Ohaegbu & Ors V. Regd Trustees Of The Capuchin Friars Minor Nigeria (2022)
LAWGLOBAL HUB Lead Judgment Report
UWANI MUSA ABBA AJI, J.S.C.
The Respondent/Plaintiff acquired the land in dispute from the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese by a Deed of Assignment dated 24/5/1997. The Respondent’s grantor acquired their interest over the land in 1975 from Nkwelle Ezunaka community and in 1983 had it surveyed and placed survey beacons EA38869 and EA388875 thereon. Subsequent to the survey, the Respondent’s grantor (Nkwelle Ezunaka community) on 21/2/1985 executed a memorandum of confirmation of grant of land under native law with the other grantor (the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese). Thus, the earlier grant of 1975 was confirmed in writing. The Appellants however counter-claimed that the land in dispute originally belonged to Oze community. Judgment was given in favour of the Respondent by the trial Court and affirmed by the lower Court, hence this appeal by the Appellants.
There is however a preliminary objection for the dismissal of this appeal filed by the Respondent on the grounds that the Appellants did not obtain the requisite leave required to initiate this appeal contrary to Section 233(3) of the 1999 Constitution (as amended).
The Respondent’s objection is that none of the three grounds in the notice of appeal filed by the Appellants is a ground of law to enable the Appellants appeal as of Law. Thus, that the leave of this Court is needed for same to be entertained. Furthermore, he submitted that by Order 2 Rule 32 of the Supreme Court Rules, 1999 (as amended), leave to appeal concurrent findings shall be granted only in exceptional circumstances, which are not present in this appeal. He urged this appeal to be dismissed.
The Appellants’ learned counsel responded that an appeal that seeks the interpretation of Section 128(1) of the Evidence Act is certainly not an appeal on ground of fact. Similarly, that this appeal querying the failure of the lower Court to apply the principle of nemo dat quod non habet is not an issue of fact. Thus, that a ground of appeal that complains of misunderstanding by the lower Court of the law to the facts already proved or admitted is a ground of law. He relied on UMANAH V. NDIC (2016) LPELR-42556(SC). He prayed this Court to dismiss the preliminary objection.
The Appellants 3 grounds of appeal were stated thus:
- Ground one: Error in Law: The learned Justices of the Court of Appeal erred in law when after stating the correct principle of law on issue of possession and ownership of disputed land, failed to apply it in the present suit and in so doing, arrived at a wrong decision which occasioned injustice.
- Ground Two: Error in Law: The learned Justices of the Court of Appeal erred in law when they expected the Appellants’ witnesses to give oral evidence as to the content of a document (Judgment) already admitted in evidence as Exhibit D2 by the trial Court.
- Ground Three: Misdirection in Law: The learned Justices of the Court of Appeal misdirected themselves in law when after concurring with the trial Court that the doctrine of lis pendens is not available to the Appellants, they failed to consider the doctrine of nemo dat quod non habet in view of the apparent content of Exhibit D2.
The fact that a ground of appeal is christened “error in law” does not make it a ground of law. Having critiqued the Appellants’ 3 grounds of appeal, I am of the informed view that ground 2 is a ground of mixed law and fact. In SHANU V. AFRIBANK (2000) 13 NWLR (PT. 684) 392, it was held that what is required in distinguishing a ground of law and mixed law and fact is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case, it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law, in which case it would amount to question of mixed law and fact.
In the present appeal, the Respondent’s Counsel questioned the oral evidence of the Appellants’ witnesses to the content of Exhibit D2 (a document/Judgment) already admitted in evidence by the trial Court. This is obviously an evidence or fact disputed by both the Appellants and the Respondent on the admissibility of Exhibit D2. Thus, it is a ground of mixed law and fact. I therefore borrow a leaf from the simplified distinction drawn by my learned brother between a ground of law and that of mixed law and fact. When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence, grounds of appeal challenging such conclusions are grounds of mixed law and fact. Where the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is in this latter case; it is a conclusion of law coupled with the exercise of discretion. See Per CHIMA CENTUS NWEZE, JSC, in ROYAL HOMES LIMITED & ANOR V. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR (2021) LPELR-53382(SC) (PP. 10-11, PARA. C-C).
I accept the Appellants’ submission on grounds 1 and 3 to be grounds of law. Nevertheless, because the Respondent came by way of preliminary objection and not by motion, I cannot grind or abate this appeal on one point since grounds 1 and 3 are standing tall as grounds of law. Thus, the preliminary objection is refused and hereby fails. I shall give listening ears to the appeal of the Appellants in the interest of justice and fair hearing.
The Appellants featured two issues for determination thus:
- Whether the Court of Appeal correctly interpreted Exhibit D2 (Judgment in Suit No. O/197/ 80) vis-a-vis the provisions of Section 128(1) of the Evidence Act.
- Whether the Court of Appeal was right in failing to apply the doctrine of nemo datquod non habet against the Respondent’s title in view of the contents of Exhibit D2 (Judgment in Suit No. O/197/80) after concurring that the doctrine of lis pendens is not available to the Appellants.
The Respondent distilled two issues thus:
- What is the evidential value of Exhibit D2 vis-a-vis the provisions of Section 128(1) of the Evidence Act, 2011 (as amended) and whether it supports the case of the Appellants.
- Whether the Court of Appeal was right in holding that the doctrine of lis pendens is not available to the Appellants.
I shall consider the Appellants’ two issues together.
The submission of the learned Counsel to the Appellants is that by Exhibit D2 (the judgment of lyizoba J.); Nkwelle Ezunaka community does not have authority over the Oyolu Oze land but only Oze community and Isima family of Okoligbo family, Umudei village, Onitsha, shall administer, enjoy, dispose and/or appropriate Oyolu Oze land. That the judgment having not been set aside, binds the parties. He relied on ROSSEK V. ACB LTD (1993) NWLR (PT.312) AT 434. He argued that since Exhibit D2 dealt with part of the land in dispute, it was wrong for the lower Court to demand viva voce evidence on the content of Exhibit D2. He placed reliance on BONGO V. GOV. ADAMAWA STATE (2013) 11 NWLR (PT.1339) AT 444. He accordingly urged that a valid root of title can only be derived from members of Oze community and Isima family of Okoligbo family, Umudei village, Onitsha. His submission therefore is that since by Exhibit D2, the Respondent’s predecessors-in-title have no valid title to transfer to the Respondent in line with the doctrine of nemo dat quod non habet, the sale to the Respondent is null ab initio and the doctrine of lis pendens favours the Appellants. He urged this Court to allow the appeal and set aside the judgment of the Court of Appeal.
The Respondent’s learned Counsel submitted contrariwise that Exhibit D2 is not a judgment between the parties herein, different from Oyolu layout and only in respect of Izizue layout. Hence, no nexus between the land in dispute in Exhibit D2 and the land in dispute presently. Moreover, that the Suit in Exhibit D2 was instituted 5 or 6 years after the Plaintiff/Respondent has acquired the land in dispute. He further submitted that Exhibit D2 speaks for itself and no extrinsic evidence will be allowed on it. That despite the fact that Exhibit D2 is created to be enjoyed and disposed of in common between the Oze people and the Isima family of Okoligbo family in Umudei village, Onitsha, in equal shares; Oyolu Oze land does not belong to the Appellants. He argued that the Appellants neither pleaded nor proved the four conditions for lis pendens to avail them. He finally submitted that the concurrent findings of the lower and trial Courts demonstrated that they are wholly supported by evidence and not perverse to be disturbed by this Honourable Court. He prayed that the appeal be dismissed in its entirety.
Could the trial and lower Courts have entertained the present appeal while Suit No. O/197/80 was pending or in the subsistence of Exhibit D2? I completely have not seen any of such elements. Exhibit D2 is the judgment of lyizoba J. of the High Court of Anambra State, Onitsha Division, tendered by DW1. The judgment concerns Suit No: 0/197/80 between FELIX ONWUEMELIE & 3 ORS V. HENRY UDEAGWU & 2 ORS in respect of ISIZUE layout, a land entirely different from OYOLU layout, in which the land in dispute is situated. Suit No: 0/197/80 wherein Exhibit D2 emanated from was filed in 1980 but its grant was made in 1975 though confirmed in 1985.
On the inapplicability of the doctrine of lis pendens to the Appellants’ case, the lower Court at page 613 held that “the Appellants so heavily relied on Exhibit D2 as more of a talisman in defence to the Respondent’s claim and also in proof of their counter-claim, hinged on the principle of lis pendens… is unassailable.” Furthermore, the lower Court at page 616 of the record hammered it that “Suit No. 0/197/80; that the same was instituted on 15th August, 1980, whereas, the grant made to the Respondent’s predecessor-in-title, The Roman Catholic Mission, Archdiocese of Onitsha by the Nkwelle Ezunaka community was in 1975. That is some five to six years before the action in Exhibit D2 was filed. In the circumstances, I find that the conclusion by the learned trial Judge that the doctrine of lis pendens, is not available to the Appellants, is unassailable.”
In lis pendens, the law does not allow litigant parties or give to them during the currency of the litigation involving any property, rights in such property in dispute so as to prejudice any of the litigating parties. For it would be plainly impossible that any action or suit could be brought to a successful termination if alienation pendente lite were allowed to prevail. See Per KATSINA-ALU, JSC, in OLORI MOTOR COMPANY LTD. & ORS V. UNION BANK OF NIGERIA PLC (2006) LPELR-2589(SC) (PP. 22 PARAS. C). The sole purpose of lis pendens is to ensure that the jurisdiction of the Court, in disputes, is not rendered ineffectual through the destruction or transfer from person to person of the property subject to litigation. See Per OGUNTADE, JSC, in OLORI MOTOR COMPANY LTD. & ORS V. UNION BANK OF NIGERIA PLC (SUPRA) (PP. 44-45 PARAS. F). I make bold to state therefore that lis pendens is unavailable to the Appellants in this case since title to the land in dispute was acquired about five to six years before the present suit ensued.
Another crux of the Appellants is on the evidential value of Exhibit D2 to their case. The said Exhibit is the alleged subsisting judgment of lyizoba J., wherein it was held that Nkwelle Ezunaka community does not have authority over the Oyolu Oze land but only Oze community and Isima family of Okoligbo family, Umudei village, Onitsha, shall administer, enjoy, dispose and/or appropriate Oyolu Oze land. On the proper or correct interpretation of Exhibit D2 (Judgment in Suit No. O/197/80) vis-a-vis the provisions of Section 128(1) of the Evidence Act, the section provides:
(1) When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
The lower Court considered variously the evidential value of Exhibit D2 thus:
Let us now consider Exhibit D2, which was heavily relied upon by the appellants. It is with respect to the Suit No. 0/197/80 which is a judgment of the Anambra State High Court of Justice holden at Onitsha…Now, how did the Appellants demonstrate by evidence viva voce, that the land in dispute between them and the Respondent herein, is part of the land in dispute in the suit No. 0/197/80-Exhibit D2? That is, it was incumbent on the Appellants to have tied Exhibit D2 to the land in dispute. This, the Appellants could have demonstrated by giving the size and boundaries in Exhibit D2 as being larger than the land in dispute as shown in the survey plans – Exhibits P1, P2 and D1. The aforesaid Exhibit D2 was admitted into evidence through the 1st Defendant/Appellant who testified as DW1 at pages 519-521 …I have painstakingly perused the pieces of evidence proffered by DW1, DW2 and DW3 for the Appellants, but I am unable to see how Exhibit D2 was linked to Exhibits P1, P2 and D1; and that the said Exhibits P1, P2 and D1 which are with respect to the land in dispute are subsumed in Exhibit D2, which the Appellants gave the impression that the former, that is, the land in dispute, is part of the land in dispute in Exhibit D2.
Documents relied upon must be relevant and correlate to the facts in issue, otherwise, it cannot have any evidential value. Exhibit D2 has not been connected to the land in dispute to give it any strength or value. In fact, by the facts and records in the present appeal, it is obvious that Exhibit D2, though a subsisting judgment of the trial Court, was not in respect of the same parties and subject matter, to bind both the Appellants and the Respondent herein. In fact, Exhibit D2 is not a judgment concerning or in respect of OYOLU layout but ISIZUE layout and therefore irrelevant and without value or any help to the case of the Appellants.
To tender Exhibit D2 by the Appellants is more destructive than helpful to their case in proving the title or ownership of the land in dispute since it could not tie or connect the land in dispute. To tender an Exhibit is not for the fun of it but must be relevant in assisting the Court to determine the case before it. Besides, Exhibit D2 is not the genre or class of evidence referred to by Section 128(1) of the Evidence Act that the Appellants are still expecting this Honourable Court to act on.
The findings of the lower Court being in consonance with that of the trial Court are without defects or perverseness to be tampered with it or set aside. Based on the foregoing therefore, the two issues raised by the Appellants are resolved against them. This appeal fails and is hereby dismissed. Parties are to bear their costs.