NSIEGE V. MGBEMENA (2007)

Background

This appeal concerned ownership and possession of land at No. 43, Ikwerre Street, Diobu, Port Harcourt. The appellants, members of the Nsiegbe family, claimed that the land originally belonged to their family and had devolved upon their father, Dandeson Owhonda Nsiegbe. They sought declarations that they were entitled to the land or certificate of occupancy, that an instrument of transfer issued by the Rivers State Abandoned Property Authority to the respondents was void, and an injunction restraining the respondents from interfering with their alleged rights.

The respondents’ case was that Dandeson Nsiegbe sold a larger parcel of land to Richard Duru Ahumibe in 1956. Ahumibe subsequently sold the portion in dispute to the respondents’ predecessor, who paid for it, obtained a receipt, took possession and constructed the building known as No. 43, Ikwerre Street. The relevant purchase receipts were admitted as exhibits B and J. The building was occupied by the respondents’ predecessor until the Nigerian Civil War, when he left Port Harcourt. After the war, the Abandoned Property Authority released the property to him by an instrument of transfer, exhibit F.

The High Court dismissed the appellants’ claims. It reasoned principally that Dandeson Nsiegbe had acquiesced in the respondents’ predecessor building on the land and could not later assert title. The Court of Appeal affirmed that decision. The appellants then appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal was right to uphold the trial court’s decision on the basis of acquiescence.
2. Whether the respondents or their predecessor were in possession of the disputed land.
3. Whether the respondents had acquired ownership or a legally enforceable interest in the land.

Ratio Decidendi

The Supreme Court held that acquiescence is assent to an infringement of rights, express or implied from conduct, by which a person loses the right to equitable relief. However, a defence of acquiescence must be supported by pleaded facts. A court cannot properly decide a case on an issue that was neither pleaded nor fully canvassed by the parties. If a court raises a new issue suo motu, it must invite the parties to address it before relying on that issue in its judgment. Failure to do so violates the requirements of fair hearing and may result in a miscarriage of justice.

The Court further held that evidence relating to facts not pleaded goes to no issue and must be disregarded. Where evidence is materially inconsistent with the pleadings, the proper consequence may be dismissal of the claim. In the present case, the respondents’ pleadings did not sufficiently raise acquiescence or estoppel, and the trial court erred in relying on that doctrine without giving the appellants an opportunity to address it.

Nevertheless, the error did not justify allowing the appeal. The purchase receipts, exhibits B and J, were more than twenty years old at the time of trial and had been admitted without objection or proof of forgery. Under section 122 of the Evidence Act 1990, they enjoyed a presumption of due execution and attestation. Exhibit J evidenced the sale of the larger parcel by the appellants’ father to Ahumibe, while exhibit B evidenced Ahumibe’s subsequent sale of the disputed portion.

The Court also reaffirmed that payment for land coupled with possession under an unregistered registrable instrument may create an equitable interest as good as a legal estate. Although the receipts did not operate as registered conveyances of legal title, they were admissible to prove payment, the transaction and the resulting equitable interest. The respondents’ predecessor had paid for the land, entered into possession and built on it. That equitable interest was transferred to the respondents and was sufficient to defeat the appellants’ claim, in the absence of a purchaser for value without notice of the prior equity.

Court Findings

The Court found that the respondents’ predecessor was an innocent purchaser who acquired the property by purchase and without fraud. His occupation before the Civil War, the construction of the building, the subsequent release of the property to him by the Abandoned Property Authority and the payment of property rates all supported the conclusion that he was in possession and regarded as the owner. His absence during the Civil War was involuntary; therefore, he retained constructive possession during that period.

The Court considered the Rivers State Abandoned Property (Custody and Management) Edict No. 8 of 1969. Under section 2, abandoned property included property belonging to a person whose hometown or place of origin was outside Rivers State and which had been abandoned as a result of the Civil War. Since the respondents’ predecessor was from outside Rivers State and the property had been released to him after the war, the circumstances supported the respondents’ account of ownership. The second appellant also made statements in evidence acknowledging that the building belonged to the respondents’ predecessor.

The Court acknowledged that the lower courts’ reliance on acquiescence was legally defective. However, it declined to disturb their ultimate conclusion because the respondents had established their interest through the receipts, possession, building plan, transfer instrument and surrounding evidence. The Supreme Court also reiterated that it ordinarily does not interfere with concurrent findings of fact unless they are shown to be perverse, erroneous, unjust or founded on a serious violation of law or procedure.

Conclusion

The appeal was dismissed. The decision of the Court of Appeal was affirmed, although the Supreme Court rejected the reliance on acquiescence as the proper basis for deciding the case. The respondents were held entitled to retain possession and ownership of the disputed property. Costs of N10,000 were awarded against the appellants.

Significance

The decision is significant for Nigerian land law and civil procedure. It demonstrates that an unregistered purchase document may still support an equitable interest when accompanied by payment and possession. It also emphasises that courts must determine cases on the basis of the parties’ pleadings and must not spring new issues upon litigants without giving them an opportunity to respond. Finally, the case illustrates the Supreme Court’s cautious approach to disturbing concurrent findings of fact and its willingness to uphold a correct result on a legally sustainable ground even where the reasoning of the courts below was partly erroneous.