➥ CASE SUMMARY OF:
Madam Mary Alabi v Abdulkarim Abogunde Audu (2017) – CA
by Branham Chima (SAL).
Court of Appeal – CA/A/494/2014
➥ JUDGEMENT DELIVERED ON:
30th June 2017
➥ AREA(S) OF LAW
Title to land;
Proof of custom.
➥ PRINCIPLES OF LAW
⦿ NATIVE LAW AND CUSTOM MUST BE PLEADED
The burden of proof of customary law is on the party asserting its existence. See Usibiafo v. Usibiafo (2005) 3 NWLR (Pt.913) 665 at 684; Sokwo v. Kpongbo (supra). It has been established through plethora of cases that it is extremely important that native law and custom must be pleaded and strictly proved by credible evidence. This case is not predicated on proof by the mode of judicial notice, but by proof of evidence. — T. Akomolafe-Wilson, JCA.
⦿ THE PRIMARY PURPOSE OF PLEADINGS IN A TRIAL
The primary purpose of pleadings is to prepare the minds of the parties and the Court to know the case to be presented at the trial by each party, and to define and delimit with clarity and precision the real matters in controversy between the parties upon which to prepare and present their respective cases. It is designed to bring the parties to an issue upon which the Court will adjudicate between them. See Kyari v. Alkali (2001) 11 NWLR (Pt.724) 412 at 433-434 paras. H-A. It is therefore of utmost importance that both parties be comprehensive and accurate in their pleadings. In that regard, a plaintiff’s averment of facts must be met by the defendant frontally and categorically. The essential averments in the statement of claim should be specifically traversed. In order to raise any issue of fact, there must be a proper traverse; and a traverse must be made either by a clear denial or non-admission, either expressly or by necessary implication. A denial of a very material allegation of fact must not be general or evasive, but specific. Therefore, every allegation of fact, if not denied specifically or by necessary implication shall be taken as admitted and established. Putting it in a different way, where a party fails to join issues on material averments, he is deemed to have conceded the points made in those averments. They are deemed admitted and need no further proof to establish the facts contained in the pleading. See Ekperanisho v. Aloko (2015) 14 NWLR (Pt.1475) 153; Salzgitter Stahi GMBH v. Tanji Dosunmu Industries Ltd. (2010) NSCQR 1085 (2010) 11 NWLR (Pt.1206) 589. See Ekwealor v. Obasi (1990) 2 NWLR (Pt.131) 231 at 251, Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.654) 298 at 337. — T. Akomolafe-Wilson, JCA.
⦿ GENERAL TRAVERSE IS NOT ADMISSIBLE AS EFFECTIVE DENIAL OF ALLEGATIONS
It has long been settled that the general traverse or general denial usually contained in the first paragraph of every statement of defence as in the instant case, which has earlier been quoted above, is not admissible as effective denial of essential and material allegations in the statement of claim. Such essential materials, as averments concerning the root of title of the claimant should be specifically traversed. See Akintola v. Solano (1986) 2 NWLR (Pt.24) 598, Balogun v. UBA (1992) 7 SCNJ 61, Ajibulu v. Ajayi (2013) 56 NSCQR 471, UBN v. Chimaeze (2014) 58 NSCQR 155 at 188 … The general denial in paragraph 2 of the statement of defence also does not amount to a positive denial in law. It is devoid of joining issue on the material important pleading, upon which the respondent lays claim to the property in dispute. By the established rules of pleadings, the respondent is therefore deemed to have admitted the averments. One of the functions of pleadings is to afford parties in the case adequate notice of the nature of their respective cases to each other; thereby circumscribing and fixing issues in respect of which they are in agreement and those in which they are contesting. In as much as the appellant failed to controvert the relevant pleadings of the respondent on the issue of custom of inheritance, it is deemed that there is no controversy between them on the issue of inheritance under Ebira Native Law and Custom. It is taken as having been established and needs no further proof. See Section 123 of the Evidence Act, 2011 as amended; National Investment v. Thompson Organizations and Ors (1969) 1 NMLR 99 at 103, Uredi v. Dada (1988) 1 NWLR (Pt.69) 237 S.C Jacobson Eng. Ltd. v. UBA Ltd. (1993) 3 NWLR (Pt.283) 586. — T. Akomolafe-Wilson, JCA.
⦿ DOCTRINE OF LACHES AND ACQUIESCENCE BARS A PERSON
The doctrine of laches and acquiescence are equitable defences which operate to bar a person who has slept over his right for a long period of time from asserting his said right against an innocent party. The Courts have always refused aid for stale demand, where a party slept over his right. See Alhaji Oduola and Ors. v. Ibadan City Council and Anor. (1978) 4 SC 59; Igbum v. Nyarinya (2001) FWLR (pt.67) 950 at 975. It is trite principle of law that any party relying on the defence of laches must state the fact in his pleadings. — T. Akomolafe-Wilson, JCA.
⦿ ISSUES ARE IMPLIEDLY JOINED ON STATEMENT OF DEFENCE
The facts constituting the defence of laches and acquiescence can be gleaned from paragraphs 13, 14, 19, 24, 29, 31, 32, 42 and 48 of the Statement of defence of the defendant/appellant. The contention of the appellant is that the weighty averments made in these paragraphs were not in any way controverted by the plaintiff/respondent. It is trite principle of law that any fact in a pleading that is not denied or controverted is deemed admitted. However, where issues have been joined between the parties by the averments in the statement of defence, a reply on any such issue joined is unnecessary. — T. Akomolafe-Wilson, JCA.
⦿ PLEADINGS ARE CLOSED WHEN PARTIES JOIN ISSUES – REPLY MAY BE UNNECESSARY
Pleadings are closed when parties join issues in a case. Where both the statement of claim and the statement of defence do not bring the parties to issue on all the claims, the plaintiff shall file a reply. However, where no counter-claim is filed, further pleadings by way of reply to a statement of defence is unnecessary if the sole purpose is to deny the averments in the statement of defence. SeeIshola v. S.G.B. (Nig.) Ltd. (1997) 2 NWLR (Pt. 488) 405 SC. In Egesumba v. Onuzuryike (2002) 15 NWLR (Pt.791) 466 at 499 Ayoola JSC, expatiated thus “Where, of course, the plaintiff seeks to contradict the allegations in the statement of defence not merely by traverse but by raising issues of fact which would take the defendant by surprise, he should raise such issues by a reply. But, even then, the consequence of his not so raising it is not that he is taken to have admitted the truth of the allegations of fact in the statement of defence so as to free the defendant from the obligation to lead evidence in proof of what he alleges, but to deprive the plaintiff from adducing evidence of facts not pleaded or already raised by the pleadings as they stand. Tobi JSC at p. 519 of the report also clarified that:- “(iv) In order to allow a party to file a reply the trial Court must be satisfied that both the statement of claim and the statement of defence filed by the parties have not, when read together, sufficiently disclosed and fixed the real issues between the parties and that further pleadings in the reply to be filed will achieve the purpose of bringing the parties to an issue.” — T. Akomolafe-Wilson, JCA.
⦿ FOR LACHES TO SUCCEED, THERE MUST BE KNOWLEDGE TOO
The law is trite that delay alone is not enough to prove laches. It must be proved that the owner of the house had knowledge of the sale and by his act or inaction, he encouraged the adverse party to expend money on the property. See Akanni v. Makanju (1978) 11 NSCC 526 at 533-534. In the instant case, the appellant totally failed to establish these attributes of the defence of laches. — T. Akomolafe-Wilson, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Tinuade Akomolafe-Wilson, J.C.A.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The brief facts of the case as presented by the claimant/respondent is that the respondent and his younger brother Salawu Audu, by the Ebira Native Law and Custom inherited the properties in dispute from their late sister, Ebun Audu, who died intestate without having any child. The family resolved that Salawu Audu should move into the completed buildings and manage the properties on the premises; whereby he rented two flats to the appellant. In 2003, Salawu Audu died and he was introduced to the appellant who continued to pay rent to the respondent. Sometime in 2008, the respondent sent his daughter, Rali, to collect rents from the appellant and she noticed some construction on the uncompleted buildings in the land. The appellant was challenged but continued building hence a report was made to the traditional ruler, who constituted a meeting to resolve the matter. It was at this meeting that the appellant for the first time in 2008 disclosed that late Salawu Audu sold the uncompleted buildings to her. The appellant filed an action at the Area Customary Court, Ogaminna to restrain Rali and Baka Jimoh from harassing her on the premises but later abandoned the suit. Thereafter, the respondent filed this suit to nullify the purported sale to the appellant, made without his knowledge.
On her part, the appellant as defendant contended that the alleged Ebira Native Law and Custom upon which the respondent predicated his claim was not proved and further that he was aware of the sale of the property to her by his late brother but never queried the sale until after his death, hence he set up the plea of laches and acquiescence. After a full trial, judgment was delivered in favour of the respondent on the reliefs sought.
Dissatisfied with the decision of the trial Court, the appellant filed a Notice of Appeal to this Court on four grounds.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether upon a proper evaluation of evidence in this case, judgment is not against the weight of evidence?
RULING: IN RESPONDENT’S FAVOUR.
A. THE EBIRA CUSTOM WAS PLEADED BY THE PLAINTIFF/RESPONDENT
“The submissions of the learned counsel to the appellant that “the statement of claim of the claimant does not disclose of any fact on which evidence in proof of the alleged custom can stand” is untenable. I also find as spurious his submission that ‘paragraph 30 is a mere proposal or intention to show the alleged custom and is not capable of being admitted or denied by the defendants’. Rather it is obvious, as rightly submitted by the learned counsel to the respondent that from respondents averments, the respondent clearly pleaded that – “i. There exists an Ebira custom; ii. By the custom, the mother, father, brother or sister of a deceased can inherit the property of the deceased where (a) The deceased has no child; (b) The deceased died intestate, and; (c) The mother, father, brother or sister survives the deceased.” The claimant had by his pleadings given the appellant sufficient notice of his case being presented for adjudication before the Court. It then behoves on the defendant to adequately respond to the averments of the claimant in defence to the action.”
“In the instant case, even though the respondent specifically pleaded the Ebira Native law and custom in paragraphs 12, 13, 30 and 31 of his statement of claim, upon which he rooted his claim to the property in dispute, and same was further amplified in his witness’s statement of oath (pages 11-16 of the Record of Appeal) as clearly depicted in paragraphs 12, 35 and 36 thereof; the appellant completely failed to counter the averments of the respondent. For purposes of clarity, paragraphs 12, 35 and 36 of the respondent’s statement on oath is reproduced hereunder 12. The Ebun later died without a will and having no child but leaving only my younger brother and I as her heirs. 35. That under Ebira Native Law and Custom when my sister died without a child or will, her estate ought to be inherited by her father, mother and brother or sisters whoever among these, survived her. 36. That only Salawu and I survived our sister.”
“In the instant case, the facts of Ebira Native Law and Custom governing the inheritance of property as relating to this matter were clearly pleaded and evidence of same given in the respondent’s witness statement on oath. I do not agree, as submitted by the appellant that the evidence of the respondent in paragraphs 12 and 35 of his statement on oath did not allude to the Ebira native law and custom by which a father, mother and brothers and sister can inherit a deceased person who died intestate without a child. The wordings of paragraphs 12 and 35 are quite clear and simple and should be giving the ordinary meaning to show the custom it intends to prove. Meanwhile a perusal of the cross- examination of the respondent at the trial shows that he was not cross-examined by the appellant on the issue of custom (See pages 174-175) of the record of appeal). The custom is therefore deemed proved. See Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238 5.C.; Adejumo v. Ayantegbe (1959) 3 NWLR (Pt.110) S.C.; A.C.B. Ltd. v. Egbunike (1988) 4 NWLR (Pt.103) 349.”
B. THE DEFENDANT/APPELLANT DID NOT DENY SPECIFICALLY THE EBIRA CUSTOM PLEADED BY THE PLAINTIFF
“A glance at paragraph 2 of the Statement of Defence where specific denials were made by the appellant in respect of some paragraphs of the Statement of Claim shows a complete omission of paragraphs 30 and 31. The same applies to paragraph 4 of the appellant’s statement of defence where the respondent was put to the strict proof of some paragraphs of the appellant’s statement of claim. It is obvious that there was no where any allusion was made to paragraphs 30 and 31 of the statement of claim. Yet, the averments in paragraphs 30 and 31 are essential and material. They form the crux of the plaintiff/respondent’s case. The legal terminology “expressio unius est exclusive alterius” comes to mind, meaning “to express or include one thing, implies the exclusion of the other.” In as much as no reference whatsoever was made to paragraphs 30 and 31 of the statement of claim, unlike the other paragraphs specifically mentioned in paragraphs 2 and 4 of the statement of defence, already quoted above, the only responsible deduction that can be made is that there is no intention to deny paragraphs 30 and 31 of the statement of claim.”
II. Whether the learned trial judge was right to have rejected the plea of laches and acquiescence properly raised by the appellant as being inapplicable to the instant suit?
RULING: IN RESPONDENT’S FAVOUR.
A. THE DEFENCE OF LACHES AND ACQUIESCENCE WAS NOT ADMITTED BY THE PLAINTIFF/RESPONDENT
“The submission by the learned counsel for the appellant in paragraph 5.5 of his brief of argument that failure of the respondent to challenge or controvert the averments in paragraphs 13, 14, 19, 24, 29, 31, 32 and 42 of the statement of defence amount to an admission is misleading. In the instant case, the plaintiff/respondent, having pleaded in paragraph 33 of his statement of claim lack of knowledge of the sale transaction of the disputed property, it is unnecessary for him to again file a reply to the averments in the referred statement of defence to the effect that he had no knowledge of same. I therefore discountenance the submission of the appellant to the effect that the respondent should be deemed to have admitted the defence of laches and acquiescence raised by the appellant in his statement of defence.”
B. THE APPELLANT DID NOT PROVE EVIDENCE OF KNOWLEDGE
“In the first place, though appellant alleged in her statement of defence that the respondent had “confirmed that he knew of the sales of the houses to her (appellant) by his late brother Salawu Audu”, there was no evidence to that effect. The statement on oath was completely bereft of such an allegation. See paragraphs 16 and 17 of the statement of oath at p.52 of the record of appeal. It is trite law that mere averment in pleadings proves nothing unless admitted. In other words, averments in pleadings are not evidence. Pleadings not supported by evidence go to no issue. They are deemed abandoned. See Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) 379 at 427.”
C. NOTICE CANNOT BE IMPUTED ON THE PLAINTIFF/RESPONDENT
“Furthermore, the contention of imputed notice to the respondent by the fact that she (appellant) openly developed the uncompleted property without any protest from the respondent is of no moment, having regard to the established evidence before the Court that the respondent was at all material time resident outside the Kogi State, the situate of the disputed properties. The uncontroverted evidence is that when he went to Kogi State at the demise of his brother Salawu Audu, it was appellant himself who came to the respondent to pay rents on the other properties duly rented to him. It was only in 2008, as admitted by the appellant himself by his pleadings that the appellant asserted that she had purchased the buildings from late Salawu Audu. I agree with the learned senior counsel for the respondent that in the circumstances, there was no way the learned trial Judge could have imputed notice of the restructuring of the buildings and sale of same to the appellant.”
D. LACHES AND ACQUIESCENCE NEED FRAUD TO SUCCEED
“Better still, the acquiescence which will deprive a man of his legal rights must amount to fraud. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. See Okpaloka and Ors. v. Umeh and Anor (Supra); Okereke v. Nwankwo (2003) 9 NWLR (Pt.826) 592 at 617-618. In this case, there was no scintilla of evidence that the respondent acted fraudulently. Rather, as rightly held by the learned trial Judge, it is the appellant’s act that smirked of fraud.”
“Now, having resolved all the issues against the appellant, this appeal is dismissed as lacking in merits. I award costs of N30,000.00 in favour of the respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 16 Evidence Act 2011;
➥ REFERENCED (CASE)
⦿ CUSTOM CAN BE PROVED BY A SINGLE WITNESS
In the cited case of Usiobaifo v. Usiobaifo (2005) 3 NWLR (Pt. 913) 665 Tobi JSC at pp. 683 – 684 paragraphs H D clarified the position thus – “The main crux of this appeal is whether the respondents proved the Ishan Customary Law of inheritance. The appellants submitted that they did not. The respondents submitted that they did prove the customary law. It is the argument of the appellants that a person other than the party asserting the custom should testify in proof or in support thereof. Although learned counsel cited Ozolua II v. Ekpenga and Oyediran v. Alebiosu (supra), it is my humble view that proof of customary law is not one of the areas in our adjectival law that need corroboration. While it could be desirable that a person other than the person asserting the Customary Law should testify in support of the customary law, it is not a desideratum. This is because the Evidence Act does not so provide. And here, Section 14(1) provides the anchor. The subsection merely provides that a custom ‘can be proved to exist by evidence.’ And evidence can be led on the existence of the custom by a single witness or more witnesses. It is not my understanding of the law that a village or community of witnesses must be called to satisfy the provision of Section 14(1). In the evidential scene in the context of probative value, it is not the number of witnesses that matter but the quality of the evidence given. And so, a situation may arise where a single witness gives credible evidence while a number of witnesses may not because they are a bundle of contradictions. Therefore emphasis should be on quality of the evidence given rather than the quantity.” (Underlining supplied for emphasis)
⦿ IT IS NOT NECESSARY FOR A PLAINTIFF TO FILE A REPLY
In the cited case ofAli v. Salihu (2011) 1 NWLR (Pt.1228) 227 at 253, this Court, per Shadipe JCA stated thus – “The law is no doubt settled that a reply is not filed to a statement of defence as of course. Further pleadings by way of reply is to be filed for the purpose of bringing parties to an issue. It is not necessary for a plaintiff to file a reply if the only purpose to be so achieved is to deny any of the allegations the defendant may have made in the statement of defence. This is because if no reply is filed all the material allegations/facts in the statement of defence are in issue. A reply to merely join issues is therefore not permissible. See paragraph 18.06 of the Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria by T. A. Aguda. The purpose of filing of a reply to a statement of defence has been succinctly stated by Kawu, JSC; in the case of Akinremi (1989) 3 NWLR (Pt.108) 164 at page 172, paras, F-G as follows:- “Now, the rule of practice is that where no counter-claim is filed, a reply is generally unnecessary if its sole object is to raise, in answer to the defence, any matters which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raise issues of facts not arising out of the defence – Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edition, p.107 (Also see Williamson v. London and North Western Railway Company (1879) 12 Ch. D 787, 794). Reply is the proper place for meeting the defence by confession and avoidance. Hall v. Eve (1876) 4 Ch.D 341.”
➥ REFERENCED (OTHERS)