KALU OKORIE KALU & ANOR v. MADAM DINAH UCHE KALU AMOGU & ORS
(2019)LCN/12728(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2019
CA/OW/287/2014
RATIO
Justices
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. KALU OKORIE KALU
2. MRS. HANNAH MBA AMOGUAppellant(s)
AND
1. MADAM DINAH UCHE KALU AMOGU
2. UCHE KALU
(Substituted on 3rd May, 2017 by Order of Court for Late Chief Uche Kalu Amogu
alias Amogu Okorie Uche Mba)
3. ADMINISTRATOR GENERAL, ABIA STATERespondent
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
The suit culminating in this appeal was instituted before the High Court Abia State sitting at Umuahia by the late Chief Uche Kalu Amogu on the 22nd November, 2010 as the Plaintiff against the Appellants and the 3rd Respondent. The original 2nd Defendant was substituted with the 2nd Appellant. Also, the late Chief Uche Kalu Amogu was later substituted with the 1st and 2nd Respondents on the 3rd May, 2017 by the order of this Court. In the Amended Statement of Claim filed on the 23rd March, 2010 in respect of which the leave of the lower Court was granted on the 16th March, 2011, the reliefs sought were as follow:
1. A declaration that the claimant is the beneficial owner and person entitled to the Statutory Right of Occupancy over all that land and property situate and lying at Plot No. 7 Block 5, Umuahia Layout and more particularly described as No 23 Item Street, Umuahia Abia State and registered at the Land Deed Registry as No 17 at page 17 in volume 51 (the Property).
2. An order restraining the 1st, 2nd and 3rd Defendants by themselves or through their agents or proxies from trespassing and/or further exercising any act of ownership or interest on the said property.
3. An Order restraining the 3rd Defendant from taking over the administration and management of the said property.
4. Payment of ten million (N10,000,0000) naira damages jointly and severally by the 1st and 2nd Defendants to the claimant for the acts of trespass on the Claimants aforesaid property.”
The 1st, 2nd and 4th Defendants filed their Amended Statement of Defence and counter-claimed the following:
1. A Declaration of the Honourable Court that the 1st Defendant and the other children of late Okorie Kalu Amogu and the children of late MbaKalu Amogu are co-owners of and are entitled to Statutory Right of Occupancy with the Claimant over that land and property currently known as and called No. 23 Item Stree, UmuahiaAbia State and registered at the Land Deed Registry Umuahia as No 17 at page 17 in volume 234.
2. An order directing the Claimant to account to the 1st Defendant and the other children of MbaKalu Amogu the total rent collected from tenants at No. 23 Item Street, Umuahia, Abia State which he forcefully took over from them from 12th June, 1971 when the father of the 1st Defendant died till date within 14 days of entering judgment.
3. Injunction restraining the Claimant by himself or through his agent, proxies assigns or attorney from holding himself out as the sole owner of the said property against the interest of the 1st Defendant and the other children of late Okorie Kalu Amogu and the wife and children of late MbaKalu Amogu or selling, mortgaging or alienating the said property at No. 23 Item Street, Umuahia.
4. Damage of Two Million Naira (N2,000,000) only to the 1st Defendant and the children of late Okorie Kalu Amogu and the children of late MbaKalu Amogu for the deprivation of the enjoyment and usage of the rent realised from tenants over the property from 12th June, 1971 till date.
The 3rd Defendant filed his Statement of Defence and Counter-Claim on 8/3/2011 and counter-claimed against the Claimant as follows:
1. A Declaration of the Honourable Court that the 1st Defendant and the other children of late Okorie Kalu Amogu and the children of Late MbaKalu Amogu are co-owners of and are entitled to Statutory Right of Occupancy with the Claimant over that land and property currently known as and called No. 23 Item Street, Umuahia, Abia State and registered at the Land Deed Registry Umuahia as No. 17 at page 17 in Volume 51 or number 38 at page in Volume 234.
2. A Declaration that the 3rd Defendant is the Administrator of the intestate Estate of Late Okorie Kalu Amogu who died in 1971 vide the Letters of Administration granted by the Honourable the Chief Judge of Abia State dated 23rd day of September, 2010 over the real and personal parts of the aforementioned estate including a part of No. 23 Item Street, Umuahia, Abia State and the property at Omaguzo Okagwe Ohafia.
3. An Order directing the Claimant to account to the 1st and 3rd Defendants and the other children of Late OkorieKalu Amogu and the children of Late MbaKalu Amogu the total rent collected from tenants at No. 23 Item Street, Umuahia, Abia State which he forcefully took over from them from 12th June, 1971 when the father of the 1st defendant died till date within 14 days of entering judgment.
4. Injunction restraining the Claimant by himself or through his agent, proxies assigns or attorney from holding himself out as the sole owner of the said property against the interest of the 1st Defendant and the other children of Late Okorie Kalu Amogu and the wife and children of late MbaKalu Amogu.
5. Damage of One Million Naira (N1,000,000) only to the estate of Late Okorie Kalu Amogu and the children of Late MbaKalu Amogu for the deprivation of the enjoyment and usage of the rent realised from tenants over the property from 12th June, 1971 till date.
Hearing was conducted at the Court below with the parties presenting their respective witnesses in support of their various assertions. In the end, the trial Court presided over by L. Abai, J., delivered its judgment on the 3rd March, 2014 and entered judgment in favour of the Claimant:
1. A declaration that the Claimant is the beneficial owner and person entitled to the Statutory Right of Occupancy over all that land and property situate and lying at Plot No. 7 Block 5, Umuahia layout and more particularly described as No. 23 Item Street, Umuahia, Abia State and registered at the Land Deed Registry as No. 17 at page 17 in Volume 51 (the property).
2. An order restraining the 1st, 2nd and 3rd Defendants by themselves to (sic) through their agents or proxies from trespassing and/or further exercising any act of ownership or interest on the said property.
3. Payment of One Hundred Thousand Naira only jointly and or severally against the 1st, 2nd and 3rd Defendants to the Claimant for acts of trespass on Claimants aforesaid property.”
The trial Court, in turn, dismissed the counter-claim of the 1st, 2nd and 4th Defendants and the counter-claim of the 3rd Respondent respectively.
The 1st and 4th Defendants registered their dissatisfaction with the said judgment by filing a Notice of Appeal predicated on eight grounds of appeal, on the 13th March, 2014. An Amended Notice of Appeal was filed on 12/3/2015 then bringing the total number of their grounds of appeal to nine. The record of appeal was compiled and transmitted to this Court on 28/8/2014 out of time though it was regularised on the 3rd May, 2017. The Appellants Brief of Argument was filed on the 17th May, 2017. Two issues were projected in the Appellants Brief for determination herein. They are thus:
1. Whether the Judgment of the Court below was justified and reflected the weight of evidence before it given the quantity and quality of evidence before the Court as to prevent same from being set aside by this Court.
2. Whether the Court below was right both in law and fact to give judgment in favour of the Claimant/1st Respondent in respect of exclusive title to the said No. 23 Item Street, Umuahia after making a finding of fact that the name in which the said property was bought does not exist in the Claimants family as a whole and the Claimant having failed to prove such exclusive title.”
The 1st and 2nd Respondents filed their Brief of Argument and raised a preliminary objection to the appeal on the ground that no issue was formulated from grounds 1-8 of the grounds of appeal in the Appellants Notice of Appeal and that no arguments were advanced from any of the grounds. In the alternative, they raised a lone issue for determination in the substantive appeal.
The learned Counsel for the Appellant, Nwabueze I. Nwankwo, Esq., submitted that a Claimant in an action for declaration of title must succeed on the strength of his case and not on the weakness in the case of the Defendant except where such weakness aids his case. He cited the cases of Adewuyi vs. Odukwe (2005) 23 NSCQR 39 at 40 and Shittu vs. Fashawe (2005) 23 NSCQR 264 at 268, and restated the case of the Claimant that he deliberately bought the property in dispute under the false name of Amogu Okorie UcheMba clearly to avoid interference from his maternal relations and avoid the same being confiscated by his trade master who was in the habit of seizing properties bought by people who served under him and left.
He referred to his evidence under cross-examination by Counsel for the 1st, 2nd and 4th Defendants that he coined that name when his former master intended to seize his property; his evidence that in 1964 he used his bonus given by a company, GBO, to buy the property so that he would not lose the property, paragraph 7 of the Amended Statement of Claim, paragraph 10 of his Statement on Oath and his answer to the question about him having other properties bearing the said name, and then submitted that it was wrong for the trial Court to have held that the Claimant has proved his case as to the exclusive possession of the property.
He further queried why such a man who had since left his masters business, and, with such a flourishing business should still hide his identity generally to avoid his former business master and prevent him from seizing the same. He contended that the name was assumed or contrived to avoid perpetration of fraud. He relied on the decisions in Professor Ayeni vs. Miss Florence Awolabi (1986) 2 QLRN 241 at 247; Ibrahim Dasuki Haske vs. Mohammed Bello Magaji (2009) All FWLR Part 461 page 887 at 906-907 and submitted that a party should be consistent in stating his case and in proving the same because he cannot be allowed to take one stance in his pleading and then nosedive during trial. He cannot claim to have had other properties in the pseudonymAmogu Okorie UcheMba but when probed under cross-examination he denied the existence of such properties. He submitted it was wrong for the trial Court to have concluded that he coined the pseudonym to avoid his former business master from seizing the property, and, that the father of the 1st Defendant, who was a Railway worker on an income of #300 in 1966 could not have afforded to buy a bungalow in Umuahia or contribute to the buying of one even when the purchase price was not stated, and that the same occasioned a grave miscarriage of justice.
Learned Counsel further referred to the Statement on Oath of C.W.3, Mr. KaluNnachi, that the Claimant is a very wealthy and successful businessman that owned and operated universal stores comparable to Kingsway Stores, owned a house of his own in Kaduna before the Nigerian Civil War and while in Kaduna, he took Mba Kalu Amogu to live with him, trained him in business and set up a yam business for him, yet there was no inkling that those other businesses and houses were registered in the pseudonym. He further considered what he termed contradictions and inconsistencies in the Claimants case as depicted in his Amended Statement of Claim and Statement on Oath that he registered the property vide Deed of Assignment and Building Lease in 1976 , and, the evidence of C.W.2 that the Claimant visited him in Enugu in 1966 to register the said document. He stated that there were uncertainties as to whether the document was registered in 1966 or 1976 and whether the said document related to the same property.
He said that the Court below was wrong in law to have speculated as to which exclusively belonged to the Claimant, and, to have found in trespass for the Claimant when there was no evidence supporting that.
Learned Counsel contended that the pseudonym was coined from the first name of the Claimant and his two other brothers and, it is evidence of joint ownership. He reproduced portions of D.W.2s, D.W.3s and D.W.1s evidence which highlighted that though the Claimant bought the property, he used the first names of his other brothers to coin the pseudonym in other to give them a place. He further submitted that their evidence established the case of joint ownership which negatived the claim for exclusive ownership or title by the Claimant. He stressed that since the parties had failed to prove exclusive possession or ownership thereto, the trial Court, therefore, was wrong to have held that the entry into the said premises by the Defendants in 2010 constituted an act of trespass. He cited the cases of Provost Lagos State College of Education vs. Dr. Kolawole Edun & Ors (2004) 6 NWLR Part 870 page 476 at 481-482 and Oluwole vs. Abubakar (2004) 10 NWLR Part 882 page 549 and submitted that trespass cannot succeed against a person who asserts title or have a better title to the premises.
He contended that the Claimant never proved that from the the time he permitted his brothers to live with him, he withdrew the original consent or permission granted to his said brothers and their families for visiting or coming into the said premises. Instead, there is evidence that the children of one of his deceased brothers still reside in the said premises. He denied the allegation that he sent away the 1st Defendant and his mother. Learned Counsel therefore urged that this issue be resolved in favour of the Appellants.
On issue No. 2, learned Counsel expressed his dismay at the conclusion reached by the trial Court that even though it found as a fact that the names Okorie andMba used in Exhibits A and P1 are the first names of the Claimants two brothers, that that does not establish that the property is jointly owned by the three brothers. He referred to the evidence of the Claimant and C.W.2 about the Claimant having other properties and further submitted that the failure of the Claimant to produce the receipt of purchase of the property in dispute to prove who actually purchased the said property signifies that if produced it would have been prejudicial to him. He relied on the cases of Awosile vs. Sotunbo (1986) 3 NWLR Part 29 page 471 at 487 and Arabambi & Anor vs. Advance Beverages Industries Ltd. (2005) 22 NSCQR 520 at 525 and Section 167(d) of the Evidence Act and called upon this Court to resolve this issue in favour of the Appellants and allow the appeal.
The 1st and 2nd Respondents via their Counsel, Obasi Awa Esq., raised a preliminary objection contending that no issue was distilled from grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Appellants Notice of Appeal, and, no submissions were made in support of the of the same. It was further alleged the Particulars of Error of grounds 4 and 7 are not in tandem with the said grounds. He invoked the decisions in Maobison Inter-Link Associated Ltd vs. U.T.C. (Nigeria) Plc (2013) All FWLR Part 694 page 52; FMC, Ado Ekiti vs. Kolawale (2012) All FWLR Part 653 without citing the page; Agbareh vs. Mira (2008) 158 LRCN 352 and Dakolo vs. Rewane-Dakolo (2011) 198 LRCN page 1 and submitted that where no issues were formulated from any grounds of appeal, the grounds are deemed abandoned and ought to be struck out. He pointed out the loop holes in each of the grounds of appeal of the Appellants Notice of Appeal and then cited the cases of Olufeagba & Ors vs. Abdur-Raheem & Ors (2010) 189 LRCN 159; Ogbe vs. Asade (2010) 180 LRCN 106 and Nwadike vs. Ibekwe (1987) 4 NWLR Part 67 page 718 upon which he urged that the said grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Appellants grounds of appeal be struck out.
With regard to the additional ground of appeal, he argued that two issues were formulated from the said ground which amounts to proliferation being frowned at by the Courts. He referenced the case of Uwazurike vs. Nwachukwu (2012) where it was held that an Appellant is not permitted to raise more than one issue from a ground or combination grounds of appeal and persuaded this Court not to countenance issue No. 2 raised by the Appellant and to strike out the appeal for being incompetent.
With regard to the lone issue raised in respect of the appeal proper i.e.Whether the Learned trial Judge rightly appraised the evidence adduced before the lower Court and arrived at the conclusion that the 1st Respondent proved his title to the property in dispute and that the Appellants failed to prove their counter-claim, learned Counsel explained that relief one of the Appellant is declaratory in nature and that the burden of proving title to the property rests with the Claimant who must not rely on the weakness of the case of the Defendants, therefore, it is the duty of the 1st Respondent to prove his claim on preponderance of evidence. He referred to the case of Salami & Anor vs. Lawal (2008) 161 LRCN on the five ways of proving title and submitted that in discharging the burden placed on him, the 1st Respondent called three witnesses including himself.
He recapped the evidence adduced by the Appellant on the pseudonym used in purchasing the property in dispute and the defence made out by the defence via D.W.1, D.W.2 and D.W.4 that on one breath the property in dispute was the sole property of OkorieKalu Amogu, the father of the 1st Appellant and on the other breath, it was a joint property of his father, the Claimant and MbaKalu Amogu. D.W.2 said precisely that it was when they discovered that the Claimant used three names to register the property that he decided to let it be a joint property.
Learned Counsel reiterated the testimony of D.W.2 that his father was the sole owner but based on the registration it became joint property, and that there was never a time his father told him that he agreed with Uche and Mba to buy a joint property. Counsel cited the case of Omotayo vs. Co-operative Supply Association (2011) 202 LRCN 134 and the finding of the lower Court at page 391 of the record and the conclusion reached by the lower Court in favour of the 1st Respondent and stressed that the 1st Respondent was consistent in the evidence presented by him as to when he bought the property, whom he bought it from, who introduced him to the transaction, the witnesses to the transaction, and how he went to Enugu to perfect the title documents and his tendering of the building lease granted him by the Government as Exhibit A.
He argued that the 1st Appellant who has the burden of proving that the property in dispute was a joint property vacillated between the property being his fathers sole property and the property being a joint property of the Claimant, his father and MbaKalu.
Learned Counsel referred to the cases of A. D vs. Fayose(2005) 10 NWLR Part 932 page 151 per Nsofor, J.C.A., and Haske vs. Magaji (2009) All FWLR Part 461 page 887, per Oredola, J.C.A, in which it was expressed that it was no business of anybody if a persons chooses to be known or called by another name and there was no legislation restricting anyone to a number of names he may be called or known by. On the invitation by the Appellants for re-evaluation of the evidence tendered before the lower Court which he argued was thoroughly evaluated by the trial Court, learned Counsel cited the cases of Haruna vs. Attorney General of the Federation (2012) ALL FWLR 1617, per Galadima, J.S.C.; Fagbenro vs. Arobadi (2006) All FWLR Part 310 page 1575; Adeyeye vs. State (2013) All FWLR Part 704 page 108; Olusanya vs. Osinleye (2013) All FWLR PART 693 page 1930; Obueke vs. Nnamchi (2012) All FWLR Part 633 page 1840; Otukpo vs. John (2012) 212 LRCN 141; Wachukwu vs. Owunwanne (20110 197 LRCN 33 and Kaydee Ventures Ltd vs. Minister, FCT (2010) 181 LRCN 69 and submitted that this is not one of the cases where the appellate Court can interfere with the findings of the lower Court because where the trial Court unquestionably evaluated the evidence and exhaustively appraised the facts before it, it is not the business of the appellate Court to substitute its own view for that of the trial Court. He argued that the Appellants have not shown that the findings of the lower Court were perverse, or unsupported by evidence.
He stated that the only complaint of the Appellants is that there were material contradictions in the Respondenta evidence regarding the other properties the Appellant claimed he had in the pseudonym, that he used the pseudonym to buy property to avoid the the property being seized by his former master, and that he registered the Deed of Assignment and the Building Lease in 1976 while C.W.2 claimed the Claimant visited him in Enugu in 1966 when he came to register the document. He contended that there are no material contradictions in the evidence proffered by the 1st Respondent in that it is immaterial whether the 1st Respondent owned other properties in the pseudonym used in purchasing the property in dispute as that can only be speculative.
He further pointed out that no contradiction existed in the testimony of the 1st Respondent that he had a flourishing business because he spoke mainly of the property in dispute in respect of which he used the pseudonym. Also, there is no contradiction as to the source of title of the Claimant since he gave evidence that he bought the said property from Agwu Okpan and was subsequently granted a Deed of Lease by the Imo State Government. He explained that by the evidence of C.W.1 and C.W.3 the 1st Respondent registered or at least paid the Stamp Duty in 1966 upon purchase of the property but was subsequently granted Exhibit A, the Building Lease, in 1976. He then submitted that the trial Court was right in holding that the case of the Appellants were speculative and that there is nothing before this Court to compel it to disturb the findings of the lower Court.
Then on the argument of the Appellants that the pseudonym was created to perpetuate fraud, he contended that the same was not canvassed before the lower Court and as such the Appellants are precluded from raising the same herein, more so no ground of appeal was raised in that respect.
He further pointed out that the aspect of the decision of the lower Court on trespass was not appealed against and no ground of appeal supports that. He relied on the cases of Our Line Ltd vs. S. C. C. Nig. Ltd (2010) 179 LRCN 154; Onyemaizu vs. Ojiako (2010) 182 LRCN 86 and Nwaogu vs. Atuma (2013) 221 LRCN Part 2 page 1 and Tomtec Nig. Ltd vs. FHA (2010) 179 LRCN 1 and submitted that where a party fails or decides not to appeal against decision of a Court of law, he is deemed to have accepted that decision and is consequently bound by it. He elaborated on grounds six and seven and then urged this Court to dismiss this appeal.
The Appellant filed a Reply Brief and urged this Court not to countenance the 1st Respondents preliminary objection that the issues formulated did not arise from any of the grounds of appeal. He cited the cases of Chitex Industries Ltd vs. Oceanic Bank Nigeria Limited (2005) 23 NSCQR 148 at 150 and 159; Patrick D. Magit vs. University of Agriculture Markurdi & Ors (2005) 24 NSCQR 143 at 146; Stirling Civil Engineering (Nig) Ltd vs. Ambassador Mahmoud Yahaya (2005) 22 NSCQR 1 at 21, per Edozie, J.S.C., Chief Joshua Alao vs. Alfa Issa Akano & 2 Ors (2005) 22 NSCQR 867 at 870, per Musdapher, J.S.C., (as he then was) and submitted that the Appellants first issue relates to grounds 1-8 excluding ground 5 which question evaluation of evidence that led to wrong findings by the lower Court. He stated that the law is that once issues for determination are framed, the grounds of appeal abate as appeals are determined based on the issues formulated and not the grounds. Also, issue cannot be based on the Particulars but on the grounds of appeal. He further urged that the preliminary objection raised be overruled.
In responding to the arguments of the 1st and 2nd Respondents, he conceded that the point of concealment of fraud by the use of the pseudonym was not canvassed by the Appellants in the lower Court but he argued that that did not foreclose the trial Court from considering such material evidence adduced before it. He said that they raised it as a subordinate issue in support of their overall position that the evidence was inappropriately evaluated. He repeated that the Claimant having abandoned his relief 5, it was wrong for the trial Court to have found for him in trespass.
I have given an anxious consideration to the issues presented by the parties particularly to the preliminary objection raised by the Respondent that none of the issues postulated by the Appellants emanated from any of the grounds of appeal in the Amended Notice of Appeal. Ground 1 complained about the lower Court using extrinsic matters in arriving at its conclusion on ownership of the property instead of considering Exhibits A and P when none of the exceptions inSection 128(a) of the Evidence Act as amended were pleaded by the Claimant and, 1st and 4th Defendants/Appellants. Ground 2 complains about dismissal of the respective counter-claim of the Defendants without considering Exhibits A, P and P1. Ground 3 highlighted the inconsistencies in C.W.3s and the Claimants evidence as to when the title documents were registered i.e. 1966, 1972 and 1976 and the acceptance of the trial Court of such evidence which led to miscarriage of justice. Ground No. 4 alleged that the trial Court failed to invoke Section 167 (d) of the Evidence Act, 2011 as amended when the Claimant failed to produce his Purchase Agreement in respect of the property in dispute and the title document of the house in Kaduna.
Ground five complains about the trial Courts wrong application of the law regarding evidence extracted from a witness during cross-examination. Ground six is about the trial Courts holding that the entry into the premises by the 1st and 2nd Defendants and the 3rd Defendant into the premises amount to trespass when in fact the Claimant had abandoned his fifth relief. Ground seven concerns the evidence of the Claimant that his master was in the habit of seizing and impounding the properties of his past apprentices. Ground eight complained about the trial Courts mistake in finding that Exhibit P dated 16/6/1972 written by the wife of OkorieKalu Amogu (deceased) referred to the property in dispute and another in Kaduna as belonging to her husband. From the summation given, I am inclined to agree with the Respondents Counsel that none of the issues raised in the Appellants Brief of Argument arose from grounds 1 to 8. Accordingly, the said grounds are hereby struck out.
The remaining ground is ground nine which complains about the weight of evidence. Only issue No. 1 can be argued to have emanated therefrom. Issue 2 is baseless and was proliferated and as such cannot be allowed to stand. Accordingly, issue No. 2 is hereby struck out having not been hinged on any ground of appeal. Therefore, the remaining issue for consideration in this appeal is the Appellants issue 1. Its now the lone issue in this appeal, that is to say, Whether the judgment of the Court below was justified and reflected the weight of evidence before it given the quantity and quality of evidence before the Court as to prevent same from being sent aside by this Court.
The case of the 1st Respondent is that the property in dispute situated at Plot 7 Block 5 Umuahia Layout and particularly described as No. 23 Item Street, Umuahia, Abia State, and registered as No. 17 at page 17 in Volume 51 in the Land Deed Registry, Umuahia, is his bona fide property which he does not own jointly with any of his siblings except that he used the first names of two of his siblings and his as a pseudonym to purchase the property to avoid his former master who was in the habit of seizing his former servants properties from seizing the same. He acquired the property by purchase and later obtained a registered Building Lease in of the same which he tendered as Exhibit A. He filed replies to the respective counter-claims of the Defendants. He made it clear under cross-examination that he invented that name to buy properties. He denied buying the property jointly with his late brothers.
The property was bought by him in 1966 and he allowed some of his brothers to live in the house out of his benevolence and those his brothers never laid any claim to the property. There was no suggestion that the Claimant was not buoyant enough in the 1960s to have purchased such a property. The evidence before the lower Court was that he was a flourishing business man before the Nigerian Civil War. C.W.2 said he was 90 years as at the time he testified on 18/6/2012 and he was present when the Claimant and IbeOkpo, his own brother, signed the agreement. Ibe Okpo died in March, 2011. He did not know Okorie, the elder brother of the Claimant and did not know if he lived in Kaduna in 1966. One Mr. KaluNwankwo testified as C.W.3. He narrated all he knew about the property in 1966. He tendered a receipt dated 22/7/1966 as Exhibit M. He said he was 76 years old. He was 19 years on the 1st April, 1956 when he joined the Police. The day the Claimant came to Enugu, he told him he came to register the property he bought.
The 1st Respondent was consistent on the fact that he purchased the property in the pseudonym. There was no counter evidence to the effect that the land was indeed purchased by the three brothers. In fact D.W.1 who claimed that it was Okorie Kalu Amogu, who was a Station master in the Kaduna North Railway that opened the store in which the Claimant traded for both himself and the Claimant, turned round to say that the said Okorie Kalu Amogu joined the Railways in 1967. The business was financed by Okorie. He was quite evasive about the business of the Claimant whom he stated is his brother of full blood. He said he was not present when No. 23 Item Street was purchased but he was told that OkorieKalu physically bought the property. He said he knew the property was bought in 1966 but was registered in 1976. He was shown Exhibit M dated 22/7/1966 and he confirmed that the name on it is UcheKalu Amogu the name of the Claimant.
Further down during his cross-examination, he said that Okorie was the purchaser of the property, that he bought it and included the names of his other brothers. D.W.2 was also cagey. He said his father physically paid for the property in dispute. He could not recall whether he paid in person or through someone. He was not aware that in 1978 there was a Letter of Administration over his late fathers estate. He was not aware of Exhibit H. He said it was not in 2010 he started laying claim to the property but 1984. Then in 2010 he went to the Claimant after the death of Mba for them to put the record straight as his children were also laying claim to the property. He said he started laying claim to the property as a joint property of his father, the Claimant and Mba when they discovered that the Claimant used three names to register the property. He said that the Claimant decided that three of the brothers should own the property when he carried out the registration. He tried to be a bit smart and said that his father was the sole owner but based on the registration it became a joint ownership. Before the registration, the property belonged to his father solely.
His father did not instruct the Claimant to use the names. His father never told him that there was a time his father, Uche and Mba agreed to buy a joint property. Under further cross-examination by Mr. Ogwo, he said that his father never left a Will and the Letters of Administration was in respect of his personal property.
D.W.3 from the Administrator Generals Office said during their search they were not shown any document establishing that they people they said were co-owners of the property jointly agreed to purchase the property. From the search, they discovered that the property in question was purchased in 1966. He did not see the Power of Attorney he claimed established that. From his knowledge, the Claimant had been managing the estate from inception. D. W. 3 was shown Exhibit H, the Letters of Administration obtained upon his death. He confirmed that it was in respect of the estate of Okorie Amogu Kalu. He became cagey when asked whether Letters of Administration are granted for real estate and personal estate, and that if additional discoveries were made after the grant, it will be handed over to the Administrator General. He did not know who registered the land and it was registered when Okorie Kalu Amogu was alive.
D. W. 4 said he was 7 years. He was also not forthcoming in his answers. He was also shown Exhibit H and when asked that the only thing found as his fathers property was the money in the Bank, he answered that was a matter of law. He denied knowledge of the Claimant serving as his apprenticeship under Kalu Nnachi despite his earlier admission on 2/8/2012 that he served under Kalu Nnachi in Aba.
It has been the case of the late Chief Uche Kalu Amogu whom the 1st and 2nd Respondents substituted, that he personally bought the property in dispute under a pseudonym. He adopted the pseudonym Amogu, Okorie Uche Mba to escape the overbearing attitude of his former master, Kalu Nnachi, who was in the habit of seizing the properties of those who served their apprenticeship under him and started businesses under their own and acquired property. He tendered the documents in support of his acquisition and ownership of the house under a pseudonym. It was never suggested before the trial Court that it was against any laws governing contract of sale of land in Kaduna State to purchase a property under a pseudonym or in another person(s) name. Also there is no law prohibiting purchase of land under a pseudonym. As has been stated, a pseudonym or alias is a name that a person or group assumes for a particular purpose, which can differ from their first or true names. It can be used in businesses or even purchases to conceal the true identity of the dealer or buyer.
In the instant matter, issue of fraud did not arise as it was never canvassed nor proved before the lower Court. This was conceded by the Appellants Counsel. I equally find Exhibit H quite illuminating as it offered insights into the Estate of the late Okorie Kalu Amogu who was on one hand alleged to have purchased the property in dispute by his son, and who died on 12/7/1971 at Enugu, intestate and who had at the time of his death his fixed place of abode at Okagwe, Ohafia. The said Letters of Administration was granted to the Uche Kalu Amogu of No. 23 Item Street, Umuahia. It was in respect of the personal property of the said late Okorie Kalu Amogu found in the Banks listed therein. Under the column for Leasehold Property, it recorded Nil, indicating there was no known landed property of the late Okorie Kalu Amogu captured in Exhibit H.
The trial Court found as a fact that the Claimant had been in possession of the Title Deeds since the property was purchased in 1966, that he registered Exhibits A and P1 and had lived in and managed the property since 1967 and that Okorie Kalu Amogu and Mba Kalu Amogu who at one point or the other lived in the property never challenged him at any time during their lifetime. It further found that the case of the Defendants were based on speculations and not backed up by any credible evidence. The trial Court further referred to the evidence of the 1st Defendant under cross-examination that the Claimant alone knows the reason for registering the property in that name and in the absence of any credible evidence to the contrary, the name used by the Claimant to register the property is a pseudonym and is not evidence of joint ownership of the property at No. 23 Item Street, Umuahia. I wholly agree with this finding and have no convincing reason to interrupt the same. After taking cognisance of all the arguments tendered and the legal authorities cited by Counsel, I am of the firm view that this appeal lacks merit in its entirety. It should be noted that the 3rd Defendant did not appeal against any aspect of the judgment of the lower Court. Consequently the same is hereby dismissed with no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother THERESA NGOLIKA ORJI-ABADUA JCA.
I agree with her reasoning and conclusion.
The appeal lacks merit and same is hereby dismissed by me.
No order as to costs.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my Lord, ORJI-ABADUA, JCA in the lead judgment and also dismiss the appeal.
Appearances:
Nwabueze I. Nwankwo, Esq.For Appellant(s)
Obasi Awa, Esq. for 1st and 2nd RespondentsFor Respondent(s)
