Mrs Bukola Onabule V. Prince Olusanya Sanya (2016)
LawGlobal-Hub Lead Judgment Report
YARGATA BYENCHIT NIMPAR, J.C.A.
This is an appeal against the judgment of the Lagos State High Court presided over by HON. JUSTICE M. O. OBADINA delivered on the 25th day of April, 2007 wherein judgment was entered for the Respondent (Claimant at the Lower Court) and the counter claim dismissed. Dissatisfied with the said judgment the Appellant filed an Amended Notice of Appeal setting out 5 grounds of appeal.
The brief facts to this appeal are that the Respondent as Claimant before the trial Court initiated an action against the Appellant praying the Court for the following reliefs:
a. Declaration that the plaintiff is the owner of all that piece of land lying being and situate at No.28, Matanmi Street, Odi Olodo Mushin on the Mainland City of Lagos measuring approximately 501.270 Square metres and forming part of ALL THAT PIECE OR PARCEL OF LAND Known as Plots 1 ? 5 AIDA MOORE’S ALLOTMENT which is affirmed by Deed of Conveyance registered as No. 35 at page 35 in Volume 950 (colony) of the Deed of Register now kept at the Lagos State registry or alternatively as the person entitled to
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apply for statutory right of occupation.
b. Possession of the land in dispute
c. A claim of N1,000,000.00 (One million Naira) as general damages.
d. Perpetual injunction restraining the defendant, her servants, agents or privies or otherwise from continuing with the said acts of trespass.
The Appellant, as defendant in her statement of defence also counter-claimed as follows:
(i) A declaration that the defendant is entitled to a grant of statutory or alternatively customary right of occupancy to a piece or parcel of land measuring 324.573 square metres situate lying and being at No. 28 Matanmi, Igbobi Odi Olowo Mushin, Lagos State and particularly described, shown and delineated on Plan No. OGEK 591/ 84 dated 10th day of March 1984 drawn by Chief B. Akin Ogunbiyi Licensed Surveyor having an area of 324.573 square metres.
(ii) The sum of N1,000,000.00 (One Million Naira) general damages for trespass committed by the claimant to the said land of the defendant.
(iii) An order of perpetual injunction restraining the claimants, his servants, agents and privies from committing any further acts of trespass to the said land of the
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defendant.
The matter went to trial and the Lower Court at the end granted the reliefs of the Respondent and dismissed the counter claim thus this appeal.
The Appellant’s brief settled by Oluwasanya Odunayo Ayeni is dated 23rd December, 2013 filed on the same date and a reply brief dated and filed on the 27th February, 2014. The Respondent’s brief settled by C. A. Chanbang is dated 10th February, 2014 and filed on the 11th February 2014. It raised a preliminary objection and still responded to the main appeal. It shall be necessary to resolve the preliminary objection incorporated in the Respondent’s brief, seen at pages 9-16 of the Respondent’s brief. The Appellant reacted to it in its Appellant’s Reply brief. It is necessary to consider it before proceeding to the main appeal if it fails or for whatever part is saved.
The objection challenges the competence of the appeal and the grounds are as follows:
“a. The grounds of appeal contained in the Notice of Appeal are grounds of mixed law and fact for which the leave of the Court ought to have been obtained before the filing of the Notice of Appeal.
b. The grounds of appeal questioned the
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exercise of discretion of the learned trial Judge in granting a declaration in favour of the Respondent.
c. The issue of discretion of the Court is based on the evaluation of material facts placed before the Court.
d. The issue of discretion of the Court is one of mixed law and fact and the Appellant requires the leave of the Court to file the Notice of Appeal.
e. Relevant materials particularly the exhibits tendered at the trial were deliberately not copied into the record of appeal prepared by the Appellant which is contrary to the provisions of Order 8 Rule 13 of the Court of Appeal Rules 2011.
f. The Appellant failed and refused to copy the exhibits into the records and have taking no step to ensure that the case file at the Lower Court with the exhibits are transmitted to the Court of Appeal.
g. The record of appeals is not certified as required by the provision of Sections 104 of the Evidence Act 2011 as the appellant did not pay the legal fees for certification and there is no date for the certification.
h. The appellant was granted leave to amend the notice of appeal on the 10th day of December 2012 by the Court of Appeal
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but did not file the amended notice of appeal as none was served on the respondent.
i. The appeal argued on a notice of appeal not filed is incompetent.
The Respondent submitted that once an Appellant’s appeal does not come within the purview of the instances enumerated in Section 241 of the Constitution, the Appellant must obtain leave of Court to appeal. Also submitted that it is not the title that is given to the notice of appeal that makes it a ground of law, referred to EHINLAWO V OKE (2008) 6 – 7 SC (Pt.2) 123, ABUBAKAR V WAZIRI (2008) 6 – 7 SC (Pt.2) 82, NIGERIA NATIONAL SUPPLY COMPANY v. ESTABLISHMENT SIMA OF VADUZ (1990) 7 NWLR (PT 164) 526, OGUNLEYE V MILITARY ADMINISTRATION OF OYO STATE (1996) 9 NWLR (PT 471) 176.
Despite the fact that the Appellant has labeled the 6 grounds of appeal as grounds of law, the Respondent was of the opinion that they are questions of facts or at best mixed law and facts because they border on the exercise of the Court’s discretion. That since no leave was obtained, the grounds should be struck out, referred to OBATOYINBO V OSHATOBA (1996) 5 NWLR (PT.450) 531, FAITH ENGINEERING ENTERPRISES LTD V B.A.S.F.
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NIG LTD (2010) 1 SC (PT 2) 186, TILBURY CONSTRUCTION CO. LTD V. OGUNNIYI (1988) 2 NWLR (PT 74) 64, It was also submitted by the Respondent that in the present Record of Appeal, the exhibits tendered in Court were deliberately left out and that the failure of the Appellant to copy and deliver the exhibits is contrary to Order 8 Rule 13 of the Court of Appeal Rules, 2011 and that the Appellant is obliged to place before the Court all relevant materials before the Appellate Court to consider and determine, referred to the cases of UWECHIE V OBI (1973) 2 SC 1, ODUNSI V. OJORA 1961 NSCC 160, TRANS ATLANTIC SHIPPING AGENCY LTD V. DANTRANS NIG. LTD (1996) 10 NWLR (PT 478) 360, NITEL LTD V IKPI (2007) 8 NWLR (PT.1035) 96. The Respondent went on to say that a Record of Appeal transmitted without the exhibits is an incomplete record and the Court cannot hear the appeal on an incomplete record, cited SHELL PETROLEUM DEVELOPMENT CO LTD V AMADI (2011) 14 NWLR (PT.1266) 157, EKPEMUPOLO V EDREMUDA (2009) 8 NWLR (PT.1142) 166. More so, the Respondent submitted that the Record of Appeal is not dated and that there is no evidence before the Court that the legal fee for the
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certification of the records was ever paid for. Respondent went further to say that Amended Notice of Appeal purportedly filed by the Appellant was never served on the Respondent, thereby urging this Court to dismiss the appeal on the grounds that the Appeal is not predicated on a competent Notice of Appeal.
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In response to the preliminary objection, the Appellant in its reply brief submitted that the appeal is against the final judgment of the Lower Court and that whether it is on ground of law or mixed fact and law, the appeal is as of right by virtue of Section 241(1) (a) of the 1999 Constitution and no leave is required to file the appeal. On the issue of the exhibits not copied into the record of appeal, the Appellant submitted that it is the joint responsibility of both the Appellant and the Respondent to see that relevant exhibits are brought to the Court for the appeal and that when some exhibits had not been transmitted to the Court, the Respondent had the responsibility to transmit same as supplementary record of appeal. The Appellant also submitted that the objection of the Respondent based on non – certification of the Record of Appeal is
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frivolous. Being that the Registry of the Lower Court certified the documents, there is no valid reason for the Respondent to say that the appropriate fee for certification was not paid. The Appellant was also of the opinion that contrary to the assertion of the Respondent, the amended Notice of Appeal was filed and the Appellant utilized the order of the Court granting him leave to amend the Notice of Appeal within the statutory period. The Appellant therefore urged the Court to dismiss the preliminary objection in its entirety.
RESOLUTION
It would be expedient to start resolving the preliminary objection on fundamentality because it touches on the Notice of Appeal. The Respondent contended that the Notice of Appeal for which leave was granted to be amended was not amended within time allowed. Notice of appeal is the initiating process in an appeal and unless the Notice of appeal is competent, then, there cannot be an appeal. See AARON OKARIKA &ORS V ISAIAH SAMUEL & ANOR (2013) LPELR – 19935 (SC) where OGUNBIYI, J.S.C had this to say:
“The nature of a Notice of Appeal being an originating process is well settled and should not be a
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matter of controversy. Being an initiating process therefore it must be certified as competent in order to give it legality and recognition.”
In arguing the appeal, the Appellant relied on the amended Notice filed on the 11/12/13. There is indeed an amended Notice of Appeal in the Court’s file and payment for its filing duly endorsed. The contention that none was filed is untenable. The objection on this point fails.
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Now to the other aspects of objection; the Respondent attacks the grounds of appeal contending that they are grounds of mixed fact and law and for which leave must first be sought from this Court in this case. The right of appeal is constitutionally provided for by Section 241(1) of the 1999 Constitution as amended and it states as follows:
?An Appeal shall lie from decisions of the Federal High Court or a High Court sitting at first instance;
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or
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criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court ?
?.
?.
?.
And then Section 242(1) provides that:
“Subject to the provision of Section 241 of this Constitution, an appeal shall
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from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.?
It is now settled that it is not the manner the grounds of appeal are christened but the substance of the complaint that determines the nature of the grounds of appeal and in doing so the grounds must be read along their particulars to get to a fuller view, see TOTAL INT. LTD V AWOGBORO (1994) 4 NWLR (PT. 337) 147 where the Court held thus:
“It is trite law that in determining whether a ground of appeal is a ground of law or not the test is not its christening or appellation attached thereto; the Court must examine the nature of the complaint and the particulars given in support thereof before arriving at a view?.
However, it is important to note the point made by the Appellant that the decision appealed against is a final judgment of the Court and as such requires no leave. As earlier stated, an appeal shall lie as of right from final decisions of the Federal or High Court sitting at first instance, see Section 241(1) (a) of the 1999 Constitution. This position has been
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upheld in several decisions of the Court. In the case of DANGOGO & ANOR v. BELLO & ANOR (2016) LPELR ? 40240 (CA)
“Under Section 241 (1) of the 1999 Constitution, an appeal shall lie from decisions of the High Court to the Court of Appeal as right (i.e. without leave of Court) in final decision in any civil proceedings before the High Court sitting at first instance. I have checked the judgment and I am convinced the High Court of Justice Kebbi State who delivered the judgment being appealed against sat as a Court of first instance. It therefore means no leave of Court is needed by the applicant to raise and argue grounds of fact or raise and argue grounds of mixed law and fad in Appeal No: CA/S/129/2014.?
Now what is a final decision? In the case of ONYEABUCHI V. INEC, ABUJA & ORS (2002) 4 S.C (PT.II) 27 the Court held thus:
?A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or
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modification by the Tribunal which pronounced it.”
Clearly, the decision of the Lower Court is final because it finally and completely determined the rights of the parties in the case. I am therefore of the view that being an appeal against the final decision of the trial Court who sat at first instance, no leave is required whether the grounds of law are on facts or on mixed law and facts. The grounds of appeal therefore survive on that point.
The Appellant had distilled four (4) issues for determination as follows:
1. From the findings of the learned trial judge has the respondent proved title to the property in dispute under any of the five (5) known recognized ways of proving title to land as enunciated in the case of Idundun vs. Okumagba (1976) 9-10 SC 27 cited and relied upon by the Court in its judgment?
2. Is there evidence of how the erstwhile Respondent, late B. O. Ogunrin became the owner of the property in dispute justifying the declaration of title to land made in his favour by the Lower Court?
3. Can it be rightly said that there was no dispute as to the identity of the land in dispute between the Appellant and the
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Respondent.
4. Are some conclusions reached by the learned Trial Judge not erroneous and misleading thereby rendering the judgment susceptible to setting aside?
The Respondent on his part formulated a sole issue for determination thus:
“From the state of the pleadings and the evidence before the Lower Court, was the Respondent able to establish a better title that the appellant in respect of the property in dispute which is situate at No. 28 Matanmi Street Odi Olowo Mushin Lagos?”
I have reviewed the issues formulated by both sides and the issues put forward by the Appellant are fragmentation of the sole issue distilled by the Respondent and being a claim for title to land, it will be expedient to adopt the sole issue formulated by the Respondent and in the course of resolving same all the aspects presented by the Appellant shall also be considered.
SOLE ISSUE:
“From the state of the pleadings and the evidence before the Lower Court, was the respondent able to establish a better title that the appellant in respect of the property in dispute which is situate at No. 28 Matanmi Street, Odi Olowo Mushin Lagos?”
The Appellant
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submitted that the Respondent, Claimant at the Lower Court did not rely on traditional evidence of ownership and as such there was no proof of traditional ownership of the property in dispute. The Appellant further submitted that the Respondent could not rely on proof by production of document duly authenticated since Exhibit P3, the unregistered Deed of Assignment was not perfected. That there is no evidence on record to show that the Respondent claimed ownership of the land at any time and as an agent of a disclosed principal, he cannot lay claim of ownership. Appellant further submitted that the Claimant cannot rely on exclusive possession of his predecessors in title to sustain his own claim, that the findings of the Court shows that the Respondent did not prove ownership by exclusive possession and that there was no evidence showing that the Respondent owns an adjacent land to render it probable that he would own the land in dispute.
The Appellant was therefore of the opinion that since the Respondent did not prove any of the five (5) recognized ways of establishing title as enunciated in IDUNDUN V OKUMAGBA (1976) NMLR 200, the trial Court
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erred to have held that equitable interest makes the Respondent entitled to a declaration that he is entitled to the statutory right of the land in dispute.
With respect to issue 2, the Appellant submits that the Respondent’s claim of ownership vide Exhibit P3, a receipt in acknowledgment of an alleged payment cannot be relied upon for a grant of declaration of title. Appellant further opines that Exhibit P7, a letter from the predecessor – in – title never acknowledged the Respondent as the owner but as a counsel to the owner and it was therefore erroneous for the Court to have made a declaration of title in favour of the Respondent. On issue 3, the Appellant submitted that while the Appellant referred to the land as “Odi Olowo?, the Respondent referred to the land as ?Odi Olodo”. As such the identity of the land was in dispute and the Court erred in treating the name ?Odi Olodo” as a typographical error, thus correcting same. Also since the size of the land is not the same and the licensed surveyor who drew the composite plan testified that the land in dispute between the parties is not the same, no doubt the identity of the land is in
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dispute and the Court ought to have held so, cited the case of ARABE V ASANLU (1980) 5 – 7 SC 78. The Appellant submitted that the Court erred in placing reliance on the case of OGUNBAMBI v. ABOWABA (1951) 12 WACA 222 and that if the Lower Court had not treated the issue of the location of the land in dispute, a different verdict would have been reached.
In response, the Respondent while restating the position of the law on the five (5) ways of proving title to land as held in the case of IDUNDUN V OKUMAGBA (supra) submitted that where a person pays for land and obtains a receipt, followed by his obtaining possession, equitable interest has been created such that can defeat the title of a subsequent legal purchaser with knowledge of the equitable interest in the land, referred to the case of GOLDMARK NIG LTD V IBAFON CO LTD (2012) 3 SC 72, YARO V. AREWA CONSTRUCTION LTD (2007) 17 NWLR (PT 1063) 333, NSIEGE V MGBEMENA (2007) 4 – 5 SC 1. That by burying beacons on the land, the Respondent has shown acts of possession, referred to MAJEKODUNMI V. ABINA (2002) 1 SC 92. The Respondent therefore disagreed with the holding of the trial judge that the possession
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of the Respondent’s predecessors in title was not possession by the Respondent as a person can continue to be in possession of a land which his predecessors in title have been, referred to AJERO V UGORTI (1997) 7 SCNJ 40, EJEM V OFIA (2000) 7 NWLR (PT.666) 662, BURAIMOH V BAMGBOSE (1989) 6 SC 1, SALAMI v. LAWAL (2008) 14 NWLR (Pt.1108) 546. That he asked his predecessor – in – title to continue to collect the rents on his behalf after the assignment of the land because he had not yet registered his title and that both the Respondent and the predecessor- in-title were in effective possession, cited TANKO V ECHEDU (2010) 18 NWLR (PT.1224) 253. The Respondent therefore was of the opinion that notwithstanding the fact that Exhibit P3, the Deed of Assignment between the Respondent and the Predecessor – in – title was an unregistered instrument, the Respondent has established his root of title and there was enough evidence to grant the declaration of the title sought, referred to the case of SHITTU V FASHEWE (2005) 7 SC (PT.2) 107, DIKE v. OKOLEDO (1999) 10 NWLR (PT.623) 359, THOMAS V HOLDER (1946) 12 WACA 78. He submitted that the documents tendered by the Court
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were never impugned by the Appellant at any point in time to cast doubt as to their authenticity.
Furthermore, the Respondent was of the opinion that the Appellant’s argument that the trial judge placed reliance on Exhibit P7 to grant declaration of title to the Respondent is flawed. The Respondent further submitted that though the parties at the Lower Court gave evidence on different sizes of the land, both were unanimous in the location of the land in dispute. Besides, the Statement of Claim referred to by the Appellant where the address was wrongly spelt has been amended by leave of Court and the Appellant is only being semantic about the use of “Odi Olodo” instead of ?Odi Olowo”. The Respondent submitted that the Appellant in her issue four (4) has not shown the Court how the decision of the trial judge was erroneous or misleading. The finding of the trial judge was supported by evidence and therefore urged the Court to dismiss the appeal.
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In her reply brief, the Appellant submitted that the Respondent’s brief contains arguments not arising from the issues raised by any of the parties and the numerous cases cited did not show how the
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Respondent has proved one of the five ways of establishing title. Further submitted that the arguments of the Respondent showing disapproval with the trial Court’s finding should be discountenanced and that the case of OGUNBAMBI V. ABOWABA (1952) 12 WACA 222 is not applicable to the case at hand.
RESOLUTION:
Let me start on the contention that the Respondent was not the appropriate person to claim for the land because the beneficiaries to the estate of Pa Williams were alive. I say it is not open to the Appellant to question why the beneficiaries to Pa Williams estate would willingly be substituted by the Respondent. The interest in the land was their own and if they surrender it to the Respondent is purely of their own choice and the Appellant cannot cry more than the bereaved. Such a family will be caught by the doctrine of Estoppel, See NDUKWE V IBEZIM & ANOR. (2002) 12 NWLR (PT.780) 139 where the apex Court held:
“It is settled that where a person was content to stand by and see his battle fought by someone else in the same interest instead of applying to be joined as a defendant in the case, he is bound by the result in that case
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and estopped from reopening the issues determined therein.”
With respect to the arguments of the Respondent disagreeing with the decision of the Court when it held that the Respondent did not have exclusive possession of the land and did not prove his title by acts of long possession and enjoyment of the land, the law is trite that where a Respondent agrees with a judgment but is somewhat not comfortable with the conclusions reached therein, then, the Respondent must file a Respondent’s Notice seeking to vary the judgment or to affirm it on other grounds, see EMEKA V. OKADIGBO & ORS (2012) LPELR – 9338(SC). The Respondent did not do this but instead raised his objection to in his arguments as contained in his Respondent’s brief. Consequently, the Respondent’s argument on this issue is hereby discountenanced.
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The main issue is whether the judgment in favour of the Respondent is justified going by the pleadings and evidence before the Court. The claim is one of title to land and the jurisprudence of land law is clearly settled now.
There are 5 methods of proving title to land known to our law, these are settled in the case of IDUNDUN V
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OKUMAGBA (1976) 9 – 10 SC 27 thus:
i. By traditional history
ii. By production of documents of title duly authenticated and executed.
iii. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
iv. By acts of long possession and enjoyment.
v. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land in addition be the owner of the land in dispute.”
It is also trite that a Claimant is not required to prove more than one method to be entitled to a declaration of title, see CHIEF TAIWO ELEMORO & ANOR v. CHIEF FATAI ABIODUN (2014) LPELR 23195 and UGWENZE V ADELEKE (2005) 2 NWLR (PT.1070) 148 at 176 – 177.
Generally, pleadings form the skeleton on which evidence is used to build the body of the case, see the judgment of the apex Court in the case of JOLAYEMI V. ALAOYE (2004) 12 NWLR (PT.887) 322 wherein it held as follows:
“Pleadings are the body and soul of any case in a skeleton form and are built up and solidified by the evidence in support thereof. They
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are never regarded as evidence by itself and if not followed by any supporting evidence they are deemed abandoned.”
See also AJAO V ALAO (1986) 5 NWLR (PT.45) 802 and EBUEKU v AMOLA (1988) 2 NWLR (PT.75) 128.
Also in the same vein, evidence led without finding support in the pleadings goes to no issue.
Another general principle in establishing title to land is identity of the land in question. The settled position is that the burden is primarily on the Claimant to establish the exact identity of land he is claiming, see the case of JIMOH ATANDA v. MEMUDU ILIASU (2012) LPELR – 19662(SC) where the apex Court held thus:
“The general principle of law governing the claim of title to land is trite and as laid down in a plethora of decided authorities. In other words for a plaintiff to succeed in an action for declaration of title to land, the onus of proof lies on him to establish with certainty and precision the identity of the area of land to which he lays his claim. The plaintiff is herewith saddled with the responsibility of proving by evidence and otherwise as well as also describing with such degree of accuracy and aptitude that the identity of
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the area of land in respect of which he seek its title is in fact not in doubt.?
See also the following authorities:EMILY J. BINTA AUTA V CHIEF WILEY IBE (2003) 7 SCNJ 159; JINADU AJAO v BELLO ADIGUN (1993) 3 NWLR (PT.287) 389 and SIMON OJIAKOKO v. OBIANWUCHI EWURU (1995) 12 SCNJ 79.
The identity of the land in dispute becomes an issue only if the defendant in his statement of defence makes it so, see ANYANWU v. UZOWUAKA (2009) 13 NWLR (PT.1159) 445 S.C which held as follows:
“The identity of land in dispute will be in issue, if, and only if the defendant in their statement of defence made it one- that is if 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.”
The Appellant argued the issue of the identity of the land in dispute in its issue III and challenged the finding of the trial Court on this question. The trial Court found that the Appellant did make the identity of the land in issue but without substance because in reality there was no dispute as both sides referred to No. 28 Matanmi Street, Odi
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Olowo Mushin as the property in question. The trial judge found as follows:
“The pleadings of the parties and the evidence made it obvious that the land they are disputing is at No.28 Matanmi Street, Odi Olowo Mushin. It is the land that was in the possession of the deceased defendant and in respect of which statutory notices were issued by the claimant. The difference in the size of the land claimed by both parties does not put the identity of the land in issue?.
Indeed, there is copious evidence that the land mentioned by the Respondent was the same property for which notices to recover possession were issued to the Appellant’s husband (Exhibits 5 and 6) and this was not denied by the Appellant. Both parties referred to the property or land in dispute in unmistakable terms as No. 28 Matanmi Street. It was not shown that there was more than one Matanmi Street that can create confusion as to which one is referred to. There was an earlier assignment to the late Pa Williams which was registered and the Appellant was his tenant. Size of the land cannot affect identity and even when parties give different names to a particular land as long
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as both parties are agreed as to the land in contention, the different names will have no effect on identity. See the decision in the case of BOSINDE AYUYA & ORS V CHIEF NAGHAN YONRIN & ORS (2011) LPELR – 686 (SC) where the apex Court held as follows:
“It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the Plaintiff.?
The law is that where parties are ad idem on the exact land in dispute, the fact that different names are ascribed to or that the area where it is located is called different names is immaterial as long as parties are referring to the same land.
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The trial judge did an excellent evaluation of the evidence given in respect of the issue of identity (see pages 429 – 440 of the record) and I have no reason to disturb the findings because they are not perverse but based on evidence before the
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Court. I also say that identity of the land was not in issue as evidence available resolved it.
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On proof of title to land, the trial Court found in favour of the Respondent based on the evidence evaluated and found to weigh in favour of the Respondent. The evidence is quite clear and straight forward. Proof in civil cases is on the preponderance of evidence which is simply referred to as weight of evidence. Proof is not beyond reasonable doubt. The Appellant added a counter claim to her defence. So she also had a burden to prove her title and as the Respondent asked in his Respondent’s brief, how can the Appellant who alleged to have bought the property in 1977 be paying rents as late as 1980. Besides, the alleged receipt of purchase was issued by the family of Pa Williams when the Pa Williams himself was still alive and had not shared his estate and even if he had shared, then, it would have been the beneficiary who would sell and not the family. Truly, can a family property be created when the owner is still alive? These foundational questions knock the bottom out of the case of the Appellant. The trial Court diligently evaluated both oral and
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documentary evidence before the Court and made unimpeachable findings. The initial claimant was the estate of the vendor claimed by both sides but was later substituted by the Respondent. The root of the Respondent’s equitable title was clearly established by evidence which was highlighted in the judgment of the trial Court. The unregistered Deed of Assignment was admitted as evidence of payment for the property (Exhibit 3). The family of Pa William also acknowledged the equitable title of the Respondent. Relevant notices were issued to the Appellant’s husband as a tenant. The root of his (the Appellant’s husband) equitable interest was not established and even if it was done, resolution would have revolved on which one was first in time and was still the interest of the Respondent. Documentary evidence such as Exhibit P7 rejecting an appeal from the Appellant’s husband on the quit Notice and oral evidence on how the Appellant’s husband begged people to plead with late Pa Williams is before the Court. PW1 also denied any sale to the Appellant’s husband. Exhibit D6 (composite plan) was not relied upon because of its questionable source and failure to tender the
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separate plans that gave rise to the said exhibit. So how Exhibit D6 came about was unknown and the trial Court was right not to place reliance on it.
The Appellant by Exhibit P7 acknowledged his status as a tenant and even though the Appellant denied the signature of her late husband, the Respondent established that the signature on Exhibit P7 is indeed that of the Appellant’s husband thereby satisfying one of the conditions set out in the case of AMADI v. ORISAKWE (2005) 1 SC (PT 1) 35 at 41 as follows:
“The position of the law is that in resolving the issue of due execution of a document where the alleged maker denies his signature, the course or option opened to the Court would be the following: –
i. to receive evidence from the attesting magistrate if there is such an attestation and if it is still possible to call the magistrate;
ii. To hear evidence from a person familiar with the signature of the alleged signatory or who saw him write the signature;
iii. To compare the signature admitted by the alleged signatory to be his own with the one under contention under Section 108 (1) of the Evidence Act?.
See also
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ADENLE V OLUDE (2002) 18 NWLR (PT.799) 413. The trial Court applied the third method and found that the Appellant’s husband actually signed the said Exhibit P7. The finding is not perverse and therefore I cannot disturb it. It actually pinned the Appellant to the position of a tenant and there is no running away from that (see Exhibit P7, P9 and P11). How then can a tenant turn round to be the owner of the property without purchasing same coupled with the fact that the evidence of payment was also discredited by the Respondent at the trial Court.
Exhibit P3 is the agreement transferring interest to the Respondent and this is obviously subject to the relevant consent to assign and the law does not frown against a preliminary agreement that would lead to the document to present for consent of the Governor. That agreement can validly enure an equitable title to whoever is the beneficiary, non registration notwithstanding.
Both parties claimed the late Pa Williams as their vendor and in such situation it is the person with a better title that is declared the owner, see TEWOGBADE V OBADINA (supra). This authority was applied to the facts of the case by
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the trial judge to find for the Respondent. The law is settled that in competing interest the principle is that such interest rank in order of their creation based on the maxim: quil prior est tempore portior est jure which means “he who is earlier in time is stronger in law?. The basis is simply that having given out his interest there is nothing to give to the second party. Also expressed in the latin maxim which says: nemo dat quod non habet as “no one can convey what no longer belongs to him?. This is in essence the principle in the said case of TEWOGBADE V OBADINA (supra) which held thus:
“The law is settled that in competing conveyances which have been duly registered. Each takes effect as against the other from the date of registration so that the one executed earlier losses its priority if it was registered later in point of time?.
The difference between the case cited above and the facts herein is only on the fact that the claimed interest herein was not registered. However, the same principle is found in equity and the Latin expression which says: qui prior est tempore potior est jure literally saying – “He who is before
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in time is the better in right” i.e. priority in time gives preference in law. So the legal proposition in the case cited is not different from the equitable principle and the Court arrived at the finding that the equitable interest of the Respondent was established while the Appellant had none. The trial judge diligently evaluated the evidence from the onset of this judgment, the flaw in the case of the Appellant was established. There is no merit in the contention that the trial judge misapplied a legal principle.
In fact, this case is not strictly the question of competing interests because the Appellant had no interest to compete with that of the Respondent. The Appellant was not given anything. Appellant was a mere tenant.
?
The other issue stoutly put forward is the question on whether the Respondent proved title by any of the 5 recognized methods of proving title? The first claim as amended is instructive, the Respondent claimed as follows:
“a. Declaration that the plaintiff is the owner of all that piece of land lying being and situate at No.28 Matanmi Street, Odi Olodo Mushin on the Mainland City of Lagos measuring approximately
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501.270 square metres and forming part of ALL THAT PIECE OR PARCEL OF LAND known as Plots 1 – 5 AIDA MOORES’S ALLOTMENT which is affirmed by the deed of Conveyance registered as No. 35 at page 35 in Volume 950 (Colony) of the Deed of register now kept at the Lagos State Land Registry or alternatively as the person entitled to apply for Statutory right of occupation (sic).”
The settled methods of proving title relates to a legal title and there is nothing in the Land Use Act or in any case law that says all title in respect of land must be legal titles. There is what is known as equitable title which is yet to mature to a legal title. The plaintiff now Respondent was not barred from seeking to protect his equitable interest in the land which he has paid for and which is yet to be given consent to assign to him. He has traced his equitable interest to the legal title of his vendor. This was admitted by the Appellant. The law recognizes equitable title, see ALHAJA SOBALAJA ELERAN & ORS V DR. ATIKU I. ADERONPE (2008) LPELR – 3711 (CA) where the Court held as follows:
“Only an equitable interest is acquired by a lessee or purchaser under a transaction
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when his title deed have not been perfected after he has paid the required consideration?.
See also THOMAS AWAOGHO & ORS v CHUKWU EZE (1995) 1 SCNJ 157.The law is that equitable interest coupled with possession is allowed in law and can be duly regarded as a legal title, see NSIEGBE V. MGBEMENA. (2007) ALL FWLR (PT.372) 1769 where the apex Court held thus:
“A purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate.?
Was the Respondent in possession? His predecessor in title was in possession. There is such evidence before the trial Court and relevant notices were issued to the Appellant’s husband seeking to recover possession from him by the vendor of the Respondent, Pa Williams. See AJERO V UGORJI (1999) 10 NWLR (PT.621) 1 where the Court held as follows:
“Possession in law means exclusive possession, because if it is not exclusive, the law will not protect it. It must also be remembered that whether or not the act proved is sufficient to establish possession
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is a question to be decided on the merit of each Case. Cultivation of a piece of land, erection of a building or a fence, and demarcation of the land with pegs at its corners have all been held to be evidence of possession (see for example WUTA v. DANQUAH (1961) 3 ALL ER 596 (P.C.) ALATISHE V SANYAOLU (1972) 2 S.C. 97. A person can also be in possession through a third party such as servant, agent or tenant, and possession of a predecessor in title law is deemed to be continued by his successor.? PER KUTIGI J.S.C.
?
The other way to resolve the issue is to see who has a better title and I found earlier in this judgment that the Respondent has a better and stronger case and therefore is entitled to a declaration that will enable him to seek for a legal title in respect of the land. It is clear that the Appellant who has been adjudged a tenant is claiming title through tenancy and it is not possible. Possession alone cannot ground the claim of the Appellant. The question of laches and acquiescence cannot arise without pleadings on the said defences. The trial Court was right to jettison that defence when raised without pleadings. The Appellant can
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therefore be ejected at the instance of one with a better title than he has and in this case the Respondent can eject the Appellant who has no equitable interest in the land. The case of the Appellant is weightless and could not have been sustained.
The interest of the Respondent being one recognized and protected by law and having been proved by credible evidence would be granted by a Court of justice. In equitable title, roots could be traced to any of the 5 methods of proving title and as long as the equitable interest is established, the Court will make such a declaration. The trial Court found that the vendor had valid title documents which were also registered and therefore could transfer same which he did to the Respondent but subject to consent to assign.
On the whole I do not find any basis to disturb the findings of the trial judge who diligently evaluated and resolved all issues before arriving at the final decision, It is not proper for the appellate Court to interfere when the duty has been properly carried out by the trial Court. See IRIRI V ERHURBOBURA (1991) 2 NWLR (PT.173) 252. This appeal lacks merit and is hereby
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dismissed.
The judgment of HON. JUSTICE M. O. ABADINA at the Lagos State High Court delivered on the 25th day of April 2007 is hereby affirmed.
Cost of N50,000.00 in favour of the Respondent.
Other Citations: (2016)LCN/8895(CA)
