AKPAN v. UDO
(2021)LCN/15046(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Thursday, February 11, 2021
CA/C/385/2016
RATIO
CONDITION FOR THE GRANT OF DECLARATORY RELIEFS
It is trite law that declaratory reliefs are not granted as a matter of course or on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. See Anyaru v. Mandilas Ltd (2007) 4 SCNJ 288; Chukwumah v. S.P.D.C (Nig) Ltd (1993) LPELR – 864 SC and Matanmi & 4 Ors. v. Dada & Anor (2013) LPELR. PER JAMES SHEHU ABIRIYI, J.C.A.
EFFECT OF THE FAILURE OF AN ADVERSARY TO CROSS-EXAMINE A WITNESS UPON A PARTICULAR MATTER
It is trite law that where the adversary fails to cross-examine a witness upon a particular matter the implication is that he accepts the truth of that matter as led in evidence. See Oforlete v. State (2000) LPELR – 2270 SC. PER JAMES SHEHU ABIRIYI, J.C.A.
ON WHOM LIES THE BURDEN OF PROOF OF TITLE TO LAND
The burden of proof of title to land is on the party who asserts or claims that title. In other words, where a plaintiff claims title to land, the burden is on him to prove title. Accordingly where a plaintiff fails to prove title to the land in dispute which is relevant to his relief must fail. This is because he fails to lead credible evidence in vindication of his relief. PER MUHAMMED LAWAL SHUAIBU, J.C.A
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
BASSEY EDET AKPAN APPELANT(S)
And
JOSEPH EFFIONG UDO RESPONDENT(S)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 21st June, 2016 in the High Court of Akwa Ibom State holden at Uyo. In the High Court (the Court below), the Appellant was the plaintiff. The Respondent and one other person were the Defendants. The Respondent was the 1st Defendant.
The claim of the Appellant was for declaration of title to the land in dispute, general damages for trespass and an order of perpetual injunction restraining the Respondent and one other defendant from further acts of trespass into the land.
The case of the Appellant in the Court below was short. According to him, he had earlier allowed the Respondent to use his land. The Respondent returned the land to him at his request after twenty years. After returning the land to him, the Respondent later stealthily returned into the land and started excavating it preparatory to putting up a structure.
In his defence, the Respondent denied returning into the land. According to the Respondent, the land he was in possession of belonged to the 2nd Defendant. It shared boundary with the land of the Appellant.
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The Court below considered the evidence led by both parties as well as addresses of counsel for the parties and dismissed the claim of the Appellant.
The Appellant immediately proceeded to this Court by a notice of appeal dated and filed on 22nd July, 2016. The notice of appeal contains two grounds of appeal. From the two grounds of appeal, the Appellant presented the following two issues for determination:
1. Whether the learned trial Judge discharged his duty to evaluate the evidence in this case by stating that the Claimant failed to discharge the burden of proof placed on him by law.
2. Whether the learned trial Judge was right to have admitted Exhibit C, the Irrevocable Power of Attorney purportedly executed by Late Mrs. Arit Akpan Oku when same was not admissible in law to transfer title to landed property.
The Respondent did not adopt the Appellant’s issues for determination as he claimed. Instead he formulated the following two issues for determination:
4.01 Whether the trial Court properly evaluated the evidence before coming to conclusion that the Appellant failed to discharge the burden of proof placed on him.
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4.02 Whether Exhibit ‘C’ which is the power of attorney donated by the 2nd Defendant to the 1st Defendant was admissible in law and if not whether the Court was right to have decided the case in favour of the Respondent.
On issue 1, learned counsel for the Appellant submitted that the Court below erred when it held that the Appellant did not discharge the burden of proof on him.
It was his contention that the fact of handing over the land back to Appellant by the Respondent was proof of ownership of the land in dispute. That the Respondent had the opportunity of telling the Appellant that he was also using the 2nd Defendant’s land but did not do so. By this conduct, the Respondent, it was argued, caused the Appellant to believe that the portion of land in dispute belonged to him (Appellant). The Respondent, it was submitted, was therefore caught by the doctrine of estoppel by silence.
It was further argued that the Respondent only “woke up” a few months before the Appellant instituted this action to produce an irrevocable power of attorney which it was submitted, does not avail him. The Court was
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referred to Alade v. Alemuloke (1988) NWLR (pt. 69) 207.
On issue 2, it was submitted that the Court below ought not to have admitted the irrevocable power of attorney as Exhibit C in this case or place reliance on it.
It was submitted that for Exhibit C to have any evidential value, it ought to have been registered by the Respondent. It was submitted that failure to register Exhibit C under the relevant law automatically rendered it inadmissible for the purpose it was meant by the Respondent.
It was submitted that instruments that are registrable but were not registered are admissible in evidence only as evidence of payment of purchase price or fees but not for the purpose of creating or establishing title to land. The Court was referred to Atanda v. Hon. Commissioner for Lands And Housing, Kwara State (2017) LPELR – 42346 (SC). It was submitted that Exhibit C does not qualify as an instrument of title to land.
On issue 1, learned counsel for the Respondent contended that the Appellant raised the issue of estoppel by silence because the Respondent testified for the Appellant in suit No. HU/589/2011 between the Appellant and Ekpe Okon
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Edet over the Appellant’s land which the Respondent had used for twenty years but that the Respondent was not a party to the suit. The land in dispute in that case was the land that Appellant had given to the Respondent to cultivate. Therefore there was no relationship between the two suits. The Court below, it was submitted, considered this issue before coming to the conclusion that there was no nexus between that case and the one now on appeal. Estoppel, it was submitted, could not apply in this case.
It was submitted that the Appellant need not have been informed by the Respondent that he (Respondent) was on the land of the 2nd Defendant unless the Appellant did not know his own land.
On issue 2, learned counsel for the Respondent contended that the Appellant only objected to the admissibility of Exhibit C for non compliance with the Illiterates Protection Law and the Court below ruled on the objection.
It was submitted that the Appellant did not seek leave to raise this issue of registrable instrument since it was a fresh issue. The Court was referred toSun Publishing Ltd. v. Aladmma Medicare Ltd (2016) 9 NWLR (pt. 1518) 557 at 592
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– 593; Nduul v. Wayo (2018) 16 NWLR (pt. 1646) 548 at 579 and E-G (ATS & Sons v. B.E.C. (Nig) Ltd (2016) 18 NWLR (pt. 1647) at 32.
The power of attorney, it was submitted, does not confer title. Therefore, it is not a registrable instrument. The Court was referred to the definition of power of attorney in Black’s Law Dictionary.
Assuming the power of attorney is a registrable instrument, it could be admitted to show an equitable right, it was submitted. It was submitted that Exhibit C could be admitted for the purpose of showing the source of equitable right of the Respondent.
It was further submitted that even if Exhibit C was not admissible, it would still not affect the outcome of the case as there is no dispute that the 2nd Defendant owned the land that had boundary with the land of the Appellant.
The main claim of the Appellant in the Court below was for a declaration of title to the land in dispute. It is trite law that declaratory reliefs are not granted as a matter of course or on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief.
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See Anyaru v. Mandilas Ltd (2007) 4 SCNJ 288; Chukwumah v. S.P.D.C (Nig) Ltd (1993) LPELR – 864 SC and Matanmi & 4 Ors. v. Dada & Anor (2013) LPELR.
In its judgment, the Court below found “nothing credible to place in the imaginary scale of justice in favour of the claimant who failed to make a prima facie case.” I agree. It is common ground between the parties that the Respondent requested for the Appellant’s land. The Appellant granted the request and the Respondent used the land for twenty (20) years. The Appellant demanded for the return of his land by the Respondent. The Respondent readily returned the land to the Appellant. The Appellant now claims that the Respondent surreptitiously re-entered the land. Surreptitiously indeed. If the Respondent was the trespasser, the Appellant claims he is, he would not even have requested the use of the Appellant’s land in the first place. He would not have returned it to Appellant when the Appellant requested him to so do. The Appellant’s witness to the so called trespass into his land was PW2 (his son) who under cross examination, said that all he knew about the land was what the
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father (the Appellant) told him. This therefore is no evidence in support of the Appellant’s case.
Although the Respondent did not counterclaim, he pleaded and testified to the fact that he was granted possession of the land in dispute by the 2nd Defendant (now late), Mrs. Arit Sunday Akpanoku. DW3 called by the Respondent also stated that the land in dispute was given to the Respondent by the 2nd Defendant. Neither the Respondent as DW1 nor the DW3 was cross-examined on this crucial piece of evidence. It is trite law that where the adversary fails to cross-examine a witness upon a particular matter the implication is that he accepts the truth of that matter as led in evidence. See Oforlete v. State (2000) LPELR – 2270 SC. As the DW1 and DW3 were not cross-examined on their evidence that the land in dispute was given to the Respondent by the 2nd Defendant, it amounted to admission of this vital piece of evidence. The Appellant’s case which he did not establish was finally demolished by the evidence of the Respondent and his witnesses.
Issue 1 is therefore resolved against the Appellant and in favour of the Respondent.
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It is clear from the resolution of issue 1 that issue 2 has become merely academic. I will only labour in vain if I consider it. Courts of law do not deal with academic matters. See Amanchukwu v. Federal Republic of Nigeria (2009) LPELR – 455 SC page 5 paragraph A. As learned counsel for the Respondent rightly pointed out even if the power of attorney was not admitted it would still not affect the outcome of the case.
Learned counsel for the Appellant submitted that the power of attorney was not registered under “the relevant law”. He did not refer the Court to that relevant law.
The issue of Exhibit C being a registrable instrument which was not registered was not the basis on which the Appellant opposed the admission of the document in the Court below. The objection was on the alleged non compliance with the Illiterates Protection Law and the objection was overruled. Only an issue pronounced upon by a lower Court is subject of appeal. See Ajaokuta Steel Co. Ltd v. G. I. & S. Ltd (2019) 8 NWLR (pt. 1674) 213 at 226.
Issue 2 is also resolved against the Appellant and in favour of the Respondent.
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Both issues having been resolved against the Appellant and in favour of the Respondent, the appeal is dismissed for lacking in merit.
Respondent is awarded N100,000.00 costs which shall be paid by the Appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. I agree with the reasoning and conclusion reached in the judgment.
I also dismiss the appeal.
I abide with the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, James S. Abiriyi, JCA just delivered. I entirely agree with the reasoning and conclusion.
The burden of proof of title to land is on the party who asserts or claims that title. In other words, where a plaintiff claims title to land, the burden is on him to prove title. Accordingly where a plaintiff fails to prove title to the land in dispute which is relevant to his relief must fail. This is because he fails to lead credible evidence in vindication of his relief.
The appellant who was the plaintiff at the lower Court having failed to prove title
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to the land in dispute which was relevant to his relief must necessarily fail. This appeal is therefore moribund and is destined to fail.
I too dismiss the appeal and abide by all the consequential orders, including the order as to costs.
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Appearances:
BASSEY OFFIONG, ESQ. For Appellant(s)
EFFIONG UDOFIA, ESQ., served hearing notice but did not attend Court For Respondent(s)
