Godwin Nsiegbe & Anor V. Obinna Mgbemena & Anor (2007)
LAWGLOBAL HUB Lead Judgment Report
A. KALGO, J.S.C
In the Rivers State High Court, Port Harcourt Judicial Division, the appellants as plaintiffs claimed against the respondents for-
“(i) A declaration that the plaintiffs are persons entitled to the rights or certificate of occupancy of the piece or parcel of land lying, situate and being at No. 43 Ikwerre Street, Diobu, PortHarcourt which is verged YELLOW on survey plan No. CABR/35LDI79 of 31st January, 1979.
(ii) A declaration that the instrument of transfer purported to have been issued by the Abandoned Property Authority to the defendant in respect of the building on this land is null and void and of no effect whatsoever and is hereby revoked;
(iii) An injunction to restrain the defendant whether by himself or his servants or agents or otherwise howsoever from interfering with the plaintiff’s rights of occupancy of the said land.” Pleadings were ordered, filed and exchanged between the parties who thereafter called witnesses in proof of their respective claims and/or defences at the trial. The learned trial Judge Dappa, J. delivered a considered judgment on 30th March, 1984 dismissing the claims of the plaintiff/appellant. The plaintiff/appellant then appealed to the Court of Appeal, Port Harcourt Division which also heard the appeal and dismissed it on 21st of May, 1991. Still dissatisfied, the appellant appealed to this court.In this court, the parties filed and exchanged their written brief as required by the rules of court. In their joint brief, the appellants formulated 3 issues for determination of this court as follows:-
Whether the Court of Appeal was right to uphold the judgment of the trial court on the ground of acquiescence
Whether from the pleadings and evidence in this case, the respondents are in possession of the land in dispute.
Whether the respondents are the owners of the land in dispute.The respondents in their joint brief also raised only 2 issues to be determined in the appeal. They read:-
(i) Was the Court of Appeal light to uphold the judgment of the trial court on the ground of acquiescence,
(ii) Was the Court of Appeal right when it held that the respondent was in constructive possession of the land in dispute.From the above, it is very clear to me that the two issues of the respondents are the same as issues (i) and (ii) of the appellants. Both issues are properly distilled from the 1st and 2nd grounds of appeal filed by the appellants. Issue (iii) of the appellants talks about the ownership of the land in dispute. The substance of ground 3 is to challenge the finding of the Court of Appeal to the effect that by virtue of the registrable instruments i.e. exhibits ‘B’ and ‘J’ the respondents did not get any legal interest in the land in dispute. This is clearly relevant to the ownership of the said land. It is therefore my view that issue (iii) is properly distilled from ground of appeal 3 of the appellants and will be considered in the appeal. I now consider the issues raised by the appellants in the appeal.
Issue 1. This issue asked “whether the Court of Appeal was right to uphold the judgment of the trial court on the ground of acquiescence”. In this issue the main grouse of the appellants is that the learned trial Judge decided the case on acquiescence which was not pleaded by the respondents in their statement of defence without giving the appellants the opportunity to address the court on the matter, and the Court of Appeal brushed this aside and held that acquiescence was raised by the respondents at the trial.
Let me begin by defining “acquiescence”. “Acquiescence” means assent to an infringement of rights either express or implied from conduct by which the right to an equitable relief is lost. It takes place when a person with full knowledge of his own rights and of any acts which infringe them, has, either at the time of infringement or after infringement by his conduct led the persons responsible for the infringement to believe that he waived or abandoned his rights”. (See Dictionary of English Law by Earl Jowitt, 2nd Edition, 1965, page 36).
In this case, the learned trial Judge after reviewing the facts of the case in his judgment came to conclude thus:-
“Save for the evidence by the 2nd plaintiff that the defendant came measuring the land, that Dandeson Owhonda Nsiegbe asked him to stop measuring it, but that he refused which evidence, however is not based on pleadings, there is no iota of evidence that Dandeson Owhonda Nsiegbe made any protests at all during the time the building was erected by the defendant….
The inference I draw from all this is that Dandeson or Dandeson Nsiegbe … did not throughout the time the defendant was building the house on the land protest against his doing so … If equity will not allow Dandeson Owhonda Nsiegbe in the circumstances afterwards to assert his title to the land, it will not allow the plaintiffs, who claim to be his sons or children, to do so.
For the above reasons this action is dismissed.”
From the above, it is abundantly clear that the learned trial Judge relied on the acquiescence of the plaintiffs, according to his findings, to dismiss their case.
In upholding the decision of the trial court, the Court of Appeal per Edozie, JCA (as he then was) held that although the respondents did not specifically plead estoppel or acquiescence, as they should normally do, in the circumstances of this case, what was pleaded in paragraphs 11, 12, 17 and 21 of the amended statement of defence indicated that they were relying on that equitable defence. The Court of Appeal relied on the decision of this court in Obi Ezewani v. Obi Onwordi & Ors. (1986) 6 SC 402 at 456; (1986) 4 NWLR (Pt. 33) 27 where it was held that it was not necessary to specifically plead estoppel as a defence, if other matters constituting estoppel are stated in such manner as to show that the party pleading relies upon them as a defence. The Court of Appeal in relying upon this decision referred to paragraphs 11, 12, 17 and 21 of the amended statement of defence of the respondents which read:-
“11. The defendant avers that the second plaintiff was signatory to the said sale by Dandeson O. Nsiegbe.
- The said Richard Ahumibe remained in open and uninterrupted possession of the land so purchased exercising diverse acts of ownership thereon until sometime in August 1956 when the said Richard Ahumide sold one portion of this land (measuring 100ft by 50ft) now No. 43 Ikwerre Street, Diobu, to the defendant and the remaining portion to Mr. B. Asinugo.
- In March 1958, the defendant applied with a building plan to Ikwerre District Council for approval to erect the building now standing on Plot No. 43 Ikwerre Street, Diobu. The said building plan was signed by both Dandeson O. Nsiegbe and Richard Ahumibe as successive vendors on the one hand and W. N. Mgbemene as purchaser on the other hand of the property before the approval was given. (Approved plan and receipt will be founded at the hearing of this suit)
- As the defendant was not prepared to sell the property, second plaintiff refused to give up possession.
Where upon the defendant says that the plaintiffs are not entitled to the relief’s and claims sought for in their statement of claim and will rely on all legal and equitable defences at the trial.”
Learned counsel for the appellants submitted in his brief that the contents of the above paragraphs cannot by any stretch of imagination amount to pleading the defence of acquiescence specifically and with any Particularity as required by law. I have carefully examined the said paragraphs of the amended statement of defence and I also cannot see in all of them anything constituting a plea of acquiescence or estoppel raised by the respondents. They were only stating how the land in dispute was bought or purchased, from whom and when and also how the building plan was approved. There was nothing in any of the paragraphs to even indicate abandonment or waiver of the right by the appellants during the period in question. The appellants have therefore done nothing expressly or impliedly to give the respondents any impression that they are abandoning their rights to the land in dispute. In fact the first part of paragraph 21, was to the contrary when it stated that the second plaintiff refused to give up possession. It is my view therefore that the decision in Obi Ezewani’s case (supra) does not apply here, and I so hold.
The second point argued by the appellants counsel in this issue is that the learned trial Judge raised this issue of acquiescence suo moto and did not give the appellants the opportunity to address the court on it before the decision was given. There is no doubt that the decision of the trial court was based on acquiescence of the appellants. And having found that acquiescence was not specifically pleaded and no facts pleaded upon which it could be inferred, the decision of the trial court to raise and rely on acquiescence suo moto cannot be justified. It is also trite law and well settled that where a court raises a new matter suo moto not canvassed by the parties before it, the court must give the parties the chance to address it on the matter, as failure to do so will constitute injustice and amount to miscarriage of justice to the parties if the court acts upon it. See Umar v. Bayero University (1988) 4 NWLR (Pt. 86) 85 at 93; Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524; Road Transport Employers Association of Nigeria v. National Union of Road Transport Workers (1992) 2 NWLR (Pt. 224) 381; Oje v. Babalola(1991) 4 NWLR (Pt. 185) 267. The Court of Appeal properly directed its mind on the question of a court raising an issue suo moto when it held:-
“The position of the law is that when a court decides to deal with an issue which is not raised by any of the parties before it, it is mandatory for the court before deciding the issue to give the parties the opportunity to address it on the issue. This is to ensure fairness to both parties as well as avoid an element of surprise. Katto v. CBN (1991) 9 NWLR (Pt. 214) 126 at 150.”
But after referring to the address of the respondent’s counsel at the trial on page 68 of the record, the Court of Appeal held that the trial court did not raise the issue of acquiescence suo moto. I have read the address of learned respondent’s counsel at the end of the trial on page 68 of the record of appeal, and I am of the view, that even if that amounted to raising the issue of acquiescence, it was not pleaded specifically with any particularity and when the court accepted it, it should have called upon the appellant to address on it too. It did not and it acted fully and completely upon it in its judgment. The Court of Appeal was therefore wrong, in my view, for failure to consider the way in which the trial court decided the issue of acquiescence even if it was first raised by respondents in an address. In any case, the evidence of acquiescence must and can only validly be given in support of pleadings and since acquiescence was not pleaded, that evidence cannot be construed to support the plea of acquiescence and should be ignored.
On the other hand, the appellant did not sleep on his rights nor give the impression that he has abandoned his claim. This was explained by his pleadings and evidence at the trial. The following paragraphs of the statement of claim are relevant:-
“15. Dandeson Owhonda Nsiegbe exercised maximum acts of ownership, possession, control and use of the land from the time it was given to him without let or hindrance from any quarters until he suddenly saw some labourers clearing the land. Dandeson drove the labourers away.
- Later the defendant who was then a policeman came to the spot and arrested Dandeson and took him away to the Police Station, Diobu. It was about midnight before Dandeson was released on bail.
- Thereafter the defendant pressed on with the work on the land, in the teeth of the protests of Dandeson Owhonda Nsiegbe and completed the building No. 43 Ikwerre Street, Diobu.
- Owhonda Nsiegbe did not at any time sell, mortgage or lease the land to the defendant or anybody. Neither did the Nsiegbe family sell, mortgage or lease the land to the defendant or any person. The plaintiffs have also not sold or leased the land to any person.
- During the Nigerian crisis the occupants of the building left and the house became abandoned property by operation of law.
- After the liberation of Port Harcourt, Dandeson Owhonda Nsiegbe ordered the 2nd plaintiff to occupy the house. The 2nd plaintiff has since been living there with his family.”
At the trial, 3 witnesses gave evidence for the appellants as plaintiffs and their evidence confirm that Dandeson Owhonda Nsiegbe was the original owner of the land in dispute and efforts to enter and clear the land was strongly challenged by D. O. Nsiegbe. There was also unchallenged evidence that the respondent being a policeman arrested D. O. Nsiegbe and locked him up, and he went on building on the land until he completed it. However during the Nigerian Civil War, the respondent left Port Harcourt not being an indigene and O. O. Nsiegbe asked the 2nd appellant, his son, to occupy the building which he did up-till the case started and now.
It is therefore very clear from above that the appellants have been protesting on the challenge to their rights on the land in dispute. The question of acquiescence on the part of the appellants or their family does not therefore arise in the circumstances, and the finding on acquiescence by the trial court as confirmed by the Court of Appeal, cannot stand. I accordingly so hold and resolve issue 1 in favour of the appellants. I now deal with issues 2 and 3 together.
Issue 2 deals with whether the respondents were in possession of the land in dispute and issue 3 deals with whether the respondents are the owners of the land in dispute.
In respect of these issues, let me now look closely at the facts of the case as disclosed in the evidence on the record. The land in dispute is situated in Rumuwoyi village area and is called “Otumoye” meaning “farm land”.
The evidence of the plaintiffs/appellants was to the effect that they originally owned the land in dispute and the defendant/ respondent owned the building on it. D.W1, Richard Durun Ahumibe, testified that in 1956, he bought a piece of land from Dandeson Nsiegbe, the father of the appellant measuring 214 ft. long and 140 ft. wide for ‘a3120 (one hundred and twenty pounds). He further said that when he bought the land from Dandeson Nsiegbe, the latter gave him a receipt which was also thumb ’97 printed by the 2nd plaintiff/ appellant. It was admitted in evidence without objection as exhibit “J”. He further added that he sold part of the said land to the defendant/respondent for ‘a3180, and issued him a receipt exhibit “B” admitted in evidence without objection.
The defendant/respondent testified that he bought the land in dispute from DW.1 and exhibit ‘B’ was given to him as the receipt for the purchase. He then cleared the land and put up the building on it after obtaining approval of his building plan. The plan was signed by DW.1, Dandeson Nsiegbe and himself. It was admitted in evidence as exhibit ‘E’. The defendant/respondent then built a house on the land. He said in his evidence:-
“I was living in the house until the outbreak of the Nigerian Civil War. I left the house when the Nigerian troops came into Port Harcourt. After the cessation of the civil war the Abandoned Property Authority released the house to me and gave me a document transferring it to me.”
The transfer document was admitted in evidence as exhibit “F”. He further explained that the house was transferred to him by the Abandoned Property Authority in 1973.
The appellants on the other hand confirmed in their testimony that the building on the land was built by the defendant/respondent and although they protested against it at the beginning, they later gave it up. The defendant/respondent then occupied the building until the outbreak of the Nigerian Civil War. The appellants however denied the sale of the land in dispute to the defendant by their father Dandeson Nsiegbe.
Exhibits ‘B’ and ‘J’ are the purchase receipts respectively of the land in dispute and the larger parcel of land out of which the land in dispute was curved. These are the most important documents in this case. There is no doubt that the Nsiegbe family are the Original owners of the land sold to DW.1 per exhibit J. It is also without any doubt, that exhibit ‘B’ was the receipt for the purchase or sale of the land in dispute given to the defendant/respondent by D.W1. They were both admitted in evidence without any challenge and there was no iota of evidence that any of them was forged. At the time of the trial in 1979, both documents were more than 20 years old. By the provision of section 122 of the Evidence Act, they are both presumed to have been executed and attested to by the persons by whom they purport to have been executed or attested. This presumption is not changed or affected by the general denial of the appellants that they did not sell or alienate the land in dispute or did not execute any of the said documents in the absence of specific proof and there was none.
Therefore by exhibit “J” D.W1 has acquired legal interest in the original parcel of land sold to him by Dandeson Nsiegbe and the defendant/respondent had acquired legal interest in the piece of land sold to him by D. W.1 by virtue of exhibit ‘B’. See Idundun v. Okumagba (1976) 9 – 10 Sc. 227; Piaro v.Tenalo (1976) 12 SC 31 at page 37; Johnson v. Lawanson (1971) 1 All NLR 56 at page 62 – 63; Ayinla v. Sijuwola (1984) 1 SCNLR H 410 at page 419.
There is uncontradicted evidence that after the respondent completed the building on the land in dispute, he occupied it until the commencement of the Nigerian Civil War when he left PortHarcourt and only returned in 1973. It was only during his absence that the 2nd appellant, occupied the same building. During this civil war period, the building was an abandoned property within the meaning of the Rivers State Abandoned Property Law (Edict No.8 of 1969). When the respondent returned to Port Harcourt in 1973, after the civil war, the property was returned to him by an instrument of transfer – exhibit F. His effort to claim back the house from the 2nd appellant gave rise to the instant case. It is abundantly clear from the above that the respondent was in possession of the property and the land in dispute from the time he acquired it by purchase up-till the time he left Port Harcourt on the outbreak of the civil war in Nigeria. His departure from Port Harcourt was not voluntary at all and when on his return in 1973, he was granted exhibit F giving back his property, his possession is confirmed and it continued, so that even during his absence from Port Harcourt during the civil war, he was deemed to be in constructive possession of the land or property in dispute. Also possession may be inseparable from ownership in case of an innocent possessor who did not acquire the property by any fraudulent act.
See Oluwi v. Eniola (1967) NMLR 339 at 340; Udo v. Obot (1989) 1 NWLR (Pt. 95) 59; Wookey v. Pole & Ors. 106 E.R. 839 at 841;(1814 – 1823) All E.R. 553. The respondent acquired the land and property in dispute by purchase and no fraud was involved and all the documents were not forged. I therefore find that he was the owner and in lawful possession of the land in dispute and resolve issues 2 and 3 in his favour. For the reasons given above, I find no merit in this appeal. I dismiss it and affirm the decision of the Court of Appeal delivered on 28th June, 1995. I award N10,000.00 costs to the respondents against the appellants.
SC.119/2000
