LAWAL GARBA, UZO I. NDUKWE-ANYANWU, CHIMA CENTUS
brief treated as argued
Ekpa - for Respondent
LAW- what constitutes valid sale of family land
DOCTRINES- laches and acquiescence- whether
available as a matter of cause
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
Declaration that the plaintiff is the heir at
law to Akobi Odah, deceased;
Declaration that the plaintiff is entitled to
take over and/or manage the property situate at
No 20 New Market Road, Okuku, Ogoja;
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.
judgment, delivered on May 27, 2009, the lower
court dismissed the plaintiff's case, hence,
this appeal to this court.
the defences of laches and acquiescence are
which must be "specifically pleaded"
the subsequent sale, 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 but, having
regard to its, purported, alienation by
Christopher Akobi as its actual owner, the sale
was, indeed, void.
v. Klargester Nig. Ltd. (2002) 14 NWLR (787)
335, (02) 7 SC (Pt. II) 1
v. Amosu (1983) LPELR 1234
Iheanacho v. Ejiogu (1995) 4 NWLR (389) 324
v. Abdulai (1998) 6 NWLR (552) 1
v. Doherty (2005) 18 NWLR (957) 422
NWEZE, J.C.A. (Delivering the Leading Judgment):
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:
Declaration that the plaintiff is the heir at law to
Akobi Odah, deceased;
Declaration that the plaintiff is entitled to take over
and/or manage the property situate at No 20 New Market
Road, Okuku, Ogoja;
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.
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
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,
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,
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,
As indicated above, the appellant set out three issues
for the determination of his appeal. The issues were
framed in these terms:
the appellant's case before the lower court was
incompetent as to rob that court of jurisdiction?
the learned trial Judge was right in holding that the
property, subject matter of the suit, was not a family
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?
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
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
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.
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
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
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.
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.
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
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
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:
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
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.
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
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.
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
 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
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
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
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.
Ltd v. Okunade (2005) All FWLR (pt. 271)
154, 156; Baba-Iya
v. Sikeli (2005) All FWLR (pt. 289) 1230,
v. Olori (2010) All FWLR (pt. 514) 35,
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
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
ASIANAFRICA 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.
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
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
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
[page 133 of the record]
The lower court
construed the above paragraph of the above solicitor's
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
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? ...
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
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.
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.
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)
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,
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.
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."
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.
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
(A Justice Sector Social Enterprise)