H. R. H. EZE I. A. IKONNE v. ORJI EZIEME (2010)

H. R. H. EZE I. A. IKONNE v. ORJI EZIEME

(2010)LCN/4059(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of November, 2010

CA/PH/27/2003

RATIO

JOINDER OF ISSUES: WHEN CAN IT BE SAID THAT PARTIES TO A SUIT HAVE JOINED ISSUES ON A QUESTION

It is only when parties to an action has answered one another’s pleadings in such a manner that they have arrived at some material point or matter of fact affirmed on one side and denied on the other side, that it is said that they have joined issue on a question. See e.g. Albert Ebenogwu & 1 Or. vs. O. O. Onyemaobim (2008) 3 NWLR (Pt. 1074) 396 at 427. PER MOJEED ADEKUNLE OWOADE, J.C.A.

JOINDER OF ISSUES: DEFINITION OF “JOINDER OF ISSUES”

PERVERSE FINDING: MEANING OF A PERVERSE FINDING

A perverse finding is one which ignores the facts or evidence before the court and when considered as a whole amounts to a miscarriage of justice. See Odiba vs. Azege (1998) 9 NWLR (Pt. 566) 370 and Edoho vs. State (2004) 5 NWLR (Pt. 865) 17. A finding is perverse if it is not borne out of the evidence before the court. A perverse finding is a finding which is not only against the weight of evidence but is altogether against the evidence itself. It is a finding which no reasonable tribunal should have arrived at in the light of the evidence before it. Per Niki Tobi, JSC in Iliya Akwai Lagga vs. Audu Yusuf Sarhuna (2008) 16 NWLR (Pt. 1114) 427 at 474. In the same case of Lagga vs. Sarhuna (supra) at page 462, a judgment of a trial court is said to be perverse if it does not flow from the evidence adduced by the parties. With respect, I would add that a judgment of a trial court would also earn the name of a perverse judgment if the conclusion in the judgment as in the instant case does not flow from the findings of the court. PER MOJEED ADEKUNLE OWOADE, J.C.A.

INTERFERENCE WITH FINDING OF FACT: CIRCUMSTANCES UNDER WHICH AN APPELLATE COURT WILL ORDINARILY INTERFERE WITH THE FINDINGS OF A TRIAL COURT

ORDER OF NON-SUIT: CIRCUMSTANCE UNDER WHICH AN ORDER OF NON-SUIT WILL BE MADE

An order of non-suit is usually made in the interest of justice, and not for both parties. Ogbechie vs. Onochie (1988) 1 NSCC 211 at 230. For if as in this case, the dismissal of the claim might work injustice to the plaintiff/appellant and no injustice or hardship need result to the defendant/respondent from non-suiting the plaintiff, an order of non-suit would produce juster result. See Awosanya vs. Alh. Algata & 1 Anor. (1965) 1 All NLR 288. Recently, the Court of Appeal revisited the principles of non-suit in the case of Joel Anode vs. Samuel Mmeka (2008) 10 NWLR (Pt. 1094) 1 at 20. Saulawa, JCA, who read the lead judgment of the court held that: “It is trite principle of law that an order of non-suit decided nothing in respect of the matter in dispute between the parties. It merely gets rid of the pending action; leaving the claimant at liberty to start de novo, either in the same or subsequent suit. See Okpala vs. Ibeme (1989) 2 NWLR (Pt. 102) 208 at 213. An order of non-suit is normally made where there is no satisfactory evidence to warrant the court to give judgment to either party. See Aigbe vs. Edokpolo (1977) 2 SC 1 …..” And that: “In the instant, it is very clear that in view of the pleadings and evidence of the respondent and vis-a-vis those of the appellant at the trial, it would have been injudicious for the learned trial Judge to have dismissed the suit. The justice of the matter demanded that the respondent be accorded another chance to file a fresh suit if he so wished. Thus, the learned trial Judge was therefore right in making an order of non-suit rather than that of dismissal …” PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

H. R. H. EZE I. A. IKONNE Appellant(s)

AND

ORJI EZIEME Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of O. A. Otisi, J.  In Suit No. A/249/95 delivered at Aba, in the Aba Judicial Division of the High Court of Abia State on 19th May, 2001.
The appellant as plaintiff in the lower court issued a Writ of Summons against the defendant/respondent on 8th may, 1995 and by a statement of claim dated 20th April, 1996 claimed as follows:
“(a) An order of this Honourable Court SETTING ASIDE the Deed of Lease dated the 5th day of July, 1961 made between the plaintiff of the one part and one J. C. Awah (now deceased) of the other part registered as No. 30 at page 30 in Volume 268 of the Lands Registry in the office at Enugu (now Umuahia) on the ground that the Survey Plan No.BAN/126/60 of 17th May, 1960 attached to that Deed did not represent the extent of that portion of land known as and called “OKPULO NWAMAGHINNA” situate at Osusu in Aba North Local Government Area, granted to the said J. C. Awah which was the subject of the aforesaid Deed.
OR IN THE ALTERNATIVE
An order of this Honourable Court that the Survey Plan No. BAN/126/60 dated 17th May, 1960 purporting to represent the land demised under the aforesaid Deed be RECTIFIED to show the exact extent of the land which the plaintiff agreed to and granted to the said J. C. Awah.
(b) An injunction restraining the defendant by himself, or through his servants or agents from further interference with or developing any more than the land area of “220 feet by 100 feet” of the said “OKPULO NWAMAGHINNA” land verged yellow on the plaintiff’s said Survey Plan.
OR IN THE ALTERNATIVE
An order commanding the defendant to pay to the plaintiff the sum of N10,000,000.00 (Ten Million Naira) being General Damages for the trespass  into the plaintiff’s portion of the aforesaid “OKPULO NWAMAGHINNA” land.”
The defendant/respondent filed a Statement of Defence dated 9th June, 1999.  The plaintiff’s/appellant’s case by his pleadings is that the land in dispute forms part of a larger parcel of land belonging to the plaintiff/appellant and traditionally known as and called “OKPULO NWAMAGHINNA”.  That he had granted to one J. C. Awah a lease of four plots of the land measuring 100 feet by 50 feet each being part of the said “OKPULO NWAMAGHINA”.
The entire land he leased to J. C. Awah including allowances made was 220 feet by 110 feet and that this land was demarcated with “UKPO” trees pending when the land would be surveyed.  That J. C. Awah commissioned a surveyor who prepared the survey plan but included more land than was agreed between the parties so that the portion leased measured 5451.770 square yards instead of 2444.44 square yards or 110 feet by 220 feet.  That the plaintiff/appellant an illiterate, executed the Deed of Lease believing that the document granted to J. C. Awah was a lease of four plots of land.  J. C. Awah subsequently transferred his interest in the land to the defendant/respondent in 1980.  From the plaintiff’s/appellant’s account, it was only after that transfer that he discovered the defendant/respondent appropriated more plots of land than he had agreed with J. C. Awah.  He has alleged there was a mistake when he executed the Deed of Lease of 1961 to the extent that he understood the said lease to be granting J. C. Awah four plots of land.  That as soon as he became aware of the mistake he wrote the defendant/respondent to refrain from further trespass on the plots of land not covered by the agreement with J. C. Awah.  That the defendant/respondent ignored the warning but commenced development of the land in dispute.  The plaintiff/appellant had earlier sued the defendant/respondent in suit number A/156/81 but was non-suited.  Hence this present suit. The defendant/respondent on his part denied the plaintiff’s/appellant’s claims that he sold four plots to J. C. Awah.  The defendant/respondent averred that the plaintiff sold eight plots of the land in dispute to J. C. Awah and J. C. Awah in turn assigned the eight plots to him with the consent and knowledge of the plaintiff/appellant.
At the trial, the plaintiff gave evidence and called three (3) other witnesses, the defendant also gave evidence and called three (3) additional witnesses.
The learned trial Judge amongst other things, found that the plaintiff/appellant is indeed an illiterate but held in dismissing the plaintiff’s case at page 108 of the record that:
“It follows from the foregoing that even if the plaintiff is an illiterate, the presumption that Exh. “C” was properly interpreted to him having regard to the jurat contained therein has not been rebutted.  I therefore find that Exh. “C” represents the terms of the agreement J. C. Awah had with the plaintiff.  It is not open to this Court or even to any of the parties in the absence of the other to rewrite the terms thereof.  I find that the dimensions of the land leased to J. C. Awah by the plaintiff is as set out in Exh. “C” and measuring in area 5451.770 square yards…
I find that the plaintiff has not proved his case, that he is entitled to his claims.  This action is accordingly dismissed.”
Dissatisfied with this judgement, the plaintiff/appellant filed a Notice of Appeal containing three (3) grounds of appeal in this court on 13th August, 2001.  The parties filed and exchanged their briefs of argument.  The initial briefs for this appeal are as follows:
1. Appellant’s Brief of Argument dated 4/10/04, filed on 23/11/04 and deemed filed on 17/5/05 prepared by K. C. Nwufo, Esq.
2. Appellant’s supplementary Brief of Argument dated 30/5/06, filed on 12/1/06 and deemed filed on 15/1/07 settled by K. C. Nwufo, Esq.
3. Appellant’s Reply Brief dated 26/3/07 and filed on 24/4/07 settled by K. C. Nwufo, Esq.
4. Respondent’s Brief of Argument dated 5/10/05 and deemed filed on 15/1/07 settled by N. C. N. Ikeotuonye, Esq.
5. Respondent’s supplementary Brief of Argument dated 29/1/07 and filed on 31/1/07 settled by N. C. N. Ikeotuonye, Esq.
From his briefs of argument the appellant formulated three (3) issues for determination:
“1. Whether the learned trial Judge was right to hold that the plaintiff/appellant did not prove his case that it was 4 plots of land and not 5451.771 square yards (i.e. 8 plots of land) that he sold to J. C. Awah?
2. Whether the learned trial Judge was right when he held that the presumption that the contents of Exhibits “C”, “D” and “E” were explained to the plaintiff/appellant and that he understood the same nothwithstanding his illiteracy has not been rebutted?
3. Whether the judgment of the lower court is not against the weight of evidence before it?”
In the totality of the briefs submitted by the respondent, the sole issue set down for determination is:
“Whether from the state of the pleadings and evidence, the learned trial Judge correctly held that the appellant did not prove that the dimensions of land leased to J. C. Awah was four plots of 100 ft. by 50 ft. each and not 5451.770 square yards as shown in Exhibit “C” and the survey plan attached thereto?”
Learned counsel for the appellant argued Issues Nos. 1 and 3 together and submitted that the learned trial Judge erred when he held that the plaintiff has not proved his case that he is entitled to his claims and thereby dismissed the action.  In arguing that the plaintiff/appellant proved his case on the preponderance of evidence, appellant’s counsel reviewed the evidence of the plaintiff’s witnesses and that of the witnesses called by the defendant/respondent.  He submitted that at page 101 lines 10 to 12 of the Record of Appeal, the learned trial Judge found as a fact that the plaintiff was an illiterate person and at lines 3 to 17 at page 102 further found as a fact that the contents of both Exhibits “C” and “D” state the plots of land sold by the plaintiff/appellant to J. C. Awah to be 4 (four) plots of land known as and called “Okpulo Nwamaghinna” measuring 100 x 50 feet each plus allowances = 220 x 110 feet.  And that the learned trial Judge also found as a fact that to ascertain the primary measure of surface of plots of land sold to J. C. Awah, the applicable law was the Weights and Measures Acts, 1958.
Furthermore, learned counsel to the appellant quoted the findings of the learned trial Judge at page 104, lines 6 to 19 of the Record to the effect that:
“The plaintiff has testified as PW3, that he was not present when the land was surveyed by J. C. Awah’s surveyor.  This has not been controverted.  That he only knew more land than he sold had been surveyed when the defendant began to build on the land.  The usual practice is that the vendor shows the boundaries of the portion of the land being sold.  The plaintiff PW3, says he had demarcated the boundaries with “Ukpo” trees.  This has not been controverted.  A conclusion that may be drawn having regard to the aforementioned uncontroverted evidence is that the plaintiff in fact sold four plots and not eight plots and being an illiterate person did not appreciate that more land had been surveyed inspite of the jurat in Exhibit “C”.”
On these findings, learned counsel for the appellant submitted that it is crystal clear that the contents of Exhibits “C”, “D” and “E” never stated that the measures of plots of land sold to J. C. Awah to be 8 (eight) but 4 (four).  It is therefore not surprising that the plaintiff never knew that the survey plan contained more plots of land than the contents of both Exhibit “C” and “D”.  That, it is only a professional surveyor or a person literate in the interpretation of survey plans that could have determined that the survey plan in Exhibit “C” was more than 4 (four) plots.
Appellant’s counsel submitted further that what was read out for the plaintiff before he appended his signature on Exhibit “C” was its written contents and not the survey plan attached thereto.  And, that the principle of Non Est Factum avails the plaintiff/appellant in this regard.
Appellant’s counsel considered it unfortunate that in spite of the findings of fact that the plaintiff/appellant sold 4 (four) plots of land to J. C. Awah, and not eight plots, the learned trial Judge considered extraneous matters of payment of annual rents to explain Exhibit “E” and to erroneously hold that plaintiff did not prove his case that he sold only 4 plots of land to J. C. Awah and not 8 (eight).  This, counsel said is contrary to the provision of section 132 of the Evidence Act (Cap. 112) LFN, 1990.  Further on this, counsel relied on the cases of Royal Exchange Assurance Nig. Ltd. & 4 Ors.  vs.  Aswani ile Ltd. (1991) 2 NWLR (Pt. 176) p. 639 at 633 and NEPA  vs.  Alhaji S. I. El-Fandi (1986) 3 NWLR (Pt. 32) p. 884.
Counsel submitted that the amount of rents paid by the defendant cannot govern or determine the number of plots of land sold by the plaintiff to J. C. Awah and that on the principle of nemo dat quod non habet, the defendant could not have had more plots than J. C. Awah had from the plaintiff.  Besides, said appellant’s counsel, the defendant/respondent as DW4, admitted under cross-examination that he did not pay any annual rent to the appellant.
Learned counsel for the appellant also submitted that the payment of annual rent was not in issue before the trial court.  That, what was in issue was what number of plots of land was sold by the plaintiff to J. C. Awah and that the learned trial Judge grossly erred in law when he arrived at a verdict that was contrary to his findings of fact and thereby occasioning a miscarriage of justice to the appellant.
The only issue raised by the appellant in his supplementary brief of argument dated 12/6/06 and  deemed filed on 15/1/07 is:
“Whether the learned trial Judge was right when he held that the presumption that the contents of Exhibits “C”, “D” and “E” were explained to the plaintiff/appellant and that he understood the same notwithstanding his illiteracy has not been rebutted?”
On this score, learned counsel for the appellant submitted that the learned trial Judge was wrong when he held that the presumption that the contents of Exhibits “C”, “D” and “E” were explained to the plaintiff/appellant and that he understood the same notwithstanding his illiteracy.
Appellant’s counsel explained that in both Exhibit “D”, which was the original Agreement (receipt) between the appellant and J. C. Awah (deceased) and Exhibit “C”, that is the Deed of Lease dated 5th day of July, 1961 between the appellant and J. C. Awah (deceased), the quantum of land leased to J. C. Awah was stated to be “4 plots of land known as and called “Okpulo Nwamaghinna” measuring 100 x 50 ft. plus allowances 220 x 100 ft.”
Counsel submitted that the finding and holding by the learned trial Judge at page 104 of the record, that four plots of land which was agreed upon by the parties would be 2420 square yards, rebuts the presumption in the jurat and shows that what is reflected in the survey plan is more than 4 plots of land.
Appellant’s counsel submitted further that the learned trial Judge’s holding, at page 104, lines 13 – 19 of the record that: “A conclusion that may be drawn having regard to the aforementioned uncontroverted evidence is that the plaintiff in fact sold four plots and not eight plots and being an illiterate person did not appreciate that more land had been surveyed inspite of the jurat in Exhibit C”, eloquently rebuts the presumption in the jurat.
Finally, on this score, appellant’s counsel submitted that the appellant could not have understood what four plots of land were in square yards as can be seen from the evidence of DW1, DW3 and DW4 (who were illiterates) under cross-examination and that the admission of the respondent, as DW1, that the appellant wrote him in 1981 complaining that he (defendant/respondent) exceeded the dimensions of land J. C. Awah sold to him, and that the defendant/respondent does not know how many plots of land there are in 5000 square yards rebuts the presumption in the jurat.
In support of the respondent’s contention that the learned trial Judge correctly held that the appellant did not prove that the dimensions of land leased to J. C. Awah was four plots of 100 ft. by 50 ft. each and not 5451.770 square yards as shown in Exhibit “C” and the survey plan attached thereto.  Counsel noted that Exhibit “C” contains the following features:
“1. a jurat showing that the contents were read and explained to both parties who appeared perfectly to understand the same before executing the document;
2. the document was executed before a Magistrate; and
3. the document was prepared by a solicitor who acted for both parties.”
Respondent’s counsel then submitted that Exh. “D” shows that J. C. Awah paid 42 (Forty-two Pounds) for the four plots of land.  Exhibit “C” on the other hand shows the said J. C. Awah paid 82 (Eighty-two Pounds) for four plots of land measuring in area 5451.771 square yards.
The only feature common to both Exhibits “C” and “D” said respondent’s counsel is that both speak of four plots of land.  Counsel submitted that the appellant has to explain how if, the purchase price per plot is 10 (Ten Pounds) he received the sum of 80 (Eighty Pounds) for the same four plots of land.  He submitted that 80 (Eighty Pounds) translates to 10 (Ten Pounds) per plot for eight plots as shown in the survey plan attached to Exhibit “C”.
Learned counsel for the respondent submitted further that one or two excerpts from the judgment of the court further supports the contention that the learned trial Judge was right in his assessment of the available evidence.
First, on page 106 lines 9 – 23 of the record that:
“The plaintiff said in evidence in-chief that he was paid 40 (pounds) for four plots of land.  He did not explain or account for the different amount stated in Exhibit ‘C’, which is about double the earlier amount.  The issue of rent should be read together with the content of Exhibit “E”.  PW3 had said the rent was 2 = (two pounds) annually at 10 shillings a plot.  Then under cross-examination he said it was 3 = (three pounds) annually at 15 shillings a plot.  How does one explain Exhibit “E” which states the already paid yearly rent to be N48.00 up to and including 1983 and from 1984 increased to N96.00.  It cannot be as stated by PW3 that the rent was 2 (pounds which is N4 annually or 3 = (three pounds) which is N6 annually, if a yearly rent of N48.00 was paid up to and including 1983 which the increased rent becomes N96.00 per annum.”
Second, on pages 107 – 108 of the record that:
“…….He identified Exhibit “E” which he signed.  Exhibit “E” states the annual rent paid to be a total of N48.00 per annum.  If the plaintiff’s testimony that 3 (pounds) or N6.00 represented the total rent per annum, then the annual rent ought to be N6 and not N48.00.  The figure N48.00 would suggest that the annual rent was actually N6.00 per plot and for eight plots at N12 per plot.”
Learned counsel for the respondent then submitted that four plots of land measuring 100 ft by 50 ft each cannot be the same piece of land measuring 5451.70 square yards.  In this sense, the land leased to J. C. Awah by the appellant and evidenced by Exhibit “C” cannot be four plots of 100 ft by 50 ft each because such an interpretation will lead to absurdity.
Relying on the cases of Akaigbe  vs.  Idama (1964) 1 All NLR 322 at 326, Yesufu  vs.  Ojo (1985) 3 F.S.C. 106 at 107 and The British Bata Shoe Co. Ltd.  vs. Melikan (1956) 1 F.S.C. 100 on the principle that the provision in a statute or document should not be construed in isolation,  counsel argued that the above has to be the proper approach because the land is said to be properly delineated in a survey plan attached to Exhibit “C” and the dimensions of the land in the survey plan is 5451.770 square yards which is larger in area than four plots of 100 ft by 50 ft each.
The above represents the summary of arguments of parties to this appeal when it was first argued and heard on 9th day of February, 2010 and judgment was reserved.  However, by a letter dated the 18th day of February 2010, the court directed the Principal Registrar (Litigation) to invite counsel for both parties to this appeal to address the court on the following questions or issues:
1. Whether the learned trial Judge was right when he held at page 104 lines 6 to 19 that “the plaintiff has testified as PW3, that he was not present when the land was surveyed by J. C. Awah’s surveyor.  This has not been controverted ……….” When no such fact was pleaded.
2. Whether the learned trial Judge was right to have concluded at page 108 lines 10 – 15 that “the dimensions of the land leased to J. C. Awah by the plaintiff is as set out in Exhibit “C” measuring area 5451.770 square yards……” based on the evidence of payment of annual rents on which no issues were joined in the pleadings.
3. Whether the conclusion of the learned trial Judge at page 104 lines 10 – 15 that “a conclusion that may be drawn having regard to the aforementioned uncontroverted evidence is that the plaintiff in fact sold four plots and being an illiterate person did not appreciate that more land had been surveyed in spite of the jurat in Exhibit “C” ……….” is not  contradictory and inconsistent with the finding of the learned trial Judge in (2) above.
4. Whether if the answers to questions 1 and 2 or questions 1 or 2 are in the negative, there is no miscarriage of justice.
In reaction to the above questions by the court, the parties to the appeal filed further addresses as follows:
1. Appellant’s address on Issues raised “suo motu” by this Honourable Court dated 3/3/2010 and filed on 8/6/2010 – by K. C. Nwufo, Esq.
2. Respondent’s further written address on Issues raised “suo motu” by the Honourable Court dated 14/6/2010 and filed on 18/6/2010 – by Chief (Dr) Nally C. N. Ikeotuonye.
3. Reply on Points of Law dated 24/6/2010 – by K. C. Nwufo, Esq.
On the first question raised by the court, learned counsel for the appellant submitted that the learned trial Judge was right when he held at page 104 lines 6 – 19 of the record that “the plaintiff has testified as PW3 that he was not present when the land was surveyed  by J. C. Awah’s surveyor.  This, on the ground according to counsel that the appellant pleaded in paragraphs 10 to 17 of his statement of claim contained at pages 21 to 22 of the record, that J. C. Awah later commissioned a surveyor who drew up the survey plan of the lease of the land but the surveyor in his finished plan included more land that was agreed between the parties.
In contrast to the above, the respondent’s counsel submitted on question No. 1 that the learned trial Judge was wrong when he held at page 104 lines 6 to 19 that “the plaintiff has testified as PW3, that he was not present when the land was surveyed by J. C. Awah’s surveyor.  This has not been controverted….”
Counsel submitted that the appellant, as plaintiff, at the lower court did not plead the facts on which the evidence in issue was elicited or adduced by him as PW3.  That, in paragraph 10 of the statement of claim, the plaintiff/appellant merely averred, among other things that “…the lessee (the late Mr. J. C. Awah) commissioned a surveyor who drew up the surveyor plan of the lease of the land….” (pages 21 – 22 of the record).  That, the appellant did not plead the material fact that “…he was not present when the land was surveyed by J. C. Awah’s surveyor” Counsel relied on the case of Raphael Agu  vs.  Christian Ozurumba Ikewibe (1991) 3 NWLR (Pt. 180) 385 of 420 and submitted that a material fact must be specifically pleaded to avoid springing surprise on the opposite party.  And also, that evidence in respect of matters not pleaded goes to no issue and if wrongly allowed should be disregarded.
Still on this, respondent’s counsel relied on the cases of Chief Moneyman R. M. Princewill & Ors.  vs.  Oruye O. Amachree & Ors. (2005) 3 NWLR (Pt. 912) 358 at 375, Bamgboye  vs.  Olarewaju (1991) 4 NWLR (Pt. 184) 132, Titiloye  vs.  Olupo (1991) 7 NWLR (Pt. 205) 519, Adebuyo  vs.  Shogo (2005) 7 NWLR (Pt. 925) 467 at 480 and Dr. O. A. Falomo  vs.  Oluwole Onakanmi (2005) 11 NWLR (Pt. 935) 126 at 154.
On question No. 2, learned counsel for the appellant submitted that the learned trial Judge was wrong to have concluded at page 108 lines 10 to 15 of the record “the dimensions of the land leased to J. C. Awah by the plaintiff is as set out in Exhibit “C” measuring an area of 5451.770 square yards…. based on  the evidence of payment of annual rents….”.
Appellant’s counsel submitted that the parties never joined issues in their pleadings that payment of annual rents was the basis to determine the dimensions of the land leased to J. C. Awah by the plaintiff.  The plaintiff’s/appellant’s case is that he sold four plots of land to J. C. Awah as shown in both Exhibits C and D.
Appellant’s counsel relied on the cases of Buhari  vs.  Obasanjo (2005) 11 NWLR (Pt. 941) 1 at 256, Awojugbagbe Light Ind. Ltd.  vs.  Chinukwe (1995) 4 NWLR (Pt. 390) 379 at 427 and submitted that the learned trial Judge had no competence to determine an issue beyond the scope of what was put in issue by the parties by their pleadings and for  which parties did not join issue.
Learned counsel for the respondent, on the other hand said that the payment of annual rent is a relevant matter, which the learned trial Judge rightly took account of in determining this case.
That, in paragraph 5 of the statement of claim, the plaintiff/appellant pleaded a Memorandum of Agreement dated 9th April, 1960, and tendered as Exhibit D as proof of receipt of the sum of 40 paid by J. C. Awah for 4 plots of land measuring 100 ft and 50 ft each, that is 10 per plot of land.  Also, that in paragraph 6 of the statement of claim, the plaintiff/appellant pleaded a Deed of Lease dated 5th day of July 1961 made between the plaintiff/appellant of the one part and J. C. Awah of the other part, and registered as No. 30 at page 30 in volume 260 of the Lands Registry in the office at Enugu now Umuahia which was tendered in evidence by the plaintiff/appellant as Exhibit C.
Respondent’s counsel submitted that Exhibit “C” shows that:
“(a) 82  (Pounds) was paid as premium for the lease.
(b) The land leased measured 5451.770 square yards.
(c) The land leased is surrounded by survey beacons Nos. EH 1185, EH 1186, EH 1187 and EH 1188.
And that, in paragraphs 6, 7, 14(c) (d) (e) and 16(b) of the Statement of Defence, the defendant/respondent joined issues with the plaintiff/appellant on Exhibits C, D and E.”
Both parties to this appeal through their respective counsel agree that the finding of the learned trial judge in respect of question No. 2 is inconsistent and contradictory to the finding of the learned trial Judge on question No. 3.  Still on this, appellant’s counsel submitted that this is precisely the reason why the conclusion of the learned trial Judge in question 2 cannot be allowed to stand.  Respondent’s counsel on the other hand maintained that in spite of the inconsistent and contradictory findings of the learned trial Judge between questions Nos. 2 ad 3, the learned trial Judge nevertheless came to the right decision in this case.
At this stage, this appeal permits of the following observations.
First, the finding of the learned trial Judge at page 104 lines 6 to 19 that “the plaintiff has testified as PW3, that he was not present when the land was surveyed by J. C. Awah’s surveyor.  This has not been controverted….”  If permissible would have enured in favour of the plaintiff/appellant, but in the circumstances of this case, truly is irrelevant and goes to no issue because it is not supported by the pleadings.
Paragraphs 10 and 11 of the plaintiff’s/appellant’s statement of claim at pages 21 to 22 of the record merely state:
“10    The lessee (the late Mr. J. C. Awah) commissioned a surveyor who drew up the survey plan of the lease of the land but the surveyor in his finished plan included more land than was agreed between the parties.  The survey plan. No. BAN/126 dated 17th day of May, 1960 attached to the Deed of Lease referred to in paragraph 6 above purported to measure 5451.770 square yards instead of the agreed area of 110 ft by 220 feet or about 2444.44 square yards.
11.    The plaintiff who is and has at all times material to this suit been an illiterate executed the Deed of Lease to the extent the he understood the document as granting the lessee interest in four plots of land measuring as shown in paragraph 8 above.”
The above paragraphs clearly did not cover the finding of the learned trial Judge that “the plaintiff has testified as PW3 that he was not present when the land was surveyed by J. C. Awah’s surveyor….. This was not controverted.
If the plaintiff/appellant had intended to make use of such fact as contained in the finding of the learned trial Judge, he would have specifically pleaded such a material fact.  In the circumstance, the finding of the learned trial Judge was not supported by the pleadings.
Second, the conclusion of the learned trial Judge at page 108 lines 10 – 15 based on the evidence of payment of annual rents that “the dimensions of the land leased to J. C. Awah by the plaintiff is as set out in Exhibit C measuring in area 5451.771 square yards”, ordinarily, if it were supportable would have enured in favour of the respondent.  But then, in the circumstances of this case, this conclusion is perverse because it is extraneous to the pleadings of the parties.  Truly, and as pointed out by the learned counsel to the respondent, the parties in this case did not join issues on payment of annual rents as a basis for the measurement of the dimension of land leased to J. C. Awah by the plaintiff/appellant.  It is only when parties to an action has answered one another’s pleadings in such a manner that they have arrived at some material point or matter of fact affirmed on one side and denied on the other side, that it is said that they have joined issue on a question.  See e.g. Albert Ebenogwu & 1 Or.   vs.   O. O. Onyemaobim (2008) 3 NWLR (Pt. 1074) 396 at 427.

The 8th Edition of the Black’s Law Dictionary at page 54 defines “joinder of issues” as follows:
“1. The submission of an issue jointly for decision. 2.  The acceptance or adoption of a disputed point as the basis of argument in a controversy, – Also termed joinder in issue, similiter. 3.  The taking up of the opposite side of a case, or of the contrary view of a question.”
In the instant case, the plaintiff/appellant did not make any issue of the payment of annual rents in relation to his case on the dimension of land leased to J. C. Awah.  The reference to paragraphs 5 and 6 of the appellant’s statement of claim by the learned counsel to the respondent is not useful.  Paragraphs 5 and 6 of the appellant’s Statement of Claim read thus:
“5 By a Memorandum of Agreement dated 9th April 1960 the plaintiff leased to the said J. C. Awah four (4) plots of land measuring 100 ft. x 50 ft. each being part of the plaintiff’s large expense of land called “Okpulo  Nwamaghinna”.    The entire area of land leased to J. C. Awah was 220 ft. x 110 ft. (including allowances made) and this was demarcated with “Ukpo” trees alias “Odu” (life sticks) pending when the land shall be surveyed to cover the agreed area of land demised to J. C. Awah.  The plaintiff shall rely on the said Memorandum of Agreement dated 9/4/60 evidencing also the receipt of the sum of 40 (Forty Pounds) paid by the said J. C. Awah.
6. Following the aforesaid Agreement as evidenced by the aforesaid memorandum, the plaintiff, by Deed of Lease dated 5th day of July, 1961 made between the plaintiff of the one part and the said J. C. Awah of the other part registered as No. 30 at page 30 in Volume 360 of the Lands Registry, Enugu (now Umuahia) granted unto the said J. C. Awah, now deceased, Lease of 99 years of plots of land being part of the said “Okpulo Nwamaghinna” land.  The Deed of Lease will be founded upon at the trial.”
It would be seen that nothing in the aforesaid paragraphs of the plaintiff’s/appellant’s Statement of Claim raised any issue about payment of annual rents as a measure of the dimension of land granted by the plaintiff to J. C. Awah.
Also, even when the defendant/respondent in his statement of defence alluded to payment of annual rents, it was essentially a description of the terms of agreement between the assignor (J. C. Awah) and the defendant/respondent in this case.  The relevant paragraphs according to the learned counsel to the respondent are paragraphs 6, 7, 14(c), (d), (e) and 16(b) of the statement of defence.  They read as follows:
“6. In answer to paragraph 5 of the statement of claim, the defendant stated that the Deed of Lease dated 5/7/61 and registered as No. 30 at page 30 in Volume 268 of the Lands Registry, Enugu (now Umuahia) (hereinafter referred to as the “Head Lease”) is now in the defendant’s possession and power.
A Survey Plan No. BAN/126/60 dated 17/6/60 counter-signed by the Acting Director of Survey, Enugu, showing the quantum of land, demised by the plaintiff to J. C. Awah is thereunto attached.  The Head Lease was duly executed by the plaintiff in the presence of a Magistrate.  The said Head Lease and Survey Plan No. BAN/126/60 is hereby pleaded and shall be relied upon at the hearing of this suit.
7. Save as specifically admitted in paragraph 6 hereof, the defendant denied the entire paragraph of the statement of claim and will at the trial of this suit put the plaintiff to the strict proof of the facts therein alleged.
14. In further answer to paragraphs 11, 12, 13, 14 and 15, the defendant states as follows:
(c) Before the defendant purchased the said land from the assignor, the defendant was introduced to the plaintiff for the purpose of performance of traditional rites and payment of future rents.
(d) The plaintiff in the presence of the assignor and other persons stated that the said land contained eight plots including the allowance made by him to the assignor in 1960.
(e) The plaintiff reminded the assignor and the defendant that since end of the civil war, the rent per plot was (and still remains) N12.00 being the rate fixed by the Land Order of the eleven villages in and around Aba Town.  The rent for the eight plots was accordingly increased from N48.00 to N96.00 for eight plots per annum i.e., from N6.00 to N12.00 per plot.
16. The defendant denies paragraphs 16, 17 and 18 of the statement of claim and in further answer to the paragraphs 16, 17 and 18 defendant states as follows:
(a) …………………………………………………………………

(b) The assignor paid annual rents on the land in advance up to and including 31/12/83.”
First, it is observed that paragraphs 14 and 16 of the defendant’s/respondent’s statement of defence were not in reaction to paragraphs 5 and 6 of the plaintiff’s/appellant’s statement of claim.  Paragraphs 14 and 16 of the respondent’s statement of defence were replies to paragraphs 11 – 17 of the statement of claim, where the appellant pleaded illiteracy and mistake and that when he became aware of his mistake in Exhibit “C” he wrote the defendant on 5th February, 1981 to desist from further trespassing.
A contrasting reading of appellant’s paragraphs 5 and 16 of the statement of claim wherein Exhibit “C”, the Deed of Lease of 1961 was pleaded with respondent’s paragraphs 14 and 16 did not suggest that the parties joined issues or jointly submitted for a decision or adjudication that payment of annual rents shall be the determining factor of the dimension of land leased by the plaintiff to J. C. Awah by Exhibit “C”, the Deed of Lease of 1961.
The learned trial Judge was therefore in error to have come to a conclusion based on the evidence of payment of annual rents that the dimension of land leased to J. C. Awah is 5451.770 square yards as shown in Exhibit “C”.
Third, at page 108, lines 10 – 15, the learned trial Judge found that:
“the dimensions of the land leased to J. C. by the plaintiff is as set out in Exhibit “C” measuring area 5451.70 square yards ……………………………………..”
In contrast to page 104, lines 10 – 15, the learned trial Judge held that:
“a conclusion that may be drawn having regard to the aforementioned uncontroverted evidence is that the plaintiff in fact sold four plots and being an illiterate person did not appreciate that more land had been surveyed in spite of the jurat in Exhibit C.”
On the above, learned counsel to both the appellant and the respondent agreed that these findings by the learned trial Judge are contradictory and inconsistent to each other.
It would be seen from the above statements that in one breadth the conclusion of the learned trial Judge supports the case of the respondent while in another breadth, it supports the case of the appellant.
In this circumstance, the final decision of the learned trial Judge in dismissing the plaintiff’s case cannot stand.  This is because, the decision cannot be said to flow from the inconsistent and contradictory findings of facts by the learned trial Judge.  Indeed the above findings as well as the judgment of the learned trial Judge based on them are perverse.
A perverse finding is one which ignores the facts or evidence before the court and when considered as a whole amounts to a miscarriage of justice.  See Odiba  vs.  Azege (1998) 9 NWLR (Pt. 566) 370 and Edoho  vs.  State (2004) 5 NWLR (Pt. 865) 17.
A finding is perverse if it is not borne out of the evidence before the court.  A perverse finding is a finding which is not only against the weight of evidence but is altogether against the evidence itself.  It is a finding which no reasonable tribunal should have arrived at in the light of the evidence before it.  Per Niki Tobi, JSC in Iliya Akwai Lagga  vs.  Audu Yusuf Sarhuna (2008) 16 NWLR (Pt. 1114) 427 at 474.
In the same case of Lagga  vs.  Sarhuna (supra) at page 462, a judgment of a trial court is said to be perverse if it does not flow from the evidence adduced by the parties.  With respect, I would add that a judgment of a trial court would also earn the name of a perverse judgment if the conclusion in the judgment as in the instant case does not flow from the findings of the court. What then is to be done?

The law is clear from the authorities of Bassil  vs.  Fajebe (2001) 11 NWLR (Pt. 725) 592 at 608 – 609; Imah  vs.  Okogbe (1993) 9 NWLR (Pt. 316) 159; Onwuka  vs.  Ediala (1989) 1 NWLR (Pt. 96) 182; Akintola  vs.  Balogun (2000) 1 NWLR (Pt. 642) 532 and several others, that an appellate court does not ordinarily interfere with the findings of fact made by a trial court except in the following circumstances:
(a) Where the trial court has not made proper use of the opportunity of seeing and hearing of the witnesses at the trial; or
(b) Where the trial court has drawn erroneous conclusions from accepted instance or has taken erroneous view of the evidence before it; or
(c) Where findings of fact are perverse in the sense that they do not flow from the evidence accepted by it.
See also, Okpiri  vs.  Jonah (1961) 1 SCNLR 174; Maja  vs.  Stocco (1968) 1 All NLR 141 at 149; Woluchem  vs.  Gudi (1981) 5SC 291 at 295 – 296 and Ezeanya  vs.  Okeke (1995) 4 NWLR (Pt. 338) 142 at 169.  Because the judgment of the lower court in this case is perverse, the proper order is a retrial or at best and in the circumstances of the case a non-suit.
On 8/10/10, this Honourable Court sent further hearing notices to the parties through their counsel to address the court on the propriety of an order of non-suit of the plaintiff’s/appellant’s case in view of the agreement by both counsel in this appeal that the findings of the learned trial Judge on questions Nos. 2 and 3 as earlier posed by this Honourable Court are indeed contradictory and inconsistent.
On 18/10/10, Mr. K. C. Nwufo of counsel to the appellant addressed the court on the propriety of non-suit in the instant appeal on the basis that the findings of the lower court in favour of the plaintiff/appellant show that the case of the appellant has not failed in toto and that it is therefore proper for this court to make an order of non-suit.
Chief Ikeotuonye for the respondent on the other hand submitted that an order of non-suit is not appropriate because it does not flow from the contradictory and inconsistent findings in the judgment of the trial court as agreed by counsel to the parties in answer to questions Nos. 2 and 3 that were earlier posed by the court.  And that the appeal should simply be dismissed.
In the instant case, beyond the oral evidence offered by the parties, a decision can be reached by hanging on Exhibit “C”.
In my opinion, it is the contradiction between the conflict of Exhibit “C” and the Survey Plan attached to the said Exhibit “C” which indeed explains the submission of the learned counsel for the appellant that the case of the plaintiff did not fail in toto.
It would be recalled that Exhibit “C” is the Deed of Lease dated 5th day of July, 1961 between the appellant and J. C. Awah, in that document, the extent of land was stated to be “4 plots of land known as and called “Okpulo Nwamaghinna” measuring 100 x 50 ft. plus allowances 220 x 100 ft”.
The above position of Exhibit “C” tallies with the finding of the learned trial Judge at page 104 that:
“a conclusion that may be drawn having regard to the aforementioned uncontroverted evidence is that the plaintiff in fact sold four plots and being an illiterate person did not appreciate that more land had been surveyed in spite of the jurat in Exhibit “C” ………………………………………………….”
The Survey Plan attached to the same Exhibit “C” shows a measurement of 5451.770 square yards which is more than 4 plots.
Now, because of this technical inconsistency in the case of the plaintiff/appellant, we are able to say that the plaintiff/appellant clearly proved the sale of 4 plots of land to J. C. Awah but failed in his attempt to prove that the measurement of land sold to J. C. Awah was not 8 plots.
The choice here is between retrial of the claim of the plaintiff/appellant or non-suiting him.  However, I do not agree with the suggestion of the learned counsel to the respondent that the appellant’s claim be dismissed.  This is because, in any case from the record of proceedings the defendant/respondent would not be entitled to the judgment of the court.  Indeed, in the instant case, a non-suit is appropriate because there is no satisfactory evidence enabling the court to give judgment to either of the parties and wronging neither.  See African Continental Bank  vs.  Yesufu (1980) 1 – 2 SC 49 and Olagbemiro  vs.  Ajagungbade (1990) 3 NWLR 37.
An order of non-suit is usually made in the interest of justice, and not for both parties.  Ogbechie  vs.  Onochie (1988) 1 NSCC 211 at 230.  For if as in this case, the dismissal of the claim might work injustice to the plaintiff/appellant and no injustice or hardship need result to the defendant/respondent from non-suiting the plaintiff, an order of non-suit would produce juster result.  See Awosanya  vs.  Alh. Algata & 1 Anor. (1965) 1 All NLR 288.
Recently, the Court of Appeal revisited the principles of non-suit in the case of Joel Anode  vs.  Samuel Mmeka (2008) 10 NWLR (Pt. 1094) 1 at 20.  Saulawa, JCA, who read the lead judgment of the court held that:
“It is trite principle of law that an order of non-suit decided nothing in respect of the matter in dispute between the parties.  It merely gets rid of the pending action; leaving the claimant at liberty to start de novo, either in the same or subsequent suit.  See Okpala  vs.  Ibeme (1989) 2 NWLR (Pt. 102) 208 at 213.  An order of non-suit is normally made where there is no satisfactory evidence to warrant the court to give judgment to either party.  See Aigbe  vs.  Edokpolo (1977) 2 SC 1 …..”
And that:
“In the instant, it is very clear that in view of the pleadings and evidence of the respondent and vis-a-vis those of the appellant at the trial, it would have been injudicious for the learned trial Judge to have dismissed the suit.  The justice of the matter demanded that the respondent be accorded another chance to file a fresh suit if he so wished.  Thus, the learned trial Judge was therefore right in making an order of non-suit rather than that of dismissal …”
In relation to this case, the provision of Order 40 of the Abia State High Court (Civil Procedure) Rules, 2009 reads thus:
“Where satisfactory evidence is not given entitling the claimant or defendant to the judgment of the court, the judge suo motu or on application may non-suit the claimant but the parties’ legal practitioners shall have the right to make submissions about the propriety or otherwise of making such order.”
In view of the above, this appeal is allowed.  The judgment of Otisi, J., dated 19/5/02 wherein the plaintiff’s/appellant’s case was dismissed is set aside.
In the interest of justice the case of the plaintiff/appellant is hereby non-suited.  There shall be no order as to costs.
And that shall be the judgment of the court.