Daniel Igwe Uche Vs Jonah Eke & Ors (1990)

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 The plaintiff at the trial court was the appellant at the Court of Appeal as he is in this court. He and the defendants hail from Amaufuru in Aba Local Government. According to the plaintiff in his statement of claim, he entered into a registered lease (Exhibit A) of 20.31 acre land with Josiah Ohiara and Simon Ekpen on 3rd of May, 1960.

He acquired this lease with one Owo Ajonkwu Awele who died soon after the alleged lease was executed and he (plaintiff) later acquired the portion of Owo Ajonkwu Awele and had it registered, (Exhibit B). Plaintiff claimed he went into possession immediately and proceeded to plot the land into building plots with roads and that he made a plan of the set-up by commissioning a land surveyor for it.

He pleaded the plan containing, according to him 145 plots whose sketch or survey he was going to found upon at the trial. After plotting the land he sold some plots to various individuals who proceeded to put up buildings on them and that all the plots were identified by blocks and numbers. The unsold plots he claimed to farm by himself and the members of his family.

About 1981, to his surprise, without his leave, licence or consent, the first defendant broke and entered the vacant undeveloped portion of the land in dispute, which he claimed is called “Konkom Ukangwa,” at his block 5 No. 7 verged red in the survey plan, Exhibit C. Later in 1984 the defendants broke and entered the disputed land at block 5 No. 11, and that he reported to police because he was also attacked, but the Police did nothing.

Upon all these averments the plaintiff claimed jointly and severally against the defendants: “(a) N1,000.00 damages for trespass on the said plaintiff’s land. (b) Perpetual injunction restraining the defendants, their agents, servants, or privies from interfering with the plaintiff’s right in the said land. (c) A declaration that the plaintiff is the rightful person entitled to the possession of Statutory Certificate (sic) of Occupancy over the land in dispute.” In the statement of defence, the defendants denied knowledge of any land by name “Konkom Ukangwa.” They averred that when Timothy Ekpem was the head of the family of Umuikeosiama, to which the defendants belong in Amaufuru village, Josiah Ohiara, Simon Ekpem and one other person attempted to alienate their land called “Egbelu Ajulo” and the attempt was stalled because Timothy Ekpem sued together with other principal members of the family in 1958 at the Native Court in suit No. 834/58 (Exhibits D and E).

The defendants were Josiah Ohiara, Simon Ekpem and one other. Timothy Ekpem was the father of Sunday Ekpem, the 3rd defendant. The plaintiff’s claim to possession through the acts of plotting and alienating were denied; rather the defendants claim they have always been in possession of the land in dispute. It was in 1984 when the 3rd defendant was constructing a wall fence on the land, the plaintiff and some persons he believed were thugs attacked him and demolished the wall whereupon he was taken to court and convicted.

The interesting aspect of this case is that the plaintiff in his evidence in court never tendered the alleged plan of how he divided the land into plots with numbered blocks. He never called any of the persons he claimed to have alienated portions of the land to. Exhibits A and B on which he based his right to possession are clearly shown to have been executed and assigned to him by two persons who were not heads of the family that had title to the land.

The plaintiff never even pleaded the root of title of his alleged assignors and of course never offered evidence as to this. The trial Judge, Johnson, J., in a very well-considered judgment never found any merit in the plaintiff’s claims and he dismissed the suit in its entirety. This led to appeal to the Court of Appeal. It must however be pointed out that Exhibits D and E, the proceedings of the Native Court that culminated in the judgment in 1960 had nothing to do with the land in dispute on their surface, and supposing it had, it had nothing to do with the plaintiff.

It was a family dispute having nothing to do with the plaintiff. The root of the title of the vendors of Exhibit A and Exhibit B are not there. The vendors of Exhibit A were never the heads or even principal members of the defendants’ family. The alleged vendors were members of Umuike-Osiawa family and had no authority to convey or assign any land. The pleading and evidence led by the defendants were very clear that they not only had title but also possession of the land, “Egbelu Azulo” which the plaintiff wished to call “Konkom Ukangwa”

The Court of Appeal, after hearing the parties, found no reason to interfere with the clear findings of fact by the trial court. It was clear, the Court of Appeal held, that Exhibit A, as well as Exhibit B linked with it, was a document that was a nullity as it was executed without the consent of the head or principal members of the defendants’ family, Umuike-Osiama.

That is where the case of the plaintiff completely collapsed. There was no earthly reason why the Court of Appeal should proceed further as nullity of Exhibit A knocked the bottom off the plaintiff’s other claims on the land. In this court, the plaintiff as appellant, formulated the following issues for consideration: “(1) Whether the learned Justices of the Court of Appeal were not in error when they held that the deed of conveyance, Exhibit A, was void despite the fact that they had come to the conclusion that the District Officer’s Court of Appeal judgment, Exhibit E, had rendered nugatory the judgment of the Native Court, Exhibit D, in suit No. 834/58 in which it had been decreed that the land in question belonged to the family of the 3rd respondent, the very foundation upon which the respondents built their defence.

(2) Whether the learned Justices of the Court of Appeal did not err in law when after holding that the vendors in Exhibit A had not the capacity to sell the land and they thereupon went on to conclude that it was no longer important to consider any other issues formulated for determination in the appeal. (3) Whether the learned trial Judge and the learned Justice of Appeal who wrote the lead judgment concurred in by the other Justices did not totally misconceive the case put before them by the parties and thereby came to a wrong decision. (4) Whether the learned Justices of the Court of Appeal did not misdirect themselves when they dismissed the appeal having regard to the weight of evidence before the trial court.” I have dealt with the first issue as well as the second issue. I will however point out what has been the golden rule of civil trials.

A party who wishes to succeed in his claim must not only plead but also if there are averments not admitted by his adversary offer evidence to support his pleadings and at no stage will evidence be received of unpleaded facts. (See Ezewani v. Onwordi (1986)4 NWLR (Pt.33) 27; Sodipo v. Lemminkainen O. Y. (1985) 2 NWLR (Pt.8) 547; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413 Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1, all explaining the effect of pleadings.) The plaintiff, contrary to his posture in his brief actually was claiming entitlement to right of occupancy as owner, not possession.

This is clear in his statement of claim as to what the orders he would like the trial court to make should he be victorious. The plaintiff never ventured in his pleadings to reveal the title or root of title of his vendors. To baldly state that the land was conveyed or assigned by the vendors without stating their root of title is not complete pleadings in our land holding system except it is a grant by the government or land acquired by government.

Any grant of land whether by private treaty or by government right of occupancy, evidenced by a certificate of occupancy will be mere piece of paper not worth anything if the root of title to make the conveyance is not vested in the vendor. If this is not so, all a person has to do is to go to the land office of the government and obtain aright of occupancy in respect of land of a family who may not know even that their land has been given to a complete stranger. See Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745. I find the Court of Appeal appreciated fully the matter before them and it is not right to submit as the appellant has done that the learned Justices misconceived the issue before them, an allegation applicable to the appellant whose case was clearly not proved at the trial court. I cannot see within the four corners of the entire proceedings where the Court of Appeal misdirected itself. In sum total, this appeal is based on attempt to reverse the concurrent findings of fact by the two lower courts.

I find no substance in this appeal to justify interference with those findings based entirely on facts as found by the trial court and upheld, rightly so, by the Court of Appeal: In Re: Mogaji (1986) 1 NWLR (Pt.19) 759; Kimdey v. Military Governor, Gongola (1988) 2 NWLR (Pt.77) 445; Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101. For the foregoing reasons I find no merit in this appeal and I hereby dismiss it with N 10,000.00 costs to the defendants/respondents.

Other Citation: (1990) LCN/2422(SC)