Adeyemi Ogunleye V. Matthew Ige Safejo (2009)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A.,
Matthew Ige Safejo, (the Respondent herein), as Plaintiff before the lower Court, claimed against Adeyemi Ogunleye, (the Appellant herein), the sum of One Million Naira (N1,000,000.00) being general damages for trespass allegedly committed and still being committed by the Defendant on the Plaintiff’s land at Omi-Eliju, Ikere Road, Ilawe-Ekiti on which the Plaintiff had built the foundation of a house, and for perpetual injunction restraining the Defendant, his agents, servants and privies from going into theland in dispute or doing anything whatsoever on it. After pleadings were duly exchanged, parties adduced evidence in proof and in defence of the claims. At the close of trial, Judgment was given in favour of the Plaintiff/Respondent in these terms:
“In the light of the foregoing, it is my view and I so hold that the plaintiff has discharged the onus of proof placed on him in this case. Consequently, judgment is hereby entered in favour of the plaintiff; Mathew Ige Safejo as follows;
i. It is the order of this court that the defendant Adeyemi Ogunleye shall pay to the plaintiff the sum of N100,000.00 as general damages for trespass committed by the Defendant on the plaintiff’s plot of land which is situated at Omi-Eliju, Ikere road, Ilawe-Ekiti.
ii. A perpetual injunction is hereby granted restraining the defendant, his agents, servants and privies from going to the land in dispute or doing anything whatsoever on it
iii. Each side shall bear its respective costs of the suit”
The Appellant manifested his dissatisfaction with this decision in an Appeal. He filed one original Ground of Appeal and four additional Grounds of Appeal.
On the 9th February, 2009, when the Appeal was called up for hearing, Miss Mbah, learned Counsel for the Appellant, adopted the Appellant’s Brief of argument dated 25th September, 2008 but filed on 6th October, 2000 and prayed the Court to allow the Appeal. Similarly, Mr. Omotoso, learned counsel for the Respondent, adopted the Respondent’s Brief of argument filed on 7th November, 2008 and prayed the Court to dismiss the Appeal.
Arising from the Grounds of Appeal, the Appellant distilled four issues to be determined by the Court as follows:
- Whether or not Exhibit A is admissible in evidence as an instrument granting title to the land in dispute to the respondent
- Whether or not the lower court was right not to have expunged Exhibit A when writing Judgment for offending the illiterate Protection Law.
- Whether or not the Respondent proved his case on a preponderance of evidence.
- Whether or not the trial Court property evaluated the evidence placed before it before coming to a decision.
The Respondent raised similar issues but phrased hem differently thus:
- Whether the trial Court properly admitted the purchase receipt (EXHIBIT A) of the land in dispute.
- Whether EXHIBIT ‘A’ was admissible in evidence when it did not contain an illiterate jurat.
- Whether the findings of facts made by the trial court were supported by the evidence placed before it.
From an examination of the Grounds of Appeal in conjunction with the proceedings at the lower Court as contained in the printed record of proceedings, I find that the issues formulated by the Respondent more concisely address the grievances articulated in the said Grounds. I therefore adopt same for determination by this Court.
Issue Number One; Whether the Court properly admitted the purchase receipt (EXHIBIT A) of the land in dispute.
Under this issue, learned Counsel for the Appellant submits that from the totality of the evidence adduced by the Plaintiff, Exhibit A was the instrument with which late Ale Obagbua transferred his land to the Respondent. He contends that such a document as Exhibit A is a document affecting interest in land within the meaning of Section 2 of the Land Registration Law of Ondo State as applicable to Ekiti State. He contends that there is nothing on its face to show that it was registered as a land instrument, and therefore it cannot be pleaded nor admitted as an exhibit in any court. By virtue of Section 16 of the Land Registration Law, Counsel urges the Court to expunge Exhibit A from the record as same cannot be pleaded or admitted as an exhibit. He relies on the decisions in Commissioner for Lands and Housing, Kwara State V Atanda (2007) 2 NWLR (Pt. 1018) 360 at 376; & Agbonawbare V Ogbebor (2007) 8 NWLR (Pt. 1037) 605 at 621. Counsel therefore urged the Court to resolve this issue in favour of the Appellant.
On the part of Counsel for the Respondent he agrees with the Appellant that by virtue of Section 16 of the Land Instrument Registration Law Cap 54 Laws of Ondo State as applicable to Ekiti State, no instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office, i.e. the Land Registry, as specified in Section 6 of the same Law. Nonetheless, Counsel submits that a receipt is only an acknowledgement of something in writing especially money. Even assuming it is an unregistered registrable instrument, Counsel submits that it is still admissible to prove equitable interest and payment of purchase money or rent. He relied on Olowolaramo V Umechukwu (2003) 2 NWLR (Pt. 805) 537 at 559.
Counsel further refers to paragraph 3 of the Statement of Claim, where the receipt was pleaded, to establish the fact that the Respondent purchased the land in dispute from late Ale Obagua and that he has been in possession of the land in dispute since 1970, and not as evidence of title. Counsel therefore submits that the purchase receipt is admissible, was properly tendered by the Respondent and received in evidence by the trial Court, both as proof of facts pleaded as well as to show that there was a transaction between the grantor, late Ale Obagbua, and the grantee, the Respondent. Reliance was placed on Olowolaramo V Umechukwu (Supra) & Abu V Kuyabana (2002) 4 NWLR (Pt. 758) 599. Counsel furthermore submits that a registrable instrument which is inadmissible as such for want of registration is however admissible to show that title has passed from the vendor to the vendee. Dantata V Dantata (2002) 4 NWLR (Pt. 756) 144 at 166 is relied upon. He points out that the Appellant did not object to the admissibility of the purchase receipt which was tendered by the Respondent and admitted in evidence by the Court. Counsel contends that even if the receipt was wrongly admitted in evidence, same has not occasioned a miscarriage of justice as the learned trial Judge did not rely on the said Exhibit A as the basis for his decision. He submits that there is abundant evidence apart from the Exhibit A to enable the trial Judge arrive at the conclusion in finding the Appellant liable for trespass. He referred to pages 24, 31 and 53 of the transcribed record of proceedings where the Court found as a fact that the Respondent had been exercising acts of ownership on the land and had been in long and exclusive possession of the land. He also relied on Okere V Fashawe (2006) 12 WRN 1 at 26 – 27. Counsel therefore urged the Court to resolve this issue in favour of the Respondent.
It has been robustly advocated by the Appellant that the trial Court was wrong to admit the Exhibit A, being an inadmissible document, and having done so, failing to expunge it thereafter. A registrable instrument is an instrument which limits, transfers or confers any right in land in favour of a person. See Jinadu Ajao V Bello Adigun (1993) 3 SCNJ 1. I quite agree with Counsel on the legal effect of non-registration of a registrable instrument where it is intended to prove title. The law is trite that an instrument which is registrable but not registered cannot be pleaded nor tendered or produced in evidence. See Igbum V Nvarinya (2001) 5 NWLR (Pt. 707) 554; Akintola V Solano (1986) 4 NWLR (Pt. 24) 589; Ojugbele V Olasoji (1982) 4 SC 31; Ossai V Nwajide (1975) 4 SC 207. Section 16 of the Land Instruments Registration Law of Ondo State applicable to Ekiti State is the statutory authority relied on by learned Counsel for the Appellant to found his objection to Exhibit A. It reads:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered.”
Nevertheless, this is not a bar to such a document being tendered and admitted in evidence to establish proof of the transaction and to prove payment in respect of the transaction. See Adeniji V Onagoruwa (2000) 1 NWLR (Pt. 639) 1; Dauda V. Bamidele (2000) 9 NWLR (Pt. 671) 199 at 212.
There is no doubt that the receipt for the purchase of the land in dispute issued by Ale Obagua to the Respondent was specifically pleaded and admitted in evidence as Exhibit A. I have carefully examined the Exhibit A and it is clear to me that it is, without a doubt, an unregistered instrument, and as such, is not admissible to prove Plaintiff’s title to the land sold to him. It is, all the same, admissible as a receipt or an acknowledgment for the payment of money in respect of the land by the Plaintiff. Coupled with the delivery of possession of the land in dispute by Ale Obagua to the Plaintiff, this gave rise to an equitable interest which is capable of being converted into a legal interest by specific performance.
In the case of Ogunjomi V Ademolu (1995) 4 SCNJ 45, when considering the issue whether a party can rely on inadmissible documents in his possession in an action for declaration of title when the issue of possession was seriously disputed during the trial, the Supreme Court unhesitatingly answered in the affirmative. Hear Kutigi, JSC (now CJN) at page 54 of the report:
“To put it simply, the law is that registrable instruments which are not registered are, if pleaded, admissible in evidence to prove not only payment of purchase money but also to prove an equitable interest where the purchaser is in possession. See Okoye V. Dumez (1985) 6 SC 3. “See also Adesanya V Aderonmu (2000) 6 SCNJ 242. Exhibit A was therefore rightly, in my view, admitted in evidence in the instant case as a receipt of payment for the land in dispute and not in proof of title to the land. Issue number one is therefore resolved in favour of the Respondent.
Issue number Two: Whether EXHIBIT ‘A’ was admissible in evidence when it did not contain an illiterate jurat.
Learned Counsel for the Appellant pointed to the evidence of the Plaintiff wherein he conceded to the fact that the late Ale Obagbua could neither read nor write, even in Yoruba, the language in which the Exhibit A was written. Therein, the Plaintiff also conceded that Exhibit A was written by someone called Tailor and thumb printed by the late Ale Obagbua. However, the Exhibit A did not contain the required illiterate jurat.
In addition, Counsel contends that the Respondent did not show whether Exhibit A was written at the request of late Ale Obagbua or at the request of the Respondent. The writer neither wrote his name nor signed his signature thereon. Neither was he called as a witness. Counsel contends that even though this issue was raised during the addresses of Counsel, the lower Court did not consider the issue. Counsel thus submits that Exhibit A did not comply with the relevant provisions of the Illiterate Protection Law of Ondo State and is therefore inadmissible. Kuti V Alashe (2005) 17 NWLR (pt. 955) 625 at 645 & Ezeigwe V Awudu (2008) 11 NWLR (Pt. 1097) 158 at 174-175 were relied on.
Counsel also argues that the Appellant in his oral evidence as Defendant before the lower Court denied the existence of Exhibit A, and challenged it as not being authentic. He submits that this challenge to its authenticity therefore placed a burden on the Respondent to call the maker of the document, and failure to have done so made the document to be without evidential weight or value. Chitex Ind. Ltd V O.B.I. (Nig.) Ltd (2005) 14 NWLR (Pt. 945) 392 at 411 is relied upon. Counsel consequently urged the Court to hold that the lower Court was wrong in admitting in evidence and relying on Exhibit A as the root of the Respondent’s title.
In responding to this issue, learned Counsel for the Respondent submits that the absence of an illiterate jurat in a document signed by an illiterate person does not render same void. It is only voidable at the instance of the illiterate person. It will also only affect the weight to be attached to it. Counsel further submits that only an illiterate person can seek protection under the Illiterate Protection Law. Wilson V Oshin (2000) 9 NWLR (Pt. 673) 442 at 446 – 447 & Aigbogban v. Aifunwa (1999) 13 NWLR (Pt. 635) 412 at 420 are relied on.
Learned Counsel further drew attention to the fact that parties did not join issues on this material fact both in their pleadings and on the evidence on record. He contends that the question of the illiteracy of late Ale Obagbua was never an issue. While admitting that the Respondent under cross-examination testified that the late Obagua from whom he derived title could neither read nor write, Counsel argues that evidence adduced on facts not pleaded go to no issue, just as evidence elicited from a witness under cross examination on facts not pleaded go to no issue. Where such has been given, it would be discountenanced or expunged from the record. For this, he placed reliance on the following cases: Igbum V Nyarinya (2001) 5 NWLR (Pt. 707) 554 at 571, 573-574; Punch Nig. Ltd v. Eyitene (2001) 17 NWLR (Pt. 741) 228 at 225. Learned Counsel urged the Court to discountenance such un-pleaded evidence since it is obvious from the record that the Appellant neither raised this material fact in his Statement of Defence nor did the parties join issues thereon. Instead, Counsel for Appellant admits that it was only latterly raised in his final address to the Court. Learned Counsel submits that the address of Counsel cannot take the place of evidence on record. He contends that the lack of an illiterate jurat is a statement of fact which ought to have been pleaded. Counsel therefore submits that Exhibit A was legally admissible and properly admitted in evidence by the trial Court. He thus urged the Court to resolve this issue in favour of the Respondent.
The absence of an illiterate jurat is another angle from which the Appellant has attacked the Exhibit A. It is the contention of the Appellant that the Exhibit A did not comply with the Illiterates Protection Law of Ondo State in respect to the illiterate’s jurat. The question arises as to who is an illiterate. An illiterate person is a person who is unable to read with understanding and to express his thoughts by writing, in the language used in the document made or prepared on his behalf. See Otitoju v. Governor of Ondo State (1994) 4 SCNJ 224; Ntiashagwo V Amodu (1959) WNLR 273.
The Illiterates Protection Law applies to protect persons who prove that they are illiterates in fact, that they did not understand what they signed and that the documents were not read over to them. See Francis Anaeze V Ude Anyaso (1993) 5 SCNJ 151. The Illiterates Protection Law, which the Appellant alleged Exhibit A contravened, was made primarily for the protection of illiterate persons. It is therefore the illiterate person, at whose behest any person writes a letter or a document, that requires protection and he is the one who may seek the protection given by the law by complaining that the letter or document written at his request and which was signed with his signature or his mark was not, prior to its being so signed, read over and explained to him. The point must be made that the law, as the title suggests, is to protect, defend, shield and safeguard illiterates from being exploited. It is certainly not a law to penalize them.
Therefore, the fact that the writer of a letter or a document at the request, on behalf or in the name of an illiterate did not completely comply with the requirements of that law does not necessarily mean that such letter or document was, for that reason alone, void and of no effect. It is indeed a shield and not a sword. See Aigbogban V Aifunwa (1999) 13 NWLR (Pt. 635) 412 at 420; Edokpolo &. Co V Ohenhen (1994) 7 – 8 SCNJ 500; Iro Ezera v. Inyima Nukwe (1961) All NLR 564; PZ V Gusau (1962) 1 All NLR 242. In Igbuin V Nyarinya (Supra), when a similar situation arose before the Jos Division of this Court, Mangaji, JCA (of blessed memory), held as follows at pages 574 – 574 of the report:
”In the first place is the document a valid one? The objection of learned Counsel against the validity of the document has to do with the absence of any illiterate jurat on it. The law requires documents executed by illiterates to comply with the provisions of the Illiterates Protection Act and such similar laws. Thus the writer of a document which creates legal rights between the parties to the document whether one of the parties to the document is an illiterate or both is mandated to so indicate in the document that he did read and explain to the illiterate person in the language he clearly understands the contents of the document and the latter understood and accepted to be bound by it. Illiterates Protection Act and such similar Laws primarily aim to protect an illiterate by ensuring that he understands the meaning and effect of the document which he is signing. It is thus a shield at the disposal of the illiterate, who, in the con of the Act:, is understood to be a person ignorant of letters, unlearned or unable to read the document in the language in which it is couched.”
I therefore stand with Counsel for the Respondent who has submitted that a document executed without an illiterate jurat where one party is an illiterate is only voidable at the instance of the illiterate himself. See Wilson V Oshin (2000) 9 NWLR (pt. 673) 442 at 446-447.
It is hence well to mention that, as the purpose of the Illiterates Protection Law is to protect illiterates, it stands to reason that it may not enure to a stranger to the document, such as the Appellant in the instant case. See Djukpan V Orovuyovbe (1967) 1 ALL NLR 134 at 140.
Furthermore, I agree completely with Counsel for the Respondent that illiteracy is a question of fact to be proved by the person alleging illiteracy. It is not proved merely by the ipsi dixit of the Appellant. Hear Kutigi JSC, (now CJN), in Otitoju V Governor Ondo State (Supra) at page 234:
“The question therefore of anyone being literate or illiterate cannot be presumed by the court but is a matter to be established by evidence. See Edokpayi V Oke (1964) MNLR 53.”
The burden therefore was on the Appellant who raised the issue of illiteracy to have pleaded and adduced evidence to prove that the author of the document was an illiterate. The record of the Court bears out the fact that the Appellant never pleaded the fact of Ale Obagua’s illiteracy in his Statement of Defence. Indeed, the issue of illiteracy was nowhere raised in the pleadings. Therefore, parties did not at all join issue son this both in the pleadings and in evidence. In Igbum V Nyarinya (Supra) at page 574, in considering the issue of whether the sale agreement was admissible in evidence when it did not contain an illiterate jurat, Mangaji, JCA, once again pronounced thus:
”Looking most meticulously through the amended statement of claim at the court below, there is no averment therein to the effect that the appellant is an illiterate. Throughout the evidence led by the appellant; there is no evidence to suggest that he is or was indeed an illiterate… So the question of illiteracy of the appellant was not an issue at all. In which event the need to incorporate an illiterate jurat in Exhibit 3 did not arise. Evidently Exhibit 3 is a valid document as there was no need to incorporate in it an illiterate jurat.”
Having therefore, neither pleaded the fact of the illiteracy of Ale Obagua, the vendor, and issues having not been joined thereon, any evidence purported to have been elicited on the issue goes to no issue.
Consequently, based on the twin findings that the Illiterates Protection Law of Ondo State applicable to Ekiti State is a shield and not a sword, and that parties never joined issues on the fact of the vendor’s illiteracy, it is my finding that the said Exhibit A was properly admitted in evidence in spite of the absence of an illiterate jurat therein. This issue is also resolved in favour of the Respondent.
Issue Number Three: Whether the findings of facts made by the trial court were supported by the evidence placed before it.
Learned Counsel for the Appellant submits that even though the claim of the Respondent at the lower Court was for damages for trespass and an order of injunction, once the Appellant counter claimed for the customary right of occupancy of the land, the claim now became one for a declaration of title, as the ownership of the land had been put in issue. It is his contention therefore, that the Respondent had the evidential burden of proving a better title to succeed in his claim. Olaniyan V Fatoki (2003) 13 NWLR (pt. 837) 273 & Ugosi V Onukogui (2005) 16 NWLR (Pt. 950) 97 at 116 are relied upon.
Counsel submits that the Respondent who traced his title to Ale Obagbua, failed to prove the root of title of his grantor. In addition, it is Counsel’s position that even though the Respondent claimed to have been in long and exclusive possession of the land, he failed to prove this. Instead, Counsel contends that the Appellant pleaded and proved that he successfully challenged the Respondent when he erected a foundation on the land in 1970 causing him, (the Respondent), to remove same. Likewise, in the year 2000, when the Respondent sold the land to a third party, the Appellant removed the pillars that were erected on the land and stopped the sale. Counsel argues that these incidents show that the Respondent had not been in possession, and that even where he is in possession, same could only be hinged on a valid grant. Since there was no valid grant, Counsel submits that he had nothing to possess. He relies on Ilori V Tella (2006) 18 NWLR (Pt. 1011) 265 at 290.
Counsel also challenges the integrity of the Exhibit B, the building plan on the ground that it is conceded by the Respondent that the land was never surveyed before it was made. Again he points out the inconsistency in the evidence of the Respondent that the PW2,the bricklayer, was emphatic that the foundation he laid was in respect of a store and not the residential building in the Exhibit B. He contends therefore that the foundation must have been laid 10 years before Exhibit B was made. Counsel submits that this inconsistency takes the life out of Exhibit B and the entire evidence of the Plaintiff in respect of long possession. In respect of the evidence of the PW3, Counsel submits that it ought to be discountenanced because while part of the evidence was hearsay, the rest was not pleaded.
On the other hand, Counsel submits that the Appellant pleaded and proved the genealogical tree of his family to show how the land devolved on his family through his forefathers. He also proved acts of long possession. In addition, the evidence of DW2 shows that the extended family whom the Respondent reported the matter to, upheld that the land belonged to the Appellant’s family. Counsel submits that the Respondent must succeed on the strength of his case and not on the weakness of the defendant’s claim, except where the weakness supports the Respondent’s case, and vice versa for the Appellant in respect of his counterclaim. Ajiboye V Ishola (2006) 13 NWLR (Pt.998) 628 at 652 is relied on. He however denies that there was any weakness in the Appellant’s counter claim. Learned counsel therefore urged the Court to hold that the Respondent had failed to prove his title on a preponderance of evidence. He urged the Court to resolve this issue in favour of the Appellant. He finally prayed the Court to allow the Appeal, dismiss the Respondent’s case and enter Judgment in favour of the Appellant.
In respect of this issue, learned Counsel for the Respondent concedes that where the claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue. Olounde V Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 580 is relied on. Of the five recognized ways of proving ownership of land, Counsel submits that, by paragraphs 4, 5 and 8 of the Statement of Claim, the Respondent relied on proof by grant or production of documents of title and acts of long possession. In his evidence in chief at pages 24-26 of the record, the Respondent gave both oral and documentary evidence to buttress the facts pleaded therein. Counsel submits that a party is not bound to plead and prove more than one root of title to succeed. Biariko V Ogwuile (2001) 12 NWLR (pt. 726) 235 at 263 & Opuzibau V Kwokwo (2002) 1 NWLR (Pt. 747) 116 at 133 is relied on.
Counsel submits that the claim of the Plaintiff before the lower Court was for damages for trespass and a perpetual injunction. He argues that the claim postulates that prior to the trespass complained of, the Respondent was in exclusive possession of the land in dispute. His evidence before the Court is that he had been in possession of the land since 1970 and had been exercising acts of ownership thereon until the year 2000 when the Appellant trespassed on same. Counsel submits that trespass is actionable per se at the instance of the person in possession of the land in dispute. Okunrinmeta v. Agitan (2002) 2 NWLR (Pt. 752) 565 at 583 is relied on. Counsel contends that the trial Court at pages 52-56 of the record believed the evidence of the Respondent that he had been in long and exclusive possession of the land since 1970 as against that of the Appellant who could not show a better title to the land.
Counsel further argues that the findings of the lower Court are not perverse. He submits that an appellate court will not interfere with the findings of fact by a trial court once the findings are based on the evidence before the court in line with the pleadings of the parties. Maya V Oshuntokun (2001) 11 NWLR (pt. 723) 62 at 78 is relied on. He submits that the findings of the tria1 Court do not call for any interference by this Court. Counsel urged the Court to also resolve this issue in favour of the Respondent. As a final submission, he prayed the Court to dismiss the Appeal with substantial costs.
This issue turns on whether, on the evidence adduced by the Plaintiff in this case, there was any or sufficient proof of his title to the land in dispute. In dealing with this question, it will be necessary to recall some of the more important general principles of law which govern the award of title to land by the courts.
There are two ways in which title can be put in issue. The first is by expressly basing a claim on title and the second, by claiming damages for trespass and injunction. See Agu V Nnadi (2002) 12 SCNJ238. It is not in doubt that once a party pleads and traces his root of title in an action for a declaration of title to land to a particular person or source, and this averment, as in the present case, is challenged, that party, to succeed, as a plaintiff in the suit must not only establish his title to such land, he must also satisfy the court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title where this has been challenged and concentrate only on his own title to such land as he would not have acquired a valid title to such land if in fact, his grantor, at all material times, had no title thereto. See Alli V Aleshinloye (2000) 4 SCNJ 264; Mogaji V Cadbury Fry (Export) Ltd (1985) 2 NWLR (pt. 7) 393. Accordingly, for the Appellant to succeed in the present suit he must not only establish his title to the land in dispute, he must go further to satisfy the court on the validity of Ale Obagua’s title, and that is to say how Ale Obagua derived his title to the land in dispute.
Now the law is trite that there exists five recognized methods by which ownership of land may be established. These briefly comprise of the following:
(i) Proof by traditional history or traditional evidence.
(ii) Proof by grant or the production of documents of title.
(iii) Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are true owners of the land.
(iv) Proof by acts of long possession.
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.
See Idundun & Ors V Okumagba (1976) 9 & 10 SC 277; Atanda V Ajani (1989) 3 NWLR (Pt. 111) 511; Anyanwu V M Mbara (1992) 5 NWLR (Pt. 242) 381.
It is also the law that to succeed in a claim for declaration of title to land, the court must be satisfied as to-
(i) The precise nature of the title claim, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise, and:
(ii) Evidence establishing title of the nature claimed.
Similarly, it is trite law that a Plaintiff when claiming a declaration of title to land, must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. The rationale behind this principle is that the plaintiff, having sought relief from the court but failed to establish his entitlement thereto, ought to have his claim rejected. However, this broad general principle of law does not naturally apply where the defendant’s case itself lends support to that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. The question that must now be asked and answered is whether the Plaintiff satisfied the court as to the precise nature of the title to the land in dispute.
As indicated earlier on in this Judgment, the precise nature of the Plaintiff’s case as disclosed by evidence is straightforward and clear-cut. It is based on sale of land under customary law. The land in dispute was said to have been sold to the Plaintiff by Ale Obagbua in the presence of witnesses sometime in 1970. The land was said to be owned by Ale Obagbua who inherited it from his own father. These facts were carefully set out in paragraphs 4, 5 and 8 of the Statement of claim as follows:
“(4) The land in dispute was sold to the Plaintiff on 12th November, 1979 by late Ale Obagbua and has the foundation of a house on it.
(5) The receipt of payment issued to the Plaintiff by the aforesaid late Ale Obagbua is hereby pleaded.
(8) Plaintiff has been in Possession of the land in dispute since 1970 and exercising acts of ownership thereon.”
Copious evidence was thereafter led by the Plaintiff and his witnesses in line with the averments in his pleadings. The land in question was held by Ale Obagbua under customary law. Ale Obagbua sold a part of his own land to the Plaintiff under customary law. Accordingly, no such thing as a written contract or conveyance was necessary to effect a valid sale thereof by Ale Obagbua to the Plaintiff. Payment of the agreed purchase price by the Plaintiff coupled with the delivery of possession of the land to him created a valid sale of land by Ale to him under customary law. See Orasanmi V Idowu 4 FSC 40.
The receipt for the purchase of the land issued by Ale Obagbua to the Plaintiff was specifically pleaded and admitted in evidence as Exhibit A. A cursory look at the Exhibit A clearly discloses that it is an unregistered instrument, and as such, is not admissible to prove the Plaintiff’s title to the land sold to him. It is however admissible as a receipt or an acknowledgment of the payment of money in respect of the land by the plaintiff. This evidence of sale, coupled with the delivery of possession of the land in dispute by Ale to the Plaintiff, gave rise to an equitable interest which is capable of being converted into a legal estate by specific performance. Exhibit A was therefore rightly admitted in evidence as a mere receipt and not in proof of title to the land, as the nature of the title relied upon by the Plaintiff was that of sale under customary law and not by virtue of a conveyance.
Another aspect of this case which deserves attention is the fact that both parties claim to be the owners of the land in dispute. The Plaintiff based his title on sale of land from Ale Obagbua, the owner thereof under customary law. The Defendant, on the other hand, traced his title to the land to his grandfather, Agbeniyi, who was also Ale’s grandfather. He testified that Agbeniyi, the original owner of the land, begat Oniorisa, Obagbua, Asigba and Ogundigba. Oniorisa was the Defendant’s father. The law is well settled that once a party pleads and traces his root of title in a dispute over land to a particular source and his averment, as in this case, is challenged, that party to succeed as a Plaintiff in the action, must not only establish his title to such land, he must also satisfy the court as to the title of the source from whom he claims to have derived his title to the land. See Mogaji V Cadbury Fry (1985) 2 NWLR (Pt. 7) 393. The Defendant, in proof of the root of title of his grantor relied on evidence of traditional history.
The learned trial Judge gave very scrupulous consideration to the evidence adduced before him and found the evidence proffered on behalf of the Plaintiff more cogent and acceptable. While accepting the evidence of the Plaintiff in respect of his sale of land transaction with Ale, he was in doubt about the claim of the Defendant. Said the learned trial Judge at pages 53 – 54 of the transmitted record:
‘I am satisfy (sic) with the evidence of the plaintiff that he has been in possession of the land in dispute since 1970 the defendant having failed to contradict the evidence of the plaintiff and establish his title which he put in issue in his statement of defence and counter claim. I accept and believe the evidence of the plaintiff. It is in light of the above elucidation that I hold that the possession of the plaintiff is sufficient to enable him to maintain an action for trespass against the defendant who has failed to establish his title or show that he is the one in possession or that he has a right to possession.”
The learned trial Judge went further to express his belief and acceptance of the evidence of the Respondent as Plaintiff when he said further at page 53:
“I am of the strong view that the defendant has failed to discharge this burden placed on him by law. The pleadings and the evidence adduced by the defendant did not show how the land was founded and who founded the land. It is not clear from the evidence of the defendant how Agbeniyi who was said to be the original owner of the land got to the land. I accept and believe the evidence of the Plaintiff as to how he bought the land in dispute from late Ale Obagbua as evidenced by Exhibit A which is the purchase receipt”
The learned trial Judge was therefore comfortably able to come to the conclusion that:
“I have dealt extensively on title and possession in this case and I found that the plaintiff has been in long and exclusive possession of the land in dispute since 1970 as against the defendant who could not show a better title to the land. The plaintiff was in possession of the and in dispute when the defendant entered the land. The plaintiff who is in possession can maintain an action in trespass against the defendant”
On the other hand, the learned trial Judge’s assessment of the evidence adduced by the Respondent in proof of his counter claim for title was expressed in these terms at page 52 of the record:
“The contention of the defendant that the land in dispute is a family land at the time it was sold to the plaintiff appeared to be very feeble and unsubstantiated in view of the evidence adduced in that regard. I wonder why the defendant who claimed to be the present head of his family failed or did not deem it fit to call as a witness any of the key members of his family who could give a vivid account of the land in dispute. The defendant said it was the family who sent for the plaintiff when the family observed that the plaintiff had encroached on its land but in contradiction DW2 said it was the plaintiff who reported the matter to the family that the defendant wanted to take the land sold to him by Obagbua.”
In this regard, the lower Court, after a close analysis of the issue concluded thus:
“I am of the strong view that the defendant has failed to discharge this burden placed on him by law. The pleadings and evidence adduced by the defendant did not show how the land was founded and who founded the land. It is not clear from the evidence of the defendant how Agbeniyi who was said to be the original owner of the land got to the land. I accept and believe the evidence of the plaintiff as to how he bought the land in dispute from late Ale Obagbua as evidenced by Exhibit A which is the purchase receipt. ”
I will proceed on the premise that the making of findings of fact is a matter preeminently within the province of the trial court which has the opportunity of seeing, hearing and observing the witnesses testify. Therefore, the trial Court’s conclusions on the facts are presumed to be correct. Where a trial Court unequivocally evaluates the evidence and appraises the facts, it is not the duty of the Court of Appeal to substitute its own views for that of the trial Court. The duty to displace this presumption lies on the party challenging them. Thus, the onus is on the Appellant herein seeking to upset the Judgment on the facts to displace this presumption. The authorities on this are legion. See Emmanuel Ben V State (2006) 7 SCNJ 215; Isah Onu V Ibrahim Idu (2006) 6 SCNJ 23; Awoyoolu V Aro (2006) 2 SCNJ 44. I have given a close study to the findings and conclusions reached by the trial Court and must state without equivocation that I have found them to be amply supported by evidence and entirely without fault.
It is the law that the findings of facts of a trial Court will not be disturbed by an appellate court unless and until they are shown to be perverse. See Maya V Oshuntokun (2001) 11 NWLR (pt. 723); Olukoya V Ashiru (2006) 5 SCNJ 107; Amusa V State (2003) 1 SCNJ 518. Such evidence will not be disturbed when supported by evidence and when a miscarriage of justice has not been occasioned. See Sosanya v Onadeko (2005) 2 SCNJ 103. The duty of the appellate court is limited to considering whether the trial court followed the proper approach in making them. It is therefore the duty of a party to go beyond merely alleging before the appellate court that the lower court did something wrong to show that a miscarriage of justice was thereby occasioned. See Usman V Garke (2003) 7 SCNJ 38.
Conversely, an appellate court will be justified in reversing such findings when they are based on an erroneous view of the law and the facts applicable. It is the duty and the right of the appellate court to interfere in appropriate cases. For instance, where there is a misapprehension of the case put forward by the court in respect of material facts and crucial issues. This constitutes a fundamental vice that vitiates a decision in a case and renders the decision liable to be set aside. Also, where there is a misconception of the case by the trial Judge that affects the consideration of the case before him. In such a circumstance, there is a need to order a re-trial as it is not proper for the appellate court to evaluate the evidence where it concerns or involves ascribing credibility to the evidence of a witness. See Adejugbe V Ologunja (2004) 2 SCNJ 179; Sanni V Ademiluyi (2003) 1 SCNJ 197; Remilekun Olaiya V Cornelia Olaiya (2002) 5 SCNJ 145; AG Ekiti State V Daramola (2003) 5 SCNJ 82. Findings of fact will not be upheld unless they can be justifiably defended from the available evidence. See Mojekwu V Iwuchukwu (2004) 4 SCNJ 180.
The principles guiding when the Court of Appeal should be wary of interfering with the findings of a trial Court received full consideration by the Supreme Court in the case of Ebba v. Ogodo (1984) SCNLR 372, where Eso, JSC, in the course of his judgment, referred with approval to the English case of Watt or Thomas v. (1947) AC 484, and said at page 378 thus:
“…Indeed it is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the court forms of them. That is one good reason why the Trial Court is named a ‘trial Court’ (and hence a Court of Appeal should attach the greatest weight to the opinion of the trial judge) that has the duty to see and indeed, in this case, has seen the witnesses and also heard their evidence… … … … … … … … … …
Unless the trial Court has failed to make use of this singular advantage, and for that reason thereof the Court of Appeal finds that the decision is perverse, the Court of Appeal- whose opportunity is confined to the printed record is obliged to, and must accord to the finding of fact by the trial Court the greatest weight and due respect That indeed is the division of labour, and a sensible one at that between the trial Court and the Appellate Court.”
At page 379, his lordship continued thus:
“But this division ends or rather does not exist where the question does not affect the issue of credibility of witnesses, in other words, the Court of Appeal itself will obviously be in as good position as the trial Court, for in such a case, the trial Court has no advantage really over the Court of Appeal. For the Court of Appeal will be in a proper position to evaluate, as the trial Court, the evidence which has been given in the case, for in such cases, the matter in dispute has been completely narrowed down to inference that could be drawn from proved facts, without going through the rigour of credibility of witnesses. When we have this type of case, the Court of Appeal should not shrink from the talk of such evaluation or be inhibited thereupon, just because it is a Court of Appeal.”
This decision of the apex Court plainly sets out the principles with regard to when a Court of Appeal should consider itself to be in as good a position as the trial Court to evaluate and resolve the questions raised in an Appeal. An appellant who seeks the intervention of an appellate court in findings of fact must have it at the back of his mind that the Court will generally be unwilling to do so. Therefore, such an appellant must be prepared to demonstrate the element perverse findings or wrong conclusions from accepted credible evidence resulting in a miscarriage of justice. There cannot however arise the need to accord respect to the findings of fact of a trial Court if the trial Court’s findings are fraught with the type of perversity or erroneous conclusions sufficient to affect the justice of the case. Where there are no such errors, an appellate court hearing an appeal from such findings will refrain from setting them aside, even if it might have thought that different conclusions could have been reached, so long as the findings of fact in question are reasonably justified by the evidence available. See also Thompson V Arowolo (2003) 4 SCNJ 20; Otunba Owoyemi V Prince Adekoya (2003) 12 SCNJ 131; Globe Fishing Industries Ltd V Coker (1990) 7 NWLR (pt. 162) 265.
This however is not the case here. Evidently, the learned trial Judge commendably evaluated the evidence adduced before the Court and properly appraised the facts of the case. In these circumstances, I find myself quite unable to disturb or upset the findings of the trial Court as they are abundantly supported by evidence and no miscarriage of justice has been occasioned. Issue number three is equally resolved in favour of the Respondent.
In the result, following all my finding above, I find the Appeal wholly without merit. It deserves to fail and is accordingly dismissed, with N30,000.00 costs awarded to the Respondent.
Appeal dismissed.
Other Citations: (2009)LCN/3237(CA)
