Chief Gibson Pencyl Orunengimo & Anor V. Madam Margaret Egebe & Ors (2007)
LAWGLOBAL HUB Lead Judgment Report
F. TABAI, J.S.C
The judgment is sequel to an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered 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 Rivers State but now of Bayelsa State. The defendants therein are the respondents both at the court below and in this court.
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 Membein 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 annual value of N20.00 (Twenty Naira).
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 plaintiffs’ 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. 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 lightly 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 defendants/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 the 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 (Pt. 70) 351 at 364, Bullen and Leake and Jacob’s Precedents of Pleadings 12th Edition Page 39 and Re Parton, Townsnd 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 all 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 of “Obukiri”. On the duty on the respondents to plead the essential ingredients and the effect of the failure so to do he relied on, Abayade Cole v. Folami (1956) SCNLR 180 at 182-183; Erinosho v. Owokoniran (1965) NMLR 479 at 483; Folarin v. Durojaiye (supra); Taiwo v. Ogunsanya (1967) NMLR 375; Ajadi v. Olarewaju (1969) 1 All NLR 382 at 389, and Egonu v. Egonu (1978) 11’9712 SC 111 at 131’97132. 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 ‘a320.00 as against the version that the sale price was ‘a370.00 out of which he paid ‘a365.00 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 ‘a365.00 was paid leaving a balance of E5.00 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 Adio (1993) 7 NWLR (Pt. 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 to the case of the appellants. He relied particularly on Uzochukwu & Ors. v. Amaghalu Eri & Ors. (1997) 7 NWLR (Pt. 514) 535 at 550-557; Edward Egonu v. Madam Eziamaka Egonu (1978) 11-12 SC 111 at 331-132 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 reference was 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 XXX 111 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.) Ltd. v. I.B.WA. (1988) 1 NWLR (Pt.73) 658, (1988) 19 NSCC (Pt. 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 Okochi & Ors. v. Animkwoi & Ors. (2003) 18 NWLR (Pt. 551)1 at 24; Mobil Producing (Nig.) Unlimited v. Francis Johnson Asuah (2001) 16 NWLR (Pt.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 appellants 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 (Pt. 822) 308 at 340-341, Elf Petroleum (Nig.) Ltd. v. Onyekwelu (2002) 17 NWLR (Pt. 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 frum the entire amended statement of defence that the portion in dispute is Ogiogio Kiri. 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. DW 1 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 Egbe 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 counterclaims. See Simon Ojiako & Anor: v. Ewuru & Ors. (1995) 9 NWLR (Pt. 420) 460; Ijama Orika Odiche v. Ogah Chibogwu (1994) 7 NWLR (Pt.354) 78 at 87-88; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 at 184; Imah v. Okogbe (1993) 9 NWLR (Pt. 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 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 pleading 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/407/76LD 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 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 evidence 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 Canteen. 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 appellant’s counsel 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 (defendant/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. v. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 663; Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167; Richard Harold Sodipo v. Lemminkainen & Anor. (1985) 2 NWLR (Pt. 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 statement 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 (Pt.376) 131 at 158: Olatunji v. Adisa (1995) 2 SCNJ 90 at 1103:(1995) 2 NWLR (Pt.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 of Kanti, the sale 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 respondents’ 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 Kanti 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 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 lkoni 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 exhibit 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 Gruh 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 Kit; 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 Gruh 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 that 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 record 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, and PW3 and PW6 which supported the case of the defendants/appellants, both the trial Court and the 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 N10,000.00 against the plaintiffs/ appellants.
SC.254/2002
