Amusa Sanni V. Ebenezer Ayinde Ogunbode (2001)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

In the court below the plaintiff’s claim as per the writ in this matter against the defendant is as follows:

I. Declaration of Title to a Statutory Right of occupancy to all that piece or parcel of land situate, lying and being at Rosanwo Street, Ikate near Aguda Village, Ikeja District of Lagos State, Nigeria.

2. N500 damages for trespass committed by the defendant, his servants and, or agents on the said land.
3. Injunction restraining the defendant his servants and, or agents from further act of trespass unto the said land.

Pleadings were filed and exchanged by the parties at the court below. The matter then went to trial on the issues as joined on the statement of claim, amended statement of defence, and a reply to the statement of defence. Parties and their witnesses testified before the court below, sitting at the Ikeja High Court, Lagos State (Coram Hotonu J.). In a considered judgment all the three reliefs Sought by the plaintiff failed and his claim was dismissed.

Dissatisfied with the decision, plaintiff (i.e. appellant) has appealed to this court against the said decision and has raised 8(eight) grounds of appeal. Briefs of arguments expatiating the case for each side have been filed and exchanged between the parties. The appellant in his brief of argument has identified 6(six) issues for determination to wit:

1. Whether the learned trial Judge was right in dismissing the plaintiffs claim for declaration of a statutory right of occupancy, to the piece or parcel of land described in the writ of summons, and statement of claim having held that he was the true owner of the said land?
2. Whether the learned trial Judge was right in his view that the land in dispute, was the defendant’s land and not that claimed, by the plaintiff in his writ of summons and statement of claim particularly when there was no counter-claim before the court?
3. Whether there was sufficient issue raised in the pleadings to permit the learned trial Judge to admit evidence on whether the defendant’s land was in a different location from that of the plaintiff?
4. Whether the learned trial Judge considered the validity and took the correct view as to the evidential value of the defendant’s deed of title Exhibit f?
5. Whether the learned trial Judge was correct in his application of the principles of law as laid down in Elabanjo & another v. Darlington (1970) 1 All NLR 41, and with particular reference to the assessment of the evidence of the independent surveyor?
6. Whether on the evidence of the parties and the findings of the trial court, the plaintiff was not entitled to the Judgment of the court?

The defendant/respondent on his part has raised 3(three) issues for determination in the appeal and they read as follows:

1. Whether on the evidence before the court the plaintiff proved ownership and title to the actual piece of land in dispute?
2. Whether the defendant’s Lease Agreement Exhibit “F” was wrongly admitted in evidence and if so whether it can reasonably be held to have affected the decision of the learned trial Judge, and that the decision would not have still been the same if Exhibit “F” had not been admitted and;
3. Whether the learned trial Judge was correct in his application of the principles of law as laid down in the case of David Taiwo Elabanjo and Anor. v Joseph Darlington (1970) 1 All NLR 41 with particular reference to the assessment of the evidence of the independent surveyor?

The respondent’s issues as formulated have not only encompassed the issues raised by the appellant they would be much more helpful in dealing with the appeal and I therefore adopt them for this judgment.

The facts of this matter are not complicated. The plaintiff (i.e. appellant) has claimed he bought the land in dispute, a plot of land otherwise known as plot 12 in the Isaac John Layout from one Retired Magistrate Isaac John in 1975, as per a deed of conveyance dated 5/6/75, registered as instrument No.58/58/1504 in the Land Registry office, at Lagos. By the said deed of conveyance he took possession; he built a shed and erected a sign board there. It was when he wanted to erect a building on the land that he was first disturbed. His vendor Retired Magistrate Isaac John, bought a large track of land from Onitire family, by a deed of conveyance dated 15/3/56 and laid it out into plots. Because of the act of trespass committed by defendant in the land in dispute he has taken out this action. The defendant on the other hand has said he bought the land from Iguru family, of Itire in 1977 and obtained a receipt and that it was then a virgin land and swampy. He cleared and sand filled it and fenced it. Subsequently a lease agreement was executed in his favour by the head of Iguru branch of Onitire family. Both parties filed their survey plans marked Exhs. A and E & K for the plaintiff and defendant respectively.

Going by the argument as proffered by the appellant, he is contending that the trial court having found that he has been proved to be the owner of the land in dispute, it should have been so declared in his favour as the defendant has not made any claim. He also has submitted at P.5 of the brief about 23 lines, from the bottom of the page that, “once it is agreed that the land in dispute is the appellant’s land as claimed in the writ and statement of claim, the identity and location of the respondent’s land becomes relevant to the resolution of the appellant’s prayer for a declaration of title only if it falls within the disputed land.”

He has challenged the judgment on the ground that issue was not joined as per the pleadings on whether the respondent’s land is differently located from that claimed by the appellant, even though the respondent has raised issue of “size and shape” and no more, and he has maintained that the trial court suo motu put the respondent’s land in issue.

He also has contended that Exh. F i.e. the lease agreement of 22/6/83, is inadmissible by virtue of s.15 Land Registration Act, Cap. 99, Laws of the Federation and further that, he could take the point on appeal. See: Owonyin v. Omotosho (1961) 2 SCNLR 57, (1961) 1 ANLR 48; Minister of Lands Western Nigeria v. Dr. Nnamdi Azikwe (1969) 1 All NLR 49. Furthermore, that even at that the transaction has not been consented to by Governor by virtue of s.34 of the Land Use Act, 1978.

On the issue of the composite plan tendered by an independent witness, he has opined that Exh. M produced by him is unreliable as the witness did go to the land. And that the trial court has erred in applying the principle in Elabanjo v. Darlington (1970) 1 All NLR 41, as the circumstances in that case and this case are different. And finally that the weight of evidence has preponderated in his favour. He then urged the court to allow the appeal.

The respondent contends that the appellant has failed to establish the identity of the land in dispute he is claiming, and that his survey plan Exh. A and the oral evidence of PW4, plaintiffs surveyor and Exh. D – the composite plan prepared by him are completely at variance with Exh. M – the composite plan prepared by the independent witness. And that Exhibits A & D tell untruths of the land in dispute.

He observes on the obvious dearth of evidence to establish identity of the land in dispute and the equivocation in the plaintiffs statement on this issue, exacerbated by the untrue statements from his witnesses on the point. In the pleading, he has clearly pleaded that the land in dispute is situate at plot 12 of Isaac John Layout along Rosanwo Street, Ikate near Aguda village, Ikeja District of Lagos State. PW1 in his testimony has said it is at Rosanwo Street, Ikate Surulere; PW3 i.e. the building contractor in his testimony has said the land is at Itire area. The independent witness called by both parties has showed that the land in dispute is at Itire and not by Ikate near Aguda or Surulere, as claimed by the appellant. He has challenged the appellant on the evidence of a layout known as Isaac John Layout. He has observed that according to DW4, Iguru Family land is quite different from the land owned by Onitire family, and so has made the point that two rival claimants cannot be undisputed owners of the same piece of land. On identity of the land he has referred to and relied on Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41. Oke v. Eke (1982) 12 SC 218. The burden, he has asserted, is on the appellant to prove identity of the land he is claiming. See: Awote v. Owodunni (No.2) (1987) 2 NWLR (pt.57) 366, and he has failed to do so, he has submitted.

The respondent he contends, has given unshaken evidence of traditional history and his acts of ownership vis-a-vis, the disputed land. On Exh.F he contends that it is not in admissible in law as it is an agreement for a lease and therefore, not a registrable instrument. See: Araba v. Elegba (1986) 1 NWLR (pt.16) 334 and Kale v. Coker (1982) 12 SC 252 and being a contract it does not require the Governor’s consent under sections 21 and 22 of the Land Use Act, 1978. Submitting in the alternative, he says that even without Exh.F the respondent’s case remains the same, that is as robust and substantial as he led evidence of traditional history and tendered Exh. K i.e Plan of the land and that Exh. M – the composite plan also is supportive of the respondent’s case to show that the appellant is laying untenable claim to the respondent’s land. He refers to section 226(1) of the Evidence Act, Cap. 62 and Ibrahim Khali Yassin v. Barclays Bank D. Co. (1968) NMLR 380; Okirinta Ugbala & Ors. v. Awo Okorie & Ors. (1972) 12 SC at 13 – 14 to support his contention that the decision would all the same, still have been in his favour whether or not Exh. F went in.

In conclusion he says that the evidence led by the appellant is insufficient to sustain the claim. And the plans of the parties are material as for the identity of the land and that the independent surveyor produced Exhibit M from them and it is not necessary for him to go to the land and also that the trial Court is right to rely on the case of Elabanjo v. Darlington (supra). He then urged the court to dismiss the appeal.

The foregoing shows the opposing positions taken by the parties in the matter. Before examining the relative cases of each of the parties as put forward in the briefs, the point has to be noted that this court as an appellate court, is not to interfere with the findings of fact of the court below, that saw, heard and watched the demeanour of the witnesses, unless it is shown that the findings of the court below are perverse, or they do run counter to the evidence and pleadings and have thus occasioned a miscarriage of justice- but where however, the complaint is against non-evaluation of evidence or improper evaluation of evidence by the court below, then an appellate court is in as a good a position as the trial court, to embark upon such exercise. See: Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 and Atolagbe v. Shorun (1985) I NWLR (Pt.2) 360; Silli v. Mosoka (1997) 1 NWLR (Pt.479) 98; Narumal & Sons Nigeria Ltd. v. Niger Benue Transport Co. Ltd. (1989) 2 NWLR (Pt.106) 730 at 742. It is against the background of these principles that the issues in this appeal have to be tackled.

All the complaints raised for determination by the appellant in this appeal, are founded on findings of fact of the court below, and the onus is definitely on him to show how they have occasioned a miscarriage of justice.

The appellant is seeking a declaration, the identity of the land he wants declared for him has to be identifiable. In this respect, he has pleaded this point in the statement of claim. Paragraph 3 of the statement of claim to this effect reads thus:

“3. That land in dispute is Plot No. 12 of Isaac John Layout situate at Rosanwo Street, Ikate near Aguda Village, Ikeja District of Lagos State, the site plan is attached and marked Exhibit “A”.

The defendant in the amended statement of defence denied the averment in paragraph 3 of the statement of claim and stated further in answer in paragraphs 7 and 7a as follows:

“7. A copy of the lease hold agreement dated 22nd day of June, 1983, between Chief Kasali Asheni of Afin Oba Itire, Lagos, and the defendant as well as the plan No. LAT/1165/LA/83, and having the dimension of site of the land are herewith attached and marked as Exhibit “A and B” respectively and will be founded upon at the trial.

7a. That from the examination of the plan Exhibited with the statement of claim, and the one attached by the defendant to his statement of defence having regard to their sizes and shapes, the defendant avers that the plaintiff is making a wrong claim on the defendant’s land.

An expert opinion will be relied upon at the trial, to highlight the differences and establish this averment.

From the foregoing the identity and boundaries of the land in dispute are necessarily in issue. It is futile for the appellant to feign that he did not contest the issue in this matter at the court below. The records would debunk that contention.

The apparent equivocation of the appellant as to the identity and boundaries of the land is replete in the Record of Appeal. Appellant has contented that his Plot is No. 12 of Isaac John Layout at Rosanwo Street, Ikate near Aguda Village, in Ikeja District of Lagos State. PWI (i.e. his witness) in his evidence says it is at Ikate, Surulere. PW3 also (i.e. another of his witnesses) in his evidence has said it is at Itire area. The independent surveyor says it is in Itire not near Aguda. The picture shows a divided house that inevitably must collapse. No court would grant a declaration as sought in the claim on such flimsy evidence.

In the light of the pleading and the viva voce evidence of the witnesses as shown herein above it does not lie in the mouth of the appellant to seriously contend that the issue of identity and boundaries of the land are not pleaded. What therefore remains to be ascertained, is the trial Court’s disposition to this issue. But before then, I must venture to say that the appellant’s claim that the trial court ventured into the area suo motu, appears from the foregoing unsustainable.

The trial court in considering the issues of identity and location of the land in dispute had this to say at P.113 lines 8-19.

“Both the plaintiff and the defendant have adduced evidence sufficient to obtain declaration of title to statutory right of occupancy to their respective lands in Exhibits A and F. But what the plaintiff is saying is that his land is the very land at Aguda, the defendant is occupying as a trespasser. The crucial issue therefore is whether the lands shown on the survey plans attached to Exhibits A and F, are the same.

Relying on his composite plan Exhibit C. Mr. Seweje Licensed surveyor(PW4) has said in his evidence, that the land claimed by the defendant was bigger than that of the plaintiff but it was part of the land claimed by the plaintiff. This expert opinion was countered by the evidence of another expert Shipa Licensed Surveyor (DW3). He said in his evidence, that he prepared his own composite plan Exhibit L. Making use of the plans of both the plaintiff and the defendant. He found that as shown on Exhibit L, the plaintiff’s land was far away from that of the defendant.”

Also it went on at line 26 – 30 thus:

“As the two expert witnesses who are surveyors called by the parties have not reached agreement as regards the relative locations of the lands claimed by the parties an independent expert witness also a surveyor, was invited to prepare a composite plan of the lands claimed by the parties.”

The court below at P.114 line29 – 31 to P.115 line5 – 9 came to the conclusion on this issue, thus:

“The clear position, as I see it, is that the plaintiffs Land is somewhere at Itire ,and instead of looking for the land, he has come to the defendant’s land at Aguda to lay claim to it. The defendant is entitled to be on his land and plaintiff cannot obtain declaration of title to statutory right of occupancy in respect of the land which is not his own. The first leg of the claim therefore fails and should be dismissed.”

This conclusion cannot be faulted as it is not only logical, but a reasonable conclusion flowing from the premises. There are two ways of establishing the identity of the land in dispute that is; by oral description of the land and by survey plan. See: Kwadzo v. Adjei (1944) 10 WACA 274 and Udofia & Anor. v. Afia & Ors. (1940) 6 WACA 216.

In both cases, I am emboldened to say the appellant has failed woefully. The appellant’s description of the land in dispute as given by witnesses, have not synchronized and so cannot stand. The effect is that the appellant’s land is definitely not the instant land in dispute, but one about 90 meters farther away from the respondent’s land. Again, the survey plan Exhibit M by the independent surveyor has completely pulled the rug from under the feet of the appellant’s case. It is clearly in conflict with appellant’s case, thus showing that Exhibit A as well as Exh. C is unreliable, as it speaks untruths as to the identity and location of the land in dispute.

The effect of the foregoing finding, which has not been displaced by the appellant in this appeal to be perverse, is in conformity with a settled principle of law, that a party cannot have a declaration of title to land made in his favour, without producing a plan of the land showing accurately the identity and boundaries of the land claimed and to which judgment could be tied. See: Sakpaku v. Ahiaku (1942) 8 WACA 76; Awote & Ors. v. Owodunni & Ors. (1987) 2 NWLR (pt.57) 366; Kale v. Coker (1982) 12 SC 252.

There couldn’t be a better solution to resolving the impasse i.e. where the two surveyors for the parties disagreed, as to the identity of the land as it were, and as in the instant matter than to invoke the principle behind the decision in Elabanjo v. Darlington (supra). Both parties agreed to call the independent expert witness and having given unfavourable evidence against the appellant, his attempts to repudiate and castigate the independent witness and his evidence cannot be allowed in the circumstances. So far, the appellant is bound by his evidence. Exhibit M – tendered by the independent witness has showed that appellant’s land is about 90 meters away, and in Itire. This piece of evidence has completely collapsed the appellant’s case. Once the identity of the land the appellant wants declared in his favour, is not certain, no court would venture to make a declaration. See: Oke v. Eke (1982) SC 218.

Needless, emphasizing that the burden to prove the identity and boundaries of the land in dispute the appellant is claiming, is clearly upon him. See: Awote v. Owodunni (supra). This finding is fatal to the claim for declaration, meaning that the appellant has yet to skip the first hurdle in the exercise of identifying the location of the disputed land.

Nnaemeka-Agu, JSC in the case of Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141 at 154, expostulated on the principle to govern this issue in these words:

“It has of course been stated in a number of decided cases, beginning from Baruwa v. Ogunsola (1938) 4 WACA 159, that the first duty of a person who comes to court for a declaration of title, is to prove the area over which he claims with certainty. I believe the law should be regarded as settled, that although a plan may not be necessary in cases where the identity and precise boundaries of the piece or parcel of land in dispute are known, to the parties to the dispute… See Chief Daniel Allison Ibuluya & Ors. v. Tom Benebo Dikibo & Ors. (1976) 6 SC 97 at 107 and Chief Sokpui II v. Chief Agbozo III (1951) 13 WACA 241 at 242, where as in this case there is a dispute as to the boundary or identity or both such must be proved with certainty… So on this finding alone, the appellants failed to prove their claim for title.”

In this matter both the boundaries and identity of the land in dispute are in issue, and the appellant having failed to establish both of them with any certainty his claim must fail.

The next issue relates to Exh.F and its admissibility and the use if any, made of it by the court below and the effect of section 226(1) of the Evidence Act, 1990 would otherwise have in the event of Exhibit F being shown really to be inadmissible. Let me say at once that Exh. F an agreement for a lease is excepted from the operation of the provisions of the Land Instrument Registration Act, Cap.99, Laws of the Federation. See: Araba v. Elegba (1986) 1 NWLR (Pt.16) 333; Kale v. Coker (1982) 12 SC 252 at 268. The objection taken against Exhibit F in this regard cannot be sustained. The court below is right to have acted on Exhibit F.

I am also inclined to agree with the respondent that an agreement for a lease, is a contract and does not require Governor’s consent, under sections 21 and 22 of the Land Use Act. Any reference by the appellant in this regard to s.34 does not apply. There is however in the alternative cogent evidence received by the court below of the traditional history of the respondent’s title and again, there is the survey Plans Exhs. K and M (these would not be affected if Exh. F is impugned) on which to found in favour of the respondent. By the provisions of s.226(1) of the Evidence Act evidence abound on record, that even if Exhibit F were to be rejected which I do not decide, would otherwise sustain a finding that the land in dispute belongs to the respondent. It is settled law, that the onus is on the plaintiff to prove his entitlement to an order of declaration and he succeeds on the strength of his case and not on the weakness of the defence. See: Kodilinye v. Odu (1935) 2 WACA 336.

The implication of this principle is that the instant appellant has to succeed in this matter on the preponderance of credible evidence which is totally absent in this matter.

In the course of dealing with the foregoing issues in this judgment, I have covered all the issues raised by the appellant for determination, even though I have not expressly taken them seriatim. Finally putting the evidence of both parties on the imaginary scale there can be no doubt that the weight of evidence has preponderated in favour of the respondent. The appellant has failed in establishing his claim and the court below, is right to have refused the declaration and other reliefs as per the claim.

For all this, I find no merit whatsoever in the appeal. It is unmeritorious, accordingly it is dismissed. The judgment of the court below is affirmed. Costs assessed and fixed at N5,000.00 against the appellant.

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Other Citations: (2001)LCN/0932(CA)