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Home » Nigerian Cases » Court of Appeal » Alhaji Ambali Olusegun Oduwole & Ors V. Lagos State Development Property Corporation (2003) LLJR-CA

Alhaji Ambali Olusegun Oduwole & Ors V. Lagos State Development Property Corporation (2003) LLJR-CA

Alhaji Ambali Olusegun Oduwole & Ors V. Lagos State Development Property Corporation (2003)

LawGlobal-Hub Lead Judgment Report

MORONKEJI OMOTAYO ONALAJA, J.C.A.

Owing to the old age of this case with the appeal filed a decade ago, the original plaintiff and defendant had since died leading to the parties named as appellants and respondents, respectively as substituted parties with the leave of this court. The claims of the original plaintiff now appellants against original defendant now respondents following the acceptable, now elementary principle of law, that as parties are bound by their pleadings the claims set out in the statement of claim supersede the claims in the writ of summons as so decided in the cases of Lahan v. Lajoyetan (1972) SC 190, (1972) 1 All NLR (Pt. 2) page 217; Bamgbegbin v. Oriare (2001) 5 NWLR (Pt. 707) page 628 CA; Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) page 342 CA; Oyebadejo v. Olaniyi (2000) 5 NWLR (Pt. 657) page 485 CA; Kaigama v. A.-G., Borno State (2001) 16 NWLR (Pt. 738) page 94 CA; Eya v. Qudus (2001) 15 NWLR (Pt. 737) page 587 CA. The appellant’s claims are as per the amended writ of summons as learned counsel lazily referred to the writ of summons in paragraph 38 at page 34 of the record of appeal in the amended statement of claim thus:

“26. Whereof the plaintiff claims as per his writ of summons.
The amended writ of summons at page 40 of the record of appeal reads thus:
‘The plaintiff’s claims against the defendants jointly and severally are for:
(1) A declaration that the plaintiff is the rightful person to whom the dwelling – house known as No. 48c Bank Olemoh Street, Surulere should be sold in pursuance of the execution of the “House Ownership Scheme” of the first defendants and not the second defendant or any person whatsoever.

(2) A declaration that the purported sale of the dwelling house the subject-matter of this action by the defendants vide certificate of sale dated 26th January, 1982 is null and void and of no effect whatsoever.”

From the foregoing, after service of the writ of summons on defendant/respondent’s pleadings were exchanged, delivered and amended.

Defendant/respondents in accordance with High Court of Lagos State (Civil Procedure) Rules set up amended counter-claim as averred in paragraph 12 of amended statement of defence and counter claim at page 64 of the record of appeal as follows:
“12.Whereof the plaintiff (sic) (defendant) counter-claim for possession of the flat situate lying and being at 48C Mesne Profit for use and occupation of the said flat at the rate of N100 per month with effect from the 1st day of February, 1982 until possession is given to the plaintiff (defendant) counter-claimant.”

As a counter-claim is distinct from the main action as it has the tapestry of an action pleadings were exchanged and delivered on the counter-claim with statement of defence to counter-claim by plaintiffs/appellants at pages 77 to 79 of the record of appeal.

Plaintiff/appellant’s testified for himself and called 4 other witnesses through whom the plaintiff/appellants’ documentary documents were admitted and marked as exhibits A to J. At page 90 of the record of appeal, the 4th PW commented on the documentary evidence tendered for plaintiff/appellants under cross examination by learned counsel to the 1st respondent/1st defendant as follows:
“I agree as per the records of LSDPC plaintiff (now appellants) is not the recognised tenant.”

The 1st defendant, 1st respondent called a witness as official who when he testified was the acting secretary of the special committee on the sale of 1st defendant/1st respondent houses, he was subjected to rigorous cross-examination by learned counsel to 2nd defendant/counter-claimant now 2nd to 4th respondents. A letter exchanged between 1st defendant and 2nd defendant now 1st, 2nd to 4th respondents was sought to be tendered by learned counsel to 2nd set of respondents it was objected to by learned counsel to plaintiff/appellant which after a considered ruling was admitted and marked exhibit J.

The learned counsel to plaintiff/appellants cross-examined 1st defendant/respondent only witness rigorously. The witness concluded his testimony under re-examination that –
‘2nd defendant is the original allottee.’

2nd defendant testified for himself at length and subjected to very rigorous cross-examination by learned counsel to appellant under which at page 104 of the record of appeal he testified as follows:
“I am the only child. When I came in 1973, Madam Aina Banjo and plaintiff were not living in 48C, there is nobody by the name Madam Aina Banjo. My mother was living in 48C, plaintiff was living with her. Plaintiff is still living at 48C. I reiterate that 48 was allotted to my mother while 48C was allotted to me as stated in paragraph 5 of my amended statement of defence. 1st defendant was the owner of both houses.”

At page 105 of the record of appeal still under cross examination of learned counsel to appellant he stated:
“The property was sold to me after I was interviewed on 31/8/81 as evidence by exhibit.”

The 2nd defendant/ 2nd-4th respondent’s was not cross examined by learned counsel to 1st defendant/respondent, he called his son as the witness through whom exhibit P was admitted, as expected he was subjected to rigorous cross examination from learned counsel to appellant. 1st respondent did not cross examine 2nd defendant witness. With this witness 2nd defendant/2nd-4th respondents closed their case.

Learned counsel to the parties addressed the court after which judgment was delivered on 31st day of July, 1991 to be found at pages 134 to 154 of the record of appeal. In the considered judgment after a review of the evidence, the learned trial Judge stated at pages 148, 149, 150-152 of the record of appeal as follows:
“Plaintiff’s claim is for declaration that he is the proper person to whom the property in dispute 48C should be sold and that any sale by 1sl defendant should be declared null and void.
According to his counsel, his claim is based on the premises that plaintiff is the next of kin to the original allottee whom plaintiff claimed is Madam Aina Banjo and family. Plaintiff also claims for the reason that he is the person in possession.

There is no doubt plaintiff’s counsel as a result of the age of this case got mixed up in some of the evidence before the court. The following facts are however admitted by all parties to this case:
1.That the property in dispute is the property of 1st defendant.
2.That 1st defendant is the only allotted agent.
3.That Madam Fatimo Oladunjoye as well as her household were moved by the 1st defendant in 1959 from Ajisomo Street, Lagos.
4.That 48 bank Olemoh Street, Surulere was allotted to Madam Fatimo Oladunjoye.

The bone of contention however is to whom did 1st defendant allot 48C, Bank Olemoh. It is the story of plaintiff it was allotted to Madam Aina Banjo, although in its pleading 1st defendant said it was allotted to Madam Aina Banjo the evidence adduced by its witness is that 1st defendant discovered a mix up in names in respect of the property and found Haruna Banjo to be the original allottee and records had since been rectified. 2nd defendant on the other hand claims as allottee. Plaintiff must also mention claims as next of kin to Madam Aina Banjo and person in possession. He is doing this in accordance with the conditions stated in exhibit C.

The conditions for the sale of house are very clear. They are:
1. The houses will be sold to the original allottees or their heirs.
2. Where the allottees have died without heirs or are otherwise not traceable, the house will be
sold to any other qualified person.

In this connection, the application of occupier of he houses who are not the original allottees will be sympathetically considered but they are not, as of right, automatically entitled to the house.
Plaintiff is claiming as next of kin to one Madam A.

Banjo to whom he believed the house was allotted. He has told the court he is a nephew of one Madam Fatimo Oladunjoye. His evidence is that Madam Fatimo Oladunjoye is the same as Madam A. Banjo. Assuming the property was allotted to Madam A. Banjo and Madam A. Banjo is the same person as Fatimo Oladunjoye, will plaintiff be entitled to the sale as next of kin in preference to Fatimo Oladunjoye’s son whom he knew was in existence? Will the fact that he has been in possession make him a person entitled to the sale of the property? There is this other aspect of the condition No.2 which says if allottees and their heirs are untraceable, sympathetic consideration will be given to any other person qualified, that is occupiers, not as of right and they are not automatically entitled to the house. 2nd defendant tendered exhibit G in which plaintiff himself wrote 2nd defendant on behalf of 2nd defendant’s mother demanding payment of balance due to L.S.D.P.C. It is the story of plaintiff that he started living with Madam Fatimo in 1970 and had been paying rents since then to date. By paying rents he is therefore entitled to buy the house. Plaintiff’s story however is not that Madam Fatimo transferred the tenancy and no change of ownership was attempted until plaintiff sought to buy. Again plaintiff’s story is not that the property was allotted to him by 1st defendant. It is also not his story that 2nd defendant as the heir assigned his interest in the property to him.

There is no doubt plaintiff lived with his supposed Madam Aina Banjo on the premises, I have no evidence that he lived as a co-owner, I have no evidence that he was recognised as an occupier by 1st defendant. Although he produced receipts, all the receipt were issued in the name Madam A. Banjo.
Plaintiff knowing very well by his amended writ and statement of claim that the property had been sold in January, 1980 went to the Special Committee claiming to be the son of Madam A. Banjo and stating his interest in purchasing the house. I cannot imagine anyone more crooked than the plaintiff. His evidence is fraught with contradictions and lies which his brother confirmed were lies. A plaintiff wins or loses in the strength of his case. Plaintiff is seeking declaration that the purported sale be declared null and void. What is his locus standi in asking for such order? What is more the declaration is sought against 1st defendant who has indicated that sales of houses are dealt with by a special committee.

If anybody is to be challenged on the sale it should have been the special committee. Plaintiff is not an allottee he is not the heir to his supposed allottee. The special committee has refused his application. I agree with counsel for 1st defendant that plaintiff has failed to prove his nexus with the property or even 1st defendant. Mere paying of rents does not make him a tenant of 1st defendant’s if at all he did, that was an arrangement for his staying on the premises.

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Plaintiff I find is not a proper person entitled to purchase the house even if his story is accepted. This would have been the end of this case but for 2nd defendant’s counter claim.”

At page 154 of the record of appeal the learned trial Judge observed and concluded the judgment as follows:
“I find 2nd defendant succeeds in his counter-claim.

While plaintiff’s claim for declaration is dismissed in toto, he is hereby ordered to vacate the flat 3 months from today that is on or before 31st of October, 1991 and to pay mesne profits on the property to 2nd defendant at monthly rent of N60 from February, 1982 till December, 1990 and at N100 per month from January, 1991 till possession is given up. Plaintiff is ordered to pay N500 costs of this action to 2nd defendant and N300 costs to 1st defendant.”

Dissatisfied with the above judgment plaintiff/appellants filed at pages 168 to 170 of the record of appeal the notice of appeal where he raised a ground of appeal and furnished particulars paragraphs (a) to (e) and (f) that more grounds of appeal would be filed later.

With the leave of this court appellant filed an amended notice of appeal dated 17th October, 1997 with a total number of nine grounds of appeal. In accordance with rules of brief writing of this court that issues for determination in appellant’s brief must be based, originated and correlate with the grounds of appeal, appellants’ amended brief of argument granted with the leave of this court at page 2 paragraph 2.01 raised the issues for determination in this appeal as follows:
“1. On the state of the pleadings and evidence led at the trial, was the learned Judge right in dismissing the plaintiff/appellant’s claims on the basis of his finding that the original plaintiff (Alhaji Wahab Adeleke Oduwole) failed to prove his nexus with the property in dispute (Grounds I, IV & V).

2. On the state of the pleadings & the evidence led at the trial, was the learned trial Judge right in upholding the counter-claim of the 2nd defendant/2nd – 4th respondent on the basis that the original 2nd defendant (Aruna Osibanjo) was the original allottee of the property in dispute (Grounds II, III, IV, V & VI).

3. Was learned trial Judge right in holding that the original plaintiff (Alhaji Wahab Adeleke Oduwole) had sued the wrong person in that it was the special committee that sold the property to the original 2nd defendant (Aruna Osibanjo) & not the 1st defendant/respondent? [LSDPC] ground VI).

4. Did the learned trial Judge properly evaluate the evidence adduce before her & if she did not, is the Court of Appeal entitled to evaluate the said evidence and come to a different conclusion from that arrived at by the learned trial Judge? (grounds VIII & IX).

The 1st defendant/respondent was served with plaintiff/appellants’ brief of argument from henceforth the parties shall be referred to as appellants and 1st respondent and 2nd set of respondents being 2nd, 3rd & 4th respondents.

The 1st respondent filed first respondent’s brief of argument wherein it raised two issues as follows:
“(1) who was the original allottee of No. 48C Bank Olemoh Street, Surulere.
(2) no relationship between plaintiff/appellant and 1st defendant/respondent.”

2nd set of respondents filed with leave of court amended brief of arguments wherein in paragraph 3 page 3 the under mentioned issues were raised for determination as follows:
“(1) Whether the appellant was entitled to judgment as per his claim from the totality of evidence adduced at the trial?
(2) Whether the 2nd respondent was entitled to judgment as per his counter-claim?
(3) Whether the evidence adduced by the 1st respondent at the trial of this suit is at variance with the 1st respondents’ pleadings and therefore goes to no issue rendering the said evidence worthless and worthy of being expunged from the records of this appeal?
(4) Whether the finding of facts by the learned trial Judge is not supported by the evidence adduced at the trial to warrant the intervention of the Court of Appeal to reverse the findings and make proper findings justifiable from the evidence adduced at the trial?

Appellant filed reply brief to the 1st and 2nd set of respondents briefs of argument.

Upon the appeal coming up for argument appellants relied and adopted the amended appellant brief of argument filed on 6th August, 1999 and also appellants reply brief of argument filed on 22nd November, 2002.

1st respondent relied and adopted its brief of argument filed on 24th March, 1994.
2nd respondent relied and adopted 2nd respondents brief of argument filed with leave of court on 1st February, 2000.

After a calm view and consideration of the issues raised by the parties in their briefs of argument I adopt the issues formulated by appellants for the purposes of this appeal, this is without prejudice that cross references and arguments proffered in respondents’ brief of argument shall be taken into consideration in this appeal.

Issue 1 in appellants’ brief succinctly put raised the issue whether from the state of pleadings and the evidence based on them the appellants discharged the burden of proof and was the learned trial Judge right to have dismissed appellants claims.

In support appellant submitted that appellant’s case as reflected in his pleading was that he was claiming through his aunt Madam Aina Banjo the original owner. That though the property 48C Bank Olemoh Street was not allocated to him it was allocated to his aunt Madam Aina Banjo but he retained and tendered the tenancy card made out in her name by 1st respondent which was admitted and marked exhibit A.

This piece of evidence was based on his pleading and supported by paragraph 5 in 1st respondent’s statement of defence that it allocated the property in dispute 48C aforesaid originally to Aina Banjo and family since 6th April, 1960 as onfirmed by 2nd PW, the principal executive officer in charge of rental properties of 1st respondent coupled with all receipts of payment issued in the name of Madam Aina Banjo which rents were paid personally by appellant though issued in Madam Aina Banjo’s name he retained possession and custody of the receipts which were tendered by him and the lot admitted as exhibit B.

The learned trial Judge was in error to hold the appellant had failed to prove his nexus with the property in dispute through Madam Aina Banjo as it was not necessary to prove any nexus between himself and 2nd respondent who did not claim through Madam Aina Banjo but claimed as the purported original allottee.

On this issue of the original allottee, 1st respondent raised it as issue 1 in its brief of argument and contended that. the learned trial Judge was right that 2nd respondent was the owner of 48C Bank Olemoh aforesaid and satisfied the condition of sale offered for sale during the administration of the pt Executive Governor of Lagos State Alhaji Lateef Jakande in 1982 which sales were under the umbrella of the special committee with three conditions of priority of sale namely that:
“(1) Sale to the original allottee or
(2) Sale to the heir(s) or beneficiaries of deceased allottee or
(3) Where original allottee was dead or was not interested in buying could not be found with sale to the occupier or his heir(s) or beneficiaries.”

In the instant case, the sale was made to the only and surviving son, the (2nd respondent) of Madam Aina Banjo. The learned trial Judge was right to have granted ownership of the property in dispute 48C Bank Olemoh Street, Surulere being the only son of original allottee Madam Aina Banjo.
2nd respondent raised in his issue 2 whether the appellant based on the pleadings and evidence appellant was entitled to judgment which claim was rightly dismissed. At pages 4 to 7 of his brief of argument, he catalogued the evidence adduced by appellant and his witnesses.

That exhibits A and B were all made in Madam Aina Banjo in any event it was clear from the records that A. Banjo, as appellant was not the heir to the original allottee he did not satisfy the second condition of sale. As the appellant failed to establish in reality his nexus with the said property from the totality of evidence adduced appellant failed to establish his case the order of dismissal by the learned Judge was justifiable following the decision in Chief Abusi David Green v. Chief(Dr.) E. T. Dublin Green (1987) 3 NWLR (Pt. 61) page 480 at 491.

The above is the summary of the submissions and contentions of the parties whether the appellant discharged the burden on him as he sought declaratory orders as postulated in his claims and reliefs sought.

This being a civil action wherein appellant sought declaratory reliefs the onus placed on appellant are set out in sections 135, 136 and 137 Evidence Act, Cap. 112 Laws of Federation of Nigeria, 1990 which has been judicially interpreted in our jurisprudence that where a party seeks declaratory order or relief the burden placed upon him is to succeed by preponderance evidence of probability and to succeed on the strength of his own case and not the weakness of the defendant’s case especially where the defendant has not set up a counter-claim.

In the instant case where the 2nd respondent set up a counter-claim for declaration he has to succeed on the strength of his own case and not the weakness in the plaintiff/defendant to the counter-claim as a counter-claim is distinct and independent to the plaintiffs action Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 336 Privy Council; Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) page 370 SC; Elema v. Akenzua (2000) 13 NWLR (Pt. 683) page 92 SC; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) page 562 SC; Temile v. Awani (2001) 12 NWLR (Pt. 728) page 726 SC; Kupoluyi v. Phillips (2001) 13 NWLR (Pt. 731) page 736 CA.

To grant or refuse declaratory relief is at the discretion of the Judge acting judicially and judiciously. The judicial discretion is very wide and only limited by discretion of the court itself Lawrence Elendu & Ors. v. Felix Ekwoaba & Ors. (1995) 3 NWLR (Pt. 386) page 704; (1998) 12 NWLR (Pt.578) page 320 SC; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) pages 412 SC; Khawam v. Akinkugbe (2001) 13 NWLR (Pt. 729) page 70 CA.

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Before exercising the discretion where the parties testified in this appeal before accepting the evidence of a party and rejecting evidence of the other party the learned trial Judge under our jurisprudence is enjoined to set up an imaginary judicial scale and put the evidence adduced by the plaintiff on one side of the scale and put the evidence of the defendant and weigh them both together in so doing, it is not the number of witnesses called by either party to see where the imaginary scale of justice tilts but by evidence of qualitative and probative value preponderates is what is in legal parlance that civil case is decided on evidence of balance of probabilities being the rule in Mogaji v. Odofin (1978) 4 SC 91 at 96, 98; Gbadamosi v. Dairo (2001) 6 NWLR (Pt. 708) page 137 CA; Jack v. Whyte (2001) 6 NWLR (Pt. 709) page 266 SC; Ntoe Edet Etim Omin & Ors. (for themselves and as representing “Ikot Omin Calabar”) v. Usang Ita Etim and 24 Ors. (2003) 6 NWLR (Pt. 817) page 587 at 607.

Appellant claimed that as he occupied the house in dispute through his aunt Madam Aina Banjo as recorded in exhibit A and was paying the rent regularly in the name of the said Madam Aina Banjo as shown in exhibit B. It is common ground that all the documentary evidence admitted as exhibits A, B, C, D, E, F, G, H, I, J, K, L none of them bore the name of the appellant as tenant of 1st respondent which was confirmed by the evidence of 4th PW, appellant’s witness on the documentary evidence tendered on behalf and for appellant that none had any connection or bore the name of appellant and 4th PW an official of LSDPC the owner of 48C stated that:

“I agree as per the records of LSDPC plaintiff (now appellant/defendants) is not the recognised tenant.”
This piece of evidence was the last straw that broke the camel’s back of appellant’s claim of possession to 48C. No doubt that the 1st respondent’s special committee under the execution of the house ownership scheme after consideration of the three categories for house ownership appellant did not establish or fell into any of the three categories after which as per exhibit L the certificate of sale was issued in favour of 2nd respondent on 26th day of January, 1982. Based on the documentary evidence of appellant it established beyond par adventure or any doubt that appellant failed woe-fully to establish or his connection or nexus as occupier or tenant of LSDPC and not qualified for the sale of 48C to him under the house ownership scheme.
As appellant relied on documentary evidence it is covered by section 132(1) Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 no oral or extraneous evidence was admissible to contradict the content of the documentary evidence except appellant established the exception set out in the said section as interpreted by the Supreme Court in the case of Union Bank of Nigeria Ltd. v. Professor Albert Ojo Ozigi (1994) NWLR (Pt. 333) page 385 at 400 SC elaborated upon at pages 226 and 227 of the Law and Practice of Evidence in Nigeria by Chief Afe Babalola, SAN Chapter 10 on Documentary Evidence.
From the foregoing, the learned trial Judge rightly held after consideration of appellant’s case at pages 149 to 151 of the record of appeal wherein the learned trial Judge concluded that:
“Plaintiff I find is not a proper person entitled to purchase the house even if his story is accepted. This would have been the end of this case but for 2nd defendants counter-claim.”

My understanding of appellants’ case is reliance on prescription being a mode of acquiring title to incorporeal hereditaments by immemorial or long continued enjoyment and by inference the sale should have been made in his favour. With respect, this inference cannot be made or drawn in his favour having not pleaded it as posited by appellant that under our jurisprudence parties are bound by their pleadings. Abimbola George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117, (1963) 1 All NLR 71 at 77; Akande v. Alagbe (2000) 15 NWLR (Pt. 690) Page 353 CA. Ownership of land by prescription is unknown in any form to customary law here the customary law differs most significantly from modem law system.

The rule and it is trite that as stated per Watson, J. in Agyeman v. Yarmoah (1913) D & F 1911 – 1916 page 56 carried forward per Ollenu J. in Ohimen v. Adjei (1957) 2 WALR page 275 that:
“There is no prescriptive right in this country, undisturbed possession of land by a stranger for however long a time cannot ripen into ownership, mere use and occupation for some time cannot give an original title in other words, there is no such thing in native customary law.”

see also Akinloye v. Eyiyola (1968) NMLR page 92, Nigerian Land Law by Prof. B. O. Nwabueze Chapter 15.

In Kankia v. Maigemu (2003) 6 NWLR (Pt. 817) at page 522 Salami, J.C.A. observed and it was held:
“5. A right to title to land is not founded on prescription irrespective of the period of possession. In other words, a claim for declaration of title is not founded on ownership by prescription under native law and custom unless the origin of the title is valid. The length of possession does not ripen invalid title of a trespasser to a valid ownership title (Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) page 393 referred to).”

After careful consideration of issue 1 raised by appellant from the foregoing it is resolved against appellants as unmeritorious the appeal is dismissed whilst upholding issues on the point in respondents brief as cogent and convincing that the appeal be dismissed.

Issue 2 in appellants’ brief of argument stated that from the pleadings and evidence led at the trial the learned trial Judge was wrong to have granted the counter-claim of 2nd set of respondents, the 2nd to 4th respondents.

Appellant submitted that as parties gave contradictory evidence of their roots of title whilst appellant claimed through his aunt Madam Aina Banjo the original owner, 2nd set of respondents claimed original ownership by 2nd defendant personally whereas 2nd PW an official of pt respondent testified that from 6th April, 1960 the occupier was from record Aina Banjo family. Whereas 1st DW evidence also an official of 1st respondent was contrary to the pleadings which evidence went to no issue and ought to have been expunged by both the learned trial Judge and this court in support learned counsel for appellant relied on the under mentioned cases Okebola v. Molake (1975) 12 SC 61 at 62; NIPC v. Thompson Organisation Ltd. & Anor. (1969) 1 All NLR 138 at 142 to 143, Williams v. Williams & Anor. (1974) 3 SC 83 at 93.

1st DW testified and admitted in the testimony that the oral testimony was derived from documentary evidence not produced in court the trial court should have invoked the provisions of section 98(b) and 149 Evidence Act to hold that Madam Aina Banjo was the original owner and not 2nd defendant/respondent by so holding was erroneous and ought to have dismissed the counter-claim.

In reply to respondents’ brief, appellant conceded that a counter claim is for all practical purposes regarded as an independent action Agbara v. Amara (1995) 7 NWLR (Pt. 410) page 712 at 732, 2nd defendant as a plaintiff in the counter claim must succeed on the strength of his own case and not the weakness of appellants case Adenle v. Oyebade (1967) NMLR page 136 at 137 and 138 based on the evidence on the counter claim of 1st DW the action ought to have been dismissed. As the learned trial Judge dismissed appellant’s claims, it was not automatic to grant title to 2nd respondent reliance was put on Dada v. Ogunremi (1967) NMLR page 181 at 182.

The learned trial Judge was wrong to have invoked section 40(1) of the Rent Control and Recovery of Residential Premises Law 1976 as interpreted in the case of Pan Asian African Co. Ltd. v. NICON (1982) All NLR 215 at 245 SC. As 2nd respondent did not claim through Madam Aina Banjo as predicated by admissible evidence was the original owner and not 2nd respondent therefore had nothing to pass on as landlord based on the maxim nemo dat quod non habet and not correct that appellant failed to establish Madam Aina Banjo as original owner contrary to exhibit A the tenancy card of Madam Aina Banjo.

For the above reasons, this court should set aside the counter claim and allow appellants appeal that the counter claim was wrongly granted against appellant.

First respondent did not address the issue of counter claim in its brief of argument as it did not affect or concern the 1st respondent.

At pages 7, 8 and 9 of 2nd respondents’ brief of argument re-viewed the evidence in particular that by virtue of exhibit L, the 1st respondent the titular owner under its Housing Ownership Scheme laid down three criteria as to how an occupier could become the owner of the property occupied as tenant of 1st respondent. As in the instant case where there were conflicting and competing claims to ownership of 48C Bank Olemoh Street aforesaid the 1st respondent set up a special committee to consider the cases of the parties and to recommend to whom the house should be sold. The parties to wit the appellant and 2nd respondent appeared before the special committee and presented their cases and evidence after which the special committee reviewed the evidence adduced before it and made recommendation to the then governor of Lagos State the person to whom the property be sold and acquire ownership to the right title and interest of the disputed property by sale. It was this procedure that was followed and adopted in the sale by 1st respondent to 2nd respondent which sale was sealed by Executive Governor of Lagos State by execution of exhibit L the sale of 48C aforesaid to 2nd respondent.

As appellant had no legal right to occupation of 48C though as shown in exhibit B he paid monthly rent in the name of Madam Aina Banjo to 1st respondent. Learned counsel to 2nd respondent submitted and contended that appellant became a tenant at will under the recovery of premises law of Lagos State as interpreted by the Supreme Court in Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR page 215 and was liable to ejectment as claimed in the counter-claim being a distinct, separate, and independent action with the pleading and evidence was rightly determined in favour of 2nd respondent, that the complaint of appellant lacked substance and be dismissed.

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As stated above 2nd respondent’s counter claim is a distinct, separate and independent cause of action from appellant’s claims.

After due consideration of the pleadings, evidence and the law the learned trial Judge found as a fact that 2nd respondent established the counter-claim in law and in fact against the appellant.
Appellant urged this court to set aside the counter claim as submitted in the argument on issue II by appellant.

The conclusion and entry of judgment on the counter claim after review of the fact and law was a finding of fact by the lower court.

Being finding of fact the attitude of an appeal court by a trial or lower court is well settled that the Court of Appeal loathes or generally not to interfere with the finding of facts by a trial court except or unless where the finding of facts is found to be perverse or based on wrong principle of law.
An appellant court will not interfere with a finding of fact by a trial where it is supported by cogent and convincing evidence. In the instant appeal, the findings of facts by the learned trial Judge looking at the record, the pleadings and evidence based on them in support of the counter claim were cogent, convincing and supportable from the evidence led on the counter-claim were not perverse as an appellant court there is no legal basis or justification to interfere with the said finding that led to the grant of the claims of the counterclaim. Woluchem v. Gudi (181) 5 SC 291; Ebba v. Ogodo (1984) 1 SCNLR 372; Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1 SC; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) page 412 SC; Nsirim v. Onuma Const. Co. Ltd. (2001) 7 NWLR (Pt. 713) page 742 SC; Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR (Pt.736) page 424 SC; Alhaji Hamdana Kankia v. Ali Maigemu & Ors. (2003) 6 NWLR (Pt. 817) page 496 at 516, 517 CA; Kuma v. Kuma (1936) 5 WACA 4; Nigeria Breweries Ltd. v. Adetoun Oladeji Nig. Ltd. (2002) 15 NWLR (Pt. 791) page 589 at page 623 SC; Chief Akinpeninu Iyanda & 3 Ors. v. Chief Afolabi Laniba II Bale Awe & 30rs. (2002) 8 NWLR (Pt. 801) page 267 CA.

Issues III in appellant’s amended brief of argument complained that the comment of the learned trial Judge that it was improper to institute the action against 1st respondent at page 151 of the record of appeal as follows:
“His evidence is fraught with contradictions and lies which his brother confirmed were lies. A plaintiff wins or loses on the strength of his case. Plaintiff (now appellant) is seeking declaration that the purported sale be declared null and void. What is his locus standi in asking for such order? What is more the declaration is sought against 1st defendant who had indicated that sales of houses are dealt with by a special committee. If any body is to be challenged on the sale it should have been the special committee. Plaintiff is not an allottee he is not the heir to his supposed allottee. The special committee has refused his application. I agree with counsel for 1st defendant that plaintiff  as failed to prove his nexus with the property or even pt defendant. Mere paying of rents does not make him a tenant of 1st defendant if at all he did that was an arrangement for his staying on the premises.”

With respect to learned counsel to appellant, he has made a mountain out of a mole hill that the learned trial Judge stated the 1st defendant should not have been sued the comment about an action against the special committee was an obiter dictum and there was no where in the judgment that 1st respondent was not a proper party.

So after considering the arguments proffered by appellant and respondents that the statement about suing special committee being an obiter dictum was not categorical but a passing remark as the 1st respondent was not struck out as not been a proper and or necessary party. The special committee was not treated nor clothed with legal personality.

In any event, the issue is to be resolved within a narrow compass as Order 14 rule 19 High Court of Lagos State (Civil Procedure) Law Cap. 61, Laws of Lagos State states that no action shall be defeated by reason of the mis-joinder or non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. see page 136 Commentaries from the Bench Part II by Onalaja, J.C.A., topic Parties to Civil Actions.

Failure to join a necessary party to a proceeding is not fatal to the proceeding and the court may determine the issues or question in dispute so far as regards the right and interest of the parties actually before it. J. F Oladeinde & Anr. v. J. O. Oduwole (1962) WRNLR page41; Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) page 157 SC; New Engineering Works Ltd. v. Denap Ltd. (1997) 10 NWLR (Pt. 525) page 481; Unilife Devt. Co. v. Adeshigbin (2001) 4 NWLR H (Pt. 704) page 609 SC.

Applying the above cases to the instant appeal and after a cool calm view of the arguments canvassed by appellant on issue III, I see no substance in the argument, lacked any merit thereby grossly unmeritorious, leading to resolving issue III in appellant’s amended brief against the appellant and to the dismissal of the appeal on this issue.

Finally is issue IV, appellants amended brief of argument challenged the decision of the learned trial Judge that there was no proper evaluation of evidence adduced before her she therefore resolved the case against appellant on wrong principle of law and urges this court to set aside the judgment of the lower court by allowing the appeal with the consequential order of grant of the declaratory reliefs sought by appellant.

This issue IV in appellants’ amended brief of argument is succinctly complaint against evaluation and ascription of weight to the evidence. I have therefore considered the arguments proffered by appellant in his amended brief of argument that the learned trial Judge did not evaluate evidence adduced properly for the avoidance of repetition pages 148 to 152 of the record of appeal already reflected above in the body of this judgment established the pains undertaken by the learned trial Judge to review the evidence before evaluation and ascription of weight and probative value to them.

The attitude of appellate court to evaluation of evidence by trial court is well settled and trite. It is that evaluation of evidence and ascription of weight to evidence is primarily the function and duty of the trial court and where it based its judgment on the credibility of witnesses as in the instant appeal wherein at page 1st of the record of appeal the learned trial Judge stated about the appellant that:
“His evidence is fraught with contradictions and lies which his brother confirmed were lies,”

The appeal court will not interfere with the judgment unless it can be established that the trial court did not take advantage of watching the demean our of the witnesses and of hearing and seeing them during their testimony. As reflected at pages 148 to 152 of the record of appeal that the learned trial Judge or court failed to take advantage of seeing and hearing the witnesses before making its findings that the appellant was incredible and when regard is had to the inference that could reasonably be made by a just and reasonable tribunal from the same facts before trial court.

In the circumstance this Court of Appeal has no legal basis and or justification to interfere with the evaluation of evidence and ascription of probative value to the pieces of evidence even in the instant case all documentary pieces of evidence of tenancy, payment of rents and marked exhibits A to K and L did not bear or showed any nexus or connection of appellant to the exhibits connected with the sale of 48C Bank Olemoh Surulere Lagos aforesaid Ebba v. Ododo supra; Woluchem v. Gudi supra; Maja v. Stocco (1968) 1All NLR page 141 SC; Fasikun II v. Oluronke II (1990) 2 NWLR (Pt. 589) page 1 SC; Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) page 172 CA; Akande v. Alagbe (2000) 15 NWLR (Pt. 690) page 353 CA; Wilson v. Oshin (2000) 9 NWLR (Pt. 673) page 442 SC.

Applying the above authorities to this case this court has already stated above there are no legal grounds or sound legal principle of law to interfere with the evaluation and ascription of probative value to the pieces of evidence as the learned trial Judge evaluated the evidence rightly.

As appellant sought declaratory reliefs I have already stated above in the consideration issue 1 in amended appellants brief of arguments for the avoidance of repetition I adopt the reasonings on the attitude of an appellate court to exercise of discretion by the learned trial Judge pointedly that issue IV in amended appellants brief of argument is resolved against the appellant leading to declaring the appeal unmeritorious and unsuccessful.

From the foregoing looking at it from all angles and through the prism of the arguments in this appeal the appeal lacks merit and all the issues are resolved against appellants with the dismissal of appeal in all its ramifications and entirety.

Having dismissed the appeal respondents are entitled to the cost of this appeal. Following the acceptable rule of law that costs follow the event and warded judicially and judiciously to compensate the successful party and not to punish the unsuccessful party I fix the cost of this appeal in the sum of N4000 (four thousand naira) in favour of 1st respondent against appellant whilst I fix the sum of N6000.00 (six thousand naira) in favour of 2nd set of respondents against the appellants.


Other Citations: (2003)LCN/1427(CA)

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