Antonia E. Umoffia Vs M.c. Ndem (1973)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, JSC 

This is an appeal from the judgment of the High Court of South Eastern State holden at Calabar. In Suit No. C/49/1969 the plaintiff, herein respondent, claimed against the defendant also, herein appellant, “recovery of possession of a piece of land at No. 35 Webber Street, Calabar.”

Throughout this judgment, the terms “plaintiff’ and “defendant” respectively will be retained wherever applicable. Pleadings were ordered and duly filed and delivered. As our decision in this appeal must, of necessity, turn on the pleadings in relation to the evidence led and considered by the learned trial Judge, we consider it necessary to set out in some detail certain parts of the pleadings which were filed and relied upon by both the plaintiff and the defendant.

For this purpose we consider only paragraphs 1, 2, 3, 5 and 7 of the statement of claim and paragraphs 3, 4, 5 and 9 of the statement of defence relevant and sufficient. In paragraphs 1, 2, 3, 5 and 7, the plaintiff averred as follows:- “1. Once there lived two sisters Madam Efiom Ene (alias Nkoyo Ene) and Ukpong Ene. In 1931 they jointly obtained a plot of land on a lease from the Efut Combined Council. The plot of land is known as 35, Webber Street, Calabar. The lease was in 1946 converted into a freehold property upon payment of a lump sum of money and customary drinks to the then Muri of Efut, Chief Asuquo Nyong Odionka.

2. The land is reproduced by the colour pink on plan No. EPS/732 (LD) dated 10th January, 1970 prepared by Mr. Okon E. Eyo, licensed Surveyor. 3. The sisters jointly built a house on the land and lived there with their children until they died. Madam Efiom Ene died in 1963 and Madam Ekpong Ene in 1968. The plaintiff and L.O. Ibok are children of Madam Ukpong Ene. 5. In 1962 the plaintiff had submitted to the Calabar Urban District Council the plan of a concrete building he proposed to erect on the land, and the plan was approved. 7. Meanwhile, the time allowed by the Calabar Urban District Council for the putting up of the concrete building on the approved plan had run out; and the plaintiff had to apply in September, 1969 for an extension of time which was duly granted.”

In answer to these averments the defendant pleaded in paragraphs 3, 4, 5, and 9 of her statement of defence in the following terms:- “3. It is denied that the two women mentioned in paragraph 2 above ever obtained a lease of the plot of land now known as 35, Webber Street, Calabar from the Efut combined Council jointly or singly in 1931 or at all.

It is further denied that they converted any such lease into a freehold in 1946 or at all. 4. Paragraph 2 of the statement of claim is admitted. It is added however that defendant’s beacon stones numbers are omitted from the said plan. Counting from the North West, the beacon stones are SEB 142, North East SEB 143, South East SEB 144 and South West SEB 145.  5. In answer to paragraph 3 of the statement of claim, defendant first went into possession of the land in dispute in 1968. There was no building on the land in dispute which was a vacant plot. By a deed dated 20th day of October, 1969, the defendant was granted the land in dispute rent free after making the customary gifts. Defendant is a descendant of the Efut families and was such granted the land in dispute by the Efut combined Council. Muri Edet Edem, the present head of Efut and Chairman of the Efut combined Council signed the deed.

The said deed is registered as No. 10 at page 10 in Volume 1 of the land registry at Calabar. 9. Paragraph 6 of the statement of claim is denied. Plaintiff has never been in possession of the land in dispute and on the 20th October, 1969 was not in possession of the land in dispute and was not entitled to be in such possession. When defendant took possession of the land in dispute, it was vacant.” The case duly came up for hearing. It was tried by Bassey, J., (as he then was).

In the course of her testimony, the plaintiff produced and sought to tender in evidence a document purported to be a deed of grant which she described as “agreement concerning the land in dispute” which was handed over to her by her mother. The consideration for the grant of the land in dispute, according to her and as reflected in the document, was the sum of £5.

There was an objection in point of law by the learned counsel for the defendant on the ground that the document being an “instrument” was inadmissible in evidence for non-compliance with Section 15 of the Land Instruments Registration Law Cap. 72 of the Laws of the former Eastern Nigeria, Volume 4, 1963, as applicable to the South Eastern State. In his ruling, the learned trial Judge apparently upheld the objection, but nevertheless admitted the instrument, according to him, “not to show that title has passed but as a receipt for money paid.” It was marked Exhibit 3 in the proceedings.

Thereafter the trial continued and the plaintiff and her witnesses gave oral evidence of the grant of the land in dispute to her predecessors in title and as to how the defendant later took possession of the said land; hence her claim to recover possession thereof. Evidence was also heard from the defendant and her witnesses. The learned trial Judge, after a review of the whole of the evidence, including the instrument (Exhibit 3) which he apparently described as an amorphous document, and the oral testimony concerning the grant of the land in dispute to the predecessors in title of the plaintiff held: (1) that the plaintiff’s predecessors in title had been in long possession of the land aforesaid before vacating it; and (2) that the custom of the Efut, which he found established that when a grantee of land according to native custom vacates it, the land must revert to the grantor, was repugnant to the principles of equity and good conscience. He therefore overruled the custom.

Thereupon he entered judgment for the plaintiff in terms of her claim and ordered that she should recover possession of the land in dispute. The defendant has now appealed to this court against that judgment on a number of grounds. The ground argued before us and which we consider of substance and worthy of serious consideration which, if sustained, may dispose of the appeal, may be stated as follows:- “That the learned trial Judge was wrong in law to have entered judgment for the plaintiff for possession of the land in dispute in the absence of proof of any grant of the land in dispute either to herself or to her predecessors in title either as a leasehold or freehold in terms of the averments contained in paragraph 1 of her statement of claim.

In his submissions on this ground, Mr. Davies, learned counsel for the defendant, contended that the whole basis of the plaintiff’s claim to be entitled to the possession of the land in dispute was that in 1931, a lease of the said land was granted to her predecessors in title; that in 1946, the leasehold property was converted to freehold property upon the payment, by her predecessors in title, of a lump sum of money; that at the trial a document (Exhibit 3) was produced, purported to be an instrument which had conveyed to the plaintiff’s predecessors in title the freehold estate in the land; and that the document, according to the learned trial Judge, was inadmissible in evidence for that purpose on the ground of law but merely as evidence of the receipt for the sum of £5.

That being so, learned counsel submitted that the whole basis of the plaintiff’s claim had been destroyed, oral testimony not being admissible to establish a freehold grant, and therefore the claim of the plaintiff ought to have been dismissed. We think these submissions are well founded. They are sound. They are virtually unanswerable. That much was conceded by Mr. Adesanya, learned counsel for the plaintiff. We have repeatedly and consistently stated that cases in the High Court, which are fought on pleadings, must be conducted in accordance with the averments contained in such pleadings.

We have also consistently held that any evidence led in the course of any trial as to any fact not pleaded goes to no issue and must be ignored. If such evidence is wrongly admitted in the proceedings in the High Court, this court will always ignore such evidence, and, as it were, cause it to be expunged from the record. Parties to a suit must be held to their pleadings.

The reasons for this rigid rule as to pleadings and evidence to be considered in the course of a trial were clearly stated by this court in George and Ors. v. Dominion Flour Mills Limited (1965) 1 All NLR 71 at page 77 in the following words:- “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 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.”

The principles stated above were re-emphasised by this court in the recent case of Aniemeka Emegokwu v. James Okadigbo (1973) 4 SC. 113. Now, there is no doubt whatsoever that according to the averments in paragraph 1 of the statement of claim, the plaintiff had based her claim on a leasehold granted to her predecessors in title in 1931. In 1946, the leasehold “was converted into a freehold property upon the payment of a lump sum of money and customary drinks to the then Muri of Efut, Chief Asuquo Nyong Odionka.” It was on the footing of the grant that she claimed to be entitled to the possession of the land, the subject-matter of the action. The grant she relied upon was a grant from the Efut Combined Council. No member of the Council gave evidence in support of her claim.

To succeed in her claim, it was absolutely essential that she should produce and tender in evidence her instrument of title, namely, a freehold conveyance. This she was unable to do. Instead, in an attempt to establish her title to the land in question, she produced and tendered a document which the learned trial Judge described as amorphous. This document (Exhibit 2) is in law not admissible in evidence for the purpose of establishing her title to the property concerned as it is caught by Section 15 of the Land Instruments Registration Law, the relevant provisions whereof are as follows:- “15. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered.”

There is a proviso to the section which does not concern us. Then in Section 2 of the Law, “Instrument” is defined as meaning: “a document affecting land in Eastern Nigeria, whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in Eastern Nigeria, and a certificate of purchase and a power of attorney under which any instrument may be executed, but not a will.” It is clear that under Section 15 of the Land Instruments Registration Law, the amorphous document produced by the plaintiff is neither pleadable nor can it be given in evidence for the purpose of establishing any right, title or interest in land since the same was not registered.

And as oral evidence is also inadmissible for the purpose of establishing a freehold estate, as a substitute for a written conveyance, inevitably the plaintiff was bound to fail in her claim for possession. To be entitled to possession, she must establish her title or other interest entitling her to such possession.

What is even worse, is that there was no alternative claim either in her writ of summons or her statement of claim that the grant was made to her predecessors in title under native law and custom. In any case, a freehold estate is a concept known to English law. In the circumstances, we have no doubt in reaching the conclusion that the learned trial Judge was wrong in law to have entered judgment for the plaintiff. She had failed to establish her title to the land in dispute and her claim ought to have been dismissed.

The appeal therefore succeeds. It is allowed. The plaintiff’s claim as contained in the Calabar High Court suit No. C/49/1969 is accordingly dismissed with costs in the High Court to the defendant fixed at N100.00. And this shall be the judgment of the court. The defendant is also entitled to costs of this appeal assessed and fixed at N109.00.

Other Citation: (1973) LCN/1657(SC)