ANYAEHIE & ORS v. ONGOLO & ORS
(2022)LCN/16230(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Monday, July 04, 2022
CA/PH/287/2019
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. SIR JOHN RICHARD ANYAEHIE 2. MR. CHINEDU C. ANYAEHIE 3. ANYAEHIE FOUNDATION COMPANY NIGERIA LIMITED APPELANT(S)
And
1. MR. TALFORD ONGOLO 2. MR. CELESTINE OMEHIA 3. ATTORNEY-GENERAL OF RIVERS STATE RESPONDENT(S)
RATIO
WHETHER OR NOT A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF HIS OPPONENT
In a claim for a declaration relating to title to land, the Claimant/Counter Claimant must succeed on the strength of his own case and not on the weakness of the case of his opponent. Inspite of the failure of the Appellants to file a defence to the counter-claim, the Respondents/Counter-Claimants still have a duty of proving their case. They must lead evidence to support their pleadings even if the Appellants have admitted the claim. See Ilori & Ors vs. Ishola (2018) 15 NWLR (Pt. 1644) 77, Nkwocha vs. Offurum & Ors (2002) 5 NWLR (Pt. 701) 506, Bello vs. Eweka (1981) 1 SC 101.
In Ogbonna vs. A. G. Imo State (1992) 1 NWLR (Pt. 220) 647 at 698, Apata JSC said:
“Failure of a Plaintiff to file a defence to a counter-claim may not be disastrous if he succeeds in his claim. His success may render useless the counter-claim depending on the nature of the counter-claim. However, where he fails in his claim, as in this case and had filed no defence to the counter-claim, the defendant’s claim in his counter-claim remains uncontroverted. If however, the claim in the counter-claim is for a declaratory right the defendant will still have to satisfy the Court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.”
See also Dabup vs. Kolo (1993) 9 NWLR (Pt. 317) 254 and Nigerian Housing Development Society Ltd vs. Mumuni (1972) 2 SC 57. One of the golden trends that runs through our jurisprudence is that evaluation of evidence and ascription of probative value thereto, is the exclusive preserve of the trial Court. See Usufu vs. The State (2007) 3 NWLR (Pt. 1020) 94, Gundari vs. Nyako (2014) 2 NWLR (Pt. 1391) 211. PER ABDULLAHI, J.C.A.
WHETHER OR NOT AN APPELLATE COURT CAN SUBSTITUTE ITS OWN VIEWS FOR THAT OF THE TRIAL COURT
An appellate Court will not substitute its own views for that of the trial Court which had the opportunity of seeing and hearing witnesses. See Ismail vs. FRN (2020) 2 NWLR (Pt. 1707) 85, Oguntade vs. Oyelakin (2020) 6 NWLR (Pt. 1719) 41.
An appellate Court can only interfere with this process when the same is perverse. See Offordile vs. Offordile (2019) 16 NWLR (Pt. 1698) 189, UBN vs. Chimezie (2004) 9 NWLR (Pt. 1411) 166. PER ABDULLAHI, J.C.A.
WHETHER OR NOT A CERTIFICATE OF OCCUPANCY RAISES THE PRESUMPTION OF EXCLUSIVE POSESESSION
The Supreme Court in Ezeanah vs. Attah (2004) 7 NWLR (Pt. 823) 469, 501 per Tobi JSC stated as follows:
“A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had better title to the land before the issuance of the Certificate of Occupancy then the Court can revoke it.”
SeeRomaine vs. Romaine (1992) 4 NWLR (Pt. 238) 650 at 662 Para. E-G Per Nnaemeka Agu J.S.C.
“I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant. See Idundun vs. Okumagba (1976) 9-10 S.C. 227; Piaro vs. Tenalo (1976) 12 S.C. 31, p. 37; Nwadike vs. Ibekwe (1987) 4 NWLR (Part 67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:
(i) Whether the document is genuine and valid;
(ii) Whether it has been duly executed, stamped and registered;
(iii) Whether the grantor had the authority and capacity to make the grant;
(iv) Whether the grantor had in fact what he purported to grant; and
(v) Whether it has the effect claimed by the holder of the instrument.” PER ABDULLAHI, J.C.A.
THE DOCTRINE OF STARE DECISIS
This issue revolves around the doctrine of stare decisis which connotes the bindingness of decision of a Court on that same Court and all subordinate Courts to it when confronted with the same or similar issues in the future. See Chukwuma Ogwe vs. Inspector General of Police (2015) 7 NWLR (Pt. 1459) 505 at 523 Paras. E-H and Ardo vs. Nyako (2014) 10 NWLR (Pt. 1416) 591 at 626. PER ABDULLAHI, J.C.A.
WHETHER OR NOT JUDGMENT GIVEN WITHOUT JURISIDICTION IS A NULLITY
The Supreme Court has determined in a plethora of cases that judgments given without jurisdiction; judgments obtained by fraud or deceit and judgments that are a nullity are liable to be set aside ex debito justitiae.
In Obimonure vs. Erinosho (1966) All NLR 245 at 247, the Supreme Court per Brett, J.S.C. held:
“…a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order and that it is not necessary to appeal from it.”
In Skenconsult vs. Ukey (1981) 1 S.C. 6 at 26 and Adegoke Motors Limited vs. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 273, the Supreme Court held that it is the law that if an order of Court is a nullity, it can be set aside without much ado. Such judgments are rendered null and void by a fundamental defect and can be set aside.
The circumstances where the trial Court can exercise its inherent jurisdiction to set aside its previous decisions have been established by the Supreme Court and adumbrated in several cases including Alawiye vs. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570 at 620 Para E-H where the Supreme Court per M. D. Muhammed, J.S.C. stated:
“It is settled law that Courts of record, which the trial Court, the Court below and indeed this Court are, have the inherent jurisdiction to set aside their judgments or decisions under certain appropriate circumstances, which include:
(a) The judgment is obtained by fraud or deceit in the Court by one or more of the parties;
(b) The judgment is a nullity;
(c) It is obvious that the Court was misled to giving the Judgment under a mistaken belief that the parties consented to it;
(d) The judgment was given in the absence of jurisdiction;
(e) The proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; and
(f) Where there is fundamental irregularity.”
See also the Court of Appeal decision in Ibrahim vs. Gwandu (2015) 5 NWLR (Pt. 1451) 1 at 30 Para. F- G. The situation in this appeal can be situated within the purview of (b) and (f) above namely:
(b) The judgment is a nullity
(f) There was fundamental irregularity. PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Rivers State High Court, Port Harcourt Judicial Division delivered on the 8th day of May, 2019, Coram: Hon. Justice G.O. Omereji in Suit No. PHC/35/2003.
The Appellants as Claimants at the lower Court by their Amended Statement of Claim sought the following reliefs against the Defendants:
1. A DECLARATION that the Claimants are entitled to the Statutory Right of Occupancy in respect of Plot 2, Diobu G.R.A. Phase 1, Port Harcourt and the Plot of land called ELI ALIGBAM at Eligbam Village, Rumueme and adjacent Plot 2, Diobu, G.R.A Phase 1, Port Harcourt (otherwise popularly called Plot 2A Birabi Street, G.R.A 1, Port Harcourt) and which said Plots/Parcels of land are shown as Area A and Area B on Survey Plan No. TAO/RIV2002/015-LD.
2. A DECLARATION that the entire Suit No: PHC/1443/2000 initiated by the 1st Defendant during the pendency of Suit No: PHC/1134/97 on same subject matter and reliefs and in which the 1st Defendant by disguise, misled the Honourable High Court to invalidate the Claimants’ Certificate of Occupancy over the Claimants’ property in dispute by deliberately excluding the Claimants from the said Suit amounted to fraud on the Court and the Claimants as such same is null and void and of no effect.
3. AN ORDER to set aside the judgment obtained by the 1st Defendant in Suit No: PHC/1445/2000 on 25/7/2000 for being tainted with fraud and fraudulently obtained at the back of the Claimants.
4. A DECLARATION that the Certificate of Occupancy dated 20th day of June, 1995 and registered as No. 77 at Page 77 in Volume 214 at the Lands Registry at Port Harcourt, Rivers State, Nigeria is valid and subsisting.
5. N20,000,000.00 (Twenty Million Naira) being for special and general damages for trespass in about November, 2002, the 1st and 2nd Defendants, their agents and privies purportedly acting under the authority of the 3rd Defendant, wrongfully broke and entered upon the Claimants parcel of land and building called ELI ALIGBAM adjacent to Plot 2, Diobu G.R.A. Phase 1 now in dispute, damaged and pulled down part of the wall fence at the entrance to the Parcel of Land commenced the construction of a gate and began the process of removing the zinc on the building built on the parcel of land by the Claimants.
6. A PERPETUAL INJUNCTION to restrain the Defendants, their servants, agents and privies from committing any further acts of trespass to the said property or any parts or portions thereof or however dealing with the same in any manner contrary to the Claimants’ rights or interest therein.
The 1st and 2nd Respondents as 1st and 2nd Defendants at the lower Court by their Further Amended Statement of Defence and Counter-Claim sought the following reliefs:
1. A DECLARATION that the 2nd Defendant/Counter-Claimant is the owner of Plot 2 Birabi Street G.R.A. Phase 1, Port Harcourt, covered by Certificate of Occupancy dated 30/4/1993 and registered as No.87 in Vol.193 and Deed of Assignment dated 16/10/2001, registered as No.66 at Page 66 in Vol. 276 at the land Registry, Port Harcourt.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Claimants/Defendants to Counter-Claim either by themselves, their servants, agents, privies howsoever described from further trespassing into the said Plot 2 Birabi Street G.R.A Phase 1, Port Harcourt or doing any act adverse to the peaceful possession of the 2nd Defendant/ Counter Claimant.
3. AN ORDER granting the 2nd Defendant/Counter Claimant’s possession of the said Plot 2 Birabi Street, G.R.A Phase 1, Port Harcourt.
The Appellants (as Claimants) in proof of their case called three witnesses and tendered Twenty-Seven Exhibits while the 1st and 2nd Respondents (as 1st and 2nd Defendants/Counter-Claimants) called one witness and tendered eight exhibits.
At the close of the case, the lower Court delivered its judgment in favour of the 1st and 2nd Respondents (as 1st and 2nd Defendants/Counter-Claimants).
Dissatisfied, the Appellants appealed the judgment of the lower Court by a Notice of Appeal dated the 28th day of June, 2019.
The Appellants’ Brief of Argument was filed on the 05/12/2019 but deemed properly filed on 17/01/22 and was settled by Ngozi Asoh, Esq., 1st and 2nd Respondents’ Brief of Argument was filed on 15/02/2022 and settled by N. Nzewi –Agbasi (Mrs).
ISSUES FOR DETERMINATION
Appellants’ counsel formulated three issues for determination to wit:
1. Having regard to the cases made out by the Appellants and the 1st and 2nd Respondents at the lower Court, whether the lower Court was not wrong in resolving all the issues relating to title of the disputed property in favour of the 1st and 2nd Respondents. (Distilled from Grounds 1, 3, 4, 5, 7, 8, 9 and 10)
2. Whether the lower Court was wrong when it refused to set aside the judgment of Honouarble Justice P.N.C. Agumagu in Suit No. PHC/1445/2000 delivered on 25/07/2001. (Distilled from Ground 2)
3. Whether the learned trial Judge was not wrong when he made determination on matters not pleaded by the 2nd Respondent in the suit, subject matter of this appeal. (Distilled from Ground 6)
1st and 2nd Respondents’ counsel formulated three issues for determination to wit:
1. Whether having regard to the state of the pleadings and evidence led before the trial Court, the trial Court was right in resolving all the issues of title of the disputed property in favour of the 1st and 2nd Respondents. (Distilled from Grounds 1, 3, 4, 5, 7, 8, 9, and 10)
2. Whether having regards to the pleadings and evidence adduced before the trial Court, the trial Court was right when it refused to set aside the judgment of Honourable Justice P.N.C Agumagu in Suit No. PHC/1445/2000, delivered on 25/07/2001. (Distilled from Ground 2)
3. Whether on the pleading and evidence before the trial Court it can be said that the trial Court descended into the arena of conflict. (Distilled from Ground 6)
ARGUMENTS ON ISSUE ONE
Appellants’ counsel contended that the lower Court considered the claim of the Appellants, the defence and the Counter-Claim of the 1st and 2nd Respondents and resolved the issue of title in favour of the 1st and 2nd Respondents. That the Judgment was pervasive and ought to be set aside and the Appellants’ relief granted.
It was submitted that the 3rd Respondent (Attorney-General of Rivers State) is the only party to clear the air on the issue of title and that they did not deny the claims of the Appellants, so it amounted to an admission. Reliance was placed on the case of Engr. Andrew Edegbo Omale vs. Federal Ministry of Lands, Housing and Urban Development & Ors (2015) LPELR – 25905 (CA) Per Wambai JCA (P. 47, Paras. A – D).
Appellants’ counsel submitted that the original allotee of the property known as No. 2 Birabi Street, GRA, Phase 1, Diobu, Port-Harcourt, Late B. M. C. Etiaba never had the plot revoked and there was no payment of compensation. That the second part of the disputed land was purchased by the 1st Appellant. That the burden of proof of the acquisition and payment of compensation fell on the 1st and 2nd Respondent who made the assertion. He referred to Section 136 (1) of the Evidence Act, 2011 and the case of Uzokwe vs. Dansy Industries (Nig.) Ltd. (2002) 2 NWLR (Pt. 752) 528 @ 544 Paras. C – D.
It was submitted that the 1st and 2nd Respondents claimed that Annexure A to the memorandum (Exhibit N) submitted by the Honourable Commissioner for Lands and Survey to the Executive Council of the Rivers State of Nigeria contained the evidence of payment of compensation. That Annexure A did not contain such evidence of payment and that Annexure B which Exhibit N described as containing the evidence of payment was not tendered in Court. That the learned trial Judge made no comment on this but instead started his determination of title to the property from the revocation of the 1st Respondent’s title. He referred to Orianzi vs. A.G Rivers State (2017) 6 NWLR (Pt. 1561) 224 at 268-269, Paras. H-C and 273, Paras. C-F.
Appellants’ counsel stated that the subsequent Certificate of Occupancy issued to the 1st Respondent was defective as the initial allocation to Late B.M.C Etiaba is subsisting. Reliance was placed on Macfoy vs. U.A.C Ltd (1962) AC 153.
That the learned trial Judge did not reckon with the effect of non-payment of compensation and held that the 1st Defendant’s Certificate of Occupancy and the valid and subsisting judgment of Honourable Justice P.N.C Agumagu clearly proved the root of title of the 1st and 2nd Respondents. He referred to the case of Alhaja Raliat Oyenike Sanni vs. Alhaji Iyanda S. Olateju & Ors (2013) LPELR – 21377 (CA) Per Muktar J.C.A (P. 44, Para D) thus:
“In any incidence of acquisition of land, it is the payment of compensation that extinguishes whatever right a family might have on the land.”
He also submitted that the lower Court in arriving at the determination that the 1st and 2nd Respondents successfully proved their title, the lower Court suo motu nullified the revocation of 1st Respondent’s Certificate of Occupancy when no such relief was sought by the 1st and 2nd Respondents. That the lower Court had no power to grant relief not prayed for. He referred to the cases of University of Jos vs. Dr. M. C. Ikegwuoha (2013) LPELR – 20233 (SC) Per Alagoa JSC Pp. 22-23, Paras. E – F and Chief N. T. Okoko vs. Mark Dakolo (2006) 14 NWLR (Pt. 1000) 401.
Appellants’ counsel contended that assuming the lower Court has the power to annul the revocation, no evidence was led to show that the revocation was unlawful.
He finally submitted that the lower Court did not know the land in dispute. That the disputed property is made up of 2 plots. One covered by the Rivers State Government and described as No. 2 Birabi Street, GRA, Diobu, Port Harcourt and another, a family land called Eli Aligbam situate at Eligbam village, Rumueme, adjacent Plot No. 2, Birabi Street, G.R.A, Diobu, Port Harcourt.
On issue one, 1st and 2nd Respondents’ counsel submitted that the trial Court was right when it resolved all the issues of title of the disputed property in favour of the 1st and 2nd Respondents because they proved a better title to the land in dispute. That the trial Court has the primary duty of evaluating evidence and the appellate Court will not interfere in such duty. Counsel referred to the case of Lumatron Nig. Ltd & Anor vs. FCMB (2016) LPELR – 41409 CA.
Counsel stated that civil cases are decided on the preponderance of evidence. He placed reliance on the case of Osuji vs. Eke Ocha (2009) 16 NWLR, Pt. 1166, Pg. 81.
He stated that the Appellants and the 1st and 2nd Respondents traced the Original Ownership of the property to Mr. B. M.C Etiaba, the allotee by the Government of former Eastern Region of Nigeria. Counsel cited the case of Kolo vs. Lawan (2018) LPELR – 44378 (SC) (2018) 13 NWLR, Pt. 1637, Pg 495 on a claimant’s success on the strength of his own case and not on the weakness of the defence.
He also cited the case of Idundun vs. Okumagba (1976) 9 10 SC 227 on the five ways a person claiming title to land, has a duty to prove as laid by the Supreme Court. That the Appellants by their pleading and evidence relied on three ways of proving title which are (i) Traditional history (ii) production of title documents (iii) long possession. That they failed to adduce credible evidence in proof of their case. He referred to the case of SPDC vs. Akpomudje (2018) LPELR – 46105 (CA).
Counsel undertook a review of the pleadings of the Appellants and the evidence adduced in support of same. He stated that Appellants’ counsel attempted to demarcate the property in dispute into two and named the second part plot 2A Birabi Street, GRA, which land purportedly belonged to the Ngba family of Eligbam village, Rumueme from whom the 1st Appellant purportedly purchased same. That the Appellants called CW2, Chief Emmanuel Nnanta Chinda and tendered Exhibits A2, B, B1, B2, C, C2, D1 and ID1 in trying to prove that the parcel of land is under the native law and does not form part of GRA Master plan. That CW2 is not a truthful witness and the documents tendered as Exhibits did not help the case of the Appellants. Reliance was placed on the cases of Yusuf vs. Obasanjo (2005) 18 NWLR Pt. 956, Pg. 96 at 167, Para B, Nnajiofor vs. Ukonu (1986) 4 NWLR, Pt. 36, Pg. 505 Ratio 2 at 506, Ajide vs. Kelani (1985) 3 NWLR Pt. 12 and Harding & Anor vs. AG & Pt. Lagos State & Anor. (2016) LPELR – 40990 CA.
He stated that the Appellants failed to plead and proved the necessary facts to enable them rely on traditional history. Cited the case of Ordu vs. Elewa (2018) 17 NWLR Pt. 1649, Pg 515 at 544 – 545, Paras. H – D.
Counsel submitted that the trial Court was not in doubt as to the identity of the land in dispute and was right to hold that the land in dispute is as averred by the Certificate of Occupancy granted to the 1st Respondent. That the 1st and 2nd Respondents in their pleadings denied the survey plan of the Appellants and stated that the land in dispute is No. 2 Birabi Street, GRA with an area of approximately 2545.05 square meters. He relied on the case of Aru & Ors vs. Ohafia Line Services Ltd. (2014) LPELR – 23158 (CA).
He submitted that the Appellants tendered various documents most of which did not relate to the property in dispute. That Exhibits A, A1 and A2 were not registered and so could not transfer title. Also, that Exhibits B, B1, B2, C and C2 are not title documents. He placed reliance on the case of Nyesom vs. Peterside (2016) LPELR – 40036 (SC).
He further submitted that Appellants pleaded and relied on Exhibit D6 – Certificate of Occupancy dated 20/06/96. He contended that the Certificate of Occupancy was void ab initio because at the time it was issued, there was a valid and subsisting Certificate of Occupancy (Exhibit L) in favour of the 1st Respondent in respect of the property in dispute. He referred to the cases of Nnadike & Anor vs. Nwachukwu (2019) LPELR – 48131 (SC), Ononuju & Anor vs. A. G. Anambra State 2009 LPELR – 2692 (SC) and Integrated Rubber Products Nig. Ltd. vs. Iraboroviawe (1992) 5 NWLR (Pt. 243, Pg. 572).
Counsel stated that Appellants by their pleadings also sought to rely on acts of possession but failed to adduce evidence in proof of same. That from 1993 when the 1st Respondent purchased the property in dispute from Rivers State Government and up till 2001, when he assigned his interest in the property to the 2nd Respondent, the property had been in vacant possession of the 1st Respondent and then to the 2nd Respondent. He stated that from Exhibit H (Notice of Sales) before 23rd day of January, 1992, it was the tenants of Rivers State Housing and Property Development Authority that were in occupation of the three houses at No. 2 Birabi Street, GRA Phase 1, Port Harcourt and upon service of due notice on them, they vacated the said property for the 1st Respondent. That the 1st Respondent’s renovation of the three houses was not disputed by the Appellants either in their pleadings or evidence adduced at the trial Court. Cited the cases of Ajibade vs. State (2013) 6 NWLR (Pt. 1349) 25 at P. 47, Para. E, Gaji vs. PAYE (2005) 5 SC 53 and Cameroon Airlines vs. Otutuizu (2011) 4 NWLR 512.
It was contended that the Appellants claimed that they are presently in possession of two, out of three houses in Plot 2 Birabi Street, GRA, Phase 1, Port Harcourt and relied on the principle of recent acts of possession to establish title to the land in dispute. That the Appellants gained possession through the use of naked force and a trespasser does not create a legal right by his act of trespass. It therefore amounts to no possession. Referred to the case of Ayorinde vs. Sogunro (Pt. 1312) 460 at P. 501 Paras. B – C.
It was submitted that the 1st and 2nd Respondents as Defendants/Counter-Claimants filed a counter-claim on the 16/02/2018 and that they pleaded and proved three ways out of the five ways of proving title identified in the case of Idundun vs. Okumagba (supra) which are:
(i) Production of document of title
(ii) Acts of ownership and possession by a person over a sufficient length of time numerous and positive enough to warrant the inference of true ownership and
(iii) Acts of his possession and enjoyment of the land in dispute.
Counsel contended that both the Appellants and Respondents are in agreement that B.M.C Etiaba (now deceased) was the original owner of the land in dispute and that in line with their pleadings and evidence in support. The 1st and 2nd Respondents tendered documents showing how the right of ownership passed from the late B.M.C Etiaba to the Rivers State Housing and Property Development Authority, then to the 1st Respondent and further to the 2nd Respondent. That the 1st and 2nd Respondents tendered Exhibits F, G, H, J, K, I, L, and N.
He submitted that the 1st and 2nd Respondents established a better title to the property in dispute and the trial Court was right in resolving the issue in favour of the 1st and 2nd Respondents.
He argued that the contention of the Appellants’ counsel that the 3rd Respondent who ought to clear the air on the issue of title, stood by and never denied their claims amounts to an admission is misconceived because of the case of Engr. Andrew Edegbo Omale vs. Federal Ministry of Lands, Housing and Urban Development (supra) cited by the Appellants was out of context and did not apply in the instant case. Reliance was placed on the case of Okafor vs. Nnaife (1987) 4 NWLR Pt. 64, Pg. 129 at 137, Paras. D –E.
He further argued that the Appellants’ contention that having joined issues with the 1st and 2nd Respondents on the issue of acquisition and payment of compensation, the burden to prove same fell on the 1st and 2nd Respondent was wrong. That the Appellants having failed to file a reply to the Further Amended Statement of Defence and a defence to the counter-claim are deemed to have admitted the averments contained in the Further Amended Statement of Defence and Counter-Claim and so need no further proof. Referred to the cases of Maobison Inter Link Associated Ltd vs. UTC Nigeria Plc (2013) LPELR – 20335 (SC) and Oguanuhu & Ors vs. Chiegboka (2013) LPELR – 19980 (SC).
He submitted that Exhibit N shows that the Rivers State Government acquired the property in dispute from the original owner B.M.C Etiaba (now deceased) after the Nigeria Civil War and the Property in dispute was never at anytime transferred to the 1st Appellant by Mr. B.M.C Etiaba as the Appellants are alleging through Exhibits A and A1.
Counsel argued that Annexure A to the memorandum (Exhibit N) shows that the property in dispute was acquired and compensation was paid to B.M.C Etiaba and the Annexure B referred to in the memorandum has nothing to do with the property in dispute. He submitted that the Appellants did not adduce any evidence to counter the evidence of the 1st and 2nd Respondents in the facts of the acquisition. Relied on the cases of Nyako vs. Adamawa State House of Assembly (2016) LPELR – 41822 (SC) and Edeh vs. Mac-Tino Nig. Ltd. (2018) LPELR – 45859 (CA).
Counsel stated that the trial Court properly evaluated the evidence before it and came to the conclusion that the 1st and 2nd Respondents proved a better title to the property than the Appellants. He urged this Court to uphold the findings of the trial Court.
ARGUMENTS ON ISSUE TWO
On issue two, Appellants’ counsel submitted that the lower Court was wrong in its decision in refusing to set aside the Judgment of Justice P.N.C Agumagu delivered on 25/07/2001.
He argued that the 1st and 2nd Respondents agreed that the lower Court had jurisdiction to set aside the judgment but that the enabling indices were lacking and the learned trial judge agreed with this but spoke with the two sides of his mouth when he took a completely different position that to set aside the judgment would amount to sitting on appeal over the Judgment of Justice P. N. C Agumagu or better still will amount to a review of the said judgment.
He also submitted that a Court can set aside its own judgment for reasons bordering on irregularity, fraud amongst others. He reproduced their submissions on the issue from paragraphs 4.46 – 4.70 at Pages 496-504 of Volume 2 of the Record of Appeal.
He argued that the lower Court discountenance the cases cited by the Appellant as not being on all fours with the present case but did not give particulars of the irrelevance. He referred to the case of Boniface B. Gwar vs. S. O. Adole (2002) LPELR – 7080 (CA) Per Mangaji, JCA (P. 40 – 41, Paras. F – A).
He stated that the 1st and 2nd Respondents did not deny or lead evidence that the Judgment sought to be set aside was obtained by fraud, misrepresentation and/or concealment of facts and that where they failed to do so, the Appellants had not proved any indices for the lower Court to do the needful. That the 1st and 2nd Respondents instituted Suit No. PHC/1134/1997 with the 1st Appellant as Defendant (which was later withdrawn) and PHC/1445/2000 with the Rivers State Government as Defendant and obtaining Judgment at the back of the 1st Appellant was an abuse of Court process. He submitted that it is settled law that parties interested in the subject matter of a suit must be joined as parties and failure to do so renders any decision null and void.
On issue two, 1st and 2nd Respondents’ counsel submitted that the trial Court was right when it refused to set aside the judgment of Hon. Justice P.N.C Agumagu delivered on 25/07/2001. That a Court lacks jurisdiction to review or sit on appeal over the judgment of a Court of coordinate jurisdiction except in exceptional circumstances. Reliance was placed on the cases of Okoye vs. Nigerian Cons. Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) Pg. 501 at 547 – 548, Paras. G-A and Alonge vs. Fehintola & Sons (2019) LPELR – 48516 (CA).
He argued that the Appellants failed to establish that the judgment of Hon. Justice Agumagu was a nullity, that same was obtained by fraud or that there was any procedural irregularity in the proceedings that led to the judgment.
He submitted that the non-joinder of the Appellants in PHC/1445/2005 does not render the proceedings void. He referred to the cases of Alonge vs. Fehintola & Sons (Supra), Umez Engineering Construction Ltd & Anor vs. Alozie (2018) LPELR – 4465 (CA).
Counsel stated that it is the prerogative of the Claimants to determine who to sue. Relied on the case of Sifax (Nig.) Ltd. vs. Migfo (Nig.) Ltd. (2018) 9 NWLR, Pt. 1623 Pg. 138 at 194 – 195, G – H.
It was also submitted that the mere filing of two actions against separate parties on the same subject matter does not amount to an abuse of Court process. Counsel urged this Court to resolve issue two in favour of the 1st and 2nd Respondent and dismiss the appeal.
ARGUMENTS ON ISSUE THREE
On issue three, Appellants’ counsel submitted that the lower Court was wrong to have descended into the arena and made decisions relating to the routine renovation work embarked upon by the 2nd Appellant. He submitted that the lower Court cited the cases to the effect that where a litigation is pending, the decision of Court binds not only the litigants but those who drive title under them by alienation made pending the suit whether the alienee had or had no notice of the pendency of the proceedings. Relied on the case of MTN Nigeria Communications Limited vs. Mr. Ganiyu Sadiku (2013) LPELR – 21105 (CA) and stated that the principle has no place in the extant case having regard to the state of pleadings and evidence led.
He urged the Court to allow the appeal and grant all the reliefs sought.
On issue three, 1st and 2nd Respondents’ counsel submitted that the trial Court did not descend into the arena of conflict when it made determination on the renovation going on the property in dispute. That the trial Court visited the locus in quo and the proceedings constitute evidence which the Court can rely on. He referred to the case of Mafulul & Ors vs. Takwen & Ors. (2018) LPELR – 45635 (CA) Pages 33-36.
He was of the view that when the Appellants instituted this suit in 2003, they choose to carry out renovation work knowing the title to the property was in dispute. That the 1st and 2nd Respondents pleaded and gave evidence that the Appellants forcefully moved into two of the houses on the property in dispute.
He submitted that the observation of the Court was just an obiter dictum and not the ratio decidendi of the Court. That it is trite law that issues for determination must be distilled from the grounds of appeal which must be predicated upon the ratio decidendi of the decision appealed against. Reference was made to the case of Oleksandr & Ors vs. Lonestar drilling Co. Ltd. & Anor (2015) LPELR – 24614 (SC).
The Court was urged to strike out ground 6 of the Notice of Appeal and issue three of the Appellants formulated therefrom.
Appellants’ reply on points of law was filed on 08/03/2022 and settled by Echezona Chukwudi Etiaba SAN. Counsel for the Appellants stated that the 1st and 2nd Respondents filed a Counter-Claim and also had the burden of proof of proving their title. He stated that all the Exhibits tendered by the Appellants firmly proved the transaction with Late B.M.C Etiaba and that the law is that every paragraph in a Statement of Defence is deemed to have been denied and even where there is no reply to a Statement of Defence or Counter Claim, it is still not fatal for as long as the Plaintiffs claim succeeded. He placed reliance on the cases of Akeredolu vs. Akinremi (1989) 3 NWLR (Pt. 108) 164 at 172, Aloysius Akpaji vs. Francis Udemba (2009) LPELR – 371 (SC) Per Ogbuagu, JSC (PP 19-20) Paras. C-A and Dabup vs. Kolo (1990) 9 NWLR (Pt. 317) 254 at 270 – 281.
Counsel for the Appellants prayed this Court to allow the appeal and grant the reliefs sought.
RESOLUTION OF THE ISSUES
Since the issues for determination formulated by both parties are almost the same, the issues will be resolved on the basis of the set of issues formulated by the Appellants’ Counsel.
ISSUE ONE
A starting point in examining what transpired at the trial Court will be to signpost certain legal principles. In Idundun vs. Okumagba (1976) 9-10 SC 227, the Supreme Court said:
“In a case for declaration of title to land, a person claiming title to land has the duty to prove his title through any of the five ways of proving title to land which are:
1. By Traditional evidence;
2. Production of document of title
3. Acts of ownership and possession by a person (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership.
4. Acts of long possession and enjoyment of land, and
5. Proof of probability under the Evidence Act, such as proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.”
This has been followed in a plethora of cases. See Opara vs. Dowel Schlumberger (1995) 4 NWLR (Pt. 390) 440, Nwadi vs. Okon (1998) 1 NWLR (Pt. 535) 573, Omoregie vs. Odugiemwanye (1985) 2 NWLR (Pt. 5) 41.
An action for declaration of title must be backed up by evidence. Even where a Defendant has not called a witness, the Plaintiff must adduce evidence to prove his case. See Ani vs. Nna (1996) 2 NWLR (Pt. 1449) 101, Badejo vs. Fed. Min. of Education (1996) 8 NWLR (Pt. 464) 15.
In a claim for a declaration relating to title to land, the Claimant/Counter Claimant must succeed on the strength of his own case and not on the weakness of the case of his opponent. Inspite of the failure of the Appellants to file a defence to the counter-claim, the Respondents/Counter-Claimants still have a duty of proving their case. They must lead evidence to support their pleadings even if the Appellants have admitted the claim. See Ilori & Ors vs. Ishola (2018) 15 NWLR (Pt. 1644) 77, Nkwocha vs. Offurum & Ors (2002) 5 NWLR (Pt. 701) 506, Bello vs. Eweka (1981) 1 SC 101.
In Ogbonna vs. A. G. Imo State (1992) 1 NWLR (Pt. 220) 647 at 698, Apata JSC said:
“Failure of a Plaintiff to file a defence to a counter-claim may not be disastrous if he succeeds in his claim. His success may render useless the counter-claim depending on the nature of the counter-claim. However, where he fails in his claim, as in this case and had filed no defence to the counter-claim, the defendant’s claim in his counter-claim remains uncontroverted. If however, the claim in the counter-claim is for a declaratory right the defendant will still have to satisfy the Court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.”
See also Dabup vs. Kolo (1993) 9 NWLR (Pt. 317) 254 and Nigerian Housing Development Society Ltd vs. Mumuni (1972) 2 SC 57. One of the golden trends that runs through our jurisprudence is that evaluation of evidence and ascription of probative value thereto, is the exclusive preserve of the trial Court. See Usufu vs. The State (2007) 3 NWLR (Pt. 1020) 94, Gundari vs. Nyako (2014) 2 NWLR (Pt. 1391) 211.
An appellate Court will not substitute its own views for that of the trial Court which had the opportunity of seeing and hearing witnesses. See Ismail vs. FRN (2020) 2 NWLR (Pt. 1707) 85, Oguntade vs. Oyelakin (2020) 6 NWLR (Pt. 1719) 41.
An appellate Court can only interfere with this process when the same is perverse. See Offordile vs. Offordile (2019) 16 NWLR (Pt. 1698) 189, UBN vs. Chimezie (2004) 9 NWLR (Pt. 1411) 166.
In the instant case, after evaluating the testimony of the witnesses and evidence tendered, the learned trial Judge found for the 1st and 2nd Respondents.
Part of the Judgment of the learned trial Judge’s findings at pages 768-769 Vol. 2 of the Record of Appeal will be reproduced here:
“In the instant case, the 1st and 2nd Defendants/Counter-claimants have pleaded and led evidence to show that the Certificate of Occupancy Exhibit J was granted to the 1st Defendant from the 17th day of January, 1992. There is evidence to show that the said Certificate of Occupancy was cancelled and another Certificate of Occupancy granted to the 3rd Defendant.
I have also held in this Judgment that the said revocation of the 1st Defendant’s Certificate of Occupancy was wrongful void and of no effect. The judgment of the Honourable Justice P.N.C. Agumagu tendered as Exhibit L also cancelled and declared the revocation of the 1st Defendants Certificate of Occupancy null and void and went ahead to set aside the Certificate of Occupancy issued to the 3rd Claimant.
The 1st and 2nd Defendants in my humble opinion have satisfied this Court that the 1st and 2nd Defendants/counter-claimants are still the owners of the said property in dispute in this suit.
It is also clear that by the Exhibit F tendered by DW1, the 2nd Defendant became the owner of the said property by virtue of Exhibit F which is the Deed of Assignment between 1st and 2nd Defendants/Counter-claimants.
The pleadings and evidence of the Claimants and the 1st and the 2nd Defendant/counter-claimants shows that B.M.C. Etiaba was the original owner of the land in dispute who eventually in 1977 passed his title to the Rivers State Government by means of acquisition and payment of adequate compensation to the B.M.C Etiaba. The Rivers State Government, through its Rivers State Housing and Property Development Authority, then sold the land in dispute to the 1st Defendant in 1992 as seen from the Exhibits G and H tendered, in this case. The 1st Defendant took possession and again resold his interest in the land in dispute to the 2nd Defendant.
It must be noted that the wrongful revocation of the right and Certificate of Occupancy of the 1st Defendant/counter-claimant and the valid subsisting judgment of the Hon. Justice P.N.C. Agumagu clearly presented before this Court the root of title of the 1st and 2nd Defendants/counter-claimants.
My humble opinion is that the 1st and 2nd Defendants/counter-claimants have proved their root of title to the property in dispute as required by law. See the case of Abdullahi v. Hedima (2011) 1 NWLR (Pt. 1230) 42 at 58 Paras. D-E at Pg. 62 Paras. F-G.”
For purposes of appreciating the dynamics of the evaluation of the evidence by the trial Court, it is necessary to identify the Exhibits referred to by the learned trial Judge in his judgment. Thus:
1. Exhibit F – Deed of Assignment between the 1st and 2nd Respondents dated 16/10/2001 and registered as No. 66 at page 66 in Volume 276 of the Land Registry in the office at Port Harcourt.
2. Exhibit G – Sales Agreement between Rivers State Housing and Property Development Authority and the 1st Respondent dated 6/1/1992 and registered as No. 55 at Page 55 in Volume 170 of the Lands Registry in the office at Port Harcourt.
3. Exhibit H – Letter dated 21st February, 1992 written by Rivers State Housing and Property Development Authority to the Tenants/Occupants of the property in dispute informing them of the purchase of the property by the 1st Respondent.
4. Exhibit J – Certificate of Occupancy granted by Rivers State Government to the 1st Respondent dated 30/4/1993 and registered as No. 87 at Page 87 in Volume 193 of the Land Registry in the office at Port Harcourt.
5. Exhibit K & K1 – Teller and Receipt for deposit for purchase of the property in dispute by the 1st Respondent.
6. Exhibit L – Certified True Copy of Rivers State of Nigeria Official Gazette No. 13 of 27/10/1994.
All of these Exhibits show transactions between Rivers State Housing and Property Development and the 1st Respondent on the one part and the 1st and 2nd Respondent on the other part. There is however a vital missing link here. That is, how did Rivers State Government acquire the property?
The Supreme Court in Ezeanah vs. Attah (2004) 7 NWLR (Pt. 823) 469, 501 per Tobi JSC stated as follows:
“A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had better title to the land before the issuance of the Certificate of Occupancy then the Court can revoke it.”
SeeRomaine vs. Romaine (1992) 4 NWLR (Pt. 238) 650 at 662 Para. E-G Per Nnaemeka Agu J.S.C.
“I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant. See Idundun vs. Okumagba (1976) 9-10 S.C. 227; Piaro vs. Tenalo (1976) 12 S.C. 31, p. 37; Nwadike vs. Ibekwe (1987) 4 NWLR (Part 67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:
(i) Whether the document is genuine and valid;
(ii) Whether it has been duly executed, stamped and registered;
(iii) Whether the grantor had the authority and capacity to make the grant;
(iv) Whether the grantor had in fact what he purported to grant; and
(v) Whether it has the effect claimed by the holder of the instrument.”
In the instant case, in an attempt to establish 1st Respondent’s root of title, in consonance with the above cited authorities, Exhibit N was tendered by the 1st and 2nd Respondents at the trial Court. Exhibit N is captioned “Memorandum submitted by the Hon. Commissioner for Lands and Survey”. The memorandum is a report with recommendation to the Executive Council of Rivers State for approval.
Paragraphs 3, 4, 7, 8 and 9 will be reproduced here:
“Between 1976 and 1977 this Ministry has had time to more carefully re-examine the buildings listed on Annex A with regard to their location, state of repair, and usefulness to government. Most of the buildings have also been valued by the Abandoned Property Implementation Committee (A.P.I.C.) and therefore we now know how much Government must pay if all the buildings on this list are to be retained.
Council should also note that between 1970 and 1975 Government had paid for a total of 166 houses out of numerous other houses that were acquired. This list of houses fully paid for is attached as Annex B. We have also examined this list and consider that some of the houses in this list should be retained by Government and the rest sold by the A.P.I.C. to the general public.
There is yet a third category of acquired houses which for various reasons are being considered for release either to their original owners or to indigenes of this State. In the case of releases to non-indigenes, the applicants have made passionate appeals for release of these houses to them on the grounds that they have no other landed properties elsewhere outside Port Harcourt. The details of these properties are submitted in Annex C for consideration.
All the acquired properties on Annex A numbered from 79 to 143 are located at the Diobu G.R.A. 1 and are presently occupied by the Armed Forces (Although a few have been released by the Armed Forces for use by civil servants). The Army occupation of these houses is expected to continue indefinitely until accommodation is available at the Army barracks for the officers occupying these houses. It is therefore recommended that the houses should be permanently acquired by Government and that arrangements should be made for the occupants or the Ministry of Defence to pay rents to the State Government in respect of such houses as are officially requisitioned by the Armed Forces.
With regard to the 166 abandoned properties which Government acquired and paid compensation in full to their owners as shown in Annex B, only a few of these houses are found to be suitable for Government use. It is therefore recommended that those suitable for Government use should be retained permanently by Government and the rest handed over to the A.P.I.C. for sale to the general public. Those recommended for permanent retention by Government are submitted as Annex D.”
Interestingly, the 1st and 2nd Respondents (as Defendants/Counter-Claimants) tendered Exhibit N which Annexure A but Annexure B that would have shown the property acquired and compensated for (in line with paragraph 4 of Exhibit N) was not tendered in evidence.
I find that Annexure B was deliberately withheld and that if it had been tendered, it would have shown that the Rivers State Government did not acquire and pay compensation for the property in dispute. See Aremu vs. Adetoro (2007) 16 NWLR (Pt. 1060) 244 at 261 Paras. G-H Per Tobi, JSC.
“Although the Survey Plan was averred to in Paragraph 5 of the Amended Statement of Claim, it was not tendered in evidence. Why? As I said earlier in this judgment, this is a case where a Court of law can invoke Section 149 (d) of the Evidence Act that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
Please note Section 149 (d) of the Evidence Act 2004 is now Section 167 (d) of the Evidence Act, 2011.
Accordingly, the 1st and 2nd Respondents have failed to establish the due acquisition of the land in dispute and payment of compensation mandatorily required by Section 44(1) (a) of the Constitution FRN 1999 as amended and Section 29(1) of the Land Use Act 1978.
In proof of title at the trial Court, the Appellants tendered several documents that were admitted in evidence and are relevant in determining this appeal amongst which are:
1. Exhibit A – Indenture made 23/1/65 between Late B.M.C. Etiaba and the 1st Appellant.
2. Exhibit A1 – Power of Attorney donated by B.M.C. Etiaba to the 1st Appellant.
3. Exhibit A2 – Agreement made 18/11/65 between Chief Daniel Ngba and Sunday Ngba on the one part and the Appellant on the other part.
4. Exhibit B1 – Receipt of Building materials dated 18/11/65.
5. Exhibit B2 – Receipt for removal of kitchen of the land in dispute dated 18/11/65.
6. Exhibit C – Receipt for lease of the property in dispute for 3 years commencing 1/1/1966.
7. Exhibit C1 – Rent Receipt for one year from 1/12/2000 dated 9/3/2001 issued by the 3rd Appellants.
8. Exhibit C2 – Receipt for repair work carried out on the property dated 21/9/2001.
9. Exhibit C3 – Rent payment to the Appellant dated 9/2/66.
10. Exhibit D1 – Agreement dated 7/9/1966 made between Emmanuel N. Chinda and the Appellant.
11. Exhibit D3 – Proceedings and Judgment in Suit No. 335/65.
12. Exhibit D5 – Letter dated 7/7/04 by the Appellant to the Permanent Secretary, Ministry of Defence.
13. Exhibit D6 – Certificate of Occupancy by Rivers State Government registered No. 77 at Page 77 in Volume 214 of Lands Registry in the office at Port Harcourt
14. Exhibit D11 – Letter dated 5/4/1994 written by the 1st Appellant to the Military Administrator, Rivers State.
15. Exhibit D14 – Letter from Nigerian Army dated 22/11/89 to the Appellant Re-requisitioning the property in dispute.
16. Exhibit E – Appellant’s dispute Survey Plan.
An evaluation of the Exhibits reveal that two parcels of land make up the land in dispute namely: Plot 2 Birabi Street, G.R.A., Phase I, Port Harcourt and an adjacent land. Whilst Plot 2 measures approximately 2545.05 square meters, the adjacent land measures approximately 901.618 square meters. See Exhibits A, A1, A2, D1, D6, D11, E and J.
It is noteworthy that whilst the Appellant tendered document of purchase of the Adjacent land (Exhibit D1), the 1st and 2nd Respondents did not tender any document of title in respect of the adjacent land. The Respondent did not also tender any dispute survey plan to contradict Exhibit E. Therefore, it is very clear that the area in dispute in this matter is Plot 2 Diobu, G.R.A. Layout otherwise known as No. 2, Birabi Street, G.R.A., Phase 1, Port HarCourt. See Exhibit D6 and J.
The root of title of the 1st and 2nd Respondents is Exhibit G and J both made in 1992.
Exhibits A, A1 show that the Appellants traced their root of title to as far back as 1965. Exhibits B, B1, B2, C, C1, C2, C3, D3, D5, D14 show that the Appellants have been in possession of the land directly and through their agents, assigns and tenants which evinced various acts of possession.
Conversely, the 1st and 2nd Respondents claimed that Rivers State Housing and Property Development Authority had tenants on the land that were issued a notice to quit upon purchase by them. They tendered exhibit H which was a letter dated 21st February, 1992 to the tenants/occupants on the property in dispute informing them of the purchase by the 1st Respondent. The tenants/occupants were not named.
A notice to quit is a process of Court addressed to a known tenant, not a notice at large and not a letter. See Sections 5, 6 and 7 of the Recovery of Premises Law of Rivers State, No. 16 of 1991 which came into force on the 2nd of January, 1992 and rendered as Chapter 109 of 1999.
The contention of the 1st and 2nd Respondents that the title documents of the Appellants are not registered is vitiated by the acts of possession established by the Appellants.
In Ogualaji vs. A. G. Rivers State (1997) 6 NWLR (Pt. 508) 209 at 224A Para. 225A, the Supreme Court per Adio J.S.C. held:
“The occupation of a house by a tenant or tenants put there by a landlord is, in law, regarded as the occupation of the house by the Landlord who put the Tenants there.”
Moreover, the Appellants having shown to have been in possession as far back as 1965 after payment of the purchase price for the land are entitled to be recognized as the title holders of the land in dispute pursuant to the provisions of Section 34 of the Land Use Act. See Adole vs. Gwar (2008) 11 NWLR (Pt. 1099) 562 at 588 Para H – 589 Para. A, where the Supreme Court Per Onu J.S.C held:
“Section 34 of the Land Use Act, as it were recognize the title of persons who were on the land before 1978 when the Act came into being. If the land was developed by such persons, they are deemed holders of statutory rights of occupancies issued by the Governor by virtue of Section 34 (2) and (3) of the Act. The right comes into existence automatically by the operation of law.”
The 1st Respondent have placed heavy reliance on Exhibit J, a Certificate of Occupancy issued in 1992 by the Rivers State Government long after the Appellants had begun to enjoy the aforesaid deemed statutory title since 1978.
The purported Certificate of Occupancy of the 1st Respondent is not a magic wand in view of the decision of the Supreme Court in Adole vs. Gwar (supra) at 590 Para A, 607-608 Paras. F-F Per Onu J.S.C. and Ogbuagu J.S.C. to the effect that once a statutory right of occupancy is issued when a deemed right exists and has not been revoked, the statutory right of occupancy becomes a worthless document because there cannot exist concurrently two title holders over one and the same piece of land.
Where there exists at the same time two rights of occupancy to different persons in respect of the same as in the instant case, one must of necessity be valid. The invalid one must be the latter right granted without first revoking the former one under Section 28 of the Act. Issuance of statutory right of occupancy is not a measure aimed at divesting customary title holders of their land holding without justification.
The circumstance in Adole vs. Gwar (supra) is similar to the situation of the parties in the instant appeal in that the deemed statutory title of the Appellants was not validly extinguished. Thus, I hold that Exhibit J was not validly issued to the 1st Respondent. Therefore, the 1st Respondent cannot pass a valid title to the 2nd Respondent. You cannot give what you do not have.
In this circumstance, I resolve issue one in favour of the Appellants.
ISSUE 2
This issue revolves around the doctrine of stare decisis which connotes the bindingness of decision of a Court on that same Court and all subordinate Courts to it when confronted with the same or similar issues in the future. See Chukwuma Ogwe vs. Inspector General of Police (2015) 7 NWLR (Pt. 1459) 505 at 523 Paras. E-H and Ardo vs. Nyako (2014) 10 NWLR (Pt. 1416) 591 at 626.
The Supreme Court has determined in a plethora of cases that judgments given without jurisdiction; judgments obtained by fraud or deceit and judgments that are a nullity are liable to be set aside ex debito justitiae.
In Obimonure vs. Erinosho (1966) All NLR 245 at 247, the Supreme Court per Brett, J.S.C. held:
“…a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order and that it is not necessary to appeal from it.”
In Skenconsult vs. Ukey (1981) 1 S.C. 6 at 26 and Adegoke Motors Limited vs. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 273, the Supreme Court held that it is the law that if an order of Court is a nullity, it can be set aside without much ado. Such judgments are rendered null and void by a fundamental defect and can be set aside.
The circumstances where the trial Court can exercise its inherent jurisdiction to set aside its previous decisions have been established by the Supreme Court and adumbrated in several cases including Alawiye vs. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570 at 620 Para E-H where the Supreme Court per M. D. Muhammed, J.S.C. stated:
“It is settled law that Courts of record, which the trial Court, the Court below and indeed this Court are, have the inherent jurisdiction to set aside their judgments or decisions under certain appropriate circumstances, which include:
(a) The judgment is obtained by fraud or deceit in the Court by one or more of the parties;
(b) The judgment is a nullity;
(c) It is obvious that the Court was misled to giving the Judgment under a mistaken belief that the parties consented to it;
(d) The judgment was given in the absence of jurisdiction;
(e) The proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; and
(f) Where there is fundamental irregularity.”
See also the Court of Appeal decision in Ibrahim vs. Gwandu (2015) 5 NWLR (Pt. 1451) 1 at 30 Para. F- G. The situation in this appeal can be situated within the purview of (b) and (f) above namely:
(b) The judgment is a nullity
(f) There was fundamental irregularity.
Paragraphs 3 and 4 of the judgment order in PHC/1445/2020 reproduced at Page 765 of the Record of Appeal demonstrates the nullity of that judgment and the fundamental irregularity embedded therein.
In those paragraphs, Agumagu J. held as follows:
“3. That this Honourable Court further declares that the subsequent grant of a new Certificate of occupancy registered as No. 77 at Page 77 in Volume 214 at Lands Registry, Port Harcourt, over the Plaintiff said piece or parcel of land, to a private interest called Anyaehie Foundation Company (Nig.) Limited, is an exercise in futility, therefore null and void, in that the Plaintiff’s original interest and right therein have not been lawfully revoked and/or determined.
4. That this Honourable Court hereby orders the Defendants to cancel and/or expunge from its records the purported Certificate of Occupancy made in favour of one Anyaehie Foundation Company (Nigeria) Limited over the Plaintiff’s said property at No. 2 Birabi Street, Old G.R.A., Phase 1, Port Harcourt which is registered as No. 77 at Page 77 in Volume 214 at the Land Registry, Port Harcourt and in its place restore the Plaintiffs right and certificate of occupancy, said to have been purportedly revoked.”
A cursory look at the parties will reveal that the holder of Certificate of Occupancy No. 77 Registered as No. 77 at Page 77 in Volume 214 of the Land Registry in the office at Port Harcourt, the third Appellant herein, whose Certificate of Occupancy was revoked by the Judgment of Agumagu J. was not a party to that Suit. The parties in Suit No. PHC/1445/2000 was:
TALFORD ONGOLO ESQ. – PLAINTIFF
(Suing by his Attorney Mr. Timipre Sylva)
AND
1. THE ATTORNEY GENERAL OF RIVERS STATE OF NIGERIA
2. THE GOVERNOR OF RIVERS STATE OF NIGERIA.
I am mindful of the provision of Order 13 Rule 16(1) of the High Court of Rivers State (Civil Procedure) Rules thus:
“No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interests of the parties actually before him.”
That rule did not authorize the High Court of Rivers State to make orders regarding the right and interests of persons that are not before it as parties.
It is instructive that in Oyeyemi vs. Owoeye (2017) 12 NWLR (Pt. 1580) 364 at 401 Para. H – 402, Para B Per Bage J.S.C. The Supreme Court held as follows:
“The effect of Order(s) made against persons not joined as a party is that such order is a nullity and of no effect. In our view, counsel to the Appellants was right to have submitted at pages 12 and 13 of its Brief of Argument, that where person who ought to be joined to the suit had orders made against them by the trial Judge, such proceedings ought to be a nullity, being a denial of the appellant’s right to fair hearing.”
Accordingly, the trial Court ought to have set aside the judgment of Agumagu J. in PHC/1445/2000 as a nullity and one infested with fundamental irregularity.
It is of no moment that the earlier Judgment was given by Agumagu J., who is different from Omereji J. as there is only one High Court of Rivers State. See Section 271 of the 1999 Constitution FRN (as amended) and the case of Adeyemi-Bero vs. L.S.P.D.C. (2013) 8 NWLR (Pt. 1356) 238 at 309 Paras. F-H Per M. D. Muhammed J.S.C. stated thus:
“Again, it is not the law that a Court cannot, in certain circumstances set aside its own judgment. Respondents’ desire by their Suit No. 249/97 is to have Alabi, J. set aside the null and void judgment of Ilori, J. in Suit No. M/415/95 which the trial Court on the authorities is empowered to do. The principle is that a person affected by the judgment of a Court which is a nullity is entitled to have the very Court set it aside ex debitio justitae. The Court in its inherent jurisdiction has the power to set aside its own Judgment or order made without jurisdiction or if same has been fraudulently obtained. In such a circumstance, an appeal for the purpose of having the null judgment or Order set aside cannot be said to be necessary.”
See also Eke vs. Ogbonda (2006) 18 NWLR (Pt. 1012) 506 at 526 Paras. A-D.
The Appellants were a necessary party to Suit No: PHC/1445/2000. Both parties had a Certificate of Occupancy over the same property. In connection with the foregoing, I resolve Issue 2 in favour of the Appellants.
ISSUE 3
The contention of the Appellants that the trial Court made a determination on a relief not sought for and it amounts to a descend into the arena of conflict is of no moment.
I agree with the 1st and 2nd Respondents’ Counsel that evidence led at a locus in quo forms part of the evidence a Court can rely on and also that the pronouncement of the trial judge was obiter.
Asides contending that the trial judge descended into the arena, the Appellants did not show how the pronouncement by the learned trial judge affected the decision of the lower Court.
The statement of the learned trial Judge quoted by Appellants’ Counsel was an Obiter dictum. It had nothing to do with the live issues for determination in the matter. See A. G. Kwara State vs. Lawal (2018) 3 NWLR (Pt. 1606) 266 and Omega Bank Plc vs. Government of Ekiti State (2007) All FWLR (Pt. 386) 658.
An appeal is against a decision of a Court and not an Obiter dictum. See Co-operative & Commerce Bank Ltd vs. Dan Okoro Ekperi (2007) 3 NWLR (Pt. 1022) 493, Anyaoha vs. Obioha (2014) 6 NWLR (Pt. 1404) 445.
For this reason, issue three is resolved against the Appellants.
Having resolved issues 1 and 2 in favour of the Appellants, I allow this appeal as being meritorious and Order as follows:
(1) The judgment of the High Court of Rivers State in Suit No. PHC/35/2003 delivered on 8/5/2019 by Hon. Justice G. O. Omereji is hereby set aside.
(2) The judgment of Hon. Justice P.N.C. Agumagu delivered on 25/7/2001 in Suit No. PHC/1445/2000 is hereby set aside pursuant to Section 15 of the Court of Appeal Act.
(3) The Certificate of Occupancy granted in favour of the 3rd Appellant and registered as No. 77 at Page 77 in Volume 214 of Lands Registry in the office at Port Harcourt is the only valid and subsisting Certificate of Occupancy.
No order as to costs.
TANI YUSUF HASSAN, J.C.A.: I agree.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA.
I agree with the reasoning and order stated in the judgment and which I hereby adopt as mine.
Appearances:
E. C. Etiaba, SAN, with him, V. N. Ovuaba, Esq. For Appellant(s)
O. Wali, SAN, with him, I. Martins-Essien, C. T. Amadi, and I. Oke-Chinda, Esq. – for 1st and 2nd Respondents For Respondent(s)
