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BIG JOE VENTURES LTD v. IMALELE (2022)

BIG JOE VENTURES LTD v. IMALELE

(2022)LCN/16029(CA) 

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 23, 2022

CA/B/371/17

Before Our Lordships:

 

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

BIG JOE VENTURES LIMITED APPELANT(S)

And

UYI IMALELE (DEFENDING BY HIS NEXT FRIEND MRS. FLORENCE IMALELE) RESPONDENT(S)

 

RATIO:

IT IS THE DUTY OF THE PLAINTIFF TO ADDUCE SUFFICIENT AND CREDIBLE EVIDENCE TO ESTABLISH THE MODE OF ACUISITION OF HIS TITLE

However, it is the duty of the Plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the Plaintiff may take advantage of the Defendant’s evidence where it supports his case. See: Onwugbufor V. Okoye (1996) 1 NWLR (Pt.424) 252; MEMUDU AJIBOYE V. ALHAJI OLOYEDE ISHOLA (2006) LPELR-301(SC). UCHECHUKWU ONYEMENAM, J.C.A

THE SATISFACTION OF THE COURT IN ORDER TO SUCCEED IN A CLAIM FOR THE DECLARATION OF TITLE TO LAND

According to ADEKEYE, J.S.C. in OBINECHE & ORS V. AKUSOBI & ORS (2010) 12 NWLR PART 1208 P. 383; in order to succeed in a claim for the declaration of title to land, the Court must be satisfied as to:
a. The precise nature of the title claimed that is to say, whether it is a title by virtue of original ownership or customary law of long possession or otherwise.
b. Evidence establishing title of the nature claimed must be credible, convincing and equivocal. See also: SHEHU ABDULLAHI JAURO V. GONI BULAMA MODU (2021) LPELR-56158(CA).
The act of vesting legal title in respect of a piece of land in a person is a matter of law to be deduced from the facts and evidence admitted. See: Nasiru V. Abubakar (1997) 4 NWLR pt.497 pg. 32. UCHECHUKWU ONYEMENAM, J.C.A

A PLAINTIFF MUST PROVE HIS ROOT OF TITLE TO THE LAND IF HE SEEKS DECLARATION OF TITLE TON LAND

A Plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including where necessary, the family that originally owned the land. The onus is not discharged even where the scales are evenly weighed between them. Archibong V. Edak (2006) 7 NWLR pt. 980, Okoko V. Dakolo (2006) 14 NWLR pt.1000 pg.401. Dike V. Okoloedo (1999) 10 NWLR pt.623 pg. 359. Otanma V. Youdubagha (2006) 2 NWLR pg.969 pg.337, Mogaji V. Cadbury (Nig.) Ltd. & Ors (1985) 2 NWLR pt.7 pg.393. Odofin V. Ayoola (1984) 11 SC pg. 72. Owoade V. Omitola (1988) 2 NWLR pt.77 pg.413, Ndukwe V. Acha (1998) 6 NWLR pt.553 pg.25; MICHAEL EYO V. EMEKA COLLINS ONUOHA & ANOR (2011) LPELR-1873 (SC). UCHECHUKWU ONYEMENAM, J.C.A

THE PRINCIPLE OF LAW ON LONG POSSESSION OF LAND AND TRACING THE ROOT OF TITLE WHERE THERE ARE COMPETING TITLES

I have painstakingly read the evidence of the Appellant as well as that of the Respondent and I have equally gone through the judgment of the trial Court. It is not in dispute that both parties averred to have derived their title from the Oba respectively. The law is settled that where there are competing titles, which trace their root to the same source, the one who can show a better title prevails. See: Omiyale V. Macaulay (2009) FWLR (Pt. 479) 399: Otukpo V. John (2013) ALL FWLR (Pt. 661) 1509; (2012) LPELR-25053 (SC); THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH OF CHRIST V. THE REGISTERED TRUSTEES OF GRACE CHURCH OF CHRIST (2021) LPELR-55340 (SC).
Importantly, the principle of law on long possession of land as relied on by the Respondent is that a possessor has a presumptive title, that is to say, is presumed to be absolutely the owner until the contrary is shown, and is protected by the law in his possession against all who cannot show better title to the possession than he has. See: MR. OLUFEMI AYORINDE V. CHIEF AYODELE KUFORIJI (2022) LPELR-56600(SC). In other words, the Respondent in the circumstance would only be presumed to be the owner of the land in dispute had the Appellant failed to prove better title to the land. UCHECHUKWU ONYEMENAM, J.C.A

THE BURDEN OF PROVING A COUNTER CLAIM IS ON THE COUNTER -CLAIMANT

The law is trite that a Counter-Claimant, just like the Plaintiff in the main action, has a duty to prove his counter-claim if he hoped to obtain judgment. See: Jeric Nigeria Ltd V. Union Bank of Nigeria Plc. (2001) 7 WRN 1, 18; Prime Merchant Bank V. Man-Mountain Company (2000) 6 WRN 130, 134; Walter V. Skyll Nig. Ltd (2000) 13 WRN 60, 98. In effect, the burden of proving a Counter Claim is on the counter claimant as he is the party who would fail if no evidence is adduced to establish it. See: N.B.N. Ltd V. U.C. Holding Ltd(2004) 13 NWLR (Pt. 891) 436, 454; Umeojiako V. Ezeanamuo (1990) 1 NWLR (Pt. 126) 253, 267; MICHAEL SUNDAY OROJA & ORS V. EBENEZER ILO ADENIYI & ORS (2017) LPELR-41985(SC). UCHECHUKWU ONYEMENAM, J.C.A

A DEFENDANT HAS NO DUTY TO PROVE HIS TITLE TO THE LAND IN DISPUTE

Ordinarily, and without controversy, in a claim for declaration of title as in the case at hand, if a Defendant does not file a counter-claim, the burden is heavier on the Plaintiff as Claimant to prove his title to the land in dispute. In that circumstance, a Defendant has no duty at all to prove his title to the same land in dispute. See: Adekanmbi V. Jangbon (2007) All FWLR (Pt. 383) 152 at 160 (2007) 24 WRN 45 at 57; Elias V. Disu (1962) All NLR (Pt. 1) 214 at 220 (1962) 1 SCNLR 361; GODWIN C. ONOVO & ORS V. FERDINAND MBA & ORS (2014) LPELR- 23035(SC). UCHECHUKWU ONYEMENAM, J.C.A

AN ACADEMIC ISSUES IS ONE WHICH DOES NOT REQUIRE ANSWER OR ADJUDICATION BY A COURT OF LAW

I view that the instant issue which anchors on proof and grant of the Respondent’s counter-claim has become academic and of no value, having held that the Appellant proved its case. An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case at hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not inure any right or benefit on the successful party. See: ARDO V. INEC & ORS (2017) LPELR-41919 (SC); ADALMA TANKERS BUNKERING SERVICES LIMITED & ANOR V. CENTRAL BANK OF NIGERIA & ORS (2022) LPELR-57036(SC); DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR-55887(SC); DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR- 55887 (SC); DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR-55887(SC); UMAR MOHAMMED NASKO & ANOR V. ABUBAKAR BELLO & ORS (2020) LPELR-52530 (SC). UCHECHUKWU ONYEMENAM, J.C.A

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant appealed against the Judgment of the High Court of Justice, Edo State, Benin Division delivered by E.O. Ahamioje J. on 1st June, 2016, in Suit No. B/723/2010.

The Appellant was the Claimant and the Respondent, the Defendant at the trial Court; wherein the Appellant claimed as follows:
1. “A DECLARATION that the Plaintiff is entitled to a statutory right of occupancy over all that parcel of land measuring 80 feet by 100 feet, lying and situate opposite Big Joe Ventures Limited, along Benin, Auchi road, Aduwawa quarters, Benin City bearing Ward beacons no. 1016, 1017, 1018 and 1019.
2. N5,000,000.00 (Five Million Naira) as damage for trespass.
3. PERPETUAL INJUCTION restraining the Defendant by themselves, servant, privies, assigns, agents or any other persons whosoever from entering and trespassing upon, interfering or in any way disturbing the Plaintiffs’ peaceful and exclusive possession and enjoyment of the said parcel of land measuring 80 feet by 100 feet, bearing ward beacon no. 1016, 1017, 1018 and 1019 lying and situate opposite Big Joe Ventures Limited along Benin, Auchi road, Aduwawa Quarters, Benin City.”

In this case, the Appellant who is a transportation company is contending that the piece of land opposite its motor park belongs to it. The Appellant claimed that it bought the said piece of land measuring 80ft by 100ft from Aduwawa Community via Oba’s approval and proceeded to get its Certificate of Occupancy. He added that when he bought the land, there were stores on the land.

The Respondent, on the other hand, contended that his late father and his aunty built stores on the land in dispute in the 1990s and 2000s respectively and had been collecting rent until he died and was buried sometime in 2008 and his aunty started collecting rent until the property was shared to him. That after sharing his late father’s properties, the Igiogbe was shared to the Respondent and he continued to collect rent from the said stores. He added that he has been in peaceful position of the piece of land in dispute until the Appellant came to claim title to the land. He added that his Oba’s approval is in respect of a piece of land measuring 100ft by 100ft.

The learned trial Judge at the end of trial refused the claims of the Appellant but instead granted the Respondent’s counter claim and held as follows:
“On the whole, and after due consideration of the entire evidence adduced, I hold that the Claimant has failed to prove its claim as required by law against the Defendant. Accordingly, I hereby dismiss the Claimants claim in its entirety as lacking in merit.
Furthermore, I hold that the Defendant/Counter-Claimant has successfully proved his counter-claim as required by law against the Claimant.”

The Appellant being discontented with the decision of the trial Court proceeded to this Court via an amended notice of appeal filed on 25th January, 2015 and deemed properly filed and served on 30th January, 2018.

Counsel on both sides filed their relevant processes as required by the rules of the Court and the Appeal was heard on 28th March, 2022. As the appeal was ripe for hearing H.O. Omoregie Esq., with P.N. Uzzi Esq., and I. Iduozee-Pullen Esq., appeared for the Appellant, adopted and relied on the Appellant’s brief of argument filed on 25th January, 2018 but deemed properly filed and served on 6th October, 2021; in urging the Court to allow the appeal. The Respondent was represented by A. O. Yusuf Esq., who adopted and relied on the Respondent’s brief of argument filed on 4th November, 2021; in urging the Court to dismiss the Appeal.

H. O. Omoregie Esq., in the Appellant’s brief of argument submitted 2 issues for determination as follows:
1. Whether the trial Court was right in finding that the Respondent’s act of possession defeats the Appellant’s right of ownership.
2. Whether the trial Court was right in holding that the Respondent successfully proved his Counter-Claim in spite of not adducing evidence to establish his title to the Land in dispute.

On the other hand Alhaji A. O. Yusuf Esq., in the Respondent’s brief of argument also identified 2 issues for determination thus:
1) Whether the Appellant proved her case to so entitled her to a declaration of a Statutory Right of Occupancy over the piece or parcel of land in dispute.
2) Whether the learned trial Judge was right when he granted a declaration of possessory right to the Defendant/Counter Claimant in respect of the land in dispute.

Having regards to the respective 2 issues formulated by the parties for determination; I view the Respondent’s 2 issues adequate in the determination of this appeal owing to the Grounds of Appeal filed by the Appellant.

SUBMISSIONS ON ISSUE 1
Whether the Appellant proved her case to entitled her to a declaration of a Statutory Right of Occupancy over the piece or parcel of land in dispute

Mr. Omoregie in the Appellant’s brief of argument on this issue argued that it is evident that the Appellant proved the title of its Vendors, the Oba’s Approval given to the Appellant as well as the Certificate of Occupancy obtained by the Appellant, which granted the Land to the Appellant. He submitted that the Appellant sufficiently established its title to the Land at the trial Court by proving how the Land in dispute was transferred by the vendors to it vide Exhibit “D”. He added that the prerequisite for a valid grant of a Certificate of Occupancy is that there must not be in existence a valid title of another person with legal interest in the same land at the time the Application for a Certificate of Occupancy is made under the Act; Also, there must not be in existence at the time the Certificate was issued, a Statutory or customary owner of the land, who was not divested of his legal interest in the land prior to the grant. He cited the cases of MRS. RONKE OMIYALE V. MOBOLAJI MACAULAY & 4 ORS (2009) 46 W.R.N PAGE 46 AT 55 RATIO 8.

The learned counsel contended that the judicial authorities relied on by the trial Court to give judgment in favour of the Respondent are misleading. He argued that the fact that the Land in respect of which Exhibit “E” was tendered by the Respondent does not extend to the land in dispute is not fatal to the Appellant’s case.

Mr. Yusuf for the Respondent contended on this issue that, based on the Benin Customary Law, prior to the enactment of the Land Use Act of 1978, all lands in Benin were owned by the Community for whom the Oba of Benin held same in trust and it is the Oba who could transfer to an individual ownership of such land and until so transferred, the occupier may continue to hold it for farming purpose. He cited the cases of Idehen V. Olaye (1991) 5 NWLR (part 191) 344 at I 347 ratio 8; Atiti Gold V. Osarenren (1970) 1 ALL NWLR 125; Aigbe V. Edokpolor (1977) 2 SCI. He submitted that the Appellant failed to lead evidence on how her predecessor in title got Exhibit A (the oba’s approval) and therefore the trial Court was right to have held that the Appellant failed to prove her case.

The learned Respondent’s counsel argued that a close look at Exhibit A, which is the Appellant’s Oba’s approval, shows that the land granted there is 80 feet by 100 feet, the beacon numbers are 1016, 1017, 1018 and 1019 and the land was described to be in the new traces in Benin City District ward 40B, Aduwawa Village Area, Benin-Ehor Road for Residential purpose. He went on to say that the evidence of the CW2 and DW3 clearly showed that the land in dispute is about 30 or 36 feet by 100feet and not 80 feet by 100 feet as in Exhibit A. Also that, the land in dispute is along Benin-Auchi Expressway, while the land in Exhibit A is along Benin-Ehor old road with beacon No. 1016, 1017, 1018 and 1019 while the beacon No. in Exhibit E which is the Respondent’s Oba’s approval is 42, 40, 39 and 41.

The learned counsel submitted that while Exhibit A was made in 1974, Exhibit E was made in 1976 and the evidence of the CW3 was to the effect that beacons number in Oba’s approval were issued progressively. He added that if that is the case, it won’t be right that the beacon No. in Exhibit A, issued in 1974 is later than the one in Exhibit E, issued in 1976. He further submitted that the trial Court was right to hold that Exhibit A did not relate to the land in dispute.

RESOLUTION OF ISSUE 1
By long line of authorities, it has been settled that ownership or title to land may be proved by any of these five methods, viz:
(a) By traditional evidence;
(b) By production of documents of title, which are duly authenticated;
(c) By acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it;
(d) By acts of long possession and enjoyment of the land; and
(e) By 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: Idundun V. Okumagba (1976) 9 -10 SC. 227; Nkado V. Obiano (1997) 5 NWLR (Pt.503) 31; Section 46 of the Evidence Act, 1990; ALHAJI FATAI ALANI MATANMI & ORS V. VICTORIA DADA & ANOR (2013) LPELR-19929(SC); SHEHU ABDULLAHI JAURO V. GONI BULAMA MODU (2021) LPELR-56158(CA).

However, it is the duty of the Plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the law is that the said Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although the Plaintiff may take advantage of the Defendant’s evidence where it supports his case. See: Onwugbufor V. Okoye (1996) 1 NWLR (Pt.424) 252; MEMUDU AJIBOYE V. ALHAJI OLOYEDE ISHOLA (2006) LPELR-301(SC).

The Appellant in her consequential amended Statement of Claim as seen at page 27 paragraph 3 of the record of appeal averred that it is the owner and in exclusive possession of all that parcel of land measuring 80 feet by 100 feet bearing ward beacon nos. 1016, 1017, 1018 and 1019 situate and lying along Benin/Auchi road, Aduwawa Quarters, Benin City. The Appellant also averred that it acquired the said piece of land vide a Deed of transfer dated 10th November, 2004 from Aduwawa community and that its predecessor in title, acquired the land measuring 80 feet by 100 feet by applying for and obtaining the Oba’s approval over the said land on 12th October, 1974. It further averred that it thereafter applied for certificate of occupancy which was duly issued to it by the Edo State Government on 14th March, 2008.

According to ADEKEYE, J.S.C. in OBINECHE & ORS V. AKUSOBI & ORS (2010) 12 NWLR PART 1208 P. 383; in order to succeed in a claim for the declaration of title to land, the Court must be satisfied as to:
a. The precise nature of the title claimed that is to say, whether it is a title by virtue of original ownership or customary law of long possession or otherwise.
b. Evidence establishing title of the nature claimed must be credible, convincing and equivocal. See also: SHEHU ABDULLAHI JAURO V. GONI BULAMA MODU (2021) LPELR-56158(CA).
The act of vesting legal title in respect of a piece of land in a person is a matter of law to be deduced from the facts and evidence admitted. See: Nasiru V. Abubakar (1997) 4 NWLR pt.497 pg. 32.

A Plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including where necessary, the family that originally owned the land. The onus is not discharged even where the scales are evenly weighed between them. Archibong V. Edak (2006) 7 NWLR pt. 980, Okoko V. Dakolo (2006) 14 NWLR pt.1000 pg.401. Dike V. Okoloedo (1999) 10 NWLR pt.623 pg. 359. Otanma V. Youdubagha (2006) 2 NWLR pg.969 pg.337, Mogaji V. Cadbury (Nig.) Ltd. & Ors (1985) 2 NWLR pt.7 pg.393. Odofin V. Ayoola (1984) 11 SC pg. 72. Owoade V. Omitola (1988) 2 NWLR pt.77 pg.413, Ndukwe V. Acha (1998) 6 NWLR pt.553 pg.25; MICHAEL EYO V. EMEKA COLLINS ONUOHA & ANOR (2011) LPELR-1873 (SC).

In the instant case, the Appellant through its transport manager PW1 testified at page 160 of the records of appeal and tendered Exhibit A, which is the Oba’s approval issued to the Appellant’s predecessor in title (Aduwawa community); he also tendered Exhibit B which is the Certificate of occupancy issued in favour of the Appellant. Under cross-examination, PW1 gave the dimension of the Appellant’s land as 80ft by 100ft and said that the land in dispute is between Benin-Auchi road and the Respondent’s house. He admitted that there were tenants in existing stores on the land before the Appellant acquired the land.

PW2 is a surveyor who testified and tendered Exhibit C which is a litigation survey plan, under cross-examination, he said that the land in dispute is divided into two by a building line and no physical structure is allowed within the building line. He added that the area within the building line belongs to the Federal Government since it is within the Federal Highway and that some portion of the Appellant’s land falls within the building line which is not supposed to be.

PW2 still under cross-examination said the portion he indicated as CP1 up to the building line is part of Benin-Auchi Expressway and from the point of CP1 to the building line is about 11 meters or 36 feet. He said that the land in dispute legally will not be 36ft by 100ft approximately and that there is only one restaurant in CP2, but he doesn’t know the owner. He added that the distance between the building line and CP3 is 135.5ft which belongs to the Respondent and that CP2 to CP3 was fenced by the Respondent and the other side by the Appellant. PW2 went on to say that the land in dispute; Osas motor and the Respondent’s land have a common boundary.

PW3 said he is an indigene of Aduwawa community and that Benin customary land acquisition before the Land Use Act starts with the Applicant’s application to the Ward Plot Allotment Committee. He said that the Appellant applied to Aduwawa plot allotment committee for a parcel of land measuring 80ft by 100ft. (See pages 166 to 167 of the records of appeal).

The Respondent at page 168 testified in person and tendered Exhibit E which is the Oba’s approval given to her late husband; 2 certified true copies of judgment against trespassers on the land admitted as Exhibits F1 and F2. Under cross-examination, she said that her house is facing the new Auchi-Benin express road and that Exhibit E covers a piece of land measuring 100ft by 100ft. She added that the dimension of the land she is claiming is 130ft by 100ft.

DW4 is the Respondent’s surveyor who prepared and tendered Exhibit G which is a litigation survey as seen at page 171 of the records of appeal. Under cross-examination, he testified as follows:
“I cannot remember the dimension stated on the title document. The dimension of the land stated in Exhibit B is 100ft by 100ft. the dimension stated on Exhibit G is 100ft by 135ft.”

I have painstakingly read the evidence of the Appellant as well as that of the Respondent and I have equally gone through the judgment of the trial Court. It is not in dispute that both parties averred to have derived their title from the Oba respectively. The law is settled that where there are competing titles, which trace their root to the same source, the one who can show a better title prevails. See: Omiyale V. Macaulay (2009) FWLR (Pt. 479) 399: Otukpo V. John (2013) ALL FWLR (Pt. 661) 1509; (2012) LPELR-25053 (SC); THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH OF CHRIST V. THE REGISTERED TRUSTEES OF GRACE CHURCH OF CHRIST (2021) LPELR-55340 (SC).

The trial Court in its judgment at page 234 of the records of appeal stated thus “it must be quickly pointed out that once the Oba of Benin has endorsed his approval to an application, there is a complete transfer of the legal estate in the land and an applicant whose application is approved by the Oba of Benin becomes the beneficial owner of the land as approved for him.”

Again at page 240 of the records the trial Court also stated thus:
It is, also my view, that the sketch plan attached to Exhibit D, the Certificate of Occupancy upon which Exhibit D was approved and issued to the Claimant is also in sharp conflict with the testimonies of CW2, DW3 and Exhibit C and D the survey plans.”

I have thoroughly and repeatedly studied the sketch plans attached to Exhibit B (Certificate of Occupancy) as seen at page 90 and Exhibit D (Deed of Transfer) at page 87 of the record of appeal; both are the same with AREA 667.611 Sq. Mts. The sketch attached to Exhibit C which is the litigation survey plan at page 94 tendered by PW2 is different. So while the sketch attached to Exhibit B matches the sketch attached to Exhibit D, the litigation survey sketch which was later in time after the creation of the Federal highway express road is not the same area with the original sketch attached to Exhibit D. From the evidence on record, what I can deduce is that the Respondent’s stores and part of her restaurant are not within her land; and also that she shares boundary with the Appellant whose land has been encroached by the Federal highway express road which was not in existence when the Aduwawa Community through the Oba granted him title to the 100feet by 80feet land which explains the difference in size between the sketch attached to Exhibits B and D on the one side; and Exhibit C (the litigation survey plan). Obvious from the totality of both the oral and documentary evidence on the record of appeal is that, because of the federal express way, the size of the Appellant’s land was reduced which did not in any way affect its title as its title abide subject to the right of the federal government express way and not subject to a trespasser.

In the record of appeal, DW4 said that the dimension of the land stated in Exhibit E which is the Respondent’s Oba’s approval issued in favour of the Respondent’s predecessor is 100ft by 100ft, while the dimension stated on Exhibit G which is the litigation survey pian he prepared in favour of the Respondent measures 100ft by 135ft. Also under Cross examination as seen at page 169 of the record, the Respondent herself testified thus:
“My house is facing the new Auchi-Benin express road. Exhibit E covers a piece of land measuring 100ft by 100ft, the dimension of land I am claiming in this Court is 130ft by 100ft.”

If the Respondent’s Oba’s approval is in respect of land measuring 100ft by 100ft, how then is the Respondent laying claim to the land in dispute measuring 130ft by 100ft or 135ft by 100ft. The only reasonable explanation is that, the Respondent has encroached into her neighbours land by 30ft or 35ft as the case may be. Meanwhile, the Appellant maintains via documentary evidence as seen at page 81 that Aduwawa community Benin/Auchi road through the building plot allotment committee Aduwawa village, Benin City District, Ward 40B, applied for building plot measuring 80 feet by 100 feet bound by beacon Nos. 1016, 1017, 1018 and 1019 to the Oba of Benin, His Highness Akenzua ii C.M.G and the same was approved. At page 83 of the record is a Deed of transfer made on 10th November, 2004 between Aduwawa Community and the Appellant in respect of the property approved by the Oba as mentioned above. Again at page 92 of the record is a statutory right of occupancy described as all that parcel of land at ward 40/B, Aduwawa Quarters, Benin City, in Ikpoba/Okha local Government area of Edo State measuring approximately 667,611 square metres. Furthermore, at pages 88 to 91 is a certificate of occupancy No. EDSR 16490, issued in favour of the Appellant and attached is a survey plan showing the portion of the land in dispute. Let me quickly observe here that the description of the property in the statutory right of occupancy is the same as that in the sketch attached to the Appellant’s Certificate of Occupancy. This means the Appellant’s land as granted has been encroached upon.

Furthermore, from the totality of the evidence of the parties and that of PW2 and DW4 who are professional surveyors, it is not in dispute that the Respondent’s property shares boundary with the disputed land and Osa’s motor from the left. It is equally clear from Exhibit C and Exhibit G that there are; a restaurant and stores on the disputed land. This is in consonant with evidence of PW1 under cross-examination, where he admitted they were tenants with stores on the disputed land before the Appellant was granted the title to the land. This firms the fact that the Respondent has stores and overflow of her restaurant on the disputed land, meaning the Respondent had been in possession of the land in dispute though without title. Let me state here that although the law recognizes prove of title through long possession, but where one knowingly builds on a parcel of land belonging to either the Federal or State Government which he has no title to; the fact that he has been enjoying possession, does not deprive the owner of the land who was granted title the right to his property.

The Respondent’s proof of title as seen at page 71 of the record of appeal is in respect of 100 feet by 100 feet with beacon Nos. 42, 40, 39, 41 approved by the Oba on 22nd December, 1976. Significantly, in Exhibits C and G (litigation survey plans), the Respondent’s restaurant and stores are outside the dimension of the Respondent’s property. This means the Respondent exceeded her boundary by building on a land not described in her title document. If she so exceeded her boundary as evidence on record, abounds that she did and it is not in dispute that her boundary neighbour is the Appellant; then it is commonsensical that the Respondent’s stores and part of her restaurant is on the Appellant’s land. The Respondent cannot legally nor reasonably argue that the land which was a communal land when it was granted the Appellant has ceased to be the Appellant’s by reason of the federal highway to her own benefit. The title of the land remains that of the Appellant subject to the right of the Federal Government to build the federal express road. Accordingly, I hold that the Appellant proved superior title to the land in dispute as against the long possession claimed by the Respondent whose evidence is that from the onset she knew she had no title to the land she built on.

Importantly, the principle of law on long possession of land as relied on by the Respondent is that a possessor has a presumptive title, that is to say, is presumed to be absolutely the owner until the contrary is shown, and is protected by the law in his possession against all who cannot show better title to the possession than he has. See: MR. OLUFEMI AYORINDE V. CHIEF AYODELE KUFORIJI (2022) LPELR-56600(SC). In other words, the Respondent in the circumstance would only be presumed to be the owner of the land in dispute had the Appellant failed to prove better title to the land.

From all I have said so far, I completely disagree with the findings and holdings of the trial Court on this issue. I hold that the Appellant successfully proved better title to the piece of land in dispute via documentary evidence and the overwhelming testimonies of PW2 and DW4 who are professional surveyors on the description and dimension of the properties in Exhibit C and Exhibit G.

Before concluding, let me remark that from the testimonies of PW2; DW4 and the holding of the trial Court in its judgment, it is crystal clear from Exhibit C and Exhibit G that part of the piece of land subject of this appeal, is on the Federal high way which cannot be sold or transferred to anybody as the same belongs to the Federal Government. This means that part of the Respondent’s stores which the trial Court relied on her long possession and control to grant her possession of the land in dispute; falls between the building line which belongs to the Federal Government and therefore are illegal structures. The law is trite that equity frowns at those who poison and contaminate its fresh flowing waters. He who comes to equity must therefore come with clean hearts, hands and conscience. See: EYITAYO OLAYINKA JEGEDE & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2021) LPELR-55481(SC); ALHAJI MOHAMMED KARAYE V. LEVI WIKE & ORS (2019) LPELR-49382 (SC). Therefore, in the case at hand, the Respondent cannot be challenging the title of the Appellant on the ground that part of the land in dispute falls within the portion in the building line which belongs to the Federal government and therefore Edo State lacks the power to allocate the same to the Appellant; while part of her stores on the land also falls within the Federal High way. I maintain the view that the Appellant who was granted Certificate of Occupancy by the Edo State Government before the Federal High Way, has a better title than the Respondent who from the word go had been a trespasser. I hold that the Appellant is entitled to hold the land granted him by the Edo State Government subject to the Federal High Way. The Respondent’s evidence of long possession and control in the circumstance of the instant case does not overweight the documentary and chain evidence of the Appellant’s title.

​Consequently, from all I have said so far, I hold that the Appellant proved his case contrary to the findings of the Trial Court, in other words, the Appellant has better title to the property in dispute than the Respondent. I resolve this issue in favour of the Appellant and against the Respondent.

SUBMISSIONS ON ISSUE 2
Whether the learned trial Judge was right when he granted a declaration of possessory right to the Defendant/Counter Claimant in respect of the land in dispute.

The learned Appellant counsel on this issue contended that DW3, Abiodun Tajudeen Muraina, who prepared Exhibit “G” (Litigation Survey) Plan for the Respondent, admitted to the fact that the piece of land measuring 100 feet by 100 feet, which in any case is not in dispute belongs to the Respondent. He went on to submit that the Respondent and the DW3’s admission of the fact that the dimension of the land belonging to the Respondent is 100 feet by 100 feet, as contained in Exhibit “E” is a clear contradiction of the dimension of the land contained in Exhibit “G”. He further submitted that by the contradiction in Exhibit “E” and Exhibit “G”, the trial Court erred in law by granting title of the Land in dispute to the Respondent.

The learned counsel submitted that proof of ownership is prima facie proof of possession, the presumption being that the person having title to the land is in possession. He urged the Court to allow the appeal.

The learned counsel for the Respondent in response to the argument canvased in the Appellant’s brief of argument under this issue submitted that, a person in exclusive possession of a piece of land can maintain an action in trespass against any person unless the true owner. That he can even maintain an action in trespass without a valid title or with defective title against a trespasser as long as he is in possession. He cited the case of Udo V. Obot (1989) 1 NWLR (Pt. 95)59.

The learned counsel contended that a Claimant who based his Claim on possession is not supposed to prove title to the land; that it is only when the Claimant Claims title to the land that he would prove his title. He added that it is a misconception of the law for the Appellant to challenge the judgment of the lower Court on the basis of title, because from the relief granted by the trial Court he did not decree title on the Respondent but possession.

Mr. Yusuf submitted that the Respondent successfully established her Counter-Claim and the trial Court was perfectly in order in granting possessory right to the Respondent in view of the evidence in support of the Counter-Claim which the trial Court held to have preponderated in favour of the Respondent. He urged the Court to dismiss the appeal and uphold the decision of the trial Court.

RESOLUTION OF ISSUE 2
The law is trite that a Counter-Claimant, just like the Plaintiff in the main action, has a duty to prove his counter-claim if he hoped to obtain judgment. See: Jeric Nigeria Ltd V. Union Bank of Nigeria Plc. (2001) 7 WRN 1, 18; Prime Merchant Bank V. Man-Mountain Company (2000) 6 WRN 130, 134; Walter V. Skyll Nig. Ltd (2000) 13 WRN 60, 98. In effect, the burden of proving a Counter Claim is on the counter claimant as he is the party who would fail if no evidence is adduced to establish it. See: N.B.N. Ltd V. U.C. Holding Ltd(2004) 13 NWLR (Pt. 891) 436, 454; Umeojiako V. Ezeanamuo (1990) 1 NWLR (Pt. 126) 253, 267; MICHAEL SUNDAY OROJA & ORS V. EBENEZER ILO ADENIYI & ORS (2017) LPELR-41985(SC).

Ordinarily, and without controversy, in a claim for declaration of title as in the case at hand, if a Defendant does not file a counter-claim, the burden is heavier on the Plaintiff as Claimant to prove his title to the land in dispute. In that circumstance, a Defendant has no duty at all to prove his title to the same land in dispute. See: Adekanmbi V. Jangbon (2007) All FWLR (Pt. 383) 152 at 160 (2007) 24 WRN 45 at 57; Elias V. Disu (1962) All NLR (Pt. 1) 214 at 220 (1962) 1 SCNLR 361; GODWIN C. ONOVO & ORS V. FERDINAND MBA & ORS (2014) LPELR- 23035(SC).

However, having held in issue 1 above that the Appellant has good and better title to the land in dispute, it follows that the issue of whether the trial Court was right in granting the Respondent’s counter-claim is of no moment. This is because by the grant of title to the Appellant, the Respondent’s counter-claim automatically fails.

I view that the instant issue which anchors on proof and grant of the Respondent’s counter-claim has become academic and of no value, having held that the Appellant proved its case. An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case at hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not inure any right or benefit on the successful party. See: ARDO V. INEC & ORS (2017) LPELR-41919 (SC); ADALMA TANKERS BUNKERING SERVICES LIMITED & ANOR V. CENTRAL BANK OF NIGERIA & ORS (2022) LPELR-57036(SC); DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR-55887(SC); DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR- 55887 (SC); DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR-55887(SC); UMAR MOHAMMED NASKO & ANOR V. ABUBAKAR BELLO & ORS (2020) LPELR-52530 (SC).

In all, having resolved issue 1 in favour of the Appellant, I hold that the appeal is meritorious and the same is hereby allowed. I set aside in its entirety, the decision of the High Court of Justice, Edo State, Benin Division delivered by E.O. Ahamioje J. on 1st June, 2016, in Suit No. B/723/2010.
I make no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had a preview of the judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. I adopt the reasoning and conclusion reached therein by his Lordship allowing the appeal. I have nothing useful to add.
I abide by the consequential orders made in the judgment.

ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft the judgment delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am convinced with his reasoning and conclusion as shown in the decision.
Consequently, I do agree with the above conclusion and adopt them as mine. I hold that the appeal is meritorious and is accordingly allowed. The judgment of the lower Court delivered on 1st June, 2016 in Suit No. B/723/2010 is hereby set aside.
There shall be no order as to cost.

Appearances:

H.O. Omoregie, Esq., with him, P.N. Uzzi, Esq. and I. Iduozee-Pullen, Esq. For Appellant(s)

A. O. Yusuf, Esq. For Respondent(s)