CASE SUMMARY OF:
Joshua Okpara v. Chief John Uba Anozie & Ors (2020) - CA
by NSA PaulPipAr
AREA OF LAW
- Land Law.
- Preserve the Res.
- Originating summons.
1. Joshua Okpara
1. Chief John Uba Anozie.
2. Chief Emmanuel Obinna Anozie.
3. Daniel Abameziri Anozie.
4. Okenze Alex Anozie.
5. Cletus Anozie.
6. Michael Anozie.
7. Uzodinma Anozie.
8. Livinus Anozie.
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Ita George Mbaba, J.C.A.
* FOR THE APPELLANT
- K.E. OWUAMALAM, ESQ.
* FOR THE RESPONDENT
- IBENEME NJOKU, ESQ.
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FACT (as relating to the issues)
This Appeal is against the judgment of Imo State High Court in Suit No. HOW/98/2007, delivered on 11th March, 2013, by Hon. Justice Ngozi Opara, wherein the trial Court gave judgment to the Claimants (now Respondents).
The trial Court had earlier on 23/5/2011 granted an order of Interlocutory Injunction in favour of the Claimants, affirming the order of renewal of the originating process, which the Appellant had challenged as having expired 3 years before the Respondents sought an order for its renewal.
Appellant filed this Notice of Appeal on 20/3/13 against both the said interlocutory decision and the final judgment.
At the Lower Court, the Respondents (as Claimants) had sought:
(1) Declaration that the Claimants are entitled to the Statutory Right of Occupancy over the land known as UZO AMAKOHIA EGBELU UMUIMEKA, or Plot 199 Works Layout, Owerri, Imo State.
(2) The sum of N10,000,000 (Ten Million Naira) damages for trespass.
(3) Perpetual Injunction restraining the defendant, his privies, agents, workers and servants from further trespass on the land of the Claimants.
**PRELIMINARY OBJECTION OVERRULED.
i. The Respondents filed a preliminary objection to the hearing of the Appeal, saying that this Court has no jurisdiction to hear the Appeal, because the Respondents had already executed the judgment and passed interest to a 3rd party.
1. Whether there was a competent originating process in this matter at the trial Court, upon which the Court conducted and determined the matter.
2. Whether the trial Court's final judgment of 11th March, 2013 in this matter was not against the weight of evidence, especially considering the fact that the said Court ignored and did not consider the Chart document from Lands Registry Owerri Exhibit 7, which charted the res Plot 199 Works Layout, Owerri into the expanse of land DW2, acquired from Declan Amadi native of Umuimeka, Orji, Owerri, to whom Appellant traced his Donors title.
(3) Whether the trial Court did not breach the Appellant's right to fair hearing, when on the 11th March, 2013, before delivering its judgment, it ignored the Appellant's protest that the Respondents' final written address was not served on him, for him to exercise his right of reply on points of law.
RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, WITH N50,000 COST AGAINST THE APPELLANT]
i. I agree with the Appellant, that the so-called preliminary objection by the Respondents is just a ploy to stall or deny the Appellant the right to exercise his constitutional rights of Appeal, stipulated in Section 241 of the 1999 Constitution, as amended. The fact that the Respondents hurriedly transferred the subject matter of the Suit to a 3rd party on 16/3/2013, upon getting judgment on 11/3/2013 (less than a week of getting the judgment) cannot, in my opinion, discount or diminish the constitutional rights of the Appellant to appeal against the said judgment. If anything, I think the said 3rd party, who took the risk of buying or taking interest in the subject matter of the Suit (Plot 199 Works Layout, Owerri), soon after the judgment, which recognized the Respondents right to the land, was, or should have been, on due notice of this appeal, and by so doing, also acquired interest in every encumbrance associated with the property and would be free to join or be joined as an interested party to the Appeal, if he so elected. The Respondents are, therefore, in error to think that passing their interest in the subject matter of the Suit to a 3rd party has robbed this Court of the jurisdiction to entertain the Appeal, brought by a party to the Suit, against the other party in the Suit, and all of them, parties on record in this Appeal.
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I tend to agree with the reasoning of the Respondents, that the application for renewal of the writ of summons could only have been done by an ex-parte application, because it was only the interest of the Respondents (as Claimants) that was to be determined by the application to renew the writ of summons.
ii. An application to renew an expired writ of summons is process to give or restore life to a litigation process to originate a Suit and the Defendant (Opponent) has no interest in the process, until the same is given life and served on him (Defendant). Thus, the defendant cannot talk of joining issues with a Plaintiff, who applies to renew or restore life to an expired originating process, in my opinion.
iii. I think, the Respondent had promptly applied to renew the writ of summons, upon the order of 16/10/10, having served the service of same on the Appellant. And, when the trial Court ordered the renewal of the said Originating process (Writ of Summons) on 22/11/2010, the order breathed life into the said Writ of Summons and the subsequent service of the same on the Appellant by substituted means was proper, in the circumstances.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.
i. In this case, the trial Court had found that the evidence of Respondents was satisfactory, in the tracing of their title to the land in dispute; and that Appellant's evidence was wanting, especially as the DW2's evidence of purchase of the lands in the area (including the land in dispute) from Declan Amadi, was not substantiated particularly as Bernard Olua, who allegedly witnessed the sale, was not called to testify (even when he was said to be alive) to show that what DW2 bought, from Declan Amadi, included the land in dispute plot 199 Works Layout, Owerri.
Appellant did not also call evidence of the officials from the land Registry and or Owerri Capital Development Authority, on the charting of the Plots of the lands in their Exhibit 7, and the ownership of same, and I think, it was his (Appellant's) duty to call such evidence, not the Respondents' duty. I resolve the Issue against the Appellant, as I cannot see how I can fault the decision of the trial Court, that the Respondents had established their claim.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.
i. I think, Appellant himself anticipated the futility of this issue (which is not covered by the Records of Appeal), when his Counsel alleged (in what appears as blackmailing the trial Court) that he only saw Respondents' address on the date of the judgment, and he raised protest against it, and sought to be allowed to read the Address for possible reaction on points of law, before the judgment, but the Court refused/or ignored him, and would not record his protest! The Respondents' Counsel had denied the above allegations and had asserted that Appellant had been served with their address and that there was no such protest at the time of reading the judgment; that Appellant was only acting his usual mischief, by alleging such blackmail against the trial Judge. There is nothing in the Records of Appeal to support Appellant's claims that he was not served with Respondents' address and that he protested and sought to be allowed to react to the Respondents' address (which he allegedly saw on the date of judgment) and was refused, thereby violating his right of fair hearing! Normally, both the appellate Court and the parties are bound by the Records of Appeal in any matter/question or issue that touches on the Appeal. This strange complaint of Appellant, on this issue, is outside the catchment of the Records of Appeal and appears to be wishful thinking of Appellant and/or some mischief, to discredit the judgment.
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By law, however, every judgment of a Court is expected to come to effect upon the delivery of the judgment, but the law also allows a window of 90 days, generally (except in election related matters), for a dissatisfied party to appeal (and that period can even be extended, upon application by the person seeking to appeal). Thus, even the winning party is expected to exercise some restraint, during that period of 90 days, and must not dissipate the res or act to frustrate the aggrieved party from exercising his right of appeal. - Mbaba JCA. Okpara v. Anozie (2020)
As earlier stated, where there is an appeal against the decision of a Court, the successful party therein is expected to exercise caution in victory, and no party is expected to take any step or action that will render the decision of the Appellate Court, nugatory, upon the determination of the appeal. That imposes a duty on every party and on the Court, to protect and preserve the res. - Mbaba JCA. Okpara v. Anozie (2020)
Of course, the law is trite, that mere production of document of title to land, is not conclusive proof of title, where the source of the title document or authority to issue same, is wanting in legitimacy. The Court is expected to scrutinize and evaluate the said document of title, to determine whether: (a) The document is genuine and valid; (b) It was duly executed, stamped and registered; (c) The grantor had the authority and capacity to make the grant; (d) The grantor, in fact, had what he purported to grant and (e) The document has the effect claimed by the holder of the document. - Mbaba JCA. Okpara v. Anozie (2020)
The end of this brief.
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