Paulina Sebastian Akpan V. Mrs. Anthonia Alphonsus Etim Udoh (2007)
LawGlobal-Hub Lead Judgment Report
OWOADE J.C.A.
This is an appeal against the decision of the Honourable Justice Enefiok Udoh of the High Court Akwa Ibom State, Eket Judicial Division dated 25th April, 2002, dismissing the appellant’s suit.
The appellant and her deceased mother took out a writ of summons as plaintiffs against one Alphonsus Etim Udo as defendant before the lower court on 26th April, 1995. From the printed record. the writ of summons was followed by an amended statement of claim dated 8th December, 1995 wherein the plaintiff’s claim from the defendant in addition to special and general damages, an order cancelling, nullifying and/or setting aside the certificate of occupancy
No. UY/1561/94 dated the 23rd day of July, 1994 and registered as No. 93 of page 93 in volume 100 of the register of deeds kept in the Lands Registry in the office of Uyo, granted to the defendant in respect of property in dispute and
(iv) An order of perpetual injunction to restrain the defendant, his agents, workmen, servants or privies from further trespass onto the plaintiff’s property being lying and situate at No. 94 (formerly No 92) Ikot Ekpene Road, Uyo or doing thereon any other manner of work howsoever.
The defendant filed a statement of defence dated 23rd February, 1996 and counter-claimed as follows:
(i) A declaration that the contract of sale entered into between the plaintiff’s family represented by John Sebastian Akpan and Augustine Sebastian Akpan and the defendant on the 30th of September, 1991 touching and concerning the property identified and known as No. 92 (94) Ikot Ekpene Road, Uyo is valid, binding and conclusive.
(ii) An order of special performance on the plaintiff to rectify any error or anomaly in the agreement dated the 30th of September, 1991 touching and concerning the property known and identified as No. 92(94) Ikot Ekpene Road. Uyo.
(iii) An order of perpetual injunction restraining the plaintiffs’ their agents, servants, privies and whatsoever claming through them from entering or trespassing in whatever manner or form into the defendant’s property known and identified as No. 92(94) Ikot Ekpene Road, Uyo.
(iv) Ten million naira damages for not according to the defendant a quiet and peaceful enjoyment of his property identified and situate at No. 92 (94) Ikot Ekpene Road, Uyo.
Thereafter, on the 18th day of March, 1996, the plaintiffs filed a reply to the statement of defence and defence to counter-claim.
The case of the plaintiff is that the property in dispute belongs to her father one Sebastian Akpan who died intestate on 25th February, 1980 and that after the death of her father, the land in dispute devolves on the plaintiff’s family, letting out the stores to tenants and that the original defendant Mr. Alphonsus Etim Udoh was one of such tenants on the land in dispute. That eventually the said original defendant trespassed on the larger property and when investigated, he claimed that he has purchased the property from John Akpan one of the two male children of the deceased and he (the original defendant) showed the plaintiff deed of conveyance dated 20th March, 1977 and certificate of occupancy dated 23rd July, 1994 in his favour on the said property. It was on these facts that the plaintiff claimed that upon the death of her father intestate, she and her brother John, jointly applied and obtained letters of administration to manage their father’s estate, that in 1977, John was 13 years old, incapable of conveying the property and also that their father was still alive in 1977 and no devolution of his property took place until his death in 1980. At the trial, the plaintiff gave evidence and expressed surprise at the defendant’s claim. The defendant on the other hand, claimed he paid a total sum of about N500,000.00 on the instruction of the plaintiff and more particularly to the only two male children of the plaintiff’s family that is John and Augustine Akpan.
He tendered the deed of conveyance dated 20th March, 1977 executed between John Akpan and himself, the certificate of occupancy on the land and the plaintiff’s father survey plan on the land submitted to him. And to show that his over-lordship is now recognized by the existing tenants on the land, he called one of the tenants to him as DW2.
The reasoning of the learned trial Judge for dismissing the plaintiff’s/appellant’s case could be seen more particularly from pages 43-45 of the printed record. Starting from page 43, the learned trial Judge held as follows:
‘The primary issue to determine in this case is whether the real estate of late Sebastian Akpan Akpan was vested in the 2nd plaintiff and her brother John by virtue of the letters of administration, tendered and admitted as exhibit 2. Ancilliary to this is whether John S. Akpan could alone i.e. without the consent and or authority of the 2nd plaintiff dispose of the property at 94 Ikot Ekpene Road, Uyo.
Exhibit 2 reads in part thus:
“It is hereby ordered that a grant of letters of administration of the personal property of the above-named deceased Sebastian Akpan Akpan do pass under the seal of the High Court of Justice, Cross River State of Nigeria to Pauline Sebestian Akpan (Miss) and John Sebestian Akpan, applicants, the children of the said deceased respectively.”
At page 44
“I am not in doubt whatsoever that exhibit 2 by its ipse dixit, is limited in scope and application to the personal property as opposed to the real estate of Late Sebastian Akpan Akpan. The plaintiff fought and conducted this case on the footing principally that based on exhibit 2, John Sebastian Akpan had no absolute right to dispose of the property at No. 94 Ikot Ekpene Road Uyo.”
And after referring to the decision of the Supreme Court in Ugu v. Tabi (1997) 7 NWLR (Pt.513) 368, (1997) 51 LRCN 1704, where the Supreme Court held that the grant of letters of administration in respect of personal estate does not cover the administration of the real property of the intestate. The learned trial Judge continued, still at page 44 of the record:
“During the pendency of this case, the 1st plaintiff was reported dead. She was not shown to be an administrator, real or personal of the Estate of Sebastian Akpan Akpan.”
The holding of the Supreme Court in Ugu’s case (supra) has shown that the 2nd plaintiff had no locus in the management of the Real Estate of Sebastian Akpan Akpan. It can therefore not be justifiably said that in disposing of the property at 94 Ikot Ekpene Road, Uyo, John Sebastian Akpan alias Usen was at fault. I hold that he was competent to do so.”
And concluded at pages 44-45 as follows:
“Because of my holding above, I do not consider it necessary to evaluate the other issues raised in this case.
Besides, because of the family ties between the parties, I refuse to award damages and cost on the same hand. I refuse to award damages on the counter claim.”
By her amended notice of appeal of 12th October, 2006, the appellant filed four (4) grounds of appeal from which the following issues are set down for determination.
- Whether the trial court was right when it held that John Sebastian Akpan alias Usen was competent to dispose of property at 94 Ikot Ekpene Road, Uyo without determining whether the deed of conveyance purportedly executed by Usen on 20th March, 1977 was valid in law to confer right of occupancy on the defendant in respect of the property in dispute.
- Whether the trial court was right when it held that the primary issue to detem1ine in this case is whether the real estate of the plaintiff’s father was vested in the plaintiff and her brother by virtue of the letters of administration tendered in evidence.
- Whether non-delivery of judgment within the prescribed period of three months by the trial court occasioned miscarriage of justice thereby rendering the judgment a nullity.
- Whether the learned trial Judge without notice of extended jurisdiction had jurisdiction to deliver judgment in Eket judicial division though evidence and final addresses of counsel were received by the trial court sitting at Uyo Judicial Division of the High Court of Akwa lbom State.
The respondent on the other hand, formulated the following issues for detem1ination.
(i) Whether the purported deed of conveyance executed on 20th of March, 1977 and hammered by the appellant can be considered in isolation of the evidence on record and all documents tendered and admitted in evidence by the respondent. If not, whether the trial court was right in dismissing the appellant’s case and awarding the counter-claim of the respondent that John Sebastian Akpan representing the appellant’s family was competent to dispose of the property and the transaction valid.
(ii) Whether from the evidence on record there are evidence of the appellant and the family being privy to the same, inducement in the sale of the properly thereby creating equity in favour of the respondent to deserve protection and satisfaction by this honourable court.
(iii) Whether the appeal is not spent and a mere academic discourse the property having been sold to a third party.
In the appellant’s reply brief dated 22nd February, 2007 and filed on 26th February, 2007, learned counsel for the appellant argued inter alia that the respondent’s (3) three issues for determination are not related to any of the four grounds of appeal in the appellant’s amended notice of appeal and therefore cannot be countenanced as the respondent did not cross-appeal nor filed respondent’s notice, she cannot raise issues that did not arise from the grounds of appeal.
I have carefully considered the three (3) issues formulated by the respondent and found in agreement with the appellant’s counsel, that none of the issues arose from the grounds of appeal filed by the appellant in this case.
It is trite law, that issues or questions for determination in an appeal are framed from the grounds of appeal before the court.
Consequently, any issue, argument or other part of a brief which has no ground or grounds of appeal to support it or which is based on a ground of appeal which no leave has been sought or obtained is not only incompetent but completely valueless. Any such issue taken up in the brief ought to be and must be ignored by the appellate court.
The issue for determination in an appeal accentuates the issues in the grounds or errors alleged. It is for this reason that the issues for determination cannot and should not be at large but must fall within the purview of the grounds of appeal filed. Omo v. Judicial Service Commission Delta State (2000) 12 NWLR (Pt. 682) 444 at 454-455.
This appeal shall be determined only on the issues formulated by the appellant.
On issue No. 1 learned counsel for the appellant submitted that the plaintiff sued the original defendant not on the basis of exhibit 2 – letters of administration but as the beneficiary of the estate of her deceased’s father and that by instituting the action, the plaintiff did not arrogate to herself title neither did she intermeddle with the real estate of her late father rather by her action, the plaintiff challenged the validiting of the deed of conveyance exhibit 8 and certificate of occupancy exhibit 10 in respect of the disputed property. Regrettably, said counsel, the trial court did not make findings regarding the issue as to whether exhibit 8 the deed of conveyance purportedly executed by John and the certificate of occupancy exhibit 10 issued to the original defendant pursuant to the said sale was valid.
Appellant’s counsel further submitted that the court below wrongly relied on the case of Ugu v. Tabi (1997) 7 NWLR (Pt. 513) 368 at 381 to hold that John Sebastian Akpan alias Usen was not at fault in disposing of the property the subject matter of dispute. The alleged fact that John was competent to convey the property to the original defendant was not founded on any law and even if it was based on the letters of administration (exhibit 2) which is not conceded, the said letter did not exist as at the date or execution of the purported deed of conveyance. The letters of administration was issued on 10th September, 1981, whereas the conveyance was purpol1edly executed on 20th March, 1977.
Counsel further submitted that the trial court did not consider that it was seriously in dispute that the plaintiff’s brother John alias Usen signed exhibit 8 and other documents tendered in evidence purportedly claimed by the original defendant to have been signed by him. The defendant said counsel did not call John as a witness and no reason was offered why the defendant did not call John who was alive and in the country to enable the court ascertain the truth or correctness of the original defendant’s allegations.
On the failure to call John, learned counsel for the appellant submitted first, that exhibit 8 the deed of conveyance being documentary hearsay should be discountenanced and also that the provision of section 149(d) of the Evidence Act should be invoked for the court to presume that the evidence of John if produced would have been unfavourable to the defendant.
The trial court, said appellant’s counsel, did not avert its mind to the fact that the real estate of the plaintiff’s father had on his death become family property and that in accordance with section 3 Real Estate Law Cap. 2 Laws of Cross River State applicable in Akwa Ibom State, the real estate of the deceased is vested in the Administrator General of Akwa Ibom State and neither the plaintiff nor John could dispose of the property in dispute without the consent of the Administrator-General. On this, counsel relied on the cases of Ojomo v. Ibrahim (1999) 12 NWLR (Pt. 631) 415 at 424, and Animashaun v. Olojo (1990) 6 NWLR (Pt. 154) 111 at 123. And added that being an issue relating to sale of land, the defendant in order to succeed must call other witnesses. He referred on this point to the cases of Chief Shonkan & Ors v. Military Governor Of Ogun State (1998) 26 LRCN 110, Rabiu v. Silifatu Abasi (1996) 40/46 LRCN 1419 at 1425; (1996) 7 NWLR (Pt. 462) 505.
Learned counsel for the appellant urged the court to resolve issue No.1 in favour of the appellant by setting aside the purported sale of the property in dispute and also an order canceling the certificate of occupancy No. Uy/1561/94 dated 23rd July, 1994 registered as No. 93 at page 93 volume 100 of the register of deeds kept in the Lands Registry, Uyo purportedly granted to the defendant in respect of the property in dispute.
The learned counsel for the respondent on the other hand, submitted that a court of law must consider the case as a whole.
That is to say, it has a duty to hear and weigh the evidence both oral and documentary on the imaginary scale of justice before deciding which way it tilts to. And that in relation to the present case, the purported deed of conveyance relied upon by the appellant as the basis of the action cannot be considered in isolation. And that the appellant did not explain how the documents of title of the property got to the hands of the respondent. Also, the appellant did not also claim an account of rents received by the respondents since she claimed ignorance of the sale.
Respondent’s counsel further submitted on appellant’s issue NO.1 that where a party induced another to enter into a contract and derived benefits therefrom he cannot be heard to deny the validity of the contract. And as equity frowns against double portions, the court of Equity has a duty to determine which way to satisfy the equity. He referred to the case of Okechukwu v. Onuorah (2000) 15 NWLR (Pt.691) 597, (2000) 82 LRCN 3300 page 3314 at 3323.
In deciding issue No. 1 it must be observed that the extensive arguments presented by the learned counsel for the appellant was influenced by the counsel’s belief that this appeal is a proper one for the invocation of the powers of the Court of Appeal under section 16 of the Court of Appeal Act to rehear the matter and take appropriate decisions possibly for this reason, one important argument in support of the issue which the learned counsel for the appellant forgot to canvass is that the learned trial Judge indeed re-wrote the script of the contesting parties, jumped into the arena of contesting parties and ended up deciding on issues that were not joined in the pleadings of the parties and thereby failed in his duty as an important umpire in the process of adjudication.
The summary of the request which the plaintiff/appellant submitted for adjudication was for nullification of the deed of conveyance and the certificate of occupancy executed in favour of the defendant/respondent, damages and injunction. Also, the summary of the request submitted by the defendant for adjudication in his counter claim was for validation of the contract of sale between the plaintiff’s family represented by John Sebastian Akpan and Augustine Sebastian Akpan. damages and injunction.
And if one may start from the rear, the learned trial Judge did not give any consideration to the counter-claim of the defendant, neither did he demonstrate in full a dispassionate consideration of the issues raised by the pleadings and evidence of the plaintiff and/or of the parties before coming to the unsolicited conclusion that “it can therefore not be justifiably said that in disposing of the property at No. 94 Ikot Ekpene Road. Uyo. John Sebastian Akpan alias Usen was not at fault. I hold that he was competent to do so.”
With respect to the learned trial Judge, that holding does not represent the mind, the claim or issues raised by any of the parties before him. It is trite that the court as well as the parties are bound by the pleadings. A court adjudicating in a case governed by pleadings should only decide on the issues which the parties have put forward by their pleading. SCOA Nigeria Limited v. Olabode Vaughan & 1 Or (2003) 1 NWLR (Pt. 800) 210 at 219, Enang v. Adu (1981) 11-12 SC 25. Yakassai v. Incar Motors (Nig.) Ltd. (1975) 5 SC 107. Osajile v. Odi (1990) 3 NWLR (Pt. 137) 130.
In the instant case, the trial court was wrong to have decided the case upon a point not made out in the pleadings. In Trade Bank Plc v. Khaled Barakat Chami (2003) 13 NWLR (Pt. 836) 158, the Court of Appeal (Kaduna division) had the occasion to consider the effect of failure to evaluate evidence and thereby coming to a wrong conclusion occasioning a miscarriage of justice. Salami J .C.A. supported the lead judgment of his learned brother Dalhatu Adamu J.C.A. who had this to say at pages 179-197 of the report.
‘The court as an impartial arbiter does not make a case for either party before it and, in the course of its duty of adjudication. It must avoid doing or saying anything capable of plunging into the arena of the dispute such as taking sides with any of the parties before it. In the instant case, the respondent pleaded that he did not enter into any guarantee agreement with the appellant. The trial court therefore erred when it held that the guarantee agreement tendered in evidence by the appellant was not stamped and registered and proceeded to enter judgment in favour of the respondent on that basis.”
Similarly, in the present case, the learned trial Judge was not only wrong when he held that John Sebastian Akpan alias Usen was competent to dispose of property at 94 Ikot Ekpene Road, Uyo without determining whether the purported deed of conveyance was valid to confer right on the defendant in terms of issue No. 1 of the appellant. but also wrong, perhaps more fundamentally in the sense that the parties did not join any issues on the capacity or otherwise of John Sebastian Akpan to dispose of the property in dispute. Issue No. 1 is resolved in favour of the appellant.
The 2nd issue is whether the trial court was right when it held that the primary issue to determine in this case is whether the real estate of the plaintiff’s father was vested in the plaintiff and her brother by virtue of letters of administration.
Here, learned counsel for the appellant submitted that the issue joined by the parties in the pleadings was not whether the real estate of the plaintiff was vested in her and her brother by the letters of administration and that since the trial court failed in its pre-eminent duty of proper evaluation of the legal evidence, then this court has a duty to intervene by evaluating or re-evaluating the evidence so as to make its findings and conclusions.
The learned counsel for the respondent submitted in relation to issue No.2 that the appellant is estopped from complaining now because she was privy and participated in the sale as shown in the series of letters written by her to the respondent which were admitted as exhibits 18, 18A, 19m, 20, 28 and 29. Furthermore, that the sale was done by the male and principal members of the family on 30th September, 1991.
Again, the matter of letters of administration was neither an issue nor a primary issue as held by the learned trial Judge because it did not arise from the pleadings of the parties.
Consequently, my reasoning and findings on issue No.1 are also applicable to issue No.2. It is the primary duty of the court of trial to make findings of fact on material issues, nay, on all issues placed before it, where as in the instant case, a trial court fails to make a finding of fact on specific issue of fact and in consequence fails to resolve the issues that arise in the pleadings of the parties, the proper course an appellate court should take is to remit the case for retrial by another Judge. Having found that the finding of the learned trial Judge that the “primary issue to determine in the case was whether the letters of administration vested in the plaintiff and her brother” did not arise from the pleadings, issue No.2 is also resolved in favour of the appellant.
The learned trial Judge failed to evaluate the evidence tendered by the parties in this case, the evidence of the parties was not weighed as expected on an imaginary scale thereby leading to a perverse conclusion.
In the circumstance, the proper order is to set aside the judgment of the lower court. Having so held, it becomes unnecessary for me to consider appellant’s issues Nos. 3 and 4 which together deal with the non-delivery of the judgment of the court below within the prescribed period. In the circumstances of this appeal, issues Nos. 3 and 4 have become academic and hypothetical. It is trite law that a court of law would not entertain or pronounce on academic or hypothetical issues. Gwar v. Adole (2003) 3 NWLR (Pt. 808) 516 C.A. Rabiu v. Amadu (2003) 5 NWLR (Pt. 813) 343, Ohwovoriole v. F.R.N. (2003) 2 NWLR (Pt. 803) 176, Ejoh v. Wilcox (2003) 13 NWLR (Pt. 838) 488.
In conclusion, this appeal is meritorious. It is allowed. The judgment of Enefiok Udoh J. of the High Court of Akwa Ibom State, Eket judicial division in suit No. HU/121/95 delivered on 25th April. 2002 is hereby set aside. Suit No. HU/121/95 is accordingly remitted to the honourable, the Chief Judge of Akwa Ibom State for reassignment to another Judge of the High Court other than Enefiok Udoh J. for trial de novo.
There shall be no order as to costs and that shall be the judgment of the court.
Other Citations: (2007)LCN/2438(CA)
