Chief (Mrs) Ekanem Henry Bassey V. Aye James Robertson (1998)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
This is an appeal against the decision of the Cross River State High Court of Justice, sitting at Calabar, granting in favour of the plaintiff a declaration of title to a parcel of land situate at Ikot Ansa. Calabar awarding damages of N100,000 for trespass and making an order of perpetual injunction restraining the defendant, her servants and agents from further acts of trespass.
The defendant was dissatisfied with the judgment and appealed to this court on six grounds of appeal. The grounds of appeal are set out immediately hereunder-
“(1) Error in law
The learned trial Judge erred in law when he completely failed to identify the real issue in controversy in this case, namely whether the defendant was a daughter of the original grantee, James Robertson, and therefore entitled by inheritance to the land in dispute as joint owner with the plaintiff.
Particulars of error
(a) It had been acknowledged in the pleadings and evidence that the land was acquired by James Robertson the father of the plaintiff and defendant.
(b) There was no evidence that James Robertson had completely divested himself of the land in favour of the plaintiff’s mother either by deed or as grant under native law and custom.
(c) The extent of the land purportedly given to the plaintiffs mother out of the larger portion acquired by James Robertson was not given in evidence.
(2) Misdirection
The learned trial Judge misdirected himself in law when he quoted and relied on the purported testimony of the plaintiff viz: ‘I know the land in dispute … I am the owner. It was acquired by my mother to farm on whereas it was never the case of the plaintiff that it was his mother who acquired the land and this misdirection has led to substantial miscarriage of justice.
Particulars of misdirection
(a) Both in his pleadings and evidence the plaintiff did not say that it was his mother who acquired the land.
(b) By relying on that quoted evidence the court was misled to believe that the land became vested in the plaintiff as an inheritance from his mother.
(c) There was evidence from the original grantors, Ikot Ansah. that the land was granted to James Robertson who they know as the father of the plaintiff and defendant.
(3) Error in law
The learned trial Judge erred in law when he gave judgment to the plaintiff for a declaration of title, damages for trespass and injunction when the plaintiff did not plead nor give evidence of the boundaries of the land over which a declaration was sought and over which an injunction might encompass.
Particulars of error
(a) The mere finding by the Judge that both parties know the boundaries of the land in dispute was not useful because the court itself must base the declaration and injunction on precise boundaries.
(b) The boundaries of the land were properly made an issue when the defendant countered the plaintiffs plan with another plan both plans bearing different features and divergent survey stones. –
(c) Since the land in dispute was pleaded by the plaintiff to be only part of a larger portion of land the boundaries of the land in dispute ought to have been c]early established with reference to the larger piece of land.
(4) Error in law
The learned trial Judge erred in law when he made a declaration of title and to a right of occupancy in favour of the plaintiff when the radical title and reversionary interest of Ikot Ansa people had not been revoked and when James Robertson’s grant to the plaintiffs mother (if at all) of the unidentified small portion was restricted to mere occupation and cultivation.
Particulars of error
(a) A certificate of occupancy cannot be issued to a tenant who continues to alone tenancy to his landlord and when the title of the landlord has not been revoked.
(b) The grant to the plaintiffs mother by the plaintiff/defendant’s father James Robertson (if at all) was restrictive as pleaded by the plaintiff himself.
(5) Error of error
The learned trial Judge erred in law when he awarded N100,000.00 damages to the plaintiff when the plaintiff did not plead nor lead evidence of the quantum of damages; did not establish the number.
type and nature of the houses or the number, type and nature of the crops allegedly destroyed.
  (6) That the judgment of the learned trial Judge is against the weight of evidence.”
Although ground I of the grounds of appeal per se, without the particulars, is a good ground and therefore competent, the particulars or error given along with it do not arise from the said ground of appeal. The issue arising from the ground of appeal is whether the defendant was a daughter of the original owner of the land and was, therefore, entitled to inherit his estate. This issue has nothing to do with acquisition and extent of the land in dispute which are the basis of the particulars.
These particulars of error may be pertinent to some other grounds of appeal but they are clearly irrelevant to the present ground 1 of the grounds of appeal which deals with inheritance and is already set out. Since the particulars do not belong to that ground of appeal they are hereby struck out by me. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Honika Sawmill Nig. Ltd. v. M. Okogie Hoff (1994) 2 NWLR (Pt. 326) 252, 262 and Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372.In accordance with the provisions of Order 6 rules 2, 4 and 5 of the Court of Appeal Rules, parties exchanged briefs of argument. In appellant’s brief, these four issues were identified as calling for determination –
“1. Whether it was not an important issue that the fact whether or not the defendant was a daughter of James Robertson (deceased) and so entitled to share by inheritance in his estate and whether that fact
was not duly established by the preponderance of evidence in this case.
- Whether it was proper for the learned trial Judge to quote and rely on the purported evidence by the plaintiff that it was the plaintiffs mother who acquired the land in dispute (as against the evidence that the land was acquired by the plaintiff’s father who was also the defendant’s father).
- Whether it was proper for the learned trial Judge to enter judgment for the plaintiff for declaration of title, damages for trespass and an injunction on the grounds merely that the land in dispute was known to both parties when the plaintiff neither pleaded nor gave evidence of the boundaries of the land in dispute particularly as the plaintiff had pleaded that the land in dispute formed of a larger parcel of land acquired by his rather.
- Whether the learned trial Judge was right when he entered judgment in favour of the plaintiff for a declaration of title or right to the statutory right of occupancy when it was admitted in evidence that
the plaintiffs/defendant’s father was a mere grantee of Ikot Ansa land and that the people of Ikot Ansa were still acknowledged as the overlords.
- Whether it was proper for the learned trial Judge to award N100,000.00 damages for trespass in favour of the plaintiff without giving particulars and heads of such damages and in the absence of evidence as to the number, type, nature and costs of the houses, crops and economic trees allegedly destroyed or damaged.
- Whether the judgment of the learned trial Judge was not against weight of evidence tendered in the case.”
On the other hand the respondent formulated four issues on the basis of the grounds of appeal filed along with the appellant’s notice of appeal. They read as follows-
“(a) Whether or not the learned trial Judge was right in granting a declaration that the plaintiff is the person entitled to be issued with the statutory right of occupancy in respect of the land in dispute.
(b) Whether or not the learned trial Judge was right in awarding the sum of N100,000 as damages for trespass to the plaintiff.
(c) Whether or not the learned trial Judge was right in making an order for injunction restraining the defendant from committing further trespass on the plaintiffs land.
(d) Whether or not the learned trial Judge was right in refusing to make an order restraining the defendant, her servants and/or agents from further posing herself as the daughter of James Robertson.”
At the hearing of the appeal, learned counsel for defendant (hereinafter referred to as the appellant) adopted and placed reliance on the appellant’s and appellant’s reply briefs. He did not elaborate further on either brief. Neither the learned counsel for plaintiff who is incidentally the respondent herein nor was the respondent present in court on the day fixed for hearing. The court, therefore, deemed the appeal argued, after ascertaining that there was proof of service on learned counsel for respondent, under Order 6 rule 5 of the Court of Appeal Rules, Cap. 62 of the Laws of Federation of Nigeria, 1990.
Learned counsel for appellant, in the appellant’s reply brief took objection to the respondent’s formulation of issues. The objection against the formulations particularly issues 3 and 4 is couched as follows –
“In his brief, the respondent has purported to canvass four issues as arising for determination. While issues Nos. 1 and 2 so formulated appear to have some relevance to the grounds of appeal, issues Nos. 3 and 4 have no reference or relevance to the grounds of appeal. Accordingly, we urge this Hon. court to strike out issues Nos. 3 and 4 canvassed by the respondent as being irrelevant and therefore incompetent.”
Clearly issues 3 and 4 framed by the respondent do not arise from any or the grounds of appeal filed by the present appellant. The respondent, from the record of appeal, has not cross-appealed. He can there fort: not formulate issue or issues other than those arising from the six grounds of appeal filed by the appellant. The two issues particularly issue 4 have no bearing to any of the six grounds of appeal.
The present appellant could not have by any stretch of imagination filed a ground giving rise to respondent’s issue 4. That formulation creates the impression that the appellant is appealing against or criticising an order made in her favour. The appellant, nowhere in her six grounds of appeal, did seek to attack any issue that has been resolved in her favour. That formulation like the formulation in issue 3 comes from the fertile imagination of the framer of these two issues and they have no power to conjure issues, It is settled that each party to an appeal is hw to frame or identify his or her own issues for determination such issues shall arise from or be related to the grounds of appeal filed in the appeal. It is trite law that any issue raised or canvassed which does not stem from one or more of the grounds of appeal filed in the appeal is incompetence and should be discountenanced. See Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 NWLR (pt.199) 501; Madagawa v. State (1988) 5 NWLR (pt.92) 60 and African Petroleum Limited v. Owodunni (1991) 8 NWLR (pt.210) 391 and B.P. West African Ltd v. Allen (1962) 1 All NLR 605, (1962) 2 SCNLR 388. The respondent’s two formulations, issues 3 and 4. are liable to striking out and are consequently struckout. The argument
canvassed in respect of these issues in the respondent’s brief are equally incompetent and irrelevant and are expunged from the respondent’s brier of argument.
Before embarking on the resolution of the issues or issues in controversy in the instant appeal, I think, it is apt, at this stage, to state the facts of the case, however, briefly. The learned trial Judge awarded the respondent in the present appeal against the appellant a declaration of title to a parcel or land situate at Ikot Ansa, Calabar, N100.000.00 damages for trespass and perpetual injunction restraining the appellant and his servants from further acts of trespass. It is agreed by all the parties that the land was originally acquired by one James Robertson from the Ikot Ansa community about 60 years before bringing the action, It is the claim of the plaintiff that his father acquired the land for his mother to farm on and occupy and that on the death of his father and mother he as the only surviving child of the couple was entitled solely to inherit the property, The appellant, to the contrary, contended that the respondent and herself were children of the same father and are, therefore, jointly entitled by inheritance to share in their father’s estate which include the land in dispute. The learned trial Judge resolved this controversy in favour of the respondent on the ground of respondent’s effective occupation of the property for a long time.
It is necessary in determining this appeal to first consider appellant’s issues 1 and 2 which are fairly simple but interesting. In these issues, learned counsel for appellant is questioning the competence of the learned trial Judge to rely on a piece of evidence which was not properly before him in preference for the lawfully adduced evidence and also his failure to make specific findings of fact.
The snag with this appeal is the decision of the learned counsel for appellant to, in the appellant’s brief or argument, argue issues 1, 2 and 6 together when the consideration for the respective issues are different. The approach adopted by learned counsel makes the determination of the three issues not only cumbersome but also complex or difficult. The complexity arose from having to sieve submission or argument in respect of issues 1 and 2 which have to be garnered from the argument in support of the three issues.
The substance of the submission of the learned counsel for appellant is that parties joined issues on membership of the appellant of James Robertson family but learned trial Judge inadvertently or otherwise neglected to make a finding thereupon, I think learned trial Judge has a duty to make a finding on whether or not appellant is a member of James Robertson’s family. Not only did he have a duty to resolve the issues, it is compelling, in view of the nature or respondent’s claim and the state of pleadings. One of the respondent’s reliefs is for an order”(d) an injunction restraining the defendant, her servant and/or agents from further passing herself as the daughter of James Robertson (deceased)”, In this connection the respondent pleaded inter alia that he is the only child of the late James Robertson of Creek Town, who married only one wife, the plaintiffs mother and he is the only child of that marriage. He averred further that he was not aware that his father had another child out of wedlock and that his father did not acknowledge paternity of any other child before his death and that he was the only child to he crossed over the coffin of his late father on his death in accordance with Efik native law and custom stipulating that all the infant children of the deceased should he crossed
over the coffin of the deceased before burial. He added that he did not see the defendant or her mother at the funeral of his father.
On the other hand, the appellant also averred that she was taken across the coffin of her father before his burial. The appellant further aver that she and the respondent grew up together as brother and sister at the family house in Creek Town. She averred further that plaintiff’s mother was not a wife but a servant to their further. In paragraph 20 of the statement of defence, the appellant stated thus
“20. Paragraphs 26, 27 and 28 of the statement of claim are stupid, childish and reckless. Children all over the world do not prove their paternity by production of school fees receipts and defendant challenges the plaintiff to produce his receipts. At all times the defendant’s father, late James Robertson, showed great love and affection for the defendant as his only daughter. These paragraphs are accordingly denied.” (Italics mine)
On the issue so joined, the parties led evidence in support of their respective averments in the pleading. On the part of the appellant, evidence was adduced that she and the respondent are paternal brother and sister and that they were begotten by James Robertson of Creek Town, Calabar. This is against the respondent’s case that he is the only child of his father and that his father had no other woman outside his mother. The learned counsel for respondent did not make any submission to this issue either in the respondent’s brief or orally in court. The respondent maintained studied silence on the matter.
Notwithstanding the silence of the learned counsel for respondent, clearly this is an issue on which the learned trial Judge ought to have reviewed the evidence produced by the parties on this particular issue and ascribe probative value to the evidence of the respective witnesses who testified in that regard. But the learned trial Judge avoided the resolution of this fundamental issue. The resolution of the issue one way or the other probably holds the key to successful determination of the suit. Although the learned trial Judge did not resolve this issue but it continued to hunt him throughout the judgment. At page 130 of record he loudly thought-
” …the plaintiff has a care-taker or servant on the land in dispute who took care of the property. It was not the defendant who put the caretaker to look after the property. It was the plaintiff’s mother. The
defendant cannot have two mothers.” (Italics mine)
The learned trial Judge later in his judgment at page 132 further disclose the state of his mind when he said –
“The defendant has maintained in her evidence that the land is partly owned by both herself and the plaintiff. The defendant, from the facts and circumstances of this case, is not a co-owner of the property. Neither can she make herself a co-owner unilaterally and without the express grant, consent and permission of the plaintiff.
This must be so because she consulted the plaintiff on several issues except when she, in her avarice, without scrupples, issued notices to quit to the tenants, surveyed the property, partitioned it, chose one and kept the other to the plaintiff, changed her mind and reallocated the surveyed portion of the properly and chose the larger for herself. All to the utter embarrassment and resentment of the care-taker and the plaintiff. It was the defendant who unilaterally made herself a co-owner certainly nor the plaintiff; who was in far off England.”
I do not think that the appellant was unilaterally making herself a co-owner without the express grant, consent or permission of the respondent. Neither is she seeking to be born by two mothers. In any case, it is biologically not possible for one to be born by two mothers. After all we are no longer in the age of miracle!
The confusion of the learned trial Judge stemmed from his misconception of the case or at least the appellant” s case. Her case is that the parcel of land in dispute was acquired by the respondent’s father, who, according to her, was her own father too. Now that their father was dead, the property devolved on both of them jointly as the surviving children of their deceased father who probably died intestate. It is, therefore, pertinent to decide the paternity of the appellant who joined issue with the respondent on that point. This is an important issue raised on which a trial court is required to make a finding but it failed to do so. This default or omission of the learned trial Judge appears to be fatal to the decision.
The learned trial Judge apparently took the line of least resistance by finding that the property was that of the respondent’s mother which devolved on him absolutely free of any encumbrance. It is not impossible he does not want to injure feelings or cause unnecessary embarrassment where there is another way of resolving the dispute. He thought that there might be several ways of killing a fowl and thought out the less painful procedure. But as judges we have a duty to allow the rule of law to flourish. If in determination of a suit application of the rule of procedure would cause pains it seems to me that a judge had no other option than to apply the law firmly and fairly.
Be that as it may the approach of the learned trial Judge was predicated upon a respondent’s piece of evidence which the appellant in her brief of argument strenuously contests its existence. The relevant portion of the judgment reads thus:
“The plaintiff in his evidence amongst other things stated as follows –
“I know the land in dispute in this action. It is situate at No. 87C Odukpani Road, Ikot Ansa, Calabar. I am now the owner. It was acquired by my mother to farm my mother went to live there from Eyamba Street, I was born on the land. My mother went there even before I was born’.” (Italics mine)
The appellant ignored the existence of the piece of evidence already set out in this judgment and submitted, in the appellant’s brief, thus-
“We submit that the Judge quoted and wrongly relied on the purported evidence of the plaintiff to the effect that –
“I am that owner, it was acquired by mother to farm on…’ We submit this is not the plaintiff’s case because what the plaintiff stated was ‘The land was acquired by my father for my mother to live on …’ Even lithe plaintiff had said that the land was acquired by his mother the court had a legal duty to reject it because the evidence rendered (if at all) was inconsistent with pleadings. ‘ ”
(Italics not mine)
The piece of evidence which the appellant’s counsel look cognisance of is at page 78 of the record of proceedings which is set out immediately hereunder-
The land was acquired by my father for my mother to live on. I was born on the land in 1928. The land is popularly known as 87c Odukpani Road, Ikot Ansa, Calabar.” (Italic mine)
The two pieces of evidence were adduced by the respondent in the course of his evidence-in-chief in the trial court. The contradiction in the pieces of evidence was never resolved by the learned trial Judge, on whom it was incumbent to resolve the apparent conflicts. The learned trial Judge had a duty to make a finding on whether he accepted the respondent’s evidence that he was the only surviving child of James Robertson or the defendant’s that the respondent and appellant were begotten by the same father, James Robertson. He also has to explain the apparent conflict in the respondent’s evidence on his title. The court ought to have taken cognisance of the respondent’s pieces of evidence on the acquisition of the property and resolve the conflict. The trial court did not do justice to itself by feigning ignorance of the second piece of evidence. The two versions may be reconcilable. The purchase by the respondent’s father court be for or on behalf of his wife, the mother of the respondent.
Inspite of this, there is substance in the submission of learned counsel for appellant, in the appellant’s brief, to the effect that the evidence relied upon by the learned trial Judge goes to no issue and should be ignored. See the cases of George v. Dominion Flower Mills (1963) 1 All NLR 71; (1963) 1 SCNLR 117; Dina v. New Nigerian Newspapers Ltd (1986) 2 NWLR (Pt. 22) 353.
The learned trial Judge, however, made use of the piece of evidence that was not pleaded. The further submission of the learned counsel for appellant that if there is a variance between the pleadings and evidence the action should fail does not avail him. The respondent had another piece of evidence on record, which the learned trial Judge was competent to consider and base his judgment thereupon. It was open, on the record, to the learned trial Judge to ignore or expunge the piece of evidence which was not pleaded but was inadvertently let into the record, and proceeded on the basis of the lawful evidence. In other words, learned trial Judge, notwithstanding the admission of inadmissible evidence, ought to have gone ahead to consider the respondent’s claim on the strength of the legal evidence. Not only did he fail to ascribe probative value to the piece of evidence that was pleaded, learned trial Judge did not consider the respondent’s case in the light of that piece of evidence. It is difficult, in the circumstance, to hold that the decision of the learned trial Judge is not perverse.
In the circumstance, the appeal succeeds and it is allowed. The decision of the learned trial Judge, Effanga. J. (as he then was) and of the blessed memory is set aside.
I am presently to decide the order to make, whether to dismiss the respondent’s claim or remit the matter to the lower court to be re-tried. I have already found that the decision of the learned trial Judge is perverse. The question now is whether this case can be sent back for trial de novo. Where there is no outstanding issue to be decided there would be no order for trial de novo: Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325, 347. An order for trial de novo will not be made if the appellate court can in exercise of its jurisdiction do justice in the matter and bring litigation to an end: Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703.
An order of trial de novo implies that one of the parties, usually the plaintiff, is being offered a second chance to relitigate the action or have a second bite at the cherry. In making such an order, the Court of Appeal should ensure that the other party is not wronged in a manner that would amount to miscarriage of justice. A trial de novo is inappropriate where the plaintiff’s case has totally failed or where there is no irregularity of substantial nature apparent from the face of the record: Dantubu v. Adene (1987) 4 NWLR (Pt. 65) 314: Solomon v. Mogaji (1982) 11SC 1. 24: Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129; Ayoola v. Adebayo (1969) 1All NLR 159; Moguji v. Odofin (1978) 4 S.C. 91; Adeyemi v. Bamidele (1968) 1 All NLR 31, 36 and R.G. Okuwobi v. Jimoh Ishola (1973) 3 SC 43: (1973) 1 All NLR (Pt. 1) 16 and (1973) NSCC 168, 170, the Supreme Court per Elias C.J.N. said –
“Learned counsel for the appellant next argued ground 6 by submitting that the Acting Chief Justice should have remitted the case to the lower court for a retrial or to make a specific finding of fact as to whether or not he, the learned Chief Magistrate, accepted the evidence of either the plaintiff or the defendant as to the amount actually paid originally and what amount, if any, was still outstanding. We think that there is force in this submission, as the Acting Chief Justice himself found as follows:-
‘The learned Chief magistrate made no findings of facts as to which of the two versions he had accepted. All that he did in his judgment was to set out the two versions he had accepted ….’And we think he was again in error when, later on his judgment, he said:
‘I agree that the Chief Magistrate did not resolve the conflicts but it had not been shown that failure on his part would have affected his conclusions.’”
(Italics mine)
In the circumstance, the case is returned to the lower court to trial de novo. The costs or this appeal is assessed at N2000.00. The costs in the trial court, which is also set aside, should abide the trial de novo.
Other Citations: (1998)LCN/0433(CA)
