RAPHAEL OKOCHA v. MOSES O. IRUBOR & ANOR
(2013)LCN/6121(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/B/106/2008
RATIO
”In a declaration of title to land, the party, such as a plaintiff, who traces his root of title to a particular person or family, must of necessity plead and establish the latter’s root as well, unless it is admitted by the opposing party. See Godfrey Anukam V. Felix Anukam (2008) 2 SCNJ 62.” Per YAKUBU, J.C.A
”..the law is well settled and firmly established and beyond reproach that where two persons, lay claim of title to a parcel of land, allegedly allocated to them by a common grantor, the first in time clearly takes priority, because it is stronger in law. Therefore, at law and also in equity, the doctrine is that estates and interests created thereon primarily rank in the order of their creation. So he who is earlier or first in time, is stronger in equity. That is the rationale for the maxim; qui prior est tempore est jure. See: Ayanwale V. Odusanmi (2010) 12 SCNJ 362; Ero V. Tinubu (2012) 8 NWLR (pt. 1301) 104 (CA); IBBI Ltd. v. Mutunci Co. Nig. Ltd. (2012) 6 NWLR (pt. 1297) 487 at 524 (CA); Ugbo v. Aburime (1994) 8 NWLR (pt. 360) 1 (SC); Michael Romaine V. Christopher Romaine (1992) 2 SCNJ 25; Okelola V. Adeleke (2004) 7 SCNJ 103 at 111.” Per YAKUBU, J.C.A
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
RAPHAEL OKOCHA Appellant(s)
AND
MOSES O. IRUBOR
(Suing through his lawful Attorney
MR. EPHRAIM D. AZIKE Respondent(s)
TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment): The Appellant was the Defendant in Suit No. HCY/25/2003 at the High Court, Owa-Oyibu, Delta State, while the Respondent was the plaintiff in the Suit. Respondent claimed statutory right of occupancy over the land in dispute and N1,000,000.00 (One Million Naira) special and general damages. Appellant counter-claimed and prayed for statutory right of occupancy over the disputed land, perpetual injunction and Two Million Naira damages. The case proceeded to trial and on the 29th day of November, 2007, the court delivered judgment in which it found in favour of the Respondent.
Against the said judgment of Owa-Oyibu High Court in which he declared statutory right of occupancy in favour of the respondent and awarded N50,000.00 as general damages against the appellant in favour of the respondent, the appellant has appealed to this court.
The respondent’s case is that he purchased the land from MRS. M.C. OJE (PW1 in the case) who in turn bought from Chief Samuel Okunwa (PW2 on record) who said the land was given to him by his grandmother who was farming on the land at the time of the gift from the said grandmother.
He went further to say the land is in Boji-Boji Owa and is owned by Owanta Idumuetor Community. The respondent testified and called six witnesses. PW3, PW4 testified as to how this land belonging to Owanta Idumuetor Community was allocated to the PW2.
The appellant on his part in defence of the respondent’s case against him and in proof of his counter-claim testified and called five witnesses. His case was that the land was allocated to his grandfather in 1965 by the Owanta Idumuetor Community and that when Chief Okocha Memeh the grandfather died, his father Ukagwu Okocha inherited the land and when his father Ukagwu Okocha died, he then inherited the land. The trial court heard the evidence of the parties and granted the reliefs sought by the respondent and dismissed the appellant’s counter-claim, which is why the appellant appealed to this court.
The appellant in order to prosecute this appeal filed a brief of argument settled by Prince Nwadozie A.E Okonta, of learned counsel, dated 28th April, 2010, on the same date and the same was deemed properly filed and served by this court on 8th June, 2010.
Two issues were identified for the determination of this appeal, in the said brief of argument as follows, to wit.
1. “Was the trial court not in error when it held that the Respondent proved better title when the root of title of PW2 to whom the Respondent traced his title was not established? If this question is answered in the affirmative, was the trial Court right when it granted damages of N50, 000.00 to the Respondent? (The omnibus ground and additional Grounds 1, 2).
2. Was the trial Court right in law to hold that the Respondent proved better title and declared him entitled to statutory right of occupancy over the disputed land and awarded him N50, 000.00 general damages when the PW2 on whom the Respondent rested his title gave two competing pieces of evidence as to how he got the land? (Additional Ground 3)”.
On his part, the respondent through his counsel – V.N. Adaikpoh, Esq., who settled his brief of argument, dated 17th March, 2011 but filed on 18th March, 2011 and was deemed as properly filed and served by this court, on 31st May, 2011. In it, two issues were identified for determination of this appeal, namely:
ISSUE ONE
“Whether Respondent proved the case he brought to court? If this question is answered in the affirmative whether the trial court was not right when it awarded N50,000.00 damages to the Respondent.
ISSUE TWO
Whether the Respondent discharges (sic) (discharged) the onus of proof of title in him which onus the Appellant failed to discharge, is the respondent not entitled to succeed?”
In determining this appeal, I shall adopt and resolve it on the two issues formulated by the appellant, reproduced above.
Arguing his issue 1, learned counsel to the appellant submitted that the averment at paragraph 4 of the respondent’s further amended statement of claim to the effect that the respondent inherited the land from his maternal grandfather who had got the said land from her late husband, did not plead the fact of the acquisition of the same land by the late husband of PW2’s grandmother, hence no evidence was led by the PW2 as to how his grandmother’s late husband acquired the land in question. Therefore, according to learned counsel, this fundamental defect is fatal to the respondent’s claim which ought to have been dismissed. He relied on Inko-Taria v. Goodhead (1997) 4 NWLR (Pt. 500) 453; Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745.
Furthermore, that since PW2’s grandfather had nothing to give to PW2, so also the PW2 had nothing to sell to the respondent, on the principle of nemo dat quod non habet. He relied on Ojongbede V. Esan (2001) Vol. 92 LRCN 3326.
It was the contention of learned counsel to the appellant that the latter traced his own root of title to his grandfather Chief Okocha Memeh, whom he said, was allocated the land in question, by the Owanta Idumuetor community in 1965 and how the said land passed from Chief Okocha Memeh through appellant’s own father Ukagwu Okocha before it got to him. He referred to Oyadere v. Keji (2005) vol. 123 LRCN 17; Nkado v. Obiano (1997) 50 LRCN 1084; Ohaeri v. Akabeze (1992) 2 NWLR (pt. 221) 1. Learned counsel could not see any “missing link” in the appellant’s case as found by the learned trial judge.
With respect to the claim of the respondent that the land in question was allocated to PW2 between 1970 and 1978 by the Owanta Idumuetor land office vide Exhibit “F”, it is the contention of appellant’s counsel that the same land having been earlier allocated by the same Owanta Idumuetor land office to appellant’s grandfather in 1965 vide Exhibit “J”, rendered the later Exhibit “F” invalid and worthless. He referred to Lako V. Soda (1995) 2 NWLR (pt. 378) 432 at 446; Olumide v. Ajayi (1997) 8 NWLR (pt. 517) 433 at 445 and urged us to hold that Exhibit “J” enjoyed priority over Exhibit “F”; therefore, the Owanta Idumuetor community had nothing more to allocate to the PW2 who in turn had nothing to sell to any other person, in respect of the land in question. He relied on Adelaja V. Fanoiki (1990) 2 NWLR (pt. 131) 137.
With respect to Exhibit “K” which was an unsigned land registration document by Okpara-Uku, learned counsel to the appellant, submitted that Exhibit “F” was equally unsigned by Okpara-Uku and therefore invalid, hence the valid and extant registered land allocation by the Owanta Idumuetor Community is Exhibit “J” to Chief Okocha Memeh, from whom the appellant inherited the said land through his own father.
Appellant’s counsel furthermore, submitted that since the respondent’s claim was not established, all the alleged acts of possession and ownership by him amounted to trespass. He relied on Lawal Oluwofowobi (1996) 10 NWLR (pt. 477) 177 and that the respondent ought not to have been awarded N50,000.00 as general damages by the learned trial judge.
Arguing issue 2, appellant’s counsel submitted that the PW2 gave two competing pieces of evidence when he testified to the fact firstly that his grandmother gave him the land and in another breadth, that the land was allocated to him by Owanta Idumuetor Community, the learned trial judge could not have picked and chosen which of the version to believe and accept, but dismiss the respondent’s claim. He relied on Edokpolor v. Asemota (1994) 7 NWLR (pt. 356) 314; Ohaeri v. Akabeze (1992) 2 NWLR (pt. 221) 1 at 19; Sowemimo V. The State (2004) Vol. 118 LRCN 4141 at 4152.
Learned counsel to the respondent, arguing his issue one, submitted that the respondent established by evidence that he obtained title to the land in dispute through the Pw2 who was earlier granted the said land by the Owanta community under their native law and custom. And that while Azagba Isoko (nee Gboneme) was farming on the land, there was no need to draw the attention of Owanta Idumuetor, however the moment title to the land was going to be involved, the event of passing of title from PW2’s grandmother to him had to be taken to the Owanta Idumuetor Community. Furthermore, he submitted that the parties are agreed that the land in dispute originally belonged to the Owanta Idumuetor Community and that the respondent discharged the onus placed upon him to the effect that the said land was allocated to him by the Owanta Idumumetor Community and was bound to succeed in his claim. He relied on Famuroti V. Agbeke (1991) 5 NWLR (pt. 189) 1.
Learned counsel, also submitted that there is evidence by the appellant and his witnesses that the allocation of Owanta Communal land which had unsigned allocation papers was invalid. Therefore, the alleged allocation of the land in question to Memeh Okocha in 1965, without authenticated/signed registration papers by the Okpara-Uku, is void. He relied on Gaji v. Paye (2003) 8 NWLR (pt. 823) 583.
Arguing his issue two, respondent’s counsel submitted that the respondent bought the land in dispute from PW1 who had first bought the said land from the PW2 – who was allocated the land by Owanta Idumuetor Community, the original owners of Boji-Boji Owa. He referred to paragraph 9(a) & (b) of the further amended statement of claim by the respondent to the effect that PW2’s grandmother was exercising user right over the land in question and she passed the same right to her grandson, PW2 who was subsequently formally allocated the said land by the Owanta Idumuetor Community. He referred to the pieces of evidence particularly by the PW3, with respect to the allocation of the land to PW2 by the Owanta Idumuetor Community.
With respect to the appellant’s claim of the same land, through inheritance from his grandfather who was allegedly allocated the land in 1965 by the Owanta Idumuetor Community, respondent’s counsel submitted that the pieces of evidence led by the DW2, DW3 and DW4 to that effect were not credible. And that this is moreso, with the admission by the appellant and his witnesses that it is the custom of the Owanta Idumuetor that all land allocation documents will be signed by the Okpara-Uku and that an unsigned allocation or registration document is invalid and that the missing link in the alleged allocation of the land to the appellant was that the allocation or registration of the land to him, was unsigned. He insisted that the respondent proved his root of title and rightly succeeded in his claim. He relied on Famuroti v. Agbeke (supra); Anyaoke v. Adi (1986) 2 NWLR (pt. 31) 731 at 748; Olusunde v. Oladele (1991) 4 NWLR (Pt. 185) 713 at 731 -732.
The parties in this appeal are agreed as to the fact that the radical title to all parcels of land in the vast area known as Boji-Boji Owa is vested in Owanta Idumuetor Community.
The respondent at paragraphs 4, 5a, 5b and 6 of the Further Amended Statement of Claim averred inter alia:
“4. The plaintiff avers that he is the owner of the said land in dispute having it by purchase from Mrs. M.C. Ojeh who got the piece of land from Samuel Okwunwa of Owanta Idumuetor who became seized of the said land by a gift from his maternal Grandmother and later by allocation from Owanta Idumuetor community under native laws and customs. The radical title to all parcels of land in the vast area known as Boji Boji Owa is vested in Owanta Idumuetor community. The purchase receipts issued to the Plaintiffs by Mrs. M.C. Ojeh and the one issued to Mrs. Ojeh by Samuel Okwunwa shall be relied upon at the trial of this suit. Chief Okwunwa’s grandmother got the land by a gift from her late husband, a native of Owanta.
5a. The Plaintiff further avers that Boji Boji Owa is an integral part of Owanta community and therefore acquisition is usually in accordance with native and custom of Owanta Idumuetor. In Owanta Idumuetor Community land may be acquired by purchase, allocation, gift etc, from the chief and Elders of the community through Owanta Land Allocation Committee, which operates in its land office at Hausa Street, Boji Boji Owa. One of the modes of acquiring land in Owanta is that where a person particularly an indigene deforests and farms on a piece of land in Owanta, he may apply to the community to regularize his title by allocation. In that case, the community, shares the land into two parts, takes a part and registers the remaining portion for the applicant and issues him with a plot allocation documents. In some cases, the applicant may be asked to pay kola fee to the community and retain the entire land. In either case, the Okpara-Uku of Owanta and chiefs and Elders must sign the allocation document. Any registration/allocation document in respect of any piece of land that is not signed by Okpara-Uku is null and void abinitio.
5b. After the gift of the vast area of land was made to Samuel Okwunwa by his maternal grandmother, and upon taking possession of the land, he applied to Owanta Community for regularization of his title. The Community took a part of his land and registered the remaining portion for his (sic) (him) in accordance with the custom of Owanta Idumuetor.
6. The plaintiff avers that upon acquisition of the land in Owanta, Such land must be registered with the Owanta land office on payment of a token fee. The essence is to give the land priority over anybody other subsequent transaction on the land without notice. The Plaintiff further avers that the transaction enumerated above were all registered with the Owanta Land Office and Plot Allocation documents were issued to Chief Okwunwa, Mrs. Ojeh and the Plaintiff respectively. All the registration documents shall be relied upon at the trial of this suit.”
Flowing from the above averments, it is crystal clear that the respondent predicated his root of title by purchase of the land in dispute from one Mrs. M.C. Ojeh who had earlier purchased the same land from Samuel Okwunwa of Owanta Idumuetor who also got the said land from his maternal grandmother as a gift and the same land was later allocated to Samuel Okwunwa by Owanta Idumuetor Community under their native law and custom. Furthermore, that the grandmother of Samuel Okwunwa got the said land as a gift from her late husband, a native of Owanta.
Now, how did the husband of Samuel Okwunwa’s grandmother acquire or become the owner of the parcel of land he gave as a gift to the wife that is, Samuel Okwunwa’s grandmother?
In a declaration of title to land, the party, such as a plaintiff, who traces his root of title to a particular person or family, must of necessity plead and establish the latter’s root as well, unless it is admitted by the opposing party. See Godfrey Anukam V. Felix Anukam (2008) 2 SCNJ 62.
Thus, in a situation such as it is herein, where the respondent pleaded and traced his root of title to a particular source, that is, the husband to the grandmother of Samuel Okwunwa and the same having been challenged by the appellant as the defendant at the trial in the court below, the respondent had a burden duty, in order to succeed in his claim, not only to establish his title to the land in question, he must also satisfy the court as to the title of the source from whom he traced his title. In other words, he had the duty to plead and demonstrate by hard evidence how the land was founded or first acquired by the original settler before and through whom it devolved on him, such as the respondent herein. See S.O. Adole V. Boniface Gwar (2008) 4 SCNJ 1; Ephraim Okoli Dim V. Isaac Enemuo (2009) 4 SCNJ 199; Benjamin Iroagbara V. David Ufomadu (2009) 6 SCNJ 183.
The respondent testifying as plaintiff at page 61 of the record of appeal, indeed said:
“My brother, Moses, bought this land from Mrs. M.C. Ojeh (PW1) in 1987. I was present when he bought the land. Before my brother bought the land, I investigated and I found out that the land belonged to Chief Samuel Okwunwa (PW2). He inherited the land from his maternal grandmother. The grandmother got the land from her late husband.”
The recurring question again, is how did the late husband of PW2’s grandmother, come about the land in question? How did he acquire or inherit or found the said land which he later gave as a gift to his wife, the PW2’s grandmother? It is the proof of the fact of how the late husband of PW2’s mother founded and/or acquired the land in question that is foundational to the grandmother of PW2’s root of title and PW2’s root of title through Mrs. M.C. Ojeh (PW1) to the respondent’s root of title. Hence, where the foundational root of title is sandy, any other root of title erected on it, must per force by waves and torrents against it crumble and collapse, like a pack of cards!
I am of the considered and firm opinion that the respondent’s root of title traced to the late husband of the PW2’s grandmother was fluffy and unproved which was enough to dismiss his claim.
Nevertheless, the learned trial judge had held that:
“Even if the grandmother of the PW2 was not allocated the land originally by the Owanta Community, the PW2 who approached the community was allocated the land in dispute.”
I have considered the submission of appellant’s counsel to the effect that the Owanta Community having divested herself of ownership and title to the land in dispute in 1965 when she allocated it to Chief Okocha Meme, the appellant’s grandfather, so the said Owanta Community had nothing left in respect of the same land which was allocated to the PW2 in 1977. Therefore, the PW2 also had no land to sell to the respondent.
It is amazing that as fundamental and crucial as the submission of appellant’s counsel is to the consideration and determination of this appeal, the respondent’s counsel, in his brief of argument, glossed over it. He did not address or respond to it at all. To my mind, the appellant’s counsel clearly raised the issue/doctrine of the creation of estates and their priorities. There is evidence that the appellant’s grandfather Chief Okocha Mene was in 1965, allocated the land in dispute, by the Owanta Community vide Exhibit “J”.
There is also evidence that Bernard Ukagu Okocha – the appellant’s father in 1981 vide Exhibit “J”, got the same land which he had inherited from his father Chief Okocha Meme, registered by the Owanta Community. There is then the evidence by the appellant that he inherited the same land from his father Ukagu Okocha and which he (appellant) registered with the Owanta Community in 1987 vide Exhibit “K”.
On the other hand, there is evidence at the instance of the respondent that the land in dispute was allocated to Samuel Okwunwa by the Owanta Community in 1977 vide Exhibit “F”. In the circumstances, there are two competing claims to the land in dispute, as evidenced by the documentary exhibits aforementioned.
Undisputably, Exhibit “J” which was issued to Okocha Meme in respect of the land in dispute was made on 16th February, 1965. It has on it, the thumb impressions of the Senior Okpara Owanta-Uku; Senior Chief of Owanta and the signature of the office clerk on the official stamp of Owanta Land office, Boji-Boji, Owa.
Exhibit “J1” – the plot registration in favour of Bernard Ukagu Okocha was made on 9th June, 1981. It has on it, the thumb impressions/signatures of; the Chairman of Owanta Community; Chief Inspector of plots; the Holder of the plot; Okpara of Owanta and the signature of the issuing and receiving clerk on the official stamp of Owanta Land Office, Boji-Boji Owa.
Exhibit “K” Plot Registration issued to Raphael Okocha was dated 11th June, 1987. It has on it the thumb impressions/signatures of: the Chairman of Owanta Community; Chief Inspector of Plots, the Holder of the plot; Okpara of Owanta and the signature of the issuing and receiving clerk on the official stamp of Owanta Land Office, Boji-Boji, Owa.
Exhibit “F” – Plot Allocation Form, issued to Samuel Okwunwa was dated 10th May, 1977. It has on it, the thumb impressions/signatures of Okpara of Owanta Okwe; Okpara of Aledie; Okpara of Aliosimi; Elder Elijah Ukwute and Elder Ikobor Onah – all on behalf of Owanta Community.
It is noteworthy that whereas Exhibit “J” made in 1965 was said to be “Allocated by Elders and Chiefs of Owanta”. Exhibits “J1”, “K” and “F”, which were each made later in time in respect of the land in dispute, were “signed on behalf of Owanta Community”. Furthermore, whilst Exhibits “J”, “J1” and “k” each has on it, the official stamp of Owanta Land Office, Boji-Boji, Owa; Exhibit “F” does not have the said official stamp on it.
Flowing from the above it is undeniable that Exhibit “J” made in favour of Okocha Meme in 1965 was made first in time before Exhibits “F”, “J” and “K”, made in 1977; 1981 and 1987 respectively.
Indeed, the law is well settled and firmly established and beyond reproach that where two persons, lay claim of title to a parcel of land, allegedly allocated to them by a common grantor, the first in time clearly takes priority, because it is stronger in law. Therefore, at law and also in equity, the doctrine is that estates and interests created thereon primarily rank in the order of their creation. So he who is earlier or first in time, is stronger in equity.
That is the rationale for the maxim; qui prior est tempore est jure. See: Ayanwale V. Odusanmi (2010) 12 SCNJ 362; Ero V. Tinubu (2012) 8 NWLR (pt. 1301) 104 (CA); IBBI Ltd. v. Mutunci Co. Nig. Ltd. (2012) 6 NWLR (pt. 1297) 487 at 524 (CA); Ugbo v. Aburime (1994) 8 NWLR (pt. 360) 1 (SC); Michael Romaine V. Christopher Romaine (1992) 2 SCNJ 25; Okelola V. Adeleke (2004) 7 SCNJ 103 at 111.I am therefore of the considered and firm opinion that Exhibit “J” made in favour of Okocha Meme, the appellant’s grandfather, in 1965 with respect to the land in dispute clearly took the wind out of the sail of the respondent’s root of title Exhibit “F” which was created later in 1977 in favour of Samuel Okwunwa (PW2), with respect to the same land in dispute. In other words, since Exhibit “J” was made earlier in time, it is stronger in law and in equity than Exhibit “F” which was made later in time. Thus, Exhibit “J” clearly extinguished any estate or interest created by Exhibit “F”, such that any claim anchored on Exhibit “F” amounted to putting something on nothing – indeed a futile claim!
In short, the respondent’s claim deserved a dismissal at the court below, but since that was not done there, that claim cannot go beyond here.
I am satisfied that the two issues in this appeal be and they are each resolved in favour of the appellant, hence the appeal is allowed.
The appellant’s counter-claim clearly succeeded upon a preponderance of evidence. It is unarguable that the actions of the respondent on the land in dispute were presumptuous and preposterous. They each amounted to acts of trespass. The sum of N200,000.00 only is awarded to the appellant as general damages, against the respondent for trespass.
The judgment in the suit No. HCY/25/2003 by the Delta State High Court, holden at Owa-Oyibu delivered on 29th November, 2007 is hereby set aside.
Costs of N50, 000.00 is awarded to the appellant, against the respondent.
SIDI DAUDA BAGE J.C.A: I read in draft the erudite Judgment of my learned brother T.S. Yakubu (JCA), and I am in complete agreement with him.
The appeal is meritorious, and is also allowed by me. I abide by the consequential orders contained in the lead Judgment, including the order as to costs.
AYOBODE O. LOKULO-SODIPE J.C.A: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
I agree that the appeal is meritorious and it is hereby allowed in the same manner as set out in the lead judgment. Furthermore, I abide by the order relating to costs, as made in the lead judgment.
Appearances
Prince Nwadozie Okonta, Esq.For Appellant
AND
V.N. Adaikpoh, Esq.For Respondent
