Emmanuel Uzoma V. Felix C. Okorie (2000)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A. 

This is an appeal from the decision of Njeribeako, J., sitting at the then Imo State High Court, Umuahia. The plaintiff’s claim against the defendant was as follows:

“(a) Declaration that the plaintiff is entitled to the statutory right of occupancy of Plot “B” New Town Layout otherwise known as No.12 Macaulay Street, Umuahia – Ibeku in the Umuahia Judicial Division the subject of grant by the Governor of Imo State of Nigeria.

(b) Order of an account for rents received by the defendant from the tenants who occupied and still occupying the plot and building in dispute and to hand over the balance to the plaintiff.

(c) The sum of N50,000.00 (Fifty Thousand Naira) only as general damages for trespass.

(d) Injunction permanently restraining the defendant, his servants, agents and or workmen from entering into, interfering and or in any way dealing thereon known as and numbered No. 12, Macaulay Street, Umuahia-Ibeku within jurisdiction”.

His case, in a nutshell, was that he bought the plot in dispute from the defendant, who passed the document of title, i.e., the lease the latter had from the Eastern Nigerian Government, in the presence of witnesses after he had paid the full purchase price of ?320. The defendant put him in possession of the plot which he later developed and put tenants in. Then came the civil war and he was forced to abandon it when Umuahia became a battle’97field. After the war the plot was left standing in its damaged and overgrown state until 1981 when the defendant, probably in the belief that the war had consumed the plaintiff, sneaked back into possession. He repaired house and put in tenants against all protest from the plaintiff who, by some providence had survived and come to Umuahia at the right time. He has been collecting rents from the tenants.

The defendant admitted that there were negotiations between the plaintiff and him for the former to purchase the plot. They arrived at the purchase price of ?700.00 out of which he plaintiff paid only ?300 and refused to pay the balance. He denied putting the plaintiff into possession. As far as he was concerned, the transaction had fallen through and so he continued to enjoy the plot.

He invited the plaintiff to collect his money. After hearing the witnesses called by the parties the learned Judge, on 6/11/87, delivered his judgment granting all the prayers sought by the plaintiff. He concluded his judgment thus on page 166 of the record:

“In the final result, in the light of my findings, the plaintiff is entitled to succeed and judgment will be and is hereby entered for him. I declare in favour of the plaintiff title to statutory right of occupancy over the land in dispute i.e. No. 12 Macaulay Street, Umuahia Ibeku within jurisdiction. I make an order for the defendant to give an account of rents received from the property from 1982 till October 31st, 1987. The defendant is allowed 30 days from today to file the statement of account and serve same on the plaintiff. I hereby order perpetual injunction restraining the defendant, his servants and/or agents from any further interference with the said property in dispute i.e. No. 12 Macaulay Street, Umuahia-Ibeku”

After the account had been filed he awarded the plaintiff the sum of N18,100.00 against the defendant being the rents the latter had collected on the property during the relevant period. He awarded costs of N2,500.00.

Aggrieved, the defendant has appealed to this court on two original grounds. With leave of court seven additional grounds were filed on his behalf. The following four issues for determination were formulated in the appellant’s brief of argument:

1. Whether in view of the provisions of Order 42 rule 9 of the High Court Rules then applicable to Imo State, and section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979 the judgment is not a nullity.
2. Whether in view of the accepted oral evidence the trial Judge had made proper appraisal and evaluation of the evidence and rightly found that respondent was entitled to judgment.
3. Did appellant sign exhibits A, B, and K? Are A, B, and K genuine documents?
4. Whether the respondent could be declared to be entitled to statutory right of occupancy in respect of No. 12 Macaulay Street, Umuahia when the appellant’s state lease is subsisting and has not been revoked.”

The respondent’s counsel did not formulate any real issues. What he described as issues are mere subsidiary question arising in the issues formulated on behalf of the appellant. I shall, therefore, decide the appeal on the basis of those issues.

The first point taken by the learned Senior Advocate was that because no oral addresses were taken from counsel for the parties, no address at all could be said to have been taken. This, according to him, is because Order 42 rule 9 of the High Court Civil Procedure Rules applicable in Imo State made provision for oral address and not written addresses. Nor did the 1979 Constitution, then applicable, make any provision for written addresses in the High Court.

If no addresses were taken, then the three-month period within which the court in this case was obliged to deliver its judgment commenced from the date when the evidence of the last witness was taken. The learned Senior Counsel then pointed out that DW6, the last witness in the case, concluded his evidence on 25/3/87. He then drew attention to the date on which judgment in the case was delivered, which was 6/11/87. This being outside the three month limit prescribed by section 258(1) of the Constitution, rendered the judgment a nullity. The judgment, Senior Counsel contended, was not saved by subsection (4), introduced into the section by an amendment, because the denial of the appellant of the opportunity of address had resulted in and occasioned a miscarriage of justice. For all these reasons senior counsel urged us to hold the entire proceedings to be a nullity.

At the conclusion of the evidence of D.W. 6 the court adjourned the case to 22/5/87 for addresses.

Mr. I.F. Ogbuagu, for the respondent, attached to his brief of argument as Appendix I a copy of what he said were the proceedings of 22/5/87, 9/7/87 and 29/7/87. Going by it, on the first of those three dates, both counsel asked for an adjournment to another date. The case was then adjourned to 9/7/87 for address.

On that day defendant/appellant’s counsel informed the court that the plaintiff/respondent’s counsel had filed a written address. The learned Judge retorted that he “did not make an order for counsel to file written addresses.” The plaintiff’s counsel then explained that he had just inherited the case and decided on his own to file a written address. The defendant’s counsel was recorded as saying he was not opposed to file his own. He was then given 14/7/87 to do so. The case was then adjourned to 29/7/87 “for amplification of any points counsel may wish to make.”

On that day, the defendant’s counsel informed the court that he had filed his own brief. He requested and was allowed to make some amendments to it. The case was then adjourned to 30/10/87 for judgment. If all this was correct, then all the elaborate arguments by the appellant’s counsel on the point of being denied the right to address the court has been so much waste of time and material. Even if the Rules of Court had made no provision for the filing of written address, the appellant’s counsel cannot be heard to complain now as he not only willingly agreed to file one, but also in fact asked that he be allowed to do so. In such circumstances, the proceedings cannot be nullified just because the rules have not been strictly compiled with.

The appellant has not filed a reply brief to contend that Appendix I to the respondent’s brief did not reflect the proceedings of the days specified. I have no reason, therefore, not to hold that the appended document represents proceedings of the three days.

Assuming however that it does not, I still cannot agree with the learned senior advocate that the filing of written briefs, in the circumstances, warrants the nullification of the proceedings. It has not been denied, indeed the learned senior counsel made it clear, that a written address was filed on behalf of the appellant. There has been no suggestion that any protest was made on his behalf at this alleged breach of the Rules. I think, therefore, that it is too late in the day to make one now.

All things considered, I see no merit in the issue sought to be made on the appellant’s behalf about the filing of written address instead of making oral addresses.

On the judgment being delivered out of time, there can be no doubt that it was. The matter of addresses were concluded on 29/7/87 when the appellant’s counsel was allowed to make amendments to his own. Judgment was, however, not delivered until 6/11/87. It ought to have been delivered on or before 29/10/87. It was, therefore, out of time by about 8 days.

Subsection (4) introduced into section 258 by amendment stipulates that:-

“(4) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”

This provision shows clearly that the delivery of judgment outside the prescribed period no longer automatically nullifies the proceedings as was the case in the days when Ifezue v. Mbadugha (1984) 1 SCNLR 427; (1984) 5 SC 79, relied on by the appellant, was decided. The words I have italicised show beyond doubt that before a judgment can be set aside for non-compliance, the person pressing for it to be set aside has the onus of satisfying the appellate or reviewing court that the noncompliance has caused a miscarriage of justice to him. As has been seen, the appellant wants the present proceedings set aside because his counsel had been denied the opportunity of addressing the court. We have seen that not only did his counsel have the opportunity of addressing the court, he in fact took the opportunity and addressed the court in writing. He voluntarily elected to address in writing instead of orally. The result is that the appellant has not satisfied me that the judgment under attack by him ought to be set aside for non-compliance with the provisions of section 258(1) of the 1979 constitution.

Issue 1 is resolved against the appellant.

Issues 2, 3 and 4 can be taken together. They raised the purely factual question whether or not, on the evidence before him, the learned Judge was justified in giving judgment for the plaintiff/respondent. The first subsidiary question here is whether or not the evidence before the court justified the Judge’s conclusion that the appellant had effectively transferred his interest in the land to the respondent.

The learned Senior Advocate, for the appellant, submitted that the respondent failed to establish that the appellant had assigned his interest in the disputed plot to him because:-

“The alleged Power of Attorney, Exhibit B were not based on the appellant’s subsisting lease. Furthermore, exhibits A, B and K were all founded on a Deed of Lease which had expired”.

With the profoundest respect to the learned Senior Advocate, I do not see what the fact that the lease on which Exhs. A, B and K were based has expired has to do with the matter in hand. From the argument of counsel, these exhibits had allegedly been made before the expiry of the lease. This is clear from the following passage on p.13 of the respondent’s brief:

“Assuming that Exhibit A is valid document, it is submitted that it was a Power of Attorney granted in respect of and based on a lease dated 15th day of December, 1961 for a term of seven years. The said lease Exhibit C expired in 1968. All Powers of Attorney or assignments made in respect of the title or interest conferred by the lease automatically determined on the expiration of the head lease”.

Even if the head lease expired in the circumstances related by learned Senior Counsel and the assignment to the respondent by the appellant of the latter’s interest automatically determined, what business of the appellant’s one may ask, is it? If he had indeed divested himself of his interests in favour of the respondent before the expiration of the head lease, then the matter can only be between the respondent and the head lessor. The more relevant question, in my view should be whether or not the appellant in fact divested himself of his interest in the plot in favour of the respondent. The learned Judge’s consideration of and conclusions on the point are contained on page 160, line 11 to page 162, line 33:

“In assessing the evidence with regard to the negotiations for the sale of the land in dispute and the putting up a house in the land, certain aspects of the defendant’s evidence stand out in bold relief. They met at Umuahia. Although he did not say where at Umuahia; he told the court those who were present during the negotiations Godwin Onyenze P.W. 3 was present. He is a relation of the defendant. The defendant described him so in paragraph 11 (a) of the amended statement of defence. At the risk of repetition let me reproduce what Mr. Onyenze told the court. He said:-

‘I know the plaintiff and defendant. In 1960s, I remember I connected the parties with regard to a piece of land along Macualay Street, Umuahia. The defendant had that piece of land and intended to sell it. One gentleman call Igbe now late brought the plaintiff to my house and introduced him as someone who was interested in buying the defendant’s land. The defendant was then living at Ikot Ekpene. I sent for him. He and the plaintiff negotiated in my house in my presence. They settle.

It is also clear from Mr. Onyenze’s evidence that the parties fully negotiated and came to a definite agreement…

This piece of testimony was not in the least challenged and I accept it as true. I find as a fact the negotiation was done in the presence of P.W.3 Gabriel Onyenze in Mr. Onyenze’s house. I also find as a fact that indeed it was Mr. Onyenze who brought the plaintiff and defendant together.

It is also clear from Mr. Onyenze’91s evidence that the parties fully negotiated and came to a definite agreement. It was after this agreement that the parties agreed to go to a solicitor to draft an agreement for them. There was not the slightest suggestion that when the parties negotiated in Mr. Onyenze’91s house, a solicitor was there. It was only after they had come to an agreement that the question of solicitor was raised. The plaintiff had intimated that he would pay the purchase price after the necessary documents had been drafted. This was how P.W.3 Gabriel Onyenze put it, “the defendant agreed to sell the land to the plaintiff for ?320’97(N640.00). The plaintiff agreed to pay but said he would do so after the deed of conveyance had been prepared.”

Mr. Onyenze impressed me as a very responsible gentleman and the fact that he is a relation of the defendant did not at all lead him to give biased evidence. Some lesser character, would have studiously suppressed the truth.

I accept the evidence of P.W. 3 and find as a fact that the plaintiff and defendant agreed on a purchase price of ?320’97 (N640.00) for the land. I also accept the evidence that thereafter the parties went to a solicitor’97Mr. Ogwuegbu now a Justice of the Appeal Court who drafted the documents received as exhibit A and B in these proceedings.

The defendant told the court that the plaintiff paid only ?300’97 (N600.00). Plaintiffs evidence amply supported by P.W 3 Gabriel Onyenze who was present when the purchase price was paid, was very clear and I believe it. This was how P.W. 3 put it:’97″In my presence the plaintiff and defendant signed the documents. The plaintiff paid ?320’97 in my presence to the defendant. The defendant was deliberately suppressing the truth. He lied to the court. He accepted the agreed purchase price of ?320 ’97(N640.00) and also singed the document exhibits A and B.

On a preponderance of evidence, the scale tilts very heavily in favour of the following findings i.e. (a) the plaintiff offered to sell the property in dispute to the defendant and the defendant accepted the offer in the presence of Mr. G. Onyenze P.W.3 (b) that the purchase price was fixed at ?320’97 in the presence of P.W.3 (c) that after the parties had agreed they approached Mr. Ogwuegbu to draft the documents exhibits A and B. (d) that both plaintiff and defendant and also P.W.3 Onyenze signed the documents exhibits A and B (e) That the plaintiff fully paid the agreed purchase price of ?320’97 to the defendant in the presence of P.W.3 Gabriel Onyenze. I am satisfied from a preponderance of evidence that the plaintiff has successfully discharged the burden of proof which lied on him to establish the above facts.

I am equally satisfied that after he had received the agreed purchase price, the defendant voluntarily handed to the plaintiff several documents including the original lease which bore the defendant’s name i.e. Exhibit C, and other documents which I will refer to later.

The appellant has not challenged the finding of the Judge that the parties firmly agreed for the sale of the plot to the respondent before going to the lawyer to reduce the transaction into writing. Nor has he challenged the findings that the respondent paid the purchase price and the appellant handed over all the documents of title to him. The only aspect that the learned Senior Advocate has dealt with is the evidence of P.W.3 relating to whether or not Exh A or B or K was signed. Senior Counsel tried to pick holes in the evidence of this witness in this regard. Having regard to the finding that parties had agreed to the entire arrangement and only came to the lawyer to reduce it into permanent form, the arguments here are not very helpful.

Considering the evidence before the court and all the circumstances of the case, I feel very reluctant to interfere with the findings of the learned Judge. If the appellant had not given the document of title i.e., the head lease, Exh. C. to the respondent, how did the latter get them? He tendered them in evidence. Did he steal them? The appellant has not said so. He claimed in his statement of defence that he had left them in the custody of P.W.3, his own relation. The latter however, gave this claim the lie when he testified unchallenged that in his presence the appellant handed them over to the respondent.

The next question is whether or not the house on the plot was built by the appellant before he sold the plot to the respondent or the latter built it after he had acquired it. There is also the question of who was responsible for paying the rates and other bills after the war.

Here again the learned Judge made some unchallenged findings of fact thus on page 163, line 1 to page 165, line 20:

“Was the land vacant when the defendant offered to sell the land to the plaintiff? P.W 3 who brought the plaintiff and defendant together told the court that he knew the land very well and described it as a vacant parcel of land when the defendant sold it to the plaintiff. The evidence that it was a vacant parcel of land was not challenged. I find as a fact that the land was not developed at the time. It was vacant. The next question is who latter developed it?”

To answer the question posed above, I now go to the evidence of the plaintiff, P.W.1, P.W.2 Peter Ebinum P.W. 3 Gabriel Onyenze, the defendant D.W 1 and D.W.4 Gabriel Eze, first, Gabriel Eze D.W. 4. He is the elder brother of the defendant’s wife. He was invited to tell the court that the defendant used to give money to pay the contractor who put up a building for the defendant in the land.

He said that, he saw the building in progress and that it was completed in 1967. The witness struck me as a very irresponsible person. He was merely suborned to support his sister’s husband. He lied to the court. Of course he did not make payments to anybody and the defendant did not give him any amount for any house. It was an extreme act of desperation on the part of the defendant to suborn his brother-in-law to come to court to give false evidence. The defendant did not at all put up any house in the land after he sold it to the plaintiff in 1963.

I accept the evidence of the plaintiff and his witness PW2 Peter Ebinum that plaintiff employed the services of the one R. C. Amobi & Sons who was the employer of P.W.2 at the time to put up his building in the land in dispute. I accept the evidence of the plaintiff and P.W.2 that the house was started in 1964 and completed in 1967. I accept the evidence of P.W.2 and find as a fact that he was the plaintiffs caretaker in the house. He, P.W.2 in fact put in tenants who paid rents to him. I accept the evidence that when Umuahia Town became a war theatre during the civil war all the inhabitants of the town fled for safety. P.W.3 Gabriel Onyenze himself confirmed that it was the plaintiff who put up a house in the land before the outbreak of the civil war and added that there was no trouble at all between the parties then.

Now, the trouble between the parties is traceable to events which occurred after the civil war. It is common knowledge that most of the houses in towns which became war theatres during the civil war were destroyed when Umuahia became a battle ground. For a period of nearly ten years after the end of the civil war the plaintiff was not seen. In the meantime, the Land Office was understandably calling on the defendant to pay land rents. I have used the word “understandably” because after the defendant had sold the land to the plaintiff, the parties did not complete all the formalities to get the lease in the name of the plaintiff before the outbreak of the civil war. The lease therefore still in the name of the defendant. I accept the evidence by P.W.3 Gabriel Onyenze that the defendant sought his advice when the land office made demands for land rent. I accept the evidence by P.W.3 that by a rare stroke of chance he sighted the plaintiff at Etiti as he was returning to Umuahia from his home sometime in 1981. He stopped walked into compound where he sighted the plaintiff and met him. He asked the plaintiff why he had not tried to visit them since the end of the civil war and the plaintiff replied that he was teaching in Bendel State. P.W.3 advised him to see the defendant. Let me pick up the evidence of P.W.3 from that point:

“I advised him to see the defendant and that the defendant was complaining. He agreed to do so. Then I left him. But for a long time he was not seen. The defendant complained to me that the land office was threatening to take the land and that he would reconstruct the building and give it out for rent. This was about 1981. Then I said he could do so. I advised him to keep record of his expenses.

He proceeded to repair the building.”

P.W3 spoke the truth. I believe the above evidence as true. The defendant adopted a completely wrong, strategy in this matter and this lead him to resort to very mean and despicable tactics full of infidelity and dishonesty. There was no need for him to deny the obvious.

If, as the learned Judge found, the appellant had sold the property to the respondent and the latter was responsible for putting up the building on it and for paying the outgoings on it, then it must follow as the day follows the night that the respondent is entitled, as between the appellant and himself, to all the reliefs he sought. In the result I hold that the learned Judge was justified in granting them. The appellant has also complained about the arbitrariness and excessiveness of the costs of N2.500.00 awarded against him. It is true that what the learned Judge took into consideration is not evident on the fact of the record. It cannot, however, be disputed that the case took almost six years to conclude, with many adjournments. Papers had to be filed and counsel had to be transported to and from court. These are matters that a court may take into consideration when fixing the amount of costs without expressly so stating. I think before one can conclude that costs awarded are arbitrary one has to consider all the factors I have highlighted and see whether the amount fixed is justified by them. I do not think that the amount of N2,500.00 was in the circumstances of this case, excessive and the fact that the Judge did not put his reasoning process on paper did not necessarily make his decision on costs arbitrary. In the result this complaint also has no merit.

In the final result, the entire appeal fails and is according dismissed. The decision of the trial court is affirmed in all its ramifications. The appellant shall pay cost of this appeal assessed at N4,000.00

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Other Citations: (2000)LCN/0795(CA)