➥ CASE SUMMARY OF:
Chief Joseph Abraham v Ishau Amusa Olorunfunmi (1990) – CA
by Branham Chima (SAL).
Court of Appeal – CA/L/83/89
➥ JUDGEMENT DELIVERED ON:
Tuesday, 4th Day of December, 1990
➥ AREA(S) OF LAW
Partition of land;
➥ PRINCIPLES OF LAW
⦿ AMENDMENT OF PLEADINGS – PARTY WILL NOT BE DISALLOWED
Let me pause here to say one or two words on amendment of pleadings. Amendment of pleadings is part of the judicial process and we cannot run away from it. We cannot even avoid it. The courts are mostly receptive to applications for amendment. They accommodate applications for amendment most of the time. Apart from the understandably relaxed and accommodating nature of our adjectival Law on the issue, courts of law, by their nature and institutional upbringing are reluctant and loath to shut their gates against willing litigants midstream in the presentation of their claims and rights in terms of available facts. Since that is not consistent with the basic rules of fair hearing and natural justice, the courts, in most cases, grant applications for amendment of pleadings. — Tobi, JCA.
⦿ FOUR REASONS WHY AMENDMENT OF PLEADINGS MAY ARISE
Amendments arise because of a number of reasons. I can identify four main reasons here. First, at the time of filing the pleadings, the factual situation sought to be amended was not available or if available was not within the reasonable anticipation of the party and his counsel, employing all diligence and intellectual resources at their command. Second, although the factual situation sought to be amended existed at the time the pleadings were filed, human idiosyncrasies, human lapses and human frailties resulted in its non-inclusion. This could either be the fault of the party or counsel or both. . Third, when there is a Reply to either the Statement of Claim or the Statement of Defence. Four, when the court suo motu raises a factual situation. Since this last reason is not consistent with our adversary system, a trial Judge should only resort to it when it is absolutely necessary so to do and in the overall interest of the parties. He cannot do so willy nilly and by his whims. — Tobi, JCA.
⦿ HOW APPLICATIONS FOR AMENDMENTS OF PLEADINGS MAY BE REDUCED
While applications for amendments cannot be totally avoided in the judicial process, they could be reduced to a manageable level, as opposed to the present trend where they are in annoying proliferation. Let me proffer some solutions. And I think they can help to some extent, if not to all extent. Litigants and counsel who do their work diligently will certainly reduce the frequent applications for amendment. So much of it can be avoided if both counsel and his client are intimately involved in pre-trial factual investigations and inquiries before going into litigation and filing their pleadings. Counsel, on his part, can reduce the frequency of applications for amendment if he takes pains during chamber pre-litigation interviews, to ask and seek for relevant information, oral and documentary, from the client. There is also the collateral aspect of the matter and it is this. The client on his part, has a duty to surrender all the facts of the case and I really mean all the facts of the case (including incriminating and exculpating evidence) to his counsel. I say this because one of the basic causes of frequent application for amendment is that some clients are of the habit of dishing out half truths to their counsel or deliberately give facts in installments, only to get stock in open court to the embarrassment of counsel. That is not right. No party has any right to either adulterate the facts of a case or give facts to counsel piece meal. — Tobi, JCA.
⦿ A DOUBLE BARRELED ISSUE
Let me take the first issue, which looks to me a double – barrelled one. I say this because it involves both adjectival law as well as substantive law. — Tobi, JCA.
⦿ FUNDAMENTAL AIM OF PLEADINGS
One fundamental aim of pleadings is to give notice to the adverse party of what he is going to meet at the trial. He should not be kept in the limbo. He should not be in dark. He should not be kept in abeyance. He is entitled to know the case of the opponent well before trial commences. And so when a part;, states his case in his pleadings, he cannot depart from it, unless the court allows him to do so. And the court can allow him to so depart by allowing an amendment to the original pleadings. And this must be based on an application. If parties are allowed to move in and out of their pleadings at will, the litigation will be more of a game of speculation, particularly as it relates to the facts relied upon by parties. If parties are allowed to move in and out of their pleadings, then there will be no end to litigation as they can freely introduce mid-stream any issue not pleaded to the disadvantage and surprise of the adverse party. That will be over-reaching the adverse party. That is not right. No, not at all. — Tobi, JCA.
⦿ PLEADING, IS PLEADING FACTS UPON WHICH A LAW CAN STAND ON
While I come to the conclusion that the appellants did not plead co-ownership, I should not be taken as making the point that they should have included in their pleadings, the legal word of co-ownership or its synonym joint-ownership. That is not what I mean. As a matter of law, a party cannot plead law in his pleadings. Although there are exceptions here and there to this general principle of law, particularly as it relates to the plea of some specific defences to certain actions, the matter before me, does not extend to that. All that the appellants were expected to do was to plead enough facts upon which the law of co-ownership can stand and keep its shoulders high, awaiting the lawyer to replenish it with either statutory authorities or decided case. But that was not done here, and the trial Judge, could not have supplied it. — Tobi, JCA.
⦿ TO SUCCEED IN LAND PARTITION, PARTY MUST PROVE CO-OWNERSHIP
Yoruba customary law recognises partition as one way of alienating family property. The case law is in great proliferation see for example Lewis v. Bankole (1908) 1 N.L.R. 82, Sale v. Ajisegiri 13 N.L.R. 146. In the Matter of the Estate of Edward Forshter (1988) 14 N.L.R. 83; Alhaji Olowosago and Others v. Alhaji Adebanjo and others (1988) 4 N.W.L.R. (Pt.88) 275. But before a plaintiff asks for partition he must first prove that the property concerned is family property and not the exclusive property of the defendant. He must also prove that he is a member of that family. In order to succeed in an action for partition, it is not enough to prove that the property is family property without establishing the legal nexus between the plaintiff and the property in question. A mere stranger cannot successfully sustain an action for partition of family property. He will be regarded as an intruder or a busybody. Therefore, before a plaintiff institutes an action for partition, he must prove ownership or title to the land. Ownership is a multi-referential word which does not lend itself easily to an apt or precise definition. And what is more, the issue becomes much more complex when the word is to be defined in the context of customary Land Law, such as the position we have in this matter. — Tobi, JCA.
⦿ GENERAL MEANING OF OWNERSHIP
Generally speaking, ownership connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. It connotes a complete and total right over a property. The owner of the property is not subject to the right of another person. Because he is the owner, he has the full and final right of alienation or disposition of the property. And he exercises this right of alienation and disposition without seeking the consent of another party because as a matter of law and fact there is no other party’s right over the property that is higher than that of his. He has the inalienable right to sell the property at any price, even at a give away price. He can even give it out gratis, that is for no consideration. The owner of a property can use it for any purpose; material, immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose which is detrimental to his personal or proprietary interest. In so far as the property is his and inheres in him nobody can say anything. He is the alpha and omega of the property. The property begins with him and also ends with him. Unless he transfers his ownership over the property to a third party, he remains the allodial owner. — Tobi, JCA.
⦿ THE WORD “CO” IN CO-OWNERSHIP
The word “Co” coming before the word Ownership contextually does not mean an abbreviation for company. The epithet, when used along with the word ownership has the connotation of joint-ownership. In the context of joint-ownership, the definition given above will apply mutatis mutandis to the joint owners of the property inter se. And in the context of the appellants claim, the property is owned by them and the respondents jointly. That is their claim and remains their claim. — Tobi, JCA.
⦿ BEFORE THE COURT CAN ORDER PARTITION, THERE MUST BE PROVE OF CO-OWNERSHIP
It is clear from the above definition that the forerunner of partition is co-ownership. That is, before a court of law can order the partition of property, there must be proof of co-ownership. The proof of co-ownership is in my view, similar to the proof of joint ownership or joint title to land. And this takes us to the five ways of proving title to land as enunciated in Idudun v. Okumagba (1976) 9-10 S.C.277, (1976) 1 N. M. L. R. 200. — Tobi, JCA.
⦿ TRADITIONAL EVIDENCE THAT LAND IS JOINTLY OWNED IS PROOF OF CO-OWNERSHIP
For example where there is convincing traditional evidence that the land is jointly owned or commonly owned by the parties, a case of co-ownership is proved. Similarly if the plaintiff tenders documents which are jointly authenticated or jointly executed by the co-owners, a case of co-ownership is proved. So also is evidence of joint possession. But, evidence of family genealogy, or traditional history, without more, cannot be held to be sufficient evidence of co-ownership. — Tobi, JCA.
⦿ WEIGHT OF AN AFFIDAVIT EVIDENCE OF TITLE TO LAND
I turn to Exhibit 2. It is an affidavit deposing to title. An affidavit evidence of title to land is not sacrosanct, evidential value wise. Such deposition can only be admissible if it is not challenged by the adverse party. If the deposition is challenged, then the parties have joined issues and the onus is on the deponent or any other witness as the case may be, to prove by oral evidence the veracity or authenticity of the deposition. Exhibit 2 is yet another evidence of traditional history which unfortunately the learned trial Judge, from the totality of the oral evidences before him, rejected. I therefore hold that Exhibit 2 does not have any probative value of any record found therein. — Tobi, JCA.
⦿ EXHIBITS ADMITTED AND MARKED CAN BE USED
The law is most elementary that a court of law is most competent to make use of exhibits admitted and marked. — Tobi, JCA.
⦿ TRIAL JUDGE SHOULD NOT RELY ON ORIGINAL STATEMENT OF DEFENCE WHEN THERE IS AN AMENDMENT
Madam Salami and others v. Oke (1987) 4 NWLR (Pt.63) 1. Both counsel relied on this case. In this case, the Supreme Court held that there is nothing fundamentally wrong with a trial Judge merely referring to an original Statement of Defence. However, there is everything wrong with the trial Judge relying on original Statement of Defence to arrive at the live issues in a case where there exists an Amended Statement of Defence. That was the lead judgment of Kawu, J.S.C. In my view, if an amendment relates to the real question in controversy, a trial Judge has no jurisdiction to ignore it and fall back on the original pleadings which are contrary to the amended pleadings. The original pleadings have been overtaken by events and should be so treated. But I see nothing wrong in a trial Judge making reference to original pleadings in the course of his judgment. What should guide an appellate court is whether from the totality of the judgment of the learned trial Judge, he was influenced by the affidavits in previous interlocutory proceedings which are not relevant in arriving at findings and final decisions. — Tobi, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
H.A. Lardner, S.A.N.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
On 22nd December, 1976, the Supreme Court gave judgment in a compensation matter involving damage to land. That was in suit No.SC.398/75. National Electric Power Authority (NEPA) were the defendants/appellants. Mudasiru Amusa and Ayinde Amodu were the plaintiffs/respondents. They instituted the action for themselves and on behalf of all other members of Madarikan Family of Idimu village in Lagos State. It was a family land. Damage was done to the land. This was as a result of the planting of NEPA pillars for their power lines. The pillars did the damage. The plaintiffs/respondents in that suit, sued. The Supreme Court gave them judgment. The court awarded them N95,000 as compensation. Fatayi-Williams, J.S.C. (as he then was) read the lead judgment.
That 1976 judgment generated this action. There was some money. The plaintiffs/appellants saw in the award ‘community’ money. And this to them, covered and extended to the Kumoko Family. To them, it cannot be an exclusively Madarikan Family Affair. And so they sued: They asked for a number of reliefs but the fulcrum of it all was the N95,000 NEPA compensation. They needed part of it. They were specific as to what they regarded as their share. They needed half of it. And this was N47,500.00. They asked for the following reliefs, inter alia: “(1) The partition of all that piece or parcel of land known as ONIGBEYIN FAMILY land at IDIMU, AGEGE, LAGOS STATE of Nigeria, the Survey Plan No.AAW/L/598/84 of which is attached, and the substantial parts of which land the defendants have sold, leased or alienated without the knowledge, authority and consent of the plaintiffs; (2) An Order compelling the defendants to pay into court within five days of the judgment of this suit, the sum of N47,500.00 (forty seven thousand, five hundred naira) being half share due to the plaintiffs out of the N95,000.00 compensation awarded by the Supreme Court in suit No. 398/75.”
The important thing is that the defendants/respondents did not agree that the plaintiffs/appellants were entitled to any relief, including the half share of the N95,000 compensation they asked for. To them, the land on which NEPA paid compensation was that of their family. The defendants/respondents had no rights on it. They therefore joined issues with them. And this was, as usual, from the pleadings stage. Both parties duly filed their pleadings. These were exchanged and the matter went to trial.
➥ ISSUE(S) & RESOLUTION(S)
- Whether where a plaintiff pleads facts showing that a particular land was owned originally by a common ancestor of both parties (and as such the family property of both parties), is it not wrong for the court to refuse a claim for the partition of the land on the basis that co-ownership or joint ownership of the land with the defendants was not pleaded by the plaintiff?
RULING: IN RESPONDENT’S FAVOUR.
A. PARTIES ARE BOUND BY THEIR PLEADINGS
“The first basic principle of the law of pleadings is that parties are bound by their pleadings. They cannot move out of their pleadings. They cannot abandon their pleadings and make a case completely different from their pleadings. They cannot detract from their pleadings at will and in the exercise of the spontaneous dictates of their will. See Nkanu v. Onun (1977) 5 S.C. 13, Ekpoke v. Usilo (1978) 6-7 S.C. 187. Abaye v. Ofili (1986) 1 N.W.L.R. (Pi.15)134, Mohammed v. Ali (1989) 2 N.W.L.R. (Pt.103) 349. Flowing from the above basic principle is the further principle that facts not pleaded go to no issue. The trial Judge has no business with such facts. He cannot make use of them in his judgment. They are moribund and of no probative value. See generally Total v. Nwako (1978) 5 S.C. 1, African Continental Bank v. Attorney-General of Northern Nigeria (1967) N.M.L.R. 231, Egonu v. Egonu (1978) 11-12 S.C. 111, Piaro v. Tenalo (1976) 12 S.C. 31.”
B. THE PLAINTIFF/APPELLANT DID NOT PLEAD CO-OWNERSHIP IN THEIR PLEADINGS
“What paragraph or paragraphs could the learned trial Judge have relied upon in respect of the claim of co-ownership or joint-ownership? I am afraid, I do not see any of the averments in the Amended Statement of Claim that can lay an unequivocal claim to co-ownership or joint-ownership. It is not my understanding of the law that pleadings on family genealogy per se is tantamount to co-ownership or joint-ownership. In my humble view, it is not enough to narrate a genealogical story by way of traditional history to found a claim on co-ownership. If all that the appellants needed to plead to found a claim on co-ownership, was a genealogical story without more, then the concept of co-ownership has lost not only its etymological meaning but also its legal meaning and purpose in our property law. It is certainly much more than a narration of a genealogical story. What is required, in my view, is to relate the traditional history to the practical situation, where the parties have, by specific overt acts, used the land in dispute in common as joint owners and to their common and joint advantage. I do not see any such evidence here. The learned trial Judge did not see any such evidence also. In the circumstances, the learned trial Judge, was correct, when he said: ‘From the foregoing the plaintiffs have not pleaded the essential and material fact of co-ownership with the defendants a fact which is a condition precedent to a claim for partition of land.’”
C. TRIAL JUDGE MUST CONFINE HIMSELF TO THE PLEADINGS
“Similarly, it is not the judicial function of a Judge to suo motu make a case for the parties. Where issues are not joined, the Judge should not go into them. He must confine himself only to the issues before him. And the issues must in the first place be raised in the pleadings. In my view, the learned trial Judge was right when he found that the issue of co-ownership was not pleaded. He is correct, and I so hold.”
- Whether the approach of the learned trial Judge to the evidence and the pleadings is not contrary to the Odofin and Ajiboye cases? AND 4. Whether the imaginary scale can be evenly weighted in respect of an issue on which it is correct in law that where the imaginary scale is evenly weighted on an issue the plaintiffs’ case had failed? AND 5. Whether the judgment is not against the weight of evidence and some of the findings of the learned trial Judge are not improper and wrong?
RULING: IN RESPONDENT’S FAVOUR.
A. THE WRITING OF JUDGEMENT IS A MATTER OF STYLE OF THE JUDGE
“One major and central complaint of counsel is in respect of the way the learned trial Judge wrote his judgment vis-à-vis his evaluation of the totality of the evidence before him. While I agree that a judgment should have certain vital features and characteristics, I do not believe that a trial Judge must be regimented to a strictly laid down pattern beyond which he can only go on pain of punishment by way of setting his judgment aside on appeal. A trial Judge is not a child in a kindergarten class who must be led by the nose and the hands to write or recite a rhyme in unison or in union to the strictest details of the words and the letters and the punctuation marks. It should not be so. A trial Judge, the highly respected professional that he is should be given some freedom in the method of writing his own judgment. After all, writing of judgment is a matter of the personal style of the individual Judge. A Judge can develop his own “house” style and as long as that style is not outrageous, an appellate court cannot raise its eyebrows. Although it is neater to follow some generally set down pattern and methodology in the judgment writing process, an appellate court, in my humble view, is not competent to throw out a judgment of a trial Judge merely because it failed to follow the set down procedure. What an appellate court should be interested in, is whether from the entire judgment, justice has been done to the parties and in considering this package of justice, an appellate court should not be myopically interested in pockets of irregularities in the judgment but the totality of it all. I should perhaps go further to make the point that once the trial Judge has been able to bring out clearly the issues for determination, the case of the parties adequately summarised without any detestable embellishments, the argument of counsel and a careful and unbiased evaluation of the evidence, a judgment should not be subjected to an appellate attack to the extent that it must be thrown out.”
B. JUSTICE WAS DONE TO THE PARTIES
“While I concede the point that the method adopted by the learned trial Judge was not the most elegant, I am of opinion that justice was done to the parties. I do not agree that the learned trial Judge wrongly evaluated the facts before him. He did not. He dispassionately evaluated the facts before him and arrived at findings which were clearly borne out from the evidence in court. Learned counsel has urged us to interfere with the findings of the learned trial Judge. I cannot do so. This court has not the eagle eyes of the trial court to watch the demeanour and actions and inactions of witnesses in the witness box. This court has not the loud ears to hear the evidence of witnesses in the witness box. And so this court has to rely on the findings of fact of the learned trial Judge, unless wrong inferences have been drawn (see Ugwu v. Ogbuzum (1974) 10 S.C. 191) or the findings of fact are perverse (see Ajuwa and others v. Odili (1985) 2 N.W.L.R. (Pt.9) 710; Ebba v. Ogodo (1984) 1 SCNLR 372; Akire v. Obaseki and others (1986) 1 NWLR (Pt. 19) 735.”
“It is trite law that in land matters, in particular, the plaintiff cannot rely on the weakness of the case of the defendant, but must rely on the strength of his own case. This is because the weakness of the defendant’s case cannot, as a matter of general principle, add strength or credibility to the case of the plaintiff. The plaintiff has to stand or fall by his own case. In view of the fact that the appellants failed to prove their case in the lower court, this appeal fails. I therefore dismiss it accordingly. I award N450 costs in favour of the respondents.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ FIVE WAYS OWNERSHIP OF LAND MAY BE PROVED
Idudun v. Okumagba (1976) 9-10 S.C.277, (1976) 1 N. M. L. R. 200, as follows: (1) By traditional evidence; (2) By production of documents of title duly authenticated and executed! (3) By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership; (4) By acts of long possession and enjoyment and (5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See also Mogaji and others v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393. Fasaro and Another v. Beyioku and others (1988) 2 NWLR (Pt.76) 263. Okonkwo v. Okolo (1988) 2 NWLR (Pt.79) 632. I think a party can use the above five ways to prove co-ownership by leading evidence to establish joint or common rights over the land.
➥ REFERENCED (OTHERS)