ALHAJI AHMADU BELLO v. HAJIYA HAFSAT BIRMA
(2014)LCN/7099(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of April, 2014
CA/K/219/2007
RATIO
CONDITIONS TO BE SATISFIED TO ESTALISH A VALID SALE OF LANDED PROPERTY
It is trite that a valid sale of landed property cannot be established without proving payment of money accompanied by acknowledgement of receipt and execution of Deed of Assignment or Conveyance in favour of the purchaser. See Oyebamiji v. Lawanson (2008) 15 NWLR (Pt.109) 122. PER DALHATU ADAMU, J.C.A.
EVIDENCE: WAYS TO PROVE TITLE OR OWNERSHIP TO LANDED PROPERTY
Under the law and as rightly held by the lower court there are five established/identified way of proving title or ownership to landed property. These are as follows:-
(1) Traditional evidence
(2) Production of documents of title
(3) Acts of ownership over a sufficient length of time warranting an inference of ownership.
(4) Acts of long possession and enjoyment of the property.
(5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land is the owner of the one in dispute.
See Jules v. Ajani (2001) FWLR (Pt.45) pg. 763 at 772 Para. D and Akusobi & Ors. v. Obinechie (2004) 2 NWLR (Pt.785) pg.355; Olukoya v. Ashiru (2006) All FWLR (Pt.322) Pg.1479 at 1495, Paras. D – G, Nruama v. Ebuzeome (2007) ALL FWLR (Pt.347) pg. 723 at pages 737 – 738, Paras. C – D. PER DALHATU ADAMU, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ALHAJI AHMADU BELLO Appellant(s)
AND
HAJIYA HAFSAT BIRMA Respondent(s)
DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Kaduna State per Hon. Tanimu Zailani, delivered on 20/12/2005.
The appellant instituted the action claiming in the amended Statement of Claim the following:-
(1) A DECLARATION that the plaintiff is the rightful and beneficial owner of the property known and described as No.30 Conakry Avenue, Malali Low Cost, Kaduna.
(2) AN ORDER that the Defendant should forthwith vacate and deliver up possession of the said property to the plaintiff.
(3) A PERPETUAL INJUNCTION restraining the defendant more particularly her agents, servants, privies or anyone claiming through her by any authority expressed or implied from further trespassing or taking possession or doing any act or thing inconsistent with the right and interest of the plaintiff over the property herein before described.
(4) DAMAGE OF MESNE profit at the rate of N50,000.00 per annum commencing from November, 1993 until possession is finally delivered.
(5) For such further order or orders as this Honourable Court may deem fit to make in the given circumstances.
The Respondent equally filed a further amended Statement of Defence wherein she denied all the claims of the Appellant and counter-claimed as follows:-
(a) A Declaration that the Defendant is the rightful and beneficial owner of the properly known and described as No.30 Canakry Avenue, Malali Low Cost, Kaduna.
(b) A PERPETUAL INJUNCTION restraining the plaintiff by themselves, their agents, servants, assigns or whosoever from trespassing into the said property or otherwise disturbing the Defendant from peaceful occupation and enjoyment of same.
(c) General Damages of N500,000.00 (five hundred thousand Naira) only.
The Appellant thereafter filed a Amended Reply to the Respondent counter claim dated 3/12/2004 wherein he denied paragraphs 12, 13 and 14 of the Respondent’s counter claim and puts the latter to the strictest proof thereof.
Upon hearing the witnesses of both the plaintiff and defendant and evaluating the evidence before it the lower court entered judgment dismissing the claim of the Appellant in the following terms:-
1) That the plaintiff’s case is dismissed as the plaintiff has failed to prove his claim as required by law.
2) That the Defendant is the rightful and beneficial owner of the property known and described as No. 30 Conakry Avenue, Malali Low Cost, Kaduna.
3) That the plaintiff by themselves, their agents, servants, assigns or whosoever shall be, and are, perpetually restrained from trespassing into the said property or otherwise disturbing the Defendant from peaceful occupation and enjoyment of same.
4) That the N500,000.00 general damages claim (by the Defendant is dismissed.
Aggrieved by the judgment of the lower court, the appellant filed a notice of appeal against the Respondent. The said Notice of Appeal is at pages 290 -291 of the Record of Proceedings, the said Notice of Appeal is dated 21/12/2005. And by Motion on Notice dated and filed on 3/2/2009, the Appellant amended his Notice of Appeal wherein he raise 8 (eight) grounds.
From his eight (8) grounds of appeal in the amended Notice of Appeal, the Appellant formulated three issues for determination of this appeal as follow:-
(1) Whether the Honourable Judge was right in holding that at the time when PW2 and the Appellant entered into the agreement in respect of the property in dispute the initial agreement between PW2 and the Respondent was valid and subsisting.
(2) Whether the appellant has not sufficiently proved to the property in dispute against the respondent as to warrant judgment in his favour.
(3) Whether the learned trial judge did not erred in law when he entered judgment in favour of the respondent without the respondent leading probative evidence to prove her counter claim.
The Respondent in this matter on the other hand distilled two issues for determination to wit:-
(1) Whether considering the claim, the facts, the evidence, the lower court was right in dismissing the claim.
(2) Whether considering the claim, the facts and the evidence, the lower court was right in granting the reliefs in the counter claim.
Upon considering the above issues formulated by both counsels, I am of the view that the issues formulated by the respondent counsel have dealt with issues concerning the matter elaborately having pointed out all the issues in contention and I will therefore consider same as issues for determination in this matter.
ISSUE ONE – WHETHER CONSIDERING THE CLAIM, FACTS AND EVIDENCE, THE LOWER COURT WAS RIGHT IN DISMISSING THE CLAIM.
At this point, I will consider whether the lower court was right in dismissing the claim of the Appellant having regards to the circumstance of the case.
The Appellant submitted that it is in evidence that the Respondent had never paid the agreed consideration for the house of the vendor (PW2) as the Respondent was only able to pay an advance sum which was returned to her by the said vendor as indicated in the Exhibits. He submitted that it is trite law that for a sale of land to be valid between two parties, certain ingredients must be fulfilled amongst which is consideration and the said consideration is known as such ingredient when it is fully paid otherwise it only remains an “advance”. He contended that consideration forms an integral part of a contract and without such the contract cannot be valid. He referred the Court to the case of Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) p.163 at 189, Para. D. On the premise of the above stated case, the appellant counsel submitted that the lower court erred when it held that there was a valid and subsisting contract between the vendor and the Respondent and that the fact that the latter paid an advance cannot be said to be consideration for the purchase of the property in dispute. He further submitted that it is trite law that where a purchaser of landed property paid only an advance and failed to pay the balance, there cannot be a valid agreement. He referred the court to the case of Manya v. Idris (2001) 8 NWLR (Pt.716) 627 at 637 E – G.
Appellant counsel further submitted that in a situation where the purchaser of a landed property failed to pay the consideration, the vendor of such property has the option of either treating the agreement as vitiated or seek to enforce the agreement by specific performance. He referred the Court to the case of Chabasaya v. Anwasi (supra) at pg. 187 Paras. F – H.
He submitted that base on the premise of the above cited case that the act of the vendor by exercising the option of re-selling the property to the Appellant cannot be said to invalidate as the Respondent act of failing to pay the consideration had already invalidated the contract. He referred the court to the case of Saka v. Ijuh (2010) 4 NWLR (Pt.1184) pg.405. The Respondent in this matter even went extra length to receive the refund of her advance payment from the vendor thereby shutting down any assumption that a contract existed between her and the PW2 (vendor) existed, he referred the Court to page 266 of the record of proceedings and Exhibit 5. He further submitted that the failure of the Respondent to dispute the refund of the advanced fee and non objection to the admissibility of Exhibit 5 into evidence is an act of admission and thus vitiates any presumption of assumption of the existence of a valid contract between PW2 (vendor) and the Respondent.
The Appellant Counsel also submitted that the Respondent did not in anyway present any evidence of payment nor deed of assignment or any agreement between herself and the PW2 (vendor) and it is trite law that a fact that is pleaded must be supported by cogent and reliable evidence otherwise it will be deemed abandoned. He referred this Court to the case of Olusanya v. Osinleye (2013) 12 NWLR (Pt.1367) 148 at 168 Paras. B – E.
Learned Counsel submitted that based on the above cited principle, the lower Court was in great error when it held that the contract between the Respondent and PW2 was subsisting and valid. This Court is urged to agree with the appellant that where a party to an agreement failed in performing its obligation under an agreement such a party is barred from seeking to benefit from it and to resolve the issue in favour of the Appellant.
Appellant Counsel further submitted on whether he had not sufficiently proved title to the property in dispute against the respondent as to warrant judgment in his favour. It was his submission that he had paid and validly purchased the property in dispute from PW2 and that the fact is supported by evidence to which the respondent did not adduce better evidence to. He referred this Honourable Court to page 263 of the record of proceedings. He further submitted that PW2 has legally transferred title to him as evidenced by Exhibit 6 which was made due to the application by PW2 for consent of KSDPC to grant same to the appellant.
Learned Counsel submitted that it is a well known principle of law that there are 5 methods of proving title to land and he referred the Court to the case of Akusobi & Ors. v. Obineche (2004) 2 NWLR (Pt.857) p.355.
In the instant case, the appellant predicated his title on the production of his title documents which was admitted and marked as Exhibit 3 and 6. Counsel submitted that the Honourable Judge of the lower court was wrong as the exhibits were made consequent to two events, that is the failure of the respondent to pay up the balance of agreed purchase armed PW2 with the option of treating the agreement as vitiated and he cited the case of Chabasaya v. Anwasi (supra) at pg. 187, Paras. F – H and thus the PW2 have the right to sell the property to any interested purchaser as held in the above cited case.
Learned Appellant Counsel further submitted that the lower court judge was in error when he concluded that the approvals of Exhibits 3 and 6 dated 1995 is wrong and unsustainable. That even though it is the law that documents made during the pendency of a suit are excluded by the provision of the Evidence Act, there is an exception to the said rule and cited the case of N.S.I.T.F.M.B. v. Klifco Nig. Ltd. (2010) 13 NWLR (1211) 307 at 334 – 335 Paras. F – B. He submitted that KSDPC being the maker of Exhibit 3 had no pecuniary interest as it acted purely on official capacity and that since the document is relevant it ought not to be disregarded by the lower court in reaching its decision.
It was further submitted that it is an undisputed fact that vendor (PW2) has a good title to transfer to the Appellant which he did and KSDPC consented to the transfer by approving Exhibit 6 through the production of Exhibit 3 and thus contended that the Exhibit 3 is valid as it emanated from the appropriate authority and was duly registered. He cited the case of Bello v. Sanda (2012) 1 NWLR (Pt.1281) pg. 219 at 241 – 242 F – C and that of I.B.B. Ind. Ltd. V. Mutunci Co. (Nig) Ltd. (2012) 6 NWLR (Pt.1297) 487 where in the conditions to be fulfilled were illustrated, he further argued that the fact that the document was made in 1995 does not matter at all as the parties are at liberty to perfect their engagement when they deem it fit to do so.
The Appellant Counsel further argued that the lower court was in error when it held that the agreement entered between the appellant and the vendor (PW2) was not pleaded as the said agreement was mentioned in paragraph 9 of the further amended statement of claim of the appellant, he referred the court to page 196 of the record of proceedings and he equally submitted that the position of the law is that a document need not be specifically pleaded. He referred the Court to the case of Okonkwo v. C.C.B. (Nig) Plc (2003) 8 NWLR (Pt.822) 347 at 412 – 413 Paras C – D and Niran v. NEPA (2004) 14 NWLR (Pt.786) 30 at 49 Paras. B – D. Counsel further submitted that the position of the law is that where oral testimony of a witness is supported by documentary evidence, such oral evidence becomes credible, he referred the court to the case of Jolasun v. Napoleon Bangboye (2010) 18 NWLR (Pt.1225) 285 at 318 – 319 Paras. H – A and he further stated that the evidence of both the Appellant and the vendor (PW2) which is being supported by the agreement rejected by the lower court to be giving much weight and credibility by the lower court and urged this Honourable Court to so hold.
Appellant counsel finally concluded that the respondent had not put up any evidence to puncture the authenticity of the appellant’s instrument of title and submitted that the appellant has proved a better title than the Respondent as the latter did not challenge the title conferred on the appellant. He then urged the court to resolve the second issue in favour of the appellant and dismiss the decision of the trial court.
The Respondent Counsel on the other hand submitted that it is not in doubt and not disputed that the respondent was in possession since 1993 and that the PW2 admitted selling the properly to the respondent before offering it again for sale, that the marriage proposal and settlement were not denied. He further submitted that there is nothing in the testimony of the witnesses called by the Appellant to tilt the balance in his favour.
ISSUE TWO
On this issue appellant submitted as to whether the appellant has not sufficiently proved to the property in dispute against the respondent as to warrant judgment in his favour. On the above cited issue, appellant counsel submitted that it is a known principle of law that he who asserts must prove and that even though the Respondent asserted that she purchased the property in dispute before the trial court, it is in evidence that no agreement between the latter and vendor (PW2) was tendered to support the claim as the Respondent’s case was that she derived her title from PW2 and Alhaji Salihu Bello, her fiancé. The trial court relied on the statement of the Respondent that a memo from a company gave her title. i.e. Exhibit D1.
Learned Counsel submitted that Exhibit D1 has fallen short of the requirement that a title document ought to possess, that the said Exhibit is merely a narration of facts which transpired after the Appellant has purchased the house from PW2 and was written from a company that is not a party to the sale. He urged the court to discountenance the said document. He further argued that the company was not an agent of the owner of the house and could not have been competent to transfer title and the author did not state in what capacity he was acting as to show whether he has the right to give or pass title of the property and thus stated that the case is a clear case of (Nemo dat quod non habet) i.e. nobody gives what he does not have, he referred the court to the case of Oronti v. Onigbajo (2012) 12 NWLR (Pt.1313) p.23. He finally urged this Court to overturn the judgment of the lower court on this error which has occasioned a serious miscarriage of justice.
Learned Appellant Counsel further submitted on Exhibit D1 that assuming without conceding that the said Exhibit D1 is considered cogent and reliable as to who actually made the payment for the purchase of land, he contended that the said letter has shown that the Appellant made full payment for the house which was confirmed by Exhibit 6. He again submitted that the Respondent stands that she made advance payment to Alhaji Salihu Bello on 17th November, 1993 is not conclusive as it was not confirmed if such payment was actually made to the vendor PW2 nor was the said Alhaji Salihu Bello acting as the vendor’s agent and that the said payment was made after the Appellant has already made payments for same house. Counsel submitted that the Appellant has better title on the Respondent on the principle of he who is first in time has better title in law and that the holding of the lower court that the respondent acquired title based on Exhibit D1 is in error and as such the judgment ought to be overturned by this Honourable Court.
Learned Appellant Counsel further submitted that based on the principle of he who is first in time has better title in law the Respondent had failed to prove her title as the vendor himself testified that he has refunded the advance payment made by the latter when she failed to pay the balance and same was confirmed by Exhibit 5, he referred the court to pages 265 – 266 of the record of proceedings. That the failure of the Respondent to prove her title goes to the root of the Respondent’s counter claim and it was further argued that the Respondent has failed to prove her title by any of the five enumerated means of proving title and that her case is not in any way remotely connected to any of such means. That the Respondents reliance on act of possession is not sustainable as that is not a conclusive where a party has established a better title. Furthermore the omission of the Respondent to prove how she derived her title from the root of title of PW2. He referred the Court to the case of Ngene v. Igbo (2000) 4 NWLR (Pt.651)133 at 148, B. In the instant case, the respondent claim that she derived her title from PW2 was denied by the said PW2 when he testified in evidence at page 266 of the record of proceedings. Learned Counsel finally submitted that the Respondent has failed to discharge the onus of proving her title based on her counter claim while the Appellant has adequately discharged the onus of his title and the failure of the Respondent to discharge hers leaves this Honourable Court with no option but to declare the Appellant the rightful owner of the house. Learned Counsel finally urged this Honourable Court to resolve issue three in favour of the Appellant as the Respondent has failed totally in proving title to the house in dispute.
The Respondent however argued that the lower court was right in granting the reliefs in the counter claim as it was not in doubt and was not disputed that she was in possession, she had defended suits in Rent Tribunal, Upper Sharia Court ad High Court and that considering the above facts the lower court was right in granting the reliefs in the counter claim.
ISSUE ONE
At this point, I will consider the issue of whether the lower court was right in dismissing the claim of the appellant with regards to the surrounding claim, facts and evidence of the case at hand. Under the law and as rightly held by the lower court there are five established/identified way of proving title or ownership to landed property. These are as follows:-
(1) Traditional evidence
(2) Production of documents of title
(3) Acts of ownership over a sufficient length of time warranting an inference of ownership.
(4) Acts of long possession and enjoyment of the property.
(5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land is the owner of the one in dispute.
See Jules v. Ajani (2001) FWLR (Pt.45) pg. 763 at 772 Para. D and Akusobi & Ors. v. Obinechie (2004) 2 NWLR (Pt.785) pg.355; Olukoya v. Ashiru (2006) All FWLR (Pt.322) Pg.1479 at 1495, Paras. D – G, Nruama v. Ebuzeome (2007) ALL FWLR (Pt.347) pg. 723 at pages 737 – 738, Paras. C – D.
In the instant case, the appellant’s claim is that he acquired his title on production of tile document. The appellant claim is that he bought the property from Augustine Akande in 1993 for the sum of N440,000.00 and upon making payment, Mr. Augustine Akande applied to the Kaduna State Development and Properly Company Limited via a letter dated 3/08/1993 (Exhibit 6) to transfer his ownership of the house to the appellant and consequent upon the application a Deed of Assignment (Exhibit 3) was entered into between Kaduna State Development Property Company Limited.
The Appellant also tendered Exhibits 1 and 2 which are evidence of payment for change of ownership and stamp duty and rates for 1996 – 2000 in respect of the properly in dispute. The position of the law in this instance therefore is that, in order to prove valid sale or transfer of landed property having legal title, the party proving the sale must show evidence of payment of money accompanied by acknowledgement of receipt and execution of a Deed of Assignment or Conveyance in favour of the purchaser. See Erinosho v. Owokoniran (1965) NMLR 479, Folami v. Dorujaye (1988) NWLR (Pt.70) 351. On the premise of the above holding the Appellant in the instant case gave evidence by himself and the vendor that the latter purchased the property for the sum of N440,000.00, the sum of N25,000.00 was paid in cash and a cheque of N435,000.00 was also presented to the vendor. The Appellant in paragraph 9 of his Amended statement of claim pleaded relevant fact in relation to an agreement assigning the unexpired residue of the rights of the vendor to the appellant on 3/8/1993. However the said agreement was not tendered before the lower court as same was not admitted in evidence on the grounds that it was not pleaded. However the position of the law is settled that where oral testimony of a witness is supported by documentary evidence, such oral evidence becomes credible. See Jolasun v. Napoleon Bangboye (2012) 18 NWLR (Pt.1225) 285 at 318 – 319 Paras. H – A. Base on the premise of the above case, I hereby admit the sale agreement in evidence.
The lower court further held that from the evidence adduced before it, the agreement between the Appellant and the vendor was entered after or agreement between the defendant and the vendor entered into sometimes in February, 1993. And that notwithstanding the agreement between the Defendant and the vendor, the latter went ahead to enter into another agreement with the appellant reselling the same properly to him. At this juncture, it is pertinent to clarify whether at the time the vendor sold the property to the appellant he had a right to do such and whether there was any binding contract between the vendor and the respondent having regards to the circumstance of the case at hand.
From evidence adduced by the parties, the respondent stated at page 283 of the record of proceedings that she purchased the property in February 1993 from the vendor for the sum of N350,000.00 and made a part payment of N230,000.00 and the vendor thereafter refused to take the balance and she subsequently reported the matter to the police where it was discovered that the vendor had re-sold the property and that it was subsequently agreed that she should pay the amount agreed between the vendor and the third party and title documents transferred to her. She then paid N320,000.00 in furtherance of the agreement.
The lower court was of the view that it was generally wrong for the vendor to re-sell the property to the Appellant or any other party while he had a valid and existing contract with the Respondent and thus no contract between him and the defendant was enforceable.
From the evidence adduced at the lower court, the vendor who testified on p.265 of the record of proceedings as PW2 gave evidence that sometime in February, 1993 he gave notice that he wanted to sell his property No. 30 Conakry Avenue, Malali, Kaduna. That the defendant approached him with an interest to buy the property and they both reached an agreement of the purchase price at N350,000.00. The Respondent then paid the sum of N60,000.00 and was given two weeks to pay the balance of the money but after two weeks she brought N100,000.00.
That the Respondent defaulted to pay the purchase price within 2 weeks as agreed up by parties and at a stage she was only able to pay N230,000.00. That in August, 1993 the vendor got another buyer in person of the Appellant after waiting for a period of 7 months for the Respondent to perfect her contract who offered to pay N440,000.00 and he did pay the said consideration. That the vendor then offered to refund the respondent the sum she had deposited in respect of the properly but she refused to collect same and she afterwards reported the matter to the Malali Police Station where a draft (Exhibit 5) was paid to her. The vendor testified that he did not pass any title document to the Respondent in respect of the property as he had transferred same to the Appellant. He further testified that he does not know Alhaji Salihu Bello or Bello properties Ltd. As submitted by the Appellant it is trite in law that for a sale of land to be valid between parties, certain ingredient must be fulfilled and consideration is one of such ingredient and it can only be known as such only when it is fully paid otherwise it remains an advance as is the position of the instalment payment of the Respondent and in a situation where a consideration is not furnished in a contract, same can be said to have been breached and unenforceable, see Chabasaya v. Anwas (2010) 10 NWLR (Pt.1201) P.163 at 189, Para. D,
And in such a situation above where the purchaser only paid advance and failed to pay the balance, the position of the law is that there cannot be a valid agreement, see Manya v. Idris (2001) 8 NWLR (Pt.716) 627 at 637 E – F and in such a situation a vendor can either treat the contract of sale as existing and such for specific performance or he can elect to treat the contract as at end, i.e. no longer exist, see Chabasaya v. Anwasi (supra). The vendor in the instant case opted to treat the contract as one no longer existed and re-sold the property to the Appellant and refunded the Respondent her part-payment.
Moreover the law is trite that failure of a purchaser to balance an agreed consideration renders a contract initially entered into as invalid. See Saka v. Ijuh (2010) 4 NWLR (Pt.1184) pg. 405.
Having seen the position of the law on the ingredients for a valid sale of land and the options of a vendor where a purchaser fails to fulfill the consideration, then can it be said that there was a valid sale between the vendor and the respondent in the instant case having regards to the surrounding circumstance of the case.
I will at the juncture fail to agree with the holding of the learned trial judge on page 282 of the record of proceedings wherein he held that it was generally wrong for vendor to re-sell the property to the plaintiff or any other party while he had a valid and existing contract with the Defendant and that when the vendor applied to transfer the title on 03/08/93 there was a valid contract between him and the Defendant. I wonder how, when the said Defendant refused to fulfill her terms of the contract by paying the entire purchase price.
It is trite that a valid sale of landed property cannot be established without proving payment of money accompanied by acknowledgement of receipt and execution of Deed of Assignment or Conveyance in favour of the purchaser. See Oyebamiji v. Lawanson (2008) 15 NWLR (Pt.109) 122.
It is clear from the foregoing that the vendor has an interest to transfer to the appellant as at 03/08/93 and that the said transfer was valid. Furthermore the Appellant has proved his title to the properly No.30 Conakry Avenue, Malali, Kaduna as he had validly purchased same from the vendor on 03/08/93. It is trite law that there were 5 methods of proving title to land, as in the instant case the Appellant predicated his title on production of his title documents which were admitted and marked as Exhibits 3 and 6 even though the lower court held that they were made after the Respondent had acquired interest, How? Moreover it is settled law that a claimant in a title to land needs to plead only any of the five ways by which title to land can be proved. See Irolo v. Uka (2002) 14 NWLR (Pt.786) Pg. 195 at pg.237, Para D-F.
The lower court further held on page 283 of the record of proceedings that it is difficult to rely on Exhibit 3 to find title in favour of the plaintiff in view of other pieces of evidence available in the instant case. The court cited an example of Exhibit D1, an internal memorandum which shows among other things that possession of the property and all other relevant title document would pass to the new owner, i.e. the respondent. At this point, it is pertinent to again discuss the documents that can pass title to land both Exhibits 3 and D1 are documents that can pass title and since same are all documents, are they documents conferring title to land in law on the premise of the principle in the case of Ezeigwe v. Awudu (2008) 11 NWLR (Pt.1097) 158, 175 – 176. Exhibit D1 does not fall as a title document.
Exhibit D1 is not a title document as it is merely an internal memo of a Company and the law is trite that the only document that can prove any passing of title would be a Conveyance of a Deed of Assignment. See Ezeigwe v. Awudu (supra). The inference of the lower court that Exhibit 3 was made during the pendency of the suit in order to support the Appellant case is wrong as the application to KSDPC for consent to transfer was made on 3/8/93 by the vendor and the said Exhibit 3 was made consequent upon the said application and furthermore the said Exhibit is a valid document that proves passing of title based on the premise of above cited case of Ezeigwe v. Awudu (supra).
Likewise Exhibits D2 and D3 are not title documents also.
The lower court was of the view that even though the said Exhibits are not title documents, they give credence to the Defendant’s evidence. It held that Exhibit D2 arose because the marriage was aborted by the Respondent, that the expenditure was a result of preparation for the marriage and that the exhibit has put to rest the fact that the properly was purchased by the Defendant and she was using same as her residence, i.e. occupying it as at January 1993 and thus the exhibit corroborates the Defendant’s evidence and that Exhibit D3, a Court Summons issued by the Upper Area Court Daura Road, Kaduna is a piece of evidence that strengthens Exhibit D2 as Alhaji Salihu Bello sued the Defendant to recover the sum of N300,000.00.
However the lower court rightly held on page 287 of the record of proceedings that the issue in the matter at hand is that of title in respect of the property in dispute, who has title between the Appellant and the Respondent? The question to ask here therefore are, the Exhibits D1, D2 and D3 tendered by the respondent documents tendered to prove her title in the instant case, of course the answer to this question will be in the negative as none of the said Exhibits D1, D2 and D3 are title document and the law is settled that where any grant of landed property has been reduced into a form of document, no evidence may be given of such grant except by the production of the documents itself or secondary evidence of its contents. See the provisions of Section 128(1) of Evidence Act as amended and F.A.T.B. Limited v. Partnership Investment Company Limited (2004) FWLR (Pt.192) 167.
In the present circumstances, it is not enough for the Respondent to rely on Exhibit D1, D2 and D3 to prove her title to the property, she must go further to produce either Deed of assignment or Conveyance executed in her favour to prove her title and even her being in possession of the property does not avail her of better title as the law is that adverse possession, however long does not confer title on the possessor against the rightful holder of title. See Atunrase v. Sunmola (1985) 1 NWLR (Pt.1) 105.
On the premises of the analysis of evidence on record in the foregoing, I must resolve issue one against the Respondent as the lower court was wrong in dismissing the claim of the appellant with regards to the surrounding claims, facts and evidence of the case at hand. Issue one is therefore resolved in favour of the Appellant.
ISSUE TWO
At this point, I will consider whether the lower court was right in granting the reliefs in the counter claim. It is the submission of the learned Respondent Counsel that it is not in doubt and was not disputed that the Respondent was in possession and she had to defend suits in the Rent Tribunal, Upper Sharia Court and High Court. He submitted that considering all the facts the lower court was right in granting the reliefs in the counter claim.
The Respondent counter claimed against the plaintiff as follows:
(a) A Declaration that the Respondent is the rightful and beneficial owner of the property known and a described as No. 30 Conakry Avenue, Malali Low Cost, Kaduna.
(b) A perpetual injunction restraining the plaintiff by themselves, their agents, servants, assigns and whatsoever from trespassing into the said property or otherwise disturbing the Defendant from peaceful occupation and enjoyment of same.
(c) General Damages of N500,000.00 (Five hundred thousand Naira) only.
From the evidence adduced at the lower court, the Respondent traced her title from PW2 and Alhaji Salihu Bello and that she has possession, the lower court held that her evidence is relevant as the plaintiff has failed to successfully and convincingly explain how the Defendant came into possession of the property since 1993. However it is trite law that the failure of the Appellant to successfully and convincingly explain how the Defendant came into the possession of the property, same does not arm her with automatic title to property as adverse possession however long does not confer title on the possessor against the rightful holder of title. See Aturase v. Sunmola (1985) 1 NWLR (Pt.1) 105, Ngene v. Igbo (2000) 4 NWLR (Pt.651) 133 at 148 B.
Furthermore Exhibits D1, D2 and D3 do not qualify as title documents under the law as it is settled law that the only document that can prove any passing of title would be Conveyance or Deed of Assignment. See Ezeigwe v. Awudu (supra). Even the trial lower court judge held that ‘Exhibits D2 and D3’ may well be and are not documents, they give credence to the Defendant’s evidence and thus held that upon putting the facts proved by each side will put on an imaginary scale, the scale will surely tilts on the side of the Respondent and that the Defendant had proved her counter claim as she had discharged the onus cast on her by Section 137 of the Evidence Act supra.
Having considered the claim of the Respondent in proving the counter claim and the holding of the lower court, I am of the view that the Respondent has failed to prove her counter claim and hence the court is left with no option but to declare the Appellant as the right owner of the property No. 30 Conakry Avenue, Malali, Kaduna. Thus issue two is resolved in favour of the Appellant.
With regards to the claim of the Appellant for damages of mesne profit at the rate of N50,000.00 per annum commencing from November 1993 until possession is delivered. I am of the humble opinion that same will fail as it was not supported by evidence. No tenancy agreement was tendered in evidence to prove any tenancy between the Appellant and the Respondent and even the latter agreed on pg. 284 that he had no tenancy agreement with the Respondent.
Having resolved all grounds of appeal in favour of the Appellant, I will not hesitate to allow the appeal and grant the reliefs sought by the appellant in the lower court except that of damages of mesne profit being claimed by the appellant as he did not prove the existence of a valid tenancy agreement between himself and the Respondent. The appeal is hereby allowed.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother Adamu JCA (PJ) and I agree with his reasoning and conclusion.
I too allow the appeal and abide by the consequential orders in the lead judgment.
HABEEB A.O. ABIRU, J.C.A.: I agree.
Appearances
O. I. HABEEB, ESQ., WITH G. YAKWO, ESQ.,For Appellant
AND
YAHAYA MAHMOOD, SAN,For Respondent
