⦿ CASE SUMMARY OF:
Robert Enajite Ughutevbe v. Dr. Owodiran Shonowo The Registrar Of Titles (2004) – SC
⦿ LITE HOLDING
It is pertinent to remark having regard to the state of the authorities that where as in this case, any specie of property was allotted to and signed for by the children of a father who of his own volition caused the property to be so assigned to his children, it must be presumed that such property was given as a gift of advancement to the children by their father.
⦿AREA OF LAW
– Land Law
– Presumption of advancement.
Robert Enajite Ughutevbe
Dr. Owodiran Shonowo
The Registrar Of Titles
(2004) JELR 54084 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
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’s 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 £10,000 to Chief M. A. K. Shonowo for the property which he had bought from one Abdulahi Mohammed for £4,000 and was executed on September 3, 1959.
Following the purchase of the property and with a registered Title 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 O. O. 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 was his first child to go to secondary school at the 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 enquires he made at the Lands Registry in Lagos, he commenced this action against the appellant and the 2nd 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 25 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.
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 defendant 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.
1. Whether there is merit in the contention of the appellant that the Court below was wrong to have held that paragraphs 4, 5, 6 and 7 of the respondent’s amended reply are not in breach of the provisions of Order 16, rule 12?
2. Whether the Court below was right to have held that the trial Court should have given the parties the opportunity of being heard before deciding to strike out what was considered to be the offending paragraphs of the respondent’s amended reply?
3. Whether the Court of Appeal did not misconceive and in the process did violence to the issue of presumption of advancement?
4. Whether the Court below was right when it held that the issue of estoppel did not arise for argument in this appeal?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED WITH N10,000 COST]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT.
i. Throughout the proceedings, the fact that the property was signed by the respondent has not been disputed. When, therefore, the appellant claimed ownership of the property in dispute by purchase from the father of the respondent, the respondent quite properly filed a reply to challenge that assertion of the appellant. Whereas in this case, a defendant sought to justify himself or his action by pleading that a set of facts existed different from that pleaded by the plaintiff, it is not only right but proper for the plaintiff to set up such facts as would show the lie in the claim of the defendant. It follows that I must hold that the Court below was right, having regard to all I have said above that the amended reply, particularly paragraphs 4, 5, 6 and 7 thereof filed by the respondent in no way breached the provisions of Order 16, rule 12 of the High Court of Lagos State (Civil Procedure) Rules, 1972.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In my humble view, the Court below was right to have held that before the alleged offending paragraphs of the amended reply were struck out, the parties should have been heard by the trial Court.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Indeed unlike the Shepherd v. Cartwright case (supra), rather than have the respondent sign the transfer documents, the father of the respondent without the knowledge of the respondent caused the signature of the respondent to be on the document of the sale to the appellant. While it is true that the appellant went into possession after the sale, and in the lifetime of the respondent’s father, it seems to me that the argument cannot be available against the right of the respondent to the property, when he had no knowledge of the transaction that occurred with regard to the property between his father and the respondent. In any event, it is idle to now argue that a presumption of advancement was not pleaded by the respondent having regard to the earlier decision of the Court below on this point, and confirmed earlier in this judgment. It is pertinent to remark having regard to the state of the authorities that where as in this case, any specie of property was allotted to and signed for by the children of a father who of his own volition caused the property to be so assigned to his children, it must be presumed that such property was given as a gift of advancement to the children by their father. It is for the father, or those who wished to challenge that presumption that have the onus of providing credible evidence to prove that the property was not meant as a gift or advancement to the children. With this conclusion, I must reject the contention made for the appellant and resolve this issue against the appellant.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In my respectful view, it seems to me that having regard to the admitted facts in this case, it is not open to the appellant to argue that the respondent was estopped from pursuing his right to the ownership of the property in dispute when he did. There was no scintilla of evidence to prove that the respondent was aware that his father had sold the property to the appellant. Nor is there any evidence that the respondent was aware that in that period the appellant was in possession of the property in dispute. In the result as it is required that such evidence as stated above must be established to show that the respondent led the appellant to believe that he was not going to dispute the ownership and possession of the property in dispute by the appellant, I must hold that appellant has failed to establish estoppel against the respondent. This issue must therefore be resolved against the appellant.
Bullen and Leake and Jacobs Precedents of Pleading 12th Edition stated at pages 107-108: “The plaintiff must not set up in his reply a new cause of action which is not raised either on the writ or in the statement of claim, since the plaintiff must not in his reply make any allegation of fact, or raise any new ground of claim inconsistent with his statement of claim. Inconsistent for this purpose does not mean “mutually exclusive” but merely new or different. In other words the reply must not contradict or “depart” from the statement of claim, or it will be ground for an application to strike out the reply in which the defect occurs. For example, if a plaintiff claims rent on his writ, he cannot claim the same sum in his reply as damages for unlawfully “holding over”. Or, if the statement of claim alleges merely a negligent breach of trust the reply must not assert that such breach of trust was fraudulent. So again, if the statement of claim alleges undue influence exercised on the deceased by the defendant, the reply must not allege that in the alternative it was exercised by the deceased’s husband. Such inconsistent claims should be pleaded, if at all, alternatively in the statement of claim; and the plaintiff may amend or apply to amend his statement of claim in order to plead such allegations or claims in the alternative. Although the plaintiff is not allowed to make a “departure” in his reply, yet he may “new assign.” A new assignment was a pleading in the nature of a special reply, which explained the declaration in such a manner as to point out the real or supposed mistake of the defendant, and to show that the defence pleaded was either wholly inapplicable to the causes of action replied upon by the plaintiff, or was applicable only to a part of them. Such a reply is very seldom necessary under the present system of pleading owing to the greater particularity now required in a statement of claim; but it is still sometimes used. As a rule, however, if there be any mistake or possible ambiguity as to the precise nature or extent of the acts complained of or of the right which the defendant relies on as justifying those acts, the pleadings already served should be amended or further particulars ordered.”
⦿ SOME PROVISION(S)
Order 16, rule 12 of Lagos State High Court Ruled: “No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”
⦿ RELEVANT CASE(S)
Shepherd v. Cartwright (1954) 2 WLR 967 where Viscount Simmonds at p. 970 had this to say – “…I think that the law is clear that on the one hand where a man purchases shares and they are registered in the name of a stranger there is a resulting trust in the favour of a purchaser; on the other hand, if they are registered in the name of a child or one to whom the purchaser then stood in loco parentis, there is no such resulting trust but a presumption of advancement. Equally it is clear that the presumption may be rebutted but should not, as Lord Eldon said, give way to slight circumstances.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
As the Registrar of titles did not file a brief and did not take any part in this appeal, I will not refer to him as a party in this judgment. – Ejiwunmi, JSC. Ughutevbe v. Owodiran (2004)
It must be borne in mind that the pleadings in an action determine and control the way and manner the trial of an action will succeed or fail. Being the threshold that determines the facts of an action, it makes for justice and fair play for their validity and relevance to be tested at the beginning of an action or as soon as possible thereafter. In any event, in a matter as crucial as the determination of the rights and wrongs of an action, the parties ought to be given an opportunity of being heard before the Court takes its decision. – Ejiwunmi, JSC. Ughutevbe v. Owodiran (2004)
The presumption of advancement, as it is called, applies to all cases in which the person providing the purchase-money is under an equitable obligation to support, or make provision for, the person to whom the property is conveyed, that is where the former is the husband or father of, or stands in loco parentis to, the latter. – Edozie, JSC. Ughutevbe v. Owodiran (2004)