Peter Ojoh V. Owuala Kamalu & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal against the judgment of the Court of Appeal (hereinafter in the rest of this judgment referred to as the court below) sitting in Port Harcourt, Rivers State, delivered on 29th of February, 2000 allowing the appeal of the respondents (plaintiffs in the trial High Court) by setting aside that court’s decision. The judgment of the court below is at pages 261-275 of the records which concluded (Per Pats-Acholonu,JCA as he then was) at page 274 thereof thus:

“In the final result, the appeal succeeds and the judgment of the lower court is set aside.”

The appellants herein being dissatisfied filed a notice of appeal dated 23rd of March, 2000 containing eight grounds of appeal. By a motion on notice dated 5th November, 2001 the appellants sought the leave of this court to regularize the said appeal, prayers contained therein which this court granted in the following terms:

(i) An order extending the time within which the appellants may seek leave to appeal.

(ii) An order for leave to appeal.

(iii) Extension of time within which to appeal.

(iv) Leave to appeal on grounds other than grounds of law.

(v) An order deeming the annexed notice of appeal was hinged.

The facts of this case as made out in the High Court of Imo State sitting at Aba Division may be briefly stated as follows:

The respondents as plaintiffs/cross-appellants in the High Court of Imo State, Aba Judicial Division claimed against the appellants herein defendants that:

“(1) The plaintiffs are at all material times to this action in actual and peaceable possession of the piece or parcel of land known as and called “Egbelu Umuogele” land (hereinafter called “the land in dispute” situate at Umuocham village area within jurisdiction of the High Court, Aba and of an annual value of N10.00 (Ten Naira).

(2) On the 8th day of August, 1982 the defendant by himself, his servants or agents willingly and unlawfully broke and entered into the said land in dispute with a caterpillar and damaged the plaintiffs palm trees, raffia palms and pears and farm land, without the leave, consent or licenses of the plaintiffs.

(3) The defendant has since started to fence the said land and to put up a batcher thereon and posted something thereon and will continue to so trespass thereon unless restrained by the court.

And consequential claims of N20,000 general and special damages and perpetual injunction restraining the defendant by himself, his servants, agents or privies from further entry or trespass unto the said land.”

For the said claim see pages 2-3 of the records. The plaintiff relied on the further amended statement of claim vide page 88-92 of the records. The defendant for his part relied on the 2nd further amended statement of defence vide pages 101-106 of the records.

In a considered judgment the trial Judge (Johnson, J) held inter alia –

“In the instant case I am satisfied that title resides in the defendants. The plaintiffs have neither title nor possession.”

The respondents being dissatisfied with the judgment of the High Court appealed to the court below on 5th of August, 1992 – the court below allowed the said appeal but the appellant herein being dissatisfied with the said decision has further appealed to this court. The parties exchanged briefs of argument; while the appellants formulated four issues for our determination, the respondent equally submitted four issues for our consideration as follows:

By the Appellants they are:

(i) Whether the learned Justices of the Court of Appeal were right in law and on the facts when they held that the respondents proved their case.

(ii) Whether the learned Justices of the Court of Appeal were right in law and on facts when they held that the appellant was a trespasser on the said property.

(iii) Whether the learned Justices of the Court of Appeal were right in law in using a document which was not pleaded as evidence of the fact that the respondents herein had put out a caveat on the property which is the subject matter of the appeal.

(iv) Whether the learned Justices of the Court of Appeal were right in law and on the facts when they failed to consider the defence of estoppel and the doctrine of standing by as shown on the printed record.

By the Respondents the issues posed for our determination are:

1. Whether the court below was right when it held that the plaintiffs/appellants proved their case.

Grounds 3 and 4;

2. Whether the court below was right when it held that the defendant/appellant was a trespasser on the land in dispute – ground 8
3. Whether the comment by the court below that as far back as 1962, members of the public were warned to steer clear of “Egbelu Umuogele” land by the plaintiffs/respondents caused a miscarriage of justice.
4. Whether the court below erred in failing to consider the defences of estoppel and standing by ground 5. ”

Since no issues were formulated by the appellant from grounds 1, 6 and 7, they are deemed abandoned and should be struck out.

Cross Appeal:

1. Whether the court below was right when it held that exhibit ‘P’ wrongly received in evidence – ground 1 of cross-appeal.
2. Whether the Court of Appeal’s failure to determine the issue raised in ground II of the grounds of appeal, occasioned a miscarriage of justice

Ground 2 – cross-appeal. ”

The plaintiffs tendered the Renaissance Newspaper of June 25, 1975 received in evidence as exhibit ‘D’ and ‘the Statesman’ of 18th September, 1981 received in evidence as exhibit ‘P’. The witness testified that he could not trace the ‘Daily Star’ of 16th September 1977 and the “Eastern Express” of 1961 and 1962 respectively.

The plaintiffs’ case was that sometime in 1971, Jonathan Daba who was junior to the 1st plaintiff purported to lease the land in dispute to the defendant. But on realizing that the said lease was null and void, returned the purchase price of N624 to the defendants through his solicitor. The letter returning the purchase price was received in evidence as exhibit ‘P’

Inspite of this fact, the defendant on or about the 8th of April, 1987 broke and entered into the plaintiffs land with the aid of thugs and three policemen. They entered the land with a caterpillar, bulldozed it and in the process destroyed pear, palm and raffia palm trees. The plaintiffs’ solicitor, it was maintained, wrote a letter dated 11th March, 1998 to the defendant warning him of the consequences of his action. The letter was received exhibit ‘D’. In conclusion, it was stated that inspite of the letter the defendant continued his acts of trespass and even put up a small back house during the pendency of the case.

The case made out by the defendant was to the effect that he leased the land in dispute from Jonathan Daba, a member of Umudaba which family was unrelated to the plaintiffs’ Umuogele family. The deed of lease was exhibit ‘H’. However by exhibit ‘O’ put in evidence by the plaintiffs, the Court of Appeal found that Jonathan Daba, the defendants’ vendor was a member of Umougele family and that the ‘Umudaba family was fictitious. The judgment was subsequently upheld by the Supreme Court in Kamalu v. Umunna & Ors. (1997) 5 NWLR (Pt.505) 321 which the Supreme Court confirmed that the entire “Egbelu Umuogele” land of which the portion in dispute in this case be part of, was communally owned. In addition to the foregoing, Jonathan Daba who leased the land to the appellant clearly acknowledged in exhibit ‘F’ that he was from Umuogele family and was junior to the 1st plaintiff.

The defendant/appellant alleged that the same Jonathan Daba also sold several portions of the same Egbelu Umougele land to other persons who had developed their lands. Regrettably, not one of these persons testified on behalf of the defendant/appellant and no documents of title were produced.

The defendant/appellant produced exhibits ‘J’, ‘K’, ‘L’, ‘M’ and ‘N’ which were proceedings in respect of ‘Egbelu Umudaba’ land and claimed that the plaintiff were aware of these suits and did not indicate their interest in the land in dispute. “The defendants’ case was that the 1962 consolidated cases A/16/62 and A/57/62 did not relate to the land in dispute and he was unable to say anything about his vendor’s origin or history.

In conclusion, the defendant/appellant however admitted entering the land in dispute and erecting a building thereon.

In my consideration of the appeal I wish to adopt the defendant/appellant’s four issues as sufficient to dispose of the appeal as follows:

Issue No.1 is: Whether the court below was right when it held that the plaintiffs/appellants proved their case Grounds 3 and 4.

In order to determine the validity of the arguments proffered by the appellant, it is pertinent to bear in mind the cases presented before the trial court. In paragraph 4(1) of the further amended statement of claim it was pleaded as follows:

“4(1) The plaintiffs are descendants of Ogele their ancestor who first settled on the land in dispute. Ogele had two children – Amala and Daba who also farmed undisturbed on the land in dispute. Other ancestors of the plaintiffs, namely Aghughara, Oriaku Amala, Onwunji Daba Eheonwu Amala, Woko Echonwu, Akpom Oriaku, Wakamalu Ekweronye Anyatonkwu Echeonwu, Chief Wankudu Wakamalu and J. P. Kamalu at various times expressed acts of ownership on behalf of Umuogele on the land in dispute.

In accordance with the pleading, the 1st plaintiff gave evidence of the deforestation of the land by their ancestor Ogele as well as tracing their line of successions from Ogele to himself, the family head.

The traditional history was not challenged in the sense that there was no contending evidence of tradition by the appellant. Indeed, no question was put to the 1st plaintiff on the history he gave evidence on. In addition to the unchallenged evidence of tradition, the plaintiffs tendered the judgments in two consolidated suits A/16/62 and A/57/62 as exhibit A. The survey plan used in the consolidated suits was tendered and received as exhibit ‘B’. These suits clearly showed that “Egbelu Umuogele” was communally owned. The 1st plaintiff at page 36 lines 21-25 testified that the consolidated suits were in respect of the land in dispute. In addition PW3 a licensed surveyor testified as follows:

“Looking at exhibits B and (the disputed plan in the present suit). I can see that the two plans depict the same thing. Also the features on both are the same.”

The appellant called no surveyor and led in evidence in support of his pleading in paragraph 9(g) of the 2nd further amended statement of defence to the effect that:

“Suit No. A/16/62 and A/57/62 consolidated therein referred where in relation to some parcels of land other than the land in dispute.”

As indeed transpired, appellant regrettably failed to identify the parcels of land which he claimed were subject of the consolidated suits. As a matter of fact under cross-examination at page 79, lines 31-32 the record depicts thus:

“Question: What was the name of the land in the 1962 action

Answer: I do not know.”

The case presented by the appellant was that he purchased the land in dispute from Jonathan Daba who was the head of Umudaba family of Umuocham not a member of Umuogele family of the plaintiffs vide paragraphs 2 and 7(a) of the 2nd further amended statement of the relevant facts of plaintiffs/respondents’ cross-appellants case as made out in the further amended statement of claim at pages 88- 92 of the records were simply that the land in dispute called “Egbelu Umuogele” shown on plan No. ASNL/IM/59/LD received in evidence as exhibit C was the communal property of Umuogele family in Umuogele Umuocham in Osisioma Local Government Area of the then Imo State (now Abia State).

The land in dispute was inherited by the plaintiffs from their ancestors. Ogele deforested the land and lived on it with his two sons Daba and Amala. Subsequently, other ancestors of the plaintiffs namely, Aghugha, Oriaku Amala, Onwuryi Daba, Echeonwu Amala, Woko Echeonwu, Akpom Oriaku, Ehuruonye Amala, Eneigwe Oriaku, Wakamalu J.P., Kamalu and then Onwuala Kamanu the first plaintiff in that order exercised acts of ownership on behalf of the Umuogele family at various times.

The title of the plaintiffs’ family, it was then demonstrated, had been established in two consolidated suits A/16/1962 and A/57 /1962 in which Chief Nwankudu Kamalu on behalf of the plaintiffs’ family sued Jonathan Daba (who sold the land to the defendant/appellant) and other junior members of the family. The judgment of the court was received in evidence as exhibit A. The court restrained the defendants from selling portions of the land in dispute without the consent of the head of the family. Exhibit B was the survey plan No. CS/54/63 showing the “Egbelu Umuogele” land in dispute in the consolidated suits.

Chief Nwankudu Wakamalu and after him the first plaintiff as heads of Umuogele family did not consent to the grant of the land in dispute to the defendant by any member of their family. The plaintiffs had by several publications warned members of the public that the “Egbelu Umuogele” and Ohia Ihuala Umuogele” lands were the family lands of Umuogele people. One Anozie Ozurumba a staff of the state library services who testified for that, the parties do not belong to the same family known as Umuogele family of Umuocham.”

The claim by the appellant therefore that his vendor Jonathan Daba was from Umudaba and not Umuogele of the plaintiffs was, patently in my firm view, false as found by the court below. With this finding, the bottom was knocked off the appellants’ case since the foundation or indeed the root of title pleaded to wit: purchase from Jonathan Daba of Umudaba, was false.

Significantly, as pointed out in exhibit F, the said Jonathan Daba acknowledged that the 1st plaintiff was the head of the said family who testified to the following effect:

“In the 1962 action, the head of our family was Chief Nwankudu Kamalu. In his lifetime, the land was never partitioned. Up till now the land has not been partitioned. In our family we did not authorize the deceased 2nd defendant (plaintiff) to sell the land to the defendant. He has no authority to sell because the land is a communal one.”

The court below after referring to the findings in this regard, relied on the judgment of the Aba High Court in suit no. A/35/73 received in evidence as exhibit N. The plaintiffs however tendered exhibit Q, the judgment of the court below which set aside the decision of the trial High Court.

Exhibit Q (upheld by the Supreme Court in Kamalu v. Umunna & Ors. (1997) 5 NWLR (pt. 505) 321 Ogundare, JSC held as follows:

“It would appear also that the learned trial Judge did not consider the various letters tendered in evidence containing admissions by Jonathan Daba (alias Kamalu) of his membership of Umuogele family and the evidence to the appellants as his relations from the same family with him and that Nwankudu Kamalu was the head of that family.”

In the face of all these admissions and the judgment in exhibits C and E as well as the evidence of DW3 and DW4, it is difficult indeed to uphold the finding of the learned trial Judge of Idigbe, J. as he then was, in the consolidated suits on the communal ownership of the “Egbelu Umuogele” land, referred to the findings of the Court of Appeal in exhibit Q, regarding the family of the defendant’s vendor. The inability of the appellant to counter the plaintiffs’ overwhelming evidence that Jonathan Daba was from Umuogele family and had no right to sell family property without the consent of the head of the family, made it to have no difficulty in coming to the conclusion that the plaintiffs proved their case. The appellant then contended that since the 1st plaintiff gave evidence that the Supreme Court ordered a retrial of the consolidated cases and that the retrial had been concluded and the court held that the appellant’s predecessor in title, Jonathan Daba, should take the entire land, that ought to have been the end of the case of the plaintiffs/respondents.

With utmost due respect, this argument has no merit in that it is elementary that parties are bound by their pleadings and evidence led on unpleaded matters goes to no issue. See Adebisi v. Oke (1967) NMLR 64 and Orizu v. Anyaegbunam (1978) 5 SC 21.

The appellant in his 2nd further amended statement of defence at pages 101 – 106 of the record did not plead the retrial of the consolidated suits and the subsequent victory of his vendor. What he pleaded was that the suits related to some other parcels of land other than the one in dispute in the case in hand. The plaintiffs themselves did not plead the retrial of the consolidated suits and the subsequent victory of the appellant’s vendor. For this reason, I hold the view that the evidence goes to no issue, the law being settled that unpleaded facts elicited in cross-examination go to no issue. See

1. Kayode v. Odutola (2001) 11 NWLR (Pt.725) 659 at 674 Para C-F
2. Woluchem v. Gudi (1981) 5 SC 291 at 320
3. Ewarami v. A.C.B. Ltd. (1978) 4 SC 99 at 108,
4. Udechukwu v. Okwuka (1956) 1 FSC 170;(1956) SCNLR 189

No doubt, the retrial was pleaded in the amended statement of defence, subsequently in both the further amended statement of defence and the 2nd further amended statement of defence where the issue was abandoned and a new line of defence, to wit: that the consolidated suits related to other lands, was introduced. An abandoned issue cannot in law, be raised on appeal as the appellant now seeks to do. See Shell B.P. Ltd. v. Abedi (1974) All NLR 1 at 16 and Comptoir Commercial and S.P.R. Ltd. v. Ogun State Water Corporation (2002) FWLR 839 at 852 – 853; (2002) 9 NWLR (Pt.773) 629.

No judgment or proceeding evidencing the alleged retrial and subsequent victory of the appellant’s vendor was produced by the appellant or the plaintiffs. By the provisions of section 132(1) of the Evidence Act, Cap. 112 Laws of the Federation, 1990 the only admissible evidence of the alleged retrial and victory of the appellants’ vendor is the proceedings of the court. None was produced and none regrettably exists.

There is no doubt that the 1st plaintiff who asserted he was over 100 years when he was giving evidence must have been confused as to which case was tried. However,5th plaintiff threw more light on the matter when he testified thus:

“We the plaintiffs (won) we did not sue in 1973, it was the defendants who sued us in 1973, it was the 1973 action that was ordered for retrial by the Supreme Court.”

As demonstrably shown, the retrial which Jonathan Daba and his co-plaintiffs won was evidenced by exhibit N judgment in suit NO. A/35173, which was set aside by the Court of Appeal vide exhibit Q confirmed by the Supreme Court subsequently.

The stance of the appellant that there was a subsisting judgment stating that the plaintiffs had no interest in the land, is not borne out by the evidence before the court.

Before leaving this matter, it remains to point out that while the pleading of the appellant in relation to the consolidated suits is that they did not relate to the land in dispute, his stance on appeal is that they did and that there was a retrial of the suits and the appellant’s vendor was declared the owner of the land in dispute as against the plaintiffs. This surely, ought to be deprecated, since a party is not allowed to change his case at will in each court the proof of a case not being beyond all reasonable doubt but on the preponderance of evidence. The comment complained of was not the crux of the judgment and afortiori not the end of the matter. For, as this court pointed out in Idundun v. Okumagba (supra):

“it is settled law that any wrongful admission of evidence shall not constitute a ground

for reversing a decision unless the party complaining can show as well that with such

evidence the decision complained of would have been otherwise.”

Thus, in the case on hand, apart from merely asserting that the court below considered an unpleaded document, (in which case such a judgment cannot be allowed to stand) – see George v. U.B.A. Ltd. (1972) 1 All NLR CPt.2) 347, the appellant has not gone further as required by law to show that the judgment of the court below cannot stand without the alleged unpleaded document. In the absence of such a demonstration, this court cannot on the state of the authorities interfere with the judgment of the court below.

In the conclusion, the plaintiffs/respondents went further to submit and I entirely agree with them that the argument of the appellant is specious and untenable for a different reason. The whole argument revolves on the fact that a particular newspaper by which the Umuogele family warned members of the public, was allegedly unpleaded. Now, in paragraph 8 of the further amended statement of claim, the plaintiffs/respondents pleaded that:

“The members of the general public have been warned that Egbelu Umuogele land and Ohia Ihuala Umuogele land situate at Umuocham village are the family lands of the plaintiffs.”

In the light of the pleading above, I agree with the appellant’s submission that it was not compulsory for the plaintiffs/respondents to plead any document and the inability of the appellant to establish the title of his vendor which was directly in issue, the plaintiffs overwhelmingly proved their case as the court below rightly found. It is for the above reasons that I answer without hesitation issue No.1 in the affirmative.

Issue 2:

This issue asks whether the court below was right when it held that the defendant/appellant was a trespasser on the land in dispute.

The appellant’s complaint here pivoted on ground 8 of the grounds of appeal is:

“That the plaintiffs did not lead cogent and probative value evidence at the trial for their claim to trespass to be held (sic)”

With utmost due respect, I am of the firm view that the argument cannot be accommodated under ground 8 of the grounds of appeal. This is because there is no complaint dealing with the alleged failure of the plaintiffs/respondents to lead cogent and probative value evidence at the trial.

Equally without foundation is the argument that the court below erred in failing to review or appraise the issue of trespass as found by the trial court. No part of the ground of appeal deals with this. With due respect, the entire argument proffered by the appellant on this issue purportedly on the strength of the ground and its particulars even when given the most beneficial construction, is of no purport. The plaintiffs/respondents’ contention is that the appellant is deemed to have abandoned ground 8 of the grounds of appeal since the arguments canvassed ostensibly on the basis of the ground are at variance with the grounds as well as its particulars. See Eholor v. Osayande (1992) 23 NSCC (Pt. 2) 434; (1992) 6 NWLR (Pt.249) 524.

In my view, the ground of appeal should be struck out and arguments proffered thereon should be discountenanced. Be that as it may, without prejudice to the foregoing, the plaintiffs /respondents’ view as to the law of trespass enunciated in Amakor v. Obiefuna (1974) 1 All NLR 119 at 128 postulates thus:

“Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he had exclusive possession or he has the right to such possession of the land in dispute but once a defendant claims to be the owner of the land in dispute, title to it is put in issue and in other (sic) (order) to succeed the plaintiff must show a better title than (sic) of the defendant.”

Now, the finding of the court below is that the plaintiffs established that “Egbelu Umuogele” land is communally owned. This finding forthcoming as it does from the 1st plaintiff/respondent is borne out at page 37, lines 21- 29 of the records. See also page 51, lines 1- 21, page 54 lines 5 – 25 and the judgments – exhibits A and Q. The plaintiffs thus had thereby established their title to the land in dispute and as a matter of law, were in possession. See Umeobi v. Otukoya (1978) 4 SC 33. The pertinent question is, what was the basis of the appellants entry into the land in dispute,since there is no dispute he indeed entered the land without the consent of the plaintiffs. The defendant (appellants) title was based on exhibit H, a deed of lease granted to him by Jonathan Daba in his capacity as head of Umudaba family. By exhibit Q the court below held and this court upheld the judgment, that Jonathan Daba was indeed a member of the plaintiffs’ /respondents’ family. By exhibit F, he acknowledged that he was junior to the 1st plaintiff/respondent. The pivot of the appellant’s case collapsed with the finding of the court below in exhibit Q and it is little wonder that the appellant found himself in considerable difficulty in answering questions relating to the family of his vendor as well as his title. The appellant rather argues that he had established “copious and credible evidence of possession which the learned trial judge believed.”

Now, the law is settled that a trespasser does not by his act of trespass secure possession. See – Jimoh Adebakin v. Sabitiyu Odujebe (1972) 6 SC 208; (1973) NMLR 148.

2. Banjo v. Aiyekoti (1973) 4 SC 8

3.Odunukwe v. Administrator General (1978) 1 SC 25.

One would then ask: by what authority did the appellant enter the land in dispute How did his purported vendor become the owner of the land in dispute to enable him transfer title to the appellant It is pertinent to point out that while the appellant’s case proffered no cogent answer to these questions, the respondents obviously showed a better title to the land in dispute. Indeed, the appellant showed no title at all in that he (appellant) was not in lawful possession. Hence, he was rightly found to be a trespasser. See the case of Aromire v. Awoyemi (1972) 2 SC 1. The law is settled that where family property is conveyed as personal property, the purchaser gets no title to the property. See Oyebanji v. Okunola (1968) NMLR 221. My answer to this issue is accordingly rendered in the affirmative with the consequence that I uphold the finding that the appellant was a trespasser ab initio.

Issue 3

The appellant’s grouse in this issue is whether the comment by the court below that as far back as 1962, members of the public were warned to steer clear of Egbelu Umuogele land by the plaintiffs/respondents, caused a miscarriage of justice.

In arguing the issue, the appellant submitted that the court below was wrong in stating that:

“As far back as 1962, a notice was published in the Eastern State Express that prospective intended buyers should steer clear of the property known as Egbelu Umuogele.”

Because, what the plaintiffs/respondents pleaded was Eastern Express and not Eastern State Express. I agree with the appellant’s submission that if it be conceded for purposes of argument that the court below wrongly relied on the unpleaded document by virtue of section 227(1) of the Evidence Act, then-

“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. See Idundun v. Okumagba (1976) 9 -10 SC 227 at 245.

The excerpt from the judgment of the court below complained about is at page 278. Before the statement complained of, the court below had considered the respective titles of the parties from pages 266 – 270 of the record and found from exhibits ‘A’ and ‘Q’ that the land in dispute was communally owned, that the appellant had the onus of showing how his vendor became the exclusive owner of communal property and that the appellant knew nothing of his vendor’s family or the history of the land in dispute. Furthermore, at page 278 lines 24 – 26, of the record the court held thus:

“The head of the family should have witnessed such a sale but nothing of that sort took place. If the vendor sold when he could not validly sell, the buyer got nothing.” “Nemo dat quod non habet”

See also Boulos v. Odunsi (1959) SCNLR 591; Coker v. Animashaun (1960) ELR 71 and Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137 and Asuquo Ekpa v. Etim Utong (1991) 7 SCNJ 170 (1991) 8 NWLR (Pt. 197) 258 at 282.

In O. Solomon & Ors. v. A. R. Mogaji & Ors. (1982) 11 SC 1, Bello JSC as he then was at page 7 in his consideration of a similar case as the one in hand, particularly on the consequences of a contentious sale of family land, pertinently observed inter alia as follows:

‘It is pertinent to point out that contentious sale of family land may be classified under three heads.

Firstly, the law has been well settled that sale of family land by a member of the family, who is not the head of the family, without the consent of the head of the family, is void, see Ekpendu v. Erika (1959) 4 SC 79; (1959) SCNLR 186, Oyebanji v. Okunola (1968) NMLR 221; Akerele v. Atunrase (1969) 1 All NLR 201 and Lucan v. Ogunsusi (1972) 1 All NLR (Pt. 2) 41 at 45. Such cases are not relevant to the case in hand. Secondly, it is trite law that sale of family land by the head of the family without the consent of the principal members of the family is avoidable at the instance of the non-consenting members of the family. See Esan v. Faro 12 WACA 135; Ekpendu v. Erika (supra), Aganran v. Olushi (1907) 1 NLR 67 and Mogaji v.Nuga (1960) 5 SC 107; (1960) SCNLR 219.

In all these cases it has been accepted that the head of the family had sold the family land as such which is not the case in these proceedings.”

It is for this reason that I agree with the appellant’s submission that even if the comment made by the court is found to have been wrong, the judgment is still sustainable because the gravamen of the decision was that:

“Once the appellants proved and gave unchallenged history of the land that it is communal land which cannot be alienated by any of them without authority, that Jonathan Daba is one of them and not the head of the family, that he made spirited efforts to repudiate the date when he realized his error, then it is expecting too much further from the appellant to prove more. Indeed, they are not allowed to change their case in each court in the hierarchy of courts.” See Onyia Nwagu Ngwu & 6 0rs. v. Ugwu Onuigbo & 3 Ors. (1999) 13 NWLR (Pt. 636) 512; Akuneziri v. Okenwa (2000) 15 NWLR (Pt. 691) 526 and Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248.

The appellant’s other contention is that the plaintiffs did not show that the land had not been partitioned even if it was a communal one and then the appellant’s vendor had no consent to sell. The first point to be made here is that the onus is on the party who asserts that communal property belongs to him, to show how exclusive ownership devolved on him. See

1. Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182;
2. Bamgbose v. Oshoko (1988) 2 NWLR (Pt. 78) 509 .

This, the appellant did not do. As a matter of fact, he (appellant) displayed arrant and abysmal ignorance of the histories of the land and his vendor’s title. See page 262, last paragraph and page 270 of the judgment of the court below. Irrespective of the failure of the appellant to discharge the onus of showing how he became entitled to the communal property, the 1st plaintiff at page 37, lines 21-29 of the record put the matter beyond peradventure when he testified as follows:

“In the 1962 action, the head of our family was Chief Wakudu Wahamalu (sic). In his life the land was never partitioned. Up till now the land has not been partitioned. In our family we did not authorize the deceased 2nd defendant to sell the land to the defendant. The deceased 2nd defendant had no authority to sell because the land is a communal land.”

In conclusion, I hold that on the basis of the unchallenged evidence of inheritance by succession, the acknowledgment of the communal nature of “Egbelu Umuogeje” land in exhibits ‘A’, exhibit ‘Q’ judgment of the court below regarding the appellant’s vendors’ status once the relevant fact, namely that members of the public had been warned not to go onto the land having been pleaded, any document in support of the fact pleaded was automatically admissible as evidence of the fact pleaded. See:

1. Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt. 136) 74
2. Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641
3. Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148
4. Allied Bank of Nigeria Ltd. v. Akubeze (1997) 6 NWLR (Pt. 509) 374

The foregoing therefore renders the appellant’s argument futile and unsustainable. Documents need not be specifically pleaded once the material fact,which the document evidences, is pleaded. Whether it was in Eastern State Express or Eastern Express, the 1962 public warning was pleaded and supported by exhibit D received in evidence without objection. The court below, in my view, was entitled to appraise the available documentary evidence and draw conclusions therefrom. Exhibit D referred to the 1962 publication and the appellant did not challenge the assertion at the trial.

My answer to this issue is also rendered in the negative.

Issue 4 asks whether the court below erred in failing to consider the defences of estoppel and standing by.

In also answering this issue in the negative and thus resolving it against the appellant, it is important to point out that the plaintiffs/ respondents were the appellants at the court below and that it was their own complaint that the court below limited itself to, having regard to all the circumstances. A careful perusal of the briefs at the court below reveals that no issue was formulated by any of the parties on estoppel and standing by. That being so, the court is limited by the issues raised by the parties. See Ojo – Osagie v. Adonri (1994) 6 NWLR (Pt. 349) 131.

It is correct however to say that there were arguments on these matters in the brief filed by the appellant in that court. See pages 13 – 16 of the appellant’s brief filed in that court and how that court (court below) did not specifically make a pronouncement on them. That court however made the following observations at page 262 line 33 to page 263, lines 1 – 4 that:

“Later the same Jonathan Daba and one Augustine Mbakwe demolished his house and being reported to the police they were charged and subsequently convicted and they were asked to leave the land. Mbakwe sued Jonathan Daba as the 1st plaintiff was very regular in court.”

The court clearly adverted to the matter and proceeded to conclude as follows:

“I believe that all efforts were made to rescind the contract of sale but to no avail. The appellants proved the ownership of the land that the respondent had adverse possession by way of trespass hence the action. Once the purchase is defective, the deed of lease is of no use. It cannot confer a defective title. Where defendants are led into possession by a family head without the family consent, the defendants are trespassers “ab initio”.

I agree with the appellant’s submission that even though the court below did not specifically make a pronouncement on the matter, it is subsumed in the conclusion of the court hereinbefore referred to. See Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 at page 146. In that regard, I agree with appellant’s submission that failure to specifically deal with the arguments which were not part of the live issues for determination by the court below, has not occasioned a miscarriage of justice. The law is settled that even where the court below failed to consider an issue or issues for determination, the decision arrived at by that court cannot be set aside unless there is a miscarriage of justice. See 7UP bottling Co. Ltd. & Anor. v. Abiola & Sons Bottling Co. Ltd. (2001) vol. 29 WRN p. 99; (2001) 13 NWLR (Pt.730) 469.

The learned trial Judge at page 136 of the record held as follows:

“It is in evidence that when the defendant was fighting the high court action, the plaintiffs Nos. 1,3,4,5 were attending court to listen to the proceedings. It is also in evidence that throughout the period, the plaintiffs did not apply to be joined to protect their interest over the land. The plaintiffs cannot now be heard to complain having stood by to watch the defendant fight the battle alone. The plaintiffs therefore are estopped from denying the defendants title to the land in dispute. See Wytcherley v. Andrews (1871) LR 2 P&M 327; Ojiako v. Ogueze (1962) 1All NLR 58; Ekpoke v. Usilo (1978) 6 – 7 SC 187; Etiti v. Oguta (1976) 12 SC 123; Ogundiani v. Araba (1978) 6-7 SC 55; Abuakwa v. Adanse (1957) 3 All ER 559; Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1 at 15; Alashe v. Olori Ilu (1964) 1All NLR 390 at 396; Joe Iga v. Ezekiel Amakiri (1976) 11 SC 1 at 12 and Wilson Etiti v. Peter Ezeobibi (1976) 12 SC 123 at 131.

Now, the crucial question is, which High Court action did the trial court have in mind The appellants tendered exhibits J, K, L, and M at the trial. Exhibit J was a Magistrates Court proceedings,namely Commissioner of Police v. Jonathan Daba (the appellants’ vendor) and A. O. Mbakwe. This of course has no bearing on the High Court matter referred to by the trial court hereof. Exhibit K was a matter between A. O. Mbakwe and Jonathan Daba and in which appellant was not a party but to which the trial Judge made a reference regarding the refund of payment made. It is patently clear that this could not have been the matter referred to by the trial Judge. Exhibit L relates to a suit instituted by one Allwell Daba against the appellant and Jonathan Daba (appellant’s vendor). That suit was struck out for want of prosecution.

Finally, exhibit M which was said to be between the appellant’s vendor and the appellant was said to be still pending. It is pertinent to point out that none of the proceedings tendered by the appellant related to the land in dispute while none of the decisions, if any, made any definite pronouncement on title to “Egbelu land” subject of these proceedings. The interest of the plaintiffs/respondents (Umuogele family) was never in issue and there was no decision on it. The pleadings of the appellant is that he purchased the land in dispute from Jonathan Daba who had no relationship with the respondents. To exemplify that there was a misconception of the case of the parties, it was argued how the appellant who pleaded that his vendor belonged to a different family called Umudaba that had no relationship with the respondents’ Umuogele family, turned round to plead that his vendor belonged to a different family called Umudaba that had no relationship with respondent’s Umuogele family. Appellant’s new line of argument, before this court and premised on the ground that Jonathan Daba was acting on behalf of Umuogele family, and so parties it is contended, are with respect, bound by their pleadings and that a party is not allowed to change his case in each court in the hierarchy of courts on the authority of Akuneziri v. Okenwa (supra) at p. 551. As the appellant never pleaded that the respondents were estopped because Jonathan Daba was a member of the Umuogele family of the respondents but that he was allowed to hold himself out as head of Umudaba family, the owners of “Egbelu Okoro Woha Land”. Thus, as can be seen, the appellant is, with respect, attempting to change his stance in his pleading in this court.

To worsen matters, none of the respondents was challenged in the witness box over that fact of their attendance at court when the suits were being fought, indeed, it was only after the respondents had closed their case that the appellant surreptitiously introduced paragraphs 9(g) and 9(c) into the 2nd further amended statement of defence without leave of court. The appellant purported to make amendments as consequential amendments whereas such consequential amendments must of necessity relate to the amendment made by the other party and is not a license to amend generally. See

1. Squires v. Squires (1972) 1 All ER 891
2. Supreme Court Practice (1988) page 347 para. 20/3/4/7.

This accounts for why the paragraphs relied upon by the appellant for his contention on the question of estoppel and standing by were not even before the court.

It is for these reasons among others that I resolve this issue against the appellant and so I dismiss this appeal with costs assessed against the appellant in the sum of N10,000. For the cross-appeal, the two issues submitted as arising for our determination are;

1. Whether the court below was right when it held that exhibit P was wrongly received in evidence.
2. Whether the Court of Appeal’s failure to determine the issue raised by ground II of the grounds of appeal occasioned a miscarriage of justice.

Having dismissed the appeal, and having regard to all I have hereinbefore stated, I have no hesitation in allowing albeit inconsequentially the cross-appeal.

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SC.139/2001