Senior Apostle Samuel Osazuwa & Ors V. Johnson Isibor Anor (2003)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

In the High Court Warri, Delta State, presided over by Kuejubola, J., the appellants as plaintiffs sued the respondents as defendants for the following:
1. Declaration that the plaintiffs being the beneficial owners thereof are the persons entitled to the grant of Certificate of Occupancy in respect of the piece or parcel of land, marked as Plot 4 in Block XXXIX (39) in former Bendel, but now Delta Development and Property Authority’s Igbudu Scheme, Warri, within jurisdiction of this Honorable Court, measuring approximately 1213.12 square metres.

2. Declaration that the sale/lease/assignment/transfer of the said piece or parcel of land by the 1st defendant to the 2nd defendant, without the knowledge, authority, consent and/or approval of the plaintiffs is null and void ab initio and of no effect whatsoever.

3. An order compelling the 1st defendant being an agent and/or trustee of the plaintiffs’ church to transfer and/or assign the ownership of the aforementioned piece or parcel of land to the plaintiffs, who are the beneficial owners thereof.

4. Perpetual injunction restraining the defendants by themselves, their servants, agents and/or assigns whosoever, from doing anything or continuing to do anything on the said piece or parcel of land and/or dealing with the piece or parcel of land in any manner without the knowledge, authority, consent and/or approval of the plaintiffs.

The appellants’ case from the pleadings and evidence is that the 1st respondent was the second in command of their church and he agreed to purchase a parcel of land for the church in his name with a promise to transfer it subsequently, to the church. However, upon acquiring the said parcel of land, instead of transferring it to the church, the 1st respondent sold the land to the 2nd respondent.

The 1st respondent however, denied the appellants’ claim, alleging that the land in dispute, Plot 4 Block 39 of Igbudu Scheme of Bendel Development and Property Authority (BDPA) is not the one allocated to the church, rather, that it is the 1st appellant who applied for and was granted Plot 12 Block 41 of BDPA Housing Estate, Igbudu, which is the property applied for by the church in the 1st appellants’ name. The 2nd respondent admitted that he bought the land in dispute from the 1st respondent but insisted that he paid for it after all the relevant documents revealed that the 1st respondent was the rightful owner.

In it’s Judgment dated the 27th of January, 1999, the lower court held, thus:
1. “From the plaintiffs claim and evidence in court, the pleadings and evidence are completely devoid of any of the five different ways or methods of proving or establishing ownership of land in dispute as in the following cases: Idundun v. Okumagba (1976) 9-10 SC 227; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511.

There is no scintilla of evidence before the court to show that the plaintiffs have even proved one of the root of title to sustain plaintiffs’ claim for declaration of title.” (Page 63-64 of the record).

2. “It is trite law that in a claim for declaration of title to land, the statement of claim, the survey plan and the oral evidence in court must speak the same language with respect to the area of land claimed. See the case Ijade v. Ogunyemi (1996) 9 NWLR (Pt. 470) 17. The plaintiffs by their pleadings and evidence in court have not established any scintilla of evidence in this regard.” (page 65)

3. “It is difficult to accept and believe the plaintiffs’ case in the absence of any written evidence where it was agreed by the 1st defendant that he would purchase the land in question in his own name and later transfer it to the plaintiff’s church.” (page 65 – 66)

4. “An unregistered receipt evidencing payment in respect of land, even though it may ex-facie qualify as an instrument within the con of the provisions of the Land Instrument Registration Law is not admissible in evidence to prove or establish title … All the receipts tendered by the plaintiffs even if it bears the name of the church (although it bears the name of the defendant) will not suffice. See Tewogbade v. Obadina (1994) 4 NWLR (Pt.338) 326”

5. “The 2nd defendant successfully established that he carried out thorough investigation as to the ownership of the land before he paid for the land he bought from the 1st defendant. He is indeed a bona fide purchaser for value without notice of any interest thereon.” (page 65)

The learned trial Judge then concluded as follows on page 68 of the record:
“The plaintiffs have failed to establish title. I hereby, dismiss the claim for declaration of title to the land in question as per relief (1). The plaintiffs have also failed on the preponderance of evidence, and balance of probabilities to prove their case with regards to the prayers sought in the 2nd, 3rd and 4th reliefs. The remedy of Injunction will not avail where as in this case, plaintiffs have not succeeded in the claim for declaration of title to the said land. Accordingly, therefore the entire action fails and is hereby dismissed.”