UPPER GRACELAND HOTEL & ANOR v. EZE IPEH
(2019)LCN/13005(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/OW/391M/2017
RATIO
WHETHER THE SUPREME COURT CAN REFORMULATE ISSUES
In FRN v. BORISADE (2015) LPELR 24301 SC. – the Apex Court held that the power of the Supreme Court to reformulate issues is not in doubt, in so far as the issues so reformulated are within the Grounds of Appeal. The Court usually embarks in this option for the purpose of clarity and precision when it observes that the issues which the parties distilled are clumsy, imprecise or are proliferated.PER RITA NOSAKHARE PEMU, J.C.A.
ACTION: WHETHER THE PERSONAL REPRESENTATIVE TO A DECEASED HAS THE CAPACITY TO INSTITUTE AN ACTION IN RESPECT OF REAL ESTATE
Decidedly, a personal representative of a deceased has the capacity to institute an action in respect of the real estate to which a deceased is entitled by operation of law, even in situations where Letters of Administration has not been obtained ? In OKONYIA v. IKENGAH (2001) FWLR (PT. 53) 158, the Court considered the provisions of Section 4 (i) of the Administration of Estate Law of Abia State.PER RITA NOSAKHARE PEMU, J.C.A.
FAILURE TO OBTAIN LETTERS OF ADMINISTRATION CANNOT DEFEAT A VALID TITLE TO PROPERTY
In AGBABIAKA v. OKOJIE (2004) 15 NWLR (PT. 897) 503, it was held that failure to obtain Letters of Administration cannot defeat a valid title to property.PER RITA NOSAKHARE PEMU, J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND: THE CLAIMANT MUST PLEAD AND PROVE HIS ROOT OF TITLE
In an action for declaration of title to land, the Claimant must plead and prove his root of title before he can have his claim of title on acts of ownership or long possession AJALA v. OKOGBUE (2011) 16 NWLR (PT. 1272) at 62 @ 76.PER RITA NOSAKHARE PEMU, J.C.A.
MISNOMER: DEFINITION
It was also held in that case of Agip Nig Pic Vs Ossai (supra) that:
If the party intended to be sued exists but a wrong name has been used to describe it, that, strictly speaking is a misnomer. In this case, Appellant, Nigeria Agip Oil Company Ltd. Appears to have also owned up to being called AGIP NIG PLC, as pleaded by the Respondents, hence their full participation in the case and filing of this appeal on their said name. They cannot therefore complain of denial of fair hearing, having been duly heard. Chidoka & Anor Vs FCFC Ltd (2012) LPELR 9343 SC; Ukiwo Vs Onwudiwe & Anor (2016) LPELR – 40511 CA; Newswatch Comm. Ltd Vs Atta (2006)12 NWLR (Pt.993)144.PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. UPPER GRACELAND HOTEL
2. MR. NWAEZE – Appellant(s)
AND
EZE IPEH – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State High Court holden at Umuahia, delivered on the 13th of July, 2016 in Suit No. HU/48/2013.
SYNOPSIS OF FACTS
The Claimant in the lower Court had instituted an action as ?the legal representative of late Chikezie Agwu Ipeh, and claim the piece or parcel of land known as and called ?OJITA OKPOROAMA LYING AND SITUATE AT UMUOBASI UGBA IBEKU, UMUAHIA NORTH LOCAL GOVERNMENT? The land in dispute was leased to Chikezie Agwu Ipeh in 1976 by one Bob Ndumele Onuegbu – deceased. The lease was registered by Chikezie Agwu Ipeh who also farmed on the land.
The Claimant averred that Chikezie Agwu Ipeh died intestate and upon his demise, his estate devolved on the Claimant in trust for himself and his brothers.
In February 2013, the Claimant discovered that the Defendants have completely fenced the land in dispute and installed two gates.
The Claimant had pleaded Survey Plan No. MGZ/ABTR.006/2013 dated 14th June, 2013, to show the land disputed.
?On their part, the Defendants pleaded that
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the land in dispute is ?known as and called UMUNWALARI NKATA IBEKU LAYOUT? situate and lying at Nkata Ibeku in Umuahia North Local Government Area.
The Defendant acquired the land from the legitimate original owners ? the Umunwalari Nkata Ibeku Family represented by B. B. Apugo in accordance with the native law and custom of Nkata Ibeku of Umuahia North Local Government Area of Abia State for two million naira, and were put in possession by the Umunwalari Nkata Ibeku Family through B. B. Apugo, without any kind of challenge. They have been in undisturbed possession, and exercised acts of ownership.
The land in dispute forms part of land acquired by the Abia State Government, but subsequently retured to Umunwalari Nkata Family. They produced a dispute survey ? Exhibit ?G? The Defendants aver that neither the Claimant nor ?his alleged predecessors? own the land in dispute.
At the conclusion of the trial, the Court below found for the Respondent. The Appellants are dissatisfied with the judgment of the lower Court and have appealed it.
?
In an amended Notice of Appeal filed on the 27th of March
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2018 but deemed filed on the 28th of June, 2018, the Appellants filed nine (9) Grounds of Appeal.
The Appellant filed their brief of argument on the 30th of October, 2018 but same was deemed filed on the 1st of November, 2018. It is settled by Uche Wisdom A. Durueke Esq.
The Respondent filed his brief of argument on the 21st of November, 2018. It is settled by Chief Uwandu Onyenakom.
The Appellants distilled ten (10) issues for determination from the Grounds of Appeal; They are:-
1. WHETHER THE 1ST DEFENDANT/RESPONDENT IS A JURISTIC PERSON IN LAW THAT CAN SUE OR BE SUED? (GROUND 1).
2. WHETHER THE CLAIMANT DISCLOSED HIS LOCUS STANDI TO COMMENCE THE SUIT? (GROUND 2).
3. WHETHER THE EVIDENCE OF CW2 WAS NOT HEARSAY EVIDENCE WHICH THE TRIAL COURT OUGHT TO HAVE DISCOUNTENANCED? (GROUND 3).
4. WHETHER THE CLAIMANT PROVED THE IDENTITY OF THE LAND IN DISPUTE AS TO ENTITLE HIM JUDGMENT? (GROUND 4).
5. WHETHER EXHIBIT ?D? WAS NOT WORTHLESS IN DETERMINING THE CASE? (GROUND 5).
6. WHETHER THE CLAIMANT PROVED THAT THE LAND IN DISPUTE IN UMUOBASI UGBA AS HELD BY THE TRIAL COURT? (GROUND 6).
7. WHETHER THE TRIAL COURT
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WAS RIGHT IN HOLDING THAT THE DW2 HAD NO TITLE TO TRANSFER TO THE 2ND DEFENDANT? (GROUND 7).
8. WHETHER THE FINDING OF THE TRIAL COURT THAT THE DEED OF LEASE ? EXHIBIT ?B? ? IS GENUINE AND RELATES TO THE LAND IN DISPUTE IS SUPPORTED IN LAW? (GROUND 8).
9. WHETHER, AS ALLEGED, THE DEFENDANTS/APPELLANTS TRESPASSED INTO THE CLAIMANT/RESPONDENT?S LAND AS TO ENTITLE HIM TO DAMAGES (GROUND 9).
10. WHETHER THE JUDGMENT OF THE TRIAL COURT IS NOT AGAINST THE WEIGHT OF EVIDENCE BEFORE TRIAL COURT? (GROUND 10).
The Respondent distilled nine (9) issues for determination from the Grounds of Appeal. They are:-
A. WHETHER THE APPELLANTS WHO DEFENDED RESPONDENT?S SUIT AT THE TRIAL COURT SUFFERED ANY PREJUDICE OR WERE MISLED BEING THAT THE 1ST APPELLANT, A PERSON KNOWN TO LAW WAS SUED IN A WRONG NAME (GROUND 1).
B. WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE RESPONDENT HAD LOCUS STANDI TO INSTITUTE THIS SUIT (GROUND 2).
C. WHETHER THE TRIAL COURT WAS RIGHT TO RECEIVE AND ACT UPON THE EVIDENCE OF CW2, AN EXPERT WITNESS (GROUND 3).
D. WHETHER THE FINDING OF THE TRIAL COURT WHICH FIXED THE
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LOCATION OF THE LAND IN DISPUTE IN UMUOBASI UGBA WAS BORNE OUT BY THE EVIDENCE BEFORE THE COURT (GROUND 4 & 6).
E. WHETHER EXHIBIT D WAS PROPERLY RECEIVED IN EVIDENCE (GROUND 5).
F. WHETHER THE TRIAL COURT IS PREVENTED FROM FINDING THAT DW2 DID NOT HAVE ANY RIGHT TO SELL THE LAND IN DISPUTE.
G. WHETHER EXHIBIT B WHICH WAS DULY EXECUTED, REGISTERED, STAMPED AND AUTHENTICATED IS GENUINE AND RELATES TO THE LAND IN DISPUTE (GROUND 8).
H. WHETHER THE RESPONDENT PLEADED AND PROVED APPELLANTS? TRESPASS AS TO ENTITLE THE RESPONDENT TO DAMAGES (GROUND 9).
I. WHETHER THE JUDGMENT OF THE TRIAL COURT WAS AGAINST THE WEIGHT OF EVIDENCE.
It seems to me that the respective issues for determination proffered by the parties coalesce.
I shall determine this Appeal based on the Appellants issues for determination.
ISSUE NO 1.
It is the contention of the Appellants that the 1st Defendant/Respondent is a juristic person in law that can sue or be sued. That it is only a person that is natural or artificial that can sue or be sued. Therefore an action against a non legal personality is bad and a nullity.
?
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Submits that the Claimant had averred in paragraph 2 of his statement of claim that:-
?The 1st Defendant is a company incorporated under the laws of the Federal Republic of Nigeria as a going concern.”
Submits that the Claimant know that the 1st Defendant is an incorporated company but chose not to sue it as a legal personality.
Submits that the word ?Ltd? or ?Plc? is not prefixed to the name of the 1st Defendant.
That the 2nd Appellant was sued as the alter ego of the 1st Defendant. They submit that he cannot be sued when the 1st Defendant (1st Appellant) is known to the Claimant and not sued under the law. Therefore they submit that the Court below had no jurisdiction to hear the suit. The judgment of the Court below therefore ought to be set aside. Submits that the 2nd Appellant cannot be the alter ego of a non ? existent party or person in law.
ISSUE NO 2.
Referring to Paragraph 1 of the Statement of claim, the Appellants agree that the Claimant did not plead his nexus with late Chikezie Agwu Ipeh. He did not aver that late Chikezie Agwu Ipeh was his father Submits that the Claimant did not disclose in
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his pleading his locus standi to sue. Therefore any evidence on this is evidence outside the pleadings. That his failure to plead his relationship with late Chikezie Ipeh is fatal to his case.
ISSUE NO 3.
Submits that answer given by CW2 under cross-examination amounts to hearsay evidence. He did not disclose the names of his alleged field team and their qualification to know if they exist, and if so, whether they are qualified to carry out a survey, because the service was one of professional expertise.
Submits that ? Exhibit ?E? tendered by CW2 is documentary hearsay. The cross-examination showed that CW2 did not see or know the features on the land, and could not account for them. He never went to the land, but relied on the report of his two experts. Urges Court to reject the totality of his evidence.
ISSUE NO 4.
Submits that the parties joined issues as to the identity of the land in dispute.
While the Claimant (now Respondent) averred in Paragraph 4 of the statement of claim that the land is ?situated at Umuobasi Ugba Ibeku Umuahia North Government Area within the jurisdiction of the Honourable
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Court? and in Paragraph 5 of the statement of claim pleaded that the land in dispute measures 549,593 square meters and is surrounded by survey pillars Nos ES12521, ES12515, ES53219 and MC1776 and more particularly described and delineated on Plan No IM/GA 1828 dated 14th day of November 1976, In paragraph 3 of the Amended Statement of Defence, however the Appellants pleaded that the land in dispute is situate and lying at Nkata Ibeku in Umuahia North Local Government Area? and in their Paragraph 7C averred that the land is ?1760883 square meter?.
During CW1?s cross-examination, he admitted that the land is in Umunwalari in Nkata.
Submits that the Umunwalari constructed the road on the land in dispute being their land.
Submits that the Respondent failed to plead his boundary neighbours and the features on the land which he is claiming. But the Appellants in their paragraph of the Amended Statement of Defence pleaded this.
?
That by the evidence of CW1, the land in dispute is bounded by the land of the 2nd Defendant. The said adjoining lands of the 2nd Defendant are not in Umuobasi Ugba. Submits that the 2nd
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Defendant acquired his interest or title from Umunwalari family, Nkata meaning that the lands are in Umunwalari Nkata and not Umunwalari Ugba. Submits that the land in dispute is in Umunwalari Nkata.
Referring to the evidence of CW2, he submits that nowhere is it stated that the land in dispute from which he purportedly prepared its dispute survey plan measured 349.593 squares meters.
Submits that the Claimant did not call any witness from Bob Ndumele Onneye?s family, or from Umuobasi Ugba to testify as to whether the land purportedly on lease to late Chikezie Agwu Ipeh is the same land with the land in dispute.
ISSUE NO 5
Submits that Exhibit ?D? letter made on the 26th of June 2013 by one Nnenna O. Kalu, for the Director of Town Planning of Abia State Government in reaction to letter caused to the Director, Town Planning on 25th of June, 2013 by the Counsel for the Claimant.
Submits that it is a document made during the pendency of the suit, as the action was commenced by the Plaintiff on 21st March, 2013.
Submits that such a document made during the pendency of the suit is inadmissible citing DISU OLOMO v.
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SUNDAY APE (2014) 12 WRN 110. They submit that the Court below should have expunged Exhibit ?D? or disregarded it. Submits that Exhibit ?D? was not tendered by the maker. That CW1 who was not the maker, and was not in a position to be cross-examined on the document. That Exhibit ?D? was not certified. This is fatal to the Respondents case, he submits.
That there is nothing in Exhibit ?D? that states when the purported charting was made. How it was carried out and who carried out the charting, being a technical exercise.
ISSUE NO 6.
Submits that the Respondent failed to describe with certainty the identity of the land and where it is situated. That he did not plead the features of the land in dispute. They did not plead boundary neighbour to the land in dispute and where their lands are situate. No boundary neighbour was called by him to testify.
?
That the land in dispute is contained in the property survey plan attached to the irrevocable Power of Attorney granted the 2nd Defendant which is Exhibit ?H?. That CW2 prepared and tendered Exhibit ?E? when he did not visit the
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land in dispute.
ISSUE NO 7.
Submits that the Claimant did not sue or seek any relief against DW2. Therefore DW2 was not a party to the suit. That the Claimant (Respondent) neither pleaded nor gave evidence of the root of title of the purported lessor. He failed to give evidence as to root of title of the forebears of Bob Ndumele Onuegbu who he alleged that the land originally belonged to. That the Deed of lease did not state the original owner of the land stated therein. That Exhibit ?B? on which the Claimant based his claim never referred to, or called Bob Ndumele Onuegbu, the owner of the land.
ISSUE NO 8.
Submits that Exhibit ?B? the Deed of Lease, being found by the Court below to be genuine, is not supported in law. That Exhibit ?B? was not certified.
That Exhibit ?B? does not relate to the land in dispute. That the Respondent did not plead or adduce evidence as to the nexus between the land in dispute and the land stated in Exhibit ?B? That Exhibit ?B? did not state where exactly Umuobasi land is.
?
That the basis of the finding by the trial Court that
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Exhibit ?B? related to the land in dispute was not pleaded or given in evidence by the Claimant.
ISSUE NO 9.
Submits that in this case, the Claimant did not prove that he is the owner of the land in dispute which is 1760.883 square meters, while the land he alleged was leased to him is 549.593 square meters. He did not prove the purported title of the lessor to the land in dispute. He did not prove that he was in exclusive possession of the land in dispute.
That the Claimant Respondent did not plead particulars of the alleged trespass.
That the Respondent claimed the sum of one million naira as damages, but did not state whether it was general or special damages. Submits that the claim of trespass and damages ought to fail as they hung on nothing.
ISSUE NO 10.
Submits that the quality of evidence adduced by the Claimant/Respondent was not sufficient for him to be held to have proved his case. That evidence of Respondent is either untrue or hearsay. Evidence of CW2 is hearsay, including the Survey Plan which he tendered as Exhibit ?E?. That CW3 demonstrated lack of knowledge to be believed in the matter.
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That the evidence of CW3 and that of CW2 who prepared Exhibit ?E? are at variance with each other.
That the land the Respondent stated in the Deed of Lease Exhibit ?B? measures 549.593 square meters, while the land in dispute measures 1760.883 square meters. That the Respondent did not plead and give evidence to this material discrepancy.
RESOLUTION OF ISSUES
It is apparent that the Issues formulated by the Appellant can be recouched into three main issues that can cover the field.
In FRN v. BORISADE (2015) LPELR 24301 SC. – the Apex Court held that the power of the Supreme Court to reformulate issues is not in doubt, in so far as the issues so reformulated are within the Grounds of Appeal. The Court usually embarks in this option for the purpose of clarity and precision when it observes that the issues which the parties distilled are clumsy, imprecise or are proliferated.
?It can also do this for a more judicious, and proper determination of the Appeal, or to narrow the issue/issues, in controversy, in the interest of brevity.
PSHSMB v. GOSHWE (2013) 2 NWLR (PART 1338); CHABASAYA v. ANWASI (2010) 10
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NWLR (PART 1201).
In the present appeal, I am of the view that the issues to be ascertained can safely be said to be issue of jurisdiction and locus standi which are threshold issues.
It is apparent that the Appellants based so much on technicalities particularly on admissibility of documents, and on the issue of hearsay evidence. But I am of the view that the issues can aptly be put thus:-
1. WHETHER THE 1ST APPELLANT IS A JURISTIC PERSON.
2. WHETHER THE RESPONDENT HAD LOCUS STANDI TO INSTITUTE THE SUIT AT THE COURT BELOW.
3. WHETHER THE CLAIMANT PROVED HIS TITLE TO THE LAND IN DISPUTE BY COGENT, AND CREDIBLE EVIDENCE AS REQUIRED BY LAW.
4. WHETHER THE ISSUES OF TECHNICALITY RAISED CAN STAND ? i.e THE ISSUE OF UNCERTIFIED DOCUMENTS; DOCUMENTS PRODUCED DURING THE PENDENCY OF THE SUIT; THE FAILURE OF THE SURVEYOR TO VISIT THE LAND IN DISPUTE PERSONALLY, CAN STAND.
ISSUE NOS 1 AND 2
The two issues which went to jurisdiction of the Court below is that the 1st Appellant is not a juristic person; and that the Respondent had no locus standi to entertain the suit at the Court below.
?
From records, the Respondent
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instituted the suit, the subject matter of this appeal in a representative capacity. His father Chikezie Agwu Ipeh died intestate. The Appellants? lay claim to part of the Respondent fathers land. They fenced it and claim ownership thereof. But the Respondent had an interest to protect by virtue of the fact that he was the child of the deceased. He sued by his attorney Mr. Obioma Nkele. Paragraph 1 of statement of claim – page 3 of Record.
Decidedly, a personal representative of a deceased has the capacity to institute an action in respect of the real estate to which a deceased is entitled by operation of law, even in situations where Letters of Administration has not been obtained ? In OKONYIA v. IKENGAH (2001) FWLR (PT. 53) 158, the Court considered the provisions of Section 4 (i) of the Administration of Estate Law of Abia State.
The Respondent had a right to bring an action to protect family interest, whose interest stands threatened by any wrongful alienation, or interference with family property, of which he has interest.
?
In considering the issue of locus standi, the Court must of necessity peruse the facts averred in the
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statement of claim. And where in a statement of claim, facts depict that the right of a Claimant has been violated, or in danger of being so violated, or adversely affected, he would be deemed to possess sufficient interest, and a fortiori locus standi.
In Paragraphs 2 and 3 of the statement of claim the Claimant had averred thus:-
PARAGRAPH 2
?The 1st Defendant is a company incorporated under the Laws of the Federal Republic of Nigeria as a going concern. The 1st Defendant has its principal place of business at Umuobasi Ugba Ibeku.”
PARAGRAPH 3
?The 2nd Defendant is the Managing Director or alter ego of the 1st Defendant and resides at the 1st Defendant?s principal place of business.”
Page 3 of the Record of Appeal
The fact that the word ?Ltd? is not added to the name of the 1st Defendant is not prejudicial to the adverse, party as long as the company is registered and incorporated according to Law. In ADEJOBI & ANOR v. THE STATE (2011) LPELR 97, SC. It was held that the mere fact that the words ?PLC? were not added to the name on the charge sheet would not diminish its
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status as a public liability company and as a juristic personality.
In Paragraph 1 of the Statement of Defence filed on the 4th of June, 2013 the Appellants (Defendants in the Court below) aver thus:-
?The Defendants admit Paragraph 2 and 3 of the Claimant statement of claim to the extent that the 2nd Defendant is the Managing Director of the 1st defendant but deny residing at the 1st Defendant?s principal place of business?
– Page 26 of the Record of Appeal.
I wonder why the Appellants should appeal, knowing that the 1st Appellant is not a juristic person. In AGBABIAKA v. OKOJIE (2004) 15 NWLR (PT. 897) 503, it was held that failure to obtain Letters of Administration cannot defeat a valid title to property.
I am of the view that the jurisdictional issues put forth cannot stand as it is misconceived. In other words, the Respondent possessed the necessary locus standi to institute the action the subject matter of this appeal as he did in the Court below.
Issues Nos 1 and 2 formulated by me are resolved in favour of the Respondent, and against the Appellants.
ISSUE NO 3.
In an action for declaration of
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title to land, the Claimant must plead and prove his root of title before he can have his claim of title on acts of ownership or long possession ?AJALA v. OKOGBUE (2011) 16 NWLR (PT. 1272) at 62 @ 76.
It is the Appellants story that, they are owners in possession of land called Umunwalari Nkata Ibeku in Umuahia North Local Government Area. That the land was purchased from PRINCE B. B. APUGO for the sum of two million naira in accordance with native law and custom of Nkata Ibeku Community in the presence of witnesses.
Thereafter PRINCE APUGO handed over the land to them, and put them in possession. He executed a deed of conveyance in their favour in February 2012. That the land over which the Respondent sued them is not known to them. The land they bought is situate at Nkata Ibeku village. They hired a surveyor to survey the land. No survey beacon on the land. Neither did they uproot any.
On their part, the Respondent states that the land in dispute originally belongs to the forebears of late Ben Ndumele Onuegbu of Umuobasi Ugba Ibeku. For valuable consideration he executed a Deed of lease dated 6th December 1976 for a term of ninety nine
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years in favour of late Chikezie Agwu Ipeh, father of the Respondent. The Deed was registered by late Chikezie Agwu Ipeh who farmed on the land until 2011 when he died. Upon his death intestate, his estate devolved on the Respondent in trust for himself and his brother. They continued to exercise maximum acts of ownership over the land until 2011 when due to health issues the land in dispute was left fallow.
The 2nd Appellant who had earlier commenced a hotel adjoining the land in dispute started trespassing on the land in dispute.
CW2 ? Respondent surveyor did state that upon charting with their coordinates, he discovered that the property in Plan No IM/GA1828/76 fell inside Plan No. ABCS/034/2012. He therefore concluded that the two different Survey Plans are located within.
The Appellate Court cannot interfere with findings of fact by a trial Court unless it is shown, or demonstrated to the satisfaction of the Court, that the finding is perverse, or that it is not supported by the evidence on record, or that it violates a settled principle of law which has occasioned a miscarriage of justice ? ADEGBITE v. OGUN FAOLU & ANOR
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(1990) NWLR (PT. 149) 578; OJIBAH v. OJIBAH (1991) LPELR. 2374 (1991) 6 S.C. 182.
In appraising the evidence and facts before it, the Court below observed the following viz:
That Exhibit ?D? is a letter by the Director of Town Planning. It emanated from a person performing an act in his official capacity and cannot be regarded as ?a person interested?
In that letter, the Director of Town Planning stated that the land of the Claimant does not fall within the Umunwalari Nkata Ibeku layout.
That a lease of 99 years was granted the Respondent?s father Exhibit ?B?, in respect of the land situate at Umuobasi Ugba Ibeku.
The Court below found that the land in dispute is situate at Umuobasi Ugba Ibeku and is not part of the Umunwalari Nkata layout.
It found as a fact that the Umunwalari Nkata layout had no boundary with Umunwalari Ugba land.
Court found that there was no evidence to show that DW2 bought land from that village or Community.
?
That if Umunwalari Nkata layout has no boundary with Umunwalari Ugba, it means that the land sold to the Defendant by virtue of Exhibit H is not
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part of the Umunwalari Nkata layout.
Above facts were at the bosom of the Court below, and this Court cannot interfere with its findings based on those facts, if not perverse.
I am of the view that the Respondent (Claimant in the Court below) had on a preponderance of evidence proved his claim by cogent and credible evidence to entitle him to judgment.
However the Court below was wrong to have refused the first relief sought by the Claimant Respondent. This is because the Claimant had without doubt proved that his late father procured statutory right of occupancy to the land in dispute.
This issue is resolved in favour of the Respondent and against the Appellants.
ISSUE NO 4.
With respect, the Appellants made heavy weather of technicalities by basing on them.
I had touched on the issue raised by him that Exhibit ?D? was produced during the pendency of a suit. I say here again, that in the circumstances of this case, that situation did not arise as the person was not a party to the suit, but produced an official document relevant to the proceedings at the time he did. He was not a person interested.
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On the issue of uncertified document ? As long as a document is relevant, that is paramount. The Respondent possessed the original copy written to him. Therefore, he is at liberty to tender it.
On the issue of failure of surveyor to visit the land in dispute, it is trite that where the land in dispute is readily identifiable, there would be no need for a surveyor. The presence of a surveyor does not advance the case of a party an inch further, where there is over whelming evidence establishing title to land. In this case, he acted on the data submitted to him by the team who visited the land.
In all, I am of the view that the points raised by the Appellant cannot stand as they are misconceived.
I see no reason to disturb the findings of the Court below, save to state that this Court grants also the first relief sought by the Respondents in addition to those granted him by the Court below.
?
The Appeal fails and same is hereby dismissed. The judgment of Abia State High Court holden at Umuahia, in Suit No. HU/48/2013 is hereby affirmed. I hereby make the following:-
1. That the Claimant is entitled to the grant of the Statutory Right of
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occupancy over all that piece or parcel of land known as and called Ogita Okporoama together with all the fixed structures situate at Umuobasi Ugba Ibeku in the Umuahia North Local Government Area subject matter of Deed of lease dated 6th day of December 1976 and registered as No 16 at Page 16 in Volume 93 of the Lands Registry Owerri (now Umuahia).
2. An order ejecting the Defendants and or their agents, or privies from the land in dispute verged blue in Claimant?s survey plan (excluding the 1st Defendants Arsenics).
3. All documents of title relating to the land in dispute proceedings from the Defendants and or their agents which run contrary to the Claimant?s interest in the disputed land are hereby nullified and cancelled.
4. Eight hundred thousand naira (N800,000.00) damages for trespass in favour of the Respondent.
5. The Defendants, their principals, agents, privies, servants, assigns and or any persons or person claiming through them are hereby perpetually restrained from further trespassing on the land in dispute.
N100,000 costs in favour of the Respondent.
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ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the draft of the lead judgment, just delivered by my lord R.N. PEMU JCA and I agree with her reasoning and conclusion that the appeal lacks merit and should be dismissed.
On the issue of suing in a wrong name, I add that it should be noted that Appellant raised no objection or issue on that at the trial. They had even adopted the said name in filing defence and this appeal. In the case of Agip (Nig) PLC Vs Ossai (2018) LPELR – 44712 (CA) this Court held:
?The law is also that where an incorrect name is given n a writ and the parties are not misled, in that they know the identity of the person suing or being sued, such is a misnomer that can be corrected. See the case of Osawaru & Anor Vs Fay – Dessy Cathering (2011) LPELR – 4872 (CA); Agbonmagbe Bank Ltd and Anor Vs C.F.A.O) (1961)1 All NCR (Pt.1) 116; AB Manu & Co. Vs Costain (W.A) Ltd (1994)8 NWLR (Pt.360)1 12, Njemanze Vs Shell BP (1966) All NLR 8; Nkwocha Vs Fed. University of Technology (1996)1 NWLR (PT.442) 112; Njoku Vs U.A.C Foods (1999) 12 NWLR (Pt.632) 557. See also Njoku & Ors Vs Onwunelega (2017) LPELR – 43384 CA… Where the
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identity of a party to be sued is well known to the party but its name was inadvertently or wrongly spelt by the opposing party, the mistake or error would be regarded as a mere misnomer.”
It was also held in that case of Agip Nig Pic Vs Ossai (supra) that:
?If the party intended to be sued exists but a wrong name has been used to describe it, that, strictly speaking is a misnomer. In this case, Appellant, Nigeria Agip Oil Company Ltd. Appears to have also owned up to being called AGIP NIG PLC, as pleaded by the Respondents, hence their full participation in the case and filing of this appeal on their said name. They cannot therefore complain of denial of fair hearing, having been duly heard. Chidoka & Anor Vs FCFC Ltd (2012) LPELR 9343 SC; Ukiwo Vs Onwudiwe & Anor (2016) LPELR – 40511 CA; Newswatch Comm. Ltd Vs Atta (2006)12 NWLR (Pt.993)144.
I too, therefore, dismiss the appeal and abide by the consequential orders in the lead judgment.
IBRAHIM ALl ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Rita Nosakhare
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Pemu, JCA. I completely agree with his reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
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Appearances:
Uche Wisdom A. Durueke, Esq.For Appellant(s)
Chief Uwandu OnyenakomFor Respondent(s)
Appearances
Uche Wisdom A. Durueke, Esq.For Appellant
AND
Chief Uwandu OnyenakomFor Respondent
