MR. UCHENNA REGINALD EZEKWERE v. NZE JAMES CHUKWUEMEKA OKIKE
(2018)LCN/12469(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/OW/239/2014
RATIO
LAND LAW: STATUTORY RIGHT OF OCCUPANCY
“The grant of a statutory right of occupancy over a piece of land does not extinguish pre-existing vested rights or interests in the said land unless the vested right is revoked. See DANTSOHO v. MOHAMMED (2003) 6 NWLR PART 817 p. 457; ILONA v. IDAKWO & ANOR (2003) 11 NWLR (PT 830) 53.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
LAND LAW: SALE OF IMMOVABLE PROPERTY
“However a sale of land or immovable property by Sheriff when not challenged within a relevant time to set it aside and a certificate of title is issued becomes absolute. See USENFOWOKAN v. IDOWU & ANOR (1975) LPELR-3426; (1975) 4 SC. REPRINT 136 FIRST BANK OF NIGERIA PLC v. FASHAR (2000) 6 NWLR (PT. 662) 573, KACHALLA v. BANKI (2001) 10 NWLR (PT. 721) 442.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
LAND LAW: RIGHT OF OCCUPANCY
“It is trite that a customary Court lacks jurisdiction over land subject of statutory right of occupancy. See JOV v. DOM (1999) 9 NWLR PT. 620 p. 538; OGIGIE &ORS v. OBIYAN (1997) 10 NWLR PT. 524 p. 179.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
Before Their Lordships
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria
Between
MR. UCHENNA REGINALD EZEKWERE
(For himself and as
representing the other members of John Ezekwere Family Umuabiahu Eziali, Ezi-Mgbidi Autonomous
Community)Appellant(s)
AND
NZE JAMES CHUKWUEMEKA OKIKERespondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the judgment in respect of the appeal filed by the Claimant at the lower Court against the decision of Imo State High Court delivered on 18/3/2014 in Suit No: HOU/39/2010 UCHENNA REGINALD EZEKWERE & ORS v. NZE JAMES CHUKWUEMEKA OKIKE.
The Claimant had instituted on action against the Defendant at the lower Court claiming as per paragraph 42 of their statement of claim as follows:-
WHEREFORE the Claimant’s claims are as follows:
(a) A declaration that the Claimant is entitled to the statutory right of occupancy over that piece or parcel of land known as and called ‘Uhu Onu-Eke Obana’ whose dimension or area is described in the property plan of late John Ezekwere dated 26/3/1984, and situate, lying and being at Okwudor in Obi-Mgbidi Autonomous Community in Oru West L.G.A.
(b) N5,000,000.00 (Five Million Naira) general damages for trespass committed on the land by the Defendant.
(c) Perpetual injunction restraining the Defendant, his agents, privies and anybody howsoever called from further trespass into the land in dispute.”
Pleadings were filed and exchanged by parties.
After hearing the parties the learned trial Judge entered judgment in the following terms:-
“I hold in the circumstance that this public auction sale of the land in dispute to the Defendant by virtue of an order of attachment issued at by the Customary Court Ibiasoegbe and the subsequent issuance of Exhibit G, the statutory certificate of occupancy over the land to the Defendant clearly defeats/overrides any prior interest, the Claimant had on the land.
On the whole, this suit is devoid of any merit and any interest of the Claimant over the land in dispute has been defeated by the subsequent public auction sale of the land and Exhibit G issued to the Defendants.
Accordingly, this suit is deserving of dismissal. It is accordingly dismissed. Claimant to pay costs of N50,000.00 to the Defendant.
Miffed by the above decision the Claimant filed a Notice of Appeal on 5/5/2014 challenging the said decision on three grounds.
Subsequently by leave of Court, the Appellant filed Amended Notice of Appeal on 18/5/2016. The Amended Notice of Appeal contains eight grounds of appeal which read thus:-
GROUND ONE
ERROR IN LAW
1. The learned trial Judge erred in law when he refused to decree a declaration of title in favour of the Appellant having found that the traditional history of the land in dispute as pleaded by the Appellant was not in dispute and unchallenged by the Respondent.
PARTICULARS OF ERROR
a. The Appellant’s case is that his late father bought the land in dispute under the native law and custom of Mgbidi from Okworogu family in 1973 for the sum of N280.00 (Two Hundred and Eight Naira).
b. The Appellant pleaded and proved the root of title of his late father’s sellers via the traditional history of the land as given by one of the surviving sellers of the land in dispute.
c. The trial Court found that the Respondent did not challenge the traditional history as pleaded and proved by the Appellant.
d. Traditional history is one of the recognized ways of proving title to land.
e. The traditional history of the Appellant is consistent, satisfactory and cogent.
GROUND NUMBER: TWO
ERROR IN LAW:
The learned trial Judge erred in law when he held as follows:
“I hold in the circumstance that this public auction sale of the land in dispute to the Respondent by virtue of an order of attachment issued at by the Customary Court Ibiasoegbe and the subsequent issuance of Exhibit G, the statutory right of occupancy over the land to the Respondent clearly defeats/overrides any prior interest the Appellant had on the land.”
And clearly came to a wrong and an unjust conclusion which occasioned a miscarriage of justice.
PARTICULARS OF ERROR
a. Respondent’s root of title is the alleged public auction sale of the land in dispute.
b. The alleged order of attachment issued by the Ibiasoegbe Customary Court authorizing the auction sale was not produced in Court.
c. The Respondent gave oral evidence of the contents of the Ibiasoegbe Customary Court order of attachment in the trial Court without producing the order.
d. The learned trial Judge relied heavily on the said withheld Ibiasoegbe Customary Court order of attachment in his judgment to hold that there was a public auction sale of the land in dispute.
e. Decision of the trial Court in respect of the alleged order of attachment is speculative.
f. The Respondent under cross-examination denied the existence of the order of attachment by the Ibiasoegbe Customary Court as pleaded by him and relied upon by the learned trial Judge in his judgment.
g. There was no evidence before the learned trial Judge that the land in dispute was attached by order of Court to satisfy any judgment debt owed by the Appellant.
GROUND NUMBER: THREE
ERROR IN LAW
The learned trial Judge erred in law and came to a wrong decision when he held thus:
“Again learned Claimant’s counsel has submitted that the Customary Court Ibiasoegbe has no jurisdiction to order the sale of land subject matter of statutory right of occupancy. This is misconceived because the order has already been made. The law is trite that orders of Court remain valid, binding and subsisting until set aside by the Court or on appeal. To that extent there is no evidence that the said order of the Customary Court has been set aside, it does not lie in the mouth of the Claimant to contend that the Court has no jurisdiction. He needs to do the needful if he so desires”.
PARTICULARS OF ERROR
a. The land in dispute is a subject of statutory right of occupancy.
b. Under Section 39 of the Land Use Act 1978, Customary Court Ibiasoegbe has no jurisdiction over the land in dispute.
c. Appellant was not a party in the proceedings in which the alleged order was made.
d. The alleged order was made without jurisdiction.
GROUND NUMBER: FOUR
ERROR IN LAW
The learned trial Judge erred in law and came to a wrong decision when he held thus:
“Again by Exhibit E which was Defendant?s letter to the Claimant’s father before this action was filed, he gave details of public auction sale whereat he bought the land in dispute. Despite this fact, there was no challenge to the said public auction sale.”
PARTICULARS OF ERROR
a. The Appellant in paragraph 36 of his statement of claim dated 22/6/2010 and filed on 28/6/2010 acknowledged receipt of Exhibit E wherein the alleged public auction sale was mentioned.
b. The Appellant, in paragraph 37 of his said statement of claim averred that his late father replied to Exhibit E wherein he vehemently denied the allegation of the purported public auction sale of the land in dispute.
c. The Respondent in his amended statement of defencee dated 3/11/2010 and filed on 4/11/2010 in paragraph 21 acknowledged receipt of the reply to the letter, Exhibit E, averred in paragraphs 36 and 37 of the Appellant’s statement of claim.
d. The Respondent in his amended state of defence also admitted paragraphs 36 and 37 as averred in the Appellant’s statement of claim in denial of the alleged public auction sale.
GROUND NUMBER: FIVE
ERROR IN LAW
The learned trial Judge erred in law and came to unjust decision when he held that the statutory right of occupancy tendered by the Respondent defeated whatever rights the Appellant had in the land in dispute.
PARTICULARS OF ERROR
a. The statutory right of occupancy, Exhibit G, tendered by the Respondent showed that the land in dispute situates and lies in Mgbidi, an urban area, and outside the territorial jurisdiction of Ibiasoegbe Customary Court which has jurisdiction only over land in rural areas.
b. The Customary Court Ibiasoegbe, Oru West L.G.A. has no jurisdiction under its rules particularly Order 17 Rule (1) and Order 18 Rule (3) of the Customary Court Rules 1989 to order for sale or attachment of immovable property subject of statutory right of occupancy.
c. The Customary Court Ibiasoegbe has jurisdiction only over land within its territorial jurisdiction and subject of customary right of occupancy.
d. The Appellant is already a deemed holder of statutory right of occupancy and the same was not revoked before Exhibit G was issued in support of the alleged public auction.
GROUND NUMBER: SIX
ERROR IN LAW
The learned trial Judge erred in law and came to an unjust decision when he held that the Appellant did not file and serve a reply to the Respondent’s statement of defence to counter the averments of public auction alleged in paragraphs 9, 10, 11, 12, 13, 14 and 15 of the statement of defence.
PARTICULARS OF ERROR
a. The Appellant on receiving the statement of defence of the Respondent dated the 2nd day of August, 2010 and filed on the 23rd day of August, 2010 filed and served his reply and further deposition dated 30th day of August, 2010 and filed on the 6th day of September, 2010.
b. The Respondent later amended his statement of defence dated 3rd day of November, 2010 and filed the same date.
c. The Respondent in the said amended statement of defence repeated his allegation of public auction in the same paragraphs 9, 10, 11, 12, 13, 14 and 15.
d. The Appellant in his said reply denied the allegations or averment of public auction in paragraphs 1, 2, 3, 4, 5 and 6 of his reply to the statement of defence and the later amended statement of defence.
e. The learned trial Judge clearly refused or neglected to consider the reply in his judgment and came to unjust decision.
GROUND NUMBER: SEVEN
ERROR IN LAW
The learned trial Judge erred in law when he held that the land in dispute is well known to the parties and the identity of the land in dispute is not in issue.
PARTICULARS OR ERROR
a. Both parties joined issues on the identity of the land vide paragraph 5(i)-(viii) of the statement of claim, and paragraphs 5, 5(a) and 17(a) of the amended statement of defence.
b. There is unchallenged evidence of the Appellant in proof of the identity of the land in dispute.
GROUND NUMBER: EIGHT
The judgment is against the weight of evidence.
After transmission of record of appeal parties filed and exchanged briefs of argument.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s Brief of Argument was filed on 17/6/2016. It was settled by his counsel DECLAN OBIOMA MADU ESQ.
Learned counsel to the Appellant formulated three issues for determination viz:
1. Whether the learned trial Judge was right in holding that the purported sale of the land in dispute on the alleged orders of the Customary Court Ibiasoegbe was valid and subsisting? (Distilled from grounds 2, 3 and 4 of the grounds of appeal)
2. Whether the learned trial Judge was right when he held that the Appellant’s right over the land in dispute was defeated by the statutory Right of occupancy granted to the Respondent over the same land? (Distilled from grounds 1, 5, 7 and 8 of the grounds of appeal)
3. Whether the learned trial Judge was right when he held that the Appellant did not file a reply to the Respondent?s statement of defence to counter the averments of Public auction alleged in paragraphs 9, 10, 11, 12, 13, 14 and 15 of the statement of defence? (Distilled from ground 6 of the grounds of appeal)
ISSUE NUMBER: ONE
1. Whether the learned trial Judge was right in holding that the purported sale of the land in dispute on the alleged order of the Customary Court Ibiasoegbe was valid and subsisting? (Distilled from ground 2, 3 and 4 of the grounds of appeal)
Learned counsel to the Appellant submitted that the trial Judge was in grave error when he held that the claimant did not file any reply to deny or challenge the said Public Auction sale of the land to the Defendant and this auction as pleaded was a very material fact for which the claimant must of necessity deny in a reply, the claimant was deemed to have admitted the said public auction sale of the land in dispute to the Defendant claimant’s counsel in his address made various submission challenging the said public auction sale and that I did not know how far he could go on that route taking into consideration that he never denied the said public auction sale in his pleadings. (See pages 93 lines 24-28, 94 lines 7-9 of the records of appeal) (Also see pages 15-16 of the records of appeal).
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant.
ISSUE NUMBER: TWO
Whether the learned trial Judge was right in holding that the purported sale of the land in dispute on the alleged order of the Customary Court Ibiasoegbe was valid and subsisting? (Distilled from grounds 2, 3 and 4 of the grounds of appeal)
Learned counsel to the Appellant contended that the purported order allegedly attaching the land in dispute which was the basis of the public auction sale was not before the Court and the Respondent in the heat of the cross-examination made a clean breast of the matter (See page 78 lines 13-15 of the record of appeal).
He submitted that the Respondent was not permitted by law to give evidence of the content of the Court order and the trial Judge was also precluded by law from relying on this imaginary document and that the holding by the learned trial Judge that such an order existed was at best in the realm of speculation which he was not entitled to indulge.
He further submitted that the learned trial Judge ought to have involved the presumption in Section 167 (d) of the Evidence Act. He relied on the cases of KARA v. WASSAH (2001) 18 NWLR PART 744 PAGE 117 AT 138 PARAGRAPHS A-C; OGBONNA v. OGBUJI (2014) 6 NWLR (PART 1403) PAGE 205 AT 227 PARAGRAPH B.
Learned counsel to the Appellant contended that the learned trial Judge was in error when he considered the challenge to the jurisdiction of the Customary Court, Ibiasoegbe to order the sale of the land in dispute as belated, this was never the law. He placed heavy reliance on the following cases MACFOY v. U. A. C. LTD (1962) AC 152; ODEKILEKUN v. HASSAN (1997) 12 NWLR (PART 531) PAGE 56 AT 75 PARAGRAPH 1-B.
Learned counsel to the Appellant further contended that even through the Respondent withheld the purported order of the Ibiasoegbe Customary Court upon which the land in dispute was purportedly sold to him by public auction, the Ibiasoegbe Customary Court did not have jurisdiction to make the alleged order, and the alleged public auction was void and did not transfer any title to the land in dispute to the Respondent. This, the order was neither valid nor subsisting nor the purported public auction.
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant.
ISSUE NUMBER: THREE
Learned counsel to the Appellant contended that the Respondent did not join issues with the Appellant on the original ownership of the land in dispute and the mind of the trial Court was beclouded by the effect of the purported public auction to the Respondent based on the alleged order of the Ibiasoegbe Customary Court, and the effect of the subsequent issuance of the statutory certificate of occupancy to the Respondent.
He further contended that the failure to produce the order of the Customary Court Ibiasoegbe upon which the alleged public auction to the Respondent was based, was fatal to the case of the Respondent as the trial Court was only left to speculate thereon and it was also shown that, were the said order to be produced, it was also void as one made without jurisdiction and that effectively knocked out the substratum of the Respondent’s case.
Learned counsel to the Appellant finally submitted that the issuance or production of a certificate of occupancy did not ipso facto defeat or extinguish the title of the original owner of a parcel of land and such certificate merely raised a presumption of ownership that was rebuttable it was proved in evidence that another person other than the grantee of the certificate of occupancy had a better title. He relied on the case of OLOHUNDE v. ADEYOJU (2000) 10 NWLR (PART 676) PAGE 562 AT PAGE 5688 PARAGRAPH A-D.
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant and allow the instant appeal.
RESPONDENT’S BRIEF OF ARGUMENT
The Respondent’s Brief of Argument was filed on 30/11/2017. It was settled by his counsel ANTHONY UCHE MBEREKPE ESQ.
Learned counsel to the Respondent adopted two of the Appellant’s counsel issues for determination, to wit:
1. Whether the learned trial Judge was right when he held that the Appellant did not file a reply to the Respondent statement of defence to counter the averments of public auction alleged in paragraphs 9, 10, 11, 12, 13, 14 and 15 of the amended statement of defence? (Distilled from ground 6 of the ground of appeal)
2. Whether the learned trial Judge was right in holding that the purported sale of the land in dispute on the alleged order of the Customary court Ibiasegbe was valid and subsisting (Distilled from grounds 2, 3, and 4 of the grounds of appeal).
ISSUE NUMBER: ONE
Whether the learned trial Judge was right when he held that the Appellant did not file a reply to the Respondent’s statement of defence to counter the averment of public auction alleged in paragraphs 9, 10, 11, 12, 13, 14 and 15 of the amended statement of defence? (Distilled from ground 6 of the grounds of appeal)
Learned counsel to the Respondent submitted that the law is clear that a reply was the Plaintiff’s answer or response to any issue raised by the Defendant in his defence and which the Plaintiff sought to challenge, deny, admit or object to either on the ground of law or a misstatement of the cause of action and it was not permissible in a reply to the defence to raise a new cause of action not set out in the suit of summons and that for a Plaintiff must not in his reply make any allegation of fact or raise any ground of claim different from what was contained in his statement of claim.
He relied on the case of OSHODI v. EYIFUNMI (2000) FWLR (PT. 8) p. 1271.
Learned counsel to the Respondent further contended that even if the Appellant filed a reply to the allegation raised in amended statement of defence with regard to the public auction sale, the said reply was void of any challenge to the material allegation raised in the amended statement of defence as it was a general traverse and not specific traverse. He relied on the cases of NIKO ENGINEERING LTD v. AKINSINA (2005) ALL FWLR (PT. 284) P. 292; NWADIKE v. IBEKWE (1987) 4 NWLR (PT. 68) P. 718; EZEOKAFOR v. UBA (1975) 5 UNIVERSITY OF IFE LAW REPORT PT. 2, P. 163.
Learned counsel to the Respondent urged this Court to resolve this issue in favour of the Respondent.
ISSUE NUMBER: TWO
Whether the learned trial Judge was right in holding that the purported sale of the land in dispute on the alleged order of the Customary Court Ibiasoegbe was valid and subsisting? (Distilled from ground 2, 3 and 4 of the grounds of appeal)
Learned counsel to the Respondent submitted that it was clear the Appellant did not challenge the public auction sale over the land in dispute and it was trite that Courts of law decided cases placed before them and that an attempt to go beyond such was making the Court to speculate which was a forbidden area of the law.
He contended further that the Respondent gave the Appellant’s father enough notice of the particulars of the public auction sale of the land in dispute by Exhibit E, a letter written by the Respondent’s solicitor warming the Appellant’s father of trespass and the Respondent reiterated that in his statement of defence that he bought the land in public auction sale conducted by the Sheriff of the Customary Court, Ibiasoegbe and this the Appellant ignored.
Learned counsel to the Respondent contended that there was a presumption of validity of a public auction sale that a purchaser took good and valid title and that the Respondent was only a bonafide purchaser of value without notice and that by EXHIBITS C, D, E, G AND H tendered by the Respondent in the said suit raised a prima facie proof of the public auction sale. He relied on the case of J. O. OSIDELE & ORS v. MOSES SOKUNBI (2012) ALL FWLR (PT. 645) AT PAGE 198.
Learned counsel to the Respondent finally submitted that there was no evidence of fraud or collusion proved against the Respondent and there was no feature that made the sale invalid. He relied on the cases of ABC v. IHEKWOABA (2003) FWLR (PT. 194) PASE 555, OKONKWO v. CCB (NIG) LTD (2003) FWLR (PT. 154) P. 457.
Learned counsel to the Respondent urged this Court to resolve this issue in favour of the Respondent and dismiss this instant appeal for lacking merit.
I have carefully considered the submission of learned counsel as per their respective briefs of argument.
In determining this appeal I shall rely on the three issues formulated by Appellants counsel which I consider apt and wide enough for its just determination.
ISSUE NUMBER: ONE
Whether the learned trial Judge was right in holding that the purported sale of the land in dispute on the alleged order of the Customary Court Ibiasoegbe was valid and subsisting.
Learned Appellants counsel posited that the order of Customary Court Ibiasoegbe attaching the land in dispute ought to have been produced in Court. He stated that the purported order of Court upon which the land in dispute was auctioned was pleaded at paragraphs 10 and 11 of the Amended Statement of Defence and yet not tendered in evidence at the lower Court. He contended that the Appellant was not a party to the suit at the Customary Court.
In further argument he asserted that the Customary Court lacked jurisdiction to attach a piece of land which was subject of statutory right of occupancy.
The Respondent on the other hand argued that there was a presumption of validity of a public auction and that the Appellant ought to have brought an action challenging the validity of the public auction sale.
1. In resolving this issue, it should be noted that land subject-matter of the suit at the lower Court is situated at Stadium Road Okwudo Mgbidi in Oru West Local Government Area
2. As a result of the public auction the statutory certificate of occupancy No. 42 page 42 Volume 339 was issued in favour of the Defendant Nze James Chukwuemeka Okike (see Exhibit G. on 31-33 of the record of appeal).
3. The Customary Court that delivered the judgment was Customary Court, Ibiasoegbe.
4. Customary Court are inferior Courts. The jurisdiction of an inferior Court is in law not presumed but must be expressly provided. Its jurisdiction depends on statute which the party asserting its jurisdiction must prove. See ACHIAKPA & ANOR v. NDUKA & ORS (2001) 14 NWLR PT. 734 p. 623; AKROBOTU v. NORMESHIE 14 WACA 290.
I have carefully gone through the provision of Customary Courts Amendment Edict 1994 and the previous amended and 1985 of 1984, I am convinced the Customary Court Ibiasoegbe has territorial jurisdiction over Okwudo Mgbidi.
The next question is whether land at Okwudo Mgbidi is subject of Customary Right of occupancy or statutory right of occupancy. It is trite that a customary Court lacks jurisdiction over land subject of statutory right of occupancy. See JOV v. DOM (1999) 9 NWLR PT. 620 p. 538; OGIGIE &ORS v. OBIYAN (1997) 10 NWLR PT. 524 p. 179.
What has provoked this point is that the State Governor of Imo State granted the Respondent statutory right certificate of occupancy in respect of the land in dispute at Okwudo-Mgbidi. It is therefore being contended that in view of this the Customary Court, Ibiasoegbe lacked jurisdiction to have attached the said land.
This argument in my respectful view cannot be taken far. A state Governor has the power to grant statutory right of occupancy even in respect of land in a rural area. See Section 5(1)(a) of Land Use Act. And OLAGUNJU v. ADESOYE & ORS (2009) 2 FWLR PART 475 p. 4883.
The Appellant has failed prove that the land in Okwudo Mgbidi is not in a rural/non-urban area which is subject of customary right of occupancy. It is a matter of evidence. See OKU v. NWOBIA (2000) FWLR PT. 6 p. 952. He failed to adduce evidence to the effect. I resolve this issue against the Appellant in the circumstance.
ISSUE NUMBER: TWO
Whether the learned trial Judge was right when he held that the Appellant’s right over the land in dispute was defeated by the statutory right of occupancy granted to the Respondent over the same land.
The grant of a statutory right of occupancy over a piece of land does not extinguish pre-existing vested rights or interests in the said land unless the vested right is revoked. See DANTSOHO v. MOHAMMED (2003) 6 NWLR PART 817 p. 457; ILONA v. IDAKWO & ANOR (2003) 11 NWLR (PT 830) 53.
However a sale of land or immovable property by Sheriff when not challenged within a relevant time to set it aside and a certificate of title is issued becomes absolute. See USENFOWOKAN v. IDOWU & ANOR (1975) LPELR-3426; (1975) 4 SC. REPRINT 136 FIRST BANK OF NIGERIA PLC v. FASHAR (2000) 6 NWLR (PT. 662) 573, KACHALLA v. BANKI (2001) 10 NWLR (PT. 721) 442.
There is evidence on record that the Appellant and his father were present during the auction of the said land by the Sheriff and that they did not raise any objection. (See paragraph 14 of the witness deposition of Defendant/Respondent). This was not denied by the Claimant. It needs be noted that the action challenging the auction of the land in dispute was instituted on 28/1/2010 about 10 years after the auction. The Defendant/Respondent purchased the piece of land by auction on 28/1/2000.
It seems to me too late in the day to challenge the sale by auction by Sheriff ten years after the said auction. I resolve this issue against the Appellant.
I am more fortified in this view when one refers to the provision of Order XIV Rules 1-4 of the Customary Court Rules of Imo State 1989 which reads as follows:-
1. Any person who claims that any property, whether movable or immovable, which has been attached is liable to be sold on execution of a judgment or order against the judgment debtor, may apply to the Court which issues the writ of attachment and sale for the sale of a summons calling upon the judgment creditors to appear before the Court on a date and at an hour specified in the summons to show cause why the property should not be released from the attachment.
2. (1) When the claim is investigated by the Court, it shall have the same powers as if the Claimant had been originally a party to the suit:
Provided that if it appears to the Court that owing to the value of the property attached, it would not have been within its jurisdiction to determine the claim in an original suit, it shall-
(a) Order the Claimant to institute proceedings in a Court of competent jurisdiction within thirty days for the purpose of establishing his claim; and
(b) Stay the proceedings on the writ of attachment and sale until the issue between the judgment creditor and the Claimant has been determined by a Court of competent jurisdiction.
(2) If it appears that the property attached is not liable to be sold in execution of the judgment or order, the Court shall make an order releasing the property from attachment.
(3) If it appears that the property attached is the property of the judgment debtor, the Court shall disallow the claim and dismiss the summons.
3. (1) A claim must be made to the Court at the earliest opportunity and if the attached property has been advertised for sale, the sale shall be postponed until the claim has been investigated.
(2) When it appears to the Court that there has been deliberate delay, or when the sale has taken place before the claim was made, the interpleader proceedings shall be dismissed.
4. (1) Every application by a Claimant for an interpleader summons shall be supported by a declaration by the Claimant, which may be on oath at the discretion of the Court, specifying the property of the Claimant and setting out the grounds upon which it is claimed.
By the provision of Order XIV Rule 3(2) of the said Rules when the sale of the immovable property is completed even an interpleader proceedings shall be dismissed.
Ordinarily, the Claimant should have timeously instituted interpleader proceedings under Order XIV of the Rules. This he has failed to do. To add to it, the sale of the property was completed 10 years before the action of the Claimant.
ISSUE NUMBER: THREE
Whether the learned trial Judge was right when he held that the Appellant did not file a Reply to the Respondent’s Statement of Defence to counter the averment of public auction alleged in paragraph 9, 10, 11, 12, 13, 14 and 15 of the Statement of Defendant.
Clearly from the record of appeal, it can be seen that the Claimant filed a Reply to the Respondents Statement of Defence (see pages 15-16 of record of appeal). However an effective joinder of issue is not achieved by general denial. See EKE v. OKWARANYIA & ORS (2001) 12 NWLR PT. 726 p. 181, OKONKWO v. C.C.B. (NIG) PLC (2003) 8 NWLR (PT 822) 347.
The serious averment in the statement of Defence to the effect that the Claimant and his father were present at the time of the auction and that they did not raise any objection (see paragraph 16 of the statement of Defence) were merely generally denied under paragraph 1 of the Reply to the statement of Defence.
This is not effective denial in my respectful view. This is why I hold that inspite of the error of his Lordship on the filing of the reply to the statement of Defence by Claimant the rightness of the decision of the learned trial Judge is not affected.
I also resolve this issue against the Appellant.
This appeal lacks merit. It is accordingly dismissed. Costs of N30,000.00 is awarded in favour of the Respondent.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: My learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA, gave me the opportunity and made available a copy of his lead judgment which has just been delivered. Let me state and unhesitatingly too, that I agree with him with regard to his reasoning and conclusion. I also dismiss the appeal which is devoid of any vestige of merit. I also abide by the order made in the said lead judgment of my Learned brother, Awotoye, JCA, on the award of costs.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, T.O. AWOTOYE JCA, in the lead judgment, just delivered. I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances:
DECLAN OBIOMA MADU, ESQ.For Appellant(s)
A.U. MBEREKPE, ESQ.For Respondent(s)
