Dr. A. A. Nwafor Orizu V. Francis E.A. Anyaegbunam (1978) LLJR-SC

Dr. A. A. Nwafor Orizu V. Francis E.A. Anyaegbunam (1978)

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In the High Court of the Onitsha Judicial Division in the former East Central State (now Anambra State), the plaintiff (the respondent herein) claimed from the defendant (the appellant herein):-

“(a) a declaration of title to the piece or parcel of land known as and called Okpukpuite measuring about 334 feet situate in Ndiakwu, Otollo, Nnewi, in Onitsha Division, in Onitsha Province, in the Federation of Nigeria;

(b) 500 pounds damages for trespass to the said land by the Defendant, his servants and agents, and their destruction of economic tress and crops on the said land, including uprooting and/or cutting down of kolanut trees, iroko trees, palm trees, Ukaka trees, breadfruit trees, peak, mango and orange trees, cassava plants, and the pulling down of the walls of an old house belonging to the Plaintiff’s vendor, Nwaudorie Amaechighi;

(c) perpetual injunction to restrain the defendant, his servants and/or agents from further trespassing or committing acts of waste or wanton destruction of the said land or of interfering in any way with the Plaintiff’s user, ownership and possession of the said land.”

The land in dispute is edged yellow in the two plans, Exhibits A and L put in evidence by the plaintiff and defendant respectively. The identity of the land in dispute was in fact not contested.

The case of the plaintiff was that, in 1951, he bought a piece of land, of which the land in dispute is part, from one Nwaudorie Amaechighi, who at the time of the sale, lived on the land. Plaintiff stated that the sale to him by Nwaudorie Amaechighi was witnessed by five persons including a representative of the Nwosu family, one Irunwaze Nwosu; the land in the occupation of Nwaudorie Amaechighi originally belonged to the Nwosu family. Chief Ezedumegwu Nwosu had a vast expanse of land and Nwaudorie Amaechighi was his faithful servant. Chief Ezedumegwu Nwosu granted Nwaudorie Amaechighi a portion of the land in appreciation of the latter’s services and the plaintiff’s claim was that the land in dispute, that is, the portion edged yellow in the two exhibits aforesaid, was the area granted by Ezedumegwu Nwosu to Nwaudorie Amaechighi and which Nwaudorie Amaechighi later sold to him. The plaintiff relied for his proof of title on a Deed of Conveyance dated 9th August, 1961, tendered as Exhibit B and to which was attached an agreement dated 23rd April, 1951, and a survey plan, tendered as Exhibits B1 and B2 respectively.

The defendant did not dispute that Ezedumegwu Nwosu made a grant to Nwaudorie Amaechighi but his case was that the land in dispute did not form part of that grant. While denying that he destroyed the food crops and economic plants of the plaintiff, the defendant however, admitted going on the land in dispute, uprooting trees (though these were not stated to be economic trees) and constructing roads and a football field on the land. His defence was that he did all these in the exercise of his right of ownership of the said land in dispute. According to the defendant, Chief Henry Nwosu, who was the successor to Chief Ezedumegwu Nwosu, made a voluntary grant of a piece of land, of which the land in dispute is part, to him in 1949, two years before the plaintiff bought the land in dispute from Nwaudorie Amaechighi. The defendant further said that he got the grant for the purpose of building a school. However, the defendant admitted that he neither took measurements nor surveyed the land granted to him by Chief Henry Nwosu either at the time of the grant or subsequently.

After a consideration of the evidence before him, the learned trial Judge held, and we agree with him, that the question as to who owns the portion of the land in dispute, that is, the area verged yellow, on the two plans Exhibit A and L in these proceedings “would ultimately turn on the ascertainment of the land granted by Chief Ezedumegwu Nwosu to Nwaudorie.” The learned Judge regarded this as a primary question, especially as the grant which was made by Nwosu to Nwaudorie was prior in time to the grant made by the Nwosu Family to the defendant. The judge said:-

“If the grant made to Nwaudorie included the portion in contest and the sale to the Plaintiff was valid, then the principle that a grantor cannot derogate from his grant would apply….It is a settled rule that the acts of a predecessor in title bind all who claim by and through him. So, if the Plaintiff can establish, not just what he bought, but more than that, that what he bought was what was granted to Nwaudorie, then the answer to Chief Henry Nwosu’s grant to the Defendant, even if the Defendant can show the grant, is nemo dat quod non habet.”

The learned trial Judge accepted the evidence of Benedict Nwosu, who was called as the second defence witness, and who said that no one in the family knew the vast expanse of the Nwosu family land apart from Nwaudorie who had that knowledge by virtue of the fact that he lived on the land as caretaker to the family land. The judge held, accepting the evidence of Benedict Nwosu, that as a resident caretaker of the land, Nwaudorie ought to know the land well and that he, Nwaudorie, would know its extent, its boundaries, and its natural features.

The learned Judge then examined the evidence in regard to the grant that was made to the defendant by Chief Henry Nwosu. He accepted that there was a customary grant to the defendant by Chief Nwosu; he believed that Nwaudorie led one Olobunandu – during a visit to the locus in quo following an attempted extra – judicial settlement – to show the defendant the land Chief Henry Nwosu granted to him. He found, however, that the land in dispute was not the land that was shown to the defendant for two reasons, firstly, that Nwaudorie would not have shown (or allowed Olobunandu – whom the defendant claimed to be the person who identified to him, at the time, the area of land granted to him by Chief Nwosu – to show) the defendant an area of land which would include his (that is Nwaudorie’s) own habitation; and secondly, that he accepted the evidence of Chief Benedict Nwosu to the effect that the land which Nwaudorie showed to the defendant excluded the part that was occupied by Nwaudorie.

Having made these findings of fact, the learned Judge then examined the issue of the admissibility of the Deed of Conveyance, and other documents, which, as we have earlier stated, the plaintiff relied upon to prove his title to the land. The documents involved in this exercise are Exhibits B, B1 and B2. When in the course of his evidence, the documents were tendered by the plaintiff, the defendant objected to their admissibility. The learned trial Judge ruled against the objection and said as follows:-

“As regards the first objection that the documents said to be tendered combine two agreements, namely, agreement made in 1931 and another agreement made in 1961, I do not see any substantial legal objection since the law regards them as one document. On the second objection that the document sought to be tendered is not pleaded, perhaps all that can be said to this objection is not that the document is not specifically pleaded, see paragraph 3 of the claim, but that the document was not fully pleaded. There is no rule of law that stipulates that lack of full pleadings would disentitle a party from putting in evidence a document he has referred to in Statement of Claim.”

Learned counsel for the defendant raised the issue again in his final address and the learned trial Judge gave the matter considerable attention and dealt with it at length. He said:-

“The matter does not end here; learned counsel for Defendant had raised some important questions of law which I will now consider. Objection was taken to the admissibility of Exhibit B to which were attached Exhibits B1 and B2. I had overruled the objection but learned counsel in his closing address urged the court to expunge the exhibit and evidence relative thereto. Learned counsel pointed out that if Exhibit B is excluded then Exhibits B1 and B2 would disappear with it and the lineal dimensions given in evidence by the Plaintiff would become secondary evidence and as no basis was laid for it, it too would be expunged and the Plaintiff would have failed to establish his case.

Exhibit B is a Deed of Conveyance executed by Nwaudorie in favour of the plaintiff dated 8th August, 1961, and registered as No. 41 at page 41 in Volume 257 in the Lands Registry, Enugu, and dated 22nd August, 1961. The agreement for sale of the land between the same parties made in April 1951, was attached to Exhibit B and marked Exhibit B2. Both Exhibits B1 and B2 bear the imprint of stamp of the Registrar of Deeds.

The objection by learned counsel was that Exhibit B1 was not registered as required by S. 15 of the Land Instruments Registration Law (i.e. Cap. 72 of the Law of Eastern Region of Nigeria in Volume IV of the 1963 Edition of the Laws of Eastern Region of Nigeria, applicable in these proceedings) and that its attachment to Exhibit B was a calculated attempt to circumvent the mandatory provision of the section. It is common ground that Exhibit B1 is an instrument affecting interest in land subject to registration if required to be used in evidence. It ought to be made clear that Exhibit B1 is an instrument affecting land granted under customary law and that as far as customary law was concerned there had been the ceremony of goat slaughter which under customary law perfected the sale and rendered it irrevocable. It seems to me that this solemn ceremony creates as such evidential validity of legal title to land sold or granted under customary law as S. 15 of the Land Instruments Registration Law does in respect of land held under the general law. Hence, in my view registration in voluntary areas, that is, areas where land transactions are conducted according to native law and custom, is important only in cases of priority where adverse claims are in conflict. Thus even if Exhibit B would be inadmissible the plaintiff can still rely on proof at customary law unless the defendant who raised the objection showed that the land lies in a compulsory area in which case the only admissible evidence of title is evidence of registration. Thus oral testimony of conveyance of land by sale or grant under customary law is admissible to prove title but if a party seeks to tender an instrument affecting land held even under customary law which is not compulsorily registrable he must show registration.

In the present case the plaintiff sought to rely on Exhibit B1 which is a conveyance of land held under customary law hence he must prove registration. His contention is that both Exhibits B1 and B2 are attachments to Exhibit B which is a duly registered instrument. Learned counsel objected to Exhibit B going in as evidence on which the plaintiff can rely on the ground that it is a document made ante litem motem and referred to S. 90(3) of the Evidence Law. That section reads:-

‘Nothing in this section shall render admissible evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’

Proceedings were pending with respect to this dispute before June 1961; in August 1961, Exhibit B was made and registered and learned counsel submitted that it was made and registered ante litem motem and therefore shut out by S. 90 (3). It is my view that if a fact did not exist when proceedings are pending or anticipated and such a fact was brought into existence even before litigation was in contemplation the court would hold the view that it was manufactured to harness the case and would exclude it. But if a fact existed before proceedings were pending or anticipated it is not ante litem motem if that existing fact is made admissible evidence by stamping or registration or in any other way treated (sic) to render it in compulsory registration. This is fulfilling the law rather than circumventing it. The objection was correctly overruled and I cannot accede to expunge Exhibit B. Apart from the observations I made regarding Exhibit B1 once Exhibit B is validly admitted its attachments go in with it. See S. 9 (2) of Land Instruments Registration Law. Furthermore, it is my view that once an instrument has been duly registered under the relevant provisions of the Land Instruments Registration Law its admissibility is not open to question in proceedings in which the Registrar of Deeds is not a party. The principle omnia praesumuntur legitme facta donoc probetur in contrarium applies. (Square brackets supplied by this court.)

The learned trial Judge finally found for the plaintiff and held that the plaintiff was entitled to the declaration sought and this he granted in terms of his claim. He also granted the injunction sought and he assessed damages for trespass at N250.

It is against this decision that the defendant has appealed to this court. Though he filed eight grounds of appeal, learned counsel representing him, Chief F.R.A. Williams, argued only three grounds and these complain mainly against the admissibility of Exhibits B, B1 and B2 and also the judgment being against the weight of evidence.

In pursuance of the grounds of appeal, Chief Williams submitted that the case turned on the issue of title as between the parties. He referred to paragraph 3 of the statement of claim where the plaintiff claimed to have purchased the land from Nwaudorie and to paragraph 4 of the Statement of Defence where the defendant claimed to have bought the land from Chief N.O. Nwosu. Counsel also referred to the evidence of Benedict Nwosu and submitted that Nwaudorie did not know the extent of the grant made to him by the Nwosu family.

As regards the admissibility of Exhibits B and B1, Chief Williams called our attention to the fact that while Exhibit B, the Deed of Conveyance, was dated 9th August, 1961, and executed on the 18th of August, 1961, the Statement of Claim of the plaintiff was prepared on 19th June, 1961. Counsel then submitted that paragraph 3 of the statement of claim could not refer to Exhibit B, which was not in existence at the time of the preparation of the Statement of Claim but would only refer to Exhibit B1; Exhibit B not having been pleaded, would therefore not be admissible. He also contended that Exhibit B1 could not be admissible merely by marrying it with Exhibit B which itself is not admissible; and that even if Exhibit B1 is admissible, it would not help the case of the plaintiff as that exhibit does not show the precise area or extent of the grant made to the plaintiff. Finally, he submitted that Exhibit B2 (i.e. the plan attached to Exhibit B) was also inadmissible because it was not pleaded, and in any event, could never have been pleaded: the plan was made on the 22nd of July, 1961, countersigned on the 28th of July, 1961, by the Director of Surveys, whereas the Statement of Claim was prepared in June, 1961, that is, before the existence of the plan.

Mr. Balonwu learned counsel for the respondent conceded that neither Exhibit B nor Exhibit B2 was in existence in June, 1961, when the statement of claim was prepared; he also made the following concessions: (a) that the land belonged originally to the Nwosu family and, (b) that for plaintiff to succeed, he must trace his title to Nwosu, and (c) that it was not on record that the plaintiff bought the land under customary law. However, learned counsel (Balonwu) submitted that Exhibit B1 was admissible under Section 24 of the Land Instrument Registration Law aforesaid.

To appreciate fully the submissions of learned counsel, it would be necessary to examine some of the relevant paragraphs of the pleadings for the main contention of Chief Williams is that neither the Deed of Conveyance Exhibit B nor the plan attached thereto, Exhibit B2 is admissible in evidence. Paragraph 3 of the Statement of Claim filed by the plaintiff on the 19th of June, 1961, reads:-

“3. The Plaintiff acquired the land in dispute by purchase from one Nwaudorie Amaechighi of Otollo, Nnewi, in 1951, for 95 pounds (Ninety-Five pounds). At the time of the purchase, the said Nwaudorie had on the said land a mud house surrounded by a mud wall, where he was then living, and it was agreed between him and the plaintiff that he would quit the said land after one year from the date of the purchase.

The Plaintiff and Nwaudorie sign a written agreement, and the Plaintiff will rely on it at the hearing.”

(Underlining ours)

The defendant denied this averment in paragraph (4), of his statement of Defence, and it was in regard to the “written agreement” which the plaintiff was alleged to have signed with Nwaudorie that the parties joined issue. As Chief Williams rightly pointed out, this “written agreement’ could only be Exhibit B1, the agreement between Nwaudorie and the plaintiff and certainly not Exhibit B, the Deed of Conveyance which was made later and which was definitely not in existence at the time of the filing of the Statement of Claim.

It is settled law that a plaintiff must be held to the case put forward in his pleadings. In African Continental Bank v. Attorney-General of Northern Nigeria, (1967) NMLR 231, at page 233, Brett, JSC., delivering the judgment of this court regarded it as established rule that a plaintiff must be held to the case put forward in his writ of summons and pleadings, for, as it has also been established by this court, one of the objects of pleadings is to settle the issues to be tried, (See Oduka & Ors. v. Kasunmu & Ors. (1968) NMLR 28, at page 31; Emegokwue v. Okadigbo (1973) 4 S.C. 113.In the latter case, this court said “that any evidence which is at variance with the averment of the pleadings” goes to no issue and should be disregarded by the court. The reason for this strict rule is not far to seek, for as it was said in George & Ors. v. Dominion Flour Mills Limited, (1963) All NLR 51, at 77-78, the fairness of any trial can be tested by the maxim audi alteram partem, and the other side cannot be properly heard if it is taken by surprise. In our view, therefore, the learned trial Judge is clearly in error when he admitted Exhibits B and B2.

As regards Exhibit B1, that is, the agreement between the plaintiff and Nwaudorie, the learned trial Judge himself held that it was common ground, that the exhibit was an instrument affecting interest in land and that it was subject to registration, if it is required to be used in evidence. Exhibit B1 was not registered. Section 15 of the Land Instrument Registration Law (Cap.72) Laws of Eastern Nigeria provides:-

“15. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered; provided that a memorandum given in respect of equitable mortgage affecting land in respect of Eastern Nigeria, executed before the first day of July, 1944, and not registered under this law, may be pleaded and shall not be admissible in evidence by reason only of not been so registered.”

Exhibit B1 was made in April, 1951, and so is not covered by proviso to Section 15 of the Law. However, it was the submission of Mr. Balonwu that the document is admissible under Section 24 of Cap. 72 of the Law. The section provides:

“24. For the purposes of registration, an instrument shall be deemed to include all certificates and other matter endorsed thereon or attached thereto at the time it is delivered for registration.”

For Mr. Balonwu to rely upon this section, then Exhibit B to which Exhibit B1 is attached must have been admissible, but as we have held that Exhibit B is not admissible, Section 24 of the Lands Instrument Registration Law will not avail the plaintiff/respondent. We hold the view, therefore, that the three documents, Exhibits B, B1 and B2 are inadmissible. When the learned trial Judge held that the question as to who owned the portion of the land in dispute would ultimately turn on the ascertainment of the land granted by Chief Ezedumegwu Nwosu to Nwaudorie, he meant that there must be proof of title to establish the grant of the land from Chief Ezedumegwu Nwosu to Nwaudorie; and in so far as the case of the plaintiff goes, to prove that title, Exhibits B, B1 and B2 were the only relevant documents.

But the matter does not end there. For the learned trial Judge did not rest his consideration of the title of the plaintiff only on the said documents. As can be easily seen from the portions of his judgment reproduced earlier on, he said:-

“i. the land was granted under customary law;

ii. there was the ceremony of goat slaughter which perfected the sale;

iii. after that ceremony, the sale was perfect and irrevocable;

iv. the Land Registration Law affects land acquired under the general law and not “land in voluntary areas”;

v. the land in this case situated in voluntary areas;

vi. even if Exhibits B, B1 and B2 were not admissible, the plaintiff could rely on customary grant for his proof of title.

In our view, it is patent that the learned trial Judge took the case completely out of the realm contemplated by the pleadings in these proceedings and, decided it on points not raised in the said pleadings. At no time, not even during the address by learned counsel in the lower court did the plaintiff base his case on “customary title.” This court has stated times without number that it is not within the province and competence of a judge to evolve a case for the parties. In this case, it is not possible to say that the conclusions of the learned trial Judge would have been the same had he not departed from the case placed before him and considered the issues that were not matters of contest between the parties. It is for this reason that, in allowing this appeal, we will make an order for retrial before another Judge.

Before concluding this appeal we think we should refer to the behaviour of learned counsel for the respondent which we consider unsavoury; indeed, were it not for the rank of the particular counsel, who is a Senior Advocate of Nigeria, we would seriously have considered citing him for contempt. At the close of argument on both sides in this and after we had reserved judgment learned counsel aforesaid sought and obtained leave to submit a list of additional legal authorities which in his view not only supported but enhanced his submissions but which authorities were not readily available to him at the time the submissions were made in open court. Although this practice obtains more in Courts of Appeal, we think it should be sparingly used and then only in appeals which involve considerable and difficult points of law provided always that counsel submitting such list of additional legal authorities sends a copy to his learned colleague appearing for the other party in the appeal. But where, as here, learned counsel for the respondent having, in the circumstances stated above, obtained leave to send such a list, it is in our view, to say the least, very unbecoming of counsel to use the occasion or opportunity to make scathing remarks or statements which he knows are, not only untrue but unjustified. We think also that, generally, care should be taken in the choice and use of words or language employed in memoranda intended for the court since in certain circumstances where, as here, the writer employs unsavoury language to project statements which are, not only untrue but unjustified, the effect of the statements in such documents is one of the utter disrespect to the court. In the matter under consideration parts of the letter which, although addressed by counsel for the respondent to the Chief Registrar, requested that it should be “brought to the notice of their Lordships” read:-

“And I venture to suggest for my self that I would have faired better if I was left alone uninterrrupted to put my case across to the court the best way I could. When Chief Williams abandoned all other grounds filed and only argued weight of Evidence and Admissibility of Exhibits B and B1 and ran into difficulty, he was very lucky that the court rose for some thirty minutes. Being a very experienced counsel, he came out of his difficulties.

During my own argument, I ran into a similar difficulty but unfortunately I had not the privilege of short adjournment by the court to enable me to compose myself and re-adjust my argument.

I have been constrained to put the arguments before the Court in writing because as the battle in this, is between an underdog (a poor man) of this country and an Ex-President of Senate, it is my duty as counsel to put forward available legal argument…”

(underlining supplied by the Court).

Learned counsel for the appellant was not given leave to make a second address to the court; he sought and obtained leave, as stated earlier on, to submit a list of additional legal authorities meant to serve as a prop to the submissions founded upon his arguments to this court en banc. What is more, it was not expected of him to make the slur and kind of imputation, to be gleaned from the underlined passages, in his letter quoted above, on the court. At no time did he ask for adjournment to “compose” himself or “re-adjust his argument.” Not only did he put his arguments freely to this court, he was even asked at the end of the reply to his arguments by learned counsel for the appellant (although he had no right to further “reply”) if he wished to add anything further to his earlier argument following a well reasonable reply on the legal issues raised in his submissions. We feel completely unable to appreciate the point relative to “interruptions by the court” made in his letter under reference which, in any event, was never made to this court en banc.

We think that there is need to remind members of the legal profession who are obliged to prosecute or defend claims in court on behalf of their clients that vis-a-vis their clients the advocate or counsel engaged in such duties “undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake …….that at all events (he) shall gain (the) case, nor does a surgeon undertake that he will perform a cure, nor does he undertake to use the highest degree of skill ……but he (the advocate) undertakes to bring a fair, reasonable and competent degree of skill….” (per Tindal CJ., in Lanphier v. Phipos (1938) 8 Car. & P at 475). (Brackets and underlining supplied by the court). In a similar vein, Lord Eldon many years later observed:-

“The advocate lends his exertions to all, himself to none. The result of the cause is to him a matter of indifference. It is for the court to decide. It is for him to argue. He is, however he may be represented by those who understand not his true situation, merely an officer assisting in the administration of justice and acting under the impression that truth is best discussed by powerful statements on both sides of the question.” (see Exparte Lloyd (1882) Montagu’s Report 70.

It is just as well that counsel should always bear the above remarks in mind and if they do they will always avoid the risk of incurring the displeasure of the courts. Finally, we think it is necessary also to remind learned counsel for the respondent that the appeal court, as indeed the lower courts do, always enjoys good performance on the part of counsel appearing before it and always regards it as most refreshing to hear an appeal well-conducted and “particularly to find learned counsel with a sense of responsibility which leads them to give ground when it is obviously of no avail to prolong the struggle” (see Abbot Ag. CJF., in Idahosa & Anor v. Orosanya (1959) 4 FSC. 166 at 174.

This appeal succeeds and the judgment of Agbakoba, J., in Suit No. 0/25/61 dated the 16th day of January, 1975, together with the order therein for costs is hereby set aside. In substitution therefore, it is hereby ordered that the case be tried de novo before another judge in the High Court of Anambra State holden at Onitsha. The appellant shall have costs of this appeal assessed and fixed at N424.00.

Other Citation: (1978) LCN/2060(SC)

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