JACOB ADAMU v. GEORGE IGWESI
(2014)LCN/7402(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of July, 2014
CA/K/2/2012
RATIO
LAND LAW: TITLE TO LAND; WHETHER A LAW THAT IS REGISTRABLE BUT HAS NOT BEEN SO REGISTERED CANNOT BE PLEADED OR GIVEN IN EVIDENCE
This position of the law is not only trite but axiomalic that an instrument which is by virtue of Sections 2, and 3 of the said law registerable, but has not been so registered, cannot be pleaded or given in evidence. (See Section 15 of the law). See Ogbimi v. Safejo, (supra), Agboola v. UBA Plc (supra), Igbum v. Nuaringa (2001) 5 NWLR (Pt 707) 554, Monkom v. Odili (2010) 2 NWLR (Pt. 1179) 419, Ojugbele v. Olagoji (1982) 4 SC 31. per. AMINA AUDI WAMBAI, J.C.A.
LAND LAW: TITLE TO LAND; WHEN IS AN UNREGISTERED REGISTRABLE INSTRUMENT AFFECTING LAND ADMISSIBLE
The law is settled that an unregistered registrable instrument affecting land cannot be admitted in evidence and be relied upon as proof of any transfer, grant, conferment extinction or limiting of any right, title or interest in land from one person to another.  However, an unregistered registrable instrument may be admissible to prove the fact that money exchanged hands between the parties or to establish the transaction between the vendor and the purchaser. Such an unregistered registrable instrument is admissible as an acknowledgement of payment of money. See Obijuru vs. Ozims (1985) 2 NWLR (Pt. 6) 167, Monkon v. Odili (supra). In Agboola v. UBA Plc (supra) decided in 2011 by the Supreme Court Aloma Mariam Muktar JSC as he then was, (now the CJN) at p.406 paras E – C said thus:-
“….I am satisfied that even though the document was not registered, and was not admissible in view of the provision of Sections (2) and (15) of the Land Instrument Registration Law, it was admissible for the purpose of establishing the transaction between the vendor and the purchaser.” per. AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF OF PLAINTIFF TO PROVE WHAT HE CLAIMED IN HIS PLEADINGS AND WHEN IT IS DISCHARGED
The respondent as the plaintiff before the lower court had the duty to prove what he claimed in his pleadings. The duty rested squarely on the respondent to adduce credible and cogent evidence in support of his pleadings to entitle him to the reliefs sought from the court. The respondent as plaintiff must succeed only on the strength of his evidence and not on the weakness of the appellant’s case. See Gbadamosi v. Daro (2007) 3 NWLR (Pt. 1021) 282, Onissaodu v. Elewuju (2006) 13 NWLR (Pt 998) 517.
This is because the burden stands unequivocally firm on the shoulders of the plaintiff and does not for a second shift to the defendant until the plaintiff proves what he claim, then the burden would shift to the defendant to lead contrary evidence to dislodge the plaintiff’s evidence.
This is why the onus on the plaintiff has been described as constant as the rising of the sun from the East and its setting from the West everyday.
See Nwabuoku v. Onwordi (2006) 5 S.C (Pt. 111) 103.
This burden is however discharged on the balance of probabilities when the evidence adduced by the plaintiff outweighs that adduced by the defendant or preponderates and tilts the scale in favour of the plaintiff, the plaintiff would be said to have discharged the burden. See Odofin v. Mogaji (1978) 4 SC 91. per. AMINA AUDI WAMBAI, J.C.A.
LAND LAW: IDENTITY OF THE LAND IN DISPUTE; WHETHER IT IS NOT THE NAME BY WHICH THE LAND IN DISPUTE IS CALLED THAT MATTERS BUT THAT THE VARIOUS NAMES BY WHICH IT IS CALLED OR DESCRIBED REFER TO ONE AND THE SAME PIECE OF LAND
It is not the name by which the land in dispute is called, that matters, what matters is that the various names by which it is called or described refer to one and the same piece of land. See Awoyoola v. Aro (2006) All FWLR (pt. 308) 1319 at 1332 – 1333 G – H, wherein the several other Supreme Court cases, Maberi v. Alade (1987) 4 SC 184, were referred to. per. AMINA AUDI WAMBAI, J.C.A.
LAND LAW: POSSESSION; TYPES OF POSSESSION AND WHAT CONSTITUTES SUFFICIENT ACT OF POSSESSION
Although the word possession, has a wide and sometimes vague and ambiguous impart, there is no doubt that possession of land can either be de-factor or de-jure possession. Effective, physical or manual control or occupation of land, amounts to de-facto possession, while the possession animo possidendi with that amount of occupation, control or the right to occupy at will which is sufficient exclude other persons from entering is usually referred to as the de-jure possession. The de-jure or the legal possession, also includes constructive possession. See Buraimoh v. Bamgbose (1989) 6 SC (pt. 1) 1 at 12.
As to what constitutes sufficient act of possession, it is a question of fact to be proved in each case. The mere act of erecting survey pillars on the land has been held to constitute an efficient act of possession. See Ayuba v. Salaum (1989) 3 NWLR (Pt. 109) 292, Ladipo v. Ajani (1997) NWLR (Pt 517) 356, 362. per. AMINA AUDI WAMBAI, J.C.A.
LAND LAW: IDENTITY OF LAND; THE DUTY OF THE PARTIES TO PROVE WITH A DEGREE OF CERTAINTY THE IDENTITY OF THE LAND AND WHETHER THE TRIAL COURT WOULD NOT VISIT THE LOCUS IN QUO WHERE THE PARTIES FAILS TO DO SO
While a trial court is enjoined to visit the locus in quo where such visit will clear a doubt as to the accuracy of one piece of evidence in conflict with another, for the purpose of resolving the conflict, the law places on the parties to prove with a degree of certainty the identity of the land they claim. See Ezekwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227.
The appellant had the duty of not only pleading with accuracy, the precise parcel of land he claimed in his counter-claim, but also the duty of proving the identity of same with the same degree of precision exactness and accuracy. See Nwokorobia v. Nwosu (2009) 10 NWLR (Pt. 1150) 553.
Where a party fails to do so, the trial court would not be required to visit the locus in quo in order to assist the party to ascertain the identity of the land he claims. To require the court to visit a locus in quo to assist a party in proving the identity of the land he claims, will obviously be outside the purview of resolving conflicting evidence. per. AMINA AUDI WAMBAI, J.C.A.
LAND LAW: TRESPASS TO LAND; WHETHER THAT A PERSON WHO IS NOT IN POSSESSION HAS NO RIGHT TO CLAIM FOR TRESPASS AND WHEN IS TRESPASS TO LAND ACTIONABLE
The law is settled that a person who is not in possession has no right to claim for trespass. Trespass to land is actionable at the suit of the person in possession of the land. The person can sue for trespass even if he is neither the owner nor a privy of the owner. This is so since exclusive possession of the land gives the one in such possession the right to retain it and to undisturbed enjoyment of it against all wrong doers except a person who could establish a better title. Per Fabiyi JSC at page 209 in Skye Bank & Anor vs. Chief Moses & Anor (2010) 3 SCNJ 792 at 209. It is also settled law that once a party establishes his legal right in law or in equity as in this case, the respondent having established his equitable right, an injunction would be granted to protect his established right. Lawal v. Adeniyi (supra). Such a person, like the respondent can maintain the injunction against every person except a person who proves a better title or interest than him. See Udo v. ITCMRC (supra). per. AMINA AUDI WAMBAI, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
HABEEB OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
JACOB ADAMU – Appellant(s)
AND
GEORGE IGWESI – Respondent(s)
AMINA AUDI WAMBAI, J.C.A (Delivering the Leading Judgment): This appeal is from the decision of Kaduna State High Court in suit No. KDH/KAD/198 delivered on 18th January, 2011 by T. Zailani J, wherein judgment was entered in favour of the respondent and also dismissed the appellant’s counter-claim.
At the lower court, the respondent as plaintiff claimed against the appellant (as defendant) as follows:-
“a. AN ORDER of Court declaring the plaintiff as the person entitled to the statutory right of occupancy over an un-numbered plot of land measuring 100ft by 50ft situated at Madaki close, A/Pama Sabon Tasha, Kaduna sometimes referred to as Light Avenue which plot of land is next to an un-numbered plot before No: 10 and 12 of the same close.
b. AN ORDER of perpetual injunction restraining the defendants either by themselves or through their agents, privies, assigns or whomsoever from further entering into or interfering with physical possession of a plot of land measuring 100ft by 50ft situated at Madaki Close, A/Pama, Sabon Tasha, Kaduna sometimes referred to as Light Avenue which plot of land is next to an un-numbered plot before No: 10 and 12 of the same close.
c. General damages against the defendants in the sum of N500,000.00 for the defendant’s act of trespassing into the plaintiff property and also for chasing the plaintiff out of his property thereby stopping the plaintiff from continuing his development which act caused the plaintiff damages.”
The appellant as the 1st defendant also counter-claimed as follows:
“(a) AN ORDER declaring title in respect of the land in dispute in favour of the 1st defendant.
(b) AN ORDER of perpetual injunction restraining the plaintiff, his agents, privies, assigns or whosoever from laying any further claim in respect of the land in dispute.
(c) SUCH FURTHER order or orders as the Honourable Court may deem fit to make in the circumstance.”
At the close of pleadings and conclusion of the pre-trial conference, the respondent as plaintiff called 4 witnesses and tendered 6 exhibits. The appellant as 1st defendant called 2 witnesses and tendered 4 exhibits. Second defendant before the lower court did not participate in the trial.
The case for the respondent is that the respondent a businessman, on the 9/8/2006 bought an un-numbered piece of land close to an unnumbered plot before No.10 and 12 of the same close measuring 100ft x 50ft situate at Madaki Close Anguwan Pama Sabon Tasha, sometimes also referred to as Light Avenue, Kaduna from one Josiah C. Obijiafor, now deceased. Late Obijiafor bought the land from one E.O. Ajalana (PW4) in 2003, who also bought the land from one Mrs C.O. Ogungbede the original owner, in 1982.
Before buying the land from late Obijiafor, the respondent had enquired and confirmed the status of the land from both the District Head of Sabon Tasha and the Sarkin Anguwan Pama, both of whom visited the land and confirmed same. The District Head wrote a letter, an application for issuance of Certificate of Occupancy in favour of the respondent to the Chairman of Chukun Local Government Area in Hausa language. Both the Hausa and its English translation were tendered and admitted as exhibits 4 and 5 respectively.
The deed of assignment between the respondent and Obijiafor, the Sale Agreement between Obijiafor and E.O. Ijalana and the Sale Agreement between E.O. Ijalana and Mrs C.M Ogungbade were tendered and admitted as exhibits 1, 2 and 3 respectively.
After the purchase, the respondent took steps to secure the property as there was already a short fence at each of the four corners of the land. The respondent was prevented from developing the land by the appellant who claimed that the land belongs to him.
The case for the appellant is that the land in dispute had been trespassed on in 2003 and 2004 even before respondent claimed he bought the land. The Appellant’s case is that he bought a piece of land of 50ft x 50ft from one Danlami Sule on 12/5/2000 and was issued with agreement of transfer.
On 22/2/2001, he bought another piece of land close to the one he bought from Danlami Sule, at the rate of N50,000 and was issued with an agreement of transfer. This 2nd pieces of land, was bought from one Muhammad Malumfashi through Mr. Markus M. Jatau (DW1) who also got the information from one Mallam Bawa. The sale transaction which took place at the palace of the village head was witnessed by Dw1, Mallam Bawa and a representative of Unguwan Garba (Hausa Community).
After the appellant had bought the land in 2001, in the year 2003 an estate agent trespassed into the land by placing a signboard thereon advertising the land for sale, contending that some one asked him to do so.
Appellant reported to the village head who invited the parties for investigation but abandoned the investigation from January to June, 2003 and without inviting Muhammad Malumfashi from whom the appellant bought the land in dispute.
Again in 2004 one Inspector Byafena and Sylvanus Elam trespassed into the land claiming that the land belongs to their late brother. The appellant was arrested and detained for 3 days in respect of the said claim by Inspector Timothy Byafena. After his release, appellant petitioned the Commissioner of police for unlawful arrest and detention on the instruction of Inspection Byafena in respect of a land dispute. The matter was investigated by the police. The sale agreement between appellant and Danlami Sule dated 12/05/2004, the sale agreement between appellant and Muhammad Malumfashi dated 22/02/01, petition written by the appellant to the Commissioner of Police against Inspector Byafena and Sylvanus for unlawful arrest and detention etc. were admitted as exhibit D1, D2, DW3.
After hearing the case, the learned trial Judge found for the respondent and dismissed the appellant’s counter-claim.
Dissatisfied with the said judgment, the appellant through his counsel, Y.J. Haruna Esq, filed a Notice of Appeal on the 14th April, 2011 challenging the decision on 5 grounds of appeal.
In compliance with the Rules of this Court, both counsel filed and exchanged briefs of argument.
The appellant’s brief of argument dated 18/10/2012 and filed on 31/01/2013 was deemed as duly filed on 2/5/2013 same was settled by Y.J. Haruna Esq.
The respondent’s brief of argument was settled by Chukwuemeka Chuks T. Agu Esq.
In his brief of argument, the learned appellant’s counsel raised 4 issues for determination as follows:-
“1. Whether the learned trial court Judge was right when he held that the respondent is entitled to an injunction against the appellant despite the fact that the respondent could not prove title to the said land in dispute (Grounds one and two).
2. Whether the learned trial court Judge was right to have held that Exhibits 1, 2 and 3 need not be registered (Ground two).
3. Whether the learned trial court Judge was correct to have held that there is nothing in the PWs testimonies to suggest that the respondent’s/plaintiff at the lower court evidence is un-reliable (Grounds three and four)”
The learned respondent’s counsel also distilled 4 issues which, except for the appellant’s 4th issue and the respondent’s 4th issue, are substantially the same with those of the appellant’s issues 1 – 3 though differently put.
The respondent’s 4th issue is:
“Whether the appellant was able to establish any legal claim/title over the subject matter before the lower court (from ground 5).
From the appellant’s issues 1, 2, 3 and 4, the respondent’s issue No. 4, the evidence placed before the lower court, encompasses.
I am of the view that the following issues will determine this appeal, viz:
“(1) Whether the respondent’s exhibits 1, 2, and 3 and the appellant’s exhibits D1 and D2 are registrable instrument and the trial Judge was right to have admitted them in evidence.
(2) Whether the respondent who did not prove title to the land proved a better right in the land than the appellant to warrant the grant of the perpetual injunction granted by the lower court in his favour against the appellant.”
ISSUE NO. 1
Whether the respondent’s exhibits 1, 2, and 3 and the appellant’s exhibits D1 and D2 are registerable instrument and trial Judge was right to have admitted them in evidence.
It is canvassed for the appellant that the respondent’s exhibits 1, 2 and 3 which are the deed of assignment and sale agreements in respect of land, are all registerable instruments by virtue of Section 15 of the Kaduna State Land Instrument Law 1991 and having not been registered, ought not to have been admitted by the learned trial Judge for any purpose whatsoever, on the authority of the Supreme Court in Ogbimi v. Niger Const. Ltd (2006) 9 NWLR (Pt. 986) 474 at 493 – 494 paras G – A, by which decision the supreme court has shifted from its former position of permitting such documents to be admitted to prove payment for land.
Such unregistered document, counsel contend, relying on Bob-Manuel v. Udoji (2010) 8 NWLR (Pt 1196) 260, at 275 paras A – E cannot even be pleaded or given in evidence in any court affecting any land.
Counsel contends further that it is only when such a registerable instrument is registered that the issuance of Certificate of Occupancy can arise as Certificate of Occupancy is a prima facie evidence of exclusive possession. Jiwul v. Dimlong (2003) 9 NWLR (Pt. 824) 154, at 192 – 214 was referred to.
As to what qualifies a document as an instrument affecting land, counsel relied on Monkom vs. Odili (2010) 2 NWLR (Pt. 1179) p.149 at 446, B-C.
Relying on Alade v. Olukade (1976) 6 SC 183 and Owoniyi v. Omotosho (1961) All NLR 304, learned counsel urged us to expunge the said documents and to his return of negative answer to his 2nd issue raised and to allow the appeal.
In response it was canvassed by the respondent that exhibits 1, 2, and 3 which were all objected to when tendered in evidence and which were only tendered shows that the land was purchased by the parties do not require registration to support the respondent’s 1st claim for an equitable remedy and 2nd claim for injunction. Reliance was placed on the Supreme Court case of Agboola v. UBA (2011) 3 SCNJ 208, 239.
Respondent’s counsel contended that only the appellant’s exhibits D1 and D2 tendered to support the appellants claim for declaration of title in his counter claim that required registration. Counsel maintained that exhibits 1, 2, 3 do not require registration to support his relief sought one of which was granted by the lower court.
To resolve this issue, it is important to bring to bear not only the provisions of the said Section 15 and of course Section 2 of the Kaduna State Land Registration Law, 1991 under consideration but also the contents of the said exhibits.
Section 15 Kaduna State Land Registration Law Cap 85 provides:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.”
Section 2 defines instrument as: a document affecting land whereby one party called the grantor, confers, transfers, limits, charges or extinguishes in favour of another party called the grantee, any right or title to, or interest in land and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
To determine whether the said exhibits fall within this definition, I shall determine the contents.
Exhibit I is a deed of assignment between the respondent and Mr. Josiah C. Obijiafor and Mr. George Igwesi (the respondent) over a plot of land measuring approximately 100ft x 50ft situated at Unguwan Pama, Sabo Tasha, Kaduna. Same was prepared by the learned respondent’s counsel, Chukwuemeka Chuks Agu Esq, and made on the 9th day of August, 2006.
By the contents of the said deed, the assignor assigned into the assignee all the assignor’s right and interest over the property described therein in consideration for the payment of the sum of N50,000.
Exhibit 2 is a “Sale Agreement” between Ezekiel Ijalana and Josiah C. Obijiafor made in 2003. In paragraph 2 of the recital, the vendor (Ezekiel Ijalana) agreed, after negotiation with the purchaser (Josiah O. Obijiafor) to sell to the purchaser the plot of land (an area) measuring approximately 100ft x 50ft. Subject to the conditions here contained.
Exhibit 3 is an “Agreement Form” between Mrs C.M. Ogungbade and Mr. E.O. Ijalana for the sale of plots of land at Tsauni Nkura (Anguwan Pama) made on 16/3/1982.
On the part of the appellant, exhibit D1 is titled:
“Agreement of transfer and sales of land/house ownership located at …..Unguwan Pama Kaduna.”
It is an agreement made on 12/5/2000 between Danlami Sule and Jacob Adamu, the appellant for the sale of a piece of land measuring 50ft x 50ft. The seller was to vacate the land for the buyer (appellant by the said date).
Exhibit D2 is another “Agreement of transfer and sales of land/house ownership” located at Unguwan Pama Sabon Tasha made on 22/2/2001 by which Muhammad Malumfashi agreed to sell the said piece of land to the appellant (Mr. Jacob Igwesi) for N50,000 and to vacate the land by the said 22/2/2001 for the appellant.
The said Exhibits 1, 2 and 3 tendered by the respondent and exhibits D1 and D2 no doubt are registerable instruments within the meaning of Section 2 of the law as all of them are documents which seek transfer title or interest in the land from one person to the other. In all the exhibits, the vendors or the assignors extinguished that interest in the land in favour of the purchasers or the assignees to whom the land was purportedly transferred.
Exhibit I for instance, is a deed of assignment wherein the grantor (assignor) specifically assigned his right and interest in the land to the assignee, the respondent. By exhibits 2 and 3 also the vendors agreed to transfer, extinguish or limit that right or interest in the land to the purchaser in each of the exhibits.
In the same manner, the contents of exhibits D1, and D2 are by the same force of law, registerable instruments affecting land. Indeed both exhibits D1 and D2 are titled “Agreement of transfer.” Therefore I hold that in so far as exhibits 1, 2, 3 and D1 and D2 are documents affecting land by which one party, the grantor, conferred, transferred or extinguished in favour of another, the grantee, in this case the respondent in case of exhibits 1, 2, 3 and the appellant in case of exhibits D1, D2 any right or title to or interest in the land in question, they are within the meaning of Section 2 of the Lands Instrument Law, Kaduna State Cap 85 instruments. See Ogbimi v. Niger Const Ltd (supra).
By Section 6 of the law, every instrument executed after the commencement of the law (1st January 1925) shall be registered. By Section 15 no instrument affecting any land shall be pleaded or given in evidence in any court unless same has been registered in the proper office as specified in Section 3. The specified office referred to in Section 3 is the Land Registry which may have an office or officers at such place or places as the Commissioner may from time to time direct.
A cursory look at these exhibits shows the absence of any form of registration. In other words, none of these exhibits was registered in accordance with Section 3.
Both the respondent and the appellant admit that the documents were not so registered. The fact of the none registration of these exhibits is therefore common ground.
However, contrary to the contention of the learned respondent’s counsel that exhibits 1, 2 and 3 do not require registration, the said exhibits being instruments affecting land, are registrable instruments which by Sections 3 and 15 must be registered to make them admissible in evidence.
This position of the law is not only trite but axiomalic that an instrument which is by virtue of Sections 2, and 3 of the said law registerable, but has not been so registered, cannot be pleaded or given in evidence. (See Section 15 of the law). See Ogbimi v. Safejo, (supra), Agboola v. UBA Plc (supra), Igbum v. Nuaringa (2001) 5 NWLR (Pt 707) 554, Monkom v. Odili (2010) 2 NWLR (Pt. 1179) 419, Ojugbele v. Olagoji (1982) 4 SC 31.
The pertinent question is whether such an unregistered registrable instrument which is inadmissible to prove title or interest in land by virtue of Section 15, is inadmissible for all purposes, to support any transaction or payment of money for any transaction. This is the contention of the learned appellant’s counsel relying on Ogbimi v. Niger Construction Ltd (supra) at 493 – 494 paras G -4, contending that the Supreme Court has shifted from its former position. In the Ogbimi’s case decided in 2006, exhibit B which was a letter written by Amukpe Community Sapela in Delta State, through a letter was a document which granted a piece of land to the appellant. The said letter, exhibit B, by its contents was held to qualify as an instrument affecting land by which the grantor purported to transfer title to the grantee and therefore registrable.
The lower court admitted the said letter (exhibit B) as prove of the appellant’s interest in the land purportedly transferred to him by exhibit B.
On appeal to this Court, the said exhibit was held to be inadmissible and expunged from the record. The Supreme Court considered the provisions of Section 16 of the then, Bendel State Land Registration Law (in pari materia with Section 15 under consideration), upheld the expulsion of exhibit B by this Court. Then at pages 493 to 494 at paragraphs H – D said:
“From the above it is clear and I agree with the lower court that exhibits which was not registered in accordance with the above provisions is hereby rendered inadmissible and that its admission by the trial court was erroneous and subject to be set aside.”
This pronouncement by the Supreme Court has been its consistent position in the interpretation of the said Section 16 or any similar provision and Section 15 of the Kaduna State Law, as Section 16 of the then Bendel State Law they are interpreted by the Supreme Court, makes it very clear and there are several repeated conditions to that effect, that such an unregistered registrable instrument is inadmissible in evidence.
However, the Supreme Court did not go further in the Ogbimi’s case to say what learned appellants counsel has ascribed to it, to wit, that it is inadmissible for all purposes.
It is important to state that in Ogbimi’s case the trial court admitted exhibit B as supporting proof of title of the appellant to the land transferred to him by exhibit B. It was on the basis of that, that this Court and the Supreme Court held that same was inadmissible. Ogbimi’s case did not decide and same cannot therefore be relied upon to contend that an unregistered registrable document is for all purposes inadmissible in evidence.
The law is settled that an unregistered registrable instrument affecting land cannot be admitted in evidence and be relied upon as proof of any transfer, grant, conferment extinction or limiting of any right, title or interest in land from one person to another.  However, an unregistered registrable instrument may be admissible to prove the fact that money exchanged hands between the parties or to establish the transaction between the vendor and the purchaser. Such an unregistered registrable instrument is admissible as an acknowledgement of payment of money. See Obijuru vs. Ozims (1985) 2 NWLR (Pt. 6) 167, Monkon v. Odili (supra). In Agboola v. UBA Plc (supra) decided in 2011 by the Supreme Court Aloma Mariam Muktar JSC as he then was, (now the CJN) at p.406 paras E – C said thus:-
“….I am satisfied that even though the document was not registered, and was not admissible in view of the provision of Sections (2) and (15) of the Land Instrument Registration Law, it was admissible for the purpose of establishing the transaction between the vendor and the purchaser.”
Indeed our law reports are reported with both decisions of the Supreme Court and of this court that an unregistered registrable instrument though inadmissible to prove title or interest in land, is admissible to establish the transaction between a vendor and a purchaser that money exchanged hands.
Thus exhibits 1, 2 & 3 which were tendered by the respondent and without any objection by the appellant, as proof that money exchanged hands between the respondent and the last vendor, support an equitable remedy were properly admitted by the lower court for that purpose.
Similarly, exhibits D1 & D2 when tendered by the appellants were objected to by the respondent but the objection was overruled by the trial Judge who held that to the extent that they were tendered to prove payment for the law, they were admissible. (See page 162 of the record). In this wise, exhibits D1 & D2 for the purpose for which they were admitted and not for the purpose of proving ownership or any transfer or interest in the land, were also properly admitted. I therefore hold that exhibits 1, 2, 3, D1 & D2 for the purpose for which they were admitted were properly admitted in evidence by the learned trial Judge. I therefore return a positive answer to this issue that is to say that the said exhibits though were unregisterable instruments, the learned trial Judge was right to have admitted them in evidence in proof of the respondent’s as appellant’s equitable interest in the property. In the circumstance, there is no basis to expunge the said exhibits from the record as has been urged by the learned appellant’s counsel.
I now proceed to consider the 2nd issue, to wit:
ISSUE NO. 2
Whether it was necessary for the learned trial judge to have visited the locus in quo to exercise whether the respondent and the appellant were claiming the same piece of land.
This issue encompasses the appellant’s issues Nos 1, 3 & 4 as well as the respondent’s issue No. 4.
The learned counsel for the appellant while relying on some authorities submitted that respondent as the plaintiff before the lower court had the onus of proving his case the success of which must depend on the strength of the evidence offered before the court and not on the weakness of the defence.
Learned counsel submitted that only a person in possession, being in occupation or plupical control of the land either personally or this tenants, agents or servant can sue for possession and injunction for trespass. That once possession is proved an order for injunction would naturally flow to protect the possession, only then can an injunction which is an ancillary relief, be ordered, to protect the established right. Lawal v. Adeniyi (1997) 3 NWLR (Pt. 494) 457, 464 A – B; Yalaju Amaye v. A.R.E.C. Ltd (1990) 4 NWLR (Pt 45) 422, 451 – 452 and Udo v. I.T.C.M.R.C (2010) All FWLR (Pt. 507) 88 cited.
It was canvassed for the appellant that as exhibits 1, 2 and 3 can not vest title in the respondent which was why the learned trial Judge declined to grant the declaration for Certificate of Occupancy, respondent did not establish any right or equity to be protected by the perpetual injunction.
It was further canvassed for the appellant that exhibit 3 which is the root of the origin of the title claimed by the respondent is not the same as the land contained in exhibit I which fundamentally goes to the root of the case tally of Tsanu Kura (Anguwan Pama). That while exhibit 1 teller of land at Madaki close Unguwan Pama exhibit 3 that the said exhibit 3, though PW3 said he verified the transaction, he also said that his father, the then Sarki, did not sign the exhibit 3 issued in 1982, yet inspite of all these, the learned trial Judge granted a perpetual injunction in favour of the respondent.
Learned counsel further pointed that appellant was entitled to the injunction since exhibit D2 was stamped, signed and dated by the Sarki Anguwan Pama Ibrahim the father of PW3, and that PW3 cannot be seen to be right when he said he verified the sale between respondent and late Obijiofor before confirming the state of the plot to plaintiff/respondent when it was his father, or himself who signed and stamped exhibit D2.
Counsel contended that the learned trial Judge was wrong to have held that one is not sure whether the land in exhibit D2 was the same with the one in exhibit I, and that if there is such a doubt created in the mind of the trial Judge he was bound by law to have visited the land in dispute. To resolve the conflicting evidence Shekse v. Plankshak (2008) 15 NWLR (Pt 1109) 105, 117 – 118 E – A Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505 and Okpala v. Okoli (2011) 1 NWLR (Pt. 1229) 563, 579 E – F were cited in support.
In furtherance of his submission, learned appellant’s counsel contended that only a bonafide purchaser of a legal estate for value without notice can take priority over some one who had acquired a prior equitable interest over the same property. Ohiaeri vs. Yusuf (2009) 6 NWLR (Pt 1137) 207 paras B – H relied upon. That the person who purportedly acquired the plot of land have bad or defective title, nothing was passed to the respondent Nemo Dat Quo Non Habet.
In response, learned respondent’s counsel relying on Sky Bank Plc & Another v. Chief Moses Bolanle Akinpelu (2010) 3 SCNJ 192 at 209, submitted that trespass accrues only to a person in possession and that the respondent gave uncontroverted credible evidence of possession to support his claim for equitable interest while the appellant’s evidence in support of his claim of title was not credible. It is contended that the evidence offered by the respondent was superior to that of the appellant.
That civil suits being decided on preponderance of evidence, the respondent unlike the appellant, duly discharged the burden placed upon him to entitle him, a purchaser of land who had paid money and taken possession by virtue of a registerable instrument though not registered, to acquire an equitable interest which is as good as a legal estate. Case of Agboola v. UBA (supra).
The main issue for determination is whether the respondent adduced the required evidence before the lower court to entitle him, and not the appellant, to the perpetual injunction granted in his favour. In other words, whether the respondent, proved a superior right or interest on the land then the appellant.
The respondent as the plaintiff before the lower court had the duty to prove what he claimed in his pleadings. The duty rested squarely on the respondent to adduce credible and cogent evidence in support of his pleadings to entitle him to the reliefs sought from the court. The respondent as plaintiff must succeed only on the strength of his evidence and not on the weakness of the appellant’s case. See Gbadamosi v. Daro (2007) 3 NWLR (Pt. 1021) 282, Onissaodu v. Elewuju (2006) 13 NWLR (Pt 998) 517.
This is because the burden stands unequivocally firm on the shoulders of the plaintiff and does not for a second shift to the defendant until the plaintiff proves what he claim, then the burden would shift to the defendant to lead contrary evidence to dislodge the plaintiff’s evidence.
This is why the onus on the plaintiff has been described as constant as the rising of the sun from the East and its setting from the West everyday.
See Nwabuoku v. Onwordi (2006) 5 S.C (Pt. 111) 103.
This burden is however discharged on the balance of probabilities when the evidence adduced by the plaintiff outweighs that adduced by the defendant or preponderates and tilts the scale in favour of the plaintiff, the plaintiff would be said to have discharged the burden. See Odofin v. Mogaji (1978) 4 SC 91.
To succeed in proving his entitlement to the grant of perpetual injunction, the respondent must prove on the balance of probabilities that he did not only make payment for the land in dispute but also that he was in possession of same. He must also trace his interest in the land to the original title holder (owner).
In support of his case, the respondent presented before the lower court, four witnesses in addition to the six exhibits tendered.
The question of the propriety or otherwise of admitting exhibits 1, 2, 3 and D1 & D2 has already been resolved in issue No. 1 in the affirmative, to the effect that they were properly admitted for the purpose for which they were admitted by the learned trial Judge.
In addition to those exhibits are the ipse dixit evidence of PWs 1, 2, 3 & 4. The amended deposition of PW4 contained at page 110 of the recorded is that PW4 (Mr. E.O. Ijalana) bought two plot (sic) of land (unnumbered) at a place later known as Madaki Close, Sabon Tasha Kaduna from one Mrs C.M. Ojungbede for the sum of N6,000,000 in 1982.
That sometimes in 2003 he sold the land measuring 100ft x 50ft to late Obijiofor. However, before selling the land to the late Obijiofor in 2003, the 1st defendant (now appellant) claimed ownership of the land.
The Sarki Angwa Pama confirmed the ownership of the land to PW4 and thereafter, the appellant disappeared. (Paras 3 – 5 of PW4’s written statement on oath at page 110 of the record).
In his adopted amended deposition on oath the respondent deposed that on 9/8/2006, he bought an un-numbered plot of land measuring 100ft x 50ft situated at Madaki Close, Angwar Pama, Sabon Tasha Kaduna from one late Obijiofor after he had made inquires about the land up to the District Head. They executed a deed of assignment (exhibit 1). The late Obijiofor handed over to the respondent a copy of an agreement showing that E.O. Ijalana (PW4) bought the property from Mrs C.M Ojungbede the original owner in 1982.
That as there was already a short fence development on the land made by the late Obijiofor, respondent indeliberately took steps to secure the property.
That both the Sarki Anguwan Pama and the District Head of Sabon Tasha confirmed to him that late Obijiofor bought the property. The District Head also wrote a letter to the Chairman of Chikun Local Government in Hausa language for the issuance of a Certificate of Occupancy in respect of the land in the name of the respondent. The letter was translated into English language. Both the Hausa and English versions were admitted as Exhibits 5 & 6 respectively.
The respondent went to the land to commence development but the appellant stopped him and even brought a police officer from the police Headquarters who stopped the respondent from continuing the development. Respondent contacted the Obijiofor who in turn contacted Ijalana. Ijalana told the respondent that when in 2003 the appellant disputed his (Ijalana’s) ownership of the land, the dispute was settled in his favour by the Sarki Anguwan Pama and the appellant disappeared from the land. Respondent resumed development on the land only to be confronted again by the appellant. PW3, the District Head of Matari Sabon Tasha, Kaduna and the son to the late Sarki Anguwan Pama, in his written statement on oath testified that as at 2003 his late father was the Sarki of Anguwan Pama Sabon Tash, Kaduna. He worked with his father. During that period his late father sent him to confirm the subject matter of the suit, that is, the land in dispute, when the appellant disputed the ownership of PW4, E.O. Ijalana. That the appellant PW4 and Mrs Ojungbede (the original owner) all came to him.
Also in 2007, late Obijiofor who sold the land to the respondent together with PW4 (Ijalana who sold same to Obijiofor) and the respondent all came to him (PW3) and showed him the sale agreement signed by his late father, the Sarki Anguwan Pama, Sabon Tasha between Ijalana and Obijiofor. PW3 then confirmed the sale of the plot to the respondent. He testified further that he has never known the appellant as the owner of the plot and right from the time that his father was the Sarki Anguwa Pama till date.
PW3 also verified the transaction between the respondent and the late Josiah Obijiofor over the subject matter right from his late father, before he confirmed the sale of the land by late Obijiofor to the respondent.
The learned trial Judge at page 161 of the record held that:
“There is nothing in the deposition filed and adopted and the testimonies of PW to suggest that the plaintiff’s evidence is unreliable or any of the witness is untruthful. For the defendant to challenge the integrity of PW3 he must have a strong and cogent reason to ground the challenge…”
The above finding by the learned trial Judge has been challenged by the appellant. It is the contention of the appellant’s counsel that the evidence of PW3 can not be credible when he stated at paragraph 7 of his statement on oath that he verified the transaction between the respondent and late Obijiofor over the subject matter before confirming the sale of the land to the respondent by Obijiofor. This according to the counsel is because, despite the fact that the father of PW3, was the Sarki of Angwan Pama, Sabon Tasha, in 2003. PW3 in cross-examination stated that exhibit 3 which was made in 1982 and the root of title was not signed by his father. Conversely, as contended for the appellant, exhibit D2 was stamped, dated and signed by the Sarki Augwan Pama Ibrahim S. Yarima the father of PW3 when he was the Sarki and that PW3 could not be right to say that he verified the said sale from his father when it was his late father who signed exhibit D2, between Muhammed Malumfashi and the appellant. Counsel submitted further that assuming without conceding that exhibit D2 was not signed by the late father of PW3, then it was PW3 himself who signed same which would make him a hostile witness.
This argument by the learned appellant’s counsel, with respect to him, is without substance. This is because, the available evidence which the appellant admits and upon which learned counsel canvassed his argument is that the late father of PW3 who was the Sarki of Angwan pama, was the Sarki as at 2003 or 2001 as contended by the appellant.
There was no evidence made available to the lower court or appellant on the records to show that the said father of PW3 was the Sarki in 1982 when exhibit 3 was made. It is common sense therefore that having not been shown that PW3’s father was the Mai Angwa as at 1982 when exhibit 3 was made, his signature as such a Mai Angwa would not be expected to be appended on exhibit 3. Unless there was cogent and credible evidence adduced before the court that the father of PW3 was the Mai Angwa by 1982, and indeed there was no such evidence offered, the fact that his signature is not on exhibit 3 as PW3 answered in cross-examination only strengthen the evidence of PW3 rather than weakening it. It would in fact be absurd if exhibit 3 containing the signature of PW3’s father as the Mai Angwa in 1982 without any evidence or even all sign to the fact that he was such the Mai Angwa in 1982. The only stands to reason that the absence of the signature of the late Sarki Angwan Pama, (late father of PW3) on exhibit 3 can not be argued to support the contention that the evidence of PW3 is not credible.
The evidence of PW3 in chief which he confirmed in cross-examination is that his father signed exhibit 2 which was made between Ijalana and Obijiofor in 2003. His father could not have signed exhibit 3 made in 1982. Moreover, the appellant did not make any assertion that the signature of PW3’s father on exhibit 2 is the same as exhibit 3. Neither was any attempt made by the appellant to prove that the signature on exhibit 3 is that of the father of PW3.
The appellant’s counsel did not also contend and or prove that the signature on exhibit D2 contended to be made by PW3’s father is the same as that on exhibit 3.
I therefore discountenance that submission of the learned appellant’s counsel.
It was further contended for the appellant that the subject matter in exhibit 3 is not the same as in exhibits 1 and 2. In other words, appellant’s counsel contends that while the subject matter in exhibits 1 & 2 is a piece of land situate at Madaki Close Ungwan Pama, Sabon Tasha, the subject matter in exhibit 3 is a parcel of land situated at Tsauni Kura (Angwan Pama). This difference, it is contended is very fundamental to the respondent’s case as exhibit 3 is the root of title.
It is true as submitted by the learned appellant’s counsel that the subject matter as contained in exhibit 3 is a plot of land situate at Tsauni Kura (Angwan Pama) in contradiction to the subject matter in exhibits 1 & 2, stated to be situate at Madaki Close Ungwan Pama, Sabon Tasha.
However, the evidence of PW3 at paragraph 4 of his written statement on oath which he adopted as his evidence did provide the necessary clarification as to whether the parcel of land in exhibit 3 is the same with that in exhibits 1 & 2.
Paragraph 4 of the deposition of PW3 states:
“That in the same 2003 Mr. E.O. Ijalana, the 1st defendant and Mrs E.M. Ogungbade who sold the plot at a place later known as Madaki Close, Angwa Pama Sabon Tasha, Kaduna to Mr. E.O. Ijalana, came to me.”
(Underlining is mine for emphasis).
This paragraph 4 of the deposition of PW4 has adequately explained the reason for the difference in the nomenclature of the location of the land in exhibit 3 from the exhibits 1, 2. It is to be noted that while exhibits 1 & 2 were made in 2006 and 2003 respectively, exhibit 3 was made in 1982.
It is a known and accepted fact that the name of the location or by which a piece of land is described may and sometimes are bound to change from time to time even from one witness to the other. For instance, as per the pleadings before the court, the same Madaki Close Angwan Pama Sabon Tasha, is also referred to as “Light Avenue.” It is therefore no surprise that in 1982, the same Madaki Close or Light Avenue as now interchangeable used, was then known as Tsauni Kura, (Angwan Pama). Whether as Tsauni Kura, Madaki Close or Light Avenue, the common denominator is that they are said to be at Angwan Pama Sabon Tasha, Kaduna and are referable to the same land.
It was this same land in exhibit 3 which PW3 testified was sold to Obijiofor and later to the respondent.
It is not the name by which the land in dispute is called, that matters, what matters is that the various names by which it is called or described refer to one and the same piece of land. See Awoyoola v. Aro (2006) All FWLR (pt. 308) 1319 at 1332 – 1333 G – H, wherein the several other Supreme Court cases, Maberi v. Alade (1987) 4 SC 184, were referred to. I therefore hold that the land in exhibit 3 is the same as in exhibit 1 & 2.
The grounds upon which the evidence of PW3 has been attached, I find, are contenable.
I also find nothing in the cross-examination of PW3 that weakens his evidence, nor was his evidence shaken, as to ground a reason not to believe his evidence.
It was also contended that plaintiff witness 3 acted in bad faith when he confirmed the land for the respondent, and that the appellant’s vendor was not called. It is shown however in evidence that the said Mohammed had died. How can a dead person be invited on earth after death? In any case, there is no evidence that he acted in bad faith.
The learned appellant’s counsel has therefore not been able to impunge the credibility of PW3. There is therefore no basis to disbelieve the evidence of PW3.
The evidence of PW4 (Ezekiel Olusola Ijalana that he bought the land in exhibit 3 from Mrs Ogungbede in 1982 was not challenged in cross-examination. Rather, PW4 mentioned in cross-examination that the Sarki orally confirmed the ownership of the land in his favour (PW4). Infact the evidence of PW4 in synergy with that of PW3 apart exhibit 3 that PW4, E.O. Ijalana bought the land in dispute from Mrs C.M. Ogungbede in the year 1982. Exhibits 3, 2 & 4 show that money exchanged hands from Ijalana to Mrs Ogungbede, from Obijiofor to Ijelana and from the respondent to late Obijiofor.
The respondent also deposed in paragraph 6 of his deposition that when he bought the land from late Obijiofor, he took steps to properly secure the property as there was already some development on the land by Obijiofor of a short fence at the four corners of the plot. That after being challenged by the appellant, the land was confirmed for late Obijiofor and the appellant disappeared.
The evidence that late Obijiofor had effected development on the land before selling same to the respondent was not challenged. The respondent also commenced development on the land, albert, was challenged by the appellant before the right of the late Obijiofor in the land was confirmed by the late Sarki.
The evidence of PWs 3, 4, 2 & 1 which the learned trial Judge believed show that PW4 bought the disputed land in 1982 from the original title owner PW3 C.M. Ogungbede, the root through which the respondent bought the land in 2006 upon which Obijiofor had effected some development before selling same to the respondent and that the respondent also commenced development on the land before he was confronted by the appellant.
Surely, by their unchallenged evidence, late Obijiofor was in possession of the land which possession was contended by the respondent thereon, before being challenged by the appellant.
Although the word possession, has a wide and sometimes vague and ambiguous impart, there is no doubt that possession of land can either be de-factor or de-jure possession. Effective, physical or manual control or occupation of land, amounts to de-facto possession, while the possession animo possidendi with that amount of occupation, control or the right to occupy at will which is sufficient exclude other persons from entering is usually referred to as the de-jure possession. The de-jure or the legal possession, also includes constructive possession. See Buraimoh v. Bamgbose (1989) 6 SC (pt. 1) 1 at 12.
As to what constitutes sufficient act of possession, it is a question of fact to be proved in each case. The mere act of erecting survey pillars on the land has been held to constitute an efficient act of possession. See Ayuba v. Salaum (1989) 3 NWLR (Pt. 109) 292, Ladipo v. Ajani (1997) NWLR (Pt 517) 356, 362.
No doubt, the act of constructing a short fence by Obijiofor constitutes possession which possession was also continued by the respondent when he also commenced development on the land. Indeed in law, possession of a predecessor in title is described to be continued by his successor. See Ladipo v. Ajani (supra).
Thus, the evidence adduced for the respondent show that the root of title through whom he bought the land in dispute originated in 1982. That he bought the land and paid for same from a person who also bought from the original title owner. Exhibit I, is evidence of such payment that the transaction took place and that money exchanged hands between the parties. See Agboola v. UBA (supra),
By evidence also and by operation of the law, the respondent was in possession of the land, the respondent was in possession of the land. Except the appellant proved a better title or interest in the disputed land more than that of the respondent, the respondent would be entitled to equitable remedy of injunction against the appellant. See Cobham v. Duke (2004) 2 NWLR (Pt. 856) 150.
It thus means that the burden was shifted to the appellant to prove a better interest in the land.
It was contended for the appellant that the trial Judge who stated in his judgment that at page 163 “one is not sure if the 1st defendant is claiming the same land in view of the depositions filed and the evidence adduced in his favour…”, ought either upon application or suo motu to have visited the locus in quo to clear the doubt as to the accuracy of the conflicting pieces of evidence. Counsel called in aid the case of Shekse v. Plankshak (2008) 15 NWLR (pt. 1109) 105 at 117 – 118 Paras E-A.
Going by the appellant’s pleadings, particularly paragraph 2(a) of the statement of defence, it is far from being clear whether the parcels of land which appellant claimed therein he bought are the same with the land in the respondent’s exhibits 1, 2 and 3. This is because no such mention is made to the land referred to, for whereas the land claimed by the respondent measures 100ft x 50ft. The appellant’s pleads two parcels of land allegedly bought from two different persons, one measuring 50ft x 50ft and there other measuring 100ft x 50ft.
Throughout the pleadings no nexus was shown between the land claimed by the respondent and any one or both of the two parcels of land claimed in paragraph 2(a) of the statement of defence except by averring that paragraph 2(a) was an answer to the respondent’s statement of claim, paragraph 2 thereof.
However at paragraph 3 of his deposition, appellant deposed that the land he bought on 22/2/2001 at N50,000 from one Mohammed Malumfashi “which is now subject of dispute.”
While a trial court is enjoined to visit the locus in quo where such visit will clear a doubt as to the accuracy of one piece of evidence in conflict with another, for the purpose of resolving the conflict, the law places on the parties to prove with a degree of certainty the identity of the land they claim. See Ezekwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227.
The appellant had the duty of not only pleading with accuracy, the precise parcel of land he claimed in his counter-claim, but also the duty of proving the identity of same with the same degree of precision exactness and accuracy. See Nwokorobia v. Nwosu (2009) 10 NWLR (Pt. 1150) 553.
Where a party fails to do so, the trial court would not be required to visit the locus in quo in order to assist the party to ascertain the identity of the land he claims. To require the court to visit a locus in quo to assist a party in proving the identity of the land he claims, will obviously be outside the purview of resolving conflicting evidence. I therefore hold that the learned trial Judge was neither necessarily required to visit the locus in the circumstance of this instant case, nor does his favour to undertake the visit occasion a miscarriage of justice.
I now proceed to consider whether from the available evidence, the appellant proved a better interest in the land than the respondent. Like the respondent, the appellant also tendered the agreement of transfer and sale of land/ownership between one Mohammed Malumfashi and himself, as exhibit D2. Of course, as the trial Judge correctly stated, exhibits D1, D2 and D3 do not relate or pertain to this case. Exhibit D1, is the sale agreement between the appellant and one Danlami Sule in respect of a piece of land measuring 50ft x 50ft (different from the land in question).
Exhibits D3, D4 and D5 are petition written to the Commissioner of Police by the appellant against Inspector Timothy and Sylvanus Elam, a reminder to the petition, and the police investigation report on the alleged unlawful arrest and detention of the appellant by the said Inspector Timothy, respectively.
All the disputes between appellant and these people would avail the appellant only if he proved a better interest in the land than the respondent.
The appellant did not prove what right of possession he has exercised on the land other than engaging in repelling other persons giving the land, which always on its own vest any right on him.
Now, exhibit D2, was made on 22/2/2001 between one Mohammed Malumfashi and the appellant in respect of a piece of land at Madaki Close Anguwan Pama, which appellant testified he bought in a transaction which was witnessed by and took place at the palace of the Sarki.
Exhibit D2 also bears the stand of the Sarki Angwan Pama and the signature of the Sarki. On its face, to disclose a sale of land transaction for which money exchanged hands. Exhibit D2, therefore on its face is proof that the appellant transacted the sale of land business with the vendor and he paid money as the purchaser. However, as already resolved, exhibit D2 cannot be relied upon to found title in favour of the appellant, as sought in his relief.
The question now is between exhibits 3 and D2, which one is first in time? Obviously, exhibit 3 which was made in 1982 and which is the root through which the respondent acquired equitable interest is earlier in line than exhibit D2 made in 2001 upon which the appellant’s claim is based.
By the principle that the 1st equity in time takes precedence, as expressed in the latin maxim “qui prior est tempore portior est jure”, the first in time between two equities, takes precedence and has the stronger right. See Amanda v. Ajani (1989) 3 NWLR (Pt. 111) 511, Olukoya vs. Ashiru (2006) All FWLR (Pt. 322) 1479 at 1500 E – F.
It also follows, by the latin maxim of “NEMO DAT QUOD NON HABET” that there was nothing that was passed to the appellant as at the time he bought the land in 2001. See Olukoya v. Ashiru (supra), Sanyaolu v. Coker (1983) 1 SCNLR 168.
The law is settled that a person who is not in possession has no right to claim for trespass. Trespass to land is actionable at the suit of the person in possession of the land. The person can sue for trespass even if he is neither the owner nor a privy of the owner. This is so since exclusive possession of the land gives the one in such possession the right to retain it and to undisturbed enjoyment of it against all wrong doers except a person who could establish a better title. Per Fabiyi JSC at page 209 in Skye Bank & Anor vs. Chief Moses & Anor (2010) 3 SCNJ 792 at 209.
It is also settled law that once a party establishes his legal right in law or in equity as in this case, the respondent having established his equitable right, an injunction would be granted to protect his established right. Lawal v. Adeniyi (supra). Such a person, like the respondent can maintain the injunction against every person except a person who proves a better title or interest than him. See Udo v. ITCMRC (supra).
In the instant case, the appellant having not proved a better interest in the land than the respondent whose equitable interest is first in time in possession of the land, was entitled to the perpetual injunction granted by the lower court. The trial Judge was therefore right to have granted the perpetual injunction in favour of the respondent against the appellant. On the whole therefore, this appeal lacks merit and is accordingly discharged.
There shall be no order to cost.
UWANI M. ABBA AJI, J.C.A: I have read in draft, the lead judgment of my learned bother Amina A. Wambai, JCA just delivered.
My learned brother has succinctly discussed and considered all the pertinent issues and I entirely agree with the reasoning and conclusion.
I just want to chip in a little on the 1st issue formulated by my learned brother, whether the Respondent’s Exhibits 1, 2 and 3 and the Appellant’s Exhibits D1 and D2 are registrable instruments and the trial court was right to have admitted them in evidence. In the instant case, Section 15, Kaduna State Land Registration Law Cap 82 provides that no instrument shall be pleaded or given in evidence in any court as affecting any land issue unless the same shall have been registered in the proper office as specified. In other words, the Section simply states that no instrument shall be pleaded or given in evidence in any court that affects any land issue unless the same shall have been registered. Section 2 of the law defines instrument as a document affecting land whereby one party called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee, any right or title to, or interest in land, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.
A careful perusal of Exhibits 1, 2 and 3 and D1 and D2 clearly shows the Exhibits were not registered.
What then is the effect of a registrable but not registered instrument? The law is settled that an instrument which is registrable but has not been registered cannot be pleaded or given in evidence. See Ogbimi v. Nigo Const. Co. Ltd. (2006) 9 NWLR (Pt.786) 474 at 493 – 494, However in Agboola v. UBA PLC (2011) 3 SCNJ 208 at 239 Per Mukhtar, JSC, (as he then was), held that an unregistered registrable instrument may be admissible to prove the fact that money exchanged hands between the parties and/or to establish the transaction between the vendor and the Purchaser. Such unregistered registrable instrument is admissible as an acknowledgment of payment of money.
Consequently Exhibit 1, 2 and 3 of the Respondent and D1 and D2 of the Appellant were validly admitted in evidence by the lower court.
It is for this reason and the more detailed reasons in the judgment of my learned brother that I also do not find merit in this appeal. It is hereby dismissed. I endorse the consequential order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A: I have had the privilege of reading the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I abide with the conclusions reached therein. I have nothing more to add.
Appearances
VICTOR YUSUF MOK ESQ. For Appellant
AND
C.T. AGU ESQ. For Respondent
