASSAH & ORS VS. KARA & ORS (2014) 12 MJSC 1 AT 32, PARA.G; 36-37, PARAS.G-A; NIGERIA PORTS PLC VS. BEECHAM PHARMACEUTICAL PLC LTD (2012) VOL. 12 MJSC (PT. II)160 AT 200, PARAS. A-D; UNION BANK OF NIG LTD VS. PROF OZIGI (1994)3 NWLR (PT 333) 385.
He went on to submit the lower Court was wrong to have relied on Section 246(1) of the Evidence Act and urged us to hold that the learned trial judge was wrong when it relied on the Report which he said occasioned a miscarriage of justice.
In response, learned Counsel for the 1st Respondent submitted the learned trial Judge was right in law when he relied on the facts pleaded in paragraph 5 of the Further Amended Reply and Defence to the Counter-Claim. He argued that the issue of OPIC acquisition was pleaded in the 1st Amended Statement of Defence and Defence to Counter-Claim and not a fresh issue raised in his Amended Reply as Appellants wish us to hold.
He went on further to say that in the original statement of defence and counter claim, the 2nd Respondent pleaded that the disputed land belong to Ojo Sunmonu family but that it was the Appellant upon being joined as a party that raised the issue of Ogundinu Family’s interest in the land. This he said necessitated the response of the 1st Respondent to raise the issue of payment of money to Ogundinu Family and acquisition by the Ogun State Government. He said the 1st Respondent had to join issues with the Appellant on the Appellant’s Claim that his root of title was the Ogundinu Family. He then submitted the trial judge was right in law to have countenanced and relied on the averments in the amended reply.
On the submission of Appellant’s Counsel that the lower Court could not rely on the Surveyor General’s report already rejected, Counsel submitted it was not the report that was rejected but the procedure adopted by the 1st Defendant to tender it. He submitted the report already formed part of the Court’s record and any attempt to tender it in evidence was unnecessary. He urged us to hold the lower Court was right when it countenanced the report as it had the right to look at a document legitimately before it. He cited the cases of OGBUNYIYA VS. OKUDO (1979) 6-9 SC AT 32; AGBAISI VS. EBIKOREFE (1997) 4 NWLR (PT. 502)630 AT 648, PARA. C in support and went on to say the Appellant suffered no miscarriage of justice and if anything the report assisted the Court to do transparent justice.
He finally submitted on this issue that all cases relied upon by the Appellant are not applicable having regard to the peculiar circumstances of the case before the lower Court.
On the reply brief filed by the Appellant, it is trite that the essence of filing a reply brief is to enable an Appellant respond in a concise form to new arguments raised in the Respondent’s Brief of Argument. It is not meant for re-arguing the appeal. See STATOIL (NIG) LTD VS. INDUCON (NIG) LTD & ANOR. (2018) 9 NWLR (PT. 1625) 586; KOLO VS. LAWAN (2018) 13 NWLR (PT. 1637) 495; DANLADI VS. DANGIRI & ORS (2015) 2 NWLR (PT. 1442)124. I have carefully perused the Appellant’s Amended Reply Brief and I find it to be one largely used as a medium to re-argue the Appellant’s case and put in issues omitted from the Appellant’s Brief of Argument. There are however instances where Counsel responded on points of law to issues raised in the Respondent’s Brief of Argument. I shall therefore only countenance the reply Brief to the extent of the response to points of law raised in the Respondent’s Brief of Argument.
To put all matters in this appeal in proper perspective, I consider it necessary to do a brief recap of the background facts of the proceedings before the lower Court. The 2nd Respondent instituted an action before the lower Court against the 1st Respondent and two others vide a Writ of Summons and a Statement of Claim. He instituted the action in a representative capacity and as the head of the Ojo Sunmonu Family. He discontinued the action against two of the named Defendants leaving only the instant 1st Respondent as a defendant. The 1st Respondent joined issues with him on facts contained in his statement of claim by filing a statement of defence and counter claim.
The Appellant who was thereafter joined as a party pursuant to an Order of Court dated 13th December 2012 filed a Statement of Defence and Counter Claim in which he joined issues with the 2nd Respondent on his Counter Claim and also joined issues with the 1st Respondent on his Counter Claim. The Appellant has contended that the 1st Respondent raised new issues when he pleaded additional root of his title in his Reply and Amended reply which his Counsel submitted is against the settled position of law. He relied on several decided cases in support of his contention.
I agree with Learned Counsel to the Appellant that a reply is a defence of a Claimant to the case put forward by a Defendant or to new facts raised by the Defendant in his Defence to the Statement of Claim. It is however the settled position of law that a Claimant cannot introduce a new issue in his Reply without the leave of Court. See OLUBODUN & ORS VS LAWAL & ANOR. (2008) 17 NWLR (PT. 1115)1; OJE & ANOR VS. BABALOLA & ORS (1991) 4 NWLR (PT. 185)267; UGHUTEVBE VS. SHONOWO & ANOR (2004) 16 NWLR (PT. 899)300.
The question now is whether the 1st Respondent raised a fresh issue inconsistent with his initial pleadings in his Reply. In proffering an answer to the question, it is pertinent to re-emphasize that the 2nd Respondent discontinued the original action filed by him against both the Appellant and the 1st Respondent vide a Notice of Discontinuance filed on 21st of January, 2013. Pursuant to the extant Rules of Court which is the Ogun State High Court (Civil Procedure) Rules, 2008. Order 17 Rule 11 of the Rules provides as follows:
“If in any action in which the Defendant sets up a counter-claim, the action of the Claimant is stayed, discontinued or dismissed, the Counter-Claim may nevertheless be proceeded with”
The Counter-Claims filed by both the Appellant and the 1st Respondent survived the original action filed by the 2nd Respondent. The judgment of the lower Court which is the subject of the instant appeal is on the separate action filed by the Appellant and the 2nd Respondent.
The law is trite that a counter-claim is an independent action. It may be related to the principal action but it need not arise out of the same transaction. As a cross action, its fate is not dependent on the outcome of the claim of the original Claimant. See OROJA & ORS VS. ADENIYI & ORS (2017) 6 NWLR (PT. 1560) 138; LOKPOBIRI VS. OGOLA & ORS (2016) 3 NWLR (PT. 1499)328; ATIBA IYALAMU SAVINGS AND LOANS LTD VS. SUBERU & ANOR. (2018) 13 NWLR (PT. 1637)387. InOGBONNA VS. ATTORNEY-GENERAL OF IMO STATE & ORS (1992) 1 NWLR (PT. 220) 633, Nnaemeka-Agu, JSC held thus:
“I believe it has been settled by several decided cases that a counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a Court so grants leave. Indeed, not only can a defendant apply for summary Judgment on his counter-claim but also a Plaintiff may counter-claim on Defendant’s counter-claim (see Renton Gibbs & Co. v Neville (1900) 2 Q.B. 818).
So, where a Defendant counter-claims against the Plaintiff the latter is duty bound to file a Reply in Defence to the counter-claim, otherwise the Court is entitled, in fact obliged, to assume that the Plaintiff has no defence to the counter-claim and may enter Judgment for the Defendant accordingly. See an example on this: Nigerian Housing Development Society Ltd v Mumuni (1977) 2 S.C. 57. This is because where a Defendant pleads certain facts in his pleadings in support of his counter-claim, with all the necessary particulars, but the Plaintiff fails to reply them, no issue is raised on such Defendant’s pleading. So the Court can proceed to give Judgment on it without much ado.”
It follows therefore that where a party fails to react to the Counter Claim filed by an adverse party he will be deemed to have no defence to the Counter Claim and the Court may enter judgment accordingly. The situation before the lower Court was that in respect of the counter claim filed by the 1st Respondent, the 2nd Respondent who was the Claimant became the 1st Defendant and the Appellant upon being joined as a party became the 2nd Defendant. As regards the Counter Claim incorporated into the Appellant’s Statement of Defence, the 2nd Respondent was 1st Defendant while the 1st Respondent was the 2nd Defendant.
From the above stated background, it is very clear the Appellant had a right to respond as a defendant to the 1st Respondent’s Counter Claim. The 1st Respondent was also entitled in law to respond as Defendant to the Appellant’s Counter Claim which he did when he filed a “Defendant’s Reply and Defence to Statement of Defence and Counter Claim of the 2nd Defendant to Counter Claim” on 15th of June 2012. The process thus filed by the 1st Respondent was not a Reply simpliciter. It was also a Reply to the original Statement of Claim filed by the 2nd Respondent as well as a response as Defendant to the Appellant’s Counter-Claim.
The rule that a party cannot raise new issue in his reply would apply where a Claimant files a reply to new issues raised in a statement of defence. What the 1st Respondent filed before the lower Court was a response as a Defendant to issues raised in the Appellant’s Counter Claim. He was clearly a Defendant to the Counter Claim and I so hold.
The Appellant filed a Statement of Defence to the 2nd Respondent’s Statement of Claim on 26th April, 2012 in which he incorporated a Counter-Claim. In the Statement of Defence and Counter-Claim he traced his root of title to the land to the Ogundimu family. The 1st Respondent filed a Defence to the Counter Claim of the Appellant.
The law is that where a party denies an allegation of fact in the pleading of the opposite party, he shall file a Statement of Defence which must contain facts which he seeks to rely on in defence to the facts pleaded by the Claimant. See ISAAC VS. IMASUEN (2016) 7 NWLR (PT. 1511) 250; OMORHIRHI & ORS VS. ENATEVWERE (1988) 1 NWLR (PT. 73) 746; ANEKWE & ANOR VS. NWEKE (2014) 9 NWLR (PT. 1412) 393.
The 1st Respondent who was a Defendant to the Counter-Claim of the Appellant was entitled to raise a defence to the root of title relied upon by the Appellant and I so hold. He did not raise a fresh issue or plead additional root of title. He responded to the issues in the Appellant’s pleadings and no more.
The Appellant also made an issue of the Surveyor-General’s Report relied upon by the learned trial judge in his judgment.
In the course of the proceedings at the lower Court, the 1st Respondent filed an application wherein he sought an order of Court directing the Surveyor-General of Ogun State or any officer appointed by him to enter into the disputed land to inspect, survey and/or make observations thereon and submit a report to the Court. The purpose of the Application was to clear all ambiguities on the identity of the disputed land. The Application was granted by the Court. The Surveyor-General on the orders of the Court submitted a report dated 11th July 2014 to it after which the 1st Respondent brought an application to amend his reply to the Statement of Defence and Defence to Counter Claim of the 2nd Defendant (Appellant) which application was granted.
The Further Amended Reply and Defence to the Amended Statement of Defence and Counterclaim of 2nd Defendant was filed on the 29th of December 2014. The lower Court was right when it granted the application to amend. The 1st Respondent had a right to so do.
It is further the complaint of the Appellant before us that the lower Court refused to grant him leave to file a consequential reply to the Further Amended Reply and Defence to the Amendment filed by the 1st Respondent which refusal he submitted is an infraction of his right to fair hearing.
Let me mention here that a party would be entitled to invoke the principles of fair hearing where he has a right to be heard but was denied. Where no such right is guaranteed under the law or rules of Court, the issue of fair hearing would not arise. See SOSANYA VS. ONADEKO (2005) 2 SC (PT. II)13; DICKSON OGUNSEINDE VIRYA FARMS LTD VS. SOCIETE GENERALE BANK LTD & ORS (2018) 9 NWLR (PT. 1624)230 AND OLATUNBOSUN VS. NISER COUNCIL (1988) 3 NWLR (PT. 80)25.
I have gone through the record of proceedings before the lower Court and particularly that of the 13th of April 2015 contained at page 720 of the record and I am of the view that the complaint of the Appellant does not find support in the record. The trial judge did not foreclose the Appellant from filing any process. There were options opened to the Appellant in the circumstance he found himself which he failed to utilize. His complaint that he was denied fair hearing is baseless and I so hold.
The Appellant further submitted that the trial judge was in error when he relied on the Surveyor-General’s report and the attached composite plan which he said were tendered and rejected in the course of the proceedings. The law is settled that a document rejected in evidence and so marked has no evidential value. See NIGERIAN PORTS PLC VS. BEECHAM PHARMACEUTICAL LTD & ANOR (2012) 18 NWLR (PT. 1333)454; WASSAH & ORS VS. KARA & ORS (2015) 4 NWLR (PT. 1449)374; OLADELE & ORS VS. AROMOLARAN II & ORS (1996) 6 NWLR (PT. 453)180.
At the proceedings of the lower Court on 6th July, 2015, the 1st Respondent attempted to tender in evidence the Surveyor-General’s Report sent directly to the Court. The Appellant objected. The relevant proceedings are at pages 721 – 723 of the record. The Learned Trial Judge at page 723 held as follows:
“In conclusion I am in agreement with Mr. Afuape that the letter of Bureau of lands and survey dated 11th July, 2014 cannot be tendered again by the Claimant Counsel. It may at best be identified by the subpoenaed witness.
The document is rejected as exhibit as it forms part of the Courts records.”
The learned trial Judge in his judgment stated as follows at pages 748 – 749:
“On the 6th day of July, 2015, the Counter Claimant subpoenaed a witness, Mr. Femi Olunubi who claimed to be a civil servant from the Bureau of Lands and Surveys. Counter Claimant requested for a copy of the Report of the Lands and Surveys Ministry sent to the Court earlier by that office. He attempted to tender it along with its photocopy as exhibit through the said witness, the attempt was objected to by Mr. Afuape counsel to the 2nd Defendant on two grounds, one that it was a document referred to in the Reply of the Counter Claimant to the defence of the 2nd Defendant and that he was foreclosed from responding to the pleadings by the Court. He also objected that the document already forms part of the records of the Court and that where a secondary part of it is to be tendered it must be a CTC. The Court ruled rejecting the procedure of the Counter Claimant to tender the document and its photocopy not being a CTC. The Court ruled as follows, the document is rejected as Exhibit as it already forms part of the records of this Court.
The witness however went ahead to identify the document as the report of their office sent to the Court based on the order of the Court in the Ruling of 11th June, 2014.”
From all of the above, it is clear that what the lower Court did was to refuse to admit an uncertified photocopy of the original report already in the custody of the Court. It is significant to note that the original of the Surveyor-General’s Report was sent directly to the Court. It was therefore part of the Court’s record. Learned Counsel to the Appellant admitted before the lower Court that the Report was part of the Court record and hence his objection that the only copy admissible was a copy duly certified by the Court. The Trial Judge at page 731 of the record held thus:
“The 2nd witness for the Claimant is a subpoenaed witness. He said he is Femi Olunubi a civil servant with the Bureau of Lands and Surveys, Ogun State. He said he prepared the report dated 11th day of July, 2014. He identified the report sent to the Court and attempted to re-tender the report with a photocopy. The attempt failed based on the objection of the defendant’s counsel. The document was thus returned to the records of the Court having been identified by the witness.”
What is very clear to me is that the original of the report was sent directly to the Court. It thus became part of the Record of the Court. The said report was identified as the Surveyor-General’s report sent to Court by one Femi Olunubi a staff of the Bureau of Lands and Survey who was subpoenaed to testify. I note that the report was returned to the custody of the Court upon being identified by its maker. The original of the Report which was identified by the witness was not at any time rejected in evidence. The submission of learned counsel to the Appellant that the learned trial judge relied on rejected evidence in arriving at his decision is not supported by the record and I so hold.
The Court ordered the Surveyor-General to investigate and send a report to it to clarify the identity of the land. This was necessitated by the ambiguity created on the identity of the land by the evidence adduced by both parties before the Court. Section 246(1) of the Evidence Act empowers the Court to do so. Section 246(1) (supra) provides as follows:
“The Court or any other person empowered by law to take evidence may, in order to clear up ambiguities or to clarify points which have been left obscure in the evidence given by any witness, ask any fact relevant or irrelevant; and may order the production of a document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order or, without leave of the Court, to cross-examine any witness upon any answer given in reply to such question.”
The lower Court had power to order for the production of a report by the Surveyor-General as a result of the ambiguity on the identity of the disputed land created by the evidence of both parties. See also the cases of ELABANJO VS. DARLINGTON (1970) NSCC 19; SANNI VS. OGUNBODE (2001) 8 NWLR (PT. 714)74.
The findings of the lower court at pages 749 – 750 of the Record show the Surveyor-General’s report was used to clarify the ambiguity created by the two parties on the identity of the land. The report was submitted to the Court. It formed part of the record of the Court which it can take judicial notice of and act on by virtue of Section 122 of the Evidence Act 2011. See also the cases of OSAFILE & ANOR VS. ODI & ANOR (1990) 3 NWLR (PT. 137)130; DAGGASH VS. BULAMA (2004) 14 NWLR (PT. 892) 144 AND MILITARY GOVERNOR OF LAGOS VS. ADEYIGA (2012) 5 NWLR (PT. 1293) 291.
The lower Court was therefore right when it ordered the Surveyor-General of Ogun State to investigate and write a report on the disputed land. It was also right when it acted on the Report which formed part of its record and I so hold.
This issue is thus resolved against the Appellant.
ISSUE 2
Whether upon the pleadings, evidence and circumstance of this case, the lower Court was right when it placed the burden of proving the validity of Exhibit CCM7 on the Appellant.”
(Appellant’s Issue No. 3 and 1st Respondent’s Issue No. 3.)
Exhibit CCM7 is a Purchase Receipt with No. 000657 dated 20th of June 1999 tendered by the 1st Respondent which receipt he said was issued to him by Ogundimu Family. The Appellant’s position is that the receipt was not genuine. The Learned Trial Judge found in favour of the 1st respondent on this issue and held that the burden was on the Appellant to prove that the receipt, Exhibit CCM7 was not genuine.
Appellant’s Counsel’s argument before us is that the lower Court was wrong when it held that the burden of proof on the genuineness of the receipt was on the Appellant.
The law is that a Court has a duty to place the onus of proof where it belongs in the evaluation of facts and evidence before it. Failure to do so will occasion a miscarriage of justice. See OKOYE & ORS VS. NWANKWO (2014) 15 NWLR (PT. 1429)93; AKINBADE & ANOR. VS. BABATUNDE & ORS (2018) 7 NWLR (PT. 1618)366 AND ADEDEJI VS. OLOSO & ANOR (2007) 5 NWLR (PT. 1026)133.
The 1st Respondent was the first to give evidence in support of his claim. His evidence is that he was in peaceful occupation of the disputed land from 1976 up until the 20th of June 1999 when the Ogundimu-Akeresiebi Erin (Omolomo) Family laid claim to the land. He said as at that time he had tenants occupying the shops he built on the land. He testified further that in the interest of peace he re-purchased the land from the Ogundimu Family and was issued with a receipt which he tendered in evidence and same admitted as Exhibit CCM7.
From the state of pleadings and the evidence adduced in support, it is the claim of the 1st Respondent that he paid the Ogundimu Family for the land and was issued the receipt, Exhibit CCM7.
The law is that in Civil cases, while the initial burden of proof lies on the Plaintiff, the proof of rebuttal of issues which arises in the course of proceedings may shift from the Plaintiff to the Defendant and vice versa as the case progresses.
The 1st respondent gave evidence that he was issued a receipt by the Ogundimu Family as acknowledgment for payment for the purchase of the land. Upon admission of the receipt in evidence, the onus shifts to the Appellant who would fail if no further evidence is given on the receipt and I so hold.
Exhibit CCM7 tendered by the 1st Respondent was to prove his title to the disputed land. The burden of proof to establish otherwise shifted to the Appellant who had a duty in the circumstance to prove that the receipt of payment relied upon by the Respondent was not genuine as he would wish the lower Court hold. He failed to discharge this burden. To say Exhibit CCM7 was not genuine and no more does not constitute proof that the receipt is not genuine. The Appellant had a duty to establish by credible evidence that it is not.
The lower Court was therefore right when it held that the burden was on the Appellant to prove that the receipt of payment Exhibit CCM7 relied upon by the 1st Respondent was not genuine and I so hold.
Issue No. 2 is resolved against the Appellant.
ISSUE NO.3
“Whether the findings of the lower Court upon which it upheld the 1st Respondent’s claims and dismissed Appellant’s Counter-Claim is supported by evidence on record.”
(Appellant’s Issues 4 and 5, 1st Respondent’s Issues 4, 5 and 6)
Learned Counsel to the Appellant submitted under this issue that the 1st Respondent failed to establish his title to the land in dispute in that he was unable to successfully trace his title to the Ogundimu Family. He argued that contrary to the finding of the learned trial judge, the doctrine of priority of interest is not applicable to the instant case. He craved in aid the case of AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (PT. 70) 325.
He further argued that the 1st Respondent failed to prove his title to the disputed land as required by law. He relied on the following cases in support: C.B.C. LTD VS. SCOA LTD (2009) 5 MJSC 142; DIM VS. ENEMUO (2009) 4 MJSC (PT.I) 153 AT 170-172; IYERE VS. B.F. & F.M. LTD (2008) 12 MJSC 102; IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227; MADU VS. MADU (2008) 5 MJSC 213 AT 227-228.
He went on to submit that the 1st Respondent who has not proved his root of title by credible evidence cannot sustain his claim by proof of acts of possession. It is further the contention of the learned counsel to the Appellant that the Appellant on the other hand proved by traditional evidence and production of document of title, his root of title and therefore entitled to judgment.
Arguing per contra, learned counsel to the 1st Respondent submitted that since both parties claim to have acquired title to the land from the Ogundimu Family, the 1st Respondent whose acquisition was first in time was entitled to judgment and urged us to so hold. He relied on the maxim NEMO DAT QUOD NON HABET and the cases of FAMUROTI VS. AGBEKE (1991) 5 NWLR (PT. 189)1 AND EKPECHI VS. OWHONDA (1998) 3 NWLR (PT. 543)618 AT 642-643.
The trite position of law is that ownership or title to land may be proved by any of the following methods:
(i) By traditional Evidence;
(ii) By production of document of title duly authenticated;
(iii) By acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner of the land;
(iv) By acts of long possession;
(v) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
To succeed in a claim of title to land, a Claimant need not prove each of the five methods enumerated above. Proof of any of the methods would suffice. See IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227; AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998)628; MADU VS. MADU (2008) 6 NWLR (PT. 1083) 296 AND OLUBODUN & ORS VS. LAWAL & ANOR (2008) 17 NWLR (PT. 1115)1.
The law is further settled that a Claimant must succeed on the strength of his own case and not the weakness of the defence except where the case of the Defendant supports his.
A Claimant has a duty to establish his case by preponderance of evidence on the balance of probability. In so doing, he must prove to the satisfaction of the Court that he has a better title than the Defendant. See KOLO VS. LAWAN (2018) 13 NWLR (PT. 1637) 495; OKELOLA VS. ADELEKE (2004) 13 NWLR (PT. 890) 307 AND WACHUKWU & ANOR VS. OWUNWANNE & ANOR. (2011) 14 NWLR (PT. 1266)1.
It is significant to note at this stage that in the instant appeal, both the Appellant and the 1st Respondent were Counterclaimants at the lower Court. It follows therefore that both of them had a burden to establish by credible evidence ownership or title to the land. See AKINBADE & ANOR VS. BABATUNDE & ORS (2018) 1 NWLR (PT. 1618)366; OKHUAROBO VS. AIGBE (2002) 9 NWLR (PT. 771)29; OLUSANMI VS. OSHASONA (1992) 6 NWLR (PT. 242)22 AND KYARI VS. ALKALI & ORS (2001) 11 NWLR (PT. 724)412.
It is further the law that a Claimant seeking title to land must establish the identity of the disputed land with certainty and precision. He must prove the description and extent of its boundaries with exactitude.
From the evidence adduced by the parties in support of their pleadings at the lower Court, the trial judge in the course of the proceedings was rightly of the view that there was an ambiguity on the identity of the disputed land which he felt needed to be cleared. The Surveyor-General of Ogun State was ordered to submit a report to clarify the identity of the disputed land which report was sent directly to the Court. The Court took judicial notice of the report which formed part of its record. Relying on the report, the trial judge found that the land claimed by both the Appellant and the 1st Respondent was the same parcel of land.
The question now is who between the parties i.e. Appellant and 1st Respondent proved a better title to the land.
From the pleadings and evidence on record, it is not in doubt that the 1st Respondent relied on two methods to establish his title i. e. production of document of title and (2) Acts of long possession. His case is that he purchased the land vide a deed of Conveyance dated 30th June 1976 only to discover later that the land had been acquired by the Ogun State Property and Investment Corporation (OPIC). His application for ratification was granted and he was subsequently issued with a Certificate of Occupancy on the 6th of August 2008. The Deed of Conveyance and Certificate of Occupancy were admitted in evidence as Exhibits CCM 7 and CCM 8 respectively. To establish acts of long possession, he gave evidence that he constructed shops on the land which were occupied by rent paying tenants. The Appellant for his part traced his root of title to the purchase of the land from Ogundimu Family whose progenitor settled on the land from time immemorial. He relied on a purchase receipt dated 8th October 2009 issued to him by the Ogundimu Family. The receipt is Exhibit DF6. The 1st Respondent joined issues with the Appellant on his root of title from Ogundimu Family. He pleaded and gave evidence that he repurchased the land from the same Ogundimu Family and was issued with a receipt dated 20th June 2009 which was tendered and admitted in evidence as Exhibit CCM7.
The Learned Trial Judge in his judgment found in favour of the 1st Respondent. He found that the Ogundimu Family having sold the land to the 1st Respondent could not sell again to the Appellant.
The above finding of the learned trial judge is based on the age long principle of NEMO DAT QUOD NON HABET which means You Cannot give what you do not have. It is also supported by the basic principle of law that estates and interest primarily rank in order of priority. The maxim “QUI PRIOR EST TEMPORE POTIOR EST JURE” which means he who is earlier in time is stronger in law. See ROMAINE VS. ROMAINE (1992) 4 NWLR (PT. 238) 650; AYANWALE VS. ODUSAMI (2011) 18 NWLR (PT. 1278)328.
There is evidence on record that both the Appellant and the 1st Respondent paid the Ogundimu Family for the purchase of the land. They purchased from a common vendor. The Appellant relied on a receipt dated 8th October 2009 issued to him by the Ogundimu Family. The receipt relied upon by the 1st Respondent was dated 20th of June 1999. (Exhibit CCM7). Exhibit CCM7 emanated from the Ogundimu Family. It is apparent that the purchase made by the 1st Respondent was earlier in time. The Ogundimu Family upon receipt of money from the 1st Respondent for the purchase of the land divested itself of its interest in the land and had nothing to convey to the Appellant as at the time it purportedly did.
It is significant to note that the issue of ownership of the land by the Ogundimu Family was not contested before the lower court.The Ogundimu Family who sold the land to the 1st Respondent on the 20th of June 1999 had nothing to sell to the Appellant on the 8th of October 2009 and I so hold. This being so the case of the Appellant at the lower Court crumbled with no leg to stand. The Appellant in the circumstance failed to prove valid title to the disputed land afortiori his counterclaim.The lower Court was thus right when it dismissed the counterclaim of the Appellant.
The 1st Respondent tendered a Certificate of Occupancy, Exhibit CCM8 issued to him by the Ogun State Government. It is clear from Exhibit CCM8 that the land in dispute is part of the land acquired by the Ogun State Government for Ogun State Property and Investment Corporation (OPIC). There is also evidence that the 1st Respondent exercised acts of possession by constructing shops on the land which he leased to rent paying tenants. There is no doubt the 1st Respondent proved better title to the disputed land and I so hold. The lower Court was therefore right when it held that the 1st Respondent proved his title to the land in dispute and went on to grant the reliefs sought in his Counterclaim.
This Issue No. 3 is again resolved against the Appellant and in favour of the 1st Respondent.
Having resolved all the three issues for determination in this appeal against the Appellant, I find this appeal completely devoid of merit. It is therefore dismissed. I affirm the Judgment of the Ogun State High Court, Ota Judicial Division in Suit No. HCT/186/2009 delivered on 29th of February, 2016.
The Appellant shall pay to the 1st Respondent N100,000 costs.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Lord, FOLASADE AYODEJI OJO, JCA just delivered.
I agree with my Lord’s analysis and conclusion on the issues in this appeal. For the reasons so ably set out in the said lead Judgment, I also dismiss the appeal.
I abide by the consequential orders made in the said lead judgment.
NONYEREM OKORONKWO, J.C.A.: I have had the priviledge of reading in draft the lead judgment in this appeal as written by my lord Folasade Ayodeji Ojo particularly in the elucidatory analysis of counter-claims and the distinction drawn between a reply to a statement of defence and defence to a counter-claim and reply thereto.
On the substantive issues arising in appeal, my lord has correctly applied the law arriving at proper conclusions. I am obliged to agree and do agree with the conclusions arrived.
I abide by the orders made.
Appearances:
O. B. AFUAPE ESQ. For Appellant(s)
K. AKANO ESQ. For Respondent(s)
