NWOBODO v. VINCENT (2021)

NWOBODO v. VINCENT

(2021)LCN/15191(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Monday, May 10, 2021

CA/E/285/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

INNOCENT NWOBODO APPELANT(S)

And

UZODIKE VINCENT RESPONDENT(S)

RATIO

WHEN AMENDMENT OF PLEADINGS OUGHT TO BE ALLOWED

Amendment of pleadings for the purpose of determining the real issues in controversy between the parties ought to be allowed at any stage of the proceedings including on appeal. The discretion ought to be exercised so as to do what justice and fair play may require in the particular case. An amendment will be granted to enable the pleading conform with the evidence on the record. An amendment will be granted if such an amendment can prevent injustice. Conversely, any amendment which will result in injustice to the other party or which will violate the rule of audi alteram partem ought not be allowed. See Chief Ojah & Ors v. Chief Ogboni & Ors (1976)4 SC 19; Okafor v. Ikeanyi & Ors (1979) LPELR– 2418 SC.; Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd (2003) LPELR – 1608 SC; M. T. Mamman v. A. A. Salaudeen (2005) LPELR – 1833 SC and NJC v. Dakwang & Ors (2019) LPELR – 46927 SC. PER JAMES SHEHU ABIRIYI, J.C.A.

WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION MADE BY THE TRIAL COURT

BURDEN OF PROOF PLACED ON A PLAINTIFF SEEKING A DECLARATORY RELIEF

It is the practice that a declaratory relief such as the Appellant sought in the Court below will be granted where the plaintiff is entitled to it in the fullest sense of the word. See Chukwumah v. S.P.D.C (Nigeria) Ltd (1993) LPELR – 864 SC p.64-65. It is the law that the plaintiff in a claim for declaration of title land must plead and prove his claim without relying on the evidence called by the defendant. The plaintiff will not be entitled to the declaratory relief even on admission by the defendant. The plaintiff must lead credible evidence before the Court can grant him the declaratory relief he seeks. See Matanmi & Ors v. Dada & Anor (2013) LPELR – 19929 and Anyanru v. Mandilas Ltd (2007)4 SCNJ 285. PER JAMES SHEHU ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 30th June, 2014 in the High Court of Enugu State sitting at Enugu.

In the High Court (the Court below), the Appellant was the plaintiff. The Respondent was the defendant/counterclaimant.

The claim of the Appellant against the Respondent was for the following:
“(a) A Declaration that the Plaintiff as beneficial Owner is entitled to the Grant of Statutory Right of Occupancy over the piece of Land situate at Ugbo Umelia Umuchigbo Iji Nike along the Enugu Abakaliki Express Road adjacent to the Emene Airport Fly over measuring 1382.153 Squares (sic) and Fenced Round with Cement Blocks and Installed thereat with an Iron Gate and which Land is more particularly delineated in Survey Plan No. Kor/EN/81(D) 2009 annexed to these Presents.
(b) An Injunction restraining the Defendant, his Agents, Privies, Servants or whosoever acting on his instruction and stead from having anything to do with the said land.”

The Respondent counterclaimed for the following:
“i. AN ORDER OF PERPETUAL

INJUNCTION restraining the Plaintiff, his agents, servants, privies, or any person whatsoever acting on his instructions from further illegal entry, occupation, constructions or development or building on the Defendants land.
ii. A DECLARATION that the irrevocable Power of Attorney donated by Umuchigbo Iji Nike in favour of Dr. Levi Muonanu registered as No. 78 at page 78 in Volume 1489 at the Land Registry Enugu, is null, void and of no effect.
iii. A DECLARATION that the Unregistered Deed of Assignment made between Dr. Levi Muonanu and Dr. Innocent Nwobodo on 3rd day of November, 2001 together with the consent made on behalf of Umuchigbo Iji Nike Community is null, void and of no effect as same is contrary to the provision of the Land Use Act 1978.
iv. A DECLARATION that the Defendants Deed of Sublease made between NECI Land Development Corporation Limited and the Defendant, registered as No. 96 at page 96 in volume 911 at the Deeds Registry Enugu is valid and subsisting.
v. A declaration that the Defendant is entitled to the grant of Statutory Right of Occupancy in respect of plot CR/3 New Town Layout Enugu East LGA, Enugu contained in

the Sublease dated February 23, 1978 and registered at the Land Registry Enugu as No. 96/96/911.
vi. 20 Million Naira general and Special Damages for trespass.”

The case of the Appellant in short as can be made out from the evidence of the two witnesses who testified is simple and short. PW2 stated that he bought the land in dispute in 2002 from the original owners, the Umuchigbo Nike Community and sold it to the Appellant in 2006 and handed over all documents in respect of the land to the Appellant. According to the PW1 (the Appellant), he had been in possession of the land since he purchased it until 2008 when the Respondent emerged from nowhere and started claiming the land.

In his defence and in proof of his counterclaim, the DW2 (Respondent) stated that the land in dispute is one of three plots he purchased in 1978 from a company called NECI Land Development Corporation Limited. The said parcel of land is known as plot CR/3. That at the time PW2 purchased the land, the community had divested itself of title to land through their ancestors. When PW2 got the true position of the land at a Commission of Inquiry, he decided to sell it to

the Appellant.

When the Appellant discovered the truth, that the land belonged to the Respondent, the Appellant visited the Respondent in his house with one other medical doctor and requested to purchase the land from the Respondent.

The PW1 and PW2 not being properly aware of the status of the land were wrongly persuaded to enter the land. The PW1 has continued to wrongly claim right of ownership of the land.

The Court below considered the evidence adduced by both parties and addresses of learned counsel. It dismissed the claim of the Appellant and the counterclaim of the Respondent. Both parties have filed separate appeals. This appeal is by the Plaintiff/Appellant. Appeal No. CA/E/451/2016 is the appeal filed by the defendant/counterclaimant/Respondent.

The Appellant’s original notice of appeal was filed on 24th September, 2014. It was amended with leave of Court granted on 4th June, 2020. The amended notice of appeal filed on 22/6/18 was deemed duly filed and served on 4th June, 2020. It contains three grounds of appeal. From the three grounds of appeal, the Appellant presented the following two issues in an amended

Appellant’s brief of argument filed on 17th February, 2021 but deemed duly filed and served on 18th February, 2021:
(a) Whether the learned trial Judge was right in refusing the Appellant (sic) to amend his statement of claim so as to bring it in line with the evidence led received and cross examined upon.
(b) Whether the learned trial Judge was right in dismissing the claim of the Appellant when on preponderance of the evidence led he was entitled to have been given judgment having dismissed the claim of the respondent.

The Respondent adopted the issues for determination formulated by the Appellant.

The Appellant filed an amended reply brief of argument on 17th February, 2021. It was deemed duly filed and served on 18th February, 2021.

On issue 1, learned counsel for the Appellant pointed out that the Appellant had brought an application to further amend his statement of claim by bringing in paragraph 7 which was originally part of his pleadings but was erased as a result of “printers devil” when he amended his pleadings. In that paragraph 7 of the statement of claim it was contended, “purchase receipts and all

other documents relied up were pleaded.” But when the amendment of the pleadings was made the paragraph disappeared as a result of that “printers devil.” The paragraph was however reflected in the deposition of PW1 who tendered the purchase receipts as Exhibits B and C in the proceedings. That PW1 was cross-examined after Exhibits B and C were tendered.

It was argued that there was no intention to remove the paragraph 7 when the amendment to introduce the survey plan was made. By the “printers devil” the said paragraph 7 was no longer there and the Appellant did not take note of it. It was the Court which asked parties to address it on whether Exhibits “B” and “C” were pleaded. The Appellant thinking that paragraph 7 of his statement of claim was still there argued that Exhibits B and C were pleaded.

But the Court delivered its ruling and pointed out that they were not pleaded and then expunged them from the proceedings. It now occurred to the Appellant after going through the amended statement of claim that the said paragraph 7 had been “omitted”.

The Appellant immediately

brought another application to further amend the statement of claim to bring it in line with the evidence already adduced.

The Court below refused to grant the application. The grant of the application, it was argued, will not spring a surprise on the Respondent. Exhibits B and C it was again pointed out were already in evidence but disappeared from the pleadings, paragraph 7 where they were originally pleaded. To again plead them, it was argued, was not to raise a new issue or issues so as to overreach the Respondent or take him by surprise as the Respondent was fully aware of same and did not object to their being tendered in evidence. The Court below, it was submitted, was wrong when it rejected the application to further amend the Appellant’s pleadings to bring it in line with the evidence already led. The Court was referred to Order 24 Rule 8 of the High Court Rules of Enugu State, Warri v. Etsanomi (2005) Vol.1 15 WLR 150 at 167; Adetutu v. Aderohunmu & Ors. (1984) NSCS 389 and Mamman v. Salaudeen (2006) 9 WRN 1.

On issue 1, learned counsel for the Respondent contended that the claim of the Appellant that paragraph 7 in the previous

statement of claim where it was pleaded was removed by the computer is fairytale. That the computer is a machine which acts on command. That you command and it acts. That computer cannot on its own delete.

Learned counsel submitted that amendment of pleadings will not be allowed by a Court where;
i) it will entail injustice to the Respondent.
ii) the applicant is acting mala fide
iii) by his blunder the applicant has done some injury to the Respondent which cannot be compensated by costs. The Court was referred to Oguntimeyin v. Gubere (1964) All NWLR 176 at 179 and Amadi v. Thomas Aplin & Co. Ltd (1972)1 ANLR 409.

It was further submitted that the Court will not grant an amendment of pleadings where the proposed amendment will cause or entail injustice or injury to the other party. The Court was referred to Ozigbo v. Registered Trustee of the Oganiru Social Club of Nigeria (2009)3 WRN 116 at 131.

Appellant’s method and conduct on the amendment issue, it was contended, is at best reprehensible and tardy.

The Court below, it was submitted, was right when it held that the Application was over-reaching on the

Respondent and ought not have been granted. It was further submitted that the Court below was right in refusing the prayer of the Appellant because it would entail injustice, surprise and embarrassment on the Respondent. It was submitted that the Appellant acted mala fide and by his blunder would have inflicted some injury on the Respondent which could not have been compensated by costs. The Court was referred to Aina v. Jinadu (1992) 4 NWLR (pt. 223) 91.

– 2418 SC.; Jessica Trading Co. Ltd. v. Bendel Insurance Co. Ltd (2003) LPELR – 1608 SC; M. T. Mamman v. A. A. Salaudeen (2005) LPELR – 1833 SC and NJC v. Dakwang & Ors (2019) LPELR – 46927 SC.

An appellate Court will not interfere with the exercise of discretion by the trial Court unless it is made clear that in some way, it has exercised its discretion wrongly that is, not judicially as by misdirecting itself in some material particular. An appellate Court will interfere where justice did not result and the trial Court failed to see that such would be the effect of its decision. See Adaramaja v. Adaramaja (1962) LPELR – SC and Awoyale v. Ogunbiyi (1985) LPELR – 6615. In the instant case, the amendment sought did not take the Respondent by surprise. The documents sought to be relied upon had already been admitted in evidence and marked Exhibits B and C before the witness through whom it was tendered was cross examined. There was no objection by the Respondent to the tendering and admission of the documents in evidence. The object of the amendment was to comply with the rule of pleading. The Court below therefore

erred in the exercise of its discretion when it dismissed the application of the Appellant to further amend the statement of claim inspite of apparent prevarication on the part of the Appellant. The claim by the Appellant that the computer ate up the pleading of the documents which was in the original statement of claim but disappeared when he amended the statement of claim is unacceptable. Documents are not filed in Court immediately they are churned out from the computer. There is what in ordinary language called proof reading before the documents are deemed correct for filing. The Appellant ought to have noticed that paragraph 7 of the original statement of claim was no longer in the amended copy. The Court below ought to have granted the application for the further amendment anyway but punish the Appellant for his carelessness and prevarication with costs.

Issue 1 is resolved in favour of the Appellant and against the Respondent.

The ruling of the Court below dismissing the Appellant’s application for further amendment of the statement of claim is hereby set aside.

The application is granted. The further amended statement of claim

dated 6/2/2014 and filed 10/2/2014 is deemed duly filed and served.

On issue 2, learned counsel for the Appellant submitted that civil cases are established on the preponderance of evidence and balance of probability. He referred the Court to Odofin & Ors. v. Mogaji & Ors (1978) 4 SC 91. The Appellant, it was pointed out, tendered exhibits B, C, D and E. That exhibits B and C are purchase receipts.

Learned counsel for the Appellant submitted that it is the law that payment of purchase price by a party for a property automatically confers a right in the party which right is enforceable unless otherwise determined. It was submitted that a purchase of land can be proved by a purchase receipt or by an agreement of sale or by any fact that shows such transaction did take place. The Court was referred to EFP Co. Ltd v. NDIC (2007) NWLR (pt. 1036) 2016; Adepate v. Babatunde (2002) 4, NWLR (pt. 756) 99 and Aminu v. Ogunyebi (2004)10 NWLR (pt. 887)457.

It was submitted that a receipt is a document that satisfies one of the ways to establish title to land as enumerated in Idundun v. Okumagba (1976)9-10 SC 227. The tendering of receipts by the

Appellant without more, it was argued, proved his title to the land.

On issue 2, learned counsel for the Respondent did not take into consideration the fact that issue 1 could be resolved in favour of the Appellant and submitted that the Appellant had no evidence of purchase. He further submitted that Exhibit E power of attorney did not transfer title to the Appellant.

He proceeded to argue that the Respondent was entitled to judgment on his counterclaim.

In his amended reply brief of argument, the Appellant submitted that the Respondent cannot ask the Court to grant Respondent’s counterclaim on the Appellant’s appeal when he too has appeal No. CA/E/451/2016.

relief even on admission by the defendant. The plaintiff must lead credible evidence before the Court can grant him the declaratory relief he seeks. See Matanmi & Ors v. Dada & Anor (2013) LPELR – 19929 and Anyanru v. Mandilas Ltd (2007)4 SCNJ 285.

Production of documents of title is one of five recognized ways of proving title to land. The Appellant contends that he established title to the land by receipts exhibits B and C. Exhibit B is a receipt purportedly issued by Umuchigbo Iji Nike Community to PW2 for two plots of land. It is dated 3rd January, 1994. However, the PW2 to whom the receipt was purportedly issued in his written statement on oath at page 12 of the record claimed that he purchased the land which the appellant in turn purchased from him in 2002 and Appellant purchased from him in 2006. The PW2 did not explain why he paid for the land in 1994 and was issued a receipt Exhibit B but only bought the land in 2002. This undoubtedly renders the evidence of PW2 unreliable. It is not possible to say on this type of evidence that the PW2 purchased the land in dispute. The Appellant on the evidence of PW2 cannot be said to have

purchased the land in dispute from PW2.

The Appellant led no credible evidence to entitle him to the declaration sought.
Issue 2 is resolved against the Appellant and in favour of the Respondent.

The appeal of the Appellant against the dismissal of his claim is dismissed.

Respondent is awarded N100,000.00 costs to be paid by the Appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead judgment and the record of appeal in this matter and hold the view that, on the trite principle that an action for a declaratory order of title to land, being a discretionary remedy, can only be granted upon proof by evidence.

The Appellant, who seeks to have such a declaration, may rely on a receipt from PW2 as his root of title as an equitable title that could be beefed up to a legal title. The PW2 himself had admittedly bought the land in 2002 from his vendors, Urnuchighbo Nike community; his receipt was however dated 1994, and issued. Appellant was sold the land in 2006 by PW2. The Respondent had bought the land from a corporate vendor from the community since 1978 before the further alienation to the

Appellant. On the whole, the Appellant’s appeal against the refusal to amend his statement of Claim to reflect the document tendered is allowed, and the amended Statement of claim is deemed duly filed and served; but the appeal is dismissed for want of proof of title as sought and upon reliance on the purported purchase receipt of January, 1994 which contradicts the oral evidence of purchase in 2002.

The Appellant’s case as to his root of title vide a purchase is uncertain and does not preponderate. Succeeding as it were only on the strength of his case and without an obligation on the Respondent; the Plaintiff/Appellant had not established his claims as sought.
Appeal is dismissed. I abide and endorse the consequential reliefs granted in the lead Judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, James S. Abiriyi, JCA. I agree with the reasoning contained therein and the conclusion arrived thereat. I join my learned brother in dismissing the appeal as it lacks merit.
I abide with the order as to costs.

Appearances:

C. Nwobodo, Esq. For Appellant(s)

N. Esq. holding brief of Chief Charles C. Ogbo For Respondent(s)