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:
- 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.
- 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.
- 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:
- 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.
- 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.
- 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.”
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.
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.
…Whatever reason Gentle might have given for withdrawing from the instant case in which he was a party upon its inception, in any Court process brought for that purpose and simply parroted by PW1, definitely cannot amount to anything in the absence of the process in which Gentle gave the reason, being tendered as documentary evidence before the Court. The settled position of the law…is that a document itself is the best evidence of its content… ln any event, it is simply tenuous to embark on inferring that PW1 conceded to anything in his evidence as it relates to Gentle, when the Appellant did not consider it appropriate to have called the said Gentle as a witness to testify to the fact that the 1st Respondent to his knowledge gave their mother authorization to sell the disputed property… In respect of the alleged admission by the 3rd Respondent… all that I can say is that if learned Counsel had read the portion of evidence which he quoted with an open mind, he would have seen that the 3rd Respondent admitted nothing therein. In fact, the evidence in question is clearly of no use to the extent that it is nothing more than hearsay…
On the affidavit evidence of Gentle Ehimwenma, admitting that the 1st Respondent verbally empowered the 2nd Defendant to sell the disputed property to the Appellant, it is clearly on the record that Gentle Ehimwenma was not called by the Appellant as a witness. Even if the so-called affidavit of Gentle Ehimwenma is to be considered as fresh evidence by this Court, it cannot help the case of the Appellant. Moreover, since Gentle Ehimwenma was not called as a witness, the said affidavit cannot be used or considered. This point was reinforced by Per JOHN INYANG OKORO, JSC, in DR. CHIKE ONYEKWULUJE & ANOR v. G.B ANIMASHAUN & ANOR (2019) LPELR-46528(SC) (PP. 34-35, PARAS. C-E), when he held:
With regard to failure of the Appellants to call Raji Babatunde Animashaun and Henry Afolabi Ladner to give evidence for them regarding Exhibit H, the question on my mind is, what is the consequence of failure to call the said Raji Babatunde Animashaun and Henry Afolabi Ladner, the makers of Exhibit H (the lease), to testify on behalf of the Appellants? Could the testimony of Raji Babatunde Animashaun have made any difference to the outcome of the appeal at the Court below?… I agree with the submission of the Respondents that the Appellants being the party relying on Exhibit H, they have a legal duty to call the makers of the exhibit in trial, especially since the non-existence of Exhibit H was in issue. Failure to call the makers Raji Babatunde Animashaun and Henry Afolabi Ladner was fatal to the Appellant’s case and I so hold.
All that the Appellant has been labouring to do is to establish that there was authority or consent of the 1st Respondent to the 2nd Defendant, his mother, to sell the disputed property. Whether the 2nd Defendant was the agent or representative of the 1st Respondent, the title to the land does not lie in her but in the 1st Respondent. Of course, land can be sold or transferred through an agent but the authority and subsequently the root of title must be ascertained and traced to be genuinely that of the grantor. Where the person with real and genuine root of title denies, the purchaser for value has bought nothing since the agent or the supposed and alleged authority to sell has been denied and faulted.
The Appellant in the instant appeal by his counter claim did not prove title but laboured to demonstrate that he bought the disputed property through the 2nd Defendant as authorized by the 1st Respondent, the real owner of the property. Where land is sold through another or an agent, in order to avoid such disputes, it is expected that such should be in writing, although it can be by parol where it is not disputed and confirmed to be so by the real owner or grantor, but not as in the present case. This is what Sections 67 (1) and 79(1) of the Property and Conveyancing Laws of Bendel State, Section 4 of the Statute of Fraud, Section 5(2) of the Law Reform (Contracts) Law Cap. 114 of Lagos State, Section 40(1) of Law of Property Act, all partly seek to remedy. The laws have helped contracting parties to rely on what are considered technical defences. See Per EMMANUEL OBIOMA OGWUEGBU, JSC, in PATRICK CHIEKE v. IYABO OLUYEMISI OLUSOGA & ANOR (1997) LPELR-845(SC) (PP. 16-17, PARA. D-D).
It is therefore safer that even where an agent such as the 2nd Defendant, the mother of the 1st Respondent, was authorized to sell plot 20B Dawson lane, Benin City, it ought to have been in writing. Such written authority or consent should have been demanded and relied upon by the Appellant. An agent who is to transfer title in a property on behalf of his principal must be appointed by deed. In other words, an agent appointed to execute a deed must be appointed by a deed (power of attorney). An agent cannot dispose of interest in land unless he is appointed in writing. See per Iguh, JSC, in VULCAN GASES LIMITED v. GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G. (G.I.V.) 2001 9 NWLR (PT. 719) 610. In fact, the lack of written authority or consent is the unfortunate and inevitable reason that we have this matter waded to this Apex Court. By the records, the disputed property was managed by the 3rd Respondent and not the 2nd Defendant. For the Appellant to bypass the 3rd Respondent, who managed the said property and buy same from the 2nd Defendant, without due diligence and carefulness, is to invite trouble and buy a lawsuit.
Of course, ownership or declaration of title may be established through documents of title duly executed, such as conveyance, mortgage and sale. However, has the Appellant been able to prove this ownership of the disputed property by the alleged deed of transfer? Has the 2nd Defendant good title to transfer to the Appellant? The answer is in the negative. The production of Exhibit L, the Deed of Transfer, dated 1/6/2004, by the Appellant, claiming he bought plot 20B, Dawson Lane, Benin City, does not suffice to prove his title and ownership of the disputed land. It does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including: – (i) Whether the document is genuine and valid; (ii) Whether it has been duly executed, stamped and registered; (iii) Whether the grantor has the capacity and authority to make the grant; (iv) Whether the grantor had in fact what he purported to grant, and (v) Whether it had the effect claimed by the holders of the instrument. See Per SYLVESTER UMARU ONU, JSC, in PRINCE NGENE v. CHIKE IGBO & ANOR (2000) LPELR-1987(SC) (Pp. 26- 27, paras. E-B). See also Per MUSDAPHER, JSC, in BENEDICT OTANMA v. KINGDOM YOUDUBAGHA (2006) LPELR-2821(SC) (PP. 23 PARAS. D) and Per OGUNDARE, JSC, in MRS. LYDIA OMOWARE THOMPSON & ANOR v. ALHAJI JIMOH AROWOLO (2003) LPELR-3240(SC) (PP. 67 PARAS. D). Per IGUH, JSC, in PRINCE NGENE v. CHIKE IGBO & ANOR (2000) LPELR-1987(SC) (PP. 31-32 PARAS. F) clarified this issue thus:
It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land. Accordingly, the plaintiff to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet; meaning that, no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case, the defendant did not concede the ownership of the land by the plaintiffs grantors but expressly denied the same.
It is obvious that the 2nd Defendant is not the owner of plot 20B, Dawson Lane, Benin City, with power and right to sell same to the Appellant. Hence, cannot transfer or give title/ ownership to the Appellant. Besides, there is absolutely no evidence of appointment in writing or through power of attorney by the 1st Respondent that the 2nd Defendant, his mother, should sell or transfer the title of plot 20B, Dawson Lane, Benin City, to the Appellant. Thus, the sale or transfer to the Appellant must be voided, since the Appellant has not acquired any title whatsoever. This issue is resolved against the Appellant. The appeal fails and is hereby dismissed. I award no costs.