Eugene Nnaekwe Egesimba Vs Ezekiel Onuzuruike (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

In the High Court of Imo State, judgment was entered on 14th April, 1988, for the plaintiff on his claim against the defendant for declaration of title to land, damages for trespass and injunction. The defendant appealed to the Court of Appeal which on 20th November, 1996 allowed his appeal, set aside the judgment of the High Court and entered judgment dismissing the plaintiff’s claim in its entirety with costs. The plaintiff has appealed to this court.

The plaintiff’s case was that the land in dispute was owned and farmed by his ancestor, one Obom, from whom it descended to him by inheritance through several of Obom’s descendants. He relied on several acts of ownership and possession such as farming, building, raising families and burying their dead on the land, amongst other acts. The plaintiff alleged that he was still farming on the land when the defendant seized it from him sometime in 1976.

The defendant’s case on the other hand was that the land in dispute was his, also by inheritance, it having descended to him from one Okorie, through his father, one Onuzuruike. The kernel of his case was that his grandfather, one Egwim, gave the land to one Onyebueze, to build upon on condition that Onyebueze would pay tribute and that the land would revert to the owner in the event that Onyebueze vacated it. That event happened in 1938 when plaintiff’s family vacated the land and stopped paying tribute. Consequently, the defendant took possession of the land in 1938 and has since been using it for farming without interruption. The defendant relied on a previous arbitral settlement of the dispute between the parties over the land which went in his favour and pleaded that the plaintiff was estopped from relitigating the same question which had been resolved in his favour by arbitration. The trial Judge ruled in favour of the plaintiff on the several issues that arose in the case. He found that “the plaintiff and his forebears lived on the land in dispute and farmed on it, that his parents and his forebears died and were buried there, and that the family has moved out to another part of Obinaikpa Umuokwaraeke Umuobom to live in.” He held that “there was no credible evidence adduced by the defendant to support the arbitration he alleged.” He, therefore, found as a fact that there was no native arbitration of dispute over the land. Being of the view as above stated, it was inevitable that, as he did, he should enter judgment for the plaintiff. On the defendant’s appeal to the Court of Appeal the issues raised by counsel on behalf of the defendant were mainly of fact, concerning the correctness of the finding of the trial Judge that the plaintiff proved his title to the land and whether he was correct in holding that there was no arbitration in the dispute over the land. The Court of Appeal resolved the appeal on two grounds, one of which was purely procedural while the other was on the factual question whether or not there was arbitration. The procedural ground arose from the state of the pleadings. Katsina-Alu, JCA, (as he then was) who delivered the leading judgment of the court below was of the view that the crucial issue to be resolved in the case was whether there was a grant to the plaintiff’s ancestors. However, he held that since the defendant averred by his statement of defence that his ancestors made a grant of the land in dispute to the plaintiff’s ancestors upon condition, the plaintiff not having filed a reply to rebut the averment must be taken to have admitted the averment with the consequence that evidence adduced by him in denial of the averment went to no issue. In regard to the arbitration issue, the court below, after an extensive review of the printed evidence, disagreeing with the view of the trial court, came to the conclusion that the defendant “had called credible evidence to establish the fact that the elders mediated over the dispute and found in his favour.”

By the time the matter reached this court the issues have been considerably narrowed. They are formulated by the plaintiff’s in the appellant’s brief as follows:-

(1) Whether failure by the appellant to file a reply to the statement of defence amounted to an admission of a grant or relieved the respondent of his duty to prove a grant of the land (Ground three).

(2) Whether the respondent proved a binding customary arbitration in his favour as against the appellant assertion that there was no customary arbitration. (Grounds one & two).

(3) Whether the appellant proved the value of the iroko tree felled and sawed by the respondent (Ground four).”

It is not difficult to agree with Mr. Nnodum, counsel for the plaintiff, that the Court of Appeal was in error when it held that non filing of a reply to the statement of defence in the case was tantamount to an admission of a grant of the land to the plaintiff. The Court of Appeal relied on the cases of Joe Igah & Ors. v. Chief Ezekiel Amakiri (1976) 11 SC 1 and Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 733 for a proposition that “failure to file a reply to rebut the far reaching averment that the land in dispute was granted to the ancestors of the respondent on payment of customary tributes is tantamount to an admission.” However, those two cases are not apt because the issues they dealt with are different from the present one. There is n general proposition of law that failure to file a reply to rebut an averment in a statement of defence which does not contain a counter claim is tantamount to an admission. Where the defendant by his pleading sets out a case which cannot be met by mere denial it is a matter of utmost prudence, if not necessity, to file a reply.

It is common ground that the High Court Rules of Eastern Nigeria (Cap. 61, Laws of Eastern Nigeria, 1963) (‘the Rules’), then applicable in Imo State, did not contain provisions as to filing of reply to a statement of defence. Counsel for the parties, however, adverted to O. 33, r. 16 of the rules which provided that:

“The court if it considers that the statements of claim and defence filed in any suit insufficiently disclose and fix the real issues between the parties may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.”

Mr. Nnodum, counsel for the plaintiff, argued that that rule applied only where the statements of claim and defence insufficiently disclosed and fixed the real issues between the parties and it was thereby, necessary to have further pleadings, including a reply, in order to bring the parties to an issue. Mr. Okoroafor, counsel for the defendant on the other hand referred to the same rule as foundation for the submission that failure to file a reply amounted to an admission. It is evident that O. 33, r. 16 is not relevant to the question whether or not failure to file a reply is tantamount to an admission of the material averments in the statement of defence. It is merely an enabling provision permitting the High Court to order service of pleadings subsequent to that last filed consequent upon an order made by the court pursuant to 0.33, r. I which provided that written pleadings shall be ordered by the court. Where the High Court did not order a reply to be filed when ordering pleadings pursuant to O. 33, r. 1, a plaintiff who considers that pleadings subsequent to the statement of defence is essential may apply for leave to file a reply. O. 33, r. 16 is not, in my opinion, intended to authorise the High Court to seize the initiative to order pleadings subsequent to a statement of defence where the plaintiff has not asked for such an order. Where the only pleading filed is the statement of claim absence of a statement of defence means that no issue is joined. That there is an implied joinder of issues on a defence which is unaccompanied by a counter claim if no reply is served appears to me to be a general principle of our procedural law which, for avoidance of doubt, is often incorporated in rules of civil procedure in many of our jurisdictions. Parties are brought to an issue where the last pleading is the statement of defence to which a counter claim had not been appended. In such a case it is assumed that the plaintiff does not intend to rely on any excuse or justification in answer to any allegation in the statement of defence or raise any fresh facts not already contained in the pleadings filed, but is content to traverse the allegations in the statement of defence and, thereby, challenge the defendant to prove the truth of those allegations. Where, of course, the plaintiff seeks to contradict the allegations in the statement of defence not merely by a traverse but by raising issues of fact which would take the defendant by surprise, he should raise such issues by a reply. But, even then, the consequence of his not so raising it is not that he is taken to have admitted the truth of the allegations of fact in the statement of defence so as to free the defendant from the obligation to lead evidence in proof of what he alleges, but to deprive the plaintiff from adducing evidence of facts not pleaded or already raised by the pleadings as they stand. In Alhaji Taofik Alao v. African Continental Bank Ltd. (1998) 56/57 LRCN 3209 (1998) 3 NWLR (Pt. 542) 339 at 370 this court said (per Iguh, JSC):

“Where, however, because of the nature of the averments in the statement of defence filed, the plaintiff proposes to lead evidence in rebuttal or to set up some affirmative case of his own in answer to the facts alleged by the defendant or raise issues of fact not arising out of two previous pleadings, the plaintiff as a matter of prudence and general practice shall put in a reply. See Bakare & Anor. v.Ibrahim (1973) 6 SC 205.”

I may further add, as held in a number of cases, that a plaintiff is entitled to lead evidence on a point raised in the defendant’s pleading. See Agu v. Ikewibe (1991) 1 NSCC 385, 400 (1991) 3 NWLR (Pt.180) 385. When a court is faced with the contention that the failure of the plaintiff to file a reply should affect the result of the case the proper approach is first, to enquire whether a reply was essential; and, secondly, if it was, whether evidence of facts which should have been pleaded in the reply had been adduced and admitted. It is a wrong approach, straightaway, as the court below did, to hold that failure to file a reply to a statement of defence not accompanied by a counter claim amounted to an admission. However, this will not affect the result of the case if the court below was right in its conclusion that the defendant’s plea of estoppel succeeded. The plea of estoppel was based on a decision of arbitration alleged by the defendant. In paragraph 10 of the statement of claim the plaintiff averred that the defendant entered the land and cut down an iroko tree, whereon the plaintiff took a civil action against him. In paragraph 12 of the statement of claim he averred that: