Salawu Ajide V. Kadiri Kelani (1985)

LawGlobal-Hub Lead Judgment Report

M. BELLO, J.S.C. 

The present Respondent was the plaintiff in the High Court of Lagos State wherein he claimed jointly and severally against the present Appellant and one Karimu Ayinla as the 1st and 2nd defendants respectively for:

“(i) a declaration that the Plaintiff and the Defendants are and remain the co-owners in equity of all that piece or parcel of land situate, lying and being at Awoyokun Street, Odi-Olowo, Mushin District which land is bounded by straight lines joining survey pillars marked DB7, Wk 1752 and Wc 5912:

(ii) an account of all the rents and profits collected by or on the direction of the defendants in respect of the said property from February, 1967;

(iii) an ORDER compelling the defendants to pay to the Plaintiff any money found to be due to the plaintiff after the rendering of such account.

During the trial of the case the 2nd defendant died and the trial proceeded against Appellant only. After having heard the evidence, the trial judge dismissed the claim. The Respondent successfully appealed to the Court of Appeal which set aside the decision of Adebiyi J. dismissing the Respondent’s claim and made the following orders:

“(i) a declaration that the Plaintiff and the defendant are co-owners in equity of all the three storey building with the land situate at Awoyokun Street, Odi Olowo and which is bounded by straight lines joining survey pillars marked DB7, WK 1653, WK 1752 and WC 5912.

(ii) an account of all the rents and profits collected by or and the direction of the defendants in respect of the property since 3rd September 1968, such account to be filed and served on the Plaintiff/Appellant within 3 months from date of this judgment.

(iii) That the Plaintiff shall be a liberty within 6 weeks after service on him of such account to falsify and surcharge same.

(iv) That the High Court of Lagos State do make all necessary and consequential orders, against the defendants including filing of a survey plan of the land in Court and to enter judgment for any amount whatever that is found due to the Plaintiff.”

The Appellant has now appealed to this Court against the decision of the Court of Appeal.

Having regard to the admission made by the Appellant in his pleading that the property in dispute was originally a partnership property and his subsequent change of stand during his testimony that it had never been a partnership property but has always been his personal property, I consider it necessary to set out in full the pleadings of the parties. In his Statement of Claim the Respondent averred:

“2. The Plaintiff and the Defendants together with one Mohammed Nuru Ayuba at one time carried on business in partnership under the business name and style of FOUR BROTHERS STORES.

3. The said business name was duly registered by the Plaintiff and the Defendants are proprietors on 25th April, 1957 under the Registration of Business Names Act but without the said Mohammed Nuru Ayuba who had by then relinquished the of the respondent in the previous suit and the copy of the dissolution agreement which formed part of the proceedings in the said suit to be inadmissible in the circumstances of the present case. The Court of Appeal concluded its judgment with the following observations:

“It is our view that the defendant (now the Appellant) having admitted that the property was at one time that of the partnership he must prove how he became the exclusive owner; see Maji v. Shaft (1965) N.M.L.R. 33 at 36 (Supra ubi).

Further, he cannot be heard to say in his evidence that he bought the property for himself and not for the partnership for he cannot depart from his own pleading: see also Abimbola George v. Dominion Flour Company, (1963) All N.L.R. 71. Further still, the learned trial judge erred to have based his decision on irrelevant considerations which were never in issue namely:

(1) That Plaintiff’s action failed because he alleged that 1st Defendant conducted the negotiations for the purchase of the land but called no witness from the vendor’s side to support his evidence,

(2) Whether or not a house was on the plot when it was purchased or who and when the house was built was never in issue, and

(3) That no effort was made by the Plaintiff to produce a certified true copy of the deed of conveyance of the plot of land which was never pleaded by either of the parties and when in fact, 1st defendant who admitted he had the custody, said it was lost and was never registered in the Lands Registry.

In our view all these questions did not arise for consideration on the pleadings before the court and they were entirely irrelevant. see Lewis & Peat (NRI) Ltd. vs Akhiemien (1976) 7 S.C. 157 and Usenfowokan vs Idowu (1969) 1 All N.L.R. 125 at page 131.

We are of the view that the learned trial judge misdirected himself by raising and considering issues outside the pleadings and if he had rightly directed himself on the pleadings and the evidence before him coupled with his impression that the testimony of the 1st Defendant is unreliable, he would have found in favour of the Appellant. (now Respondent). “(bracket mine).

The Court of Appeal then made the orders which I have set out at the beginning of this judgment.

The Appellant has filed 5 grounds of appeal against the decision of the Court of Appeal. Ground No.2 complained of an alleged error of law by the Court of Appeal in not holding that the trial judge erred in refusing to admit in evidence the original of the dissolution of the partnership agreement on the ground that the document had not previously been put to the Respondent in cross-examination. In his brief, Chief Williams for the Respondent raised a preliminary objection to the ground of appeal No.2 on the ground that the Appellant ought not be allowed to raise on appeal a point, which though pleaded, he did not canvass at the hearing. Furthermore, learned counsel submitted in his brief, that the Appellant did not appeal against the ruling rejecting the document and when the case was on appeal in the Court of Appeal no effort was made to raise the issue on respondent’s notice or by way of cross-appeal.

At the commencement of the hearing of the appeal before us, Mr. Ajayi objected to the propriety of the Chief Williams’ preliminary objection taken in a brief. He contended that Order 2 rule 9 of the Supreme Court Rules 1985 states the procedure a respondent intending to rely on a preliminary objection must comply with and the present Respondent has not complied with the rule. He submitted that a preliminary objection cannot be taken in a brief and urged us not to permit Chief Williams to argue the objection.

Chief Williams responded that Order 2 rule 9 concerns an objection which, if successful, may dispose of the appeal in its entirety. Moreover, he submitted if the rule applies to the objection he had taken in his brief to which Mr. Ajayi also replied in his (Mr. Ajayi’s) brief, there has been sufficient compliance with the rule since no form has been prescribed for the pure pose.

We over-ruled the objection of Mr. Ajayi and permitted Chief Williams to argue his preliminary objection on 25th September 1985 and reserved the reasons for the ruling to be given today. I now state my reasons. Order 2 rule 9 provides:

“9.(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time.

If the respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit. No objection shall be taken to the hearing of an appeal on the ground that the amounts fixed by the Registrar of the court below under Rule 3(1) of Order 7 were incorrectly assessed.”

The object of the rule is to give an appellant before the hearing of his appeal notice and grounds of any preliminary objection to the hearing of the appeal in order to enable him to meet the objection at the hearing of the appeal. The rule is a safeguard against embarrassing an appellant and taking him by surprise. Although no form has been prescribed for taking a preliminary objection under the rule, the fact that the rule requires the notice and the grounds of objection to be filed with the Registrar implies that the notice and the grounds of objections must be in writing.

Now, such interpretation ought to be placed on the rule as will promote its object. I find myself unable to accpet the first limb of the submission of Chief Williams that the rule should be interpreted to limit its scope to a preliminary objection to the hearing of an appeal in its entirety. In my opinion, such narrow interpretation will not promote the object of the rule in respect of preliminary objection to the hearing of an appeal in part. This is so because a preliminary objection to the hearing of an appeal in part may turn out to knock down the substance of the appeal and thereby leaves the appellant to chase the shadow at the hearing of what remains of the appeal. For this reason justice and common-sense require a respondent to comply with the rule to enable the appellant to meet the objection to the hearing of the appeal whether in whole or in part. Accordingly, I hold that the rule applies to any preliminary objection to the hearing of an appeal whether in whole or in part.

However, I agree with the second limb of the submission of Chief Williams that he has complied with the requirements of the rule. His brief set out the notice and the grounds of the preliminary objection to the hearing of the 2nd ground of appeal in meticulous details. The brief was filed with the Registrar on 14th June 1984 and was served on the Appellant. Mr Ajayi filed his reply to the preliminary objection on 5th July, 1984. The appeal came up for hearing on 25th September 1985. It follows that the Appellant had notice of the preliminary objection within the period prescribed by the rule. It was for these reasons that lover-ruled the objection of Mr. Ajayi and allowed Chief Williams to argue the preliminary objection.

In parenthesis, I may point out that Chief Williams successfully argued the preliminary objection which, for the reasons I stated in my ruling of 25th September 1985, I upheld and refused leave to the Appellant to argue the fresh point, to wit the admissibility of the dissolution of the partnership

agreement, which had not been taken in the Court of Appeal.

I now proceed to consider the matters canvassed at the hearing of the substantive appeal.

The complaint of Mr. Ajayi in the main, which in his characteristic manner he argued with vigour and tenacity, relates to the observations of the Court of Appeal that the evidence of the Respondent in the previous suit and the copy of the dissolution of the partnership agreement exhibited in the said suit were inadmissible as a substitute for his (the Respondent’s) evidence in the present proceedings although the evidence could have been used to discredit his testimony. At the previous suit, the Respondent testified that he had signed the copy of the dissolution of the partnership agreement which purported to show that all the assets of the partnership including the three storey building in dispute had been shared among the partners.

Relying on sections 19 and 20 of the Evidence Act and the decision of this Court in Joeiga & Ors. v. Chief Amakiri & Ors. (1976) 11 S.C. 1at page 12, Mr. Ajayi submitted that the evidence of the Respondent in the previous suit together with the copy of the dissolution agreement which formed part of the proceeding in that suit were admissible in evidence in the present proceedings as an admission by the Respondent that he had indeed entered into the dissolution agreement in the terms of the contents of the agreement. Citing Davy v. Garrett (1877-8) Ch. D. 473 at 483, learned counsel contended that an admission is nothing but evidence and the rule of pleadings expressly say that evidence is not to be pleaded.

Mr. Ajayi argued further since the evidence at the previous suit and the exhibit there at are relied on by the Appellant as admission, the Appellant was not obliged to plead either and the trial court rightly admitted both documents in evidence. He said the Court of Appeal was in error in thinking that the decisions in Maji v. Shaft (1965) N.M.L.R. 33 and Alade v. Lawanson Aborishade 5 F.S.C. 167 applied in this case on appeal. Cleverly, Mr. Ajayi avoided to submit that the alleged admission constituted estoppel, though his argument in substance rests squarely on estoppel. He simply said the alleged admission contradicted the Respondent’s pleadings and evidence in the present proceedings that the building in question has not been shared. He concluded that the Respondent’s claim was rightly dismissed by the trial court and the Court of Appeal erred in law in interfering with that decision.

As regards the copy of the dissolution agreement, Mr. Ajayi contended that the document was rightly admitted under section 198 of the Evidence Act to discredit the evidence of the Appellant that he is illiterate. He referred us to page 46 of the record of the proceedings of the case in hand where the Appellant was cross-examined on an unidentified document produced at the previous suit and submitted that was sufficient compliance with the conditions for the admissibility of the copy of the dissolution agreement. He said the Court of Appeal was wrong in holding the document to be inadmissible because it is a photo-copy and not a certified true copy within the contemplation of this Court in its decision on section 96 of the Evidence Act in Minister of Lands v. Executors of Ajao (1969) 1 All N.L.R. 49 at 59.

Mr. Williams Jr., who argued the substantive appeal for the Respondent, contended that the previous proceedings, Exhibits C and D, were inadmissible in evidence because neither had been pleaded. Referring to Alade v. Aborishade (Supra) at page 172, he drew a distinction between a previous proceeding to discredit a witness which, he said, may be admitted in evidence without having been pleaded and a previous proceeding to establish a fact which must be pleaded. He contended that the previous proceeding in the case of Joe Iga & Ors. v. Chief Amakiri & Ors. (Supra) was admitted under section 34(1) of the Evidence Act in that Joe Iga had died and his evidence was admitted in the subsequent suit in which the previous proceeding was specifically pleaded.

With regard to the admissibility of the copy of the dissolution agreement, Mr. Williams submitted that the cursory cross-examination of the Appellant on an unidentified document did not constitute sufficient compliance with the provisions of section 198 of the Evidence Act. He urged us to dismiss the appeal.

From the outset it may be pointed out that, although the trial judge admitted in evidence the record of the previous proceeding together with the copy of the dissolution agreement, he did not refer to either in his judgment and he did not make any use of either. Moreover, in respect of the holding by the Court of Appeal that the copy of the dissolution agreement is inadmissible because it is a photo-copy, it appears that Court did not appreciate fully the evidential quality of the photo-copy as such in the circumstances of the case. The photo-copy was in fact the very document tendered by the plaintiff in the previous suit, now the Appellant, through his witness who testified as follows:

“I prepared the document shown to me. (Note: It is a photo-copy but Mr. Awoyinfa says he has no objection to the document being tendered in evidence. Tendered admitted and marked Exhibit B).”

The Respondent, then the defendant, admitted in his testimony having signed the photo-copy. Exhibit B. As I have already stated, it is the very Exhibit B, not its copy. which was admitted as Exhibit D in the present proceedings. In my view, the law relating to secondary evidence under section 96 of the Evidence Act stated in Minister of Lands v. The Executors of Ajao (Supra) would only apply to a copy of Exhibit B and not to the Exhibit itself. It is obvious that Exhibit B is an integral part of the Respondent’s evidence in the previous suit. Accordingly, the question relating to its admissibility cannot be divorced from the issue on the admissibility of the Respondent’s evidence as a whole which is the only issue for determination in this appeal. That being the case, it is pertinent to reiterate the authorities permitting the evidence given by a party in a previous suit to be admitted in a subsequent judicial proceeding. The authorities may be categorised as follows:-

“(1) Under section 34 of the Evidence Act evidence given by a witness in a previous judicial proceeding, whether the witness was a party or not to the previous proceeding, is admissible in a subsequent judicial proceeding to prove the truth of the facts it states when the conditions specified by the section have been satisfied:

Nahman v. Odutola (1953) 14 WACA 381 at page 384, Alade v. Aborishade (1960) 5 F.S.C. 169 at pages 172-173 and Sanyaolu v. Coker (1983) 3 S.C. 124 at page 155. Section 34 is not in issue in this appeal.

(2) Though admissions are not conclusive proof of the matters admitted, an admission of any fact in issue or relevant fact by a party or his agent, whether the admission was made in a previous judicial proceeding or not, is admissible in a judicial proceeding against or on behalf of the maker under sections 19 to 26 inclusive of the Evidence Act: Joe Iga & Ors. v. Chief Amakiri (1976) 11 S.C. 1 at page 12 and Ojiegbe & Ors. v. Okwaranyia & Ors. (196) 1 All N.L.R. (Part 4) 605 at page 610:

It must be noted that if an admission is relied on as an estoppel, then it must be pleaded: K. Chellaram & Sons v. G. B. Olivant Ltd. (1944) 10 W.A.C.A. 77; Ajayi v. Briscoe (Nig.) Ltd. (1964) 3 All E.R. 556 at pages 559-560 and Chukwura v. Ofochebe (1972) 1 All N.L.R. (Part 2) 514.

(3) Under section 198 of the Evidence Act evidence given by a witness in a previous judicial proceeding is admissible in a sub-sequent judicial proceeding to discredit the witness provided the conditions prescribed by the & bull; section have been satisfied: Nahman v. Odutola (Supra) and Alade v. Aborishade (Supra).”

Now as I have already shown earlier in this judgment, Mr. Ajayi rested his case on sections 23 and 198 of the Evidence Act. His contention in respect of the latter section may easily be disposed of. Section 198 reads:

“198. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him” (Italics mine)

It may be observed that the section gives an option to the crossexaminer. He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to the witness and call his attention to those parts of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in evidence. The cross-examination of the Respondent which Mr. Ajayi relied on as having complied with the provisions of the section may now he examined. It is crisp, cursory and it reads:

“I remember that this year the defendant also sued me in this High Court. Yes, I denied signing a document produced in that case. I said i did not owe him any money. I produce no document in that case which I said I signed. I cannot say if my lawyer produced any document in the case.”

The deposition of the Respondent, Exhibit C, and the photo-copy of the dissolution agreement, Exhibit D, were not shown or read to the Respondent. Consequently, the provision of the section which was a condition precedent to the admissibility of the deposition including the photo-copy of the dissolution agreement had not been satisfied.

It remains to consider the issue on the admissibility of the deposition and the photo-copy under section 23 of the Act as an admission. There is no dispute that the documents are admissible against the Respondent under the section, which reads:

“23. Admissions are relevant and may be proved as against the person who makes them or his representative in interest………….”

The dispute is confined to the issue relating to pleadings. The issue is: whether the documents were admissible without having been pleaded as contended by Mr. Ajayi or whether they were inadmissible under the circumstances of the case because they had not been pleaded.

Mr. Ajayi referred us to Davy v. Garrett (Supra) only to support his contention. He did not refer us to any Nigerian authorities on the issue. The Davy’s case was decided on the interpretation of the then rules of courts in England which specifically provided that only “material facts” but “not the evidence by which those facts are to be proved” were required to be pleaded.

It was held in that case that an admission relied on to support a claim was a matter of evidence which the rule said should not be pleaded. Again, on the construction of the rules, it was said in Muskham Finance Ltd. v. Howard (1963) 1 Q.B. 904 at page 910 that where an admission was relied on as an estoppel, it must be pleaded. The present Order 18 rules 7 and 8 respectively of the Supreme Court Rules 1965 of England are the equivalents of the former rules upon which Davy’s and Muskham’s cases were decided.

It is trite law in Nigeria on the authorities I have earlier cited in this judgment that the defence of estoppel, whether founded on admissions or not, must be pleaded and, if it has not been pleaded, any evidence tending to establish it goes to no issue and the evidence ought to be rejected: Ogboda v. Adulugha (1971) 1 All N.L.R. 86. This is a general statement of the law. Let us see if the High Court of Lagos (Civil Procedure) Rules, 1972, which is the applicable law, make provision for an exception.

Order 16 rule 4 of the Lagos High Court Rules, which is in pari material with Order 18 rule 7 of England, reads:

“4. Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, ….. ” (italics mine)

It is clear from rule 4,-which specifically states that evidence should not be pleaded, an admission relied on as evidence to prove a material fact is not required to be pleaded. For this reason Mr. Ajayi’s submission based on Davy’s case would have been right if the Respondent’s evidence in the previous suit had been tendered for the purpose of proving that the building in dispute had been shared. It was said the evidence was tendered not only for the purpose of discrediting the Respondent under section 198 of the Evidence Act but also for the purpose of stopping him to assert that the building in dispute had not been shared. In my opinion relying on such denial would be tantamount to invoking estoppel as a defence. In the circumstances different consideration arises because Order 6 rule 1 of the Lagos High Court, which is similar to but in broader terms than Order 18 rule 8 of England, provides:

“11. The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Limitation Decree 1966, release, payment, performance, facts showing illegality either by an enactment or by common law, or by the Law Reform (Contracts) Act 1961.” (Italics mine)

It may be observed that although rule II does not specifically mention a plea of estoppel in its specifications for pleadings, I think it is reasonable to infer, at least from the specifications I have italised, that the rule requires facts giving rise to an estoppel to be pleaded. This is particularly so in the case on appeal because the facts relied on to support the estoppel, namely the previous suit, raised an issue of fact which did not arise from the Respondent’s Statement of Claim. By virtue of the provisions of the rule, I hold that it is essential to plead the facts upon which a plea of estoppel is to be supported. Since the Appellant did not plead the Respondent’s evidence in the previous suit, the Court of Appeal was right in disregarding the evidence: Ogboda v. Adulugha (Supra).

Finally, this case is very simple on its pleadings and evidence. The Respondent claimed the building in dispute to be a partnership property. The Appellant admitted that it had been a partnership property but that it later became his personal property by virtue of a dissolution of the partnership agreement as from 3rd September, 1968. From the pleadings of the parties, the law relating to the burden of proof is straight forward. Having admitted the building to be a partnership property, the onus was on the Appellant to prove when it ceased to be a partnership property and became his own. The trial judge, quite rightly in my view, found the Appellant woefully failed to discharge the burden of proof. In the circumstances the trial judge was wrong in dismissing the Respondent’s claim and the Court of Appeal rightly set aside the decision of the trial judge and entered judgment for the Respondent.

The foregoing is the gist of the simple case presented before the trial judge. But it was made very complicated by the introduction of legal technicalities at the hearing of the appeal in this Court. The matter was further compounded by the conduct of the parties in that neither, as was disclosed by the issues canvassed before us, had any respect for the truth. However, courts are bound to decide cases on the pleadings of the parties and admissible evidence.

Accordingly, the appeal is dismissed. The decision of the Court of Appeal is affirmed with N300 costs to the Respondent.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft, the judgment just delivered by my learned brother, Bello, JSC. and hereby give my concurrence to it. My additional comment is only by way of emphasis and the desire to add them arose from the attempt of the appellant to circumvent the pleadings and the evidence. By his writ of summons, the respondent o claimed:

“(1) A declaration that the plaintiff and the defendant are and remain co-owners in equity of all that piece or parcel of land situate, lying and being at Awoyokun Street, Odi-Olowo, Mushin District;

(2) An account of all the rents and profits collected by or on the direction of the defendant in respect of the said property from 1967;

(3) an order compelling the defendant to pay to the plaintiff any money found to be due to the plaintiff after the rendering of such account.”

The plaintiff lost in the High Court and succeeded in the Court of Appeal. The defendants has now appealed to this Court. It is clear from the proceedings that the appellant abandoned the case set out in his pleadings and set up a completely different case in his evidence.

The fact that the property was once partnership property was never an issue raised in the pleadings. It was agreed by all parties that the property was partnership property. The issue raised was whether the property had ceased to be partnership property and has since 1968 September 3rd devolved on the appellant after sharing. This was raised by the appellant who claimed that it became his property on dissolution of the partnership and ceased to be partnership property. Having raised it, the onus of proof lay on him to establish by evidence that the property ceased to be partnership property. That is the law.

However, he claimed in his testimony that the property was never partnership property but his own personal property. Since this was a departure from the pleadings, it went to no issue. Further, the Court will not allow a party to depart from the case set out in his pleadings. See Abimbola George v. Dominion Flour Mills (1963) All NLR. 71.

The plaintiff/respondent has consistently maintained that the house is partnership property. I refer to paragraphs 6 and 8 of the Statement of Claim. Paragraphs 6 and 8 of the Statement of Claim in particular read:

“6. The said land was and remains partnership property;

8. The defendants have been collecting the rents and profits and have not since February, 1967 paid to the plain

tiff his own share thereof’ .

In answer to the above averment, the appellant in paragraphs 3, 4 and 5 of the statement of defence averred:

“3. With regard to paragraph 8 of the statement of claim, the first defendant has been collecting the rent exclusively for himself only as from September, 1968 because as a result of the dissolution of the partnership, the property at Owodunni devolves on the 1st defendant from the 3rd of September, 1968.

4. The defendant avers that the partnership was dissolved by an agreement dated 3rd of September, 1968.
5. The defendant will at the trial plead all the equitable defences such as acquiescence or that the plaintiff indicate (sic) his acquiescence to the agreement of the 3rd of September, 1968 by complying with all the provisions of the said agreement”.

If the appellant had intended to claim absolute ownership, he should have denied paragraph 6 of the statement of claim and pleaded his ownership. Questions are irrelevant if they do not arise for consideration on the pleadings. See Lewis & Peal (KNRI) Ltd. v. Akhimien (1976)7 SC.157; Usenfowokan v. ldowu (1969)1 All NLR.125 at 131.

In the Court of Appeal, learned counsel for the appellant herein then respondent conceded that he did not cross appeal against the ruling regarding the non-admission or rejection of the Dissolution Agreement. In respect of the property, the appellant in his testimony said:

“I know the property at Awoyokun Street. It belongs to me. I do not remember when it was acquired. It was acquired by me for myself alone. I do not know where I kept the conveyance of the property. It was never registered. No means to show that the property belongs to me”

With regard to the question of the admissibility of Exhibit C, (i.e. the proceedings in suit No.LD/1105/72 between the parties, Salawu Ajide and Kadiri Kelani, another case) and Exhibit B therein which was a copy of the Dissolution Agreement (tendered to show the signature of the respondent) and the evidential value of that agreement, my learned brother, Bello, JSC. has given them detailed consideration. It may be observed that the attempt by appellant’s counsel to treat the dissolution Agreement which was an Exhibit in the previous proceedings between the parties Exhibit C as a basis for the appellant’s defence is unholy in view of the rejection of the original of the Dissolution Agreement when tendered to support appellant’s defence. The issue at the point of time when it was tendered in Exhibit C was not whether there was a proper dissolution agreement but whether the signature on a document belonged to the plaintiff or not.

It is obvious that Exhibit C was tendered and admitted in evidence for the purpose of contradicting the evidence of plaintiff and since the conditions set out in section 198 of the Evidence Act was not complied with the Dissolution Agreement therein was inadmissible. See Maji v. Shaft (1965) NMLR.35 at 36; Alade v. Aborishade (1960)5 FSC.167 at 171-173. It is likewise not admissible under section 34 of the Evidence Act and not having been pleaded as estoppel, it is equally inadmissible. Ogboda v. Adulugba (1971) 1 All NLR.68.

In conclusion, it may be observed that when the High Court rejected the original Dissolution Agreement when it was tendered by the appellant in evidence, the appellant never appealed to the Court of Appeal against the ruling. I can therefore find no basis for the appellant’s attempt to found his argument on it in a disguised form in this appeal.

For the above reasons and the reasons so ably set out in the judgment of my learned brother, Bello, JSC., I too will and I hereby dismiss the appeal and affirm the decision of the Court of Appeal. The appellant shall pay the respondent costs in this appeal fixed at N300.00.

A. N. ANIAGOLU, J.S.C.: I had had a preview, in draft, of the judgment just delivered by my learned brother, Bello. J.S.C., I agree with his reasoning and conclusion.

As my said brother has stated in the judgment, the issue in the appeal should have been a very simple one had all sorts of matters not been unnecessarily drawn into the appeal.

Leaving aside the technical objection raised under Order 2 Rule 9 of the Supreme Court Rules 1985 and the issue of pleadings all of which have been E adequately dealt with in that judgment, there remains the simple question of what the attitude of a trial Court would be if faced with two conflicting versions of a party’s case. The appellant in his pleadings (paragraph 3) had admitted that the property in dispute had been partnership property but that it devolved upon him from 3rd September, 1968 after the desolution of the partnership. The paragraph reads:

“3. With regard to paragraph 8 of the Statement of Claim, the first Defendant has been collecting the rent exclusively for himself only as from September 1968 because as a result of the de solution of the partnership the property at Owodunni devolves on the 1st Defendant from the 3rd of September, 1968”.

Although, in evidence-in-chief, the Appellant had admitted that there was a partnership which was terminated in 17, yet he flatly denied, under cross-examination, that the property in dispute was ever partnership property.

He stated:

“FOUR BROTHERS COMPANY has never owned any property conveyed to me as representative of FOUR BROTHERS. I know property at Awoyokun Street. It belongs to me. I do not remember when it was acquired. It was acquired by me for myself alone.”

In civil cases the onus of proof shifts from plaintiff to defendant and vice versa, from time to time, as the case progresses. Called the onus probandi, it rests on the party who would fail if no evidence at all, or nor more evidence as the case may be, were given on either side. It may shift constantly accordingly, as one scale of evidence or the other preponderates: PICKUP v. THAMES INS. CO. 3 Q.B.D. 594; WAKELIN v. L & S.W. Ry 12 App. Case. 41

Sections 135 and 136 of our Evidence Act have codified, in our law these principles. Section 135 provides:

“135. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

For the burdens fluctuating successively as the case progresses until all the issues in the pleadings are dealt with, S.136(1) and (2) enacts that:

“136. (1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

“(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”

The appellant, having once admitted in the pleadings that the property in question was once partnership property, the Respondent did not need to prove that it was partnership property. Rather, the onus shifted to the Appellant to prove that the partnership ownership had ceased, and when. Clearly, on the evidence placed before the trial Court, the Appellant had failed to prove that the ownership of the property in dispute changed hands from the partnership to himself.

Under cross-examination, the Appellant testified that:

“I do not know where I kept the conveyance of the property. It has never been registered. No means to show property belongs to me. The conveyance is my proof.”

It was that conveyance on which he said he relied for his proof of ownership, which he failed to produce, and which he swore he did not know where he kept.

Upon his further admission that the purported conveyance was not registered, ipso facto it could not be tendered in evidence and so, no proof of the conveyance could be made. Faced with these damaging admissions, the trial Court should have no option but to enter judgment against the Appellants. Not having done so, the Court of Appeal was right in doing that which the trial court ought to have done.

As I have already said, I agree with the judgment which my brother Bello, J.S.C., painstakingly got up. I only added this little contribution by way of emphasis.

This appeal must be dismissed and is hereby dismissed. The judgment of the Court of Appeal is hereby affirmed with costs to the Respondent fixed at N300.00

M. L. UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Bello, J.S.C., I entirely agree with the judgment. For the reasons which he has given and the conclusion reached I too would dismiss the appeal with N300.00 costs to the respondent.

C. A. OPUTA, J.S.C.: The facts of this case as set out in the pleadings of the parties are not at all complicated. They were quite simple and straightforward. The Respondent who was Plaintiff in the court of first instance sued the Appellant and one Mohammed Nuru Ayuba (since deceased) for a Declaration and for accounts. The Amended writ of Summons read as follows:-

“Amended Writ of Summons

The Plaintiff’s claim against the Defendants jointly and severally:

(i) a declaration that the Plaintiff and the defendants are and remain the co-owners in equity of all that piece and parcel of land situate, lying and being at Awoyokun Street Odi-Olowo, Mushin District.

(ii) an Account of all the rents and profit collected by or on the direction of the defendants in respect of the said property from February 1978.

(iii) an Order compelling the defendants to pay to the Plaintiff any money found to be due to the plaintiff after the rendering of such account.”

It is not in dispute that the Appellant and the Respondent and M. N. Ayuba (now dead) once carried on business as partners under the business name and style of Four Brothers Store. It is conceded that the property now in dispute was bought by the Partnership and was, while the Partnership lasted, partnership property. It is admitted that the Partnership was dissolved from 3rd September 1968 and the properties of the Partnership were shared out among the partners. The only one solitary issue that arose from the pleadings and that went to trial was:-

Was the land now in dispute given to the 1st Defendant as part of his own share of the partnership property (as the 1st Defendant claimed in paragraphs 3 and 4 of his Statement of Defence) OR

Is the land in dispute still partnership property (as the Plaintiff stoutly claims in paragraph 6 of his Statement of Claim).

The Court of first instance described the Defendant’s evidence as “just a pack of denials” and observed:-

“His evidence at the trial that the Awoyokun Street property was acquired by him and belonged to him exclusively does not support the averment in paragraph 3 of the Statement of Defence”.

Inspite of these strictures and observations; inspite of the apparent conflict between the case of the Defendant as pleaded and his sworn evidence in court; the trial court surprisingly dismissed the Plaintiff’s action, holding:-

“In short, it can be said that the Plaintiff’s case has been so badly presented that nothing can be made of it. It is no consolation to the Plaintiff that the 1st Defendant (the present Appellant) is in my view, a most unreliable person whose evidence ought not to be believed”.

The Plaintiff aggrieved by the above judgment, and rightly too, then appealed to the Court of Appeal Lagos Division. Coker, J.C.A. (as he then was) allowing the Plaintiffs appeal observed at p.85 of the Record of proceedings:-

“The purport of the defence was that although the property was at one time that of the partnership, it has ceased to be so as a result of the sharing of its assets. Once it has been admitted that the property belonged to the partnership at one time, it was for the defence to prove that it has since ceased to be so” and at page 86 the learned justice continued – “Nowhere in the statement of Defence did the 1st Defendant aver that he bought the property for himself exclusively and not for the partnership as he said in his evidence at the hearing”

Concluding his judgment, the court below at p.87 observed:-

“Beside, the evidence of the 1st defendant which the learned trial judge said was unreliable to the effect that he acquired the property for himself alone, goes to no issue. It is our view that the defendant having admitted that the property was at one time that of the partnership; he must prove how he became the exclusive owner; see Maji v. Shafi (1965) N.M.L.R. 33 at p.36. Furthermore, he cannot be heard to say in his evidence that he bought the property for himself and not for the partnership for he cannot depart from his own pleadings”.

The Court of Appeal thus reversed the judgment of the trial court and granted in their entirety all the claims of the Plaintiff.

The 1st Defendant in the court of first instance has now appealed to this Court. I have had the privilege of reading in draft the lead judgment just delivered by my learned brother and presiding justice Bello, J.S.C. and I am in full agreement with all his arguments and conclusions and 1hereby adopt them as mine. From the pleadings of the parties, from the sudden change of front of the Appellant in the witness box, from the finding of the trial court that the Appellant was “a most unreliable person” I wonder how any court of law, equity and justice can decree in favour of such an Appellant as now appeals to this Court.

The original Dissolution Agreement was tendered in the court of first instance but was held inadmissible on the ground that it had not previously been put by the Respondent in cross-examination. In this Court, the Appellant in Ground 2 of his Grounds of Appeal complained of Error in law. The error being that the Court of Appeal was wrong in not holding that the trial Judge erred in law in refusing to admit in evidence the original Dissolution Agreement. Chief Williams, S.A.N., rightly objected to this Ground in his Brief. In Court, he (Chief Williams) argued that though pleaded, the Appellant at the court off first instance pivoted his case on the original exclusive and personal purchase not on devolution consequent to the Dissolution (of Partnership) Agreement. In the Court of Appeal, learned counsel for the present Appellant (then Respondent) showed quite clearly that he was not in the least relying on the dissolution of the partnership agreement as his root of title. Mr. Awoyinfa was recorded at p. 82 of the record of proceedings as arguing:-

“The agreement was not admitted in evidence, there is no cross-appeal against the ruling regarding its non-admission. The Plaintiff has not discharged the onus”.

What was before the Court of Appeal was whether or not the Plaintiff had discharged the onus on him, the unreliability of the Defendant and his sudden summersault notwithstanding. The Court of Appeal found that he had and I am in complete agreement. Once the existence of the partnership was admitted and when it was further admitted that the property in dispute was bought by the partnership, the presumption is that it remained and still remains partnership property until the contrary is proved. In the case on appeal, the Plaintiff now Respondent discharged the primary onus on him at the close of the pleadings. See S. 135 Evidence Act Cap. 62 of 1958. It was for the 1st Defendant to show how the partnership property become his personal property. If he were relying on the Dissolution Agreement as his root of title, it was imperative that he should have cross-appealed against its rejection by the trial court. This he did not do.

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 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/Appellant.

Since the Original Dissolution of Partnership Agreement was not part of the Defendant’s case in the Court of Appeal; and since the aim of an appeal to this Court is to find out whether on the facts, the law and the arguments presented to it, the Court of Appeal was right or wrong in the decision it arrived at, it follows that that rightness or wrongness has to be determined without the Dissolution of Partnership Agreement either in its original form or in its form in Ex.C tendered in another proceedings.

I will now comment briefly on Ex.C, the proceedings in case No.LD/1105/72 in which the dissolution of Partnership Agreement was tendered as Ex. D. The question is for what purpose was Ex.D tendered in Ex. C To answer this question I will merely reproduce the relevant evidence of the 1st Defendant (now Appellant) at pA8 of the record:-

“I heard the plaintiff say he could not read or write or sign his name. I applied for the proceedings and judgment in the previous case LD/1105/72. I produce a certified copy of the said proceedings

tendered (No objection) and admitted as Ex. C”.

Obviously Ex.C containing case No.LD/1105/72 was tendered to show that the Respondent could either read or write or sign his name which one it is – is not quite clear from the record. The technique of confrontation in cross-examination consists in bringing a witness face to face with facts and/or documents, which he cannot possibly deny. Section 198of our Evidence Act Cap 62 of 1958 lays down the proper procedure when confrontation is resorted to. It provides:-

“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing been shown to him, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him” (Italics mine)

The cross-examination of the Respondent (then Plaintiff) is at P.46. It went like this:-

“XXD By Awoyinfa:-

I remember that this year the defendant also sued me in this High Court. Yes, I denied signing a document produced in that case. I said I did not owe him any money. I produced no document in that case which I said I signed. I cannot say if my lawyer produced any document in the case”.

It is obvious from the above cross examination that Section 198 of our Evidence Act had not been complied with before Ex. C. was tendered. Any statement in Ex. C cannot therefore be proof of its contents let alone proof that it was made, or subscribed to, by the Plaintiff/Respondent.

Secondly every document tendered by a party to a case must be tendered with some end in view. The document may be tendered to advance and further strengthen the case of the party who tendered it or adversely to weaken or destroy the case of his adversary. Now what was the case of the Defendant/ Appellant in respect of the property now in dispute It is at p.50 of the Record:-

“I know the property at Awoyokun Street. It belongs to me. I do not remember when it was acquired. It was acquired by me for myself alone. I do not know where I kept the conveyance of the property………I purchased my Awoyokun Street property from one Jimo Oretun”.

No where in the above evidence did the Appellant mention that the property situate at Awoyokun Street now in dispute ever belonged to the partnership of the Four Brothers Company. If that is his case in the witness box – as indeed it was – what will be the relevance of either the Original Dissolution of the partnership Agreement or its counterpart in Ex.C to the Appellant’s claim to title by purchase from Oretun I do not see any at all.

If on the other hand the 1st Defendant/Appellant’s case remained as pleaded then two or three results will follow:-

1. The oral evidence of ownership by purchase from limo Oretun not having been pleaded will be discounted and disregarded as going to no issue: George & Ors v. Dominion Flour Mills Ltd (1963) 1 A.N.L.R. 71: Metalimpex v. A.G. Leventis & Co. Ltd. (1976) 2 S.C. 91.
2. As the parties are adversaries, each one is bound by his case as framed in his pleadings. That being so, the Defendant/Appellant will not be allowed to set up (at the hearing as he did) an entirely different case without any prior amendment to his pleadings: African Continental Seaways Ltd. v. Nigerian Dredging Roads General Works Ltd. (1977) 5 S.C. 235 at p.249.
3. The result of 1 and 2 above is that the case made by the Plaintiff/Respondent at the close of the pleadings had not been challenged at all let alone countered.

As a matter of fact, the proper thing to have been done in this case was for the trial Court to ask the Defendant on whom the onus lay at the close of pleadings to begin: see Sections 135 and 136 Evidence Act. See also Lawrence Onyekaonwu & Ors v. Ekwubiri & Ors (1966) 1 All N.L.R. 32 at p.35. The entire argument of Mr. Ajayi on the issue of the original Dissolution Agreement or its counterpart in Ex. C., though delivered with dogged tenacity and ingenuity, may be laudable for its erudition but neither that argument nor even EX. C can mend a broken case like the Defendant/Appellant’s case which ran contrary to the spirit and letter of the self same Agreement. Any decision on the Original Dissolution Agreement or on the EX. C. will in the final analysis come against the stone wall of exclusive title by purchase as sworn to by the Appellant. Justice is not interested in scoring debating points. The defendant cannot make one case in his pleadings and an entirely different and inconsistent case by his sworn testimony and hope to win on appeal. No, he cannot. That being so, this appeal should be dismissed and I hereby dismiss same accordingly. The decision of the Court of Appeal is also hereby upheld and affirmed. There will be costs to the Respondent which I assess at N300.00.

Appeal Dismissed

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Other Citation: (1985) LCN/2247(SC)