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VINCENT v. NWOBODO (2021)

VINCENT v. NWOBODO

(2021)LCN/15867(CA)

In the Court of Appeal

(ENUGU JUDICIAL DIVISION)

On Monday, May 10, 2021

CA/E/451/2016

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

UZODIKE VINCENT APPELANT(S)

And

INNOCENT NWOBODO Suing By ATT: F. N. NNAMANI RESPONDENT(S)

 

RATIO

WHETHER OR NOT DECLARATORY RELIEF IS ONLY GRANTED WHEN CREDIBLE EVIDENCE IS LED BY THE PERSON SEEKING THE RELIEF

It is the law that a declaratory relief will only be granted when credible evidence has been led by the person seeking the declaratory relief. The person seeking the declaratory relief must plead and prove his claim for the declaratory relief. Such declaratory relief will not be granted even on admission by the defendant. See Matanmi & Ors. v. Dada & Anor (2013) LPELR 19929 SC; Anyanru v. Mandilas Ltd (2007)4 SCNJ 288 and Chukwumah v. S.P.D.C. (Nig.) Ltd (1993) LPELR – 864 SC p.64-65. PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was the Respondent in Appeal No. CA/E/285/17 and he was the Defendant/Counterclaimant in the suit at the trial Court which dismissed his counterclaim.

The counterclaim of the Appellant against the Respondent was for the following:
“i. AN ORDER OF PERPETUAL INJUNCTION restraining the Plaintiff, his agents, servants, privies, or any person whatsoever acting on his instructions from further illegal entry, occupation, constructions or development or building on the Defendant’s land.
ii. A DECLARATION that the Irrevocable Power of Attorney donated by Umuchigbo Iji Nike in favour of Dr. Levi Muonanu registered as No. 78 at page 78 in Volume 1489 at the Land Registry Enugu, is null, void and of no effect.
iii. A DECLARATION that the Unregistered Deed of Assignment made between Dr. Levi Muonanu and Dr. Innocent Nwobodo on 3rd day of November, 2001 together with the consent made on behalf of Umuchigbo Iji Nike Community is null, void and of no effect as same is contrary to the provision of the Land Use Act 1978.
iv. A DECLARATION that the Defendant’s Deed of Sublease made between NECI Land Development Corporation Limited and the Defendant, registered as No. 96 at page 96 in volume 911 at the Deeds Registry Enugu is valid and subsisting.
v. A declaration that the Defendant is entitled to the grant of Statutory Right of Occupancy in respect of plot CR/3 New Town Layout Enugu East LGA, Enugu contained in the Sublease dated February 23rd, 1978 and registered at the Land Registry Enugu as No. 96/96/911.
vi. 20 Million Naira general and Special Damages for trespass.

The case of the Appellant in the High Court (the Court below) was that the land in dispute was one of three plots he purchased in 1978 from a company called NECI Land Development Corporation Limited. The said parcel of land is known as plot CR/3.

The Respondent (as plaintiff) in the Court below called one witness PW2 who said that he purchased the land in dispute in 2002 from the original owners, the Umuchigbo Nike Community and sold it to the Respondent in 2006.

​The Court below considered evidence adduced by the parties. It dismissed the claim of the Respondent who was plaintiff. It dismissed the counterclaim of the Appellant who was the defendant.

This is the appeal of the defendant/counterclaimant/Appellant. The Appellant appealed by a notice of appeal filed on 30th October, 2014. The notice of appeal has only one ground of appeal. From the ground of appeal, the Appellant formulated the following issue for determination: Whether the trial Court was right in dismissing the defendant’s counterclaim.

The Respondent formulated the following issue for determination:
Whether the Court was right in dismissing the counterclaim of the Defendant/Appellant when due regard is had to the evidence placed before it.

Arguing the appeal, learned counsel for the Appellant contended that the Respondent did not reply to the counterclaim of the Appellant and this amounted to admission. The Appellant, he submitted, proved his counterclaim for a declaration that he is entitled to the grant of statutory right of occupancy in respect of the land.

​Learned counsel for the Respondent contended that the Appellant does not know the land he is claiming. That he could not show with certainty the identity of the land for the Court to be satisfied and to enter judgment in his favour.

The Appellant counterclaimed for declaration of title to the land; among other reliefs. It is the law that a declaratory relief will only be granted when credible evidence has been led by the person seeking the declaratory relief. The person seeking the declaratory relief must plead and prove his claim for the declaratory relief. Such declaratory relief will not be granted even on admission by the defendant. See Matanmi & Ors. v. Dada & Anor (2013) LPELR 19929 SC; Anyanru v. Mandilas Ltd (2007)4 SCNJ 288 and Chukwumah v. S.P.D.C. (Nig.) Ltd (1993) LPELR – 864 SC p.64-65. As the Appellant’s counterclaim was for declaration of title to the land, it did not matter if the Respondent did not reply to the counterclaim. It was necessary for the Appellant to lead credible evidence in proof of the counterclaim. The Appellant testified to the fact that he purchased the disputed land with two other plots in 1978 from NECI Land Development Corporation Limited. That at the time the PW2 purportedly bought from the community, the community had been divested of title to the land. It is instructive to note that the PW2 purportedly bought the land long after the Appellant was granted title in 1978. The Respondent claimed that PW2 got title from the community in 2002. As I have shown earlier in the sister appeal No. CA/E/285/17 Respondent tendered Exhibit B showing that PW2 purchased the land in 1994 but the PW2 himself said he bought the land on 2002. This makes the Respondent’s case unreliable.

Evidence of DW1 and DW2 on the other hand despite rigorous cross examination was not discredited. On the evidence of these two witnesses and Exhibit F, the Appellant was entitled to judgment in his favour with regards to some of the reliefs sought in the counterclaim.

The only issue formulated by the Appellant is resolved in his favour and against the Respondent.
Appeal allowed. The judgment of the Court below dismissing the counterclaim is set aside.

In its place is entered judgment in favour of the counterclaimant/Appellant in the following terms:
1) It is hereby declared that the Defendant/ Appellant’s deed of sublease made between NECI Land Development Corporation Limited and the Defendant/Appellant registered as No. 96 at page 96 in volume 911 at the Deeds Registry Enugu is valid and subsisting.
2) It is further declared that the Defendant/ Appellant is entitled to the grant of statutory Right of Occupancy in respect of plot CR/3 New Town Layout Enugu East LGA, Enugu contained in the sublease dated 23rd February, 1979 at the Land Registry Enugu as No. 96/96/911.
3) An order of perpetual injunction is hereby made restraining the Plaintiff/Respondent, his agents, servants, privies or any person whatsoever acting on his instructions from further illegal entry, occupation, constructions or development or building on the Defendants/Appellant’s land.
4) Defendant/Appellant is awarded N500,000.00 general damages for trespass into the land by the Plaintiff/Respondent.
5) Defendant/Appellant is awarded N100,000.00 costs to be paid by the Plaintiff/Respondent.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The Appellant herein, who had counter claimed in the suit that led the sister Appeal Number CA/E/285/2017 just delivered, had his counter Claim dismissed.

A review of the said decision, in the evidence led by the DW1 and DW2 showed that the counter claimants had established their counter claim on the preponderance of evidence.

They had acquired a right from their vendor who had a right since 1978, by purchase, which title preponderated over that of the Respondent herein; who was the Plaintiff at the trial Court.

I concur in the conclusion allowing the appeal and also in the consequential reliefs granted in the lead judgment by my lord J.S. Abiriyi, JCA.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I was opportuned to read before now the judgment just delivered by my learned brother, James S. Abiriyi, JCA. I am in entire agreement with his reasoning and the conclusion he arrived at in allowing the appeal.

​I too allow the appeal and abide by all the consequential orders including the order as to costs.

Appearances:

Appellant’s counsel applied for an adjournment For Appellant(s)

C. C. Nwankwo Esq. for the Respondent.

B. C. Nwobodo Esq. argued the appeal for the Respondent. For Respondent(s)