OSUJI V. EKEOCHA
In the Supreme Court of Nigeria
Friday, July 10, 2009
Case Number: SC.390/2002
NIKI TOBI, JUSTICE, SUPREME COURT
ALOMA MARIAM MUKTAR, JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI, JUSTICE, SUPREME COURT
OLUFUNIOLA OYELOLA ADEKEYE, JUSTICE, SUPREME COURT
(DELIVERED BY O.O ADEKEYE JSC)
The Appellant, Clifford Osuji as the 2nd Plaintiff in the High Court of Imo State, Owerri Judicial Division, sued the deceased father of the Respondent Ukachi Maxwell Ekeocha for the reliefs set out in paragraph 35 clauses (a-f) of the Further Amended Statement of claims as follows:–
(a) ‘Declaration of title to all that piece of land which is the home of Umuopara Nwanyiri or Nwanyiri family and called ‘Uhe Umuopara Nwanyiri’ and which lies at Ekeonunwa Street, Owerri Amawon Compound, Owerri in Owerri Judicial Division and shown in Plaintiffs plan No.E/GA/343/74.
(b) A declaration that the defendant is the customary tenant of the Plaintiffs in the said land.
(c) A declaration that by denying the plaintiffs title in respect of the said land and behaving in a manner inconsistent with the proprietary interest of the Plaintiffs, the defendant has forfeited the customary tenancy.
(d) An order of court for the defendant and members of his family to move out of the building they occupy in the said land and relinquish possession of same to the Plaintiff(sic)
(e) Alternatively an order of Court restraining the defendant to the occupation only of the storey building in the land shown in the Plaintiffs plan as ‘storey building by the defendant’.
(f) N1,000 (One Thousand Naira) being balance of the proceeds of the sale of the plaintiffs ‘Isi-Ezi’ land and which the 2nd Plaintiff gave the for safe keep’
The suit which was filed in the High Court of Justice Owerri Judicial Division in 1973 had Macaulay Osuji and Clifford Osuji as Plaintiffs and Ukachi Maxwell Ekeocha as Defendant. By the time the Plaintiffs went on appeal against the decision of the Trial Court Macaulay Osuji died leaving Clifford Osuji as the sole Respondent. Likewise Maxwell Ukachi Ekeocha was substituted with his son Nkemjika Ekeocha, the Respondent in the appeal on his death. Parties went to trial in the matter in 1992 on their further Amended Statement of claims and the Amended Statement of Defence. The Plaintiffs called four witnesses and the Defendant two witnesses. The case of the parties in brief is that the two Plaintiffs before the trial Court Macaulay and Clifford Osuji were the two male descendants of Umu Nwanyiri family of Amawon in Owerri Nchise in Owerri town, while the Defendant Maxwell Ukeachi Ekeocha belonged to the family of Ekeocha from Naze Olohe. His mother was one Ngbafor Nwanyiri a men1ber of Umu Nwanyiri family of Amawon. She married Ekeocha from Naze and her offsprings by Owerri Native Law and Custom are referred to as Nwa-Nwa.
When her husband died, Ngbafor relocated to Owerri. When she died Maxwell Ekeocha now deceased and father of the present Respondent went to live with the family of Onyeneke Nkwocha Ekezie. He later moved from there to live with the wife of Igwe Opara Nwanyiri. The two Plaintiffs/Appellants were then very young and at school when Igwe Opara Nwanyiri died without a male issue. They both were the only surviving n1ale members of
the Opara Nwanyiri family. They automatically inherited the ‘OHE Umunwanyiri, the area now in dispute according to Owerri Native Law and Custom. The Respondents father, -deceased Maxwell Ekeocha was then an adult, and he became the closest relation of the Appellants. The property in dispute the ORE UMUOPARA NWANYIRI’ had been the permanent homestead of the Nwanyiri family since the village of Amawon settled in that part of Owerri for over one hundred years. No. 17 Ekeonunwa is the property now located on the land in dispute. Maxwell Ekeocha in his lifetime had access to the land through Igwe Nwanyiri, and when the Igwe died with no male issue surviving him he was still living in the OHE NWANYIRI. He erected a storey house and a bungalow on the land. The grouse of the Appellant is that Maxwell Ekeocha is not a member of the Opara Nwanyiri family and cannot lay any claim to any property belonging to the family.His mother a member of the Umu Nwanyiri family married outside. She decided to reside in the parents house – but her children are Nwa-Nwa who are not entitled to the property of their maternal grandfather. Furthermore none of the brothers of Maxwell intermeddled with the Appellants family property. They bought and developed their property outside the ‘OHE UMUOPARA NWANYIRI’. The Appellants contended that he took advantage of their tender age to infiltrate and build on their family property. The Appellants claimed UMUOPARA NWAYIRI by way of inheritance to which they were entitled to exclusive possession according to Owerri Native Law and Custom. They became the only surviving elders in the family. The Respondent claimed the disputed property through his father Maxwell. He claimed to be a part of the family. His father Maxwell developed the ‘Obi’ of the family into a proper family house. He built on the disputed land and did everything to prevent the Appellants from erecting their houses on the land. He sold the Isi-Ezi another area of the family property together with Clifford Osuji though he refused to return N1000, out of the proceeds of sale. He regarded the amount as his share. Maxwell also laid claim to exclusive
ownership of OHE UMUOPARA NWANYIRI. He was selling and alienating landed properties of Opara Nwanyiri family. The Appellants referred the matter to a Native Arbitration. Maxwell, the Respondents father made out a case of joint ownership of the family property before a Native arbitration headed by Eze Njemanze. He later accepted the decision of the Arbitration that he was to return the land in dispute to the Appellants, while he requested to be allowed to keep the storey building on the land in dispute. He later reneged on his words, adhered to his claim of joint family property and continued to manifest his bid to disinherit the Appellants and their section of the family. He expended money to reconstruct the family property. The Respondent claimed the three houses built on OHE UMUOPARA NWANYIRI by his father. Maxwell was made an ‘OHA’, he became head of the family. In the claim before the court, the Appellants described the Respondents family as a customary tenant. Since all his activities on the disputed land were against the interests of the Appellants, he was to forfeit his right to occupy the disputed property. The place in dispute was No. 17,Ekeonunwa Street where the Respondents father had already erected three buildings. The Respondent claimed that his father was buried there. The Respondent claimed to be a descendant of Umu Opara Nwanyiri like the Appellants. There was evidence that no other members of Ekeocha clan erected houses on ‘OHE OPARA NWANYIRI’. They built their respective houses outside the area. Before the Trial Court, while the Plaintiffs/Appellants claimed exclusive ownership of the disputed property, the Defendant/Respondent claimed ownership of the property in common with the plaintiffs/appellants. In his considered judgment the learned trial judge made orders as follows that:-
(1) ‘The property situate at 17, Ekuonunwa Street and
known as Ohe Opara Nwanyiri is joint property of the defendant and the plaintiffs.
(2) The defendant is not a tenant of the Plaintiffs.
(3) As there are 3 buildings on the land erected by
defendants ostensibly for himself, the court directs and orders that all the houses belong to the Plaintiffs and the Defendant.
Accordingly, they shall share the property into 3 with the defendant taking first as he represents the former head of the family’.
Vide pages 119-121 of the record. Dissatisfied with the judgment of the Trial Court, the Defendant as Appellant appealed to the court of Appeal, Port Harcourt Division. In the judgment delivered on the 18th of January, 2001 the Court of Appeal held that:–
‘The claim of exclusive ownership, was indeed the main claim of the respondents before the lower court and once that failed, the whole case must fail. The trial judge held specifically in his judgment as follows:-
‘If the plaintiffs wish to assert and prove exclusive ownership, they must prove the declaration sought not (sic) by a mere flimsy evidence but a heightened and sustainable proof on the preponderance of evidence.’
The Court found that there was no merit in the appeal, allowed the appeal set aside the judgment of the Trial Court.
The Appellant was aggrieved by the judgment of the Lower Court, he subsequently filed an appeal in this Court.
Briefs were filed and exchanged by the parties. At the hearing of the appeal on 27/4/09, the Appellant adopted and relied on the Appellants brief filed on 8/2/07.
In this brief the appellant settled six issues for determination from the nine grounds of Appeal. They are:-
(1) ‘Whether there is nothing in the pleadings and evidence of the Appellant and Respondent, to support the decision that the property in dispute is the joint family property of the Appellant and Respondent.
(2) Whether the Court below, was right in law, to hold that the Appellants Claim of exclusive ownership, was indeed the main claim of the appellant before the trial Court and once that failed, his whole case fails.
(3) Whether the Court below, was right in law, to reverse the findings of fact of the trial Court, that the disputed property, is jointly owned family property of the Appellant and the Respondent, without the below, Court showing that the finding was perverse.
(4) Whether the Court below, misconceived the case and thereby arrived at a wrong conclusion, in its judgment.
(5) Whether the Court below, was right in law, to set aside the judgment of the trial court, which granted Iess and not more than the Appellants relief of exclusive ownership.
(6) Whether the Hon. (sic) Supreme Court, as a Court of last resort, is not competent in law, to resolve this dispute between members of the same family which may render anyone of them homeless.’
In the Respondents brief filed on 20/1 0/08 which the Respondent adopted and relied upon for the purpose of this appeal, three issues were ably distilled for determination as follows;-
(1) ‘Whether the Court of Appeal was wrong in holding that there was nothing in the pleadings of the Plaintiffs/Appellants to suggest joint ownership of the property in dispute
(2) Whether the Court of Appeal was wrong in setting aside the Order for the sharing of the three buildings belonging to the Defendant/Respondent there being no such relief before the trial Court.
(3) Whether the Plaintiff/Appellants proved their case on the preponderance of evidence.’
The Appellant filed a motion on 16/3/09 for an order enlarging the time for him to file a Reply Brief as til11e granted to him by the Rules of Court had since expired. The application was heard on 27/4/09, and this court granted the order as prayed. The Reply Brief was equally filed and served that day.
On a close scrutiny of the Respondents brief I observed that he, did not file a Notice of Preliminary objection or raise any fresh issue of law for argument in the Respondents brief. All the issues covered by the Reply Brief were already argued in the appellants brief. This leads to the question what is the essence of a reply brief? A reply brief is necessary when a new issue of law or arguments raised in an objection in the Respondents brief not covered in the Appellants brief calls for a reply. An appellant in such peculiar situation ought to file a reply brief in the interest of his case. Argument is restricted to the new points arising. Where the Respondent has not introduced a new issue or point of law a reply brief is most unnecessary. Failure to file a reply brief can only be fatal to the case of the AppeIIant if the issues raised in the Respondents Brief are weighty, substantial, con1petent and relevant in law. The Respondent in this appeal did not introduce any new issue of law in the respondents brief while the issues formulated for argument by both parties were similar.
The Appellant used the Reply Brief in this case as an opportunity to elaborate on the issues already argued in the Appellants Brief.
A reply brief is not to afford the appellant another bite at the cherry. It is not proper to use the reply brief to extend the scope of argulnent and submission in the AppeIIants brief
Edjerode v. Ikine (2001) SCNJ 184
Okonji v. Njokanma (1999)12 SCNJ 259
Akinrinade v. LawaI (1996)2 NWLR pt 429 pg 218
Umeji v. A-G Imo State (1995)4 NWLR pt 391 552
Nwali v. State (1991)3 NWLR pt 182 pg 663
Popoola v. Adeyemi (1992)8 NWLR pt 257 pg 1
Shuabu v. Muihodu (1993)3 NWLR pt 254 pg 148
ACB PLC. V. Apugo (1995)6 NWLR pt 399 pg 65
FRN v. Obegolu (2006)18 NWLR pt 1010
It is the argument and submission of the learned counsel for the Appellant that the Appellant and Respondent pleaded enough facts and gave undiluted oral evidence upon which the Trial court predicated the above stated judgment, which was wrongly upturned by the court of Appeal. The Appellant pleaded facts of joint family ownership of the property in dispute in paragraphs 3,7,8,9,14,18,21,24,28,30,31,33,34 and 35(e) of his Further Amended Statement of claim. The Defendant/Respondent in the amended statement of defence pleaded joint ownership of the family property in dispute in paragraphs 2,3,4,6,8,9,10,11,14,15, and 18. The learned counsel came to the conclusion
based on the summary of evidence from the foregoing paragraphs of the Further Amended Statement of Defence that:-
(a) Both the Appellant and defendant agreed that the ‘OHE UMUOPARA NWANYIRI’- The land in dispute belongs to members of Umuopara Nwanyiri family to which they are members.
(b) By their pleadings both parties asserted that they reside at No. 17, Ekeonunwa Street, Owerri otherwise known as ‘OHE UMUOPARA NWANYIRI’.
(c) The parties agreed that the land in dispute is No. 17 Ekeonunwa Street, Owerri otherwise called ‘Ohe Opara Nwanyiri’.
(d) Both parties agreed that they have their respective buildings on the land in dispute i.e No. 17, Ekeonunwa Street, Owerri, otherwise known as ‘Ohe Opara Nwanyiri’.
The judgment of Court was property predicated in law upon the parties pleadings, evidence and admissions.
The evidence and admissions of the parties are not at variance with their pleadings that the property in dispute is their joint family property. Any judgment of this Court which does not affirm the findings of the Trial Court will give away the buildings of the parties in their jointly owned homestead as well as render one homeless. The Court of Appeal understood the relationship of the parties to the family property when it encouraged the parties to settle their differences amicably within the family circle-Even the alternative claim of the Appellant asking that the Respondent be restrained to the occupation only of a part of the land in dispute namely the storey building as prayed in paragraph 35(e) of the Further Amended Statement of claim the Appellants were conceding joint ownership of the land in
dispute with the Respondent. The learned counsel further submitted that the Appellants fought at the Trial Court on two planks namely:-
(a) Claim or Relief based on exclusive ownership of the land in dispute
(b) The Alternative claim or Relief based on joint ownership.
The third arm of the order of the Lower Court was made in line with Order 47 rule 1 of the Miscellaneous provisions of Imo state of Nigeria, High Court Law (Amendment) Edict 1988. Moreover the Court is enjoined to grant in the exercise of its inherent power reliefs which in the circumstance of the case a party is entitled to. He made reference to the case of FATB LTD. v. Ezegbu & Anor. (1993) 7 NLR pg 1 at pg 3 Ratio 2. The learned counsel finally contended that since the land in dispute are jointly owned by the Plaintiffs and the Defendant; the buildings on the land are equalIy jointly owned by the Plaintiffs under the doctrine of Quid, quic Plantateur solo solo cedit. He cited the cases:-
Francis v. Ibitoye (1936)13 NLR 11
Ezeanirors v. Njidike (1965) NMLR 95
The learned Trial Judge has powers to make consequential orders backed up by the parties pleadings evidence and admissions. He referred to the case of Odukwe v. Ogunbiyi (1998) 8 NWLR pt 561 pg 339 at 358 paras c-d and paras E-G Ratio 10.
The learned counsel urged the Court to resolve issue No.1 in favour of the Appellant.
The learned counsel for the Respondent by way of reply to the above submission explained that the pleadings and oral evidence of the Appellants are that they were descendants of Umunwanyiri family of Owerri Nchise, while the Respondent is the grandson of one Mgbafor who was married to a man from Naze. The Appellants saw the Respondent as a stranger who live with the family and as a customary tenant who had lost his right of possession by challenging his landlord on the disputed land. The Respondent maintained that he is a member of the Umunwanyiri family whose father had at a point in time been the head of the family before he died.
The Appellants did not at anytime claim at the Trial court that the land in dispute was jointly owned by them and that the Respondent was from a completely different village called Naze. The Respondent was seen as a Nwa-Nwa and a customary tenant whose continued stay in the family was subject to good behaviour.
The Court of Appeal had rightly observed that the Lower Court had no jurisdiction to make a new case based on joint ownership of the family property for either of the parties outside their pleadings. and evidence in Court. The learned counsel urged this Court to affirm the judgment of the lower Court and hold that the learned Trial Judge was wrong in holding that the famiIy property was jointly owned by both parties, and resolve this issue in favour of the Respondent.
A careful perusal of the argument and submission of the learned counsel for the appellant demonstrate a clear misunderstanding of the case of the Appellant as Plaintiff before the Trial Court and the reasoning and conclusion of the learned Trial Judge. The crux of the case of the Appellant before the Trial Court are for:-
(a) Declaration of title to all that piece of land which is the home of the Umuopara Nwanyiri or Nwanyiri family and called ‘Uhe Umuopara Nwanyiri’ and which lies at Ekeonunwa Street, Owerri in Amawon Compound, Owerri in Owerri Judicial Division and shown in Plaintiffs plan No. E/GA/ 343/74.
(b) Declaration that the Defendant/Respondent is the customary tenant of the Plaintiffs/Respondent in the disputed land.
(c) Declaration that by denying the Plaintiffs/Appellants title in respect of the disputed land and behaving in a mannar inconsistent with the proprietary interest of the plaintiffs the Defendant has forfeited as the customary tenancy.
(d) An order of Court of the Defendant and members to move out of the building they occupy on the land and relinquish possession of Same to the Plaintiffs.
ALTERNATIVELY an order of Court restraining the Defendant to the occupation only of the storey building on the land shown in the plaintiffs plan as storey building by the Defendant.
(e) It is not in doubt from the evidence on printed record and particularly going by the judgment that the learned Trial Judge gave a critical analysis and proper appraisal to the case of each respective party. The pieces of evidence which he joined together to find joint ownership of the landed property proved are the one he used to conclude that the plaintiff/appellants claim to exclusive ownership of the disputed property was not established on the preponderance of evidence. The learned trial judge said in his judgment on pg 119 of the Record paragraphs 25-31 that–
‘It would seem that a claim of exclusive ownership on the Plaintiffs part only arises when the Defendants’ father acted in a manner that tended to show that he alone had exclusive ownership of the place but when the Defendants father was in a right mood and regarded the Plaintiffs as younger close relations, all claims of exclusive rights are forgotten.
This description seems to be the hall mark of the nature of the case of the plaintiffs.
I find as a fact that none of the parties is a landlord or tenant to the other. The orders this Court will make are that:–
(1) The property situate at 17 Ekeonunwa Street and known as Ohe Opara Nwanyiri is joint property of the Defendant and the plaintiffs
(2) The Defendant is not a tenant of the Plaintiffs.
(3) As there are 3 buildings on the land created by Defendants ostensibly for himself, the Court directs and orders that all the houses belong to the Plaintiffs and the Defendant. Accordingly they shall share the property into 3 with the Defendant taking first as he represents the former head of family.’
On gleaning through the findings and conclusion and the so called orders I find them to be contradictory to the reliefs sought by the Plaintiffs/Appellants. The orders do not flow from the conclusion of the Court as consequential orders. The Lower Court had rightly and properly interfered with the judgment to set it aside. By making the third order for distribution the Trial Court had obviously descended into the arena of conflict and granted
a relief not asked for by any of the parties. The issue of joint ownership was canvassed by the Respondent as a defence and not by the Appellants as Plaintiffs. The learned Trial Court cannot predicate orders in the judgment on it as the Respondent did not file a counter-claim.
The Appellants as Plaintiffs before the Trial Court regarded the claim of the Respondent to joint ownership as inconsistent with the proprietary interests of the Appellants and thereby requested the Trial court to forfeit his interest as a customary tenant.
The Appellant as Plaintiff referred to the Respondent as a customary tenant on the disputed land No.17, Ekeonunwa Street, Owerri. According to the evidence Respondent is an Nwa-Nwa the child of a daughter who married out while it is unacceptable under Owerri Native Law and Custom for him to lay claim to the property of his maternal grandfather. It is only when a claim of the Appellant succeeds before the Trial Court, that the granting of the reliefs go along with the success.
The Trial court was in error in the nature of the reliefs made particularly following the pronouncement made by the learned Trial Judge that the Appellant failed to adduce evidence in support of his claim.
By introducing and making an elaborate issue in respect of joint ownership the learned counsel has now made out a case different from the Plaintiff/appellants case before the Trial court. This runs contrary to the practice and procedure of our civil jurisprudence that you cannot make a case on appeal different to your case before the Trial Court. Neither is a counselor litigant permitted to approbate and reprobate in the conduct of a case-
Ezoma v. AG. Bendel State (1986) 4 NWLR pt 36 pg 448 at pg 462
Kayode v. Odutola (2001) 11 NWLR pt 725 pg 659
An appeal is a continuation of the case before the Trial Court. I am equally duty bound to define the nature of declaratory reliefs particularly in relation to title to land. The purpose of a declaratory relief sought from Court is essentially an equitable relief, in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce an existing state of affairs in law in his favour as may be discernable from the averments in the statement of claim. A declaratory relief is not confined to cases where there is a complete or subsisting cause of action but may be employed in all cases where the Plaintiff conceives he has a right.
Adigun v. A-G Oyo State (……..)(1987) 1 NWLR. Pt 53, pg 678
Igbokwe v. Udobi (1992)3 NWLR pt 228 pg 214
Dantata v. Mohammed (2007)7 NWLR pt 664 pg 176.
In a case for declaration of title to land, the onus is on the plaintiff to establish his claim with credible and acceptable evidence based on the strength of his own case and not upon the weakness of the case of the Defendant. The Plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. The reasoning and conclusion of the Trial Court clearly show that the Appellants case failed to meet up with this requirement.
The Court in the circumstance could not exercise its discretion to grant the declaratory reliefs in their favour.
Adu v. Gbadamosi (2009)6 NWLR pt 1136 pg 110
Ogun v. Akinyelu (2004) 18 NWLH. pt 905 pg 362
Oluwi v. Eniola (1967) NMLR pg 339
The learned counsel for the Appellant has failed to convince this Court that the evidence before Trial Court was predominantly in favour of joint ownership of the land in dispute. Issue one is resolved in favour of the Respondent.
‘Whether the Court below was right in law to hold that the Appellants claim of exclusive ownership was indeed the main claim of the Appellant before the Trial Court and once that failed, his whole case fails’.
The learned counsel submitted that it is trite law in civil actions, that where there is an alternative claim, the Plaintiff can rely either on the main claim or the alternative claim where the main claim fails. Whichever way the Court is not shut out but will consider the alternative claim and the Plaintiff can succeed thereon. By so doing it is proper for a party
to an action to include in his pleadings two or more inconsistent sets of fasts and claim reliefs there under in the alternative.
The learned counsel submitted that the Appeal Court misconceived the nature of the case before the Trial Court, and what it is called upon to decide, it had arrived at a wrong conclusion and this has occasioned a miscarriage of justice against the Appellant. He cited cases in support of his submission as follows:-
Ibekwendu V. Ike (1993) 8 NWLR 76 at pg. 78 Ratio 5
SCE v. Odenewu (1965)2 All NLR pg. 135
U.B.A. V. Mustapha (2004)1 NWLR. pt 855 pg 443 at pg 455
U.B.N v. Penny-Mart Ltd. (1992)5 NWLR pt 240 pg 228
Nwangwa v. Ubani (1995) 10 NWLR pt 526 pg 559
Agidigbi v. Agidigbi (1997) 6 NWLR pt 454 pg 17.
Yesufu v. Kupper Int. N. V (1996)5 NWLR pt 446 pg 17
M.V. Caroline Maersk v. Nokoy Invest Lt. (2002) 12 NWLR pt 782 pg 472.
The learned counsel urged this Court to resolve this issue in favor of the Appellant and set aside the judgment of the Court of Appeal.
The learned counsel for the Respondent replied in his submission that the relief sought by the Plaintiff/appellant in their further amended statement of claim are those shown on page 53 of the Record, particularly paragraph 35 (a-f) therefore. In their oral testimony the Plaintiffs/Appellant never sought any relief in the nature of sharing the buildings into three and in any order at all. The learned Trial Judge was in error when he granted to the Plaintiffs/appellants what they never claimed before the Court in their pleadings or oral evidence in support before the court. The decision of the Trial Court was therefore perverse and the Court of Appeal had jurisdiction to set it aside. The learned counsel canvassed that this issue be resolved in favour of the Respondent.
This Court does not have to belabour this issue as the argument and submission of the learned counsel for the Appellant which is glaring on this issue is self defeating. I shall quote from two cases cited by the learned counsel as follows:-
S.C.E.I v. Odunewu (1965)2 All NLR 135
That “it is submitted that where a trial court is of the opinion that it may be wrong in its decision on the principal claim of a party, it is desirable that it considers the alternative claim of the party. The reason for such step is that the Court of Appeal will have on record the finding and opinion of the trial court on the alternative relief’
In the case of U.B.A PLC V. Mustapha (2004) 1 NWLR pt 855 pg 443 Ext. 455. Ratio 15 the learned counsel quoted.
‘it is trite law that where a Plaintiff on a set of facts asks for a relief and a second relief in the alternative to the first, it is for the court to decide on the facts and in principle whether the grant of the second relief as a further relief will not amount to double compensation for the compensation for the same cause of action, in which case the further or alternative relief should not be granted. In other words, it is only where the court finds that it could not for any reason grant the principal claim, that it would consider the alternative claim’
The learned counsel concluded that the court granted the alternative claim because it did not grant the main claim. The learned trial judge did not give due consideration to the alternative claim anywhere in his judgment. His order for the sharing of the three buildings on the disputed land as being joint property of the family does not flow from the alternative claim of the Plaintiffs which reads.
(e) “Alternatively an Order of Court restraining the Defendant to the occupation only of the storey building in the land shown in the Plaintiffs plan as storey building by the Defendant’
The order made by the trial court did not coincide with the alternative order claimed by the Plaintiffs/Appellant. The scenario for alternative relief is that the claimant or party to an action will include in his pleadings two or more inconsistent sets of facts and claim relief thereunder in the alternative. An alternative award there from is one that can be made instead of another. It is not an additional award. Where a Plaintiff sets up two or more inconsistent sets of material facts and claims relief on each of them in the alternative, he will be granted such relief as the sets of facts he established would entitle him, so only two or more alternative relief will be granted’.
M.V. Caroline Marersk v. Nokoy Investment Ltd (2002) 12 NWLR (pt 782) pg 472.
Yesufu v. Kupper Int. N.V (1992) 5 NWLR pt 446 pg 17.
N.S.M Co ltd v. N.B.C (1967) 1 NMLR 35.
Mercantile Bank of (Nig) Ltd v. Adalma Tanker& Bunkering
Service Ltd (1990) 5 NWLR pt 153 pg 747.
The sum total of the claim of the Plaintiff/Appellant before the trial court envisaged a situation where the claim for title and more particularly for exclusive ownership of the disputed land succeeded, he could concede one of the storeys building on the land to the Respondent as specified in the alternative claim. This issue is resolved in favour of the Respondent.
‘Whether the court below was right in law, to reverse the findings of fact of the trial court, that the disputed property is jointly owned family property of the Appellant and the Respondent without the court below showing that the finding was perverse’
The learned counsel for the Appellant submitted on this issue that parties are bound by their pleadings and the findings of fact of a trial court which are predicated on the parties pleadings and evidence as in the instant case, cannot be said he have been perversely made and cannot be highly disturbed, as was
wrongly done by the Court of Appeal. The learned counsel stated that findings of fact will be perverse when :-
(a) They are speculative and not based on any evidence
(b) Where the court took into account matters which it ought not to have taken into account or where the court shut its eyes to the obvious
The learned counsel cited cases in support of the foregoing
Atolagbe v. Shorun (19BB) 1 NWLR pt 2 pg 360
Mr. E. C. Onumajuru,
with him J. O. Nwosu, (Mrs.)
and J. C. Anochiwa for the appellant.
Mr. C. A. N. Nwokeukwu for the respondent.