Godfrey Onyenweuzor V. Silva Ada Opusunju (2000)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The respondent who was the plaintiff in the High Court of Justice, Port Harcourt, sued the defendant/appellant seeking a declaration that the property known as Plot 182 Orornineke Layout otherwise called No.21 Ndashi Street, D/Line, Port Harcourt is his property, the sale by the Rivers State Government of the property to him is valid and subsisting, an injunction to restrain the defendant/appellant and his servants or agents from interfering with his right in and over the property. The respondent sued by his Attorney, Chief Sheld A. Opusunju.
Pleadings were exchanged and the respondent gave evidence through his attorney and the appellant also gave evidence.
The gist of the respondent’s case was that he bought the disputed property from the Rivers State Government after the original grantee of the land, one Josiah Okehie Nwosu failed to build a house on the property within two years as stipulated in the grant. The Rivers State Government cancelled the grant and then sold the property to the respondent who improved on it and put tenants therein.
The appellant’s case was that the said Josiah Nwosu was granted a lease of 40 years by the defunct Eastern Nigeria Government and he in turn granted to the appellant a power of attorney and the appellant had been managing the property ever since.
After addresses by counsel on either side, the trial court held that the power of attorney granted to the appellant was void because it did not receive the prior consent of the Governor of Rivers State as stipulated by law. The court then gave judgment in favour of the respondent.
Dissatisfied with the judgment of the lower court the appellant has appealed to this court and filed a brief of argument in which three issues are formulated for determination as follows:
- “Whether the learned trial Judge was right in invoking the provisions of section 6(b)(iii) of the State Land Law, Cap. 122 of the Laws of Eastern Nigeria, 1963, in this case and deciding the case against the defendant/appellant on an issue not raised by any of the parties in their pleading, namely, the issue of lack of prior written consent of the Governor to exhibit “G” (that is, the irrevocable power of attorney granted to the defendant/appellant).
- Whether the learned trial Judge was right in failing to make any findings at all on the issues raised in the pleading of both parties upon which evidence was led at the trial.
- Did the plaintiff/respondent succeed in proving his title to the disputed landed property in this case on the strength of his case to justify the judgment entered in his favour?”
The respondent also filed a brief of argument and raised three issues for determination as follows:
- “Whether the learned trial Judge was right in invoking the provisions of section 6(b)(iii) of the State Lands Law, Cap.122 of the Laws of Eastern Nigeria, 1963, in the determination of this case.
- Whether the learned trial Judge was bound to consider all issues raised by the parties when one of the issues or questions can finally and conclusively dispose of the case.
- Whether the plaintiff/respondent proved his case and was entitled to judgment.”
On the 1st issue the learned counsel for the appellant submitted that the trial court based its decision on exh. G, the power of attorney granted to the appellant by Josiah Nwosu when it held that the document did not receive the prior consent of the Governor before it was made and it was therefore void. The learned counsel pointed out that none of the parties to the suit in the court below pleaded the issue of lack of governor’s prior written consent to exh. G. The trial court was therefore wrong in deciding the matter based on an issue that was not pleaded. He relied on the case of Alhaji A.W. Elias v. Olayemi Disu and Ors (1962) 4 All NLR 215 at p.219, (1962) 1 SCNLR 361. The learned counsel further argued that in deciding a case a trial Judge must keep strictly to the pleadings of the parties and issues joined and must not import into his judgment issues not pleaded. He referred to the case of Ben Agina v. Victoria Agina (1991) 4 NWLR (Pt.185) 358.
In reply to this issue, the learned counsel for the respondent submitted that the respondent pleaded and gave evidence to the effect that Mr J.O. Nwosu, the original owner of the property in dispute failed to comply with the terms of the lease to erect a building of 2,500 pounds and have it completed within two years from the 1st of January, 1963, in accordance with the plan approved by the Lands Officer and that consequent upon this the lease lapsed and the property reverted to the Rivers State Government as undeveloped property. He said that by implication the respondent pleaded that the power of attorney did not receive the prior consent of the Governor and was therefore null and void and of no consequence. The learned counsel argued forcefully that it is elementary law that the court is bound to take judicial notice of all relevant statutes and in this case it could raise the issue of applicable statutory provision with respect to the power of attorney suo motu in much the same way that it can do in respect of jurisdiction. He referred to the case of Aunam Nigeria Ltd v. Leventis Motors Ltd. (1990) 5 NWLR (Pt.151) 458.
On the 2nd issue, the learned counsel for the appellant submitted that the trial court was wrong in failing to consider the case of the parties as presented before it from the pleadings and evidence but simply resorted to the non-consent of the Governor to the power of attorney granted to the appellant to demolish the appellant’s case. He argued that a trial court has a duty to consider all the issues properly raised and canvassed before it before making findings of fact on them. He relied on the case of Mrs. Jarin Adegbite v. M.K. Ogunfaolu and Anor (1990) 4 NWLR (Pt.146) 578. The learned counsel then invited this court to make proper findings based on the facts proved at the trial.
The respondent seems to have argued all the issues together. In respect to the 2nd issue, it is the submission of the respondent’s counsel that the trial Judge was not bound to consider all issues raised by the parties when one of the issues can finally and conclusively dispose of the case as was the position in this case.
On the 3rd issue the learned counsel for the appellant wants this court to resolve whether or not the ‘respondent succeeded in proving title to the disputed property to justify the judgment given in his favour.
In is settled law that all parties including a trial Judge are bound by the pleadings settled before the court and the court must keep strictly to the pleadings of the parties and issues joined and must not go outside the pleadings in giving judgment. See the cases of Ben Agina v. Victoria Agina (1991) 4 NWLR (Pt.185) 358 at p.368 para B, Chief Isicheri Udogwu and Ors v. Dr. Festus v. Oki and Ors (1990) 5 NWLR (Pt.153) 721 at p.742 paras A-C, Dipcharima v. Ali (1974) 12 SC 45 at p.47, and Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 at pp.15-16. It is also trite law that where a party wishes to rely on a statutory defence, he should plead it or at least plead facts upon which the point may be taken up on his behalf at the trial. See the case of Isaac Jeje v. Kasimu Kadiri and Ors (1987) 4 NWLR (Pt.65) 460.
Order 24, rule 2 of the High Court (Civil Procedure) Rules 1987 of Rivers State provides as follows:
“Any party shall be entitled to raise by its pleadings any point of law and any point so raised shall be disposed of by the Judge who tries the case at or after the trial.”
The question of whether or not the power of attorney granted to the appellant did not receive the prior consent of the Governor and was therefore void and contrary to S.6(b)(iii) of the State Lands Law, Cap 112 Laws of Eastern Nigeria applicable in Rivers State was a fundamental issue which ought to have been pleaded by the respondent in reply to the appellant’s statement of defence.
I have looked at the pleadings meticulously and this issue was not pleaded by either side in the court below. The trial court was therefore wrong to hinge its decision entirely on an issue not raised by the pleadings and evidence before it.
It is law that the trial court has a duty to consider all issues properly raised and canvassed before it and make findings of fact thereon. See the following cases: Mrs Jarin Adegbite v. Chief M.K. Ogunfaolu and Anor (1990) 4 NWLR (Pt.146) 578 at p.590 para. D, Chief Hope Lasisi Atanda and 3 Ors v. Salami Ajani and 4 Ors (1989) 3 NWLR (Pt.111) 511.
I am amazed that the learned trial Judge made no evaluation of the evidence of the respondent vis-a- vis the evidence of the appellant before giving judgment in favour of the respondent based only on a matter raised suo motu by him. It appears to me that what the learned trial Judge did was to find an easy route to decide the matter without the usual dispassionate appraisal of the evidence in the case of both parties. Such a procedure does not meet the ends of Justice. It is the law that in land matters the plaintiff seeking title to land must win his case on the strength of his own case and not on the weakness of the defendant’s case. See the case of Abaye v. Ofili and Anor (1986) 1 NWLR (Pt.15) 134.
For all I have said in this judgment, the trial court committed grave errors and its judgment cannot be allowed to stand. Accordingly, I allow this appeal and set aside the judgment of the lower court.
The learned counsel for the appellant has asked this court to make appropriate findings of fact to dismiss respondent’s claim in the court below. If in the case the evidence is entirely documentary and the Court of Appeal can make necessary inferences from such documents to give judgment one way or the other, the Court of Appeal can do what the appellant’s counsel has requested. However, this particular case requires the evaluation of evidence and credibility of the witnesses on serious issues in controversy between the parties and it is the province of a trial court to determine such issues. I therefore decline to do what the learned counsel for the appellant has requested. Instead I remit the case to the Chief Judge of the River State High Court for retrial before another Judge. Happily, Tabai, J. (as he then was) who tried this case is no longer in the State High Court. The appellant is entitled to costs for N3,000.00 against the respondent.
Other Citations:(2000)LCN/0779(CA)