IGHOTEMU & ORS v. MOGUN & ORS
(2020)LCN/14450(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Thursday, July 02, 2020
CA/AS/483/2013
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
- FAMOUS IGHOTEMU 2. JOHN EKEDAYEN 3. MR. BLANKSON ASHIWAWE EKURUEMU (For Themselves And On Behalf Of The Osemuroh Family Of Effurun Parties Substituted By Order Of Court Dated 17/10/04) APPELANT(S)
And
- MRS. MARY MOGUN 2. MADAM ANTHONIA KODESOH 3. MR. MUNIS KODESOH (For Themselves And On Behalf Of The Children Of Late Chief T. J. Kodesoh) 4. AFRICAN PETROLEUM LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY SUCCEEDS OR LOSSES BASED ON THE STRENGHT OF HIS CASE IN CIVIL MATTERS
This is a civil matter; and the trite principle of law is that a party succeeds or loses, based on the strength of his case as made out. See Mr. S. B. Olaleye V. Trustee of Ecwa (2010) LPELR – 4743 CA. See also Okulaja Vs. Odubanjo (2017) LPELR 41949 CA.
It is also a settled principle of law that pleadings by a party that are at variance with the evidence he led at the trial are deemed to have been abandoned and the evidence led, in consequence go to no issue and should be disregarded. See Adebusuyi Vs. INEC PT. 545 ALL FWLR 20 @ 237.The Averments can rightly be struck out and the evidence led without any subtractum to rest on, is disregarded as it is a legal orphan. As a corollary, the legally abandoned pleadings and disregarded/discountenanced evidence, as it were, lead to the only inevitable conclusion that the case has not been proved; this will entail the consequential result of a failure and dismissal of the claim or suit, as the case may be. PER DANJUMA, J.C.A.
WHETHER OR NOT A PARTY WHO HAS BENEFITED FROM A TRANSACTION CANNOT TURN AROUND TO CHALLENGE THE LEGALITY OF THE TRANSACTION
See Nwankwo V. Nzeribe (2003) LPELR 5452 (CA) where the Court on the position of the law as regards a party who has benefited from a transaction and turns around to challenge the legality of the transaction.
I am of the view that the Appellants had neither proved their claim nor discharged the burden that had shifted to them pursuant to Section 136 of the Evidence Act 2011. See generally the cases of Nduul Vs. Wayo & Ors 2018, LPELR 45151 Akinbade & Anor Vs. Babatunde & Ors (2017) LPELR -43463 (SC). John & Ors V. Amaechi & Ors 2016 LPELR 40982 (CA); Jaji & Ors Vs. Olowora & Anor (2015) LPELR 25575 (CA); Okulaja & Ors V. Odubanjo (2017) LPELR 41949 CA Mr. S.B. Olaleye V. Trustees of ECWA (2010) LPELR 4743 CA; In Ohochukwu AG. Of Rivers State & Ors (2012) LPELR 7849 (SC) the Supreme Court held thus “It is not enough as submitted by the Appellant on his reply brief that the installmental payment was pleaded on their further amended statement of Defence. The law is trite that pleadings not substantiated by evidence go to no issue”. Per Ogunbiyi; JCA Pages 27-28 paragraph E-A. See also Afolabi & Ors Vs. Western Steel Works Ltd LPELR – 12158. PER DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment): The Appeal herein is against the decision of the Delta State, High Court of Justice in Suit No. W/260/86/M35 which was delivered on the 24th day of July, 2013 dismissing the plaintiff’s case in its entirety.
The brief facts of the case leading to the suit at the trial Court is that the plaintiffs had sued the 1st and 3rd Defendants for the alleged fraudulent acquisition of their land in dispute and alienation of same to the 4th – 6th Respondents.
The learned trial judge thereat, G. O. Akperi J. had in his considered judgment stated in part thus;
“Having considered the entire case and made my findings from the evidence on record and the law, I hold that the plaintiffs have not proved that they are still holding on to title to the Arama (Agharamu) portion of the land over which they have divested their interest in favour of the father of the 1st – 3rd Defendants. They are consequently not entitled to statutory right of occupancy over the portion contained in the parcel of A and B already given to the Defendants’ father. The sale or conveyance made
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to the father of the 1st – 3rd defendants was valid in the circumstances under the Urhobo Uvwie Native Law and Custom because at least one principal member joined in the conveyance”.
See Pp. 280-281 of the record of Appeal.
It is imperative to state that the Appellants now, as plaintiffs had by a writ of summons dated 14-2-86 claimed by their 5th Amended statement of claim (see pages 110 of the record) as follows:
a) N5,000,000.00(Five Million Naira) only as damages against the 4th defendant.
b) That 1st – 3rd defendants do account for all monies paid by the 4th defendant and that the 4th defendant be restrained from further paying any sums of money to 1st to 3rd defendants in respect of this land.
c) A declaration that prior to the operation of the Land Use Decree in 1978 the Plaintiffs are the owners in possession of the piece or parcel of land called Ararna (Agharamu) Land (Bush) situate and lying at Effurun in Uvwie Clan within the jurisdiction of this Honourable Court and are entitled to the Statutory Right of Occupancy of the said land.
d) A declaration that by Urhobo (Uvwie) Custom the
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1st to 3rd Defendants’ predecessor had no right nor power to sell, lease or pledge any part or portion of the said land without the consent and approval of the four principal branches of Osernoroh Family,
e) A Declaration that all the sales, lease or pledge that have been by the 1st to 3rd Defendants to any person or group of persons are null and void.
f) An order of perpetual injunction restraining all the Defendants, their agents, servants and purported tenants or lessees, from committing any further trespass or any other act inconsistent with the right, title or estate of the Plaintiffs.
g) Perpetual injunction restraining the Defendants by themselves, their servants/lessees from going into or remaining on the said land from committing any further act of trespass or any other act inconsistent with the right of the title or estate or interest of the Plaintiffs.
The plaintiffs, being dissatisfied with the Judgment, have appealed upon a Nine-ground of Appeal dated and filed on 11th October, 2013, see page 282-290 of the record of Appeal.
Appellants filed their Appellants’ Brief of Argument dated 14/1/14 while the 1st – 3rd
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Respondents filed their Brief of Argument dated 12th April, 2016 on same date.
The Briefs which were adopted at the hearing of this appeal on the 18th day of March 2020 had the Appellants raising a prolific number of 9 (nine) Issues for the determination of this appeal; whilst the Respondents articulated 2 (two) Issues for the purpose.
The Appellants’ Issues are as follows:
1. Whether the trial Court erred both in evaluation of evidence and in law when it held thus: “The declaration that the Plaintiffs are entitled to the statutory right of occupancy can only succeed if the Plaintiff show that Osemoroh family did not convey any interest in the family land to J. T. Kodesoh or that J. T. Kodesoh took more than was given to him. The Plaintiffs will be required to demonstrate this through evidence and the record tendered.” – page 10 of the judgment, see page 274 paragraph 3 of the record of appeal.
2. Whether the trial Court was not in grievous error when it held thus: “Also the identity of the land in dispute in an action of title to a statutory Right of Occupancy must be clearly ascertained. In this case the Plaintiff witness PW1 said
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that the land in dispute is 9.687 Acres, the size of the land which he said Osemoroh family gave to J. T. Kodesoh is 19.24 – error (1,191.24) Square Metres. PW4 on the other hand relied on exhibit H which gave the dimension or size of the land in dispute in hectres, i.e, 3.922 hectres. The Plaintiffs have throughout their evidence given the figures of the dimension in square metres & acres. This makes the exact sizes of the land in dispute not certain. It is not the duty of the Court to convert from square metres to hectres”- page 11 of the judgment, but page 275 paragraph 3 and 5 of the Record of Appeal.
3. Whether the trial Court did not err gravely in law and in the appreciation of facts and evidence led when it held that the Plaintiffs failed to prove the issue of fraud/forgery beyond reasonable doubt to warrant the reliefs sought.
4. Whether the trial Court did not err in law and in appreciation and/or evaluation of evidence when it stated in its judgment page 3 now page 267, line 4 of the record of appeal that PW1 said that Eborevbori (Oborevbori) begat E. Ibeke whereas throughout the length and breath of PW1 evidence he never said that.
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- Whether the trial Court was right in law having held that it is the head of family and principal members (underlining mine for emphasis) that can convey family land eventually decided that each of the deeds in question, which was purportedly executed by the head of family and a member each – including the ones signed by a questionable member of the Osemoroh family were properly executed.
6. Whether the trial Court did not err in law and in appraisal of evidence when it glossed over and/or did not take the evidence of DW3 serious by failing to declare as null and void the acquisition of land in 1987 from J. T. Kodesoh and the sub-letting of part of the said land to one Okorugbo Motors. And did the Court not err in not declaring a sublease executed on 30th of December, 1993 null and void.
7. Whether the trial Court did not err in both law and in facts and/or evaluation of the evidence when it confused the evidence led by DW3 concerning exhibit “F” to the effect that the 4th Defendant/Respondent acquired a lease of 99 years from J. T. Kodesoh, thereby confusing same to mean that the 4th Defendant/Respondent acquired the leasehold from Osemoroh
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family – Plaintiffs/Appellants family. In other words, was the Court right in holding that it was Osemoroh family that leased the 3.186 acres to the 4th Defendant/Respondent and consequently refused to declare the 4th Defendant/Respondent a trespasser.
8. Whether the trial Court did not misdirect itself, and also failed to appreciate the circumstances under which the latin maxim “memo dat quod non habet” was used by Plaintiffs counsel.
9. Whether the trial Court erred in law when it held “The sale or conveyance made to the father of the 1st- 3rd Defendants was valid in the circumstances under the Urhobo Uvwie Native Law and Custom because at least one principal member joined in the conveyance since the root of title of the 1st – 3rd Defendants is adjudged proper and valid. Conveyance to other persons by him stands valid and so they have not trespassed. The Defendant having been in possession since their acquisition of title from the Defendant and will not be restrained.”
The 1st – 3rd respondents’ issues, on the other hand, are thus:
i) Whether on the evidence before the
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learned trial judge, appellants are entitled to the declaration sought by them in the Court below?
ii) Did the appellants establish a case of fraud and or forgery of exhibits A, B and J against the respondents so as to vitiate and nullify the instruments by which respondent’s father acquired the land in dispute?
It is timely to indicate that the 1st – 3rd respondents herein raised a point of preliminary objection to the Appeal herein by his NOTICE OF OBJECTION TO APPEAL. The Grounds for the preliminary objection are clearly and elaborately set out at paragraphs 2.1 of the 1st – 3rd Respondents’ Brief of Argument thus:
“That this appeal is incompetent and void as there is no ground of Appeal on which the appeal can be sustained. Consequently the Court of appeal lacks jurisdiction to entertain the appeal.”
Arguing this points of objection, it was submitted that all the 9 Grounds of appeal are, in law, incurably bad and incompetent and void; that all the Grounds of Appeal contravene Order 6 Rules 2(2) (3) and Rule 3 of the Court of Appeal Rules 2009 (sic) (There was a 2007 Court of Appeal Rules,
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rather). Submits that the Rules are not optional but mandatory.
Reproducing the Order 6 Rules 2(2), (3) and Rule 3 thus:
(2) “Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered consecutively.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part hereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
It was submitted that Ground one is vague as no indication of what constituted the error of the trial Judge in the portion of the Judgment quoted in the ground of appeal is shown.
That the particulars given is vague and has no relationship with the quoted
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portion of the Judgment.
The ground 2 (two) is also, according to the learned counsel, vague as the error alleged is not shown. That the nature of the error is not indicated. That the particulars given do not relate to any alleged error and/or are in themselves incomprehensively vague.
c. That the ground three (3) did not state concisely, a distinct complaint rather than 2 (two) different complaints in two different paragraphs.
That the ground is nebulous and uncertain as to what complaint was being raised. What the “law” or “fact” that the judge did not appreciate, was left vague in that Ground 3. That the said ground did not constitute/disclose a reasonable Ground of Appeal. It was also observed as follows:
“I would have appreciated the appellant to expatiate this ground by way of stating the particulars that would define, elucidate or expound with clarity the nature of the exposition of what the record of appeal is all about. This type of ground is with the greatest respect very difficult to understand. It is difficult to ascertain what the appellant has in mind. Since I am unable to fathom and readily
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appreciate what message he is sending across, I hold and I agree with the respondent that this ground is vague. Having so held, I hereby strike it out. It is essential to state that clarity of thought should precede clarity of expression. A ground of appeal should not lend itself to obscure expressions which would inevitably task the reader as to what message is being put across.”
For the aforesaid, it was submitted that the three grounds are bad and, the Honourable Court is urged to strike it out and to dismiss the appeal. For this proposition, the learned counsel relied on Nuhu V. Ogele (2004) ALL FWLR (pt 193) 362 and 374 where a similar Ground of Appeal was struck out and the appeal dismissed, in that said case…
His Lordship, Pat Acholonu, JSC stated thus:
“I would have appreciated the appellant to expatiate this ground by way of stating the particulars that would define, elucidate or expound with clarity the nature of the exposition of what the record of appeal is all about. This type of ground is with the greatest respect very difficult to understand. It is difficult to ascertain what the appellant has in mind. Since I am unable to
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fathom and readily appreciate what message he is sending across, I hold and I agree with the respondent that this ground is vague. Having so held, I hereby strike it out. It is essential to state that clarity of thought should precede clarity of expression. A ground of appeal should not lend itself to obscure expressions which would inevitably task the reader as to what message is being put across.”
In the case of ODUAH v. FRN (2012) 11 NWLR (PT.1310) 76 at 95:
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant”
2.2 In ground 4, the error alleged is couched in an argumentative and narrative manner when it asserted that the judge based its judgment mainly on evidence which did not exist and as such, the ground contravenes Order 6 Rule 2 (3) of the Rules of this Court. The particular of error and the
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purported ground of appeal consist of the allegations and unfounded complaints. The particulars are totally vague and incomprehensible and therefore contravenes Order 6 Rule 2 (2) and(3). There is nothing in the purported particulars showing on what evidence the judge erroneously based its decision.
In ADODO v. ISMAILA (1998) 2 NWLR Part 573 page 214 at 222 Paras F – H, the Court stated thus:
“Particulars of a ground of appeal are the amplifiers of that ground. They support the ground and must relate to the ground of appeal. They should not be argumentative, a submission or narration sought to be proffered at the hearing of the appeal. They should not be independent complaints from the appeal itself but auxiliary to it.”
2.2 (i)Ground five. This ground contravenes Order 6 Rule 2 (2) (3) and 3, in that the complaint is vague, argumentative and narrative. The ground is vague as to the nature of the error. The particular given is ague, nebulous and is not related to the complaint. In MOHAMMED v. BABALOLA (2012) ALL FWLR PT 623 AT 1895, the Court in defining vagueness of a ground of appeal stated thus:
“Vagueness of a ground of appeal may
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arise where it is couched in a manner which does not give allowance for it being understood or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague when the complaint is not defined in relation to the subject matter or the particulars are clearly irrelevant to the grounds” page 1924 Para B.
In ODUAH v. FRN (2012) ALL FWLR PT 650 at 1349, the Court stated thus:
“a ground of appeal shall not contain arguments or narrative. It shall not be argumentative. Where it becomes argumentative then it becomes argument which rightful place is in the brief of argument”. See page 1360, Para D.
2.2.1 (i) Ground six did not disclose the nature of the error of law. Further, the particulars set out bears no relationship to the alleged error.
(ii) In ground seven the particulars are argumentative and conclusive and do not relate to the error of law as alleged. The alleged error of law is vague and nebulous.
(iii) Ground eight is vague and is not supported by the particulars set out, and or are not directed as a complaint against the ratio of the judgment of the learned trial judge.
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(v) Ground nine is vague and the purported particulars of error did not show the error of the trial Court. The ground and the particulars are vague and general thus contravenes Order 6 Rule 2(2) and (3) of the Court of Appeal Rules 2009.
2.2.2 Ground ten is the omnibus ground. Although valid, ground 10 was argued along with ground 3 which respondents contend is an invalid ground of appeal. It is not for the Court to separate arguments in support of an invalid ground and a valid ground. The vice of the invalid ground afflict the valid ground and this render both grounds and the arguments thereon invalid.
In Chief Bereyin v. Gbodo (1989) 1 NWLR (Pt.97) 372 at 380 Kolawole, JCA stated thus:
“But assuming that ground meets up all the requirement of Order 3 Rule 2(2), the ground was argued together with grounds 5 and 6. It is therefore a futile exercise to take the grounds which are incompetent and sift that which is competent therefrom because these grounds were argued as one ground. It is not possible when two incompetent grounds of appeal are argued in the brief of argument with competent ground of appeal for the Court to be able to examine in the
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light of the grounds of appeal whether the judgment appealed from is wrong or right.”
As Salami JCA put it in Anyalogu v. Agu (1998) 1 NWLR (Pt.532) 129.
“The grounds of appeal filed without compliance with the condition precedent ruined that appellant’s case. It gives me fresh reminiscence of the biblical sower, some of whose seeds fell amongst thorn and when they germinated and grew up they were choked up by wild uncultivated bush. The issues carved out of bad grounds literarily choked up those of good grounds. In that judgment I observed as follows:
“This is the mixed grill served and I am of the firm view that it is not the business of the Court to sift chaff from grain by performing a surgical operation on the appellant’s brief to extract argument in respect of the valid grounds from the invalid ones, as such exercise may involve the Court in descending into the arena and the dust rising there from may of necessity becloud its judgment. The duty of the Court is that of an umpire whose function in the interest of justice is to tend the rope and not to step into the brawl by excising argument on good grounds of appeal from those of
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bad ones. See Honika Sawmill (Nigeria) Limited v. Mary Okojie (1994) 2 NWLR (Pt.326) 252 by 262 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.”
That appellants have no valid ground of appeal to support the purported appeal. Consequently, respondents contend that this appeal is incompetent and void and that the honourable Court lacks jurisdiction to entertain it.
2.3 All the 9 purported grounds of appeal are in breach of Order 6 Rule 2 (ii) and (iii) and Order 6 Rule 2, 3 of the Court of Appeal Rules. The grounds and or their particulars are mere narratives, argumentative, conclusive and assumptions or legal arguments which do not challenge the ratio decidendi of the judgment. The alleged 9 grounds and their respective particulars are bad and void as grounds of appeal.
IBIYEYE JCA stated in the case of OKUMODI v. SOWUNMI (2004) 2 NWLR PT 856 PG 9, that:
“Any particulars of a ground of appeal which are conclusive, argumentative, and vague are outside the precincts of the application of Order 6, Rule 2 (2) of the Court of Appeal Rules, 2011.”
In BALONWU v. OBI (2007) 5 NWLR (PT 1028) 488, BADA JCA stated that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Any particulars of a ground of appeal which do not flow from the grounds or which have no bearing about the judgment or ruling appealed against or which are argumentative, are bad, and they offend the provisions of Order 6 Rule 2(2) and (3) of the Court of Appeal Rules, 2011. Furthermore, once one or more of the particulars of any ground of appeal are rendered bad, the remaining particulars of the ground of appeal serves no useful purpose because the Court will not give effect to the ground of appeal by excising the bad particulars. The entire ground of appeal will be rendered incompetent and will be struck out.”
In the instant appeal, the grounds of appeal not only narrated events alleged to have taken place or not to have taken place in the course of the proceedings but also contained argument and narrative in violation of the prohibition in Order 6 Rules 2 (3) of the Court of Appeal Rules 2011. The grounds of appeal are not directed at the ratio decidendi of the judgment. See also FHA v. ODUSANWO (2007) 9 NWLR (PT 1039) 360 @ 378.
The Appellant filed no Reply Brief nor responded to the preliminary objection raised in any manner whatsoever.
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I hold that, by this, the Appellant concedes to the vagueness and uncertainty of the impugned grounds of Appeal which I find as submitted in the objection. I adopt the submissions of and agree with the analyses made on each of the Grounds of Appeal as made by the 1st – 3rd respondents, herein. The Grounds are vague, argumentative, conclusive and incongruous. The objection succeeds and accordingly all the incompetent Grounds of Appeal are struck out. See BALONWU V. OBI (2007) 5 NWLR (pt 1028 488).
Having reproduced the incompetent Grounds of Appeal earlier on and also reproduced the Issues purporting therefrom, I hold that those incompetent Grounds can germinate no competent Issues. The Appeal is struck out.
Peradventure I am wrong and that a competent Notice of Appeal exists, I shall proceed.
I shall therefore, and do adopt the 1st – 3rd Respondents’ issues for the determination of this appeal; for after all, even if an Appellant formulates no issues or does formulate an inelegant or defective Issue, the Court is still at liberty to decide the matter in the manner that the justice of the case permits. That is to say that the
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Court is entitled to frame or reformulate the Issues for determination.
I adopt the Respondent Issue’s, which are viz;
i) Whether on the evidence before the learned trial judge, appellants are entitled to the declaration sought by them in the Court below?
ii) Did the appellants establish a case of fraud and or forgery of exhibits A, B and J against the respondents so as to vitiate and nullify the instruments by which respondent’s father acquired the land in dispute?
By the Issue No. 1 of the Respondents, which I adopt,
The Appellants’ counsel had argued that from the evidence of PW1, PW2, PW3 and PW4 at the trial Court, along side Exhibit ‘H’ ie Litigation survey plan the 5th Amended statement of claim had been amplified by the evidence that the plaintiffs gave a portion of the land measuring 1,191.24 square metres to the 1st – 3rd Defendants’ predecessor and that the acres of land contained in exhibits A, B, A1 or J were not sold to the 1st – 3rd Defendants/Respondents predecessors; and that invariably, the 1st – 3rd Defendants’ predecessor took more land than was granted
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him and that the plaintiffs/Appellants are the people entitled to the statutory right of occupancy over the whole land in dispute.
The Appellant had submitted that the finding of the trial Court that they, as plaintiffs, could only succeed if they were able to prove that they did not convey any interest in the family land to J. T. Kodesoh or that J. T Kodesoh took more land than was given to him was wrong.
That the plaintiffs will be required to demonstrate this through evidence and the record tendered. Their counsel had contended that it was ridiculous for the trial Court to have so reasoned as their pleadings and the evidence of PW1 and PW3 had shown clearly that the plaintiff did not sell or alienate the land claimed by the 1st – 3rd Defendants/Respondents’ predecessor – chief J. T. Kodesoh
Paragraph 18 of the 5th Amended statement of claim was relied upon in support.
The learned counsel submitted that the findings of the Court was perverse and should be set aside. Eke Umazi Ndukwe Vs. Legal Practitioners Disciplinary Committee & Anor (2007) vol. 146 LRCN Page 804 at 808 ratio 7 of page 827 par. P-Z on the setting
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aside of unsound findings were cited in aid.
The Appellants had also argued that contrary to the position of the Court, the identity of the land in dispute was not uncertain. That the evidence of the PW1 and PW4 had clearly shown the land as being 3.922 hectres which was the same thing as 9.687 acres and with the specific evidence that the area was verged green in Exhibit ‘H’ had sufficiently identified the land. That the figures 3.922 hectres appearing with the (9.687 acres) put in parenthesis makes them out to be the same.
On the whole, the Appellants are contending, that there was a misapprehension of the facts and evidence led, such that the decision was wrong, as the identity of the land in dispute was certain and the evidence that the 1st – 3rd Defendant/Respondents’ predecessor, J. T. Kodesoh had title that was fraudulently acquired and/or wrongly conferred was not disputed. That the plaintiffs only gave 1, 191.24 square metres and did not sell any of the land. Counsel contends that the Plaintiffs/Respondents had proved their claims on the balance of probabilities or preponderance of evidence.
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That forgery had been established against the 1st – 3rd Respondents’ acquisition of the land and that Judgment entered in their favour should be set aside and this appeal allowed on this ground. It was also argued that with the evidence of PW1 and PW2 relating to alienation of family land in the custom of the Osemoroh family, Section 16 (2) of the Evidence Act, 2011 on who asserts the existence of a fact applies. Sections 18 (2) and 73 of the Evidence Act also alluded to.
That there was no basis in relying on the testimony of DW2 that the Head of a family and a principal member of the family had the right to sell or lease the real property of a family.
The learned counsel submitted that the Osemoroh family, had four principal members as there was in evidence the existence of 4 main branches of the family. That the position of the law as judicially noticed is that a Head of family and principal members can demise, sell, lease out family property. Babayeju Vs. Ashamu (1998) 9 NWLR (pt 567) pp. 554 – 555 and Lukan V. Ogunsusi (1972) 5 Section 40 and not just with a principal member or a non-member of the family.
The Deeds of alienation relied on
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by the Defendants/Respondents were denied as having been fraudulently procured. It was contended, therefore, that, the 1st – 3rd Respondent’s predecessor had no valid title and could not therefore, have transferred by any valid lease to the 4th Defendant/Respondent. It is also argued that all the alienations done in the nature of sub-lease and/or sale from J. T. Kodesoh Vide Exhibit F. to the 4th Defendant/Respondent in 1987 and the subletting of a part of the land to Okurogbo motors were a nullity, being fraudulent.
The learned counsel had also argued that the sub-lease of 30th December, 1993 ought to have been declared null and void as same was done during the pendency of this suit commenced in 1986. Osagie Vs. Oyeyinka (1985) 1 NWLR (pt 11) page 62; Matthew Okechukwu Enekwe Vs. Inter Merchant Bank of Nigeria Limited & Ors (2007) Vol. 146, 842 at 844 – 845 ratio 3 relied upon.
That both the 1st – 3rd Defendants/Respondent’s father, Chief J. T. Kodesoh and the 4th Defendant/Respondent’s have been parties to the suit ab-initio. That this act of the 1st – 3rd respondent’s father and the 4th confirms
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the fraud complained of. That this Court should set aside the decision of the trial Court and declare that the lands covered by Exhibits F and G belong to the Osemorah family.
The Appellant also addressed at length the import of the cancellations and alterations in the Exhibit to contend that they proved fraud as alleged with reference to Exhibits ‘A’, B, and A1 or J. that the Appellants’ family did not sell their land as contended.
RESPONDENTS’ ARGUMENTS
I had earlier indicated my adoption of the Respondents’ Issues for the determination of this appeal, they being compact, comprehensive and more succinct.
ISSUE NO. I
Whether on the evidence before the learned trial judge, appellants are entitled to the declaration sought by them in the Court below.
It was argued that the Appellants’ case as pleaded were so contradictory as it were as also on the evidence led. That the relief of declaration of title as sought or any other could not be granted. The averment in paragraphs 8 and 18 of the 5th Amended statement of claim were reproduced and submitted thereon as follows:
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That the Appellants had set up three contradictory cases on the Respondents father’s acquisition of the land namely:
i) Pa Okwowe the head of Osemoroh family alone sold and conveyed family land to Chief Kodesoh without the consent and or authority of the family via the deed registered as NO. 39/39/42 admitted in evidence as Exhibit B. Exhibit B shows that the family sold through its head and a principal member
ii) The Osemoroh family did not lease, sell/alienate any of the family land to chief Kodesoh.
iii) Osemoroh family gave a portion of the family land measuring 1,191.24 square metres to Chief Kodesoh. However, the Exhibit B is not a Deed of Gift, but a conveyance for valuable consideration.
The counsel submitted that these three positions were mutually exclusive and inconsistent with each other.
That claimants did not call any family member to testify and that the evidence of PW1 and PW3 were hearsay as they had stated that, they were not present at the meeting where family land matters were discussed as their father was alive and was personally at the meeting.
That the evidence of Respondents were supported by the Exhibits A,
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B, C and J.
That the pleadings on a gift of land to Chief Kadesoh, by the Appellants was not proved as those exhibits only showed that there were conveyances made for valuable consideration.
That the pleadings in that regard was not proved.
It is argued that the Respondents are in possession of the land in dispute and had stated that their late father, Chief Kodesoh acquired the three parcels of land from the Osemoroh family. After referring to the three (3) Deeds of conveyance, it was argued that they proved clearly that respondents’ father acquired the land therein described from Appellants’ family and it is not open to PW1 and PW3 who did not participate in family meetings where the land matters were discussed to say they were not so alienated.
That the Appellants’ main grouse is that the lands were sold, alienated and or transferred to Chief Kodesoh by the head of the family alone. That the Appellants had conceded that Okwowe Ekaidere and Eborevbori Itaye were at different times heads of the Osemoroh family. Exhibits A and J at pages 297/350 show that both men conveyed and were expressed to have granted on behalf of
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the Osemoroh family. Exhibits a, b and c all debunk the fact that the head of Osemoroh family alone acted in the grant and the conveyance to chief Kodesoh.
It is argued that the sale was not by the Head of family alone. It is also argued that the appeal should fail on this basis; and more so that it is the law that where the Head of a family alienates family land, he is expressed to have done so on behalf of the family. That the alienation is valid and effective. OHIAERI V. YUSSUF (2009) 6 NWLR (pt 1138) 207 @ 227-228 relied upon.
That the Appellant’s assertion that the Osemoroh family had four principal branches who must consent and sign the Deed before any conveyance by the family is done, was not made out. That the case of Babayeju v. Ashamu (1998) 9 NWLR (pt 567) 547 @ 554 – 555 cited in the Appellants’ Brief of Argument did not avail them, as in that case, the conveyance of the family land was made by a principal member alone without the head. That in the instant case the head and principal members granted the conveyance of the land.
RESOLUTION OF ISSUE ONE ADOPTED
This is a civil matter; and the trite principle of law is
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that a party succeeds or loses, based on the strength of his case as made out. See Mr. S. B. Olaleye V. Trustee of Ecwa (2010) LPELR – 4743 CA. See also Okulaja Vs. Odubanjo (2017) LPELR 41949 CA.
It is also a settled principle of law that pleadings by a party that are at variance with the evidence he led at the trial are deemed to have been abandoned and the evidence led, in consequence go to no issue and should be disregarded. See Adebusuyi Vs. INEC PT. 545 ALL FWLR 20 @ 237.The Averments can rightly be struck out and the evidence led without any subtractum to rest on, is disregarded as it is a legal orphan. As a corollary, the legally abandoned pleadings and disregarded/discountenanced evidence, as it were, lead to the only inevitable conclusion that the case has not been proved; this will entail the consequential result of a failure and dismissal of the claim or suit, as the case may be.
In the instant appeal, the Appellants had pleaded thus:
7. The Plaintiff’s avers that the said land was founded from time immemorial by the ancestor Osemoroh
8. The Osemoroh Family has four principal branches and the head of the
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family then pa Okwowe was neither authorized nor did he obtain the consent of the 4 branches to the purported alienation of the Osemoroh family land to the 1st Defendant. The deed Registered as 39/39/359 at Benin affecting plaintiffs land, it was only the head of the family that purportedly signed.
Vendor in the conveyance is not a member of Osemoroh family.
A. Plaintiffs shall contend that this deed is void and null in law. E. Ibekeh thump printed the said deed of conveyance whereas he was Literate as Indicated when he signed another deed No. 28 at page 28 volume 517 at Benin to show that the thump printing could not be that of E. Ibekeh and that it was forged, it is the land embodied in this deed that the 2nd defendant is occupying without the consent of the Osemoroh family.
B. The 1st defendant who return from Lagos has been in the habit of causing trouble and mischief for instance in suit No. 10/5/78 Enuwareme Ibekeh and others Vs Stephen Nkemchor, the 1st defendant deceitfully made Ibekeh his old time friend in Lagos the head of Osemoroh family whereas the head of the family at that time was Pa Oborevbori in 1978 another mischief was
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perpetuated in Suit No. W/38/74 when he sued the paternal members of the family and cooked up settlement on the 22/8/80 that never took place.
9. In Uvwie/Urhobo Custom family land can only be leased, alienated or sold, by the pertanal male head and principal members of the family.
10. The Plaintiffs avers that the first Defendant is maternal great grant child of Osemorh. The four principal branches are (1) Efenyefrun male (2) Okoro male (3) Irabo male (4) Akpanigbe female. Efenyefrun begat (a)Ekaldere Male (b) Ekedaye Male (c) Abitoyo Male (d) Madasi Female (e) Itiara Female and it was Itiara who Begat Egbere Female who begat Johnson Tanuro Kodesoh first substituted Defendant in this suit. (2) Okoro Male begat a. Iteye Male b. Edeniren Male and others, and Edenirn begat Boyi Edeniren Male who begat Famous Ighotemu Male. The 1st substitute plaintiff in this suit (for details we shall rely on the family tree chart during trial).
In Chemical and Allied products PLC V. Vital Investment (2006) LPELR 5434CA, it was held thus: “By the appellant alleging a meeting having been held for installment payment, the onus had shifted onto it to prove
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the assertion. The law is trite that he who asserts has the burden of proof.” The Appellants ought to have called evidence. It is therefore correct as submitted by the Respondents that those pleadings must be proved, as such. Unfortunately, there was no proof of any sale or conveyance to Chief J. T. Asemoroh, by Okwowe Ekaidere, the Head of the Osemoroh family solely or alone, as pleaded.
The PW1 and PW3 admittedly, were not present and knew nothing of the transaction as they said their father was alive and it was he that was to be there. Their evidence is of no evidential value; their hearsay evidence even, if reckoned, though not, with the Exhibits ‘B’ showing that the Head of the family conveyed the family land not alone but with a principal member, the burden had shifted to them to prove otherwise.
The law is as settled in Ohiaeri V. Yussuf (2009) 6 NWLR (pt 1138) 2007 at 227-228 thus:
“The established principle law in Nigeria is that where the head of family disposes family property without the consent of other members of the family, it is still a valid sale”.
In the case on appeal, the Head of the family
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and a principal member did act.
Indeed, Eborevbori Itoye who also signed with Okwowe Ekaidere was testified to as a one time Head of family of the Appellants. He was certainly a principal member. Even if the Head of the family acted solely without the consent or concurrence of the principal members, the conveyance cannot be void but only voidable. In this matter, the Appellants also asserted the fact of existence of 4 branches of the family by their pleadings and evidence; which evidence is unreliable as it is from witnesses that I had found to be testifying based on hearsay and have not been shown to be experts on the family custom/or history. It is a bare assertion and unreliable evidence on a piece of material evidence that issues have been joined on, i.e the number of principal members. Even then a principal member of the family will suffice. The law is not that all the principal members must join. Be that as it may, the law is that a Head of family may alienate on behalf of a family. It may only be voidable where principal members do not agree. Here, the Appellant did not name the 4 principal Branches alleged nor did they lead any evidence as to who
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those principal members representing the Branches were. There was no evidence as to whether there were other Branches that were not “principal.” The dichotomy had not been clarified and the evidence was suspect and unreliable, therefore, there was no probative value to it.
The presumption is that there does not or did not, exist any such 4 branches or principal members whose consent or participation in any alienation was required.
Evidence which would have been led, but omitted raises the presumption that they do not exist or if led would have been unfavourable to the Appellants. See Section 149 (1) (d) Old Evidence Act 2004, now Section… Evidence Act 2011. The PW1 and PW3 had, in their hearsay evidence, said the Appellants’ family did not sell land to the 1st – 3rd Respondents’ father/predecessor. Indeed they denied selling, leasing or alienating their family land but pleaded a gift of land to him and to the Head of the family; Chief Okwowe who later sold to two named persons and that they also sold another plot to an unnamed tenant of theirs. See Paragraph 18 of the 5th Amended Statement of claim. Does alienation not
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include gift? If gift of land was made, then why the denial of any alienation at all. Even then the so-called gift was not, however, proved by any evidence at all.
In a civil case, the weakness of the case of the Defence is immaterial, so long as the plaintiff had not, on the preponderance of evidence, made out his entitlement to the judgment of the Court. See Mr S. B. Olaleye V. Trustees of Ecwa 2010 LPELR 4743 (CA).
The Appellants had claimed that they were entitled to a Statutory Right of occupancy over the land conveyed to the respondents’ father by Exhibits A, A1, B and C and yet they complained against the finding that they can only succeed if they can show that Osemorah family did not convey any interest in the land to J. J. Kodesoh or that J. T. Kodesoh took more land than was given to him. In Babayeju V. Ashamu the conveyance was done by a principal member alone, without the Head of family and thus distinguishable from the present case on appeal, on the facts and evidence led.
The Court was perfectly right in his reasoning in view of the claim and the evidence led. This issue is resolved in favour of the respondents and
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against the Appellants.
ISSUE 2
Did the appellants’ witnesses establish a case of fraud and or forgery of exhibits A, B, and J against the respondents so as to vitiate and nullify the instruments by which respondents’ father acquired the land in dispute?
The Respondent contended that, a person who based his case on fraud or forgery must not only plead it specifically, he must give the particulars of the fraud or forgery and prove same. Order 15 Rule 4 of Delta State High Court (Civil Procedure) Rules, 2009 and Olagunju V. Adesoye (2009) ALL FWLR (pt 232) 146 @ 1452 relied on. That fraud and/or forgery had not arisen from the pleadings.
In paragraph 9, it was pleaded thus:
“9” E. Ibekehthum printed the said Deed of conveyance registered as 39/39/369 at Benin now at Asaba Land Registry. He also signed another No. 28 at page 28 in vol. 517 at Benin now Asaba Land Registry. All these conveyances are forged.
Neither the specific plea of fraud nor their particulars were pleaded. In paragraph 23, appellant had averred that the Respondents’ father had caused a newspaper publication of the size of the land
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conveyed to him. That the fraud was evident from the differential in the sizes of the land in the publication and what is in the forged conveyance of 20th May 1971.
It is contended that the Newspaper publication is not a Deed of conveyance and a difference or variation between the sizes of the land indicated in the publication and the Deed, did not constitute a forgery.
RESOLUTION
I have read the submissions on this Issue 2 relating fraud and forgery.
The Exhibits A1 & J relating to the Deed dated 20th May 1971 had the initials of the DW1 attested to same and testified to without contradiction. The copies of these same documents in the possession of both parties are the same; what is more, the Appellant did not tender any other documents shown to be the authentic one, so as to compare same with the Exhibits A1 and J so as to come to the conclusion that the documents were indeed forged.
This is because in the proof of forgery, the authentic document and the one challenged as being a forged document must both be tendered to compare. See Effiong Vs. Chief of Air Force (2007) SC. Karmadeen Vs. Chief of Air Staff 2013 (CAR).
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The purported evidence of PW1 on the alleged forgery of Exhibits A, B and C is a mist; a vapour that cannot settle to be seen. When asked in cross-examination why he said the Deeds were forged, PW1 merely said: “when I saw it I knew it was forged because when you look at forged document, you can know.’ See page 175 lines 28-31 of the records.
Forgery is not proved by a mere look; were it so the “look” of every interested person or witness would amount to proof of forgery. The proof of forgery in law cannot be left to the speculative perception of a witness; and more so in respect of alterations attested to and testified to uncontradicted, as in the exhibits A, B, C herein. PW1 could not competently testify on any act of forgery or fraud in respect of the land documents or transaction he was not part of; so also PW3 who said it is only the people who gave the land to Chief J. T. Kodesoh that will know the extent of any trespass thereon. Indeed, his testimony did not categorically assert trespass. If anything, it strengthened the Respondent’s case that there was no trespass committed nor any such proved at all. Indeed, PW3 did
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nothing as he had no role to play in the disputed family land during the life time of his father, who he said died only in 1985 long after the alleged conveyances in dispute. He could not testify on any act of fraud or forgery.
Issue 2, is resolved in favour of the Respondents.
The available evidence in the record of appeal, which binds the parties as well as the Court does not permit of the speculation by the Appellants herein, on fraud and forgery.
The copy of the Deed of conveyance (Exhibit “J”) dated the 20th day of May 1971 and registered as Number 1 at page 1 vol. 114 of the Lands Registry in the office in Benin City appears regular, having been certified by the Chief Deeds Registrar, Lands Registry, Benin City on 9th October, 1989.
Duly executed, the only alteration as to dimension of land is initialed; there is an illiterate jurat thereon in the attestation. The Deed enjoys the presumption of validity pursuant to Sections 155, 160 (3) of the Evidence Act 2011 created in favour of Deeds of over 20 years old and the presumption that the alterations have been made before the completion thereof applies.
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The Exhibit ‘G’, being the PUBLIC NOTICE ON OSEMORHO FAMILY LAND AT AGHARAMU OPPOSITE AGRICULTURE EFFURUM WESTERN URHOBO DIVISION, MID-WESTERN STATE OF NIGERIA, PUBLISHED IN THE NIGERIAN OBSERVER, 2ND SATURDAY 12, 1972 (12-2-1972) VOL. 4 NO. 1051 provides that only 5 acres was granted to J.T. Kodesoh a member of the family from the said family land. That only 2 persons represented the family as personal representatives in the grant to him.
The address of counsel and the willy-nilly wishes of their clients, the Appellants herein, cannot make this Court endorse an in-equitable resile from the conveyance as proved and adjudged by the trial Court in order to unsettle a title validly conferred and/or conveyed.
See Nwankwo V. Nzeribe (2003) LPELR 5452 (CA) where the Court on the position of the law as regards a party who has benefited from a transaction and turns around to challenge the legality of the transaction.
I am of the view that the Appellants had neither proved their claim nor discharged the burden that had shifted to them pursuant to Section 136 of the Evidence Act 2011. See generally the cases of Nduul Vs. Wayo & Ors 2018, LPELR 45151
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Akinbade & Anor Vs. Babatunde & Ors (2017) LPELR -43463 (SC). John & Ors V. Amaechi & Ors 2016 LPELR 40982 (CA); Jaji & Ors Vs. Olowora & Anor (2015) LPELR 25575 (CA); Okulaja & Ors V. Odubanjo (2017) LPELR 41949 CA Mr. S.B. Olaleye V. Trustees of ECWA (2010) LPELR 4743 CA; In Ohochukwu AG. Of Rivers State & Ors (2012) LPELR 7849 (SC) the Supreme Court held thus “It is not enough as submitted by the Appellant on his reply brief that the installmental payment was pleaded on their further amended statement of Defence. The law is trite that pleadings not substantiated by evidence go to no issue”. Per Ogunbiyi; JCA Pages 27-28 paragraph E-A. See also Afolabi & Ors Vs. Western Steel Works Ltd LPELR – 12158.
Flowing from the above position, it is only after the plaintiff has proved his case that the burden will shift to the Defendant.
I find it apposite in this appeal to adopt and apply the apt proverbial elucidation of my learned brother, Abimbola Obaseki-Adejumo, JCA in Appeal No. CA/AS/42/2018 Pan Ocean oil Corporation Nigeria Limited and Humigrati Chemical Co. Ltd delivered on Friday 22nd May
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2020 at page 22 thus:
“…Flowing from the above, the acts of the appellant can be likened to one who supplied the cooking materials for a meal and has enjoyed the benefit of the meal and then turns around to complain about the materials use (sic) in making up the meal, claiming innocence.”
Issue 2 is resolved against the Appellant and in favour of the respondent.
On the whole, I hold that the trite position of the law not to disturb the findings of facts made upon evidence and based on the hearing of testimony and observance of the demenour of witnesses by a trial Court as in the instant case, and coupled with the unrebutted documentary exhibits tendered as against the unproved pleadings of the Appellants, this appeal ought to be dismissed. It is so ordered, and in consequence thereof – the decision dismissing all the reliefs sought in suit Number W/260/86m25 is affirmed.
Appeal is dismissed.
I award no costs.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother M. A. DANJUMA JCA. I agree the objection is valid and upheld. This appeal
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is dismissed.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the lead Judgment of my learned brother, M. A. DANJUMA, JCA before now and I find that he has covered the field and dealt with the salient issues at stake. I therefore, agree with the reasoning and conclusion reached therein.
I believe the appeal lacks merit and it is hereby struck out, the judgment of the Delta State High Court delivered on 24th July, 2013 by Honourable Justice G. O Akperi is hereby affirmed. I abide by all consequential orders in the lead judgment.
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Appearances:
M. Dunkwu, Esq. For Appellant(s)
J. Irherhime, Esq. – for the 1st – 3rd Respondents:
Mrs. Roli Craig, Esq. – for the 4th Respondent, sued but filed no Brief nor appeared in Court For Respondent(s)
