ABIMBOLU AFOLALU v. MR. OLUMAKINDE
(2019)LCN/12945(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/AK/36/2018
RATIO
ADMISSION: WHETHER ANY EVIDENCE NEEDS TO BE LEAD IN SUPPORT OF ADMITTED FACTS
Clearly this is an admission and the claimant need not lead any evidence in support of admitted facts. See the apex Court cases of OFFOR & ANOR V STATE (2012) 18 NWLR, PT 1333, 421 AND BAALO V FRN (2016) LPELR 40500. PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVALUATION OF EVIDENCE: WHAT IT ENTAILS
It is long settled that evaluation of evidence involves the assessment of evidence so as to give value or quality to it and a reasoned belief of one of the contending parties and a disbelief of the other. See the decision of this Court in the case of ENTERPRISE BANK LTD V MEENS NIG LTD (2014) LPELR 23503 as well as the Supreme Court cases of BUHARI V INEC & ORS (2008) 19 NWLR, PT 1120, 246 AND ANEKWE & ANOR V NWEKE (2014) 9 NWLR, PT 1412.PER PATRICIA AJUMA MAHMOUD, J.C.A.
DUTY OF THE TRIAL COURT
See the locus classicus in the case of OLADEHIN V CONTINENTAL TEXTILE MILLS LTD (1978) LPELR-2543 where Obaseki, JSC as he then was held as follows:-… it is the duty of a trial judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him. He cannot abandon that duty by taking refuge in the clouds of I believe and I do not believe without really evaluating the evidence of vital witnesses. If he abandons this duty, the use of the expressions I believe and I do not believe will not estop the appeal Court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions. (See ALHAJI AKIBU V JOSEPH OPALEYE (1974) 11 SC 189 AT 803).
WORDS NOT SUPPORTED BY EVIDENCE IS USELESS, BANAL AND USELESS
See also the case of MENDRICK V THE STATE (2018) LPELR-45549, where this Court held that the mere use of the words I believe but not supported by the evidence on the printed records is at best useless, banal and empty in law and thus without any significance. See also the cases of CONTINENTAL TEXTILE MILLS LTD (1978) LPELR-2543 and NWOKE & ORS V OKERE & ORS (1994) 5 NWLR, PT 343, 159.PER PATRICIA AJUMA MAHMOUD, J.C.A.
LAND LAW: 5 WAYS TO PROVE TITLE TO LAND
The established law is that ownership of land shall be proved by one of five ways:
1. Traditional evidence;
2. Documents of title;
3. Acts of possession spanning over a period of years;
4. Acts of ownership exercised over the land over a period of time and
5. Proof of possession of adjacent or connected land.
See the case of OPOTO & ORS V ANAUN & ORS (2015) LPELR-24734.PER PATRICIA AJUMA MAHMOUD, J.C.A.
WHETHER A CERTIFICATE OF OCCUPANCY WILL GIVE YOU A BETTER TITLE
I am conscious of the position of the law that the possession of a Certificate of Occupancy even though prima facie evidence of title, will give way to a better title. See ILONA V IDAKWO (SUPRA) and IBRAHIM V MOHAMMED (2003) 6 NWLR PT. 817, 615.PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
ABIMBOLU AFOLALU – Appellant(s)
AND
MR. OLUMAKINDE – Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of HON. JUSTICE S. A. Bola of the Ondo State High Court sitting at Akure, delivered on 12th day of October, 2017 which dismissed the Appellants claim in its entirety. The Appellant as claimant in the Court below by a Writ of Summons dated and filed on 14/11/2014 commenced the suit that culminated in this appeal, and sought the following reliefs:
(a) A declaration that the claimant is the person lawfully entitled to the grant of a certificate of statutory right of occupancy in respect of the piece or parcel of land lying, being and known as Block I and set back to Imojo Stream at Opa Community layout along Akure/Ondo Road, Akure measuring approximately 2.339 Hectares and subject of certificate of statutory right of occupancy dated 21st day of June, 2000.
(b) AN ORDER of perpetual injunction restraining the defendant either by himself, servants, privies, agents, assigning (sic) and any other person claiming through him from further trespassing or carrying on any farming or any activity whatsoever on the claimants
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land lying, being and known as Block I and set back to Imojo Stream at Opa Community Layout along Akure/Ondo Road, Akure measuring approximately 2.339 Hectares and subject of certificate of statutory right of occupancy dated 21st day of June, 2000.
(c) N5, 000,000 (Five Million Naira) general damages for the destruction caused and trespassed committed by the defendant on the claimants land lying being and known as Block I and set back to Imojo Stream at Opa Community Layout along Akure/Ondo Road, Akure measuring approximately 2.339 Hectares and subject of certificate of statutory right of occupancy dated 21st day of June, 2000.
The case of the Appellant/Claimant was that he purchased the land in dispute sometime in 1999, from Opa Community and that same was approximately 2.339 hectares. That he immediately took possession, surveyed the land and planted palm trees, teak trees etc. And that he dug fish ponds on part of the land and planted cassava, okro etc on the set back area of the land. He stated that he has been enjoying undisturbed possession of the land until 2000, when he obtained a Certificate of Occupancy registered as 23 at
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page 23 in Volume 712 in respect of the land. He stated that the Respondent trespassed on his land and dug 7 fish ponds on same which culminated in this suit.
The Respondent defended this action at the trial Court vide an amended statement of defence dated the 24/4/2017 and filed on the 28/4/2017. The Respondents/Defendants case is that the land in dispute was purchased by Beatron Bonori Agricultural Machines Company Limited from the Dupe Aina family of Ugboji on the 10/10/1976 and that the company has been in undisturbed possession of same until October, 2014 when the Appellant trespassed on the land. He produced a Purchase Agreement dated the 10/10/1976 between the company and Dupe Aina family. The Respondent stated that he is not a trespasser and that where he dug his fish ponds and carried on fish farming for many years was on the land of Beatron Bonori Agricultural Machines Company Limited, who put him in possession.
In proof of his case, the Appellant called two witnesses: CW1 and CW2 and tendered Exhibits A-A1. The Respondent on the other hand testified for himself and did not call any other witness. He tendered one
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document, admitted and marked as Exhibit B.
At the conclusion of trial, the learned trial judge in a judgment delivered on the 12/10/2017 dismissed the Appellants/Claimants claim.
Dissatisfied with the said judgement, the Appellant appealed to this Court by a notice of appeal dated the 21/12/2017 and filed on 22/12/2017. It contained five (5) grounds of appeal as follows:
GROUND 1
The learned trial Judge erred in law when he held at page 7 of his judgment that:.. the plan annexed to the certificate of occupancy, Exhibit A does not assist the Court in this matter to show whether the setback is contiguous to the Claimants land or that of the Defendant. He who asserts must prove. It is pertinent against the backdrop of the denial by the Defendant of the Claimants claim that he dug fishpond on the Claimants setback. It is observed that the survey attached to the Certificate of Occupancy, Exhibit A-A1 does not show Akure/Ondo road. It is therefore difficult to identify the setback between the stream and Akure/Ondo road which the claimant claimed was his
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setback which the defendant was alleged to have trespassed on.
and went ahead to dismiss the claims of the Claimant.
PARTICULARS OF ERROR
On the learned trial Judges recognition that the Claimants Certificate of Occupancy, Exhibit A-A1 did not assist him to know whether the setback is contiguous to the Claimants land or that of the Defendant, the learned trial Judge ought to have non-suited the Claimant.
GROUND 2
The learned trial Judge erred when he held at page 7 of his judgment that:
Flowing from this background, this Court finds it difficult to believe the evidence of the Claimants witnesses that the defendant dug fishpond on his setback. I also disbelieve the evidence of the Claimants witnesses that the defendant went on his land to uproot his Cassava or Okra crops and thereby trespassed on the land. I therefore find as of fact that the Defendant did not embark on the digging of the fishponds on the land of the Claimant nor the setback to his land”
and went ahead to dismiss the Claimants claims.
PARTICULARS OF ERROR:
i) There was no basis for the
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learned trial Judges disbelief when the learned trial Judge himself had admitted technical problems relating to the identity of the land arising from absence of a composite plan that would have clearly marked out the claimant 2.339 hectares and appurtenant setback in dispute.
ii) The learned trial Judge had earlier held in page 6 of his Judgment (in second to the last sentence) that: In a situation of this nature, the Claimant ought to have filed a composite plan.
iii) Absence of composite plan which would have formed the basis of the learned trial Judges belief or disbelief is fatal to the evaluation carried out by the learned trial Judge, his findings and decision in the judgment appealed against.
GROUND 3
The learned trial Judge erred in law and came to a wrong decision when he held:
No evidence was adduced by CW2 as to the price paid for the land. It was the CW1 evidence that after the purchase of the land, the claimant took possession. Who led him into possession? In the presence of whom was he let into possession? The answers to these questions are
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not obtained in the evidence of the Claimants witnesses. The elements of a valid sale of land under native law and customs are absent in the Claimants evidence The CW2 testified that the sale was in his presence; but was not concluded in his presence? Did he witness any handing over of the land to the Claimant in his presence? The evidence of CW2 did not establish that the Claimant was let into possession by the vendor. Needless to say, no witness was mentioned or named as having witnessed the handing over or the Claimants being let into possession of the land, against this backdrop, this Court holds that there was no valid sale of land to the Claimant under native law and custom. The corollary of this is that no valid title was conferred on the Claimant.
PARTICULARS OF ERROR:
i. The gravamen of the claim which permeates the entire evidence of the parties and even the summing up of the learned trial Judge is the entitlement to an area of land which the Claimant claims to be appurtenant to his 2.339 hectares parcel of land as setback.
ii. The defendant at the trial pleaded and led evidence to the fact that
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the said appurtenance (setback) belongs to a third party, Beatron Bonori Agriculture Machines Ltd which was not joined as a party and which was not called to testify.
iii. In effect, the learned trial Judge allowed the defendants just tertii to defeat the Claimants claim under a valid Certificate of Occupancy.
iv. The case was not a contest between two parties as to who had better title particularly in relation to the parcel of land covered by Exhibits A-A1 i.e. the Claimants Certificate of Occupancy.
GROUND 4
The learned trial Judge erred and came to a tragic and unfortunate wrong conclusion when he held at page 9 of his judgment that:
In the instant case, the claimant has failed to establish his case by preponderance of evidence. He has failed to discharge the burden of proof placed upon him by the Evidence Act, 2011. He has failed to establish his title to the land in dispute. Not even the Certificate of Occupancy obtained in 2000 in respect of the land is of any moment in this case.
PARTICULARS OF ERROR:
i. The learned trial Judge after making the verdict quoted above went ahead to
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state that:
It needs to be emphasized and established that the failure of the claimant in this land dispute does not automatically mean that the land in dispute belongs to the defendant.
ii. The learned trial Judge allowed the defendant to set up jus tertii to defeat an otherwise legitimate claim of the claimant to the 2.339 hectares covered by Exhibits A-A1.
iii. The learned trial Judges decision in this respect is bereft of specific legal definitiveness that defines judicial outcome.
GROUND 5
The learned trial Judge erred in law to have made definite adverse pronouncement on the Claimans title to the land covered by Exhibit A-A1 when neither the Opa Community head and principal members on the one hand and Beatron Bonori Agricultural Machines Company Ltd on the other hand were made parties to the action. The learned trial Judge ought to have non-suited the Claimant.
At the hearing of this appeal on the 24/1/2019 Mr. R. P. Olatubora, of Counsel for the appellant adopted the Appellants brief dated the 29/3/2018 and filed on the 4/4/2018 as his legal arguments in support of this appeal. In it,
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Counsel raised four (4) issues for determination by this court as follows:
(i) Having regard to the facts and evidence adduced at the hearing of this action, whether the trial Court ought not to have non-suited the Claimant, when the trial judge came to the conclusion that Exhibit A-A1, (Claimants Certificate of Occupancy) did not assist him in knowing whether the setback is contiguous to the Claimants land or that of the Defendant. (Ground 1).
(ii) Having regard to the facts and evidence adduced at the hearing of this action, whether there was a basis for the trial judges disbelief of the Claimants witnesses, when there was an absence of a composite plan, which would have formed the basis for the trial judge belief or disbelief when the trial Judge had admitted that there was technical difficulty arising from absence of composite plan. (Ground 2).
(iii) Having regard to the facts of this, whether the trial judge did not err, when he questioned the legitimacy or otherwise of the Claimants title in relation to the parcel of land covered by Exhibit A-A1, i.e. Claimants
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Certificate of Occupancy and came to a conclusion that there was no valid sale of land to the claimant under native law and custom, when the gravamen of the Claimants claim before the trial judge was the ownership of a setback to the Claimants land covered by Exhibit A-A1 (Ground 3).
(iv) Having regard to the facts of this case, whether the trial judge was right to have allowed the defence of jus tertii put up by the defendant to defeat the Claimants claim under a valid Certificate of Occupancy. (Ground 4).
On issue 1, learned counsel for the Appellant reviewed the trial Courts findings of fact as to the insufficiency of evidence adduced by the Appellant to show whether the setback is contiguous to the Appellants land or that of the Respondent, at pages 86 and 87 of the Record of Appeal, to argue that the proper order should have been one of non-suit and not dismissal of the suit which the Court made. He relied on the cases of AFRICAN CONTINENTAL BANK LTD V YESUFU (1980) 1-2 SC 49; ALHAJI INUWA DANTUMBU V CHIEF PETER ADENE & 4 ORS (1987) 4 NWLR (PT 65) 314, to contend that in the light of these findings, the
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proper order to make is one of non-suit.
On issue 2, Mr. Olatubora, contended that it was grossly wrong for the learned trial Judge to have admitted technical problems in determining the land dispute because the Appellant failed to file a composite survey plan to establish with certainty the identity of the land he claims in order to succeed, but still went ahead to hold that he disbelieved the evidence of the Appellants witnesses. He placed reliance on ADEKUNLE V AREMU (1998) 1 NWLR (PT 533) 203, to the effect that a Court is enjoined to properly and dispassionately consider all issues and the evidence adduced by the parties.
On issue 3, learned counsel submitted that it was wrong for the learned trial Judge, after acknowledging that the portion of land in dispute between the parties is the set back of the Appellants land, to go ahead and hold that the Appellant failed to lead evidence to establish that the land covered by Exhibits A-A1 was validly sold to him under native law and custom. He further submitted that the land covered by Exhibit A-A1 is not in dispute and that the Respondent admitted this fact under cross-examination at
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page 77 of the records.
On issue 4, Mr. Olatubora argued that the Respondent copiously pleaded and led evidence that the title to the land in dispute is vested in a third party, Beatron Bonori Agricultural Machines Limited but led no evidence to establish any agency relationship between him and the company. In effect, counsel argued, the Respondent only set up the defence of jus tertii simpliciter, which cannot defeat the title of the Appellant as evidenced by Exhibits A-A1. He placed reliance on the English case of NICHOLLS V ELY BECT SUGAR FACTORY (1931 2 CH. 84 as well as the cases of UGORJI V ONWU (1999) 3 NWLR, PT 178, 177 and ADELAKUN V ISEOGBEKUN (2003) 7 NWLR, PT 819, 295 AT 311, in support of this submission.
Mr. Niran Disu of counsel for the Respondent adopted their brief of argument dated the 29/8/2018 and filed on the 19/9/2018. In it, counsel formulated a lone issue for determination by the Court as follows:
Whether the trial Court was right in dismissing the Appellants case for failure to prove his case?
Arguing this lone issue, Mr. Disu pointed out that since the
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Appellants claim is for declaration of title, injunction and damages for trespass, such reliefs clearly puts his title to the land in dispute in issue and same can only be established by sufficient, credible, convincing and satisfactory evidence, which the Appellant has failed to provide. He argued that Exhibit A-A1 Certificate of Statutory Right of Occupancy, is not a conclusive proof of title to the land it covers since the law requires the holder to establish a valid root of title that originated from the customary owners of the property. He reproduced the evidence of CW1 and CW2 under cross examination at pages 69 and 70-71 respectively, to submit that the Appellant pleaded title by native law and custom but failed to prove ingredients of a valid sale of land under native law and custom, such as evidence of payment of purchase price, who witnessed the transaction and who led him into possession or the identity of the vendors. He called in aid the case of ATANDA V C. L. H KWARA STATE (2017) ALL FWLR, PT 902, 929 AT 933 in support of his position.
On the setback, counsel reproduced part of the evidence of CW1 and CW2 at pages 70-71
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respectively, to contend that the Appellant neither led evidence to show the setback between the Appellants land and Akure/Ondo road as averred in his pleading, nor did Exhibit A-A1 identify the said setback and the portion wherein the Respondent allegedly dug the 7 fish ponds. On the order of non-suit, counsel argued that since the Appellant had failed to establish his claim by credible evidence the proper order to make is one for dismissal of the suit and not non-suit. He further submitted that the statement made by the trial judge to the effect that the Appellant ought to have filed a composite plan is an obiter dictum which merely highlighted the Appellants failure to lead sufficient, credible and convincing evidence in proof of his case. On evaluation of evidence by the trial Court, counsel is of the view that the trial Court properly evaluated all pieces of evidence led by the parties and clearly made an informed decision of which to believe or disbelieve. Counsel adumbrated that when the Respondent testified that the muddy stream separates the claimants land from the defendants land, the
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evidence was meant to show that where the Respondent dug his fish pond belongs to him and not to the Appellant, and is not an admission that the Appellant has valid title over the land he claims. On the issue of jus tertii, counsel argued that same does not emanate from the trial Courts judgment and as such is incompetent and liable to be discountenanced. He called in aid the case of ABUBAKAR V NASAMU (2012) 17 NWLR, PT 407, 411 AT 415, to the effect that an appeal is a continuation of an original suit rather than an inception of a new action and must be a complaint against the valid decision of the Court. In any case, argued counsel, the Respondent did not set up the defence of jus tertii, since the Respondent clearly proved by evidence that he did not trespass on the Appellants land by digging fish ponds on same. Mr. Disu, further argued that the Respondent both pleaded and led evidence to show that the land belongs to Beatron Bonori Agricultural Machines Company Limited who put him into possession of the area he dug his fish ponds as shown by Exhibit B which he tendered. He submitted that this piece of
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evidence was not challenged at the trial. He urged that the appeal be dismissed with substantial costs.
Replying on points of law, learned counsel to the appellant, Mr. Olatubora, relied on the case ofNWANA V FCDA, (2004) 13 NWLR, PT 887, 123 AT 141, to define an obiter dictum as the judges passing remark which has nothing to do with live issues for determination in a matter. He then produced part of the trial Courts judgment at page 86, last paragraph to argue very strongly, that the trial judges statement that the Appellant ought to have filed a composite plan is the judges reasoning after he has examined Exhibit A-A1 tendered by the Appellant. He further submitted that the trial judge needed the composite plan showing the disputed area, which would have enabled him to make a more definite judicial decision in this matter. He reiterated that the proper order the trial judge should have made would have been an order of non-suit and not dismissal. On jus tertii, Mr. Olatubora submitted that when factual situations and applicable legal principles give rise to a particular legal result, the failure to use a
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particular legal maxim to characterize the situation will not defeat the action. He postulated that the principle of jus tertii was raised by the Appellant in his written address at the trial Court, precisely at paragraphs 4.4 to 4.9 thereof, contained on pages 61-63 of the records of appeal. Counsel is of the view that the defence of jus tertii was properly made an issue at the trial Court. He urged that this appeal be allowed.
The appellant raised four issues for determination while the respondent raised two. The issues raised are distilled from the grounds of appeal. Since the appellant filed the appeal and therefore the grounds it is in my view appropriate to consider this appeal on the four issues raised by the appellant. This is particularly so as the two issues raised by the respondent are easily subsumed in the appellants issues. If this is not the case any ancillary issue that is a fall out from the respondents issue will be determined. Should the trial Court have non suited the appellant as claimant rather than dismiss the suit as it did? Non suit is defined in
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the BLACKS LAW DICTIONARY, 8TH EDITION, P 1084 as a plaintiffs voluntary dismissal of a case or of a defendant without a decision on the merits. In the apex Court case of OKPALA V IBEME (1989) 2 NWLR, PT 102, 208 AT 224, Nnaemeka-Agu, JSC as he then was stated the position of the law on this issue thus:-
The overriding consideration at all times appears to be that considering the justice of the case of the parties, justice demands that the plaintiff should be given a chance to institute another action on the same issue and should not be shut out for good and that the defendant is not entitled to judgment. A non-suit is a final decision which decides that none of the parties has won, but preserves the plaintiffs right of another action on the same subject matter and the same issues.”
In the case of ODUOLA & ORS V COKER & ORS (1981) LPELR 2254, OBASEKI, JSC (as he then was) held that a non-suit is awarded when neither party is entitled to judgment under the High Court (Civil Procedure) Rules. See also OGUNREMI V DADA (1967) NMLR, 181. In other words, a non-suit becomes appropriate where
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there is no satisfactory evidence enabling the Court to give judgment to either of the parties. This to my mind appears to be the situation the Court found itself in the instant case. The finding of the trial Court at page 87 of the printed records was:-…. the plan annexed to the certificate of occupancy Exhibit A does not assist the Court in this matter to show whether the setback is contiguous to the claimants land or that of the defendant …. It is observed that the survey attached to the Certificate of Occupancy, Exhibit A, A1 does not show Akure/Ondo road. It is therefore difficult to identify the setback between the stream and Akure/Ondo road which the claimant claimed was his setback which the defendant was alleged to have trespassed on.
At page 86 of the records the learned trial judge also held:-
It is pertinent to state at this juncture that there is no portion specifically identified as the setback being claimed by the claimant. In a situation of this nature, the claimant ought to have filed a composite plan.
From the findings of the trial Court as stated in
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these quoted portions all the elements for making an order of non suit appear to be present in this suit. The appellant as claimant had given some evidence and proved his case up to some point but needed some facts to prove his case on balance of evidence which facts were not adduced. And the defendant was not entitled to judgment. The respondent submitted on this issue that the appellants case failed totally and there was no basis to justify an order of non suit. And that there was no application from the appellant or his legal practitioner for such an order.
The provisions of ORDER 34(1) Ondo State High Court (Civil Procedure) Rules are:-
Where satisfactory evidence is not given entitling the claimant or defendant to the judgment of the Court the judge may suo motu or on application non suit the claimant but the parties legal Practitioners shall have the right to make submissions about the propriety or otherwise of making such order.
An order for non-suit is not giving a claimant a second bite at the cherry as it were. It should also not be refused or denied where like in this case, some wrong will be done to the
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appellant. The appellant went to Court seeking a declaration of title. He led evidence in support of his claim against a defendant that he accused of being a trespasser on his land. The defendant did not seek any declaration of title and did not also prove his entitlement to be in possession of the said land. The respondent alleged that the third party, Beatron Bonori Agricultural Machines Co Ltd put him in possession. He never proved or led any evidence to show how he came into that possession and in what capacity. In other words Exhibit B is an irrelevant document as far as the respondents defence was concerned and was clearly inadmissible. The Court dismissed the plaintiffs claim. In my view, it is of no moment that the trial judge held that:
It need (sic) be emphasized and established that the failure of the claimant in this land dispute does not automatically mean that the land in dispute belongs to the defendant.
After all, the defendant never claimed the land but maintained that it belonged to some third party. While he tendered a document, Exhibit B which I have held as irrelevant to his defence and therefore
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inadmissible, he has failed to anchor any defence that makes him anything but a trespasser or at best a squatter. A certificate of occupancy which the appellant tendered is prima facie evidence of title. It will only give way in the face of a better title proved before the Court. The respondent never led any evidence to establish in what capacity he was in possession of the subject land; was he a tenant, an agent of the said Beatron Bonori Agricultural Machines Co., Ltd or perhaps only a squatter on the land? The respondent has to prove that he is in valid possession to stave off any claim for trespass. In my view Exhibit B is not adequate to rebut the presumption of regularity in Exhibit A-A1, the certificate of occupancy. This is because it is not stated in what capacity the respondent is connected to Exhibit B. Is he a tenant, agent or director of the company? For all we know the respondent could have gotten hold of the document in an unwholesome manner. This document cannot and should not without more be a defence to a claim for trespass and I so hold. To do otherwise will amount to a gross injustice to the appellant in my view and it is a wrongful to him.
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By implication, the defendant could continue to use the land without any legal challenge from the appellant or for all we know from anybody else if that portion is truly a set off for the appellants land. The justice of this case requires that I resolve this issue in favour of the appellant. I so do.
The second issue raised by the appellant is whether having regards to the facts and evidence adduced there was a basis for the trial judges disbelief of the claimants witnesses. At page 87 paragraph 5 of the records the learned trial judge found as follows:-
Flowing from this background, this Court finds it difficult to believe the evidence of the claimants witnesses that the defendant dug fish ponds on his setback. I also disbelieve the evidence of the claimants witnesses that the defendant went on his land to uproot his cassava and okro crops and thereby trespass on the land. I therefore find as of fact that the defendant did not embark on the digging of fish ponds on the land of the claimant nor the setback to his land.
The appellant in proof of his case called two witnesses and tendered one
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document, admitted and marked as Exhibit A. Oluwatoyin Aliu was the claimants first witness. Her witness statement which she adopted as her evidence in chief is contained at pages 33-34 of the printed records. Her testimony essentially is that the claimant, her brother lives in the UK. That he planted crops including cassava and okro on the setback to the farm land. That she had visited the farmland prior to this suit and discovered that someone had dug ponds on the land, particularly the setback. That she discovered that the crops planted on the land have been uprooted. That she reported this encroachment to her brother, the claimant. CW1s cross-examination is contained at pages 69 to 70. The evidence that ponds were dug on the land particularly the setback was never challenged in cross examination. Neither is the evidence that there was encroachment on the land. CW2 is Akinyemi Ojo. His testimony is contained on pages 30-31 of the records. Paragraphs 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 provide as follows:
4. The defendant is the trespasser that dug fishing pond on the claimants land subject matter of this
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suit.
8. We also planted Cassava and Okro on the set back area of the land which was harvested for several years by him.
9. At the purchase of the land, he was informed in my presence by the Opa Community that the part of the land between the Akure/Ondo Road and Imojo stream will be a set back because the water corporation pipe bringing water to Akure was laid there under.
10. He only planted cassava on the set back while he carried on serious farming activities on the other side of the stream.
11. The claimants possession of the land was never disturbed, challenged nor disputed by anybody whosoever.
12. The claimant surveyed the land and also obtained a Certificate of Statutory rights of Occupancy dated 21st day of June, 2000 and Registered as 23 at page 23 in volume 712 in the office at Akure in respect of the land.
13. The set back of the land was used for the cultivation of cassava for a number of years.
14. The claimant left Nigeria in the year 2010 but put some persons on the land to help him monitor same while I also visit the land regularly.
15. The defendant
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had now taken over apart of (sic) this land and especially the set back between the land and the Akure/Ondo main road where the defendant had dug 7 fish ponds.
16. The claimant was able to get defendant on phone who later sent an electronic mail to the claimant pleading that the claimant sells the entire land to him.
17. The claimant refused this offer and the defendant now changed tune and claimed that the land he occupies is free it is only the government that can eject him there from.
18. The part of this land trespassed on by the defendant is a setback, but it is only an owner of land that can enjoy or make use of a setback.
19. The digging of fish pond on the land has greatly altered the structure and character of the land and it will cost the claimant a substantial amount of money to restore the land back to its original form.
CW2s cross-examination is contained at pages 70-71 and 73. Again the evidence given by this witness remains unchallenged in cross-examination. Without putting the evidence of the claimant on the proverbial imaginary scale with that of the defendant, it is curious to
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ascertain the real basis of the trial judges disbelief of the claimants evidence. It has long been settled that the expression I believe or I disbelieve cannot be randomly used by a trial judge in the evaluation of evidence. There seems in my view to be no basis for the disbelief by the trial judge of the evidence of the claimant in this suit. Where this is the case this Court can consider the decision as perverse and not based on the evidence before the Court. The trial Court from these expressions without more cannot be said to have put the evidence of the plaintiff on the imaginary scale with that of the defendant to determine which has more probative value as he is bound to do. Indeed the defendant as DW1 under cross-examination at page 77 of the records admitted thus:-
On the survey, the portion being claimed by claimants, we have 8 ponds The 8 ponds were dug in April 2014. This to me confirms the testimonies of the claimants witnesses that the defendant a trespasser encroached on the land. That he dug ponds on the claimants land as claimed. Clearly this is an
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admission and the claimant need not lead any evidence in support of admitted facts. See the apex Court cases of OFFOR & ANOR V STATE (2012) 18 NWLR, PT 1333, 421 AND BAALO V FRN (2016) LPELR 40500. It follows therefore that the defendant having admitted that on the survey, the portion being claimed by the claimant we have 8 ponds, the 8 ponds were dug in April, 2014; It is no longer open to the trial judge to find in the manner he did as follows: I therefore find as a fact that the defendant did not embark on the digging of fish ponds on the land of the claimant nor the setback to his land. It is long settled that evaluation of evidence involves the assessment of evidence so as to give value or quality to it and a reasoned belief of one of the contending parties and a disbelief of the other. See the decision of this Court in the case of ENTERPRISE BANK LTD V MEENS NIG LTD (2014) LPELR 23503 as well as the Supreme Court cases of BUHARI V INEC & ORS (2008) 19 NWLR, PT 1120, 246 AND ANEKWE & ANOR V NWEKE (2014) 9 NWLR, PT 1412. This means that the trial judge who did not properly evaluate the
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evidence before it cannot be allowed to hide under the cloak of I believe or I disbelieve to give perverse decisions. Where it is clear as in this case that the trial judge failed to properly evaluate the evidence before him, it is irrelevant that he had the opportunity to watch the demeanor of the witnesses. This is because there is no magic wand in those words. Where the trial Court fails or refuses as in the instant case to evaluate the evidence on record, the mere use of these expressions will not stop this Court from evaluating the evidence to determine whether those expressions are justifiably used. See the locus classicus in the case of OLADEHIN V CONTINENTAL TEXTILE MILLS LTD (1978) LPELR-2543 where Obaseki, JSC as he then was held as follows:-… it is the duty of a trial judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him. He cannot abandon that duty by taking refuge in the clouds of I believe and I do not believe without really evaluating the evidence of vital witnesses. If he abandons this duty, the use of the expressions
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I believe and I do not believe will not estop the appeal Court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions. (See ALHAJI AKIBU V JOSEPH OPALEYE (1974) 11 SC 189 AT 803). See also the case of MENDRICK V THE STATE (2018) LPELR-45549, where this Court held that the mere use of the words I believe but not supported by the evidence on the printed records is at best useless, banal and empty in law and thus without any significance. See also the cases of CONTINENTAL TEXTILE MILLS LTD (1978) LPELR-2543 and NWOKE & ORS V OKERE & ORS (1994) 5 NWLR, PT 343, 159.
I find in the instant case that these expressions were not justifiably used by the trial judge. This issue is also therefore resolved in favour of the appellant. This takes us naturally to issue (3) as raised by the appellant.
Issue (3) is whether the trial Court did not err when he questioned the legitimacy or otherwise of the claimants title in relation to the parcel of land covered by Exhibits A-A1, the Certificate of Occupancy. The
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settled law is that a Certificate of Occupancy is prima facie proof of title to the land over which it was issued. What this means is that it raises a presumption that at the time it was issued there was not in existence a customary owner whose title had not been revoked. In other words, once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the said Certificate of Occupancy is set aside or it gives way to a superior title. See the cases of ILONA V IDAKWO (2003) 11 NWLR, PT 830, 53 and MADU V MADU (2008), 6 NWLR, PT 1083, 296. The law is trite that one of the methods of proving ownership of land is by production of document of title. See ILONA V IDAKWO (SUPRA). In the instant case, the appellant produced Exhibit A-A1, the Certificate of Occupancy in respect of the piece of land in dispute. There is no reason why the learned trial judge should not have accepted this certificate as proof of title of the appellant to the land. The attempt by the trial judge to impose an unwarranted burden on the appellant to prove his title through traditional means is unknown to
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law. The established law is that ownership of land shall be proved by one of five ways:
1. Traditional evidence;
2. Documents of title;
3. Acts of possession spanning over a period of years;
4. Acts of ownership exercised over the land over a period of time and
5. Proof of possession of adjacent or connected land.
See the case of OPOTO & ORS V ANAUN & ORS (2015) LPELR-24734.
Having chosen to come by way of document of title by tendering a valid certificate of occupancy as in Exhibits A-A1, the Appellant has proved his title in accordance with the law. The Court cannot place a burden on a party that the law has not placed thereon. I am conscious of the position of the law that the possession of a Certificate of Occupancy even though prima facie evidence of title, will give way to a better title. See ILONA V IDAKWO (SUPRA) and IBRAHIM V MOHAMMED (2003) 6 NWLR PT. 817, 615. It is however in my view, not the duty of the Court to suo motu seek to rebut this presumption. At page 87 of the records, the trial judge in the face of Exhibits A-A1, the Certificate of Occupancy refused to make a finding as to whether or not this
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established the appellants title to the land. Instead he placed an additional burden on the appellant when he sought the requirement of proof under native law and custom for the purchase of the land. This is misconceived as a party is only entitled to prove title by only one of the five ways. This the appellant did by tendering his document of title. From the reliefs sought by the appellant it is clear that the appellant based his root of title on the statutory right of occupancy which he pleaded and proved by tendering Exhibits A-A1 the Certificate of Occupancy. This position is strengthened by the fact that the grant of a statutory right of occupancy over the land extinguishes any previous licence or right over the same land. See the case of KARI V GANARAM (1997) 2 NWLR PT 488, 380. SECTION 5(2) OF THE LAND USE ACT, CAP L 5 LAWS OF THE FEDERATION 2004 provides as follows:-
5(2) upon the grant of a statutory right of occupancy under the provisions of Subsection (1) of this Section, ALL EXISTING RIGHTS TO THE USE AND OCCUPATION OF THE LAND, WHICH IS THE SUBJECT OF THE STATUTORY RIGHT OF OCCUPANCY SHALL BE EXTINGUISHED. (Emphasis provided)
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The import of this provision and the plethora of authorities on this issue is that a Certificate of Occupancy is evidence of exclusive possession in favour of the holder of the certificate. Until this presumption is successfully challenged or rebutted it continues to be the valid position. In the instant case, I do not see a challenge or a rebuttal to the ownership or exclusive possession of the subject land by the respondent who from all indications is a trespasser. The evidence in this case points to the fact that the appellant was in actual or exclusive possession. The claim of the appellant was both for a declaration of title and a claim in trespass. The claim for trespass should not be determined on the claim for declaration of title as the issue to be determined on the claim for trespass was whether the appellant had established his actual possession and the respondents trespass on it. This is a distinct issue from the claim for title. In the case of ANIABOR & ANOR V EZEABII (2014) LPELR-24151, this Court held that a claim for trespass was not dependent on the claim for declaration of title. In other words failure to prove title to land does
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not defeat a claim for trespass which is firmly rooted in exclusive possession. The learned trial judge was therefore misconceived when he failed to consider the fact that the appellant had as against the respondent established actual possession to the land and the respondents trespass on it as separate and independent issues from his claim to title. This is based on the legal principle that actual possession is good against the whole world except the true owner or one who can show a better right of possession. See the cases of SHITTU V EGBEYEMI & ORS (1996) LPELR-3060 (SC) and SAMAHO V PHCN & ANOR (2017) LPELR-43133(CA).
I have carefully gone through the pleadings of the respondent as contained in the records. In dealing with this issue I would also be considering issue four as raised by the appellant. This is the defence of jus tertii as set up by the respondent. The BLACKS LAW DICTIONARY, 8TH EDITION PAGE 881 defines jus tertii as the right of a third party. The explanation note at the foot of the definition states as follows:-
No defendant in an action of trespass can plead
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the jus tertii. the right of possession outstanding in some third person. as against the fact of possession in the plaintiff.”
The pleadings of the respondent as contained at pages 16 through to 18 is replete with averments of the fact that the land in dispute belongs to Beatron Bonori Agriculture Machines Company Ltd. In the 13 paragraph pleading it is only in six paragraphs that the name of this company is not mentioned. In all of these paragraphs nowhere did the respondent mention what his relationship is with the company. He does not claim to be their agent, privy or even tenant. Neither is he claiming on the strength of the right of the company. The only document tendered by the respondent at the trial was Exhibit B a land purchase agreement between one Mr. Modupe Aina and the Company. He never called a member or staff of the company as a witness to show that they permitted him to use their land or that they sold or sublet it to him. The document is unregistered. The said Mr. Modupe Aina was also not called as a witness. There was nothing before the Court to show that these are existing persons or entities or
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that the document is indeed a genuine and valid document of title. Exhibit B is completely irrelevant to the claim of the respondent and clearly inadmissible. What the respondent has done is to raise the defence of what is known in latin maxim as jus tertii. The settled position of the law on this maxim is that a party in a claim for declaration of title cannot rely on the title of a third party unless he is claiming on the strength of such title. In other words a third party cannot be heard to say that the right to the land in dispute was in another person. See the cases of OKOYE V TOBECHUKWU (2016) LPELR 41508 and MUOKWE V OSUKE (2017) LPELR – 42797.
Based on this well expounded principle of law, it is inconceivable that in an action for trespass by the appellant against the respondent in the instant case, the trial Court not only allowed the respondent to plead jus tertii, i.e the right of possession or title outstanding in Beatron Bonori Agricultural Machines Company Ltd as against the right of occupancy established by the appellant through Exhibits A-A1; but allowed that alleged right to without more impeach or rebut a
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certificate of occupancy. The defence of jus tertii cannot be allowed to defeat the appellants claim under a valid right of occupancy which has not been challenged, impeached or rebutted in any way.
In responding to this issue the respondent contended that since the issue did not arise in the trial Court, raising it in this Court renders the ground of appeal incompetent. This contention is misconceived. Like I pointed out earlier the entire pleadings and evidence of the respondent was based on the fact that the land in question belongs to a third party, Beatron Bonori Agricultural Machines Ltd which was not a party and was not called as a witness. More than that, no evidence was led to establish any legal, valid or subsisting relationship between the respondent and this third party. The issue of jus tertii therefore pervaded the entire proceedings. The respondent was a total stranger to this party so that even if any title was established in favour of this third party, the respondent could not take benefit of it.
Indeed what I find in these whole proceedings from the records is my curiosity that the learned trial judge failed to see the
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respondent for what he was, a trespasser trying to pass off as a person with legitimate interest in the land, the subject matter of this suit. The learned trial judge helped in clothing him very nicely in this role that he was blinded from properly evaluating the evidence of the appellant. This has resulted in a perverse judgment. I have evaluated the evidence on record. I am satisfied that the appellant has proved his case on a balance of evidence. Exhibits A-A1 is prima facie evidence of title over the land. It entitles the appellant to exclusive possession. This presumption of title or exclusive possession was never rebutted. In this situation where the respondent does not claim title or even valid possession, the appellants case is proved by minimal evidence. I am satisfied that the document of title Exhibit A-A1 constitutes such minimum proof. The 3rd party defence of jus tertii set up by the respondent is invalid and does not aid him in anyway. I also find that the holding of the trial judge that failure of the appellant to produce and tender a composite plan was fatal to his claim to my mind was perverse. As I already found in this judgment, the
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respondent at page 77 of the records under cross examination unequivocally admitted to having 8 ponds on the appellants land. He stated thus:
on the survey, the portion being claimed by the claimants, we have 8 ponds. What is admitted needs no further proof. This is an admission of trespass. Trespass is actionable per se without proof of actual damage. In the case of CHUKWUEKE V OKORONKWO (1999) 1 NWLR, PT 587, 410 AT 412 the Supreme Court held that an act of trespass can never become an act of possession and the rightful owner is entitled to complain once he becomes aware of the trespass. At page 86 of the records the trial judge found that Exhibit A does not assist the Court in this matter to show whether the setback is contiguous to the claimants land or that of the defendant.. This finding by the Court is perverse. There was no iota of evidence before the Court to show the right of the defendant to any land either directly or indirectly. His averments where they do not refer to the company, Beatron Bonori Agricultural Machines Co. Ltd are merely general denials and traverse
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which cast upon the appellant the burden of proving such averments. To my mind the appellant has adequately proven his claim on a balance of evidence. I find therefore, that all the issues are resolved in favour of the appellant. This means this appeal succeeds and I allow it. I find that the evidence on record satisfies the requirement of minimal proof required by the appellant in the instant case to prove his case. Consequently the judgment of the High Court of Ondo State sitting in Akure in suit No AK/247/2014 delivered by Hon. Justice S. A. Bola on the 12th day of October, 2017 is hereby set aside. In its place judgement is hereby entered in favour of the appellant as claimed in the court below as follows:
(a) A declaration that the claimant is the person lawfully entitled to the grant of a certificate of statutory right of occupancy in respect of the piece or parcel of land lying being and known as Block I and set back to Imojo Stream at Opa Community layout along Akure/Ondo Road, Akure measuring approximately 2.339 Hectares and subject of certificate of statutory right of occupancy dated 21st day of June, 2000.
(b) AN ORDER of perpetual
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injunction restraining the defendant either by himself servants, privies, agents, assigning (sic) and any other person claiming through him from further trespassing or carrying on any farming or any activity whatsoever on the claimants land lying, being and known as Block I and set back to Imojo Stream at Opa Community Layout along Akure/Ondo Road, Akure measuring approximately 2.339 hectares and subject of certificate of statutory right of occupancy dated 21st day of June, 2000.
On the claim for damages for trespass, it is trite that trespass is actionable per se without proof of actual damage. On the authority of the cases of AJAYI V JOLAOSHO (2004) 2 NWLR PT 856, 89 and UBA PLC V SAMBA PETROLEUM CO LTD (2002) 16 NWLR PT 793, 361 this Court held that damages would be awarded to a party once he has succeeded in proving the act of trespass. And that a plaintiff in a successful claim for trespass is entitled to nominal damages even if no damage or loss is caused. Based on this, I assess nominal damages at N50,000 in favour of the appellant.
I also assess costs at N50, 000.
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MOHAMMED AMBI-USI DANJUMA, J.C.A.: The Appeal herein has been so admirably, most judiciously and comprehensively resolved in all ramifications that I have nothing useful to add than to concur that it is a well taken appeal that deserves to succeed. For emphasis, “jus tertii” cannot avail a defendant in a claim of title clearly established by the proof in the certificate of occupancy and reinforced by its presumption of possession and better title against all except a person that proves a better title.
There was no legal justification for the trial judgment as rendered, at all.
The appeal is allowed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the benefit of reading in draft form the judgment of my learned brother, PATRICIA. A. MAHMOUD JCA, just delivered. My noble Lord has stated the law in a clear terms. All the issues adumbrated has been exhaustively and painstakingly dealt with and I have nothing useful to add. I entirely concur with the reasons advanced and the conclusion reached therein that this appeal has merit and deserves to be allowed. I adopt the said lead judgment as mine. I also allow the appeal. I subscribe to the orders made therein
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including the order as to cost.
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Appearances:
Mr. R. P. Olatubora with him, Mr. C.T. Nwubuchi For Appellant(s)
Mr. Niran Disu with him, Mr. Ogun Felix
For Respondent(s)
Appearances
Mr. R. P. Olatubora with him, Mr. C.T. Nwubuchi For Appellant
AND
Mr. Niran Disu with him, Mr. Ogun Felix For Respondent
