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Emeka Aguocha V. Ezenwa Aguocha (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an appeal against the decision of Kaduna State High Court of Justice, delivered by Makeri, J., granting all the reliefs respondent claimed and dismissing the appellant’s counter-claim.

The plaintiff’s claim endorsed on the writ of summons he caused to be issued against Ochi Aguocha reads as follows-

“1. A declaration that the deed of discharge dated 19/6/86 and drawn up by Mrs. Eunice E. Aguocha, the legally appointed trustee and executrix of the said Will, sharing and distributing the properties of late Mr. Victor Ihueze Aguocha to the beneficiaries in accordance with the provisions of the said Will is effective and that same took effect on the 19th day of June, 1986.

2. A declaration that the ownership of the developed piece of land at Plot G.17 Argungu Road, Kaduna, vests in the plaintiff as stated in the said deed of discharge.
3. An injunction restraining the defendant by himself, his agents/servants or privies, whomsoever and howsoever from laying claim to ownership of the said plot G.17 Argungu Road, Kaduna.
4. Rendering an account to the plaintiff by the defendant in respect of the rents he has and is still collecting in respect of the premises as per his rates, that is, N25.00 per room per month and N70.00 per shop per month from 19/6/86, until the determination of this suit.”

The same reliefs were repeated on the statement of claim. The second plaintiff died in December, 1990 and was consequently struck off the suit.

The appellant herein, without securing amendment of the plaintiff’s claim, sought and obtained joinder as second defendant by an order of court made on 2nd April, 1996. The second defendant on being joined to the suit filed his own counter claim against the plaintiff along with his own statement of defence. In the counter-claim, the second defendant claimed as follows;

“Where upon the counter claimant counter claims against the plaintiff and 1st defendant as follows-

(a) A declaration that the distribution of the estate of late Mr. Victor Aguocha effected vide agreement of 7/5/80 is valid and subsisting.

(b) A declaration that the purported deed of discharge made by Mrs. Eunice Aguocha dated 19/6/86 is ultra vires, null and void and of no effect whatsoever.

(c) A declaration that there being no further subdivision of the properties shared to his mother’s kitchen (sic), the ownership of the property situated at G.17 Argungu Road, Kaduna, vest in him in trust for him and the 1st defendant as he is the head of the family/kitchen pending further subdivision between him and the 1st defendant.

(d) An order directing the 1st defendant to render a satisfactory account of all the rents he has been collecting on the property G.17 Argungu Road to him.

(e) An order of perpetual injunction restraining the plaintiff, his servants, agents, privies, successors in title whomsoever claiming through him from laying any claim to the ownership of the property situated at G.17 Argungu Road, Kaduna.

(f) An order of perpetual injunction restraining the 1st defendant, his servants, agents, privies, successors in title whomsoever claiming through him from laying claim to the sole ownership of the property at G. 17 Argungu Road, Kaduna.”

The learned trial Judge concluded his judgment after rejecting the second defendant’s counter-claim, as follows-

“To this end, I uphold the submission of S.C. Okolo Esq. and reject the submission of P.C. Chukwuma Esq., learned Counsel for the 2nd defendant. The case for the plaintiff succeeds and I accordingly make the following orders as sought by him to wit:

1. A declaration is made that the deed of discharge dated 19-6-86 and drawn up by Mrs. Eunice E. Aguocha, the legally appointed trustee and executrix of the said Will sharing and distributing the properties of the late Mr. Victor Ihueze Aguocha to the beneficiaries in accordance with the provision of the said Will is effective and that same took effect on the 19th day of June, 1986.
2. The declaration is made that the ownership of the developed piece of land at Plot G.17 Argungu Road, Kaduna, vests in the plaintiff as stated in the deed of discharge.
3. An injunction is made restraining the defendants by themselves, their agents/servants, privies whomsoever and howsoever from laying claim to the ownership of the said plot G.17 Argungu Road, Kaduna.
4. An order is made for the rendering of an account to the plaintiff by the 2nd defendant in respect of the rents he has and is still collecting in respect of the premises as per the rates. That is N25.00 per room per month and N70.00 per shop per month from 19/6/86 to the determination of the case.”

The first defendant, apart from filing a statement of defence, failed or refused or neglected to adduce evidence in support of his statement of defence. The learned trial Judge rightly, in my view, deemed it as abandoned. He has not appealed. The second defendant the propriety of whose joinder is seriously in doubt as there was never a claim against him has now appealed to this court on 7 grounds of appeal.

Briefs of argument were accordingly filed and exchanged in accordance with the provisions of the Court of Appeal Rules, Order 6 rules 2 and 4 thereof. The exchange was settled at appellant’s brief, appellant’s reply and respondent’s briefs of argument. At the hearing of the appeal, learned counsel for both parties adopted their respective brief or briefs of argument. There was no argument in elaboration or elucidation of the respective brief of argument. In each brief, issues calling for determination were identified. The appellant framed the following issues for determination-

i. Whether the learned trial Judge properly assessed and evaluated the totality of the evidence adduced by both sides at the trial, considered and made findings on all the relevant and material issues canvassed and raised by the parties both in their pleadings, evidence and address? Ground 1 of the grounds of appeal.

ii. Whether the learned trial Judge was right in rejecting exhibit 3 without stating any reason or evaluating its evidential value. Ground 2 of the grounds of appeal.

iii. Whether exhibit 3 (the agreement of 7/5/80 sharing the landed properties (sic) of the estate of late Mr. Victor Aguocha among the beneficiaries in the Will) is valid and subsisting as opposed to exhibit 2 (the deed of discharge made at the trustee’s discretion distributing the landed properties (sic) of the estate of late Mr. Victor Aguocha? Grounds 3 and 5 of the grounds of appeal.

iv. Whether the respondent proved his entitlement to the property at G.17 Argungu Road, Kaduna on a preponderance of evidence? Ground 4 of the grounds of appeal.

v. Whether the plaintiff (respondent) has any claim against the 2nd defendant (appellant) to warrant the order made against the appellant by the learned trial Judge? Ground 6 of the grounds of appeal.

vi. Whether the judgment is against the weight of evidence? Ground 7 of the grounds of appeal.”

On the other hand, the respondent formulated only two issues in response to appellant’s 6 issues. The 2 issues read as follows –

i. Whether the judgment of the trial court is proper and supported by the pleadings and evidence before it grounds 1, 4, 6 and 7.

ii. Whether the trial court was right in holding that exhibit ‘2’ (deed of discharge) is valid as opposed to exhibit 3 (the agreement of 7/5/80) grounds 2, 3 and 5.

Learned Counsel for respondent, even though formulated two issues, nevertheless canvassed them together. One is therefore left with the problem of fishing out arguments from the respondent’s brief and matching them with the relevant portion of the appellant’s brief. Appellant’s issue i and vi could be taken together while his issue (ii), (iii) and (iv) would be taken together. His issue (v) will be separately considered.

I propose to take appellant’s issue v separately and firstly. It is not only an intriguing issue, it is equally an interesting one. In this issue, appellant is complaining against the order made against him. Learned Counsel for appellant contended that it is trite that a court can only award what is claimed by a party before it. It is apt for better appreciation of the points arising from this issue to read the entire argument proffered on behalf of the appellant in his brief of argument.

The argument reads thus-

“In this case on appeal, on the appellant being joined as the 2nd defendant in this case, the respondent served him with a writ and statement of claim contained at pages 19-24 of the record in paragraph 1 of the statement of claim at page 22 of the record, the respondent averred thus –

1. The plaintiff avers that he has no claim against the 2nd defendant and that the 1st defendant shall hereafter simply be referred to as “the defendant”.

The claim for injunctions and rendering of account in items 3 and 4 respectively of paragraph 12 of the statement of claim were made against “the defendant”.

Learned Counsel thereafter submitted that reliefs 3 and 4 granted at p.111 of the record by the learned trial Judge against the defendants and the 2nd defendant respectively have no basis, as they were not the claim of the respondent before the court. Counsel therefore implored the court to set aside the Orders and allow ground 6 of the grounds of appeal.

On this issue, learned Counsel for respondent submitted that by virtue of section 14 of the Interpretation Act, 1990 there is no singular or plural in law. It was further submitted that the first defendant had been representing the appellant in all issues relating to the trust property and claimed the property for both himself and the appellant just in the same manner appellant claims in the instant proceedings.

There is no substance, in the circumstance of this appeal, in the submission of the learned Counsel for respondent predicated upon Interpretation Act. The substance of the appellant’s submission is that the orders could not respectively be properly made against him because the respondent had no claim against him and that the orders could have been directed at the defendant and not the defendants and 2nd defendant respectively. Be that as it may, I believe the appellant’s complaint is merely adroit but not candid. The respondent instituted an action against a defendant, one Ochi Aguocha on 2nd May, 1989 and on 2nd May, 1996, exactly seven clear years later, the appellant got an order of the court joining him to the action when neither the writ of summons nor statement of claim was amended to justify the joinder. Not only did he impose or force himself on the plaintiff, respondent herein, he counter-claimed against him. The first defendant who has not appealed against the decision did not adduce a shred of evidence in support of his statement of defence. The appellant strenuously contested the action by testifying himself and calling witnesses in addition to producing documentary evidence in support of his own defence and his counter claim. Is it not too late in the day to let him off the tentacle so lightly?

I should think so. He cannot be blowing hot and cold at the same time. A party cannot pray for joinder and lead evidence pursuing that suit, after he had been joined, in the trial court and on appeal only to make an about turn in pursuit of the direct opposite of what he stood for in the court below. See Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248, 269 where Supreme Court stated –

“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings; then turn summersault during the trial; then assume a nonchalant attitude in the Court of Appeal; only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the present defendant. See also Ikeanyi v. ACB Ltd. (1991) 7 NWLR (Pt.205) 626.”

With his two eyes wide open and assisted by counsel, he sought and obtained joinder for himself, it would rather be unjust for him now to hide behind some technicalities and get off the hook after putting the respondent and the court to great expense in cash and kind-precious time wasted. This is not only a court of law but it is also a court of equity. It is not a place for scoring cheap debating point. Appellant made a tactical move, which had boomeranged. Would appellant have complained if he had succeeded in his legal chicanery? I do not think so. Although, it is not on all fours with the case of Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118, where the respondent, at the trial court, failed to proffer evidence and rested his case on the plaintiff’s case. Judgment was thereby entered against the respondent, on appeal to the Court of Appeal, respondent sought and obtained leave to tender evidence, which were available at the time of trial but were not produced in evidence. The appellant, being dissatisfied with the order of the Court of Appeal allowing additional evidence to be called by the respondent, at that stage, appealed to the Supreme Court which set aside the decision of the Court of Appeal allowing for further evidence to be adduced. At page 140 of the report the Supreme Court per Craig, JSC, said;

“In my experience, a decision not to call evidence has always been regarded as a legal strategy, not a mistake. If the strategy succeeds, then it enhances the case of that party; but if it fails, such litigant cannot ask for leave to adduce further evidence in order to repair his damaged case. It seems to me that if every party who makes a wrong choice of that nature is allowed to repair his case in this way, there will be no end to litigation.

The legal maxim is interest reipublicae ut sit finis litium.”

(Italics mine)

Finally, on this issue, if the request of the appellant is acceded to it will merely liberate him only to institute a fresh action, which may result in multiplicity of action. It is a settled principle of equity that there should be an end to litigation. In exhibit 5, suit No.KDH/108/83 the first defendant represented their paternal grandmother to sue the mother of the plaintiffs in respect of the same cause of action. Also in suit KDH/190/86, exhibit 4 herein, their grandmother, first and second defendants and the mother of the defendants sued the mother of the plaintiff in connection with the same estate. In each of the action instituted for or by the plaintiffs including the appellant’s counter claim in the present suit, the appellants have always prosecuted or resisted the suit on the ground of their mother’s kitchen or branch. In the circumstance, I am firmly of the view that the appellant and the first defendant are privies being brothers of full blood and having fought the suit jointly in the past. The point I have been driving at is vividly brought home by paragraph 2 of the appellant’s counter claim where he averred as follows –

2. The counter-claimant states that the 1st defendant is his junior brother of the same parents and has been representing him and acting for and on their behalf in all family matters especially matters relating to the distribution of their late father’s estate due to the nature of his (the 2nd defendant) work.

By virtue of sections 54 and 55 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990, a judgment is binding on the parties as well as their privies. Sections 54 and 55 of the Evidence Act provide as follows-

“54. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

“55. (1) If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.

(2) Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”

The term “parties” includes not only the parties named on the writ of summons but also “privies” to such parties. A “privy” is a person whose title is derived and who claims through a party. See Ababio v. Kanga (1932) 2 WACA 253, F.A. Odiete & others v. O. Okotie & others (1973) 1 NMLR 175. There are three categories or classes of privies, viz –

(i) privies in law

(ii) privies in blood, and

(iii) privies in estate.

Examples of first class of privies are executors and administrators of estate, of the second category are blood relations such as ancestors and heirs and of the third group are vendors and purchasers: See Shola Coker & others v. Rufai Sanyaolu (1976) 9 – 10 SC 203, 223.

In the circumstance, the appellant, who is a privy of the first defendant and had featured in all actions including the present action, either as representative of their grandmother or their deceased brother is bound by the order of the court. Notwithstanding that the reliefs sought were against the first defendant, they are binding on him and all his privies, including the appellant once such reliefs are acceded to by the court as in the instant appeal. Setting aside the orders as presently constituted is a mere sophistry or cosmetic.

In case I am wrong, without so deciding, it follows that appellant was a busy body or interloper who had no business with the proceedings in the trial court because the respondent had no claim against him and did not mince words. It follows that the appellant’s counter-claim is equally incompetent since counter-claim is required to be a cross-action: United Bank for Africa Plc. v. Samba Petroleum Co. Ltd. (2002) 16 NWLR (Pt.793) 361, 389 – 390. In other words, his statement of defence and counter-claim should be struck out since he was improperly joined to the action and could only appeal against the order made against him personally as a party whose interest is affected under section 243(a) of the Constitution and not as of right.

The answer to appellant’s issue v is positive and ground 6 of the grounds of appeal from which it is distilled fails and is dismissed.

On appellant’s issues ii, iii and iv, learned Counsel for appellant contended that learned trial Judge had a duty to determine all issues raised in a matter and give reason or reasons for its decision and that a judgment of a court in a civil case must show a clear resolution of all the issues that arise for decision in the case. Learned Counsel cited the case of Obimiami Brick and Stone Nig. Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt.229) 260, 299; Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369, 383 and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616, 629. Learned Counsel also contended that exhibit 3 was the main hub of the appellant’s defence to the respondent’s claim and his counter claim but the learned trial Judge treated and dismissed exhibit 3 at page 109 of the record. Learned Counsel, after reading what the learned trial judge said on exhibit 3, went on to further contend that the appellant and Court of Appeal are left to speculate why exhibit 3 was rejected. Learned Counsel then went on to submit that exhibit 3 with its background predating exhibit 2 and the entire evidence from the defendant’s witnesses (with exception of DW3) leading to the making of exhibit 3 not being challenged nor successfully discredited it is not right for the trial Judge to disbelieve such evidence without giving sufficient reason for doing so.

I agree with the submission of learned Counsel for respondent to the effect that appellant’s submission that learned trial Judge failed to give reason for the rejection of exhibit 3 is devoid of substance.

In this connection learned trial Judge reasoned as follows-

“I have carefully gone through these pleadings and the evidence led by the plaintiff and the 2nd defendant and I have gone through the Will exhibit 1 and exhibit 2 the deed of discharge and having regard to the burden of proof, I am quite satisfied that the evidence of the plaintiff is cogent and credible as such is acceptable. I therefore accept the evidence as proof of his pleading touching exhibits I and 2 and reject the evidence of 2nd defendant. As for the 1st defendant since there is no evidence in support of his pleadings, this is deemed abandoned as such goes to no issue, same is discountenanced. In view of the expressed provisions of exhibit 2 which I accept and rely upon to be the correct state of affairs as to the trust property, exhibit 3 therefore cannot be relied upon as I attach no weight to it at all.

The end result of this is that plaintiff has discharged the burden of proof placed on him by law as to the validity of exhibit 1 and the subsequent discharge of the trust property as per exhibit 2 dated 19-6-86. The agreement in exh. 3 is therefore declared null and void and of no effect whatsoever.

Having declared exhibit 3 to be invalid, I cannot uphold the submission of Chukwuma Esq. to the effect that the trustee became functus officio after exhibit 3 has been executed and thus became incompetent to act effectively as trustee. The authority of Ademola v. Shodipo (supra) and Kodilinye’s book. An introduction to equity in Nigeria cited by Chukwuma, Esq. is of no assistance to his case same is discountenanced.”

On the discretionary power of the trustee and executrix as contained in exhibit 1, I reject the submission of learned Counsel for the 2nd defendant to the effect that the trustee had no discretion regarding the distribution of the estate property. I also reject the assertion that the trustee discretion is or was limited to power to sell and maintain.

The 2nd to the last paragraph is as follows-

“I hereby declare that my trustee will make special provision for the education and maintenance of my daughter as regards her training overseas. I hereby also, declare that my trustee shall have absolute discretion on how much of such income will be to the maintenance of any of the said beneficiaries.”

Last paragraph goes further to provide:-

“I give, device and bequeath all the rest residue and remainder of my estate property and effects whatsoever and whether real or personal into my trustee upon trust to sell, call in and convert the same into money with power to postpone such sale calling in and conversion for such period as my trustee without being liable for loss may think proper, and such shall be used in the interest of the beneficiaries…”

It is the law that where the provision of any document is clear and unambiguous they shall be given their plain and natural or literal meaning. The court cannot import its own interpretation into clear and straight forward terms of an agreement or contained in a document.

It is therefore very clear that the trustee/executrix has the powers conferred upon her as per the terms of exhibit 1. I have already held that it was valid and legally binding to the total exclusion of exhibit 3. On a very careful consideration of all the evidence before me and he submissions of learned Counsel in support of same, I have come to the conclusion that the evidence of the plaintiff is truthful and credible and is therefore acceptable. I believe his evidence and that of his witnesses and will accordingly act on same. I disbelief the evidence of the 2nd defendant and reject same. Counter-claim is dismissed.” (Italics mine)

On the portion of the judgment set out above, I think the submission of the learned Counsel for the appellant that the learned trial Judge failed to ascribe any reason for his decision is not only seriously erroneous, but also misconceived. Learned Counsel for appellant, in the appellant’s brief rightly, in my view conceded that acceptance of exhibit 2 tantamounts to rejection of exhibit 3 and vice versa. At page 16 of the said brief learned Counsel stated as follows-

“The issue of the respondent’s claim of entitlement to the disputed property at G.17 Argungu Road, Kaduna, on the deed of discharge, exhibit 2, which is his main claim can be resolved by a consideration of the admissibility of the evidence or sufficiency of the evidence tendered by the respondent vis-a-vis his pleadings and the validity of exhibit 2 based on the state of the law. The determination of the appellant’s main counter-claim. is inextricably linked to a determination of the respondent’s main claim as the invalidation of exhibit 2 will entail the upholding of exhibit 3 which sustains the appellants counter claim.” (Italics mine)

And, if I may add the invalidation of exhibit 3 will entail the up-holding of exhibit 2. At page 17 of the appellant’s brief, learned counsel reiterated the above submission as follows-

“A great part of the evidence from the appellant and legal arguments on his behalf were directed at establishing the validity of exhibit 3 and if upheld, the respondent’s claim will invariably be dismissed while the appellant’s counterclaim will in the main be upheld.”

Learned Counsel again failed or refused to face the consequence of his submission not being accepted and the converse is accepted. Learned Counsel at page 28 of the appellant’s brief after again properly or correctly conceding to the right and powers of the trustee and executrix, Mrs. Eunice Aguocha under exhibit 1 and the law of trust went ahead to submit as follows-

” …the main thrust of appellants challenge to the grant of the disputed property made to the respondent by the trustee vide exhibit 2 are that in view of the subsistence of exhibit 3 following the clear words of exhibit 1 and the position of the law on trust the trusteeship of Mrs. Eunice Aguocha had been determined since 7/5/80 …”

These submissions are predicated apparently on ignorance of existence of exhibit 5 which is in respect of action brought for and on behalf of appellants grandmother, Madam Elechi Aguocha by her grandson, Ochi Aguocha in suit No. KDH/108/83 on 18/12/83 against Mrs. Eunice E. Aguocha, the trustee/executrix. In the judgment, S.U. Mohammed, C.J. (as he then was) and of blessed memory observed as follows –

“The provision of exhibit 2 which forms the subject matter of this suit is that touching on “the maintenance of my mother Madam Elechi Aguocha …”

It is the plaintiff’s case that the defendant has not performed the task imposed on her by the will. In other words, the plaintiff has alleged that the defendant has not done anything to maintain her. She therefore in paragraphs 11 and 12 of her statement of claim prays for the following reliefs against the defendant:-

“The plaintiff spends on the average, the following amount of money every month for the upkeep of herself and her household:

(i) Food N109.00

(ii) Medical expenses 92.00

(iii) Clothing & Laundry 32.00

(iv) Househelp & Attendants 45.00

(v) Household Equipment & Materials 31.80

Total 310.80

That the total amount now due and unpaid to the plaintiff for the period from December 1971 until now is N42,793.80.

Whereupon, the plaintiff therefore seeks an order that the defendant shall pay to the plaintiff the said sum of N42,793.80 being the total cost of her maintenance since the death of Mr. Victor Aguocha – the testator on December, 1971, with interest at 10% per annum.

(ii) An order that the defendant shall, for as long as she remains executrix & trustee of the said will continue to pay for the maintenance of the plaintiff until her death at the rate of N10.00 per month.

(iii) General damages for breach of trust…” (Italics mine)

Clearly, this suit in which first defendant sued for and on behalf of their grandmother belies the existence of exhibit 3 on 18th December, 1983. The first defendant apart from bringing the action for their grandmother in a representative capacity also testified as the second plaintiff’s witness. Mrs. Grace Aguocha mother of both defendants also testified as the third plaintiff’s witness. There is, therefore, no substance in the submission of the learned counsel for appellant that exhibit 3 pre-existed exhibit 2.

The defendants brought another action KDH/190/86, exhibit 4 wherein they sought the following reliefs:-

“Whereof the plaintiffs claim against the defendant:-

(i) An account of all trust monies and properties vested in the defendant on trust for the beneficiaries by the said will.

(ii) A declaration that the said purported discharge of the trusteeship is unfair, unequitable, incompetent null and void and ultra vires the powers of the defendant under the trust and should accordingly be set aside.

An interim injunction and a perpetual injunction restraining the defendant or her servants, and or agents or privies or any other person or persons from enforcing the terms of the said inequitable deed of discharge of trusteeship.

An order distributing the funds, monies and properties of the said trust and estate in a fair and equitable manner.”

This action is ominously silent on the distribution purportedly done on 7/5/80. If there were such distribution as per exhibit 3, was this not a wonderful opportunity for the appellants to bring it out? Rather, they were merely calling for a fair and equitable distribution of the estate in 1986 without alluding to the purported distribution as per exhibit 3 which is claimed to be earlier in time. This suit was withdrawn and struck out. Although, exhibit 6 indicated that the suit therein KDH/35/79 was adjourned to 13/6/80, on 6/5/80 for settlement. There is nothing on record showing that settlement was arrived at. On 13/6/80 one Miss Ojong appeared for both parties, plaintiffs and defendant, to announce to the court that:-

“The matter has been settled. We ask that the matter be struck out.

Court: The suit is struck out.”

The terms of settlement was not filed in the court not to talk of making it part of the judgment of the court.

I agree with the submission of the learned Counsel for appellant that the court was bound to act on unchallenged and uncontradicted or uncontroverted evidence placed before it. But the court will only act on unchallenged and uncontroverted evidence if they are credible Ikuomola v. Oniwaya (1994) 4 NWLR (Pt. 146) 617, 624, Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79,81, Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322; (1961) All NCR, 917 and Omoregbee v.Lawani (1980) 3 – 4 SC 108, 114 and Nsirim v. Omuna Construction Co (Nig.) Ltd. (1994) 1 NWLR (Pt. 318) 1.

I also agree with the learned Counsel for appellant that this court has power indeed duty to disturb the findings of fact of the learned trial Judge on the authority of Slee Transport Ltd. v. Oluwasegun (1973) 9-10 SC 7; (1973) NSCC 470 and lkuomola v. Oniwaya (supra) cited in the appellant’s brief. But finding of facts is the business of trial court and where the trial court has made a finding of fact on evidence adduced before it the appellate court should not disturb such finding if supported by evidence – See Oil field Supply Centre v. Johnson (1987) 2 NWLR (Pt.58) 625; (1987) 5 SC 310, Okafor v. Idigo (1984) 1 SCNLR 481; (1984) 6 SC 1 and Ebba v. Ogodo (1984) 1 SCNLR 372 and Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, 524 – 525. There is, in my respectful view, abundance of evidence, as just amply demonstrated on record, showing that exhibit 3 has no evidential value and was properly rejected or discountenanced by the trial court.

Before I am through with the evidence adduced before the learned trial Judge, it is proposed reading evidence of first defence witness, Ahanonu, on the sharing of the estate of Victor Aguocha which was purportedly enshrined in exhibit 3. The witness was the appellant’s counsel in exhibit 6. He testified inter alia as follows:-

“…but on 6/5/80 when it was listed for hearing I came here with a staff of Ohuhu Community Secondary School-Aluko Olokun Esq. who was the counsel for Eunice informed me he was not ready for the hearing but instead we should settle the matter out of court.

Based on the agreement for out of court settlement he asked for an adjournment for parties to settle out of court

…In all four properties were available to the beneficiaries which I divided into 2 – Adamawa/Gwari Rd as one lot while G. 17 Argungu Rd Kaduna and 20 Cameroon Street Umuahia as another- making two lots Eunice and her children chose Adamawa/Gwari Road here in Kaduna. G.17 Argungu Road Kaduna & 20 Cameroon Umuahia went to Grace Aguocha and her children 1st and 2nd defendants in this matter plus others but were not mentioned in the will. The sharing of this was in writing made by Barrister Asika which was filed as the judgment of the court. I learnt that Asika prepared the agreement but did not file it before the court. The suit adjourned to June 80 = was later struck out as parties were said to have settled.”

The 1st defendant later sent me a copy of the agreement. I have seen exh. 3. It is l copy of what was sent to me.”

The evidence of this witness is inherently contradictory; in one breathe he said that the agreement was filed in court and in another he gave a hearsay evidence that he “learnt that Asika prepared the agreement but did not file it before the court”. The agreement which was purportedly made on 7th May, 1980, was not available to be brought to or filed in court on 13th June, 1980 when the proceedings contained in exhibit 6 was struck out on ground of an alleged settlement. As I observed earlier in this judgment, that same agreement was not made an issue in either exhibits 4 and 5 which are proceedings initiated by the appellants and his privies at a date subsequent to the purported coming into existence of exhibit 3. Exhibit 3, in my respectful view, is suspect. Its coming into existence is shrouded in mystery. The production of exhibit 3, which was purportedly signed by Mrs. Eunice Aguocha trustee/ executrix surprisingly after her death reinforces my doubt about the authenticity of exhibit 3.

Finally, on this point, the learned Counsel for appellant in exhibit 6 and the first defence witness in this suit, Ahanonu, failed to demonstrate where he derived his authority to preside over and distribute the property comprised in the estate of Mr. Victor Ihueze Aguocha from, when he testified that:-

“In all, four properties were available to the beneficiaries which I divided into 2 lots – Adamawa/Gwari Rd as one lot while G.17 Argungu Road Kaduna and Cameroon Road, Umuahia, as another.”

The appellant has equally not justified the legality of first defence witness, Ahanonu, apportioning part of the estate to Grace Aguocha and some of her children who are not beneficiaries under the device. The distribution is therefore tainted with illegality. The distribution of the estate to some people who are not beneficiaries is, respectfully contrary to the intention of the testator. What happened to the other property enumerated by appellant when he testified as fourth-defence witness:-

1. G17 Argungu Road, Kaduna
2. II 1 & 2 Adamawa Road, Kaduna
3. No. 13 Gwari road, Kaduna
4. NK 13 Arochukwu Road, Kaduna
5. No.20 Cameroon Road, Umuahia
6. A property at Diobu, Port Harcourt
7. A family House at Amaogwugwu in Umuahia, Abia State.

First defence witness was ominously silent on items 4, 6 and 7 but exhibit 3 which was allegedly prepared pursuant to the agreement presided over by first defence witness provided that item 7 be kept as family house. Since exhibit 3 is not exhaustive, as it has just been observed, could it determine the trust provided for in exhibit 1. From the evidence led particularly by first defence witness as well as exhibit 3 itse1f, it seems to me that the exhibits is inchoate. There is no evidence on record that when all the children were sui juris they unanimously put an end to the trust and compelled the trustee to hand over the estate to them. In his book “An introduction to Equity in Nigeria 1975 1st Edition,” cited by learned Counsel for appellant, in the appellant’s, book, the learned author, Kodilinye stated at p. 133 of the book as follows:-

“But although the beneficiaries may not control the trustees whilst the trust is in existence, if they are all sui juris and together absolutely, they may, acting unanimously put an end to the trust and compel the trustees to hand over the trust property. This is known as the rule in Saunders v. Vantier (1841) 4 Bear 115) where the court refused to enforce a trust to accumulation in which no person but the sole beneficiary, who was sui juris, had any interest. (Italicising mine)

The learned authors of Snell’s Principles of Equity in the 28th Edition at pp. 232 – 233 stated the law as follows:-

“Although, the beneficiaries cannot in general, control the trustees while the trust remains in being or commit them to a particular dealings with the trust property, they can, if sui juris and together entitled to the whole beneficial interest, put an end to the trust and direct the trustees to hand over the trust property as they direct; and this is so even if the express provisions for the determination of the trust.”

(Italics mine)

And Halsbury Laws of England 3rd Edition paragraph 1491 at page 883 is equally unequivocal on the right of cestui que trust to determine the trust when acting together. It states as follows:-

“Where all the actual or possible cestui que trust are in existence and sui juris they may together put an end to the trust in whole or in part or discharge a trustee therefrom; this right exists notwithstanding an intervening discretionary trust, if the sole objects of that trust are sui juris and concur.”

(Italics mine)

These authorities were cited in the appellant’s brief of argument but ironically they do not seem to support his case. Before cestui que trust that is, the beneficiaries could exercise their power to bring the trust to an end they must all be sui juris. There is no dispute on that point. They were at the time material to the dispute sui juris. They must also be together and demand unanimously that the trustee terminates the trust and hand over to them either part or the whole trust. There is no iota of evidence proceeding from the appellant that all the beneficiaries were together in asking for determination of the trust. Both exhibit 6, which is the source of the so-called settlement and exhibit 3, itself do not bear out this fact. On the two documents the contest is usually between the trustee and the children of Grace Aguocha that is the appellant and his sibling. I am reinforced in this view by the fact that Mrs. Eunice Aguocha the trustee/executrix allegedly signed exhibit 3 on behalf of her children where Ochi Aguocha signed for his brother, the appellant. It is, therefore, not a joint document by the beneficiaries demanding that the trust be determined and handed over to first defence witness for distribution. See also Law of Trusts Bankruptly and Administration of Estate by M.I. Jegede 1st “Edition page 229 and Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251, 274.

On the other hand, the respondent as first plaintiff witness gave evidence that the trustee/executrix shared the property mentioned in the will on 19/6/86. She did the division on the application of Obi Aguocha, the youngest beneficiary on his attaining the age of 26 at the time the application was made. The conduct or act of the executrix appears supported by the last paragraph of the will, exhibit 1 which provides inter alia as follow:-

“The trust shall come to end on application of any of my children who is a beneficiary in this Will when the youngest of my children mentioned as beneficiaries shall have attained the age of 21 (Twenty one) provided that adequate provisions are made for the maintenance and upkeep of my mother Madam Elechi Aguocha and my wife Eunice should any of them then be living”

The termination of the trust at the instance of Obi Aguocha warranted the coming into effect of exhibit 2. Before exhibit 2, there was no application to the executrix/trustee to determine the trust rather she was dragged to court as per exhibit 6. The summon in exhibit 6 is not before the court to enable me know the nature of the claim therein. Even if it were I am respectfully of the opinion that it would not qualify as the application envisaged in exhibit 1. It is therefore, clear to me on the authorities that exhibit 3 has no basis for legality when compared with exhibit 2 prepared by the executrix in the presence of all the beneficiaries. The first plaintiff witness testified to this.

Issues (ii), (iii) and (iv) in the appellant’s brief are resolved against the appellants and grounds 2, 3, 4 and 5 deriving from fail and are thereby dismissed by me.

I am now to consider appellant’s issues i and vi together. The last issues to be considered and resolved together are appellant’s issues I and vi. These issues touch upon evaluation of evidence as well as the general or omnibus ground. As shown in the course of writing this judgment most of the evidence material to the determination of this appeal are documentary and also that a judgment would not be set aside unless it is not supported by evidence: Atanda v. Ajani (supra). There is sufficient material evidence before the court to justify the conclusion arrived at and there is no accusation of the learned trial Judge erroneously admitting or rejecting evidence and there had been no allegation of wrong appraisal of facts leading to erroneous conclusion.

The crux of the appellant’s complaint, therefore, is the style adopted by the learned trial Judge in the writing of the judgment. A trial Judge is free to adopt his own style so far as it is reflected in his judgment that his views are true reflection of evaluation of evidence adduced by both sides of the disputes. The principles stated in Mogaji & others v. Odofin (1978) 4 SC 91, 94 and Bello v. Eweka (1981) 1 SC 101 have been expatiated upon in Amokomowo v. Andu (1985) 1 NWLR (Pt.3) 530. In that case, the Supreme Court held that the demand in Mogaji’s case requiring that evidence be weighed on an imaginary scale, is not an inflexible principle. It is sufficient if it is manifested that the trial Judge, in the final analysis, did consider the evidence of both parties then the judgment would not be interfered with. At page 538 of the report, Uwais, JSC (as he then was) observed as follows:-

“Although, I accept that each Judge has his own peculiar style of writing judgment, it is clear from the decision of this court in Mogaji’s case that a trial Judge must be careful in his style not to evaluate the plaintiff’s case before reviewing the defendant’s evidence. A review is, of course, a narration in precise form of the material evidence adduced by each party to a case in support of its pleadings. It is after the review that all the evidence available in the case, that is adduced by both parties to the dispute get evaluated. In other words, all the evidence will then be placed on an “imaginary scale” in order that the trial Judge may determine the preponderance of evidence.”

The learned trial Judge after reviewing the submissions of the learned Counsel for the parties and the evidence adduced then proceeded to determine the legality of exhibit 2 vis-a-vis exhibit 1. Having found that exhibit 2 was properly made by the trustee/executrix considered exhibit 3, the rival document, incompetent and rejected that exhibit. The learned trial Judge did not, therefore, rely so much on the oral testimony adduced by the parties but on the validity of the documents.

On the omnibus ground, the consideration for the ground of appeal is that when the judgment is against the weight of evidence, postulates that there was no evidence which if accepted would support the findings of the trial Judge or the inferences, which he had made. For the ground to succeed the appellant “must do more than show that his evidence was as possible as the evidence of a rival”. See Mba Nta & Ors. v. Ede Nwede Anigbo & Anor (1972) 2 ECSLR 306; (1972) 1 All NLR (Pt.11) 74, 80. There is evidence on record, as demonstrated in this judgment, supporting both the findings of and inferences drawn by the learned trial Judge in his judgment.

In the result these issues are also resolved against the appellant; consequently the grounds of appeal from which they were formulated fail and are dismissed. All the grounds of appeal having failed and dismissed the appeal equally fails and is dismissed. I affirm the decision of the learned trial Judge with costs which is assessed at N5,000.00 in favour of respondent.

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Other Citations: (2004)LCN/1620(CA)