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BEN ANEKWE AGINA
MRS. VICTORIA OKWUCHI AGINA
COURT OF APPEAL
(PORT HARCOURT DIVISION)
TUESDAY, 11TH DECEMBER, 1990.
SUIT NO. CA/E/286/86
4 NWLR (Pt. 185) 358
BEFORE THEIR LORDSHIPS
MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Presided and Read the Leading Judgment)
SYLVESTER UMARU ONU, J.C.A.
REIDER JOE JACKS, J.C.A.
E.O. Sofunde, Esq. S.A.N. (with him, B.R. Fashola) -for the Appellant.
F.A. Ilobi, Esq. -for the Respondent.
REAL ESTATE/LAND LAW:- Claim for possession of parcel of land and Mesne profits until possession is delivered up – Title claimed under customary law – How proved
REAL ESTATE/LAND LAW:- Disputed title to land – Evidence of title under customary law – When the radical ownership of the land is deemed to be in issue – Duty on parties to prove radical ownership of vendors – Effect of failure thereto
REAL ESTATE/LAND LAW:- Land deed executed by an illiterate person without complying with the relevant statutory requirement as to authentication – Validity of – Proper way of establishing same – Implication for the transaction as whole – Whether can be saved by other evidence of the agreement
REAL ESTATE/LAND LAW:- Land sale – Where document evidencing same is deemed inadequate – Whether accompanying customary law evidence is admissible
REAL ESTATE/LAND LAW:- Land sale – Document evidencing same – Sale receipt – Survey Map – Where date on sale receipt is altered – Attitude of court thereto
REAL ESTATE/LAND LAW:- Disputed title to land – Priority – Where documentary evidence deemed inadequate – Whether an averment not traversed in the pleadings is sufficient – Identity of land – When deemed not to be in contest
CONSTITUTIONAL LAW – APPEAL COURT – APPELLATE JURISDICTION:- Competence of appeal directed to a wrong division of the Court of Appeal instead of Appeal Court under the 1979 Constitution – Whether not a good ground for declaring appeal incompetent – Whether there is only one Court of Appeal to which appeals lie from the High Court with its judicial divisions created merely for convenience and has nothing to do with jurisdiction
EDUCATION AND LAW – ILLITERACY AND CONTRACTS:- Illiteracy and justice administration – How not to prove or establish same – Land deed executed by an illiterate person without complying with relevant statutory provisions as to its certification by a Magistrate – Validity
CHILDREN AND WOMEN LAW: Women and Real Estate/Property Ownership – Dispute between husband and wife as to ownership of property – Property acquired by wife prior to formal marriage to husband – Ownership thereof
PRACTICE AND PROCEDURE – ACTION – PRELIMINARY OBJECTION:- Preliminary objection raised by Respondent with no argument advanced in support of – Duty of court to ignore same – Whether such objection can however be cured if answered by a submission in the Appellant’s Reply Brief
PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION AND GROUND OF APPEAL:- Rule that issues for determination must arise out of, and encompass, the ground(s) of appeal – Where any issue is formulated which is not encompassed by any ground(s) of appeal – Effect
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Court of Appeal – An appeal directed to a division of the Court of Appeal – Competency of – Whether there is only one Court of Appeal – Legal status of divisions of Court of Appeal
PRACTICE AND PROCEDURE – EVIDENCE – PLEADINGS:- Objects of pleadings – Need to settle/define the issues to be tried and to prevent one party from taking the other by surprise – Rule that court will not allow a party to raise an issue which is not pleaded – Rule that evidence on a matter not pleaded goes to no issue and should not be allowed to be given and, where given, such evidence must be ignored or disregarded by the trial court as going to no issue – Bounden duty of a trial judge, in deciding a case, to keep strictly to the pleadings of the parties and the issues joined and not stray, even when the interest of justice so demands, from the pleadings
PRACTICE AND PROCEDURE – EVIDENCE:- Evidence elicited by trial Judge that elicited from a witness evidence on a fact not pleaded and upon which he made a key pronouncement – Propriety
PRACTICE AND PROCEDURE – EVIDENCE- DOCUMENT:- Validity of a land deed – Whether a registered deed can be rendered invalid via a wrongfully admitted evidence as to illiteracy of vendor
PRACTICE AND PROCEDURE – EVIDENCE – FINDINGS OF FACT:- Attitude of an appeal court to findings of fact made by a trial court – Whether the court of appeal will not interfere with the decisions of the trial court unless such decision is shown to be perverse or not the result of a proper exercise of judicial discretion –
PRACTICE AND PROCEDURE – EVIDENCE – AVERMENTS AND TRAVERSE:- Mere denial of a key averment and putting the party averring to “proof of the averment contained therein” – Whether insufficient denial to such an essential issue of fact
PRACTICE AND PROCEDURE – JUDGMENT:- Perverse Judgment – Whether includes to the trial Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious
INTERPRETATION OF STATUTE:- Order 6 rules 2 and 3 of the Court of Appeal Rule (as amended)
OGUNDARE, J.C.A. (Delivering the leading Judgment):
The appellant before us was the plaintiff in the court below while the respondent was the defendant. The appellant had claimed from the respondent in the High Court of Owerri Judicial Division in Suit No. HOW/333/83 –
“(1) Possession of the piece or parcel of land known as and called “Ujunworji” situate at 26 Owerri -Orlu Road, Owerri, Imo State; and
(2) Mesne profits at the rate of N20,000.00 per annum from 1st January 1980 until possession is delivered up.”
Pleadings were ordered, filed and exchanged. The respondent gave notice and particulars of counter-claim and later filed a Statement of Defence and Counter claim. The appellant in turn filed a reply and defence to the counter-claim. In her counter-claim the respondent had claimed as follows:
“(1) Declaration that by the native law and custom of Amakohia Owerri the defendant is the owner of the land and premises situate at Amakohia Owerri and known as No. 26 Owerri-Orlu Road, Owerri within jurisdiction and is the person entitled to the grant of Statutory Certificate of Occupancy thereof under the Land Use Act 1978.
(2) Payment to the defendant of the sum of N35,000.00 paid by the Monier Construction Company Ltd. to the plaintiff on behalf of the defendant.
(3) Declaration that whatever dealings the plaintiff had as regards the said property was as a trustee and husband of the defendant.
(4) An injunction restraining the plaintiff from parading himself as the owner of the said property and from acting in any manner inconsistent with the defendant’s rights to her said property.”
It is upon these pleadings that the actions proceeded to trial. At the trial, the appellant gave evidence and rested his case. The respondent testified in her defence and called three witnesses. At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial Judge, in a considered judgment, dismissed appellant’s claims and entered judgment for the respondent in her claims (1) and (2) and dismissed her claims (3) and (4) in the counter-claim.
Being dissatisfied with this judgment the appellant has appealed to this Court upon 5 grounds of appeal which without their particulars, read as follows:
“(1) The learned trial judge erred in law in holding that the Appellant’s Deed of Conveyance, Exhibit A, could not be used in evidence since section 8 of the Land Instrument Registration Law, Cap. 72 Laws of Eastern Nigeria had not been complied with.
(2) The Learned trial judge, erred in law in permitting evidence of DW1’s alleged illiteracy to be admitted.
(3) The Learned trial judge erred in law in attributing any probative value to the Respondent’s receipt Exhibit F.
(4) The learned trial judge erred in law in granting the Respondent a declaration that she is the person entitled to the Statutory Certificate of Occupancy to all that parcel of land demarcated in Survey Plan No.-WO/23/76 tendered in evidence and marked Exhibit B which land is situate at Amakohia in Owerri otherwise known as No. 26 Orlu/ Owerri Road in Owerri.
(5) The Judgment is against the weight of evidence.”
And in compliance with the rules of this Court both patties through their counsel filed and exchanged their briefs of argument. The appellant’s counsel also filed a Reply Brief while the respondent’s counsel, with leave of this Court filed an amended Respondent’s Brief. In the appellant’s brief the following six questions are identified as calling, for the determination in this appeal, that is to say:
“(1) Whether the learned trial Judge was correct in treating the registration of exhibit `A’, the Appellant’s deed of conveyance, as a nullity?
(2) Whether the Respondent‘s purchase receipt exhibit `F’ had any probative value?
(3) Alternative to (2) whether exhibit ‘F’ is admissible in evidence?
(4) Whether the Respondent established on a balance of probabilities her purchase under native law and custom?
(5) Alternative, to (4) whether the Respondent established purchase – under native law and custom prior in time to the purchase by the Appellant under exhibit ‘A’? and,
(6) Whether the identity of the land purchased under native law and custom by the Respondent was established?”
Respondent’s counsel, on the other hand, identified three questions in his amended brief, to wit:
“(1) Whether the plaintiff/appellant was entitled to succeed in his claim to the developed premises in dispute on his own steam and on the totality of the evidence led in Court or whether it was the defendant/respondent who was entitled to succeed on the totality of the evidence presented in Court by her and her witnesses?
(2) Whether or not the learned trial Judge had ample evidence which he fairly evaluated before giving judgment?
(3) If the answer to question No. 2 above is yes, the next question is whether having regard to the findings and inferences some of which will be referred to below, the plaintiff/appellant against whose case the lower coup made the copious and meticulous findings and inferences and whose ipse dixit testimony stood discredited could justly expect the lower Court to properly decree judgment in his favour and have the defendant’s/respondent’s counter-claim dismissed for the so-called two reasons contained at page 11 of the appellant’s purported brief of argument dated the 12th November 1986 and in spite of the painstaking findings and inferences made in favour of respondent’s case?”
Having regard to the grounds of appeal, I am of the view, subject to what I will presently say on Question (3), that the questions as formulated in the appellant’s brief are to be preferred and I shall adopt them for the purpose of determining this appeal. It is now settled that issues for determination must arise out of, and encompass, the ground(s) of appeal. Issues do not exist outside the grounds and where any issue is formulated which is not encompassed by any ground(s) of appeal, that issue will be discountenanced. Bearing these principles in mind, as there is no ground of appeal challenging the admissibility of Exhibit F, Question (3) to my mind does not arise for determination in this appeal and consequently it will be discountenanced by me. I am thus left with only questions (1), (2), (4),(5) and (6) to consider.
There is yet another point I think I should dispose of at this stage. This relates to the preliminary objection raised in the amended Respondent’s Brief. The appellant’s counsel has in his Reply Brief, answered the said objection even though no argument was advanced in-the Respondent’s Brief in support of the objection. But for the submission in the Reply Brief, I would have ignored the objection. In. view of the Reply Brief, I propose to consider the said objection.
On the competence of the appeal, it is contended that the appeal was not directed to the Court of Appeal, which under the 1979 Constitution, is the Court to which appeals lie from the High Court, be it Federal or State. The only complaint seems to be that a wrong division of the Court was inserted in the heading of the notice of appeal. Surely, this cannot be a good ground for declaring the appeal incompetent. There is only one Court of Appeal in Nigeria to which appeals lie from the High Courts. Its judicial divisions are created merely for convenience and has nothing to do with jurisdiction. In any event, the case of Surakatu v. Nigeria Housing Development Society Limited & Anor (1981) 4 SC cited in the appellant’s Reply Brief provides a complete answer to the first leg of the objection raised. I find no merit in it.
I equally find no merit in the second leg of the objection. Order 6 rules 2 and 3 of the Court of Appeal Rule (as amended) provides as follows:
“2. The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the Court a written brief, being a succint statement of his argument in appeal.”
3(a) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as any points taken in the court below which the appellant wishes to abandon and any point not taken in the court which he intends to seek leave of the court to argue at the hearing of the appeal.
(b) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(c) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(d) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.
(e) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower courts, nor set out statutory provisions, nor contain an account of the proceedings below or of the facts of the case.”
In my respectful view, the Appellant’s Brief filed in this appeal complies fully with the above provisions and is in line with the proper format of a good brief as laid down in Adimora v, Ajufo (1988) 3 NWLR’ (Pt. 80) 1. Learned counsel for the respondent has not shown in what respect the Appellants brief failed to comply with the said rules.
The preliminary objection is hereby overruled by me.
I now turn to the appeal on hand. The facts are rather simple. The appellant’s case was to the effect that he bought the land in dispute from one Ndukwu on 30th June 1976 and a deed of conveyance (Exhibit A) was executed in his favour by the said Ndukwu. The respondent on 1st. January 1980 took possession of the land and the buildings he erected thereon. Hence his claims for possession and mesne profits.
The respondent, on the other hand, pleaded and led evidence to the effect that she bought the said land from Ndukwu in January 1976 under customary law. She paid the purchase price and was let into possession. She erected some buildings on the land and for a period the buildings were occupied by the Monier Construction Co. (Nig) Ltd. as her tenants. The company paid rents of N35,000 to the appellant as her agent. The appellant, who was her husband, did not pay over the said rents to her and further laid claim to the land and buildings. Hence her counter-claim to appellant’s action.
One of the objects of pleadings is to settle the issues to be tried and to prevent one party from taking the other by surprise – see Abowaba v. Adesina, 12 WACA 18 where it was held:
“The object of pleadings is to compel the parties to define the issues upon which the case is to be contested and to prevent the party from taking the other by surprise by leading evidence on material facts of which the other has not due warning.”
See also: Total Nig Ltd. v. Nwako (1978) 5 SC 1; Oduka v. Kasumu 7 (1967) 1 All NLR 293; George v. Dominion Flour’ Mills Ltd. (1963) 1 All NLR 71; (1963).1 SCNLR 1 l; Emegokwue v. Okadigbo (1973) 4 SC 113. It is for this reason that that court will not allow a party to raise an issue which is not pleaded. Evidence on a matter not pleaded goes to no issue and should not be allowed to be given and, where given, such evidence must be ignored or disregarded by the trial court as going to no issue – Usenfowokan v. Idowu (1969) 1 All NLR 125; George v. Dominion Flour Mills Ltd. (supra); Idahosa & Anor. v. Orosanye 4 FSC 166; (1959) SCNLR 407 Ogboda v. Adulugba (1971) 1 All NLR 68; George v. U.B.A (1972) 8/9 SC 264, 274-279; Adimora v. Ajufo (supra). A trial judge, in deciding a case, must keep strictly to the pleadings of the parties and the issues joined and must not, even when the interest of justice so demands stray from the pleadings nor must he import into his judgment issues not pleaded – Dipcharima v. Alli (1974) 12 SC 45, 47; Adebisi v. Oke (1967) NMLR 64; Adimora v. Ajufo (supra).
The issue of the validity or otherwise of appellant’s deed of conveyance was never in issue before the trial court nor was it anywhere pleaded that Ndukwu was an illiterate. In paragraph 2 of the statement of claim, the appellant had pleaded thus:
“2. The Plaintiff purchased the said piece or parcel of land from the Ndukwu family of Amakohia Uratta Owerri on 30th June 1976. The said purchase was evidenced by a Deed of Agreement made the 30th day of June 1976 between the Plaintiff and one Athanatius Ndukwu, the head of the said Ndukwu family. The Plaintiff shall rely on the said Deed of Agreement to found his title to the said piece or parcel of land.”
The respondent’s reply is contained in paragraph 11 of her statement of Defence and Counterclaim wherein she pleaded thus:
“11. The defendant vehemently denies paragraph 2 of the Statement of Claim and puts the plaintiff to the strictest proof. The defendant will contend that Mr. Athanatius Ndukwu Ekeocha on whose behalf in January 1976 the chief and head of his kindred Chief Gilbert Nwabueze had acted and received the purchase money which was paid over to the said, Mr. Ndukwu Ekeocha could not validly and secretly agree to convey or convey in June, 1976, defendant’s land which she had in January 1976 bought according to Amakohia custom and cleared and occupied.”
When Athanasius Ndukwu Ekeocha DW I through whom both parties claimed title was testifying and had admitted executing Exhibits D and A – the deeds of conveyance in favour of the respondent and appellant respectively, the learned trial Judge then put a question to him. I shall set below the question and answers as appearing on the record.
“COURT: Can you read Exhibit A and D
ANSWER: I am an illiterate; I cannot read any of them. I read up to elementary 4 and pulled out.”
The learned trial Judge, with respect to him, was in error to have asked the question thereby raising an issue not pleaded to by either party, nor relied on by any of them.
Learned defence counsel, Mr. Ogundipe, sensing the danger to his case by the course taken by the learned trial Judge cross-examined the witness intensely with a –view to establishing that he was indeed literate, Learned counsel was obviously taken by surprise by the question asked by the court.
The learned trial Judge did not stop at this; he now used the fact of illiteracy of DW 1 given in evidence by the witness to determine the issue of the validity of Exhibit “A” which was the plank on which the appellant rested his case and which issue was never raised in the respondent’s pleadings. Here is what he said in his judgment:
“In this suit, plaintiff’s title is rooted in Exhibit `A’ which is a deed of conveyance executed on the 30th of June 1976 and registered as No. 26 at page 26 in Volume 108 of Lands Registry kept in the office at Owerri. The deed was signed by one Athanatius Ndukwu who testified as D.W.1 at the hearing of this suit. The deed was admitted in evidence without objection as Exhibit A. Athanatius Ndukwu who is alleged to be vendor was not called by the plaintiff to prove its due execution. He however agreed under cross-examination that he signed Exhibit A, but not in favour of the plaintiff. He maintained throughout his evidence that he did not convey any land to the plaintiff, not even the land in dispute. The document upon which plaintiff founded his claim was duly registered, but was not authenticated. He did not claim a waiver under Section 129 of the Evidence Act. When Athanatius Ndukwu was testifying for the defendant, I put Exhibit A and D to him and asked him if he could read any of them. His reply was emphatic, he could not read any of them because according to him, he is an illiterate. When Mr. Ogundipe asked him why he did not thumb-impress Exhibit A as an illiterate would do, his reply was that he hated the whole idea of thumb-impressing documents as that method would show him up easily as an illiterate. I carefully watched Athanatius Ndukwu when he testified and more particularly the way he answered all the questions put to him by Mr. Ogundipe, learned Counsel for the plaintiff touching on his claim to be an illiterate, and I have no doubt in my mind that he told the Court the truth. I believe him that he is an illiterate, within the meaning of Section of the Land Instrument Registration Law Cap 72 Law of Eastern Nigeria which provides:
“8(1) No instrument executed in Nigeria after the commencement of this Law, the grantor, or one or more of the grantors, whereof is illiterate, shall be registered unless it has been executed by such illiterate grantor or grantors in the presence of a magistrate or justice of the peace and is subscribed by such magistrate or justice of the peace as a witness thereto.”
If Exhibit A did not qualify for registration as I have found, it follows that plaintiff could not have founded his claim on it or to have given any evidence at the trial concerning the land in dispute, since it would have been tied to the unregistered document, see Section 15 of the land Instrument Registration Law. The fact that plaintiff proceeded to register Exhibit `A’ when he had not complied with Section 8 of the same law could not confer any effect or validity which the document could not otherwise have had, see Section 23 of the Land Instrument Registration Law Cap. 72 Laws of Eastern Nigeria. It is not in doubt that Section 8 of the Land makes it mandatory that due authentication of that document. What this means is that the fact that a document has been duly registered does not preclude an inquiry as to whether or not it was duly authenticated if it was executed by an illiterate as is the case in hand. Mr. Ogundipe, learned Counsel for the plaintiff had strenuously contended that the vendor could not claim to be illiterate, since he appears to know what he did. He also vigorously contended that the vendor could not give any evidence concerning Exhibit A which is an instrument since such evidence is excluded by Section 131 of the Evidence Law. I do not agree with Mr. Ogundipe that the mere fact that the vendor may have understood the purport of his action (and I do not share that view) disqualifies him from claiming to be an illiterate. I think that there is a serious flaw in that argument.
An illiterate under the Land Instrument Registration Law.
A claimant to title to land founded on an instrument executed by an illiterate vendor and not authenticated is precluded from registering such a document. If he registers such a document, notwithstanding, the registration is a nullity and Section 15 of the Land Instrument Registration Law will preclude him from founding a claim upon it.”
He concluded on Exhibit A in these words:
“I have no doubt in my mind that the vendor of Exhibit A is a illiterate as contemplated by the provisions of Section 8 of the Land Instrument Registration Law and that Exhibit A ought therefore to have been authenticated by a Magistrate or a Justice of the Peace. This was not the case. Exhibit A was not at all authenticated as it ought to have been. In my view, it follows that its purported registration is a – nullity.”
With profound respect to him, the learned trial Judge was in error in the course he took and his pronouncement on Exhibit ‘A’ must be set aside. The case of Olaloye – v. Balogun (1990) 5 NWLR (Pt.148) 24 cited to us by learned counsel for the respondent does not help him as the issues therein are different. In the appeal on hand it was the learned trial Judge that elicited from DW 1 the evidence on a fact not pleaded and upon which evidence he pronounced on the validity of Exhibit A. My respectful view on the authorities is that he cannot rightly do this. The position then is that Exhibit A must be treated as a valid document. But whether it is effective to transfer title in respect of the land in dispute to the appellant is another matter which will be considered later in this judgment. It is here that Olaloye v. Balogun becomes relevant. Suffice it to say that question (1) is answered in the negative.
Exhibit F was tendered by the respondent as the receipt issued to her by DW 1 on her paying the purchase price for the land in dispute. Having regard to the evidence of the respondent and DW 1, I will answer Question 2 in the affirmative. The document confirms the evidence of the respondent and DW 1 that she paid the sum of N2,200 as purchase price for the land and that DW 1, the owner received same. What weight is to be attached to the Exhibit in view of the alteration on it as to its date and the inclusion on it of a plan that came into existence after the purported date of the document is a different matter.
Questions 4 – 6
These questions dovetail into each other and are better taken together. They are essentially questions of fact. The attitude of an appeal court to findings of fact made by a trial court has been stated and restated in a long line of eases. It is trite to say that where the appeal involves questions of fact, the court of appeal will not interfere with the decisions of the trial court unless such decision is shown to be perverse or not the result of a proper exercise of judicial discretion – see: Ntiaro v. Akpan (1910) 3 NLR 10; (1918) 3 NLR I I (P.C.); Kodilinye v. Odu (1935) 2 WACA 336; Osanwonyi v. Osanwoyi (1972) 10 S.C. 1; Ogundulu v. Phillips (1973) 2 S.C. 71; to mention a few. A decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious – Atolagbe v. shorun (1985) 1 NWLR (Pt.2) 360 at 373; Adimora v. Ajufo (supra).
Respondent pleaded in her statement of defence and counter-claim as follows:
Evidence was led by the respondent, DW1 and DW2 in support of the above averments. The learned trial judge accepted the evidence of these witnesses and found that the respondent acquired the land in dispute under customary law in January 1976. I have no reason to disturb this finding in view of the overwhelming evidence on record in support thereof, evidence which the trial Judge accepted as credible. In view of his finding that –
“I believe and accept the testimony of the defendant that she bought the land in dispute under native law and custom in 1976, before plaintiff’s purported acquisition as per Exhibit `A’. I also believe D.W. 1 that he sold only to the defendant and that it was the defendant who developed the land in dispute. I equally believe D.W.2 that he saw the defendant develop the land in dispute and that she acquired the same according to native law and custom of Amakohia.”
I hold that the learned Judge was right in entering judgment for the respondent in her claim (1) for a declaration.
I also hold that in view of the evidence before the trial court, and accepted by the learned Judge, respondent acquired title to land in dispute prior to appellant’s Exhibit ‘A’. I have examined Exhibit F carefully. The date on it was altered from “Feb.” to “Jan” (meaning January) and reference was made in it to a plan not in existence in January 1976. For these reasons I would not place much weight on Exhibit F. But Exhibit ‘F’ apart, respondent pleaded in paragraph 6 of her pleadings that she bought the land in dispute in January 1976. The appellant, in his Reply and Defence to Counter-claim merely denied paragraph 6 (among others) and put “the defendant to proof of the averment contained therein.” This has been held to be insufficient denial to such an essential issue of fact as raised in paragraph 6 of respondent’s pleadings -Lewis and Peat v. Akhimien (1976) 7 S.C. 157, 163-164. One would expect the appellant, having regard to his statement of claim, to give an answer if he had any, to paragraph 6. Although in the evidence of the respondent and DW1, no date was given of the transaction of sale but as Exhibit ‘B’ was signed on 24th Feb. 1976, it is reasonable to hold that the transaction of sale took place before 24th Feb. 1976, moreso in the light of the evidence of the respondent wherein she said:
“When I purchased the first portion it was surveyed by me and beacons planted showing the boundaries of the land, before the final payment… My surveyor handed Exhibit B to me and this is a survey plan of part of the land in dispute purchased for N2,200.”
It has been argued by appellant’s counsel that there was no proper evidence of identification of the land over which the declaration was granted. With respect to the learned Senior Advocate, I cannot accept this argument. Paragraphs 4 and 12 of the Respondent’s pleadings read thus:
“4 The defendant has at all material times been and is the owner in possession of the developed landed property known and called 26 Owerri – Orlu Road at Amakohia in Owerri Urban Local Government Area.”
“12. The defendant states that the Plan No. WO 23/76 Exhibit BAN/I pleaded in paragraph 1 of the Statement of Claim which is the same plan pleaded in paragraph 6 of this Statement of defence came into existence in the following circumstances.”
Moreover, by paragraph 6 of his Reply and Defence to counter-claim the appellant conceded the part of the land claimed by the appellant and covered by Exhibit D. From the pleadings and the evidence, both oral and documentary, there is no dispute as to the identity of the land in dispute which identity is well proved by Exhibit B and D.
The last point I wish to touch briefly on is that even on appellant’s showing he could not have succeeded in his own claim. By paragraph 2 of his statement of claim, he pleaded that he bought family land from Ndukwu, the family land. Apart from tendering Exhibit ‘D’ he led no iota of evidence in support of paragraph 2. The respondent in her pleadings averred that the land belonged to Ndukwu by inheritance. Thus she put in issue the radical ownership of the land. But the appellant failed to prove this radical ownership of his vendors.
Even if appellant had succeeded in doing this, it is evident on the record that he got his own title in June 1976. The learned trial Judge in dealing with this aspect of the case said:
“It has long been settled that were a party acquired title to land under native law and custom and moves into possession and later the same vendor purports to sell the same land by a deed of conveyance to another, that the interest acquired under native law and custom cannot be extinguished by the subsequent acquisition by deed of conveyance. See Bamgbola Amao v. Daniel Niyi Adebona (1962) LLR p. 125, Ogunbabi v. Abowab (supra). What this means is that even if I was found to be wrong in holding that Exhibit A is a nullity, still the rights of the defendant to the land in dispute cannot be defeated because of her prior customary acquisition and long possession of the land in dispute. See Karimu Ayinla v. Sifawu Sijuwola (1984) 5 S.C. 44 at 76; (1984) 1 SCNLR 410.”
I agree with his reasoning and conclusion.
From all I have been saying I will answer each of Questions 4-6 in the affirmative. The net result is that this appeal fails and it is dismissed. I affirm the judgment of the court below dismissing the appellant’s claim and finding for the respondent on her claims (1) and (2). The respondent is entitled to the costs of this appeal which I assess at N450 inclusive of out-of-pocket expenses.
I have had a preview of the lead judgment of my learned brother, Ogundare, J.C.A. just delivered and I entirely agree with him that this appeal must perforce fail. I will myself dismiss it and make the same consequential orders inclusive of those as to costs.
I have read in advance the. judgment of my learned brother Ogundare, J.C.A. just read. For the reasons given by him, 1, too agree that the appeal be dismissed. I abide by the orders including costs made in the said judgment.