Andrew Ukachi Njoku & Ors. V. The Registered Trustees of the Congregation of the Holy Ghost Fathers (2006)
LawGlobal-Hub Lead Judgment Report
THOMAS, J.C.A.
This is an appeal against the judgment delivered by Hon. Justice L. C. Alinnor in suit No. HOW/249/90 dated 30/05/1995. The judgment was in favour of the plaintiff now respondent in this appeal.
The brief facts of this appeal as per the plaintiff/respondent’s amended statement of claim, is that the respondent purchased the land in dispute in 1976. The land was made of plots 203, 204, 205 and 206 situate at Ugwu Orji Layout Owerri. The sellers were said to be Nicholas Nlumanze and John Nlumanze who claimed to be owners by virtue of inheritance from their forebears. The sale price to the respondent was N7,000.00, and it was evidenced by a Deed of Conveyance dated 2nd August 1976 and registered as No. 74 at page 74 in volume 118 at Land Registry Owerri along with survey plan No. MC/424/76 showing the extent and dimension of the land in dispute.
The respondent also obtained a State Certificate of Occupancy (C of O) dated 08-09-1998 with Plan No. As.A/IM/1987/89. The respondent averred that they took possession over the four plots without let or hindrance until when the respondents trespassed into the land in dispute and destroyed development efforts constructed by the respondent. Hence the respondent then filed the suit against the defendant/appellant claiming as follows: (see 33 – 34 of the record).
“(a) The sum N20,000.00 (Twenty Thousand Naira) being special and general damages for trespass committed by the defendant to the plaintiff’s property know as plots Ugwu Orji Layout Owerri within jurisdiction.
(b) Item of special damages:
(i) Building destroyed by defendants valued at N15,000.00
(ii) General Damages N5,000.00
Total N20,000.00
(c) Perpetual injunction restraining the defendants, their servants, workmen, etc. from committing further acts of trespass to said property or doing anything inconsistent with the plaintiff right thereon.”
On the part of the defendants now appellant as can be gathered from their amended statement of defence at pages 34 – 40 of the record is that the land in dispute is part of the defendant’s land know as and called ALA OHIA EGBELU ORJI which they inherited from their ancestors by conquest from the people of Mbieri. That part of the land in dispute had been the subject of a lawsuit at the Owerri High Court between the defendant and one Nicholas Kamula (Nlumanze) (the plaintiff’s vendor in the present case). And that the defendant won the case and that a certified copy of the judgment was to be tendered to support their ownership of the land. In other words, the defendants/appellants case was that the land in dispute is part of the subject matter in different suit No. HOW/106/77 and HOW/103/77 between Nicholas Nlumanze v. Andrew Ukachi Njoku.
At the lower court, the plaintiff/respondent called three (3) witnesses while the defendants/appellants called four (4) witnesses. Both parties counsel addressed the court and made their submission. After a considered decision, the lower court gave judgment in favour of the plaintiff/respondent and awarded sum of N15,000.00 as special damages and N3,000 as general damages. The learned trial Court Judge also made an order for perpetual injunction by restraining the defendants/appellants, their servants’ agents and privies from committing any further acts of trespass on the land in dispute.
Dissatisfied with the lower court’s judgment, the appellants filed notice of appeal dated 02-06-1995 with only one ground of appeal. Much, later, with the leave of this court, appellants amended their notice of appeal by filing 5 additional grounds of appeal. In the same motion, appellants sought and were granted leave to file their briefs of argument from which they formulated 3 issues for determination. They read thus:
“(a) whether the lower court was right in holding that the land in dispute in HOW/103/77 and the land in dispute in HOW/249/90 (the present case) are not part of each other having regard to the evidence adduced.
(b) Whether the lower court was right in holding that the plaintiff/respondent who purchased the land from PW1 acquired a valid and good title to the land in dispute.
(c) Whether the lower court was right in awarding damages for trespass to the plaintiff/respondent on the basis of evidence adduced on act of possession’”
On the part of the respondent, their counsel adopted the 3 issues formulated by the appellants for determination but adds a forth issue to wit:
“Whether the plaintiff/respondent’s case that the land in dispute is different from the land in dispute in HOW/103/77 is not strengthened or supported by the defendant/appellant’s pleading in paragraph 6C of their amended statement of defence (line 9-11 of page 35 of the records of appeal) and the testimony of the 1st defendant/appellant on oath at lines 7-10 of pages 43 of the record of appeal, 4th issues relates to ground 3.”
Now before I determine the three issues relied upon by both parties, it is pertinent for me to look at the relevance of the respondent’s additional issue 4. Looking at appellants’ issue 1 above, there is no need to determine respondents’ issue 4 because it will amount to repetition of the same issue 1 which the respondent has adopted as its own issue for determination. It is settled law that proliferation of issues is not allowed. See KALU v. OHUABUNWA (2004) 7 NWLR (Pt. 871) 1; AKINKUGBE v. BUCKNOR (2004) 11 NWLR (Pt. 885) 652.
This court has stated clearly that it is proper for the respondent to adopt appellant’s issues if the issues can properly determine the appeal, but a respondent can only formulate additional issues related to the appellant’s grounds of appeal. See OSAZUWA v. ISIBOR (2004) 3 NWLR (Pt. 859) 16.
Based on the above position of law relating to formulation sues, I hereby discountenance respondents additional issue No. 4 being repetitive. I will now proceed to consider and determine issues 1 – 3 because the court and the parties are bound on same. See AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416.
By leave of this court the appellants filed and exhibited the amended notice of appeal containing also the (5) five additional grounds of appeal. The 5 grounds short of their particulars, read as follows:
“2. ERROR IN LAW
The learned trial Judge erred in law when he held that plan was not necessary in the present case.
- ERROR IN LAW
The learned trial Judge erred in law when he held that the defendants/appellants description of the land in dispute in relation to their land not in dispute meant two different parcels of land.
- ERROR IN LAW
The learned trial Judge erred in law when he held that plaintiff/respondent showed a valid title to the land in dispute.
- ERROR IN LAW
The learned trial Judge erred in law in preferring the evidence of the plaintiff/respondent to that of defendants/appellants’ on the issue of act of possession.
6 …”
From the above stated five additional grounds of appeal, the appellant formulated 3 issues for determination in this appeal and they showed the respective applicable ground (s) for each of the 3 issues as follows:
“(a) Whether the lower court was right in holding that the land in suit No. HOW/103/77 and the land in dispute in HOW/249/90 (the present case) are not part of each other having regard to the evidence adduced (grounds 2 & 3).
(b) Whether the lower court was right in holding that the plaintiff/respondent who purchased the land from PW1 acquired a valid title to the land in dispute – (grounds 4 & 6).
(c) Whether the lower court was right in awarding damages for trespass to the plaintiff/respondent basis of evidence adduced on act of possession – (ground 5).”
Now, it is apparent that the appellants have abandoned their original ground 1, because there is no issue distilled and formulated from the original ground 1 and is hereby struck out from being not related to any issue for determination of this appeal. See NWUDE v. F.G.N. (2004) 17 NWLR (Pt. 902) 306; A.N.P.P v. I.N.E.C. (2004) 7 NWLR (Pt. 871) 16; JIBRIN v. BABA (2004) 16 NWLR (Pt. 899) 243.
Another point to be resolved before I consider relevant issues for consideration of this appeal is the relationship of the appellants’ additional ground 5 and the competence or otherwise of issue 3 formulated by the appellant which is also adopted by the respondent as his 3rd issue. A careful scrutiny of appellants’ additional ground 5, vis-a-vis their issue No. 3, it will show that they are not related. Infact, they are miles apart. Ground 5 is a complain that trial court Judge was in error because he preferred evidence of the respondent on issue of act of possession. The five particulars of error as stated by the appellants in ground 5, have no connection to the issue of award of damages for trespass as formulated by the appellant when an issue is not formulated on any ground(s) of appeal, then the issue remains a futile exercise. In all, the 5 additional grounds of appeal, the finding of the trial Judge on which he gave judgment for the respondent in respect of special and general damages has not been appealed against by the appellant. The judgment of the trial court at page 72 – 73 read thus:
“The plaintiff claimed N15,000.00 special damages for the structure on the land which the defendants destroyed. That was by the evidence of PW3. The defendants never challenged the value placed on the demolished structure. In the defendant’s amended state of defence, they merely denied the special damage among others. Mere denial is not sufficient traverse. Even the defence counsel did not cross examine PW3 on the value he placed on the destroyed structure. Over and above that, DW 1 boldly gave evidence that he destroyed and carted away the structure. On the foregoing premises therefore, I hold that the plaintiff has established has claim for special damages.
The plaintiff with in addition is entitled to general dameges.
The judgment of this court, therefore, is that the claim of the plaintiff succeeds. An order for perpetual injunction hereby issues restraining the defendants, their servants, agents and privies from committing any or further acts of trespass on the land in dispute over which a Certificate of Occupancy registered as No. 22 page 22 Volume 255, Land Registry Owerri Exhibit ‘C’ has been issued to the plaintiff. The plaintiff is further awarded, against the defendants, the sum of N15,000.00 as special damages and N3,000.00 as general damages. The plaintiff is further entitled to cost which I asses at N1,000.00.” (Italics is mine).
From the above award of special general damages in favour of the respondent, the appellant deliberately knew that there was no need to file a specific ground of appeal on general and special damages knowing fully aware that they did not challenge the respondent’s amended statement of claim; and more over, the appellants’ evidence by DW1 was in support of the respondents case as stated by the trial court judgment at page 72 line 28 – 30 which is to the effect that:
“Over and above that, DW1 boldly gave evidence that he destroyed and carted away the structure.”
From the above findings of fact, the appellant is now by inelegant manner has come through the back door, by formulating an issue that has no basis on any ground of appeal. This is unethical and is deprecated upon. It is settled law that where an appellant has not challenged the findings of fact made by the trial court, an appellate court will not interfere or make any finding, which has not been challenged. See Supreme Court base of UDEGBUNAM v F.C.DA. (2003) 10 NWLR (Pt. 829) 487. In the appeal at hand, it is clear that the appellant has not appealed by a ground of appeal against the special damages, and therefore the purported issue 3 alleged to have been formulated based on ground 5 is incompetent and the issue is struck out. Same applies to appellants’ additional ground 5 which has no relevant issue for determination. See N.D.I.C. v. OKEM ENT. LTD (2004) 10 NWLR (Pt. 880) 107, SC TATE IND. PLC v. DEVCOM M.B. LTD (2004) 17 NWLR (Pt. 901) 182.
At this stage, since appellant’s issue number 3 is struck out, same applies to respondent’s issues numbers 3 and 4 which were adopted from appellant’s issue 3 and so are struck out. I will therefore consider appellant’s issues I and 2 only as the relevant issues for proper determination in this appeal.
Issue 1
The main complain of the appellant in his brief of argument is, that at the lower court, the trial Judge had held that a survey plan was not necessary in the case at hand. That the trial court further declared that the land in dispute in Suit No. HOW/103/77 is quite different from the land in dispute (the case/present appeal) HOW/249/90. Appellant is contending that the trial Judge was in error by holding that a parcel of land which a bounds the one in dispute cannot be part of the land in dispute. Appellant further submitted that a survey plan becomes unnecessary in a land matter only when the parties have agreed as to the identity, description and the exact boundary of the land in dispute. Appellants referred to and relied on the cases of ROLAND OMEREGBE & ORS. v OVIAMONYE IDUGIEMUANYE (1985) 2 NWLR (Pt. 5) 41, 59-66; MUSA IJAYI v. SULE EYIGEBE (1987) 3 NWLR (Pt. 61) 523, 529 and KODILINYE v. ODU (1935) 2 WACA 336. Appellant urges this court to hold that the trial lower court was in error when he delivered judgment that the defendant (now appellant) made a misconception that a survey plan is a sine quo non in all land matters touching on title. The appellant then urged this court to resolve issue number one in their favour.
In response to issue 3, the respondent’s argument is that they were the plaintiffs at the lower court and their claim was for damages for trespass and perpetual injunction, which made them imperative to prove their title of the land in dispute. The respondent further submitted that, there are various ways of proving the identity of a land in dispute and that the tendering of a survey plan is only one of them but not a sine quo non to an award in favour of a party’s claim. To support his position that survey plan is not always a necessity, learned counsel for the respondent referred to the Supreme Court decision in ARABE v ASANLU (1980) 5 – 7 SC 78, ISHIE v MOWANSA (2001) 13 NWLR (Pt. 684) 729, (2001) FWLR (Pt. 80) 1592. The respondent further contended that at the lower court as per their amended statement of claim in paragraphs 3, 4, 5b, 6 and 7, they had ascertained with definite certainty, the land in dispute. The respondent also relied on the evidence of PW1 Nicholas Nlumanze who was their vendor and sold to them the land in dispute, which was reduced into writing by way of conveyance and tendered and admitted as exhibit A. That annexed to exhibit A, there is a plan No. MC.424/76 where in the extent and dimension of the land in dispute is shown. That their PW1 at page 23 of the record of appeal has clearly stated that the land in dispute is not the same land in dispute in suit No. HOW106/77 and HOW103/77 as the appellants would want to say. That respondent’s PW3 at page 26 of the record of appeal had testified at the lower court that in 1989, the respondent had obtained a certificate of occupancy registered as No. 22/22/225 at the Land Registry Owerri over the land in dispute and same was tendered and admitted as exhibit C. That it is worthy to note that annexed to exhibit C is a plan No. AS.A/IM-1987/89 showing the extent and dimensions of the land in dispute. The respondent further contended that through at the lower court the appellant had claimed that the land in dispute is one and the same piece of land in HOW/106/77 and HOW/103/77, it is surprising that at paragraph 6(c) of their amended statement of defence at page 35 of the records, they pleaded that the land in dispute is bounded on the north by the land of the defendants which was the subject of a High court case in same HOW/103/77. The respondent still referred to the evidence of the appellants’ DW1 named Andrew Ukachi Njoku at page 43 lines 6- 15 of the record as follows:
“There was a time I met PW1 clearing my land not the one in dispute. Then I went to the Magistrate court and sued PW1. It was HOW/106/77. I made a survey plan on the land in respect of HOW/106/77. I served a copy of the plan PW1. As the case was still pending in the Magistrate Court PW1 filed Suit No. HOW/103/77.”
The respondent has then submitted that the trial Judge was fully abreast of the crucial issue that has a risen in this matter when at page 66 of the records of appeal learned trial Judge had reviewed the parties, pleadings and evidence before his findings which was to the effect that the plaintiff’s (now respondent’s) case was that there are two different parcels of land, whereas the present appellants case was that both suits HOW/103/77 and the present suit relate to the same land. The respondent then referred to and relied on the trial Judge’s final findings on this identification issue at pages 71 – 72 of the record of appeal, where the learned trial Judge, had stated that a survey plan is not a sine quo non in all land matters touching on title since declaration can be obtained on land whose identity can be established by oral description as stated in KWAIRO v. ADJEI (1944) 10 WACA 274.
The respondent has further submitted that the trial lower court had relied on the evidence of the surveyor who under cross examination had stated that the area in dispute is different from the land in dispute in HOW/103/77. Counsel further submitted that section 46 of the Evidence Act has not helped the appellants case in that at the lower court, their case was not that they owned the land in dispute based on their owning a adjoining lands, rather their case was that the land in dispute was the same land in dispute in suit No. HOW/103/77. That therefore, the appellants had wrongly relied on estoppel res judicata. That this reliance on res judicata is contrary to the same appellant’s paragraph 15 of their amended statement of defence on page 37 lines 21 – 25 of the record of appeal. The respondent then submits that the Supreme Court has ruled in AKULEZIRI v OKENWA (2000) 15 NWLR (Pt.691) 526, (2001) FWLR (Pt. 35) 604 that counsel must be consistent in presenting their cases from the trial court to the highest appellate court. Respondent has urged this court to resolve issue 1 in favour of the respondent by upholding the decision of the trial court and that the decision was not perverse.
I have considered the parties arguments on issue number 1 which is, whether the trial court was right in holding, that the land in dispute, is not part of the land in dispute in suit No. HOW/103/77 having regard to the evidence adduced.
There is no doubt that in a land dispute, where there is claim for title, the plaintiff must succeed on the strength of his case not withstanding weakness in the defence position. See KODILINYE v ODU (1935) 2 WACA, 336. The above principle is a general law and as stated by the respondent, I agree that it is susceptible to few exceptions and a typical exception is clearly shown in that the present appellant had infact strengthened the case of the plaintiff now, the respondent. Now a careful consideration of the appellants’ amended statement of defence in paragraph 6 (c) and the evidence of their DW1 Andrew Ukachi at 43 lines 7 – 17 has shown the contradictory claim of the appellants, which has supported the claim of title of the respondent. Appellants’ pleadings in paragraph 6(c) reads thus:
“6. The land in dispute is bounded as follows:
(a) …
(b) …
(c) On the north by the land of the defendants which was the subject of a High Court case in Suit No. HOW/103/77 won by the defendants.”
But in appellants’ evidence adduced by their DW1 on page 43 lines 6 – 15 of the records said as follows:
“There was a time I met PW1 clearing my land not the one in dispute. Then I went to the Magistrate Court and sued PW1. It was at Magistrate Court Owerri. It was OW/106/77. I made a survey plan of the land in respect of OW/106/77. I served a copy of the plan on PW1. As the case was still pending in the Magistrate Court PW1 fled suit No. HOW/103/77.”
From the above pleadings and adduced evidence of the appellants, there is contrary position of the appellant’s title to the land in dispute and this has strongly supported the claim of the respondent at the lower trial court that the land in dispute is different from the land in dispute between present appellant and PW1 in suit No. HOW/103/77. This fact is based on the admission of DW1 whose name is Andrew Ukachi Njoku i.e. the first appellant in this appeal. There is more over a solid fact as made by the respondent that the trial Judge was fully aware of the same crucial issue that has arisen in this appeal. Page 66 of the record of appeal, has shown how the learned trial Judge actually reviewed the both sides amended pleadings as well as the evidence of both sides. His Lordship stated correctly as follows:
“The first issue that has arisen and a crucial issue for that matter is whether the land in dispute in this suit is the same as the land that was in dispute in suit No. HOW/103/77.”
The above poser was raised by the trial court it self and now the appellant have just repeated the issue which was properly done and carefully considered by the trial Judge. It is a solid fact that based on the state of pleadings and preponderance of evidence’ the trial Judge had correctly found that the present respondent’s case was that in fact there are two different parcels of land in respect of the matter at hand and the land in dispute in suit No. HOW/103/77. I can even in a repetitive way reproduce the trial court’s findings in his judgment at page72 of the record where it reads:
“…However exhibit “C” the certificate of occupancy has a plan of the land.”
From the above findings as to the identity of the land in dispute, there was also a clear admission of the appellants in their paragraph 6 (c) of the amended statement of defence, which I had earlier on stated. The trial Judge had in fact relied on the evidence of the surveyor DW4 named Uzomah Okoroagu Duru who at page 51 lines 34 – 35 and page 52 lines 1 – 4 while under cross-examination said as follows:
“I did not prepare exhibit E and F and so I could not have seen their original copies. I know the land in dispute. When I was preparing exhibit D, I did not see Exhibit E and F… The area verged in exhibit F is not same as the area verged pink in exhibit D”. (Italics is mine for emphasis).
As shown above, the surveyor evidence has clearly shown that the land in dispute which is exhibit D is different from the land in dispute in suit No. HOW/103/77, which is exhibit F. The confusion was made by the appellants who tendered a photocopy of the original exhibit F and E. The appellant did not even care to call the surveyor who really surveyed exhibits E and F. They merely called DW4 who surveyed exhibit D only. It was therefore wrong for the appellants to rely on three different surveys allegedly showing the same land in dispute. DW4 at page 51 lines 12 – 19 is very devastating for the appellants. It reads:
“At the bottom of exhibit E, the land continues southward. That land ends with pink verge in exhibit D. But in exhibit E that land is inside the area verged pink. The area verged pink on exhibit D is less than the area verged pink in exhibit E”. (Italics is mine for emphasis)
I am therefore of the considered view that the appellant had woefully failed to prove that the land in dispute at the trial court was the same land in dispute in suit No. HOW/103/77, which was between the appellants and PW1 and not the respondents.
On the part of the respondent, it is well established by the evidence of PW1 and PW3 that exhibit C to which a plan was annexed was a sufficient and reliable proof of the identity of the land in dispute. This is supported by the Supreme Court decision in ARABA v ASANLU (1980) 5 -7 SC. 78 when it is stated thus:
“The production in evidence of a survey plan on land, the subject matter of a claim for title is not a sine quo non to an award in favour of such a claim, but the land in dispute must be ascertained with definite certainty …” (Italics is mine for emphasis).
There is sufficient evidence to show that the respondent at the lower court had shown and tendered exhibit C through PW3 who testified that in 1989, the respondent had obtained a certificate of occupancy registered as No. 22/22/225 at the Land Registry Owerri over the land in dispute. Annexed to the exhibit is also a plan No. AS.A/IM-1987-89, which clearly showed the clear extent and proper dimensions of the land, which was bought by their vendor PW1. I am therefore satisfied that the respondents had through oral evidence established their title to the land in dispute. I resolve issue I in favour of the respondent.
Issue No. 2
It is whether lower court was right in holding that the respondent had acquired a valid title.
The appellants submitted that for the respondent to succeed his title, his vendor’s former title must be good and valid on the principle of “nemo dat quod non habet”; and that the certificate of occupancy tendered by the respondent at the lower court should have shown a previous customary ownership before the issuance of the certificate of occupancy. Appellants relied on the case of the Registered Trustees of the APOSTOLIC CHURCH v MRS. EMMANUELA OLOWOLENI (1990) 6 NWLR (Pt. 158) 514 AT 527. Appellants’ counsel referred to the findings of the lower court judgment at page 27 – 28 as well as the respondent’s evidence at cross-examination state where he answered that he purchased the land in dispute from his vendor PW1 in 1976 and that the certificate of occupancy was issued in 1989.
Appellants further submitted that once title to a land is in dispute, the respondent in this case has to prove that he had a prior possession or better right to possession before he could succeed. Counsel referred to the case of NWAKAFOR v. UDEGBE (1963) 1 ALL NLR 412, 418, (1963) 1 SCNLR 189; CHINWENDU v. MBAKALI (1980) 3 – 4 SC, 31; NWOSU v. OTUNOLA (1974) 1 ALL NLR (Pt. 1) 533 and the case of AJUWA v. ODILI (1985) 2 NWLR (Pt. 9) 710, 726. Counsel then urged this court to hold that the respondent did not prove his valid and proper title to land in dispute.
On the part of the respondent on issue 2, learned counsel contends that they had, root of title as per their paragraphs 3b, 4, and 7 of the amended statement of claim, and referred to pages 30 and 33 of the record of appeal in which PW1, Nicholas Kamula alias Nlumanze had stated on oath that the land in dispute, was originally their family land by virtue of inheritance from their ancestor and that it was himself and his uncle named John Nlumanze, that sold the land to the respondent in 1976 and that they executed the deeds of conveyance exhibit A in favour of the respondent. PW1 still traced the traditional history of the land in dispute from “Di Ada” who deforested the land and latter transferred it to the Nlumanzes who latter sold the land to the respondent.
The respondent then contended that while they have established their root of title, the appellants could not establish a better title, but merely claimed that the land in dispute is the same land in dispute in suit No. HOW/103/77; but which the trial Judge had correctly found that it was not the same land based on pleadings and evidence, and that the appellants had merely stated that the land in dispute was their land by couquest, and still contradicting themselves that the land in dispute was a virgin land which was deforested by their forebear, named Onyeali. Learned counsel for the respondent urged this court to affirm the findings and decision of the lower court based on pleadings and evidence on record.
After a careful scrutiny of the parties’ amended pleadings and relevant evidence relating to the root of title as claimed by both parties, there is need to appreciate the position of law relating to proof of title to land in dispute”
To succeed for a claim to title, a party who holds a certificate of occupancy will need to show its root of title i.e. through his vendor and that vendor or seller has to show valid title to the land over which the purchaser secured his certificate of occupancy. see the case of ESO v. ADEYEMI (1994) 4 NWLR (pt. 340) 558, 573 where this Court re-stated the position of law on proof of title as follows:
“The certificate of occupancy… can only be valid if the root of title originates from the customary owners of property.
In other words he should be able to show that the certificate of occupancy was issued in his favour after he had properly acquired the properly through the persons who were the holders.”
Now, I have seen that in a proper way, to satisfy the position of the law in ESO v. ADEYEMI, the respondent referred to their pleadings in their amended statement of claim at pages 30 and 32 as follows:
“3b The land in dispute belongs to Messrs Nicholas Nlumanze and John Nlumanze of Egbelu Orji Uratta who inherited same from their ancestors. Nlumanze inherited the land from his father “Di Ada” who deforested same. After Nlumanze’s death, his son Kamalu and John Nlumanze succeeded to the land in dispute under the native law and custom of Orji people on succession. Kamalu begat Nichola Nlumanze. Upon Kamalu’s death, John Nlumanze inherited the land in addition to other portions of land deforested by Di Ada.
- The land in dispute belongs to the plaintiff by purchase … in 1976 from the previous owners, Nicholas Nlumanze and John Nlumanze both of Orji Uratta at a price of N7,000.00… The Deeds of Conveyance dated 2nd August 1976 and registered as No. 74 at Page 74 in Volume 118 of the land Registry in the office at Owerri together with plan No. MC.424/76 annexed there to, wherein the extent and dimension of the land in dispute is shown is hereby pleaded …”
- In 1989, the plaintiff applied for and obtained a certificate of occupancy over the land in dispute. The certificate of occupancy dated 08-09-89 together with Plan No. As./IM-1987/89 and the description of the land annexed thereto, registered as No. 22 at page 22 in Volume 255 of the Land Registry in the office at Owerri is hereby pleaded …”
The above pleaded paragraphs 3b, 4 and 7 were fully proved by the respondent’s witnesses PW1 and PW3 at pages 21 – 25 and 27 – 28 of the record. I am therefore satisfied that the respondent as plaintiff at the lower court had established solid facts relating to their root of title as pleaded, and the appellants could not dislodge the respondent’s valid evidence. But the appellants found themselves on slippery ground because they put their evidence on an allegation that the land in dispute belonged to them being part of the same land in dispute in suit No. HOW/103/77 which was a matter in which the respondents were not a party, and more over, the trial court had found that the land in dispute in this appeal is a different land from the land in suit No. HOW/103/77. Later in an after thought, the appellants in the most probable manner after reading the plea of the plaintiff/respondent that the root of title emanated from “Di Ada” by deforesting and later the land was inherited to the respondent’s vendor, the appellants went into a frolick of copying by claiming that their forebears got the land by conquest and latter by a forestation. If one may ask, how can a land by conquest become a virgin land? By virgin land, it is meant to be a land that was never used. More over, the appellants could not describe the traditional custom of movement of the conquered land from the warlord to the present appellants.
Consequently, the land in dispute as evidenced by traditional history being the root of title belongs to the respondent who purchased the land from the original owners to which same land was issued a valid certificate of occupancy. I therefore resolved issue No. 2 in favour of the respondent.
In the final analysis I am of the considered view that the appeal is unmeritorious and am dismissed. I affirm the judgment of the trial Judge L. C. Alinnor (J) delivered on 30th May, 1995.
I award cost of N5,000.00 (Five Thousand Naira in favour of the respondent against the appellants.
Other Citations: (2006)LCN/1936(CA)
