UNION HOMES SAVINGS AND LOAN PLC v OLUMIDE & ORS

UNION HOMES SAVINGS AND LOAN PLC v OLUMIDE & ORS


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 4TH MAY, 2018


Appeal No: CA/L/300/12
CITATION:

Before Their Lordships:

TIJJANI ABUBAKAR, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA


BETWEEN

UNION HOMES SAVINGS AND LOAN PLC

(APPELLANT)

AND

ARINOLA OLUMIDE
THE EXECUTIVE GOVERNOR OF LAGOS STATE
THE ATTORNEY GENERAL OF LAGOS STATE
THE REGISTRAR OF TITLE OF LAGOS STATE

(RESPONDENTS)


PRONOUNCEMENTS


A. EVIDENCE
1. Documentary Evidence –

Whether documentary evidence must be specifically pleaded to be admissible in evidence

“Learned counsel for the Appellant submitted that the lower Court neglected/omitted to consider and evaluate the Deed of Conveyance dated 16th July, 1956, admitted as Exhibit C4B and relied on as proof of title by the Appellant. Relying on the case of MOGAJI Vs. ODOFIN (1978) 4 SC 91; OJO Vs. ADELEKE (2002) 8 NWLR (Pt.763) pg.233; OYEKOLA Vs. AJIBADE (2004) 17 NWLR (Pt.902) pg. 356 at 378; MOHAMMED Vs. ABDULKADIR (Supra) learned counsel submitted that the lower Court also neglected its primary duty as a trial Court to properly scrutinize each title document; give a full and dispassionate consideration, and make findings on all the evidence led at trial, and therefore urged this Court to assume jurisdiction to re-evaluate the documentary evidence adduced before the lower Court to scrutinize the validity of the contrasting title documents. I have carefully considered the Judgment of the trial Court found at pages 193-216 of the Records of appeal and there is very clear disclosure that none of the two witnesses who testified on behalf of the Appellant made mention of the said Deed in their evidence before the trial Court [see page 165-169 of the Record). When the 1st Respondent [CW1) was cross-examined by learned counsel for the Appellant, she was never confronted or challenged with the said Deed (See page 161 of the Record). The documents actually tendered and specifically admitted in evidence by the trial Court were identified and listed with their markings by the Court in its Judgment, but the said Deed registered as 35/35/149, was not one of such documents admitted in evidence by the Court (see page 195 of the Record). That Exhibit C4B tendered in evidence by the 1st Respondent, was a letter from the Appellant’s solicitor to the 1st Respondent’s solicitor having a pile of attached documents which includes “an illegible photocopy of a Deed of Conveyance dated 16th July, 1956 and registered as No. 35/35/149 between Samuel Kehinde George Green and Cyprian Theodosius Adebowale Olumide” [see page 196 of the Record]. In view of the above established facts, it is trite law that documents not pleaded cannot be tendered at trial; neither will a reference in a pleaded document to another document not pleaded crystallize into the admissibility of a document that is not pleaded, nor is it open to any Court to act on such document that is not pleaded, because parties are bound by their pleadings. See: OYEDIRAN Vs. ALEBIOSU II (1992) 6 NWLR (Pt.249) 550 at pg.557 and LAWAL Vs. G.B. OLLIVANT (1992) 1 ALL NLR 207.

On the purpose and importance of pleadings, I refer to the decision in ODOM & ORS. V. PDP & ORS. [2015] 2 M.J.S.C (Pt.1) Pg.1 at Pg. 37 PARAS, A-D, where the Supreme Court held as follows:

“The need for facts in pleadings to be concise and unambiguous cannot be over-emphasized. Pleadings are averred facts numbered in paragraphs which parties rely on to present their case. Their essence is to forestall surprise thrust on the adverse party. The facts in the pleadings, if this element of surprise in litigation is to be avoided, therefore, must be unequivocal.” See also SALAMI V. OKE (1987) 9-11 SC; SODIPO V. LEMMINKAINEN OY (1985) 7 SC; PDP V. INEC & ORS. (2012) 2 SC (Pt.111) Pg.1; OKOLO V. UNION BANK (2004) 1 SC (Pt.1) Pg.1; ALHASSAN & ANOR. V. ISHAKU & ORS. [2016] 2-3 M.J.S.C Pg.1 at pg.21 Paras. E-G; ADESANYA V. ADERONMU (2000) 9 NWLR (Pt.672) P.370; ECHI V. NNAMANI (2000) 8 NWLR (Pt.667) p.1; OGBOGU V. UGWUEGBU (2003) 10 NWLR (Pt.827) P.189 and MAKINDE V. AKINWALE (2000) 2 NWLR (PT.645) Pg.435.

Also where facts are pleaded in Court processes and not supported by credible evidence, such facts go to no issue. See: OMISORE & ANOR. Vs. AREGBESOLA & ORS. [2015] 6-7 M.J.S.C. Pg.1 Pg. 62-63 Paras. G-B where the Court held that “Averments in pleadings [no matter their eloquent phraseology] do not, speak for the pleader without supporting evidence unless the adversary admits them”. See also CHIME Vs. CHIME (2001) 3 NWLR (Pt.701) 527; U.B.N LTD. Vs. JIMBA (2001) 12 NWLR (Pt.727) 505; GAMBORUMA Vs. BORNU (1997) 3 NWLR (Pt.495) 530; YOKTOR vs. GOVERNOR OF PLATEAU STATE (1997) 4 NWLR (Pt.498) 216; ADELOYE vs. OLONE MOTORS (NIG.) LTD. (2002) 8 NWLR (Pt.769) 445, 460; SAVANNAH BANK LTD. Vs. PAN ATLANTIC (1987) 1 NWLR (Pt.49) 212; DUROSARO Vs. AYORINDE (2005) 21 NSCQR 701, 718 and IFETA Vs. SPDC (NIG.) LTD (2006) 8 NWLR (Pt.983) 585. In view of the aforesaid therefore, it is my view that the grudge held by the Appellant in this case, that the lower Court neglected/omitted to consider and evaluate the Deed of Conveyance dated 16th July, 1956, purportedly admitted under Exhibit C4B and relied on as proof of title by the Appellant, is misconceived and unfounded, as the Appellant never tendered in evidence any document at the trial Court, neither was any such document pleaded in its Statement of Defense, nor in the testimony of its witnesses before the trial Court.”Per ABUBAKAR, J.C.A. read in context

2. Evaluation of Evidence – Duty of the trial Court to evaluate evidence

Duty of the trial Court as regards perception, evaluation and findings of fact; the duty of an appellate court therein in a case of failure

“It is within the province of the trial Court to evaluate evidence and ascribe probative value to same. The Court of Appeal and the Supreme Court will only interfere where the Court or tribunal fails to discharge that duty and the failure has occasioned miscarriage of justice, or the conclusion reached by the lower Court is altogether perverse having regard to the evidence. See MAKU Vs. AL-MAKURA & ORS. [2016] 1 M.J.S.C (Pt.II) Pg.117 at Pg. 133 Paras B-C.; MAKINDE Vs. AKINWALE (2000) NWLR (Pt.645) and IHEKORONYE Vs. HART (2000) 15 NWLR (Pt.692) 840. Where there is proper and unquestionable evaluation of evidence by the lower Court, the Court of appeal has no business interfering with the conclusion reached by the lower Court. The Supreme Court of Nigeria in ABOKOKUYANRO Vs. STATE [2016] 2-3 M.J.S.C Pg.106 at Pg.127 Paras. D-F, held as follows:

“The appellate Court will not generally interfere with the concurrent finding of the lower Courts unless it is perverse, not supported by evidence and has led to miscarriage of justice or where any principle of law or procedure have not been followed or complied with” See also: IBRAHIM Vs. STATE [2015] S.C (Pt.II) Pg.85, AYENI Vs. STATE [2016] 2-3 M.J.S.C. P.76 at Pg.90 Paras. A-C; OLEKSANDR & ORS. Vs. LONESTAR DRILLING CO. LTD. & ANOR. [2015] 4 M.J.S.C Pg.1 at Pg.37 Paras B-E; ABOSELDEHYDE LABORATORIES PLC Vs. UNION MERCHANT BANK LTD. & ANOR. (2013) 13 NWLR (Pt.1370) 91; OJUKWU Vs. OBASANJO (2004) 12 NWLR (Pt.886) 169 At Pg.214; NASIRU V. C.O.P (1980) 1-2 SC 61 and SALEH Vs. B.O.N. LTD. (2006) 6 NWLR (Pt.976) 316.

Authorities on this point have emphasized the need to refrain from interfering with the decision of the lower Court where there is no patent misapprehension of the facts on the part of the trial Court, see:NYESOM Vs. PETERSIDE & ORS. (2016) 2 M.J.S.C. (Pt.1) Pg182-183 Paras. F-A, where the Supreme Court of Nigeria also held as follows:

“There is no doubt that the evaluation of evidence and ascription of probative value thereto are the primary duties of the trial Court, which had the singular opportunity of seeing and hearing the witnesses testify and an appellate Court would ordinarily not interfere. It is also trite that this Court will not interfere with concurrent findings of fact by two lower Courts unless it is shown that the findings are perverse, or not based on a proper and dispassionate appraisal of the evidence, or that there is an error either of law or fact, which has occasioned a miscarriage of justice.”

See also: OGOALA Vs. THE STATE (1991) 2 NWLR (Pt.175) 509; SALEH V. B.O.N. LTD. (2006) 6 NWLR (Pt.976) 316 AT 329-330 PARAS. H-C; AGBAJE Vs. FASHOLA (2008) 6 NWLR (PT.1082) 90 and OGUNDALU V. MACJOB (2015) 3 M.J.S.C.(Pt.1) Pg.78 at Pg.107 Para. G.
In my humble understanding, the learned trial judge properly evaluated and appraised the evidence led at the trial, he conducted unquestionable evaluation and this Court has no business interfering with the findings.”Per ABUBAKAR, J.C.A. read in context

3. Standard of Proof –

Standard of proof in civil cases

“It is a loud position of law that cases are won and lost on the evidence presented by parties before the Court. Where in civil cases, as in the instant one where the standard of proof is on balance of probabilities, the plaintiff present sufficient evidence, satisfactory to support his case, the Court will readily decide the dispute in his favour. See Section 134 of the Evidence Act, 2011; INTERDRILL (NIG) LTD & ANOR V. UBA PLC (2017) – 41907 (SC); WOLUCHEM V. GUDI (1982) LPELR – 3501 (SC); SULEIMAN V. JIMBASH NIGERIA LTD & ANOR (2014) LPELR – 24615 (CA).”Per OBASEKI-ADEJUMO, J.C.A. read in context

B. PRACTICE AND PROCEDURE
4. Signing Of Court Processes – Impact of an improperly signed statement of claim

Effect of an improperly signed statement of claim

“The issue to resolve here is narrow, Appellant’s contention is just that the amended statement of claim dated 26th October 2006 filed by the 1st Respondent found at pages 108-111 of the records of appeal was signed by “ALADE AGBABIAKA & CO”. Learned Counsel therefore contended that the process, which the lower Court concreted its decision is faulty, defective and incompetent and therefore must be set aside. Learned Counsel for the 1st Respondent in what appears to be desperate attempt to save the life of the suit urged upon us to jettison the controversial amended statement of claim dated 26th October 2006 and revert to the one dated 5th April 2005. Do we have the power to do so? At page 193 of the records of appeal the learned trial Judge started the Judgment in the following words and I quote: “By an amended statement of claim dated 26th October 2006, the Claimant claims against the 1st-4th as follows.” It is obvious the learned trial judge concreted his decision on the amended statement of claim, I think at this stage changing the rules of the game by pulling the controversial amended statement of claim out and replacing it with the one of 5th April 2005 is totally wrong, unjust and not permissible, we cannot do so. The 1st Respondent is stuck with the amended statement of claim of 26th October 2006, they must swim or sink together, however, I think the good news for the 1st Respondent is that there is recent modification to the Rules in OKAFOR Vs. NWEKE. The 1st Respondent will not in the instant case sink with the amended statement of claim. I refer to the recent decision of the Supreme Court in HERITAGE BANK LIMITED Vs. BENTWORTH FINANCE (NIG) LIMITED, SC.175/2005 DELIVERED ON THE 23RD DAY OF FEBRUARY 2018, the Supreme Court per EKO JSC, held as follows: “The facts of this case, particularly on this objection are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of legal practitioners, the Appellant as the defendant condoned the defective process. They participated in the proceedings and the evidence arising from the statement of claim was called after the statement of claim was filed. Judgment of the trial Court based on the evidence elicited from the statement of claim was delivered without objection. Even at the Court of Appeal no issue was made of the alleged defective statement of claim. The Appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to the defective process. The right of the defense to object to the irregularity ex facie the statement of claim is a waivable right, being a private right. A.G. KWARA & ANOR Vs. ADEYEMO (Supra), ARIORI Vs. ELEMO (1983) 1 SC 13. This issue, accordingly cannot be resolved for the Appellant. The instant case is similar to the above instance, the Appellant took active part in generating evidence from the defective process, judgment was eventually delivered, I will take it that the Appellant has voluntarily and willfully condoned the proceedings and therefore waived its right to challenge the amended statement of claim.”Per ABUBAKAR, J.C.A. read in context

5. Signing Of Court Processes – Impact of an improperly signed statement of claim

Effect of an improperly signed statement of claim

“Without a doubt, the Amended Statement of Claim was signed in the name of a Law Firm. This makes the Amended Statement of Claim defective and irregular. But the Amended Statement of Claim is not the Originating Process for the action. The Appellant fully participated in the trial conducted based on the said defective and irregular Amended Statement of Claim. It did not object. Consequently it had condoned the defective and irregular Amended Statement of Claim and waived its right to object, such that it can no longer successfully contend the issue on appeal. See APPEAL No. SC.175/2005: HERITAGE BANK LTD vs. BENTWORTH FINANCE (NIGERIA) LTD (unreported) delivered on 23rd February 2018. Let me hasten to add that I am aware of the decision of the apex Court in HAMZAT vs. SANNI (2015) LPELR (24302) where a Statement of Claim which was signed in a firm name was held not to be a valid Statement of Claim and the action was struck out on that basis. There is a diametrical difference in the decisions of the apex Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra) and HAMZAT vs. SANNI (supra). The decision inHAMZAT vs. SANNI (supra) which was earlier in time was not brought to the attention of the Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra). Howbeit, HAMZAT vs. SANNI was decided on 30th January 2015 while HERITAGE BANK vs. BENTWORTH FINANCE was decided on 23rd February 2018. By the legal jurisprudential rule of posterior construction, the decision in HERITAGE BANK vs. BENTWORTH FINANCE (supra) being later in time is to be preferred:CARDOSO vs. DANIEL (1986) 2 NWLR (PT.20) 1 at 38-39, SERIKI vs. SOLARU (1965) NMLR 1 and IKEAKWU vs. NWANKPA (1967) NMLR 224. Accordingly, the lower Court was right to have utilized the irregular Amended Statement of Claim and the evidence adduced thereon since the Appellant had condoned and waived its right to complain about the irregularity.”Per OGAKWU, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY ABUBAKAR, JCA.


This appeal is against the Judgment of the High Court of Lagos State sitting in the Lagos Judicial Division delivered by OJIKUTU- OSHODE J, on the 9th day of February, 2012 in Suit No: LD/1479/2004.

The 1st Respondent in this appeal as Claimant at the Court below initiated this suit against the Appellant and three other Defendants by Writ of Summons filed on the 21st day of July 2004 found at pages 1-2 and 29-73, of the Records of Appeal, and another filed on the 11th day of April, 2005 found at pages 88-96 of the Records of Appeal, with amended Statement of Claim dated 26th day of October 2006 but filed on the 30th day of October 2006 found at pages 108-153 of the Records of Appeal.

The parties in this appeal filed and exchanged Pleadings, trial was conducted, and at the end of trial parties filed their respective final addresses. The lower Court delivered its judgment found at pages 193-216 of the Records of Appeal on the 9th day of February 2012 wherein the lower Court gave judgment in favor of the 1st Respondent. The Appellant herein became nettled by the decision of the lower Court and therefore filed an Amended Notice of Appeal on the 20th day of May, 2016 containing nine grounds of appeal.

The Appellant’s Amended Brief of Argument was filed by learned counsel Adekunle Osibogun on the 20th day of May 2016. The Appellant’s counsel also filed a Reply Brief on the 22nd of February 2017. On the other hand, the 1st Respondent’s Amended Brief was filed by learned counsel, Hazeezat Okusaga on the 30th day of January 2017.

Learned counsel for the Appellant formulated three issues for determination in this appeal, the Appellant’s issues for determination are reproduced as follows:

1. Whether the Amended Statement of Claim dated October 26, 2006, was competent before the Court (Ground 1).

2. Whether the learned trial judge properly evaluated and appraised the evidence led in support of the pleadings filed by the Parties (Grounds 2, 3, 4, 9).

3. Whether the 1st Respondent had discharged the evidential burden of proof to warrant the award of damages (Grounds 5, 6, 7, 8, 9).

Learned counsel for the 1st Respondent also formulated three issues for determination, the issues are reproduced as follows:

1. Whether the entire suit before the lower Court amounts to a nullity.
2. Did the learned trial judge fail to evaluate the evidence, or is her finding that the Claimant had established her title to the land in dispute in line with the principles enunciated in Idundun v. Okumagba, impeachable?

3. Whether the award of damages in favor of the Claimant was justified.

SUBMISSIONS OF COUNSEL ON ISSUE ONE.

Submitting on the first issue for determination “Whether the Amended Statement of Claim dated October 26, 2006, was competent before the Court”, learned counsel for the Appellant submitted that the lower Court in delivering its judgment on February 9, 2012, relied heavily on the pleadings and claims contained in the Amended Statement of Claim dated October 26, 2006 [referring the Court to pages 108-111, and 193 of the Records of Appeal), but that the said Amended Statement of Claim was signed by a person other than a legal practitioner or the litigant and that it legally renders the Court process invalid and incompetent . Learned counsel relied on SLB CONSORTIUM Vs. NNPC (2001) 9 NWLR (Pt.1252) pg.317 and KWARA INVESTMENT CO. LTD Vs. GARBA (2000) 10 NWLR (Pt.674) pg, 25 at pg.39 Para. G to further submit that once a signatory to a Court process is unidentifiable or unascertainable, that is to say the process is not signed by a legal practitioner or the litigant, the process is incurably bad, invalid, incompetent and of no value in the proceedings. Learned Counsel further relied on MADUKOLU Vs. NKEMDILIM (1962) ALL NLR (PT.4) pg. 587 to submit that the proceedings before the lower Court were not competent because the 1st Respondent failed to fulfill a vital condition precedent to the exercise by the lower Court of its jurisdiction [referring to page 108-111 of the Records of appeal).

Learned Counsel submitted that the amended Statement of Claim dated October 26, 2006 which was relied on by the learned trial judge was not signed by the litigant or its legal practitioner. Learned Counsel said the amended statement of claim dated 26th October 2006 was signed by “Alade Agbabiaka & Co. (Claimant/Applicant’s Counsel) 25, Sinari Daranijo Street Victoria Island Annex, Lagos”, Learned Counsel for the Appellant urged this Court to hold that the amended statement of claim is invalid, incompetent and of no value to the proceedings giving rise to the judgment of the lower Court.

Learned Counsel further referred this Court to the decisions in OLAGBENRO Vs. OLAYIWOLA (2014) 17 NWLR (Pt.1436) at pg.313; OYAMA & ANOR Vs. AGBIJI & ORS. (2012) LPELR-CA/C/NAEA/285/2011; OLUWATUYI Vs. OWOJUYIGBE (2014) LPELR-CA/B/212/2005; KARIMU Vs. LAGOS STATE GOVERNMENT (2012) 5 NWLR (Pt.1294) at pg.620; Section 2(1) & Section 24 of the Legal Practitioners Act Cap. 2007 LFN 2010; Order 15 Rule 2 of the High Court of Lagos (Civil Procedure) Rules 2012; FBN PLC Vs. TSA INDUSTRIES LTD (2010) 15 NWLR (Pt.1216) at pg. 247; SO ANKE VS. SOMEFUN (1974) ALL NLR (Pt.1) pg.141; UNIVERSITY OF LAGOS Vs. AIGORO (1985) 1 NWLR (Pt.1) at pg.143. OLANIYI Vs. ELERO (2007) 34 WRN; YUSUF Vs. ADEGOKE (2007) 11 NWLR (Pt. 1045) pg. 332 and G.U.O OKEKE & SONS LTD Vs. USIFOR (2008) 1 ALL FWLR pg.280.

Learned Counsel urged this Court to hold that the lower Court had no jurisdiction to hear and determine the claim on the strength of a defective and incompetent amended statement of claim.

Learned Counsel for the 1st Respondent formulated a corresponding issue for determination in answer to Appellants issue number one. In response learned Counsel for the 1st Respondent while submitting on 1st Respondent’s issue number one referred to DR. TUNJI BRAITHWAITE Vs. SKYE BANK PLC (2012) LPELR – 15532 (SC) at 23; CHIJOKE AZUBUIKE Vs. ALHAJI AHMAD HASSAN (2014) LPELR-23442 (CA) and Order 3 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 to submit that while it concedes that the Amended Statement of Claim dated 26th October 2006 filed by “Alade Agbabiaka & Co” is incompetent, the incompetence of that defective process alone, is not sufficient to render the entire proceedings before the Lower Court a nullity.

Learned Counsel said the Writ of summons is the originating process by which actions are commenced in Court. Learned Counsel said the competence of the writ is a pre-requisite for a valid claim, that it is the Writ of Summons and not the statement of claim and other pleadings that activate the jurisdiction of the Court, learned counsel said it is when the Writ of summons is invalid as a result of failure to properly sign it that all subsequent processes in the suit and any proceedings are rendered a nullity, learned Counsel for the 1st Respondent said the same will not apply if the Statement of Claim were to suffer from the same defect; that in such circumstance it is that Statement of Claim alone that is rendered invalid, and that neither the Writ of Summons nor other processes duly signed and issued in the suit will be affected; that the defective Court process will only affect the entire suit and make it liable to be struck out if it is the originating process, such as the Writ of Summons.

Learned counsel submitted further that prior to the defective Statement of Claim dated 26th October 2006, there was a subsisting Amended Statement of Claim before the Court dated the 5th of April, 2005, and that in the event of the invalidation of the October 26, 2006 Statement of Claim, the earlier subsisting Amended Statement of Claim dated 5th April 2005. Learned Counsel for the 1st Respondent therefore urged this Court to resolve this issue in favor of the Respondent against the Appellant.

Appellant filed reply brief substantially rearguing the submissions made by learned Counsel for the Appellant in the Appellants brief.

RESOLUTION OF ISSUE ONE

The issue to resolve here is narrow, Appellant’s contention is just that the amended statement of claim dated 26th October 2006 filed by the 1st Respondent found at pages 108-111 of the records of appeal was signed by “ALADE AGBABIAKA & CO”. Learned Counsel therefore contended that the process, which the lower Court concreted its decision is faulty, defective and incompetent and therefore must be set aside.

Learned Counsel for the 1st Respondent in what appears to be desperate attempt to save the life of the suit urged upon us to jettison the controversial amended statement of claim dated 26th October 2006 and revert to the one dated 5th April 2005. Do we have the power to do so? At page 193 of the records of appeal the learned trial Judge started the Judgment in the following words and I quote: “By an amended statement of claim dated 26th October 2006, the Claimant claims against the 1st-4th as follows.” It is obvious the learned trial judge concreted his decision on the amended statement of claim, I think at this stage changing the rules of the game by pulling the controversial amended statement of claim out and replacing it with the one of 5th April 2005 is totally wrong, unjust and not permissible, we cannot do so. The 1st Respondent is stuck with the amended statement of claim of 26th October 2006, they must swim or sink together, however, I think the good news for the 1st Respondent is that there is recent modification to the Rules in OKAFOR Vs. NWEKE. The 1st Respondent will not in the instant case sink with the amended statement of claim. I refer to the recent decision of the Supreme Court in HERITAGE BANK LIMITED Vs. BENTWORTH FINANCE (NIG) LIMITED, SC.175/2005 DELIVERED ON THE 23RD DAY OF FEBRUARY 2018, the Supreme Court per EKO JSC, held as follows:

“The facts of this case, particularly on this objection are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of legal practitioners, the Appellant as the defendant condoned the defective process. They participated in the proceedings and the evidence arising from the statement of claim was called after the statement of claim was filed. Judgment of the trial Court based on the evidence elicited from the statement of claim was delivered without objection. Even at the Court of Appeal no issue was made of the alleged defective statement of claim. The Appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to the defective process. The right of the defense to object to the irregularity ex facie the statement of claim is a waivable right, being a private right. A.G. KWARA & ANOR Vs. ADEYEMO (Supra), ARIORI Vs. ELEMO (1983) 1 SC 13. This issue, accordingly cannot be resolved for the Appellant.

The instant case is similar to the above instance, the Appellant took active part in generating evidence from the defective process, judgment was eventually delivered, I will take it that the Appellant has voluntarily and willfully condoned the proceedings and therefore waived its right to challenge the amended statement of claim. This issue is therefore resolved in favour of the 1st Respondent against the Appellant.

SUBMISSIONS OF COUNSEL ON ISSUE TWO

On the second issue for determination “Whether the learned trial judge properly evaluated and appraised the evidence led in support of the pleadings filed by the parties”, learned counsel for the Appellant submitted that documents placed before, a trial Court are for the purpose of examination and evaluation, and that it is the duty of the trial judge to ensure that such documents are considered in the interest of justice. Learned counsel relied on the decisions in MOHAMMED Vs. ABDULKADIR (2008) 4 NWLR (Pt.1076) pg.11 at pg.156-167; ODUTOLA Vs. MABOGUNJE (2013) 7 NWLR (Pt.1354) pg.522; EYA Vs. OLOPADE (2011) 5 SC (Pt.11) pg.37; CPC Vs. INEC (2011) 12 SC pg.80; EYO Vs. ONUOHA (2011) 2-3 SC (Pt.1) pg.20 and AYUYA Vs. YONRIN (2011) 4 SC (Pt.11) pg.1, to further submit that documentary evidence must be evaluated, and that in the course of evaluation, the trial judge is expected to closely examine the document and comment or act on the evidence; and where a trial Judge fails to properly evaluate documentary evidence, the appellate Court is vested with the power to do so.

Learned counsel submitted that the lower Court in its judgment delivered on the 9th day of February 2012, listed documentary evidence tendered through the Claimant’s/1st Respondent’s 1st witness, and admitted as exhibits. Learned Counsel said the lower Court erroneously held that the Appellant as 1st Defendant did not tender any document as evidence to prove that the property in dispute belongs to the Appellant.

Learned counsel further submitted that amongst the bundle of letters admitted as Exhibit C4A was the 1st Respondent’s Solicitor’s letter to the Appellant dated May 26, 2004 wherein the 1st Respondent’s Solicitor narrowed the dispute between the parties to the contention over the validity of the two separate and duly registered title documents over the same piece of land found at page 123 of the Records of Appeal. Learned Counsel for the Appellant submitted that upon the admission of the documents in evidence, the lower Court had a duty to closely examine the two conflicting documents and comment on each relying on the decisions in ANPP Vs. NAALLAH (2008) PELR-CA/K/EP/NA/57/07, TANGLE TRADITIONAL COUNCIL Vs. FAWU (2001) 17 NWLR (Pt.74 ) 93, MOHAMMED Vs. ABDULKADIR (2007) 4 WRN 104, OMEGA BANK NIG. PLC Vs. OBC LTD (2002) 16 NWLR (Pt.794) at pg. 483.

Learned counsel also referred this Court to the Judgment of the lower Court particularly at pages 309-310 of the Records of Appeal to submit that exhibit C2 relied on by the lower Court was neither a title document in the name of the 1st Respondent nor evidence of sale or assignment. Learned Counsel submitted that the 1st Respondent failed to provide valid legal instrument establishing ownership of the Land in dispute, learned counsel relied on the case ofKAIYAOJA Vs. EGUNLA (1974) 12 SC 49 and IDUNDUN Vs. OKUMAGBA (1976) 9-10 SC 227 at pg. 246-250 to submit that the onus of proof in claim for declaration of title is on the claimant and that there was no evidence before the lower Court to establish title to the Land in dispute in favour of the 1st Respondent, and that the lower Court erred in law and the error occasioned a miscarriage of justice when it relied on the principle in IDUNDUN Vs. OKUMAGBA [Supra] to grant the 1st Respondent declaratory title over the land in dispute.

On reliance on Yoruba Native Law and Custom by the 1st Respondent to establish that title in the land in dispute devolved on her as personal representative of her parents upon their demise, learned counsel submitted that the proof of native law and custom is a question of fact which is necessary to be pleaded unless same is judicially noticed, and that the onus is on party who claims the existence and applicability of a particular customary law to call evidence to establish the custom. Relying on the case of AJERO Vs. UGORJI (1999) 10 NWLR (Pt.621) p.1; TEMILE Vs. AWANI (2001) 12 NWLR (Pt.728) pg.726 and ABOLARIN Vs. OGUNDELE (2011) LPELR-3570. learned counsel submitted that fact of Yoruba Native Law and Custom pleaded by the 1st Respondent in support of her claim to a declaration of title to the Land in dispute was neither established by credible evidence or any evidence at all, nor was there any judicial notice relied upon by the lower Court in granting the 1st Respondent a declaration of title to the Land in dispute, and that averments in the 1st Respondent’s pleadings not supported by evidence is deemed to be abandoned and must therefore be disregarded.

Responding to the submissions of learned Counsel for the Appellant, learned Counsel for the 1st Respondent said the learned trial judge did not in any way fail in his duty of evaluation, and that he diligently and properly evaluated the evidence placed before him. He submitted that the Appellant accepted and conceded in paragraphs 4.21 at page 14 of the Appellant’s brief that “the lower Court considered, evaluated and acted on the Deed of Conveyance dated 16th July, 1959 admitted as Exhibit C2 and relied on by the 1st Respondent as proof of title”.

Learned Counsel for the 1st Respondent said the grievance of the Appellant is the lower Court failed to give effect to an “illegible photocopy of a Deed of Conveyance dated 16th July, 1956, registered as No. 35/35/149 between Samuel Kehinde George Green and Cyprian Theodosius Adebowale Olumide”- a document which the Appellant as 1st Defendant before the trial Court never pleaded, and which was never tendered or admitted in evidence as a separate and distinct document.

Learned counsel submitted further that nowhere in any of the processes filed by the Appellant at the trial Court (including their statement of defense and deposition of witnesses on oath) was any reference made to the Deed registered as No.35/35/149 now being referred to by the Appellant and that no list of documents to be relied on was filed by the Appellant as 1st Defendant before the trial Court, neither was there any document attached to the Appellant’s processes before the trial Court. Learned c o u n s e l u r g e d t h a t n e i t h e r o f t h e t w o 1 s t Defendant/Appellant’s witnesses who testified on its behalf made mention of the said Deed in their evidence before the Court, nor was the 1st Respondent confronted or challenged about the existence of such Deed when cross- examined by the Appellant’s counsel; that the Appellant did not in any of its processes in the Court below or at any stage of the trial proceedings, make any contention in relation to the said Deed nor did it seek the court’s pronouncement on its legal effect. Learned counsel submitted that the documents actually tendered and specifically admitted in evidence were identified and listed with their markings by the lower Court in its judgment and the Deed now under reference is not one of the documents listed.

On whether the trial Court erred in finding that the 1st Respondent had established her title in line with the principles established in the case of IDUNDUN VS. OKUMAGBA, learned counsel drew the attention of this Court to pages 210-211 of the Record to submit that Exhibit C2- Deed of Conveyance dated 16th July, 1959 produced by the 1st Respondent as evidence of her root of title, was never queried or challenged by the Appellant, the said exhibit therefore stands credible and reliable.

On the link between the 1st Respondent and the documents of title relied upon by her, and whether the ownership interest of her parents in the disputed land had devolved to her under Yoruba Native law and custom, learned counsel relied on the judgment of the lower Court particularly at Pages 209-210 of the Records of appeal, to submit that while the 1st Respondent’s father (Revd. Adeyinka Olumide) died intestate, her mother [Mrs. Olumide] made a Will admitted as Exhibit C5 and C6, and in the said Will expressly bequeathed to her two children “MISS
ARINOLA OLUMIDE and MISS AYODEJI OLUMIDE in equal shares all I possess at the time of my death both real and personal properties” that Mrs. Olumide’s acknowledged interest in the property in dispute must form part of her real estate which devolved to her two daughters.

Learned counsel therefore relied on the case of LAYINKA Vs. GEGELE (1993) 3 NWLR (Pt.283) at pg, 521; OJUKWU Vs. KAINE (1997) 9 NWLR (Pt.522) at pg.613; UDO Vs. WILLIAMS (1997) 1 NWLR [Pt.483] at pg.548, to submit that any member of a family especially the head, has the right to bring an action to protect family property; that this action was instituted by the 1st Respondent for herself and on behalf of the joint estates of her parents.

Further relying on Section 122 of the Evidence Act 2011 and the case of YUSUF Vs. DADA (1990) 4 NWLR (Pt.146) 657 at pg.669-670, learned counsel submitted that devolution of the estate of Rev. & Mrs. Olumide to the 1st Respondent and her sister under Yoruba Native law and custom is judicially noticed and needs no special proof and that as the 1st Respondent is not only a beneficiary, but is also possessed of the untrammeled right as head of the family to act to protect family property, her connection to the land in dispute is unquestionable. Learned counsel therefore urge this Court to resolve this issue against the Appellant and hold that the findings by the learned trial Judge that the 1st Respondent who produced valid documents of title in support of the claim (as against the Appellant who produced no document or any other proof of title at all) had met the requirements of the principles established in the case of IDUNDUN Vs. OKUMAGBA, is correct and unassailable.

RESOLUTION OF ISSUE TWO

Learned counsel for the Appellant submitted that the lower Court neglected/omitted to consider and evaluate the Deed of Conveyance dated 16th July, 1956, admitted as Exhibit C4B and relied on as proof of title by the Appellant. Relying on the case of MOGAJI Vs. ODOFIN (1978) 4 SC 91; OJO Vs. ADELEKE (2002) 8 NWLR (Pt.763) pg.233; OYEKOLA Vs. AJIBADE (2004) 17 NWLR (Pt.902) pg. 356 at 378; MOHAMMED Vs. ABDULKADIR (Supra) I have carefully considered the Judgment of the trial Court found at pages 193-216 of the Records of appeal and there is very clear disclosure that none of the two witnesses who learned counsel submitted that the lower Court also neglected its primary duty as a trial Court to properly scrutinize each title document; give a full and dispassionate consideration, and make findings on all the evidence led at trial, and therefore urged this Court to assume jurisdiction to re-evaluate the documentary evidence adduced before the lower Court to scrutinize the validity of the contrasting title documents. testified on behalf of the Appellant made mention of the said Deed in their evidence before the trial Court [see page 165-169 of the Record). When the 1st Respondent [CW1) was cross-examined by learned counsel for the Appellant, she was never confronted or challenged with the said Deed (See page 161 of the Record). The documents actually tendered and specifically admitted in evidence by the trial Court were identified and listed with their markings by the Court in its Judgment, but the said Deed registered as 35/35/149, was not one of such documents admitted in evidence by the Court (see page 195 of the Record). That Exhibit C4B tendered in evidence by the 1st Respondent, was a letter from the Appellant’s solicitor to the 1st Respondent’s solicitor having a pile of attached documents which includes “an illegible photocopy of a Deed of Conveyance dated 16th July, 1956 and registered as No. 35/35/149 between Samuel Kehinde George Green and Cyprian Theodosius Adebowale Olumide” [see page 196 of the Record].

In view of the above established facts, it is trite law that documents not pleaded cannot be tendered at trial; neither will a reference in a pleaded document to another document not pleaded crystallize into the admissibility of a document that is not pleaded, nor is it open to any Court to act on such document that is not pleaded, because parties are bound by their pleadings. See: OYEDIRAN Vs. ALEBIOSU II (1992) 6 NWLR (Pt.249) 550 at pg.557 and LAWAL Vs. G.B. OLLIVANT (1992) 1 ALL NLR 207.

On the purpose and importance of pleadings, I refer to the decision in ODOM & ORS. V. PDP & ORS. [2015] 2 M.J.S.C (Pt.1) Pg.1 at Pg. 37 PARAS, A-D, where the Supreme Court held as follows:

“The need for facts in pleadings to be concise and unambiguous cannot be over-emphasized. Pleadings are averred facts numbered in paragraphs which parties rely on to present their case. Their essence is to forestall surprise thrust on the adverse party. The facts in the pleadings, if this element of surprise in litigation is to be avoided, therefore, must be unequivocal.”

See alsoSALAMI V. OKE (1987) 9-11 SC; SODIPO V. LEMMINKAINEN OY (1985) 7 SC; PDP V. INEC & ORS. (2012) 2 SC (Pt.111) Pg.1; OKOLO V. UNION BANK (2004) 1 SC (Pt.1) Pg.1; ALHASSAN & ANOR. V. ISHAKU & ORS. [2016] 2-3 M.J.S.C Pg.1 at pg.21 Paras. E-G; ADESANYA V. ADERONMU (2000) 9 NWLR (Pt.672) P.370; ECHI V. NNAMANI (2000) 8 NWLR (Pt.667) p.1; OGBOGU V. UGWUEGBU (2003) 10 NWLR (Pt.827) P.189 and MAKINDE V. AKINWALE (2000) 2 NWLR (PT.645) Pg.435.

Also where facts are pleaded in Court processes and not supported by credible evidence, such facts go to no issue. See: OMISORE & ANOR. Vs. AREGBESOLA & ORS. [2015] 6-7 M.J.S.C. Pg.1 Pg. 62-63 Paras. G-B where the Court held that “Averments in pleadings [no matter their eloquent phraseology] do not, speak for the pleader without supporting evidence unless the adversary admits them”. See also CHIME Vs. CHIME (2001) 3 NWLR (Pt.701) 527; U.B.N LTD. Vs. JIMBA (2001) 12 NWLR (Pt.727) 505; GAMBORUMA Vs. BORNU (1997) 3 NWLR (Pt.495) 530; YOKTOR vs. GOVERNOR OF P ATEAU STATE (1997) 4 NWLR (Pt.498) 2 6; ADELOYE vs. OLONE MOTORS (NIG.) LTD. ( 0 2) 8 NWLR (Pt.769) 445, 460; SAVANNAH BANK LTD. Vs. PAN ATLANTIC (1987) 1 NWLR (Pt.49) 212; DUROSARO Vs. AYORINDE (2005) 21 NSCQR 701, 718 and IFETA Vs. SPDC (NIG.) LTD (2006) 8 NWLR (Pt.983) 585.

In view of the aforesaid therefore, it is my view that the grudge held by the Appellant in this case, that the lower Court neglected/omitted to consider and evaluate the Deed of Conveyance dated 16th July, 1956, purportedly admitted under Exhibit C4B and relied on as proof of title by the Appellant, is misconceived and unfounded, as the Appellant never tendered in evidence any document at the trial Court, neither was any such document pleaded in its Statement of Defense, nor in the testimony of its witnesses before the trial Court.

Another component of the Appellant’s grievance against the findings of the trial Court for the 1st Respondent is that the Court erred in holding that the 1st Respondent has established her title to the land in dispute in line with the principles established in IDUNDUN VS. OKUMAGBA.

Let me refer to the judgment of the lower Court found at pages 209-210 of the records of Appeal, the lower Court held as follows:

“It is clear from the totality of both oral and documentary evidence before the Court that Exhibits C2, C3, C5, C6 namely:

a. Production of title documents, the registered conveyance in respect of the land clearly shows that the owners are Rev. Adeyinka Olumide and Mrs. Olubusola Olumide, the Claimant’s parents and predecessors in title.

b. Uncontradicted evidence of CW1 that both her parents are late, and that she and her sister are the only surviving children and beneficiaries of her late parents estate.

c. The Will and Probate of the Claimant’s late mother was tendered in evidence before the Court. Exhibit C5 and C6.

d. Producing and tendering of the approved Building Plan under construction Exhibit C3.

Heavily relied upon by the Claimant which incidentally are not denied by the 1st Defendant conferred title of the land in dispute to the Claimant. By those documents the Claimant’s claim is Substantiate and acceptable.”

The learned trial judge in evaluating the evidence generated at the trial found at pages 210-211 of the records of appeal held as follows:

“The Claimant has produced before the Court documents of title to substantiate her alleged title/claim to the disputed land…the Claimant has successfully produced documents of title to the land in dispute where it mattered most. There is document of title produced by the Claimant in line with the principles laid down in IDUNDUN & ORS V. OKUMAGBA (1976) (supra) as to have established title to the land in dispute in favour of the Claimant.

On that ground alone the Claimant’s action is acceptable on merit and is entitled to succeed.”

Further at page 211 of the records, in the course of evaluating the evidence the learned trial Judge went further to hold as follows:

“It is quite clear that the Claimant by tendering Exhibits C2, C3, CS and C6 has been able to show the Court that the property in dispute has been in exclusive possession of her late parents since 1959. The 1st Defendant also asserts likewise and that they purchased the land in dispute from Cyprian Theodosius Adebowale Olumide in 2001, contrary to the evidence before the Court that the said Cyprian Theodosius Olumide died in 1970 and the evidence of DW1 under cross-examination that the 1st Defendant was not even incorporated at the time they purportedly purchased the property in dispute…………

I have already stated that DW1 and DW2 are economic with the truth……….The 1st Defendant failed, neglected or refused to call any evidence or tender any documents in rebuttal to the Claimant’s evidence, Their assignor was a man who died in 1970 and when he purportedly sold the land to the 1st Defendant in 2007 he had been dead for 31 years.”

The learned trial Judge who had the opportunity to see, hear and observe the demeanor of the witnesses in Court at page 212 of the records also said as follows;

“Furthermore, the oral evidence of DW1 and DW2 appeared confused and unreliable. DW1 and DW2 contradicted one another. In actual fact the defense presented by the 1st Defendant is nothing but a sham, and it is laughable…….It is indeed preposterous…for a whole Bank to present a security man DW1 as a star witness in a land matter. DW1 admitted under cross-examination that he does not know anything about all the material evidence he gave; that he does not know what “searches” mean, and that the Bank engaged the services of a lawyer, but he did not see the lawyers search report and neither was any Solicitors search report tendered by the 1st Defendant.”

In view of the above extracts from the records of the lower Court particularly from the judgment appealed against, I am of the view that it will be preposterous and outlandish to contend that there was improper evaluation of evidence at the Court below. It is within the province of the trial Court to evaluate evidence and ascribe probative value to same. The Court of Appeal and the Supreme Court will only interfere where the Court or tribunal fails to discharge that duty and the failure has occasioned miscarriage of justice, or the conclusion reached by the lower Court is altogether perverse having regard to the evidence. See MAKU Vs. AL-MAKURA & ORS. [2016] 1 M.J.S.C (Pt.II) Pg.117 at Pg. 133 Paras B-C.; MAKINDE Vs. AKINWALE (2000) NWLR (Pt.645) and IHEKORONYE Vs. HART (2000) 15 NWLR (Pt.692) 840. Where there is proper and unquestionable evaluation of evidence by the lower Court, the Court of appeal has no business interfering with the conclusion reached by the lower Court. The Supreme Court of Nigeria in ABOKOKUYANRO Vs. STATE [2016] 2-3 M.J.S.C Pg.106 at Pg.127 Paras. D-F, held as follows:

“The appellate Court will not generally interfere with the concurrent finding of the lower Courts unless it is perverse, not supported by evidence and has led to miscarriage of justice or where any principle of law or procedure have not been followed or complied with”

See also: IBRAHIM Vs. STATE [2015] S.C (Pt.II) Pg.85, AYENI Vs. STATE [2016] 2-3 M.J.S.C. P.76 at Pg.90 Paras. A-C; OLEKSANDR & ORS. Vs. LONESTAR DRILLING CO. LTD. & ANOR. [2015] 4 M.J.S.C Pg.1 at Pg.37 Paras B-E; ABOSELDEHYDE LABORATORIES PLC Vs. UNION MERCHANT BANK LTD. & ANOR. (2013) 13 NWLR (Pt.1370) 91; OJUKWU Vs. OBASANJO (2004) 12 NWLR (Pt.886) 169 At Pg.214; NASIRU V. C.O.P (1980) 1-2 SC 61 and SALEH Vs. B.O.N. LTD. (2006) 6 NWLR (Pt.976) 316.

Authorities on this point have emphasized the need to refrain from interfering with the decision of the lower Court where there is no patent misapprehension of the facts on the part of the trial Court, see: NYESOM Vs. PETERSIDE & ORS. (2016) 2 M.J.S.C. (Pt.1) Pg 182-183 Paras. F-A, where the Supreme Court of Nigeria also held as follows:
“There is no doubt that the evaluation of evidence and ascription of probative value thereto are the primary duties of the trial Court, which had the singular opportunity of seeing and hearing the witnesses testify and an appellate Court would ordinarily not interfere. It is also trite that this Court will not interfere with concurrent findings of fact by two lower Courts unless it is shown that the findings are perverse, or not based on a proper and dispassionate appraisal of the evidence, or that there is an error either of law or fact, which has occasioned a miscarriage of justice.”

See also: OGOALA Vs. THE STATE (1991) 2 NWLR (Pt.175) 509; SALEH V. B.O.N. LTD. (2006) 6 NWLR (Pt.976) 316 AT 329-330 PARAS. H-C; AGBAJE Vs. FASHOLA (2008) 6 NWLR (PT.1082) 90 and OGUNDALU V. MACJOB (2015) 3 M.J.S.C.(Pt.1) Pg.78 at Pg.107 Para. G.

In my humble understanding, the learned trial judge properly evaluated and appraised the evidence led at the trial, he conducted unquestionable evaluation and this Court has no business interfering with the findings. This issue is therefore resolved against the Appellant in favour of the 1st Respondent.

SUBMISSIONS OF COUNSEL ON ISSUE THREE.

Submitting on the third issue learned counsel for the Appellant submitted that the 1st Respondent had claimed in the Amended Statement of Claim the sum of N31,500,000.00 [Thirty-One Million, Five Hundred Thousand Naira] as special and general damages suffered on account of the purported unlawful acts of the Appellants; that the piece of evidence relied upon to support the 1st Respondent’s claim for special damages, was the Deposition of CW1 in the Statement on Oath dated October 31, 2006, and copy of an Approved Building Plan MU/91/222/98 admitted as Exhibit C3. Counsel argued that in CW1’s deposition, it was alleged that the 1st Respondent’s father had fenced the property and secured it with a metal gate and padlocked it to prevent trespassers; that 1st Respondent’s parents had also built a structure comprising three floors of a three storey commercial building of eight flats of three bedrooms each; that the rental income of the three storey building was N250,000.00 [Two Hundred and Fifty Thousand Naira] per annum.

Learned counsel submitted, that to controvert this testimony of CW1, the Appellant called two witnesses, DW1 and DW2 who both testified that there was no three storey building standing on the land. Counsel further submitted that both DW1 and DW2 both testified that there were about six pillars on the land and a fence of twenty-seven inches round the land, but both denied CW1’s evidence that there was a padlocked gate on the land when the Appellant took possession of the land [See paragraphs 5 and 17 of DW1’s witness statement at pages 7-9 of the Record of appeal, and paragraphs 5 and 6 of DW2’s witness statement at page 11 of the Record). Learned counsel submitted that under cross-examination, both DW1 and DW2 both testified that there was no decking on the land in dispute when purchased by the Appellant, and that DW2 further testified under re-examination that each floor of the three storey building needs to be decked [See paragraph 3 at page 166 of the Record and paragraph 7 and 11 at page 169 of the Record).

Learned counsel submitted that in making its findings on issue of damages the lower Court held that the evidence led by the claimant was unchallenged and that the Claimant satisfied the conditions for proof of special damages. The lower Court agreed that the 1st Defendant/Appellant destroyed the uncompleted building together with the fence and gate on the disputed land. Relying on the case of NNPC Vs. CLIFCO NIGERIA LTD (2011) LPELR SC.233/2003; NEKA B.B.B MANUFACTURING CO. LTD Vs. ACB LTD (2004) 2 NWLR (Pt.858) 521; OGBONNA Vs. OGBONNA (2014) LPELR-K/200/2008; OSHINJINRIN Vs. ELIAS (1970) 1 ALL NLR 153; DUMEZ (NIG.) LTD Vs OGBOLI (1972) 1 ALL NLR 241, GONZEE NIGERIA LTD Vs. NERDC (2005) LPELR- SC.140/2000 and ARISON TRADING AND ENGINEERING CO. LTD Vs. MILITARY GOVERNOR OF OGUN STATE (2009) 15 NWLR (Pt.1163) pg.26,

learned counsel submitted that special damages must not only be specifically pleaded with relevant particulars, but must be strictly proved; that without credible evidence, no special damages can be awarded, and that even where the evidence is unchallenged and uncontradicted, the trial Court has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim. Counsel submitted that in the instant case there is no credible evidence led before the lower Court by the 1st Respondent to sustain the claim for the sum of N20,500,000.00 [Twenty Million, Five Hundred Thousand Naira) as special damages for the destruction of the three storey building, fence, gate and padlock; that the evidence relied upon by the lower Court in awarding special damages in favour of the 1st Respondent was the controverted oral evidence of CW1, which was only supported by a copy of an Approved Building Plan MU/91/222/98 admitted as Exhibit C3; and that the copy of an Approved Building Plan is not credible evidence that a three storey building, fence, gate and padlock either existed or were destroyed on the land. Learned counsel submitted that the 1st Respondent’s failed to produce an expert valuation of the destruction or the 3rd party evidence of the contractors.

Learned counsel further submit that there was also no credible evidence led before the lower Court by the 1st Respondent, to sustain the claim for N6,000,000.00 [Six Million Naira) as special damages for loss of annual rent on the land from 2001 to 2004 at N2,000,000.00 [Two Million Naira] per annum; that the 1st Respondent had failed, refused or neglected to provide evidence of the existence of a tenancy/lease by way of an agreement or receipt of payment, nor led credible oral or documentary evidence to sustain the claim of special damages for loss of annual rent on the land. Relying on the case of OKOYE Vs. NWANKWO (2014) LPELR-SC.234/2004; FEDERAL MORTGAGE FINANCE LTD Vs. EKPO (2004) 2 NWLR (Pt.856) pg. 100 at 130, learned counsel submitted that the evidence of CW1 relating to the claim for special damages was controverted and challenged by the evidence of DW1 and DW2 [see paragraphs 5 and 17 of DW1’s witness statement at pages 7-9 of the Record, and paragraphs 5 and 6 of DW2’s witness statement at page 11 of the Record), and that the lower Court failed to place the burden of proving special damages by credible evidence on the 1st Respondent. Learned counsel submitted that the lower Court erred in law and its decision occasioned a miscarriage of justice when it awarded the 1st Respondent special damages of N26,500,000.00 [Twenty-Six Million Five Hundred Thousand Naira) and general damages of N5,000,000,00 (Five Million Naira) in respect of the 1st Respondent’s purported loss of annual rent and the destruction of the 1st Respondent’s three storey building, fence, gate and padlock. In conclusion learned counsel urged this Court to allow this appeal and set aside the judgment of the lower Court.

Learned Counsel for the 1st Respondent said from the pleadings of the 1st Respondent and her testimony in Court, three two storey buildings existed built by her parents, that the Appellant trespassed and destroyed the buildings, and that the Quantity surveyor of the 1st Respondent assessed the value of the buildings at N20,000,000,00 when they were demolished, and that the 1st Respondent tendered the approved building plan.

Learned Counsel referred to the evidence of DW1, Appellants witness who admitted under cross examination that as at 1999/2000, there was no vacant land in the area.

This evidence according to learned Counsel led the lower Court to the conclusion that the witnesses of the Appellant were not witnesses of truth, and that the defense put forward by the Appellant was a sham and therefore laughable. Counsel referred to the decision in USMAN Vs. OWOEYE (2003) 9 NWLR (Pt.82 ) 221 to submit that the claimant has obligation to provide credible evidence to establish claim for special damage, but that unchallenged evidence may constitute proof of special damage. Learned Counsel said the Claimant particularized her claim and her quantity surveyor gave direct evidence on her claim before the Court.

On the inclusion of N5,000,000.00, learned Counsel said it was not baseless he said it was a slip and urged this Court to deduct the sum from the damages awarded.

RESOLUTION OF ISSUE THREE

The witness for the defense, during trial admitted that there were no vacant lands in the area in 1999/2000, the witness said as follows:

“Yes I know the property in dispute. The property in dispute is off Bode Thomas Street, Onipanu, off Ikorodu Road. In 1999/2000 there was no vacant land in the area around Ikorodu Road being used to grow yam, cassava and maize. Yes, I am certain of that fact.” (See page 166 of the Record).

This admission clearly contradicted paragraph 4 of DW1’s Witness Statement on Oath Sworn to on the 1-4th of September 2004 and adopted as his oral testimony in his evidence in chief at the trial found at page 7 of the Records of Appeal. Paragraph 4 of the said adopted Witness Statement on Oath reads as follows:

“I also over two years, that is, between 1999 and 2001 went to the land and met the seller, Mr. Cyprian T.A Olumide using the services of laborers to cultivate and plaintiff, cassava and maize on the land.”

The Learned trial Judge in the course of evaluating the evidence of witnesses (at page 212 of the Record), said as follows:

“DW1 testified further that between 1999 and 2001 when he went to the land in dispute he met the seller Mr. Cyprian T. Olumide using the services of laborers to cultivate crops on the land…….However under cross examination he contradicted himself by stating some conflicting evidence that in 1999/2000 there were no vacant land in the area around Ikorodu Road being used to cultivate yams, cassava and maize and that he was aware that the person, Mr. Cyprian T.A. Olumide, who he stated that he met on the land died in 1970.”

The learned trial Judge further stated in the judgment that there were some structures on the land and that facts admitted need no further proof, he said as follows:

“DW2 under cross examination gave oral evidence that before a foundation can be erected each floor needs to be decked. In other words, he has admitted that there were some structure on the land in dispute and that building was decked. It is trite that facts admitted by an opposite party is deemed to have been established without further proof.”

It was therefore not difficult for the trial Judge to conclude at page 211 of the Records “that DW1 and DW2 are economic with the truth” and further at page 212 of the Record that “the defence presented by the 1st Defendant is nothing but a sham, and it is laughable”. It is beyond any doubt that the 1st Respondent in this appeal established a legitimate claim to damages at the Court below and the decision of the lower Court awarding damages is appropriate in the circumstance. At page 212 of the records the learned trial Judge said “The 1st Defendant had ample opportunity to deny these averments, call evidence in rebuttal or even cross-examine the Claimant on her claims but failed to do so, therefore the Court is bound to believe the evidence as the truth. More particularly as the two witnesses called by the 1st Defendant admitted to meeting some developments on the land in dispute which they destroyed.”

The lower Court award the sum of N31,500,000 to the 1st Respondent when the learned trial Judge said as follows

“The sum of N31,500,000.00 is hereby awarded as special damages suffered by the Claimant on account of the unlawful act of the 1st Defendant.” The same learned trial Judge at page 214 of the records said where a claimant recovers special damage, he will not recover general damages as so doing will amount to double compensation, the learned trial judge said as follows:

“…By the rule against double compensation if a Claimant recovers in full under special damages he will not recover under the head of general damages for that would be double compensation”. The learned trial Judge relied on the decision in GAMBORUMA Vs. BORNO (1997) 3 NWLR (Pt.495) pg.530.

In view of the above and the concession by the Respondent that it will be proper to deduct the sum of N5,000,000.00 general damages awarded to the Claimant/Respondent, Relief No. 4 granted by the trial Court in its judgment of the 9th day of February 2012 is hereby amended by deducting the sum N5,000,000.00 general damages inadvertently awarded to the 1st Respondent as special damage. Relief number 4 shall now read N26,500,000.00. instead of the sum of N31,500,000.00.

In all therefore, except for the reduction of the special damages awarded by the trial Court from N31,500,000.00 to N26,500,000,00, this appeal is devoid of merit and deserves to be and is hereby dismissed by me. The judgment of T. OJIKUTU-OSHODE J., of the High Court of Lagos State delivered on the 9th day of February 2012, in suit NO.LD/1479/2004 is hereby affirmed.

Parties in this appeal shall bear their respective costs.

OGAKWU, JCA.

My learned brother, Tijiani Abubakar, JCA, made available to me the draft of the leading judgment which has just been delivered.

Without a doubt, the Amended Statement of Claim was signed in the name of a Law Firm. This makes the Amended Statement of Claim defective and irregular. But the Amended Statement of Claim is not the Originating Process for the action. The Appellant fully participated in the trial conducted based on the said defective and irregular Amended Statement of Claim. It did not object. Consequently it had condoned the defective and irregular Amended Statement of Claim and waived its right to object, such that it can no longer successfully contend the issue on appeal. See APPEAL No. SC.175/2005: HERITAGE BANK LTD vs. BENTWORTH FINANCE (NIGERIA) LTD (unreported) delivered on 23rd February 2018.

Let me hasten to add that I am aware of the decision of the apex Court in HAMZAT vs. SANNI (2015) LPELR (24302) where a Statement of Claim which was signed in a firm name was held not to be a valid Statement of Claim and the action was struck out on that basis. There is a diametrical difference in the decisions of the apex Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra) and HAMZAT vs. SANNI (supra). The decision inHAMZAT vs. SANNI (supra) which was earlier in time was not brought to the attention of the Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra). Howbeit, HAMZAT vs. SANNI was decided on 30th January 2015 while HERITAGE BANK vs. BENTWORTH FINANCE was decided on 23rd February 2018 . By the legal jurisprudential rule of posterior construction, the decision in HERITAGE BANK vs. BENTWORTH FINANCE (supra) being later in time is to be preferred:CARDOSO vs. DANIEL (1986) 2 NWLR (PT.20) 1 at 38-39, SERIKI vs. SOLARU (1965) NMLR 1 and IKEAKWU vs. NWANKPA (1967) NMLR 224. Accordingly, the lower Court was right to have utilised the irregular Amended Statement of Claim and the evidence adduced thereon since the Appellant had condoned and waived its right to complain about the irregularity.

It is for the foregoing reason and the more exhaustive reasoning and conclusion in the leading judgment, which I adopt as mine, that I also join in dismissing the appeal on the same terms as contained in the leading judgment. I abide by the order as to costs.

OBASEKI-ADEJUMO, JCA.

I read in draft a copy of the leading judgment of my learned brother, TIJJANI ABUBAKAR, JCA just delivered. I am in agreement with the reasoning and conclusion reached therein.

It is a loud position of law that cases are won and lost on the evidence presented by parties before the Court. Where in civil cases, as in the instant one where the standard of proof is on balance of probabilities, the plaintiff present sufficient evidence, satisfactory to support his case, the Court will readily decide the dispute in his favour. See Section 134 of the Evidence Act, 2011; INTERDRILL (NIG) LTD & ANOR V. UBA PLC (2017) – 41907 (SC); WOLUCHEM V. GUDI (1982) LPELR – 3501 (SC); SULEIMAN V. JIMBASH NIGERIA LTD & ANOR (2014) LPELR – 24615 (CA).

The dispute in the instant case centres on a declaration of title to land. The Lower Court found that the 1st Respondent as Claimant was able to establish her interest in the disputed land by production of title documents, other documents as well as the relevant evidence of CW1, which was uncontroverted, showing that the disputed land has been in exclusive possession of her late parents since 1959. The Appellant on the other hand was unable to substantiate its case herein, as the testimony of its witnesses were deemed unreliable.

Accordingly, and for more detailed reasons given by my learned brother in the leading judgment, I find no merit in this appeal. It is hereby dismissed as per the terms contained in the leading judgment. I also abide by the award of costs made therein.

Appearances:

A. Osibogun, O, Okogun with A. Johnson For Appellant(s)

Dotun Oduwobi with Mrs. G. Maguaje for the 1st Respondent For Respondent(s)