ALHAJI GANIYU OKIKIADE & ORS v. DAVID ALALADE
(2012)LCN/5345(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of May, 2012
CA/I/97/2007
RATIO
“In law a certified true copy of a document is as good as the original and is presumed under the Evidence Act to be regular until the contrary is proved.” Per ALAGOA, J.C.A
“There is however the need to be put on the enquiry as to whether Exhibit ”C” conveys a proper title on the Respondent over the property in dispute. Nnaemeka Agu JSC in ROMAINE V. ROMAINE (1992) 4 NWLR PART 238 at page 650 succinctly put it this way. “It does not mean that once a claimant produces what he claims to be an instrument of grant he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather production and reliance upon such an instrument inevitably carries with it the need for the Court to enquire into some or all of a number of questions including: (i) Whether the document is genuine and valid. (ii) Whether it has been duly executed stamped and (iii) Whether the grantor had the capacity and authority to make the grant. (iv) Whether the grantor had in fact what he purported to grant; and (v) Whether it had the effect claimed by the holders of the instrument.” With this as guideline what can one make of Exhibit “C’? Per ALAGOA, J.C.A
“The law is trite that there are five ways of proving ownership of land one of which is by production of documents of title. See IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 at 248.” Per ALAGOA, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI GANIYU OKIKIADE
2. ALHAJI RAUFU OKIKIADE
3. RASAKI OKIKIADE Appellant(s)
AND
DAVID ALALADE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Bolaji Yusuff J. of the High Court of Justice Ibadan Oyo State in Suit No. 1/970/89 delivered on the 24th April 2006. In the said High Court below, the present Respondent as Plaintiff had by paragraph 19 of his Further Amended Statement of Claim dated 21st February 2002 at page 64 of the Record of Appeal claimed against the Appellants, then defendants as follows –
(i) Declaration of Statutory Right of Occupancy in favour of the Plaintiff in respect of the parcel of land contained in the Survey Plan No. FA/8145 prepared by A. O. Adebogun licensed surveyor and attached to the Plaintiff’s Deed of Conveyance registered as No. 7 at page 7 in Volume 2141 in Ibadan Lands Registry.
(ii) N250,000.00 (Two hundred and fifty thousand Naira) damages against the defendants jointly and severally for their continuing trespass on the plaintiff’s land.
SPECIAL DAMAGES
5,400 Blocks deposited on the land at N35 each – N189,000
15 loads of Gravel at N350 per load – N5,250
5 loads of sand at N250 per load – N1,250
TOTAL: – N195,550
GENERAL DAMAGES: N54,450
N250,000
(iii) Perpetual Injunction restraining the Defendants, their servants, agents or assigns from further entering on the land in dispute.
DATED at Ibadan this ……… day of … 2001.
SGD.
CHIEF M. L. LAGUNJU & CO.
PLAI NTIFF’S SOLICITOR,
”TRIUMPH CHAMBERS”,
BLOCK AS 17A
AGODI LAW OFFICE
AGODI GATE
IBADAN.”
What can be gleaned from the Respondent’s (then Plaintiff’s) further amended statement of claim is that on the 1st July 1997 he bought a plot of land from one Alhaji Alimi Olayiwola with respect to which a Deed of Conveyance was executed and registered as No, 7 page 7 volume 2141 of the Lands Registry in the office at Ibadan. The land which is situate, lying and being at Oke-Ogbere Agugu, Ajia road, Ibadan and verged yellow in the dispute Survey Plan No. RADS/OY/DSO1/99 dated 14th April 1999 and prepared by A. A. Adeyemi Licensed Surveyor, is part of a large parcel of land which Alhaji Alimi Olayiwola had bought from some persons namely Salawu Funlade (Mogaji), Alimi Alao, Agboola Adisa and Bello Iyanda all of Itabigbo Ibadan for which a deed of conveyance was executed between the vendors and Alhaji Alimi Olayiwola which was registered as No, 13 at page 13 volume 2090 of the Lands Registry Ibadan. The Respondent averred that sometime in 1984 he put on his purchased plot of land in preparation for the construction of a house the following materials:- 5,400 blocks costing N2,652; 15 loads of gravel costing N840; and 5 loads of stone costing N440. He further averred that on the 5th January 1987 when he went to the aforesaid plot of land, he found that these items had all been removed and that a building was being erected on the land. He later discovered that it was the 4th defendant that was erecting the said building on his land and on arrest the 4th defendant said it was the 1st, 2nd and 3rd defendants that had sold the land to him (4th defendant). The 1st, 2nd and 3rd defendants on arrest confirmed that they sold the land to the 4th defendant having recovered the land from the Respondent.
The Respondent showed the police the two deeds of conveyance, one executed on a wide expanse of land sold to the late Alhaji Alimi Olayiwola and the other sold by Alhaji Alimi Olayiwola to the Respondent. The 1st, 2nd and 3rd defendants, Respondent averred, are the children of those who sold the land to the late Alhaji Alimi Olayiwola. Despite the warning of Oyo State Commissioner of Police to the defendants not to go unto the land again but seek redress in a Court of law the defendants have persisted in doing so.
In their Further amended Statement of Defence, amended on the 31st March 2006 pursuant to an order of court made same day and at pages 107-110 of the Record of Appeal, the Appellants (then defendants) while admitting that Alhaji Alimi Olayiwola bought a large parcel of land from Salawu Funlade, Alimi Alao, Agboola Adisa and Bello Iyanda, denied that Alimi Olayiwola sold a portion of the land thereof to the Respondent contending that it was one Raufu Abanikanda that stealthily sold land to the Respondent but not out of Alhaji Alimi Olayiwola’s land. The Appellants as Defendants further contended that:
(a) Alhaji Olayiwola had sold off all his plots in the area.
(b) Alhaji Olayiwola did not issue any receipt to the Respondent neither did he sign any document to Respondent in respect of the land in dispute or any land at all.
(c) Alhaji Olayiwola was never invited by the Respondent neither did he follow the Respondent to the Police Station or to Court when the Okikiade family rose against him when he demolished the uncompleted building on the land.
It is the contention of the Appellants that Alhaji Olayiwola had no land to sell in the area where the Respondent claims to have bought land from him and any Deed of Conveyance made to him is irregular, null and void and should be set aside.
Appellants further contended that the Respondent was not entitled to any Special or General Damages as he never brought blocks and other building materials on to the land.
This in a nutshell is the position regarding pleadings of the parties in the court below. Evidence was led on both sides and documents tendered and admitted and addresses of Counsel taken. In his considered judgment the learned trial Judge held as follows –
1. Leg 1 of the Plaintiff’s claim fails and it is hereby dismissed.
2. Leg 2 succeeds in part.
3. Leg 3 succeeds.
4. A sum of N30,000.00 is hereby awarded as general damages in favour of the plaintiff for the trespass committed by the defendants on the land verged yellow in Plan No. RADS:OY:DSO1:99 dated 14th April 1999 and prepared by A. A. Adeyemi and also shown in Plan No. FA: 8145 prepared by A.O. Adebogun licensed Surveyor,
5. The defendants, their servants, agents or assigns are hereby restrained perpetually from further entering on the land in dispute or in any way interfering with the plaintiff’s possession of the said land.
The Defendants now as Appellants filed a Notice of Appeal dated the 30th May 2006 contained at pages 135-138 of the Record of Appeal. By a motion on Notice dated the 29th June 2007 and filed on the 2nd July 2007, the Appellants as Applicants sought the leave of this Court –
(a) To amend their Notice of Appeal dated the 30th May 2007 in accordance with a Schedule of Amendment filed along as Exhibit “A”.
(b) To file and argue an additional ground to be numbered as Ground 4 in the Amended Notice of Appeal
(c) To deem as having been properly filed and served on the Respondent, the Amended Notice of Appeal containing the additional ground numbered as ground 4.
This application was moved and granted on the 29th April 2008 and an Amended Notice of Appeal filed on the 3rd July 2007 became operative as from that date i.e. 29th April 2008. The said Amended Notice of Appeal inclusive of the additional ground 4 is reproduced hereunder shorn of particulars –
1. The learned trial Judge erred in law when he found that the land in dispute is within the land of Alhaji Alimi Olayiwola.
2. The learned trial Judge erred in law when she found that Plaintiff was in possession of the land in dispute.
3. Having failed to properly evaluate and consider the evidence of the 1st Defendant and weighed it with the Plaintiff’s evidence, His Lordship erred in law when he declared Plaintiff entitled to damages to trespass to the land.
4. The learned trial Judge erred in law when she found as follows.
“On the above authorities and in the absence of a cogent and credible evidence showing that Exhibit C was not executed by Late Olayiwola, it is hereby presumed that Late Olayiwola executed the Deed of Conveyance’ Exhibit C in favour of the Plaintiff.”
On the 9th February 2012 this appeal came up for hearing.
Bode Elemide Counsel for the Appellants adopted and relied on the Appellants’ Brief of Argument dated, filed and deemed properly filed on the 6th May 2009, and urged the Court to allow the appeal. In the said Brief of Argument the Appellants distilled the following four issues at pages 4 and 5 for the determination of this Court –
(i) Whether having regard to the admission of PW1 (later tried to be resiled from) admitting that a survey Assistant prepared Exhibit ”A” (Respondent’s plan) and that he (the surveyor 1st PW) merely signed it, the learned trial Judge was right in relying on such a plan to find that the land in dispute was within the land of Alhaji Alimi Olayiwola.
(ii) Whether having regard to the pleadings and the evidence, the learned trial Judge was right to decide as she did that Respondent was in possession of the land in dispute.
(iii) Whether the learned trial Judge properly evaluated the evidence of the parties, especially the Appellants’ and whether she did not base her judgment on just a portion of the oral evidence thereby coming to a wrong decision.
(iv) Whether the learned trial Judge was right in awarding the land in dispute and damages to the Respondent having regard to the evidence.
The Respondent was not in Court on the day this appeal came up for hearing. His Counsel was not also present although the records of the Court showed that on the 25th May 2011 when this appeal was adjourned to the 9th February 2011 for hearing, one Miss N. O. Mogbolu was present in Court and announced her appearance as Counsel for the Respondent. This Court also took cognizance of the fact that the Respondent’s Brief of Argument had been filed and was indeed in the Court’s file. That Brief of Argument is dated the 25th May 2010 and was filed on the 16th June 2010. In the said Respondent’s Brief of Argument, this Court was able to discern that the Respondent while not formulating any issues of his own appears to have adopted the Issues formulated by the Appellants in their brief of Argument and proffered arguments on each of them. This Court therefore invoked the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules 2011 to treat this appeal as having been argued.
The Respondent in his Brief has asked this Court to treat the appeal as lacking in merit and to dismiss same with substantial cost.
I think the following Issues will suffice in the determination of this appeal –
(1) Whether having regard to the pleadings and evidence the learned trial Judge was right in coming to the decision that the Respondent was in possession of the land in dispute.
(2) Whether the learned trial Judge was right in his award of damages to the Respondent regard being had to the evidence adduced.
I shall now proceed to deal with the above issues in that order. From the evidence adduced by both parties there is no doubt that the identity of the land in this case is known by both parties. Is this piece of land within the larger portion of land sold to Olayiwola by the Okikiade family which the Respondent as plaintiff in the court below claims to have been sold a part of by Olayiwola? The process by which the learned trial Judge came to a finding that the land in dispute is within the land sold by the Appellants’ family to Alimi Olayiwola by comparing all three plans and drawing conclusions from them cannot be faulted in its evaluation. But that was only part of a larger issue as to whether the Respondent had discharged the onus to prove title to the land. The law is trite that there are five ways of proving ownership of land one of which is by production of documents of title. See IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 at 248.
The Respondent tendered a deed of conveyance by which he could be said to have bought a portion of the land sold to Alimi Olayiwola as Exhibit “C”. Attached to Exhibit “C” is Plan No.FA 8145 dated the 18th April 1977 which is a plan of the said land, Plan No.RADS:DSO11:99 dated 14th September 1999 was also tendered as Exhibit “A”, True that in his evidence-in-chief at page 93 of the Records, Alhaji Ganiyu Okiki as DW1 had said that the land in dispute is not within the land sold to Alhaji Olayiwola and that it was also not true that Alhaji Olayiwola sold the land in dispute to the Respondent and when shown Exhibit ”C” this witness said that Alhaji Olayiwola’s signature is not on it. That can hardly be said to be concrete evidence to rebut the presumption that Alimi Olayiwola executed the deed of conveyance Exhibit ”C” in favour of the Respondent. To this extent the learned trial Judge’s finding cannot also be faulted.
There is however the need to be put on the enquiry as to whether Exhibit ”C” conveys a proper title on the Respondent over the property in dispute. Nnaemeka Agu JSC in ROMAINE V. ROMAINE (1992) 4 NWLR PART 238 at page 650 succinctly put it this way.
“It does not mean that once a claimant produces what he claims to be an instrument of grant he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather production and reliance upon such an instrument inevitably carries with it the need for the Court to enquire into some or all of a number of questions including:
(i) Whether the document is genuine and valid.
(ii) Whether it has been duly executed stamped and
(iii) Whether the grantor had the capacity and authority to make the grant.
(iv) Whether the grantor had in fact what he purported to grant; and
(v) Whether it had the effect claimed by the holders of the instrument.”
With this as guideline what can one make of Exhibit “C’?
For an answer it is necessary to reproduce so much of Exhibit ”C” as is germane to this issue. It reads as follows.
THIS CONVEYANCE is made this 1st day of July 1977 BETWEEN: ALHAJI ALIMI OLAYIWOLA of E7/590 Ode-Aje, Ibadan Oyo State of Nigeria (hereinafter called the “Vendor”) of the first part AND MR. DAVID ODUOLA ALALADE of E6/385 Oke-Offa Atipe, Ibadan Oyo State of Nigeria (hereinafter called the “Purchaser”) of the second part.
WHEREAS:
1. The plot of land now conveyed is part of a large tract of land which belonged to one Okikiade under native law and custom from the time immemorial and freed from any incidents of customary law.
2. Okikiade settled and exercised control and acts of ownership over the land in his lifetime by farming and hunting therein.
3. Okikiade died and after his death his estate was inherited by his children under native law and custom and freed from any incidents of customary law.
4. To (sic) accredited representative of Okikiade family sold said large tract of land to the vendor who subsequently sold a plot it (sic) to Alhaii Raufu Sanusi who eventually sold it to the present purchaser.
5. The Vendor being the original purchaser now conveyed the said plot of land to the present purchaser in fee simple absolute in possession and free from any incumbrances for the sum of N760,00 (Severn hundred and sixty naira).
NOW THIS CONVEYANCE WITNESSETH …”
Paragraphs 4 and 5 of the recital in Exhibit ”C” are quite instructive especially the underlined portion of paragraph 4, which said underlining is mine for emphasis. The recitals show that late Alimi Olayiwola had sold the land in dispute to Raufu Sanusi. The purport is clear and it is that late Alimi Olayiwola having earlier divested himself of any interest in the land to Raufu Sanusi had nothing to convey to the Respondent under the well known legal principle of ” Nemo dat quod non habet” which simply means that no one can give to another something that he does not possess. It was on that basis that the learned trial Judge held and rightly so in my view that the Respondent’s claim for declaration of title to the land failed. Declaration of title to land and trespass to land as again rightly pointed out by the learned Judge are two distinct and separate claims. The paramount consideration in trespass to land is possession of the land. See AMAKOR V. OKIEFUNA (1974) 3 SC 67 at 75; OKHUAROBO V. AIGBE 9 NSCQR 612 at 637. OSUJI V. ISIOCHA (1989) 12 NWLR (PART III) page 623 at 625; ODUOLA V. COKER (1981) 5 SC 197 at 214; OLADUNJOYE V. AKINFERINWA (2000) 4 SC PART 1, 19 at 42.
The learned trial Judge despite the failure of the Respondent to establish title to the land in dispute still went on and rightly too in my view to consider the Respondent’s claim for trespass and injunction. It is trite that a person can maintain an action in trespass to land even when he is not the owner if he is in exclusive possession of the land. This right to unperturbed enjoyment of the land enures against all persons and anyone other than the true owner.Does the Respondent enjoy such possession of the land in order to maintain an action in trespass?
It is noteworthy that the plan attached to Exhibit ”C” was prepared in 1977.
Respondent’s evidence at page 82 of the Record is that in 1984 he dumped some building materials on the land which consisted of gravel, sand, stones and blocks but only the big stones are still there, He also said pillars were still on the ground when Exhibit “A” was prepared in 1999. Cross-examination was never directed at these salient aspects of the Respondent’s evidence.
Under cross-examination, he said he saw new numbers on his pillars. He then reported what he saw to Abanikanda who allegedly introduced him to the land. Abanikanda then took him to the 1st defendant who confirmed that the land had been sold. I am in agreement with the learned trial Judge that the Respondent succeeded in establishing actual possession of the land. It is perhaps necessary to clarify the point that the Respondent’s claim for special damages failed not necessarily because he had failed to establish that sand, stones and other building materials were kept on the land by him but because he did not meet the requirement of strict proof attendant to special damages. See OLOYEDE V. PRIOR (2005) ALL FWLR PART 1277 pages 1291-1292; OSUJI V. ISIOCHA (1989) 12 NWLR PART III page 623 at 625. Trespass having been established against the Appellants, the Respondent is entitled to damages and in law such damages for trespass are nominal.
It is not correct to allude as the Appellant has done in paragraph 6.04 at page 7 of the Appellants’ Brief of Argument that it was not possible to know which evidence the learned trial Judge accepted. The learned trial Judge carried out a proper evaluation of the evidence adduced and came to a balanced conclusion allowing some parts of the Respondent’s claim and dismissing others. Heavy weather was made by the Appellants in their Brief of Argument and address of Counsel on the failure of the Respondent to produce the original of the deed of conveyance choosing to rely on the certified true copy because it does not contain the signature of Olayiwola. In law a certified true copy of a document is as good as the original and is presumed under the Evidence Act to be regular until the contrary is proved. The Appellants however led no contrary evidence to disprove Exhibit ”C”. But the question to be asked at this stage is whether the learned trial Judge eventually relied on Exhibit “C” in proof of title to the land in dispute in favour of the Respondent.
We have already seen how in view of the recital in paragraphs 4 and 5 leg 1 of the Respondent’s claim failed and was dismissed.
The reasoning of the learned trial Judge is sound and I find no reason whatsoever to disturb her findings as contained in the judgment delivered on the 24th April 2006 and affirm same in its entirety.
The Appeal therefore fails and is dismissed and the judgment of Bolaji Yusuff J. delivered on the 24th April 2006 is hereby affirmed by me.
Parties are to bear their own costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the lead Judgment of my learned brother ALAGOA, J.C.A. OFR, just delivered. I am in complete agreement with the reasoning and conclusion contained therein, which I adopt as mine and dismiss the appeal. I abide by the consequential orders made, costs inclusive.
MODUPE FASANMI, J.C.A.: I had read in advance the draft of the lead judgment just delivered by my learned brother S. S. ALAGOA, J.C.A. (OFR).
I agree with his reasoning and conclusion that the appeal has no merit. For the reasons clearly set out in his judgment, I also dismiss the appeal with the same consequential orders contained herein including costs.
Appearances
Bode Elemide Esq. with J.W. Roberts Esq.For Appellant
AND
Miss N. O. MogboluFor Respondent
