NNANYELUGO C. ODUKWE v. MRS. ETHEL N. OGUNBIYI (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

In the High Court of former Anambra State of Nigeria, the plaintiff, who is now the respondent, instituted an action against the appellant, who therein was the defendant, claiming as follows:

“1. N500.00 (Five hundred naira) for trespass committed by the defendant and/or his servants on the plaintiff’s land which is situate and lying at Omagba Layout in Onitsha and which piece of land is correctly described as No.28 Water Works Road Onitsha. The annual value of the said land is worth N20.00.

2. An injunction restraining the defendant, his servants and/or his agents from further trespass upon the said plaintiff’s piece of land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The case accordingly proceeded to trial and parties testified on their own behalf and called witnesses.

Both parties traced their root of title to the land in dispute to the Isagba family or Ogbolieke village Onitsha. It was not in dispute that members of this family were the original owners of an extensive piece or parcel of land of which the land in dispute formed a part. The plaintiff’s case was that she purchased the land in dispute from P.W. 1, Charles Ogbuli, in 1959 but completed full payments thereof in 1965. Exhibits D – D3 were tendered in support of these payments. Following this, a deed of conveyance, Exhibit E, dated the 5th day of December, 1966 was executed and duly registered as 20/20/456 in the Lands Registry at Enugu. The said Charles Ogbuli had claimed that the land in dispute which he sold to the plaintiff belonged to him personally as his share of their Isagba family land at Omagba, Onitsha. It was in 1954 that the Isagba family partitioned its family land amongst its members. The plaintiff’s case is that the land in dispute, following the partition of 1954, ceased to be family property and that P.W.1, Charles Igweze Ogbuli, to whom the family granted it as a result of the partition, validly sold it to the plaintiff in 1959. The head and some members of the Isagba family in three consolidated suits before Kaine, J. in 1960 unsuccessfully challenged the said partitioning of the lsagba family land. This was by Exhibit A at the Onitsha High Court, Charles Ogbuli not only sold the land in dispute to the plaintiff, he also sold adjoining plots of land to several other persons, all of whom he put in possession of the land, including the plaintiff. The plaintiff was in such possession of the land in dispute before the defendant came to disturb her possession of the land hence this action.

The defendant, for his own part, claimed to have bought the land in dispute from one Philomena Ejoh to whom the land was allegedly granted by the Isagba family in 1962. Her grantor was one Simon Ogbuli, the then head or the said Isagba family or Ogbolieke village, Onitsha. Two years later, the said Philomena Ejoh transferred her interest in the land to the defendant in 1964. Exhibits F and G were tendered in support of the defendant’s title to the land in dispute. The defendant contended that the land in dispute at the time it was sold to the plaintiff was Isagba family land which could only be validly sold by the head and the principal members of the family. The defendant made no survey of the land in dispute following his alleged purchase nor was it demarcated with boundary pillars. It was also not registered in the Lands Registry at Enugu. He was obliged to make a plan, Exhibit B C, only after the said defendant had been sued to court in 1982. He admitted that his bulldozer might have damaged existing beacons on the land, although he was not aware that this infact happened. The defendant in the course of the trial

subsequently obtained a certificate of occupancy, Exhibit H, in respect of the land in 1983 under the Land Use Act, 1978.

At the conclusion of hearing, the learned trial Judge, Awogu, J, as he then was, after a careful review of the evidence, found for the plaintiff on the 4th day of April, 1985. N500.00 general damages for trespass and perpetual injunction were awarded to the plaintiff against the defendant.

Being dissatisfied with the said judgment, the defendant lodged an appeal against the same to the Court of Appeal, Enugu Division, which in a unanimous decision affirmed the judgment of the trial court on the 28th day of March. 1988. Aggrieved by this decision of the Court of Appeal, the defendant has further appealed to this court. I shall hereinafter refer to the plaintiff and the defendant in this judgment as the respondent and the appellant respectively.

Pursuant to the rules of this court, the appellant, through his learned counsel, settled and filed his brief of argument on the 2nd of January, 1992. The same was duly served on the respondent whose time for filing her brief of argument expired on the 10th day of March, 1993. She filed no brief and has since made no effort to apply for an extension of time within which to file the respondent’s brief of argument.

The five issues identified on behalf of the appellant for the determination of this appeal are as follows –

“1. Whether the Court of Appeal was right in holding, per Macaulay, JCA, that issues Nos. 1 and 2 in the appeal before it raised synthetic issues and were not germane to the issues properly arising out of the judgment of the High Court in this case.

2. Whether the Court of Appeal was right in affirming the High Court’s decision which placed on the appellant, the onus of proving non-partition of the Isagba family land, claimed to have been partitioned by the respondent’s vendor, and the onus of proving that the land in dispute did not form part of the land litigated upon in 1960.
3. Whether the Court of Appeal was right when it affirmed the High Court’s decision that the appellant’s certificate of occupancy, Exhibit “H”, was obtained by fraud, whereas the issue of fraud was neither specifically pleaded nor led in evidence by the respondent in the High Court.
4. Whether the Court of Appeal was right in applying the doctrine of lis pendens as it did in this case.
5. Whether the Court of Appeal was right when it affirmed the High Court’s grant of a right of statutory right or occupancy to the respondent and its orders that the appellant’s certificate of occupancy be cancelled and instead, that a certificate of occupancy be granted to the respondent, whereas these were not among the reliefs claimed by the respondent in the action before the court.”

As I have already indicated, the respondent up to the date this appeal was heard did not, in compliance with the provisions of Order 6 rule 2 of the Supreme Court Rules, 1985, and amended, file any brief of argument. Consequently, the appeal was heard on the appellant’s brief only.