Olatunbosun Odejide V. Madam Olaide Fagbo (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A.

This is an appeal by the defendant/appellant against the judgment of Oye Iyanda, J., sitting at the High Court of Osun State, Ile-Ife in suit No. HIF/171/92 which was delivered on the 4th of December, 1996. The facts of this case briefly put were as follows:

The plaintiff/respondent’s claim against the defendant/appellant was for N122,940.00 special damages for alleged conversion of her building materials to wit: sands, gravels and blocks (see pages 11-12 of the record of proceedings hereinafter referred to as the record).

The plaintiff claimed that the said building materials were deposited on her land between 1981-1984. She claimed further that the land measuring 120 ft x 100 ft was bought in 1976 from her vendor, one Kamoru Ayoade. She claimed further that she lost her title to this land via the Ile-Ife High Court judgment, (exhibit D2), in 1986 in which her vendor, Kamoru Ayoade was the defendant and one Oba Famodun, the Owa of Igbajo was the plaintiff in which judgment her vendor lost his title to the land. The defendant/appellant, in 1988, bought six plots of land from Oba Famodun, the Owa of 1gbajo.

The latter gave him exhibit D2, a copy of the Ile-Ife High Court judgment in his favour as evidence of ownership and exhibit D1, as purchase receipt (see pages 24-25 and 43-63 of the record). The defendant/appellant denied ever converting the plaintiff/respondent’s building materials and that he bought all the materials he used to erect his fence on the land. Issues were thus joined by the parties. Plaintiff/respondent called 3 witnesses and gave evidence (see pages 30, 31, 32, 33, 35 and 36 of the record). The defendant did not call any witness but gave evidence for himself (see pages 36-38 of the record). Judgment was entered for the plaintiff/respondent in the sum of N59,000 being the current market value of her blocks and N1,000 cost was awarded in her favour.

Dissatisfied with this judgment, the defendant/appellant filed two different notices of appeal dated 12/12/96 and 6/1/97 respectively (vide pages 64 and 66-68 of the records) to this Honourable Court.
From pages 66-68 of the records, the defendant/appellant (hereinafter referred to as the appellant) filed 3 grounds of appeal.

From the grounds of appeal the appellant herein formulated the following five issues for determination in this appeal, viz:
“1. Whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record.
2. Whether there are material contradictions in evidence adduced by the plaintiff and her witnesses, and if yes, whether they rendered the evidence unreliable.
3. Whether the learned trial Judge wrongfully received in evidence, exhibits P2, P3, P4 and P5 which are purchase receipts of some blocks when the same were not specifically pleaded.
4. Whether the learned trial Judge wrongfully rejected purchase receipt of certain building materials dated 4/8/99, 28/8/88 and 30/8/88 as exhibits, and if yes, whether the refusal materially influenced the judgment against the plaintiff.
5. Whether the plaintiff/respondent has discharged the burden of proof from the totality of the evidence adduced by her and her witnesses.”

The respondent’s counsel also formulated three issues from the grounds of appeal which but for framing and the language used boil down to the five issues raised by the appellant in the appellant’s brief.

These are:
“1. Whether it was a fact that the plaintiff/respondent deposited some building materials on the site as found by the learned trial Judge.
2. Whether the trial Judge properly evaluated the evidence in support of the plaintiff/respondent’s claim.
3. Whether the exhibits tendered by either side were properly received in law and or properly rejected in law.”

For purposes of this judgment, I shall use the appellant’s five issues which have incorporated the three issues in the plaintiff/respondent’s (hereinafter referred to as the respondent) brief. Be that as it may, both learned counsel to the parties have filed their briefs of argument on behalf of their respective clients. On 14/4/03, when this appeal came before us for hearing, learned counsel to the appellant, Mr. A. L. Akintola informed the court that the case was slated for that day and the respondent’s counsel, who had filed herein the respondent’s brief, had been duly served with the hearing notice for that date, is absent. He urged the court to invoke the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hear the appeal.

Learned counsel thereafter adopted and relied on the appellant’s brief filed herein on 23/12/97. He urged the court to allow the appeal and set aside the judgment of the lower court. After his submission, the court observed that the respondent’s counsel was personally served on 4/3/03 with the hearing notice to appear in court on that day (i.e. 14/4/03) and he was absent. Having filed the respondent’s brief, the court invoked the provision of Order 6 rule 9(5) of the Court of Appeal Rules to hold that the said respondent’s brief filed herein on 10/3/98 be deemed as having been adopted and the appeal deemed as having been duly argued.

I have considered the submissions of both learned counsel to the parties in this appeal as contained in their respective briefs of argument vis-a-vis the records and the prevailing law. I shall now give my views on them. In this regard, I shall take issues 1 & 3 together to be followed by issues 2 & 5 and conclude with issue 4 as contained in the appellant’s brief. On issues 1 & 3, which centre on whether the award of N59,000 special damages against the defendant for conversion is supported by evidence on the record and whether the trial Judge wrongfully received in evidence exhibits P2, P3, P4 & P5 which were purchase receipts of some blocks, when the same were not specifically pleaded, both learned counsel to the parties addressed us copiously in their respective briefs. Learned counsel to the appellant on issues 1 & 3 submitted by way of summary on paragraph 5.0 on page 12 of the appellant’s brief and urged the court to hold that the award of N59,000.00 could not be supported by evidence. The available evidence exhibits P2, P3, P4 & P5 are not direct and not specifically pleaded.

Learned counsel urged the court to expunge them from the records as they had failed to prove the actual number of blocks that were allegedly converted by the appellant. Learned counsel urged the court to set aside the award of N59,000.00 special damages and N1,000.00 cost awarded against the appellant.

By way of reply, learned counsel to the respondent by way of summary on page 7 of the respondent’s brief on the admissibility of exhibits P2, P3, P4 & P5 submitted that the learned trial Judge was right when he stated at page 59 of the record that:
“But what I accept as proof of the number of blocks on the land is the total number of blocks written in the four receipts of purchase of blocks exhibits P2-P5 tendered by the plaintiff in her evidence on oath before this court at page 60, lines 4-5 of the record of the proceedings in this appeal, the trial Judge stated that but I must stress that although the plaintiff claim for blocks, sands and gravel, she tendered receipts for blocks only and this is what I can act upon.”