Aniemeka Emegokwue Vs James Okadigbo (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In this case, the plaintiff, now respondent, claimed against the defendant, now appellant, in the Onitsha High Court recovery of possession of a piece of land in Ogbeabu in “Onitsha Inland Town.” He also claimed the sum of 100 pounds as damages for trespass and asked for an injunction to restrain the defendant, his servants or agents from continuing to build a concrete building which he had started on the said land.

In his statement of claim the plaintiff averred that both parties, who are members of the Umudei family of Ogbeabu, are also descendants of a common ancestor named Dei. With respect to the land in dispute he averred in paragraph 3 of his statement of claim as follows:

“3. The plaintiff was given a piece or parcel of land in Ogbeabu, Onitsha Inland Town by the said Umudei family of Ogbeabu and has been in possession of the said piece or parcel of land for many years. The said piece or parcel of land is more particularly delineated on a plan No. PO. 47-63 and verged pink. This plan is filed with this statement of claim.”

In reply to paragraph 3 above, the defendant averred in paragraph 2 of his statement of defence as follows:

“2. In answer to paragraph 3 of the statement of claim, the defendant denies that his parcel of land was ever given to the plaintiff and that he has ever been in possession of it.”

In his evidence in support of his claim, the plaintiff, however, testified as follows:

“I am a member of the Umudei family of Ogbeabu. I know the defendant. We belong to the same family. I know the land in dispute. The land belongs to me. The elders of the village gave me the land in 1949 to build my house on it. I gave the elders two bottles of gin and two pots of palm wine before they allotted the land to me after taking the drinks. The land is originally owned by the whole of Ogbeabu Village. There are three families in Ogbeabu, namely Daike family, Osodi family and Ozomaocha family. The land was measured out for me. It is 100 feet by 50 feet.”

To questions asked about the land under cross-examination, the plaintiff replied;

“The land in dispute originally belongs to the whole of Ogbeabu. It was not only the Umudei family alone that gave me the land but the whole of Ogbeabu.”

Isaac Chinwuba Nwosisi (3rd P.W.) who gave evidence in support of the plaintiff’s claim testified as follows:

“I know the parties and the land in dispute. It belongs to the plaintiff. He got it from our family Ogbeabu. I was present when the land was given to him in 1949.”

When cross-examined about the grant, he confirmed his earlier testimony as follows:

“It was the whole of Ogbeabu that gave the land to the plaintiff. In Ogbeabu we have Daike, Ozomaocha, Umuchimokwu and Osodi. Ogbeabu are not Umudei. Ogbeabu and Umudei are called Okebunabu.”

One John Abadom (1st D/W), the only witness called by the defence, denied the plaintiff’s claim. He was then 73 years old and said he came from the same family as that of the parties to the dispute. He said the land in dispute is within the area of Osodi in Ogbeabu. He testified further under cross-examination as follows:

“The whole land of Ogbeabu is communal. The people of Chimukwu live on one side and the people of Onira live on the other side. The people of Onira live round the land in dispute. In Onira’s sub-family we have Ozomaocha, Daike and Osodi. Plaintiff belongs to Daike, and defendant to Osodi.”

The learned trial judge after reviewing the evidence gave judgment for the plaintiff.

In the appeal before us against that decision, Mr Mbanefo, who appeared for the defendant, made a number of submissions, the most important of which is that the case now put up by the plaintiff/respondent is completely different from the averment in his pleadings. Learned counsel further submitted that since it is clear both from his pleadings and the evidence adduced in support, that the plaintiff/appellant had based his claim on a grant, if the evidence of the grant differs materially from the averment in his pleadings, the claim must fail. Learned counsel then referred us, first to paragraph three of the statement of claim in which the plaintiff/appellant averred that the land was given to him by Umudei family of Ogbeabu, then to his evidence in which he admitted that the land in dispute belongs to the whole of Ogbeabu (of which Umudei is only a branch), and lastly to that of Nwosisi (3rd) who stated in clear terms that “it was the whole of Ogbeabu that gave the land to the plaintiff. ” Learned counsel finally submitted that since this evidence as to who granted the land in dispute to the plaintiff is a complete departure from the relevant averment in his pleadings, the claim should have been dismissed.

Mr. Anyaegbunam who appeared for the defendant conceded that there was a misdescription of the grantors.

It is trite law, and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. The reason for this rigid rule of pleadings and of evidence has been clearly stated by this court in George and Ors. v. Dominion Flour Mills Ltd. [1963] 1 All N.L.R. 71 at p. 77 as follows:

“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues: but the cardinal point is the avoidance of surprise.”

In National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. & Ors. (1969) N.M.L.R. 99 at page 104, we again observed as follows:

“A plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it. It is, of course, the duty of counsel to object to inadmissible evidence and the duty of the trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”

Other views along the same lines were expressed in Idahosa v. Oronsaye (1959) 4 F.S.C. 166 at p. 171; Bada v. The Chairman L.E.D.B., SC. 501/65 of 23rd June, 1967; Erinle v. Adelaja, SC. 332/1966 of 6th June, 1969; and Chief Sule Limbo & Ors. v. Aminu Sanni & Ors. SC. 373/67 of 13th March, 1970. Another recent case on the point is Ferdinand George v. The United Bank for Africa Ltd., SC. 209/1971 of 29th September, 1972 reported in (1972) 8/9 SC. 264 at page 275 in which we referred with approval to our decision in Ogboda v. Adulugba SC. 31/70 of 12th February, 1971, where we emphasised the same point as follows-:

“We have pointed out numbers of time that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given (see Chief Sule limbo & Ors v. Aminu Asani & Ors. SC. 373/67 dated the 13th March, 1970). Even when such evidence had been wrongly allowed, the trial court should disregard it as irrelevant to the issues properly raised by the pleadings.”

In the case in hand, the plaintiff/respondent averred in his pleadings that the land in dispute was granted to him by the Umudei family of Ogbeabu. In his evidence on oath, however, he admitted that:

“It was not only the Umudei family alone that gave me the land but the whole of Ogbeabu.”The importance of this testimony will be appreciated if considered with that of Nwosisi (3rd P/W) who confirmed the grant from the Ogbeabu family and also explained under cross-examination that “Ogbeabu are not Umudei. Ogbeabu and Umudei are called Okebunabu.”

The evidence of both the plaintiff/respondent and the 3rd P/W is clearly at variance with the averment in the plaintiff/respondent’s pleadings that the land was given to him by the Umudei family. Since the grant to him by those entitled to make it formed the basis of his case, and having failed to prove a grant from the Umudei family, the plaintiff/respondent’s claim failed and should have been dismissed.

There is, therefore, merit in the complaint of the learned counsel for the defendant/appellant that the learned trial judge was in error in giving judgment for the plaintiff/respondent. The appeal succeeds and it is allowed.

The judgment of the learned trial judge delivered in the Onitsha High Court in suit No. 6/60/63 on 7th June, 1965 including the order as to costs, is accordingly set aside. We order that the plaintiffs claim be and is hereby dismissed, and this shall be the judgment of the court. Costs to the defendant/appellant are assessed in the High Court at 120 naira and in this Court at 159 naira.

Appeal allowed; plaintiff’s claim dismissed.

Other Citation: (1973) LCN/1739(SC)