S.A. AKINOLA & ANOR v. WEMA BANK PLC (2014)

S.A. AKINOLA & ANOR v. WEMA BANK PLC

(2014)LCN/7519(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of November, 2014

CA/L/25/2011

RATIO

APPEAL: ISSUES RAISED SUO MOTU; WHETHER WHEN A COURT RAISES AN ISSUE SUO MOTU, THE PARTIES MUST BE HEARD

I agree with the appellants that it now settled that when a court raises an issue, a matter or fact suo motu, the parties must be called upon to address the court on the point before resolution, i.e. the parties should
be heard on it. See ADEGOKE V ADIBI & ANOR (1992) 5 NWLR (Pt.242) 410; OJE V BABALOLA (1991) 4 NWLR (Pt.185) 267; BADMUS V ABEGUNDE (1999) 11 NWLR (Pt.627) 493 and COOKEY V FOMBO (2005) 15 NWLR (Pt.947) 182 where the court held as follows:
“It is the law that a court should not take up a point suo motu and decide the matter before it on that point without hearing the parties.”
The rule is not without exceptions and some of which are where it is not substantial and it does not occasion a miscarriage of justice and where the issue, matter or fact exists in the litigation. per. YARGATA BYENCHIT NIMPAR, J.C.A.

ACTION: CAUSE OF ACTION; THE DEFINITION OF CAUSE OF ACTION

Cause of action was defined in the case of IKINE V EDJERODE (2001) NSQLR Vol. 18 341 thus:
“The term “cause of action” means all those things necessary to give a right of action whether they are to be by the Plaintiff or a third party.”
Cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse.” per. YARGATA BYENCHIT NIMPAR, J.C.A.

PRACTICE AND PROCEDURE: ESTOPPEL; THE GENERAL PRINCIPLE OF ESTOPPEL AND THE EXCEPTION TO THE RULE

Estoppel generally is known to be a shield and not a sword but there is a qualification to the general rule. Estoppel generally is an admission of something which the law views as equivalent to an admission. And admission is defined by Blacks Law Dictionary 9th Edition as follows:
“Any statement or assertion made by a party to a case and offered against that party; on acknowledgment that facts are true.”
Thus estoppels by its very nature considered as conclusive that the party whom it affects is not allowed to plead against it, or adduce evidence to contradict it, it prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who relying upon them, has altered his position. There must be some previous acts, omission or declaration intentionally made by a person which caused or permitted the other person to believe to be true and upon which the later acted to his detriment, See the case of ADONE V IKEBUDU (2001) NSQLR W18 174 where the Supreme Court defined estroppel as above and the case of UDE V OSUJI (1998) 9 – 10 SC. 188 where the Supreme Court again described estoppels by conduct in the following manner:
“Estoppel by conduct is that where one party has by his words or conduct made to the other promise of assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then once the other party had taken him at his word acted on it, then the other who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him.”
The general principle is that a party is not allowed to or proceed from contending the contrary or opposite of any specific point which have been once distinctly put in issue which has certainly and solemnly been determined against him.
The exception to the general rule was restated by AKAMBI J.C.A (as he then was) in the case of O.A.U. V ONABANJO (1991) 5 NWLR (Pt 193) 549 at 567 thus:
“As to whether or not estoppels can be used to found a cause of action, I venture to say that very much depends on the nature of the claim and the facts and circumstances of the case.
However, it is not entirely as often been said that it can never be used as a sword. If any authority is needed, I find one in the case of PASCOE V TURNER (1979) 2 ALL E.R. 945 at 949 where the point was made that –
“Where estoppel by encouragement or acquiescence is found on the facts, those facts give rise to a cause of action. They may be relied on as a sword not merely as a shield.”
However, the facts in the above cited case are completely different from the case in hand. The principle of estoppel is founded in equity and justice. The question is whether by act or omission the Respondent led the appellants in to believing that they own the houses even when the clear provisions of Exhibit 2 speak otherwise? The point of threat to eject appellants was made at the trial court. Exhibit 2, never mentioned appellants as owning the houses on owner/occupier basis but strictly as a service tenants which also must be paid for on a subsidized rate. per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. S. A. AKINOLA
2. A.O. OGUNGBE
(Suing for themselves and on behalf of 34 Occupiers of the Flats at the National Bank Housing Estate, Satelite Town Badagry Expressway, Lagos
34 occupiers of the Flats at the National Bank Housing Estate, D Satellite Town Badagry Expressway, Lagos) Appellant(s)

AND

WEMA BANK PLC (In substitution for National Bank of Nigeria) Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of HONOURABLE JUSTICE A. OLATERU – OLAGBEGI of the Lagos State High Court, delivered on the 2nd July, 2004 in the favour of the Respondent. The appellants were Claimants in the High Court whilst the present Respondent acquired the initial defendant – National Bank of Nigeria and was substituted by order of court on the 11th day of June, 2007.

The appellants being dissatisfied with the judgment of the court filed a Notice of Appeal dated 11th day of April, 2011 with 7 grounds of appeal pursuant to leave of this court granted on the 6th April, 2011 extending the time within which the appellants can appeal.

FACTS
The appellants by a further amended writ of summons and statement of claim dated 12th day of January, 2005 claim from the Respondent the following reliefs:

a. A DECLARATION that the plaintiff’s are prospective owners of the respective houses/flats and quarters they now live at the National Bank Housing Estate, Satellite Town, Badagry Expressway, Lagos.

b. AN ORDER OF PERPETUAL INJUNCTION restraining the defendant by themselves, their servants, agents and/or privies from interfering with the plaintiffs’ occupation of their houses/flats or taking any step whatsoever from evicting or dispossessing the plaintiffs from their respective flats or houses in their occupation of the National Bank Housing Estate, Satellite Town, Badagry Expressway, Lagos.

c. AN ORDER that the Defendant should accept from the Plaintiffs the difference (if any) between the amounts already paid by the Plaintiffs as deposits and the value of respective houses/flats as at the date of the completion of the houses/flats in full and final settlement of the purchase prices of the respective house/flats occupied by the Plaintiffs.

d. That the defendant does prepare a purchase agreement for the parties to execute.

The Appellants were staff of the Respondent and had served the Respondent for between 10 – 20 years. They occupy houses owned by the Respondent but allocated to them when they were in service. The land upon which the houses were built was allocated to the Respondent by the Federal Government to build houses for the benefit of workers in the employment of the Respondent. The intention of the Federal Government was to aid workers to own houses. Appellants are no longer in the employment of the Respondent and sought to own the houses by taking out a writ against the Respondent claiming the reliefs reproduced above. The trial court dismissed their claim thus this appeal.

The appellant filed their Appellants Amended brief on the 24/9/2013, deemed and adopted on the 21/10/2014 wherein the appellants distilled 4 issues for determination as follows:

(i) Whether from the state of the pleadings and evidence, the learned trial Judge could have correctly reached a decision that the Appellants have no cause of action in this suit without the benefit of argument of either side.

(ii) Whether the learned trial Judge of the Lagos State High Court was right in law in extricating the Exhibit 2 and basing the judgment on the Exhibit alone to the exclusion Exhibits 1, 12 & 13.

(iii) Whether there was any evidence to support that the Respondent was a trustee and bound by the conditions stated in Exhibit 12 and the Satellite Town Land (Title, Vesting and Validation) Act 1991 which the learned trial Judge ignored in its judgment.

(iv) Is the doctrine of estoppel applicable to the facts of this case and if so could the trial court have validly, dismissed the Appellants’ claim.

On the part of the Respondent, it filed its brief on the 8/5/13 and was adopted on 21/10/14 here in it formulated 4 issues for determination in this appeal namely:

(a) Whether the learned trial Judge was right in arriving at his decision on the claim put forward (sic) by the Appellants.

(b) Whether in view of the findings of the learned trial Judge on the Exhibits tendered in evidence at the trial, it is right to say the learned trial Judge extricated Exhibit 2.

(d) Whether the Appellants can raise the plea of estoppel as a cause of action or not.

The court shall adopt the issues distilled by the Appellants for determination and commencing with the first tissue.

Issue one above questions whether the trial Judge was right to have resolved the issue of cause of action without calling on the parties to address on it. Arguing this issue the Appellants referred to its statement of claim and reliefs which they submitted were specific and therefore did not elicit an interpretation by the trial Judge. They admitted that Plaintiff’s claim determines jurisdiction and relied on several cases to contend that the statement of claim and reply to the statement of defence disclosed a cause of action cognizable within the provisions of Section 6(6)(b) of the 1999 Constitution empowering the court to determine civil rights of the parties. They submitted that their claim is not speculative, premature but sustainable because the Respondents were threatening to eject them from the houses.

Furthermore, that the Respondents joined issues on owner/occupier arrangement and the Respondents refusal to grant to the Appellants Housing Loans on the ground there they were already in occupation of the Houses. They urged the court to find for the appellants under this issue.

The Respondent by its issue also addressed the question of the propriety of the trial Judge to decide on cause of action without calling on parties to address it. The Respondent agreed with the trial Judge on his findings that to determine the claim would amount to speculation into the future which it could not do. That the appellants by their showing pleaded that they are prospective owners of the respective houses/flats they now occupy and the trial Judge considered the meaning of prospective owners to find that there was no cause of action. Learned Counsel picked the definition of cause of action espoused in the case of COOKEY V FUNSHO (2005) 15 NWLR Pt 947 18.

The Respondent contended that the appellant by issues B, C and D at the lower court submitted that they established a cause of action by their pleadings and evidence in support. That, therefore, it was from the appellant’s submission that the learned trial Judge determined that there was no cause of action. But that assuming without conceding that the trial Judge raised the issue suo moto, it is the duty of the trial court to decide issues in dispute as decided in IKEGWUOHA V OHAWUHI (1996) 3 NWLR (Pt 435) 146 and that the appellants were given a hearing on the issue. Arguing further, Learned Counsel to the Respondent submitted that even if it were so, it is a slip which did not occasion a miscarriage of Justice as considered by the trial Judge at page 438 of the record. The Respondent relied on ALHAJI BUBA USMAN V MOHAMMED TANIMU GAKE (1999) 1 NWLR Pt 587 at 466 where the court held that a Judge is not liable to be reversed if an issue was raised suo motu and decided upon without giving an opportunity to Counsel to address on it provided that no miscarriage of Justice was occasioned and also the case of IMAH V OKOGBE (1993) 9 NWLR (Pt 316) 159.

Learned Counsel for the Respondent submitted that the trial Judge considered the totality of pleadings before it to come to the finding that the claim was as prospective owners which is not recognized in law. He urged this court to find as such here.

On the part of the court, the issue here is whether the trial Judge was right in holding that there was no cause of action without calling on parties to address the court on it before determination.

The important consideration here is whether from the aggregate of facts, the appellants have a right of action against the Respondent. The trial court found that the alleged right has not crystallized into a right that can ground a cause of action. The court considered the claim of the appellants that they are prospective buyers which presupposes the fact that they are yet to be owners and I find that it explains why the last claim is seeking an order to make the Respondent prepare a purchase agreement for the parties. The appellants by their own choice of words labeled themselves as prospective owners which is to say that they are not yet owners even in equity but seeking to be. To be so, there must be grounds strong enough for the court to find that they indeed should have been owners. The speculative nature of the claim made the trial court to dismiss the claim on the fact that the court cannot recognize any existing right that should be protected and went on to hold that there was no cause of action.

As cause of action defined above included the totality of all things that could enable the court to grant reliefs claimed, the totality of the case of the appellant presented to the lower court was based on the belief that it established a cause of action. The resolution of the claim of the appellant was invariably the resolution of whether there was a cause of action or not. It is a cause of action that gives rise to reliefs. So therefore, if a claim is proved means there was a cause of action that the court considered valid to be protected. There is no how a party can have a relief without a cause of action. Meanwhile a party can have a cause of action but fail to prove same for lack of evidence.

The trial Judge considered the totality of the case presented by the Plaintiffs and rightly found that there was no cause of action. The Appellants (Plaintiffs) did not prove any of the reliefs claimed because it was inchoate, not crystallized and without basis. One may ask, what does that amount to? The simple answer is that there was no cause of action.

Taking away the use of the words ’cause of action’ would still have the same result, the failure of the action. Cause of action therefore cannot be said to be an issue that is outside the contemplation of the case before the lower court. This is not one of the cases that can qualify for the rule that parties must be called upon to address the court before resolving it.

Furthermore, the appellant as plaintiffs by their own showing sought to use estoppel as a sword and that raises cause of action for which the Judge must evaluate the evidence both documentary and oral to determine cause of action. A court can only be accused of raising an issue suo motu if the issue, matter of fact did not exist in the litigation, See IKENTA BEST (NIG) LTD V A.G. RIVERS STATE (2008) MSCQR VOL.32 1074 at 1106 where TOBI J.S.C. said thus:
“A Judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It would be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu.”
Furthermore, in the case of WEST AFRICAN BREWERIES LTD V SAVANNAH VENTURES & OTHERS (2002) MSCQR VOL.10 875, the Supreme Court on the duty of the Judge to evaluate evidence and make findings said thus:
“On whether the court can embark on evaluation of documentary evidence before it in other to make findings on facts in issues before it? Authorities against raising issue suo motu don’t go to the extent of prohibiting the court from evaluation of documentary evidences before it either by itself or alongside other evidence in the case in other to make findings or fact on issues before it. Granted that sometimes the line between what is investigation and what is evaluation of documentary evidence may be blurred to define, the distinction is that whereas; investigation leads to a discovery of fresh fact, of which could have been challenged by fresh contrary evidence; evaluation of evidence leads merely to findings based on the quality of evidence already existing Per AYOOLA J.S.C. at 892 – 893”.
To situate the above authorities, there was nothing that the Judge discovered as fresh fact in making the findings that there was no cause of action. The trial Judge evaluated all the evidence before it and found that there was no basis for the claim as the appellants were merely working on assumptions which consequently meant there was no cause of action. All were within what was before the trial court. This therefore is not one of the cases that can be said that the Judge raised the issue of cause of action suo motu because it was an issue in the determination of the suit.
It was not imported as alleged.
The Supreme Court Per ADEKEYE J.S.C. in the case of LEADERS AND COMPANY LTD & ANOR V MUSA BAMAIYI (2011) MSCQR VOL 46 807 had this to say:
“It is noteworthy that it is not in all cases where a court raises an issue suo motu that will lead to reversal of the decision so reached. The appellant court sitting over the judgment must be convinced that the issue so taken suo motu is substantial and has led to a miscarriage of justice against the appellant.”
Here, the issue of cause of action to a claimant who relies on estoppels as a sword is intrinsic in such a claim and not an importation. A Judge must of necessity find that a claimant can do so and in the final determination of a claim a trial Judge must resolve whether the claim stands or falls; that cannot amount to raising an issue suo motu.

The allegation herein is unfounded and cannot stand. I resolve this issue in favour of the Respondent.

The appellants in arguing issue two submitted that the trial Judge’s failure to evaluate or give evidential value to exhibits 1, 12 and 13 but rather relied on Exhibit 2 is prejudicial to the case of the appellants. They listed the exhibits allegedly excluded as:

Exhibit 1    –    Circular dated 23/04/80
Exhibit 2    –    Circular dated 13/8/80
Exhibit 12    –    Cic of letter dated 15/8/94
Exhibit 13    –    A letter dated 28/8/80

Learned Counsel to the appellants argued that the trial Judge at page 412 of the record relied solely on Exhibit 2 which he said was the document the claim of the Appellants hanged on and which to the appellants created a trust concept between the Federal Republic of Nigeria and the Respondent for the Respondent to transfer to their employees (the Appellants) the houses on owner/occupier basis. He defined trust concept following Maitland’s definition in the book: Law of Contract by M.P. FURSTON. That the fact that the land was allocated to the Respondent by the Federal Government was admitted by DW1 and that it was meant to facilitate house ownership by workers of the Respondent. The appellants contended that the allocation of houses was to be an owner occupier basis while the cost deducted from the salary of the allottees being potential owners not tenants. They argued that Exhibit 1 has the conditions attached to beneficiaries; Exhibit 13 is refusal of Respondent to grant allottee Housing loans because they were occupying the houses. They complained that the trial Judge did not give evidential weight to Exhibit 12 and urged this court to evaluate the Exhibits and ascribe value as they relied on GONZEE NIGERIA LIMITED V NERDC (2005) ALL FWLR (Pt.274) 235; EZE V AG, RIVERS STATE (2002) FWLR (Pt.89) 1109 and IWO LOCAL GOVERNMENT V ADIGUN (1992) 6 NWLR (Pt 133) 494.

Appellants submitted that on the authority of F.S.B. INTERNATIONAL BANK LIMITED V IMANO NIGERIA LIMITED (200) FWLR (Pt 19) 392 (incomplete citation) this court is in the position of a trial court to examine the exhibits and make appropriate findings on them and set aside the Judgment of the trial court for its failure to evaluate evidence as decided in the case of IWUOHA V NIPOST LTD (2003) FWLR (Pt 160) 1535.

Furthermore, appellants urged the court to give meaning to owner/occupier in Exhibit 12 and find the intention of the Federal Government, they relied on RIVER WEIR COMN V ADAMSUN, 2 APP CAS 745, 763 (relied on in ROYAL BANK OF CANADA V SALVATORI, 107 1C 546; A 1927 PC 271). They finally on this issue urged the court to find for the appellants.

The Respondent on this issue submitted that contrary to the submission of the appellants, the trial Judge considered all the Exhibits as evidenced by the Record of Appeal at page 407, 408, 412 where the trial Judge considered all the Exhibits and found that the claim revolved around Exhibit 12, the letter of allocation and Exhibit 2 the document containing the policy of the Federal Government.

Furthermore, that the findings support the conclusions of the trial Judge on these Exhibits because the trial Judge said Exhibit 2 is the document which created the rights and obligations of the parties in respect of the houses and relied on ARABAMBI V ADVANCED BEVERAGES LTD (2005) 19 NWLR (Pt, 859) 1 SC.

The Respondent argued that the trial Judge evaluated the Exhibits and based his judgment on Exhibit 2 and 12 giving the wordings its ordinary meaning. Respondent urged the court to find for the Respondent under this issue.

This issue alleges that the trial Judge relied only on Exhibit 2 alone to the exclusion of Exhibits 1, 12 & 13. I agree with the Appellants that a trial judge is under a duty to evaluate evidence presented in proof of a case before him and such that it is in respect of live issues and not speculated issues. The facts pleaded and evidence tendered all go to show the desire of the Appellants to have the houses sold to them not that there is a binding agreement.

The trial Judge made a finding at page 412 of the Record of Appeal (the judgment) that the claim revolves around Exhibit 2 and Exhibit 12, these are the letter of allocation with rules and regulations and the Federal Government House Ownership Policy Statement. The trial Judge narrowed down his focus on Exhibit 2 as constituting the Plaintiffs cause of action. It cannot therefore be said that the trial Judge only considered Exhibit 2 to the exclusion of the others.

I have gone through the Exhibits tendered before the trial court and I agree with the trial Judge that the exhibits relevant to the claim were the ones considered by the trial judge and also Exhibit 6, the quit notice issued to one of the Appellants. The findings of the trial Judge conforms to what is reflected on the Exhibits. The allocation letter never said the houses were allocated on owner/occupier basis and the Federal Government Policy on houses for low income workers is strictly between the Federal Government and the Respondent. Furthermore, Exhibit 2 paragraph 2(iv) clearly provided for a situation where an allottee is transferred out of Lagos, he is given just a period of grace after which h must vacate the premises. This provision is not logical with allocation of houses on owner/occupier basis. The appellant being part of a larger workforce of the Respondent cannot claim any specific interest over and above that of other staff. There is nothing perverse in the evaluation of evidence by the trial judge.
An appellate court would not ordinarily interfere with the findings of a trial court except if it is perverse; see the case of WOLUCHEM V GUDI (1981) 5 S.C. 291 where the Supreme Court held as follows:
“The principles under which an appellate court would interfere with the findings of a lower court have been laid down by several authorities of this court and court in common law jurisdictions. It is now settled law that if there has been a proper appraisal of evidence by a trial judge a court of appeal ought not to embark on a fresh appraisal of the same evidence in order to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not the business of a court of appeal to substitute its own views for the views of the trial court.”
There is no need to upturn the evaluation of evidence done by the trial judge who is the master of facts.

The resolution conforms to documentary evidence before the court and did evaluate Exhibit 1, 12 and 13. The evaluation is not perverse.

I resolve this issue against the appellants and in favour of the Respondent.

The appellants argued issue three and emphasized that the Respondent is a trustee of the Federal Government. They explained that it is so because the Respondents were carrying out Federal Government directives concerning the housing policy. They argued that the Respondent admitted breaching the policy by not giving out the houses on owner/occupier basis as required by the Federal Government and that cannot invalidate the policy nor remove the trust concept. They submitted that privity of contract should be jettisoned to enable the Respondent carryout the intention of the policy. They contended that failure to consider Exhibit 12 occasioned a miscarriage of Justice and therefore the rules and regulations issued to the appellants is contrary to the intendment of the Federal Government, they urged the court to set aside the judgment of the trial court and uphold the reliefs of the Appellants.

On this issue the Respondent submitted that the Appellants failed to establish a trust concept at the lower court because the intention was not established. Furthermore, the Respondent argued that the Statute of Frauds 1677 and Property & Conveyancing Law governs the creation of trust touching on land. The Respondent argued that intention must be crystal clear and unambiguous and there is no such intention in Exhibit 12, therefore no trust was established at the lower court and Exhibit 12 foresees a situation where a staff is disengaged from service. The contention is that no person from the Federal Government was called to testify on the intention of the Federal Government in that regard and therefore there is no evidence of trust presented to the trial court.

The Respondent argued that since the appellants accepted Exhibit 2 with all its terms and conditions, it is too late for them to want to resile from its effect, and relied on IDIRISU V OBAFEMI (2004) 11 NWLR
Pt. 884 396 at 408 and EZEUGO V OHANYERE (1978) 6 – 7 SC 171 at 184. The Respondent urged the court to find for the Respondent.

This issue resolves around the question of trusteeship. Trust was defined in the book by Underhill and Hayton titled: The Law Relating to Trust and Trustees 14th Edition (1987) at page 3 thus:
“An equitable obligation, binding on a person (who is called a trustee) to deal with property over which he has control (which is called the trust property) for the benefit of persons (who are called beneficiaries) of whom he may himself be one, and anyone of who may enforce the obligation. Any act or neglect on the part of the trustee which is not authorized or excused by the terms of the trust instrument, or by law, is called a breach of trust.”

Appellants contended that the Respondent is trustee of the Federal Government. The basic question is whether there is any statement to that effect in Exhibit 12 or the Satellite Town Land (Title, resting and validation) Act 1991? Can a trust concept be read into Exhibit 12? I don’t find anything that can be termed as trust concept. If the Federal Government had wanted to create a trust, Exhibit 12 would have started so clearly. The argument to jettison privity of contract cannot stand. Imagination and sentiments have no place in adjudication. There may be the semblance of a trust concept but trusteeship cannot be created by insinuation or conjecture. There is always a clear statement creating trusteeship and identifiable properly, beneficiaries and trustee clearly identified.

As observed above the land was allocated to the Respondent to build houses for their staffs which were not static but the character kept on changing employment, transfer and retirement and therefore the appellants cannot arrogate to themselves the beneficial rights just because they are in possession when they acquiesced to the terms of the Respondent for occupation in Exhibit 2. They cannot wake up now to want to resist or protest. There is no trust concept that can compel specific performance by the Respondent.

Furthermore, as submitted by the Respondent, Section 78(1) of the Property and Conveyancing Law demands such a trust touching on land must be in writing and that is lacking in this case. I don’t find anything perverse in the evaluation of evidence and findings of the trial Judge to warrant dismissing his judgment. I resolve this issue in favour of the Respondent.

The Appellants under issue four submitted on the doctrine of estoppel and as to whether it applies to the facts of this case. They submitted that a party cannot be heard to allege the contrary and that it is a question of facts not law based on equity. They contended that by paragraph 15 and 16 of their reply to the statement of defence and evidence led in support by PW1 and PW2 they established estoppel. That it was wrong for the trial Judge to find otherwise because the rejection of J.O. OLUPINLA’S application (Exhibit 13) for loan made the appellants to believe that it was because they were owners of the houses.

They argued that the Respondent is caught by Section 151 of the Evidence Act and therefore estopped by their conduct from denying the Appellants who had been in occupation for over 20 years, they cited the case of ABALOGU V SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD (2003) 45 WRN 1 at 21. They submitted that having been in possession, they carried out repairs on the houses, deductions made from their salaries, and that they were retired from service therefore they are entitled to own the houses on owner occupier basis. They finally urged the court to find for the appellants in the appeal and set aside the judgment of the trial court.

The Respondent submitted that estoppel is used as a shield not a sword and therefore it cannot be used to create a cause of action as Appellants seek to do here, he referred to the case of USE V USUJI (1998) 12 NWLR Pt 580 1 at 8. That the trial judge at page 447 of the record followed the decision above.

On the issue of whether the appellants made payments through deductions from their salaries, the Respondent submitted that it is customary for service tenants to pay rents by deductions from their salaries, he cited TARBETT V FAULKER (1952) 2 TLR 659 relied on in CHUKWUMA V SHELL BP (1993) 4 NWLR Pt 289 512. That Exhibit 2 spells out the terms and conditions of the appellants occupation of the premises and that the appellants just loose their house allowances and pay nothing towards a fixed cost of the houses.

The respondent further argued that assuming that estoppel can ground a cause of action as an exception to the general rule as held in the case O.A.U V ONABANJO (1991) 5 NWLR (Pt 193) 549 at 567, the condition precedent to such happening is absent in this case as Exhibit 13 does not state that the refusal of the loan was because the appellants were in occupation of the premises in issue as owners/occupiers.

On the long occupation, the Respondent argued that occupation was for the benefit of appellants employment and Exhibit 2 demonstrates that and that the Respondent did not in any way encourage the appellants to stay on as Exhibit 6 is a quit notice. On repairs, respondent submitted that there was no single document to prove repairs on the houses. The Respondent finally urged the court to find for the Respondent in the appeal to dismiss the appeal and affirm the judgment of the trial court.

Without any positive acts on the part of the Respondent, the appellant cannot raise estoppel. The appellants were working on blind assumptions which have no basis to support it. Exhibit 2 binds them, Exhibit 13 does not talk about their inability to access housing loans because they owned the houses. That would have been contradictory to the clear provisions of Exhibit 2. There was no act of the Respondent that can be considered as leading the appellants into believing that they are owners of the houses they now occupy even after their service had come to an end, a clear breach of Exhibit 2 and Exhibit 6 which is a quit notice.

I find for the Respondents under this issue.

Finally, the appeal lacks merit, the judgment of HON. JUSTICE OLATERU-OLAGBEGI delivered on the 2nd July, 2014 is hereby affirmed. The appeal is hereby dismissed cost of N50,000 to the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of preview of the succinct judgment prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., in which l concur and adopt as my judgment with this little addition on estoppels as a cause of action or sword.

Estoppel may, in appropriate cases, furnish a cause of action. If, for instance, a party has previous judgment in a land case he may use it to found an action in trespass and injunction against his opponent.
In respect of previous judgment from a Customary or Area Court (Native court) without a survey plan tied to it, the claimant may use the previous judgment to found an action in the High court over the same piece of land where the disputed piece of land would be tied to a survey plan for certainty of its boundaries. See Mogo Chikwendu v. Nwanegbo Mbamari and Anor. (1980) 3 – 4 S.C. 31, Udeze and Ors. v. Chidebe and Ors. (1990) 1 SCNJ 104, Adomba and Ors. v. Odiese and Ors. (1990) 1 SCNJ 135 at 143 (para 5), Ojiako and Ors. v. Ogueze and Ors. (1962) All N.L.R. 58 at 62.

It is for the reason (supra) and the fuller reasons contained in the lead judgment that I too find no substance in the appeal and hereby dismiss it and affirm the judgment of the court below (Olateru-Olagbegi, J.). I abide by the consequential order on costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I had read before today the lead judgment just delivered by my lord Yargata Byenchit Nimpar JCA, and I agree with the reasoning and conclusion contained therein that the appeal is devoid of any merit.

I too dismiss the appeal and abide by the consequential orders contained therein.

Appearances

Audu AugustineFor Appellant

AND

Lanre OlayinkaFor Respondent