⦿ CASE SUMMARY OF:
Agnes Emecheta V. A.U. Ogueri & Anor. (1997) – CA
⦿ LITE HOLDING
⦿AREA OF LAW
A.U. Ogueri & Anor.
(1997) JELR 45447 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The appellant as plaintiff took out this action against the defendants (now respondents) jointly and severally, at the Aba High Court.
The claims of the plaintiff as contained in paragraph 18 of the Statement of Claim were as follows:- “(a) A declaration that the purported sale of the property registered as 84/84/626 Enugu (now Owerri) by the 2nd defendant to the 1st defendant by public auction is null and void. (b) An injunction restraining the 1st defendant and/or his agents from ejecting the plaintiff from her residence at No. 26 Okigwe Road, Aba part of the property registered as 84/84/626.”
Pleadings were ordered, filed and duly exchanged by the parties to the suit.
At the hearing, the plaintiff who gave evidence, tendered some documents and called one witness. The defendants, also, gave evidence at the hearing and tendered some documents. After hearing the parties and their counsel, Jonah Johnson J., in a reserved judgment delivered on 22nd October, 1991 dismissed the suit with costs.
Dissatisfied with the judgment, the Plaintiff, now Appellant, has appealed to this Court. The Further amended Notice of Appeal contains eight grounds.
1. Was the sale of the property in dispute by the second defendant/respondent valid?
2. Did the plaintiff/appellant have the capacity to maintain the suit?
3. Is the Plaintiff/Appellant estopped by her own conduct from challenging the sale of the property in dispute?
4. Is the judgment of the court supported by the evidence before it?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is not enough for the learned Senior Advocate of Nigeria to raise the matter of non-compliance at the address stage. I would like to say also that it is settled law that a declaration cannot be made in favour of a person who has acquiesced in the matter.
ii. By Exhibit G, the appellant and her solicitor applied to the 2nd respondent for the balance of the proceeds of the auction sale and applied to the court below through her said solicitor for the said balance of the auction to be paid to the appellant and other beneficiaries. The order of the court is at pages 65-66 of the record. The Appellant herein was the sale applicant. The order of the court was for the balance to be paid to the Applicant now the Appellant within 14 days. It seems to me that the Appellant having accepted the validity of the auction sale by applying to be paid part of the proceeds of sale cannot turn round to ask for a declaration to be made in her favour that the same auction sale was invalid. It should be noted also that the appellant’s attempt to impugn the sale on the ground of non-compliance with the Auctioneers Law regarding seven days notice is misconceived.
iii. I hold that the issue of non-compliance with the Auctioneers Law which is a question of fact did not arise from the pleadings and even if it did, such alleged non-compliance cannot nullify a sale to a bonafide purchaser for value like the 1st Respondent in this appeal.
2. ISSUE 2 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It seems to me that the trial court was incapable of looking at Exhibit C, hence the conclusion arrived at by the lower court that it was incapable of conferring locus standi on the appellant is well founded. It must be noted that the appellant had the onus of producing a Will duly admitted to Probate and properly sealed with the seal of the court. The appellant did not do this and thus lacked locus standi to bring the action.
ii. Exhibit ‘C’ the alleged Will is clear that the appellant was not the Executrix and as such the action was very incompetent.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I have no iota of doubt in my mind that in the face of Exhibits F and G and the barefaced lies of the appellant, it was impossible to reach any other conclusion than that reached by the lower court. As borne by the record the appellant was silent when the question above was put to her. The maxim of the Law is “silence means consent” See Iga v. Amakiri (1976) 11 SC. 1 at p. 12. The learned trial Judge held that there was no evidence before him that the balance of the proceeds of the auction sale was still standing in the credit of the deceased’s estate and when this is taken along with Exhibit G and P, it was most logical to presume that the appellant had collected the money. See section 151 of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is not in doubt that Exhibit ‘D’ demonstrates (a) That the property in dispute still exists (b) That the lease of it was still valid and existing for all purposes. At page 53 lines 28-33 and page 54 lines 1- 7 of the record, the learned trial Judge had this to say:- “Taking issues 1 and 2 together of the issues in controversy, I would say that there is no evidence before me to prove that the property at No. 26, Okigwe Road, Aba has been partitioned into two or more. There are no separate documents of title to separate partitions of the property. At best the letter Exhibit ‘B’ from the Ministry of Lands might be a proposal which, of course was not carried out by the deceased before his death. Since in the Will – Exhibit C the deceased bequeated the entire No. 26 Okigwe Road, Aba to the plaintiff without any partition. Indeed, there are no separate certificates of occupancy before the court showing Part A and Part B of the property.”
ii. The above finding of the court below is sound in law and in common sense. The conclusion of the court is impeccable. It should be noted that the appellant and the 1st respondent never paid the requisite fees, and again from the evidence of the 2nd defendant’s witness Christian Okwuba at pages 33 lines 10-34 and page 34 lines 1-34, it is clear that the bank gave a conditional acceptance of the proposed break up which required the Lands officials to give an undertaking to fulfill the conditions pleaded in paragraph 5 of the statement of defence at page 13 of the record. The evidence of the 2nd defendant’s witness is that following the failure of the Ministry of Lands to satisfy the conditions given by the 2nd defendant/appellant it was assumed that the transaction had fallen through. This was natural since they were unpaid mortgators. There was therefore no question of surrendering anything.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It must be mentioned also that the question of non-compliance with the provisions of Auctioneers Law is a question of fact which ought to be pleaded if the Appellant had wanted to make it part of her case. It is settled law that parties are bound by their pleadings. – Rowland JCA. Emecheta v. Ogueri (1997)
It is also settled law that a party is not allowed to set up a different case in each stage of the hierarchy of courts. – Rowland JCA. Emecheta v. Ogueri (1997)
A party does not plead law. – Rowland JCA. Emecheta v. Ogueri (1997)
It must be mentioned that the law is settled that a certified true copy of a document is admissible without proof. – Rowland JCA. Emecheta v. Ogueri (1997)
The maxim of the Law is “silence means consent”. – Rowland JCA. Emecheta v. Ogueri (1997)