Emmanuel Ikpeogu V. Ogugua Ikpeogu & Ors (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

 This is an appeal against the judgment of the Anambra State High Court sitting in Otuocha delivered on 27/4/2009 by Hon. Justice C.E. Iyizoba wherein Her Ladyship dismissed the case of the plaintiff with no order as to damages and costs. The facts that led to this appeal to wit:

The plaintiff by his further amended Statement of Claim dated and filed on 24/02/2006 claims against the defendants as follows:
1. A declaration that the entire land on which The Church of Cherubim and Seraphim Sabbath Light of God was built and the church itself belong to the plaintiff and his brother.
2. Perpetual injunction restraining the defendants by themselves, their agents and privies or any other person or group of persons whatsoever claiming through them from further claiming ownership of The Church of Cherubim and Seraphim Light of God Healing Power of New Jerusalem Morning Star Umuogene, Umueri Village in Ogbunike.
?3. An order that the 2nd and 5th defendants and families should surrender to the plaintiff forthwith possession of 4 rooms and 2 rooms which they

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forcefully occupied from the patients and workers of the plaintiff?s prayer house on 23rd and 27th February, 1994 respectively with all the appurtenances therein.
4. Perpetual injunction restraining the defendants by themselves, their agents or privies or any other person or group of persons whatsoever claiming with or under or through them from further preventing the plaintiff and his brothers return to their house at Ikpeogu family or community of Umuogene, Umueri Village, Ogbunike and or running his prayer house with his congregation in the said community or family.
5. Seven hundred thousand naira (N700, 000) being special and general damages.

?The Learned trial Judge after the visit of the Court to the locus in quo and considering material facts before it, held that the plaintiff failed to prove title to the land by any of the five ways of proving ownership of land therefore his claims failed in their entirety.

In relation to the counter claim of the 5th, 6th, 7th and 9th defendants, the Court accepted the evidence that the land on which the prayer house/church was built was allotted to their father, Daniel Ikpeogu by Nnagbo

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Ikpeogu, the head of the family. The Court therefore decided that they, on behalf of Mrs Eunice Ikpeogu, Moses Ikpeogu, Chukwumah Ikpeogu, Ifeanyi Ikpeogu and Adaku Ikpeogu are entitled to the use and possession of the prayer house/ church and all the out houses in Ikpeogu Uchegbu?s compound except the 1st defendant?s house and Npukpe Nwakaefi. The plaintiff, his brother and privies were thereby restrained from claiming the prayer house/church and other out houses claimed by him and his brother. The learned trial judge, in view of the fact that all parties herein are members of the same family, in order to encourage settlement, resolution of their differences and to restore the kind of harmony that existed among them, dismissed the case with no order as to costs and damages.

Dissatisfied with the judgment of the trial Court, the appellant initiated this appeal by a Notice of Appeal dated 25/6/2009 containing 9 grounds of appeal and records were deemed transmitted on 4/2/2014. The appellant?s brief was filed on 11/6/2015 and deemed filed on 19/1/2016. A reply brief was filed on 18/4/2016 and deemed filed on 20/4/2016. Respondents?

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brief was filed on 15/2/2016.

In the appellant?s brief settled by Tony C. Ekpo Esq, six issues were identified for determination to wit:
1) Whether the learned trial judge was right to have relied on the defendants? further amended statement of defence filed on 29/3/2006 and former 5th defendant (now 3rd respondent?s) statement on oath containing averments of non juristic (dead) persons, former 1st and 2nd defendants, whose names have been struck out by the trial Court.
2) Whether the learned trial judge erred in law and occasioned a miscarriage of justice when he held that ?the plaintiff and all his witnesses were not eye witnesses to the sharing if the estate. All their evidence is hearsay.?
3) Whether the trial Court was right in holding that Ikpeogu Uchegbu did not share his land during his life time despite the overwhelming evidence that he did so.
4) Whether the plaintiff proved his case as to be entitled to the judgment of the High Court.
5) Whether the material contradictions in the defendants? case described by the trial Court as ?mere inconsistencies? are not sufficient to

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set aside the judgment of the trial Court.
6) Whether the depositions of the defence witnesses (DW1 to DW5) all filed on 7/1/2008, out of time and without payment of normal filing fees and extra filing fees for lateness are not incompetent and invalid.

In the respondents? brief settled by Clem Nwoye Esq, the six issues identified for determination by the appellant were adopted for determination.

After careful consideration of both briefs, I find that the issues for determinations are as follows:
1. Whether from all circumstances of this case, the appellant proved the claim as to be entitled to the judgment.
2. Whether the depositions of defence witness were valid in view of the lack of payment of filing fees.

ISSUE ONE
Counsel submitted that the trial judge erred in law thereby occasioning a miscarriage of justice when he held that the plaintiff and his witnesses were not eye witnesses to the sharing of the estate of Ikpeogu Uchegbu. He argued that PW1 was a direct witness of how the church in question was built and even contributed to its building and that oral evidence regarding proof of title to land through

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traditional evidence is an exception to the hearsay rule. Counsel citedAjuwa v. Odili Suit No: SC 209/1984, (1985) 2 NWLR Pt. 9 Pg. 710; Morenkeji v. Adegbosin (2003) 8 NWLR Pt. 823 Pg. 612; Oyadiji v. Olaniyi (2005) 5 NWLR Pt. 919 Pg. 561; Irawo v. Adedokun (2005) 1 NWLR Pt. 906 Pg. 199 and Section 66 of the Evidence Act 2011 as follows:
?When the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.

Counsel argued that in Igbo customary land law, a father during his lifetime is the owner of all his property including his Obi and Npukpe which is the house provided for his wife during her lifetime. Upon her death Npukpe goes to the last son while the Obi goes to the 1st son. A father may also allocate his property through a will during his lifetime, compliance with customary law only sets in after his death. He submitted from the oral evidence of PW1, PW2, PW4, DW1, DW4 and DW5, that there is overwhelming evidence that Ikpeogu Uchegbu shared his land during his life time. Counsel cited Otun v. Otun (2004) 14 NWLR Pt. 893 Pg.

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381; Asafa Foods Ltd v. Alraine Nig. Ltd (2002) 52 WRN 1 Pg. 5; Olomosola v. Oloriawo (2002) 2 NWLR Pt. 750 Pg. 113; Morenkeji v. Edoho (1978) 6-7 SC 771; Alli v. Akinloye (2000) 7 NWLR Pt. 980 Pg. 485; Abasi v. Onido (1998) 5 NWLR Pt. 548 Pg. 89.

Counsel submitted that both appellant and respondents agreed through their evidence that they have a common ancestor, Late Ikpeogu Uchegbu of Umuogene, Umueri Ogbunike who had four sons namely 1) Nnagbo Ikpeogu 2) Okechukwu Ikpeogu (the appellant?s father) 3) Daniel Nwoye Ikpeogu and 4) Godson Ikpeogu. Counsel argued that where parties to a land dispute derive title from a common grantor or original owner (as in the instant case), the principle of ?quo prior est tempor, potior est jure? which is translated to mean ?he who is first in time has the strongest right? would apply. He citedLawal v. Akande (2008) 2 NWLR Pt. 11260 Pg. 42; Gabriel Nwano v. Martins Ubaeze (2012) All FWLR Pt. 65 Pg. 231. Counsel submitted also that it is in line with natural course for a father to allocate his property to his children in order of seniority, the appellant?s father, High Priest Okechukwu

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Ikpeogu is the elder brother of Daniel Nwoye Ikpeogu (husband of the 3rd respondent), it therefore becomes incomprehensible that the appellant?s father would be subjected under the husband of the 3rd respondent in terms of the grant, allocation and succession of the family property. Counsel citedAbasi v. Qnido (1998) 5 NWLR Pt. 548; Uche v. Eke (1998) 9 NWLR Pt. 564 Pg. 24.

Counsel argued that the inconsistencies in the oral evidence of DW5 regarding whether or not the house in question is made from mud or cement blocks and several other averments in her statement on oath are not ?mere inconsistencies.? He argued further that these inconsistencies such as where the 3rd respondent who claimed that her illiterate husband issued Exhibits J and K being baptismal certificates of John Chimezie and Elizabeth Chikaodili Ikpeogu later claimed the plaintiff issued them are material. Counsel cited Uzoka v. FRN (2010) 11 NWLR Pt. 117 Pg. 118; Ogunjemila v. Ajibade (2010) 11 NWLR Pt. 1206 Pg. 559; Jiboso v. Obadina (1962) WRNER 300; Otitoju v. Govt of Ondo State (1994) 4 SCNJ 224; T.A.O Wilson & Anor v. A.B Oshin & Ors (2000) 6 SCNJ 371.<br< p=””

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The respondents? counsel submitted that the learned trial judge did not err in holding that the evidence of the plaintiff and his witnesses are mere hearsay and that the judgment of Her Ladyship was dispassionate. Counsel submitted also that the probative value attached to evidence as in this case is within the purview of the trial Court, an appellate Court ought to have no business interfering with the findings of facts emanating from such evidence by the Court of first instance. He cited Duruaku v. Nwoke (2015) 15 NWLR Pt. 1483 Pg. 417.

?Counsel argued that the appellant who was born 5 years after the death of his grandfather, Ikpeogu Uchegbu, was not an eye witness to the alleged sharing of the land in question and whatever he said about the land was what he was told. He argued further that the former 1st and 2nd defendants who were direct children of Ikpeogu Uchegbu in their statement of defence denied that their father shared his land among his 4 children. All members of the Ikpeogu family including the family head denied the claim by the appellant that his father was allocated the land where the church was built by their father, the

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appellant?s grandfather. Counsel citedOdutola v. Papersack Nig. Ltd (2006) 11-12 SC; Abiodun Agbetu & Anor. v. Lawson Akinbayo & Anor (2012) LPELR 9749.

Counsel argued that the appellant did not prove his claim to ownership of The Church of Cherubim and Seraphim Sabbath Light of God Healing Power of New Jerusalem Morning Star, Umuogene, Umueri, Ogbunike or the land on which the church was built. Counsel also argued that based on the counter affidavits deposed to by the former 1st and 2nd defendants who were direct children of the Ikpeogu Uchegbu which were unchallenged by the appellant, they are therefore deemed admitted. He cited Duruaku v. Nwoke (supra); Nwosu v. Board of Customs and Excise (1988) 5 NWLR Pt. 93 Pg. 225; Egonu v. Egonu (1978) 11-72 SC 111; Cosmas Ndiwe Ogu v. Ike Ekweremadu (2006) 1 NWLR Pt. 961 Pg. 255.

Counsel argued further that a plaintiff who claims a declaration of entitlement to land or Right of Occupancy has the duty to prove his title. He cited Ogunjemila v. Ajibade (2010) 11 NWLR Pt. 1206 Pg. 581.

?Counsel submitted that the material consideration ought to have been whether Ikpeogu Uchegbu shared his

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land among his children or whether it was Nnagbo, his 1st son who allocated a piece of family land to Prophet Daniel Nwoye Ikpeogu and not whether the house was made from mud or cement blocks, or whether DW5 who was co-defendant with former 1st and 2nd defendant deposed to their affidavit on their behalf are only a matter of details and any inaccuracy therein is a mere inconsistency.

RESOLUTION
In the judgment of trial Court the evidence of each of the appellant?s witnesses were considered by the learned trial judge. The Court held that the witnesses of the appellant and the appellant did not give credible evidence of how his grandfather shared his land, the portion of which is being claimed by the appellant and that he did not discharge the burden of proof to effect that he was entitled to exclusive ownership of the land. The learned trail judge found that the appellant?s father, the original 1st and 2nd defendants (now late) were all siblings of full blood.

Learned trial judge believed that they would not conspire to give evidence against their blood brother. The Court found that the evidence of P.W.2 did not aid the case of the

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appellant since she did not know the grandfather of the appellant, she could not have given truthful evidence of how he shared his land among his four sons. The learned trial judge found that P.W.1 and P.W.2 appeared to be persons who had been schooled to give certain evidence and the Court refused to believe their evidence. I agree after reading the record and the cross-examination of the plaintiff and his witnesses that none of them actually witnessed the partition of the land of Ikpeogu Uchegbu by sharing to his sons. P.W.1 was 12 years old when he purportedly witnessed Ikpeogu Uchegbu share his land.

I agree with learned judge that most of the evidence led through this witness were not pleaded and go to no issue. P.W.2 admitted that she did not know the grandfather of the appellant but gave evidence of how he shared his property. The evidence thus led is inadmissible as hearsay. P.W.3 gave no useful evidence material to the question in issue. The appellant testified as P.W.4. However he was born in 1958 while all evidence led showed that his grandfather died in 1954 and he could not have been a witness to any sharing. I cannot fault the findings of the

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learned trial judge who visited the locus in quo. I cannot fault the conclusion of the learned trial judge on pg. 337 of the record thus:
?It is pertinent to note that the plaintiff?s father, the 1st and 2nd defendants and DW3 are all brothers and sister of the full blood. I do not believe that the siblings will collude to give false testimony against their sibling Okechukwu the plaintiff?s father ? to the extent of testifying that he did not build any structure on the family land all through his life and that the church in dispute was built by Daniel on the land given to him by Nagbo Ikpeogu the 1st defendant and head of the family. The plaintiff and all his witnesses were not eye witnesses to the sharing of the estate. All their evidence was mere hearsay. The eye witnesses and those who should know testified that the plaintiff?s grandfather died in 1954 and not 1958 as alleged by the plaintiff. They further testified that the plaintiff?s grandfather did not share his estate and allocate to the plaintiff?s father the land on which the church was built. I believe their evidence. I am further strengthened in this

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belief by the fact that it is contrary to natural course of events for a father simply because one of his sons requested for land on which to build a church to now summon all his sons and share his estate including giving out his Obi to his first son in his life time and the Nkupke to his last son during the lifetime of his wife. Succession to Obi and Nkupke are devises that occur as a matter of course without pronouncement. I do not believe that any such incident occurred.?

I also do not believe the story of the appellant that his grandfather made gifts of his land intervivos to his sons. I believe the appellant did not prove his claim. I resolve the first issue against the appellant.

ISSUE TWO
Learned appellant?s counsel submitted that the learned trial judge was in error to have relied on the further amended statement of defence filed on 29/03/2006 and statement on oath of the 3rd respondent filed on 7/1/2008 both being averments of non-juristic (dead) persons; former 1st and 2nd defendants whose names were struck out by the trial Court on 31/5/2006 and 4/10/2005 respectively. Counsel argued that as at 29/3/2006 when the further

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amended statement of defence was filed, the former 1st and 2nd defendants had died, therefore they could not have made the averments credited to them in paragraphs 2, 3, 4, 5, 6, 7, 8, 9,13,13 (b), 14 (b), 17, 18, 19, 20, 21, 23, 25, 29, 30, 31, 36, 37, 39, 40, 41, 42, 43, 44, 45, 48, 50, 51 and 53 of the further amended statement of defence and counter-claim therein. Counsel argued also that the statements credited to the dead former 1st and 2nd defendants in the deposition of the 3rd respondent could not have been made by the dead persons neither could they have given their consent. Counsel argued further that paragraphs 5, 6, 7,11,12,14,15,19, 20, 26, 27, 28, 29, 30, 32, 33, 36, 41, 44, 47, 54 and 55 in the 3rd respondent?s statement on oath belonged to non juristic persons i.e the former 1st and 2nd defendants and that they had died for a long time before their names were struck out by the Court on 30/5/2006 and 4/5/2005 respectively. Counsel cited Section 117 (1) of the Evidence Act 2011 as follows:
?Every affidavit taken in a cause of a matter shall:
1) Be in the first person, and divided into convenient paragraphs numbered

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consecutively.?
And Section 119 (4) of the Evidence Act 2011 as follows:
?where two or more persons join in making an affidavit, their several names shall be written in the jurat and it shall appear by the jurat that each of them has been sworn to the truth of the several matters stated by him in the affidavit.?

Counsel submitted that the Court is therefore always enjoined to strike out the offensive paragraph. He cited FBIR v. Babaoye (1974) 1 NMLR 136; SFMG v. Sanni (1989) 4 NWLR Pt. 117 Pg. 624; Lawal- Osula v. UBA Plc (2003) 5 NWLR Pt. 813 Pg. 376; Victor J. B Aniekan v. Mrs Lilian B. Aniekan (1999) 12 NWLR Pt. 631 Pg. 491.

Counsel submitted that the statements on oath of DW1 to DW5 are completely incompetent because they offend the provisions of Or. 44 R. 5 of the High Court (Civil Procedure) Rules of Anambra State 2006. He argued that the witnesses? statements on oath were filed 10 months and 21 days on 7/1/2008 after the order of Court was made on 13/1/2007. Counsel cited Ojukwu v. Onyeador (1991) 7 NWLR Pt. 203 Pg. 286. Counsel urged this Court to allow the appeal and dismiss the judgment of the lower

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Court.

Learned respondents? counsel in opposition argued that the trial Court was right in relying and acting on the averments of the former 1st and 2nd defendants in the further amended statement of defence and the deposition of the 3rd respondent because the former 1st and 2nd defendants were sued as parties to the suit in their lifetime and their statement of defence was prepared based on their instruction to counsel. He argued also that the death of the former 1st and 2nd defendants did not extinguish the facts in this suit while the matter was pending therefore once properly before the Court, the trial Court was right to accept the statement of defence as such. Counsel cited Salami v. Oke (1987) 4 NWLR Pt. 63 Pg. 1; Mobil Oil (Nig.) PLC v. I.A.L 36 INC (2000) 6 NWLR Pt. 659 Pg. 146; ACB PLC v. Nwanna Trading Stores (2006) LPELR 5215, (2007) 1 NWLR Pt. 1016 Pg. 596.

Counsel submitted that an affidavit duly sworn before a person authorized to take oaths remains effective and efficacious even after the death of its maker and that it is trite that the only way to challenge facts contained in affidavits in law is by a counter affidavit. Once

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this was not done, they are deemed to have been admitted and shall not be challenged by mere argument. He cited Febson Fitness Centre v. Cappa H. Ltd (2015) 6 NWLR Pt. 1455 Pg. 263. Counsel argued that the order to DW1 to DW5 to file witnesses? depositions was made on 13/11/2007 and that the plaintiff/appellant was aware of this irregularity at the trial Court but failed to raise it, the effect therefore is that he is deemed to have waived the irregularity, hence he cannot be heard to raise the issue for the first time on appeal without leave. Counsel citedOlaniyan v. Oyewale (2008) 5 NWLR Pt. 1079 Pg. 114.

RESOLUTION
There are two complaints in this issue:
1) That the learned trial judge relied on the evidence of non-juristic persons who were dead to arrive at some findings of fact.
2) That the statements on oath of D.W.1 and D.W.5 were filed out of time contrary to the provisions of Or. 44 R. 5, penalty not having been paid on them as required by law and are incompetent processes.

During the trial, when 5th defendant as DW5 gave evidence, he tendered Exh. O, a counter affidavit sworn to by the original 1st defendant who

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died during the course of the trial. Mr. Obumse, counsel to the appellant did not object to the admissibility of the counter affidavit which was part of the process at an earlier litigation- Suit No OT/20/94. In the counter-affidavit the 1st defendant had sworn that he was the uncle of the appellant and that he gave the land on which the house was built to his brother Prophet Daniel Ikpeogu to build a church when Daniel requested for it. The learned trial judge held as follows on pg. 336 of the record:
?1st defendant Nnagbo Ikpeogu, the 1st son of Ikpeogu Uchegbu died and was struck out as a party. The 2nd defendant Godson Ikpeogu died in 2002. Both were brothers of full blood to Okechukwu Ikpeogu, the plaintiff?s father. They did not testify before their death. However in Exhibit O tendered in evidence by D.W.5 Chizoba Ikpeogu, a counter affidavit deposed to by Nnagbo Ikpoegu, Nnagbo deposed that he gave out a portion of land for the building of the prayer house his late brother Prophet Daniel Ikpeogu. In Exhibit Q a counter affidavit deposed to by 2nd defendant Godson Ikpeogu, he deposed that the church in the family compound was founded and

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built by Prophet Daniel Ikpeogu six years before the birth of the plaintiff. Although they were not cross examined but the affidavit evidence represents their view.?

It is clear that the learned trial judge considered the averments in the counter affidavit which were part of the process in a previous litigation. As said earlier, the documents were admitted without objection of counsel. Ex facie these exhibits if pleaded are relevant and thus admissible. Okonkwo Okonji v. George Njokanma (1999) 12 SCNJ 295. Generally though documents used by a party in previous proceedings can be used against him Eyifomi v. Ismail (1987) 2 NWLR Pt. 57 Pg. 458.

The complaint here is not that they were not pleaded. In any event, it is clear from the judgment of the learned trial judge that the judgment was not based solely on the contents of the counter affidavits. Secondly it was the duty of the appellants to successfully rebut the evidence by other evidence on oath in order to tilt the preponderance of evidence in his favour.

?The 2nd complaint is that the evidence on oath of D.W.1 and D.W.5 were filed out of time and are incompetent. I am of the strong

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view that having not raised the issue of the irregularity of the witness depositions on time at the High Court, the appellant cannot surprise the respondents by raising the issue here for the first time on appeal. Where the territorial or subject matter of jurisdiction of the Court is in question, that is a matter that cannot be waived by any party as a party cannot by itself confer jurisdiction on a Court. However when it deals with the competence or want of competence of a Court process which is guided by the rules of Court, when there is no timeous objection by the adverse party, the irregularity in the process can be deemed as having been waived.

In this case, Or 44 R. 5 of the High Court Rules provides as follows:
“Any party who defaults in performing an act within the time authorised or limited under these rules shall pay to the Court an additional filing fee of N200.00 (two hundred naira) for each day of the default at the time of compliance.”
The respondents conceded that they were out of time in filing the witness statements of D.W.1 and D.W.2. However Or. 5 R. 2 of the High Court (Civil Procedure) Rules of Anambra State 2006 provides as

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follows:
Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The judge may give any direction as he thinks fit to regularize such steps.

The Courts have drawn a clear distinction between failure to pay penalty and failure to pay filing fees. Payment of filing fees is a precondition to the exercise of the Court?s jurisdiction. See Okolo v. Union Bank (2004) 1 SC PT. 1. Where there is failure to pay filing fees, the process is liable to be struck out as incompetent dependent on the discretion of the Court to order appropriate payment before the process can be countenanced. However where in the course of proceedings, it becomes apparent that a litigant had not paid certain fees as prescribed by the rules of Court, the trial Court may allow the litigant pay the penalty or balance of fees.

The problem here is that this issue is being raised here as a sort of ambush against the respondents.

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Litigation is not a game of chess where ambush is laid against the adverse party to capture the Queen or King.
Having not pointed it out at the trial Court, it would be unfair and against the interests of justice to deprive the respondent of judgment obtained on the merits. This issue is resolved against the appellant. In totality, this appeal fails. The judgment of Iyizoba J. (as she then was) delivered on 27/4/2009 in Suit No. OT/29/94 is hereby affirmed. N50,000 costs to the respondents collectively against the appellant.

Appeal Dismissed.

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Other Citations: (2016)LCN/8879(CA)