AJIBOYE v. REGD TRUSTEE OF C & S MOVEMENT CHURCH
(2020)LCN/14100(CA)
In The Court Of Appeal
(ILORIN JUDICIAL DIVISION)
On Monday, March 02, 2020
CA/IL/13/2019
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
- GBENGA AJIBOYE APPELANT(S)
And
REGISTERED TRUSTEE OF CHERUBIM & SERAHIM MOVEMENT CHURCH RESPONDENT(S)
RATIO
MEANS OF PROVING TITLE TO LAND
The law is settled, that there are 5 ways or methods of proving title to land: (i) Traditional evidence; (ii) Title document; (iii) Numerous and positive acts of possession to warrant interference of ownership; (iv) Act of long and enjoyment; and (v) proof of adjacent land or contiguous land in circumstances probable warrant inference of ownership of piece of land. See KACHALLA VS. BANKI (2001) FWLR (Pt. 73) 1 @ 14; IDUNDUN VS. OKUMAGBA (1976) 1 NWLR 200, et al. PER SAULAWA, J.C.A.
STATUTES OF LIMITATION ON LAND MATTERS
As aptly postulated by the Court below, a challenge to the competence of an action premised on a statute of limitation of action invariably challenges the jurisdictional competence of the Court itself. See OGBONNA VS. EZEWUZIE (2014) ALL FWLR (Pt. 743) 1910 @ 1934.
Invariably, by virtue of the provision of Section 4 of the Kwara State Limitation Law (Supra), no action shall be permitted to recover any land after the expiration of ten years from the date on which the right of action accrued. It is not at all controversial, that the instant writ of summons was filed exactly on 23/6/2017. See page 2 of the record of appeal. By paragraph 4 of the Amended Statement of Claim thereof, the Appellant has averred that the title document was executed by the Appellant with the said Alhaji Baba Alogbo in 1978. And by paragraphs 13, 14, 15 and 16 of the Amended Statement and paragraphs 13, 14, 15 and 16 of the Appellant’s statement on Oath, it is obvious that both the Appellant and the agent thereof, (Alhaji Idris) were not sure of the position of the land in dispute years before 2007 when the said agent was bedridden as a result of the alleged stroke. Thus, as aptly found by the Court below at page 175 of the record, there is a presumption of prima facie ownership and possession of the land in dispute of the Respondent in Exhibit 7. Thus, she was presumed to have possessed the land in dispute from 13/12/2000, when the certificate of occupancy was issued thereto. Therefore, the Court below was absolutely right in arriving at the ultimate conclusion, to the effect that the claimant’s action which was filed on 23/06/2017 was done more than ten years after the cause of action arose. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is consequent upon the judgment of the Kwara State High Court holden at Ilorin Judicial Division, delivered on December 11, 2018 in suit No. KWS/239/2017. By the judgment in question the Court below, Coram I. A. Yusuf, J; dismissed the Appellant’s case.
BACKGROUND FACTS
It is discernible from the record of appeal, that the genesis of the present appeal is traceable to June 23, 2017. That was the day the Appellant instituted the said suit vide a writ of summons against the Respondent. By the 23 paragraphed statement of claim, filed on 23/02/2018, the Appellant claimed various declaratory and injunctive reliefs against the Respondent:
a. A DECLARATION that the Claimant is the bonafide owner of that piece of land measuring 100ft by 100ft which is lying, being and situate at Agunbelewo area, off Atiku road, Adewole/Olorunshogo axis, Ilorin, kwara State.
b. A DECLARATION that the entry of the Defendant, her agents, privies and/or servants on the Claimant’s piece of land described in paragraph one (1) above constitute act of trespass in
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law.
c. A DECLARATION that any title documents, Right of Occupancy or any purported documents issued in favour of the Defendant or any of her agents, privies or servants in respect of that piece of land by any office or authority is void and of on effect whatsoever.
d. AN ORDER of this Honourable Court compelling and/or mandating the Defendant, her agents, privies or servants, to remove their offending and provocating structure or building from the Claimant’s piece of land.
e. AN ORDER of perpetual injunction restraining the Defendant, her agents, privies, servants or anybody claiming title through her from erecting any building or structures and/or committing any act or further act of trespass on the land or from dealing with the land manner adverse to the Claimant’s claim.
f. Cost of filing and prosecuting this suit.
Contrariwise, by the statement of defence (earlier filed on 25/07/2017), the Respondent has debunked the Appellant’s claim, and thereby urged upon the Court below:
“[To] dismiss the suit in its entirety as same is vexatious and lack in merit with cost of defending the suit.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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See pages 16 – 17 of the Record.
The case proceeded to trial, at the close of pleadings by the respective parties. At the close of trial, the Court below delivered the vexed judgment to the conclusive effect:
I agree with the learned counsel to the defendant that this is not case where the claimant can rely on the weakness of the defence because the claimant has not proved his case. I am of the considered view that a party relying on the weakness of the defence must first establish a prima facie case before doing so. There is no weakness in the defence of the defendant in this case that supports the case of the claimant because the parties have not traced their titles to the same person…
On the whole, I found no merit in the case of the claimant against the defendant, it is hereby dismissed.
The Appellant’s notice of appeal, filed on 17/12/2018, is predicated upon three grounds (pages 184 – 187 of the record of appeal). On December 3, 2019 when this appeal came up for hearing the learned counsel adopted their respective briefs of argument, thus resulting in reserving judgment.
The Appellant’s brief
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settled by S. B. Bamidele Esq. on 20/09/2019, spans a total of 17 pages. Specifically, at page 2 of the brief, a couple of issues have been couched:
1. Whether from the pleadings filed and evidence adduced by parties, the trial Court was right by dismissing the Appellant’s suit (Grounds 2, 3 & 4).
2. Whether the Appellant’s action is caught up by statute of limitation under Sections 4 & 29(2) of the Kwara State Limitation Law 2006 to warrant dismissal of the Appellant’s suit. (Ground 1).
The issue 1 is extensively argued at pages 2 – 9 of the Appellant’s brief. In a nutshell, it is submitted that in view of the facts and evidence adduced before it, the judgment of the Court below was against the weight of evidence. Allegedly, the Court did not properly evaluate the evidence before it dismissed the Appellant’s case. See ANDREW VENN VS. ACCESS BANK PLC (2015) ALL FWLR (Pt. 785) 1465 @ 1794 D – F.
It was argued, that the Court below made a grave error by holding that the Appellant did not establish ownership of the land in dispute. See page 181 of the Record. Further agued, that the
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Appellant’s case at the trial was that he bought the land in dispute from one Alhaji Baba Alogbo of Ita Elefun Area, Ilorin in 1978 (Exhibits A & B) who derived his title from Abdulkadir Olokobo Family – the customary traditional owner of the land in dispute.
According to the Appellant’s learned counsel, having not derived title from Abdulkadir’s family directly, the Appellant is not bound to prove or trace the root of title of Alhaji Abdulkadir Olokoba’s family in his pleadings or call any member of the family in question as a witness before successfully establishing his title over the subject matter. See MCHAEL AIYEOLA VS. RAMOTA YEKINI PEDRO (2014) ALL FWLR (Pt. 744) 17 @ 38; OMOTOSHO VS. SAKA (2015) ALL FWLR (Pt. 782) 1686 @ 1702 B – C; OMOTAYO VS. COOPERATIVE SUPPLY ASSOCIATION (2010) ALL FWLR (Pt. 537) 608 @ 630 A – B.
Further argued, that by pleading Exhibits A & B as evidence of purchase, same still pass good title to the Appellant. See GBADAMOSI VS. AKINLOYE (2015) ALL FWLR (Pt. 783) 1918 @ 1944 C – D.
It was posited, that the Court below failed to evaluate the evidence gathered
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during cross examination by the Appellant’s counsel which aid the Appellant’s case during trial. See pages 153, 154 and 155 of the record; ISMAILA VS. MATHEW (2017) ALL FWLR (Pt. 891) 824 @ 842 E – F.
The Court is urged to resolve issue 1 in favour of the Appellant.
The issue 2 is argued at pages 11 – 15 of the Appellant’s brief. In the main, it is submitted that the Court below misconceived the law (on evaluation) when it held that the cause of action of the Appellant accrued on the date the certificate of occupancy (Exhibit H) was purportedly issued to the Respondent. SeeINEC VS. ONOWAKPORO (2017) ALL FWLR (Pt. 960) 474 @ 491 B – E; AG ADAMAWA VS. AG FEDERATION (2015) ALL FWLR (Pt. 797) 597 @ 628; UBN PLC VS. EZIKPE (Pt. 915) 1286 @ 1303.
It was argued, that the Appellant became aware of the Respondent’s trespass on the subject matter in February 2017, while the instant suit was filed on 23rd day of June 2017. That the Respondent did not challenge the Appellant’s averment that he traveled outside. See CBN VS. OKOJIE (2015) ALL FWLR (Pt. 807) 78 @ 501.
The Court is urged to equally
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resolve the issue 2 in favour of the Appellant.
On the whole, the Court is urged upon to allow the appeal set aside the vexed judgment of the Court below and grant all the reliefs in favour of the Appellant.
Contrariwise, the Respondent’s brief settled by M. A. Mohammed Yusuf Esq. on November 5, 2019, spans a total of 16 pages. The two Appellant’s issues have been adopted by the Respondent. The issue 1 is canvassed at pages 2 – 11 of the Respondent’s brief. In the main, it is submitted that in the instant case, the Appellant failed woefully to prove his case by any of the 5 ways as laid down by the Courts to entitle him to the relief sought at the Court below. See ALAHJI KACHALLA VS. ALHAJI BANKI (2001) FWLR (PT. 73) 1 @ 14; IDUNDUN VS. OKUMAGBA (1976) 1 NMLR 200; AKUNJO OKONJI VS. GEORGE NJOKANMA (1999) 12 SC (Pt. 11) 150.
Further argued, that the case of MICHAEL AIYEOLA VS. PEDRO (Supra) cited by the Appellant is not apposite to the case at hand. Whereby the title to the land in dispute was in issue. See the evidence of DW2 at page 77 of the Record.
It is posited, that contrary to the paragraph 3.07 of the
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Appellant’s brief, the Appellant never claimed ownership of the land in dispute by production of document of sale/title. See paragraph 4 of the Amended statement of claim (page 56 of the Record). See OGBIMI VS. NIGER CONSTRUCTION LTD (2006) ALL FWLR (Pt. 317) 390 @ 400 – 401; 412 SC (2006) 4 SC (Pt.1) 110 @ 118 – 119. Et al.
On the whole, the Court is urged to resolve the issue 1 against the Appellant.
The issue 2 is argued at pages 11 – 15 of the Respondent’s brief. In a nutshell, it is submitted that the Appellant’s claim (at page 57 of the record) is inconsistent with the cross examination on page 148 of the record.
It was argued, that the Appellant never specifically responded to paragraph 26 of the Respondent’s consequential statement of defence.
Further argued, that the Appellant failed to adduce reason why he left for America. He never tendered any passport or visa to assert his claim that he left Nigeria. Thus, the Appellant does not have any defence to the defense of statute bar raised by the Respondent. See EBOIGBE VS. NNPC (1994) 5 NWLR (Pt. 347); ODUBEKO VS. FOWLER (1993) 7 NWLR (Pt.
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308) 637; EKEOGU VS. ALIRI (1991) 3 NWLR (Pt. 176) 258.
Conclusively, the Court is urged to dismiss the appeal with cost.
The Appellant’s reply brief was filed on 14/11/19. It spans 6 pages. Paragraphs 2.00 – 2.12 (pages 1 – 4) of the reply brief specifically relate to Respondent’s argument on issue 1. Paragraphs 3.00 – 3.07 (pages 4 – 6) relate to Respondent’s argument on issue 2. Conclusively, the Appellant has urged upon the Court to disregard the jaundiced, tendentious, and unfounded submissions contained in the Respondent’s Brief of argument, and to accordingly allow the appeal in its entirety.
Having critically albeit dispassionately considered the submissions of the learned counsel contained in their respective briefs of argument, I have deemed it expedient to adopt the Appellant’s two issues for resolution of the appeal, anon.
ISSUE NO.1
The first issue raises the question of whether or not from the pleadings filed and evidence adduced by the respective parties the Court below was right in dismissing the Appellant’s suit. The issue is distilled from grounds 2, 3
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and 4 of the Appellant’s notice of appeal.
It is trite that the Appellant’s claim is to the effect that he bought the land in dispute from one Alhaji Baba Alogbo in 1978. Allegedly, he has been in possession thereof ever since.
The law is settled, that there are 5 ways or methods of proving title to land: (i) Traditional evidence; (ii) Title document; (iii) Numerous and positive acts of possession to warrant interference of ownership; (iv) Act of long and enjoyment; and (v) proof of adjacent land or contiguous land in circumstances probable warrant inference of ownership of piece of land. See KACHALLA VS. BANKI (2001) FWLR (Pt. 73) 1 @ 14; IDUNDUN VS. OKUMAGBA (1976) 1 NWLR 200, et al.
It is obvious from the record of appeal before us, that Appellant had tendered Exhibits A and B as evidence of purchase receipts. It was found by the Court below at page 181 lines 1 – 10 thus:
“Exhibit it is the sale agreement between one Alhaji Abdulkadir Olokoba, as the seller and Alhaji Baba Alogbo as the purchaser. It is dated 10th June, 1976. Alhaji Abdulkadir Olokoba was said to be the customary owner of the land in dispute from
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time immemorial in Exhibit A. it is important to note that both Exhibits A and B were not tendered to establish any title, but they tendered as evidence of receipt. There were no facts pleaded and adduced by the claimant on the founding of the land and how Alhaji Abdulkadir Olokoba became the customary/traditional owner of the land from time immemorial. Also, Alhaji Abdulkadir Olokobo or any member of his family was not called as a witness in support of the claim of the claimant.
Against the backdrop of the circumstances surrounding the instant case vis-a-vis the evidence adduced at the trial, I have no hesitation whatsoever in upholding the foregoing findings of the Court below, which said findings are apparently cogent and unassailable.
The Appellant’s claim is duly predicated upon the land in dispute. Thus, the root of title has fundamentally become in issue which must be established by the Appellant upon preponderance of evidence. As aptly found by the Court below, the mere tendering of Exhibits A and B would not avail the Appellant to be declared by the Court below the owner of the land in dispute in the absence of a cogent and
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credible evidence in support of his title vis-a-vis the title of the predecessors on the land in dispute.
Accordingly, I agree with the Court below in its finding at page 182, lines 3 – 9 of the record, to the effect that this is not a case where the Appellant (Claimant) can rely upon the weakness of the defence, as he has woefully failed to prove his case on the preponderance of evidence. See NDUKUBA VS. IZUNDU (2006) ALL FWLR (Pt. 343) 1740 @ 1753 – 1754.
In the circumstance, the first issue ought to be, and same is hereby resolved against the Appellant.
ISSUE NO.2
The second issue raises the question of whether the Appellant’s action was caught up by statute of limitation under Sections 4 and 29(2) of the Kwara State Limitation Law 2006, to warrant the dismissal of the Appellant’s Case. The second issue is distilled from ground 1 of the Notice of Appeal.
At page 175 lines 1 – 5 of the record, the Court below held:
There is presumption of prima facia ownership and possession of the land in dispute in favour of the defendant in Exhibit F, she is presumed to have possessed the land from
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13/1/2000 when the certificate of occupancy was issued. I hold that the claimant’s action which was filed on 23/06/2017 was done more than ten years after the cause of action arouse (sic).
By virtue of the statement of claim thereof, the Appellant has averred inter alia thus:
4. The claimant avers that he is the bonafide (genuine) owner of that piece of land lying being and situate at Agunbelewo area, off Atiku road, Adewole/Olorunshogo axis Ilorin, Kwara State having purchased same in 1978 from one Alhaji Baba Alogbo of Ita-Elefun area, Ilorin Kwara State said parcel of land measures 100ft x 100ft. A copy of the title document executed by the claimant with Alhaji Baba Alogbo in 1978 is hereby pleaded.
Interestingly, the Respondent deemed it expedient not only to deny the claim in toto, but to also challenge the competence of the action on ground of statute of limitation, Viz:
a. The Defendant has been in possession of the land in dispute as the bonafide owner since 1977.
b. The defendant first commenced construction in bricks on the land in dispute 1998 and finished all aspects of construction in 2001.
c. The Claimant
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Cause of action if any would have arisen since 1998 or 2001 (16 years preceding this suit).
d. Section 4 of Kwara State Limitation Law Cap. 30 of 2007 provides that no action shall be brought by any person to recover any expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.
As aptly postulated by the Court below, a challenge to the competence of an action premised on a statute of limitation of action invariably challenges the jurisdictional competence of the Court itself. See OGBONNA VS. EZEWUZIE (2014) ALL FWLR (Pt. 743) 1910 @ 1934.
Invariably, by virtue of the provision of Section 4 of the Kwara State Limitation Law (Supra), no action shall be permitted to recover any land after the expiration of ten years from the date on which the right of action accrued. It is not at all controversial, that the instant writ of summons was filed exactly on 23/6/2017. See page 2 of the record of appeal. By paragraph 4 of the Amended Statement of Claim thereof, the Appellant has averred that the title document was executed by the Appellant with the
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said Alhaji Baba Alogbo in 1978. And by paragraphs 13, 14, 15 and 16 of the Amended Statement and paragraphs 13, 14, 15 and 16 of the Appellant’s statement on Oath, it is obvious that both the Appellant and the agent thereof, (Alhaji Idris) were not sure of the position of the land in dispute years before 2007 when the said agent was bedridden as a result of the alleged stroke. Thus, as aptly found by the Court below at page 175 of the record, there is a presumption of prima facie ownership and possession of the land in dispute of the Respondent in Exhibit 7. Thus, she was presumed to have possessed the land in dispute from 13/12/2000, when the certificate of occupancy was issued thereto. Therefore, the Court below was absolutely right in arriving at the ultimate conclusion, to the effect that the claimant’s action which was filed on 23/06/2017 was done more than ten years after the cause of action arose.
In the circumstance, the second issue is hereby resolved against the Appellant.
Hence, having effectively resolved both issues raised by the Appellant against him, the appeal resultantly fails and it is hereby dismissed by me.
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In the circumstance, the judgment of the Kwara State High Court delivered on December 11, 2018 by I. A. Yusuf, J. is hereby affirmed.
There shall be no order in regard to costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree
BALKISU BELLO ALIYU, J.C.A.: I agree
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Appearances:
A. BAMIDELE ESQ. OF ADEKUNLE BAMIDELE & CO. For Appellant(s)
A. MOHAMMED ESQ. For Respondent(s)
