Chief Elias Oyeoka Offodile V. Ozo Anthony Nweke Offodile & Ors (2009)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This is an appeal against the judgment of Anyachebelu J. of the High Court of Justice Anambra State of Nigeria in the Awka judicial division in Suit No. A/221/02 delivered on the 8th May, 2007. The Appellant as Plaintiff had claimed against the Respondents as Defendants jointly and severally in the court below as follows –
(a) A Declaration that the purported sale by the 1st – 5th Defendants of chief Ozo Offodile’s family land situate at Agbana – Ofvia as shown in the annexed survey plan No SSC/AN – D06/2004 to the 6th Defendant without the consent or authority of the Plaintiff is null and void and of no effect.
(b) N100,000.00 (One Hundred Thousand Naira) general damages for trespass.
(c) An order of injunction restraining the Defendants jointly and severally and their servants, agents and privies from entering into and or remaining on the said land without the consent of the Plaintiff.
(d) Or in the alternative an order of partition of the family lands of chief Ozo Offodile’s family of Umuayom village, Awka amongst the separate branches of the family duly entitled to share in the partition in accordance with the Awka native law and custom taking into account all pieces and parcels of the said land already sold by or through the 1st – 5th Defendants and charging same on Defendants’ branches of the family.
Pleadings were duly filed and exchanged and the case proceeded to be heard and addresses of counsel taken. In its judgment, the trial court while holding that the Appellant is the head of Chief Ozo Offodile family in accordance with native law and custom nevertheless dismissed the Appellant’s case holding that the Appellant failed to establish the actual extent of the land in dispute. The trial court also held that the Appellant failed to prove the identities of the unpartitioned lands.
It is against this judgment that the Appellant filed a Notice of Appeal dated the 30th July, 2007 and filed on the 31st July, 2007. The said Notice of Appeal is contained at pages 193 – 202 of the Record of Appeal. Consisting of eight Grounds, the Notice of Appeal highlights only those parts of the judgment which state that the Appellant as Plaintiff failed to establish the actual extent of the land in dispute and that the Plaintiff failed to prove the identities of the unpartitioned lands either by pleading or evidence. Appellant through his counsel Chief Okwuchukwu Ugolo SAN filed a Brief of Argument dated the 19th November, 2007 and filed same day. Distilled from the eight Grounds of Appeal contained in the Notice of Appeal are the following four issues for determination in this appeal-
(i) Whether the Learned Trial Judge was right in law when he held that the Plaintiff failed to establish the actual extent of the land in dispute
(ii) Whether the Learned Trial Judge was right in law when he held that the parties joined issues in the pleadings and the survey plans on the identity of the land in dispute.
(iii) Whether the Learned Trial Judge was right in law when he failed to make a declaration that the purported sale of the family land in dispute by the 1st – 5th Defendants to the 6th Defendant without the consent or authority of the Plaintiff is null and void and of no effect after holding that the Plaintiff is the head of the family.
(iv) Whether the Learned Trial Judge was right in law when he refused to grant the alternative prayer for the partition of the family lands of Chief Ozo Offodile among the various branches of the family after he found that the parties did not join issues on the unpartitioned lands of the family. Arguments in respect of each of the issues are contained in the Appellants Brief of Argument which said Brief was on the 11th February, 2009 when this appeal came up for hearing, adopted and relied upon by learned Senior Counsel who urged the court to allow the appeal and set aside those parts of the judgment where the learned trial Judge held that the Appellant as Plaintiff failed to establish the actual extent of the land in dispute and that the Plaintiff did not prove the identity of the unpartitioned lands either as pleadings or evidence. The Respondents’ Brief of Argument is dated the 11th January, 2008 and filed on the 16th January, 2008 but deemed filed on the 26th May, 2008 following the grant by the High Court of a Motion on Notice brought pursuant to order 7 Rule 1 and Rule 10(1) of the Court of Appeal Rules 2007 and the inherent jurisdiction of that Court for an order-
(a) Extending time to file Respondents’ Brief of Argument
(b) To deem the Respondents Brief of Argument attached to the affidavit as Exhibit A as duly filed and served the applicant having paid the necessary fees.
At page 2 of the said Brief, the Respondent has formulated the following as issues that call for determination by the Court of Appeal –
- Whether the learned trial Judge was right in dismissing the case when the Plaintiff failed to prove with certainty the boundaries of the land in dispute.
- Whether the learned trial Judge was right when he failed to make an order of partition when the Plaintiff failed to indicate such lands and parties never joined issues on them.
These issues have been argued in the brief of argument. The said brief was adopted and relied upon on the 11th February, 2009 by A.O. Mogboh (Jnr) counsel for the Respondents who urged this court to dismiss the appeal and in doing so to take cognizance of exhibits A and G in consonance with the evidence given by the Plaintiffs/Appellants at the Trial.
After a careful perusal of the issues, I intend to consider and determine this appeal based on the Brief of Argument of the Appellant with some modifications bearing in mind that the appeal as can be seen from the Notice of Appeal is not against the whole judgment but is only with respect to those parts of the judgment which state that the Plaintiff failed to establish the actual extent of the land in dispute and that the plaintiff did not prove the identities of the unpartitioned lands either by pleading or evidence. The issues that have been considered are as follows –
(i) Whether the learned Trial Judge was right in law when he held that the Plaintiff failed to establish the actual extent of the land in dispute
(ii) Whether the Learned Trial Judge was right in law when he held that the parties joined issues in the pleadings and the survey plans on the identity of the land in dispute
(iii) Whether the learned Trial Judge was right in law when he refused to grant the alternative prayer for the partition of the family lands of Chief Ozo Offodile family among the various branches of the family.
Issue 1 is said to be based on Grounds 1, 2 and 4 of the Grounds of Appeal and are as follows –
Ground 1 – Error in law
The Learned Trial Judge erred in law when he held that: “It is not in dispute that a portion of the land belonging to the Chief Offodile family was purportedly sold to the 1st Defendant ” and later concluded that :-
“I find from the evidence before me together with the pleadings that the Plaintiff failed to establish the actual extent of the land in dispute. At this stage and on this point alone this case ought to be dismissed.” When there was ample evidence in the pleadings and evidence as to the actual extent of the land in dispute and the parties did not join issues on the extent of the land.
Ground 2 – Error in law
The Learned Trial Judge erred in law when he held that-
“From the pleadings and particularly on the survey plans the parties no doubt joined issues on the identity and extent of the size of the land in dispute……… I am satisfied that the land which the Plaintiff alleged to be in dispute vide exhibit A extended to and included various other portions of land which 6th Defendant bought from other families and joined to the one which he alleged bought from Chief Offodile family and which have not been shown to be in dispute.”
Ground 4 – Error in law
The Learned Trial Judge erred in law when he held as follows –
“There is no doubt that the Plaintiff by Exhibit A showed what they said was in dispute. But from the evidence before this court it is shown that the same could not be said to be the extent of the land in dispute.”
When parties admitted the identity of the land in dispute and Plaintiff ex-abundante cautela still gave evidence of the extent of the land in dispute.
Issue 2 is as to whether the Learned Trial Judge was right in law when he held that the parties joined issues in the pleadings and the survey plans on the identity of the land in dispute. This issue is said to be based on Grounds 3 and 5 of the Grounds of Appeal which are as follows-
GROUND 3 – The Learned Trial Judge erred in law when he held that the parties joined issues in the pleadings and the survey plans on the identity of the land in dispute.
GROUND 5 – The Learned Trial Judge erred in law when he held that the parties joined issues on the pleadings particularly the survey plans based on the following question and answer given by the DW 5 in cross examination:-
“Q – Your son the 6th Defendant erected fence wall round the entire land in dispute
Ans – Yes. He fenced it after buying it – Different portions from Mr. Ekpe, Orogbu and Nkwodu family together with the one the Offodile family sold to him. He fenced it together.
I find by reading through the Briefs of Argument that arguments on issues 1 and 2 which have to do with extent and identity of the land in dispute have tended to overlap and I think it is appropriate for me to deal with them together.
The Appellant has submitted that as no issue was joined on the identity of the land in dispute on the pleadings no proof of the same is required. Reference was made to section 75 of the Evidence Act and the case of ADEKUNLE V. ROCKVIEW HOTEL LTD. (2004) 1 NWLR (PART 853) 161 at pages 179 – 180 paragraph D – B. Appellant went further to state that to show that the identity of the land was not in dispute the 2nd Defendant who testified as DW5 gave evidence which tallied with that of PW 2 on the identity of the land in dispute which is at Agbana Ofvia and which by paragraph 26 of the Amended Statement of Defence is a track of land including the land in dispute.” The above, Appellant contends shows that the identity of the land in dispute was not an issue and the parties did not join issues on the dispute on the pleadings. The Law, Appellant submitted (sic) is that the Plaintiff must first and foremost plead and prove clearly the area of land to which his claim relates and the boundaries thereof and if the location and size of the land is in issue, the plaintiff must prove the exact location and the area being claimed. Reference was made to the case of DADA V. DOSUNMU (2006) 18 NWLR (PART 1010) 134 at 159 paragraph A. Appellant went further to state that the Plaintiff’s surveyor PW 7 had shown the land in dispute verged pink in Exhibit A and that PW 7 did not admit the inclusion of other lands not belonging to Chief Offodile family and the lower court was wrong to have held otherwise. The Law, Appellant went further to submit is that a Plaintiff who claims declaration of title to land from a court should show clearly the area of land to which his claim relates and this duty can be discharged by the Plaintiff by describing the land with such particularity that a surveyor can from his description produce an accurate plan of the land showing precise boundaries. The following authorities were referred to OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PART 95) 26 at 42 paragraphs B – C; KWADZO V. ADJEI (1944) 10 WACA 274; AWOYODU V. ARO (2006) 4 NWLR (PART 971) 481 AT 498 – 499; OGEDENGBE V. BALOGUN (2007) 9 NWLR (PART 1039) 380 AT 393, 404 – 405 and 408. The Appellant submitted that he complied with the above. Appellant went on further to submit that the extract from the judgment where the lower court recorded that DW 5 said that the 6th Defendant fenced the land after buying same from Ekpe, Orogbu and Nkwodu, elicited in cross examination and not having been pleaded went to no issue. Reliance was placed on SALAUDEEN V. MAMMAN (2004) 14 NWLR (Pt.686) 63 at 77; ITA V. EKPENYONG (2001) 1 NWLR (PART 695) 587 at 614. It is the Appellant’s contention that the Trial Judge on his own made a case for the Defence when he held that the Plaintiff does not know the extent of the land in dispute nor the size but knows merely the site of the land and that the court was wrong to have employed its personal knowledge in arriving at this conclusion. He relied on AYOKE V. BELLO (1992) 1 NWLR (PART 218) 380 AT 405. The Appellant has submitted that the lower court’s finding that, “from the pleadings and particularly on the survey plans the parties no doubt joined issues on the identity and extent of the size of the land in dispute” cannot be correct as they were clearly admitted as family land known to both parties. Appellant has referred in his Brief of Argument to the written address of the Respondent’s counsel Chief A.O. Mogboh SAN at page 78 of the Record of Appeal which ran thus, “A cursory look at the Plaintiff’s plan Exhibit A shows the land the Plaintiff is claiming as Chief Ozo Offodile family land which includes land bought by the 6th Defendant from Nkwodu family, from Chief Orogbu and from Ekpe family.
This is confirmed by the Superimposed plan of the Defendants Exhibit H.
All the plans were of the same scale and neither the Plaintiff nor his surveyor disputed that these extra lands from Nkwodu family, Chief Orogbu and from Ekpe family had been included. Therefore we submit that the 1st – 5th Defendants at no time sold these extra lands i.e Orogbu’s land, Nkwodu’s land or Ekpe’s land as they do not belong to Chief Ozo Offodile.” Appellant has submitted in reply that a careful look at Plaintiff’s plan exhibit A does not show that the Chief Ozo Offodile family land which the plaintiff is claiming includes land bought by the 6th Defendant from Nkwodu family, Chief Orogbu and Ekpe families. Exhibit A, the Appellant contends shows the land in dispute verged red (Pink) and there is no part of the land in the red verging that shows the land of any of the said families. They went on to further submit that there is no part of the land verged red in exhibit G the Defendant’s plan that is shown to belong to any of the said three families and that the purchase of land from any of the three families was not pleaded. The Respondents in their Brief of Argument submitted that the argument put forward by the Appellant that the parties never at any time joined issues on the identity of the land in dispute is totally wrong.
Attention of the court was drawn to paragraph 5 of the statement of claim and then to paragraph 5 and 5(a) of the amended statement of defence and the Respondent further submitted that where parties to an action have answered one another’s pleadings in such a manner that there is an affirmation on one side and a denial on the other, the parties are said to have joined issues. Reference was made to the case of J.E. EHIMARE & ANOR V. OKAKA EMHONYON (1985) 1 NWLR (PART 2) 177.
Respondent submitted that issues were joined on the certainty and identity of the land in dispute. Respondent drew the courts attention to the cross examination of the Appellant at page 118 lines 18 – 23 of the Record of Appeal and also page 125 as well as the cross examination of PW 7 Appellants’ Surveyor at page 50 lines 5 – 9 of the Records. He submitted that PW 7 had admitted that he “reflected some other land of Offodile not in dispute” (underlining that of Respondent) and that what PW 7 was expected to do was to survey the land in dispute. PW 7, he said was to identify the land in dispute only and not to show other lands not in dispute.
Respondent went on to say that by exhibit A, Appellant showed more than the land Offodile family sold to the 6th Defendant which is in dispute. Respondent further submitted that Appellant himself had admitted that Exhibit A had no physical features demarcating the boundaries of the land in dispute and that apart from a wall fence which is on exhibit A there are no features on the land in dispute. Respondent further submitted that the Respondents plans were later to be admitted as exhibits G and H respectively and that exhibit H is the plan superimposed on Exhibit A and drawn to the same scale and showed that the lands bought by the 6th Defendant from other families which lands were not in dispute were included as part of the land in dispute in Exhibit A and that the Appellant never recalled PW 7 their Surveyor to dispute the superimposition on exhibit A which is on the same scale as Exhibit H. Respondent went on to submit that Exhibit A was unhelpful as to the identity and location of the land. He leaned on MAKANJUOLA V. BALOGUN (1989) 3 NWLR (PART 108) at 192; OJIBAH V. OJIBAH (1991) 5 NWLR (PART 191) 296; OGEDENGBE V. BALOGUN (2007) 9 NWLR (PART 1039) at 393; OWHONDA V. EKPECHI (2003) 17 NWLR (PART 849) IORDYE V. IHYAMBE (2000) 15 NWLR (Pt.692) 681.
As to whether issues were joined on the identity of the land, this court has been invited to paragraphs 5 of the statement of claim and paragraphs 5 and 5(a) of the amended statement of defence as well as the evidence of PW 1 and PW 7. Paragraph 5 of the statement of claim which is at page 38 of the Record of Appeal reads as follows –
“The land in dispute is situate at Agbana – Ofvia within the jurisdiction of this Honourable Court and is more particularly demarcated and verged Red in the survey plan No. SSC / AN – D 06 / 2004 annexed and filed herewith. The annual value of the said land is N200.00 (Two Hundred Naira). Paragraphs 5 and 5(a) of the Amended statement of defence are at pages 69 and 70 of the Record of Appeal and read as follows-
(5) Except that the land in dispute is situate at Agbana – Ofvia, the defendants deny the rest of paragraph 5 of the statement of claim and aver that the land in dispute is as shown and verged in the survey plan No TG/AN 003 D/2005 annexed herein and filed with this statement of defence.”
5(a) The Plaintiff’s plan has been superimposed on the defendants’ plan as shown and verged in the survey plan No TG/AN 003 D/2005 annexed herein and filed with this Amended Statement of Defence. The defendants shall rely on the aforementioned plan during the trial.” By their pleadings the parties have met each other on some matter of fact even though there may be denials on others, and there is no doubt that they joined issues as to the identity of the land in dispute. Exhibit A was prepared by PW 7 – a survey of the Appellant named Aloysius Ikeora to show the land in dispute.
He said at page 149 of the Record that the Appellant engaged his services to do a survey of a land in dispute for him and that he eventually produced exhibit A.
He said it was the son of the Appellant Barrister Greg Ofordile who showed him the features that he reflected on the survey plan exhibit A. To the question under cross examination whether the area verged pink in Exhibit A was what was shown to him as the land in dispute. PW 7 said yes and went on to say further that he reflected some other lands of Chief Ofodile not in dispute. PW1 had earlier been shown exhibit A and had said under cross examination that there were other people’s land not in dispute on the plan. I think that it is right to say that what is relevant and in contention really is land in dispute belonging to Chief Ofodile’s family and not lands of Chief Ofodile not in dispute or lands of other families. Exhibit A should have shown only land of Chief Ofodile family sold to the 6th defendant which is in dispute but from evidence of PW1 and PW 7, exhibit A shows more than that ie. lands of Chief Offodile’s family not in dispute by the evidence of PW 7 and lands of other families not in dispute by the evidence of PW 1.
Respondents plan exhibit H is drawn on the same scale as exhibit A and shows other lands not in dispute which were also included as part and parcel of the land in dispute in Exhibit A. I think from what has been observed that the learned trial Judge was right when he held as follows “From the pleadings and particularly the survey plans, the parties no doubt joined issues on the identity and extent of the land in dispute….. As I did indicate earlier the Plaintiff by exhibit A showed the land in dispute. But from the totality of the evidence before the court I am satisfied that the land which the plaintiff alleged to be in dispute in Exhibit A extended to and included various other portions of lands which the 6th defendant bought from other families and joined to the one which he allegedly bought from Chief Offodile’s family and which have not been shown to be in dispute.” The purchase of lands by 6th defendant from Ekpe, Orogbu and Nkwodu have not been strenuously denied by the Appellant who is more concerned that this piece of information from DW 5 was elicited during cross examination and not having been pleaded goes to no issue for which SALAUDEEN V MAMMAN (2000) 14 NWLR (PART 686) 63 at 77 and ITA V. EKPENYONG (2001) 1 NWLR (PART 695) 587 were relied upon.
Because of the importance of that piece of evidence, part of it has been highlighted below: DW 5 Christian Iloegbunan Offordile had stated that the 6th Defendant fenced the entire land which included the ones he bought from Ekpe, Orogbu and Nkwodu together with the one Offordile family sold to him. PW1 admitted that there were no physical features demarcating the boundaries in dispute. But was the issue of purchase of lands by the 6th defendant from Ekpe, Orogbu and Nkwuodu not pleaded and so go to no issue? This cannot be correct because the survey plans of the Defendants were pleaded in paragraph 5 of the Amended Statement of Defence and were admitted as Exhibits G and H and exhibit H shows land bought by the 6th defendant from other people and which were included as part of the land in dispute in exhibit A. The learned trial Judge was right to have held that survey plans form part of pleadings and it cannot therefore be said that these matters were not pleaded. The learned trial Judge held and rightly too that parties had joined issues on them. As I earlier observed there is no evidence on record where the contention that the 6th defendant bought lands from other families was challenged by the Appellants as Plaintiff. Appellant has contended that the learned trial Judge on his own made a case for the Respondent when he held that the Plaintiff does not know the extent of the land in dispute nor the size but knows merely the site of the land and that the court was wrong to have employed its personal knowledge in arriving at this conclusion. The learned trial Judge made the following observation at page 182 of the Record of Appeal, “on the 11th November, 2005 the Plaintiff as PW1 stated thus, “I discovered that the 1st to 5th Defendants sold plots of land out of Chief Ozo Offodile’s Estate to the 6th Defendant. It is about 25 plots of 50 ft by 100 ft or 60 ft by 120 ft. They were not sold with my consent.” The learned trial Judge could not have been wrong to ascribe the Appellant’s knowledge of the area of land to guess work. The Appellant by his evidence said twenty five plots of Chief Offodile’s Estate was sold to the 6th Defendant but could not say whether each plot was 50ft X 100ft or 60ft X 120ft.
Appellant has himself submitted in his Brief of Argument citing DADA V. DOSUMU (supra) that Plaintiff must first and foremost plead and prove CLEARLY the AREA OF LAND to which his claim relates and the boundaries thereof and if the location and size is in issue, the Plaintiff must prove the exact location and the AREA being claimed. From his evidence can he be said to have done so. I do not think so. If he did not know the area of land actually involved what information could he have been expected to impart to PW 7 the surveyor to work on?
Issues 1 and 2 are therefore resolved in favour of the Respondents against the Appellant.
The third issue is whether the learned trial Judge was right in law when he refused to grant the alternative prayer for the partition of the lands of Chief Ozo Offodile family among the various branches of the family.
Appellant has submitted that the court below would have granted this alternative prayer after dismissing the case but failed to do so on the ground that an order of partition must like orders of injunction be tied to identifiable areas of land to make its enforcement practicable. I cannot agree more with the learned trial Judge. As rightly pointed out by the Respondent’s the Appellants as plaintiffs did not in their statement of claim give the names or number of lands which he wanted partitioned among the children of Ozo Offodile. I need say no more. This is also resolved in favour of the Respondents against the Appellant. The Appeal fails as lacking in merit and it is hereby accordingly dismissed and the judgment of Anyachebelu J. delivered on the 8th May, 2007 is hereby affirmed.
There shall be N30,000.00 costs in favour of the Respondents against the Appellant.
Other Citations: (2009)LCN/3230(CA)
