LAW REPORT

Issues: 1.

Whether the trial court was right when it dismissed the claims of the plaintiffs/appellants and granted the counter claim of the defendant/respondent, regard being had to the admissions in the pleadings and evidence before it.

Whether the award of fifty thousand naira (N 50,000.00) cost in favour of the respondent is not excessive as no reasons were given by the trial court as to how it arrived at this amount, or whether the cost ought to have been granted at all since it was not specifically sought for nor supported by evidence.

Facts:

The 1st plaintiff and the defendant were husband and wife. They had a restaurant business and bought the land in dispute with proceeds from it and built houses thereon.

Following their divorce, the 1st plaintiff instituted an action against her husband claiming a declaration that the plaintiffs are the sole and absolute owners of the houses and entitled to the statutory right of occupancy over the land, order of injunction restraining the defendant from further acts of trespass on the land, order for the defendant to pay the sum of N11 ,000 (eleven thousand naira) being the worth of things destroyed in the restaurant when it was closed, and N6,000 (six thousand naira) daily for loss of profit resulting from the closure of the restaurant till the day of judgement.

The 2nd plaintiff, a sister to the 1st plaintiff claimed that she funded part of the money used to purchase the land. The defendant counter claimed for declaration that he is the sole and absolute owner of the property, order of perpetual injunction restraining the plaintiffs from further laying any form of claim on the property. The trial court dismissed plaintiffs’ claims and allowed the counter claim. Aggrieved, the plaintiffs appealed to the Court of Appeal.

In determination of the appeal, the Court of Appeal considered the following statute:

Court of Appeal Rules, Order 4, rules 3 and 4

“(3) The court shall have power to draw inferences of fact and to give any judgement and make any order, which ought to have been given or made, and to make such further or other order as the case may require, Including any order as to cost”

“(4) The powers of the court under the foregoing provisions of this Rule may be exercised not withstanding that no notice of appeal correspondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming is not specified in such a notice: and the court may make any order on such terms as the court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”

 Held (allowing the appeal in part)

Duty on party alleging admission by adversary or failure to traverse to specify relevant facts admitted –

A party who alleges that an opponent has admitted any material fact pleaded in its statement of claim or defence or that the opponent has failed to traverse any pleading as required by law, has the duty of highlighting and specifying such material fact and the paragraphs of the pleading thereof, that has been admitted, or improperly traversed, so as to grant the opposing party the opportunity to respond thereto properly, and that would assist the court to direct its searchlight properly, to verify the claims and pronounce on it according to law.

Failure to so specify amounts to inviting the appellate court to a voyage of discovery, to gamble and speculate as to which paragraph of the statement of claim of the plaintiff was admitted/denied or improperly traversed by the defendant. In the instant case, the plaintiffs alleged that the defendant admitted some material facts but failed to state the facts, the trial court rightly discountenanced the allegation. [Pp. 1602 1603, Paras. – A}

 Determinants of admissibility of document –

The general rule governing admissibility of any document in court is relevancy and whether that document had been duly pleaded by the party or parties. [NITEL Plc . Ayu (2008) All FWLR (pt. 411) 904; Thirwell . Oyewumi (1990) 4 NWLR (Pt. 144) 384; Umogbai . Aiyemhoba (2002) FWLR (Pt. 132) 192, (2002) 8 NWLR (Pt. 770) 687 referred to] [P. 1603, Paras. D E}

How discretionary power of trial court to award costs is exercised and purport of ?

The cost to be awarded by a court is always left within the confines of the discretion of the trial Judge, but that discretion has to be exercised judicially and judiciously. Costs are not imposed as a punishment on the party who pays but are given by law as an indemnity to the person ,entitled.

In the instant case, the trial court did not exercise its discretion judiciously by awarding high costs without reasons for, therefore, it was set aside on appeal. [Rewane . Oketie Ebo (1960) 2 SCNLR 461; Kupoluyi v. Phillips (2001) 31 WRN 128, (2001) 13 NWLR (Pt. 731) 736 referred to] [Pp. 1610 , Paras. -A}

Whether a party can be granted sole ownership of property acquired by the parties while the marriage subsisted Per MBABA JCA: [Pp. 1606 1607, Paras. F A, Pp. 1608 1609, Paras. G F]

“Can one marriage partner lay claims to exclusive and sole ownership of what the two of them toiled and labored to acquire and build when they were married, pretending the other partner was a mere footnote! That is what the parties in this case tried to present.

Of course, by strict principles of law, the respondent, the husband, could claim ownership of the land, because the exhibits A and E carry his name as the purchaser (even though the Ist appellant signed exhibit A in protest), and the vendor (DW4) came to court to say that he sold the land to the defendant/respondent.

But equity and conscience would not permit or allow the respondent rest, to solely own and enjoy the property to the exclusion of his wife (1st appellant), who worked with him and ran the restaurant business which generated the proceeds to buy the land and build the houses .

At the same time, would it be right and lawful for the respondent to be given sole absolute of ownership of the land and buildings, which evidence shows was acquired by the defendant and his wife when they were still together in marriage – the wife working to generate the funds for the acquisition of the property?

I think it would be an affront to sound judgement and good conscience to reward the respondent, who was not also honest in his claims, with sole and absolute right of ownership of the land and houses against his wife (Ist appellant) who, in fact, toiled and labored with him (respondent) to raise money from their restaurant business to buy the land and build the houses.

The reliefs sought by the respondent in the counterclaim were:

(a) A declaration that the defendant is the sale and absolute ofthe property lying and situate at No. 217 Ahmadu Bello way Gembu.

(b) An order of perpetual injunction restraining both the plaintiffs, agents, servants, privies, assigns or any other person claiming through them from further laying any form of a claim on the said property.

(c) The cost of this suit.” (italics mine)

It is obvious that the defendant/respondent did not prove sale and absolute ownership the property against 1st appellant, because evidence showed he jointly acquired and built it with his wife (1st appellant), from the proceeds of their joint business, when they were still married.

There is nothing to suggest that the subsisting rights and interests of the wife (1st appellant) to/in the land and buildings had extinguished at any time, either before the institution of the suit by the Appellants or the counterclaim by the respondent, or while the suit was pending.

Even the writ of divorce issued to the 1st appellant by the respondent cannot be construed to have brought a stop to/and deny the 1st appellant of her inherent rights in/to the property, jointly acquired and owned by them while the marriage was on. It only brought cessation to their marriage relationship.

Just as the respondent cannot secure an order of court for sole and absolute ownership of the four children of the marriage against the 1st appellant, after divorcing her; I believe there is no law that will authorize him to annex/appropriate and enjoy, alone and exclusively, any property acquired and owned by the two of them, without the consent and authority ofthe co-owner, 1st appellant.”

Nature of right conferred by equitable interest-

•Equitable interest in a land is as good as a legal estate and can only be defeated by a purchaser of the land without notice of the prior equity. [Kannike . Fayomi (2006) All FWLR (Pt. 309) 1440; Okoye v. Dumez (Nig.) Ltd (1985) 1 NWLR (Pt. 4) 783 referred to] [P 1604, Paras. F G]