GODDY EDOSA & ANOR v. MRS. EKOMWENRHENRHIEN OGIEMWANRE
(2010)LCN/4212(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/B/299/2008
RATIO
DECLARATION OF TITLE OF LAND: ON WHOM RESTS THE ONUS OF PROOF IN AN ACTION FOR A DECLARATION OF TITLE OF LAND
It is now trite law that in an action for a declaration of title of land the onus is on the claimant to prove his entitlement to the declaration sought on the strength of his case and not on the weakness of the defence. See Meka v. Aniafulu (2005) 13 NWLR Part 943 page 668. PER GEORGE OLADEINDE SHOREMI, J.C.A
PROOF OF TITLE TO LAND: WAYS OF PROVING OWNERSHIP OF LAND
It is true as pronounced by the Supreme Court in IDUNDUN v. OKUMAGBA (1976) 9-10 SC and in (2010) Vol. 181 LRCN 193 at 204 P-Z that there are five ways of proving ownership of land they are as follows: (1) By traditional Evidence (2) By production of documents of title true owner. (3) Act of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner. (4) Acts of Having possession and enjoyment of the land. (5) Proof of possession of connected in or adjacent land circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. PER GEORGE OLADEINDE SHOREMI, J.C.A
BURDEN OF PROOF: WHETHER THE PLAINTIFF CAN RELY ON THE WEAKNESS OF THE DEFENCE WHERE HE FAILS TO DISCHARGE THE BURDEN PLACED ON HIM
There is no doubt as the Appellant submitted that onus of proof is always on the Plaintiff to be granted title. There is no doubt also that the Plaintiff must succeed on the strength of his case if this onus is not discharged the weakness of the defence will not help him. See NWADOGBU & ORS v. NNADOZIE & ORS Land Law Appeal cases Vol. 2 323 at 334 Para B-C. PER GEORGE OLADEINDE SHOREMI, J.C.A
EVIDENCE OF TRADITIONAL HISTORY : HOW TO RESOLVE TWO COMPETING EVIDENCE OF TRADITIONAL HISTORY; DUTY OF THE COURT WHERE CAN NOT FIND ANY OF THE TWO HISTORY PROBABLE OR CONCLUSIVE
The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing witnesses is the more probable. See also SANUSI V. AMEAJOGUN (1992) 4 SCNJ 127; OLANREWAJU V. THE GOVERNOR OF OYO STATE 1994 11/12 SCNJ 92 (1994) 9 NWLR Pt 265. In effect it is when the trial Judge can not find any of the two history probable or conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership. See OGBU V. ANI 1994 7-8 SCNJ 363. PER GEORGE OLADEINDE SHOREMI, J.C.A
INTERFERENCE WITH THE FINDINGS OF THE TRIAL COURT: WHEN AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The position of the law is that an appellate court should not interfere with the findings of the trial court whose duty is to evaluate evidence produced before him unless the findings are not supported by the pleadings and or evidence as are produced. See NNADOZIE & ORS Supra. PER GEORGE OLADEINDE SHOREMI, J.C.A
Before Their Lordships
AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMIJustice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
Between
1. GODDY EDOSA
2. UHUNAMURE AGHOAppellant(s)
AND
MRS. EKOMWENRHENRHIEN OGIEMWANRERespondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court Benin City Edo State in suit No. B/319/2003 delivered on 10th April 2008.
The Respondent, Plaintiff in the lower court claimed as follows “Plaintiff claims from the Defendants jointly and severally a declaration.
1) That she is entitled to s Statutory Right of Occupancy in respect of that piece or parcel of land measuring more than 50 feet by 100 feet including two rooms of the main house known as No. 48, Dawson Rood, Benin City being part of the property she received from her father Omwenke Agho as gift intervivos and later formed part of the inheritance from her father, Omwenke Agho (deceased) as at 1947 or thereabout.
2) N8,000,000.00 (Eight Million Naira) damages for trespass in that on or about the 17th day of April, 2003, the second defendant without the consent of the plaintiff purportedly sold and or leased the plaintiff’s land to the 1st defendant who pulled down the two rooms and also fenced round the empty land property of the plaintiff lying and situate at No.48, Dawson Road.
3) Perpetual injunction to restrain the defendants or their agents from developing the two rooms apartment and empty land property of the plaintiff,
4) In the alternative N25,000,000.00 (Twenty-five Million Naira) compensation for the two rooms apartment and measuring more than 50 feet by 100 feet lying at 48, Dawson Road, Benin City belonging to the plaintiff. Show on the survey plan pleaded.
Pleadings were exchanged the Appellant defended the case by a joint 2nd amended joint statement of defence. Witnesses were called and the trial Judge in his judgment delivered on 10/4/08 concluded as follows:
“On the whole, I hold that the Plaintiff’s claim for declaration of her entitlement to a, statutory right of occupancy damages for trespass and injunction succeed and I make the following orders jointly and severally against the Defendants:-
1. I declare that the Plaintiff is the person entitled to a statutory right of occupancy in respect of that piece or parcel of land with an area of 474 sq metres situate at No.48 Dawson Road, Benin City and verged red in litigation survey plan No. ISO/ED/D38/2005 or 30/8/2005 admitted as Exhibit P2 in this proceedings.
2. The sum of N200,000.00 damages for trespass.
3. A perpetual injunction restraining the Defendants their agents from further act of trespass to the land.
In view of the success of the main claim, the alternative claim for N25,000,000.00 compensation for the property no longer calls for consideration”.
The Appellant being dissatisfied with this judgment filed a notice of appeal with ten (10) grounds of appeal. The grounds of appeal are set out without Particulars hereunder:
“1. The decision is against the weight of evidence’
2. The learned trial Judge erred in law when he held thus “Although Erhabor who was the Okaegbe at the Burial of Onwenke agho died about five months ago according to the Plaintiff and did not testify in the case, and Akpitanyi is also dead. It is my view that their death should not diminish the weight attachable to evidence of other Person especially members of the family who knew what happened, although their names were not set out in the Pleading.”
(c) The carpenter on the land who allegedly paid rend to the Plaintiff was not called’
4. The learned Trial Judge erred in law when he held that the acts of the Defendants constitute an interference with the Plaintiffs Possession.
5. The learned trial judge erred in law when he held that the Plaintiff has proved her case and is entitled to the relief sought.
6. The Learned trial Judge erred in law when he held that the land in dispute was given by Pa Agho to the Plaintiff during his lifetime.
7. The Learned Trial Judge erred in law when he perpetually restrained the defendants.
8. The Learned trial Judge erred in law when he held that the plaintiff was entitled to a declaration of statutory Right of occupancy.
g. The Learned trial Judge erred in law when he held that “I award N200,000 as general damages for trespass”.
10. The Learned trial Judge erred in law when he delivered judgment against a dead Party.
In line with the Rules of this court Briefs were filed and exchanged.
When the appeal came up for hearing on 17/5/10 Chief Okoh learned counsel for the Appellants adopted and relied on his briefs dated 30/9/09 filed on 2/10/09 as his argument in favour of the appeal and urged this court to allow the appeal and set the judgment of the lower court aside.
Mr. Omo-Ikalebe on behalf of the Respondent adopted and relied on his brief dated 20/11/09 filed on 24/11/09 as his argument in the appeal and urged the court to dismiss the appeal.
The Appellant in his brief distilled two issues from the (Grounds 1-9) Ground 10 of the grounds of appeal having been abandoned is of no moment and it is struck out. The two issues distilled from the remaining 9 grounds are as follows:
Issue 1 – Having regard to the Pleadings and evidence on record, is the Respondent entitled to grant of statutory right of occupancy (Grounds 1, 2, 3,4,5,6 and 8).
Issue 2 – whether the trial court was right in granting the Respondent claim for trespass and injunction (Grounds 7 and 9).
On the other hand the Respondent distilled two issues namely-
(a) Whether the Plaintiff/respondent story was properly resolved by the trial court namely as to the sharing of property by their father, intervivors before his death.
(b) Whether the learned Judge awarded appropriate damage in the circumstance.
The two issues to me are of no moment, they are not shown to have arisen from the grounds of appeal filed and what is more there is no cross appeal. The issues formulated by the Respondent are hereby discountenanced and the Respondent’s brief of argument will be applied in line with issues formulated by the Appellants.
On Issue 1 the Appellant argued that the accepted principle of law in land case, the Plaintiff must succeed on the strength of his case. The onus lie on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title by him and not on the weakness of the defendant’s case save where the defence support the Plaintiffs claim.
He referred to the following cases CLAY INDUSTRTES (NIG) LTD V. AINA (1997) 8 NWLR Pt 516 208 at 226; KODILINYE V. ODU (1935) 2 WACA 336; WOLUCHEM V. GUDI (1931) 5 SC 291. He also cited AJIBOYE v ISHOLA (2006) 13 NWLR (Part 998) 628 at 652 Paras D-F to show how ownership or title to land may be proved.
He also cited the locus classicus on this issue i.e. IDUNDUN V. OKUMAGBA(1976) 9-10 SC 227;NKADO V OBIANO (1997) 5 NWLR (503) 31. He submitted that the Respondent had not adduced sufficient evidence to entitle her to judgment in this case.
After reviewing the evidence as produced by the Respondent in the lower court, he relied on the case of ORUNENGIMO vs. EGEDE (2007) 15 NWLR (Part 1058) 630 At 650 on validity of sale of land under Customary Law. He also relied on the case of YUSUF V. ADEGOKE (2007) 11 NWLR (Pt 1045) 332 at 374 on the point that parties must be consistent in presenting their cases in court. He argued that the learned trial Judge relied on evidence of the Plaintiffs witnesses, which were hearsay evidence. He reviewed the evidence of witnesses and submitted that there was contradiction in the evidence of the witnesses of the Respondent.
He relied on DAGAYA v. STATE (2006) 7 NWLR (pt 980) 637 at 664; ITAUMA V. AKPE-IME (2000) 12 NWLR (pt 680) 156 and other cases. He then submitted that the issue be resolved in favour of the Appellant.
In reply the Respondent submitted thus I quote –
In his lucid judgment the learned trial Judge said that and I quote “an examination of the pleadings filed shows that the parties joint issues on the ownership of part of the property known as No.48, Dawson Road, Benin city which the parties agreed was originally owed by Pa Omwenke Agho – father of both the Plaintiff and the 2nd Defendant. While it is the Plaintiffs case that the part of the property in dispute is given to her by Pa Omwenke Agho, her father when he shared the property two years before his death but that the 2nd Defendant has soled the land to 1st Defendant who destroyed the house.
The 2nd Defendant denied any sharing in the lifetime of Pa Omwenke Agho, and claimed to own the entire 48, Dawson Road, Benin city including the part in dispute) as his share of his father’s properties which was done by the Okaegbe after the burial ceremonies of his father”.
The Plaintiff/Respondent offered witnesses that testified and PW7 was the Plaintiff/Respondent herself. The learned trial Judge reviewed the evidence of PW1 (page 33-34) Record of Proceedings (R/P), PW2 (page 34-35) Record of proceedings (MP), PW3 (pages 35-36) in the Record of Proceedings (R/P), PW4 (pages 37-38) in the Record of Proceedings (R/P), PW5 (pages 38-39) in the Record of Proceedings (R/P), PW 6 (pages 40-41) in the Record of Proceedings (MP), PW7 (pages 42-45) in the Record of Proceedings (R/P). The learned Judge examined DW1, (pages 46-45) in the Record of Proceedings, DW2, (pages 49-50) in the Record of Proceedings (R/P), DW 3, (pages 51-52) in the Record of Proceedings (R/P), DW 4, (pages 53-54) in the Record of Proceedings (R/P). The learned trial Judge continued, “In sharp conflict, with the case presented by the Plaintiff is that of the Defendants…”
The learned Judge also listened to the addresses of Plaintiff/Respondent’s counsel, urging the court to uphold the claim while the Defendants/Appellant counsel urges the court to dismiss the claim”
The trial Judge was clearly alive to his duty. He ruled and decided in favour of the Plaintiff/Respondent.
He supported his submission with the following cases
(1) TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PART 17) PAGE 974. 3 (LRCN)
(2) AKIBU VS. ODUTAN (1991) 2 NWLR at PAGE 14
(3) AJOMALE VS. YAUDAT (1991) 3 LRCN PAGE 941.
Before I decide on this issue as proffered by the Appellant let me quote part of the judgment of the lower court that is relevant to this appeal.
“It is now trite law that in an action for a declaration of title of land the onus is on the claimant to prove his entitlement to the declaration sought on the strength of his case and not on the weakness of the defence. See Meka v. Aniafulu (2005) 13 NWLR Part 943 page 668. In this case therefore, though the case presented by the 2nd Defendant and indeed the defence is apparently weak as no other member of the family or witness supported his claim, and that of the Plaintiff overwhelming, there is no onus on the Defendant to prove anything. However, the evidence of the PW3 shows that his title to the house at No. 20A and 20B Dawson Lane which he inherited from his father is founded on the same sharing of the properties of Omwenke Agho by him before his death, and that his father, the 1st son of Omwenke Agho, told him so. I believe that what is true of the one must be true of the other. Moreover the unchallenged evidence of the PW6 is that of an eye witness which supports the Plaintiffs claim and the court is obliged to accept and act on same. See Durusaro v. Ayorinde (2005) 8 NWLR Part 927 407 SC. I also watched the PW6 while she gave her evidence, though she spoke through an interpreter, it was clear from the manner of her testimony that she was bewildered by the claim of the 2nd Defendant that the property was not shared before the death of Omwenke Agho. I believe her evidence in its entirely including her testimony to the effect that she lived with her grand mother in the apartment shared to the Plaintiff and only left after her grand mother’s death when she got married. Although Erhabor who was the Okaegbe at the burial of Omwenke Agho died about five months ago according to the plaintiff and did not testify in this case, and Akhitanyi is also dead, it is my view that their deaths should not diminish the weight attachable to evidence of other persons especially members of the family, who knew what happened although their names were not set out in the pleadings.
It was submitted by defence counsel that the failure to tender the documents which the plaintiff claimed her father gave her to evidence the sharing is fatal to her claim. No authority was however relied upon for this submission and I am not aware of any to the effect that sharing of property is ineffective or invalid unless there is a document of sharing and same is produced before the court. Quite apart from the above 2nd Defendant admitted that a Bini man can share his properties at any time. Be that as it may, I am satisfied that in this case the Plaintiff has sufficiently explained the loss of the document to render oral evidence of the sharing admissible. See-Section 97 (1) (c) and (2) (a) of the Evidence Act. I believe the evidence of the Plaintiff which is amply confirmed by the PW3 and PW6. I also believe her unchallenged evidence that it was after the death of Akpitanyi when Omoze and PW6 got married and left the apartment that the 2nd Defendant, at his request, was permitted by Plaintiff to occupy the apartment. I accept the case of the Plaintiff that Omwenke Agho shared his properties two years before his death and that the Parcel A verged red in Plaintiff’s survey plan Exhibit P2 was shared to the Plaintiff while Parcel B was shared to the 2nd Defendant and that the Defendants knew that the Plaintiff owned the property in dispute hence the 1st defendant made an offer of one million naira to the PW2 and to Plaintiff. I find further support for this view in the suggestion of the learned defence counsel Miss N.P. Edogun during the cross examination of the PW2 that the 1st Defendant only offered her the sum of one million naira to enable him retain peaceable possession of the land after purchasing the land from 2nd Defendant. In my view, to ask permission is to admit that no right exists, and I so hold.
The claim of the Plaintiff earlier set out shows that apart from the declaration of title, she claims damages for trespass, compensation and injunction. The evidence of PW1 shows that she operated a car wash on the vacant plot included in the Plaintiffs share of Omwenke Agho’s properties and that there was also a carpenter who had a workshop on the land as Plaintiffs tenants. Although the defence called the DW2 to deny the plaintiffs acts of possession, his evidence was not in respect of No. 48 Dawson Road, Benin city. He said he at once lived at Army Barracks Ikpoba Hill, Benin city and 46 Dawson Road where he claimed he was a rent paying tenant although he had no receipts. I consider his evidence not worthy of credit. I hold that the defendants have not rebutted the presumption of ownership raised by the acts of ownership exercised by the Plaintiff over the land. See: Oyedare v. Joji (2005) 7 NWLR Part 925 page 571 SC. I believe that the Plaintiff was at all times in possession of the property and that the 1st defendant told PW1 the car wash operator, he had bought the land while she was operating here car wash on the land as Plaintiff’s tenant. It is of course, not denied that the 2nd Defendant has sold the land to the 1st Defendant who has demolished the two rooms belonging to the Plaintiff.
The law is that the slightest interference with the land in the peaceable possession of another to trespass for which the Plaintiff is entitled to an award even in the absence of any damage. See:- Echare v. Ezirike (2006) 13 NWLR part 994 at 380 and Niger Cat Ltd v. Dadehin (2006) 13 NWLR part 998 536 at 555.
On the whole, I hold that the plaintiffs claim for declaration of her entitlement to a statutory right of occupancy, damages for trespass and injunction succeed and I make the following orders jointly and severally against the Defendants:-
1. I declare that the plaintiff is the person entitled to a statutory right of occupancy in respect of that piece or parcel of land with an area of 474 sq situate at No. 48 Dawson Road, Benin City and verged red in litigation survey plan No. ISO/ED/D38/2005 of 30/8/2005 admitted as Exhibit P2 in this proceedings.
2. The sum of N200,000.00 damages for trespass.
3. A perpetual injunction restraining the Defendants their agents from further act of trespass to the land.
In view of the success of the main claim, the alternative claim for N25,000,000.00 compensation for the property no longer calls for consideration.
Costs in favour of the plaintiff is fixed at N10,000.00.
It is true as pronounced by the Supreme Court in IDUNDUN v. OKUMAGBA (1976) 9-10 SC and in (2010) Vol. 181 LRCN 193 at 204 P-Z that there are five ways of proving ownership of land they are as follows:
(1) By traditional Evidence
(2) By production of documents of title true owner.
(3) Act of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner.
(4) Acts of Having possession and enjoyment of the land.
(5) Proof of possession of connected in or adjacent land circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
There is no doubt as the Appellant submitted that onus of proof is always on the Plaintiff to be granted title. There is no doubt also that the Plaintiff must succeed on the strength of his case if this onus is not discharged the weakness of the defence will not help him. See NWADOGBU & ORS v. NNADOZIE & ORS Land Law Appeal cases Vol. 2 323 at 334 Para B-C.
It is the submission of the learned counsel to the Appellant that evidence of sharing of the property by the deceased was not proved. He who assert must proof no doubt the argument that the witness gave hearsay evidence can not be true. Member of the family gave evidence for the Respondent. Family history are passed from generation to generation.
The Appellant also submitted that there are contractions in the evidence as produced by the Respondent. The principle in KOJO BONSO (1957) 1 WLR 1223 as enunciated therein is as follows:
“Witness of the utmost veracity may speak honestly but erroneously as to what took place hundred years or more ago where there is a conflict of traditional history one side or other must be mistaken, yet both will be honest in their belief. In such a case demeanor is, little guide to the truth.
The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing witnesses is the more probable. See also SANUSI V. AMEAJOGUN (1992) 4 SCNJ 127; OLANREWAJU V. THE GOVERNOR OF OYO STATE 1994 11/12 SCNJ 92 (1994) 9 NWLR Pt 265.
In effect it is when the trial Judge can not find any of the two history probable or conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership. See OGBU V. ANI 1994 7-8 SCNJ 363.
There is no doubt that the custom of a people is sacrosanct. There is no evidence in this case that it is the custom in Benin that a man can not share his properties to his siblings male or female or members of his distant families in his lifetime at least in this case.
The position of the law is that an appellate court should not interfere with the findings of the trial court whose duty is to evaluate evidence produced before him unless the findings are not supported by the pleadings and or evidence as are produced. See NNADOZIE & ORS Supra.
The trial court had properly evaluated the evidence in this case and hold that his decision can not be faulted under this issue. The findings are reasonably justified and supported by evidence, not perverse and no substantial error apparent in the record.
The 1st issue as proffered by the appellants is therefore resolved against him and in favour of the Respondent. Therefore grounds 1, 2, 3, 4, 5, 6 and 8 of the grounds of appeal failed.
Issue 2 – whether the trial court was right in granting the Respondent’s claim for trespass and injunction (grounds 7 & 9). The Appellants argument in award of damage can not be said to arise from the issue distilled i.e. in relation to the award of damage.
He however argued that the Respondent had never been in possession as she does not live in Benin but with her husband in Ibadan. The appellants are not serious about this submission when it is in evidence that the 2nd Appellant also lived in the room allotted to the Respondent as tenant and had to be given notice to quit. There is also evidence of tenants of the Respondent paying to her. The issue is not seriously canvassed and therefore resolved against the Appellants and in favour of the Respondent.
The appeal fails in its entirety as it is unmeritorious. Judgment of Imoedemhe J. delivered on 10/4/08 in favour of the Respondent is hereby affirmed I award cost of N30,000 against the Appellants and in favour of the Respondent.
AMINA A. AUGIE, J.C.A: I have read before now the lead Judgment just delivered by my learned brother, Shoremi, JCA, and I agree with his reasoning and conclusion.
The term “finding of fact” means a determination of a fact by the court, averred by one party and denied by the other, and founded on evidence in a case – see Black’s Law Dictionary: 6th Ed. see also Fointrades Ltd. v. universal Association co. Ltd. (2002) B NWLR (pt. 770) 699, wherein it was held that any affirmation of fact in a Judgment may loosely be referred to as a finding on that fact, but the term “finding of fact” is more appropriately employed to describe an affirmation of fact made by a Court after considering evidence.
It is also settled that findings by a trial Court are entitled to respect by an Appellate court when it is clear that it has performed its primary duty of evaluating and ascribing probative values to the evidence before it properly – see Admin. Gen. Delta State V. Ogogo (2006) 2 NWLR (pt. 964) 366 & Trade Bank Plc V. Yisi (Nig.) Ltd (2006) 1 NWLR (pt. 960) 101.
In this case, there is no question that the lower Court evaluated the evidence before it properly and made the appropriate findings, and the Appellants have obviously failed to discharge the burden on them to show that the findings are perverse and not supported by the evidence. It is for this and the other reasons in the lead Judgment that I also dismiss the appeal as lacking in merit. I abide by the consequential orders in the lead Judgment including the order as to costs.
CHIOMA EGONDU NWOSU-IHEME, (Ph.D) J.C.A: I read in advance the lead Judgment just delivered by my learned brother GEORGE OLADEINDE SHOREMI JCA. I agree that the appeal lacks merit and ought to be dismissed. It is accordingly dismissed. The Judgment of the lower court delivered on 10/4/08 is hereby affirmed. I also award N30, 000 costs against the Appellants and in favour of the Respondents.
Appearances
Chief Ben Ose Okoh with A.S. OsisFor Appellant
AND
A.G.M. Omo-Ikelebe EsqFor Respondent
