AJA v. AJA & ORS

CITATION: (2019) LPELR-46840(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON MONDAY, 28TH JANUARY, 2019Suit No: CA/OW/114/2016

Before Their Lordships:

AYOBODE OLUJIMI LOKULO-SODIPE Justice, Court of AppealRITA NOSAKHARE PEMU Justice, Court of AppealIBRAHIM ALI ANDENYANGTSO Justice, Court of Appeal

BetweenFRANKLIN AGBAEZE AJA - Appellant(s)

And1. CHIKA AJA2. OSUNDU AJA3. AGBAEZE AJA4. IFEANYI AJA

- Respondent(s)

RATIO DECIDENDI

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1. EVIDENCE - ESTOPPEL: Nature of estoppel andwhen a defence of proprietary estoppel will notstand"Estoppel is a rule that prevents a person to assertthe contrary of a fact, or state of things which heformerly asserted by words or conduct. Put inanother way, a person shall not be allowed to sayone thing at one time and the opposite at anothertime. Estoppel is based on equity and goodconscience, the object being to prevent fraud andensure justice between the parties, by promotingtransparency and good faith. MABAMIJE v. OTTO(2016) 13 NWLR (PT. 1529) Page 171 ratio 4.Proprietary estoppel was not pleaded by theAppellant. It is apparent that the Appellant did notprove the gift of the said land in dispute to him.There is no part of the land that was proved to havebeen transferred in implied by the deceased fatherof the Claimants/Respondents to the Appellant.The Appellant did not prove title to the land. Thedefence of proprietary estoppel raised by theAppellant holds no water. Let me reiterate that theAppellant who pleaded that his ownership of theland was as a result of a gift of same by theRespondents late father, failed woefully to prove byway of evidence, the gift. The date of the said giftwas not furnished; there was no evidence of the giftor transfer to him. In the circumstances, thedefence of proprietary estoppel cannot stand as youcannot put something on nothing MACFOY v. U. A.C."Per PEMU, J.C.A. (Pp. 18-19, Paras. C-D) - read incontext

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2. LIMITATION LAW - LIMITATION PERIOD: Whendoes time begin to run for the purpose of limitationlaw"For Purposes of the Limitation Law, time begins torun when the cause of action arose. In other words,when there exists a person who can sue andanother who can be sued. Moreso, when all thefacts have happened, which are material to beproved to entitle the Plaintiff to succeed. See DUZUv. YUNUSA (2010) 10 NWLR (PT. 1201); KANOSTATE HOUSE OF ASSEMBLY & ORS v. UMAR (2014)LPLER 24008."Per PEMU, J.C.A. (Pp. 8-9, Paras. F-A) -read in context

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RITA NOSAKHARE PEMU, J.C.A. (Delivering the

Leading Judgment): This appeal is against the judgment

of the Abia State High Court, sitting in Igbere delivered on

the 26th of November 2014, in suit No. HIE/11/2009. In the

judgment, judgment was entered in favour of the

Respondents.

SYNOPSIS OF FACTS

At the court below, the Respondents had claimed against

the Appellant the following vide writ of summons filed on

the 30th of March 2009 viz:

(a) A declaration of the court that the plaintiffs being

the sons of late AMOS AJA are entitled to the

ownership of their father property situate and lying at

Umuakpa Item Bende in the Bende Local Government

Area of Abia State and traditionally called “IGULA”

land and measuring approximately 100ft by 100ft (2

plots) and the duplex therein.

(b) An order of perpetual injunction restraining the

Defendant either by himself, his servants, agents or

privies from parading himself as the owner of the

property (duplex) situate at and lying at Umuakpa

Item Bende in the Bende Local Government Area of

Abia State and traditionally called “IGULA” land

measuring approximately 100ft by 100ft.

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(c) An order of perpetual injunction restraining the

Defendant either by himself, his servant, agents or

privies from alienating, mortgaging or disposing of

the property known as and called “IGULA” land and

the duplex therein –pages 1-2 of the Record of Appeal.

SYNOPSIS OF FACTS

The Plaintiffs/Respondents are the children of late AMOS

AJA AJA, while the Defendant/Appellant is the brother of

the Plaintiffs’ father.

By Deed of agreement dated 15th December 1973, between

AGBAM OKEREKE MBA OKEREKE and JOHN CHUKWU –

(all representing the Umuikwuagwu family of Umuakpa

Item) on the one part, and the deceased on the other part,

the deceased acquired two plots of land measuring 100ft by

100ft (2plots) traditionally called “IGULA” land situate and

lying at Obu-Ohuru Umuakpa Item in Abia State of Nigeria.

The Appellant signed as a witness for the Plaintiffs late

father. As at the time of the transaction, the Appellant was

residing in the deceased house at Aba and also in the

village.

The deceased built a duplex on the said IGULA land and in

order to encourage the Appellant, he told him to go

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live in the duplex. But the Appellant has been parading

himself as the owner of the land “IGULA” as well as the

said duplex built on it. Furthermore, he has put the

building up for sale.

The Appellant is dissatisfied with the judgment of the Court

below and has appealed against it. Pursuant to the Practice

Direction of this Honourable Court, he filed a Notice of

Appeal on the 28th of January 2016 with five (5) Grounds of

Appeal.

The Appellant filed his brief of argument on the 30th of

October 2017. It is settled by Dr. C. O. Chijioke.

The Respondents’ brief of argument was filed on the 9th of

February 2018, but same was deemed filed on the 30th of

May 2018. It is settled by L. O. Oti Esq.

On the 6th day of November 2018, the parties adopted

their respective briefs of argument.

The Appellants distilled three (3) issues for determination

from the Grounds of Appeal. They are: -

1. WHETHER THE ACTION WAS NOT STATUTE

BARRED.

2. WHETHER THE TRIAL COURT WAS RIGHT TO

HAVE HELD THAT THERE WAS NO TRANSFER OF

TITLE BY THE CLAIMANTS’ FATHER TO THE

RESPONDENT/APPELLANT.

3. WHETHER THE TRIAL COURT WAS RIGHT NOT

TO

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H A V E C O N S I D E R E D T H E D E F E N C E O F

PROPRIETORY ESTOPPEL RAISED BY THE

DEFENDANT/APPELLANT.

The Respondents proffered three (3) issues for

determination. They are: -

1. WHETHER THE ACTION WAS NOT STATUTE

BARRED.

2. WHETHER THE TRIAL COURT WAS RIGHT TO

HAVE HELD THAT THERE WAS NO TRANSFER OF

TITLE BY THE CLAIMANTS’ FATHER TO THE

RESPONDENT/APPELLANT.

3. WHETHER THE TRIAL COURT WAS RIGHT NOT

TO HAVE CONSIDERED THE DEFENCE OF

PROPRIETORY ESTOPPEL RAISED BY THE

DEFENDANT/APPELLANT.

The Respondents’ issues for determination is an adoption of

the Appellant’s issues for determination, and I shall

consider this appeal based on the Appellant’s issues for

determination.

ISSUE NO 1.

The Appellant submits that the suit, the subject matter of

this appeal is statute barred and that the Court below

should have held so. Submits that the cause of action

pertain to land, and by virtue of the Provisions of Section 3

of the Limitation Law Cap 114, Abia State Laws of Abia

State Vol. 5, 2005, the action is statute barred. He submits

that the Respondents had made a case that the Appellant

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paraded

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himself as the owner of the house in issue and put up the

building for sale. No date was given when the Defendant

started laying claim to the house or put it up for sale. The

1st Claimant alleged that a cousin told him that prospective

buyers were coming to inspect the house in February 2009.

But that the Claimant have been unable to show that the

house was built by their father and let to the Appellant to

live temporarily.

That where the statement of claim does not provide a guide

to the determination of when a cause of action accrued,

recourse would be had to the evidence led by the parties at

the tr ia l , c i t ing U.T.A. FRENCH AIRLINES V.

WILLIAMS (2000) 14 NWLR (Pt 687) 271, AMADI v.

MIL. ADM. IMO STATE (2000) 14 NWLR (Pt 625) 328.

He submits that parties were in agreement that the two

buildings on the land were erected in 1983 and 1986

respectively. Therefore, he submits, the cause of action

arose in 1983 and the Claimants became aware of it in

1983. That the suit, the subject matter of this appeal was

instituted on the 30th of March 2009, a period of twenty-six

years after the Appellant built the house in issue. That the

action became statute barred MUEMUE v. GAJI (2001) 2

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NWLR (PT. 697) 289; AJAYI v. ADEBIYI (2011) 11.

NWLR (PT. 1310) 137 @ 169 – 170.

ISSUE NO 2

He submits that there is evidence by the Appellant and his

witnesses that the father of the Respondents transferred

title to him. That this piece of evidence is not cogent

enough to contradict the documentary evidence produced

by the Respondents, as documentary evidence is always

preferred to oral evidence. Submits that the Court below

misconstrued Exhibit A” as a title deed and relied heavily

on it, thereby arriving at a wrong legal conclusion.

That the said document, not having been registered as

required by Section 15 of the Lands Instrument

Registration Law, Cap 108, Laws of Abia State 2005, is

incapable of conveying title to land. Not having been

registered, it is only a purchase receipt, citing

TEWOGBADE v. OBADINA (1994) 4 NWLR (PT. 338)

326 @ 356; IKONNE v. WACHUKWU (1991) 2 NWLR

(PT. 172) 214.

That where parties have embodied the terms of their

agreement in a written document, extrinsic oral evidence is

not admissible to add to, vary, subtract from, or contradict

the contents of that document. That this does not prohibit

an

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opposing party from cross examining on the documents, or

adducing documentary evidence to contradict and render

such document unreliable. The rule is concerned with a

party who is privy to the document, he submits citing

KOIKI v. MAGNUSSON (1999) 8 NWLR (PT. 615) 491;

INWELEGBU EZEANI (1999) 12 NWLR (PT. 630) 266.

Submits that the Appellant did not just adduce oral

evidence but documentary evidence to show that Exhibit

“A” is no longer subsisting. Exhibit “A” has been

superceded by Exhibits “D” and “E-E7” tendered by the

Appellant, and admitted without objection. Submits that

these exhibits should have been ascribed weight over and

above Exhibit “A” by the Court.

Submits that unchallenged evidence amounts to admission

and must be acted upon by the Court – citing F.C.D.A. v.

NZELU.

He submits that when Exhibits “D” and “E-E7” are

considered together with the viva voce evidence of the

Appellant, on the gift of the land to him, his introduction to

the original land owner, and the overt acts of the Claimants

father of allowing him to build on the land,

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there is no doubt that the Appellant led cogent and credible

evidence establishing that the Claimants’ father transferred

the land to him, who is the only brother.

He submits that the parties transaction was customary in

nature, and that there is no need for strict application of

English Rules.

He submits that documentary evidence is unknown to

native law and custom citing OLUBODUN v. LAWAL

(2008) ALL FWLR (PT. 434) 1468; OGUNMUYIWA v.

ODUKOYA (2009) ALL FWLR (PT. 454) 1526.

ISSUE NO 3.

It is the Appellants contention that he raised the defence of

proprietary estoppel in his statement of defence and indeed

led evidence to that effect. That the Court below failed to

consider this defence, thereby erring in law. That there was

nothing to debunk this defence such as trespass, or want of

mistaken belief, as such was not considered at all by the

Court below.

RESOLUTION OF ISSUES

ISSUE NO 1.

For Purposes of the Limitation Law, time begins to run

when the cause of action arose. In other words, when there

exists a person who can sue and another who can be sued.

Moreso, when all the facts have happened, which are

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material to be proved to entitle the Plaintiff to succeed. See

DUZU v. YUNUSA (2010) 10 NWLR (PT. 1201); KANO

STATE HOUSE OF ASSEMBLY & ORS v. UMAR (2014)

LPLER 24008.

The question which becomes inevitable in considering this

issue is when did the cause of action arise in the suit, the

subject matter of this appeal?

The Claimants/Respondents were the Plaintiffs in the Court

below.

In paragraphs 9, 10, 11 and 12 of the further amended

statement of claim filed on the 8th of July 2014 – Pages

66-68 of the Record of Appeal. It has this to say:-

PARAGRAPH 9

“The Defendant recently has been parading himself as

the owner of the land known as “IGULA” land situate

at Umuakpa together with the duplex therein and has

gone further to put up the building for sale”

PARAGRAPH 10

“That agents and properties buyers have been visiting

the building for inspection”

PARAGRAPH 11

“That 1st Claimant was called recently by a cousin of

his from the village that prospective buyers and

agents will visit the building on a particular day in

February

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2009 and the 1st Claimant on the said day being

Saturday was on ground to see agent with the

properties buyers.

PARAGRAPH 12

“The 1st Claimant told the properties buyers that they

were purchasing at their own risk just because the

Defendant is not the owner of the land and building.

The properties buyer walked away when the 1st

Claimant produced evidence to the effect”.

In paragraph 10 of the Defendants’ written statement on

oath he deposed thus: -

“That I have not put up my house for sale and do not

intend doing so. I was in the cause of my business

travelling overseas…”

In paragraphs 12 and 13 of the Respondents’ amended

statement of Defence filed in the 20th of November 2013,

he averred thus:

PARAGRAPH 12

“In further answer, the Defendant states that he has

not put up his house for sale and does not intend

doing so. The Defendant shall at the trial lead

evidence to show that he was an importer as at the

time he commenced the building and that his

business took him outside the shores of Nigeria…”

PARAGRAPH 13

“The Defendant denies paragraphs 10, 11 and 12 of

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the statement of claim and shall at the trial put the

Plaintiff to the strictest proof thereof. In answering

the Defendant states’ that no sane human being

would sell his place of abode in the village, especially

in view of the fact that the duplex is worth more than

N30,00,000.00 (Thirty Million Naira)…”

The Limitation Law of Abia State 1999 Cap. 24 Vol. ii Law

of Abia State of Nigeria, provides for a Limitation period of

ten years.

It is apparent that the cause of action in the suit, the

subject matter of this appeal, arose in 2009, when the

Appellant alleged that the Respondent attempted to sell the

land in dispute – This suit was instituted on the 30th of

March 2009.

The suit cannot therefore be said to be statute bar and to

say so, is a misconception.

This issue is resolved in favour of the Respondents and

against the Appellant.

ISSUE NO 2.

The Respondents had tendered Exhibit A – Deed of

Agreement made on 15/12/1973 between one AGBAM

OKEREKE, MBAM OKEREKE, JOHN CHUKWU, all of

Umuakpa Item acting for themselves as accredited

representatives of Umuikwugwu family on the one part and

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AMOS AJA AJA on the other part. It is the 1st Claimant’s

claim that Exhibit “A” was handed over to him by AMOS

AJA AJA (his father) in his lifetime. On the part of the

Appellant, Exhibits A-H were tendered by him.

A painstaking look at Exhibit, “D” it shows that Exhibit “D”

– A building plan in respect of the Duplex which the

Appellant allegedly said that he built on the land is not

dated nor signed. The legal implication of this is that it is of

no probative use or value.

The Appellant did concede that the father of the

Respondents owned the land in dispute. He sold a portion

to Barrister Eke Onuoha but transferred the remaining

portion to the Appellant by way of a gift.

The question is whether the Appellant has been able to

establish by credible and cogent evidence that the gift was

properly disposed of. The Appellant said that the gift was

given to him, but who were the witnesses to that

transaction?

Exhibit “E” – “E7” are receipts which are more than 20

years old.

I had observed that Exhibit “D” was neither signed nor

dated;

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there is no evidence by the Appellant of the gift of the land

to him, nor eye witnesses to his introduction to the original

land owner. The Appellant has urged in paragraph 3.2.6 of

his brief of argument that the entire transaction was

customary in nature and that there is no need for strict

application of English Rules. He further urges that long and

exclusive possession is recognized by law as a way of

proving ownership to land without the necessity of

producing document of title.

The facts deposed to by the Appellant in his written

statement on oath dated 15th June 2010 is instructive.

I shall reproduce paragraphs 10, 11, 12, 13, 14, 15, 16

thereof: -

10. I was living in one room giving to me by the

Claimants’ father as my elder brother and the

claimants’ fathers’ only brother, from 1970 to 1978

but was fending for myself as I was already doing my

own business at that time. I was particularly trading

in “fancy clothes” at Kent Street Aba; where I hired a

lock up shop. I shall at the trial rely on some of my

rent from 1978 to 1983 to show that I was no longer

living with the Claimants’ father as at 1978. I will

recognize the receipts when shown to me.

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11. The Claimants are aware of this fact especially as

I took the 3rd Claimant to live with me at No. 6

Igboukwu Street, when the 3rd Claimant was barely

six years old and I was responsible for the education

of the 3rd Claimant up to Secondary School level. I

sponsored the 1st Claimant’s Secondary School

Education after which I sent the 1st Claimant to

Michigan in the United States of America for further

studies. I kept records of the School fees I paid for

the 1st Claimant. When the 1st Claimant stopped

attending to his studies, I withdrew my sponsorship. I

can recognize the said records and correspondences

if shown to me.

12. The said Claimants’ father intended erecting a

two storey building on the said land and had already

registered the building plan before selling the land to

me. The town planning authority refused to substitute

my elder brother’s name with my name on the said

building plan, and as such I had to build the house

with the building plan already registered by my elder

brother since he transferred the originally copies of

the plan to me. I will recognize the building plan as

well

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as the title deed to the piece of land which was also

transferred to me, if I see them.

13. The said one room later became insufficient to

accommodate my household comprising myself, my

wife, my house boy and housemaid, I pleaded with my

elder brother (The Claimants’ father) to allow me

occupy two rooms at No. 11 Eme Street by Port

Harcourt road, Aba, which was a rooming house

belonging to my said elder brother, but he refused

and therefore I sought and found an alternative

accommodation, a three bedroom flat at No. 6

Igboukwu Avenue by No. 149 Port Harcourt Road,

Aba, where I stayed until I completed the said two-

story building. When my business started thriving, I

sought to commence a two storey building on a piece

of land I bought at the hinterland of the Port

Harcourt road area of Aba but had to first consult

with my elder brother (Claimants’ father). Claimants’

father objected to it on security ground contending

that the area where the land was situate was still

undeveloped, he suggested that I buy his remaining

portion of land covered by a deed of lease registered

as No. 100 at page 100 in volume 789 at the lands

registry at Enugu (Now

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Umuahia). I shall at the trial rely on the receipt in

respect of the piece of land then situated in the

hinterland of Port Harcourt Road area of Aba, which

is an unregistered deed of sub lease dated the 15th

day of March, 1978 and prepared by S. M. OJUKWU

ESQ. I shall also rely on a deed of lease dated 25th

day of January, 1978 and Registered as No. 77 at page

77 in volume 175 of the Lands Registry in the office

at Owerri (Now Umuahia) covering another piece of

land which I bought the same year. I can recognize

the documents when shown to me.

14. Upon assuming possession of the land I started

paying annual rents to the original landowners and

also paid property rates to the Government. The

receipts of these payments shall be relied upon at the

trial and I will recognize them if shown to me.

15. I caused a lawyer relation of ours, Barrister S. K.

AJA, to prepare an Irrevocable Power of attorney,

which upon presentation to the Claimants’ father, he

refused to sign stating that there was no need for a

fresh document since he had transferred both the

land and his title deeds to me and that I, being his

only blood brother should not entertain fear of

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any kind. It was about a month of transferring the

original copies of the title deed to the piece of land to

me that the Claimants’ father transferred the

building plan to me after I told him that I wanted to

erect a two storey building on the land.

16.I reported the Claimants’ father refusal to sign the

document to both the said lawyer and my elder sister,

who asked me not to worry since my brother had no

fraudulent intentions. I did not imagine that any of

my nephews would rise up one day to challenge my

title over the piece of land in issue, especially given

my cordial relationship with the Claimants’ father and

the fact that all the Claimants benefited from me.

The following facts flow from those paragraphs. They are,

firstly, that the Appellant had always been comfortable and

was not in dire need of help. Secondly, (words from his lips)

he did state that he had helped the Claimant financially and

even sent the 1st Respondent out of the country to study.

Thirdly, Exhibit A was not signed by the deceased as he

refused to. Fourthly there are no witnesses to any of the

transaction he had with the Claimants (Respondents)

father.

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There is, in my view no cogent material to establish that

there was any gift given to the Appellant by the

Respondents’ father. Date of gift was not stated. Neither is

any proof of title transferred to the Appellant by the

deceased Amos Aja Aja.

The Court below was right to have held that there was no

transfer of title by the Claimants’ father to the Appellant.

This issue is resolved in favour of the Respondents and

against the Appellant.

ISSUE NO 3.

Estoppel is a rule that prevents a person to assert the

contrary of a fact, or state of things which he formerly

asserted by words or conduct. Put in another way, a person

shall not be allowed to say one thing at one time and the

opposite at another time. Estoppel is based on equity and

good conscience, the object being to prevent fraud and

ensure justice between the parties, by promoting

transparency and good faith. MABAMIJE v. OTTO (2016)

13 NWLR (PT. 1529) Page 171 ratio 4.

Proprietary estoppel was not pleaded by the Appellant. It is

apparent that the Appellant did not prove the gift of the

said land in dispute to him. There is no part of the land that

was

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proved to have been transferred in implied by the deceased

father of the Claimants/Respondents to the Appellant.

The Appellant did not prove title to the land. The defence of

proprietary estoppel raised by the Appellant holds no

water. Let me reiterate that the Appellant who pleaded that

his ownership of the land was as a result of a gift of same

by the Respondents late father, failed woefully to prove by

way of evidence, the gift. The date of the said gift was not

furnished; there was no evidence of the gift or transfer to

him.

In the circumstances, the defence of proprietary estoppel

cannot stand as you cannot put something on nothing

MACFOY v. U. A. C.

This issue is resolved in favour of the Respondents and

against the Appellant.

The Appeal fails and same is hereby dismissed.

The judgment of the Abia State High Court, holden at

Igbere in suit No. HIG/11/2009, delivered on the 26th of

November 2014 is hereby affirmed.

Parties to bear their respective costs, as this matter is a

family issue.

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AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had read

before now, the leading judgment just delivered by my

learned brother Rita N. Pemu, JCA.

I agree with his opinion and reasoning. I also dismiss the

appeal. The decision of the Court below is hereby affirmed.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the

privilege of reading before now the judgment just delivered

by my learned brother HON. JUSTICE R. N. PEMU, JCA. I

completely agree with her reasoning and conclusions. I

have nothing more to add. I adopt her orders as mine.

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Appearances:

Dr. C.O. Chijioke, Esq. For Appellant(s)

L. O. Oti, Esq. For Respondent(s)

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