Oguamanam Eke V. Nzekwe Eluwa & Anor (2000)
LawGlobal-Hub Lead Judgment Report
AKPIROROH, J.C.A.
This appeal arose from the decision of the learned trial Judge in the court below in an action in which the plaintiff now appellant claimed as follows:-
(a) A declaration that the plaintiff is entitled to a statutory certificate of occupancy of the property.
(b) N100,000.00 general damages for trespass.
(c) Perpetual injunction restraining the defendants, their servants agents or privies from interfering with the plaintiff’s rights and interest howsoever in the property”.
The 2nd defendant now respondent filed a statement of defence and counter-claim and claimed as follows:
(a) The deed of conveyance dated 19th November, 1974 and registered as No. 94 at page 94 in volume 756 of the Register of deeds Owerri and purported to have been executed by Oluigbo Nlemadim Nkenze of Orji in favour of the plaintiff is void.
(b) The statutory certificate of occupancy No.16 of page 16 in volume 230 of the register of deeds in respect of Plot 433 works layout Owerri granted to the plaintiff pursuant to that deed of conveyance set out in sub- paragraph (a) of this paragraph is void;
(c) An order setting aside that deed of conveyance and that statutory certificate of occupancy;
(d) Injunction perpetually restraining the plaintiff from committing any further act of trespass upon the land subject-matter of this suit;
(e) We claim N10,000.00 (Ten thousand Naira) being damages for trespass committed by the plaintiff upon the land subject-matter of this suit”.
The gist of the plaintiff/appellant’s case at the trial was that in 1974 he acquired a piece of land at the Egbelu Orji form one Oluigbo Nlemadim and in 1976, he acquired another piece of land adjacent to the first one from the same vendor.
The two deeds of conveyance were tendered in evidence. He later applied for a statutory certificate of occupancy which was granted to him in 1989 covering a part of the land he acquired from Oluigbo Nlemadim Ekenze.
It turned out that the same parcel of land for which the appellant was granted a statutory certificate of occupancy was granted to Hon. Justice Sylvester Amadi-Obi now deceased.
The plot known as plot 433 was one of the plots granted to Hon. Justice Amadi-Obi in 1980. During the life time of Hon. Justice Amadi-Obi, the Ministry of Lands, Survey and Urban Development invited both of them for interview in order to resolve the issue of double allocation of plot 433 Works Layout, Owerri, but the matter was not resolved before the death of Hon. Justice Amadi-Obi in 1993.
It is the 2nd respondents’ case in his statement of defence and counter-claim that his late father, Hon Justice Amadi Obi acquired the land in dispute on 24/4/65 through a deed of conveyance and retained the possession of the land until the area was planned and parcelated by the Government of Imo State. Consequently upon the parcellation, the land yielded plots 427, 432 and 433.
When his father noticed the presence of a third party on the land, he petitioned the Ministry of Lands, Owerri and as a result of his petition, series of meetings were held which eventually re-affirmed that the land in Exhibit E belonged to his father.
At the end of the trial, the learned trial Judge dismissed the appellant’s claim in its entirety. Dissatisfied with the decision, the appellant has appealed to this court on seven grounds of appeal.
The parties filed their respective briefs of argument. The appellant identified three issues for determination as follows:-
(i) Whether the court was right in granting the 2nd defendant the reliefs he sought for in his counter-claim to wit setting aside the plaintiff’s Exhibits ‘A’ & ‘c’ considering among other things that there was no court fees paid on the counter claim?.
(ii) whether the second defendant had a valid title to the land in dispute, Plot 433 Works Layout, Owerri?.
(iii) whether Exhibit C, the plaintiff’s statutory certificate of occupancy did not extinguish the rights covered by Exhibit ‘E’ defendant’s statutory certificate of occupancy?”.
The 2nd respondent identified only one issue for determination as follows:-
”Whether the appellant established a case to entitle him to any relief which he sought at the trial?”
On the first issue, learned counsel for the appellant submitted that there was no counter-claim before the court because the 2nd respondent failed to pay the prescribed fees for the reliefs sought in the counter-claim, stressing that default in payment of fees as required by Order 54 Rule 1 (1) of the High Court (Civil Procedure Rules deprived the court from entertaining the counter-claim and relied on the case of Gambari v. Gambari (1990) 5 NWLR (Pt. 152) 572 at 588-589 and Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252. He further argued that the learned trial Judge erred in his approach to non payment of fees for the counter-claim because there was no order made by him to pay the fees and as such, the orders made by him setting aside Exhibits A and C are nullities.
On the second issue, he submitted that the conclusion reached by the learned trial Judge that the parties were disputing the same parcel of land is speculative because the title deeds of the parties do not refer to one and the same land.
He further argued that, since Exhibits A and D do not refer to one and the same land, the appellant proved his title to the land, conveyed in Exhibit A. He further submitted that, the fact that the 2nd respondent obtained Letters of Administration over the estate of his father in 1994 was not pleaded. He contended that he had sold the property before he obtained Letters of Administration to administer his father’s property and as such, he had no legal title to plot 433, Works Layout, Owerri at the time he sold it. The trial Judge therefore erred when he held at page 69 of the records that because the plaintiff did not cross-examine the 2nd defendant when he stated that he obtained Letters of Administration to administer the estate of his father in 1994, that the case was fought on the premises that he had a valid title to the land.
On the third issue, he submitted that the learned trial Judge was in error when he further held that Exhibits F and E expressed the disposition of the Governor to correct any error that led to the erroneous allocation of Plot 433 to the plaintiff. He relied on section 5(2) of he Land Use Act and the case of Saude v. Abdullahi (1989) 4 NWLR (Pt 116) 387 at 416. He further submitted, that if the Commissioner of Lands and Survey & Urban Planning or the Executive Adviser to the Governor on land matters wanted to set aside Exhibit C (his statutory certificate of occupancy) he would have said so. He further argued that the appellant’s statutory certificate of occupancy having been issued nine years after the 2nd respondent’s father statutory right of occupancy over the same piece of land extinguished whatever right the 2nd respondent’s father had over the land by virtue of section 5(2) of the Land Use Act.
Learned counsel for the respondents referred to Exhibits A, B, C, relied on by the appellant in proof of his title to the land in dispute and submitted that the appellant failed to discharge that burden which weighed heavily on him to show a good tile to the land, stressing that Exhibits D and E relied on by the 1st respondent disclosed a better title to the land in dispute. He further argued, that Exhibit F shows clearly that Exhibit C was issued to the Appellant in error. He further contended that the cases cited by learned counsel for the appellant did not decide that a grant of certificate of occupancy without more extinguishers vested rights over the same land when such rights had not been revoked in due compliance with the procedure set out by the Land Use Act.
On the counter-claim, he submitted that the respondent paid the assessment fees for it and the appellant did not state the fees the respondent ought to have paid for it. He further contended, that if this submission is not acceptable to the court, failure to pay fees is a mere irregularity which is not fatal to the counter-claim, stressing that due fees can be paid subsequently to sustain a relief which is otherwise claimed by the plaintiff and relied on the case of ACB Ltd v. Henshaw (1990) 1 NWLR (pt.129) 646 at 650.
The first issue that calls for determination in this appeal is as between the appellant and the late father of the 2nd respondent who has a better title to plot 433, the land in dispute.
From the pleadings and the evidence led by the parties, the land in dispute is plot 433 for which Exhibits C and F were granted respectively to the appellant and the father of the 2nd respondent, and as such the submission of learned counsel for the appellant that the land in dispute is not the same is of no moment.
In proof of his title to the land in dispute, plot 433, the appellant relied solely on Exhibits A, B and C. He did not call his vendor as a witness to testify as to how he came to be in lawful occupation of the land from time immemorial as contained in the recital of Exhibit A. Exhibit D, the deed of conveyance of the father of the 2nd respondent over the land in dispute was executed on 24/4/69 and subsequently registered as No. 68/68/283.
Eventually, his father obtained a certificate of occupancy Exhibit E over the land in dispute when it was confirmed that it belonged to his father as borne out by Exhibit H.
The respondent on the other hand obtained his deed of conveyance, Exhibit A, over the same land on 19/11/94. Later a certificate of occupancy, Exhibit C, was granted to him over the same land on 12/12/89.
As is said earlier, the appellant based his root of title on Exhibit A, and called no witness in support of it. The 2nd respondent denied it in his pleading and evidence before the court. Mere production of Exhibit A by the appellant is not sufficient proof of his title to the land in dispute. This is more so when the 2nd respondent denied it. It is settled law that, if the defendant denies the title of the plaintiff even after the plaintiff has produced his deed of conveyance as his root of title, as was done by the appellant in this case, he must go further to establish the title of his vendor before he can claim to have made out a case that would shift the burden of proof on the defendant.
As Nnaemeka Agu, J.S.C. put it succinctly in the case of Ogunleye v. Oni (1990) 2 NWLR (Pt 135) 745 at 782-783:-
“But it would be wrong to assume … that all that a person who resorts to a grant as a method of proving his title to land needs to do is to produce the document of grant and rest his case Rather, whereas … it may suffice where the title of grantor has been admitted, a different situation arises in a case like this where an issue has been raised as to the title of the grantor. In such a case the origin of the grantor s title has to be averred on the pleading and proved by evidence … this court has made it clear in several decisions that if a party bases its title on a grant…that party must go further to plead and prove the origin of the title of that particular person, family or community unless that little has been admitted.”
Besides, the recital in Exhibit A provides as follows: –
“1. The vendor has been in lawful occupation of the land hereby conveyed since time immemorial.
- The vendor is desirous of conveying his interest in the land to the purchaser at the price of N700.00 (seven hundred naira)”
The habendum provides as follows:
“(a) The vendor for himself and on behalf of his family hereby conveys unto the purchaser all that parcel of land situate and lying along Owerri/Okigwe Road (facing Health Office Owerri) known as and called “EGBELU ORJI” and which said property is particularly described in the survey plan No. E/GA/707/74 annexed hereto together with the schedule below to hold unto the purchaser to the intent that the land hereby conveyed be held henceforth for an estate in fee simple absolute in possession freed and discharged from all incidents of customary tenure.”
At page 71 lines 33, page 72 lines 1-8 the learned trial Judge said:-
“In the instant case, all that the plaintiff was to produce is Exhibit A. He did not plead nor did he lead evidence of the root of title of his vendor. This omission rather than help his case rendered the failure fatal to the plaintiff’s case.
Since the defendants have been hotly contesting the root of title of the plaintiff he should have pleaded and proved how his vendors came to the land in dispute…”
Suffice it therefore to say that Exhibit A and B do not show that the appellant has a better title to Plot 433, the land in dispute than the father of the 2nd respondent who obtained his deed of conveyance, Exhibit D, in 1965.
Exhibit A and B do not disclose the appellant’s valid title to the land in dispute and as such they cannot support a valid grant of Exhibit C over Plot 433 to him because they are not founded on a valid prior interest. Again Nnaemeka-Agu, J.S.C. is Ogunleye v. Oni (supra) said at page 784:-
“where as in this case, a Certificate of Occupancy has been granted to one of the claimants who has not proved a better title, then it has been granted against the letters and spirit of the Land Use Act. The courts cannot close their eyes to the weakness of his (plaintiff’s) case for entitlement to it and hold that his weak title has been strengthened by the grant of the certificate of occupancy.
Indeed, a Certificate of Occupancy properly issued under Section 9 of the Land Use Act ought to be a reflection and an assurance that the grantee has to be in occupation the land. Where it is shown by evidence that another person had a better right to the grant, the court will have no alternative but to set aside the grant if asked to do so.”
As I said above, Exhibit C, was granted to the Appellant in 1989 after Exhibit E had been granted to the father of the 2nd respondent by the same Commissioner for Lands in 1980. Exhibit E was not revoked before Exhibit C was granted to the appellant. Nnaemka-Agu, J.S.C., held in Ogunleye v. Oni (supra) at page 784 said that such a grant of a right of occupancy by the governor or commissioner on his behalf to a party when another person’s right of occupancy has not been revoked is invalid.
The contention of learned counsel for the appellant that the grant of Exhibit C to the appellant extinguished Exhibit D granted to the father of the 2nd respondent is totally misplaced and section 5 (2) of the Land Use Act and the case of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 relied on by him are not applicable to the facts of this case, Exhibit F puts it beyond argument that Exhibit C was granted in error over Plot 433 to the appellant. As was said by Obaseki, J.S.C in Saude v. Abdullahi (supra) at page 416:-
“To save an earlier grant of a statutory right of occupancy the later right of occupancy must be expressly set aside.”
There is no evidence that Exhibit E granted to the father of the 2nd respondent on 1/1/80 was set aside before Exhibit C was granted to the appellant.
Learned counsel for the appellant submitted forcefully that there was no counter-claim before the court because the prescribed fees were not paid. This submission is totally misplaced because the question of payment of adequate or inadequate filing fees on documents for use in court does not raise an issue of jurisdiction and the failure to fulfil the provisions of the High Court Rules in that regard is a mere irregularity which when not taken up timeously or when acquiesced in becomes incapable of affecting the proceedings in any way. See A.C.B. v. Henshaw Supra, Ezomo v.Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202 -203, Saude v. Abdullahi supra and Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619 1632. In A.C.B. v. Henshaw at page 651 paragraph G. Oguntade, J. C. A. said:-
“Even if the defendant/respondent had not paid the requisite court fees, this was a matter to be settled before the lower court. The usual remedy being an order by the lower court that the appropriate fees or any shortfall be paid.
It certainly has nothing to do with the jurisdiction of the lower court to entertain the counter-claim.”
The mere fact that the learned trial Judge omitted to order the prescribed fees for the counter-claim to be paid does not affect the jurisdiction of the lower court because it can be ordered that the prescribed fees be paid at the lower court. In the counter-claim, the 2nd respondent claimed that Exhibits A and Care void and should be set aside. He also claimed the sum of N100,000.00 damages for trespass as well as perpetual injunction restraining the appellant from committing further acts of trespass on the land in dispute, Plot 433 Works Layout, Owerri.
However, his evidence before the lower court showed that he had already sold the said Plot 433 and that the company that purchased it commenced building on it before the action was commenced.
In effect, the 2nd respondent had transferred his interest on the land before he filed his counter-claim and as such, the lower court was right in my view in allowing reliefs (a) (b) and (c) and dismissing reliefs (e) and (d) claimed by him in his counter- claim.
In conclusion, the appeal lacks merit and it is hereby dismissed and the judgment of the lower court is hereby affirmed with costs assessed at N3000.00 in favour of the 2nd respondent against the appellant.
Other Citations: (2000)LCN/0775(CA)
