IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 10th of March, 2014
AFO AKOBI (Substituted for ANDREW ODAH as for himself and on behalf of Members of Akobi Odah's Family) ........ Appellant
CHUKWUKA OSADEBE ........................................ Respondent
Appellant's brief treated as argued
Ekpa B. Ekpa - for Respondent
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment):
The original plaintiff, one Andrew Odah, (now deceased), for himself and on behalf of members of Akobi Odah's family, took out an action at the High Court of Cross River State, Ogoja Judicial Division, against the respondent herein (as defendant). He claimed the following reliefs:
(a) A Declaration that the plaintiff is the heir at law to Akobi Odah, deceased;
(b) A Declaration that the plaintiff is entitled to take over and/or manage the property situate at No 20 New Market Road, Okuku, Ogoja;
(c) A Declaration that the purported sale of the said property is fraudulent, null and void, the same not having been approved by the principal members of the family.
He, also, claimed mesne profit and general damages. By order of court, Akobi Odah was substituted for Andrew Odah, upon the latter's demise.
Pleadings were, duly, settled, filed and exchanged. Subsequently, the matter went on trial before the court (hereinafter, simply, referred to as "the lower court"). Three witnesses, PW1 (the plaintiff himself); PW2 and PW3 presented the plaintiff's case. The respondent (defendant, as he then was) testified in his defence as DW1. He called one other witness, DW2, to bolster his defence.
In its judgment, delivered on May 27, 2009, the lower court dismissed the plaintiff's case, hence, this appeal to this court. From his Nine Grounds of Appeal, he set out three issues for the determination of his appeal. The respondent adopted the said issues. We shall, equally, adopt them in the determination of this appeal. Before then, however, we shall give an overview of the factual background to this appeal.
The appellant's case at the lower court was that the property situate and known as No 20 New Market Road, Okuku, Ogoja, Yala Local Government of Cross River State, was owned by their late father, Akobi Odah, who died intestate. Sometime in 1977, their father, Akobi Odah, entered into a lease agreement with the respondent's father, Charles Osadebe, over the said property, that is, No 20 New Market Road, Okuku, Ogoja, Yala Local Government of Cross River State. His story was that the said lease agreement expired in November, 1990.
He equally made the case that the said property was an uncompleted twelve room-apartment. His father, Akobi Odah, gave the respondent's father, Charles Osadebe, the said property to complete and establish his business for a period of twenty years; thereafter, the property would revert to his [plaintiff's] father, Akobi Odah. The respondent's father, Charles Osadebe, did not surrender the property after the expiration of the leasehold.
All efforts to settle the matter in 1990 failed for the plaintiff's elder brother, Christopher Akobi, had sold the said property to the respondent's father. In 1991, the appellant's solicitor caused exhibit 1 to be written to the respondent's father. Exhibit 2, dated June 1, 1992, was the latter's response to exhibit 1. In the said exhibit, he indicated his unwillingness to surrender the said property. This was the proximate factor that prompted the suit at the lower court.
On the other hand, the respondent's case was that his late father, Charles Osadebe, owned, and had been in possession of, the said property since 1977. His story was that, sometime in 1977, his said father entered into a twenty year lease agreement with one Christopher Akobi, and not the appellant's father, Akobi Odah, over the property now in dispute. He maintained that the lease was still subsisting when the said Christopher Akobi, the Lessor, sold the property to his said father, Charles Osadebe.
In addition, the said Christopher Akobi donated an irrevocable Power of Attorney to his said father to manage the property. Sequel to the transaction, his father, Charles Osadebe, had been in peaceable possession of the property since September 14, 1991. He had exercised several acts of ownership on the land long before the appellant commence his suit on November 17, 2003.
As indicated above, the appellant set out three issues for the determination of his appeal. The issues were framed in these terms:
(1) Whether the appellant's case before the lower court was incompetent as to rob that court of jurisdiction?
(2) Whether the learned trial Judge was right in holding that the property, subject matter of the suit, was not a family property?
(3) Whether the purported sale of the subject matter of the appellant's suit was not invalid, null and void?
ARGUMENTS ON THE ISSUES
Whether the appellant's case before the lower court was incompetent as to rob that court of jurisdiction?
When this appeal came up for hearing on January 15, 2014, the appellant's counsel was not in court. Being satisfied that he was, duly, served with the hearing notice for that day, this court treated the brief of argument settled by B. Olusegun, counsel for the appellant, filed on September 28, 2010, although, deemed, properly, filed on October 17, 2012, as having been, duly, argued pursuant to order 18 Rule 9 (4) of the Court of Appeal Rules, 2011. In the said brief, he argued that the lower court approached this issue from two separate angles.
In the first place, it considered the question whether the defences of laches and acquiescence availed the respondent against the appellant. He pointed out that paragraph 25 of the statement of Defence did not, positively, raise the defences of laches and acquiescence. He opined that having regard to the vague, ambiguous, omnibus and general nature of the said paragraph 25 of the Statement of Defence, it was immaterial that the appellant did not traverse it. In his view, the appellant's failure to deny the said paragraph of the Statement of Defence cannot be interpreted to mean his admission of the equitable defences of laches and acquiescence, NIDB v. SOFRESIT Soft Drink Ltd (1992) NWLR (pt. 242) 471, 473; Adua v. Essien (2010)3 WRN 95.
He posed the question whether having regard to the facts and circumstances of the case, the said defences availed the respondent to defeat the appellant's case. He observed that the lower court found that the appellant became aware of the respondent's claim to have purchased the property in dispute in 1992. The appellant filed the case that culminated to this appeal in 2003.
He disclaimed the view that the appellant kept quiet for about eleven years upon becoming aware of the respondent's claim. On the contrary, he noted, upon becoming aware of the said claim, the appellant, immediately, reacted by writing exhibit 1.
He submitted that the Supreme Court had laid down the ingredients or requirements for sustaining a plea of laches and acquiescence, citing Kayode v. Odutola (2001) FWLR (pt. 57) 975, 989-990 paragraph H-C. He maintained that it was the duty of the party who was relying on the defences of laches and acquiescence to lead evidence in proof of the said ingredients or elements of the defences.
He pointed out that, apart from merely stating that he would rely on all legal and equitable defences, the defendant did not make any effort whatsoever to establish the elements of the said defences of laches and acquiescence. He submitted that there is no fixed time or period for the application of the said doctrine of laches and acquiescence, Ige v. Fagbohun (2002) FWLR (pt. 127) 1140, 1147. He noted that laches and acquiescence are discretionary remedies, hence, they do not follow as of course, Kayode v. Odutola (supra) at 998 paragraphs E-G.
He pointed out that the appellant alerted the respondent about his rights very promptly. He maintained that he [the appellant] did not assent to any violation of his rights over the property. In his submission, neither did he [the appellant] conduct himself in a way that might be regarded as a waiver of his rights nor did he extend any inducement to the respondent at any time to continue to infringe his rights, Owie v. Ighini  All FWLR (pt. 248) 1762, 1771.
He observed that the lower court found that the period between when the appellant became aware of his right and when he approached the court was about eleven years, citing section 44 of CAP L14, volume 4, Laws of Cross River State 2004. He explained that the Limitation law, CAP L14, Laws of Cross River State came into force on January 1, 2005. On the other hand, the appellant instituted this action on November 17, 2003, more than one year before the commencement of the said Limitation Law. He submitted that whichever way the issue was looked at, the appellant's case was competent and the court was imbued with all jurisdiction to entertain it. He urged the court to resolve this issue in favour of the appellant.
On his part, counsel for the respondent, James Ndem adopted the brief filed on October 8, 2012, although, deemed as properly filed on October 17, 2012. In the said brief, it was pointed out that the plaintiff neither filed a Reply to paragraph 25 of the respondent's Statement of Defence nor did he apply for further and Better particulars from the respondent if he considered the said paragraph 25 or the said equitable defence ambiguous or vague. In his view, in this appeal, the appellant can no longer question the respondent on the nature of equitable defence he intended to rely upon, Akpena v. BARCLAY BANK OF NIG. LTD (1977) 1 SC 47; United Marketing Co. Ltd. v. Kura (1263) 1 NWLR (sic) 523.
He noted that the High Court (Civil Procedure) Rules of Cross River State, 1980 make provision for further and better particulars where a party considers any paragraph of a pleading to be ambiguous. He dismissed the appellant's counsel's submission that paragraphs 24 and 25 of the respondent's statement of Defence were ambiguous or vague. He pointed out that, apart from pleading the equitable defences in paragraph 24 and 25 of the Statement of Defence, the facts of this case showed that the appellant was caught by the doctrine/plea of laches and acquiescence.
He explained that there were sufficient pieces of evidence pleaded and proved before the lower court that Christopher Akobi granted a lease of the property in dispute to the respondent's father, Charles Osadebe, in 1977 and later sold the property to the respondent's father in 1991. He, also, granted an irrevocable power of Attorney to the respondent's father as shown in exhibits 5, 6, 7, 8 and 9 (1) - 19, pages 116-117 of the record). He pointed out that there was, also, evidence before the lower court that Christopher Akobi died in 2002.
He noted that, from 1992, when the appellant and his predecessor became aware that their alleged right had been tampered with by their elder brother, Christopher Akobi, to 2002 when Christopher Akobi died, was a period of eleven years. He observed that it was not in dispute that the respondent's father, Charles Osadebe, got lost, mysteriously, in 1998. Counsel pointed out that, throughout the lifetime of the respondent's father, the appellant did not take any action against him.
He noted that Christopher Akobi, who sold the subject matter of this suit to the respondent's father, was the appellant's eldest brother. He died in 2002. Counsel opined that, in all these dealings in the property by Christopher Akobi, the appellant and his predecessor kept quiet until when they observed that Charles Osadebe, the respondent's father was missing in 1998 and Christopher Akobi, his eldest brother, died in 2002 and the appellant instituted this action in 2003 knowing that there would be state evidence. He observed that the lower court, in support of its discretion, relied on Ige v. Fagbottun (2002) FWLR (pt.127) 1140, 1147, 1163, paragraphs E-F and H.
He contended that acquiescence, in its proper legal sense, implies that a person abstains from interfering when a violation of his rights is in progress, Atunrase and Anor v. Sumola and Anor (1985) 1 NWLR (pt. 1) 105, 111 paragraph E. According to him, by the conduct of the appellant since 1992, the respondent's father was made to believe that the property he bought from Christopher Akobi was not encumbered and that Christopher Akobi, being the heir of Akobi Odah and, was introduced to him as such, had the right to deal with the property, Ezomo v. AG Bendel  4 NWLR (pt. 36) 449, 450.
He pointed out that, since exhibit 2, a letter written by the respondent's father's solicitor to the appellant's parent stating the root of his title was served on the appellant since 1992, he (the appellant) and his predecessors did not do anything to inform the respondent's father to alter his position thereby causing the respondent to have reasonable belief that the claim of the appellant in exhibit 9 has been abandoned. He submitted Kayode v. Odutiza (2001) FWLR (pt. 57) 975, 689-990 was unavailing to the appellant.
He explained that the respondent, in his Statement of Defence and evidence before the lower court, pleaded and led evidence to establish the ingredient's of the equitable defences of laches and acquiescence. He noted, however, that if the respondent did not plead the said equitable defences, the facts of the respondent's case and the evidence which he adduced were sufficient for the lower court to infer that the appellants had abandoned their interest in the property, if any. He conceded that there was no fixed time or period for the application of defences of laches and acquiescence however that time and period would be considered inordinate depending on the circumstances of the case.
He canvassed the view that where there are two competing assertions by parties before a trial court, it is the duty of such court to consider both assertions carefully and to decide on the balance of probabilities which of the assertions it would accept, Omoregbe v. Edo (1971) 1 All NLR (pt.1) 282, Odutola v. Seidu Aileru  1 NWLR (pt.1) 3. He maintained that the appellants' delay to enforce their alleged right, coupled with the death of Christopher Akobi in 2002 and the loss of the respondent's father, Charles Osadebe, in 1998, were sufficient circumstances for the lower court to exercise its discretion as it did. He quipped that Kayode v. Odutola (supra) did not envisage fraud, the only condition which would deprive a man of his legal rights.
Counsel submitted that the lower court, in view of the circumstances of this case, was not in error to have found that the appellant or his predecessors in title acquiesced in the adverse possession of the respondent, Alhaji Salesman v. Hanibal Johnson (1951)13 WACA 213; Agiboola v. Abimbola (1969)1 All NLR 287; Akpan Awo v. Cookey Gam 2 NLR 100; Saidi v. Akinwunmili I FSC 107. He urged the court not to interfere with the decision of the lower court as the evaluation of evidence is primarily the function of the trial court, Mainagge v. Gwama (2004) 12 MJSC 34, 35 paragraphs E-G. He entreated the court to uphold the discretion which the lower court exercised and its decision and dismiss the appeal.
RESOLUTION OF THE ISSUE
From the submissions of counsel (pages 1-11 of the appellant's brief and pages 5-12 of the respondent's brief), it is obvious that their main disagreement was on the propriety of the lower court's invocation of the defences of laches and acquiescence to defeat the plaintiff's case by virtue of the averment in paragraph 25 of the Statement of Defence.
As is well-known, it is in their pleadings that parties define and delineate the contours of their forensic hostilities. In the vocabulary of pleadings, it is the assertion and denial that constitute the dispute. Thus, it is only where facts are disputed that they are said to be facts- in- issue, Barje v. Unduma  13 NWLR (pt 731) 673, 688; Ehimare and Anor v. Emhonyon  1 NWLR (pt 20 177, 183; Olufosoye v. Olorunfemi  1 NWLR (pt 95) 26; Osolu v. Osolu (2003) 11 NWLR (pt 832) 608.
Indeed, there is authority for the view that the essence of pleadings is to enable the court and the parties in the case to know, from the joinder of issues, the exact case which they have to meet at the hearing of the dispute, Ashiru Noibi v. Fikolati and ors (1987) 3 SC 105, 119.
The key to the resolution of the above divergent submissions, therefore, is tucked away in the approach of the respective pleaders, particularly, the defendant [now respondent]. Here, it is important to re-state the settled prescription that all the paragraphs of the pleadings must be read in conjunction to enable the court to properly ascertain the issues joined in the pleadings, NBC v. Oboh (2000) 9 WRN 14, 125.
In paragraph 25 of the statement of Defence, page 12 of the record, the crucial averment, which the lower court later relied on, in holding that the defences of laches and acquiescence were applicable, was couched thus
"[i]n defence of the allegation contained in the plaintiff's statement of claim, the defendant shall rely on all legal and equitable defences..."
The lower court took the view that, since the plaintiff [now, appellant] did not file a Reply to the Statement of Defence, it was "an obvious signal of the collapse of the house of the plaintiff...", page 123 of the record.
In the appellant's brief, it was contended, and forcefully too, that:
...the said paragraph did not positively raise the defence of laches and acquiescence...Even though, laches and acquiescence are equitable defences, there are many more. They are by no means the only equitable defences. How then was the appellant to have known which 'equitable defences' the respondent was going to rely upon to enable him react. Pleadings are meant to give the parties [a] very clear picture of their respective cases. They are not to be vague and or ambiguous...
[page 4 of the appellant's brief]
Just like Kalgo JSC did in Nsiege and Anor v. Mgbemena and Anor (2007) LPELR -2065 (SC); (2007) 4-5 SC 1, 10-12, we have perused paragraphs 1-25 of the statement of Defence, pages 9-12 of the record. We are unable to see, in any of them, anything constituting a plea of laches and acquiescence by the respondents herein. We agree with the appellant's submission that it was only in the said paragraph 25 that reference was made to "equitable defences."
The other paragraphs, namely, paragraphs 1 - 24 did not donate any facts, that is, did not plead facts upon which these defences may be located, Adeniran v. Alao (2002) FWLR (pt 90) 1285, 1304-1305, not to mention the defence of laches and acquiescence.
Case law and text writers are ad idem on the view that the defences of laches and acquiescence must be "specifically pleaded" Adeniran v. Alao  FWLR (pt 90) 1285, 1304-1305; with due particularity, Ibenwelu v. Lawal (1971) 1 All NLR 23. It cannot be otherwise for it is the facts averred which determine what the real defence is. As such, it is necessary that the facts should be adequately and carefully stated, Bullen and Leake and Jacob's Precedents of Pleadings (Thirteenth edition) 1254-1255.
Thus, if the respondent in this appeal [as defendant at the lower court] was minded to rely on the said defences of laches and acquiescence, he had a duty to plead, Alade v. Aborishade (1960) 5 FSC 167 and to prove same. The plaintiff [now, appellant] had no obligation to show that there had been no acquiescence, Alade v. Aborishade (1960) 5 FSC 167; F. Nwadialo, Civil Procedure in Nigeria (second edition) (Lagos University of Lagos Press, 2000) 333; see, also, the extremely useful treatise by the energetic and perspicacious J. Amadi, Limitation of Action: Statutory and Equitable Principles (Vol. 11) (Port Harcourt: Pearl Publishers, 2011) 1704 et seq.
In our respectful view, the submission that "the omission to plead the equitable defence of laches and acquiescence, inextricably, means that evidence cannot be led on such defence, and if led on them, such evidence goes to no issue," J. Amadi, Limitation of Action: statutory and Equitable Principles (vol 11) (Port Harcourt: pearl publishers, 2011) 1704 cannot be impeached, Egbe v. Adefarasin  1 NWLR (pt 47) 1; Ilona v. Idakwo (2013) 11 NWLR (pt 830) 53. See, generally, Abubakar v. Joseph  13 NWLR (pt 1104) 307; Eze v. Atasie (2000) 10 NWLR (pt 676) 470; Okagbue v. Romaine (1982) 5 SC 133.
However, in its judgment, the lower court dissipated so much judicial energy on the pieces of evidence relating to the said defences which, as shown above, were not, specifically, pleaded, see, in particular, pages 121-131 of the record.
In all, therefore, having disposed of the effervescent contentions on which counsel joined issues in their respective briefs, (pages 1-11 of the appellant's brief and pages 5-12 of the respondent's brief), we have no hesitation in upholding the position of the appellant's counsel that, based on the pleading of the defendant, particularly, paragraph 25 thereof, the lower court, wrongly, in the graphic metaphor of an English Judge, "pulled the guillotine to behead" the plaintiff's suit. We resolve this issue in favour of the appellant.
Whether the learned trial Judge was right in holding that the property, subject matter of the suit, was not a family property?
On this issue, counsel pointed out that the fulcrum of the appellant's case at the lower court was that the property, No. 20 New Market Road, Okuku, Yala Local Government Area, the subject matter of the case, is the family property of Mr. Akobi Odah (deceased). He noted the appellant's assertion that Mr. Akobi Odah died intestate. He contended that if the property was owned by Mr. Akobi Odah and he died intestate, upon his death, the property became a family property for the benefit of all his children/beneficiaries.
He canvassed the view that there is no issue between parties in respect of matters, expressly, admitted on the pleadings, citing section 75 Evidence Act LFN 2004 (then applicable); Adebayo v. Adusei (2005) All FWLR (pt. 240) 152, 158; Okposin v. Asam (2005) All FWLR (pt. 282) 1863, 1865; HABIB Nigeria Bank Ltd. v. GIFT CHRIQUE Nig Ltd (2005) All FWLR (pt. 241) 234, 245.
He observed that the main function of pleadings is to focus, with much certainty, as far as possible, the various matters actually in dispute among the parties and those in which there is agreement between parties by avoiding elements of surprise on the opposite party, Akpelu v. Chukwu (2005) All FWLR (pt. 269) 1852, 1857. He maintained that the appellant, however, decided to err on the side of abundance.
He re-iterated the settled position that the plaintiff in a matter must succeed on the strength of his own case and not on the weakness of the defendant's case, Ibadan Local Govt. Properties Ltd v. Okunade (2005) All FWLR (pt. 271) 154, 156; Baba-Iya v. Sikeli (2005) All FWLR (pt. 289) 1230, 1233; Kolawole v. Olori (2010) All FWLR (pt. 514) 35, 45-46; Yebumot Hotel Ltd v. Okafor (2005) All FWLR (pt. 235) 1889, 1094.
He conceded that he who asserts must prove. He noted, however, that in civil matters, such as the instant case, the onus/burden is not static. He re-echoed the prescription that the onus of proof shifts to the adverse party once the party asserting his right has adduced sufficient evidence that ought, reasonably, to satisfy the court that the fact sought to be proved had been established, Baba-Iya v. Sikeli (supra) at 1233; section 137 (2) of the Evidence Act, 2004 [then applicable]; Igali v. Lawson (2005) All FWLR (pt. 262) 563, 566.
He canvassed the view that where the land in dispute in a claim for declaration of title is claimed to belong to a family, a party who claims he owns the land must prove that he or she had exclusive ownership of the land in dispute and there is strong presumption of family property retaining it character, Tinuoye v. Afolayan (2005) All FWLR (pt. 265) 1157, 1159. He submitted that the essence of the averment in respect of the Lease was to show that the respondent's father entered the property as a tenant or Lessee.
He pointed out that the lower court used exhibit 4, which the appellant tendered, supposedly, in favour of the respondent, page 131 of the record. He explained that exhibit 2 was a letter written by the respondent's father's lawyer. He noted that the said exhibit 2 was not a will of Akobi Odah. He wondered how the appellant's father could divest himself of his interest in the property through or by a letter written by and on the instruction of the respondent father's lawyer.
He averred that exhibit 9 is speculative and or presumptuous. He opined that the law does not permit speculation. He maintained that, except in recognized instances, it [the law], also, does not permit excessive forwardness, Ankpa v. Maikarfi (2000) All FWLR (pt. 506) 1977, 198; Olasope v. Babayo (2005) All FWLR (pt.272) 339, 343; also, Agballah v. Nnamani (2005) All FWLR (pt. 245) 1052, 1080 paragraph H. He urged the court to resolve this issue, also, in favour of the appellant.
Counsel for the respondent, on his part, pointed out that, contrary to the contention of the appellant's counsel, in his paragraph 6(a) of the statement of Defence, the respondent denied paragraph 3 of the appellant's Statement of Claim. He espoused the appellant's contention that, upon his death intestate, Akobi Odah's property became family property for all his children/beneficiaries. Counsel pointed out, however, that the case at hand was different from the circumstances governing that principle of law.
He explained that the property was owned by one Akobi Odah (deceased). He, further, explained that one Christopher Akobi Odah (deceased), who was the heir/successor of Akobi Odah, sold the said property to the defendant's father's Charles Osadebe who disappeared, mysteriously.
Counsel noted that, in his Statement of Defence and evidence before the lower court, the respondent stated that Christopher Akobi Odah leased the property in dispute to his father, Charles Osadebe, for 20 years sometime in 1977, during the life time of Akobi Odah. The latter died in 1978. He pointed out that the respondent, further, contended that the Lessor, Christopher Akobi Odah, sold the property to his (respondent's) father in 1991.
He contended that despite the constructive notice in exhibit 2, the appellant's predecessor failed, neglected and refused to question the status of Christopher Akobi. Rather, he only challenged Christopher Akobi Odah's right to the said property and his status as the heir of Akobi Odah after his [Christopher Akobi Odah's] death.
He observed that the respondent tendered exhibits 5 and 9, 1-19 (Lease Agreement dated 10th December, 1977) without objection. He pointed out that paragraph 4 of the plaintiff's statement of claim was admitted to the extent that Mr. Akobi Odah died intestate. On the other hand, paragraph a (a) and (b) of the statement of claim were denied. He emphasized that the appellant did not join issues with the defendant in the above mentioned paragraph as there was no reply to it.
He deposed that in order to determine whether there was an admission in the defendant's pleading, which would entitle the plaintiff to judgment the court must critically consider the entire statement of Defence, PAN ASIAN AFRICA CO Ltd v. NICON Nig Ltd (1982) 9 SC II at 45-48, 379E. He maintained that the averments of the respondent in paragraphs 6 and 7 of the Statement of Defence could not amount to an admission, but a clear denial of paragraph 4 of the Statement of Claim.
He canvassed the view that, whereas the defendant was expected to deny every material averment in the Statement of Claim, expressly or by necessary implication, he would not be deemed to have admitted a point which, on a holistic reading of his Statement of Defence, it would be clear that he did not intend to admit, Eigbe v. NUT (2006) 16 NWLR (pt.1005) 244, 258-259. Counsel contended that, since the respondent had denied the fact that the property was the property of Akobi Odah's family, the burden of proof did not shift from the appellant.
Counsel pointed out that, in his pleadings and evidence before the lower court, the respondent contended that Christopher Akobi Odah was the Lessor, Donor and Vendor of his father, Charles Osadebe. He canvassed the view that, from the respondent's pleading and evidence on record as to how he [respondent] came to own the property, he [respondent] had, successfully, proved one of the methods of establishing title to land by his overlord, Ekpo v. Ita (1932) 11 NLR 68, Uka v. Iroko (2002) FWLR (pt. 127) 1167, 1191-1192 paragraphs C-D; Idundun v. Okumagba (1976) 9/10 SC 227, 246-250.
He re-iterated his earlier explanation that the respondent's initial entry into the property in dispute was based on the Lease Agreement for twenty years between Christopher Ekunya Akobi Odah and Charles Osadebe dated December 10, 1977, exhibit 5. He maintained that it was not in dispute that the respondent's said initial entry into was as a tenant.
He noted that, from the record, it was obvious that both the appellant and the respondent were claiming title to the land in dispute based on different roots. He opined that the onus was on both sides to prove that they were the exclusive owners of the land, Odunsi v. Pereira (1972) 1 SC 52. In his view, the lower court was, therefore, right in dismissing the plaintiff's case for want of proof. He submitted that the appellant, who was not a party to exhibit 5, could not claim title to the property relying on exhibit 5.
He, also, submitted that the non-tendering of the Lease Agreement purportedly, entered in 1971 between Akobi Odah and the respondent's father, Charles Osadebe, by the appellant was of no moment. He disagreed with the submissions of the appellant's counsel with regard to documents which, though pleaded, were not tendered, particularly, when the defendant denied the existence of such documents, as in the instant case.
He opined that the lease of 1971 which the appellant pleaded but did not tender at the lower court was a mere speculation. He contended that when a document is speculative in content, a court is not entitled to rely on it or make an award or order based on it, Archibong v. Ita  13 NWLR (pt.) 1.
He explained that the respondent's exhibit 5 was the only Lease Agreement that was pleaded, tendered, established and proved at the lower court. He submitted that where there is oral and documentary evidence, the court should use the documentary evidence as a hanger.
He drew attention to pages 129-130 of the record where the lower court summarized the reasons for its findings, quoting the appellant's counsel's address.
He pointed out that Christopher Akobi, to the knowledge of the appellant, did not sign as Manager nor was the document signed for the Landlord as canvassed by the appellant's counsel. He noted that all these dealings were to the knowledge of the appellant who tendered the documents. He urged the court to discountenance the contention of the appellant's counsel that Christopher Akobi was a mere manager.
He observed that exhibit 4, which the appellant tendered, speaks for itself, Egharerba v. Osagie 1980 LRCN 79. He invited the court to hold that the lower court was right in holding that the property, subject matter of the suit, was not a family property. He, also, urged the court to dismiss the appellant's appeal on this ground, issue 2 having failed.
RESOLUTION OF THE ISSUE
From the concatenation of averments (paragraphs 3 (a) and 4 of the statement of claim, pages 3 and 4 of the record); admitted facts in the pleadings (paragraphs 6 (a) and 7 (a) of the statement of Defence, pages 7 and 8 of the record); evidence elicited under cross examination, (see, for example, evidence elicited from DW1 and DW2 in cross examination, pages 54 and 69 of the record), it would appeal to be common ground that the property in dispute was, originally, owned by one Akobi Odah, now deceased. He died intestate.
However, the real controversy would seem to centre on the current status of the said property. The appellant's [plaintiff's] case was that, as property which originally belonged to Akobi Odah, upon his (Akobi Odah's) death intestate, it [the said property] remained family property which inured in favour of his heirs.
On the contrary, the respondent (as defendant) made the case that due to certain developments surrounding the said property (see, for example, exhibit 2), Christopher Akobi Odah, one of the children of Akobi Odah, who, pursuant to the instruction of the said Akobi Odah, managed the said property, even in his father's life time, leased, and later sold, the property to the defendant's father.
The lower court, relying inter alia on exhibit 2, found in favour of the respondent [as defendant]. Instructively, the said exhibit was a letter written by solicitors to the respondent's father. Listen to this:
Now paragraph 5 (of the letter of the solicitors to the respondent's Father):
Before his-death, however, he introduced Mr Christopher Akobi to my office [the Solicitor's office]. He signed several documents for and on behalf of the deceased. He said that all dealing, in connection with this said land should be undertaken by the said Christopher Akobi without whom nothing genuine could be transacted/obtained.
[page 133 of the record]
The lower court construed the above paragraph of the above solicitor's letter as:
A sacred vesting of all rights over the property in dispute on Christopher Akobi, the defendant's father's vendor in (sic) one hand. On the other hand, it is a sacred divesting of the authority or right from any other person or persons including himself over the property in dispute.
(page 133 of the record)
Put simply, the lower court took the view that the said Christopher Akoda derived his root of title to the said property from, inter alia, late Akobi Odah's instructions evident in paragraph 5 of the said solicitor's letter. Expectedly, counsel for the appellant inveighed against the court's findings on the above page. Counsel's submissions on this point are not only pungent; they are, actually, remarkable for their trenchancy. For their bearing on the exposure of the fallacious reasoning of the lower court, we shall set out his effervescent contention in extenso:
Exhibit 2 is a letter written by the respondent's father's lawyer. It was written on the respondent's father's instructions. There is no evidence that the appellant's father [Akobi Odah] or even his brother (sic), Christopher Akobi, was a part of those instructions. Exhibit 2 is not a will of Akobi Odah. However solemn a document may be, it is either a will or it is not. It does not declare itself to be the last testament of Akobi Odah. Nor did he sign it. Not to talk of (sic) the signature being witnessed as required by law.
Neither is exhibit 2 a deed of assignment, gift or partition. How can the appellant's father divest himself of his interest in the property through or by a letter written by and on the instructions of the respondent's father's lawyer? Conversely, how could that have vested - sacred or otherwise - all rights over the property in dispute on Christopher Akoda? ...
With respect, the learned trial Judge's inferences from or conclusion on exhibit 2...are speculative and presumptuous... (pages 23 -24 of the appellant's brief)
In our view, there is no need for voluble comments on the above findings of the lower court: findings which, as counsel for the appellant has graphically shown, are not only repugnant to logic, but must rankle property lawyers who are conversant with the long settled prescriptions on the mode of alienation of family property, even before the commencement of the Land Use Act, 1978, Taiwo v. Ogunsanya (1967) NMLR 375; Akinfolarin v. Akinola (1994) 3 NWLR (pt 355) 659. As the impact of the "consent conundrum" under the Land Use Act was not canvassed by the appellant, we shall leave the matter at that. We resolve this issue in favour of the appellant.
Whether the purported sale of the subject matter of the appellant's suit was not invalid, null and void?
On this final issue, counsel for the appellant prayed in aid Usiobaifo v. Usiobaifo  All FWLR (pt 250) 131, 149 as authority which enunciated the principles governing alienation of family property. He restated the old rule that the sale of a family land by a member of the family, who is not the head of the family, is void. He pointed out that the evidence before the court showed that Christopher Akobi leased and, later, sold the property as his own, not as a member or head or on behalf of Akobi Odah family, citing paragraphs 6, 7 and 8.
He contended that the purported sale was, accordingly, void and ought to have been set aside by the lower court. In his submission, that is because where a family land is not partitioned, it is vested on the family as a whole and any disposition must receive the blessings of the family members, particularly the family Head and the principal members of the family, Essien v. Etukudo (2005) All FWLR (pt. 496) 1886, 1890. He maintained that on no account should such un-partitioned family property be sold as a personal property as the respondent's vendor, purportedly, did in the instant case, Usiobaifo v. Usiobaifo (supra) at 135.
He, finally, submitted that the lower court was wrong to have held otherwise. He urged the court to resolve the third issue in favour of the appellant.
Counsel for the respondent, on the other hand, submitted that the land, the subject matter of the suit that prompted this appeal, had ceased to be family property during the life time of the overall owner, Akobi Odah. He noted that, on the strength of the interest which Akobi Odah vested on Christopher Akobi Odah, he [Christopher Akobi Odah] leased out the property to the respondent's father. He pointed out that, in the instant appeal, the Lease Agreement, exhibit 5, was made in 1977 between Christopher Akobi Odah and Charles Osadebe. Akobi Odah, the appellant's father, died in 1978. He, further, explained that, as at 1977, when exhibit 5 was executed, Akobi Odah, the appellant's father and predecessor, was alive and did not complain.
Counsel drew attention to the contention of the appellant's counsel, page 26, paragraph 6 of the appellant Brief of Argument to the effect that Christopher Akobi leased and later sold the property as his own and not as a member or Head or on behalf of Akobi Odah family, citing exhibits 5, 6, 7, 8 and 9. He observed that the authorities of Essien v. Etukudo (supra) and Usiobaifo v. Usiobaifo (supra), which the appellant's counsel relied on were inapplicable to this case because the said property was leased and sold during the life time of the Vendor without any disputed complaint from the appellant.
He emphasized that a sale is not, automatically, set aside. Whether or not it would be set aside would depend upon the facts and circumstances of the case. He pointed out that exhibit 2, which the appellant tendered, amounts to appellant's admission that Akobi Odah authorized Christopher Akobi Odah to deal with the property and also that Charles Osadebe was introduced to Christopher Akobi Odah with liberty to deal with him.
He re-stated the settled position that civil cases are determined on the preponderance of evidence and balance of probability and that a party who asserts must prove his assertion, otherwise judgment will not be given in his favour, Imana v. Robinson (1979) 3-4 SC; George v. UBA (1972) 8-9; SCC Nig Ltd v. Elemadu (2005) 7 NWLR (pt. 923) 28. He pointed out that the appellant asserted that his root of title was predicated on the Lease Agreement entered into between Akobi Odah and Charles Osadebe in 1971 but failed to produce it in evidence but, instead, relied on the Lease Agreement between Christopher Akobi and Charles Osadebe, exhibit 5 entered in 1977.
He submitted that this court would not to embark on fresh appraisal of evidence when the trial court, unequivocally, evaluated and appraised the evidence before it unless the findings are perverse, Thompson v. Arowolo  7 NWLR (pt. 818) 163; Buhari v. Yakuma (1994) 2 NWLR (pt. 325) 183, 193. He urged the court to dismiss appellant' issue three and hold that the sale of the subject matter of the appellant's suit was not invalid, null and void.
RESOLUTION OF THE ISSUE
As noted above, it is common ground that Akobi Odah, deceased, was the original owner of the disputed property. He died intestate. Both the appellant; the respondent and, at least, one of the respondent's witnesses, namely, DW2, were ad idem on this. Just one instance may be cited here.
At page 54 of the record, the respondent, testifying as DW1 stated inter alia that "the property was owned by one Akobi Odah." Dw2, under cross examination, page 69 of the record, conceded that the "original owner is (sic) Akobi Odah." This was the case which the appellant made in his pleading.
Thus, the above evidence elicited from DW2 on that fact that was pleaded was admissible, Adeosun v. Gov of Ekiti State  All FWLR (pt 619) 1044, 1059; Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (pt 1181) 338; 351; 353-354. It would have been otherwise if that fact elicited in cross examination was not pleaded, Okwejiminor v. Gbakeji (2008) All FWLR (pt 408) 405; Dina v. New Nigeria Newspapers Ltd (1986) 2 NWLR (pt 22) 353; Agnocha v. Agnocha  4 NWLR (pt 37) 366; Punch Nigeria Ltd v. Enyina  17 NWLR (pt 741) 228; SPDC v. Anaro (2000) 10 NWLR (pt 675) 248; Ita v. Ekpeyong  1 NWLR (pt 695) 587; Isheno v. Julius Berger Nig Plc  14 NWLR (pt 840) 289, 304; Ojo v. Kamalu (2005) 18 NWLR (pt 958) 523,548; Woluchem v. Gudi (1981) 5 SC 291, 320; Ewarami v. ACB Ltd (1978) 4 SC 99, 108.
The respondent's case, however, was that the said property, had ceased to be family property during the life time of the overall owner, Akobi Odah. He maintained that even from the exhibits which he [respondent] tendered, mainly, the lease agreement, exhibit 5, the said Christopher Akobi leased the said property, not as family property but as his. Indeed, according to the respondent's counsel (page 4 of the brief) the respondent gave evidence that sometime in 1977, his father Charles Osadebe entered into a twenty year lease agreement with one Christopher Akobi and not Akobi Odah, the appellant's father, over the property situate at No 20 New Market Road, Okuku, Ogoja. According to the respondent, the lease was still subsisting when Christopher Akobi, the lessor, sold the property to his father...Now, there was evidence before the lower court that the property was originally owned by Akobi Odah. He died intestate. The respondent was unable to show how the property of Akobi Odah, who died intestate, devolved exclusively on Christopher Akobi, one of the children of the deceased, Tinuoye v. Afolayan  All FWLR (pt 265) 1157, 1159. In circumstances, such as painted above, the law, even before the promulgation of the Land Use Act, had taken the view that such a lease to the respondent's father, Ekpendu v. Erika (1959) 4 FSC 79; the subsequent sale, Esan v. Faro 12 WACA 135, of late Akobi Odah's property by Christopher Akobi, without the concurrence of the principal members of Akobi Odah's family, was not only voidable, Ojoh v. Kamalu  18 NWLR (pt 959) 523; Esan v. Faro (supra); Mogaji v. Nuga (1960) 5 FSC 107; but, having regard to its, purported, alienation by Christopher Akobi as its actual owner, the sale was, indeed, void.
The cases on this point are many. We shall only cite one or two of them here, Adejumo v. Ayantegbe  3 NWLR (pt 10) 147, 448; Ejikeme v. Okpara and Anor  9 NWLR (Pt 826) 536; Solomon and Ors v. Mogaji  11 SC 1, see, generally, I. O. Smith, Practical Approach to Law of Real Property in Nigeria (second edition) (Lagos: Ecowatch Publications (Nig) Ltd, 2007) 78 et seq; I. A. Umezulike, ABC of Contemporary Land Law in Nigeria (Enugu: SNMP Press Nig Ltd, 2013) 282 et seq.
We, actually, find it intriguing that, almost thirty six years into the life of the Land Use Act, matters such as the validity of the sale of real property in 1991 could be agitated without any reference to the impact of the said Act on such transactions. At the lower court, the respondent's case was that Christopher Akobi sold the property in dispute to his [respondent's] father in 1991, that is, almost thirteen years into the life of the said Land Use Act.
Be that as it may, we have to remind ourselves here that the parties did not canvass this issue. We are aware of our handicap in this regard: we are not permitted the indulgence of raising it and resolving it suo motu, that is, without the prompting of any of the litigants in the case and without reference to counsel, Adegoke v. Adibi (1992) 5 NWLR (pt 242) 410; Atanda v. Lakanmi (1974) 3 SC 109; Odiase v. Agho (1972) 3 SC 71; Kraus T. Org. Ltd v. UNICAL (2004) 25 WRN 1, 17; Adeniji v. Adeniji (1972) 4 SC 10; Commissioner for Works, Benue State and Anor v. Devcom Development society Ltd (1988) 3 NWLR (pt 83) 407; NHDS Ltd and Anor v. Mumuni (1977) 2 SC 57; (1977) NSCC 65.
We shall, therefore, not hazard any opinion on the effect of the said Act on the purported sale of 1991 notwithstanding our acquaintance with the complex trajectory of the jurisprudence on the "consent conundrum" under the said Act ever since the decision of the apex court in Savannah Bank v. Ajilo  1 NSCC 135; Union Bank of Nigeria Plc v. Astra Builders (WA) Ltd (2010) All FWLR (pt 518) 865, 885- 886; Union Bank of Nig Ltd v. Ayodare and Sons Nig Ltd (2007) 13 NWLR (pt 1052) 567; Olalomi Industries Ltd v. N. I. D. B.  29 NSCQR 240; International Textile (Nig) Ltd v. Aderemi and ors (1996) 8 NWLR (pt 464) 15, 42; Brosette v. Ilemobola and Ors (2008) 154 LRCN 64-109; Yaro v. Arewa Construction and Ors (2008) 154 LRCN 163-217; Calabar Central Co-operative and Ors v. Ekpo (2008) All FWLR (pt 418) 198-244, just to mention a handful of cases.
In all, we find considerable merit in the appellant's complaint against the findings of the lower court. We resolve this issue in his favour. Having resolved all the issues in his favour, we find that we have to, and we hereby, allow this appeal. In consequence, we enter an order vacating the judgment of the lower court delivered on May 27, 2009.
MOHAMMED LAWAL GARBA, J.C.A.:
I have read a draft of the lead judgment delivered by my learned brother, Chima Centus Nweze, JCA, in this appeal. The three (3) submitted for determination by the learned counsel have been fully considered in the lead judgment and I agree with views expressed and reasons for the conclusions on the issues.
I want to emphasize that being admittedly, family land, the land in dispute could not have been validly sold by a member of the family as a private property, as was allegedly done by Christopher Akobi, the Appellants' brother, to the Respondent's father. If a valid sale was to be made, then the prior consent of all the principal members of the family, particularly the head of the family, had to be given. See Solomon v. Magaji (1982) 11 SC, 1 at 1-10; Alao v. Ajani (1989) 6 SC (Pt. II) 132. However in Kalio v. Woluchem (1985) 3 SC, 109, (85) NWLR (4) 10, it was held by the Supreme Court that:-
"It is trite law that sale of family land by the head of the family without the consent of the principal members of the family, is voidable."
Christopher Akobi was not alleged to be the head of the family at the time he allegedly sold the land in question to Respondent's father and so the purported sale was not only voidable, but void. See Oyebanji v. Okunola (1968) NMLR, 221; Akerele v. Atunrase (1968) 1 ALL NR, 201; Lucan v. Ogunsusi (1972) ALL NLR (Pt. 2) 41; Atunrase v. Sunmola (1985) 1 NWLR (1), 105; Mohammed v. Klargester Nig. Ltd. (2002) 14 NWLR (787) 335, (02) 7 SC (Pt. II) 1; Falaju v. Amosu (1983) LPELR 1234; Ekpendu v. Erika (1989) 4 FSC, 79.
On the issue of laches and acquiescence, being equitable defences, as demonstrated in the lead judgment for a party to rely on them, he must in law, specifically plead and prove them as required by law in order to avail himself of them. See Iheanacho v. Ejiogu (1995) 4 NWLR (389) 324; Alakija v. Abdulai (1998) 6 NWLR (552) 1; Alabi v. Doherty (2005) 18 NWLR (957) 422. Since the Respondent did not specifically plead the special defences and proved same as required by law, the defences were not available to him.
The pleading in paragraph 25 of the Respondent's statement of defence that he intended to rely on all legal and equitable defences, is otiose, at large and not a positive assertion to rely on any particular legal and/or equitable defence capable of a specific denial, for issues to be joined by the parties on any defence.
For the above and more elaborate reasons set out in the lead judgment, I too, find merit in the appeal and allow it in the terms thereof.
UGO I. NDUKWE-ANYANWU, J.C.A.:
I had the privilege of reading in draft from the judgment just delivered by my learned brother Chima Centus Nweze, JCA.
I am in total agreement with the resolution of the three issues articulated by the Appellant which are all resolved in his favour. This appeal is meritorious and therefore allowed. I abide by all the orders contained in the lead judgment.