On When identity of land in issue
It is the duty of a claimant to prove clearly and
unequivocally the precise area to which his claim relates. However, this duty
does not arise if the defendant in his statement of defence does not dispute the
identity of the property or the location specifically make it an issue in his
pleadings by by the claimant. In the instant case, the appellant property in
dispute in Ikoyi, Lagos. The amended statement of claim also specifically
mentioned the Sharada, Kano property and left no doubt as to the properties
dealt with in exhibit “MM2”. The appellant’s further amended statement of
defence and counter-claim copiously particiularised the properties covered by
exhibit “MM2”. The evidence on the properties also did not create any doubt
that the parties were ad idem on the identities of the properties in
contention. (Dada v Dosunmu (2006) 18 NWLR (Pt. 1010) 134; Akinterinwa v. Umoh
(1999) 11 NWLR (Pt.627) 349; Gbadamosi
v. Dairo (2007) 3 NWLR (Pt. 1021) 282 referred to.) Pp.32-33, paras.
On Need to describe land in dispute with certainty in action
for declaration of title to land –
In a case for declaration of any right or title over land,
the land must be described with certainty so that the parties are ad idem as to
its identity. Once parties are ad idem, there can be no room for a finding that
the identity of property in dispute is unascertainable. In the instant case,
the action was for rescission of contract due to fraudulent misrepresentation
and not for declaration of title to land. (Auta v. Ibe (2003) 13 NWLR (Pt. 837)
247; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 referred to.) P. 33,
On purport of decision in Idundun v. Okumagba (1976) 10 SC
The case of Idundun v. Okumagba (1976) 10 SC 227 deals with
the five ways in which ownership of land can be proved and not with the ways of
acquiring title to land. In other words, the case is about matters of evidence
to be adduced or how to discharge the burden of proof rather and not about the
substantive law on acquisition of title. The principles laid down in the case
cannot be applied mechanically without recourse to facts before the court.
(Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 referred to.) P. 42, paras,
On Whether vendor of land can retract from contract for sale
of land after receiving consideration –
Where a party entered into an agreement with his eyes open
and received consideration which he never returned to the other contracting
party, equity will come in to stop him from retracting from the agreement. He
cannot be allowed at that stage, having benefited, to refuse to give
consideration to the other party by passing title of the property to him.
(Dantata v. Dantata (2002) 4 NWLR (Pt. 756) 144; Okafor v. Soyemi (2001) 2 NWLR
(Pt. 698) 465 referred to.) Pp. 42-43, paras. F-B).
On Conditions for successful plea of laches and acquiescence
For the doctrine of laches and acquiescence to succeed, it
must be established that such laches and acquiescence amount to fraud. The
elements which constitute such requisite fraud are:
(a) the plaintiff (person) who set up the doctrine of laches
and acquiescence must have made a mistake as to his legal rights;
(b) such a plaintiff (person) must have expended some money
or must have done some act on the faith of his mistaken belief;
(c) the defendant, the possessor of the legal right, must
also know of the existence of his own right which is inconsistent with the
right claimed by the plaintiff, as doctrine of acquiescence is founded upon
conduct with knowledge of one’s legal rights;
(d) the defendant, the possessor of the legal right, must
know of the plaintiff’s mistaken belief of his rights;
(e) the defendant, the possessor of the legal right, must
have encouraged the plaintiff in his expenditure of money or in the other acts,
which he has done either directly or by abstaining from ascertaining his legal
(Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 684 referred
to.) P.43, paras. C-G)
On Nature of interest in land conferred by receipt of
purchase price and delivery of possession –
The receipt of purchase price coupled with the delivery of
possession confers an equitable interest in landed property. In the instant
case, the receipt of the purchase price by the 1st respondent coupled with the
delivery of possession by him to the 2nd respondent conferred on the 2nd
respondent an equitable interest in the Ikoyi, Lagos property. (Nsiege v.
Mgbemena (2007) 10 NWLR (Pt. 1042) 364; Thompson v. Arowolo (2003) 7 NWLR (Pt.
818) 163 referred to.) P.44, paras. C-D)
On whether equitable interest in land can be passed –
A person with an equitable interest in land which is capable
of being turned into a legal estate by specific performance can pass the
equitable title to another who would acquire the legal estate after the
specific performance. In the instant case, the 2nd respondent had acquired an
equitable interest in the Ikoyi, Lagos property and it would be inequitable to
deprive him of it. (Pp. 45, paras. C-D; 46, para. B)On Application of principle
of nemo dat quod non habet –
Where a seller is shown as not having title in him at the
time of sale, the contract of sale must be vitiated on application of the
principle of nemo dat quod non habet. Such contract is void ab initio. In the
instant case, the principle was not applicable to the facts of the case. If the
2nd respondent had indicated in exhibit “MM2” that he had legal estate to pass
on to the 1st respondent at the time of sale which turned out to be false, the
contract in respect of the Sharada, Kano property would have been vitiated.
(Mohammed v. Klargester (Nig.) Ltd (2002) 14 NWLR (Pt. 787) 335 referred to.)
Pp. 44-45, paras. H-B)
On Basis of principle of bona fide purchaser for value
without notice –
The whole basis of the equitable principle of bona fide
purchaser for value without notice is to protect a purchaser from the fraud of
his vendor. If a purchaser fails to investigate title at all, he is fixed with
constructive notice of everything that he would have discovered had he investigated
the whole title. In the instant case, the appellant never consulted with the
1st respondent before the purchase but merely acted on the presumption that all
was well and on the representation made to him by the 2nd respondent. (Omosanya
v. Admin. Gen., E.C.S. (1978) 1 SC 25 referred to.) P. 48, paras. B-D)
On Types of notice –
There are three types of notice and they are as follows:
(a) actual notice, which is when a person has actual notice
of all facts of which he has actual knowledge however that knowledge was
(b) constructive notice by which the court of chancery
insisted that a purchaser should inquire about equitable interest with no less
diligence than about legal interest which he could ignore at his own peril; and
(c) imputed notice, which is the actual or constructive
notice imputed to a purchaser where the notice was received by an agent
employed by the purchaser.
In the instant case, what the evidence suggested was a lack
of notice or knowledge of the controversy rather than of the legal interest of
the 1st respondent. (Animashaun v. Olojo (1990) 6 NWLR (Pt. 154) 111 referred
to.) (p.48, paras. D-H)
On principles governing protection of property and
protection of commercial transactions –
The law recognizes the protection of property, that is, no
one can give a better title than he himself possess. The law also recognizes
the protection of commercial transactions, that is, the person who takes in
good faith and for value without notice should get good title. (P.49, paras.
On when court will imply performance of contract within
reasonable time –
In a contractual relation where time is of essence in
respect of performance of a contract, the law in respect of performance within
a reasonable time, will imply performance within a reasonable time, although
the contract between parties is silent in respect of time for performance.
Thus, where no term concerning time for performance was agreed upon by parties,
it is the duty of the court to read into the contract a term that performance
was agreed to be given within a reasonable time. The reasonable time would
depend on the circumstances of each case. In the instant case, because of the
circumstances of the 2nd respondent and the fact that specific performance was
dependent on other people extraneous to the agreement, the court could not hold
that an unreasonable time was taken in ensuring transfer of the Sharada, Kano
property. (N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617;
Edem v. Canon Balls Ltd. *2005) 12 NWLR (Pt. 938) 27 referred to.) Pp. 45-46,
paras. E-F; para. A)
On whether claim in respect of agreement can be made against
party with whom there is no privity of contract –
A claim in respect of an agreement cannot be made against a
party with whom ther is no privity of contract. In the instant case, the
appellant could not succeed in his counter-claim against the 1st respondent in
respect of the Ikoyi, Lagos property as there was no privity of contract
between them. (Pp. 47-48, paras. H-A)
Per OGUNWUMIJU, J.C.A. at pages 47-48, paras. H-B:
“As I held earlier in this judgment, the two agreements in
respect of the two properties are distinct. I have also held that the equity of
this case is in favour of the 2nd respondent. The 2nd respondent can succeed in
a counterclaim against the 1st respondent. However, I do not think the
appellant can succeed in a counter-claim against the 1st respondent. In the first
instance, there is no privity of contract between the 1st and 2nd defendant
hence, the appellant cannot claim against the 1st respondent”.
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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