ANRETI v. IDRIS
(2022)LCN/16227(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 11, 2022
CA/L/1222/2014
Before Our Lordships:
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
MR. QUDUS ANRETI APPELANT(S)
And
MRS. KAFILAT IDRIS RESPONDENT(S)
RATIO
THE WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
That there are five ways of proving title to land under our jurisprudence is not in doubt, as that position of law has been settled in a long line of decided cases such as Idundun vs. Okumagba (1976) LPELR-1431 (SC); Oyadare vs Keji & Anor (2005) LPELR-2861 (SC); Adeyefa & Ors vs. Bamgboye (SC); (2014) LPELR-22884 (SC); Odunukwe vs. Ofomata & Anor (2010) LPELR-2250 (SC); Ayorinde & Ors vs. Sogunro & Ors (2012) LPELR-7808 (SC); Arije vs. Arije (2018) LPELR-44193. The lower Court has alluded to this settled position of the law in its judgment at page 309 of the Record. The five ways are:
1. By traditional evidence.
2. By production of documents of title.
3. By acts of the person claiming the land over a sufficient length of time numerous and positive enough as to warrant the inference that the person is the true owner.
4. Acts of long possession and enjoyment of the land.
5. Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See Addah vs. Ubandawaki (supra). In law, a Claimant to title to land in dispute is not required to prove more than one of the five ways of proof of title to land, but where he fails to satisfy the Court on any one or more of the five ways of proof of title he relies on as his root of title, then his claim to title to land must fail. In other words, a Claimant can and is at liberty to rely on more than one of the five ways of proof of title. He is not under any compulsion to rely only on one of the five ways of proof of title to land. All that is paramount and required of him is to adduce sufficient, cogent and credible evidence in proof of either one or more of the five ways of proof of title relied upon by him. He must succeed on the strength of his own case and not on the weakness of the defence. Refer to Arije vs. Arije & Ors (2018) LPELR-44193 (SC). PER SIRAJO, J.C.A.
WHETHER OR NOT A DECLARATORY RELIEF CAN BE GRANTED WITHOUT CREDIBLE EVIDENCE
The law is settled that declaratory relief cannot be granted without cogent and credible evidence by the Claimant even where the Defendant expressly admitted same in the pleadings, the said relief being equitable in nature. See Ayanru vs Mandilas Ltd (2007) 4 SCNJ 288; Chukwumah vs. S.P.D.C. (Nigeria) Ltd (1993) LPELR-864 (SC); Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 at 767. Ladoja vs. INEC (2007) LPELR-1738 (SC); Ogolo vs. Ogolo (2003) LPELR-2309 SC). PER SIRAJO, J.C.A.
THE MEANING OF A PERVERSE DECISION OF THE COURT
A decision is perverse if it does not draw from the legal evidence on record, or where the trial Judge took into account matters which he ought not to have taken into account or where he shuts his eyes to the obvious. A finding or decision is also perverse if it is speculative or if it is reached as a result of wrong consideration of the evidence or wrong application of procedural or substantive law. See Atolagbe vs. Shorun (1985) LPELR-592 (SC); Iwuoha & Anor vs. Nipost Ltd & Anor (2003) LPELR-1569 (SC); Arowolo vs Olowookere (2011) LPELR-561 (SC). PER SIRAJO, J.C.A.
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): Before the High Court of Lagos State, the Claimant/Respondent claimed against the Appellant and another (Person Unknown), the following reliefs:
“(a). A DECLARATION that the landed properties of late Alhaja Mulikat Amope Anreti situate at Disu Esan Street, Orile Iganmu and No. 50, Old Otta Road, Pipeline junction, Ile Epo Bus Stop, Abule Egba, Lagos State belong to the Claimant, 1st Defendant and other surviving children of late Alhaja Mulikat Amope Anreti jointly.
(b). A DECLARATION that the purported sale of the partly developed landed property of late Alhaja Mulikat Amope Anreti situate at No. 50, Old Otta Road, Abule Egba, Lagos State by the 1st Defendant to the 2nd Defendant without the knowledge, authority and consent of the Claimant is a nullity.
(c). AN ORDER of the Honourable Court setting aside the purported sale of the partly developed landed property at No. 50, Old Otta Road, Abule Egba, Lagos State by the 1st Defendant to the 2nd Defendant.
(d). AN ORDER of the Honourable Court directing the 1st Defendant to return the original title documents of the landed properties late Alhaja Mulikat Amope Anreti situate at Disu Esan Street, Orile Iganmu and No. 50, Old Otta Road, Pipeline junction, Ile Epo Bus Stop, Abule Egba, Lagos State to the Claimant as the eldest child of the Deceased FORTHWITH.”
By his Statement of Defence, the Appellant admitted that the property situate at No. 30 Disu Esan Street, Orile Iganmu, owned by their late mother, is jointly inherited by him, the Claimant and other surviving children of their late mother. He however denied the claim of the Claimant/Respondent with respect to the partly developed property at No. 50, Old Otta Road, Abule Egba, Lagos State and asserted that the said property belonged to him, as same was purchased for him by his father, being the only male child of his mother. The Person Unknown did not show up before the lower Court and so did not file any process. The facts leading to this appeal are that the Appellant and Respondents are children of the late Alhaja Mulikat Amope Anreti who died intestate on 26/05/2006 at Lagos Island leaving behind three other children aside the Appellant and Respondent. The Respondent is the eldest of the five surviving children and was born during her mother’s previous marriage. She did not share the same father with her other four siblings. Upon the death of their mother, the Appellant sold the partly developed property at No. 50, Old Otta Road, Abule Egba, Lagos, which the Respondent contends belongs to all the children of late Alhaja Mulikat Amope Anreti by inheritance. At the conclusion of trial before the lower Court, F.O. Atilade, J. (as she then was), entered judgment in favour of the Claimant/Respondent on 19/09/2014, as contained at pages 300 – 313 of the Record of Appeal, an action which irked the Appellant, leading to the filing of this appeal. The Notice of Appeal, predicated on four grounds of appeal, at pages 331 – 334 of the Record, was dated and filed on 24/10/2014. By the leave of this Court granted on 05/02/2019, the Appellant filed an Amended Notice of Appeal with five grounds of appeal on 27/02/2019. The Appellant’s Brief of Argument, founded on the Amended Notice of Appeal was filed on 10/04/2019 and served on the Respondent on 12/07/2019. When the appeal was called for hearing on 29/11/2021, the Respondent was neither in Court nor represented by counsel. Having been satisfied that the Respondent was served with hard copy of the hearing notice on 25/11/2021, the Court directed that the appeal be argued. The Respondent did not file Brief of Argument. Learned counsel for the Appellant, Yakubu Galadima Esq., adopted the Appellant’s Brief of Argument wherein he crafted three issues for determination as follows:
i. Whether, on the proper evaluation of the evidence presented in the lower Court, the Respondent was entitled to judgment? (Formulated from ground one of the Notice of Appeal).
ii. Whether the lower Court was right when, in arriving at its decision, it shifted the burden of proof of title to the land in dispute to the Appellant? (Formulated from ground 2 of the Notice of Appeal).
iii. Whether the Respondent (then Claimant) established any interest better than that of the Appellant (the Defendant) to entitle it (sic: her) to possession of the property situate at 50, Old Otta Road, Pipeline junction, Abule Egba, Lagos? (Formulated from ground four of the Notice of Appeal).
The three issues formulated by the Appellant reproduced above are very much interrelated as all of them touched on, and are concerned with, the all-important issue of proof. The essence of formulating issues for determination in an appeal is to narrow and condense the issues in the grounds of appeal into a compact issue or issues which are critical and fundamental for the determination of the appeal. See G. Chitex Industries Ltd vs. Oceanic Bank International (Nig.) Ltd (2005) LPELR-1293 (SC); Akomolafe vs. Guardian Press Ltd & Ors (2010) LPELR-366 (SC).
It is not necessary that an issue must be formulated on each ground of appeal. Nothing can be gained from formulating multiple issues if one or two comprehensive issue(s) can resolve the appeal. In my humble view, the three issues crafted by the Appellant can be coalesced into two issues for determination, with issue one standing alone, while issues two and three are reformulated into one issue as follows:
Whether, from the evidence adduced before the lower Court, the Claimant/Respondent has proved her claim to entitle her to the declarations and orders made by the lower Court.
Before going into the argument and resolution of the issue thus formulated by me, I would like to observe that grounds three and five of the Amended Notice of Appeal from which issues were not formulated by the Appellant are in law, deemed abandoned. See Nwagbara vs. Jadcom Ltd (2021) LPELR-55329 (SC); The State vs. Omoyele (2016) LPELR-40842; Salihu vs. Wasiu (2016) LPELR-26062 (SC). The said grounds are accordingly struck out.
Argument.
After reciting the five ways of proving title to land as laid down by the Supreme Court in the cases of Idundun vs. Okumagba (1976) 9-10 SC 227; Mogaji vs. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt.7) 393; Osidele vs Sokunbi (2012) 15 NWLR (Pt.1324) 470; Nruamah vs. Ebuzoeme (2013) 13 NWLR (Pt.1371) 474; Addah & Ors vs. Ubandawaki (2015) LPELR-24266 (SC), learned counsel for the Appellant submitted that the lower Court failed to properly evaluate exhibits A, A1, A2 and A3 tendered by the Respondent in holding that the said exhibits entitled the Respondent to judgment, relying on the case of Ita & Ors vs. Ita & Anor (2013) LPELR-22007 (CA). He contended that even though submission of documents of title is one of the ways of proving title to land, such document(s) must be of such character as to be capable of conferring valid title on the party relying on it as espoused by the Supreme Court in Romaine vs. Romaine (1992) 4 NWLR 650. In analysing the exhibits relied upon by the lower Court to enter judgment for the Respondent, counsel submitted that exhibit A is a rent receipt which relates to a different property from the one in dispute. He argued that exhibits A1, A2 and A3 apart from relating to a different property from the one in dispute, they were issued on 18/11/2006 and 26/03/2007 after the death of Alhaja Mulikat Anreti on 26/05/2006. The Court was referred to the exhibits at pages 152 – 167 of the Record. Learned counsel further referred to page 311 of the Record where the misdirection of the lower Court as if affects exhibits A, A1, A2 and A3, which has no nexus with the property in dispute, is apparent, and upon which misdirection judgment was given in favour of the Respondent. It was submitted that where a Court misapprehends a party’s case and goes to deduce on same as misunderstood, such decision will be liable to be set aside on appeal for being perverse, placing reliance on Chukwu & Anor vs. INEC & Ors (2014) LPELR-25015 (SC).
On the second issue, learned counsel attacked the judgment of the lower Court when at pages 311, 312 and 313 of the Record it shifted the burden of proof to the Appellant, as an affront to our law and goes contrary to decided authorities on the burden of proof of title to land, which is on the party who asserts. To buttress this submission, counsel cited the cases of Akporue & Anor vs. Okei & 2 Ors (1973) 12 SC 6; Balogun vs. Labiran (1988) NWLR (Pt.80)66; Okeshola vs. Governor of Oyo State (2000) 13 NWLR (Pt.685) 494. The Court is urged to allow the appeal as the judgment of the lower Court is perverse in that the evidence was not properly evaluated and the burden of proof was wrongly placed on the Appellant, thereby occasioning a miscarriage of justice.
Resolution of issues
Realizing that the consideration and determination of Issue 1 will naturally and sequentially dovetail into Issue 2 and vice versa, as the two issues are interrelated, I deem it expedient to consider them together. That there are five ways of proving title to land under our jurisprudence is not in doubt, as that position of law has been settled in a long line of decided cases such as Idundun vs. Okumagba (1976) LPELR-1431 (SC); Oyadare vs Keji & Anor (2005) LPELR-2861 (SC); Adeyefa & Ors vs. Bamgboye (SC); (2014) LPELR-22884 (SC); Odunukwe vs. Ofomata & Anor (2010) LPELR-2250 (SC); Ayorinde & Ors vs. Sogunro & Ors (2012) LPELR-7808 (SC); Arije vs. Arije (2018) LPELR-44193. The lower Court has alluded to this settled position of the law in its judgment at page 309 of the Record. The five ways are:
1. By traditional evidence.
2. By production of documents of title.
3. By acts of the person claiming the land over a sufficient length of time numerous and positive enough as to warrant the inference that the person is the true owner.
4. Acts of long possession and enjoyment of the land.
5. Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See Addah vs. Ubandawaki (supra). In law, a Claimant to title to land in dispute is not required to prove more than one of the five ways of proof of title to land, but where he fails to satisfy the Court on any one or more of the five ways of proof of title he relies on as his root of title, then his claim to title to land must fail. In other words, a Claimant can and is at liberty to rely on more than one of the five ways of proof of title. He is not under any compulsion to rely only on one of the five ways of proof of title to land. All that is paramount and required of him is to adduce sufficient, cogent and credible evidence in proof of either one or more of the five ways of proof of title relied upon by him. He must succeed on the strength of his own case and not on the weakness of the defence. Refer to Arije vs. Arije & Ors (2018) LPELR-44193 (SC).
In the case at hand, the Appellant contested the claim of the Respondent at the lower Court that property No. 50, Old Otta Road, Abule Egba, Lagos State belongs to the Respondent, the Appellant and their three siblings by way of inheritance from their late mother, Alhaja Mulikat Amope Anreti. The Appellant averred in his Statement of Defence that the property belongs to him as same was purchased for him by his father. By this contest, the duty of proving that the said property belongs to their late mother and now to them by inheritance, rests squarely on the Claimant/Respondent. It is only when that initial burden is discharged by the Claimant/Respondent that the burden of proving that the property belongs to the Appellant will shift to him. But as the Appellant did not counter claim, there is no initial burden on him. In civil cases, the burden of proof is on the party who will fail if no evidence is adduced on either side, i.e., the Claimant/Respondent in the instant case. This is the import of Section 133 of the Evidence Act, which provides:
“(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
Therefore, the first duty of proving that the disputed property at No. 50, Old Otta Road, Pipeline junction, Abule Egba, Lagos, rests on the Claimant/Respondent. It is only when that has been proved to the satisfaction of the Court, that the Defendant/Appellant would be required to lead evidence in rebuttal or in proof of his opposing position. Until the onus of proof cast on the Claimant by law is discharged, the onus does not shift. In other words, it is after a Claimant has proved his case that the burden of proof shifts to the Defendant. See Buhari vs. Obasanjo (2005) 2 NWLR (Pt.910) 241; CPC vs. INEC & Ors (2011) LPELR-8257 (SC); Ohochukwu vs. A.G. Rivers State & Ors (2012) LPELR-7849 (SC); Mbanefo vs. Agbu & Anor (2014) LPELR-22147 (SC); Okoye & Ors vs. Nwankwo (2014) LPELR-23172 (SC).
In entering judgment for the Respondent, the lower Court placed heavy reliance on exhibits A, A1, A2 and A3. In its judgment, the lower Court stated at page 311 lines 18 – 23 thus:
“The evidence of the Claimant was that the properties were that of their mother and same should be shared jointly, she tendered exhibits A, A1, A2 and A3 in respect of this. The 1st Defendant did not in any way controvert or challenged the exhibits tendered by the Claimant by the production of any other receipts issued by him as the owner of the property. It is settled law that mere averment without proof of facts pleaded is no proof, if facts are not admitted.”
It is necessary to examine those exhibits to see how they constitute proof of the case of the Respondent as Claimant before the lower Court. None of the exhibits tendered by the Respondent before the lower Court is a document of title of the disputed property. Not even a purchase receipt of the property by the late Alhaja Mulikat Amope Anreti was produced and tendered in evidence. None of the tenants on the property was called to testify that the property was let to him/her by or on behalf of the late Alhaja Mulikat Amope Anreti. Upon a careful examination of all the nine (9) exhibits tendered by the Respondent marked A, A1 – A8, I found that only exhibit A predates the deceased, Alhaja Mulikat Amope Anreti. All the other exhibits were made after her death on 26/05/2006. Exhibit A is a counterfoil copy of a rent receipt issued by Alhaja Mulikatu Anreti to one Yisa Agbara Ojo for a shop at Oke Odo, dated 20/06/2004. This is the only exhibit that predates the deceased. Exhibit A relates to a shop at Oke Odo and not No. 50, Old Otta Road, Abule Egba, which is the property in dispute between the parties. Exhibits A1 and A2 are invoices for purchase of certain items, allegedly by the late Alhaja Mulikat Anretti dated 18/11/2006 and 26/03/2007 respectively. These invoices were made after the death of Alhaja Mulikat Anreti on 26/05/2006. The purchases in those invoices, though credited to her, could not have been made by her as she was already dead before the purchases on those invoices were made, yet her name was written as the purchaser/customer. These two invoices made after the death of late Alhaja Mulikat Amope Anretti are far from being proof of ownership of No. 50, Old Otta Road, Pipeline junction, Abule Egba. As for exhibit A3, it is a breakdown of expenditure of the descendants of Alhaja Mulikat Anretti for the half year of 2007, a year after her demise. This is also not a document of title. The reliefs claimed by the Respondent at the lower Court, and which were granted, included declaratory reliefs. The law is settled that declaratory relief cannot be granted without cogent and credible evidence by the Claimant even where the Defendant expressly admitted same in the pleadings, the said relief being equitable in nature. See Ayanru vs Mandilas Ltd (2007) 4 SCNJ 288; Chukwumah vs. S.P.D.C. (Nigeria) Ltd (1993) LPELR-864 (SC); Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 @ 767. Ladoja vs. INEC (2007) LPELR-1738 (SC); Ogolo vs. Ogolo (2003) LPELR-2309 SC). It beats my imagination how the lower Court evaluated these documents (Exhibits A, A1, A2 and A3) and ascribed probative value to them as constituting proof of the Respondent’s case. There is nothing in those exhibits to prove the assertion of the Respondent that the property at No. 50, Old Otta Road, Abule Egba belongs to the Respondent, Appellant and their three other siblings by inheritance from their late mother, Alhaja Mulikat Amope Anreti, to warrant the shifting of the burden of proof to the Appellant, as did the lower Court. The lower Court was patently wrong in shifting the burden of proof to the Appellant when the Respondent has not established her case. That singular action of the lower Court in shifting the burden of proof to the Appellant has no doubt led to a miscarriage of justice. In addition, the decision of the lower Court that the Respondent has proved her case is not supported by any legal evidence on Record as analysed above, thereby rendering the decision perverse. A decision is perverse if it does not draw from the legal evidence on record, or where the trial Judge took into account matters which he ought not to have taken into account or where he shuts his eyes to the obvious. A finding or decision is also perverse if it is speculative or if it is reached as a result of wrong consideration of the evidence or wrong application of procedural or substantive law. See Atolagbe vs. Shorun (1985) LPELR-592 (SC); Iwuoha & Anor vs. Nipost Ltd & Anor (2003) LPELR-1569 (SC); Arowolo vs Olowookere (2011) LPELR-561 (SC). If the lower Court had properly evaluated the evidence on record, it would have arrived at a different conclusion that exhibits A, A1, A2 and A3 cannot and does not prove the case of the Respondent. The lower Court wrongly applied the legal principle to correctly ascertained fact, i.e., misinterpreting the import of exhibits A, A1, A2 and A3 which have no evidential value in proof of ownership of landed property. That decision is perverse. Being a perverse decision, this Court must interfere by setting it aside for occasioning a miscarriage of justice. Consequently, this appeal is allowed. Judgment of the High Court of Lagos State in Suit No. ID/22/2010 delivered on 19/09/2014 is hereby set aside. Considering that the parties to this appeal are siblings, I make no order as to costs.
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother Muhammad Ibrahim Sirajo, JCA and I agree with his reasoning and conclusion. A quick look at the ratio decidendi in the judgment of the lower Court, shows that the Court erred in its evaluation of the evidence tendered by the Respondent. The following is the reason for the decision of the lower Court:
“The evidence of the claimant was that the properties were that of their mother and same should be shared jointly. She tendered exhibits A, A1, A2 and A3 in respect of this. The 1st Defendant did not in anyway controvert or challenge the exhibits tendered by the Claimant by the production of any other receipts issued by him as the owner of the property. It is settled law that mere averment without proof of facts pleaded is no proof, if facts are admitted.”
Now the mere fact that the Appellant did not in anyway controvert or challenge the exhibits tendered by the Respondent does not ipso facto mean that the Respondent has proved her case. The settled position of the law is that he who asserts must prove: Section 131(1) of the Evidence Act, 2011. See also SHARING CROSS EDUCATIONAL SERVICES LTD v. UMARU ADAMU ENTERPRISES LTD & ORS (2020) LPELR-49567 (SC) 7-8. It is indeed a maxim of law that: affirmanti non neganti incumbit probation — meaning, the burden of proof is upon him who affirms, not upon him who denies. Did the Respondent by her tendered exhibits prove that the disputed property was owned by her late mother? The answer to this question is clearly in the negative. It was therefore a perverse decision of the lower Court when on the premise that the Appellant did not controvert or challenge the exhibits tendered by the Respondent, it entered judgment for the Respondent. Had the lower Court evaluated the evidence correctly, it would no doubt have reached a different decision. For this reason, and the more elaborate reasons given by my lord in the lead judgment, the appeal is allowed and the judgment of the lower Court is set aside.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: Before now, I had carefully read in advance the Judgement just delivered by my learned brother, MUHAMMAD IBRAHIM SIRAJO. JCA
It is a settled law that burden of proof of a root of title to land rests squarely on the claimant until discharged. In other words, the onus of proof lies on a Plaintiff to prove his/her title and he succeeds on the strength of his own case. See ASHIRU v. OLUKOYA (2006) LPELR- 580(SC). By virtue of the authority of Idundun & Ors v. Okumagba 1976 10 S.C.277, a Claimant in a suit of title to land must prove one of the five (5) ways highlighted in this case law authority, this the Respondent has failed to establish by the totality of evidence adduced before the Lower Court.
Therefore, I am in agreement with my Learned Brother that the Trial Court was wrong to have put the burden of proof on the Appellant and failure of the Respondent to adduce enough evidence to prove its title to the land in contention jeopardizes its claim.
Further, it is trite that if a trial Court fails to properly evaluate the evidence before it, an Appellate Court will intervene in order to save the situation. See the cases of BUNGE VS GOV RIVERS STATE & ORS (2006) LPELR-816(SC).
In this present case, based on the foregoing, a thorough evaluation of evidence from the Parties was not properly carried out and I totally agree with the reasoning and conclusion arrived by my learned brother. It is meet and just to set aside the judgment rendered by the Lower Court and accordingly allow the Appeal.
Appearances:
Yakubu Galadima Esq. For Appellant(s)
No appearance For Respondent(s)
