CHARLES ISIENYI v. OKEREKE CHUKWU (2019)

CHARLES ISIENYI v. OKEREKE CHUKWU

(2019)LCN/13496(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of June, 2019

CA/E/162/2017

RATIO

LAND LAW: DECLARATION OF TITLE TO LAND: THE DUTY OF THE PLAINTIFF IN THIS INSTANCE

The law is settled that in a claim for declaration of title to land, the onus is on the plaintiff to prove his title to the land in dispute by adducing sufficient, cogent and credible evidence. See ADELEKE V. IYANDA & ORS. (2001) LPELR-114 (SC) AT 25-26 (E). SPECOMILL STAFF CO-OPERATIVE THRIFT & SOCIETY LTD. V. OGUNTOYINBO & ORS. (2017) LPELR-43416 (CA) AT 40-43 (C-F).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND: WHERE A DEFENDANT COUNTER CLAIMS FOR A DECLARATION OF TITTLE TO LAND

Where a defendant counter claims for a declaration of title to the same land as in the instant case, he has the same onus as the plaintiff in the main case. This is because a counter claim is for all intent and purposes an independent action. See OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985 (SC) AT 11-13 (E-B), NWAENANG V. NDARAKE & ORS. (2013) LPELR-20720 (CA) AT 41-44 (A-D).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHERE A CASE IS HEARD ON THE BASIS OF PLEADINGS WHAT WILL THE COURT CONSIDER?

In a case heard on the basis of pleadings, the Court will consider the entire pleadings of both parties to discover the case being canvassed by each party. Both parties and the Court are bound by the pleadings. See U.B.N V. AYODARE & SONS (NIG) LTD & ANOR. (2007) LPELR-3391 (SC) AT 25 (D-G).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

LAND LAW:ON THE ADMISSIBILITY OF UNREGISTERED LAND: SECTIONS 2 AND 15 OF THE LAND INSTRUMENT REGISTRATION LAW OF KWARA STATE
In ATANDA V. COMM. FOR LANDS AND HOUSING, KWARA STATE & ANOR. (2017) LPELR-42346 (SC) AT 22-23 (A-B), the Supreme Court considered the provisions of Sections 2 and 15 of the Land Instrument Registration Law of Kwara State which are the same as Sections 2 and 22 of Land Instruments (Preparation and Registration) Law of Enugu State. The Court per Sanusi JSC, re emphasized the position of the law on the admissibility of unregistered land instrument as follows:
“Under Section 15 of the Land Instrument Registration Law of Kwara State, an unregistered document affecting land must not be pleaded and is not admissible. Even in a situation where it was pleaded, the trial Court is duty bound to strike out the paragraph(s) where it was pleaded and also where it was mistakenly admitted in evidence, the trial Court must expunge it since it has no any value evidentially. See Ossai v. Nwajide (1975) 4 SC 2007. In the instant case, there is no doubt that considering the purpose Exhibit A was tendered and relied upon, it satisfies the meaning of an instrument, contrary to the view held by the appellant’s learned counsel.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

LAND LAW:UNREGISTERED INSTRUMENTS: WHAT HAPPENS WHEN AN INSTRUMENT THAT IS SUPPOSED TO BE REGISTERED IS NOT REGISTERED

It is trite and in fact well established and settled law, that instrument that are registrable but were not so registered, are still admissible in evidence IF ONLY it was meant to serve the purpose of evidencing payment of purchase price or fees but certainly not for the purpose of creating or establishing title to a land. A registrable instrument which has not been registered is also admissible ONLY to establish or prove equitable interest or to prove payment of purchase of money. See Savage v. Sorrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 22; Okoye v. Dumez Nig Ltd & Ors (1985) NWLR (Pt. 4).
See also STARLINE (NIG.) LTD & ANOR V. ONYEAGOCHA & ANOR (2018) LPELR-44268 (CA) AT 52-54 (C-A), ORIANZI V. ATT GEN. RIVER STATE & ORS. (2017) LPELR-41737 (SC).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

LAND LAW: WHERE BOTH PARTIES IN A CLAIM FOR DECLARATION OF TITLE TO LAND CLAIM A COMMON PREDECSOR OR ORIGINAL OWNER OF LAND

PRIORITY IN LAW: WHAT DETERMINES IT

Priority in law is basically determined by the principle Our prior est temporam, poteor est jure.? Where the equities are equal, the first in time ought to prevail: see the case of AJAYI V. OSUNUKU & ORS LPELR 8332. In conclusion, therefore the Court holds that the plaintiff is entitled to judgment on the solid ground that his own equitable interest was created first in time before that of the defendant.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE PRIMARY DUTIES OF THE TRIAL COURT AS REGARDS EVIDENCE
The law is trite that evaluation of evidence and ascription of probative thereto are the primary duties of the trial Court. However, where the evaluation relates to documentary evidence, the appellate Court is in the same position as the trial Court to examine and evaluate the documents. See DAVIES V. N.D.I.C & ORS (2014) LPELR-23768 (CA) AT 32-35 (D-E) TUKUR V. UBA & ORS (2012) LPELR-9337 (SC) AT 42-43 (D-B), MAFIMISEBI & ANOR V. EHUWA & ORS (2007) LPELR-1812 (SC) AT 57-58 (F-B).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE PREVAILS OVER ORAL EVIDENCE
The law is settled that where there are oral and documentary evidence before the Court, documentary evidence should be used as the hanger to access the oral evidence.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JUSTICES

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

CHARLES ISIENYI Appellant(s)

AND

OKEREKE CHUKWU
(suing by Att: Geoffrey Nnamani) Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State delivered in suit no. E/1038/2008 on 16/5/2016. The respondent herein commenced the suit by a writ of summons and statement of claim wherein he claimed:
a. A declaration that the plaintiff is the exclusive holder of the statutory right of occupancy over and in respect of all that piece or parcel of land situate at No. 286 Community Estate Layout, Nike-Enugu.
b. N12,000,000:00 as damages for trespass, and
c. Perpetual injunction restraining the defendant, his agents, servants, workers and privies from continuing acts of trespass into the said land in dispute.”

The appellant filed his statement of defence and counter claimed against the respondent as follows:
?a. ?A declaration that the defendant is entitled to the statutory right over the piece/parcel of land known as plot 286 Community Estate Layout Extension, Trans-Ekulu in Enugu State and which land is bounded by beacon Nos. CM12847, CM12848, CM12849 and CM1250, and measuring approximately an area of

615.880 square meters as shown on defendant?s survey plan.
b. Perpetual injunction restraining the plaintiff, his agents, servants, privies or however so called from trespassing into, interfering or meddling with the defendant?s ownership and possessory right over the said piece/parcel of land.?

The case of the respondent is that he acquired the land in dispute, identified by both parties as plot 286 Community Estate Layout Extension, Trans Ekulu in Enugu by virtue of Land Lease Receipts dated 5/1/77 and 7/1/77 and a deed of lease was executed in his favour by the Umuenweneji Iji Nike community, the Original owners of the land.
?
The appellant?s case is that he purchased the land in dispute in 1990 from Elder Anike Ngwu owelle, an indigene of the Umuenweneji Iji Nike community to whom the land was allocated by the community. A receipt was issued to him by the said Elder Anike Ngwu Owelle and a Deed of Lease was also executed in his favour by the Attorneys of the community. It is his case that he took possession of the land and erected a wall fence round it. He was about to install a gate when the respondent?s

Attorney, Geoffery Nnamani trespassed on the land.

The respondent?s attorney testified in support of his case. The appellant testified and called two other witnesses in support of his case. Both parties tendered several documents in support of their case. The Court after considering the entire evidence led by both parties granted the respondent?s claim and dismissed the appellant?s counter claim with costs.

The appellant was dissatisfied with the judgment. He filed a notice of appeal on 2/6/2017. On 31/8/2017 the appellant filed an amended notice of appeal which was deemed properly filed and served on 18/4/2018. The six grounds of appeal in the amended notice of appeal shorn of their particulars are:
GROUND ONE
?The learned trial judge erred in law when he held that the case before him was one of competing equitable interests between the plaintiff and the defendant, and that the plaintiff/appellant?s equitable interest ranks in priority to that of the defendant/appellant over the land and proceeded on that basis, to enter judgment for the plaintiff/respondent.
GROUND TWO
The learned trial judge erred

in law in ascribing probative value and relying on Exhibits P1 and P2 tendered by the plaintiff in coming to a determination of the matter when from all the surrounding circumstances and evidence before the Court, the two exhibits are dubious and questionable documents; and this led to a miscarriage of justice.
GROUND THREE
The learned trial judge erred in law when in the judgment he continued to treat the plaintiff/respondent?s case as one who is making a case of being in undisturbed possession of the land in dispute prior to the defendant/appellant?s alleged trespass on it, when in fact the plaintiff/respondent abandoned such a case by not leading any evidence whatsoever of being in possession of the land in dispute.
GROUND FOUR
The learned trial judge erred in law when in his judgment, he rejected Exhibit D10, which is a report of the decision on the customary arbitration of the dispute by DW3, the traditional ruler of Iji Nike, the community that originally owned the land in dispute; and this led to a miscarriage of justice.
GROUND FIVE
The learned trial judge erred in law when he denied the defendant/appellant the

benefit of a piece of evidence that was elicited from PW1 under cross-examination which supports the defendant/appellant?s case.
GROUND SIX
The learned trial judge erred in law in dismissing the defendant/appellant?s counter-claim when the defendant/appellant led far superior and credible evidence in proof of his counter-claim.”

Appellant?s brief of argument was settled by Chief P.M.B. Onyia. It was filed on 31/8/2018 and deemed as properly filed and served on 18/4/2018. The respondent?s brief of argument was filed on 17/5/2018. It was settled by Ndubuisi Okwesili. Appellant?s reply brief was filed on 15/1/2019. Counsel to both parties adopted their respective briefs as their arguments in this appeal on 16/4/2019.

The appellant?s counsel formulated the following issues for determination:
1. ?Whether the learned trial judge was right when he held that the matter before him was one of competing equitable interests and that the plaintiff/respondent has no equitable interest over the land which is earlier in time than that of the defendant/appellant, and as such entitles him

(plaintiff/respondent) to judgment.
2. Whether the trial Court was right when he ascribed much probative value to, and relied heavily on, Exhibits P1 and P2 tendered by the plaintiff, when from all the surrounding circumstances and the evidence before the Court, the documents are dubious and questionable and of no probative value.
3. Whether the trial judge was right when in the judgment he continued to treat the plaintiff/respondent as one who made a case of being in undisturbed possession of the land in dispute prior to the defendant/appellant?s alleged trespass on it, when in facts, the plaintiff/respondent abandoned such a case by not leading evidence whatsoever of being in possession of the land in dispute.
4. Whether the trial Court?s rejection of Exhibit D10, a report of the decision on the customary arbitration of the dispute by the traditional ruler of the community that originally owned the land in dispute (DW3), is justifiable.
5. Whether the trial Court was right when he denied the defendant/appellant the benefit of a piece of favourable evidence elicited from PW1 under cross-examination which supports the

defendant/appellant?s case.
6. Whether the trial Court was right when he dismissed the defendant/appellant?s counter-claim, when indeed, the defendant led superior and credible evidence in proof of his counter-claim.?

The respondent?s counsel adopted all the issues formulated by the appellant?s counsel.

I have considered the issues formulated for determination by counsel along with the grounds of appeal. I am of the view that all the six issues can be condensed into one. That is whether on the entire pleadings and the evidence led, the learned trial judge was right in granting the respondent?s claim and dismissing the appellant?s counter claim.
?
The appellant?s counsel submitted that the case made by the respondent even if believed would not amount to a case of equitable interest as held by the learned trial judge because equitable interest in land can only be created by payment of purchase price and entry into possession and the respondent did not lead any evidence of being in possession of the land in dispute though he half heartedly pleaded possession in paragraph 9 of the statement of

claim. He referred to OGUNBAMBI V. ABOWABA (1951) 3 WACA 222. OWOSHO V. DADA (1984) 7 SC 149 AT 173. KACHALLA V. BANKI (2006) 2-3 SC AT 55. Counsel further submitted that the appellant satisfied the twin requirements of equitable interest by pleading and leading evidence of payment of purchase price and specific acts of possession exercised by him on the land including surveying of the land and erection of wall fence. He contended that the learned trial judge was wrong when he held that it was a case of competing interests over the land and that the respondent?s equitable interest being earlier in time would prevail over that of the appellant when the respondent did not establish an equitable interest over the land. It is also the contention of the appellant?s counsel that Exhibits P2 and P3 are ex-facie dubious, questionable and unworthy of being ascribed any probative value because the layout or at least the name Community Layout Extension stated on the exhibit was not in existence as at 1977 when the receipts were purportedly issued which easily shows that the receipts were forged and backdated. He urged the Court to

invoke the provisions of Section 167 (d) of the Evidence Act, 2011 against the respondent for failure to tender the public notice inviting members of the public that had bought plots of land in the layout to come and regularize or update their records which notice was pleaded in paragraph 7 of the statements of claim. He referred to AREMU V. ADETORO (2007) 7 SC (PT.11) AT 16. It is submitted that the learned trial judge failed to ascertain the authenticity and genuineness of the Exhibits P2 and P3 as required by law but he relied on them heavily to uphold the respondent?s claim. He referred to DABO V. ABDULLAHI (2005) 7 NWLR (PT.923) 181.

On Exhibit D10, which is the Igwe?s decision on the land in dispute, counsel submitted that the decision of the customary arbitration by a traditional ruler of a community that originally owned the land in dispute should not to have been trivialized since there was no allegation of fraud or contest as to the capacity in which the traditional ruler (DW3) acted. He further submitted that the rejection of Exhibit D10 on the ground of Lis pendens is wrong because the doctrine applies where the property, the

subject matter of litigation is sold during the pendency of a motion or suit. He referred to DOMA V. OGIRI (1997) 1 NWLR (PT.481) 322. ARARUME V. INEC (2007) 9 NWLR (PT.1038) 161-162. BAMIGBOYE V. OLUSOGA (1996) NWLR (PT.444) 502. Counsel finally submitted that the quality of the evidence led by the appellant in his defence and in support of his defence and counter claim outweighs that of the respondent as the respondent merely averred in his statement of claim that he is the beneficial owner of the land in dispute by virtue of the land lease receipts made in 1977 without calling out the numerous persons who executed the document even when PW1 was challenged under cross-examination as to the existence of the respondent. He referred to AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT.1253) 458 AT 500.

In response to the submissions of the appellant?s counsel, the respondent?s counsel submitted that the original owners of the land in dispute first sold to the respondent as per Exhibits P2 and P3 before they sold the same land to the appellant via Exhibit D1 and where equities are equal, the first in time prevail. He referred to AJAYI V. OSUNUKU (2008)

LPELR-8332. GBADAMOSI V. AKINLOYE (2014) ALL FWLR (PT.717) 677 AT 701 (D-E). FOLASHADE V. DUROSHOLA (1961) 1 SCNLR 150. Counsel further submitted that the allegation that Exhibits P2 and P3 were forged, dubious and questionable are criminal allegations which were neither pleaded with particulars nor supported by evidence. He referred to Section 135 (1) of the Evidence Act, 2011. It is submitted that the submission that the community layout was created in 1992 is speculative as it was neither pleaded not evidence led to show that the layout was created in 1992.

On Exhibit D10 counsel submitted that what is contained in that document does not qualify as customary arbitration as it is clear from the averments in paragraphs 21 and 33 of the statement of defence that the respondent never submitted himself voluntarily for arbitration on the land in dispute. On the conditions for valid and binding arbitration, he referred to ODONIGI V. OYELEKE (2001) 84 LRCN 658 AT 662. He further submitted that the learned trial judge rightly rejected Exhibit D10 because it was made when proceeding is pending and to the knowledge of DW3 who is an interested party. He referred

to IBRAHIM V. HASHIDU (1999) 4 NWLR (PT.600) 638 AT 645. CONSOLIDATED BREWERIES PLC V. AISOWIEREN (2001) 15 NWLR (PT.736) 424 AT 453-454.

On the appellant?s counter claim, counsel submitted that the evidence of the appellant that he purchased the land in dispute from Elder Anike Ngwu Owelle and his evidence that the community executed Exhibit D1 in his favour are major and material inconsistent testimonies as to how he acquired the land and it is fatal to his claim. He also submitted that oral evidence cannot be given to contradict exhibit D1. He referred to ADEKA V. BABSON (1987) 1 NWLR (PT. 48) 134. SECTION 128 (1) OF THE EVDIENCE ACT. He further submitted that since the community sold the land to the respondent, they had divested themselves of their interest in the land, they had nothing to allocate to Elder Anike Ngwu Owelle or to sell to the appellant. He referred to GBADAMOSI V. AKINLOYE (SUPRA) AT 700. He finally submitted that the appellant failed to prove his counter claim and the trial Court was right in dismissing it.
?
In his reply to the above submissions of the respondent?s counsel, the appellant?s counsel emphasized

his earlier submission that in law, payment of purchase price alone cannot sustain a claim of equitable interest. He submitted that it is not the law that failure to plead particulars of fraud automatically authenticates a document that is ex facie not genuine. He conceded that allegations of crime in civil proceedings must be proved beyond reasonable doubt. He however contends that it is not all allegations of fraud that amount to imputation of crime. He referred to OKOLI V. MORECAB F.N (NIG) LTD. (2007) LPELR-2463 (SC). He urged the Court to allow the appeal.

RESOLUTION:
The law is settled that in a claim for declaration of title to land, the onus is on the plaintiff to prove his title to the land in dispute by adducing sufficient, cogent and credible evidence. See ADELEKE V. IYANDA & ORS. (2001) LPELR-114 (SC) AT 25-26 (E). SPECOMILL STAFF CO-OPERATIVE THRIFT & SOCIETY LTD. V. OGUNTOYINBO & ORS. (2017) LPELR-43416 (CA) AT 40-43 (C-F).

and purposes an independent action. See OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985 (SC) AT 11-13 (E-B), NWAENANG V. NDARAKE & ORS. (2013) LPELR-20720 (CA) AT 41-44 (A-D).

In the instant case, the case of the respondent in the statement of claim is that he purchased the land in dispute from Umuenwene Iji Nike community (the community) the original owner of the land in 1977. The appellant?s case as is that the community does not sell land directly to purchasers. Rather, each plot of land is allocated to every adult male in the community in order to empower them. The plot of land sold to the respondent was allocated to Elder Anike Ugwu Owelle and he was the one that sold the land to the appellant in 1995. Thus the respondent based on the pleadings had the onus to prove that the community that owned the land sold it to him in 1977 while the

respondent had the onus to prove that the community according to its practice allocated the land to Elder Anike and he sold it to him and the sale was ratified by the community. The respondent tendered two receipts issued in 1977 and a deed of lease executed in 1995. All the documents were issued and executed by the community. The appellant also tendered a deed of lease executed by the community. The learned trial judge considered the documents of both parties and held that:
?In the instant case, the applicable method is by the production of documents of the title duly authenticated and executed. But the documents tendered by both the plaintiff and the defendant do not confer title to the land per se as none of them is registered. Instead, they have been tendered as evidence of transaction over the plot of land in dispute.
Apart from attaching more probative value to documents tendered in their original forms which are primary evidence of their contents, both parties in this suit have by the documents being relied upon traced their root of title to Umu Enwere Iji Nike Community. Learned counsel for the defendant has referred to the answer given

by the plaintiff that the communal land of the people of Umu Enwere Iji Nike Community is allocated to male adults who have the right to assign such land with the approval of the community. But the law is that where parties rely on documentary evidence to prove their interest in land, the documents speak for themselves and therefore oral evidence cannot be adduced to vary the contents of the document except in a specific situation whereby a party calls oral evidence to relate the oral evidence to the document. See the case of OSAYOGIE V. EDEOKPAYI (2014) LPELR-2261 and ALAO V. AKANO (2005) 11 NWLR (Part 935) 160.
?The defendants? case in the instant suit is that he purchased the land in dispute from the DW2 in 1990 with the approval of Umuenwene Iji Nike community. But there is nowhere in the pleading where it has been averred that communal land Unuenwene Iji Nike Community is shared among the adult male members before it is assigned or transferred to a third party. Neither is it in the pleadings that Umuenwene Iji Nike community does not transfer its land directly to prospective purchaser by the community. However, the evidence before the

Court is that the plot of land in dispute was leased out twice by the community to both parties in this suit.?

The learned trial judge was right when he held that the documents tendered by both parties speak for themselves and that oral evidence cannot be adduced to vary the contents of the documents. The position of the learned trial judge is reinforced by the provisions of Section 128 of the Evidence Act.

The Court having held that the documents tendered by both parties show that the land was leased to both parties by the community further held that:
?The issue of the burden of proof has been copiously addressed in the written addresses of both counsel. While the plaintiff has the evidential burden to prove his title to the land in dispute as averred in his statement of claim, the defendant also has the same burden to prove his title to the same land as averred in the statement of defence and counter claim. In consequence therefore, the only issue for determination in this judgment is which of the parties in this suit is entitled to the judgment of this Court based on the principle of equitable priority as the documents being

relied upon are not registered. They have been tendered as evidence of transaction which confers equitable interest only as distinct to legal title. On priority of interest in land, the Supreme Court has held in the case of EJUETAMI V. OLAIYA & ANOR.(2001) LPELR-107 that it is the general rule in equity that competing interest that the person whose equity is attached to the property first will be entitled to priority over the other. The fundamental rule is that competing interest in land will generally rank according to the other of their creation. In the case of OGUNAMEH V. ADEBAYO (2007) LPELR-8722, the Court of Appeal held as follows:
?Where a person pays for land and obtains a receipt Followed by going into possession equitable interest is created for him in the land. See also the case of Kachalla v. Banki (2006)8 NWLR (PART 982) 364.?

The learned trial judge rightly stated the cardinal principles upon which the determination of the dispute between the parties turned. The first is that the documents pleaded and tendered by both parties are not documents of title as none of them is registered as required by law.

Section 2 of Land Instruments (Preparation and Registration) Law, Cap 100 Volume IV, Laws of Enugu states that:
?instrument means a document affecting land in Enugu State whereby one party (hereinafter called the Grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the Grantee) or purporting to do so, any right purchase and power of attorney under which any instrument may be executed but does not include a “Will.”
Sections 11, 12 and 22 of the Law provides that:
11. ?Subject to the provisions of this Law, every instrument executed before the commencement of this law shall be registered.
12. Subject to the provisions of this law, every instrument executed before the commencement of this law, and not already registered, shall be registered.
22. No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered:
Provided that a memorandum given in respect of an equitable mortgage affecting land in Enugu State executed before the 1st day of July, 1994, and not registered under this law may be pleaded and shall not be

inadmissible in evidence by reason only of not being so registered.?
?In ATANDA V. COMM. FOR LANDS AND HOUSING, KWARA STATE & ANOR. (2017) LPELR-42346 (SC) AT 22-23 (A-B), the Supreme Court considered the provisions of Sections 2 and 15 of the Land Instrument Registration Law of Kwara State which are the same as Sections 2 and 22 of Land Instruments (Preparation and Registration) Law of Enugu State. The Court per Sanusi JSC, re emphasized the position of the law on the admissibility of unregistered land instrument as follows:
“Under Section 15 of the Land Instrument Registration Law of Kwara State, an unregistered document affecting land must not be pleaded and is not admissible. Even in a situation where it was pleaded, the trial Court is duty bound to strike out the paragraph(s) where it was pleaded and also where it was mistakenly admitted in evidence, the trial Court must expunge it since it has no any value evidentially. See Ossai v. Nwajide (1975) 4 SC 2007. In the instant case, there is no doubt that considering the purpose Exhibit A was tendered and relied upon, it satisfies the meaning of an instrument, contrary to the view held by

the appellant’s learned counsel. Therefore in order to have any evidential value, it ought to have been registered by the appellant. Failing to be so registered under the relevant law, it is automatically rendered inadmissible for the purpose it was meant by the plaintiff/appellant as stated above. It is trite and in fact well established and settled law, that instrument that are registrable but were not so registered, are still admissible in evidence IF ONLY it was meant to serve the purpose of evidencing payment of purchase price or fees but certainly not for the purpose of creating or establishing title to a land. A registrable instrument which has not been registered is also admissible ONLY to establish or prove equitable interest or to prove payment of purchase of money. See Savage v. Sorrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 22; Okoye v. Dumez Nig Ltd & Ors (1985) NWLR (Pt. 4).?
See also STARLINE (NIG.) LTD & ANOR V. ONYEAGOCHA & ANOR (2018) LPELR-44268 (CA) AT 52-54 (C-A), ORIANZI V. ATT GEN. RIVER STATE & ORS. (2017) LPELR-41737 (SC). In the instant case, it is clear from the pleadings and the evidence

led that both parties pleaded the receipts and deeds of lease executed by the community not as instruments conferring title to land but as evidence of payment of money to the community.

The second principle is that where both parties in a claim for title to land trace their title to a common predecessor or original owner of the land, the first in time takes priority. See OWIE V. IGHIWI (2005) LPELR-2846(SC) AT 14-15 (F-A).
The learned trial judge considered and evaluated the evidence of both parties as follows at pages 171-172:
?In the instant case, the plaintiff has tendered Exhibit P1 which is receipt for payment of N6,000.00 as full payment for plot 286 at Community Estate Layout Extension Phase 1 Nike Land Enugu. This document is dated 15th January, 1977. He has also tendered Exhibit P3 which is a receipt for the payment of N3,000.00 for the land lease in respect of plot 286 Community Estate Layout Extension Phase 1. This exhibit has the title of Community Estate Layout Extension Umuenwene Iji Nike Enugu and it is dated 7th day of January, 1977. On 11th March, 1995, a formal deed of leased between the plaintiff and the community was prepared

by DW3 when he was in full time Legal Practice. The plot of land has been adequately shown and described in survey plan No. MU/479/92 which is marked Exhibit P5.
On the other hand, the defendant?s receipt for payment of land lease of the sum of N1,000.00 (One Thousand Naira) for the plot No. 286 at former Ngwu Agbo Layout has been admitted and marked exhibit D9. It is dated 27th March, 1995. He entered into a Lease of Agreement with Umuenwene Iji Nike community on 21st February, 1995. The document is marked Exhibit D1. On 27/3/1995 the defendant paid N4,210.00 to the community as development fee as shown in Exhibit D3. By exhibit D5, the defendant paid the sum of N500.00 (Five Hundred Naira) as annual ground rent for the plot No. 286 Estate Layout Phase II for the period of 1990-1995.?

Based on the above the learned trial judge came to the following conclusion at page 172 of the record of appeal:
?From the totality of the evidence before this Court the plaintiff?s interest in the land in dispute which was created on 5th January, 1977 is the first in time in order of creation followed by that of the defendant in 1990.

Priority in law is basically determined by the principle ?Our prior est temporam, poteor est jure.? Where the equities are equal, the first in time ought to prevail: see the case of AJAYI V. OSUNUKU & ORS LPELR 8332. In conclusion, therefore the Court holds that the plaintiff is entitled to judgment on the solid ground that his own equitable interest was created first in time before that of the defendant.?

The grouse of the appellant is that the payment of the purchase price by the respondent was not coupled with possession, therefore, his equity cannot take priority over that of the appellant who took possession of the land immediately after purchase. The position of the appellant?s counsel is supported by a legion of cases. See FOLARIN V. DUROJAIYE (1988) LPELR-1286 (SC) AT 16-18 (G-B) where the Supreme Court per Obaseki JSC held that:
?To acquire an interest in land under customary law by purchase, there must be a valid sale payment of money in the presence of witness and delivery of possession of the land to the purchaser in the presence of witnesses. See Cole v. Folami FSC 66.
In order to transfer legal

title under English Law by purchase, there must be a valid sale payment of money accompanied by acknowledgment of receipt and execution of a deed of conveyance in favour of the purchaser. See Erinoso v. Owokoniran (supra) by Idigbe, JSC. when he, delivering the judgment of the Supreme Court said, at p. 483: “Was it a sale under native law and custom or under English law in order to transfer an absolute title under native law and custom, it is necessary that such a sale should be concluded in the presence of witnesses “who saw the actual handing over” of the property from Fafunwa branch of the family to Oladiran (see Cole v. Folami 1 FSC 66). In order to transfer the legal title under “English Law” a deed of conveyance in respect of the same should be executed in favour of Oladiran by Fafunwa branch of the Ojomo Eyisha family; if the sale under “English Law” was imperfect then, on the evidence that Oladiran bought the land and went into possession, she acquired merely an equitable interest in the land.”
Where land is sold under English law or statute law, money is paid and receipts are issued, the purchaser can only acquire an equitable interest if he goes

into possession. See Ogunbambi v. Abowaba (1951) 13 WACA 222.” In Orasanmi v. Idowu (1959) 4 FSC 40, Ademola, CJF. on the issue of equitable interest on land and its acquisition said: “Appellants’ counsel relied on Ogunbambi v. Abowaba 13 WACA 222 for the first part of his argument that proof of money paid coupled with possession was enough to show that the Defendant had a better title. Now, to rely on Ogunbambi v. Abowaba 13 WACA 222 there must be in addition to the payment an undisturbed and continuous possession for many years by the claimant or by his predecessor in title under whom he claims. In other words, it is not enough that the Appellant should go into possession after the sale to him, but it is important for him to establish that he remained in possession. The learned trial judge found that though the Appellant went into possession after the sale to him, his possession was not continuous.”
See also ADESANYA V. OTUEWU & ORS (1993) LPELR-146 (SC) AT 33 (E-F), OBIJURU V. OZIMS (1985) LPELR-2173 (SC) AT 21-22 (D-A). OKOYE V. DUMEZ (NIG.) LTD & ANOR (1985) LPELR-2506 (SC) AT 14 (A-B). AGBOOLA V. UBA PLC & ORS (2011) LPELR-9353 (SC) AT

42-43 (F-B), GOLDMARK (NIG) LTD & ORS V. IBAFON CO. LTD & ORS (2012) LPELR – 9349 (SC) AT 61 (C-E). The respondent?s counsel relied on GBADAMOSI V. AKINLOYE (2014) ALL FWLR (PT. 717) 677 AT 701 (D-E), (2013) LPELR – 20937 (SC) AT 32 (E-F) where Rhodes-Vivour, JSC stated that:
“The well laid down position of the law is that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this is as good as a legal estate. The equitable interest so acquired can only be destroyed by a purchaser for value who had no notice of the existing equity.”
The respondent?s counsel obviously read the pronouncement of his Lordship in isolation without considering the facts and circumstances that led to that pronouncement. The real gist of that case was clearly stated by ONNOGHEN JSC AT PAGES 29-31 (F-C):
“It is settled law that you cannot give what you do not have, otherwise known as the doctrine of “Nemo dat quod non habet” The question is simply whether the respondents who had sold their title to the portion of land in dispute to the appellants which title was compulsorily

acquired by the Lagos State Government from the appellants and which acquisition has been declared by a Court of law to be null and void legally speaking be entitled to a repossession of the title already sold to appellants from the third party; Lagos State Government; without the authority and/or consent of the new owner of that title. The lower Courts held that the respondents are entitled to the title. However, common sense says that you cannot eat your cake and still have it back. That is the simple answer to a very simple case as revealed by the record of appeal. Without making magic or abracadabra, can you eat your cake and still have it back. Fortunately, this is a Court of law which has absolutely nothing to do with magic or abracadabra neither does the Court allow itself to be used as an engine for the perpetration of fraud, in whatever guise. In the case of Ilona v. Idakwo (2003) 11 NWLR (pt. 830) 53 at 89 and 91-92, this Court held, inter alia, as follows: ?Where there is a subsisting right of occupancy, it is good against any other rights. The grant of another right of occupancy over the same piece of land will therefore be invalid… Where a

party has fully divested himself of all interest in land, no right vests in him to deal with the same property by way of further alienation anymore. It is a matter of nemo dat quod non habet: i.e. he cannot give that which he no longer has.”
It is very unfortunate that the respondents claimed title to the whole of their family land compulsorily acquired by the Lagos State Government including the portion earlier sold to the father of the appellants and in which they were in effective possession. The claim so made without disclosing the truth and excluding the said portion so sold is clearly made in bad faith and smacks of insincerity. To put it mildly, it is very unconscionable and consequently against the principles of equity and good conscience. It is worst when the respondents, after obtaining judgment and entering into a settlement agreement which expressly excludes the land of appellants to still insist and hold on to that land when they know that they had much earlier divested themselves of the title to the said portion.
It is on the above facts that His Lordship Rhodes Vivour, JSC stated at 32-33 (C-B) that:

?The appellants pleaded sufficient facts not denied, to show beyond doubt that they are the heirs of Late Gbadamosi Bamidele Eletu who purchased 254.558 hectares of the land situate and known as Osapa village in Eti-Osa Local Government Area of Lagos State from the family of the respondents sometime in 1977. These facts show that the appellants have an equitable interest in the land by operation of Law. Both Courts below fell into unpardonable error not being able to see that on the state of the pleadings the appellants have an equitable interest on the land by operation of law.The well laid down position of the law is that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this is as good as a legal estate. The equitable interest so acquired can only be destroyed by a purchaser for value who had no notice of the existing equity. My Lords, there is no doubt that the appellants purchased the land in question from the respondents. A fact nowhere denied by the respondents. The equitable interest acquired by the appellants on the 254.558 hectares of land at Osapa Village in Eti-Osa Local

Government Area of Lagos State remains intact. The appellants are the true owners of the land in question, and there is nothing known to law to disturb their title to the land.
Thus it is very clear that the statement relied on by the respondents? counsel has been quoted out con. The case has nothing to do with priority of equity or equitable interest.
From the entire pleadings and evidence, it is clear that the sale of the land in dispute was conducted under native law and custom and not under English law. It is clear from the legion of authorities that creation of equitable interest under both the English Law and Customary Law are the same. The conditions are (1) Payment of purchase price (2) Possession. Under Customary Law, for a sale to be valid, the payment of the purchase price must be coupled with possession. See AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358 (SC) AT 14 (A-B), OKONKWO & ANOR V. OKOLO (1988) LPELR-2481 (SC) AT 38-39 (E-A), ADEDEJI V. OLOSO & ANOR (2007) LPELR-86 (SC) AT 22 (A-E), OGUNDALU V. MACJOB (2015) LPELR-24458 (SC) AT 23-24 (E-A). It is clear from all the above authorities that for

equity to be equal, there must be a valid sale coupled with continuous possession. In the instant case though the respondent?s receipts are dated 1977, there is no scintilla of evidence to show that the respondent ever took possession of the land in dispute. From the evidence before the Court, the appellant was the first to take possession of the land in dispute in 1990. Exhibit D2 clearly show that the appellant engaged a surveyor to survey the land in 1990 and the land is demarcated by pillar nos. CM12846, CM12847, CM12849 and CM12850. The respondent also tendered a survey plan but that survey plan was made 1992. On the face of the survey plan, Exhibit P5, it was purportedly made by the same surveyor who made the appellant?s survey plan. The respondent?s survey plan made in 1992 shows the same pillar numbers as in the appellant?s survey plan. What this means is that those survey pillars were used to demarcate the land in 1990 and were also used on the land in 1992. Apart from the fact that the appellant took possession immediately after purchase, the respondent pleaded and testified that the community gave notice that whoever has

interest in any land in the area covered by the layout shall regularize same or forfeit it and the appellant failed to do so. However, the deed of lease executed in favour of the appellant Exhibit D is dated 21/2/1995. The respondent?s deed of lease was executed on 11/3/1995. Obviously, that was after the execution of Exhibit D1. It is unbelievable that the respondent purchased the land in dispute in 1977 and failed to take possession until 1992 when the plan Exhibit P5 was made. There is no scintilla of credible evidence on record to support the respondent?s claim that he had been in peaceful enjoyment of the land until 2008 when he alleged that the appellant trespassed on the land. The plan which the respondent relied on as an act of possession was made after the appellant?s plan.
The law is trite that evaluation of evidence and ascription of probative thereto are the primary duties of the trial Court. However, where the evaluation relates to documentary evidence, the appellate Court is in the same position as the trial Court to examine and evaluate the documents. See DAVIES V. N.D.I.C & ORS (2014) LPELR-23768 (CA) AT 32-35 (D-E)

TUKUR V. UBA & ORS (2012) LPELR-9337 (SC) AT 42-43 (D-B), MAFIMISEBI & ANOR V. EHUWA & ORS (2007) LPELR-1812 (SC) AT 57-58 (F-B). If the learned trial judge had properly examined the entire documents tendered by both parties particularly Exhibits P4 and P5 along with Exhibits D1 and D9, the Court would have come to the conclusion that the appellant purchased the land in 1990, took possession by engaging a surveyor to carry out a survey of the land and continued to exercise acts of ownership by paying developmental fees and annual rental fees to the community. In contrast, the respondent who wants the Court to believe that he purchased the land in 1977 and was in peaceful enjoyment of the land had nothing to show that he was in possession and what he did on the land prior to or after 1992 when Exhibit P5 (the plan) was purportedly made.
The law is settled that where there are oral and documentary evidence before the Court, documentary evidence should be used as the hanger to access the oral evidence. In the instant case, the documents before the Court do not support the case of the respondent. Civil cases are decided on preponderance of

evidence which means the evidence on one side of the imaginary scale of justice outweighs the other. In the instant case, the evidence of the appellant outweighs that of the respondent. Therefore, the conclusion of the learned trial judge that the respondent?s equitable title in the land was created in January, 1977 and that he is entitled to judgment is not supported by the evidence on record and cannot be allowed to stand.
Since the appellant?s payment of purchase price is coupled with continuous possession and since the respondent failed to show that he was ever in possession of the land, the equities are not equal. The law gives recognition to the appellant?s equitable title and not the respondent?s. Accordingly this appeal has merit and its hereby allowed.

The judgment of the High Court of Enugu State delivered in suit no. E/1038/ 2008 on 16/5/2016 is hereby set aside. The plaintiff/respondent?s claim is hereby dismissed. The defendant/appellant?s counter claim succeeds. Judgment is entered in favour of the defendant/counter claimant/appellant as follows:
(a) It is declared that the defendant /counter

claimant/appellant is entitled to the statutory rights over the piece or parcel of land known as No. 286 Community Estate Layout Extension, Trans Ekulu in Enugu State and which said land is bounded by beacon nos. CM 12847, CM 12848, CM 12849 and CM 12850 and measuring approximately an area of 615. 888 Square Metres as shown on defendant?s survey plan.
(b) The plaintiff/respondent, his agents, servants, privies or howsoever called are hereby restrained from trespassing into, interfering or meddling with the defendant/appellant?s ownership and possession of the said land.
There shall be N200,000:00 (Two Hundred Thousand Naira costs in favour of the appellant against the respondent.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the Judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF JCA. I agree with his reasoning and conclusions. It is indeed trite that to establish title to land under native law and custom, payment of the purchase price must be accompanied by handing over of possession in the presence of witnesses. The Respondent’s receipt bearing an earlier date than that of the

Appellant could not claim priority because there was no evidence of being put in possession while the Appellant at all material time had been in possession after purchase. I agree that the appeal has merit. I also hereby allow it. I abide by the consequential orders of my learned brother in the judgment including the order as to costs.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA just delivered. I agree with the reasoning and conclusion contained therein.

The law is trite that in order to constitute a valid sale of land under customary law, there must be payment of purchase price i.e. consideration coupled with delivery of possession of the land sold. See AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358 (SC) AT 14 (A-B). The Respondent although from the evidence adduced at the Court below purchased the land in dispute in 1977 but never led evidence of possession. The Appellant on the other hand took possession of the land in 1990 just after the land was sold to him. The failure of the Respondent to lead

evidence with respect to possession of the land makes his equitable interest in the land less meritorious to that of the Appellant.

For the detailed reasons adumbrated in the lead judgment, I too, therefore, find merit in this appeal and I accordingly allow it. The judgment of the Court below is hereby set aside. I abide myself by reliefs together with the consequential orders entered in favour of the Appellant.

Appearances:

P.M.B Onyia with him, Catherine EjimkaraonyeFor Appellant(s)

No appearanceFor Respondent(s)

Appearances

P.M.B Onyia with him, Catherine EjimkaraonyeFor Appellant

AND

No appearance For Respondent