CORAM

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Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Ruqayat Oremei Ayoola Justice of the Court of Appeal

Nehizena Idemudia Afolabi Justice of the Court of Appeal

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PARTIES

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BARR BASSEY S. B. EDEM

APPELLANTS 

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1. MR. NEAL KWAME EKPOUDIA

2. IBORO ELIJAH EKPOUDIA

RESPONDENTS 

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AREA(S) OF LAW

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LAND LAW, PROPERTY LAW, CONTRACT LAW, CIVIL PROCEDURE, PROFESSIONAL ETHICS, EVIDENCE, APPEAL, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Respondents in this appeal were the Claimants in Suit No: HEK/28/2012 at the High Court of Akwa Ibom State presided by Justice Theresa I. Obot. The original suit was instituted by Dr. Ikpe Umo Ekpoudia (now deceased) through his lawful Attorney, the 2nd Respondent, to whom he had granted a Power of Attorney. Upon Dr. Ekpoudia’s death, an application was made to substitute him with the Respondents (the family head, who is the first son of the deceased Claimant, and the donee of the Power of Attorney, who is the brother to the deceased Claimant).

The case at the lower Court concerned a property transaction from 1999 when the deceased Claimant engaged the professional services of the Appellant (a legal practitioner) to act as his legal representative for the purchase of the property in dispute. The Appellant represented himself as a legal practitioner, businessman, and hotelier. The deceased Claimant purchased the disputed property from the Appellant, who then prepared a Deed of Conveyance and processed a Customary Right of Occupancy in the name of the deceased Claimant. However, after the sale, the Appellant took possession of the property and erected structures on it without obtaining consent from the purchaser.

All efforts by the deceased Claimant to recover his property proved futile, leading to the institution of the lawsuit seeking declaratory, monetary, and injunctive reliefs. The Appellant, as Defendant, admitted to the claims but argued that he withheld the property due to a precondition that existed at the time of contract. The lower Court granted the reliefs sought by the Claimants and awarded costs in their favor in a judgment delivered on August 1, 2016.

Dissatisfied, the Appellant appealed to the Court of Appeal through a Notice of Appeal filed on August 3, 2016, initially with one ground of appeal. This was later amended by leave of Court on April 18, 2017, to include 11 grounds.

 

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HELD

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1. The appeal was dismissed for lacking merit.

2. The Court held that the Appellant’s claim that PW1’s evidence was hearsay was unfounded as the evidence was based on documentary evidence and the Appellant’s own admissions.

3. The Court found that Exhibit 2 (Deed of Conveyance) was properly considered by the lower Court as a receipt that vested equitable interest in the Respondents.

4. The Court determined that the Appellant failed to provide evidence to prove that the disputed land was located in an urban area, which would have made the Customary Right of Occupancy invalid.

5. The Court affirmed that the Appellant admitted to building structures on the disputed property without authorization, thereby causing permanent injury to the Respondents’ reversionary interest.

6. The Court struck out ground 10 of the Notice of Appeal and issue 5 formulated from it as incompetent, as it challenged an interlocutory ruling delivered on April 4, 2016, without seeking leave to appeal as required.

7. The Court awarded costs of N500,000.00 (Five Hundred Thousand Naira) to the Respondents.

 

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ISSUES

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1. Whether the evidence of P.W.1 in this case is not hearsay, and the learned trial Judge was right in granting the declaratory relief sought therein?

2. Whether the failure to reply to the Appellant’s pleadings did not amount to admission of the fresh issues raised therein?

3. Whether the trial Court was right in not taking judicial notice of Iko Esuk Atibe as an urban area?

4. Whether the trial Court was right in finding that the Appellant testified that he built on the Respondents’ land?

5. Whether the parties who substituted the deceased Plaintiff properly did so and have locus standi in this case?

 

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RATIONES DECIDENDI

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PROVING OWNERSHIP OF LAND – FIVE METHODS OF ESTABLISHING OWNERSHIP

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“As for the law involved, we would like to point out that it is now settled that there are five ways in which ownership of land may be proved. We will now proceed to consider each of these five ways in order to see if the findings of the learned trial Judge can be seen to bring the evidence adduced in the case in hand within the ambit of any of them. Firstly, ownership of land may be proved by traditional evidence as has been done in the case in hand… Secondly, ownership of land may be proved by production of documents of title… Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it… Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done… Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute (see Section 45 of the Evidence Act, Cap. 62).” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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DOCUMENTARY EVIDENCE – VALIDITY OF UNREGISTERED DEED WHEN USED AS RECEIPT

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“I find that Exhibit 2 was admissible to show that Dr. Ekpoudia paid the Defendant the sum of N4m and the Defendant agreed as he did in his pleading and evidence in Court that he received that sum in full payment for the land in dispute… The law is that where a purchaser of land has paid the purchase price to the vendor, he has acquired an equitable interest in the land… I find that Plaintiffs have shown by Exhibit 2 that they have an equitable interest in the property in issue.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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EQUITABLE INTEREST IN LAND – EFFECT OF PAYMENT OF PURCHASE PRICE

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“The well laid down position of the law is that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this is as good as a legal estate. The equitable interest so acquired can only be destroyed by a purchaser for value who had no notice of the existing equity.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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JUDICIAL NOTICE – REQUIREMENT OF EVIDENCE FOR URBAN AREA DESIGNATION

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“A quick look at the provisions of Section 122(4) of the Evidence Act which provides that ‘If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so’ will show that the lower Court was well within its right to refuse to judicially notice a fact without evidence being placed before it in view of that, especially since it is not the entirety of Eket Local Government Area that is designated as an urban area but only the location known as Eket.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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BURDEN OF PROOF – PROVING LOCATION OF LAND IN URBAN AREA

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“Whether or not a particular piece of land in dispute is within an urban area is a matter of evidence of a surveyor or a map tendered to explain the area designated urban area. It is not enough for counsel to stand up in the Court and state that the disputed piece of land is in an urban area.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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PROHIBITION FROM BENEFITING FROM ONE’S WRONG

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“Any wrongful act tending to the damage of another must not receive support in the seat of justice. And no one shall be allowed to benefit from his own wrong doing; the Maxim is ‘EX TURPI CAUSA NON ORITUR ACTIO’ SEE ONYIUKE v. OKEKE (1976) 1 NMLR 285…” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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BURDEN OF PROOF – WHO MUST PROVE ASSERTION

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“Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Put streetwise, he who asserts must prove his assertion. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why Section 132 of the Evidence Act provides further that 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.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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REPLY TO STATEMENT OF DEFENCE – WHEN UNNECESSARY

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“Therefore, since the Appellant did not provide evidence in proof of the allegations he made but rather provided evidence which countered his allegations before the lower Court, there is nothing new in the Appellant’s pleadings which requires response from the Respondents by way of a Reply. Exhibit 2 had disproved the only standing allegation of fact on the outstanding balance since it contains the acknowledgement clause for the receipt of full payment for the disputed property.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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APPEALING INTERLOCUTORY DECISIONS – PROCEDURAL REQUIREMENTS

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“The law is also settled that an interlocutory appeal and a final appeal of the decision of the lower Court can be made simultaneously. See Onwubuariri & Ors vs. Igboasoyi & Ors (2011) LPELR-754(SC) @ 15-16 para. G. However, in the circumstance of the instant appeal, it is impossible to say that this rule of law can succeed. Firstly, the fact that the leave of Court was required to appeal against the interlocutory ruling of the lower Court delivered on the 04/04/2016. Secondly, the period provided for appeal against the interlocutory decision had lapsed as at the time this appeal was first filed on 03/08/2016…” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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GROUNDS OF APPEAL – DISTINCTION BETWEEN LAW AND MIXED LAW AND FACT

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“It is trite that the mere fact that a ground of appeal is called an ‘error in law’ does not make it a ground of law, thus a thorough examination must be made to determine the type of ground of appeal before the Court, whether it is of law alone or of mixed law and fact.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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PROFESSIONAL CONDUCT OF LEGAL PRACTITIONERS – DUTY TO CLIENT

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“The actions of the Appellant are considered an express breach of Rule 14 of the Rules of Professional Conduct which requires the Appellant as a legal practitioner to devote his attention, energy and expertise to the service of his client, and subject to any rule of law, act in a manner which is consistent with the best interest of his client. As a senior legal practitioner, the behaviour of the Appellant has fallen below the required standard.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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DOCUMENTARY EVIDENCE – NOT CONSTITUTING HEARSAY

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“Under issue one, the Appellant faulted all the evidence led by the Respondents in proof of their case at the lower Court. The Appellant attacked the evidence of PW1 for being hearsay and stated that Exhibit 1 did not authorise the 2nd Respondent to act as a witness… I do not agree with the Appellant’s argument on this sub issue and hold the belief that the Appellant only raised it in a bid to waste the time of this Court.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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TITLE DOCUMENTS – EFFECT OF HEIR CLAUSE IN CONVEYANCE

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“Upon the examination of Exhibit 2, the Deed of Conveyance, the transaction therein was said to be between Barrister Bassey S.B. Edem of Atibe Afaha Eket in Eket Local Government Area of Cross River State of Nigeria (hereinafter called the ‘VENDOR’ which expression shall where the context so admits include his heirs, assigns and successors forever) AND Dr. Ikpe Umo Ekpoudia of Ikot Ebiere Village of Eket Local Government Area of the Cross River State of Nigeria (hereinafter called the ‘PURCHASER’ which expression shall where the context so admits include his heirs, assigns and successors forever). Thus, a literal interpretation of the content of this part of Exhibit 2 will prove that the document was prepared to cover a time where one of the parties to the contract passes away or where any of the parties could delegate anyone to act on their own behalf.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Evidence Act, 2011

• Land Use Act, 2004

• Court of Appeal Act

• Rules of Professional Conduct for Legal Practitioners

• Urban Areas (Designation) Order of Akwa Ibom State

 

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