Background
The present case arises from an action initiated by Mr. Dominic Ikheloa (“the defendant to the counter-claim”) against Mr. and Mrs. Amiohu Sylvester (“the first counter-claimant”) and Mrs. Amiohu Obehi (“the second counter-claimant”) on 20 May 2013. Upon service of the writ, the counter-claimants filed a joint Statement of Defence and a Counter-Claim seeking, inter alia, a declaration of their entitlement to statutory rights of occupancy over a parcel of land measuring approximately 100ft by 150ft at Uzenema Road, Arue Uromi; the setting aside of a purported sale by the Irewan family to the defendant by way of a forged Deed of Transfer dated 2 June 2009; general damages of ₦1,000,000.00 for trespass; and a perpetual injunction restraining further interference with the land.
In support of their case, the counter-claimants relied on evidence of traditional title tracing the land’s descent over 150 years through successive generations in accordance with Esan native law and custom, culminating in a purchase by Augustine Okoduwa from whom they acquired equitable interest by virtue of an unregistered Deed of Transfer dated 24 October 2012 (Exhibit A). They also tendered evidence of acts of ownership, including the commencement of building works reaching roofing level on the disputed site.
Procedural History
Following several adjournments due to the defendant’s non-appearance to prosecute his initial claim, the court struck out Mr. Ikheloa’s case and proceeded to adjudicate the Counter-Claim. Fresh hearing notices were served, but the defendant again failed to appear, resulting in the non-adoption and abandonment of his frontloaded witness statements. Consequently, the court heard oral testimony from the first counter-claimant and four additional witnesses (DCW1–DCW5) and admitted several exhibits, including Exhibits A, D and E, before closing the case in October 2017. Learned counsel for the counter-claimants filed a comprehensive Written Address presenting a sole issue for determination: whether credible evidence had been led in proof of the counter-claim entitling the claimants to relief.
Issues
- Whether the counter-claimants have established, on the preponderance of unchallenged evidence, their title to the disputed land by way of traditional history, documentary evidence, or acts of possession.
- Whether the Deed of Transfer dated 2 June 2009 (Exhibit E) is null and void as a forged instrument and whether the purported sale by the Irewan family to the defendant should be set aside.
- Whether the counter-claimants are entitled to general damages of ₦1,000,000.00 for acts of incursion onto their land.
- Whether a perpetual injunction should be granted to restrain further trespass by the defendant and any persons claiming under him.
Ratio Decidendi
The decisive principle applied by the court was that unchallenged evidence, if credible and cogent, must be given probative value, even in an undefended suit. The court reaffirmed that a registrable instrument, though unregistered, grants an equitable interest to the purchaser and that acts of ownership—such as construction activity—constitute acts of possession under Section 35 of the Evidence Act. The court also invoked established authorities requiring frontloaded witness statements to be physically adopted in open court to serve as evidence.
Court Findings
- Traditional Title: The court accepted the uncontroverted oral history tracing title from Pa. Ogbejele (the original deforester) through Pa. Irewan, Pa. Uikhena, Pa. Okoduwa Uikhena, and Pius Ehikioya Okoduwa to Augustine Okoduwa, and found it credible and consistent with Esan native law.
- Documentary Evidence: Exhibit A (the unregistered Deed of Transfer of October 2012) was held to confer an equitable interest on the counter-claimants which could only be defeated by a bona fide purchaser for value without notice.
- Abandonment of Defence: The defendant’s failure to attend trial and adopt his frontloaded depositions rendered his evidence abandoned, leaving the counter-claimants’ evidence unchallenged.
- Possession and Acts of Ownership: The court found that erected structures reaching roofing stage constituted clear acts of possession and ownership, reinforcing the equitable interest derived from Exhibit A.
- Forgery of Exhibit E: The court accepted submissions that Exhibit E (the June 2009 Deed) was forged and consequently null and void.
- General Damages: The stalling of roofing works due to the defendant’s actions entitled the counter-claimants to modest general damages, assessed at ₦1,000,000.00.
- Perpetual Injunction: Having established trespass and awarded damages, the court granted an injunction to prevent further interference with the land.
Conclusion
The High Court resolved the sole issue in favor of the counter-claimants, granting: (i) a declaration of entitlement to statutory right of occupancy; (ii) an order setting aside the forged June 2009 Deed; (iii) ₦1,000,000.00 general damages; (iv) a perpetual injunction; and (v) costs of ₦20,000.00 to the counter-claimants. Judgment was delivered on 2018-05-16 by Justice P.A. Akhihiero.
Significance
This decision emphasizes the weight courts must place on unchallenged evidence in default contexts, the protectable equitable interest arising from unregistered purchase instruments, and the necessity for proper adoption of frontloaded statements. It reinforces Nigerian land law principles including multiple independent modes of proving title—traditional evidence, documentary evidence, acts of possession, and long use—and clarifies the court’s approach to general damages and interlocutory relief in land disputes.