Mrs. Vidah C. Ohochukwu V. Attorney-general Of Rivers State & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

ALOMA MARIAM MUKHTAR, J.S.C

The appellant in this appeal was initially one of two plaintiffs in the High Court of Rivers State who sought the following reliefs against the defendants/respondents:-

“1. A declaration that the certificate of Occupancy registered as No.76 at page 76 in volume 93 in the Lands office Port Harcourt in respect of Plot A27 G.R.A. Phase I Port Harcourt property of the Plaintiff is correct, valid and subsisting.

2. A declaration that the purported sale of the said property to the 3rd defendant by the 1st and 2nd defendants is unconstitutional null and void and of no legal effect.
3. N50,000.00 special and general damages for unlawfully purporting to sell the said 1st plaintiff’s property.
4. A perpetual injunction restraining the defendants by themselves, their servants, agents or privies from further unconstitutionally interfering with the 1st plaintiff ‘s ownership or possession of the said property situate lying and being at Plot A27 G.R.A. Phase 1, Port Harcourt.”

The history of the property is that the plaintiff applied for allocation of the plot in controversy from the Rivers State Government, and he was allocated the plot vide letters, and after complying with the conditions of allocation i.e payment, the plaintiff was issued with a Certificate of Occupancy. The plaintiff erected a building on the plot, and he has since been paying ground rents in respect of the said property. A commission named the Sanomi’s commission was set up by the Rivers State Government to look into sales of landed properties in the state. In its report the property was listed among plots that had reverted to the Government of Rivers State, and it was agreed that the land in controversy be assigned to his common law wife (the appellant) to enable him raise money to defray the bank loan used in erecting the building on it, and a deed of assignment was prepared and executed, and forwarded to the Secretary to the Government requesting for consent of the Military Governor. When the property was included in the list of properties seized, the plaintiff lodged a protest and when the plaintiff applied for assignment, the Commissioner of land, replied that the property had reverted to the Rivers State Government, hence the application for assignment could not be processed. The plaintiff pleaded that the Rivers State Government is estopped from revoking the Right of Occupancy after they had expended so much money on erecting a building on it, and any such revocation is ultra vires null and void.

The defendants in their various statements of defence denied most of the allegations in the plaintiffs’ statement of claim, stating that the revocation was justified as the plaintiff was in breach of the covenant contained in the certificate of occupancy for non-payment of ground rent.

The 1st defendant denied that the proposed deed of assignment between the plaintiff and the appellant sent to the Secretary to the Government was not approved. The 3rd defendant in his statement of defence contended that he is a bona fide purchaser for value without notice of the property in dispute, and that the plaintiffs have no cause of action against the 3rd defendant. The action is frivolous, speculative, incompetent and must be dismissed. The name of the 2nd plaintiff was struck out, but on the demise of the 1st plaintiff, the 2nd plaintiff was substituted as an appellant.

At the close of pleadings parties adduced evidence which was appraised by the learned trial judge, who at the end of the proceedings gave judgment in favour of the plaintiff and granted all the reliefs sought.

Dissatisfied with the judgment, the defendants appealed to the court of Appeal, Port Harcourt Division. The Court of Appeal, allowed the appeal, concluding thus:-

“In the result I am of the view that this appeal succeeds and it is allowed. The judgment of H. George J, given on 7th January 1994 is hereby set aside. The claim of the respondent in suit No. PHC/557/86 in the lower court fails. It is accordingly dismissed with costs assessed at N3,000.00 in favour of the appellants and N5,000.00 costs in this appeal also in favour of the appellants.”

The appellant after substitution appealed to this court. In compliance with the rules of this court, the parties exchanged briefs of argument, two briefs of argument were filed by the learned counsel for the appellant, but at the hearing of the appeal he adopted the brief filed on 13/3/2009. A brief prepared by the Director of Civil Litigation department, Rivers State, Mrs. Minakiri, had as its heading 1st and 2nd Respondent’s brief of argument, but at the hearing of the appeal, Mrs. Minakiri informed the court that the brief was in respect of the 1st respondent only, and she accordingly adopted it.

The 2nd and 3rd respondents briefs of argument were also adopted at the hearing of the appeal, Three issues for determination were raised in the appellant’s brief of argument, which read as follows:-

“1. Whether the decision of the court of Appeal that the trial court did not appreciate and consider the issues raised in the suit is right and supported by the evidence on Record.

2. Whether the Court of Appeal was right in dismissing the suit of the Plaintiff/Appellant.
3. Whether the Court of Appeal was right when it dismissed the Plaintiff ‘s claim instead of ordering a retrial.”

The learned counsel for the 1st respondent is of the view that a lone issue which reads as follows will suffice for the determination of the appeal.

The issue is:-

“Whether in the light of the pleadings and evidence on record, the court of Appeal was right in dismissing the suit rather than remitting same to the trial court for retrial upon holding that the trial court did not appreciate the issues raised in the suit.”

The learned counsel for the 2nd respondent also formulated a single issue for determination which reads thus:-

“Having regard to the evidence led in this case and the judgment of the learned trial judge, did the court below err in evaluating evidence and consequently dismissing plaintiff’s, claims, rather than ordering a retrial of the same”

In his own brief of argument, the 3rd respondent also raised a lone issue for determination which reads as follows:-

‘Whether the Court of Appeal rightly dismissed the Appellant’s case having regard to its findings that the trial court did not appreciate and consider the issues raised in this suit instead of ordering a retrial.’

I will adopt the issues formulated in the appellant’s brief of argument, starting with issues (1) and (2) supra. The finding of the lower court attacked by the appellant under this issue read as follows:-

“All these issues were not considered by the court thereby creating a lacuna, a solution to which this court has to find. In short, the plaintiff/Respondent having already surrendered the plot in dispute he no longer has any right in the said plot of land though he will be in order to claim for improvements made on the land by him. The Rivers State Government therefore had the right to accept the surrendered plot and deal in same as deemed appropriate under the provisions of the Land Use Act Cap 202 Laws of the Federation of Nigeria 1990. Issue No. 3 is therefore answered in the negative since the trial court failed to ascribe proper probative value to the evidence in that regard…

Going by my findings above and it is that the Plaintiff/Respondent could not in any way have been given judgment on his claims even on his own showing….

The judgment given in this suit was altogether inappropriate, the judge having failed to hit the nail on the head thereby making him miss the crucial point at stake.”

The learned counsel for the appellant has submitted that the learned trial judge duly considered the crucial issues which arose for determination on the pleadings and evidence before him. The learned counsel for the respondent has submitted that the lower court is quite justified in taking the position it took in evaluating the evidence as it did based on the record, there being no issue touching on the credibility of witnesses or their demeanour.

The learned counsel for the 2nd respondent has submitted that the court below did not err when it evaluated the evidence and consequently dismissed the plaintiffs’ claims at the High Court, rather than ordering a retrial of the same, in view of the pleaded facts and led evidence. The learned counsel for the 3rd respondent argued that the Court of Appeal was right in its conclusion that the trial court did not appreciate the issues raised in the suit. Now, what did the parties plead I will reproduce the salient averments hereunder:-

In the plaintiffs second further amended statement of claim, the plaintiffs pleaded thus inter alia:-

“6. Consequent on the plaintiff complying with the said payments a Certificate of Occupancy in respect of the said PLOT 427 Diobu G.R.A. PHASE 1, Port Harcourt was issued to the plaintiff. The said Certificate of Occupancy was registered as No. 76 at page 76 in volume 93 in the Lands Registry. The 99 years took effect from 1st January 1981 but the Certificate of Occupancy was signed on the 1st day of November, 1981.

7. Thereafter the plaintiff applied for the approval of his Building Plan. By a letter a Ref. CO/2638/2/82: RSL 8321/80 dated 22nd November 1982 from the City Engineer, the Plaintiff was required to make some payments being approval fees.
8. In response to the above the plaintiff made the following payments…
9. By a letter Ref. CC/2638/2/82 dated 23rd November 1982 from Port Harcourt Local Government area two (2) sets of the above approved plans were returned to the plaintiff.
10. The plaintiff has been paying property and Ground Rates (sic) in respect of the said property.
11. In 1984 the Rivers State Government set up a commission otherwise known as the SANOMI’s COMMISSION to look into sales of landed properties in Rivers State. Property Owners were required to submit the document showing their title to the respective property for verification. The plaintiff, who owned another property apart from the one in dispute submitted his documents. The plaintiff was there and then informed by commission that one of his properties will have to be surrendered to the River State Government. The plaintiff protested against this decision before the Commission.
12. The plaintiff soon after and prior to the publication of the Commission’s report made a representation to the then Military Governor…
13. At the meeting with the Military Governor, the plaintiff submitted to the former, a letter appealing for the review of the decision of the Sanomi’s commission. Consequent upon this representation, it was agreed that the plaintiff should assign the residue of the lease in respect of Plot A27 to Mrs. VIDAH OHOCHUKWU. The Military Governor there and then minuted on the said decision to the then Secretary to the Military Government, Mr. SOMIWA DAGOGO-JACK for necessary action.

a) On 20th September 1985 the plaintiff had an appointment with the chief Lands officer and he was told what payment would be required before the assignment is made. The plaintiff who in three days was due to leave Nigeria for an appointment abroad, by a letter dated 20th September 1985, protested against the increase of the ground rent payable …

15. In response to the above letter Ref. RSL/8341/36 dated 25th September 1985 (sic) was written from the office of the Chief Lands officer demanding the payment of certain fees which must be paid before any further action was taken in this matter.

These sums included…

16. On 2nd April 1986 the plaintiff caused to be paid into the account of the Rivers State Government the sum of N859.10 covering the registration and consent fees as well as part of the Ground Rents owed. No receipt could be issued by the Ministry of Lands because the file for this property was reported missing.

a) The plaintiff contends that no ground rent was owed for the year 1983. The payment of 1984 ground rent was withheld pending approval of the assignment. The plaintiff will further contend at the trial that if ground rents were in arrears in respect 1983, 1984 and 1985 under the covenant in the Certificate of Occupancy in respect of the property in dispute.

18. By a letter Ref. RSL/8341/46 dated 16th July 1986 from the Chief Lands Officer the solicitors to the plaintiffs were informed that the application could not be processed because the property had reverted to the Rivers State official Gazette No. 9, Volume 18 of 27th March 1996.
19. The plaintiff plead that the Rivers State Government is estopped from revoking the Rights of Occupancy after it has caused the plaintiff to expend money in erecting the building thereon and after causing its agents to demand from the plaintiff the necessary fees in furtherance of the plaintiff s intention to assign the property to MRS. VIDAH OHOCHUKWU.

In its amended statement of defence, the 1st defendant gave a genesis of what led to the present controversy, as follows:-

“3. The 1st Defendant does not admit paragraph 3, 4 and 5 of the plaintiff’s statement of claim and will at the trial contend that the true position is as follows:-

(a) That by a personal letter dated 5th February 1981, the plaintiff applied to the Civilian Governor of Rivers State, Chief Melford Okilo to buy No. 10 ALAGBO – OPIA CLOSE, PORT-HARCOURT.

(b) That the said No. 10 ALAGBO – OPIA CLOSE was a Rivers State Government residential property which the plaintiff was occupying as his official residential accommodation by virtue of his position as a High Court Judge in Rivers State.

(c) That the then Governor minuted on the plaintiff’s letter referred to above directing the Chairman of the Task Force on Government properties to find an alternative plot in Diobu G.R.A. Phases 1 and 2 for the plaintiff.

(d) That based on the Governor’s directive referred to above, the plaintiff was offered the property in plot 39 G.R.A. Phase I Diobu at the price of N60,704.95 which he accepted with the payment of 20% of the purchase price.

(e) That in evidence of the above transaction, a certificate of Purchase was issued by the Secretary, Committee in Government Properties, Governor’s office Port Harcourt on 30th June, 1981 under their letter reference No. GD/0GP/104/81.

The 1st Defendant thereby pleaded all the letters, minutes and documents herein before pleaded.

(f) That unknown to the Governor at the time a photocopy of the plaintiff s letter, with the Governor’s office, ‘minutes thereon had also been sent to the lands Division of the Governor’s office which then offered a vacant plot No. A27 Diobu G.R.A. Phase 1 to the plaintiff by its letters Nos of 14th August 1981 an RSL/8341/12 of 3rd December 1981, subject to the terms and conditions contained in those letters, which said letters are hereby pleaded.

(g) That the said offer of Plot A.27 Diobu G.R.A. phase 1 was pleaded above, both referred to the plaintiff’s letter of 5th February 1981 which had been satisfied with the sale of Plot 39 G.R.A. Phase 31 to the plaintiff earlier on in the year.

(h) The 1st Defendant shall contend at the trial that the alleged payment of N550.00 by Barclays Bank certified cheque referred to by the plaintiff could not have been in response to RSL/8341/7 of 14/8/81 and letters Nos. RSL/8341/12 of 03/02/81 in respect of the transaction involving the plot in dispute.

4. with regard to paragraphs 6, 7, 8 and 9 of the plaintiff’s statement of claim the 1st Defendant admit that a certificate of occupancy was issued to the plaintiff but denies that the plaintiff complied with the payments required of him.
5. In further answer to paragraphs 6 and 7 of the plaintiff ‘s statement of claim the 1st Defendant shall at the trial contend as follows:-

(a) That by the terms of the Certificate of Occupancy issued to him the plaintiff covenanted among other things:-

(i) to pay the required rent of N391.00 per annum.

(ii) to erect buildings to the value of not less than N20,000.00 within

(b) That the plaintiff breached the above terms and conditions in that:-

(i) the plaintiff failed or neglected to pay the required rents for the years 1983, 1984 and 1985;

(ii) the plaintiff did not erect building of not less than N20,000.00 in accordance with plans approved by the Chief lands officer.

6. The 1st Defendant does not admit paragraph 10 of the plaintiff’s statement of claim and will contend at the trial that the building erected on the property in dispute was not in accordance with plans approved by the Chief Lands Officer, neither was the value up to N20,000.00 as required by the Certificate of Occupancy. What the plaintiff erected was only the boys quarters which was less then N20,000.00 at the time it was erected.
7. …
8. The 1st Defendant does not admit paragraphs 10, 13, 14 and 15 of the plaintiff s statement of claim and will at the trial contend as follows:-

(a) That after the publication of the ‘SANOMI PANEL REPORT, the plaintiff in two separate letters dated 8/8/85 appealed to the then Military Governor, Mr. Fidelis Oyakhilome for consent to assign the property in dispute to Mrs. Vidah Ohochukwu, the plaintiff s “common law wife”.

(b) That the Military Governor refused the plaintiff ‘s request and informed him that it was government policy that no individual should own more than one plot in G.R.A. Phase 1 and 2. The Plaintiff elected to keep Plot 39 G.R.A. Phase 1.

(c) That following the publication of the SANOMI PANEL’S REPORT and the acceptance of the said Panel’s recommendation as it affects the plot in dispute, the then Military Governor of Rivers State acting under powers granted him by the Land Use Decree 1978 revoked the plaintiff’s rights of occupancy over the said plot and cancelled the certificate of Defendant shall at the trial rely on the Rivers State official Gazette No. 9, Volume 18 of 27th March 1986 in proof of this fact.

(d) That at no time did the then Military Governor, Mr. Fidelis Oyakhilome or any other person authorized by him agree that the plaintiff should assign the property in dispute to his common law wife.

(e) That the proposed Deed of Assignment made by the plaintiff in favour of his common law wife was not approved by the Military Governor or any person duly authorized by him.

9. The 1st Defendant does not admit paragraph 16 of the plaintiff ‘s statement of claim and will at the trial contend that the payment of ground rent, if made at all, was without any demand from the Rivers State Government and was also made by the plaintiff after he had known of the revocation of his rights of occupancy and the cancellation of his Certificate of Occupancy in respect of the property in dispute
10. The 1st defendant admits paragraphs 17 and 18 of the plaintiff ‘s statement of claim, but say that with the, enactment of the REVOCATION OF RIGHTS AND CERTIFICATE OF OCCUPANCY ORDER OF 1986, the plaintiff ‘s interest in the property in dispute became extinguished with effect from the date of the said order.
11. The 1st Defendant does not admit paragraphs 19 and 20 of the plaintiff’s statement of claim and will at the trial contend follows:-

(a) That the revocation of the plaintiffs rights of occupancy and the cancellation of his certificate of occupancy were acts done in the exercise of powers vested in the Military Governor by the provisions of the Land Use Decree, 1970 and therefore ultra vires.

(b) That the plaintiff is estopped from contesting the revocation of his rights of occupancy and the cancellation of his certificate of occupancy in that he had agreed with the then Military Governor to forego his interest in that plot.

(c) That this Honourable Court has no jurisdiction to entertain the plaintiffs claim in this suit by virtue of the provision of Decree No. 13 of 1984.

The 2nd defendant’s salient averments read as follows:-

“3. 2nd Defendant in answer to paragraph 12 of the Statement of Claim aver that the 1st Defendant refused to pay Ground rents and Penalty for 1983, 1984 totaling N2,146,10k demanded per letter RSL 8341, dated 25/9/85 contending in his letter dated 20/9/85 to the Chief Lands Officer that there was no legal right to revise the amount of Ground Rent.

6. It was a term of the offer and grant of the Certificate of Occupancy in letter referred to in paragraph 6 of the Statement of Claim which was accepted by the 1st plaintiff in his letter of 5/10/81 to erect residential building to the value of N20,000.00.

It is quiet usual to demand statutory fees for normal assignment.

However, as earlier averred herein, officials of the Lands Department unaware at the time that the Sanomi Report Affected this property which, it recommended should revert to the State Government on the ground that is (sic) allocation to the 1st plaintiff was in violation of government policy not to allocate more than one property in same government GRA for purchase to an individual. The 1st plaintiff had already been allocated and granted a lease of plot 39 Diobu G.R.A., where the property in dispute is also located, by the 1st Defendant.

8. 2nd Defendant would also contend at the hearing that the said revocation was justified as the 1st Plaintiff was in breach of covenant contained in the Certificate of Occupancy for non-payment of ground rent at least for 1984 and 1985 as earlier averred. 2nd Defendant does not admit that 1st plaintiff was ever informed that the file was missing and so could not pay due fees as even if so those fees were payable into Government account with the Pan African Bank within the knowledge of the 1st Plaintiff when he paid the 1983 ground rent and penalty to that Bank on 2/4/86…

The plaintiff gave evidence on the procedure that led to his grant of a Certificate of Occupancy No.76/76/93, Exhibit 4, and how he sought for and received permission to build a house on the plot in dispute. He testified inter alia thus:-

“In 1984 I was summoned before the Sanomi Committee set up by the former Military Government. I appeared before them. They informed me that from the records before them that I had two properties in the GRA Phase 1. That I should choose which of the two properties that I would like to take. I decided to retain No. 39 Birabi Street, where I now reside. The Committee said the Government would take over the other property. That was the property in dispute, plot A27. When I left the Committee I made a written protest to the Government about what the Committee said to me. I had an evidence (sic) with the Military Governor…

The 2nd plaintiff also wrote a letter to the Military Governor in respect of the same property.

The letter written by the plaintiff and addressed to the Military Governor of Rivers State has as part of its content, the following:-

“‘The fact that the purchase was financed by Mrs. V. C. Ohochukwu was never disclosed in the Certificate of Occupancy. At the time of purchase the present policy that ‘wives can as of right purchase property in their names was not a recognized policy.

Now that this right is recognized by your Government, I am humbly appealing to you to exercise your discretion in favour of Mrs. V. C. Okochukwu and a (sic) her to retain the plot in question ………I here once more humbly ask for your permission to assign the property to her for the following reasons”.

Then exhibit ’12’ also dated 8th August and addressed to the Military Governor by the plaintiff has inter alia the follow:-

“At that time married women could not own properties in their own name hence the Certificate of Occupancy bore his name. I raised most of the money used in developing the property and can substantiate these fact…

In view of the fact that you and your Government, sir, recognizes the right of married women to own property in their own right, I humbly ask that I be allowed to retain the above plot by Deed of Assignment from my husband”.

With due respect; I have looked at the bottom of the two letters, and I fail to see where the Military Governor gave directive/authority to assign the said property. All I can see thereon is the stamp of the principal Secretary to the Military Governor and his office written in ink. Then at the top of Exhibit 12A are the words “SMG P1 process this appeal to me along with the attached one”. Have the letters added value to the case of the plaintiff I think not, for it does not say much about the Governor’s reaction/response or action authorized or directed to be taken by the Military Governor.

Secondly, Exhibit ‘ 13′ dated September 16, 1985, forwarding the deed of assignment was written and sent inspite of no response or permission to do so by, the Military Governor. Nevertheless Exhibit ’14’ emanated from the Military Governors office demanding the payment of some amount before action can be taken. I believe this letter is what the plaintiffs are strongly holding on to, but the fact remains that the plaintiff was aware that his right to the property had been extinguished by the Government vide the report of the Sanomi Commission, which he admitted affected his property, since he owned two properties, and had agreed to hold on to the property he was earlier allocated and in which he resides. His attempt to establish that the property was financed by the appellant failed because the relevant documents related to the property bear the name of the plaintiff. Of particular importance is the Certificate of Occupancy Exhibit 4 which bears the name of the plaintiff. If, (and I emphasise the word if) the plaintiff had been able to show the court the directive of the then Military Governor to assign to the appellant, perhaps, the case of the plaintiff would have taken another dimension, but there is nothing to prove and establish that fact. The fact that the plaintiffs attempt to assign the property is an admission of the fact that he was not entitled to the plot and an acceptance of the Sanomi report that it be relinquished and the certificate of occupancy be revoked. Having been revoked the Rivers State Government was at liberty to dispose of the property, as vested in it by the Land Use Act Cap 202 Laws of the Federation of Nigeria 1990.

On the issue of not serving the plaintiff a notice under subsection (6) of section 28 of the Land Use Act supra, before the certificate of occupancy was revoked, it is a fact that the plaintiff did not make an issue of it, in his final pleadings. The 1st defendant however pleaded in its statement of defence the fact that the revocation of the certificate of occupancy was done in exercise of the power conferred on the Military Governor under subsection (5) of Section 28 of the Land Use Act above. The fact, however, that the 1st defendant pleaded the revocation of the land in dispute by the Government under the Land Use Act supra, vide paragraph (11) of its amended statement of defence does not translate to evidence. No evidence was adduced on service of notice required before revocation of Certificate of Occupancy pursuant to the provision of Section 28 of the Land Use Act supra. As a matter of fact the plaintiff did not raise that point either in his pleadings or evidence. Hence it was neither made an issue in the trial court, nor did he seek and obtain leave to raise it as fresh issue in the court below.

The law is trite that a point that is not made an issue in the course of trial cannot be so raised in an appellate court unless with the leave of the trial court or the appellate court. See Oshatoba v. Olujitan 2000 5 NWLR part 655 page 159, Obioha v. Duru 1994 8 NWLR part 365 page 631, and Akpene v. Barclays Bank of Nigeria Ltd 1977 1 SC 47.

In this event, the lower court was right when it found inter alia in the excerpt of its judgment that the learned trial judge dabbled into extraneous matters that were not before him. Perhaps I should at this juncture reiterate the elementary principle of law that courts are bound by pleadings before them and should confine themselves to the case presented by parties. They are not allowed to go on a wild goose chase. See Continental Seaways v. N.D.R.G, 1977 5 SC.235, and Orizu v. Anyaegbunam 1978 5 SC. 21. In this wise, the court below was right when it held as follows:-

“Strangely however, the court did not make any pronouncement on the issue of surrender whether or not proper and effective. It merely busied itself with lack of atonement, which was never made an issue, and which the counsel for the Plaintiff/Respondent conceded was uncalled for. It also held that no notice was served on the Plaintiff/Respondent before the Certificate of Occupancy was revoked. The point was never made an issue at the trial and did not in fact arise going by the facts of the case”.

It seems the learned counsel is saying because there was a blanket averment of revocation under the Land Use Act supra, so the issue of notice automatically arises, without a specific averment of failure to give it in satisfaction of subsection (6) of Section 28 of the Land Use Act. At any rate, the plaintiff did not make it part of his case, and even if the 1st defendant made an issue of it which it did not; the evidence on notice to revoke arose in the course of cross examination D.W. 2. See Akinfosile v. Ijose 1966 5 FSC 192.

Although pleadings are not supposed to include evidence, they are expected and required to contain facts that will assist the court in arriving at a just determination of a case.

On the appellant’s contention that the defendant failed to prove the legality of the revocation, and his reliance on the cases of Elias v. Omobare 1982 5 SC 25, Imana v. Robinson 1979 3 – SC1, and Osawaru v. Ezeiruka 1978 6 – 7 SC 135, I find no place for that in this exposition because the plaintif has not proved his case for the burden shifts only after the party asserting has proved his assertion. A plethora of authorities abound that a party in a suit for declaration of title to land cannot depend on the weakness of an opponent’s case to succeed. See Kodilinye v. Odu 1935 2 WACA 336, Akinola v. Olowu 1962 1 SCNLR 352, and Ibeziako v. Nwegbogu 1970 1 NMLR 113.

I will repeat here again, that the plaintiff did not complain of lack of notice in compliance with the provision of Section 28 of the Land Use Act, in making his case in the court of first instance, and so he couldn’t have been allowed to do so on appeal, for it was like attempting to improve his case at a higher level, which is unfair on his opponents. The plaintiff understood very well the reason for the revocation of the certificate of occupancy, for by the singular act of opting to assign the property covered by the certificate of occupancy, he admitted he had no right to it, in view of the policy of the Rivers State Government at that time. It is in this light that I subscribe to the observation of the court below which reads:-

“This is a situation in which the Plaintiff/Respondent surrendered the plot. The Government accepted the surrender and went on to reallocate the property. Going by all the above one could see that the issues were patent and cogent enough to warrant pronouncement on that aspect of the case but strangely enough the lower court simply glossed over them”.

The submission of the learned counsel for the appellant under this issue is that the defendants did not base their defence on any alleged surrender of his statutory Right of Occupancy over the plot by the plaintiff to the Government. It was submitted that the evidence of the plaintiff reproduced in the judgment at page 204 of the Record of proceedings did not on the pleading amount to a surrender of the Right of Occupancy over the property by the plaintiff to the Government. It was a decision taken by the Government on the basis of an alleged one man one plot policy. Accordingly the 1st plaintiff did not surrender his Right of Occupancy over the plot in dispute to the Rivers State Government. The Right of Occupancy needed to be revoked according to law for the property to legimately revert to the Government. It is further submitted that in the circumstance, since by their own admission, the military Governor revoked the plaintiff’s Right of Occupancy by virtue of Section 28 (5) of the Land Use Act, the overriding issue for determination therefore becomes whether the revocation was in compliance with the provision of the Land Use Act, and a pronouncement on whether or not there was a surrender of plot in the circumstance was no longer pivotal to the determination of the claims of the plaintiff.

In her brief of argument, Mrs. Minakiri, of learned counsel for the 1st respondent did argue that the appellant though evasively pleaded the surrender of the properly in dispute in paragraph 12 of his amended statement of claim, he actually admitted same in both his evidence in chief and cross examination.

The 2nd respondent has in its brief of argument submitted that the trial court erred when it omitted to make a pronouncement on the issue of surrender of plot A27 which was the heart of the matter; and the said omission by the trial court did not prevent the Court of Appeal from looking into those issues. He placed reliance on the cases of Okonji v. Njekanma 1991 7 NWLR part 202 page 131, and Weli v. Okechukwu 1985 2 NWLR part 5 page 3.

The 3rd respondent’s counsel has replied that the issue of surrender was pleaded by the parties and evidence was amply led on same by the plaintiff. I have already reproduced the relevant averment into the final amended statement of claim above.

A careful reading of paragraphs (12), (13) and (14) of the final amended Statement of claim that infers that the appellant surrendered the property in controversy, for by agreement to assign the residue of the lease to someone else, he has technically done so. In addition there was evidence in support of this, and the pieces of evidence have already been reproduced in this judgment. If there was no surrender why would the 1st appellant seek to assign the property to someone else (the fact that he attempted to assign the properly to someone else, his common law wife not withstanding). A part of the plaintiff’s evidence which is worthy of note reads:-

“Minute on letter admitted as exhibit 12A. The Governor said that this property should be assigned to the 2nd Plaintiff. He minuted on the letter to the Secretary to the Military Government and called him and handed over the letter to him”.

With utmost respect, the minute merely reads:-

“SMG

P1 process this appeal to me along with the attached one.”

Not that this inconsistency matters on the issue of surrender, but the evidence reproduced above reinforces the fact that the 1st plaintiff was agreeable to the surrender of the property. The appellant’s stance that the position taken by the learned Court of Appeal that the learned trial judge did not consider crucial issues that arose and held that the plaintiff surrendered was no requirement for notice is not altogether correct. What led the court to this finding is the fact that that fact was not pleaded as is demonstrated by the following excerpt of the judgment:-

“It also held that no notice was served on the plaintiff/respondent before the certificate of occupancy was revoked. That point was never made an issue at the trial and did not in fact arise going by the circumstances of the case.”

I am guided by the authors of Halsbury’s Laws of England fourth Edition Reissue page 496 paragraph 524 in which the theory of surrender was propounded thus:-

“A surrender is a voluntary act of the parties whereby, with the landlord’s consent, the tenant surrenders his lease to the landlord so that the lease merges with the reversion and is thus brought to an end. It is defined as being the yielding up of the term to the person who has the immediate estate in reversion in order that, by mutual agreement, the term may merge in the reversion. The surrender may be either express, that is by an act of the parties having the expressed intention of effecting a surrender, or by operation of law, that is as an inference from the acts of the parties. The parties to the surrender must be the owner of the term and the owner of the immediate reversion expectant on the term. Consequently an undertenant cannot surrender his underlease to the head landlord. A surrender must be of the entire term in the premises; hence a tenancy held jointly cannot be surrendered by one of two joint tenants. A part only of the demised premises may, however, be surrendered”.

The above juxtaposed against the facts, position and circumstance of the present case has convinced me that surrender took place i.e. the plaintiff surrendered, the property in dispute to the Government of River State. Consequently, the said Government was right to have allocated the property to the 3rd respondent, having taken into account the provision of Section 27 of the Land Use Act supra.

In the light of the above discussion I resolve issues (1) and (2) in favour of the respondents, and dismiss grounds (1) and (3) of appeal to which they are married.

In canvassing argument to cover issue (2) formulated in the appellant’s brief of argument, learned counsel submitted that the Court of Appeal was wrong in the circumstance to assume the responsibility of evaluating the evidence led at the trial court ascribing probative value to same. According to learned counsel the evaluation of evidence and the ascription of probative value to such evidence are the primary function of the trial court which saw, heard and assessed the witnesses as they testified in the witness box. He placed reliance on the case of Ike v. State (2001) 7 NSCQR 277. The learned counsel further submitted that the situation was not such where the Court of Appeal was in a good a position as the trial court to evaluate the evidence of the witnesses at the trial court before it decided the issues, and even after it assumed that function, the Court of Appeal failed in the end to evaluate the evidence of the witnesses. It is further submitted that the Court of Appeal had no competence to assume jurisdiction on an issue that the trial court did not consider. See Jinadu v. Esurombiaro 2005 14 NWLR part 944 page 142. The correct thing to do was for the Court of Appeal to order a retrial, and not to dismiss the appellant’s suit, he added. Learned counsel referred to the cases of Udenewu v. Uzuegbu & Ors 2003 15 NSCQR 262, and Nnorodim & Anor v. Ezeani & Ors 2011 5 NSCQR 510.

In her reply the learned counsel for the 1st respondent argued that an order for retrial is not appropriate when the plaintiffs case has failed in toto. See Abibu v. Bintu 1988 1 NWLR part 68 page 57. It was argued that in the face of the strong evidence of surrender, which ever way one looks at it, the plaintiffs case failed in toto and there was no interest vested in him that required a revocation notice before the assignment to the 3rd defendant contrary to the trial judges demand when he allowed his reasoning to be beclouded by extraneous issues by stating as follows:-

“Assuming Government made a mistake what atonement has Government made for its mistake. It wants the plaintiff loose the property and also throw away the fees and the money he has spent in developing the property. With respect I agree with the Plaintiff that the 1st Defendant has not complied with the law and procedure laid down by the Land Use Act in purporting to revoke the plaintiffs Right of Occupancy and Certificate of Occupancy (C of O).” Again, Musa Iyafi v. Sule Eyigebe 1987 7 SCNJ was referred to on the impropriety of an order of retrial.

The learned counsel for the 2nd respondent aligned himself with the above submissions arguing that the learned trial judge raised the issues suo motu, as they were not part of the pleadings and evidence, but part of the appellant’s counsel’s final address, which the learned trial judge wrongly treated as if it constituted evidence on record. See Shagi v. Smith 2009 18 NWLR part 1173 page 330. The learned counsel has accordingly submitted that where a trial court as in the instant case draws wrong inferences from prima facts, the appellate court would be right to interfere and to reject the inference and make what it considers to be the right inference supported by evidence. He relied upon the cases of Lagga v. Sarhuma 2008 16 NWLR part 725, and Finnih v. Imade 1992 1 NWLR part 219 page 511. ON AN order of retrial, learned counsel argued that it is when a trial court fails in its primary duty of making findings of facts on issues joined on the pleadings and on the evidence in such a way that an appellate court cannot make its findings and come to a decision on all the relevant issues that an order of retrial is a proper order an appellate court should make. See Edjekpo v. Osia 2007 8 NWLR part 1037 page 63 5. This is not the case in the instant case and these are the contentions of the learned counsel, who in addition argued that Section 15 of the Court of Appeal Act gives the Court of Appeal authority to evaluate evidence and not send the case for rehearing. It was further submitted that a retrial was not a reasonable and legitimate order to make in the circumstances of this case, Reliance was placed on the cases of Ugwu v. Ogbuzuru 1974 10 SC 133, Olatunji v. Adisa 1995 2 NWLR part 376 page 167 and Oro v. Falade 1995 5 NWLR part 396 page 385.

In his reply the learned counsel for the 3rd respondent has submitted that having regards to the finding of the Court of Appeal that the plaintiff failed totally to prove his case at the trial, a retrial is not an appropriate order to make in the circumstance. Reliance was placed on the cases of Godwin Ogolo & Ors v. Chief Joseph Ogolo 2003 18 NWLR part 852 page 494, and Abilawon Ayisa v. Olaoye Akanji & Ors 1995 7 NWLR part 456 page 129.

I will expound on the above argument what I consider to be a sacrosanct requirement of the law when a party institutes an action against an opponent. A litigant who seeks to succeed in his action must state all his complaints and the remedy he is seeking in his statement of claim.

What it means is that his cause of action and his grievances must be contained in statement of claim, with which he is bound, for any matter outside the periphery of the statement of claim i.e. pleadings vide evidence goes to no issue and are bound to be ignored. See Emegokwe v. Okadigbo 1973 4 SC. 113, Shell P. B. v. Abedi 1974 1 SC 23, and Umuoffia v. Ndem 1973 2 SC 69.

Another important aspect of an action is proof of the content of the pleading. In this respect, the law is trite that actions are proved on preponderance of evidence and balance of probabilities. See Elias v. Omo-Bare 1982 5 SC. 25, Woluchem v. Gudi 1981 5 SC. 291, and Akinlemibola v. C.O.P. 1976 6 SC. 205.In the case at hand, the pertinent question I will ask here is, did the plaintiff/appellant plead and prove his case according to the above principles of law Before I attempt to answer this question, I will like to reproduce a very salient excerpt of the judgment of the learned trial judge, which in fact to my mind constitutes the reason for the success of the litigation in that court. It reads:-

“With respect, I agree with the Plaintiff that the 1st Defendant has not complied with the law and procedure laid down by the Land Use Act in purporting to revoke the plaintiff ‘s right of Occupancy and certificate of occupancy. For example no notice to revoke the certificate of occupancy was served on the plaintiff as required by law. Notice means written notice. See Section 44 of the Land Use Act”.

I cannot fathom how the learned trial judge arrived at the above, when in fact the plaintiff neither pleaded this failure to be served with notice of revocation nor did he give evidence of such failure in his evidence. With due respect, it was as though the learned trial judge was eager to make a case for the plaintiff, so to speak. When a party does not-make-an issue of a fact, it is not for a judge to go out of his case to do so. I believe the learned trial judge predicated his judgment on this failure of notice, and in fact did not give the issue of surrender of the property the attention it deserved, in spite of the overwhelming evidence before him on what led to the revocation, other than the following:-

“The policy of one man one plot in a GRA on which Government relies does not appear to have been well-known to its functionaries from the number of revocations of allocations of plots arising from the Sanomi Report. It seems from the evidence that Sanomi introduced it, not highlighted it. The policy therefore unfortunately has a retrospective effect which is repugnant.”

The above view may not be incorrect but I will not overlook the plaintiff s testimony that he appeared before the Sonami Commission, and he was told that he would have to forfeit one of the two properties he owned in the GRA concerned, and he agreed. I will also not overlook the fact that the plaintiff admitted that he applied for two government plots on the same date in his name and he was granted allocations to the two properties around the same time. By virtue of the content of Exhibit “26”, the Rivers State of Nigeria official Gazettee No. 3 of 1986, the property in controversy had its right and certificate of occupancy revoked.

The court below as was empowered by Section 15 of the Court of Appeal Act evaluated the evidence in the record of proceedings.

Now, I will go back to the position of the law as regards proof in a litigation.

By virtue of Section 135 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990, he who asserts must prove. See Imana v. Robinson 1979 3 – 4 SC. 1

It is after a plaintiff has proved his case that the burden of proof shift to the defendant. The question now is, did the plaintiff prove his case to the extent that the burden shifted By virtue of paragraphs (19) and (20) of the plaintiffs’ pleading they asserted that the revocation of the certificate of occupancy in respect of the property in dispute was unconstitutional, but they have not succeeded in establishing that fact by evidence. They may have proved that they expended money in erecting building on it, but then at the end of the day, they, did not claim the amount as per the reliefs they were claiming, in paragraph (24) of the plaintiffs second further amended statement of claim. The pivot of the plaintiff ‘s case is that the revocation and seizure of the property was unconstitutional, but I do not see in his evidence that he proved the unconstitutionality of the revocation, especially on the face of paragraphs (12), (13), (14) (15) and (16) of his pleadings, (14) of which particularly was not successfully proved, as found in the earlier part of this judgment. In view of the above facts, I am not satisfied that the plaintiff discharged the burden placed on him by Section 135 of the Evidence Act supra. The 1st defendant may have raised various defences to cover their action vide paragraphs (9), (10) and (11) of the final statement of defence of the 1st defendant, and averments of the 2nd and 3rd defendants. I cannot see that the failure to prove some of the facts are of any negative significance, considering the settled position of the law that a party will not be allowed to rely on the weakness of the case of the opponent. See the cases of Kodilinye v. Odu, Akindola v. Oluwo and Ibeziako v. Nwagbadu supra.

As a matter of fact. I am intrigued by, the averment in paragraph (11)(b) of the 1st defendant’s statement of defence, which also states that the plaintiff is estopped from contesting the revocation of his rights of occupancy and the cancellation of his certificate of occupancy in that he had agreed to forgo his interest in the plot. Again, this is the gravamen of this case, which seemingly the learned trial judge did not appreciate. So as much as the plaintiff has claimed that the 1st defendant is estopped from revoking the rights of occupancy, the 1st defendant has also claimed same against the plaintiff as regards the property he has already surrendered.

In the light of all the facts contained in the printed record of proceedings and the treatment of the issues above, I am not convinced that the plaintiff proved his case against any of the defendants, and in the words of the court below, ‘the claim of the plaintiff/respondent in suit No.PHC/557/86 in the lower court fails’. This is not a case that calls for retrial, and the Court of Appeal was right not to have ordered a retrial, and this court is also not inclined to do so. This is not a case where an order of retrial can be made. See Anyaoke v. Adi 1986 3 NWLR part 31 page 731, Elias v. Disu 1962 1 SCNLR 361, and Okeowo v. Migilore 1979 11 SC. 138. Issue (3) in the appellant’s brief of argument is hereby resolved in favour of the respondents, and ground (2) of appeal to which it is related fails, and it is hereby dismissed.

In the final analysis this appeal fails in its totality and it is hereby dismissed. Cost is ordered at N50,000.00 in favour of each respondent against the appellant.

SC.207/2004