Col. A. C. Ugwunze V. Chief Adegboyega Adeleke & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
This appeal is against the judgment of the High Court of Lagos State (Coram Hon. Justice J.A. Oduneye, J.) delivered on the 15th March, 2002 in suit No. 10/262/96.
The respondents as plaintiffs in the court below, sued the appellant as defendant claiming the following reliefs:-
“1. A declaration that the plaintiffs are the persons entitled to a statutory right of occupancy in respect of all that piece or plot of land situate, lying and being at Plot 44 Adebayo Mokuolu Street, Anthony Village, Lagos, and which with its boundaries, abuts, and measurements is more particularly shown and delineated on the plan attached drawn and edged red attached to the conveyance registered as No. 72 at page 72 in volume 1410 of the Lands Registry in the office at Lagos.
- N5,000,000.00 (Five million Naira) being special and general damages for trespass committed by the defendant, his servants and/or agents to the said land.
- Perpetual injunction restraining the defendant, his servants and/or agents and otherwise from further trespass to the said land and for interfering with the plaintiffs’ statutory rights to occupancy of the said land.”
The case of the plaintiffs/respondents was that the late Amusa Osuade Adeleke became seized of the land in dispute on the 3rd of February. 1973 by virtue of an indenture between Walbunk Estates (Nigeria) Limited and the late Adeleke who died, after purchasing the land in 1973. The defendant/appellant, on the other hand, pleaded that he bought the properly from the same Walbunk Estates (Nigeria) Limited in 1971 and was issued a receipt dated 3rd March, 1971. The appellant has developed the property by building a residential house where he has been in occupation.
After hearing the evidence led by both parties, the learned trial Judge entered judgment in favour of the plaintiffs granting the reliefs sought other than special damages. Being dissatisfied with that judgment, the appellant brought this appeal premised on the following seven grounds:
Ground One
Judgment is against the weight of evidence.
Ground Two
The learned trial Judge erred in law in holding that the plaintiffs are entitled to declaration of title to the land in dispute as administrators and administratrix of the estate of late Amusa Osuade Adeleke, when title to the said land is not vested in them under the letter of administration tendered and admitted as exhibit A.
Ground Three
The learned trial Judge erred in law when he held as follows:-
“I agree with the submissions of learned counsel for the plaintiffs Mr. Adewale that the plaintiffs as next of kins and the administrators of the personal property of the estate of late Amusa Adeleke will suffer no disability other than be regarded as executors de son tort of the estate of late Adeleke in which capacity they can still sue and do everything for the benefit of the estate of the deceased just as if they were the legal personal representatives or administrators of the real estate of late Adeleke – see the case of Udo v. Williams (1997) 1 NWLR (Pt. 483) page 548 ratio 3 at 550. See also sections 3(1) and 9(3) of Administration of Estate Law. Cap, 3. Laws of Lagos State, 1994. I therefore hold that the plaintiffs are entitled to sue as next of kins in respect of the property in dispute even though it was not included in the letter or administration exhibit “B”…
Particulars of error
(a) The plaintiffs having been granted letter of administration vis-a-vis the estate of late Adeleke, can no longer be regarded as executor de son tort for the purpose of vesting title in the land on them, same having not been included in exhibit B.
(b) The granting of letter of administration to the plaintiffs gave the plaintiffs the right to intermeddle with the property of the deceased, named in the letter of administration.
(c) Executors de son tort do not have capacity and privileges of maintaining an action in respect of the property of the deceased but render themselves liable not only to an action by the rightful executor or administrator but also to be sued by creditor or delegates of the deceased for intermeddling with the deceased property.
(d) The decision of trial Court is contrary to the decision of the Supreme Court in Ugu v. Tabi (1997) 7 NWLR (Pt. 513) 368, which decision is binding on the trial court.
Ground Four
The learned trial Judge erred in law in granting the plaintiffs’ claims for a declaration of title when from the evidence before the court both the defendant and the plaintiffs are agreed that the land was bought from the common vendor to wit: Walbunk Estates Limited and the defendant’s title from the common vendor was prior in time, that is in 1971 to that of the plaintiff who bought in 1973.
Ground Five
The learned trial Judge erred in law in holding that the receipt exhibit F issued to the defendants in 1971 and the survey plan exhibit E given to the defendant by his vendor were subject of suspicion which decision or conclusion was based on the fact that:
(a) The 1973 receipt was stamped in 1993 and.
(b) Exhibit E, the survey plan was a photocopy and not the original.
Particulars of error
(a) The late stamping of the receipt in 1971 is not uncommon in land transaction and the reason given by the defendant as to why it was necessary for him to stamp the receipt is not unreasonable.
(b) The fact that exhibit E is a photocopy of the survey plan certainly cannot lead to the conclusion that there was no sale of the land to the defendant in 1971 since the survey plan, exhibit E is only useful for purposes of identification and details of the land sold are in any event contained in exhibit F.
Ground Six
The learned trial Judge erred in law in placing a burden on the defendant to prove title to the land when the court held that the defendant’s failure to call his caretaker on the land and/or to establish what he did on the land between 1980-1993 were fatal to the defendant’s defence when:
(a) The burden of proving title to the land is on the plaintiff who must succeed on the strength of his case and not on the weakness of the defendant’s case.
Ground Seven
The learned trial Judge erred in law in not dismissing the plaintiffs’ claim for a declaration on the ground that the plaintiffs’ claim was time barred when from the evidence before the courts the plaintiffs were never put in possession of the land in dispute and even if they were put in possession (which is denied) they have abandoned possession of the land forever 20 years until they resurfaced again in 1996, to institute this action after the defendant has built on the said land. The appellant sought for an order setting aside the judgment of the court below’ and dismissing the plaintiffs’ suit.
The appellant’s counsel raised three issues distilled from the seven grounds for determination while the respondents’ counsel raised five issues. The appellant’s issues are as follows:-
i. Whether the plaintiffs have the capacity to institute the action to make them entitled to a declaration of statutory right of occupancy.
ii. Whether having regard to the fact that the parties had a common vendor, judgment ought to have been given to the defendant his sale being in time.
iii. Did the burden of proof rest on the plaintiffs, did they discharge that burden and did the equitable defences avail the defendant.
The first issue is tied to grounds 2 and 3, the second issue to grounds 4 and 5 while the third issue was distilled from grounds 1, 6 and 7. The learned counsel to the appellant argued these issues seriatim.
On the first issue, it was argued that it is incumbent on a plaintiff in any suit, to establish the capacity in which he sues otherwise the action must fail. See Emecheta v. Ogueri (1997) 8 NWLR (Pt. 516) 323 where my learned brother, Rowland, JCA at p. 337 commenting on the duty of a plaintiff to establish the capacity in which he sues observed thus:-
“What was in issue was the competence of the appellant to maintain the action: that is to say her locus standi. It is trite law that the first duty of any plaintiff in a suit is to establish the capacity in which he sues. This to my mind is a mandatory requirement of law contained in the rules of court. The plaintiff must discharge this burden or the action fails.”
Order 14 rule 13 of the High Court of Lagos State (Civil Procedure) Rules. 1994 provides as follows:-
“Trustees, executors and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives…”
The learned counsel to the appellant noted that the plaintiffs/respondents in the statement of claim pleaded at paragraph I that:”
The plaintiffs are the relations and next of kin of late Amusa Osuade Adeleke and they are suing as the administrators and adminstratrix of the estate of late Amusa Osuade Adeleke.”
At the trial of the suit, in order to prove the averments set out above, the 1st plaintiff stated as follows:-
“After the death of my late brother, we obtained letters of administration, I am one of the administrators. My brother’s wife – Mrs. Abisoye Adeleke and Mr. Olalere Eboda are the two administrators of his estate. Three of us are the plaintiffs in this case. This is the original of the letter of administration.”
The letter of administration was received in evidence as exhibit B, and it covers the personal property of the deceased as stated clearly thereon. In addition, the assets declared were money in the bank and personal chattels. It was contended that the land in dispute is not covered by exhibit B, which is the instrument of authority, relied upon by the plaintiffs/respondents as giving them locus to institute this action.
In dealing with this issue, the learned trial Judge held as follows:-
“It is noted that the defendant did not in any part of the statement of defense dated the 17th of May, 1999 deny paragraph one as quoted above and not having denied the plaintiffs’ capacity to sue as set out above, the defendant is deemed to have admitted the said averments in paragraph one as quoted above. Parties are bound by their pleadings and what is not denied or controverted is deemed to have been established. I hold therefore that the capacity of the plaintiffs to sue was never in issue and the capacity to sue is deemed to have been established ..”
The learned counsel to the appellant submitted that failure to deny an averment in pleadings by the defendant does not automatically remove the burden placed on the plaintiffs to satisfy the court that he is entitled to the relief sought. moreso, in a declaratory relief.
It is further submitted that in the instant case, the averment of the plaintiffs that they were entitled to commence the action based on letters of administration issued to them in that regard was one peculiarly within their knowledge. The defendant/appellant was in no position to challenge the averment not being a member of the deceased’s family or a beneficiary of his estate.
In Wiri and others II. Wuche and others (1980) NSCC page 1 at 5 Supreme Court held that “although the court may have granted leave for the plaintiffs to prosecute their claim in a representative capacity, it is still open to the court at the end of the trial after a review of the evidence, to find as a fact that the respondents were not authorized to prosecute for the community.”
It is pertinent to note that this pronouncement is in respect of absence of authority to prosecute a case in a representative capacity, which is clearly distinguishable from the facts and circumstances of the instant case.
Reference is also made to the case of Senator Abraham Adesanya v. President of the Federal Republic of Nigeria and another (1981) 1 All NLR (Pt. 1) page 1; (1981) 1 NCLR 249 where the trial court found that plaintiff had no locus standi even when neither of the parties had addressed the issue. At the Court of Appeal, though neither party raised the issue of locus standi, the court raised it suo motu. At the Supreme Court, it was finally decided that the plaintiff had no locus to sue and that the issue of locus standi is not dependent on the success or merits of a case but is a condition precedent to a determination on the merits.
It was further submitted for the appellant that the lower court was wrong to have held that because the defendant/appellant had not denied the plaintiffs/respondents’ capacity to sue, then in spite of the evidence to the contrary, the plaintiffs’ capacity to sue is deemed to be established. The learned trial Judge went on to state that the plaintiffs were “executors de son tort” and could still sue in that capacity.
The Black’s Law Dictionary, 6th Edition, page 448 defines an executor de son tort as follows:-
“De son tort – of his own wrong. An executor de son tort is an executor of his own wrong. A person, who assumes to act as executor of an estate without any lawful warrant or authority, but who by his intermeddling, makes himself liable as an executor to a certain extent. If a stranger takes upon him to act as executor without any just authority, he is called in law an -executor of his own wrong de son tort.”
See also Adamu v. Ikharo (1988) 4 NWLR (Pt. 89) 474
It is further submitted for the appellant that by provisions of the Administration of Estates Law and Order 14 rule 13 of the High Court of Lagos State (Civil Procedure) Rules, the institution of action by the plaintiffs was not lawful and on that premise cannot be supported.
This issue had been comprehensively considered by the Supreme Court in the case of Ugu v. Tabi (1997) 7 NWLR (Pt. 513) page 368. In that case the court held that-
“By the combined provisions of sections 2, 3 and 22 of the Administration of Estates Law, Cap. 2, Laws of Lagos State, 1973, a grant of letters of administration in respect of personal estate does not cover the administration of real property of the intestate.”
It is submitted therefore that the plaintiffs/respondents had no capacity to institute this action and as such are not entitled to a declaration of a statutory light of occupancy.
On the second issue, the learned counsel to the appellant went on to submit that the evidence before the court is that the defendant/appellant and the late Amusa Adeleke both purchased the land in dispute from a common vendor in 1971 and 1973 respectively. It is submitted that “where there are competing interests by two or more parties claiming title to the same land from a common grantor, the position both at law and in equity is that such competing interests will prima facie rank in order of their creation based on the maxim qui prior est tempore potiorest jure i.e. he who is earlier in time is stronger in law.” See Kari v. Ganaram (1997) 2 NWLR (Pt. 488) page 380.
The defendant/appellant tendered his purchase receipt exhibit F The purchase receipt is dated the 3rd of March, 1971. 1n the case of Odusoga v. Ricketts (1997) 7 NWLR (Pt. 511) page 1, the Supreme Court per Ogundare, JSC (of blessed memory) held that:-
“At common law, payment of purchase price coupled with possession gives the purchaser an equitable title …”
Also in the case of Clay Industries (Nigeria) Limited v. Aina (1997) 8 NWLR (Pt. 516) page 208 the Supreme Court per Iguh, JSC held that:-
“A legal estate cannot override equitable interest in land coupled with possession. Therefore, whether land is sold under native law and custom or merely sold but without executing a formal deed, if the purchaser is in possession for a long time, the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate.”
In treating the issue of possession by the defendant/appellant, the learned trial Judge held that:-
“From the evidence of the defendant, he bought the land Plot 31 in 1971 and was posted outside Lagos in 1971 but he left Adamu to look after the land from 1971 -1974. It was in 1973 that the plaintiffs got exhibit, A which is, also plot 31. The defendant did not explain the whereabouts of Adamu who would have thrown light on when he was on the land. The defendant said he came back to Lagos in 1980 and met the land safe and he started to build in 1993 and finished in 1994. The defendant did not tell the court what he did on the land from 1980 – 1993 when he started to develop the property. It was in the same year of 1993 that the receipt given to the defendant in 1971 was stamped. It was in the same year 1993 he got exhibit G as building plan.”
Under examination-in-chief, the defendant/appellant stated that:”
Immediately I bought the land, I cleared it in that it was pine bush and I planted maize and even put one hausa man called Adamu to look over the land … (sic) … In 1993, I started to develop the plot of land. My architect got a building approval for the land. I then started to build on the land.”
Under cross-examination, he stated further that:-
“I bought the land in dispute on 3-3-71. I bought it for 1,000 pounds. I put only one guard on the land. His name is Adamu. He was there on the land for 3 years from 1971 – 1974. I came back to Lagos in 1980.1 was then a major. I now have a building on the land in dispute. I started the building in ’93 and I finished it in ’94. It is a storey building in a double plot. There are six living rooms. I have an approved building plan. Chief Obikoya was close to me and I entrusted the safety of the land in him and I met the land safe when [came back to Lagos .. (sic) … I applied for a certificate of occupancy late in ’93 when I started the building. Chief Obikoya died not more than two years ago. I started living in the building on the land in dispute in 1994.”
Taking into consideration the evidence as set out above. it was erroneous for the lower court to base its findings in favour of the plaintiffs/respondents simply because the defendant/appellant did not tell the court what he did on the land from 1980 – 1993. The defendant/appellant made it clear in his evidence that he had entrusted the care of the land to Chief Obikoya and had planted maize on it. It was unnecessary for the lower court to require the defendant/appellant to present the security guard, who had left his employment over twenty years back, as a witness in court. The appellant had also explained the stamping of his purchase receipt exhibit F in 1993 by stating in his evidence under cross-examination that:-
“The 1971 receipt was stamped on 7th September, 1993 because I wanted to use the receipt to obtain a certificate of occupancy.”
It was submitted for the appellant that he had conclusively shown possession of the land from 1971 till date which evidence the plaintiffs/respondents have not refuted. It was further submitted by the learned counsel to the appellant that the defendant/appellant’s title being first in time is stronger in law and declaration of title ought not to have been granted to him.
On the 3rd and last issue raised, the appellant’s counsel submitted that the law is trite that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s. The onus in a claim for declaration of title is on the party who seeks the declaration. Temile v. Awani (2001) 12 NWLR (Pt. 728) page 726.
In the instant case, the learned trial Judge more or less placed the burden of proof on the defendant/appellant. It was submitted for the appellants that the court had a duty to first consider the title of the plaintiffs/respondents and decide upon it before considering the title of the defendant/appellant. In Owoade v. Omitola (1988) 2 NWLR (Pt. 77) page 413 the Supreme Court held that a Court, which picked on the case for the defence and demolished it before considering the plaintiffs case, was in grave error.
The lower court was therefore in error to have considered the title of the defendant/appellant first and was in further error to have discountenanced the credible evidence adduced by the defendant/ appellant. From the foregoing, the relevant question is whether the plaintiffs had discharged the onus placed on them. Section 146 of the Evidence Act provides that –
“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
The plaintiffs/respondents thus had the burden of rebutting the presumption of ownership in favour of the defendant/appellant. The plaintiffs did not do this and thus did not discharge the onus placed on them. See Bello v. Eweka (1981) 12 NSCC 48.
The plaintiffs/respondents having slept on their lights from 1973 till 1994, and the evidence before the court having shown that the land in dispute is the home of the defendant/appellant who had built upon it between 1993 and 1994 about two years before the case was instituted in 1996, the defence of laches should properly avail the defendant.
The appellant finally urged the court to allow the appeal and set aside the judgment of the lower court
he learned counsel to the respondents, however, raised five issues from the seven grounds of appeal as follows:-
- Whether on the appellant’s pleading at the trial court, the capacity of the respondents to sue was an issue at the trial court
- Even if the capacity of the respondents to sue was in issue (which is not conceded) are the respondents not vested with a standing of Estates Law and Common Law to sue?
- Whether the Supreme Court decision in Ugu v. Tabi is of any assistance to the success of the appellant’s appeal?
- Whether the appellant established any of the defences of adverse possession, laches, acquiescence, standing-by and statute of limitation raised in their pleadings?
5 Whether there is any basis for disturbing any of the finding of fact of the trial court or the decision reached thereon?
The first three issues were distilled from ground 3, the fourth issue from grounds 1, 4, 5, 6, and 7 while the fifth issue is said to be distilled from grounds 1, 4, 5, 6, and 7. The grounds of appeal especially ground 3 were prolix and the issues raised proliferated. Raising more than one issue from the same ground of appeal amounts to proliferation, which has been strongly deprecated and frowned at in a plethora of authorities by the Supreme Court and this court alike. These issues will for simplicity and straight forwardness, be married with the appellant’s issues later in this judgment after considering the respondents’ submissions thereon.
On the first issue, the learned counsel to the respondents submitted that the respondents’ capacity to sue as administrators and administratrix on the real estate of the deceased was not in issue before the trial court as that issue was neither pleaded nor raised at the trial court. It is, however, pertinent to note that the respondents pleaded in paragraph I of their statement of claim that the capacity in which they sued as relations and next of kins and as Administrators and Administratrix of late Amusa Osuade Adeleke.
In their capacity as next of kins, the plaintiffs/respondents qualify as “personal representatives” which is defined in the singular as “the executor original or by representation or Administrator for the time being of a deceased person. The fact that they are next of kins and personal representatives of the deceased qualifies the plaintiffs/respondents to represent the estate of late Amusa Osuade Adeleke and. thus, entitled to sue to protect same.
The respondent’s third issue borders on the consideration of the respondents’ capacity to sue as appraised by the Supreme Court in Ugu v. Tabi (1997) 7 NWLR (Pt. 513) page 368. It was submitted for the respondent that in Ugu v. Tabi (supra) capacity to sue was directly in issue at all times but in this instant case, the respondents’ capacity to sue was never in issue. Furthermore, from the facts of this case, the plaintiffs/respondents, who are at the worst executors de son tort, have a better title than the appellant, a stranger and trespasser. It was therefore submitted by the respondents’ counsel that the facts and circumstances of Ugu v. Tabi are inapplicable to this case.
On the fourth issue, the respondents’ counsel further submitted that there were inconsistencies and defects in the defendants/appellants’ oral and documentary evidence. He said the burden of proving long possession, numerous and positive enough to displace the legal title of the plaintiff was upon the defendant/appellant by virtue of paragraphs 4 and 5 of the defendant/appellant’s 3rd amended statement of defence and sections 137(1) and 139 of Evidence Act. 1990 and having failed to prove acts of long and undisturbed possession cannot avail him, Idundun v. Okumagba & Ors. (1976) 9 – 10 SC 227; Elias v. Disu (1962) 1 All NLR 214; (1962) 1 SCNLR 361; Abiodun v. Adehin (1962) 2 All NLR 550; (1962) SCNLR 305; University Press Ltd. v. I.K. Martins (Nig.) Ltd. Agu v. Nnadi (2002) 18 NWLR (Pt. 798) 103; (2002) 12 S.C. (Pt. 11) 173; (2000) 4 NWLR (Pt. 654) 584; Buhari v. Obasanjo (2003) 11 S.C. (Pt. 11) 173;(2003) 17 NWLR (Pt. 850) 438; Archibong v. Ita (2004) 1 S.C. 108 at 49 – 121; (2004) 2 NWLR (Pt. 858) 590. It was further submitted that the defendant/appellant has failed to discharge this burden.
The learned counsel to the respondents also submitted that by section 16(2) of the Limitation Law of Lagos State, the defendant who pleaded limitation must show that at least twelve years had elapsed between the time the cause of action arose and when the action is brought in court. In the instant case, only two years had elapsed between the time the cause of action arose and when the plaintiffs/respondent instituted the action. Thus it is submitted that the defence of limitation will not, avail the defendant/respondent in this case. Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) 105; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637; Odekilekun v. Hassan (1997) 12 NWLR (Pt. 531) 56; Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) 371.
In the circumstances, it was submitted for the respondents that the defences of adverse possession, limitation law, and equitable defences of laches, standing-by and undue delay were not established by the defendant/appellant.
On the basis of the pleadings and evidence adduced at the trial, it was submitted that the plaintiffs/respondents have established their case on the preponderance of evidence by virtue of section 135 of the Evidence Act. See Mogaji v. Odojil1 (1978) 4 S.C. 91. The plaintiffs/respondents were thus entitled to judgment as entered by the trial court.
The learned counsel to the respondents urged the court to uphold the judgment of the lower court entered on the 1st March, 2004 and dismiss the defendant/appellant’s appeal.
The respondents’ five issues could properly be accommodated within the three issues raised by the appellant. Thus, all issues raised may be properly determined by pronouncement on the three issues raised by the appellant, which are properly tied to the seven grounds of appeal.
Issue 1: As administrators and administratrix, the plaintiffs/respondents are required to show and rely on the instrument conferring such authority on them, that is the letter of administration. The plaintiffs/respondents have right to put in evidence the letter of administration as exhibit B under which they derived their authority to sue as administrators and administratrix. Their authority to sue in respect of the real estate of the deceased was then challenged by the defendant/appellant, having observed that the letter of administration exhibit B only covers the personal chattels and money in bank as against real property in respect of which the plaintiffs/respondents sued the defendant/appellant. Where one party affirms the existence of a fact and the other denies same, that fact is automatically put to issue. Thus, the plaintiffs/respondents capacity to sue in respect of real estate of late Adeleke was therefore in issue.
This issue regarding the capacity or locus standi of the respondents to institute the suit at the court below being a jurisdictional one could be raised at any stage of the proceedings and even for the first time on appeal. The argument of the learned counsel to the respondents that it was only raised at the final address stage is therefore untenable in law.
It is clear from their statement of claim that the respondents sued as next of kins and also administrators and administratrix of the estate of late Adeleke. The respondents’ capacity is therefore double edged. Thus, while they cannot sue as administrators under an authority to administer the personal estate of late Adeleke, one hardly doubts their locus standi to sue as next of kins of the late Adeleke. In their capacity as the next of kins, the respondents have a clear interest in the property in dispute.
The term locus standi denotes the plaintiffs’ capacity to sue in a court of law to enforce a legal right. Once the plaintiffs have a right or vested interest to protect and enforce legally and this has been disclosed in the statement of claim, onus on them to establish their locus standi to sue, which has been called to question, would have been discharged. The Supreme Court in the case of Disu v. Ajilowu (2006) 14 N.W.L.R. (Pt. 1000) 783 held per Tabai, JSC at page 787 as follows:-
“The plaintiff must in the statement of claim disclose sufficient interest or threat of injury to enable him to invoke the judicial process. In the instant case, the plaintiff asserted that she was a great grandchild of the original owner of the property, late Disu Dada. She asserted that on his death. late Disu Dada was survived by three children amongst them Tawakalitu Ajiun, her grandmother. The totality of the assertions in the statement of claim showed that she had an interest in the properties in dispute. Thus she had the necessary lacus standi to sue.”
The plaintiffs were only required to show a nexus between them and the right claimed in the statement of claim. The plaintiffs/respondents in this case being next of kins of the late Adeleke have, without doubt, shown sufficient interest in the cause of action being the right to ownership of the property in dispute. In Ejiwunmi v. Costain (WA.) Plc (1998) 12 NWLR (Pt. 576) 149 at 164 Dahiru Musdapher, JCA (as he then was) expressed the following views:-
”The first way to determine whether a plaintiff has the necessary capacity to institute the action is to examine the statement of claim and see if he has any enforceable connection with the subject matter. There must be a nexus between the plaintiff and the disclosed cause of action concerning his rights or obligations, which have been breached or threatened to be violated.”
See also Sakata v. Dangaji (1998) 11 NWLR (Pt. 575) 656 at 665 where my Lord Umaru Abdullahi, JCA (as he then was) clearly spells out the criteria for determining the locus standi of a plaintiff as follows:-
“In ascertaining whether the plaintiff in an action has locus standi, the pleadings. i.e. the statement of claim, must disclose a cause of action vested in the plaintiff and the rights and obligations or interests of the plaintiff which have been violated …. In this case, the statement of claim filed by the respondent as plaintiff left no stone unturned. The statement of claim clearly disclosed a cause of action vested in the respondent.”
The respondents as next of kins clearly have an interest more than anyone else in any property in which the interest of the deceased Adeleke is involved. The first issue is accordingly resolved in favour of the respondents and grounds 2 and 3 of the appeal to which that issue was tied have thus failed.
The second issue questions which of the two parties are entitled to judgment in view of the fact that they both purchased the same piece of land from the same vendor. It was common ground that the appellant bought the land in 1971 for 1,000 pounds as evidenced by the purchase receipt while the late Adeleke bought the same piece of land from the same vendor in 1973 as proved by exhibits ‘F’ and ‘A’ respectively. The learned trial Judge in the judgment noted that exhibit ‘F’ being the purchase receipt of the appellant is dated 3rd March, 1971 and that after the purchase, the defendant/appellant left Lagos on posting leaving one Adamu to keep watch on the land on his behalf from 1971 to 1974. The defendant/appellant came back to Lagos in 1980 and started building on the land in 1993, which he completed in 1994. However, the learned trial Judge on the face of this evidence before him went on (at pp. 64-65 of the record) to say:-
“I am of the view that exhibit F the receipt of 1971 and the survey plan exhibit E is highly suspect and I do not believe that both of them are genuine. I do not believe the evidence of the defendant that he bought in 1971. There is no evidence that the defendant was on the land between 1974 when Adamu the may-guard left the land in 1980 when the defendant came back to Lagos.”
The purchase receipt exhibit ‘F’ clearly establishes the date of purchase of the piece of land by the defendant/appellant and that couple with possession is sufficient in law to give the appellant at least an equitable title. The Supreme Court in Odusoga v. Rickens (supra) at p. 6 has held thus:-
“At common law, payment of purchase price coupled with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vendor to convey legal title to him. But where the purchase price is not fully paid, the purchaser will have no right to enforce specific performance.”
The learned trial Judge however, as noted earlier, resorted to extrinsic issues regarding the whereabout of Adamu and that the defendant/appellant did not tell the court what he did on the land from 1980 when he came back to Lagos to 1993 and started building on the land. The law requires the plaintiff prove his title to land or at least better title than that of the defendant claiming similar interest over the same piece of land as in this case. The plaintiff must discharge this duty credibly and cannot rely on the weakness of the defendant’s case. In the case of Clay Ind. (Nig.) Ltd. v. Aina (supra) the Supreme Court held at p. 226 as follows:-
“In land cases the plaintiff when claiming a declaration of title must succeed on the strength of his case. The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title claimed. The plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case may not generally help him and the proper judgment will be for the defendant. Where, however, the case of the defendant lends support to the case of the plaintiff, it is recognized that the court cannot ignore it in arriving at a conclusion as to which side to believe.”
It was common ground also that both parties purchased the same piece of land from the same vendor. While the late Adeleke whose estate the plaintiffs/respondents represent bought the land in 1973, the defendant/appellant purchased that same land from the same vendor in 1971 by paying 1,000 pounds which was then the Nigerian currency. The appellant’s purchase being the first in point of time clearly takes priority over that of the respondents’, which was done subsequently in 1973. In fact as at the time the late Adeleke purportedly purchased the land from Walbunk Estates (Nigeria) Limited, the later had nothing in fact or in law to sell to the former having already divested itself of interest over that land in favour of the appellant in 1971. There was legally no sale to the late Adeleke whose estate the plaintiffs/respondents represent. The Supreme Court in the case of Kari v. Ganaram (supra) has held that:-
“Where as in the instant case, there are competing interests by two or more parties claiming title to the same land from a common grantor, the position both at law and in equity is that such competing interests will prima facie rank in order of their creation based on the maxim qui prior est tempore potior est jure i.e. he who is earlier in time is stronger in law.”
My Lord Iguh, JSC at p. 403 paragraphs F – H has made the following observation:-
“In the second place, it cannot be doubted that with exhibit A being valid title in favour of the appellant, exhibit Y. which was created subsequently by a common grantor in respect of the same piece or parcel of land cannot be a valid grant. This is because after a party has fully divested himself of interest in land, no right vests in him to deal with such land by way of further alienation any more. See Okafor Egbuche v. Chief Idigo (1934) 11 NLR 140, Adamu Akeju and another v. Chief Suenu and others (1935) 6 NLR 87, Sanyaolu v. Coker (1983) 3 S.C. 124 at 163; (1983) 1 SCNLR 168: Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 etc. The principle is based on another maxim, to wit, nemo dat quod non-habet which means that no one can give that which he does not have. Exhibit A having effectively vested statutory right of occupancy in respect of the land in dispute to the appellant on the 29th January, 1986, his grantor cannot subsequently lawfully vest the same statutory right of occupancy in respect of that same piece of land to the 1st respondent.”
The Supreme Court similarly held in Auta v. tbe (2003) 13 NWLR (Pt. 837) 247; (2003) 11 MJSC 1 that:-
“Where, as in the present case, the two or more competing documents of title upon which parties to a land dispute rely for their claim of title to such land originated from a common grantor, the doctrine of priorities pursuant to the well recognized maxim, qui prior est tempore, potior est jure, meaning that he who is first has the strongest right, dictates that the first in time lakes priority. See Atanda v. Ajani (1989) 3 NWL.R. (Pt. 111) 511.”
I cannot agree more. The appellant’s sale being the first in time definitely takes priority and not only that. l also effectually renders the second sale to the late Adeleke invalid, null and void. This issue is accordingly resolved in favour of the appellant and thus grounds 4 and 5 of the appeal to which the second issue was lied have succeeded.
The third issue deals with the burden of proof and discharged of same and the equitable defences of laches and acquiescence raised by the defendant/appellant. The onus of proof of little to land is always on the party seeking declaration in respect thereof. Not until such burden is discharged. it will never shift. The Supreme Court has so held in the case of Temile v. Awani (supra) at p. 755 in the following terms:-
“In an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s … The onus in a claim for declaration of title is on the party who seeks the declaration.”
The Supreme Court similarly in Owhuonda v. Ekpechi (2003) 17 NWLR (Pt. 849) 326; (2003) 12 WSC 1 held that:-
“In an action for declaration of title to land the onus lies on the party claiming title to satisfy the court that he is entitled on the evidence brought by him to declaration of the piece of land claimed.”
The burden of proof was unfortunately misplaced upside down by the lower court by placing it more or less on the defendant/appellant and simply relying on production of registered deed of conveyance by the plaintiffs as proof of title. The court has a duty to first consider the title of the plaintiffs/respondents and decide whether by the evidence adduced they have discharged the burden placed on them to prove their title or better title before the burden shifts on the defendant/appellant.
The defendant/appellant has however, painstakingly shouldered the burden by adducing evidence regarding his title acquired by purchase of the land from Walbunk Estates (Nig.) Ltd. on 03-03-1971 and by evidence of possession of the land from the time of purchase to date. It was also in evidence that the defendant developed the land by building a house between 1993 and 1994 and has been living therein since completion. The presumption under section 146 of the Evidence Act is that a person in possession of property is presumed to be the owner thereof as noted above strongly favours the defendant/appellant.
The burden of proving title to land could be discharged by the plaintiffs/respondents by any of the following five ways:-
- By traditional evidence
- By production of documents of title
- By proving acts of ownership (such as selling. leasing. renting out or farming on all or part of the land) extending over a sufficient length of time. or which are numerous and positive enough as to warrant the inference that the person is the owner.
- By proving acts of long possession and enjoyment of the land.
- By proof of possession of connected or adjacent land in circumstances rendering probable that claimant is also owner of such adjacent land. (Section 46 Evidence Act).
The plaintiffs/respondents did not, at the trial, lead sufficient evidence to prove a better title than that of the defendant/appellant. In fact, the latter established better title than the former by proving equitable interest, which is earlier in time than that of the respondents coupled with development and physical possession of the land in dispute.
The defence of laches and acquiescence was pleaded in paragraph 6 of the 3rd amended statement of defence led in oral evidence by the defendant. The consideration of these defences would normally have arisen where the plaintiffs have discharged the burden on them by proving title or better title, which has not been done by the plaintiffs/respondents. It is however, from the evidence before the trial court that the plaintiffs/respondents have virtually abandoned the land for over twenty years from 1973 when it was bought to 1996 when they filed their action. Even the period of two years from the time they claimed to be aware of the building erected by the defendant/appellant in 1994 to 1996, when the suit was filed does not indicate any vigilance on the part of the plaintiffs/respondents. Having seen the house built by the defendant/appellant coupled with the physical residence of the appellant on the land, it was an act of acquiescence for the plaintiffs/respondents to waste another two years before filing an action in court. The third issue is equally resolved in favour of the appellant and consequently grounds 1, 6 and 7 from which that issue was tied have succeeded.
Having resolved the second and third issues in favour of the appellant, the appeal is meritorious and succeeds perforce. The appeal is accordingly hereby allowed. The judgment of the lower court entered on the 15th March, 2002 is hereby set aside. Cost is awarded to the appellant assessed at N10.000.00.
Other Citations: (2007)LCN/2417(CA)
