Debt is repayable on demand –CA

Between:1.  Okwudili Okonta2. Okili Agwuobi (For Themselves & On Behalf Of Umueza,              Appellants Umu-Onoholisa In Ogbetiti Village, Odekpe)AndChief (Barrisster) Ikenna Egbuna ——    RespondentJudgment (Delivered By Emmanuel Akomaye Agim (Jca) On the 15th of June 2010, the respondent herein, as plaintiff commenced suit No 0/135/2010 against the appellants herein as defendants at the Onitsha Judicial Division of the […]

Between:
1.  Okwudili Okonta
2. Okili Agwuobi
 (For Themselves & On Behalf Of Umueza,              Appellants
 Umu-Onoholisa In Ogbetiti Village, Odekpe)
And
Chief (Barrisster) Ikenna Egbuna ——    Respondent
Judgment

(Delivered By Emmanuel Akomaye Agim (Jca)

On the 15th of June 2010, the respondent herein, as plaintiff commenced suit No 0/135/2010 against the appellants herein as defendants at the Onitsha Judicial Division of the Anambra State High Court by a writ of summons, accompanied by a statement of claim, list of witnesses, statements of oath of 5 plaintiff’s witnesses and exhibits P1 – P8 being the documents in support of the plaintiff’s claim.  In the writ of summons and paragraph 30 of the statement of claim plaintiff claimed for:
a)  A declaration that the plaintiff is a person entitled to a certificate of occupancy for the piece and parcel of land (One acre) which is shown in the dispute plan No. E.E.O/AND 002.2010 made by a registered surveyor E.E. Okafor filed along with the summons in this suit.
b)  An order of court ordering the defendants to refund to the plaintiff the sum of N6,400,000.00 (Six Million, four hundred thousand Naira only) being the present value of the 8 plots of land paid by the plaintiff to the defendants at the rate of N800,000.00 (Eight Hundred Thousand Naira only) per plot.
c) An order of perpetual injunction restraining the defendants, their servants, agents and privies from ever coming into the 8 plots or one acre of land they sold to the plaintiff which is more particularly shown in dispute plan NO. E.E.O/AND 002/2010.
On the 18th July 2010, the defendants filed a notice of preliminary objection praying the trial court to dismiss the suit on the grounds that:
(a) It has disclosed no reasonable cause of action.
(b) Relief No (b) is also statute barred for having been brought in contravention of Section 12(c) and 20(1)(a) Actions Law Cap 3 Laws of Anambra State, 1991.
(c) It is an abuse of Court Process.
The notice of preliminary objection was supported by an affidavit of 17 paragraphs deposed to by the 2nd defendant and a written address of the preliminary objection.  After hearing both parties in respect of the preliminary objection, the trial court per Peter C. Umeadi J. rendered a ruling on the 12th November 2010 dismissing the preliminary objection for lack of merit.
Dissatisfied with this ruling the defendants commenced this appeal No. CA/E/04/2011 by filing a notice of appeal on the 24th November 2010 on four grounds.  Both sides have filed, exchanged and adopted their respective briefs of argument.  The appellants filed the appellant’s brief of argument and an appellant’s reply brief.  The respondent filed his brief of argument.  The appellant raised the following issues for determination:
1. Whether or not the statement of claim dated the 16th day of June 2010 and filed on same date as settled disclosed a reasonable cause of action.
2. Is the claim or relief in paragraph 30(b) of the statement of claim not statute barred in view of Sections 12(c) and 20(1) of the Actions Law, Cap 3, Laws of Anambra State 1991?
3.  Is an action lacking a reasonable cause of action and which is also statute barred not brought in abuse of the court or judicial process?
The respondent in his brief of argument adopted the issues for determination raised by the appellants. I equally adopt the same issues as framed by the appellant.
ISSUE 1:
An objection that  a statement of claim discloses no reasonable cause of action can be raised, in limine, after  the filing of a statement of claim but before the filing of a statement of defence as a demurrer. It can also be raised after the defendant has filed a statement of  defence as an objection in lieu of demurrer. It is not premature to raise it at any of the above stages.
Since the Trial Court failed to answer the question, it has now been  brought  before us.
I will now find out if the facts in the statement of claim disclose a cause of action. The facts in the statement of claim state that in 1994, the 2nd appellant and some principal members of the Umuyanwanne kindred of  Umuonoholisa Ogbetiti village of Odekpe approached the respondent to buy two acres of land consisting of 8 plots each. It was also agreed by both sides that the purchase price shall be paid by the plaintiff in installments and upon completion of payment of the full purchase price, the defendant’s family shall execute a deed of Assignment of the land to the plaintiff.  He fully and completely paid the defendant’s family the purchase price of the two acres of land.  The survey of the said land in the presence of both parties revealed that the defendants said land was not up to two acres.  So the defendants were only able to give him one acre of land and promised refunding the purchase price of the second acre of land to the plaintiff.  
The plaintiff in 1995 took possession of the one acre sold to him and has remained in possession since then, exercising acts of ownership of the  land like leasing the land to seasonal farmers.   The defendant’s family have neglected or failed or refused to execute the said deed of assignment in his favour and refund the purchase price paid for the second acre of land that turned out to be non-existent.
On 12th January 2009, the defendants went into the said land and put palm fronds thereon, which act under Odekpe custom is indicative that the person who put the palm fronds is disputing over title to the said land.  The 2nd appellant stated that their act is based on the fact that even though the family had sold the land to the respondent, the family had not formally conveyed the land to him.  The appellants also insist that the sale of the one acre should be renegotiated so that the respondent can repurchase same at a higher price because the price of land in the area has appreciated.  It is on the basis of these facts that the appellant claimed for the reliefs in the statement of claim.
Let me now consider the contention that since the facts in the statement of claim show that the deed of assignment had not been executed, there is no cause of action for declaration of entitlement to the certificate of occupancy to the suit land.  It is clear from the above facts as contained in the statement of claim that both parties agree that upon completion of full payment, the appellants shall execute a deed of assignment of the right occupancy to the respondent.  They have failed to do so.
The respondent, by virtue of the sale agreement, the complete payment of the purchase price and his possession of the land has an equitable title to the right of occupancy of the land which entitles him to claim for the equitable relief of specific performance compelling the appellants to specifically perform their obligation under the agreement by executing the deed of assignment. As this Court held in ADEWUYI & ORS V. ODUKWE (2000) LPELR 6875,  it is settled law that the payment of purchase price coupled with being put in possession confers equitable title which enables a purchaser in possession to call for a document of title where applicable.
 Such title as acquired is capable of defeating the claim of subsequent purchasers or other adverse dealing with the land by the vendor. A declaration of entitlement to the certificate of occupancy of the suit land is not supported by the facts in the statement of claim. The facts in the statement of claim state that the deed of assignment had not been executed.  The implication of this fact is that the legal title to the right of occupancy had not been perfected or conveyed.  This is what will entitle the plaintiff to the certificate of occupancy.  It is the deed of assignment that would legally transfer the right of occupancy from the appellants to the respondent.  This stage of the agreement to sell the suitland was not fulfilled because the appellants refused to perform their obligation to execute the deed of assignment.  The legal title to the right of occupancy had not vested in the respondent
It is clear from the agreement of the parties to execute a deed of assignment that the land was not sold under customary law but under the statute law or the English -type law.  This position is further strengthened by the fact that there is no averment in the statement of claim that the suitland was sold in accordance with any rule of customary law.

To be continued