OLUWOLE v. OLATUNJI
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, June 01, 2021
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
AKINGBASOTE OLUWOLE APPELANT(S)
PASTOR AKIN OLATUNJI (For Himself And On Behalf Of The Family Members Of Late Rufus Olatunji Akingbasote) RESPONDENT(S)
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State delivered by Hon. Justice O. A. Adegbehingbe in Suit No. AK/179/2018, on 1st August 2019.
The judgment was predicated upon the suit of the Respondent, who at the lower Court as claimant sought the reliefs hereunder stated against the Appellant as defendant:
a. A DECLARATION that all the title documents handed to the Defendant are family properties of late Rufus Olatunji Akingbasote which devolves on his children under Yoruba native law and custom upon his demise, the deceased having died intestate.
b. An ORDER for the release of all title documents handed over to the Defendant pending when the documents will be collectively deposited in the bank of the family’s choice which he held in trust for the family of late Rufus Olatunji Akingbasote to the Claimant as the Head of the Family.
c. An ORDER on the Defendant to pay to the Claimant’s family the total sum of N1,656,000 being rent collected on behalf of the family over the property at No 2 Eru-Oba Tutun Street (off Idanre Road) Oke Aro and at No 1 Ehinpeti Street Odode Idanre respectively.
d. An ORDER that the Defendant pays to the Claimant’s family the sum of N1,800,000 (One million eight hundred thousand naira) being proceeds made from the Cocoa plantation at No 1 Owena Road Gberiwojo Idanre from 2008 to 2016.
e. An ORDER OF PERPETUAL INJUNCTION restraining the Defendant from dealing with any of the family properties of late Rufus Olatunji Akingbasote without the consent of the Head of family and other Principal members of the family.
The facts upon which the reliefs are based are contained in the claimant’s 25 paragraphs statement of claim. The statement of claim was accompanied with the claimant’s list of witnesses, claimant’s witness statement on oath and that of his lone witness, Mr. Olatunji Sunday.
Further accompanying the statement of claim are list of documents and photocopies of the said documents.
The defendant denied the claimant’s claims, and in furtherance thereto, he filed a statement of defence of 15 paragraphs. The statement of defence is accompanied with the defendant’s witness statement on oath and that of his lone witness, Odunmorayo Akingbasote. Also filed by the defendant was list of witnesses, list of Exhibits and photocopies of the said Exhibits.
The claimant reacted to the statement of defence by filing a reply to the statement of defence of 18 paragraphs. Filed along with the reply is the Additional Statement on oath of the claimant.
At the trial, the claimant testified by adopting his two written statements on oath as his evidence. He also tendered the frontloaded documents in evidence, which were admitted in evidence and marked as Exhibits P1-P7. He was cross-examined.
The defendant did not testify but called one witness whose statement on oath was filed along with his statement of defence. The witness testified by adopting his witness statement on oath, and was cross examined.
Thereafter, parties filed and exchanged their counsel’s final written addresses which were adopted as counsel’s final oral submissions in the case.
In his judgment, the learned trial Judge granted the claimant’s reliefs.
The defendant, not satisfied with the judgment filed an appeal to this Court. The original notice of appeal which contained one ground of appeal was filed on 23rd August, 2019. The defendant (now “appellant”) subsequently sought and obtained leave of Court to amend his notice of appeal.
The amended notice of appeal which contained three (3) grounds of appeal was filed on 14/9/2020, and deemed properly filed and served on 16/9/2020.
The grounds of appeal, shorn of their particulars are as follows:
The trial Judge erred in law when he held that the Respondent is entitled to the grant of his claim for rent and the proceeds from cocoa plantation allegedly collected by the Appellant when there was no strict proof of the claim.
The Learned Trial Judge erred in law when he held that the Appellant (Defendant) misconducted himself when he sold the property in the estate without the consent or authority of members of the Rufus Olatunji Akingbasote family or that of the Respondent.
The Learned Trial Judge erred in law when he assumed jurisdiction and granted the Respondent’s claims contained in paragraph 2(c) and (d) of the statement of claim for rent and the proceeds from cocoa plantation allegedly collected by the Appellant from 2008 to 2016, when in actual fact, the claims were statute barred.
The record of appeal duly compiled and transmitted, parties filed and exchanged their briefs of argument.
The Appellant’s Brief of Argument settled by Onimisi F. Umar, Esq. was filed on 14/9/2020, and deemed properly filed and served on 16/9/2020. In the said brief the Appellant distilled three issues, one each from the three grounds of appeal, for the determination of the appeal.
The Respondent in his brief of argument, which was settled by A. A. Ojopagogo, Esq., filed on 2/3/21 and deemed properly filed and served on 3/3/2021, adopted the three issues formulated by the Appellant for the determination of the appeal.
I consider the three issues formulated by the Appellant and adopted by the Respondent apt for the determination of the appeal, and adopt same; and hereby proceed to consider the appeal based on the issues seriatim.
Whether the trial Judge was right to have granted Respondent’s claims as contained in paragraph 25(c) and (d) which are special damages without same being strictly proved? (Ground 1).
SUBMISSIONS OF COUNSEL
Appellant’s counsel submits that the Respondent’s claims as contained in paragraph 25(c) and (d) are for monies allegedly collected by the Appellant without same being specifically pleaded and strictly proved. He submits that special damages must be specifically pleaded with particularity and must be strictly proved, and that special damages do not lead to conjecture. Counsel relies on the case of Eneh V. Ozor & Anor but did not provide the full citation, which is as good as not citing the case. Further submits that the Respondent did not mention the person from whom the Appellant collected the rents referred to in particular paragraphs of his statement of claim. Ditto for the money allegedly collected for the Cocoa Plantation referred to. Counsel further submits that the Respondent in paragraph 23 of the statement of claim pleaded reliance on various receipts and all relevant documents, but ended up not tendering the said receipts.
The said failure, counsel submits, amounts to withholding evidence and relies on Section 167(d) of the Evidence Act, 2011. Counsel relies also on the case of Atanda Gasali Lawal V. Isiaka Magaji & Ors (2009) LPELR-4427 (CA). Counsel further submits that it is trite law that where the precise amount of a particular item has become clear before the trial, either because it has already occurred, or so became crystallized or because it can be measured with complete accuracy, this exact loss must be pleaded. Counsel relies on the case of Ighedo V. PHCN (2018) 1 SCM 77 at 108-109 paras I-A. Counsel thus submits that the Respondent’s claims in paragraphs 25(c) and (d) by their nature are special damages and have also crystallized at the date that Respondent went to Court.
Counsel therefore submits that the holding of the lower Court at page 15 amounts to abdication of the position of the law that he who alleges must prove. Again, counsel relies on the case of Ighedo V. PHCN (Supra) at page 109 paras E-F, and Amadi & Ors V. Amadi & Ors (2016) 12 SCM (Pt 2) 64 at 80-81 paras C-A.
Counsel therefore submits that the Respondent failed to prove the special damages on the amount received as collected by the Appellant on behalf of the family.
Learned counsel to the Respondent concedes the submission that before an award of special damages can be made, it must be strictly and specifically proved.
Counsel however submits on the authority of Oando (Nig) Ltd V. Adijere (W. A) Ltd (2013) 15 NWLR (Pt. 1377) that where a claim for special damages by the plaintiff is not specifically denied and the defence has not suggested a contrary figure, minimal evidence is needed to sustain the claim. Counsel submits that the facts which constitutes the said claims (c) and (d) were not denied by the Appellant in his statement of defence. Therefore, asking the Respondent to prove facts which the Appellant is deemed to have admitted is not only superfluous but wrong. Counsel further submits that the Appellant’s refusal to respond to the Respondent’s demand letter “Exhibit P. 6” on page 26 of the record of appeal is an admission of the contents of same. Reliance is placed on the cases of Advance Coating Technology (Nig) Ltd V. Express International Plant Hire (Nig) Ltd (2019) LPELR-47833, Trade Bank PLC V. Chami (2003) 13 NWLR (Pt. 336) 158, Oruwari V. Osler (2013) NWLR (Pt. 1348) 535, and the case of N. B. Co Ltd V. Ubani (2014) 4 NWLR (Pt. 1398) 42.
Counsel also submits that the Respondent pleaded and testified to the fact that the title documents of all the properties were with the Appellant who refused to return them to him despite repeated demands. That this piece of evidence was not controverted by the Appellant, rather there was a confirmation of same by the Appellant’s sole witness. Counsel submits that this amounts to withholding evidence, and cites the case of Atanda Gasali Lawal V. Isiaka Magaji & Ors (2009) LPELR – 4427 (CA), and Section 167(d) of the Evidence Act, 2011.
Counsel submits that the evidence of the Appellant’s witness that the Appellant collected the rents but could not ascertain whether he paid it into the family account amounts to admission by the Respondent.
Counsel further submits that it is the law that evidence which is not contradicted or denied is deemed to have been admitted. That apart from the evidence led, the fact that an averment is not denied is enough to admit it in evidence. Reliance is placed on the case of Cappa & D’Alberto Ltd V. Akintilo (2003) 9 NWLR (Pt. 824) 49 ratio 6 and other cases stated in paragraph 4.09 of the Respondent’s brief of argument.
Further submitted is that in the circumstances of this case, proof of special damages may not be strictly required since evidence not contradicted or denied is deemed admitted.
The general position of the law is that special damages must be specifically pleaded with distinct particularity and must be strictly proved. In the case of Union Bank of Nigeria Plc V. Alh. Adams Ajabule & Anor (2011) LPELR-8239 (SC), it was held:
“…special damages are damages which the law does not infer from the nature of an act but which are exceptional in character. Special damages denote those pecuniary losses which have crystallized in terms of cash and value before trial. It is the kind of damages which though based on the discretion of the trial Court, such must be backed up by credible evidence adduced before the trial Court which strictly proves the plaintiff’s entitlement to the award. It is therefore settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence. Without such proof, no special damages can be awarded. Ijebu-Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (pt.166) pg.136. Osuji v. Isiocha (1989) 3 NWLR (pt.111) pg.623. Alhaji Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (pt.606) pg.330.”
Per ADEKEYE, J.S.C. (Pp. 35-36, paras. F-B).
The apex Court shed light on what strict proof in the context of special damages is in the case of Gonzee (Nig) Ltd V. Nigeria Educational Research & Development Council & Ors (2005) LPELR-1332 (SC).
Infact, the extent of the requirement of strict proof of special damages was brought to bear in the case of NNPC V. Clifco (Nig) Ltd (2011) LPELR-2022 (SC), where the apex Court held:
“Evidence ought to be led before an award for special damages is granted. To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the Court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the Court.”
Per RHODES-VIVOUR, J.S.C. (P. 30, paras. B-E).
As submitted by the Respondent’s counsel, the facts upon which the Respondent’s claims (c) and (d) are predicated are contained in paragraphs 18, 19, 20, 21 and 22 of the statement of claim.
I have read the Respondent’s statement of claim. Claims 25(c) and (d) are in respect of rents collected and not accounted for, and proceeds of sale of Cocoa Plantation at No 1 Owena Road Gberiwojo Idanre from 2008-2016. Paragraphs of the statement of claim pertaining to those claims are paragraphs 20, 21, 22 and 23 of the statement of claim.
The requirement of the law is that being special damages, it must be specifically pleaded with relevant particulars and must be proved with credible evidence.
In my view relevant particulars would include in this case, facts as to whether there were occupants in all the rooms in the premises in all the years stated, necessary tenancy agreements entered into between the tenants and the Respondent, and the fact that all the tenants paid their rents when due, supported with all the relevant receipt for the payment of the rents. It is therefore without doubt that the Respondent did not plead the relevant particulars of special damages claim.
However, the contention of the Respondent is that the need to do so was obviated by the fact that the Appellant did not deny those claims in his statement of defence. Furthermore the Respondent’s contention is that there was an admission by the Appellant’s witness that the Appellant collected the said rents, only that he did not know whether the Appellant paid same into the family’s account. That it therefore amounts to admission by the Appellant. Further contended by the Respondent is that the Appellant failed to reply to his demand letter (Exhibit P6), and in law, it amounts to admission of the contents of the said Exhibit P6. That in the circumstances, the burden of proof on him is minimal.
On when the burden of proof on a plaintiff is said to have been discharged on a minimal balance, the apex Court in the case of Alh. Abdullahi Baba V. Nigeria Civil Aviation & Anor (1991) LPELR – 692 (SC) held:
“…whenever on an issue, evidence comes from one side and this is unchallenged and uncontradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal should have believed it. So, when evidence goes one way, the onus of proof is discharged on a minimal of proof. This is the result of all the decided cases including N.I.C.O.N. v. Power & Ind. Engineering Co. Ltd., (1986) 1 N.W.L.R. (Pt. 14) 1 p.27; Nwabuoku v. Ottih (1961) 2 SCNLR 232; Nigerian Maritime Service Ltd v. Afolabi (1978) 2 S.C. 79.”
Per NNAEMEKA-AGU, J.S.C. (P. 32, paras. A-D).
Now, in the entirety of the Appellant’s statement of defence, he refused to say anything on the Respondent’s claim as contained in paragraph 25(c) and (d). The law is long settled that a fact is deemed admitted if it is neither denied specifically nor by implication. See the case of Odede & Anor V. Jonah & Anor (2019) LPELR-49040 (CA), at pp 25-26, paras F-C, CITI Bank (Nig) Ltd V. Ikediashi (2020) LPELR-49496 (SC), CBN V. Interstella Communications Ltd & Ors (2017) LPELR-43940 (SC), per Ogunbiyi, J.S.C. (P62 Para D).
Therefore, by not specifically denying the claims as contained in paragraphs 25(c) and (d), or by implication, in the statement of defence, or even making any reference to them at all, the Appellant is deemed in law to have admitted same.
In support of the claims, the Respondent gave evidence as contained in his written statement on oath which he adopted as his evidence in the case in proof of his claims. The evidence of the Respondent is as contained on pages 163-167 of the record of appeal. Pages 166-167 contains the Respondent’s cross examination on his evidence.
There is nothing in there to suggest that the Appellant cross examined the Respondent on his claims for rents and proceeds from the Cocoa plantation. The law is settled that failure to cross examine a witness called by the adversary on a material point is an admission of that fact. See Amadi V. Nwosu (1992) LPELR-442 (SC), P. 20 paras A-C, Isah V. State (2017) LPELR-43472 (SC), pp 18-19, paras D-A, Egwumi V. State (2013) LPELR-20091 (SC) 20, paras B-D, Esene V. State (2017) LPELR-41912 (SC) pp. 40-41, paras E-A.
Having failed to cross examine the Respondent on these claims, the Appellant is deemed to have admitted the Respondent’s evidence on those claims.
The evidence of the Appellant’s sole witness is contained on pages 168-170 of the record. Under cross examination, the said witness, Odunmorayo Akingbasote testified thus at pages 168-170 of the record of appeal:
“… I agree that the defendant used to collect rent from the family property in Akure and Idanre. I will not know whether the defendant remits the income into the family’s Bank account.”
This piece of evidence is an admission against interest, and is relevant and admissible. See the case of Doherty & Anor V. Sunmonu & Ors (2018) LPELR-46725 (CA), p. 21 paras B-D.
The Appellant has faulted the judgment of the lower Court in view of the Respondent’s failure to tender the receipts for payment of rents which he pleaded. The Appellant’s counsel urged the Court to hold that the failure to tender the receipts amount to withholding evidence, and that the Court should invoke Section 167(d) of the Evidence Act.
I had in the course of this judgment stated that the failure of the Appellant to specifically deny the Respondent’s claims on rents and the proceeds from the Cocoa plantation amounts to admission of the Respondent’s averments relative to those claims. Let me now carry it further. The law is also settled that facts admitted need no further proof – See: Baalo V. FRN (2016) LPELR-40500 (SC), pp42-43, paras F-A, Sunday Offor & Anor V. The State (2012) LPELR-19658 (SC), p. 31, para A, Ndukwe V. LPDC & Anor (2007) LPELR – 1978 (SC), p64, paras C-D.
Now, since facts on which those claims were predicated are deemed admitted, and admitted facts need no proof, it was therefore superfluous for the Respondent to take the trouble to tender the receipts pleaded which would have been necessary to prove those averments. Therefore, I do not agree with the Appellant that the failure to tender the receipts pleaded amounted to withholding evidence.
Before the Respondent approached the lower Court for redress, he instructed his counsel to write a demand letter to the Appellant. This demand letter was admitted in evidence as Exhibit P6. The Respondent pleaded this fact and the demand letter, and the fact that the Appellant did not reply to the demands in the said letter. The Appellant did not deny the fact that he was served the said demand letter before the action and that he did not reply to it. Clearly the Appellant did not reply to Exhibit P6. As submitted by Respondent’s counsel, in law the failure to reply to the letter amounts to admission of the contents. On this, I rely on the authorities cited by the Respondent’s counsel, especially, the case of Advanced Coating Technology (Nig) Ltd V. Express International Plant Hire (Nig) Ltd (2019) LPELR-47833 (CA), P. 31, paras A-E.
I need to make this point, my lords. In a claim for declaratory reliefs, the plaintiff must only succeed on the strength of his case and cannot rely on the weakness of the defence. It cannot be granted merely on default of defence or even on admission. See: Kwajaffa & Ors V. B.O.N. Ltd (2004) LPELR-1727 (SC) P. 22, paras E-F, Salau & Ors V. Para-Koyi (2000) LPELR-5920 (CA), Akaninwo V. Nsirim & Ors (2008) LPELR – 321 (SC), pp 71-72, para E.
The instant case is not one for declaration of rights and therefore, the fact that the Appellant failed to specifically deny the claims, and by implication is a relevant fact. Therefore, unlike in a claim for declaratory relief, the Court is entitled to act on the Appellant’s implied admission of the claims in paragraphs 25(c) and (d) and the admission against interest made by the Appellant’s witness, in addition to his failure to cross-examine the Respondent on his evidence on these salient points/facts.
No doubt the evidence in this case has gone only one way, and therefore the onus of proof is discharged on minimal proof. See the case of Alh. Abdullahi Baba V. Nigeria Civil Aviation & Anor (Supra).
I must therefore resolve issue one in favour of the Respondent and against the Appellant.
Whether having regard to the pleadings of the parties and evidence before the lower Court, the trial Judge was right to hold that the Appellant misconducted himself when he sold the property contained in Exhibit P7 without the consent of the Respondent?
SUBMISSION OF COUNSEL
Appellant’s counsel submits that in evaluation of evidence by the trial Court, the Court should consider all the evidence (oral and documentary) and put the evidence of the respective parties on each side of the scale of justice to see which is heavier, or to which side it tilts. He submits that the trial Court failed to advert its mind to Exhibits P3 and P4, which counsel submits reveals that the allegation that the Appellant sold the properties without the Respondent’s consent is an afterthought. That to the contrary the Exhibits reveal that he was given permission to sell the properties. Counsel submits that the Respondent’s evidence under cross-examination that the Appellant declared N4 million to the family debunked the fact that he did not give his consent or was not aware of the fact of sale of the property. Counsel therefore concludes that what angered the Respondent and prompted him to sue was not the fact that the property was sold without his consent or authority but because only a lesser amount than what the property was sold for was declared.
Counsel further submits that it is trite law that the best evidence of the contents of a document is the document itself. That when a transaction has been reduced into writing, the writing becomes exclusive record thereof, and that no evidence may be given to prove the terms of the transaction except the document itself or secondary evidence of its documents. Refers the Court to CC & Industries SPR Ltd V. Ogun State Water Corporation (2002) 9 NWLR (Pt. 773) 269 at 654-655 paras H-A. Counsel also refers us to Section 128 of the Evidence Act, 2011, the case of Bunge V. Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573 at 616-617 paras G-A and the case of Larmie V. D.P.M. & Services Ltd (2005) 18 NWLR (Pt. 958) 438 at 470 paras C-D.
Counsel submits that the reliance of the trial Court on the oral evidence of the defence counsel under cross examination to conclude that the Appellant misconducted himself in selling the property is perverse and should be set aside. He further submits that the trial Court ignored the contents of Exhibits P3 and P4 in its judgment, and has thus occasioned miscarriage of justice.
Counsel urged the Court to set aside the judgment of the trial Court in the grant of prayers (a), (b) and (e).
Respondent’s counsel submits on this issue that Exhibits P3 and P4 referred to by the Appellant did not in any way confer on the Appellant, the authority to sell the property contained in Exhibit P7.
Counsel refers to the 4th and 5th lines of the second paragraph of Exhibit P4, and submits that if the phrase “revert back to them accordingly” gave the Appellant the authority to sell without the consent of the Respondent there would not be any need to revert back accordingly.
Counsel submits that custody of the documents confer no right to outright sale of the family property without the consent or blessing of the Head of the family.
Counsel submits that moreso, the Appellant’s witness admitted under cross examination that the family did not decide that any of the properties in the deceased’s estate be sold. He refers to paragraph 2 of page 169 of the record of appeal. Further submitted is that oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made where such memorandum was not intended to have legal effect as a contract, grant or disposition of property. Counsel refers to Section 128(2), and (3) of the Evidence Act, 2011. He submits that oral evidence is not to be allowed to vary or alter documentary evidence, but that there are exceptions, and refers to Section 128(1) (a-e) of the Evidence Act, 2011 in which the exceptions are spelt out.
Counsel reiterates his earlier argument that the Appellant misconducted himself and grossly too, in that he purportedly put out one Samuel Akinleye as the head of the family of Rufus Olatunji Akingbasote.
The crux of this issue rests on Exhibits P3 and P4.
Exhibit P3 is titled
“Application for the release of all the original certificates and other property documents submitted to your office back to us”;
Exhibit P4 is titled “Acknowledgement of Receipt of Landed Property Documents Released By The Police”
The arguments of the two counsel are centred on Exhibits P3 and P4, particularly, Exhibit P4 as to whether or not the Appellant was given consent to sell the property in Exhibit P7. It appears to me that both counsel jumped the gun. A case must be fought, won or lost on the pleadings. The Respondent pleaded and testified to the fact that the documents in dispute in this case were retrieved from the police and handed over to the defendant (now appellant) to keep in trust for the family pending when they will be collectively deposited in the bank of the family’s choice. That surprisingly it was observed that some of the properties had been sold by the Appellant to innocent members of the public without the consent of the claimant who is the head of the family. The Respondent further pleaded and testified to the fact that the Appellant refused to return the title documents despite repeated demands. I refer to paragraphs 10, 11, 12, 13, 14, 15 and 24 amongst others of the statement of claim.
However, in his statement of defence, the Appellant did not reply to the averments that he sold the property without the consent of the Respondent as the family head. All that he averred to is that all the documents in his possession were given to him by all the family members of the late Rufus Olatunji Akingbasote and that a memorandum was prepared and signed by all the three Idi-Igi. See paragraph 9 of the statement of defence (page 102 of the record of appeal). And as can be seen in the evidence of his sole witness who shares the same mother with him, he did not also state that consent was given to the Appellant to sell the property he sold. He was emphatic on this issue when he stated under cross examination that:
“… I agree that the family did not agree that any property should be sold. If there will be a sale, it has to be a joint decision of the family. I agree that the title documents were to be deposited in WEMA BANK according to our agreement …” see page 169 of the record of appeal.
Having not pleaded the fact that he was given consent by the family to sell any of the family properties, the Appellant cannot be heard to rely on Exhibit P4 to contend that paragraph 2 thereof gave him consent to sell the property he sold. Like I did state earlier a party’s case must be fought on the pleadings. It is settled law that cases decided on pleadings are decided on the issues joined in the pleadings, the purpose being to avoid surprise at the trial. See: Adeosun V. Gov. of Ekiti State & Ors (2012) LPELR-7843 (SC), p. 23, paras F-G. See also Buhari & Anor V. Obasanjo & Ors (2005) LPELR-815 (SC), p. 145 paras E-F, RTEAN V. NURTW (1992) LPELR-3200 (SC), p 16 paras F-G.
Learned counsel to the Appellant faulted the trial Judge’s reliance on the evidence of his sole witness under cross examination. I make bold to state that even without the Appellant’s evidence aforestated, I cannot see how the trial Judge would have arrived at a different decision on the issue of the Appellant’s misconduct in the sale of the property without the consent of the Appellant as head of the family.
Therefore, the cases cited by the Appellant’s counsel to support his submission that the best evidence of the contents of a document is the production of the document itself are not relevant in that the facts contained in the documents (Exhibit P4) to support the Appellant’s contention that he sold the property with the consent of the family were not pleaded and given in evidence.
My conclusion on this issue is short and clear, and that is, that the Appellant sold the property without the consent of the Appellant and thus misconducted himself. Therefore, I resolve issue two in favour of the Respondent and against the Appellant.
Whether the trial Court was right to have assumed jurisdiction to hear and determined the Respondent’s claims before it? (Ground 3)
SUBMISSIONS OF COUNSEL
The argument of Appellant’s counsel on this issue revolves round the Respondent’s claims as contained in paragraph 25 (c) and (d), and the facts pertaining to those claims as pleaded in paragraphs 17, 18, 19, 21 and 22 of the statement of claim.
Counsel submits that the said paragraphs revealed that the claims of the Respondent commenced since 2008. He further submits that rents collected from 2008-2012 have become statute barred, and relies on Adejumo V. Olawaiye (2014) 12 NWLR (Pt. 1421) 252 at pp. 280-281, paras G-C.
He also relies on Section 4(1) of the Ondo State Limitation Law, Cap 83, Laws of Ondo State, 2006. Counsel submits that the instant action was filed on 9th August, 2018, a period of about 10 years when the cause of action arose. Counsel submits that the claims being statute barred has deprived the trial Court of the requisite jurisdiction to hear and determine the claim of the Respondent; and relies on the case of Sylva V. INEC (2015) 16 NWLR (Pt 1486) 576 at 630 paras A-C.
For the Respondent it is submitted that the trial Court was seised of jurisdiction to hear and determine the Respondent’s claims. Counsel submits that in determining whether an action is statute barred, it is important, fundamental and necessary to know when an action complained of became complete. Reliance is placed on the case of Adimora V. Ajufo (1988) 3 NWLR (Pt. 80) 17.
Counsel submits that in any action for recovery of debt, the cause of action accrues upon the demand for the payment of debt, and that if no demand is made a cause of action does not arise and no action can be commenced.
Counsel relies on the authority of Kolo V. First Bank of Nigeria Plc (2003) 3 NWLR (Pt. 806) 216.
Counsel notes that a demand letter dated 11th July, 2018 was served on the Appellant, and thus the cause of action accrued upon the service of the demand letter, as such the suit is not statute barred.
Further submitted by counsel is that from the pleadings, the Appellant was responsible for the collection of rents from the period of 2008- 2017. That this was also the case for the N20,000 yearly profit on the Cocoa plantation at No 1, Owena Road, Gberiwojo Idanre.
That the Appellant collected these rents without paying same into the WEMA BANK family account as agreed by all the family members.
Counsel submits that the default of the Appellant in paying the rents collected and the profits on the Cocoa Plantation were acts of a continuing wrong within the period of 2008-2017, and therefore Limitation Law cannot apply.
Counsel submits that the Appellant held the property in trust for members of the family, and as such cannot be heard to raise the statute of limitation, and relied on the case of Okafor V. B.D.U. Jos Branch (2017) NWLR (Pt. 1559) 426.
Further submits that the title documents of the properties of late Rufus Akingbasote were expressly handed over to the Appellant for safe keeping, thus creating an express trust. However, counsel submits, the Appellant fraudulently breached the trust by selling the family property without reverting to the Respondent, and failed to pay all sums collected by him from the family property into the family account. Counsel therefore submits that Section 4(1) of the Ondo State Limitation Law, 2006 does not apply to this case.
Let me first make this comment at the onset of the consideration of argument of counsel on this issue.
I feel grieved to state that in a matter tried and concluded on pleadings, both counsel did not seem to appreciate the role and purpose of pleadings. This was noticed while dealing with issue two, and noticing it again in issue three, I feel compelled to make this sad comment.
In the entirety of the Appellant’s statement of defence, the Appellant did not join issues with the Respondent on the claim of the Respondent as contained in paragraph 25(c) and (d) of the statement of claim.
On whether the defendant has a duty to plead and prove that an action instituted is statute barred, the apex Court held in the case of Chief E. W. J. Woherem JP V Joel Emereuwa & Ors (2004) LPELR-3500 (SC):
“…where at the end of settlement and exchange of pleadings or after the plaintiff has filed his statement of claim, the defendant is obliged at that stage to contest in limine by way of a preliminary objection that the plaintiff’s action is statute-barred and ought to be struck out. The position is different where issue is joined by the parties in their pleadings as to the date the cause of action in a suit arose. In that case, such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the Court. See Savannah Bank of Nigeria Ltd. v. Pan Atlantic (supra).”
Per IGUH, J.S.C. (P. 17, paras. A-C)
See also the following:-
Odubeko V. Fowler & Anor (1993) LPELR-2235 (SC), P 24, paras A-D, Chief of Army Staff & Anor V. Isah (2017) LPELR-41979 (CA), pp. 9-12, paras D-C, Ekweozor & Ors V. The Regd Trustees of Saviours Apostolic Church of Nigeria (2014) LPELR-23572 (CA), p. 65 para D.
It is crystal as clear that the Appellant did not plead and lead evidence to prove Statute of Limitation. It was not raised in the Appellant’s final written address at the lower Court. It did not therefore arise from the judgment of the lower Court. Even though the Appellant sought and obtained leave of Court to raise it as a ground of appeal, as a fresh issue, the argument proffered on it are of no moment so long as the Statute of Limitation was not pleaded and evidence led in proof thereof. This point is recondite, and being an issue of law I can raise and determine it suo motu. Therefore it puts an end to the Appellant’s counsel’s submission on Statute of Limitation.
Be that as it may, it suffices to state that the action of the Appellant in collecting rents yearly on the mentioned properties between 2008-2017 and refusing to pay same into the family account; and the collection of profits on the family’s Cocoa plantation during the same period and refusing to pay the said profits into the family account are acts of a continuing wrong. Therefore the action, filed in August, 2018 cannot be statute barred.
Therefore, I also resolve issue three in the Respondent’s favour and against the Appellant.
All three issues having been resolved against the Appellant and in favour of the Respondent, this appeal is totally devoid of merit. It is hereby dismissed. In consequence, the judgment of the High Court of Ondo State delivered on 01/08/2019 in Suit No: AK/179/2018 is hereby affirmed.
Costs assessed at N200,000.00 is hereby awarded to the Respondent against the Appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my brother JAMES GAMBO ABUNDAGA J.C.A.
I agree with his reasoning and conclusions.
I also dismiss the appeal.
Where a party asserts that the matter is jinxed by effluxion of time, it becomes imperative for that party to plead same and lead evidence in support of his assertion – CHIEF E.W.J. WOHEREM JP. V JOEL EMEREUWA & ORS (2004) LPELR-3500(SC).
I dismiss the appeal and the judgment of the High Court of Ondo State delivered on the 1st of August 2019 in Suit No. AK/179/2018 is hereby affirmed.
I abide by the consequential order made as to costs.
HAMMA AKAWU BARKA, J.C.A.: I had the singular opportunity of reading in draft the judgment just read.
I agree with the reasoning and the conclusion therein.
I also dismiss the unmeritorious appeal, while I abide on all orders made including that as to costs.
O. F. UMAR WITH O. P. ONIWIDE For Appellant(s)
T. T. FALEYE WITH MICHAEL OJIMBA For Respondent(s)