Ugwu Oko & Anor. V. Jeremiah Okenwa (2009)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the judgment of R.C. Agbo J. of the High Court of Enugu State delivered on the 15th March 2004 in Suit No. E/415/82. In the said court below the present Appellants as Plaintiffs had by paragraph 12 of their further amended Statement of Claim dated the 25th February 2000 and filed on the 6th March 2000 and which is contained at pages 20 – 22 of the Record of Appeal claimed as follows-

(a) Declaration that the Plaintiffs are entitled to the statutory Certificate of Occupancy in respect of that piece of land situate and lying at Isiagu Amechi Awkunanaw Enugu South Local Government Area

(b) N500.00 damages for trespass

(c) A perpetual injunction to restrain the Defendant, his servants, agents or privies from entering the said piece or parcel of land otherwise known as the land in dispute

(d) A declaration that the statutory occupancy dated 1/3/81 granted by the Government of Anambra State of Nigeria to the Defendant Jeremiah Okenwa in respect of the land in dispute is null, void and of no effect whatsoever.

A summary of this case at the lower court which has now come up here on appeal is that the Appellants, then Plaintiffs claimed to have owned the land in dispute from time immemorial. Later structures were seen being developed on the land. The Respondent who gave evidence as D.W. 1 by name Jeremiah Okenwa who owns a plot of land on the land in dispute and lives on the said land in dispute claimed to have bought same from Okonkwo Ogbu who is late. He obtained a receipt – exhibit “D” for the said purchase. Subsequently he applied for and obtained a Certificate of Occupancy from the Governor with respect to the purchased land which was tendered in court as exhibit “E”. The said late vendor Okonkwo Ogbu had also sold adjoining plots of land to other persons namely Obichukwu Nwodo, Uwankwo Ani, Obodo and Vincent Ndu who had all developed their respective properties. 2nd Plaintiff had approached him (Respondent) to lay claim to the land contending that the land belonged to the Plaintiffs who had inherited same from their forefathers. The said Plaintiffs were members of Umuoko family. The matter went on to be heard and after the defence had closed its case and in the course of his address, Plaintiffs’ counsel sought to amend his pleadings to accord with evidence given that the land in dispute is owned by the family. In the ruling reserved for judgment, the trial court rejected the said amendment sought and found for the Respondent.

Dissatisfied the Plaintiffs have appealed to this court.

The Notice of Appeal is dated the 4th June 2004 and filed on the 7th June 2004. Contained at pages 92 – 98 of the Record of Appeal, it consists of four Grounds of Appeal –

GROUND 1-

The judgment is against the weight of evidence.

GROUND 2-

Error in Law:

The Learned trial Judge erred in law when he gave judgment for the Respondent on whom lay the burden of proving that the Appellants are not the owners of the land in dispute when that burden had not been discharged by him.

GROUND 3-

Error in Law:

The Learned trial Judge erred in law when he decided that the Appellants must prove facts which had been expressly admitted.

GROUND 4-

Error in Law:

The Learned Trial Judge erred in law when he dismissed the Appellants’ case merely because, according to him, “the state of the pleadings suggests that the property vests in the plaintiffs in their individual capacities.”

The Appellants therefore urged the court to set aside the judgment of the High Court Enugu and enter judgment for the Appellants in terms of their claim. They through their Counsel A.O. Moghoh SAN filed a Brief of Argument dated the 19th November 2007 and filed on the 17th December 2007 but deemed properly filed and served on the 10th April 2008 following the grant by this Court of a Motion on Notice brought pursuant to Order 7 Rule 1 and Rule 10(1) of the Court of Appeal Rules 2007 and the inherent jurisdiction of the court praying this Court for extension of time to file Appellants’ Brief of Argument and to deem the Appellants’ Brief of Argument which was attached to this application as properly filed and served necessary fees having been paid. Formulated from the Grounds of Appeal contained in the Notice of Appeal and spelt out at page 2 of the Appellants’ Brief of Argument are the following three issues for the determination of the Court of Appeal viz-

1. Whether the trial Judge was right in refusing the Plaintiffs’ application to sue on behalf of their family.

2. Whether considering the other issues of sale and grant of the Certificate of Occupancy to the 1st Defendant was a mere academic exercise

3. Whether it was right for a Judge of the High Court to have struck out the name of the 3rd Defendant after it had been properly joined as a party by order of another High Court Judge.

These issues are argued extensively in the Appellants’ said Brief of Argument. The Respondent also filed of Brief of Argument dated the 8th May 2008 and filed on the 9th May 2008 in which at page 2 therefore the following issues were distilled from the Notice and Grounds of Appeal for determination by the Court viz:

(1) Whether the trial Judge was right in refusing the Plaintiffs application for amendment when same will over reach the Defendant

(2) Whether a vendor who sold his land to a purchaser can subsequently claim a declaration of title to the same land in an action involving a third party.

(3) Whether considering the other issue of sale and grant of the Certificate of Occupancy to the Defendant was a mere academic exercise.

On the 4th March 2009 this appeal came up for hearing with Counsel adopting and relying on their respective Briefs of Argument.

The issues as formulated by the parties though differently worded appear to be substantially the same. Minor modifications have however been made which do not affect the substance of the issues as canvassed by the parties. The issues are now as follows –

1. Whether the trial Judge was right in refusing the Plaintiffs’ application to sue on behalf of their family.

2. Whether considering the other issue of sale and grant of the Certificate of Occupancy to the 1st Defendant was a mere academic exercise.

3. Whether a vendor who sold his land to a purchaser can subsequently claim a declaration of title to the same land in an action involving a third party.

In essence what I have done is to take issues 1 and 2 of the Appellants and issue 2 of the Respondents as the proper issues for consideration in the determination of this appeal.

I shall now proceed to deal with them in that order.

ISSUE 1 – Whether the trial Judge was right in refusing the Plaintiffs’ application to sue on behalf of their family.

Appellants have made reference to what the learned trial Judge said at pages 89 and 90 of the Record of Appeal. They were reproduced in the Appellants’ brief of argument and I shall do the same here.

Page 89 – “This amendment was sought to accord with the evidence led by the Plaintiffs and the fact that the Plaintiffs brought the Suit on the basis that the property in dispute was family property. If the Court is satisfied that the Suit was brought by the Plaintiffs on the ground that the property in dispute was family property and evidence was led in that regard, it would constitute proper ground to amend to reflect that. But from the evidence before the court, the court cannot agree with the Counsel for the Plaintiffs that Plaintiffs contested the Suit on the basis that the property was family property.”

Page 90 – “As a matter of fact even if the amendment is allowed, the fact of family ownership of land in dispute by the Umuoko family can still not be said to have been pleaded by the Plaintiff.”

Appellants submitted that the trial Judge was wrong in these findings and in this regard referred to the evidence of some of the Plaintiffs witnesses viz

Evidence of PW 2 at pages 31, 32, 33 and 36 and the cross examination of the same witness at pages 36 and 37 of the records of appeal; evidence of PW 3 at page 39 of the records of appeal and even the evidence of DW 4 under cross examination and the evidence of DW 5 at pages 58 and 60 of the record of appeal. The Appellants further submitted that the Plaintiffs had not claimed ownership of the land to the exclusion of other members of the Oko family and the court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that had been obtained for the purpose of settling the real controversy between the parties. Reliance was placed on the following cases-

ABABIO V. QUARTCY AND ANOTHER P.C. APPEALS NO. 94 OF 1914 cited in ENGLAND V. PALMER (1955) 14 WACA 659; JOSEPH AFOLABI V. JOHN ADEKUNLE 1983 8 S C 98 at 120.

Appellants further contended that facts in an affidavit not controverted are deemed admitted. Reliance was placed on the following cases –

NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (PT 969) at 69; OGUEJIOFOR V. OGUEJIOFOR (2002) 12 NWLR (PT 780) 171; NNB PLC. V. DENCLONG (2001) 1 NWLR (PART 695) 542; IMAM V. SHERRIF (2005) 4 NWLR (PART 914) at page 80. Appellants also submitted that the amendment whether granted or not was not the end of the matter as the next stage would have been to determine whether the land was sold to Okonkwo Ogbu by the 1st Plaintiff. Reference was made to the Plaintiffs’ Counsel’s address at page 73 of the record of appeal. It was further submitted for the Appellants that the Court ought to have considered the effect of the 1st Plaintiff’s sale of the land in dispute to Okonkwo Ogbu and whether Okonkwo Ogbu could validly pass on title to the 2nd Defendant and others.

The Respondent for his part submitted that were the amendment sought by the Appellants granted, the Respondent would have been over reached. He relied on KOBE V. YUSSUF (2001) FWLR (PT 40) 1727 at 1729. He relied also on the evidence of Emeka Oko under cross examination at page 36 lines 7, 8 and 9. He went on to say that exhibit “B” which is the plan tendered by the Plaintiffs has written on it “landed property of Nsude Oko and Ogbodo Oko”, the said exhibit B having been made in 1962 when there was no contemplation of this suit. Respondent further submitted that at no time in the evidence of PW 2 and PW 3 was it stated that this suit was initiated by the Plaintiffs on behalf of the Umuoko family.

He submitted that if the land were family land other members of the Umuoko family apart from the Plaintiffs ought to have shown interest in the said land in dispute or at least be in the Plaintiffs pleadings. Respondent went on to say that there was no evidence of traditional history in the Plaintiffs’ pleadings showing that the land was family property. The evidence of PW 2 and DW 4 at pages 36, 37 and 58 under cross examination, according to the Respondent did not go to support pleaded facts and were rightly expunged by the court while writing its judgment.

Reliance was placed on SALAUDEEN V. MAMMAN (2000) FWLR (PT. 17) 1, 5. Respondent contended that where a party failed to prove the root of title pleaded he cannot rely on another form of acquisition. Reliance was placed on ADISA V. OYINWOLA (2000) 10 NWLR (PT 674) 116, 153.

Respondent submitted that the Plaintiffs’ contention that the land in dispute was family land is an afterthought and if the amendment had been granted, it would have caused injustice to the Respondent and its refusal by the court was proper.

The learned trial Judge had stated in his judgment at page 89 of the Record of Appeal as follows: –

“This amendment was sought to accord with the evidence led by the Plaintiffs and the fact that the

Plaintiffs brought the suit on the basis that the property in dispute was family property. If the court is satisfied that the suit was brought by the Plaintiff on the ground that the property in dispute was family property and evidence was led in that regard, it would constitute proper ground to amend to reflect that.

But from the evidence before the court, the court cannot agree with counsel for the Plaintiffs that

Plaintiffs contested the Suit on the basis that the property was family property.”

With this assertion the court rejected the Appellants’ application for amendment. Could the trial Judge have been right? Of the land in dispute PW 2 Mr. Emeka Arum Oko had stated at page 36 of the Record of Appeal under cross examination by Chief Onwu –

“The land in dispute is not owned by the whole of Umuode – The land in dispute is owned by Nsude Oko, Ugwu Oko and myself. The land in dispute was surveyed in 1962 and is part of exhibit B. The totality of the land in exhibit is the current land in dispute ….. ” .

PW 4 is one Chukwujindu Palumechi Cyprian Nwosu who lives at No. 1 Ike Onuora Street Nnewi, Anambra State. A licenced and registered Surveyor he said he was engaged by the Plaintiffs in 1982 to survey the parcel of land in dispute for them which he did and produced a survey plan.

He later tendered a plan which was admitted in evidence as exhibit C.

Under cross examination by Chief Onwu, PW 4 said as follows –

“I see Exhibit B. When exhibit “B” is superimposition (sic) on exhibit “C” they will be the same. Exhibit “B” has written on it property of Nsude Oko and Ogbodo Oko. The names of boundary men on exhibit C were given to me by the Plaintiffs…. ”

The evidence of PW 2 would thus appear to be in tandem with that of PW 4 on the individual ownership of the land in dispute as opposed to family ownership of the land in dispute. Can it be said that Nsude Oko and Ogbodo Oko are the only persons that make up Oko family and qualify to own family property? That I think would be ludicrous. The pleadings of the Appellants did not trace the land in dispute to their forefathers as is the usual requirement under traditional history. If the land in dispute was in deed family land, other members of the Umuoko family apart from the Appellants should have shown interest. Most certainly the pleadings of the Appellants as Plaintiffs should have indicated or accommodated this interest by other members of the family. Respondent’s Counsel, Chief A.C. Onwu while addressing court on the 14th February 2003 had inter alia stated as follows at page 63 of the Record of Appeal; “The kernel of the Plaintiffs’ claim is that the Plaintiffs are the owners of the piece of land shown in plan No. E/GA/330/62 deposited with the Surveyor General which said plan as admitted in evidence as exhibit B. The names of the owners are clearly stated on exhibit B to wit Nsude Oko and Ogbodo Oko. It is not stated therein that the land is a family property. If the Plaintiffs are claiming ownership by inheritance, the Plaintiffs must plead and prove names and history of the ancestors from whom they derived the present title, or plead and prove grant, settlement or conquest.”

I cannot agree more. In MOSES OKOYE DIKE & 2 ORS V. FRANCIS OKOLOEDO & 2 ORS. (1999) 7 SCNJ 248 at 257 the Supreme Court held that one of the five ways of establishing a claim for declaration of title to land is by traditional evidence. See also IDUNDUN v. OKUMAGBA (1976) 9 – 10 S C 227. More importantly in OKOLEDO’s case (supra) the Supreme Court held that it is not sufficient for the Appellants to say that the land in dispute belonged exclusively to the Uzuezikokwe family from time immemorial and stop there. They must show how that family got it either from some other persons or authority in succession or that they found it a virgin land and deforested it. The plain truth is that no facts of traditional history were pleaded. In the present case now on appeal it is clear that it was when the Plaintiffs now Appellants realized that their pleadings was silent on the land being Umuoko family land that they sought to amend it to include that fact and that their suit was brought in a representative capacity. See also OKORIE ECHI & ORS V. JOSEPH NNAMANI & ORS. (2000) 5 SCNJ 155. The learned trial Judge was therefore in my view right to refuse the amendment sought by the Appellants. Issue 1 is therefore resolved in favour of the Respondents against the Appellants.

Issue 2 reads as follows –

Whether considering the other issue of sale and grant of the Certificate of Occupancy to the 1st defendant was a mere academic exercise.

Appellant has submitted under this issue that for the Certificate of Occupancy issued to the Respondent to be valid, there must not be in existence at the time the Certificate is issued an owner who has not been divested of his title and that the learned trial Judge was wrong to have considered a discussion of the pleading and evidence merely academic and had he not done so he would have gone on to find that the issuance of a Certificate of Occupancy to the Respondent was wrong and invalid, not having complied with the provisions of the Land Use Act. Appellants submitted that the right of an existing holder or occupier of land is not automatically extinguished by the mere issuance of a Certificate of Occupancy to another person and that the conditions for revoking the rights of occupancy are contained in section 36(5) & (6) of the Land Use Act which provide as follows –

(5) “The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized on that behalf by a Commissioner and notice thereof shall be given to the holder and to any mortagee”

(6) “The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Sub section 5 or on such later date as may be stated in the notice.”

Appellants went further to submit that the entire evidence of the Respondents did not show that such notice was ever served on the 1st Appellant or on members of his family. It was contended therefore that the issuance of the Certificate of Occupancy – exhibit E to the Respondent by the Governor was in error and that the Certificate of Occupancy was void ab initio. Reliance was placed on MACFOY V. UAC (1961) 3 AER 1619 at 1172 (sic). According to the Appellants, since exhibit E, the Certificate of Occupancy is void and of no effect, the Appellant or his family who are deemed by section 34 (2) of the Land Use Act to be in possession of the statutory Certificate of Occupancy is the statutory owner of the land in dispute. Appellants submitted that section 28 of the Land Use Act states categorically that a notice must be served personally on any person whose property is to be acquired and there was no evidence that this was done in the instant case. Appellants relied on OTO V. ADOJO (2003) 7 NWLR (PT. 820) at 636 to contend that a publication in a gazette is not enough notice to the person before he can be divested of his vested right. Appellants contended that the provisions of the Land Use Act apply to individual as well as family land. Appellants went on to submit that although the Governor has a right to revoke the Appellant’s right of Occupancy under section 28 of the Act or revoke the right of occupancy of previous owners if any he did not do so before purporting to grant to the defendant a Certificate of Occupancy in exhibit E over the same land which the Appellants have a right of occupancy. Reliance was placed on OGUNLEYE V. ONI (1990) 2 NWLR (PT 135) 772.

This issue was formulated as issue 3 on page 2 of the Respondent’s Brief of Argument but appears to have been argued under a different issue in the Respondent’s brief. I cannot however shut my eyes to the fact that the issue has indeed been argued by the Respondent at paragraphs 5.05 and 5.06 on pages 14 and 15 of the said Respondents Brief. Therein the Respondent submitted that the Appellants have not been holders of statutory right of Occupancy within the meaning of the Land Use Act and that it would be absurd to consider the issue of Notices and revocation of the Certificate of Occupancy. Respondent further submitted that the Appellants having not established their case on the basis of family property after futile attempt to claim individually, it will be merely academic for the court to consider other defences open to the Appellant. Respondent went further to submit that the Land Use Act is not intended to confer right that does not exist to someone who has no interest recognized by law but to the holder of a legal right.

Reference was made to ABIOYE V. YAKUBU (2001) FWLR (PT. 83) 2212. DANTOSHO V. MOHAMMED (2003) FWLR (PT 150) 1717.

The Respondent contended that no statute shall be construed to affect vested rights unless the language of the statute and the subject matter clearly point towards that effect. Reliance was placed on SAVANNAH BANK (NIG.) LTD. V. AJILO (2001) FWLR (PR. 75) 513 at 528. It is the Respondent’s contention that where a Plaintiff fails to successfully prove his case, he is not entitled to judgment. The case of IHEANACHO V. CHIGERE (2004) 17 NWLR (PT. 901) 130 at 137 was relied upon. Respondent argued that the issue of sale and grant of the Certificate of Occupancy by the Respondent became a mere academic exercise where as in this case the Appellants have failed to prove their claim or the root of title relied upon by them. In such a case as this the Appellants cannot even in law be allowed to rely on other form of defence as the Appellants have tried to do. That form of acquisition relied upon must be proved to the satisfaction of the court. Reliance was placed on ADISA V. OYINWOLA (2000) 10 NWLR (PART 674) 116 AT 153.

The learned trial Judge found that the Appellants had failed to establish title to the land in dispute on the basis of family ownership of the said land and this finding was crucial to the determination of the case. If the criterion relied upon by the Appellants to establish title failed, could they possibly rely in law on other criteria to establish such title to the land in dispute? In ALHAJI KARIMU ADISA V. EMMANUEL AYINWOLA & 4 ORS. (2000) 10 NWLR PART 674 page 116 at page 153 a full court of the Supreme Court held that where a Plaintiff relies on acquisition of title by grant and fails to prove it, the court cannot make a case for him on a different form of acquisition. Thus where in a claim for declaration of title to land title is claimed by grant, the court has to be sure of the nature of the grant before a declaration is granted. In other words where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where proof of the grant is inconclusive, the bottom is knocked out of the Plaintiff’s claim. This is because where the radical title pleaded is not proved, it is not permissible to support or substitute a non existent or failed root with acts of possession which should have derived from that root. See also ODOFIN V. AYOOLA (1984) 11 S C 72.

The Appellants have tried and failed to establish root of title to the land in dispute to the family, the trial court in my view was right to treat the issue of sale and grant of Certificate of Occupancy to the Respondent as mere academic exercise. This issue is therefore resolved in favour of the Respondent.

The third issue is whether a vendor who sold his land to a purchaser can subsequently claim a declaration of title to the same piece of land in an action involving a third party.

The obvious answer to that issue is No. See IGE V. FARINDE (1994) 7 NWLR (PART 354) 42 at 52 where the Supreme Court was categorical that having sold his land to a purchaser a Plaintiff cannot turn around to claim a declaration of title to the very land he has sold. In the present case the Respondent’s contention is that he bought the land in dispute from Okonkwo Ogbu who bought from the 1st Plaintiff Ugwu Oko.

Respondent brought to testify on his behalf, neighbours who had bought from the same Okonkwo Ogbu. Pages 51, 53 and 54 of the Record of Appeal contain the evidence of the Respondent and his witnesses. The statements of the witnesses were to my mind never contradicted under cross examination. See SANYAOLU V. COKER (1983) 3 S C 124, 163 -164.

This issue is also resolved in favour of the Respondent. The appeal fails and is accordingly dismissed and the judgment of Agbo J. of the High Court of Enugu State in Suit No. E/415/82 delivered on the 15th March 2004 is hereby affirmed.

There shall be N30,000 costs in favour of the Respondent against the Appellants.

---

Other Citations: (2009)LCN/3286(CA)