EMEKA OKOLI & ORS v. ALHAJI IBRAHIM GADAN GAYA (2014)

EMEKA OKOLI & ORS v. ALHAJI IBRAHIM GADAN GAYA

(2014)LCN/7150(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 29th day of April, 2014

CA/K/161/2010

RATIO

WHETHER A PARTY RELYING ON A PLAN IN CLAIMING OWNERSHIP OF LAND MUST SHOW THAT HIS PLAN CORRESPONDS WITH THE ACCLAIMED LAND

It settled law that where a party claims ownership of a parcel of land and relies on a plan, he must show that his plan corresponds with the land to which he lays claim. It is usually not enough for a party simply to file or tender a plan of land and rest content that the boundaries have been defined when there is nothing in the pleading and evidence against which to test the boundaries and even as well as the location and features of the said land – Odofin v. Ayoola (1984) 11 SC 72, Salami v. Oke (1987) 4 NWLR (pt 63) 1, Onwuchekwa V. Ezeogu (2002) 18 NWLR (pt 799) 333, Ogbogu v. Ugwuegbu (2003) 10 NWLR (pt 827) 189 and Fashina v. Ogunkayode (2005) 12 NWLR (pt 938) 147 at 112. Thus, it is not enough to draw the plan showing the features without giving credible of cogent and convincing evidence linking the ownership of the disputed land with the features. In other words, to show the features on the plan is one thing, but to lead credible and convincing evidence of ownership is another – Iriri v. Erhurhobara (1991) 2 NWLR (Pt 173) 252, Onabe v. Debang (1997) 7 NWLR (pt 514) 683, Fasina v. Ogunkayode (2005) 12 NWLR (pt 938) 147. A plan is supposed to be a mirror or picture of the evidence led by a party – Peterside v. Wabara (2011) 6 NWLR (pt 1243) 328.

Where there is no evidence correlating the property claimed by a party with the property depicted on a plan, the title of that party to the land claimed cannot be said to be ascertained – Ogedengbe v. Balogun (2007) 9 NWLR (Pt 1039) 380, Ukaegbu V. Nwololo (2009) 3 NWLR (pt 1127) 194. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONSTITUENTS OF A VALID TRANSFER OF LEGAL TITLE TO LAND UNDER ENGLISH PURCHASE

Therefore, a party claiming an equitable interest in a property must assert and prove facts that show that not only did he pay the purchase price, but that he was let into lawful possession of the property by the vendor – Kachalla V. Banki (2001) 10 NWLR (pt 721) 442. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: MODES OF SALE, ACQUISITION AND TRANSFER OF LAND IN NIGERIA

It is axiomatic in our jurisprudence that there are two clear and distinct ways in which land can be properly and rightly sold, valid acquired and legally transferred in Nigeria and these are either under customary law, or under the received English law – Folarin v. Durojaiye (1988) 1 NWLR (Pt 70) 351, Iragunima v. Uchendu (1996) 2 NWLR (Pt 428) 30, Ezeagu v. Onwuchekwa (1997) 4 NWLR (Pt 502) 689, Commissioner for Lands & Housing Kwara State v. Atanda (2007) 2 NWLR (Pt 1018) 360. What determines under which system of law the sale has been conducted depends on the nature of the transaction and the procedure followed in making it; for example sale by an agreement in writing is one of the absolutely necessary features of a valid sale under the received English law – Alade V. Aborishade (1960) SCNLR 398, Omidiran V. Owolabi (1994) 6 NWLR (pt 350) 361, Commissioner for Lands & Housing Kwara State V. Atanda supra, Agboola V. United Bank for Africa Plc (2011) 11 NWLR (pt 1258) 375. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

EMEKA OKOLI
SUNDAY AKANDE
EZEBILO SIMON OBI
CYPRIAN AGBO
PRINCE SIMON IROKO
EMEKA ACHI
THOMAS AMECHI
CHINEDU EZEOKE
WILIAM OLAYODE
ADEMOLA ADESINA
AJADI RAFI’U
THOMAS ISU
AMOS ADIKWU
YAKUBU SAFIYANU
FOLLIY AYENIGBA
ROWLAND IKENNA
DAVID AGAMAH
KENNETH EDOM
HYGENUS UGWU
CHIDI EMMEH
SAMUEL OYELEKE
UNKNOWN PERSONS Appellant(s)

AND

ALHAJI IBRAHIM GADAN GAYA Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/710/2010 delivered by Honorable Justice Tanimu Zailani on the 4th of May, 2010. The Respondent, as plaintiff, commenced the action in the Lower Court against the Appellants, as defendants, by an Originating Summons for Possession under the provisions of Order 50 of the High Court of Kaduna State (Civil procedure) Rules and he prayed for recovery of possession of property situate at Panteka and adjacent to the New Panteka Kaduna as depicted on the sketch plan of the area verged red and more particularly identified by the boundaries it shares with the shops/plot of Murtala painter, Abubakar, Samuel Panel Beater, Sule Panel Beater, Fatayi Panel Beater, etc on the ground that he is entitled to possession and that the persons in occupation are in occupation without his licence or consent. The Respondent raised two questions on the Originating Summons for the determination of the lower Court and these were:

i. Whether having regard to the sale of the property situate at Panteka, adjacent to the New Pantaka Market, off Nnamdi Azikiwe Way, Kaduna (and as depicted and verged red in the sketch plan) by the customary owners of the property to the Plaintiff as manifested in the Sale Agreement dated 17th September, 2002, the Plaintiff can be said to have acquired an equitable interest in the said property.

ii. Whether having regard to the dismissal of the claims of the Defendants as licensees on the said property by virtue of judgment in suit No KDH/KAD/909, the Plaintiff is entitled to recovery of the said property from the Defendants.

Consequent on the determination of the two questions, the Respondent prayed for an order directing the Appellants to vacate and deliver vacant possession of the property situate at Panteka, adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna and as depicted and verged red in the sketch plan to him forthwith. The originating summons was supported by an affidavit with exhibits attached and the Respondent filed a written address thereon. The Appellants responded to the originating summons by filing a defence and, a counter affidavit in support of the defence and to which were attached several exhibits and also a written address on the Originating Summons.

The case of the Respondent in the affidavit in support of the Originating Summons was that the property situate at Panteka, adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna and as depicted and verged red in a sketch plan attached as Exhibit A formed part of large stretch of land inherited by Messrs Abdul Mumuni, Jibrin dan Galadima Mahuta, Mai Anguwa Wada Alhassan and Abdullahi Alhassan from their late parents. It was his case that by a Sale Agreement dated 17th of September, 2002 he purchased the said property from the owners for the sum of N1 Million; photocopies of the Hausa version and the English version of the Sale Agreement were attached as Exhibits B and B1 and it was his case that the Appellants trespassed on the property without his consent or the consent of his predecessors-in-title and they took possession of the property under a claim that they were licensees thereon. It was his case that when he took steps to recover possession of the property, the Appellants commenced an action against him and his predecessors-in-title and the traditional rulers of the area of the location of the property in suit No KDH/KAD/9/2009 seeking, inter alia, the nullification of his purchase of the property and for a declaration that they were licensees on the property. It was his case that in the judgment of the High Court of Kaduna State in the said suit, the entire claims of Appellants were dismissed and certified copies of the statement of claim and of the judgment were attached as Exhibits C and D. It was his case that the Appellants have remained in possession of the property despite the judgment and that the order of the Court was necessary in order for him to take possession of the property.
The case of the Appellants in response was that all the named Appellants, some of whom were members of the National Automobile Technicians Association, were all allocated the different spaces they occupied on the property in dispute by the Kaduna South Local Government and that they have constantly and consistently paid the fates, fees and dues for the spaces to the Local Government since 1992; several receipts of payment, payment stall allocation cards and allocation letters were attached as exhibits. It was their case that, additionally, the first Appellant purchased the portion of land he occupied on the property it dispute from one Francis Aronbala who had earlier purchased the portion of land from Alhaji Salisu Kantoma in 1989 and copies of the documents of purchase were attached as Exhibit FO3 and FO4. It was also their case that the twentieth Appellant purchased his own portion of land, part of the property in dispute, from Alhaji Umaru Tafidan Gurau, one of the persons who allegedly sold the property to the Respondent and copy of acknowledgment of sale was attached as Exhibit KO1.

The lower Court took arguments on the Originating Summons and it deliberated thereon in its judgment thus:
“The real issue for determination is obviously that as formulated by the Plaintiff. Has the plaintiff made out case for resolution of the two questions raised? Is the Plaintiff entitled to the reliefs sought?

It is clear from the facts available in this Summons that the Plaintiff has acquired equitable interest in the landed property in dispute. Exhibit B and B1 attached to the plaintiff’s affidavit are clear and resting equitable right of the Plaintiff. See also the affidavit averments of the plaintiff. Exhibit C & D show that the Defendants did file a Suit No KDH/KAD/9/09 against the Plaintiff and these customary owners of the landed property. The exhibits clearly show the Defendants, claim in that case and the Court’s decision dismissing the entire claims. One of the reliefs sought in that case is for a declaration that the purported sale of the property between the Plaintiff and the customary owners was null, void and of no effect whatsoever; the court having decided on that cannot now re-open the subject. The Defendants had an option to appeal and they cannot raise the issue again before the same Court … Consequently, this Court cannot revisit the matter again.

With the plaintiff’s affidavit evidence, it is easy to answer the first question raised. It is answered in the affirmative. There is no doubt and same has been sufficiently proved that the Plaintiff has acquired, equitable interest in the disputed property.

And by the strength of the decision in the previous case No KDH/KAD/9/09, the Plaintiff is entitled to recover the property from the Defendants. This is more so because neither the plaintiff nor his predecessors in title gave the Defendants and other persons unknown license or consent to occupy the property … The existence of an order for recovery or a counter claim may not be necessary. The Defendants from the effect of the decision in KDH/KAD/9/09 cannot properly be left in possession of what does not belong to them. The plaintiff is right to submit this originating Summons in accordance with order 50 of the Rules of this court. The second question raised by the Plaintiff is also answered in the affirmative.

Having answered the two questions affirmatively, the Plaintiff has successfully and in accordance with Law proved his entitlement to the relief sought. Accordingly, I grant the relief and Order that the Defendants shall vacate and deliver possession to the Plaintiff the property situate at Panteka adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna and as depicted and verged red in the sketch plan forthwith.” (See pages 160 to 161 of the records)

The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal against it and their Counsel filed a notice of appeal dated the 1st of June, 2010. The notice of appeal contained three grounds of appeal.

In arguing the case of the Appellants on this appeal, their Counsel presented a brief of arguments dated and filed on the 21st of July, 2010 and it consisted of nine pages. The Respondent reacted by his Counsel filing a brief of arguments dated the 18th of November, 2010 and containing fourteen pages and the brief of arguments was deemed properly filed on the 9th of March, 2011. The Appellants filed a reply brief of arguments dated the 21st of March, 2011 and it contained seven pages. Counsel to the parties adopted and relied on their respective briefs of arguments at the hearing of the appeal.

Counsel to the Appellants formulated one issue for determination in this appeal from the three grounds of appeal and it was:
Whether, in the circumstances of this case, the commencement of this suit by way of originating summons as per order 50 of the Kaduna State High Court (Civil Procedure) Rules 2007 is appropriate.

In his brief of arguments, counsel to the Respondent formulated two issues for determination and these were:
i. Whether the trial court was justified in holding that the Respondent was right in initiating the suit by way of originating summons pursuant to order 50 of the Kaduna State High Court (Civil Procedure) Rules 2007 for recovery of possession of the disputed property.

ii. Whether having regard to the circumstances of this case, the trial Court was right in holding that the Respondent has acquired equitable interest in the disputed property and therefore entitled to possession.

The first issue formulated by the Respondent is the same as the sole issue formulated by the Appellants and the second issue of the Respondent can be treated as a sub-set and argued within the first issue for determination. This Court will approach the resolution of this appeal in this direction.

In arguing the appeal, Counsel to the Appellants stated that the appeal revolved around the interpretation of Order 50 of the Kaduna State High Court (Civil Procedure) Rules 2007, which in pari materia with the provisions of Order 59 of the Lagos State High Court (Civil Procedure) Rules 2004 and which received judicial interpretation in Nnoli V. Thanks Investment Ltd (2005) 11 NWLR (pt 935) 29.

Counsel stated that by the provisions of the Order, it was not applicable to a tenant or a tenant holding over or a licensee of the owner or person entitled to possession or a person who had the consent of the predecessor in title of the person who is entitled to possession. Counsel said that the position of the Appellants had always been that the property in dispute, more particularly described as Plot G.8 on government approved plan No TPO 483A situate at Mando Road Light Industrial Layout, New Panteka Market, Nnamdi Azikiwe Way, Kaduna belongs to the Kaduna State Government and they had been in active possession of the property since 1985 and had substantially developed the property with the consent of the Kaduna State Government. Counsel stated that the Appellants did not at anytime enter into a tenancy relationship with either the Respondent or with his alleged predecessors in title.

Counsel stated that the reliance of the Respondent on Exhibits B and B1 for his claim to acquiring an equitable interest in the property from some customary heirs was erroneous because the alleged purchase of the property being under customary law was not shown to have complied with the legal requirements necessary for transfer of title under customary law. Counsel stated that for valid transfer of land under customary law, the payment of the purchase price must be coupled with entry into possession in the presence of witnesses and these facts must be pleaded as well as the name of witnesses who saw the actual delivery of the land and that the Respondent did not establish compliance with these requirements; he referred to the cases of Folarin V. Durojaiye (1988) 1 NWLR (Pt 70) 351, Odusoga V. Ricketts (1997) 7 NWLR (Pt 511) 1, amongst others.

Counsel stated further that it was settled law that the Originating Summons procedure is adopted only where the sole or principal question at issue is or is likely to be the construction of a written law or any instrument made under any written law or of any deed, will, contract or other document or some other questions of law or where there is likely to be no substantial dispute on the facts relevant to the determination of the issue in controversy and he referred to the case of Doherty Vs Doherty (1968) NMLR 240. Counsel stated that the present proceedings were hostile and that Originating Summons was inappropriate. Counsel also referred to the provisions of Order 50 Rule 3 which requests a claimant using the Order 50 procedure to state his interest in the landed property in issue in the affidavit and how the property came to be occupied without his license or consent and he stated that the affidavit of the Respondent only made blanket statements without disclosing specifics facts in satisfaction of the requirement.
Counsel stated that the Respondent or his alleged predecessors in title did not counterclaim in Suit No KDH/KAD/9/09 and that as such the dismissal of the claims of the Appellants in the suit did not declare ownership of the property in dispute in the Respondent and that the lower Court was in error to have relied on the judgment in that suit to decree possession of the property in the Respondent. Counsel urged this Court to resolve the issue for determination in favour of the Appellants.

In response, Counsel to the Respondent reproduced the provisions of Order 50 of High Court of Kaduna Rules and stated that the categories of persons who were not liable there under to be evicted by the originating summons procedure were obvious and that the Appellants did not come within the categories. Counsel stated that the Appellants had claimed to be licensees of the Kaduna State Government and/or the Kaduna South Local Government on the property in dispute and that this assertion of the Appellants was dismissed by the High Court in Suit No KDH/KAD/9/09 and that additionally the Respondent complied with the requirements of order 50 by stating how he purchased the property to show his interest therein and that the Appellants were thereon without his consent or that of his predecessors in title. Counsel stated that the provisions of Order 50 was an innovation essentially aimed at the quick and summary procedure for recovery of possession of property occupied by persons that do not have requisite consent to do so as the Appellants in the instant case and he referred to the case of Nnoli V. Thanks Investments Ltd (2005) 11 NWLR (pt 935) 29 where the Court of Appeal interpreted similar provisions in Order 59 of the High Court of Lagos State Civil Procedure Rules 2004. Counsel submitted that the claim of the Respondent against the Appellants came within the purview of Order 50 of the High Court Rules and that the Respondent was right in initiating the action by originating summons and the lower Court was justified in holding that the action of the Respondent was in order.

Counsel stated that the position of the Appellants that the property in dispute belongs to the Kaduna State Government and had been in their active possession since 1985 and that they had substantially developed the property with the consent of the Kaduna State Government was fundamentally flawed as they were estopped from raising the issues again by reason of the judgment in Suit No KDH/KAD/9/09. Counsel stated that the Appellants had canvassed in that suit that they were licensees of the Kaduna State Government on the property in dispute and had sought to nullify the Respondent’s purchase of the property and the claims were dismissed by the High Court and that this created issue estoppel against their raising the same issues in the present suit and he referred to the cases Oshoboja V. Amida (2009) 18 NWLR (Pt 1172) 188 and Ntuks V. NPA (2007) 13 NWLR (pt 1051) 392.

Counsel stated further that nowhere in the processes filed before the lower Court did the Respondent claim that he purchased the property under customary law and that the assertion of the Respondent that it purchased the property from the customary heirs did not translate to purchasing the property under customary law and that the reliance placed on the Sale Agreement, Exhibits B and B1 showed that the sale was not under customary law as written agreement was alien to a sale under customary law; he referred to the case of Olowoake V. Salawu (2000) 11 NWLR (pt 677) 127. Counsel stated that the Sale Agreement was exempted from the provisions of the Land Registration Law and that the Agreement being for the purchase of the disputed property vested equitable interest in the property in the Respondent thus justifying the claims of the Respondent for possession of same from the Appellants who were on the property without his permission or that of his predecessors in title. Counsel stated that where land is sold and a purchase receipt issued, the purchaser possesses an equitable interest in the land which he can enforce by an action for specific performance and he referred to the case of Osagie V. Oyeyinka (1987) 3 NWLR (Pt 59) 144. Counsel stated that this entitled the Respondent to commence the action under the provisions of Order 50 of the High Court Rules. Counsel urged this Court to dismiss the appeal.

Order 50 Rule 1 of the High Court of Kaduna State (Civil Procedure) Rules 2007 states in essence that where a person claims possession of land which he alleges is occupied solely by a person not being a tenant or tenants holding over after the termination of the tenancy and being a person who is in occupation without his license or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.
Under these provisions, a claimant is allowed to commence an action against defendants described as “Persons Unknown” where the claimant does not know the identity of the persons in unlawful occupation of his premises. The procedure under Order 50 offers an applicant a summary procedure for recovery of possession of land wrongfully occupied by persons or by trespassers whose or some of whose names the applicant or claimant does not know. This is contrary to an ordinary or normal action for recovery of possession of land, in which the person in possession should be made a defendant so that he would be bound by the order of possession, when made in court. In a case where the landlord does not know the names of the illegal occupiers of his land or cannot even physically identify all of them, the requirement that the persons be made defendants to the action would result in great injustice and hardship to the landlord or land owner thus giving rise to the procedure under Order 50 – Nnodi V. Thanks Investment Ltd (2005) 11 NWLR (pt 935) 29.
Order 50 does not provide a new remedy but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers. The application of this Order is narrowly confined to the particular circumstances described in rule 1, i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remained in occupation without license of consent of the person in possession or of any predecessor of his. The order applies where the occupier has entered into occupation-without license of consent; and this Order also applies to a person who has entered into possession of land with a license but has remained in occupation without a license – Bristol Corporation v. Persons Unknown (1974) 1 WLR 365, Fiyakola House Development Company Ltd. V. Persons Unknown & 7 ors (1974) 12 CCHCJ 1907, Nnodi v. Thanks Investment Ltd (2005) 11 NWLR (pt 935) 29, Adedipe v. Theophilus (2005) 16 NWLR (Pt 951) 250. It does not extend to persons holding over after the expiration of a lease. Where the tenant of premises dies intestate, the landlord is not entitled to possession of the demised premises even as against trespassers, unless and until the tenancy has been effectively terminated by service of the requisite notices – Wirral Borough Council v. Smith (1982) 80 L.G.R. 628.

The provisions of order 50 are similar to the provisions Order 113 rule 1 of the Supreme Court Practice of England and the provisions of Order 59 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994 and Order 53 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004. In proceedings under this Order, the only claim that can be made in the Originating Summons is for recovery of possession of land; no other cause of action can be joined with such a claim in such proceedings, whether for payment of money, such as rent, mesne profits, damages for use and occupation or other claim for damages or for injunction or declaration or otherwise. The Order is narrowly confined to the particular remedy described in rule 1. No order for costs can be made except there is a named defendant.
Order 50 rule 3 of the High Court Rules request that a claimant applying under the Order shall file an affidavit stating (i) his interest in the land; (ii) the circumstance in which the land has been occupied without licence or consent and in which his claim to possession arises; and (iii) that he does not know the name of any person occupying the land who is not named in the summons – Ogunbiyi V. Mustapha (1996) 4 NWLR (pt 442) 337, Adedipe v. Theophilus (2005) 16 NWLR (Pt 951) 250, Persons, Names Unknown v. Sahris International Ltd (2006) 8 NWLR (Pt. 981) 255. Where a claimant shows by his affidavit that the circumstances of the occupation and/or continued occupation of the property in dispute by the defendants come within the provisions of order 50, the court is obliged to grant the order for possession as the court possesses no discretion to prevent the use of this summary procedure – Greater London Council v. Jenkins (1975) 1 WLR 155. Order 50 is a specific procedure and it is incumbent on a party using it to bring his case within its provisions – Re 9, Orpen Road, Stroke Newington (1971) 1 All ER 944. This is an out-flow of the elementary principle of law that where a specific procedure is provided for commencing an action, a party seeking to use the procedure must bring his case within those covered by that procedure otherwise his action will be incompetent – Saleh V. Monguno (2003) 1 NWLR (pt 801) 221 at 262 D-F, United Bank of Africa v. Ekpo (2003) 12 NWLR (Pt 834) 332 at 342 G-H and Ojong v. Duke (2003) 14 NWLR (pt. 841) 581 at 618 C-E.

The use of the summary procedure for possession under the provisions of order 50 of the High Court Rules is limited only to virtually uncontested cases for which default of summary judgment can be obtained or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to claim of the claimant to recover possession of the land or as to the wrongful occupation of the land without licence or consent and without any right, title or interest thereto – Henderson V. Law (1984) 17 HLR 237.
It is only applicable in the clearest of cases where the title of the claimant to the land is not in dispute and has been confirmed. Where the existence of a serious dispute is apparent, this procedure should not be used – Adedipe v. Theophilus (2005) 16 NWLR (Pt 951) 250. In Madam Sinotu Osinowo V. Persons Named Unknown (1976) 10 CCHCJ 2551, Cole J, speaking of order 113 of the English Rules, stated at page 2555 thus:
“This Order, in my view, is meant only to be employed in uncontested cases, where there is no issue or questions to be tried, and there is no reasonable doubt to the claim of the plaintiff to recover possession of the land, as example where the person wrongfully occupying the land cannot claim any right, title or interest in the land whatsoever.”

In the instant case, the Appellants did not admit the title or ownership of the property in dispute by the Respondent. This necessarily leads to the question of whether, from the facts deposed in the affidavit and counter affidavit of the parries in the lower court, the title of the Respondent to the land was not in dispute and had been confirmed so as to make the case amenable to the order 50 procedure. The Respondent predicated his interest in and title to the property on purchase of same for the sum of N1 Million from Messrs Abdul Mumuni, Jibrin dan Galadima Mahuta, Mai Anguwa Wada Alhassan and Abdullahi Alhassan who he claimed inherited the property from their late parents. It was his case that the purchase was evidenced by a Sale Agreement dated 17th of September, 2002 and copies of the Hausa version and the English version of the sale Agreement were Exhibits B and B1. The Respondent asserted that the purchase invested him with an equitable title to the property in dispute and that this gave him a right to possession of the property. The lower court found that these assertions proved affirmatively that the Respondent possessed an equitable interest in the property and this was the basis upon which the lower Court held that the case of the Respondent under the order 50 procedure was proper and on which it entered judgment in favour of the Respondent.

It is trite law that in order to constitute a transfer of legal title under English Law by purchase, there must be a valid sale, payment of money accompanied by acknowledgement of receipt and execution of a deed of conveyance. If a person sells his land to another and fails to put the person in possession, retains possession, the payment of money to the owner of a parcel of land does not per se amount to a transfer of title to the purchaser. The payment of purchase price must be accompanied either by a conveyance executed in favor of the purchaser to invest him with legal title or by entry into possession by the purchaser to give him equitable title to the land – Folarin v. Durojaiye (1988) 1 NWLR (Pt 70) 351, Ejiniyi v. Adio (1993) 7 NWLR (pt 305) 320, Iragunima v. Uchendu (1996) 2 NWLR (pt 428) 30, Buraimoh v. Karimu (1999) 9 NWLR (Pt 618) 310, Olowoake v. Salawu (2000) 11 NWLR (Pt 677) 127, West African Cotton Ltd v. Yankara (2008) 4 NWLR (Pt 1077) 323. A purchase receipt confirms the sale of a property but is not enough to confirm that title in the property had passed to the purchaser – West African Cotton Ltd v. Yankara supra. Where land is sold under the received English Law and money is paid and receipts are issued, the purchaser can only acquire an equitable interest if he goes into possession – Ogunbambi v. Abowab (1951) 13 WACA 222, Folarin V. Durojaiye supra and Iragunima V. Uchendu supra.
Therefore, a party claiming an equitable interest in a property must assert and prove facts that show that not only did he pay the purchase price, but that he was let into lawful possession of the property by the vendor – Kachalla V. Banki (2001) 10 NWLR (pt 721) 442. In the instance case, the Respondent placed reliance on the Sale Agreement, and on nothing more, as investing him with the equitable title to the property in dispute. The English version of the Sale Agreement, Exhibit B1, read thus:
“We, Abdul Mumuni, Jibrin dan Galadima Mahuta, Mai Anguwa Wada Alhassan and Abdullahi Alhassan today 17th of Sept 2002 we sold to Alhaji Ibrahim Gadar Gaya our plot that is located close to Panteka Kurmin Mashi Kaduna for the sum of One Million Naira (N1, 000,000) and he has paid us in the Presence of witnesses …”

This document merely evidenced payment of purchase price by the Respondent, and it did not show or contain facts that show that the Respondent was at any time either before or after the payment of the purchase price let into lawful possession of the property in dispute by the vendors. The Respondent did not assert any fact of being in possession or of being let into possession of the property by the vendors. As stated earlier, payment of purchase price alone does not vest equitable title of property and the best that the payment of purchase price can do is to entitle the purchaser to a claim for specific performance of the contract of sale – Biyo V. Aku (1996) 1 NWLR (pt 422) 1, Mini Lodge Ltd v. Ngei (2009) 18 NWLR (pt 1173) 254 and Mustapha v. Abubakar (2011) 3 NWLR (pt 1233) 123. The lower court was thus in error when it found that Exhibits B and B1 vested equitable title to the property in dispute in the Respondent.

Additionally, the property said to have been sold to the Respondent by the Sale Agreement, Exhibit B1, was described by vendors as “our plot that is located close to Panteka Kurmin Mashi Kaduna”. The parcel of land claimed by the Respondent to belong to him in the instant case by the said purchase was described as the property situate at Panteka and adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna as depicted on the sketch plan of the area verged red and more particularly identified by the boundaries it shares with the shops/plot of Murtala painter, Abubakar, Samuel Panel Beater, Sule Panel Beater, Fatayi Panel Beater, etc and sketch plan was attached as Exhibit A. Clearly, the description of the property sold by Exhibit B1 is not the same as the description of the property claimed by the Respondent in this matter, and as depicted on Exhibit A, and there is nothing in the affidavit of the Respondent showing the correlation between the properties described in both documents.

The title of the Respondent to the property claimed was thus not definite, clear and confirmed as to enable him adopt the Order 50 procedure as he did in the lower court. The error of the lower court in not detecting this anomaly in the case of the Respondent under the Order 50 procedure, obviously stemmed from the reliance it placed on the judgment of the High Court of Kaduna State in Suit No KDH/KAD/9/09, Exhibit D. In that case, the Appellants commenced an action against the Respondent and his vendors to assert their right of claim as licensees to the land in dispute. The Respondent and his vendors did not counterclaim in the matter to assert any right to the land in dispute. The High Court of Kaduna State dismissed the claims of the Appellants. Part of the findings of the lower court in the instant case was that “by the strength of the decision in the previous case No KDH/KAD/9/09”, the Respondent was entitled to recover the property from the Appellants and that the fact that the Respondent did not claim for recovery of possession of the land or counterclaimed for ownership of the land in the suit was unnecessary.

The lower Court, with respects, apparently overlooked the principles of land law that state that where a party asserts title to land, the onus is always on him to succeed on the strength of his own case and not on the weakness of the defence and so the rejection of the case of the defence would not discharge the burden on him to prove his case to entitle him to judgment – Bornu Holdings Co Ltd V. Bogoco (1971) All NLR 324, Ewulu v. Nwakpu (1991) 8 NWLR (Pt 210) 487. A claimant who asserts ownership of land must prove his case on his evidence and will fail if he does not establish his claim before the court and the fact that the defendant previously lost a claim for ownership to the same land in a previous suit does not help the claimant at all because the onus is always on him to prove his case – Eboha V. Anakwenze (1967) NMLR 40, Elufisoye V. Alabetutu (1968) NMLR 298, Amida V. Oshoboja (1984) 7 SC 68, Gankon V. Ugochukwu Chemical Industries Ltd (1993) 6 NWLR (pt 297) 55, Bunyan v. Akingboye (1999) 7 NWLR (pt 609) 31, Oshoboja v. Dada (1999) 12 NWLR (pt 629) 102. This is because the dismissal of the claims of a party to ownership of land does not decree ownership of the land in the other party, he not having counterclaimed for ownership – Akawu V. Mai-Unguwa (1998) 5 NWLR (pt 551) 665, Barje v. Gunduma (2001) 13 NWLR (Pt 731) 673, Olisa V. Asojo (2002) 1 NWLR (pt 747) 13, Nwokedi V. Okugo (2002) 16 NWLR (Pt 794) 441, Darma v. Batagarawa (2002) 17 NWLR (pt 796) 243, Anwoyi v. Shodeke (2006) 13 NWLR (Pt 996) 34, Olubodun v. Lawal (2008) 17 NWLR (Pt 1115) 1. The outcome of Suit No KDH/KAD/9/09 did not thus assist the claim of the Respondent to own the property in dispute in any way.

The use of the Order 50 procedure by the Respondent to seek recovery of possession of the property in dispute from the Appellants was inappropriate in the circumstances. The procedure adopted by the Respondent was not available to him on the facts of this case because he did not show that his title to of ownership of the property in dispute had been confirmed, was untainted, clear and without dispute.
The lower court thus fell into error when it held that the procedure was proper and when it went ahead to grant the order for recovery of possession of the property in dispute. The issue for determination in this appeal is resolved in favour of the appellants.
In conclusion, this Court finds merit in this appeal and it is hereby allowed. The judgment of the High Court of Kaduna State in Suit No KDH/KAD/710/2010 delivered by Honorable Justice Tanimu Zailani on the 4th of May, 2010 is hereby set aside. The suit of the Respondent as filed before the High Court is hereby struck out as having been commenced by an inappropriate procedure. The Appellants are entitled to the cost of this appeal assessed at N75,000.00. These shall be the orders of this Court.

ABDU ABOKI, J.C.A.: The lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, was made available to me and I agree with the conclusion reached that there is merit in this appeal and same is allowed.
I abide by the consequential order as to costs.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, in the leading judgment and I agree with his reasoning and conclusions completely.
I abide by the consequential orders in the lead judgment.

Appearances

Abubakar Garga GundaFor Appellant

AND

O. I. Habeeb with Murtala Abdul RasheedFor Respondent