Alhaji Sikiru Sorungbe V. Abu Akanni Lawal (2006)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered by Ogunade, J. while sitting at the High Court of Justice in Ota, Ogun State of Nigeria on the 9th day of December, 1999. The learned trial judge found that the Respondent herein, as plaintiff before him, proved his claims except that relating to special damages and entered judgment in his favour.
The plaintiff’s claims, as per his amended statement of claim at pages 21-22 of the record of appeal, read as follows:-
“(a) A DECLARATION that the plaintiff is entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land lying, being and situate at along Lagos Abeokuta motor road, Sango Ota Ogun State and more particularly delineated on Survey Plan No. APAT/OG/174/1985 dated 20th November, 1995 drawn by A. B. Apatira, licenced surveyor.
(b) The sum of N50,000.00 (Fifty Thousand Naira) being special and general damages for trespass committed by the Defendant on the plaintiff’s said land.
PARTICULARS OF SPECIAL DAMAGES
N
- 70 pieces of 9 inches blocks at N35.00 2,450.00
- 2 bundles of Iron Sheets at N4,000.00 per bundle 8,000.00
- Cost of supporting planks destroyed by the Defendant … 3,700.00
14,150.00
GENERAL DAMAGES 35.850.00
TOTAL 50,000.00
(c) A PERPETUAL INJUNCTION restraining the Defendant, his servants, agents or privies from
committing further acts of trespass on the Plaintiff’s said land.”
Upon the due completion of pleadings at the lower court, each side of the divide adduced evidence. The Plaintiff called five witnesses. The Defendant, on his part, called three witnesses.
The evidence adduced by the Plaintiff points to the direction that the land in dispute was allocated to him in 1974 or thereabout by the late Bello Edun who was at the material time the head of Ajego family. The Plaintiff maintained that Bello Edun later asked him to pay N6,000.00 for the land which he resisted; being a family member. In 1976, he agreed to pay N3,000. A deed tagged ‘Purchase Receipt’ dated 4th May, 1976 in respect of the land is Exhibit 1.
The Plaintiff got in possession of the land and let it to several tenants and erected a fence thereon. As well, he surveyed it. He said that after the purchase of the land in dispute, the said Bello Edun sold a piece of land situate behind his land to the Defendant. Thereafter, Bello Edun and the Defendant pleaded with the Plaintiff so that a road may be carved out to enable the Defendant have access to his own land. The Plaintiff said he agreed.
The Plaintiff testified further that it was in December 1994 that the defendant first trespassed on his land by arresting his tenants. In January 1995, the Defendant demolished the shed built on the land and damaged the fence constructed thereon.
The survey plan made for the Plaintiff in respect of the land is Exhibit 2. The Plaintiff made efforts to obtain a Certificate of Occupancy in respect of the land. A Notice pasted on the land in dispute by the Defendant stating that the land belonged to him is Exhibit 5. A copy of a letter written by the Plaintiffs solicitor to the Defendant’s lawyer is Exhibit 6. The Defendant destroyed the structures on the land as well as the fence thereon. P.W.2 said he was present when the Plaintiff paid Bello Edun the sum of N3,000. P.W.2 said he signed Exhibit 1 as a witness and identified his signature thereon. He confirmed that there were panel beaters and welder on the land. He said that there was a structure as well as a shed on the land while there is a path by the land leading to other lands behind the land in dispute. He was not cross-examined by the learned counsel for the defendant.
P.W.3 and P.W4 were the tenants to whom the plaintiff let out small portions of the land. P.W4 maintained that the defendant’s land was behind that of the plaintiff. He said the defendant approached him personally to look after his land by driving away those who were using it as a refuse dump. He said that the defendant later pasted a notice on the plaintiff’s land which he removed and took to the plaintiff. The defendant caused the plaintiff’s tenant to be arrested. The plaintiff arranged for his release.
P.W.5, a photographer, on invitation took photograph of a workshop at Abeokuta Road, Ota in November 1994. Negative and printed picture are Exhibits 8A & 8B respectively.
The defendant, on his own part, testified that in 1977 Ajego family sold the land in dispute to him for N7,000. He tendered a receipt which is Exhibit 9. He said he saw mechanics and tinker on the land after he paid and he served them Notice to leave the land as he wanted to clear it. He caused his licenced surveyor to survey the land. His survey plan dated 30-5-77 is Exhibit 10. He confirmed that the plaintiff is a member of Ajego family and that he caused the arrest of the mechanics and tinker found on the land, He denied destroying any structure or wall fence on the land in dispute.
Cross-examined, the defendant said the Notices he issued to the mechanics and tinker were issued within about one year that he bought the land. He admitted that there is a footpath which passes by the land in dispute to his house at Sorungbe Street. He admitted that he levelled the land with a land mover.
D.W.2 said the family sold the land to the defendant on 23-5-77. He said after the sale of the plot, the family carved out a portion of the family land to create access route to the land the family sold to him. He said Bello Edun sold a small portion to the defendant. He said Bello Edun was his deputy in the family.
D.W.3 was the licensed surveyor employed by the defendant. He said he could not remember the land he carried out his job. He said he made two plans in 1985. They are Exhibits 11 and 12 herein.
Cross-examined, he said that Exhibits 11 and 12 might not relate to the same site as one is bigger than the other. He could not say which of Exhibits 11 and 12 relate to the land in dispute.
Thereafter, learned counsel on both sides advanced reasoned submissions to assist the learned trial judge in arriving at his judgment. The learned trial judge applied the law to the facts assembled by him to the utmost of his ability and found in favour of the plaintiff.
The defendant felt irked with the stance posed by the learned trial judge and appealed to this Court vide the Notice of Appeal filed on 1st of February, 2000. The said Notice of Appeal carried two grounds of appeal. On behalf of the Appellant, two issues formulated for determination of the appeal at page 4 of his brief of argument read as follows:
“(1) Whether the respondent (sic) respondent’s title to the land in dispute vide Exhibits 1 and 2, was established and proved before the lower court.
(2) Whether Exhibits 3, 4, 7-7L are sufficient proof of ownership and possession of the land in dispute by the respondent.”
In a precise manner, the lone issue couched on behalf of the respondent at page 3 of his brief of argument read as follows:-
“Whether from the totality of the evidence led and exhibits tendered before the lower court, the respondent had proved better title to the land in dispute.”
On behalf of the Appellant in respect of issue 1, learned counsel submitted that the lower court wrongly made a declaration of title in respect of the land in dispute relying on Exhibits 1 and 2 in favour of the respondent. He felt that Bello Edun, in Exhibit 1, held himself out as the absolute owner of the land; whereas the land belonged to Edun Family.
Learned Counsel maintained that there is no evidence or record that the sum of N3,000 received by Bello Edun was accounted to the family. He submitted that where the head of the family sells family land in his private capacity or holds himself out as the absolute owner thereof, such a sale is void. He cited the case of Solomon & Ors v. Mogaji (1982) 11 S.C. 1 at 10.
Learned Counsel further submitted that the boundaries of the piece of land sold vide Exhibit 1 were not shown. He maintained that boundaries were not delineated in Exhibit 2 and that same did not show features like shed and path as claimed by the respondent. Learned Counsel asserted that the leamed trial judge failed to advert his mind to the default of the respondent in filing a dispute plan to depict the identity of the land to resolve all issues in controversy. He referred to Epi v. Aigbedion (1973) NWLR 31 at 35; Arabe v. Asanlu (1980) 5-7 S.C. 78; Awote v. Owodunni (1987) 2 NWLR (Pt.5) 367; Maberi v. Chief Alade (1987) 4 SCNJ 102 and Anyanwu v. Mbara (1992) 6 SCNJ 22.
Learned Counsel maintained that exhibit 2 was not served on the Appellant to enable him join issue on it. He referred to Order 39 Rule 5 of the Ogun State High Court Civil Procedure Rules. He opined that exhibit 2 was wrongly admitted by the lower court. Learned counsel observed that court rules must be obeyed. He cited Jiddun v. Abuna (2000) 4 NSCR 14 at 29. He opined that non-compliance with the rule has occasioned a miscarriage of justice on the appellant.
Leamed Counsel observed that it is the duty of a plaintiff who asked for declaration of title to show precisely the area to which his claim relates.
He cited Baruwa v. Ogunsola (1938) 4 WACA 15. He felt that Exhibit 2 did not show the boundaries of the land in dispute and that the lower court was wrong in relying on it to conclude that the respondent proved a better title.
Learned Counsel contended that the case of the Respondent ought to have been dismissed upon his failure to establish and prove his root of title to the land in dispute. He referred to Lawal v. Olufowobi (1996) 10 NWLR (pt.477) 177 at 187. He felt that declaration was wrongly granted on the basis of admission by the appellant as declaration cannot be based on admissions in the pleadings of a defendant. He felt that even an evasive averment does not remove the duty cast on the plaintiff to prove his case. He cited Bello v. Eweka (1981)1 S.C. 101; Umesie v. Onujuluchi (1995) 9 NWLR (Pt.421) 515; Motunwase v. Sorungbe (1988)5 NWLR (Pt. 92) 102 and Salu v. Egubon (1994) 6 NWLR (Pt.348) 23.
On Issue 2, Learned Counsel contended that Exhibits 3, 4 and 7 -7L relied upon by the trial judge were not helpful. He said that the Exhibits, at best, only showed acts of trespass of the respondent on the land in dispute since there was no proof of his root of title thereto. He maintained that the said Exhibits are not Certificates of Occupancy. He pointed it out that Exhibits 7 -7L were not issued by the Respondent but by Lawal & Sons Trading Company. They were, according to learned counsel, wrongly considered as proof of Respondent’s possession of the land in dispute.
Learned counsel submitted that it is the duty of the respondent to prove his case on the strength of the evidence adduced by him and not the weakness of the defence. He referred to Kodilinye v. Odu 2 WACA 336 at 337; Elias v. Disu (1962)1 ALL NLR 214; Onibudo v. Akibu (1982)7 SC 60 at 84-85. He pointed it out that the only exception is where the evidence adduced by the defence supports the respondent’s case. He felt that on a proper direction the learned trial judge should have held that the respondent did not discharge the onus of proof which rests on him and ought to have dismissed his case.
Learned Counsel for the respondent, on his part, contended that the learned trial judge was right in holding that the respondent proved better title to the land in dispute. He maintained that Exhibit 1 was executed by Bello Edun as head and accredited representative of Edun branch of Ajego family agreed by the parties as the radical owners of the land in dispute. He maintained that the land in dispute was properly sold to the respondent. He maintained that the case of Solomon & Ors v. Mogaji (1982) 11 SC 1 at 10 is not applicable in the prevailing circumstance.
Learned Counsel further observed that although in a claim for declaration of title to land, a plaintiff must prove the identity of the land, such a burden was discharged by the respondent who produced Exhibit 2, the Survey Plan. He felt that identity of the land could be done by oral evidence or by producing a Survey Plan. He cited Mark Ugbo & Ors v Anthony Aburime (1994) 9 SCNJ 23 at 34. He felt that the identity of the land in dispute was not in issue as both parties clearly know same. He observed that as Exhibit 2 was earlier in time, shed, structures and paths were not shown therein.
Learned Counsel submitted that failure of the respondent to file plan tendered as Exhibit 2 would, at worst, amount to non-compliance with the rules of court and such would be a mere irregularity that cannot affect the admissibility of exhibit 2; moreso as the appellant did not raise objection at the trial court. He referred to Order 2 Rules 1(1) &2(1) of the High Court Civil Procedure Rules, Ogun State; Alade v. Olukade (1976)2 SC 183 at 188-9; Oneh & Ors v. Veronica Obi & Ors (1999)7 NWLR (PT.611 )487 at 499; Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991)1 SCNJ 110 at 121.
Learned Counsel maintained that the admission of Exhibit 2 did not cause any miscarriage of justice. He maintained that the respondent sufficiently led evidence and tendered exhibits to prove that apart from being a member of Ajego family of which Edun family is a stock, he also purchased the land in dispute from the accredited representative and head of Edun Family; took effective possession of same since 1976; thereafter surveyed it and let out same to tenants for valuable consideration. Learned Counsel observed that the Respondent created right of way for the Appellant at the prompting of Bello Edun and he enjoyed quiet possession of same until 1994 when the Appellant pasted notices and disturbed Respondent’s tenants on the land.
Learned Counsel submitted that Exhibits 7 – 7L were properly admitted and relied upon by the lower court as P.W4 testified that they were issued to him by the respondent as landlord of the land in dispute.
Learned Counsel observed that title to land can be proved by traditional evidence or production of purchase documents or by various acts of ownership over a length of time or by proof of possession of adjacent land. He cited Idundun v. Okumagba (1976)9 – 10 S.C. 277; Runsewe v. Odutola (1996)3 SCNJ 33; Alli v. Aleshinloye 2 SCNQR 285 at 306.
He contended that the Respondent conclusively proved his case. He urged that the appeal be dismissed.
Let me briefly state it here that ascription of probative value to the evidence of witness is pre-eminently the business of the trial judge who saw and heard the witnesses. An appeal court will not lightly interfere with same unless for compelling reasons. Refer to Ebba v. Ogodo (1984)1 SCNLR 372; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370.
An Appellate Court should not ordinarily substitute its own views of fact for those of the trial court. Refer to Balogun v. Agboola (1974)1 ALL NLR (Pt.2)66.
An Appellate Court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or the conclusion reached was wrong or perverse. Refer to Nwosu v. Board of Customs & Excise (1988)5 NWLR (Pt.93)255; Nneji v. Chukwu (1996)10 NWLR (Pt.478) 265.
In assessing evidence, a trial judge is enjoined to employ the imaginary scale principle. The evidence with probative value adduced by each side will be placed on an imaginary scale to see who has the upper hand. Refer to Mogaji v. Odofin (1978) 4 SC 91 at p. 93; Bello v. Eweka (1981) 1 SC 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413; Adisa v. Ladokun (1973) 1 All NLR (Pt. 2) 18.
Arguments were advanced by both sides in respect of certainty of the land. Same touched on the principle of definitive certainty. Land in dispute must be described clearly and sufficiently so that a surveyor can, using the description, produce a plan of the land. Refer to Arabe v. Asanlu (supra); Efetiroroje v. Okpaleke II (1991) 5 NWLR (Pt. 193) 517. If there is a survey plan of the land or both parties know it, the principle will not be applicable.
Let me state it here that there are five ways of proving ownership whenever title to land is in dispute. As depicted in Idundun v. Okumagba (1976) 9-10 SC 227, they are:
- By traditional evidence.
- By production of document of title duly authenticated and executed.
- By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
- By acts of long possession and enjoyment.
- 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.
The above have been restated by the apex court and this court in many cases. Refer to Piaro v. Tenalo (1976) 12 SC 31; Fasoro & anr v. Beyioku & ors (1988) 2 NWLR (Pt. 76) 263; Oladipupo v. Olaniyan & ors (2000) 1 NWLR (Pt. 642) 556 at p. 564.
It is not compulsory for a plaintiff to prove all the five enumerated ways as listed above. Proof through one of the five ways will suffice. But he must prove his title by cogent, satisfactory and conclusive evidence. See Ajkbionbare v. Omoregie (1976) 12 SC 11.
Learned counsel for the Appellant felt that Bello Edun held himself out as the absolute owner of the land; whereas the land belonged to Edun family. He maintained that where the head of the family sells family land in his private capacity or holds himself out as the absolute owner thereof, such a sale is void. I have given Exhibit 1 a careful scrutiny. I find that Bello Edun, the family head acted for himself and as accredited representative of Edun Family. This is extant in paragraph 1 of Exhibit 1. In Solomon & ors v. Mogaji (supra) at page 7, Bello, JSC, as he then was, pronounced ‘that it is trite law that sale of family land by the head of the family without the consent of the principal members is voidable at the instance of the non consenting members of the family: see Esan v. Faro 12 WACA 135; Ekpendu v. Erika (1959) 4 FSC 79; Aganran v. Olushi (1907) 1 NLR 67 and Mogaji v. Nuga (1960) 5 FSC 107’. Nnamani, JSC at page 69 also said that ‘it is settled law that if a head of family alienates family land without the consent of the principal members of the family the sale is voidable at the instance of any member of the family. See Raji Akano & anr v. Alhaji Yisan Ajuwon (1967) NMLR 7 at 10; Ekpendu v. Erika (1959) 4 FSC 79.’
I am of the considered opinion that Bello Edun, the family head, sold the land as an accredited representative of Edun family. His act was voidable at the instance of a principal member of Edun family. No member of that family has taken any step to void his act. And certainly, the Appellant who is not a member of Edun family is not on firm ground to challenge Bello Edun in respect of sale made to the Respondent. The sale is not void.
I agree with the Respondent’s counsel that identity of land can be proved by oral evidence or by producing a survey plan. See Mark Ugbo v. Aburince (supra) at p. 34.The Respondent tendered Exhibit 2 which is the survey plan of the land in dispute. In any event, the identity of the land is not in issue. Both parties clearly know same. The Appellant pasted notices on same and used earth mover to demolish fence and structures thereon; albeit, without just cause. He cannot hide behind one finger and say that he does not know the identity of the land in dispute.
The Appellant complained that the Respondent failed to file Exhibit 2 – survey plan in court. I agree that at worst, the tendering of Exhibit 2 equates to a mere irregularity. The appellant did not raise any objection to same at the trial court. I cannot see how the admission in evidence of Exhibit 2 occasioned any miscarriage of justice to the appellant. See Alade v. Olukade (supra); Oneh & ors v. Veronica Obi & ors (supra).
It is clear to me that the Respondent led evidence and tendered exhibits to show that he is a member of Ajego family of which Edun family is a stock. Vide Exhibit 1, he purchased the land in dispute in 1976 from Bello Edun, the accredited representative and head of Edun family for a consideration of the sum of N3,000. He took effective possession of the land in 1976. Thereafter he surveyed it as in Exhibit 2. He let out same to tenants to wit: P.W.3 and P.W4 for valuable consideration. The Respondent created right of way for the Appellant at the prompting of Bello Edun. He enjoyed quiet possession until 1994 when the Appellant pasted notices and disturbed Respondent’s tenants on the land. The Respondent produced purchase document as in Exhibit 1. He showed acts of ownership as his tenants were on the land between 1976 and 1994. See Idundun v. Okumagba (supra). The Appellant and his surveyor, D.W. 3, were unable to tie their survey plans with the land in dispute. It appears to me as if the Appellant was merely out for skirmishes all over the place.
Upon a careful reflection, I am of the considered opinion that if the evidence on both sides is put on an imaginary scale, the evidence adduced by the respondent must have an upper hand. See Mogaji v. Odofin (supra) at p. 93; Bello v. Eweka (supra). The Respondent, no doubt, proved a better title over the land in dispute than the Appellant.
I come to the unalloyed conclusion that the appeal lacks merit and it is hereby dismissed by me. The judgment of the learned trial judge delivered on 9th December, 1999 is hereby affirmed. The Appellant shall pay N5,000 costs to the Respondent.
Other Citations: (2006)LCN/2115(CA)
