AZEEZ OWOADE v. MR. ADAMA ASUBIOJO & ANOR
(2013)LCN/6338(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2013
CA/I/240/07
JUSTICES
MONICA B. DONGBAN – MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL KALIO Justice of The Court of Appeal of Nigeria
Between
AZEEZ OWOADE,
(Substituted for Ahaji Sulaiman Owoade by order of Court dated 4th October, 2010) Appellant(s)
AND
1. MR. ADAMA ASUBIOJO
2. MR. LEKAN AJIBADE IDOWU Respondent(s)
RATIO
WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO A LAND IN DISPUTE
The ways by which a claimant could prove title were enumerated as:
(1) By traditional evidence;
(2) By production of documents of title;
(3) By proving acts of ownership (such as selling, leasing, renting out or farming on all or parts of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the interference that the person is the owner of the land.
(4) By proving acts of long possession and enjoyment of the land.
(5) By proof of connected and adjacent land in circumstances rendering it possible or probable that the owner of the adjacent or connected land would in addition be the owner of the land in dispute, see the case of BALOGUN V. AKANJI (2005) 11 M.J.S.C. page 175 Ratio 1 on pages 177-178. PER UWA, J.C.A.
WHETHER OR NOT A SURVEY PLAN IS NECESSARY IN EVERY LAND DISPUTE
The law is trite that where the land in dispute is not identifiable by one of the parties or where the identity is in dispute, then a survey plan is necessary. As rightly argued by the learned Counsel to the Appellant, the test is: whether a surveyor, taking record of the proceedings in the case could produce a plan showing accurately the land in dispute It is trite law that a survey plan is not a necessity in every dispute. The acid test was laid down in ARC. KWADZO v. ROBERT KWASI ADJEI (1944) 10 W.A.C.A. 274, that is:
“The acid test is whether a surveyor, taking the record of proceedings can produce a plan showing accurately the land to which title has been given.”
The above decision was adopted and approved by His Lordship Idigbe, JSC in ARABA V. ASANLU (1980) 5-7 SC 78 when he held that:
“The standard of proof necessary to grant a declaration of title to land as regard certainty of land is universal and applies equally to the superior courts and the finding of the courts must pass the test stated by W.A.C.A. in the case of ARC. KWADZO V. ROBERT KWASI ADJEI (1944) 10 WACA 274 that is that a surveyor armed with the record and going on the land be able to produce an accurate plan to such land.”
In the present case where in my humble opinion the identity of the land is not in dispute as to the extent and location and is known to both parties, in such a case as this, a survey plan is neither necessary nor mandatory. See, CHIEF Y. ABIODUN V. CHIEF D. FASANYA (1974) 11 S.C. 61; (1974) 1 ALL NLR 254; ALHAJI ETIKO V. AROYEWUN (1959) SCNLR 308, (1959) 4 F.S.C. 129, ATOLAGBE V. SHORUN (1985) 1 NWLR (pt. 2) PAGE 360 S.C. all these authorities were adopted and followed by this Court in CHIEF TITUS OJO (The Lojofi of Ilesha) v. CHIEF BODE PHILIPS (The Ogbani of Ilesha) (1993) 5 NWLR (pt. 296) PAGE 751 PAGE 771, where His Lordship Salami, J.C.A. (as he then was) similarly held thus:
“Where the land is known by the name of the parties the identity of such parcel of land is ascertained with certainty without more.”
I am in agreement with the learned Counsel to the Appellant that the learned trial judge in his judgment was in error to have held that the Appellant failed to sufficiently describe the land in dispute for the mere fact that a survey plan was not placed before the Court to show the exact location of the land in dispute.
It is trite law that the plan of the land in dispute is not necessary if the identity of the land is not in controversy and is known to the parties: see, CHIEF. Y. ABIODUN V. CHIEF D. FASANYA (1974) 1 ALL NLR (PT. II) 254 at 267-268, His Lordship Aniagolu, JSC emphasised that:
“It is not always that a plan is necessary in a land case or that the absence of a plan is fatal to the plaintiff’s case – see ALHAJI ETIKO V. AROYEWUN (1959) 4 F.S.C. 129; (1959) SCNLR 350 where there was ample other evidence identifying the land claimed with what the respondent bought.”In AJIDE ARABA V. OGUNBIYI ASANLU (1980) 5-7 SC 78 at 89 the Supreme Court stated thus:
“It may be pointed out that although a licensed surveyor’s plan is the best, if available, yet the absence of it need not be fatal to the claim if proper description of the land is available in the record.” PER UWA, J.C.A.
WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE COURT TO EVALUATE THE EVIDENCE OF WITNESSES BEFORE IT
The pleadings and evidence before the trial court did not support the findings of the trial court. It is the primary function of a trial court which saw and heard the witnesses to assess the credibility of those witnesses to believe or disbelieve them, see, CHINWENDU V. MBAMALI (1980) 3-4 SC 31 at 75: ENANG V. EDU (1981) 11-12 SC 25 at 38; EBBA v. OGUDO (1984) 1 SC NLR 372. The Apex Court has in a number of judicial authorities laid down the principles governing a review of the facts by an appellate court. The factors the appellate court would consider in examining the findings by the trial court have been given as follows;
(a) Whether there was evidence to support the findings and/or the decision of the trial court;
(b) Whether the trial court has made a correct assessment of the evidence before it;
(c) Whether the trial court has wrongly accepted or rejected any evidence tendered at the trial;
(d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case.
See ANYOKE V. ADI (1986) 3 NWLR (PT. 31) 731 at 742; MOGAJI V. ODOFIN (1978) 4 SC 91. In other words, the appellate court would not interfere with the findings of a trial court unless it is obvious that that court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it. See, FASHANU V. ADEKOYA (1974) 1 ALL NLR 35 and WOLUCHEM v. S. GUMI (1981) 5 SC 319. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of A. A. Aderemi, J. sitting at the Oyo State High Court, Ibadan Judicial Division, delivered on 15th day of December, 2006.
In the court below, the plaintiff’s (now Appellant’s) claim as per his Further Amended Statement of Claim dated 8th May, 2006, were as follows:
(a) “Perpetual injunction restraining the Defendants, their agents, privies or any other person claiming through them from committing acts of trespass on the plaintiff’s land situate, lying and being at Jogbin Olojuoro Road, Ibadan covered by certificate of occupancy with Numbers LUD8455B, LUD7167B; and LUD8547B.
(b) N10, 000.00 as general damages.
(c) Declaration that the plaintiff is entitled to Statutory Right of Occupancy in respect of the piece or parcel of land situate, lying and being at Jogbin village, Olojuoro Road, Ibadan covered by Certificates of Occupancy with Numbers LUD8455B, LUD7167 and LUD8547.”
The Appellant called two witnesses and tendered Exhibits A, B, B1 and B2 in proof of his claim while the Respondents called five witnesses and tendered Exhibits C, D, E, E1, F and F1 against the Appellant’s claim. In proof of his case the Appellant relied on production of documents, that is, Purchase Agreement and Certificate of Occupancy with Numbers LUD8455B, LUD7167B and LUD8547B, pages 90-93; 108 and 110-111 of the records of Appeal.
On their part, the Respondents also in defence of the case relied on production of documents, that is, land sale Agreements, Survey Plan and Certificate of Occupancy. The Appellants also relied on acts of ownership i.e. selling and building of houses, shops and building foundations on the land see pages 112-114 and 123-126 of the printed records.
At the close of the case, the trial court dismissed the plaintiff’s case. The Plaintiff dissatisfied with the decision appealed to this court in which four issues were raised for the determination of this appeal. They are:
1. “Whether the learned trial judge was right to have dismissed the plaintiff/Appellant Claims because there was no survey plan placed before the court.
2. Whether the learned trial judge was right to have dismissed the Plaintiff/Appellant claims because he failed to lead evidence on the root of title of Pa B. A. Lawal.
3. Whether the Plaintiff/Appellant is entitled to judgment based on the evidence before the learned trial judge.”
On their part the Respondents raised two issues for the determination of the appeal. They are:
(i) “Whether the learned trial judge rightly dismissed the Plaintiff’s/Appellant’s case.
(ii) Whether the Defendants/Respondents proved better title and were the rightful owners of the 3 1/2 (Three and half acres) of land in dispute in this case.
In arguing the Appeal, the learned Counsel to the Appellant G. A. Sunmonu Esq. adopted and relied on his amended brief of argument dated and filed on 11/10/10 pursuant to the order of court of 4/10/10 substituting the name of the Appellant. We were urged to allow the appeal and set aside the judgment of the lower court.
In his submissions it was argued that the learned trial judge erred when he held that the plaintiff did not adduce credible evidence to describe the land in dispute. It was the contention of the learned Counsel that the learned trial judge did not make adequate use of the evidence and the pleadings of the parties before arriving at his conclusion thereby occasioning a miscarriage of justice. It was submitted that the test is, whether a Surveyor, taking the record of the proceedings in the case can produce a plan showing accurately the land on which the dispute arose, see, KWADZO V. ADJEI (1944) 10 WACA 274 and ARCHIBONG V. ITA (2004) 2 SCM 73 at 97. It was argued that the identity of the land would be an issue if in their statement of defence the defendants make it an issue by disputing either the area or size covered or the location of the land as described in the statement of claim; see, ADENLE v. OLUDE (2002) 13 SCM 1 at 10. It was submitted that the size and the identity of the land in this case are not in dispute, paragraphs 8 and 13 of the further amended statement of claim, pages 103-104 of the records were highlighted.
Paragraphs 2, 3, 7 and 14 of the defendants’ statement of defence, pages 119-121 of the records were also highlighted as well as the evidence of the PW1 and PW2 to the effect that the boundaries were clearly stated, pages 92-93 of the records. It was argued that the 1st defendant (Respondent) the only defendant that gave evidence also agreed as to the size and location of the land in dispute. It was the submission of the learned Counsel that the trial judge did not make adequate use of the pleadings of the parties and the pieces of evidence before deciding that the land in dispute was not sufficiently described.
We were urged to set aside the finding of the trial judge and hold that the size and boundaries of the land in dispute are ascertainable. We were urged to resolve issue one in favour of the Appellant.
On the Appellant’s second issue, it was submitted that the trial judge erred when he held that failure of the plaintiff/Appellant to lead evidence on the root of title of Pa B. A. Lawal his vendor is fatal to his case thereby dismissing his claims. It was submitted that the PW1 (Alhaji Lasisi Liasu Lawal) the younger brother to his vendor, Pa B. A. Lawal testified as to how he bought the land from his vendor, the Appellant also as PW2 testified as to how he bought the land from Pa Lawal. The Respondents were said to have testified that Pa B. A. Lawal owned the land in dispute as well as other land in the area. It was argued that there was no dispute as to the title of Pa B. A. Lawal therefore there was no need for the Appellant to lead evidence on the root of title of Pa B. A. Lawal, see, ADEWUYI V. ODUKWE (2005) 8 SCM 12 at 25-26 and OBAWOLE V. COKER (1994) 6 SCNJ 20 at 33. We were urged to set aside the judgment of the lower court and grant the claims of the Appellant as plaintiff based on this issue.
In his issue three, the Appellant contended that he ought to succeed in his claims for declaration of title, trespass and injunction, the Appellant having traced his root of title to Pa B. A. Lawal, pages 103-104 of the printed records, paragraph 2 of the further amended statement of claim. It was argued that he obtained a certificate of statutory right of occupancy on the 3 1/2 acres and also in 1982 took out an action for trespass against two people. The Appellant had pleaded that he bought the land in 1976 and signed the agreement in 1977. While the PW2 tendered the agreement he entered into with his vendor Pa B. A. Lawal as Exhibit A, page 110 of the records. It was also submitted that from the pleadings of the Respondents, pages 119-121, in paragraph 2 it was pleaded that the 2nd defendant bought the land 3 1/2 acres, now in dispute located at Olojuoro Road, Odinjo Jogbin village Ibadan from Alhaji B. A, Lawal for the sum of N6,000.00 (Six thousand Naira only) on 12th September, 1984.
It was submitted that the DW1 at pages 112-114 testified that his father bought the land in dispute from the 2nd Respondent, the DW4 also claimed to have bought part of the land in dispute from the 2nd Respondent in 1978, page 124 line 40 of the records. Similarly, the DW5 testified that he bought the land from the 2nd Respondent in 1977, page 125, lines 28-29 of the records, all of which contradicts paragraph 2 of the Amended Statement of Defence where their vendor pleaded that he bought the land in 1984.
The DW1 it was also argued testified that he and his father used to excavate sand from the land in dispute which learned Counsel argued was trespass, page 114 lines 9 and 10 of the records.
It was contended by the learned Counsel that the findings and conclusions arrived at by the trial court were not borne out of the evidence before the court. We were urged in this circumstance to set aside the findings of the trial court. See, ATANDA V. AJANI (1989) 3 NWLR (PT. 111) 511 and ANYAOKE. v. ADI (1986) 3 NWLR (PT. 31) 731. We were urged to allow the appeal and set aside the judgment of the lower court dismissing the Appellant’s claims and enter judgment in his favour as per his further amended statement of claim.
In response, the learned Counsel to the Respondent Bolarinwa Lawal Esq. adopted and relied on his amended brief of argument dated 10/11/10 filed the same day, in submitting that the trial court was right in dismissing the Appellant’s case in the lower court. It was the contention of the learned Counsel that the Appellant as plaintiff did not prove his case in accordance with the requirement of the law before the trial judge. The ways by which a claimant could prove title were enumerated as:
(1) By traditional evidence;
(2) By production of documents of title;
(3) By proving acts of ownership (such as selling, leasing, renting out or farming on all or parts of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the interference that the person is the owner of the land.
(4) By proving acts of long possession and enjoyment of the land.
(5) By proof of connected and adjacent land in circumstances rendering it possible or probable that the owner of the adjacent or connected land would in addition be the owner of the land in dispute, see the case of BALOGUN V. AKANJI (2005) 11 M.J.S.C. page 175 Ratio 1 on pages 177-178.
It was argued that the Appellant chose to prove his case by production of documents of title, the documents produced were Exhibits A (the Conveyance on the land), Exhibits B, B1 and B2 (Certificate of Occupancy with Numbers LU8455B; LLD7167B and LUD8547B).
Exhibits B, B1 and B2 were, it was argued, secondary evidence of public documents in which proper foundation ought to have been laid to the effect that they emanated from proper custody. It was submitted that the trial court was right to have held that Exhibits B, B1 and B2 were wrongly admitted as evidence and properly discountenanced same in deciding the Appellant’s case.
It was submitted that Exhibits B, B1 and B2 having been discountenanced the Appellant could have proved his title by traditional history from the facts before the court but failed to do so by not pleading and leading evidence in proof of same, that is on how the land devolved on him.
It was the contention of the learned Counsel to the Respondents that the Appellant failed to prove any radical title and cannot therefore rely on any act of possession. See, DABO v. ABDULLAHI (2005) 5 MJSC 57 at 82 Paragraphs F-G. Further, that the plaintiff ought to have established root of title before any consequential act can qualify as acts of ownership, see, ORUNENGIMO v. EGEBE (2007) 11 MJSC 135 at 154 Paragraphs D-E.
It was argued that the fact that the Respondents admitted the size, location and boundaries of the land as put forward by the Appellant cannot entitle the Appellant to judgment. On the other hand, the learned Counsel submitted that the size and identity of the land is not in dispute. We were urged to hold that the Appellant as plaintiff did not prove ownership of the land in dispute.
On their second issue, the learned Counsel to the Respondents submitted that they proved a better title and were the rightful owners of the 3 1/2 acres of the land in dispute. In defence of the Appellant’s claim the Respondents relied on production of documents and acts of ownership such as selling, long possession and enjoyment of the land. Exhibits C, D, E, E1, F and F2 were relied upon, also the evidence of their supposed boundary men DW2 and DW3 who were also pleaded by the Appellants but who testified on behalf of the Respondents. It was further submitted that the Appellant failed to establish that Exhibit ‘C’ the land Agreement which he said he witnessed is in respect of a different portion not part of or the land in dispute. Reliance was also placed on Exhibit ‘D’, the judgment in Charge No. MI/402C/2001 in which the Appellant was convicted for malicious damage of property on the land in dispute even though the decision has been appealed against by the Appellant. It was argued that the root of title pleaded by the Respondents is purchase of the land, which was proved by the evidence of DW1, DW4 and DW5 and uncontroverted. It was submitted that the evidence of the DW2 and DW3, the boundary men was not disputed. We were urged to hold that the Respondents established purchase of the land and acts of ownership numerous and positive to warrant the inference that they are the owners of the land in dispute.
It was argued that even though the Respondents did not counter claim before the lower court that from the facts and circumstances of this case the Respondents proved a better title to the 3 1/2 acres of land in dispute at Jogbin Area, Ibadan and that they are the rightful owners. We were urged to so hold since judgment would be for the defence where a plaintiff fails to discharge the onus placed on him as in the present case.
It was argued that where the defendant is found to be in possession of a disputed land, the onus is discharged, the plaintiff cannot defeat the defendant. It was concluded that the Respondents have proved better right to possession of the land in dispute. We were urged to affirm the decision of the trial court and dismiss the Appeal and award title of the 3 1/2 acres of the land in dispute at Jogdin Area, Olojuoro Road, Ibadan to the Respondents.
From the issues formulated by the parties, I find the issues formulated by the Appellant more appropriate for the determination of this appeal. In paragraph 8 of the Plaintiff’s Further Amended Statement of Claim, pages 103 – 104 of the printed records, it was averred as follows in paragraphs 8, 12 and 13:
8. “The plaintiff further states that the land in dispute is about 3 1/2 acres,
12. The land in dispute is bounded on the first side by Akano Family land, second side by Elegbe family land, 3rd side by Pa Lawal Family land 4 side by Olojuoro Road.
13. Whereof the Plaintiff’s claims against the Defendants are:-
(i) Perpetual injunction restraining the Defendants, their agents, privies or any other person claiming through them from committing ads of trespass on the plaintiff’s land situate, lying and being at Jogbin Olujuoro road, Ibadan, covered by certificate of occupancy with numbers LUD 8455B, LUD 7167B and LUD 8547B.
(ii)…
(iii) Declaration that the plaintiff is entitled to statutory right of occupancy in respect of the piece or parcel of land situate, lying and being at Jogbin village, Olojuoro Road, Ibadan covered by certificates of occupancy with No. LUD 8455B, LUD 7167 and LUD 8547 respectively.”
In paragraph 8 above, the Appellant as plaintiff pleaded the size of the land in dispute, in paragraph 12 he adequately described the location of the land in dispute and gave the description and details of the boundaries and boundary neighbours, in the relief sought in paragraph 13 he gave the location, area and details of the certificate of occupancy.
In support of the above averments the Appellant as plaintiff who testified as the PW2, at page 93 of the printed records testified as follows:
“The land is 3 1/2 acres. It is at Aba Jogbin Olojuoro, Ibadan.
…………………
There is no house on the land but the 2nd defendant has erected a kiosk on my land. I know the boundary to my land, the land facing Olojuoro road. The adjacent land on the right belongs to a co-operative society. On the left is Aiyejingbin.”
(Underlining mine for emphasis.)
The PW1 (Alhaji Lasisi Liasu Lawal) a younger brother to the Appellant’s vendor testified thus:
“I know the Plaintiff. He bought land from my brother Pa Lawal.
…………….
The land in dispute is situated at Jogbin Olojuoro Road.
I know the size of land in dispute. The land in dispute is 3 1/2 hectares. I know the 2nd defendant. He is a surveyor. He didn’t bought (sic) the land from my brother.
Apart from the land in dispute we had more than 10 hectares of land in Jogbin.
On Olojuoro Road 1st boundary turn right (sic) boundary men is Akano (sic) 2nd boundary (sig) 3rd boundary is co operative (sic) 4th boundary is Arijiki (sic).”
(Underlining mine for emphasis.)
On the part of the Respondents as defendants who did not counter claim, in their Amended Statement of Defence, pages 119 – 121 of the printed records, in paragraphs 2, 3 and 14 the defendants made it clear in their averments that the land in dispute is 3 ‘bd acres of land, located at Olojuoro road, Odinjo Jogbin village Ibadan. No doubt, both parties in this suit know the size of the land in dispute and are agreed on that. They both also agree it is at Jogbin village, Olojuoro Road, Ibadan, the size, area and or location are therefore not disputed. To back their pleadings up the 1st Respondent as defendant who testified before the trial court at pages 113-114 of the printed records, testified as follows:
“I know the land in dispute very well…..
The land is on Ajibade Layout Plots 1 and 13 i.e. 2 plots which comprises of 3 1/2 acres.”
(Underlined mine for emphasis.)
These pieces of evidence tally with those of the Appellant and his pleadings before the trial court.”
The learned trial judge in his judgment at pages 152-153 of the printed records in respect of size, boundaries and certainty of the land in dispute held as follows:
“Equally of note is that the plaintiff ought to adduce credible evidence describing and identifying the land in dispute. It is trite law that where the evidence as to the boundary of a piece of land in respect of which declaration of title is claimed is inconclusive, scanty or of little or no weight, the declaration would be refused by the court for lack of certainty and identity of the land in dispute. A Claimant for declaration of title to land must therefore prove the exact location of the piece of land and the precise area to which his claim relates. See ONWUASI v. OGBEIDE (1997) 1 ALL NLR (Pt. 1) Pg. 70. The area or identity of a land in dispute may be proved by either of two ways namely:
a. By such oral description of the land that any surveyor acting on such description can produce a plan; or
b. By filing an accurate plan showing all the features of the land and depicting very clearly its boundaries. See OKE v. OKE (1982) 12 Supreme Court at 233; ANOTE V. OWODUNNI……………..
A thorough examination of these evidence shows that it has not sufficiently described the land in dispute. There is no survey plan placed before the court which would realty show the exact location of the said land. I therefore hold that the plaintiff has failed to prove with certainty the exact location of the land in dispute and with this I hold that the plaintiff has failed to prove leg 3 of his claim.”
With respect to the learned trial judge, the trial judge erred in the above holding in that the Appellant was clear as to the description of the land in dispute, the area and the size. He also clearly stated the boundaries which were ascertainable from his description. The Appellant’s description and identification of the land from his pleadings and evidence adduced in support cannot rightly be said to be scanty. On the other hand, the defendants did not dispute the size of the land in dispute, the parties gave the area as 3 1/2 acres of land, the location was similarly described by the parties therefore the identity and location was not in doubt and I so hold.
On non-production of a survey plan of the land in dispute, with respect, I also disagree with the opinion of the learned trial judge that the Appellant as plaintiff failed to produce a survey plan of the exact location of the land in dispute and therefore failed to prove leg three of his claim. The law is trite that where the land in dispute is not identifiable by one of the parties or where the identity is in dispute, then a survey plan is necessary. As rightly argued by the learned Counsel to the Appellant, the test is: whether a surveyor, taking record of the proceedings in the case could produce a plan showing accurately the land in dispute It is trite law that a survey plan is not a necessity in every dispute. The acid test was laid down in ARC. KWADZO v. ROBERT KWASI ADJEI (1944) 10 W.A.C.A. 274, that is:
“The acid test is whether a surveyor, taking the record of proceedings can produce a plan showing accurately the land to which title has been given.”
The above decision was adopted and approved by His Lordship Idigbe, JSC in ARABA V. ASANLU (1980) 5-7 SC 78 when he held that:
“The standard of proof necessary to grant a declaration of title to land as regard certainty of land is universal and applies equally to the superior courts and the finding of the courts must pass the test stated by W.A.C.A. in the case of ARC. KWADZO V. ROBERT KWASI ADJEI (1944) 10 WACA 274 that is that a surveyor armed with the record and going on the land be able to produce an accurate plan to such land.”
In the present case where in my humble opinion the identity of the land is not in dispute as to the extent and location and is known to both parties, in such a case as this, a survey plan is neither necessary nor mandatory. See, CHIEF Y. ABIODUN V. CHIEF D. FASANYA (1974) 11 S.C. 61; (1974) 1 ALL NLR 254; ALHAJI ETIKO V. AROYEWUN (1959) SCNLR 308, (1959) 4 F.S.C. 129, ATOLAGBE V. SHORUN (1985) 1 NWLR (pt. 2) PAGE 360 S.C. all these authorities were adopted and followed by this Court in CHIEF TITUS OJO (The Lojofi of Ilesha) v. CHIEF BODE PHILIPS (The Ogbani of Ilesha) (1993) 5 NWLR (pt. 296) PAGE 751 PAGE 771, where His Lordship Salami, J.C.A. (as he then was) similarly held thus:
“Where the land is known by the name of the parties the identity of such parcel of land is ascertained with certainty without more.”
I am in agreement with the learned Counsel to the Appellant that the learned trial judge in his judgment was in error to have held that the Appellant failed to sufficiently describe the land in dispute for the mere fact that a survey plan was not placed before the Court to show the exact location of the land in dispute.
It is trite law that the plan of the land in dispute is not necessary if the identity of the land is not in controversy and is known to the parties: see, CHIEF. Y. ABIODUN V. CHIEF D. FASANYA (1974) 1 ALL NLR (PT. II) 254 at 267-268, His Lordship Aniagolu, JSC emphasised that:
“It is not always that a plan is necessary in a land case or that the absence of a plan is fatal to the plaintiff’s case – see ALHAJI ETIKO V. AROYEWUN (1959) 4 F.S.C. 129; (1959) SCNLR 350 where there was ample other evidence identifying the land claimed with what the respondent bought.”
In AJIDE ARABA V. OGUNBIYI ASANLU (1980) 5-7 SC 78 at 89 the Supreme Court stated thus:
“It may be pointed out that although a licensed surveyor’s plan is the best, if available, yet the absence of it need not be fatal to the claim if proper description of the land is available in the record.”
In the present case, as I said earlier in this judgment the identity of the land is well known to the parties. The extent is 3 1/2 acres and is located at Olojuoro Road, Odinjo Jogbin village, Ibadan, the boundary neighbours were also stated and where they share common boundary with the land in dispute. Further, at page 3 of the brief of the Respondents, the learned Counsel on their behalf admitted that the size and identity of the land is not in dispute, paragraph 3.110 submitted thus:
“It is important to note that the size and identity of the land is not even in dispute.”
The above says it all and so be it. The Appellant’s first issue is resolved in his favour.
On the Appellant’s second issue, as to whether the trial court was right to have dismissed the Appellant’s claims because he failed to lead evidence on the root of title. In the Further Amended Statement of Claim of the Appellant at page 103, paragraphs 2 and 11 it was averred as follows:
(2) “The plaintiff states that he purchased the above land covered by certified (sic) of Occupancy from Late Pa Lawal.
(11) The Plaintiff at hearing will relying (sic) on land agreement and receipt executed for him by his vendor and will also relying (sic) on all the vital documents, in respect of the said land, these will include survey plans and various letters written by the plaintiffs Counsel against the 1st Defendant to stop his act of trespassing on his land at hearing.”
The PW1 (Alhaji Lasisi Liasu Lawal) the younger brother of the vendor, Pa B. A. Lawal testified as to how the Appellant bought the land from his vendor. The witness testified as follows:
“I know Late Pa. Lawal he was my senior brother, I know the plaintiff. He bought land from my brother Pa. Lawal. An agreement was Prepared but the 2 of them put their signature (sic).”
While on the Respondents’ part, in their Amended Statement of Defence at page 119 paragraph 2 they pleaded thus:
(2) “The second defendant avers that he bought the subject matter in this matter the 3 1/2 acres land located at Olojuoro road, Odinjo Jogbin village Ibadan from Alhaji B. A. Lawal for the sum of N6,000.00 (Six Thousand Naira only) on 12th September 1984. (The defendants shall rely on the documents on the sale transaction on trial.)”
In the evidence in support of the Respondents’ pleadings, the DW3 (Asimiyu Ogundeji) at page 124 of the printed records, paragraph 3 testified thus:
“I know Alhaji B. A. Lawal. Baba B. A. Lawal bought all the land in the area. He sold to all the people before he died. My junior brother built a house on a plot of land in the area. After B. A. Lawal died I heard that there is a case on the land.”
The DW3 also owned land in the area of the land in dispute and a boundary neighbour who also bought his land from B. A. Lawal the Appellant’s vendor. On the part of the court, the learned trial judge at page 152 of the records held as follows:
“The evidence of the plaintiff before me now is that Pa Lawal sold the land in dispute to him. He has however not given evidence on the root of title of Pa Lawal. In his pleadings, all he averred to was that Pa Lawal sold the land to him, and PW1 gave evidence to this effect. But no evidence was led as to how the land devolved on Pa Lawal.”
From the pleadings and evidence of the parties both traced their title to Pa Lawal, the parties are agreed on this without any dispute as to through whom each claims his root of title. In the present circumstances it is clear that Pa Lawal owned the land in dispute as well as other portions of land in the area. The issue therefore left for the learned trial judge to have decided in this regard is which of the parties acquired better title from Pa Lawal in respect of the land in dispute.
The title of Pa Lawal is not in dispute and was never in doubt and was not part of the case before the trial court, For this reason, the Appellant as plaintiff needed not to have led evidence on or as to the root of title of Pa Lawal as rightly argued by the learned Counsel to the Appellant and I so hold.
In my humble but considered view, with respect, the learned trial judge erred when he held that the Appellant failed to lead evidence as to the root of title of Pa Lawal his vendor, and held same was fatal to the Appellant’s case as plaintiff for which reason the claims were dismissed. The Appellant’s second issue is therefore resolved in his favour.
The Appellant’s third issue is whether the Appellant was entitled to judgment based on the evidence before the trial court. While resolving the Appellant’s second issue, I did hold that the Appellant traced his title to Pa B. A. Lawal, for which he obtained a certificate of statutory right of occupancy on the 3 1/2 acres of land. See, paragraph 2 of the further amended statement of claim, pages 103-104 of the records earlier reproduced in this judgment. The plaintiff as PW2 testified that when he purchased the land from his undisputed vendor they both signed an Agreement, Exhibit ‘A’, page 92 of the printed records. Exhibit ‘A’ was entered into as therein contained on 7th March 1977. The PW2 at page 110 of the records testified as follows:
“I bought the acres of land from B. A. Lawal in 1976 and the agreement was signed in 1977.
Witness identified the Deed of Agreement Exhibit ‘4’ (it should be ‘A’).
(Underlining mine for emphasis)
But, the Respondents in paragraph 2 of their amended statement of defence averred as follows:
“The second defendant avers that he bought the subject matter in this matter the 3 1/2 acres land located at Olojuoro road, Odinjo Jogbin village Ibadan from Alhaji B. A. Lawal for the sum of N6,000.00 (Six Thousand Naira only) on 12th September 1984 (The defendants shall rely on the documents on the sale transaction on trial).”
(Underlining mine for emphasis.)
In the evidence of the DW1 in support of the above averment at pages 112-114 of the records, the witness gave evidence that his father bought plots 1 and 13 from Chief Lekan Ajibade the 2nd Respondent to which the Appellant was a witness and tendered Exhibit ‘C’ the Sale Agreement. As rightly observed by the learned Counsel to the Appellant, the witness did not give evidence as to the date his father bought the land in dispute from the 2nd Respondent. Similarly, the DW4 at page 124 of the records testified that he also bought part of the land in dispute from the 2nd Respondent, his evidence is as follows:
“It is through Alhaji S. Owoade that I got to know the 2nd Defendant from whom I bought my land. The land (sic) dispute is at Jogbin Olojuoro Road, Ire Akari Oluyole Local Government, Ibadan. I bought my land in 1978.
(Underlined mine for emphasis.)
Another witness called by the Respondents is the DW5 Pastor Okeniyi Olaide, at pages 125-6 of the records testified that he bought his land from the 2nd Respondent in 1977. His testimony went thus:
“I know the plaintiff in this case. I know him as disturbing the peace of land in our area and has trespassing (sic) on the land. My land is Plot 17 and 18 Lekan Ajibade Idowu, Layout Jogbin village Off Olojuoro Road, Ibadan. I know late Ajani Asubiojo, Ajani Asubiojo is the owner of Plots No. 1 & 13 at Jogbin village Olojuoro Road. Lekan Ajibade Idowu is the 2nd defendant whom I bought my land in 1977 4th April, and given the Lands Sale Agreement signed by us.”
(Underlining mine for emphasis.)
The DW5 tendered Exhibits ‘F’ – Sale Agreement and ‘F1’ Certificate of Statutory Right of Occupancy.
From the pleadings and evidence adduced before the trial court it is glaring that the Appellant bought the land in dispute earlier than the 2nd Respondent who is the vendor to the father of the 1st Respondent, the DW1, DW4 and DW5. It is therefore clear from the various dates of purchase pleaded and adduced in evidence that the Appellant’s purchase was first in time. In the case of DANTSOHO V. MOHAMMED (2003) 6 NWLR (PT. 817) 457; (2003) 2 SC 42, His Lordship Katsina-Alu, JSC (as he then was) at page 457 held thus:
“Where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of title in respect of the piece of land in question by the first grant would have nothing left to convey to a subsequent grantee under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him.”
No doubt, Pa B. A. Lawal is a common vendor to both parties to which each has relied on their agreements Exhibit ‘A’ belonging to the Appellant and Exhibits ‘C’ agreement with 1st Respondent and ‘F’ agreement with DW5 (between the 2nd Respondent and those he sold to). Exhibit ‘A’ predated Exhibits ‘C’ and ‘F’, as well as Exhibit ‘F1’ a Certificate of Occupancy issued to DW5 one of those the 2nd Respondent sold to, earlier highlighted in this judgment. As it is, 1st Respondent, the father of the DW1, DW4 and DW5 bought nothing from the 2nd respondent, who had nothing to sell,
On the other hand, the Respondents have not challenged the purchase of the land in dispute from their common vendor Pa. B. A, Lawal, all that he did was to plead and lead evidence to the effect that he also bought the land in dispute from Pa B. A. Lawal from which he sold part of to others. See, also TEWOGBADE v. MRS. OBADINA (1994) 4 NWLR (PT. 388) 326, (1994) 4 SCNJ 79. Similarly, in the case of THE REGISTERED TRUSTEE OF ALL CHRISTIAN WORLD MISSIONARY OUTREACH INTERNATIONAL V. ALADEJOBI (2011) LPELR – 5023 CA His Lordship Ngwuta, JCA (as he then was) at Page 16, paragraphs A-B held thus:
“The operative principle is Nemo dat quod non habet. No one gives what he does not possess or does not belong to him as held by the Supreme Court in ANYADUBA V. NIGERIAN RENOWNED TRADING CO. LTD. (1992) 5 NWLR (PT. 243) 535 SC.”
In sum, no one can convey or sell what does not belong to him. As at the date of the purported purchases by the witnesses, their vendor the 2nd Respondent had nothing to sell. Worse still, the 2nd Respondent pleaded that he bought the land in dispute for the sum of N6, 000.00 (Six Thousand Naira) on 12th September, 1984, see paragraph 2 of the amended statement of defence earlier reproduced in this judgment. The question is: If the 2nd Respondent bought the land in dispute in 1984, how would he have sold part of the same land to the 1st Respondent, DW1 (who did not disclose the date part of the land in dispute was sold to his father) pages 112 – 114 of the records, DW4 who said he bought in 1978, page 124 of the records, and DW5 who bought in 1977, page 125 of the records? It is not feasible. The dates of purchase given by the supposed purchasers from the 2nd Respondent of part of the land in dispute obviously are contradictory to the date the second Respondent pleaded he bought the land in dispute. From the dates, the sales were impossible and not acceptable by this Court as proof of the 2nd Respondent having a better title and I so hold. Exhibits C, D (judgment of the Magistrate court), E and E1 land agreement between the 2nd Respondent and the DW4, F and F1 are not proof of title to the land in dispute of the Respondents and conferred nothing. The evidence of the DW2 and DW3, the supposed boundary men to the Respondents are of no use and are hereby discountenanced as far as the title of the Respondents is concerned.
The Respondents did not counter claim, and the learned Counsel to the Respondents acknowledged this fact in paragraph 3.208 and 3.209, page 5 of his brief of argument. It was therefore not the duty of the Appellants to show that Exhibit ‘C’ is in respect of another land, but, rather the Respondents would have shown that Exhibit ‘C’ covered the land in dispute, the Appellant rightly concentrated on proof of title of the land in dispute.
The Respondents did not show in any way that they had better title to the land in dispute.
Further, the DW1 (Adama Asubiojo) the 1st Respondent in his evidence at the trial court at pages 112 and 114 testified as follows:
“My father bought Plots 1 and 13…
My father bought land from Chief Lekan Ajibade…..
When my father was alive we were living on the land. There is a house built on the land and there is a shop on it as well. I am no longer living there because the plaintiff brought thugs to us and they drove us away from the land. After being driven from the land the plaintiff took us to the Police Station and this case instituted…
The land is on Ajibade Layout Plots 1 and 13 i.e. 2 plots which comprises of 3 1/2 acres. Ajibade Idowu sold the land to my father…….. During the life time of my father we used to take land from the land in dispute.”
(Underlining mine for emphasis.)
Having held that the 2nd Respondent had nothing to sell to the DW1’s father, as at the time (as admitted by the DW1 at page 114 of the records) that he and his father were excavating sand from the land in dispute the DW1 (1st Respondent) and his father were trespassers.
I agree with the submissions of the learned Counsel to the Appellant that the Appellant is entitled to a restraint order as well as damages for defacing of the land in dispute.
The pleadings and evidence before the trial court did not support the findings of the trial court. It is the primary function of a trial court which saw and heard the witnesses to assess the credibility of those witnesses to believe or disbelieve them, see, CHINWENDU V. MBAMALI (1980) 3-4 SC 31 at 75: ENANG V. EDU (1981) 11-12 SC 25 at 38; EBBA v. OGUDO (1984) 1 SC NLR 372. The Apex Court has in a number of judicial authorities laid down the principles governing a review of the facts by an appellate court. The factors the appellate court would consider in examining the findings by the trial court have been given as follows;
(a) Whether there was evidence to support the findings and/or the decision of the trial court;
(b) Whether the trial court has made a correct assessment of the evidence before it;
(c) Whether the trial court has wrongly accepted or rejected any evidence tendered at the trial;
(d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case.
See ANYOKE V. ADI (1986) 3 NWLR (PT. 31) 731 at 742; MOGAJI V. ODOFIN (1978) 4 SC 91. In other words, the appellate court would not interfere with the findings of a trial court unless it is obvious that that court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it. See, FASHANU V. ADEKOYA (1974) 1 ALL NLR 35 and WOLUCHEM v. S. GUMI (1981) 5 SC 319.The question that now arises is: whether there has been a violation of any of the principles enumerated above? The learned Counsel to the Appellant had submitted that the trial court did not make adequate use of the pieces of evidence before him thereby arrived at a wrong conclusion and dismissed the Appellant’s claims. The learned trial judge in the present case in my humble view, with respect, did not properly evaluate the evidence of the parties as highlighted earlier in this judgment, most importantly the date of purchase of the land in dispute by the parties who claimed to have bought the land from a common vendor, Pa B, A. Lawal amongst others. The trial court was duty bound to arrive at its decision based on the pleadings and evidence before it, which the trial court in this case failed to do. I am, with respect of the view that the decision of the learned trial judge is not supported by the evidence before him, in the present circumstances. This Court would be and is justified to interfere with the findings and conclusions of the trial court. The Appellant’s third issue is resolved in his favour.
In sum, the appeal is meritorious and same is allowed. I hold that the Appellant as plaintiff established his title to the land in dispute and his claims ought to have been granted, I hereby grant same.
The judgment of the lower court in Suit No. I/546/2000 delivered by A. A. Aderemi, J. on 15/12/06 is hereby set aside. In its place judgment is entered in favour of the Appellant as per his Further Amended Statement of Claim.
I award costs of N50, 000.00 (Fifty thousand Naira) to the Appellant.
MONICA B. DONGBAN – MENSEM, J.C.A.: I agree with the Judgment prepared by my learned brother Chidi Nwaoma Uwa, JCA that this appeal is meritorious.
The Respondents who each claimed the same piece of land as did the Appellant, failed or refrained from filling site plans. They did not also file a counter-claim. Their failure to file site plans to challenge the case of the Appellant as plaintiff places no responsibility nor disability on the Appellant who wins or looses on the strength of his own case. The Respondents cannot therefore be heard to challenge the title of the Appellant on the non-production of the site plan. All the parties are agreed that the land in question is 3 1/2 acres, the area is well known to all the contending parties.
Above all, Pa B. A. Lawal is the common grantor between the contending parties. In the circumstances, time alone is the determining factor i.e. the date of the purchase of the land from the common grantor.
The law supports that party who is first in time to purchase the piece of land. (See Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) 457). By the often cited case of Idundun v. Okumagba (1978) 9-10 SC 227 p.246-250, title to land or ownership can be established by one of five ways among which is by grant or production of document of title. In this appeal, the contending parties rest their claim on a grant from the same person- Pa B. A. Lawal. There is no situation in law without a solution. The law goes further to proffer a solution in the face of a conflicting claim as in this case at hand. Thus, title will repose with that party who establishes a better title. See Idowu & Ors v. The Registered Trustee of Ona Iwa Mimocherubim & Seraphim Church of Nigeria (2012) LPELR 7863 (CA) where it was stated:
“When the issue as to which of two claimants has better right to a piece of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title” see Fasoro v. Beyeku (1988) 2 NWLR (pt. 76) 263; Onyeneyin v. Akinkugbe (2010) 4 NWLR (pt. 1184) 265; Afromire v. Awoyemin (1972) 1 ALL NLR 1 @ 10″
As eminently analised in the lead judgment, particularly at pages 21-26, the Appellant was the first to obtain the grant from pa B. A. Lawal. The Appellant demonstrated by the production of documents, that pa B.A. Lawal granted him on the 07/03/77 3 1/2 acres of land situate, lying and being at Jogbi-Olojuoro Road Ibadan. In other words, his purchase document dated the 7th March 1977 predated all other transactions on the said piece of land. The Appellant thus having proved a better title is entitled to the judgment of the court (See Fasoro v. Beyeku (1988) 2 NWLR (Pt.76) 263; Onyeneyin v. Akinkugbe (2010) 4 NWLR (Pt.1184) 265.)
Ordinarily, the law places the duty of care and caution on the purchaser to beware, not the vendor. The legal maxim is caveat emptor. A vendor will always be tempted to sell even that which he no longer possesses. It is the purchaser who parts with liquid cash who is often at risk as the consequence in law is as stated by the Apex Court in Anyaduba v. Nigerian Renowed Trading Co. Ltd. (1992) 5 NWLR (Pt.243) p.535:-
Nemo dat quod non habet which means no one gives what he does not possess. Katsina-Alu JSC (as he then was) explains the principle of nemo dat guod non habet in the case of Dantsoho v. Mohammed (supra) to mean that a grantor who has successfully divested himself of title in respect of the piece of land earlier sold would have nothing left to convey to another since the said land no longer belongs to him.
For these reasons as more elaborately stated in the lead judgment, I hold that the learned trial Judge was not properly guided by the relevant principles of law and the facts placed before the court. The appeal is allowed.
I adopt the order as to cost made in the lead judgment.
OBIETONBARA DANIEL-KALIO, J.C.A: I have had the privilege of reading in draft, the judgment just delivered by my Lord Chidi Nwaoma Uwa J.C.A. I agree with the reasoning and conclusions reached. The judgment of the lower court is hereby set aside and judgment is hereby entered in favour of the appellant. I agree with the cost awarded in favour of the appellant.
Appearances
G. A. Sunmonu Esq.For Appellant
AND
Bolarinwa Lawal Esq.For Respondent
