OLANREWAJU ADEROUNMU v. MRS. OLABISI OLAIDE ADEROUNMU(2002)

  1. OLANREWAJU ADEROUNMU v. MRS. OLABISI OLAIDE ADEROUNMU

2002)LCN/1236(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of June, 2002

CA/I/173/2000

 

JUSTICES

MORONKEJI OMOTAYO ONALAJA   Justice of The Court of Appeal of Nigeria

FRANCIS FEDODE TABAI   Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE   Justice of The Court of Appeal of Nigeria

Between

 

  1. OLANREWAJU ADEROUNMU Appellant(s)

AND

MRS. OLABISI OLAIDE ADEROUNMU Respondent(s)

ONALAJA, J.C.A. (Delivering the Leading Judgment): This appeal, arose from a divorce proceeding, from Ibadan Judicial Division of Oyo State High Court, holden at Ibadan, wherein the petitioner wife henceforth, referred to in this judgment as petitioner/respondent, initiated the divorce proceedings under the Matrimonial Causes Act, 1970, Cap. 220 of the Laws of Federation, 1990 and in accordance with the said Cap. 220 aforesaid she sought ancillary reliefs in paragraph 12 in the petition as follows:
“(a) A decree of dissolution of marriage on the grounds that the marriage has broken down irretrievably;
(b) The sum of N10,000.00 per month as allowance of the children of the marriage;
(c) An order directing the respondent to pay the school fees of the children of the marriage;
(d) An order of mandatory injunction against the respondent to vacate property situate at No. 32, Francis Okediji Street, Old Bodija Estate, Ibadan, being property belonging to the petitioner as sole owner;
(e) An order of mandatory injunction restraining the respondent from committing further acts of assault on the petitioner or any act that may injure or threaten the petitioner’s life;
(f) An order of mandatory injunction directing the respondent to hand over or release to the petitioner Land Rover Jeep with registration No. OY7768BD being property belonging to the petitioner;
(g) Custody of the children of the marriage.
The petition was served on husband respondent referred to in this judgment as respondent/appellant, who filed a copious, detailed, and exhaustive answer of 32 paragraphs wherein in answer to the reliefs of the petition in paragraph 12(d) (e) the respondent/appellant deposed in paragraphs 30, and 31 of the answer as follows:
“30. The respondent says that the relief sought by the petitioner in paragraph 12(d) of the petition, where he expended about N300,000.00 for renovation and expansion and with the consent and oral agreement of
the petitioner with the respondent ought not be granted.
31. With reference to relief sought in (12)(e) of the petitioner (sic) petition, the respondent says that the Land Rover Jeep with registration No. OY1768BD belongs to him and not to his wife as contained in paragraph 16, 17 and 18, above which paragraphs are hereby set down as follows:
(16) The respondent says that the Land Rover S/Wagon OY768BD was entirely financed by the respondent although the cost payment of  N35,000.00 (Thirty Five Thousand Naira) was made through the petitioner because the purchase was made from Union Bank Plc via a staff called Mr. Balogun of Union Bank Plc New Gbagi Branch as a boarded vehicle;
(17) The cost of refurbishment which was over N150,000.00 (One Hundred and Fifty Thousand Naira) entirely born by the respondent in 1993.
(18) The respondent says that the change of ownership of the said vehicle in paragraph 17 above was effected immediately after the purchase in 1993 and wonder why the petitioner should now lay claim to the vehicle as her own.”
The answer to a petition is akin or equivalent to a statement of defence whilst the petition stands in the position of statement of claim in trial based on pleadings. The petition and answer are sworn to on oath by the parties. It is my option that paragraphs 30 and 31 of the answer did not meet the rule in Lewis and Peat (NRI) Ltd. v. Akhimien (1976) 7 SC 157, (1976) 1 All NLR (Pt. 1) 460, (1976) 1 FNLR 80; Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598 Sc.
The said paragraphs 30 and 31 of the answer in my view were not pleaded by way of counter-claim or cross-petition or cross-ancillary reliefs as required under the rules to set up a counter-claim, cross-petition and cross-ancillary reliefs.
At page 174 of the record of appeal, the learned trial Judge stated thus:
“What are the facts in support of these claims from both the petitioner and respondent? The petitioner testified and called one witness, tendered 53 exhibits, the respondent testified and called four witnesses, tendered 72 exhibits. In sum the petitioner claims absolute ownership of claims 1 and 2 because she paid for them.
The respondent claims them on the ground that he supplied the money with which they were acquired with instructions given to the petitioner in that behalf.”
After a review, assessment of the evidence and ascription of the weight attached to them at page 190 of the record of appeal the learned trial Judge concluded his judgment thus:
“In that result I make the following orders:
(1) No award on the sum of N10,000.00 per month as maintenance for the children.
(2) The respondent shall vacate No. 32, Francis Okediji Street, Bodija Estate, Ibadan, forthwith or be ejected.
(3) The respondent shall also hand over the Land Rover Jeep with registration No. OY7768BD forthwith irrespective of the fact that the respondent registered the vehicle in his name.
Petitioner is hereby authorised to take possession of the vehicle.
(4) Cost assessed as N10,000.00 which includes the petitioner’s out of pocket expenses.”
The respondent/appellant was dissatisfied with the decision of the learned trial Judge at pages 192 to 196 of the record of appeal filed his notice of appeal wherein he raised 8 grounds of appeal and set out the particulars in compliance with the rules and practice of the Court of Appeal Rules. The notice of the appeal was served on petitioner/respondent. After the service respondent/appellant filed with the leave of court on 25th April, 2001, appellant’s brief of argument and distilled from the grounds of appeal, the issues for determination in this appeal as follows:
“3. Issues for Determination
3.01 Whether the learned trial Judge was right in granting sole ownership of the property in dispute situate, lying and being at No. 32, Francis Okediji Street, Old Bodija, Ibadan, to the petitioner/respondent.
3.02 Whether the learned trial Judge was right in granting injunction against the appellant, when the petitioner/ respondent has not shown a better title and was not in exclusive possession of the property in dispute.
3.03 Whether the learned trial Judge was right in granting ownership and possession of the Land Rover Jeep with registration No. OY7768BD to the petitioner/respondent.
3.04 Whether the cost of N10,000.00 (Ten Thousand Naira) awarded against the appellant is not excessive,”
Petitioner/respondent was served with respondent/respondent’s brief of argument, who with leave of court on 13th September, 2001, filed her brief of argument wherein at page 4 paragraph 5 she stated as follows:
“5 Issues Arising in/his Appeal
The respondent submits that the first and second issues formulated by the appellant in this appeal can be
reformulated thus:
(i) Whether in view of the unchallenged document of title tendered before the lower court, the petitioner/respondent is the sole owner of the  property situate at 32, Francis Okediji Street Old Bodija, Ibadan;
(ii) Whether within the contemplation of S.72 of Matrimonial Causes Decree, 1970 and S.10 of the Married Women’s Property Law, Cap. 71, of the Laws of Oyo State of Nigeria, the documents tendered by the respondent/appellant at the lower court can be regarded as supportive of a financial “contribution” towards the purchase of the property situate at 32, Francis Okediji Street, Bodija, Ibadan.
(iii) Whether subsequent “financial contributions” after the purchase of a property and the acquisition of a legal title by a party is enough to change a sole ownership to a joint ownership in the absence of any agreement to that effect;
(iv) Whether the petitioner/respondent has proved her sole ownership of the Land Rover Jeep with registration No. OY7768BD.
(v) Whether the cost of N10,000.00 is a fair assessment, considering the out of pocket expenses and the series of adjournment occasioned by the respondent/appellant.”
With leave of this court, respondent/appellant filed appellant’s reply to respondent’s brief of argument on 23rd January, 2002, wherein he contended that issue No. (ii) petitioner/respondent’s briefs of argument was not covered by any grounds of appeal, applying Mike Momah v. AB. Petroleum Inc. (2000) 4 NWLR (Pt.654) 534, (2000) 2 SC 142 at pg. 1161; Michael Omo v. Judicial Service Commission or Delta State (2000) 12 NWLR (Pt.682) 444, (2000) 7 SC (Pt. 11) page 1 at 8-9 is incompetent this court should ignore the issue and the argument in support.
Upon the matter coming up for argument respondent/appellant relied and adopted his brief of argument and reply to respondent’s brief of argument and urged the court to allow the appeal and grant all the reliefs a, b, c, and d, sought in his notice of appeal at pages 195 and 196 of the record of appeal.
Petitioner/respondent relied on her brief of argument and adopted same in support of her argument on appeal and that issue II raised by him was issue of law in support of whether petitioner/respondent being a femme sole, that the learned trial Judge having dissolved the marriage was right in settling the proprietary interest of the parties in accordance with the weight of evidence and applicable law. So the appeal be dismissed.
Respondent/appellant argued that the learned trial Judge did not evaluate and assess the evidence before him properly. He disbelieved 2nd DW that his company that renovated and carried out expansion of 32, Francis Okediji Street, the matrimonial house in dispute was not in existence in 1988, contrary to 3rd DW’s testimony under cross-examination that his company was incorporated in October, 1986, prior to the purchase of the property in dispute in 1988. The learned trial Judge at page 182 held against 3rd DW Taiwo Aderounmu as follows:
“Taiwo Aderounmu, who was called to establish the amount of repairs carried out on the house, lied when it was discovered that his company, Twindex Nigeria Ltd. was not in existence during the renovation of the house.
As he is also a relation of the respondent his evidence is self serving and of little or no value.”
The above was wrong basis to reject evidence of 3rd DW as his company was incorporated before the purchase of the house in dispute. It is trite law that the fact of being a relation to a party alone the witness should not be treated as a tainted witness.
The learned trial Judge relied wrongly and made use copiously of the deposition in the application for an interlocutory application during the pendency of the case, the use of the affidavit evidence to bolster up petitioner/respondent’s case was wrong in law as decided in Perkings v. Slater (1875-76) 1 CH D 83, at page 160 paragraph 13DF in Aguda’s book on Evidence wherein the learned author stated
“An affidavit used in a motion cannot be used for the purpose of establishing a fact at the hearing of the cause except by the agreement of the parties.”
The use of the phrase “I believe” or “I find as a fact” was not final and conclusive see State v. Ajie (2000) 11 NWLR (Pt.678) 434, (2000) 7 SC (Pt. 1) pg. 24. With respect, the four cases at pages 175-81 of the record were completely irrelevant having been based on wrong principle of law in support of using affidavit filed in interlocutory application during the pendency of the case. The wrongful evaluation of the evidence engendered a miscarriage of justice as decided in (i) Wilson v. Oshin (2000) 9 NWLR (Pt.673) 442, (2000) 6 SC (Pt. 11) page 1. (ii)Agbanelo v. Union Bank Nigeria Ltd. (2000) 7 NWLR (Pt.666) 534, (2000) 1 SC (Pt. 1) pg. 233.
As in the absence of any agreement as to the intention of the parties in the purchase of the matrimonial home an objective  approach must be made by the court to know and discover the real intention of the parties at the time of contributing as decided in Re(i) Rogers Question (1984) 1 All ER 328 Lord Evershed CJ (ii) Pettitt v. Pettitt (1960) 2 AER pg. 394.
As respondent/appellant made contribution towards the purchase, improvement and expansion of the matrimonial home with knowledge and consent of petitioner/respondent became a trustee of the property as held in Egunjobi v. Egunjobi (1976) 2 Federation of Nigeria Law Reports pg. 78 as follows:
“HELD Since the respondent made her contribution to the building of the matrimonial home, the appellant who was aware of the fact that the respondent was making her contribution by operation of law became from the time the contribution, were made trustee for respondent.”
The property in dispute, became joint property of the parties and the respondent became trustee of the contributions made by the appellant. As the property in dispute had been used as a matrimonial home, since 1988, it was wrong for the learned trial Judge to grant the injunction order against respondent/appellant as the parties were joint owners of the property as petitioner/respondent did not established better title to the disputed property as absolute owner.
By his reply to respondent’s brief of argument urged the court to ignore issue II raised by petitioner/respondent in having not been covered by any of the grounds of appeal. In answer, petitioner submitted that ground 1 raised issue of sole ownership thereby, as a married woman could she own property as a sole owner. The answer is to be found in Married Women’s Property Law, Cap. 7 I of Oyo State and also the Matrimonial Causes Act. In any event, she reformulated issue 2 and therefore competent.
In consideration of the issue, whether as a married woman, petitioner could be the sole owner of 32, Francis Okediji Street, Bodija, Ibadan, the learned trial Judge at pg. 188 considered sections 3 and 4 of Married Women’s Property Edict, 1989 and upheld at pg. 190 of the record of appeal as follows:
“It is my view that a thorough examination and interpretation of these sections is that, a married woman could own property before, during and after marriage. There is no inhibition, she can do this as if she was not paying the regular instalments on the house No. 32, Francis Okediji, Bodija, she could be sued personally. There is no need to join the respondent.”
The plea of respondent/appellant to ignore issue II in petitioner/respondent is refused and rejected. It raised the issue of law whether as a married woman petitioner/respondent could be the sole owner.
I shall now proceed to consider issues 1, 2, and 3 petitioner/respondent’s brief of argument, which were argued together whether from the preponderance of qualitative documentary evidence, she established sole ownership of 32, Francis Okediji Street, Bodija, Ibadan, by the deeds of assignment to her covered by exhibit 46, 47, 48 and 53, and the mortgaged deed covering the disputed matrimonial house.
Petitioner/respondent submitted and contended that no oral evidence was admissible to contradict the content of the deeds of assignment and mortgage, except by the provisions of sections 132 and 133 Evidence Act, which provisos do not apply in this case. The learned trial Judge was therefore light in holding under sections 3 and 4 Matrimonial Women’s Properly Edict and the mortgaged deed executed in her favour as the sole owner, more especially as respondent/appellant signed as witness to the transaction therefore, issue 1 in respondent/appellant’s brief of argument be rejected as lacking in substance with the appeal dismissed as both in law and in fact, petitioner/respondent established her sole ownership of 32, Francis Okediji Street, Bodija, Ibadan and was lightly upheld by the learned trial Judge.
The reply to petitioner/respondent’s brief of argument by appellant was to reject issue II in petitioner/respondent’s brief of argument, which has already been dealt with above in this judgment, lacks substance.
I shall now proceed to consider the issues of the parties which are similar whether the learned trial Judge was right to have declared petitioner/respondent the sole owner of the matrimonial home 32, Francis Okediji Street, Bodija, Ibadan.
It is common ground that petitioner/respondent acquired the right title and interest by a deed of assignment made the 3rd day of  February, 1988, between Mrs. John Barbara Fashola as assignor and Mrs. R. O. Aderounmu, which deed was registered as No.5 pg. 5 in Volume 2808 in the register kept at the Lands Registry in the office at Ibadan. It is pertinent to state that respondent/appellant signed as a witness to the transaction as witness to petitioner/respondent the assignee. The document was admitted as exhibit P47 without objection by respondent/appellant. It covered 32, Francis Okediji Street, Bodija, Ibadan.
On the 7th day of March, 1988, petitioner/respondent mortgaged the property assigned to her in exhibit 47 being the property as the schedule as all that piece or piece of land together with building(s) erected thereon situate, lying and being at Plot D11, Bodija Housing Estate, Ibadan, covered by a Deed Assignment dated 3rd day of February, 1988 and registered as No.5 at pg. 5 in 2808 of the Lands Registry in the office at Ibadan (exhibit 47 supra) to Union Bank of Nigeria Ltd and cause the same to be registered as No. 5 page 5 Volume 3197 of the registry kept at the Lands Registry in the office at Ibadan the said deed was admitted as exhibit 46 in this case. Based on exhibits 47 and 46, petitioner/respondent contended that she established that she was the sole owner of the disputed matrimonial  house 32, Francis Okediji Street, Bodija, Ibadan.
For the respondent/appellant, he contended that the disputed property was extended, renovated and added other improvements that he advanced and spent N300,000.00 on the improvements of the disputed house, he called 3rd DW the building contractor employed to carry out the expansion and improvement of the disputed property. He tendered many cheques admitted as exhibits to cover his contributions. As it was the mutual agreement of the parties that the disputed house be the matrimonial home of the parties hence his contributions of the sum of over N300,000.00 thereby the disputed house became joint property of the parties and the learned trial Judge ought to have declared the disputed property as joint property of petitioner/respondent and respondent/appellant.
After consideration of the evidence adduced before the learned trial Judge he concluded that evidence in support of petitioner/respondent’s case was strong, that of respondent’s/appellant’s was weak as he failed to discharge the burden to dislodge exhibits 47 and 46 made in the name of petitioner/respondent.
It is common ground and trite law that there are five ways to establish ownership of land in Nigeria and that establishment of one out of the five ways is sufficient to grant declaration to ownership Idundun v. Okumagba (1976) 1 NMLR 200 at 210, 19769-10 SC  227,  Adesanya v. Aderounmu (2000) 9 NWLR (Pt. 672) page 370 SC; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) pg. 116 SC; Fasanya v. Adekoya (2000) 15 NWLR (Pt. 689) pg. 22 CA.
The petitioner/respondent relied on due execution and authentication of ownership to the disputed matrimonial house as by exhibit 46 to which respondent/appellant acted as a witness to petitioner/respondent. That she exercised ownership by the deed of mortgage exhibit 47. That she could enter into the contract as a femme sole by virtue of section 3 Married Women’s Property Law Cap. 71, Laws of Oyo State which reads as follows:
“3. Subject to the provisions of this law a married woman shall –
(a)    be capable of acquiring, holding and disposing of any property;
(b)    be capable of rendering herself and being rendered liable in respect of any tort, contract, debt or obligation;
(c)    be capable of suing and being sued, either in tort or in contract, or otherwise; and
(d)    be subject to the law relating to the enforcement of judgments and orders.
In all respects as if she were a feme sole”
Nigerian Family Law by Professor Itse Sagay pg. 761, which was interpreted by the learned trial Judge at pg. 190 of the record of appeal supra.
Petitioner/respondent relied on section 132 Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 that extrinsic evidence was inadmissible to dislodge the sole ownership of petitioner/respondent as established by exhibits 47 and 46.
Section 132 (1) Evidence Act, Cap. 112, LFN, 1990 provides as follows:
“Section 132(1) when any judgment of any court or any other judicial or official proceedings or any contract, or any grant, or order disposing of property has been reduced to the form of a document or series of document, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or  secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained, nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence:
PROVIDED that any of the following matters may be proved –
(a) fraud, intimidation, illegality, want of due execution, the fact that it is wrongly dated, existence, or want or failure, of consideration mistake of fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract: or any other matter which, if proved, would  produce any effect upon the validity of any document or of any part of it, or which would entitle any person to any judgment, decree or order relating thereto.”
Judicially interpreted in the case of Union  Bank of Nigeria Ltd. v. Professor Albert Ojo Ozigi (1994) 3 NWLR (Pt. 333) pg. 385 at 400 per Adio, JSC also at pages 226 and 227, Documentary Evidence.
Law and Practice in Nigeria Afe, Babalola. SAN –
“(1) The general rule is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to. Vary, subtract from or contradict the terms of the written instrument. This is also provided for in sections 131(1) now 132(1) Evidence Act (Olaoye v. Balogun (1990) 5 NWLR (PU48) 24; Eke v. Odolofin (1961) All NLR 842; Macaulay v. NALMerchant Bank (1990) 4 (Pt. 44) 283; Colonial Development Board v. Kamson (1955) 21 NLR 75; Molade v. Molade (1958) SCNLR 208 referred to.
(2) The operation of the parol evidence rule is not limited to oral evidence. It extends to extrinsic evidence in writing such as draft of agreement, preliminary agreements and letters relating to previous negotiations.
(3) General evidence is not admissible as to what passed between the parties before the execution of a written agreement or during its preparation. In this case exhibit “F” was inadmissible because it constitutes extrinsic evidence intended to be used to contradict the mortgage deeds.
(4) Where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning.
(5) The general rule is that where the words of any instruments are free from ambiguity in themselves and
where the circumstances of the case have not created any doubt or difficulty as to the proper application of the words to claimants under the instrument or the subject-matter to which the instrument relates, such an instrument is always to be construed, according to the strict, plain and common meaning of the words themselves. In this case it was wrong to import into clause 3 of the Mortgage Deeds extraneous matters. Such as the requirement that the appellant obtain the prior consent or give prior notice of increase in the rate of interest on the loan to the respondent.
Applied and followed in Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (1996) 10 NWLR (Pt. 476) pg. 1 SC; Layade v. Panalpina World Transport (Nig) Ltd. (1996) 6 NWLR (Pt. 456) pg. 544 SC: Shell Pet. Dev. Co. (Nig.) Ltd. v. Tiebo VII (1996) 4 NWLR (Pt. 445) pg. 657 CA: New Ltd. v. Denap Ltd. (1997) 10  NWLR (Pt. 525) pg. 481 CA; Okonkwo v. CCB (Nig.) Plc & Ors. (1997) 6 NWLR (Pt. 507) pg. 48 CA; Opigo v. Yukwe (1997) 6 NWLR (Pt. 573) pg. 338 CA; UBN Ltd. v. Ayoola (1998) 11 NWLR (Pt. 573) pg. 338 CA; NBC Plc v. Okwejiminor (1998) 8 NWLR (Pt. 561) pg. 295 CA; Lawal v. Morohunfola (1998) 1 NWLR (Pt. 532) pg. 111 CA.”
Applying the above to this appeal as parties relied on exhibits 47 the deed of assignment of the parcel of land covered by it and to which respondent/appellant was witness to petitioner/respondent the former has not established that the proviso to section 132(1) Evidence Act covered the case to enable extrinsic or oral evidence admissible that exhibit 47 was joint property, through the sum contributed by appellant notwithstanding that the learned trial Judge found as a fact that many of the cheques had no positive connection with the disputed house. Also, they could not be acceptable as note or memorandum of transaction connected with the disputed house or land transaction of it. The findings of facts were not perverse so as an appellate court there is no legal basis or justification to disturb or interfere with the said findings as they were not perverse.
After due consideration of the arguments on issues 1 and 2 in respondent/appellant’s brief of argument about the declaration that petitioner/appellant was sole owner of all that piece or parcel of land covered by exhibit 47 applying the rule quid quid plantatur solo, solo cedit that whatever is affixed to the soil belongs to it as the disputed matrimonial house is affixed to all that piece or parcel of land assigned in exhibit 47 to petitioner/respondent to which respondent/appellant was a witness he is estopped from laying joint ownership to the property covered by exhibit 47 as the proviso to section 132(1) Evidence Act supra is not applicable, so the learned trial Judge was right to declare the petitioner/respondent the sole owner of 32, Francis Okediji Street, Bodija, Ibadan, as established by exhibits 46 and 47. Issues 1 and 2 in appellants brief of argument are resolved against respondent/appellant for the reasons given above the appeal on this issue is unmeritorious and is dismissed on this Issue.
Issue 2 appellants brief has been subsumed by issue 1 as petitioner/respondent was declared the owner of 32, Francis Okediji Street to secure unlawful interference with the possession and ownership from committing acts of trespass the order for injunction against the respondent/appellant, issue 2 in appellants brief or argument lacks merit it is resolved against the appellant.
Issue 3 in appellant’s brief, raised the issue whether the learned trial Judge was right in granting ownership and possession of Land Rover Jeep with registration No. OY7768BD in favour of petitioner/respondent contrary to the undisputed fact that the motor vehicle was registered with the licensing authority in the name of respondent/ appellant as shown in exhibit R 17 the registration of owner of OY768BD with exhibit R 17 shown expiry dates of July 94, July, 95. Feb. 96 and Apr., 97 described by Oyo State Licensing Authority as owned by Mr. Lanre Aderounmu a Land Rover. It is common ground that the Land Rover was registered in the name of the respondent/appellant. At page 190 of the record of appeal the learned trial Judge gave order:
“(3) The respondent shall also hand over the Land Rover Jeep with registration OY7768BD, forthwith irrespective of the fact the respondent registered the vehicle in his name.”
Appellant’s contention on issue 3 of his brief was that the learned trial Judge did not evaluate the evidence given by the appellant as the learned trial Judge ignored the evidence of 4th DW the mechanic who worked on the vehicle. As the finding was based on oral and documentary evidence not properly evaluated the Appeal Court should intervene and grant the ownership of the vehicle to respondent/appellant reliance was based on the cases of Fashanu v. Adekoya (1974) 6SC 83 at 100 and Okpiri v. Jonah (1961) 1 SCNLR 174, (1961) 1 All NLR 102 at 104-105. The petitioner/respondent failed to discharge the onus of proof that she was the rightful owner of the vehicle.
Issue 3 is similar to issue 4 in petitioner/respondent’s brief of argument whether she proved her sole ownership of the Land Rover Jeep with registration OY7768BD. She submitted and contended to reject appellant’s submission that the learned trial Judge failed to evaluate the evidence properly. Respondent contended that there was no evidence that linked the cheques issued to her by respondent/appellant with the purchase of the Land Rover, as the learned trial Judge evaluated the evidence properly issue 3 raised by respondent/appellant be rejected as per exhibit 1. The owner of the vehicle issued exhibit 1 to effect ownership but without her knowledge respondent/appellant registered the vehicle in his name.
Relief F sought in the divorce proceedings an ancillary relief was in respect of Land Rover Jeep with registration OY7768BD and the order made to hand over Land Rover Jeep was with registration No. OY7768BD as order 3 at page 190 of the record of appeal.
It is common ground that the vehicle was registered in the name of respondent/appellant. Exhibit 1 was in respect of vehicle OY7768BD. Exhibit R 17 covered vehicle OY768BD. Section 36 Road Traffic Law, Cap. 115 of Oyo State provides as follows:
“36. In any cause or matter, relating to a motor vehicle or to any licence, permit, certificate or other document issued under this law or any regulation made hereunder, the production of a document purporting to be a copy of a licence, permit, certificate or other document as aforesaid, by or from the records of the Central Registrar or any officer deputed by him for that purpose, shall be prima facie evidence of any matters fact or thing stated or appearing thereon.”
Judicially interpreted being ipsissmis verbis section 47, Road Traffic Law, Cap. 124, Laws of Lagos State, 1973, in International Merchant Bank (Nig.) Ltd. v. (1) N. Abiodun  Dabiri (2) National Oil and Chemical Marketing Co. Ltd. (3) The Deputy Sheriff, Lagos State High Court (1998) 1 NWLR (Pt. 533) page 284, applying the said case by virtue of exhibit R 17, the respondent/appellant is prima facie registered owner of Land Rover OY768BD, whilst the claim or relief was in respect OY7768BD at page 173 and 190 of the record of appeal.
The order for surrender of Land Rover as claimed at page 13 of the record of appeal as paragraph 12(e) was vehicle No. OY17768BD. In paragraph 31 of the answer deposed to was with registration No. OY 17768BD. At page 104 of the record of appeal relief (e) was in respect of Land Rover Jeep OY7768BD.
1st PW at page 113 testified he sold vehicle OY768BD to petitioner as shown in exhibit P1. At page 130 respondent/ appellant testified in the record of appeal about the purchase of Jeep OY786BD. In his address at page 163 the Land Rover was described and registered as OY768BD.
At page 173 of the record of appeal being judgment of the learned trial Judge he stated relief (f) was in respect of Land Rover OY7768BD which was repeated at page 190 of the record.
Issue 3 in appellants brief of argument at page he described the vehicle as OY17768BD and paragraph 2.03 page 2 the complaint was in respect of OY7769BD, also at page 4 paragraph 3.03 being issue 3 in its argument at page 9 the registration number did not feature. Petitioner/respondent referred to registration of the Land Rover Jeep throughout the brief as OY7768BD.
I have pointed out the confusion about the registration of the Land Rover Jeep deliberately and advisedly to draw the attention of parties to ensure that their reliefs or claims are properly recorded and proper order made in accordance with the relief or claim before the court. In the instant appeal, the Land Rover Jeep OY7768BD, whilst the proper registration are exhibits P1, and R.17. no mistake was raised about order 3 at page 190 of the record being Land Rover registration OY7768BD, from where the learned trial Judge derived OY7768BD is shrouded in mystery. The Range Land Rover is OY768BD, so the order of surrender was in respect of OY7768BD as equity does nothing in vain the order against respondent/appellant was in respect of Land Rover Jeep with registration number OY7768BD and not OY768BD as no mistake was raised before this court nor leave to amend the record, the order stands to surrender Land Rover with registration number OY7768BD but by virtue of section 36 supra Road Traffic Law, Cap. 71, Laws of Oyo State the registered owner of Land Rover Jeep OY768BD is respondent/appellant and no valid order has been made to surrender OY768BD.
Assuming the order was OY768BD applying section 132(1) Evidence Act supra extrinsic or oral evidence shall be admissible to change the ownership unless it is covered as an exception in the proviso to section 132(1) Evidence Act.
Applying section 16, Court of Appeal Act, Cap. 75 that there is much force in the argument that the learned trial Judge did not evaluate the evidence properly since it does not involve credibility of witnesses this court can re-evaluate the evidence. The lis is Land Rover Jeep OY768BD and not OY7768BD.
That as by virtue of section 36 Road Traffic Law of Oyo State Cap. 71, respondent/appellant is prima facie the owner of the vehicle and no ground to invoke the proviso to section 132( 1) Evidence Act issue 3 is therefore, resolved in favour of respondent/appellant notwithstanding the confusion as set out the proper registration of the Land Rover Jeep the respondent/appellant was to surrender.
Issue 4 in both briefs of arguments was about the award of costs complained of by respondent/appellant as excessive whilst petitioner/respondent considered to be reasonable and should not be interfered with.
Costs follow the event of what transpired throughout the proceedings. It is awarded to compensate the successful party and not to punish unsuccessful party. It is based on compensatory theory, put in the legal maxim of restitutio in integrum that is to compensate the party for damage or loss in reasonable moneys worth, the award is at the discretion of the court acting judicially and judiciously Wurno v. VAC Ltd. (1960) SCNLR 461: Regd Trustees ECWA Church v. Ijesha (1999) 13 NWLR (Pt. 635) page 368 CA.
The attitude of the Court of Appeal towards the exercise of discretion by the trial court is well settled, one area of interference is where the trial court exercised the discretion on wrong principle of law Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 CA; Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) pg. 320 SC. Applying the above to the award of costs, by the lower court I see no wrongful exercise of the judicial discretion by the lower court considering as shown in the printed record the length of trial that in the circumstances of the case the award of costs of N10,000.00 was reasonable. The complaint of respondent/appellant against the award of costs lacks merit and it is unmeritorious the issue is resolved against the appellant.
As the appeal is dismissed on issues 1, 2 and 4 in appellants brief of argument, but allowed on issue 3, I fix the cost in favour of petitioner/respondent in the sum of N7,500.00 (Seven Thousand Five Hundred Naira) against respondent/appellant.

TABAI, J.C.A.: I was privileged to read, in advance, the leading judgment prepared, by my learned brother, Onalaja, JCA. The facts are very clearly, set out in the leading judgment. And the legal issues involved are, in the usual manner, exhaustively and admirably discussed. I agree entirely with the reasoning and conclusion therein.
The subject property No. 32, Francis Okediji, Bodija, Ibadan, was assigned to the petitioner/respondent, Mrs. O. O. Aderounmu, by the assignor, Mr. John Barbara Fashola the 3rd day of February, 1988. The said Deed of Assignment duly registered was evidenced in exhibit 46. It was however, witnessed by the respondent/appellant, Mr. Olanrewaju Aderounmu. Under section 132 of the Evidence Act. Cap. 112. Laws of the Federation of Nigeria, no extrinsic evidence – oral or documentary is admissible to add to, vary, subtract from or contradict the terms of a written instrument. The result is that title to and interest in the property remains with the petitioner/respondent and the 1st issue based thereon is accordingly also resolved by me in favour of the petitioner/respondent.
With regard to the question of the ownership of the Land Rover Jeep No. OY1768BD, exhibit R17 under section 36 Road Traffic Law of Oyo State Cap. 115, Laws of Oyo State. 1978, raises a rebuttable presumption of its ownership in favour of the respondent/appellant. There is no sufficient evidence in rebuttal of this presumption. The inevitable conclusion therefore, is that the respondent/appellant is its owner. The 3rd issue based thereon is accordingly resolved in favour of the respondent/appellant.
For these and the fuller reasons contained in the leading judgment, I also, dismiss the appeal on issue 1, 2 and 4, and allow the appeal on issue 3. I also, abide by the order on costs in the leading judgment.

ADEKEYE, J.C.A.: I had the privilege of a preview of the judgment, just delivered by my learned brother, M. O. Onalaja, JCA. I agree with the reasoning and conclusion that the germane issues for determination in this appeal, are straight forward and within narrow limits. They touch upon the determination of matrimonial properties – a residential building No. 32, Francis Okediji, Bodija, Ibadan, and a Land Rover Jeep, registered as OY7768BD between spouses in a divorce petition. The learned trial Judge in his judgment gave both properties to the petitioner/ respondent before this court. Evidence to establish ownership before the trial court was documentary. The petitioner acquired title and interest by a deed of assignment made on the 3rd day of February, 1988, between Mr. John Barbara Fashola as assignor and Mrs. R. O. Aderounmu – the petitioner/respondent as assignee. The respondent/ appellant was witness. The deed was registered as No.5 page 5 in Volume 2808 at the Lands Registry Office, Ibadan. The deed was exhibit 46 before the trial court. On the 7th day of March, 1988. the petitioner/respondent mortgaged the property assigned to her in exhibit 46 to the Union Bank of Nigeria  Limited, which mortgaged deed was registered as NO.5 page 5 volume 3197, at the Land Registry Office -Ibadan. Exhibit 47 at the trial court. In the case of the Land Rover Jeep, with registration No. OY7768BD, the motor vehicle was registered with Licensing  Authority in the name of the respondent/appellant as shown in exhibit 17. The Oyo State Licensing Authority, indicates the owner in the registration of ownership – of the vehicle OY7768BD as Mr. Lanre Aderounmu – the respondent/appellant. It is trite law that by virtue of section 132 (1) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, where parties have reduced the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary or subtract from or contradict the terms of the written instrument. In this appeal – no extrinsic evidence shall be admissible to vary or contradict the ownership of the building 32, Francis Okediji Street, Bodija Estate, Ibadan, vested in the petitioner/respondent, neither will such evidence be admissible to divest the respondent/ appellant of the ownership of the Land Rover Jeep, registered as OY7768BD. However, section 132(1) of the Evidence Act, creates five distinct exceptions to the general rule, when parol evidence may be admissible for the interpretation of (a) Any judgment of any court or any other judicial or official proceedings, (b) Any contract, (c) Any grant or other disposition of property which has been reduced into writing. The instant case does not fall within these exceptions. Salamotu v. Biba (1975) NNLR pg. 176; Ebueku v. Amola (1988) 2  NWLR (Pt. 75) at pg. 128; Gurara Securities & Finance Ltd. v. T.I.C. (1999) 2 NWLR (Pt. 589) pg. 29; NIDB  v. De-Easy Life Electronics (1999) 4 NWLR (Pt. 597) pg. 8; Fasogbon v. Layade (1999) 11 NWLR (Pt. 628) pg. 543; Bank of the North Ltd. v. Akintoye (1999) 12 NWLR (Pt. 631) pg. 392; Adika v. Obiareri (2002) 4  NWLR (Pt. 758) pg. 537.
An appeal against the issue of costs awarded by a trial court, is asking an appellate court to interfere with the exercise of discretion of that court. On the issue of costs, an appellate court will not interfere with the exercise of discretion by a trial court in the costs awarded, simply because if faced with similar application, it would have exercised the discretion differently. An appellate court will only interfere with the costs of N10,000, if it is necessary to do so in the interest of justice. University of Lagos v. Olaniyan (No. 1)(1985) 1 NWLR (Pt. 1) pg. 156; Worbi v. Asamanyuah 14 WACA 669; Enekebe v. Enekebe (1964) All NLR pg. 102; Mobil Oil v. Federal Board of Internal Revenue (1977) All NLR pg. 324.
I agree with leading judgment, that the complaint of the respondent/appellant against the award of costs lacks merit. I also, dismiss this appeal on issue 1, 2 and 4, and allow it on issue 3. Costs is fixed in the sum of N7,500 against the respondent/petitioner.

Appeal allowed in part.

 

Appearances

  1. A. OgunwoleFor Appellant

 

AND

Olukunle KamisiFor Respondent

 

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