Moses Okhuarobo V. Chief Egharevba Aigbe (2002)
LAWGLOBAL HUB Lead Judgment Report
I. IGUH, J.S.C.
The appellants are the surviving defendants in a suit instituted by the plaintiff at the then High Court of Justice, Bendel State wherein the plaintiff’s claims as set out in paragraph 40 of his amended statement of claim are as follows:
“(a) A declaration that the plaintiff is entitled to a statutory right of occupancy to all that house, land and premises situate at and generally known as No. 192, 2nd East Circular Road, in ward “E” council otherwise known as ward 10 ‘E’ in Oredo Local Government Area, Benin city in the Benin Judicial Division and that the purported sales of the said property by the 1st, 4th and 5th defendants to the 2nd defendant is void and of no legal effect whatsoever.
(b) N10,000.00 damages for trespass committed by the defendants and or their servants and agents on the said house and premises on or, about the 16th day of January, 1978.
(c) An order of the court to set aside the sale of the said property by the 1st, 4th and 5th defendants to the 2nd defendant on or about the 5th day of October, 1976.
(d) A perpetual injunction preventing the defendants their servants, agents and privies from intermeddling with the said property in any manner inconsistent with the plaintiff’s right now and in the future”.
The 1st, 2nd and 3rd defendants set up a counterclaim in paragraph 27 of their further amended statement of defence in which, as against the plaintiff, they claimed thus:
“(a) A declaration that they are entitled jointly or severally to a statutory right of occupancy to all that property known as and situate at No. 192, 2nd East Circular Road, in ward ‘E’ council otherwise known as ward “10E” in Oredo Local Government Area, Benin city within the Benin Judicial Division.
(b) N10,000.00 (Ten thousand naira) being damages for trespass committed on the building by the servants or agent of the plaintiff.
(c) An order of perpetual injunction restraining the plaintiff, his servants and or agents, privies from interfering with the said property in any manner inconsistent with the defendants rights over the said property”
In this land dispute, therefore, both parties claimed entitlement to a statutory right of occupancy to all that house and premises situate at and known as No. 192, 2nd East Circular Road, Benin city, damages for trespass and perpetual injunction.
It is clear from the pleadings of the parties and their oral evidence before the trial court that the main issue between them is as to who has a better title to the premises in dispute. It is also not in dispute that the principal contestants, to wit, the plaintiff of the one part and the 1st and 2nd defendants of the other part claimed respectively to have derived their title to the property from a common vendor, to wit, Uwague Ehanire.
From the state of the pleadings, it is crystal clear that the plaintiff’s root of title is founded on a gift of the property in dispute by the said Uwague Ehanire to the plaintiff in appreciation for domestic services rendered. This is pleaded in paragraph 8 of the plaintiff’s further amended statement of claim as follows:
“8. The plaintiff avers that about 1909, the plaintiff was houseboy to his late cousin, Uwague Ehanire who died in the early 1950s.
- In appreciation of the service the plaintiff rendered to the said Uwague Ehanire, the latter excised a portion of his piece of land measuring 55 x 100 feet and gave it to the plaintiff.”
The defendants, for their own part, denied the plaintiff’s averments and in specific answer to paragraph 9 of the further amended statement of claim grounded their root of title to the property in dispute by virtue of a sale of the house to the 1st defendant’s father for the sum (19 pounds) of N38.00. They pleaded in paragraphs 6 and 7 of their further amended statement of defence as follows:
“6. With particular reference to the denial of paragraph 9 of the further amended statement of claim the defendants will at the hearing of this suit adduce evidence to establish that one Uwague Ehanire now deceased on the 14th day of March, 1950 transferred a portion of his land measuring 42ft by 100ft along second east circular road, Benin city to one Okhuarobo Egbarevba (spelt Egharevba) now deceased for a consideration of (19 Pounds) now (N38.00). A receipt evidencing the said transaction dated 14/3150 shall be relied on at the hearing of this suit.
- The land transferred or sold to the said Okhuarobo Egharevba was later known as No. 192, 2nd East Circular Road, Benin city.”
It is clear from the state of the pleadings that the main issue joined by the parties is whether the property in dispute was acquired by the plaintiff by way of gift from the said Uwague Ehanire in consideration of loyal and past domestic services rendered or whether it was acquired by the 1st defendant’s father by way of sale from the said Uwague Ehanire for the sum of 19 pounds or N38.00.
The learned trial Judge in his consideration of this vital issue said of the plaintiff’s evidence as follows:
“In his (meaning the plaintiff’s) evidence-in-chief, the plaintiff was, completely silent as to how he acquired his title. It was not until under cross-examination that he stated how he acquired the land. And he stated that he acquired title by purchase of the land for the sum of 40 pounds from Ehanire Uwague. This is diametrically opposed to his pleadings where he said that the parcel of land was given to him as a gift by Ehanire Uwague whom he had served faithfully as a houseboy.”
There can be no doubt that the evidence of the plaintiff with regard to his root of title is completely at variance with that averred and relied upon in his pleadings.
In the first place, it is a well established principle of law that if the evidence of a party is at variance with the averment in his pleadings on a material and relevant point, the claim would fail and stand dismissed. This is because parties are bound by their pleadings and evidence which is at variance with the averments in his pleadings goes to no issue and should be disregarded by the court. See Emegokwue v. Okadigbo (1973) 4 SC. 113, Odumosu v. A.C.B. (1976) 11 S.C. 55. Kalu Njoku & Ors v. Nkwu Eme and Ors. (1973) 5 S.C. 293, Mogaji and Others v. Cadbury (Nigeria) Ltd. and Others (1985) 2 NWLR. (Pt. 7) 393 etc. Accordingly, where from the evidence led, title of the plaintiff. if any, was a title at native law and custom but his claim as pleaded was for title in fee simple, the nature and incidents of which are very different, such claim would be liable to dismissal. See Commissioner for Works Benue State and Another v. Devcon Development Consultants Ltd. & Anor. (1988) 3 NWLR (Pt.83) 407, Rihawi v. Aromashodun (1952) 14 WACA 204, Ochonma v. Ashirim (1965) N.M.L.R. 321. In the same vain, evidence must be directed and confined to the proof or disproof of the issues as settled in the pleadings and trial courts must limit themselves to the issues raised by the parties in their pleadings as to do otherwise might well result in the denial to one or the other of the parties of his right to fair hearing See Metalimpex v. A.G. Leventis and Co. Ltd (1976) 2 S.C. 91, Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514, Alhaji Ogunlowo v. Prince Ogundare (1993) 7 NWLR (Pt.307) 610 at 624, Kalio v. Kalio (1977) 2 S.C. 15.
Consequently, parties cannot deviate from their pleadings unless such pleadings are duly amended by the court and the court cannot found its judgment on the evidence of material facts not pleaded as such evidence. in law, goes to no issue. See Shell B.P Ltd. v. Abedi (1974) 1 All NLR (Pt.1) 1.
In the second place, it is a fundamental and well established principle of law applicable to claims for declaration of title to land that it is for the plaintiff to satisfy the trial court on the evidence produced by him that he is entitled to such a declaration. In discharging this onus, the plaintiff must rely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336, Frempong v. Brempong (1952) 14 WACA 13. This rule is however subject to the important exception that the defendant’s case may itself support the plaintiff’s case and contain evidence on which the plaintiff is entitled to rely. See Akinola v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR (Pt.2) 224 at 225, Oduaran v. Asarah (1972) 1 All NLR (Pt. 2) 137. This exception is not, however, applicable to the facts of the present case.
It is not in doubt that the court below appreciated the ground upon which the trial court dismissed the plaintiff’s claim for declaration of title for it had cause to observe:-
“The main reason given by the learned trial Judge for refusing to grant plaintiff’s claim for declaration was that plaintiff deviated from the pleaded source of his title which was a gift of the land in dispute from his late cousin, Uwague Ehanire, by testifying in the court that he bought it from the same person.”
The finding by the trial court that the plaintiff’s oral testimony before it was in contradiction of the averment as to his root of title as pleaded was not controverted or faulted in any way. On this ground alone, it seems to me that the court below would appear to have no other option open to it than to affirm the dismissal of the plaintiff’s action for declaration of title to the property in dispute. True, the court below tried to justify its departure from the above with established principle of law. In this direction it held that since the learned trial Judge did not reject the evidence of PW6 and PW7 his failure to take their testimony which came within the plaintiff’s pleadings into consideration was a major omission on his part as a result of which the court below would be entitled to interfere with the trial court’s evaluation of the facts placed before it in the case. I cannot, with profound respect, accept this line of reasoning as entirely sound. The simple reason for this is that it is indisputable that the evidence of the plaintiff is at complete variance with and did not support his pleaded root of title and the plaintiff, to succeed in his claim for title, must establish proof of the root of title pleaded and claimed. This he failed to do. In my view the burden on the plaintiff in proof of his claim for title to the property in dispute was not discharged and the proper judgment in the circumstance is one of the dismissal of his claim in respect of title to the property.
It must however be pointed out that neither PW6 nor PW7 gave any material evidence in proof of the plaintiff’s pleaded root of title. Although PW6 the plaintiff’s son, claimed that he knew how his father got the land and that it was given to him in 1950 by one of his relations called Uwague Ehanire, he admitted under cross-examination that he had no personal knowledge of the transaction he testified about. He said:-
“It is true that I had not been born at the time my father lived with Uwague Ehanire.
I was not a witness to the transaction in which Uwague Ehanire gave the land to my father but my father told me. He also told me that he lived with Uwague, but did not tell me for how long. I do not know the village that Uwague came from; but I learnt that he was living at Igun Street in Benin city. I cannot tell when he died.”
His evidence on the matter was therefore entirely hearsay and at all events, contradictory with the evidence of the plaintiff himself that he bought the land for 19 pounds or N38.00.
In the case of PW7, it is apparent from a close study of his evidence that no part thereof touched on the plaintiff’s pleaded root of title. I am therefore in agreement with the submission of learned counsel for the appellant that there is nothing on the evidence of either PW6 or PW7 on the issue of the plaintiffs pleaded root of title which was capable of faulting the decision of the learned trial Judge in his dismissal of the plaintiff’s claim for title to the property in dispute I think, with respect, that the court below was in definite error to have interfered with the said decision of the trial court on the issue.
The conclusion I have therefore reached is that there is no legal evidence of whatever nature in proof of the plaintiff’s root of title as pleaded by him in his further amended statement of claim. Under such circumstance, this claim for title cannot but fail.
On the issue of the claim of both sides in respect of trespass, it is the finding of the learned trial Judge that possession of the premises in dispute was at all times and certainly since 1950 in the plaintiff. Said the learned trial Judge.
“I now come to the evidence given by either side in support of the claim for trespass which is a legal right attached to possession. The first issue to decide in this regard therefore is as to who was in possession as at the time of the acts which brought about this suit. I have closely examined the evidence and come to the conclusion the defendants were never really in possession in their own right. I am satisfied that when 1st and 4th defendants lived in that house they did so at the sufferance of the plaintiff.
Plaintiff, on the other hand, gave overwhelming evidence of possession over the years. First, although he lived in the village, he always lived in the house when he visited Benin city. Secondly, I accept his evidence that from the 1950s he let all his children who were attending school in Benin city to live in the house. He also allowed his grandchildren (including the 1st and 4th defendants) to live in the house. Thirdly, he had tenants who were living in the house and who paid rents through the 6th PW to his son Robert (7th PW). Fourthly, plaintiff had various documents relating to the house which showed that he was in possession. He gave custody of these documents to his son, Robert (7th PW) who tendered them in evidence. They included twelve water rate bills (exhibits N – N111) which he settled.
The next question is whether plaintiff’s possession was interfered with. From the evidence before me I am satisfied that the 1st, 2nd and 3rd defendants interfered with plaintiff’s possession. I am satisfied that when 6th PW and the tenants in the house refused to heed the various letters (exhibits G, H, O and O1) written to them, the 1st to the 3rd defendants decided to use force by removing the roofing sheets, door frames and window frames of the house. I believe 6th PW absolutely that he saw the three of them engage in the act. Exhibit A and A1 (the photograph and negative) confirm the havoc that was done to the house. I am not impressed by the evidence given in denial by the 2nd and 3rd defendants. They gave no satisfactory explanation as to why 6th PW should pick on them as the perpetrators of the act. In other words, I am satisfied that plaintiff has proved his case for trespass which 1st and 2nd defendants have failed to prove their counter claim for trespass.” (Italics supplied for emphasis).
He then proceeded to award N9,000.00 as general damages to the plaintiff against the 1st, 2nd and 3rd defendants for “the most barbarous act of trespass committed by the three defendants”. He went on:
“Plaintiff’s claim for damages for trespass succeeds and damages in the sum of N9,000.00 are hereby awarded against the 1st, 2nd, 3rd defendants jointly and severally.”
These findings of the learned trial Judge in favour of the plaintiff on the issue of possession have not been faulted and were in fact affirmed by the court below. I think both courts below are right on the issue. This is because, the trial court, earlier in its judgment had found that the defendants’ counterclaim for title to the premises was unsatisfactory. I will, however, revert to this aspect of his findings later in this judgment. It suffices for now to state that where the plaintiff’s title is defective and that of the defendant is also defective and the plaintiff is in possession, then the plaintiff can rightly maintain an action for trespass. See Adeshoye v. Shiwoniku 14 WACA 86. This is because only a person in possession of land in dispute can rightly maintain an action for damages for trespass. See Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt.136) 37. Adebanjo v. Brown (1990) 3 (Pt.141) 661. No doubt, the plaintiff’s action in declaration of title to land in dispute failed, this did not necessarily mean that his action on damages for trespass on the same property must fail. See Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578, Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 296 etc.
There is next the issue of perpetual injunction from which the plaintiff tried to protect his established possessory rights in and over the property. This claim was dismissed by the trial court on the sole ground that the plaintiff’s claim for title had failed. He said:
“From the foregoing, it is clear that I am of the view that plaintiff’s claim for title to the land in dispute has not been made out. It follows automatically that his claim for injunction also fails”.
This decision of the learned trial Judge on the question of injunction was rejected by the Court of Appeal when upon a close consideration of the issue it concluded thus:-
“…the learned trial Judge also totally failed to take into consideration the evidence of uninterrupted occupation of the house now in dispute by the plaintiff up to the time when the 2nd defendant took steps to eject the plaintiff’s children and the plaintiff’s tenants living in the house shortly before this action was instituted and after the purported sale of the house by the 1st and 4th defendants to the 2nd defendant in 1976 as per exhibit Q. My conclusion therefore is that the appellant led satisfactory evidence before the lower court to warrant his being granted….the injunction he claimed. I therefore allow the appeal in respect of the 1st and 4th arms of the claims.”
In so far as the plaintiff’s claim for perpetual injunction in protection of his established possessory rights in respect of the property are concerned, I think the Court of Appeal is right in that regard. It is on the question of declaration of title to the property in dispute that I think the court below was in error by reversing the trial court thereupon.
Turning now to the defendants’ counter claim, the trial court after a consideration of the evidence stated thus:-
“Again, from the evidence before me, I am satisfied that the 1st and 2nd defendants have offered a reasonably better evidence in support of their counter claim for title. Judgment will therefore be given for them in respect of that arm of the counter claim. Their claim for injunction also succeeds. Their claim for damages for trespass however fails.”
It then concluded.
“(c) The counterclaim of the 1st and 2nd defendants succeeds in respect of the 1st and 3rd arms, and it is hereby declared that they are entitled jointly and severally to a statutory right of occupancy to all that property known as and situate at No. 192, 2 east circular road, Benin city, in ward 10E in Oredo Local Government Area, Benin city within the Benin Judicial Division.
An order of perpetual injunction is also granted in their favour restraining the plaintiff, his servants and/or agents, privies, from interfering with the said property in any manner inconsistent with the said defendants’ rights over the said property.
(d) The 2nd arm of the counterclaim of the 1st and 2nd defendants is hereby dismissed.
(e) The order of injunction granted in (c) above against the plaintiff will only become operative on the 1st, 2nd and 3rd defendants or any of them paying the sum of N9,000.00 ordered in (a) above direct to the plaintiff or through the court to him.”
This decision of the trial court in favour of the defendants on the issue of title to the land in dispute and perpetual injunction was faulted by the Court of Appeal which was of the opinion that the 1st and 2nd defendants had not established satisfactory evidence in proof of their entitlement to both arms of their counter claim. In my view, the Court of Appeal is on firm ground in this regard.
In the first place, the learned trial Judge after a close consideration of the evidence of both parties arrived at the unequivocal conclusion that both parties had not succeeded in establishing “satisfactory proof” of their claims to title to the property in dispute. He said:
“Having examined the evidence with particular reference to these crucial paragraphs of the pleadings on both sides, I am of the view that neither side has given particularly satisfactory proof of their claims to title. Strange enough neither side called evidence from the common vendor or from his successors.”
The above is a definite finding of fact on the part of the trial court in the face of which, speaking for myself, the defendants’ counterclaim for title to the property cannot be sustained having regard to their alleged root or title which they were unable to establish. No doubt, it would appear that there was no defence filed in reply to the defendants’ counterclaim. This, however, is neither here nor there as the onus is as much on the defendants in their counterclaim as on the plaintiff in the main claim to establish their counterclaim in respect of title, trespass and injunction therein claimed. This onus they must, to succeed, discharge to the satisfaction of the court and on the evidence brought by them. In this regard, as already pointed out, the defendants, as plaintiffs in the counterclaim must rely on the strength of their case and not on the weakness of the case for the plaintiff. If this onus is not discharged the proper judgment will be against them. See Kodilinye v. Mbanefo Odu, Oduaran v. Asara (supra).
In the present case, the learned trial Judge who saw and observed the witnesses testify before him found in the clearest possible terms that, neither side to the dispute gave satisfactory proof of their claim to title to the property in dispute. In my view this finding cannot be faulted and it would, appear to conclude the case of the parties on the issue of title to the property in dispute. I am also not oblivious of the fact that the plaintiff for some undisclosed reason filed no defence to the defendants’ counterclaim. But as I have already observed, this cannot be any matter of great moment. This is because the court does not make declarations of right either on admissions or in default of defence without hearing evidence and being satisfied by such evidence. See Vincent Bello v. Magnus Eweka (1981) 1 S.C. 101, Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90, Wallersteiner v. Moir (1974) 3 All E.R.217 etc.
In the present case, the trial court heard the evidence of the parties and came out with a definite finding that neither side had established its root of title to the property in dispute as pleaded. I think these court below was right in the circumstance when it dismissed the 1st and 2nd defendants’ counterclaim in respect of title to the house in issue. It is also my view, having regard to all my observations above, that the defendants’ counterclaims in respect of trespass and perpetual injunction were rightly dismissed by the court below as they were neither in possession of the land in dispute nor did they establish any proprietary right or interest in respect thereof to be protected by an order of perpetual injunction.
In the final result, this appeal is allowed in parts and it is ordered as follows:
(i) Plaintiff’s claim for declaration of title to all that property known as No. 192 2nd east circular road in ward “E” council otherwise known as ward 10 in Oredo Local Government Area, Benin city in the, Benin Judicial Division is hereby dismissed.
(ii) Plaintiff’s claim for damages for trespass succeeds and the sum of N9,000.00 general damages are hereby awarded to the plaintiff against the 1st , 2nd and 3rd defendants jointly and severally.
(iii) There being no appeal against the order of the court below in respect of the setting aside of the sale of the property in issue by the 1st, 4th and 5th defendants to the 2nd defendant on or about the 5th day of October, 1976, no further orders in that regard will be made.
(iv) Perpetual injunction restraining the defendants, their servants, agents and privies from trespassing on or intermeddling with the said property in any manner inconsistent with the plaintiff’s possessory rights over the property is hereby granted.
(iv) All 1st, 2nd and.3rd arms of the counterclaims of the 1st and 2nd defendants fail in their entirety and are hereby dismissed. There will be no order as to costs.”
SC.82/1997
