Chike Mbamalu & Ors V. Dr. Augustine N. Mozie & Ors (2001)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This is an appeal against a judgment of the High Court of Anambra State of Nigeria, holden at Otuocha, coram Amaizu, J. as he then was, in suit No. 0/124/86 delivered on the 14th July, 1995, wherein he dismissed the plaintiffs’ claim for a declaration that the purported grant of a large area of Omennu family land by the 2nd – 6th defendants to the 1st defendant over the four plots lawfully authorised by the said family was done in fraud of the said family and should be rectified including the registration at the lands Registry at Enugu; an injunction restraining the 1st defendant from trespassing into the area of the said family land outside that lawfully granted him; and another injunction restraining the 2nd to 6th defendants and their agents etc. from alienating the said portion of land to the 1st defendant, without the consent and authority of the adult members of the said family, with no order as to costs.
The amended claim of the plaintiffs, which finally went to trial was worded as follows:
“16. Wherefore the plaintiffs who are adult members of Omennu family of Umueri Ogbunike in Anambra Local Government Area of Anambra State of Nigeria claim against the defendants jointly and severally as follows:
i. A declaration that the plaintiffs including the 2nd to the 6th defendants and all the adults of Omennu family are entitled to the customary right of occupancy relating to the piece and parcel of land known as and called Ani Owelle situate at Umueri Ogbunike except the area denoted by plan No. ECAS 4/79 of 13/1/79 measuring 1847.506 square metres granted to the 1st defendant by the 2nd to 6th defendants on or about July 1978 with the consent and authority of the whole Omennu family. The exact delineation of the said land is shown in Plan No. MG AN 245/86 verged red, yellow and green.
ii A declaration that the purported grant by the 2nd to the 6th defendants to the 1st defendant of a larger area of the land other than that denoted in plan ECAS/287/82 of 15/5/82 containing 18,239.186 square metres in the building certificate of occupancy registered as No. 32 at page 32 in volume 555 of the Lands Registry at Enugu and verged yellow in plan No. MG AN 245/86 is done in fraud of the plaintiffs and other adult members of Omennu family except the 2nd to the 6th defendants and the said document or grant is void and of no legal effect.
iii Rectification of the Register in the Lands Registry, Enugu regarding the said building certificate of occupancy No. 32 at page 32 in volume 555 of the Lands Registry Enugu issued in favour of the 1st defendant.
iv Perpetual injunction restraining the 1st defendant himself, his servants, agents and/or privies from further trespassing on land or lands outside the area granted to the 1st defendant denoted in Plan No. ECAS 4/79 of 13/1/79 and verged brown in Plan No. MG AN 245/86.
v. An injunction restraining the 2nd to the 6th defendants by themselves, their servants and agents from alienating the said portion of land to the 1st defendant without the consent and authority of the plaintiffs and other adult members of the said Omennu family.
Dated at Enugu this 20th day of February, 1989.”
The facts of the case of the plaintiffs may be summarised as follows:-
Both the plaintiffs and defendants are members of the same family known as Omennu family of Umueri, Ogbunike. The said family has a huge expanse of land known as and called Ani Owelle, part of which they farm upon and the other part they layout into plots, which they allocate to male adult members of their family on payment of a token fee of N100.00. Sometime in December, 1977, the 1st Defendant, (Dr. Augustine N. Mozie) applied orally to the family for the grant or allotment of land on which to build a Cottage Hospital and his residential house. The said application came up before the general meeting of the family in July, 1978. According to the plaintiffs, 1st defendant applied for four plots of land to enable him build a Cottage Hospital, and his residential house. The said application was duly approved, and the land Allocation Committee of the family duly mandated to carve out four plots of land to the first defendant even though he had not paid his application fee of N100.00. The said four plots of land were to be carved out of the area of the family land near to the Onitsha Express Road, so as to prevent their State Government from continuing to encroach into their family land. The 2nd to 6th defendants in this case together with the 1st defendant himself were all members of the Land Allocation Committee. Not surprising therefore, the 1st defendant succeeded in manouvering the other members to allocate to him more than the four plots the family approved for him. It should be noted that the 6th defendant, Nathaniel I. Mozie is either the junior brother or nephew to the 1st defendant. He was also the General Secretary of the overall family union. The fact that 1st defendant was allocated more than four plots was not immediately known to other members of the family until after 1st defendant had completed the building of his Cottage Hospital and residence, and then built a concrete fence to surround them. It was at this juncture that critical members of the family began to observe and comment that 1st defendant
has been given more than the four plots approved for him by the family meeting. In due course questions were actually asked openly at their next family meeting. The 1st defendant was actually asked to produce the Deed of Conveyance by means of which the land was granted to him and the relevant survey plan. After some long delay, the 1st defendant ultimately tendered a Deed of Conveyance and a survey plan at the family meeting held on 14th July, 1985. He also revealed that he had already used the said documents to apply for and obtain a Certificate of Occupancy in respect of the said land. It became very clear from the said documents that the Land Allocation Committee had given to the 1st defendant far more land than was approved for him by the family meeting. Tempers rose high; and people began to ask supposing every other person was given land as big as that, would there be any more family land left for future members of the family? In due course, the matter was taken before an organization known as UMUADA for adjudication.
The said organization found as a fact that 1st defendant had taken more than the four plots of land approved for him by the family, and so ordered him to return the excess land to the family and retain only the four plots officially granted him. But first defendant would not burge, and so the present plaintiffs instituted this action against the 1st defendant and the other members of the Land Allocation Committee as already set out above.
The case of the defendants (now respondents) on the other hand was quite short and straightforward. They averred that the 1st defendant in his letter of application to the family, did not specify the quantity of land (or number of plots) he wanted. He simply said that he wanted land to build a Cottage Hospital and his residence.
At the trial they tendered the said letter of application dated 5/8/78 which did not state the number of plots applied for. According to defendants, they simply used their discretion to grant the 1st defendant the quantity of land they considered sufficient, which however was far more than four plots.
At the trial the 6th defendant (i.e. the family secretary) produced the alleged letter of application which was a typewritten document by the 1st defendant. But surprisingly he failed to produce the family Minutes Book, which was under his custody. Instead, he explained that his house was burgled at the material time, and that the minutes book was among the properties stolen from his house. At the end of the trial, the learned trial Judge, AMAIZU, J. (as he then was) held that the plaintiffs did not prove fraud against the defendants beyond reasonable doubt as required by section 138(1) of Evidence Act 1990, and also that certain vital witnesses were not called such as a representative of Umuada Organisation. He therefore invoked the presumption of law contained in section 149(d) of Evidence Act, 1990 against the plaintiffs. He found against them and dismissed their claim in its entirety with no order as to costs.
The plaintiffs were dissatisfied with the said judgment and so have now appealed to this court on three grounds of appeal, from which the following two issues for determination were fonnulated:”
It is the humble contention of the appellants that based on the grounds of appeal filed in this case the following issues call for determination in this appeal, viz:-
i) Was the learned trial Judge right when he held that the appellants had not proved the fraud alleged against the respondents beyond reasonable doubt?
ii) Was the learned trial Judge right when he held that the appellants had not established their case?
The plaintiffs will hereinafter be referred to as the “appellants” in this judgment.
The defendants who will hereinafter be referred to as the “respondents” also filed their respondents’ brief in which two issues for determination were also identified as follows:
“Based on the grounds of appeal filed in this case, the respondents submit the following issues for determination viz:-
(i) Whether the trial Judge was right, on the evidence before him, to hold that the fraud and forgery alleged and pleaded by the appellants was not proved beyond reasonable doubt.
(ii) Whether the appellants proved their contention that Omennu family granted the 1st respondent only 4 plots of the family land instead of the area shown on Plan No. ECAS/4/79 made on 13/1/79 and reproduced on Plan No. ECAS/2871 82 attached to Exhibit 8, and whether the learned trial Judge was right in holding that the appellants did not prove this allegation which is their case before the court.”
Since the issues formulated in the briefs of both parties are in pari materia, I shall proceed to resolve them in accordance with the formulation in appellants’ brief.
Re Issue (i)
“Was the learned trial Judge right when he held that the appellants had not proved the fraud alleged against the respondents beyond reasonable doubt?”
Under this issue, Chief C.O. Akpamgbo, (SAN), the learned senior counsel for the appellants reiterated his client’s case which was simply that the 2nd to 6th respondents wrongfully granted to the 1st respondent more land than the original four plots approved for him at the general meeting of their family. Learned senior counsel then submitted that the appellants proved their case beyond reasonable doubt at the trial court by first tendering a survey plan No. ECAS/4/79 dated 13/1/79, drawn by Surveyor Chidolue, showing the four plots Originally granted to the 1st respondent. This plan was tendered and admitted as exhibit 1. And when the 2nd – 6th respondents decided to grant to 1st respondent more plots than was approved by their family, they caused another plan No. ECAS/287/82 to be drawn showing a much bigger area of 1.824 hectares instead of the original 1847.506 sq. metres granted to the 1st respondent.
This was tendered and admitted as exhibit 2 at the trial. Learned senior counsel for the appellants then referred to the evidence of PW1 (the Anambra State’s Surveyor-General, Mr. A.O. Obianwu, who testified that after the Survey Plan exhibit 1 had been filed in his office by Surveyor Chidolue, he later applied to withdraw it for amendment, he was duly allowed to withdraw the plan Exhibit 1.
Then a day after that, precisely on 9/1/87 the Surveyor brought back another survey plan exhibit 2, which although bearing the same plan No. ECAS/4/79 as in exhibit 1, and also having the same beacon Nos. as those in exhibit 1, nevertheless had a much bigger area than that in exhibit 1, as the land donated to 1st respondent. According to the evidence the 1st respondent then obtained the amended plan, now numbered as ECAS/287/82 but dated the same date as exhibit 1, and used it to obtain a Certificate of Occupancy, exhibit 8. It was then submitted that what the learned trial Judge had to do in order to decide whether there was or was no forgery or fraud was simply to compare exhibits 1 and 2 and see whether there were unlawful alterations therein or not. But instead of doing that the learned trial Judge resorted to saying that he believed the evidence of the respondents and rejected those of appellants. It was finally submitted on this issue that the era when trial Judges could simply decide cases by resorting to the phrase “I believe” or “I do not believe” are over.
It was further argued that the use of such phrases without really evaluating the evidence of vital witnesses did not estop an appeal court from itself evaluating the evidence and seeing whether there was justification for the use of such expression. The case of Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299, 312-313 and five other cases were cited and relied upon as authorities. This court was thereafter urged to allow this appeal even on this ground.
In respond to the above, Ezeuko Es., SAN, first gave a brief summary or resume of the case for both parties and then submitted as follows:
“On the face of the evidence by the parties, the numerous documentary evidence before the court and tendered by the parties, the admission by the appellants’ witnesses, all combined to destroy the appellants’ case as more specifically shown thereunder and on the face of the consistency in the evidence of the respondents it cannot be said justifiably that the judgment of the court below was rooted in the doctrine of “I believe” or “I do not believe” nor in the numerical strength of witnesses who testified for the parties. Appellants’ case simply crumbled under the inconsistent evidence led by them in support of their case and proof fell far short of the requirement of section 138(1) of the Evidence Act, 1990.
This court is therefore urged to resolve issue NO. 1 in the affirmative.”
I have carefully considered all the legal arguments canvassed above by learned senior counsel on both sides and come to the conclusion that the main issue for consideration in this appeal is whether the Omennu family approved only four plots for the 1st respondent (Dr. Augustine N. Mozie) to build his Cottage Hospital and residence or he was given an unlimited number of plots. The 6th respondent (Nathan Mozie) who was the family’s General Secretary and also the junior brother or nephew to the 1st respondent had testified as DW 1 and tendered a letter purporting to be the 1st respondent’s letter of application for allocation of land to build his Cottage Hospital and residence in which no number of plots was mentioned.
The said letter was admitted and marked exhibit 12. The said letter has been heavily suspected not to be genuine, but to have been specially prepared by 6th respondent for the purpose of this case. The next question is: even if it is conceded that exhibit 12 was the genuine letter of application from 1st respondent, what was the family’s reaction to it? According to the appellants the letter of application had actually specified four plots, and the family approved the four plots for him. But according to respondent’s there was no such specification in the 1st respondents application, and the family instructed members of the land Allocation Committee to carve out the number of plots they considered appropriate for the 1st respondent. It is my respectful view that the best evidence of what was approved for the 1st respondent would be found in the family’s Minute Book for the meeting of that day. 6th defendant as the family secretary had custody of the Minutes Book. But he came out to say that his house was burgled a few days before he gave evidence, and that the Minutes Book was among the properties stolen from his house. It appears that nobody took him to task on that e.g. was the burglary incident reported to the police; if so was the matter ever investigated, and if so, what was the outcome? And what of the extract from Crime Diary? That being so, one had to fall back on whatever secondary or circumstantial evidence that was available. And that takes us to the evidence of PW1 (Amaechi Onyebuchi Obianwu), the Surveyor-General of Anambra State. In his capacity as the Surveyor- General, he keeps custody of the survey plans in the state.
Among such plans he had the original survey plan of ECAS/4/79 prepared by late Chief Surveyor Ejike Chidolue before it was mutilated.
A certified true copy of the said document was tendered and admitted as exhibit I. According to PW1 on 8/1/87, Surveyor Chidolue had sent one of his agents by name Ikejiama to come and withdraw the original of exhibit 1 for amendment, and he obliged and gave it to him. Then on the next day, 9/1/87, the said amended Exhibit 1 was returned or re-submitted. To cut a long story short, PWI said he found that the amended exhibit 1 now numbered as ECAS/287/82 now had a much bigger area of land plotted into it.
This amended plan was later admitted as exhibit 2. The exact dif ference between Exhibit 1 and Exhibit 2 was stated by the Survey or General (PW1) in a letter exhibit 6, which he wrote to the late Hon. Justice Ezekwe who was the counsel to the appellants when he was in practice. The said letter reads as follows:-
“GOVERNMENT OF ANAMBRA STATE OF NIGERIA
Telegrams: PERM WORKS ENUGU MINISTRY OF WORKS,
LANDS AND TRANSPORT,
SURVEY DIVISION,
PM.B.I084
Your Ref………….. ENUGU.
Our Ref: No. E.1938/II/246 12th January, 1989
(All replies to be addressed
to the Commissioner)
Chief G. C. Ezekwe,
of Chief Ezekwe,
Amuzie & Co. Solicitors & Advocates,
11 Bishop Anyogu Street,
Uwani,
Enugu.
SUIT NO. 0/124/86
CHIKE MBAMALU & 3 ORS.
AND
DR. AUGUSTINE MOZIE & ORS.
I have been directed to refer to your letter reference No. GCE/CO/I/89 of 10th January, 1989, and report that our investigations show that Chief (Surv.) Ejike Chidolue, Licensed Surveyor of NO.4 Venn Road, Onitsha who did the surveys registered as ECAS/4/79 and ECAS/287/82 in his letter of no reference but dated 8th January, 1987, requested for the withdrawal of the said Plan No. ECAS/4/79 for amendment. And from our records/register, at p.72 one Mr. Sunday Ikejiama on the same date i.e. 8th January, 1987 signed for Chief (Surv.) Chidolue and collected the said Plan No. ECAS/4/79 for amendment and returned it on 9th January, 1987 after amendment. The said amendment involved the erasure of the original plan which involved a four-sided figure with an area of 1847.546 sq. metres and its replacement with a new seven(7) sided figure with an area of 1.824 Hectares. The new sketch thus agrees with the sketch in Plan No. ECAS/287/82 which is in-congruous.
(Sgd)
(A. O. Obianwu)
Surveyor-General
for: Commissioner”
Now, the important thing to note here is that the land in the original exhibit 1, i.e., Plan No. ECAS/4/79 had an area of 1847.546 sq. metres, which the appellants say is the equivalent of four plots of land (of 100 ft x 60 ft each) while the land in the amended Plan No. ECAS/287/82 has an area of 1.824 Hectares, which the appellants say is equivalent to 30 plots. From the foregoing, it becomes very clear that in 1979 when exhibit 1 was drawn and filed, only 4 plots of land were given to 1st respondent as per the plan No. ECAS/4/79 with area of 1847.546 sq. metres. How come then that in 1982, 3 years after an amended plan with area of land of 1.824 Hectares was fraudulently substituted at the Surveyor-General’s office, and the original plan mutilated?
With these discrepancies or mysteries surrounding the filing of 1st respondents survey plan one is left in no doubt that some fraud was perpetrated. And when it is known that the amended plan No. ECAS/287/82 was hurriedly used to obtain a Certificate of Occupancy, exhibit 8, ever before the family knew anything about it, one is left in no doubt that the 2nd – 6th respondents fraudulently or theftuously gave more land to the 1st respondent than was originally approved by the family. The position would have been different if right from the word ‘go’ only one survey plan was filed with an area of land of 1.824 Hectares. One would say that that must have been what the family granted him. But in the instant case no explanation whatsoever has been given as to why it was necessary to file a second survey plan of 30 plots, after an original plan showing 4 plots (or 1847.546 sq. metres) had earlier been filed. If the above do not prove convincingly that “fraud” has been committed as particularised under paragraph 14 of the amended statement of claim, I cannot see what else could amount to fraud.
It is my respectful view that the appellants proved fraud against the respondents at the court below, beyond reasonable doubt and should have been given judgment. With what I have just said above, it becomes unnecessary to consider issue No.2.
Before concluding this judgment, I feel obliged to say a few words about the remarks made by the learned senior counsel for respondents, all be it as an aside, i.e. that none of the appellants was the head of the family, and that they all sued individually, and not for and on behalf of the family.
The short answer to this quibble was given by the learned trial Judge of the lower court himself when he stated in his judgment at page 141 of the records as follows:-
“The present suit is instituted by four members of Omennu family in their own right. This fact, in my considered view, has nothing whatsoever to do with the merit of their action. This is because a member of a family having an interest in a family land may sue when the head of family neglects or refuses to do so.”
The only thing lacking is that he did not give his authority. I therefore give hereunder the relevant authorities as follows:- see the case of Omerede v.Eleazu (1991) 4 NWLR (Pt 183) 65 C.A. where Omosun, J.C.A. commenting on the right of a family member to maintain an action in protection of family property had the following to say:
“Even though the interests of individual members of a family or community in family or community land are not exactly identical in content and quality, a member can properly represent the family or community in defending their rights in the family or community land.
(Bulai v. Omoyajowo Nigeria Law Quarterly Review 109 at 114 per COKER, J.S.C. (1968) NWLR 160; Dokubo v. Bob-Manuel (1968) 1 NMLR referred to.)(P. 75, para F).”
The next observation I have to make is to commend Mr. Obianwu, the Surveyor-General of Anambra State at the material time, whose candid letter exhibit 6 helped us to arrive at the truth in this case. He lived up to his billing as an independent and impartial witness in this case. In the recent case of Sanni v. Ogunbode (2001) 8 NWLR (Pt.714) 74, the surveyors called by the parties disagreed as to the identity and location of the land in dispute. The court had a duty to call an independent surveyor agreed to by both parties, and the Surveyor -General of Lagos State was called to resolve the impasse, and he did so. It was finally held per Chukwuma-Eneh, J.C.A. at page 84 that:
“Where the two surveyors called by the parties disagree as to the identity of the land in dispute, as in the instant case, the proper approach is to call an independent surveyor agreed to by both parties (Elabanjo v. Darlington (1970) 1 All NLR 41)”
Last, but not the least, I want to say that from the survey plan exhibit 1, otherwise known as Plan No. ECAS/4/79 which showed that 1st respondent was given land with area of 1847.546 square metres, (equivalent to four plots of land), I have no doubt in my mind that the family actually approved four plots of land for the 1st respondent to build his Cottage Hospital and residential house and not an unlimited or indeterminate quantity of land. If in the course of building operations, 1st respondent found that four plots were not enough for his purpose, he should have gone back to the family to ask for more plots, and I am sure they could have given him. But throughout the entire evidence adduced in this case, there was no where it was stated that 1st respondent ever went back to the family to ask for more land. The position therefore appears to me to be similar to a situation in which a party was given say 30 days within which to file a certain document by the court. If he found the period to be insufficient for him to file the document, the normal practice would be for him to go back to court and ask for extension of time which is usually granted as a matter of course. But if such a party gave himself extra time without recourse to the court, such a document will not be properly before the court. It would be incompetent and liable to be struck out. In the similar manner, since the 1st respondent took more land than was originally granted to him without recourse to the family, such taking of extra land was done fraudulently and must be set aside.
This appeal therefore succeeds and is hereby allowed. Judgment of Amaizu, J. (as he then was) dated 14/7/95 is hereby set aside. The appellants are entitled to all the declarations and orders claimed by them under paragraph 15 of their amended statement of claim as follows:-
“1. A declaration that the plaintiffs including the 2nd to the 6th defendants and all the adult of Omennu family are entitled to the customary right of occupancy relating to the piece and parcel of land known as and called Ani Owelle situate at Umueri Ogbunike except the area denoted by plan No. ECAS/4/79 of 11/1/79 measuring 1847.546 square metres granted to the 1st defendant by the 2nd to 6th defendants on or about July, 1978 with the consent and authority of the whole Omennu family.
The exact delienation of the said land is shown in plan No. MG AN 245/86 verged red, yellow and green is hereby made.
- A declaration that the purported grant by the 2nd to the 6th defendant to the 1st defendant of a larger area of the land other than that denoted in plan No. ECAS /4/79 of 13/1/79 contained in Plan No. ECAS/287/82 of 15/5/82 containing 18,239.186 square metres in the building certificate of occupancy registered as No. 32 at page 32 in volume 555 of the Lands Registry at Enugu and verged yellow in plan No. MG AN 245/86 is done in fraud of the plaintiffs and other adult members of Omennu family except the 2nd to 6th defendants and the said document or grant is void and of no legal effect is also hereby made.
- An order of rectification of the register in the Lands Registry Enugu regarding the said building certificate of occupancy No. 32 at page 32 in volume 555 of the Lands Registry Enugu issued in favour of the 1st defendant is hereby made.
- An order of perpetual injunction restraining the 1st defendant himself, his servants agents and/or privies from further trespassing on land or lands outside the area granted to the 1st defendant denoted in plan No. ECAS/4/79 of 13/1/79 and verged brown in plan No. MG AN 245/86 is hereby made.
- An order of injunction restraining the 2nd to the 6th defendants by themselves, their servants and agents from alienating the said portion of land to the 1st defendant without the consent and authority of the plaintiffs and other adult members of the said Omennu family is also hereby granted.”
Costs of this appeal is assed at N5,000.00 (Five thousand naira) in favour of the appellants.
Other Citations: (2001)LCN/0998(CA)
