IN THE SUPREME COURT OF NIGERIA HOLDEN AT LAGOS
CITATION: (1975) 5 S.C. (REPRINT) 29
TASLIM O. ELIAS JUSTICE, SUPREME COURT
GEORGE S. SOWEMIMO JUSTICE, SUPREME COURT
DANIEL O. IBEKWE JUSTICE, SUPREME COURT
K.R. RAMANCHANDANI APPELLANTS
MISS BASSEY O. EKPENYONG RESPONDENT
JUDGMENT OF THE COURT
(Delivered by ELIAS, CJN.)
This is an appeal from the judgment of Inyang, J., in the High Court of Calabar delivered on December 29, 1972, in which he granted to the plaintiff recovery of possession of two buildings named Taj Mahal Hotel and the Dance Hall with Bar together with an annual rent of the property at £600 (N1200.00)
The facts of the case may be stated briefly as follows: The subject matter of this case are two buildings with Taj Mahal Hotel and a Dance Hall situate at 70 Target Road, Calabar. The material period is from 1961 when the plaintiff and the deceased Indian husband were separated by divorce after having lived at 23 Bassey Street until the Liberation of Calabar on October 18, 1967. The plaintiff sued for the recovery of possession of the two buildings from the defendant who claimed to have obtained an assignment from the deceased. It is clear from the Statement of Claim that the two premises are business undertakings, not a matrimonial home, of the plaintiff and the deceased. It was after the divorce between husband and wife in 1961 that the husband removed from 23 Bassey Street and went to stay at the Taj Mahal Hotel, during which period the defendant met the deceased there. The defendant, who was engaged as the Managing Director to look after the Hotel and the Dance Hall, claimed to have obtained an assignment of the management of the Hotel and also to have bought the Dance Hall; he maintained that the Hotel was owned by the deceased husband of the plaintiff but that the plaintiff owned the Dance Hall. The trial Judge, having found that the two buildings were under the one management and control of the Indian Trade Company Ltd. who were running the business with the defendant as the Managing Director, ordered that the defendant should quit the two buildings which he held to belong to the plaintiff as owner. The learned trial judge disbelieved the contention of the defendant either that there has been an assignment to him by the deceased or that he had been given a valid Power of Attorney as he claimed.
It is from this judgment that the present appeal has been brought. On a number of a total of six grounds, the first three of which learned counsel for the appellant offered to abandon, the remaining three which he argued at some length dealt with his claim that the learned trial Judge was wrong to have held that the two buildings belong to the defendant/appellant, that the Power of Attorney had effectively transferred the management of the Taj Mahal Hotel to the defendant/respondent who had bought the Dance Hall as owner, and that the Indian Trade Company Ltd. is an entity separate and distinct from the defendant/respondent under the law.
We observe that the plaintiff/respondent was found by the learned trial Judge to be the owner of the two premises partly on the strength of Exhibits 3 and 4 which are conveyances to her of the land on which the buildings are situated. The plaintiff stated in paragraph 2 of her Statement of Claim as follows:
The land on which these premises stand belongs to the plaintiff by purchase on various dates from Mrs. Louisa Umo Edem and from Chief Asibong Ene Obong representatives of Ekpo Nwa Family, as per several deeds of conveyance.
The plaintiff prayed in aid Exhibits 3 and 4. On the other hand, the defendant stated in paragraph 2 of his Statement of Defence as follows:
In answer to paragraph 2 of the Statement of Claim the defendant avers that to the best of his knowledge, information and/or belief the land at No. 70 Target Road, Calabar, on which the premises? stand is the property of one Mr. Juriat Peregrino Cassarm formerly of No. 13 Bonny Street, Calabar, but now of No. 27 Offin Road, Lagos, a Nigerian, to whom he is a tenant in respect of the same for 99 years (the term of tenancy being concurrent with that of the Taj Mahal Hotel) at a yearly rental of £150 (one hundred and fifty pounds sterling) which he, the defendant, has been paying as due and payable.
The defendant based his averment on Exhibits 16 and 20.
The plaintiffs case is that she and one Sadhuram Rijhumall (deceased) were married in 1948 until the marriage was dissolved in 1961. They had four children of the marriage of whom one died in 1961 before they separated in that year and the husband left the matrimonial home at 23 Bassey Duke Street, Calabar. The plaintiff claimed that at the height of their love as man and wife, she bought two adjacent pieces of land in fee simple in possession free from any encumbrances from a Mrs. Louisa Umo Edem, the first plot of land having been purchased on September 5, 1955 (Exhibit 3) while the second was purchased on November 5, 1956 (Exhibit 4). It was on these two adjoining pieces of land that the Taj Mahal Hotel and the Dance Hall (with the Bar) were built in 1954 and 1957 respectively. Although there was some evidence that the plaintiff and the deceased husband jointly provided the money for the building of the Taj Mahal Hotel, nevertheless the building plans of both premises were done in the name of the plaintiff alone. The deceased husband lived at the Hotel between 1961 and 1965 when he returned to India and took the remaining three children of the marriage with him, leaving the plaintiff behind in Nigeria. After the death of their father in India, the three children returned to Nigeria, since when it would appear that both the plaintiff and the defendant had borne the payment of the school fees of some of the children. The plaintiff denied any knowledge of the sale of the Dance Hall with Bar to the defendant and of any mortgage of the Taj Mahal Hotel to the African Continental Bank Ltd., as alleged by the defendant. She also denied having given her late husband any Power of Attorney to deal with her property at 70 Target Road, Calabar.
The Power of Attorney which was tendered in evidence by the defendant is Exhibit 16; and the plaintiff tendered Exhibit 10 which is a letter in which the plaintiff refused to sign the Testatum to the Deed of Mortgage of what apparently is the Taj Mahal Hotel to the African Continental Bank Ltd. It was an attempt to get the plaintiff to sign away her rights. The plaintiff took possession of the premises at 70 Target Road, Calabar, when it was at last vacated by the Manager who had been put in charge of it by the defendant before the civil war. She kept her children there, although she continued to live at 23 Bassey Duke Street, Calabar. Then the Administrator and Planning Authority, after inviting the plaintiff to his office for a discussion about the Government proposal to acquire interest in the rent of the Taj Mahal Hotel, wrote another letter to the Police instructing them to release the keys of the premises to the defendant who had lately returned to Calabar after the civil war. It is interesting to quote here at some length the relevant part of the first portion of Exhibit 8 as summarised by the learned trial Judge as follows:
In the above portion of Exhibit 8, item (a) of paragraph 1, that is to say, survey plan No ISH 1 measuring 2428.10 square yards refers to the survey plan attached to Exhibit 3 which is one of the root of title of the plaintiff to the premises at No. 70 Target Road and to which reference had been made earlier; and item (b) of the same paragraph, that is to say, survey plan No. ISH 77 measuring 1505.65 square yards refer to the survey plan attached to Exhibit 4 which is the second root of title of the plaintiff to the premises at No. 70 Target Road and to which reference had also been made earlier. Item (c) of the same paragraph, that is to say, survey plan NO. ISH 13 measuring 604.19 square yards is not before the court. Item (d) of the same paragraph, that is to say, survey plan No.2 measuring 2612.73 square yards refers to the survey plan attached to Exhibit 20 which is one of the root of title of the defendant to the premises at 70 Target Road and which is a deed of conveyance dated 25/5/61 and made between Sadhuram Rijhumall (as the lawful Attorney of the Plaintiff) and Jimat peregrino Cassarm. The survey plan NO. ISH 2 in Exhibit 20 describes the property as belonging to the plaintiff. Item (e) of the same paragraph 1 of Exhibit 8, that is to say, survey plan No. ISH 51 measuring 973 square yards refers to one of the survey plans attached to Exhibit 18 which is another root of title of the defendant to the premises at 70 Target Road. It is a deed of conveyance dated 17/3/61 between Sadhuram Rijhumall (as the lawful Attorney of the plaintiff) and Edward Eboh. It is shown on survey plan No.ISH 51 that the land is the propery of the plaintiff. Item (f) of the same paragraph in Exhibit 8 that is to say survey plan No. ISH. 80 measuring 1333.22 square yards is another survey plan attached to Exhibit 18 and it is shown on it that the land is the property of the plaintiff.
On the other hand, the defendant who gave evidence in his own defence and called one witness, a Mr. Okoye, the Solicitor to the African Continental Bank, stated that Exhibit 16 which Mr.
Okoye produced was the deed of mortgage of the Taj Mahal Hotel to the Bank and that it was executed by the plaintiff in 1955. The learned trial Judge observed as follows:
Exhibit 16 is not an original Power of Attorney showing a purported signature of the plaintiff as alleged by Mr. Okoye. The name of the plaintiff is printed on Exhibit 16.
A little further on, the learned trial Judge remarked as follows:
I hold the view very unhesitatingly that Mr. Okoye could not prove, in fact he did not say so, that the signature on the original Power of Attorney alleged to have been lost by him was that of the plaintiff and the person who could have been helpful to the court in the mater was Ekpenyong O. Ekpenyong, one of the alleged witnesses to the purported signature, who was not called as a witness by the defendant whose claim of title or possession to the premises situate at 70 Target Road rests on the Power of Attorney. This, in my view, is a very serious omission on the part of the defendant.
The conclusion to which the learned trial Judge then came with respect to the alleged mortgage deed was that -
Exhibit 16 is not a photostat copy of the original or counterpart thereof which would have shown a signature and evidence could have been led further by the defendant to show if that signature was that of the plaintiff. The registration of a document by the Registrar of Deeds is no proof of the signature of the grantor. It is particularly so in a case, as it is in the present one, where the name of the grantor is merely printed on the Deed without a signature.
Another point which we consider relevant to the claim of the defendant that Taj Mahal Hotel had been mortgaged to the Bank is that, even if this were so, the mortgage had never been redeemed, and that therefore the Bank must still be deemed to retain a proprietory interest in the present suit concerning Taj Mahal Hotel. As the learned trial Judge observed:
However, the defendant alleged in evidence that up till the trial of this case the mortgage was not redeemed and, in the circumstance, it is amazing that Mr. Okoye has not considered applying to join the African Continental Bank Ltd. his employers, as a co-defendant in this suit. The defendant also has not applied to the court to join the African Continental Bank Ltd. in this suit to defend their mortgage of the Taj Mahal Hotel.
The defendant also submitted Exhibits 17-20 in support of his statements. It is sufficient for us to quote here the learned trial Judges summary of the evidence in respect of Exhibits 17-20:
.........that exhibit was a grant made out and executed by Sadhuram Rijhumall, with the consent of one Edward Eboh, in favour of the defendant and the above piece of assertion in Exhibit 17 confirms and corroborates the evidence of the plaintiff that she is the owner of the Dance Hall (with Bar) and she built it entirely on her own. Exhibit 18 was tendered in evidence by the defendant to show that Sadhuram Rijhumall on 17/3/61 sold and conveyed the land on which the Dance Hall (with Bar) was built to Edward Eboh and for that reason Edward Ebohs consent was obtained on Exhibit 17 before the sale of the Dance Hall (with Bar) and land thereof by Sadhuram Rijhumall to the defendant. The defendant bought the Dance Hall (with Bar) in order to help his friend and fellow Indian, Sadhuram Rijhumall, who was by then financially down.
According to the defendant, the Taj Mahal Hotel is still the bona fide property of the late Sadhuram Rijhumall the management of which was leased to his company, the Indian Trade Co. (P.H.) Ltd. in 1963. At the same time the defendant tendered in evidence Exhibit 20 to show that the land on which the Taj Mahal Hotel is situate has been sold and conveyed to Juriat Peregrino Cassarm by Sadhuram Rijhumall on 25/5/61. It is also admitted in paragraph 2 of Exhibit 20 that the land on which the Taj Mahal Hotel is situate forms portion of the land owned and bought by the plaintiff.
The defendant then narrated how, on his return to Calabar after the liberation of the town in November, 1968, he approached the Administrator and Planning Committee with the various documents in his possession, and how the latter instructed the Police to release the keys to him and said that he immediately regained possession of the premises. The defendant finally submitted that while his deceased friend was the owner of the Taj Mahal Hotel, the Indian Trade Company Ltd. was the owner of the Dance Hall by right of purchase. We agree that, on the totality of the evidence, the learned trial Judge came to the right conclusion with respect to the alleged Power of Attorney when he held as follows:
Again in view of Exhibit 16, the power of attorney purported to have been executed by the plaintiff in favour of Sadhuram Rijhumall on 2/9/55 giving every right to him to
Enter into agreement with any one, let out, mortgage or dispose of any property or Building situate, being lying on my land at No. 70 Target Road, Calabar, to give sign and obtain receipts release and other discharges from the same respectively among other rights, one wonders the necessity of Exhibit 8, already referred to above, which was presented to the plaintiff for her execution by Sadhuram Rijhumall with the defendant present (a fact which is not denied in evidence by the defendant) sometime in September, 1961. This goes to buttress the doubt in my mind in favour of the plaintiff with regard to Exhibit 16, the power of attorney.
I have already mentioned that in Exhibit 10 the Solicitor to the African Continental Bank Ltd. had requested the plaintiff to subscribe her signature to a testatum to a mortgage, a situation which is already covered and provided for in the alleged Power of Attorney, Exhibit 16. There was no need for the letter to the plaintiff, in my view, if according to Exhibit 16 Sadhuram Rijhumall had already been authorised to mortgage the property in issue and that being the position, it was unnecessary to have written to the plaintiff requesting her to subscribe her signature to the mortgage. This conduct of the Solicitor to the African Continental Bank Ltd. as shown in Exhibit 10 increases the doubt in my mind about the alleged Power of Attorney.
We would like to say a few words about the claim of ownership and to a right of possession of Taj Mahal Hotel and the Dance Hall by the respondent in this case, based as it was mainly on Exhibits 3 and 4 which both recite her as possessing the absolute ownership of the premises.
Even if the husband had supplied the money with which the buildings were erected thereon, we should be prepared to hold that there is a presumption of advancement in her favour so long as the two buildings were put up during the subsistence of the marriage. The defendant did not deny that the two parcels of land had been conveyed to the respondent or that all the relevant documents pointed to the fact that the respondent is everywhere referred to as the owner. The respondent might have been divested of her ownership if the appellants claim that she had duly executed the Power of Attorney could be sustained, but, as we have seen, the appellant had failed to establish this. All the collateral claims to a sale or mortgage of either of the two buildings ipso factor fell to the ground as they must do once the Power of Attorney has been shown to be a forgery.
Mr. Lardner, learned counsel for the respondent, pointed out that the submission by learned counsel for the appellant that both buildings belonged to the Indian Trade Company Ltd. could not be sustained in view of the fact that the appellant never pleaded either in the court of appeal or before the Supreme Court that the Indian Trade Company Ltd. was a party to the suit, and that therefore the appellant was in error to have made a claim to that effect. He further submitted that the respondent had claimed both buildings in paragraph 2 of her Statement of Claim and that no satisfactory evidence had been given by the appellant to contradict that claim. As regards the Indian Trade Company Ltd., it is essential to point out that the manner of its being brought into the business of the Taj Mahal Hotel would seem to be questionable. We agree with the following observation of the learned trial Judge on this point:
I will, in addition, take into consideration that after going into possession of a portion of the premises in issue as shown in Exhibit 17, the defendant transferred his possession to his company by name, the Indian Trade Company (Port Harcourt) Ltd. who are alleged by the defendant to run and manage the business in the premises in issue as shown in their intention in Exhibit 19. In the absence of a deed of lease of the Taj Mahal for a period exceeding three years already dealt with and in view of the personal connection of the defendant with a portion of the premises in issue as shown in Exhibit 17, I have to say that the plaintiff is perfectly right, in my view, to have brought the present action initially against the defendant personally. The defendant is in the premises in issue in trespass and he, without the knowledge, consent or concurrence of the plaintiff, had transferred the management of the business in the premises to his company, the alleged arrangement with Sadhuram Rijhumall notwithstanding. The defendant is a person and reference to the case of Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd. and one other 1961 1 All NLR. Part 1 page 116 is in my view irrelevant.
On the question of the failure to join the Indian Trade Company Ltd. as a party, we think it right to say that we are in agreement with the learned trial Judges further remark as follows:
Nevertheless in view of the averment of the defendant in paragraph 1(c) of his Statement of Defence, quoted earlier in part in this judgment, that Sadhuram Rijhumall leased the management of the Taj Mahal Hotel to the Indian Trade Company (Port Harcourt) Ltd. for a period of ninety-nine years, one would have thought or expected the plaintiff to apply to this Court to join the Indian Trade Company (Port Harcourt) Ltd. as a co-defendant in this action for the defendant and the Indian Trade Company (Port Harcourt) Ltd. are two separate persons in law although the former is a director of the latter and both of them are at present occupying the premises in issue, according to the evidence before the Court, in trespass (See the case of Salomon v. Salomon and Co. Ltd. 1897 A.C. 22 in which it was held by Lord Macnaghten at page 51 that:
The company is at law a different person altogether from the subscribers to the memorandum; and though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act.
(Also see Order IV Rule 5 of the High Court Rules, Cap. 61). As it is only one of the two squatters that is before the Court, the order of this Court will be made against only the one before it.
In the result, we have come to the conclusion that the appeal fails and is hereby dismissed. We affirm the judgment of Inyang, J., in Suit No. C/9/1968 which he delivered on December 29, 1972, in which he made an order that the appellant should give up possession of the property described in the writ of summons, that is to say, the premises situate at 70 Target Road, Calabar, together with the Taj Mahal Hotel and the Dance Hall (with Bar) standing thereon, to the respondent within one month of the judgment in this appeal. We award to the respondent as costs in this court the sum of N260.00
(Sgd.) Dr. T.O. Elias, CHIEF JUSTICE OF NIGERIA.
(Sdg.) G.S. Sowemimo, JUSTICE, SUPREME COURT.
(Sgd.) Dan Ibekwe, JUSTICE, SUPREME COURT.
Chief E.E.E. Anwan, for the Appellant.
Mr. H.A. Lardner,(with him, Mr. E.E. Oku), for the Respondent.