Rev. John Ugah V. Sylvanus Ugwu Agbo (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment)

The Respondent by a Writ of Summons dated 11th March, 1998 commenced an action against the Appellant in Suit No. E/90/98 at the High Court of Justice, Enugu Judicial Division. The claims of the Plaintiff/Respondent against the Defendant/Appellant are as follows:

1. A declaration that the piece or parcel of land situate at New Era Layout, Enugu otherwise known as plot 272 New Era Layout, Enugu belongs to the Plaintiff.
2. N132, 000.00 (One Hundred and Thirty Two Thousand Naira) only damages for the fence wall maliciously damaged by the Defendant when he trespassed into the Plaintiff’s land.
3. Perpetual injunction restraining the defendant by himself, his agents, servants and privies from further acts of trespass on the said land.

The Plaintiff/Respondent supported his claim with a 20 paragraph Statement of Claim dated 20th November, 1998 and a Survey Plan No. ECUD/EN/02/98. See pages 3-6 of the record of appeal. The Defendant/Appellant filed a 27 paragraph Statement of Defence dated 14/12/1998 and a Survey plan No. SS/EN/0100/98. See pages 7 – 10 of the record of appeal. The trial commenced at the lower court on 28th July, 1999 before Hon. Justice B. Agbata (herein referred to as the trial Judge). The trial lingered up to the 8th day of May, 2003 when the Plaintiff/Respondent replied to the final address of counsel for the Defendant/Appellant. See pages 11 – 66 of the record of appeal.

On the 3rd day of December, 2003, the lower court delivered judgment in the case, wherein a decision was reached in favour of the Plaintiff/Respondent against the Defendant/Appellant. See pages 67 – 73 of the record of appeal. Being dissatisfied with the judgment of the lower court per Agbata J, the Defendant/Appellant filed a Notice of Appeal dated 8th December, 2003, containing nine (9) Grounds of Appeal. See pages 74 – 77 of the record of appeal.

In line with the rules of this Honourable Court, the parties filed, exchanged and adopted their briefs in support of their respective contentions on the appeal. The appeal was taken on 19th March, 2013.

The Appellant’s Brief of Argument dated 31st March, 2011 and filed on 6th April, 2011 was settled by Chief Emeka Onyemelukwe (KGS) (JP) for the Defendant/Appellant. The Respondent’s Brief of Argument dated 20th June, 2011 and filed on the same date was settled by O. AKPAMGBO ESQ for the Respondent.

In his Brief of Argument, the learned counsel for the Appellant formulated five (5) issues for determination of this appeal. The Appellant’s issues are herein reproduced for ease of reference:

“1. Whether or not the learned trial judge was right or wrong to have granted the plaintiff title to Plot 272, New Era Layout, Enugu, in view of Sec. 39 (1) (a) and Sec. 40 of the Land Use Act 1987?

2. Whether or not the learned trial judge was right to grant title to the Plaintiff in view of the evidence before him?
3. Whether or not the learned trial judge was right or wrong to have granted title to the Plaintiff/Respondent in respect to Plot 272, New Era Layout, Enugu, purchased from a vendor with defective title?
4. Whether or not the legal maxim “where the equities are equal, the 1st in time prevails”, was considered by the learned trial judge?
5. Whether or not the trial Judge was right in awarding of N132, 000.00 (One Hundred and Thirty Two Thousand Naira) without strict proof as required by law?

The Learned Counsel for the Respondent also formulated five (5) issues for determination of this appeal. The issues herein reproduced read thus:

1. Whether on the preponderance of evidence, the learned trial judge was right in granting title to the land in dispute, i.e. Plot 272 New Era Layout, Enugu to the Plaintiff?
2. Whether the people who conveyed the land in dispute to defendant had the authority of the community to so do?
3. Whether the equities in the instant case are equal?
4. Whether the learned trial judge was right in awarding special damages of N132, 000 (One Hundred and Thirty-Two Thousand Naira) to the plaintiff for the fence walls that were damaged and which damage was admitted by the defendant?
5. Whether in the instant case, there is justification for the grant of perpetual injunction against the defendant on the land in dispute?

APPELLANT’S ARGUMENT

On the Appellant’s issue No. 1, the learned counsel representing him stated that the Land Use Act swept away unlimited interest in the land and substituted them with limited right. He further stated that vested right have been abrogated by the Land Use Act, vesting TITLE, management and control of the land to the Governor and curtailed the interest of the holder by prescribing consent to alienation in all cases. He cited Sections 34 and 36 of Land Use Act. He argued that if the Governor of the State is the trustee of land, then the learned trial judge has erred in law in granting title to Plot 272, New Era Layout, Enugu to the plaintiff. The learned counsel cited the case of Arhurhii V. Delta Steel Co. Ltd (1997) 3 NWLR (Pt. 491) 82 at 84 – 85.

On the Appellant’s Issue No. 2, the learned counsel for the Appellant contended that introduction of deed of conveyance or document of title does not automatically entitle a party to a claim in declaration. He added that before the production of document is admitted as sufficient proof of ownership, the court must satisfy itself that:

(a) The document is genuine and valid

(b) It has been duly executed, stamped and registered.