Prince Ngene Vs Chike Igbo & Anor. (2000)
LAWGLOBAL HUB Lead Judgment Report
OGUNDARE, J.S.C.
By a writ of Summons issued in November, 1977, Chinyelugo Sylvester Omenagu Igbo sued Prince Ngene, now Appellant before us, claiming declaration of title to a piece or parcel of land known as and called “Onuagu” in Ogui Urban Area of Enugu, N5,000.00 general damages for trespass and an Injunction. Pleadings having been filed and exchanged and by leave of Court amended, the case proceeded to trial before P.K.Nwokedi J.(as he then was) at the conclusion of which the learned trial Judge found for the plaintiff Chinyelugo S.O. Igbo in trespass and Injunction but dismissed his claim for title. He awarded to the plaintiff N2,680.00 special and general damages for trespass committed by the defendant on the said land and an injunction restraining the defendant. his servants etc. from committing further acts of trespass on the said land which is delineated on the Plan No. 1513/77 tiled along with the Statement of Claim.
The defendant was dissatisfied with the said judgment and appealed to the Court of Appeal. The plaintiff was also dissatisfied with the dismissal of his claim for title; he too cross-appealed against that part of the decision of the trial High Court. Both appeals came before the Court of Appeal Enugu Division and after hearing learned counsel for the parties, that Court dismissed the defendant’s appeal and allowed the plaintiffs cross-appeal. The Court of Appeal awarded title to the land in dispute to the plaintiff in addition to damages for trespass and injunction earlier awarded to him by the trial High Court. With leave of this Court, the defendant has now further appealed to us upon three original and three additional grounds of appeal. Learned counsel for the parties, pursuant to the rules of this Court, filed and exchanged their respective briefs of argument. While the appeal was pending in this Court the plaintiff Chinyelugo S.O Igbo died and on the applications of both the defendant/appellant on the one hand and Chike Igbo and Dr. Onyechi Igbo on the other hand, both Chike Igbo and Dr. Onyechi Igbo were substituted for the deceased plaintiff/respondent.
The facts are simple enough. For the plaintiff, the land in dispute known as and called “Onuagu” is situate in Ogui renewal layout Enugu. The land was said to belong originally to one Ugwu Mba who together with his two sons Nnamani Ugwu Mba and Ngwu Ugwu Mba granted the same in 1951 to one D.O.C. Nwankwo for farming purposes. In 1961, the said land was conveyed to Nwankwo by Ugwu Mba-Nnamani Ugwu Mba had died by then. The Deed of Conveyance was registered. Nwankwo remained in possession until August 1977 when he, by deed of assignment, transferred his interest in the land to the plaintiff Chiyelugo S. O. Igbo who immediately went into possession. It must be stated at this stage that Nwankwo had been in possession of the land prior to the transfer of his interest to the plaintiff and indeed in 1976 Nwankwo sought and obtained the approval of the Enugu Planning Authority to develop the land. Following the purchase of the land by the plaintiff, he caused building materials, blocks and sand, to be deposited on the land with a view to building thereon. He was however, disturbed on the land by the defendant in October 1977 who without the permission of the plaintiff came on the land and commenced building thereon. The action of the defendant resulted in the plaintiff taking this action.
The defendant denied the ownership of Ugwu Mba of the land in dispute and claimed that the land belonged to Umunamalum family to which Nnamani Ugwu Mba and Ugwu Mba belonged. It is part of defendant’s case that Umunamalum, family in a High Court suit challenged the grant made to the plaintiff; he claimed title to the land in dispute. The defendant claimed that the land was granted to him by the family and admitted he was building on the land.
As stated earlier in this judgment the learned trial judge dismissed plaintiff’s claim to title on the ground that the document made in favour of Nwakwo in 1951 by Ugwu Mba and his sons which document was inadmissible to the Deed of Conveyance made in 1961 to Nwankwo was inadmissible and consequently the 1961 Deed of Conveyance conveyed no title. The learned trial judge however found that the Umunamalum family was an invention of the defendant and that such family did not exist nor own the land in dispute. On the issue of trespass and Injunction, the learned trial judge found that the Plaintiff in this case was in possession of the land in dispute before the defendant arrived and chased plaintiff’s workers away from the land. He also found that the plaintiff deposited blocks and sand on the land and that the defendant had built on the land. He found that the defendant had no title to the land.
The Court below affirmed the findings of fact made by the learned trial judge on the issue of possession to the land but held that the learned judge was wrong on the issues of title to the land. I shall say more of this later in this judgment.
The parties placed before this Court four questions though differently worded. The questions as placed by the defendant/appellant read:-
“I. Whether the irregular procedure adopted by the trial judge and as condemned by the Court of Appeal did not amount to a denial of the parties right to fair hearing under section 33 of the Constitution and whether such a violation does not vitiate the whole proceedings.
- Whether the trial Court and the Court of Appeal ought to have ordered that Umunnamalum family be given a hearing before making such a serious and far-reaching declaration against them.
- Whether the Court of Appeal was right in holding that mere production of an instrument of grant without more is absolute proof that the land in dispute was conveyed to the Respondent and whether the Respondent pleaded and proved native law and custom governing grant.
- Having upheld the decision of the trial judge that Umunnamalum family is non-existent is the Court of Appeal entitled to hold too that the Respondent had established a prima facie case as regards the family from whom he bought the land”.
The plaintiff is his Brief objected to Issue (1) on the ground that it is not predicated on any ground of appeal. I think learned counsel for the plaintiff is right. I have examined the six grounds of appeal and I can find none to support Question (1) raised in the Appellant’s Brief. In respect of Questions (2) and (4) to which objection is taken in Respondent’s Brief and in oral argument of learned counsel for the Defendant/Respondent, I think there are grounds of appeal to support those questions. I strike out Question (1) as not being competent.
As to the remaining questions put before this Court, I am of the view that they fall under two broad issues – (1) whether the Court below was right in awarding title to the land in dispute to the plaintiff and (2) whether the Court below was right in affirming the decision of the trial High Court on the issue of trespass and injunction. It is on these two broad issues that I intend to determine this appeal. The issue of Umunnamalum family which is also raised in his appeal does not seriously affect the conclusion I will reach in this appeal. Whatever was said by the two Courts below on the existence or otherwise of this family would not be binding on the family (if it exists at all as the family was not a party to these proceeding. The defendant did not plead the root of title of his family to the land in dispute. As such the finding that the defendant did not prove title to the land in dispute would still not be affected. Consequently I do not consider it necessary to say more on the existence or otherwise of Umunnamalum family.
(1) Title: On the issue of title the trial High Court observed as follows:
“The Plaintiff predicates his title to the land in dispute on his deed of assignment of lease dated 10th August, 1977 and registered as no. 41 at page 41 in volume 958 of the Lands Registry. Enugu 4. This assignment was granted to him by the PW2. The necessary point to resolve is whether the PW2 had any interest legal or equitable to assign. The title of PW2 is stated to be founded on Exh.2. According to the PW2, he acquired his title by two stages. In 1951, he obtained a farming grant of the said land from the original owner. ‘one Ugwu Mba who together with his two sons Nnamani Ugwu Mba and Ngwu Ugwu Mba granted the same under native law and custom to one D.O.C. Nwankwo for farming in June, 1951’ see paragraph 4 of the statement of claim. The said customary grant was stated to have been later reduced into writing. The document in question is attached to Exh.2 .. There are many things unacceptable as regards the said (sic) dated 9th June, 1951, attached to Exh.2. First, it is not an agreement between Ugwu Mba, the alleged original owner of the land and the PW2. Rather it is an agreement between the son of the said original owner, Nnamani Ugwu Mba and the PW2. Though the document seems thumb printed by the said Ugwu Mba and his second son Ngwu Ugwu Mba, the capacity in which they were executing the agreement was not given. Since they are not stated to be parties to the agreement, one can only surmise that they were witnesses. There is no mention in the said document of any customary grant of which the document was the evidence thereof. The document was not witnessing anything. It was an outright sale of the land included to be conveyed by the said document subject to the payment of a rent charge. The piece of land in question was stated to have been ‘sold’ and subject to the yearly rent reserved the land was to belong to the P.W.2 indefinitely. The instrument was therefore, a registrable instrument under the Land Instruments Registration Law, then applicable in 1951. If the instrument had showed a pre-existing title to the land in dispute as in the present allegation, found in Customary grant, it would have needed no registration. See Paul v. Laba (1937) All E.R. 737. Furthermore, the document was far from a farming grant. In consequence of the above objections,the document was inadmissible in evidence as proof of title. The position is not altered by the fact that it was attached to Exh.2 for it was ab initio inadmissible in evidence.
As regards Exh. 2 itself, certain valid objections can still be raised. This document was pleaded in paragraph 5 of the amended statement of claim. Both paragraphs 5 and 6 of the amended statement of defence traversed the said paragraph 5 of the amended statement of claim and averred that the document was a forgery.
The plaintiff was put to the strictest proof of the said document The evidence or the execution of the document by the alleged Ngwu Ugwu Mba was, to say the last, unsatisfactory. PW2 admitted that Ngwu Ugwu Mba was an illiterate and could neither read nor write. This was further confirmed by Exh. 6 tendered by the plaintiff in evidence. Exh. 2 showed that Ngwu Ugwu Mba signed the document. Pressed under cross-examination to explain how the alleged illiterate signed the document, the PW2 was quite forthcoming in stating that he did not know who inserted or signed the said name and that someone he could not remember may have done it for them. This is a clear admission that Ngwu Ugwu Mba did not execute Exh.2. There is what appears to have been an ink smudge where Ngwu Ugwu Mba was supposed to have thumb printed Exh.2 An argument arose as to whether it was a thumbprint or not. I had therefore, to call for the original document from the land Registry. It was examined in the open court by the court and both counsel for the parties. I was satisfied that there was no thumbprint at the spot or anywhere in the said document. What appeared in the certified photocopy (Exh. 2) as an ink smudge or thumb impression was a smudge made by the gum or adhesive used in affixing the legal seal Furthermore, the circumstances of the execution of Exh.2 as related by PW2 lend support to doubts as to the genuineness of the said document. The two sons of the lessor were present yet none even signed as a witness. The same party witnessed for the grantor and the grantee. There was, a jurat to the agreement which was cancelled, yet it was admitted that Ngwu Ugwu Mba was an illiterate.
and concluded.
“The said document besides other irregularities, could not have conveyed or ratified any previous agreement as it purported to do. It cannot bind Ngwu Mba since he did not execute same even if he was the owner of the land in dispute. If Nnamani Ugwu Mba was the head or the family and was alive until the civil war, why did he not convey the land to the PW2 As a matter of fact, this renders the conveyance void ab initio. It is my view that the Exh.2 did not convey the land therein stated by the PW2. It did not also convey any interest in the land to the PW2. Assuming that there was a previous grant by customary law which the 1951 agreement was evidencing, the said customary law together with its incident should have been specifically pleaded and evidence led to establish same. These have not been done in the present case.
Since Exh A is based on Exh.2, and derives its sustenance from it, this necessarily implies that Exh. 4 conveyed no title to the land in dispute to the plaintiff. This court cannot therefore, grant the plaintiff the declaration sought for in the first arm of his claim”.
The Court of Appeal, on the other hand in the lead judgment of Uwaifo, J,C.A (as he then was) commenting on the learned trial Judge’s observation remarked:
“As regards the plaintiffs case, the learned Judge was of the view that the conveyance (Exh, 2) which the plaintiffs vendor, Dickson Okorie Chukwuemeka Nwankwo, who testified as PW2, relied on was not executed by Ngwu Ugwu Mba stated therein as the owner. This is because Ngwu Ugwu Mba was said to be an illiterate but his name was written on the conveyance and it was not clear who did. The learned judge then, at the close of final addresses of counsel, called for the Land Registry copy of the conveyance and said he found that it was not thumb-impressed. He came to the conclusion that the conveyance was void. I have my strong reservation if the learned judge was right on that point No issue was specifically joined by the parties that Ngwu Ugwu Mba did not sign or thumb-impress the conveyance. What the defendant pleaded in regard to the conveyance was:
(I) That Ugwu Mba belonged to Umunnamalum family of which one Lawrence Mba was the head. As has been shown already the learned judge found that such family never existed.
(2) That Ngwu Mba, was incapable of conveying family land, This of course would also be destroyed by the finding of the learned judge as the family referred to is the non-existent Umunnamalum family,
(3) That Ngwu Mba did not know what he was doing being an illiterate. I cannot see the sense in this.
An illiterate is not necessarily foolish nor is he to be regarded as insane. In any event, since the defendant is not a member of Ngwu Ugwu Mba family nor did he derive title from that same family, he cannot be heard to challenge the act of Ngwu Ugwu Mba in relation to the Conveyance. He cannot rely on the alleged fact that the conveyance was not signed or executed by Ngwu Ugwu Mba and argue that it is void. He is a stranger to the deed. This is implicit in the principle that a stranger to a deed cannot seek to have it set aside of avoided: See Foko v. Foko(1968) NMLR 441; Eric Ordor R. v. Nwosu (1974)1 All NLR (Pt,2) 478. A fortiori, a court cannot undertake to do it for such a stranger”.
UWAIFO, J.C.A. then referred to paragraphs 4, 5 and 6 of the amended Statement of Claim and paragraph 4 of the Amended Statement of Defence and remarked:
“Therefore, the basis upon which the defendant could challenge the capacity in which Ugwu Mba, Nnamani Ugwu Mba and Ngwu Ugwu Mba acted (in their own family) at any stage in relation to the land in dispute no longer existed”,
The learned Justice went on to consider other pleas raised by the defendant and the evidence on the issue of title and concluded as follows:
“With this evidence, and having regard to the true trend of the case whereby the learned Judge himself found that the so-called vendors of the defendant never existed, that plaintiff must be seen to have established a prima facie case as regards:
(1) The family from whom he brought the land. (2) The prominent role played by Ngwu Ugwu Mba, (3) The connection of Ngwu Ugwu Mba with the said family. (4) The root of title of the said family not having been disputed even by the defendant who merely tired to assert that those who took part in the transaction were not duly authorised. In land matters, as in other civil matters, proof is on the balance of probabilities: See Kaiyaoja v. Egunla (1974)12 S.C. 55 at 61. It is the law that once plaintiff in a civil matters shows a prima facie case, the balance of probabilities will be in his favour unless the defendant’s case tilts that balance. This is implicit in the case of Aromire v. Awoyemi (1972)2 S.C 1 at 10-11 and section 135, 136 and 138 of the Evidence Act as to burden of proof in civil cases”.
The learned Justice then considered the effect of the documents of title relied upon by the plaintiff and finally came to the conclusion that title ought to be declared in the plaintiff. The other justices of the Court below who sat on the appeal agreed with the observations and conclusion or Uwaifo J.C.A.
While I do not necessarily disagree with most of the observations made by Uwaifo J.C.A. in his lead judgment it is with his conclusion that plaintiff proved his title to the land in dispute that I, with respect find myself unable to go along with him. It is pleaded in paragraph (4) of the amended statement acclaim that the land in dispute originally belonged to one Ugwu Mba ….” but Mba’s root or title was never pleaded. Could it now be said that in the circumstance, plaintiff had discharged the onus on him’ I think the law is settled on this point. A long line of cases beginning with Kodilinye v. Mbanefo Odu (1935)2 WACA. 336 has laid it down that in a claim for declaration of title the onus is on the plaintiff to prove his case. He must rely on the strength of his own case and not on the weakness of the defence. Jules v. Ajani (1980) 5/7 S.C 96 – except of course where the weakness of the defendant’s case tends to strengthen plaintiffs case – Nwagbogu v. Ibeziako (1972) vol. 2 (Pt.1) ECSLR 335, 338 SC or where the defendant’s case supports his case – Akinola v. Oluwo (1962) 1 SCNLR 352 (1962) 1 All NLR 224; (1962) (Pt.1) ANLR 225/ all of which is not the case here.
What is this onus on the plaintiff in this case The plaintiff here must prove not only that Ugwu Mba who was claimed to be the original owner transferred title to Nwankwo who, in turn, transferred the same to him but must also establish how Ugwu Mba came about the ownership of the land moreso, when the defendant did not concede original ownership of the land to Ugwu Mba. See Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393. The root of title of Ugwu Mba was not pleaded in this case nor was any evidence led on it. I think this is fatal to plaintiff’s claim to title and his claim to title ought to have been dismissed. See Eboha v. Anakwenze (1967) FNLR 279.
The grant of declaration is at the discretion for a Court. The Court below must not only satisfy itself of plaintiff’s root of title from Ugwu Mba but must also satisfy itself us to the proof or Ugwu Mba’s title, that is Mba’s original ownership must be established. That not having been done in this case, his claim to title was rightly dismissed by the learned trial judge though for different reason.
(2). Trespass and Injunction: There are concurring findings or fact of the two courts below to the effect that plaintiff was in prior possession of the land in dispute and that the defendant came thereon to disturb that possessory right. There is overwhelming evidence on the record to support those findings. Although plaintiff failed in his claim for title, that failure does not necessary mean that his claim in trespass must fail because trespass is a violation of possessory right and does not involve title to land.- Aromire v. Awoyemi (1972) 2 SC 1: Omoni v. Biriyal (1976) 6 SC. 49. Plaintiff’s possession in this case is good title against the whole world except the true owner of the land. See Akano v. Okunade (1978) 3 SC. 129. The defendant admitted going on the land and building thereon. I think that two courts below were right in finding against him in trespass and injunction. The defendant in this appeal has not satisfied me that the verdict is perverse. I too affirm it.
In conclusion I allow this appeal as regards the claim for title. I set aside the judgment of the court below granting to the plaintiff title to the land in dispute. I dismiss the appeal as regards the claim in trespass and injunction. I affirm the judgment of the Court below on this. The defendant is entitled to half the costs of this appeal which I assess at N5,000.00.
SC.153/1992
