O. E. Odum V. U. K. Uganden & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A
This is an appeal against the judgment of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/47/2000, delivered by Hon. Justice M. B. D. Mensem (as he was then was) on the 28th October 2002, whereby the learned trial judge dismissed the reliefs sought by the Appellant.
The Appellant’s claim as per further Amended Statement of claim was for:-
i. A declaration that he is the lawful allottee of Plot No.1277 MNDP Zone A6, Abuja;
ii. A declaration that the Respondents are trespassers on the said land
iii. A declaration that the buildings on the said piece of land belong to the Appellant, based on the principle of “quid quid plantatur, solo solo cedit”
iv. N1,000,000.00 (One Million naira, only) as damages for trespass against all the Respondents, jointly and severally.
The facts of the case as can be deduced from the pleadings and evidence adduced before the trial court was that, Plot No.1277 MNDP Zone A6, Abuja, was legitimately allocated to the Appellant by the Hon. Minister of the F.C.T. with statutory Right of Occupancy No.1M 1173 since 29th March 1983. Sometime in 1991, the Appellant was seriously in need of money. In consequence, he approached the 1st Respondent for some monetary assistance, that resulted in the loan of N70,000.00 (Seventy Thousand Naira Only) from his friend, the 1st Respondent. He however, directed that the N70, 000,00 borrowed, should be deducted from the proceeds when the said plot of land is sold and he promptly handed over the title document on the land to the 1st Respondent. It was the Appellant’s case that the land was never sold. He further contended that the 1st Respondent collaborated with the other Respondents and developed the said land without his consent and/or authorization and that he had not by sale assigned his interest on the property to any of the Respondents or authorized the Respondents to develop the said land but that the sum of N70, 000,00 collected from the 1st Respondent was a loan.
For the Respondents, however, it is their contention that sometime in 1990, the Appellant requested the Respondent to search for a buyer for his Plot No.1277 in Zone A6, Abuja. The 1st Respondent introduced Major D. Wende, the 3rd Respondent to the Appellant. After some negotiations between the Appellant and the 3rd Respondent, the Appellant sold the said plot of land to the 3rd Respondent, who immediately took possession and commenced development. However, the Appellant, vide a letter dated 15th October 1991, said that his children had rejected his transactions with the 3rd Respondent i.e. he was no longer interested in the sale of the piece of land and wanted to refund the money i.e. the Seventy thousand naira (N70,000.00) and other Interests that may have accrued to the 3rd Respondent. The 1st Respondent did not respond to this letter and nothing was done about the matter until 1998 when this suit was filed at the trial court.
The 3rd Respondent, Major D. Wende, was by a motion dated 12th March 2001, and granted on 3rd May 2001, joined as the 3rd Defendant at the trial court. He neither filed any Statement of Defence, nor did he personally appear in court to testify, despite several adjournments to enable him put up his defence, although he entered appearance on the 5th of June 2002.
At the trial, the Appellant testified as PW1 and the only witness in the matter. The 1st Respondent testified as the only defence witness. In a considered judgment delivered on the 28th October, 2002, the learned trial judge had this to say in dismissing the claim of the Appellant;
Whereas it is true that the plaintiff is the lawful allottee of Plot No.1277 MNDP Zone A6, Abuja, he is entitled to no declaration in his favour against the defendants either jointly or severally. He had since 1991, parted with his interest in the said land for a consideration of the sum of N70,000.00 which he collected and in turn surrendered his title document and his interest in the land.
The purchaser of the land, in the person of Major D. Wende (Rtd) is therefore the rightful owner of the said plot of land and cannot by any stretch of imagination be said to be a trespasser.
Accordingly, the plaintiff has suffered no damages for which an award of N1,000,000.00 (One million naira) should be made as claimed.
The Appellant is dissatisfied with the said judgment and appealed to this court, vide a Notice of Appeal dated 13/11/02; The Appellant filed an Amended Notice of Appeal on 9th March, 2003 and was deemed properly filed by order of court on the on the 29th April, 2004.
The Grounds of Appeal, without their particulars are hereby reproduced:
GROUNDS OF APPEAL:
- The decision of the learned trial judge is against the weight of evidence adduced at the trial.
- The learned trial judge erred in law by making a declaration of ownership of land in favour of the 3rd Respondent.
In compliance with the Rules and Practice of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Charles Ikenna Okoye Esq., two issues were formulated for determination of the appeal, namely;
I. Whether the decision of the learned trial judge is against the weight of evidence adduced at the trial.
II. Whether the 3rd defendant, having not filed a counter claim is entitled to any declaration in his favour.
By a motion on notice filed on the 2nd March, 2005, the Respondents sought for the leave of the court to raise and canvass fresh issue of law to the effect that the Appellant’s suit at the trial court with Suit No.FCT/HC/CV/47/98 the subject of this appeal is statute barred by reason of the application of Section 7 of the Limitation Act, Cap 522 LFN 1990. Leave was thereby granted to the Respondents to argue the issue of statute bar and same argument was incorporated into the Respondents’ brief of argument.
The Respondents’ brief, settled by Mrs. J. D. Adesina formulated a lone issue for determination, to wit;
“Did the Appellant make any case against the Respondents at the trial court to justify judgment in his favour?”
At the hearing of the appeal, learned counsel for the Appellant, Charles Ikenna Esq., adopted and relied on the Appellant’s brief of Argument dated and filed 8th March 2005 and the reply brief filed on the 17th May, 2005 and urged the court to allow the appeal and set aside the judgment of the trial court.
Mrs. J. O. Adesina, for the Respondents, adopted and relied on the Respondents brief of argument dated and filed on the 2nd March 2005 as their argument in this appeal and urged the court to dismiss the appeal. Having considered the two issues formulated for determination by the Appellant’s counsel and the lone issue formulated by the Respondents’ counsel, it is my humble opinion that the lone issue formulated by the Respondents could be subsumed into the two issues formulated by the Appellant as in con, they argue the same issue. Before I proceed to consider the issues for determination, it is pertinent at this juncture to consider the issue of Statute of Limitation raised by the Respondents in its brief of argument with the leave of this court, as a determination of this issue if successful will dispose of the entire appeal before this court.
Arguing this issue, learned counsel for the Respondents submitted that the transaction between the parties took place between 1990 and 1991, and from the Appellant’s claim, the claim is founded upon contract and tort. It is his view that the declaratory claim is founded on the contract of sale of land an allegation that the contract is inchoate. It is submitted that by Section 7 of the Limitation Act CAPS 22 LFN 1990, an action challenging the validity or otherwise of a contract must be commenced within 6 years of the breach or complaint about the validity of the contract. The case of ADEKOYA VS FHA (2000 14 NWLR (pt.552) page 215 at 221 paragraphs C-D was referred to. It is also submitted that, from the Appellant’s evidence and by the repudiation letter Exhibit P2, the Appellant had challenged the contract of sale by 15th October, 1991 and that time started to run from 16th October 1991 citing in support the case of AROWOLO VS FABIYI (2002) 4 NWLR (pt.757) page 356 at 383.
It is also further submitted that, a cursory look at page 1 of the record will show that this suit was filed on the 24th February 1998. That this action must therefore be filed latest by 15th October 1997, in order to be validly filed within time, citing also the case of TEXACO PANAMA INC VS SHELL PDCN LTD (2002) 5 NWLR (Pt.759) pg 209 at 241.
It is therefore submitted that, it is settled law that an action filed out of time is incompetent, referring to the cases of ABUBAKAR VS GOVERNOR, GOMBE STATE. (2002) 17 NWLR (Part 797) page 533 at 566; TEXACO PANAMA INC VS SHELL PDCN LTD supra. It is also the view of learned counsel that, the second leg of the claims of the Appellant at the trial is on the tort of trespass and submitted that under Section 7(4) of the Limitations Act, the action ought to have been filed by 15th October 1995, but it was filed on 24th February 1998, which makes the claim incompetent, citing in support the case of ABUBAKAR VS GOVERNOR, GOMBE STATE, supra page 566.
The learned counsel for the Respondents urges this Appeal to be dismissed as being incompetent.
In his reply brief, learned counsel for the Appellant submitted that it is trite law that in determining whether a cause of action is statute barred, as in the instant case, the court looks at the Writ of Summons and Statement of Claim alleging when the wrong which gave the Appellant a cause of action was committed and compare that date with the date on which the writ was filed and submitted that where the action is filed after the period allowed by the Limitations Law, the action is then said to be statute barred, citing the case of GULF OIL CO (NIG) LTD VS OLUBA (2002) 12 NWLR (PT 780) 92 at 108.
Learned counsel submitted that the suit was commenced on the 24th February 1998 and that the Appellant was disposed of his land, plot No 1277, Zone A6 Abuja by the Respondents between 1990 and 1991. It is submitted that the case of the Appellant has always been to recover the land and hence the declaratory reliefs sought therein by the Appellant. Learned counsel referred to the evidence of the Appellant wherein he asked court to help him recover his document which have been held for 12 years and built illegal structures on the land and submitted that actions for recovery of land is strictly governed by Section 15 of the Limitation Act Cap 522 LFN, 1990 which provides In Section 15(2) (a) that right of action extinguishes at the expiration of 12 years from the date on which the right of action accrued. It is the view of learned counsel that since the right of action accrued between 1990 and 1991, the statutory 12 years have not elapsed by 28th February 1998 when the action was commenced, citing in support the case of ALLEN VS ODUBEKO (1997) 5 NWLR (PT.506) 368 at 645.
Learned counsel further submitted that the claim for damages is a consequential relief dependent upon the success of the claims for a declaration that the Appellant is the lawful allottee of plot No 1277 MNDP Zone A6 Abuja, and that the Respondents are trespassers and that the buildings belong to the Appellant based on the principle of quid quid plantatur solo solo cedit. It is therefore submitted that the Appellant’s case is out side contract of sale and tort of trespass but solely on the recovery of land. It is therefore submitted that Section 7 of the Limitation Act is not applicable and should be discountenanced by the court as exhibit P2 relied upon by the Respondents does not in any way command document of sale of plot of No 1277 MNDP Zone A6 Abuja, and the court was urged to discountenance this submission by the Respondent.
Appellant’s claims are as follows:-
I. A declaration that he is the lawful allottee of Plot No.1277 MNDP Zone A6, Abuja;
II. A declaration that the Respondents are trespassers on the said land.
III. A declaration that the buildings on the said piece of land belong (sic) to the Appellant, based on the principle of liquid quid plantatur, solo solo cedit.
IV. N1,000,000.00 (One Million Naira,) only as damages for trespass against all the Respondents, jointly and severally.
The law is that the period of limitation in any statute of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed – per Mohammed, JSC; in the case MR. POPOOLA ELABANJO & ANOR VS CHIEF (MRS.) GANIAT DAWODU (2006) All FWLR (Pt.328) 604 at 646. The effect of a statute of limitation is that it removes the right to action, the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce.
I do not understand the plaintiff as claiming the reliefs set out above pursuant to any alleged contract between him and the defendants or any of them. A perusal of the amended statement of claim also shows that the case of the plaintiff is that though he initially instructed the 1st Respondent to help in disposing the land, and to off set the loan of N70,000.00 advanced to him from the money paid therefor by the purchaser, he i.e. Appellant, resiled from the arrangement by writing a letter dated 15/10/1991 on getting to Lagos due to pressure from members of his immediate family. Depicting that he did not authorize the sale of his land, the Appellant in the circumstances seek for the reliefs earlier set out above. On the face of the reliefs and the averments in the amended statement of claim, I am of the firm view that the Appellant’s claims are for recovery of land. Therefore it is the period of limitation as applicable to recovery of land that applies. The Appellant It is to be noted did not plead when the land in respect of which he seeks declaratory reliefs and damages for trespass was taken over by the defendants or any of them. In the circumstances to determine if the action is statute barred, it is the date that the particular defendant in this case the Respondent now possessed of the land got the rand as shown by the evidence adduced that has to be compared with the date of the filing of the case for the purpose of determining whether or not the said action is statute barred.
In the instant case, the cause of action accrued when the Appellant wrote a renunciation letter to the 1st Respondent on the 15th October, 1991 and time begins to run as from that date, the 15th October, 1991. It is also clear from the writ of summons and the statement of claim that the suit was filed on the 28th February, 1998.
Section 15(2) (a) of the limitation Act provides as follows:-
“(2) No action by a person to recover land-
(a) shall, subject to paragraph (b) of this subsection, be brought after the expiration of twelve years from the date on which the right of action accrued to the person brining it or, if it first accrued to some person through whom the claims, to that person”
The section clearly provides that the right of action for recovery of land extinguishes at the expiration of 12 years from the date on which the cause of action accrued. Since the right of action accrued in 1991, the statutory 12 years have not elapsed by 28th February 1998 when the action was commenced. See ALLEN VS ODUBEKO (1997) 5 NWLR (PT.506) 638. This action is therefore not statute barred. In arguing issue I, the Appellant’s counsel submitted that the crux of the Appellant contention at the trial is that the 1st Respondent collaborated with the other Respondents to develop his piece of land at Plot NO.1277 MNDP Zone A6, Abuja, without his consent and that he had not by sale assigned his interest on the property to the Respondents and that the sum of N70,000.00 collected from the 1st Respondent was a loan.
Learned counsel referred to the judgment of the trial court on the issue:-
“whether the sum of N70,000.00 collected by the plaintiff was the purchase price of his land or a loan advanced to him by the 1st Defendant in anticipation of the sale of the land and Exhibit P2, the letter written by the Appellant to the 1st Respondent renouncing the earlier instruction given to him to sale the land” and submitted that the learned trial judge solely anchored her findings, on Exhibit P2, without reference to other cogent and credible evidence adduced by the parties. It is submitted that the primary duty of the trial judge is to fully consider, appraise and evaluate all the
evidence of the parties before concluding the case against as the case may be citing in aid the cases of MOGAJI VS ODOFIN (1978) 4SC 91; and OLADEHEIN VS CONTINENTAL ILE MILLS LTD (1078) 2 SC 28.
It is also submitted that the main ground upon which the learned trial judge found against the Appellant and dismissed his case is on alleged contradictions referred to in the judgment and which contradictions were not specified in the record.
Learned counsel referred to the evidence of DW1, the 1st Respondent in chief and under cross examination and submitted that when a witness stated that he was not following details, then such testimony could not be said to be the testimony of an eye witness who knew for what purpose the N70,000.00 was meant for. He urged the court to hold that Major D. Wende never paid the sum to the Appellant with respect to the said transaction or any other matter.
It is the view of learned counsel that such evidence is speculative and the learned trial judge failed to make a finding in that regard. That even if contradictions exist in the evidence of the Appellant and Exhibit P2, such contradictions are minor and insignificant and ought to be ignored by the court, citing in aid the cases of DOUSEI VS OYENOLA (1998) 8 NWLR (PT.563) 601 at 617-8; AKINTOLA VS BALOGUN (2000) 1 NWLR (PT 642) 532 at 548-9.
It is also the view of learned counsel that contradictions in the evidence of a party will not relieve the court of the duty of considering the evidence of both sides before reaching its decision.
It is also submitted that restatement or summary of the evidence cannot take the place of evaluation of evidence, once evaluation commands the assessment of the evidence so as to give value or quality to it. The following cases were referred to; IMMAH VS OKOGBE (1993) 9 NWLR (PT316) is at 177 and ONWUKA VS EDIALA (1989) 1 NWLR (PT.96) 182, 208. It is further submitted that the learned trial judge having failed to properly appraise the issues before it, the key issues remain unresolved and the result is that the findings of the trial court and its conclusions were perversed and urged the court to answer issue 1 in the affirmative.
On issue No.2, whether the 3rd Respondent having not filed a counter claim is entitled to any declaration in his favour, the Appellant’s counsel submitted that the trial court wrongly drove the Appellant from the temple of justice when it delivered title to plot No.1277 MNDP Zone A6 to the 3rd Respondent. It is submitted that the 3rd Respondent by reason of joinder application became a necessary party in the matter and was served with the processes of the joinder. It is thus submitted that the finding of the learned trial judge that the said plot of land belongs to the 3rd Respondent is in all intent and purposes declaratory, is prejudicial most importantly when the 3rd Respondent did not file any pleading nor testified on the matter and he has not counter claimed for title.
He further submitted that where the plaintiff fails to discharge the onus of proving his title, title should never be decreed to Defendant, he not having sought the declaration. The cases of H.N.O. AWOYEGBE & ANOR vs CHIEF J. E. OGBEIDE (1988) 3 SCNJ 99 at 114-115 SC; KODILINYE VS MBANEFO ODU (1935) 2 WACA 336, were referred to. It is his view that the learned trial judge overlooked a fundamental principle of our adjudication process that a court hears no prayers than those before it.
It is also submitted that what the trial judge successfully did was to declare title to land to the 3rd Respondent using Exhibit P2 an unregistered document, citing in aid the case of ORIANWO VS ORIANWO (2001) 5 NWLR (pt.707) CA 516 at 522 paragraph F. Learned counsel therefore submitted that it is trite law that where a defendant, well aware of the pending suit against him but exercised the right of not putting up his defence, it is an irrebutable admission of the averments and testimonies of the plaintiff, and he urges the honourable court to allow the appeal and set aside the judgment of the lower court.
In her response, learned counsel for the Respondents, Mrs. J. D. Adesina, submitted that the trial court was right in its decision. It is submitted that in determining whether or not the Appellant made any case against the Respondents at the trial court to justify judgment in his favour, in a declaratory order or relief, such as the claim of the Appellant, the burden placed on him is to succeed by the preponderance of evidence and on the strength of his own case and not on the weakness of the Defendant’s case, especially where the defendant has not set up a counter claim, Citing in support the case ODUWOLE VS LSDPC (2004) 9 NWLR part 878, page 382 at 401.
Learned counsel reviewed the evidence of the Appellant as adduced before the trial court and that of the 1stRespondent and submitted that, to be entitled to judgment the Appellant has the burden of proving, by cogent and credible evidence, that he is entitled to the land and not rely on the weakness of the Defendant’s case to prove his claim. Citing also the case of OLOKOTINHIN VS SARUMI (2002) 13 NWLR (pt.784) pg 307 at 314-315. paragraphs A-C. Learned counsel further submitted that the learned trial judge made a finding that the N70,000.00 was actually the consideration for the sale of the land and that the reason why the Appellant is now renouncing the transaction is because “my children rejected the transaction i made with the 1st defendant because the purchase money was too low.” It is submitted that it is trite law that consideration need not be adequate. The case of OKAFOR VS IGWILO (1997) 11 NWLR (pt.529) (sic) (pt. 527) page 36 at 53 paragraphs C-D was cited in support.
It is the view of the learned counsel that since the Appellant falled to discharge the duty placed upon him by law, the learned trial judge was right in dismissing the Appellant’s claim. Citing also the case of ONWUCHEKWA VS EZEOGU (2002) 18 NWLR (Pt.700) page 333 at 346.
Issue 1 for determination as formulated by the Appellant’s counsel is, whether the decision of the learned trial judge is against the weight of evidence adduced at the trial. In determining this issue, recourse must be made to the claim of the Appellant, the evidence adduced and exhibits tendered before the trial court and the finding of the learned trial judge. The Appellant’s claim inter alia was for a declaration that he is the lawful allottee of plot No 1277 MNDP, Zone A6 Abuja and a declaration that the Respondents are trespassers and that the building on the said plot of land belongs to him. He also claims damages for trespass. He testified as follows as contained from pages 53-55 of the record of appeal:-
“I know the 1st Defendant in this suit as a Civil Servant with the FCDA about ten years ago. I do not know any other person than Ugandem; he was the Administrator, FCDA. I met him sometime between 1991 and 1992 and informed him I wanted to sell a piece of land in Maitama Plot 1277 MNOP Maitama. I told him I wanted a loan of N70,000.00 (Seventy thousand Naira) and that when the land is sold, the said amount will be deducted. He gave me the N70,000.00 and collected all my documents about the land all in my name…My children rejected the transaction I made with the 1st defendant and sent me packing to the village. I phoned the 1st Defendant to inform him of my children objection and wrote a cheque to refund the N70,000.00. On the 15/10/91, I wrote to Ugandem rejecting the transaction.”
He stated under cross examination, “I am the rightful owner of the said plot, Chief O.E. Odium. Anything belong to me is the properly of my family, my children take over from me, they inherit what belongs to me. ”
The Appellant tendered Exhibits P1 and P2 in evidence. Exhibit P1 is a photocopy of the statutory Right of Occupancy in respect of the said plot of land while Exhibit P2 is letter written by the Appellant dated 15th/10/91 to the 1st Respondent renouncing the sale agreement.
The 1st Respondent is the sole witness for the defence. He testified to the effect that, see pages 57-58 of the record of appeal i know the plaintiff. He is Chief D.E. Odium…..sometimes in 1990 or 1991; he had asked me as a friendly if I know some one whom would be able to purchase his plot because at that time, the MFCT was revoking plots which had remained for some years without development. He informed me he had no money to develop and his plot might be revoked along with others. He requested me to find some one who would be able to develop. I passed words round and one Rid Major Dominic Wendy indicated interest in the plot and I introduced the two to each other. They met, negotiated and agree on the price. I think they agreed on N70,000.00 for the plot. He collected his money and was grateful and he left for Lagos. One month later, he telephoned to say his children felt the amount was low and I advised him to return the money and collect his documents from the purchaser, I heard nothing thereafter, until after one year when he wrote a letter to me complaining about the pressure on him by members of his family and children..”
After a careful consideration of the evidence of the Appellant and the 1st Respondent along with the exhibits tendered in evidence before the court, the learned trial judge came to the conclusion that the resolution of the issue in dispute has been amply simplified by Exhibit P2 particularly paragraphs 2 and 3 thereof and came to the conclusion that the sum of N70,000.00 collected by the Appellant was the purchase price of his land and not loan granted to him by the 1st Respondent as stated in his evidence in chief.
Paragraphs 2 and 3 of Exhibit P2 states as follows:-
“When I left Abuja last year after my land deal of my plot No.1277 at MNOP Zone A6 FCCV vide Certificate of Occupancy FCT/ABU 1M 1173 for which deal I was paid, my children now grown ups completely objected and rejected the deal I contracted at ABUJA. They immediately requested me to cancel the agreement package forthwith. I had then the single honour to Inform you by telephone immediately on this matter. Although you did not object to the decision or the idea for me to refund the paid amount – my conscience as a Christian and you CK as my bosom friend forced me NOT to cancel the deal which the children felt was rather very unfair.
I have been under duress and heavy pressure of my eight children and junior brothers to plead with you as a respectable friend of the family to cancel the deal as you1 Mr. C.K. Ugandan the true friend of Chief O. E. Odum is NOT directly the PURCHASER of the land. They maintain that I should refund the money previously paid to me with all the additional accruing interest computed at the estimated Bank interest OR face the wrath of these young men.”
It is the primary function of the trial court to hear evidence, to evaluate that evidence, to believe or disbelieve witness who testified and to decide the merit of the case based on the findings. However, where the trial court fails in its duty to evaluate the evidence before it, or arrives at a conclusion which will be regarded as perverse, then it is the duty of the Appellate court carry out that function. In the instant case, the learned trial judge properly appraised and evaluated the evidence as adduced before it along with the Exhibits and came to the conclusion that there was contradiction in the testimony of the Appellant and Exhibit P2 which he authored. While in his evidence in chief, the Appellant denied ever selling the plot of land in dispute to the 3rd Respondent and claimed that the N70,000.00 he collected from the 1st Respondent was a loan, Exhibit P2 which he authored talked about a land deal for which he was paid, but his children now grown ups completely objected and rejected the deal he contracted at Abuja. By Section 132(1) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990, no oral or extraneous evidence is admissible to contradict the contents of documentary evidence. See USN LTD vs. OZIGI (1994) 3 NWLR (PT 333) 3; ODUWOLE VS L.S.D.P.C. (2004) 9 NWLR (PT878) 382; ASSAM VS OKPOSIN (2000) 10 NWLR (PT.676) 659 and OMONIYI vs ALASI (2004) 6 NWLR (PT 870) 5510, In the instant case, oral evidence of the Appellant is clearly in conflict with Exhibit P2, consequently the findings of fact by the trial court are adequately supported by evidence on record and they were neither perverse nor reached as a result of a wrong approach to the evidence or any principle of substantive law or procedure. This court will not therefore interfere with the findings of fact. See ALIBE VS YARO (2002) 1 NWLR (PT 747) 238; AKPAN VS OTONG (1996) 10 NWLR (PT.476) 108.
It is trite that a plaintiff must succeed or fail on the strength of his case and the evidence which he brought to court and weakness in the defence notwithstanding. Thus, no matter how manifestly unreliable or weak the case of the defence may be, for the plaintiff to succeed in his claim has the primary function of convincing the court that he has a good case. Whether a defendant adduces or does not adduce any evidence at the trial, that fundamental and primary burden which the law at the outset places on a plaintiff who wishes to succeed in his claim remains. See UBE VS YARO (supra). The finding of the trial court is not perverse. This issue is resolved against the Appellant and in favour of the Respondents. It is not the function of Appellate court to disturb the findings of fact of the trial court unless such findings are shown to be unreasonable or perverse and not as a result of a proper exercise of discretion.
On the 2nd issue for determination, that is whether the 3rd Defendant having not filed a counter claim is entitled to any declaration in his favour.
The learned trial judge in his finding that the Appellant had since parted with his interest in the said land for a consideration of the sum of N70,000.00 which he collected and in turn surrendered his title documents and his interest in the land, the learned trial judge find the purchaser of the land in the person of Major D. Wende (RTD) as the rightful owner of the said plot of land. Learned counsel for the Appellant contended that such finding is prejudicial most importantly when the 3rd Respondent did not file any pleadings nor testified in the matter, meaning he did not counter claim for title.
In the instant ease, the Appellant as plaintiff seeks before the lower court for declaratory relief. It is trite that where a party seeks a declaratory order or relief, the burden placed on him is to succeed by the preponderance of evidence and on the strength of his own case, and not on the weakness of the defendant’s case especially where the defendant has not set up a counter claim. Where the defendant sets up a counter claim for a declarative relief, he has to succeed on the strength of his own case and not on the weakness of the plaintiffs defence to the counter claim; see ODUWOLE VB LSDPC (supra); KODILINYE VB ODU (1935) 2 WACA 336; and TEMIRE VS AWANI (2001) 12 NWLR (PT 728) 726.
The grant or refusal of a declaratory relief is at the discretion of the court acting judicially and judiciously. The judicial discretion is very wide and it is only limited by the discretion of the court itself. See EFENDU VB EKWOABA (1995) 3 NWLR (PT 386) 704; and KYARI V BALKALI (2001) 11 NWLR (PT 724) 412.
In the instant case, it is contended that the lower court declared title to be in the 3rd defendant who did not counter claim for such a relief, nay did not even file pleading in the case talk less participating therein, I will like to consider the same in the light of whether or not the instant action was one in which the claim for trespass put the title of parties in issue. It must be noted first that a claim in trespass is rooted in exclusive possession. Therefore a plaintiff must prove exclusive possession or right to such possession of land in dispute. See OSAYEMWENRE AMAYA VS ASAYENDE ERIMWINGBOVO (2006) All FWLR (PT.318) 612 at 622. And where the Issue is whether the plaintiff is the owner of land which is shown to be in the possession of the defendant, then the burden is on the plaintiff to establish a better title to the land. This is because once title has been proved, the person having title is presumed to be in lawful possession as a person cannot acquire possession by his act of trespass. See CHIEF N.T. OKOKO VS MARK DAKOLO (2006) All FWLR (PT.336) 201. The Appellant given the circumstances of this case can only sustain his claim for trespass and damages therefor on establishing that he has a better title to the land than the 3rd Respondent who from the evidence and finding of the lower court had bought and paid for the land. Title was in issue in this case and the pronouncement of the lower court that the 3rd Respondent has title to the land was not a declaration of title in his favour but a finding that necessarily had to be made in denying the Appellant’s claims which were all hinged on his establishing his title to the land vis-a-vis the person in actual possession. This issue is also resolved against the Appellant and in favour of the Respondent.
Based on the foregoing, the conclusion therefore, that I have reached in this appeal, is that the appeal in its entirety lacks merit and it is hereby dismissed.
I make no order as to costs.
Other Citations: (2009)LCN/3083(CA)
