CHUKWUEKU EKWUAZOM & ORS v. CHIEF SAMUEL OKWUNWA
(2019)LCN/13905(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/B/150/2012
RATIO
LAND LAW: Whether the lower Court correctly awarded the respondent a Declaration of entitlement to a Statutory right of Occupancy whereas there was no pleading or evidence upon which to predicate same:ONCE A DECLARATION IS MADE, THE COURT IS MEANT TO TAKE JUDICIAL NOTICE THAT A LAND IS IN AN URBAN AREA
Aromolaran v. Oladele (1990) 7 NWLR (Pt. 162) 359 (Read this L/R) and submitted that:-
Once the declaration has been made, the Court is bound to take judicial Notice that the land is in an Urban Area. He is therefore on firm grounds in granting the award.
It is clear that Boji Boji Owa is in schedule 4 of B.S.L.N 14 of 1988.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
EVIDENCE: HOW DOCUMENTS COULD BE CORRECTLY ADMITTED IN A PROCEEDINGS
Once a document is pleaded and it is relevant, it is bound to be admitted. He said that the appellants did not object to the admissibility of Exhibit ?P1? at the lower Court and they ?cannot do so on an appeal?. In support of this statement, counsel relied on the case of Kossen (Nig.) Ltd. v. Savannah Bank Ltd. (1995) 33 LRCN 543. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. CHUKWUEKU EKWUAZOM
2. MRS. AGBIGAIL ANYIA
3. NGOZI EKWUAZOM
4. FELICIA EHIRERE
5. ABIGAIL EKWUAZOM
6. ISIOMA EKWUAZOM Appellant(s)
AND
CHIEF SAMUEL OKWUNWA Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent was the plaintiff in Suit No. HCY/15/1997 instituted in the High Court of Delta State, Asaba Judicial Division, sitting at Asaba.
The original defendant to the suit was one Madam Ekwuazom who was later substituted with the appellants.
The claims in paragraph 14 of the 2nd further amended statement of claim were:
I. A declaration that the plaintiff is entitled to the grant of a statutory right of occupancy to the piece and parcel of land situate and lying off Obianke Street, Boji Boji, Owa.
II. N500, 000.00 (Five Hundred Thousand Naira) being general damages for trespass.
III. Perpetual injunction restraining the defendants, their agents, servants and/or privies from continuing any further acts of trespass on the land or ever setting their felt (sic) on the said land.?
The appellants filed an amended joint statement of defence, containing 16 (sixteen) paragraphs, in which they denied the respondent?s claims and urged the Court to dismiss same. After the conclusion of evidence and the addresses of counsel, the trial Court delivered a reserved judgment in favour of the respondent on the 12th day of March, 2012. This appeal is against the said judgment.
The appellants filed their joint brief on the 15th day of June, 2017 and, in it, they distilled the following three (3) issues for determination: –
a) Whether the lower Court properly evaluated the evidence adduced by the respondent having regards to his pleadings (Distilled from Grounds 1,2 and 3);
b) Whether the lower Court correctly awarded the respondent a Declaration of entitlement to a Statutory right of Occupancy whereas there was no pleading or evidence upon which to predicate same. (Ground 4);
c) Whether the document marked as Exhibit P1 was correctly admitted in the proceedings? (Ground 5).?
In his brief filed on 05/02/2018, the respondent raised three issues as follows: –
1. ?Whether the identity of the land was ever put as issue.
2. Whether the lower Court was not bound to take judicial notice of BSLN of 1988 in awarding the Respondent rights to stationary (sic) Rights of occupying (sic) over the land.
3. Whether Exhibit P1 was not correctly admitted in evidence.
I adopt the issues formulated by the learned counsel for the appellants, because they are apt, concise and precise issues which are properly tied to the grounds of appeal.
ISSUE I
Whether the lower Court properly evaluated the evidence adduced by the respondent having regards to his pleadings (Distilled from Grounds 1, 2 and 3).”
Learned counsel contended that in an action for declaration of title to land, the plaintiff ought to succeed on the strength of his case and not on the weakness of the defendant?s case. To buttress this contention, counsel referred the Court to the cases of Edosomwan v. Ogbeyfun (1996) 4 NWLR (Pt. 442) 266 at 277 and Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328 at 341.
After referring to and reproducing paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of the respondent?s 2nd further amended statement of claim, learned counsel submitted, inter alia as follows:-
5.03 ?By the claims made by the respondent, his parcel of land in respect of which he is basing his claim as set out in his pleading, is the portion allegedly ?given? to him by the Community after the partitioning of the land previously allocated or granted to him. The respondent pleaded in paragraph 7 of his said pleading that it was some years after he had taken possession of the land that the Defendants (now appellants) suddenly laid claim thereto. The alleged partition occurred thereafter. By paragraph 10, he later constructed a dwarf wall at the four corners of his land which is now the land in dispute.
The importance of this is that the Respondent title does not dovetail on the earlier allocation or grant based on which Exhibit P1 being the allocation document was issued since the partition occurred thereafter.?
5.04. The PW2 was specifically mentioned in paragraph 9 of the respondent?s extant pleading as one of those who carried out the partitioning of the land. He did not mention partitioning through his evidence in chief and under cross examination when he was recalled. The respondent also testified without giving any evidence touching on the alleged partition. Being the foundational basis of the Respondent?s claim of entitlement to the land, we urge that it be determined that the said root of title was abandoned as no attempt was made to establish same by evidence.?
Counsel argued that since the appellants pleaded in paragraph 9 of their amended joint statement of defence that ?at no time was the land in dispute ever partitioned?, the respondent who asserted partitioning of the land ought to have proved same by credible evidence. Learned counsel relied on the case of Lewis & Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 SC 157 at 162 and submitted that:-
?It is settled law that where pleadings were filed and exchanged as a result of which a material fact was affirmed by one of the parties but denied by the other, the question that was raised as a result is an issue of fact which must be established by the party so asserting by credible evidence.”
Learned counsel extensively referred to the pleadings and evidence before the Court and submitted that the respondent?s evidence is not at variance with his pleadings, for example:
1. The custom of Owanta-Idumuetor community about land acquisition as pleaded is different from the testimony of the respondent?s only witness.
2. Referring to the testimony of PW2, it was argued that ?the issue of a committee different from the Okpala-Uku and Elders in Council playing any role in land administration was not pleaded.”
3. The evidence on the boundaries of the land in dispute is different from the pleading.
He relied on the case of Nsirim v. Nsirim (2002) 94 LRCN 177 at 186; (2002) 3 NWLR (pt. 755) 697 at 711 and argued that evidence at variance with the pleading goes to no issue.
It was further contended that the trial Court erred by concluding that ?the identity of the land is not doubt?, and proceeded to grant a declaration and injunction in favour of the respondent. Learned counsel for the appellants then submitted as follows:-
This is presumably predicated in part on the unjustifiable finding that there is no doubt about the identity of the land. The unanswered question is no doubt to who? The litigants or to the Court? We rely on our earlier submission that the identity of the land claimed was not proved because:-
a. No survey plan was tendered.
b. The respondent stated in his evidence that he did not know the dimensions of the land he was claiming.
c. There was no evidence of the size of the land in dispute after the partition;
d. The area is unknown;
e. There was contradictory evidence of the boundaries as stated in evidence and in pleadings.
The respondent did not claim that the portion given to the Appellants formed part of the disputed land since it was the portion originally allocated that was now partitioned, the Respondent could not be validly entitled to a declaration of title or an injunctive order based on Exhibit P1.”
On behalf of the respondent, learned counsel contended that:-
?the respondent testified in accordance with his pleadings tracing his root of title to Owanta community who are the original owners of the communal land. The land was granted and allotted to him when Elijah Ukute was the Okpara-Uku and Barr. F.I.C. Akwue was the chairman at land office.
He further stated that he was put into possession by named members of the granting community including Apostle R.E. Egwu, the respondent called PW2. It is submitted that this is in accordance with the requirement of customary law when it comes to transfer of title.?
In support of his above contention, counsel cited the cases of Cole v. Felani (1956) 1 FSC 66 at 68 and Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351.
Learned counsel for the respondent argued that the appellants neither raised the issue of identity of the land in their statement of defence nor in their evidence and that they ?have no case based on the identity of the land in dispute?. In support of his submission, counsel cited the cases of Adenle v. Olude (2002) 18 NWLR (Pt. 799) 43; Epi v. Aigbedion (1987) NMLR 31 and Salami v. Oke (1987) 4 NWLR (Pt. 63) 1.
I have carefully considered the arguments on this issue and I agree with the respondents counsel that the evidence adduced by the respondent and his witnesses is not at variance with his pleadings. I also agree that the identity of the land in dispute was not made an issue by the appellants in the trial Court.
The appellants also complained that the trial Court did not properly evaluate the evidence before it. The judgment complained of spans pages 95 to 108 of the record of appeal. Upon a thorough reading of the said judgment, it is clear that the trial Court comprehensively evaluated the evidence before it on pages 96 to 101 of the record of appeal. As a fact, the trial Court effectively and efficiently discharged its primary duty of evaluating the evidence of the parties and their witnesses.
It is for the above reasons that I resolve this issue against the appellants.
ISSUE 2
b. Whether the lower Court correctly awarded the respondent a Declaration of entitlement to a Statutory right of Occupancy whereas there was no pleading or evidence upon which to predicate same. (Ground 4);
In urging the Court to resolve this issue in favour of the appellants, learned counsel submitted as follows:-
?By the combined effect of Section 2 (1) (a), 3, 5(1) (a) and 6 (1) (a) and (b) of the Land Use Act, to be eligible for the grant of a Statutory Right of Occupancy, the affected land must be in an Urban area. In this case, the Court is being asked to make the declaration and not the governor of the State. There is no pleading to the effect that the land in dispute is in an Urban area. No such evidence was also adduced by the Respondent and his witness. The location of the land is not a matter to be presumed. There being no pleading or evidence that the land is situated in an area designated as an urban area, there was no legal basis for the declaration.”
In response, the respondent relied on the case of Aromolaran v. Oladele (1990) 7 NWLR (Pt. 162) 359 (Read this L/R) and submitted that:-
?Once the declaration has been made, the Court is bound to take judicial Notice that the land is in an Urban Area. He is therefore on firm grounds in granting the award.
It is clear that Boji Boji Owa is in schedule 4 of B.S.L.N 14 of 1988.”
I agree with the respondent that the land in dispute, being at Boji-Boji Owa, Agbor, falls within the area designated as urban area by virtue of Schedule 4 of Bendel State Legal Notic
