PETER DZAWUA v. AONDOYILA ANDZA & ORS
(2019)LCN/13902(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/J/162/2009
RATIO
PRACTICE AND PROCEDURE: WHETHER A CASE BEING DECLARATORY REMOVES THE BURDEN OF PROOF ON A PARTY
Furthermore, the case of the 1st respondent being declaratory in nature, the perceived non denial by the appellant did not remove the burden of proof which vested on the 1st respondent to prove his case on the strength of his case and not on the weakness of appellant?s case. See Motunwase V Sorungbe (1988) 5 NWLR (Pt. 90) 92, 151 and Shasi V Smith (2009) 18 NWLR (Pt. 1173) 330, 345. PER JOSEPH EYO EKANEM, J.C.A.
PROPERTY LAW: EQUITABLE RIGHT TO LAND
The law is that payment of purchase price coupled with possession gives rise to an equitable interest in the land which ranks as high as a legal estate. See Etajata V Ologbo (2007) 16 NWLR (Pt. 1061) 554, 601, Ohiaeri V Yussuf (2009) 6 NWLR (PT. 1137) 207, 224 and Registered Trustees of the Apostolic Faith Ministry V James (1987) 3 NWLR (Pt. 61) 556, 568. The trial Court was therefore right in the use to which it put the last mentioned case. Such an interest can only be defeated by a purchaser for value without notice of the existing equity ? Gbadamosi V Akinloye (2013) 5 NWLR (Pt. 1378) 455, 480. PER JOSEPH EYO EKANEM, J.C.A.
PROPERTY LAW: WHEN THE VENDOR’S TITLE HAS BEEN DISPUTED WHAT IS THE NEXT ACTION
Since, from the statements of defence, the title of the vendor of the 1st respondent had been disputed, he normally should have been under a duty to prove the title of his vendor. See Ukaegbu V Nwololo (2009) 3 NWLR (Pt. 1127) 194, 200. Nevertheless, it seems to me that in the peculiar circumstances of this matter, the 1st respondent did not have that duty rest on him. The case of the appellant, in part, was that the land originally belonged to the late Gban Abi and that he ?sorted out? the heirs of Gban Abi after he was granted a right of occupancy on the land by the Benue State Government. PER JOSEPH EYO EKANEM, J.C.A.
ARBITRATION: WHETHER AN AWARD MADE BY A NATIVE ARBITRAL TRIBUNAL CAN BE BINDING ON PARTIES AND CREATE AN ESTOPPEL
An award made by a native arbitral Tribunal can be binding on the parties thereto and could create estoppel by way of res judicata provided (i) there was voluntary submission of the dispute to the arbitrators for arbitration (ii) there was agreement by the parties, expressly or impliedly, that the decision of the arbitrators would be accepted as binding (iii) that the native arbitration accorded with the custom of the parties (iv) that the arbitrators reached a decision and published the award. See Kpo v Ajom (2015) 8 NWLR (Pt. 1461) 201, Ieka v Tyo (2007) 11 NWLR (Pt. 1045) 385 and Akala v Okusin (2010) 10 NWLR (Pt. 1202) 412. From the pleading of the 1st respondent, the evidence of PW2 and PW4 as well as Exhibit 9, those ingredients were satisfied. PER JOSEPH EYO EKANEM, J.C.A.
PROPERTY LAW: IMPORTANCE OF A SUBSISTING RIGHT OF OCCUPANCY
Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore, be illusory and invalid. See also Gbadamosi v Akinloye (2013) 15 NWLR (Pt. 1378) 455, 480 and Ogunleye v Oni (1990) LPELR ? 23 42 (SC) 43 14 where Obaseki, JSC stated that;
It should be clear that any person without title to a parcel of land in respect of which the certificate of occupancy was issued acquires no right or interest which he did not have before.?
The appellant failed to show any interest in, right or title to the land in dispute before Exhibit 14, was issued to him. Infact, he had earlier applied for allocation of land. He was allocated a parcel of land on TPS 002 and right of occupancy was granted to him on the said land. When it was discovered that that parcel of land was encumbered, he was allocated a new parcel of land, that is, the land in dispute. It appears that government officials were involved in detestable venture of random allocation of land without regard for pre existing interests on such land. The right of occupancy granted to the appellant was worthless. See Dantsoho v Mohammed (2003) 6 NWLR (Pt. 817) 457. PER JOSEPH EYO EKANEM, J.C.A.
PRACTICE AND PROCEDURE: COUNTER CLAIM: DEFINITION
A counter claim is a legal procedure which allows a defendant to maintain an action against a plaintiff as if it is a separate action. Indeed it is viewed in law as a cross ? action and separate and independent action though the defendant, for convenience and speed, usually joins it with the defence. It has its own claim, pleadings evidence, judgment and costs. See Mobil Producing (Nig) Unlimited v Monokpo (2003) 18 NWLR (Pt. 852) 346. It must be emphasized that a counter ? claim has its own judgment. In Oroja v Adeniyi (2017) 6 NWLR (Pt. 1560) 138, 152 Peter- Odili, JSC, opined that
a counter claim is a different action from that on which the main claim is predicated which translates to two separate actions for which there must be two distinct judgments which can be in the same process or suit or another date and process.?
Where, however, as in this instance the facts are intertwined and interwoven as regards the plaintiff?s action and the defendant?s counter ? claim, the success of the plaintiff?s claim would mean the failure of the defendant?s counter ? claim. See Unokan Enterprises Ltd v Omuvwie (2005) 1 NWLR (Pt. 907) 293, 315 ? 316. In such a circumstance, the Court is not required to separately consider the same questions that were considered in the plaintiff?s claim in the counter ? claim.
In Dyeris v Mobil Oil Nig Plc (2010) 1 NWLR (Pt. 1175) 309, 334 335, Augie, JCA (as he then was) stated,
Where common questions determinative of a claim and counter claim arise in a case, the Court is not expected to consider the same questions separately in relation to the counter claim.”
In the light of the above, hold that the learned trial judge was right in dismissing the appellant’s counter – claim as it did. PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
PETER DZAWUA Appellant(s)
AND
1. AONDOYILA ANDZA
(Substituted for PATRICK IKONRON ANDZA)
2. THE COMMISSIONER, MINISTRY OF LANDS AND SURVEY, BENUE STATE
3. MINISTRY OF LANDS AND SURVEY BENUE STATE
4. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE BENUE STATE Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Benue State sitting in Makurdi (the trial Court) delivered on 17/3/2009. In the judgment, the trial Court found in favour of the 1st respondent (as plaintiff) and entered judgment for him against the appellant and the 2nd ? 4th respondents (as 1st defendant and 2nd ? 4th defendants, respectively).
The 1st respondents case was that he is the owner of a piece of land situate along Makurdi ? Aliade Road, opposite NICON Insurance office, Makurdi (land in dispute). He purchased the land from one Mrs Shikaan Kpakpan. Upon payment for the same an agreement was drawn up. The Government of Benue State sought to take over the land to set up a project. When the Government could not carry out the project, he continued to farm on it. In 1996, following an act of trespass on the land by the family of the late Gban, he made a report of the trespass to the land committee of Idye and elders of Idye kindred. The body resolved the matter in his favour.
In June, 2005, the appellant drove away his workmen from the farm, claiming that the land belonged to him. He also destroyed the crops that he (the 1st respondent) planted on the land. Consequently, the 1st respondent sued the appellant and the 2nd ? 4th respondents at the trial Court claiming the following reliefs:
?a) A declaration that the plaintiff is the rightful owner of Plot No. BNB 1274 in dispute which land is covered by the Benue State Survey Beacons numbers NZ1472, NZ 1473. NZ 1835 and NZ 1842 situate and located at Makurdi ? Aliade Road opposite Nicon Insurance Office, Makurdi.
b) A perpetual injunction against the Defendants restraining them or their agents, heirs or successors in title from further trespassing unto the said land belonging to the plaintiff.
c) Special damages representing the following:
i. Six Thousand Naira (N6,000.00) representing the sum advanced to the workers who has carried out his work for him.
ii. Thirty Thousand Naira (N30,000.00) only representing 20 stands of Banana trees destroyed at N1,500.00 per tree which are already yielding fruits.
iii. A total of twenty thousand (N20, 000.00) only representing the destruction of maize and melon by the 1st defendant.
Grand Total: Fifty six thousand naira (N56, 000.00) only
d) General Damages of 1 million naira.?
The appellant and 2nd ? 4th respondents, respectively, filed their statements of defence denying 1st respondent?s claim. The case of the appellant is that he was granted the land by the Governor of Benue State and on his own he ?sorted out? the original sellers; namely, the family of the late Gbam Abi (named Gban by appellant) who settled on the land about 1934. It was appellant?s position that if there was any meeting with the land committee, the same must have been illegally set up by the 1st respondent without the knowledge and participation of Gban?s children. Since he (1st defendant) was granted right of occupancy over the land in 1985, he has been religiously and peacefully enjoying possession without disturbance by anyone except one Mr John Uma and, the matter was resolved in his favour.
The 1st defendant joined a counter ? claim to his statement of defence wherein he sought the following reliefs against the 1st respondent:
a) A declaration of title to the parcel of land covering a total area of 2,614.95m2 on Makurdi sheet TPS 007A opposite the present NICON office Makurdi and situate and lying along New Bridge Road in the Makurdi urban Area and over which the plaintiff holds a Benue State Government Right of Occupancy No. BN 253 (for 99 years) given under the hand of the Governor on 22nd of January 1985.
b) An order directing the Defendant to move out of the said parcel of land.
c) An order of injunction perpetually restraining the defendant his servants, agents privies and successors in title from re ? entering, remaining, or committing any acts or further acts of trespass on the said parcel of land and from doing anything or acts that tend to or has the effect of undermining or in any way challenging or acts that disturb or tend to disturb the peaceful possession and enjoyment of same by the plaintiff.
c) General Damages. N200, 000.00.?
At the trial, the 1st respondent called four witnesses including himself and tendered seven exhibits. The appellant called five witnesses including himself and tendered seven exhibits. After taking written addresses, the trial Court gave judgment in favour of the 1st respondent and dismissed the appellant?s counter ? claim.
Dissatisfied with the decision, the appellant has appealed to this Court by way of a notice of appeal which was amended and further amended by order of Court. The further amended notice of appeal incorporates fifteen grounds of appeal.
The
