DR. DAVID EDEGWARE v. THERESA EDEFA & ANOR
(2018)LCN/12433(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
CA/B/119/2009
RATIO
COURT AND PROCEDURE: DUTY OF THE TRIAL COURT
“The law is now settled that a trial Court has duty to determine and resolve all issues properly put by the parties before it. See Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd.(2000) 5 NWLR (Pt. 656) 322 at 315 and Ogundare Osasona v. Oba Adetoyinbo Ajayi & Ors. (2004) 14 NWLR (Pt. 894) 527.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
LAND LAW : WHETHER A PERSON NEEDS TO BE PHYSICALLY PRESENT TO BE IN POSSESSION OF LAND
“The law is that to be in possession of land, a person need not be physically present on the land. See Nnameke Chukwuogor v. Attorney-General, Cross River State & 2 Ors. (1998) 1 NWLR (Pt. 534) 375 at 409 where Ubaezonu, JCA stated thus: ‘A person need not be physically present in his property to show that he is in possession or occupation of the said property.'” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
LAND LAW: WAYS TO PROVE TITLE TO LAND
“…the law is now settled that there are five recognized ways of proving title to land. The five ways of proving title to land are:
(i) By traditional evidence.
(ii) By production of documents of title.
(iii) By proving acts of ownership, numerous and positive enough to warrant an inference that the person is the true owner.
(iv) By proving acts of long possession and enjoyment of the land.
(v) By proof of possession of connected or adjacent land. See Idundun v. Okumagba (1976) 9 – 10 SC 227; Omorogie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 and Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
LAND LAW: EQUITABBLE INTEREST TO LAND
“The law is settled that ‘where a person pays for land, obtains receipt of payment, followed by his going into possession and remaining in possession, equitable interest is created for him in the land’- per Adekeye, JSC in Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) 10 NWLR (Pt. 1308) 291 at 349 – 350” PER PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
DR. DAVID EDEGWARE
(Carrying on Business under the name and Style of D. SERG. NIGERIA COMPANY) Appellant(s)
AND
1. THERESA EDEFA
2. MR. GOODNEWS EMAMUSI OBIODE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
The 1st respondent was the plaintiff in Suit No. UHG/5/2006 instituted in the High Court of Delta State, holden at Ughelli, where in her amended statement of claim she sought, against the appellant and the 2nd respondent, the following reliefs:
1. A Declaration that the monetary transaction entered into between the plaintiff and the 1st defendant at Ughelli, a place within the jurisdiction of this honourable Court, on or about the 17th day of November, 2004, is a loan transaction and not the outright alienation of the plaintiff’s landed property lying, situate and being at UKRUDE BUSH (LAND), behind the defunct S.D.P. Secretariat, off Ughelli/Patani road, Ughelli, Delta State, and which said landed property is well known to the parties to this suit.
2. A Declaration that the plaintiff is the person entitled to be issued with a certificate of statutory right of occupancy in respect of the landed property of the plaintiff, that is well known to the defendant, described in relief 1 above.
3. A Declaration that the purported alienation of the plaintiff’s landed property described in relief 1 above, by the 1st defendant to anybody and/or the 2nd defendant is illegal, unlawful, wrongful, null and void and/or of no effect whatsoever, in that the 1st defendant has neither legal nor equitable right to alienate the said property, and the said property was not alienated by the 1st defendant pursuant to order of Court of competent jurisdiction, made in furtherance of the loan transaction stated above.
4. N10M (Ten Million Naira) only being enhanced damages for trespass, in that sometime on or about the month of January, 2006, without lawful, legal and/or equitable justification, the defendants by themselves, agents, servants, privies, cronies, surrogates, cohorts and/or persons the 1st defendant purportedly alienated the plaintiff’s landed property stated in relief 1 above to, broke and entered the plaintiff’s land and commenced construction works within the plaintiffs uncompleted building, the subject matter of this suit, that is well known to the parties to this suit.
5. An Order of perpetual injunction restraining the defendants by themselves, agents servants, privies, cronies, surrogates, cohorts and/or persons the 1st defendant purportedly alienated the plaintiff’s landed property described in relief 1 above to, from laying any claim whatsoever to the said land, further trespassing on the said land and/or doing any act adverse to, inimical to, detrimental to and/or contrary to the plaintiff’s equitable and legal rights over the said landed property, the subject matter of this suit.
Pleadings were filed and exchanged among the parties and after taking oral evidence from the parties and their witnesses and also the addresses of learned counsel, the trial Court delivered its judgment on 27/11/2008. The trial Court declared that the 1st respondent ‘is the person entitled to be issued with certificate of statutory right of occupancy in respect of the landed property lying, situate and being at Ukrude bush (land) behind the defunct S.D.P. Secretariat off Ughelli/Patani road Ughelli’ and restrained the 2nd respondent from trespassing on the said land. The Court also awarded costs in favour of the 1st respondent against the appellant and the 2nd respondent.
This appeal is against the said decision and it is anchored on 9 (nine) grounds (pages 176 – 178 of the record of appeal).
In his brief filed on 05/04/2011, the appellant framed five issues for determination:-
1. Whether the trial judge was right, given the state of the pleadings and evidence before him to have refused, failed and/or neglected to reserve and/or pronounced on the alternative issue (to wit a sale transaction) raised in the trial by the parties.
2. Whether the learned trial judge was right when he held that the appellant was not in possession of the disputed land at the time of the dispute.
3. Whether the learned trial judge satisfactorily evaluated the oral and documentary evidence before him in arriving at this judgment.
4. Whether the learned trial judge was right to expunge from the records, Exhibit, D, a document pleaded as a receipt and proceeded to hold that the appellant did not give evidence of how much he bought the land.
5. Whether having regard to the pleadings and the totality of the evidence, 1st respondent is entitled to the reliefs granted by the learned trial judge.
The 1st respondent’s brief was filed on 19/12/2016 and in five issues were formulated as follows:
(1) Whether a Court of law is bound to make pronouncement on all issues raised in a trial.
(2) Whether the learned trial judge was right in expunge Exhibit ?D? from the records of Court.
(3) Whether from the totality of the evidence and materials before the trial Court, the appellant was ever in possession of the land in dispute.
(4) Whether from the totality of the evidence and materials before the Honourable Court, the trial Court was right in granting declaration of title in favour of the 1st respondent.
(5) Whether the learned trial judge properly evaluated the evidence led at the trial Court before making the findings in this case.
The issues distilled by the appellant and the 1st respondent respectively, are basically the same. However, for the determination of this case, I adopt the issues as couched and laid out by the learned counsel for the appellant.
ISSUE NO. 1
Whether the trial judge was right, given the state of the pleadings and evidence before him to have refused, failed and/or neglected to reserve and/or pronounced on the alternative issue (to wit a sale transaction) raised in the trial by the parties.
Learned counsel referred to the addresses of counsel in the lower Court and argued that ‘the issue whether the transaction between the parties was an outright sale or a loan transaction was not only a substantial issue at the trial as revealed in the pleadings and evidence, both learned counsel for the parties underscored same in their addresses’.
The appellant’s counsel contended that once the trial Court had found that the transaction was not a loan transaction, ‘the only alternative is to hold that it is a sale transaction’. Counsel submitted that the main issue in the case was ‘the nature of the transaction entered into between the appellant and the 1st respondent’ and that all other issues were ancillary or subsidiary to it.
Relying on the case of Onyenweuzor v. Opusunju (2002) 6 NWLR (Pt. 762) 72 at 81 – 82, among others, learned counsel for the appellant submitted that the trial Court had a duty to consider all issues properly raised and canvassed before it and make findings thereon.
The learned counsel for the appellant referred to several portions of the judgment of the trial Court and asked: Why did the learned trial judge fail to pronounce on the crucial issue of alienation of the land? Counsel contended that the trial Court should have found that the transaction between the parties is a contract of sale and not a loan.
On behalf of the 1st respondent, learned counsel relied on the case ofAdebayo v. Attorney-General, Ogun State (2008) All FWLR (Pt. 412) 1195 at 1206, per Muhammad, JSC and contended that ‘a Court is bound to consider and make pronouncement on issue raised by parties in a suit, except the issue is subsumed in another issue’. Learned counsel argued that ‘the issue of sale transaction raised in the trial was subsumed under issue three (3) raised by the appellant’s counsel…whether or not the plaintiff is entitled to the reliefs claimed in paragraph 16 of the Amended Statement of claim’.
Counsel argued that the trial Court’s ‘findings on the above issue is tantamount to pronouncement on the issue of sale transaction’.
After reproducing some of the findings of the trial Court, learned counsel submitted that ‘it is clear as crystal that the issue of sale transaction raised was pronounced upon by the trial Court’.
In the alternative, counsel argued that assuming without conceding that the trial Court did not pronounce on the issue of sale transaction, ‘the failure of the Court to directly make pronouncement on the issue of sale transaction is roundly of no movement on the basis that it did not occasioned (sic) miscarriage of justice’. In support of this argument, learned counsel cited and relied on the case of Ojoh v. Kamalu (2006) All FWLR (Pt. 297) 978 at 1002, per Onu, JSC.
The trial Court, in its judgment, summarized the facts of this case, on pages 158 ? 159 of the record of appeal, as follows:
The plaintiff’s case is that on or about 17/11/2004 she went to the 1st defendant in the company of the P.W.1 (Odhe Humphrey) and the P.W.2 (Oke Igbon) for the 1st defendant a money lender to lend her the sum of N400,000 (Four Hundred thousand Naira). There was a loan agreement which was retained by the 1st defendant after being executed by the parties and their witnesses, plaintiff later paid a total sum of N480,000 (Four Hundred and Eighty Thousand Naira) to the 1st defendant who however refused to return the title documents of the plaintiff in respect of the land in dispute which the plaintiff had deposited with the 1st defendant as security for the loan. The reason for not handing over the documents back to the plaintiff was that the 1st defendant claimed the plaintiff was still indebted to him from the said loan agreement.
In January 2006, when plaintiff visited her landed property aforesaid, she found some persons damaging and carrying out some reconstruction work on the building. Plaintiff did not sell her landed property to the persons she saw on site and consequently lodged a report to the police and commenced this action. During cross examination of the P.W.2 with leave of Court the witness was made to sign his signature three times on a piece of paper which was admitted as Exhibit ‘A’. Plaintiff tendered the receipt with which she paid for the landed property in dispute in this case as Exhibit ‘B’.
Plaintiff bought the land from the Akporoba family and further tendered the agreement evidencing the transaction as Exhibit ‘B1’. Three building plans Exhibits ‘C’, ‘C1’ and ‘C2’ were also tendered by the plaintiff. During the cross examination of plaintiff by counsel to 1st defendant a document purporting to be a document signed by the plaintiff (which she denied) evidencing an out right sale of the land in dispute to 1st defendant was admitted as Exhibit ‘D’.
The case for the 1st defendant is that the plaintiff never borrowed money from him in the year 2004 and consequently there was never any loan agreement between him and the plaintiff. 1st defendant identified Exhibit ‘D’ as the document representing his transaction with the plaintiff. The P.W.2 was identified as one of the signatories on Exhibit ‘D’.
The 1st defendant identified Exhibits ‘B1’, ‘C’, ‘C1’ and ‘C2’ as documents handed over to him by the plaintiff after he had paid for the land. 1st defendant tendered an affidavit Exhibit ‘E’ as that deposed to by the plaintiff showing she sold her land to him, D.W.1 (Victor Enivwenaye Odiete) a legal practitioner testified he prepared Exhibits ‘D’ between the plaintiff and 1st defendant and both executed the said document. D.W.2 (Austin Ohwoforia) testified he signed Exhibit ‘D’ as a witness to the 1st defendant.
The 1st defendant sold the land he bought from the plaintiff to 2nd defendant.
2nd defendant’s case is that in December 2005, he bought the land in question together with an uncompleted building from the 1st defendant for the sum of N1,300,000 (One Million, Three Hundred Thousand Naira). He testified the transaction was documented and that 1st defendant also gave him the approved building plan Exhibits ‘C’ ‘C1’ and ‘C2’ together with the Deed of Conveyance between plaintiff and the 1st defendant and the conveyance between the plaintiff and the Akporoba family. When 2nd defendant bought the land there was an uncompleted building on the land. 2nd defendant was putting ‘finishing touche’ to the uncompleted building he found on the land when plaintiff obstructed his workers.
From the facts of the case, one of the salient issues which obviously called for determination by the trial Court was whether the transaction between the appellant and the 1st respondent was a loan transaction or transaction of sale of land by the 1st respondent to the appellant. It also on record that the learned counsel for the appellant raised this issue in the trial Court by stating as follows:
‘…the main issue for construction in this case is whether the first transaction between plaintiff and 1st defendant is a money lending transaction or an outright sale of the land described in Exhibit ?D? by the plaintiff to 1st defendant.’
(See page 146 of the record of appeal).
The same issue was raised by the learned counsel for the 1st respondent but couched thus:
‘What was the nature of the transaction entered into between the plaintiff and 1st defendant was it a money lender’s transaction or an outright sale of plaintiff’s landed property the subject matter of the Suit vide Exhibit ‘D’.’
(See page 148 of the record of appeal).
This issue was a live issue before the trial Court and that Court having found and held that there was no satisfactory evidence to prove that there was ‘a loan transaction between the plaintiff and the 1st defendant’, it was incumbent upon the trial Court to determine and make a pronouncement on whether the transaction between the parties (1st respondent and the appellant) was a sale of land transaction.
The law is now settled that a trial Court has duty to determine and resolve all issues properly put by the parties before it. See Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd.(2000) 5 NWLR (Pt. 656) 322 at 315 and Ogundare Osasona v. Oba Adetoyinbo Ajayi & Ors. (2004) 14 NWLR (Pt. 894) 527.
I hereby resolve Issue 1 in favour of the appellant against the respondent.
Whether the failure to pronounce on the question of whether the transaction was one of a sale of land occasioned a miscarriage of justice will be attended to later in this judgment.
ISSUE NO. 2
Whether the learned trial judge was right when he held that the appellant was not in possession of the disputed land at the time of the dispute.
Learned counsel for the appellant referred to the evidence of PW1, PW2, the appellant, DW1 and DW2 of various pages of the record of appeal and argued that it was a serious misdirection, which occasioned grave injustice for the trial Court to have found that the appellant did not prove any act of possession. He submitted that ‘a person need not be physically present or be in his land to show that he is in possession or occupation of the……property’. To buttress this argument, learned counsel referred the Court to the cases of Chukwuogor v. A.G; Cross River State & Ors. (1998) 1 NWLR (Pt. 534) 375 at 409 and Ozakpo v. Paul (1990) 2 NWLR (Pt. 133) 494 at 578, and also Sasegbon’s Laws of Nigeria, First Edition Vol. 14, page 657, para. 1302.
Counsel then stated as follows:
‘From the foregoing all the positive activities of the appellant referred to in the evidence of the witnesses as shown above to wit:-
(a) Collection of the title documents from the 1st respondent.
(b) Preparation and execution of document of sale between the appellant and 1st respondent.
(c) The selling of the land to a 3rd party and the putting of the 3rd party into possession.
(d) The entry of the land by the 3rd party and the completion of a building project on same, amount to sufficient acts of possession.’
The 1st respondent however referred to the case of Olubodun v. Lawal (2008) All FWLR (Pt. 434) 1468 at 1526 on the meaning of ?possession? and after relying on the case of Adawon v. Asogba (2008) All FWLR (Pt. 420) 742 at 760, argued that possession must be exclusive before the law can protect it.
Counsel submitted that there was no evidence that the appellant was in physical possession of the land in dispute through a third party’.
Under Issue 1, I opined that the transaction between the 1st respondent and the appellant was a sale of land transaction. By virtue of the said transaction the 1st respondent is deemed to have released the land in dispute to the appellant who is deemed to be in possession of the land from the date of the release. See Emmanuel Ozokpo v. Justina Paul (1990) 2 NWLR (Pt. 133) 494 at 518 per Omosun, JCA where this Court stated as follows:
‘On the evidence led, the appellant could not be liable in trespass. He is deemed to be in possession when the house was released to him on 25th June, 1973.’
The law is that to be in possession of land, a person need not be physically present on the land. See Nnameke Chukwuogor v. Attorney-General, Cross River State & 2 Ors. (1998) 1 NWLR (Pt. 534) 375 at 409 where Ubaezonu, JCA stated thus:
‘A person need not be physically present in his property to show that he is in possession or occupation of the said property.’
The appellant, in this case was not only deemed to be in possession of the land but was physically in possession of the disputed land through the 2nd respondent.
For the above reasons, I hereby resolve Issue 2 in favour of the appellant.
ISSUES NO. 4, 3 AND 5
4. Whether the learned trial judge was right to expunge from the records, Exhibit, D, a document pleaded as a receipt and proceeded to hold that the appellant did not give evidence of how much he bought the land.
3. Whether the learned trial judge satisfactorily evaluated the oral and documentary evidence before him in arriving at this judgment.
5. Whether having regard to the pleadings and the totality of the evidence, 1st respondent is entitled to the reliefs granted by the learned trial judge.
It was contended that the trial was wrong when it expunge Exhibit ‘D’ from its records and to have held that the appellant did not give evidence of how he bought the land. Learned counsel relied on the cases of Adesanya v. Aderonmu (2000) 6 SC (Pt. II) 18 and Enejo v. Sanusi (2008) All FWLR (Pt. 412) 1084 and argued that an unregistered document cannot transfer title to land but it can be admitted in evidence as receipt of money transaction and it can confer equitable interest.
Learned counsel stated that Exhibit ‘E’ disclose that the land was bought for N1,200,000.00 and that if Exhibit ?D? had not been wrongly expunged, the Court would have come to the conclusion that the 1st respondent received the sum of N1,200,000.00 from the appellant as consideration for the sale of the land in dispute.
After referring to the evidence before the trial Court, learned counsel submitted that the trial Court failed to ‘satisfactorily’ evaluate the evidence before it.
Counsel contended that, in its evaluation of evidence, a trial Court ought to evaluate the totality of the evidence led. To support this argument, learned counsel referred the Court to the cases of Iliya Akwail Lagga v. Audu Yusuf Sarhuna (2008) 6 ? 7 SC (Pt. 1) 101 and Bassil v. Fajebe (2001) 11 NWLR (Pt. 725) 592.
It was submitted, relying on the cases of Iliya Akwail Lagga v. Audu Yusuf Sarhuna (supra) and Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142, that this Court can in some circumstances interfere with the findings of a trial Court and this Court can do so in this case, that is to ?evaluate the totality of the evidence led and make the necessary findings of fact?.
On whether the 1st respondent was entitled to the reliefs granted by the trial Court, learned counsel said that there are five ways of proving ownership of land. On these five ways of proving ownership of land, learned counsel referred the Court to the cases of Idundun v. Okumagba (1976) 9 – 10 SC 227; Anie v. Ugagba (1995) 6 NWLR (Pt. 401) 425 and Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 5111.
On the authorities of Akinola v. Oluwo (1962) 1 All NLR 24 and Okoroafor v. Abaworonini (1996) 2 NWLR (Pt.1430) 278, the appellant submitted that in a claim for declaration of title to land, the plaintiff must succeed on the strength of his case and not on the weakness of the case of the defence.
Counsel contended that the 1st respondent did not prove her entitlement to reliefs granted by the trial Court.
Countering the appellant’s arguments, learned counsel for the 1st respondent contended that the appellant pleaded Exhibit ‘D’ as an acknowledgment of receipt of payment without more and that no evidence was adduced to show that it was tendered as a receipt evidencing any land transaction between the appellant and the 1st respondent at the trial Court. Counsel referred to Airhiavbere v. Oshiomhole (2013) Vol. 215 LRCN 51 and submitted that ‘pleadings are not evidence’.
The learned counsel also relied on Section 16 of the Land Instrument Law of Bendel State, applicable to Delta State and the case of Ibrahim v. Osunde (2003) FWLR (Pt. 143) 65 and argued that Exhibit ‘D’ was rightly expunged as it “was put in evidence at the trial Court as evidence of land transact (sic) between the 1st respondent and the appellant and not as a receipt of payment.”
The appellant pleaded in paragraphs 5 and 6 of his statement of defence (pages 118 – 119 of the record of appeal) as follows:
5. Further to paragraph 7 above, the defendant avers that he is not in possession of any title document relating to any loan transaction with the plaintiff or any other person save that plaintiff gave and handed over to the defendant a deed of assignment she executed with the Akporoba family of Ughelli dated 31/1/01 including an approved survey and building plan as evidence of the sale of plaintiff?s property which is the subject matter of this suit to the defendant.
6. Further to paragraph 5 above, the 1st defendant avers that consequent upon the sale of plaintiff’s property to the defendant, a deed of conveyance was executed on 17/11/04. The 1st defendant shall rely on the said deed of conveyance which is unregistered as an acknowledgement of payment at the trial of this Court.
On page 171 of the record of appeal, the trial Court stated, inter alia, as follows:
“I have gone through Exhibit ‘D’ and it purports to transfer the plaintiffs’ interest in land to the 1st defendant. The document Exhibit ‘D’ is therefore a registrable instrument which ought to be registered and since it was not registered it ought not to be admitted at this trial and it is hereby expunged from the records.”
Since the appellant plead Exhibit ‘D’ as evidence of acknowledgement of payment, that is as a receipt, the trial Court was wrong to have expunged it on the basis that the document was put in evidence ‘for land transaction’ and not ‘as a receipt for the payment of money’.
Without wasting time, the trial Court ought to use Exhibit ‘D’ for the purpose which it was pleaded and it ought not to have expunged on the ground that it was a registrable instrument and it was not duly pleaded. By his pleadings, the appellant made it very clear that he did not register Exhibit ‘D’ but merely or only pleaded as acknowledgement of payment.
I hereby resolve Issue 4 in favour of the appellant and against the 1st respondent.
Under Issue 1, I held that the trial Court wrongly failed to determine a very live issue by not making a pronouncement on whether the transaction between the 1st respondent and the appellant was a sole of land/property transaction, having earlier held that there was no proof that it was a loan transaction. I have also held under Issue 4 that the trial Court wrongly expunged a vital document – Exhibit ‘D’ pleaded by the appellant as “an acknowledgement of payment.”
By the resolution of Issues 1 and 4 in favour of the appellant, it is obvious that the trial Court failed to properly evaluate the evidence before it. Therefore, Issue 3 is hereby resolved in favour of the appellant.
In respect of Issue 5, the law is now settled that there are five recognized ways of proving title to land. The five ways of proving title to land are:
(i) By traditional evidence.
(ii) By production of documents of title.
(iii) By proving acts of ownership, numerous and positive enough to warrant an inference that the person is the true owner.
(iv) By proving acts of long possession and enjoyment of the land.
(v) By proof of possession of connected or adjacent land. See Idundun v. Okumagba (1976) 9 – 10 SC 227; Omorogie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 and Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242.
In this case, there is uncontroverted evidence that the land in dispute belonged to Akporoba Family of Otovwodo-Ughelli in Ughelli North Local Government Area of Delta State which family assigned its interests therein to the 1st respondent in 2001. The deed of assignment between the representatives of Akporoba Family of Otovwodo-Ughelli and the 1st respondent were put in evidence as Exhibit ‘B1’. The land receipt issued to the 1st respondent was admitted as Exhibit ‘B’.
The 1st respondent proceeded to obtain approved building plans in 2003 and these plans were admitted in evidence as Exhibits ‘C’, ‘C1’ and ‘C2’.
The appellant claimed that he bought the land in dispute from the 1st respondent and the 1st respondent duly deposited Exhibits ‘B1’, ‘C’, ‘C1’ and ‘C2’, among other documents with him in furtherance of the alleged sale transaction.
In its judgment, the trial Court held that the appellant ought to have counterclaimed for specific performance among other suggested reliefs. I do not agree with the view of the trial Court that the failure by the appellant to counterclaim was fatal to his defence. This is because in a case for declaration of title to land, as in the instant case, the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s defence. See Kodilinye v. Odu 2 WACA 336 and O.K.O. Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393.
In this case, the 1st respondent tried, without success, to convince the trial Court that she deposited her vital documents – Exhibits ‘B1’. ‘C’, ‘C1’ and ‘C2’ with the appellant because of a loan transaction. The trial Court, however, found that there was no evidence of a loan transaction between the 1st respondent and the appellant. This finding was not appealed against by the 1st respondent and she is deemed to have accepted this finding as true and correct. See Madam Adunola Adejumo & Ors. v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252 and Wike Ezenkwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside & Ors. (2016) 1 NWLR (Pt. 1492) 71.
Since the trial Court found, and the 1st respondent accepted, that there was no loan transaction between the 1st respondent and the appellant, the trial Court was left with no other option than to accept the defence of the appellant that the transaction between the 1st respondent and him was a sale of land transaction. This option was inevitable in view of the preponderance of documentary evidence, including the fact that the 1st respondent voluntarily deposited Exhibits ‘B?, ‘B1’, ‘C’, ‘C1’ and ‘C2’ with the appellant and proceeded to swear to an implicating affidavit – Exhibit ‘E’.
The totality of evidence adduced by the 1st respondent and the appellant, when juxtaposed and having regard to the unchallenged findings of the trial Court, conclusively showed that there was a sale of land transaction between the 1st respondent and the appellant by reason of which the appellant’s equitable interest in the land in dispute was established.
The law is settled that ‘where a person pays for land, obtains receipt of payment, followed by his going into possession and remaining in possession, equitable interest is created for him in the land’- per Adekeye, JSC in Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) 10 NWLR (Pt. 1308) 291 at 349 – 350.
In this case, the evidence on record, especially the documentary evidence tendered by the appellant either by himself or through his witnesses, the 1st respondent and the 1st respondent’s witnesses shows clearly that the appellant paid N1,200,000.00 for the land, he obtained receipt of payment (exhibits ‘D’ and ‘E’) and was in possession of the land – even by the 2nd respondent. Equitable interest in the land was created in favour of the appellant and the 1st respondent led no evidence to displace the appellant’s interest in the land in dispute.
The law is settled that it is the primary responsibility of a trial Court to evaluate and ascribed probative value to evidence before, where the trial Court fails in its duty, an appellate Court can perform this duty, especially where the evidence is mainly documentary and the credibility of the witnesses who testified in the trial Court is not substantially in issue, as in this case.
For the above reasons, I also resolve Issues 2 and 5 in favour of the appellant and against the 1st respondent.
CONCLUSION
Having resolved all the issues in this appeal in favour of the appellant, I find the appeal to be meritorious. This appeal, therefore succeeds and it is hereby allowed.
The judgment of the trial Court delivered on 27/11/2008 in Suit No. UHG/5/2006 between THERESA EDEFA V. DR. DAVID EDEGWARE & ANOR. is hereby set aside. The 1st respondent?s claims in the said suit are hereby dismissed.
The sum of N50,000.00 (Fifty Thousand Naira only) is hereby awarded as costs in favour of the appellant against the 1st respondent.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading before now the judgment delivered by my learned brother M.A.A. ADUMEIN, JCA. My Lord has dealt with all the issues canvassed by both parties in this appeal. I align myself with the reasoning and conclusion reached therein.
Having resolved all the issues in this appeal in favour of the Appellant, it is also my ardent view that the appeal is meritorious and is hereby allowed. The judgment of the trial Court delivered on 27th day of November, 2008 in Suit No. UHG/5/2006 between THERESA EDEFA v. DR. DAVID EDEGWARE & ANOR is hereby set aside.
The 1st Respondent’s claims in the said suit are hereby dismissed
I abide by the order as to costs in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I agree with the lead judgment just delivered by my brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.
I adopt the reasoning and conclusion therein as mine. I concur that the appeal is meritorious and should be allowed.
I abide by the consequential orders contained in the lead judgment including the order for cost in favour of the Appellant.
Appearances:
Chief V. E. Otomiewo with him, D.O. Jarikre, Esq.For Appellant(s)
No legal representationFor Respondent(s)
