NNAJI A. OBANYE V. EMMANUEL MBAMALU (2012)

NNAJI A. OBANYE V. EMMANUEL MBAMALU

(2012)LCN/5585(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of July, 2012

CA/E/384/2007

RATIO

LAND LAW: DUTY OF THE COURT WHERE THERE IS A CLAIM FOR TRESPASS AND INJUNCTION

It is trite that where there is a claim for trespass and injunction, title to the land involved is put in issue and this makes it incumbent on the trial court to consider the issue of title to the land or exclusive possession to it. The resultant consequence is that the burden of establishing by the preponderance of evidence a claim to the land in dispute rest with the plaintiff. Thus it is for the plaintiff to prove his case on his evidence and he will fail, if he does not succeed in establishing his claim before the court. See NZEKWU VS NZEKWU (1989) 2 NWLR (PT 104) 373. OKORIE VS UDOM (1960) SCNLR 326; AMAKOR VS OBIEFUNA (1960) SCNLR 326; KODILINYE VS ODU (1935) 2 WACA 336 EBOHA VS ANAKWENZE (1967) NMLR 140, and UDIH VS. IDEMUDIA (1998) 57 LRCN 3184. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

COURT: DUTY OF JUDGES IN RELATION TO RAISING ISSUES WHICH DO NOT FLOW FROM THE PLEADINGS

Judges as umpires in the temple of justice cannot raise issues for the parties if the issues do not flow from the pleadings filed. It is therefore imperative for a trial judge to conduct a case in such a manner that at the end of the hearing he will write a judgment which is authentic decision based on the evidence he received and recorded. It will amount to a fundamental judicial vice for a trial court to take into account matter which it ought not to, or import evidence that are alien to the proceedings before it. This will certainly occasion a miscarriage of justice. It is therefore not allowed for a trial court to depart from the case pleaded by the parties to found judgment on matters which are neither pleaded nor constitute issues as settled in the pleading. See IBANGA VS DEFEK-SOLAR (1986) 4 SC 141; LEMU VS ALLI-BALOGUN (1975) 3 SC 169 and NDIC VS. ORANU (2001) FWLR (PT.82) 1974. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

PLEADINGS: BINDINGNESS OF PLEADINGS

It must therefore be reiterated that as the parties are bound by the pleadings, so the courts are also bound by the settled pleadings of the parties. The court can only therefore adjudge a case only upon the evidence given in accordance with the pleadings of the parties. Courts are to all intents and purposes precluded from departing from the pleadings of the parties to set up a case other than that pleaded by them. See CHUMA VS AMADI (2003) FWLR (PT 145) 696 ALLI VS HUSSAINI (2003) FWLR (PT 138) 1398; AWARA VS. ALALIBO (2003) (PT.144) 415 at 470 and PUNCH NIG. LTD. VS. EYITENE (2002) FWLR (PT.125) 678.

It is a fundamental principle that parties are bound by their pleadings. It is not only the parties but also the courts are bound by the pleadings of the parties. In the case of African Continental Seaways Ltd Vs Nigeria Dredging Road and General Works Ltd (1972) 5 SC 235 at 250, this court held:-

“The court itself is as much bound by the pleadings of the parties as they are bound themselves. It is not part of the duty or function of the court to enter upon inquiry with the case before it other than to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. Indeed. the court would be acting contrary to it’s own character and nature if it were to pronounce upon any claim or defence not made by the parties”‘

“A court cannot and ought not to evolve a case for either party and proceed to give judgment thereon contrary to the case of the parties before it. See Commissioner for Works Benue State & Anor Vs Devcom Development consultants Ltd & Anor. (1988) 3 NWLR (PT.83) 407; Ochonma Vs Ashiri Unosi (1965) NMLR 321 at 323; Nigerian Housing Development society Ltd & Anor Vs Yaya Mumuni (1977) 2 SC 57; ACB Ltd Vs Att. Gen. of Northern Nigeria (1967) NMLR 231. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

JUDGMENT: WHAT CONSTITUTES A GOOD JUDGMENT

I need add by the way that a good judgment should of necessity, set out the nature of the action before the court and the issues in controversy; review the cases for the parties; consider the relevant laws raised and applicable to the case; make specific findings of fact and conclusion; and give reasons for arriving at those decisions. See CIROMA VS ALI (1999) 2 NWLR (PT 590) 317; IDAKWO VS NIGERIAN ARMY (2004) 2 NWLR (PT 857) 249 and UBA PLC VS S.A.F.P.U (2004) 3 NWLR (PT 861) 516. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

NNAJI A. OBANYE
FOR HIMSELF AND ON BEHALF OF THE MEMBERS OF THE MGBELEKEKE FAMILY OF ONITSHA Appellant(s)

AND

EMMANUEL MBAMALU Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the Onitsha Judicial Division of the High Court of Justice, Anambra State, presided over by Hon. Justice Vin. Agbata and delivered on the 20th day of June 2009 in Suit N0. O/234/2002 (Nnaji A. Obanye Vs Emmanuel Mbamalu) wherein the said Suit was dismissed by the learned trial judge for lack of merit.
The Appellant in this appeal had as plaintiff filed a Suit in the said High Court hereafter referred to as the (lower court) on the 22-4-2002 wherein he claimed as follows:-
(i) Possession of 58 Sanniez Stre et and 24 Ezenwa Street, Onitsha.
(ii) N3000,000 general damages.
(iii) Perpetual injunction restraining the defendant, his agents and privies singly or in union howsoever from entering or remaining on 58 Sanniez Street and 24 Ezenwa Street, Onitsha without the consent of the plaintiff.
Subsequently in the 2nd further amended statement of claim dated 28-3-2008 filed on 31-3-08, the claim read thus in paragraph 12 thereof:-
(12) Whereof the plaintiffs claim is as follows:-
(i) Possession of 24 Ezenwa Street, Onitsha.
(ii) N2000,000.00 general damages
(iii) Perpetual Injunction restraining the defendant his servants agents and privies singly or in any union however from entering or remaining on 24 Ezenwa Street, Onitsha without the consent of the plaintiff’s. The summary of the appellant’s case is that they are the Mgbeleke family of Onitsha and some 300 years ago their ancestors settled on a large portion of land in Onitsha popularly called ‘OTU’ or ‘Onitsha Waterside’ which includes 58 Sanniez Street and 24 Ezenwa Street Onitsha. The said portion of land was subjected to kola tenancy according to Onitsha native law and custom by the Mgbeleke family wherein possession and occupation is for the life of the tenant in question with the express consent of the aforesaid family. In consideration of kola paid or given by a prospective tenant, the Mgbeleke family will give their consent orally or in writing for the use and occupation of their land by the said tenant at their will and pleasure. Such tenant is not allowed to transfer his tenancy to a third party without the consent of the Mgbeleke family and failure to do so will subject the tenancy to being deemed forfeited or abandoned to the family. Their last kola tenant was one Christoper Onuorah Obianwu who was recently discovered to have died and survived only by his wife, one Mrs Philomena Nwanneka Obianwu who transferred N0. 24 Ezenwa Street to the defendant (now Respondent) since 2007 without the prior consent of the Mgbeleke family. The Respondent on the other hand claimed that he is the Landlord/owner of N0. 24 Ezenwa Street, Onitsha by virtue of an irrevocable Power of Attorney granted to him by Mrs Philornena Nwanneka Obianwu on 27th December 2000.
Pleadings were subsequently filed and exchanged by the parties which pleadings were subjected to series of amendments. The appellant’s current pleadings is the 2nd amended statement of claim dated 28-3-2008 and filed 0n 31-3-2008, (See page 20 to 21 of the Record) while that of the Respondents is the amended statement of defence dated 9-6-2008 and filed on the same date. (See pages 31 to 32 of the Record).
Hearing on the Suit commenced in the lower court on the 16-10-2008 and the parties on record testified as sole witnesses in support of their cases and thereafter their counsel filed and adopted written address on their behalf in accordance with the rules of the High Court of Anambra State.
In a judgment delivered on the 22-6-2009 the lower court in dismissing the Suit held inter alia as follows: “With the above statement of the law in view. I have carefully considered the case which was presented by the plaintiffs. I have failed to see sufficient evidence, on the face of the record on the basis of which I can agree with the plaintiffs that the defendant is their tenant. This Suit therefore has no merit. It is dismissed. No order as to costs”.
Being dissatisfied with the said judgment, the appellant filed a Notice of Appeal dated 2-8-2009 and filed on 3-8-2009. The said notice contain five grounds of Appeal which shorn of their particulars reads as follows:-
GROUND ONE: Error in Law:
That the judgment of the lower court is perverse and prejudicial to the appellant in that obvious and proved facts were discountenanced or over looked, some pieces of evidence misrepresented or distorted while others are strangers to the trial and this led to a grave miscarriage of justice.
GROUND TWO: Error in Law:
The learned trial judge erred in law in failing to pay due attention and regard to the rule of law that parties are bound by their pleadings which rule also binds the court and led to miscarriage of justice.
GROUND THREE: Non direction in law and fact:
The learned trial judge erred in law and fact in failing to properly direct himself as to the onus of proof on a party who relies on traditional history in proof of his claim for possession and injunction and who is not required to establish further acts of ownership as laid down in Balogun vs Akanji (1998) 1 NWLR (PT 70) 301 at 314 and ONYIDO VS AJEMBA (1994) 4 NWLR (PT 184) 203 at 224.
GROUND FOUR: Misdirection in Law:
It is a very serious misdirection in law for the learned trial judge to hold that he did not “agree with the plaintiffs that the defendant is their tenant” which is contrary to the case put forward by the Appellant.
GROUND FIVE: – Omnibus
The judgment is against the weight of evidence”.
Subsequently, in compliance with the Rules of this court, parties filed and exchanged their briefs of argument. The appellant’s brief of argument settled by A.A. Ononye Esq is dated 19-11-2009 and filed on 23-11-2009, the Respondent’s brief of argument settled by C.F. Ohajaka Esq is dated 18-2-2010 and filed on 25-2-2010 but deemed properly filed and served on 12/7/2010. At the hearing of the appeal on 28-5-2012 parties duly adopted and relied on their respective briefs of argument.
In the Appellant’s brief of argument five issues were formulated for determination as follows:-
1. Given the pleaded facts and evidence before the lower court, is the judgment of the lower court not perverse and prejudicial to the appellant in so far as obvious and proven facts were discountenanced or overlooked and others distorted or misrepresented while evidence of unpleaded facts founded the judgment.
2. Whether it was not a gave error in law on the part of the trial court to have neglected or failed to insist that it, the court and the parties must be bound by the case of ownership pleaded in paragraphs 2, 3, 6 of the defence.
3. Given the decision in Balogun Vs Akanji (1988) 1 NWLR (PT 10) 301 at 314 which was followed in Onyido Vs Ajemba (1994) 4 NWLR (PT 184) 203 at 224 E, did the appellant not satisfactorily discharge the onus of the proof of his ownership of the land in dispute through traditional history copiously and graphically pleaded and not even denied, challenged or contradicted.
4. Was it not a serious misdirection on the part of the learned trial judge when contrary to the case of the appellant that the respondent was not his tenant, he held that he could not “agree with the plaintiffs that the defendant is their tenant”.
5. On the balance of probabilities and preponderance of legal evidence, whether the appellant’s case does not far outweigh the Respondent’s.
For the Respondent, two issues were distilled for determination as follows:-
1. Whether the appellant satisfactorily proved his case on the state of pleadings and evidence before the trial court.
2. Whether the judgment of the trial court was perverse and borne out of distorted, or unpleaded facts and evidence”.
I have carefully perused and reviewed the issues raised by the parties in their briefs of argument which shows that the five issues as formulated by the appellant are fully encapsulated in the Respondent two issues. However to meet the justice of the case:- I hereby adopt the appellant’s five issues for the consideration of this appeal.
ISSUES NO 1, 3 AND 5
Dwelling on these issues, A.A. Ononye of counsel for the appellant after reviewing the case of the parties, submitted inter alia that though the learned trial judge found that based on the law that he who asserts must prove, the appellant had failed to prove that the Respondent was his tenant when on the contrary, the appellant’s case was that the Respondent is not his tenant, neither is Philomena Nwanneka Obianwu as shown in paragraphs 10 and 11 of the statement of claim. He added that the learned trial judge arrived at his decision without the least effort in evaluating and ascribing value to the evidence of the appellant and in fact did not make any reference to it contrary to the decision of this court in MBANEFO VS MOLOKWU (2009) 11 NWLR 431 at 459 on the two functions of a trial judge which are the assessment and evaluation of evidence in order to determine material evidence and on which side of the scale of tilts.
Learned counsel also listed six findings of facts made by the learned trial judge which were contrary to the legal evidence adduced by the parties but upon which he based his judgment, when infact on balance of probabilities and preponderance of evidence, the case of the appellant far outweighs that of the Respondent.
On behalf of the Respondent, C.F. Ohajaka of counsel contended that he who asserts must prove but the appellant in his pleadings embarked on traditional history/evidence to establish ownership of N0. 24 Ezenwa Street, Onitsha without tracing same to himself. He also pleaded acts of possession through an alleged last tenant (Christopher Onuorah Obianwu) without knowing when the said Christopher became a kola tenant.
Learned counsel added that the appellant under cross examination could not mention even one of the principal members of his family whom he claimed to have entered into a kola tenancy agreement with Christopher Obianwu, neither did he state who their kola tenant was or the period when the kola tenancy was created or evidence of ‘or type of payment of tributes. Hence the finding of the learned trial judge that failure to lead evidence on material facts is fatal to the appellant’s case.
Learned counsel further submitted that the appellant also failed to lead evidence of exclusive possession or better title than the respondent in order to succeed especially where the respondent is in recent exclusive dejure and de facto possession of the land in dispute. He referred to the cases of UFOMBA VS AHUCHOGU (2003) 45 CNJ 231 at 245 and OGUNDE VS OGOMU (1972) 4 SC 195.
Furthermore, he contended that a party relying on evidence of traditional history to prove title must plead his root of title and must also plead and give evidence as to who his ancestors were and how they came to own and possess the land which eventually passed to him. He added that where the line of succession is not satisfactorily traced or that it has gaps or mysterious linkages or issues which are not established, such link of succession shall be rejected. He cited EJEM VS OFIA (2000) 7 NWLR (PT 666) 672 and MOGAJI VS CADBURY (NIG.) LTD (1985) 2 NWLR (PT 7) 393.
The appellant he argued, did not trace his roof of title from Mgbeleke or show an unbroken chain of his ancestors from Mgbeleke until the land devolved to him and this is fatal to his proof of roof of title.
It is trite that where there is a claim for trespass and injunction, title to the land involved is put in issue and this makes it incumbent on the trial court to consider the issue of title to the land or exclusive possession to it. The resultant consequence is that the burden of establishing by the preponderance of evidence a claim to the land in dispute rest with the plaintiff. Thus it is for the plaintiff to prove his case on his evidence and he will fail, if he does not succeed in establishing his claim before the court. See NZEKWU VS NZEKWU (1989) 2 NWLR (PT 104) 373. OKORIE VS UDOM (1960) SCNLR 326; AMAKOR VS OBIEFUNA (1960) SCNLR 326; KODILINYE VS ODU (1935) 2 WACA 336 EBOHA VS ANAKWENZE (1967) NMLR 140, and UDIH VS. IDEMUDIA (1998) 57 LRCN 3184.
The appellant in this Suit claims for possession, damages and injunction while the Respondent on the other hand asserted his ownership of the land in dispute i.e. (N0 24 Ezenwa Street, Onitsha). That no doubt puts the issue of title to the land in the front burner for which the court must resolve. Now the contention of the appellant’s counsel is that by preponderance of evidence, the appellant has proved his case by traditional history to justify the judgment of the lower court being entered in his favour but contrarily the learned trial judge collated facts and issues not pleaded or given in evidence to hold that the appellant did not prove his case. On the other hand, the Respondent’s counsel is of the stance that the appellant totally failed to plead or adduce satisfactory evidence to prove his root of title or how Christopher Obianwu came to be his tenant and this makes his case to lack merit.
At this stage, it will be appropriate to reproduce the relevant paragraphs of the parties averments in their pleadings for proper appreciation of the issues at stake. For the appellant, paragraphs 1 to 11 of the 2nd further amended state of claim is herein below reproduced. See (pages 25 to 26 if Record).
1. As owner grantor and landlord of 24, Ezenwa Street Onitsha (within jurisdiction) under the Onitsha native Law and custom, the plaintiff who also sues in a representative capacity is entitled to the right or certificate of occupancy relating or pertaining thereto.
2. The aforesaid property is subject to the Mgbeleke Family of Onitsha kola tenancy of the Onitsha Native Law and Custom whose main characteristic nature is that possession and occupation thereunder is for the life of the tenant and with the express consent of the plaintiff s Family.
3. The defendant is a total stranger to both Onitsha and the plaintiff’s Mgbeleke Family of Onitsha.
4. By a settlement some 300 years ago and a sustained ownership and possession, the plaintiff’s family through their ancestors, namely, Ugbe and Ekeke the first settlers, Okwuorah and Dagbue of the next generation; followed by Onwuta Okamkposi, Obanye Ojinnaka, Eziechina and Ofili; the Onwuta Osuma and others, and Abomeli Ijeagwo; then Ozonma Louis Obidi Onwuta and others, then the next generation being Ben, Patrick, Maduka, Sunday Ononye, John Ononye (the late first plaintiff) and others, have been and are the owners in possession by themselves, their privies, licensees, and tenants under the Onitsha native law and custom aforesaid, of a large portion of the area of Onitsha popularly known as and called ‘out’ or ‘Onitsha Waterside’ which includes both 58 Sanniez Street and 24, Ezenwa Street, Onitsha.
5. Having satisfied the kola tenancy requirements in respect of 58 Sanniez Street, Onitsha, the defendant is now the plaintiff s kola tenant in respect thereof.
6. Plaintiff s Family have from the inception of their said ownership by settlement fashioned out and maintained a form of tenancy notoriously and legally recognized and known as the Mgbelekeke Family of Onitsha Kola Tenancy whereby in consideration of kola paid and or given by a prospective tenant to the plaintiff s Family, they, the plaintiff s Family give their consent orally or in writing for only the mere occupation and use of their land by the said tenant at the Family’s will and pleasure. The Nsukka District Officer’s Memorandum No. NS: I5/1930 of 20/3/31 to the Resident Onitsha Province bears out the system. A certified true copy thereof is hereby pleaded.
7. Occupation and use of any of the plaintiff s kola tenancy tenure property without the plaintiff’s Family’s prior consent orally or in writing is invalid and trespassory, the length of time of such trespass notwithstanding.
8. It is the duty of an in-coming tenant to first satisfy the plaintiff’s Family and the person transferring a kola tenancy property to him has the capacity to do so, that is, that his transferor had been in occupation of the property with the valid consent orally or in writing of the plaint’s Family
9. A kola tenant who purports to transfer his tenancy to another without, prior to the transfer, introducing his transferee to the plaintiff s Family for the consent is deemed to have forfeited or abandoned his tenancy to the plaintiffs and the transferee gets nothing.
10. The Family’s last kola tenant was one Christopher Onuorah Obianwu who was lately discovered to have since died, survived only by his wife, one Mrs. Philomena Nnwanneka Obianwu who is said to be resident in London. Having not obtained the necessary consent of the plaintiff’s Family, the said Mrs. Philimena Nwanneka Obianwu is not a kola tenant of the Family and cannot transfer the land in dispute to the defendant or any other person.
11. The defendant now purports to have obtained possession of 24, Ezenwa Street, Onitsha since 2001 but without the prior consent of the plaintiff s Family and has been using and enjoying the same to the detriment of the plaintiff s Family who have thereby suffered loss and damages.
For the Respondent, paragraph 2 to 10 of the amended statement of defence reads as follows:-
1. Paragraph 1 of the statement of claim is false and hereby denied. In reply thereto, the defendant is the landlord/owner of 24 Ezenwa Street, Onitsha. The defendant came into ownership of the said N0. 24 Ezenwa Street, Onitsha by virtue of irrevocable power of attorney granted him by Philomena Nwanneka Obianwu on 27th December 2000.
2. The defendant shall at the trial rely on a registered document with Anambra State Government which confers interest, ownership and title on him over No 24 Ezenwa Street, Onitsha. The said Power of Attorney was registered as an instrument at Lands Registry, Awka as N0. 54 Volume 54 page 168.
3. Paragraph 2 of the State of Claim is hereby denied and the plaintiffs are put to the strictest proof thereof. The N0. 24 Ezenwas Street, Onitsha belongs to the defendant.
4. The defendant’s mother is a native of Onitsha, paragraph 3 of 2nd further amended statement of claim is false and is hereby denied.
5. Paragraph 4 thereto may be the genealogical history of the plaintiffs but that does not make them owners of 24 Ezenwa Street, Onitsha. N0. 24 Ezenwa Street, Onitsha is neither in Out or Water Side but in Okoakpu, Onitsha and belongs to the defendant.
6. N0. 58 Sanniez Street, Onitsha as mentioned inparagraphs 4 and 5 are not the subject matter of this suit. The plaintiffs in their amendment removed the issue of N0. 58 Sanniez Street, Onitsha from this suit.
7. The defendant denys paragraphs 6, 7, 8 and 9 of the statement of claim and further aver that they have no nexus and/or concerns with N0. 24 Ezenwa Street. Onitsha.
8. The defendant denies paragraphs 10 thereto and aver further that he has not at any material point in time tenancy relationship with the plaintiffs over N0. 24 Ezenwa Street, Onitsha. Philomena Nwanneka Obianwu granted the defendant Irrevocable Power of Attorney over N0. 24 Ezenwa Street, Onitsha which the defendant also registered at Lands Registry, Awka.
9. That paragraph 10 thereto is also herein denied. The plaintiffs who purport to be the original landlord of N0. 24 Ezenwa Street, Onitsha does not know the defendant before the institution of this matter except through information from an informant. They also do not know when he was granted Power of Attorney the said N0. 24 Ezenw a Street. Onitsha.
In this regard it will be apposite to revisit the judgment of the lower court as found in pages 57 to 58 of the Record. It is a two page judgment subjected to absolute brevity. It consists of seven paragraphs and the first four paragraph relates to the preliminaries and facts of the case while the last three paragraphs contain the evaluation/reasoning and conclusion. I am minded to reproduce the last three paragraphs. It reads thus:-
“At the end of the parties respective cases, both counsel addressed court. I have considered the pleadings of the parties together with the evidence adduced with respect thereof. I have also considered the respective submissions of counsel. The facts of the case are very simple. The defendant purchased the land in dispute from one Philomena Nwanneka Obianwu. That was sometime in the year 2000. Thereafter, he erected a building thereon. The plaintiffs then instituted this suit claiming that one Christopher Onuorah Obianwu, the father of the said Philomena Nwanneka Obianwu was their kola tenant with respect thereof.
It is, therefore, a matter of proof, the law being that he who avers has the onus to prove. A party who relies on a fact must prove that fact by relevant and necessary evidence. This is the obvious implication of Section 135 Evidence Act. See also Ferdinand George v. United Bank for Africa Plc. (1972) 8-9 s.c. 264 @ 280; Fajemirokun Vs. C.B. (C.L.) Ltd. (2002) 10 NWLR (Part 774) 95 @ 113 – 114 Paragraphs H-A.
With the above statement of the law in view, I have carefully considered the case which was presented by the plaintiffs. I have failed to see sufficient evidence, on the fact of the record, on the basis of which I can agree with the plaintiffs that the defendant is their tenant. This suit, therefore, has no merit. It is dismissed. No order as to cost”. (underlining for emphasis).
The last paragraph above is of great interest and significance as it seems to be the centre piece of the decision reached by the learned trial judge. The underlined portion matters most and I am minded to reproduce it again separately. It reads:-
“I have failed to see sufficient evidence on the face of the record, on the basis of which I can agree with the plaintiffs that the defendant is their tenant. This suit therefore has no merit. It is dismissed”.
The appellant’s counsel had argued vigorously that they never pleaded or gave any evidence to the effect that the defendant was their tenant and it was wrong for the learned trial judge to have imported into the case what was not there and use it as the basis for the judgment resulting in the dismissal of the appellant’s case.
I have carefully and meticulously perused the record of appeal with particular emphasis on the parties pleadings and evidence and I could hardly see where either the appellant or the Respondent stated that “the defendant was a tenant of the plaintiff’. Rather the appellant in his 2nd further amended statement of claim filed on 31-3-2008 averred clearly that the defendant is not their tenant. This is in paragraphs 3, 10 and 11 and they read thus:-
1. The defendant is a total stranger to both Onitsha and the plaintiff’s Mgbelekeke Family of Onitsha.
2. The Family’s last kola tenant was one Christopher Onuora Obianwu who was lately discovered to have since died, survived only by his wife, one Mrs. Philomena Nnwanneka Obianwu who is said to be resident in London. Having not obtained the necessary consent of the plaintiff’s Family, the said Mrs. Philomena Nwanneka Obianwu is not a kola tenant of the Family and cannot transfer the land in dispute to the defendant or an)’ other person.
3. The defendant now purports to have obtained possession of 24, Ezenwa Street, Onitsha since 2001 but without the prior consent of the plaintiff s Family and has been using and enjoying the same to the detriment of the plaintiff’s Family who have thereby suffered loss and damages.
Furthermore in paragraphs 17 and 18 of the appellants deposition as a witness he stated as follows:-
17. “The defendant who was not introduced to the family by the last kola tenant of the property of anybody at all has since 2001 or there about surreptitiously assumed possession of the land in dispute without the consent of the family.
18. He has been collecting and appropriating to himself rents from the tenants thereon to the detriment of my family”.
Judging from what have been reproduced above from the pleading and evidence of the appellant, I seriously look askance at the source of the finding of the learned trial judge that there is no sufficient evidence for him to agree with the appellants that the respondent is their tenant. Curiously enough, it was the ground on which the suit was dismissed.
I therefore, cannot but agree with the submission of the learned counsel for the appellant that there being nothing in the pleading or evidence of the appellant to suggest that he claimed that the respondent was his tenant, it is a serious misdirection for the lower court to find that he was not.
Judges as umpires in the temple of justice cannot raise issues for the parties if the issues do not flow from the pleadings filed. It is therefore imperative for a trial judge to conduct a case in such a manner that at the end of the hearing he will write a judgment which is authentic decision based on the evidence he received and recorded. It will amount to a fundamental judicial vice for a trial court to take into account matter which it ought not to, or import evidence that are alien to the proceedings before it. This will certainly occasion a miscarriage of justice. It is therefore not allowed for a trial court to depart from the case pleaded by the parties to found judgment on matters which are neither pleaded nor constitute issues as settled in the pleading. See IBANGA VS DEFEK-SOLAR (1986) 4 SC 141; LEMU VS ALLI-BALOGUN (1975) 3 SC 169 and NDIC VS. ORANU (2001) FWLR (PT.82) 1974.

In UDENGWU VS. UZUEGBU (2003) FWLR (PT.179) 1173 the Supreme in deciding what fate awaits a matter where the trial court misapprehended the case presented by parties for adjudication held at pages 1186 to 1187 as follows:-
It is a fundamental principle that parties are bound by their pleadings. It is not only the parties but also the courts are bound by the pleadings of the parties. In the case of African Continental Seaways Ltd Vs Nigeria Dredging Road and General Works Ltd (1972) 5 SC 235 at 250, this court held:-
“The court itself is as much bound by the pleadings of the parties as they are bound themselves. It is not part of the duty or function of the court to enter upon inquiry with the case before it other than to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. Indeed. the court would be acting contrary to it’s own character and nature if it were to pronounce upon any claim or defence not made by the parties”‘
“A court cannot and ought not to evolve a case for either party and proceed to give judgment thereon contrary to the case of the parties before it. See Commissioner for Works Benue State & Anor Vs Devcom Development consultants Ltd & Anor. (1988) 3 NWLR (PT.83) 407; Ochonma Vs Ashiri Unosi (1965) NMLR 321 at 323; Nigerian Housing Development society Ltd & Anor Vs Yaya Mumuni (1977) 2 SC 57; ACB Ltd Vs Att. Gen. of Northern Nigeria (1967) NMLR 231.
In the case at hand, since the trial court had misapprehended the case presented by the parties to adjudicate on an issue not placed before it and the Court of Appeal had fallen into the same error by affirming the decision of the trial court, the inevitable order to make is one of retrial”
In the instant case I find the judgment of the lower court to be perverse having run counter to the evidence adduced by the parties and consequently led to an improper evaluation of the case as presented for determination. In the result I resolve issues 1, 2 and 4 in favour of the appellant.
On Issue NOs 3 and 5, having resolved that the judgment of the lower court was perverse and occasioned miscarriage of justice. It will amount to an unsolicited and futile academic exercise to embark on the consideration of the above issues.
I need add by the way that a good judgment should of necessity, set out the nature of the action before the court and the issues in controversy; review the cases for the parties; consider the relevant laws raised and applicable to the case; make specific findings of fact and conclusion; and give reasons for arriving at those decisions. See CIROMA VS ALI (1999) 2 NWLR (PT 590) 317; IDAKWO VS NIGERIAN ARMY (2004) 2 NWLR (PT 857) 249 and UBA PLC VS S.A.F.P.U (2004) 3 NWLR (PT 861) 516.
In the circumstance, I hold that this appeal is meritorious and is hereby allowed. The judgment of the lower court dismissing the appellant’s claim is hereby set aside based on the authority of UDENGWU VS
UZUEGBU Supra. It is ordered that the Suit N0 O/234/2002 be sent back for retrial before another judge who shall give it a priority hearing.
I make no order as to costs.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I was privileged to read in draft the judgment of my learned brother Oseji, JCA just delivered. My learned brother has considered and satisfactorily resolved the issues for the determination of the appeal.
I agree with his reasoning and conclusion that the appeal has merit and ought to succeed. It is hereby allowed. The judgment of the lower court dismissing the appellant’s claim delivered by Agbata, J. on 20/6/2009 in suit No O/234/2002 is hereby set aside. The suit is remitted to the Chief Judge of Anambra State to be assigned to another judge for retrial.
I abide by the order as to costs.

A.O. LOKULO-SODIPE, J.C.A: I agree.

Appearances

A.A. OnonyeFor Appellant

AND

C.F. Ohajaka Esq.For Respondent