ONOH v. AKAEZE & ANOR
(2020)LCN/15433(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/AS/200/2011
RATIO
JUDGMENT OF COURT: POSITION OF THE LAW ON THE COURT DECIDING CASES ON TECHNICALITIES
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Court now is that cases should always be decided, wherever possible on the merit. Blunders must take place from time to time, and it is unjust to hold that because blunder has been committed, the party blundering is to incure the penalty of not having the dispute between him and his adversary determined upon the merits.
See also Ajakaiye Vs. Idehai (1994) 8 NWLR (pt 364) 504; Artra Ind. Ltd V. N.B.C.I (1997) 1 NWLR (pt 483) 574; Dakat Vs. Dashe (1997) 12 NWLR (pt 531) 46; Benson Vs. Nigerian Agip Co. Ltd (1982) 5 SC 1 all referred in K.S.P.W.B Vs Baba (2018) 9 NWLR 41. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
MR ALEXANDER ONOH (For Himself And On Behalf Of All The Members Of LATE MR. ISAAC NWAOKOH ONOH’S FAMILY OF UMUWAGWU QUARTERS, IBUSA) APPELANT(S)
And
1. MR. VICTOR AKAEZE 2. MR NDUBUISI NKEMAKONAM RESPONDENT(S)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Delta delivered on 10th March, 2010 where at the trial Court had dismissed the plaintiff’s case for lack of locus standi to sue and for lack of merit.
The Appellant, herein as the plaintiff at the trial Court had by leave of the trial Court granted on 11-05-2006 sued in a representative capacity for himself and on behalf of all members of the late Isaac Nwaokoh Onoh’s family of Umuwagwu Quarters, Ibusa.
The plaintiff had at the trial Court claimed as follows:
1) A declaration that the plaintiff is the person entitled to be granted a statutory right of occupancy over the piece and parcel of land lying and situate at Umuwagwu Quarters, Ibusa within the jurisdiction of this Court which piece and parcel of land shall be described in the statement of claim or described in the survey plan.
2) N2 million damages for trespass.
3) Perpetual injunction restraining the Defendants therein from trespassing or further trespassing on the said piece and parcel of land or doing any manner of work therein.
It was the case of the plaintiff that he was assimilated into the family of late Mr Isaac Nwaokoh Onoh, his mother having been born into the said family, he being a maternal grandson of late Isaac Nwaokoh Onoh had the authority of the late Isaac Nwaokoh Onoh to bring the action on behalf of himself and on behalf of that family.
It was the plaintiff’s case that his grandfather, the late Isaac Nwaokoh Onoh had agreed to sell the piece of land in dispute to one Catherine Nwanze for the sum of N800 but that only N200 was paid and leaving a balance of N600, till date. That no possession of the land was taken; that the agreement was terminated and plaintiff continued in possession until December 2005 when the Defendant broke into the land and started the construction of a wall fence – therein, destroyed plantain and banana crops which value the plaintiff put at N200,000 yearly. A total of 6 Exhibits were tendered and at the conclusion, there of the trial Judge found that the plaintiff had not proved his claim; it found to the contrary, that the Defendant had a valid title from the evidence of gleaned from a previous decision.
For clarity and comprehensiveness of the facts and circumstances of this case on appeal, I shall reproduce the statement of facts as articulated by the Appellant himself at pages 2-5 of his Appellant’s Brief of Argument for the avoidance of doubt. It runs thus:
STATEMENT OF FACTS
“……………………………………………………………..……..”
After the transmission of the record of Appeal out of time on 21-7-2011 and its regularization by a deeming order of this Court on 2-7-2012 the filing of the respective Briefs of the parties did not escape the inordinate delays and incompetence that trailed them, until the Appellant’s Brief Deemed filed on 24-10-2016 was adopted at the hearing as the extant Brief of Argument in this Appeal.
The Respondent also filed a Respondent’s Brief on 7-7-2017 which was deemed filed within time on 28-02-2019 and which was adopted at the hearing.
Appellant had filed Appellant’s Reply Brief on 12-2-2019 subsequent the deemed Respondent’s Brief of 28-2-2019.
The Appellant raised six (6) Issues for the determination of this appeal and upon his Amended Notice of Appeal filed on 4-10-2013 raising eight (8) Grounds of Appeal.
Appellant raised six (6) Issues for determination and which were adopted by the Respondent’s learned counsel.
ISSUE NO 1
Whether the learned trial Judge was right in considering the issue of locus standi when a Judge of concurrent or co-ordinate jurisdiction had already determined and/or considered the issue at the preliminary stage of the proceedings.
It was argued that the Appellant as plaintiff had earlier been granted leave to sue in a representative capacity by the order of 11-5-2006 upon his application of 15-2-2006 filed 16-2-2006. That Respondent had entered appearance and taken steps in the proceedings.
That a preliminary question was one to be settled first before going into other things and has to be decided first as the determination would be conclusive of the matter. That the issue of locus standi ought not to have been considered by the trial Court again as it had been decided already for to do so, as done was sitting on appeal over the decision made by Court of coordinate or concurrent jurisdiction.
That no Judge of the High Court has power to reverse or even review the decision of his learned brother of coordinate jurisdiction, regardless of whether such decision was right or wrong. That this was the function of the Court of Appeal.
Anigboro V. Sea Trucks(Nigeria) Ltd (1995) 6 NWLR (pt 399) 35 at 58; Okoye V. N. C & F. Co Ltd (1991) 6 NWLR (pt 199) 501 were referred to.
It was also argued that the learned trial judge of High Court No. 5 Holden at Asaba having so delivered a Ruling on locus standi and capacity of the Appellant as plaintiff to sue in representative capacity in the action, the same High Court sitting at Akwukwu – Igbo had become functus officio in respect of that issue and which said order can only be set aside on appeal. That the dismissal of the objection on locus standi and want of capacity had concluded the matter, the cases of Edokpolo Vs. Asemota (1994) 7 NWLR (pt 356) 314 at 328 paragraph D. Agbenyi V. Abo (1994) 7 NWLR (pt 359) 735 to contend that an order of dismissal of a case or an application made after full hearing of the case or application concludes the matter for ever, subject to appeal.
That the task having been performed by High Court No. 5, Asaba, his brother Judge at Akwukwu – Igbo was in error to have considered again the Issue of locus standi and capacity to sue in a representative capacity.
Onyemobi Vs. President, Onitsha Customary Court (1995) 3 NWLR (pt 381) 50 at 58-59 relied upon.
It was also argued that, it was also wrong of the Respondent as Defendant to have brought his objection to the locus stadi to sue in a representative capacity in his statement of Defence rather than by preliminary objection on motion.
Obilaso Anabaronye & Ors Vs. Nelson Nwakaihe (1997) 46 LRCN 185 at 194 was referred. That a preliminary objection was the best as it decides a matter or issue conclusively.
Nigerian-General Ins. Coy Ltd V. Bello (1994) 1 NWLR (Pt 319) 207 at 215; Aina V. Trustees of the Nigerian Railway Corporation Pension Fund (1970) 1 ALL NLR 281.
It was therefore, reiterated that considering the issue of the locus standi of the Appellant again by the High Court of Justice sitting at Akwukwu-Igbo after his learned brother sitting at Asaba had so determined to the contrary, had occasioned a miscarriage of justice against the Appellant.
That this issue be resolved in favour of the Appellant and the Appeal be allowed.
ISSUE 2
Whether on the state of the pleadings, the Appellant had the locus standi to institute the action in a representative capacity for himself and on behalf of all the members of the late Mr Isaac Nwaokoh Onoh’s family of Umuwagwu Quarters Ibusa, and where he had no such locus standi what type of order should the trial Court make? (Ground 2) of the Amended and Additional Grounds 2).
It was argued on this issue that Appellant had pleaded his entitlement to sue as such; had obtained leave to sue in representative capacity and no issues were joined by the parties on the Ibusa Native law and custom on assimilation of the Appellant into the said family. That the Ibusa Native Law and custom on assimilation was never pleaded by both parties; that the assimilation of the Appellant not based on the Ibusa Native law and custom, the appellant need not call further evidence to corroborate his testimony or oral evidence in order to prove the Ibusa Native law and custom which was never made an issue in this case.
The learned counsel also argued that even if evidence was led on Ibusa native law and custom, any such evidence not in line with the pleadings goes to no issue and should be expunged from the record.
It was, therefore, submitted that cases are tried on the parties pleadings and the Courts are not permitted to make a case for other parties. That the fate of their case are tied to what they have alleged in them. Emmanuel Jiaza V. Hassan Bamgbose & Anor (1999) 69 LRCN 1278 at 1291 paragraph 1 relied upon. Also relied on are Lawrence Elendu & 5 Ors Vs Felix Ekwoaba & 4 Ors (1998) 63 LRCN 4975 at 5000; Acme Builders Ltd V. Kaduna State Water Board & Anor (1999) 66 LRCN 218 at 249.
That Issues are “joined in the pleadings, and not on the evidence”. Tunde Bamgboye V. University of Ilorin & Anor (1999) LRCN 2146 per (Onu, JSC);
It was submitted upon a galore of legal authorities that evidence not supported by pleadings go to no issue and must be expunged. That the Appellant had satisfied the requirement of interest and a standing to sue and on the state of the law was a competent plaintiff to sue as he did. That the trial Court wrongly approached the pleadings and evidence led.
In the alternative, it was argued that even if the Appellant had no locus standi to institute the action the way he did, the learned trial judge was in error to have dismissed the plaintiff’s case instead of making an order striking out the case. Jacob Ovenseri & Anor Vs. Ojo Osagiede & Anor (1998) 61 LRCN 4584 at 4594 refers.
ISSUE 3
Whether on the state of the pleadings and evidence the trial Judge was right in holding that the Appellant (Plaintiff in the lower Court) failed to prove his title or a declaration for a statutory right of occupancy over the subject matter of this suit by cogent, satisfactory and conclusive evidence when the Respondents (Defendants in the lower Court) having traced their root of title to the Appellant’s family whose ownership had been established.
It was contended that no issues were joined on the traditional ownership of the land as being in the Appellant’s family. That they were the original owners. Paragraphs 7-14 of the statement of claim (pages 16-17 of the record) and the viva voca evidence of the Appellant as PW1 on pages 96-98 lines 9-13 of the record referred to. That the Respondents did not join issues with the Appellant on the traditional history of the land in dispute, either did they challenge or contradict the Appellants evidence on traditional evidence in anyway.
That the traditional history was not evaluated. That the Respondent had not disproved the Appellants claim and had not shown how he got a better title. It was also submitted that the document of purchase of the land held out by the Respondent was a sham as it was purportedly made in Bendel State in 1974 when the state had not been created, as Bendel was created in 1976. That the Respondent’s Exhibit ‘I’ was crucial but was glossed over.
That if the trial judge had properly evaluated the genuiness or otherwise of Exhibit ‘I’, he would not have attached any weight to it to warrant him to dismiss the Appellant’s case.
That a dispassionate consideration of the issues raised and canvassed before a Court must be undertaken, otherwise it will be difficult for a party whose case has not been so considered to accept that justice has been done to him. Chiabee Bayol Vs. Iorkhighir Ahemba (1999) 71 LRCN 2347 (SC)
That the Exhibit ‘I’ was made on 5-5-74 before the creation of Bendel State on 3rd February 1976 and that it did not describe the land. And its location and boundary and no nexus with the land in dispute shown by it. That the issue was canvassed but glossed over. Appellant’s counsel’s address at 156-158 of the record was referred to.
That the trial Court ought to have attached great weight to exhibit ‘A’ and ‘B’ had he properly evaluated the evidence. That a wrong approach was adopted by holding that no evidence was led as to the signatories of Exhibit ‘A’ and ‘B’.
That the trial Court had adopted a wrong approach to the evidence of the parties and therefore, this Court should allow the appeal;Bennet Karibo & 2 Ors Vs. Amos Grend (1992) 3 NWLR (pt 230) 426 at 441 and Effiong Ndem & 3 Ors Vs. Effiong Odiong Nkpinang & 4 Ors (2001) FWLR (pt 46) 917 at 930 refers.
ISSUE NO. 4
Whether the learned trial Judge was right in examining and evaluating the evidence of the grandmother of the Appellant (as plaintiff) in an earlier proceedings who did not give evidence before him.
It was submitted that it was wrong to have considered and based a decision on the testimony of a witness, the Appellant’s grandmother who was not called as a witness in the present suit but testified in an earlier proceedings at the Ibusa District Customary Court in Suit No. IDCC/7/78 in Exhibit ‘F’ (pages 199-234 of the Record). That the parties, issues and the subject matter in the said Exhibit ‘F’ are not the same with the parties, Issues, and subject matter in the present proceedings.
That the issue in the present proceedings that is on appeal now is whether the land in dispute belonging to late Isaac Onoh was fully paid for by Catherine Nwanze? Whereas in IDCC/7/88, it was not the issue.
That evidence given in a previous proceedings was only relevant for the purpose of discrediting the witness in a subsequent proceedings in cross-examination and for that purpose only; and therefore, the evidence in Exhibit ‘F’ was not relevant as the grandmother of Appellant did not give evidence in the present proceedings. Olawale Alakija & 2 Ors Vs. Alhaji Abdulai (1998) 59LRCN 3756 at 3779 also referred.
That miscarriage of justice had been occasioned. That it was also not shown that the Appellant or his grandmother was a privy to any of the parties in suit IDCC/7/88 (Exhibit ‘F’).
That for a plea of res judicata to succeed, it must be shown that
a) There existed same parties as in the previous case
b) Same issues
c) Same subject matter
That the reliance on the evidence of the Appellant’s grandmother in an unrelated proceedings had occasioned a miscarriage of justice.
ISSUE 5
Whether the learned trial judge rightly dismissed the Appellant’s claim for trespass and injunction when his unchallenged evidence showed that the family maintained continuous possession of the land in dispute because the Respondent’s vendor or predecessor-in-title failed to compete purchase price for the disputed land to the Appellant’s family.
It was submitted that there was unchallenged evidence of possession. That proof of ownership was prima facie proof of possession.
Badejo V. Sawe (1984) NSCC 481 at 482 per Aniagolu, JSC that “The Principles in Lows Vs Telford (1876) Appeal cases 414 at 426 which is accepted in our law has been that where is a dispute as to which of two persons are in possession the presumption is that the person having title to the land is in possession.Engr. Bayo Akinterinwa & Anor Vs. Cornelius Oladunjoye (2000) 6 NWLR (pt 629) 92 at 115; Daniel Bassil & Anor Vs. Chief Lasisi Ishola Fajebe & Anor (2001) FWLR (pt 51) 1914 at 1936 also referred to.
That the planting of plantain and banana – plants as shown Exhibits 1-6 were led in evidence.
That this Court should intervene by setting aside the decision dismissing the Appellant’s claim for trespass and injunction.
ISSUE 6
Whether the learned trial judge properly evaluated the evidence adduced by the parties in this case.
Arguing this Issue from the original Omnibus Ground of Appeal, it was submitted that there was abundant evidence in the nature of traditional ownership of the land in dispute in the family of the Appellant, the non-full payment of the purchase price for the land by Mrs. Catherine Nwanze and the continuous possession of same by the Appellant’s family was such that the “invasion” or interference by the respondent was actionable. That evidence on those acts enumerated above were not seriously challenged during the cross-examination and that the law is that the failure to cross-examine on a particular matter, is a tacit acceptance of the truth of the evidence of the witness: Gaji Vs. Paye (2003) 8 NWLR (pt 823) 583 at 605 SC and Oforlete V. State (2000) 12 NWLR (pt 681) 415 at 436 refers.
That no issues were joined on traditional title as pleaded yet the trial Court dwelt on same and disregarded the evidence led by the Appellant on same and his Exhibits A and B and chose to rely wrongly on the Exhibit ‘I’ which he submitted was a sham.
That the Court had a duty to evaluate and ascribe probative value to evidence led Egri V. Ukperi (1974) 1 1 NMLR 22; Onwugbufor vs. Okoye (1996) 1 SCNLR 1 at 33. That the Court of Appeal should perform that function where the trial Court has failed to do so. Section 16 of the Court of Appeal Act Cap 75, Laws of the Federation of Nigeria 1990, relied upon.
That this is moreso in a situation where the demeanor of a witness is not in issue.
Narumal and Sons Nig. Ltd V. Niger Benue Transport Co. Ltd (1989) 4 SCNJ 107 at 129; Okpiri Vs. Jonah (1961) ALL NLR 102 at 104; Maja V. Stocco (1968) ALL NLR 142 at 149-150 Ike V. Ugboaja (1993) 6 NWLR (pt 301) 539 at 555 and Onwugbufor V. Okoye supra at 33.
That judgment be entered for the Appellant as he had proved his case and not to order a retrial as done by the Supreme Court in Mogaji Vs. Odofin (1978) 4 SC 91.
On the whole, it was urged on us to allow the appeal and enter judgment for the Appellant because;
1. The learned trial judge took into consideration matters which were not in evidence before him and the failure to properly evaluate the evidence adduced by the parties before him.
2. The trial Court wrongly refused to accord full weight to the documentary and oral evidence adduced by the parties before him which established his claims.
In response, the Respondent submitted that there was no proof of the suggestion that the locus standi of the Appellant had been ruled upon by another judge in the same proceedings.
That the Respondent who had the burden of proof of that fact pursuant to Section 131 (2) of the Evidence Act had not produced the copy of the said Ruling or order and was by Section 167 (d) of the Evidence Act estopped as the evidence would be deemed to be unfavourable, hence its being withheld.
That the objection was struck out and not dismissed, as it was held to have been a demurrer which was prohibited and that it could be raised in the statement of Defence and then by motion subsequent raised and had not estopped its being raised again appropriately.
The learned counsel submitted that from the evidence led it appeared to the Court suspicious that the leave was fraudulently procured. This according to counsel was decipherable from the dating of the application for leave on 15-2-2006 and its grant being on 11-5-2006. That the contradictions in the Appellant’s case suggested fraud.
The learned counsel observed that the evidence of PW1 relating to one Sunday Onoh whom he had stated in his motion exparte ie Exhibit ‘E’ showed Sunday Onoh as one of the surviving sons of their Patriarch late Isaac Nwaokoh Onoh but also in cross examination said the said Sunday Onoh died before his father Isaac Onoh’s death. Yet, the father’s date of death is given as 21-4-1982 while Sunday Onoh’s is given as 24-4-1982. Counsel wondered how Sunday Onoh could have participated in a family meeting on 2006. That he had stated that the said Sunday was not indicated as a grandson. That the resolution to authorize a representative to sue had a signatory in the person of Mr. Sunday Onoh, who was supposedly dead as testified to by PW1. That Margaret Onoh was stated as late Isaac Onoh’s wife and signatory to the resolution as shown in the annexure to the motion exparte – Exhibit ‘E’ and yet Pw1 testified that she did not participate in the meeting of 22-2-2006 because she was in the hospital.
That it was obvious that the document of the purported meeting was a forged document made for the purpose of the case at the trial Court. That even if it was not forged the document having the thumb print of Margaret Onoh did not comply with the Illiterates Protection Law Section 3, there being no illiterates jurat, thereon. David Itauma Vs. Friday Jackson Akpe – Ime (2000) 3 NSCQR 69 at 86; Hint’s on land documentation and litigation in Nigeria by Layi Babatunde, Esq. refers.
That riddled with inconsistency and falsehood, the supposed consent was defective and the legal capacity to institute the action was in appropriately activated by a fraudulent leave obtained to sue. That the credibility/ veracity of the depositions for the consent was destroyed by the evidence of PW1 – led.
That the issue No. 1 (one) be resolved in favour of the respondent.
On issue 2, it was argued that Issues were joined on the pleadings as relating the plaintiff’s assimilation into the family of late Isaac Nwokoh Onoh.
Paragraph 1 of the Appellant’s statement of claim (page 15 of record) and the paragraph 2 of the Respondent’s joint statement of Defence contained on pages, 74 and 88 of the Record referred.
The learned counsel referred to the evidence of PW1 in that respect and that of DW1 also on the custom of assimilation or adoption which DW1 is not practiced where ones parents was still alive.
Counsel then contended that the trial Court was entitled to evaluate that evidence and come to a decision.
ON ISSUE 3,
It was argued that the title to the land had since 1974 been divested by late Isaac Nwaokoh Onoh from the family when he sold to late Mrs. Catherine Nwanze through her brother, Mr. Nwabueze Mgbadief. That 2nd Respondent having purchased from Mrs Josephine Dike, the first daughter of late Mrs. Catherine Nwanze who inherited from her mother. That the Exhibit ‘H’ contained on page 239 of record is the receipt by Mrs. Josephine Dike acknowledging the receipt of N900,000 paid to her by the 2nd Respondent as the purchase prize of the land in dispute, given to her as her share of the estate of her late mother.
The Exhibit ‘G’ being the Deed of Conveyance and Exhibit ‘J’ the sketch of the land. Referring toOnwuka Dioha Ors Vs. Nwama Ohia & Ors (2005) ALL FWLR (pt 291) 1713 @ 1721 it was argued that where traditional evidence is not contradicted or in conflict and is found to be cogent, it can support a claim for declaration.
That the traditional evidence of title given by the Appellant has, however been rendered irrelevant by the singular act of disposing the land by the original owner/vendor, the late Isaac Nwaokoh Onoh to late Mrs. Catherine Nwanze. That the Appellant did not tell the Court the detail transaction between the late Isaac Nwaokoh Onoh and Mrs Catherine Nwanze, yet told of the family history.
That the claim that the purchase price of N800 was agreed to between late Isaac Onoh and Catherine Nwanze but N200 only was paid, leaving a balance of N600, unpaid – leading to repudiation by them was false-a play to claim what did not belong to the Appellants.
That Exhibit ‘F’ the proceedings of Ibusa District Customary Court in suit No. IDCC/7/88 between Mr. Nwabueze Ngbadiefe and Agbambu Regina Instituted by Nwabueze on behalf of late Mrs. Catherine Nwanze and as Exhibit ‘F’ at the lower Courts shows the evidence of the said Nwabueze thus:
“I told him that I was buying for my sister Mrs. Catherine Nwanze. We then agreed on the price of N800 Eight hundred naira) I then paid for it. He showed me round the piece of land and since then I have been clearing the piece of land and looking after it. After three years of my buying of the piece of land, It was surveyed for me on behalf of Mrs. Catherine Nwanze my sister..”
Learned counsel referred us to the judgment of the District Court where the evidence of the wife of Isaac Onoh and Catherine Nwanze’s brother testified profusely and clearly in respect of the sale to the late Catherine Nwanze and the existence of the crops thereon mentioned and concluded that title had passed to the Respondents and the late Isaac Onoh’s family no longer had any title in the land. That they cannot eat their cake and have it.
That this issue be resolved in favour of the Respondents
ISSUE 5
It was submitted that the trial Court was not wrong in dismissing the Appellant’s claim for trespass and injunction as if the Appellant had consulted his grandmother Mrs. Ndika Onoh, he would have been properly educated on the real and true position of the land. That the Appellant had not proved his case by any of the known ways of proof of title long settled in Idundun V. Okumagba (1976) 10 SC 227 Otserga Jija V Tabi that L. Shande (2005) ALL FWLR (pt 288) 1097 @ 1110-1111.
On the Issue No. 6, it was submitted that, this was a case of resipsa loquitor; as the facts speak for themselves. That the evidence adduced in Suit No. IDDC/7/88 by Mrs Ndika Onoh, an independent and truthful witness, who is a wife and closest partner/confident to the vendor (late Isaac Nwaokoh Onoh) was well evaluated. YEBUMOT HOTEL LIMITED V OKAFOR (2005) ALL FWLR pt 255, 1099 CA relied upon.
That this issue be resolved against the Appellant and the appeal be dismissed with costs.
In reply, the Appellant’s learned counsel first dwelt on what he said was a new point and that was really on facts to show that the order for the filing of Additional Ground of Appeal was such that only 14 days and not 7 days as argued by the Respondent was ordered by the trial Court. I will not dwell further on it as it cannot be a Reply on law or new facts or issues that would be embarrassing to the Court.
Arguments was raised that an illiterate jurat is for the protection of an illiterate only and in any case illiteracy was a question of facts to be proved by evidence and that in any case there was nothing wrong with even a literate person appending his thump impression on a document. That it was signed in some places and thump printed in some places, does not make it void. SeeOTITOJU VS GOVERNOR OF ONDO STATE & 2 ORS (1994) 4 NWLR (pt 340) 518 at 529.
That the Illiterate Protection Law is for the benefit of illiterates and not for a stranger to the document to seek to nullify the document on that ground.
On the allegation of fraud raised in respect of the consent to prosecute, it was contended that “fraud” being a criminal offence must be provided beyond reasonable doubt after specific pleading. Koiki V. Magnusson (1999) 69 LRCN 1484 at 1525. Kareem V. Union Bank of Nigeria Ltd (1996) 38 LRCN 843; UGBO V ABURIME (1994) LRCN 174 Adelaja Vs. Alade (1999) 68 LRCN 784; ALHAJI SALAMI O. ADEROUNU & ANOR V OLOWU (2000) 75 LRCN 425 at 437.
That there was no specific pleading and proof of fraud as a crime by the Appellant.
That the submission on fraud should be discountenanced. Finally, it was contended in reply that the reliance on the evidence of Mrs. Ndika Onoh was wrong as the principle of estopel per record was in applicable.
That the issues were not the same. That Mrs. Onoh was not a party in either case but only testified in the former case. That the issue in this case was whether the full purchase prize was paid by Catherine Nweze, which was not the case in the former case.
That the Respondent was approbating and reprobating as he had said Appellant have no locus in suing and now saying he was privy to the suit.
On the whole, that the appeal be dismissed.
RESOLUTION OF THE APPEAL
I have perused the arguments of the respective parties in respect of Issue Number One and think that the general principle is that a Court is functus officio once it has decided a matter on its merit. And in that situation, the same Court cannot sit on appeal over its decision to vary it or set it aside, as that will be contrary to the doctrine of stare decisis or precedent. The appellate jurisdiction for review does not lie with the trial Court, in that instance any longer; the power lies on the Appellate Court.
Here, the High Court of Justice sitting at Asaba had granted leave for the Appellant/plaintiff to sue in a representative capacity. That same Court cannot review the order by departing there from as done by it at the Akwakwu-Igbo Division, when it held that the appellant had no locus standi to sue.
The complaint is genuine, therefore; the Issue one is resolved in favour of the Appellant.
ISSUE 2
The Appellant as plaintiff had pleaded his entitlement to sue in a representative capacity and the members of the said family being represented had raised no complaints or objection to it; indeed, their authority vide the memorandum of their meeting conveying their consent was annexed to the application and which had a judicial stamp of endorsement by the fact of leave granted by the Court.
There was no appeal against the grant of this leave to sue in a representative capacity. The decision or Ruling in that regard remains binding and extant until set aside.
The Appellant had asked by its Issue 2 what the appropriate order would have been in the event that the Court had held or holds that there was no locus standi.
In that instance, the answer is simple. And that is that, the Court would in that circumstance, dismiss the suit. In any event, the Court may in the alternative elect to strike out the suit for incompetence as the suit would not have been instituted by a person with the competence to so sue. The absence of a competent person (party) robs the Court of jurisdiction to entertain the suit as one of the conditions for the proper constitution of an action would have been absent; indeed, in that scenario, the conditions precedent for a person to sue would not have existed. See Madukolu V. Nkemdilim (1962) ALL NLR. However, having resolved that locus standi to sue existed in favour of the Appellant as adjudged in Issue one, the Issue Number two (2) has become academic and speculative. It should be disregarded and therefore, its resolution ought to be against the Appellant; it should be stated that, notwithstanding that the Appellant is right in arguing that where locus standi is found not to have been established, the Court should strike out the suit, the facts and evidence led in this matter at the commencement stage had clearly establish the “locus standi” of the Appellant. The appropriate order to make as between a striking out and the dismissal of the suit was a non-Issue; and did not arise.
This issue is resolved against the Appellant.
THE ISSUE 3
The Respondent, no doubt traced their root of title to the land traditionally held by the Appellants. Respondents rely on the extinguishment of the Appellant’s title by the fact of sale to the Respondent’s predecessor in title and by the Appellant’s family. The Exhibit ‘I’ being the conveyance of the land was expressed as made on 5-5-1974 but in Bendel State which was only created in 3rd February 1976. There may be doubt as to the document of the conveyance as relating to the land in 1974; but the identity of the land is not in dispute as between the parties in this appeal.
The Respondents have established how the said land devolved on them by purchase evidenced by receipts Exhibit ‘H’ from the daughter of Mrs. Catherine Nwanze for N900,000 paid by 2nd Respondent. Exhibit ‘G’ and J re-enforce the fact of purchase and identity of the land.
The Appellants did not dispute the transaction in respect of the land by their ancestor, the original owner of the land and vendor, with the respondent’s predecessor in title except to contend that the sales transaction was inchoate as it was allegedly aborted as the purchase price of N800.00 (Eight hundred naira only) was agreed to as the purchase price for the land, but that only N200 was paid, leaving a balance of N600 (six hundred naira) unpaid. That this led to the repudiation of the sale contract.
It is clear to me, that the Appellant did not tender any documentary evidence as did the respondents herein as evidence of the alleged agreed N800 purchase prize. There was also no documentary evidence led of the payment of only N200 (two hundred naira) as part payment, as alleged.
On the preponderance of evidence, therefore, the Respondent’s case was stronger. It is that, the plaintiff/Appellant had been shown to have had their predecessor’s i.e. title to the said land (i.e. the late Isaac Nwaokoh Onoh’s land) divested to the respondents as the alleged part payment of only N200 and out of N800 agreed purchase price was not proved.
Even then, assuming that N200 had been paid as part payment of the consideration, and possession having been shown to have been taken by the Respondent, can this act of part performance not be enforced in equity? Can it not rank in priority to any purported title subsequently created (which in any case as, I have earlier held, has not been established).
The Exhibit ‘F’ – the proceedings of the Ibusa Customary District Court in suit No. IDCC/7/88 between Nwabueze Ngbadiefe and Agbambu Regina instituted by Mr. Nwabueze on behalf of Mrs. Catherine Nwanze to whom she stood as privy in blood and as relating to the land in dispute and against Agbambu Regina who had claimed title to the said land is instructive. The wife of the late owner of the land and Catherine Nwanze’s brother (who had bought the said land on behalf of the said Catherine Nwanze) and a privy in blood and litigation had both testified in favour of the sale by the Appellant’s alleged vendor to the Respondent.
The passing or transfer of title in the said land by the late Isaac Onoh’s family to the Respondent’s Vendor and who were in possession until resale to the Respondents herein, is obvious.
A party in a civil case wins on the strength of his case as put up and not on the weakness of the opponent’s case. He succeeds on his own case, though he may rely on the weakness of the opponent’s case of strengthen his case.
Where, as herein, the Respondent’s evidence per Exhibit I, i.e. the conveyance bearing Bendel State even before the State’s creation was suspect, may cast doubt as to the veracity of that piece of evidence; not withstanding that weakness, there exist on the merit, the proof of the title obtained and the prior divesting of the plaintiff/appellant’s title thus making his claim erected upon no extant title to the land in dispute. The signatories in Exhibit A and B were uncertain.
The Appellant had argued that reliance on the evidence of the wife of late Isaac Onoh in suit IDDC/7/88 to show that the property (i.e. land) in dispute had been sold out earlier to Mrs. Catherine Nwanze was wrong, as the doctrine of estoppel was inapplicable. That view cannot be correct, as the subject land in the said suit and the present action is the same.
The issue in both cases (suits) is the same as relating whether a sale of the land had been made to Catherine Nwanze. The Plaintiff/Appellant did not deny the transaction in respect of the land, except to say that it was aborted, as only a part of the agreed purchase price of N800 (Eight Hundred Naira) was paid.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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That is N200 (Two Hundred Naira) leaving a balance of N600 (Six Hundred Naira). The Defendant/respondent had testified and proved the payment of the N800 (eight hundred) in full, by their receipt and corroborative evidence, even against interest of Mrs. Margaret Onoh, the wife of the owner of the property.
She was a privy to the plaintiff/Appellant herein in interest in respect of the suit-being the wife of the owner of the land and mother of the other heirs of Sunday Onoh.
The subject matter is the same land as in the previous suit at the District Court in Suit IDCC/7/78 as shown in Exhibit ‘F’, the issues are the same: being whether the land covered in the litigation or any portion thereof had been sold to Mrs. Catherine Nwanze before the suit leading to this appeal.
Title to the Defendants/Respondent through Mrs. Josephine Dike, the first daughter of Catherine Nwanze who acknowledged the payment of N900,000 to her by the 2nd Respondent is proved.
The heavy weather made of the Exhibit I made in 1974 was of no moment as every other piece of evidence oral, and documentary favoured the Respondent.
The Court will not enthrone technical justice over substantial justice.
InMakori Smelting Co. Ltd V. Access Bank (Nig.) Plc (2002) 7 NWLR (pt 766) 447 at 471 paragraph C-D; G the Supreme Court held thus:
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Court now is that cases should always be decided, wherever possible on the merit. Blunders must take place from time to time, and it is unjust to hold that because blunder has been committed, the party blundering is to incure the penalty of not having the dispute between him and his adversary determined upon the merits.
See also Ajakaiye Vs. Idehai (1994) 8 NWLR (pt 364) 504; Artra Ind. Ltd V. N.B.C.I (1997) 1 NWLR (pt 483) 574; Dakat Vs. Dashe (1997) 12 NWLR (pt 531) 46; Benson Vs. Nigerian Agip Co. Ltd (1982) 5 SC 1 all referred in K.S.P.W.B Vs Baba (2018) 9 NWLR 41.
It is also clear to me that, Mrs. Margaret Onoh, who had testified in favour of the Respondent’s title as conferred by her husband in the property in dispute was that of a party or privy to the suit. The Defendant/Respondent’s member, Mrs. Margaret Onoh was indeed a party in the said suit as she was one of the unnamed members of the Onoh family who had sued in a representative capacity as plaintiffs and against the Respondent now as Defendants.
In Ighedo V. PHCN Plc (2018) 9 NWLRR (pt 1623) 51, the apex Court stated at pages 81-82 paragraph H-D thus: “The Rule was that if the plaintiff sued or any of the Defendants was sued in representative character, it must be stated on the writ, and must also appear in the title or heading of the statement of claim. However, in such representative suits, both the named plaintiff and the unnamed parties that is those he represents are parties to the action. The only difference is that the named as it were, is in control of the suit (dominus litis) until the matter is disposed with at first instance….”
The Mrs. Margaret Onoh who was thus, a plaintiff by the above legal postulation of a representative action had effectively in the previous suit laid to rest the claim of title and denial of sale sought to be made by their representative in the suit.
Parties must be consistent in their case at every stage. The admission against interest as made, damnified and weakened their claim against the stronger assertion of the Defendant/Respondent herein. See Kelani vs Ajide (1985 SC 1). At the trial Court, the Plaintiff/Appellant had argued per his Brief of Argument as contained on the Issue 3 thereof (pages 160-161 of the record) that there were land purchase transactions between the late Mr. Isaac Nwaokoh Onuh and Mrs. Catherine Nwanze as far back as 1974 per Exhibit ‘B’ which was not in dispute and payment of purchase prize for the land is that transaction not fully paid for.
The contention against the document as being of doubtful validity as relating to a purchase carried out in Bendel State which was not in existence in 1974 and therefore suspicious is of no moment in view of the address of counsel to the plaintiff referred to in that Brief of Argument on pages 160-161 of the Record.
There was neither the proof of rescission of the contract shown nor any action for breach of contract or specific performance. On the preponderance of evidence, the scale tilted towards the Respondents’ case. InBello Vs Dofin, the 1982 (SC) Courts are enjoined to place the evidence of parties as led on the imaginary scale to consider where the weight tilts.
The Respondent’s learned counsel was absolutely correct when he submitted in his reply on points of law as contained at pages 165-173 of the Record of Appeal, that Issue estoppel had been established by fact of Exhibit ‘F’ in the trial Court; and that Section 151 of the Evidence Act on estopel was applicable. The raising of “facts in issue” which had been finally determined in the previous suit by a competent Court will not be allowed to be raised where the same parties, subject matter are involved. See Adedayo Vs. Babalola (1995) 7 SCNJ 306 at 319; Okukuje Vs. Akwido (2001) 2 NWLR pt 700, page 20 estopel would apply even where res judicata was found in applicable.
That the evidence of Mr. Onoh strengthened the case of the Respondent herein and gives further credence to the Respondent’s claim and shows that there was nothing upon which the agreement to further sell the said land could be founded as you cannot put something on nothing and expect it to stand; it will crumble. See Macfoy Vs UAC (1962) AC, 152 and CN Okpala & Sons Ltd Vs Nigeria Brew. Plc (2018) 9 NWLR (pt. 1623) page 27.
In the instant case on appeal, I am certain that the material and determinate issue is whether there was evidence led at the trial Court that the Appellant’s family traditional title to the land in dispute had been divested by a sale to the 1st Respondent’s predecessor in-title. The trial Court had a duty to consider the totality of the evidence of both sides and in so doing it would be able to see whether injustice or miscarriage of justice had been occasioned to any party.
The trial judge had considered the Exhibits ‘F’, ‘I’ and the evidence of the Respondent’s witnesses and found the evidence of the Defendant/ Respondent as preponderating in favour of the Respondent/Defendant.
In the circumstance, the decision of the trial Court was not perverse. There was no miscarriage of justice in the decision of the trial Court. In Joe Iga & Ors V. Ezekiel Amakiri & Ors (1976) II SC I at 11-13, the Supreme Court held thus: “If a man whatever his meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that was a true representation and that he later was intended to act upon it and he with such belief, does act on it that way to his damage, the first is estopped from denying the facts as represented”.
See alsoRawrafic far Eastern Ltd V. John Chief Avbeneke & Ors (1958) WRNLR 92.
On Issue 5, it is obvious from the evidence led and the resolution of Issues 1-4 that the Respondents were in defacto and legal possession of the land purchased from the original owners. The Appellants as plaintiffs had not proved title in any of the ways of proof of title, as none existed in the original owners any longer. Injunction was rightly dismissed at the trial Court; as the evidence of Mrs. Idika Onoh, the wife of the deceased original owner of the land, through whom all the parties claimed, had shown corroboratively and unchallengedly as an independent and unbiased witness in Exhibit ‘F’ in favour of the Respondent’s title by purchase from her husband, the late Mr. Isaac Onoh; the fate and claim to title to the land by the Appellant was further clogged and obliterated.
The evidence led by the plaintiff, now Appellant when put on the imaginary scale side by side with that of the Defendant/Respondent’s, the weight tilts towards the Defendant/Respondent’s case. There is no doubt that the parties claim title through a common original owner, whose title had been shown by Exhibit I to have been divested to the Defendant’s Respondent’s vendors, who purchased from the original owner earlier in time. The Defendant’s title was not a sham as argued by the Appellant’s counsel in his Issue 6 (six).
Any possession, even if it existed as claimed by the Appellants herein was an adverse possession and against the legal possession of the Respondents, which had been created by the operation of law by the fact of the purchase factually proved by evidence, both oral and documentary.
To raise the contention of non-cross-examination or serious non cross-examination or challenge to evidence of erstwhile or hitherto existing traditional title, is in my view, a resort to crass technicality in furtherance of injustice.
The case ofGaji Vs. Paye (2003) 8 NWLR (pt 823) 583 that “the failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness Oforlete Vs. State (2000) 415 at 436”.
Cited is inapplicable to the facts and circumstances of this matter on appeal, wherein evidence was plainly led by the Defendant. There was no obligation on the Defendant, where the weakness of the Appellant’s case was obvious as shown above. The Defendant’s case was satisfactorily proved and also strengthened by the Appellant’s weak evidence.
The Exhibit ‘B’ which is at page 187 of the Record is the document of the alleged part payment of N200 only, leaving a balance of N600 of the purchase price of N800 (which is the price common to both parties).
However, the buyer shown on the exhibit ‘B’ is shown as John Ngbacheje and an indication of R.H.I for Mrs. Nwanze. The said document relates to an undefined piece of land. One Margaret Onoh who has a R.H.T impression thereon as witness was not called or cross-examined on that document, assuming she was the same person that testified to the contrary in the Exhibit ‘F’ that has not been shown to have been appealed or set aside.
The exhibit ‘A’ also relied upon by the Appellant, establishes absolutely nothing in favour of the Plaintiff/Appellant as the purported land therein is not defined or identified in any way; and what is more, it is said to relate to a licence for one Okorji Obedoechine to stay on Isaac Onoh’s undefined land subject to good behavior. It was made on 5th July 1953 Exhibit B was made on 5th July 1974.
Clearly, the plaintiff/Appellant case at the trial Court could not have succeeded even on its strength, as those Exhibits convey nothing certain. The Arguments raised by Issue 6 have no anchor whatsoever, the said issue is also resolved against the Appellant.
Appellant’s Reply Brief is merely an academic exercise that had not in any way affected the justice of the case as shown by the evidence of the parties which preponderated in favour of the Defendant/Respondent herein. The Reply Brief and its arguments are of no utilitarian value as they did not derogate from the settled position of the disposal of the Plaintiff/Appellant’s a title in favour of the Respondents, already proved.
The learned Judge thereat had held in his judgment at pages 180-182 of the record as follows:
“The only issue is whether the land in dispute sold to Catherine Nwanze by late Isaac Onoh was fully paid up.
From the evidence of the plaintiff and the Defendants one main issue stands out to be examined i.e. the issue whether the said Catherine Nwanze paid on N200 for the land in dispute or whether she fully paid up the N800.
The Defendant in his evidence contended that the N800 purchase price of the land in dispute was fully paid up.
DW1 and DW2 led credence to this; the Judgment of Ibusa District Customary Court buttress this point.
The plaintiff’s contention is that only N200 was paid, so the contract was revoked by the plaintiff.
Aside from stating this, there is no direct evidence to buttress this assertion. No other member of the family testified to the fact of the sale or indeed any transaction between Catherine Nwanze and the late Isaac Onoh. I cannot attach any weight to exhibit ‘A’ and ‘B’. No other evidence has been held (sic) (led) in furtherance of Exhibit ‘A’ and ‘B’ as per the witness that witnessed the sale and decision of the family to revoke the contract. Plaintiff must prove his title by cogent, satisfactory and conclusive evidence. He has failed to do so in this case.
The plaintiff did not lead evidence as to the signatory in Exhibit ‘A’ and ‘B’ nor has he led any evidence on the acts of possession carried out by the plaintiff since 1994
The Defendant on the other hand had shown exhibit ‘F’ containing the judgment of the Ibusa District Customary Court where in the grandmother to the plaintiff gave evidence in support of the ownership of the land in dispute to Catherine Nwanze. While not sitting on appeal over IDCC/7/88. I hold that Exhibit ‘F’ in these proceedings is a document that the Court can look at.
I find that there is a sale of the disputed land to Catherine Nwanze. The Plaintiff has not proved its case through direct, positive evidence.
The Plaintiff claims N2m (two million naira) for trespass and injunction. Having found that the plaintiff has not established any legal right, such orders cannot be made in his favour (omitted). In the result, his claim ought to be dismissed. It is accordingly dismissed.”
I cannot agree more with His Lordship, Phil Obanor (Mrs.) J. she was right. I endorse the conclusion and order made dismissing the case at the trial Court as entered.
Consequently, this appeal has no merit and is also dismissed by me.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, M.A. Danjuma, JCA; in the instant appeal. I agree with the said judgment and abide by the orders made therein.
ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.: I have read the draft judgment of my learned brother MOHAMMED AMBI – USI DANJUMA, JCA and I agree with the reasoning and conclusions contained therein. I have nothing to add as the judgment has covered the field.
I too dismiss appeal and I agree with the orders made.
Appearances:
Fred Ennie Oputa, Esq. For Appellant(s)
P. U. Lotobi, Esq. For Respondent(s)
