⦿ CASE SUMMARY OF:
Archibong Ekpanya v. Grace S. Akpan & Ors. (1988) – CA
by PipAr Chima
⦿ NOTABLE DICTA
* PROCEDURE FOR NO CASE SUBMISSION
When a defendant intends to make a no case submission he will need to elect whether if the ruling is against him, he will call evidence. The Judge will need to be satisfied of a clear intention not to call evidence. Once that is done, the defendant will not be allowed to call evidence. But the Judge has a discretion whether or not to press for a clear statement of that intention. It seems from the state of the authorities that in the discretion of the Judge a defendant, who made a no case submission under circumstances which were not definite whether he intended thereafter to call evidence, will not lose his right to adduce evidence thereafter. But in the case of resting on a plaintiff’s case, there is no question of election. The fact that the defendant decides to and does rest on the case of the plaintiff puts an end to the matter. The court will be entitled to and must consider the evidence in all its ramifications as it would do in a fully canvassed case (but in a one-sided manner as there is no evidence from the defendant), resolving thereby the issue of credibility of the plaintiffs witnesses. – Uwaifo JSC. Ekpanya v. Akpan (1988)
* PROCEDURAL IRREGULARITY
It is not every procedural irregularity which affects the validity of proceedings. – Uwaifo JSC. Ekpanya v. Akpan (1988)
* PART PERFORMANCE REQUIRES POSSESSION INTO LAND
Therefore, for the plaintiff to be able to rely on part performance, he must be the person who has been let into possession of land and allowed to alter his position for the worse by carrying out acts in performance of the contract. Equity then come to his aid arising from the changed position in which he finds himself. – Uwaifo JSC. Ekpanya v. Akpan (1988)
* CLAIM NOT ASKED FOR
It is trite law that the Court should not grant what was not asked for or claimed by a party to an action. – Uwaifo JSC. Ekpanya v. Akpan (1988)
Grace S. Akpan & Ors.
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Obong Ukot
* FOR THE RESPONDENT
⦿ CASE HISTORY
The claim by the plaintiff before the lower Court was for:
(a) A declaration of entitlement to a statutory right of occupancy over a piece of land situate at Ikot Ekpene Road, Uyo.
(b) The sum of N840 lease rent per annum from 1981 until judgment.
(c) Cancellation of the lease of the said land.
The plaintiff claimed in his statement of claim to have bought the land in question from Robert Udo Akpan and Moffat Udo Ekong. Although Robert Udo Akpan testified that he sold land along Ikot Ekpene Road when he was a young man, to the plaintiff, he himself did not disclose in any manner how he came to own the land he sold. He did not give the size of the land nor how much the plaintiff paid him, nor who witnessed the sale transaction.
⦿ ISSUE(S) & RESOLUTION
1. WHETHER THERE WAS SUCH a procedural irregularity in the course of making a no case submission in this case as to vitiate the proceedings.
RULING: IN FAVOUR OF THE RESPONDENT.
i. The question is, was he in the end denied less than he would have been entitled to? I cannot see that he was. He would have been entitled to sum up the evidence and comment on it only once in any event so long as the defendants decided to make a no case submission. He did in fact sum up the evidence and comment on it. Again, the defendant in a no case submission has the last word to sum up the evidence and comment on it. That was exactly what happened here. The plaintiff now complains that there was this non-compliance with the procedure and that that affected the case to the extent that the judgment ought to be set aside. This is completely untenable. It is not every procedural irregularity which affects the validity of proceedings. There was no irregularity here which can be described as anything like grave. If there was any defect in the procedure at all, it is idle to imagine that it was fatal.
2. WHETHER THERE WAS ANY evidence of probative value satisfying Section 4 of the Statute of Frauds 1677 to give an enforceable action to the plaintiff which the defendants would be required to answer.
RULING: IN RESPONDENT’S FAVOUR.
i. The evidence of the plaintiff is that the lease agreement with Akpan was oral. The duration of the lease was not stated nor was the extent of the land leased. It is the law that a contract for any disposition of land,such as a lease, does not come into existence until a final and complete agreement is reached between the parties on its essential terms: see Rossiter v. Miller (1878) 3 App. Cas. 1124 at 1151 per Lord Blackburn. This is so even if it was made orally. The essential terms upon which there must be evidence of an agreement are: the parties, the actual extent of the property, the rent, the length of the term and the date of commencement: see Harvey v. Pratt (1965) 2 All ER 786 at 788 per Lord Denning. The extent of the property in this case, as I said earlier, is not stated; the date of commencement of the lease in 1974 is not known; the length of the term was not given. Can it, therefore, be said that there was evidence upon which the plaintiff could succeed that he entered into a lease agreement with the defendants’ father? I think not.
ii. The statement of defence does not disclose how S.A. Akpan came to be on the land in question. But it denies that the plaintiff is the owner of the said land and any knowledge of a lease transaction between the plaintiff and the said Akpan. It however, claims that Akpan was at all times in lawful and peaceable possession of the entire land in dispute. Throughout, there is no document or any memorandum in support of the said lease or even of the alleged ownership of the plaintiff. Apart from the assertion of the alleged lease, there is no shred of evidence, however tenuous, that the plaintiff at any time exercised any act of possession over the land.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Uwaifo JCA
* REVERSAL OF MONEY NOT SOUGHT FOR BUT ISSUED BY THE TRIAL JUDGE
The only other matter remaining to be considered is the order made by the Judge for the refund of the sum of N2,000 which the defendants were made to pay to the plaintiff. The N2,000 was paid by the defendants when the plaintiff put pressure on them and when they eventually found that he instituted this action. Such payment, of course, did not in any way constitute an acceptance of a lease either by themselves or their predecessor-in-title, namely, Late S.A. Akpan.
In law, it appears that it was money paid for no consideration. But the defendants did not counter-claim for it in this action. It is trite law that the Court should not grant what was not asked for or claimed by a party to an action: see Kalio and Ors v. Daniel-Kalio (1975) 2 SC 15. The learned Judge was therefore in error to have made an order for the money to be refunded by the plaintiff. The appeal against that order accordingly succeeds.
I assess costs in this appeal after due consideration of all the issues at N400.00 in favour of the defendants/respondents against the plaintiff/appellant.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
* IRREGULARITY MUST BE SUBSTANTIAL TO WARRANT PROCEEDING NULL
Gabriel Madukolu and Ors v. Johnson Nkemdilim (1962) 1 All NLR 587 at 596, Bairamian F.J., said: “If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity… A defect in procedure is not always fatal …”
* ACQUIESCENCE TO IRREGULARITY
Sonuga and Ors v. Anadein (1967) NMLR 77 at 79, the Supreme Court per Lewis, J.S.C. said: “In the appeal before us, the question appears to be, is it right for the defendant to take advantage of an irregularity he had himself accepted and had acted on it, without any harm done to him? We think it is now too late for him to raise an objection.”
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS