Benedict Agwunedu & Ors. V. Christopher Onwumere (1994)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.S.C.
In a representative action, instituted and filed in the High Court of East Central State of Nigeria, (now Imo State) the respondent, in the appeal, claimed against the appellant as follows:
“1. Declaration of title to that piece or parcel of land known as and called ‘Ala EMENAUGHA’ situate at Unuoke Owerre Nkwoji in Nkwerre Division within the Orlu Judicial Division and more particularly shown and delineated on the plan No. E/GA834/76 verged pink and filed with the statement of claim with the annual value of N10.00 (ten naira).
- N2,000.00 (two thousand naira) general damages for trespass into plaintiff’s Ala Emenaugha.
- Perpetual injunction to restrain the defendants servants/agents from further acts of trespass to the said land.”
Pleadings were called, filed and duly exchanged. Mr. Christopher Onwumere gave facts of his claim against the appellants, in his evidence in chief, before the trial High Court. He told the court that he and his ancestors have been owners in possession of the land in dispute from time immemorial. I may pause here to explain that there is no dispute between the parties over the identity of the entire land which is the subject of this litigation. The two survey plans, Exhibit A and B, D which were respectively produced by the respondents and the appellants agree on all essential details. The parties only differ in the names which each party described the land in dispute. The appellant gave the name of the land as “Ala Emenaugha”.
The respondent told the court that the land in dispute is situate in Umuoke Owerre Nkwoji, in Nkwerre/Isu Local Government Area. He called six witnesses to prove his claim. The appellants, who were defendants at the trial High Court, claimed that the land in dispute was founded by Dii their ancestors from whom they derived their name- Umudi meaning the children of Dii. They called the land in dispute “Ohia Ajimiri” meaning bush reserved for Ajimiri juju. The appellants claimed both the ownership of the land and the Ajimiri juju which was worshipped by all the neighbouring people in the area. It is their case that only people of Umudi descendant could become chief priest of the juju. They explained further, that in the olden days fugitive offenders who ran to and surrendered to Ajimiri juju were sacrificed to the juju and thereafter they became “Osu-free servants” of the juju and automatically were freed from punishment. Obinike village, near Eke market, was set aside for the settlement of such juju servants. Hence the occupation of the respondents’ people of Obineke village.
Seven witnesses testified for the defence and, in a well considered judgment, the learned trial judge, Johnson J., found that the respondent had failed to prove his claim and it was accordingly dismissed. On appeal, the Court of Appeal, Enugu Division, allowed the appeal and, in an apparent contradiction, the court of appeal declared that the respondent was entitled to both customary and statutory right of occupancy over the land. Dissatisfied with that decision the defendant filed this appeal and supported it with seven grounds of appeal. Chief Williams, SAN. formulated four issues for the determination of this appeal on behalf of the appellants. Those issues are as follows:
“(i) Whether the court below was correct in holding that ……”
(a) the defendant did not deny the plaintiff’s allegation that the land on which he now resides was one time pledged to one Mbahaotu of the defendants’ people;
(b) the defendant cannot rely on Exhibit in support of transaction of sale.
(ii) Whether the trial court was precluded from accepting the evidence relating to sale of the aforementioned and;
(iii) Whether the conclusions drawn by the court below from the areas within the dispute which are said to be occupied by the plaintiff’s family are reasonable.
(iv) Whether the orders made by the court in favour of the plaintiff can be justified.”
Chief A.O. Mogboh, SAN., gave a brief outline facts of the case of the plaintiff/respondent and pointed out that the appellants, as defendants, made far reaching admissions about the respondents’ long possession of undefined portions of the land in dispute. The learned Senior Advocate submitted that the learned trial judge failed to consider the effect of appellants’ admissions which supported the respondent’s claim to exclusive possession. However, the Court of Appeal found that the appellants admitted that the respondent and his people are in possession of the areas verged violet, pink and blue, in Exhibit B, and that as persons in actual possession of the land in dispute, the respondent’s family are the persons entitled to the customary right of occupancy of the disputed land. The learned Senior Advocate, in the respondent’s brief, submitted that the following issues arise for the determination of this appeal:-
“1. Whether by considering Exhibit ‘C’ as evidence of sale without the consent and concurrence of members of the family, the trial court was not thereby formulating a fresh issue for the parties distinct from their pleadings of pledge.
- Whether Exhibit ‘C’ is admissible in evidence as a document conferring interest in land despite its non-compliance with the Land Instrument Registration law.
- Whether the respondent was not entitled to judgment in view of the admission by the appellants coupled with the concurrent findings of the lower courts on the numerous acts of possession by the respondent. ”
Chief Williams, SAN., reviewed the decision of the Court of Appeal, in his submission in support of the first issue which he formulated, over that the court’s finding that appellants did not deny the respondent’s allegation that the land where the respondent now lives was pledged to late Mbahaotu who was from the appellants family. The Court of Appeal also found that the appellant did not plead that the transaction between Mbahaotu and the respondent was a sale rather than a pledge nor did they plead the effect of the document, Exhibit C.
The learned Senior Advocate referred to paragraphs 12 and 12b of the respondent’s statement of claim and paragraph 15 of the appellant’s statement of defence in which the averment in paragraphs 12 and 12b were denied. Paragraphs 12 and 12b are produced below:
“12. The area verged Yellow in Plan E/GA834/76 shows where Christopher Onwumere (the plaintiff) now lives. This portion of family land was being cultivated by the late Chinaka Obialo of Umuoke Owerre Nkwoji. By Owerre Nkwoji custom a member of a family can pledge a portion of the family land where he works to anybody if the members of the family are unable to provide him the necessary funds required for his needs. The pledgor or his descendants must redeem the land when the family lands have to be shared.
12(b) Some years ago, the late Chinaka Obialo pledged the area verged yellow to one late Mbahaotu of Umuaro Umudi for Nnu Ano (1,600 cowries) to enable him pay a fine, which the Okonko Society of Umuoke Owerre Nkwoji ordered him to pay. The late Mbahaotu was the son of a woman from the plaintiff’s family named Agbaghasu who was married in Umuozu Unuaro, Umudi. The late Mbahaotu was a member of many associations in Umuoke including the Okonke Society. The land was not redeemed before the death of the pledgor and pledgee.’
The reply of the appellants to the averments above was given in paragraph 15 of the statement of Defence and it reads as follows:
“15. In answer to paragraph 12 of the statement of claim which is denied the defendants aver that Mbahaotu now deceased of the defendants’ people who had possessory right over the piece of land verged blue in Defendant’s plan, secretly received the sum of 500pounds from and allowed the plaintiff to built on the land. When plaintiff commenced building thereon the defendants challenged him and he the plaintiff showed to and gave the defendants a receipt which he prepared and which was signed by him and Mbahaotu evidencing his transaction with Mbahaotu about the land and begged the defendants to allow him build and remain thereon their tenants. The defendants thereafter permitted the plaintiff to build and live on the land as their tenant. The said receipt given to the defendants by the plaintiff will be founded upon at the trial. The value of Nnu or (1,600 cowries) as stated by plaintiff is only N8. It is ridiculous that plaintiff will pay N500 for a pledge of the value of N8.”
(emphasis mine)
It is abundantly clear from the above allegation by the respondent in paragraph 12 and 12b that part of the land in dispute, verged yellow, in the respondent’s plan, exhibit A, was pledged to Mbahaotu has been denied in paragraph 15 of the statement of defence. In the lead judgment of the Court of Appeal, per Nnaemeka-Agu, JCA, (as he then was), the learned justice held that the appellants did not plead that the transaction between Mbahaotu and the respondent was a sale rather than a pledge. With respect to the learned Justice of Appeal, it cannot be correct that the transaction pleaded established a pledge rather than sale.
It has been explained, but without mentioning the word “sale”, that the respondent paid Mbahaotu N500 for the land, and further in the same paragraph 15 of the Statement of Defence, the appellants pleaded that the said receipt given to them by the respondent would be founded upon at the trial. The appellants thereafter referred to the value of Nnu Ano (1,600 Cowries) and averred that it would be ridiculous for the respondent to pay N500 for a pledge of the value of N8. By this averment it is plain that the appellants rejected the claim of the respondent that he paid N500 to redeem the land allegedly pleadged to Mbahaotu by one Chinaka Obialo, a relation of the respondent.
Learned Senior Advocate for the respondent submitted that the appellants were bound to particularly plead what the transaction between the respondent and Mbahaotu was and if they wanted the court to find that the transaction was a sale or tenancy agreement instead of a pledge, they should have clearly stated so in their pleading. The rules of pleadings do not allow the appellants to be hedgy or evasive in their reply to facts averred by the respondent. Once the appellants refused to meet the facts directly either by admitting or denying them and joining issues specifically on such denial they are taken to have admitted the respondents plea. He referred to Lewis and Peat (N.R.I.) Ltd v. A.E. Akhimien (1976) 7 S.C. 157.’
The Learned Senior Advocate is correct in stating the procedure in drafting pleadings because in pleadings there is no difference in effect between denying and not admitting an allegation. A traverse may be made either by a denial or non-admission, and either expressly or by necessary implication. But whether a party denies or does not admit he must make it perfectly clear how much he disputes and how much he admits. However where particulars given by a party are insufficient under the Civil Procedure Rules the court, or on the application of either party, may order particulars of any claim, defence or any matter pleaded to be given. The function of particulars is to carry into operation the overriding principle that litigation between the parties, and particularly between the trials should be conducted fairly, openly and without surprises and incidentally to reduce costs. Astrovlalnis Campania Naviera S.A. v. Linard (1972) 2 All E.R. 647.
Now it is pertinent to look into the pleadings in issue, in this case, and see if the respondents was taken by surprise or was not aware of the nature of the defence put up by the appellants. The relevant issue is that the appellants have denied the averment in the statement of claim that the land verged yellow in Exhibit A was pledged to Mbahaotu. In a reply to that allegation, the appellants without specifically mentioning the word “sale” averred that Mbahaotu secretly received N500 from the respondent and permitted him to build on their family land. It became clear from the transaction between Mbahaotu and the respondent that the agreement involve a sale of land and the respondent knew about the deal since he signed the receipt of agreement. There is therefore no element of surprise or concealment of the nature of the appellant’s defence.
Chief Mogboh, Learned Senior Advocate for the respondent submitted that the agreement for sale, Exhibit C, is not admissible in evidence as a document conferring interest in land in view of its non -compliance with section 2 and 15 of the Land Instrument Registration Law. An objection can be taken to the document’s admissibility at any stage, even on appeal, not withstanding that such objection was not taken at the court below. This right to take objection cannot be waived or compromised.
Counsel then referred to the case of Abawaha v. Adeshina 12 WACA 20.
Now it is pertinent to ask, “How did Exhibit C come to be admitted in evidence before trial court”. The answer is clear from the following dialogue during the cross-examination of the respondent:
“Q How old are you
Ans. 50 yrs. old. My father died in 1970. ”
Q. Why didn’t your father redeem this land
Ans. When I redeemed the land my father accompanied me.
Q. Why didn’t your father redeem it
Ans. No answer. He accompanied me because of the importance of the land to me. When I redeemed the land I was given a receipt. This is the receipt. Agreement dated 6/6/69 entered into after the redemption. Tendered, admitted and marked Exh. C. I have witnesses to the transaction
Q. Why is it that your father’s name is not in Exh. C as one of your witnesses. You have lied to the court that your father accompanied you.
Ans. It is not true. He did follow me.”
Exhibit C is therefore the respondent’s document and it was tendered by the respondent in an attempt to prove that he redeemed part of the disputed land in which he built a house and lives in. Exhibit C is a receipt which the appellants said is clear evidence that the transaction between the respondent and Mbahaotu was a sale and not a pledge. The respondent on the other hand argued that the receipt was given to him by Mbahaotu when he redeemed the land verged yellow in the Survey Plan, Exhibit A. It is therefore relevant to look at the Exhibit in order to give a decision one way or the other over the dispute between the parties. It reads as follows:
“AGREEMENT” made at Amoji, Umudi, Orlu, and dated 6th June, 1969, and contains the following:-
“This is an agreement made between Mr. Nwanedo Mbahaotu of Amoji, Umudi, Orlu and Mr. Christopher Onwumere (plaintiff) of Umuoke, Owerre Nkwoji, Orlu, this 6th day of June, 1969.
I, Mr. Nwanedo Mbahaotu have today sold my piece of land known as Owerre Ibewuihe in Amoji, Umudi, Orlu to Mr. Christopher Onwumere at the agreed price of 500pounds (Five hundred pounds) which I have received in full.
It is agreed between Mr. Nwanedo Mbahaotu and Mr. Christopher Onwumere that I Mr. Nwanedo Mbahaotu should uproot any standing tree in the land which is possible for me, otherwise anyone I left is for Mr. Christopher Onwumere”.
Signature of Buyer Signature or marks of Seller”.
(Italics mine).
It is crystal clear from the wordings of Exhibit C that it is evidence of sale of piece of a land and from the proceedings the document had been tendered in evidence simply to establish a fact which the parties have pleaded. It is not and cannot be an instrument as defined in the Land Instrument Registration Law. Even if it was an estate contract and consequently an instrument registrable for the purposes of the Land Instrument Registration Law of Eastern Nigeria, since the purpose of producing it was only to establish that the transaction between the respondent and Mbahaotu was for the redemption of a pledge, the document is admissible. See Lamidi Fakoya v. Paul’s Church Shagamu (1966) 1 All NLR page 68.
In the case of Joseph Babalola Oni & Ors. v. Samuel Arimoro (1973) NSCC 108 at 113 Fatai-Williams JSC.(as he was then) dealt with similar situation when this court considered an appeal where the Western State Court of Appeal attacked the decision of Ibadan High Court on the admissibility of a purchase receipt for the land dispute, in that case. It was decided by this court in holding that trial court made improper use of document tendered (Exhibit E) by the defendants as purchase receipt of land in dispute and gave their reason thus:
“With respect to the attack to the Western State Court of Appeal on the admissibility of the document (Ex. ‘E’) and the use made by the learned trial judge of its contents, we will do no more than to refer to the observation of Farewell, L.J. in South Eastern Railway Co. v. Associated Portland Cement Manufacturers (1910) 1 ch.12 which reads:-
“But the fact that there is some connection with or reference to land does not make a personal contract by any less a personal contract binding on him, with all the remedies arising thereout, unless the court can by construction turn it from a personal contract into a limitation of land, and a limitation of land only.”
This observation was referred to with approval in Fakoya v. St. Paul’s Chuch, Shagamu (1966) 1 All NLR 74 at page 80 where Brett, JSC. who delivered the judgment of the court observed as follows:-
“The personal obligations created by a contract for sale of land are already known to the parties to the contract and neither party can maintain against the other party that he was taken by surprise because the contract was not registered. Third parties may on occasion enter into unprofitable negotiations, but the register of instruments, affecting land does not purport to record the personal obligations of those who have interest in land, and the purchaser for value and without notice will have no less protection in consequence of our decision in this case than he had before.”
In the two cases I cited above the documents were registerable but were held admissible because they were not tendered as “instruments affecting land” but as an evidence of an agreement or request for specific performance. In the case in hand the document shows a simple customary agreement over the sale of a piece of land. It does not therefore fall within the definition of an instrument for the purpose of the Land Instrument Registration Law. See Olayede Akingbade v. Oyeyipo Elemosho (1964) All NLR. 146.
Chief Williams, SAN., submitted in support of the third issue which he formulated for the prosecution of this appeal that the Court of Appeal did not pay attention to the evidence on the record which the learned trial judge delivered as to how certain areas in the land in dispute came to be occupied by members of the respondent’s family. The learned Senior Advocate referred to Exhibit C and argued that if it was evidence of sale, then it destroys the claim of the respondent’s family that they are the owners of the land. Chief Mogboh, SAN., made a detailed submission on the pieces of evidence in which the appellants admitted that the respondent and his family had been in possession of some parts of the land in dispute.
The learned trial judge made a very helpful and accurate summary of the facts over the possession and occupation of the land in dispute and admissions made in the pleadings in his judgment. The summary gives a correct picture, in my view, of the position of the parties over the land in dispute. The learned trial judge’s summary of the facts reads as follows:
“(a) the land in dispute as shown in the two survey plans Exhibits A and B is separate and distinct from the area of land now inhabited by plaintiff’s member of Emenaugha family.
(b) The area the plaintiff and his relations are presently living is the area plaintiff called “ALA EMENAUGHA” whereas the area in dispute plaintiff called “Owerre Ibewuihe” as shown in Exh. C. (sic)
(c) Plaintiff’s pleadings alleged that the land is at Umuoke, Owerre Nkwoji whereas his evidence, supported by Exh. C, said the land is in Amaoji, Umudi.
(d) The traditional evidence of plaintiff related specifically to “Ala Emenaugha” and not “Owerre Ibewuihe” which he is disputing with defendants.
(e) Paragraphs 3 and 4 of plaintiff’s pleadings referred to the land in dispute as “Ala Emenaugha”, not Owerre Ibewuihe”.
(f) Paragraph 10 of defendants’ pleadings alleged that defendants are not quarrelling with plaintiff and his relations over the area in which they are presently living; that is to say, the area the plaintiff described as “Ala Emenuagha”. Rather, the quarrel is over the extension, the area plaintiff wants to erect his new building which is the bone of contention.
(g) Plaintiff produced no boundary men to support his claim.
(h) The traditional evidence of the defendants is more probable, that the founder of their town was one Dii from which the children derived their name of Umudi; and that “Ohia Ajimiri” meant “a bush reserved to Ajimiri juju”.
(i) The graves of the deceased relations of plaintiff are shown conspicuously inside” Ala Emenaugha” where the family members are now living, none in the area in dispute. On the contrary, the graves of the deceased relations of the defendants are shown inside the land in dispute.
(j) The Ajimiru juju is on the land in dispute and not inside the residential area of plaintiff and his family, which they described as ‘Ala Emenaugha’ .
(k) The evidence of DW2 that Ajimiri belongs to Umudi and not to Umuoke Owerre Nkwoji is very relevant here, and I accept this evidence.”
I regard the order made by the court below that the respondent was entitled to both customary and statutory right of occupancy over the land in dispute as a mere slip. I take note that both learned Senior Counsel agree that the finding was a slip and as such I would not make any comment over it. In any event by this judgment the respondent and his family are not entitled to any of the declarations.
‘In the result this appeal succeeds and it is allowed. The judgment of the Court of Appeal, with any order of costs made therein, is hereby set aside. The judgment of Johnson, J., of Imo State High Court delivered on the 2nd February, 1983 is hereby restored and that shall be the judgment of that court. I award N500.00 costs in favour of the appellants at court of Appeal and N1,000.00 in this court.
SC.258/1988
