David Itauma Vs Friday Jackson Akpe-ime-2000

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The appellant herein as plaintiff sued the defendant (respondent) at the Eket High Court claiming the following reliefs:

(a) A declaration that there is no valid and/or any lease agreement between the plaintiff and the defendant whereby any grant was made to the defendant of the land called “Anyankana” or any part thereof.

(b) A declaration that the defendant is a licensee whose licence to occupy the said land or site was determined either by notice or breach of condition under a parol agreement.

(c) Order of ejection.

(d) Injunction.

The plaintiff’s case as stated in his amended statement of claim and his evidence in court is that first, he is an illiterate. Secondly, that he granted the defendant a mere permission to erect a temporary stall in the forecourt of the land at an annual rent of #4 (four pounds) in 1962. See paragraphs 7-9 of the amended statement of claim. He denied ever granting the defendant a 99year lease over the land in dispute.

The case of the defendant is that in 1962, he approached the plaintiff for a lease of the piece of land in dispute. The plaintiff granted him a 99 year lease at an annual rent of #4 (Four Pounds). Lease agreement tendered as Exhibit B was thereafter prepared and executed. He said he was let into possession by the plaintiff. The learned trial judge in a reserved judgment dismissed the plaintiff’s claim. The plaintiff’s appeal to the Court of Appeal was dismissed. He has now further appealed to this court upon a number of grounds.

Counsel for the plaintiff formulated three questions for determination in this appeal. These are:

1. Did the courts below advert their minds to the onus and burden of proof and did the respondent discharge the burden of proving that appellant granted him a lease of a portion of his land in Exhibit B
2. Whether the courts below considered that it was not a part of the defendant/respondent’s case as pleaded that he was granted the land in equity or according to the customary law of the people.
3. Having regard to the fact the appellant’s illiteracy was admitted, did the courts below consider clear provisions of Section 3 of the Illiteracy Protection Ordinance Cap. 88 which was in force in 1962

The defendant has adopted the issues for determination formulated by the plaintiff.

I shall consider the three issues raised together. To appreciate the case of each party, it is necessary to have a recourse to their respective pleadings. The plaintiff, in paragraphs 1,2,3,4,5,6,7,8 and 9 of the amended statement of claim averred as follows:-

“1. The plaintiff is a night watchman and an illiterate working for the Ministry of Works and Transport Eket and is a native and resident of Usung Inyang, Eket in the Eket Local Government Area within jurisdiction of the Honourable Court.

2. The plaintiff is the owner and in possession of the land known and called “Anyankana” situated along Eket-Oron Road, Eket.
3. The plaintiff lives and has a house and shop situated on part of the said “Anyankana” land.
4. The said “Anyankana” land with three buildings situated thereon is more particularly delineated and edged pink on the plan No. RIM/3425 attached to this statement of claim.
5. In this statement of claim the word “premises” or site means part of the “Anyankana” land occupied by the defendant and the word “land” means where the con permits the “premises” or “site”.
6. The plaintiff lives in the rear building marked “A” indicated in the said plan and lets out building “C” as a watch repairer’s shop and restaurant which situates to the far right and the land and building marked “B” situated nearest Eket-Oron Road presently in the occupation of the Barclays Bank Nig. Ltd. Eket, is a subject matter of this action against the defendant.
7. In or about the year 1962 on a date uncertain, the defendant approached the plaintiff requesting that he (defendant) be given permission to erect a temporary shed in the fore court of the plaintiff’s land (the said Anyankana land) for use in selling provisions and drinks. The plaintiff was not agreeable to this proposition.
8. However, after much persistence by the defendant and the promise of the defendant that his stay will be temporary and that he will vacate the site whenever requested to do so by the plaintiff, the plaintiff succeeded (sic) to the request of the defendant but not without stressing to the defendant that in the near future the plaintiff intends to erect a permanent building on the site.
9. For the use of the site by the defendant, the plaintiff charged the defendant an annual rent of four pounds which by conversion is N8 (Eight naira).

In his response, the defendant pleaded in paragraphs 2,3,4,5,6,7,8,9,10, 11 and 12 as follows:

2. The defendant admits paragraph 1 of the plaintiff’s amended statement of claim. The said land is also known to the plaintiff as “Anyankana Okukwot Usung Inyang.”
3. The defendant denies paragraph 2 of the plaintiff’s amended statement of claim and adds that the plaintiff is only in possession of a small portion of the land and not the land which is the subject matter of this suit. The other portion were (sic) the Barclays Bank building is situate is in the possession of the defendant by a lease agreement for 99 years executed between the plaintiff and the defendant on 19th March, 1962. The said agreement and the survey plan of the land No. IN/5805 drawn by a Licensed Surveyor Mr. I. O. Inyang will be founded upon at the trial.
4. The defendant admits paragraph 3 of the plaintiff’s amended statement of claim.
5. The defendant is not in a position to deny or admit paragraph 4 of the plaintiff’s amended statement of claim and will put the plaintiff to the strictest proof of the allegations therein contained.
6. The defendant is not in a position to admit or deny paragraph 5 of the plaintiff’s amended statement of claim.
7. The defendant is not in a position to admit or deny paragraph 6 of the plaintiff’s amended statement of claim and will put the plaintiff to the strictest proof of the allegations therein.
8. The defendant denies part of paragraph 7 of the plaintiff’s amended statement of claim but admits that in or about 1962, the plaintiff with full consent, granted a lease of the portion of land on which the Barclays Bank building situates to the defendant for a term of 99 years at the rent of four pounds now N8.00 (eight naira) per annum, which the defendant paid regularly yearly and for which receipts dated 19th January, 1967 thumb impressed by the plaintiff, 25th January, 1964 signed by the plaintiff’s son, one Samuel David, January, 1965, 25th January, 1966, 1st April, 1967, 17th April, 1968 and 4th April, 1969 all signed by the plaintiff’s son, one Etuk Itauma, will be relied upon by the defendant.
9. The defendant further adds that when the plaintiff granted the said lease, he was an adult and was fully aware of the implications thereof.
10. The defendant further adds that the lease granted him by the plaintiff was not for the building of a temporary shade for selling provisions and drinks but for any purpose whatsoever.
11. The defendant denies paragraph 8 of the plaintiff’s amended statement of claim to the extent which it alleges that the defendant’s lease was “Temporary and that he will vacate the site whenever requested to do so by the plaintiff.” However, in further answer to paragraph 8 of the amended statement of claim, the defendant says that the plaintiff granted him a lease for 99 years renewable every ten years at the rent of four pounds now N8.00 (eight naira) and that the plaintiff was only entitled to the reversionary interest at the end of the ninety-nine years. In further answer to paragraph 8 of the plaintiff’s amended statement of claim, the defendant adds that the plaintiff has never at anytime stressed to the defendant that in the near future he, the plaintiff, would like to put a permanent building on that site.
12. The defendant admits paragraph 9 of the plaintiff’s amended statement of claim.

From these averments, certain facts emerge. First, that the radical title to “Anyankana” land was in the plaintiff. Secondly, that whereas it is conceded that the plaintiff made some form of grant of the portion of the land, the subject of this suit, to the defendant in or about 1962, the issue is whether what was granted was a determinable right to erect temporary sheds as the plaintiff claims or a lease for 99 years as the defendant maintains. Thirdly, it was not a part of the defendant’s case as pleaded that he was granted the land in equity or according to the customary law of the people.

It has been submitted for the plaintiff, having regard to the facts and circumstances of this case, that the onus of proof on the plaintiff, was to adduce evidence of his title to the whole of Anyankana land but as this has been conceded on the pleadings, the burden shifted on the defendant to prove a grant by lease of the portion he claims. It was argued that in civil cases, the burden of proof is not static, rather it keeps shifting from the plaintiff to the defendant. Learned counsel for the plaintiff relied on the case of Osawaru v. Ezeiruka (1978) 6 – 7 SC 135.

For his part, the defendant agrees with the proposition of law relating to the burden of proof in civil cases as stated in the case of Osawaru v. Ezeiruka (supra). It was however contended that the defendant led credible evidence to prove the grant by the plaintiff. Learned counsel for the defendant referred to paragraphs 3, 8,9, 10, 11, 13 and 14 of the further amended statement of defence and submitted that the defendant adduced enough evidence to show that the plaintiff signed and executed Exhibit ‘B’.

Now, in a claim for declaration of title to land, the onus is on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration he seeks. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, then the proper judgment is for the defendant: See- Kodilinye v. Odu (1935) 2 WACA 336. In the present case, the onus of proof on the plaintiff was to adduce evidence of his title to the whole of Anyankana land. However, the defendant has conceded that the radical title over Anyankana land is in the plaintiff. In these circumstances, the burden shifted on the defendant to prove a grant by lease of the portion he claims. This is so because in civil cases, the burden of proof is not static; while the burden of proof initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa.

The onus was on the defendant to prove the grant. In this regard, he was under a duty to establish by credible evidence that the plaintiff signed and executed Exhibit ‘B’. This is more so as the plaintiff denies ever granting the defendant a 99 year lease over the land in question. I think this is the crucial issue in this case. The defendant clearly hung his case on Exhibit ‘B’ and no more. See paragraph 14 of his further amended statement of defence which states:

“14. In further answer to paragraph 10 of the plaintiff’s amended statement of claim, the defendant states that there has never been any prior understanding between the plaintiff and the defendant over the said lease outside the terms of the lease as spelt out in the lease agreement itself. The said lease agreement and the plan of the portion of the land which was granted by the plaintiff to the defendant for a term of 99 years will be founded upon at the trial.

The defendant will put the plaintiff to the strictest proof of the allegation contained in paragraph 10 of the amended statement of claim.”

Clearly therefore, the defendant’s case would succeed or fail on due proof of the lease. I shall say more on this later in the judgment.

I must now examine the evidence before the court of trial. I start with the evidence of the plaintiff. Part of his evidence-in-chief runs as follows:-

“I am in court with the defendant today because in 1962 when I came home, the defendant approached me and asked me for a place to set up for the sale of his drinks. The defendant wanted to sell palm wine. I came home from my work at Etebi to see my wife and children at Eket. The land the defendant asked me to give to him is called Anyankana Usung Inyang. The land is situated along Eket/Oron Road, Eket. At that particular time, I was still living on that land with my family. When the defendant came to approach me for the land, I told him that I was living on that land with my family. Apart from the defendant being a young man, I rejected the request of the defendant because of my wife and my daughters. When I came back home again, the defendant approached me for the second time and begged me for the second time. I then gave the land to the defendant. Before I handed over the land to the defendant, I told him that I would be collecting four pounds from him as annual rent. I then went back to my station at Etebi. Before I left to Etebi, I did not give the defendant any other conditions nor make any written agreement with him. I am an illiterate. I do not know how to read and write. It is not true that I executed any written agreement with the defendant. It is not true that I granted the lease of the land to the defendant on a 99year lease. I gave the defendant another condition that he would have the land at any time I wanted to use it for my personal business.

When he was cross-examined, the plaintiff maintained that:-

“I showed the defendant a portion of land to stay and sell his drinks. I asked the defendant to build a temporary place on the land and then quit whenever I would ask him to do so .”

Again under cross-examination, the plaintiff testified thus:

“The defendant did not approach me to sell the land to him for four hundred pounds. I did not sell the land to the defendant for 400pounds or for any other amount…

I did not measure any dimension of the land where he would set up the temporary building. I only asked him to stay temporarily on the land. There was no other person present when I gave the land to the defendant except my wife …”.

I now turn to the evidence called by the defendant. He testified in his own behalf and called one witness. In his testimony, the defendant said:-

“The plaintiff is a native of Usung Inyang Eket. He is my landlord in respect of the land now in dispute. The plaintiff is a retired night watchman. He was working as night watchman at E.N.D.C. before he retired. The plaintiff was working at Etebi at the time. On 19/3/62, I went and negotiated with the plaintiff for a lease of land at Okukwot Usung Inyang situated along Eketi Oron Road. The plaintiff accepted to lease the land to me. There were witnesses when he accepted to lease the land. The plaintiff eventually leased the land to me. The name of the land is “Anyankana Okuquot” situated along Eketi Oron Road, Eket. The plaintiff also calls this particular land “Anyankana Okuquot Usung Inyang”. When the plaintiff agreed to lease the land to me, he fixed that I with my witness should come on 19/3/62. I went with my witnesses. The plaintiff went and showed me and my witnesses the land which he agreed to lease to me. The plaintiff’s witnesses were also there. We settled for the rent in respect of the lease. We fixed the rent at four pounds per year. The plaintiff asked me to give him goat and drink and I did so. I paid the 4pound rent to the plaintiff before the execution of the lease. I told the plaintiff that I would put up a permanent building on the land. I eventually put up the building in 1962 on the land. I completed the building in early 1963. I entered into the lease agreement. The plaintiff thumb printed the document and his uncle’s son by name Etuk Jacob Itauma wrote the plaintiff’s name on the document in the presence of five witnesses, two from the side of the plaintiff and three from my side. The persons who signed on the side of the plaintiff were George Mbuk and Etuk Jacob Itauma, the son of the Senior brother to the plaintiff. I signed the document and my junior Sunday Jack Akpe Ime or Ekong Ime, Chief Michael Umanha Obot, village Head of Iko Eket and Joseph Akpe also signed. When the defendant was cross examined, he testified as follows:

” …. I called Nathan Essien to prepare the agreement for me. I cannot remember whether I said in 1980 that it was the typist in my vocational school who typed the agreement. I was running a vocational school at that time. The agreement might have been typed in my school. I was not the person who typed the agreement. I do not know the person who typed the agreement. But I know that the agreement was drafted by Nathan Essien. I remember that there was a condition that the agreement was to be renewed after ten years. (Italics mine).

The defendant’s lone witness Joseph Akpe testified as DW2. In his evidence-in-chief he said:

“I was present when the agreement between the plaintiff and the defendant in respect of the land in dispute was made. I thumb printed on the agreement as a witness. There were other people present when the agreement was made… .The names of other people who were present with us when the agreement was made apart from me, the plaintiff and the defendant were:-

(1) Wife to the plaintiff;

(2) Akpan Jacob Itauma, son to the plaintiffs half brother

(3) George Mbuk;

(4) Chief Michael Umaha Obot; and

(5) Nathan Essien who drew up the agreement.”

Under cross-examination, this witness stated as follows:-

“The agreement was drafted by one Nathan Essien before he took it for typing. It was typed by Nathan Essien. Nathan Essien sat in the house of the plaintiff and typed the agreement. It was not typed in the vocational school. It was the plaintiff who procured Nathan Essien to type the agreement. Nathan Essien is from the same village with the plaintiff that is Usung Inyang Eket. After the amount of rent was agreed upon, it was the plaintiff who directed Nathan Essien to write what he said. It was the plaintiff who engaged Nathan Essien to write the agreement. ” (Italics are also mine for emphasis).

There are contradictions apparent in the evidence of the defendant and his witness (DW2).

While DW2 named the plaintiff’s wife as one of the persons who witnessed the signing of the agreement, the defendant did not. Again while DW2 said that Nathan Essien who prepared and typed the agreement was also present at the ceremony, the defendant was silent on it. More importantly, the defendant said that he called Nathan Essien to prepare the agreement, his witness said that it was the plaintiff who engaged Nathan Essien to do so. It was also the evidence of DW2 that it was Nathan who typed the agreement in the house of the plaintiff. The defendant himself does not know who typed it and the place where it was typed.

It must be remembered that the plaintiff denied in his pleadings and on oath that he ever signed or executed Exhibit ‘B’. So that, in the face of these contradictions in the evidence of the defendant and his witness, it should have been obvious to the Court of Appeal that the conclusion by the learned judge that the defendant established the grant was not borne out by the evidence before him.

I must add here that the plaintiff is an illiterate. This is not in dispute. Plaintiff pleaded this fact in paragraph 1 of his amended statement of claim. On the face of Exhibit ‘B’ which he was alleged to have signed, there is no jurat duly signed and the name and address of the writer were not given as required by law. Although the defendant claimed that it was Nathan Essien who prepared Exhibit “B” he was not called as a witness moreso as the plaintiff has strongly denied ever signing Exhibit ‘B’. No reason was given for the failure to call him.

One last point. As I have already indicated, the defendant clearly hung his case on Exhibit ‘B’ and no more. See paragraph 14 of the further amended statement of defence which I have set out earlier on in this judgment. In his 22 paragraph statement of defence the defendant did not plead customary grantor title in equity. A party in a civil case is bound by his pleadings: see Emegokwue v. Okadigbo (1973) 4 SC 113 at 117; Ogbechiev. Onochie (1988) 1NWLR(Pt.70) 370; Ugov. Obiekwe (1989) 1NWLR (Pt.99) 566; North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd. (1914) AC (H.L.) 461. Any evidence called by a party which is contrary to his pleadings goes to no issue. I am in agreement with learned counsel for the plaintiff that evidence on title in equity or grant according to native law and custom is strictly immaterial and goes to no issue and must be and should have been disregarded by the two courts below.

In my judgment the defendant did not discharge the onus placed on him to prove the alleged grant to him by the plaintiff. In the result this appeal succeeds and is allowed by me. I set aside the judgment of the Court of Appeal which affirmed the decision of the trial court. I enter judgment for the plaintiff as per his claim. The plaintiff is entitled to costs assessed at N10,000.00 in this court, N500.00 in the trial court and N2,000.00 in the Court of Appeal.

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SC.23/1995