Rufus Isaac V Ohn Odigie Imasuen (2016)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Benin Division, delivered on 25th April 2006 affirming the decision of the trial Court, the High Court of Edo State, in Suit No.B/I/84 dated 1st March 1994. The Court which judgment is being appealed against will, from now on, be referred to as lower Court. The brief facts of the case which inform the appeal are hereinunder captured.
The respondent was the plaintiff with the appellant being the defendant at the trial Court. By the endorsement in paragraph 21 of his further amended statement of claim dated 29th June 1988, the respondent claimed against the appellant declaration of title to the right of occupancy to the land in dispute delineated and verged pink in plan No.150/BD/1091/86 of 29-7-86, damages for trespass and injunction.
Pleadings were filed and exchanged. Trial proceeded on the basis of respondent’s amended statement of claim at pages of 19 – 21 of the record of appeal dated 7th October 1986 and appellant’s 2nd further amended statement of defence at pages 42 – 45 dated and filed 5th November 1990. From the pleadings and
1evidence on record, respondent’s case is that in January 1979, the appellant, on being found on the land in dispute and challenged by the respondent, informed the latter that he acquired the land six years earlier. The respondent reported the matter to the Oba of Benin’s palace as confirmed by PW8, Chief Ojo Udobor, the Esasonyen of Benin. A committee including Chief Ojo Udobor was constituted and delegated to enquire into the issue and report back to the palace. The Oba’s inability to settle the matter explains the respondent’s resort to the writ of summons and the suit against the appellant that brought about this appeal.
Appellant’s case is a total denial of respondent’s entitlement to the reliefs he seeks. Appellant does not, however, counter claim.
After a full trial, including counsel’s addresses, the trial Court found for the respondent. Aggrieved by the trial Court’s decision, the appellant appealed to the lower Court on a Notice filed on 8th March 1994 containing a sole ground. In addition to his original ground the appellant, with leave of the lower Court, filed two additional grounds of appeal which, without their particulars, read as follows:-
“(i) The
2 learned trial judge erred in law when she granted the plaintiff a declaration to the parcel of land in issue.
(ii) The learned trial judge erred in law when she failed to apply the equitable doctrine of laches and acquiescence in the instant case.”
From the three grounds of appeal, the lower Court was urged to determine the appeal on the basis of the lone issue distilled by each of the parties to the appeal.
Appellant’s issue for the determination of the appeal at the lower Court reads:-
“Whether the respondent was entitled to the declaration of title sought at the lower Court.”
Respondent’s issue at the lower Court reads:-
“Whether on the evidence led by the plaintiff (Respondent) he had proved his case in balance of probabilities to entitle him to the declaration of title he sought and which was granted by the learned trial judge.”
At paragraphs 4.06 – 4.07 of the appellant’s brief at the lower Court it was argued that the respondent having stood by was guilty of laches and acquiescence and that it is inequitable for the trial Court to have found for him.
Aderemi JCA (as he then was) in a well considered leading judgment at pages 135 – 158 found no merit in the appeal
3 which he dismissed and affirmed the trial Court’s judgment.
Still dissatisfied, the appellant has appealed to this Court on a lone ground. The ground without its particulars reads:-
“The learned Justices of the Court of Appeal erred in law when they failed to apply the doctrine of laches and acquiescence in the determination of the above named appeal.”
The issue for the determination of the appeal distilled by the appellant from his lone ground reads:-
“Whether the respondent was not guilty of laches and acquiescence in that he stood by and waited for the appellant to complete his residential building and moved in before he instituted his civil action against the appellant.”
Respondent’s issue on the other hand reads:-
“Whether from the pleadings and evidence in the record of proceedings in this Appeal the equitable defence of laches and acquiescence did arise and/or whether the Respondent was guilty of it.”
Arguing appellant’s lone issue, learned appellant counsel contends that the writ of summons taken out by the respondent on 4th January 1984 was served on the appellant at his completed house situate at the land in dispute. The appellant, it is submitted, started
4 building in 1979 and the respondent stood by for five years before instituting his claim against the appellant. DW2, it is further submitted, had advertised appellant’s application for the grant of certificate of occupancy in the Nigerian Tribune newspaper of 16th May 1980. Having failed to assert his right to the land in dispute inspite of these facts, it is argued, respondent is foreclosed from doing so by this suit. Learned appellant counsel relies on the decisions in S.A.T. Taylor & Ors v. Kingsway Stores of Nigeria Ltd & Or (1965) NMLR 103 and Akpan Awo v. Cookey Gam 2 NLR 100 and prays the resolution of their lone issue in appellant’s favour and allowing the appeal as well.
Responding, the defence of laches and acquiescence, submits learned respondent counsel, was neither raised nor canvassed at the trial Court by the appellant. Defences, it is further submitted, must specifically be pleaded. Appellant’s failure to specifically plead the defence of laches and acquiescence in his 2nd further amended statement of defence is fatal to his appeal. The leave granted the appellant by the lower Court to raise an additional ground of appeal touching on the
5 defence of laches and acquiescence that had not been pleaded, contends learned counsel, does not cure the defect. Relying on Onuwaje v. Ogbeide (1991) 3 NWLR (Part 178) 147 at 153, learned respondent’s counsel urges that the lone issue in the appeal be resolved against the appellant. He also urges that the appeal be dismissed.
The issue this appeal raises is indeed a narrow one: can the respondent who, having pleaded and established by credible evidence facts on which his claim predicates be lawfully refused the reliefs he seeks against the appellant who neither pleaded nor established his entitlement to the equitable defence of laches, acquiescence and standing by I think not.
It is an elementary principle that decisions of a law Court proceed not only on the basis of pleaded facts but also on the basis of the facts as established by evidence in that behalf. Thus any decision of a Court which proceeds in the absence of the party’s pleadings and/or evidence in proof of the pleadings, being perverse, would not endure on appeal. See Okonkwo v. C.C.B. (Nig) Plc (2003) 8 NWLR (Pt 822) 347, Thompson v. Arowolo (2003) 7 NWLR (Pt 818) 163 and Adake v. Akun (2003) 14 NWLR (Pt 840) 418.
In the case
6 at hand, learned appellant’s counsel appears to have underestimated the place of pleadings, particularly in respect of facts a party desires to rely upon as defence to a claim, in the adjudication process. The appellant had to seek leave of the lower Court to file an additional ground of appeal to enable him raise a complaint of the delay the respondent is being alleged to be guilty of before instituting the instant action. Inspite of the leave the lower Court granted the appellant to raise and argue laches and acquiescence as a fresh issue, Aderemi JCA as he then was never considered the matter in the course of determining the appeal as lacking in merit.
It is Shoremi JCA (as he then was) who, in his concurring judgment, correctly considered the issue and held at page 161 of the record as follows:-
“The learned counsel to the appellant in his ground II which reads, I quote,
‘The learned trial judge erred in law when she failed to apply the equitable doctrine of laches and acquiescence in the instant case.’
On a perusal of his second Further Amended Statement of Defence, there was nowhere where he pleaded the defence now raised.
The nearest he came to is stated in
7
paragraph 22 thus:-
’22. The defendant will at the trial rely on all legal and equitable defence and contend that the plaintiff’s claim is frivolous, vexative and speculative and should be dismissed.’
This is not positive on the defence of laches or acquiescence.
The defence now raised was neither pleaded nor canvassed at the lower Court. The defence of laches and acquiescence must be specifically pleaded.
The respondent was at all times vigilant and therefore cannot be said to have by his conduct done anything that can be regarded as a waiver of his remedy.” (Underlining mine for emphasis).
It is correct to say that the lower Court is wrong to have omitted, in the leading judgment, a decision one way or the other the issue of laches and acquiescence the appellant was granted leave to raise. The foregoing position of Shoremi JCA however remains unassailable and obviates whatever miscarriage of justice the appellant appeals to have suffered.
A defendant such as the appellant is not entitled to rely upon a defence which is based upon fact not stated in his Statement of defence. The facts a defendant alleges and relies upon must be stated specifically in his
8 pleadings by way of a special defence. Having not pleaded the facts on which he seeks to found his special defence, and the defence not being in respect of such matters pleaded by the respondent, the appellant must not be allowed to make any case outside the matters he pleaded. See: E. O. Amodu v. Dr. J. O. Amode & anor (1990) 9 10 SC 61; Morohunfola v. K.S.C.T. (1990) 7 SC (Pt.1) 40. This Court has, in very many cases, emphasized that parties only safeguard their interest if they strictly adhere to the rules of pleading the conduct of their cases. Because their main function is to ascertain the various matters in dispute among the parties and those on which some agreement have been attained with such degree of certainly that is humanly possible, pleadings must be sufficient, comprehensive, and accurate. Every pleading, particularly those which raise special defences, must contain statement of all the material facts on which a defendant bases his defence to avoid surprise to the plaintiff.
In the case at hand, where the appellant’s 2nd amended statement of defence is bereft of concise and sufficient statement of facts on which the defence of laches and
9acquiescence is being rested, it would be illegitimate to allow the appellant, in the circumstance, press the defence. Notwithstanding the seeming potency of the submission of his counsel, arguments so advanced in departure from the pleadings on record go to no issue as well. See Moses Uzochukwu & Ors v. Madam Amaghalu Eri & Ors (1997) 7 SCNJ 238 and Nigerian Railway Corporation v. Dr B. Odemuyiwa (1974) 1 SC 9.
It is thus for the respondent herein who claims declaration of title to the land in dispute, trespass and injunction against the appellant to establish his title by supplying credible evidence in proof of his pleadings. The onus thereafter shifts on to the defendant to show that his own possession, on the application of equitable rules by the Court ousts the appellant’s possession who resultantly refused the reliefs he seeks. In the case at hand, even where one accepts, paragraph 18 in the appellant’s 2nd further amended statement of defence, vague as it is, as reference to the defence of laches, acquiescence and standing by, it cannot indeed be said that the appellant has either pleaded and/or established facts upon which the defence could be sustained. See
10 Adesanya v. Otuewu (1993) 1 NWLR (Pt.270) 414 and Odife v. Aniemeka (1992) 7 NWLR (Pt.251) 25.
In the case at hand, therefore, both Courts below are right in their concurrent findings that the respondent, who has established a better title, the owner of the land dispute and the appellant who, being unable to plead and prove facts on the basis of which the equitable defence he alleges enures to him hangs, is a trespasser. A trespasser does not by virtue of his act of trespass acquire lawful possession of the land. The respondent, from his pleadings and evidence thereon remains in exclusive possession of the land in dispute which possessory right the appellant is established to have violated. See Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 172 and Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337 at 363-364.
In the result, I resolve appellant’s lone issue against him and dismiss his appeal for lack of merit. The decision of the trial Court as affirmed by the lower Court is hereby further affirmed. I put the costs of the appeal at N200,000.00k (Two Hundred Thousand Naira) and award same against the appellant in favour of the respondent.
SC.172/2006