AGADAMA & ANOR v. OMADIDE & ORS
(2021)LCN/15169(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Monday, March 15, 2021
CA/AS/234/2014
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
- MR. GORDON AGADAMA (DECEASED) 2. MR. JONATHAN TUNDE AGADAMA (SUBSTITUTED FOR THE DECEASED) APPELANT(S)
And
- CHIEF TENE OMADIDE 2. MR PAUL OGUN 3. MR MEETING OKITO (For Themselves And On Behalf Of The Other Members Of The Uwhe Family Of Effurun) RESPONDENT(S)
RATIO
WHETHER IT IS THE CORRECTNESS OF A DECISION AND NOT NECESSARILY THE REASON FOR SUCH DECISION OF A TRIAL JUDGE THAT THE APPELLATE COURT WILL STRIVE TO UPHOLD.
“…The learned trial judge was therefore right in his conclusion even though he might have relied on a wrong reason. This will not make this Court to set aside his findings which has been adjudged to be correct having regard to available documentary evidence. It is the correctness of a decision and not necessarily the reason for such decision of a trial judge that the appellate Court will strive to uphold. See; JIKANTORO v. DANTORO (2004) All FWLR 390; A.G. LEVENTIS (NIG) PLC v. AKPU (2007) WRN 1 at 27 and ODUKWE v. OGUNBIYI (1998) 8 NWLR (PT.561) 339.” per OSEJI, J.C.A (PP. 38-39, PARAS. D – A) PER BIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
ATTITUDE OF THE APPELLATE TO INTERFERENCE WITH FINDINGS OF FACTS ARRIVED AT BY THE COURTS BELOW
In EZEAFULUKWE v JOHN HOLT (1996) LPELR – 1196(SC); the Court held thus; “This is because, although appeal Courts do not normally disturb findings of facts arrived at by the Courts below or are indeed or should be reluctant or slow in doing so, based upon errors apparent from the printed record of proceedings, the Appeal Court will however rise to the call of duty as in the instant case and in the interest of justice, to disturb, alter, reserve or set aside the lower Court’s findings of facts if on the printed record such, findings cannot be supported or are not proper conclusions and inferences to be drawn from evidence. See Kuforiji v. V.Y.B. Nigeria Ltd. (1981) 6 – 7 S.C. 40 at 84; George Okafor.” per ONU, J.S.C (P. 23, PARAS. B-E). PER BIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
POSITION OF THE LAW REGARDING ON WHOM THE MANAGEMENT OF FAMILY OR COMMUNAL LAND IS VESTED UPON
In the case of ANYAFULU v. MEKA (2014) 7 NWLR (PT. 1406) 396, 416 – 417, the Supreme Court following EKPENDU v. ERIKA (1959) SCNLR 186 held that the management of family or communal land is vested in the head of the family, who acts as a trustee of such land and is required to consult other members of the family in case of important decision relating to such land. See also ACHILIHU v. ANYATONWU (2013) 12 NWLR (PT. 1368) 256, 279. PER JOSEPH EYO EKANEM, J.C.A.
BIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, Effurun Judicial Division coram Justice P. O. Onajite – Kuejubola (Mrs) delivered on the 4th November, 2013.
The claim in the lower Court was as follows;
i. A Declaration that all the piece and/or parcel of land along P.T.I. Road (also known as No 1 P.T.I. Road) Enuorere Quaters, Effurun which piece and/or parcel of land consist of UWHE FAMILY COMPOUND including all the premises and appurtenances thereon is the property of the Claimants prior to promulgation of the land use Act.
ii. A Declaration that as owners in actual and constructive possession, the claimants are entitled to the statutory right of Occupancy in respect of the land described in paragraph (1) above
iii. A Declaration that the Defendant’s invasion of the land in peaceable possession of the claimant since the month of February 2008 and the construction of Four stores thereon without the consent and/or approval of the claimants first had and obtained is illegal and therefore null and void.
iv. A Declaration that
1
the continuing erection of the said stores mentioned above in spite of the claimant’s protest and without an approval and/or permit of the relevant town planning authority and/or Government agency is illegal, null and void.
v. The sum of N10,000,000 (TEN MILLION) FOR THE TRESPASS and illegal acts the Defendant mentioned above.
vi. An order of Court directing the defendant to vacate forthwith the unauthorized and illegal structure and stores erected on claimant’s land.
vii. An order of perpetual injunction retaining the defendant from trespassing on the Claimants land.
The trial Court after consideration of the evidence adduced at trial, entered judgment in part for the Respondents. The Appellant dissatisfied with the said judgment appealed by a Notice of appeal filed on 8th November, 2013.
The Appellant filed an Appellant’s brief of argument dated 22nd of May 2018, filed on 9th March, 2020 and deemed on 18th January, 2021 and a Reply brief filed on 9th March, 2020 deemed on 18th January, 2021 both settled by Joseph – Jasper O. Egboye of CARITAS CHAMBERS, wherein he settled a sole issue;
2
“Whether the learned trial judge was right to have ordered the defendant/Appellant to vacate the structures/stores erected by him on the Family compound/land in dispute when from the several findings made and accepted by the trial judge, same does not support the making of the order.’’
The Respondent’s brief was filed on 30th July, 2019 deemed 18th January 2021, same was settled by A. E. Duku, Mrs E. A Duku, A. Ogbiruveta Esq, E Taiga (Miss) Acti, A. A. Affeall of A.E DUKU & ASSOCIATES wherein he distilled an issue for determination thus;
“Whether the learned trial judge having found as a fact and held that the compound belongs to Uwhe family, the learned trial Court is not justified to make the order in the circumstances of the case to forestall the Appellant from laying exclusive claim to the ancestral compound.’’
APPELLANT’S ARGUMENTS
Upon the sole issue, the Appellant submitted that the lower Court after stating the correct position of the law in its holdings at pages 188-190 of the record that, the Appellant belongs to the same family as the Respondent and the family compound/land in dispute not having
3
been partitioned, same belongs to both parties jointly as co – owners as such the plaintiff’s claim for declaration of title or statutory right of occupancy, damages for trespass and injunction cannot be granted.
The learned trial Judge he contended fell into error when at page 104 item 3, she ordered and directed the defendant/Appellant to vacate the structures/stores erected by the Appellant on the family compound on the premise that the structures/stores were erected without the permission of the family of which the Defendant/ Appellant is a bonafide member.
He submitted that this order made is erroneous because without conceding, the lower Court failed to appreciate that the ownership of the structure/stores on family land is inseparable from the parties’ interest (i.e. ownership of the land itself). He canvassed that the order should not stand as it has the net effect of denying the Appellant the enjoyment of his co – ownership rights of the family compound in dispute vis a vis the structures erected by the Appellant thereon in respect of which the Court in its judgment had found and held that the property not having been
4
partitioned, is joint property of both parties to the suit. He relied on ALAO & ANOR v AJANI & ORS (1989) NWLR (PT 113) 1; SHELLE v AJASON (1957) NSCC 55; KASUMU v IYANDA & ORS (1966) NSCC49.
He further submitted that the lower Court ought to have made an order declaring the structures/stores erected by Appellant on family land as UWHE FAMILY PROPERTY which both parties belong to and the proceeds thereof shall be the joint property of all members.
Appellant submitted that there is evidence that the shops were occupied by tenants who pay rents but were not made parties to the suits. He submitted that the order would work hardship against them.
RESPONDENTS’ ARGUMENTS
The Respondents’ counsel submitted that the learned trial Court was right in her decision, in view of the decision that the compound belonged to Uwhe family as joint family compound based on the evidence led by the parties in the circumstances of this case.
Counsel referred to various portions of the findings of the lower Court as in;
(1) Page 170 of the record, paragraph 1 page 13 of the judgment.
(2) Paragraph 2, line 14-18 at page 14 of
5
the judgment at page 191 of the record.
(3) Paragraph 3, line 23-28 at page 14 of the judgment at page 171 of the record
(4) Paragraph 2 lines 5-7 page 15 of the judgment at page 191 of the record.
(5) Page 16 (lines 12-17) of the judgment at page 193 of the record of appeal.
(6) Page 17 (lines 15-22 of the judgment) at page 194 of the record
Respondents’ Counsel submitted in reiterating the findings that the compound in question/dispute is the ancestral home of the entire Uwhe family and therefore not that of the Appellant and added that the Appellant did not challenge this in its Notice of appeal, he relied on SALEM DAWAI v THE STATE (2018) ALL FWLR PT 970 PAGE 923 @ 928 to the effect that this means that they are deemed to have admitted or accepted such pronouncement as proper.
Respondents’ counsel submitted that the Appellant cannot lay exclusive claim to the compound, furthermore, he contended that there is evidence that the Uwhe family took the decision to build a Uwhe ancestral hall to replace the said stores as a result the head of the family; High Chief J. O. Alamudo Adajaroh called a meeting where it was
6
decided that Appellant relocates to another Uweh family land at Erere along P. T. I road, 100 feet by 100 feet to build his personal house. This decision was accepted by Appellant, after which he built his house known as No 134 P. T. I. Road, Effurun, this evidence was at paragraphs 37, 38 & 39 of the statement of Claim at page 12 & 13 of the record.
Respondent pointed out that Appellant denied this by his defence but agreed under cross evidence at paragraphs 10-15 at page 174. Therefore, Respondent submitted that the Appellant cannot turn round to contend otherwise to remain and enjoy the family property to the exclusion of all other members, he cited OKOROCHA v PEOPLES DEMOCRATIC PARTY (2015) ALL FWLR PT 786 PAGE 530 @543.
He urged the lord to resolve the issue against the Appellant and dismiss same with heavy cost.
In response to the argument in the brief, Respondent submitted that it amounted to admission against interest and that the case of KASUMU v IYANDA did not apply and that Appellant misunderstood the position of the Respondents about the family compound which he exclusively claims ownership. He cited NKA v ONWU (1996) 40/41 LRCN PAGE
7
1303 AT 1305-1306.
Respondents’ counsel submitted that ownership of a family property is vested in the whole family through the head as trustee for the whole family. The right of users abates upon the agreement of the members of the family to vacate, alienate or partition, etc.
He urged that the issue be resolved against the Appellant.
APPELANTS’ REPLY
The Appellant’s counsel submitted that contrary to Respondents’ submission, the claim of the Appellant is that the disputed land is not the entire family land of Uwhe family. It is only a portion thereof and the Appellant did not lay exclusive claim to the land as falsely put forth. It was never the case of Appellant that the land belonged to him exclusively. See page 67 lines 17 – 20.
He submitted that the Appellant did not file any counter claim to show that he did not claim same exclusively, but claims same as a co owner of the land and should enjoy rights of a co-owner and contends that they are co owners from evidence on record at page 190 lines 25 – 29 and therefore the lower Court made orders inimical ostracising of the rights of one of the family; a) right
8
of residence in the property b) his right of reasonable ingress c) right to have a voice in management d) right to share in any surplus income derived from it e) right to apply for partition or sale of property f) right to protect the family property g) right to physical possession and use of family land and h) right to devolve interest in family property to off spring. He referred to THOMAS v. THOMAS (1932); OBASOHAN v OMORODION (2001) FWLR (PT 67) PG 980 AT 994.
In addition, he cited AKAYEPE & ANOR v AKAYEPE (2009) VOL. 175 LRCN 203 that the Court would not make injunctions against a member of a family in respect of family land which has not been partitioned, that the order made is tantamount to an order of mandatory injunction.
On points of law, he submitted that there is no conclusive evidence showing that there was any customary arbitration or conclusive decision of the family to build anancestral hall, therefore, the case of NKA v ONWU, did not apply. He urged that the appeal be allowed.
RESOLUTION
The starting point is what the lower Court ordered. I shall reproduce the said;
“A declaratory order is hereby made that the
9
Defendant invasion of the land in a peaceable possession of the claimant since the month of February 2008 and construction of 4 stores thereon without the consent of the claimant first had and obtained is illegal and therefore null and void. “clamant means Uwhe family’’.
A declaratory order is hereby made that the continuing erecting of the said stores mentioned above in spite of the claimant protest and without approval from the relevant Town planning authority is illegal, null and void.
The Defendant is hereby directed to vacate the unauthorized and illegal structures/stores erected on their family land, without permission…’’
The above are the orders made by Court, and the Appellant has complained above about the order to vacate the structure/stores erected by the Appellant on the family compound on the premises erected without the permission of the larger family of which the Defendant/Appellant is a bonafide member.
And complained about the effects thereof urging the Appellate Court to set aside the order and substitute that the structures/stores in question as UWHE FAMILY PROPERTY.
10
I have read the judgment of the lower Court and perused the evidence on record to the effect that there were existing structures made of stones which before now were rooms but as members of the family moved out, the Appellant in his wisdom cleverly renovated them with blocks and converted them to stores. Upon challenge, he stated that he was only maintaining same but this got to the head, when he brazenly without the consent or permission notice of other family members and the head, did same as a personal right and property, there is further evidence that as a family member he owed nobody any explanation or accounts for rents collected. See page 174 of the record, line 10 – 25.
Definitely, it’s this attitude that prompted the filing of the action and the reliefs sought are what were granted upon the convincing evidence before the Court. The finality of all these is that the entire land belongs to the ancestral family and any portion converted still lies in the family who manages same in the manner they deem fit.
It will serve no useful purpose to substitute the proposed request of the Appellant as the order of Court.
11
The head of the family decides the administration of the properties together with all members of the family and in evidence both sides agree that the Appellant is a maternal member of the family, the Appellant had carried on as a one man member of the family and had tampered with the family property without the consent of others who had equal rights to the property. Anything to be done by the Appellant or any other member must be done with consent and approval of all members of the family under the headship of the family head therefore this Court cannot regulate the procedure of administration of the family.
I am in agreement with the Respondents’ counsel that the learned trial judge had made far reaching findings in the judgment at page 13/170 of record thus;
“As in this case, all members of a family have equal right to a family land, but in every case, the family head has charge of the land and in loose terms is sometimes called the owner. He holds the land in trust for the use of the family. He controls the family, such that anyone who wants a portion of it to cultivate or build or house goes to him for it. But the land so given still remains the property of
12
the family Land.”
Amongst others the above sums up the reality of the situation and drives home the point that the appeal of the Appellant is superfluous to say the least.
See; UBA LTD v ACHORU & ANOR (1990) LPELR – 3403 (SC); OLAIYA v COKER (2014) LPELR – 22643 (CA).
“…The learned trial judge was therefore right in his conclusion even though he might have relied on a wrong reason. This will not make this Court to set aside his findings which has been adjudged to be correct having regard to available documentary evidence. It is the correctness of a decision and not necessarily the reason for such decision of a trial judge that the appellate Court will strive to uphold. See; JIKANTORO v. DANTORO (2004) All FWLR 390; A.G. LEVENTIS (NIG) PLC v. AKPU (2007) WRN 1 at 27 and ODUKWE v. OGUNBIYI (1998) 8 NWLR (PT.561) 339.” per OSEJI, J.C.A (PP. 38-39, PARAS. D – A)
In EZEAFULUKWE v JOHN HOLT (1996) LPELR – 1196(SC); the Court held thus;
“This is because, although appeal Courts do not normally disturb findings of facts arrived at by the Courts below or are indeed or should be reluctant or slow in doing so, based
13
upon errors apparent from the printed record of proceedings, the Appeal Court will however rise to the call of duty as in the instant case and in the interest of justice, to disturb, alter, reserve or set aside the lower Court’s findings of facts if on the printed record such, findings cannot be supported or are not proper conclusions and inferences to be drawn from evidence. See Kuforiji v. V.Y.B. Nigeria Ltd. (1981) 6 – 7 S.C. 40 at 84; George Okafor.” per ONU, J.S.C (P. 23, PARAS. B-E).
Reliefs sought are clear and the implication obvious, the Appellant did not deem it fit to have filed a counterclaim at the lower Court; therefore, this Court cannot be used to grant claims/reliefs not sought by a party.
On the whole, this appeal lacks merit and fails in its entirety. It is dismissed.
The judgment of the High Court of Delta State, Effurun Judicial Division coram Justice P. O. Onajite- Kuejubola (Mrs) delivered on the 4th November, 2013 is hereby affirmed.
Cost of N200,000 is awarded in favour of the Respondents.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the succinct and apt lead judgment delivered by my learned brother, Abimbola
14
Osarugue Obaseki-Adejumo, JCA in this appeal dismissing the appeal.
I agree. There is no rent in the appeal herein where family property not partitioned nor allotted exclusively by the family was sought to be appropriated in part because of the occupation and use thereof by the Appellant.
Family property remains so, until partitioned. See ALAO & ANOR. VS. AJANI & ORS. (1989) NWLR (PT. 113) PAGE 1. SEE ALSO OLODO V. JOSIAH & ORS (2010) LPELR 2S84 (SC).
That hardship will be caused to tenants put in by the Appellant, a joint owner of the property (unauthorized) will not convert their claim that may exist for indemnity against the Appellant into a right or interest to defeat the family/Respondent’s title or claim.
The continued possession of tenants was subject to the ratification and at the pleasure of the Respondent family.
The Appellant who, could not have validly filed any Counter claim as there could be no basis, gleaning from the facts of this case has had the appeal rightly dismissed against him.
Appeal dismissed.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead judgment of my
15
learned brother, A. O. OBASEKI-ADEJUMO, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal lacks merit.
The trial Court found that the land in dispute is family property of the Uwhe family and that the same had not been partitioned. Though the appellant is a member of the family, he erected stores on the land or converted existing structures to stores without the permission of the family. The result is that the stores belong to the family based on the principle of quid quid plantatur solo solo cedit. See GAJI v. PAYE (2003) 8 NWLR (PT. 823) 583
In the case of ANYAFULU v. MEKA (2014) 7 NWLR (PT. 1406) 396, 416 – 417, the Supreme Court following EKPENDU v. ERIKA (1959) SCNLR 186 held that the management of family or communal land is vested in the head of the family, who acts as a trustee of such land and is required to consult other members of the family in case of important decision relating to such land. See also ACHILIHU v. ANYATONWU (2013) 12 NWLR (PT. 1368) 256, 279.
Since the head of the Uwhe family and other members thereof decided that the appellant should relocate to another family land, the
16
trial Court was justified in making the orders that it did.
On account of the foregoing and the more comprehensive reasons set out in the lead judgment of my learned brother, I find no merit in the appeal and I also dismiss the same.
I abide by the consequential orders made in the lead judgment.
17
Appearances:
Blessing Ogheneovo For Appellant(s)
A.E. Duku, with him, A. Dgbiruvela For Respondent(s)
