Prince Ngene v. Chike Igbo & Anor

I have read before now the lead judgment of my learned brother Ogundare JSC and I agree with his reasoning and conclusion that the appeal should partially succeed. For the same reasoning contained in the lead judgment. I also partially allow the appeal as regards the plaintiffs’ claim for title to the land in dispute and set aside the judgment of the court below granting title to them. The defendant’s appeal against the claim in trespass and injunction is dismissed. I abide by the consequential order as to costs.

Having been privileged to read in draft form before now the judgment of my learned brother Ogundare. J.S.C just delivered, I am in complete agreement with him that the appeal partly succeeds; it is otherwise accordingly dismissed for lacking in substance.
I wish to expatiate briefly on the case as follows:
By the Court of Appeal granting the Plaintiffs/Respondents’ the first of his three relief’s as outlined in paragraph 20 of the Amended Statement of Claim. to wit:
“(a)     A declaration that the plaintiff is entitled to the right of Occupancy to the parcel of land situate at Onuagu. Ogui Renewal Layout, Enugu, as is more particularly shown and verged blue in plan No. 1513/77 filed with the Statement of Claim’
that Court, in my view, ostensibly founded its decision on the assertions contained in paragraphs 3, 4 and 5 of Respondent’s Amended Statement of Claim thereof in which it was averred as follows:-
“3.     The land in dispute in this case is known and called “Onuagu” situate at Ogui Urban Area, Enugu, otherwise known as Ogui Cenewal Layout, and is more accurately and particularly delineated on Survey Plan No.1513/77, filed with this Statement of Claim and therein verged yellow. The said land in dispute at all material times to this case is the bonafide property of the plaintiff. The total area of plaintiffs land is verged blue on the said plan.
4.    The land in dispute originally belonged to one Ugwu Mba who together with his two sons Nnamani Ugwu Mba, and Ngwu Ugwu Mba granted the Same under Native Law and Custom to one D.O.C. Nwankowo for farming in June, 1951. The said grant was evidence in writing by a Memorandum dated 9th June, 1951 and duly signed by the said parties.
5.     Subsequently, on or about the 12th day of April, 1961 after the death of the aforesaid Nwamani Ugwu Mba, one Ngwu Ugwu Mba as the head of the family of the deceased Nnamani Ugwu Mba formally conveyed the land in dispute to Mr. D.O.C. Nwankwo.” (italics is mine for comments anon.)
The appellant as Defendant joined issues with the Respondent in paragraphs 4, 5 and 6 respectively of their Amended Statement of Defence.

P.9

In his Amended Statement of Defence the issues joined by the Appellant took the following form:-
(a)     That the land never belonged to Ugwu Mba.
(b)     That Ugwu Mba, Nnamani Ugwu Mba had no right to sell to D.O.C. Nwankwo.
(c)     That Ugwu Mba never married nor had sons.
(d)     That Nnamani Ugwu Mba, and Ugwu Mba were illiterates.
(e)    That both Nnamani Ugwu Mba, and Ugwu Mba belonged to UMUNNAMALUM family of which LAWRENCE MBA is the head, and
(f)     The nullity or forgery of the conveyance vide paragraph 4, 5, 6 and 7 of the Statement of Defence.
Evidence was led by both parties following strictly pleadings. The learned trial Judge P.K. Nwokedi. J. (as he then was) found for the Respondent in trespass and injunction, while dismissing his claim for title by holding inter alia as follows:-
“The Plaintiff predicates his title to the land in dispute on his deed of assignment of lease dated 10th August. 1977, and registered as No. 41 at page 41 in Volume 958 of the Lands Registry, Enugu Exhibit 4. This assignment was granted to him by PW2. The necessary point to resolve is whether the PW2. had any interest legal or equitable to assign. The title of PW2 is stated to be founded on Exh. 2. According to the PW2. he acquired his title by two stages. In 1951, he obtained a farming grant of the said land from the original owner, “one Ugwu Mba, who together with his two sons Nnamani Ugwu Mba, and Ngwu Mba granted the same under Native Law and Custom to one D.O.C. Nwankwo for farming in June, 1951” – See paragraph 4 of the Statement of Claim. The said customary grant was stated to have been later reduced into writing. The document in question is attached to Exhibit 2. There are many things unacceptable as regards the said (sic) dated 9th June, 1951, attached to Exhibit 2. First, it is not an agreement between Ugwu Mba, are alleged original owner of the land and the PW.2. Rather, it is an agreement between the son of the said original owner, Nnamani Ugwu and the PW.2. Though the document seems thumb-printed by the said Ugwu Mba and his second son Ngwu Ugwu Mba, the capacity in which they were executing the agreement was not given. Since they are not stated to be parties to the agreement, one can only surmise that they were witnesses. There is no mention in the said document of any customary grant of which the document was the evidence thereof. The document was not witnessing anything. It was an outright sale of the land intended to be conveyed by the said document subject to the payment of a rent charge.

P.10

The piece of land in question was stated to have been “sold” and subject to the yearly rent reserved the land was to “belong. To the PW2, “indefinitely”. The instrument was therefore a registrable instrument under the Land Instruments Registration Law, then applicable in 1951. If the instrument had showed a preexisting title to the land in dispute as in the present allegation, founded in customary grant, it would have needed no registration. See Paul v. Laba (1937) All E. R. 737…………. 
In consequence of the above objections, the document was inadmissible as proof of title. The position is not altered by the fact that it was attached to Exhibit2, for it was abi inito inadmissible in evidence.” (Italics above is mine for emphasis).
When therefore in the light of the above extract the court below for the wrong reasons reversed the trial court on declaration of title, much against the grain of the pleading and evidence by holding, inter alia, that:-
“The law is settled that a plaintiff claiming that land was sold to him under native law and custom needs to prove the payment of the purchase price and show that the land was handed to him in the presence of witnesses. Nothing prevents the court from looking for evidence of possession in support of the fact that the land was handed over. See Cole v. Folami (1956) SCNLR 180; Anatodo Nwosu v. Chukwumanjo Udeaja (1990) 1 NWLR (part 125) 188 at 210. It seems to me that principle applies to this case. It is also not in doubt that there is evidence in support. In my view, even this fact alone would have in the circumstances of this case entitled the plaintiff to a declaration as to right of occupancy to the land in dispute. The trial court ought to have made that declaration………” and when it proceeded to conclude that”…….. At the same time I must say that the evidence is such that he was clearly wrong to have dismissed the said claim for a declaration. I allow the plaintiff’s cross-appeal and set aside the judgment of the lower court in respect thereof. The Plaintiff’s claim that he is entitled to the right of Occupancy over the land situate at. Onuagu Ogui Renewal Layout, Enugu, and more particularly verged blue in Plan No. MG. 1513/77 admitted as Exhibit 1 in this action succeeds.” It was, with due respect, wrong. This is because it is trite and settled law that in an action for a declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Nwankwo  Udegbe & Ors. v. Anachuna Nwokafor Woluchenu v. Gudi (1981) 5 SC291 at 309 and (1963) 1 All NLR 417 at 418 and Sunday Piaro v. Chief Wopnu Tenalo & Anor. (1976) 12 S.C. 31 at 37.

P.11

Be it noted that in this court an application was later made to substitute the original plaintiff/Respondent with the present two respondents. As this Court pointed out in the case of David Fabunmi v. Abigail Agbe (1985) 1 NWLR (part 2) 299, “where the evidence was that the Defendant was in possession of a disputed land, the onus was on the plaintiff to show that he had a better right to possession which was disturbed and unless that onus was discharged, the plaintiff cannot succeed by canvassing a title which was itself demonstrated to be defective”.
Thus, in the instant case where the facts are not dissimilar in that the appellant in the trial court as plaintiff is found to be in possession of a disputed land and his contesting opponent or opponents cannot show a better title, it is better to protect that possession by an order or injunction if asked for. As Obaseki, J.S.C., pointed out at pages 318 -319 in the Fabunmi case (supra)-
“The plaintiff cannot succeed by canvassing a title which itself was demonstrated to be defective. (See Aromire v. Awoyemi (1972) 1 All NLR. 101 at 112; Alhaji Adeshoye v. Siwoniku (1952) 14 WACA. 86 at 87. Lyell v. Kennedy (1882) 20 Ch. D. 484 at 490; Asher v. Whitlock (1865) L.R.I.Q.B.I. at 5.”
It must be realised that in law one of the recognised ways of proving title to land is by the production of valid documents evidencing grant. See Piaro v. Tenala (1976) 12 S.C. 31 at pages 37 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt67) 718. This, however does not mean that once a registered instrument is tendered in court, it automatically prove that the property sought to be conveyed by that instrument belongs to the grantee. For, as stated by Nwaemeka-Agu, J.S.C in Romaine v. Romanie (1992) 4 NWLR (Pt. 238) 650 (1992) 5 SCNJ. 25 at 36:
“But it does not mean that once a claimant produces when he claims to be an instrument of grant he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:-
(i)    Whether the document is genuine and valid;
(ii)    Whether it has been duly executed, stamped and registered;
(iii)    Whether the grantor has the capacity and authority to make the grant;
(iv)     Whether the grantor had in fact what he purported to grant, and
(v)     Whether it had the effect claimed by the holders of the instrument”.

P.12

In the instant case, the appellant sought to raise the above questions in respect of Exhibit 2 – the Deed of Conveyance made the 12th day of April, 1961 and in respect of which in paragraph 7A of his Amended Statement of Defence, he pleaded thus”-
“The Umunnamalum family in the Enugu High Court Suit No. E/7/78, instituted an action against the plaintiff challenging the grant made to him and claiming a declaration of title to the land in dispute, damages for trespass and injunction. The pleadings filed in the said case which is pending will be founded upon.”
The Claim, the Statement of Claim, the Motion for Extension or time to file a defence, the Statement of Defence were all put in as Exhibits 25 and 28 at pages 167-175 of the record. The purpose was ostensibly to enable the court make inquiry into a number of questions since the production of an instrument in court as hereinbefore stated, does not automatically prove that the property sought to be conveyed belongs to the grantee Romaine v. Romaine (supra). The Respondent gave evidence that would have enabled the Court decide  whether the document was genuine and valid and whether the grantor had the capacity and authority to make the grant. This is more so since earlier, the trial court had posed the following double-barreled question, to wit:-
“Court to Counsel – The plaintiff traces his root of title to Ngwu Ugwu Mba, and the Defendant traces his root or title to the land vested on Umunnamalum family from whom he derived his title. The issue involved is who actually has the lawful radical title to the land in dispute. Do you think that the family pleaded by the Defendant should be a party to this case, since they will be affected the result?” (Italics supplied).
Be it noted that the Umunnamalum family was not made a party to the case by being joined as a party to this action. In fact the learned trial Judge held that it was appellant’s invention. The principle of law stated by this court in Dosunmu v. Joto (1987) 4 NWLR (pt. 65) 297 – that where a plaintiff in a land case relies and proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove the vendor’s root of title as well unless, the title of his or her vendor has become an issue in the case. In such a case, those vendors will be joined as parties to prove or defend such title. The principle appears to me here to be pertinent and inevitable in view of the questions posed above in the instant case to which answers ought to be provided. See also Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393 at 395. If those questions were inquired into and resolved, it is my firm view that the court below would not have held that the instrument of grant automatically entitled the respondent declaration that the property which such an instrument purports to grant is its own.

P.13

Thus, when the learned trial judge held that the Native Law and Custom together with its incidence was not specifically pleaded or proved by evidence, he was perfectly right. Said he:
” Assuming that there is a previous grant by customary law which the 1957 agreement was evidencing, the said customary law together with its incident should have been specifically pleaded and evidence led to establish same. These have not been done in the
present case.”
When however. the Court of Appeal, held inter alia that:-
“This evidence of custom was in no way challenged. It was also not controverted that such a transaction took place. It is evidence supported by the pleading. It is by its nature not incredible. The trial court had no option than to have accepted it.’
It was palpably wrong since it is the law that a party who relies on a known root of title must prove that root or title and cannot rely on acts of possession in proof thereof. See Chief Oyelakin Balogun v. Oladosun Akanji (1988) 1 NWLR (Pt. 70) 301 and Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 at 183. Indeed, where as in the instant case, the root of title is defective as the respondent demonstrated before the trial court, the court ought to so find. See Okon Udufe v. Chief Akpan Aquisisua (1973) 3 E.C.S.L.R 404 at 405; and Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370; and C. F. Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.
As a matter of fact,in the instant case whereby their pleadings exchanged, the parties joined issues and evidence was led thereon, the trial court was obliged to compare the parties’ roots of title before determining which of them was entitled to its judgment. See Kaiyaola & Ors.v. Lasisi Egunla (1974) 12 S.C 55 at 60- 61; (1974) 1 All NLR (pt. 11) 426. While the trial court’s decision in this respect would appear to me to be unimpeachable, in my opinion erred, the court below when having condemned the trial court’s altitude, itself proceeded to do exactly what it said that court should not do. For instance, of Exhibit 2A. which it did not see to be able to make a comparison, it held at page 261 of the Record that:
“There was in fact no difference between Exhibit 2, and that Land Registry copy as I shall seek to demonstrate later ”

P.14

Since the trial court had allowed the Registrar of Deeds to take away the Registry Copy after it had been marked Exhibit 2A, the pronouncement of the Court below to the effect that:
“I would say, in the first place that it may well be that Ngwu Ugwu Mba, asked some one to write his name on the document ……………..”
in my view, amounts to mere speculation which a court is not entitled to make. See Panalpina world Transport Nig. Ltd. v. Wariboko (1975) 1 All NLR 24; (1975) 2 S.C 29. (Italics above is mine for emphasis).
It is for the above reasons and the fuller ones contained in the leading judgment of my learned brother Ogundare, J.S.C. that I allow the appeal in part only. I too will dismiss the appeal and make the same consequential orders inclusive of costs contained in the leading judgment.

 I had the privilege of reading in draft the judgment just delivered by my learned brother, Ogundare. J.S.C. and I entirely agree with the reasoning and conclusions therein.
On the strength of the pleadings as settled by the plaintiff, it is clear that the original owner of the land in dispute was one Ugwu Mba who in 1951 granted the same to one Nwankwo. By a deed of assignment, the said Nwankwo transferred his interest in the land to the plaintiff in 1997. There upon the said plaintiff went into possession thereof until he was disturbed by the defendant, hence this action. The original ownership of the land by the said Ugwu Mba was vigorously denied by the defendant in his statement of Defence.
It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how thin person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land is dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case. the defendant did not concede the ownership of the land by the plaintiffs grantors but expressly denied the same. See Mogaji & others v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR (pt.7) 393. 
In the present case the root or title or Ugwu Mba was neither pleaded nor did the plaintiff attempt to establish the said root of title. This without doubt, is fatal to the plaintiffs claim in declaration of title to the land in dispute and the appeal with regard to the grant of title to the plaintiff in respect of the land in dispute accordingly succeeds.

P.15

The appeal against the decision of the Court of Appeal in respect of damages for trespass and perpetual injunction is without substance as there is ample evidence on record, accepted by both courts below, in support of those two arms of the plaintiff’s claims.
In the final result, I too, allow this appeal on the issue of title to the land in dispute and set aside the judgment of the court below in that regard. The appeal against the award of damages for trespass and perpetual injunction against the defendant is without substance and is accordingly dismissed. I abide by the order for costs contained in the leading judgment with which 1 am in full agreement.

I have had the privilege of reading in draft the judgment just delivered by my learned brother, Ogundare J.S.C.. In the final analysis, this appeal turns on facts in respect of which there were concurrent findings by the High Court and the Court of Appeal. The Court below, in the face of well established authorities. was in error in holding that the plaintiff, who had not pleaded any root of title, has proved his title.
Where in a claim of declaration of title, the plaintiff reliefs on derivative title, he must not only plead and prove how he derived his title but also the title of the person from whom he claims to have derived title. It is only if such plaintiff can establish the title of the person from whom he claims, that the burden of proving title would have been discharged. These principles can be deduced from cases such as Thomas v. Holder 12 WACA 78, Chukwu v. Wuche (1976) 9-10 SC. 173 Oronsaye v. Osula (1976) 6 SC 21to mention but few cases.
In the often cited case of Idundun v. Okumagba (1976) 9/10 SC 277, in discussing the five ways in which ownership of land may be proved this court [per Fatayi-Willians J.S.C. (later CJN) ] said of proof of ownership by production of documents:
“Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved. unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case documents twenty years old or more at the date of the contract………”
However, that passage cannot be interpreted as dispensing with the need to prove the title of the person conveying the property where such title has not been admitted. When the root of a claimed derivative title is challenged, mere production of documents of title of the plaintiff may not suffice.

P.16

In the present case, omission by the plaintiff to plead the root of title of his alleged grantor is fatal to the claim, for a declaration of title, The claim for trespass and injunction is not dependent on the claim for declaration of title. Clear and exclusive possession is sufficient to sue in trespass. See Oluwi v. Eniola (1967) NWLR 339. The two courts below have found that the plaintiff was in prior exclusive possession. That is sufficient to justify the judgment against the defendant in trespass and for injunction.
In the result, for these reasons and the fuller reasons in the judgment of my learned brother Ogundare, J.S.C., I too would allow the appeal as regards the claim for declaration of title and dismissed it in regard to the claim for trespass and injunction. I abide by the consequential orders and order for costs made in the leading judgment.
Appeal allowed in part.

P.17