ABIGAIL ISTIFANUS v. WESLEY ISMAILU
(2019)LCN/12911(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2019
CA/YL/177/2017
RATIO
LAND LAW: DECLARATION OF OWNERSHIP
“…for a declaration of ownership of land are governed by certain principles or precepts. First and foremost, the person seeking the declaratory order for title to land must identify that land to which the claim relates. This is even more so where the person against whom the action was taken or maintained (defendant) has joined issues with the claimant on the identity of the land in dispute, the latter must lead evidence to prove same. This burden can be discharged by any of two ways namely: (a) By oral evidence describing with such degree of certainty or accuracy the parcel of land he claims in a manner that will guide a Surveyor armed with this description to produce a Survey plan of the land. (b) By filing a Survey plan of the land claimed reflecting the extent, area or location and boundaries of the land in dispute. See Awote v. Owodumi (No. 2) (1987) 2 NWLR (Pt. 57) 367; Otanma v. Youdubagha (2006) 2 NWLR (Pt. 964) 337; Ezekwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 . Upon the plaintiff or claimant having successfully established the identity of the land his claim relates to, he will proceed to establish his root of title, that is to say, how he came to own the land or how ownership devolved unto him. In each of the two methods referred to above, evidence required of the claimant must be of such quality as to warrant a declaratory order of title (ownership) being made in his favour. He must succeed only on the strength of his own case and not on the weakness of the defendant?s case since a declaratory relief is never granted on admission of a defendant. See Ramona v. Pendro (2014) 13 NWLR (Pt. 1424) 409, 443; Okadere v. Adobara (1984) 6 NWLR (Pt. 3349) 157; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90; Kodinlinye v. Odu (1935) 2 WACA 3368.” PER SAIDU TANKO HUSSAINI, J.C.A.
LAND LAW: METHOD OF PROVING OWNERSHIP TO LAND
“Indeed one of the recognized methods for proving ownership or title to land is by acts of purchase or selling of all or any part of land. The locus classicus case on this point has been the decision of the Apex Court in Idundun v. Okumagba (1976) 1 NMLR 200, 210-221 where the Court held that ownership of land may be proved in any of the following ways: (i) By Traditional evidence; (ii) By Production of documents of title which are duly authenticated; (iii) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion thereof; (iv) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See further, Ashiru v. Olukoya (2006) LPELR-580 (SC) OR (2006) 11 NWLR (Pt. 990).” PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
ABIGAIL ISTIFANUS Appellant(s)
AND
WESLEY ISMAILU Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
The appellant was plaintiff at the High Court of Taraba State vide the suit instituted by her as Suit No. TRS. J/93/2016 on the 21/7/2016. In the statement of claim filed along with the writ of summons, the appellant sought both declaratory and injunctive reliefs, namely:
(i) That she is the owner of the land measuring 50 x 100 situate at Shavo ?A? Mile six, Jalingo, Taraba State.
(ii) An order directing the respondent as defendant and any of his allies to vacate the land fortwith.
(iii) An order of perpetual injunction restraining the respondent from further trespassing into the said land.
The respondent as defendant filed his defence and denied the claim. Parties thereafter called evidence of witnesses in the trial where documents were also tendered and admitted as Exhibits. The trial Court further paid an inspection visit to the locus in quo and took counsel?s final addresses.
FACTS OF THE CASE
The case for the appellant is that she bought the piece of land in dispute from one Ayuba Vande Jonathan who also bought same from one
Thomas Gbampo. Upon taking possession of the land in dispute, she entrusted it to Thomas Gbampo (i.e. the Original owner) since he lived in the vicinity where the land in dispute is situate. Thomas Gbampo died subsequently and in order to secure her property, the appellant/plaintiff went back to the land to plant beacons/stones and to properly demarcate the land since the land was only demarcated with flowers before then. It was at this point that one Mathew Thomas (son to Thomas Gbampo) challenged her saying that the land in question belong to someone else. The appellant instituted action when she noticed that the respondent was carrying out some developments on the land in dispute and laid claim of ownership vide a document she described as a forged document.
Respondent?s claim to the land in dispute of a size measuring 100 x ?50? at Shavo Mile 6, Jalingo is by dint of the transaction by which one. Mrs. Eunice D. Ambikpu sold the land to her (Appellant) in 2014. Eunice D. Ambikpu, it is claimed, bought the land form one Mohammed Efon, who bought a piece of land measuring 100 x 12ft from Mathew Thomas in the year 2012.
Earlier in the year 2009, Mohammed Efon had sought a piece of land measuring 100 x ?38? from Thomas Gbampo. He merged those two pieces of land together as land measuring 100 ?x 50? and he thereafter sold the land to Eunice D. Ambikpu in 2014. The present respondent was said to have bought the land from Eunice D. Ambikpu. Exhibits A, B and E were tendered by the appellant as the plaintiff at the trial Court while the respondent tendered Exhibits C, D and F. In the judgment delivered on the 1st June, 2017 (record: Pages 131-153), the trial court dismissed the claim.
It is against that judgment and order the plaintiff lodged her appeal to this Court on 5 grounds vide the Notice of appeal dated 22nd August, 2017 and filed on 23rd August, 2017. The Record of appeal was transmitted on the 7th of November, 2017 hence parties, in obedience to the rules of Court, filed and exchanged their briefs of argument.
In the brief of argument dated the 12/12/2017 and filed on the 14/12/2017 the appellant raised 2 (two) issues as follows:
(1) Whether the learned Honourable trial judge was right in law when he fails to act, consider and attached value or evidential weight to Exhibit D which he legally admitted? Grounds 4 of the Notice of Appeal.
(2) Whether the learned Honourable trial judge was right in law not to have based his decision on the pleadings and evidence placed before the Court by the parties. Grounds 1, 2, 3 and 5 of the notice of appeal.
Respondent?s brief of argument dated the 5th March, 2018 was filed and deemed on the 6/3/2013. In it he raised just 1 (one) issue for determination of Court thus:
“Whether from the pleadings, evidence and Exhibits tendered, the learned trial judge was right when he dismissed the claim of the Plaintiff/Appellant.”
There is also a reply brief filed on the 23/3/2018 by which the appellant responded on points of law to issues raised and contained in the respondent?s brief of argument. The appeal came up for hearing on 14/1/2019. Learned appellants counsel relied on both the main record of appeal transmitted on the 7th November, 2017 and the additional (Supplementary Record) transmitted on the 14/12/17 to argue his appeal. Mr. B. A. Amoke, learned counsel for the appellant adopted his two briefs including the reply brief, to urge on this Court to allow the appeal and set aside the decision of the trial Court. Mr. M. G. Josiah argued per contra. Having adopted his respondent?s brief and the submissions contained therein urged on us to dismiss the appeal and affirm the Judgment of the trial Court.
After a careful scrutiny of all the briefs filed, it is my considered opinion that the lone issue identified and formulated in the respondent?s brief of argument best meet the justice of this case hence I adopt same in addressing this appeal. The issue again is:
Whether from the pleadings, evidence and Exhibits tendered, the learned trial Judge was right when he dismissed the claim of the Plaintiff/Appellant.
In the submission made by counsel for the appellant he took the view that the trial Court was in error when it dismissed the case of the appellant at the trial Court. This argument is hinged on the failure by the trial Court to evaluate or properly evaluate documentary evidence at its disposal as tendered by parties on both sides. It was argued that had the trial Court properly considered the worth of Exhibit ?D? it would not have come to the conclusion that Exhibit ?C? tendered by the respondent was first in time, to Exhibits ?A? and ?B? tendered by the appellant, thereby dismissing the case for the appellant. We were urged by the appellant to re-evaluate evidence before the trial Court and arrive at a proper conclusion and to found for the claimant. See pages 5-20 of the brief of argument for the appellant on the submissions of counsel. See further the learned Counsel?s Reply brief at pages 1 to 3.
For the respondent, it was argued that the appellant who relied on documents as evidence of title failed to establish by evidence how and who founded the land to which his claim relates. It was further argued that the trial Court was right to dismiss plaintiff?s case where the documents she relied on for her claim, that is, Exhibits A and B were much latter in time than Exhibits ?C?, hence on the principle of priority of interest, the trial Court was right in dismissing the case of the appellant as the plaintiff. On the issue that Exh. ?C? was a forged document or amended version of Exh. E, it was argued that issue of forgery or forged document was neither pleaded nor proved in evidence. Detailed submissions of counsel for the respondent are contained in his brief of argument at pages 4-13.
Actions such as this, seeking as it were, for a declaration of ownership of land are governed by certain principles or precepts. First and foremost, the person seeking the declaratory order for title to land must identify that land to which the claim relates. This is even more so where the person against whom the action was taken or maintained (defendant) has joined issues with the claimant on the identity of the land in dispute, the latter must lead evidence to prove same. This burden can be discharged by any of two ways namely:
(a) By oral evidence describing with such degree of certainty or accuracy the parcel of land he claims in a manner that will guide a Surveyor armed with this description to produce a Survey plan of the land.
(b) By filing a Survey plan of the land claimed reflecting the extent, area or location and boundaries of the land in dispute. See Awote v. Owodumi (No. 2) (1987) 2 NWLR (Pt. 57) 367; Otanma v. Youdubagha (2006) 2 NWLR (Pt. 964) 337; Ezekwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227.
Upon the plaintiff or claimant having successfully established the identity of the land his claim relates to, he will proceed to establish his root of title, that is to say, how he came to own the land or how ownership devolved unto him. In each of the two methods referred to above, evidence required of the claimant must be of such quality as to warrant a declaratory order of title (ownership) being made in his favour. He must succeed only on the strength of his own case and not on the weakness of the defendant?s case since a declaratory relief is never granted on admission of a defendant. See Ramona v. Pendro (2014) 13 NWLR (Pt. 1424) 409, 443; Okadere v. Adobara (1984) 6 NWLR (Pt. 3349) 157; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90; Kodinlinye v. Odu (1935) 2 WACA 3368. These are the areas I intend to explore in this appeal case to see to what extent the appellant has made out a case for herself at the trial Court whose decision or order of dismissal of the Suit is being challenged. The trial Court in its Judgment at pages 152 to 153 of the record of appeal has held that:
The law is settled as submitted by the plaintiffs? learned counsel in his final written address relying in the case of Ayanwale v. Odunsami (2011) 18 NWLR (Pt. 1278) 328. That where two contending parties in a land in dispute derived title from a common vendor, the first in time will take priority, since the first to acquire title has a stronger title, that the later in time, must give way to the earlier one. He cannot in the circumstances maintain an action against the one who first obtained title or interest in the property; the simple reason being that the grantor or original owner who divested himself of his title over the land in dispute to first grantee would have nothing left to convey to the subsequent grantee.
By the combine effect of the said Exhibits A and C in this case, it is apparent that Exhibit C under which the defendant anchored his claim to the land in dispute clearly predate Exhibit A on which the plaintiff also anchored her claim to the land in dispute. By implication the original owners of the land in this dispute the said Thomas Gbampo having divested his interest over the land in dispute as per Exhibit C would have nothing left to equally transfer to the vendor of the plaintiff in this case as per Exhibit A.
Consequently, the case of the plaintiff in this case would have nowhere in the circumstances to stand and that same shall be and it is hereby dismiss.
Going by the finding of the trial Court above, the plaintiff?s suit was dismissed because she had not acquired any interest or title on the land she claimed to be her own. This is so because the transaction covered by Exhibit B did not pass interest to her by reason of the existence of Exhibit C which, it is claimed, is earlier in point of time. The Court also relied on the decision in Ayanwale v. Odunsami (2011) 18 NWLR (Pt. 1278) 328. This is on the principle of priority of title. However, the principle of priority of interest or title will only be invoked where the equities are equal. See Ugbo v. Aburime (1994) 8 NWLR (Pt. 360) P.1; Meadows & Anor. v. Rotimi Fabanwo (2013) LPELR-22082 (CA). A look through Exhibit C, the document captioned:
Sales Purchase Agreement for House and Shop/Land issued on the 24th November, 2009 is in respect of the land with a dimension of 100 by 38 fit at Shavo A Jalingo. Exhibit A and B, particularly Exhibit B to which the claim relates is in respect of the land with a dimension of 50 x 100ft situate at shavon A mile 5, Jalingo. It is clear therefore that plaintiff?s (appellant’s) claim covers a much wider area or expanse of land compared to Exhibit C. In those circumstances, I do not think that the doctrine of priority of title can apply in favour of the transaction covered by Exhibit C even where the original owner of the land is the same person in both transactions. Equities in this case are not equal hence the trial Court was in error when it dismissed the claim before it on this account. I am not unmindful of Exhibit D, a land purchase agreement issued on 27/3/2012 in relation to the land measuring 100 x 12ft. Evidence on record has it that the two parcels of land covered by Exhibits C and D were merged together by one Mohammed Efon, the man who made the purchase in those two transactions and by their merger, the two parcels of land, became 1 (one) with a new dimension of 50 x 100. That notwithstanding I can observe that the vendor who sold the land in Exhibit D is not the same vendor who sold the land in Exhibit C. So putting aside this doctrine of priority of title, the question which I still have to consider is whether by the evidence the plaintiff/appellant had led at the trial Court, she is entitled to a declaratory order of title over the land she had laid claim. The question, put simply is did she prove her claim? I have observed before now that one of two hurdles a claimant is confronted with and which, by law he is required to surmount by leading evidence to prove same, is on the question of the identity of the land in dispute. The trial Court in the judgment delivered by it has put this matter to rest when the Court observed at page 151 of the record thus:
However, the defendant in this case, did raise the issue of identity of the land in dispute both in their pleadings and address, but that was over taken by event when this Court embark (sic) on a visit to the locus in quo via parties consent and same was conducted on the 14/03/2017. Hence the issue was accordingly resolved.
That is the finding of the Court on the issue of the identity of the land in dispute. There is no appeal against that finding of Court hence I take it that the issue of the identity of the land in dispute is not in dispute and the same was not an issue either at the trial Court or before this Court. This finding remains valid and extant. See: Alahija v. Abdullahi (1998) 6 NWLR (Pt. 55) 1, 24. The appellant as Plaintiff at the trial Court led evidence of 3 (three) witnesses and tendered among others, Exhibits A and B, being Land Purchase Agreements. Evidence was led at the trial Court to show that the appellant bought the land through Exhibit B from P.W.2 the Vendor in Exhibit B. P.W.2 had purchased the said land from the original owner, one Thomas Gbampo vide Exhibit A. There is also evidence that the appellant took possession of the land she purchased from P.W.2 and entrusted same to the original owner as her caretaker. Evidence of Plaintiff?s witness as to this fact of Purchase, and the fact that the appellant took the and after purchase was never contradicted under cross-examination. Indeed Exhibits A and B read together with evidence of P.W.1, P.W.2 and PW3 establish the chain of devolution of interest from the original vendor through PW2 to the appellant who came into possession by act of purchase.
Indeed one of the recognized methods for proving ownership or title to land is by acts of purchase or selling of all or any part of land. The locus classicus case on this point has been the decision of the Apex Court in Idundun v. Okumagba (1976) 1 NMLR 200, 210-221 where the Court held that ownership of land may be proved in any of the following ways: (i) By Traditional evidence; (ii) By Production of documents of title which are duly authenticated; (iii) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion thereof; (iv) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See further, Ashiru v. Olukoya (2006) LPELR-580 (SC) OR (2006) 11 NWLR (Pt. 990).
Exhibit A and B respectively, prove this point. The appellant through Exhibit B purchased the land in dispute through PW2 (Ayuba Vende Jonathan) who earlier purchased the same land from Thomas Gbampo vide Exhibit A. I want to believe and I so hold that the appellant did all that was required of her under the law that she came into possession of the land in dispute by legitimate means, through her vendor PW2. That Onus on the appellant was, in my opinion discharged at the Court below in the light of the printed record of evidence and Exhibits, A & B tendered by her at that Court. See Jiwul v. Dimlong (2005) 7 NWLR (Pt. 824) 154. Where therefore there is evidence of payment of money (Exhibit B, is that evidence) coupled with delivery of possession of the property or land to the purchaser, the purchaser acquire sufficient title to the property for which Court could make a declaration of title. The trial Court ought to have come to this conclusion in the light of the evidence of P.W.1, P.W.2, P.W.3 and Exhibits A and B taken together and decisions in (1) Provost Lacoed v. Edun (2004) 6 NWLR (Pt. 870) 476, 498; (2) Ayorinde v. Fajoyin (2001) FWLR (Pt. 95) 483.
By dint of Exhibits A and B and evidence (Statement on Oath) of PW1, PW2 and PW3, it is apparent that the appellant derived her title through purchase hence she is not required to furnish traditional evidence of how she came to own the land in dispute as wrongly argued by counsel for the respondent in his brief. It is the fact of purchase that must be pleaded and proved. See: Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, 782-783. Davies v. Ajibona (1994) 5 NWLR (Pt. 343). The appellant vide her statement of claim pleaded those facts and also led evidence in proof thereof and by reason of which the appellant had discharged the burden to prove her claim before the trial Court, hence the lone issue is resolved in favour of the appellant and against the respondent.
This appeal on the whole is allowed and the Judgment delivered at the High Court of Taraba State on the 1st of June, 2007 vide Suit No. TRSJ/93/2016 is set aside and in its place, is entered this Judgment granting the claim. I make my order as follows:
(i) An Order of Declaration that the Plaintiff (Appellant) is the owner of the land measuring 50 x 100 situate at Shavo ?A? Mile Six, Jalingo,Taraba State.
(ii) An Order is made directed to the Defendant/Respondent (Wesley Ismailu) and his allies to vacate the land forthwith.
(iii) An Order of Perpetual injunction is entered restraining the Defendant/Respondent whether by himself, his agents, servant etc. or others, howsoever claim through by, for, and on his behalf from trespassing or further trespassing into Plaintiff?s/Appellant?s land and/or howsoever dealing with the Plaintiff?s/Appellant?s land in a manner inconsistent with Plaintiff?s/Appellant?s rights, interest in or in title thereto.
(iv) The sum of N200,000 is assessed as general damages against the respondent and for the appellant. Cost in the sum of N50,000.00 is assessed for the appellant and against the respondent.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just rendered by my learned Brother, Saidu Tanko Husaini, JCA.
I am at one with His Lordship that the appeal is imbued with substantial merit for the reasons succinctly set out in the said leading judgment and allow the appeal accordingly. I also abide by all the consequential orders made therein, including that of costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Saidu Tanko Husaini JCA. He has admirably dealt with the lone issue for determination. I have nothing more useful to add.
I agree entirely with my learned brother Husaini JCA that the Appellant by overwhelming evidence adduced before the Court below proved that she purchased the land claimed. The Court below on the evidence adduced by the Appellant ought to have entered judgment in her favour.
For the reasons contained in the lead judgment which I adopt as mine, I allow the appeal and set aside the judgment of the Court below.
Judgment is hereby entered in favour of the Appellant against the Respondent as per the terms in the lead judgment.
I abide by all other orders including the order as to costs.
Appearances:
B. A. Amoke, Esq.For Appellant(s)
M. G. Josiah, Esq.For Respondent(s)
