OLUA v. EMETU & ORS

CITATION: (2019) LPELR-46841(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON MONDAY, 28TH JANUARY, 2019Suit No: CA/OW/351/2017

Before Their Lordships:

THERESA NGOLIKA ORJI-ABADUA Justice, Court of AppealRITA NOSAKHARE PEMU Justice, Court of AppealITA GEORGE MBABA Justice, Court of Appeal

BetweenUKPAI KALU OLUA(For himself and as representing Ndifuaku paternalfamily of Ebem Ohafia except the 2nd-4thDefendants/Respondents)

- Appellant(s)

And1. ARUA KALU EMETU2. IDIKA KALU OLUA3. KALU ONWUKA OLUA4. IDIKA OLUA KALU

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - DECLARATORY RELIEF(S): Natureof a declaratory relief and what a plaintiff mustestablish to be entitled to same<span style="font-size: 12px;">"On principlesgoverning the grant of declaratory reliefs, it isthat declaratory reliefs are granted at thediscretion of the Court. All relevant facts thatcould affect the withholding of the discretion ofthe Court to make the declaration must beproperly canvassed and placed before the Courtfor consideration. When a litigant claimsdeclaratory reliefs, he does no more than toinvite the Court to declare what the law is on theissue. Whatever the Court of law may say inacceding to that invitation is no executory,indeed the grant of such a relief is discretionary,therefore a Plaintiff who intends to have anenforceable legal right from a declaratoryjudgment must in addition, seek injunctive orderor damages. - DR. TAIWO OLORUNTOBA OJU&amp; ORS V. PROF. P.A. DOPAMU &amp; ORS(2008) 7 NWLR PT. 1085 1 @ 35. In an action fordeclaratory reliefs, the Claimant must succeedon the strength of his case. - EMEMKE v. PDP( 2 0 1 2 ) A L L F W L R P R . 6 4 0 @ P .1281."</span>Per PEMU, J.C.A. (Pp. 6-7, Paras.B-A) - read in context

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2. CUSTOMARY LAW - CUSTOMARY SALE OFLAND: Requirements for a valid sale of landunder Native law and custom<span style="font-size: 12px;">"...The fulcrumof this Appeal is whether the land, the subjectmatter of this appeal was validly sold to theClaimant/1st Respondent. Chief Olua Kalu Oluahad been selling Ndi Ifuaku family lands withUkpai Kalu Olua and Idika Kalu Olua, as co-signatories/vendors for and on behalf of thefamily. In OLASUPO TIMOTHY v. JOEL FABUSUYI(2012) 1 NWLR (PT. 1336) 379 at 384, this Courtheld inter alia thus "... to be valid, what isimportant is that the head of family shouldconcur to the sale and not that he must sign thedocument of sale."</span>Per PEMU, J.C.A. (P.13, Paras. C-F) - read in context

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3. EVIDENCE - CROSS-EXAMINATION: Whetherevidence not pleaded but extracted duringcross-examination is admissible<span style="font-size: 12px;">"On the issue ofnon-pleading of the fact that Olua Kalu Oluasenior gave authority to Olua Kalu Olua (theClaimants' render) to act as the family head, andthat evidence led on that point goes to no issue,I want to agree with the argument of theRespondents in paragraph 7.8 of their brief ofArgument. To the effect that a fact elicited in thecourse of hearing is a fact that is relevant to thefact in issue. That when a fact is in issue, or incontention between the parties, the truth ofsuch facts can be elicited during crossexamination - BIDA v. ABUBAKAR (2011) 5 NWLR(PT. 1239) 130 at 132; ISHENO v. JULIUSBERGER (NIG) PLC. (2009) 6 NWLR (PT. 1084)582. The Court below was right in acting on theevidence elicited under cross-examination inholding that the admissions made by DW1 andDW2 on the fact that the Claimants' vendor wasduly authorized to act as head of the familyknocked off the bottom of the Defendant's case.I do not think that the Claimant departed fromhis pleadings. The evidence which was gottenfrom cross-examination to the effect that theClaimant's vendor was duly held out andauthorized to act as head of Ndi Ifuaku familywas only reinforced."</span>Per PEMU, J.C.A.(Pp. 14-15, Paras. D-C) - read in context

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

Leading Judgment): This is an appeal against the decision

of the High Court of Abia State, holden at Ohafia, delivered

on the 31st of May 2017 in suit No. HUH/37/2014, in which

the Court below granted the reliefs of the 1st Respondent

(as Claimant).

SYNOPSIS OF FACTS

Appellant and the 2nd – 4th Respondents on record are

members of the Ndifuaku family of Ebem Ohafia in Ohafia

Local Government Area of Abia State.

Without the consent of the principal members and head of

the family some of the junior members of the family sold

the family land to the 1st Respondent. When he sought to

take possession of the land, they placed the traditional omu

sign on the land immediately.

As a result of this, the 1st Respondent instituted the action,

the subject matter of this appeal at the Court below seeking

inter alia, a declaration of title to the land.

The Appellant is dissatisfied with the judgment of the Court

below, granting the 1st Respondents reliefs.

Pursuant to the Practice Direction of this Honourable

Court, the Appellant filed a Notice of Appeal encapsulating

three (3)

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Grounds of Appeal – Pages 129-134 of the Record of

Appeal.

The Appellant filed his brief of Argument on the 8th of May

2018, but same was deemed filed on the 14th of May 2018.

It is settled by Uche Igwe Esq.

The Respondents’ brief of argument was filed on the 12th

of October 2018. It was deemed filed on the 19th of

November 2018 and settled by Udo Uduma Esq.

The Appellant filed a reply brief on the 30th of October

2018, but same was deemed filed on the 19th of November

2018.

The issues for determination distilled by the Appellant from

the Grounds of Appeal are two. They are:

1. WHETHER THE CLAIMANT PROVED HIS CASE ON

THE STRENGTH OF HIS OWN CASE TO WARRANT

THE GRANT OF HIS RELIEFS SOUGHT.

2. WHETHER THE CLAIMANT PROVED THAT THE

NDI IFUAKU FAMILY LAND IN DISPUTE WAS

TRANSFERRED TO HIM BY THE FAMILY HEAD AND

PRINCIPAL MEMBERS OF THE NDI IFUAKU FAMILY

TO WARRANT HIS CLAIMS IN THE SUIT.

The Respondents distilled two (2) issues for determination

from the Grounds of Appeal. They are

1. WHETHER THE CLAIMANT PROVED HIS CASE TO

WARRANT THE GRANT OF THE RELIEFS SOUGHT?

2. WHETHER THE CLAIMANT PROVED THAT THE

LAND

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IN DISPUTE WAS VALIDLY TRANSFERRED TO HIM

WITH THE CONSENT OF THE HEAD AND PRINCIPAL

MEMBERS OF NDI IFUAKU PATERNAL FAMILY?

The issues distilled by the Respondents are in my opinion

an adoption of the issues distilled by the Appellant. I shall

therefore determine this appeal based on the Appellant’s

issues for determination.

ISSUE NO 1.

The Appellant submits that in an action for declaratory

reliefs, the Claimant ought to succeed on the strength of

his own case and not on the weakness of the Defendants’

case – WOLUCHEM v. GUDI (1981) 5 SC. 291.

That in the instant case, the 1st Respondent herein (as

Claimant in the Court below) had in proof of his case,

testified himself and through witnesses that he purchased

the land in dispute from the Ndi Ifuaku paternal family of

the Defendants, tendering a power of attorney in evidence

to that effect.

That it was Olua Kalu Olua jnr. That was the head of family

at the time of the land transaction.

Submits that when the Court below held that Olua Kalu

Olua Senior gave authority to Olua Kalu Olua jnr to act for

him as the family head, there was no pleading and evidence

to

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buttress that assertion. That even if there was evidence, it

s u p p o r t e d n o p l e a d i n g . – c i t i n g S E R I K I V .

ADURALERE (2012) ALL FWLR (PT. 626) PAGE 549 –

PARA G-H

He submits that the Court below was therefore wrong to

believe in, and rely on evidence which was based on

unpleaded facts, thereby granting the Claimants reliefs.

ISSUE NO 2.

The Appellant submits that title to land may be proved by

any of the five ways known to law – IDUNDUN v.

OKUMAGBA (1976) 9-10 S.C. 227.

Submits that the law is trite that a Claimant may rely on

any one of the five ways to prove title to a land in dispute

and in issue. That the 1st Respondent (as Claimant in the

Court below) relied on the way of proof by production of

document of title. But that mere production of title

document does not entitle a party to the declaration over

the property in dispute. The document has to undergo

specified judicial and legal tests before it is admitted in

evidence as proof of title to the land in issue.

He submits that before the title document is admitted as

sufficient proof of ownership, the Court must satisfy itself

that:-

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a. The document is genuine or valid.

b. It has been duly executed, stamped and registered.

c. The Grantor has the authority and capacity to make the

grant.

d. The Grantor has in fact what he proposes to grant and.

e. That the grant has the effect claimed by the holder.

Citing ROMAINE v. ROMAINE (1992) 4 NWLR (PT.

238) 650; KYARI v. ALKALI (2001) FWLR (PT. 60)

1481; DABO V. ABDULLAHI (2005) ALL FWLR (PT.

255) 1039.

Submits that the 1st Respondent (as Claimant in the Court

below) did not prove that the land in dispute was

transferred to him by the family head and principal

members of the Ndi Ifuaku family, to warrant the grant of

his reliefs at the Court below. That the 1st Respondent has

not been able to prove that this has been done.

Submits that the family land in dispute was sold by persons

who were not the family head and/or senior and principal

members of the family.

That the Claimant under cross-examination did say that:-

“It is the performance of the customary rites that

shows that land has been sold. It is true it is so the

oldest man that it is to be performed.”

But that the Claimant (1st Respondent) did not prove that

this has been done.

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Urges this Honourable Court to hold that the persons who

sold the land in dispute were not the right persons to so do,

and to set aside the judgment of the Court below and allow

the appeal.

RESOLUTION OF ISSUES

I shall consider both Issues 1 and 2 together.

ISSUES NOS’ 1 AND 2

On principles governing the grant of declaratory reliefs, it

is that declaratory reliefs are granted at the discretion of

the Court. All relevant facts that could affect the

withholding of the discretion of the Court to make the

declaration must be properly canvassed and placed before

the Court for consideration.

When a litigant claims declaratory reliefs, he does no more

than to invite the Court to declare what the law is on the

issue.

Whatever the Court of law may say in acceding to that

invitation is no executory, indeed the grant of such a relief

is discretionary, therefore a Plaintiff who intends to have an

enforceable legal right from a declaratory judgment must

in addition, seek injunctive order or damages. – DR. TAIWO

OLORUNTOBA OJU & ORS V. PROF. P.A. DOPAMU &

ORS (2008) 7 NWLR PT. 1085 1 @ 35.

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In an action for declaratory reliefs, the Claimant must

succeed on the strength of his case. – EMENIKE v. PDP

(2012) ALL FWLR PR. 640 @ P. 1281.

The suit, the subject matter of this Appeal was instituted by

writ of summons dated 3rd of October 2014 and filed on the

9th of October 2014. – Pages 4-5 of the Record of Appeal.

In the statement of claim – paragraph 22 thereof, the

Claimant claim against the Defendants jointly and severally

the following inter alia:-

1. A DECLARATION that the Claimant is entitled to

the grant of statutory Right of Occupancy to the piece

or parcel of land known as and called ABUOKAFIA

NDI IFUAKU LAND measur ing an area o f

approximately 24394.640 square metres which is

more particularly described and delineated in

perimeter survey plan No. SKS/ABCA/007/2007 made

by S. K. Uma Registered surveyor and marked by

survey No SC/ABC 1174, SC/ABC 1175 SC/ABC 1176,

SC/ABC 1177 and SC/ABC 1178 being and situate in

Ebem Ohafia in Ohafia Local Government Area of Abia

State of Nigeria within the jurisdiction of this

Honourable Court.

2. AN ORDER of injunction ...

3. The sum of FIFTY MILLION NAIRA (N50M) being

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damages for acts of trespass…” – Pages 11 – 12 of the

Record of Appeal.

In paragraph 6 of the statement of claim, the Claimant

(now 1st Respondent) pleaded thus:-

PARAGRAPH 6.

“The Defendants family was represented in the land

purchase transaction by the then head and leader of

the family, Chief Olua Kalu Olua (jnr) and some

principal members of the family in accordance with

Ebem Ohafia native law and custom.” – Page 8 of the

Record of Appeal.

In paragraph 2 of the Claimants reply to the statement of

defence, he reiterated this by averring thus:

PARAGRAPH 2 (VI)

“The Claimant maintains that Chief Olua Kalu Olua

was the head of the family at the time of the land sale

transaction and that he effected the sale with the

consent and to the knowledge of principal members

of the family” – Page 82 of the Record of Appeal.

PW1 – Okwara Igu – is a poster and land agent. He does not

know Chief Olua Senior alias Teacher Sunday. He also does

not know of Chief Olua Kalu Olua Junior. He testified that

whether the eldest man in the family must be involved in

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the sale of family land before it can be valid defends. He

has seen several land sold without the family head but with

the consent of two or more members of the family.

PW2 – ARUA KALU EMETU, a business man testified that

it is not entirely so that under Ohafia custom the younger

members of the family cannot sell land without the consent

of the family head. That Chief Olua Kalu Olua senior was

not the head of family at the time of the transaction and

had not been.

PW3 – KALU EKE testified that he knows Ohafia custom.

Ohafia land is not sold according to age, as any important

person in the family can sell family land.

It is the argument of the Appellant that there was no

pleading and evidence to buttress the assertion that Olua

Kalu Olua senior gave authority to Olua Kalu Olua junior to

act for him as the family head. That even if there was

pleading, there was no evidence in support thereof.

In paragraphs 5, 6 and 7 of the statement of claim, the

Claimant had this to say:-

PARAGRAPH 5

“The aforesaid land in dispute belongs to the

Claimant who lawfully and validly purchased same in

2007 from

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the Defendants’ Ndia Ifuaku paternal family who were

the original owners of the land under the Ebem

Ohafia native law and custom. The land purchase

transaction was to the knowledge of all the

Defendants and other members of Ebem Ohafia

community.

PARAGRAPH 6

“The Defendants’ family was represented in the land

purchase transaction by the then head and leader of

the family, Chief Olua Kalu Olua and some principal

members of the family in accordance with the Ebem

Ohafia native law and custom.

Paragraph 7

“The Claimant not only paid the agreed purchase

price of six hundred and fifty thousand naira

(N650,000.00) but also performed the requisite

customary rites to the family of the Defendants in

respect of the land. The land purchase transaction

was reduced to writing in a document headed Power

of Attorney which is hereby pleaded as a document

evidencing payment of money in land purchase

transaction.”

The 1st Respondent’s case is that he bought the land in

dispute from the Respondents but was not let into

possession. On their part, the Appellant and 2nd – 4th

Respondents are saying that who sold the land here was

not

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the right persons to sell. They contend that those who

witnessed the agreement were not the principal members

of the family.

But the present 1st and 2nd Defendants/Respondents were

the signatories on the Agreement on behalf of the

Respondents’ family.

The 1st Respondent testifying as DW2, agreed under cross-

examination that he and the other Respondents are

principal members of the Respondents’ family.

Exhibit “H” was signed by Chief Olua Kalu Olua as head of

the family. The Respondents are contending that he was

only acting on behalf of his elder brother who was the right

head of the family.

The agreement then was not a case of family transaction

over land without the head of the family, which would have

rendered same null and void ab initio.

Chief Olua Kalu Olua, having been agreed by both parties,

to have signed the agreement in his capacity as the head of

the family, the agreement stands valid. It is however

voidable if the principal members of the family were not

involved.

Moreso, the 1st Respondent led evidence to show that the

Appellant and Respondents’ family have sold other lands,

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and those who signed his document are the same persons

who signed the other documents. For example the sale to

one Onwuka Nwoke which shares boundary with the land

in dispute, and was part of Abuokafia Ndia Ifuaku land of

the Defendants. Interestingly as observed by the Court

below, none of those sales have been shown to be by the

wrong members of the Defendants/Respondents family.

Why should the 2nd – 4th and Appellant do a U-turn to say

that their people are no longer the right members of the

family to execute land agreements on behalf of the family?

I am of the view that the 1st Respondent has proved his

case, as those who sold land to him were the rightful

persons to so do. The Appellant had argued that the Court

below based its decision on unpleaded facts. That in

considering the document Exhibit “L” showing that at the

time of the transaction in 2007, Olua Kalu Olua (Senior)

Aka Teacher Sunday Olua was the head of the family of the

Ifuaku paternal family, turned round to hold that he Olua

Kalu Olua (Senior) gave authority to Olua Kalu Olua junior

to act for him as the family head when this was not

pleaded. That

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there was no amendment by the 1st Respondent (Claimant)

to incorporate this fact and issue as part of his pleadings

and case.

The Appellant reiterated the fact that the evidence that the

senior Olua Kalu Olua gave authority to the junior Olua

Kalu Olua to act as the family head, was not pleaded by the

1st Respondent (Claimant in the Court below).

I am of the view, however that the 1st Respondent had

proved that the land in dispute was transferred to him by

the family head and principal members of the family of Ndi

Ifuaku.

The fulcrum of this Appeal is whether the land, the subject

matter of this appeal was validly sold to the Claimant/1st

Respondent.

Chief Olua Kalu Olua had been selling Ndi Ifuaku family

lands with Ukpai Kalu Olua and Idika Kalu Olua, as co-

signatories/vendors for and on behalf of the family.

In OLASUPO TIMOTHY v. JOEL FABUSUYI (2012) 1

NWLR (PT. 1336) 379 at 384, this Court held inter alia

thus “… to be valid, what is important is that the head of

family should concur to the sale and not that he must sign

the document of sale”. DW1 and DW2 testified that Mr.

Olua Kalu Olua Aka Teacher Sunday, it was who lived in

Aba, that

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authorized Chief Olua Kalu (the sand execrator) to act for

him as head of Ndi Ifuaku family.

Exhibit “C” seems to me to confirm the contention of the

1st Respondent that Ndi Ifuaku lands were sold by the

three of Chief Olua Kalu Olau, Ukpai Kalu Olau and Idika

Kalu Olua.

To allow the Respondents family to resile from such

representation would occasion injustice.

Exhibit “H” states clearly that the persons who represented

the family in that transaction did so as head and principal

members of the family. – Page 99 of the Record of Appeal.

On the issue of non-pleading of the fact that Olua Kalu Olua

senior gave authority to Olua Kalu Olua (the Claimants’

render) to act as the family head, and that evidence led on

that point goes to no issue, I want to agree with the

argument of the Respondents in paragraph 7.8 of their

brief of Argument. To the effect that a fact elicited in the

course of hearing is a fact that is relevant to the fact in

issue. That when a fact is in issue, or in contention between

the parties, the truth of such facts can be elicited during

cross

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examination – BIDA v. ABUBAKAR (2011) 5 NWLR (PT.

1239) 130 at 132; ISHENO v. JULIUS BERGER (NIG)

PLC. (2009) 6 NWLR (PT. 1084) 582.

The Court below was right in acting on the evidence

elicited under cross-examination in holding that the

admissions made by DW1 and DW2 on the fact that the

Claimants’ vendor was duly authorized to act as head of the

family knocked off the bottom of the Defendants case. I do

not think that the Claimant departed from his pleadings.

The evidence which was gotten from cross-examination to

the effect that the Claimant’s vendor was duly held out and

authorized to act as head of Ndi Ifuaku family was only

reinforced.

In all, I am of the view that the Appeal fails and same is

hereby dismissed.

The judgment of the High Court of Abia State holden at

Ohafia in suit No. HOW/37/2014 is hereby affirmed.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I had the privilege of

reading the draft of the lead judgment of my lord, RITA

NOSAKHARE PEMU, J.C.A., stating that the appeal lacks

merit. I agree with her reasoning and conclusions. I too

dismiss the appeal and affirm the judgment of the Lower

Court.

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Appearances:

Uche Igwe, Esq. For Appellant(s)

Udo Uduma, Esq. For Respondent(s)

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