Legalpedia Citation: (2015) Legalpedia (CA) 43141
In the Court of Appeal
HOLDEN AT PORT HARCOURT
Fri Mar 20, 2015
Suit Number: CA/PH/203/2013
CORAM
PARTIES
CHIEF EMEKA ORLU APPELLANTS
ELDER CHIEF GODFERY ONUOHA ORLU
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimant/Respondent as head of the family succeeded the previous head of family being the eldest member of the family. It was alleged that he padlocked the hall known as OBIRI, which was customary for every family to have and denied free access thereto to other members of the family on grounds that the Defendants/Appellant trespassed unto the land which he inherited from his grandfather and built the family hall thereon The Defendant/Appellant did not see why they should obtain permission from the Claimant before using the hall whereupon the Claimant/Respondent instituted an action at the Rivers State High Court alleging that the Defendants forcibly broke the key to the hall. The Claimant/Respondent claimed that he is the owner in possession and entitled to the statutory right of occupancy in and over the parcel of land and the hall erected thereon, the sum of One Million Naira being special and general damages for trespass by the Defendants and a perpetual injunction restraining the Defendants from further acts of trespass on the said land and hall.
The Defendants on their part filed a counter claim seeking an order directing the Claimant to immediately surrender the custody and management of the family hall (Obiri) to the 1st Defendant who shall hold it in trust until the 2nd eldest member assumes the position of Ojiowhor, an order of perpetual injunction restraining the Claimant, his servants, agents or privies from trespassing into any land of the family and the hall amongst other reliefs. At the close of evidence and addresses of respective counsel, the learned trial Judge entered judgment in favour the Claimant. Dissatisfied with the Judgment of the trial court, the Defendants have appealed to the Court of Appeal.
HELD
Appeal succeeds in part.
ISSUES
1.Whether the Appellants, as the defendants/counter-claimants, proved that the disputed family hall, Orlu Obiri, was built in 1985 at the instance of and with the acquiescence of the Claimant/Respondent’s father, Ojiowhor Frank Orlu?
2. Whether the learned trial Judge was right in his decision that the claimant was entitled to occupy the position of Ojiowhor (family head) of the Orluworia family notwithstanding his unacceptable conducts and refusal to perform necessary customary rights?
RATIONES DECIDENDI
FACT – UNDISPUTED FACTS NEED NO FURTHER PROOF
“The law is settled that facts not disputed and/or rebutted are taken as admitted and established, and therefore need no further proof. I said so in Nigerian Brewries Plc v. Pabod Breweries Ltd & Anor (2010) LPELR – 4609 (CA) relying on Alagbe V. Abimbola (1978) 2 SC 39; Odume v. Nnachi (1964) 1 ALL NLR 1; Etuwewe V. Etuwewe (19993) 2 NWLR [pt.274] 185.” PER E. EKO J.C.A
NEMO DAT QUOD NON HABET – PRINCIPLE OF NEMO DAT QUOD NON HABET
“The law, as stated by the Supreme Court in a number of cases, including Adelaja v. Fanoiki (1990) 3 NWLR [pt.131] 137; Boulos v. Odunsi (1959) SCNLR 591, on the principle of nemo dat quod non habet, is that a person can only convey to another that which he has/has. In otherwords, no one can convey to another that which he does not have. A part inheriting another can not therefore inherit what his predecessor-in-title did not have. The successor-in-title inherits only that which his predecessor-in-title had at the time of his death. This Court, per Saulawa, JCA, adumbrating on this principle of nemo dat quod non habet stated in Eguta v. Onuma (2007) 10 NWLR [pt.1042] -; (2007) LPELR 824 (CA) 1 at 24 A that “it is trite that nobody can give what he does not have or possess.” PER E. EKO, J.C.A
DUTY OF PARTIES IN PROCEEDINGS – PARTIES ARE NOT ALLOWED TO APPROBATE AND REPROBATE ON THE SAME ISSUE.
“Court room advocacy is not an art of war as such where deception is a virtue. The rudimentary principle in pleading or procedure is that parties must be consistent in their case at the trial court and on appeal. A party cannot be allowed to approbate and reprobate on the same issue: see Suberu v. The State (2010) 8 NWLR [pt.1197] 586 SC. Thus a party who disproves his own relief on the writ by providing evidence to the contrary of that relief or claim is not entitled to any favourable judgment on that relief. See Paul Ameh v. The State (1978) NSCC 368.”PER E. EKO, J.C.A
CASES CITED