MADAM MARTINA ARUOTURE v. MR. LUCKY ONIOVOREVUNSAN ATUGEGE
(2019)LCN/13331(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/B/194/2016
RATIO
LAND LAW: ACTS THAT AMOUNT TO EQUITABLE INTEREST IN A LAND
It is now settled law, that where a person pays for a parcel or piece of land, obtains the receipt of payment, goes into possession of the land and remains in possession thereof, an equitable interest in the land is created for him. Such an equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See Savage v. Sarrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 222; Bucknor-Maclean v. Inlaks (1980) 8/11 SC 1; Leo O.C. Obijuru v. I.M. Ozims (1985) 2 NWLR (Pt. 6) 167;Kachalla v. Banki (2006) 8 NWLR (Pt. 982) 364; Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt. 1042) and Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) 10 NWLR (Pt. 1308) 291 at 349 – 350, per Adekeye, JSC.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
LAND LAW: THE POSITION OF AN UNREGISTERED REGISTRABLE INSTRUMENTS IN EVIDENCE
The simple answer is that an unregistered registrable instrument is admissible to establish or prove an equitable interest in land. See Chief Paul Okoroafor & Ors. v. Godwin Udensi & Anor. (2014) 15 NWLR (Pt. 1431) 487 at 500, per Tijani Abubakar, JCA, where the Court held that: –
For the avoidance of doubt, an unregistered land document may be admitted to establish equitable interest of the holder which is an evidence of good title. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
LAND LAW: HOW TO PROVE IDENTITY OF A LAND WHEN IT IS IN ISSUE
Where the identity of land is in dispute, the law recognises two distinctive ways of proving the identity of the land. They are by the claimant or plaintiff:
a) adducing oral description of the land in dispute that a surveyor acting on the strength of that description can make a plan of the land; or
b) filing a plan showing the land in dispute with its boundaries.
See Udofia v. Afia (1940) 6 WACA 216; Kwadzo v. Ajei (1944) 10 WACA 274 and Michael Odunze & Ors. v. Nwosu Nwosu & Ors. (2007) 13 NWLR (Pt. 1050) 1.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MADAM MARTINA ARUOTURE Appellant(s)
AND
MR. LUCKY ONIOVOREVUNSAN ATUGEGE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The Appellant was the defendant in Suit No. UHC/47B/2014 instituted in the High Court of Delta State, holden at Ughelli, wherein the respondent, as claimant, claimed as follows: –
a. A declaration that the claimant is not bound by the judgment of this honourable Court delivered on 12th June, 2013 in Suit No. UHC/73/2006: Madam Martina Aruoture vs. Chief Peter Ikpogban.
b. A declaration that the defendant cannot by the judgment of this honourable Court delivered on 12th June, 2013 in Suit No. UHC/73/2006: Madam Martina Aruoture vs. Chief Peter Ikpogban take over the claimant?s landed property measuring approximately 100 feet by 100 feet, lying, being and situate at Ogude Family land, Ikweghwu-Agbarho, now known and referred to as Atugege?s Compound, Off Saturday Church Street, Off Ughwrughelli Road, Agbarho in Ughelli North Local Government Area of Delta State.
c. A declaration that the defendant?s broking and entering into the claimant?s landed property measuring approximately 100 feet by 100 feet, lying, being and situate
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at Ogude Family land, Ikweghwu-Agbarho, now known and referred to as Atugege?s Compound, Off Saturday Church Street, Off Ughwrughelli Road, Agbarho in Ughelli North Local Government Area of Delta State, without the consent and license of the claimant, amounts to trespass thereon.
d. An Order of perpetual injunction restraining the defendant by herself, her servants, agents, privies or howsoever from trespassing or further trespassing on the claimant?s landed property measuring approximately 100 feet by 100 feet, lying, being and situate at Ogude Family land, Ikweghwu-Agbarho, now known and referred to as Atugege’s Compound, Off Saturday Church Street, Off Ughwrughelli Road, Agbarho in Ughelli North Local Government Area of Delta State.
e. The sum of N3,000,000.00 (Three Million Naira) as damages for the defendants trespass on the claimants said landed property.
The appellant counterclaimed, in the said suit, as follows: –
i. AN ORDER setting aside the purported Deed of Conveyance alienating the said portion/parcel of land in dispute to the claimant without the consent or authorization
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of the defendant sought and obtained.
ii. AN ORDER directing the claimant to remove his father?s corpse which he forcefully caused to be buried on the land in dispute forthwith despite repeated warnings, the land in dispute having been litigated upon in Suit No. UHC/73/2006 and judgment delivered in favour of the defendant.
iii. AN ORDER of perpetual injunction restraining the claimant, his servants, workmen, agents, privies and persons claiming though and/or under him entering on and or in any way interfering with the occupation and peaceful of the defendant?s land.
iv. AN ORDER declaring the transactions of the claimant and some members of Ogude family as null and void because the land in dispute has been litigated upon in suit No. UHC/73/2006 and judgment delivered in favour of the defendant.
v. A declaration that whatever structure now put by the claimants on the aforesaid land shall be forfeited to the defendant under the principles of ?QUID, QUID PLANATATUR SOLO SOLO CEDIT.
vi. The sum of N10,000,000.00 (Ten Million Naira) being special and general damages suffered by the defendant from
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wanton, violent and brazen trespass perpetrated by the claimant, his servants, workmen, agents and/or privies wrongfully and unlawfully broke and entered into the defendant land lying and situate at Echegba Ughelli North Local Government Area within the jurisdiction of this honourable Court and also buried the claimant?s father on the defendants land without the consent of the defendant first sought and obtained.
vii. Other suitable reliefs.
The trial Court heard the case and delivered a reserved judgment on 15/12/2015 whereby the respondents claim was granted and the appellant’s counterclaim was dismissed. This is an appeal against the said decision.
In the appellants brief, filed on 26/01/2017 but deemed as filed on 19/04/2018, the following issues were distilled for determination:-
i. Whether the learned trial Judge was right to have relied on Exhibit A in granting the respondent?s claim. (framed from ground one).
ii. Given the evidence before the Court whether the Court below was right in holding that the land in dispute was not the same as or formed part of the land
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litigated in Suit No. UHC/73/06. (framed from ground two).
iii. Given the totality of evidence adduced in this case, whether the Court below was right in refusing the appellants counter claim. (framed from ground 3).
The respondent adopted the issues reproduced above in his brief filed 23/02/2017 and deemed as properly filed on 19/04/2018.
Issues identified and agreed on by the parties will be taken and treated verbatim. However, issues 2 and 3 will be taken together.
ISSUE 1
Learned counsel for the appellant argued that the respondent did not plead exhibit ?A? as a receipt or acknowledgment of receipt of payment by Ogude family of Ikweghwu-Agbarho but as his title deed to the land in dispute. D.E. Agbaga, Esq., learned counsel for the appellant, then submitted as follows: –
It is a fundamental requirement of law that the respondent must expressly plead Exhibit ?A? as a purchase receipt or acknowledgment of payment before same can be tendered and admitted as Exhibit in the proceedings in the Court below. The respondent having failed to plead Exhibit ?A? as purchase
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receipt or acknowledgment of payment, it is submitted therefore, that Exhibit ?A? is inadmissible in law and the learned trial judge was in error to have admitted and relied on Exhibit ?A? to give judgment in favour of the respondent.
In support of the above submission, learned counsel referred to the case of Pastor J. Akinolu Akinduro v. Alhaji Idris Alaya (2007) LPELR 344 (SC).
Counsel contended that a trial Court has a duty to receive only admissible evidence and, on this point, he cited and relied on the case of Momoh v. Umoru (2011) LPELR ? 8130 (SC).
Learned counsel finally urged the Court to strike out paragraphs 3, 4 and 5 of the respondent?s state of claim and to expunge Exhibit A from the record of the case?.
On behalf of the respondent, learned counsel submitted that the trial Court was right to have relied on exhibit A in granting the respondent?s claim. Learned counsel stated that the respondent founded his claim on possession and the fact that he was put in possession by the head and principal members of Ogude family based
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on Exhibit
Relying on the cases of Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt. 453) 148 and Odunsi v. Bangbala (1995) 1 NWLR (Pt. 374) 641, learned counsel for the respondent submitted as follows: –
It is settled law that documentary evidence needs not be specifically pleaded in order to be admissible, so long as the facts by which such a document is covered are specifically pleaded.
After referring to several authorities, including the case of Union Bank of Nigeria Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385, Jonathan Ekperusi, Esq., learned counsel for the respondent argued that: –
The law is settled that objection to the admissibility of documents should be taken at the point when the document is sought to be tendered in evidence, unless the document is legally inadmissible.
In urging the Court to resolve this issue against the appellant, learned counsel for the respondent referred to the judgment of the trial Court and contended that the trial Court did not rely solely on exhibit ?A? in granting the respondents claim. He opined that the trial Court relied more on the
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respondent?s possession.
In respect of the document admitted by the trial Court as exhibit ?A?, the respondent pleaded in paragraphs 3 and 4 of his statement of claim as follows: –
?3. By Deed of Conveyance made in 2001 between the claimant and the Ogude Family of Ikweghwu-Agbarho, the claimant became the beneficial owner of the piece or parcel of land measuring approximately 100 feet by 100 feet, lying, being and situate at Ogude Family land, Ikweghwu-Agbarho, now known and referred to as Atugege?s Compound, Off Saturday Church Street, Off Ughwrughelli Road, Agbarho in Ughelli North Local Government Area of Delta State, a place within the jurisdiction of this honourable Court.
4. In the said Deed of Conveyance made in 2001, the Ogude Family was represented by Chief David Onakpoma (as Elder of Ogude Family) who acted as the head of the family; Mr. Samuel B. Esha (as Ogude Family Ancestral Chief Priest); Chief Peter Kpogban (as Chairman of Ogude Family Land Committee); Chief Simon Ogbudu (as Treasurer of Ogude Family Land Committee); Mr. Reudeb Edemirukaye (as Ogude Family Member) as principal member of the family;
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Mr. Emmanuel O. Okposio (as Ogude Family Member) as principal member of the family; Mr. Eferurhobo Okokoh (as Ogude Family Land Committee Member; and Mr. Stephen Erhichovwe (as Ogude Family Land Committee Member) acting for themselves and on behalf of Ogude Family of Ikweghwu-Agbarho, Delta State of Nigeria. The claimant shall at the hearing rely on a copy of the Deed of Conveyance of 2001.?
The respondent then pleaded various acts of possession, based on the said deed of conveyance ? exhibit ?A?, in paragraphs 5, 6, 7, and 8 of his statement of claim as follows: –
5. After executing the Deed of Conveyance, the Ogude Family acting through the representatives listed above, immediately put the claimant in possession of the said land. The claimant has been in possession of the said land since 2001 and has since developed same by building a house thereon where he now resides with members of his family without any disturbance, objection or challenge whatsoever from the defendant or any other person whatsoever.
6. When the claimants father died in the year 2005, the claimant buried his father on the said land on
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the 15th day of October 2005 without any disturbance, objection or challenge whatsoever from the defendant or any other person whatsoever.
7. After burying his father on the land in the year 2005, when the claimant was to commence the actual erection of his building on the said land, the Ogude Family youths demanded that the claimant should pay foundation levy to them, which the claimant duly paid. The claimant then laid the foundation of his house on the land in the year 2009 without any disturbance, objection or challenge whatsoever from the defendant or any other person whatsoever.
8. After laying the foundation for the house, the claimant continued with the building of his house on the said land, until he eventually moved into the house with his family members in April, 2013. Throughout the period of building his house on the land, the claimant was never disturbed, objected to or challenged in any way whatsoever by the defendant or any other person whatsoever.
As can be seen from the respondents pleadings, reproduced above, the respondent?s claim was that based on the deed of conveyance exhibit A, he
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was put into possession of the land in 2001 and that he had since then been exercising various acts of possession.
It is now settled law, that where a person pays for a parcel or piece of land, obtains the receipt of payment, goes into possession of the land and remains in possession thereof, an equitable interest in the land is created for him. Such an equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See Savage v. Sarrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 222; Bucknor-Maclean v. Inlaks (1980) 8/11 SC 1; Leo O.C. Obijuru v. I.M. Ozims (1985) 2 NWLR (Pt. 6) 167;Kachalla v. Banki (2006) 8 NWLR (Pt. 982) 364; Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt. 1042) and Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) 10 NWLR (Pt. 1308) 291 at 349 – 350, per Adekeye, JSC.
The substance of the appellant?s arguments in respect of this issue is that exhibit ?A? is a registrable instrument and it was not admissible because it was not registered. The simple answer is that an unregistered registrable instrument is admissible to
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establish or prove an equitable interest in land. See Chief Paul Okoroafor & Ors. v. Godwin Udensi & Anor. (2014) 15 NWLR (Pt. 1431) 487 at 500, per Tijani Abubakar, JCA, where the Court held that: –
For the avoidance of doubt, an unregistered land document may be admitted to establish equitable interest of the holder which is an evidence of good title.
Having regard to the facts and circumstances of this case, the trial Court was right in relying on exhibit A an unregistered land document in granting the respondents claim.
It is for the above reasons that I resolve this issue in favour of the respondent and against the appellant.
ISSUES 2 AND 3
Learned counsel for the appellant referred to paragraphs 10 and 17 of the respondent?s statement of claim and submitted, inter alia, as follows: –
?From the above pleading, the respondent as claimant did not raise any issue that the land in dispute was not part of or covered by the land in Suit No. UHC/73/06. The respondent only pleaded that he did not acquire the land in dispute from Chief Peter Ikpoban
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but from Ogude family. The averments in the respondents statement of claim show that the identity of the land in Suit No. UHC/73/2006 was not disputed in this case.
It was also contended that, based on the pleadings, the appellant had no burden to tender survey plan to identify the expanse of land covered by exhibit B.
In response, learned counsel for the respondent submitted that the respondent pleaded, in his reply to the statement of defence and defence to counterclaim, that the land in dispute was not the subject of litigation in Suit No. UHC/73/2006.
I have read the pleadings, which the parties filed and exchanged in the trial Court. The appellant pleaded in paragraph 2 of her statement of defence and counterclaim as follows: –
2. Defendant vehemently denies paragraphs 3 and 4 of the statement of claim and state that the land in dispute does not belong to the Ogude family of Ikweghwu-Agbarho. Defendant avers further that the land in dispute was a subject of litigation in Suit No.UHC/73/2006 between Madam Martina Akporobaro Aruoture vs. Peter Ikpoban and judgment delivered therein on the 12th
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day of June 2013 wherein she was granted exclusive possession of the land in dispute. The defendant shall at the trial rely on the Certified True Copy of the judgment in Suit No. UHC/73/2006 in proof of her case.?
In his response, the respondent pleaded in paragraph 1 of his reply to statement of defence and defence to counterclaim as follows: –
?1. In reply to paragraphs 2, 6, 7, 15, 16 and 17 of the statement of defence, the claimant avers that the land in dispute was not a subject of litigation in Suit No. UHC/73/2006. The defendant was not granted exclusive possession of the claimant?s land in dispute hereof, in the judgment of this Court in Suit No. UHC/73/2006.?
Whereas in Suit No. UHC/47B/2014, there was no dispute as to the identity of the land litigated upon in that case; however, whether or not the area of land litigated upon in Suit No. UHC/73/2006 covers the land in dispute in Suit No. UHC/47B/2014 was a live issue settled by the pleadings. Put differently, the identity of the land litigated upon in Suit No. UHC/73/2006 was put in dispute in Suit No. UHC/47B/2014.
?Where the identity of land is in
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dispute, the law recognises two distinctive ways of proving the identity of the land. They are by the claimant or plaintiff:
a) adducing oral description of the land in dispute that a surveyor acting on the strength of that description can make a plan of the land; or
b) filing a plan showing the land in dispute with its boundaries.
See Udofia v. Afia (1940) 6 WACA 216; Kwadzo v. Ajei (1944) 10 WACA 274 and Michael Odunze & Ors. v. Nwosu Nwosu & Ors. (2007) 13 NWLR (Pt. 1050) 1.
In this case, the appellant had the burden to prove that the land litigated upon in Suit No. UHC/73/2006 covers the whole or part of the land in dispute in Suit No. UHC/47B/2014 but she failed to do so by any of the two ways of proving the identity of land in dispute.
Without much ado, I resolve Issue 2 in favour of the respondent and against the appellant.
The law is settled that a counter-claimant has the burden or onus of proving his counterclaim. See Munzali Ahmadu Dantata v. Abdulkadir Sanusi Dantata (2002) 4 NWLR (Pt. 756) 144 at 167, per Bulkachuwa, JCA (as he then was).
The appellant, as the counter-claimant in the trial Court, had the
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burden of proving her counterclaim.
The appellants counterclaim was inextricably tied to the judgment in Suit No. UHC/73/2006, which she claimed covers the land in dispute in Suit No. UHC/47B/2014. Since I have resolved that the appellant failed to prove that the land in dispute in Suit No. UHC/73/2006 covers or includes the land in dispute in Suit No. UHC/47B/2014, the appellant?s counterclaim was rightly refused and dismissed by the trial Court, for the elaborate reasons advanced by the trial Court.
For the above reasons, Issue 3 is also resolved against the appellant.
CONCLUSION
Since all the issues have been resolved in favour of the respondent and against the appellant, the appeal lacks merit and it is hereby dismissed.
The judgment of the trial Court delivered in Suit No. UHC/47B/2014 on 15/12/2015 by the High Court of Delta State, per Hon. Justice G.E. Akperi, is hereby affirmed.
The sum of N150,000.00 (One hundred and fifty thousand naira only) is hereby awarded as costs in favour of the respondent and against the appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the
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judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN JCA. I am in complete agreement with the reasoning and conclusion that the appeal is completely without merit and should be dismissed.
Appeal Dismissed. I abide by the order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother Abraham Adumein, JCA.
The reasoning and conclusion well articulated therein is in consonance with the issues formulated for determination. I adopt same as mine. I therefore bold that the appeal lacks merit and it is accordingly dismissed.
?I abide by the consequential orders made in the lead judgment inclusive of that of cost.
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Appearances:
D.E. Agbaga, Esq. with A.U. Shakarho, Esq. and F.A. Ariekpe, Esq.For Appellant(s)
Jonathan Ekperusi, Esq.For Respondent(s)
Appearances
D.E. Agbaga, Esq. with A.U. Shakarho, Esq. and F.A. Ariekpe, Esq.For Appellant
AND
Jonathan Ekperusi, Esq.For Respondent
