Michael Achilihu & Ors V. Ezekiel Anyatonwu (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The respondent/cross-appellant as plaintiff commenced the action in the then Imo State High Court Isiala Ngwa Judicial Division holden at Okpuala Ngwa (now Abia State) in Suit No. HIN/2/84 against the appellants/defendants jointly and severally wherein he claimed the following reliefs in paragraph 16 of the Amended Statement of Claim:-

“1b (i) A declaration that the land known as and called “OKPULO ALAOCHA” situate at Uratta Umuocham Village in Isiala Ngwa Local Government Area within jurisdiction of this Court is in the possession of the plaintiff who is entitled to the grant to him of a Certificate of Occupancy in respect of the said land.

(ii) N1000.00 (One Thousand Naira) damages for trespass in that in or about January, 1984 and on diverse days before and thereafter the defendants without the leave or licence of the plaintiff broke and entered the said land in concert cleared the same for purposes of farming, damaged the oil-palm plantation, cut the oil palm fronds planted on the said land by the plaintiff and destroyed one thousand cassava plants thereon.

(iii) A perpetual injunction restraining the defendants by themselves, their people, their servants and/or agents from farther interfering with the plaintiff’s rights to and interests in the said land”.

The High Court gave judgment in favour of the plaintiff on 14/10/1996. The defendants were dissatisfied by the said judgment and accordingly appealed to the Court of Appeal, Port Harcourt Division. The appeal was dismissed. Aggrieved, the appellants have further appealed to the Supreme Court in their Notice of Appeal filed on 14/2/2003 which contained four grounds of appeal. The respondent was equally dissatisfied with part of the judgment and so cross-appealed on two grounds of appeal filed on 18/2/2003. The respondent also filed Notice of Preliminary Objection. At the hearing of the appeal, learned counsel for the respondent/cross-appellant applied to abandon the preliminary objection and it was accordingly struck out together with the argument in the briefs.

In the substantive appeal the appellants formulated the following three issues for determination: –

1. Whether the land in dispute “OKPWO ALAOCHA” is the personal property of late Lazarus Ogbuevule ‘the pledgor’ and not the communal or family property of appellants (grounds 1, 3 and 4 of the appellants’ grounds of appeal)
2. Whether the appellants were in trespass when they entered the land in dispute in 1984 after redeeming it and regaining possession from the respondent during the arbitration by the Amala Ohuama Uratta in 1983 (grounds 2 and 4 of the appellants’ grounds of appeal)
3. Whether the Court of appeal was wrong in holding that there was no credible and reliable evidence of outright sale of the land in dispute to the respondent, and in therefore reversing the decision of the High Court to grant the respondent a declaration of title (grounds 1 and 2 of the cross-appeal)

The respondent/cross-appellant distilled two issues from the main appeal and a lone issue from the cross-appeal. The issues arising from the main appeal are:-

1. Was the land in dispute the personal property of Lazarus Ogbuevule and had Lazarus Ogbuevule any legal title to pass to the respondent
2. Whether the respondent established his claim on trespass and whether he could be bound by a decision of a native arbitration to which he did not submit and where he was not represented to be heard on his own version of the dispute.
3. Whether the learned Justices of the Court of Appeal were right in unanimously holding as they did that no credible witnesses authenticated the conversion of the pledge to that of an outright sale thereby deleting the words: “who is entitled to the grant to him of the Certificate of Occupancy in respect of the same land” from their final order.

In arguing the main appeal, learned counsel for the appellants referred to paragraphs 2(b), 2(c), 2(d), 9, 10, 15, 16, 23 and 24 of the statement of defence which were reproduced as paragraphs 3(b), 3(e), 3(d), 9, 10, 14, 15, 16, 24 and 25 of the amended statement of defence showing that the land in dispute was communal property which was held in trust by the pledgor but which the plaintiff failed to join issue on in the amended statement of claim. He also referred to the evidence of DW1, DW2, DW3 and DW4 and submitted that once a party refuses to meet the facts directly either by admitting them, he is taken to have admitted them. He went further to contend that even if it can be said that the respondent joined issue on the allegation that the land in dispute is the family property of the appellants, they procured preponderance of evidence in support of their claim. He submitted that the decision of the

Court of Appeal which is predicated on the doctrine of laches and acquiescence flies in the face of their own finding that the land in dispute was on pledge and the possession of the said land by Lazarus Ogbuevule was due to his being the family head. As family head he could do anything with the land short of selling it or otherwise alienating the legal title to the land. He argued that the thumbprint of Job Amalatra in Exhibit ‘A’ could not help the case of the respondent as that Exhibit was the 1968 pledge agreement which he witnessed and not the alleged 1970 and 1971 out-right sale transaction. It is argued that even if Job Amalaha was part of the 1968 pledge transaction, his actions and those of Lazarus Ogbuevule cannot be held to bind the other numerous members of Umuagbaghigba family nor can such actions convert the land in dispute from family property to the personal property of Lazarus Ogbuevule.

On issue 2, it is argued that the Court of Appeal made a perverse and unexplainable finding when it held that the trial court was right not to place reliance on Exhibit ‘E’ which the respondent seriously disputed because he was not a party to the making of the document. Learned counsel argued that Exhibit ‘C’ tendered and relied on by the respondent and preferred by the trial court is in agreement with Exhibit ‘E’ on all points except the finding by the arbitrators that the purported conditionality of 94 years clogs the appellants’ equity of redemption notwithstanding the fact that the land was on pledge to the respondent. It is learned counsel’s submission that Exhibit ‘C’ is not superior to Exhibits ‘E’ and F but of co-ordinate status and since Exhibits ‘E’ and F were earlier in time, they prevail over Exhibit ‘C’.

The arguments on issue 3 relate to the appellants’ response to the cross-appeal where the respondent was quarrelling with the finding of the court below that there was no evidence of the conversion of pledge of the disputed land to an outright sale. Learned counsel argued that if this Court finds and holds that the land in dispute is the family property of the appellants held in trust for them by the late Lazarus Ogbuevule, then all the evidence in the world that the said transaction between Lazarus Ogbuevule and the respondent transmuted from pledge to sale will serve no purpose because such sale of family property by one member acting alone will be void.

In his response learned counsel for the respondent referred to the receipt Exhibit ‘A’ which was given by the late Lazarus Ogbuevule in respect of the transaction witnessed by Job Amalaha, a principal member of the appellants’ family. It was argued that if the land in dispute was family land, Job Amalaha would have challenged the transaction and refused to sign Exhibit ‘A’. It is the contention of learned counsel that Lazarus Ogbuevule claimed the land as his personal property and issued Exhibit ‘A’ in his own name as the owner of the land in dispute and since no member of the appellants’ family challenged the transaction which was made in 1968 when the respondent entered into possession and cultivated the land openly with palm trees which he harvested during the lifetime of Lazarus Ogbuevule coupled with the subsequent sale of more portions of contiguous land in 1971, the receipt covering the 1968 transaction and that of 1971 should be read as one document. He maintained that Lazarus Ogbuevule transferred the land in dispute to the respondent and this can be inferred from the amended statement of claim and Lazarus Ogbuevule did not require the consent of anybody to alienate his land to the respondent. He submitted that both the High Court and the Court of Appeal were right in holding that the land in dispute was the personal property of Lazarus Ogbuevule and not family property since the appellants did not challenge the transactions during the lifetime of Lazarus Ogbuevule. Learned counsel submitted that these are concurrent findings of fact that should not be disturbed. It is submitted that where parties submit to customary arbitration, they cannot later reject the judgment of that customary arbitration. For this proposition learned counsel cited the following cases in support: Michael Ojibah v. Ubaka Ojibah (1991) 5 NWLR (Part 191) 296; Raphael Agu v. Christian Ikewuibe (1991) 3 NWLR (Part 180) 385. Learned counsel maintained that the dispute first went before Eze Asuoha of the community and the Eze and his cabinet gave judgment in favour of the respondent but that the respondent did not submit to the jurisdiction of the Amalas, which is an inferior tribunal to that of Eze Asuoha. Since the respondent did not attend the Amala arbitration, the decisions of that tribunal contained in Exhibit ‘E’ is not binding on him.

On the cross-appeal, learned counsel for the respondent/cross appellant referred to paragraphs 5 and 6 of the statement of claim and the evidence adduced both oral and documentary and submitted that there was abundant and sufficient, cogent, credible and unimpeached evidence to entitle the respondent to full judgment. He urged this Court to restore the final order made by the trial court which entitled the plaintiff/respondent to a grant of the certificate of occupancy in respect of the same land which was deleted by the court below. Learned counsel urged this Court to dismiss the main appeal.