MRS. CHINYERE ASIKA & ANOR. V. MR. HENRY N. ONYEDIKE
(2012)LCN/5584(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2012
CA/E/205M/2007
RATIO
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS SETTING ASIDE THE DECISION OF THE LOWER COURT
An appellate court look and bases it’s decision on the correctness of the decision of a lower court, and not necessarily at the reason for the decision. Consequently an appellate court will not set aside the decision of a lower court which is right because the fundamental consideration is whether the decision is right and not necessarily whether the reasons are right or wrong.
See N.B.C. PLC VS OLAREWAJU (2007) 5 NWLR (PT 1027) 255: NDAYAKO VS DANTORO (2004) 13 NWLR (PT 889) 189 and U.B.A. LTD VS ACHORU (1990) 6 NWLR (PT 156) 254. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: EFFECT OF EVIDENCE LED ON FACTS NOT PLEADED
As a general Rule, evidence led on facts not pleaded goes to no issue.
See ANYANWU VS IWUCHUKWU (2001) 7 WRN 104: DAGACI DERE VS DAGACI OF EBWA (2006) 7 NWLR (PT 979) 382, and ALAO VS ACB LTD (1998) 3 NWLR (PT 542) 339. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND
Now it is how fully entrenched in on our jurisprudence that there are five ways of proving title to land. These are:-
(a) By Traditional Evidence;
(b) By production of documents of title duly authenticated in the sense that due execution must be proved;
(c) By positive acts of ownership extending over a sufficient length of time;
(d) By acts of long possession and enjoyment of the land.
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
See IDUNDUN VS. OKUMAGBA (1996) 9-10 SC 227: CWO VS ANI (2004) 17 NSCQR 36: ADANYI VS ANWASE (2006) 12 NWLR (PT 993) 183: NKWO VS. IBOE (1998) 7 NWLR (PT 558) 354 AND CHUKWU VS. DIALA (1999) 6 NWLR (PT 608) 674.
It is also settled that a party claming title to land is not bound to plead or prove more than one root of title to succeed. It is enough if he can prove only one of the recognized five ways of establishing a case for title. See EGBO VS. AGBARA (1997) 1 NWLR (PT 481) 293 AND IDUNDUN VS. OKUMAGBA supra. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
WORDS AND PHRASES: MEANING OF ROOT OF TITLE
Root of title simply connotes means or process through which a party came to be the owner of the land in dispute. See OFUME VS NGBEKE (1994) 4 NWLR (PT 341) 746. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
LAND LAW: WHERE WILL AN ORDER OF INJUNCTION RESTRAINING A PARTY FROM FURTHER TRESPASS FLOW FROM
An order of injunction restraining a party from further trespass must of necessity flow from a finding of an act of trespass against him. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. MRS. CHINYERE ASIKA
2. MR. OBODOEHINA ASIKA Appellant(s)
AND
MR. HENRY N. ONYEDIKE Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: This appeal is against the judgment of the High Court of Justice, Onitsha Judicial Division, Anambra State delivered by Hon. Justice D.O.C. Amaechina on the 19th December 2006 in Suit No. O/274/2006 – (Henry Onyedike Vs Chinyere Asika & Anor) wherein the plaintiff’s claim was granted as follows:-
1. A Declaration that the plaintiff is the person entitled to the Statutory Right of Occupancy over Plot ‘C’ V.I.P. Rest-House Layout, Onitsha being the bonafide and Rightful holder and lessee of the said piece or parcel of land known as Plot ‘C’ V.I.P. REST-HOUSE LAYOUT, ONITSHA (Commonly known as and located at Niger Drive, G.R.A., Onitsha) with a Building Lease from the Anambra State Government dated 6th February, 1978 and Registered as No. 4 at page 4 in Volume 1016 of the Lands Registry in the office at Awka.
2. An order commanding or directing the defendants to vacate the said plaintiff s land known as Plot ‘C’ V.I.P. Rest-House Layout, G.R.A., Onitsha forthwith.
3. Perpetual Injunction restraining the defendants by themselves, their agents, servants or privies from further trespass into the said Plot “C’ V.I.P. REST-House Layout, Onitsha.
4. The defendants shall pay costs to the plaintiff assessed and fixed at N20,000, (Twenty Thousand Naira).
The Respondent in this appeal had as plaintiff commenced Suit No. O/27412005 (HENRY N. ONYEDIKE VS MRS CHINYERE ASIKA & ANOR) at the Onitsha Division of the High Court of Justice, Anambra State on the 18th day of June 2005 wherein he sought the following reliefs:
(a) A Declaration that the plaintiff is the person entitled to the Statutory Right of Occupancy being the Bonafide and rightful holder and lessee of the piece and parcel of land known as Plot ‘C’ V.I.P. Layout, Onitsha (commonly known as and located at Niger Drive, G.R.A., Onitsha) with a building lease from the Anambra State Government Registered as No. 4 at page 4 in Volume 1016 of the Lands Registry in the office at Awka.
(b) An Order of the Honourable court commanding the defendant to vacate and remove their said wall/fence from the said plot ‘C’ V.I.P. REST-House Layout, Onitsha forthwith.
(c) N5000,000 damages for trespass.
(d) Perpetual injunction restraining the defendants, their agents servants or privies from further trespass into the said Plot ‘C’ V.I.P. Rest-House Layout, Onitsha”.
Pleadings were subsequently filed and exchanged and with the leave of court, the parties also amended their pleadings. Hearing in the Suit formally commenced on the 16-2-2006 during which the parties testified and also called witnesses in proof of their cases.
A summary of the plaintiff s (now Respondent) case is that he was the allotee of the parcel of land known as PLOT ‘C’ V.I.P. Rest-House Layout, Onitsha, with a Building lease from the Anambra State Government Registered as N0. 4, at page 4 in Volume 1016 of the Land Registry in the office at Enugu now Awka. The said allocation was published in the Anambra State official gazette N0. 23 of 4th August 1977. The Plot ‘C’ was part of Plot ‘R’ which allocation was revoked by the Anambra State Government Vide Edict N0. 5 of 1976 and was subsequently divided into Plots, A, B, C, and ‘D’. Plots A, B, and C were in 1977 allocated to Right Reverend Jonathan Onyemelukwe; Reverend Herbert Oboli and the Respondent respectively while Plot ‘D’ which had an existing building on it was left for Chief Ukpabi Asika the original occupier of Plot ‘R’. The Respondent started the erection of a building on his own Plot ‘C’ and was at the foundation stage when Chief Ukpabi Asika trespassed into the land and commenced erection of a wall fence encompassing both Plot ‘”C” and Plot “D”. All protestations and pleas to Chief Ukpabi Asika and/the 1st defendant to remove the fence did not receive any positive response and after recovering from a protracted illness, he instituted the action.
At the conclusion of hearing, the High Court, of Anambra State, Onitsha Division. Hereafter referred to as the (lower court) gave judgment in favour of the Respondent. The defendants (now the Appellants) being aggrieved by the decision against them filed a Notice of Appeal on 20-12-2006. The said Notice has Six grounds of appeal which shorn of their particulars reads as follows:-
GROUND I- ERROR IN LAW
The learned trial judge surprisingly erred in law and occasioned miscarriage of justice when he did not dismiss or strike out the Suit on the ground that the Respondent’s claim were statute Barred.
GROUND II – ERROR IN LAW
The learned trial Judge surprisingly erred in law and occasioned a gross miscarriage of justice when he failed to hold that the Respondent’s case was caught by the mandatory provisions of Decree N0. 13 of 1984 being an action challenging an act which was done or purported to be done pursuant to Decree N0. 24 of 1993.
GROUND III – ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he failed to hold that the Suit was defeated by reason of non joinder of the Federal Republic of Nigeria.
GROUND IV – ERROR IN LAW
The learned trial judge erred in law when he awarded the Respondent the reliefs sought when the Respondent failed to prove his case.
GROUND V- ERROR IN LAW
The learned trial judge erred in law when in arriving at his decision he took into account matters which were extraneous to the case and failed to take into consideration the matters which were germane to the just determination of the case.
GROUND VI
Judgment is against the weight of evidence.
Briefs of argument were subsequently filed and exchanged in accordance with the Rules of this court.
The appellant’s brief of argument dated and filed on 23-11-2007 was settled by DR. Onyechi Ikpeazu SAN. The Respondent’s brief of argument was dated and filed on 16- 11-2009 but deemed properly filed by order of this court on 11/5/11. It was settled by O.J. Nnadi Esq.
In the appellant’s brief of argument, four issues were formulated for determination as follows:-
1. Was the learned trial judge wrong in holding that the defence that the action was caught by the statute of limitation did not avail the appellants having regard to the totality of the case of the Respondent. (Ground I).
2. Was the learned trial judge wrong in holding that the mandatory provisions of Decree No. 1 and 13 of 1984 did not apply to oust the jurisdiction of the court to entertain the Respondent’s claim. (Ground 2).
3. Was the learned trial judge wrong in holding that based on the totality of the case before the court the Government of the Federal Republic of Nigeria was not a party necessary for the just and effectual determination of the Respondent’s claims. (Ground 3).
4. Was the learned trial judge wrong when based on the state of pleadings and admissible evidence led, he held that the Respondent established entitlement to the declaratory and injunctive reliefs claimed. (Grounds 4 and 5).
For the Respondent, four issues were also distilled for determination from the grounds of appeal as follows:-
1. Whether considering the circumstances of this suit, this action can be said to be statute barred?
2. Whether the learned trial judge was right when he held that since the respondent neither challenged a Decree or anything done under a Decree, that Decree Nos 1 and 13 of 1984 cannot and does not apply to oust the jurisdiction of the court below?
3. Whether the Federal Government of Nigeria is a necessary party in this proceedings?
4. Whether or not the learned trial judge was right in holding that the Respondent has proved his case on the balance of probability entitling him to be deemed holder of the Statutory Right of Occupancy over the said plot ‘C’.
Though couched in different grammatical presentation, the 4 issues as raised by the parties are on all fours but I am minded to consider this appeal on the Respondent’s four issues.
On issue 1. That is whether considering the circumstances of this Suit, this action can be said to be statuted barred. The learned Senior counsel for the appellants after a review of some of the paragraphs of the parties pleadings contended that the Respondent did not file a reply to the statement of defence to deny the averment that he failed to file this action within the statutorily allowed period after the land was restored to Ukpabi Asika in March 1993. He added that it is also for the respondent to specifically supply the evidence of the duration of his incapacity and when it ended, and not for the learned trial judge to conjecture and set up a case for the respondent. Learned Senior counsel reviewed the evidence of the Respondent and the PW2 as well as the DW2 to contend that the conclusion of the learned trial judge that the evidence of PW2 that the alleged trespass took place between 1979 and 1981 should be disregarded was perverse as much as his finding also that the trespass could not have occurred before 1993 but between 1994 and 1995. He urged this court to accept as established, the fact based on the evidence called by the Respondent, that his claim arose between 1979 and 1981 while this Suit was filed on 19-5-2005 which is about 24 to 26 years from the period of the alleged trespass; or in the absence of evidence of trespass, to accept the date on Exhibit E being 5-3-1993 as the date the cause of action arose.
Learned Senior counsel further referred to Section 64, Tort Law Cap 140, Vol. 9 Laws of Anambra State 1991 and Section 22(2) of the Actions Law CAP 3,Law of Anambra State 1991 (Reprint) to submit that both laws provide for a period of 6 years and 12 years time limitation within which an aggrieved party can sue for trespass to land or recovery of land respectively but by virtue of Exhibit E which came effect from 5-3-1993 the respondent’s cause of action arose on that date when the land taken away from Chief Ukpabi Asika was returned to him.
He relied on the authorities of WOHEREM VS EMERUWA (2004) 13 NWLR (PT 890) 398 at 415 and EBOIGBE VS NNPC (1994) 5 NWLR (PT 347) 649 at 666.
Learned Senior counsel also referred to Section 3 8 (i) of the Actions Law to contend that for the section to apply in this case, there must be disability on the date the cause of action arose and it is for the person who alleges disability to prove how he was disabled and when the disability ceased.
Dwelling on the same issue, learned counsel for the Respondent referred to WOHEREM VS EMERUWA (2004) ALL FWLR (PT 221) 1570 at 1581 to 1582 to submit that there is no legal duty on a plaintiff to file a counter affidavit, or reply to statement of defence to further contradict or deny the date on which the defendants allege that the cause of action arose. This is because where issues have been joined in the pleadings of the parties, the established rules of pleadings does not require a reply from the plaintiff.
He referred to the Respondent’s averments in paragraphs 7 – 11 of the amended Statement of Claim and that of the appellants in paragraphs 8 (ii) and 8 (iii) of their Amended Statement of defence to contend that by the aforesaid averments, issues where joined by the parties as to whether the action was statute barred, in which case the onus rests on the appellants who claimed that the action was statute barred to prove by credible evidence that it is so. He cited AMODU VS AJIBOYE (2001) FWLR (PT 46) 852 at 856 and ODUBEKO VS FOWLER (1993) 7 NWLR (P 308) 637 at 660.
He argued further that though the appellants averred in paragraph 8(ii) of the amended Statement of defence that the cause of action accrued to the Respondent on 5-3-93 when Exhibit E was issued but they did not give credible evidence as to the date they reentered the land after the issuance of Exhibit ‘E’.
Learned counsel also referred to evidence of DW1 and DW2 to submit that the appellants did not discharge the onus placed on them to prove by credible evidence, the date the cause of action occurred and that the learned trial judge was correct in his view that the evidence received from both sides as to the date the cause of action arose is speculative and not credible at all.
He further referred to Section 38 (i) of the Actions Law of Anambra State to argue that it avails the Respondent who has pleaded in paragraphs 8 and 9 of the amended Statement of Claim that after he got wind of the trespass, he was incapacitated due to failing health which led to the loss of one of his eyes and his eventual travel abroad for special medical attention. Learned counsel referred to the evidence of the Respondent at page 68 of record to contend that he proved his disability during the period and warrants the application of Section 38(1) of the Actions Law by the learned trial judge who is empowered to do so by Section 73 and 74(1) of the Evidence Act as a judge is entitled to take judicial notice of a legislation relevant to an issue in controversy before it.
It is an established principle of law that a legal right to institute an action is not a perpetual right, but it is rather limited by statute. It follows then that a cause of action is statute barred in a situation where legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. See OGUNKO VS SHELLE (2004) 6 NWLR (PT 868) 17: ADEOSUN VS JIBESIN (2001) 14 WRN 106: and OSUN STATE GOVERNMENT VS DALAMI NIGERIA LTD (2007) ALL FWLR (PT 365) 438.
In determining whether an action is statute barred a court is expected to examine the writ of Summons and the Statement of Claim filed by the plaintiff. This normally will disclose when the cause of action arose and then compare it with the date when the action was filed in the court. Where the date of filing of the action as endorsed on the writ of Summons is beyond the period allowed by the relevant limitation law then the action is said to be statute barred. Where on the other hand, the action was filed within the time prescribed by the limitation law, then it is not statute barred. See HASSAN VS ALIYU (2010) 17 NWLR (PT 1223) 547: OGUNKO VS SHELLE supra and ELABANIO VS DAWODU (2006) 15 NWLR (PT 1001) 76.
In the instant case, a perusal of the writ of Summons show that it was endorsed as having been filed on the 19th day of May 2005. In other words the Respondent as plaintiff instituted the action on 19th May 2005. The relevant paragraphs of his amended Statement of Claim filed on 14/3/2006 and relates to when the cause of action arose arc paragraphs 5 to 12 and reads as follows:-
1. The said plot “C” V.I.P. Rest House Layout Onitsha was allocated to the plaintiff in July 1977 and published in the Anambra Gazette N0. 23 Vol.2 of 4th August 1977 by the said Anambra State Government. A certified true copy of the page 296 of the said Gazette is hereto pleaded and shall be founded upon at the trial.
2. The plaintiff was later, after the said publication issued with the said Building lease in 1978 by the same old Anambra state Government also hereby pleaded.
3. The said plot “C” V.I.P. Rest House Layout, Onitsha was originally part of plot “R” V.I.P. Rest House Layout, Onitsha now since 1976 defunct (sic) which said plot “R” was Originally owned by Chief Ukpabi Asika which was among his numerous plots of land revoked by the Old Anambra State via the Edict No. 5 of 1976 titled “ANAMBRA STATE REVOCATION OF STATE LANDS ALLOCATION EDICT 1976”. A certified true copy of the said edict/law is hereby pleaded and shall be founded upon at the trial.
4. The defendants later trespassed into the plaintiff’s plot “C” by fencing it together with their plot “D” in which the plaintiff had already commenced erecting a building which was still at the foundation level.
5. The plaintiff later got wind of the trespass but was incapacitated because of his falling health, which needed urgent attention.
6. The plaintiff nevertheless protested the said trespass but because of the bad state of his health, he later traveled overseas for expert attention on his said falling (sic) health.
7. Nevertheless the family of the plaintiff kept on pleading with the defendants to vacate the said plot “C” without success which plea continued until last year, 2004.
8. The plaintiff eventually recovered from the said illness after a long time and after recuperation came back and renewed the plea with more vigour without success.
9. In one occasion, the 1st defendant purportedly advised the wife of the plaintiff who went to beg her to plead with her husband, late Ukpabi Asika, to forget the said plot “C” V.I.P. Rest House Layout, Onitsha but instead to ask the plaintiff to apply to the Anambra State Government for another allocation of another piece of land at G.R.A. Onitsha and she would use her family connections to influence the Anambra State Government on that.
The appellants in their own amended Statement of defence filed on 15-3-2006 responded in paragraph 8 (i-v) as follows:-
8.1. Defendants deny paragraphs 7, 8, 9, 10, 11, 12 and 13 of the Statement of Claim and put the plaintiff to the strictest proof thereof. In further answer thereto, Defendants aver as follows:-
(i) Defendants did not and could not have trespassed on the plaintiff s land as late Chief Ukpabi Asika at all times had been in possession of the land without let or hindrance from anybody especially the plaintiff.
(ii) The entire story of incapacitation put up by the plaintiff is an unfortunate falsehood to conceal the fact that the plaintiff was fully cognizant of the fact that the title over the land was restored to the late Chief Ukpabi Asika since 5th March, 1993 but failed to file this action within the statutorily allowed period.
(iii) The Defendants shall contend that this action is statute barred and shall urge this court to dismiss or strike out the suit on this score alone.
(iv) 1st Defendant did not discuss the issue relating to the land of late Chief Ukpabi Asika situate at Plot R. G.R.A, Onitsha with the plaintiff or his wife as alleged or at all as the Defendants do not even know them. 1st Defendant has no influence of any kind on the Government of Anambra State or of the Federation and did not and could not have advised the plaintiff s wife who she does not know, as alleged or at all.
(v) Plaintiff, who is rather adventurous and preferred to fish in troubled water, is the person who has tried to trespass on the land of late Chief Ukpabi Asika over which he was not qualified to own by any sane application of the law and rules governing the allocation of land.
I have read over and over again, the amended Statement of claim and found that there is nothing therein to show when the act of trespass that gave rise to the cause of action took place. In other words, there is no date disclosed as to when the cause of action arose as to enable this court compute the time span between such occurrence and when the writ was filed in the lower court and make out whether it is within the time permitted by the relevant statute – which is the Actions Laws of Anambra State CAP 3 Revised Laws of Anambra State 1991.
The appellants in their amended Statement of defence had raised the issue of the action being statute barred without specific reference to how the time was computed in bringing it outside the limitation period. Rather reliance was placed on the forfeiture of Assets (Release of certain forfeited properties etc) Decree No. 24 of 1993 wherein the Federal Government of Nigeria released the property in dispute to Chief Ukpabi Asika. For them, the cause of action arose on the 5-3-1993 when the Decree was enacted which gives a period of more than 12 years allowed by the Actions Law.
The learned trial judge was also aware of this lack of information in the parties pleadings relating to when the cause of action arose. Hence in his judgment at page 128 of the record he made the following findings:-
“In the case at hand, the defendants could not raise a preliminary objection because the pleading of the plaintiff is silent or vague or obscure as to the date the plaintiff s cause of action arose. That was why the defendants could not have raised earlier the objection about limitation of action by way of preliminary objection which objection they have just raised in their final address.
The implication of the defendants’ pleading of limitation of action in paragraph 8 of their amended Statement of defence is that what emerged at the close of pleadings was a triable issue on the question of the date the cause of action in respect of title to the property in dispute and the trespass complained of by the plaintiff arose. In that case, such an issue became an issue for determination which must be proved by the parties in the course of the hearing of the Suit by credible evidence to be determined by the court. See WOHEREM (J.P) VS EMEREUWA supra).
The evidence I have received from both sides as to the date on which the cause of action arose is speculative and not credible at all. The plaintiff himself (ie PW1) did not give evidence as to the date on which the cause of action arose and he was not cross examined at all on that point or issue”.
From the records, the learned trial judge cannot be more correct on the state of affairs relating to whether the action is statute barred or not.
On that basis, he proceeded to evaluate the evidence of the parties and on his own assessment concluded that the action is not statute barred.
Now it is trite that in determining whether an action is statute barred recourse must be had to the writ of Summons and the Statement of claim.
Trite it is also that a party raising the issue of an action being brought outside the relevant limitation law must also of necessity bring to the attention of the court the facts showing that such action is statute barred. In the instant case, the Respondent having omitted to plead the facts as to the specific time period when the cause of action arose, the appellants on their own as per paragraph 8(ii) of the amended statement of defence relied on the forfeiture of Assets (Release of certain forfeited properties etc) Decree N0. 24 of 1993 to contend that since Plot R was released to Chief Ukpabi Asika by virtue of the said Decree made on 5-3-1993 it follows that the Respondent’s cause of Action arose from the said 5-3-1993 and having brought the action in 2005, it became statute barred having exceeded the 12 years time limit prescribed by the Actions Law of Anambra State.
The question that begs for answer is whether the mere enactment of the said Decree N0. 24 of 5th March 1993 will automatically ignite a cause of action from the said date without any proof of physical move on the part of the appellants to repossess the earlier forfeited property. The answer, to my mind is in the negative. It is not in dispute that by virtue of the Public Officers (forfeiture of Assets) Order 1997, the late Chief Ukpabi Asika forfeited his properties including Plot R to the Anambra State Government. It is also not in dispute that consequent upon the aforesaid, the property in Plot R hitherto belonging and occupied by the late Chief Ukpabi Asika was taken over and used as guest House by the government of Anambra State. This fact is very glaring in the evidence of DW2 ie (1st Appellant) at page 97 – 98 of the record.
It therefore behoves the appellants to adduce evidence of facts as to the time and circumstance when they re-entered into the property and repossessed it. That physical act of reentering to my mind will be the only exercise that can ignite a possible cause of action and not the mere fact of a Decree having included Plot R as one of the properties released to the appellants. It follows therefore that this case lacks the necessary and relevant facts to ascertain when the cause of action arose for the purpose of determining whether it is statute barred or not. The learned trial Judge was therefore on firm grounds when held at page 131 of the record that:-
“In the final result, the objection that this Suit is statute barred fails not only because there was no credible evidence as to the date on which the cause of action arose but because there was also no credible evidence that an act of trespass which is the basis of the objection ever took place in this matter before 2004 when Chief Asika passed on”.
He however veered off the mark by holding further that:-
”Since the cause of action appears to have arisen in 2004 or thereabout and Section 64 of the Torts law and Section 22(2) of the Actions Law of Anambra State prescribe the limitation periods of 6 (Six) and 12 (twelve) years for trespass and claim for recovery of land respectively, this Suit which ever way one looks at it is definitely not statute barred”.
The above stance no doubt creates the impression of one blowing hot and cold or a case of approbating and reprobating. Having found that there was no credible evidence as to the date which the cause of action arose. It suffices not to embark on a voyage of speculation on the likely date when a cause of action might have arisen. Nonetheless, having reached a correct decision, this court will not alter it merely because it was arrived at through a wrong reasoning.
An appellate court look and bases it’s decision on the correctness of the decision of a lower court, and not necessarily at the reason for the decision. Consequently an appellate court will not set aside the decision of a lower court which is right because the fundamental consideration is whether the decision is right and not necessarily whether the reasons are right or wrong.
See N.B.C. PLC VS OLAREWAJU (2007) 5 NWLR (PT 1027) 255: NDAYAKO VS DANTORO (2004) 13 NWLR (PT 889) 189 and U.B.A. LTD VS ACHORU (1990) 6 NWLR (PT 156) 254.
Learned Senior counsel for the appellants had equally in strong terms attacked the finding of the lower court that the evidence of PW2 was not reliable and credible where she stated that the alleged trespass occurred between 1979 and 1981. I however cannot, but agree with the submission of learned counsel for the Respondent to the effect that such evidence though given during cross examination is not only speculative and lacks certainty but goes to no issue because it was nowhere pleaded by any of the parties either expressly or by inference.
As a general Rule, evidence led on facts not pleaded goes to no issue.
See ANYANWU VS IWUCHUKWU (2001) 7 WRN 104: DAGACI DERE VS DAGACI OF EBWA (2006) 7 NWLR (PT 979) 382, and ALAO VS ACB LTD (1998) 3 NWLR (PT 542) 339.
In the result I am in agreement with the learned trial judge that facts and circumstance to show that the action is statute bared are totally lacking. Issue No 1 is therefore resolved in favour of the respondent.
ISSUE NO 2.
Dwelling on this issue, learned Senior counsel for the appellant cited a number of authorities to submit that though it is the Statement of claim that determines the jurisdiction of the court, but that where a defendant raises in his pleadings such facts as to show that the subject matter of the case is not within the jurisdiction of the court. It becomes a triable issue which the court must look into. He further cited in support the following cases. A.G. KWARA STATE VS OLAWALE (1993) NSCC (PT 1) 110 at 119 or (1993) 1 NWLR (PT 272) 645 at 663; I.K. MARTINS (NIG) LTD VS U.P.L. (1992) 1 NWLR (PT 217) 322 AT 333; WESTERN STEEL WORKS LTD VS IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (PT49) 284 at 305; TIDEX (NIG) LTD VS NUPENG (1998) 11 NWLR (PT 553) 263 at 276 and ENEMUO VS DURU (2004) 9 NWLR (PT 877) 75 at 107.
He referred to the averment in paragraph (6a) of the amended statement of claim and the respondent’s evidence as it relates to Exhibit E. to contend that the Respondent’s claim is nothing other than that, inspite of Exhibit E, the court should declare him the person entitled to the right of occupancy over the land, as against the Appellants whose statutory right of occupancy had been restored by virtue of Exhibit E.
Learned counsel further submitted that exhibit E being a Decree of the Federal Government, is an existing law which restored the appellants right over plot R. A right earlier revoked by Exhibit D, another federal law, therefore, he argued, for the Respondent to claim entitlement to the same land is nothing other than calling into question an act done pursuant to a Decree of the federal government. He added that the Decree titled, public officers (forfeiture of Assets) Order 1977 and signed on 7th March 1977 had it’s commencement date as 3rd February 1976 pursuant to Decree No 10 1976 and as such preceded the Anambra State Revocation of States Lands Allocation Edict No 5 of 1976 (Exhibit C).
Learned Senior counsel further contended that based on the aforementioned laws, the trial court had no jurisdiction to hear this case by virtue of Section 4(a)(b)(i) and (ii) of the Decree No 1 of 1984 and Decree No 13 of 1984 which made all the law made by the federal government supreme and unchallengeable – and thus ousts the jurisdiction of the courts.
Responding on the said issue, learned counsel for the Respondent referred to Section 1(2)(b)(i) of Decree No. 13 of 1984 and Section 5 of Decree No 1 of 1984 to submit that both Decrees were meant to prevent members of the public from challenging the competence of the Federal Military Government or the Military Administration of a state to make any legislation and any Act, matter or thing done or purported to be done under or pursuant to any Decree or Edict. He referred to NIGERIAN ENGINEERING WORKS LTD VS DENAP LTD (2002) FWLR (PT 89) 1062 at 1104 and A-G BENDEL STATE VS AGBOFODOR (1999) 2 NWLR (PT 592) 476 to submit that in construing Statutes/Decrees ousting the jurisdiction of the courts, the ordinary meaning of the provisions of the statute must be applied as long as such provisions are clear, plain unambiguous and unequivocal.
Learned counsel further argued that it is the plaintiff s case that determines the jurisdiction of the court, though in some cases the Statement of defence may be considered but in the instant case, Decrees No 1 and 13 of 1984 could not be said to have ousted the jurisdiction of the lower court as they are not applicable to the case which is purely an action for declaration that the Respondent is the person entitled to the Statutory Right of Occupancy being bonafide and rightful holder and lessee of Plot C. V.I.P. Rest-House Layout, Onitsha. He added that Exhibit E is deemed to be a law or an instrument made by the Anambra State legislature and the land in dispute was a state land under the State Lands Law CAP. 137 of 1976, Revised Laws of Anambra State 1991, wherein the State not Federal Government has power to lease, revoke, and re-allocate State Land.
Learned counsel finally submitted that the Respondent did not in any way challenge the provisions of Decree No 24 of 1993 and Decree Nos 1 and 13 of 1984 cannot apply to oust the jurisdiction of the court to adjudicate on the claims of the Respondent which is basically governed by the provisions of the Land Use Act.
Now, the case of the respondent is that Plot “R”. V.I.P. Rest-House Layout, Onitsha, hitherto occupied by Late Chief Ukpabi Asika was revoked by the old Anambra State Government in 1976 pursuant to (Exhibit C) the Anambra State (Revocation of State Lands Allocation) Edict N0 5 of 1976. the said Plot R was subsequently divided into four Plots. (A B C & D). Plots A, B and C were in 1977 allocated to Rt. Reverend Jonathan Onyemelukwe, Reverend Herbert Oboli and Mr. Henry Onyedike (The Respondent) respectively as per the Anambra State Official Gazette N0 23, Vol. 2 of 4th August 1977. (Exhibit D). Plot D. which already had a building erected on it was left for Chief Ukpabi Asika. The Plot C. Allocated to the Respondent was backed up by Exhibit ‘A’. a building lease dated 6th February 1978 and made between the Anambra State Government and the Respondent and Registered as No 4 at page 4, Volume 1016 of the Lands Registry Enugu. (Now Awka). Subsequently the Respondent commenced erection of a building on the said plot ‘C’ and while still at foundation level, the Appellants trespassed into the land and put up a wall fence encompassing both Plot C and their own Plot D. V.I.P. Rest-House Layout, Onitsha. In other words he is relying on Exhibits A, B and C to claim for declaration of title and trespass and injunction against the appellants.
The big question that begs for answer, is whether in the circumstance, the Respondent is in anyway challenging the provisions of Exhibit E. which restored Plot R to Chief Ukpabi Asika.
In my humble view, the action of the respondent has nothing to do at all with the authenticity or efficacy of Exhibit E. (Forfeiture of Assets (Release of certain forfeited properties, etc) Decree of 5th March 1993. It provided in Section 1 as follows:-
1.”As from the commencement of this Decree all the properties specified in the second column of the schedule to this Decree, being properties forfeited to the Federal Government and some State Governments under the Public Officers (forfeiture of Assets) Order 1977 and the Public Officers (forfeiture of Assets) order of 1978 are hereby released to the persons named in the first column to the schedule to this Decree”.
The aforesaid Decree was enacted for the purpose of releasing to certain public officers including (Chief Ukpabi Asika), properties hitherto owned by them but forfeited to the Federal or State Government as the case may be under the Public Officers (forfeiture of Assets) Orders 1977 and 1978. A number of properties belonging to Chief Ukpabi Asika was forfeited to the Government of Anambra State by virtue of the 1977 Order. The contentious Plot ‘R’ was among those forfeited but subsequently released to Chief Ukpabi Asika in 1993 pursuant to Exhibit E.
Meanwhile in 1976, the Anambra State Revocation of State Land Allocation Edict 1976 was enacted by the then military Governor of Anambra State wherein numerous plots of Land allocated to people including Plot ‘R’ was Revoked. The Edict was deemed to have come into effect on the 10th day of March 1976. The aforesaid Plot was then divided into four plots (A B C & D) plot D which has a building on it already was left for Chief Ukpabi Asika while Plot A, B & C were allocated to other individuals including the Respondent who got Plot ‘C’. In which case as at 10th March 1976, Plot ‘R’ has ceased to exist and has given way to Plot A, B – C & D.
To my humble mind, it follows naturally that as at the time of the promulgation of the public officers (forfeiture of Assets) Order on the 7th March 1977, Plot ‘R’ which was forfeited to the Anambra State Government had ceased to exist, having been revoked by the duly constituted authority of the state government and had given way to plots A, B, C & D, and this was alluded to in the evidence of the 1st appellant under cross examination. I, stand firmly on this notwithstanding the fact that the said Order was deemed to commence on 3rd February 1976 because it has nothing to do with the proprietary right over Plot ‘R’ vis-a-vis the power of revocation exercised by the Anambra State Government.
What I have tried to establish by all this exhaustive details is that though Exhibit ‘E’ enacted in 1993 released the properties of Chief Ukpabi Asika earlier forfeited to the Anambra State Government, wherein it mention Plot “R”, as amongst them, I need state that Plot ‘R’ having ceased to exist as at 1977 when it was deemed forfeited, there was therefore no Plot ‘R’ to release to Chief Ukpabi Asika in 1993 but Plot ‘D’.
This settled state of affairs found expression in the fact that the Appellants never challenged the action of the Anambra State Government in revoking, dividing and re-allocation of the said plot ‘R’ but rather settled down in their own plot ‘D’ which incidentally was taken over and occupied by the State Government until its return to the appellants pursuant to Exhibit “E”. The Allottees of Plots A and B have continued undisturbed on their own portion of the land while the Respondent whose Plot ‘C’ was encroached upon have now sought a relief to recover same from the appellants. I need add here that the Respondent is not challenging the existence or efficacy of Exhibit ‘E’ but his right over Plot C. which is being threatened. The issue of ouster of the jurisdiction of the lower court to intervene in any matter relating to Decrees No 1 and 13 of 1984 or Exhibit ‘E’ does not therefore arise. Issue No 2 therefore is resolved against the appellants.
ISSUE NO 3
That is, whether the Federal Government of Nigeria is a necessary party in this proceeding?
Herein, learned Senior counsel for the appellants submitted inter alia, that the purpose of making a person a party in the proceeding is so that he may be heard where his rights are involved and then bound by the out come of the Suit. It will thus be a denial of fair hearing for a decision to be taken over a person without his being given due notice of the proceeding and opportunity to be heard. He referred to the cases of KALLAMUS VS GURIN (2003) 16 NWLR (PT 847) 493 and GREEN VS GREEN (1987) 3 NWLR (PT 61) 480.
Learned Senior counsel after a brief review of the facts of this case contended that the act of forfeiture and subsequent release of Plot ‘R’ to Chief Ukpabi Asika were actions taken by the federal government whether rightly or wrongly. Therefore, he argued, the respondent cannot proceed in the action as if the federal government which gave the appellants the right to remain on the land which formed the basis for the respondent’s action never existed because that will amount to breach of right of fair hearing.
For the Respondent, it was contended that the Federal Government of Nigeria is not a necessary party to the Suit because the cause of action therein is a contest between the Respondent and the appellant as to who between them has a better title to the land in dispute. In other words, the Respondent has no complaint against the Federal Government of Nigeria in his claim in the court below.
Learned counsel further referred to a number of authorities on the principles that guide the court in determining whether or not to join a party in a suit.
He also argued that the federal government has no direct or legal interest in the proceedings because any answer to the question as to who between the parties has a better title to the land in dispute cannot curtail the legal right of the Federal Government.
Now, a necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause of action on matter. See ANABARONYE VS NWAKAIHE (1997) 46 LRCN 185: UKU VS OKUMAGBA (1974) 3 S.C. 35: B.O.N. LTD VS SALEH (1999) 9 NWLR (PT 618) 331 and GREEN VS GREEN (1989) 3 NWLR (PT 61) 480.
Clearly put, a necessary party to a Suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his being joined as party to a Suit, the court may not be able to effectually and completely adjudicate upon and settle all questions involved in the Suit. See BIYU VS IBRAHIM (2006) 8 NWLR (PT 981) 1 and OJO VS OGBE (2007) 9 NWLR (PT 1040) 542.
The bedrock of the appellants’ contention that the federal government ought to be joined as a necessary party to the Suit is Exhibit ‘E’ which gave the appellants the right to remain on the land that formed the basis of the respondents action. The said Exhibit ‘E’ is the forfeiture of Assets (Release of certain forfeited properties etc) Decree N0 24 of 1993. Pursuant thereto, properties of certain public officers (including Chief Ukpabi Asika) earlier forfeited to the Federal and State Governments (as the case may be) were ordered to be released to the affected public officers. Simply put, the Federal Military Government under the Public Officers (forfeiture of Assets) Order 1977 commanded that public officers whose names are listed therein shall forfeit their properties to the Federal Government or State Government as applicable. Plot ‘R’ was listed among those to be forfeited by the late Chief Ukpabi Asika to the then East Central State Government. This the appellants readily agreed to in their pleadings and the evidence of DW2). Many years later, the forfeited properties were released to the affected public officers. The said act of forfeiture and subsequent release was carried out without recourse to the origin or nature of title of the properties as held by the affected officers including Chief Ukpabi Asika. What was seized whether genuinely acquired or not was also returned back to them. The said Plot ‘R’ was never at anytime the property of the Federal Government, so it has no interest whatsoever in it. This is clearly shown in Section 1 of the Public Officers (forfeiture of Assets) Order 1977 which reads thus:-
1. The properties set out in the second column of the schedule to this Order being assets of the persons named in the first column of that schedule and hereby forfeited to, and shall vest in, the respective Governments or other authorities specified in the third column of that schedule free of all encumbrances and without any further assurance apart from this order”.
The 3rd column of the schedule of the Order show that all the properties forfeited by late Chief Ukpabi Asika including Plot ‘R’ vested in the Government of the defunct East Central State and not the Federal Government. Exhibit ‘E’ only ordered the release of the forfeited properties to the former owners which in this case led to the return of the properties to Ukpabi Asika by the State Government which had hitherto assumed ownership and title and not the Federal Government. I am therefore in total agreement with the submission of the Respondent counsel that the Federal Government is not a necessary party in this Suit and has no business being made one at all as it has nothing to gain or lose in the whole transaction. I therefore resolve this issue against the appellants.
ISSUE NO 4
Learned Senior counsel made copious reference to the judgment of the lower court to submit that the learned trial judge ignored the elementary principle of interpretation to the effect that a law take effect from it’s commencement date. He added that the commencement date for Exhibit ‘D’ which declared Plot ‘R’ forfeited is 3rd February 1976 and not March 1977 as was erroneously held by the trial judge, in which case by the doctrine of “covering the field”, the state had nothing to revoke as it did in Exhibit ‘C’.
He further referred to Section 2 and 4 of the Constitution (Suspension and Modification) Decree No 1 of 1984 to say that it circumscribed the power of a state to make laws in which case Exhibit ‘C’ which was made by the state is void to the extent of it’s inconsistency with Exhibit ‘D’ and ‘E’ made by the federal government. It was learned Senior counsels further contention that Exhibit ‘E’ predates Exhibit ‘C’ which accordingly had nothing to revoke as the right of the state government over Plot ‘R’ from which Plot ‘C’ was carved out was extinguished and vested in the appellants.
Learned Senior counsel also submitted that by Section 1 of Exhibit ‘E’ , what was return was all properties forfeited to the federal and some state governments and no portion was excised from what was declared forfeited so it was wrong for the learned trial judge to hold that what Exhibit E returned was only Plot ‘D’ out of the Plots carved out of Plot ‘R’.
He added that by virtue of the supremacy of (Decree No 1), of 1984, the effect of the Land Use Act as to who was in possession of the land as at 1978, being inconsistent with Exhibit E, the Land Use Act to the extent of the inconsistency becomes void.
On the claim for trespass, learned Senior counsel submitted that the finding of the learned trial judge that the Respondent established the case of trespass based on admission by the appellants that they maintain a garden on the land in dispute amounts to a total disregard of the case before him. This is because what the Respondent pleaded was that his Plot ‘C’ was fenced in and the act of fencing not garden (which was even not pleaded) that constituted the trespass for which the Respondent claimed damages and injunction. He urged this court to disregard the issue of garden which was neither pleaded nor given in evidence and in the absence of any finding on the issue of wall fence, the claim of the respondent for trespass and the learned trial judges Orders 2 and 3 must fail.
Learned counsel for the Respondent on the other hand submitted that the land in dispute is a state land by virtue of the State Lands Law of 1976 now CAP. 137, Revised Laws of Anambra State 1991. He added that Exhibit D is an existing law by virtue of Section 274(4) (b) of the 1979 Constitution as conceded by the Appellants and besides, it cannot qualify as an act made by the National Assembly because matters relating to allocation, revocation an re-allocation of land in a state territory is not in the Exclusive or concurrent list. He cited A-G FEDERATION VS A-G ABIA STATE (2002) FWLR (PT 102) 1.
Learned counsel further contended that Exhibits ‘C’ and ‘D’ are by virtue of Section 274(1)(a) and (b) of the 1979 Constitution, existing laws deemed to have been made by the Anambra State House of Assembly and both instruments revoked Plot ‘R’ formerly granted to late Chief Ukpabi Asika which Plot was subsequently subdivided into four Plots (A B C and D) and allocated to different people including the Respondent while Plot D was left for the Appellants.
He further submitted that the learned trial judge was right to hold that since the Anambra State Government after the subdivision of Plot R into Plots A, B, C and D, did not appropriate Plot D, what the Federal Government is deemed to have returned or released to the late Chief Ukpabi Asika in 1993 was the rump of Plot ‘R’ which is the quantum now called and known as Plot D with some buildings earlier erected thereon by him.
Learned counsel also contended that Exhibit ‘C’ and D are laws of equal status so Exhibit D cannot invalidate Exhibit ‘C’ nor can it be rendered nugatory by Virtue of Decree N0 1 and N0 13 of 1984. On the status of the Land Use Act of 1978 vis-a-vis Exhibit E; learned counsel submitted that both parties in their pleadings and evidence claimed to have derived their grant from the Anambra State Government and the learned trial judge was conscious of it and evaluated the evidence before him in details before arriving on the conclusion that the Respondent’s title was established being the person in possession immediately before the Land Use Act 1978. He added that the learned trial judge was right to rely on Section 149(d) of the Evidence Act to hold that the Respondent’s claim was based on his title documents while the appellants based theirs on Exhibit D and E instead of any title document.
On the finding of the learned trial judge in the claim for trespass based on admission of appellants that they maintained a garden on the land in dispute, he submitted that trespass is actionable per se without proof of actual damage. He added that the Respondent both in his pleadings and evidence showed that he took possession of the land in dispute immediately after the allocation to him but the appellants trespassed on it by building a wall fence, so the learned trial judge was correct in his finding that a claim for trespass was established. But even if his reasoning was wrong, the concern of this court is to decide whether the decision was right and not whether the reasons there from were right or wrong. OKAFOR VS A-G ANAMBRA STATE (2000) 11 NWLR (PT 679) 479.
It is settle that in a claim for declaration of a Statutory Right of Occupancy to a parcel of land, the burden is on the plaintiff to satisfy the court that he is entitled, on the evidence brought by him, to the declaration which he claimed. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case except where it supports the case of the plaintiff. If the burden on the plaintiff is not discharged, the weakness of the defendant’s case will not help him. See EGBO VS ANADI (2012) 8 NWLR (PT.1301) 69; KODILINYE V. ODU 2 WACA 336; ABISI VS EKWEALOR (1993) 6 NWLR (PT 302) 643: ANABARONYE VS NWAKAIHE (1997) 46 LRCN 185: JULES VS AJANI (1980) 5 SC 96 and UDIH VS IDEMUDIA (1998) 56/57 LRCN 3184. In the instant case, the Respondent pleaded and led evidence to the effect that by virtue of Exhibit ‘C’, the Anambra State Government revoked plot ‘R’ in 1976 and sub-divided the said plot into four whereby plot ‘C’ was allocated to him in 1977 by virtue of Exhibit ‘B’ (Anambra State official Gazette No 23, vol. 2 of 4th August, 1977 containing Public Notice No. 350). Pursuant thereto, he executed a building lease with the Anambra State Government which was Registered as No 4 at page 4 in volume 1016 of the lands Registry in the office at Enugu, now Awka. The said building lease was tendered and admitted in evidence as Exhibit ‘A’. He immediately thereafter commenced the construction of a house on the said plot ‘C’ which was brought up to a foundation level. It was at this stage that the Appellants trespassed into the said plot of land and put up a wall fence encompassing both plot ‘C’ and plot ‘D’.
The appellants on their part claimed that plot ‘R’ including the land in dispute was granted to the late Chief Ukpabi Asika by the defunct East Central State Government and he erected a building thereon sometime in 1970. The said plot ‘R’ was forfeited on the order of the Federal Military Government by virtue of Exhibit ‘D’. The public officers (forfeiture of Assets) Order 1977. It was however restored to him in 1993 by virtue of Exhibit ‘E’ (forfeiture of Assets (Release of certain forfeited properties, etc) Decree 1993.
From their pleading and evidence, the appellants relied heavily on Exhibit ‘E’ as the major source of their entitlement to the said plot ‘R’ having restored it back to them in 1993 after the order of forfeiture in 1977.
They pleaded in paragraph 2(ii) and (iii) of their amended statement of defence as follows:-
2(ii) The land the subject matter of this suit has from inception been known as plot R, G.R.A, Onitsha in the then East Central State of Nigeria.
It was originally allocated to Mr. Ukpabi Asika (as he then was) who was at all times material duly qualified as an allotee based on the criteria established at the time for allocation of such plots.
2(iii) Defendants hereby plead and shall rely on all instruments of transfer as well as all other documents appertaining thereto with regard to the said property.”
Curiously enough no such documents or instruments of transfer relating to the plot of land was tendered in evidence by the appellants to support or justify their averments. In her evidence in Chief the 1st Appellant as PW2 in the lower Court testified that the land in dispute was granted to Ajie Ukpabi Asika in the early 1970s but in 1977 it was forfeited to the Federal Government. In 1993 it was returned to the late Ajie Ukpabi Asika. Under cross-examination, she answered that at that time government land had leases and not certificate of occupancy and a lease was granted to late Ukpabi Asika on the property in dispute. She added that she had a copy of the lease agreement with her in Abuja where she resides and will bring it to Court at the next adjourned date. No such document of title was however tendered by the appellant as promised.
As earlier stated, the Respondent in support of his claim to the land in dispute tendered:
EXHIBIT A:- Building lease executed between him and the Government of Anambra State for plot ‘C’ V.I.P Rest House layout, Onitsha.
EXHIBIT B:- Anambra State official gazette No. 23 vol. 2 of 4th August 1977 at page 296 showing allocation of State land, plot ‘C’ V.I.P Rest House to the Respondent
EXHIBIT C:- Anambra State Revocation of State lands ALLOCATION EDICT, 1976 showing Revocation of plot ‘R’ V.I.P. Rest House Layout, Onitsha
Now it is how fully entrenched in on our jurisprudence that there are five ways of proving title to land. These are:-
(a) By Traditional Evidence;
(b) By production of documents of title duly authenticated in the sense that due execution must be proved;
(c) By positive acts of ownership extending over a sufficient length of time;
(d) By acts of long possession and enjoyment of the land.
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
See IDUNDUN VS. OKUMAGBA (1996) 9-10 SC 227: CWO VS ANI (2004) 17 NSCQR 36: ADANYI VS ANWASE (2006) 12 NWLR (PT 993) 183: NKWO VS. IBOE (1998) 7 NWLR (PT 558) 354 AND CHUKWU VS. DIALA (1999) 6 NWLR (PT 608) 674.
It is also settled that a party claming title to land is not bound to plead or prove more than one root of title to succeed. It is enough if he can prove only one of the recognized five ways of establishing a case for title. See EGBO VS. AGBARA (1997) 1 NWLR (PT 481) 293 AND IDUNDUN VS. OKUMAGBA supra.
Root of title simply connotes means or process through which a party came to be the owner of the land in dispute. See OFUME VS NGBEKE (1994) 4 NWLR (PT 341) 746.
The Respondent as plaintiff in the lower Court pleaded and tendered in evidence Exhibits A, B and C in proof of his claim of title to plot ‘C’ V.I.P Rest House Layout, Onitsha. The said exhibits were not challenged neither were their authenticity in doubt. The appellants on the other hand, as defendants therein did not tender any document of title to the land or justified any other mode of proof of title to debunk the Respondents claim. Their major and only cognate means of asserting ownership is Exhibit ‘E’, which restored to them the said land earlier forfeited in 1977.
I had earlier in this judgment addressed the issue of Exhibit ‘E’ to the effect that it does not qualify as it where, as a document of title to land, but only an order of the Federal government directing the release of a property earlier forfeited to, (in this case) the Anambra State Government. In other words whatever property associated with the name of the late Ukpabi Asika earlier forfeited to the Anambra State Government in 1977 was by Exhibit ‘E’ made in 1993 directed to be released to him. To my mind, this was without prejudice to the root of title to such property. The learned trial judge in his judgment made the following findings and conclusion:-
“The manner in which both parties presented evidence in this suit determined the direction of this judgment. Whereas the plaintiff presented his document of title to the land in dispute (Exhibit A), the defendants tendered legislative instruments (Exhibits D and E) instead of documents of title which they pleaded. Private individuals do not acquire title to land by legislation. Therefore the case presented by the defendants lacks probative value.”
I agree with the finding of the learned trial judge and I have no cause disturb or interfere with it. See IGALI VS LAWSON (2005) ALL FWLR (PT 262) 563. OKPALAKA VS UMEH (1976) 9-10 SC 269: AND EGBA VS OGODO (1984) 1 SCNLR 372.
Both learned counsel for the parties had on this issue under consideration engaged in thought provoking and intellectually stimulating postulations on the place of Decrees No 1 and 13 of 1984 and Exhibit ‘E’ vis-a-vis the land Use Act of 1978 as well as Exhibit C. Regrettably, I do not intend to embark on any consideration of the supremacy of one over the other as they are not as I earlier indicated, relevant to the issue at stake, because the Respondents claim against the appellants is totally detached from exhibit E which forms the basis of their defence.
On the claim for trespass, the learned trial judge after making a finding that it was not proved by satisfactory evidence as to when the act of trespass committed by the appellant took place refused to award damages for trespass against the defendants or order them to demolish the wall fence on the land in dispute. However he proceeded to make an order of perpetual injunction restraining the defendants from further trespass into the said plot ‘C’ V.I.P Rest House Layout, Onitsha. This to my mind contradicts his finding that there was no proof of any act of trespass (for this I agree), on the land in dispute. An order of injunction restraining a party from further trespass must of necessity flow from a finding of an act of trespass against him. In the circumstance I hereby set aside the order of perpetual injunction made by the learned trial judge. Issue No 4 is therefore partly resolved in favour of the appellant.
On the whole I find that save for the order of perpetual injunction, this appeal lacks merit and is hereby dismissed. The Judgment of the lower Court delivered on the 19th day of December, 2006 is hereby affirmed except for the order of perpetual injunction which is hereby set aside.
I make no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have had the opportunity of reading in advance the lead judgment delivered by my learned brother Oseji, JCA. I agree with the reasoning and the conclusion reached, that the appeal lacks merit and substance and should be dismissed. I also dismiss the appeal. I affirm the judgment of the lower court delivered on the 19th day of December, 2006 except for the order of perpetual injunction which is set aside. I abide by the order as to costs.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in advance the lead judgment just delivered by my learned brother, S.C. Oseji, JCA.
I am in complete agreement with the reasoning and conclusions reached in the said judgment, which I adopt as mine. I abide by the consequential orders made in the said judgment.
I make no orders as to costs.
Appearances
O. AnumonyeFor Appellant
AND
O.J. Nnadi SAN,
Ugo Anazodo,
F.U. Abazuonu and
Olisa EdeFor Respondent
