Emavworhe Etajata & 2 Ors V Peter Igbini Ologbo & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

I. T. MUHAMMAD, J.S.C.

From available facts contained in the Printed Record of Appeal, both the Plaintiffs and the defendants before the High Court of the then Old Bendel State (trial court) were of same family i.e. OMOVWIARE family of IGWREKPOKPO village in Ughelli Local Government Area. The Plaintiffs claimed to sue for themselves and on behalf of the said family. The defendants were sued in their individual capacities. They denied that the plaintiffs were suing on behalf of Omovwiare family as the plaintiffs did not seek or had the consent of that family. The dispute was on land which formed part of Ugbusi land situated and lying in Ugheli Local Government Area. The plaintiffs claimed that some portions of the said land were sold or leased by the defendants to various persons for which the sum of over N50,000.00 (fifty thousand naira) was received by the defendants and shared among themselves to the exclusion of other members of Omovwiare family.

The land, according to the plaintiffs contained plaintiffs’ and other members of that family’s rubber plantations; fish ponds; plaintiffs’ buildings, juju shrine, cassava plants; fish traps and many other crops. Plaintiffs and other members of Omovwiare family and their maternal ancestor, Imohkwe, had undisturbed enjoyment and possession of the said land until 1977 when the defendants challenged the rights of the 1st plaintiff and Ediri Etajata rubber plantation to one Japan for building purposes. The land in dispute was founded by Imohkwe from time immemorial and was the first person to set foot on and to occupy the land when it was virgin forest. The appellants claimed further that the said Imohkwe shared the Ugbusi land and gave part to his daughter called Omovwiare and the remaining part to his other child called Itoto. Both plaintiffs and defendants are descendants of Omovwiare. The plaintiffs claimed also that in 1960, there was a dispute between members of Omovwiare family and Itoto family over the boundary between their respective portions of the land. The dispute was settled on the 13th of August, 1960. After the settlement, the defendants told the plaintiffs and other family members that they, defendants as representatives of Omovwiare family would meet members of the Itoto family for the settlement terms to be put into writing and signed, by the representatives of both families so as to avoid future boundary disputes. The defendants, according to the plaintiffs, instead of drawing up terms of settlement with the representatives of Itoto family, surreptitiously entered into an agreement dated the 1st day of April, 1961 with some members of the Itoto family which agreement purported to transfer the title in the said land to defendants exclusively. The defendants, plaintiffs further alleged, had since then kept the said agreement away from the plaintiffs and other members of Omovwiare family until early in 1977 when the 1st plaintiff and his mother tried to sell a portion of the said land to one Japan.

The defendants fraudulently prevented the plaintiffs and other members of Omovwiare family from having interest in and share, of the proceeds from the sales of the various plots. They also refused to render account of the sale proceeds. The plaintiffs pleaded the particulars of the fraud alleged. Now, because of the defendants refusal to give account of the proceeds of the sales of the land and for their refusal as well to share such proceeds, the plaintiffs resorted to filing of this suit. The claims indorsed in the writ of summons and as repeated in paragraph 25 of the Further Amended Statement of claim read as follows:- “When defendants ignored the said letter plaintiffs were compelled to bring this action for themselves and on behalf of Omovwiare family against the defendants jointly and severally claiming as per writ as follows:-

1. A declaration that the land in dispute known and called Ugbusi land situates and lying in Iwrekpokpo village within Ughelli Judicial Division is the property of the said family to which plaintiffs and defendants belong.
2. A declaration that defendants hold the proceeds from the sales of several portions of the said Ugbusi land on trust for the said Omovwiare family.
3. That the said agreement dated 1st April, 1961 be declared null and void on the grounds of fraud.
4. That an account be taken of such sales and of the money received from the sales of the several portions of the said land by defendants.
5. That defendants pay over to plaintiff for the said family whatever is due to them after the taking of such account.
6. An injunction restraining defendants, their agents from further sale of Ugbusi land without the consent and authorization of the plaintiffs and the other members of Omovwiare family.
7. Any further or other reliefs.”

The defendants as per their further amended statement of defence, except where they made express admission, denied each and every allegation of facts contained in the further amended statement of claim filed by the plaintiffs. Defendants for instance denied emphatically that they sold or leased the said land over #50,000.00(fifty thousand naira) to various persons. They denied the existence of Itoto family land. They also denied that Imowhe, during his life time shared the afore-said land into two between his son Itoto and daughter Omovwiare. They averred that all Imowhe lands had since his death devolved according to Ughelli/Urhobo native law and custom on the descendants of Imowhe. The matter proceeded to hearing at the end of which the trial court granted partially, the plaintiffs’ reliefs in the following terms:-

(i) That the land in dispute is the property of the entire Omovwiare family.

(ii) Injunction restraining the defendants their servants or agent from further sales of the land in dispute without the authority and consent of the members of the Omovwiare family, was granted. (iii) That the defendants were to account only for the sale to PW 5. The defendants were dissatisfied with the decision of the trial court and appealed to the Court of Appeal, Benin Division. The court below, on 12th May, 1989, dismissed the appeal and affirmed the trial court’s judgment except for relief (1) which was varied to read:-

“It is hereby declared that the plaintiffs are entitled to a customary right of occupancy in respect of the land called Ugbusi land and shown on Exhibit C; less the area sold to PW 5 Johnson Ighomereho.” Dissatisfied with the judgment of the court below, the appellants appealed to this court. Briefs of argument including appellants reply brief were filed and exchanged by the parties. Learned Counsel for the appellants posed the following five issues for determination:-

“1. Whether the court of Appeal was right when it failed to consider and pronounce upon all the issues formulated by the Appellants from the grounds of appeal validly filed and thereby occasioning a grave miscarriage of justice.

2. Whether the document, Exhibit ‘A’ which did not comply with Sections 2 and 16 of Lands Instruments Registration Law Cap 81 vol. 4 Laws of Bendel State of Nigeria 1976, is inadmissible, null and void and/or worthless for all purposes in the circumstances of this case.
3. Whether the Court of Appeal was right in its variation of the order/award made by the trial court in the circumstances of this case.
4. Whether having regard to the pleadings and evidence on record before it, the judgment of the Court of Appeal affirming/confirming the judgment of the trial court was right. 5. Whether having regard to Exhibit D and the evidence of P.W.

5, the Court of Appeal was right in accepting the finding of the trial High Court that the land in dispute belonged to the Omovwiare family.”

The learned Counsel for the respondents, although largely centred his arguments on the Grounds of Appeal filed by the appellants, he, towards the end of his brief, seemed to have made some selective replies on the issues formulated by the appellants. He replied appellants’ issues Nos. 1,2,3 and 4. (see pages 8 and 9 of the respondent’s brief). Although, strictly speaking, learned Counsel for the respondents did not make his arguments in line with the modus operandi of brief writing in the Court of Appeal and this court, one would forgive this failure by the learned Counsel for the respondents as brief writing system was by then just introduced. The mere fact that a brief was badly written by a party and except where it appears incomprehensible, the Court needs to consider it in the interest of justice. In fact the Court has power to correct errors in a faulty brief. See: ACME Builders Ltd. v. KSWB (1999) 2 N.W.L.R. (Pt. 590) 288. In his submission on issue 1 learned Counsel for the appellants stated that the Court of Appeal was wrong when it completely failed to consider and pronounce upon issue No. 1 whereas an appellate Court has a duty to consider all the issues placed before it for determination. He cited and relied on the cases of Okonji v. Njokanma (1991) 7 N.W.L.R. (Pt. 202) 131 and Anyaduba v. NRTC Ltd. (1992) 5 N.W.L.R. (Pt. 243) 535. This omission by the Court of Appeal learned Counsel argued, amounted to a denial of fair hearing and had occasioned a miscarriage of justice. He urged this court to set aside the decision of the court below and dismiss the plaintiffs’/respondents’ case in its entirety. Learned Counsel for the respondents while responding to appellants’ issue 1, submitted that the lower court dealt with all the issues together and considered them before reaching the decision of affirming the decision of the trial Judge. He argued further that the evidence of the plaintiffs/respondents is not at variance or in conflict with the plaintiffs’ pleadings. Submitted for the respondents is that the appellants case supported the case of the respondents and so this appeal should be dismissed. Learned Counsel cited the case of Joseph Akinola & Anor. v. Fatoyinbo Oluwo and Ors. (1962) A.N.L.R. 224 at 225. Now, from the Records of this appeal, three issues were formulated by the appellants before the court below for its determination.

They are contained on page 281 of the Record. Specifically however, the appellants before this court in their issue No. 1 alleged that the lower court completely failed to tackle/consider and pronounce upon issue No. 1 submitted for its determination. Issue No. 1 before the lower court reads as follows:

“1. Given the state of plaintiffs’ pleadings and evidence led, was the judgment justified or right?” Tied to Ground one. (see page 281 of the Printed Record of Appeal). It appears however, that the Court below formulated issue 1, I think in it’s own words. It reads as follows: –

“Can a judgment delivered in favour of plaintiff based on a case/evidence at variance or in conflict with plaintiffs’ pleadings stand? Can parties to a suit travel with impunity outside their pleadings?” After having set out appellants’ issues 2 and 3 and the respondents’ sole issue, Ogundare JCA (as he then was) expressed his view on these issues and he said:- “In my view, issues 1 and 3 in the Appellants’ brief amount to the same as question raised in Respondents’ brief. I shall deal with all the issues together.” The learned JCA went on to consider the issues and arrived at the conclusion which gave rise to this appeal. His other brothers on the Panel agreed with his reasoning process and the conclusions reached. I think for the avoidance of doubt, I find it appropriate to have a look at the issues placed before the lower court and the consideration given to them by the Court below.