MR. O. C. OKOROAFOR & ANOR v. MRS. SALOMY N. MADUMERE
(2019)LCN/13751(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of August, 2019
CA/OW/177/2017
RATIO
REPLY BRIEF: CONTENT
Decidedly, where a Reply brief is necessary, it should be limited to answering new points arising from the Respondent?s brief. In other words, it is not proper to use a Reply brief to extend the scope of the Appellants? brief, or raise new issues not dealt with in the Respondent?s brief LONGE v. FIRST BANK PLC. (2010) 6 NWLR. (PT. 1189) 1 S. C. PER RITA NOSAKHARE PEMU, J.C.A.
REPLY BRIEFS: PURPOSE
The purpose of a reply brief, is to tackle new issues, or argument raised in the Respondents brief of argument, and not dealt with in the Appellants brief of argument.
Otherwise, a reply brief would be tantamount to a repetition of the Appellants main brief.
A Reply brief should not serve as a form of re-opening the Appellants case all over again.
Where it is coterminous in every respect with the Appellants? main brief, it should be discountenanced NWALI v. STATE (1991) 3 NWLR (PT. 182) 663; ESSEIN v. C. O.P. (1996) 5 NWLR (PT. 449) @ 489. PER RITA NOSAKHARE PEMU, J.C.A.
DEED: DEFINITION
A deed is a document which is, ex facie, signed sealed and delivered.
In a unanimous decision delivered by a full panel on 15th December 2017, the Apex Court in MOSES BENJAMIN & 6 ORS v. KALIO & KALIO jettisoned the requirement of registration as a precondition for the admissibility of land documents in evidence. It held that as far as they are properly pleaded, land documents are admissible as proof of title. PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. MR. O. C. OKOROAFOR
2. MR. OBASI NWANKWO Appellant(s)
AND
MRS. SALOMY N. MADUMERE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Abia State High Court holden at Umuahia, delivered on the 21st day of March 2016 in suit No. HU/89/2012, wherrby the Respondent was given judgment.
GIST OF THE CASE
The Respondent was Claimant in the Court below. He had brought a suit against the Appellants vide Writ of Summons and amended Statement of claim dated 16th of April 2012 and 18th of October 2014, but filed on the 20th of October 2014. ? Pages 1 ? 16 of the Record of Appeal.
The Appellants who were 1st and 2nd Defendants in the Court below in their amended statement of Defence filed on the 31st of October 2014 joined issues with the Respondent.
The Appellants counter claimed against the Respondent. He also filed a reply to the Amended Statement of Defence to counter claim. ? Pages 202 ? 203 of the Record of Appeal.
After the hearing of the case and at the close of the trial, the Court delivered its judgment on the 21st of March 2016.
The 2nd Appellant owned a piece and parcel of land situate at No. 3 Udi Street extension Umuahia. He owned another one on the left side of the land known as No 5A Udi Street Umuahia.
No 3 Udi Street extension land was acquired from his late father?s kinsmen ? James Arinodo of Umuosu.
On the 5th of July, 1990, the 2nd Appellant paid the sum of seven thousand naira to late James Ariwodo for the plot at No. 3 Udi Street Extension, Umuahia. The Appellant was issued a receipt signed by both parties.
The 2nd Appellant again paid for plot No 5A Udi Street extension to late Roland Ogidike. Again a purchase receipt was issued which both parties signed. The 2nd Appellant had been paying his annual rent to Rosanah Nwagwu?s son. He commenced farming on the two plots of land and continued to farm thereon, till 2000 when his family left the East, and he appointed one Mr. Francis Ngerem living in the next compound to oversee the land for him.
In March 2010, the 2nd Appellant was informed by Francis Ngerem that one elder Harry Agomuo (C.W.I.) from Ekeoha, and other persons encroached on the Appellants? land. That they said that they were the owners of the land.
The 2nd Appellant confronted CW1 who told him that he got photocopies of the title documents of the land at No. 3 Udi Street Extension, Umuahia, from his friend Ogbonna Madumere?s wife. (The Respondent in this appeal).
A meeting was fixed in the house of the 2nd Appellant, for the Respondent to produce the original title documents to No. 3 Udi Street Extension Umuahia.
On the date fixed for the meeting the Respondent brought photocopies of title documents with a building plan reading No. 1 Udi Street Extension, Umuahia.
CW1 demanded the sum of N100,000.00 from the 2nd Appellant as cost for clearing the bush and miscellaneous. He promised to hand over photocopies of the land documents to the 2nd Appellant. The 2nd Appellant paid the N100,000.00 to CW1 who issued him a receipt. CW1 handed over photocopies of the land documents to the 2nd Appellant.
CW1 then called the Appellant to tell him that he has been arrested, and detained at the Police State CID, over the land No. 3 Udi Street Extension, Umuahia, and requested that the 2nd Appellant takes him on bail. But on getting to the Police Station, the 2nd Appellant discovered that CW1 was arrested for another offence.
When CW1 was released, the 2nd Appellant reminded him of his promise to release the originals of the documents in respect of the property at No. 3 Udi Street Extension, Umuahia. Even though CW1 was given the sum of one thousand naira as transport to go bring the original documents, he never returned, neither did he produce them.
In his judgment, the Court below gave judgment to the Respondent.
The Appellants, dissatisfied with the judgment of the Court below have appealed same.
Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 28th of April 2016, encapsulating nine (9) Grounds of Appeal ? Pages 317 ? 325 of the Record of Appeal.
The Appellants distilled four (4) issues for determination from the Grounds of Appeal. Their brief was filed on the 6th of April 2018. It is settled by OKECHUKWU NWAEZE ESQ. The issues for determination are:
1. ?Whether the trial Court refusal to consider the Appellants reply on points of law on grounds that it contains embellishment on previous arguments and also raised new issues does not amounts to a miscarriage of justice and denial of fair hearing (Distilled from ground 1 of the Appellants notice and ground of appeal).
2. Whether Exhibits CD and CC were rightly acted and relied upon by the trial Court in holding that the respondent has proved her title to the piece of land traditionally called ?Ala Oji (Distilled from ground 4 of the appellants Notice and ground of appeal).
3. Whether the lower Court was in error when it failed to evaluate the evidence of the appellants and exhibits D3-D6 and arrived at a conclusion that there was no evidnce on which the appellant claim was hinged? (Distilled from grounds 6, 7 and 8 of the Appellants Notice and grounds of appeal)
4. Whether from the totality of the evidence adduced at the trial, the learned trial judge was right when he held that the respondent is entitled to the statutory right of occupancy over the piece or parcel of land traditionally called ?Ala Oji? and damages in the sum of N300,000.00 when it is glaring that the respondent failed to prove the identity of the disputed land and her title to the said land? (Distilled from grounds 2, 3, 5, 9 and 10 of the Notice and ground of appeal).
The Respondent?s brief was filed on the 22nd of June, 2018, but same was deemed filed on the 5th of March, 2019. It is settled by LADU N. MARTINS, ESQ. She had proffered four (4) issues for determination from the Grounds of Appeal. They are:-
1. ?Whether the refusal by the trial Court to consider the reply on points of law filed by the Appellants is justified under the law.
2. Whether the learned trial judge was right when he acted on Exhibit CD and CC.
3. Whether the trial Court properly evaluated the evidence of the Appellants adduced before it and the Exhibits tendered, before arriving to the conclusion that there was no evidence on which the Appellants claim was hinged.
4. Whether the Respondent has proved the identity of the land in dispute and her root of title and thus entitled to the statutory right of occupancy.”
On the 13th day of May 2019, the parties adopted their respective briefs of argument.
It is clear that the issues proffered for determination by the Respondent, is essentially an adoption of the issues for determination distilled by the Appellants, from their Notice and Grounds of Appeal.
I shall consider this Appeal based on the Appellants issues for determination
ISSUE NO. 1
Citing AMADI v. AMADI (2011) 15 NWLR (PT. 1271) 437@ 453 ? 454, the Appellants submit that it is necessary for a party to file a reply on points of law, when an opponent raises new issues in his written address or brief of argument. They submit that the Provisions of Order 30 Rule 16 of the Abia State High Court (Civil Procedure) Rules 2014, provides for the filing of a reply on points of law. They submit that what necessitated the filing of a reply on point of law by the Appellants, is that when they were served with the Respondent?s final written address, they discovered that new issues arose which needed to be replied to. That the Appellants were only responding to new issues raised by the Respondent.
They submit that failure of the Court below to consider the address of one of the parties vitiates the proceedings. That it amounts to denial of fair hearing.
Submit that the Court below was wrong in law when he refused to look at the Appellants? reply on points of law.
ISSUE NO 2
They submit that Exhibit CC tendered by CW1 is a sublease agreement dated 29th of November, 1976, between Stephen Umeh and Mrs. Salomy N. Madumere. That Exhibit CD, a land sale agreement between Nwagwu Nwaobiara and Stephen Umeh dated 20th December 1965 was pleaded as receipt for payment of money.
They submit that learned Counsel for the Respondent in his final address, relied on Exhibits CB, CC and CD, and argued that by these documents, the Respondent has established her title to the land.
Submit that what the Respondent relied upon to prove her title is a sublease agreement, and a sale agreement ? Exhibits CC and CD respectively. That the sub-lessor?s root of title is an unregistable lease dated 20th of December 1965.
That where parties to a land transaction intend to transfer title to land from a seller to a buyer, the appropriate document to prepare and execute is a Deed of assignment, and not a sublease, as a lease agreement is likened to a tenancy agreement between a landlord and a tenant. Submit that a lease for a term of years exceeding three years must he by Deed.
Submit that from the sublease agreement tendered by the Respondent, it shows ex facie, that she is a
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tenant and not the owner of the property at No. 3 Udi Street Extension, Umuahia, Abia State.
Argues that assuming (but without conceding) that Exhibit CC is a valid and legal document capable of transferring legal title in land, it is a registrable instrument and same was not registered. Therefore, they submit, same is not admissible to prove title.
Regarding, Exhibit CD, which the Court below also relied on, they submit that a sale agreement is admissible on evidence as receipt and not as a title deed. Citing OKOROAFOR v. UDENSI (2014) 15 NWLR (PT. 1431) 487@ 500 paragraph b-d.
They submit that there was no valid title document before the Court below to necessitate its declaration of title in favour of the Respondent. Submit that the Respondent traced her title to the unregistered lease agreement dated 20th December, 1965.
Citing GBINIJIR v. ODJI (2011) 4 NWLR (PT. 1236) 103 @ 128, they submit that there is the necessity to register an instrument affecting land, and that failure to register same is fatal to the case of the Respondent.
ISSUES NO 3 AND 4
Submit that the Court below failed to consider and evaluate the evidence and Exhibits relied on by the Appellants in proving their case.
They submit that Exhibit D1 shows that the 2nd Appellant is the owner of the land situate at No. 3 Udi Street Extension, Umuahia, and indeed the land known as No. 5A Udi Street Umuahia. That the Court ignored in totality, the contents of Exhibits D3 ? D6, and evaluate same. That when the Court below declared that the evidence of DW2 and DW3 was contradictory and that Exhibit D3 ? D6 was contradictory, it failed to state how.
They submit that the Respondent failed to identity properly the land in dispute.
Submit that it is the duty of the Respondent to prove the identity of the land in issue. Exhibit CB, tendered by the Respondent did not identity properly the land in dispute. That Paragraph 3 of the Respondent?s amended statement of claim w
