CHIEF GIBSON PENCYL ORUNENGIMO & ANOR. v. MADAM MARGARET EGEBE & ORS.(2002)

CHIEF GIBSON PENCYL ORUNENGIMO & ANOR. v. MADAM MARGARET EGEBE & ORS.

2002)LCN/1200(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of May, 2002

CA/PH/143/92

 

JUSTICES

JAMES OGENYI OGEBE   Justice of The Court of Appeal of Nigeria

SYLVANUS ADIEWERE NSOFOR   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria

Between

 

  1. CHIEF GIBSON PENCYL ORUNENGIMO
    2. MR. JEREMIAH PENCYL NYENGE Appellant(s)

AND

  1. MADAM MARGARET EGEBE
    2. FAUSTINA EGEBE
    3. MR. KITCHENER IKOLI EGEBE Respondent(s)

OGEBE, J.C.A. (Delivering the Leading Judgment): The appellants sued the respondents in the High Court Degema, for a declaration of title to the disputed land. The appellants filed a statement of claim and the respondents concluded their pleadings with an amended statement of defence.
The appellants’ case was that the land in dispute, was owned by Ikoni family to which they belonged. The land was originally owned by the founder of Okoroma village and it was inherited by their ancestors, through Arose up to Pencyl. On the death of Pencyl, they became the present owners of the land. It was also their case that Arose had a half brother, who was of the same mother but different father. He was not a member of Ikoni family. The name of the brother is Kanti Inogha. Kanti had a friend called Donald Egebe, who was the father of the respondents. Through the plea of Kanti, Arose permitted Egebe to settle on the portion of the disputed land on temporary basis only. Shell Petroleum Development Company (Nigeria) Ltd, came into the disputed land to carry out oil exploration activities and the respondents asserted ownership of the land before the company. The appellants then instituted the action.
The respondents’ case in the lower court was that their father, Donald Egebe wanted to buy a piece of land. One George Oruh, introduced him to Kanti Inogha, who sold him the disputed piece of land. It was their case that Arose, the appellants’ grandmother was a member of Egbule family of Kanti and took part in selling the disputed land. The matter was hotly contested before the lower court.
Six witnesses testified for the appellants, while four testified for the respondents at the court below. After extensive review of the facts presented by both sides the learned trial Judge dismissed the appellants’ claim.
Aggrieved by that decision, the appellants appealed to this court and the learned Counsel for them filed a brief of argument which was later amended with the following issues for determination:
(a) Whether it was right for the lower court to make holdings or findings in favour of the defendants on matters Which the defendants did not raise as part of their defence?
(b) Whether it is correct for the lower court to give Judgment to the defendants based upon findings, which
are the exact opposite of the pleadings and evidence of the defendants, and upon matters which the defendants never raised as part of their defence in both their pleadings and evidence.
(c) Whether the plaintiffs did prove their claim of ownership to the disputed land by credible evidence?
The respondents also filed a brief of argument, which was later amended and formulated three issues for determination as follows:
(1) Whether on the pleadings, evidence and circumstances of this case, the lower court was justified in its findings and conclusion that the appellants are members of Kanti family and that the appellants having represented themselves as such are not estopped from asserting otherwise.
(2) Whether on the pleadings, evidence and circumstances of this case, the lower court was justified in upholding the respondents’ claim that their ancestor, Donald Egebe bought the land in dispute from the appellants’ ancestor.
(3) Whether on the pleadings, evidence and circumstances of this case, the lower court was justified in its conclusion that the appellants have failed to discharge the burden of proof cast upon them by the law, that is, title to the land verged Red in exhibit 1″
The appellants filed a reply-brief.
The learned Counsel for the appellants highlighted some of the findings of the trial court and submitted that these findings were not supported by the pleadings and the trial court was wrong in using such findings in favour of the respondents on matters which the respondents did not raise as part of their defence. The main complaint was the finding of the trial court, that Kanti had acted on behalf of Ikoni family and they have endorsed his actions and they cannot now come to say that he is not a member of their family or their predecessor in title. The learned Counsel submitted that it is the duty of the trial court to determine or resolve issues of facts as shown in the pleadings. He referred to the case of Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) 326.
On the first issue, the appellants’ counsel finally submitted that the trial Judge formulated matters for the respondents’ defence, not contained in their pleadings and which he used in giving judgment in their favour and as a result denied the appellants justice.
In reply to this the respondents submitted that the trial court was right in holding that the appellants were members of the Kanti family, which sold the land to the respondents’ father in view of the admissions by PW2 and PW3 that Arose and Kanti were of the same family. He said that the respondents gave consistent evidence in support of their averments that the appellants belonged to Kanti family and the first appellant represented Kanti family in respect of compensation money, which was deposited with Chief Olala Bighole Ebahbofa, as evidenced in receipt Exhibit D5 and solicitor’s letter Exhibit D6.
It is trite law that findings of fact are the pre-eminent duty of the trial court and where a trial court has dispassionately assessed the evidence and made findings of fact, an appeal court should not interfere unless such findings are shown to be perverse. See the case of Donald Dibiamaka & Ors. v. Prince O. Osakwe & Ors. (1985)5 SCNJ 30; (1989) 3 NWLR (Pt. 07) 101.
The trial court summarized the issues before it at page 171 of the record as follows:
“From the pleadings and the evidence adduced by both sides, the issues in dispute have been greatly narrowed to the fact, whether or not the plaintiffs’ ancestors sold the land in dispute to the defendants’ predecessor late Donald Egebe.
Another important matter that arises from that is, whether the plaintiffs are from Ikoni family, as they said or from Kanti family as the defendants claimed. This is a very important issue because the defendants based their defence on the fact that KANTI is the plaintiffs’ ancestors and that it was this Kanti, that sold the land in dispute to Donald Egebe and that the plaintiffs are members of Kanti and not Ikoni family.”
On the second issue, the court found as a fact that Kanti, and Arose and her descendants were regarded by members of the public as the same family. The court stated thus:
“From the following, it appears to me that the members of the public, regard Kanti and Arose and her descendants as members of the same family, and while some call them Ikoni family, and others call them Kanti family.
Kanti had acted on behalf of Ikoni family and they have endorsed all his actions and they cannot come now to say that he is not a member of their family or their predecessor-in-title.”
On the first issue, the court held as follows at pages 189-190 of the record:
In the instant case, the plaintiffs may be speaking honestly but erroneously, as to what took place during the said transaction. I believe the defendants that sometime in 1930, that George Oruh asked Egebe, whether he would like to buy land and that when he said that he would like to buy a land, that George Oruh took him to Kanti, who later brought in his sister, Arose, and a man – Akarala, and in presence of DW2 and others, the plaintiffs’ family sold to Egebe, the land in dispute- Egebe Kiri after which Egebe moved in and occupied the land and further that, in 1949, Kanti in presence of and with the consent of Arose and Akarala, made out Exhibit D2 to record what happened in 1930 and which was written by PW 7.”
It is not disputed that the appellants’ family originally owned the land. The respondents case was that the appellants belonged to Kanti family, which sold the land to their ancestors in the year 1930, and was evidenced in writing by Exhibit D5 in 1949. The appellants insisted that they belonged to Ikoni family as distinct from Kanti family. It was the duty of the appellants to prove this distinctiveness which appears they were unable to prove. For example, their witness PW2, Okuro Amenini testified under cross-examination, that Kanti and the plaintiffs are of the same family. PW3, Orerite Ikagba, also testified that Kanti and plaintiffs are of the same family. PW 1, Chief Gibson Pencyl Orunengimo, who is the first appellant in this court, admitted that when Shell Petroleum Development Company (Nigeria) Ltd, paid compensation in respect of the disputed land, three families were disputing the land and deposited the money with Chiefs. He mentioned the families as Ibokoko, Egebe and his own, but in Exhibit D5, the receipt of the deposit, a different picture emerges. That receipt is quoted at page 174 of the record and is reproduced hereunder for clarity:
Exhibit D5 states:-
Date: 19th April, 1975,
RECEIPT TO WHOM IT MAY CONCERN
I, Chief Olali Bigold Gbalibofa, Chairman of Ologoama, Okoroma community, received the sum of Fifteen thousand four hundred and sixty six Naira (N15,466) only, from the following families, Kanti, Ibokolo and Egebe, for the safe keeping for the rightful owner.
This amount will be given out to the rightful owner, after the three families have settled their land dispute.
This money have been handed over to me by Chief Gibson Pencyl, in respect of Kanti family, Chief Samuel Owifa, in respect of Ibokolo family and Mr. Kitchina Egebe, in respect of Egebe family.
Signature  (R.T.I.) OLALI  B. GBAZIBOFA
DATE 19 APRIL 1975
WITNESS
I.SGD.
2.SGD.
3.SGD.”
As can be seen above, the first appellant put in the money in respect of Kanti family and not Ikoni family. This piece of evidence, supports the respondents’ case that the appellants belonged to Kanti family. In any event, Arose through whom the appellants claimed the disputed land, gave his consent to the sale of the disputed land to the respondents’ father as shown in Exhibit D2. It follows therefore, that the appellants did not prove that they were any longer entitled to the declaration of title sought, because the property had been sold by their ancestors to the respondents’ father.
On the second issue, the appellants’ counsel complained that the findings of the trial court were the exact opposite of pleadings and evidence, of the respondents and the trial court was wrong in giving judgment in their favour.
This issue is more or less, a repetition of the arguments that have been advanced in respect of the first issue and my view is the same. The appellants seek to make this case more complicated than it is. The simple question before the trial court was whether or not, the disputed property had been sold to the respondents’ father by the appellants’ family and the court found that the property had been sold by the appellants’ family.
The third issue is whether or not, the appellants proved their claim of ownership by credible evidence.
It is not disputed that they were the original owners of the property. Even by their own showing that their ancestors gave it to the respondents’ father for temporary occupation, but the respondents were able to show that it was more than that, that it was an outright sale to him and the court believed this evidence. I see no cause whatsoever, to interfere with this clear finding of fact of the trial court, which was based on the evidence before it. It is clear that the first appellant ruined the appellants’ claim as evidenced by Exhibit D5 in which, he deposited the compensation money on behalf of Kanti family. With this evidence, there was no way that the judgment would have gone in their favour.
For all I have said in this judgment, I see no merit in this appeal and I hereby, dismiss it and affirm the judgment of the trial court.
The appellants shall pay costs of N5,000.00 to the respondents.

NSOFOR, J.C.A.: I have had the privilege of having read in draft, the judgment of my Lord, Ogebe, JCA, just delivered. I am in complete agreement with the conclusion.
I also dismiss the appeal, and affirm the decision of the trial court.

IKONGBEH, J. C. A.: I agree.

 

Appearances

S.M. NengiaFor Appellant

 

AND

  1. O. KamaluFor Respondent

 

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