(2018) LPELR-43759(CA)

Transcription

1 CHINEVU & ANOR v. UGBOR & ANOR CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Enugu Judicial Division Holden at Enugu ON WEDNESDAY, 14TH FEBRUARY, 2018 Suit No: CA/E/303/2014 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO 1. AMOS CHINEVU 2. UZO-CHUKWU CHINEVU 1. IFEANYI CHUKWU UGBOR 2. BENEDICT UGBOR Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - COUNTER-CLAIM: Effect of failure of a plaintiff to file a reply/defence to a counter-claim "A counter - claim is separate and independent of the main claim and must be determined on its own merit. As it is independent and separate from the main claim, it is necessary for a plaintiff in the main claim to file and serve a defence to a counter - claim to join issue with the counter claimant. Where as in the instant case, the plaintiffs failed to file a defence to properly traverse the material averments in the counter - claim, then there will be no issues joined between the parties on the subject matter of the counter - claim, and the allegations contained in the counter - claim will be regarded as admitted. See U. B. N. PLC -V- DAWODU (2003) 4 NWLR (Prt 810) 287, MAOBISON INTER LINK LTD -V- U.T.C (NIG) PLC (2013) 9 NWLR (Prt 1359) 197 and ESUWOYE -V- BOSERE (2017) 1 NWLR (Prt 1546) 256 at 271."Per SHUAIBU, J.C.A. (Pp , Paras. D-B) - read in context 2. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: How issues for determination should be framed "At page 163 of the record of appeal, appellants filed only one ground of appeal that is the judgment of the Court was against the weight of evidence. The appellants seems not have taken any further step in filing additional grounds and all the issues were distilled from this ground and therefore, there is no indication as to which issue is tied to the said ground of appeal. It is pertinent to point out here that issues for determination in an appeal should be formulated in general practical terms and tailored to the real issues in controversy in the case."per SHUAIBU, J.C.A. (Pp , Paras. E-A) - read in context

3 3. APPEAL - PROLIFERATION OF ISSUES: The rule against proliferation of issues for determination "Likewise, prolixity or proliferation of issues is not ideal as it tends to obscure the core issue to be determined and tends to reduce the issues to trifles. See NWOSU V. IMO STATE ENVIRONMENTAL SANITATION (Prt 135) 688 at 714."Per SHUAIBU, J.C.A. (P. 12, Paras. B-C) - read in context 4. EVIDENCE - ILLITERATE JURAT: Effect of absence of illiterate jurat in a document signed by an illiterate "A jurat is a certificate issued by the person who wrote or recorded the statement of another person affirming that he wrote down or recorded the statement on behalf or authority of the maker. The absence of jurat even on a document signed by an illiterate goes to the weight to be attached to the document and does not render it null and void. See JOHN V. STATE (2017) 16 NWLR (Prt 1591) 304."Per SHUAIBU, J.C.A. (P. 14, Paras. A-B) - read in context

4 5. EVIDENCE - PROOF OF OWNERSHIP OF LAND: Whether oath taking can be used to establish ownership of land "On oath taking as a means of establishing ownership of land learned appellants' counsel contended that oath taking is only relevant to Customary Courts and does not apply in a High Court except for the purposes of jurat or swearing of witnesses. The learned trial judge had made a specific finding that in Aku custom if a person who takes oath does not die in 28 days; that person own the land. And in the instant case, Ezeonyiri who took oath does not die and therefore owns the land the subject matter of dispute. In the case of ACHIAKPA V. NDUKA (2001) 39 WRN 1 at 24-25, the Supreme Court described the practice of determining land disputes on the basis of the swearing of juju as an "archaic and unconventional". But in ONYENGE V. EBERE (2004) 6-7 SC 52 at it was inter alia held that where parties decide to be bound by traditional arbitration resulting in oath taking, common law principles in respect of proof of ownership or title to land no longer apply. In such a situation, the proof of ownership or title to land will be based on the rules set out by the traditional arbitration resulting in oath taking. Thus, where the fact of such arbitration and oath taking and survival have been successfully established as in the instant case, the oath taker acquires the rights of full ownership and possession. And if the other party remains in possession, he does so as a trespasser if such possession is not with the consent of the owner. See also UME V. OKORONKWO (1996) 12 SCNJ 404."Per SHUAIBU, J.C.A. (Pp , Paras. B-C) - read in context

5 6. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person to sign a legal process/effect of legal documents signed/franked by a law firm "A legal process signed and issued by a law firm is incompetent and is liable to be set aside. The processes used in Court must be signed and issued by a person and in the proper name of the person as enrolled to practice law in Nigeria under the Legal Practitioners Act. Consequently, Court processes filed in Court are to be signed in the following manner: (a) The signature of counsel which may be any contraption, (b) The name of counsel clearly written, (c) Who counsel represents, (d) Name and address of legal firm. Therefore, where as in the instant case, the originating processes was clearly signed by "Jos Nna Odo and Co." same is incompetent. See S.L.B CONSORTIUM LTD V. NNPC (2011) 9 NWLR (Prt 1252) 317, ALAWIYE V. OGUNSANYA (2013) 5 NWLR (Prt 1348) 570, OKWUOSA V. GOMWALK (2017) 9 NWLR (Prt 1570) 259 at 289 and WILLIAMS - ADOLD/STAMM INTERNATIONAL (NIG) LTD (2017) ALL FLWR (Prt 879) 721."Per SHUAIBU, J.C.A. (Pp , Paras. A-A) - read in context

6 7. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Whether the issue of jurisdiction can be raised at anytime and stage "Learned appellants' counsel contention is that having not raised these issues timeously; the respondents are deemed to have waived and acquiesced their rights to so object. Generally, a preliminary objection is a challenge to the competence of a Court's process, be it a motion suit or an appeal, as the case may be; which terminates the proceedings at the stage the objection is raised. However, failure to commence a suit with a valid originating process is a fundamental error which goes to the root of the action. In the instant case, the originating process being signed by a law firm, goes to the root of the action and since the condition precedent for the exercise of the Court jurisdiction, was not met to place the suit before the Court for the exercise of its jurisdiction it is incompetent ab initio. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, TIMITIMI V. AMABEBE (1953) 14 WACA 374 and KENTE V. ISHAKU (2017) 15 NWLR (Prt 1587) 94. Also issue of jurisdiction being fundamental, can be raised at any time. It can be raised suomotu by the Court or even viva voca by any of the parties. The issue of competence or jurisdiction of Court can therefore be raised at any stage at a proceeding even on appeal for the first time."per SHUAIBU, J.C.A. (Pp , Paras. D-C) - read in context

7 MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): What calls for decision in this appeal is whether the Rules of Joint Tenancy and Jus Accrescendi would apply to confer possession of the plot in dispute to the 1st plaintiff (now appellant) on account of being custodian of the undivided Estate. And whether oath taking confer title to the land on the defendants (now respondents). The plaintiffs had on the 4th day of August, 2011 in the Nsukka Judicial Division of the High Court of Enugu State of Nigeria instituted an action against the Defendants Jointly and severally claiming as follows: - 1. A Declaration that the Defendants have trespassed on the plaintiffs land. 2. An Order compelling the Defendants to vacate the land. 3. An Interlocutory injunction ordering injunction the parties to refrain from the Res until the substantive suit is determined. 4. Payment to the plaintiffs by the Defendants of a sum of Two Million Naira (N2, 000, ) as General Damages. 5. A payment to the plaintiffs by the Defendants of the sum ofn200, (Two Hundred Thousand Naira) as special Damages. Pleadings 1

8 were ordered in the suit and were duly settled, filed and exchanged. At the hearing, parties led evidence in support of the claims inclusive of the defendants counter-claim. In their statement of claim, the plaintiffs averred that both the parties hails from the same Amankpo family in UmmezikeAku Town and that they have a land policy wherein any son of Umuchievu who wants a land only need to apply to his other brothers. That the 1st plaintiff had gathered all the sons of Umuchinevu Anyam and requested for the land and was allowed to possess same for residential house. The averments in paragraphs of the plaintiffs statement of claim are significant and they are as follows: 12. Other children of Ugbonabor made such a request and were given allocation Viz, David, Titus and Stephen. 13. Since the year 1948 that the 1st plaintiff took possession of the land no member of Umuchinevu Anyam opposed him. 14. And Amos land was the only Chinevu land allocated to Onuze family. 15. That Amos the 1st plaintiff has been farming the land since 1948 without opposition. 16. That Amos has produced over one thousand blocks 2

9 (1000) on the land side. 17. That Amos the 1st plaintiff has for long prepared a building plan for the land. He pleads it and shall rely on it at trial. 18. On Saturday 24th April, 2011 Amos hired a brick layer who pegged the land in preparation for building. 19. On Monday 26th April Mr. IfeanyiChukwu Ugbo and Benedict Ugbo (Defendants), sons of Ezeoyiri Ugbor (deceased) went to the site, removed all the peggings and blocks, planted yams on the site and laid claim on the land. 20. When the plaintiffs discovered the trespass on the land by the Defendants, they wasted no time and on Tuesday 27th April, 2011 planted ACHIRIKE crops on the heaps of yams. 21. The plaintiffs went further to lay complaint to the large family of Umuchinevu and UmuEzekwuoke Eze headed by Madubuko Ezike on 30th April, The larger family ordered the Defendants to keep out of the land. 22. The Defendants rejected the decision and laid complaint to the entire Amankpo family. 23. The entire Amankpo family ordered the Defendants to vacate the land but the Defendants would not. 24. The Defendants have been advised by Umuchinevu Anyam to apply for 3

10 allocation of land and leave Amos (1st plaintiff) alone. 25. The Defendants are making life unbearable and insecure for Amos who is now 80 years old and the oldest man in Umuchinevu Anyam family and the father and uncle to all UmuChinevu Anyam. 26. The blocks molded by the plaintiffs have been tampered with and many destroyed by the Defendants. 27. The Defendants are allegedly burying juju and charms on the site to wound or affect the plaintiffs. 28. The construction of building on the land started by the plaintiffs was stopped by the Defendants. The Defendants, denied the above claim maintaining that the family land was shared and their father was given the land the subject matter of this suit at a hamlet, Umuobara in Umuzike. And that upon taking possession by their father, Umuobara people challenged the Chinevu Ugbor family to swear to their family ownership, to which only Defendants father did. Thus, the defendants father was made to take oath of family ownership of the plot of land to enable him possess the land if he did not die after 7 days native weeks (28 days) required by the custom of Aku people in Enugu State. The 4

11 Defendants father survived the oath and Salvo gun was fired reminding the inhabitants that their father possess the land opposite the Akudjewa Micro Finance Bank Limited. After the conclusion of hearing and adoption of final addresses of counsel on both sides; the learned trial judge Amanoh, J in a reserved and considered judgment delivered on 30th day of September, 2013 dismissed the plaintiffs claims on the grounds that the originating process was signed by a law firm and that the depositions of PW1 & PW2 (who are not literates) bears no jurat as required by law. He observed at pages of the record of appeal as follows: In this case the counsel use the name of Jos Nnaoda & Co. fails to satisfy the Legal Practitioners Act LFN 2011, as that name is not a legal practitioner authorized to appear or act before the Supreme Court of Nigeria. It is at best a business name. The provision of the law and Rules of Court are not made for a fun; they are to be obeyed by counsel and parties moreover this is a fundamental error and incurably fatal. Furthermore the written deposition of 5

12 the PW1 and PW4 are not in compliance with Section 119 (1), (2) (c d) and (3) (4) and (5) of the Evidence Act which is very vital to the deposition or evidence of any witness. These plaintiffs witnesses (1 and 2) written statements do not contain the very important illiterate jurat even though they thumprinted the written deposition and further under cross examination said they cannot read and write. There is therefore nothing to show that they were read over to the witnesses and that they understand the content of the depositions attributed to them. This failure is fatal to their statement. These statements ought to be and are therefore discountenanced accordingly. He added: - In consequence also the originating processes of the plaintiff are unsupportable by Court; they are incompetent and therefore ought to be dismissed and are hereby dismissed. He went on: Also of deep concern is the endorsement made on the writ. It compounds the plaintiff s case. It is confusing. Rambling and does not in any sense bear any relevance to the case at hand. The endorsement is as follows: 6

13 "INDORSMENT TO BE MADE ON THE WRIT BEFORE ISSUE THEIROF The plaintiffs sue the Defendants whose address is No.9B Lord s Street Independence Lay out Enugu and Magistrate Court Registry Ndeabor Amiri Local Government Area; Enugu State claiming declaration that the execution levied against the plaintiffs at plots 380 and 389 community Estate Trans-Ekulu, Enugu is illegal order restoring the plaintiffs to the said plots the sum of thirty six million Naira (36, ) as special damages, Two Billion Naira (N2B) as general damages and perpetual injunction restraining the Defendants, their agents or priviesetc from disturbing the plaintiffs in their enjoyment of plots 380 and 389 community Estate, Trans Ekulu, Enugu. This writ is issued by J. N. Odo Esq. whose address of service is No. 9 Third Avenue, Trans- Ekulu Enugu. He concluded at page 162 of the record of appeal thus: - The overwhelming evidence of the defendants to prove their counter claim was not challenged, controverted or contradicted by the plaintiffs. In that event, I am satisfied that the defendants have proved their counter 7

14 claim according to law and they are entitled. On the issue of oath taking the further present circumstance it is evident that defence reliaction (sic) to establish their father s interest in the property. That to me further establishes their original interest of ownership: In the final consequence the plaintiffs originating process and the case is hereby dismissed. The defendants counter claim succeeds. Dissatisfied with the above judgment, the appellants lodged an appeal before us on 30th day of October, As usual, briefs were filed and exchanged. The appellants formulated three issues for the determination of this appeal as follows: 1. Whether the rule of jus Accrescendi (as in Joint Tenancy) (right of survivorship) would rightly confer possession to the 1st appellant being the elders on the family and the custodian of the undivided estates. 2. Whether Oath Taking has any relevance in determining ownership of property at common law? 3. Whether preliminary objections as an equitable rule are meant to heal defeat in pleadings or hide the defects till judgment stage? The respondents 8

15 have adopted the three issues formulated but added a fourth issue thus: Whether the trial Court was wrong in dismissing the appellants originating processes and case and in granting the counter claim of the Respondents? Learned counsel for the appellants, Jos Nna Odo, Esq. submitted on Issue No.1 that the appellants had led sufficient evidence in establishing that the 1st appellant as head of the family is the custodian of the land and therefore enjoys the Jus Accrescendi (right of survivorship) which right has not been objected to by the respondents. On Issue No. 2, learned counsel, reacting to the conclusion of the trial Court respecting oath taking submitted that the only Oath known to the High Court is jurat and swearing of witness. Thus oath taking as a means of determining ownership of property is only relevant to customary Courts. Therefore, the trial Court had erred in accepting evidence of oath taking as proof of land ownership. On Issue No. 3, learned counsel submitted that preliminary objections are raised timeously upon exchange of pleadings being an equitable remedy meant to correct errors of procedure. And having determined the 9

16 preliminary objections at the very tail end of the trial, the trial judge was biased against the appellants. In effect, the respondents have acquiesced their rights to raise the preliminary objection after exchanging pleadings. Learned respondents counsel, Boniface N. Ugwu, Esq. submitted that the rule of Jus accrescendi (right of the last surviving tenant) applies to tenants and not owners by inheritance. He maintained that the Respondents have been in possession and farming on the land in dispute and that their father (Ezeoyiri) never consented to the land being given to the 1st appellant. On Issue No. 2, learned counsel referred to the evidence of PW1 and PW3 in submitting that the appellants have admitted that oath taking establishes ownership and that the oldest of the family in Aku custom takes charge of family land and that the respondents father, the oldest as at the time oath of ownership of the land was taken. Thus, parties are ad idem that oath taking establishes or confers ownership and that in Aku custom, the sons of a man inherit his property and not his brothers. He referred to MOJEKWU V. MOJEKWU (1997) 7 NWLR (Pt 10

17 572) 283. On Issue No. 3, he referred to paragraph 28 of the statement of defence in contending that the respondents have timeously challenged the competence of the appellants suit and therefore submitted that the lower Court had x rayed the evidence before it in entering judgment in favour of the respondents. Respecting the respondents Issue No. 4, learned counsel submitted that a counter claim is independent of the main claim and where as in the instant case, the main claim collapsed, the Court was left with only the counter claim which was not challenged at the trial. Therefore, the trial Court was right in entering judgment in favour of the respondents. I have carefully considered the various formulations and with due respect to both counsel, the issues as formulated and argued above leave much to be desired. At page 163 of the record of appeal, appellants filed only one ground of appeal that is the judgment of the Court was against the weight of evidence. The appellants seems not have taken any further step in filing additional grounds and all the issues were distilled from this ground and therefore, there is no 11

18 indication as to which issue is tied to the said ground of appeal. It is pertinent to point out here that issues for determination in an appeal should be formulated in general practical terms and tailored to the real issues in controversy in the case. Likewise, prolixity or proliferation of issues is not ideal as it tends to obscure the core issue to be determined and tends to reduce the issues to trifles. See NWOSU V. IMO STATE ENVIRONMENTAL SANITATION (Prt 135) 688 at 714. In my view, having regard to the judgment appealed against and the ground of appeal, the fundamental issue germane to the determination of this appeal may be formulated thus: Whether or not the learned trial judge was right in dismissing the appellants originating processes and entering judgment for the respondents in respect of the counter claim. I have right from the onset reproduced the relevant passages in the judgment of the trial judge pertinent to the issue under consideration. It is not in dispute that the originating processes in the suit culminating to this appeal was signed by Jos NnaOdo and Co and also as Igwe Nezoroha 12

19 Chambers situate at No.9 Third Area T/Ekulu Enugu, a firm of Solicitors. Also not in dispute is the fact that written depositions of PW1 who is not literate does not contain an illiterate jurat. A legal process signed and issued by a law firm is incompetent and is liable to be set aside. The processes used in Court must be signed and issued by a person and in the proper name of the person as enrolled to practice law in Nigeria under the Legal Practitioners Act. Consequently, Court processes filed in Court are to be signed in the following manner: (a) The signature of counsel which may be any contraption, (b) The name of counsel clearly written, (c) Who counsel represents, (d) Name and address of legal firm. Therefore, where as in the instant case, the originating processes was clearly signed by Jos Nna Odo and Co. same is incompetent. See S.L.B CONSORTIUM LTD V. NNPC (2011) 9 NWLR (Prt 1252) 317, ALAWIYE V. OGUNSANYA (2013) 5 NWLR (Prt 1348) 570, OKWUOSA V. GOMWALK (2017) 9 NWLR (Prt 1570) 259 at 289 and WILLIAMS - ADOLD/STAMM INTERNATIONAL (NIG) LTD (2017) ALL FLWR (Prt 879) 13

20 721. A jurat is a certificate issued by the person who wrote or recorded the statement of another person affirming that he wrote down or recorded the statement on behalf or authority of the maker. The absence of jurat even on a document signed by an illiterate goes to the weight to be attached to the document and does not render it null and void. See JOHN V. STATE (2017) 16 NWLR (Prt 1591) 304. In the instant case, the learned trial judge was right not have attach weight to the written deposition of PW1. Learned appellants counsel contention is that having not raised these issues timeously; the respondents are deemed to have waived and acquiesced their rights to so object. Generally, a preliminary objection is a challenge to the competence of a Court s process, be it a motion suit or an appeal, as the case may be; which terminates the proceedings at the stage the objection is raised. However, failure to commence a suit with a valid originating process is a fundamental error which goes to the root of the action. In the instant case, the originating process being signed by a law firm, goes to the root of the action and since the 14

21 condition precedent for the exercise of the Court jurisdiction, was not met to place the suit before the Court for the exercise of its jurisdiction it is incompetent ab initio. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, TIMITIMI V. AMABEBE (1953) 14 WACA 374 and KENTE V. ISHAKU (2017) 15 NWLR (Prt 1587) 94. Also issue of jurisdiction being fundamental, can be raised at any time. It can be raised suomotu by the Court or even viva voca by any of the parties. The issue of competence or jurisdiction of Court can therefore be raised at any stage at a proceeding even on appeal for the first time. The next germane issue is the entitlement of the respondents to judgment. The appellants who were plaintiffs before the lower Court have the onus to satisfy the Court on the evidence produced by them that they are entitled to the declaration sought. The appellants main claim having collapsed, the learned trial judge had rightly in my view resorted to the merit of the counter claim when he found at page 161 of the record of appeal thus: The defendants testified as to the long ownership of the land in dispute dating 15

22 back to the late progenitor chinevu Anyiam (deceased) who passed the land to his two sons Ugbor became the oldest followed by the father of these defendants Ezwonyiri Ugbonabor Chinevu in that the defendants father eventually became the oldest in the family and being the custodian of the family land. It is their case that the family land was shared and their father was allocated the land in dispute. That thereafter Umobora people contested the ownership of the land with their family and so the defendants father Eze Onyiri undertook three oaths administered by Dw1 himself. A counter claim is separate and independent of the main claim and must be determined on its own merit. As it is independent and separate from the main claim, it is necessary for a plaintiff in the main claim to file and serve a defence to a counter claim to join issue with the counter claimant. Where as in the instant case, the plaintiffs failed to file a defence to properly traverse the material averments in the counter claim, then there will be no issues joined between the parties on the subject matter of the counter claim, and 16

23 the allegations contained in the counter claim will be regarded as admitted. See U. B. N. PLC V DAWODU (2003) 4 NWLR (Prt 810) 287, MAOBISON INTER LINK LTD V. U.T.C (NIG) PLC (2013) 9 NWLR (Prt 1359) 197 and ESUWOYE V- BOSERE (2017) 1 NWLR (Prt 1546) 256 at 271. On oath taking as a means of establishing ownership of land learned appellants counsel contended that oath taking is only relevant to Customary Courts and does not apply in a High Court except for the purposes of jurat or swearing of witnesses. The learned trial judge had made a specific finding that in Aku custom if a person who takes oath does not die in 28 days; that person own the land. And in the instant case, Ezeonyiri who took oath does not die and therefore owns the land the subject matter of dispute. In the case of ACHIAKPA V. NDUKA (2001) 39 WRN 1 at 24 25, the Supreme Court described the practice of determining land disputes on the basis of the swearing of juju as an archaic and unconventional. But in ONYENGE V. EBERE (2004) 6 7 SC 52 at it was inter alia held that where parties decide to be 17

24 bound by traditional arbitration resulting in oath taking, common law principles in respect of proof of ownership or title to land no longer apply. In such a situation, the proof of ownership or title to land will be based on the rules set out by the traditional arbitration resulting in oath taking. Thus, where the fact of such arbitration and oath taking and survival have been successfully established as in the instant case, the oath taker acquires the rights of full ownership and possession. And if the other party remains in possession, he does so as a trespasser if such possession is not with the consent of the owner. See also UME V. OKORONKWO (1996) 12 SCNJ 404. In all, I answer the lone issue in the affirmative. I therefore find no merit in this appeal and it is hereby dismissed. I award the respondents N50, costs. HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in advance, the lead judgment just rendered by my learned brother M. L. Shuaibu, JCA. I agree with the reasoning therein for the conclusion that the appeal is lacking in substance. I also dismiss it and I adapt the consequential orders 18

25 made in the judgment inclusive of the one as to costs. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in total agreement with his reasoning and conclusions in dismissing the Appeal as lacking in merit. I also abide by other consequential made thereto. 19

26 Appearances: J. N. Odo For Appellant(s) B. N. Ugwu, with him,c. S. Eseli For Respondent(s)