IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU MBAISE
FRIDAY 14TH OCTOBER, 2022
BEFORE HIS LORDSHIP: – HON. JUSTICE I.M. NJAKA
SUIT NO: HAM/68/2019
BETWEEN:
- CHIDI OKEKE
- MR. CHIZOBA OKEKE
- MR. OKECHUKWU OKEKE …………………………….. PLAINTIFFS
- MR. ONYEKACHI OKEKE
AND:
MRS. JOSEPHINE EHIUDO DEFENDANT
JUDGMENT
The Plaintiffs commenced the present suit, via, Writ of Summons and other processes filed on 14/6/2019 wherein the Plaintiffs claimed against the Defendant as follows:
- A declaration of the Hon Court that the Plaintiffs are the rightful persons entitled to the Customary Right of Occupancy of the piece of land known as and called “Oru Isiafor Ogbe” situate at Afor Ogbe Market Ogbe Ahiara Ahiazu Mbaise Local Government Area.
- A perpetual injunction restraining the Defendant, her agents, privies, heirs or anybody claiming from her from trespassing into the said “Oru Isi Afor Ogbe”in Ogbe Ahiara Ahaizu Mbaise LGA of Imo State.
- An order of court for the payment of sum of One Million Naira (N1,000,000.00) by the defendant to the plaintiffs for unlawful trespass into “Oru Isi Afor Ogbe lying and situate at Afor Ogbe in Ogbe Ahiara, Ahaizu Mbaise LGA Imo State of Nigeria
- An order for the payment of the sum of N1, 000,000.00 by the Defendant to the Plaintiffs for the unlawful trespass into the Oru Isi Afor Ogbe in Ogbe Ahiara Ahiazu Mbaise LGA of Imo State
- Any order(s) which the Hon Court may deem fit to make in the circumstance.
The Plaintiff called one witness while the Defendant also called one witness.
Plaintiffs’ evidence
- CHIDI OKEKE adopted his deposition. He testified that the plaintiffs are the children of late Mr. Cypril Okeke and late Mrs. Martha Okeke of Umuihiokwu Ogbe now in Ogbe Nne Isii Autonomous Community in Ahiazu Mbaise Local Government Area of Imo State of Nigeria. The defendant is the wife of late Mr. Donatus Ehiudo of Ihitte Otulu Ahiara Ahiazu Mbaise. She is the tenant of the plaintiffs occupying two shops out of the four shops of the plaintiffs at the aforesaid land. The defendant is a business woman and deals on building materials.
On the 22ND day of March 1971, our father, late Mr. Cypril Okeke, a very successful patient medicine dealer purchased part of the land known as and called Oru Isi Afor Ogbe from one late Mr. Mathias Onyeulor of Umuoma Ogbe Ahiara Ahiazu Mbaise. The said Mr. Mathias Onyeulor led my father into the land in the presence of Paul Ogbekwem, Bede Ogbekwem, Mrs. Maria Onyeulor (the mother of the seller) .J.E. Ibe and others after receiving the financial consideration for same.
My father took over immediate possession of the said piece of land, surveyed the land, cultivated and harvested economic crops, from the land which as at then was not developed. The survey plan is hereby pleaded and annexed as Exhibit B. My father continued to exercise various acts of possession over the piece of land without any challenge by any person including the defendant. My father drew a building plan for the construction of shops on the aforesaid land and started building same. My father was building the shops on the land, he purchased building materials from late Mr. Donatus Ehiudo, the husband of the defendant. He was a building material trader as at then. While my father was· building the shops and before the completion, he had financial problems and sought for the assistance of the husband of the defendant to supply building materials to him for the completion of the shops on credit. The husband of the defendant agreed with my father to supply building materials for the completion of the building of the shops on the condition that he will continue to receive rents from tenants until he recovers the value of the building materials. The husband of the defendant supplied the building materials used for the completion of the shops and thereafter continued to collect rent from the shop as agreed by the parties pending the time he must have received rent equal to the amount of building materials he supplied on credit for the completion of the shops. The husband of the defendant continued collecting this rent till he died and the defendant continued from where her husband stopped in collecting rent for the shops and also used part of the shops for her business without paying for same.
On the 1st day of December, 1984, one Mr. Bede Ogbekwem, the Uncle of Mr. Mathias Onyeulor, sold his own portion Oru Isi Afor Ogbe to my father as payment for the medical bills of his children treated by my father and which now make up the entire piece of land known as and called Oru Isi Afor Ogbe situate at Afor Ogbe Market along Afor Oru road, Ogbe Ahiara Ahiazu Mbaise L.G.A.
Soon after the purchase of the 2nd part of the said land my father died and we the plaintiffs continued to farm on that portion of the land living the earlier portion which shops were built for the defendants to continue to collect rent till the amount of building materials that her husband supplied on credit was fully recovered. While my father was on the sick bed before he died, he told us of the facts of his transaction with Late Donatus Ehiudo
Sometime ago the defendant tried to encroach into the 2nd piece of land by digging a hole to construct a fence wall of the entire land and this the plaintiffs resisted, invited the seller Mr. Bede Ogbekwem who intervened and told the defendant to desist from same and which she complied with. My mother out of poverty and widowhood accepted to receive part of the rent from the defendant after the death of her husband to enable her sustain her children and by so doing extended the period by which the collection of the rent will expire. The defendant has continued to collect the rent without giving any part of same to the plaintiffs since after the death of my mother in 2015. The defendant has continued to collect the same rent even after the period agreed with the plaintiff expired. The defendant also packed into two of the shops and has been using same without paying for same to the plaintiffs. The defendant has now entered into the undeveloped part of Oru Isi Afor Ogbe property of the plaintiffs without the consent and authority of the plaintiffs. He tendered the following:
The 1st Plaintiff testified on behalf of the Plaintiffs. He tendered the following:
- Receipt Exhibit A.
- a survey plan Exhibit B
- a building plan exhibit C
- Power of Attorney Exhibit D
Cross examination of PW1
I know about Igwebuike Age Grade Otule Ahaira Ahiazu Mbaise. I know about Igwebuike Age Grade Ogbe Ahiara. I am aware that these two ages grade mentioned have deliberated on this matter between our families. My late brother was a member of Igwebuike age grade Ogbe Ahiara. The late husband of the defendant is also a member of Iwgebuike Age grade Otulu
I saw their names on the document presented by the Defendant showing that the land in dispute has already been registered in the name of my late father and the husband of the defendant but the signature there is not that of my father. We did not accept the outcome of that arbitration. Now I said that the signature is not of my father. I did not do any anything. I tendered exhibit D as the document my father used to purchase land in 1984. It was surveyed. It is the one attached to exhibit D. That is Exhibit B. I also gave evidence that my father purchased land in 1971. That one was also surveyed. When asked: Where is the survey plan? He replied: It was not surveyed. On the put question your father never purchase land as you demonstrated in exhibit D, he replied: He bought land. On the put question: you that your father never purchased any land forming the subject matter of this suit as stated in Exhibit A, he relied: My father bought land.
That 4 room building which my late father agreed with the late husband of the defendant to collect the value of the money put in the house and hand over to them, was completed in 1979. My mother did not tell me the total value of what the husband of the defendant put in the house. I mentioned purchasing material from the defendant husband, my mother did give me any receipt to evidence that purchase. I said that the defendant is my tenant.
The nature of the tenancy is she was given two rooms and told to use to deduct her build material purchased. My mother did not tell me how much is the amount the defendant collected as rent. When asked: In the agreement between you father and late husband of the defendant do you know if they agreed on any sum of money, he replied: there was no such agreement. If there is any my mother would have told me.
The land my father my father bought in 1971 was surveyed. I have given the court the survey plan. At the completion of the 4 room shops the defendant husband was meant to collect money from two rooms for the recovery of money invested on the 4 room shops. My mother did not tell me exactly what is the termination of the tenancy between I, my father and the defendant’s husband. Before my mother died she has told her to vacate the place. My mother was the one who knows if it is to exist for any number of days and the one who asked him to vacate that her tenancy ahs expired. My mother told me he has collected all the money that why she has asked her to vacate. My mother did not tell me the amount of money he had collected. All I know is that she told me that she told her to vacate.
In paragraph 11 I told the court that the defendant husband supplied building material, my mother did not tell me how much material was supplied on credit. My mother did not tell me how much rent was equal to the material supplied as I said in paragraph 13. In paragraph 20 of my deposition I alleged that the defendant failed to give to the plaintiff the rent due to him after the death of my mother, my mother did not tell me how much is due to me as a rent. Exhibit b is a survey plan. Exhibit d is in the document. My late father purchased land as in Exhibit B forming part of the land in dispute. There was incidence of Dede Ogbakwuru intervening for the defendant to stop work on the land in issue. Bede Ogbakwur is alive but very old and his children took him to where he is being treated.
I alleged on paragraph 19 that my late mother extended the period within which the Defendant will collect rent for five years from 1989. I have no collected rent from the defendant before. Defendant is in charge of 2 rooms out of the 4 rooms. It was given to her by my father to recover the money for the building material which he bought on credit. It is not true that the defendant is the owner of the 2 rooms in dispute. I challenged the certificate of occupancy shown to me during the arbitration. I told them that the signature is not my father’s own. And that is why I am in court.
DEFENCE CASE
The Defendant, MRS JOSEPHINE EHIUDO, testified I am not a tenant of the plaintiffs. I am not occupying two rooms shop belonging to the plaintiffs as claimed in this suit or any other place. The 2 rooms shop belongs to me. The shop wherein I am carrying on business at Afor Ogbe Ahiara Ahiazu Mbaise is my property which I inherited from my late husband Mr. Donatus Amanze Ehiudo. I have being in possessions of my shop since the death of my husband on 22/2/1984. The plaintiff’s father while alive never disputed my husband’s title over the shops or at any material time, never claimed ownership of the 2 rooms’ shop wherein I am carrying on my business. The Plaintiffs are not the owners of my 2 rooms shop, they are only greedy and unscrupulous in laying their present false claim over my 2 rooms shop. I admit facts contained in paragraph 3 of the statement of claim and add that I became successful in my business by continuing with my late husband’s business after his death on 22/2/1984. i.e. about 4 years after our marriage.
My husband was the person that brought the major part of the purchase price of the land in dispute. This is because the plaintiffs’ father as at the time of the purchase of the land hadn’t enough money to pay for the land. The Plaintiffs father contacted my husband for the completion of the purchase price of the land which my husband brought because he was a close friend of the Plaintiffs father that trusted each other. It was my husband that built the 4 rooms shop on the land because the Plaintiffs father had no money for the construction of the house. My late husband also built the block wall fence and I was very much aware of the transaction of my said husband. My husband and the Plaintiffs father agreed to become joint owners of the land because of the major money for the purchase of the land was raised by my husband. This was why the land was surveyed in the names of the Plaintiffs father, Mr Cyril Okeke and my husband Mr Donatus A. Ehiudo as Plan No. ECIS/3420/78 and I have a copy of same here in courts. The said Mr. Cyril Ahanonu Okeke (Plaintiffs father) and my husband Mr. Donatus Amanze Ehiudo both applied for customary certificate of occupancy for the land in dispute which they attached with their passport photographs. Copy of the said application is with me here in court. The said certificate of occupancy was granted by the Imo State Government of Nigeria in the name of both Cyril Ahanonu Okeke and Donatus Amanze Ehiudo and same was registered as No 10 at page 10 in volume 126 of the lands Registry Owerri-Imo State. I applied for Certified True Copy of same and I have the Certified True Copy here with me in court. I applied to the Ministry of lands, Survey and Urban Planning for the Certified True Copy of the certificate of occupancy registered as No 10 at page 10 in volume 126 of the lands Registry Owerri Imo State. I have copy of the said application here in court. Since the purchase of the land and the major payment made by my husband, the Plaintiffs father while alive never farmed on the land rather my husband who built the 4 rooms shop therein. The Plaintiffs and or their late mother never farmed on the portion of land now in dispute excepting when the Plaintiffs mother requested me to allow her farm on the land only in order to assist her in sustaining the plaintiffs because she had no money to take care of her children.
My husband agreed with the Plaintiffs father that my husband will collect rent to cover the money he invested in building the house after which each of them will take over 2 rooms each. My husband was collecting the rent till he died in February 1984 and I continued to collect the rent from the 4 room shops. In the year 1985 after the death of the Plaintiffs father, I felt that it, will be reasonable to start giving assistance to the mother of the Plaintiffs by allowing her with some money from the rent. This is meant to assist the Plaintiffs mother who was a petty trader selling retail garri in the market and hadn’t money to train her children even to feed. This my magnanimous act was based on the close relationship between the two families and not that my late husband and I had collected enough rent to the tune of the amount they invested in building the 4 rooms shop. The Plaintiffs father while alive never challenged my husband or me on the land. The year 2000 I started occupying 2 rooms out of the 4 rooms shop when I was asked to pack out of my former place of business by the landlord. I left 2 rooms shop for the Plaintiffs mother who was then alive for her ownership and collection of rent. After sometime I took occupation of my own two rooms shop and my share of the remaining piece/portion of land at the back of the shops, Mrs. Martha Okeke refused and falsely alleged that the remaining piece of land at the back belongs to her husband and her alone. It when I packed into the 2 rooms shop, I started to rebuild the dwarf block wall fence separating into 2 the ownership of the 4 rooms shop. The Plaintiffs and their mother (who was then alive) interrupted with my rebuilding of the block wall fence. This resulted to numerous arbitrations as a) Report by the Plaintiffs mother now late to Chief J. Ibekwe which failed as it was not concluded. (b) Eze-elect B. Mmadinobi which was not concluded.
Dispute between the Plaintiffs’ mother (now late) and l over the land in dispute was also arbitrated by the IGWEBUIKE AGE GRADE OF OGBE AHAIRA of the Plaintiffs village and the IGWEBUIKE AGE GRADE OTULU AHIARA of my village who set six man committee to look into the matter.
The Age Grades Arbitration Committee properly looked into the disputed land and the building therein. The 2nd Plaintiff himself and the mother of the plaintiffs Mrs. Martha Okeke represented the plaintiffs in this over the arbitration suit while I and my first son Mr. Chidi Ehiudo were present for me in this suit. This arbitration took place in 2004. The witness to the parties are Mr. Bede Ogbekwem and Chief Joseph Ibekwe but some other people gave evidence before the arbitration committee. All the parties and the witnesses were heard as they all made statements before the arbitration committee and were cross examined. Each of us tendered documents with which we are laying claims over ownership of the land. The person that owns the land before it was sold i.e Pa Onyeulo Akujuobi Matthias also gave evidence before the committee that he was aware that the land belongs to the father of the Plaintiffs and my late husband. Okaruo Raymond Njoku also gave evidence before the committee. The following persons that gave evidence before the committee and/or arbitrated over the disputed land that are alive are, Bede Ogbekwen, Chief Desmond Ugwuibe, Mr Aririguza I. Patrick, Chief Charles I Agbara, Ozar Marcus Keke, Mr Michael Ezenwa and Mr Zebedee Nwaru. The Certificate of Occupancy I tendered before the committee with which the Plaintiffs father and my husband jointly owns the land in dispute was referred – an Estate valuer for search and verification at Owerri. The Estate Surveyor that – ducted the search is Joe Onyike of Joe Onyike & co. chartered Estate Surveyors & Valuers, property managers and real Estate consultants.
After hearing from all the parties, considering all documents tendered as visit to the land, search at the Lands Registry, the Arbitration committee concluded that the land and the shop therein is jointly owned by the parties i.e the Plaintiffs father and my late husband. Copy of the decision of the committee well as the attached documents which were handed to we the parties after the decision of the committee and I have it here in court. The sub-treasury receipt dated 14/12/83 with which Mr Cyril Okeke and Donatus Ehiudo the father of the Plaintiffs and my husband respectively applied for Certificate of occupancy over the land in dispute is with me here in court. After the decision of the arbitration committee as referred above, each party continued with the occupation of the two rooms shop each and the adjourning piece of land behind each rooms shop. I completed very well the block wall fence demarcating my shop from that of the Plaintiffs. This continued without disturbance till the commencement of the present frivolous suit by the plaintiffs.
The plaintiffs as greedy people who wants to reap what they did not sow, commenced this suit in order to lay false claim over my land, but the Honourable court would not support this wicked plans of the Plaintiffs.
In the year 2016, I built a three rooms shop on the land in dispute covering almost the piece of land behind my own shop in order to accommodate my goods for sale. The shop was completed in the month of January 2019 and I packed into the shop since February 2019. The plaintiffs were standing by while I was building the shops till it was completed. I have being carrying on my business in the shop since February 2019. The Plaintiffs are not entitled to their claims before this court as shame should be dismissed with substantial cost against the Plaintiffs. That the Plaintiffs are half clever in stating the witnesses to the transaction of purchase of the land in dispute without stating the witnesses to the transaction/agreement between their later father and my husband.
The survey plan pleaded in paragraph 7 of the Plaintiffs statement of claim does not represent the proper dimension of the land in dispute. There have never being a time the Plaintiffs father exercised various acts of possession over the land since my husband took over the land and built shops on it. The Plaintiffs father never built the shops on the land in dispute or started same rather my late husband started the construction of the shop and completed same. My late husband never supplied building materials to the Plaintiffs father for the construction of the shops rather he built it by himself.
My husband and the Plaintiff’s father are joint owners of the land but my husband built the shops alone on the agreement with the plaintiff’s father that my husband will first recover the money he invested in building of the shop before each of them will take over his own 2 rooms shop which both of them complied with.
I am the rightful owner of the 2 rooms’ shop I am occupying. The alleged transaction between the Plaintiffs father and one Mr Bede Ogbekwem never existed as regards the land and building now in dispute. The Plaintiffs are put to the strictest proof of this fact. The Plaintiffs never farmed on any portion of the land in dispute as alleged and the alleged purchase has no connection with the land/shops in dispute. The Plaintiffs out of wickedness and greedy refused to disclose the truth about the facts of the land in dispute and their late father never told them that he personally owns the land. The Plaintiffs father while alive told me that the land in dispute is jointly owned by him (the Plaintiffs father) and my late husband which fact the Plaintiffs father knew that I am aware of.
There is no land transaction over the building wherein my shop is situate that as connection with Mr Bede Ogbekwem rather the land of Pa Matthias Akujobi nyeulo. The Plaintiffs are trying to use any means whether wrong/right, proper/improper to lay false claim over the land in dispute.
The Plaintiffs mother was receiving the rent from me because she was very much aware that the rent from the house was meant for me to complete the cost of my husband’s building of the shop before the Plaintiffs would take over their own part of the shop. There exists no issue of the Plaintiffs mother extending the period I was collecting rents. Rather I was magnanimous in allowing the Plaintiffs mother part of the rent because the Plaintiffs lost their father then and had no means of feeding as stated by the Plaintiffs in paragraph 19 of their statement of claim.
The Plaintiffs mother while alive was collecting rent over her own 2 rooms and had no business with my 2 rooms shop let alone expecting rent from me
The Plaintiffs mother never contested the ownership of my 2 rooms shop till her death starting from the decision of the arbitration committee in 2004 which is before this court.
The Plaintiffs are put to the strictest proof of facts contained in paragraph 21 of their statement of claim as regard the period the Plaintiffs alleged that I am supposed to stop collecting rent over the 2 rooms shops. The Plaintiffs mother was collecting rents over the 2 rooms shop of the Plaintiffs while I was occupying my own part of the 2 rooms shop.
The Plaintiffs and the their mother who was alive when I packed into the 2 rooms shop, never objected and or rejected me taking over ownership of her own 2 rooms shop since the year 2000 let alone demanding for rent.
I built her bigger shop covering part of the old shop and part of the small piece of land behind the old shop. I do not require the consent and/or authority of the Plaintiffs to build on my land. The building on the land is completed and I parked into the shop since February 2019. The Defendant have been carrying on business in the shop since the said February 2019. The building started in 2016 and was completed to the stage I want it for now since January 2019. The photographs to be relied upon by the Plaintiffs during hearing of this suit does not portray the real state of the shop as the photographs were taken when I have not packed into the shop. The Plaintiffs are not entitled to their claims before this court.
The Defendant testified as the sole witness for the defence. She tendered
The following:
- An application for Certificate of Occupancy exhibit E
- Certificate of Occupancy registered as No 10 at page in volume 126 exhibit F.
- a receipt from the sub registry for the Certificate of Occupancy exhibit G
Under cross examination she stated: It is true that in my statement on oath I alleged that my husband was the major financier of the purchase of the land in dispute. It was at the time of payment for the purchase of the land that my husband brought the money. The person we bought the land from said it was my husband that gave CY the money for the payment. He did not tell me alone it was written on paper too. He told me in the presence of the age grade that share the land. It was the year that it was shared and it was written in the book. By the book, I mean the arbitration.
Arbitration was done in 2004. Before the building will be shared into two he will collect the rent for 20 years. It is also written. It will expire in 2001. It was what was decided.
Written agreement between my husband and plaintiffs’ father over the ownership of this land in dispute was certificate of occupancy. There is no agreement more than certificate of occupancy. I became the owner of the two shops when I started collecting rent.
Before I parked in I was already the owner but it was when I started collecting rent I became the owner. I know one Mr. Bid Ogbekwem. He comes from Umuoma Ogbe. I do not know his health condition now. I do not live with him. On the question: I put it to you that it was this Bid Ogbekwem who sold the second part of this land in dispute to the plaintiffs ‘father, she replied it is one land. It is not two
When I started constructing the new building I have in that place they invited police for me, and the DPO saw the document and asked them to go because they do not have case. When I started erecting fence wall on that building the plaintiff and the mother did not resist me. All document made between them and my husband have been produced at the trial. The rent receipts etc. there is no document more important than the C of O. I said the land is one. When told that the arbitration she tendered said it is two, she maintained it is one. Between me and the arbitrators I am the one that is right.
At the close of evidence, the counsel filed final written address.
The defence counsel raised issues for determination as:
- “Considering Exhibits “A” and “F” as well as evidence of both parties, whether it is more probable to hold that the entire land/4rooms shop belongs equally to the Plaintiffs father and the Defendant’s husband or not”.
- “Considering answer to issue (a) whether it would be correct to hold that the Plaintiffs proved their case to the standard required by the law to warrant the grant of their reliefs before this court”.
The counsel argued the two issues together. It is submitted that the Plaintiffs in proof of their title over the land in dispute relied on production of title document. The Defendant also in defence to this suit relied on production of title document. The Plaintiffs relied on Exhibits “A” and “D” while the Defendant relied on Exhibit “E” and “F”. The counsel referred to PRINCE EMMANUEL EYO ISHIE V. OFFIONG MOWANSO & ANOR (2001) FWLR (PT 43) P. 338.
According to the counsel a look at Exhibit “D” relied upon by the Plaintiffs clearly shows that Exhibit ‘’D” has no connection with the claim of the Plaintiffs in the Exhibit “D” it has no description, measurement and or area, nor survey plan indicating the measurement and description of the land in order to determine whether is part of the land in dispute. This cannot confer any title on the Plaintiffs.
It is contended that the PW1 under cross examination on 21/12/2020 and 15/3/2021 admitted the existence of customary Certificate of Occupancy in the name of his late father and the late Defendant’s husband over the land in dispute. The PW1 rather stated that he never challenged the existence of the certificate of occupancy and that his father’s signature on same is forged without more.
According to the counsel, the question now is, whether the court can declare the Plaintiffs as the rightful persons entitled to the customary right of occupancy of a land when a customary certificate of occupancy is already in the name of the Plaintiffs father and the Defendant’s husband ie Exhibit “F”. The Plaintiffs never applied for Exhibit “F” to be set aside for any reason whatsoever nor establish forgery but wants the court to make declaration that will contradict issues.
According to the counsel, the next question is “Whether the court can declare the Plaintiffs as the owners of a property with an equitable interest which could not establish title Exhibits “A” & “D” when there is a legal interest as in Exhibit “F” which have not been set aside. The counsel answered all these questions to the effect that the court cannot with respect declare the Plaintiffs as entitled to the grant of customary right of occupancy over a land without setting aside or canceling the existing Certificate of occupancy and or rely on equitable interest over legal interest over a land with Customary Certificate of Occupancy. There cannot be Certificate of occupancy existing and another order made to grant another Certificate without setting aside the existing Certificate.
It is submitted that the Plaintiffs could not by evidence establish their title over the land to warrant the grant of their reliefs. Exhibits “A” and “D” speak for themselves in that they could not establish and or ground the claims of the Plaintiffs. Referred to AIKI V IDOWU (2006) ALL FWLR (PT 293) P. 361.
It is submitted that a party who wants to succeed in a declaration of title to land must prove that no other person has a better right to the said parcel of land. This must be by clear preponderance of evidence discharging the burden on him to prove his case upon the standard required in a Civil trial. relied on OFOLARIN ADENlE V. FOlARIN OLUDE (2003) FWLR (PT 157) P. 1074 and ONWUAMA V EZEOKOLI (2002) 5 NWLR (PT 760) P. 553.
It is submitted that there is no credible evidence from the Plaintiffs to debunk the existence of the Certificate of Occupancy in the name of their father and the Defendant’s husband. The Plaintiffs failed to disclose this fact as at the time of commencement of the suit. Still failed to debunk same upon front loading it and copiously pleading same. The Plaintiffs were not able to establish evidence that they have better right to the said property over the Certificate of occupancy.
It is submitted that the Plaintiffs in their case claimed that the Defendant is their tenant and that the Defendant was to collect a certain sum of money from the house and return possession to the Plaintiffs. But under cross examination, the PW1 stated that he does not know the amount of money involved as rent, does not know when it expired and does not know how much is collected. The Plaintiffs also could not by evidence establish that the Defendant is in possession as their tenant. The Plaintiffs also admitted that the Defendants husband brought materials for the building, does not know the value/or amount of the building materials supplied. They could not establish the relationship between their late father and the Defendants husband.
According to the counsel, in an action for a declaration of title, onus of proof is on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to declaration of title. The Plaintiffs must rely on the strength of his own case and not the weakness of the Defendants case. CHIEF KALU IGWE & 20RS V CHIEF OKUWA KALU & 2 ORS (1990) 5 NWLR (PT149) P. 155 and KODILINYE V. ODU 2 WACA P. 336.
It is submitted that exhibit “A” which is strongly relied upon by the Plaintiffs was part of the arbitration documents with which decision was taken by the panel. The seller of the land by name Onyeulo stated before the arbitration panel that the land belongs to both the Plaintiffs father and the Defendants husband. Exhibit “A” supports Exhibit “F” the Certificate of occupancy registered as No: 10 at page 10 in volume 126 at the lands registry Owerri. Both the Plaintiffs and the Defendant admitted submitting to the arbitration of the Igwebuike Age Grade and same binds them. Referred to AWONUSI V AWONUSI (2007) ALL FWLR (PT191) P. 1642. The decision of the arbitration as contained in Exhibit “H” stated categorically that the land containing the 4 room shop belongs to the Plaintiffs and the Defendant.
It was based on the foregoing, it would be more probable to hold that the Plaintiffs failed to prove their case to the standard required by the Law to warrant the grant of their reliefs. the counsel urged the court to so hold considering Exhibit “A” and “B” on the one side and Exhibit “A” on the other side of the Plaintiff.
The plaintiff counsel formulated 2 issues for determination thus:
- Whether the Plaintiffs have by preponderance of evidence laid before this court proved their case and entitled to their claims.
- Whether the Honourable Court can grant the claims of the Plaintiffs in spite of Exhibits F and H.
It is submitted that the Plaintiffs by preponderance of evidence proved to the court that they are entitled to their claims before this court. The onus of proving the claims is on the Plaintiffs which in the instant case the Plaintiffs have by their consistent and unparalleled evidence discharged.
The law is trite that in proving title to land, the Plaintiffs must prove one of the various ways of ownership to land as stated in a plethora of authorities. In the instant case, the case of the Plaintiffs is that the land in question belongs to them as same was purchased by their late father. In proof of this claim, the Plaintiffs tendered Exhibit “A” and “D”.
According to the counsel having tendered the two Exhibits above, the Plaintiffs have shown the court that the land was actually purchased by their father. Exhibits “B” and “C” further shows that the father of the Plaintiffs was in absolute possession of the land after the purchase. These pieces of clearly established evidence were not controverted or discredited by the defence. ‘
It is further submitted that the Plaintiffs proved that their father paid for the land, took over possession as he was let in by the vendors, maintained possession and had witnesses to the transactions. Referred to execution parts of Exhibits “A” and “D”.
It is submitted that the story of the Plaintiffs on how the Defendant came into the land is clear and the conditions which were unchallenged. Having proved their case, the Defendant is now under burden to prove otherwise.
The Defendant failed woefully to produce before this court any reasonable ground to disentitle the Plaintiffs of the land in dispute. Upon cross examination, the Defendant admitted that her claim over the land is rooted on Exhibit “F” and H.
It is submitted that from Exhibit “H”, the decision was based on the production of Exhibit “F” before the panel. That is to say that the existence and/or recognition of Exhibit “H” solely depends on the sustenance of Exhibit “F” and should Exhibit “F” fail, Exhibit “H” which solely depends on it fails as well because the law is trite that you can keep something on nothing and expect it to stand.
It is submitted that the Defendant has made a heavy weather on Exhibit “F” being customary right of occupancy. The question that arises is “Can a Customary Right of Occupancy that has no root take precedence over the purchase receipt?” The answer is No. In the instant case, the Defendant only produced the Customary Right of Occupancy without any purchase receipt from the original owner. It is conventional that where a person is applying for a Certificate of Occupancy over a land that he does not acquire by inheritance, the person must produce evidence showing that the original owner of the land has granted the land to the person. The Defendant here failed to produce any document to show that her husband was granted the land in dispute by the original owner. The Certificate of Occupancy she parades cannot operate in the air. Giving recognition to the said Certificate of Occupancy will amount to allowing something to stand on nothing. The court is urged to court to resolve Issue NO.1 in favour of the Plaintiffs.
On issue 2 it is submitted that the court can grant the claims of the Plaintiffs in spite of Exhibit “F” and “H” tendered by the Defendant. it is submitted that a Certificate of Occupancy is not a conclusive proof of title to the land it relates to. The mere production of the Certificate of Occupancy does by itself entitle a party to a declaration. Consequently if it is successfully challenged, it will be nullified. Where there is evidence to show that the certificate was wrongly obtained, the court is entitled to nullify it. See Otukpo vs. John (2012) 7 NWLR p. 357, see also Registered Trustees Apostolic Church vs. Olowoseni (1990) 6 NWLR (Pt 158) p.514. In the instant case, upon cross examination by the Defendant’s counsel, PW1 answered that the Certificate of Occupancy was forged as the signature on the application for same was not his father’s own. The counsel referred the court to Exhibit “H” being the application of the said Certificate of Occupancy made on the 15th day of December, 1983 and Exhibit “H” being the Certificate of Occupancy dated 23/5/1983 from the two Exhibits, it is clear that the Certificate of Occupancy was wrongly and/or fraudulently obtained.
From the authority cited above, the court is duty bound to nullify the Certificate of Occupancy since the PW1 had challenged it by saying upon cross examination that the signature on the application was not that of his father and that the Certificate of Occupancy was forged. From Exhibits “F” and “H”, the Certificate was obtained before it was applied for and no court will reasonable believe same. The presumption on the Certificate of Occupancy is by the above rebutted absolutely. Referred to Ashiek vs. Bornu State Govt. (2012) 9 NWLR p. 1. See also Kyari v. Alkali (2001) 11 NWLR (pt. 724) 412.
According to the counsel, the Plaintiffs’ case was even assisted by Exhibit “H” to show that the land in dispute is made up of two portions as stated by the Plaintiffs as against the unbelievable story of the Defendant on the number of portions of the land. It is submitted that the Defendant’s evidence is not credible and the court is urged to hold same and grant the reliefs of the Plaintiffs.
Resolution of matter:
Part of the plaintiffs’ case is that they bought a piece of land in 1971. The plaintiffs under cross examination stated that the building was completed in 1979. The building plan tendered by the Plaintiffs has 8-11-78 as when it was prepared. Now if the house/shops are completed in 1979, then the Defendant has been collecting rent over the building since 1979. Under cross examination, the plaintiffs also stated that the time was extended for the defendant for 5 years to be collecting rent from 1989. The two friends at the center of the alleged agreement died in 1984 and 1985 respectively. From 1979 to 1989 is 10 years and if the time is extended for 5 years from 1989, it then means that it ended in 1994. From 1994 to the 2004 when the arbitration took place was 10 years. From 2004 to 2015 when the mother of the plaintiff died was is 11 years. And yet the Plaintiffs stated in evidence that the defendant has continued to collect the rent without giving any part of same to the plaintiffs since after the death of their mother in 2015 and that the defendant has continued to collect the same rent even after the period agreed with the plaintiffs expired. From the moment the period agreed with the defendant expired, it appears that the Plaintiffs did not take any step to recover the shops/property from the Defendant. There is no explanation for this obvious delay in the evidence of the Plaintiffs.
The Plaintiffs said they did not agree with the arbitration but there was no evidence of any step taken to have it overturned either by the court of law or any other superior/higher customary arbitration body. In that arbitration the claim of the Plaintiffs that a portion of land was given to them by one Bede Ogbekwem in lieu of payment for medication was challenged. As they person who the Plaintiffs father bought the land from in 1971, stated that it was the whole portion of land that was sold and there was not left or belonging to Bed Ogbekwem that was given in 1984 to the Plaintiffs father in lieu of payment for medication. It must be stated that the fact that the Plaintiffs submitted to the arbitration does not mean that they cannot contest its decision. Thus in HEANACHO & ANOR v. IWUAMADI & ANOR (2013) LPELR-20689(CA)
“It is however now accepted law that, a mere submission to customary arbitration by a party does not ipso facto bind such a party no matter the decision arrived at by such an arbitral body. The trend in judicial opinion is that, since the constitution has guaranteed a right of appeal, a person aggrieved by the decision reached in an arbitration could seek redress in a regular Court of the land, upto the highest Court, which is the Supreme Court. It is accepted that such a party is not required to submit willy – nilly to a decision that is clearly unjust to him. See OLOWU v. ABOLORE (1993) 5 NWLR (Pt. 293) p.253. Where the decision of a customary arbitration is challenged, Courts of law are expected to apply such decisions with circumspection
There is no challenge to this arbitral decision in which the Plaintiffs agreed that they set in motion and participated in. There is no relief against this arbitral decision.
The Plaintiffs accepted that at some point after the death of their father, their mother accepted to receive part of the rent from the defendant. The defendant concurred to this and stated that in the year 1985 after the death of the plaintiffs’ father she started giving assistance to the mother of the plaintiffs by allowing her with some money from the rent. At what point did the Plaintiffs stop collecting “some money from the rent” from the defendant? the plaintiffs have not shown atht at the expiration of the period allegedly agreed, which I found to be 1994, they stopped collecting some money from the rent from the defendant and assert their ownership or right of reversion.
In all these agreement things, on the part of the Plaintiffs, there are some un-answered questions such as:
- What is the value of the building material bought from the Defendant’s husband? The case is not that the Defendant bought the building materials rather that the Defendant deals on building materials and he supplied them or that they were bought from him. These purchases were not evidenced in writing. There were no receipts or invoices issued. So many materials are involved in building and can be regarded as building materials and it is not plausible that one dealer or seller will have all the building material that is used in building a house from the foundation to the roofing.
- What rent was fixed and for what duration specifically. None of them mentioned what the rent was or is at the time of commencement of this suit. An insight into what the rent was or is would have assisted in hazarding the value of the materials supplied on credit by the defendant.
The case of the defendant is that the property/land is/was jointly owned by her husband and the father of the plaintiffs but her husband singlehandedly developed/built the 4 shops on part of the land. Consequently that was an agreement that her husband will collect rent to cover the money he invested in building the house after which each of them will take over 2 rooms each. My husband was collecting the rent till he died in February 1984 and I continued to collect the rent from the 4 room shops. She was collecting the rent for the 4 shops until sometime in 2000 when she moved into 2 of the 4 shops. It is the defendant’s case that the 4 shops were eventually demarcated into two including the undeveloped portion of the land. And that she embarked on developing the undeveloped portion of part of her share of the land which the plaintiffs resisted and have brought this action.
Just like the plaintiffs, the Defendant who admitted she was and has been collecting the rent did not state the rent value and the duration. She equally did not tender any written agreement to this effect.
The Defendant tendered exhibit E which is an application for Customary Certificate of Occupancy said to have been jointly made by the late father of the plaintiffs and the husband of the defendant. The defendant said that this is one of the documents she presented at the arbitration and upon which decision was made in her favour affirming joint ownership of the land in dispute.
This application it appears was made while the two were alive
A look at exhibit E shows it has pictures of two persons which is probably that of the father of the Plaintiff and the husband of the Defendant respectively. It is signed or has the name and the signature of Cyril A Okeke and Donatus A Ehiudu.
The Plaintiffs’ witness stated under cross examination that he disputed the signature attributed to his father in the document as not being the signature of his father. He did that at the arbitration. In this trial it will appear that no effort was made in evidence to challenge the authenticity of the signature or the document.
The burden of proof in civil matters is on the party who asserts a fact to prove same, for he who assets must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities. See WALTER B. ASUQUO BONNIE & ANOR v. MRS BERTY FINE AGI & ORS (2013) LPELR-21847(CA). However an issue of crime such as forgery alleged in a civil proceeding must be proved beyond reasonable doubt. In MR. OROBI ARINZE V MR. MARTIN NWOSISI (2015) LPELR -40713 (CA it is stated:
“—the law is settled that if in a civil matter/action, forgery is alleged, it imputes criminality and in consequence, the standard of proof is that which is beyond reasonable doubt.
It is only what is pleaded that is required to be proved. Evidence given in respect of issue not pleaded is of no moment. See NSIEGBE V. MGBEMENA. (2007) ALL FWLR (PT. 372) 1769 AT 1795 PARA. F (SC. It would appear that forgery is not part of the plaintiff’s case. In ADEDEJI & ANOR v. CFAO NIGERIA PLC (2014) LPELR-22309(CA) it is stated:
“While it may be necessary to plead all ingredients of forgery as defined in section 465 of the Criminal Code, a party alleging the crime must plead its major ingredients. These include the person who committed the offence and the document forged. Of course, he must also plead facts, which will enable the court to infer means rea. A mere loaded vague and nebulous averment is not Now following the application enough for the purposes of pleading the crime of forgery.” Per BAGE, J.C.A. (Pp. 26-27, paras. F-C)
It is trite that production of document of title and document relating to title to land is not sufficient where the document is contested. Thus, the mere production of a Right of Occupancy/Certificate does not by itself entitle a party to a declaration as any party without title to a piece or parcel of land in respect of which a grant of right was issued, acquires no right or interest. See ALHAJI ABBA ASHEIK V. BORNO STATE GOVERNMENT & ORS. (2011) LPELR-9214(CA) PER DONGBAN-MENSEM J.C.A. (PP. 29-30, PARAS. B-A).
Certificate of Occupancy only serves as prima facie evidence of title or possession to land but not conclusive proof of same. Therefore, a holder of a certificate of occupancy is presumed to have the exclusive right of occupancy over the land to which it relates until proven otherwise. A person who can establish with evidence a better title over the land can render void the right of occupancy conferred on the holder of a certificate of occupancy. In LADUNNI V. ADESOYE(2015) LPELR-25579(CA) it is stated:
“…production of documents of title does not automatically entitle a party to a claim in declaration. Thus, before the production of documents of title is admitted as sufficient proof of ownership, the Court must satisfy itself that:
(a) the document is genuine or valid;
(b) it has been duly executed; stamped and registered;
(c) the grantor has the authority and capacity to make the grant; and
(d) that the grantor has in fact what he propose to grant;
(e) that the grant has the effect claimed by the holder of the instrument. See Romaine vs. Romaine (1992) 4 NWLR pt.238 pg. 650; Kyani vs. Alkali (2001) FWLR pt.60 pg.1481; Dabo vs. Abdullahi (2005) 29 WRN 11 SC, (2005) 2 SCNJ pg 76, (2005) 7 NWLR pt.923 pg.181.” Per NDUKWE-ANYANWU, J.C.A. (Pp. 15-16, paras. E-B)
Also, even where there is no relief seeking for the invalidation of a certificate of occupancy, the court has the right where proved or obvious to invalidate a certificate of occupancy. See OMIYALE V MACAULAY (2009) 7 NWLR (PT. 1141) 597.
The plaintiffs have drawn the attention of the court in their address to the fact that the application for the issuance of certificate of occupancy was made on the 15-12-1983, and the certificate of occupancy issued pursuant to the application is dated 23-5-1983. In other words the customary certificate of occupancy pre-dated the application. What is the effect of this on the certificate or the case of the defendant? The Defendant is not making any claim based on this certificate. I do not think that the fact the certificate of occupancy predated the application for its issuance, is sufficient to vitiate the certificate.
As earlier, highlighted, the root of the claim on both sides is on oral agreement. While the plaintiff version of the oral agreement is that the Defendant financed the development and will therefore collect rent till he has recovered his expenses and vacate, the Defendant version is that he will collect the rent and after he must have recovered his expenses, the shops/property will be shared into two parts between the defendant and the plaintiff. The plaintiff is therefore relying on the existence of oral agreement. It is clear the terms of the agreement are not in writing. However, the law is settled that an oral agreement freely entered into by parties is binding on the parties and gives rise to an enforceable contract. See MOSES CHRISTIAN v. BABAGANA UMARA & ANOR (2021) LPELR-53242(CA). It is trite, that for there to be a binding contract or agreement between parties, they must be in consensus ad idem.
An agreement or contract is a bilateral affair which needs the ad-idem of the parties. Where a party alleges the existence of an oral agreement, which is a unique method and procedure he must give credible evidence as to the modalities of such agreement. In other words, a party alleging oral agreement is duty bound to prove such an agreement to the hilt. In REV. MRS. AUGUSTINAH BAWA SHITGURUM & ANOR v. SUNVIC INVESTMENT COMPANY LIMITED (2022) LPELR-57790(CA) it is stated:
“In law, the existence of oral agreement is still subject to proof by credible evidence, including the modalities for and/or of such oral agreement and not by mere averments in pleadings, failing which such an averment on oral agreement would remain bare and therefore, unproved and of no consequences. Thus, such a party who alleges the existence of oral agreement is duty bound to prove it. See Conoil Plc V. Nwuke (2017) 4 NWLR (Pt. 1555) 294.” Per GEORGEWILL ,J.C.A
It is also trite that a plaintiff must prove his case with credible and cogent evidence to succeed in his claims. The plaintiff must succeed on the strength of his case and not on the weakness of the defence, more especially where there is no counter claim. The duty of the defence is only to defend. The exception to that rule is that the rule changes if the plaintiff finds in the evidence of the defence facts which strengthen his own case. See EHOLOR V. OSAYANDE (1992) 6 NWLR (PT. 249)524, OMOREGIE V. AIWERIOGHENE (1994) 1 NWLR (PT. 318) 488.
The defence may be weak; its weakness did not give any strength to the plaintiffs’ case. I am unable to find for the plaintiffs. The suit of the plaintiff is accordingly dismissed.
I so hold
I.M.Njaka
Judge
14-10-2022