Edward Egonu & Ors. V. Madam Eziamaka Egonu & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal raises the very important question of proof of sale of land and transfer of title to land by a father to a son under customary law in Onitsha. The question assumes greater importance and attracts more attention when the purchaser is the person on whom in the event of the father’s death, the father’s title to the land would devolve.

The appeal deals in the main, with a claim founded on a testamentary disposition of interest in land allegedly acquired by purchase under customary law by the eldest son of a prosperous man from his father in the early twenties, 1924 to be more exact. The parties were of Ibo origin whose personal law was Osomari customary law i.e. native law and custom although the land is situate in Onitsha and the parties lived and died on the land. The parties to the alleged sale are dead and the devisees, the plaintiffs/appellants herein, conscious of the devise and the need to assert their rights under the will which were being wantonly infringed by the respondents ad nauseam instituted an action by writ of summons filed in the High Court, Onitsha then in Onitsha Judicial Division of the High Court of Eastern Nigeria but now Onitsha Judicial Division of the High Court of Anambra State for, in terms appearing on the amended statement of claim:

“1. Declaration of title to the landed property now known and called 40, New Market Road, Onitsha, and more particularly delineated and verged pink in the plan No. PO/E.30/65.

2. 5 Pounds damages against the 1st and 2nd defendants for trespass on the said landed property.
3. Injunction restraining the 1st defendant her servants or agents from doing anything on the said landed property inconsistent with the plaintiffs’ ownership and possession thereof.
4. Injunction restraining the 2nd defendant, his servants or agents from erecting any building on the said landed property and or entering on the said landed property and or entering or remaining thereon or in anyway doing anything thereon inconsistent with the plaintiffs’ ownership and possession thereof.”

Pleadings were ordered, filed and served and the matter ultimately came up for trial before Oputa, J. (as he then was). After a protracted trial wherein the issues raised were vigorously contested and moves for amicable settlement out of court flopped, the learned trial Judge delivered a considered judgment, dismissing all the items of claim as unproved. Putting it more poignantly, the learned trial Judge in the concluding paragraphs of his judgment said:

“My impression is that the plaintiffs tried to build up a case round the will (Exhibit e). There was an attempt to reconstruct the facts starting from Exhibit 4 and the various acts of possession of their late father on the land in dispute. But reconstruction is one thing and proof of the facts and events reconstructed is an entirely different thing. In the absence of satisfactory proof of sale of the land in dispute to their father and predecessor-in-title and with the finding of the court on Osomari customary of inheritance, it cannot be said that the will Exhibit 4, transferred radical title to the land in dispute to the plaintiffs. I do not so find that is, if it is a question of fact as such rather than a conclusion of law to be drawn from the facts proved and those not proved in this case.

Having thus considered all the issues in dispute I arrive at the conclusion that the plaintiffs have not proved their case to the satisfaction of the court. I have no other option but to dismiss the plaintiffs’ case.”

Aggrieved by this decision, the plaintiffs/appellants lodged this appeal to this court on 7 grounds. At the hearing of this appeal, only grounds 2, 3b, 3c, 3d, 5a, 6a and ground 7 (the others having been abandoned) were argued and these grounds read as follows:

“2. That the judgment is against the weight of evidence.

Particulars

(1) That the learned trial Judge gave a wrong construction or interpretation to the evidence of the plaintiffs/appellants’ witness, Mr. Gregory Osuma, and in consequence thereof, the learned trial Judge wrongly disbelieved the evidence of the said witness.

(2) That it was wrong for the learned trial Judge to hold that because Mr. Gregory Osuma was the maternal uncle of the 1st and 3rd plaintiffs he could not be completely impartial and uninterested as nothing was established to make the learned trial Judge to hold the opinion and that that affected his mind in considering the evidence of Mr. Gregory Osuma.

(3) That the allegation of the defendants that they published a public warning in the Nigerian Spokesman was denied and yet the learned trial Judge accepted the defence evidence in toto without the said publication being tendered in evidence.

(4) That the question of the area occupied by one Nweke, a mechanic, on the land in dispute and the circumstances leading to his quitting from the land were contested at the trial and yet the learned trial Judge accepted the defence evidence in toto without the defence calling Nweke to testify on their behalf.

(5) That the allegation of the defendants that the 2nd defendant erected the mud building marked 5 on the plaintiff’s plan was vigorously denied by the plaintiffs and yet the learned trial Judge accepted the evidence of the defendants in toto without that allegation being duly established.

(6) That the evidence of the 1st defendant was mainly hear-say and part of the evidence was based on matters not pleaded. It was therefore wrong for the learned trial Judge to have accepted her evidence in toto and to rely on the same in coming to his decision.

(7) The defendants’ plea that the plaintiffs’ father paid all the outgoings in respect of the land in dispute as Head of the Egonu family was not established; and the defendants neither pleaded nor established by evidence that the various other acts of ownership and possession exercised by the plaintiffs’ father on the land in dispute was in his capacity as okpala. The learned trial Judge was therefore wrong to hold “that the various acts of possession undertaken by Victor Obiora Samuel Egonu were undertaken in his capacity as okpala.

(8) That the few acts of interference on the land in dispute by the 1st and 2nd defendants were promptly challenged by the plaintiffs and it was wrong for the learned trial Judge to hold that such acts were acts of common ownership on the part of 1st and 2nd defendants of the land in dispute.

3(b) The learned trial Judge misdirected himself both in law and in fact in holding that the only evidence about the sale of land to the plaintiffs’ father by Samuel Aniche Egonu was that of Mr.Gregory Osuma whereas there was other evidence in proof of that fact.

Particulars of Misdirection

(1) The learned trial Judge wrongfully disregarded the admission of the defendants in their pleadings and in evidence that Samuel Aniche Egonu sold land to the plaintiffs’ father.

(2) There was a declaration in the will of Victor Obiora, Samuel Egonu in proof of the sale.

(3) The numerous acts of possession of the plaintiffs’ father over the land in dispute including his erecting buildings all over the land to the knowledge of his own father and the control and management of the land by the executor and the executrix of his will and thereafter of the plaintiffs go in proof of the said sale.

(4) There was also the evidence of the 4th plaintiff in proof of the said sale.

3(c) That after wrongly rejecting the evidence of Mr. Gregory Osuma on the sale of the land verged yellow in Exhibit 1 to the plaintiffs’ father, the learned trial Judge held that “the net result is that the plaintiffs have failed to establish that there was a sale of the land in dispute to their father the predecessor-in-title”. Having so held the learned trial Judge has shut himself out from considering the other evidence adduced by the plaintiffs in proof of the said sale and that the later purported attempt in considering the other evidence on the question was futile and a foregone conclusion.

3(d) That the learned trial Judge failed to give a fair, full and proper consideration to the case of the plaintiffs.

5(a) That the native law and custom of any particular area is, unless judicially noticed, a matter of evidence. That there are no known decided cases on the native law and custom of Osomari on inheritance or on the position of an okpala. That it was wrong for the learned trial Judge to hold that there is anything common among the Ibos (which Osomari people of course do not admit to be) as regards the position of an okpala in the various Ibo towns, villages etc. as there are in fact no decided cases to support that view.”

6(a) That the learned trial Judge was wrong to have dismissed the plaintiffs’ case when he himself had held that the plaintiffs were at least co-owners of the land in dispute and when it was admitted in the defendants’ pleadings and testified to in evidence that the plaintiffs’ father to the knowledge of Samuel Aniche Egonu erected a number of buildings on the land in dispute.

7. That the costs awarded by the learned trial Judge against the plaintiffs/ appellants were wholly, arbitrary, punitive and manifestly excessive.”

At the commencement of the hearing, there was a spirited attempt by the 4th plaintiff/appellant to raise the issue of bias contained in ground 1 (a) (later struck out) which reads:

“That the learned trial Judge who himself formerly lived on the land in dispute as a tenant of the Executor and Executrix of the will of the late Victor Obiora Samuel Egonu was biased or most likely biased against the plaintiffs/appellants as is borne out by the learned trial Judge’s utterances and remarks in the course of the hearing of the suit and this affected his decision in the case.

Particulars

The utterances and remarks of the learned trial Judge complained against include:

“(i) Does the 4th plaintiff know that I lived on the land in dispute in the very bungalow where he now lives. I lived in the bungalow with Mr. Tunde Savage, Mr. Macaulay and one Madam Janet. The storey building in the premises was known as Perseverance Villa or Multum in Parvo.”

(ii) You will remember the passage in Julius Caesar, it ran thus:

“O masters, if I were disposed to stir your hearts and minds to mutiny and rage……. But here a parchment with the seal of Caesar. I found it in his closet; it is his will; let but the commons hear this testament which, pardon me, I do not mean to read ………. Unto their issue.

Plebeian

We’ll hear the will; read it, Mark Anthony

All

The will, the will; we will hear caesar’s will.

Anthony

Have patience, gentle friends; I must not read it. It is not meet you know how Caesar loved you ……For if you should, O; what would come of it

Caesar’s will was of course not read, it was for a purpose.”

(iii) “Mr. Agbu, will you be satisfied if I grant the plaintiffs’ declaration of title to the land in dispute but with an order that the 1st and 2nd defendants should continue to live on the land”

To this end, a motion was filed by the appellants and moved by the 4th plaintiff/appellant for an order

“admitting in evidence the affidavit sworn to by the 3rd plaintiff/appellant on 10th day of May, 1975 in support of grounds 1(a), 1(b) and 1(c)”

As the affidavit contained the particulars of allegation of bias stated in ground 1(a) above, the learned trial Judge, having been given the opportunity to do so by this court, filed a counter-affidavit denying the allegations in paragraphs 13 and 14 while contending in paragraph 16

“that before my trial of the case, I did not have fore-knowledge of the parties (except the 4th appellant) or the facts. My only connection with the case was the remote connection, that 30 years earlier, I lived for a couple of months in a bungalow in the premises.”

This point was further explained in paragraph 11 of his counter-affidavit which reads:

“That during the cross-examination of the 4th plaintiff/appellant who was called as 6th witness to the plaintiffs’ case, Mr. Agbu, solicitor for the defendants was belabouring a point namely: that 2nd defendant lived in the bungalow in the premises. Thereupon, I interjected that mere living in a premises is neither here nor there and noted that I too lived in the bungalow in the premises in dispute.”

On receipt of the counter-affidavit, the 4th plaintiff/appellant did not press his application for additional evidence any more and applied for leave to withdraw it. Without the facts deposed to in the affidavit, there was nothing on which ground 1(a), 1(b) and 1(c) could be argued. The ground was accordingly abandoned by counsel and struck out by this court.

It would appear that that was the ground on which the appellants had intended to rely most heavily in this appeal. However, the loss of this ground did not deter the appellants, and the 4th plaintiff/appellant, who argued the appeal and whose arguments were adopted by counsel for the other 3 plaintiffs/appellants, dealt with them as fully as circumstances of the case dictated.

Before proceeding to consider the submissions, a resume of the facts highlighted by the pleadings, the evidence led and the findings of the learned trial Judge appears to be desirable and will be of immense value.

It was common ground that the plaintiffs/appellants are the sons and heirs of the late Victor Obiora Samuel Egonu and that they are Osomari people.

It was also common ground that the late Victor Obiora Samuel Egonu was the eldest surviving son or okpala of the late Samuel Aniche Egonu of Osomari.

It was also common ground that the 3rd and 4th defendants are children of Michael Egonu who was one of the sons of late Samuel Aniche Egonu. It was also common ground that the 1st defendant/respondent was the mother of 2nd defendant/respondent and was married to Samuel Aniche Egonu in accordance with the Osomari native law and custom. More particularly, paragraphs 4, 5, 6, 7, 8, 9, 11, 12, 13, 16 and 19, of the Statement of Claim read:

“4. In 1924, the late Samuel Aniche Egonu sold to the plaintiffs’ father, the landed property verged yellow in the accompanying plan No. PO/E. 30/65.

5. The late Victor Obiora Samuel Egonu in exercise of his right of ownership over the land verged yellow in the plan No. PO/E./30/65 erected a number of buildings thereon, and these buildings included a storey building, a bungalow house and a bookshop. He also exercised maximum acts of ownership and possession over the said land.
6. After the death of Samuel Aniche Egonu, the plaintiffs’ father in accordance with the Osomari native law and custom allowed the wives of his late father including the 1st defendant and the mother of Job Okechukwu Chukwura (alias Egonu) to remain and live on the land verged yellow in the plan No. PO/E./30/65.
7. The 2nd defendant is living with his mother and John Okechukwu Chukwura (alias Egonu) from his birth lived with his mother until 1956 when he left. The mother of John Okechukwu Chukwura (alias Egonu) died in 1962; in 1964 John Okechukwu Chukwura (alias Egonu) came to Onitsha and the plaintiffs allowed him to lodge in the premises where his mother lived.
8. By his will made on the 8th day of February, 1936, the late Victor Obiora Samuel Egonu devised the land verged yellow in the plan No. PO/E.30/65 to the plaintiffs.
9. The late Victor Obiora Samuel Egonu died on the 21st August, 1937 and probate of his will was granted by the Supreme Court of Nigeria on the 15th day of May, 1938.
10. From the death of Victor Obiora Samuel Egonu, the plaintiffs have, through the executor and executrix of their father’s will, and by themselves exercised maximum acts of ownership and possession over the land devised to them by their father.
11. And in 1956, the plaintiffs in exercise of their rights of ownership over the land verged yellow in the plan No. PO/E.30/65 sold the portion verged green in the said portion verged yellow to one J. Obi.
12. The land now in dispute is the area verged PINK in the plan No. PO/E.30/65 and is now known as and called 40 New Market Road, Onitsha. The whole of the land verged yellow in the plan No. PO/E.30/65 was formerly known and called 46 New Market Road, Onitsha.
13. Despite the protests and warnings of the plaintiffs, the 1st and 2nd defendants dug and laid part of foundation of the building they are erecting on the land in dispute.
14. Since this action was brought the defendants have continued and threatened to continue with their acts of trespass on the land in dispute.”

A close study of the above pleadings must reveal to the discerning mind that the facts pleaded in paragraph 4 are in sharp conflict with the facts pleaded in paragraph 6 of the Statement of Claim. It appears to us that paragraph 2 of the Statement of Claim which reads “the said late Victor Obiora Samuel Egonu was the Okpala of the late Samuel Aniche Egonu of Osomari” is more in tune with paragraph 6 of the Statement of Claim than paragraph 4 of the Statement of Claim. If he were an owner by purchase and not as okpala of his late father, Victor Obiora Samuel Egonu would have no customary duty to allow his father’s widows to remain and live on the land in dispute.

However, the 1st and 2nd defendants/respondents together filed and delivered one Statement of Defence in reply which the 3rd and 4th defendants/respondents together filed and delivered a separate one though almost in identical wordings.

They traversed all the facts pleaded in claim of ownership and exclusive possession by the plaintiffs/appellants to the exclusion of the defendants/respondents. They denied the trespass alleged and pleaded lawful possession. The 2nd defendant assorted and claimed that he is a son of late Samuel Aniche Egonu born of lawful marriage under Osomari native law and custom. More importantly, the 1st and 2nd defendants pleaded in paragraph 4 of their Statement of Defence (and repeated by the 3rd and 4th defendants in paragraph 5 of their Statement of Defence) as follows:

“The 1st and 2nd defendants emphatically deny paragraph 4 of the Statement of Claim and will put the plaintiffs to a very strict proof of the allegation thereon contained. Apart from the area verged green in the plaintiffs’ plan which originally belonged to the late David Egonu a brother of the late Samuel Egonu, the late Samuel Egonu did not sell any portion of the land verged yellow in the plan.”

They then went on to plead in paragraphs 5, 8 and 9 as follows:

“5. The 1st and 2nd defendants deny paragraph 5 of the Statement of Claim. Any building erected on the land by the late Victor Egonu was in exercise of his right as one of the sons of the late Samuel Egonu and with his permission.

8. The 1st and 2nd defendants deny paragraph 8 of the Statement of Claim. They further say that the late Victor Egonu could not devise the whole land verged yellow in the plan No. PO/E.30/65 to anybody because on the death of Samuel Aniche Egonu, the land verged pink devolved to (i.e. on) all his male issues including the 2nd defendant.
9. If the late Victor Egonu paid all the out-goings, in respect of the land in dispute he did so as the head of Egonu family, but this could not confer on his absolute right to the land or to any part of it.
10. The 1st and 2nd defendants deny paragraph 11 of the Statement of Claim.” (Underlining ours)

The 3rd and 4th defendants who were added by order of court claimed their interest through Michael Egonu their late father and projected this in paragraph 3 of their Statement of Defence which reads:

“3. The 3rd and 4th defendants say that their late father Michael Egonu was also one of the sons of the late Samuel Aniche Egonu and that their father survived his father and inherited the land in dispute with the other sons of the said Samuel Aniche Egonu.”

The main issue raised in the pleadings therefore, and on which the fate of the plaintiffs’ claim rested was as to the sale of the land verged pink to the plaintiffs’ father, Victor Obiora Samuel Egonu, by their grandfather Samuel Aniche Egonu. The plaintiffs have not claimed a declaration of title by virtue of devolution on death intestate either under or by operation of customary law (i.e. native law and custom) or otherwise. Surprisingly, the reference to customary law (i.e. native law and custom) throughout the whole of plaintiffs’ pleading was to highlight their father’s concern for the welfare of the widows of their late grandfather Samuel Aniche Egonu. (See paragraph 6 of the Statement of Claim). It was the customary duty of the plaintiffs’ father to allow the widows of his late father including the 1st defendant and the mother of John Okechukwu Chukuma (alias Egonu) to remain and live on the land verged yellow.

There was, however, a very determined effort by the plaintiffs/appellants to prove the sale pleaded in paragraph 4. To this end, they produced Gregory Osuma to testify. His testimony-in-chief was bare of details normally accompanying sale of land under customary law. It reads:

“I know late Samuel Aniche Egonu as well as late David Egonu. I also know late Victor Samuel Obiora Egonu who was the son of Samuel Aniche Egonu. I also know Jacob Ekubeze Egonu. Samuel Aniche Egonu and David Egonu, and Jacob Ekubeze Egonu were full brothers. I have known the three Egonu brothers since 1904. …….. In 1917, David Egonu moved from his house at Egerton Street to No. 40 New Market Road and lived with his brother Samuel Aniche Egonu. ……….

Q. In 1904 when you knew the Egonus who owned the property now known as No. 40 New Market Road

Ans. It was owned by Samuel Aniche Egonu

Q. What happened to this property to your knowledge

Ans. In 1924 late Samuel Aniche Egonu sold the property at No. 40 New Market Road to his son Victor Egonu for 50pounds. Victor Egonu is now dead. …….

XXED by Egbu for the defendants : …..

It is correct that where the multi-storey building now stands formed part of the premises owned by Samuel Aniche Egonu. It is also correct that it was on the site of the present multi-storey building that late Victor Egonu built that house and lived. Late Victor Egonu built that house on or about the year 1925. It is correct that in 1925 David Egonu was already dead. Samuel Aniche Egonu was a title man in Osomari. He was quite well to do and was not in want. About 1924 Samuel Aniche Egonu had no other lands in Onitsha except his premises now known as Nos. 38 & 40 New Market Road. ………

Q. You learnt that Samuel Egonu sold his land to his son through Victor.

Ans. It is correct that it was Victor Egonu who told me of the sale by his father to him. But in addition, he, Victor invited me and other friends of his to witness the ceremony of this sale of land to him. I was present and I saw Victor bring 50Pounds and hand over to his father as purchase money. ……

The area sold by Samuel Aniche Egonu to his Victor was the entire premises now known as No. 38 and No.40 New Market Road. After the sale, the father, Samuel Aniche Egonu continued to live on the premises …. I was not taken round the premises during the ceremony but I know the premises well. ……It is correct that in 1924 where Victor Egonu built (Now No. 38 New Market Road) was an empty plot of land.”

On this issue of sale, the other evidence available on record which in our opinion, is of no probative value came from the 4th appellant (P.W. 6) and the will itself. In his testimony, the 4th appellant stated:

“Our family tradition is that my late father purchased the area verged yellow otherwise known as No. 46 New Market Road, Onitsha from his own father, Samuel Aniche Egonu. This was in 1924.”

The will Exhibit 4, contained the declaration of purchase in the 9th clause which reads:

“Let it be known that the compound and houses on the New Market Road, Onitsha belong to me exclusively and entirely. The old zinc house which has since been demolished together with the compound were given to me by my father for a payment of fifty pounds (50 Pounds) which he required for building a house at Osomari.

I bequeath unto all my male children the compound and houses on the said New Market Road including PERSEVERANCE VILLA the new bungalow, the shop and all furniture, Edward or the oldest surviving son always remaining in charge, provided also that Edward or the eldest surviving son undertakes the care and education of the rest of my children male and female and until the latter are married, and the said property to be regarded as belonging to my sons jointly, the oldest surviving son remaining in charge.”

That clause, particularly the first two sentences, in our view, constituted the basis on which the plaintiffs rested their case.

A mere declaration of ownership or transfer of title in a will does not prove ownership of the land or transfer of title to the land.

Despite his earlier testimony and without considering the fatal consequence of such testimony to the case put forward, the 4th plaintiff/appellant went on to testify as follows:

“I knew Samuel Aniche Egonu. He was my grandfather. He died in 1934. He was survived by three male children, namely, Victor Obiora, Samuel Egonu, (my father), Michael Egonu (the father of 3rd and 4th defendants) and Louis Egonu the Iyasele Onowu of Osomari. ………

Q. What is Osomari custom relating to inheritance of property

Ans. On the death of a father, his property whether land or personal devolves exclusively to his first son who is the okpala. My late father Victor Egonu was the first son of Samuel Aniche Egonu. He survived his father and should inherit him. My late grandfather died intestate. In that event his eldest son looks after his wives, provides accommodation for them during good behaviour.”

His testimony under cross-examination was even more damaging to the basis of their claim. It reads in parts:

“It is correct that my grandfather Samuel Aniche Egonu was survived by five wives including 1st defendant and my own paternal grandmother. All these five wives were living with my grandfather on the land in dispute”

On the issue of customary law of inheritance of Osomari people, the 5th PW., James Ijomah testified that

“On death of a father the eldest son inherits him”

More interesting is his evidence under cross-examination. It reads :

“Q. What happens when a father left 4 sons What will happen to the other three sons not okpala

Ans. The eldest brother may offer them help out of the inheritance.

Q. Under your custom, can the eldest brother drive away his younger brothers from the land

Ans. No, he cannot do that.”

This witness was a native of Osomari and a farmer by occupation. He was 70 years old and titled and a member of Igbu society. The respondents produced Gabriel Emejom (D.W.1) who testified that the eldest son or okpala takes over the charge of all the property left behind by his late father and that his other brothers have equal right to the property of their late father and that the property does not belong to the eldest son exclusively. He was an Ndiche in Osomari.

In his judgment to which we have already referred, the learned trial Judge rejected the evidence of sale, accepted the defence evidence of the law of inheritance under Osomari customary law, upheld the case put forth by the defence and dismissed the claim.

Before us, appellants’ complaint put forward by the 4th appellant and counsel for the other 3 appellants centres mainly around the evaluation and assessment of the evidence adduced. The 4th appellant (himself a legal practitioner), canvassing ground 1, submitted that the “plaintiffs claimed by the fact of sale from their grandfather to their father and by their father’s devise to them.” He further submitted that the sale was under customary law.

He conceded quite rightly, in our view, that a sale under customary law involves payment of money by the purchaser and delivery of possession by the vendor. Above all, these transactions must be in the presence of witnesses.

The 4th appellant contended that there were witnesses to the transactions and that P.W.3, Gregory Osuma was one of them. He laid emphasis on the various constructions the appellants’ father put up on the land as evidence of exercise of the right of ownership acquired through purchase and referred to the declaration in clause 9 of the will, Exhibit 4, as evidence of ownership.

He attacked with utmost ferocity the reasons given by the learned trial Judge for rejecting the evidence of sale or the story of sales and dubbed the reasons as untenable.

He further contended that even if sale was not proved the activity of the 1st and 2nd defendants constituted trespass.

He attacked the judge’s acceptance of the evidence of the defence on the various issues raised and submitted that the defendants were not truthful in their evidence.

He quite rightly contended that David Egonu’s descendants were not parties before the court but failed to appreciate the impossibility of avoiding any reference to evidence touching David Egonu and his interests in the land in dispute in view of the pleadings and the evidence both from the plaintiffs’ witnesses and the defence witnesses.

However, it was common ground that David Egonu did not occupy any part of the land in dispute i.e. the land edged PINK in Exhibit 1. That being so, it served no useful purpose dealing at such length as was done with the evidence which featured him and his interests in the area of land outside the land in dispute.

The 4th appellant also attacked the learned trial Judge’s opinion on the customary rights, interests and duties of okpala in Iboland in general, before proceeding to examine, evaluate and assess the evidence on the issue. He contended that his opinion coming as it did before the evaluation of the evidence in this particular case, foreshadowed and made the finding he arrived at a foregone conclusion.

On ground 6(a), he submitted that having been found to be co-owners, the plaintiffs/appellants were only liable to be non-suited in respect of the claims against and 2nd, 3rd and 4th defendants and entitled to succeed against the 1st defendant in respect of all the claims.

Finally, he submitted that the costs awarded were excessive.

Dr. Ume, learned counsel for the respondents was called on to reply only on the issue of whether a non-suit instead of an order of dismissal of the entire claim would have met the justice of the case in view of the finding of the learned trial Judge that the plaintiffs’ rights and interests in the land in dispute cannot be founded on the transaction of sale to their father by their grandfather but only on devolution under customary law of the rights and interests on death intestate of Samuel Aniche Egonu. He submitted that on the pleadings and evidence an order of dismissal was the only appropriate order.

On the issue of facts, it is settled law that the appeal court cannot ordinarily descend into the arena of contest and usurp the functions of the trial judge and jury in the evaluation and assessment of evidence and arriving at findings of facts. It is only when in the discharge of these functions proper use has not been made of the opportunity of seeing and hearing the witnesses or wrong conclusions have been drawn from accepted credible evidence or an erroneous view of the evidence adduced before the court has been taken or the findings of fact do not flow from the evidence accepted by the court that the appeal court can interfere with the findings of fact.

See Chief Shogbo Fabumiyi & Anor. v. Fatumo Temitoyin Obaje & Anor. (1968) NMLR 242

See Omoregbe v. Edo (1971) 1 All NLR. 282 at 289

See Alhaji Elias v. Suleimon & Ors. (1973) 12 S.C. 113

See Fashanu v. Adekoya (1974) 1 All NLR 35 at 41.

The 4th appellant and learned counsel for the 1st, 2nd and 3rd appellants have been unable to satisfy us that the condition precedent to the assumption of jurisdiction to disturb the findings of facts exists.

The 4th appellant who argued the appeal at length and who had every sentimental cause to be displeased at the learned trial Judge’s rejection of the evidence of sale adduced by Mr. Gregory Osuma (P1/W.3) was unable to satisfy us that the evidence given by Gregory Osuma if accepted, proved a sale of land and transfer of title to land under customary law. The sum total of his evidence was that he witnessed the payment of 50Pounds by Victor Obiora Samuel Egonu to Samuel Aniche Egonu. He did not witness the demarcation and delivery of possession of the land sold.

Over the years, it is one of the oft repeated catch phrases but a well settled principle of law that in a claim for a declaration of title the plaintiff must succeed on the strength of his own case (evidence) and not on the weakness of the defence (evidence) although any evidence adduced by the defence which is favourable to the plaintiff’s case will go to strengthen the case for the plaintiff.

See Kodinlinye v. Mbanefo Odu, 2 WACA 336 at 337

See Josiah Akinola & Anor. v. Fatoyinbo Oluwo and 2 ors. (1962) 1 All NLR. 224 at 225

See Idundun & ors. v. Daniel Okumagba (1976) 9 and 10 S.C. 227.

We observe that there are no facts in the plaintiffs’ pleadings or evidence tending to show the law governing the transaction, whether it was a sale under native law and custom or under English law. But before us here the 4th appellant submitted that it was a sale under native law and custom. We also observe that the nature of title Samuel Aniche Egonu had which he was alleged to have transferred to Victor Obiora Samuel Egonu was not pleaded or given in evidence. However, before us here, the 4th appellant has conceded that to constitute a valid sale and transfer of land, there must be payment of money and delivery of possession of the parcel of land sold in the presence of witnesses. The universality of this custom among Nigerians is not in doubt. Two cases readily come to mind where this court had occasion to accept the statement of the elements of a valid sale of land under customary law.

In the first case of Cole v. Folami (1956) 1 FSC 66 at page 68, Jibowu Ag. F.J. (as he then was) delivering the judgment of the court said:

“appellants’ counsel further argued that by native law and custom a valid sale of land could be conducted without the necessity for a conveyance under English law by mere handing over of the purchase money by the purchaser and by the delivery up of possession on the other hand by the vendor. There is no question about this but the transaction must be before witnesses.”

This statement was also adopted with approval by this court in the case of Erinosho v. Owokoniran & anor. (1965) NMLR 479 at 483 when Idigbe, JSC., delivering the judgment of the court said:

“We observe that there is not sufficient evidence on the exact nature of the transaction between Morinatu Oladiran and the Fafunwa branch of Ojomo Eyisha family. Was it a sale under native law and custom or under English law In order to transfer an absolute title under native law and custom it is necessary that such a sale be concluded in the presence of witnesses, who saw the actual handing over of the property from the Fafunwa branch of the family to Oladiran (see Cole v. Folami (1956) 1 FSC. 66). In order to transfer title under “English law” a deed of conveyance in respect of the same should have been executed in favour of Oladiran by the Fafunwa branch of the Ojomo Eyisha family; if the sale under English law was imperfect then on the evidence that Oladiran bought the land and went into possession, she acquired merely an equitable interest in the land.”

when therefore Gregory Osuma testified that

“after the sale the father Samuel Aniche Egonu continued to live on the premises ….. I was not taken round the premises during the ceremony.”

and the 4th appellant himself testified that

“It is correct that my grandfather Samuel Aniche Egonu was survived by five wives including 1st defendant and my own paternal grandmother. All these five wives were living with my grandfather on the land in dispute.”

they were in effect saying that Samuel Aniche Egonu did not deliver possession of the land in dispute to his son, Victor Obiora Samuel Egonu despite the improvement he was alleged to have made to some portions of the land. If, as alleged, the sale took place in 1924, and Samuel Aniche Egonu died in 1934, without delivering possession to Victor Obiora Samuel Egonu, it was logical to assume that the sale was cancelled or abandoned, and as the learned trial Judge rightly did, to reject the evidence of Gregory Osuma about the sale and find that no sale had been proved. (see M.E.P.C Ltd. v. Christian-Edwards (1978) 3 WLR 230)

We are ourselves in entire agreement with the learned trial Judge’s finding that the plaintiffs failed to discharge the onus of proof placed on them by their claim and pleadings.

Parties are bound by their pleadings. [Per Lord Radcliff in Esso Petroleum Co. Ltd. v. Southport Corporation (1956) Ac 218 at 238 and 241]. We find no circumstances to justify a departure from the rule the plaintiffs must be held to the case put forward in their writ of summons and pleadings. [per Brett, JSC., in African Continental Bank Ltd v. Attorney-General of Northern Nigeria (1969) NMLR 231].

A court is without power to award to a claimant that which he did not claim. [Etim Ekpenyong & 3 ors. v. Inyang Effiong Nyong & 6 Ors.(1975) 2 S.C. 71 at 80]. The plaintiffs claimed (declaration of) title not by devolution on death of their grandfather but by purchase founded on clause 9 of Exhibit 4 already set out above but which is for emphasis again repeated hereunder and reads:

“Let it be known that the compound and houses on the New Market Road Onitsha belong to me exclusively and entirely. The old zinc house which has since been demolished together with the compound were given to me by my father for a payment of fifty pounds which he required for building a house at Osomari.”

We observe on a closer study that throughout his evidence, the star witness Gregory Osuma (P.W.3) and indeed the only witness to testify on the issue never said the old zinc house and the compound were given to Victor obiora Samuel Egonu by his father. According to him, he only witnessed the payment of money which the vendor placed on the “Ikenga.”

The very many questions raised by this clause 9 of the will were never answered and the projection of Mr. Gregory Osuma into the whole transaction as a witness gave a slant to the transaction which the clause did not convey. The declaratory sentence in the clause, underlined above, in our view, conveys an impression of kindness for kindness rather than an impression of a business transaction of buying and selling. Does a father in such circumstances make a gift of the only valuable asset to his okpala We think not and there is no proof of such a gift.

We can therefore find no substance in ground 2 of the grounds of appeal.

Grounds 3(b), 3(c) and 3(d) are complaints about the learned trial Judge’s finding on the issue of sale. They only tend to emphasise the point that the plaintiffs/appellants claimed title by purchase and not by inheritance. We also find no substance in these grounds.

Turning to ground 5(a), we agree with the 4th appellant’s submission that the issue of native law and custom of any particular area in Nigeria is, unless judicially noticed, a matter of evidence. We also agree with his contention that the better approach is to consider evidence on the issue and arrive at a finding before making any comments on its similarity or otherwise with other areas with ethnic affinity. The general comments of the learned trial Judge notwithstanding, he did consider the evidence of native law and custom adduced before him in this case by the plaintiffs’ only witness and two witnesses called by the defendants before arriving at a finding of what the native law and custom of Osomari on the issue of inheritance on death intestate is. We can therefore find no real substance in the complaint. A trial Judge has no duty to consider any material that is not evidence before him in arriving at a decision and it is the duty of parties and counsel to bring before the court all relevant and useful material that can prove to the satisfaction of the court the native law and custom they are setting up. Even at that, the issue of native law and custom in relation to intestate succession is not of real moment in this case as it was not the foundation of plaintiffs’/appellants’ claim. The defendants/respondents filed no counter-claim and could not have had any declaration in their favour.

Dealing with ground 6(a), the 4th appellant submitted that in view of the finding of the learned trial Judge that the plaintiffs/appellants and 2nd, 3rd and 4th defendants/respondents are co-owners under native law and custom, he should have entered a non-suit against the plaintiffs in respect of their claims against the 2nd, 3rd and 4th defendants and allowed their claims against the 1st plaintiff in respect of all the claims.

It is settled law that a plaintiff cannot make a case contrary to his pleadings [Cardozo v. Doherty 4 WACA 78 at 80]. The appellants having alleged and pleaded that Samuel Aniche Egonu devested himself of the ownership of the land in dispute by sale and transfer of it to Victor Obiora Samuel Egonu (his son) they cannot turn round to assert their father’s title by inheritance in support of their claim in these proceedings. The appellants did cast upon themselves the onus of establishing by evidence that very fact which they pleaded. Thomas v. Holder (1946) 12 WACA 78. Ochoma v. Unosi (1965) NMLR 321. Eze v. Igiliegbe 14 WACA 61 at 63. Having failed to establish the case put forward in their pleadings as a result of contrary credible evidence, the plaintiffs’ case was properly dismissed. The order of dismissal was the only order that the justice of the case in that event demanded. The facts proved and accepted by the learned trial Judge do not therefore justify, in respect of the claim against the 2nd, 3rd and 4th defendants/respondents, an order of non-suit which would leave the door open to the plaintiffs/appellants to relitigate the issue of purchase of the land by their father which they have tried to establish without success.

The rights and interests in the land in dispute which devolved on their father on the death intestate of Samuel Aniche Egonu, under native law and custom and which on their father’s death passed on to them were not put in issue by them to invite an exhaustive examination and determination of their nature and extent and we would point out here that since the claims against the respondents were not based on rights acquired by their late father by intestate succession under customary law, we see no justification for the fears expressed by the appellants that the order of dismissal of their claims necessarily deprives them of those rights and interests or their future protection by legal process. For the avoidance of doubt, we would like to make it abundantly clear that it is the case put forward by the defendants in their pleadings which acknowledged the plaintiffs’ late father, Victor Obiora Samuel Egonu as the okpala and attributed all the powers he exercised in respect of the land in dispute to his status as okpala under native law and custom.

Similarly, the facts established by the evidence accepted by the learned trial Judge do not entitle the plaintiffs/appellants to judgment in their favour against the 1st defendant/respondent. As said earlier, none of the defendants filed a counter-claim. None sought a declaration of title and as such the dismissal of plaintiffs’ claim does not amount to a declaration in favour of 1st defendant/respondent. Indeed the plaintiffs loudly professed that their father was under a customary duty to accommodate her and did provide her with accommodation on the land in dispute. plaintiffs’ father is dead, and the 1st defendant lives with her son on the land in dispute. plaintiffs, according to their evidence, cannot eject the 2nd defendant/respondent. There is no evidence of any breach of customary tenancy that could lead to the expulsion of the 1st defendant. Further, there is no evidence as regards the devolution of the powers of the okpala or the person whom the powers have devolved.

We think that the learned trial Judge was, in the light of the plaintiffs’ pleadings, perfectly right in not entering a non-suit against the plaintiffs and justified in dismissing the claims against all the defendants/respondents. (See Sir Adesoji Aderemi v. Joshua Adedire (1966) NMLR 398 at 403; Chief Odum & Ors. v. Chief Chinwo & Ors. S.C. 305/1976 delivered by G.S. Sowemimo, JSC., on 21st July, 1978 (yet to be reported).

Ground 6(a) therefore fails.

Turning to ground 7 of the grounds of appeal, we see no justification in reducing the costs ordered. This ground is totally without any merit.

The appeal fails and is hereby dismissed.

The judgment of Oputa, J., in suit No. 0/64/1965 dated 17th March, 1975, together with the orders as to costs, is hereby affirmed.

And the appellants shall pay costs in this appeal in this court assessed at N381.00 (three hundred and eighty-one Naira).

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Other Citation: (1978) LCN/1969(SC)