JOHN NWOKOBIA & ORS v. HON. CHIWETA OKONTA
(2019)LCN/13305(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of May, 2019
CA/B/485/2017
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. JOHN NWOKOBIA
2. IFEANYI KONWEA
3. PAUL NWOKOBIA
4. EKENEM JULUGA
5. TONY EJIOGO
6. OKONTA AZUKA
7. OKOLO AMAECHI
8. ENYI FUMNAYA
9. CHUKS OKONKWO
10. SAM ODIKABUE
11. NKEM EJIOGO
12. UZOWULU CHUKWU Appellant(s)
AND
HON. CHIWETA OKONTA Respondent(s)
RATIO
WHETHER OR NOT THE DATE OF COMMENCEMENT OF ANY LAW IS THE DATE OF ITS PUBLICATION
However a legal notice, it is clear, is a subsidiary legislation. According to KARIBI-WHYTE JSC in CHIEF DENIS OSADEBAY V A.G BENDEL STATE (1991) 1 NWLR PART 169 p.525;
?It is well settled that the date of commencement of any law is the date of its publication, except where otherwise stated. See EBIRIUKWU V ONANYERENWA (1959) 4FSC 212; (1959) SCNLR 540. Where a retrospective date is provided, it is undoubtedly statutory that is the date of commencement. PER AWOTOYE, J.C.A.
REQUIREMENT TO SUCCEED IN AN ACTION FOR TRESPASS TO LAND
In order to succeed in action for trespass, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass. JIMOH ADELAKUN V SABITIYU ODUYELE (1972) 6S.C.; THOMPSON & ANOR V AROWOLO (2003) 7 NWLR PART 818 p. 163. PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):This is the judgment in respect of the appeal filed by the appellants who were the defendants at the lower Court in Suit No. A/127/2010: JOHN NWOKOBIA & ORS V. HON. CHIWETA OKONTA.
The said judgment was delivered by Delta State High Court on 6/6/17.
The Plaintiff at the lower Court (now the Respondent) had instituted an action against the defendants (now appellants claiming as per paragraph 2d (1-3) of his amended statement of claim , claim as follows:
?WHEREOF THE CLAIMANT CLAIMS AGAINST THE DEFENDANTS JOINTLY AND SEVERALLY AS FOLLOWS:
1. A declaration that the claimant is the owner of all that piece or parcel of land lying, situate and being at Ani-Ngene Umudiake, in Umudiake village, Asaba Oshimili South Local Government Area of Delta State of Nigeria, measuring approximately 100ft by 350ft or approximately 3221.382 square metres.
2. An Order of perpetual injunction restraining the defendants and/or their agents, privies assigns from committing acts of trespass on the claimant?s land.
3. The sum of N5,000,000.00 (Five Million
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naira only) as damages for trespass and wanton act of the defendants.?
Parties filed and exchanged pleadings. The learned trial judge after hearing the parties entered judgment in favour of the claimant in the following terms:
?In the end result, I hold that the claimant successfully established his claims against the defendants. I find the defendants liable to the claimant and judgment is hereby entered in favour of the claimant against the defendants upon these terms:
1) That the claimant is the owner of all that piece or parcel of land lying, situate and being at Ani-Ngene Umudiake in Umudiake village, Asaba Oshimili South Local Government Area of Delta State of Nigeria measuring approximately 100ft by 350ft or approximately 3321.382 square metres.
2) The defendants and/or their youths, privies, assigns are hereby perpetually restrained from committing acts of trespass on the aforesaid land.
3) The defendants shall pay the sum of N1.5 million as general damages for trespass to the claimant,”
Dissatisfied with the said judgment, the appellant filed Notice of Appeal to challenge it on 4 grounds.
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GROUNDS OF APPEAL
ERROR IN LAW
The learned trial judge erred in law by granting the claims of the respondent.
PARTICULARS OF ERROR
I. The respondent predicated his title on sale and he was bound in law to satisfactorily plead and prove the title of his vendors.
II. It was common ground between the parties and as rightly found by the Court below that the land in dispute was de-acquired to Umudaike village in the year 2009.
III. The learned trial judge missed the point as at the year 2007 when the respondent?s vendors derived their title from Umudiake village, the land was still under the acquisition of Delta State and that Umudiake village had no title in the land in dispute to transfer to the respondent?s vendors who similarly had nothing to sell to the respondent.
IV. Both parties in their settlement of issues made the title/capacity of the respondent and his vendors a material issue which the learned trial judge ignored.
V. The respondent?s possession was tied to this non-existent title and automatically failed with the defective title and the learned trial judge should have missed the respondent?s
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case.
B. ERROR IN LAW
“The learned trial judge erred in law in the following passage of his judgment ?in my considered opinion, the Exhibit N tendered and admitted in evidence in this suit, has fully resolved the issue on location and identity of the land in dispute with respect to the consent judgment in Suit No: A/136/2007 as held in Arowolo Vs. Omole (2010) ALL FWLR (PT. 514) 177 at 130 wherein it was held:- ?it is settled principle of law that the claim and respective rights of the parties can only be resolved upon the production of composite plans by the parties.?
I hold that the land in dispute does not fall within any consent judgment as pushed by the defendants.
Having resolved the above issues in favour of the claimant, it is easy to hold that the deeds of conveyance relied upon by the claimant are genuine, duly granted, stamped and registered, the grantor had the authority/capacity to make them, the grantor had in fact what he purported to grant and had the sufficient claim by the claimant. See Oyeneyin V. Akinkugbe (2010) ALL NWLR (Pt. 517) 597 at 613.?
PARTICULARS OF ERROR
I. The learned trial
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judge missed the point that the resolution of the issue of location and identity of the land in dispute was dependent on a finding as to de-acquired status of the said land.
II. Also the capacity/authority of the grant as found by the Court can only be validly made on the strength of the de-acquired status of the land in dispute.
III. Since at the time of reference in 2007 when the vendors derived their title, the land in dispute was still under the acquisition of Delta State Government rendering the above issues not only irrelevant and otiose but equally of no moment.
IV. The de-acquisition of the land in dispute post dated the cause of action in this matter and the learned trial judge should have dismissed the above matter for want of cause of action.
C. The learned trial judge erred in law by adjudging the 1st ? 11th Appellants liable to the claim of the respondent.
PARTICULARS OF ERROR
I. The learned trial judge found as a fact that it was the 12th Appellant that committed the act of trespass.
II. Having allegedly sold the land in dispute to the 12th Appellant, the 1st -11th appellants had no legally congnizable
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interest to protest in the land in dispute and therefore not necessary parties to the case.
III. The learned trial judge should have consequently struck out the 1st -11th appellants from the action since they were not necessary parties.
IV. Having found the 12th Appellant solely liable in trespass, the learned trial judge erred gravely by finding the 1st -11th appellants equally liable as the said liability contradicts the finding of liability in trespass against the 12th Appellant by the Court below.
D. The learned trial judge erred in law in the following passage of his judgment ?with regards to the claim for trespass, the allegation was that it was the 12th defendant to whom the 1st -11th defendants? sold land in dispute that actually committed the trespass the 12th defendant did not appear in Court. He did not depose to any document on oath, he gave no evidence that he did not trespass on the land. I regard the evidence of the alleged trespass as uncontradicted and I so believe and hold. In law trespass is a wrongful entry onto land in actual and constructive possession of another. Any unlawful interference with possession
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however slight amount to trespass. See Oyebamiji V. Fabiyi (2003) 12 NWLR (pt 834) 271 at 302.?
PARTICULARS OF ERROR
I. The learned trial judge failed to take cognizance of the point that the respondent neither pleaded nor led evidence on any slightest act of possession on the land in dispute whether actual or constructive.
II. Apart from the date of the allocations to the respondent?s predecessors-in-title, the respondent neither pleaded the date of the acquisition of the land in dispute nor did he plead that he exercised any specific act of possession on the land in apart from the barren assertion that he had been enjoying peaceful possession.
III. The Respondent?s litigation survey plan in silent on any specific act of possession by the respondent.
IV. The respondent from his own showing met the 12th appellant in possession of the land in dispute in 2010 and an action for trespass is not maintainable against a party in possession by a respondent who is not in possession.
V. The entirety of the respondent?s case rested on the identity and location of the land in dispute which were immaterial issues against
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the settled fact that the land was still under Government acquisition at the time of reference.
E. ERROR IN LAW
The learned trial judge erred in law by awarding the sum of one Million, Five Hundred Thousand naira (N1.5m) general damages against the appellants.
PARTICULARS OF ERROR
I. The said award is not only excessive and unjustifiable but has no basis in law.
II. The respondent has no possessory right or even a claim to possession of the land in dispute to support a cause of action in trespass.
III. The award in the face of the evidence before the Court below was unreasonable in the circumstances.?
After transmission of record of appeal to this Court, parties in this appeal filed and exchanged briefs of argument.
The appellant?s brief of argument was prepared by C.O. ERONDU their counsel and filed on 8/12/17.
C.O. ERONDU also filed Appellant?s Reply brief of Argument on 21/6/18 in response to the Respondent?s brief of argument.
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The Respondent?s brief of Argument was settled by F.T. ERULI ? EDE his counsel. His brief was filed on 12/3/18 but deemed filed on 19/6/18.<br< p=””
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ISSUES
Learned counsel for the Appellant?s formulated two issues for determination in this appeal to wit:-
1. Whether the learned trial judge was right in granting the claims of the Respondent (GROUNDS A, B,D &E)
2. Whether the 1st ? 11th appellants were necessary parties liable to the claims of the respondent.
SUBMISSION OF COUNSEL
Appellant?s counsel argued both issues together. He submitted that the Respondent having predicated his claim on root of title on grant, he was bound to establish or prove the said root of title. See UDE & ORS V CHIMBO & ORS (1998) 12 NWLR PT 577, 169,189 Para C ? D per Iguh JSC AND ORS.
Counsel to appellants relied on BENEDICT O. NWOFOR VS MADAM MGBOYE NNOSU & ANOR (1992) 9 NWLR PT 265, 299, 239 Para A ? B where OGUNTADE JCA said ?A consideration of the defendant?s case will not arise until the plaintiff has shown a prima facie case ?see also AROMIRE V AWOYEMI (1972) C.S.C 1, and contended that the Respondent had failed to prove a fundamental part of their case.
He also submitted that it is settled law that when a plaintiff?s
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vendors title and his capacity to sell are both challenged by the defendant the onus is on the plaintiff to establish that title otherwise the principle of NEMO DAT QUOD NON HABET will apply. See FASORO V. BEYIOKU (1988) 2 NWLR Pt 76, 263, 273 para A-B and Ors and the appellants submitted that the acquisition of the land in dispute by the Delta State Government is settled and in YUSUF V OYETUNDE & ORS (1998) 12 NWLR where it was held that once there was a compulsory acquisition of land, the title of the former became extinguished by the reason of the acquisition and when the acquired land or part of it was returned, a new root of title by grant was created. Also land which was under acquisition could not be sold by the original owner.
They relied on the maxim NEMO DAT QUOD NON HABET and POLO VS OJOR (2003) 3 NWLR PT 807, 344, 356 Para C-F, to submit that the vendor had no legal interest in the land and as such could not have been able to transfer to the Respondent.
?
It was submitted that the materiality of the issue of the identity and location of the land in dispute became manifest after the resolution of the issue of title in favour of the
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respondent by the Court below a point that was unfortunately not appreciated.
He respectfully urged Court to set aside the award of damages for trespass against the 1st -11th appellants as the said award was at variance with the finding of trespass against the 12th Appellant alone.
Conclusively appellant?s counsel submitted that the trial judge erred in law by granting the claim of the respondent and urged the Court respectfully to set aside the judgment of the Court below.
Counsel for the Appellant submitted that since the case of the Respondent on title has been demolished, the respondent?s constructive possession or right to possession would suffer the same fate.
On the Respondent?s submission that the 1st -11th appellants was liable for trespass because the 12th appellant was prior to the agreement. He submitted that the respondent?s submission is unsustainable in view of the fact that there was no cross-appeal against the firm finding of the fact by the Court below that it was the 12th defendant that the 1st – 11th defendant sold the land to that actually committed the trespass.
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Finally he respectfully
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urged the Court to dismiss the contentions of the Respondent and allow the Appellants appeal.
ARGUMENTS OF RESPONDENT?S COUNSEL
Learned counsel for the Respondent distilled one sole issue for determination as follows:
The sole issue for determination is whether the Court below was right in finding for Respondent or granting all the reliefs sought by him.
Learned counsel to the Respondents contended that the land in dispute was his by tendering Amendment of Delta State Notice No. 1, land allocation papers, deeds of conveyance and composite plan showing that the said land in dispute fell within the area reverted to Umudiake village and witness statements were corroborated in the course of the trial tying the proof of title to the Respondent.
Learned counsel argued that the applicability of the principle of NEMO DAT QUOD NON HABET as raised by the Appellants was not only wrong but the cases cited were inapplicable and irrelevant.
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He submitted that the amendment of Delta State Notice No. 1 of 8th October 1991 took effect from the 8th October 1991 since the Delta State House of Assembly that made the law did not state otherwise.
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See PROVOST LAGOS STATE COLLEGE OF EDUCATION VS EDUN (2004) FWLR (PT 201) 1628 @ 1647 Para E- F (Ratio 12).
Respondent?s Counsel Contended that in the eyes of the law flowing from above cited case, the land in dispute could be said not to have been compulsorily acquired by the State Government.
He further relied on GAJI VS PAYE (2003) FWLR (PT 163) 1 AT 17, Para G ?H to submit that the evidence of the respondent witnesses were not challenged and as such was deemed admitted.
He relied on ADELELE VS ATOYEBI (2004) ALL FWLR (PT 204), 76 AT 87 para D-E and ORS to submit that the trial Court having held that the respondent proved his title to the land and as such was entitled to damages in trespass.
He submitted that a trespasser on land had no possession in law. SEE AKINTERINWA VS OLADUNJOYE (2000) FWLR (PT 10) 1690 AT 1712 Para C (Ratio 10.)
Counsel relied on IPINLAIYE VS OLUKOTUN (1996) NWLR (PT 453) 148 & ANOR submitted that a party is entitled to rely on his opponent?s admission as an admission against interest to defeat his opponent?s claim or case.
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He submitted that where a composite plan accurately
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showing the land to which title had been given, from the perusal of the record by a surveyor, a plan was not of absolute necessity. See ONISESE VS OYELEYE (supra) at 1865 para C-D (Ratio 6)
He humbly urged the Court to resolve the sole issue in favour of the Respondent.
APPELLANT?S REPLY BRIEF
Appellants reply brief was filed on the 21/6/18 to discountenance the submissions of the respondent in his brief of argument.
Appellants submitted that the said contention under the caption ?Proof of Title? betrayed a complete misconception of the legal implication of the compulsory acquisition and de-acquisition of land respectively.
The Appellants submitted that the respondent jettisoned the authority of YUSUF VS OYETUNDE (1998 12 NWLR PT 579, 483 and painfully overlooked Uwais CJN dicta in his lead judgment which captured the critical issue in this appeal.
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Uwais CJN in the above case as submitted by the Appellants as to whether the respondent vendor had title to transfer land already being acquired by the State Government?.. On the authority of Cook Vs Taylor (1942) 1 Ch 349 and James Macora Ltd V Barcla (1945) 1 ch
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349, land under acquisition could not be validly sold by its original owner.
RESOLUTION OF ISSUES
I have deeply considered the submissions of learned counsel on both sides as well as the contents of record of appeal. I shall resolve this appeal based on Respondent?s sole issue.
I am of the firm view that it is necessary to first know whether or not the land in dispute was acquired by Delta State Government and later de-acquired.
In support of this claimant relied on AMENDMENT OF DELTA STATE NOTICE NO. 1 OF 8/10/91 PUBLISHED IN DELTA STATE OF NIGERIA GAZETTE NO. 1 VOLUME 1 OF 10/9/91 (see page 54 of record).
The case of the defence however was that the land in dispute was situate in ANI-NGENE land was de-acquired as per DELTA STATE OF NIGERIA GAZETTE No 8 VOLUME 16 OF 23/2/2006 and that the land was partitioned in the manner shown in a survey plan prepared by the office of the surveyor general and duly signed by M.E.T. IKPIRHINRIN and countersigned by the surveyor-general.
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M.E.T. IKPIRHINRIN gave evidence for the claimant as 3rd PW. In his adopted statement on oath, he stated as follows:
1. That I retired as a Deputy
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Surveyor-General of Delta State and I am presently a Registered Surveyor in private practice.
2. That I surveyed the land, subject matter of dispute which was shown to me by the claimant and accredited representatives of Umudiake village of Asaba
3. That in the course of my survey work, I discovered that the land in dispute falls with the area of approximately 50.02 hectares, which the Government of Delta State reverted to the Umudiake Community vide Amendment of Delta State Notice No. 1 of 8th October, 1991 published in Delta State of Nigeria Gazette No. 1, volume 1 of 10th August, 1991 as published in the POINTER Newspaper of Thursday, April 15, 2010.?
On the evidence of M.E.T Ikpirhinrin, the learned trial Chief Judge opined thus:
?In the light of the evidence of the Deputy Surveyor-General (retired), what is there for me to disregard the Gazette No. 1 of 10th August, 1991 and signed on 16th November, 2009. None. I hold that the Gazette is genuine. If so, on whom lies the onus to prove otherwise? It is the defendants. The defendants either through testimony or documentary evidence must establish that the de-acquisition was
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not to Umudiake but Isieke. It is not sufficient to say that the de-acquisition to Umudiake was in error, they have to go on to establish by producing another Gazette that the land in dispute has been de-acquired to the Isieke community. There is no Court Order setting aside the provision of the said gazette.?
I entirely agree with His Lordship. The meaning of this is that the AMENDMENT OF DELTA STATE NOTICE NO. 1 OF 8/10/91 PUBLISHED IN DELTA STATE OF NIGERIA GAZETTE NO. 1 VOLUME 1 of 10/9/91 is the relevant notice in this appeal. It also means the evidence of M.E.T IKPIRHINRIN on the reversion of the land in dispute to Umudiake is unimpeachable.
The next question is when did the de-acquisition take effect? 1991 or 2009? This is necessary in view of the fact that no commencement date was fixed by the amendment of notice. However a legal notice, it is clear, is a subsidiary legislation. According to KARIBI-WHYTE JSC in CHIEF DENIS OSADEBAY V A.G BENDEL STATE (1991) 1 NWLR PART 169 p.525;
?It is well settled that the date of commencement of any law is the date of its publication, except where otherwise stated. See EBIRIUKWU V ONANYERENWA
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(1959) 4FSC 212; (1959) SCNLR 540. Where a retrospective date is provided, it is undoubtedly statutory that is the date of commencement.?
The effective date of commencement of the legal Notice is 2009 in the light of the above. It was signed into law on 16th November 2009.
Now the case of the claimant was that the land in dispute was purchased by him in 2007 and therefore he was the rightful owner of all that piece of land. He called CHIEDU OKWUNZE the secretary of Umudiake community of Asaba, Nnamdi Ezzeh, the Chairman of the land Committee of Umudiake community of Asaba as witness to support his claim to the land.
The defendants in his own defence called one sole witness.
?In his adopted statement on oath he said inter alia thus:
1) ?I am the 1st defendant in this suit and I know the subject matter of this action.
2) At all times material to this action, the piece or parcel of land to which the claimant?s action relates was owned by the Isieke or Umuonishe family, Asaba, of which we are members. Ani-Ngene from time immemorial has been jointly owned by Isieke and Umudiake Quarters of Asaba by virtue of
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a consent judgment between the two families in Suit No W/5/1954 between NWALIE ONWUKA & ANOR VS. SAMUEL NWAJEI & ANOR, which is hereby attached and will be relied upon at the trial.
3) The land in dispute was originally owned by Umudiake Quarters as averred in paragraph 15. Before the present dispute arose, Ani-Ngene land which the land now in dispute is a part, was jointly owned by Isieke and Umudiake families. This is by virtue of both the 1978 consent judgment in suit No W/5/1954 between NWALEI ONWUKA & ANOR VS. SAMUEL NWAJEI & ANOR and suit No. A/36/2007: NGOZI NWAJEI & 3 ORS VS OGBUESHI F.A. ODIATU & 2 ORS. Certified true copies of both judgments are hereby pleaded and will be relied upon at the trial.
4) Ani-Ngene was de-acquired in two phases. When the government de-acquired the first phase as evidenced by the Delta State of Nigeria Gazette No 8, Vol. 16 of 23rd February, 2006, Isieke and Umudiake families, the original owners to whom the land reverted, partitioned the land in the manner shown in a survey plan prepared by the office of the Survey-General and duly signed by M.E.T. Ikpirhinrin and counter signed by the
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Survey-General. The said plan was filed in Suit No. A/36/2007: NGOZI NWAJEI & 3 ORS VS. OGBUESHI F.A. ODIATU & 2 ORS.
5) When the second phase or the remainder of the said Ani-Ngene land was subsequently de-acquired, Umudiake Family surreptitiously entered upon the portion of rightly belonging to Isieke Family by virtue of the said consent judgment 2007?..?
I am of the considered view that in the face of the conclusive evidence of the 3rd PW, the evidence of the sole witness for the defendant carries no weight. I am more fortified in this view by the fact that the title of the claimant and his ownership of the land in dispute was backed by the evidence of secretary of Umudiake Community and that of the Chairman of the land committee of the community. With these pieces of evidence the contention of the appellants that the land was sold to the Respondent while it was under acquisition is merely academic. Indeed Umudiake sold the land to the Respondent.
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I have also taken deep thought about the argument of the appellant on the findings of the learned trial Chief Judge on the claim for trespass. Having found the Respondent to be
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the rightful owner of the land in dispute the sale of portion of the land by a person other than the owner is an infringement on the right of possession of the rightful owner. It amounts to an act of trespass.
In order to succeed in action for trespass, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass. JIMOH ADELAKUN V SABITIYU ODUYELE (1972) 6S.C.; THOMPSON & ANOR V AROWOLO (2003) 7 NWLR PART 818 p. 163.
The sale of the land in dispute to the 12th defendant by the 1st -11th defendants was an act of trespass. The entry into possession of the land by the 12th defendant was also an act of trespass. I find the findings of the lower Court on the claim for trespass and damages awarded unimpeachable.
I therefore resolve the sole issue adopted by me in this judgment in favour of the Respondent.
This appeal lacks merit. The judgment of the lower Court in SUIT NO. A/127/2010 delivered on 6/6/2017 is hereby affirmed. Appeal is dismissed with N200,000.00 costs assessed in favour of
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the Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My Lord T. O. AWOTOYE, JCA, obliged me with the draft of the lead judgment just delivered. I agree with the conclusion that the lower Court’s judgment should be affirmed.
For the reasons advanced in my learned brother’s lead judgment, I also dismiss this appeal and affirm the judgment of the trial Court.
I also abide by the order as to costs made by AWOTOYE, JCA in the lead judgment.
PHILOMENA MBUA EKPE, J.C.A.: I have had the advantage of reading in draft the lead Judgment just delivered by my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA.
My Lord has painstakingly dealt with the sole issue raised in this appeal and I am in total agreement with the reasoning and conclusion therein that this appeal lacks merit and ought to be dismissed. The Judgment of the lower Court in Suit No: A/127/2010 delivered on 6/6/2017 is hereby affirmed.
?I abide by the order as to costs in the lead Judgment.
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Appearances:
C.O. Erondu with him, A. Oborota and S. NwaeliFor Appellant(s)
F.T. Eruli-Ede with him, G.D ArchibongFor Respondent(s)
Appearances
C.O. Erondu with him, A. Oborota and S. NwaeliFor Appellant
AND
F.T. Eruli-Ede with him, G.D ArchibongFor Respondent
