Prince Ngene Vs Chike Igbo & Anor. (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

By a writ of Summons issued in November, 1977, Chinyelugo Sylvester Omenagu Igbo sued Prince Ngene, now Appellant before us, claiming declaration of title to a piece or parcel of land known as and called “Onuagu” in Ogui Urban Area of Enugu, N5,000.00 general damages for trespass and an Injunction. Pleadings having been filed and exchanged and by leave of Court amended, the case proceeded to trial before P.K.Nwokedi J.(as he then was) at the conclusion of which the learned trial Judge found for the plaintiff Chinyelugo S.O. Igbo in trespass and Injunction but dismissed his claim for title. He awarded to the plaintiff N2,680.00 special and general damages for trespass committed by the defendant on the said land and an injunction restraining the defendant. his servants etc. from committing further acts of trespass on the said land which is delineated on the Plan No. 1513/77 tiled along with the Statement of Claim.

The defendant was dissatisfied with the said judgment and appealed to the Court of Appeal. The plaintiff was also dissatisfied with the dismissal of his claim for title; he too cross-appealed against that part of the decision of the trial High Court. Both appeals came before the Court of Appeal Enugu Division and after hearing learned counsel for the parties, that Court dismissed the defendant’s appeal and allowed the plaintiffs cross-appeal. The Court of Appeal awarded title to the land in dispute to the plaintiff in addition to damages for trespass and injunction earlier awarded to him by the trial High Court. With leave of this Court, the defendant has now further appealed to us upon three original and three additional grounds of appeal. Learned counsel for the parties, pursuant to the rules of this Court, filed and exchanged their respective briefs of argument. While the appeal was pending in this Court the plaintiff Chinyelugo S.O Igbo died and on the applications of both the defendant/appellant on the one hand and Chike Igbo and Dr. Onyechi Igbo on the other hand, both Chike Igbo and Dr. Onyechi Igbo were substituted for the deceased plaintiff/respondent.

The facts are simple enough. For the plaintiff, the land in dispute known as and called “Onuagu” is situate in Ogui renewal layout Enugu. The land was said to belong originally to one Ugwu Mba who together with his two sons Nnamani Ugwu Mba and Ngwu Ugwu Mba granted the same in 1951 to one D.O.C. Nwankwo for farming purposes. In 1961, the said land was conveyed to Nwankwo by Ugwu Mba-Nnamani Ugwu Mba had died by then. The Deed of Conveyance was registered. Nwankwo remained in possession until August 1977 when he, by deed of assignment, transferred his interest in the land to the plaintiff Chiyelugo S. O. Igbo who immediately went into possession. It must be stated at this stage that Nwankwo had been in possession of the land prior to the transfer of his interest to the plaintiff and indeed in 1976 Nwankwo sought and obtained the approval of the Enugu Planning Authority to develop the land. Following the purchase of the land by the plaintiff, he caused building materials, blocks and sand, to be deposited on the land with a view to building thereon. He was however, disturbed on the land by the defendant in October 1977 who without the permission of the plaintiff came on the land and commenced building thereon. The action of the defendant resulted in the plaintiff taking this action.

The defendant denied the ownership of Ugwu Mba of the land in dispute and claimed that the land belonged to Umunamalum family to which Nnamani Ugwu Mba and Ugwu Mba belonged. It is part of defendant’s case that Umunamalum, family in a High Court suit challenged the grant made to the plaintiff; he claimed title to the land in dispute. The defendant claimed that the land was granted to him by the family and admitted he was building on the land.

As stated earlier in this judgment the learned trial judge dismissed plaintiff’s claim to title on the ground that the document made in favour of Nwakwo in 1951 by Ugwu Mba and his sons which document was inadmissible to the Deed of Conveyance made in 1961 to Nwankwo was inadmissible and consequently the 1961 Deed of Conveyance conveyed no title. The learned trial judge however found that the Umunamalum family was an invention of the defendant and that such family did not exist nor own the land in dispute. On the issue of trespass and Injunction, the learned trial judge found that the Plaintiff in this case was in possession of the land in dispute before the defendant arrived and chased plaintiff’s workers away from the land. He also found that the plaintiff deposited blocks and sand on the land and that the defendant had built on the land. He found that the defendant had no title to the land.

The Court below affirmed the findings of fact made by the learned trial judge on the issue of possession to the land but held that the learned judge was wrong on the issues of title to the land. I shall say more of this later in this judgment.

The parties placed before this Court four questions though differently worded. The questions as placed by the defendant/appellant read:-

“I. Whether the irregular procedure adopted by the trial judge and as condemned by the Court of Appeal did not amount to a denial of the parties right to fair hearing under section 33 of the Constitution and whether such a violation does not vitiate the whole proceedings.

2. Whether the trial Court and the Court of Appeal ought to have ordered that Umunnamalum family be given a hearing before making such a serious and far-reaching declaration against them.
3. Whether the Court of Appeal was right in holding that mere production of an instrument of grant without more is absolute proof that the land in dispute was conveyed to the Respondent and whether the Respondent pleaded and proved native law and custom governing grant.
4. Having upheld the decision of the trial judge that Umunnamalum family is non-existent is the Court of Appeal entitled to hold too that the Respondent had established a prima facie case as regards the family from whom he bought the land”.

The plaintiff is his Brief objected to Issue (1) on the ground that it is not predicated on any ground of appeal. I think learned counsel for the plaintiff is right. I have examined the six grounds of appeal and I can find none to support Question (1) raised in the Appellant’s Brief. In respect of Questions (2) and (4) to which objection is taken in Respondent’s Brief and in oral argument of learned counsel for the Defendant/Respondent, I think there are grounds of appeal to support those questions. I strike out Question (1) as not being competent.

As to the remaining questions put before this Court, I am of the view that they fall under two broad issues – (1) whether the Court below was right in awarding title to the land in dispute to the plaintiff and (2) whether the Court below was right in affirming the decision of the trial High Court on the issue of trespass and injunction. It is on these two broad issues that I intend to determine this appeal. The issue of Umunnamalum family which is also raised in his appeal does not seriously affect the conclusion I will reach in this appeal. Whatever was said by the two Courts below on the existence or otherwise of this family would not be binding on the family (if it exists at all as the family was not a party to these proceeding. The defendant did not plead the root of title of his family to the land in dispute. As such the finding that the defendant did not prove title to the land in dispute would still not be affected. Consequently I do not consider it necessary to say more on the existence or otherwise of Umunnamalum family.

(1) Title: On the issue of title the trial High Court observed as follows:

“The Plaintiff predicates his title to the land in dispute on his deed of assignment of lease dated 10th August, 1977 and registered as no. 41 at page 41 in volume 958 of the Lands Registry. Enugu 4. This assignment was granted to him by the PW2. The necessary point to resolve is whether the PW2 had any interest legal or equitable to assign. The title of PW2 is stated to be founded on Exh.2. According to the PW2, he acquired his title by two stages. In 1951, he obtained a farming grant of the said land from the original owner. ‘one Ugwu Mba who together with his two sons Nnamani Ugwu Mba and Ngwu Ugwu Mba granted the same under native law and custom to one D.O.C. Nwankwo for farming in June, 1951’ see paragraph 4 of the statement of claim. The said customary grant was stated to have been later reduced into writing. The document in question is attached to Exh.2 .. There are many things unacceptable as regards the said (sic) dated 9th June, 1951, attached to Exh.2. First, it is not an agreement between Ugwu Mba, the alleged original owner of the land and the PW2. Rather it is an agreement between the son of the said original owner, Nnamani Ugwu Mba and the PW2. Though the document seems thumb printed by the said Ugwu Mba and his second son Ngwu Ugwu Mba, the capacity in which they were executing the agreement was not given. Since they are not stated to be parties to the agreement, one can only surmise that they were witnesses. There is no mention in the said document of any customary grant of which the document was the evidence thereof. The document was not witnessing anything. It was an outright sale of the land included to be conveyed by the said document subject to the payment of a rent charge. The piece of land in question was stated to have been ‘sold’ and subject to the yearly rent reserved the land was to belong to the P.W.2 indefinitely. The instrument was therefore, a registrable instrument under the Land Instruments Registration Law, then applicable in 1951. If the instrument had showed a pre-existing title to the land in dispute as in the present allegation, found in Customary grant, it would have needed no registration. See Paul v. Laba (1937) All E.R. 737. Furthermore, the document was far from a farming grant. In consequence of the above objections,the document was inadmissible in evidence as proof of title. The position is not altered by the fact that it was attached to Exh.2 for it was ab initio inadmissible in evidence.

As regards Exh. 2 itself, certain valid objections can still be raised. This document was pleaded in paragraph 5 of the amended statement of claim. Both paragraphs 5 and 6 of the amended statement of defence traversed the said paragraph 5 of the amended statement of claim and averred that the document was a forgery.