MRS. JANET UWANDU v. LAWRENCE CHINAGOROM & ORS
(2019)LCN/12809(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/OW/370/2012
RATIO
ACTION: DECLARATORY RELIEF
“Whatever the Court of law may say in according to that invitation is not 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 or order in his favour, 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 paragraph a – b. Principles governing grant of declaratory reliefs are that ‘It is true that declaratory reliefs are granted at the discretion of the Court. But that discretion must be exercised judicially’ BARCLAYS BANK OF NIGERIA LTD v. ASHIRU (1978) 6 ? 7 SC 99. This implies that all relevant facts that could affect the withholding of the discretion of the Court to make the declaration, are properly canvassed and placed before the Court for consideration.” PER RITA NOSAKHARE PEMU, J.C.A.
ACTION: DOCTRINE OF ESTOPPEL
“The doctrine of Estoppel connotes that where a man by word or conduct willfully makes a representation of a state of facts to another, and thereby induced that other to believe that the state of things were as reputed by that person and that other took him by his words, and acted upon that representation, that person who made the representation either by himself or his representative in interest, cannot now turn around to say, or behave as if the state of things were not as he represented them, he is ESTOPPED from asserting the contrary.” PER RITA NOSAKHARE PEMU, J.C.A.
ACTION: WHO BEARS DECLARATORY BURDEN
“In EMENIKE v. PDP & ORS (2012) LPELR 7802, the law places a legal burden on a person seeking declaratory reliefs to establish his claim. Declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. Any injunctive relief sought is only consequential, and can only be wielded if the Claimant/Plaintiff establishes his case to attract the exercise of the Courts discretion in his favour.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU 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
MRS. JANET UWANDU – Appellant(s)
AND
1. LAWRENCE CHINAGOROM
2. CHIEF GEORGE UWANDU
3. THEODORE UWAIBE
4. LUKE OSUJI
5. IGNATIUS CHINAGOROM
6. PAUL OFOEGBU
7. UZODINMA UWANDU – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.:
This is an appeal against the judgment of the High Court 5 Owerri in Suit No. HOW/62/1998, delivered on the 28th of May 2012. In the judgment the Court below dismissed the Appellant?s (Claimant in the Court below) claim.
FACTS OF THE CASE
According to the Appellant, the Appellant got married to the deceased, late Morgan O. Uwandu from Idem Ogwa in Mbaitoli L.G.A. in 1955. They were blessed with children. The deceased later got married to Mrs. Christiana Uwandu in 1971 and then Mrs. Victoria Uwandu in 1975. All marriages were according to the Idem Ogwa native law and custom.
The Appellant jointly built the two storey buildings situate at No 10 Rotimi Street, Owerri, the property in dispute which they used as Victory Palace Hotel, Owerri, before the other two wives were married.
The Appellant lived in the two storey building with her children after her husband moved over to Umuahia.
After the death of the Appellant’s husband in 1993, the Appellant later built a boys’ quarters at the back of the two storey building in 1994.
After the death of the deceased, one of his wives – Christiana Uwandu and two other persons sued the Appellant and her son, Prince Obioha Uwandu (CW2) at High Court Owerri in Suit No HOW/143/1995, over the administration of the estate of late Prince Morgan O. Uwandu, and there were attempts to settle the matter out of Court.
The Appellant did not consent, nor participate in the out of Court settlement or arbitration, but protested over the inclusion of No 10 Rotimi Street Owerri to the estate of the deceased. This is because No 10 Rotimi Street Owerri is the joint property of the Appellant and her late husband.
That according to the Idem Ogwa custom, the ‘Ishi Obi’ or property owned jointly by a man and his wife is not shared as part of the estate of the man, but it is left for the woman who contributed to the development of the property and her own children.
In spite of this, the arbitration still gave the property in dispute to the 7th Respondent – Uzodinma Uwandu.
In 1998, Uzodinma Uwandu came to the Appellant and told her to pack out of the property at No 10 Rotimi Street, Owerri, claiming that it was his share of her late husband’s estate. This culminated in the Suit the subject matter of this appeal being instituted in the Court below.
The Appellant, having had her suit dismissed, appealed to this Honourable Court vide Notice of Appeal filed on the 17th of July 2012. ‘ Pages 435 – 438 (subsequently amended vide Amended Notice of Appeal) filed on the 27th of January 2017 encapsulating five Grounds of Appeal.
The Appellant filed her amended brief of argument on the 16th of January 2018. Same is settled by CHIEF I. O. IGGBOANUGO (KSM.) Same was however deemed filed on the 17th of January 2018.
The Respondents filed their brief of argument on the 6th of February 2018. It is settled by S. A. NJOKU ESQ.
The Appellant distilled four (4) issues for determination from the Grounds of Appeal. They are:-
1. WHETHER THE TWO STOREY BUILDING ON NO. 10 ROTIMI STREET, OWERRI WAS BUILT JOINTLY BY THE APPELLANT AND HER LATE HUSBAND AND WHETHER THE BUNGALOW WAS BUILT BY THE APPELLANT.
2. WHETHER THE LATIN MAXIM QUID QUIT PLANTATUR SOLO SOLO CEDIT IS APPLICABLE TO THIS CASE IN VIEW OF THE FACT THAT THE CLAIM OF THE APPELLANT IS THAT SHE AND HER LATE HUSBAND JOINTLY BUILT THE SUBJECT PROPERTY.
3. WHETHER THE ARBITRATION DECISION EXHIBIT ?O? IN THE CIRCUMSTANCES OF THIS CASE BINDS THE APPELLANT TO OPERATE AS AN ESTOPPEL.
4. WHETHER THE TRIAL COURT WAS RIGHT WHEN HE FAILED TO GRANT THE BOY?S QUARTERS (BUNGALOW) AND THE TWO STOREY BUILDING AT NO 10 ROTIMI STREET OWERRI, TO THE APPELLANT. OR WHETHER THE CLAIMANT/APPELLANT PROVED HER CASE.
The Respondents at page 6 paragraph 3.0.1 of their brief of argument adopt the four issues formulated by the Appellant in her amended brief of argument.
However, the Respondent contends that the first issue for determination does not arise from the case as presented by the parties at the trial. That the case of the Appellant at the lower Court was founded on ‘JOINT OWNERSHIP’ of the property between her and the 7th Respondent’s father. Not ‘JOINT BUILDING’ thereof.
The Appellant filed no reply brief.
ISSUE NO 1
The Appellant contends that as at the time the property at NO 10 Rotimi Street, Owerri was purchased in 1964, she was the only wife of the deceased. That soon after the property was purchased the development was commenced by the Appellant and her late husband. That as at this time, the deceased had not married the other two wives, neither was there any contemplation of marrying them. The 7th Respondent was not been then.
That her late husband and herself contributed to build the two storey building. After erecting the building, her late husband and herself used it to establish Victory Palace Hotel. Later when her late husband moved out of Owerri to Umuahia, she lived in the two storey building with her children.
She submits that this evidence remain unchallenged.
Submits that as at the time they developed the two storey building, the marriage between the Appellant and her husband was a monogamous marriage under customary law.
Submits that as at that time, the Appellant was the only wife of the late Prince Morgan O. Uwandu. Therefore she needed no document to jointly develop the property with him.
She submits that the evidence adduced by the Appellant that she was a trader and started the building before her husband joined her in building the house was not controverted by the Defendant/Respondent.
Submits that where a wife assisted the husband in developing a property or vice versa (as in this case) the strict rule of documentation or writing does not apply, especially at the period when the Appellant?s husband bought the property. Urges Court to take into account the fact that the Appellant and her husband were not educated. They were therefore not expected to invite a solicitor to prepare a document stating the contribution of each party to a property they are developing, when they usually believe that the property belongs to them and their children.
She submits that she (the Appellant) has been in possession of the property since it was bought and built. No 10 Rotimi Street Owerri was the only known house to her, as she had lived there for more than 45 years.
ISSUE NO 2
It is the Appellant?s contention that in the present case, what is actually in issue is not the ownership or title to No. 10 Rotimi Street, Owerri, but the issue is the gift of No. 10 Rotimi Street, Owerri by the arbitration to DW4 Uzodinma Uwandu, even in the light of the protest by the Appellant over the gift. That all that the Appellant is claiming is a declaration that the property known as No. 10 Rotimi Street, Owerri was jointly owned by the Appellant and her late husband Prince Morgan O. Uwandu of Idem Ogwa. That it was not available to be shared as part of late Prince Morgan Uwandu’s estate.
She submits that in this case, the title to No. 10 Rotimi Street, Owerri as between the Appellant and the 7th Respondent is not in issue.
That the latin maxim quit quid plantatur solo solo cedit will apply where title to land is in dispute to the effect that whatever is attached to the land will automatically belong to the person adjudged to be the owner of the land.
She submits that what is being disputed here is the gift of the property at No. 10 Rotimi Street, Owerri to the 7th Respondent – Uzodinma Uwandu as against the Appellant, whose case was that she jointly developed the two storey building with her husband after her husband bought the property.
That the Court, in applying the latin maxim to this case erroneously gave the property to the 7th Respondent.
She submits that the document of title in favour of the husband of the Appellant was not relevant in this case as the title was never in issue. That the Appellant both in her pleading and evidence never said that her husband bought No. 10 Rotimi Street, Owerri jointly with her. Her case is that she and her husband built the two storey building on No. 10 Rotimi Street, Owerri.
ISSUE NO 3
On the issue of whether the arbitration decision Exhibit ?O? binds the Appellant, to operate as ESTOPPEL, the Appellant submits that her husband?s other wife Christiana Uwandu and two others, sued her and her son before Owerri High Court, in Suit No. HOW/143/95 over the administration of her late husband?s property.
There were attempts to settle the matter out of Court. The Appellant is contending that she was never part of the settlement. She was not part, and she did not know when it was settled. She did not take part in any settlement proceeding. Her son Prince Obioha Uwandu did not represent her during the settlement meetings. She did not prepare any food during the settlement proceeding. She was not present at any purported final settlement meeting. She did not submit nor agree to any arbitration or settlement of that High Court Suit.
Submits that the alleged settlement by the arbitration does not bind the Appellant, especially as she protested in writing as reflected in Exhibit ‘J’
ISSUE NO 4
The Appellant submits that evidence abound that the Appellant built the three bedroom bungalow at No. 10 Rotimi Street, Owerri in 1994 after the death and burial of her husband. That this evidence remains unchallenged. Submits that the Defendants did not challenged the fact that the Appellant built the bungalow. The husband died in 1993, and she built it in 1994. Therefore she built the bungalow without any assistance from anybody including her husband.
Submits that the Appellant was a widow in 1994 when she built the bungalow. At the time she was building the bungalow, all the Defendants and arbitration were around but did nothing to stop her. They stood by and watched while she developed the bungalow only to deny her the use of her sweat. That the Defendants are caught by the doctrine of laches and acquiescence.
She submits that to deny her of the bungalow will amount to injustice.
RESOLUTION OF ISSUES
ISSUE NO 1
The Claimant in the Court below had sought the following reliefs viz:-
a. A declaration that the property known as No. 10 Rotimi Street, Owerri was JOINTLY OWNED by the Plaintiff and her late husband, Prince Morgan Uwandu of Idem Ogwa in Mbaitoli Local Government Area of Imo State.
b. A declaration that the property called No. 10 Rotimi Street, Owerri within jurisdiction of this Honourable Court was not available to be shared as part of late Prince Morgan Uwandu?s estate in accordance with Ogwa native law and custom and
c. An injunction restraining the 19th Defendant from laying or continuing to lay claims to the said property.
It is trite, and indeed an elementary principle of law that 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 according to that invitation is not 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 or order in his favour, 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 paragraph a ? b.
Principles governing grant of declaratory reliefs are that ‘It is true that declaratory reliefs are granted at the discretion of the Court. But that discretion must be exercised judicially’ BARCLAYS BANK OF NIGERIA LTD v. ASHIRU (1978) 6 ? 7 SC 99. This implies that all relevant facts that could affect the withholding of the discretion of the Court to make the declaration, are properly canvassed and placed before the Court for consideration.
The discretion cannot rightly be based on facts or circumstances which have not been submitted by the parties to the Court, but which the Court on its own, has restlessly fathomed out outside the issues, raised by the pleading. UKWU v. OFFORAH (1992) 6 NWLR (PT. 246 PAGE 236. RATIO 4.
It is trite law that a declaratory relief is a discretionary remedy which would be refused where the Plaintiff fails to establish his alleged entitlements to the satisfaction of the Court. OGOLO & ORS v. OGOLO & ORS (2003) LPELR 2309.
It is trite law that the purpose of a declaratory action is essentially to seek an equitable relief in which the Plaintiff/Claimant prays the Court, in the exercise of its discretionary jurisdiction, to pronounce or declare an existing state of affairs in law in his favour, as may be discernible from the averments in the statement of claim. In order to be entitled to a declaration, a person must show the existence of a legal right, subsisting or in future, and that the right is contested. What will entitle a Plaintiff/Claimant to a declaration is a claim which a Court is prepared to recognize and if validly made, it is prepared to give legal consequence to. A.G. CROSS RIVER STATE v. A.G. FEDERATION & ORS (2012) LPELR 9335.
Now the question is, what material has the Appellant placed before the Court below to entitle the judgment delivered to be set aside?
She has said that she jointly owned the property with her late husband. That she jointly built a two storey building with the husband. That under the custom of Idem Ogwa, she wants the Court to declare that the property in issue devolves on her, upon the death of her husband, and to her children upon her death.
It seems to me that the Appellant is claiming ownership of the property. Sadly enough, there is no evidence either in her pleading or her amended statement of claim to support this. There is no viva voce evidence, neither any documentary evidence to support her claim. She called no witness. She tendered no exhibits, no receipts. The Court below was clearly at sea.
Exhibit ‘N’ is a consent judgment regarding the sharing of the property of which the Appellant is privy. She was the 2nd Defendant in that Suit No. HOW/143/95, delivered on the 7th of November 1996.
In EMENIKE v. PDP & ORS (2012) LPELR 7802, the law places a legal burden on a person seeking declaratory reliefs to establish his claim. Declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. Any injunctive relief sought is only consequential, and can only be wielded if the Claimant/Plaintiff establishes his case to attract the exercise of the Courts discretion in his favour.
As earlier observed, I see no reason to disturb the decision of the Court below in its finding that the Appellant failed to establish her claim. According to the Court below:-
The Claimant as found earlier has not adduced any credible evidence or concrete and specific facts with date of her contribution to the contribution of the building on No. 10 Rotimi Street, Owerri? ? Page 47 of the judgment (Page 428 of the Record of Appeal.
I cannot agree more.
According to Exhibits A1 (lease agreement) and B (Deed of conveyance), it is evident (from the pleading and evidence of the parties) that the two storey buildings at No. 10 Rotimi Street, Owerri, was constructed in 1964, after the acquisition of the property by Prince Morgan Uwandu, while the lease agreement dated 4/4/64 and even the Deed of conveyance made subsequently on 10/12/70, was made in the personal names of late Prince Morgan O. Uwandu. In the face of the dearth of evidence, this issue must be answered in negative.
This issue is resolved in favour of the Respondents and against the Appellant accordingly.
ISSUE NO 2
In the judgment of the Court below, the learned trial judge had this to say inter alia.
A careful look at Exhibits A1 and B shows that both the original lease agreement made between the original owners of the land, called No. 10 Rotimi Street, Owerri and the late Prince Morgan O. Uwandu, and the subsequent deed of conveyance of the same property were all made in favour of and to the benefit of late Prince Morgan O. Uwandu in his personal capacity, and not jointly with any other person, including the Claimant in this case. It follow therefore that No. 10 Rotimi Street, Owerri was acquired alone by late Morgan O. Uwandu, then the Latin Maxim Quid Quit Plantatur Solo Solo Cedit or what is attached to the land (soil) belongs to the land (soil) applies in favour of the presumption that any building erected on No. 10 Rotimi Street, Owerri, belonged exclusively to the exclusive owner Prince Morgan O. Uwandu, unless and until the contrary is proved.
The above in my view sums it all up.
The relief sought by the Appellant that the Court declares that the property known as No. 10 Rotimi Street, Owerri, belongs to her and her son, cannot in the face of the dearth of evidence, oral or documentary stand. The Appellant has clearly failed to prove her averments.
What the Appellant is claiming is with regard to title to land.
Afterall the property, the subject matter of this Appeal i.e. the property at No. 10 Rotimi Street, is on a piece and parcel of land. What is on the soil or land belongs to the land. This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 3
The doctrine of Estoppel connotes that where a man by word or conduct willfully makes a representation of a state of facts to another, and thereby induced that other to believe that the state of things were as reputed by that person and that other took him by his words, and acted upon that representation, that person who made the representation either by himself or his representative in interest, cannot now turn around to say, or behave as if the state of things were not as he represented them, he is ESTOPPED from asserting the contrary. First and foremost, the Appellant at the Court below was represented by Court in respect of Suit No. HOW/143/95. Her sole witness PW2 ? Prince Obioha Uwandu who is her son were both represented by counsel in HOW/143/95 PW2 in the Court below tendered Exhibit ‘O’, the Court judgment in respect of HOW/143/95. The
Appellant’s Counsel was in Court (for Records) when the consent judgment was delivered. She cannot now say that she did not consent to the judgment. She will be estopped. She signed the application letter for the matter to be settled out of Court. She had already made representation to the other party that she agrees that the matter be settled out of Court. There is evidence that her counsel submitted to the judgment of the Court in Suit No. HOW/143/95. The result is that estoppel applies. The Appellant, her counsel and her children all agreed to the terms of the settlement she is therefore estopped for saying now that the judgment is not binding on her.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 4
This issue is one which would have been argued and resolved with Issue No 1.
It is my view that the boys quarters bungalow which the Appellant avers she built is not in issue.
But the bungalow and the land on which it stands has not been proved by the Appellant to belong to her. It is she who had built on another man’s land. There is every evidence to show that the Appellant’s deceased husband owned the land in dispute holding No. 10 Rotimi Street, Owerri, but regrettably there is no evidence to show that the land and the house belongs to the Appellant. The Court below was therefore right when it failed to grant the boys quarters (bungalow) and the two storey building at No. 10 Rotimi Street, Owerri to the Appellant. After all the boys quarters was never put in issue by the parties.
This issue is resolved in favour of the Respondent and against the Appellant.
The Appeal is devoid of merit and same is hereby dismissed.
The judgment of the High Court 5 Owerri, in Suit No. HOW/62/98 delivered on the 28th of May 2012 is hereby affirmed.
Parties to bear their respective costs. This is a family matter.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading, in draft, the lead judgment, just delivered by my lord, R. T. Pemu, JCA and I agree completely with the reasoning and conclusions therein, that the appeal lacks merit.
I too dismiss it and abide by the consequential orders in the lead judgment.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE R. N. PEMU, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
Appearances:
Chief I.O. Igboanugo (KSM)For Appellant(s)
S. A. Njoku, Esq.For Respondent(s)
