Antonia E. Umoffia Vs M.c. Ndem (1973)

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UDO UDOMA, JSC 

This is an appeal from the judgment of the High Court of South Eastern State holden at Calabar. In Suit No. C/49/1969 the plaintiff, herein respondent, claimed against the defendant also, herein appellant, “recovery of possession of a piece of land at No. 35 Webber Street, Calabar.”

Throughout this judgment, the terms “plaintiff’ and “defendant” respectively will be retained wherever applicable. Pleadings were ordered and duly filed and delivered. As our decision in this appeal must, of necessity, turn on the pleadings in relation to the evidence led and considered by the learned trial Judge, we consider it necessary to set out in some detail certain parts of the pleadings which were filed and relied upon by both the plaintiff and the defendant.

For this purpose we consider only paragraphs 1, 2, 3, 5 and 7 of the statement of claim and paragraphs 3, 4, 5 and 9 of the statement of defence relevant and sufficient. In paragraphs 1, 2, 3, 5 and 7, the plaintiff averred as follows:- “1. Once there lived two sisters Madam Efiom Ene (alias Nkoyo Ene) and Ukpong Ene. In 1931 they jointly obtained a plot of land on a lease from the Efut Combined Council. The plot of land is known as 35, Webber Street, Calabar. The lease was in 1946 converted into a freehold property upon payment of a lump sum of money and customary drinks to the then Muri of Efut, Chief Asuquo Nyong Odionka.

2. The land is reproduced by the colour pink on plan No. EPS/732 (LD) dated 10th January, 1970 prepared by Mr. Okon E. Eyo, licensed Surveyor. 3. The sisters jointly built a house on the land and lived there with their children until they died. Madam Efiom Ene died in 1963 and Madam Ekpong Ene in 1968. The plaintiff and L.O. Ibok are children of Madam Ukpong Ene. 5. In 1962 the plaintiff had submitted to the Calabar Urban District Council the plan of a concrete building he proposed to erect on the land, and the plan was approved. 7. Meanwhile, the time allowed by the Calabar Urban District Council for the putting up of the concrete building on the approved plan had run out; and the plaintiff had to apply in September, 1969 for an extension of time which was duly granted.”

In answer to these averments the defendant pleaded in paragraphs 3, 4, 5, and 9 of her statement of defence in the following terms:- “3. It is denied that the two women mentioned in paragraph 2 above ever obtained a lease of the plot of land now known as 35, Webber Street, Calabar from the Efut combined Council jointly or singly in 1931 or at all.

It is further denied that they converted any such lease into a freehold in 1946 or at all. 4. Paragraph 2 of the statement of claim is admitted. It is added however that defendant’s beacon stones numbers are omitted from the said plan. Counting from the North West, the beacon stones are SEB 142, North East SEB 143, South East SEB 144 and South West SEB 145.  5. In answer to paragraph 3 of the statement of claim, defendant first went into possession of the land in dispute in 1968. There was no building on the land in dispute which was a vacant plot. By a deed dated 20th day of October, 1969, the defendant was granted the land in dispute rent free after making the customary gifts. Defendant is a descendant of the Efut families and was such granted the land in dispute by the Efut combined Council. Muri Edet Edem, the present head of Efut and Chairman of the Efut combined Council signed the deed.

The said deed is registered as No. 10 at page 10 in Volume 1 of the land registry at Calabar. 9. Paragraph 6 of the statement of claim is denied. Plaintiff has never been in possession of the land in dispute and on the 20th October, 1969 was not in possession of the land in dispute and was not entitled to be in such possession. When defendant took possession of the land in dispute, it was vacant.” The case duly came up for hearing. It was tried by Bassey, J., (as he then was).

In the course of her testimony, the plaintiff produced and sought to tender in evidence a document purported to be a deed of grant which she described as “agreement concerning the land in dispute” which was handed over to her by her mother. The consideration for the grant of the land in dispute, according to her and as reflected in the document, was the sum of £5.

There was an objection in point of law by the learned counsel for the defendant on the ground that the document being an “instrument” was inadmissible in evidence for non-compliance with Section 15 of the Land Instruments Registration Law Cap. 72 of the Laws of the former Eastern Nigeria, Volume 4, 1963, as applicable to the South Eastern State. In his ruling, the learned trial Judge apparently upheld the objection, but nevertheless admitted the instrument, according to him, “not to show that title has passed but as a receipt for money paid.” It was marked Exhibit 3 in the proceedings.

Thereafter the trial continued and the plaintiff and her witnesses gave oral evidence of the grant of the land in dispute to her predecessors in title and as to how the defendant later took possession of the said land; hence her claim to recover possession thereof. Evidence was also heard from the defendant and her witnesses. The learned trial Judge, after a review of the whole of the evidence, including the instrument (Exhibit 3) which he apparently described as an amorphous document, and the oral testimony concerning the grant of the land in dispute to the predecessors in title of the plaintiff held: (1) that the plaintiff’s predecessors in title had been in long possession of the land aforesaid before vacating it; and (2) that the custom of the Efut, which he found established that when a grantee of land according to native custom vacates it, the land must revert to the grantor, was repugnant to the principles of equity and good conscience. He therefore overruled the custom.

Thereupon he entered judgment for the plaintiff in terms of her claim and ordered that she should recover possession of the land in dispute. The defendant has now appealed to this court against that judgment on a number of grounds. The ground argued before us and which we consider of substance and worthy of serious consideration which, if sustained, may dispose of the appeal, may be stated as follows:- “That the learned trial Judge was wrong in law to have entered judgment for the plaintiff for possession of the land in dispute in the absence of proof of any grant of the land in dispute either to herself or to her predecessors in title either as a leasehold or freehold in terms of the averments contained in paragraph 1 of her statement of claim.

In his submissions on this ground, Mr. Davies, learned counsel for the defendant, contended that the whole basis of the plaintiff’s claim to be entitled to the possession of the land in dispute was that in 1931, a lease of the said land was granted to her predecessors in title; that in 1946, the leasehold property was converted to freehold property upon the payment, by her predecessors in title, of a lump sum of money; that at the trial a document (Exhibit 3) was produced, purported to be an instrument which had conveyed to the plaintiff’s predecessors in title the freehold estate in the land; and that the document, according to the learned trial Judge, was inadmissible in evidence for that purpose on the ground of law but merely as evidence of the receipt for the sum of £5.

That being so, learned counsel submitted that the whole basis of the plaintiff’s claim had been destroyed, oral testimony not being admissible to establish a freehold grant, and therefore the claim of the plaintiff ought to have been dismissed. We think these submissions are well founded. They are sound. They are virtually unanswerable. That much was conceded by Mr. Adesanya, learned counsel for the plaintiff. We have repeatedly and consistently stated that cases in the High Court, which are fought on pleadings, must be conducted in accordance with the averments contained in such pleadings.