Chief Joel E. Babatola V. Mrs. Margaret Adewumi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Ekiti State High Court, sitting at Ado-Ekiti in Suit No: HAD/54/2003 delivered on the 3rd day of December, 2007. The Appellant herein was defendant at the lower court in a suit filed against him by the Respondent (as plaintiff) in which the Respondent sought for a declaration and an injunctive relief pertaining to some buildings on a piece of land situate, lying and being at plot 7A, Block R, Olora Layout, along Opopogboro, Ado-Ekiti.

The Respondent’s case at the trial court is that, she bought a plot of land from the Appellant sometimes in 1977 at a price of Three Hundred Naira (N300:00) wherein a purchase receipt was issued to her by the Appellant. That she then carried out a survey of the land and later obtained a building plan in 1982 and that after she obtained the building approval, she erected a bungalow of 2 flats of 4 bedrooms each, one of which she let out to tenants, while she and her children occupied the other. lt is also her case that there was political upheaval in the old Ondo State in 1983 in which the Appellant was adversely affected as his house was burnt, so she invited him to live with her, but her house was also burnt.

That she then ran to her parents in Ibadan who assisted her to reconstruct the burnt house. That she then permitted the Appellant to put tenants in the house and to collect the rent. She later demanded from the Appellant that the houses be returned to her but the Appellant refused to do so, claiming the houses to be his own. lt is under that circumstances that she took out a writ of summons against the Appellant before the lower court. The reliefs she claimed before the trial court are as stated in paragraph 8 of the Amended Statement of Claim. They are:

“Whereof the Plaintiff claims against the Defendant as follows:

(i) A declaration that she is the bonafide owner of the bungalow building comprising of two flats, each of four bedrooms, situate, lying and being at Plot No.7A, Block R, Olora Layout, along Opopogboro, Ado-Ekiti, located on the plot of land which the said Plaintiff purchased from the Defendant as evidenced by the Defendant’s purchase receipt dated the 7th day of September, 1977.

(ii) An Order of this Honourable Court directing that the Defendant should desist forthwith from collecting rent from the tenants of the said plaintiff’s house, situate, lying and being at Plot No. 7A, Block R, Olora Layout, along Opopogboro, Ado-Ekiti, the standing order of the Plaintiff to the Defendant to that effect, contained in their agreement dated the 5th of June, 1986, having terminated on Tuesday, the 3rd day of June, 2003.

(iii) An Order of Perpetual Injunction restraining the said Defendant, his servants, agents and privies from further entering upon the premises or doing anything whatsoever in the house without the authority, consent or approval of the said plaintiff.

The Appellant as Defendant at the lower court filed an Amended Statement of Defence dated the 9th day of October, 2006 wherein he denied the Plaintiff/Respondent’s claim and urged the court to dismiss the claim as being frivolous, gold digging, vexatious, speculative and an abuse of court process. The Respondent did not file any Reply to the Statement of defence.

At the trial at the lower court, the Plaintiff testified and tendered two exhibits marked as Exhibits 1 and 2 respectively. They are a purchase receipt from the Olora Chieftaincy Family in respect of Plot 7A, Block R at Olora Family Layout and undertaking from Chief Joel Ehinafe Babatola of New Ora House, Opopogboro, Ado-Ekiti. She did not call any other witness. The Defendant also testified and tendered the Olora Family Layout Plan and a receipt which were marked for identification purposes only. He also called two other witnesses who testified as P.W.2 and P.W.3. At the close of evidence, counsel on both sides addressed the court, and in a considered judgment delivered on the 3rd day of December, 2007, the learned trial Judge I.O Akeju, J (as he then was) gave judgment in favour of the Plaintiff now Respondent, and granted all the reliefs sought by her. The Defendant (now Appellant) is dissatisfied with the judgment of the lower court and have now filed this appeal seeking that the said judgment be set aside. The Notice of Appeal as contained in pages 96 – 101 of the Record of Appeal is dated and filed the 27th of December, 2007.

The Grounds of Appeal and the particulars in support thereof are contained in the said Notice of Appeal. It consists of six (6) Grounds of Appeal. The said Grounds of Appeal without their particulars are herein under reproduced:

1. That (sic) learned trial judge erred in law when the identity of the subject matter was not ascertained.
2. The learned trial judge erred in law in not considering the submission of counsel to the Appellant on the fact that the Plaintiff did not call some material witnesses which is fatal to plaintiff’s case.
3. The learned trial judge erred in law in given (sic) judgment to the Plaintiff in a declaratory action which put heavy burden of proof on the plaintiff which Plaintiff has not discharged as expected in a declaratory judgment.
4. The learned trial judge erred in law in relying heavily on Exhibit 2 to give judgment to the Plaintiff where there are evidence to show that the document is not reliable.
5. The learned trial judge erred in law when he held that objection to Exhibit 2 ought to have been proved beyond reasonable doubt as envisage(sic) under the criminal procedure Act by providing particulars of objection.
6. The learned trial judge erred in law in not dismissing the claim of the Plaintiff on balance of probability.

In obedience to the Rules and Practice of this Court, the Appellant filed a Brief of Argument dated the 22nd December, 2008 and filed the 30th December, 2008. By Order of this Court granted the 15/03/2010, the Appellant was given leave to serve the Hearing Notice(s) and all other processes in this matter on the Respondent by substituted means, to wit: by pasting same at the Respondent’s last known address at No.9, Akinyemi Way, Ring Road, Ibadan, Oyo State of Nigeria. However, the Respondent neither put up appearance nor filed any Respondent’s Brief of Argument. Accordingly, on the 6th day of May , 2011, we granted leave to the Appellant to argue the appeal on the Appellant’s Brief in view of the failure of the Respondent to file the Respondent’s Brief of Argument. This order was made pursuant to a Motion on Notice filed by the Appellant dated and filed the 6th day of June, 2009. It was made pursuant to order 17 rules 4(1) and (2) of the Court of Appeal Rules, 2007. It means therefore that this appeal was heard on the Appellant’s Brief alone.

In the Appellant’s Brief of Argument, three (3) issues were distilled for determination from the six(6) Grounds of Appeal as set out in the Notice of Appeal. They are as follows:

1. Whether the identity of the subject matter was ascertained before judgment was given to the plaintiff. (Ground 1).
2. Whether the Plaintiff has been able to proof her case without calling material witnesses in a declaratory action. (Grounds 2, 3, and 6).
3. Whether the learned trial judge was right in relying on Exhibit 2 to give judgment to the Respondent (Grounds 4 and 5).

The appeal was heard on the 21st day of June, 2011. At the hearing, Mr. Owoseni Ajayi of learned counsel who settled the Appellant’s Brief of Argument, adopted the said Brief as his argument in this appeal and urged us to allow the appeal.