UKPAI KALU OLUA v. ARUA KALU EMETU & ORS
(2019)LCN/12598(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/OW/351/2017
RATIO
JUDGEMENT: PRINCIPLES GUIDING DECLARATORY RELIEF
“On principles governing the grant of declaratory reliefs, it is that declaratory reliefs are granted at the discretion of the Court. All relevant facts that could affect the withholding of the discretion of the Court to make the declaration must be properly canvassed and placed before the Court for consideration. When a litigant claims declaratory reliefs, he does no more than to invite the Court to declare what the law is on the issue. Whatever the Court of law may say in acceding to that invitation is no executory, indeed the grant of such a relief is discretionary, therefore a Plaintiff who intends to have an enforceable legal right from a declaratory judgment must in addition, seek injunctive order or damages. DR. TAIWO OLORUNTOBA OJU & ORS V. PROF. P.A. DOPAMU & ORS (2008) 7 NWLR PT. 1085 1 @ 35. In an action for declaratory reliefs, the Claimant must succeed on the strength of his case. EMENIKE v. PDP (2012) ALL FWLR PR. 640 @ P. 1281.”PER RITA NOSAKHARE PEMU, J.C.A.
COURT AND PROCEDURE: CONTENTION OF FACT IN ISSUE
“That when a fact is in issue, or in contention between the parties, the truth of such facts can be elicited during cross examination. BIDA v. ABUBAKAR (2011) 5 NWLR (PT. 1239) 130 at 132; ISHENO v. JULIUS BERGER (NIG) PLC. (2009) 6 NWLR (PT. 1084) 582.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
UKPAI KALU OLUA
(For himself and as representing Ndifuaku paternal family of Ebem Ohafia except the 2nd-4th Defendants/Respondents) Appellant(s)
AND
1. ARUA KALU EMETU
2. IDIKA KALU OLUA
3. KALU ONWUKA OLUA
4. IDIKA OLUA KALU Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Abia State, holden at Ohafia, delivered on the 31st of May 2017 in suit No. HUH/37/2014, in which the Court below granted the reliefs of the 1st Respondent (as Claimant).
SYNOPSIS OF FACTS
Appellant and the 2nd & 4th Respondents on record are members of the Ndifuaku family of Ebem Ohafia in Ohafia Local Government Area of Abia State.
Without the consent of the principal members and head of the family some of the junior members of the family sold the family land to the 1st Respondent. When he sought to take possession of the land, they placed the traditional omu sign on the land immediately.
As a result of this, the 1st Respondent instituted the action, the subject matter of this appeal at the Court below seeking inter alia, a declaration of title to the land.
The Appellant is dissatisfied with the judgment of the Court below, granting the 1st Respondents reliefs.
Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal encapsulating three (3)
Grounds of Appeal – Pages 129-134 of the Record of Appeal.
The Appellant filed his brief of Argument on the 8th of May 2018, but same was deemed filed on the 14th of May 2018. It is settled by Uche Igwe Esq.
The Respondents’ brief of argument was filed on the 12th of October 2018. It was deemed filed on the 19th of November 2018 and settled by Udo Uduma Esq.
The Appellant filed a reply brief on the 30th of October 2018, but same was deemed filed on the 19th of November 2018.
The issues for determination distilled by the Appellant from the Grounds of Appeal are two. They are:
1. WHETHER THE CLAIMANT PROVED HIS CASE ON THE STRENGTH OF HIS OWN CASE TO WARRANT THE GRANT OF HIS RELIEFS SOUGHT.
2. WHETHER THE CLAIMANT PROVED THAT THE NDI IFUAKU FAMILY LAND IN DISPUTE WAS TRANSFERRED TO HIM BY THE FAMILY HEAD AND PRINCIPAL MEMBERS OF THE NDI IFUAKU FAMILY TO WARRANT HIS CLAIMS IN THE SUIT.
The Respondents distilled two (2) issues for determination from the Grounds of Appeal. They are
1. WHETHER THE CLAIMANT PROVED HIS CASE TO WARRANT THE GRANT OF THE RELIEFS SOUGHT?
2. WHETHER THE CLAIMANT PROVED THAT THE LAND IN DISPUTE WAS VALIDLY TRANSFERRED TO HIM WITH THE CONSENT OF THE HEAD AND PRINCIPAL MEMBERS OF NDI IFUAKU PATERNAL FAMILY?
The issues distilled by the Respondents are in my opinion an adoption of the issues distilled by the Appellant. I shall therefore determine this appeal based on the Appellant’s issues for determination.
ISSUE NO 1.
The Appellant submits that in an action for declaratory reliefs, the Claimant ought to succeed on the strength of his own case and not on the weakness of the Defendants’ case – WOLUCHEM v. GUDI (1981) 5 SC. 291.
That in the instant case, the 1st Respondent herein (as Claimant in the Court below) had in proof of his case, testified himself and through witnesses that he purchased the land in dispute from the Ndi Ifuaku paternal family of the Defendants, tendering a power of attorney in evidence to that effect.
That it was Olua Kalu Olua jnr. That was the head of family at the time of the land transaction.
Submits that when the Court below held that Olua Kalu Olua Senior gave authority to Olua Kalu Olua jnr to act for him as the family head, there was no pleading and evidence to buttress that assertion. That even if there was evidence, it supported no pleading. – citing SERIKI V. ADURALERE (2012) ALL FWLR (PT. 626) PAGE 549 ? PARA G-H.
He submits that the Court below was therefore wrong to believe in, and rely on evidence which was based on unpleaded facts, thereby granting the Claimants reliefs.
ISSUE NO 2.
The Appellant submits that title to land may be proved by any of the five ways known to law – IDUNDUN v. OKUMAGBA (1976) 9-10 S.C. 227.
Submits that the law is trite that a Claimant may rely on any one of the five ways to prove title to a land in dispute and in issue. That the 1st Respondent (as Claimant in the Court below) relied on the way of proof by production of document of title. But that mere production of title document does not entitle a party to the declaration over the property in dispute. The document has to undergo specified judicial and legal tests before it is admitted in evidence as proof of title to the land in issue.
He submits that before the title document is admitted as sufficient proof of ownership, the Court must satisfy itself that:-
a. The document is genuine or valid.
b. It has been duly executed, stamped and registered.
c. The Grantor has the authority and capacity to make the grant.
d. The Grantor has in fact what he proposes to grant and.
e. That the grant has the effect claimed by the holder.
Citing ROMAINE v. ROMAINE (1992) 4 NWLR (PT. 238) 650; KYARI v. ALKALI (2001) FWLR (PT. 60) 1481; DABO V. ABDULLAHI (2005) ALL FWLR (PT. 255) 1039.
Submits that the 1st Respondent (as Claimant in the Court below) did not prove that the land in dispute was transferred to him by the family head and principal members of the Ndi Ifuaku family, to warrant the grant of his reliefs at the Court below. That the 1st Respondent has not been able to prove that this has been done.
Submits that the family land in dispute was sold by persons who were not the family head and/or senior and principal members of the family.
That the Claimant under cross-examination did say that:-
‘It is the performance of the customary rites that shows that land has been sold. It is true it is so the oldest man that it is to be performed.’
But that the Claimant (1st Respondent) did not prove that this has been done.
Urges this Honourable Court to hold that the persons who sold the land in dispute were not the right persons to so do, and to set aside the judgment of the Court below and allow the appeal.
RESOLUTION OF ISSUES
I shall consider both Issues 1 and 2 together.
ISSUES NOS’ 1 AND 2
On principles governing the grant of declaratory reliefs, it is that declaratory reliefs are granted at the discretion of the Court. All relevant facts that could affect the withholding of the discretion of the Court to make the declaration must be properly canvassed and placed before the Court for consideration.
When a litigant claims declaratory reliefs, he does no more than to invite the Court to declare what the law is on the issue.
Whatever the Court of law may say in acceding to that invitation is no executory, indeed the grant of such a relief is discretionary, therefore a Plaintiff who intends to have an enforceable legal right from a declaratory judgment must in addition, seek injunctive order or damages. DR. TAIWO OLORUNTOBA OJU & ORS V. PROF. P.A. DOPAMU & ORS (2008) 7 NWLR PT. 1085 1 @ 35.
In an action for declaratory reliefs, the Claimant must succeed on the strength of his case. EMENIKE v. PDP (2012) ALL FWLR PR. 640 @ P. 1281.
The suit, the subject matter of this Appeal was instituted by writ of summons dated 3rd of October 2014 and filed on the 9th of October 2014. ? Pages 4-5 of the Record of Appeal. In the statement of claim – paragraph 22 thereof, the Claimant claim against the Defendants jointly and severally the following inter alia:-
1. A DECLARATION that the Claimant is entitled to the grant of statutory Right of Occupancy to the piece or parcel of land known as and called ABUOKAFIA NDI IFUAKU LAND measuring an area of approximately 24394.640 square metres which is more particularly described and delineated in perimeter survey plan No. SKS/ABCA/007/2007 made by S. K. Uma Registered surveyor and marked by survey No SC/ABC 1174, SC/ABC 1175 SC/ABC 1176, SC/ABC 1177 and SC/ABC 1178 being and situate in Ebem Ohafia in Ohafia Local Government Area of Abia State of Nigeria within the jurisdiction of this Honourable Court.
2. AN ORDER of injunction …
3. The sum of FIFTY MILLION NAIRA (N50M) being damages for acts of trespass – Pages 11 – 12 of the Record of Appeal.
In paragraph 6 of the statement of claim, the Claimant (now 1st Respondent) pleaded thus:-
PARAGRAPH 6.
‘The Defendants family was represented in the land purchase transaction by the then head and leader of the family, Chief Olua Kalu Olua (jnr) and some principal members of the family in accordance with Ebem Ohafia native law and custom.’ Page 8 of the Record of Appeal.
In paragraph 2 of the Claimants reply to the statement of defence, he reiterated this by averring thus:
PARAGRAPH 2 (VI)
‘The Claimant maintains that Chief Olua Kalu Olua was the head of the family at the time of the land sale transaction and that he effected the sale with the consent and to the knowledge of principal members of the family’. Page 82 of the Record of Appeal.
PW1 ‘Okwara Igu’ is a poster and land agent. He does not know Chief Olua Senior alias Teacher Sunday. He also does not know of Chief Olua Kalu Olua Junior. He testified that whether the eldest man in the family must be involved in the sale of family land before it can be valid defends. He has seen several land sold without the family head but with the consent of two or more members of the family.
PW2 – ARUA KALU EMETU, a business man testified that it is not entirely so that under Ohafia custom the younger members of the family cannot sell land without the consent of the family head. That Chief Olua Kalu Olua senior was not the head of family at the time of the transaction and had not been.
PW3 – KALU EKE testified that he knows Ohafia custom. Ohafia land is not sold according to age, as any important person in the family can sell family land.
It is the argument of the Appellant that there was no pleading and evidence to buttress the assertion that Olua Kalu Olua senior gave authority to Olua Kalu Olua junior to act for him as the family head. That even if there was pleading, there was no evidence in support thereof.
In paragraphs 5, 6 and 7 of the statement of claim, the Claimant had this to say:-
PARAGRAPH 5
The aforesaid land in dispute belongs to the Claimant who lawfully and validly purchased same in 2007 from the Defendants’ Ndia Ifuaku paternal family who were the original owners of the land under the Ebem Ohafia native law and custom. The land purchase transaction was to the knowledge of all the Defendants and other members of Ebem Ohafia community.
PARAGRAPH 6
The Defendants’ family was represented in the land purchase transaction by the then head and leader of the family, Chief Olua Kalu Olua and some principal members of the family in accordance with the Ebem Ohafia native law and custom.
Paragraph 7
‘The Claimant not only paid the agreed purchase price of six hundred and fifty thousand naira (N650,000.00) but also performed the requisite customary rites to the family of the Defendants in respect of the land. The land purchase transaction was reduced to writing in a document headed Power of Attorney which is hereby pleaded as a document evidencing payment of money in land purchase transaction.’
The 1st Respondent’s case is that he bought the land in dispute from the Respondents but was not let into possession. On their part, the Appellant and 2nd & 4th Respondents are saying that who sold the land here was not the right persons to sell. They contend that those who witnessed the agreement were not the principal members of the family.
But the present 1st and 2nd Defendants/Respondents were the signatories on the Agreement on behalf of the Respondents’ family.
The 1st Respondent testifying as DW2, agreed under cross-examination that he and the other Respondents are principal members of the Respondents’ family.
Exhibit ‘H’ was signed by Chief Olua Kalu Olua as head of the family. The Respondents are contending that he was only acting on behalf of his elder brother who was the right head of the family.
The agreement then was not a case of family transaction over land without the head of the family, which would have rendered same null and void ab initio.
Chief Olua Kalu Olua, having been agreed by both parties, to have signed the agreement in his capacity as the head of the family, the agreement stands valid. It is however voidable if the principal members of the family were not involved.
Moreso, the 1st Respondent led evidence to show that the Appellant and Respondents’ family have sold other lands, and those who signed his document are the same persons who signed the other documents. For example the sale to one Onwuka Nwoke which shares boundary with the land in dispute, and was part of Abuokafia Ndia Ifuaku land of the Defendants. Interestingly as observed by the Court below, none of those sales have been shown to be by the wrong members of the Defendants/Respondents family.
Why should the 2nd & 4th and Appellant do a U-turn to say that their people are no longer the right members of the family to execute land agreements on behalf of the family?
I am of the view that the 1st Respondent has proved his case, as those who sold land to him were the rightful persons to so do. The Appellant had argued that the Court below based its decision on unpleaded facts. That in considering the document Exhibit ‘L’ showing that at the time of the transaction in 2007, Olua Kalu Olua (Senior) Aka Teacher Sunday Olua was the head of the family of the Ifuaku paternal family, turned round to hold that he Olua Kalu Olua (Senior) gave authority to Olua Kalu Olua junior to act for him as the family head when this was not pleaded. That there was no amendment by the 1st Respondent (Claimant) to incorporate this fact and issue as part of his pleadings and case.
The Appellant reiterated the fact that the evidence that the senior Olua Kalu Olua gave authority to the junior Olua Kalu Olua to act as the family head, was not pleaded by the 1st Respondent (Claimant in the Court below).
I am of the view, however that the 1st Respondent had proved that the land in dispute was transferred to him by the family head and principal members of the family of Ndi Ifuaku.
The fulcrum of this Appeal is whether the land, the subject matter of this appeal was validly sold to the Claimant/1st Respondent.
Chief Olua Kalu Olua had been selling Ndi Ifuaku family lands with Ukpai Kalu Olua and Idika Kalu Olua, as co-signatories/vendors for and on behalf of the family.
In OLASUPO TIMOTHY v. JOEL FABUSUYI (2012) 1 NWLR (PT. 1336) 379 at 384, this Court held inter alia thus to be valid, what is important is that the head of family should concur to the sale and not that he must sign the document of sale?. DW1 and DW2 testified that Mr. Olua Kalu Olua Aka Teacher Sunday, it was who lived in Aba, that authorized Chief Olua Kalu (the sand execrator) to act for him as head of Ndi Ifuaku family.
Exhibit ‘C’ seems to me to confirm the contention of the 1st Respondent that Ndi Ifuaku lands were sold by the three of Chief Olua Kalu Olau, Ukpai Kalu Olau and Idika Kalu Olua.
To allow the Respondents family to resile from such representation would occasion injustice.
Exhibit ‘H’ states clearly that the persons who represented the family in that transaction did so as head and principal members of the family. Page 99 of the Record of Appeal.
On the issue of non-pleading of the fact that Olua Kalu Olua senior gave authority to Olua Kalu Olua (the Claimants’ render) to act as the family head, and that evidence led on that point goes to no issue, I want to agree with the argument of the Respondents in paragraph 7.8 of their brief of Argument. To the effect that a fact elicited in the course of hearing is a fact that is relevant to the fact in issue. That when a fact is in issue, or in contention between the parties, the truth of such facts can be elicited during cross examination. BIDA v. ABUBAKAR (2011) 5 NWLR (PT. 1239) 130 at 132; ISHENO v. JULIUS BERGER (NIG) PLC. (2009) 6 NWLR (PT. 1084) 582.
The Court below was right in acting on the evidence elicited under cross-examination in holding that the admissions made by DW1 and DW2 on the fact that the Claimants’ vendor was duly authorized to act as head of the family knocked off the bottom of the Defendants case. I do not think that the Claimant departed from his pleadings. The evidence which was gotten from cross-examination to the effect that the Claimant?s vendor was duly held out and authorized to act as head of Ndi Ifuaku family was only reinforced.
In all, I am of the view that the Appeal fails and same is hereby dismissed.
The judgment of the High Court of Abia State holden at Ohafia in suit No. HOW/37/2014 is hereby affirmed.
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 of my lord, RITA NOSAKHARE PEMU, J.C.A., stating that the appeal lacks merit. I agree with her reasoning and conclusions. I too dismiss the appeal and affirm the judgment of the Lower Court.
Appearances:
Uche Igwe, Esq.For Appellant(s)
Udo Uduma, Esq.For Respondent(s)
