Adaku Amadi V. Edward N. Nwosu (1992)
LawGlobal-Hub Lead Judgment Report
L. KUTIGI, J.S.C.
I dismissed this appeal on the 6th day of April, 1992 after hearing counsel on the single ground of appeal he argued before this Court without calling on respondent’s counsel and now give my reasons.
The plaintiff who is now the respondent claimed in the Owerri High Court against the defendant who is appellant in this appeal as follows:
“(a) A declaration that the plaintiff having purchased the buildings situate at and known as No. 179 Tetlow Road, Owerri from the former owner Mr Godfrey F.A. Amadi and having obtained a statutory Certificate of Occupancy in relation to the said property registered as No.50 at page 50 in Volume 86 of the Lands Registry in the Office at Owerri is entitled to the physical possession of the said 179 Tetlow Road, Owerri without any molestation from any quarters whatsoever.
(b) A declaration that the defendant by wrongfully claiming as at 18/5/81 to be the owner of the said 179 Tetlow Road, Owerri after being earlier on informed of the transfer by sale of the ownership of same by the true and original owner to the plaintiff and by refusing to vacate the premises when asked to do so, and not being a tenant, is as from the date of such wrongful claim a trespasser.
(c) N200.00 (Two Hundred Naira) being general damages for trespass in that on or about 18/5/81 and continuing the defendant by herself, her agents and servants occupied the plaintiff’s house at 179 Tetlow Road, Owerri without the consent or permission of the plaintiff.
(d) A perpetual injunction restraining the defendant by herself and/or her servants or agents from further interfering with the plaintiff’s rights of occupancy in and over the said No. 179 Tetlow Road, Owerri.”
Pleadings were filed and exchanged. The trial proceeded before Chianakwalam I. and judgment was duly delivered by him in favour of the respondent. The appellant was dissatisfied with the judgment of the trial court and so she appealed to the Court of Appeal where her appeal was dismissed. Still dissatisfied she has now appealed to this Court.
The respondent’s case as pleaded in his Amended Statement of Claim was briefly that he purchased the property and premises in dispute known as No. 179 Tetlow Road, Owerri, from its owner, one Godfrey F.A. Amadi for the sum of N140,000.00, Godfrey F.A. Amadi is or was the husband of the appellant herein and he testified for the respondent at the trial as P.W.1. The respondent traced his root of title to the said Godfrey Amadi and tendered a number of documents which included among others. The power of Attorney (Exh. A) and a Deed of Assignment (Exh.D) in respect of the property. Godfrey, the Vendor, in his evidence confirmed the testimony of the respondent. He also gave cogent testimony of how he came to own the property in question through partition of family land and later developed it by erecting a building thereon. According to Godfrey after he had sold the property to the respondent, he used the money to develop another land at No.33 Anokwu Street where he now lives. He said when he requested the appellant to move to the new building with him she bluntly refused and forcibly continued to occupy the property in dispute.
The appellant on the other hand claimed that the property in dispute was family property allocated to her husband, Godfrey. F.A. Amadi, herself and their children. She also claimed to have contributed labour and sand to the building of the property and that she owned it jointly with Godfrey, her husband (P.W.1).
In a reserved judgment the learned trial judge after evaluating the evidence and making findings of facts on the issues raised before him entered judgment for the respondent.
In the Court of Appeal the following three questions were posed by the appellant for determination –
- Whether upon the pleadings and evidence led the trial Judge was right in holding that the plaintiff/respondent proved his case and gave judgment for him.
- Whether the learned trial Judge was right when he held that the defendant/appellant did not make any contribution towards the erection of the building.
- Whether the learned trial Judge was right when he held that the defendant/appellant and her children have no interest in the land which is the subject matter of the action in that the land was shared before the marriage between the plaintiff witness No. 1 and the defendant/appellant.
The Court of Appeal considered all the above issues and dismissed the appeal.
On behalf of the appellant only three grounds of appeal were filed. Grounds 2 & 3 were struck out by this Court on 20/11/89.
From the surviving single ground of appeal, Mr Njemanze, learned counsel for the appellant rightly in my view, raised the following issue in his brief for the consideration of this Court –
“Whether on the pleadings and the evidence led, the Court of Appeal was right in holding that the defence of JOINT ownership did not succeed.”
This appears to be the same issue as issue No.2 in the Court of Appeal above.
It was submitted that both the High Court and the Court of Appeal were wrong to have rejected the evidence of the appellant that she paid for sand and labour when the house in dispute was built as pieces of evidence which were not pleaded. He referred to para. 14 of the Statement of Defence. He said the appellant pleaded enough facts in her Statement of Defence to meet the case of the respondent on the ownership of the property at No. 179 Tetlow Road, Owerri. He did not refer the Court to the relevant paragraphs at all. It was contended that there was no evidence before the trial court that the husband. Godfrey Amadi, built the house without the contribution from his wife, the appellant. He referred to the judgment page 79 lines 5 -17 and to the following cases –
OKAGBUE v. ROMAINE (1982) 5 S.C. 133; ORIZU v. ANYEAGBUNAM (1978) 5 S.C. 21; JIMONA v. N.E.C. (1966) 1 All NLR 122; JAMES v. MID-MOTORS (1978) 11 & 12 S.C. 31; THANNI v. SAIBU (1977) 2 S.C 89
I think it is proper to have a look al the judgment of the learned trial Judge in order to see how he arrived at the conclusion that the appellant contributed nothing towards the erection of the building in question. In his judgment the learned trial Judge dealt with the matter on page 79 of the record thus-
“In the instant case, added to the default in not cross-examining P.W.1 on the issue of defendant’s contributions towards the building of the house in dispute, the Statement of Defence is silent and vague on the specific contributions made by the defendant. It did not aver that labour and sand were contributed. In her evidence she simply said;
“I paid for labour and sand when the house was built”.
Again she did not name the recipients of the payments she alleged she made for labour and sand or who supplied the physical labour and sand. The question in this case as indeed in the case relied upon by learned counsel for the defendant, is whether the house was built as a joint venture or not; and the Court will look at the facts in order to decide the issue.
From the pleadings and the evidence before me I find as a fact that the defendant did not make any contribution towards the erection of the building. I find the building was financed solely by P.W.1.”
Now the plaintiff/respondent pleaded in para. 14 of the Amended Statement of Claim that –
“14. The defendant is not a tenant in the said No.179 Tetlow Road nor is she the owner of co-owner of the building.
(a) The said Godfrey F.A Amadi has since erected a two storey building wherein he now lives but the defendant has refused and or neglected to vacate.”
In reply the defendant/appellant pleaded in paras. 14 & 20 of the Statement of Defence as follows:-
“14. In answer to para. 14 of the Statement of Claim the defendant shall at the trial contend that she is a joint owner of the said No. 179 Tetlow Road, Owerri, and that she lives at the premises with her children and that the plaintiff did not get vacant possession of the said No. 179 Tetlow Road, Owerri as a result of the purported sale or transfer from the said Godfrey Amadi.
- The said No. 179 Tetlow Road, Owerri, was built co-jointly by the said Godfrey F.A. Amadi and the defendant as husband and wife.”
In his evidence before the Court Godfrey F.A. Amadi testifying as P.W.1, stated on p.43 of the record that –
“I know the plaintiff and the defendant. I know No. 179 Tetlow Road which is now in dispute. Plaintiff is now the present owner of the property. I owned it as my bona fide property before I passed my interest on it to the plaintiff. I did not own it in common with the defendant or any other members of my family. I owned it exclusively. I built the house standing on it, No member of my family not even the defendant contributed monetarily or by lahour towards the building. I transferred my interest on the property to plaintiff.”
(The italics is mine for emphasis only)
The Cross-examination of pages 44 – 45 of the record showed that P.W.1 was not asked any question about any joint ownership or co-ownership of the property with the appellant. He was equally not asked any question about any contributions whether in cash or kind or sand or labour from the appellant. I have also closely read through the Statement of Defence filed by the appellant in the High Court. Nowhere therein did she plead any contributions for labour and sand. So that when she stated in her evidence on page 48 of the record that –
“I paid for labour and sand when the house was built” She was clearly giving evidence on a matter which was not pleaded. It is settled that evidence led on any matter not pleaded goes to no issue and ought to be disregarded when giving judgment (see for example OKE-BOLA v. MOLAKE (1975) 5 S.C 235, EMEGOKWE v. OKADIGBO (1973) 4 S.C. 113). But let me now be liberal and say that by using the words “joint-owner” and “co-jointly” in paras. 14 & 20 of her Statement of Defence above the appellant meant that she contributed to the building of the house. If it were so, then certainly when she came to testify in court she ought to have explained the quality and quantity of her contribution. She also ought of have given details and particulars of the contributions which would have enabled the court of decide whether or not she owned the property with P.W.1. She did not. In addition the appellant called no witnesses to prove that she contributed either labour or sand to the building. I think on a calm view of the pleadings and evidence the trial Court was right when it found as a fact that the appellant did not make any contribution towards the building of the house and that it was the P.W. 1 who solely financed same. This is a finding of fact which unless it is shown to be perverse this Court will not interfere with (see AKPAGBUE v. OGU (1976) 6 S.C. 63, ODOFIN v. AYOOLA (1984) 11 S.C. 72). There is sufficient evidence on record to support the finding and it has not been shown to be perverse (see ONOWAN & ANOR v. ISERHIEN (1976) 1 NMLR 263. In addition the evidence showed that the land was partitioned to P.W.1 long before he got married to the appellant and that the marriage was performed under native law and custom.
It is manifest that in dismissing the appeal, the Court of Appeal adverted its mind to the points highlighted above.
For these reasons I dismissed the further appeal to this Court and affirmed the decisions of both the High Court and the Court of Appeal.A. G. KARIBI-WHYTE, J.S.C.: After hearing counsel for the appellant in this appeal argue the only surviving ground of appeal, on the 6th April, 1992. I summarily dismissed the appeal without calling upon learned Counsel to the Respondent. I indicated on that day that I will give my reasons today. I therefore proceed to do so, hereunder.
I have read the Reasons for judgment of my learned brother Kutigi, J.S.C with which I agree entirely. I only wish to make some observations in amplification on aspects of the reasoning in the leading judgment.
I refer to the only issue for determination formulated by Mr. Njemanze, learned counsel to the Appellant from the ground of appeal. It is as follows-
“Whether on the pleadings and the evidence led, the Court of Appeal was right in holding that the defence of joint ownership did not succeed.”
On his part learned Counsel to the Respondent formulated the issue for determination as follows –
“Whether the concurrent findings of fact by the two lower courts (the trial Court and the Court of Appeal) that the property in dispute is not family property and that the appellant did not contribute to the construction of the building thereon were wrong.”
The formulation of this issue was based on the existence of grounds 2 and 3 of the grounds of appeal. These two grounds having been struck out on grounds of incompetence, the aspect of family property now lacks any foundation. The pith and substance of Appellant’s contention was that the Courts below were in error to have rejected the evidence of Appellant that she as the wife of P.W.1, contributed to the building of 179 Tetlow Road, Owerri, by paying for sand and labour when the house was being built. Learned Counsel to the Appellant, Mr. Njemanze, relied on the averment in paragraphs 14 and 20 of the statement of defence in support of the evidence. It was Counsel’s submission that there was no evidence before the trial Judge that, Godfrey Amadi, P.W.1, Appellant’s husband, built 179 Tetlow Road, Owerri, without any financial contribution from the Appellant. Learned Counsel to the appellant cited and relied on several decisions of this Court in support of his submission.
Mr. Njemanze argued that the learned trial Judge assumed wrongly and without any supporting evidence that P.W.1, husband of the Appellant, must have built the house on 179 Tetlow Road, Owerri, without any contribution from the Appellant. Counsel went on to submit that the issue in controversy between the parties was the ownership of the property, namely, the building on 179 Tetlow Road, Owerri. It is not the ownership of the piece of land on which the building stands.
Mr. Njemanze submitted that the Court of Appeal merely restated the judgment of the trial Court on the issue of the joint ownership of the property. Counsel criticised the Court of Appeal for not taking the marriage of P.W.1 and Appellant into account. It was also submitted that the court should have taken cognisance of the fact that husband and wife may not keep records of their financial contributions to the building of a family house. We were referred to the decision of the High Court of Lagos in Coker v. Coker (1964) LLR. 188 and the English Court of Appeal in Rimmer v. Rimmer (1952) 2 ALL E.R. 863.
In Respondent’s brief of argument, Mr. Onumajulu, learned Counsel, submitted that Appellant’s contention that the Court of Appeal did not take account of the marriage between P.W.1 and Appellant was clearly misconceived. He pointed out that there was evidence that the parties married under customary law. It was further submitted that it was not the case of the Appellant that she did not keep record of her contribution to the building of 179 Tetlow Road, Owerri. Finally, it was submitted that the Court of Appeal considered and distinguished the cases of Coker v. Coker (1964) LLR. 188 and Rimmer v. Rimmer (1952) 2 ALL E.R. 863 relied upon by learned Counsel to the Appellants from the instant case. The criticism of the judgment of the Court of Appeal for rejecting the claim that the Appellant and the P. W.1 owned 179 Tetlow Road, Owerri jointly, was founded both on the marriage of the parties, and the evidence and pleading of the Appellant.
I must confess some difficulty in appreciating the distinction in this case being drawn by learned Counsel between the land on which the building stands, and the building itself. The averments in paragraphs 14 and 20 of the statement of defence forcibly reject that distinction. Appellant was claiming joint ownership of No.179 Tetlow Road. The question of ownership of the land was not in issue. Ground 3 having been struck out on the grounds of incompetence, the issue did not arise.
I consider it more convenient to dispose of the submission which relies on the marriage of the parties, which is inextricably tied to the decisions of Coker v. Coker (supra) and Rimmer v. Rimmer (supra) . Distinguishing these cases from the instant case, the Court of Appeal correctly held that the marriage between P.W.1 and the Appellant was shown to be under native law and custom. In further distinguishing the cases, the Court of Appeal referred to the facts. In Rimmer v. Rimmer (supra) both husband and wife were wage earners. They bought a house in the name of the husband as the matrimonial home. The wife provided the deposit for the house. The rest of the purchase money was borrowed on the security of a mortgage from a building society in the name of the husband. Part of the principal of the mortgage money was repaid out of the housekeeping money provided by the husband. The remainder was repaid by the wife out of her money at a time her husband was on war service. The wife provided all the furniture for the home out of her own resources.
When subsequently, the husband left the wife and the house was sold, the proceeds was shared equally between them on a summons under section 17 of the Married Women’s Property Act 1881 (U.K.). This was because it was not possible fairly to assess the separate beneficial interests of the husband and wife by reference to their contributions to the purchase of the house. In the instant case, the Married Womens’ Property Act 1881 (U.K.) is inapplicable since the marriage is governed by customary law. Appellant’s evidence as to contribution was that she paid for labour and sand when the building was being built.
It is interesting to observe that the evidence of Appellant under cross-examination was that she did not know when the house at 179 Tetlow Road was built. It is not surprising therefore that Appellant in her evidence both in Chief and under cross-examination did not give details of her contribution to the building by payment for labour and sand. This is understandable as, she said; she did not know when the house was built.
The Court of Appeal again pointed out the weakness in the case of the Appellant. This is that Appellant alone gave evidence and did not adduce any evidence of joint ownership of the property in line with the pleading at paragraph 14 of the statement of claim, Respondent had pleaded that
“The defendant is not a tenant in the said 179 Tetlow Road, nor is she the owner or co-owner of the building.”
In answer to this pleading, appellant stated as follows at paragraphs 14, 20 of the statement of defence-
“14. In answer to paragraph 14 of the statement of claim, the Defendant shall at the trial contend she is a joint owner of the said No. 179 Tetlow Road, Owerri, and that she lives at the premises with her children and that the Plaintiff did not get vacant possession of the said No.179 Tetlow Road,’ Owerri as a result of the purported sale or transfer from the said Godfrey Amadi.”
X X X X X
- The said No. 179 Tetlow. Road. Owerri was built co-jointly by the said Godfrey F.A. Amadi and the defendant as Husband and wife.”
In line with the statement of claim P.W.1 referring to No. 179 Tetlow Road, gave evidence at p. 34 as follows –
“Plaintiff is now the present owner. I owned it as my bona fide property before I passed my interest on to the Plaintiff. I did not own it in common with the defendant or any other members of my family. I owned it exclusively. I built the house standing on it. No member of my family not even the defendant contributed monetarily or by labour towards the building. I transferred my interest on (sic) the property to plaintiff.”
Nothing can be clearer than these positive, confident and emphatic assertions of exclusive ownership of No.179 Tetlow Road, by the P.W.1 Godfrey Amadi, the Appellant’s husband. It is pertinent to state that under cross-examination at p.46 lines 20-22, and in anticipation of Appellant’s answer on contribution to the building P.W.1 stated;
“I was living with the defendant in my mother’s kitchen when I built the house at 179 Tetlow Road. She was not trading when I was building the house.”
Earlier on in his evidence in chief P.W.1 had stated, at pages 45 lines 27-31 and 46, lines 1-3 as follows –
“I own 33 Anokwu Street where I now occupy. It is a storey building. I used the proceeds of the sale of 179 Tetlow Road, to build 33 Anokwu Street. I occupied the first floor of 33 Anokwu Street. I left the ground floor for the defendant and her children to occupy……… I do not own 179 Tetlow Road is not family property. I had the right to transfer it as I did.”(sic) (Italics is by me for emphasis).
This evidence stood unchallenged throughout the trial, despite the averments in paragraph 6 of the statement of defence denying that No.179 Tetlow was solely owned as a freehold property by P.W.1; and paragraph 20 that it was built co-jointly, by P.W.1 and Appellant as husband and wife. P.W.1 was not challenged under cross-examination as to his claim in his evidence that he built No.179 Tetlow Road alone. It was on this, evidence that the learned trial Judge came to his finding that Appellant did not make any contribution towards the building of the house and that P.W.1 wholly financed the building.
The Court of Appeal properly accepted this finding of fact when it held that Appellant was unable to prove that she paid for labour and sand when the house was built. That her mere ipse dixit without any other credible evidence was not sufficient. The Court of Appeal held that the learned trial Judge was justified when he held that Appellant failed to name the recipients of the payments she made for labour and sand or who supplied the physical labour and sand. She also did not specify how much in money’s worth she contributed to labour and sand.
This endorsement by the Court below of the findings of the trial Judge amounts to concurrent findings on facts in respect of which this court will be very wary to interfere – See Ogundipe v. Awe (1988) 1 NWLR. (Pt. 88) 188; Ojo v Governor of Oyo State (1989) 1 NWLR (Pt.95) 1 S.C. Learned Counsel to the Appellants has not challenged these findings of facts by the trial Court. It has not been contended befnre us that they are perverse or that they could not have flowed from the evidence before the trial Judge. – See Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) 90 SC. Where the finding is shown to be perverse this Court will surely interfere. – See Odofin v. Ayoola (1984) 11 S.C. 72, Onowan & Anor. v .lserhein (1976) 1 NMLR. 263.
It is now well settled that this court will not disturb the findings of facts of two courts below unless there is manifest error which leads to some miscarriage of justice, or a violation of some principle of law or procedure. There seems to me no doubt in the instant case that the findings of fact made by the trial Judge and upheld by the Court below were amply supported by the evidence adduced at the trial. This Court will therefore not disturb the findings. – See Onwujuba v. Obienu (1991) 4 NWLR (Pt. 188) 16. It therefore follows inevitably that the Appellant having not led evidence to establish the joint ownership pleaded in paragraphs 14 and 20 of the statement of defence, the trial Judge was right in his finding of the fact that the defence was not made out. Accordingly, the Court of Appeal was right in holding that the defence of joint ownership was not established.
It is for the reasons given herein and the other reasons of my learned brother Kutigi, J.S.C that I dismissed this appeal and affirmed the decision of the Court below on the 6th April, 1992.