REV. JOHN UGAH V. SYLVANUS UGWU AGBO
(2013)LCN/6295(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of June, 2013
CA/E/68/2011
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
REV. JOHN UGAH – Appellant(s)
AND
SYLVANUS UGWU AGBO – Respondent(s)
RATIO
WHETHER ROR NOT WHOEVER INTENDS TO BUY LAND MUST CONDUCT A SEARCH BEFORE MAKING A PAYMENT
The position of the law is that whoever intends to buy land must make due consultations otherwise known as search before parting with his money. PER ABDUL-KADIR, J.C.A.
WHETHER OR NOT WHERE A DEFENDANT ADMITS THE FACT OF ENCROACHMENT, THEN HE IS TO SHOW JUSTIFICATION THAT WHAT HE DID IS AUTHORIZED BY SOME POSITIVE LAW
The plaintiff in such an action is complaining against a wrong against possession. If the defendant admits the fact of encroachment, then he is to show justification that what he did is authorized by some positive law, otherwise he is liable see Arhurhu V. Delta Steel Co. Ltd (1997) 3 NWLR Page 82 at page 85, Ratio 3.” PER ABDUL-KADIR, J.C.A.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): The Respondent by a Writ of Summons dated 11th March, 1998 commenced an action against the Appellant in Suit No. E/90/98 at the High Court of Justice, Enugu Judicial Division. The claims of the Plaintiff/Respondent against the Defendant/Appellant are as follows:
1. A declaration that the piece or parcel of land situate at New Era Layout, Enugu otherwise known as plot 272 New Era Layout, Enugu belongs to the Plaintiff.
2. N132, 000.00 (One Hundred and Thirty Two Thousand Naira) only damages for the fence wall maliciously damaged by the Defendant when he trespassed into the Plaintiff’s land.
3. Perpetual injunction restraining the defendant by himself, his agents, servants and privies from further acts of trespass on the said land.
The Plaintiff/Respondent supported his claim with a 20 paragraph Statement of Claim dated 20th November, 1998 and a Survey Plan No. ECUD/EN/02/98. See pages 3-6 of the record of appeal. The Defendant/Appellant filed a 27 paragraph Statement of Defence dated 14/12/1998 and a Survey plan No. SS/EN/0100/98. See pages 7 – 10 of the record of appeal. The trial commenced at the lower court on 28th July, 1999 before Hon. Justice B. Agbata (herein referred to as the trial Judge). The trial lingered up to the 8th day of May, 2003 when the Plaintiff/Respondent replied to the final address of counsel for the Defendant/Appellant. See pages 11 – 66 of the record of appeal.
On the 3rd day of December, 2003, the lower court delivered judgment in the case, wherein a decision was reached in favour of the Plaintiff/Respondent against the Defendant/Appellant. See pages 67 – 73 of the record of appeal. Being dissatisfied with the judgment of the lower court per Agbata J, the Defendant/Appellant filed a Notice of Appeal dated 8th December, 2003, containing nine (9) Grounds of Appeal. See pages 74 – 77 of the record of appeal.
In line with the rules of this Honourable Court, the parties filed, exchanged and adopted their briefs in support of their respective contentions on the appeal. The appeal was taken on 19th March, 2013.
The Appellant’s Brief of Argument dated 31st March, 2011 and filed on 6th April, 2011 was settled by Chief Emeka Onyemelukwe (KGS) (JP) for the Defendant/Appellant. The Respondent’s Brief of Argument dated 20th June, 2011 and filed on the same date was settled by O. AKPAMGBO ESQ for the Respondent.
In his Brief of Argument, the learned counsel for the Appellant formulated five (5) issues for determination of this appeal. The Appellant’s issues are herein reproduced for ease of reference:
“1. Whether or not the learned trial judge was right or wrong to have granted the plaintiff title to Plot 272, New Era Layout, Enugu, in view of Sec. 39 (1) (a) and Sec. 40 of the Land Use Act 1987?
2. Whether or not the learned trial judge was right to grant title to the Plaintiff in view of the evidence before him?
3. Whether or not the learned trial judge was right or wrong to have granted title to the Plaintiff/Respondent in respect to Plot 272, New Era Layout, Enugu, purchased from a vendor with defective title?
4. Whether or not the legal maxim “where the equities are equal, the 1st in time prevails”, was considered by the learned trial judge?
5. Whether or not the trial Judge was right in awarding of N132, 000.00 (One Hundred and Thirty Two Thousand Naira) without strict proof as required by law?
The Learned Counsel for the Respondent also formulated five (5) issues for determination of this appeal. The issues herein reproduced read thus:
1. Whether on the preponderance of evidence, the learned trial judge was right in granting title to the land in dispute, i.e. Plot 272 New Era Layout, Enugu to the Plaintiff?
2. Whether the people who conveyed the land in dispute to defendant had the authority of the community to so do?
3. Whether the equities in the instant case are equal?
4. Whether the learned trial judge was right in awarding special damages of N132, 000 (One Hundred and Thirty-Two Thousand Naira) to the plaintiff for the fence walls that were damaged and which damage was admitted by the defendant?
5. Whether in the instant case, there is justification for the grant of perpetual injunction against the defendant on the land in dispute?
APPELLANT’S ARGUMENT
On the Appellant’s issue No. 1, the learned counsel representing him stated that the Land Use Act swept away unlimited interest in the land and substituted them with limited right. He further stated that vested right have been abrogated by the Land Use Act, vesting TITLE, management and control of the land to the Governor and curtailed the interest of the holder by prescribing consent to alienation in all cases. He cited Sections 34 and 36 of Land Use Act. He argued that if the Governor of the State is the trustee of land, then the learned trial judge has erred in law in granting title to Plot 272, New Era Layout, Enugu to the plaintiff. The learned counsel cited the case of Arhurhii V. Delta Steel Co. Ltd (1997) 3 NWLR (Pt. 491) 82 at 84 – 85.
On the Appellant’s Issue No. 2, the learned counsel for the Appellant contended that introduction of deed of conveyance or document of title does not automatically entitle a party to a claim in declaration. He added that before the production of document is admitted as sufficient proof of ownership, the court must satisfy itself that:
(a) The document is genuine and valid
(b) It has been duly executed, stamped and registered.
(c) The grantor has the authority and capacity to make the grant,
(d) That the grantor has in fact what he purposes to grant.
(e) That the grant has the effect claimed by the holder of the instrument.
He cited the cases of Ayorinde V. Kufariji (2007) 4 NWLR (Pt. 1024) 34, Dosumu v. Dada (2002) 13 NWLR (Pt. 783) 1, Kyari V. Alaya (2001) NWLR (Pt. 60) 748 in aid.
The learned counsel contended that the respondent tendered an unstamped and unregistered document. He argued that going by the provisions of Sec. 15 of the Land Instrument Registration, an unregistered document affecting land must not be pleaded and neither is it admissible in evidence. He added that if such document is pleaded, a trial judge upon an application made to it must strike out paragraphs of the pleading. He further argued that where unregistered document was mistakenly admitted in evidence, part of the evidence relating to that unregistered document should be expunged for reason of lacking evidential value. He cited the cases of Akinduro V. Alaya (2007) FWLR (Pt. 381) 1653 at 1666 – 1667 and Adesanya V. Aderounmu (2000) 6 SC (Pt. 11) 18 in aid.
On the Appellant’s Issue No. 3, the learned counsel emphasized that the Vendor who purportedly sold the land to the plaintiff/respondent had a defective title. He argued that the Vendor bought the said land when the land was in dispute and pending in the Supreme Court. He pointed out that the Vendor failed to validate his purchase in compliance with the advert of the successful litigant in Daily Star Newspaper of 12/11/1986 following his victory in the Supreme Court over the disputed land. He made reference to Exhibit K. He cited the cases of Olusunde V. Oladele (1991) 4 NWLR (Pt. 188) P. 713, Marculay and anor. V. Omujale (1997) 14 NWLR (Pt. 479) 32, Okoye V. Dumez (Nig) Ltd (1985) 1 NWLR (Pt. 205) 626 and Egbuta V. Onuma (2007) 10 NWLR (Pt. 1042) 298.
On the Appellant’s issue No. 4, the learned counsel contended that the plaintiff respondent alleged that he purchased Plot 272 New Era Layout, Enugu from one Gateway Properties Ltd in 1996 much later than the defendant/appellant who purchased from the land owners in 1989. He emphasized that the Respondent has not shown in evidence that he purchased from the natives who won the litigation in the Supreme Court. He further emphasized that neither the plaintiff/respondent nor the defendant/appellant registered their document. He stated that in consideration of their purchase receipts, the defendant/appellant has a better title being 1st in time.
On Appellant’s Issue No. 5, the learned counsel for the appellant, contended that the plaintiff/respondent itemized his expenses in his claim for damages without tendering a receipt for any of the items specially claimed. He argued that special damages must strictly be proved. He cited the cases of Joseph and Anor V. Alhaji Abubakar and Anor (2002) FWLR (Pt. 91) 1525 at 1542 and Triana Ltd. V. Polymakers Ltd (2002) FWLR (Pt. 93) 2004 at 2013. He argued that the plaintiff/respondent failed to prove the special damages as he claimed and therefore he is not entitled to judgment in that score.
In conclusion the learned counsel for the Appellant urges the court to allow the appeal and dismiss the plaintiff/respondent’s case.
ARGUMENT OF THE RESPONDENT
On the Respondent’s formulated issue No. 1, the learned counsel for the respondent submitted that on the preponderance of evidence, the plaintiff/respondent proved his case to justify the order made by the court granting title to him. He emphasized that the contending issue in the matter is title which could be statutory or customary. He refers to Section 39 (1) (a) of Land Use Act on Statutory Right of Occupancy granted by the Governor or is deemed to be granted by the Governor under the Act.
The learned counsel for the respondent emphasized that it is not the duty of the court to grant Statutory Right of Occupancy. The court only declares that the person so declared is entitled to the Statutory Right of Occupancy and this enables the person to go for the Certificate granting him the Statutory Right of Occupancy. He demonstrated that the learned trial judge in his judgment as contained in pages 67 to 73 of the record of proceedings, traced the history of the land at page 72 and in page 73 had this to say after a review of the case:
“The plaintiff is entitled to a declaration that the piece or parcel of land situate at New Era Layout, Enugu, otherwise, known as Plot 272 New Era Layout, Enugu belongs to him – the plaintiff”
The learned respondent’s counsel pointed out that the plaintiff/respondent in proving his case called four witnesses. He refers to the evidence of PW2 Chief Joseph Onyia being the chairman of Isiagu – Umuaniabor family as contained in pages 17 – 20 and 28 – 29 of the record of proceedings. He also referred to the evidence of PW3 one Chief Oliver Okonkwo Agbo as contained in pages 30 – 35 of the record of proceedings.
The learned counsel for the respondent further pointed out that the registered documents of the land in dispute from the first purchase by Japhet Odigwe through Gateway Property and Investment Limited to Emeka Okoli were all done before the fraudulent sale to the Appellant in 1989. He stressed that the Appellant confirmed this fact himself at page 47 line 5 of the record where in his evidence in – chief, the appellant stated thus:
“When I was searching at the land registry, I discovered that the land was already registered”.
The learned counsel further stressed that the Appellant confirmed that he was told that there was a land dispute over the ownership of New Era Layout, adding that no question was asked to any of the plaintiff’s witnesses in cross examination and in the cause of the defence, no process or judgment with respect to the purported dispute, was tendered in evidence: not even the authority by which the purported attorneys sold the land to the appellant was tendered.
It is the submission of the learned counsel for the respondent that the plaintiff’s case at the lower court rests on acquisition of title which he traced to the root, that is, the Isiagu – Umuanibor family of Amechi Awkunanaw tendered documents of registered titles. He demonstrated that the Plaintiff has discharged the burden placed on him. He cited the cases of Ephraim Okoli Dim V. Isaac Enemuo (2009) 4 SCNJ 199, OLAGUNJU V. CHIEF E.O. ADESOYE (2009) 4 SCNJ 96 AT PAGE 126 – 127 AND Idundun V. Okumagba (1976) 9 – 10 SC 227.
He urges the court to hold that the documents tendered by the respondent are valid and subsisting and resolve this issue in favour of the respondent.
On the respondent’s Issue No. 2, the learned counsel for the respondent adopted his argument and submission on issue No. 1 above.
On the respondent’s issue No. 3, the learned counsel for the respondent reiterates that the pertinent question to ask now is whether the issue raised by the appellant with regards to equity avails him? He answered in the negative, adding that there is nothing like equities of interest in the instant case. He further stressed that even if there are equities, the respondent’s equity that is backed by the registered title of PW4 is the first in time. The learned counsel demonstrated that from the record of proceedings, the documents of title of the respondent was said to be undergoing the process of registration when this matter came to court. He emphasized that the property had earlier been registered, first by Mr. Odigwe, second by Gateway Properties Investment Company Limited and thirdly by Emeka Okoli who transferred the title to the plaintiff whose document was being processed at the Deeds Registry Office for registration. He further highlighted that PW2 gave in evidence that the people who granted the lease to the defendant had no authority to do so as the power of Attorney earlier granted to them had lapsed and revoked before they fraudulently executed the deed of lease to the defendant.
It is the further submission of the respondent’s counsel that the defence of the defendant is incoherent. The defendant claimed that he had eight plots of land sold to him by the radical title holders. DW3 – Elder Ulasi at page 52 of the records said the appellant bought six plots of land not eight plots. The DW 4 at page 56 of the record tendered the lease – Exhibit M which was executed for the defendant and it does not bear the signature of the DW 4. He quoted, the DW 4 stating in evidence as follows:
“I now have the lease. Here it is: My signature is not on Exhibit M, We all did not sign the lease. There is no document I signed for Reverend Ugah. I was one of the attorneys at the time. We delegated four people to sign on our behalf. We were delegated to act for the community. We are twelve in number. No Section authorizes us to delegate to others. I signed some other documents, I don’t remember the documents I did not sign.”
The learned counsel for the respondent urges this court to discountenance the evidences of one Joel Ngene who testified for the appellant at page 57 of the record. The witness admitted that he was one of the four signatories to exhibit M. He later turned round to claim that he did not know whether the document was used to sell the land. In this regard, the learned counsel holds that Joel Ngene is not a witness of truth and he urges the court to share the same view with him.
On the respondent’s issue No. 4, the learned counsel stated that the appellant admitted the demolition of the respondent’s fence works. This was re-echoed by PW 3 at pages 30 and 34 of the record of proceedings. He stated that the evidence of PW1 and PW3 were not controverted adding that since the damaging of the walls was not denied by the appellant, there was no need for further proof. He urges the court to hold that the lower court was right in awarding special damages on N132,000 (One Hundred and Thirty Two Thousand Naira only).
On the respondent’s issue No.5, the learned counsel for the respondent emphasized that injunctions are not granted as a matter of cause. It is only granted when the plaintiff has proved his case in order to protect further encroachments and incursions into the plaintiff’s land. He demonstrated that the lower court found that the plaintiff established his case entitling him to a legal right over the land in dispute hence the justification for the order for perpetual injunction against the appellant, his agents and privies from further acts and trespass on the said land. Finally he urges the court to dismiss the appeal and uphold the judgment of the lower court.
I have carefully studied the history of this case through the lower court’s proceedings on record. I have also thoroughly studied the briefs of argument of the parties in this appeal through their legal representatives. The parties formulated five (5) issues respectively for the determination of this appeal. I will now summarize these issues and apply same to determine this appeal.
The propelling wind of crisis in this matter is the ownership of Plot 272 New Era Layout, Enugu between the plaintiff/respondent and the defendant/appellant. Another contention arising from this litigation is the malicious demolition of fence works at Plot 272 New Era Layout resulting to the claim for damages by the plaintiff/respondent. The finding of facts to the two points highlighted above settles all the entire issues raised by the parties in this appeal. The issues are summarized as follows:
1. Whether the learned trial judge was right in holding that the plaintiff is entitled to a declaration that the land in dispute belongs to the plaintiff.
2. Whether the learned trial judge was right in awarding the damage of (N132, 000) One Hundred and Thirty Two Thousand Naira only to the plaintiff.
I will now proceed to consider Issue No. 1 as stated above.
The plaintiff/respondent and the defendant/appellant are the two contenders to the ownership of the land in question. The respondent vide a writ of summons dated 11th March, 1998 instituted the instant action against the appellant in Suit No. E/90/98.
“It is a cardinal rule in our legal jurisprudence that the onus of proof in a claim for declaration of title to land lies squarely on the claimant to prove his case on the strength of his own case – See Kodilinye V. Mbanefo Odu (1935) 2 WACA 336, Idundun V. Okumagba (1976) 1 NMLR 200. A declaration of title to land is therefore granted at the discretion of the Judge after seeing and hearing both sides in the Suit. To succeed, a party must show how the land devolved and eventually came to be owned by him. The party needs to narrate to continuous chain of devolution. At the end of the oral evidence, the Judge is to decide which of the two is telling the truth and proceed to grant a declaration of title to the side that impresses him”.
In the instant matter it is the case of the plaintiff/respondent on record that the radical owners of the land in dispute was the Isiagu Umuaniebor family of Amechi Awkunanaw. They leased land to one Japhet Obiora Odigwe and the transfer of title was duly registered at the deed Registry Office at Enugu. Japhet Obiora Odigwe later transferred his title to Gateway Property and Investment Limited and the transfer was duly registered. The Gateway Property and Investment Limited further transferred title to one Emeka Okoli and the Deed was duly registered. The later – Emeka Okoli further transferred title to the plaintiff/respondent in July 1996. The deed was undergoing the process of registration when this action was instituted in court. These facts are contained in the plaintiff’s amended statement of claim at page 25 of the record of proceedings.
It was the defence/submission of the defendant/appellant that he bought the said land in dispute in July, 1989 direct from the original owners the Ishiagu Umuaniebor family of Amechi Awkunanaw, Enugu, adding that he bought the said land from the valid attorneys of the Umuaniabor family of Amechi Awkunanaw; See paragraphs 6 and 8 of the defendant/appellant’s amended statement of defence at page 41 of the record of proceedings. The defendant/appellant gave in evidence on record that he did not conduct any search on the land when buying, adding that the purported sellers told him that the land belonged to them and he went ahead and paid them. He however regretted that he could have conducted (sic) a person before buying. He further stated on record that he tried to effect registration of the said land when he discovered that Plot 272 had been registered. These facts are elucidated at page 49, lines 7, 8, 9, 10, 14 and 15 of the record of proceedings.
The event that ignited fury on the land was that in the night of 22nd August, 1996, the appellant caused a demolition of the fence wall of Plot 272, which is the subject matter of this litigation. This act of demolition was admitted by the appellant in evidence. Several meetings and arrangement of the appellant and the respondent to dialogue over the land and the demolished fence wall met a brick wall, hence the respondent initiated the instant litigation.
At the trial, the respondent called three witnesses in addition to himself for the plaintiff. His witnesses were Mr. Joseph Onyia (whom the appellant claimed was the chairman of the group that sold the land to him) Mr. Emeka Okoli and Chief Oliver Okonkwo Agbo. The appellant called four witnesses in addition to himself. His witnesses were: Peter Okafor who testified as DW2, Elder Cliford Nwachukwu Ulasi who testified as DW3, Ifeanyi Chukwu Ani who testified as DW4 and Joel Ngene who testified as DW5.
The plaintiff/respondent gave his evidence at page 11 to 16 of the record of proceedings in support of his amended statement of claim. The PW 2 – Joseph Onyia testified at page 17 of the record tracing the root of title to the land in dispute. His evidence synchronized with the evidence of the respondent Sylvanus Ugwu Agbo. He further stated that as the chairman of the committee having the management Attorney of his family, he and his group looked into the papers of the appellant and the respondent and discovered that the people who sold to Rev. Ugah – the appellant, had no mandate of their people to sell land. See page 17, lines 4 to 18 of the record as hereunder reproduced for ease of reference:
“My names are Joseph Onyia. I am the chairman of Umuanibe, Isiagu Amabo, Amechi Owkunanaw, I live at Isiagu village, Amechi Awkunanaw, I am a driven as the chairman, my family (sic) my job is to look after my family land at New Era Layout, Enugu. I know the plaintiff, one Mr. Okoli came to me and told me that he sold his parcel of land to the plaintiff, I know the land – No, Plot 272 and 273. My family sold to one Japhet Odigwe who sold to Gateway Property Investment Company and Ltd. (sic). They later sold to Emeka Okoli, Okoli sold to the plaintiff I know Rev John Ugah. Once we met him when he claimed that he bought land from our family. He also showed us some documents. We went to the Lands Registry and found out that they were not registered. There were eight plots. We asked him to pay us. He did. We later discovered when Mr. Okoli came with the plaintiff with papers we discovered that the people who sold the land to Rev. Ugah had no mandate of our people to sell land.”
The PW II testified to the root of the periodic grant of Power of Attorney to appointed members of Umuaniabor family of Amechi. He traced the appointment of George Ugwu, Chima Ogbodo, Godwin Odo, Isreal Ugwu, Joel Ngene and Agwu Nwobodo in 1975 to Exhibit F. He also traced the appointment of Ugwu Onovo, Ifeanyichukwu Ani, Francis Nende, Okechukwu Ugwu, John Chime, Emma Ogbodo and Mathias Ogbodo in 1978 to Exhibit G. He further traced the incumbent appointees to himself, Dr Emeka Agwu, George Onovo, Amechi Ani,
Chief Samuel Ugwu and John I. Agwu to Exhibit H. See page 28 lines 15 to 21 and page 29, lines 1 to 7 of the record of appeal.
Chief Oliver Okonkwo Agbo testified as PW III. He testified to the fact that he mediated between the appellant and the respondent over the demolished fence of Plot 272, New Era Layout, Enugu. His evidence at pages 30 to 34 of the record threw heavy support to the evidence of the respondent. At page 33, from lines 20 to page 34, lines 1 to 5, he stated thus:
“I never advised the plaintiff to move for the church. I advised Rev. Ugah to negotiate with the plaintiff for the land. When he accepted my advice to settle the plaintiff for the damages done, I promised to make land available that I would help to find land, I want them to settle instead of coming to court, I showed Rev. Uga another plot. He delayed travelled to overseas. When he came back he said the cost of the land was too much, I am a preacher.”
Mr. Ben Emeka Okoli testified as PW4. He testified that he sold to the respondent, adding that he enjoyed quiet possession of the plot before he sold to the respondent in 1995. He further stated that he bought the same land from Gateway Properties and Investment Limited, adding that before he bought, he conducted a search and found out that his Vendor had good title, hence he paid. He said he did not buy directly from the native and the company he bought from did not deceive him.
The appellant led in evidence that he bought the same plot 272 under contention for his church from the family of Umuanike Umuonyia of Amechi Awkunanaw. He admitted that they knocked down the fence wall because the plaintiff trespassed into their plot of land. He stated that when he discovered that somebody was encroaching upon the land, they met the chairman of the new committee of the land owners to find out whether they knew anything about the encroachment. He further stated that the new committee through its chairman – Mr Onyia promised to find out the person. He further stated that Chief Oliver Agbo brought the respondent to his house to ask if he would like settlement over the broken fence. He tendered Exhibit E which contained the 8 plots he bought including the plot in dispute.
At page 47 lines 5, 6, 7, 13 and 14 of the record, the appellant stated thus:
“Lines 5, 6, and 7 – I was in the country when he entered it. When I was searching at the Land Registry, I discovered that the land was already registered,
Lines 13 and 14 – I asked Mr. Onyia to invite the plaintiff to negotiate so as to settle”
DW2 – Peter Okafor led in evidence that they pulled down the fence. He is a member of the appellant’s church – “Jesus the Way Mission”. He further stated that he was a party to the negotiation for the purchase of the land, but he did not sign neither did he know whether the land was registered or not.
DW 3 – Elder Cliford Nwachukwu Ulasi testified that the owner of the land is Rev. John Uga, adding that he assisted him to buy the land. He stated that the appellant bought about (6) six plots of land. He confirmed the settlement attempt between the parties before the instant court action. He further stated that the people who sold the land to them were members of the family that own the land, adding that they showed to them the Power of Attorney and the Power of Attorney was current.
DW4 – Ifeanyi Chukwu Ani testified that he is from Umuanike Umugwuoyia Isiagu Amechi Awkunanaw. He stated that Plot 273 was one of the plots they sold to Rev. Uga. He said that his committee delegated four persons who signed the lease given to Rev. Uga. Under cross-examination, he stated thus at page 56 lines 8 to 14:
“I now have the lease. Here it is – Exhibit M, My signature is not in Exhibit M. We all did not sign the lease. There is no document I signed for Rev. Ugah, I was one of the attorneys at the time. We delegated four people to sign on our behalf. We were delegated to act for the community. We are twelve in number. No section authorizes us to delegate to other. I sign (sic) some other documents, I don’t remember the documents I did not sign”
DW 5 – Joel Ngene testified that the appellant came to them for the purchase of land. He stated that the appellant bought many plots. He said he was one of the attorneys from 1975. He was among the four delegates that signed the lease to the appellant. Other signatories were Okafor Ogbodo, Goddy Odo, and Chima Ogbodo. He was also among the attorney in 1975 when the family leased the land in dispute to one Japhet Odigwe.
Now, I have carefully traced the root of title to the locus inquo and having done so, I discovered that the radical owners of the land alienated the parcel of land in dispute to one Japhet Odigwe who sold to Gateway Property and Investment Ltd. The company further sold to Emeka Okoli who finally sold to the plaintiff/respondent. All the transactions from the radical owners to Emeka Okoli were duly registered in the Land Registry, Enugu. The documents of the plaintiff/respondent were already deposited at the Land Registry for registration when this action was instituted.
There is no doubt that the appellant parted with some money to a group of persons as consideration for some plots of land situate at the New Era Layout, Enugu in which plot 272 under contention was among: The pertinent question in the prevailing circumstance is whether or not the people who sold to the appellant had the authority of the radical owners of the land to sell? This question is determined by the evidence of PW2 as earlier reproduced at page 16 of this judgment.
The position of the law is that whoever intends to buy land must make due consultations otherwise known as search before parting with his money. I am of the view that whoever bought a piece of land from a person or group of persons not validly authorized to sell (where the land is under family or communal ownership) has bought nothing as such a transaction is illegal and void ab initio.
Before I rule on this Issue, I think it is of obvious necessity to reproduce part of the findings of the trial court in its judgment of 3rd December, 2003 in Suit No. E/90/98 at page 72, lines 25 to 29 and page 73 fines 1 to 2 of the Record of Appeal.
“The defendant mentioned Messers Okafor Ogbodo, Joel Ngene (PW5) Agwu Nwobodo, Chima Ogbodo and one Godwin Odo as those who sold to him. The PW2 stated “these persons were given authority in 1975. Their authority had expired”. It is fraudulent on the part of the DW5 to take part in the sale of the land to Japhat Odigwe in 1975 and also took part in the sale of the same plot to Rev. J. Ugah in 1989″.
In the light of the foregoing, I am of the considered opinion that the learned trial Judge carried out his job diligently. I therefore resolve issue No. 1 in favour of the Respondent against the Appellant.
ISSUE NO. 2
It is on record that the respondent having fenced the land in dispute has taken possession of the said land. When he discovered that his fence wall was pulled down, he consulted the man that sold the land to him. The man took him to the Chairman of the radical owners of the land. They then traced the demolition to the appellant who admitted the act.
The plaintiff/respondent in his action claimed the sum of One Hundred and Thirty Two Thousand Naira (N132, 000.000) only damages against the defendant/appellant for trespass on his land. On the premise of Issue No. 1 decided above wherein it is ruled that the plaintiff/respondent proved the ownership of the land in dispute, it was obvious that the act done by the defendant/appellant in pulling down the fence walls of Plot 272 New Era Layout, amounted to an act of trespass. “Trespass” is a tort dies in diem. The plaintiff in such an action is complaining against a wrong against possession. If the defendant admits the fact of encroachment, then he is to show justification that what he did is authorized by some positive law, otherwise he is liable see Arhurhu V. Delta Steel Co. Ltd (1997) 3 NWLR Page 82 at page 85, Ratio 3.”
In the instant case, I have weighed the totality of evidence adduced by the defendant/appellant at the trial. The appellant’s claim at the trial was tenable. I therefore resolve that the trial Judge was right in awarding the damages to the plaintiff/respondent as claimed.
Issue No. 2 is resolved in favour of the Respondent against the Appellant.
In conclusion, I cannot see the circumstances upon which this appeal could be sustained. The appeal fails and it is hereby dismissed. The judgment of Agbata , J. in suit No. E/90/1998 delivered on 3/12/03 in Enugu Judicial Division of the High Court of Enugu State is hereby affirmed. N50,000.00 cost to the Respondent against the Appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Abubakar Jega Abdul-kadir JCA. I agree with the reasoning and conclusion. I abide with the consequential orders.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the judgment of my learned brother, ABUBAKAR JEGA ABDUL-KADIR JCA just delivered. I fully agree with the conclusion that the appeal lacks merit following the reasons well advanced therefor. I therefore dismiss the appeal and abide by the award of N50,000.00 costs to the respondent.
Appearances
Mr. C. OkonkwoFor Appellant
AND
Mr. O. AkpamgboFor Respondent
