IFEANYI AMAEFULA v. CHRISTIAN NWAIZUZU MBAEGBU & ANOR
(2018)LCN/12289(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of December, 2018
CA/OW/251/2015
RATIO
LAND LAW: POSSESSION OF LAND
“It was clear that the Appellant and his ancestors have lived and still living on the land in dispute for a very long time. In the case of SALAMI VS. LAWAL (2008) ALL FWLR (Pt. 438) 229 paras D-E it was held thus: – ‘Possession of property or parcel of land means the occupation or physical control of the property or parcel of land either personally or through an agent or servant of the claimant where such possession is long enough as to warrant the inference of ownership, it could translate to ownership’.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
IFEANYI AMAEFULA Appellant(s)
AND
1. CHRISTIAN NWAIZUZU MBAEGBU
2. UCHENNA NWAIZUZU MBAEGBU Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Customary Court of Appeal of Imo State sitting in Owerri delivered on the 4th February, 2014 in Suit No. CC/OW/A169/2011.
The Appellant as Plaintiff had filed a suit against the Respondents as Defendants in Amaraku Customary Court. The Defendants filed a cross action against the Plaintiff. The two suits were consolidated and eventually transferred to Nwangele Customary Court, sitting at Onunwangele. That Court heard the Suits and at the end gave judgment against the Plaintiff, by dismissing his claims while awarding all the reliefs in the cross action. Unhappy with this decision, the Plaintiff appealed to the Customary Court of Appeal of Imo State, sitting in Owerri which upturned the decision of the Customary Court but turned the Plaintiff into a Customary Tenant.
Piqued by the decision, the Plaintiff has appealed to this Court by filing a Notice of Appeal containing two Grounds, on 7th April, 2014 (See pages 219 – 222 of the Record of Appeal).
Henceforth I shall refer to the Plaintiff as the Appellant and the Defendants as Respondents in this judgment. Only the Appellant filed Appellant’s Brief of Argument on 30/6/2017 but deemed properly filed and served on 5/10/17. The Respondents filed no Respondents’ Brief of Argument and so on 24/10/18 when this appeal came up before us we heard it based only on the Appellant’s Brief of Argument, the Respondents having failed to file their Brief despite the fact that they sought for and obtained leave to file their Brief out of time which was granted on 5/10/17. Therefore the appeal shall be determined based on the Appellant’s Brief of Argument.
The grounds of appeal shorn of their particulars are as follows:
GROUND ONE: The Learned Judges of the Customary Court of Appeal, Owerri Imo State, Hon. Justice F. C. Abosi, Presiding Judge, Hon. Justice M.E. Njoku, and Hon. Justice V. U. Okorie Judges erred in Law when they awarded to the Respondents that which they did not neither (SIC) claim in their counter claim nor proved in evidence, occasioning a miscarriage of Justice?.
GROUND TWO: The Learned Justices (SIC) of the Customary Court of Appeal, Owerri Imo State, Hon. Justice F. C. Abosi, Presiding Judge, Hon. Justice M.E. Njoku, and Hon. Justice V. U. Okorie Judge erred in Law when they inadvertently or omitted to evaluate the totality of the evidence in this case before arriving at the decision that the Appellants are Customary tenants to the Respondents which has occasioned a miscarriage of Justice.?
From the two grounds, learned Appellant’s Counsel Elder I. A. Onoja, formulated two Issues for determination of this appeal which are as follows:
I)?Whether the Customary Court of Appeal of Imo State was not wrong when it held that the Appellant is the customary tenant of the Respondents, having earlier held that the Customary Court was wrong to have declared that the Respondents were entitled to the Customary Right of Occupancy over the land in dispute?.
II) Whether the Appellant’s acts of long possession of the land in dispute does not entitle him to the Customary Right of Occupancy over the land.?
NOW TO THE ISSUES:
ISSUE 1
The Learned Counsel for the Appellant Elder I. A. Onoja quoted a portion of the judgment of the lower Court at page 213 of the Record of Appeal dealing with the decision of the Customary Court granting to the Respondents Customary Right of Occupancy and submitted that the Court below made it clear that the Respondents were not entitled to the Customary Right of Occupancy over the disputed land. He then questioned, Who is entitled to the Customary Right of Occupancy over the land in dispute if the Respondents are not.
He answered the question that since the Customary Court of Appeal had declared that the Respondents were not entitled to the Customary Right of occupancy that Court ought to have declared the Appellants as being entitled to the same. Learned Counsel cited the case of NWANKWO VS. JUBRIL (2012) ALL FWLR (Pt. 646) 510 paras E-F in which customary right of occupancy was defined as follows:-
“By the provisions of Section 51 (1) of the Land Use Act, Customary Right of Occupancy means the right of a person or community lawfully using or occupying land in accordance with Customary law and includes a Customary Right of occupancy granted by a Local Government under the Act.”
Learned Counsel contended that the Appellant has been in effective possession of the land in dispute for several years with his family. He cited the case of AGBOOLA VS. UBA PLC, (2011) ALL FWLR (Pt. 569) (incomplete citation) in support of the principle of the Law that long possession is one of the methods of proving ownership of land in Nigeria. He then submitted that by the finding of the lower Customary Court of Appeal that the Respondents did not prove their case and were therefore not entitled to the grant of Customary Right of Occupancy, the lower Court ought to have granted same to the Appellant, relying on ADEDEJI VS. OLOSO (2007) ALL FWLR (Pt. 356) 644 paras G-H where the Supreme Court held that a Customary tenant in Customary law parlance, is not ‘gifted’ the land and not a ‘borrower’ or lessee, but a grantee and holds a determinable interest which may be enjoyed in perpetuity subject to good behavior. He also cited the case of WAGHOREGHO VS. AGHENHEN (1974) 1. S.C.in support.
Learned Counsel submitted that the Appellant is not a customary tenant as declared by the lower Court but is the rightful person to have been awarded the Customary Right of Occupancy over the land in dispute and so urged us to hold.
ISSUE 2
Learned Appellant’s Counsel on issue 2 submitted that the acts of long possession of the land in dispute by the appellant have entitled him to the grant of the Customary Right of Occupancy. Again he submitted that the appellant has proved his acts of ownership, extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership, relying on SALAMI VS. LAWAL (2008) ALL FWLR (Pt. 438) 229 paras O-E; IDUNDUN VS. OKUMAGBA(1976) 10 S.C. 227 and OMOREGIE VS. IDUGIEMINANYE (1988) 2 NWLR (Pt. 5) 41.
In conclusion learned Appellant’s Counsel urged us to set aside the decision of the lower Court and allow the appeal.
RESOLUTION OF THE ISSUES
ISSUE 1
There is ample evidence that the Appellant and his forebears have been living on the said land in dispute for over 80 years. The Respondents in their counter claim did not aver and prove that the land was granted to the Appellant’s fore-fathers. It was only during trial that DW2 stated that the land in dispute was granted to the fore fathers of the Appellants. And this story he was told, and that he did not witness the grant. This was the evidence the trial Customary Court at Onwangele relied upon in granting Customary Right of Occupancy to the Respondents.
The lower Court rightly rejected this evidence declaring the decision of the trial Customary Court as wrong. However it erred by relying on the same rejected evidence of grant of the land in dispute to render the Appellant Customary tenant.
It is quite obvious that the lower Court was in grave error in that decision. The Appellant was able to prove that they were on the land for over 80 years. This, in absence of evidence of grant, entitles the Appellant to the grant of Customary Right of Occupancy.
I hold that the finding of the Lower Court is perverse. I resolve this issue in favour of the Appellant.
ISSUE 2
The lower Court after rejecting the award of Customary Right of Occupancy by the trial Court to the Respondents, erred in Law when it turned the Appellant into Customary Tenant. There was no basis for this award.
It was clear that the Appellant and his ancestors have lived and still living on the land in dispute for a very long time. In the case of SALAMI VS. LAWAL (2008) ALL FWLR (Pt. 438) 229 paras D-E it was held thus: –
“Possession of property or parcel of land means the occupation or physical control of the property or parcel of land either personally or through an agent or servant of the claimant where such possession is long enough as to warrant the inference of ownership, it could translate to ownership”.
In the instant case, the Appellant, apart from being in possession of the land in dispute for several years spanning over 80 years, has also been exercising diverse acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. Even in the contributory judgment of Justice V. U. Okorie, the Learned Judge of the lower Court held that it will be injustice to displace the Appellant from his ancestral land. I agree with him.
On the whole, this appeal succeeds and is allowed. The decision of the lower Customary Court of Appeal of Imo State is hereby set aside. I declare that the Appellant is entitled to the grant of Customary Right of Occupancy over the disputed land. I award cost assessed at N30,000.00 in this Court and N10,000.00 in the Court below in favour of the Appellant and against the Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment, just delivered by my learned brother, Ali Ibrahim Andenyangtso, JCA and I agree with his reasoning and conclusions.
It should be appreciated that even in a situation that the Respondents were to have proved that their forefathers granted the land in dispute to the Appellant, that that would not discount from Appellant’s right of ownership or possession over the land, going by the principle in the old case of Ekpa & Ors vs Utong & Ors (1991) LPELR – 1084 SC. which says:
“…I think it has to be conceded that a person is completely without power or competence to revoke a completely constituted gift of land made inter vivos by his ancestor who let the donee into possession some one-and-a-half centuries ago, unless, perhaps, he shows that such a gift was null and void ab initio or the gift was subject to a condition which has been broken. But none is the case here. Such a gift of land completed with delivery of possession according to custom, is a transfer of ownership of the land to the donee and extinction of the rights of those who claim through or under the donor.”
See also Isiohia & Ors vs Elechi (2018) LPELR – 44988 CA, and Ashilonu & Anor. Vs Ohale & Anor (2018) LPELR – 44267 CA, where the above principle was applied. I too allow the Appeal and abide by the consequential orders in the lead judgment.
Appearances:
Elder I.A. OnojaFor Appellant(s)
For Respondent(s)
Appearances
Elder I.A. OnojaFor Appellant
AND
For Respondent
