Mr. Inok Edim Moses V. Mr. Nathaniel Onu & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 17th June, 2009.

The Respondent as Plaintiff in the Lower Court claimed against the Appellants as Defendant as follows in his amended Statement of Claim:

1. A declaration that the plaintiff is entitled to the Statutory right of Occupancy over all that properties situate of No. 3a Edim Otop close (west), covered by the plaintiffs survey plan No. EUE/OR/2056/95 dated the 5th of June, 1995.
2. Two hundred and Thirty thousand Naira as special damages against the 1st defendant for damaging the plaintiffs building on the said property at 3a Edim Otop close (west).
3. The sum of fifty thousand Naira being the money collected from the plaintiff forcefully and by tricks.
4. Two Million Naira as general damages against the defendants for their trespass on the said No. 3a Edim Otop close (west).
5. A perpetual order of injunction restraining the defendants and their agent, privies and assigns from further invasion of the plaintiff’s privacy.

The head of the family, the 2nd defendant died during the pendency of this suit. The 1st defendant continued with the defence of this suit and is now appealing against the judgment of the trial court.

The Appellant being dissatisfied filed his notice and nine grounds of appeal on 10th August, 2009. The Appellant articulated four issues for determination as follows:

1. THE LEARNED TRIAL JUDGE HAVING DECLARED THE PLAINTIFFS CERTIFICATE OF OCCUPANCY AND THE LEASES UPON WHICH THE CERTIFICATE WAS ISSUED NULL AND VOID, WHETHER HE OUGHT NOT TO HAVE DISMISSED THE CLAIMANTS CLAIM. (GROUNDS 1 & 5)
2. WHETHER THE LOWER COURT HAVING DECLARED NULL AND VOID THE TITLE DEEDS OF THE CLAIMANT, IT WAS CORRECT TO PROCEED TO GRANT AN INJUNCTIVE RELIEF AGAINST THE DEFENDANT FOR TRESPASS AND SPECIAL DAMAGES. (GROUNDS 2, 8 & 9)
3. WHETHER THE RELIANCE ON EXHIBIT U ARBITRATION REPORT BY THE LEARNED TRIAL JUDGE DID NOT OCCASION A MISCARRIAGE OF JUSTICE. (GROUND 6)
4. WHETHER IT WAS APPROPRIATE FOR THE LEARNED TRIAL JUDGE TO COMPARE THREE CONTRADICTORY SIGNATURES AND CONFIRM THAT THEY BELONG TO THE DECEASED FAMILY HEAD OF THE APPELLANT. (GROUNDS 4 & 7).

There being no issue articulated from ground 3, it would be deemed as abandoned. I therefore strike out ground 3, it, being abandoned.

Learned counsel for the appellant Joe Agi SAN submitted that in proof of the Respondent’s claim, for declaration of title to the land, he chose one of the five methods known to law i.e. presentation of documents of title to land. Amongst the documents presented are:

1. Exhibit C – A list of customary presentation
2. Exhibit C1& C2 Two receipt issued by B.S. Njubigbo & Associates issued in 1998.
3. Exhibit D & D1 Receipt issued by Ene-Obong & Sons Enterprises
4. Exhibit G Certificate of Occupancy
5. Exhibit Q Lease Agreement dated 18th July, 1997
6. Exhibit R Lease Agreement dated 18th July, 1977.

Counsel continued to state that Exhibits C, C1, & C2 were tendered to establish the first steps in a contract of sale of land and referred the court to the case of Brossette Manufacturing (Nig) Ltd. V. M/S Ola Illemobola Ltd. (2007) 14 NWLR pt 1053 page 109 per Ogbuagu JSC.

“Now, in the book authority of convincing laws and practice by Barnsley, 1973, Edition at page 4, it is stated that a transfer or sale of an estate in land, is divisible into two distinct stages, namely (1) the contract stage ending with the formation of a binding contract for sale (ii) the conveyance stage acclimating in the legal title vesting in the purchaser by means of the appropriate instrument under seal. As held in the above case – per Uwaifo JSC, it follows that it is only after a binding contract for sale is arrived at, that the need to pursue the procedure for acquiring title will arise”.

The appellant denied that these documents did not come from their deceased family head even though the Respondent insisted they were from their deceased family head.

The Respondent for the second stage tendered 3 conflicting and contradictory leases with a Certificate of Occupancy, namely Exhibits A, Q & R. counsel agreed that the trial Judge rightly found and held at page 112 of the Record of Appeal as follows:

“I see that indeed exhibits C1 and C2 were issued by B.S. Njubigbo & Associates to the claimant. However, it is stated to be for “customary presentation for a plot of land at No. 1A Edim Otop Close”. The Claimant says those receipts were issued to him by Late Chief Ekpenyong as Head of Oyo Family with whom the claimant negotiated for land No. 1A Edim Otop Close. The date on Exhibit C1 is 25th March, 1998, while that on Exhibit C2 is 9th June, 1998 on Exhibit X, it is stated that Late Chief Ekpenyong died on 29th December, 1995. How then could he have issued the claimant with Exhibits C1 and C2 in 1998? That is a physical impossibility … I find and hold that the recipients’ signature on Exhibits C1 and C2 was not that of Late Chief Ene-Obong”.

Also on page 115 of Record of Appeal, the trial Judge continued thus:

“I therefore declare Exhibit Q, the document PW1 said the Certificate of Occupancy was based on, null and void for telling lie about itself. I also declare the Certificate of Occupancy obtained based on Exhibit Q, Exhibit G in these (sic) proceedings, null and void”