MR. AGBAI OJEBE NDUKWE v. ADMINISTRATOR-GENERAL OF ABIA STATE
(2019)LCN/12643(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of February, 2019
CA/OW/83/2015
RATIO
LAND LAW: THE SALE OF FAMILY PROPERTY
“Let me say that I know of no law which requires only the first son of a deceased to surrender an unrepresented Estate to the Administrator-General Indeed, dealings with the family land must be carried out with caution. In the case of SOWUNMI VS. AYINDE (2011) 1 NWLR (PT. 1227) 122 at 127 Ratios 5 and 6 it has been held:- ‘The sale of family property without the consent of some of the principal members of the family is voidable while any sale or dealing with the land carried out by principal members of the family without the consent of the head of the family is null and void and again ‘sale of family land by a member of the family without the consent of the head or principal members of the family is void ab initio. The head of family must, under customary law join in conveyance, lease, or disposition of family land and the principal members must consent thereto otherwise such a disposition is void ab initio.'” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
MR. AGBAI OJEBE NDUKWE Appellant(s)
AND
ADMINISTRATOR-GENERAL OF ABIA STATE Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
This appeal originated from the decision of Hon. Justice Onuoha A. K. Ogwe, J. of the High Court of Justice, Abia State of Nigeria, Aba Judicial Division, given on the 31st day of March, 2014 in Suit No.A/459/2002, against the Defendant and in favour of the Claimant.
The Claimant in the Court below, in paragraph 21 of the Amended Statement of Claim dated 29th June, 2012 and filed on 4th July 2012, (pages 28-31 of the Record of Appeal) had claimed against the Defendant the following reliefs: –
(i) A declaration that the estate of late Rev. Soe Christian Joseph Ogolo is validly vested in the Claimant, and therefore any sale, transfer and/or disposition of the property by the deceased himself long after his death, and/or any unauthorized person(s) without any legal authority or instrument is unlawful, fraudulent and void.
(ii) A declaration that the purported sale of the piece or portion of land in question to late Mr. Ezikpe Uche A. by late Chief Nwangwa Ogbonna, and the subsequent transfer of the property to Mr. Agbai Ojebe Ndukwo by late Mr. Ezikpe Uche A. while there were pending law suits in Court touching on the subject matter yet to be determined was embarrassing, vexatious, fraudulent and void ab initio.
(iii) A declaration that the entire transactions and registrations, including the certificate of occupancy of the aforesaid property, situate at Ehere Aba Ogbor Hill known and called ?OKWAMATUCHE UGBANKWUBAWANWAITE? Aba by any unauthorized person(s) including Mr. Agbai Ojebe Ndukwo is a nullity and of no effect.
(iv) A declaration that the Claimant is entitled to take, and should take possession forthwith the property in issue for the benefit of the beneficiaries of the estate of the deceased whose estate is the subject matter in this suit.
(v) An order of the Court revoking the purported certificate of occupancy dated 27/5/99 and registered as 20/20/44; and the deeds of Power of Attorney dated and registered as 14/3/2006 and 73/73/789 of the Lands Registry Office Umuahia Abia State by the Defendant now on record forthwith.
(vi) An order of perpetual injunction restraining the Defendant, his agent(s), servant(s), privies and/or any person(s) claiming through him from interfering in or further meddling with the said property of Rev. Soe J. Ogolo (deceased).
(vii) N15,000,000.00 (Fifteen Million Naira only) for trespass, and general damages against the Defendant.?
The facts of this Case are as follows: –
By a Deed of Lease dated 21/10/1974 and registered as No. 62 at Page 62 in Volume 762 of the Lands Registry in the Office at Enugu now Umuahia, Abia State of Nigeria, Nwamuo Nwangwa (the Lessor) therein demised unto Rev. Soe Christian Joseph Ogolo (the Lessee) a large parcel of land known as, called and situate at ‘OKWAMATUCHE UGBANKWUBANWAITE EHERE VILLAGE’ in the then Obioma Ngwa now Obingwa Local Government Area of Abia State of Nigeria, measuring approximately 6.017 Acres and more particularly described and delineated in Survey Plan Number SE/KCA 27/27 and therein verged PINK TO HOLD THE SAME UNTO THE LESSEE commencing from the 21st day of October, 1974 for a term of 99 years(EXHIBIT D).
The said Rev. Soe Christian Joseph Ogolo died on the 25th day of December 1976, without paying the agreed annual rent in respect of the said Lease Agreement.
Moreover, it was alleged, no successor of the said LESSEE paid annual rent in respect thereof. The Claimant, however, alleged that annual rent was paid for 1987, 1988, 1989, 1990, 1991, 1992, and 1993 without paying for 1994, 1995, and 1996 which represented three consecutive years for non-payment of annual rent by the Claimant in respect of the property in dispute.
Being peeved by the said non-payment of annual rent and selling of almost all the land in dispute by Rev. Soe Christian Joseph Ogolo and his successors in contravention of the terms of the said Deed of Lease (i.e. EXHIBIT ‘D’), Chief Ogbonna Nwangwa, as the first son to the LESSOR and by virtue of Customary Inheritance and Devolution of Property in Ngwa Community of Abia State of Nigeria, re-entered the said land in dispute and sold it to Mr. Uche Achirihu Ezikpe in 1997 who in turn sold to Agbai Ojebe Ndukwo on 10/02/2003. However before then, precisely on 19th December, 1995 Rev. Alexander I. C. Ogolo had surrendered the estate of late Rev. Soe Christian Joseph Ogolo to the Administrator-General of Abia State, who initiated the proceeding which has culminated in this appeal.
The Claimant, having taken over the administration of the estate, took out a Writ of Summons and a Statement of Claim dated 4th day of September, 2002 and filed on the 6th day of November, 2002 respectively against Mr. Uche Achirihu Ezikpe claiming the reliefs earlier reproduced above. Issues were joined and case went to trial, at the end of which the Lower Court entered judgment for the Claimant, and against the Defendant, as follows:-
1. A Declaration that the estate of Rev. Soe Christian Joseph Ogolo is validly vested in the Claimant and therefore any sale, transfer and/or disposition of the property by any unauthorized person(s) without any legal authority or instrument is unlawful and void.
2. A Declaration that the purported sale of the price (sic) of land in question to Mr. Ezikpe Uche by Chief Nwangwa Ogbonna and the subsequent transfer of the property to Agbai Ojebe Ndukwo by Mr. Ezikpe Uche A., while there are pending law suits in Court touching on the subject matter yet to be determined is void.
3. A Declaration that the Claimant is entitled to take possession of the property in issue for the benefit of the beneficiaries of the estate of the deceased Rev. Soe Ogolo.
4. An order of perpetual injunction restraining the Defendant, his agents, servant(s), privies and/or any person claiming through him from interfering in or further meddling with the said property of Rev. Soe J. Ogolo (Deceased).
Piqued by that judgment, the Defendant, with the leave of the Lower Court, granted on the 3rd day of June, 2014 appealed to this Court vide Notice of Appeal contained at Pages 203 ? 2010 of the Record of Appeal. With the leave of this Court granted on the 4th December, 2017, the Notice of Appeal was amended. The Amended Notice of Appeal contains seven (7) grounds. The relief sought from this Court is the reversal of the decision of the Learned Trial Judge and dismissal of the action for being incompetent.
The Claimant on the other hand filed a Notice of Cross Appeal on 11th December, 2017 containing two (2) grounds. The relief sought from this Court is to reverse part of the decision of the Lower Court for refusing to grant the aforesaid reliefs iii and v and then grant the said reliefs and award damages for trespass to the Claimant.
Henceforth I shall refer to the parties as the Appellant and Respondent respectively. Since there is a cross appeal, when I get to that stage I shall refer to the parties by their appropriate nomenclatures.
Now the Grounds of Appeal, per the Amended Notice of Appeal, shorn of their particulars, are as follows:-
GROUND 1
The Learned Trial Judge erred in Law when he held that Chief Ogbonna Nwangwa did not act under the authority of the Lessor to re-enter and re-possess the land in dispute.
GROUND 2
The Learned Trial Judge erred in Law when he held that Chief Ogbonna Nwangwa did not give his unequivocal notice of his intention to re-possess the land in dispute to the relevant and affected Lessees. This was not done with the possible effect that the family of Rev. Soe Ogolo might not have known that the successor in title of Nwanmuo Nwangwa had re-possessed the Land.
GROUND 3
The Learned Trial Judge erred in Law when he held that the 1974 Lease was not validly determined.
GROUND 4
The Learned Trial Judge erred in Law when he stated that the Defendant did not call Rev. Dr. Godswill Ogolo and no Nwangwa Family member to give evidence for him.
GROUND 5
The Learned Trial Judge erred in law when he held that there was no abuse of Court process.
GROUND 6
The Learned Trial Judge erred in law when he held that the Defendant cannot challenge the locus standi of the Claimant when the Claimant is not a juristic person.
GROUND 7
The Learned Trial Judge erred in law when he failed to evaluate the evidence and cited authorities presented before him by both parties before arriving at a decision.
For the Respondent, the Grounds of Cross Appeal, shorn of their particulars, are as follows:-
GROUND ONE: ERROW IN LAW
The learned trial Judge erred in law for refusing to grant reliefs iii and v after he found for Claimant/Respondent/Cross Appellant in his judgment which said reliefs are as of right to the Respondent/Cross Appellant.
GROUND TWO: ERROW IN LAW
‘The learned trial judge erred in law for failing to award damages for trespass to the Claimant/Respondent/Cross Appellant as claimed in relief vii of the Amended Statement of Claim dated 29/6/2012 and filed on 4/7/2012.’
From the seven (7) grounds of Appeal filed by the Appellant, three (3) issues were distilled for determination as follows:-
1. WHETHER the property in dispute was validly transferred to the Respondents.
2. WHETHER the Court below considered, evaluated and appraised the issues and authorities cited by both Counsel before arising (sic) at a decision that the sale of the land in dispute by CHIEF NGWANGWA OGBONNA and subsequent transfer of the property to AGBAI OJEBE NDUKWO by MR. EZIKPE UCHE A., while there are pending law suits in Court touching on the subject matter yet to be determined is void.
3. WHETHER the Amended Statement of Claim dated 29th day of June, 2012 is an abuse of Court process and the beneficiaries of LATE REV. SOE CHRISTIAN JOSEPH (sic) OGOLO guilty of standing by i.e. laches and acquiescence or not and the juristic personality of the Respondent.
The Respondent adopted the three issues formulated by the Appellant, except that he recast issue 1 to be ‘whether the estate of late Rev. Soe Christian Joseph Ogolo which includes the property in dispute is validly vested in the Respondent which is the main issue in this case.’ However, in respect of the Cross Appeal, two (2) issues were formulated as follows:-
(i) Whether the learned trial judge was right not to have granted reliefs (III) and (V) of the Claimant having found that everything Mr. Ezikpe did pursuant to the illegal sale to the defendant was of no effect, that the defendant did not acquire a valid title from him and that the Claimant proved his case as required by law.
(ii) Whether the Respondent/Cross Appellant is entitled to award of damages having proved unlawful and illegal entry/trespass into the property in dispute by the Appellant/Cross Respondent and as provided by law
I shall first take the issues in the main appeal.
ISSUE 1
The Learned Appellant’s Counsel Elder Abba Awosley Otisi Esq., who settled the Brief for the Appellant submitted that the property in dispute was not validly transferred to the Respondent on the ground that Exhibit ?E? (the letter of authority) given to Barr. Alex I. C. Ogolo to surrender the land in dispute to the Respondent, and Exhibit ?F? (Letters of Administration) founded thereon are invalid and therefore cannot confer any right or interest on the Respondent.
Secondly, that Exhibit ‘E’ was neither signed by Rev. Dr. Godswill M. T. Ogolo (Head of Rev. Soe Christian Joseph Ogolo’s Family) nor any other principal member of the said family, thereby invalidating, rendering null and void the sale of or dealing with the family land carried out by the principal members of the family, relying on BODE SOWUNMI VS. FLORA IYABODE SOWUNMI AYINDE (2011) 1 NWLR (PART 1227) 122 at 127 (RATIO 5).
Thirdly, that Exhibit ‘E’ is suspect and its originality and authenticity doubtful and was contrived for the purposes of this case, urging this Court to so hold, relying on HON. DR. OKECHUKWU UDEH VS. BARR. HANDLE OKOLI (2009) 7 NWLR (PART 1141) 571 AT PAGES 576 AND 577 (RATIO 4).
Fourthly, that the failure of Barr. Alex I. C. Ogolo to obtain the consent of the LESSOR of Exhibit ‘D’ or that of Chief Ogbonna Nwangwa or of his beneficiaries before surrendering the land in dispute to the Respondent divested Barr. Alex I. C. Ogolo of the power to surrender the land in dispute to the Respondent and consequently non-compliance with the condition contained in Exhibit ‘D’ renders Exhibit ‘E’ null and void, relying on the Supreme Court case of S.S. GMBH VS. T. D. INDUSTRIES LTD. (2010) 11 NWLR (PART 1206) 589 AT 596 (RATIO 9).
Fifthly, Learned Counsel referred to the evidence of DW1 contained in paragraph 21 (i) and (ii) of his Written Statement on Oath (Page 110 of the Record of Appeal) and submitted that since the evidence was unchallenged, uncontradicted and uncontroverted, it is deemed admitted and the Court is bound to act on it except if it is manifestly unreliable. Reliance is placed on the following cases:-
1. AKITOYE VS. ADERO (2011) 6 NWLR (PART 1244) 415 AT 425 (RATIO 15).
2. MUNIYAS NIGERIA LIMITED. VS. ASHAFA (2011) 6 NWLR (PART 1242) 85 AT 92 (RATIO 11).
The Respondent’s Counsel A. I. C. Ogolo Esq., pointed out that this issue did not form part of the pleadings or defence at the Trial Court but it is rather the surrendering of the unrepresented intestate estate of the deceased Rev. Soe Christian Joseph Ogolo to the Respondent which is essential.
He then urged the Court to discountenance the issue of transfer as canvassed by the Appellant in this issue, and to decide this appeal based on the rephrased issue which reads ‘whether the estate of late Rev. Soe Christian Joseph Ogolo, which includes the property in dispute is validly vested in the Respondent” which is the main issue in this case.
The Learned Counsel made reference to Page 28 of the Record defining the Legal status of the Respondent which was not challenged or denied or controverted or contradicted by the Appellant in his Amended Statement of Defence, Rejoinder and in his final written address and Reply on points of Law at Pages 62 – 77, 88 – 90, 118 – 142, and 184 – 195 of the Record of Appeal, and submitted that the Administrator-General has the power under Sections 13 and 14 of the Administrator-General Law of Eastern Nigeria which is applicable in Abia State to:
(a) Present a petition praying for grant of probate or letters of Administration or
(b) Enter upon the said estate before obtaining the grant of probate and letters of Administration for the purpose of sealing up or making such other dispositions for the security of the estate, relying on:-
(i) ANOWO VS. ANOWO (1991) 7 N.W.L.R. (PT. 201) 62 RATIOS 4 & 5,
(ii) CHUKWUMA VS. CHUKWUMA (1993) 1 N.W.L.R. (PT. 268) 365 AT 368 RATIOS 4 AND 5,
(iii) PAGES 154 – 157 OF THE RECORDS.
(iv) SECTION 2 AND 3 OF THE ADMINISTRATION OF REAL ESTATE LAW APPLICABLE IN ABIA STATE.
Submitting further, Counsel urged this Court to hold that the estate of the deceased Rev. Soe Christian Joseph Ogolo who died intestate on the 25th Day of December, 1976 is validly vested in the Respondent by virtue of:
(a) The unrepresented nature of the estate,
(b) The estate was duly surrendered to him and
(c) Letters of Administration of the personal properties/real estate of the deceased in Abia State dated 20th November, 1997(Exhibit ‘F’).
Counsel relied on Exhibit ‘E’ and AYORINDE VS. AYORINDE (2004) 13 NWLR (PT. 889) 83 AT 86 & 87 RATIOS 3 – 6 and submitted that the said Exhibit is not a letter of authority but a letter from Rev. Alexander I. C. Ogolo to the Acting Administrator-General of Abia State surrendering the administration of the deceased’s estate to him and not transferring or surrendering the land in dispute to the Administrator-General.
In respect to Exhibit ?F?, Learned Counsel submitted that it is not founded or based on Exhibit ‘E’ and that the Respondent is duty bound by the operation of law to act under Sections 13 and 14 of the Administrator-General of Eastern Nigeria Law applicable in Abia State, relying on ANOWO VS. ANOWO (Supra) and CHUKWUMA VS. CHUKWUMA (Supra).
On non signing of Exhibit ‘E’ by the head of the family and/or principal members of the late Rev. Soe Christian Joseph Ogolo, Learned Counsel submitted that there is no law compelling such compliance and that any beneficiary of an estate of a deceased person can validly surrender same to the Respondent for proper management, hence, Alexander I. C. Ogolo Esq., being one of the beneficiaries of the estate and a principal member of the family has the power to surrender the entire unrepresented intestate estate of his deceased father to the Respondent and not particularly the family land in dispute as alleged by the Appellant.
Referring to Exhibit ‘D’, Learned Respondent’s Counsel submitted that the position of the Appellant on same is incorrect as there is nowhere in the said Exhibit ‘D’ where the beneficiaries of the LESSEE will not and cannot surrender the deceased’s unrepresented intestate estate to the Respondent without the consent of the LESSOR hence Barr. Alex I. C. Ogolo simply surrendered same to the Respondent rather than parting with the possession of the demised land or any part thereof. He referred to page 79 paragraphs 5 and 10 of the Record and the case of BRIGGS VS. C.L.O.R.S.N. (2005) 12 NWLR (Pt. 938) 59 AT 67 RATIO 6 which he quoted in extenso and submitted further that the Appellant is a stranger and not a party to the Deed of Lease agreement between Nwamuo Nwangwa and Soe J. Ogolo and as such cannot complain or contend that the deceased Rev. Soe J. Ogolo did not fulfill the conditions for a renewal of the Lease.
On the reference of the Appellant to paragraph 21 (i) and (ii) of the Written Statement on Oath contained on page 110 of the Record of Appeal to the effect that the averment therein was not challenged or contradicted or controverted, Learned Respondent’s Counsel submitted that the position of the Appellant’s Counsel is misleading as the Respondent’s position was made clear on page 81 paragraph 22 of the Record of Appeal i.e. the Respondent?s Reply to the Statement of Defence and page 100 paragraph 26 of the Record i.e. the further written statement on Oath of CW1 relying on AYORINDE VS. AYORINDE (Supra) RATIO 5.
Finally on issue 1, Learned Respondent’s Counsel submitted that since there was no caveat on the application of the Respondent for the grant of the said Letters of Administration and no Court Order stopping him from obtaining it, its grant to the Respondent was right even while Suit No. A/469/96 was pending in Court alongside Suit No. A/71/97.
ISSUE 2
Elder Abba Awosley Otisi Esq., Learned Appellant’s Counsel submitted on this issue that the Court below did not consider, evaluate and appraise the issues and authorities cited by Counsel before arriving at its decision that the sale of the land in dispute by Chief Ogbonna Nwangwa to Mr. Uche Achirihu Ezikpe and the subsequent transfer of the property to the Appellant while there were pending law suits in Court in respect of the subject matter yet to be determined is void. The issue said not to have been considered by the Lower Court was the legal right of Chief Ogbonna Nwangwa to re-enter the land in dispute and sell part to late Mr. Uche Achirihu Ezikpe who in turn sold to the Appellant by virtue of Exhibits ‘A’ ‘D’ ‘K’ ‘L’ and ‘M’. Learned Appellant’s Counsel emphasized non-compliance with the proviso in Exhibit ‘D’ by late Rev. Soe Christian Joseph Ogolo and/or his beneficiaries and customary inheritance and devolution of property in accordance with the Native Law and Custom of Ngwa Community of Abia State of Nigeria to be the ground for the re-entry into the land in dispute and submitted that the parties to Exhibit ‘D’ were bound by it and no one is permitted to use parole evidence to alter its terms, relying on VINCENT I. EGHAREVBA VS. DR. OROBOR OSAGIE (2009) 18 NWLR (PART 1173) 299 AT 302 (RATIOS 1 AND 2).
It is further submitted that the LESSEE and his beneficiaries in Exhibit ?D? had breached the terms and conditions therein contained by non-payment of annual rent for three (3) consecutive years i.e. 1994, 1995, and 1996 making the Exhibit ‘D’ not to be binding on Chief Ogbonna Nwangwa when he sold the land to Mr. Uche Achirihu Ezikpein 1997.
The second issue said not to have been considered by the Lower Court is in respect of Exhibits ‘H’, ‘H1’, ‘H2’, and ‘H3’ which were allegedly tainted with fraud and forgery (page 131 of the Record of Appeal). Learned Counsel then urged us to hold that the LESSEE and his beneficiaries had never paid annual rent in respect of Exhibit ‘D’ which was binding on the parties, the sanctity of which a Court of Law must always respect and that the Respondent did not deserve any grant of any declaratory relief whatsoever. In this wise, submitted Learned Counsel the contract contained in Exhibit ?D? was considered extinguished by Chief Ogbonna Nwangwa who had the liberty and the legal right to treat it in that manner. He relied on the Supreme Court decision in:-
BEST NIGERIA LIMITED. VS. BLACKWOOD HODGE NIGERIA LIMITED. (2011) 5 NWLR (PART 1239) 95 AT PAGES 102, 103, AND 104 (RATIOS 5, 6, 8 AND 10).
The third issue said not to have been considered by the Lower Court is securing the consent of Rev. Dr. Godswill M. T. Ogolo who is the head of the family of Rev. Soe Christian Joseph Ogolo(deceased) who also acquiesced to the re-entry of the land in dispute by Chief Ogbonna Nwangwa. Counsel drew attention of the Court to the fact that Rev. Dr. Godswill M. T. Ogolo signed Exhibit ?K? which is the Power of Attorney executed by Chief Ogbonna Nwangwa in favour of Mr. Uche Achirihu Ezikpewho in turn sold the land to the Appellant, referring to Page 132 of the Record of Appeal.
Learned Counsel stated that it is unconscionable for the Court below to indict the Appellant for not calling Rev. Dr. Godswill M. T. Ogolo as a witness when in fact the Respondent mentioned his name on its Statement of Claim dated 4th September, 2002. He referred to page 2 of the Record of Appeal and contended that it was the duty of the Respondent to have joined the said Rev. Dr. Godswill M. T. Ogolo in the Suit and that his non-joinder as a necessary party is fatal to the Respondent’s case, relying on DR. BENJAMIN OHIAERI VS. ALHAJI B. I. YUSSUF & 5 ORS. (2009) 6 NWLR (PART 1137) 207 AT 214 AND 215 (RATIO 6).
It is the further submission of the Learned Counsel for the Appellant that where necessary parties are not joined in an action, the said action is not properly constituted which adversely affects its competence and consequently the jurisdiction of the Court to determine it. And accordingly the non-joinder of Rev. Dr. Godswill M. T. Ogolo whom the Respondent shielded throughout trial in the Court below, as a party, renders the action not properly constituted as persons against whom complaints are made in an action must be made parties to such action. He relied on:-
1. AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PART 676) 522 AT 528 (RATIOS 9, 10, 11 AND 12) SC.
2. EZIONWU VS. EGBO (2006) 5 NWLR (PART 973)316 AT 321 (RATIOS 1, 2 AND 4). C.A.
The fourth instance of non-consideration by the Lower Court is the failure of the Respondent to call Rev. Dr. Godswill M. T. Ogolo and other principal members of the family of late Rev. Soe Christian Joseph Ogolo to testify during trial. It was therefore submitted that where a party to a case fails, refuses or neglects to call a vital witness whose evidence may help to decide the case one way or the other, it will be presumed that the evidence of such witnesses if called would have been unfavourable to that party, relying on ADEREMI OMOTAYO VS. THE STATE (2013) 2 NWLR (PART 1338) 235 AT 241 AND 242 (RATIO 8).
On lis pendens, Counsel noted that Mr. Uche Achirihu Ezikpe sold his land vide Exhibit ?M? dated 10th February, 2003 while the Court processes in respect of the Respondent?s action were served on him on the 9th day of May, 2003 and that the case of KOLAWOLE ORONTI VS. ALHAJI S. A. ONIGBANJO (2012) 12 NWLR (PART 1313) 23 at 24 and 25 (RATIOS 1 and 2) was cited in support yet the trial Court refused and neglected to consider, evaluate or appraise it before arriving at its decision, just like it refused to consider the following authorities:-
1. MOJEED SUAKA YUSUF VS. MADAM IDIATU ADEGOKE (2007) II NWLR (PART 1045) 332 AT 337-339 (RATIOS 2, 3, 4 AND 5).
2. ALHAJI SABIRIYU SHITTU VS. OTUNBA OYEWOLE FASHAWE (2005) NWLR (PART 946) 671 AT 674 AND 675 (RATIO 2).
3. ISAMOTU A. ASHIRU VS. ADETOUN OLUKOYA (2006) II NWLR (PART 990) 1 AT 5 AND 6 (RATIO 2).
4. IREJU NWOKEDI VS. MARK OKANU (2010) 3 NWLR (PART 1181) 362 AT 372 (RATIO 12).
5. MICHAEL ODUNZE VS. NWOSU (2007) 18 NWLR (PART 1050) 1 AT 14 (RATIO 16).
In concluding issue 2, Learned Appellant’s Counsel submitted that the judgment of the Lower Court delivered on 31st March, 2014 which is the subject of this appeal is not a good judgment as the trial Judge neither reviewed the cases and the laws cited and relied upon by the parties nor gave reasons for arriving at his conclusions. Furthermore, submitted Learned Appellant’s Counsel, that in cases of declaration of title to land, the Respondent as Claimant, must succeed on the strength of his case and not on the weakness of the defence, relying on:-
1. UKIRI VS. UNITED BANK FOR AFRICA PLC, (2016) 3 NWLR (PART 1500) 410 AT PAGES 416 AND 417 (RATIO 7)
2. SEAMARINE INTERNATIONAL LIMITED VS. AYETORO BAY AGENCY (2016) 4 NWLR (PART 1502) 313 AT PAGES 317 TO 320 (RATIOS 6, 7, 8 AND 9).
On the part of the Respondent, issue 2 is answered in the affirmative.
Learned Respondent’s Counsel referred to page 198 paragraphs 1 – 5 of the Record of Appeal and submitted that the Learned Trial Judge considered, evaluated and appraised the evidence and authorities cited by both parties before arriving at his decision.
In respect to the non-consideration of the legal right of Chief Ogbonna Nwangwa to re-enter the said land in dispute and sell part of it to late Mr. Uche Achirihu Ezikpewho in turn sold it to the Appellant by virtue of Exhibits ?A?, ?D? (which he was a signatory), ‘K’, ‘L’ and ‘M’, Learned Respondent’s Counsel submitted that the Appellant?s position is incorrect and misleading as the Lower Court considered all the issues raised by the Defendant/Appellant before arriving at its decision, referring to pages 199 – 200 of the Record of Appeal for the trial Court?s findings, comments and decisions.
Learned Counsel referred to the case of ISHOLA-WILLIAMS VS. T. A. HAMMOND PROJECT LTD. (1988) 1 NWLR (PT. 71) 481 RATIO 3 and Section 14 (1) of Conveyancing Act 1881 and submitted that in the instant case, there was no notice which was presented to the trial Court either as an attachment or exhibit by Chief Ogbonna Nwangwa but rather the Defendant/Appellant who was a stranger to the transactions in respect of the land in dispute.
Furthermore, Counsel submitted that the Lower Court did justice to the contention and submission of the Defendant/Appellant after considering the legal argument in comparison with the submission of the Respondent. He referred this Court to pages 168 – 169 of the Record of Appeal and the exhibits tendered before the Lower Court and the following cases:-
1. UMOH VS. TITA (1999) 12 N.W.L.R. (PT. 631) 427 AT 429 & 430 RATIOS 3 & 4.
2. OGUNDIANI VS. ARABA AND ANOR (1978) N.S.C.C 334 AT 336 RATIO 5.
3. BRIGGS VS. C.L.O.R.S.N (2005) 12 NWLR (PT. 938) 59 AT 65 RATIO 6.
4. ROMAINE VS. ROMAINE (1992) 4 NWLR (PT. 238) 650 AT 652 RATIOS 2, 3, 4 & 5.
5. OYENEYIN VS. AKINKUGBE (2010) 4 NWLR (PT. 1184) 265 AT 271 & 272 RATIO 2.
6. EJILEMELE VS. OPARA (2003) 5 S.C.N.J.I. RATIO 5.
On the submission of the Appellant’s Counsel in respect of Exhibit ‘D’, Learned Respondent’s Counsel submitted that the Appellant’s Counsel did not point out such non-compliance with the proviso in Exhibit ?D? and therefore the case of BRIGGS VS. C.L.O.R.S.N (Supra) supports the case of the Respondent.
On the Appellant’s submission that Exhibits ‘H’, ‘H1’, ‘H2’ and ‘H3’ were tainted with fraud and forgery which was not considered by the Lower Court. The Respondent’s Counsel submitted that there was never a time in the history of the property in dispute that the issue of non-payment of annual rents arose between the said late Chief Ogbonna Nwangwa and the beneficiaries of the LESSEE’s estate either in writing or orally and that the Defendant/Appellant did not present any document in the Court below to show that such issue existed since the late Chief Ogbonna Nwangwa acknowledged the over payment of annual rent as evidenced in the Claimant’s/Respondent’s reply to the Defendant’s/Appellant’s defence as shown on pages 79 and 80, paragraphs 8, 10 and 23 of the Record of Appeal. It was further submitted that assuming without conceding that the Defendant’s/Appellant’s assertions were correct, these assertions have been answered in the final written address of the Claimant/Respondent on pages 159 and 160 of the Record from paragraphs 7.02 to 7.04, relying on the judgment of the Lower Court and ALAKE VS. THE STATE (1992) 9 N.W.L.R (PART 265) 263 RATIO 4 and EZEONWU VS. ONYECHI (1996) 3 NWLR (PT. 438) 499 AT 508 RATIO II.
On failure to call as witness, or joining as a party Rev. Dr. Godswill M. T. Ogolo who is the head of the family of late Rev. Soe Christian Joseph Ogolo and who acquiesced to the re-entry of the land in dispute by late Chief Ogbonna Nwangwa which was never considered by the Court below, Learned Respondent’s Counsel submitted that the Court below adequately dealt with this issue and held that Rev. Dr. Godswill M. T. Ogolo never acquiesced to the re-entry of the land but rather transferred same as shown in Exhibit ‘K’ and page 200 of the Record of Appeal. Furthermore, that the issue of necessary party was not raised by the Appellant and that the Respondent adequately dealt with same on pages 163 – 164 of the Record. For support, he relied on:-
1. OKOYE VS. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. (1991) 6 NWLR (PT. 199) 501 AT 512 RATIOS 22 & 23.
2. EKPERE VS. AFORIJE (1972) 1 ALL NLR (PT. 1) 220 REFERRED TO AND APPLIED P. 530 PARA 4.
3. OLORIODE VS. OYEBI (1984) 1 SCNLR 390 AT 406.
4. AMUDA VS. AJOBO (1995) 7 NWLR (PT. 406) 170 AT 173 RATIO 6.
Counsel submitted furthermore that it was not the duty of the Claimant/Respondent to call vital witnesses or join necessary parties as co-defendants in the suit but rather it was the duty of the Defendant/Appellant to do so if he considered them vital witnesses or necessary parties.
On the issue of lis pendens as contended by the Appellant in respect to pendency of suits, Learned Respondent’s Counsel submitted that this issue was extensively canvassed by the Respondent and adequately treated by the Lower Court. He referred to pages 151 – 152, 168 – 169 and 199 – 200 of the Record of Appeal and the cases of:-
(i) JAWANDO VS. BAKARE (2006) ALL FWLR (PT. 322) P. 1596 RATIO 8
(ii) WACHUKWU VS. OWUNWANNE (2011) 46 NSCQR (PT. 1) 30 – 31 RATIO 7
(iii) FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) 351 AT 353 RATIOS 7 & 8
(iv) UMOH VS. TITA (SUPRA)
(v) OGUNDIANI VS. ARABA & ANOR (SUPRA)
(vi) BRIGGS VS. C.L.O.R.S.N. (SUPRA)
(vii) ROMAINE VS. ROMAINE (SUPRA) RATIOS 2, 3, 4 & 5
(viii) EJILEMELE VS. OPARA (SUPRA)
It was the final submission of the Learned Respondent’s Counsel on this issue that Mr. Uche Achirihu Ezikpe was aware of the pendency of the Suit No A/459/2002 at the time he sold the property to the Appellant in the year 2006 and therefore the judgment of the Lower Court that generated this Appeal is a good judgment and should not be disturbed by this Court.
ISSUE 3
The Learned Appellant’s Counsel under this issue submitted that the Amended Statement of Claim dated 29th June, 2012 was an abuse of Court process, while the beneficiaries of the estate of late Rev. Soe Christian Joseph Ogolowere guilty of laches and acquiescence since they stood by and allowed Mr. Uche Achirihu Ezikpe and the Appellant to erect a structure on the land in dispute thereby expending a considerable amount of money before filing this suit, and that the Respondent was not a juristic person when the suit was constituted.
Illustrating further, the Appellant noted that the Respondent had filed and served on the Appellant an Amended Statement of Claim dated 16th September, 2010 but filed on 21st September, 2010 and therefore, the subsequent Amended Statement of Claim dated 29th June, 2012 and filed on 4th July, 2012 was an abuse of Court process since the first Amended Statement of Claim was pending till judgment, implying that the Amended Statement of Claim dated 29th June, 2012 and filed on 4th July, 2012 was not before the Lower Court and that every piece of evidence founded on it is null and void and of no effect. Learned Counsel reasoned that when two equities are equal, the first in time prevails, referring to:-
1. AFRICAN CONTINENTAL BANK PLC VS. DEMAIN IKECHUKWU NWAIGWE (2011) 7 NWLR (PART 1246) 380 AT 384 AND 385 (RATIOS 1, 2 AND 3).
2. R-BENKAY NIGERIA LIMITED. VS. CADBURY NIGERIA PLC (2012) 9 NWLR (PART 1306) 596 AT 599 AND 600 (RATIO 2(A) – (H)).
He then submitted that it is a miscarriage of justice for the Lower Court to have neglected to evaluate and appraise the issue of abuse of Court process because once a Court is satisfied that any proceeding before it is an abuse of Court process, it has the power and constitutional backing to terminate same, referring to OSUN STATE INDEPENDENT ELECTORAL COMMISSION VS. NATIONAL CONSCIENCE PARTY (2013) 9 NWLR (PART 1360) 451 AT 455, 456 AND 457 (RATIOS 1, 2 AND 3).
It was further submitted that the beneficiaries of late Rev. Soe Christian Joseph Ogolo were guilty of laches and acquiescence since they stood by and allowed late Mr. Uche Achirihu Ezikpe and the Appellant to raise a structure to completion and occupation to their knowledge without protesting or stopping the project only later to issue Exhibit ‘G’. He referred to case of: –
MOHAMMED VS. MOHAMMED (2012) II NWLR (PART 1310) 1 AT 13 AND 14 (RATIO 13) and pages 137 – 139 of the Record of Appeal.
On the issue of juristic personality of the Respondent, Learned Appellant’s Counsel referred to part 2, Section 3(3) (a) of the Administrator-General Law, Cap. 47, the Laws of Abia State of Nigeria, 2005 and submitted that the reference to the Appellant in the suit as Administrator-General of Abia State simpliciter is a bridge of the said law as the Appellant is a corporation sole by the name ‘the Administrator-General of Abia State of Nigeria.’
Therefore, the Respondent as constituted in the suit before the Lower Court is not a juristic person who could sue and be sued. This is because statutory corporations are to be recognized and known by their names donated by the statutes creating them and should never for any reason be shortened, referring to:-
BAMBE & ORS. VS. ADERINOLA & ORS. (1977) 1 S.C.I. (ALSO REPORTED AT PAGE 93 OF CIVIL PROCEDURE IN NIGERIA BY FIDELIS NWADIALO).
In conclusion, Learned Appellant’s Counsel urged this Court to allow the appeal and set aside the judgment of the Lower Court.
In response to this issue, the Learned Respondent’s Counsel submitted that it did not emanate from the grounds of appeal but that it was raised in the final written address of the Appellant since it was not raised in the statement of defence or Amended Statement of Defence and/or rejoinder at the trial Court. He referred this Court to pages 160 – 162 and 173 – 175 of the Record of Appeal and the case of:-
BABATUNDE VS. P.A.S. & T.A. LTD. (2007) 13 N.W.L.R. (PT. 1050) 113 AT 124 & 125 RATIOS 13, 14 & 15.
Counsel greatly emphasized the point that issue three (3) was not pleaded but was only raised in the written address of the Appellant and urged this Court to discountenance the issue as did the Lower Court referring to
1. C.C.B. VS. ONYEKWELU (1999) 10 N.W.L.R. (PT. 623) 452 AT 455 RATIO 5
2. EZEONWU VS. ONYECHI (1996) 3 NWLR (PT. 438) 499 AT 527
3. OKEBOLA VS. MOLAKE (1975) 12 SC 1 AT 36
4. ORIZU VS. ANYAEGBULAM (1978) 5 SC 1 AT 36
5. ODUMOSU VS. A.C.B. (1976) 11 SC 261
On the issue of laches and acquiescence, Learned Respondent’s Counsel submitted that there was none since the beneficiaries of the deceased Rev. Soe Christian Joseph Ogolo are different from the Claimant/Respondent who only got to know about the sale in 1990 and that the Appellant bought the property when the suit was already pending in the Court. He referred to case of UMOH VS. TITA (SUPRA). On the issue of juristic personality of the Respondent raised by the Appellant, the Learned Respondent’s Counsel submitted that this issue ‘did not form part of the pleadings of Respondent or the Appellant in the Statement of Defence or grounds of his objection raised at the Trial Court? but that it cropped up in the Appellant’s reply on points of law to the Respondent’s final written address at the Trial Court. He referred to pages 62 – 77, 88 – 90 and 191 – 192 of the Record of Appeal.
Counsel further submitted that the trial Court was right in treating this issue as irrelevant and immaterial and that the Administrator-General Law of Abia State relied upon by the Appellant was wrongly applied as it has no bearing with the present case on the ground that the suit was initiated in the year 2002 while the law under reference commenced in 2005. Citing so many authorities, Learned Counsel finally submitted that the Appellant has not been able to establish any lapse in the judgment of the Trial Court and the injustice occasioned by it and concluded that this appeal lacks merit and urged us to dismiss same with substantial cost.
RESOLUTION OF THE ISSUES
ISSUE 1
The starting point in the resolution of this issue is Exhibit ?D?, pleaded in paragraph 4 of the Amended Statement of Claim thus:-
‘The deceased Rev. Soe Christian Joseph Ogolo whose estate is the subject matter of this Suit, under the administration of the Claimant died intestate on 25/12/1976 at Azumini Ukwa East division of Abia State. Prior to his death, he acquired the property in issue in 1974 by virtue of deed of lease dated 21/10/1974 and registered as 62/62/762 of the land deeds Registry office Enugu, now Umuahia in Abia State. The said deed of lease dated 21/10/1974 is hereby pleaded and should be relied upon at the trial.’ (Page 28 of the Record of Appeal).
In paragraph 5 of the Amended Statement of Defence it is pleaded thus:-
‘In response to paragraph 3 of the Claimant?s Statement of Claim, the Defendant avers that CHIEF OGBONNA NWANGWA was the first son of NWAMUO NWANGWA and the beneficiary to the residue or reversion of the Deed of Lease dated 21/1/1974(sic) registered as No. 62 at page 62 in volume 762 of the Lands Registry in the office at Enugu now Umuahia by virtue of Customary inheritance and Devolution of property in accordance with Community of Abia State of Nigeria. The Defendant relies on the said Deed of Lease also.’
The Deed of Lease was tendered through CW1, admitted and marked Exhibit ?D? (page 91 of the Record).
The Claimant in Paragraph 5 of his Reply to the Statement of Defence of the Defendant avers at page 79 of the Record of Appeal as follows:-
‘The claimant in response to paragraph 5 of the statement of defence states that as at the time of the purported transfer of the property of the deceased to Mr. Achirihu Ezikpe (deceased) in 1997 by Dr. G.M. Temesoe Ogolo through Chief Ogbonnaya Nwangwa, the said Chief Ogbonna Nwangwa was not the surviving 1st son of the deceased, and besides the property of Rev. Soe J. Ogolo dated 21/10/1974 and registered 62/62/762 of the lands registry office Enugu now Umuahia did not and has never reversed to any member of Nwamuo Nwanagwa’s family in so far as the family of the deceased Rev. Soe Ogolo has over paid the annual rent of N16.00 for over 99 years. *The annual rent receipts of 1987, 1988, 1991, 1992 and 1993 are hereby pleaded and shall also be relied upon at the trial of this suit, with the deed of Power of Attorney purported to have been donated by Chief Ogbonna Nwangwa (deceased) to Mr. Uche which is before the Court.’
It is clear that the fact that Chief Ogbonna Nwangwa was the first son of Nwamuo Nwangwa is not disputable. In paragraph 5 of the Reply to the Statement of Defence the Claimant only averred that as at the time of the transfer of the property by Dr. G. M. Temesoe Ogolo to Mr. Achirihu Ezikpe in 1997 Chief Ogbonna Nwangwa was not the surviving first son of Nwamuo Nwangwa. This is not a refutation of the fact that as at the time the said Chief Ogbonna Nwangwa re-entered the land in dispute, he was the first son of Nwamuo Nwangwa.
Now, how did Chief Ogbonna Nwangwa come into this matter? The answer is found in the Deed of Lease i.e. Exhibit ‘D’ which in its opening sentence says:-
‘THIS LEASE is made this 21 day of October, 1974 BETWEEN NWAMUO NWANGWA of Ogbor Village Aba (hereinafter called the LESSOR which expression shall where the con so admits include the persons entitled to the reversion immediately expectant upon the term hereby created). The expression ‘Lessor’ includes ?the persons entitled to the reversion immediately expectant upon the term (hereby created).’
Having established that Chief Ogbonna Nwangwa was the first son of Nwamuo Nwangwa, it became clear he was ‘the person’ or ‘one of the persons entitled to the reversion immediately expectant upon the term (hereby created).’
Paragraphs 1 and 2 of the Recital of Exhibit ‘D’ states:-
1. In consideration of the sum of N950 (Nine Hundred and Fifty Naira) now paid by the LESSEE to the LESSOR (the receipt whereof at the execution hereof the LESSOR hereby acknowledges) and the subsequent annual rent of N16 (Sixteen Naira) payable by the LESSEE to the LESSOR every January in each year the LESSOR hereby as BENEFICIAL OWNER demises unto the LESSEE all and singular that certain piece or parcel of land situate at Ehere and measuring 6.017 acres as is more particularly delineated on Plan No. SE/KCA27/72 hereto annexed and thereon verged PINK TO HOLD THE SAME UNTO THE LESSEE from the date hereof for a term of 99 years.
2. THE LESSEE HEREBY COVENANTS WITH THE LESSOR AS FOLLOWS:-
1. To pay the reserved rent at the time and in the manner specified.
2. Not to part with possession of the demised land or any part thereof without the consent of the LESSOR such consent however not to be unreasonably withheld.
It is clear from the above that paragraph 1 of the Recital of Exhibit ‘D’ provides for the payment of N16.00 as a subsequent annual rent after the payment of the sum of N950.00 (Nine Hundred and Fifty Naira) which annual rent was to be payable by the Lessee to the Lessor every January in each year.
In paragraph 2 of the Recital quoted above the Lessee covenanted ‘to pay the reserved rent at the time and in the manner specified, and ‘not to part with possession of the demised land or any part thereof without the consent of the Lessor such consent however not to be unreasonably withheld.’
The Lessee was to enjoy peaceable possession of the demised land provided that:
‘If the rent hereby reserved or any part thereof should be unpaid for 3 consecutive years it shall be lawful for the Lessor or any person acting under his authority to re-enter upon the demised land or any part thereof in the name of the whole and thereupon this demise shall absolutely determine.’
Now, when the Lessee failed or neglected or refused to pay the annual rent the beneficiary of the Lessor Chief Ogbonna Nwangwa, exercised the right of re-entry and took possession of the demised land. The Learned trial Judge had found as facts at Page 198 of the Record of Appeal as follows:-
(a) The land in dispute was originally leased to Rev. Soe Ogolo in (sic) 21/10/1974 for 99 years by Nwamuo Nwangwa.
(b) Ogbonnaya (sic) Nwangwa signed as a witness. That instrument was registered as 62/62/762.
(c) Rev. Soe Ogolo died intestate on 25/12/1976 leaving behind many widows and children.
(d) Chief Ogbonnaya (sic) Nwangwa ? the son of the Lessor sold this land to Chief Achirihu Ezikpe in 1997 who sold to Defendant on 10/02/2003.
From the findings above, it is firmly rooted that Chief Ogbonna (wrongly referred to as ?Ogbonnaya?) was the rightful beneficiary of late Nwamuo Nwangwa to repossess the demised land in the event of any breach.
This leads me to Exhibits ‘H – H3’ which were alleged to be the receipts issued by Chief Ogbonna Nwangwa evidencing payment of the annual rent as provided for in Exhibit ‘D’.
Now, in his Rejoinder to Claimant’s Reply at Page 89 of the Record of Appeal, paragraph 7 the Appellant clearly stated that Exhibits ‘H – H3’ are tainted with forgery and fraud with particulars demonstrating same. This Court having been invited by the Appellant to re-evaluate the evidence tendered before the lower Court, has to look at the Exhibits carefully. I have scrutinized Exhibits ‘H – H3’ and I cannot agree more with the Appellant’s Counsel that there is so much left to be desired. The Exhibits ‘H – H3’ actually are clear demonstration of forgery of the signature of late Chief Ogbonna Nwangwa when compared with his signature on Exhibit ?D?. The disparity is too glaring to be missed. For its essentiality, I shall reproduce the particulars of forgery and fraud as demonstrated by the Appellant before the Court below:-
PARTICULARS OF FORGERY AND FRAUD
(a) The names CHIEF OGBONNA NWANGWA that appeared in four Land Receipts were printed in different fonts and of different characters and spacing.
(b) The first three Land Receipts (as title) were printed with small letters while the last LAND RECEIPT was printed with capital letters.
(c) The address of the first three Land Receipts were written in a straight (single) line while the last Land Receipt has its address in two lines and it is altered.
(d) The last Land Receipt bears the names CHIEF NWANGWA NWANGWA and the first NWANGWA was erased completely and replaced with hand-written ‘Ogbonnaya’ which is radically different from the name OGBONNA.
(e) The proper name is CHIEF OGBONNA NWANGWA and not CHIEF OGBONNAYA NWANGWA.
(f) The purported signatures that appeared in all the Land Receipts are patently irregular and pale imitations from CHIEF OGBONNA NWANGWA’S signature as reflected in the Power of Attorney he donated to MR. UCHE ACCHIRIHU EZIKPE.
(g) At the signature columns in the first three Land Receipts, they were printed with the words ?Lan lord?s sigd? while the last Land Receipt bears only the word ‘Landlord’
(h) All the Land Receipts bear no number and they were forged for the purposes of this Suit.
(i) There is no rational (sic) for REV. SOE C. J. OGOLO to pay N398.00 as Land Rent in 1987 and also pay N398.00 in 1988 and thereafter was paying N394.00 in 1991, 1992 and 1993 respectively in lieu of the agreed N16,00 as annual rent. The above particulars are so vital yet glossed over by the trial Judge.
This is what the Learned trial Judge said in respect of the forgery and fraud:-
By Exhibit H3, being the rent payment receipt, Ogolo family paid rent up until 1993. So, for what default was Chief Nwangwa relying on
Exhibit ‘H3’ is one of the four Exhibits(H, H1, H2 and H3) complained against by the Appellant. It was pleaded that the family of late Rev. Soe Christian Joseph Ogolo did not pay the rent at all. By Exhibit ‘D’ entered into on 21/10/1974 the rents were supposed to be paid in January of every year. That means that payment should have commenced in January of 1975. By Exhibits ‘H – H3’ payment allegedly commenced in 1987 and stopped in 1988, and then commenced in 1991 and stopped in 1993. What happened to the years 1989 and 1990? And what happened to the years 1994 and beyond?
Aside the above, the issue of the Exhibits being forged was completely ignored.
I find and hold the firm view that Exhibits H, H1, H2 and H3 were forged documents, cooked up to cloth the failure to comply with the provisions of the Recital to Exhibit ‘D’ with a garb of authenticity and legality. Consequently, I hold that the late Rev. Soe Joseph Christian Ogolo did not pay the annual rent leading to proper and lawful determination of the Deed of Lease entered into by him which is a fundamental breach of the contractual obligation between the parties. This leads me to Exhibit ‘E’ which is the document purportedly used to surrender the estate of late Rev. Soe Joseph Christian Ogolo to the Respondent by Barr. A. I. C. Ogolo. Exhibit ‘E’ appears clearly to be a general proforma form which can be filled in by any person. For its relevance, I hereby reproduce Exhibit ‘E’ :-
Rev. Alexander I. Christian Ogolo,
No. 10 TENANT ROAD ABA,
ABIA STATE.
The Ag. Administrator-General,
Directorate of Estate and Trust,
Ministry of Justice,
Umuahia,
Abia State.
Sir,
ESTATE OF LATE REV. SOE CHRISTIAN
JOSEPH OGOLO, (DECEASED)
I, Rev. Alexander I. Christian Joseph Ogolo hereby surrender the administration of the Estate of LATE REV. SOE CHRISTIAN JOSEPH (DECEASED) who died intestate on the 25th day of December, 1976 at Azumini to the Ag. Administrator-General, Ministry of Justice, Umuahia. The deceased was my FATHER.
Yours Faithfully,
REV. ALEXANDER I. CHRISTIAN OGOLO
Signature/Thumb-print.
The forgoing having been first read out and interpreted to the illiterate deponent in the Igbo language when he/she seemed perfectly to understand same before affixing his/her thumb-print/signature thereon.
It is to be observed that Rev. Alexander I. Christian Ogolo appended his signature immediately after the words ‘
Yours Faithfully’ and dated same ’19/12/75′
On Exhibit ‘E’ the learned trial Judge has this to say:-
On the 1st issue, Mr. Otisi submitted that Exhibit ‘E’ is invalid and cannot confer any right or interest on Claimant and that the letters of Administration Exhibit ‘F’ based on it is also invalid.
His ground is that Exhibit ‘E’ was not signed by the head of Rev. Soe Ogolo’s family. That Barr. Alex Ogolo had no authority to transfer or surrender the said family land.
Let me say that Exhibit ‘E’ is not what Mr. Otisi describes it to be. That document is not an authority to Barr. Alex Ogolo to surrender any property. Rather it is a letter surrendering the administration of the estate of Rev. Soe Ogolo to the Administrator-General.
This document shows that the surrender of the Estate was on 19/12/1975, whereas Rev. Soe Ogolo died on 25/12/1976.
I have gone this far to reproduce Exhibit ?E? for the purpose of demonstrating that something fundamental has gone amiss. The Estate of Rev. Soe Joseph Christian Ogolo was surrendered to the Administrator-General on 19/12/1975, barely a year after the Deed of Lease was executed and while the late Rev. Soe Joseph Christian Ogolo was still alive, in fact a year before he died. The poser here is, why should Rev. Alexander I. Christian Ogolo surrender his father?s estate to the Administrator-General while his father was still alive? And why should Rev. Alexander I. Christian Ogolo state in Exhibit ?E? that he surrendered the estate of late Rev. Soe Christian Joseph (deceased) who died intestate on the 25th day of December 1976 at Azumini to the Ag. Administrator-General, Ministry of Justice, Umuahia and that the deceased was his father? The learned trial Judge very well observed this when he said:-
This document (Exhibit ‘E’) shows that the surrender of the Estate was on 19/12/1975, whereas Rev. Soe Ogolo died on 25/12/1976.’
In my opinion Exhibit ‘E’ was originated as part of a grand design to foist on the Administrator-General of Abia State a situation the motive of which he hardly comprehended. Accordingly, I hold the firm view that Exhibit ‘E’, not being authentic and genuine cannot surrender the estate of late Rev. Soe Joseph Christian Ogolo to the Administrator-General of Abia State. Afortiori Exhibit ‘F’ taken out based on same has no foundation upon which to stand. The learned Appellant Counsel has forcefully argued that Exhibit ‘E’ is in breach of the known norms of law as it was executed without the knowledge and consent of the head of the Ogolo family.
Yet the learned trial Judge, in overruling him held as follows:-
Let me say that I know of no law which requires only the first son of a deceased to surrender an unrepresented Estate to the Administrator-General
Indeed, dealings with the family land must be carried out with caution. In the case of SOWUNMI VS. AYINDE (2011) 1 NWLR (PT. 1227) 122 at 127 Ratios 5 and 6 it has been held:-
‘The sale of family property without the consent of some of the principal members of the family is voidable while any sale or dealing with the land carried out by principal members of the family without the consent of the head of the family is null and void and again ‘sale of family land by a member of the family without the consent of the head or principal members of the family is void ab initio. The head of family must, under customary law join in conveyance, lease, or disposition of family land and the principal members must consent thereto otherwise such a disposition is void ab initio.’
It may be argued that the authority above cited deals with disposition of family land and not surrender to the Administrator-General, however, the principle of law in my opinion, will equally apply where any dealing with family land is carried out without the consent of the head and principal members of the family.
The learned trial Judge did not demonstrate with any authority where a member of a family not being the head or principal member of the family can surrender an estate in land to the Administrator-General or any other body without the consent of the head or any other principal member of the family.
In view of the above, I resolve issue 1 in favour of the Appellant and against the Respondent.
ISSUE 2
In dealing with issue 1 above, I dwelt such on the evidence before the lower Court especially the Exhibits and so have almost thrashed out the issue of non-evaluation of the evidence by the trial Court. I need only add here that, having held that Chief Ogbonna Nwangwa legally, lawfully and properly re-entered the demised land, he had every right and authority to deal with it as the law and custom of the Ngwa Community would authorize him to do. So the sale of the land to Mr. Ezikpe Uche and the subsequent transfer of same to the Appellant was lawfully carried out. I resolve this issue in favour of the Appellant and against the Respondent.
ISSUE 3
After carefully considering this issue, I find and hold that the Amended Statement of Claim dated 29th June, 2012 is not an abuse of Court process because whenever processes are amended, it does not mean that earlier processes must be withdrawn from the Record of Proceedings. I resolve this issue against the Appellant and in favour of the Respondent. This appeal is meritorious and therefore succeeds. The judgment of the lower Court is hereby set aside. The suit in the Court below is dismissed for being incompetent.
I award cost assessed at N50, 000.00 only in favour of the Appellant and against the Respondent.
Now to the Cross Appeal, I shall treat the two issues together.
I have summarized the issues in the cross appeal at the introductory part of this judgment. The issues are very narrow as they deal with non-granting of reliefs III and V of the Respondent as Claimant at the trial Court.
I hold the candid opinion that having allowed the main appeal wholly, this cross appeal must of necessity fail, for the reasons advanced in the main appeal. Same is accordingly dismissed.
Before I conclude this judgment, I must comment on the role played by Barr. Alex I. C. Ogolo in this matter. Barr. Alex I. C. Ogolo adopted chameleonic postures, changing colours as it satisfies his whims and caprices. He has been Rev Gentleman, Barrister and Counsel to the Respondent and principal member of the Ogolo family.
He engineered the surrendering of the estate of the late Rev. Soe Joseph Christian Ogolo to the Administrator-General of Abia State. He set confusion in the family rather than use his position as Reverend gentleman and barrister to unite and build the large family left behind by his father who, despite being a Rev. Pastor had acquired a harem of wives – 21 in number with 57 children. Barr. A. I. C. Ogolo should have been a witness in this case but because he wanted to, and indeed used his position and profession as a legal practitioner, handled this case personally and refused to make himself available as a witness.
He played the head of the Ogolo family who was Dr. Godswill M. T. Ogolo out of this case. To say the least, Barr. A. I. C. Ogolo played a sordid role which is capable of dividing, and indeed divided his family into pieces rather than uniting them. This ought not to be so. I say no more on this.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, ANDENYANGTSO, JCA. This is to state that I am in agreement with the manner in which the issues considered in the appeal have been resolved and that I have nothing useful to add by way of contribution to the judgment.
Accordingly, I too allow the main appeal and also dismiss the cross-appeal. I make no order as to costs as none was made in the leading judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother IBRAHIM ALI ANDENYANGTSO JCA.
I agree with his reasoning and conclusion.
I also allow the main appeal. The cross-appeal is hereby dismissed.
I abide by the consequential order made as to costs.
Appearances:
A. Otisi, Esq.For Appellant(s)
I. C. Ogolo, Esq.For Respondent(s)
