ADIATU LADUNNI v. ADEJUWON ADEPUJI ADESOYE (2015)

ADIATU LADUNNI v. ADEJUWON ADEPUJI ADESOYE

(2015)LCN/7983(CA)

In The Court of Appeal of Nigeria

On Monday, the 13th day of July, 2015

CA/L/440/2008

RATIO

LAND LAW: TITLE TO LAND; WAYS OF PROVING OR ESTABLISHING TITLE OR OWNERSHIP OF LAND

There are five (5) ways of proving or establishing title to or ownership of Land. These are by:-
1. traditional evidence;
2. production of documents of title duly authenticated in the sense that their due execution must be proved;
3. by positive acts of ownership extending over a sufficient length of time;
4. by acts of long possession and enjoyment of the land;
5. 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.
The Law is that the establishment of one of the five (5) ways is sufficient proof of ownership. See Ayoola vs. Odofin (1984) II SC pg. 120, Ewo vs. Ani (2004) 17 NSCQR pg. 36, Nkado vs. Obiano (1997) 5 NWLR pt.503 pg. 31, Nkwo vs. Iboe (1998) 7 NWLR pt.558 pg. 354, Adesanya vs. Aderounmu (2000) 6 SC pt.11 pg.18. per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In a claim for declaration of title to Land, a plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the defendant’s case. See Otanma vs. Youdubagha (2006) 2 NWLR pt.964 pg.337, Onisaodu vs. Elewuju (2006) 13 NWLR pt.998 pg. 517, Dike vs. Okoloede (1999) 10 NWLR pt.623 pg.339, Eze vs. Afasie (2000) 6 SC pt.1 pg.214. per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CIVIL CASES

In civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of Law that the burden shifts and continues to shift. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICE

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

ADIATU LADUNNIAppellant(s)

AND

ADEJUWON ADEPUJI ADESOYERespondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State delivered on the 18th of July, 2003 by Hon. Justice I.A. Sotuminu (Rtd).

By a Writ of Summons, together with a further Amended Statement of claim dated 30th of March, 2001, the Plaintiff now Respondent claimed as follows:-
1. A declaration that the Plaintiff is entitled to a Statutory Certificate of Occupancy in respect of Plot 149 on Plan OA 1381 at Idi-Araba Village, Ikorodu Road formerly known as Jemi-Alade Estate Lagos in the Lagos State of Nigeria.
2. An order of perpetual injunction restraining the Defendant, his servants, agents, or privies from committing any further act of trespass on the land referred to in paragraph 1 hereof.
3. N50,000 as special and general damages.

The Defendant, now Appellant, filed a 2nd Amended Statement of Defence dated 9th of December, 1992 to the action. The Respondent further filed a reply to the Appellant’s Statement of Defence dated 25th of June, 1984. At the trial, the Respondent told the Court that the land in dispute originally belonged to the Alashe Family, who sold the said land to Jemi-Alade by virtue of Exhibit B (Deed of Conveyance dated 19th of May, 1947) and registered as No. 22, at page 22, in volume 797. After the death of Jemi-Alade, his Administrators conveyed the said land to his predecessor in title, Mr. Adefowope by virtue of Exhibit C (Deed of Conveyance dated 9th of April, 1970) and registered as No. 68 at page 68 in Volume 1315. Sometime in 1972, he bought the said land from Mr. Adefowope by virtue of Exhibit D (Deed of Conveyance dated 1st of September 1972) and was registered at the Land Registry as No. 64 at page 64 in Volume 1402. He went into possession immediately. It was, however, in 1977 that he noticed that the Appellant had trespassed into the land and had made efforts to ward off the Appellant from his land and hence this suit. On his part, the Appellant led evidence to prove that he purchased the land from Alhaji Elias in 1968 and has been in possession since then. He relied on Exhibit P. He contended that Aborishade Lawanson had bought the land from the Alashe family and then sold to Alhaji Elias.

At the conclusion of the trial and address of counsel, the learned trial judge entered judgment for the Plaintiff/Respondent and granted all the reliefs sought. The Appellant being dissatisfied with the judgment of the Court below, filed this appeal. An Amended Notice of Appeal was filed on 21st of November, 2013 with leave of this Court. Thereafter, the Appellant filed Ten (10) grounds of appeal out of which the learned counsel for the Appellant formulated three issues for determination by this Court. The issues, as contained in the brief, are as follows:-
“1. Whether the Plaintiff proved a better title to the land in dispute, Ground 3, 4, 5 and 10 of the Amended Notice of Appeal.
2. Whether the learned trial Chief Judge was right when she held that both the Plaintiff and the Defendant as successors in title to Jemi Alade and Lawani Aborishade are precluded in law from relitigating over the issues alresdy laid to rest in Suit I/146/54 (E2) aforesaid. Ground 9 of the Amended Notice of Appeal.
3. Whether the learned trial Chief Judge was right when she entered judgment for the Plaintiff. Ground 1, 2, 6, 7, 8 and 11 of the Amended Notice of Appeal.”

The Respondent, in his brief, had adopted the above issues for determination by the appeal. Thus, this appeal will be determined in terms of the above issues raised.

ISSUE 1
Learned counsel for the Appellant submitted that the Plaintiff/Respondent had failed to prove his title to the land in dispute. According to counsel, the case of the Respondent at the trial Court was that, the land in dispute in the instant case formed part of the land litigated in Suit No. I/146/54 between Babatunde Jemi-Alade vs. Aborishade (Exhibit E-E2). That the Court in its judgment in suit No. I/146/54 confirmed the title of Jemi-Alade to the said land (including the land in dispute in the instant case). That upon the death of Jemi-Alade, the beneficiaries of his estate, by virtue of the said judgment, conveyed the land in dispute to Adefowope (Respondent’s predecessor in title) in Exhibit C, who in turn conveyed to the Respondent in Exhibit D. It is the submission of the Appellant’s counsel that the evidence of composite plan (Exhibit A and Q) and the testimonies of the surveyors (PW3 and DW4) at the trial Court shows that the land in dispute in the instant case did not fall within the land litigated in suit no. I/146/1954. Thus the root of title pleaded by the Respondent at the lower Court was not proved. It is also his submission that since the land conveyed by Jemi-Alade’s family to Respondent’s predecessor did not fall within the land litigated in Suit No. I/146/54, both Exhibit C and D are null and void on the doctrine of Nemo dat quod non habet. It is the case of the Appellant that the land covered by the judgment is verged “brown” on survey plan marked Exhibit J, whilst the land in dispute in this case claimed by the Respondent is verged “green” on survey plan Exhibit J. By the testimony of PW3, the land in dispute does not fall within the land litigated upon in suit No. I/146/54. In the same way, the land covered by the judgment in Suit No I/146/54 is verged “blue” in Exhibit Q [composite Plan prepared by DW4) whilst the land in dispute in this case is verged “yellow” and by the testimony of DW4 the land in dispute is outside the land litigated in Suit No. I/146/54. It is the submission of counsel that the Respondent is bound by its pleadings but the facts pleaded by the Respondent as the basis of his root of title is not supported by evidence before the Court. The Respondent has failed to discharge the burden of proving his root of title in this case. He relied on the case of Emegokwe vs. Okadigbo (1973) 4 SC 8; Obazee Ogiamien vs. Obahan Ogiamien (1967) NMLR 245; Olaloye vs. Balogun (1990) NWLR (Pt 148) Pg 24.

He also submitted that the Court is bound by the pleadings of the parties and cannot make a case different from that placed by the parties before the Court. He relied on the case of Veronica Ciraham & Ors vs. Lawrence Esumai (1984) 5 SC 319; Shaibu vs. Bakare (1984) 12 SC 87.

On the other hand, the Respondent’s Counsel submitted that the identity of the land is not in dispute being the property at Plot 149 on Plan AO1381. According to him, this is acknowledged in the written Address of the Appellant at the trial Court. The Respondent acknowledged that there are two (2) farms; one big farm and a smaller one and that the land in dispute in this case forms part of the small farm. It is his case that the recital in Exhibit C (Deed of Conveyance between Adefowope and Jemi-Alade) referring to a judgment is making reference, though in error, to the big farm. It is the submission of counsel that the error in the Recital does not affect the body of the conveyance. He traced his title to the original owner of the land, The Alashe Family. According to the Respondent, the land in dispute forms part of the land sold to Jemi-Alade.

According to the Respondent, both parties in this case have traced their title to the land in dispute to the same source i.e. The Alashe Family. However, whilst the Respondent has been able to trace an unbroken root of title to that family, the Appellant has failed to do so as there is no evidence of purchase from the original owner to Aborishade from whom the Appellant claimed to have derived title. It is the contention of the Respondent that none of the witnesses could testify in support of such a purchase and none of them could produce the purchase receipt. Counsel urged the Court to resolve this issue in favour of the Respondent.

The Respondent in this case decided to establish his ownership of Land by the production of documents of title. The Respondent and the Appellant both claimed they derived their title from the Alashe Family.

The Respondent as plaintiff in proof of his ownership pleaded in paragraph 3-11 of the further amended statement of claim at pg. 200 of Record of Appeal. I will reproduce it hereunder for ease of reference:
“3. The said land formed part of a large tract of land which originally belonged to the Alashe Family from time immemorial.
4. Under and by virtue of a Deed of conveyance dated the 19th of May, 1947 and registered as No. 22 at Page 22 in Volume 797 in the Land Registry, Lagos, the said Alashe Family sold a large portion of their Land to one Babatunde Jemi-Alade, a trader, then of 140, Clifford Street Ebute-Metta.
5. The Land in dispute formed part of the aforementioned Land sold by the Alashe Family to the said Babatunde Jemi-Alade.
6, Immediately after the sale of 1947 aforesaid, the said Babatunde Jemi-Alade went into peaceful and undisputed possession of the land, exercising thereon maximum overt acts of ownership,
7. The Land, part of which is the land in dispute, was the subject matter of the Court action in suit No. I/146/54, Babatunde Jemi-Alade vs. Aborishade in which Judgment was delivered on March, 17 1962 at the High Court, Ikeja.
8. The aforementioned Judgment confirmed the title of the said Babatunde Jemi-Alade to the said Land including the land in dispute, and the plaintiff will rely thereon.
9. Following the demise of the said Babatunde Jemi-Alade in 1961, Letters of Administration(without Will) was obtained on the 28th of October, 1961 and the Letters of Administration was resealed to cover the real property of the deceased in Western State of Nigeria on the 18th of August, 1967.
10. That after the death of the said Babatunde Jemi-Alade in 1961, his Administrators, who had power to deal with his real estate, sold the land in dispute to one Alhaji Adefowope under and by virtue of the Deed of Conveyance dated 9th of April, 1970 and registered as No, 68 at page 68 in Volume 1315.
11. The Plaintiff says that under and by virtue of a Deed of conveyance dated the 7th of September, 1972 and registered as No. 64 at page 64 in Volume 1402 of the Lands Registry, Lagos, the said Akanji Adefowope conveyed the land in dispute to him.”

The Respondent traced the root of his title to the Alashe Family. The Alashe family sold a large portion of land (which constitute one big farm and one small farm) to one Babatunde Jemi-Alade, a trader. This transaction was reduced into writing by a deed of conveyance dated the 19th of May, 1947 and registered as No. 22 at pg. 22 in vol. 797 in the Land Registry Lagos, Exhibit B. After the sale, Jemi-Alade went into peaceful possession of the said land. The said Jemi-Alade had litigated with one Aborishade on the land described as the “big farm” which is not the subject matter of this Appeal. Jemi-Alade was confirmed the owner of the land in suit No. I/146/54. At his demise in 1961, the administrators of his will sold the “small farm” [land in dispute) to Akanji Adefowope. This was also reduced into writing and registered as No.68 at page 68 in Volume 1315 dated the 9th of April, 1970, Exhibit C.

By virtue of a deed of conveyance dated the 1st of September, 1972 and registered as No. 64 page 64 in Volume 1402 in the Land Registry in Lagos, Exhibit D conveyed the Land to the present Respondent. This is an unbroken chain from the original owners of the Land, Alashe Family to the Respondent.

The Respondent tendered all his documents. However, production of documents of title does not automatically entitle a party to a claim in declaration. Thus, before the production of documents of title is admitted as sufficient proof of ownership, the Court must satisfy itself that:
(a) the document is genuine or valid;
(b) it has been duly executed; stamped and registered;
(c) the grantor has the authority and capacity to make the grant; and
(d) that the grantor has in fact what he propose to grant;
(e) that the grant has the effect claimed by the holder of the instrument. See Romaine vs. Romaine (1992) 4 NWLR pt.238 pg. 650; Kyani vs. Alkali (2001) FWLR pt.60 pg.1481; Dabo vs. Abdullahi (2005) 29 WRN 11 SC, (2005) 2 SCNJ pg 76, (2005) 7 NWLR pt.923 pg.181.

Not only did the Respondent trace his root of title, he also authenticated it with the production of duly executed, stamped and registered deeds, Exhibit B, C, and D. Indeed, a Plaintiff who claims a declaration of title to Land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. Olokotintin vs. Sarumi (2002) 13 NWLR pt.784 pg.307.

The Respondent’s predecessor in title had been in several cases in litigation over portions of the larger area of land. Jemi-Alade had litigated with Aborishade, the supposed predecessor in title of the Appellant. In suit No. I/146/54, Babatunde Jemi-Alade vs. Lawani Aborishade, the Judgment Exhibit E2 was in favour of Jemi-Alade, a predecessor in title of the Respondent. In fact, Jemi-Alade had a lot of litigation on the so-called larger Farm Land and the smaller Farm Land. In all, Jemi-Alade had been successful.

There seemed to be a mix-up whether the Land in issue in this Appeal is part of the Land litigated in I/146/54. It appears the Land in issue was not part of the one litigated in I/146/54. However, where in a Land case, the area of Land in dispute is well known to both sides, the issue of proof of it does not arise, as the Court cannot possibly reach a conclusion that the area claimed is not certain. Osho vs. Akpe (1998) 8 NWLR pt.562 pg.492.

Both parties in this Appeal know the Land in dispute.

The Appellant says that the Alashe Family sold the Land to Aborishade, who sold to Alhaji Elias who, in turn sold the Land to the Appellant. The Appellant as defendant was unable to prove the devolution of title from Alashe Family to Aborishade. The Appellant called no member of the Alashe Family to confirm witnessing the sale. It is of great importance that the Respondent tendered the Judgment in suit No. I/146/54 which showed that the larger of the two (2) plots called “big farm” measuring about 12.4 acres, which Aborishade claimed to have acquired from Alashe Family, was in fact lost in litigation to Jemi-Alade, the Respondent’s predecessor-in-title.

The Appellant submitted that Aborishade was given a receipt which he claimed got lost. It is trite Law that a purchase of Land can be proved by a purchase receipt or by an agreement of sale, or by any fact that shows such a transaction did take place. See Adepate vs. Babatunde (2002) 4 NWLR pt.756 pg. 99.

The Appellant was not able to produce the purchase receipt from the original purchaser from the Alashe Family nor a witness to prove that there was indeed a sale of the Land. A purchase receipt is evidence that there was an agreement for sale of Land, and that the consideration for sale was paid by the purchaser. See Aminu vs. Ogunyebi (2004) 10 NWLR pt.882 pg.457.

Both parties claimed that their predecessors in title purchased the Land from the Alashe Family but only the Respondent could prove his title whilst the Appellant was unable to prove a better title.

The Appellant has shown by documentary evidence, his root to title as opposed to the Appellant. The Respondent is entitled to the declaration made by the trial Court that he is indeed entitled to be declared the owner of the Land in issue. This issue is, therefore, resolved against the Appellant.

ISSUE 2
Learned counsel for the Appellant submitted that the finding of the learned trial judge, that both the Plaintiff/Respondent and the Defendant/Appellant as successors in title to Jemi-Alade and Lawani Aborishade respectively are precluded from relitigating over the issues already laid to rest in the judgment of Morgan J in suit no. I/146/1954 is wrong in law because the land adjudged in Exhibit E-E2 and the land in dispute in the instant case are not the same. He relied on the evidence of PW3 and DW4; Exhibit A and Q [composite plan prepared by PW3 and DW4 respectively.) He further contended that the doctrine of issue estoppel per rem judicata cannot apply in this case as the subject matter between I/146/1954 and the instant case are different. He relied on the case of Ajiboye vs. Ishola (2006) 39 WRN 1.

On the other hand, counsel for the Respondent submitted that the trial judge was right in pronouncing on suit no. I/146/1954 since it was one of the issues before the Court. He referred to paragraphs 6 and 7 of the 2nd Amended Statement of Defence wherein the Appellant had asserted Lawani Aborishade’s claim to the land litigated in suit no. I/146/1954. Thus the Court rightly applied the doctrine of Estoppel.

This issue of estoppel over the land, judgment was delivered in suit No I/146/54. It appears this suit between Jemi-Alade and Aborishade was in respect of the “big farm”. The trial Judge rightly applied the doctrine of Estoppel. Both parties knew that their predecessors in title had litigated over the “big farm”. They cannot continue litigating over it. See Kamalu vs. Umunna (1997) 5 NWLR pt 305 pg.321. Both parties also were not in doubt as to the land, the subject matter of this appeal.

The trial Judge was, therefore, right in holding that the doctrine of Estoppel would apply to the “big farm”, the Res in I/146/54. This issue is also resolved against the Appellant.

ISSUE 3
Learned counsel for the Appellant submitted that the Respondent’s claim at the lower Court ought to have been dismissed because the Respondent had failed to prove a better title to the land in dispute. He further contended that the evidence of prior possession by the Appellant which was not controverted was enough to oust the Respondent’s claim, who had failed to prove his title. He relied on the evidence of Alhaji Adiatu Ladunni contained at page 103 lines 25-28; page 105 lines 1-3 and the case of Ajadi vs. Olanrewaju (1969) 1 ALL NLR 382.

On the other hand, counsel for the Respondent submitted that it was proper for the trial Court to have granted all the reliefs sought by the Respondent since the Respondent was able to prove a better title to the land in dispute, that is, by the production of title document as against the Appellant who was unable to produce a purchase receipt. He relied on Exhibit B, C, and D; the testimony of the Respondent and Exhibit E. He also referred to the following cases Majekodunmi vs. Abina (2002) 3 NWLR (Pt 775) 720; Ajadi vs. Olanrewaju (1969) 1 ALL NLR 382; Ezekwesili vs. Agbapuonwu (2003) 9 NWLR (Pt 825) Pg 363; Alli vs. Alesinloye (2000) 6 NWLR (Pt 660) 177; Akinterinwa vs. Oladunjoye (2000) 6 NWLR (Pt 659) 92.

I had earlier on in issue one dealt with the issue of proof of title of the Respondent. The Respondent proved a better title than the Appellant. The Respondent knew that in seeking a declaration of title to land he must prove his root of title.

The Respondent has the burden of proving his case upon his own evidence and cannot rely on the weakness of the Appellant’s case. The Respondent in this case proved his root of title by tracing it to the Alashe Family. The Respondent’s predecessor-in-title, Jemi-Alade, had been victorious in the numerous suits about ownership of adjoining lands. The Respondent in proof of his root tendered Exhibits B, C & D. These documents were duly executed, stamped and registered in the Lands Registry, Lagos.

Whereas the Appellant pleaded a purchase receipt from the Alashe Family, this receipt was never tendered as the Appellant claimed it was lost. A purchase receipt, if tendered, would have been evidence that there was an agreement for sale of land, and that the consideration for sale was paid by the purchaser. See Aminu vs. Ogunyebi (2004) 10 NWLR Pt 882 pg 457.

For a receipt to be accepted as proof of sale of land, there must be evidence that the sale was in accordance with native law and custom of the area and that the purchaser of land was put in possession. See Aduke vs. Obiaren (2002) 4 NWLR pt 758 pg 537.

To constitute a valid sale of land under the customary law, three essential ingredients are required, namely:
(a). payment of purchase price
(b). purchaser is let into possession by the vendor; and
(c). In the presence of witnesses
See Ogundatu vs. Macjob (2006) 7 NWLR pt 978 pg 148.

The Appellant could not get any witness who could testify that he witnessed the sale transaction. How then could he prove a better title to the land in issue? There is also evidence that Aborishade, the Appellant’s predecessor in title lost a lot of the adjoining land. The Appellant did not testify with certainty how he lost or gave up those plots of land. If he lost those plots by whatever means, it is likely that he does not also own the Res in issue here.

Moreover, the receipt of the purported sale was not tendered in Court as the Appellant claimed it was lost.

The Respondent as plaintiff was able to prove his case. Therefore he has discharged the burden placed on him. The burden, therefore, shifted to the Appellant to prove his title. This he failed to do. Iman vs. Sheriff (2005) 4 NWLR Pt.914 pg.80, Elias vs. Omo-Bare (1982) 5 SC pg. 25, Agbi vs. Agbeh (2006) 11 NWLR pt.990 pg.65.

The Appellant could not establish a better title than the Respondent and, therefore, he must fail.

This issue is also resolved against the Appellant. All the three issues articulated by the Appellant have all been resolved against him.

This appeal is, therefore, unmeritorious and hereby dismissed.

The Judgment of the lower Court is hereby affirmed.

TIJJANI ABUBAKAR, J.C.A.: My learned brother UZO I. NDUKWE-ANYANWU, JCA made available to me in draft the lead Judgment just delivered. I am in complete agreement with the entire judgment and adopt it as my own with nothing extra to add.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, UZO I. NDUKWE-ANYANWU, JCA and I agree with the reasoning and conclusion arrived in the judgment.

I believe there is no point belabouring the fact that in a claim for a declaration of title, a plaintiff must succeed on the strength of his case for title and not on the weakness of the defence and that where the plaintiff fails to discharge the onus on him, his case is liable to be dismissed. See ONWUAMA V. EZEOKOLI NSCQR 9 (2002) 233.

In this instant case, the Appellant failed as plaintiff in the trial Court to prove his title to the land over that of the Respondent. As a result his claim must fail.

I also dismiss this Appeal and abide by the consequential orders made in the lead judgment.

Appearances

Appellants (Absent)For Appellant

AND

Lanre Ogunlesi (SAN), T. Demuren (Miss), J.P. Ogbamide (Miss), W. Kasali, S.A. Adesanya, O.D. ShyllonFor Respondent