ANYANWU v. CHUKWU & ORS
(2020)LCN/14804(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Tuesday, November 24, 2020
CA/E/510/2016
RATIO
LAND LAW: WAYS OF PROVING TITLE TO LAND
Without seeking further guidance apart from the apex Court’s often cited decision in IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are five ways of establishing title to land. Thus: (1) Traditional evidence (2) By production of document or documents of title (3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner (4) Acts of long possession of the land (5) 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. The proof of any one of the five ways is sufficient as each of them stands or fails on its merit. PER UMAR, J.C.A.
LAND LAW: MODES OF ACQUIRING TITLE
The following, among others, are modes of acquiring title to land:
a) By first settlement on land and deforestation of virgin land;
b) By conquest during tribal wars;
c) By gift;
d) By customary grant;
e) By sale;
f) By inheritance.
However, this Court held in ANUMUDU V. AGWAMBA (2019) LPELR – 48413 (CA) that:
“It is well established that before a Plaintiff can succeed in a claim for declaration of title to land, that Court must be satisfied as to the precise nature of the title he claims, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary grant, conveyance, sale under customary law, long possession or otherwise and there must be evidence establishing the title of the nature claimed.” PER UMAR, J.C.A.
PLEADINGS: DUTY OF COURT IN DETERMINATION OF A CASE HEARD ON THE BASIS OF PLEADINGS
In a case heard on the basis of pleadings, the Court will consider the entire pleadings to discover the case being canvassed by each party. See U.B.N V. AYODARE & SONS (NIG) LTD & ANOR. (2007) LPELR – 3391 (SC) AT 25 (D – G). The law is equally trite that in construing pleadings, each paragraph of the statement of claim or defence, as the case may be (the further amended statement of claim in the instant appeal), must not be considered in isolation, but in conjunction with the other paragraphs to properly ascertain the issues joined in the pleadings. See the case of OMINI V. ENO (2018) LPELR – 44195 (CA). PER UMAR, J.C.A.
WORDS AND PHRASES: DEFINITION OF PREMIUM
OXFORD DICTIONARY OF LAW, 9TH EDITION defines premium as “A lump sum that is sometimes paid by a tenant at the time of the grant, assignment or renewal of his lease or tenancy…” As a matter of fact, payment of annual rent is also a feature of a tenancy or lease and not that of an outright sale. This is because when a person purchases land, the land becomes his property, has no reason to pay any money to anyone else in respect of the land that has become his own. If any customary law exists where annual rents and premium are paid in respect of land acquired, the onus was on the Appellant to prove same at trial, which he did not do. PER UMAR, J.C.A.
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
CLEMENT A. C. ANYANWU APPELANT(S)
And
- DAMIAN CHUKWU 2. EDWIN OKOR 3. FRANCIS OKOR 4. RAYMOND OKOR 5. OGBU UVII 6. JOHN ALIKE 7. SIMON OGBUEZI 8. PIUS OGUDU 9. AJALI CHUKWU 10. AJALI OGA 11. OKOR OKORO 12. CHIMEZIE OKOR 13. MIKE NWAOBIA 14. CHIBUIKE UVII 15. LUKE AKPUOGWU 16. CHUKWU IGWE 17. JOHN OGUDU 18. OGUDU NWAOBIA 19. OGA UVII 20. SUNDAY AJALI 21. EMMA LUKE 22. MAZI NNACHI 23. PAUL CHUKWU (For Themselves And As Representing Other Members Of Amakpu Kindred Mgbede Akaeze) RESPONDENT(S)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State in the Ivo Judicial Division, delivered by Honourable Justice I.P. Chima on 31st May, 2016 wherein the learned trial Judge partly granted the reliefs sought by the Appellant against the Respondents.
BRIEF FACTS OF THE CASE
The Appellant commenced the action at the lower Court via a Writ of Summons dated 20th April 2005 and filed on the same day. (See pages 1-2 of the record of appeal). In his Further Amended Statement of Claims contained at pages 153-159 of the record of appeal, the Appellant sought the following reliefs:
A. “A declaration of Court that the plaintiff is the person entitled to apply for the customary or statutory right of occupancy of that certain piece or parcel of land known as and called OGWUGWUANI OVIANGARA being and situate at Mgbede Akaeze, the annual value whereof is N2,000.00 (two thousand Naira).
B. The sum of one hundred and forty-six thousand five hundred Naira (N146,500.00) being special damages for the destruction of 1042 citrus trees
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planted by the plaintiff on the land in dispute.
C. Twenty million Naira being general damages for the destruction of the 1042 stands of citrus trees and for trespass upon the said land.
D. Perpetual injunction restraining the defendants by themselves, agents and privies from further acts of trespass on the said land or from in any way disturbing the possession of the plaintiff on the said land.”
In proof of his case, the Appellant as plaintiff at trial called three witnesses. It was the case of the Appellant that in the 1980s, Imo Agricultural Development Programme (ADP) persuaded him to acquire land not less than forty (40) hectares for agricultural purposes. That he acquired land offered by Amapku kindred of the Respondents and he paid the premium on the land as well as annual rent up to year 2005 before dispute arose in respect of the land sometimes in the year 2004. The Respondents on the other hand called six witnesses in rebuttal of the Appellant’s claims. It was their case that as against the claim that they sold the land in dispute to the Appellant, they only leased twenty (20) plots to him and that most of the
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conditions attached to the lease were not fulfilled by him.
Trial closed and upon the final addresses by counsel to the parties, the learned trial Judge partially granted the Appellant’s claims as follows:
“(a) That the Plaintiff is the person entitled to apply for the Customary or Statutory Right of Occupancy of that 20 plots land of 50ft by 100ft each of the land known as and called OGWUGWUANI OVIANGARA verged PINK in Exhibit U being and situate at Mgbede Akaeze without any condition attached to it.
(b) That prayer B is refused.
(c) That prayer C is also refused.
(d) That the Defendants by themselves, agents and privies and hereby restrained by way of perpetual injunction from further acts of trespass on the said 20 plots of land or from in anyway disturbing the possession of the said 20 plots of land.”
Dissatisfied with the judgment of the trial Court, the Appellant commenced this appeal via an amended Notice of Appeal dated 18th February, 2019 and filed on 9th April, 2019. The amended notice of appeal contains ten grounds of appeal. The grounds of appeal alone without the particulars are as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“A. GROUND ONE: Error in Law:
The learned trial judge erred in law when in his interlocutory decision he held that the survey plan attached to the Deed of Power of Attorney executed by parties in 1992 support the Deed of Power of Attorney and showed the land allegedly donated in the transaction but in his final judgment reversed his decision to hold that there is ample evidence that the land subject matter of the transaction is as shown in the area verged PINK in Exhibit U.
B. GROUND TWO: Error in Law:
The learned trial judge erred in law when he treated DW3 (T.C. Ugwele) as an expert and accepted his (DW3) evidence as expert evidence.
C. GROUND THREE: Error in Law:
The learned trial judge erred in law when he did not appreciate the pleadings and evidence of the parties before relying on the evidence of the Supreme Court in Ogundalu v MacJob (2015) 8 NWLR (pt 1460) 96 at 101 to hold that plaintiff proved his case over a smaller portion of the land that he claimed and thus awarded twenty plots of land to plaintiff as shown in Exhibit U to plaintiff.
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- GROUND FOUR: Error in Law:
The learned trial judge erred in law when he held thus “…Similarly, had the judge not adjudged the transaction between the Plaintiff and the Defendant as a customary land sale, Exh. L would still have been unenforceable as the Plaintiff has not complied with all the conditions therein such as training of two of the Defendants children to university level and four of their children in secondary school level.
E. GROUND FIVE: Error in Law:
The learned trial judge erred in law when he failed to appreciate the pleading and evidence of the parties before he held thus: “Firstly it was part of the evidence of PW2 that part of the land in dispute in this suit belongs to his family or kindred of Umugweze. This means that the land in the survey plan attached to Exh. L belonds to Umugweze; which means that the land in dispute with regard to Exh. L is uncertain and imprecise.
F. GROUND SIX: Error in Law:
The learned trial judge erred in law and did not appreciate the pleading of the parties and evidence of PW1 (Thomas Eneh Ogbodo) when he held that witness denied that he issued Exhibits R23, R24 and R25 and
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therefore the exhibits are of doubtful origin.
G. GROUND SEVEN: Error in Law:
The learned trial judge erred in law when he failed to consider the evidence of Chief Amaechi (Exhibit P) in the proceeding but rather struck it out in his judgment on the ground that Chief Ude Chukwu was not cross-examined in that previous proceedings.
H. GROUND EIGHT: Error in Law:
The learned judge erred in law when he failed to grant the reliefs of the Plaintiff when there are ample evidence from the pleading and evidence of the Plaintiffs and witnesses to justify its beacon granted.
I. GROUND NINE: Error in Law:
The learned trial judge erred in law when he failed to resolve the issue of fraud properly raised by the Plaintiff merely holding that the denial by Defendants is not enough to prove fraud. As fraud being a crime, it must be proved beyond reasonable doubt.
J. GROUND TEN: Error in Law:
The judgment of the lower Court is unreasonable and unwarranted having regards to the weight of evidence.”
In line with the rules and practice of the Court, parties filed and exchanged their respective briefs. The
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Appellant’s brief of argument is undated but filed on 9th April, 2020. The brief was settled by OKOH CHIKE MARTINS, ESQ. who raised two issues for determination of this appeal thus:
“ISSUE NO. ONE
From Grounds ONE, TWO, THREE, FOUR, FIVE, SIX, SEVEN, EIGHT AND TEN OF THE GROUNDS: WHETHER OR NOT FROM THE PLEADINGS AND EVIDENCE BEFORE THE LOWER COURT, THE PLAINTIFF DID NOT PROVE HIS CASE TO BE ENTITLED TO JUDGEMENT?
ISSUE NO. TWO
From Ground NINE: WHETHER THE PLAINTIFF DID NOT PROVE FRAUD AGAINST COUNSEL, DEFENDANTS AND WITNESSES?”
On issue one; Counsel submitted that the Appellant proved the boundaries of the land through oral evidence. He also submitted that all the conditions attached to the transaction between the parties were fulfilled by the Appellant, except the award of scholarship scheme which could not continue when the Respondents failed to nominate candidates for the award. Counsel further submitted that the parties executed a Deed of Power of Attorney and same was admitted in evidence without objection and that the Respondents only objected to the admissibility of the survey plan attached, an
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objection which according to counsel was overruled by the trial Court. He submitted that DW3 was not qualified to give evidence as an expert as he did not state his qualifications as required by law. Counsel therefore submitted that the survey plan tendered by DW3 which was admitted and marked Exhibit U was incorrectly admitted in evidence. Counsel submitted that the land granted to him by the Respondents’ kindred could not have been less than 40 hectares as that was the minimum land size required by Imo ADP for the project embarked upon by him. He therefore urged this Court to resolve the issue in favour of the Appellant and against the Respondents.
On the second issue distilled by Counsel, he submitted that the Appellant through circumstantial evidence, proved allegations of fraud against the Respondents beyond reasonable doubt. He argued that the allegations of crime can be proved by circumstantial evidence. He referred to MUSTAPHA MOHAMMED & ORS V. THE STATE (2007) 4 SCNJ 117 at 128. On a final note, Counsel urged the Court to set aside the decision of the trial Court and to enter judgment for the Appellant in terms of his claims.
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CHUBUEZE OKEREKE, ESQ., settled the Respondent’s brief of argument dated 29th April, 2020 and filed on the same day wherein counsel formulated two issues for determination as follows:
“(1) Whether from the facts and circumstances of this case, the Learned Trial Judge was right when he partly granted the claims of the Appellant despite the fact that the Appellant did not prove any of his claims with credible, consistent and legally admissible evidence as required by law. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, and 10).
(2) Whether from the facts and circumstances of this case, the Learned Trial Judge was right when he held that the criminal allegation of fraud against the Respondents must be proved beyond reasonable doubt. (Ground 9).
In support of issue one; Counsel submitted that the irrevocable power of Attorney together with the attached survey plan tendered by the Appellant is not a valid document. He also submitted that admitting a registered document in evidence does not automatically prove that the property in question belongs to the grantee. It was the further submission of Counsel that title to land cannot be acquired by Power of Attorney;
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neither are payments of premium and annual rents features of a valid land sale. He relied on the cases of ABU V. KUYABANA (2002) 4 NWLR (Pt. 758) 599 at 614; UDE V. NWARA (1993) 2 NWLR (Pt. 278) 638. He submitted that the fact that Respondents’ Counsel failed to object to the tendering of certain documents during trial does not stop the trial Court from expunging same while writing its decision. He placed reliance on the case of OGUNSINA V. MANATNMI (2001) 9 NWLR (Pt. 718) 286. Counsel also submitted that the contract between the parties is unenforceable as the Appellant failed to fulfill the conditions attached to the contract. He referred to the case of TSOKWA OIL MARKETING CO. V. B.O.N. LTD (2002) 1 NWLR (Pt. 777) 163 at 196. He further submitted that the Appellant was unable to establish that it was the Respondents that carried out the alleged destruction of his citrus trees. He submitted that the Appellant failed to prove customary sale of land at the trial Court and was therefore not entitled to the 20 plots in respect of which judgment was given in his favour by the trail Court.
On the second issue raised by Counsel, he submitted that the
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Appellant did not prove allegations of fraud against the Respondents and their Counsel as required by law. Counsel finally urged this Court dismiss the Appellant’s appeal in its entirety with substantial costs.
APPELLANT’S REPLY BRIEF
In response to Respondents’ Counsel’s submissions, Appellant’s Counsel submitted that with where a trial Court reaches a decision on the admissibility of a document at an interlocutory stage, the Court cannot arrive at a different decision during judgment except where such document is inadmissible in law. Counsel submitted Exhibit K is admissible in law and the trial Court should not have reached a different decision in the judgment. Counsel submitted further that payment of premium and annual rents as well as other rites performed by the Appellant are features of sale of land under customary law. On a final note, Counsel urged the Court to disregard the submissions of Respondents’ Counsel in his brief of argument, set aside the judgment of the trial Court and give judgment for the Appellant in terms of his claims.
RESOLUTION:
I have read the record of appeal and the
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supplementary record of appeal duly compiled and transmitted to this Court. I have also read the briefs of the Counsel to the parties. I have as well considered the arguments canvassed on both sides and taken note of the issues distilled by the Counsel to both parties. From the Appellant’s grounds of appeal and the issues distilled by parties, I am of the view that the kernel of the Appellant’s complaint lies in the trial Court’s evaluation of the evidence adduced by parties in reaching the decision that is under appellate scrutiny. On this note, I have thus formulated the below stated issue for the determination of the appeal under consideration.
“Whether from the totality of the evidence adduced before the trial Court, the Appellant proved his case to entitle him to the reliefs sought in his Statement of Claim?”
It is beyond doubt that the central claim of the action borders on declaration of title to land. Without seeking further guidance apart from the apex Court’s often cited decision in IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are five ways of establishing title to land. Thus: (1) Traditional
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evidence (2) By production of document or documents of title (3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner (4) Acts of long possession of the land (5) 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. The proof of any one of the five ways is sufficient as each of them stands or fails on its merit. After having reviewed the evidence on record, it is crystal clear that the Appellant traced his root of title to the land to the Respondents; the Respondents on the other hand denied alienating their interest in the said land to the Appellant. The Respondents in rebuttal of the Appellant’s claim stated that a part of the land in dispute was leased to the appellant upon conditions which were not fulfilled by him. Premise on the above, it is inarguably correct to state that the parties are ad idem on the fact that the land in dispute originally belonged to the
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Respondents’ kindred. It is therefore clear that the relevant consideration in this Appeal is the mode of acquisition of title to land. The following, among others, are modes of acquiring title to land:
a) By first settlement on land and deforestation of virgin land;
b) By conquest during tribal wars;
c) By gift;
d) By customary grant;
e) By sale;
f) By inheritance.
However, this Court held in ANUMUDU V. AGWAMBA (2019) LPELR – 48413 (CA) that:
“It is well established that before a Plaintiff can succeed in a claim for declaration of title to land, that Court must be satisfied as to the precise nature of the title he claims, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary grant, conveyance, sale under customary law, long possession or otherwise and there must be evidence establishing the title of the nature claimed.”
In a case heard on the basis of pleadings, the Court will consider the entire pleadings to discover the case being canvassed by each party. See U.B.N V. AYODARE & SONS (NIG) LTD & ANOR. (2007) LPELR
14
– 3391 (SC) AT 25 (D – G). The law is equally trite that in construing pleadings, each paragraph of the statement of claim or defence, as the case may be (the further amended statement of claim in the instant appeal), must not be considered in isolation, but in conjunction with the other paragraphs to properly ascertain the issues joined in the pleadings. See the case of OMINI V. ENO (2018) LPELR – 44195 (CA). The Appellant at paragraph 4 – 13 of the further amended statement of claim averred as follows:
“4. In the 1980s when the Federal Government of Nigeria called on every Nigerian irrespective of his profession to embark on farming, the Imo State Government (now Ebonyi State Government encouraged the plaintiff to acquire land in the former Ohazora L.G.A for it to use as a demonstration farm. The plaintiff, through one Odunze who was then a schoolteacher at Mgbede Akaeze came to that community to acquire such land from Umu-Ukwueze kindred of that community.
5. The members of Umu-Ukwueze kindred showed to the plaintiff a large parcel of land. In 1987 when the negotiation for the acquisition of the land was
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in still in progress, (sic) the members of the Amakpu kindred approached the plaintiff to acquire their own land (now in dispute). The plaintiff considered both options and preferred the land now in dispute for its nearness to the road, the aforesaid Ufori Road.
13. The plaintiff however continued to farm on the said land from 1987 paying annual rents to the defendants and fulfilling all terms, conditions and stipulations contained in the power of attorney and has so paid the annual rent up to the year 2005. The plaintiff has also paid the premium of the land in full. The receipt in relation thereto dated 29th April, 1993 together with all receipts for payment of annual rent herein mentioned are pleaded.”
In paragraph 17 (b) and 18 of the same further amended statement of claim at page 157 of the record of appeal, the appellant averred further that:
“17 (b) In the year 2004, the defendants went upon the said land and destroyed some of the said crops planted first close to the twin agba trees and made cassava and late groundnut farm thereon.”
18. The plaintiff eventually reported the matter at the police area
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commander’s office at Afikpo whereat parties were invited. The said police area commander fixed the 20th day of October 2004 to visit the land and the people of Mgbede for investigation. Before the date fixed, the defendants went upon the land in dispute and destroyed all the citrus, mangoes, oranges, kolanuts and pears which the plaintiff established between the year 2002 to 2004, totaling 1042 some of which had started to flower or fruiting. The first defendant and some other defendants made cassava mound on several part of the farm to cover the holes left after the pulling out of the young trees.”
From the appellant’s averment reproduced above, he admitted that he paid both premium and annual rents on the land in question from 1987, the year he was let into the land in dispute by the Respondents to the year 2005. For almost two decades, the Appellant, a legal practitioner had been paying annual rent on a land he claimed he bought. How true can this be? I wonder why there was no squabble between the parties from the year 1987 when the Appellant dutifully paid his rents on the land in dispute till the year 2005 when the action
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culminating into the instant appeal was instituted. From the appellant’s narration of events in his further amended statement of claim, that things began to fall apart when Respondents denied the Appellant the opportunity of planting palm seeds on the land in dispute based on the fact that they have decided that no non-indigene of Akaeze would ever own land in Akaeze. The rancor was further compounded when the appellant stated that the Respondents sometimes in the year 2004, went into his land destroying his citrus tress which necessitated the lodging a complaint on at police station.
I still find it very hard to come to terms with the fact that the Appellant paid rents and premium on a land he claimed he bought for 18 solid years. OXFORD DICTIONARY OF LAW, 9TH EDITION defines premium as “A lump sum that is sometimes paid by a tenant at the time of the grant, assignment or renewal of his lease or tenancy…” As a matter of fact, payment of annual rent is also a feature of a tenancy or lease and not that of an outright sale. This is because when a person purchases land, the land becomes his property, has no reason to pay any money
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to anyone else in respect of the land that has become his own. If any customary law exists where annual rents and premium are paid in respect of land acquired, the onus was on the Appellant to prove same at trial, which he did not do.
Moreover, Exhibit R34 tendered by the Appellant which is at pages 41 – 42 of the record of appeal has as its heading “RE: LAND LEASE”. The Appellant is a lawyer who even represented himself at the trial Court. I believe that he knows better than to mistake a land sale transaction for a lease. The Respondents’ rebutted the appellant’s claim to the title and DW2, under cross examination at page 778 of the record of appeal testified that the gifts brought by the Appellant to the Respondents’ family were in respect of a lease transaction and not a sale. In similar vein, DW5 in paragraph 25 (e) of his Further and Better Statement on Oath averred that one of the conditions of the transaction between the parties was that the agreement would be reviewed every ten years (see page 478 of the record of appeal) and this piece of evidence was unchallenged by the Appellant. It is trite that a Court can
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receive and act upon unchallenged evidence. See UBA PLC V. PATKAN VENTURES LTD (2017) LPELR – 42392 (CA).
To add credence to the fact that the transaction between the parties can at best be regarded as a lease and not a sale of land by any stretch of imagination, review of agreement is unknown to a sale of land transaction. From the pleadings, appellant is seeking a declaratory relief, I cannot but come to a viable conclusion that the transaction between the parties is a lease and not sale of land.
I am not oblivious of the trite principle of law that the evaluation of evidence and ascription of probative value is the primary duty of the trial Court; however, where a trial judge has abdicated the duty and misused the opportunity to so do, the appellate Court is in good position to do so. In the case of IWUOHA & ANOR V. NIPOST LTD & ANOR (2003) LPELR – 1569 (SC) P. 39 paras F-G held as follows:
“However, where the evaluation of the evidence by the trial Judge is perverse, in the sense that it is not properly borne out of the evidence before him, an appellate Judge is competent to re-evaluate the evidence on the records
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before him and come to a proper decision.”
In the instant appeal where evidence led before the trial Court pointed to the transaction between the parties being a lease rather than a sale but the trial Court held otherwise, I find that finding of the trial Court perverse. It is for this reason that I interfere with that finding of the trial Court and hold that the transaction between the parties was a lease and not a sale of land.
It is now a notoriously settled principle of law that issues in civil cases are proved on preponderance of evidence or balance of probabilities. See NNADI & ORS V. ODIKA & ORS (2017) LPELR – 43448 (CA). The first relief sought by the Appellant is of a declaratory nature. It is a settled principle of law that declaratory reliefs are not granted as a matter of course. A party who seeks a declaratory relief must establish justification for such relief by adducing cogent and credible evidence before the Court. If such a party refuses to adduce such evidence, even weakness in the case of the defendant cannot rescue his case. See OSUJI V. EKEOCHA (2009) LPELR – 2816 (SC); DANIA V. UNICAL & ORS (2019)
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LPELR – 48144 (CA). For the reasons set out above I hold that the Appellant failed to adduce credible evidence before the trial Court to entitle him to the declaration of title to the land in dispute. The Appellant’s claim for declaration of title hereby fails. Consequently, the trial Court’s decision granting the Appellant title to the customary or statutory right of occupancy of the 20 plots of land of 50ft by 100ft each of the land known as and called OGWUGWUANI OVIANGARA verged PINK in Exhibit U being and situate at Mgbede Akaeze without any condition attached to it is hereby set aside.
After having held that the agreement between the parties can be best described as a lease agreement, the trial Court rightly observed that the agreement cannot be enforced as the Appellant failed to comply with the terms as agreed by the parties thereto.
It is on the basis that the Appellant proved his claim for the 20 plots of land granted in relief (a) of the judgment that the trial Court went ahead to grant an order of perpetual injunction restraining the Respondents from further acts of trespass on the said 20 plots of land or from in anyway
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disturbing the possession of the said 20 plots of land.
Having held that the Appellant failed to lead credible evidence to the land in dispute inclusive of the 20 plots granted by the trial Court, I hereby hold that the Appellant is also not entitled to the order of perpetual injunction granted in his favour. The said order is hereby set aside.
The Appellant also claimed for damages for the alleged destruction of citrus fruits planted by him. After going through the pleadings and evidence led at trial, I could not find even a speck of credible or cogent evidence that supports the allegation that the destruction was carried out by the Respondents. As a matter of fact, as contained in the record transmitted to this Court, after speculating that the alleged destruction was carried out by the Respondents, the Appellant who testified as PW1 admitted under cross-examination at page 753 – 754 of the record that he did not witness the alleged destruction of the fruits. For sake of clarity, I take latitude to reproduce the excerpt of the Appellant’s testimony as follows:
“I also told the police that I had planted citrus trees on part
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of the land and the police now decided to visit the land. Before the date that the police fixed to visit the land, the defendants went and removed the citrus trees that I planted to remove any trace that I had planted citrus trees on the land…
Q: the alleged destruction of crops, did you witness it?
A: No.”
Flowing from the hills of the above, I therefore hold that the trial Court was right to have refused the Appellant’s claims for both general and special damages. I hereby resolve the sole issue distilled by this Court in favour of the Respondents and against the Appellant.
In conclusion, I hold that this appeal is lacking in merit and same is hereby dismissed. The decision of the High Court of Ebonyi State in the Ivo Judicial Division, delivered by Honourable Justice I.P. Chima on 31st May, 2016 wherein the learned trial Judge partly granted the reliefs sought by the Appellant against the Respondents is hereby partly affirmed. That part of the decision granting the Appellant title to the customary or statutory right of occupancy of the 20 plots of land of 50ft by 100ft each of the land
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known as and called OGWUGWUANI OVIANGARA verged PINK in Exhibit U being and situate at Mgbede Akaeze without any condition attached is hereby set aside. Parties shall bear their respective costs.
CROSS-APPEAL
This is a Cross-Appeal against that part of the judgment of the High Court of Ebonyi State, Ivo Judicial Division delivered by Hon. Justice I.P. Chima on 31st May, 2016. By a Notice of Cross-Appeal dated and filed on 8th August, 2016, the Cross-Appellants appealed against the part of the judgment of the trial Court granting title and injunction over the 20 plots of the land in dispute verged PINK in Exhibit U unconditionally to the Cross-Respondent.
The Notice of Cross-Appeal contains three grounds of appeal. The grounds without their particulars are as follows:
“GROUND ONE
The Learned Trial Judge erred in law when he held that the transaction between the parties was a land sale under native law and custom on the grounds that the Cross-Respondent paid the sum of N20,000 as premium to the elders of Cross-Appellants.
GROUND TWO
The Learned Trial Judge erred in law when after he found and held that
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the Cross-Respondent did not comply with all the conditions of the contract between the parties, he granted title and injunction unconditionally in respect of 20 plots of Ogwugwuani Oviangara land in favour of the Cross-Respondent.
GROUND THREE
The Learned Trial Judge erred in law when he granted title of 20 plots of Ogwugwuani Oviangara land to the Cross-Respondent based on sympathy and sentiments.
In observance to the Rules of this Court, parties filed and exchanged their briefs of argument while the Cross-Appellants also filed a reply brief. The Cross-Appellants’ brief of argument is dated 29th April, 2019 and filed on the same day. In the said brief, Counsel distilled two issues for determination thus:
“1. Whether from the facts and circumstances of this case, the Learned Trial Judge was right when he relied on customary land sale transaction to grant unconditionally 20 plots of Ogwugwuani Oviangara land to the Cross-Respondent. (Ground 1).
2. Whether from the facts and circumstances of the case, the Learned Trial Judge was right to have granted title and injunction to the Cross-Respondent unconditionally in respect of
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20 plots of Ogwugwuani Oviangara land based on sympathy and sentiments despite his decision that the Cross-Appellant did not comply with all the conditions of the transaction. (Grounds 2 and 3).
The Cross-Respondent’s brief of argument is dated 25th July 2019 and filed on 2nd December, 2019. Counsel formulated a lone issue for determination as follows:
“Whether or not the lower Court was right to rely on the Defendants’ (Cross-Appellants’) Pleadings and Exhibit U to award only 20 plots of land to Cross-Respondent (Plaintiff).”
On 15th September 2020 when the main appeal no: CA/E/510/2016 was heard, Counsel to both parties agreed that the issues raised in both the main appeal and the instant cross-appeal are interwoven and that the decision in the main appeal shall bound this cross-appeal.
I held in the main appeal that the contract between the parties constitute a lease of land. I also hold that the Cross-Respondent was unable to prove with certainty the parcel land over which he sought an order of injunction from the trial Court. For these reasons, I find absolutely no justification for the 20 plots of
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Ogwugwuani Oviangara land granted to the Cross-Respondent by the learned trial Judge and I equally find no justification for the injunction granted against the Cross-Appellants in respect of the said land. The learned trial Judge erred in law when he granted title 20 plots of Ogwugwuani Oviangara land to the Cross-Respondent unconditionally.
In the final analysis, I hereby hold that this cross-appeal succeeds. The part of the judgment of the trial Court delivered by on 31st May, 2016 by I.P. Chima, J where the learned trial Judge declared the Cross-Respondent as the person entitled to apply for the Customary or Statutory Right of Occupancy of that 20 plots land of 50ft by 100ft each of the land known as and called OGWUGWUANI OVIANGARA verged PINK in Exhibit U being and situate at Mgbede Akaeze without any condition attached to it is hereby set aside. The part of the judgment of the trial Court where the learned trial judge granted an order of perpetual injunction against the Cross-Appellant in respect of the said 20 plots of land is also set aside. I make no order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have
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had a preview of the lead judgment just delivered by my learned brother ABUBAKAR SADIQ UMAR, JCA. All the pertinent issues to the instant appeal matter have been exhaustively and meticulously dealt with and duly resolved in the said lead judgment. Indeed, I have nothing to add thereto. Thus, I agree with the reasoning and conclusion of my learned brother that the Cross-Appeal succeeds. I also adopt them as mine. I abide by the consequential orders made therein, inclusive of the one made with regard to costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ OMAR, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment of my learned brother, I equally find no merit in the appeal and also dismiss it.
On the cross-appeal, I adopt the reasoning and conclusion of my learned brother that the cross-appeal has merit. I adopt the consequential orders in the lead judgment as mine.
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Appearances:
J. NZE, with him, O. C. Martins For Appellant(s)
CHIBUEZE OKEREKE For Respondent(s)
