Adetoun Olukoya Vs Isamotu A. Ashiru (2006)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The appeal herein emanates from a land dispute. It is against the judgment of the Court of Appeal (hereinafter referred to as the court below) which affirmed the decision of the Ibadan High Court. The respondent herein was the plaintiff at the said High Court while the appellant was defendant. As between these two parties a dispute arose when the defendant sought to commence building on the land and found the plaintiff’s agent and lessee in possession. A fracas ensued with the result that both parties (who in the rest of this Judgment I shall refer to as plaintiff and defendant simpliciter respectively) ended up at the Police Station.

Following that incident the plaintiff instituted this suit. In her Amended statement of claim, the plaintiff claimed for declaration of title to land as follows:

1. A declaration that the plaintiff is the person entitled to a grant to statutory right of occupancy to the piece of land situate at Sumbare Layout Ijebu Road, Oyo State of Nigeria and covered by instruments (1) dated 13th day of February, 1978 registered and numbered 53 at page 53 in volume 235 of the lands registry in the office at Ibadan. (2) dated the 17th day of September, 1969 and registered as number 33 in volume 1153 of the lands registry in the office at lbadan.
2. N5,000 being special and general damages for trespass committed on the said piece of land sometimes between July and August 1984 by the defendant, his servants and agents.
3. Injunction to restrain the defendant his servants and or agents or anybody claiming through or in trust for him from further entry and or committing further acts of trespass on the said land.

In response, the defendant filed a statement of defence and counter-claim, also laying claim to the land in dispute. In proof of her title to the land the plaintiff led documentary evidence of conveyances duly registered conveying the land to her predecessor in title. In addition, she relied on acts of ownership on the land over a long period of time.

On the other hand, the defendant gave traditional historical evidence of his to support his case. It is pertinent however to point out that there is no dispute as to the identity of the land.

Decision of the High Court.

The judgment of the trial High Court is at pages 123 to 144 of the record. After considering the evidence adduced by both parties in which the plaintiff called eight witnesses and the defendant called nine witnesses for the defence, the learned trial Judge, Ajileye, J, accepted the evidence of the plaintiff and gave her judgment. In doing so, he made certain significant findings of fact, to wit:

1. That the land was originally owned by the Awojobi Kure family.
2. That the Awojobi Kure family had been selling their land to third parties when DW9 (now head of the Awojobi Kure family) was away in Ghana. Among those selling on behalf of the family were Gbadamosi Adeoye (DW9’s father), Yinusa Akanji (DW9’s brother) Braimoh Adigun (family member) and Lasisi Amoo.
3. That the plaintiff had exercised sufficient acts of ownership on the land to prove title, while there was no evidence that the defendant had performed any acts of ownership on the land.
4. That the documents of title produced in evidence by the plaintiff were registered prior to the defendants’ documents of title and as such the plaintiff had a priority in interest.

Concluding his judgment, the learned trial Judge held, inter alia, as follows:

“From the evidence, oral and documentary evidence before me, S.A. Olukoya died on 26th July, 1968. Exhibit B was purported to have been signed by him on 22/8/68 nearly a month after his death; I hold that exhibit B in the circumstances is fraudulently procured, not by the defendant but by the so-called purchasers, namely, Omotayo Adeoye and Lajide Adesola Adewunmi. Significantly, it is this fraudulent purchaser that is, Layide Adesola Adewunmi, who set in motion a fraudulent chain of sales that culminated in the purchase by the defendant, of the land in dispute. Layide Adesola Adewunmi executed exh. P (a deed of conveyance) in favour of Rasaki Adisa, who in turn joined with his own father Wahabi Latunji Layiwola to sell to the defendant. Exhibit P, having been based on exhibit B – fraudulently procured, is itself a fraudulent conveyance and is hereby declared a nullity.

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In sum, I hold that the plaintiff’s case is well founded. I hereby declare that she is entitled to grant of statutory right of occupancy of the land in dispute, whose deeds of conveyances had been registered, as claimed in her writ of summons. I grant her the sum of N1,000 as general damages. No claim for special damage by her is proved to my satisfaction and none is allowed.”

The learned trial Judge in addition dismissed the defendant’s counter claim. Aggrieved by the said decision, the defendant as appellant, appealed to the court below. The ground of appeal lodged by the defendant to the court below was within a relatively narrow compass. Simply put, it reads: Whether on the evidence before the court the plaintiff traced her title to the Awojobi Kure family who had been selling land and D.W 9 was not challenged.

In its considered judgment spanning pages 176 to 189 of the record, the court, below affirmed the judgment of the trial court. One of the issues raised by the defendant/appellant against the trial court’s decision is that there was no evidence given by the plaintiff which linked exhibit C (plaintiff/predecessor’s deed of conveyance) to the Awojobi Kure family. The court below rejected this submission, rightly in my view, when it held that although the plaintiff did not put in evidence of the linkage, the evidence establishing such linkage was supplied by the defendant and upon it, the plaintiff could rightly rely. See Akinola v. Oluwo (1962) 2 All NLR 224 at 227, (1962) 1 SCNLR 223. Thus, having linked exhibit C to the Awojobi Kure family, the court below rightly affirmed the trial court’s conveyances of the plaintiff registered before that of the defendant took priority over the defendant’s conveyance. Thus, the court below held that the plaintiff had proved sufficient acts of ownership over the land to establish title.

The lone issue for determination submitted as arising by the plaintiff is:

Whether there was sufficient evidence by the plaintiff to establish a better title to the land in dispute.

The two issues formulated for the determination of this court by the defendant are:

1. Whether or not the Court of Appeal is right to hold that the respondent succeeded in proving her case and that she was entitled to the reliefs claimed.
2. Whether or not priority of title in relation to the conveyances of both parties applies to this case.

After’ dispassionate consideration of the cases argued by the parties, the court below dismissed the defendant’s appeal when it held, infer alia, as follows: –

“As I stated above this appeal raises only one main issue which is that of proof and any resolution of the 1st issue effectually disposed of the 2nd one. In conclusion, I hold that from the totality of the evidence before the learned trial judge and particularly having regard to the fact that

(i) The respondent’s documents of title exhibit “A”, “C” and “D” were registered before those of the appellant – exhibits “P”, “K” and “Q” which, in law, accords priority of title to the respondent. (ii) The failure of the appellant to proffer an answer to the grave allegation of fraudulent procurement of exhibit “P” and

(iii) The evidence from the defence which linked exhibit “C” to the Awojobi – Kure family, he was right in granting the respondent’s claim and dismissing the appellant’s counter-claim. For the foregoing reasons I have no cause to interfere with the judgment of the learned trial judge on the 30/3/87 which is accordingly affirmed. The appeal lacks merit and is accordingly dismissed.”

As my consideration of the plaintiff’s lone issue will suffice to dispose of this appeal, I will proceed to consider it hereunder as follows: There is a plethora of this court’s judgments stating the recognized methods by which a party can prove title to land in dispute. Perhaps, the most prominent of these authorities, Idundun v. Okumagba (1976) 1 NMLR 200 at 210 – 21 is where this court held that ownership of land may be proved in any of the following ways:

(i) By traditional evidence;

(ii) By production of documents of title which are duly authenticated;

(iii) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion thereof.

(iv) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.

In the case herein on appeal, the plaintiff relied for proof of her case on two of the methods of proving title. Firstly she produced documents of title to the land duly registered over 27years ago in 1957. Secondly, she led evidence of undisturbed acts of possession of the land over the said period. In this appeal the trial court had held (for reasons which are unclear) that the original owner of the land was Awojobi Kure family. There is no appeal, against the finding by either party. In the circumstance the onus is on both parties (since there is a counter-claim by the defendant) to link their respective title to the Awojobi Kure family.

The plaintiff on her own behalf put in documentary evidence, to wit: Exhibits A, C and D to prove her root of title. The land had been devised on the plaintiff from her late father vide exhibit D; Exhibit F was the deed of conveyance by which the plaintiff’s father had bought the land in 1957 from one Odubanjo, whereas exhibit C is deed of conveyance by which Odubanjo purchased the land from Olajumoke and Adeniran. There is no issue concerning the authenticity of the respective deeds, certified true copies of which were tendered in evidence. Although exhibit C did not ex-facie state that Olajumoke and Adeniran predecessor’s in title was the Awojobi Kure family, evidence establishing the link was infact given by DW9 – the current head of the Awojobi Kure family. The two courts below consequently found as a fact that the predecessor in title to Olajumoke and Adeniran was the Awojobi Kure family.

The courts reached this finding by relying on the recital in exhibit C which stated the names of the vendors who sold the land in dispute to Olajumoke and Adeniran. The vendors were:

Gbadamosi Adeoye, OyadinaApeke, LayiwolaAdigun, Buraimoh Adigun and Raimi Ajao.

DW9 completed the link of exhibit C to the Awojobi Kure family by giving evidence identifying these persons. He further testified to the effect that while he was away to Ghana some of his family members (ancestors) had been selling parts of the land and that he only returned from Ghana in 1973. This, he emphasised, was after the sale of the land in dispute to Olajumoke and Adeniran in 1957. He admitted that his father had sold part of Awojobi Kure family land in his life time. In his evidence-in-chief and under cross-examination DW9, he added, identified Gbadamosi Adeoyo as his father and also that he was one of the vendors that sold the land in dispute to the plaintiff’s predecessor. Two other vendors identified by DW9 as his ancestors were also held to be members of the Awojobi Kure family namely, Oyadina Apinke and Buraimoh Adigun, adding that:

“Awojobi Kure had male issues. Among them are Oyaseke, Oyasomi Oyaseke begat Oyadina Apinke, Gbadamosi Adeoye. Gbadamosi Adeoye begat me. I became head of family since 1973” Under cross-examination he said:

“I do not know Layiwola Adigun. I know Buraimoh Adigun. He is afe (male) descendant of our family. Braimoh Adigun is the only son of his mother. I do not know Raimi Ajao. My father sold part of Awojobi Kure family land in his life time.”

This evidence supported the plaintiff’s case and could be relied on by her. The law is that in a claim for declaration of title the plaintiff must succeed on the strength of her own case and not on the weakness of the defendant’s case. See Coker v. Ayoade (1966) NMLR 81. In other words, the plaintiff must succeed on the totality of the evidence properly adduced in court. Which in effect means that if the evidence does not prove his case, he will not succeed merely because the defendant’s case is even weaker. What is important, it is contended, is that the evidence has been properly admitted in evidence and once it is properly admitted then either party could apply it in support of his case. Reliance was placed on the following two cases to exemplify this point, viz.

1. Piaro v. Tenalo (1976) 10 NSCC 700; (1976) 12 SC 31 where Obaseki, Ag. JSC said:-

“It is settled law that a plaintiff in a claim for a declaration of title must succeed on the strength of his case and not on the weakness of the defence (i.e his opponent’s case) See Kodilinye v. Mbanefo Odu (1935) 2 WACA 226, Nwanko Udegbe & ors v. Anachuna Nwokafor & 2 ors. (1963) 1 All NLR 418. A plaintiff is however entitled to take advantage of any evidence adduced by the defence which tends to establish his title and support his case see Josiah Akinola v. Fatoyinbo Oluwo (1962) 1 All NLR 224 at 225 “.

2. Odi v. Iyala (2004) 8 NWLR (Pt.875) 283 where Iguh, JSC said at page 315:

“In the present appeal, the plaintiffs/appellants’ case before the trial court failed in toto. In a claim for declaration of title, such as in the case in the present action, the onus is on the plaintiffs to satisfy the court on the evidence produced by them that they are entitled to the declaration sought. To this end they must rely on the strength of their case and not on the weakness of the defendants’ case and if this onus is not discharged, the weakness of the defendants’ case will not help them and the proper judgment will be for the defendants. This general rule is subject to the important qualification that if the defendant’s case supports that of the plaintiff and contains evidence on which the plaintiff may rely on, the plaintiff is fully entitled to make use of such evidence – see too Okafor v. Idigo 15 NSCC 360/SCNLR 481; Frempong v. Brempong (1952) 14 WACA 13; Akinola v. Oluwo (1962) 1 All NLR (Pt.2) 224 at 225; (1962) 1 SCNLR 352.”

Consequently, it was contended, the court below was right to rely on the evidence of DW9 to establish the link between the Awojobi Kure family and the vendors stated in exhibit C as predecessors in title to the plaintiff. Be it noted that as it is not in dispute that the land in dispute is family land and as such, on DW9’s own admission, the land originally vested inter alia in his father (Gbadamosi Adeoye) and Oyadina Apinke. Since by virtue of the recital in exhibit C the plaintiff’s title was infact traced to these two ancestors of the Awojobi – Kure family, the trial court was therefore correct when it held inter alia that:

“While the 9th D.W was in Ghana, most of the land of Awojobi Kure family had been sold to strangers many of who had already built their own. Amongst members of the Awojobi Kure who were selling family land are Gbadamosi Adeoye (9th DW’s father), Yinusa Akanji (9th DW’s brother), Buraimoh Adigun (female descendant of the family) and Lasisi Amoo whose membership is not strictly defined in the evidence. Now Yinusa Akanji who joined to sell the land in dispute to Wahabi Latunji Layiwola, who in turn joined with his son Rasaki to sell the same land to the defendant is the son of Gbadamosi Adeoye. In other words, Yinusa Akanji purported to be selling in 1972 a piece of land which his own father and other members of the family had sold to Odubanjo since 1959.”

The above extract was a specific finding of fact from the notice of appeal from the High Court to the court below where there was no appeal by the defendant against his finding. See the case of Olukoga v. Fatunde (1996) 7 NWLR (Pt.462) 516 for the view that a finding of fact by the trial court not appealed against stands admitted and undisputed. The finding remains binding on the parties and is valid. Hence, this was the established fact before the Court of Appeal when it heard the appeal following which the court also linked exhibit C to the Awojobi Kure family. See page 184 of the record where the court below held thus:

“With respect to the effect of the respondent’s failure to link her title document exhibit C to the family, it is my view that although there was no evidence from the respondent in that respect there is some evidence from the defence which tends to establish that link. The vendor in the agreement for the sale in the recital of exhibit C are Gbadamosi Adeoye, Oyadina Apeke, Layiwola Adigun, Buraimoh Adigun and Raimi Ajao. There is no indication in exhibit C that they were members of the Awojobi Kure Family. The DW9 Alhaji Saibu Gbadamosi who was the head of the family testified to the effect that Gbadamosi Adeoye begat him and that Oyedina Apeke and Buraimoh Adigun were also members of the said family. This evidence shows that the vendors in the sale agreement referred to in exhibit C were members of the Awojobi Kure family.”

From the respondent’s submission at paragraph 5.5 page 5 of his brief, it is clear that his main complaint is against the weight which the court below attached to the evidence of DW9 and recital. There is no challenge in the court below against the recital being sufficient proof of the facts stated therein.

Consequently, it provides conclusive proof of the fact that there was a sale of the land in dispute by these vendors to the plaintiff’s predecessor in title. The defendant has complained that the nature of the sale in the recital was not stated (i.e whether under English law or not, neither is the capacity in which the vendors sold.) While I agree that these issues are irrelevant, what is rendered pertinent is that both DW9 (the current head of the family) and Yinusa Akanji (son of Gbadamosi Adeoye) could only have succeeded to the land in dispute by inheritance from their forefathers, to wit Oyadina Apinke, Gbadamosi Adeoye and Braimoh Adigun. It is these same forefathers, as earlier demonstrated, who joined together in conveying the land to Olajumoke and Adeniran (the plaintiff’s predecessors in title) in 1957. The recital (the authenticity of which was not challenged) is conclusive proof that the sale vested title in Olajumoke and Adeniran. It is irrelevant how it occurred whether by customary law or English law.

In addition and as can be seen, the court below rightly drew inference from the fact that the plaintiff had been exercising maximum acts of ownership over the land for over 27years without any disturbance from the Awojobi Kure family. The court below said:

The learned trial judge accepted these acts of ownership and found that he did not see any evidence of acts of ownership and possession demonstrated by the appellant. These acts of ownership by the respondent without any disturbance from the Awojobi Kure family is another indication that the vendors in the sales agreement referred to in exhibit C were members of the said family.

I therefore agree with the plaintiff that on the evidence before the court, that he (plaintiff) successfully established that Gbadamosi Adeoye, Oyadina Apeke, Buraimoh Adigun who are ancestors of DW9 (the current head of the family) had sold the land in dispute to her predecessor in title in 1957. Whatever right or title the Awojobi Kure family had in the land in dispute had been sold to OIajumoke and Adeniran by their ancestors in 1957. In the circumstances any subsequent sale of the same land by Yinusa Akanji and Lasisi Amoo in 1972on behalf of the Awojobi Kure family is clearly null and void. There was no tight or title which Yinusa Akanji and Lasisi Amoo could sell. The case of Egbuche v. Idigo (1934) N.L.R 140, a case in which the plaintiff’s claim was for declaration of title to land which had previously been sold by their ancestors. The court held:

“That the plaintiff’s ancestors having by an agreement in 1898 divested themselves of all the right and title competent to them had no longer any right or title to the land and their claim for declaration of title should have been refused.”

As I have already pointed out, both parties claimed to have acquired the land in dispute from a common grantor, the Awojobi Kure family. Whereas as in the present case, the two or more competing documents of title upon which parties to a land in dispute rely for their claim of title to such land originated from a common grantor, the doctrine of priorities pursuant to the well recognised maxim, qui prior est tempore, portior est jure, meaning that he who is first has the strongest right, dictates that the first in time takes priority vide Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511.

In the more recent case of Auto v. Ibe (2003) 13 NWLR (Pt. 837) 247 Iguh, JSC restated this basic principle of law thus:

“In this regard, the respondent’s customary right of occupancy in respect of the land in dispute, exhibit F, was issued by the Jalingo Local Government on the 31st October, 1981. Between the years 1981 and 1984, he commenced and completed the erection of a house thereon. On the other hand, the appellant’s customary rights of occupancy, exhibits A and B, were issued by the same Jalingo Local Government on the 5th January, 1983 and 20th February, 1985 respectively.

It is clear from the above facts that even if exhibits A and B were to relate to the land in dispute, the respondent’s title to the land must, in law, take priority over that of the appellant. Besides, it is settled law and in accordance with common sense that after a party has effectively divested himself of his interest in land or – other res, no right naturally vests in him to deal with such land or res any further for, Nemo dat quad non habet, meaning that no one can give that which he does not have. See Okafor Egbuche v. Idigo (1934) 11 N.L.R 140, Adamo Akeju and Another v. Chief Suenu and others (1935) 6 NLR 87; Sanyaolu v. Coker (1983) 1 SCNLR 168; (1983) 3 SC 124 at 163-164; Ugo v. Obiekwe (1989) 1 NWLR (pt.99) 566 etc. Accordingly, the Jalingo Local Government having lawfully granted the piece or parcel of land in dispute to the respondent in 1981 was left with nothing to grant to the appellant subsequently in 1983 or 1985 during the subsistence of the respondent’s grant.”

Concurrent Findings of fact.

Both the trial court and the court below reached this conclusion from the facts proved in the trial court and unchallenged in the court below, thus reaching concurrent findings of fact. We are accordingly urged not to interfere with these findings and in doing so we are guided by the long line of authorities of this court in which this court will interfere with concurrent findings of fact. The case of Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 at 576 per Nnaemeka Agu, JSC was cited as saying inter alia –

“Thus there were concurrent findings of fact by the two courts below in favour of the plaintiffs and against the defendants in all id vital areas of the case. The law is that where there are such concurrent findings, then unless those findings are found to be perverse, not supported by the evidence or reached as a result of wrong approach to the evidence, or as a result of a wrong application of a wrong principle of substantive law or of procedure, this court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See The Stool of Abinabina v. Enyimadu (1953) 12 WACA 171, Enang v. Adu (1981) 11 – 12 S.C 25 p.42 …. I have not been persuaded that any of the above principles can apply in favour of the appellants.”

From the foregoing, the conclusions of fact reached by the two courts below were supported by evidence on the printed records. The lower court were and are indeed entitled to draw inferences from the evidence of DW9 and exhibit C and I am of the firm view that they correctly reached the findings of fact linking exh. C to the Awojobi Kure family. This conclusion cannot be said to be perverse and none of the principles stated therein can apply in favour of the defendant. Defendant/Respondent’s issue 2 – ground 6

Under this ground of appeal the defendant does not and has not complained against the application of the principle of priority of interest being attached to the deed of conveyance which is registered first in time. A direct Supreme Court case in this regard is Ayinla v. Sijuwola (1984) NSCC 301 at 311; (1984) 1 SCNLR 410 at 422-423 wherein this court held inter alia as follows:

“Then there are the competing conveyances exhibits A and C. Both were duly registered. Exhibit A which was executed on 26th September, 1959 was registered on 19th October 1959 while exhibit C executed on 9th April 1969 was registered on 16th April, 1969. Clearly between these two registered conveyances that of the respondent was first in time and took priority although the act of registration does not confer a better title. In fact registration of instruments is not concerned with the validity or authenticity of such instruments. Once the deed is registrable it will be accepted for registration even if its terms are inconsistent with a deed in relation to the same land registered earlier.

Although I agree with Chief Sowemimo that registration is not notice to the whole world (see Omosanya v. Anifowoshe (1959) 4 FSC 94 at 98) the earlier registration by the respondent would have given notice to the appellant, if only he made a diligent search, that the land had been previously dealt with. Section 16(1) of the Land Instruments Registration Law Cap.64 of the Laws of Lagos State, to which both the learned trial Judge (indirectly) and the Court of Appeal made reference provides as follows:

‘Subject to the provisions of this law, and in particular of subsection (2) of this section every instrument registered under this law shall so far as it affects any land, take effect, as against other instruments affecting the same land, from the date of its registration as hereinafter defined in the proper office as specified in section 3, and every instrument registered before the commencement of this law shall be deemed to have taken effect from the date provided by the law in force at the time of its registration.’

See also the case of Amankra v. Zankley (1963) 1 All NLR 304 where this court considered the meaning of this section as well as section 15 thereof. The court was of the view that the Act envisages that a person who receives a conveyance should register it and registration is intended to give protection to others to whom the original owner might wish to sell the land again. It came to the conclusion (as per Bairamian, JSC) that if both competing deeds are registered, each takes effect as against the other from the date of registration. The benefit of earlier registration is preserved. Of course the case was not exactly on all fours with the present case as indeed there is no case of an earlier executed deed being registered later. In the instant appeal the deed exhibit A was executed and registered about 10 years before exhibit C was executed and registered. Its priority over exhibit C is beyond question.”

For the foregoing reasons, I will answer the lone issue formulated at plaintiff’s instance in the affirmative and accordingly dismiss the appeal. Costs of this appeal are assessed in the sum of N10,000 in favour of plaintiff.

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