ALHAJI IBRAHIM T. AMINU v. MRS. ELIZABETH ONAOLAPO OGUNYEBI & ANOR(2003)

ALHAJI IBRAHIM T. AMINU v. MRS. ELIZABETH ONAOLAPO OGUNYEBI & ANOR

(2003)LCN/1500(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of December, 2003

CA/IL/29/2002

 

JUSTICES

PATRICK IBE AMAIZU   Justice of The Court of Appeal of Nigeria

WALTER SAMUEL NKANU ONNOGHEN   Justice of The Court of Appeal of Nigeria

JA’AFARU MIKA’ILU   Justice of The Court of Appeal of Nigeria

Between

 

ALHAJI IBRAHIM T. AMINU Appellant(s)

AND

  1. MRS. ELIZABETH ONAOLAPO OGUNYEBI
    2. ALHAJI SHEU A. YUSUF Respondent(s)

PATRICK IBE AMAIZU, J.C.A. (Delivering the Leading Judgment): The appellant herein was the 1st defendant in suit, KWS/50/98, presided over by Bamigbola, J., of the Kwara State High Court, sitting at the Ilorin Division of the court. In that suit, the 1st respondent herein, as plaintiff sued the appellant and one other, now the 2nd respondent, claiming the following reliefs:-
“(i) A declaration that the plaintiff is the rightful owner of the piece or parcel of land together with the uncompleted building, thereon which consists of a twin flats of 3 bedroom each, and fenced, situate lying and being at Olorunsogo area, behind Federal Secretariat, Fate, Ilorin, Kwara State of Nigeria.
(ii) A declaration that the 1st defendant has no right whatsoever to tamper with, develop, alter, enter into or do any other thing whatsoever on the aforesaid property.
(iii) A declaration that the roofing of the said property by the first defendant constituted an act of trespass by the 1st defendant on the plaintiff’s property.
(iv) N250,000 as damages against the 1st defendant for trespass committed by the 1st defendant for unlawfully entering upon the plaintiff’s aforesaid property and roofing same unlawfully.
(v) Perpetual injunction restraining the 1st defendant his agent, servants privies or assigns from further developing, tampering with, altering, or from further committing any other act of trespass on the aforesaid property.”
Pleadings were filed and exchanged. The appellant in addition filed a counter-claim. In the counter-claim he sought for the following reliefs:-
“(i) A declaration that the 1st defendant is the rightful person entitled to the grant of a certificate of occupancy in respect of the piece or parcel of land situate, lying and being at Olorunsogo area, behind Federal Secretariat, Fate, Ilorin, and the owner of the uncompleted building thereon which consists of a fenced twin flat of three bedrooms each.
(ii) N500,000.00 as general damages for the delay caused by plaintiff to the completion of the building by the 1st defendants (sic) and, for the disturbance of the 1st defendant’s rights in respect of the property.
(iii) Perpetual injunction restraining the plaintiff either in person or through his agents, servants, privies, or any person(s) whosoever, from further disturbing the peaceful enjoyment by the 1st defendant of the said landed property”.
The 1st respondent in compliance with the rules of the court, filed a defence to the counter-claim. The 2nd respondent filed a defence. Thereafter, the trial proceeded. At the trial, all the parties gave evidence and called witnesses. They also tendered some documents to support their oral evidence.
Briefly, the facts which led to this appeal so far as they are material to the questions which call for our determination are:
The 1st respondent who is resident in Lagos, sometime in 1986, requested her brother in law (P.W.2) to look for land for her in Ilorin to purchase. When P.W.2 later found a parcel of land which was to be sold, he informed her. She came to Ilorin to inspect the land. She liked it and negotiated with the owner, the 2nd respondent who gave evidence as D.W.5 for the purchase of the land. The parties agreed on the purchase price of N12,000.00. She paid the amount, and the 2nd respondent handed her the original of the documents relating to the land, including a building plan.
The land has an uncompleted building on it. The building has two flats of three bedrooms each, which were at lintel level. And. It was not roofed.
After the payment, she went into occupation. She was advised by P.W.2 to fence the compound, which she did. She put PW.2 in charge of the property. It is the evidence of P.W.2 that he planted maize on the land for some time.
In 1997, the 1st respondent evinced an intention to complete the building. To this end, she requested P.W.2 to give her an estimate of the work that has to be done to complete the building. When P.W.2 went to the site to carry out the assignment, he discovered that the building had been roofed. He informed the 1st respondent, who in turn instructed her lawyer to put up a notice to the effect that the building belonged to her. It was when the appellant read the notice, that he contacted her lawyer claiming also ownership of the property.
The appellant claimed he bought the land from one Mrs. Oganah. It is his evidence that Mrs. Oganah took him to Banister Akinmade, who confirmed that he sold the land to her. It was then that Mrs. Oganah told him in the presence of his brother D.W.1, that she retired as a nursing sister and wanted to go home. She told him that she misplaced the original title deeds relating to the land, but that she had the photocopies. They agreed on the purchase price. He paid her the purchase price N31,000.00 and was given a receipt. He immediately went into possession. He roofed the building and gradually tried to complete it. It was in 1997, that he saw a notice pasted on the walls of the building. The 1st respondent claimed in the said notice that she was the owner of the building.
The 2nd respondent in his evidence, admitted that he sold the land and the uncompleted building on it to the 1st respondent. It is his evidence that he bought the land in 1986, from Mrs. Oganah. He paid N6,000.00 for the land. After the purchase, he was given the original of the documents in respect of the land. He sold the land in that year to the 1st respondent. He handed the original of the documents to the 1st respondent.
After carefully considering the above evidence, Bamigbola, J., in a reserved judgment held as follows:-
“In the final result, I prefer and believe the evidence of D.W.4 & D.W.5 (the 2nd defendant) for the reasons which I have stated. On the other hand, I do not believe the evidence of the 1st defendant (D.W.2) & his witness D.W.1. They have not convinced me to be witnesses of the truth in the least, having regard to my foregoing findings… This is to say that I have no cause to doubt the evidence of the plaintiff and her witnesses that the building was constructed to lintel level by the original owner & that the fencing was done by the plaintiff and other person.
I therefore, find that the plaintiff was in effective possession of the property in question when the 1st defendant went to put the roof on it.
The declaratory reliefs & injunction which the plaintiff sought for in paragraph 17(i), (ii), (iii) & (v) of the statement of claim must therefore succeed… the plaintiff’s claim succeeds. I award the sum of N100,000.00 as general damages for trespass against the 1st defendant. I also dismiss the 1st defendants’ counter-claim in its entirety”.
The appellant was dissatisfied with the judgment. He has appealed to this court. In compliance with the rules of this court, the parties through their counsel filed and exchanged briefs of argument.
Before us, the learned Counsel for the parties, adopted their respective briefs of argument and relied on submissions contained therein.
In his brief of argument, the appellant formulated four issues for determination:-
1. Whether the evidence adduced in this case, the learned trial Judge was not wrong to have granted the declaration of title of the property involved in this case in favour of the plaintiff/respondent.
2. Whether the learned trial Judge was not wrong in admitting exhibit D.14 in evidence and in placing heavy reliance thereon in the circumstances of this case.
3. Whether award of N100,000.00 damages against the appellant should not be set aside.
4. Whether on the preponderance of evidence the appellant ought not to have succeeded on this counter-claim.
The respondents identified also four issues for determination by the court. The said issues are identical and same in substance with the above issues formulated by the appellant. I take the view that a consideration of the following two issues would be enough to dispose of the main points raised in this appeal. The two issues are:-
1. Who between the appellant and 1st respondent has a better title to the land in dispute?
2. Whether the award of N100,000.00 damages against the appellant can be justified in law?
Arguing issue one, Akinlaja, Esq., of counsel, observe that in a claim for declaration of title to land, a plaintiff is only entitled to succeed on the strength of his own case and not on the weakness of the defendants. He cited the following cases in support thereof:- Owoade v. Omilola (1988) 2 NWLR (Pt. 77) 413, (1988) 5 SC … ; Kodilinye v. Odu (1935) 2 WACA 336; Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260, (1991) 9-10 SCNJ 1 at 23.
It is the learned counsel’s view that on the strength of the 1st respondent’s case, the learned trial Judge ought not to have granted the declaration sought by her. He submitted that the 1st respondent did not succeed in establishing a legal or an equitable title to the property in dispute.
The learned Counsel observed that the original owner did not execute a deed of conveyance in favour of the 2nd respondent when the latter allegedly purchased the property from him. He contended that for the purchaser of land to acquire a legal title on the land, there must be evidence of payment of purchase money, an acknowledgement of same by way of a receipt, and a deed of conveyance must be executed by the parties. He relied on the following cases:-
1. Folarin v. Durojaiye (1998) 1 NWLR (Pt. 70) 351, (1998) 2 SCNJ 212 at 222.
2. Ishola Williams v. Hammond (1988) 1 NWLR (pt. 71) 481, (1988) 2 SCNJ 318 at 339.
He further submitted that the cases show that the fact that the 2nd respondent had in his possession exhibit p. 1 to p. 7 and exhibit D.14 does not bestow on him a legal title to the land in dispute.
Continuing, the learned Counsel submitted that the evidence of D.W4 and D.W.5 (2nd respondent) on how the land in dispute was purchased by D.W.5 is suspect, inconsistent and irreconcilable. He referred to what he identified as inconsistencies in the evidence of D.W.4 and D.W5 on how D.W5 allegedly purchased the land in dispute. One of the inconsistencies, according to the counsel is the evidence that:-
“… Mrs Oganah informed him (D.W.4) at a time that she had an uncompleted building to sell and that subsequent to this, the 2nd defendant told him that he wanted to buy a building consequent upon which, he arranged for the two to meet”.
According to counsel, this piece of evidence is at variance with the evidence of D.W.5 that-
“… He told Mr. Toki that he should look for a property for him to buy and that Mr. Toki called him about two months afterward to say that he had got one uncompleted building for him”.
The learned Counsel emphasised the fact that Mrs. Oganah made it known to the appellant, that she had not sold or mortgaged the land in dispute to anyone before he negotiated with him for the sale. And, also, that she misplaced the original copies of the documents relating to the land in dispute. It is the contention of the learned Counsel that in the light of the foregoing, it was necessary for the 2nd respondent to lead evidence to show that he negotiated with the real Mrs. Oganah for the purchase of the land in dispute. This is more so, according to the learned Counsel, as there was no deed of conveyance between the 2nd respondent and Mrs. Oganah.
It is the view of the learned Counsel, that considering the totality of the evidence adduced before the lower court, the 2nd respondent did not acquire a legal or an equitable title to the land in dispute. In that case, the 2nd respondent could not have conferred any interest, legal or equitable on the 1st respondent. This is because no one gives what he has not. He cited the case of Mia & Sons Ltd. Afrotec (1991) 5 NWLR (Pt. 194) 724 and submitted that a sale by a person lacking title does not pass any title to a third party.
He urged the court to hold that from the evidence in the record, D.WA & D.W.5 came into possession of the title deed to the land in dispute unlawfully.
The learned Counsel referred to the evidence of the 1st respondent that she was in possession of the land in dispute and that P.W.2 who looked after the land farmed on it. He observed that the 1st respondent admitted that there was no gate to the property in dispute, which she claimed P.W.2 farmed and there were stray goats in the neighbourhood. He submitted that it can not be true that P.W.2 planted maize on the land because there was nothing to keep away stray goats from destroying the crops as she claimed. He cited the following cases:- Edokpolo & Co. Ltd. v. Ohenen (1994) 7 NWLR (Pt.35S) 511; Highgrade Maritime Service Ltd. v. First Bank of Nig. (1991) 1 NWLR (Pt. 167) 290.
He contended that the lower court was wrong to have held that the 1st respondent was in possession of the land in dispute. Or that if the appellant had made diligent inquiry he would have found out that the land in dispute had been sold earlier on.
The learned Counsel further contended that since the appellant tendered an agreement between him and Mrs. Oganah, there was no need to call the lawyer who prepared the agreement to give evidence or the vendor, Mrs. Oganah.
In the learned counsel’s view, once a grant or other disposition of property is reduced into writing, no evidence may be given of such a grant or disposition except the document itself. He relied on section 132 of the evidence Act and the case of Ozigi v. UBN (1994) 3 NWLR (Pt. 333) 385, (1994) 3 SCNJ 42.
Referring to exhibit D.14, the learned Counsel submitted that it is inadmissible. It is his view that the exhibit did not show that Mrs. Oganah engaged the services of Toki & Co. to sell the land in dispute on her behalf. Consequently, that fact is at variance with the averment in paragraph 4 of the statement of defence of the 2nd respondent.
He observed that the manner in which the exhibit was introduced and admitted at the trial sprang a surprise on the appellant. He contended that the lower court should not have relied heavily on it to arrive at its judgment.
In the learned counsel’s view, exhibit D.14, was hearsay evidence in the hands of the 2nd respondent. In that case, the learned trial Judge was wrong to have used a hearsay evidence to arrive at his judgment. He urged the court to hold that it occasioned a miscarriage of justice. He cited the case of Owunari Long John v. Blakk (1998) 5 SCNJ 68 at 89.
He submitted that the appellant, acquired a legal title to the land in dispute as he had fulfilled the three conditions laid down in the case of Folarin v. Durojaiye supra namely:-
1. Evidence of payment of the purchase price.
2. Acknowledgement of the payment by the owner of the land; and
3. A conveyance executed in favour of the appellant by the undisputed owner of the land – Mrs. Oganah. It is his view that trespass cannot be committed by a person in possession.
He observed that the issuance of the customary right of occupancy, exhibit D.14, to the appellant in respect of the land in dispute underscores the acquisition of legal title to the land in dispute by the appellant. Finally, the learned Counsel referred to the numerous acts of ownership and possessory rights exercised by the appellant over the land. In particular, he referred to the evidence of D.W.3, the caretaker, that he was never accosted by anyone when he was looking after the land for the appellant. He contended that in the light of the foregoing, the appellant was in the exclusive possession of the land in dispute. And, the ownership of the land is presumed to be in him as the person in possession. The burden of rebutting the presumption lies on the 1st respondent who is challenging it. He cited the case of Laguro v. Toku (1992) 2 NWLR (Pt. 223) 278, (1992) 2 SCNJ 1. Finally, the learned Counsel submitted that the evidence before the lower court, does not show that the 1st respondent has a better title to the land in dispute. He cited the case of Ajeigbe v. Odedina & Ors. (1998) 1 NWLR (Pt. 72) 584, (1988) 3 SCNJ 52, and urged the court to resolve the issue in favour of the appellant.
In his reply on issue one, Chief Olorunnisola, SAN, of counsel, conceded that a plaintiff in a land case must succeed by the strength of his case and not by the weakness of the defendant’s case. He observed that in the present suit, the appellant and the 1st respondent are plaintiffs by virtue of the counter-claim of the appellant. In that case, each party has the burden of proving his or her case as a plaintiff.
The learned Senior Counsel observed that even if 1st respondent in the court below, had failed to proved her right over the land in dispute, it does not necessarily mean that the appellant would have been awarded title to the land. He cited the following cases:-
1. Adone & Ors. v. Ikebudu & Ors. (2001) 14 NWLR (Pt.733) 385, (2001) 7 SCNJ 513.
2. Ikawa v. Dandy (1993) 8 NWLR (Pt. 310) 246.
He contended that the case of Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351, (1988) 2 SCNJ 212, relied upon by the appellant is not apposite to the present case.
It is the learned Senior Counsel’s view, that there is nothing from the pleadings or the evidence before the lower court that shows the system of law applied to the contract of sale between the 2nd respondent and Mrs. Janet Modupeola Oganah. The evidence only showed that there was a contract of sale of the land in dispute and the original documents relating to the land were handed to the 2nd respondent. The learned Senior Counsel referred to the case of Ayinla v. Sijuwola (1984) 1 SCNLR 410, where the Supreme Court held at page 425 that:-
“Whether land is sold under native law and custom or merely sold, but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate.”
In the light of the above observation by the apex court, the learned Senior Counsel contended that a deed of conveyance is not a sine qua non to an acquisition of a legal title. He then referred to the evidence which was accepted by the lower court i.e.,
(1) The 2nd respondent bought the land in dispute from Mrs. Janet Modupeola Oganah.
(2) A receipt for the purchase was issued on behalf of the seller by Toki & Co. and the original title documents relating to the land were delivered to the 2nd respondent.
In the view of the learned Senior Counsel, the evidence before the lower court supports the findings of the court and should therefore not be disturbed. The learned Senior Counsel referred to the observation of the counsel for the appellant as to whether the documents relating to the land were handed to Toki & Co., before or after the sale and submitted that the issue is neither here nor there and did not affect the genuineness or otherwise of the said title deeds.
It is the view of the learned Senior Counsel that the lower court believed the evidence of D.W.4 that he (D.W.4) acted as the agent of Mrs. Oganah in the sale of the disputed land. He referred to the dictum in the case of Davies & Sweet (1962) 2 QB 300, which was adopted by the apex court in the case of Rosenje v. Bakare (1973) 5 SC 131 that:-
“But such authority may be conferred upon an estate agent expressly or may be inferred from the circumstances of the case”.
At page 140 lines 1-5 of the Bakar case the Supreme Court held:
“First of all it should be realised that the agent need not be authorised in writing. See Heard v. Pilley (1869) LR 4 CH applicant 548 (Esp per Sewyn, L.J. at pages 551, 552) and in deed the name & identity of the principal on whose behalf the agent acts need not be disclosed”.
The learned Senior Counsel contended that without exhibit D14 there is sufficient evidence that Toki & Co. was the agent of Mrs. Oganah in the transaction between her and the 2nd respondent. He reminded the court that exhibit D14 was admitted because of the averment in paragraph 4 of the 2nd respondent’s statement of defence.
In his view, a document may be admitted in evidence for one purpose and rejected for another purpose. He cited the case of Adesanya v. Aderonmu (2000) 9 NWLR (pt. 672) 370, (2000) 6 SCNJ 242 at 254. It cannot be true, the learned Senior Counsel submitted, that appellant was taken by surprise when exhibit D.14 was received in evidence. This is because there is an averment in the pleading supporting it.
The learned Senior Counsel reminded the court that the present suit is not between the 1st respondent and Mrs. Oganah. If that were so, some of the submissions of the learned Counsel for the appellant would have been relevant. He observed that it was because of this, that issue was not joined on the way and manner the property in dispute was purchased. In that case, whether the purchase money was paid in cheque or by cash is irrelevant. Not only that, the 2nd respondent did not need any conveyance to give him title.
The learned Counsel reminded the court that it is the appellant’s roofing of the property and his erecting a gate to the compound that constituted a trespass for which he was sued in this case. He contended that these acts cannot metamorphose into acts of possession. This is more so that as at 1990, when the appellant purchased the building, the 1st respondent had erected a fence around the building and this in itself is an act of possession. He contended that an act which constitutes a trespass cannot at the same time constitute possession.
The learned Senior Counsel observed that there is evidence which the lower court believe that the 1st respondent built a fence on the land in dispute and also farmed on the land. He submitted that this amounted to a finding that the 1st respondent is in an exclusive possession of the land in dispute. He referred to the following cases:-
1. Ladipo v. Ajani (1997) 8 NWLR CPt.517) 356, (1997) SCNJ 466
2. Akunyili v. Ejidike (1996) 5NWLR (pt. 449) 381, (1996) 4 SCNJ 251
He observed that in the latter case the Supreme Court held that:
“It is nonetheless a trespass and not a defence that, the person in trespass appears to have acquired title from the wrong person”.
It is the view of the learned Senior Counsel that the case of Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) 371, (1997) 7 SCNJ … which is relied upon by the appellant is not apposite to this case.
The case involved a voidable sale of land in dispute. The Supreme Court held that it was a good legal excuse for the purchaser to be on the land, until the sale is avoided by the appropriate authority. The present case is different. It does not involve a voidable sale of land.
Finally, the learned Counsel submitted that the fact that the appellant obtained a customary right of occupancy in respect of the land in dispute does not confer any title to him. He referred to the case of Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650 at 662. He urged the court to resolve the issue in favour of the respondent.
From the record of proceedings, it is clear that the bone of contention is the claim by the appellant and the 1st respondent of the ownership of the land in dispute. It is now settled that where there are two competing claims of ownership of a parcel of land, and each contestant is relying on acts of ownership and actual possession, anyone of them who can prove title is, in actual possession, and the other a trespasser.The evidence which the lower court believed is that the 1st respondent purchased the land in dispute from the 2nd respondent in 1986. The appellant on the other hand, purchased the land from Mrs. Oganah in 1990. It is necessary to look carefully, at the competing claims and decide who has a better claim. I observe that the claim of the 1st respondent is solely dependant on whether the title of the 2nd respondent is to be preferred to that of the appellant.
The 2nd respondent purchased the land in dispute from Mrs. Oganah in 1986. He paid N6,000.00 for the land. He was given at the time of purchase the following original documents:-
Exhibit P1 A deed of transfer between Mr. Akinmade Abolarin and Mrs. Oganah.
Exhibit P.2 The site plan of the land in dispute drawn for Mrs. Oganah.
Exhibit P.3 Permit to develop the land issued to Mrs. Oganah by the Ilorin planning Area (original copy).
Exhibit PA Receipt No. 39297 issued to Mrs. Oganah for the approval of the building plan (original copy).
Exhibit P5 Revenue collectors receipt No. 39291 being charges for approval of building plan (original).
Exhibit P.6 Building plan approved for Mrs. Oganah (original).
Exhibit P.7 “Receipt” for full payment of Mrs. Janet Modupeolu’s property behind Federal Secretariat, Fate, in, issued by Toki & Co, registered Estate Surveyors & Valuers to Alhaji Shehu Yusuf Adeleke (2nd respondent).
Exhibit P.8 A building permit issued to Mrs. Janet Modupeola Oganah (original)”.
As indicated above, exhibit 7 is a receipt issued to the 2nd respondent for the purchase of the land in dispute. I pause here, to observe that a receipt for purchase money is evidence that there was an agreement for sale and that the consideration for such sale was paid by the purchaser. Onyemake Ibemere v. Fredrick Unaegbu (1992) 4 NWLR (Pt.23S) p.390.
It is to be borne in mind, that the object of pleading is to fix the issues for trial accurately and to appraise the other side of the case which it would meet and afford it the opportunity to call evidence to controvert the case against him. Lawrence Oredoyin & Ors. v. Chief Akala Arowolo & Ors. (1989) 4 NWLR (Pt.114) p. 172. It is for this reason, that parties are bound by their pleadings and will not be permitted to set up a case different from their pleadings either in the court below or in this court. Sir A. Aderemi v. Joshua Adedire (1966) NMLR 398. I shall therefore, in considering the appeal, be guided by the pleadings exchanged by the parties.
In paragraph 10 of the statement of defence the appellant averred as follows:-
“10. The 1st defendant shall in specific reply to paragraph 5 of the statement of claim contend that the property forming the subject matter of this action did not belong to the 2nd defendant and by reason thereof the 2nd defendant had no right to transfer same to the plaintiff”.
The above is a reply to the averment by the 2nd respondent that after purchasing the property in dispute, he transferred same to the 1st respondent. It is trite that a party in a proceeding who alleges forgery of a document must not only plead the document, but also provide the particulars he relies upon. Chief Michael Udo v. Chief Christopher Eshiet (1994) 8 NWLR (Pt.363) p. 483.I have taken the pains to refer to the foregoing to show that the parties did not join issues on the fact that the above exhibits were handed to the 2nd respondent at the time he paid for the purchase price of the land in dispute.
It is now settled once there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. Orasanmi v. M. Idowu (1959) 5 SCNLR 97, (1959) 4 FSC 40. The point was made that there was no formal conveyance between the 2nd respondent and Mrs. Oganah. What then is the effect of there not being a deed of conveyance between the parties?
It was held in Soremekun v. Shodipo (1959) LLR 30, that if land is sold to a party without execution of a formal deed of conveyance his interest was no more than equitable. In that case, a legal estate of another party would be preferred to it if the party with equitable interest is not in possession.
This court was referred to the case of Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351, (1988) 2 SCNJ 212, that for a purchaser under English Law to acquire a legal title over the land he purchased, there must be evidence of payment of the purchase price, acknowledgement of same, and execution of a deed of conveyance.
I agree, entirely with Akinlaja, Esq., of counsel, that the above represents the law. It is to be noted however, that the parties did not join issues on whether the transaction between the 2nd respondent and Mrs. Oganah was governed by English Law or native law & custom. Be that as it may, it is equally good law that a valid sale of land could be conducted under native law & custom without the necessity for a conveyance as under the received law. When that is the case and there is a suit in respect of the land, it becomes necessary to call those who witnessed the transaction to give evidence. Mallam Abdul Kadir Yusuf v. Dore Mathew (1999) 13 NWLR (pt.633) 30. In the present suit, the person that witnessed the sale gave evidence (D.W.4).
It is to be mentioned that whether the 2nd respondent was in possession, when the appellant purported to purchase the land from Mrs. Oganah was also never in issue. This, notwithstanding, it is necessary to define what constitutes being in possession of land in law as it will help us in determining this appeal. In the case of S.O. Igwegbe v. Lawrence Ezuma & Ors. (1999) 6 NWLR (Pt.606) p.228, possession of land was defined as meaning the occupation of the land, a physical control of the land either personally or through an agent.
In his submission, Akinlaja, Esq., of counsel, stated that the 2nd respondent had not shown “that it was the real Mrs. Oganah that gave him the title documents relating to the property to Toki & Co. for onward transmission to him.”
Here again, I observed that this issue was not canvassed in the pleading.
The case of the appellant is that he purchased the land in dispute from Mrs. Oganah in 1990. At the time of the purchase, Mrs. Oganah told him that she misplaced and perhaps lost the original of the documents to the land. She assured him that she had not sold or mortgaged the property to anyone. She then gave him the photocopies of the documents relating to the land in dispute. Because of this assurance, Akinalaja, Esq., of counsel, is of the view that the respondents should have established that it was the true Mrs. Oganah that sold the property to the 2nd respondent.
I do not think that there is a duty on the 2nd respondent to establish that the person who sold the land in dispute to him was really Mrs. Oganah and not an impostor. This is because what Mrs. Oganah told the appellant has no evidential value. In the case of Flash Fixed Odds Ltd. v. Akatugba (2000) 9 NWLR (Pt. 717) 46, (2000) FWLR (Pt. 76) 709, it was held that evidence of a statement made to a witness by a person who is not himself called as a witness mayor may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible, when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.
There is therefore no evidence that Mrs. Oganah ever lost the original title deed to the land in dispute. It is therefore safe to presume that the original title deeds were handed to the 2nd respondent by Mrs. Oganah or on her behalf. As there was no evidence of fraud, the inference to be drawn from the evidence is that D.W.4 acted on behalf of Mrs. Oganah. See Davies & Sweet (1962) 2 QB 300. Rosenje v. Bakare (1973) 5 SC 131 Akinlaja, Esq., of counsel, relied on the Certificate of Occupancy obtained by the appellant to contend that the appellant has the title to the land in dispute. It has to be realised that a Certificate of Occupancy is not a magic wand that destroys existing rights over a land in dispute. The acceptable view is that for a certificate of occupancy to be valid, there must not be in existence at the time the certificate was issued, a customary owner who has not been divested of his title.
It has been established by a long line of decided cases that where both parties claim and succeed in tracing their title in respect of the same parcel of land to the same grantor, the principle has been that the latter in time of the two to obtain a grant cannot maintain an action against the person who first obtained a grant.
In the present case, the 2nd respondent acquired interest in the land in dispute in 1986. The appellant purported to acquire interest also in the land in dispute, in 1990. From the sequence, Mrs. Oganah was divested of her title to the land in dispute in 1986, she has nothing left to convey to the appellant, the subsequent purchaser by 1990.
The principle is nelllodat quod non habet.
Considering all the evidence, it is my respectful view that the lower court was right in holding that the 2nd respondent had a better title to the land in dispute and he passed same to the 1st respondent.
I now deal with the counter-claim. It is now accepted that where a defendant in a suit counter-claims, each of the parties becomes a plaintiff as regards his own claim. The onus of proving better title rests on each party. For the reasons I have earlier given, the counterclaim fails as nothing was conveyed to the appellant.
From all I have said, issue one is resolved in favour of the respondents.
Arguing issue 2, Akinlaja, Esq., of counsel, submitted that the 1st respondent was not entitled to the declaration of trespass, damages and injunction against the appellant. This is because she was not shown to be in possession of the land in dispute. He observed that a claim for trespass and injunction postulates that a plaintiff is in an exclusive possession and it can only lie at the instance of a party in an exclusive possession. He cited the following cases:- Ladipo v. Ajani (1997) 8 NWLR (Pt. 517) 371, (1997) 8 NWLR (Pt. 517) 356, (1997) 7 SCNJ 466 Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381, (1996) 4 SCNN 251 Adebayo v. Ighodalo (1996) 5 NWLR (Pt.450) 507, (1996) 5 SCNJ 23.
The learned Counsel reminded the court that the appellant entered the land in dispute by virtue of a conveyance made to him by the original owner. He relied on exhibits D.2 & D.11. He contended that where there is a legal justification for entering a land until the transaction is avoided, there can be no trespass. He cited the case of Salako v. Dosunmu (1997) 7 SCNJ 278. The learned Counsel further submitted that a trespass is not committed by a party who has a right to possession or who is in actual possession. He cited Universal Vulcanizing (Nig.) Ltd. v. Ijesha United Trading & Transport Co. Ltd. (1992) 9 NWLR (Pt. 388) 388, (1992) 11/12 SCNJ 243.
Arguing in the alternative, the learned Counsel contended that he appellant roofed the building. He observed that this singular act improved the value of the property in dispute.
It is his view that taking into account the said improvement, the N100,000.00 awarded as costs by the lower court cannot be justified. He observed that the lower court did not give any reason for awarding such a huge amount as costs. It is his view that the court should have shown how it arrived at the amount. He cited Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1, (1996) 7 SCNJ 240. He urged the court to resolve the issue in favour of the appellant.
In his reply, Chief Olorunisola, SAN, of counsel, reminded the court that the findings of the lower court were:-
1. The 1st respondent erected a fence on the land in dispute; and
2. P.W.2, the caretaker of the 1st caretaker of the 1st respondent farmed on the land.
The learned Senior Counsel submitted that this amounts to being in an exclusive possession. He cited the following cases:- Ladipo v. Ajani (1997) 8 NWLR (Pt. 517)  356, (1997) 7 SCNJ 466; Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381, (1996) 4 SCNJ 251.
The learned Senior Counsel submitted that the case of Salako v. Dosunmu supra relied on by the counsel for the appellant is not apposite to this case. This is because, according to the learned Senior Counsel, in the instant case, the sale is not voidable.
He observed that the lower court gave its reasons for awarding N100,000.00 as damages to the 1st respondent. In the view of the learned Senior Counsel, it is an exercise of the discretionary power of a trial Judge to determine what to award as damages. He cited the case of Issa v. UBN Ltd. (1993) 4 NWLR (Pt.288) 502.
He urged the court to resolve the issue in favour of the respondents.
Before I consider issue two, I have first to look at the findings made by the lower court in respect of occupation or otherwise of the land in dispute. I consider this important because whether the appellant sufficiently established possession of the land in dispute is a question of facts.
It is clear from the record of proceedings that the lower court believed the evidence of the 1st respondent that after she had purchased the land in 1986, he erected a fence round it. She also permitted her caretaker P.W.2, to farm on the land. These acts show  that the 1st respondent was in possession of the land in dispute.
It is now accepted that the slightest possession in a party enables that party to maintain an action in trespass if the other party cannot show a better title. See Nwosu v. Otunola (1974) 1 All NLR (Pt. 1) 533.It is the view of Akinlaja, Esq., of counsel that because the appellant entered the land in dispute on the basis of a conveyance made to him by the original owner of the land, Mrs. Oganah, he cannot be liable for damages to the 1st respondent. The learned counsel placed reliance on the case of Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) 371, (1997) 7 SCNJ 278. I do not share that view.
For one thing the facts of the two cases are different. At the time the appellant negotiated with Mrs. Oganah for the sale of the land, the latter had extinguished her interest. Since she had no interest to convey to the appellant, the transaction cannot be voidable.
The point had to be made that the fact that the appellant entered the land in dispute and roofed the building thereon does not render the possession of the land by the 1st respondent in exclusive. There is nothing like concurrent possession of land in law. The possession by the 1st respondent would cease to be exclusive if the appellant had entered the land lawfully. See Patrick Ogbu & Ors. v. Fidelis Ani & Ors. (1994) 7 NWLR (Pt.355) 128. The entry of the land in dispute by the appellant amounts to unjustifiable intrusion or interference upon the said land which the 1st respondent is in an exclusive possession.
It was submitted by Akinlaja, Esq., of counsel, that the appellant by roofing the building on the land in dispute, added to the value of the property. That may well be the case. The law is that once there is trespass an action in damages lies even where no actual damage is done to the land or on any fixture thereon. Alhaji Moriyamo Adesanya v. Adetayo O. Otuewu & Ors. (1993) 1 NWLR (Pt. 270) p. 414. Accordingly, the lower court was right in awarding damages to the respondent.
The lower court awarded N100,000.00 general damages to the 1st respondent. The learned trial Judge gave reasons for awarding such an amount. One of the reasons in that:-
“In a situation where the 1st respondent entered onto the plaintiff’s property and altered the character of same & depriving her of its development is a violent invasion of the plaintiff’s possessory title.”
It is now accepted that in an award of general damages, a trial court has the discretion to make its own assessment and this will not be set aside by an appeal court except, the award is manifestly too high or too low or awarded on a wrong principle.
It is in evidence that the 1st respondent started arrangement for the construction of the building in 1997. It was at that point in time, that she discovered the trespass by the appellant. She then brought an action on the 16th of April, 1998, to redress the damage done.
Judgment in the case was given in April, 2002. A period of four years from the date the action was instituted. Within that period, the 1st respondent could not do any thing on the land. On a calm consideration of these facts and others, it cannot be said that the award of N100,000.00 by the lower court to the 1st respondent as general damages is manifestly too high. I will not disturb the award.
Issue 2 is therefore resolved in favour of the respondents.
In the final analysis, this appeal must fail. And, it is accordingly dismissed. The judgment of Bamigbola, J. delivered on 25/04/2002 is hereby, affirmed.
Appeal is dismissed. No order as to costs.

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.: I have had the privilege of reading, in draft, the lead judgment of my learned brother, Amaizu, JCA, just delivered. I agree with his reasoning and conclusion, that the appeal lacks merit and should be dismissed.
There is no dispute that the 1st respondent bought the property in 1986 and was handed over the original title deeds to the property by the agent of the original owner. There is also the evidence that the appellant allegedly bought the property in 1990, from the alleged original owner, who allegedly told the appellant that she had not hitherto sold or mortgaged the property to anyone and that she had misplaced or lost the original documents. The appellant has sought to make heavy weather of what the original owner, Mrs. Oganah, who was not called as a witness in the proceedings, allegedly told him in the absence of the other parties to the proceedings. It is trite law that that piece of evidence is hearsay and therefore, inadmissible in evidence in proof of the truth of the loss or misplacement of the original title deeds to the property.
From the evidence, it is clear that the 1st respondent’s purchase was first in time and takes priority over that of the appellant particularly, since the original documents of title were handed over to him after the transaction. The validity of the title of the 1st respondent cannot be questioned even by the alleged conveyance to the appellant by the alleged original owner because by the time she allegedly signed the conveyance, she had nothing more to sell, the property having been validly sold to the 1st respondent. The law is nemo dot quod non habet.
The appellant seems to be carried away by the glamour of English law on conveyancing and its effects on title to land or property forgetting the fact that there can be valid sale of immovable property under customary law, which does not recognise supremacy of conveyances in determining valid sale. Under customary law, the sale can be proved by calling the witnesses, who were present at the sale and handing over of the property. This the 1st respondent did.
That apart, even under English law, which seems to be the main plank of the appellant’s case, the first respondent did obtain, by the transaction in issue an equitable title to the property having regards to the facts and circumstances of the case, which equitable title is as good as legal title.
In conclusion, I too, hold the view that there is no merit in the appeal which is dismissed accordingly. I abide by the consequential orders contained in the lead judgment of my learned brother, Amaizu, JCA, including the order on cost.
Appeal dismissed.

JA’AFARU MIKA’ILU, J.C.A.: I have had the preview knowledge of the leading judgment, just delivered by my learned brother, Hon. Justice P.I. Amaizu, JCA. I agree with the reasoning and the conclusion therein.
On issue 1, it is part of the averments of the appellant’s counsel that for a purchaser under the English Law to acquire legal title, there must be evidence of payment of purchase price, acknowledgement of the same and execution of a deed of conveyance. He has added that a deed of conveyance is a sine quo non to the acquisition of legal right over a parcel of land. He relies of Folarin v. Durojaye (11988) 1 NWLR (Pt. 70) 351, (988) 2 SCNJ 212, 222 and Ishola Williams v. Hammond (1988) 1 NWLR (Pt. 71) 481, (1988) 2 SCNJ 318; 339. Upon this, he has submitted that the trial court was wrong in holding that the possession of exhibits p1 – p6 as well as p7 and D14 by the 2nd defendant constituted a sufficient evidence of legal title of the 2nd defendant.
He has further explained that requirement of execution of the deed of conveyance is clearly lacking. I think the position of the law is that, a person who purchased a parcel of land and paid for it without obtaining a deed of conveyance has an equitable interest in the land. That equitable interest gives him right to institute an action before a court for a specific performance. See Chiroma v. Suwa (1986) 1 NWLR (Pt.19) 751 and Osagie v. Oyeyinka & Anr. (1987) 3 NWLR (Pt. 59) 144, (1987) 6 SCNJ 94. We do apply law and equity, and equity will not allow original owner of a land to go around ‘selling’ his right over the land to any other person just because no deed of conveyance had been executed between him and the original buyer. He had made himself bound to execute the deed of conveyance by the acceptance of consideration from the buyer.
In our case, Mrs. Oganah, the original owner sold the piece of land to the 2nd defendant since 1986. In 1990, when she purportedly sold it to the appellant, she had nothing to sell. The 2nd defendant could pass his acquired interest on the land to the respondent.
The appeal is dismissed with no costs.

Appeal dismissed.

 

Appearances

Dayo Akinlaja, Esq. (with him, Sunday Olawepo, Esq.)For Appellant

 

AND

Chief P. A. Olorunnisola, SAN (with him, Chief A. Fajenyo)For Respondent

 

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