Mr. Cyril Anosike V. Dr. Babatunde Dinyo (2016)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABUBAKAR, J.C.A.
This is an appeal against the Judgment of the Lagos State High Court delivered by Obadina J, on the 6th day of December 2011. The Respondent herein who was Claimant at the Court below claimed against the defendant Appellant by his Amended statement of claim dated 25th day of March 2009 the following reliefs:
i. A Declaration that the Claimant is the rightful owner of the land in dispute and covered by Certificate of Occupancy No. 42/42/1998B otherwise known as No. 27 Hakeem Dosunmu Street, Ago-Okota.
ii. A DECLARATION that the entry of the Defendant and his workmen on the land covered by the certificate of Occupancy No.42/42/1998B is unlawful and constitutes trespass.
iii. AN ORDER commanding the Defendant, his servants, Agents/privies howsoever described to vacate the land and/or property forthwith and deliver vacant possession thereof to the claimant.
iv. AN ORDER OF PEREPETUAL INJUNCTION restraining the Defendants either by himself, servants, agents, and/or privies howsoever described from remaining upon the land or otherwise re-entering upon the land and/or property or
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otherwise continuing with any construction work thereon or otherwise disturbing claimant’s propriety rights thereon or from further acts of trespass on the land.
v. AN ORDER for damages for trespass and/or a reasonable compensatory sum for continually occupying the land illegally since 1997 and hurrying the construction of the land illegally in spite of the pendency of this suit seeking to restrain the Defendant from doing so and thereby depriving the claimant its enjoyment and use thereof.
vi. AND for such further Order or other Orders as this Honorable Court may deem fit to make and appropriate in the circumstance.
The Appellant as defendant at the Court below filed his statement of defense and counter-claim dated 23rd day of March, 2009 wherein he counter-claimed against the Plaintiff/Respondent as follows:
i. Declaration that the Defendant Counter/Claimant is the owner in possession of the parcel of land known as Plot 27, Akeem Dosunmu Street, Ago-Okota.
ii. N20,000,000.00 (Twenty million naira) being damages for trespass and the wrongful eviction of the Defendant/Counter-Claimant and family from his house situate at plot 27 Akeem
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Dosunmu Street, Ago-Okota, Lagos from the 5th February, 2002 to the 3rd September, 2002 when the wrongful eviction was set aside by the Honorable Justice Adebajo.
iii. Perpetual injunction restraining the Claimant, Servants, Agents, and/or privies from further disturbing the peaceable possession of the Defendant on the parcel of land situate at plot 27 Akeem Dosunmu Avenue, Okota, Lagos.
At the trial before the lower Court, parties in this appeal tendered documentary evidence and gave oral evidence in support of their respective claims, and upon the adoption of their Final Written Addresses, the Court below delivered its judgment on the 6th day of December, 2017 in favor of the Claimant (now Respondent in this appeal) to the effect that the Respondent is the rightful owner of the land in dispute covered by the Certificate of Occupancy No. 42/42/1998 more particularly delineated in survey plan No. MAL/57A/87 dated 6th May, 1987 known as No. 27 Hakeem Dosunmu Street, Ago Okota, the lower Court also awarded to the Respondent damages in the sum of N100,000.00 for the continuing occupation of land since 1997 and hurrying construction of the building
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despite the pendency of the suit seeking to restrain the Appellant from doing so and the deprivation of the Respondent of enjoyment and use thereof. The lower Court dismissed the Counter-Claim and awarded N20,000.00 as general damages to the Appellant.
The Appellant became aggrieved by the Judgment of the lower Court and therefore filed Notice of Appeal containing 8 grounds of appeal on the 21st day of December 2011. The grounds of appeal filed by Appellant less their respective particulars are reproduced as follows:
1. The Learned Trial Judge erred in law and misdirected himself when he held that the Defendant/Appellant’s plot of land, which is the land in dispute, is the same as that of the Respondent.
2. The Learned Trial Judge erred in law and misdirected himself when he held that Respondent’s purchase receipt i.e. Exhibit D1 from the Okota family is earlier in time and takes priority over the Appellant’s receipt Exhibit D8 from the Okota family.
3. The Learned Trial Judge erred in law and misdirected himself when he held that Exhibit D7’s alteration was inconsequential since the Respondent based his claim on Exhibit P1 and other
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documents.
4. The Learned Trial Judge erred in law and misdirected himself when he held that the Respondent’s land covered by Certificate of Occupancy No. 42/42/1998 and delineated in Survey Plan No. MAL/57A/87 dated 6/5/1987 is now said to be known as No. 27 Hakeem Dosunmu Street, Ago Okota.
5. The Learned Trial Judge erred in law and misdirected himself when he held that the strength of the Respondent case was further buttressed by the fact that the Respondents’ wife Mrs. Mildred Modupe Dinyo owned the plot of land adjacent to the Respondent’s land which fact was never impeached or discredited.
6. The Learned Trial Judge erred in law and misdirected himself when he attached heavy weight on the Report and evidence of Surveyor Agbenla based on Exhibits A, B, and C tendered by him at the trial to arrive at the judgment for the Respondent.
7. The learned trial judge failed to consider the issue of proper identity of land in question in view of the conflicting evidence of the Respondent’s witnesses.
8. The Learned Trial Judge erred in law and not fair to the Appellant when he awarded a sum of N20,000.00 as damages in favour of the
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Appellant for the wrong act of eviction against him by the Respondent, which occasioned great loss to him.
The Appellant’s Brief of Argument was filed on the 19th day of March, 2014 by learned Counsel Chibuzor Ezechukwu, Esq. while the Respondent’s Brief was filed on the 24th day of April, 2014 and deemed as properly filed and served on the 16th day of March 2016. Learned Senior counsel Layi Babatunde, SAN, filed the Respondents brief of argument. The Appellant crafted four issues for determination from Appellants grounds of appeal; the issues are reproduced as follows:
1. Whether the trial Court was right in holding that the claimant is the rightful owner of the land in dispute when there were sufficient facts and materials before the trial Court showing that the plots of land claimed by the parties although fell under Lagos State acquisition were different from each other.
2. Whether the trial Court was right in holding that the purchase Receipt of the Respondent from Okota family dated 14/1/76 and issued in the name of Dr. Babatunde Dinyo takes priority over the Appellant’s receipt dated 4/3/76 also from Okota family when evidence at the
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trial showed that Respondent became a Doctor in 1978 and could not have a receipt issued to him in 1976 as Dr. Babatunde Dinyo.
3. Whether the trial Court was right in holding that the strength of the Respondent’s case was further buttressed by the fact of non-impeachment of Respondent’s wife evidence regarding her own plot of land adjacent to the Respondent’s land, when the Appellant did not claim to own any land along Baba Ewe Street, but at along Hakeem Dosunmu Avenue Okota.
4. Whether the judgment of the lower Court is not against the weight of evidence before the Honourable Court.
The Learned counsel for the Respondent on the other hand distilled sole issue for determination; the sole issue is also reproduced as follows:
Whether the learned trial judge was right based on the pleadings and evidence before the Court to have awarded in favor of the Claimant/Respondent in the terms in which the Court did.
?ISSUE ONE
In his submissions on issue one learned counsel for the Appellant submitted that the trial judge granted the orders/claim of the Respondent without proper evaluation and due consideration of the evidence before him,
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and that there were sufficient facts and or materials before the trial Court to warrant refusal of the orders sought by the claimant/Respondent.
Learned counsel argued that the land claimed by the Respondent is the land along Baba Ewe Street, Ago Okota street Lagos, while the land counter-claimed by the Appellant is Hakeem Dosunmu Avenue (formerly Wilson Avenue) Ago Okota Lagos State. He argued further that both streets still exist as distinct streets. Counsel referred to MICHEAL v.ODUNZE & 4 ORS [2007] 13 NWLR (Pt. 1050) 1 at 247; LASISI AREMU (substituted for Buraimoh Ogunleye) v. ALHAJI LAWAL ADETORO [2007] 16 NWLR (Pt. 1060) 244; PAUL CHARLIE & 3 ORS v. CHIEF E.T. GUDI & 2 ORS [2007] 2 NWLR (Pt. 1017) 91 and AKPAN SAM ADUA v. AKPAN UDO ESSIEN & 4 ORS [2010] 14 NWLR (Pt. 1213) 141 to submit that the burden is on the party claiming title to establish with clarity and certainty and prove the identity of the land where issues are joined.
ISSUE TWO
On issue two, Learned counsel for the Appellant submitted that the trial judge erred in law and misdirected himself when he held that the purchase receipt of the Respondent from
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Okota family dated 14th January 1976 and issued in the name of Dr. Babatunde Dinyo takes priority over the Appellant’s receipt dated 4th March 1976 also issued by Okota family when evidence at the trial showed that Respondent became a doctor in 1978 and not at the time the receipt was issued. Counsel further submitted that the burden of proof is on the claimant to prove his title upon preponderance of evidence and must succeed on the strength of his own case except where the Defendant’s case itself supports Claimant’s case or contains evidence on which the Claimant is entitled to rely. He referred to CHIEF GODSPOWER DIMKA & 2 ORS v. AGBO CHIOMA & 7 ORS [2010] 9 NWLR (Pt. 1200) 482, NSIRIM v. NSIRIM [2002] 3 NWLR (Pt. 755) 697, WOLUCHEM v. GUDI (1981) 5 SC 291, and CLEMENT ODUNUKWU v. DENIS OFOMATA & OYIBOJIOBI OFOMATA [2010] 18 NWLR (Pt. 1225) 404 to contend that the claimant must satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
Learned counsel for the Appellant contended that the evidence before the lower Court showed that the Respondent got married in 1985, and that the
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purchase receipts of the Respondent and that of his wife could not have taken priority over that of the Appellant of 4th March 1976. He further contended that the trial judge while evaluating evidence ought to have examined and perused most carefully documents and evidence before him to ensure that the credibility and reliability of evidence is ascertained and applied towards the just determination of the case.
ISSUE 3
Learned counsel submitted that the Appellant did not claim to own any land at along Baba Ewe street and thus not in his place to dispute a claim in respect of the land at along Baba Ewe Street. Counsel submitted that one of the ways of proving or establishing title to land is 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. He referred to IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227.
Learned counsel argued that Surveyor Agbenla had earlier given evidence at the trial as PW3 for the Respondent and confirmed that the two plots of land in issue between the parties are different though both
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fell on Lagos State Government Acquisition. Counsel contended that the subsequent evidence of Surveyor Agbenla that the Appellant’s plot of land is across Baba Ewe street while the Respondent land is on Baba Ewe street is contrary to Exhibit C tendered by him as none of the Respondent’s survey plans fell on Baba Ewe street, therefore the evidence of Surveyor Agbenla is replete with irreconcilable contradictions, very doubtful, and unreliable.
ISSUE 4
Learned counsel submitted that the evidence of the Claimant/Respondent as contained in the pleadings and oral evidence at the trial and the documents tendered in Court do not support the judgment of the trial Court on an analysis of the evidence in respect of the claim. Counsel further submitted that the claimant under cross-examination admitted that he became a medical doctor in 1978 and not in 1976 when the purchase receipt, Exhibit D1 was issued to him by the Okota family described him as a doctor, and that it was in evidence under cross-examination that the claimant only got married to his wife in 1985.
Learned counsel contended that there was evidence that the Appellant had been on the
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land since 1976, as his purchase receipt dated 4th March 1976, Exhibit D8 was never faulted at the trial. Learned counsel submitted and urged this Court to hold that the judgment of the lower Court is against the weight of evidence.
The Respondent’s sole issue argued at pages 4-16 of the Respondent’s brief Learned Counsel contended that the issue No. 4 is incompetent as the Appellant cannot raise an issue outside and unrelated to the grounds in the Notice of Appeal, he urged this Court to discountenance Issue No. 4. He citedNWAKWO & ANOR v. (EDSC) U.A. (2007) 1-2 SC 145 at 161-162. Learned Counsel submitted that since the Appellant did not frame issues for determination from grounds 3, 4, 6, 7 and 8 in the Notice of Appeal, the said grounds are deemed abandoned and ought to be struck out. He referred toUKIRI v. GECO-PRAKLA (NIG.) LTD (2010) 6-7 SC 192 at 205, and OGBE v. ASADE (2009) 12 SC (Pt. III) 37 at 53 and submitted that the findings of the trial Court against the Appellant at pages 652-657 of the record of appeal therefore remain valid and unchallenged.
Learned counsel submitted that there are 5 established ways to prove title to
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land, and a Claimant needs not prove all the 5 ways. He referred to IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227 and AIGBOBAHI v. AIFUWA (2006) 2 SC (Pt. 1) 81 at 86-87. Counsel contended that both parties tendered evidence in proof of their respective claims on the subject matter of the dispute, and that Exhibit P11, which is the Gazette, issued by the Government of Lagos State confirmed that the land in dispute actually belonged to the Lagos State Government and not any individual. Counsel contended further that the Respondent has shown in pleadings and evidence before the Court that he ratified his title to the land with the Lagos state Government being the actual owners, while the Appellant/ Defendant did no such thing.
Learned counsel argued that the Respondent established by pleadings and evidence that he had been in possession and occupation of the land in dispute when he first purchased the land from the Okota family in 1976 and had erected a fence round the property before the Appellant broke into the land in 1997. Learned counsel argued that DW1, one Wilson Akiosi who was purportedly instrumental to the said purchase by the Appellant from the Okota
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family denied under cross-examination that anyone farmed on the land in dispute at the time the Appellant claimed he did. Learned counsel further argued that the Appellant did not tender any Building Approval or call any Workman as witness to prove his claim that he started the construction of a building on the land in 1997. He submitted that where there is dispute as to who of the two rival claimants is in possession of a disputed land, the law presumes that the person having a valid title to the land is the person actually in possession. He referred to EFANA v. ADEKUNLE (1961) 5 ENLR at 55 and SOLOMON v. MOGAJI & ORS (1982) 11 SC (Reprint) 1 at 9, and submitted that the lower Court was right to have held that the Respondent was the rightful owner of the land in dispute and that the Appellant continued to aggravate the act of possession even while the proceedings lasted by continuing to hurriedly build on the land in complete disregard of the pending proceeding. He referred to MILITARY GOVERNOR OF LAGOS STATE & 2 ORS v. OJUKWU [1986] 1 NWLR (Pt. 18) 621 at 634.
?Learned counsel submitted that the Respondent proved his ownership of the land and
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that the assertion of the Appellant as to the identity of the land in dispute deserves to be ignored because pleadings and evidence show that the plans by which parties identify their land reveal that the parties are disputing over the same land even though they identified the land by different street names. He referred to EDJEKPO v. OSIA (2007) 3 SC (Pt. 1) 1. Counsel further referred to paragraph 16 (i) of the Claimant’s Amended Statement of Claim and paragraph 22 (i) of the Defendant’s Amended Statement of Defence and Counter-claim where both parties identified and described the subject matter of the dispute as 27, Hakeem Dosunmu Street/Avenue, Okota, Lagos State. Counsel argued that Exhibit P7 issued by Oshodi/Isolo Local Government Area and other evidence before the Court below showed and confirmed that the street where the land in dispute is situate was first named Baba Ewe street and later renamed Wilson Street, Ago Okota Lagos, and presently Hakeem Dosunmu Street, Ago Okota, Lagos. It was further contended by Learned Counsel for the Respondent that the Deputy Surveyor General confirmed that Exhibit P1, Appellant’s Survey Plan was done without the
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Surveyor General’s consent and could not have been ratified, and that the coordinates used in Exhibits P1 and P4 were different, and that Exhibit P4 is the correct survey plan. Learned counsel further submitted that the parties had a running battle over the land in dispute, which culminated in the suit at the lower Court, the land was therefore obviously known to both parties. He referred to AWOYOLU v. YUSUF (2006) 2 SC (Pt. 1) 120 at 129-130, and OLADUNJOYE v. AKINTERINWA & ANOR (2000) 4 SC (Pt. 1) 19 at 39-40.
?Learned counsel submitted that the Appellant’s submissions on issue No. 1 that the Respondent’s land is at Baba Ewe street Ago Okota Lagos and different from the Appellant’s land, which is at Hakeem Dosunmu Avenue, Ago Okota is misleading and ought to be discountenanced because it is misconceived and intended to mislead this Court. Learned Counsel cited ANYAWU & 7 ORS v. UZOWUAKA & 13 ORS (2009) 7 SC (Pt. 1) 40 at 66 to submit that where a party has counter-claimed on the same piece of land in dispute as in this case, the issue of identity of the land in dispute becomes otiose, and therefore of no moment. Counsel submitted that the
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Respondent has proved his title to the land and that the Court was right to have held that the Respondent is the rightful owner of the land in dispute, and that unless the findings of the lower Court are perverse, an Appellate Court will not interfere. He argued that the decision of the lower Court has not been shown to be perverse in any way.
Learned counsel contended that the Okota family from which both parties claimed to have bought the land in dispute had no title to pass as the land was vested in the Government of Lagos State, and Exhibit P4 being the Certificate of Occupancy issued by the Lagos State Government tendered by the Respondent shows that the Lagos State Government ratified the purchase by the Respondent which was found by the lower Court to be earlier in time in relation to the purchase claimed by the Appellant.
Learned counsel submitted that the arguments on when the Respondent became a Doctor and got married were not revealed in the pleadings of the party in the Court below and evidence led on those facts goes to no issue. He referred to KODE v. YUSSUF (2001) 2 SC 85 at 108-109 and urged this Court to discountenance the
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Appellant’s submission which is grounded on inadmissible evidence not pleaded at the Court below.
On the testimony of Surveyor Agbenla, learned Counsel contended that the first time he testified was when he was subpoenaed to testify on whether or not the land in dispute was under the Government Acquisition, while the second time was when he was directed by the trial Court to produce a composite plan of the Land in dispute. Counsel therefore submitted that Surveyor Agbenla’s Report based on the lower Court’s Order of 16th September, 2009 upon which both Counsel to parties duly cross-examined him is not contrary to Exhibit C tendered by the said surveyor Agbenla, and that the evidence of Surveyor Agbenla is credible, reliable, and not full of contradictions. Learned counsel also submitted that from the pleadings, evidence and Surveyor General’s report and evidence in Court, the plans by which parties identified their land reveals that the parties are disputing over the same land which bore different street names at diverse times. He referred to EDJEKPO v. OSIA (supra), and urged the Court to discountenance the submissions of the Appellant’s counsel as
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the said submissions are misconceived and designed to mislead the Court.
Learned counsel in conclusion urged this Court to resolve the sole issue in favor of the Respondent and dismiss the appeal with substantial cost.
RESOLUTION OF ISSUES
In resolving this Appeal, I find the sole issue raised by the Respondent to be all encompassing and its determination will effective and completely determine the issues in controversy in this appeal.
For the purpose of clarity, the issue is “Whether the learned trial judge was right based on the pleadings and evidence before the Court to have awarded in favor of the Claimant/Respondent in the terms in which the Court did”.
Learned Counsel for the Appellant argued that the land claimed by the Claimant/Respondent is different from the land claimed by the Appellant as per his Statement of Defense/Counter-Claim, thus raising the issue of identity of the land in dispute. According to the Appellant, while the Respondents claim is with respect to a land situate along Baba Ewe Street, Ago Okota, Lagos, the Appellant’s claim as per his counter-claim is at Hakeem Dosunmu Avenue (Formerly Wilson
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Avenue), Ago Okota, Lagos.
While the onus is on the Claimant in an action for declaration of title to land to show the area of the land to which his claim relates, the identity of a land will be in issue only if the defendant in his statement of defense makes it so by specifically disputing the area, location or size of the land as described by the Claimant in his Statement of Claim. The Supreme Court in ANYANWU v. UZOWUAKA (2009) 13 NWLR (Pt. 1159) 445 SC held as follows:
“In NWOBODO EZEUDU & ORS v. ISAAC OBIAGWU (1986) 2 NWLR (Pt. 21) 208 at 220 this Court, Per Oputa, JSC spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said:
“The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defense made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the
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boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.” Per TABAI, JSC (Pp. 34-35, paras. E-C).
See: also ADENLE v. OLUDE (2002) LPELR-129 SC.
A careful perusal of the Appellant’s statement of Defense, particularly paragraphs 2 and 9 thereof show that the Defendant/Appellant made the identity of the land an issue, which must be resolved. The said paragraph reads as follows;
2. The Defendant admits paragraph 2 of the Statement of Claim to the extent that he resides at No. 27 Akeem Dosunmu Avenue, Ago Okota Lagos but denies the fact that Akeem Dosunmu Avenue was formerly called Baba Ewe street and therefore put the Claimant to the strictest proof of same at the trial…
9. With further reference
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to paragraphs 4 and 6 of the Statement of Claim, the Defendant avers that his landed property i.e. Plot 27 Akeem Dosunmu Avenue, Okota, Lagos was not covered by Certificate of Occupancy No. 42/42/1998B purportedly obtained by the Claimant and that at no time was Akeem Dosunmu Avenue, Okota, Lagos called Baba-Ewe street, Ago Okota, Lagos, both being distinct from each other at Okota. The Defendant shall at the trial prove that Baba-Ewe Street is different from Akeem Dosunmu Avenue and that at no time was Akeem Dosunmu Avenue referred to as Baba Ewe Street.”
On the issue of identity of the land, the learned trial judge held as follows at pages 651 to 652 of the record of appeal:
“Defence counsel tried unsuccessfully to discredit the Deputy Surveyor General, the Report and the Plans submitted. If there was no need for a composite plan, the Court would have delivered this Judgment over two years ago. It was because the assistance of the Surveyor General was needed to show the relationship between the lands covered by the survey plans tendered that the order was made.
In the determination of credibility of witnesses, the demeanor, personality,
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reaction to questions under cross examination are all factors to be taken into consideration by a trial judge. Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990).
I have taken these into consideration. I see absolutely no reason to doubt the credibility or competence of surveyor Agbenla. Throughout the over 8 years trial of this case, I came to accommodate the style of advocacy of defendant counsel. He could try the patience of an angel. Surveyor Agbenla withstood his style and greatly assisted this Court.
I attach weight to his report and the plans submitted.
I hold that the names by which the parties call the land in dispute, whether Baba Ewe, Wilson or Hakeem Dosumu is immaterial.
The plans by which they identify their land that the parties are disputing the same land though they identify the land by different street names. Edjekpo v. Osia (2007) 3 SC (Pt. 1) 1.
They Deputy Surveyor General identified the land in dispute during cross-examination as the land the defendant is occupying. He said if there is no dispute, the parties would not have been ordered to submit their plans to the Surveyor General for composite
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plan.”
It is obvious that the learned trial judge placed substantial reliance on the report and evidence of the Deputy Surveyor General in reaching his conclusion that the identity of land is not in dispute. While the Appellant’s counsel argued that the identity of the land is in issue, counsel however failed to indicate any evidence on record in order to buttress this stance thereby contradicting the evidence of the Deputy Surveyor General. It is trite law that unless a finding of fact is seen to be perverse, an Appellate Court will not interfere or disturb such findings of fact by a trial Court, even if considering the facts and circumstances of the case, it would have reached a contrary conclusion or finding. It is only in instances where the findings of fact do not relate to the evidence led or the facts are not in evidence, in which case the Court would be seen as having relied on facts which are not in evidence before it that this Court will then be justified in interfering with the findings see: NWOBODO v. ONOH & ORS (1984) LPELR-2120 (SC) where the Supreme Court, per BELLO, JSC (later CJN) herd at pages 37 to 38 as follows:
“It is
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settled law that a Court of Appeal does not interfere with the findings of fact of a Court of first instance which has the opportunity of seeing the witnesses and watching their demeanor unless it is satisfied that that Court has not made any use of that advantage or the finding is perverse and cannot reasonably be supported having regard to the evidence or the finding is an inference from the established facts so that an Appeal Court is entitled to draw its own conclusion or the trial Court has applied wrong principle of law?”
See: also OSHE v. OKIN BISCUITS LTD (2010) 11 NWLR (Pt. 1206) 482, I am not convinced that the lower Court was wrong when it held that the identity of the land is not in issue. A fortiori, it is obvious from the claim and counter-claim of the Appellant and Respondent respectively, that they independently sought for declaration of title to the land known as No. 27 Hakeem Dosunmu Street, Ago Okota, Lagos State. This is apparent from paragraph 16(1) of the Respondent’s Statement of Claim as well as paragraph 21(1) of the Appellant’s statement of claim found at pages 301 and 305 of the record of appeal respectively.
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Accordingly, the contention of the Appellant is that the land is called at different times by different names is of no moment. The Supreme Court in EDJEKPO v. OSIA (2007) ALL FWLR (Pt. 361) 1617 at 1648 (SC) held as follows:
“It is not strange, in fact it is a common feature in claims of title to land that parties to the dispute always call the land in dispute by different names and will always identify different landmarks as constituting the boundary features of the land in dispute, see Aromire v. Awoyemi (1972) ALL NLR 105 at 116. Despite the above tendency, the Courts have always seen through the contrivances and determined the real issue in controversy between the parties which is, in reality, the actual person or party entitled to be declared the owner or entitled to the right of occupancy of the land in dispute. Looking closely at the observation of the learned trial Judge and having regard to the issues joined in the pleadings, it is my considered view that the learned trial Judge was simply considering the issue whether the parties were talking of the same land but calling it by different names or whether they were talking of two separate and
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distinct pieces or parcels of land as the two names appear to suggest. I hold the further view that to say that the land though called by two different names by the parties know the identity of the land in that con or that the parties are claiming the same piece or parcel of land is not to determine the extent and boundaries of the land in issue particularly as the parties joined issues as to the boundary marks and people with whom, they shared boundaries with the said piece of land in dispute and those people and boundary marks are not identical. That being the case, it is clear that the subsequent finding of the trial Judge as to the extent and identity of the land in dispute is not contradictory of the earlier finding which, as already demonstrated, relates only to the name of the land in dispute.” Per Onnoghen, JSC.
It is evident, as rightly noted by the learned trial Court Judge, that the identity of the land is not in issue, and that the land disputed by the parties is one and same even though the street on which the disputed land is situate was at different times known by different names.
Having determined that the identity of the
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land in dispute is not in issue, I will consider the question as to whether the learned trial Judge was right based on the pleadings and evidence before the Court to have awarded in favor of the Claimant/Respondent in the terms in which the Court did.
Both parties are in agreement with the age-long principle of law that there are five ways to prove ownership of land, and both referred to the case of IDUNDUN & ORS. v. OKUMAGBA & ORS (1976) 9-10 S.C. (REPRINT) 140 in their respective briefs of argument. This principle of law has remained unchanged over the years and has been affirmed by the Supreme Court more recently in the following cases, IYEOLA v. PEDRO (2014) LPELR-22915(SC), EDE & ANOR. v. MBA & ORS. (2014) LPELR-23035 (SC), and DUDU ADDAH & ORS v. HASSAN SAHI UBANDAWAKI (2015) LPELR-24266(SC). The five ways by which title or ownership of land could be proved are as follows:
(1) By traditional evidence.
(2) By production of documents of title duly authenticated and executed.
(3) By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true
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ownership.
(4) By acts of long possession and enjoyment, and
(5) 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 five ways mentioned above are disjunctive, that is, in proving title or ownership, proof of any one of the five ways mentioned above constitutes sufficient proof of ownership.
It is the contention of the Appellant’s counsel that the Learned trial judge erred in law and misdirected himself when he held that the purchase receipt of the Respondent from Okota family dated 14th January 1976 and issued in the name of Dr. Babatunde Dinyo takes priority over the Appellant’s receipt dated 4th March 1976 also issued by Okota family when evidence at the trial showed that Respondent became a Doctor in 1978 and not at the time the receipt was issued, and that the Respondent got married in 1985, and that the purchase receipts of the Respondent and that of his wife could not have taken priority over that of the Appellant of 4th day of March 1976.
?It is a cardinal rule of civil
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procedure that parties are bound by their pleadings and evidence led on matters not pleaded goes to no issue. See UREDI v. DADA (1988) 2 SC 243, IKEANYI v. A.C.B. LTD (1997) 2 NWLR (Pt. 489) 509, THOMPSON & ANOR v. AROWOLO (2003) 4 S.C. (Pt. II) 108, and AFOLABI & ORS v. WESTERN STEEL WORKS LTD & ORS (2012) LPELR-9340 (SC). A careful perusal of the Appellant’s 21 paragraphs Statement of Defense/Counter-Claim shows quite clearly that the allegations that the Respondent became a doctor in 1978 and got married in 1985 were not pleaded. The Appellant cannot therefore, through his Brief of Argument attempt to raise issue on that allegation which goes to no issue. Ipso facto, parties must limit themselves to issues raised in their pleadings and avoid leading evidence not pleaded or leading evidence, which is at variance with averments in their pleadings. Therefore, Appellant’s contention on this ground will be discountenanced and disregarded as it goes to no issue.
While holding that the Respondent was entitled to a declaration of title to land, the lower Court noted at pages 653 to 655 of the record as follows and I quote:
“The strength of
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the claimant’s case as opposed to defendants case is that claimant’s wife land covered by Exhibit P5 is adjacent to this land covered by Exhibit P4 the land in dispute?
The fact of ownership of the land covered by Exhibit D2, P5 and P6 by Mrs. Mildred Modupe Dinyo was not impeached or discredited.
The defendant in his oral evidence stated that the plot next to his own is owned by one Mr. Ifeanyi and he is living there.
It is trite that where a fact is not pleaded evidence cannot be led on it. It is elementary law that the burden of proof is on the party who alleges the affirmative of the issue. Section 137 of the Evidence Act.
The defendant did not plead this vital fact to prove his assertion and did not call this Mr. Ifeanyi to testify in support of his case.
I discountenance defendant’s evidence on this unpleaded fact.
The claimant proved his title also by production of documents of title. He tendered CTC of a certificate of occupancy Exhibit P4 and documents of Ratification by Lagos State Government of his prior holding.
It is settled that a certificate of occupancy issued under the Land Use Act
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1978 is not a conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is at best only a prima facie evidence of such right, interest or title and may in appropriate cases be effectively challenged and rendered invalid null and void. Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562.
Where it is shown by evidence that another person had a better right to the grant, the Court will have no alternative but to set aside the grant. Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745.
The certificate of occupancy which is based on the previous grant by the Okota family vide Exhibit D1 and ratified by the Lagos State Government vide Exhibit P2 and P3 is valid and conferred title of the land in dispute on the claimant.
The defendant’s claim to the land is premised on Exhibit D8 and D9 and acts of possession. It is also based on Exhibit D12 the survey plan prepared by Surveyor Falade.
As I noted earlier, surveyor Falade did not submit the red copy of this survey to the Surveyor General. There is also no endorsement on it that the land is under Government acquisition. Also consent to survey was not
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obtained. That survey is therefore invalid and cannot be the basis of a claim of title.
The defendant even though long in possession is a trespasser. Long possession cannot found a claim of declaration of title to land.
A defendant can only maintain a claim of trespass and perpetual injunction against persons who are not the true owners of the land. If he sues someone who has a better title than himself, he cannot succeed. Mogaji v. Odofin (1978) 4 SC 91.
On the preponderance of evidence, when the evidence adduced by the claimant is put side by side that of the defendant, the evidence of the claimant tilt the imaginary scale in his favor. He is therefore entitled to judgment?
Where two persons claim to be in possession on the same portion of land, it is settled that the law ascribes possession to one with the better title. Amakor v. Obiefura (1974) 3 SC 67.
Finally, claimant’s purchase receipt from the Oloka family is earlier in time and takes priority over the defendant’s receipt. Auta v. Ibe (2003) 1 NWLR (Pt. 837) 247.
I hold that the claimant established his title to the land he claims.”
While
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the conclusion of the learned trial judge remains unimpeachable on the whole, I must however caution that the fifth way of proving title to land enunciated in IDUNDUN’S case as to 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 was not established in this case. Contrary to the finding of the trial Court on this point, what is required here is for the claimant to show that he or she is in possession of connected or adjacent land to the one in dispute. In the instant case, it is obvious that there was no evidence on record showing that the Respondent is in possession of the adjacent land, rather the evidence led merely shows that the adjacent land belongs to the Respondent’s wife and not the Respondent. Therefore, I am of the firm view that the evidence led by the Respondent in this regard ought to have been disregarded by the trial Court, since there was no pleading on this issue as per the Respondent’s Statement of Claim upon which the evidence was led.
Notwithstanding the foregoing, it is beyond argument
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that civil matters are decided on the balance of probabilities, put differently on the preponderance of evidence. The principle requires that the totality of the evidence of both sides be taken into account and appraised in determining each side’s quantum. An imaginary scale is then used to determine which side’s evidence is heavier and according preponderates. The party whose evidence is heavier succeeds in the matter. In other words, civil matters or claims are proved on the balance of probabilities and the preponderance of evidence not on proof beyond reasonable doubt. See: ISHOLA v. U.B.N. LTD (2005) 6 NWLR (Pt. 922) 422 at 440, OHOCHUKU v. A.G. OF RIVERS STATE & ORS (2012) LPELR-2849 (SC) 35, and UWAH & ANOR v. AKPABIO & ANOR (2014) LPELR-22311 (SC) 19. It is evident from the earlier reproduced Judgment of the lower Court that, the Court considered the separate claims of both parties with respect to the parcel of land in contention and upon due consideration of the evidence of the parties in proof of their claims and found in favor of the Claimant/Respondent against the Defendant/Appellant because the Defendant failed to prove better title in
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the matter. The learned trial judge explained at Para 3, Page 653, and Para 2, Page 654 in Vol. II of the Record of appeal said as follows and I quote:
“The claimant proved his title also by production of documents of title. He tendered CTC of a certificate of occupancy Exhibit P4 and documents of Ratification by Lagos State Government of his prior holding.
?On a preponderance of evidence, when the evidence adduced by the claimant is put side by side that of the Defendant, the evidence of the claimant tilt the imaginary scale in his favor entitled to judgment.”
It is my view that the learned trial Judge was right in reaching the conclusion that the Respondent is entitled to the grant of declaration of title to the disputed land. This issue is resolved in favor of the Respondent against the Appellant.
On the facts and the law, the appeal is unmeritorious and is hereby dismissed. The decision of OBADINA J, delivered on 6th December 2012 is hereby affirmed.
Cost of N50,000 is awarded in favor of the Respondent.
Other Citations: (2016)LCN/8756(CA)
