Robert Enajite Ughutevbe V. Dr. Owodiran Shonowo & Anor (2004)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

One of the issues for determination in this appeal is, whether the court below was right to have held that the trial court was wrong to have struck out the reply of the 1st respondent to the amended statement of defence filed by the appellant in the trial court. The other question that also falls for determination among other issues raised in this appeal is, whether the court below was right to have held the view that the property in dispute which was bought in the name of the 1st respondent by his father, was meant to be a gift for the future advancement of the 1st respondent.

The facts leading to this appeal arose when the 1st respondent, Dr. Owodiran Shonowo as plaintiff commenced this action against the appellant’s father as the 1st defendant and the 2nd respondent (2nd defendant) the Registrar of Titles of the Lands Registry in the Lagos State High Court.

Following the order for pleadings, the 1st respondent with the leave of court filed an amended statement of claim. Similarly, the appellant filed an amended statement of defence. The 1st respondent upon being served with the amended statement of defence filed a reply thereto. At the trial, the 1st respondent gave evidence in his own behalf and the appellant also called witnesses in support of his defence against the action.

Briefly the case for the appellant is that his late father, Dick Ughutevbe bought residue of the leasehold interest held by Chief M.A.K. Shonowo, the father of the 1st respondent in respect of a piece or parcel of land with registered title No. MO.1050 at No.1 Omode Lane, Apapa. Appellant acknowledged that it was the name of the 1st respondent that the father of the 1st respondent, Chief M.A.K. Shonowo, wrote in the document of purchase when appellant’1s father bought the property. The Deed of Lease in respect of the property, MO.1050 was executed on 20th November, 1969 following the payment of the sum of N10,000 to Chief M. A. K. Shonowo for the property which he had bought from one Abdulahi Mohammed for N4,000 and was executed on September 3, 1959. Following the purchase of the property and with a registered title deed dated 7th January, 1970, Dick Ughutevbe was put in effective possession of the land. From then on he claimed that he exercised maximum rights of ownership over the property, which he claimed was sold to him by the father of the 1st respondent who told him at the time that the property was his and he was therefore free to deal with it as he wanted. It was in that belief that appellant bought the property which was clearly registered in the name of 0.0. Shonowo and which he subsequently knew to be the 1st respondent, the son of Chief M. A. K. Shonowo.

On the other hand, the case of the 1st respondent may be put thus. It is not in dispute that the 1st respondent is the son of Chief M. A. K. Shonowo now deceased. The 1st respondent stated that when he was about the age of 14 years, and was still at school, his father, Chief M.A.K. Shonowo, bought the property in dispute for him. His father paid for the property and he signed the document relating to its purchase. This document he identified as exhibit A and it was signed in the presence of his late father. At the time of the purchase, 1st respondent claimed that his father told him that he bought the property for him because he wanted his first child to go to secondary school at that time. And his father added that he was very happy with him because he was doing well. His father also told him that the rent that would be collected from the property would be used for the maintenance and education of the 1st respondent. And when he finished his education, the property would be there for him to live in as his residence.

1st respondent claimed that that was how matters stood until he went to the U.S.A. for his further education at the Harvard Medical School in Washington. He did not return to Nigeria until 1971 when his father died. He stayed for only a month for the burial. He denied that he signed exhibit B, with which the property was purportedly transferred to the appellant. He added that he did not execute the transfer of the document nor did he authorise anyone to execute same on his behalf. Following enquiries he made at the Lands Registry in Lagos, he commenced this action against the appellant and the 1st respondent. At the conclusion of the trial, the learned trial Judge found against the 1st respondent in respect of his claims. But before then he had struck out paragraphs 4 – 7 of the amended reply. This is because the court formed the view that they offended against Order 16 rule 12 of Lagos State High Court (Civil Procedure) Rules, 1972 in that they raised a new ground of claim inconsistent with the appellant’s previous pleading.

However, I think it is desirable to refer to that portion of the judgment of the trial court where the learned trial Judge stated what would have been his decision if the aforesaid paragraphs 4, 5, 6, 7 of the amended reply had not been struck out by him. It reads:

“The conclusion I reached above results from the findings I had earlier made on the amended reply whereof I struck out its paragraphs 4, 5, 6 and 7. If therefore I was wrong on that finding, the presumption of advancement canvassed by the learned Senior Advocate for the plaintiff would be upheld by me of acts or declarations before or at the time of the father’s purchase of the property by virtue of exhibit A in 1959 in the name of the plaintiff or immediately after it, to constitute a part of the transaction which is admissible to show that the plaintiff’s father intended a resulting trust. Subsequent declarations and acts of which evidence abounds from the defence are inadmissible in evidence to rebut the presumption of advancement. Again, similar dealings or the course of business practice that the plaintiff’s father collected rents on the property are irrelevant. I would therefore have found in favour of the plaintiff and would have given judgment in terms of his reliefs.”

As the plaintiff was clearly dismayed with the judgment and the orders of the trial court, he appealed to the court below. The court below in a well considered judgment overturned the judgment of the trial court, and restored as the judgment of the court the judgment which the trial court stated that it would have given, had it not struck out paragraphs 4, 5, 6 and 7 of the amended reply filed by the plaintiff. The 1st respondent, having lost in the court below, has now appealed to this court. He shall from henceforth be referred to as the appellant, while Dr. Owodiran Olushola Shonowo shall be referred to as the 1st respondent and the Registrar of Titles as the 2nd respondent.

Pursuant thereto, the appellant filed two briefs, namely an appellant’s brief which was followed by a reply upon the receipt of the 1st respondent’s brief. The 2nd respondent did not file any brief. In the said appellant’s brief, four issues were identified for the determination of the appeal. The 1st respondent in the brief filed on his behalf adopted these issues as proper for the determination of the appeal. The issues as settled though prolix, read thus:

“(1) Whether the learned Justices of the Court of Appeal were right when they held that Order 16 rule 12 of the Lagos State High Court (Civil Procedure) Rules on ‘reply’ was not offended by paragraphs 4, 5, 6 and 7 of the plaintiff/respondent’s amended reply and that the learned trial Judge was not entitled to raise suo motu and without hearing the parties on the propriety or otherwise of those paragraphs before striking out those paragraphs from the amended reply.

(2) Whether the Court of Appeal was not in error in allowing the plaintiff/respondent’s appeal by departing completely from the issues canvassed by the patties on appeal and framing completely new issues and claims for the plaintiff/respondent.

(3) Whether the Court of Appeal did not misconceive and in the process did violence to the issue of presumption of advancement having held that “it was manifest that … the appellants sold the property to the 1st respondent and that the deed was not executed by the appellant. In addition to these, the learned trial Judge made a finding of fact not contested on this appeal, that it was the appellant’s father who had signed the appellant’s name in the deed of transfer exhibit B made in favour of the 1st respondent … The applicable law is free from doubt even though its application from case to case has not been free from complexity …”