CHIEF DAMIAN NWANKWO & ORS v. PATRICK OKAFOR & ORS
(2019)LCN/13463(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/E/235/2014
RATIO
APPEAL: GROUND OF APPEAL: A GROUND OF APPEAL MUST ARISE FROM THE DECISION , RULING OR PRONOUNCEMENT OF A THE COURT
The law is trite that a ground of appeal must relate to or arise from the decision or ruling or pronouncement of the Court on the issue placed before the Court. A ground of appeal must be a challenge to the ratio decidendi of the judgment or the ruling. A ground of appeal is not formulated in abstract. There must be a clear connection between the grounds of appeal and the decision or ruling being appealed against. Where a ground of appeal does not relate to or emanate from the decision being appealed against, such ground of appeal hangs in the air, it has no leg to stand. It is incompetent and liable to be struck out. See KENTE V. ISHAKU & ORS (2016)LPELR-40788 (CA) AT 28-32 (F-D). MERCANTILE BANK OF NIG. PLC & ANOR NWOBODO (2005) LPELR-1860 (SC) AT 8-9 (A-E).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
APPEAL: GROUNDS OF APPEAL: CONTENT
Thus particulars of a ground of appeal highlight and give reasons for the complaint or alleged error or misdirection so that the other party will have a clear idea of what points are being canvassed against the judgment. See AWUSA V. NIGERIA ARMY (2018) LPELR-44377 (SC) AT 25-27 (F-A). Where a particular of the ground of appeal is not related to or flow from the ground, such a particular will be discountenanced. See STAR DEEP WATER PETROLEUM LTD V. & ORS V. A.I.C LTD. & ORS (2015) LPELR-25387 (CA) AT 13-16 (E-B). Particular (iii) of ground 4 of the ground of appeal which does not flow from the ground of appeal is hereby struck out.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
WHETHER ONE INCOMPETENT GROUND OF APPEAL CAN INVALIDATE THE WHOLE GROUND OF APPEAL
The Present position of the law is that one incompetent particular of a ground of appeal does not invalidate a ground of appeal when there are other particulars which can sustain the ground of appeal. See TOTAL UPSTREAM (NIG) LTD. V. A.I.C LTD & ORS (2015) LPELR-25388 (CA) AT 22-24 (C-E). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: DECARATION OF TITLE TO LAND:ON WHOM LIES THE BURDEN OF PROOF
The law is settled that a party claiming declaration of title to land has the burden to prove his entitlement to the declaration he claims. He must do so on the strength of his own case and not on the weakness of the defendant?s case. See BENJAMIN V. KAILO (2018) NWLR (PT.1641) 38 AT 59. OLODO & ORS V. JOSIAH & ORS (2010) LPELR-2584 (SC) AT 40 (C-D).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
WHERE A DEFENDANT COUNTER CLAIMS FOR DECLARATION OF TITLE , HE HAS THE SAME BURDEN OF PROOF AS THE CLAIMANT
It is also settled that where a defendant counter claims for declaration of title in respect of the same land as the claimant, he has the same burden as the claimant. He must also prove his entitlement to declaration of title with cogent and credible evidence because a counter claim is a cross action, separate and distinct from the main claim. Failure of the main claim does not automatically translate to the success of the counter claim. See AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR-43463 (SC) AT 22(B-D).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: PROOF OF TITLE TO LAND: THERE ARE FIVE WAYS BY WHICH TITLE TO LAND CAN BE PROVED
The law has long been settled that there are five distinct ways of proving title or ownership of land and prove of one of the five ways is sufficient proof of ownership. A plaintiff is however entitled to plead and rely on more than one of the ways of proving title. See ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250 (SC) AT 47-48 (SC) (E-A).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: WHAT A PARTY MUST DO WHEN RELYING ON ACTS OF POSSESSION AND OWNERSHIP AS PROOF OF TITLE
the Supreme Court per Iguh, JSC held that:
“…the law is settled that a party relying on acts of possession and ownership as proof of title to land must show that such acts not only extend over a sufficient length of time but that they are numerous and positive to warrant the inference of exclusive ownership of such land. In other words, there must be proof that from the nature of such massive and persistent acts exercised nee clan, nee vi, nec precario, that is to say, openly and without force or stealthily, any person asserting a contrary title would have known of such exercise and be expected to assert his contrary title and/or ward off the perceived intruder or trespasser thereupon. A few of such acts which are isolated in nature and which the adversary was not in a position to have known about will not suffice. See Ekpo v. Ita (1932) 11NLR 68 at 69; Piaro v. Tenalo (1976) 12 SC 31 at 41, Idundun v. Okumagba (1976) 9-10 SC 227; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 at 401.” Per IGUH ,J.S.C ( Pp. 30-31, paras. F-D)…”PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
CIVIL MATTERS: STANDARD OF PROOF IN CIVIL MATTERS
Civil matters are decided on balance of probabilities and preponderance of evidence by considering the totality of the evidence led on each side and placing them on the imaginary scale of justice to discover which one outweighs the order. See WACHUKWU & ANOR V. OWUNWANNE & ANOR (2011) LPELR-3466 (SC) AT 47-48 (D-C). SAKATI V. BAKO & ANOR (2015) LPELR-24739 (SC) AT 34 (C-E).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: DUTY OF THE PARTY CLAIMING TITLE TO LAND AND INJUNCTION
The law is trite that the first duty of a party claiming title to land and injunction is to clearly identify the land to which his claim relates. ANAGBADO V. FARUK (2018) LPELR-44909 (SC) AT 30-31 (F-B). ADESANYA V. ADERONMU & ORS (2000) LPELR-145 (SC) AT 22-24 (B-C). AUTA V. IBE (2003) LPELR-640 (SC) AT 12-13 (F-A). AIYEOLA V. PEDRO (2014) LPELR-22915 (SC) AT 50 (A-E).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: REVERSIONARY INTEREST: WHEN DOES A REVERTIONARY INTEREST EXIST?
A reversionary interest exists where the grantor has not transferred his interest in land to the grantee absolutely. That is to say that the interest in the land reverts to the grantor upon the occurrence of an event or by efluxion of time where the grant is for a term certain or a period of time. See SOBANDE V. IGBOKWE (2016) LPELR-4032 (CA) AT 23-24 (D-).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: CONSEQUENCE OF A GRANT OF LAND TO A CUSTOMARY TENANT OR A LASE TO A TENANT WHICH IS SUBJECT TO REVERSIOANRY INTEREST
Though, the consequence or effect of a grant of land to a customary tenant or a lease to a tenant or any grant which is subject to a reversionary interest of the grantor even for a long period is that the grantor has parted with possession, the radical title to the land always remains with the grantor or the landlord. Even under the Land Use Act, such a grantor remains the true owner of the land and a deemed holder of a certificate of occupancy or having a right of occupancy as the overlord. See ARCHIBONG & ORS V. ITA & ORS (2004) LPELR-535 (SC) AT 55-57(E-B) where the Supreme Court per Uwaifo, JSC stated the nature and the essence of a landlord?s right of reversionary interest as follows:
“The law clearly is that, once a customary tenant always (SIC) such a tenant entitled to the occupation and use of land but the tenancy is subject to the landlord’s right of reversion in an appropriate event, such as the denial of the title of the overlord, or the failure to comply with the terms of the tenancy thereby leading to forfeiture: See Dokubo v. Bob-Manuel (1967) 1 All NLR 113 at 121; Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528; Salami v. Oke (1987) 4 NWLR (Pt.63) 1 at 14; Ogunleye v. Oni (1990) 4 NWLR (Pt.135) 745 at 783 – 784.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: THE POSITION OF A CUSTOMARY TENANT
It is also recognized that although a customary tenant can hold in perpetuity subject to good behaviour, he is presumed to be a tenant from year to year: See Aghenghen v. Waghoreghor (1974) 1 All NLR 81, (1974) 1 NMLR 270, (1974) 9 NSCC 1 at 24. No matter how long he is on the land, a customary tenant does not and cannot acquire ownership, that is to say, divest the radical owners of their title, merely by virtue of such long tenancy in possession: See Isiba v. Hanson (1967) 1 All NLR 8 at page 10 where this Court observed per Coker, J.S.C.: “The learned trial Judge did not consider that where land is given to a customary tenant under native law and custom it is of the essence of his tenure that he should be in possession of such land and we are unable to agree with him that the mere fact of possession without any other overt acts unequivocally pointing to the assertion of absolute ownership to the knowledge of the plaintiffs was sufficient to divest the plaintiffs of their radical ownership to this property.” See also Akinloye v. Eyilola (1968) NMLR 92. The tenant cannot take over the land, even under the Land Use Act, in place of the landlord as if he was the holder under the Act by virtue of subsisting tenancy notwithstanding that the said tenancy keeps his landlord out of possession because a holder of land under the Act is the true owner entitled to or having a right of occupancy as the overlord; and the tenant’s possession is subject to the overlord’s right of reversion exercisable when an occasion for forfeiture of the tenancy arises, or where in an appropriate case the tenancy expires: See Abioye v. Yakubu (1991) 5 NWLR (Pt 190) 130 at 217; 225, 244-245; Akintola v. Oyelade (1993) 3 NWLR (Pt.282) 379 at 386.”PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: TRESPASS: WHO HAS THE RIGHT TO SUE IN TRESPASS
The settled principle of law as regards who has the right to sue for trespass is that a person who is in possession is the one who has the right to sue for trespass. However, where a permanent injury is done to a land which may affect adversely the land and consequently the value of the reversionary interest in the land, the person who has the reversionary interest and thereby radical title to the land has the right to sue for the injury done to his interest. See SOLEHBONEH OVERSEAS (NIG.) LTD V. AYODELE & ANOR. (1989) LPELR-3099 (SC) AT 32 (D-D). WUSU & ORS V. DAVID & ORS (2014) LPELR-22426 (CA).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
1. CHIEF DAMIAN NWANKWO
2. GEORGE OSITA NNAIFE
3. CHUKWUJEKWU MACHIE
4. CHINEDU NNAIFE
(For themselves and as representing
Member of Umuanwusi Azu
Nkwelle, Arinzeonwu and Ezeukwu
families of Ezi-Nkwelle Village,
Nkwelle Ezunaka) Appellant(s)
AND
1. PATRICK OKAFOR
2. MENA OKAFOR
3. LEONARD SUNDAY MADUKOLU
4. MESHACK IGWEMMA
5. ADOLPHUS OBIORA OKIKA
6. MENA IGWEBUIKE
7. CHUKWUEZUGO OBED
8. BERNARD IBE MUONWU
9. GABRIEL UDEOZOR
10. FRANCIS BELCHUKWU
11. IKEMEFUNA CHUKWUKA
(For themselves and as representing
Members of Umuanwusi, Azu-
Nkwelle, Arinzeonwu and Ezeukwu
families of Ezi-Nkwelle Village,
Nkwelle Ezunaka). Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The
