OBI v. NZEWUIHE & ANOR (2020)

OBI v. NZEWUIHE & ANOR

(2020)LCN/15233(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 27, 2020

CA/OW/221/2017

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

EJESHI OBI APPELANT(S)

And

1. LUGARD OMENI NZEWUIHE 2. KELECHI OMENI NZEWUIHE RESPONDENT(S)

RATIO

WHETHER OR NOT A PLEADING NOT CONTROVERTED OR SPECIFICALLY DENIED IS DEEMED ADMITTED BY THE PARTY THAT FAILED TO DENY THE SAME

This case was fought on pleadings, and by the rules of engagement, any pleading by a party that is not controverted, or specifically denied, is deemed admitted by the party that failed to expressly deny the same. This is an elementary principle of law relating to contestations in both affidavit evidence and suits caught by pleadings. SeeNDIC Vs Balonwu &Ors (2017) LPELR – 41963 CA; Otto Vs Mabamije (2004)17 NWLR (Pt.903) 489; and Alabi Vs Audu (2017) LPELR – 42872 CA, where it was held, succinctly, by this Court that:
“The primary purpose of pleadings is to prepare the minds of the parties and the Court to know the case to be presented at the trial by each party, and to define the delimit with clarity and precision the real matters in controversy between the parties upon which to prepare and present their respective cases. It is designed to bring the parties to an issue upon which the Court will adjudicate between them. See Kyari Vs Alkali (2001)11 NWLR (Pt.724) 412 at 433 – 434 paras H – A. It is therefore of utmost importance that both parties be comprehensive and accurate in their pleadings. In that regard, a plaintiff’s averment of facts must be met by the defendant frontally and categorically. The essential averments in the statement of claim should be specifically traversed… there must be a proper traverse … Therefore, every allegation of fact, if not denied specifically or by necessary implication, shall be taken as admitted and established. Putting it in a different way, where a party fails to join issues on material averments, he is deemed to have conceded the points made in those averments. They are deemed admitted and need no further proof to establish the facts contained in the pleadings. See Ekperanisho Vs Aloko (2015)14 NWLR (Pt.1475) 153; Salzgitter Slahi GMBH Vs Tanji Dosunmu Industries Ltd (2010) NSCQR 1085…” Per Akomolafe – Wilson, JCA.
See also Unity Life & Fire Insurance Co. Ltd Vs International Bank of West Africa Ltd (2001) LPELR – 3412 SC, where the Supreme Court held:
“In this connection is necessary to stress not only that evidence at the trial must be directed and confirmed (sic) (confined) to the proof or disproof of the issues as settled by the pleadings but that it is not open to a defendant, such as the present appellant to rely on defences which it should have but had not pleaded at the trial because the plaintiff, such as the owing to his failure to plead such new defences in his pleadings, lost the opportunity of calling evidence to controvert than (Per Iguh JSC). PER MBABA, J.C.A.

DEFINITION OF A POWER OF ATTORNEY

Of course, a Power of attorney, by law, is merely a warranty to the Donee to exercise certain powers on behalf of the Donor, thereof. It does not transfer interest in the property and alienate it in favour of the donee, as there is underlining understanding that the donee remains accountable to the Donor in the relationship. See Ude Vs Nwara (1993) LPELR – 3289 SC; (1993) 2 NWLR (Pt.278). In my opinion, in power of attorney, the underlying relationship remains that the Donee is the agent or servant of the Donor, to act at the pleasure of the Donor, as per the duties assigned in the power of attorney donated to him – Donee. SeeNweke and Ors Vs Nweke (2014) LPELR – 23563 CA, when it was held:
“The donee of the power does not become the owner of the property by virtue of the appointment. He remains the agent of the owner of the property, even if the power is irrevocable, and the ownership right of the property remains in the owner of the property.” Per Agim JCA, who founded on case of Ude Vs Nwara supra. See also Chime & Ors Vs Chime &Ors (2001) LPELR – 24858 SC. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the decision of Imo State High Court in Suit No. HOW/398/2012, delivered on 3/5/2016 by Hon. Justice N.B. Ukoha, wherein the learned trial judge gave judgment to the Plaintiffs and dismissed the counter claim by the Defendant.

At the trial Court, the plaintiffs (now Respondents) had sought the following reliefs against the Defendant (now Appellant):
“A declaration that:
i) The 1st and 2nd claimants are entitled to the statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being at Odoakpi Umuorii Uruata in Owerri North Local Government Area of Imo State.
ii) The entry of the Defendant by himself or through his agents into the said piece or parcel of land without the leave, license or approval of the claimants amounts to trespass.
B) An order or perpetual injunction restraining the defendant by himself or through his agents, servants hirelings or privies from further entry into or howsoever interfering with the Claimants’ possession of the and piece or parcel of land.
C) N5,000,000.00 (Five Million Naira) damages for trespass.”
(See page 6 of the Records of Appeal).

The Defendant, upon being served with the processes, filed a defence and raised a counter-claim, seeking:
1) N5,000,000.00 being the cost of gate removed by the claimants.
2) N5,000,000.00 for trespass into the defendant’s land by the claimant (sic).
3) N1,000,000.00 general damages.
(See page 17 of the Records of Appeal).

After hearing the case and considering the evidence and addresses of Counsel the trial Court held, as follows, on page 86 of the Records:
“I have seen the reliefs sought by the parties which I had earlier reproduced. The Claimants having proved that they have a better title to the land in dispute are entitled to some of their reliefs. In that wise reliefs (ai) and (b) of the claimants are hereby granted. With respect to relief A(ii), in the cause of trial, evidence showed that the DW2 sold the same piece of land to both the claimants and the Defendant. It does appear that at the time the defendant was claiming possession over the land, he may have been doing as Innocent purchaser without knowledge of the claimants’ better right/title over the land in dispute. It therefore follows that as at the time the defendant was entering into the land he believed that he is an Innocent purchase (sic) without notice of any incumberance. In that wise relief A(ii) of the Claimants’ relief is refused. In the same vain (sic) relief (c), dealing with the same cost N500,000 (sic) as general damages is equally refused. I have equally, seen the reliefs the defendant is claiming in his counter claim. Relief (i) of the defendant’s counter claim is not obtainable, because the defendant, even in answer to cross examination by the claimants’ counsel, admitted that the claimants gave him back the gate which he installed but removed by the claimants… Accordingly while the claimants reliefs A(i) and (b) were proved and accordingly granted, the reliefs of the defendant in his counter claim are refused and accordingly dismissed.

That is the judgment Appellant appealed against, as per the notice and grounds of Appeal on pages 87 to 88 of the Records of Appeal. Appellant filed Brief of argument on 5/6/2018, which was deemed duly filed on 19/6/2018, wherein Appellant raised 2 issues for the determination of the appeal, as follows:
1) Whether the transaction between the Respondents and the Eze (Dr) Akujobi Osuagwu contained in a power of attorney dated 2/4/04 transferred proprietary interest in the land referred to therein to the respondents. (Ground 1).
2) Whether the receipt of purchase by Eze (Dr) Akujobi Osuagwu in favour of the Appellant conferred any interest at all in the Appellant in relation to the land stated therein.” (Ground 2).

The Respondents filed their Brief of argument on 29/11 2018, which was deemed duly filed on 19/2/2019. In their Brief, Respondents said the two issues donated by Appellant for the determination of the Appeal did not represent the case as presented by the parties and decided by the lower Court. But they failed to formulate their own issues and rather referred us to the issues as distilled by the parties at the lower Court. Of course, this appeal shall be considered on the issues as distilled by the Appellant, as the Respondents had conceded that the Court should decide the appeal on the issues distilled by the Appellant. (See paragraph 3.3 of the Respondent’s Brief).

The Record of this Appeal was regularized on 15/3/2018, while the Appeal was argued on 17/3/2020, when it was fixed for re-argument, and the briefs before the Court were deemed argued, pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
In his brief of argument, Counsel for Appellant, S. Amadi Obi Esq, who settled the brief, on issue 1, said the trial Court was wrong to say that a power of attorney transfers title in land; he said that the transaction between the respondents and the Eze (Dr.) Akujobi Osuagwu, contained in a power of attorney (Exhibit B), issued on 2/4/04 by DW2 did not transferred proprietary interest in the land therein to the Respondents. Counsel cited cases to say that Power of attorney does not transfer title to land. See Ude Vs Nwara (1993) LPELR – 3289 (SC); (1993)2 NWLR (Pt.278) 638; Nwachukwu Vs Awka MFB Ltd (2016) LPELR – 41055 (CA); Ngura Vs Achikwu (2015)9 NWLR (Pt.1463) 47; UBN Ltd Vs Sax (Nig) Ltd (1994) 8 NWLR (Pt.361)150.

Counsel referred us to the Exhibit B (the power of attorney) and said that, by its content, it did not give or purport to give titles; that clear and unambiguous words contained in a document, or contract or agreement by parties should be given their simple and ordinary meaning.Union Bank of Nigeria Ltd Vs Sax (Nig) Ltd (supra).

Counsel further said that the trial Court did not also look at the Appellant’s defence, which did not traversed as the Respondents did not file a Reply to the averments raised in the counter-claim; that the Respondents had therefore admitted the said averments. He relied on Mabamije Vs Otto (2016)13 NWLR (Pt.1529)171.

Counsel further argued that the transfer of interest to the Appellant in 1997 preceded that of Respondents, made in 2004, thus the DW2 did not have a transferrable interest in the subject matter to transfer to Respondents; that where the equities are equal, the first in time supersedes. He relied on AUTA Vs IBE (2003)13 NWLR (Pt.8370) 247.

On issue 2, whether the receipt of purchase issued by Eze (Dr) Akujobi Osuagwu, in favour of Appellant, conferred any interest, of all, in the Appellant in relation to the land stated therein, Counsel answered in the affirmative. He relied on the case of Nsiegbe Vs Mgbemena (2007)10 NWLR (Pt.1042) 364, to the effect that:
“A purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument, which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate. In other words, the possession of a receipt by a party for payment for the sale of land and possession of the land by the party raise equitable interest which may be converted into a legal may be converted into a legal estate by specific performance.”

Counsel said the trial Court had acknowledged that Exhibit D (receipt of purchase) was admissible as such (page 84 of the Records), but later went on to discountenance the document by importing external reasons, which were not borne out by the evidence before the Court. Counsel said the extraneous facts which the trial Court imported into Exhibit D (which misled it to come to wrong conclusion) were:
a) If (the Court’s) valuation of the property, the subject matter of the suit, when the Court said: “The question not is, is it possible that the land the DW2 sold to the claimants for N1,000,000 (One Million Naira) in 2004 could be sold to the defendant for N8,000,000. (Eight Million Naira) in 1997”

Counsel noted that no evidence was led before the Court as to the value of the land at any given time.
b) The learned trial Court, went ahead to hold that the Appellant did not exercise any act of ownership over the land for more than 13 years; Counsel said that in coming to this conclusion, the judge did not take into account paragraph 6 of the statement of defence of the appellant (page 15 of the Records of Appeal), where Appellant averred:
“The said Dr. Eze Akujobi Osuagwu, upon sale to the defendant, appealed to the defendant to allow him to keep the paint manufacturing equipment on the land pending when the defendant wanted to use the land. The defendant obliged the said Dr. Eze Akujobi Osuagwu.”

Counsel said the Respondent did not deny the above averment, as they did not file answer to the defence and reply to the counter-claim. He said that the trial Court did not also consider the evidence of DW2, who said in his statement on oath that:
“… sometime in 2004 the claimants approached me to take over and manage the paint industry, I told them that I had sold the land but that I still own all the equipment and Obi Ejeshi is my cousin and will not mind if the paint industry is started up again, but that anytime he wants his land, they will have to stop operations and move the equipment.” See page 29 of the Records of Appeal”.

Counsel said the Respondents did not cross-examine DW2 on these material facts, which by implication, are deemed admitted. He relied on Gaji Vs Paye (2003)8 NWLR (Pt.837) 247.

He added that, in any case, possession of land is not only by actual physical possession, but can also be imparted by law, relying on Ameen Vs Amao (2013) 9 NWLR (Pt.135) 8159, and Adewole V Dada (2003)18 WRN 148, where the Supreme Court held:
“A person can certainly be in possession through a third party such as a servant, agent of tenant as in this case, also possession of a predecessor in title is in law declared to be continued by this successor.”

Counsel said Appellant herein was clearly in possession of the land, from the time he brought it, through the exercise of his right of ownership, when he allowed Dw2 to be in actual possession; he said that the learned trial judge at page 85 of the Records of Appeal found that Appellant purchased the land in dispute, but curiously, held that the Appellant purchased without notice of the encumbrances, which finding was not supported by evidences. Counsel said there was abundant evidence, that it was the Respondents that entered into transaction with DW2 letter in time, and who had notice of the Appellant’s ownership of the land; that the trial Court also found that the DW2 sold the land to the two parties at the same time! (Page 86 of the Records).
Counsel urged us to allow the Appeal and set aside the decision of the trial Court.

In his response, A.C. Nwaneri Esq., who settled the brief for Respondents, on issue one, said the parties were in agreement that the original owner of the land in dispute, by customary inheritance, was Ephraim Ofurum, who divested his interest in the said land to DW2, with power to deal with the land in dispute, including divesting himself of interest in the land; that the Respondents claimed interest in the land, by virtue of Exhibit B, contending that they paid N1 Million to DW2 for the said piece or parcel of land, which DW2 acknowledged receipt. Counsel said that the Exhibit B was registered as No.70 at page 70 in Volume 904 in the land Registry office in Owerri. Counsel acknowledged that Appellant had presented the Exhibit D, dated 28/4/97, made by DW2, for a consideration of N8 Million. Counsel argued that, while Appellants said that Exhibit B donated to Respondents by DW2 was power to ‘manage’ the property, the actual purport of the Exhibit ‘B’ transferred title and actually transferred title to the Respondents, as seen in the content of the power of attorney (Exhibit B), especially as the same was IRREVOCABLE. Thus, the DW2 divested himself of his interest in the property in favour of the Respondents.

Counsel further argued that assuming (without conceding) that Exhibit B did not confer title to the land on Respondents, that the fact that Respondents paid the purchase price (acknowledged by DW2) and took possession of the land, did confer on them (Respondents) interest in the land, which interest amounted to equitable estate in respect thereto. Thus, he argued the attempt to void the Power of Attorney (Exhibit B) as document of title amounts to blowing hot and cold in the same breath. He said that, by law, a purchaser of land who paid the purchase price and is put in possession thereof acquires an equitable interest that defeats a legal interest, except the person armed with that legal interest is a purchaser for value, without notice of the pre-exiting equitable interest. He relied on International Beer and Beverages Industries Ltd & Anor Vs Mutunci Company (Nig) Ltd (2013) All FWLR (Pt.670) 1253 at 1283 – 1284.

On Exhibit D, Counsel said the same was neither a registrable instrument nor a document of title and so does not equate or rank Pari Possu with Exhibit B, for the issue of competing documents of title originating from a common grantor to apply to both, a sought by Appellant, in paragraph 3.12 of Appellants brief. Counsel, however, admitted the position of law stated by Appellant, that:
“When two or more competing documents of title upon which parties to a land in dispute rely for their claim of title to such land originated from a common, grantor, the doctrine of priorities dictating that the first in time prevails, applies. This is pursuant to the maximum, “qui prior est tempore, who is first in time has the strongest right.” Auta Vs Ibe (2003)13 NWLR (Pt.837) 247.

Counsel said Appellant has no document to compete with the Respondent’s document (Exhibit B) in this case –Onimwense Vs Anw & Anor (2008) All FLWR (Pt.442) 1120. He also relied on Section 16 of the Land Instrument Registration Law, Cap 72 Laws of Eastern Nigeria, applicable in Imo State, on competing deeds as registered; that each takes effect as against the other, from the date of registration; that the benefit of earlier registration is preserved.

Counsel noted that the power of attorney relating to the and transaction of 28/4/97 (Exhibit D), between Appellant and DW2 was not tendered in evidence, and he urged us to invoke Section 167 (d) of the Evidence Act, 2011, against the Appellant, for withholding evidence, saying that the same would have been against him, if it had been produced. He relied on AG. Adamawa & Ors Vs Ware & Ors (2006) All FWLR (Pt.306) 860; Buhari Vs. Obasanjo (2005)13 NWLR (Pt.948) 1198.

Counsel also noted that Appellant did not appeal against the findings of the Court relating to how DW2 could have sold the land in 1997 for 8 Million Naira, only to sell the same for N1,000,000 in 2004, implying doubt about the said sale of 1997 for 8 Million Naira.
He urged us to resolve the issues against Appellant and to dismiss the Appeal.

RESOLUTION OF THE ISSUES
I think the two issues distilled by the Appellant for the consideration of this Appeal are apt, and should be taken together, as they relate to the same legal point, namely: Whether the transaction between the Respondents and the DW2 (Eze (Dr) Akujobi Osugwu), contained in the Power of Attorney dated 2nd April, 2004 (Exhibit B) transferred proprietary interest in the land referred to therein to the Respondents, considering the earlier transaction made by the same DW2 with the Appellant on 28th April 1997 over the land in dispute, as shown in Exhibit D and in the light of the evidence by the DW2 in this case.

In this case, the Appellant (as Defendant at the Court below) had filed a defence and counter-claim, and paragraphs 3 – 10 thereafter stated, as follows:
3) “The defendant denies paragraph 6 of the statement of claim in answer the defendant states that at no time did ownership in the land, subject matter of this Suit, pass to the claimants. The said EzeEkujobi (sic) Osuagwu the claimants allegedly bought from, had in 1997 sold the said land in dispute to the defendant and issued a receipt dated 28/4/97 for N8,000,000 (Eight Million Naira) as the cost of selling the said land to defendant
4) In further answer to paragraph 6 of the statement of claim, the defendant states that the said EzeAkujobi Osuagwu is his maternal Cousin, thus when the defendant paid the said Akujobi Osuagwu for the land in dispute, he told him that the documents were in Lagos and that he will send them across to him when he gets to Lagos.
5) In further answer to paragraph 6 of the statement of claim, the defendant avers that the land subject matter of this said Eze Akujobi Osuagwu (sic) and the equipments used for the production of the paint was on the land upon purchase by the defendant.
6) That the said Eze Akujobi Osuagwu, upon the sale to the defendant, appealed to the defendant to allow him to keep the paint manufacturing equipment on the land, pending when the defendant wanted to use the land. Thus, the defendant obliged the said Akujobi Osuagwu.
7) When, the defendant now wanted to establish a poultry farm on the said land, he informed the said Akujobi Osuagwu and asked him to remove his equipment.
8) The said Akujobi Osuagwu told the defendant to give him sometime as he had entered into a management agreement with some people to manage the said paint factory.
9) That defendant refused to give him more time and took possession of the land and put up a gate to secure the land which was already walled in.
10) That sometime later the defendant noticed that the gate was removed, he then confronted the said Akujobi Osuagwu who requested for more time to settle and compensate the people he entered into management agreement with.” (See pages 15 – 16 of the Records of Appeal).

The above averments in the statement of defence by Appellant, formed the basis of his Counter-claim in paragraphs 15 of the pleading. In paragraphs 12, 13 and 14 of the statement of defence, the Appellant further averred:
11) … The defendant also confronted Eze Akujobi Osuagwu with the fact that some people had trespassed into the land and he told the defendant that it is those people he had a management agreement with.
12) The defendant then informed the Police, who arrested the workers and it was revealed that the claimants are the ones building on the defendants’ land.
14) When the claimants, in their defence, said they bought from Akujobi Osuagwu, the defendant suggested that they all meet with the said Akujobi Osuagwu but the claimants refused. The Police then continued their investigation and called upon Akujobi Osuagwu to make a statement in which he stated that he sold the land in dispute to the defendant. The defendant shall at the trial rely on this statement by Akujobi Osuagwu.” (Page 16 of the Records of Appeal).

The Respondents (as Claimants) filed no reply to the above pleadings and no defence to the Counter claim. Thus, the averments reproduced above, were wholly unchallenged and not denied, and by law, deemed admitted by the Respondents. A Plaintiff has a duty to file a defence to a Counter claim, where it is raised in the Suit he filed, otherwise the claims in the Counter-claim will be deemed as admitted. See Ndulaka Vs. Nwakanma (2013) LPELR – 21949 (CA); Broad Bank of Nig. Ltd Vs Zamo gas Nig Ltd (2011) LPELR – 3892 CA; Dabup Vs Kolo (1993)9 NWLR (Pt.317) 254 at 270.

The evidence of the DW2 in this Appeal, that is, the said Eze (Dr.) Akujobi Osuagwu (who brought the parties in this case into this conflict and dispute) rather favours the Appellant and confirmed the averments of the defendant (which have not been denied or controverted by claimants). His evidence (statement) on oath (on page 29 of the Records) were:
(1) “That I was the owner of a land known as Odoakpi situate at Umuorii Uratta
(2) That I bought the said land in 1994 and established a paint industry therein
(3) That when in 1997 the paint industry was not doing well I sold the land to Obi Ejeshi the defendant in this Suit who is my material Cousin.
(4) That sometime in 2004 the claimants approached me to take over and manage the paint factory, I told them that I had sold the land but that I still own all the equipment and that Obi Ejeshi is my cousin and will not mind if the paint industry is started up again but that anytime he wants his land they will have to stop operations and move the equipment.
(5) That they agreed and paid me N1,000,000 up front as my own share of the profit.
(6) That I am surprised that they are claiming ownership of the land.
(7) That the Power of attorney I gave them is for the purpose of managing the paint factory and not for sale of the land in question.”

The above evidence (statement on oath) was adopted by the DW2 on 8/6/2015, when he was subpoenaed to give evidence in the case. Under cross examination, he maintained that he did not sell the land to the claimants, but sold to the defendant; that he told the claimants to manage the property, which was a paint factory for him (DW2). (See pages 45 – 46 of the Records of Appeal).

I think the DW2 was a cardinal witness in this case, to show and confirm, who, in fact, he sold the land to (since the two parties claimed title from him), and to explain the nature of relationship he had with each of them. At the point the DW2 gave evidence that he did not sell the land to the Claimants, but rather gave them power of attorney to manage the paint factory on the land in 2004, and that he had earlier sold the land to Appellant in 1997, the game was up for the claimants, in my view; and they should have known (or their Counsel should have advised them) that it would be futile to insist on claiming title to the land, in the circumstances, leveraging on the Power of Attorney (Exhibit B) donated to them by DW2 to manage the property. DW2 had denied them, publicly, and rather explained the nature of business transaction he had with them – for which Exhibit B was made – management of the Paint Industry. See page 46 of the Records, where DW2, under cross examination, said:
“I did not sell any property to the claimants, but I sold one to the defendant. I told the claimant to manage the property, which was a paint factory for me.”

The above should be understandable, as per the content of the Exhibit B – Power of Attorney, as the general introduction, clearly started:

“The Donor has decided for better management of the property, to appoint Lugard Chiasaokwu Omeni-Nzewuihe and Kelechi Lasbiey Omeni-Nzewuihe both of Mpama Egbu also in Owerri North Local Government Area of Imo State (hereinafter called the Donees, which expression shall where the context so admits include their successor in title and assigns, his attorney in respect of the properly.” (Underlining mine).

It is therefore surprising to me, that the learned trial Judge, in this case appeared to have completely ignored the clear evidence that the Claimants (Respondents), as per the evidence of their Donor (DW2), were only agents of the DW2 in respect of management of the property (Paint Factory located in the land in dispute for the Done (DW2), not and never the owners of the land, the subject matter of this Suit.

The holding of the trial Court, that the Power of Attorney (Exhibit B) made the claimants owners of the property was therefore, perverse, in my opinion. It was equally wrong to hold, as the trial Court did, that DW2 sold the land to Appellant in 1997, for 8 Million Naira, before giving the Power to the claimants, in 2004, to manage the property – paint factory.

Surprisingly, the trial Court went into unnecessary reflection on the value of the land in 1997, compared to 2004, and got misled into some wrong inferences and conclusions in its judgment. See page 86 of the Records, It does not accord with common sense/logic and sound reasoning, to say or think that an empty land sold, in 1997 for the sum of N8 Million Naira (as per Exhibit D) can devalued and reduce to a paltry sum of N1 Million, in 2004, in a cosmopolitan city, and that, with the Paint Factory. I cannot believe that DW2, in fact, sold the land and the Paint Factory to the Claimants for 1 Million Naira. Rather, as per the Exhibit B, he donated power to the Respondents to manage the property – Pain Factory.

Of course, the transaction of the sale to Appellant, as per the Exhibit D, was the first in time, and claimant’s were duly on notice of that fact, as DW2 said he told them (and that was not denied), that he sold the land to the Appellant.

The lower Court could not therefore be right to infer that “as at the time the defendant was entering into the land, he believed that he is an innocent purchaser without notice of any inccumberance” (Page 86 of the Records). Rather, Exhibit D came earlier, in 1997, and the circumstances of the Exhibit B, which came in 2004 (made by the same DW2 who issued the Exhibit D) had been explained, to show that the land belonged to the Appellant, not the Claimants. I do not think this Court can go against such clear evidence and rather give effect to what looks like a fraud. The law is that:
“Where two or more competing documents of title upon which parties to a land in dispute rely for their claim of title to such land originate from a common grantor, the doctrine of priorities dictating that the first in time prevails, applies.” See Auta Vs Ibe (2003) 13 NWLR (Pt.837) 147.

The law is also that a receipt, like Exhibit D, is admissible in evidence as acknowledgment of money in respect of land, and where, couple with delivery of possession, is capable of being converted into a legal estate by specific performance. See Ukaobasi Vs Nwabueze (2017) LPELR – 42420 CA; Odumade Vs Ogunaike (2011) ALL FWLR (Pt.566) 529. See also Nsiegbe Vs Ngbemena (2007)16 NWLR (Pt.1042) 364, which it was held:

“A purchase of land who has paid and taken possession of the land by virtue of a registrable instrument, which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate. In other words, the possession of a receipt by a party for payment for the sale of land and possession of the land by the party raise equitable interest which may be converted into a legal estate by specific performance.”

I see merit in this appeal and so resolve the issues for the Appellant and allow the Appeal. I set aside the decision of the Lower Court, and dismiss the claim of the Claimants at the Court below, and allow the Counter-claim, which was not contested and was proved. I hold that the Claimants were trespassers on the land in the peaceable possession of the Appellant, having been sold to him by DW2, without prejudice to the DW2 removing his Paint Industry equipment on the land.

The Appellant, as defendant, was entitled to damages for the trespass, which I assess at Five Hundred Thousand Naira (N500,000.00) only.
The Defendant was also entitled to the injunction sought against the Claimants, and it is, accordingly, ordered.

The Respondent shall pay the cost of this appeal assessed at N50,000.00 only, payable to Appellant.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having had the privilege of reading in draft the judgment just delivered by my learned brother Ita G. Mbaba JCA, I agree with his reasoning and conclusion that this appeal has merit and also allowed by me.

I abide by the orders therein made which I adopt as mine.

Appearances:

AMADI – OBI ESQ For Appellant(s)

A.C. NWANERI ESQ For Respondent(s)