CHRISTIANA UTSU v. IORNA UJU (2011)

CHRISTIANA UTSU v. IORNA UJU

(2011)LCN/4645(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of June, 2011

CA/J/4/05

RATIO

FACTS: WHEN IS A FACT TAKEN AS PROVED IN CIVIL LITIGATIONS

In civil litigations a fact is taken as proved if it was admitted or if it was established on a balance of probabilities. PER ABUBAKAR BABANDI GUMEL, J.C.A

PROOF OF COUNTER CLAIM: NATURE OF A COUNTERCLAIM

For all intents and purposes a counterclaim is a live action and all the requirements for proof of facts affect it as they affect the suit within which it was brought. A counterclaimant must with equal force establish it on the strength of evidence in support of the pleadings upon which it was brought. It can only succeed on its strength not on the weakness of any defence against it. PER ABUBAKAR BABANDI GUMEL, J.C.A

IDENTITY OF LAND IN DISPUTE: THE CARDINAL DUTY OF PARTY WHO SEEKS A DECLARATION OF TITLE TO LAND

INCONSISTENCY IN EVIDENCE OF PARTY: EFFECT OF MATERIAL INCONSISTENCY IN THE EVIDENCE OF A PARTY

The effect of material inconsistency in the evidence of a party is all too obvious. It is, without any doubt, fatal to the proof of any particular fact. See AWOPEJO V. THE STATE (2000) NSCQR 312. It is a cardinal principle of adjudication that a Court is entitled to reject and discountenance any evidence that is riddled with material inconsistencies. PER ABUBAKAR BABANDI GUMEL, J.C.A

PLEADINGS: EFFECT OF GIVING AN EVIDENCE IN COURT THAT IS NOT FULLY PREDICATED ON THE PLEADINGS OF THE PARTIES

…any evidence given in Court that is not fully predicated on the pleadings of the parties goes to no issue. PER ABUBAKAR BABANDI GUMEL, J.C.A

SALE OF LAND: REQUIREMENTS FOR A VALID SALE OF LAND UNDER CUSTOMARY LAW

The appellant’s counsel was also right that Exhibit 1 qualifies as a receipt written by lay people under Customary or Local transaction and so does not come under the purview of Adeniran V. Olagunji (Supra). Customarily, the requirements for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession by the vendor to the said purchaser. It is not necessary to have a written contract or conveyance as is required under the English law. See Adesanya V. Aderounmu (2000) 6 SC (Pt. 11) 18; Elema v. Akenzua (2000) 6 SC (Pt. 111) 26 at 37. PER ABUBAKAR BABANDI GUMEL, J.C.A

SALE OF LAND: CONDITION FOR THE ADMISSIBILITY OF A RECEIPT AS EVIDENCE FOR PAYMENT FOR SALE OF LAND UNDER CUSTOMARY LAW

It is correct that under Customary transaction Exhibit 1 will not be required to conform to the English contract or conveyance for the appellant to rely on it to prove the sale of the land in dispute to her. However for a receipt to be accepted as proof of sale of land there must be evidence that the sale was in accordance with native law and custom of the area and that the purchaser of the land was put in possession. See Adike V. Obiareri (2002) 4 NWLR (Pt. 758) 537. PER ABUBAKAR BABANDI GUMEL, J.C.A

SALE OF LAND: INGREDIENTS THAT MUST BE SATISFIED FOR THERE TO BE A VALID SALE OF LAND UNDER CUSTOMARY LAW TRANSACTION

The appellant did not plead nor lead any evidence to show that the native law and Custom of Logo 1 Makurdi was followed in the sale of the land by Mom Ugo to her. Also there is nothing that shows that she was led into possession. It is of general application that no one can customarily be led into possession privately. There must always be witnesses even when money is paid in lieu of the customary rites. This conforms with this courts position that before there can be a valid sale of land under the customary transaction, three ingredients must be present namely: (a) Payment of purchase price; (b) Purchaser must be let into possession by the vendor; (c) In the presence of witnesses See Ogundaju v. Macjob (2006) 7 NWLR (Pt.978) 148. PER ABUBAKAR BABANDI GUMEL, J.C.A

JUSTICES

MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

CHRISTIANA UTSU – Appellant(s)

AND

IORNA UJU – Respondent(s)

ABUBAKAR BABANDI GUMEL, J.C.A: (Delivering the Leading Judgment): This is an appeal against the judgment of the Benue State High Court, Makurdi Division delivered on 9th July, 2004 in Suit No. MHC/146/2000. The Appellant was the Plaintiff at the Lower Court and in a statement of claim dated 21/06/2000 but filed on 26/6/2000 she prayed and sought for a declaratory and injunctive reliefs. She also claimed for monetary compensation by way of general and special damages. The reliefs are in the following terms:-

a. A declaration that Plaintiff is the rightful owner of plot No. BNC 2749 lying and situated at Yina layout Logo No. 1 Makurdi.

b. An order of perpetual injunction restraining the defendant, his agents, assigns, successors in-title and whomsoever claiming through him from further trespassing on the Plaintiff’s land; and

c. Special and general damages in the sum of N500,000.

The relevant particulars of special damages were also endorsed on the statement of claim.

The Respondent, as the Defendant, denied the claim and counter-claimed as follows:-

a. A declaration of title to the said piece of land;

b. An order of perpetual injunction restraining the plaintiff; her agents, privies, assigns and any person claiming through her from trespassing into the said land; and

c. N1 million general damages for trespass.

The plaintiff/appellant filed a reply and defence to the statement of defence and counterclaim of the defendant/respondent.

The matter proceeded to trial during which oral and documentary evidence were adduced. At the conclusion of the trial, the lower court delivered its judgment wherefore it decided against the plaintiff/appellant and found in favour of the defendant/respondent in terms of his counterclaim to the extent of the declaratory and injunctive reliefs only, while it refused the claim for damages for trespass. The plaintiff/appellant was dissatisfied with this decision and appealed to this court in a notice of appeal dated and filed on 20th September, 2004. It incorporates 6 grounds of appeal with particulars thereto.

To argue the appeal, learned counsel to the Appellant filed a brief of argument dated 10/09/2005 in 12/12/2005 which was deemed properly filed and served on 30/11/06. For the Respondent, learned counsel filed a brief of argument on 21/12/2006. At the hearing of the appeal, respective learned counsel identified, adopted and relied on their briefs, without more. While learned counsel to the Appellant urged on us to allow the appeal. Learned Counsel to the Respondent urged for the appeal to be dismissed. In paragraph 5.00 of his brief learned counsel to the Appellant formulated and argued the following 4 issues. They are:-

1. Whether the Trial Court Judge was right when she held dismissing appellant’s suit that she failed to establish the boundaries of her land with certainty but held that Respondent established the boundaries his land with certainty despite material inconsistencies and contradictions.

2. Whether the Trial Court Judge was right in holding that Appellant did not established her root of title to the plot no. BNC 2749 in issue but upheld Respondent’s counter claim.

3. Whether the Trial High Court Judge was right in not declaring Respondent’s counterclaim statute-barred and thus dismissing his claim.

4. Whether or not the Trial Lower Court was correct in dismissing Appellant’s claims for damages holding that the some was not established as her claim for title and identity of the land failed.

For the Respondent, learned Counsel formulated and argued 3 issues they are:-

a. Whether or not the decision of the Learned Trial Judge dismissing the Appellant’s case would have been otherwise had the site plan been admitted.

b. Whether or not the Respondent’s counter claim was statute-barred.

c. Whether the Appellant (Plaintiff) proved her case and was entitled to judgment in the Trial Court.

Before I proceed to determine this appeal, there is an important issue which I think needed to be sorted out at this stage. I wish to observe that learned counsel to the appellant did not make any attempt to relate the issues he formulated to particular grounds of appeal as is customarily done by Counsel these days. It is for very good and obvious reasons that this approach is considered a good practice in Appellate litigation. Against this background, I wish to observe that ground 2 of the grounds of appeal complains of the counterclaim being statute barred. It is however very clear that no defence of limitation of time was pleaded by the Appellant in her defence to the counterclaim at pages 19 to 20 of the record of appeal. Therefore, no issues were joined on limitation of time in the entire pleadings of the parties, that issue never arose and did not form part of the trial at the Lower Court. No decision on it was made or could validly have been made. It is rather storage and curious for learned counsel to the Appellant to surreptitiously smuggle the issue of statute bar to attack the counterclaim of the Respondent of the appellate stage of this matter. Ground 2 could never have validly arisen from the decision of the Lower Court. It also could not have flown therefrom. Though without specifically saying so by learned counsel to the Appellant, it does not admit of any arguments that issue 3 of the issues formulated on behalf of the Appellant is directly related to ground 2. Without any doubt, this is on ambush which should not be allowed by this Court. Ground 2 is incompetent and issue 3 out of which it was formulated would also remain tainted by that incompetence and liable to being discountenanced. To that extent, I hereby discountenance and strike out ground 2 and issue 3, and accordingly proceed to determine this appeal on issues 1, 2 and 4 as reproduced hereinabove.

In arguing his issue 1, learned counsel to the Appellant Mr. Nguekwagh began by referring to paragraph 3 of the counterclaim and explained that the Respondent apparently admitted and conceded to the Appellant’s description of the land in dispute because it was the some land that was the subject of the claims of the respective parties. Based on this, learned counsel argued that because what was admitted needed no further proof the Appellant was relieved of any further responsibility of adducing evidence to prove the identity of the land in question. He urged this Court to hold that the Appellant had conclusively established the identity of the land in her claim. While also referring to paragraphs 3(ix) together with paragraph 7(1) of the statement of defence as well as paragraph 3(a) of the counter-claim learned counsel argued that the Respondent had agreed and accepted the identity of the land the Appellant claims. According to learned counsel it was curious for the Respondent to give oral evidence on the identity of the land in dispute of variance with the settled proceedings. Learned Counsel Mr. Nguekwagh went on to observe that the Lower Court fully realized and took note of the contradictory and inconsistent evidence of the Respondent on the identity of the land being claimed by the parties. Learned Counsel continued to highlight instances of contradictions in the oral evidence of the Respondent against his pleadings and the findings of the Lower Court on same. He particularly emphasized such instances as those referred to by the Learned Trial Judge at pages 61 – 63 of the record of appeal. With respect to the visit to locus in quo, learned counsel explained that it was meant to provide on opportunity to eliminate minor discrepancies in the description of the identity of land in dispute and it was never meant to give room to a party to make a fresh case on new facts. He referred to SEISMOGRAPH SERVICES LTD V. ONOKPASA (1979) 1 ALL NLR 343 IPINLAYE V. OLOKOTUN (1996) 39 LRCN 1023 at 1049 IYAMA OTIKA ODICHE V. OGOH CHINOGWU (1994) 7 – 8 SCNJ 317 at 325 etc. Upon all the foregoing learned counsel maintained that the Respondent did not prove the boundaries of his land. He then submitted that it was erroneous for the Lower Court to hold as it did that the land of the Respondent comprised of a sure larger area or to find that the land claimed by the Appellant was a small piece within the larger land of the Respondent. He urged the Court to hold that the Appellant established the identity of the land she was claiming with certainty while the Respondent had failed to so do. He prayed for this issue to be resolved in favour of the Appellant.

Just as it affected the issue formulated by the Appellant on statute-bar or limitation of time, the same fate awaits the 2nd issue formulated by learned counsel on behalf of the Respondent. It is a fresh issue raised in an appeal without the leave of this Court being sought and obtained. Issue (b) at page 2 of the Respondent’s brief is consequently also struck out for being incompetent.

In his response on the issue of establishment of identity of land in dispute. Learned Counsel Mr. Dim for the Respondent emphasized that the learned Trial Judge was right to find as he did. He then went on to underscore the attempt of the Appellant to prove the identity of the land with reference to her pleadings in paragraphs 3 and 9 of the statement of claim and her oral and documentary evidence. Learned Counsel also argued in favour of the rejection of the site plan tendered by the Appellant at the Lower Court. Also, learned counsel pointed out that even of the locus in quo, the Appellant foiled to point out any of the features she claimed marked the boundary of the land described in paragraphs 3 and 9 of her pleadings.

According to Mr. Dim of Counsel the Lower Court was right to reject the site plan in evidence after it found that it was made by on interested party during the pendency of a matter. He referred to a number of decided cases and S.91(3) of the Evidence Act. In addition to this, learned counsel explained that it is trite that parties are bound by their pleadings and evidence on any matter not pleaded goes to no issue. He referred to the case of ABOYEMI V. AMUSA MOMOH & 2 ORS. (1994) 4 SCNJ (Pt.11) 302 at 315 and submitted that the Learned Trial Judge was right in finding the Appellant had failed to prove the boundary of her with certainty. In a further effort learned counsel suggested that the Respondent was able to give a vivid and accurate description of the land which was the subject matter at his counterclaim. He added also that the Appellant was also able to point out the features of his land during the proceedings at the locus in quo. Upon this, learned counsel then emphasized that the Lower Court was right to decide that the portion of land claimed by the appellant was part of a larger land counterclaimed by the respondent, irrespective of any inconsistencies or contradictions in the evidence adduced by the Appellant.

In conclusion, learned counsel urged on this Court not to disturb any findings of a Trial Court that were made on credible evidence before that Court. According to Mr. Dim it is not for this Court to substitute its views against those of a Lower Court, except where not doing so would occasion a miscarriage of justice. He referred to the case of BOLAJI ARE & ANOR. V. ALHAJI SALIU (2006) FWLR (Pt.327) 574 in urging this Court to resolve this issue against the Appellant.

In resolving this issue it is necessary to refer to the relevant paragraph of the pleadings and the evidence adduced in support thereof. In identifying the land in dispute the plaintiff/appellant had pleaded in paragraph 3 of the statement of claim thus:-

3. “Sometime on or about the 12th day of December, 1989, the plaintiff bought a parcel of land lying ad situate at Logo No. 1 Makurdi from one Mom Ugoh and this was reduced into an agreement of the same date and witnessed by Asemakaa Ubi and Ahua Nyam for the buyer and seller respectively. The agreement aforesaid shall be relied upon at the hearing and it is hereby pleaded.”

In addition to this, the Plaintiff/Appellant pleaded further in paragraph 9 as follows:-

“The plaintiff avers further that, after the purchase of the land, it was surveyed by the Bureau of lands and surveys as plot No. BNC 2749 and covers an area of O. 254 hectares and takes its hearing from beacon No. PC 3034 and measures 38.00 metres in the North, 35 metres in the South, 67.00 metres in the East and 72.00 metres in the West with beacon Nos. MKD 7183, MKD 7184, MKD 7185 and MKD 7186 and a site plan approve (sic). The site plan is hereby pleaded.”

From these averments, it is clear that the identification of the land was general under paragraph 3 and specific and more detailed under paragraph 9. The declaratory relief refers to the land both in terms and con of Paragraphs 3 and 9. In proof of the averment in Paragraph 3, Exh. 1 was tendered and admitted in evidence, while a site plan was sought to be admitted as an Exhibit in proof of the averment in paragraph 9. This effort came to naught when the Lower Court found the site plan in admissible in the circumstance and rejected same.

The Lower Court looked of Exh. 1 and while relying on the case of ADENIRAN V. OLAGUNJU (2002) FWLR (Pt. 87) 825 at 840, decided that it did not fall within the description of a note or memorandum as required by Law, and that it also failed to give the identity of the fond in dispute with any certainty. Also while considering the pleadings in paragraph 9 in relation to the visit to the locus in quo, the learned trial Judge found that the appellant had failed to point out any of the 4 beacons that she claimed had demarcated and set out the boundaries of her land. In the opinion of the learned Trial Judge since the Appellant had described the identity of the land in dispute in terms of beacon numbers she was bound to prove some in terms and by that yardstick.

The Learned Trial Judge also found it curious that the Appellant failed to call the officials of the Bureau of land and surveys who she claimed she paid statutory fees and went to survey the land and plant beacons thereon. No officials could be called to give evidence on the plot number BNC 2749. In the opinion of the Learned Trial Judge this failure of the Appellant was very fatal to the very crucial proof of the identity of the land in her claim. And while relying on the case of OKE & ORS. V. EKENE & ORS. (1982) NSCC 547 at 557, the Learned Trial Judge found and held that the Appellant had failed to prove the identity of the land in dispute. I addition to this, the Lower Court went further to decide that to the extent that the identity of the land claimed by the Appellant remained uncertain a declaration of title cannot be granted in her favour.

Apart from the omnibus ground of appeal in ground 5, there is no specific appeal against these crucial findings of the Lower Court.

The foundation of the counterclaim of the Respondent is paragraph 1 thereof which adopts and incorporates paragraphs 1 – 8 of the statement of defence as the basis of it. But of greater significance are some of the averments in paragraphs 3 of the statement of defence. These averments seek to identify the land in the counterclaim by its physical features and characteristics and also boarders with other lands contagious to it and the owners of such other lands. By paragraph 3(a) of the counterclaim the Respondent sought for “a declaration of title to the said piece of land.” (underlining mine for emphasis).

After considering the oral evidence of the Respondent as DW1 and that of DW2 together with the findings at the locus in quo, the Learned Trial Judge found thus:-

“No doubt, there are material inconsistencies in the above testimonies of the defendant, testifying as DW1. In one breathe, he shares a boundary with Mom Ugo in another, he has no common boundary with Mom Ugo.” (See lines 15 – 19 page 62 record of oppeoal.)

Further to this finding the Lower Court continued its consideration of the pleadings and the totality of the evidence before it and what it physically saw of the locus in quo and in the end come to the conclusion that the evidence of title of the Respondent was more convincing and declared title in his favour.

In civil litigations a fact is taken as proved if it was admitted or if it was established on a balance of probabilities. For all intents and purposes a counterclaim is a live action and all the requirements for proof of facts affect it as they affect the suit within which it was brought. A counterclaimant must with equal force establish it on the strength of evidence in support of the pleadings upon which it was brought. It can only succeed on its strength not on the weakness of any defence against it.

The counterclaimant in its paragraph 3(a) is predicated on “…..the said piece of land.” This could create some ambiguity as “the said piece of land” could be the land claimed by the Appellant or the one in the counterclaim described in paragraph 3 of the statement of defence.

According to the Lower Court there was no doubt that there were material contradictions and inconsistencies in the evidence adduced to support the counterclaim. The effect of material inconsistency in the evidence of a party is all too obvious. It is, without any doubt, fatal to the proof of any particular fact. See AWOPEJO V. THE STATE (2000) NSCQR 312. It is a coordinal principle of adjudication that a Court is entitled to reject and discountenance any evidence that is riddled with material inconsistencies. The submission of Learned Counsel Mr. Dim that the Respondent was able to give a vivid and accurate description of the land in the counterclaim is totally unacceptable. While the Respondent may have given the description of some land in his oral evidence and of the locus in quo, that description is not fully and strictly in line with the pleadings in the defence and counterclaim. As rightly found by the Lower Count there were material inconsistencies between the pleadings and the evidence on record. Also, as rightly pointed out by learned Counsel Mr. Dim, while referring to the decision in OSENI V. MOMOH (supra) any evidence given in Court that is not fully predicated on the pleadings of the parties goes to no issue.

The cardinal duty of party who seeks a declaration of title is to show the precise area of the land; its boundaries and other salient features. See OJIAKO V. EWURU (1995) 12 SCNJ 79 ARABE V. ASANLU (1980) 5-7 SC 78 and AYINLA V. ADISA (1992) 7 NWLR (Pt.256). In the circumstance of the instant appeal, having so found without any doubts that there were material inconsistencies in the evidence of the Respondent on the identity of the land in dispute, the Lower Court ought to have discountenanced and rejected some as unreliable for the purpose of granting a declaration of title. According to the Supreme Court in OKE & ORS. V. EKENE & ORS (supra).

“Where evidence as to boundaries of a piece of land, in respect of which a declaration of title is claimed, is inconclusive, scanty or of little or no weight, declaration should be refused for lack of certainty and identity of the subject matter.”

The effect of this decision ought to have been brought to bear on any evidence found to have no doubt been afflicted by material inconsistencies. The learned trial judge therefore having found as he did fell into an error when he failed to reject the evidence of the Respondent on the identity of the land in dispute.

From the foregoing, I am of the view that the findings of the Lower Court that the Appellant had failed to establish the identity of the land in her claim with certainty and all the steps taken by the learned trial judge in reaching that decision have remained impeccable, impressive and faultless. Added to the fact that there is no specific appeal against those findings, I do not see any reasons to disturb or interfere with them. However, with respect to the evidence of the Respondent, which to the extent of being riddled with material inconsistencies, I am unable to agree with the learned trial judge that it can be upheld and used to grant a declaration of title. The findings of the Lower Court upon evidence that is afflicted with material inconsistencies are clearly perverse and ought not to be allowed to stand.

Having thus decided and resolved this issue both claims for declaration of title ought to fail and hereby fail.

Issue 2 as set out in the Appellant’s brief of argument dovetailed and is clearly subsumed in issue 1. Since the claims for declarations of title have failed in the main action and the counter-claim, I do not see any good reasons to go into issues 2 and 4 in the Appellant’s brief. Issue 1, having fully determined this appeal, it is hereby of allowed in part. The judgment of the Benue State High Court in suit No. MHC/146/2000 delivered on 9th July, 2004, dismissing the claim of the Appellant for declaration of title, injunction and damages is hereby affirmed. However, the part of the same decision granting declaration of title and perpetual injunction in the counterclaim of the Respondent is perverse and hereby set aside. The counterclaim is also dismissed. No order for costs.

KUDIRAT MOTONMORI OIATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading in draft the judgment of my learned brother, A.A.B. Gumel JCA just delivered. I am in complete agreement with his reasoning and conclusion.

I also allow the appeal in part. I affirm the judgment of the Benue State High Court in Suit No: MHC/144/2000 delivered on 09/07/2004 dismissing the appellant’s claim for declaration of title, damages and injunction.

I also set aside the part of the decision granting the respondent’s counterclaim for declaration of title and perpetual injunction and dismiss the said counterclaim, I make no order for costs.

UCHECHUKWU ONYEMENAM, J.C.A: I was privileged to read in draft the judgment just delivered by my learned brother, A.A.B. GUMEL JCA. I agree with his reasoning and conclusion.

Counsel for the appellant submitted that the appellant proved and established her root of title and was entitled to the judgment of the lower Court. By paragraph 3, 4 and 5 of the statement of claim the appellant pleaded her root of title by purchase from Mom Ugo of Logo 1 Makurdi. Paragraph 3 states:

“Sometimes on or about the 12th day of December 1989, the plaintiff bought a parcel of land lying and situated at Logo No, 1 Makurdi from one Mom Ugo and thus was reduced into an agreement of the same date and witnessed by Asemakaha Ubi and Ahua Nyam for the buyer and seller a respectively, The agreement aforesaid shall be relied upon at the hearing and it is hereby pleaded”,

The averment in paragraph 3 of the appellant’s reply to the statement of defence of the respondent is equally vital. Therein the appellant averred:

“In further reply to the said paragraph, the plaintiff avers that the said Mom Ugo acquired good title to the land when he settled on it as vacant land in the early 1940s”,

Appellant’s counsel submitted that purchase is one of the ways to prove title among others. He contended that the appellant who claims title by purchase from Mom Ugo also proved her vendor’s title by first settlement on the land in the early 1940s and so proved her title to the land in dispute. Counsel cited: Nwosu v. Udeaja (1990), NWLR (Pt. 125) 188 at 218; Ogbukwelu & Ors. v. Umfanafunkwa and Others (1994) 5 SCNJ 24 at 35.

By paragraphs 3(iii) and (iv) of the statement of defence the respondent admitted the settlement of Mom Ugo, appellant’s vendor in Logo t, Makurdi but asserted that Mom had neither interest nor title in the land to convey. By this the title of Mom Ugo was in dispute.

At page 52 Lines 8 – 20 of the record, the lower court held that based on paragraph 3(vi) quoted above and on the authority of Dosumu V. Joto (1987) 2 NSCC 1182 at 1193; the appellant has to prove the title of her vendor as same has been made an issue.

The learned trial Judge was right when she held that the appellant did not prove the title of Mom Ugo as no evidence was led in support of paragraph 3 of her reply to the respondent’s statement of defence especially since under cross examination she said;

“I do not know how Mom Ugo got the land which he gave me. All I know is that the land belongs to him….”.

See page 29 lines 25 – 27 of the record. The sole witness of the appellant PW2 stated:-

“I know the land in dispute between the parties here, from my house to the land in dispute is less than half a mile, Before I came to Makurdi and settled at Logo. I Mom Ugo was already settled there ————. The plaintiff has been farming on the land in dispute and on one part of it she built 2 round huts, —- ——-. I cannot say how the plaintiff got the land since I was not there when she got it, All I know is that I saw her farming on the land’.

See page 33 lines 15 – 25.

Exhibit 1 is the document the plaintiff relied on in proof of her assertion that Mom Ugo sold the land in dispute to her.

Exhibit 1 is captioned –

AN AGREEMENT BETWEEN MR. MOM AND MRS. CHRISTIANA UTSU:-

and it states: –

“I, Mr. Mom Ugo of the above address sold my land property to one Mrs. Christiana Utsu of Logo No, 1, Makudi at the cost of four hundred naira (N400.00) only on the date of 12th December, 1989.

This was done at the presence of the following people:”

Exhibit 1 was executed by both parties and their respective witnesses. Exhibit 2 simply acknowledges Exhibit 1 and the further payment of N40.00 in respect of the plot sold.

The learned trial Judge was right when she relied on the case of Adeniran V. Olagunju (2002) FWLR (Pt.87) 825 at 840 to hold that Exhibit 1 was not good in law. The appellant’s counsel was also right that Exhibit 1 qualifies as a receipt written by lay people under Customary or Local transaction and so does not come under the purview of Adeniran V. Olagunji (Supra). Customarily, the requirements for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession by the vendor to the said purchaser. It is not necessary to have a written contract or conveyance as is required under the English law. See Adesanya V. Aderounmu (2000) 6 SC (Pt. 11) 18; Elema v. Akenzua (2000) 6 SC (Pt. 111) 26 at 37.

(a) Payment of purchase price;

(b) Purchaser must be let into possession by the vendor;

See Ogundaju v. Macjob (2006) 7 NWLR (Pt.978) 148.

The appellant in this case proved that she paid purchase price evidenced by Exhibits 1 and 2 but did not prove that she was let into possession by Mom Ugo in the presence of witnesses. She therefore failed to prove valid sale of the land in dispute to her by Mom Ugo either under the received English law or customary transaction.

For this and other reasons proferred in the lead judgment. I too dismiss the appeal. I uphold the judgment of the lower Court in Suit No. MHC/146/2000. I abide by the consequential orders.

Appearances

Mr. S.A. Nguekwagh;For Appellant

AND

Mr. Timothy Dim;For Respondent