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UDOK v. UDOEKONG (2020)

UDOK v. UDOEKONG

(2020)LCN/15695(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/C/369/2014

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

HammaAkawuBarka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

 

Between

  1. EMMANUEL UDOK (For Himself And On Behalf Of The NungAdiaAbasi Family In ItiamEtoi Village, Uyo Local Government Area) APPELANT(S)

And

MRS HELEN ENO UDOEKONG RESPONDENT(S)

 

RATIO

THE EXCLUSIVITY OF CERTIFICATE OF OCCUPANCY AND THE STATUTORY RIGHT OF OCCUPANCY

In the instant case, the only root of title upon which the appellant based his claim is that the accompanying documents to the certificate of occupancy recognizes the customary owners and thus did not confer exclusive possession to Col. Dr. EkongUdok. A statutory right of occupancy deemed to have been granted by the Governor of a State pursuant to Section 34 (2) of the Land Use Act, 1978 is also valid and therefore the question that the property in dispute existed since 1962 is not tenable. A person who is granted a certificate over a parcel of land is entitled to hold it to the exclusion of any other person unless and until the certificate of occupancy is for good reasons revoked by the same authority that granted it or the grant is found to be void and set aside by a Court of law. See GANKON V. UGOCHUKWU CHEMICAL IND. LTD (1993) 6NWLR (prt 297) 55.

EXAMINING PRELIMINARY OBJECTION TO ENSURE THERE IS NO DEFECTIVE APPEAL

It is pertinent to state here that arguing a preliminary objection in the respondent’s brief has become an accepted practice. It obviates the need to file a separate notice of preliminary objection. When the respondent argues his preliminary objection in the respondent’s brief the appellant is expected to respond by filing a reply brief. Where the appellant fails to file a reply, the preliminary objection is deemed conceded by the Court. That notwithstanding, the Court should still examine the preliminary objection to ensure that it does not hear an incompetent or fundamentally defective appeal. See AJIDE V. KELANI (1985)3 NWLR (prt 12) 248, MAIGORO V. GARBA (1999)10 NWLR (prt 624) 555 and ONAH V. SCHLUMBERGER (NIG) LTD (2018) 17 NWLR (prt 1647) 84 at 95.

EXAMINING THE COMPETENCY OF AN APPEAL
I have elsewhere in this judgment stated that the respondent has challenged the competence of the appeal and that the appellant failed to file a reply which ordinarily means that the preliminary objection is deemed conceded. There is still a duty for this Court to examine the said preliminary objection as to determine its potency in relation to this appeal, to avoid embarking an exercise in futility.

THE SUBJECT MATTER MUST HAVE A COMMON INTEREST

The jurisprudential postulate underlying suits in representative capacity is that the person or persons suing or defending in a representative capacity must have the same interest in the proceeding. This means that the parties on record and those they represent must have common interest. In other words, the subject matter must evince a common interest as opposed to diverse interest, common grievance and the reliefs must in their nature be beneficial to all the representatives and those represented. Thus, similarities of interests would not suffice in the absence of a communality of interest. See IGHEDO V. P.H.C.N PLC (2018) 9 NWLR (prt 1623) 51 at 81 – 83, UKPONG V. COMMISSIONER FOR FINANCE & ECONOMIC DEVELOPMENT (2006) 19 NWLR (prt 1013) 187 and ADEDIRAN V. INTERLAND TRANSPORT LTD (1991)9 NWLR (prt 214) 155

THE DISCHARGE OF THE BURDEN OF PROOF AND C0UNTER CLAIM AS AN INDEPENDENT ACTION

A counter claim is a cross-action and where the plaintiff fails in proving his claim, the defendant on proving his counter-claim may succeed. Whether in respect of the claim or the counter claim, therefore, the plaintiff or the defendant as the case may be must discharge the burden of establishing his entitlement to the reliefs he claims. See KYARI V. ALKALI also reported in (2001)11 NWLR (prt 724) 412, UDEZE V. CHIDEBE (1990)1 NWLR (prt 125) 141 and AKINBADE V. BABATUNDE (2018)7 NWLR (prt 1618) 366 at 388. In AFRICAN SONGS LTD V. ZADEGEYE (2019) 2 NWLR (prt 1656) 335 at 344, this Court restated the already settled law that a counter-claim is an independent and separate action of its own although it is usually an offshoot of the main claim. Thus, the success or failure of the main action does not necessarily translate to the success or failure of the counter-claim. Perhaps, it needs to be stressed that the respondent has maintained that the appellant is not the child of the assignor and has no legal right or interest to protect in the said property. The question of the appellant been sued in a representative capacitydoes not even arise as regards the counter-claim. The appellant’s lack of locus standi is confined and limited to suing in a representative capacity and no more. The failure of the main action does not translate to the success or failure of the counter-claim. The first issue is therefore resolved against the appellant.

PRESUMPTION OF CERTICATE OF OCCUPANCY HOLDER

A certificate of occupancy properly issued to a holder presupposes that the holder is the owner in exclusive possession of the land it relates to. The certificate also raises the rebuttable presumption that at the time of its issuance there was notin existence a customary owner whose title has not been revoked. See Sections 14 and 15 of the Land Use Act, 1978 and the cases of G. C. M. LTD V. TRAVELLERS PALACE HOTEL (2019)6 NWLR (prt 1669) 507 at 542, EZEANAH V. ATTA (2004)7 NWLR (prt 873) 468, MADU V. MADU (supra) and KOLO V. LAWAN (2018)13 NWLR (prt 1637) 495 at 516

 

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom High Court, sitting at Uyo, delivered by Honourable Justice Pius Idiong delivered on 20th December, 2013, dismissing the plaintiff’s claim and allowing the counter-claim of the respondent herein.

The appellant as plaintiff at the Court below took out a writ of summons and statement of claim respectively filed on 4th September, 2009 and 17th September, 2009. In paragraph 14 of the statement of claim, the appellant as plaintiff claimed from the defendant/respondent as follows:-
14. By reason of the premised the plaintiff is aggrieved and claims from the defendant the following;
​(1) A declaration that the purported sale of the property lying being and situate at No1/3 Wellington Bassey Way, Uyo by late Col. (Rtd) Dr. Ekong Thomas Udok to the defendant which is covered by a Deed of Assignment Registered as No. 18 at page 18 in Vol. 281 of the Land Registry, Uyo, Akwa Ibom State is null and void being family property which said SALE was done without the knowledge and consent of the members of the family of NungAdiaAbasi.
(2) Perpetual injunction restraining the defendant, her agents, privies and servants, from further interfering with the said property inconsistent with the rights of the plaintiff.

​Upon being served with the originating processes, the defendant filed a defence and counter-claimed in paragraph 7 of the counter-claim thus:-
7. WHEREFORE the defendant by way of counter claims against the plaintiff as follows:-
(1) A declaration that the defendant is the lawful owner of the property situate and lying at No 1/3 Wellington Bassey Way, Uyo having acquired same by virtue of the Deed of Assignment from Col. (Rtd) Dr. EkongUdok.
(2) A declaration that the plaintiff or any of his cohorts have no legal right in the said property same not being a family property.
(3) A declaration that the plaintiff is liable for trespass into the property.
(4) N135,000 special damages being rents collected in the year 2009 and the cost of painting out the inscriptions “THIS HOUSE IS NOT FOR SALE” written by the plaintiff around the building.
(5) N100 million general damages for the unquestionable injuries caused thedefendant by the plaintiff’s act of trespass since July 2009 and continuing which has disrupted the defendant’s peaceful enjoyment of the property.
(6) An order of perpetual injunction restraining the plaintiff by himself, associates, agents, assigns, legal representatives or howsoever from further trespassing into or continuing with trespass on the property or in any manner whatsoever disturbing the defendant’s peaceful and lawful enjoyment of the property.

Pleadings were filed and exchanged and the matter went into trial whereby witnesses were called and exhibits tendered. At the end of the trial and in a reserved and considered judgment delivered on 20th December, 2013, learned trial judge dismissed the plaintiff’s claim but granted the reliefs in the counter-claims.

Being dissatisfied, appellant filed this appeal through a notice of appeal filed on 23rd December, 2013. Appellant’s initial notice of appeal contains an omnibus ground but by leave of Court granted on 17th April, 2018 appellant amended his notice of appeal. The said amended notice of appeal contains four (4) grounds of appeal.At the hearing of this appeal on 2nd June, 2020, the respondent’s counsel UtibeNwoko, Esq. adopted and relied on the respondent’s brief filed on 7th May, 2019 but deemed as properly filed on 8th May, 2019. This Court having been satisfied that the appellant was served with the hearing notice through counsel on 20th May, 2020 deemed the appellant’s brief of argument filed on 6th March, 2018 pursuant to the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.

The appellant’s brief of argument settled by EkeminiabasiEgbadhen, Esq. raised the following three issues for determination.
1. Whether the learned trial judge was right when he held that the appellant sued in an incompetent representative capacity but having dismissed the appellant’s claim assumed jurisdiction over the counter-claim of the respondent and made a declaration of title, in favour of the respondent and a perpetual injunction when the proper parties were not before him. (Distilled from ground 1).
2. Whether the learned trial judge was right in holding that the grant of letters of Administration to EdemUdok and Col. (Rtd) EkongUdok over a familyproperty created a joint tenancy and upon the death of EdemUdok, Col. (Rtd) EkongUdok became the sole owner by operation of common law doctrine of survivorship thus having the right to alienate the property. (Distilled from grounds 2 and 4).
3. Whether the learned trial judge was right in holding that the Certificate of Occupancy granted to Col. (Rtd) Dr. Ekong based on the letters of Administration and Affidavit of death of EdemUdok was his exclusive property to have transferred same to the respondent when the deemed right of occupancy in the name of the family of late Chief Thomas Udok by virtue of Section 34 (2) of the Land Use Act was not expressly revoked. (Distilled from ground 3).

The respondent adopts the three issues formulated by the appellant. The respondent however raised a preliminary objection to the hearing of this appeal on the following grounds:-
1. Contrary to the mandatory requirement of the provisions of Section 241 (1) (b) Constitution of the Federal Republic of Nigeria, 1999 (as amended), the appellants did not seek and obtain leave to file the notice of appeal and/or the amended notice of appeal on grounds of mixedlaw and fact.
2. Consequently, the original notice of appeal is incompetent having been filed without the mandatorily leave of Court.

It is pertinent to state here that arguing a preliminary objection in the respondent’s brief has become an accepted practice. It obviates the need to file a separate notice of preliminary objection. When the respondent argues his preliminary objection in the respondent’s brief the appellant is expected to respond by filing a reply brief. Where the appellant fails to file a reply, the preliminary objection is deemed conceded by the Court. That notwithstanding, the Court should still examine the preliminary objection to ensure that it does not hear an incompetent or fundamentally defective appeal. See AJIDE V. KELANI (1985)3 NWLR (prt 12) 248, MAIGORO V. GARBA (1999)10 NWLR (prt 624) 555 and ONAH V. SCHLUMBERGER (NIG) LTD (2018) 17 NWLR (prt 1647) 84 at 95.

In this case, the appellant did not file a reply in response to the preliminary objection and I shall in due course examine the said preliminary objection in order to determine the competence or otherwise of the appeal.

​Proffering argument on thefirst issue in the appeal, learned counsel for the appellant contend that the legal capacity of a party to institute or defend an action is very vital to the Court’s assuming jurisdiction over a matter and same should be determine at the earliest opportunity. That throughout the trial of the matter, the legal capacity of the appellant was neither raised by the respondent nor raise suomotu by the trial Court after taking evidence. He thus submits that the capacity of the appellant both as plaintiff and also defendant in the counter-claim was clearly in a representative capacity.

Still in argument, learned counsel submits that the appellant having sued in an incompetent representative capacity cannot also defend the counter-claim in an incompetent capacity. He referred to ORAGBAIDE V. ONITIJU (2011) 6 WRN 175 at 180 to the effect that representative actions are where there are numerous persons having the same interest in one cause or matter. Therefore, the lower Court having found that the members of NungAdiaAbasi and appellant had no common interest and the appellant was not representing the family of Late Chief Thomas Udok, it then follows thatthe appellant could not have defended the counter claim of the respondent. The end result according to the learned counsel is that since the appellant’s suit was dismissed on ground of lack of locus standi; the judgment in favour of the respondent must also be set aside relying on ORAGBAIDE V. ONITIJU (supra).

On the second issue, learned counsel contend that the property in dispute was owned by late Chief Thomas Udok and had not been partitioned to the appropriate branches and that late Col. (Rtd.) Dr. EkongUdok who became the sole administrator upon the death of EdemUdok was to administer the estate on behalf of the beneficiaries of the estate who were the plaintiff and other grand children and therefore the property could not be alienated without the consultation of these beneficiaries. He submits that an administrator of an estate is not the owner of the property at any time and does not cease to be so until all the assets (real property) has been distributed to and all liabilities paid. He referred to Section 1(2) and 2 of the Administration (Real Estate) Law, Cap. 3 Vol. 1 Laws of Akwa Ibom State which provides that an administrator cannottouch a property which disposition must be in accordance with the provisions of Customary Law even if there is a will except where it is disposed with the consent of the family of the deceased. Thus, the conclusion of the lower Court to the effect that late Col. Dr. EkongUdok became the sole owner of the property by operation of doctrine of survivorship and had the right to alienate the property in the manner he did was erroneous in law.

On the third issue, learned counsel submits that the presumption that a holder of a certificate of occupancy is presume to be in exclusive possession of the land does not apply to the instant case, reason being that the certificate was issued with a survey plan still in the name of Late Chief Thomas Udok as the title of the Customary Owner has not being revoked under Section 34 (2) of the Land Use Act.

​He submits further that the lower Court had a duty to draw inferences from the documents accompanying the certificate apart from the survey plan to which the certificate relates without any evidence from the Grantor as to why those documents were attached and hold that the customary right of the family of late ChiefThomas Udok had not been revoked. He referred to KYARI V. ALKALI (2001) 87 LRCN 2096 at 2103 to contend that when the deemed grant of statutory right of occupancy is subsisting, no actual grant of statutory right of occupancy can be validly or lawfully granted by the State Governor.

In response to the first issue, learned counsel for the respondent submits that it is only when a set of people, have the same interest, that one can sue on their behalf as representing them.

Continuing, he submits that NungAdiaAbasi had no interest in the personal property of the late Chief Thomas Udok and therefore the appellant reserved no locus standi to sue in representative capacity of the NungAdiaAbasi family.

​On the appellant’s contention that since the lower Court held that the appellant had no capacity to sue as representing the NungAdiaAbasi Family, the counter claim of the respondent must also be dismissed, learned counsel submits that the failure of the representative action, entitles the respondent to ventilate her action against the appellant personally because a counter claim is a separate and independent action. He referred to OGLIOKO  MEMORIAL FARMS LTD & ORS V. H.A. & C. B. & ANOR (2000) HSC 95. He contend further that the respondent in her pleadings had clearly stated that the appellant’s suit be dismissed for lack of jurisdiction. He thus submits that the lower Court relied on the evidence based on the pleading’s of the parties in coming to the conclusion that the appellant did not have the capacity to represent the family who had no interest in the demised property.

​As regard to the second issue, learned counsel contend that the subject matter of which this appeal is fought was the property owned by the father of the respondent’s assignor. The assignor of the respondent was the only surviving son of the original owner of the property and holder of a certificate of occupancy in respect of the property. During the life time of the respondent’s assignor, the appellant did not challenge the ownership of the property but waited till his death before commencing this suit. Worst still, the appellant has not even joined the children of respondent’s assignor but claimed against the respondent. He therefore submits that since the letter ofadministration in respect of the property was issued to late EdemUdok and Col. Dr. Udok, the law is that upon the death of late EdemUdok, the power contained in the letter of administration devolved on the other holder of the letter of administration as the property in issue was not partitioned, the two brothers and on the death of the other brother, the property vest on the surviving brother without more.

Still in contention, learned counsel argued that the title of the respondent’s assignor was rooted in common law doctrine of survivorship. The doctrine according to the learned counsel is that where two people become joint owners of a property and the property is not shared between them before one of them dies, the whole property becomes the property of the surviving joint owner. The legal representatives of the deceased joint owner cannot claim it. In aid, he relied on the authority in the case of CHINWEZE V. MASI (1989) 1 NWLR (prt 97) 254 at 296.

In further contention, learned counsel argued that the appellant not been a son but a grandson of Chief Thomas Udok, is therefore a stranger to the property and lacks the locus standi to sue onit. He submits that all the children of Chief Thomas Udok had only life interest in the estate since it was not partitioned. And it is only the last surviving child that enjoyed the residual interest as such the appellant is a stranger to the property without locus standi to sue on it also relying on CHINWEZE V. MASI (supra).

Finally on the appellant’s contention that himself and some grand children of the late Chief Thomas Udok lived in the property in dispute until he and others went out to find larger apartments, it was submitted that the fact that their uncle EkongUdok allowed them to live there does not operate as an estoppel against their said uncle or the respondent and cannot vest the title or interest in them.

​On the third issue, learned counsel drew this Court’s attention to the fact that the letter of Administration issued to EdemUdok and Ekong as joint administrators was issued to them as “Sons of the said deceased” and thus there was no cause or contest of it suggesting that they were to administer the estate for the benefit of anyone else apart from themselves. Secondly, the certificate of occupancy granted toCol. Dr. EkongUdok contained no clause that he was holding it in trust for the family or any other person apart from himself. He submits that the appellant cannot claim interest in the property without adducing credible evidence to rebut the presumption inherent in the certificate of occupancy. He referred to EZEANAH V. ATTA (2004) 7 NWLR (prt 873) 468 at 512 to the effect that the certificate of occupancy held by the respondent’s assignor and which the respondent’s title is rooted raises a strong presumption of ownership in favour of the respondent.

I have elsewhere in this judgment stated that the respondent has challenged the competence of the appeal and that the appellant failed to file a reply which ordinarily means that the preliminary objection is deemed conceded. There is still a duty for this Court to examine the said preliminary objection as to determine its potency in relation to this appeal, to avoid embarking an exercise in futility.

​Arguing the preliminary objection, learned respondent’s counsel contend that the appellant’s grouse against the lower Court’s decision as contained in grounds 1 – 4 of theamended notice of appeal are basically on evaluation of evidence which in effect is a ground of mixed law and facts requiring leave of Court before an appeal can validly be made.

In determining the nature of a ground of appeal, the ground and its particulars must be read together. For it is only by reading the ground as a whole that it can be determined what the appellant is complaining about in the judgment. The body of the ground is not to be considered in isolation of its particulars. See ORAKOSIM V. MENKITI (2001) 5 S.C. (prt 1) 72 at 81.

I now set out the grounds of appeal and they read thus:
“Ground one: error in law
The learned trial judge erred in law when he held that the plaintiff was not prosecuting the case in a representative capacity as NungAdiaAbasi Family did not have the power to sue which they delegated to the plaintiff but went on to grant a declaration of title to the defendant/counter claimant and a perpetual injunction against the plaintiff on record when they were not the proper defendant to the counter claim:
“Accordingly, the said family cannot be represented by the plaintiff in this suit. As amatter of fact, the case made out by the plaintiff in this case is at variance with the said capacity of the plaintiff … What that means in my humble view, is that plaintiff is not prosecuting the case in a representative capacity… it is the view of this Court that the NungAdiaAbasi Family did not have the power to sue which they purported to delegate to the plaintiff to sue on their behalf in this case…”
And at page 49 said:
“… Accordingly, judgment is entered for the defendant on her counter claim and pursuant thereto, it is hereby declared that the defendant is the lawful owner in possession of the property lying and situate at No. 1/3 Wellington Bassey Way Uyo…”
PARTICULARS OF ERROR
1. The plaintiff commenced action for himself and on behalf of the NungAdiaAbasi Family in ItiamEtoi village, Uyo Local Government Area.
2. The plaintiff stated that he is the most senior surviving grandchild of the family of late Chief Thomas Udok and now the head of that family.
3. The plaintiff stated that he and some members of that family are still in possession of some rooms in theproperty in dispute allotted to them. The plaintiff and witnesses gave evidence that the property belongs to the family of late Chief Thomas Udok.
4. The defendant filed defence and a counter claim.
5. The trial judge held that the counter claim is a separate action from the plaintiff action.
6. The learned trial judge held that the plaintiff commenced the action in an incompetent representative capacity and held that the plaintiff was not prosecuting the case in a representative capacity.
7. The trial judge did not call on parties to address him on the issue nor was the capacity amended.
8. The trial judge dismissed the plaintiff case but went on to enter judgment against plaintiff in the incompetent representative capacity as the defendant to the counter claim.
9. The law is that where a plaintiff action who sues in an incompetent representative capacity is dismissed the Court cannot make a declaration of title and order a perpetual injunction in a counter claim as the plaintiff was also defending in an incompetent representative capacity.
10. The law is also well settled that where the proper parties are not before theCourt, the Court lacks jurisdiction to entertain a matter and the counterclaim should have been struck out.
Ground Two: Error in Law
The learned trial judge erred in law when he held that the grant of letters of administration to EdemUdok and Col. (Dr.) EkongUdok created a joint tenancy, and upon the death of EdemUdok, Col. Dr. EkongUdok became the sole owner by operation of the common law doctrine of survivorship or jus accresendi relying on the case of CHINWEZE V. MASI (1989) NWLR (prt 97) 254 @ 296, 270 and 272.
The learned trial judge said at page 41 of the judgment:
“…Rather after the death of the last but one male child of the late Chief Thomas Udok, the property devolved on the late Dr. Ekong Thomas Udok not as trustee but as owner of the same… I also agree with the learned counsel to the defendant that the property also accrued to the said Dr. Ekong Thomas Udok by operation of the common law doctrine of survivorship or jus accresendi. See the case of CHINWEZE VS. MASI (1989) NWLR (prt 97) 254 at pages 296, 270 and 272”.
PARTICULARS OF ERROR
1. The law is well settled that on administrator isappointed by the Court to manage the property of a deceased person for the benefit of the beneficiaries until the liabilities are paid and the assets distributed.
2. Under the law, not less than two persons must be appointed to administer a real property as in the instant case.
3. An administrator need not be the owner of the property or have any interest in the property and his duties continues until the liabilities are paid and the assets distributed.
4. It is not in dispute that the property in dispute belonged to late Chief Thomas Udok.
5. It is not also in dispute that the said property became family property by devolution and, it devolved on the most senior member of late Chief Thomas Udok’s family from his death in 1962 to 1985 when the letters of Administration was granted to EdemUdok and Dr. EkongUdok as joint Administrators and the said property was not partitioned.
6. The evidence before the Court was that EdemUdok, Dr. EkongUdok and the late father of the plaintiff were all children of late Chief Thomas Udok from different mothers and thus the plaintiff is a member of the family unlike in the case of CHINWEZE V.  MASI (supra) relied upon by the Court where the appellants and the respondent were from one mother but different fathers.
7. The principle of joint ownership in the case of CHINWEZE V. MASI is therefore not applicable in the instant case.
8. Joint tenancy is created by the deed and not by letters of administration and contents of such a Deed determines the joint tenancy.
9. Co-owners or joint owners of a family property are not joint tenants or tenants – in common under the law and so Dr. EkongUdok could not have become the sole owner to apply the doctrine of survivorship in the instant case.
10. The letters of administration is governed by the applicable statute and not common law.
Ground Three: Misdirection
The learned trial judge misconceived the law and the facts when he held that the Certificate of Occupancy granted to Col (Dr.) EkongUdok over the property still in the name of the late Chief Thomas Udok and upon the letters of Administration in the names of EdemUdok and Col. (Dr.) EkongUdok made Col Dr. EkongUdok the exclusive owner of the property.
The learned trial judge said at page 42 – 43<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“I think the law is that no oral evidence will be admitted to vary or contradict or alter the contents of a document before the Court… As a result, it is the view of this Court that the attempt by the plaintiff to introduce into the letters of administration and in particular the Certificate of Occupancy issued by the Governor of Akwa Ibom State to the defendants assignor in his personal name and capacity is therefore inadmissible… the law is settled that the holder of a certificate of occupancy holds the title to the property subject only to the terms and conditions stipulated in the Land Use Act which conditions are expressed in the instrument itself”.
PARTICULARS OF MISDIRECTION
1. The Survey plan of the property attached to the Certificate of Occupancy is still in the name of late Chief Thomas Udok who died in 1962 and not in the name of Col Dr. EkongUdok or jointly with the name of EdemUdok.
2. The letter of Administration in the names of EdemUdok and Col Dr. EkongUdok is also attached to the Certificate of Occupancy.
3. The condition that the Certificate of Occupancy was granted subject to subsistingrights is well stated in the instrument itself.
4. It was not shown that the deemed statutory right of occupancy granted by virtue of Section 34(2) of the Land Use Act to the family of late Chief Thomas Udok over the property which was developed before the commencement of the Land Use Act, 1978 had been revoked.
5. The plaintiff asserted that the late Col Dr. EkongUdok was authorized to apply for the Certificate of Occupancy over the property as a family property and the survey plan of the property has shown clearly the owner of the property.
6. The mere issuance of the Certificate of Occupancy does not and cannot confer title in respect of the property to Col Dr. EkongUdok as the deemed grant of Statutory Right of Occupancy vesting the property in the family of late Chief Thomas Udok had not been revoked.
Ground Four: Error in Law
The learned trial judge erred in law when he held that the Col Dr. EkongUdok had the right to alienate the property in the manner he did as the sole owner upon the death of the EdemUdok as the letters of Administration was not obtained on behalf of others as Trustees. The trial judge at page 42 of thejudgment said:
“The second arm of the first issue is whether the said defendant’s assignor had the right to alienate the property in the manner he did. I think the Court has largely answered the said question and the answer is in affirmative. It has been established that after the death of his joint owner, the property devolved on him not as trustee for others but as sole owner thereof. There is also no evidence before the Court that when late Dr. Ekong Thomas Udok and his late brother, Edem Thomas Udok obtained Letters of Administration over the said property, they did so on behalf of others.”
And at page 41 had said:
“Being therefore the sole owner and not a mere trustee thereof (the plaintiff having failed to prove the alleged relationship of trustee and beneficiaries) it is the view of this Court that the said late Dr. Ekong Thomas Udok from the death of his last surviving joint owner (Edem Thomas Udok) the defendant’s said assignor… had power to deal with and treat his property the way he deemed fit”.
PARTICULARS OF ERROR
1. An administrator appointed by the Court is not the owner of theproperty but only the person representative of the deceased person and the real estate of the deceased persons devolve from time to time on the personal representative who holds same in trust for the beneficiaries.
2. The law is well settled that it is only the legal estate over the deceased property that is vested on an administrator or personal representative.
3. An administrator can only transfer the legal estate vested on him in the capacity of an administrator even when such a person is the only surviving administrator as in the instant case.
4. It is not in dispute that the property in dispute was a family property which devolved from time to time until EdemUdok and Dr. EkongUdok were granted the letters of administration.
5. There was no evidence that late Dr. EkongUdok had distributed the assets which was entrusted to him as the sole surviving administrator to the beneficiaries and rendered an account or that there was any outstanding liabilities which required the disposal of the property in dispute after obtaining a Court order as required by law.
6. There was no evidence before the Court that the beneficiaries hadtransferred the property in dispute to him as a sole owner.
7. The evidence before the Court Exhibit 6 shows that Dr. EkongUdok transferred the property not in his capacity as an administrator vested with the legal estate but as sole and beneficial owner.
8. The said Dr. EkongUdok also conveyed the property to the respondent in his own name when there was no evidence that a grant was made to him other than the letters of Administration before the Statutory Right of Occupancy was issued based on the letters of Administration.
9. It was wrong in law Dr. EkongUdok to have treated the property as his own and alienate same in a capacity other than an administrator.

Where a ground reveals or questions the evaluation of facts by the Court before the application of the law, it is a ground of mixed law and facts. See CHIEF OF AIR STAFF V EDWARD (2019) 14 NWLR (prt 1691) 183 at 194.

Looking at grounds 1 – 4 above and their particulars, same questions the evaluation of facts by the lower Court and I therefore have no hesitation in coming to the conclusion that they are of mixed law and fact: such grounds are only competentwhen leave of Court is sought and obtained before they are filed. See Section 241 (1) (b) of the 1999 Constitution (as amended). As no such leave was sought and obtained prior to their filing, they are incompetent and are hereby struck out.

Notwithstanding the above findings, I shall nonetheless proceed to determine the merit of this appeal in order to give the apex Court the benefit of its views in the matter should there be the need to consider other issues not determined at this level. In IKPEKPE V WARRI REFINERY & PETROCHEMICAL COMPANY LTD (2018)17 NWLR (prt 1648) 280 EKO, JSC at page 297, paras E – G said:-
“The lower Court, having struck out the suit did not decide or resolve the question. They should have resolved it, in case they may be wrong as an intermediate Court on the issue of jurisdiction. The appeal before the lower Court was not an interlocutory appeal but an appeal against final decision. It therefore behooved the lower Court an intermediate Court, to resolve all the issues before it or express an opinion on the merits of the case.”

Before proceeding to determine the merits of this appeal,it is pertinent to state the facts of case as disclosed in the record of appeal albeit briefly. The property which the appellant claimed at the lower Court is situate at No.1/3 Wellington Bassey Way, Uyo originally belonged to one Chief Thomas Udok who died intestate in 1962. Upon the demise of late Chief Thomas Udok, the property devolved on to his male children. In 1985, the last two surviving male children namely Edem Thomas Udok and Ekong Thomas Udok obtained a letter of administration over their late father’s estate.

In 1987, Edem Thomas Udok died leaving Ekong Thomas Udok as surviving male child of his father and the sole beneficiary of the estate. In 1989, Ekong Thomas Udok, a retired Colonel applied for and obtained a certificate of Occupancy with number UY/147/89 dated 3rd December, 1989 and registered as No 80 at page 80 in volume 29 of the Registered Deeds in Uyo Lands Registry as the sole surviving beneficiary of the estate of his late father, his brother and co-administrator having died.

​Some times in the year 2006 Col. Dr. EkongUdok offered to assign the said property to his tenant on the said property for many years. The saidtenant who was a defendant at the lower Court conducted thorough search and accepted to take the assignment as a result of which Col. Dr. EkongUdok assigned the unexpired residue in his certificate of occupancy to the defendant for (N16,000.00) Sixteen Million Naira). The parties thereafter executed a Deed of Assignment on 28/1/2008 with Col Dr. (Rtd) EkongUdok as the Assignor and the defendant as the Assignee.

The appellant as plaintiff at the lower Court commenced a suit against the defendant now respondent for himself and in a representative capacity representing members of his family that is, NungAdiaAbasi in ItiamEtoi village. The lower Court dismissed his claims and granted the respondent’s counter claim.

On the first issue, the appellant questions the rationale of granting the counter claim by the lower Court which ruled that he is not representing the family on whose behalf he purports to be suing. The appellant’s contention is that since that family does not have interest in the property in dispute as a result the said family cannot sue, likewise; himself or the family could not defend the counter claim.

The jurisprudential postulate underlying suits in representative capacity is that the person or persons suing or defending in a representative capacity must have the same interest in the proceeding. This means that the parties on record and those they represent must have common interest. In other words, the subject matter must evince a common interest as opposed to diverse interest, common grievance and the reliefs must in their nature be beneficial to all the representatives and those represented. Thus, similarities of interests would not suffice in the absence of a communality of interest. See IGHEDO V. P.H.C.N PLC (2018) 9 NWLR (prt 1623) 51 at 81 – 83, UKPONG V. COMMISSIONER FOR FINANCE & ECONOMIC DEVELOPMENT (2006) 19 NWLR (prt 1013) 187 and ADEDIRAN V. INTERLAND TRANSPORT LTD (1991)9 NWLR (prt 214) 155.

The appellant’s contention is that, being the most senior grandchild, he was mandated by members of NungAdiaAbasi Family to commence the suit at the lower Court and averred in paragraphs 3 – 8 of the statement of claim at pages 82 – 84 of the record of appeal as follows:-
“3. The building at No. 1/3 Wellington BasseyWay, Uyo belonged to the plaintiff’s grandfather Chief Thomas UdokUdofiaUmoren of NungAdiaAbasi family in ItimaEtoi village, Uyo Local Government Area of Akwa Ibom State. The late Chief Thomas died intestate in 1962.
4. After his death, it was agreed by his sons that their father’s estate aforementioned should be held in trust from generation to generation in the family and should never be sold or mortgaged.
5. That this was because of the history of the building being the first storey building in the heart of Uyo and was built between 1920 to 1928. It preceded the development of the Ibibio land and was used as the Pioneer Secretariat of the Ibibio Union. The 1st Barclays Bank in this region started their banking business there. The building remained a recognized historical, political, economical and national monument of great historical significance.
6. The late Chief Thomas UdokUdofiaUmoren had ten children, six males and four females. Nine of these children got married and had children too. The names of these children were:
(1) Late Mr. Ime Thomas Udok
(2) Late Mr. Udo Thomas Udok
(3) Late Mr. Emah ThomasUdok
(4) Late Mr. Emmanuel Thomas udok
(5) Late Mr. Edem Thomas Udok
(6) Late Col. Dr. Ekong Thomas Udok
(7) Late Mrs. Nancy Ekong (Nee Udok)
(8) Late Mrs. Affiong Benson (Nee Udok)
(9) Late Mrs. Alice Effiong Edet (Nee Udok)
(10) Late Miss Nse Thomas Udok.
His grandchildren were:
1. Mr. Emmanuel EmahUdok (The plaintiff and most senior grandchild. He is the son of the 3rd son)
2. Engr. UmorenImehUdok
3. Victoria ImeUdok
4. Mrs. Emilia Amaka (Are children of the 1st son)
5. Amos ImehUdok
6. UduakImeUdok
7. Mercy S. Udofia (Daughter of the 3rd son)
8. KufreEdemUdok
9. Augusta EdemUdok (Are children of the 4th son)
10. Samuel EdemUdok
11.Barr. Uwem Emmanuel Udok
12. Enefiok Emmanuel Udok (Children of the 5th son)
13. Godwin Emmanuel Udok
14. Victor Emmanuel Udok
15. Engr. AniekanEkongUdok
16. UwemEkongUdok (Children of the 6th son)
17. Engr. UduakEkongUdok
18. Mrs. Anne Domines
The second son of Chief Thomas Udok (late) had no issue. The children of the female children had no interest in the property inaccordance to the Native and custom of the Ibibio. They had been married out.
7. The 6th son of Chief Thomas Udok (Late), col. (Rtd) Dr. Ekong Thomas Udok held the estate in trust for the entire members of the NungAdiaAbasi family. Upon the demise of the 1st to 4th of his brothers in paragraph 6 above, the family agreed in a meeting that he and his 5th brother should hold the Letters of Administration as the most senior members of the family. They were to administer the estate to the benefit of every member of the family and not sell it. The most senior member of the family always held the estate in trust for others for the time being. The 5th son later died. The family of NungAdiaAbasi asked Col. (Rtd) Dr. Ekong Thomas Udok to obtain the Certificate of Occupancy in his name and hold the property in trust for all the beneficiaries.
8. The plaintiff and some other grandchildren lived in some of the rooms in the said property until last year when they parked out to secure bigger apartments. Their rooms are still there for them and their properties in it. Mrs. Bassey ImeUdok, the wife of the 1st son of Late Chief Thomas Udok, a brother to Col.EkongUdok is still living there till date. Col. (Rtd) Dr. Ekong Thomas Udok had all time before the purported sale of the property acted for the interest of the entire family. He was never the owner of the property. The estate devolved on each of the sons after the death of their father in order of seniority; none of the senior brothers of Col. EkongUdok sold the property during their lifetime. During the lifetime of Col. (Rtd) Dr. Ekong Thomas Udok, whenever he collected rents from the tenants in the property, he would call his other brother’s children and share the proceeds with them. The plaintiff as the most senior grandchild was always present.
In an action in respect of family property, a member of a family has the capacity to sue to protect family property. Any member of a family whose interest is threatened by wrongful interference with the family property can sue to project his interest. He can commence the action with or without the consent of other members of the family. See ODIMEGWA V. IBEZIM (2019) 9 NWLR (prt 1677) 244 at 260. The question here is what is the interest of the appellant in the property, the subject matter of thisappeal”.

From the state of pleadings and evidence adduced at the lower Court, the property in question was acquired by the late Chief Thomas Udok which means that members of the extended family of NungAdiaAbasi did not have a share in it. The appellant not being a son of the late Chief Thomas Udok had no interest in the property. He never challenged the late Col. (Rtd) Dr. EkongUdok’s ownership, use and possession of the property till his death. The appellant is not also denying knowledge of the fact that Col. Dr. EkongUdok obtained the certificate in his personal name been the sole surviving son of late Chief Thomas Udok. I am at one with the learned trial judge held at page 477 that –
“Ironically, however, the plaintiff in this case is not representing the said grandchildren of the late Chief Thomas Udok. Rather he purports to represent the members of the extended family of NungAdiaAbasi.”

As stated earlier, the appellant is not per se challenging his locus standi to maintain the action in a representative capacity but that the failure of the representative action translates also to the failure of hiscapacity to defend the counter-claim.

A counter claim is a cross-action and where the plaintiff fails in proving his claim, the defendant on proving his counter-claim may succeed. Whether in respect of the claim or the counter claim, therefore, the plaintiff or the defendant as the case may be must discharge the burden of establishing his entitlement to the reliefs he claims. See KYARI V. ALKALI also reported in (2001)11 NWLR (prt 724) 412, UDEZE V. CHIDEBE (1990)1 NWLR (prt 125) 141 and AKINBADE V. BABATUNDE (2018)7 NWLR (prt 1618) 366 at 388. In AFRICAN SONGS LTD V. ZADEGEYE (2019) 2 NWLR (prt 1656) 335 at 344, this Court restated the already settled law that a counter-claim is an independent and separate action of its own although it is usually an offshoot of the main claim. Thus, the success or failure of the main action does not necessarily translate to the success or failure of the counter-claim. Perhaps, it needs to be stressed that the respondent has maintained that the appellant is not the child of the assignor and has no legal right or interest to protect in the said property. The question of the appellant been sued in a representative capacitydoes not even arise as regards the counter-claim. The appellant’s lack of locus standi is confined and limited to suing in a representative capacity and no more. The failure of the main action does not translate to the success or failure of the counter-claim. The first issue is therefore resolved against the appellant.

The appellant’s grouse on the second issue relates to the tenor of the joint letter of administration, a joint ownership which resulted to the sole ownership of the property by the assignor upon the demise of his brother, EdemUdok.

The appellant’s contention is that the property in question has not been partitioned to the appropriate branches and upon the death of EdemUdok the assignor who became sole administrator was to administer the estate on behalf of the beneficiaries namely, the appellant and other grandchildren from the sons of late Chief Thomas Udok.

​It is a notorious fact as could be gleaned from the record that the two administrators, EdemUdok and EkongUdok were the only surviving children of their father and the only beneficiaries. The property was not shared till the death of EdemUdok. Also notin contention is that fact that the only surviving son, the assignor obtained the certificate of occupancy in his own name and the issue that he held the property in trust for all the beneficiaries remain a mirage and not borne by any evidence on record.

Learned counsel for the respondent has submitted and I agree with his submission that all children of Chief Thomas Udok had only life interest in the estate since it was not partitioned. And the assignor been the only last surviving child enjoyed the residual interest.

The next germane issue is whether the doctrine of survivorship apply to the instant case. In CHINWEZE V. MASI (supra) the Supreme Court following the case of SHONEKAN V. SMITH (1964)NMLR 59 at 62 held the view that the right of survivor of joint tenants prevails even though the joint tenant who has died has devised his interest to a third person. Consequently, the plaintiff/appellant’s not being children of Peter Chinweze was excluded from succession. The property No 5 Ogui Road, Enugu not forming a part of the estate of their mother Elizabeth Chinweze is definitely outside what the appellants may lay claim as beneficiaries ofher estate. In other words, the appellants have no locus standi to bring the action to claim a property which does not form part of the estate of their mother Elizabeth Chinweze.
In the instant case, the two administrators, EdemUdok and EkongUdok were the only surviving children of their father and the only beneficiaries. The property having not been shared till the death of EdemUdok, EkongUdok automatically became the sole owner. The appellant can only have a right in his father’s estate and not that of his grandfather. In effect, the appellant is excluded from succession and the doctrine of survivorship aptly apply in the present case. The second issue is also resolved against the appellant.

The appellant is questioning the decision of the lower Court which conferred ownership of the estate on the person in whose name the certificate of occupancy was issued that is, Col. Dr. EkongUdok.

​A certificate of occupancy properly issued to a holder presupposes that the holder is the owner in exclusive possession of the land it relates to. The certificate also raises the rebuttable presumption that at the time of its issuance there was notin existence a customary owner whose title has not been revoked. See Sections 14 and 15 of the Land Use Act, 1978 and the cases of G. C. M. LTD V. TRAVELLERS PALACE HOTEL (2019)6 NWLR (prt 1669) 507 at 542, EZEANAH V. ATTA (2004)7 NWLR (prt 873) 468, MADU V. MADU (supra) and KOLO V. LAWAN (2018)13 NWLR (prt 1637) 495 at 516.
In the instant case, the only root of title upon which the appellant based his claim is that the accompanying documents to the certificate of occupancy recognizes the customary owners and thus did not confer exclusive possession to Col. Dr. EkongUdok. A statutory right of occupancy deemed to have been granted by the Governor of a State pursuant to Section 34 (2) of the Land Use Act, 1978 is also valid and therefore the question that the property in dispute existed since 1962 is not tenable. A person who is granted a certificate over a parcel of land is entitled to hold it to the exclusion of any other person unless and until the certificate of occupancy is for good reasons revoked by the same authority that granted it or the grant is found to be void and set aside by a Court of law. See GANKON V. UGOCHUKWU CHEMICAL IND. LTD (1993) 6NWLR (prt 297) 55.

The appellant cannot therefore claim interest in the property without adducing credible evidence to rebut the presumption inherent in the certificate of occupancy granted to Col. Dr. EkongUdok in this case. I unhesitantly resolves the third issue against the appellant.

Having resolved all the three issues against the appellant, the destiny of the moribound appeal is an outright dismissal. However, in view of my earlier findings that the purported appeal having no valid ground to sustain it is incompetent, the appeal is accordingly struck out with N50,000 costs in favour of the respondent against the appellant.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege to read in draft the judgment delivered by my learned brother, MUHAMMED LAWAL SHUAIBU JCA.
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal is incompetent and liable to be struck out. I abide with the order as to costs.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Muhammed L. Shuaibu, JCA, was made available to me in draft before now.

Having therefore read the record of appeal andlistened to the arguments of learned counsel, I am satisfied that my brother treated the issues that arose in the appeal eminently, particularly the preliminary objection raised to the hearing of the appeal and have nothing further to add.

​The appeal being incompetent, the leave of Court not having been sought and obtained, it is hereby struck out. I abide on orders made as to costs.

Appearances:

…For Appellant(s)

UtibeNwoko Esq. – for RespondentFor Respondent(s)