UZOMA OKORIE v. INNOCENT OKEREKE & ANOR
(2019)LCN/12541(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of January, 2019
CA/OW/338/2014
RATIO
LAND LAW:REGISTRATION OF TITLE
“The law in respect of registration of title is firmly settled that if both competing deeds are registered, each takes effect as against the other from the date of registration. This is because, the benefit of an earlier registration, is preserved. See the case of Rebecca Amankra vs. Zankley (1963) 1 ANLR 304. In other words, where there exists two competing conveyances which have been duly registered, each takes effect as against the other, from the date of registration’ so that the one executed earlier, loses its priority, if it was registered later in point of time. See the case of Tewogbade vs. Mrs.Obadina (1994) 4 SCNJ (Pt. 1) at 176; (1994) 4 NWLR (Pt.338) 326 – per Iguh, JSC. The applicable principle of law has always been that the latter in time of the two parties to obtain the grant, cannot maintain an action against the party who first obtained a valid grant of the land from such common grantor. This is because, the grantor having successfully divested himself of his title in respect of the piece of land by the first grant, would have nothing left to convey to a subsequent purchaser under the elementary principle of nemodat quad non habet as no one may convey what no longer belongs to him. See Boulos vs. Odunsi (1958) WRNLR 169; Odunsi vs. Boulos (1959) SCNLR 591; Coker v. Animashaun (1960) LL.R 71; Adams Akeju & Anor. v. Chief Suenu & Ors. (1935) 6 NLR 87; Okafor Egbuche vs. Chief Idigo (1934) 11 NLR 140.” Per Ogbuagu, J.S.C. (Pp.44-45, Paras.C-D).” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
LAND LAW: WHERE TWO PARTIES ARE COMPETING
“It is trite law that where two competing parties traced their title to a common grantor, the later in time must give way to an earlier one and the later in time cannot maintain an action against the one who first obtained title or interest in the property. He contended that as at 1987 when the Claimant alleged that the land in dispute was resold to him by the 1st Respondent, the 1st Respondent had no property to convey to the Claimant having divested himself of the title in the land in dispute since 1976. He made reference to the cases of Olukoya vs. Ashiru (supra); Ajoku vs. A. G., Rivers State (2006) All FWLR Part 312 page 2147 at 2164 and Maikulami vs. Gashigar (2011) All FWLR Part 597 page 668 at 691-622 and urged this Court to resolve the issue in favour of the Respondents.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA 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
UZOMA OKORIE Appellant(s)
AND
1. INNOCENT OKEREKE
2. DR. D.O. AMAMASI Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
The action leading to this appeal was originally commenced by the late Sunday Amadikwa Okorie in the Court below against the Respondents via a Writ of Summons on the 26th October, 1995. Upon his demise, he was substituted with his son, Uzoma Okorie, the present Appellant, on the 15th May, 2018. The reliefs sought as per the Amended Statement of Claim filed on the 23rd September, 2009 are thus:
(1) A declaration that the Plaintiff is entitled to the Statutory Certificate of Occupancy to all that piece or parcel of land and appurtenances known as and called ‘Uhu Umuahu’ situate at Nkworji in the Owerri North Local Government Area, Imo State within jurisdiction of the Court.
(2) An order of Court that the 2nd and 3rd Defendants give account of the building on the said Uhu Umuahu land from September 1995 till the determination of the case.
(3) Perpetual injunction restraining the Defendants, their agents, privies and servants from further trespass to the said UhuUmuahu land.
The Respondents, then with one Mark Amamasi, as the 2nd Defendant, filed an Amended Statement of Defence on the 15th April, 2009. Hearing was conducted in the suit at the Court below. The parties presented their respective witnesses and at the conclusion, the trial Court delivered its judgment on 31/3/2014 and found that whilst the Claimant failed to prove any acts of procession, the 2nd Defendant succeeded in proving acts of ownership and possession over the land in dispute. It held that the Claimant has failed to prove his case on the balance of probabilities and consequently dismissed his suit.
In consequence thereof, the Plaintiff filed a Notice of Appeal on the 2nd May, 2014 challenging the whole decision which he anchored on three grounds of appeal. The record of appeal was not compiled and transmitted until the 10th October, 2014 when it was received by the Registrar of this Court. He filed an Amended Notice of Appeal on the 18th November 2014. Then on the 8th March 2016, he filed a Motion on Notice for extension of time to regularize the record already compiled and transmitted to this Court out of time. The application was heard and grant and as a result, the record of appeal was deemed on the 28th September, 2016 following which the Appellant?s Brief was filed on the 9th November, 2016. The Respondents then filed their Brief on 23/10/2018 out of time which was equally deemed as properly filed and served on the 24th October, 2018. The Appellant projected three issues from his five grounds of appeal for determination herein. They are:
1. Whether the Court below was right when it failed to consider the issue raised by the Claimant/Appellant to the effect that the Defendant/Respondent amended their Statement of Defence without the leave of Court.
2. Whether the Court below was right in law when it held that the Respondent bought the land subject matter of this appeal before the Appellant.
3. The judgment was against the weight of evidence led.”
The Respondents for their part propounded two issues thus:
1. Whether the lower Court was right in dismissing the Appellant’s case.
2. Whether the lower Court did not consider the validity of the Amended Statement of Defence of the Respondents filed after the requisite period without the leave of Court.
In the arguments tendered by the learned Counsel for the Appellant, Ekeji Samuel Lumenze, Esq., but adopted before this Court by G. Killiwe-Nwachukwu, Esq., in respect of the Appellant’s issue No. 1, i.e. Whether the Court below was right when it failed to consider the issue raised by the Appellant to the effect that the Respondents amended their Statement of Defence without the leave of Court, it was stated that the trial Court was wrong when it held that the Amended Statement of Defence filed with its accompanying processes outside the time given by the Court was a mere irregularity which does not vitiate the processes and that in so far as the Claimant did not raise the issue timeously and before or during the hearing, it would be treated as a mere irregularity.
This was informed by the fact that the Appellant timeously challenged the filing of the said process via a counter-affidavit filed on 20/4/2010 particularly at paragraphs 3, 4, 5 and 6 as depicted at pages 59 and 60 of the record. He argued that the 1st Defendant who did not file any Statement of Defence at the inception could not have amended any process. He stated that the assertion in the affidavit in support of the Motion for amendment that it was done pursuant to the order made on the 23rd June, 2009 was false as the lower Court never made such an order on 23/6/2009 as could be seen at pages 77 and 78 of the record. He said that after granting the Plaintiff?s application for the amendment of his pleading, the lower Court merely commented that as a result of that, Counsel on the other side had 7 days to file any consequential amendment. He contended that the 1st Defendant did not file any Statement of Defence and as such could not have amended anything.
Also, the 2nd Defendant’s (now the Respondent’s) Counsel did not amend his pleading then. It was after about 9 months that a Joint Amended Statement of Defence was filed for all the Defendants including the 1st Defendant who had not filed any Statement of Defence in the first place. Learned Counsel then argued that if there was no valid Amended Statement of Defence before the lower Court it meant that the suit was never defended as the Defendant did not give evidence based on their pleading. He relied on the decision in Ojoh vs. Kamalu (2006) All FWLR Part 297 page 978 and Awuse vs. Odili (2005) All FWLR Part 261 page 248 and submitted that the Respondent?s evidence was based on the said Amended Statement of Defence which was incompetent. He then urged this Court to resolve issue 1 in favour of the Appellant.
The Appellant argued in respect of issue No. 2 that the conclusion of the Court below that the Respondent bought the land subject of this appeal before the Appellant, that is, that the 1st Defendant sold the land in dispute to the Respondent in 1976 and having divested himself of his interest in the land in dispute, had no estate in him to transfer to the Appellant in 1987, was perverse. He contended that the alleged memorandum of sale between the 1st Defendant and the Respondent did not validly transfer interest in the land in dispute from the 1st Defendant to the Respondent. He referred to pages 1 and 2 of the Additional Record of Appeal containing the averments in the affidavit filed by the 1st Defendant in support of the Motion he filed in the Court below on 5/11/2007 stating that he sold the land to the Appellant and not to the Respondent. He alternatively argued that supposed the 1st Defendant first sold the land in dispute to the Respondent by the agreement of sale dated 20/7/76 i.e. Exhibit F, the said document was not an instrument of transfer of title and could not have been relied upon by the Court to hold that the 1st Defendant having divested himself of his interest in the land, had no estate to transfer to the Appellant in 1987. The Learned Counsel then submitted that any instrument of transfer of title to land from one person to another must be by registered as required by Law.
He further contended that even if it were true that there was a land transaction between the 1st Defendant and the Respondent in 1976, the Appellant purchased the land subject matter of this appeal without notice of a prior equitable right. He cited the case of Dankula Vs. Shagamu (2008) All FWLR Part 413 page 1280 ratio 4, where it was held that in law, only a purchaser for valuable consideration who obtained a legal estate at the time of his purchase, without a notice of a prior equitable right, is entitled to priority in equity as well as in the law. He further submitted that the Appellant who bought and registered first, was in constructive possession and that where two parties in an action for declaration of title to land traced their root of title to the same person, title vests in the party with a better title. He referred to the case of Kwari Vs. Rago (2000) FWLR Part 22 page 1129 in support. He also drew the attention of this Court to the affidavit filed by the 1st Defendant in support of his Motion for the Court to restore him to possession when the Respondent ejected him out of possession by self-help wherein he stated that he donated a Power of Attorney to the Plaintiff in the suit in respect of this piece of land at Nkwo Orji in Owerri North Local Government Area of Imo State which he registered on 28/6/88 with the Ministry of Lands, Owerri, Imo State. He later made another Oath stating that he used to be the owner of the land in dispute before he sold the same to the 3rd Defendant i.e. the Respondent in this appeal which the lower Court preferred to the first in time principle. He therefore urged this Court to resolve the issue in favour of the Appellant.
Regarding the third issue, it was submitted that the trial Court committed an error when it considered the traditional history of the land as presented by both parties in favour of the Respondent. He stressed that both the Appellant and the Respondent traced their title to an established owner and, in that respect, relied on the Supreme Court decision in the cases of Runsewe vs. Odutola (1996) Vol. 36 LRCN page 813 ratio 3, Olukoya vs. Ashiru (2006) All FWLR Part 322 page 1479; Isaac vs. Imasuen (2007) All FWLR Part 376 page 689; Okelola vs. Adeleke (2004) Vol. 129 LRCN page 4992 ratio 14; Int?l Beer & Beverages Ind. Ltd vs. Mutunci Co. (Nig.) Ltd (2013) All FWLR Part 670 page 1253 at 1284 paragraphs A-B; Ibrahim vs. Osunde (2009) 6 NWLR Part 1137 page 382 and Dantsoho vs. Mohammed (2003) FWLR Part 150 page 1717 and submitted that where two persons claim title from a common vendor, the first in time takes priority.
He said that the trial Court found that both parties led evidence and traced their title to the land in dispute to the 1st Defendant and commented that where parties to a suit traced their root of title to a common person or seller, title will be awarded to the party that proves a better title to the land in dispute but the trial Court stumbled on its way and then came to a wrong conclusion that by resolving the issue it would warrant the Court looking at the traditional history of the land and acts of possession as pleaded and proved by the parties. He contended that if the trial Court had properly applied the law i.e. where parties to a suit traced their root to a common person or seller, and not by traditional history of the land, it would have reached a different decision. He argued that the Respondent took physical possession of the land by his own act of trespass, warranting the 1st Defendant to file a Motion for the trial Court to restore possession to him till the determination of the suit.
He submitted that the law does not recognize concurrent possession by two adverse claims to title and a trespasser cannot take possession by his own act of trespass. He referred to the case ofInternational Beer & Beverages Ind. Ltd vs. Mutunci Co. (Nig.) Ltd. (supra) where it was held that a person who had a title over a piece of land though not in physical possession but in defacto, is deemed in the eye of the law to be the person in possession because the law attaches to title and ascribed it to the person who has title. Such possession is the legal possession which is sometimes called constructive possession. Conversely, a trespasser, though in actual physical possession of the land is regarded in law not to be in any possession since he cannot by his own wrongful act of trespass acquire any possession recognised at law. He submitted that the Appellant presented a more cogent, concrete and compelling facts proving his case than the Respondent. He therefore urged this Court to resolve the third issue in favour of the Appellant, allow the appeal, set aside the judgment of the lower Court and then enter judgment in favour of the Appellant.
In respect of the Respondents’ first issue i.e. whether the lower Court was right in dismissing the Appellant’s case, it was submitted that by paragraph 7 of the Appellant’s Amended Statement of Claim filed on 23/9/2009, he anchored his claim over the land in dispute on traditional history when he pleaded that the land known as and called Uhu-Umuahu originally belongs to the Anumudu family of Umuahu Orji, Uratta and that Anamakoronye Anumudu as Head of Anumudu family signed the memorandum of sale of the said property on the 4th February, 1964.
He then cited the cases of Adedeji vs. Oloso (2007) ALL FWLR Part 358 page 610 at 617, Eze vs. Atasie (2000) FWLR Part 13 page 2180 at 2183, Alechenu vs. Oshoke (2002) FWLR Part 85 page 281 and 284 and submitted that a plaintiff who has identified himself with one of the methods of proving his ownership of a piece of land is not allowed to shift his ground of proof without amending his pleadings accordingly, and, where a plaintiff by his pleading and evidence relies on traditional history for his root of title to land, he fails or succeeds on that history. He then argued that the Appellant who anchored his claim over his land in dispute on traditional history and traced his root of title to Anumudu family failed to prove the same.
He stated that in law, where a person traces his title to a particular person, it is not enough to stop there. He must go further to prove how that person got his own title or came to have the title vested in him. He referred to the evidence of CW2 under cross-examination that he knew the family of Igwe Egbuokporo who were the original owners of the land before they sold it to Azuome who in turn sold it to the 1st Defendant.
He submitted that the Claimant and CW2 made inconsistent assertions and that it is trite law that parties are not permitted to make inconsistent assertions on the same question of fact or adduce inconsistent evidence over one and the same issue. Therefore, where the traditional history and root of title to land set out by a party is found to be inconsistent and contradictory, title to land has not been proved. Evidence given by y a witness against the party who called him is an admission against that party and it carries a heavy weight. It was then argued that the admission of C.W.2 contradicted the Appellant’s contention that the land in dispute originally belonged to Anumudu family but supports the case of the Respondents that the land originally belonged to Egbuokporo Family who sold the land to the 1st Respondent through Igwe Egbuokporo as Head of Ogbuokporo Family in 1964 and the 1st Respondent later sold the same to the 2nd Respondent in 1976.
Learned Counsel recounted the contentions of the 2nd Respondent that the land in dispute originally belonged to Egbuokporo Family of Umuohu, Orji Uratta in Owerri North Local Government Area of Imo State, that Egbuokporo Family sometime in 1964 sold the land in dispute to the 1st Respondent through Igwe Egbuokporo who was the Head of Egbuokporo Family. The 1st Respondent in 1976 resold the same to the 2nd Respondent with Igwe Egbuokporo signing as witness to the transaction. The 2nd Respondent upon purchase of the said land took effective possession of the same but allowed the 1st Respondent on the estate as his tenant. The 2nd Respondent called a total of four witnesses including D.W.2, Kennedy Egbuokporo, the son of Igwe Egbuokporo who as the Head of Egbuokporo Family sold the land to the 1st Respondent in 1964 and who also signed as a witness when the 1st Respondent resold the same to the 2nd Respondent in 1976. He stated that the 2nd Respondent?s evidence was corroborated in all material facts by all the Defence witnesses. Learned Counsel then submitted that the 1st Respondent having divested himself of title over the said land in 1976 had no title whatsoever left in him to transfer to anybody subsequently including the Appellant.
It is trite law that where two competing parties traced their title to a common grantor, the later in time must give way to an earlier one and the later in time cannot maintain an action against the one who first obtained title or interest in the property. He contended that as at 1987 when the Claimant alleged that the land in dispute was resold to him by the 1st Respondent, the 1st Respondent had no property to convey to the Claimant having divested himself of the title in the land in dispute since 1976. He made reference to the cases of Olukoya vs. Ashiru (supra); Ajoku vs. A. G., Rivers State (2006) All FWLR Part 312 page 2147 at 2164 and Maikulami vs. Gashigar (2011) All FWLR Part 597 page 668 at 691-622 and urged this Court to resolve the issue in favour of the Respondents.
Arguing in respect of the Respondents? second issue, that is to say, ‘whether the lower Court did not consider the validity of the Amended Statement of Defence filed after the requisite period without the leave of Court’, it was submitted that the lower Court duly considered the implications of filing an Amended Statement of Defence by the Respondents after seven days period allowed them without the leave of the lower Court on the strength of the provisions of Order 5 Rule 1 of the Imo State High Court (Civil Procedure) Rules, 2008. Since the Appellant did not raise the issue timeously, such non-compliance becomes a mere irregularity which does not vitiate the processes i.e. Statement of Defence. He argued that the Appellant did not appeal against the finding of the lower Court and as such the said finding subsists. He cited Oputa vs. Ishida (1993) 3 NWLR Part 279 page 34 at 50-51; in support. He further referred to Nneji vs. Chukwu (1988) 3 NWLR Part 81 page 184 and stressed that the Courts these days are more concerned with doing substantial justice than being slavish to the Rules of Court therefore the lower Court was right in treating the non compliance as an irregularity in order to decide the case on the merits instead of relying on technicalities of non compliance with Rules of Court. He urged this Court to determined issue two in favour of the Respondents.
The Appellant’s first issue which is similar in con with the Respondents’ issue No. 2, complains about the trial Court’s recognition and consideration of the Defendants’ Amended Statement of Defence that was filed out of time and without a further leave of the Court below or an order of the Court extending the time within which that ought to have been filed. The Appellant argued that the Respondents failed to comply with the time within which they ought to have filed their Amended Statement of Defence and that rendered the said process incompetent and it ought not to have been taken cognisance of by the Court below. The Respondents contended that the issue was not timeously raised by the Appellant before the lower Court, and even at that, it was a mere irregularity that would not vitiate the process as expressed by the lower Court.
There is no disputation that the Defendants’ Amended Statement of Defence was filed out of the time originally granted them and without further leave of the Court below. The time obliged them by the lower Court to file their amended pleading elapsed and the next option they explored, intentionally or unintentionally, was to file their said pleading without resorting to the Court below for extension of time. The lower Court in its judgment observed that the Claimant failed to raise the issue timeously before or during the hearing and, as such, the said non-compliance becomes a mere irregularity in the light of Order 5 Rule 1 of the Imo State High Court (Civil Procedure) Rules, 2008 which does not vitiate the process i.e. Statement of Defence, etc.
Order 5 Rules 1 and 2 of the Imo State High Court Rules which deals with the effect of non-compliance with the Rules provide thus: ‘(1) Where at any stage in the course of or in connection with any proceedings there has, by reason of anything done or left undone, been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. (2) The Judge may give any direction as he thinks fit to regularise such steps. The Judge shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.’ Time was specifically mentioned therein.
It is quite distinct in Order 5 Rule 1 that failure to comply with the Rules of the Court below regarding the time stipulated by the Rules for the filing of any process such as the Respondents? Amended Statement of Defence or the time granted or extended by the Court for filing of any process, does not invalidate or weaken the effectiveness of the said process filed outside the time so granted. It is a mere irregularity that would not impact the validity of the said process.
The Supreme Court had repeatedly and categorically asserted that: “It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it was much too late for the other party to complain about such irregularity.” See Kossen (Nig.) Ltd. vs. Savannah Bank Nig. Ltd. (1995) 9 NWLR Part 421 page. The apex Court emphasised the point that ‘the appellants did not complain about the alleged irregularity until the suit was on appeal to the Court of Appeal. They took part in all proceedings before the trial Court and, it is too late in the day for them to complain about the non-compliance with Order 2 Rule 1 of High Court Civil Procedure Rules of Plateau State.’
Then in the case of Ukiri vs. Geco-Prakla (Nig.) Ltd. (2010) 16 NWLR Part 1220 page 544, the Supreme Court, per Musdapher, J.S.C., (as he was) still on the effect of a Statement of Defence filed out of time succinctly expressed that: “It is settled law that the Courts are enjoined in the adjudication of disputes between the parties to do substantial justice and not to have an undue regard to technicalities. This Court in the case of United Bank For Africa Ltd. vs. Dike Nwora 1978 11 – 12 SC 1 at 6 – 7 held that a Statement of Defence filed out of time and in contravention of the rules of Court was not a void document and remains “a valid document until set aside.” Fatayi- Williams, J.S.C., (as he then was) stated in that case:- “If a defence has been put in, though irregularly, the Court will not disregard it, but will see whether it sets up grounds of defence which, if proved, will be material and if so, will deal with the case in such manner that justice can be done.”
To further buttress it’s liberal approach to the pleadings filed in contravention of the Rules of Court the Supreme Court in the case of Nishizawa Ltd. vs. StritchandJethwani (1984) 1 ANLR page 470, per Oputa, J.S.C., recognised that in its former decision, it was held that a Statement of Defence filed in contravention of the Rules, (there the statement of defence was filed out of time) “though irregularly filed” was not a nullity but avoidable document which “remains a valid document until it is set aside.” Also in Ayanwale & Ors. vs. Atanda &Anor (1988) 1 NWLR Part 68 page 22 the Supreme Court, per Wali, J.S.C., in a situation where Statement of Claim was filed and served out of time without protest, clearly expressed that: “Where a Statement of Claim was filed out of time, served on the defendant as such and the latter filed a Statement of Defence without protest and allowed the case to proceed to trial and final determination, it would be too late for such defendant to complain on appeal, against the statement of claim. See V. M. Okwechime v. Philip Igbinadolor (1964) NMLR 132.”
This Court, per Baba, J.C.A., in Mana vs. P.D.P &Ors. (2012) 13 NWLR Part 1318 page 579 had held that ‘Once a defence has been filed, the Court must consider it before delivering its judgment, it cannot turn a blind eye to it even if it was filed out of time. In Buhari vs. Obasanjo (supra) Salami, J.C.A., (as he then was) held among others as follows:- “The Court could no longer dispense with the filing of reply, the Petitioners having admitted in the ground for seeking the reliefs that the two sets of Respondents had in fact, filed their respective replies. Assuming without so deciding that the Respondent filed their respective replies irregularly this Court cannot ignore them. A defence put in irregularly has to be taken into account in the trial. The Court cannot close its eyes to the existence of both replies. See UBA vs. Nworah (1978) 2 LRN Page 149, (1978) 11 – 12 S. C. Page 1.
In the circumstance, the Petition has to be contended in the light of the defence already proffered in the two replies. It is too late in the day to dispense of an act which had already been accomplished. Also in the case of:- Oteju vs. Magma Maritime Services Ltd (Supra) it was held among others that:- “The law is settled that if before judgment is entered, the Defendant serves a defence even though it is out of time, a Court of trial must never ignore it.”
There is no point over-stretching this issue. Both the Rules of the lower Court and numerous Supreme Court and this Court’s decisions had vindicated the Court below, that it was right in its decision to have treated the anomaly as a mere irregularity that does not impact on the validity of the process, that is, the Respondents? Amended Statement of Defence. I therefore resolve issue No. 1 in favour of the Respondents.
Issues two and three will be considered together as they point to the evidence proffered in proof of the reliefs sought. The Appellant at paragraphs 9 and 10 of his Amended Statement of Claim explained how the 1st Defendant approached him in 1987 through one Emmanuel Agu of Orji and communicated his decision to sell his (1st Defendant?s) property of which he signalled his intention to purchase. After inspection of the property and negotiation of the price, the Appellant paid the purchase price of N20,000.00 to the 1st Defendant who thereafter executed a Power of Attorney in his favour. It was not until 1994 he heard of the interference of one Mr. Mark Amamasi over the property and then confronted the 1st Defendant with it. The Respondents for their part, averred in paragraph 6 of their Amended Statement of Defence that the 3rd Defendant, Dr. D. O. Amamasi purchased the land from the 1st Defendant at the precise of N41,000.00 in 1976 which was evidenced by Sale Agreement dated the 20th July, 1976. Then on 11/2/1988, the 1st Defendant executed a Power of Attorney in favour of the 3rd Defendant which then incorporated the original unregistered conveyance between the 1st Defendant and Igwe Egbuokporo as Head of Egbuokporo Family of Umuahu, Orji Uratta, Owerri North L. G. A., Imo State, the original owners of the land in dispute dated 4/2/1964. The parties proffered their respective evidence which the trial Court considered in great depth.
In the trial Court, C.W.2., the Appellant’s witness whom the Appellant claimed that informed him about the 1st Defendant?s intention to sell his land, confirmed that the transaction between the Claimant and the 1st Defendant took place between 1987 and 1988. His father and himself witnessed the transaction. He said he investigated the title and he knew the family of Igwe Ogbuokporo of Orji, the original owners of the land in dispute before they sold it to Azuoma who in turn sold to the 1st Defendant. This sharply contradicted the evidence of C.W.1 that that it was not to his knowledge that the land in dispute originally belonged to Egbuokporo Family of Umuahu Orji, Uratta. C.W.1 said it is not true that Egbuokporo sold the land in dispute to the 1st Defendant, rather it was Anamakoronye?s and Anumudu?s Families, the original owners, that signed Exhibit D, the Power of Attorney which was superior to the Egbuokporo Family. The 3rd Defendant testified as D.W.1 and was fully cross-examined.
Then one Kennedy Igwe Egbuokoro testified as D.W.2 and adopted his Witness Statement on Oath as his evidence in chief. He identified the signatures on Exhibits H and G as those of his late father. He denied all the assertions of the Appellant during cross-examination. Thereafter, one Patrick Azuoma Anumudu testified as D.W.3 and denied under cross-examination that Anamakoronye Anumudu was once the Head of his family. He said it is not true that in the past the Igwe Ogbuokporo Family and Anumudu Family owned land in common. He admitted that the land in dispute belonged to the Igwe Ogbuokporo Family and it is situated on the right side of the road leading from Owerri to Osigwe while the Anumudu Family land is on the left side. He said it is not true that Anamakoronye sold the land in dispute to the 1st Defendant in 1964.
The wife of the 1st Defendant, Mrs. Innocent Okereke gave evidence as D.W.4. She identified the signatures on Exhibits F and G as those of her husband whom she said was lying ill in their house in Agwu, Enugu State. She said that her husband did not tell her that he sold any land to the Claimant, Sunday AmadikwaOkorie.
I must observe that not only that I find these mind-blowing, they are also, mind-boggling, because all those the Appellant ought to have called to testify on his behalf and in support of the averments in his pleading, including the alleged original owners of the land and the wife of the 1st Defendant, who allegedly sold the land to him, and, whom he did not call as witnesses, attended the proceedings and adduced evidence in support of the averments of the 2nd and 3rd Defendants. Not an ounce of the Appellant’s evidence buttressed his claims. The trial Court then rightly found that:
‘the Memorandum of Sale dated 4/2/64 made between Igwe Ogbuokporo and the 1st Defendant which has been shown to relate to the land in dispute validly transferred the interest Igwe Ogbuokporo had in the land in dispute to the 1st Defendant who took immediate possession and built a house on the land in dispute and that the sale of the land in 1976 vide the Memorandum of Sale between the 1st Defendant and the 2nd Defendant validly transferred the 1st Defendant?s interest in the land to the 2nd Defendant as the 2nd Defendant took over possession of the land and put tenants in the land and collected rents. The Court below went further to hold that: ?having divested himself of the interest in the land in dispute in 1976, the 1st Defendant had no estate in him to transfer to the Claimant in 1987 especially as C.W.2 did not in his evidence in Court identify his signature on Exhibit D and that of the 1st Defendant to prove due execution of Exhibit D by the 1st Defendant.’
The Appellant had argued that the above opinion expressed by the Court below is perverse and that Exhibit F is not an instrument of transfer of title to land and that it could not have been relied upon by the Court. It is evident in the pleadings of the parties and the evidence led by them that they claimed their roots of title from a common donor i.e. the 1st Respondent in this appeal. The Appellant allegedly purchased the land in dispute from the 1st Respondent in 1987 whereas the 2nd Defendant, the father of the 2nd Respondent in this appeal, purchased the said land from the 1st Respondent in 1976 and took possession of the said property. Later, on 11/2/1988, a Power of Attorney was executed in favour of the 3rd Defendant and on the 14th December, 1995, it was registered as No. 59 at page 59 in Volume 762 of the Lands Registry, Owerri.
The law in respect of registration of title is firmly settled that if both competing deeds are registered, each takes effect as against the other from the date of registration. This is because, the benefit of an earlier registration, is preserved. See the case of Rebecca Amankra vs. Zankley (1963) 1 ANLR 304. In other words, where there exists two competing conveyances which have been duly registered, each takes effect as against the other, from the date of registration’ so that the one executed earlier, loses its priority, if it was registered later in point of time. See the case of Tewogbade vs. Mrs.Obadina (1994) 4 SCNJ (Pt. 1) at 176; (1994) 4 NWLR (Pt.338) 326 – per Iguh, JSC. The applicable principle of law has always been that the latter in time of the two parties to obtain the grant, cannot maintain an action against the party who first obtained a valid grant of the land from such common grantor. This is because, the grantor having successfully divested himself of his title in respect of the piece of land by the first grant, would have nothing left to convey to a subsequent purchaser under the elementary principle of nemodat quad non habet as no one may convey what no longer belongs to him. See Boulos vs. Odunsi (1958) WRNLR 169; Odunsi vs. Boulos (1959) SCNLR 591; Coker v. Animashaun (1960) LL.R 71; Adams Akeju & Anor. v. Chief Suenu & Ors. (1935) 6 NLR 87; Okafor Egbuche vs. Chief Idigo (1934) 11 NLR 140.” Per Ogbuagu, J.S.C. (Pp.44-45, Paras.C-D).
Also, and by way of an illustration, if a party received title to land under Native Law and Custom and entered into possession and the same Vendor conveyed the same land to another purchaser executing a deed of conveyance, any claim that the first party’s equitable interest was cut off by the latter “bona fide purchaser”, would in law and certainly not be upheld. See Amao vs. Adebona (1962) LL. R. 125. So that if there is proof that money was paid for the land coupled with an entry into possession it is sufficient to defeat the title of a subsequent purchaser of the legal estate if and provided that the possession is continuously maintained. See Soremekun vs. Shodipo (1959) LL.R. 30 and Oresanmi vs. Idowu (1959) 4 FSC 40. Thus, if even it was an equitable interest, but it is coupled with possession, it cannot be overridden by a legal estate.
Further in Ohiaeri vs. Yussuf (2009) 6 NWLR Part 1137 page 207, the Supreme Court, per Tabai, J.S.C., opined that: ‘The established legal principle is that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person.
This principle was examined in considerable details and applied in Ayinla v. Sijuwola (1984) N.S.C.C. 301 at 312 where the Supreme Court per Nnamani JSC expanding the principle had this say:- “if a party received title to land under native law and custom and entered into possession and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bonafide purchaser would not be upheld. See Amao vs. Adebona (1962) L.L.R 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T.A. Orasanmi vs. M. O. Idowu (1959) 4 F.S.C 40. More close to the contention herein is the decision in Soremekun vs. Shodipo (1959) L.L.R. 30 to the effect that if land is sold to a party without executing a formal deed of conveyance, his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decision of the Privy Council in Oshodi vs. Balogun & Ors. 4 W.A.C.A page 1 at 6 and Suleiman & Ors. vs. Johnson 13 W.A.C.A. 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time, the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate…. ”
It is crystal clear in the judgment of the lower Court that it considered all the material evidence supplied to it by the Appellant before it came to the conclusion that the case of the Appellant was caught up by the doctrine of priorities. The law resonated through all the Supreme Court cases referenced above. It is an ossified principle of law that given the circumstances of this case and the obvious facts clearly presented by the parties, the Appellant was completely unable to discharge the onus on him. He could not even prove his case before the lower Court. The people he claimed had connection with sale of the land to him testified in favour of the Respondent. Accordingly issues 2 and 3 are hereby resolved in favour of the Respondents. In the light of the reasons given above, I find no merit in this appeal and hereby disallow the same. The same is hereby dismissed by me with no order as to costs.
ITA GEORGE MBABA, J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in advance the erudite Judgment of my learned brother, Hon. Justice Theresa Ngolika Orji-Abadua, JCA. and I agree completely with his stance that in view of the fact that Issues 2 and 3 were resolved in favour of the Respondents, the Appellant’s Appeal cannot be sustained as this Court has upheld the reasoning and conclusion of the Lower Court that the Appellant has no locus standi to sue the Respondents. This Appeal is accordingly dismissed with no order as to costs.
Appearances:
G. KilliweNwachukwu, Esq.For Appellant(s)
T.D.O. Onyejurueze, Esq.For Respondent(s)
