CHUKWUMA v. ARINZE & ANOR (2020)

CHUKWUMA v. ARINZE & ANOR

(2020)LCN/14783(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AS/450/2017

RATIO

APPEAL: EFFECT OF A GROUND OF APPEAL WHICH NO ISSUE IS DISTILLED FROM

It is a trite principle of law that where no issue is distilled from any ground of appeal, such a ground is deemed abandoned and liable to struck out, see; PEOPLES DEMOCRATIC PARTY (PDP) v INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) LPELR – 23808 (SC); MATHEW v STATE (2019) LPELR – 46930 (SC); OKORONKWO v ORJI (2019) LPELR – 46515 (CA). PER OBASEKI-ADEJUMO, J.C.A.

LAND LAW: BURDEN OF PROOF IN A CLAIM FOR DECLARATION TO TITLE

In AYEMWENRE v EVBUOMWAN (2019) LPELR – 47213 (CA); this Court held on whom the burden of proof in a claim for declaration of title to land thus;
“Now the law is settled that in an action for declaration of title to land the onus lies on the party claiming the title to satisfy the Court that he is entitled on the evidence brought by him for declaration of the piece of land claimed. In other words, the onus is on the plaintiff to satisfy the Court that he is entitled on the evidence adduced by him to a declaration of title. See KODILINYE VS. MBANEFO ODU (1935) 2 WACA 336; OLOWOSAGO VS. ADEBANJO & ORS (1988) LPELR 2601 (SC); AWOMUTI VS. SALAMI (1978) 3 SC 105; ODUTOLA VS AILERU (1985) SC 188; ADEGOKE VS ADIBI & ANOR (1992) 5 NWLR (PT. 242) 410; OWHONDA VS EKPECHI (2003) 17 NWLR (PT. 849) 326.”
per OSEJI, JCA (PP. 20 – 21; PARAS. F – C)
See also; OKOYE & ORS v NWANKWO (2014) LPELR – 23172 (SC); ONOVO & ORS v MBA & ORS (2014) LPELR – 23035 (SC); AYORINDE & ORS v SOGUNRO & ORS (2012) LPELR – 7808 (SC); AKUJOBI & ORS v AKUJOBI (2017) LPELR – 41685 (CA). PER OBASEKI-ADEJUMO, J.C.A.

LAND LAW: REQUIREMENT FOR AN UNREGISTERED DEED ADMITTED AS PURCHASE RECEIPT IN ORDER TO CREATE AN EQUITABLE INTEREST IN LAND

It is also trite that where an unregistered deed is admitted as purchase receipt, there must also be sufficient proof of delivery of possession in order to create an equitable interest in the land.
In OHIAERI v YUSSUF & ORS (2009) LPELR – 2361 (SC); the Supreme Court held on the principle above thus;
“The established legal principle is that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person. This principle was examined in considerable details and applied in AYINLA v SIJUWOLA (1984) N.S.C.C. 301 at 312 the Supreme Court per Nnamani JSC expanding the principle had this say:- “…if a party received title to land under native law and custom and entered into possession and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bonafide purchaser would not be upheld. See AMAO V ADEBONA (1962) L.L.R 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T.A. ORASANMI V M. O. IDOWU (1959) 4 F.S.C 40. More close to the contention herein is the decision in SOREMEKUN v SHODIPO (1959) L.L.R. 30 to the effect that if land is sold to a party without executing a formal deed of conveyance, his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decision of the privy council in OSHODI v BALOGUN & ORS 4 W.A.CA. 1 at p.6 and SULEIMAN & ORS v JOHNSON 13 W.A.C.A. 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time, the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate…” The above is a clear restatement of the principle. See also REGISTERED TRUSTEES OF MUSLIM MISSION HOSPITAL COMMITTEE v. OLUWOLE ADEAGBO (1992) 2 N.W.L.R. (Part 226) 690 at 706. The emphasis is the payment of the agreed full or part of the purchase price coupled with possession by the purchaser.”
Per TABAI, JSC (PP. 14 – 16, PARAS. F – E).
This honourable Court also held in MAMWAN v ELISHA (2018) LPELR – 46360 (CA);
“The Supreme Court in the case of Zaccala vs. Edoso (2018) 6 NWLR (Pt. 16161) 528 at 532 held that a purchaser of land who has paid and taken possession of the land, by virtue of a registration instrument which has not been registered, has hereby acquired an equitable interest which is as good as a legal estate.”
per HASSAN, JCA (P. 31, PARAS. B – D).

See also; NSIEGBE & ANOR v MGBEMENA & ANOR (2007) LPELR – 2065 (SC); ANYI & ORS v AKANDE & ORS (2017) LPELR – 41973 (CA); IDOWU v AJAYI & ORS (2016) LPELR – 41339 (CA). PER OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

JOHN NWABUEZE CHUKWUMA APPELANT(S)

And

1. MR. VINCENT IBE ARINZE 2. MR. UCHE ARINZE RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal flows from the decision of HON. JUSTICE D. C. MAIDOH of the High Court, Asaba delivered on 8th of June, 2017, wherein the learned judge entered judgment in favour of the Respondents.
A summary of the facts leading to this appeal is that; the Appellant inherited the land in dispute from his mother (and his grandmother), and had lived on the land in dispute since his childhood.

Sometimes in March, 1988, the Appellant sold the land in dispute to one Mr. Alphonous Obi, but when the Appellant’s uncle, one Mr. Joseph Onwudinjo, supposedly sued the Appellant in respect of the land vide Suit No. OSACC/106/1997, the Appellant refunded the said Alphonsus Obi his purchase price.

However, the Alphonsus Obi went ahead to sell the land in dispute to the 2nd Respondent in 1997. The Respondents (as Claimants at the lower Court) instituted this action at the lower Court against the Appellant on 19th February, 2015, claiming as follows;
i. A DECLARATION that the Claimants are entitled to the grant of statutory right of occupancy over,

and on this parcel of land measuring approximately 433.656 sq meters, situate at No. 2, Emenashi Street, off Isioma Onyeobi way, Cable point, Asaba, within the jurisdiction of the Honourable Court.
ii. The sum of N1,000,000.00, being general damages for acts of trespass of the defendant on this land of the claimants hereinabove described.
iii. AN ORDER of this Honourable Court declaring any purported transfer, alienation, assignment of this land of the Claimant hereinafter described, or any part thereof by the defendant or any person or body of persons, null and void and of no effect.
iv. AN ORDER of injunction restraining the defendant and by himself, agents, assigns, privies from further trespassing, entering and/or staying and/or laying claim on this land of the Claimants described here-in-above.

The lower Court granting the claims of the Respondents and entered judgment in favour of the Respondents.

Dissatisfied, the Appellant filed their Notice of Appeal dated 19th day of June, 2017. The Appellant’s brief was filed 4th March, 2019 and the Reply brief was filed 24th May, 2019 both were settled by E. C. Ikenwe

Esq. of E. C. IKENWE & CO where the following issues were raised for determination;
i. Whether or not a mere receipt without proof of possession can create an equitable interest in land and whether as between the Respondents and the Appellant, who has established a better title to the land in dispute?
ii. Whether or not the lower Court rightly granted the Respondents’ claim for declaration of title to land predicated on an unregistered Deed of Conveyance (Exhibit “B”) tendered as a receipt without proof or evidence of delivery of possession as required by law?
iii. Whether or not the Appellant has refunded Alphonsus Obi his purchase price with respect to the land in dispute before Alphonsus Obi sold to the 2nd claimant?
iv. Whether or not Respondents’ failure to call Mr. Alphonsus Obi, (a vital witness to their case) on this material issue as to the time of payment and refund of the purchase price for the land is fatal to the Respondents’ case? Whether or not the Respondents’ have proved their case on a balance of probability?
v. Whether or not the Respondents are entitled to the reliefs sought?

The Respondents’ brief was filed on 2nd April, 2019 and settled by Lordman Agbata, Esq, where three issues were distilled for determination:
i) Whether between the appellant and the Respondents who has the onus of proving that the Appellant has refunded/returned the purchase price of the land in question to Mr. Alphonsus Obi.
ii) Whether giving the evidence led at the trial both oral and documentary, was the trial Court right in holding that the Respondents herein have successfully proven better title to the land in dispute to be entitled to their reliefs sought from the trial Court.
iii) Whether the trial Court rightly granted a declaration of title to the Respondents in view of the titled documents produced and evidence of procession on the land.

The Respondents also filed a notice of Preliminary Objection on 2nd April, 2019 contending that;
*Grounds 4 and 5 of the Notice of Appeal has been abandoned as no issue was formulated/distilled out of same and same is likely to be struck out.
*Issues bordering on trespass and injunction for determinations as canvassed by the Appellant in the Appellant’s brief of

argument is not related to or raised from any of the Appellant’s grounds of Appeal and same is liable to be struck out.”

The Respondents submitting on the above postulate that grounds of appeal are the bedrock of any appeal and any ground of appeal that issue is not distilled from is deemed abandoned and ought to be struck out. Counsel urges the Court to hold that grounds 4 and 5 have been abandoned, and strike out same; OKEKE v EZIKE (1993) 4 NWLR (PT. 290) 751 was cited in aid.

CONTRACT RESOURCE NIG LTD v STANDARD TRUST BANK LTD (2014) ALL FWLR (PT. 731) AT 1850 PARA G – H, were cited in submitting that issues for determination must flow from the grounds of appeal filed, where they did not flow from grounds of appeal filed, they are incompetently valueless and ought to be struck out. Counsel urges the Court to hold that issues of trespass and injunction of the Appellant’s issues for determination is not distilled from any of the Appellant’s grounds of appeal and as such issues are incompetent and ought to be struck out.

The Appellant in reply to the Respondent’s preliminary objection, submits that issues of trespass

and injunction in the Appellant’s brief are distilled from ground 4 or D of the Notice of Appeal which is “whether the learned trial judge erred in granting reliefs sought”. The reliefs sought by the Respondents include trespass and injunction, therefore the issues of trespass and injunction are connected to ground 4 of the Notice of Appeal which deals with the reliefs sought, i.e damages for trespass and injunction.

Appellant further submits that issues 3 and 4 were distilled from ground 5 of the Notice of Appeal and which said issues were thoroughly canvassed in paragraphs 4.6 to 4.10 of the Appellant’s brief of Argument. That the trial Court wrongly relied on the Respondents’ conflicting and unreliable evidence and where the trial Court gives judgment without properly evaluating the evidence before it, it would amount to the trial Court given its judgment against the weight of evidence as contained in ground 5, ENEMCHUKWU v OKOYE & ANOR (2017) 6 NWLR (PART 1560), PAGE 37 or (2016) LPELR – 40027 – CA. Ground 5 of the Notice of appeal is therefore connected to issues 3 and 4 which are extensively argued together in the Appellant’s brief.

RESOLUTION.
It is a trite principle of law that where no issue is distilled from any ground of appeal, such a ground is deemed abandoned and liable to struck out, see; PEOPLES DEMOCRATIC PARTY (PDP) v INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) LPELR – 23808 (SC); MATHEW v STATE (2019) LPELR – 46930 (SC); OKORONKWO v ORJI (2019) LPELR – 46515 (CA).

The contention of the Respondents is that no issues were distilled from grounds 4 and 5 of the Appellant’s Notice of Appeal.
I have taken a close look at the grounds of appeal in the Appellant’s Notice of Appeal dated 19th June, 2017 at pages 135 – 138 of the Record and the issues for determination as couched by the Appellant in this appeal.

Firstly, the Appellant did not indicate which issue was raised or distilled from which ground (s) of appeal, he simply distilled his issues.

Secondly, the Appellant has submitted in his reply that issues 3 and 4 were culled from ground 5 of the Notice of appeal, while the issues of trespass and injunction in the Appellant’s brief were culled from ground 4 of the Notice of appeal.

The Appellant is not bound to raise the exact number of issues as his grounds in his Notice of Appeal, as long as issues relates to the grounds of appeal, it doesn’t have to be in numerical order as the grounds, and his issues are not of mixed law and facts.

I don’t believe that grounds 4 & 5 of the Notice of Appeal were abandoned as raised by the Appellant and as such should be struck out.
I hereby find that this preliminary objection lacks merit and is hereby dismissed.
Having resolved the issues in the preliminary objection the appeal, I shall proceed to hear the main appeal.

APPELLANT’S SUBMISSION
Arguing issues 1 & 2 together, Appellant submits that a purchase receipt without proof of delivery of possession cannot create an equitable interest in land. Appellant further submits that the lower Court wrongly granted the Respondents’ claim for declaration of title to land predicated on an unregistered Deed of Conveyance (Exhibit “B”) tendered as a receipt without any iota of proof or evidence of delivery of possession as required by law. That an unregistered

registrable instrument like a deed of conveyance is not admissible nor can it be pleaded for the purposes of proving title, it must be struck out by the Court; AGBODIKE v ONYEKABA (2001) FWLR (PART 62) 1915, RATIO 5 AND 6; AWAOGBO v EZE (1995) 1 NWLR (PART 373) 393; DABO v ABDULLAHI (2011) DELTA LAW REPORT (DCR) 82 AT 1121, PARAGRAPHS B – C, RATIO 11. SC E; OGUMBAMBI v ABOWAB (1950 – 51) 13 WACA 222; AKANBI v OSSET (2012) ALL FWLR (PART 657) 785 AT 797, PARAGRAPH G, AND PAGE 799, (PARAGRAPH C). (RATIOS 2 & 3); DARO v ABDULLAHI (2011) DLR 82 AT 112, PARAGRAPH B – C, RATIO 11. SC were cited in aid.

OKOYE v GARKE (1999) FWLR (PART 62) 1915, RATIO 5 & 6; AWAOGBO v EZE (1995) 1 NWLR (PART 373) 393 were cited in submitting that any document conveying or transferring any title or interest in land that is unregistered is inadmissible for proving title to land. The only value it has, is to be regarded as receipt, for purposes of proving equitable interest only, where the purchaser is in possession.

The Appellant contends that where a claimant relies on receipt of payment, there must be evidence that he was put in possession of the land

in dispute in order to create an equitable interest in land, which the Respondents have failed to do. ADESANYA v OTUEWU (1993) 1 KINGS LAW REPORT PAGE 142 AT 152 (PARAGRAPHS 5 – 10); FOLARIN v DUROJAIYE (1989) 1 NSCC (VOL. 19) PAGE 255 AT 2622 (25 – 50); BIOKU v LIGHT MACHINE (1986) 5 NWLR (PART 39) @ PAGE 56; SHOBAJO v IKOTUN & ANOR (2003) FWLR (PART 12), PAGE 1751 AT 1764.

Appellant further submits that that the only evidence of actual possession of the land in dispute is that of the Appellant who testified at paragraphs 11 – 18 of the Defendant’s written deposition as contained in page 77 of the record.

Arguing issues 3, 4 & 5 together, the Appellant submits that in a claim for declaration of title to land, the claimant shall succeed on the strength of their own case and not on the weaknesses of the defence; BELLO v EWEKA (1981) 1 S. C, PAGE 101; SEISMOGRAPH SERVICES NIG LTD v EYUAFE (1976), 9 – 10 S.C., PAGE 2; OGOLO v OGOLO (2006) ALL FWLR (PART 3130, PAGE 1 @ 13 – 14, (PARAGRAPHS A – H), (RATIO 5); AMAECHI v INEC (2008) ALL FWLR., (PART 407), 1 @ 93, (PARAGRAPHS B – C) (RATIO 33) were relied upon.

Appellant further submits that the position of the law is that facts admitted in pleadings need no further proof. The Respondents admitted in paragraphs 10 & 11 of their statement of claim that title to the land in dispute vested on the Appellant who inherited same from Umuezei family of Asaba, the original ancestral owners of the land in dispute, which means that the Appellant’s root of title to the land in dispute is unchallenged and therefore needs no further proof; BAALO v FRN (2016) LPELR – 40500 (SC) was cited in aid.

It is the contention of the Appellant that the Respondents who claimed that Alphonsus Obi had sold to them before the Appellant refunded the said Alphonsus Obi’s purchase price failed to call the Alphonsus Obi as a vital witness because they are the party to lose if no evidence is adduced at all on any fact or evidence before the Court. GANKON v UGOCHUKWU CHEMICAL IND. LTD (1993) 6 NWLR (PART 297) 55 RATIO 11; ELUFISOYE v ALABETUTU (1968) NMLR PAGE 298. That failure of the Respondents to call Alphonsus Obi and failure to call the parties’ witnesses in Exhibit B is fatal to their case

because it raises a presumption of withholding evidence against them under the provisio to Section 167 (d) of the Evidence Act 2011.
The Appellant further contends that a survey plan is a document used for identification of land only, not for transfer of interest in land, therefore the Respondents’ reliance on the 1992 date in the survey plan attached to Exhibit B to determine the date Alphonsus Obi sold to the 2nd Respondent is misleading as a parcel of land can first be surveyed long before it is sold.

Appellant argues that there are material conflicts and inconsistencies in the evidence adduced by the Respondents, which also remained unexplained or unresolved by the Respondents and where there are material conflicts and inconsistency in the evidence adduced by a party will not be believed and will be held as unreliable. FATOBA v OGUNDAHUNSI (2003) FWLR (PART 139) PAGE 1439; BASIL v FAJEBE (2001 4 S.C (PT. II), PAGE 119.

AYANWALE & ORS v ATANDA & ANOR (1988) 1 S. C PAGE 1; EZEMBA v IBENEME & ANOR (2004), ALL FWLR (PART 223), PAGE 1786 @ 1816 S.C were cited in submitting that the evidence adduced by the Respondents as to the

time of the 2nd Respondent’s purchase of the land in dispute being conflicting and inconsistent is therefore, unreliable.

Counsel argues that the Appellant was unshaken in his evidence both under cross examination and evidence in chief and referred to paragraphs 20 – 30 of the Appellant’s statement and Exhibit D, where the said Alphonsus Obi acknowledged the refund of the purchase money for the land in dispute by the Appellant.

On the Issue of Trespass; the Appellant submits that the Respondents woefully failed to prove their claim for trespass at the lower Court to warrant the grant of their second relief for damages by the lower Court.

SHITTU v EGBEYEMI (SUPRA) AT 1301 (F – G) was cited in submitting that the essential requirement of the claim for trespass is exclusive possession, the Respondents have not been able to bring any evidence that they were in exclusive possession or were put in possession of the land in dispute and thereby failed to prove that they had a better title.

On the issue of Injunction, it is the submission of the Appellant that an injunction is granted where a Plaintiff has been able to prove

a case of trespass against the Defendant, and having submitted that the Respondents failed to prove trespass against the Appellant, having failed to establish possession as required by law. Their claim for injunction ought to fail.

RESPONDENTS’ SUBMISSION
On issue 1, it is the Respondents’ submission that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Reference was made to Section 132 of the Evidence Act, 2011; JINADU & ORS v ESUROMI & ANOR (2005) 14 NWLR (PT. 944) 142 AT 180 – 181, PARAS H – B; CITIZEN INT’L BANK v SCOA (NIG) LTD & ANOR (2006) NWLR (PT. 1011) 332 AT 350 – 351, PARAS G – F.

That the onus is on the Appellant to prove and establish that he has in fact returned the purchase price to the said Mr. Alphonsus Obi for him to be entitled to the judgment that in fact purchase price of the land in question was refunded to the said Mr. Alphonsus Obi and for the Appellant to discharge this onus on him, he has to call in evidence the person who were present at the time and period the said money was refunded and

not merely tendering a purported memorandum of refund of purchase price, Exhibit D was totally discredited at the trial.

Section 136 of the Evidence Act 2011; INEC & ORS v ANTHONY & ORS (2011) 27 WRN 27 AT 79 (RATIO 1); JOLASUN v BAMGBOYE (2011) 16 WRN 1 AT 7 (RATIO 4); OKUBULE v OYAGBOLA (1990) 4 NWLR (PT 14) 723 were further made reference to in submitting that the law is well settled that he who assert the existence of a particular facts has the burden of proving same.

That it behooves on the Appellant to show that he refunded the purchase price to the said Alphonsus before Alphonsus Obi sold this parcel of land to the Respondents, Exhibit D was purportedly made in the year 1997, whereas, Alphonsus Obi has by Exhibit B (i.e deed of conveyance and the survey plan of the land attached thereto) sold this land in question to the Respondents in the year.

Respondents’ counsel contends that the combine reading and/or consideration of the Deed of Conveyance (Exhibit B in evidence) and the survey plan attached to it produced the legal effect that this parcel of land was sold to the Respondents in the year 1992, ORIZU v ANYAEGBUNAM (1978) 5 SC. 1; OLLY v TUNJI (2013) 13 WRN 24 AT 33.

Counsel submits that the Appellant failed to prove his assertion and the issue be resolved in favour of the Respondent.

The Respondents on issue 2 argues that the law is well settled in civil cases, for the Plaintiff (s) to succeed in the case or claim put forward for adjudication and determination he/she must proof his case on the balance of probability that is to say that the evidence led at the trial preponderate on his favour; EYO v ONUOHA & ANOR (2011) 45 WRN 1 AT 7; PURIFICATION TECHNIQUE (NIG) LTD v JUBRIL (2013) 9 WRN 1 AT 8; OJOMO v IJEH (1987) 4 AT 5 WRN 79 AT 84 were cited in aid.

The Respondents further submit that they tendered Exhibit A (Memorandum of Customary grant of the land between the Appellant and Alphonsus Obi) and Exhibit B (Deed of Conveyance between Alphonsus Obi and the 2nd Respondent). That by Exhibit A, the Appellant divested himself of the ownership and title of the land to Alphonsus Obi in the year 1988, and by Exhibit B Alphonsus Obi transferred his title in the said land to the 2nd Respondent, and the 2nd Respondent took immediate possession of the land by commissioning a land

surveyor who surveyed same, planted survey beacon therein and produced survey plan No. LSO 430 dated 8th April, 1992.

It is the contention of the Respondents that the law is settled that possession of land includes demarcation of the land with survey beacons or even with pegs, is stipulated as enough acts of possession. MRS GLADYS ABIADE MAJEKODUNMI & ORS v MUTIU ABINA (2002) 1 SC 92 AT 108 was relied on in submitting that the Respondents by surveying the land and planting survey beacons is deemed to have been in possession of this land in question.

It is the further contention of the Respondents that the Appellant having admitted entering unto this land in possession of the Respondents, destroyed the survey beacons and remove the sign post placed on the land constitute trespass to the land. OGUJIOFOR v AWAKALOR (2011) 34 WRN 135 AT 152 was cited in defining trespass.

That the Appellant was unable to prove his assertion of re-vesting himself with the title in this land, by refunding the purchase price of the land to Mr. Alphonsus Obi in 1997, while the Respondents were able to prove their case and the lower Court rightly adjudged in their favour.

On issue 3, the Respondents submit that it is settled law that a Plaintiff in a case for declaration of title is entitled to his claim if he/she having proved his/her title to the land by production of document of title and evidence of possession of the land is entitled to the relief for declaration of title to the said land; AIYEOLA v PEDRO (2014) 44 WRN 1 AT 46 LINES 20 – 40; IDUNDUN v OKUMAGBA (1976) 1 ALL NLR 200 were cited in aid.

That the Respondents at the trial Court in compliance with the law tendered in evidence Exhibits A and B respectively and has been able to establish possession of the land in question by planting survey beacons on the land has satisfied the requirement of the law, and the trial Court rightly granted them a declaration of title to the land in dispute.

APPELLANT’S REPLY
In reply to Respondents’ issue 1, the Appellant submits that who asserts must prove, it is the law that the onus of proof is not static but vacillates as the case progresses and will rest on the person who will fail if no further evidence were adduced until the issues in the pleadings are resolved.

ELEMA & ORS v PRINCESSS AKENZUA (2000) 6 SC (PART III) PAGES 26 @ 37; Section 135 – 139 of the Evidence Act, 2011. That the Appellant through his oral evidence in Court and Exhibit D has discharged the onus of proof regarding the refund of the purchase price for the land in dispute to Mr. Alphonsus Obi.

The Appellant further submits that having discharged the burden of proof, it shifted to the Respondents. It is the Respondents who will lose if no further evidence is led on the issue. That the trial judge failed to properly evaluate the weight of the evidence before it, and the judgment is against the weight of the evidence. KODILINYE v ODU (1935) 1 S.C PAGE 1; EZEMBA v IBENEME & ANOR (2004) ALL FWLR (PART 223), PAGE 1786 @ 1816 S.C.

The Appellant points out that the Respondents failed to address the issue of substantial/material conflicts raised in paragraphs 4.6 – 4. 10 in the Appellant’s brief regarding the threshold issue of the time of purchase of the land in dispute from Mr. Alphonsus obi by the Respondents and failure to respond to such weighty issue is tantamount to admitting the submissions or point raised therein.

BASIL v FAJEBE (2001) 4 S.C (PT. II) PAGE 119; OKONGWU v NNPC (1989) 4 NWLR (PART 115), PAGE 296 @ 309 were cited in aid.

Appellant urges the Court to hold and deem the failure of the Respondents’ Counsel to reply to the material issue of wrong reliance on the conflicting evidence of the Respondent as conceding to the Appellant on this material point.

RESOLUTION ON THE MERIT OF THE CASE.
The Appellant’s issues would be adopted in resolving this appeal, but the issues feed off each other and would therefore be resolved together.

The bone of contention in this appeal is basically who has proved better title to the land in dispute against the back drop of the oral and documentary evidence before the Court.

The origin of the land is not in dispute (a parcel of land measuring approximately 433.656 sq metres lying and situate at Emenashi street off Onyeobi way, Cable point, Asaba) as the land can be traced back to the Appellant – Mr. John Nwabueze Chukwuma, who supposedly divested interest in the said land to one Mr Alphonsus Obi on 2nd March, 1988 as stated in the Memorandum of Customary Grant (Exhibit A), and from whom the Respondents trace their title in the land to.

However, the Appellant has contended that he revoked this transfer to Mr. Alphonsus Obi by refunding the purchase money, as reflected in Exhibit D (Memorandum for refund of Purchase price to Alphonsus Obi).

The Respondents on the other hand, claim right to the property relying on Exhibit A (Memorandum of Customary Grant), Exhibit B (Deed of Conveyance between Alphonsus Obi and the 2nd Respondent) with survey plan No. LSO 430 dated 8th April, 1992.

Flowing from the above summary of the facts and the submissions of the parties, the Respondents who instigated this suit as the Claimants seeking a declaration of title had the burden of proving ownership to the land in dispute.
In AYEMWENRE v EVBUOMWAN (2019) LPELR – 47213 (CA); this Court held on whom the burden of proof in a claim for declaration of title to land thus;
“Now the law is settled that in an action for declaration of title to land the onus lies on the party claiming the title to satisfy the Court that he is entitled on the evidence brought by him for declaration of the piece of land claimed. In other words, the onus is on the

plaintiff to satisfy the Court that he is entitled on the evidence adduced by him to a declaration of title. See KODILINYE VS. MBANEFO ODU (1935) 2 WACA 336; OLOWOSAGO VS. ADEBANJO & ORS (1988) LPELR 2601 (SC); AWOMUTI VS. SALAMI (1978) 3 SC 105; ODUTOLA VS AILERU (1985) SC 188; ADEGOKE VS ADIBI & ANOR (1992) 5 NWLR (PT. 242) 410; OWHONDA VS EKPECHI (2003) 17 NWLR (PT. 849) 326.”
per OSEJI, JCA (PP. 20 – 21; PARAS. F – C)
See also; OKOYE & ORS v NWANKWO (2014) LPELR – 23172 (SC); ONOVO & ORS v MBA & ORS (2014) LPELR – 23035 (SC); AYORINDE & ORS v SOGUNRO & ORS (2012) LPELR – 7808 (SC); AKUJOBI & ORS v AKUJOBI (2017) LPELR – 41685 (CA).

The Respondents in proof of their case tendered Exhibit A, as proof of the origin of their right over the land in dispute, and to further establish Alphonsus Obi as their predecessor-in-title. Exhibit B, is the deed of conveyance between the Respondents and Mr. Alphonsus Obi, which is unregistered and also dated thus;
“dated ……….day of ………….1977”,
hence it was tendered as a receipt.

law and custom and entered into possession and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bonafide purchaser would not be upheld. See AMAO V ADEBONA (1962) L.L.R 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T.A. ORASANMI V M. O. IDOWU (1959) 4 F.S.C 40. More close to the contention herein is the decision in SOREMEKUN v SHODIPO (1959) L.L.R. 30 to the effect that if land is sold to a party without executing a formal deed of conveyance, his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decision of the privy council in OSHODI v BALOGUN & ORS 4 W.A.CA.

1 at p.6 and SULEIMAN & ORS v JOHNSON 13 W.A.C.A. 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time, the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate…” The above is a clear restatement of the principle. See also REGISTERED TRUSTEES OF MUSLIM MISSION HOSPITAL COMMITTEE v. OLUWOLE ADEAGBO (1992) 2 N.W.L.R. (Part 226) 690 at 706. The emphasis is the payment of the agreed full or part of the purchase price coupled with possession by the purchaser.”
Per TABAI, JSC (PP. 14 – 16, PARAS. F – E).
This honourable Court also held in MAMWAN v ELISHA (2018) LPELR – 46360 (CA);
“The Supreme Court in the case of Zaccala vs. Edoso (2018) 6 NWLR (Pt. 16161) 528 at 532 held that a purchaser of land who has paid and taken possession of the land, by virtue of a registration instrument which has not been registered, has hereby acquired an equitable interest which is as good as a legal estate.”
per HASSAN, JCA (P. 31, PARAS. B – D).

See also; NSIEGBE & ANOR v MGBEMENA & ANOR (2007) LPELR – 2065 (SC); ANYI & ORS v AKANDE & ORS (2017) LPELR – 41973 (CA); IDOWU v AJAYI & ORS (2016) LPELR – 41339 (CA).

The Respondents immediately took possession of the land by commissioning a land surveyor who surveyed the land and he also planted survey beacon therein, as averred to by the 1st Respondent in its Statement of oaths at paragraph 20 in page 12;
“20. The Defendant in furtherance of his adverse claim to this land of the Claimants demolished and or removed the survey beacons of the Claimants on this land and had deposited concrete cement blocks on the said land whereupon the Claimants consulted their solicitor L. C Agbata & Co who wrote a letter to the Defendant but the Defendant persisted in his acts on this land of the Claimants. The Claimants shall found and rely on the said solicitor’s letter to the Defendant at the trial and the Defendant is hereby giving notice to produce the original in the Court.”
Exhibit C, the solicitor’s letter dated 15th December, 2015 at page 41 of the Record.

In OGUEJIOFOR v NWAKALOR (2011) LLPELR – 4591 (CA); this honourable Court held on the nature of possession thus;
“…possession is the key that would open the door to judgment for either of the parties. It gives a party a right against another who cannot show a good title, and may be actual or constructive. Actual possession is – “physical occupancy or control over property”, and constructive possession is – “control or dominion over a property without actual possession or custody of it” – see Black’s Law Dictionary, 8th Ed., and Carrena v. Akinlase (supra)where the Supreme Court held – “A person who has title over a piece of land, though not in de facto physical possession, is deemed, in the eyes of the law, to be the person in possession. This is because the law attaches possession to title and ascribed it to the person who has title. Such a possession is the legal possession which is sometimes also called constructive possession. Conversely, a trespasser, though in actual possession of the land, is regarded in law not to be in any possession since he cannot, by his own wrongful act of trespass, acquire any possession recognized at law. This

gives credence to the principle that where there are rival claimants to possession of a piece of land, the law ascribes possession to the party who has title or better title.” (Highlight mine).
per AUGIE, JCA (PP. 30 – 31, PARAS. D – C).
See also; UDE & ORS v CHIMBO & ORS (1998) LPELR – 3288 (SC); ADAMU v IGWESI (2014) LPELR – 24000 (CA); CRUSHED ROCK INDUSTRIES (NIGERIA) LTD v OKEKE (2014) LPELR – 23510 (CA).

Furthermore, the Respondents contended that a combine reading of the Exhibit B and the survey plan attached to it produced the legal effect that this parcel was sold to the Respondent. I am afraid this principle/ideology cannot hold water, as the cases ofORIZU v ANYAEGBUNAM(SUPRA) and OLLY v TUNJI (SUPRA) do not apply or avail the Respondents in this instant case.
The above cited cases dealt with the weight of a document attached to a document tendered, and it was held that it carries the same weight. See; FOLORUNSHO v FRN (2017) LPELR – 41972 (CA). This doesn’t however transmit the date of the survey plan to the Deed of Conveyance. It is a trite principle of law that a survey plan is

mainly for the purpose of identification of the land in dispute and does not confer title. A survey plan can be made before/after the execution of a deed of transfer, I therefore, do not buy into the notion/principle that the legal effect is that the land in dispute was sold in 1992, the same year that the survey plan was made.

The Appellant on the other hand is hinging his right to the land in dispute on the contention that he refunded the purchase price to Mr. Alphonsus Obi. This is as reflected to Exhibit D, a memorandum of understanding, it is not dated neither does it refer to the earlier document for sale of the land. No witness testified as witnessing the refund.
It is trite that he who assert must prove, not only by tendering a document but must specifically prove the time of sale whether it is before the sale to the 1st Claimant or after.
See AWOSUNLE & ANOR v CHIEF CHRISTIANA FAGBEMI & ANOR(2011) LPELR – 8912 (CA); AMEH JOHN ONUH & ANOR v ANTHONY OGBE (2019) LPELR – 48 361 (CA); OYOVBIARE v OMAMURHOMU(2001) FWLR (68) 1229.

Once it is proved that original ownership of property is in a party, the burden of proving that the property has been divested of the ownership rests on the other party and that it is in respect of the same land. Again, see the case of JOLASUN v BAMIGBOYE (2010) LPELR – 1624 (SC). The Apex Court held that the burden of proving a particular fact lies with the party who substantially asserts the affirmative of the issue See; OSAWARU v EZEIRUKA (1978) 6 – 7 SC 135; OKUBLE v OYAGBOLA (1990) 4 NWLR (147 )723; ODUKWE v OGUNBIYI (1998) 8 NWLR (PT 561) 339 AT 352.
Therefore, the onus falls on the Appellant to prove. See Sections 135, 136, 137 of the Evidence Act, 2011; UNILORIN & ORS v OBAYAN (2018) LPELR – 43910 (SC); KUMO v BARAMBU & ORS (2019) LPELR – 47069 (CA); ESEHA & ANOR v ABOMA (2019) LPELR – 46433 (CA).
The undated document between the Appellant and Mr. Alphonsus Obi falls short of an absolute proof, as the particular time of refund is of essence in this matter, and necessary in proving that Mr. Alphonsus Obi was still vested with rights in the land in dispute or whether the land had already been divested to the Respondents.
The mere oral submissions of the Appellant that Exhibit D was

signed in 1997 or production of Exhibit D is inadequate to prove the precise day and year the refund of the purchase price occurred.
It behoved on the Appellant to go further to call witnesses in proof of his assertion, knowing that E. U Okwuasaba, Esq who prepared the document is said to be late, however he still failed to call Mr Alphonsus Obi or their witnesses as stated in Exhibit D to the stand.
The parties seemed to have glossed over the necessity of calling a vital witness to prove their claim(s).
Furthermore, an undated document has been held to be invalid and has no probative value, see; OGBALION v REG. TRUSTEES C. C. G. G (2011) FWLR (PT. 80) AT 1496; VISINONI v BRAHAMS & ANOR (2015) LPELR – 40405 (CA).
Moreover, drawing from the records, the Defendant testified that he built the kiosk between 1988-1990 not 2007, he had earlier stated that he sold the land to Alphonsus Obi in 1988, therefore he could not have built the kiosk on the land when he was supposed to have divested interest in the land. He changed the date of the refund from 1997 to 1996 when he prepared Exhibit D. The reason for the refund was based on

Exhibits F & G but they are different parcels of land which bear no relevance to the land under dispute, he did not attempt to show the importance of the lands and the disputed one.
In the light of the analysis, Exhibit D seems like an afterthought, which the Appellant hurriedly did in other to preserve his right over the disputed land, however, the Respondents have the unregistered deed of conveyance, coupled with the Memorandum of Customary Grant between the Appellant and their predecessor-in-title.
I am in total agreement with the learned trial Court that the Respondents proved a better title to the land in dispute (a parcel of land measuring approximately 433.56 sq metres lying and situate at Emenashi street off Onyeobi way, Cable point, Asaba).
I resolve these issues against the Appellant.

On the issue of trespass and injunction and whether the Respondents are entitled to the reliefs sought.
It is a settled principle of law that where a Claimant has successfully traced/proved his title to a land, he is entitled to be declared the owner of the land; see the case of CHIEF ADEFIOYE ADEDEJI v J. O. OLOSO & ANOR (2007)

LPELR – 86 (SC); SULE NA’AKA DAMBO v ALH. YALWA WAZIRI & ORS (2014) LPELR – 23983 (CA); OPADARE v. ODEBUNMI (2003) 16 NWLR (PT. 845) P. 46 AT 57.

I find relevant the additional statement of the 1st Claimant in paragraph 2i, ii & iii at pages 88 of the record that the Defendant lives in the premises opposite the disputed land, and has no stakes there, save for the kiosk which is no longer in use and the letter of his solicitor itemised the acts of the defendant on the 1st Claimant’s land to which there was no challenge.

The Respondents/Claimants having proved that the Defendant/Appellant is not in possession of the said land which is distinct from where the Appellant/Defendant lives, is entitled to the reliefs of trespass and injunction to protect and preserve the Claimant’s interest in the land.

I am therefore compelled/swayed to resolve the issues against the Appellant.
The appeal fails in its entirety and is dismissed
The judgment of HON. JUSTICE D. C. MAIDOH of the High Court, Asaba delivered on 8th of June, 2017 is hereby affirmed.
Cost of N200,000 is awarded in favour of the Respondents.

AYOBODE OLUJIMI LOKULO – SODIPE, J.C.A.: I agree

MOHAMMED AMBI – USI DANJUMA, J.C.A.: I have perused before now, the lead judgment in this Appeal just delivered by my Lord, Abimbola Osarugue Obaseki-Adejumo, JCA. and agree that the appeal has no merit and should be dismissed.

I have noted that the Defendant/Appellant herein, at the trial Court sought to fashion a case of entitlement to ownership. However, the Respondent’s unregistered deed of conveyance coupled with the grant to him vide the Memorandum of customary grant between the Appellant’s and the Respondent’s predecessor in title had strengthened the Respondent’s title and to the weakness or debilitating effect on the Appellant’s claim to title.

In Odofin v. Odofin 1982 SC, the Courts are enjoined to put the facts in the evidence of both parties or an imaginary scale of justice to see which side preponderates against or over the other.

The divergence and inconsistent narration of the Defendant/Appellant as relating Exhibit “D” and Exhibit “F” and “G” as aptly analyzed by my Lord Obaseki-Adejumo, JCA, clearly places the Appellant’s case on the weak or lighter side of the pendulum.

I, accordingly also dismiss the appeal and affirm the decision of the trial Court in the like manner and terms relating to costs as made by His Lord Obaseki Adejumo, JCA.

Appearances:

Ikechukwu holding the brief of E. C. Ikenwe For Appellant(s)

I. Agbata (Mrs) For Respondent(s)