KPOLUKWU KANAYO & ORS V. ONOCHIE UDEH & ORS
(2012)LCN/5743(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/B/370/2006
RATIO
EVIDENCE: EFFECT OF WHAT IS REQUIRED
The law is trite that what is admitted requires no further proof.” PER TOM SHAIBU YAKUBU, J.C.A
JUDGMENT: EFFECT OF AN ISSUE NOT APPEALED AGAINST
I am satisfied that the findings of the court below, reproduced above were borne out of the evidence on the records before it. There is no appeal or cross-appeal against it, so it remains subsisting and binding. Just see: Calabar v. Ekpo (2008) 2 SCNJ 307 at 324- 325; All Progressive Grand Alliance (APGA) & Anor V. Chief Victor Ume (2011) 3 SCNJ 274; Akere V. Governor, Oyo State (2012) All FWLR (pt. 634) 53 at 81 (SC). PER TOM SHAIBU YAKUBU, J.C.A
Justices
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. KPOLUKWU KANAYO
2. CHIKE ALLANAH
3. DUMEBI KPOLUKWU
4. JIDEUCHE ALLANAH
(For themselves and on behalf of Obi-Okonya family, Umuekwo, Umuaji Quarters Asaba excluding the defendants)Appellant(s)
AND
1. ONOCHIE UDEH
2, NZEM ALLANAH
3. JOHN ALLANAH
4, OKONJI ALLANAH
5. DR. N.C. ALLANAH
(For themselves and behalf of the so called Obi Okonya Committee)Respondent(s)
TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment): The parties herein, are all members of the same family – the Obi-Okonya family, of Umuekwo, Umuaji Quarters, Asaba, Delta State.
The Appellants had constituted the Respondents as members of Obi-Okonya land committee, with the mandate to survey and plot the family land called Abor Obi Okonya, situate in Umuaji Quarters of Asaba Delta State. The said land is of a large expanse and had remained undeveloped because of some protracted litigations on it which involved some members of the family and other trespassers on the land. After the said litigations and the land was adjudged as belonging to the Okonya family, the members of the family thought it wise to take steps and share/allocate it to themselves. This led to the setting up of the land committee, to survey and plot out the said land.
The appellants alleged that the land committee having surveyed and plotted out the land, instead of submitting a report to the Obi-Okonya family, on its assignment, went beyond surveying and plotting of the land and shared/allocated the land to both the living and the dead members of the Obi-Okonya family. In consequence, the appellants filed an action against the respondents, claiming certain declaratory and injunctive reliefs and that the allocations made by the respondents be set aside.
Pleadings were filed and exchanged between the parties. The suit proceeded to hearing. At the end thereof, the learned trial judge, R.I. Bozimo, CJ., or 1st November, 2005 dismissed the appellants, claim.
This appeal by the appellants is in consequence of the dismissal of their action on 1st November, 2005.
There are three grounds of appeal contained in the Amended Notice and Grounds of Appeal, dated 29th January, 2007, but filed on 16th February, 2010.
The grounds of appeal are that:
“A The judgment of the learned trial chief Judge is against the weight of evidence.
B ERROR IN LAW
The learned trial chief Judge erred in Law by failing to set aside all allocations made by the Defendants/Respondents.
PARTICULARS OF ERROR
(i) It was evident as rightly found by the learned trial Chief Judge that the issue of allocation was beyond the mandate of the Defendants/Respondents.
(ii) The case of the Appellants that there was allocations to living and dead persons contrary to Asaba native law and custom was found proved by the lower court.
(iii) Having found that the Defendants/Respondents had no mandate to allocate land both to the living and dead persons. It was incumbent on him to set aside such allocations as he has the jurisdiction to grant less than was claimed if made out.
(iv) The order dismissing that arm of the Appellants, relief was not a logical and dispassionate consequence of the findings of the learned trial judge.
C ERROR IN LAW
The learned trial chief Judge erred in law by failing to declare that the Respondents had no rights to grant and allocate the Land.
(i) Being a declaratory relief, the Appellants proved by admissible evidence that it was not the brief of the Respondents to share and/or allocate Land.
(ii) The Learned trial chief Judge found the Appellants, case substantiated that the Respondents went outside their mandate to share Lands to family members both dead and alive.
(iii) The court found that the fact that the Appellants did not mention the names of dead allottees did not affect the strength of their case, as the Respondents did not ask for particulars.
(iv) The somersault by the learned Chief Judge in refusing the declaratory relief based on non-disclosure of the names either in the pleadings or in the litigation plan was most perverse.
In furtherance of the prosecution of the appeal, the appellants filed their brief of argument dated 29th January, 2010 on 16th February, 2010. A sole issue for determination was formulated therein, to wit: “Whether the Learned trial Chief Judge was right in refusing to declare the grants/allocations made by the respondents which went beyond their mandate a nullity and further declining to set aside same.”
In response to the appellants’ brief of argument, the respondents, brief of argument dated 24th February, 2012 was filed on the same date. It was deemed as properly filed on 4th July, 2012. In it, the following issue was identified for determination, namely:
“Whether the learned trial court was right having regard to the reliefs sought by the appellants in paragraphs 13 of the Further Amended Statement of claim dated the 2nd of February, 2005.”
Each of the counsel herein, at the hearing of the appeal on 8th November, 2011 adopted and relied on their respective briefs of argument. I hereby adopt the issue formulated for the determination of the appeal, by the appellants because it encompasses that of the respondents.
C.O. Erondu, Esq., of learned counsel to the appellants, submitted that the scope of the respondents’ mandate was limited to surveying and plotting the Obi-Okonya land. He referred to the pieces of evidence by the PW1, 2nd plaintiff, 4th defendant (PW5), and 4th plaintiff, which according to learned counsel, were corroborated by the 5th defendant in his evidence.
Mr. Erondu, submitted that the learned trial chief Judge having posed the question whether the defendants/respondents, were “given any mandate to do any act by the family in respect of the said land” and which she answered in the positive, (see pages 157 & 158 of the records), at that stage, the question of the mandate given to the respondents was settled and should have been so found for the plaintiffs/appellants. Learned counsel submitted however, that the learned trial chief Judge was in error when he later held that there was no evidence in a written form showing the mandate that was actually given to the defendants, and that the same holding was most perverse.
He referred to Ojogbue & Anor. v. Nwubia & Ors (1972) All NLR 662.
Learned counsel furthermore, submitted that the issue of whether or not the mandate given to the respondents, was in written form, was not the case of the parties, but made only by the trial court, who ought to have limited himself to the case agitated before him by the parties. He relied on Broad Bank of Nig. Ltd V. Odjemu (2001) 1 NWLR (pt. 712) 477 at 495. He also referred to paragraphs 9 and 10 of the Further Further amended statement of claim vis-a-viz paragraph 6 of the joint statement of defence – which indicated that the Abor Obi Okonya land had been partitioned and or shared to all the deserving members of the family, showing that the respondents went beyond the scope of the mandate given to them to survey and plot out the land only. And that on the pleadings alone, the question of the respondents having gone beyond their mandate, was settled in favour of the appellants, which needed no further proof.
Regarding the Asaba native law and custom to the effect that land is not allocated to the dead, but only to the living, Mr. Erondu submitted that the evidence of the 5th respondent at page 133 lines 19 – 20 of the record of appeal is an admission that “land in Asaba is only given to the living and not the dead”
Referring to the finding of the learned trial Chief Judge at lines 7 – 10 of page 155 of the record of appeal, to the effect that with the evidence of the 5th defend ant/respondent, the respondents went outside their mandate to share lands to family members dead and alive, he ought to have so declared in favour of the appellants and grant relief 2 partially. He submitted that the trial court had power to grant less or what a party claimed, but not more. He referred to Etim Ekpeyong & Ors V. Inyang Effiong Nyong & Ors. (1975?) 2 SCNJ 71. He however submitted that the learned trial Chief Judge was In error when he held at page 166 of the records of appeal that the appellants did not state the members of the family to whom the lands were allocated, when earlier at page 164 of the records, he had come to the right decision that the non-pleading of the names of the deceased members of the family by the appellants did not render their case weak, since the respondents did not demand/ask for further and better particulars.
With respect to relief 3, learned counsel submitted that since the appellants proved that the respondents had gone beyond their mandate, which the trial court found to be so, it was incumbent on the court to have granted relief 3 and set aside the allocations made at least, to dead persons, which was not in accordance with Asaba native law and custom. He urged that the appeal be allowed.
E.K. Kanu, Esq., submitted that the relief sought for by the appellants at paragraph 13 of the Further Further Amended Statement of Claim did not include a relief that the grants/allocations made by the respondents to dead people be set aside on the ground that it is contrary to Asaba native law and custom. He contended that parties are bound by their pleadings and any evidence which is at variance and not supported by the averments in the pleadings go to no issue and must be ignored or disregarded by the court. He referred to Emegokwe v. Okadigbo (1973) 1 All NLR (pt.1) 379 at p. 382; Akpakpuna & 3 Ors v. Obi Nzeka II & 3 Ors (1983) 7 SC 1 at 25.
Learned counsel, further submitted that a court of law has no competence and power to grant and award to a party, a relief or remedy that was not asked for because the court is not a charitable organization or Father Christmas. He relied on Ekpenyong & 3 Ors V. Nyong & 6 Ors (1975) 2 SC 71 at 80 – 81; Egonu & Ors. V. Egonu & 3 Ors (1978) 11 – 12 SC 111 at 133; Ezeakbekwe & 2 Ors V. Emenike (1998) 11 NWLR (pt. 575) 529 at 543 and urged that this appeal be dismissed.
I have dispassionately perused the pieces of evidence proferred by and for the parties herein vis-a-vis their pleadings. The claim of the appellants is essentially that the respondents were only mandated to survey and plot out the Obi-Okonya large expanse of family land situate at Umueko village in Umuaji Quarters of Asaba, Delta State, but they went beyond their brief and allocated lands to living and deceased members of the family. The pieces of evidence, especially by the PW1; 2nd plaintiff; 4th defendant (PW5) and 4th plaintiff were admitted by the 5th defendant/respondent who categorically said under cross-examination at pages 132 – 133 of the record of appeal that:
“we allocated land to Nwachukwu Allanah, Douglas Allanah, Mr. Obah Udeh, Thomas Udeh, Sylvester Allanah, Gabriel Allanah, Professor S. Allanah, Ikezue Allanah, I can’t recall if Nwachukwu Allanah was given plot 10. F.O. Allanah my uncle was also given a plot of land. F.O. Allanah died in 1984, Ikezue Allanah died in 1966 or 1967.
Professor Allanah died about 1978. Gabriel Allanah died in 1992, Sylvester died in 1988. Thomas died before the civil was. Obah Udeh died but I can’t remember the date. He died before 1990, Douglas Allanah died in 1981.
My committee was set up in 1999. Chief Isitina Allanah my father died in 1986. My committee also allocated land to him.”
The learned trial chief Judge at page 163 found and held that:
“The issue of sharing land to dead people was made a burning issue through out the entire case of plaintiffs. The 5th defendant, in his evidence admitted that they indeed shared land to their relatives who were late. It is the argument of E.N. Kanu for defendants that the names of these dead persons were not mentioned. I hold that this does not distract from the fact that lands were shared to dead people. The plaintiffs pleaded at paragraph 9 of the Further Further Amended Statement of Claim that these dead persons who got land included Dr. C. Allah. The submission of E.N. Kanu that the death certificate of the said Dr. C. Allanah was not produced does not weaken the evidence of the plaintiff as the defendant did not deny that averment. The law is trite that what is admitted requires no further proof.”
I am satisfied that the findings of the court below, reproduced above were borne out of the evidence on the records before it. There is no appeal or cross-appeal against it, so it remains subsisting and binding. Just see: Calabar v. Ekpo (2008) 2 SCNJ 307 at 324- 325; All Progressive Grand Alliance (APGA) & Anor V. Chief Victor Ume (2011) 3 SCNJ 274; Akere V. Governor, Oyo State (2012) All FWLR (pt. 634) 53 at 81 (SC).
I agree with the submission of Mr. Erondu, learned counsel to the appellants, that at that stage, having found that the respondents went beyond the mandate of surveying and plotting the land in question by further allocating the land to both the living and dead members of the family, the plaintiffs’/appellants’ claim had been proved on a preponderance of evidence.
The learned trial chief Judge had no further duty than to have entered judgment for the plaintiffs/appellants and needed not to have made a volt de-face, a summersault when he held at pages 165 – 166 of the record of appeal to wit:
‘The plaintiffs gave copious evidence that the defendants had no mandate to grant or allocate the plots of land. They did not state the members to whom these lands were allocated. The main trust of their evidence was that contrary to Asaba custom land was allocated to dead members of the family. Exhibit A, the plan tendered by them did not list the family members dead or alive to whom plots of land were allocated.”
However, his Lordship had earlier held that the names of the deceased members who were allocated lands were pleaded at paragraph 9 of the Further Further Amended Statement of Claim of the plaintiffs/appellants, which the defendants/respondent did not deny.
And what was worse for the respondents, was that the 5th defendant/respondent admitted the fact of the allocation of plots of land to dead members of the family and even named them in his evidence under cross-examination which added prosperity to the plaintiffs’/appellants’ case, but dire poverty to the respondents’ case! I am in agreement with Mr. Erondu that the latter finding by the learned trial chief Judge at page 166 of the record of appeal is clearly perverse because it runs counter to the evidence and pleadings and it has been shown or demonstrated that the trial court took into account matters which it ought not to have taken into account and shut its eyes to the obvious. The latter finding manifestly ran against the grain and at cross purposes with the earlier findings at page 163 of the record of appeal. It is unsound and therefore unacceptable. See: Kuma V. Kuma (1936) WACA 4; Akinloye V. Eyiyola (1968) NWLR 92; Isah Onu & Ors. v. Ibrahim Idu & ors (2006) 6 SCNJ 23 at 4s – 46.
In view of the foregoings, relief 13(2) of the claim, did not fail. It succeeded.
With respect to relief 13(3), it follows that since relief 2 succeeded, in relation to the allocation of plots of lands to both the living and dead members of the family and the said allocations were by the respondents which went beyond their mandate, those allocations cannot stand. They are each struck out. Relief 3, therefore succeeded and the allocations of plots of land made by the respondents are void and of no effect. They are each set aside, accordingly.
In sum, the appeal is not lacking in merits. It succeeds. Each side shall bear its costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read before now the judgment just delivered by my learned brother TOM SHAIBU YAKUBU, JCA. I am incomplete agreement with his reasoning and conclusion that the appeal should be allowed. I will add a few words.
The appellants as plaintiffs at the trial court had claimed that the family land committee had exceed its mandate of merely surveying and plotting out the family land and had shared the land both to the living and the dead. The Plaintiffs/Appellant wanted a declaration regarding the excessive exercise of power by the family land committee and injunctive relief preventing them from further exercise of the said excessive powers.
The trial court found that indeed the Respondents had no power to allocate land to anyone let alone to dead family members. However, the trial judge after the finding in favour of the Appellants turned around to refuse the declaratory and injunctive reliefs sought. The learned trial judge’s refusal to declare the grants made by the respondents a nullity and set them aside is the crux of this appeal.
Suffice it to say that where a finding of fact is made in favour of a litigant, the consequences of that finding must be manifest in the orders made in the judgment. The trial judge having made a finding that the Respondents exceeded their mandate ought to have made consequential order that the wrongful allocations be set aside being void. In the circumstances, the conclusions of the trial judge are indeed perverse and must be set aside, I allow the appeal and abide by the consequential orders in the lead judgment of my learned brother
TUNDE OYEBANJI AWOTOYE, J.C.A.: I have before now read in draft the Judgment of my learned brother TOM SHAIBU YAKUBU JCA. I am in total agreement with it. I too allow the appeal. I abide by the consequential orders including costs.
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Appearances
C.O. Erondu, Esq.,For Appellant
AND
E.N. Kanu, Esq.,For Respondent
