EMMANUEL CHIJOKE ORLU v. CHIEF A. GOGO-ABITE
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of March, 2002
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
MICHAEL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
EMMANUEL CHIJOKE ORLU Appellant(s)
CHIEF A. GOGO-ABITE Respondent(s)
MICHAEL EYARUOMA AKPIROROH, J.C.A. (Delivering the Leading judgment): This is an appeal against the decision of Nngbukwu J. (as he then was) of the High Court of Rivers State in the Port Harcourt Judicial Division delivered on 10th April, 1991 in Suit No. PHC/171/86 dismissing the Appellant’s claim.
The claim of the Appellant in paragraph 13 in his Statement of Claim is as follows:
(a) “A declaration that the Plaintiff is entitled to the statutory right of occupancy over and in respect if the property known as No. 21 Nsukka Street, Mile 1, Diobu, Port Harcourt.
(b) A declaration that No. 21 Nsukka Street, Mile 1, Diobu, was never an abandoned property within the meaning of the law and that the; purported sale or assignment of the said property to the Defendant by the Rivers State Government or its agent is null and void.
(c) A perpetual Injunction restraining the Defendant by himself or his agents or servants from interfering with the Plaintiff is use and enjoyment of the said property.”
The claim which was tried on the Pleadings supported by evidence relates to No. 21 Nsukka Street, Mile 1 Diobu, and Port Harcourt.
From the pleadings and the evidence led in support, the Appellant’s case put briefly is that the property in dispute was inherited by him as the first son of his father according to Ikwerre native law and custom. It was originally leased to one James Orlu by the Eastern Nigeria Government for seven years and when his lease expired, the Government of Eastern Nigeria gave him a new building lease and transferred it to him. The Ministry of Lands wrote Exhibit L to the tenants. On receipt of the Letter, he started to collect rents from the tenants. He renovated the house and also paid property rates as shown in Exhibit’s M, M1, M2, N, N1 and N2.
The Respondent’s case put in a nutshell is that the area known as Mile 1, Diobu, Port Harcourt was originally called Rumuwoji Village. Sometimes in 1956, the then Governor of Eastern Nigeria cleared the village for the purpose of development. After laying out the area, the Government allocated plots to the original owners of the land in the process, James Orlu, the Plaintiff’s; father was allocated plot 15, Block 220 , Wobo Layout, otherwise known as No. 21 Nsukka Street, Mile 1, Diobu, for seven years. As he could not develop it, he entered into an agreement with one Urum Kalu to build a house on the land. By this agreement, Urun Kalu was to recover his money by way of rents collected from tenants in the house.
Apart from the building agreement, Exhibit D, James Orlu also donated an Irrevocable Power of Attorney, Exhibit F to Urum Kalu Ode. He, James Orlu later applied for Government consent in October, 1961 to assign the property to Urum Kalu Ode. The Appellant signed Exhibit F as a witness. The application was later approved after the consent. James Orlu assigned the property to Urum Kalu Ode.
When the lease for seven years expired, the then Government of Eastern Nigeria renewed the Lease for Urum Kalu ode for another term of six years with effect from January, 1966.
He later assigned the unexpired term to the Respondent.
At the end of the trial, the learned trial Judge in a reserved judgment dismissed the Appellant’s claim.
Dissatisfied, the Appellant has appealed to this Court and formulated six issues for determination:
1. “Did the Appellant lead enough traditional evidence of his title, and did he exercise acts of ownership and possession over the subject matter in dispute as against the Respondent?
2. Whether the admitting of the irrevocable Power of Attorney (Exhibit F) in evidence before the Court was proper in law
3. Whether the irrevocable power of Attorney (Exhibit F) confers any rightful title to the Respondent as to the ownership of the property in dispute?
4. Whether the maxim “NEMO DAT QUOD NON – HABET” applies in this case as to the ownership of the property – No. 21 Nsukka Street, Mile 1 Diobu, Port Harcourt, particularly on Mr. KALU UDE?
5. Whether the Deed of Assignment – (Exhibit 0) is void and invalid in law.
6. What is the validity of the building lease (Exhibit B) which confers interest on the Appellant?”
The Respondent filed a brief of argument and also raised two issues for determination:
(i) Whether or not the learned trial Judge was right in dismissing the plaintiff’s claim, having regard to the nature of the case and the pleadings and evidence.
(ii) Whether or not the learned trial Judge was right in admitting in evidence, the irrevocable power or attorney donated by James Orlu to Urum Kalu ode (Exhibit F).
On issue one, learned counsel for the Appellant submitted that from the pleadings and evidence before the Court, title to the property was proved by the Appellant through traditional evidence, acts of possession and Exhibit of A. Reliance was placed on the cases of ATANDA v. AJANI (1989) 3 NWLR (PT. 111) 511 at 535; BELLO V EWEKA (1981) S.C. 101 at 102; MOTUNWASE v SORUNGBE (1988) 5 NWLR (Pt 92) 90 at 101; RUMSEIN & 2 ORS v. ODUTOLA (1996) 3 KLR (Pt. 39) 515 at 521.
In reply, learned counsel for the Respondent submitted that on the facts before the Court, the learned trial Judge was correct in dismissing the Appellants case and that all the legal authorities cited by him are inapplicable to the facts of this case. It was also his submission that the Appellant who predicated his claim on inheritance failed to plead and prove Ikwerre Native Law and custom governing inheritance in Ikwerre land and relied on the cases of KWAKU BONSI V NANA ANTWI AJENA II & ORS 6 WACA 241; QUEEN V. CHIEF OSOGWLA (1962) NWLR 136 and ADEYEMI v. ALHAJI SHITU BAMIDELE (1998) 1 ALL NLR 31.
The traditional evidence given by the Appellant was not corroborated by his witness P.W.2. Suffice it to say the traditional evidence given by the Appellant is not cogent and compelling to entitle him to a declaration of title to the land in dispute. In paragraph 5 of the Statement of Claim, the Appellant pleaded as follows:
“Woji had several sons and daughters who became known and called Rumuoji. Portions of the land were allocated to his sons who farmed and lived on the land. The portion allotted to the Plaintiff’s own lineage was in accordance with Ikwerre Native Law and Custom successfully inherited by the following: Nti Woji, Orlu Nti and James Orlu – the Plaintiff’s father.”
The Ikwerre Native Law and custom on which he based his claim was not pleaded. It is a fundamental principle of law that where a party intends to set up and rely upon native law and custom, the custom alleged must be specifically pleaded.
The Appellant failed woefully to plead and, prove Ikwerre Native Law and custom which governs inheritance upon which he predicated his claim. This issue is resolved in favour of the Respondent against the Appellant.
Learned counsel for the Appellant argued issues 2 and 3 together and submitted forcefully that the learned trial Judge was wrong in admitting Exhibit F, the irrevocable Power of Attorney inspite of his objection to its admissibility on the ground that it did not comply with section 3 and 4 of the illiterate Protection Law and the Land instrument Registration Law because it was executed between the parties without any sworn interpreter and attestation before a Magistrate or a Justice of the peace. He finally submitted that since Exhibit F is inadmissible, any evidence or reliance placed on it is void and it can be set aside by this court. Reliance was placed on Plethora of cases including OSENI & ORS V DAWODU & ORS (1994) 7 KINDS REPORT 51 at 61.
In reply, learned counsel for the Respondent submitted that where a written contract like Exhibit F is sought to be impeached as being uneforceable or inadmissible in evidence, it is obligatory to plead the necessary facts that render the document inadmissible and relied on the case of ALHAJI SALAMI V SAVANNAH BANK (NIG) LTD (1990) 2 NWLR (PT 120) 100. I must say straight away that I am unable to accede to the submission of learned counsel that before Exhibit F can be tendered and admissible, the facts that render it inadmissible must be pleaded first is totally misconceived because admissibility of a document is not raised by way of pleading. See OSENI V DAWODU (supra) in which Iguh JSC held at 404:
“I accept the submission of learned counsel for the Appellant that the Court of Appeal was wrong in law to rule that objection to the admissibility of a document must to succeed, be pleaded…”
Exhibit “F” was therefore rightly admitted in evidence by the learned trial Judge.
On the contention of learned counsel for the Appellant that Exhibit F offends Section 3 and 4 of the illiterate Protective Law is also misconceived. In NTIASHAGORO V. AMODU & ORS (1959) WNLR at page 270, it was held that an “ILLITERATE PERSON” was held to be a person who is unable to read with understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf. In SALAMI V. SAVANNAH BANK OF (NIG) LTD 106 at 122, it was held that while the writer or preparer of a document signed by an illiterate cannot take the advantage under it unless the provisions of the Illiterate Protection Law are Strictly complied with, but where the document creates legal right between the Illiterate and the person other than the writer or the Preparer of the document, not only is the document admissible but all pieces of evidence may be adduced or introduced to prove what happened at the time the document was prepared and signed. The Respondent is not the maker of the document but the Appellant’s father James Orlu and as such it is admissible in evidence. See also the case of EZERA v NDUKWE (1981) ALL NLR 564.
Learned Counsel for the Appellant argued Issues 4, 5 & 6 together. He submitted that the learned trial Judge erred in law in admitting Exhibit 0 – Deed of Assignment in evidence when the evidence ought to be expunged from the records because the Appellant’s father could not have executed Exhibit O in 1962 when the unrebutted evidence was that James Orlu died in 1961. Counsel further argued that the learned trial Judge did not make use of the uncontradicted evidence that James Orlu, the Appellant’s father was an illiterate. I find no substance or merits in these submissions because Exhibits A and O were rightly admitted in evidence by the learned trial Judge. Besides, there is nothing to show that James Orlu died in 1961.
In the end, there is no merit in this appeal and it is hereby dismissed. The Respondent is entitled to costs assessed at N5, 000.00 against the Appellant.
JAMES OGENYI OGBEBE, J.C.A.: I read before now the lead judgment delivered of my learned brother Akpiroroh, J.C.A. just and I agree with his reasoning and conclusion. The appellant by his pleading and evidence was unable to prove his which was rightly dismissed by the lower court. The appeal lacks merit and I hereby dismiss it with costs of N5, 000.00 in favour of the respondent.
ABOYI JOHN IKONGBEH, J. C. A.: I have read in draft the lead judgment of my learned brother Akpiroroh, J.C.A., just delivered and I agree entirely with the reasoning and the conclusion reached by him.
I abide by the order made including the orders as to costs
- I. OGUA, Esq.For Appellant
- IBIM Esq.,For Respondent