OGEDEGBE & ANOR v. ODUDU
(2020)LCN/15449(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, November 18, 2020
CA/AS/245/2016
RATIO
LAND: PROOF OF TITLE TO LAND
In a claim of title, a party wins on the strength of his case and not on the weakness of the opponent’s case. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1) MR LUCKY OGEDEGBE 2) MISS ANN OGEDEGBE APPELANT(S)
And
MADAM ROSE ODUDU RESPONDENT(S)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Delta State High Court, sitting at Effurum Judicial Division in Suit No. EHC/366/2002 delivered on 25th February 2016 against the Appellant and in favour of the Respondent herein for a declaration of title to a piece of land, injunction and damages for trespass. Dissatisfied, a Notice of Appeal dated 4th March 2016 was lodged on 9-3-2016.
STATEMENT OF THE FACTS OF THE CASE
Both the Appellants and the Respondents claimed ownership of a piece of land situate at Okpoku bush off Jakpa Road, Effurum in the Uvwie Local Government Area of Delta State, Nigeria.
The Respondent as plaintiff claimed as the beneficial owner in possession of the land in dispute measuring 100 feet by 100 feet by acquisition from one Chief Franklin O. Moritan (PW1) vide Exhibit ‘A’ dated 02-01-1978.
The land in dispute was part of larger portion of land acquired by PW1 (Chief Francis O. Moritan) from Odjomo family of Effurum.
That in 1987, the Emeduo and Akpossio Families started laying adverse claims to the large portion of the fifteen (15) acres including the land in dispute.
That for peace to reign, Chief Frank Moritan (PW1) negotiated and repurchased same from all the families laying claim to the fifteen (15) acres of land. And paid the Emeduo/Akpossio families on instalment basis for the 15 acres of land.
Exhibits ‘H’, H1 and H2 are purchase receipts issued by the Emeduo/Akpossio families in favour of Chief Frank O. Moritan in respect of the land.
After the purchase of the land in dispute, the Respondent took possession by engaging one surveyor M. N. Chukwumah who prepared a survey plan – of the land Exhibit ‘B’ dated 17-11-1986; dug a well on the land and erected a wall fence to demarcate the land in dispute.
The plaintiff now Respondent also put PW3 (Paul Rhiogbere) a farmer who planted crops on the land.
The Defendant, now Appellant, entered the land in 2002 and built 2 bungalows thereon within a spell of 4 months, thus forcing the Respondent who had been in possession since 1986 (over 13 years) to institute the action.
On their part the Appellant on 22-08-2002 acquired the same piece of land in dispute from Emeduo Family of Effurum via Exhibit ‘K’ dated 28-8-2002. The vendors thereat are described as principal members of Emeduo family of Ekpan.
The land was taken possession of after the purchase and two building thereon were commenced in August and completed by December, 2002, as per the testimony of the 2nd Appellant. That their predecessor in-title Emeduo deforested the land and that their vendors were members of the Emeduo family.
Mr. Wilson Itakpovwa – DW1, the Appellant’s star witness and a member of the Emeduo family maintained that the original owners of the land are the Emeduo, and Akpossio families who sold to the Appellants. DW1 also admitted that Exhibit’s ‘H’ ‘H1’ and ‘H2’ are purchase receipts issued by the family in favour of PW1 (Chief Frank O. Moritan) in respect of the land in dispute.
See pages 114-115 of the Record.
Having transmitted the record of Appeal, since 27-6-2016 and upon a protracted delay in the commencement of hearing as it was the situation at the trial Court, the parties finally filed and exchanged their Briefs of Argument.
The Appellant’s Brief of Argument dated and filed on 2-20-2018 was settled by SC Eti Esq of G. C. Igbokwe, SAN & Co Benin City, while the Respondent’s Brief dated and filed on 4-12-2018 was settled by S. O. Atunure Esq. of S. O. Atunure Associates & Associates.
Appellant raised 2 Issues for determination, whilst the Respondents also raised 2 Issues.
The Appellant’s Issues are as follows:
1) Whether from the totality of evidence and pleadings led the trial Learned trial Judge was right in holding that the evidence of plaintiff that she purchased the land in 1978 contrary to the evidence of her predecessor in title that it was in 1986 does not amount to material contradiction.
2. Whether the learned trial Judge was right in holding that the sale of the land to the Appellants by the heads of Emeduo and Akposio families was void ab initio.
The Respondents Issues are the same as the Appellants Issue in context and intendment. I need not reproduce them, as they are not distinct issues from any Respondents Notice or Cross-Appeal.
ISSUE 1
It was submitted that the trial Judge was wrong in holding that there was no material contradiction in the evidence of plaintiff and his predecessor in title who testified on purchase of same land in 1986 as against the plaintiff assertion that it was in 1978.
The Learned counsel submitted that the oral evidence of a party to land in dispute contradicts the evidence of his predecessor-in-title called as a witness by the party and pari materia with the pleadings, such evidence is tantamount to material contradictions which entitles the Court to hold that such evidence is untrue and to expunge same from the record.
Okuwobi V. Achonu (2006) 11 WRN 156, Overseas Construction Limited V. Creek Enterprise Ltd (1985) 3 NWLR (pt. 13) 407, Eze V Atasie and a host of other cases. That parties are bound by their pleadings and evidence which is not inconsonance are bound to be expunged as they go to no issue.
That the plaintiff had the burden of proving his case and would succeed on its merit and where it is not so, it should be dismissed. Ukaegbu Vs. Nwololo (2009) 3 NWLR (pt 1127) 203 SC.
Okafor V. Ejiogu (2011) 49 WRN 88
Learned counsel submitted that the predecessors in title had to have his root of title proved, as was necessitated by the evidence led. Archibong V. Edak (2006) 7 NWLR (pt 980) 509 and Lawson Vs. Afani Continental Co. Ltd (2002) 2 NWLR (pt 752) 585 relied upon.
That where a person’s title and his predecessor’s title is challenged, then both must be proved. Nruama Vs. Ebuzoeme (2006) 9 NWLR (pt. 985) 217 as he could not have acquired a valid title to such land if in fact his guarantor had no title thereto.
That the reasoning of the court at pages 153 lines 1-7 of the records thus:
“that the evidence of the plaintiff that she purchased the land in 1978 from Chief Frank Moritan PW1 and the Evidence of PW1 that it was in 1986 that the plaintiff purchased, though contradictory, do not amount to material contradictions. What is material that PW1 Chief Frank Moritan sold the portion of the land in dispute to the plaintiff.”
We have been urged to hold that the trial Court was in error in holding that the year of purchase though contradictory do not amount to material contradictions and that we should resolve Issue one in favour of the Appellant.
The respondent’s counsel urged that the submission was unfounded in law as, according to him, it is not every contradiction that will affect the credibility of a witness or evidence. That minor discrepancies or say in details will not affect the evidence led. Counsel contended that a piece of evidence is contradictory where it asserts or affirms the opposite of what the other asserts.
That it was trivial and minor and cannot vitiate the evidence.
A host of cases to wit Digayya State (2006) 134 LRCN 397 at 425-426, Ennahoro V. The Queen (1965) NMLR 266 @ 281-282, Sele V. State (1993) 10 LRCN 49 @ 58; Jimmy V. State (2013) 220 LRCN (pt. 1) 68 @ 81 & 90;
Agbo V. State (2006) 135 LRCN 808 at 827; Mogaji V. Cadbury (Nig) Ltd (1985) NWLR (pt. 7) 393; Atano Vs. A-G Bendel State (1988) NWLR (pt 75) 201
Egesimba Vs. Onuzuruike (2002) 103 LRCN 2485 @ 2512; Ogoala V. State (2009) 7 ACLR 357 @ 385-386. Queen Vs. Michael Omisade & 17 Ors 1964 NMLR 67 @ 69, Effia V. State (1999) Vol. 70 LRCN 1735 at 1747 were cited for this stance.
The learned counsel emphasized that the contradictions complained of, by the Appellants between the evidence of the Respondent and PW1 as to the date the land in dispute was sold to the Respondent did not amount to material contradiction as it did not affect the substance of the issue of the sale of the land in dispute to the respondent by the PW1 (Chief Frank Moritan.
The learned counsel relied on excerpts from the cases earlier on reproduced supra including Egesimba Vs. Onuzuike Supra where Ayoola, JSC delivering the majority decision of 4-1 in dismissing the appeal predicated on contradictions in the evidence of witnesses had this to say:
“I have examined the evidence of these two witnesses along with the other evidence led at the trial by both parties and I am satisfied that the Court below was right in coming to the conclusion that the evidence of these two witnesses was not discredited by the seeming contradictions. That a report was made by the plaintiff in 1976 was not indispute. If, therefore, DW1 spoke of Arbitration in 1957, it must have been mistaken as to the years. Neither party talked of two Arbitrations…”
That the material issue was not when the land was sold but – whether PW1 sold the land in dispute to the Respondent, and secondly whether PW1 had valid title which he could pass to the Respondent and that there was no material contradiction that can lead to a reversal of the decision of the trial Court. That Issue one be resolved against the Appellant and in favour of the Respondent.
ISSUE 2
It was argued that a sale of family land by the Head of the family is valid to transfer title to a purchaser for value but where it is challenged by other principal members of the family such transaction is in law voidable subject to ratification by the principal members of the family.
Ohiaeri V Yusuf (2009) 6 NWLR (pt 1137) 2017, Folami V. Cole (1990) 2 NWLR (pt 133) 445; Esan V. Faro (1947) 12 WACA 135; Ekpendu Vs Erika (1959) SCNLR 186, Ajarho V. Aghoghorivia (1985) 4 SC 1; Solomon V. Mogaji (1982) 11 SC 1.
That there was the unchallenged evidence of the Appellants through DW1 that the purchase was from the Eme duo family, the original owners of the land represented by Messrs Blankson Udibo as the Head of the family and Mr. Stephen Diyo Ejogbamu as a principal member of the family.
DW1, Mr. Wilson Etakpovwa had testified that the land in dispute belonged to the Emeduo and Akpassio families and that sale by them was pleaded and testified to; that the trial Court was wrong in holding that the sale was null and void ab initio abinitio, and that there was no sale of land to the 2nd defendant.
In response, it was contended that a sale by the Head of the family with the majority of the principal members was valid while sale carried out by the Head of family to the exclusion of the principal members of the family (as in this case) was only voidable while a sale of family land without the consent of the family head was void ab inotio.
Babayeju V. Ashamu (1998) Vol. 61 LRCN 4225 AT 4238-4239; Jiaza Vs. Bamgbose (1999) 69 LRCN 1278 at 1292 and a host of other cases were relied upon in aid.
That Appellants had pleaded in paragraph 2(i) of their joint statement of Defence that the 2nd Appellant purchased the land in dispute from Emeduo family of Effurum represented by Messrs Blackson Ubido (Head of Family) and (2) Mr. Stephen Diyo Ejogbamu. The 2nd Defendant shall rely on the Deed of conveyance and the receipt dated 28/08/2002 evidencing the transaction between the 2nd Defendant and Emeduo family (see page 17 of the Records).
The Deed of conveyance is the Exhibit ‘K’.
That contrary to the above pleadings, DW1, Wilson Itakpovwa, a member of the Emeduo family testified at page 114 of the record that “the original owners of the land in dispute are Emeduo and Akpossio families.”
It is submitted that the Exhibit ‘K’ – the title root of the Appellant has Mr. Blackson Ubido and Mr. Stephen D. Ejogbamu describing themselves as principal members of Emeduo family without reference to Akpossio family, a co-owner of the land in dispute. Counsel asks the question whether those two persons supra who are principal member as expressed in Exhibit ‘K’ validly in and alone, convey the land to the Appellants.
Answering in the negative, the cases of Agbloe V Sappor (1947) 12 WACA, 187; Akinfolarin Vs. Akinnola (1988) 3 NWLR (pt 81) 235 at 244; Babayeju Vs. Ashamu (1998) vol. 61 LRCN 4225 at 4239; Lukan Vs Ogunsusi (1972) ALL NLR 476 at 480 Cases and Materials on Nigeria Land Law (1997) Edition) by Niki Tobi JSC blessed memory relied upon.
That the Emeduo family alone as a Branch cannot validly convey the land as they cannot give what they do not have or possess. That the principle of Nemo dat quod non habet applied to invalidate Exhibit ‘K’.
That on the authority of Babayeju V. Ashanmu (1998) Supra and Lukan V. Ogunsusi (1972) Supra, the trial Court was right, when he so held.
That the DW1 strengthened the plaintiff’s case in that he said it is true that the PW1 – Chief Frank Moritan purchased the land from his family (those that sold to the Defendant/Appellants). That no issue was joined on when the purchase was made and it is not the case of the Appellant that PW1 did not sell land to the Respondent.
The Respondent proceeded to address on the alleged incompetence of the amended Notice of Appeal, urging that it was incompetent and liable to be struck out for being amended and filed without the prior leave of this Court granted.
That afortiori, the Appellant’s Brief of Argument dated 17-09-2018 erected upon the defective and incompetent Amended Notice of Appeal dated 18-05-2017 was incompetent and an exercise in futility because one cannot put something on nothing and expect it to stand.
FBN PLC V. TSA IND LTD (2010) 187 LRCN 1 at 47.
Counsel pointed out the fact of a Notice of Appeal dated 4-3-2016 but did not refer this Court to any date of filing thereof and also a second Notice of Appeal. That the Notice dated 4-3-2016 and contained at pages 160-161 of the Record should be deemed abandoned as no Issue was distilled therefrom.
That the Issue be resolved against the Appellant and the appeal be dismissed.
RESOLUTION OF THE ISSUES IN THE APPEAL
Before resolving the Issues in this rather straight and clear appeal, I should preface that there is an Amended Notice of Appeal filed in this appeal. It was deemed filed on 21-1-2019.
Having said that, I discountenance all the submissions relating to the alleged incompetence of the extant Notice of Appeal and the Appellant’s Brief of Argument erected thereon as after all even the sole Omnibus Ground of the original Notice alone was sufficient to found/ground the Issues distilled. In this appeal, two (2) Issues, nonetheless have been raised in the same verbiage and meaning and purport and argued by both parties. The Respondent appreciated the Issues which he also knew arose from the Grounds of Appeal and related to the Judgment complained of.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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ISSUE ONE
This issue simply queries whether the assertion by the plaintiff that she purchased the land in 1978 from PW1 who on his part said it was in 1986, was not a material contradiction in evidence in the case of the plaintiff.
I am in agreement with the Respondent’s learned counsel that it was not a material contradiction in any way as the substance of the case of the plaintiff/respondent was that he bought the land from the PW1. The PW1 did not deny the purchase from him by the plaintiff. The stating of different dates for the event was not of essence, in the purport of the evidence.
What is more, the plaintiff in cross-examination clarified the differential and reference to 1978 as being made to reflect the date when the land use Act (Decree) was made.
It was therefore an act of backdating in the perception that the purchase was made pursuant to and was subject to that Act, hence the year. Egesimba V. Onuzuruike (2002) 103 LRCN 2485 at 2512 is clear authority to show that the seeming contradictions in the date of the Agreement of purchase was not material as it did not obviate from the fact that the purchase was made from the PW1 by the plaintiff.
Even then the contradiction had not occasioned any miscarriage of justice to the Defendant Appellant who had testified to buying from the Emuduo family and through Messrs Blackson Ubido and Stephen Diyo Ejogbamu subsequently in August 2002 and also as Exhibits H – H2 were admitted by the Defendant/Appellant’s witness, the DW1 – Wilson Etakpovwa as being the receipts used by the plaintiff/respondent to pay the purchase price for the land from the family. DW1 in evidence at page 114 of the record said “Chief Frank Moritan bought the land in dispute from my family …”
The above puts paid to the question whether the Respondent bought the land from the DW1’s family. The date of the purchase was therefore immaterial and variation in its stating by the plaintiff and his witness had not occasioned any miscarriage of justice, it not been a material contradiction.
The trial Court was right in so holding.
I affirm the view and resolve Issue one in favour of the Respondent.
ISSUE 2
This Issue is settled in law as correctly submitted by both parties as relating the transfer of family property or title in land. On the evidence led, the DW1 admitted that the land in dispute was owned originally by the Emuduo and Akpossio families.
That the land was sold by the family represented by Chief D. O. Ejagbamu who belongs to same family with him, the DW1.
That Chief Frank Moritan approached his family to purchase the land, bulldozed 15 acres but paid for only 4 acres and had not paid for the balance of 11 acres before he died. That the family sold all the land because Chief Frank Moritan had not fulfilled his part of the bargain. That Exhibits H-H2 were receipts evidencing part payment by Chief Frank Moritan.
There is no doubt that plaintiff did not complete the transaction with the Emeduo family alone when he discovered that the other co-owner Akpossio family had to be involved.
There was no evidence led by the Defendants in proof of the sale of all the lands to other persons upon the alleged default of the Respondent’s predecessor in title.
The Appellants had pleaded and testified contradictorily in respect of their title.
They pleaded the root of title in Emeduo family; however, their DW1 testified to the land as being owned by Emeduo and Akpossio families.
Their Deed of conveyance (Exhibit ‘K’) is expressed as been done for Emeduo family and by the principal members thereof. By its showing, the Appellant’s title was defective by fact of contradiction and the uncertainty in the real root of title; what is even worse is that the conveyance as done by principal members of a family land is prima facie void – as no Head of family is shown to have authorized same or been involved.
On the contrary, the Respondents who had, given evidence of prior occupation following prior purchase even if inchoate by purchase receipts Exhibits H-H2 which the Appellants DW1 said was in respect of land sold by their family.
The plaintiff was in occupation pursuant to purchase by him. The conveyance vide Exhibit ‘K’ made by the principal members of the Emeduo family alone and not inclusive of the Akpossio family with whom the joint original title to the plots lie and not even expressed to have been done by the Head of the joint Family is a nullity.
The principle of Nemo dat quod non habet i.e “you cannot give what you do not have” as submitted by the Respondent’s learned counsel applies, therefore.
The learned trial Judge was right when he held as follows:
Blackson Ubido and Stephen Diyo Ejagbamu having described themselves as principal members of the family do not have the capacity to transfer or convey the land in dispute to the Defendant without the head of the family. The purported sale of the land in dispute by Blackson Ubido and Stephen Diyo Ejogbamu was null and void ab initio. There was never a sale of the land to the 2nd Defendant by the Emeduo family or by the Emeduo and Akpossio families.
The equitable interest acquired by the receipts Exhibits H-H2 and the possession of the land as done by the Respondents as testified to was not eroded by the subsequent entry unto the land in 2002 Vi-et armis by conveyance by a part of original co-owners of the land in dispute alone, and which had been found not to even have been done, properly.
The unassailable evidence of the Respondents, per their Evidence ‘A’ and H, H1 – H2 which were strengthened by the Appellant’s DW1, support the fact that the trial Court was right.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In a claim of title, a party wins on the strength of his case and not on the weakness of the opponent’s case.
Here, the evidence that the purchase was ultimately made from the joint original owners of the land in dispute and the sale and conveyance done by the Head of the family was not contradicted; the DW1 who was the Defendant/Appellant’s star witness strengthened the Respondent’s case and exposed the weakness in the Appellants defence and claim to title. The Respondents are entitled to rely on same. See Iyere Vs B.F.M. Ltd (2009) 168 LRCN 143 at 188 where the Court held that “a Plaintiff is entitled in law to rely on the Defendant’s evidence which supports or re-enforces the plaintiff’s case.”
In any case, no miscarriage of justice has been shown to have been caused to the Appellant in this case.
I should observe that it is apparent that the trial Judge was silent on the fact of the two buildings said to have been hurriedly put up on the disputed land by the Appellant herein.
It might be because of the suggestion that an order of injunction was disobeyed, which suggestion the Appellant (as 2nd Defendant), testifying in cross-examination denied. She denied the existence or demolition of a fence on the land or a well as existing. Be that as it may, is the principle of quid quid solo solo cedit a principle of customary law? I appreciate that parties were employing the common law and statutory concepts of conveyance but insistence on the customary conditions for transfer of title as done, herein suggests that the notions of equity and good conscience could be implored to ameliorate the rigours of customary law. Here however, constructive or actual Notice in the nature of fencing, farming, digging and existence of a well and dealings including part performance by payment and occupation would appear to have weigh against the Appellant.
It is sad. A whopping sum as damages have been ordered for the proved trespass. We have not, however been called upon to review the quantum in the circumstances of the 2 buildings already put up there on the disputed land, so as to review same to a nominal award. So be it.
The Appeal is dismissed.
I award no costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, M.A. DANJUMA, JCA.
I am in complete agreement with the resolution of the issues on which the appeal was decided, by his lordship and have nothing to add by way of contribution.
Accordingly, I too dismiss the appeal and abide by the order in relation to costs as contained in the leading judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft copy of my learned brother MOHAMMED AMBI – USI DANJUMA, JCA. I agree with the reasons and conclusion in the lead Judgment, I believe it has covered the field.
I dismiss the appeal and abide by the judgment of the trial Court. I also align myself with the orders contained in the lead judgment and adopt them as mine, including that as to cost.
Appearances:
S. C. Eti, Esq. of G. C. Igbokwe, SAN & Co. For Appellant(s)
S. O. Atunure, Esq. of S. O. Atunure & Associates For Respondent(s)
