Background
This dispute arose when the Claimants, Mr. Jude Osinde and Rev. Father Simon Peter Osinde, sued their elder brother, Mr. Gabriel Osinde, over ownership and possession of a 659.50 sqm property at No. 30 Mission Road, Uromi, Edo State. The Claimants produced a Deed of Assignment dated 21 January 2009, in which their late father, Mr. Patrick Ajegbelen Osinde, purportedly sold the property to them for ₦5 million. They also tendered an Application for Governor’s Consent and letters notifying tenants of the change of ownership. The Claimants alleged trespass by the Defendant in November 2013, including padlocking their stores and assaulting the 1st Claimant, resulting in criminal conviction of the Defendant and his agents.
The Defendant counter-claimed, asserting that under Esan native law and custom of Isua, Arue-Uromi, as the eldest surviving son he inherited all his father’s estate, including the property in dispute, after performing funeral rites in January 2013. He challenged the Deed of Assignment as forged and urged that his father was forbidden by custom from selling property to his children. He also sought damages for trespass by the Claimants.
Issues
- Whether the Claimants proved their entitlement to a declaration of title, general damages and perpetual injunction.
- Whether the Defendant/Counter-Claimant established his right of inheritance and entitlement to his counter-claim reliefs.
Ratio Decidendi
The Court held that:
- Section 43 of the Nigerian Constitution guarantees every citizen the right to acquire immovable property anywhere in Nigeria, rendering any custom that forbids a father from selling property to his children void.
- A registrable instrument not yet registered (the Deed of Assignment) vests an equitable interest in the purchaser, defeasible only by a bona fide purchaser for value without notice of the prior equity.
- Allegations of forgery must be proved beyond reasonable doubt. The Defendant failed to meet this high burden where no expert or direct denial by the alleged author of the signature was available.
- Acts of possession and notices to tenants by the Claimants demonstrated constructive possession and acts of ownership.
- Where the main claim succeeds, an intertwined counter-claim must fail for lack of independent merit.
Court Findings
The Court found that the Claimants:
- Presented credible evidence of purchase, including Exhibit A (Deed of Assignment) and Exhibit E (Application for Governor’s Consent), witnessed by two siblings.
- Exercised acts of ownership through reserved stores, rent collection by their father, written notices to tenants (Exhibits G–G5, H–H5), and continued business occupation.
- Refuted the Defendant’s custom argument by admitting that Esan custom allows a father to sell property to any person, including his children.
Conversely, the Defendant’s allegations of forgery were unsubstantiated and his inheritance claim could not extend to property lawfully sold before his father’s death. His counter-claim was dismissed for lack of independent merit.
Conclusion
The Court resolved both issues in favor of the Claimants. It declared that the Claimants are the rightful owners and have statutory right of occupancy over the property. It awarded general damages of ₦2,000,000.00 to the 1st Claimant for trespass and its consequences, granted a perpetual injunction restraining the Defendant, his agents or privies from any further trespass, and awarded ₦200,000.00 costs to the Claimants. The Defendant’s counter-claim was dismissed.
Significance
This decision underscores the supremacy of constitutional rights over customary law and clarifies that an unregistered registrable instrument suffices to create an equitable interest enforceable against all except a bona fide purchaser without notice. It also affirms the high burden required to prove forgery and confirms that intertwined counter-claims fail when the principal claim prevails.