Edosa V. Ehimwenma & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C. 

The 1st and 2nd Respondents as Plaintiffs, being owners of the properties situate at plots 20B and 20C Dawson lane, Benin City, respectively sued the Appellant and the 1st Respondent’s mother as the 1st and 2nd Defendants respectively. They claimed that according to Bini native law and custom, they in herited the properties from their late father in 1978. They both reside in America but the properties were managed by the 3rd Respondent who was resident in Benin. That on 19/6/2004, the Appellant went to the properties and forcefully ejected the tenants therein and demolished the building on plot 20B and destroyed the economic trees on plot 20C. The Appellant however claimed to have bought plot 20B on 18/6/2004 from one Margaret Ehimwenma, the mother of the 1st Respondent with the consent and authority of the 1st Respondent. The Respondents alleged that the deed of transfer was forged. The trial Court granted the claims of the Respondents and dismissed the Appellant’s counter- claim. The Appellant appealed and lost at the lower Court, hence this appeal.

These issues for determination were distilled by the Appellant thus:

1. Whether the Court below had any legal authority to dismiss the appeal of the Appellant following an omission of a vital document from the record of appeal transmitted to the Court below.
2. Whether the sale of the property in dispute to the Appellant by the 2nd Defendant can be rendered invalid in the absence of a written authority from the 1st Respondent to act on his behalf.
3. Whether having regards to the admitted facts by the Respondents’ witnesses and the affidavit of Gentle Ehimwenma in support of the Appellant’s case, whether the Court of Appeal was right when it held that the Appellant’s failure to call Gentle as a witness was fatal to his case.

The Respondents on their part also formulated 3 issues for determination of this appeal as follows:

1. Whether having regard to the pleadings, burden of proof and evidence placed before the lower Court, the findings of fact made by the two lower Courts ought to be disturbed by this Honourable Court.
2. Whether the omission of the lower Court to make a specific pronouncement on the application of judicial authority to the facts of the case under consideration occasioned any miscarriage of justice to the Appellant.
3. Whether having regard to the facts disclosed in the record of proceedings of the lower Court, the Court of Appeal was right in dismissing the Appellant’s appeal.

The Appellant’s issues above with that of the Respondents’ can neatly be compressed and considered as follows:

”Whether by the evidence and circumstances of the sale of the disputed property to the Appellant, the lower Court was right to dismiss the Appellant’s appeal.”

LEGAL ARGUMENTS:

The Appellant’s learned Counsel argued that the affidavit evidence of Gentle Ehimwenma, admitting that the 1st Respondent verbally empowered the 2nd Defendant to sell the disputed property to the Appellant, which was omitted to be transmitted, and became available for use by the lower Court but ignored would have swayed the lower Court to decide in favour of the Appellant. He submitted that this Court should give due consideration to it in deciding the case of the Appellant. He further submitted that there is evidence that the 1st Respondent gave verbal instruction for the sale of the disputed property to his mother. Thus, that it sufficed if the instruction was not written. He relied on CHIEKE v. OLUSOGA (1997) 3 NWLR (PT.494) AT 403. Furthermore, he submitted that by the case of AKOMOLAFE v. GUARDIAN PRESS LTD (2010) ALL FWLR (PT.517) AT 784, there is credible evidence from the Appellant, PW1 and Gentle Ehimwenma that the disputed property was sold to the Appellant by the 1st Respondent through the 2nd Defendant. He urged this issue to be resolved in favour of the Appellant and to allow the appeal.

The learned Counsel to the Respondents by his submission argued that by the concurrent judgments of both the trial and lower Courts, the Appellant is unable to demonstrate that their findings were perverse. Therefore, this Court should not interfere with it. He relied on OLANIYAN v. OYEWOLE (2011) 14 NWLR (PT. 1268) AT 490.

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He submitted again that the accepted evidence in this case is that the 1st Respondent appointed the 3rd Respondent to manage his plot 20B Dawson lane, Benin City, which title document was stolen by the 2nd Defendant, the mother of the 1st Respondent, to sell the property to the Appellant. Thus, that the findings made by the lower Court were not erroneous. Again, it was argued that the affidavit of Gentle Ehimwenma was never part of the evidence before the trial Court. Thus, parties are bound by the record of appeal as decided in OGUNTAYO v. ADELAJA (2009) 15 NWLR (PT. 1163) AT 161. He further submitted that to rely on the affidavit of Gentle Ehimwenma, who was not a witness and whose affidavit was never tendered nor received in evidence is to rely on documentary hearsay, which in law is inadmissible. He cited FRN v. USMAN (2012) 3 SC (PT.1) AT 150. He prayed this Court to dismiss this appeal with substantial costs.

RESOLUTION OF ISSUE:

The simple and undisputed case of the Appellant is that he bought the disputed property for valuable consideration from the 2nd Defendant, the mother of the 1st Respondent, acting on the instruction and authority of the 1st Respondent but that the 1st Respondent subsequently rescinded from the transaction on the ground that he did not give the 2nd Defendant the authority to sell the disputed property. To reinforce this evidence, the Appellant has leaned on the admission made by PW1 and the affidavit of Gentle Ehimwenma. The lower Court has rightly and comprehensibly addressed the whole issue at pages 644-645 of the record when it held thus:

On the fact that the lower Court did not take into consideration the admission made by PW1 and the 3rd Respondent that the 2nd Defendant sold the disputed property to the Appellant upon the 1st Respondent’s instruction. The admission relied upon on the part of PW1 …is not that the said witness conceded that he was aware of any instruction having been given to the 2nd Defendant. It is based on the fact of the withdrawal of one Gentle Ehinwenma… from the instant action as the 3rd plaintiff therein.