Chief Gibson Pencyl Orunengimo & Anor V. Madam Margaret Egebe & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C

The judgment is sequel to an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on the 22/5/2002. The judgment itself dismissed the appeal against the judgment of the trial court delivered on the 14/2/86. The appellants herein who were the plaintiffs were also the appellants at the court below. The writ of summons itself was issued at the Port-Harcourt Division of the High Court of Rivers State on the 13/11/75. They sued for themselves and on behalf of Ikoni family of Akakumama Okoroma in Brass Division then of Rivers State but now of Bayelsa State. The defendants therein are the respondents both at the court below and in this court.

In paragraph 12 of the statement of claim, the plaintiffs/ appellants claimed as follows:

Wherefore the plaintiffs claim as against the defendants is for a declaration of title to that piece or parcel of land known and called Okameinmo Kiri situate at Akakumama Okoroma village Membein Brass Division of the Rivers State and verged Red in Plan No. ESA/R/407/76 LD dated the 26th of January 1976 in the peaceful possession and ownership of the plaintiffs and of annual value of N20.00 (Twenty Naira).

The pleadings on which the case was tried are the statement of claim at pages 14-18 of the record and the amended statement of defence at pages 85-92 of the record. In the judgment on the 4/2/86 the learned trial Judge Opene, J (as he then was) dismissed the plaintiffs’ claim. The appeal to the court below was also dismissed. Before this court the parties through their counsel filed and exchanged their briefs of argument. The appellants’ brief was prepared by B .E. Nwofor, SAN and it was filed on the 24/12/2002. The respondents’ brief prepared by Isaac O. Kamalu was filed on the 13/10/2004.

In the appellants’ brief Mr. Nwofor SAN proposed the following issues for determination:

(1) Whether the certificate of purchase tendered in evidence and marked exhibit D2 was lightly admitted in evidence, and if not, was there any legal evidence on record to support the concurrent findings of the Courts below that Arose gave consent to the sale of the disputed land to Donald Egebe

(2) Whether the concurrent findings of the courts below that plaintiffs/appellants’ family sold the land in dispute to Donald Egebe, the defendants/respondents’ ancestor, is supported by the pleadings and evidence on record and accords with the relevant and applicable principles of law

(3) Whether the court below was right in failing to grant declaration of title to the land in dispute in favour of the plaintiffs/appellants and in confirming the trial court’s decision dismissing the action

On his part Mr. Kamalu formulated two issues for determination in the respondent’s brief of argument. The two issues are:

(1) Whether exhibit D2 (Certificate of Purchase) was properly admitted in evidence.

(2) Whether on the facts and evidence in this case the Court of Appeal (Port-Harcourt Division) was right in upholding the conclusion of the trial court that the appellants are not entitled to a declaration of title as claimed. On the 17/4/2007 when we heard this appeal learned senior counsel for the appellants, Mr. B.E.I. Nwofor told this court that as a minister in the temple of justice he would no longer pursue the appellants’ issue one on the admissibility of the Certificate of Purchase exhibit D2 and went on to concede the position of the respondents that the said document was admissible and rightly admitted. He then proceeded to proffer some oral arguments in amplification of the appellants’ issues two and three, the substance of which was that, in the light of the pleadings and evidence, the concurrent findings of the courts below about the sale of the property was not supported by the evidence and therefore perverse. Mr. Kamalu for the respondents argued to the contrary.

Learned senior counsel for the appellants proffered, in substance, the following submissions. He referred to the pleadings in paragraphs 3, 3a and 11 of the statement of defence and submitted that by reason of the contradictions therein, the respondents were not certain as to the particular land bought and the precise person from whom Donald Egebe bought the land and therefore that their case of the alleged sale collapsed and crumbled right from their pleadings. Every pleading, it was argued, should be concise, precise, clear and definite and reliance was placed on Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351 at 364, Bullen and Leake and Jacob’s Precedents of Pleadings 12th Edition Page 39 and Re Parton, Townsnd v. Parton (1882) 30 WR 287. Still on the pleadings in paragraphs 3, 3a and 11 of the amended statement of defence, it was the further submission of learned senior counsel that the respondents failed to specifically plead the alleged sale or other essential ingredients of a valid sale and transfer of absolute title to a family land either under customary law all the received English law. Learned senior counsel enumerated six essential ingredients of a valid sale and transfer of absolute title to family land under customary law and submitted that the appellants failed to plead these ingredients either in respect of “Ogiogio Kiri” or in respect of “Obukiri”. On the duty on the respondents to plead the essential ingredients and the effect of the failure so to do he relied on, Abayade Cole v. Folami (1956) SCNLR 180 at 182-183; Erinosho v. Owokoniran (1965) NMLR 479 at 483; Folarin v. Durojaiye (supra); Taiwo v. Ogunsanya (1967) NMLR 375; Ajadi v. Olarewaju (1969) 1 All NLR 382 at 389, and Egonu v. Egonu (1978) 11’9712 SC 111 at 131’97132. He referred to parts of the evidence at the DW1 and DW2 and contended that they were facts not pleaded and therefore inadmissible and urged that they be either expunged or ignored as evidence on facts not pleaded goes to no issue. He further referred to the evidence of the DW2 at page 132 of the record to the effect that Donald Egebe paid ‘a320.00 as against the version that the sale price was ‘a370.00 out of which he paid ‘a365.00 and submitted that the contradiction nullified the probative value on the purchase price. Learned senior counsel further referred to the evidence that only part payment of ‘a365.00 was paid leaving a balance of E5.00 and submitted that a sale predicated upon part payment and delivery of possession without payment of the full purchase price is bad in law and relied on David Ejiniyi v. Amusa Adio (1993) 7 NWLR (Pt. 305) 320 at 338, Odufuye v. Fatoke (1977) 4 SC 11 at 23-24. Still on this question of essential ingredients of a valid sale, learned senior counsel argued, rather strenuously that the appellants failed to plead the actual delivery and symbolic handling over of the land after payment of the purchase price and which failure is fatal to the case of the appellants. He relied particularly on Uzochukwu & Ors. v. Amaghalu Eri & Ors. (1997) 7 NWLR (Pt. 514) 535 at 550-557; Edward Egonu v. Madam Eziamaka Egonu (1978) 11-12 SC 111 at 331-132 and Erinosho v. Owokoniran (1965) NMLR 479 at 483. It was argued that the legally admissible evidence on facts properly pleaded was grossly insufficient to support the concurrent findings of the two courts below and which findings are therefore perverse.

Under the appellant’s issue three reference was made to the finding by the court below that the appellants’ family originally owned the land and submitted that having so found, the burden of proving that the appellants have been divested of the ownership of the land rested on the respondent and that they failed to discharge the said burden. The gist of the arguments of Mr. Kamalu for the respondents was as follows. He submitted firstly that parties are by their pleadings required to state only the material facts and not the evidence to establish those facts. He relied on Order XXX 111 Rule 5 of the High Court Rules of Eastern Nigeria then applicable at the time of trial at the Rivers State High Court, Okagbue & Ors. v. Romaine (1982) 13 NSCC 130 at 137; Oguma Associated Companies (Nig.) Ltd. v. I.B.WA. (1988) 1 NWLR (Pt.73) 658, (1988) 19 NSCC (Pt. 1) 395. It was also submitted that in order to ascertain the case of a party as pleaded, the entire pleadings must be read and not paragraphs in isolation. Reliance was placed on Okochi & Ors. v. Animkwoi & Ors. (2003) 18 NWLR (Pt. 551)1 at 24; Mobil Producing (Nig.) Unlimited v. Francis Johnson Asuah (2001) 16 NWLR (Pt.740) 723 at 760. Learned counsel referred to the address of counsel for the appellants at the trial court and contended that the issues between the parties were clearly identified on the state of the proceedings and that the trial court also clearly identified same. It was counsel’s further submission that the issues raised here in counsel’s address were not issues raised in the pleadings and if the appellants wanted to raise them, they ought to have filed a reply to the statement of defence. He relied on Gabriel Iwuoha & Anor. v. Nigeria Postal Services Ltd. & Anor. (2003) 8 NWLR (Pt. 822) 308 at 340-341, Elf Petroleum (Nig.) Ltd. v. Onyekwelu (2002) 17 NWLR (Pt. 797) 461 at 485.