PETER ILODIBE v. ILODIBE MOTORS LIMITED
(2017)LCN/9413(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of January, 2017
CA/E/63/2013
RATIO
EVIDENCE: BURDEN OF PROOF IN CIVIL MATTERS
The onus is on the appellant to show to this Court that, some substantial wrong or miscarriage of justice has been thereby occasioned? by the learned trial Judge in rendering this decision in favour of the respondent for this Court to interfere with the findings, verdict or damages arrived at by the Court in favour of the respondent. See Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2011. PER JOSEPH TINE TUR, J.C.A.
EVIDENCE: EFFECT OF ADMISSION OF A FACT ON PLEADINGS
What is admitted on the pleadings needs no further proof at the trial. See Andony vs. Ayi II & Ors. (2004) All FWLR (Pt.227) 444 at 482; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747. No one sets out to prove what has not been denied on the pleadings. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at p.102. PER JOSEPH TINE TUR, J.C.A.
LAND LAW: WHAT CONSTITUTES TRESPASS
An original entry may be rightful or lawful, but once the person abuses his position after entry on the property, as in this appeal, the original entry became that of a trespasser. See Ajibade vs. Theodora Pedro (1992) 6 SCNJ (Pt.1) 44 at 57.
Where a party is shown not to be the owner of the property in his possession, his acts of entry becomes that of a trespasser. See Ogbechie vs. Onochie (1988) 2 SCNJ 170; Fasoro vs. Beyioku (1988) 4 SCNJ 23 and Balogun vs. Dada (1988) 2 SCNJ 104. A trespasser cannot acquire the title of the true owner of the property in dispute. See Ojomu vs. Ajao (1983) 9 SC 22 at 30 and Onwujuba vs. Obienu (1991) 1 SCNJ 40. PER JOSEPH TINE TUR, J.C.A.
LAND LAW: INGREDIENTS NECESSARY IN AN ACTION FOR RECOVERY OF POSSESSION
In Clerk and Lindsell On Torts 15th Edition, paragraph 22-48 and 22-49 page 1128 to 1129 appears the following statement of law:
“Ejectment: In the action of ejectment, now called the action for the recovery of land, the plaintiff is out of possession and claims immediate possession of the land. To do this he must recover by the strength of his own title and not by the weakness of the defendants.” He must therefore prove the links in his own title. He may, for example, prove his title as a mortgagee and claim for possession if the mortgagor is in default. The defendant, on the other hand, need only prove that he is in possession and need not prove any title. In ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against anyone, and those who sought to turn the man in possession out must show a superior legal title to his. Proof that the plaintiff was in possession before the defendant, no matter for how short a time, is prima facie evidence of his having title, for such prior possession raises a presumption that he was seised in fee; and such presumption cannot be rebutted merely by showing that the plaintiff did not derive his possession from any person who had title. Whether or not it may be rebutted by showing that the title is in fact in a third person, in other words, whether jus tertii is a good defence to an action of ejectment, is doubtful. The cases of Doe d. Carter vs. Barnard, and Nagel vs. Shea, are authorities in favour of the view that jus tertii is a defence. The authority of Doe d. Carter vs. Barnard is accepted by some, but the decision is open to serious objection and has been doubted by Lord Mancnaghten in Perry vs. Clissold as difficult, if not impossible, to reconcile with Asher vs. Whitlock. In Asher vs. Whitlock a plaintiff with a better title than the defendant recovered possession although, as the land in question was an encroachment on manorial waste, neither party had a title against the lord of the manor. Though the third partys title was not directly in issue, the case is the leading authority on the nature of the plaintiffs title in ejectment. The question has been investigated afresh by the High Court of Australia in Allen vs. Roughley, where Dixon, C.J., and Fullagar, J., rejected the view of Sir. Williams Holdsworth that the plaintiffs title in ejectment depends on proof of an absolutely good title and that therefore jus tertii is pleadable. It is submitted that their Lordships are correct and that title in ejectment is satisfied by a relatively better right to possess. This being so, a prior possession is normally sufficient and it is irrelevant for the defendant to show that a third party has a better right to possession than the plaintiff. He can plead a better right to possess in himself, jus sui, but jus tertii is irrelevant to the plaintiffs claim which does not rely on any other right than his better right to possess than the defendant. Where the plaintiff, however, does not altogether rely on proof of possession but adduces documentary evidence of title the defendant cannot be precluded from attacking that evidence and to that extent jus tertii is relevant. For example, he may wish to show that a will under which the plaintiff claims is invalid, but for the reasons submitted above that does not mean that he can attack by a plea of jus tertii a claim founded on actual prior possession. PER JOSEPH TINE TUR, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
PETER ILODIBE Appellant(s)
AND
ILODIBE MOTORS LIMITED Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): I have tagged this determination of this appeal ?decision?. I could have headed it ?opinion?, for any determination of a Justice of the Court of Appeal or the Supreme Court is either a ?decision? or an ?opinion? by virtue of Sections 294(2)-(5) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The provisions are couched as follows:
?294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
?(4) For the purpose of delivering its decision under this Section, the
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Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.?
Section 318(1) of the Constitution reads as follows:
?318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires:
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?Decision? means in the relation to a Court, any determination of that Court
Nine grounds accompany the Notice of Appeal filed by the appellant, Peter Ilodibe against the decision of Honourable Justice Ike Ogu, J., of Anambra State High Court of Justice, Nnewi Judicial Division in a decision rendered against the appellant on the 20th December, 2012, in favour of the respondent who was the plaintiff in the lower Court. The respondent, a limited
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liability company had instituted the suit in the Court below by a writ of summons accompanied with a statement of claim filed on 1st September, 2010 setting forth the facts upon which the dispute is anchored as follows:
?1. The plaintiff is a limited liability company incorporated in Nigeria whose registered office is situate at Onitsha, Anambra State.
2. The defendant is a brother of full blood of the plaintiff?s Chairman/Chief Executive Officer and he resides at Onitsha, Anambra State.
3. The plaintiff was on or about the 27th day of July, 1993 allocated 2 lock up stalls known as 130 AA in the Main Market Nnewi by the Nnewi Market Board of Trustees vide Allocation paper Number NMBT/1593B on Builder Owner Occupier Basis. The said stall was later numbered Zone 6 No.328 for administrative purpose by the traders association, NASPA who organized the market into zones after traders moved in and commenced trading activities in the market.
4. The plaintiff was authorized in writing to pay allocation fee by the Nnewi Market Board of Trustees which was then responsible for allocation of trading facilities, control and management of
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the market to pay the specified fee of N14,000.000 for the allocation after clearance with the President, Nnewi Traders Association and the General Manager, Prompt and Quality Services Ltd. which was then the contractor/financier of the Nnewi Main Market.
5. The plaintiff after the allocation engaged a contractor to erect stalls on its behalf while late Francis Ilodibe one of the brothers of the plaintiff?s Chairman/Chief Executive Officer was the supervisor in charge of the works. In the course of the construction, the then contractor/financier Prompt and Quality Services Ltd. by a letter dated 25th October, 1995 to the plaintiff complained about the roof of the stall 130AA which it claimed was not in conformity with the approved specification. It was roofed by the plaintiff instead of decked as specified by the contractor/financier. The plaintiff and the contractor/financier looked into the matter and after due consideration reached a compromise.
6. The plaintiff since the allocation has been paying all stallage fees and levies payable in respect of the said double stall to the appropriate authorities and shall rely on all relevant receipts
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issued to it at the hearing.
7. After the construction of the said double stall, late Francis Ilodibe elder brother of the Chief Executive of the plaintiff on behalf let the double stall to tenant and continued to manage and superintend the management of the said double stall until his death. Late Francis Ilodibe duly remitted rents collected to the plaintiff.
8. After the death of Francis Ilodibe, the son directed the tenant who was occupying the said double stall to the plaintiff to pay the money to it. The tenant unfortunately went to the defendant and mistakenly paid the rent to him. The son of Francis Ilodibe has now turned against the Chief Executive of the plaintiff on account of family misunderstanding and crisis in Ekene Dili Chukwu family.
9. When the plaintiff demanded rent from the tenant claimed that he had paid the rent to the defendant and that he is not prepared to pay to the plaintiff again. The plaintiff then demanded the rent from the defendant but the defendant turned round and started claiming the double stall as his own.
10. The defendant since then has been demanding and collecting rent from the plaintiff?s
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tenant in possession of the stall.
11. The defendant has written letters to the plaintiff and its Chief Executive claiming the said double stall.
12. The defendant will not stop his acts of trespass and provocation unless restrained by this Honourable Court.?
The respondent sought the following reliefs against the appellant in paragraph 13 of the statement of claim:
?13. WHEREFORE the plaintiff claims against the defendant as follows:
(a) A declaration that the plaintiff is the builder owner occupier of double stall No.130AA in phase 2 Main Market, Nnewi also known as Zone 6 No.328 allocated to it by the then Nnewi Market Board of Trustees.
(b) Injunction restraining the defendant, his servants, workers, agents and privies from committing further acts of trespass on the said stall.
(c) N1 Million being general damages for trespass.?
The appellant denied liability in a statement of defence filed on 8th October, 2010 as follows:
?1. That defendant hereby admits paragraphs 1 and 2 of the statement of claim of the plaintiff.
2. The defendant denies awareness of the facts averred by the
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plaintiff in paragraph 3 of the statement of claim as it pertains to ownership of any shop known as 130AA in the Nnewi Main Market nor any other shop of the plaintiff therein and the plaintiff is put to the strictest proof of the facts so alleged.
3. The defendant denies the facts averred by the plaintiff in paragraph and 4 and 5 of the statement of claim and in addition state that there was not any authorization on the plaintiff to build any shop at Nnewi Main Market as he alleged and there was no clearance nor authorization on the plaintiff to build any shop as he alleged.
4. In addition to the foregoing, the defendant state that there was no valid documentation of the source of ownership by the plaintiff to the alleged stall No.130 AA at Nnewi Main Market as such shops do not physically exist, and therefore the alleged communication relating to roofing same or settlement of any dispute are all farce concocted for the purposes of this case.
5. The defendant denies the averment in paragraph 6 of the statement of claim purporting that plaintiff had been paying stallage fees and levies in respect of the non-existing shops alleged by the
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plaintiff and all documents relied on by the plaintiff in prove of the above facts are all concocted for the purposes of this case.
6. The defendant denies all the averments in paragraph 7 of the statement of claim and in contradiction aver that there was no time that late Francis Ilodibe who is also elder brother of the defendant managed such double stall on behalf of the plaintiff until his death and the said late Francis Ilodibe never remitted any rents collected from the said shops to the plaintiff, nor to his brother the Managing Director of the Plaintiff as the plaintiff do not own any double shop at Nnewi Main Market as alleged.
7. There is no truth in paragraph 7 of statement of claim and there was no time any son of late Francis nor any member of Ilodibe family asked any tenant to pay any rent to the plaintiff or at all. There was no time any such tenant who does not exist paid any rent to the defendant as the defendant has no transaction whatsoever relating to the alleged double stall of the plaintiff.
8. In addition to the foregoing facts, the defendant state that it is as wooden lie that the son of Francis Ilodibe turned against
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the Managing Director of the Plaintiff on account of Ekene Dili Chukwu family misunderstanding.
9. The actual truth is that Chief Dr. A.E. Ilodibe, the founder and Managing Director of Ekene Dili Chukwu Nig. Ltd. and who was the elder brother of the defendant, fall sick which eventually resulted in his death, the Managing Director of the plaintiff, started to display his natural acts of greed in trying to divert some of the properties of his late brother to himself and after the death of Dr. A.E. Ilodibe, the plaintiff?s Managing Director started to instigate trouble and enmity in his late brother?s house with the sole intention of diverting and owning the said properties of his late brother.
10. This wickedness and greed of the Managing Director of the plaintiff is well known in the village and members of Ilodibe family including the defendant and the son of the said Managing Director of the plaintiff have called the said Managing Director to order and distanced themselves from such acts of wickedness against late Dr. A.E. Ilodibe family but the said Managing Director of plaintiff who has been acting through the plaintiff could not
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relent. The said Managing Director, in connivance with the plaintiff are trouble makers and professional litigants.
11. The defendant hereby state that this action brought against him by the Managing Director of the plaintiff subtly acting through any by the plaintiff is highly vexatious, harassment, intimidation and speculative with few to cause financial and psychological breakdown on the defendant.
12. The defendant states that he never owned nor occupied directly or otherwise of the said double shop known as 130AA in Phase II, Main Market, Nnewi and there was no time the defendant had let in any tenant thereto nor collected any rent thereto.
13. The defendant is an Employee and a Director in Ekene Dili Chukwu (Nig.) Ltd. and in carry out of his duties had only dealt with and collected rents from tenants occupying the stalls of the said company of the defendant which shops are lockup stalls Nos. M6, E, F, G, and H, up and down in Phase 4 at Nnewi Main Market, Nnewi and there is no nexus between the double shop claimed by the plaintiff and the said shops of defendant?s company in Phase 4. The documents of title evidencing the ownership
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of the said shop stalls Nos. M6, E, F, G and H in Phase 4 by defendant?s company are hereby pleaded and the defendant shall rely on the C.T.C. of the said documents as were tendered in this Court in suit No.HN/98/2005.
14. This suit is abuse of Court process as it is repetition of the facts and pleadings pending before this Court in suit No.HN/98/2005 and which has not been duly discontinued before the same action was reinstituted in this case in the same facts, parties, pleadings and remedies sought resulting in two similar cases pending in this Court, between parties and relating to same facts and pleading. The defendant hereby pleads the C.T.C. of the processes of Court in the said suit No.HN/98/2005 and shall rely on same during hearing of this case, including the ?Ruling of Court of 15th January, 2007? and Notice of discontinuance in HN/98/2005 filed the same date that this action is filed in Court. It was the failure of the plaintiff to obey the Order of Court in the said Ruling that drove him to purportedly discontinue the said action and to institute this case instead.
15. There was no time either the plaintiff, the
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Managing Director of the plaintiff nor any other agent or privy of the plaintiff discussed anything relating to rent of the said shops No.130AA in Phase 2 Main Market, Nnewi or any Zone 6 No.328 with the Defendant nor did the plaintiff ever demand any rent from the defendant any way.
16. The defendant has never collected nor demanded for any rent relating to the said shops from any tenant nor any body at all as claimed in paragraphs 9 and 10 of statement of claim.
17. The defendant denies paragraphs 11 and 12 of the said statement of claim and in rebuttal state that there was no such communication in any form between the defendant and the plaintiff.?
The appellant prayed in paragraph 18 of the statement of defence as follows:
?18. The defendant therefore denies paragraph 13 of the said statement of claim and pray this Honourable Court to dismiss this case of the plaintiff with heavy and punitive cost against the plaintiff, as the case is highly provocative, speculative, gold-digging and maliciously brought against the defendant with a view to unjustly discomfort, harass and intimidate the defendant for the fact that the
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defendant confronted the Managing Director of the plaintiff for instigating unwarranted dispute of divide and Rule in Ekene Dili Chukwu family.?
This prompted the respondent company to file a reply to the statement of defence on 9th November, 2011. Parties relied on oral and documentary exhibits and the written addresses of their respective learned Counsel. The learned trial Judge rendered his decision in favour of the respondent company on 20th December, 2012 holding at page 181 lines 5 to page 182 lines 1-26 of the printed record as follows:
?Clearly the defendant as DW1 fairly contradicted himself in his evidence before the Court. I watched the demeanour of the witness while testifying in the witness box. I do not think that the witness cut a good figure in the witness box. In one breath the witness said that stall No.130AA also known as Zone 6, No.328 does not exist. In another breath the stall exists and belongs to Ekene Dili Chukwu (Nig.) Ltd. Again, the witness testified that Young Obiaga is the person occupying the stall in dispute and suddenly he testified that the tenant occupying the stall in dispute is James Okafor. As if all
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these are not enough, in one breath he testified that Chief Augustine Ilodibe was collecting rent from the shop in dispute and after his death his children started collecting the rent. On being further cross-examined, he stated that Chief Augustine Ilodibe was not collecting rent personally and admitted issuing receipt to the tenant occupying the stall in dispute.
The evidence of DW1 under cross-examination in all material respects has painted a picture of a man who is economical as to the truth of material or crucial facts. A witness who has the penchant for telling lies should not be accorded any honour of credibility. No witness is entitled to honour of credibility when he has two contradictory evidence on a material issue given on oath by him on record. Such witness does not deserve to be truthful witness. I find no difficulty in holding that the DW1 is not a truthful witness. I do not believe the DW1. I accept the evidence of PW1 and prefer it to any other evidence to the contrary.
It has to be borne in mind that a claim of trespass to the double stall is rooted in exclusive possession. The onus on the plaintiff is to prove by credible evidence
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that she has exclusive possession or a right to such possession of the double stall in dispute. In the instant case, I have found as a fact that the plaintiff has established her ownership of the double stall in dispute which was given out to a tenant. The plaintiff was rented out the double stall is clearly in ?de jure? possession of the double stall even though she is not in physical occupation. See Anyabunsi vs. Ugwunze (1995) 6 NWLR (Pt.401) 255.
It is therefore my finding that the defendant has been demanding and collecting rent from the plaintiff?s tenant in lawful occupation of the double stall No.130AA also known as Zone 6 No.328 Main Market, Nnewi belonging to the plaintiff. It follows that the defendant trespassed on the said double stall of the plaintiff when he demanded and collected rent from the tenant occupying it and even proceeded to issue him receipt. The implication is that this issue must be resolved in favour of the plaintiff and against the defendant.
Since I have resolved all the issues for determination in favour of the plaintiff, it follows that her claim succeeds. Accordingly, I make the following
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orders:-
1. I declare that the plaintiff is the builder owner occupier of the double stall No.130AA in Phase 2 Main Market, Nnewi also known as Zone 6 No.328 allocated to it by the then Nnewi Market Board of Trustees.
2. Injunction is hereby issued restraining the defendant by his servants, workers, agents, and privies from committing further acts of trespass on the said double stall.
3. N200,000.00 (Two Hundred Thousand Naira) general damages for trespass are hereby awarded against the defendant and in favour of the plaintiff.
4. The defendant shall pay costs to the plaintiff assessed and fixed at the sum of N20,000.00 (Twenty Thousand Naira).?
The appellant?s brief was filed on 27th February, 2013. The respondent filed brief on 6th August, 2013 which was deemed proper on 15th April, 2016. All the briefs were adopted when the appeal came up for hearing on 13th October, 2016. The facts in dispute are set out in the appellant?s brief at page 2 paragraph 2.01 to 2.05 to wit:
?The respondent, a limited liability company, claimed to have been allocated ?2 lock up stalls? known as 130AA at Main
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Market, Nnewi. It was later renumbered Zone 6 No.328. After the construction of the 2 lock up stalls which the respondent, alternatively, called ?double stall?, one Francis Ilodibe let the stall to a tenant. According to the respondent, Francis Ilodibe did so as an agent of the respondent. He continued to manage and superintend the management of the said double shop ?until his death?. Thereafter, Late Francis? Son directed the tenant to pay rent to the respondent. The tenant unfortunately went to the appellant and mistakenly paid rent to him.
The tenant persevered in this ?mistake? refusing to pay rent to no other than the appellant. The respondent then demanded the rent from the appellant who ?turned round and started claiming the double stall as his own?, in spite of demands in writing by the respondent. The statement of defence is a total denial of material facts averred by the respondent in the statement of claim, especially with respect to collection of rents, written demands, etc. The respondent filed a reply, regardless.
The appellant filed a motion to have the suit dismissed for
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constituting abuse of Court process. The learned trial Judge reserved ruling on the point in his final judgment.?
The appellant distilled the following three issues for determination:
?1. Whether the learned trial Judge rightly held that the shop in dispute did not belong to Ekene Dili Chukwu (Nig.) Ltd.? (Grounds 3 and 4).
2. Whether Suit Not. HN/83/2010 is an abuse of Court process and incompetent having been instituted in violation of a subsisting Court ruling in, and the pendency of, Suit No.HN/98/2005?
3. Whether the respondent proved it?s case on a balance of probabilities? (Grounds 6, 7, 8 and 9).?
The respondent set out their own facts in her brief at paragraph 4.02-4.06 as follows:
?The respondent adopts paragraph 2.01 and 2.02 of the appellant?s brief of argument and further adds that the said two stalls or double stall was allocated to the respondent by the Nnewi Market Board of Trustees vide allocation paper Number NMBT/1593B on Builder Owner Occupier basis. The renumbering of the stalls was by the traders association ? NASPA who organized the market into zones after traders
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moved in and commenced trading activities in the market.
The respondent paid the allocation fee and thereafter engaged a contractor to construct the stalls. Francis Ilodibe one of the brothers of the Chairman/Chief Executive Officer supervised the work. While the construction was going on, the then contractor/financier of the market ? Messrs Prompt and Quality Service Ltd. by a letter to the respondent complained about the roof of the double stall which it complained was not in conformity with the approved specification. It was roofed by the respondent instead of decked as specified by the contractor/financier. The matter was settled.
The respondent since the allocation was paying stallage fees and levies payable in respect of the double stall to the appropriate authorities. The allocation paper, letter from the contractor/financier and stallage fee and levies receipts were entered at the hearing and admitted and marked Exhibits ?A? to ?F? respectively.
The late Francis Ilodibe on behalf of the respondent let the stall to tenant and until his death was remitting the rent so collected to the respondent. After the
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death of Francis Ilodibe the respondent collected rent from the tenant occupying the said double stall ? James Okafor. The appellant however denied collecting rent from the said double stall known as 130AA. He claimed that he was collecting rent from tenants occupying stalls known as M6, E, F, G and H in Phase 4.
The appellant accused the Managing Director of the plaintiff of taking advantage of the ill health and eventual death of Chief A.E. Ilodibe the Chairman of Ekene Dili Chukwu Nig. Ltd. to covet the company?s property. The appellant contended that the suit is an abuse of the process of Court as it is a repetition of the facts and pleadings in Suit No.HN/98/2005 which according to the appellant was still pending in Court. The appellant however averred that on the same date and time, the present suit was filed, the respondent had filed a notice of discontinuance of the earlier suit. He claimed the respondent filed the instant suit as a result of its failure to comply with the ruling of the lower Court delivered on 15th January, 2007 in Suit No.HN/98/2005.?
The respondent formulated the following issues for determination:<br< p=””
</br<
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(i) Whether the lower Court was right in his finding that the double shop in dispute does not belong to Ekene Dili Chukwu (Nig.) Ltd.?
(ii) Whether the suit on the facts and circumstances of the case constituted abuse of the process of Court?
(iii) Whether the respondent proved her case as required by law
From the two set of facts set out in the pleadings it was within the province of the learned trial Judge to determine from the oral and documentary exhibits the builder and owner of stall No.130AA in phase 2 Main Market, Nnewi also known as Zone 6 No.328, and to whom the land had been allocated by the then Nnewi Market Board of Trustees and to grant relief in terms of who proves or disproves the claim. This would be in accordance with the evidence adduced at the trial Court. Paragraph 4 of the respondent?s statement of claim traces root of title to the land upon which the stall was erected to Nnewi Market Board of Trustees. The appellant pleaded in paragraph 6 of the statement of defence that, the plaintiff do not own any double shop at Nnewi Market as alleged? without tracing the origin of the land
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upon which the stall in dispute is erected. It was for the learned trial Judge to make the best use of the oral and documentary evidence adduced in the Court below to determine the controversy. See Fashanu vs. Adekoya (1974) 9 NSCC 327 at 331; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253. In Oscar Reynard vs. Williams Allan (1934) 2 WACA 52, the West African Court of Appeal held at page 53 as follows:
?And when as in this case the decision rests not only on the comparative truthfulness of the statements made by witnesses, but on its probability, and on the correctness of the conclusions drawn from their evidence by the learned trial Judge, and above all on the construction put by him on what he describes in his judgment as ?a mass of documentary evidence? there is an ample field, apart from that of the credibility of witnesses, in which this Court can exercise an unfettered judgment in coming to the conclusion whether the decision was right or wrong, and if on surveying this field it in fact appears that the probabilities are very strong on the side of the plaintiff, and that the documentary evidence also is overwhelming in his
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favour, and if in addition the difficulties raised by the learned Judge against accepting plaintiff?s story are capable of a reasonable solution, as they seem to me to be, it will, I take it, be the duty of this Court to set aside the judgment of the trial Judge and enter judgment for the plaintiff.?
See also Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473.
It is permissible to merge issues that overlap and consider them together. See Anie vs. Chief Uzorka (1993) 8 NWLR (Pt.309) 1 at 16. I have examined the pleadings of the respondent and that of the appellant. The issue of the pendency of another suit over the same subject-matter was pleaded in paragraph 14 of the statement of defence but there is no evidence in whose favour the suit was determined to finality. In any case, the learned trial Judge held at page 161 lines 27 to page 163 lines 1-21 of the printed record as follows:
?It is not in dispute that before filing this suit, the plaintiff had instituted Suit No.HN/98/2005. It is also not being disputed that the parties, subject matter and issues in the earlier suit and this present suit are
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the same. To my mind, the issue whether a notice of discontinuance was filed in the earlier suit is not in contention in this suit. I say so because it was the defendant who for the first time pleaded and placed reliance on the said notice of discontinuance at paragraph 14 of his statement of defence. It was thereafter that the plaintiff pleaded in paragraph 7 of the reply to the statement of defence that the previous suit was duly discontinued before commencing this suit. And added that the defendant had not filed his statement of defence at the time of filing the notice of discontinuance and so no leave of Court was required in order to discontinue the suit.
This was the stage of the pleadings when the suit proceeded to trial. There is no doubt that the burden is on the plaintiff to prove that the previous suit was duly discontinued. The plaintiff is not expected at the trial to prove that the notice of discontinuance was filed because by the state of the pleadings, it is no longer an issue between the parties. Notwithstanding this position of the law, the defendant tendered a certified true copy of the notice of discontinuance in the bundle of
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documents which were admitted as Exhibit ?G?. I am now expected to consider whether the previous suit was duly discontinued before filing this suit. In arguing their cases, the learned Counsel for the parties relied on Order 23 Rule 1(1), (2) and (3) of the High Court (Civil Procedure) Rules, 2006. The rule provides as follows:
?1(1) The plaintiff may at any time before receipt of the defence by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim. He shall thereupon pay such defendant?s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2) A discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent claim.
(3) Where a defence has been filed, the plaintiff may with leave of a Judge discontinue the proceedings or any part thereof on such terms and conditions as the Judge may order. The Court hearing an application for leave may refuse the application whereupon if the party refuses or fails to proceed, the Court shall dismiss the
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action or the claim and award costs to the deserving party.?
The learned Counsel for the defendant has contended that for the suit to be properly discontinued, the parties ought to go back to the Court for the suit to be formally struck out and the plaintiff made to pay such defendant?s costs of the action. By the parties? showing, Sub-rule 3 is not applicable in that the defendant has not filed his defence at the time the notice of discontinuance was filed. Since the defendant has not filed his defence at the time the notice of discontinuance was filed, it follows that the plaintiff did not need the leave of Court to discontinuance his claim. The suit automatically abates the moment the notice of discontinuance was filed. It is the notice of discontinuance that terminates the suit and not the act of the Court. See Emeghara vs. Health Management Board, Imo State (1987) 2 NWLR (Pt.56) 330; Nwachukwu & Ors. vs. Nze & Ors. (1955) 15 WACA 36; M.V. Scheep vs. M.V.S. Araz (2001) 15 NWLR (Pt.691) 663.
To my mind, the contention of the learned Counsel for the defendant is not provided in the rules of this Court. The parties going
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back to the Court for the Court to strike out the suit is a formality and it is not that act that terminates the suit. If that is the intention of the law makers, they would have couched Sub-rule 1 in terms of Sub-rule 3 that is to say ?on such terms and conditions as the Judge may order?. It is not my function to import into the rules what is not provided in it by the makers of the law by way of interpretation.?
How would a resolution of this issue determine the crux of the dispute, namely, ownership of the stall now the subject matter in dispute?
In the determination of this appeal I have been guided by what Lord UpJohn said in Ijale vs. B.A. Shonibare, Privy Counsel Judgments (1841-1973) by Olisa Chukura, SAN, 1980 Edition, page 947 at 948 to wit:
?There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial
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Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES.?
I shall also refer to the Supreme Court authority of Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63 where Ejinwumi, JSC held at pages 79-80 to wit:
?Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several
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of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.?
This is the purport of Order 18 Rule 3-4 of the Court of Appeal Rules, 2011 which provides as follows:
?1. This Order shall apply to all appeals coming from any Court or Tribunal from which an appeal lies to this Court.
2. The appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in appeal.
3(1) The
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brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and. wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.
(5) Except to such extent as may be necessary to the development of the
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argument, briefs need not set out or summaries judgments of the lower Court, not set out statutory provisions, nor contain an account of the proceedings below or of the facts of the case.
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.?
The parties should assume I have read the briefs and examined the documentary exhibits. The orders the Court of Appeal may make when hearing an appeal are circumscribed by the provisions of Order 4 Rule 9(1)-(5) of the Court of Appeal Rules, 2011 which reads as follows:
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such orders as could be made in pursuance of an application for a new
31
trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Paragraph (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
(b) Reduce or increase the sum awarded by the Court below by
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such amount as appears in the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.
But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.
(5) A new trial shall not be ordered by reason of the ruling of any judge of the Court below that a document is sufficiently stamped or does not require to be stamped.?
The onus is on the appellant to show to this Court that, some substantial wrong or miscarriage of justice has been thereby occasioned? by the learned trial Judge in rendering this decision in favour of the respondent for this Court to interfere with the findings, verdict or damages arrived at by the Court in favour of the respondent. See Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2011.
The respondent traced title to the double stalls to Nnewi Market Board Trustees. The appellant made the following admission through paragraphs 12-13 of the defence to wit:
?12. The defendant states that he never owned nor occupied directly or otherwise of the said double shop known
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as 130AA in Phase II, Main Market, Nnewi and there was no time the defendant had let in any tenant thereto nor collected any rent thereto.
13. The defendant is an Employee and a Director in Ekene Dili Chukwu (Nig.) Ltd. and in carry out of his duties had only dealt with and collected rents from tenants occupying the stalls of the said company of the defendant which shops are lockup stalls Nos. M6, E, F, G, and H, up and down in Phase 4 at Nnewi Main Market, Nnewi and there is no nexus between the double shop claimed by the plaintiff and the said shops of defendant?s company in Phase 4. The documents of title evidencing the ownership of the said shop stalls Nos. M6, E, F, G and H in Phase 4 by defendant?s company are hereby pleaded and the defendant shall rely on the C.T.C. of the said documents as were tendered in this Court in suit No. HN/98/2005.?
What is admitted on the pleadings needs no further proof at the trial. See Andony vs. Ayi II & Ors. (2004) All FWLR (Pt.227) 444 at 482; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747. No one sets out to prove what has not been denied on the pleadings. See Olale vs. Ekwelendu
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(1989) 7 SCNJ (Pt.2) 62 at p.102. The appellant admitted on the pleadings to be an employee and a Director in Ekene Dili Chukwu (Nig.) Ltd. without showing his nexus with the respondent. The learned trial Judge, after assessing the oral and documentary exhibits however found in favour of the respondent. The respondent proved his title in order to oust the appellant from the property in dispute. An original entry may be rightful or lawful, but once the person abuses his position after entry on the property, as in this appeal, the original entry became that of a trespasser. See Ajibade vs. Theodora Pedro (1992) 6 SCNJ (Pt.1) 44 at 57.
Where a party is shown not to be the owner of the property in his possession, his acts of entry becomes that of a trespasser. See Ogbechie vs. Onochie (1988) 2 SCNJ 170; Fasoro vs. Beyioku (1988) 4 SCNJ 23 and Balogun vs. Dada (1988) 2 SCNJ 104. A trespasser cannot acquire the title of the true owner of the property in dispute. See Ojomu vs. Ajao (1983) 9 SC 22 at 30 and Onwujuba vs. Obienu (1991) 1 SCNJ 40.
The appellant cannot plead jus tertii, namely, that the stalls in dispute belong to Ekene Dili Chukwu (Nig.) Ltd.
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without joining the party through whom he claims. The rights of the parties before the Court is what is to be determined. See Arase vs. Arase (1981) 5 SC 33 at 35. In Anukanti vs. Ekwonyeoso (1978) 1 LRN 346, Idigbe, JSC held at pages 351 to 352 as follows:
?In the instant case, the respondent who admittedly is in possession of the land in dispute while denying the appellant?s assertion that he (i.e the respondent) is on the land by permission of the appellant?s ancestors maintains that he is in possession by authority of Ajuwanta who, although not a party to these proceedings, duly gave evidence in support of the respondent?s case. While on the other hand Patrick Okoroma a descendant of Ukegbu, who, according to the respondent, was a co-pledge of the land in dispute from Ajuwana testified in support of the appellant?s case and, not only confirmed the appellant?s claim to ownership of the land but said, in addition, that it was the appellant (not Ajuwana) who pledged the land to the respondent although he soon admitted under cross-examination that the pledge incident did not take place in his presence. Be that as it
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may there was, therefore, evidence before the trial Court on which to make a categorical finding on the issue whether or not as between ?A? (the appellant) and ?B? (the respondent), ?B? was on the land in dispute by the grace of ?C?, i.e. Ajuwana (who although not a party in these proceedings was, however, a person through whom ?B? (the respondent) claimed). Equally, he had inter alia, the evidence of Patrick Okoroma on which he could also have resolved the issue whether ?B? (the respondent) was on the land by the grace of ?A? (the appellant). The trial Court apparently did not realize it had a duty in the circumstances to make express findings on these vital issues, and not merely to rely, in the peculiar circumstances of these proceedings, on the general principles of law enshrined in the Ekpo vs. Ita (1932) XI NLR 68 and Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336 cases. It is, however, not open to this Court which has not had the opportunity of observing the witnesses in this case give evidence, to make these important specific findings.
Again, it is the law that where
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one party obtains possession of land by permission of another he cannot, in law, use that possession to support a plea of jus tertii against that other. Adverting, therefore, to the evidence before the trial judge we are of the view that he had a duty, in the circumstances of this case, to make express findings on the issue whether, as claimed by the appellant, the respondent obtained possession of the land in dispute by the grace of his ancestors (i.e the appellant?s ancestors); and had he made any express finding on this issue he would have been in a position to apply the above principle of law which prevents a party who is in possession of land (in this case, the respondent) from using such possession to support a plea of jus tertii against the party from whom he obtained such possession (i.e as alleged, the appellant and his ancestors).
As already stated the trial Judge had abundant evidence on which to resolve these vital issues; he, however, failed to do so because, in our view he did not appreciate that he had a duty in the circumstances of these proceedings to go beyond the general principles of law enshrined in the Ekpo v. Ita and Kodilinye
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vs. Mbanefo Odu cases and make specific findings on the issues. Had he done so, his conclusions on the claims, based on the evidence before him, might or might not have been the same as stated in his judgment; the fact, however, remains that the judgment from which the appellant appeals neither took into consideration nor resolved the vital issues in this case. In the circumstances, we find ourselves unable to support the judgment of the Court below. It is our view that this is a proper case for an order for re-trial in the High Court of Imo State before another Judge.
Accordingly, this appeal succeeds.?
See also Okpala vs. Ibeme (1989) 3 SCNJ 152 at 160. In Clerk and Lindsell On Torts 15th Edition, paragraph 22-48 and 22-49 page 1128 to 1129 appears the following statement of law:
?Ejectment: In the action of ejectment, now called the action for the recovery of land, the plaintiff is out of possession and claims immediate possession of the land. To do this he must recover ?by the strength of his own title and not by the weakness of the defendant?s?. He must therefore prove the links in his own title. He may, for
39
example, prove his title as a mortgagee and claim for possession if the mortgagor is in default. The defendant, on the other hand, need only prove that he is in possession and need not prove any title. ?In ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against anyone, and those who sought to turn the man in possession out must show a superior legal title to his. Proof that the plaintiff was in possession before the defendant, no matter for how short a time, is prima facie evidence of his having title, for such prior possession raises a presumption that he was seised in fee; and such presumption cannot be rebutted merely by showing that the plaintiff did not derive his possession from any person who had title. Whether or not it may be rebutted by showing that the title is in fact in a third person, in other words, whether jus tertii is a good defence to an action of ejectment, is doubtful. The cases of Doe d. Carter vs. Barnard, and Nagel vs. Shea, are authorities in favour of the view that jus tertii is a defence.<br< p=””
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The authority of Doe d. Carter vs. Barnard is accepted by some, but the decision is open to serious objection and has been doubted by Lord Mancnaghten in Perry vs. Clissold as difficult, if not impossible, to reconcile with Asher vs. Whitlock. In Asher vs. Whitlock a plaintiff with a better title than the defendant recovered possession although, as the land in question was an encroachment on manorial waste, neither party had a title against the lord of the manor. Though the third party?s title was not directly in issue, the case is the leading authority on the nature of the plaintiff?s title in ejectment. The question has been investigated afresh by the High Court of Australia in Allen vs. Roughley, where Dixon, C.J., and Fullagar, J., rejected the view of Sir. Williams Holdsworth that the plaintiff?s title in ejectment depends on proof of an absolutely good title and that therefore jus tertii is pleadable. It is submitted that their Lordships are correct and that title in ejectment is satisfied by a relatively better right to possess. This being so, a prior possession is normally sufficient and it is irrelevant for the defendant to show
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that a third party has a better right to possession than the plaintiff. He can plead a better right to possess in himself, jus sui, but jus tertii is irrelevant to the plaintiff?s claim which does not rely on any other right than his better right to possess than the defendant. Where the plaintiff, however, does not altogether rely on proof of possession but adduces documentary evidence of title the defendant cannot be precluded from attacking that evidence and to that extent jus tertii is relevant. For example, he may wish to show that a will under which the plaintiff claims is invalid, but for the reasons submitted above that does not mean that he can attack by a plea of jus tertii a claim founded on actual prior possession.?
On the whole, I see no merit in this appeal which I hereby dismiss with N50,000.00 cost awarded to the respondent against the appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the lead judgment just delivered by my brother, JOSEPH TINE TUR, JCA.
I agree with his reasoning and conclusions. I also dismiss the appeal.
I abide by the consequential order made as
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to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read in draft the judgment of my learned brother, HON. JUSTICE JOSEPH TINE TUR, JCA. I agree with the conclusion therein that the appeal is devoid of merit and is dismissed. I abide by the consequential order for costs made therein.
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Appearances
Arinze Obidozie, Esq. (Holds brief for A.I. Agbogu, Esq.)For Appellant
AND
S.G. Anozie, Esq. (Holds brief for Chief G.O. Osigwe, Esq.)For Respondent
