Elder Godfrey Chinwo & Ors V. Isaac Chinwo & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

Before the Rivers State High Court (Coram: B.A. Georgewill, J) was the suit of the appellants, as the claimants, against the Respondents, as defendants, brought under the originating summons. The appellants were “claiming for an order that they do recover possession of land measuring 100 x 50 feet commonly known as Ohia Azuoro at Rumuodara Obio/Akpor Local Government Area on the ground that they are entitled to the possession and that the person(s) in occupation (are) in occupation without their license or consent.”

The appellant, claimants, claimed to be suing for themselves and on behalf of Chinwo’s family. The three named appellants and the 1st Respondent are brothers.

Their father is the 2nd Respondent, Elder Jacob Chinwo. The undisputed fact on the record shows that Elder Jacob Chinwo, 2nd Respondent, is the owner “of the disputed land. It is alleged in the supporting affidavit, that is the basis of the suit, that 2nd Respondent had made his intention known to his sons to the effect that the disputed land “should be reserved as security for his funeral because of his age to assist the family economically.” That the 2nd Respondent, the 6th son of the 2nd Respondent had gone “secretly” to the 2nd Respondent and “deceived” the old man to release the land to him and that the 1st Respondent, taking possession of the land, had started moulding blocks preparatory for a concrete house on the land. It is further averred in the supporting affidavit:

1. That the Rumuodara Council of Chiefs had judged the case and warned the defendant to deliver possession peaceably to the family but the defendant refused to obey or comply with the decision of Rumuodara Council of Chiefs. The proceedings of the said Rumuodara Council of Chiefs is attached thereto as Exhibit A. Originally, the 1st Respondent was the sole defendant. The 2nd Respondent, on his own application, was subsequently joined as the 2nd defendant to the suit of the appellants.

At the trial court the 2nd Respondent had deposed to an affidavit titled: AFFIDAVIT OF FACTS IN SUPPORT OF MY ALLOCATION OF OHIA AZUORO LAND TO MR. ISAIAH CHINWO, wherein he averred inter alia”

2. That I was the Person allocated the Ohia Azuoro land to the defendant (1st Respondent).
3. That the land was my personal property before I allocated it to him (1st Respondent) after he had Performed customary rites for me.
4. That I had earlier allocated lands to every of my other children including the claimants.
5. That I am the head of Chinwo family and the only surviving son of Chinwo.
6. That the only case I had over land was when I reported the 1st claimant to Rumuodara council of Chiefs for putting juju on the said land.
7. That the (1st Respondent) is on the land with my support till today.
8. That the Chinwo Family did not authorize the claimants to bring this suit.

The claimants, now appellant, did not dispute, challenge or contradict the 2nd Respondent on the foregoing averments. They did not file any further affidavit to refute these averments. It is trite that facts not challenged or controverted by the party against whom they are averred are deemed admitted. See OKELOLA v. ADELEKE (1999) 1 NWLR [pt.585] 55; TOTAL NIG PLC v. MORKAH (2003) FWLR [pt.143] 1343 at 1358. Facts admitted need no further proof.

They are, by dint of section 75 Evidence Act, taken as established. See also DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) ANLR 489 at 498. It is this fact that apparently informed the appellants, counsel at the trial court to concede that the joinder of the 2nd Defendant had devastating effect on the right of the claimants to maintain the suit. I note upon persuing Exhibit A attached to the 8 affidivt in support of the originating summons that the Rumuodara Counsel of Chiefs (A.K.A. RUMUODARA Supreme Counsel) acknowledged and upheld “that the land in dispute should remains as the property of Eleder Jacob Chinwo.” Exhibit ‘A’ therefore does not support the contention of the appellants, as claimant, that the disputed land was the property of chinwo Family. The totality of facts before the trial Court points irresistibly to the 2nd Respondent’s sole and exclusive ownership of the land in dispute, also called Ohia Azuoro land.

At the trial court Mr. Achuonye of counsel to the Respondents submitted inter alia that these appellants, as the claimants, have no legal right to institute the action as the land belongs exclusively to the 2nd Respondent and urged that the suit be dismissed. Eze Kpaniku, Esq. who appeared for the appellants, as claimants, conceded that the presence of the 2nd Respondent, upon his joinder, had adversely affected the locus of the claimants in the suit. In his short judgment the learned trial judge held inter alia:

i. That the claimants lacked locus to institute and maintain the action against the Defendants particularly the 2nd Defendant (Respondent) “who is the legitimate owner of the land in dispute and who, it has not been shown lacks the legal capacity to deal with his own land as it please him.”

ii. That without the requisite locus standi the claimants cannot in law maintain this suit and this suit is accordingly liable to be dismissed.

iii. That upon claim consideration of the reliefs sought by the claimant alluding to their right to give consent to the 1st Defendant to be in possession, “this claim is one not based on any fact as the admitted evidence is that the land belong to the 2nd Defendant personally and not to the claimants. I therefore do not see how the 1st Defendant to go into possession of the land in dispute or for the 2nd Defendant, the admittedly rightful owner to dispose of his land as it please him”.

No ground of appeal attacks/challenges this specific finding no iii above. I will come to it. The learned trial judge holding that the suit lacks merit in its entirety, dismissed it and added by Way obiter dictum:

I put on record my appreciation to the to the claimants’ counsel in his candid appreciation of the Legal position of the claimants upon the joining of the 2nd Defendants which clearly knocks out the bottom of the claimants’ right to maintain this action. This was made a ground of complaint in the appeal.

In the Notice of Appeal filed on 2nd March 2007 against the judgment delivered on 19th February, 2007 the appellants’ claimants at the trial court, had two grounds of appeal in paragraph said Notice of Appeal. That is-