Chief Michael O. Okonyia V. Nnamdi Ikengah & Anor (2000)

LawGlobal-Hub Lead Judgment Report

BA’ ABA, J.C.A.

This is an appeal against the judgment of the High Court, Asaba, in suit No. A/9/86, brought by the defendant who is now the appellant. The plaintiffs who are now the respondents initially instituted this action against one Edwin O. Okonkwo now deceased and the appellant and claimed as per paragraph 17 of their joint statement of claim as follows:-

“17 (i) Declaration that the plaintiffs are entitled to Statutory Certificate of Occupancy in respect of a piece of land being situated and lying on the Okpanam/Asaba Road in Asaba Urban and shown verged pink on survey Plan No.VLD/BDI/90.

(ii) Recovery of the said land from which the defendants have ejected the plaintiffs since about three years ago.

(iii) Perpetual injunction restraining the defendants, their agents, servants, workmen, heirs and successors and persons claiming through them from any or further or interference over the plaintiff’s enjoyment of the said land”.

Pleadings were ordered, filed and duly exchanged. The original statement of claim of 17 paragraphs dated 10/1/86, was filed on 15/10/86. The original statement of defence of 14 paragraphs dated 7/1/87 was filed on 16/1/87. The record shows that on being served with the statement of defence, the plaintiffs sought and obtained leave to file a reply to the statement of defence. Accordingly, a reply to the statement of defence dated 5/6/87 was filed on 13/7/87, the day leave was granted.

Thereafter, there were few amendments to the original pleadings by both parties.

However, the amendments to the statement of claim were effected by hand on the body of the original statement of claim. The final amended statement defence dated 25/1/91 was filed on 14/3/91.

At the trial, the 1st respondent testified for both respondents and they jointly called six witnesses. For his part, the 2nd defendant testified on Oath and called five witnesses.

The respondent’s case was that the plaintiffs are the administrator and administratix of the estate of late George Onyechi Ikengah, of Aboh in Ndokwa Local Government Area of Bendel State of Nigeria, who died at Onitsha on 4/11/76. The first Plaintiff is the son, and the second plaintiff the widow of late George Onyechi Ikengah. Letter of Administration, without will of the estate of late George Onyechi lkengah was granted to the Plaintiffs on 7/11/79. The plaintiffs sued the defendants as administrators of the estate of George Onyechi Ikengah.

The land which the plaintiffs seek to recover from the defendants, referred is along Okpanam-Asaba Road, in Asaba, within the jurisdiction of Delta State High Court. Late George Onyechi Ikengah, until his death in 1976 was the owner of the land in dispute which he acquired by purchase from Joseph Iloba Ogbotobo of Ogba, Onishe Family of Asaba who were the absolute owners. At the time of the purchase in 1967, late George Onyechi Ikengah was working for the Asaba ile Mills Ltd. The purchase price for the land in dispute was paid by late George O. Ikengah by two instalments. Consequent upon the purchase, the late George Onyechi Ikengah went into possession of the land and planted economic trees and melina trees and planted annual crops on the land in dispute without interruption from any person whatsoever. Late George Onyechi Ikengah got the unregistered deed stamped by the Commissioner for Stamp Duties at Benin City as Document No.ML 8845. After the Nigeria civil war, Late George Onyechi Ikengah continued to plant and reap economic crops on the land in dispute without let or hindrance from anybody whatsoever. In June, 1971, he got the services of Mr. G.O. Obianwu, a Licensed Surveyor to take a survey of the land in dispute and produce a plan. After the death of George Onyechi Ikengah, the plaintiff stepped into the shoes vis-a-vis the land in dispute. The plaintiffs reap the economic fruits on the land in dispute, plant seasonal crops and let the first defendant to plant crops on a portion of the land in dispute upon payment of a token tribute or in consideration of looking after the land in dispute for the plaintiffs. Sometime in 1982, the defendants broke into and entered the land in dispute and without the permission and consent of the plaintiffs removed two of the beacons on the land in dispute, cleared portions of the land in dispute. As time went on, they enclosed a large portion of the land in dispute with concrete walls upon which they fixed an iron gate. They then proceeded to construct two structures on portion of the land in dispute removing some economic crops planted by the late George Ikengah and the plaintiffs. It took a long time for the plaintiffs to seek out the defendants. In the mean time, the plaintiffs reported the incident to the police at Asaba while still looking for the trespassers. When the plaintiffs sought out the first defendant, he at first denied knowing anything about the trespass. Later, the plaintiff sought out the second defendant who admitted in the presence of Dr. Ogeah that, it was the first defendant who sold the land in dispute to him and that it was the second defendant and the first defendant who are erecting the structure on portions of the land in dispute. Neither the plaintiffs nor late George Onyechi Ikengah sold the land in dispute or portion of it to the first defendant. The first defendant has no title in the land in dispute to convey to the second defendant nor has the second defendant acquired any title in the land in dispute, hence the institution of the action.

The appellant’s case was that on the 5th day of January, 1977, the first defendant in accordance with the native law and custom of Asaba, sold the land in dispute to the appellant. Before purchasing the land in dispute, the appellant made all necessary inquiries from many people at Asaba including members of the Ogba-Onishe family of Umuagu Quarters, Asaba and they confirmed to the appellant that the first defendant was then the owner of the land in dispute. On purchasing the land in dispute, the appellant immediately went into possession of the said land on the 5th day of January, 1977, bulldozed the same, fenced the same, round with concrete cement blocks and installed an iron gate at the entrance of the said land.

From 1977 to 1981, the appellant farmed on the land in dispute, by planting yams and pawpaw plants thereon. In 1983, 1984 and 1985, the appellant planted yams on the unbuilt up portions of the land in dispute. Early in 1982, the appellant deposited various building materials including cement blocks, stones, sand, timber etc. on the land in dispute and as soon as the appellant’s building plan in respect of the land and dispute was approved, the appellant started the erection of a storey building and a bungalow house on the land in dispute. By December 1982, the storey building had reached the wall plate level of the first and each of the floors, the ground floor and the first floor consists of two three-bedrooms flats. The bungalow house had in December, 1982, reached the wall plate level; the building consists of two bedroom flats. The appellant connected pipe-borne water to the land in dispute in 1982. From 1977 to 1985, nobody interferred with the appellant in the exercise of his acts of ownership and possession over the land in dispute. On the 11th day of March, 1986, the respondents damaged part of the appellant’s rear wall on the land in dispute and caused some damage to the iron gate and the padlock with which the appellant locked up the gate on the land in dispute. The appellant reported the matter to the Nigeria Police, Asaba, and the respondent was charged to court but as there was a pending suit in the High Court, Asaba, on the issue as to the ownership of the land in dispute, the charge was struck out by the Chief Magistrate.

The learned trial Judge, Edah, J. on 4/3/93, delivered his judgment in favour of the respondents when he held:

“On the whole, therefore I hold on the credible evidence before me that the plaintiffs have proved their case against the defendants on a preponderance of evidence. In the result, I hereby enter judgment in favour of the plaintiffs in the following terms:

1. I hereby declare that the plaintiffs are entitled to Statutory Certificate of Occupancy in respect of a piece of land being situate and lying on the Okpanam/Asaba Road, Asaba Urban and shown verged blue on survey plan VLD/BD1/90 marked Exhibit ‘M’.
2. I hereby order that the plaintiffs do recover from the defendants forthwith the said parcel of land from which the Defendants ejected the plaintiffs since 1982.
3. An order of perpetual injunction is hereby issued restraining the defendants by themselves, their agents, servants, workmen, heirs successors and persons claiming through them from any or further use or interference over the plaintiff’s enjoyment of the said parcel of land shown verged blue in survey plan No.VLD/BD1/90. The cost of this section (sic) is assessed at N1,500.00 in the favour of the plaintiffs”.

The appellant was not satisfied with judgment of the learned trial Judge and has appealed to this Court by his notice and grounds of appeal dated 20/3/93, filed on his, behalf on 25/3/93, containing 17 grounds of appeal. The grounds of appeal and their particulars are as follows:-

“(1) That the learned trial Judge erred in law in ‘A’ – ‘A1’ were validly granted by the former Bendel State High Court of Justice was not raised in the pleadings and in refusing to consider the said issue on the basis that it was raised for the first time during counsel’s final address.

Particulars of error:

(i) That the issue whether Exhibits ‘A’ and ‘A1’ were validly granted by the former Bendel State High Court of Justice was raised in the pleadings.

(ii) That the defendant-appellant was not required to plead law.

(iii) That the plaintiffs-respondents relied on Exhibit ‘A’ which is the same as Exhibit ‘A1’ for their right to sue and for the reliefs they sought and as such the learned trial Judge was bound to pronounce both on the competence to issue the said Exhibit ‘A’ and on its validity.

(iv) That the defendant-appellant was entitled to raise in his final address the issue as to the competence of the former Bendel State High Court of Justice to grant Exhibit ‘A’.

(2) That the learned trial Judge erred in law in ‘deeming’ Exhibits ‘A’ and ‘A1’ as validly issued and as conferring upon the plaintiffs/respondents the power interest and rights entitling them to sue thereon when the former Bendel State High Court of Justice had not the competence to issue the said Exhibits ‘A’ and ‘A1’.

(3) That the learned trial Judge at any event erred in law in entertaining the plaintiffs-respondent’s claims.

Particulars of error

(i) That the plaintiffs- respondents never applied for the administration of the land in dispute.

(ii) That Exhibits ‘A’-‘A1’ did not cover the land in dispute as the said land was not set out therein.

(4) That the learned trial Judge erred in law in holding that the failure to set out the land in dispute in Exhibit ‘A’ as the land which administration was granted was cured by the pleadings and evidence on record.

Particulars of error:

(i) That the pleadings and evidence on record could not in any way cure the failure to set out the land in dispute in Exhibit ‘A’ as the land to which administration was granted.

(5) That the learned trial Judge erred in law in holding that no issue was joined as to whether Exhibit ‘A1’ covered the land in dispute as issue was so joined and in addition the defendant-appellant was entitled to deal with the question as a matter of law.

(6) That the learned trial Judge misdirected himself in fact in the following passage of his judgment:

“Finally on this issue, there appears to be no evidence given by the 2nd defendant to the effect that Exhibit ‘A’ relied on by the plaintiffs does not relate to or cover the land in dispute”.

Particulars of misdirection:

(i) That the learned trial Judge failed to direct his mind to the evidence of DW3 and land in dispute was not sworn to in Exhibit ‘T’.

(7) That the learned trial Judge erred in fact in the following passage of his judgment:

“I find as a fact on the overwhelming evidence before me that nobody, alive or dead, ever sold the land in dispute to the 1st defendant. There is evidence on record which I accept and believe that on the death of George O. Ikengah, the Plaintiffs put the 1st defendant in possession of the land in dispute as their caretaker. At paragraph 10 of the statement of claim, the plaintiffs aver that they ‘let the 1st defendant to plant crops on portion of the land in dispute upon payment of a token tribute or in consideration of looking after the land in dispute for the plaintiff’.

This paragraph has not been properly traversed, there being only a bare denial of the above averment in paragraph 3 of the statement of defence. A bare denial of a specified allegation has been held not to be a proper traverse. The 1st plaintiff testified in support of that averment but he was not cross-examined on the points.

Particulars of error:

(i) That the land in dispute was not sworn to Exhibit ‘T’

(ii) That it was not shown in either Exhibit ‘L’ or Exhibit ‘M’ any limited area to which the late Edwin O. Okonkwo was put in possession.

(iii) That on the plaintiffs-respondents own showing they never question the now late Edwin O. Okonkwo 1977 to 10th March, 1998 on operations on the land in dispute.

(iv) That the late Edwin O. Okonkwo never paid anything to the plaintiff-respondents for farming on the land in dispute.

(v) That at the hearing of this suit Edwin Okonkwo O. who was sued as the then first defendant had died and his previous statement of defence was consequently not before the trial Court for adjudication.

(vi) That the now late Edwin O. Okonkwo had no opportunity to testify at the hearing of the suit.

(vii) That paragraph 10 of the amended statement of claim was properly traversed by the defendant-appellant.

(viii) That the 1st plaintiff-respondent was cross-examined on his testimony in respect of their averment in paragraph 10 of the amended statement of claim and nobody corroborated his said evidence.

(8) That the learned trial Judge erred in fact in holding that the late Edwin O. Okonkwo breached the trust reposed in him as a caretaker and fraudulently purported to sell the land to himself and thereafter purportedly sold the land in dispute to the Defendant-appellant.

Particular of error:

(i) That the late Edwin O. Okonkwo was never the caretaker of the plaintiffs-respondents in respect of the land in dispute and he never breached any alleged trust.

(ii) That the late Edwin O. Okonkwo was in possession of the land in dispute before he sold the same to the defendant/appellant.

(iii) That for nine years after the sale of the land in dispute by Edwin O. Okonkwo to the defendant-appellant, the plaintiffs-respondents never question the right of Edwin O. Okonkwo to effect the said sale.

(9) That the learned trial Judge erred in fact in holding that Exhibits ‘G, H, J & J1’ were forged by the late Edwin O. Okonkwo as the said documents were not established to be forgeries.

(10) That the learned trial Judge erred in law in admitting Exhibits ‘J’ and ‘J1’ in evidence.

Particulars of error:

(i) That Exhibit ‘J’ was pleaded by the plaintiffs-respondents as a conveyance and as the document was not registered under the Land Instruments Registration Law it was inadmissible in evidence.

(ii) That the original of Exhibit ‘J1’ was a survey plan made by a licensed Surveyor and PW2 was not competent to tender Exhibit ‘J1’ as a copy of a survey plan as she was not the maker thereof.

(11) That the learned trial Judge misdirected himself in law and in fact in the following passage of his judgment:

“The reply was filed on 13/7/87. I do observe that since the reply was filed, the 2nd Defendant has amended his pleading about twice. No attempt seems to have been made to answer the serious allegation of fraud and forgery contained in the reply. It seems to me to be one of the fundamental principles of the rules of pleadings that what is not specifically denied is deemed to be admitted. Furthermore, the 2nd Defendant, in his evidence under cross-examination admitted that because his documents of title, that is to say, Exhibits ‘G, H, J & J1’ were defective and worthless, he was advised not to use them in applying for a Certificate of Occupancy. And because they were worthless he had to destroy the original copies of the document”.

Particulars of misdirection:

(i) That averments in a reply are not answered in a further amended statement of defence.

(ii) That the defendant-appellant was not ordered by the Court to file any further pleadings in answer to the reply.

(iii) That with the death of the former 1st defendant, Edwin O. Okonkwo, on the 20th day of June, 1990 and with the defendant-appellant filling a separate amended statement of defence and thereafter a separate further amended statement of defence the reply became ineffective.

(iv) That even if the reply could be deemed to be before the court for hearing and determination of the case, the defendant-appellant must be deemed in law to have joined issue upon the reply.

(v) That the defendant-appellant did not in any way admit the allegation in the reply.

(vi) That Exhibit ‘J’ & ‘J1’ were inadmissible in evidence and any evidence on them was irrelevant and of no effect.

(vii) That the defendant-appellant did not allege that he destroyed the originals of Exhibits ‘G’ & ‘H’.

(viii) That learned trial Judge erred in law and in fact in holding that the late Edwin O. Okonkwo acquired no title in the land in dispute and that he transferred no title in the land in dispute to the defendant-appellant.

Particulars of error:

(i) That on the totality of the evidence in the case Edwin O. Okonkwo acquired title over the land in dispute under the native law and custom of Asaba and he transferred the same title to the defendant-appellant under the same customary law.

(13) That the learned trial Judge misdirected himself in law and in fact in holding that the defendant-appellant must have completed his buildings on the land in dispute before the equitable defences of laches, acquiescence, estoppel by conduct and standing by could apply.

Particulars of misdirection:

(i) That it is a condition precedent that a person building on a land which he believed to be his own must have completed his building on such land without warning before the equitable defences of laches acquiescence, estoppel by conduct and standing-by could apply.

(ii) That the equitable defences will apply where the party building was led by the other party to incure substantial expenditure on the land in dispute.

(iii) That in this case the defendant-appellant was led by the plaintiffs-respondents into incurring substantial expenditure on the land in dispute by erecting the concrete fence and the building thereon to the roofing stage.

(14) That the learned trial Judge misdirected himself in law and in fact in holding that the equitable defences of laches, acquiescence, estoppel by conduct and standing-by did not avail the defendant appellant in this case.

Particulars of misdirection:

(i) that the defendants-appellant was in possession of the land in dispute for at least nine years before the plaintiffs-respondents started their claim to the land in dispute.

(ii) That the defendant-appellant believed that land he was building upon was his own and he expended substantial amount of money in fencing the land with concrete wall and in erecting a storey building and a bungalow building on the said land up to the roofing stage.

(iii) That the plaintiffs-respondents led the defendant-appellant into believing that the land in dispute on which he built was his own.

(iv) That the plaintiffs-respondents knew of the building operations of the defendant-appellant on the land in dispute and of his possession of the said land from 1977 to March, 1986, when they started their claim thereon.

(v) That the plaintiffs-respondents did nothing from 1977 up to the 10th day of March, 1986, to stop the defendant appellant from building on the land in dispute and that the 1st plaintiff-respondent made his only report to the police in this matter after the defendant-appellant had reported him to the police for damaging his property.

(vi) That although the plaintiffs-respondents were resident at Onitsha across the Niger Bridge from Asaba, the 1st plaintiff-respondent visited the land in dispute at all material times.

(vii) That on purchasing the land in dispute from the former 1st defendant, Edwin O. Okonkwo, the defendant-appellant believed the land in dispute to be his own and the doctrine of notice raised by the learned trial Judge did not apply to this aspect of the case.

(15) That the learned trial Judge misdirected himself in law and in fact in holding that the defendant-appellant was caught by the alleged doctrine of notice and that he failed to discharge the onus on him of showing that he had no notice, actual constructive or imputed of the plaintiffs-respondent’s existing equitable interest or interest in the land in dispute.

Particulars of misdirection:

(i) That before purchasing the land in dispute the defendant- appellant made inquiries as to the ownership of the said land at that time and even the Chairman/Secretary of the Committee of the Ogbe Onishe Family the original owners of the land confirmed to the Defendant-appellant that the land in dispute then belonged to the former 1st defendant, Edwin O. Okonkwo, who was then in possession of the said land.

(ii) That even PW.1, the family friend of the plaintiff-respondents knew that the defendant-appellant purchased the land in dispute.

(iii) That at the time the defendant-appellant purchased the land in dispute he did not know and had no cause to know that any other person than Edwin O. Okonkwo had any interest whether equitable or otherwise in the land in dispute.

(iv) That the defendant-appellant was not caught by any doctrine of notice.

(v) That the survey beacons on the southern extremite of the land in dispute of which DW.2 testified were not MB.3502 but DB.112 & DB.1125.

(vi) That DW2 made Exhibit ‘S’ for the defendant-appellant in November, 1986 and his knowledge of any beacons at that time could not be imputed to the defendant-appellant in 1977 when he purchased the land in dispute.

(vii) That at any event the existence of any beacons on the southern extreme of the land in dispute made no differences as the defendant-appellant believed he purchased the land in dispute from the then rightful owner.

(16) That the learned trial Judge erred in fact in holding that when the 1st plaintiff-respondent noticed what was going on the land in dispute he sought in vain to locate the 1st defendant and thereafter he reported the matter to the police without result.

Particulars of error:

(i) That the 1st plaintiff-respondent testified under cross-examination that it was only in March, 1986, that he looked for the late Edwin O. Okonkwo.

(ii) That the 1st plaintiff-respondent testified under cross-examination that it was in March, 1986, that he ever made a complaint to the Police in respect of the land in dispute.

(iii) That the findings complained of in this ground of appeal are not borne out by the evidence before the court.

(17) That the judgment is against the weight of evidence.

Briefs of argument were filed on behalf of the parties. From the grounds of appeal filed, the following issues were formulated in the appellant’s brief for determination in this appeal:

(1) Was the lower court right in refusing to consider the issue as to whether Exhibits ‘A’ and ‘A1’ were validly granted by the former High Court of the Bendel State of Nigeria on the ground that the issue was not raised in the pleadings but only for the first time in counsel’s final address?

(Ground (1) of the grounds of appeal).

(2) Was the lower court right in ‘deeming’ Exhibits ‘A’ and ‘A1’ as validly issued and in holding that the said Exhibits ‘A’ and ‘A1’ conferred on the plaintiffs-respondents the power, interest and right to institute this suit?

(Ground (2) of the grounds of appeal).

(3) Was the lower court right in entertaining the plaintiffs-respondent’s claims in this case and in holding that the failure to set out the land in dispute in Exhibit ‘A’ was cured by the pleadings and the evidence in the case?

(Grounds (3) and (4) of the grounds of appeal).

(4) Was the lower court right in holding that no issue was joined as to whether Exhibit ‘A’ covered the land in dispute and that the defendant-appellant did not lead any evidence to show that Exhibit ‘A’ did not relate to the land in dispute?

(Grounds (5) and (6) of the grounds of appeal).

(5) Was the lower court right in admitting Exhibits ‘J’ and ‘J1’ in evidence and in relying thereon in coming to its decision?

(Ground (10) of the grounds of appeal).

(6) Having regard to the Rules of pleading and the course of the pleadings and the evidence in this case, was the lower court right in inferring that the accusations of fraud and forgery in the plaintiffs respondent’s reply filed on 13-7-87 were admitted and in holding that the defendant-appellant also admitted under cross-examination that he destroyed the original of Exhibits ‘G’ and ‘H’? (Ground (11) of the grounds of appeal).

(7) Was the lower court right, having regard to the pleadings and the evidence in the case in holding that the equitable defences of laches, acquiescence, estoppel by conduct and standing-by did not avail the defendant-appellant in this case?

(Grounds (13) and (14) of the grounds of appeal)

(8) Was the lower court right in holding that the defendant-appellant was caught by the doctrine of notice in this case?

(Ground (15) of the grounds of appeal).

(9) Did the lower court properly evaluate the evidence in the case and did it make correct findings of fact thereon? (Grounds (7), (8), (9), (12), (16) and (17) of the grounds of appeal).

The respondents filed a notice of preliminary objection dated 15/9/97, which they incorporated in their amended respondents brief of argument dated 20/1/98, filed on 29/11/99 in compliance with the order of this Honourable court on 12/10/98. The respondents also raised the objections in their amended brief to grounds 11, 12, 13, 14 and 15 of the grounds of appeal and issue No.9 formulated from grounds of appeal Nos. 7, 8, 9, 12, 16 and 17 of the grounds of appeal. They contended that:

1. Whether ground 12 discloses a reasonable ground of appeal within Order 3 rules 2(2), 2(3) and 2(4) and whether the same can be an error of law and at the same time an error on the facts.
2. Whether each of grounds 11, 13, 14, and 15 discloses a reasonable ground of appeal within Order 3 rules 2(2), 2(3) and 2(4) and whether each can be a misdirection of law and at the same time a misdirection of facts.

In the respondent’s view, the issues arising from the proper grounds of appeal are:

1. Was the trial court right in deeming Exhibit ‘A’ and ‘A1’ as validly issued as the defendant did not join issues on the pleadings regarding the competence of Bendel State High Court to issue them?.
2. Whether on the pleadings and evidence the trial court was right in entertaining the suit under the capacity in which the plaintiffs instituted it.
3. Whether the trial court was right in holding that the defendant-appellant was caught by the doctrine of notice.
4. Whether the defendant-appellant discharged the onus, placed on him by law, of proving the defences of laches, acquiescence, estoppel by conduct and standing-by.
5. Whether the trial court was right in admitting Exhibits ‘J’ and ‘J1’ and if it was, whether it was justified in holding that the said Exhibits together with Exhibits ‘G’ and ‘H’ are forged.
6. Whether there was sufficient and acceptable evidence on record to warrant the findings of the lower court in favour of the plaintiffs.

When the appeal came up for hearing on 27/1/2000, Mr. G.R.I. Egonu, S.A.N. for the appellant, adopted and relied on the appellant’s brief of argument dated 7/11/96 filed on 11/11/96; the reply brief dated 14/2/98, filed on 16/2/98 as well as the reply to the preliminary objection dated 29/9/99, filed on 7/11/99.

Mr. B.C. Ogbuli for the respondents, also adopted and relied on the amended respondent’s brief dated 29/11/98 filed 29/1/99 and his notice of preliminary objection dated 15/9/97. Both Counsels advanced oral argument in elaboration of their respective briefs.

Although the learned Senior Advocate of Nigeria for the appellant in his oral submissions only referred to issues silent on the remaining issues formulated from the grounds attacked by the respondents as being incompetent in their amended respondent’s brief as a result, I must first deal with the preliminary objection.

The learned counsel for the respondents raised two issues for determination in his preliminary objection reproduced in this judgment. In his notice of preliminary objection, dated 15/9/97, which is also incorporated in the amended respondent’s brief of argument, attacked grounds of appeal Nos. 11, 12,13,14 and 15 of the grounds of appeal on pages 195 -197 of the record and urged us to strike out the said grounds as they are incompetent. It is the contention of the learned Counsel for the respondents that ground of appeal No. 12 as constituted, together with the sale ‘particulars of error’ cannot disclose a reasonable ground of appeal, as it is vague and lumps two grounds of appeal, viz: ‘error of law’ and ‘error of fact’ into the ground of appeal. He submitted that the two that is ‘error of law’ and error of fact can not be constituted in the same ground and that the said ground as couched is exfacie that the appellant’s complaint is on finding of fact by the trial Judge. Relying on a number of authorities, learned Counsel for the respondents, submitted that each of the ground referring to, of the grounds of appeal Nos. 11, 13, 14 and 15 are vague in the extreme in that a misdirection of law and a misdirection of fact are two grounds of appeal which can not be one. In addition, each of the said grounds has no ‘particulars’ of misdirection in law and ‘particulars’ of misdirection on fact. He further contended that all the particulars in support of each of the said grounds of appeal are mere legal argument and or narrative and none of the said ground discloses a reasonable ground of appeal and offends the provision of Order 2 rule (2) (3) of the Court of Appeal, Rules, 1984. Counsel referred to issue No.9 formulated at page 3 of the appellant’s brief, formulated from grounds of appeal Nos. 7, 8, 9,12,16 and 17 and submitted that as the issue is distilled from both competent and incompetent grounds of appeal it is rendered incompetent and ought to be struck out, relying on the authority of Nwakanma v. Mil. Admin., Abia State (1995) 4 NWLR (pt.388) at 185. In conclusion, learned Counsel for the respondents urged us to strike out grounds of appeal Nos. 11, 12, 13, 14 and 15 of the appellant’s grounds of appeal for being incompetent consequently issues Nos. 6, 7, 8, and 9 distilled from the said grounds of appeal for the reasons stated in the amended respondents brief. In appellant’s reply brief to the preliminary objection, the learned Senior Advocate of Nigeria, on the appellants ground of appeal No. 12, submitted that the grounds of appeal is clear and does not contravene any rule as procedure of the Court of Appeal Rules and is a competent ground of appeal. Learned Senior Advocate of Nigeria, further submitted that of the ground of appeal viz Nos. 11, 13, 14 and 15 is a ground of law and fact that is a ground of mixed law and fact that each of the said ground is not two grounds lumped together. He pointed out that apart from each ground of appeal being a ground of appeal of law alone or fact alone, there is a recognised third type of ground of appeal, that is a ground of appeal of mixed law and fact and this may be one error in law and in fact or of misdirection in law and fact. He concluded that a ground of appeal on mixed law and fact is not incompetent in an appeal against a final decision from the trial court to the Court of Appeal. Learned Senior Counsel submitted that each of the said ground of appeal is clear and is a reasonable ground and that none has contravened the provisions of Order 3 rule (2) (3) or (4) of the Court of Appeal Rules, 1981 as amended.

The bone of contention between the respondents and the appellant in respect of the preliminary objection, appears to be the correct interpretation of the provisions of Order 3 rules (2) (3) and (4) of the Rules in this Honourable Court, which reads:

“Order 3(2)

Sub-rule 2. If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.

Sub-rule (3). The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

Sub-rule (4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent”.

In F.B.N. Plc. v. Obiechina Ejikeme & Sons (1994) 4 NWLR (Pt.340) 583 at 595, dealing with a similar issue my learned brother, Orah, JCA. had this to say:

”A ground of appeal cannot be in the same ground an error in law and on the fact, or indeed, an error in law and misdirection see Order 3 R.2(2) CAR 1981; see also Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718; Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86 at 96-97; Atuyeye v.Ashamu (1987) 1 NWLR (Pt.49) 267, 279; Ifediorah v. Ume (1988) 2 NWLR (pt.74) 5 at 16; Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 372 at 379”.

For the avoidance of doubt, Nnaemeka-Agu, JSC. (as he the was) in Nwadike v. Ibekwe (supra), at pp. 744 – 745 as follows:

“…a ground of appeal cannot be an error in law and misdirection at the same time, as the appellant’s grounds clearly postulate. By their nature, one ground of appeal cannot be two.For the word ‘misdirection’ originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made either in pursuit or in defence, fairly submitted to the consideration of the tribunal. See Bray v. Ford (1985) AC 44 at 139. In our system in which the Judge is the Judge and jury, a misdirection occurs when the Judge misconceives the issue whether of facts or of law or summarises the evidence inadequately or incorrectly see Chidiak v. Laguda (1964) 1 All NLR 160, (1964) NMLR 123. He may commit a misdirection either by a positive act or by non-direction. But when his error related to his finding, it cannot be called a misdirection. This is why the appellant’s ground (in that case 4, 5, 7 and 8 said to be an ‘error in law’ and ‘misdirection” above every other defects obvious incongruities see Amadi v. Okoli (1977) 7 SC at p. 58″

In Incar (Nig.) Plc v. Bolex Ent. (Nig.) Ltd. (1996) 6 NWLR (pt. 454) 318 at 341, dealing with a similar issue, my learned brother, Onalaja, JCA, adopted and relied on First Bank of Nigeria Plc. (supra) and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744 – 745 judgment of the Supreme Court of Nigeria, Kalu v. Mbuko (1988) 3 NWLR (pt. 80) 86, Bereyil v. Gbobo (1989) 1 NWLR (Pt.97) 372 where the test of distinguishing ground of law from ground of fact was stated by, the Supreme Court in J. B. Ogbechie & Ors v. Gabriel Onochie (No. 2) (1986) 2 NWLR (pt.23) 484 where the Supreme Court, held:

“(1) It is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the ground of appeal reveal a misunderstanding of the law to the facts already proved or admitted.

(2) A ground of appeal which complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted is a ground of law.

(3) A ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact.

(4) A ground of appeal which raises a question of pure fact is easier to determine:”

Where an issue is not based on or connected to a ground of appeal such an issue cannot be relied upon or used in argument. Any issue also based on an incompetent ground of appeal contaminates such issue with incompetence and the Court of Appeal shall disregard such an issue.In our appellate practice issues are not formulated out of blues or not sprung on the appellant, the issues even formulated by the respondent must be predicated on the grounds of appeal, it can not be framed in the abstract. See Okonkwo v. Okolo (1988) 2 NWLR (Pt.79) 632, Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) 275 and Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643 at 665. When a ground of appeal is incompetent, any issue for determination based on the incompetent ground of appeal goes to no issue and should be struck out as incompetent. An issue for determination derives its support from the ground of appeal and cannot exist independent of the ground of appeal. It automatically collapses when the ground of appeal ceases to exist. See Fasoro & Ors. v. Beyioku & Ors. (1988) 2 NWLR (Pt.76) 263 and Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546. Having carefully examined grounds of appeal Nos.11-15 of the appellant’s grounds of appeal which I deliberately reproduced in this judgment, I find that each of the said ground is complaining of error in law and on fact. I am also of the view that grounds of appeal Nos. 6-10 of the grounds of appeal are vague as none of the said grounds contain a clear complaint from which an issue for determination can be formulated. The ‘particulars’ or passage quoted from the judgment in some cases appear to be a complaint on its own instead of supporting the ground. A ground of appeal must be a complaint. With the greatest respect to the learned Senior Advocate of Nigeria, for the appellant, I was unable to discern the complaints in the appellant’s grounds of appeal Nos. 6-10 for example what is the appellant’s complaint in his ground of appeal No.6 which reads:

“6. That the learned Judge misdirected himself, on fact in the following passage of his judgment.”

The ground is followed by a quotation from the judgment and particulars supplied, is the court to find out the complaint from the passage and the particulars, on behalf of the appellant? I therefore agree with the learned Counsel for respondents that the appellant has contravened the provisions of Order 3 rule (2) (3) and (4) of the rules of this Honourable court, 1981 as amended and hold that the appellant’s grounds of appeal Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 are incompetent consequently issues Nos. 4, 5, 6, 7, 8 and 9 all formulated on incompetent grounds of appeal are hereby struck out. As a result, only three issues viz: issues Nos. 1.2 and 3 remain as valid issues for determination.

It is unfortunate that even the omnibus ground of appeal cannot be considered in this appeal as issue No.9 formulated from ground of appeal No. 17, a competent ground but formulated together with other incompetent grounds of appeal consequently the issue has been contaminated by the other incompetent grounds as clearly shown at page 3 of the appellant’s brief as ablyargued by the learned Counsel for the respondent. I will now proceed to determine the appeal on the remaining issues formulated by the appellant. As all the three issues are tied to Exhibits A and A1, I intend to deal with all the three issues together. In the appellant’s brief of argument, learned Senior Advocate of Nigeria, for the appellant, commenced his submission by referring particularly to paragraphs 1 and 2 of respondent’s amended statement of claim and paragraphs 2, 3 and 12 of the appellant’s further amended statement of defence. He submitted that from the referred paragraphs of both the amended statement of claim and further amended statement of defence the onus is on the respondents to prove that in law and in fact the administrator and administratix of the estate of late George Onyechi Ikengah, who died in Onitsha, in the Anambra State of Nigeria, on the 4th day of November, 1976, had, as Administrator and Administratix, interest, right and power over the land in dispute. Learned Senior Advocate of Nigeria, pointed out that the parties joined issue as shown on the pleadings on competency of the respondent to institute the suit, and contended that as the respondents did not state in their amended statement of claim that it was the former Bendel State High Court, Exhibits ‘A’ and ‘A1’, paragraphs 12 of the appellant’s further amended statement of defence as pleaded has sufficiently denied the fact that the respondents had no interest, rights or power over the land in dispute coupled with paragraphs 3 of the further amended statement of defence. He maintained that as a Counsel to the appellant, he was entitled during address to show that Exhibits ‘A’ and ‘A1’ was incompetent or invalid and did not confer on the respondents any interest, rights or power over the land in dispute consequently respondents had no right to institute the suit. Learned Senior Advocate of Nigeria, stressed that competence to institute an action is an essential or indeed a vital factor in deciding the competence of the action itself and cited the case of West Minister Bank Ltd. and Anor. v. Edwards and Anor. (1942) AC 529 at 536. He further contended that the lower court was in error in holding that the question of the competence of the former Bendel State High Court to issue Exhibits ‘A’ and ‘A1’ was not raised in the pleadings but only at the address stage. Learned Senior Advocate of Nigeria, quoted from a portion of the judgment of the lower court, on his complaint on the refusal of the lower court to consider the issue of competence and validity of Exhibits ‘A’ and ‘A1 and submitted that the court was bound as a matter of law to consider and determine whether Exhibits ‘A’ and ‘A1’ were validly issued by the former Bendel State High Court as the appellant’s further amended statement of defence has sufficiently pleaded the material of facts. He further contended that the lower court was in error in holding that issue of the validity of Exhibits ‘A’ and ‘A1’, was not joined on the pleadings and in deeming Exhibits ‘A’ and ‘A1’, valid. Learned Senior Advocate of Nigeria, urged us to allow the appeal and set aside the decision of the lower court and the letters of administration granted to the respondents.

In reply, learned Counsel for the respondents, also in the respondent’s brief of argument referred to the relevant paragraphs in the pleadings and submitted that the issue of competence is vital and the facts upon which the defence would canvass same are very material and should be pleaded. He argued that the issue of the competence of the court to issue Exhibits ‘A’ and ‘A1’ did not arise from the pleadings and was not properly before the court. Citing a number of authorities, learned Counsel for the respondents, contended that it is well settled that the court will not deal with any issue which is not properly before it, therefore the lower court was right in refusing to entertain the issue regarding the validity of Exhibits ‘A’ and ‘A1’ granted to the respondents by the former Bendel State High Court. Learned Counsel for the respondents, further submitted that assuming that but without conceding that the court was bound to entertain the issues raised regarding Exhibits ‘A’ and ‘A1’ it was clear on the face of the said Exhibits that the late G.O. Ikengah, hailed from Aboh in Ndokwa Local Government Area of Bendel State and therefore subject to the court’s jurisdiction. He pointed on that Exhibits ‘A’ and ‘A1’ relate to the real and personal properly of late George Onyechi Ikengah and referred to section 3(1) of the Administration of Estate Law, Cap. 2, Volume 1 Laws of former Bendel State, 1976 applicable to Delta State, in support of his submission. It is the contention of the learned Counsel for the respondents that the learned trial Judge was right in entertaining the suit and the issue of the capacity of the respondents, the way he did. In conclusion, learned Counsel for the respondents urged us to dismiss the appeal.

At pages 179-180 of the record, the learned trial Judge, inter alia, held as follows-

“However, before examining and deciding the main issue, I propose to examine some of the legal issues raised by the learned Counsel for the 2nd defendant, G.R.I. Egonu Esq., SAN, in the course of his final address. Referring to Exhibits ‘A’ and ‘A1’, the Letters of Administration, Mr. Egonu contended that the former Bendel State High Court had no jurisdiction to issue the said exhibits. Learned Senior Advocate of Nigeria therefore argued that in so far as Exhibits ‘A’ and ‘A1’ were issued without jurisdiction, the said exhibits cannot properly ground the present action. Learned Counsel seemed to base his argument on sections 134-239 of the 1979 Constitution by which a High Court was established for each State of the Federation. It was the contention of Mr. Egonu that evidence on record shows that late George Onyechi Ikengah had his fixed place of abode at Onitsha in Anambra State, lived and died at Onitsha in Anambra State. It was therefore his contention that it is the High Court of Anambra State that has the jurisdiction to issue Exhibits ‘A’ and ‘A1’. Learned Counsel for the plaintiffs, Mr. B. C. Ogbuli, countered by observing that even though late George Onyechi Ikengah lived and died at Onitsha in Anambra State, he in fact hailed from Aboh in Ndokwa Local Govt. Area of Delta State. He further observed that the land in dispute is situated in Asaba within the territorial jurisdiction of the former Bendel State, now Delta State of Nigeria. There can hardly be any doubt that the issue raised by the learned Senior Advocate of Nigeria is of considerable legal and constitutional importance. My only reservation relates to the question as to whether or not he can properly raise such an important legal issue the way he raised it and at the stage he raised it. It seems to me to be trite that civil cases are decided on issues properly raised on the pleadings. And the basic essence of pleadings is to avoid taking your opponent by surprise. Going carefully through the pleadings, I am unable to find where the competence of the former Bendel State High Court to issue Exhibits ‘A’ and ‘A1’ has been raised. In my humble view therefore, this court cannot properly entertain this important issue raised for the first time during counsel’s final address. The result therefore is that Exhibits ‘A’ and ‘A1’ shall be and are hereby deemed to be validly issued by the former Bendel State High Court of Justice. I further hold as a consequence that Exhibits ‘A’ and ‘A1’ confer power, interest and rights on the plaintiffs to entitle them to sue on the said Exhibits ‘A’ and ‘A1’. The Senior Advocate of Nigeria submitted in the alternative that Exhibits ‘A’ and ‘A1’ do not cover the land in dispute in the sense that the land in dispute is not specifically set out or indicated in Exhibit ‘A’. If one looks at Exhibit ‘A’, one will readily agree that the land in dispute or any particular land for that matter is not indicated or spelt out therein. The only important thing one finds on Exhibit that it relates to the real and personal property of late George Onyechi Ikengah”.

It is pertinent to reproduce paragraphs 1 and 2 of the amended statement of claim and paragraphs 2, 3 and 12 of the further amended statement of defence upon which the controversy on the issue of the validity of Exhibits ‘A’ and ‘A1’ appears to have been centered.

The respondents in their further amended statement of claim contained at page 4 of record pleaded as follows;-

“1. The plaintiffs are the administrators and administratrix of the estate of George Onyechi Ikengah, late of Aboh in Ndokwa Local Government Area of Bendel State of Nigeria who died at Onitsha on 4/11/76. The first plaintiff is the son, and the second plaintiff the widow of late George Onyechi Ikengah. Letters of Administration (without will) of the estate of late George Onyechi Ikengah was granted to the plaintiffs on 7/11/79.

2. The plaintiffs sue the defendants as administrators of the estate of George Onyechi Ikengah. Both defendants live at Asaba and carry on their business thereat.

The appellant denied paragraph 1 of the further amended statement of claim and further pleaded as follows:-

“2. Paragraphs 2 and 3 of the further amended statement of claim are admitted.

3. The 2nd defendant vehemently denies paragraphs 1, 7, 9, 10, 11, 12 and 15 of the further amended statement of claim and puts the plaintiffs to the strictest proof of every material allegation of fact therein contained.
4. The plaintiff’s action is completely malicious, vexatious and an abuse of the process of the Court. The plaintiffs have no interest, rights or power over the land in dispute”.

Order 13 rule 13 of the High Court (Civil Procedure) Rules of the defunct Bendel State of Nigeria, 1976, applicable to Delta State of Nigeria, reads:-

“13 (13) The defence must allege any fact not stated in the statement of claim which the defendant relies in defence, as establishing, for instance, fraud on the part of the plaintiff, or showing that the plaintiffs right to recover or any relief capable of being granted on the petition, has not yet accrued or is released or barred or otherwise gone”.

A defendant will not be entitled to rely upon a defence which is based upon fact not stated in his statement of defence, unless he alleges such fact or facts specifically in his pleading by way of special defence. Ibrahim Khalif Yassin v. Barclays Bank, D.C.O. (1968) NMLR 380; B.O. Famuyiwa v. Folawiya and Another (1972) 1 All NLR (pt.2) 11, for the other party is entitled to know what case he is coming to court to meet.

The averments of the respondents in paragraphs 1 and 2 of their further amended statement of claim is an essential and material one in the circumstances of this case and in my respectful view required a specific traverse. The need for specific traverse in a situation such as this was emphasised and explained by my learned brother Salami, JCA. in Olaogun Ent. Ltd. v. S.J. & M (1992) 4 NWLR (Pt.235) 361 at 380-381 where he said:

“The purpose of traverse in a statement of defence is to contradict an assertion of fact in the statement of claim, as a result it must not be vague, evasive or general in respect of essential and material allegations such a general denial ought not be adopted, essential allegations should be specifically traverse; per Lord Denning M. R. in Wallersteiner v. Moir (1974) 1 WLR 1 991, at 1002. A refusal to admit must be denied explicitly and clearly”.

It is interesting to note that the learned Senior Advocate of Nigeria, in the appellant’s brief at page 6 recognised the fact that the issue of competency to institute an action is an essential or indeed a vital factor but fail to plead the fact to challenge or contradict the respondents pleadings or evidence. In fact Exhibits ‘A’ and ‘A1’ were tendered and admitted without any objection by the appellant. Since the appellant at page 5 of his brief accepted that Exhibit ‘A’ was evidence by which respondent sought to prove their claim, his complaint that the respondents did not state the High Court which granted the letter of administration is not an issue which requires further explanation as the respondents are not by law required to plead evidence.

I therefore agree with learned trial Judge, relying on the authorities cited for refusing to entertain the issue of the validity of Exhibits ‘A’ and ‘A1’ which was only raised at address stage. It follows therefore that issues were not joined on the issue of validity of Exhibits ‘A’ and ‘A1’ and the capacity of the respondents to institute the action.

Section 3 of the Administration of Estate Law, of Bendel State, Cap 2, Laws of Bendel State of Nigeria, 1976 reads:

“3. (1) Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this law chattels real devolved on the personal representative from time to time of a deceased person.

(2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.

(3) The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate”.

The provisions of the Administration of Estates of Lagos State, Law of Lagos State, is in pari materia with the provisions of the Administration of Estates of Bendel Cap 2, Laws of Bendel State, 1976 and this court interpreted the provisions of the administration of Estates of Lagos, 1972 in the case of Mrs O. O. Johnson & Ors v. Abudu Ogunbi and Ors. (1980) 4 CA, this court per p. Nnaemeka – Agu, JCA. at page 277-229, where he said,

“I am also of the opinion that Chief Williams was right when he submitted that the real estates of the deceased, Dr. Johnson, were, by operation of law, vested in his personal representatives. For it is provided in section 1(1), (2) and (3) of the Administration of Estates Law of Lagos State, 1972, as follows:-

“3. (1) Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Law chattels real devolved on the personal representative from time to time of a deceased person.

(2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.

(3) The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate”.

So as the real estate is vested in them by law it is immaterial whether or not the particular letters of administration mentions it expressly, as the argument of counsel for the respondents and, indeed the conclusion of the learned Judge, appeared to postulate. Also the inference implicit in the conclusion of the learned Judge that he had to disbelieve that Dr. Johnson owned or was possessed of the property in dispute because if he did it would have been included in the properties listed in the letters of administration, Exh. ‘A’, either initially or subsequently, is untenable”.

Relying on the decision of Johnson (supra), having regard to the provision of Section 3 of the Administration of Estates of Bendel, 1976, I hold that the respondents as personal representatives of late George Onyechi Ikengah, have capacity to institute an action in respect of the real estate to which the deceased in this case is entitled by the operation of law even where letters of administration have not been obtained.

Assuming the letters of administration are invalid, I believe they are not, the suit cannot merely be defeated for that reason alone as the law has cured the situation as rightly argued in my view by the learned counsel for the respondents.

It should be noted that in this case the property in dispute is within the jurisdiction of the former Bendel State which granted the letter of administration. In the case of Salubi