Legalpedia Citation: (2023-07) Legalpedia 58183 (CA)

In the Court of Appeal

Holden At Akwa

Mon Jul 31, 2023

Suit Number: CA/AW/568/2017

CORAM

Peter Oyinkenimiemi Affen JCA

Ibrahim Wakili Jauro JCA

Obietonbara Owupele Daniel-Kalio JCA

PARTIES

CHINEDU EDEOGU

APPELLANTS

1. RAPHAEL EDEOGU
2. VINCENT NWOBUORA EDEOGU
3. ISAAC EDEOGU
4. MOSES EDEOGU
5. PATRICK EDEOGU

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, PRACTICE AND PROCEDURE, PROPERTY LAW

 

SUMMARY OF FACTS

The original plaintiff (who was the first son of the Late Ononenyi Edeogu or “diokpa”) died pendente lite and was substituted by his son, Chinedu Edeogu (the Appellant herein). The original 1st Defendant, Engr. Godfrey Nwachukwu Edeogu equally died pendente lite and his name was struck out from the suit. The Late Ononenyi Edeogu acquired several developed and undeveloped landed property (including the one situate at No. 25 Awka Road, Inland Town, Onitsha – the Res) which devolved upon his nine sons at his death. 

​In a meeting held on 28/6/72 at which seven of the nine sons of the Late Ononenyi Edeogu were in attendance, the majority of all present in the end, accepted to go by the words of a document said to be their father’s Will and the Will was adopted in its entirety. Subsequently in 1982, all nine sons shared the property of their father that had devolved on them in the manner set out in a document titled “SHARING OF PROPERTY BY THE SONS OF LATE V. I. EDEOGU”. All nine sons jointly signed Exhibit D and there was/is no divergence or quarrel with the sharing of the various landed property (both developed and undeveloped), save for Item 5 which reads: “5. Property at No. 25, Awka Road – Anthony gave plots to Paul, Godfrey, Raphael, Obiora, Isaac, Moses, Okolo and retained the rest to himself”. However, the structures with the exception of the thatch-roofed kitchen were destroyed during the Nigerian Civil War and the kitchen eventually became the only available accommodation for the surviving wives of the Late Ononenyi Edeogu, whereupon the backhouse was reconstructed (in its original location) in 1974 pursuant to the agreement reached at the meeting held in 1972 (as captured in Exhibit C) to accommodate the surviving wives of their late father as well as their unmarried sisters partly with family funds and the personal contribution of the original plaintiff.

​The Appellant further maintained that after all the wives had died and the daughters had also left, his father (the original plaintiff) sought to take possession of the backhouse (being part of the developed portion given to him by the Late Ononenyi Edeogu), but the Respondents have continued to resist him.

The lower Court dismissed the main claim and allowed the separate counter-claims in part in a reserved judgment. The Appellant is dissatisfied with the judgment hence the instant appeal. 

 

HELD

Appeal allowed

ISSUES

• Was the Learned Trial Judge correct in law when he interpreted the phrase “retained the rest to himself” as contained in item 5 in Exhibit D, does mean that existing structures built by the father, were not inclusive, and whether the trial Court did not thereby go outside the intendment of Exhibit D and or embark on a voyage of discovery and against the established rules of construction/interpretation of deeds?

 

RATIONES DECIDENDI

STATUTE BAR – WHEN THE DEFENCE OF STATUTE BAR CAN BE RAISED

Although statute bar is a special defence required to be sufficiently pleaded, otherwise it is deemed to have been waived [see Halsbury’s Laws of England (Vol. 28), 4th ed., p. 408 and U.B.R.B.D.A. v ALKA [1998] 2 NWLR (PT. 537) 238], the rule that has crystalised is that being an objection that goes to the roots of the competence of a suit, it can be raised after the receipt of the statement of claim before any defence is filed [see LASISI FADARE v ATTORNEY-GENERAL, OYO  STATE ​ (1982) 4 SC 1 and MOBIL OIL (NIG) PLC v IAL 361 INC [2000] 6 NWLR (PT 659) 146], just as it may be raised as a distinct point of law in the pleadings which may be disposed of by the Court before, during or after the trial. See LOYE & ANOR v NEW LIFE MICROFINANCE BANK LTD (2022) LPELR-57868(CA) 1 at 13 -14 and ADEBOGUN & ANOR v ODERINDE & ORS (2022) LPELR-59322(CA) 1 at 9 -10. – Per P. O. Affen, JCA

 

ISSUES FOR DETERMINATION – HOW ISSUES FOR DETERMINATION ARE FORMULATED IN AN APPEAL

In the case on appeal, aside from the fact that the Appellant did not plead statute bar as a special defence and the issue was consequently not raised as a distinct point of law in the pleadings or by means of a preliminary objection before the lower Court, the well-settled principle of appellate practice and procedure is that issues for determination are formulated from the ground of appeal itself but not on a single particular set out in support of the ground. See NTA v ANIGBO (1972) 5 SC 156, OJEMEN v MOMODU II (1983) 1 SCNLR 188, IMAD v SALAMI [1998] NWLR (PT. 557) 289 at 295, FCDA & ANOR v MICHAEL AKPU (2019) LPELR-48438(CA), OBIAGWU v OKOROAFOR (2019) LPELR-46689(CA). A ground of appeal is the foundation of the complaint whilst particulars are merely supportive of the ground and cannot stand alone and/or be argued as a separate and distinct issue. See OGBONNAYA v ADAPALM (NIG) LTD [1993] 5 NWLR (PT 292) 147.  – Per P. O. Affen, JCA

DOCUMENTS – INTERPRETATION OF DOCUMENTS

It is hornbook law that where a document has to be construed, the intention of the parties must be gathered, in the first place, from the document itself by giving words their plain simple and ordinary grammatical meaning. The first and primary canon of interpretation of documents is that “effect should be given to the literal contents in their ordinary way as they appear on the documents, and anything which does not appear ex facie on such documents should NOT be imported into them”:THE NORTHERN ASSURANCE COMPANY LTD v WURAOLA (1969) LPELR-25562(SC) 1 at 10 – 11 (per Coker, JSC). If the words are express and clear, effect must be given to them and any extraneous enquiry as to what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words used by them. Thus, when the words are unambiguous, the task of interpretation is negligible: this first and primary canon is also the last and judicial enquiry is complete. It is only when there is ambiguity in the language employed in the document that it is permissible to look to the surrounding circumstances to determine what was intended. See IHUNWO v IHUNWO & ORS (2013) 8 NWLR (PT. 1357) 550, NIKA FISHING CO. LTD v LAVINA CORPORATION [2008] 16 NWLR (PT 114) 506, ORIENT BANK v BILANTE INT’L LTD [1997] 8 NWLR (PT 515) 37 at 78, UNION BANK v NWAOKOLO [1995] 6 NWLR (PT 400) 127, ODUYE v NIGERIA AIRWAYS LTD [1987] 2 NWLR (PT. 55) 126 at 139, NWANGWU v NZEKWU (1957) 3 FSC 36 and OLOJA & ORS v GOV, BENUE STATE (2021) LPELR-55634(SC) 1 at 22 (per Oseji, JSC).

 

The above notorious proposition is encapsulated in S. 128 (1) of the Evidence Act 2011 to the effect that: “When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition or property has been reduced to the form of a document or series or documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence”. Although there are recognized exceptions, it has not been alleged that any of the exceptions is applicable in the case on appeal. – Per P. O. Affen, JCA

PROPERTY AND REST – MEANING OF THE WORDS PROPERTY AND REST

As the question is strictly one of interpretation of Exhibit D from which the parties’ intention is to be garnered, there can be no meaningful disputation that the ordinary meaning of “property” encompasses both building(s) and the surrounding land; whilst “rest” means: “What is left after everything or everyone else has gone or been used, dealt with or mentioned” [see Longman Dictionary of Contemporary English (New Edition)]. Since the property at No. 25, Awka Road, Onitsha comprised buildings/structures and undeveloped plots of land and the original plaintiff (Anthony) gave “plots” to named persons “and retained the rest to himself”, then the “rest” that he retained for himself clearly consists of the residue made up of both buildings/structures and undeveloped plots.  – Per P. O. Affen, JCA

COURTS – CONDUCT OF APPELLATE COURTS IN EVALUATION DOCUMENTARY EVIDENCE

The point to underscore is that although evaluation of evidence and ascription of probative value thereto are the province and forte of the trial Court, an appeal Court stands in as vantage a position as the trial Court to undertake evaluation when the evidence is documentary. Thus, the appeal Court will not ordinarily interfere with findings of fact made by a Court of trial, save that where the trial Court fails to make correct findings upon evaluating evidence, the conclusion reached is vitiated and the appeal Court will interfere by assuming the role of the trial Court to evaluate the evidence and make proper findings insofar as the findings of fact do not depend on credibility of witnesses. See OKOMALU v AKINBODE & ORS (2006) LPELR-2470(SC), OGUNLEYE v ONI [1990] 2 NWLR (PT. 135) 745, and UMESIE v ONUAGULUCHI [1995] 9 NWLR (PT 421) 515.  – Per P. O. Affen, JCA

 

DOCUMENTS – PRIMARY CONSIDERATION IN INTERPRETING A DOCUMENT

The primary consideration in constructing/interpreting a document is that the meaning of the document or of a particular part thereof is to be sought for in the document itself. The reason for this is obviously to rule out any attempt through sophistry or guile, to avoid what the document explicitly states. – Per O. O. Daniel-Kalio, JCA

 

CASES CITED

NOT AVAILABLE

STATUTES REFERRED TO

Evidence Act 2011

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