ONWUFUJU v. OROHWEDOR (2020)

ONWUFUJU v. OROHWEDOR

(2020)LCN/15336(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Thursday, July 16, 2020

CA/AS/334/2018

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MR MICHEAL ONWUFUJU APPELANT(S)

And

CHIEF SHERRIF FRANCIS OROHWEDOR RESPONDENT(S)

RATIO

WHETHER OR NOT RECORD OF THE COURT MUST SHOW HOW IT ARRIVED AT ITS CONCLUSION OF PREFERRING ONE PIECE OF EVIDENCE TO THE OTHER

This Court in DANKIDI v STATE (2014) LPELR -23812 (CA) on whether record of Court must show how it arrived at its conclusion of preferring one piece of evidence to the other held thus;
“It must be evident on record how the Court arrived at its conclusion of preferring one piece of evidence to the other, see OYEKOLA V AJIBADE [2007] 17 NWLR (Pt 902) 356, IDAKWO V NIGERIAN ARMY [2004] 2 NWLR (Pt 857) 249; ALAKE V STATE (1992) 9 NWLR (PT 265) 260.”
per AWOTOYE, J.C.A (Pp. 18-19, PARAS. G-A). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE BEFORE IT

In YUSUFF v NTC LTD (1977) LPELR-3539 (SC) the apex Court held thus;
“…it is the duty of a Court in arriving at its decision to properly evaluate the totality of the evidence before it and we are satisfied that this was not done in this case especially in regard to the case for the defence.’’
per SOWEMIMO, JSC
See also;IHEKAM v FBN (2017) LPELR- 43545 where the Court stated;
“It is indeed the primary duty of the trial Court to evaluate and ascribe probative value to evidence before reaching a justified conclusion in respect of the matter before; the trial Court cannot for no good reason, if any, abdicate this responsibility. It is clearly not permissible for a trial Court to fail and/or neglect to evaluate the evidence properly placed before it in the determination of the rights of parties before it. See ODOFIN v. MOGAJI (1978) 4 SC 91; MAIKUDI v. MUSA (2004) ALL FWLR (Pt 230) 1096; OYADIJI v. OLANIYI (2005) 5 NWLR (Pt. 919) 561..”
per OBASEKI – ADEJUMO, J.C.A (P. 31, PARAS. B-E). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT PURCHASE RECEIPT IS REQUIRED UNDER CUSTOMARY SALE OF LAND

On whether purchase receipt is required under customary sale of land, this Court held thus in OKOROAFOR v UDENSI (2013) LPELR – 20649 (CA); Whether purchase receipt is required under customary sale of land;
“The general practice under native law, is that making and or giving receipts of purchase is unknown to native law. See Aboyade Cole vs. S. R Folami (1956) SCNLR 186; Clay IND Ltd vs. Aina (1997) 7 NWLR (Pt.515) Pg.208.”
per ABUBAKAR, J.C.A (Pp. 15-16, PARAS. F-A)
See; UDOYE v EZENWABUDE & ANOR (2015) LPELR -25882(CA), the Court held that once purchase price is paid to vendor(s) in the presence of witnesses the sale of land under customary law passes to the purchaser immediately.
Therefore, the Appellant proved the payment of purchase price, lower Court erred in rejecting it and in so doing occasioned a miscarriage of justice. PER OBASEKI-ADEJUMO, J.C.A.

WHAT IS THE PURPOSE OF “AMENDMENT”?

What then is the purpose of amendment?
In OGBE v KOGI STATE GOVT (2018) LPELR – 44796 the Court held on the effect of amendment of pleadings or processes; when an amendment of Court process takes effect thus;
“Now, the immutable principle of amendment(s) of writ of summons, Statement of Claim or Statement of Defence is that once leave is granted to amend any of the processes enumerated herein, what stood before the amendment is longer material or relevant in the litigation before the Court or Tribunal. In other words, upon amendment of pleadings what stood before the amendment no longer defines the issues to be tried in the cause or matter. Amendment of a pleading or writ of summons takes effect from the date of original document. See the cases of: – 1. BRITTANIA-U NIGERIA LTD v. SPDC LTD (Pt. 1503) 541 AT 600 C – D per NGWUTA, JSC who said:- “What is the effect on the order made on 13/12/2013 of the amendment made on 27/12/2013. Generally an amendment duly made takes effect from the date of the document sought to be amended. See Adewumi v. A-G, Ekiti State (2002) 9 WRN 51 at 71-72; (2002) 2 NWLR (Pt. 751) 474; UBA Plc v. Abdullahi (2003) 3 NWLR (Pt. 807) 359 at 378 paras. C-F.” 2. GARBA ADAMU v. THE STATE (2017) 16 NWLR (Pt. 1592) 353 AT 392 G-H per KEKERE-EKUN, JSC.”
per IGE, J.C.A (PP. 16-17, PARA. E). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT A STATEMENT ON OATH NOT ADOPTED CAN BE USED BY THE COURT

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the Judgment of the High Court of Justice, sitting in Asaba, Delta State coram; C. MAIDO, J. delivered on 21th March, 2018, in favour of the Defendant/Respondent in respect of the Claimant the lower Court thus;

The Claimant claimed against the Defendant as follows;
“1. A declaration that the claimant is entitled to the grant of a certificate of statutory right of Occupancy in respect of the land in dispute measuring approximately 100ft x 100ft lying and situate at Anyasiagu farmland, old Awai Road Asaba.
2. N10,000,000 (Ten million Naira) being general Damages for acts of trespass of the Defendants
3. The sum of N1,235,259 on the footing of special damages for the building of the claimant destroyed by the Defendant and his agent
4. An order of injunction restraining the Defendant, his servants, agents or privies from further acts of trespass, entering or staying on this land of the Claimant described hereinabove.’’

SUMMARY OF FACTS
The brief summary of the facts leading to the suit was that, the Appellant paid N400,000 to the New Iyase family Land/Finance Committee and was granted a parcel of land under the custom and tradition of Asaba community. The committee were the only organ of the Iyase family appointed from different arms of the family through which sale of land is regulated, sold, transferred or alienated with the family’s authority.

That about 2000, the said committee filed an action in the High Court, Asaba against dissident members of the family who had sold and were selling and alienating family lands and obtained judgment in 2005, nullifying the activates of these dissident members of the Iyase family on family land.
In 2012, the Respondent broke into the said land(subject matter herein) of the Appellant, demolished his building thereon, laying adverse claim of ownership, claiming to have purchased same from the Osuzuka Family who in turn got their title from Emeka Onwueme and Andrew Onwuegbuzie, the persons defeated in Suit No A/37/2000 (the dissident members of the Iyase family.)
Hence the suit at the High Court, wherein judgment was delivered in favour of the Respondent.

The Appellant being dissatisfied with the decision filed a Notice of appeal dated 15th May, 2018 and filed on 6th May, 2018 later filed an amended version of the Notice of appeal on 24th May, 2019 but deemed on 10th March, 2020.

The parties filed and exchanged briefs of argument pursuant to Court of Appeal rules. The Appellant amended brief was filed on 4th May, 2020 but deemed on 1st June, 2020 together with the reply brief filed on 4th May, 2020, both briefs were settled by Lordman Agbata Esq., wherein he distilled eight issues for determination thus;

3.0 ISSUES FOR DETERMINATION
1. Whether the trial High Court was right in relying on the defence counsel’s final written address to hold that the CW1 is a member of the land committee.
2. Whether giving the circumstances of this case and the evidence led at the trial, has the Appellant not proved and or establish a purchase of land under customary law.
3. Whether from the totality of the evidence led at the trial, the trial Court was right in not recognizing the role of the surveillance boys in the transaction between the committee and the Appellant.
4. Whether the trial Court was right when he held the Appellant to have signed exhibit E in the proceedings without comparing the disputed signature with the admitted signatures.
5. Whether from the evidence lad(sic) at the trial, has the Appellant not explained the discrepancies in the receipt attached to exhibit E.
6. Whether the trial Court was right when he dismissed the Claimant’s case on minor discrepancies that was explained out in the trial.
7. Whether having regards to the evidence led at the trial of this suit, the judgment of the Court is not against the weight of evidence.
8. Whether giving the claims of the Claimant’s as constituted, evidence led at the trial, and the Judgment of the Court, is the judgment of the trial Court not perversed.
9. Whether the trial Court rightly evaluated the evidence led at the trial of the suit.

The Respondent on the other hand filed a brief on 16th March, 2020 settled by Ekeme Ohwovoriole San, Mrs O.U. Molokwu, Miss O.P Dafiaghor, Eweka Omorogie of Aequitas Chambers, wherein he incorporated a preliminary objection at page 5 therein and he formulated a sole issue in the main appeal;
“Having regard to the evidence adduced whether the trial Court rightly held that the appellant failed to established his title to the disputed land under customary law.”

PRELIMINARY OBJECTION
The ground for the Respondent’s preliminary Objection is thus;
The appellant’s issues for determination in this appeal are proliferated in that the issues raised are more than the grounds of appeal and have rendered the appeal incompetent and liable to be struck out.

The Respondent submitted that its trite that a party is not allowed to formulate more than one issue for determination out of a ground of appeal, he relied on; AMODU v COMMANDANT POLICE COLLEGE MAIDUGURI & ANOR (2009) LPELR – 467(SC) 10-11 PAR B; ORJI v STATE (2008) 4 SCNJ 85.

The Respondent further submitted that the Appellant narrowed down 9 issues while the notice of appeal filed on 16th May, 2018 upon which the appeal is predicated contains six grounds of appeal and that this outnumbers the grounds and are therefore in breach of the principle against proliferation of issues and urged that the issues are incompetent and liable to be struck out.

The Appellants reply filed on 4th May, 2020 is to the effect that he had since regularized his position by amending the Appellant’s brief and including additional issues bringing the same in line with the Amended notice of appeal filed on 24th May, 2019.

RESOLUTION
At the hearing of this appeal, the Respondent did not draw attention to the preliminary objection neither did he adopt same nor withdraw the preliminary Objection, in fact none of the counsel mentioned it.
A short answer to this scenario is to deem it abandoned and dismiss same.

APPELLANTS ARGUMENT
On issue 1, the Appellant’s counsel submitted that the lower Court mixed up the evidence of the CW1 in his statement on oath that he was a member of the Iyase land committee when CW1 had stated that he was present when the money for the land was paid to the Iyase family land committee. He further stated that the pleadings and evidence was clear to the point that he was a member of Iyase family who was present at the allocation and that the Appellant was put in possession. Counsel stated that this mix up arose from the submissions contained in the Respondent’s address which the lower Court relied on in its judgment wherein he quoted extensively from and came to a wrong conclusion. He relied on the case of OYEBODE v GABRIEL (2012) 48 WRN 49 AT 61; A.D.F.P.I. v NIWA (2012) 8 WRN 63 AT 67.

On issue 2, Appellant’s counsel submitted that the lower Court dismissed the suit on the grounds that the conditions for valid sale of land or purchased of land under customary law are not present. He stated the ingredients of a valid customary law sale to be;
i). Payment of purchase price
ii) Purchase let into possession by the vendor in the presence of witnesses
iii) Transaction in the presence of witness

He referred to ODUSOGA v RICKETS (2003) 2NLLC 575 AT 589; FOLARIN v DUROJAIYE (1988) 1 NWLR (PT 70 (351); AJADI v OLAREWAJU (1969) 1 ALL NLR 382.

Appellant in proof of the above said there was an unchallenged evidence of N400,000 paid for the land to Iyase Family and finance committee appointed pursuant to the consent judgment in suit No A/114/92 – Exhibit A. That this was done in presence of witnesses and the land was demarcated with boundary sticks. He referred to paragraphs 3, 10, 11, 12, 13, 14, 15, 17 & 18 of the statement on oath of the claimant as evidence in chief.

Counsel further submitted that CW1 & CW2 the witness to the sale and the secretary of the lands committee respectively adopted they were not cross-examined and that it amounted to admission of fact which the lower Court ought to have relied upon. He relied on GAJI v PAYE (2003) 107 LRCN 873 AT 876; AGBONIFO v AIWEREOBA (1988) 2 SCNJ 146.

In respect of issue 3, Appellant testified through CW2 that surveillance boys are used to put people into possession of parcel of lands allocated to them which was done in this case. As principal/agent’s relationship existed between the committee and the surveillance boys. He relied on VULCAN GASES LTD v GESELLSHAFT FUR IND& ANOR (2001) FWLR (PT 53)1; NWEKE v NWEKE (2014) 43 WRN 59 AT 94; NIGER PROGRESS LTD v NZE CORPORATION (1989)3NWLR (Pt. 107) 68 AT 92.

Appellant submitted that the lower Court held that based on this evidence there was discrepancy in the pleadings and statement on oath thereby came to a wrong finding.

Appellant argued on issues 4 & 5 that the lower Court dismissed the suit on the grounds of discrepancy in the receipt attached to Exhibit E, whether it was an atonement levy or a development levy. He referred to CW2’s evidence under cross examination that it was a surveillance fee and not atonement levy, he relied on Section 128(1)(a)-(c) of the Evidence Act, 2011 and TIPPI v NOTANI (2010) 8 NWLR (PT 1249) 285 AT 30 A-C to the point that exceptions to the law are allowed and this explanation is an exception. He relied further on AGBO v STATE (2006) 135 LRCN 808 AT 828 PQ; RE ZEE & 829 AP; YALIA v STATE (2014) WRN 73 AT 199.

Appellant submitted that the various amendments on his statement of claim on the size of land as seen in Exhibit E and the body that granted the land from Ogbeosowe family to Iyase land committee of Ogbesowe village were to correct the relevant evidence and that same did not amount to any discrepancy in the pleading nor evidence of Claimant’s witnesses, he therefore submitted that the lower Court was wrong to have assumed and treated and relied on the evidence statement on oath attached to the original pleadings as evidence (which was not adopted), whereon he held that the discrepancies existed in the evidence of the Appellant and his witnesses. Finally, the Appellant argued issues 7, 8 & 9 of the issues for determination together and submitted that on the cases of ABEGUNDE v O.S.H.A. (2016) 6 WRN 1 AT 6; IGBINKI v STATE (2017) ALL FWLR (PT 883) 1405 AT 1416 PARA F; ATOLAGBE v SHORUN (1985) 1 NWLR (PT 2) 360, that the lower Court failed to evaluate the evidence led at the trial but on the final address of Defendant’s counsel and therefore the judgment did not arise from the evidence on record and same is perverse and occasioned miscarriage of justice. He urged the Court to resolve the issues in his favour.

RESPONDENT’S ARGUMENT.
In submitting in respect of the sole issue formulated by the Respondent’s counsel, he stated that the lower Court rightly held that the Appellant failed to prove its claim and relied on ADESANYA v ADERONMU (2000) 8 NWLR (PT 672) 370.

Respondent’s counsel referred to findings of facts made by the lower Court and that the Appellant’s claim was hinged on customary sale of land and that the following elements must co-exist in the transaction;
1. There must be evidence of payment of purchase price
2. Payment of same must be in presence of witnesses
3. The actual handing over of the land to the purchaser must take place in the presence of witnesses.
He cited ORIDO v AKINLOLU (2012) 9 NWLR (PT 1305) 370 AT 393 – 394; ODIASE v AZAKA (2016) LPELR – 41437 (CA) P8; ADEDEJI v OLOSO (2007) 5 NWLR (PT 1026) 133 AT P.166-169 PAR F – A.
That same must be pleaded and this the Appellant failed to do.

Respondent submitted that the Appellant’s failure to give evidence on payment of purchase price was fatal to its claim, he cited CHIEF S. FALOWO v HRH OBA BANIGBE & ORS (2007) LPELR -11850 (CA) P. 33, PAR B – C.

Respondent submitted that there was discrepancy between oral evidence and documentary evidence admitted at hearing, that the front loaded Exhibit E dated 15th November, 2011 together with original pleadings, that the first contact with the Ilombu Committee occurred in 2011 and this contradicted the Amended statement of claim and oath admitted as Exhibit D at page 505 of record. That Exhibits D & E were filed by the Appellant when he retained former counsel E. N. Kanu Esq, where he filed a complete somersault statement from the previous stance in his pleadings as to whom he actually paid the purchase price to.

Respondent referred to the N150,000 paid to the Illombu led Committee which was not clear as to whether for atonement fee or development fee in his additional statement on oath. And this put a question mark on the credibility of the evidence as against the content of the receipt. Respondents said there were material contradictions in the evidence of Cw2 and the evidence be rejected he cited KAYILI v YILBUK (2015) 7 NWLR (PT 1457) 26 AT 77. MOGAJI v CADBURY (1985) 2 NWLR (PT 7) 393.

Furthermore, the Respondent contends that the Appellant failed to plead and prove payment of purchase price in presence of witnesses, he cited ORIDO v AKINLOLU (Supra); OTARU & SONS LTD v IDRIS & ANOR (1999) LPELR -419 (SC) 47 PAR D – E; EKPEYONG v NYONG (1975) 2SC 71 AT 80.

Respondent faulted the witnesses as not competent and that in the absence of an independent witness outside the alleged vendors’ presence of witnesses has not been proved. He disagreed that the lower Court mixed up evidence.

Respondent canvassed that the Appellant did not prove the requirement of taking possession of the land in presence of witnesses, he relied on the cases ofNNADI &ORS v ARIRI & ORS (2015) LPELR – 24575; AIRTEL NETWORKS LTD v GEORGE & ORS (2014) LPELR -22951 (CA).

On this issue, he contended that the name of CW2 was not put in the list of witnesses that witnessed when he was put in possession of the land, but he testified as being present along with CW1 but under cross-examination Cw2 admitted that Illombu committee did not put the Appellant in possession but that it was the surveillance boys while he is the secretary and that this contradicted the evidence of C1 and failure to call any of the surveillance boys is fatal to the claim.

Respondent’s counsel submits on the use of previous pleadings and statement which were not adopted during cross examination and anchored on Section 232 of the Evidence Act, 2011. He referred to Section 136(1) & (2) of Evidence Act, 2011 that the burden of proof laid at the feet of the Appellant as to a particular fact and had to prove that his signature was forged on the original statement on oath and that the acts of the former counsel could not avail him.

On the whole, he urged the Court to hold that the lower Court rightly held the burden had not shifted from the Appellant to prove legally and evidentially.

REPLY ARGUMENTS
Appellant’s counsel in reply to use of previous statement submitted that the lower Court fell into error in treating the said statement on oath attached to the Original pleading as evidence in chief of the Appellant as same was not adopted under oath. He referred toTAR v MINISTRY OF COMMERCE LAND (2019) ALLFWLR (PT 1002) 893 AT 900 – 901; AKPKEMOVO v AGAS (2004) 10 NWLR (PT 881).

Appellant submits that Exhibit E is the statement on oath which signature was disputed and the Court failed to conduct necessary test to ascertain the Appellant’s signature, and that Section 232 of the Evidence Act does not apply.

Counsel contends that the Appellant never at anytime said his signature was forged on Exhibit E but that the signature was not his. And there is a difference between a disputed signature and a rejected one. He referred to AMADI v ORISAKWE (SUPRA) NDOMA EGBA v ACB PLCand Section 71 Evidence Act, 2011.

RESOLUTION
I have studied the issues formed by the Appellant and the sole issue of the Respondent and find that the Respondent’s issue is in general while that of the Appellant is apt since it is his appeal, this Court shall resolve the appeal along the Appellant’s issues.

In view of the issues for determination, I shall resolve them in groups such as issues 1-3 as (1), issues 4 – 6 as (2), issues 7 – 9 as (3).

ISSUE 1
I have read the evidence of the Appellant especially that of CW1, MR. Abuah Obimgba, his adopted statement on oath is at page 271 of the records and also contained in the additional record deemed 10th March, 2020. He is a principal member of Iyase Family Ogbesowa village and he confirmed the Claimant to be an Adult male member of the Iyase Family who are the owners of the land in dispute. He confirmed that the land was allotted to the claimant by the Iyase Family land finance committee led by Chief A.C. Ilombu upon payment of the sum of N400,000 to the Iyase family through the Iyase family lands and committee and that at that period the Iyase family were in dire need of money to finance the Court case it had with F.O. AKPOKU & ORS in Suit: A/37/2000 over illegitimate dealings on family land, hence it allocated lands to any male member of the family who was able to pay the cost of the land and as a result, a lot of family members paid to the family through the committee and mentioned names of such persons; Ogbueshi Henry Onwufuju, Cypprian Iyeh.

Cw1 in paragraphs 6 & 7 emphasised that the Claimant paid the purchase price in his presence and other family members and was put in possession of the land by the members of family lands finance committee in the presence of Ogbufiobi Onwufuju, himself, Sunny Okolo, Ogbueshi Henery Owufuju and other members of family.

Cw1 further stated that the land of the family was under the control of Constituted Iyase family lands and finance committee who has exclusive authority to allocate, manage, assign, transfer or mortgage any part of the family lands including Anyasiagu Farm Land and no other. He tendered Exhibits A, Enrolled judgement in A/114/1992, and Exhibit B Enrolled judgement in A/37/2000 BETWEEN ILOMBU &ORS v F.O.AKPOKU & ORS which nullified all and every acts of the defendants therein on Iyase lands which led to the notification in Publication in Vanguard newspapers – Exhibit C calling in respect of all land sales done through the defendants for such buyers to come for authentication and rectification of all lands not sold by the Illombu committee.

He denied that defendant was ever allotted the land by the Illombu committee. He confirmed the size of the land as 100 x 100ft.

Cw1 was cross examined by the Defendant’s Counsel strenuously and he maintained that the Claimant paid cash to the committee in which he is a member and this was done in his presence, he also said there was no receipt issued as evidence. He further stressed that he is the secretary of the committee made up of nine members, he only has records of meetings, the other records are with the chairman. He further confirmed that the Osuoka families are members of the Iyase family and that he knew the land in dispute.

The last amended pleading of the Claimant is at page 216 of the record and titled “further amended statement of claim’’ together with the reply is in line with the above evidence.

The lower Court in its judgement having stated the first requirement for a customary land sale as proof of payment of purchase price at page 484 of the record and page 10 of the judgment, merely reproduced portions of the written address of the Defendant/Respondent without evaluating that of the Counsel for Claimant on the issue and moved to the second requirement. There was no evaluation of the evidence on record or exhibits in proof before holding that he disbelieved the evidence of Claimant witnesses and concluded that, there was no proof of payment of purchase price.
This Court in DANKIDI v STATE (2014) LPELR -23812 (CA) on whether record of Court must show how it arrived at its conclusion of preferring one piece of evidence to the other held thus;
“It must be evident on record how the Court arrived at its conclusion of preferring one piece of evidence to the other, see OYEKOLA V AJIBADE [2007] 17 NWLR (Pt 902) 356, IDAKWO V NIGERIAN ARMY [2004] 2 NWLR (Pt 857) 249; ALAKE V STATE (1992) 9 NWLR (PT 265) 260.”
per AWOTOYE, J.C.A (Pp. 18-19, PARAS. G-A)
I dare say that the mode of reaching a conclusion on this point, the lower Court simply adopted the portions of the Defendant’s counsel written submission in its address as its evaluation from the record without considering the evidence of the Claimant. In YUSUFF v NTC LTD (1977) LPELR-3539 (SC) the apex Court held thus;
“…it is the duty of a Court in arriving at its decision to properly evaluate the totality of the evidence before it and we are satisfied that this was not done in this case especially in regard to the case for the defence.’’
per SOWEMIMO, JSC
See also;IHEKAM v FBN (2017) LPELR- 43545 where the Court stated;
“It is indeed the primary duty of the trial Court to evaluate and ascribe probative value to evidence before reaching a justified conclusion in respect of the matter before; the trial Court cannot for no good reason, if any, abdicate this responsibility. It is clearly not permissible for a trial Court to fail and/or neglect to evaluate the evidence properly placed before it in the determination of the rights of parties before it. See ODOFIN v. MOGAJI (1978) 4 SC 91; MAIKUDI v. MUSA (2004) ALL FWLR (Pt 230) 1096; OYADIJI v. OLANIYI (2005) 5 NWLR (Pt. 919) 561..”
per OBASEKI – ADEJUMO, J.C.A (P. 31, PARAS. B-E).

Having testified through CW1 and himself and CW2 that purchase price was paid, especially Cw1 in its statement on oath stated how it was paid and circumstances and to whom he paid same, he did not know whether a receipt was issued. In my view, having confirmed same he is a principal member of the Iyase family and Cw2 a member and a secretary of land finance committee, therefore, it is safe to say he represented the committee who collected purchase money from him and I disagree that it falls within those to be referred to as the vendor and witness. It is not an individual sale but a sale by representatives and on behalf of the family. It lies on the Committee to state that the purchase price was not paid. The submission of the Respondent’s Counsel in this regard that they cannot testify as vendor and act as witness is misconceived and cannot be correct in law. The evidence of CW1 & CW2 were not shaken. The best form of proof is the representative of the committee and/or a principal member of a family coming to confirm receipt of same.

As a follow up, the second requirement from the totality of evidence, it’s on record that Cw2 – G. S. C Okwuosa testified as a principal member of the Iyase family, Ogbesowa village Asaba, also the secretary of the Ilombu led lands and finance committee for Iyase family constituted pursuant to the consent Judgment in suit A/114/1992.

He maintained that he witnessed the transaction from the point of payment till letting into possession. This is in line with paragraphs 4, 11, 13, 14, 16 & 18 of his statement on oath adopted at page 281 of the record. The requirement of putting in possession in presence of witnesses was put to rest when the method adopted by the family was explained. He categorically said the youth wing surveillance at their instruction puts the buyers into possession by leading them to the land in question and this was done in this case, the evidence at pages 459 of the record CW2 stated under cross-examination;
“The claimant did not pay atonement fee, he only paid surveillance fees to the boys in the bush. I cannot remember how many plots of land we allocated between 1999 and 2005…the committee has power to allot land to male children of the Iyase family of Ogbesowe but some child took land to allot land without any allotment. The records of allotment are the chairman of the chairman of the Committee. When the lands are allocated the surveillance boys go to show the allot tee the plot given to them. I am not a surveillance boy.’’

The above evidence came from the Secretary of the committee that allotted the land, collected the purchase price and put him in possession, it was not by an individual but a collection of selected family members appointed into the committee by the Family who own the lands and ratified by a Court order in Exhibit A.

I do not see how this is fatal to the case of proving possession, the CW2 is the secretary and testifies for and behalf of the committee, he is to my mind a very relevant witness, it’s not the law that one must bring all parties who were present to testify on same as long as the witnesses are credible, it meets the proof of possession especially from the Defendant’s defence that the defendants are saying that the claimant did not buy at all, that they also bought from the family, were first in time and also members of the same family but bought through a different party. CW2 showed the detailed manner of how the committee handles “putting into possession’’, they detailed the Surveillance boys who are the youths of the family upon payment of a token by the buyer, puts the buyer into possession by showing him the portion of land to Claimant, this is done on the authority and on behalf of the family appointed Committee. I do not see how this alters the evidence instead it fortifies the claim that Claimant was put in possession by them. It is of no monumental defect to the sale especially that the claimant and the first buyer from whom Defendants derive title are from the Iyase family.

The Respondent made heavy weather about the receipt of N150,000 paid by Claimant to the committee who admitted receiving same through the Cw2 and he maintained and explained that it was surveillance fees and not atonement or development fee as stated in the receipt and reply. It is the Committee who issued the receipt and handles land and finance matters on behalf of the family and sets out conditions for sale and possession of same, therefore, the secretary is the proper person to explain what was paid for as it issues receipt for amounts collected. It shows that in recognition of having had a land contract/arrangement he paid for an additional requirement in respect of the land. This Court is not swayed by the heavy argument, the situation is straight forward.

This is a minor discrepancy, as it is evidence and not facts to be pleaded, the claimant puts this to be an error in the receipt he was issued, it is not relevant in proof of sale and ought not to form the basis of dismissing the case as earlier.

The only dispute is whether they bought the land from the accredited vendor? From the totality of evidence on record, the land is definitely one of the Iyase’s Family lands, this can be sniffed from the pleadings, evidence and documents tendered. Therefore, the lower Court was wrong when it rejected the evidence of the surveillance boys as a discrepancy and discountenanced Exhibits A, B & C.
I resolve issues 1, 2 & 3 in favour of the Appellant.

ISSUE 2
In respect of issues 4, 5 & 6, it revolves round the original processes filed in the action by the former counsel – Exhibit E and tendered in cross-examination of CW 3 (claimant) it is the C.T.C. of Motion on notice, amended statement of claim and written deposition of Ogbueshi Onwufuju Iyase family led committee and ruling 5/12/12 filed by his former counsel E. NKANU Esq, Exhibit D, see pages 497 – 508 the lower Court held that the signature on Exhibit D was that of the Appellant, who had stated that signature on Exhibit D was not his while Exhibit E was the C.T.C of Original processes, it was not his and he did not sign same, at page 463 of the record of the evidence;
“Claimant identifies Exhibit B. The matter was concluded in 2005. I did not sign the statement of claim. It is not my signature. The land in dispute is 100ft by 100ft and not 50 by 100ft. I have an approval plan but not pleaded. I did not know there would be need for bringing it to Court. I know the Ogbesowe family allot land to male children or male child of the family. The Osuoka family is a part of the Ogbesowe family. I do not know the first name of Felix and Chirstopher but I know the surname Osuoka… the land in dispute was never allotted to any member of Ogbesowe family…’’

The lower Court had this to say at page 484 (page 10 of judgement):
“The answers to the above questions by the claimant are by oral evidence as it is his case that the sale was of a customary nature documentary evidence therefore was not necessary. The credibility of the claimant and his witness therefore in my opinion became an issue. His answers and that of his witness under cross-examination were not sufficient to explain the discrepancies between the original proceedings, written statement of oath, the extant pleadings and the written deposition on oath and that of his witnesses. The blame laid at the feet of his previous counsel was equally not enough to shift the burden of proof both legally and evidentially. FROM THE FOREGOING I hold the Claimant failed to establish his title to the land in dispute under customary law…’’

On a scrutiny of page 463 of the records it says; “…I did not sign the statement of claim. It is not my signature.”
I am aware and rightly take judicial notice that it’s only a counsel who signs a statement of claim therefore, the heavy weather of whether he signed or not is a mere chasing of the winds.
For the purposes of argument, if the counsel meant statement of oath, which was not so stated in the records, bearing in mind that none of the parties have challenged the record, he was not confronted with his signature on other processes or asked to sign on a blank paper to confirm same or confront the claimant with it
In the case of OKAFOR v OKAFOR (2014) LPELR – 23561 (CA), this Court set down the procedure for confirming a signature thus;
“I agree with the appellant’s counsel that the learned trial judge erred in law by making use of exhibits P and Q to carry out the exercise of comparison of the signature in the Will with the signatures on exhibits P and Q. Section 101 (1) and (2) of the Evidence Act which provides for such comparison reads: “1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose. 2) The Court may direct any person present in Court to write word or figure or to make finger impressions for the purpose of enabling the Court to compare the words, figures or finger impressions so written with any word, figure or finger impression alleged to have been written or made by such person. Provided that where a defendant does not give evidence he may not be so directed to write such words or figures or to make finger impression. 3) After the final termination of the proceeding in which the Court required a person to make his finger impressions, such impressions shall be destroyed.”
per BOLAJI – YUSUFF, J.C.A (PP. 41-42, PARAS. B – A)
In failing to do this the lower Court failed to perform its duty.

More importantly, is that the lower Court based his reasoning on inability of the Claimant to explain discrepancy between his original pleadings and extant pleadings.
Permit me to say that, the Appellant had amended his processes under the former counsel and further amended same. What then is the purpose of amendment?
In OGBE v KOGI STATE GOVT (2018) LPELR – 44796 the Court held on the effect of amendment of pleadings or processes; when an amendment of Court process takes effect thus;
“Now, the immutable principle of amendment(s) of writ of summons, Statement of Claim or Statement of Defence is that once leave is granted to amend any of the processes enumerated herein, what stood before the amendment is longer material or relevant in the litigation before the Court or Tribunal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In other words, upon amendment of pleadings what stood before the amendment no longer defines the issues to be tried in the cause or matter. Amendment of a pleading or writ of summons takes effect from the date of original document. See the cases of: – 1. BRITTANIA-U NIGERIA LTD v. SPDC LTD (Pt. 1503) 541 AT 600 C – D per NGWUTA, JSC who said:- “What is the effect on the order made on 13/12/2013 of the amendment made on 27/12/2013. Generally an amendment duly made takes effect from the date of the document sought to be amended. See Adewumi v. A-G, Ekiti State (2002) 9 WRN 51 at 71-72; (2002) 2 NWLR (Pt. 751) 474; UBA Plc v. Abdullahi (2003) 3 NWLR (Pt. 807) 359 at 378 paras. C-F.” 2. GARBA ADAMU v. THE STATE (2017) 16 NWLR (Pt. 1592) 353 AT 392 G-H per KEKERE-EKUN, JSC.”
per IGE, J.C.A (PP. 16-17, PARA. E)
Having been so held by Courts and judicial precedents, is it proper for the lower Court to base his judgment on the lack of explanations in the difference in the old and new pleading, having granted leave to amend? This defeats the essence of an amendment; a party can change his pleadings as long as it does not overreach the adverse party. In this case there was no objection. Amendment has been said to be in different forms, a substitution, inclusion of new facts, removal of same, bringing out the controversy between parties. See; A.S.W.A v EKWENEM (2009) 13 NWLR (PT.1158) PG 410; ATANDA v SAFFIDEN (2007) LPELR 8303 SC held on the effect of amendment of pleadings or processes;
“…it is well settled that an amendment of a pleading takes effect not from the date it is made but from the date of the original document. In other words, the Court cannot rely on the original pleading to decide the live issues in the case but on the amendment – see Anka v. Lokoja (2001) 4 NWLR (pt. 702) 178; N.G.C. Ltd. v. Oforishe (2002) 17 NWLR (pt. 797) 657.”
Per AUGIE, J.S.C (PP. 10-11, PARAS. C-D).

I have examined these processes; Exhibit E which appears at page 538 -545 of the record; in paragraph 5, 6 & 7 of the claim. Claimant had stated that the land was 50 x 100ft and was owned by the family of Ogbesowa and paid for and it was under native law and custom in presence of witnesses Chief A. C Ilombu, Rev. B. M Akpoku and Mr Henry Onwufuju.

He paid N150,000 as atonement fees in 2011 by receipt of Iyase family land and finance committee. These were replete in the statement on oath of claimant. The receipt read “Atonement of 100 x 100ft in phase one, Victor Odogwu st Anyasiagu Asaba’’ on the said family receipt

Again, in Exhibit D at page 495-508 is a motion filed by E. N. Kanu Esq to amend the statement of claim dated 8th April, 2013 which was granted on 17th July, 2013. In the affidavit in support it states in paragraph 3 & 4 thus;
3. That after going through the writ of summons and the statement of claim filed by my solicitor E.N. Kanu Esq. I observe some material omissions and suggested substantial amendment of the writ of summons and the statement of claim (pleadings)
4. That the purpose of the amendment is to bring out the real issues in contest or controversy between the parties in litigation.’’

In the amendment, paragraphs 5,6-8 & 11 were amended or added; the size of the land 100x100ft, and a brief summary of the amendments were that; the names of vendors title from the members of Ogbesowe village, Asaba on 2nd October, 2005 with the knowledge, approval and consent of Iyase family land and finance Committee under Asaba Native law and custom for a valuable consideration of the sum of N400,000 (Four hundred thousand Naira) put into possession in presence and importance of the committee as the only authorized body to deal on family land.
The statement on oath attached was along the same lines.

It is pertinent to note that there was no objection from the Respondent as Defendant’s Counsel. The processes were further amended by the new counsel on record Lordman Agbata Esq on 18th November, 2014 by order of Court.

The learned trial was wrongly persuaded by the unnecessary cross examination on the original processes which had been amended twice before the cross examination goes to the credibility of the witness and not establishing of the facts in issue when he held that there was unexplained discrepancy between the Original originating processes and the recent ones. I therefore disagree that this is the statement referred to in the Evidence Act as contended by the learned SAN.

The lower Court failed to evaluate the contents of Exhibits A & B at page 240 of the records which shows clearly the vital position of the land and finance committee and the names of members Cw2 is Nos 3 as members of the new land/finance committee, its settlement terms where it was decided that;
“C. That all portion of Iyase family lands, which were not legally sold at the date of this suit 2nd November 1992 remain the bona-fide property of Iyase Family.
D. That the new land /finance committee is charged with the responsibility of sharing all unsold portions of Iyase family land in different locations in Asaba to all eligible sons of Iyase family.
E. That the new land/finance Committee is authorised to operate all Iyase Family Accounts.
F. That the new terms shall be the judgement of the Court in this Suit all arms of the Iyase family Diokpa Agwe Family, Ulagbe Family, Olu Family and Mr Nkeadi Onworbi The Okei-Ogbee.”

The Appellant witnesses in my opinion are competent and credible witnesses for the land transaction.

I have gone at great lengths to examine these processes and have not seen the evaluation of the lower Court when put against the effect of an amendment of processes in law.
The Apex Court inOFORISHE v NIG GAS CO LTD (2017) LPELR-42766 SC had this to say;
“The purpose of amending pleadings is to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Put in another way amendments to pleadings are ultimately to enable the Court decide the real issues in controversy between the parties. The position of the law is that the amendment relates to the original pleadings and all amendments before the final amendments seize to be pleadings to be relied on in the trial. They remain worthless. See Rotimi & Ors v. Macgregor 1974 II SC p. 133; CGDG (Nig) Ltd & Anor v Idorenyim (2015) 56 SC (Pt II) p. 1.”
per RHODES-VIVOUR, J.S.C (PP. 16-17, PARAS. E-B).

The curious issue is why would the lower Court base its reasoning on this when the Further amended processes are the live issues and what the claimant relied upon in its claim before the Court. The lower Court had no business referring and building on previous pleadings before “the grant of leave to amend.”

Again, it is trite that a statement on oath not adopted cannot be used by a Court, it’s deemed abandoned.
In MAJEKODUNMI v OGUNLEYE (2017) LPELR – 42547 the Apex Court held on the legal status of a written statement on oath; distinction between affidavit evidence and written statement on oath thus;
“To determine this issue, I find it necessary to state the legal status of a Written Statement on Oath. It should be noted that, unlike an affidavit per se, a Written Statement on Oath filed in Court is not evidence, unless it has been duly adopted by the witness at the trial. In other words, a Written Statement on Oath will only be evidence to be used by the Court in the determination of the Plaintiff’s Claim, if it has been adopted by the person who deposed to it as his testimony during the trial. If it is not so adopted, it is deemed abandoned and therefore cannot be examined by the trial Judge. An Affidavit on the other hand is the evidence of the witness made in writing. Thus, whether or not the deponent appears in Court, such depositions are capable of being evaluated by the Court as evidence. See Splinsters (Nig.) Ltd & Anor v. Oasis Finance Ltd (2013) 18 NWLR (pt.1385) p.188 at 227 per Izoba, JCA; Agagu v. Mimiko & Ors (2009) 7 NWLR (pt.1140) p.34; Oraekwe v. Chukwuka (2012) NWLR (pt.1280) p.87 at 201; Thus, in the case Kalu Igu Uduma v. Prince Ama Arunsi & 14 Ors (2010) LPELR – 9133 (CA), Ogunwumiju, JCA said: “I am minded to go a step further and to make a distinction between Affidavit evidence in procedure begun by Originating Summons as against Statement of witnesses on Oath at an election proceeding or proceeding began by Writ and to say that in respect of the latter scenario, where the Written Statement is to be adopted again on Oath by the maker before his Cross-Examination on it, whatever defect in the Original Oath in respect of the witness statement has been cured by the second Oath made in Court before the judex prior to the adoption of the witness statement by the maker and his subsequent Cross-Examination. See the case of Udengha v. Omegara CA/PH/EPT/173/2008 unreported, delivered on 30th March, 2010.” Similarly, in the case of Hon. Fabian Okpa v. Chief Alex Irek & Anor (2012) LPELR – 8033 (CA), Ndukwe – Anyanwu, JCA, relying on the case of Akpokemovo v. Aga (2004) 10 NWLR (pt.881) p.394 said: “This Court has consistently held that a witness Statement on Oath is different from an Affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the Court can admit in the absence of any unchallenged evidence…. On the contrary, a witness statement is not evidence. It only becomes evidence after the witness is sworn in Court and adopts his statement. At this stage at best it becomes evidence in Chief. It is therefore subjected to Cross-Examination after which it becomes evidence to be used by the Court. If the opponent fails to Cross-Examine the witness, it is taken as the true situation of facts contained therein.” It is obvious that Ogunwumiju and Ndukwe Anyanwu, JCA are saying the same thing but in different words. The effect therefore is that, a Written Statement on Oath becomes evidence upon which the Court can act, only if it has been adopted on Oath at the trial by the deponent. It therefore means that where the Written Statement on Oath was adopted at the trial without any objection by the Defendant, he cannot later challenge the competence of that statement. Thus, in the case of Agagu v. Mimiko (2009) 7 NWLR (pt.1140) p.342 at 424 paragraphs E – F, this Court said :… The trial Court was therefore entitled to act on it.” It therefore means that, in the instant case, the Appellants’ witnesses having adopted their Statements on Oath, such statements became the evidence-in-chief of those witnesses. Despite the opportunity granted the respondent to file a defence or to attend Court and Cross-Examine the witnesses, the Respondent’s learned counsel adopted the strategy of not seizing the opportunity to do so. It is also my view that, the Appellants’ witnesses having adopted their Written Statements on Oath without any objection the statements had become the evidence-in-chief of those witness. It is also not unexpected that, a Claimant testifying in a case would conclude his testimony with the prayer that the Court grants his claims as relayed by the CW2 in paragraph 33 of the Written Statement on Oath.”
per TSAMMANI, J.C.A (PP. 40-45, PARAS. D-C).

Therefore, the Respondent’s Counsel was misconceived in his submission, while lower Court erred in law in the use of an unadopted statement on oath for its reasons for the judgment and thereby occasioned a miscarriage of justice against the Appellant.
I resolve issues 4, 5 & 6 in favour of the Appellant.

ISSUE 3
In the light of the analysis above, I am satisfied that the Appellant proved all requirements of the customary law transaction of the land. The burden now shifts to the Respondent who contends that the land in dispute was legally bought. In resolving issues 7, 8 & 9, the big question is;
“whether the sale went through authorized family representatives.”

This in my view is the turning point. I do not see any dispute on the identification of the land as mentioned by the lower Court, it is the authentic root of title upon which this appeal will turn. Who has a better title?

Now to the scrutiny of the Exhibits in this case to arrive at a proper resolution, is to examine Exhibits A, B & C which are enrolled orders from a Court of competent jurisdiction and the effects of these Court processes on the title of the Respondent bought from Rev Bishop Samson Oroh Iteheri who bought from the Osuzuka brothers. Their father; Ogbueshi Patrick Osuzoka testified on their behalf as DW1 and stated the root title;
“The land in question belongs to my children Felix and Christopher Osuzoka. The land my children sold to the Bishop is opposite Government House, Anwai Road Asaba. The Secretary Mr Chinweta Onwuegbezie known as lawyer Chinweta Onwuegbuzie sold the land to my children, his English name is Andrew. The chairman was Mr Emeka Onwnueme but he is dead now, I am a member of Iyase family. I am not aware of the suit A/114/92. I am not aware that the suit appointed A.C. Ilombu as chairman of Iyase committee. I am not aware that in year 2000 there was an action by Ilombu against Onwueneme… The land was allocated to them in 2000.’’

When examined against Exhibits A & B it is the same old land committee that was dissolved in Exhibit A that sold the land, the land was sold after the Court settlement judgment of 1999, it was not sold by the new constituted land/finance Committee led by Ilombu charged with responsibility of all lands of the family. See additional statement on oath of the Claimant at page 269 of records. A copy of the allocation form at page 344 & 345 tendered by defendant shows date of allotment as 20th March, 2000 as Exhibits F & F1 respectively.

Again, Exhibit B is a judgment in Suit A/37/2000 instituted by the Ilombu led committee against 9 defendants, the vendor of the Osuzoka brothers is No 4 named as ANDREW LAWYER ONWUEGBUZIA. Wherein judgment was entered in the following terms;
1. It is hereby ordered …defendants by themselves, their servants, agents be and restrained from selling alienating sharing, allotting leasing, mortgaging building or continuing to build on portions of ANYASIGAGU AND AKPULUGBE LANDS of Iyase family situate at Asaba…doing an act in infringement of the consent judgement in suit A/114/92
2. IT IS HEREBY DECLARED THAT ANY PURPORTED SALE SHARING, ALLOTMENT, LEASE, MORTGAGE OF THE SAID LANDS BY THE DEFENDANTS TO ANY PERSONS OR PERSON IS NULL AND VOID
3. IT IS FURTHER ordered that the defendants by themselves… are hereby restrained from demanding collecting monies from members of Iyase family and their tenents there from or interfering with the management of the said land by Iyase family land /finance committee…

It was dated 20th December, 2005 following which the Ilombu land/Finance committee put out a publication in Vanguard Newspaper on Wednesday December 6th, 2006 at pages 254 of the records
“on A/37/2000 ALBERT CHUKWUKA ILOMBU AND ORS V F.O AKPOKU AND ORS IN RESPECT OF ANYASIAGU AND AKPULUGBO LANDS of the Iyase family Ogbesowa village… all those who hurriedly erected buildings and structures /premises and all those who hurriedly erected building and structures during the pending of the above suit on the said AKPULUGBO AND ANYASIAGU LANDS are requested to atone tenant to Iyase Family land/finance Committee under the chairman of Ogueshi Albert Illombu in 30 days from the date of publication otherwise the committee will take steps to recover the said building and premises from all the occupants…”

In the light of Exhibits A, B & C above, the Defendant’s title is obviously hinged on one of the lands referred to in Exhibit B and is within the area mentioned in Exhibit C, it is therefore affected by the above and having not (as admitted by the DW1or DW2) ratified it with the authentic Ilombu led Iyase land/finance committee, the sale was declared null and void. The Defendant’s predecessor therefore had no title as at the time of transaction and had none to pass on to Bishop Samson Oroh Itehri, who sold to the present defendant.
The Respondent had answered in cross examination through DW1, 2 & 3 that they never heard of Exhibits A, B or C. Furthermore, a look at Exhibits A & B, the Suits were brought in representatives’ capacity by Court order for themselves and representing the Iyase family (Ogbeosowe village) Asaba excluding the defendants in the respective suits. Therefore, the Defendant is bound (as assigned privies) through his root of title, the Osuzoka brothers (who are part of Iyase family & Ogbeosowe village are included in the representation) who transferred to Bishop Itehiri at which time the sale was caught by Exhibit A, had no title to pass on.
It is trite that ignorance of the law is not an excuse, they are bound, being a family member bought from unauthorized body and having not read the publication notice in newspaper which in law constitutes valid notice to the world. The Respondent and his vendors by extension are estopped in law by these Court orders (Exhibit A & B) which renders their title null and void.
Therefore, it follows that the statutory certificate of Occupancy registered as NO. DTSR 1361, registered as NO 16 of PAGE 16 in Volume Co 165 of Delta State Land Registry at Asaba of the Respondent obtained in August 2009 and based on false title therefore cannot stand.
In EWURUM v MINISTER OF FCT (2019) LPELR – 48365, on the effect of a sale of property by a vendor that lacks power of sale;
“In any case a valid contract of sale of the right of occupancy of the disputed property to the appellant by the 1st respondent had long been concluded in 2006. So the 1st respondent no longer had any right or interest to convey or sell to anybody. So when it purported to offer to the 2nd respondent the same property for purchase, it had no right or interest therein to offer her to purchase. The second sale of the same to the 2nd respondent over a year after it had been conclusively sold to the appellant is void and of no effect. See Oronti v Onigbanjo (2012) 12 NWLR (pt 1313) SC 23, Nura Mohammed vs. The Hon. Minister Federal Capital Territory Administration & Ors (judgement in CA/A/443/2011 delivered on 27/2/2019) and Virginia vs. Isioma & Ors judgment delivered in CA/A/406/20I2 delivered on 23/11/2018.)”
per AGIM, J.C.A (PP. 34-35, PARAS. C)
The Respondent has a duty to prove the root of title that entitles him to the certificate, in other words mere being in possession of a certificate is not ipso facto a conclusive evidence of title or ownership. See CHINEYE A. EZEANAH v ALHAJI MUHAMMED ATTAH (2004) 2 SCNLR 200 LAND LAW.
In ABAZUONU v EJIOFOR (2016) LPELR – 41518 thus;
“A Certificate of Occupancy is prima facie evidence of title to land and no more. It is beyond doubt that one of the recognized methods of establishing title to land is by title documents. This does not however mean that once a title document such as a Certificate of Occupancy is tendered in Court, it automatically proves that the land therein purportedly owned belongs to the grantee. Where a Certificate of Occupancy has been granted to a party who has not proved a better title, it must be deemed to be defective and to have been granted erroneously. The holder of the said certificate would have no legal basis for a valid claim over the land in issue. Niki Tobi JSC on the rebuttable presumption of ownership of a holder of a Certificate of Occupancy held in Ezeanah v. Atta (2004) 2 SCNJ 200 at 222 as follows:- “A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person has better title to the land before the issuance of the Certificate of Occupancy, then the Court can revoke it.” A Certificate of Occupancy properly issued under the Land Use Act ought to be a reflection and an assurance that the title of the grantee is legitimate. It will however, in appropriate cases where it was obtained inappropriately be challenged, rendered invalid, null and void.”
per OGUNWUMIJU, J.C.A (PP. 26-27, PARAS. C-D)
See; ABUDULLAHI v HEDIMA (2010) LPELR – 3556 (CA).
The Osozka brothers had nothing to transfer and could not have transferred to Bishop who in turn sold to the defendant herein, the Defendant having bought nothing is not entitled to the certificate of occupancy, on this note the title fails and is hereby revoked.
The Claimant claim succeeds as having proved an authentic root of title over the defendant.
I resolve Issues 7, 8 & 9 in favour of the Appellant.

I invoke Section 15 of the Court of Appeal Act, 2016 to consider the Appellant’s claim, all materials having been laid before this Court, the Appellant has asked for general damages of Ten million naira.
InMR. AJIBOLA ADEROJU & ORS v KAMKA OLALERE (2014) LPELR – 54054 (CA), this Court held;
“The award for general damages is not based on assessment but rather on the opinion of a reasonable mind. From the facts discernible. The authority of ODULAJA V HADDAD (1973) 11 SC 357 held that: “General damages are distinct from special damages. They are such as the law presume to be direct natural and probable consequences of the act complained of.”
per DONGBAN – MENSEM, JCA (PP. 19 – 20, PARAS. E – A).

There is evidence that the Respondent broke into the land which had a dwarf fence and dissembled it, fenced and put huge gate, commenced building on the property and rushed the certificate of occupancy; the act of trespass is established. The Appellant had the land since and even though confronted the Respondent at the Police station.

In my view this was a matter that could have long been settled amicably based on the documentary facts and evidence verifiable, but had to go to full trial and appeal. It is in this vain, that I will award the sum of N2,500,000 as general damages for acts of trespass on the land in dispute.

He stated on oath the demolition of his building by the Respondent, he has copiously pleaded the extent of damages same in paragraphs 18, 19, 22 & 23 of the further amended statement of claim and paragraph 24 of the sworn statement of oath, paragraph 18 of statement on oath of CW2 and CW3. This evidence of demolition of the Appellant’s building and the particulars of special damages which was not challenged at cross examination.

The Supreme Court inENGR. YAKUBU IBRAHIM & ORS v SIMON OBAJE (2017) LPELR – 43749 (SC) held on what strict proof of special damages entails thus;
“it is obvious as shown on the record before us that the appellants’ attitude to the claims of damages made by the Respondent was a blanket denial of such structure and that there was no destruction and is the basis upon which appellants say the special damages had not been proved and should not have been granted by the learned trial judge. The learned Justices of the lower Court per Peter Odili (JCA) as she then was in the lead judgment disagreed with the appellants’ contention and had this to say in their judgment page 102 of the record of appeal as follows: – “…the items of special damages were properly stated in pleadings and the evidence sufficient as put forward by the Respondent since really the appellants neither countered those special damages in their own pleadings and in evidence merely dismissed the issue of injury of damages in an off – handed way. I am resting my view having referred to the case of Permanent Secretary v Akinlaye (2000) 14 NWLR (Pt. 686) 1000 at 105 per Ige JCA wherein she said: “1. Where a plaintiff is claiming some specific amount as special damages, he must particularize it and prove it strictly in order to succeed.

(Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 629, Oshinjinrin v Elias (1970) 1 All NLR 153 referred to 2. The standard of proof required from a plaintiff in support of a claim for damages does not mean an unusual or extra ordinary proof. (Imana v Robinson (1979) 3 – 4 SC 1, Adejumo v Ayantegbe (1989) 3 NWLR (pt. 110) 417 referred to).” I am in full agreement with the conclusion arrived at by their lordships of the lower Court which I also endorse same as unassailable. Furthermore, and in the case of Imana v. Robinson under reference (supra) at pg 23 of the report, this Court held that the term “strict proof” required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses, which are exactly known or accurately measured before the trial. The appellants, as rightly observed by the respondent’s counsel, dwelt so much on the volume and quantity of evidence to warrant special damages. See the case of SPDC Ltd v Tiebo VII & Ors (2005) 9 NWLR (pt. 931) 439 wherein this Court said: “…in other words, it is a general guide and arises from the fact that it is impossible to prescribe the quantity and nature of evidence required in a given case to justify entitlement to special damages. In some cases, it may be necessary to show documentary proof of the loss sustained, while in other, it may be unnecessary. The important thing is that the evidence proffered must be qualitative and credible and such as lends itself to quantification. Each case depends on its own facts and circumstances.” Pages 461 – 462 paragraphs F – B of the report. The appellants also contended that the items in the claim must be backed by receipts. As rightly submitted on behalf of the respondent, there is no strict requirement for this. I seek to say as shown on the record that the building was put up and the Appellants destroyed it; the existence of the building is not denied by the appellants. It is confirmed by the evidence on the record which is very overwhelming. There was also no contrary evidence adduced by the appellants that the building was not constructed with the items so stated in the claim. The claims are verifiable and the Appellants never challenged or contradicted the evidence by the Respondent. At pages 466 and 472 of the case of SPDC Ltd v Tiebo VII under reference further, it was also held that: “…Special damages are given in respect of any consequences reasonably and probably arising from the breach complained of no general rule can therefore be laid down as to what amounts to “strict proof”. Therefore an item of special damage need not to be proved with mathematical exactitude in every case in order to satisfy the strict proof…” The learned counsel for the appellants relied on the case of Adecentro (Nig) Ltd v Council, OAU (Supra) which facts as rightly submitted by the respondent’s counsel are distinguishable from the case in dispute from the case in dispute herein. In other words, evidence herein shows that a building was standing on plot F. 96 and it was also shown by unchallenged evidence that the appellants were on the plot on the day the building was destroyed and indeed carried out the destruction. The facts are not on all fours with the case under reference as this Court cannot arrive at the same decision. In considering the principles enumerated in the foregoing authorities, it is obvious that what the Respondent did in evidence was sufficient to prove his loses which were properly itemized and costed in pleadings and were not rebutted either in the statement of Defence or in the evidence of the defence in Court. The appellants did not show that the facts so found and accepted by the lower Courts were not borne out by evidence in the printed records or that there is miscarriage of justice or a violation of some principle of law or procedure. See again Durosaro v. Ayorinde under reference supra. There is no reason that I should disagree with the findings of the lower Court in affirming the trial High Court.”
per OGUNBIYI, JSC (PP. 14 – 19, PARAS. C – A)
See also; TEC ENGINEERING CO. (NIG) LTD & ANOR v SALISU (2018) LPELR – 46654 (CA); 7UP BOTTLING CO. v UGWU & ORS (2017) LPELR – 42685 (CA); AKITI v OYEKUNLE & ANOR (2015) LPELR – 24681 (CA); OGBONNA v OGBONNA & ANOR (2014) LPELR – 22308 (CA).

I adopt the succinct reasoning of the Apex Court in the above cited case as my own and state that the strict proof needed in support of a claim for special damages is no more that adducing credible evidence in support of the claim.

The appeal has merit and succeeds, the judgment of the High Court of Delta State is hereby set aside. The Appellant’s claim at the lower Court succeeds and I make the following orders;
1. That the claimant is entitled to the grant of a certificate of statutory right of Occupancy in respect of the land in dispute measuring approximately 100ft x 100ft lying and situate at Anyasiagu farmland, old Awai Road Asaba.
2. N2,500,000 (Two million, five hundred thousand Naira) being general Damages for acts of trespass of the Defendants
3. The sum of N1,235,259 on the footing of special damages for the building of the claimant destroyed by the Defendant and his agent.
4. An order of injunction restraining the Defendants, his servants, agents or privies from further acts of trespass, entering or staying on this land of the Claimant described hereinabove.
Cost of N300,000 is awarded to the Appellant.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having perused the draft copy of the Lead Judgment articulated by my learned brother Abimbola Osurugue Obaseki- Adejumo, JCA in this appeal, I agree that the appeal should be allowed and the Judgment of the trial Court be set aside.

The Appellant, as plaintiff, at the trial Court had established their case of purchase of the land in dispute under customary law and had been effectively put in possession by the family. The purported purchase of the same land by the Respondent as Defendant who had broken into same land upon a claim of title through a section of the family that had been adjudged as not being the authorized representatives had constituted that title defective and void not withstanding that it was evidenced by a certificate of occupancy.

I concur that the Appeal should succeed and the said title and its documentary presumptive evidential proof be revoked (cancelled) and the Appellant declared as being the one who is entitled to be so issued a Statutory Right of occupancy; and to an entitlement of Damages and costs in indemnity.

I adopt the consequential orders entered in the lead Judgment in that regard, therefore.

Appearances:

C. Agbata, Esq. For Appellant(s)

Ekeme Ohwuovole, SAN with him, O. P. Dafiaghor, Esq., Esse Ikporko and O I. Ogbonnaya, Esq. For Respondent(s)