Apugo v. Ugoji (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Lead Judgment)

This appeal is against the judgment of the Court of Appeal, Owerri Division delivered on 29th January 2019, which set aside the judgment of the High Court of Abia State, Umuahia Judicial Division delivered on 12th January 2016 in favour of the present appellant and dismissed his suit at the trial Court.

The facts of the case instituted at the trial Court vide a Writ of Summons filed on 13/12/2000 and a Statement of Claim filed on 15/1/2001 are as follows:
The appellant, as claimant granted a Power of Attorney over a large expanse of land known as UZO IBI UMUOGELE OCHA situate, lying and being at Nkata Ibeku, Umuahia, which is delineated in Survey Plan No. HAS/IM/15/91 and measuring 4.4984 hectares, in favour of the respondent for the purpose of building a primary school and Skill Acquisition Centre (Technical School) in his village, Nkata Afarata Ibeku, Umuahia, Abia State. It was an irrevocable Power of Attorney.

The conditions for the grant were as follows:
​(a) That the respondent would award three scholarships each to children in the primary school and three in the technical school annually.

(b) The scholarships were to be awarded to the children in the name of CHIEF B.B. APUGO FOUNDATION SCHOLARSHIP.

(c) It was agreed that the scholarship scheme would take off in the 1992/1993 academic session.

The Scheme did not take off, as agreed. The respondent asked for more time. It was the appellant’s case that it was agreed between them that the scheme would be pushed back to take off in 1998. However, the respondent, according to the claimant, refused to sign the agreement prepared in this regard but rather went ahead to obtain a certificate of occupancy in respect of the land, by representing to the state government that the property in dispute belonged to the church.

It was the respondent’s contention that there was no forfeiture provision in the irrevocable Power of Attorney granted to him and that pursuant to the powers granted to him under the said Power of Attorney, he had transferred the land to the Incorporated Trustees of the Roman Catholic Diocese of Umuahia.

The appellant sought the following reliefs against the respondent vide paragraph 40 of his statement of claim:

”40. Wherefore the plaintiff has suffered damage to his political and philanthropic career and therefore claims from the defendant as follows:

1. A declaration that the Plaintiff is entitled to the statutory right of occupancy to, over and concerning that lot, piece and portion of land known as and called UZO UBI UMUGELEOCHA situate and being at Nkata Ibeku Umuahia, within the Court’s jurisdiction which is particularly delineated in Survey Plan No. HAS/IM/15/91 and measuring 4.4984 Hectares in area.
2. A declaration that the agreement made between the Plaintiff and the Defendant dated 16/12/91 concerning the said land has become determined by reason of breaches of the terms thereof by the Defendant.
3. An order of Court granting forfeiture of the donation of the said land against the defendant.
4. An order of perpetual injunction restraining the defendant by himself through his servants, agents, successors in office, representatives by any name called from trespassing into the land or preventing the Plaintiff in any manner whatsoever from exercising maximum acts of ownership over the land known as UZO UMUOGLE OCHA situate at Nkata

Ibeku, Umuahia within the jurisdiction of this Honourable Court and covered by the Power of Attorney dated 16/12/91.

5. Fifty Million Naira against the defendant, being general damages suffered by the Plaintiff by reason of the said breaches.”

The respondent filed his statement of defence wherein he conceded that the primary school did not take off until 1994/1995 while, as at the time the statement of defence was filed, the Technical School was yet to take off notwithstanding the completion of the physical building, due to the huge expense involved in acquiring equipment and the procurement of teachers and other staff necessary for the effective take off.

It was averred that the appellant was aware of these constraints. The respondent also contended that the land was being used for the purpose specified in the grant and denied donating or selling it to any third party.
​
After the exchange of pleadings, evidence was led in respect of each party’s case and documents tendered. At the conclusion of the trial and after a careful consideration of the parties’ written addresses, the learned trial Judge entered judgement in favour of the plaintiff/appellant herein as follows:

1. A declaration that the claimant is entitled to the statutory right of occupancy to, over and concerning that lot, piece and portion of land known as and called UZO UBI UMUOGELE OCHA situate and being at Nkata Ibeku, Umuahia within the Court’s jurisdiction which is particularly delineated in Survey Plan No. HAS/IM/15/91 and measuring 4.4984 hectares in area.
2. The defendant is ordered to negotiate/liaise with the claimant within thirty days of this judgment to resolve issues pertaining to the grant.
3. That upon the failure of the defendant to do so within the stipulated time, an order of forfeiture will take effect against the defendant and a perpetual injunction will come into force restraining the defendant, his servants, agents or successors by any name called from trespassing into the land covered by the Power of Attorney registered as 55 at page 55 in volume 9 of the Lands Registry Umuahia.
4. The claimant is awarded general damages fixed at One Million Naira.
   ​
   The respondent herein was dissatisfied and appealed to the Court below. In allowing the appeal, the Court held inter alia:

a. That the trial Court had no jurisdiction to grant reliefs 2 and 3, which were not sought by either of the parties;
b. That the Incorporated Trustees of the Roman Catholic Diocese of Umuahia was a necessary party that ought to have been joined in the action.
c. Issue 3 was resolved in the respondent’s favour having regard to the Court’s finding on Issue 1.
d. Issue 4 was resolved in favour of the respondent as the Court held that the respondent validly exercised his powers under the Power of Attorney to transfer title to the Incorporated Trustees of the Roman Catholic Diocese.