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Mrs. Deborah Joseph & Ors. V. Joseph Asele & Anor. (15 Dec 2021, CA/J/51/2004)

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➥ CASE SUMMARY OF:
Mrs. Deborah Joseph & Ors. V. Joseph Asele & Anor. (15 Dec 2021, CA/J/51/2004)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Sale of property;
Name on property document;
Joint-owner;
Family property.

➥ CASE FACT/HISTORY
The Appellants as Plaintiffs and the 1st Respondent are members of one family residing at Assakio town. The 1st, 3rd Appellants and 1st Respondent jointly bought a plot of land from one Ezekiel Abimiku at the cost of N1,000 for the sole purpose of erecting a family house. After building the family house, they moved into the house and later, the 1st Respondent sold the house to one Amos Katsa and later to the 2nd Respondent for the sum of N80,000.00 allegedly without knowledge and consent of the Appellants. The Appellants aggrieved by the sale, initiated this action against the Respondents. In proof of their claim, the Respondent called 5 witnesses and tendered Exhibits A and B while the Appellants called 3 witnesses. The trial Judge after a careful consideration went ahead to dismiss the Appellants’ claim to set aside or nullify the sale of the said of the property by the 1st Respondent to the 2nd Respondent and went further to hold that the Appellants and 1st Respondent should vacate the property and surrender possession to the 2nd Respondent. The Appellants aggrieved with the said judgment brought the instant appeal.

➥ ISSUE(S)
I. Whether the trial Court was right when it dismissed the claim of the Appellants for a declaration of joint ownership on the ground that title to the property in dispute has been transferred by the 1st Respondent to Amos Katsa which title was later transferred to the 2nd Respondent?

II. Whether the learned trial Chief Judge having held that the sale of the property by the 1st Respondent to the 2nd Respondent was invalid, was right when he dismissed the claim of the Appellants and awarded ownership and possession of the property to the 2nd Respondent?

III. Whether the trial Court had jurisdiction to award the reliefs of ownership and possession of the disputed property to the 2nd Respondent who did not counter-claim the reliefs?

IV. Whether from the claims of the Appellants pleadings and evidence adduced before the trial Court, Amos Katsa is a necessary party to this case and his non-joinder defeated the claim of the Appellant?

V. Whether the trial Court evaluated the evidence adduced and considered the weight of evidence before it?

➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]

↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.

[THERE WAS NO JOINT OWNERSHIP, THE PROPERTY WAS IN THE 1ST RESPONDENT’S NAME ONLY
‘A clear understanding of the root and nature of land holding through purchase will throw up different considerations. Taking family law principles out of contention leaves the general principles of land which is jointly owned by several persons and not a customary or family land. In that case, the purchase document will clear every doubt about who owns the land. It was made clear by the evidence of the 1st Appellant that they contributed money and agreed that the 1st Respondent should buy the land in his name. So the title documents or the initial sale agreement was strictly in the name of the 1st Respondent and not in the names of the Appellants and the 1st Respondent. It is therefore difficult for the Appellants to want to lay claim to the property as family land without any agreement on the arrangement that led to the building of the house. The fact of marriage and brotherhood alone cannot make the Court read into the document names of the Appellants. That being the case, the trial Judge was right to consider the sale by the 1st Respondent as appropriate since the purchase document was in his name alone, he has the right to sell the property and he had sold to Amos Katse before selling again to the 2nd Respondent.’

‘As observed earlier, the document is in the sole name of the 1st Respondent as against the oral evidence of the Appellants, that makes it difficult for the Appellants to get judgment because, oral evidence cannot contradict documentary evidence. See ARIJE v. ARIJE and ORS (2018) LPELR-44193(SC) wherein the apex Court held thus: “oral evidence cannot be used to vary or contradict the contents of documentary evidence, except where fraud is pleaded. See Bunge v. Governor of Rivers State (2006) ALL FWLR (pt. 325) 1; Egharevba v. Osagie (2009) 12 SC (Pt. III) 123; A.G. Bendel State v. UBA Ltd. (1986) 4 NWLR (Pt. 37) 5. See also Section 128 of the Evidence Act 2011.” Per KEKERE-EKUN, J.S.C.’

PER C.I. JOMBO-OFO: ‘There is no evidence before the Court to consider whether there exist a joint ownership between the Appellants and the 1st Respondent in this case. At all times material, the 1st Respondent has shown by uncontroverted cogent evidence to be the sole owner of the disputed land. The transaction in Exhibit ‘B’ which is the title document of the alleged joint ownership bears the name of the 1st Respondent as the purchaser. Again the 1st Respondent also exercised his sole right of ownership, when he outrightly sold the land to one Amos Katse. The fact that the Appellants contributed money and agreed that the 1st Respondent should buy the land in his name even robs them of claim of joint ownership. The law cannot recognize them as joint owners of the land.’

THE 1ST APPELLANT KNEW OF THE SALE
‘Another factor that would defeat the claim is the fact that the 1st Appellant knew of the sale, see page 43 of the record, evidence of 1st Appellant under cross-examination; that she collected 5 bags of rice at the cost of N10,000 and the sum of N3000 as part of purchase price of N80,000.00. DW2 also told the Court below that the 1st Appellant said the sale to the 2nd Respondent was their arrangement with her husband and she collected the bags of rice. DW3 confirmed that the 1st Appellant collected the rice as part payment and admitted she knew that the house was sold but that they want to refund the money, this was also confirmed by DW4. DW6 also confirmed the role and presence of the 1st Appellant during the negotiation and sale of the house to the 2nd Respondent. He also told the Court that after completion of payment and processing of title, he constructed more rooms and the 1st Appellant was the one selling food to the workers during the construction, so she knew title has changed hands. In the light of evidence from different witnesses affirming that the 1st Appellant had knowledge of the sale, even if joint ownership was established, the fact of knowledge and standing by would definitely defeat the claim and therefore the findings made by the trial Judge cannot be impeached.’]
.
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↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.

Available:  Augustine Ugbogbo v. The State (2016)

[THE SALE TO THE 2ND RESPONDENT IS VALID – HE GOT HIS TITLE FROM AMOS KATSA, AND NOT 1ST RESPONDENT
‘Furthermore, the 1st Respondent had previously sold the house to Amos Katsa before the second phantom sale to the 2nd Respondent and the trial Court held that the second sale was null because the 1st Respondent had divested himself of title by the sale to Amos Katsa and therefore had nothing left to sell to the 2nd Respondent. This fact was further established by the evidence of the 2nd Respondent who had to process the legal transfer from Amos Katsa to himself because the Certificate of Occupancy in Exhibit B filed at the Land’s office was already in the name of the said Amos Katsa, see Exhibit B. The challenge or contention that the sale to the 2nd Respondent is null is trite as between the 1st Respondent and the 2nd Respondent because the 1st Respondent had nothing to give. That does not affect the title passed on to the 2nd Respondent by Amos Katsa because he perfected the transfer between Amos Katsa and 2nd Respondent without the 1st Respondent and duly registered the title with the Local Government. The declaration that the second sale is null will not affect the title of the 2nd Respondent because he validly acquired it from Amos Katsa. The argument of the Appellants that they established their claim cannot be correct because by the time the claim was instituted, title had passed on to the 2nd Respondent and there was nothing left therefore to base their claim and that cannot be faulted by virtue of Exhibit B and as supported by the uncontradicted evidence of DW1 and DW2. It was also made out that the sale was with the active participation of the 1st Appellant who even put pressure on the 2nd Respondent to act fast in making payment so that they can refund the money collected from Amos Katse.’]
.
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↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.

[THE RELIEF WAS A CONSEQUENTIAL ORDER
‘Upon the findings that the property was duly transferred to the 2nd Respondent by Amos Katse and therefore the property belongs to the 2nd Respondent, was a consequential order made to give bite to the judgment.’

‘The making of the order on the ownership of the property cannot derogate from the effect of the judgment of the trial Court dismissing the claim even where there was no counter-claim.’]
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↪️ ISSUE 4: IN RESPONDENT’S FAVOUR.

[NON-JOINDER OF PARTY CANNOT DEFEAT A CLAIM EXCEPT WHERE THE NON-JOINED PARTY IS A NECESSARY PARTY
‘The Appellants also made an issue out of the finding that the claim must fail because a necessary party was not joined.  Joinder of parties generally cannot defeat a claim except where the party not joined is a necessary party.’]
.
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↪️ ISSUE 5: IN RESPONDENT’S FAVOUR.

[PARTY WHO COMPLAINS ABOUT EVALUATION OF EVIDENCE HAS TO POINT OUT THE EVIDENCE NOT EVALUATED; TRIAL JUDGE EVALUATED THE EVIDENCE
‘Evaluation of evidence is the primary duty of the trial Court.  See NAGOGO v. CPC and ORS (2012) LPELR-15521(SC), SAGAY v. SAJERE and ORS (2000) LPELR-2976(SC) and MOMOH and ORS v. UMORU and ORS (2011) LPELR-8130(SC). The party who complains that the trial Court failed to evaluate evidence has a duty to identify the evidence that was not evaluated and also establish that if evaluated it would have changed the findings made by the trial Judge, that was the position of the Court in the case of AKPAN v. FEDERAL MORTGAGE FINANCE LTD and ANOR (2018) LPELR-46153 (CA) thusly: “The Appellant alleged that the trial judge failed to evaluate evidence, such a complaint cannot be made at large, the Appellant is duty bound to specifically mention or identify the particular evidence that was not evaluated. See RICHARD IDOWU AKANMODE v. MELAYE DANIEL DINO (2008) LPELR-8405 (CA) and IGAGO v. STATE (1999) LPELR-1442 (SC) which held: “…It is accepted that Appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party, complaining of wrong evaluation.” I have also gone through the Appellants’ brief and I cannot see the piece of evidence identified by the Appellants that was not evaluated by the trial Judge. The fact that the trial Judge summarized the evidence with utmost brevity does not mean the evidence was not evaluated.’]
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.
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✓ DECISION:
‘In the light of findings above, the appeal lacks merit and must be dismissed. The judgment of the trial Court delivered by HON. JUSTICE A.Y. UBANGARI on the 8th day of January, 2003 is hereby affirmed. Cost of N70,000.00 in favour of the 2nd Respondent.’

➥ FURTHER DICTA:
⦿ THE PROPERTY IS JOINT OWNERSHIP, NOT FAMILY LAND
In the light of the evidence led by the Appellants, the alleged contention that the property was family property is outside the purview of family land under customary law where the definition above applies. What happened here is that husband, wife and her brother in-law contributed money jointly and bought a piece of land and constructed a building thereon where they occupied. The house was then sold by 1st Respondent twice to different people. It is obvious that it was a joint purchase of land simply and not family land as known under customary law. — Y.B. Nimpar JCA.

⦿ TO CLAIM JOINT OWNERSHIP, THE PROPERTY DOCUMENT MUST CONTAIN THE RESPECTIVE JOINT OWNERS’ NAME
To claim joint ownership, the purchase or sale agreement must have named all those who are now laying claim as joint owners of the land. Contributions made in constructing the house cannot translate it into joint ownership. Joint ownership of a property “means or presupposes that the property is owned by more than one person or two or more families”. See what the apex Court said in the case of OSUJI v. EKEOCHA (2009) LPELR-2816(SC), it thus: “Joint ownership, as the name implies, presupposes ownership of property by more than one person or by a group of persons. In that regard, property owned by two or more families could be said to be joint property of the families, with attendant tenancy rights of effluxion and other appurtenant tenancy conditions. A claim based on exclusive ownership of property is antithetical to the incidents of joint ownership in our property law. They are in quite distinct and different apartments. Their waters never meet.” Per TOBI, J.S.C. — Y.B. Nimpar JCA.

Available:  CONFIDO CONSULT SERVICES LIMITED v. FEDERAL REPUBLIC OF NIGERIA (2018)

⦿ ACTS OF TRESPASS SHOULD NOT BE ELEVATED TO ACTS OF POSSESSION
Acts of trespass should not be elevated to acts of possession capable of translating into ownership. See Aboyeji v. Momoh (1994) 4 NWLR (Pt.34) 646 and Chukwueke v. Okoronkwo (1999) 1 SCNJ 44 at 52. — I.I. Agube, JCA.

⦿ JOINT-OWNERSHIP OF PROPERTY; IMPLICATIONS
Joint ownership of property implies that there are two or more persons who contributed resources to purchase and own title to a landed property for residential, commercial or industrial purposes as a way of resident or investment or jointly inherited or jointly gifted. Where joint ownership of property exist, it means that each party has an equal proprietary right of ownership in the said land, notwithstanding the weight of contribution made by each party and can jointly exercise such right in respect of the property. See the case of SUNDAY OBASOHAN v. THOMAS OMORODION AND ANOR  (2001) 10 SC 85 (2001) LPELR- 2154 (SC). There exists legal implications on the purchase, gift or inheritance of the joint property by two or more persons. First there is unity of title, unity of commencement of title, unity of interest in the property. Hence no party can lay claim to a part of the property to the exclusion of other parties. Secondly, before the rights in the joint property can be alienated to another person, the consent of all joint owners must be obtained. Where consent is not obtained, the title passed to the purchaser becomes defective. See OLOWOFOYEKU v. A.G. OYO STATE (1990) 2 NWLR (PT 132) 373. — C.I. Jombo-Ofo JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Yargata Byenchit Nimpar, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
S. A. Ayiwulu, Esq.

⦿ FOR THE RESPONDENT(S)
L. D. Dafer, Esq.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)
⦿ DEFINITION OF FAMILY PROPERTY
Family property was defined in the case of UMEADI and ORS v. CHIBUNZE and ANOR (2020) LPELR-49566(SC) as follows: “On the issue of family land, I. A. Umezulike J., in his Book, A.B.C. of Contemporary Land Law in Nigeria pages 295 to 297 stated it as it is thus:- “By definition, family land is land which vests in a group of persons and their children. It could also refer to land which had vested upon individuals who have descended from a common ancestry or pedigree, and including, of course, those such as domestics and strangers who have been incorporated into the family by the founder. At the death of the founder, all the empty land, farm land and houses acquired by him in his life time become family property. In plain language, the land belongs to the family of the said founder as a corporate entity in which case they become inalienable (which means that family land belongs to a vast family of which many are dead, few are living and countless are still unborn) or they become distributable to the members of the founder’s family as defined by him during his lifetime.” The learned author went further in this his book to say that under this land holding, every member of a family has an interest in the property. “Hence, every member of the family has or enjoys a locus-standi to institute an action in respect of any wrong or illegal dealings with the property. And the right of action to protect family property avails the individual member even if he has not, the authority of the family to bring the action. In other words, any member of family, no matter how insignificant he may be considered can bring an action to protect a family land. This tends to make sale of family property uncertain and insecure. We say so because conveyancers approach such sale with the defective eye. This is because a disgruntled member of the family can emerge at anytime or many years after sale to raise sundry objections. A purchaser of a family land does not therefore know how many years he would enjoy the land before counting his blessing. This is because after a decade or more, the sale could be truncated at the suit of an aggrieved family.” Per PETER-ODILI, J.S.C.

⦿ EFFECT OF FAMILY LAND SALE IN CUSTOMARY LAW; PRINCIPAL MEMBERS AND HEADS
In the case of USIOBAIFO v. USIOBAIFO (2005) 3 NWLR (Pt. 913) 665 at 690 thusly: “What is the effect of the head of family selling family land without the consent of the principal members of the family? The case of Ekpendu v. Erika (1959) SCNLR 186, (1959) 4 FSC 79 provides the answer. It was held in that case that where a head of a family sells family land without the consent of the principal members of the family, the sale is voidable. See also Esan v. Faro 12 WACA 135. In Alli v. Ikusebiala (1985) 1 NWLR (Pt. 4) 630, this Court held as follows: (1) Neither the head of the family alone, nor the principal members alone can make any valid alienation or give title to any person with respect to family land. (2) A head of a family not acting as such cannot convey a valid title in respect of family land. (3) Unimpeachable title can only be transferred from one community to another when head of the family does so with the consent and concurrence of the principal members of the family or community. In Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, this Court went further. It held as follows: (1) Where there is a sale or conveyance of family land by the head of the family with some important members thereof but without the consent of some principal members of the family, then the transaction is voidable and those members who should have consented to the transaction but did not, can take out an action to have the transaction set aside. (2) The sale of family land by a member of the family who is not the head of the family, is void. (3) The sale of family land by the head of the family without the consent of principal members of the family is voidable. (4) The sale of family land by the head of the family as his own land is void. (5) Where a sale is void, it has to be so declared if asked to be set aside but where it is voidable, whether or not it will be set aside will depend upon the facts and circumstances of the case. As it is, this Court developed the law further in (4) above, that is, the sale of family land by the head of the family as his own land is void.  Ekpendu v. Erika (supra) did not get to that stage or that far.” Per TOBI, J.S.C.

Available:  Al-maseer Law Firm v. Federal Inland Revenue Service (2019)

⦿ WHAT IS A CONSEQUENTIAL ORDER
A consequential order was defined in the case of LIMAN v. MOHAMMED (1999) LPELR-1783(SC) wherein the apex Court held thus: “What is a consequential order, is defined by Nnaemeka-Agu J.S.C in Akinbobola v. Plisson Fisko Nigeria Ltd. and Ors (1991) 1 NWLR 270, 288 where he said: “A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon, it. It must be giving effect to the judgment already given, not by granting a fresh and unclaimed or unproven relief.” See also Obayagbona v. Obazee (supra) where Sowemimo JSC, as he then was, observed: “We think that by the very nature of the term ‘consequential’ any ‘consequential orders’ must be one giving effect to the judgment. In its ordinary dictionary meaning, the word ‘consequential’ means ‘Following as a result, of inference; following or resulting indirectly’. See the Concise Oxford Dictionary, 5th Edition, Page 258. The word has never been regarded as a term of art. All the consequential orders made by the learned trial Judge were not part of the claims before him and they do not necessarily follow as a result thereof or constitute an inference. A consequential order therefore, made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction. “A consequential order can only relate to matters adjudicated upon.” Per OGUNDARE, J.S.C. The apex Court on the import and effect of a consequential order said thus: “The purpose of a consequential order is to give effect to the judgment. It must therefore flow from the circumstances of the decision of the Court. It must not be at a cross purpose or in any way contradictory to the decision of the Court. See the case of Chikere v. Okegbe 2000 (7 SCNJ) 128 at 145. With the High Court having pronounced an order of a dismissal of the case, the subsequent Orders 3 and 4 did not correctly flow from the judgment of the Court but were inconsistent, contradictory and unnecessarily far reaching. A consequential order is not one merely incidental to the decision but one which necessarily flow directly and naturally therefrom, it is inevitable and consequent upon the decision made by the Court: It must in other words give effect to the judgment already given and not a granting of fresh and unclaimed or unproven relief. It can only relate to matters adjudicated upon. Where it flowed from nothing decided, as it is in the case at hand, the subsequent orders made must be nullified. This was the view held by this Court in Dr. M.T.A. Liman v. Alhaji Mohammed (1999) 6 SCNJ 142. Also in Henry O. Awoniyi v. ARMOC 2002 6 SCNJ 141, it was further held that where a principal order sought was refused by a Court, an incidental order cannot be made. This is because a consequential order by its very nature is predicated on a principal order, without which it must crumble. In other words, it ought to be cut off/or severed. Another related authority is the decision in the case of Obayagbona v. Obazee (1972) (reprint) 5 SC 159 wherein this Court again per Sowemimo, JSC while considering an order made subsequent to a judgment restated clearly at page 162 and said:- “With respect, it is quite wrong for the learned trial judge having declared the plaintiffs successful “as claimed” to make consequential orders which had the effect as in this case of varying his judgment and which in any case were not specifically asked for. The learned trial judge was functus officio, immediately after he gave his judgment.” Also at page 163 of the same report the learned jurist went further and said:- “… A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for plaintiffs as claimed the judge has become functus officio except for any act permitted by law or rules of Court.” Following from the foregoing authority therefore and with the High Court, having dismissed the appeal, it had at that stage become functus officio. The making of subsequent consequential orders which had the effect of varying its judgment and which in any case was not specifically asked for, was erroneous. This is because by nature, the order must be one giving effect to the judgment, it follows as a result to inference; following or resulting indirectly.” Per OGUNBIYI, J.S.C. See the case of EYIGEBE v. IYAJI (2013) LPELR-20522(SC).

⦿ WHO IS A NECESSARY PARTY?
A necessary party was defined in the case of IGE and ORS v. FARINDE and ORS (1994) LPELR-1452(SC) wherein the apex Court held thus: “A “necessary party” to a proceeding has been said to be a party whose presence is essential for the effectual and complete determination of the claim before the Court. It is the party in the absence of whom the claim cannot be effectually and completely determined. See Oyedeji Akanbi (Mogaji) v. Fabunmi (supra) at 475 per Karibi- Whyte, J.S.C. Where, however, the presence of a party is not necessary for the effectual and complete adjudication of the matter before the Court, there will be no jurisdiction under the provisions of Order 13 Rule 19 to order a joinder. See Uku and Ors v. Okumagba and Ors (1974) 3 SC 35 (1974) 1 All NLR (Pt.1) 475. See Peenok Investments Limited v. Hotel Presidential Limited (supra). Where however all the facts before the Court are sufficient for the effectual or complete determination of the claim between the parties before the Court, the applicant cannot be a necessary party and his application for joinder, not being necessary for the effectual and complete determination of the claim will be refused. See Egonu v. Egonu (1973) 3 ECSLR (Part 2) 664, Mantgomery v. Morgan and Company (1895) 2 WBD 321, 324 CA and Isaac Marbell v. Richard Akwei (1952) 14 WACA 143.” Per IGUH, J.S.C.

➥ REFERENCED (OTHERS)

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