➥ CASE SUMMARY OF:
Thomas Awaogbo & Ors. v. Samuel O. Chukwu Eze (1995) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.69/1991
➥ JUDGEMENT DELIVERED ON:
Friday, the 20th day of January, 1995
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ WHERE FACTS PROPERLY APPRAISED, COURT OF APPEAL SHOULD NOT SUBSTITUTE VIEWS FOR TRIAL COURT
It is settled that where a court of trial unquestionably evaluates the evidence and appraises the facts it is not the business of a Court of Appeal to substitute its own views for the trial court. It is equally settled that a Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performance although such findings of fact or the inferences drawn from them may be questioned in certain circumstances (See for example Akinola v. Fatoyimbo Oluwo & 0rs ( 1962) 1 SCNLR 352: (1962) 1 All NLR 244: Fabumiyi & 0rs. V. Obaje & Anor (1968) NMLR 242: Fatoyinbo Williams (1956) SCNLR 274: (1956) 1 FSC 87. — Kutigi, JSC.
⦿ UNREGISTERED INSTRUMENT CAN BE USED TO AFFIRM EQUITABLE TITLE
I agree with the learned trial Judge that Exhibit 3 is an instrument within the meaning of section 2 of the Land Instrument Registration Law and that having regard to the mandatory provisions of section 15 of the said law no registrable instrument which has not been registered should be given in evidence. But it was probably too wide a statement for him to have concluded that “no title” could be based on Exhibit 3. Certainly not a legal title but equitable title or interest, yes. In the case of Okoye v. Dumez Nigeria Ltd & Anor (1985) 1 NWLR (Pt.4) 783: (1985) 6 S.C. 3 Bello. J.S.C. (as he then was) delivering the lead judgment said on page 12 thus: “It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent: Savage v. Sarrough (1937) 13 NLR 141: Ogunbambi v. Abowab (1951) 13 WACA 222: Fakoya v. St, Paul’ s Church, Shagamu (1966) 1 All NLR 74: Oni v. Arimoro (1973) 3 S.C. 163; Bucknor-Maclean v. Inlaks ( 1980) 8-11 S.C. 1 and Obijuru v. Ozims S.C. 48/1984 delivered on 4th April 1985 unreported yet. It follows from the foregoing that the 1st respondent’s lease under Exhibits E and F was as good as if the instruments had been registered.” — Kutigi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
G.I. Ofodile, Esq.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The plaintiff’s case in short was that in 1959 the defendants made a customary grant of a large tract of virgin bush called “Offia Okali” verged green in the Plan L/D 556 (Exh. 2 in the proceedings) to him for purposes of exploitation and cultivation. The consideration for the grant under native law and custom was a lump sum payment of N 140.00 plus a reserved tribute of N20.00 payable yearly from the ninth year of occupation. He claimed that the customary grant was made in two plots and that the additional portion granted in 1964 for a further consideration of N60.00 covered the area edged blue also in his Survey Plan No. L/D 556. He thereafter took effective control and proceeded to deforest the thick bush and developed it for modern farming at great expense.
When the land Use Act came into force in 1978 the community “conspired” with the Ikwo Local Government to misconstrue the Act as automatically divesting the plaintiff of his land and revesting same in the community and the Local Government. The Ikwo local Government in July 1979 issued a Public Notice No. 20 of 1979 (Exh. 8) prohibiting the plaintiff and the entire community from further entry into the land. The local Government then proceeded to issue temporary occupation licenses to prospective farmers wishing to cultivate the “Offia Okaji” on payment to the council of N 1.25 per hectare, later however by another public notice No. 23 of 1979 (Exh. 9) the Public Notice No. 20 of 1979 (Exh. 8) was rescinded. Thereafter the defendants acting in concert forcibly entered and took over control and management of Offia Okaji farmlands belonging to the plaintiff.
In answer to the plaintiffs claim, the defendants said that the customary grant was for a specific terms of eight years and thereafter from year to year. They said the plaintiff had defaulted in the payment of the reserved annual rent and that the community lawfully terminated the customary grant. They relied on and tendered an agreement dated the 15th day of October, 1959 made between the parties which was received in evidence as Erxhibit 3. They denied making another grant to the plaintiff in 1964. They admitted going on to the plaintiffs land but contended again that this time they were put there by the Ikwo local Government on payment of fees of N1.25 per hectare and that the plaintiff was not in possession to have entitled him to sue for trespass.
The plaintiff’s claim against the defendants jointly and severally as contained in para. 28 of his statement of claim are:- “(I) N100,000.00 general damages for trespass to that piece or parcel of land known as Offia Okaji, shown verged pink on Survey Plan No. L/D 556. (2) An injunction restraining the defendants, their servants or agents from entering into or committing any further acts of trespass to the said plot of land shown verged pink on Survey Plan No. L/D 556.”
In a reserved judgment delivered on the 30th day of July 1982, the learned trial Judge, Adimora, J. after carefully reviewing the evidence adduced before him found in favour of the plaintiff.
The Defendant appealed to the Court of Appeal which Appeal was dismissed. This is a further appeal by the Defendant (now Appellant).
➥ ISSUE(S) & RESOLUTION(S)
I. What was the exact nature and interest in and over the land in dispute granted to the father of the respondent: Was it customary tenancy for indefinite period or was it possessory right or mere licence personal to respondent’s father and not a hereditament?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE TRIAL COURT & COURT OF APPEAL REACHED A CONCURRENT FINDING
“The learned trial Judge in his judgment on page 48 of the record had this to say:- ‘The defendants have contended that the length of the customary tenancy granted was only eight years and that thereafter the relationship metamorphosed to a yearly tenancy. From the evidence before me which I accepted it cannot be seriously said that a maximum duration of eight years was intended by the parties. Eight years seem to be the period allowed for deforestation of the thick virgin bush before effective farming could commence for the tenant to pay his annual tributes… I find as a fact that the grant was for a long indefinite period, not for any specific period. They had intended that the plaintiff should settle and work on the land as long as he wished and kept to his side of the bargain, with an option to give up the land and return to his home, if he so wished. The bush was regarded as evil and uninhabitable, hence the landlords sold an adjacent plot to the plaintiff where he established a permanent residence.’ He had earlier found on page 41 of the judgment: ‘I was very much impressed by the evidence of the plaintiff and his two witnesses and I have no hesitation in accepting their version of the incident as a true account of what transpired between the plaintiff and the defendants as regards the matters in controversy.’”
“The Court of Appeal had no difficulty in agreeing with the above findings of fact by the learned trial Judge. I agree with them too.”
“The answer to issue (1) therefore is that clearly the respondent is a customary tenant of the appellants for an indefinite period subject only to good conduct to avoid forfeiture.”
II. Whether the act or acts done by Ikwo Local Government Council in relation to the land in dispute is covered by Sections 6(3), 28(3) & 50 of the Land Use Act 1978?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE LOCAL GOVERNMENT HAS NOT SHOWN WHAT PUBLIC PURPOSE THE LAND WILL BE USED FOR
“I have read through the provisions of section 6(1) – (7) of the Act. They deal with powers of a Local Government in relation to land not in urban area. And section 6(3) makes it lawful for a Local Government to enter upon, use and occupy any land within its area of jurisdiction for “public purposes”. There was no evidence that Offia Okaji farmland of respondent was required or acquired for any public purpose. The matter should have ended here in my view. But the Court of Appeal proceeded to consider the provisions of sections 28 & 50 of the Act and said:- ‘The Land Use Act 1978 has no doubt vested all lands in the Government, but to expropriate any person in possession of any lands, the government must act within the provisions of the Land Use Act 1978. I have seen Exhibits 8 & 9 in this matter … nothing in Exhibit 8 has shown that any action of the Ikwo Local Government in relation to this land. was pursuant to the said Land Use Act. For example the Local Government did not take possession of the land for any of the specified needs which are described as “public purposes” in the Act. Exhibit 9 is of the same invalid nature as Exhibit 8 and has not conformed with what the Land Use Act 1978 provides shall govern the activities of a Local Government in its dealing with lands within its jurisdiction. Where such is the case, the act of the Local Government would, in my view, become void and would not operate to vest any person with authority to deal with land as opposed to the interest of a present and current occupier or possessor, of such land… And until the Ikwo Local Government acts under section 6(3) and section 28(3) it cannot be said that the respondent has been dispossessed of the land in his possession, and until then the remedies in section 6 sub-sections 5, 6 & 7 do not come into operation.’ I agree entirely.”
III. The appellant contend that the learned trial Judge was wrong to have restrained them by injunction to the whole area of land “Offia Okaji” delineated and verged Pink on Survey Plan No. L/D 556 – Exhibit 2 – when they only admitted granting the area verged Green to the respondent in 1959 and denied making any grant to him in respect of the area verged Blue in 1964?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE JUDGEMENT IS IN RESPECT OF THE ENTIRE LAND CLAIMED
“It has been demonstrated above that the respondent in para. 3 of his statement of claim described the Offia Okaji land in dispute as shown verged pink in Exhihit 2. It is the only Survey Plan in the suit. And by para 4 of their Statement of Defence the appellants unreservedly admitted the said para 3 of the Statement of Claim. Evidence led at the trial related to the area of land verged pink claimed by the appellant and the judgment was in respect of the entire land claimed. And to make matters worse the appellants had their cultivated rice farms all over the land in dispute and not just the area verged green on the plan. Since the judgment is in respect of the entire land claimed and not part of it. It is only common sense that the Order of Injunction must relate to the entire land won and not part therefore. The learned trial Judge was therefore right to have so ordered and although the Court of Appeal did not advert to the point in its judgment, no harm or a miscarriage of justice was suffered by the appellants as a result of that omission.”
IV. Whether the learned trial Judge in the High Court and the learned Justices of the Court of Appeal correctly and sufficiently appraised and evaluated the evidence before them before they came to concurrent judgment?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE
“The appellants however failed to indicate how and what approach adopted by the Court of Appeal was not correct. As for the trial court the only documentary evidence they alleged was not considered was Exhibit 6A where they said the respondent admitted that the grant to him was for eight years only, and Exh. 7 which they claimed justified the action taken by the Ikwo Local Government in declaring the land in dispute a prohibited area vide Public Notice (Exhibit 8). There is no doubt that in Exhibit 6A paras. 1 & 2, the respondent stated that the tenancy was to last for eight years the essence of which was to enable him clear and deforest the land and render it cultivable. He went on to say that at the end of that period the appellants, people of Okpera, opted to sell the land to him wholesale and that the people of Okpera signed and the settled amount was paid to them. It appears, the appellants want to play a game of chess here. They want to claim that the lease was for eight years but want to deny in the same Exh. 6A selling the land to the plaintiff at the end of the term and collecting money from him. That was not what their Exhibit 3 was about. It was also not borne out by the credible evidence accepted by the learned trial Judge. The appellants also in their pleadings and evidence before the Court said the respondent paid them annual rent as provided in Exh. 3 up to 1974 and thereafter stopped payment thereby forfeiting his lease. They also claimed to have been put into possession by Ikwo Local Government. So I ask again – which is which No doubt they were confused. This contention has no merit. As for the part played by the Ikwo Local Government in issuing the Public Notices (Exhibits 8 & 9) it suffices to say in the words of the learned trial Judge that:- “The Ikwo Local Government had no right, statutory or common law, to abolish the customary law agreement between the parties nor can it authorize an act of tresspass.” “The present arrangement is not intended to deprive either the Okpera Community or Mr. Chukwu Eze of their customary or statutory right of occupancy…” And para. 2 of Exhibit 9 also reads:- “All persons who have officially applied for land and who have paid the fee of N1.25 per hectare as specified are hereby advised to recover their payments from the Local Government Treasury.” I am clearly of the view that the two lower courts properly considered the evidence, documentary and otherwise, placed before them and rightly came to the conclusion which they did.”
“It is hereby dismissed with no order as to costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)