Edwin Chukudulue Udengwu V Simon Uzuegbu & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

This is an appeal from a judgment of the Court of Appeal, Enugu Division, given on 14th June, 1994. It upheld the decision of the High Court at Awka in which the suit of the appellant (as plaintiff) was dismissed on 8th June, 1992. The appellant had sued the five respondents (as defendants) for (a) N500.00 as general damages for trespass to the land in question and (b) perpetual injunction against further trespass. As a result of the issues joined on the pleadings, it became apparent that ownership of the land was what was really in dispute.

In regard to the judgment of the Court of Appeal, the appellant has set down three issues for determination of the appeal he has brought against it. The issues read:

“(1) Whether the Court of Appeal was right in dismissing the appeal of the appellant after it had held that the fact of Okpalauzuegbu farming the land in dispute jointly with Okpalansofor, the admitted owner of the land, did not confer title on the children of Okpalauzuegbu

(2) Whether the respondents’ defence which rested on the title of Okpalansofor’s family to the land in dispute defeated the case of the appellant

(3) Whether the Court of Appeal was right in dismissing the appellant’s appeal in its entirety when it had not considered all the issues in his case”

The respondents in their brief of argument raised one issue as follows:

“Whether the court below was right in dismissing the appellant’s appeal when it held that the sale of Okpalansofor’s family land by Dominic as his own to the appellant is void.”

An essential argument canvassed by the appellant’s counsel, particularly under issues 1 and 2, is that the two courts below did not advert their minds to the evidence and failed to evaluate the same, but decided the case on an issue not raised by the parties. In reference to the plaintiff/appellant’s case, learned counsel contended thus in the appellant’s brief of argument:

“It was a straightforward case worthy of credence. But the learned trial Judge disbelieved him. Not because he evaluated his case and found it wanting, he did not do so, but because he suddenly went off on a tangent and began to examine whether Dominic had the capacity to sell to the appellant the land in dispute, and whether a person can sell family land. He lost sight of the case of respondents completely, which he should have weighed with the case made by the appellant; and he gave judgment based on the new issue raised by himself. He said nothing more about the rights and liabilities of the respondents in the case. He left the decision on their rights hanging in the air. The Court of Appeal, unfortunately, followed this mistaken lead. Instead of deciding the case between the parties before it, it also went off on a tangent and gave a decision on an issue between Dominic and Michael, who were not before the court…….

With reference to issue No. 2 both the judgment of the trial court and the judgment of the Court of Appeal rested on the basis that Dominic Okpalansofor sold land that belonged to his family without the consent of a principal member of the family. They held the sale was void and the appellant got no title.”

The main argument put forward in the respondent’s brief of argument prepared by Mr. G.E. Ezeuko, SAN, to meet the above submission is as follows:

“Our courts have by their decisions recognised three categories of dealing with family land as well as their legal effects. In Ekpendu & Ors. v. Erica (1959) 4 FSC 79, the Federal Supreme Court held that a sale or lease of family land by the family head without the consent or participation by principal members of the family is voidable. A sale or lease of such land by the principal members of the family without the concurrence of the head of the family is void ab initio.

A third category is a sale of the family land by the head of the family as his own. The Supreme Court has held that such a sale is void ab initio. See Solomon & Ors. v. Mogaji & Ors. (1982) 11 S.C.; Kalio & Anor. v. Woluchem & Anor. (1985) 1 NWLR (Pt. 4) 610.