Greg Offodile V. Ozo Anthony Nweke Offodile & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The parties in this appeal are all members of Chief Ozo Offodile Family of Umuayon Village Awka in Anambra State. It is not in dispute that the Appellant, as the Plaintiff, is the sole surviving direct son of Chief Ozo Offodile. The 1st – 5th Respondents, as Defendants, admitted that they are all “grand children of Chief Ozo Offodile” and also that the 6th Respondent, as the 6th Defendant, “is a great grand child of Chief Ozo family On these indubitable facts the trial Court found and held that “the Plaintiff being the only surviving direct son of Chief Ozo Offodile – is the head of the said (Chief Ozo Offodile) family in accordance with the Awka native law and custom”. This specific judgment on the peculiar facts has not been challenged. It subsists and remains binding between the parties in this appeal.
Such findings of fact neither appealed nor challenged are undisputed and are taken as admitted and acceptable to the parties. OLUKOGA & ORS. v. FATUNDE (1996) LPELR – 2623 (SC); COMMERCE ASSURANCE LTD v. ALLI (1992) 3 NWLR (pt. 232) 710.
At the trial Court, the dispute was over the sale of 25 plots out of the Chief Ozo Offodile family land to the 6th Defendant/Respondent by the 1st – 5th Defendants/Respondents while the Plaintiff/Appellant was away in the United States of America. The Plaintiff, at the trial Court, alleged that the 25 plots were sold to the 6th Defendant/Respondent without his consent. The 1st – 5th Defendants/Respondents did not, and still do not, dispute selling the 25 plots to their nephew, the 6th Defendant/Respondent. In their Amended Statement of Defence they averred that they sold the 25 plots out of Chief Ozo Offodile family land “to save the land in dispute from Government interference and the 6th Defendant was found to be able to develop the piece of land immediately to ward off Government attention”. It is clear from the pleadings and the totality of the evidence that the parties know the parcel or portion of land in dispute.
The Plaintiff/Appellant at the trial Court sought a declaration that the purported sale of the disputed piece or portion of Chief Ozo Offodile family land to the 6th Defendant/Respondent by the 1st-5th Defendants/Respondents, without the consent of the Plaintiff/Appellant as the family head, was null and void. The Plaintiff/Appellant further sought, inter alia, an order of injunction restraining the Defendants/Respondents, their servants, agents and privies from further trespass on the disputed land. He filed along with the Statement of Claim a site plan, which was later admitted in evidence as Exhibit A.
The Defendants/Respondents also filed two site plans, namely Exhibits G and H. Exhibit H is the product of the super-imposition of Exhibit A on Exhibit G. In all these the parties sought to show, with definite certainty, the disputed land and its extent in respect of which the claims of the Plaintiff/Appellant for the declaration that the sale of the 25 plots was a nullity and an injunctive restraining order related.
The 6th Defendant/Respondent had averred that he bought some other parcels of and from other families. The Plaintiff/Appellant did not seem to dispute that fact, as those parcels of land do not form part of Chief Ozo Offodile family land. He did not extend his claims to those other parcels of land. The site plans, particularly Exhibits G and H, clearly show the properly delineated land in dispute, comprising 25 plots out of Chief Ozo Offodile family land, and the parcels of land the 6th Defendant/Respondent bought from other families. These facts are clearly ex facie Exhibits G & H filed by the Defendants/Respondents themselves.
In their concurrent judgments the trial Court and the lower Court dismissed the claims of the Plaintiff/Appellant on one question; that is, “what is the extent of the alleged 25 plots that were sold to the 6th Defendant which constitute part of the Chief Offodile family land and which actually constitute the land in dispute.” Upon this rhetorical question at pages 181 and 182 of the Record, the trial Court immediately stated that “there is no doubt that the Plaintiff, by Exhibit A, showed what they (sic) said was in dispute. But from the evidence before this Court, it is obvious that the same could not be said to be the extent of the land in dispute”. The trial Court, therefore, dismissed the suit of the Plaintiff/Appellant on the basis only that he did not, allegedly, show “the extent of the land in dispute”. The lower Court affirmed this decision of the trial Court, It, however, added, at page 274 of the Record -that what is relevant and in contention really is (the) land in dispute belonging to Chief Offodile’s family and not lands of Chief Offodile (family) not in dispute or other lands of other families.
The lower Court, finding paragraph 5 of the Statement of Claim and paragraphs 5 and 5 (a) of the Amended Statement of Defence germane, reproduced them. I will also do the same. In paragraph 5 of the Statement of Claim the Plaintiff/Appellant had averred inter alia –
- The land in dispute is situate at Agbana-Ofvia within the jurisdiction of this Honourable Court and is more particularly demarcated and verged RED in the survey plan No. SSC/AN – D06/200 –.
The Defendants/Respondents, on their part, averred thus in paragraphs 5 and 5(a) of the Amended Statement of Defence –
- Except that the land in dispute is situate in Agbana-Ofvia, the Defendants deny the rest of paragraph 5 of the Statement of Claim and aver that the land in dispute is as shown and verged in the survey plan No. TG/AN 003D/2005 annexed herein and filed with this Statement of Defence.
5 (a) The Plaintiff’s plan has been super imposed on the Defendants’ plan as shown and verged in the survey plan No. TG/AN 003D/2005 annexed and filed with this Amended Statement of Defence .
The Plaintiffs’ Survey Plan No. SSC/AN-D 06/2004 is Exhibit A. The Defendant’s Survey Plan No. TG/AN003D/2005 is Exhibit G, The final plan, upon the super imposition of Exhibit A on Exhibits G, is Exhibit H. Exhibits G & H form part of the totality of the evidence on record that the two Courts below are enjoined to evaluate before coming to the decision whether or not the Plaintiff/Appellant discharged his burden of showing the disputed land with definitive certainty – the so called “acid test”.
The principle on which the trial Court and the lower Court predicated their judgments, dismissing the claims of the Plaintiff/Appellant, is that the disputed land must be clearly definite and discernible; failing which the claims to title over it and injunctive order restraining further trespass thereto should be denied. In otherwords, a judgment declaring title to or over a piece of land must be set aside, on appeal, where the disputed land is not properly ascertained: UDOFIA v. AFIN 6 WACA 216; KWADZO v.ADJEI 10 WACA 274; OLUWI v. ENIOLA (1967) NMLR 339; ARABE v. ASANLU (1980) 5 – 6 SC 78 at 90. In ELIAS v. OMO-BARE (1982) 2 NWLR (pt. 55) 101, Coker JSC proffered the purpose of this principle thus, at page 106 –
The purpose is to enable the parties and any other person claimining (through them) to know precisely the area of land to which the judgment or order relates for the purpose of enforcement of the decision of the Court. It is also important for the purpose of obviating possibility of future litigation of that particular area of land as between the parties and their privies.
At the risk of repetition, the trial Court found correctly at page 181 of the Record that “it is not in dispute that a portion of land belonging to the Chief Offodile family was purportedly sold to the 6th Defendant”. It is not also in dispute that the parties, themselves members of Chief Ozo Offodile family, know the portion of land in dispute.
The narrow issue in this appeal is whether the concurrent judgments of the two Courts below are not perverse in view of the totality of the evidence on the Record? The two Courts below had rigidly posited their stance on Exhibit A in holding that the Plaintiff/Appellant did not show the exact demarcations of the disputed parcel of land comprising 25 plots. Apart from Exhibit A, Exhibits G & H were before them to view and interpret. There was also before them the undisputed fact that the parties themselves know the portion of land in dispute. The contention of the Plaintiff/Appellant is that the concurrent findings of fact that he failed to establish the extent of the disputed land, inspite of the overwhelming evidence (both documentary and oral) clearly pointing to the fact that the extent of the disputed land is known to all parties, were rather perverse.
I agree with the Appellant’s Counsel that the “actual extent, size and boundary (of the disputed land) are copiously shown and delineated in the Respondents’ Exhibit G in evidence” on the Record. With due diligence the two Courts below, upon perusal of even Exhibit H, would have had no difficulty ascertaining the extent, size and boundaries of the disputed land. Exhibits G & H are pieces of evidence produced by the defence. They operate as admission against the interest of the Defendants/Respondents who produced them; particularly now at the appellate stage when the same Defendants/Respondents vigorously contended that the Plaintiff/Appellant failed at the trial Court to establish the extent, size and boundaries of the disputed land. I agree that generally the Plaintiff seeking a declaratory relief must succeed on the strength of his own case and not on the weakness of the defence: KODILINYE v. MBANEFO ODU (1935) 2 WACA 336 at 337; OLASOPE v. NBN (1985) 3 NWLR 147 at 150. The rule is not sacrosanct. It has exceptions. One of such exceptions is when the defence evidence supports the case of the Plaintiff claiming declaratory relief. In such a case, as it is stated in NSIRIM v. NSIRIM (2002) FWLR (pt. 96) 433 at 441, the Plaintiff or Claimant is perfectly entitled to rely on such defence evidence supporting his case.
Even if, inspite of Exhibit A, the Plaintiff/Respondent failed to establish with definitive certainty the extent of the disputed land; the two Courts below, given their function to exercise their discretion judicially and judiciously on the available evidential materials, ought to have perused Exhibit H, which according to the defence was the product of Exhibit A super imposed on Exhibit G. I have myself perused Exhibit H. One could clearly see ex facie that the parcel of land the 6th Defendant/Respondent purchased from the other families are boldly indicated thereon as portions of land not in dispute. The said survey plan, Exhibit H, clearly shows the portion of Chief Offodile family land in dispute (that is the 25 plots sold to the 6th Defendant). Exhibit G also shows, and it is clearly delineated thereon, the “Offodile family land sold to 6th Defendant (now in dispute)”. Both Exhibits G & H show this disputed portion of land, like Exhibit A.
It is obvious from the concurrent decisions of the two Courts below that they did not consider the principle established in SOGUNLE v. AKERELE (1967) NMLR 58; AKEREDOLU v. AKINREMI (1989) 5 SCRJ 71 at 77: that if the Plaintiff for a declaration of title includes land over which he has no title with that portion he has title over and successfully proves title to an ascertainable portion, the Court can still declare title in his favour over or in respect of that ascertainable portion proved.
On this principle, the two Courts below erred in not giving judgment to the Plaintiff/Appellant over that portion the Defendants/Respondents had admitted as the portion in dispute between them and the Plaintiff/Appellant and in respect of which the Plaintiff’s claim, as the family head, relates.
I agree with the Appellant that, in ETIKO V. AROYEWUN (1959) 4 ESC 129, it was held that it is not always that a survey plan is necessary, or sine qua non for judgment to the Plaintiff seeking declaratory and injunctive reliefs. If the identity of the land in dispute can be ascertained, without a survey plan, the Plaintiff in the circumstance can be given judgment declaring his title to the piece of land he lays his claim to: ULUBA & ORS v. SILLO & ORS (1973) ALL NLR (REP) 53 at 64 – 65. When there is ample evidence, other than a survey plan, identifying the land claimed as the land the Defendant bought, the absence of a survey plan has been held not to be fatal to the Plaintiffs case: ATOLAGBE v. SHORUN (1985) 1 NWLR (pt. 2) 360 at 373; ARABE v. ASANLU (supra); OLUJINLE v. ADEAGBO (1988) 4 SC.
A very crucial and material fact which eluded the two Courts below or which fact they obviously shut their eyes or ears to is the fact that the parties, as members of Chief Ozo Offodile family, know the land in dispute. The Defendants admitted that the disputed portion of land, comprising 25 plots out of Chief Ozo Offodile family land, was sold to the 6th Defendant/Respondent by the 1st – 5th Defendants/Respondents. Like the Plaintiff/Appellant, the Defendants/Respondents know both the identity and location of that disputed land. In the circumstance, as Alexander, JSC (as he then was) stated inIBULUYA & ORS v. DIKIBO & ORS (1978) A NLR 316, relying on CHIEF SOKPUI v. CHIEF AGBOZO (19510 13 WACA 241, at 242 –
If the parties to an action in respect of land in dispute know precisely what area is in dispute, and the boundaries of the area “on the ground”, a plan is not an absolute necessity for successfully maintaining an action for trespass and injunction in respect of the area.
The Appellant is complaining that the trial Court and the lower Court did not properly advert to the totality of the evidential materials on the record when they dismissed his case. He submitted that the Courts, in their concurrent judgments, reached the perverse decisions not only as regards the facts but also on the established principles regarding the establishment by the Plaintiff of the size, extent and location of the disputed land to which his claim for declaratory and injunctive reliefs relates. A judgment is said to be perverse if it persisted in error, different from what is reasonable or required, and is against the weight of evidence. It is also perverse when the judge took into account matters which ought not to take into account or where he shuts his eyes to the obvious: ATOLAGBE v. SHORUN (supra). From all I have been labouring to say, I cannot but I agree with the Appellant that the concurrent decisions of the trial Court and the lower Court are perverse. The two Courts clearly shut their eyes to Exhibits A, G & H, and the fact that between the parties herein the identity of the disputed portion of land, comprising 25 plots out of Chief Ozo Offodile family land, is really not in dispute.
I agree with the Counsel for the Defendants/Respondents, on the authority of OVERSEAS CONSTRUCTION CO. NIG. LTD v. CREEK ENTERPRISES NIG. LTD. & ANOR. (1985) 3 NWLR (pt. 13) 407, that a finding of fact by a Court of law that is merely speculative and not based on any empirical evidence is perverse. In the instant case, notwithstanding the site plans, particularly Exhibits G & H, produced by the Defendants/Respondents themselves which clearly showed the extent and boundaries of the disputed land, the two Courts below based their judgments on facts to the contrary of the empirical evidence. They also ignored established principles to the effect that when parties know the disputed land the production by the Plaintiff of a survey plan is not a sine qua non for favourable judgment. The concurrent judgments are perverse for the obvious reason that the Courts overlooked the evidence establishing the extent, location and demarcations of the disputed land and held that such evidence did not exist.
Since the parties know the disputed land and from Exhibit A, G & H the identity of the land is no longer in dispute; the real issue calling for determination in the circumstances is: whether the 1st – 5th Defendants/Respondents sold the disputed portion of the family land to the 6th Defendant/Respondent without the consent of the Plaintiff/Appellant, the acclaimed and undisputed family head being the sole surviving direct son of Chief Ozo Offodile; and also whether, alternatively, the Plaintiff/Appellant had made out the case for the partitioning of the Chief Ozo Offodile family land.
The 1st Defendant/Respondent, even though biologically older in age than the Plaintiff/Appellant and any other descendant of Chief Ozo Offodile, is not the family head. The undisputed family head is the Plaintiff/Appellant. The trial Court made that declaration. It was not appealed. The effect of this is that the 1st Defendant/Appellant, was an impostor who had unsurped the function of the Plaintiff/Appellant, as the family head, when he (the 1st Defendant) purportedly convened and presided over “the Chief Ozo Offodile family meeting at which the land in dispute was sold to the 6th Defendant”. There is also no evidence that the Plaintiff/Appellant delegated that function to the 1st Defendant/Respondent. There is no evidence that the Plaintiff/Appellant gave his consent for the sale of the disputed 25 plots. The PW.4’s admission, under cross-examination at page 142 of the Record that the meeting convened and presided by the 1st Defendant/Respondent (an impostor family head) was valid, does not prove the material element – the consent of the family head for the sale of family land.
The settled principle of law on sale of family land is that a sale of family without the consent of the head of the family is void ab nitio:AKAPO v. HAKEEM HABEEB (1992) 6 NWLR (pt. 247) 266 at 293; AKINFOLARIN v. AKINNOLA (1994) 3 NWLR (pt. 335) 659 at 682. The trial Court, at page 190 of the Record, acknowledged the applicability of this principle of customary law to the instant dispute. On this principle, the sale of the disputed 25 plots by 1st – 5th Defendants/Respondents to the 6th Defendant/Respondent, without the consent of the family head, the Plaintiff/Appellant, was void ab nitio. It is so declared. On this declaration, the consequential injunctive order is made that the Defendants/Respondents their servants, agents or privies shall be and are hereby restrained from trespass or further trespass unto the disputed portion of land comprising the 25 plots sold to the 6th Defendant/Respondent by the 1st – 5th Defendants/Respondents.
In the circumstance of my foregoing analyses it is my judgment the decision of the lower Court delivered on 29th April, 2009 in the appeal No. CA/E/299/2007 by which the lower Court affirmed the perverse decision of the trial Court delivered on 8th May, 2007 in the suit No. A/221/2002 is also perverse. Both decisions, being perverse, are hereby set aside. The order dismissing the Plaintiff/Appellant’s suit is hereby reversed and is substituted herewith a judgment in favour of the Plaintiff/Appellant in terms of reliefs (a) & (c) in paragraph 35 of the Statement of Claim. And that shall be the judgment of the trial Court.
Parties shall bear their respective costs.
SC.318/2009
