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In The Supreme Court of
On Friday, the
13th day of July 2007
Before Their Lordships
S.C. 254/2002
Between
And
Judgment of Court
Delivered by
Francis Fedode
Tabai. J.S.C.
The judgment is sequel to an
appeal against the judgment of the Court of Appeal Port Harcourt Division on
the 22/5/2002. The judgment itself dismissed the appeal against the judgment
of the trial court delivered on the 14/2/86. The Appellants herein who were
the Plaintiffs were also the Appellants at the Court below. The writ of
summons itself was issued at the Port Harcourt Division of the High Court of
Rivers State on the 13/11/75. They sued for themselves and on behalf of
Ikoni family of Akakumama Okoroma in Brass Division then of
In paragraph 12 of the
Statement of Claim the Plaintiffs/Appellants claimed as follows:
Wherefore the Plaintiffs claim as against the Defendants is for a
declaration of title to that piece or parcel of land known and called
Okameinmo Kiri
situate at Akakumama
Okoroma village Membe in Brass Division
of the Rivers State and verged Red in Plan
No. ESA/R/407/76 LD dated the
26th of January
1976 in the peaceful possession and ownership of the Plaintiffs and of an
annual value of
The pleadings on which the
case was tried are the Statement of Claim at pages 14-18 of the record and
the Amended Statement of Defence at pages 85-92 of the record. In the
judgment on the 4/2/86 the learned trial Judge Opene
J (as he then was) dismissed the Plaintiff's claim. The appeal to the Court
below was also dismissed.
Before this
Court the parties through their counsel
filed and exchanged their briefs of argument.
The Appellants' brief was prepared by B.E.I.
Nwofor, SAN and it was filed on the 24/12/2002.
The Respondents' Brief prepared by Isaac O. Kamalu
was filed on the 13/10/2004.
In the Appellants' Brief Mr.
Nwofor SAN proposed the following issues for
determination:-
(1)
Whether the Certificate of Purchase tendered in evidence and marked
Exhibit D2 was rightly admitted in evidence, and if not, was there any legal
evidence on record to support the concurrent findings of the courts below
that Arose gave consent to the sale of the disputed land to Donald Egebe?
(2)
Whether the concurrent findings of the courts below that
Plaintiffs/Appellants' family sold the land in dispute to Donald Egebe, the
defendant/respondents' ancestor, is supported by the pleadings and evidence
on record and accords with the relevant and applicable principles of law?
(3)
Whether the Court below was right in failing to grant declaration of
title to the land in dispute in favour of the Plaintiffs/Appellants and in
confirming the trial court's decision dismissing the action?
On his part Mr.
Kamalu formulated two issues for determination
in the Respondent's Brief of Argument. The two issues are:
(1)
Whether Exhibit D2 (Certificate of Purchase) was properly admitted in
evidence.
(2)
Whether on the facts and evidence in this case the Court of Appeal
(Port Harcourt Division) was right in upholding the conclusion of the trial
court that the Appellants are not entitled to a declaration of title as
claimed.
On the 17/4/2007 when we heard
this appeal learned Senior Counsel for the Appellants, Mr.
B.E.I. Nwofor told
this Court that as a minister in the temple of justice he would no longer
pursue the Appellants' issue one on the admissibility of the Certificate of
Purchase Exhibit D2 and went on to concede the position of the Respondents
that the said document was admissible and rightly admitted. He then
proceeded to proffer some oral arguments in amplification of the Appellants'
issues two and three, the substance of which was that, in the light of the
pleadings and evidence, the concurrent findings of the courts below about
the sale of the property was not supported by the evidence and therefore
perverse. Mr. Kamalu for the Respondents argued
to the contrary.
Learned Senior Counsel for the
Appellants proffered, in substance, the following submissions. He referred
to the pleadings in paragraphs 3, 3a and 11 of me Statement of Defence and
submitted that by reason of the contradictions therein, the Respondents were
not certain as to the particular land bought and the precise person from
whom Donald Egebe bought the land and therefore that their case of the
alleged sale collapsed and crumbled right from their pleadings. Every
pleading, it was argued, should be concise, precise, clear and definite and
reliance was placed on
Folarin
v. Durojaiye (1988) 1 NWLR
(Part 70) 371 at 364, Bullen and
Leake and Jacob's Precedents of Pleadings 12th
Edition Page 39 and Re Parton,
Townsend v. Parton (1882) 30 WR 287. Still on the pleadings in
paragraphs 3, 3a and 11 of the Amended Statement of Defence, it was the
further submission of learned Senior Counsel that the Respondents failed to
specifically plead the alleged sale or other essential ingredients of a
valid sale and transfer of absolute title to a family land either under
customary law or the received English law. Learned Senior Counsel enumerated
six essential ingredients of a valid sale and transfer of absolute title to
family land under customary law and submitted that the Appellants failed to
plead these ingredients either in respect of "Ogiogio
Kiri" or in respect if "Obukiri."
On the duty on the Respondent's to plead the essential ingredients and the
effect of the failure so to do he relied on,
Aboyade
Cole v. Folami (1956) SCNLR
180 at 182-183; Erinosho v.
Owokoniran (1965) N.M.L.R 479 at 483;
Folarin v. Durojaiye
(supra); Taiwo v. Ogunsanya
(1967) NMLR 375; Ajada
v. Olarewaju (1969) ANLR
374 at 379, and Egonu v.
Egonu (1978) 11-12 SC 111 at 131 - 132. He referred to parts of
the evidence at the DW1 and DW2 and contended that they were facts not
pleaded and therefore inadmissible and urged that they be either expunged or
ignored as evidence on facts not pleaded goes to no issue. He further
referred to the evidence of the DW2 at page 132 of the record to the effect
that Donald Egebe paid £20.00 as against the version that the sale price was
£70.00 out of which he paid £65.00 and submitted that the contradiction
nullified the probative value on the purchase price.
Learned Senior Counsel further
referred to the evidence that only part-payment of £65.00 was paid leaving a
balance of £5.00 and submitted that a sale predicated upon part-payment and
delivery of possession without payment of the full purchase price is bad in
law and relied on David
Ejiniyi v. Amusa
Amusa Adio (1993) 7
NWLR (Part 305) 320 at 338, Odufuye v.
Fatoke (1977) 4 SC 11 at 23-24. Still on
this question of essential ingredients of a valid sale, Learned Senior
Counsel argued, rather strenuously that the Appellants failed to plead the
actual delivery and symbolic handling over of the land after payment of the
purchase price and which failure is fatal the case of the Appellants. He
relied particularly on
Uzuchukwu
& Ors v. Amaghalu Eki
& Ors (1977) 7 NWLR (Part 514) 535 at 550 -557; Edward
Egonu v. Madam Eziamaka
Egonu (1978) 11-12 SC 111 at 1331 -132 and
Erinosho v. Owokoniran
(1965) NMLR 479 at 483.
It was argued that the legally
admissible evidence on facts properly pleaded was grossly insufficient to
support the concurrent findings of the two courts below and which findings
are therefore perverse.
Under the Appellant's issue,
three references were made to the finding by the Court below that the
Appellants' family originally owned the land and submitted that having so
found, the burden of proving that the Appellants have been divested of the
ownership of the land rested on the Respondent and that they failed to
discharge the said burden.
The gist of the arguments of
Mr. Kamalu for the Respondents was as follows.
He submitted firstly that parties are by their pleadings required to state
only the material facts and not the evidence to establish those facts. He
relied on Order XXXIII Rule 5 of
the High Court Rules of Eastern Nigeria then applicable at the time of trial
at the Rivers State High Court,
Okagbue
& Ors v. Romaine (1982) 13 NSCC 130 at 137; Oguma
Associated Companies (Nig) v. I.B.W.A. (1988) 19 NSCC (Part 1) 395. It
was also submitted that in order to ascertain the case of a party as pleaded
the entire pleadings must be read and not paragraphs in isolation. Reliance
was placed on
Okoli & Ors v.
Inumkwadi & Ors (2003) 18 NWLR 1 at 24; Mobil
Producing Unlimited v. Francis Johnson Asunu
(2001) 16 N.W.L.R. (Part 740) 723 at 760.
Learned counsel referred to the address of counsel for the Appellants at the
trial court and contended that the issues between the parties were clearly
identified on the state of the proceedings and that the trial court also
clearly identified same. It was counsel's further submission that the issues
raised here in counsel's address were not issues raised in the pleadings and
if the Appellant's wanted to raise them, they ought to have filed a reply to
the Statement of Defence. He relied on
Gabriel Iwuoha
& Anor v Nigeria Postal Services Ltd &
Anor (2003) 8 NWLR
(Part 822) 308 at 340-341, ELF Petroleum (Nig) Ltd v
Onyekwelu (2002) 17 NWLR (Part 797) 461
at 485.
The Appellants, he contended,
cannot be allowed to take the Respondents by surprise. He submitted that on
the state of the pleadings the narrow issue identified by the parties and
confirmed by the two courts below is whether the transaction was a grant to
Donald Egebe for temporary occupation allowing only thatch houses as claimed
by the Appellants or outright sale to him as asserted by the Respondents.
Learned counsel submitted that all the material concurrent findings were
consistent with the pleadings and the evidence led thereon and therefore not
perverse. Learned counsel then highlighted parts of the pleadings and
evidence to buttress his argument.
The foregoing represents the
substance of the arguments of counsel for the parties. Let me first attend
to the question of the alleged imprecise land and boundaries said to be
contained in the pleadings of the Respondents over which learned senior
counsel for the Appellants made sustained submissions which I have already
adumbrated. Although in paragraphs 3 and 3(a) of the Amended Statement of
Defence the Appellants made reference to two parcels of land, namely
Ogiogiokiri
bought from Kanti Ogongon
of Egbelu family in
Akakumama in Okoroma area and
Obukiri bought jointly from one
Ayemu Ada
Oloko of Dogiwama in
Okoroma area and one Johnnie
Oruwegimo of Akakema
in Nembe, it is clear from the entire amended
Statement of Defence that the portion in dispute is
Ogiogiokiri. The identity of the land in dispute was not an issue and
the Plaintiffs/Appellants had not the slightest misapprehension about the
land in dispute. With respect to the land in dispute learned counsel for the
Plaintiffs, in the course of his address on the 5/12/85 had this to say.
"Two pieces of land are involved in the plan Exhibit D7
Obu Kiri which is
verged Yellow and the area verged Blue which is called
Ogiogio Kiri. Plaintiff does not own
Obukiri. DW1 gave evidence that what Donald
Egebe bought from Kanti
is Ogiogiokiri. Area which we are seeking
declaration is the smaller portion within larger land which is
Okumumo and Defendants call it
Ogiogio Kiri..."
(See page 161 lines 24-30 of
the record.)
Again at page 164 lines 22-24
he said:-
"We are not claiming Obu
kiri which Egebe bought from some other
persons. We have nothing to do
with Obu Kiri."
It is clear from the above
that the land claimed and which is the land in dispute is the area called
Ogiogiokiri by the Respondents and
Okameimo Kiri by the
Appellants. Besides, it is a Plaintiff who claims a declaration of title to
land that has the duty of establishing the identity of the land in respect
of which he seeks the declaration and not the defendant unless of course, he
counter-claims. See
Simon Ojiako
and Anor v. Obiawuchi
& Ors (1995) 9 N.W.L.R. (Part 420) 460; Ijama
Orika Odiche v.
Ogah Chibogwu (1994)
7 N.W.L.R. (Part 354) 78 at 87-88; Onwuka v.
Ediala (1989) 1 N.W.L.R.
(Part 96) 180 at 184; Imah v.
Okogbe (1993) 9 NWLR
(Part 316) 159 at 175. In this case the parties knew the land in
dispute and there was no dispute about it and therefore no issue on it
either before the trial court, or at the court below. In the circumstances I
find it difficult to comprehend why learned senior counsel devoted so much
time on a purported issue which actually was a non issue.
Let me now examine the issue
which pertains to insufficiency of pleadings. Learned senior counsel for the
Appellants, at page 27 of the Appellants' Brief listed the following as the
essential ingredients of a valid sale and transfer of family land under
customary law.
(a)
that the sale was with the consent of the
family;
(b)
that the sale was concluded in the
presence of witnesses;
(c)
the names of the witnesses;
(d)
that the witnesses witnessed the actual
delivery or handing over of the land to the purchaser;
(e)
the purchase price was agreed and that it
was fully paid in the presence of witnesses; and
(f)
that the purchaser was let into possession
of the land.
It was his submission that the
above essential ingredients were not pleaded by the Respondents in their
Amended Statement of Defence, and that any evidence adduced in support
thereof was not a legal evidence and therefore that findings based thereon
were perverse.
The question is whether, for a
successful defence of the claim before the court, it was necessary for the
Respondents to plead all the above ingredients? The answer to this question
will be found in the pleadings of the parties. I start with the case of the
Appellants as pleaded in the Statement of Claim. It was pleaded in
paragraphs 5, 6 and 7 that the land in dispute is in
Okoroma village and that it was founded by a man called
Okoroma. Okoroma
begat Ovoh who in turn begat
Apragan who himself begat
Okoni or Ikoni.
It was further averred that Ikoni married
an Andoni woman and had an only daughter named
Arose, who inherited the land on the death of her father. Arose herself had
three children, a male and two females. On her death her male child named
Pencyl inherited the land and that the
Plaintiffs are the descendants of the said Pencyl.
In paragraph 8 and 9 of the Statement of Claim the Appellants pleaded:
"8.
Late Madam Arose Ikoni had a maternal
brother named Kanti Inogha
who is not of Ikoni family.
Kanti Inogha around 1930 was so friendly
with one Donald Egebe of
Nembe that he allowed him to settle temporarily on a portion of the
land in dispute with the knowledge and consent of Madam Arose
Ikoni where he was only to build a thatch house.
The portion allowed the said Donald Egebe for temporary occupation is verged
Green
in the said plan No.
ESA/R/407/76 LD dated
26/1/76 and filed with this
Statement of Claim."
9.
At no time was any portion of the land in dispute or that portion of
land allowed the said Donald Egebe to settle temporarily sold to him by the
family or any member of the said family or by Kanti
Inogha nor could such a sale be made without the
knowledge and consent of the family. Donald Egebe who in his life time was a
Native Court Clerk and after his retirement from the service became a
petition writer could not have bought this land from
Ikoni family without entering into a written agreement with the
Plaintiffs before his death."
In their reaction the
Respondents pleaded in paragraph 2 of their Amended Statement of Defence to
the effect that the Appellants were not members of
Ikoni family but rather of the Kanti
Egbelu family of Okoroma
area and at some previous occasions they had held out themselves as members
of Kanti family. They then pleaded in paragraph 3 thereof thus:-
"3.
In answer to paragraph 3 of
the Statement of Claim the Defendants say that the land in dispute is known
and called "Egebekori" and not
Okameimo Kiri as
stated by the Plaintiffs. The land in dispute is made of two parcels of
land; the one called "Ogiogio
Kiri" which Kanti or
Canti Ogungon
Inogha Egbelu with
the consent of Arose and Akarara, Plaintiffs'
predecessors in title sold to late Donald Egebe in 1930. The sale was
evidenced by a memorandum in writing which the Defendants will rely upon at
the trial...."
Still in respect of the
alleged sale the Respondents further pleaded in paragraph 11 thereof in the
following terms:
"11. In answer
to paragraph 8 of the Statement of claim the Defendants still say that this
land in dispute was bought by late Macdonald Egebe
from one Cantee. It is not true that one
Kanti Inogha allowed
Donald Egebe to settle temporarily on a portion
of the land in dispute. Evidence will be led to show that at the time of the
said sale Messrs Solomon Idoinyo,
Yagaman Igoni and
one Ikala were also present, who in fact later
helped Donald Egebe to open up the settlement."
From the pleadings of the
parties, both sides are in agreement that the Defendants/Respondents are on
the land in dispute. The Plaintiffs/Appellants' counsel appreciated and
restated this in the concluding part of his address at the trial court on
the 5/12/85 when in response to Appellants counsel's suggestion for an
action in forfeiture, he said at page 164 lines 26-28.
"...The remedy is (not) our discretion. We want them to stay on the land but
they should recognise our title. That is why we did not sue them for
trespass."
Both sides are also in
agreement that the Respondents' occupation of the land in dispute and
whatever rights they enjoy thereon was as a result of the act of Kanti. That
being the case it was not necessary to plead the actual delivery or handing
over of the land to them. Nor was it necessary to plead that they
(Defendants/Respondents) were put into possession, since the
Plaintiffs/Appellants had pleaded that they were put into possession by
Kanti since 1930. The main aim of pleading by a party is to give the
opposing party a fair notice and thus alert him of the case he has to meet
so as to enable him to prepare his own side of the case and thus avoid any
element of surprise. This principle of pleading has been stated and restated
in numerous cases. See
Union Bank of Nigeria Ltd (1995) 2
NWLR (Part 380) 647 at 663; Obijuru v.
Ozims (1985) 2 NWLR
(Part 6) 167; Richard Harold Sodipo v.
Lemminkainen Oy &
Anor (1985) 2 NWLR (Part 8) 547. The
Plaintiffs/Appellants having themselves pleaded that they, through Kanti,
handed over the land to the Respondents, albeit for temporary occupation, it
is idle for them to contend that the Respondents ought to have pleaded the
formal and symbolic handing over of the land. I hold that it was not
necessary to plead any formal handing over of the land in dispute. It was
therefore not necessary to plead ingredients (d) and (f) postulated above by
the Appellants' counsel. With respect to the remaining four ingredients of a
valid sale and transfer of family land, the essential facts constituting
these were copiously pleaded in paragraphs 3 and 11 reproduced above. The
sale, the fact that the sale was with the consent of the family, that it was
concluded in the presence of witnesses and the names of these witnesses were
all pleaded in the afore stated paragraphs 3 and 11 of the Amended State of
Defence. The other details of the same not pleaded were just the evidence by
which the sale was to proved and these need not be pleaded.
From the foregoing
considerations, the Appellants' complaint about the lack of or insufficiency
of pleading has no merit. It does not arise from the pleadings. The parties
in a case and the court are bound by the issues submitted for trial and
remain so bound from the court of trial to the final appellate court. An
issue not raised in the pleadings and therefore not tried at the court of
trial cannot be raised at the Appellate court through the ingenuity of
counsel. See
Balogun v.
Adejobi (1995) 1 SCNJ
242 at 264; (1995) 2 NWLR (Part 376) 131 at 158;
Olatunji v. Adisa (1995) 2
SCNJ 90 at 103; (1995) 2 N.W.L.R. (Part 376) 167
at 186. It is not surprising therefore that the issue being strenuously
pursued here was neither raised at the trial
court nor at the Court of Appeal.
Having regard to the facts
settled and admitted in the pleadings to the effect that the Appellants are
on the land and have been there since 1930 on the authority Kanti, the sole
question for determination is the nature of their rights over the land in
dispute. Was the land granted by Kanti to Donald Egebe for temporary
occupation only as pleaded by the Appellants? Or was it sold by him with the
consent of Arose and other members of the Appellants' family to Donald Egebe
as pleaded by the Respondents? But before the resolution of this ultimate
question there is the fundamental question of who was this man Kanti in
relation to the land in dispute. It was a common ground that Arose was a
member of the Appellants' family. It was even the case of the Appellants
that she became head of their family on the death of her father. But the
case of the Appellants as pleaded is that Kanti was only a maternal brother
of Arose with no intrinsic or blood relationship with the Appellants'
family. He was, according to their case, therefore a stranger having no
authority to sell the land in dispute to the Respondent's ancestor Donald
Egebe.
On the other hand, the case of
the Respondents was that Kanti was a member of the Appellants' family or at
least that he was represented and held out as such with authority to sell
the land to their ancestor Donald Egebe. The learned trial judge identified
this issue in the course of his deliberations on the case at page 171 of the
record where he stated:
"Another important matter that arises from that is whether the plaintiffs
are from Ikoni family as they said or from Kanti
family as the Defendants claimed."
On this issue of whether the
Plaintiffs/Appellants' family is called Kanti or that Kanti is from that
family, the Respondents, at the trial, relied heavily on
Exh. D5 wherein the
Appellants' family was described as the Kanti Family. For reasons
stated in the judgment at pages 173-175 of the record the learned trial
judge accorded probative value to the document. I have no cause to fault his
reasoning and conclusion on that document.
Still on this issue the
Defendants/Respondents again relied heavily on Exhibit D2. At pages 5-14 of
the Appellants' Brief of Argument B.E.I.
Nwofor, SAN proffered extensive arguments on the
inadmissibility of the said Exhibit. As I stated earlier on the 17/4/2007 in
the course of his oral submission, he conceded that the document was
admissible and rightly admitted. The said Exhibit D2 was allegedly written
by the PW7 and so he was, with the leave of court, called after the
Defendants/Appellants had closed their case. He was confronted with Exhibits
D8 and D9 which were documents signed by him. The learned trial judge
invoked his powers under sections 99, 100 and 107 of the Evidence Act to
carry out some comparison of his signature in these documents and that in
Exhibit D2 and concluded that Exhibit D2 was prepared by the PW7. In coming
to that conclusion he also accorded credibility to the evidence of the DW2.
I have also examined the documents and the evidence of the PW7 and DW2 and I
have no doubt in my mind that in coming to the conclusion, the learned trial
judge carried out a thorough evaluation. I have no cause therefore to
interfere with his findings on Exhibit D2.
The matter has not ended
there. In coming to his conclusion the learned trial judge also relied on
some oral testimony of the Plaintiffs witnesses which supported the case of
the Defendants/Respondents. First is the evidence of the PW2 who said under
cross-examination thus:
"Kanti and the Plaintiffs are of the same family."
This evidence is at page 96
lines 9-10 of the record. The next is the PW3. He also said under
cross-examination:
"I
know that Kanti and Plaintiffs are
from the same family."
This piece of evidence is
recorded at page 97 lines 20-21 of the record. And the evidence of the PW6
is also relevant on this issue.
He said in his evidence in chief at page 103 lines 25-29 thus:-
"It was Pencyl and Kanti
that gave me permission on behalf of Ikoni to
saw trees. Pencyl is a son of Arose. Arose is
from Ikoni family. Pencyl
and Kanti were elders of the
Ikoni family at that time."
The foregoing pieces of
evidence from the PW2, PW3 and PW6 firmly supported the case of the
Defendants/Respondents that Kanti was a member of the Plaintiffs/Appellants'
family. It is my firm view that the totality of the evidence from Exhibits
D2 and D5 the oral testimony of the defence witnesses and the evidence of
the PW2, PW3 and PW6 is overwhelming in favour of the case of the
Defendants/Respondents that Kanti was from the Appellants' family and had
the authority to sell the land in dispute to the Respondents' ancestor,
Donald Egebe.
On this issue the learned
trial judge had this to say at page 189-190 of the record:
"I
believe the Defendants that
sometime in 1930 that George Oruh asked
Egebe whether he would like to buy land and that
when he said that he would like to buy a land that George
Oruh took him to Kanti who later brought in his
sister Arose and a man Akarah and in the
presence of DW2 and others, the Plaintiffs' family sold to Egebe the land in
dispute- Egebe Kiri after which Egebe moved in and occupied the land and
further that in 1949, Kanti in the presence of and with the consent of Arose
and Akarala, made out Exhibit D2 to record what
happened in 1930 and which was written by PW7."
This finding was endorsed by
the Court of Appeal in its judgment and I do not fancy any conceivable
reason to do otherwise. It is the only reasonable finding and conclusion
from the very strong evidence in favour of the Defendants/Respondents.
This issue of whether Kanti
was a member of the Plaintiffs/Appellants' family also virtually settles the
ultimate issue of whether in 1930 he only granted Donald Egebe temporary
occupation of the land in dispute or he, acting for and with the consent and
authority of the Plaintiffs' family sold the land to him. As I have already
stated above the learned trial judge thoroughly evaluated the evidence, oral
and documentary. At the concluding part of his judgment he made the
following findings:-
"After evaluating the evidence adduced on both sides, I find as a fact that
sometime in 1930 that George Oruh took Donald
Egebe to Kanti, a member of the Plaintiffs'
family who later brought his sister Arose and Akarala
and in the presence of the DW2 and others and that with the consent of Arose
and Akarala, Kanti
sold to Donald Egebe the land in dispute which Egebe occupied and planted
some economic crops on it.
Further that in 1949 Kanti with the consent of Arose and
Akarala gave Egebe
Exhibit D2 to record the transaction which took place in 1930."
These findings were again
endorsed by the Court of Appeal. In its judgment the Court of Appeal, per
Ogebe JCA, stated at
page 301 of the record:
"It is not disputed that they (Plaintiffs/Appellants) were the original
owners of the property. Even by their own showing that their ancestors gave
it to the Respondents' father for temporary occupation but the Respondents
were able to show that it was more than. It was an outright sale to him and
the court believed this evidence. I see no cause whatsoever to interfere
with the clear finding of fact of the trial court, which was based on the
evidence before it...."
I agree entirely with the view
expressed by the Court of Appeal. In view of the overwhelming evidence in
favour of the Defendants/Respondents part of which I have noted above and
particularly having regard to the contents of Exhibits D2 and D5, the
evidence of the defence witnesses which the trial court assessed as credible
and aspects of the evidence of the PW2, PW3 and PW6 which supported the case
of the Defendants/Appellants, both the trial court and Court of Appeal had
no choice but to find in favour of the Defendants/Respondents. There is
therefore no cause for any interference with the concurrent findings of the
courts below.
On the whole and in view of
all I have considered above, I hold that there is no merit in the appeal
which is accordingly dismissed. I assess the costs of this appeal at
Judgment Delivered by
Aloysius
Iyorgyer Katsina-Alu.
J.S.C.
I have had the advantage of
reading in draft the judgment delivered by my learned brother Tabai J.S.C. I
agree with it and, for the reasons he gives I, too, dismiss the appeal with
Judgment Delivered by
George
Adesola Oguntade.
J.S.C.
I have had the advantage of
reading in draft a copy of the lead judgment by my learned brother Tabai
J.S.C. He has ably and comprehensively dealt with the issues in this appeal.
I agree entirely with him. I would also dismiss this appeal with costs as
assessed in the lead judgment.
Judgment Delivered by
Mahmud Mohammed.
J.S.C.
The action on a land dispute
from which this appeal arose was fought between the Appellants as Plaintiffs
and the Respondents as Defendants in representative capacities for and on
behalf of their respective families before the Rivers State High Court of
Justice Port-Harcourt. The matter which was commenced since 1975 by a Writ
of Summons was heard on pleadings exchanged between the parties. In the
course of the hearing of the case at the trial Court, the
Appellants/Plaintiffs called seven witnesses to prove their case for
declaration of title to the parcel of land in dispute. The
Respondents/Defendants on their part called five witnesses to support their
case asserting title to the same parcel of land.
The case of the
Appellants/Plaintiffs was that the parcel of land in dispute is part of
their family land; that their family allowed one Donald Egebe, who was the
Respondents/Defendants' ancestor, to settle temporarily on part of their
family land, on the condition that he was only to build a thatch house. It
was part of the Appellants/Plaintiffs' case that no portion or part of their
family land was at any time ever sold by the family or by any member of the
family to the ancestor of the
Respondents/Defendants, Donald Egebe.
The Respondents/Defendants
however in their defence to the action against them had asserted titled to
the land in dispute claiming to have brought the same through their ancestor
Donald Egebe from one Kanti, a member of the Appellants/Plaintiffs' family
sometime in December, 1930. The Respondents/Defendants also denied part of
the case against them that their ancestor Donald Egebe was merely allowed to
settle temporarily on the land, maintaining that Donald Egebe was on the
land in dispute by virtue of purchase of the same under Native Law and
Custom.
It was therefore common ground
between the parties that the land in dispute originally belongs to the
family of the Appellants/Plaintiffs from whom the Respondents/Defendants are
claiming to have bought the same under Native Law and Custom in 1930. The
question therefore was whether or not the Respondents/Defendants upon whom
the burden of proof had shifted upon admitting that the original title to
the land in dispute lay with the Appellants/Plaintiffs,
had succeeded in proving a valid sale and transfer of title to them under
Native Law and Custom. The learned trial judge in his judgment delivered on
4th February, 1986 at the end of the hearing, dismissed the
Appellants/Plaintiffs' claim for declaration of title to the land in dispute
having made a finding that the land in dispute was sold by the
Appellants/Plaintiffs' family to Donald Egebe, the Respondents/Defendants'
ancestor. The Appellants/Plaintiffs' appeal to the Court of Appeal against
the judgment of the trial Court was dismissed on 22nd May, 2002
and part this of judgment containing reasons for the dismissal of the appeal
at page 301 of the record of the appeal reads –
"The third issue is whether or not the Appellants proved their claim of
ownership by credible evidence. It is not disputed that they were the
original owners of the property. Even by their own showing that their
ancestors gave it to the Respondents' father for temporary occupation but
the Respondents were able to show that it was more than that, that it was an
outright sale to him and the Court believed this evidence. I see no cause
whatsoever to interfere with this clear finding of fact of the trial Court
which was based on the evidence before it."
The Appellants/Plaintiffs'
further appeal to this Court, is against this judgment of the Court below
mainly on the question of proof of sale of the land in dispute under Native
Law and custom.
The requirements of the law
regarding the proof of root of title to land pleaded by a party in claim for
declaration of title arising from a grant, or a sale, is well settled.
In
Fasoro
v. Beyi-Oku (1988) 2
N.W.L.R. (PT. 76)
263 at 271, it
was stated as follows –
"Where a parties root of title is pleaded as say a grant, or sale or
conquest etc, that root has to be consequential acts following there from
can then properly qualify as acts of ownership."
The law in this respect is
also settled that to transfer an absolute title under customary law, it
ought to be pleaded and proved by evidence that the sale was concluded in
the presence of witnesses and the names of those
witnesses should also be pleaded as the fact that
they witnessed the actual delivery or handing over of the land to the
purchaser. See
Folarin
v. Durojaiye (1988)
1 N.W.L.R.
(PT. 70) 351 at 365.
In the instant case, the
Respondents/Defendants have pleaded their root of title in the sale of the
land in dispute to their ancestor Donald Egebe. The relevant paragraphs 2a,
5 and 11 in their amended statement of defence at pages 85, 87
and 89 of the record are as follows:
"2a. The
Defendants will at the trial rely on receipt dated 19th April,
1975 for compensation paid in respect of oil exploration on the land in
dispute to the Plaintiffs, Defendants and one Ibokolo
family by one Chief Olali
Bigold Ebahbofa with whom the said
parties voluntarily deposited the said compensation. The Defendants will at
the trial contend that the Plaintiffs having represented themselves as
members of Kanti family in the said transaction are
estopped from denying the
same. Defendants will further rely on Plaintiffs' then Solicitors letter
dated 17th March, 1975 to same effect.
5.
The Plaintiffs now claim ownership of this land because of the death
of late MacDonald Egebe the head of the Defendants' family; the Plaintiffs
will therefore be put to the strictest proof of paragraph 3 as to the
ownership during the trial.
11.
In answer to paragraph the Defendants still say that this land in
dispute was bought by late MacDonald Egebe from
one Cantee. It is not true that one
Kanti Inogha allowed
Donald Egebe to settle temporarily on a portion
of the land in dispute. Evidence will be led to show that at the time of the
sale Messrs. Solomon Idoinyo,
Yagaman, Igoni and
one Ikata were also present, who in fact later
helped Donald Egebe to open up the settlement. Also before the sale
Cantee, the vendor made public announcement for
any claimant to advance his claim within 7 days. No one objected to the
sale. Earlier judgments in the Nembe Native
Court Nos. 113/49 and 238/49 had given judgment to the Defendants' family as
owners of this land in dispute, and these judgments, will be forwarded upon
at the trial."
At the end of the hearing of
the witnesses called by the parties in support of their respective
conflicting claims of title to the land in dispute, the learned trial judge
after reviewing the evidence, preferred the evidence adduced by the
Respondents/Defendants in proof of the sale of the land in dispute to their
ancestor Donald Egebe and dismissed the Appellants/Plaintiffs' claim for
declaration of title. Part of that judgment at pages 187-188 of the record
containing some of the reasons given by the learned trial judge reads –
"Besides the evidence of DW1 that Kanti sold the land to Egebe with the
consent of Arose and that Kanti was the head of the family, DW2 who said
that he witnessed the whole transaction said as follows:-
'I
know the land called Egebe Kiri. About 1930, one George
Oruh met Egebe at
Nembe and
asked him whether he would
buy land. Egebe said that he would buy the land. Oruh
said that the land was not his own and then took him to the owner. I and one
Joshua Gbolofa took Egebe
to Dogu Ewoama. We
went to George Oruh's house at
Ewoama. He sent for the owner of the
land, one
Kanti Ogongo from
Akakumama. Egebe asked him to show him the land. Kanti said that he
should come to Akakumama to meet his family. Kanti went to Akakumama and
came with his people to Dogu,
Ewoama. Then we went to the land a place called
Ogiogio. Kanti then sold the land to him. The
members of his family that he came with were Arose a woman and a man called
Akarala Omoukori.'
"The Defendants have not only
shown the people that were present on both sides during the transaction but
also the place and that was in 1930.
I will rather prefer the
evidence of DW1 and DW2 to the evidence of the Plaintiffs. This view, is
fortified by the fact that DW2, the key witness for the Defendant withstood
all the cross-examination and was never shaken, he is an old man of over 75
years and I believe him that he saw everything that transpired”
Thus, having regard to the
relevant facts pleaded in their Amended Statement of Defence and the
evidence adduced by the witnesses in support of the purchase of
the land in dispute under Native Law and Custom by the
Respondents/Defendants from the family of the Appellants/Plaintiffs, the
requirements of the law in support of the transfer of title by sale, have
been fully satisfied as correctly found by the trial Court and affirmed by
the Court below. Further more, the Appellants having failed to discharge the
heavy burden placed upon them by law for this Court to disturb the
concurrent findings of fact in the judgments of the two Courts below, I
entirely agree with my learned brother Tabai, J.S.C, in his lead judgment
which I have had the privilege of reading before today, that there is no
merit in this appeal. Accordingly I also dismiss the appeal and abide by the
order on costs in the lead judgment.
Judgment Delivered by
Christopher Mitchell
Chukwuma-Eneh. J.S.C.
I have read in advance the judgment in this matter prepared by my learned brother Tabai J.S.C. I agree with him that the concurrent decisions of both lower Courts are solidly grounded and that the appeal lacks merit and should be dismissed. I also dismiss it. I endorse the orders in the judgment.
Counsel
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