DR SYLVANUS OBICHERE AMAECHI & ANOR. V. MACARTHEIN IBEAWUCHI AMAECHI
(2013)LCN/5834(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of January, 2013
CA/OW/231/2010
RATIO
LAND LAW: BURDEN OF PROOF IN LAND MATTERS
It is the law that however, when both parties relied on title as their primary right to be on the land in dispute and both are in possession, then once the plaintiff has shown evidence which on its own should entitle him to possession of the land and a right to a declaration thereto, the defendant must necessarily bear a burden to show that he has a better title to support his right to possession. See the case of: Ofozo Onyido vs. Goddy Ajemba (1991) 4 NWLR Part 184 203, 227 para. F – G. Also, Ume Jiako vs. Ezenamuo (1990) 1 NWLR Pt. 126 253.The 1st defendant has not shown better title to support his right to be in possession of No. 8 New Market Lane, Owerri.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND
Second, there are five recognized ways of proving the ownership of land. These are by traditional evidence, production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time, by acts of long possession and enjoyment of the land, by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. The law is that the establishment of one of the five ways is sufficient proof of ownership.
See: Idundun vs. Okumagba (1976) 9 – 10 SC 337. Ndukuba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432, Adesanya vs. Aderounmu (2000) 6 SC (Pt. 11) 18 , Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31 at 34 SC.
In this respect, it is important to emphasis that a plaintiff seeking to establish ownership of land may be content by using only one of the five ways of proving ownership, as a single means of proof would suffice. But there is nothing under the rule in Idundun vs. Okumagba (supra) stopping a party from combining two or more of the methods of proof provided that his pleadings cover the various ways of proof. PER MOJEED ADEKUNLE OWOADE, J.C.A.
LAND LAW: WHO DOES THE LAW ASCRIBE POSSESSION OF LAND TO WHERE TWO PERSONS CLAIM POSSESSION OF LAND
where two persons claim to be in possession of a piece of land at the same time, the law ascribed possession to one with better title – Awoyoolu vs. Aro (2006) 4 NWLR (Pt. 971) 481 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WORDS AND PHRASES: MEANING OF RESULTING TRUST
Now, the 6th Edition of the Black’s Law Dictionary at page 1523 defines resulting trust as “one that arises by implication of law, or by operation and construction of equity, and which is established and consonant to the presumed intention of parties as gathered from the nature of the transaction. It arises where the legal estate in a property is disposed, conveyed or transferred but the intent appears or is inferred from the terms of the disposition. PER MOJEED ADEKUNLE OWOADE, J.C.A.
LAND LAW: WHETHER A TRESPASSER IS LIABLE TO DAMAGES
It is a settled principle of law that once an act of trespass is established, the trespasser is liable to damages.
See. Okurinmeta vs. Agitan (2002) 2 NWLR (Pt. 752) 565. PER MOJEED ADEKUNLE OWOADE, J.C.A.
LAND LAW: WHAT CONSTITUTES TRESPASS TO LAND
This is because trespass to land is the wrongful invasion of the private property of another. It is trespass to land provided the entry into the land of another person is not authorized. Trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed.
See: Ndukuba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432, Okoko vs. Dakolo (2007) 14 NWLR (Pt. 1000) 401, Yusuf vs. Keinsi (2005) 13 NWLR (Pt.943) 554, Oyadeji vs. Adenle (1993) 9 NWLR (Pt.316) 224. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED A OWOADE Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1 DR SYLVANUS OBICHERE AMAECHI
2. NKECHI UGOCHUKWU EZENWERE Appellant(s)
AND
MACARTHEIN IBEAWUCHI AMAECHI Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A., (Delivering the Leading Judgment): This is an appeal from the judgment of C.I. Ohakwe J. delivered on 9th June 2008 at the Imo State High Court sitting at Owerri.
On 27/7/2001, the Respondent as Plaintiff issued a writ of summons against the Appellants as defendants and claimed as follows:
1. A declaration that the plaintiff is entitled to the grant of statutory right of occupancy to that piece or parcel of land known as and called Plot 8 situate and lying along New Market Lane, New Owerri in the Owerri Municipal Local Government Council within jurisdiction.
2. A declaration that the defendants forcible entry upon the plaintiff’s Plot 8 Land and demarcated the same with block wall with a view of taking the same by force is illegal, unlawful and is in breach of plaintiff’s right to acquire and own immovable property.
3. A declaration that the burial of plaintiff’s deceased sister late Comfort Nnoruo Okeke (nee Amaechi) by the defendants with force on the plaintiff’s Plot 8 Land without his consent and approval is illegal, unlawful and amounts to breach of the native law and custom of Ezeogba Emekuku, public order public morality and plaintiff’s right to private and family life.
4. A declaration that the said burial of plaintiff’s sister on his said Plot 8 Land if allowed to remain permanent is not only unjustifiable but will occasion serious economic loss should the plaintiff wish to donate the said Plot 8 to another for consideration.
5. An order of court for immediate exhumation of the deceased body forcibly buried on plaintiff’s said Plot 8 Land for reburial on the Amaechi family land at Ezeogba, Emekuku, Owerri North.
6. An order of court restraining the children of the deceased Comfort Nnoruo Okeke (nee Amaechi) from continuing to occupy the one room boys quarters at Plot 8 New Market Lane, which the plaintiff allowed her to occupy when alive.
7. N10 million (Ten Million Naira) being special and General Damages for trespass to and for the defacement of the said Plot 8 by the defendants.
8. Perpetual Injunction restraining the defendants by themselves, their servants, agents workmen and privies from further trespass unto the said Plot 8 Land.
Pleadings were filed and exchanged. The relevant pleadings on which the case was tried were:
1. Plaintiff’s Amended Statement of Claim dated 27/7/2004 and filed on 28/7/2004.
2. Amended Statement of Defence of the 1st – 3rd defendants dated 10/8/2004 and filed on 18/10/2004.
It is the Respondent’s case in summary that he is the owner in possession of the plot or parcel of land known as Plot 8 New Market Lane, Owerri comprising two separate parcels of land sharing common boundary which he separately bought from two different people namely: Nwosu Mezu of Umuodu Owerri in 1972 and the other from Thomas Oguoma in 1974 and caused the two pieces of land to be surveyed together. That after obtaining an approved building plan in 1983 from the Owerri Capital Development Authority he erected a 4 room boys quarters and shades therein in 1984 fenced it with wall fence and a gate. The he let in tenants into the boy’s quarters and the shades. That the 1st Appellant has’ been making unsuccessful efforts all over the years to take this land from him by force. To achieve his aim, the 1st Appellant used the occasion of their sister’s death to either confiscate the said respondent’s property or to render it economically useless.
That when Comfort Nnoruo Okeke died, the Appellants forcibly buried her body on the said Plot 8 Land of the respondent with the help of the police without the consent of the respondent. That while the respondent and his wife were in police custody at the instance of the 1st Appellant, the 1st Appellant forcefully erected a wall fence in the middle of the respondent’s said land to prevent the respondent and his tenants from gaining entry into the respondents said property.
On the other hand, it is the Appellants case, that the respondent is not the lawful owner of the property known as Plot 8 New Market Lane, Owerri. That the 1st Appellant sent money to the respondent to buy the said property for him and on his behalf while the 1st Appellant was abroad. That while buying the land the respondent made it clear that he was buying the land on behalf of the 1st Appellant. That, upon the return of the 1st Appellant from Overseas the respondent handed over to him the survey plan of the land with which he designed the building to be erected on the land. That, any document of title in favour of the respondent in respect of the said Plot 8 New Market Lane Owerri was fraudulently obtained. That the 1st Appellant is the respondent’s junior brother of full blood. That Comfort Okeke the mother of the 3rd Appellant bought the piece of land measuring 60 feet X 60 feet in 1971 from Thomas Oguoma for the 1st Appellant and she caused it to be surveyed in Plan No. IM/GA/1923/72 in favour of Mrs. C. Okeke. That the four room boy’s quarters on Plot 8 New Market Lane Owerri was built by the 1st Appellant for their sister Comfort Nnoruo Okeke and her children to live in.
That the respondent intimidated their said sister into vacating three of the four rooms boy’s quarters for him. That the respondent had sour relationship with their late sister. And, that, the burial of Comfort Okeke on the said Plot 8 New Market Lane was a legal act as she was buried on her parcel of land which she bought from Thomas Oguoma.
The original plaintiff in the suit at the court below Augustine Eto Amaechi died in course of proceedings and was substituted with the present plaintiff/respondent on record.
The plaintiff/respondent testified for himself and called one witness while five witnesses testified for the defendant/appellants.
At the end of the trial, the learned trial Judge identified three (3) issues for determination:
“1. Whether the plaintiff (respondent) has discharged the onus of proof that he is entitled to the grant of statutory right of occupancy over the property i.e. Plot 8 New Market Lane, Owerri.
2. Whether a case of measuring or implied Trust has been made out in favour of the 1st defendant
3. Whether the burial of the body of late Comfort Okeke on the said Plot 8 New Market Lane, Owerri was unlawful in the circumstances of this case.
In a considered judgment contained at pages 155 – 172of the record, the learned trial Judge decided each of the three issues against the appellants and found in favour of the respondent.
On the first issue as to whether the respondent was entitled to a Statutory Right of Occupancy, the learned trial Judge held at page 166 of the record after discrediting the Appellants witnesses as follows:
“On the other hand, the plaintiff tendered Exhibit “A” which shows Nwosu Mezu conveyed the land to him and not as acting for or as agent of the 1st defendant. He went further to cause the land to be surveyed in his name. See exhibit ‘B’. He tendered Exhibit ‘G’ to show he purchased another plot of land from Thomas Oguoma. The plaintiff said he merged the two portions of land and caused them to be surveyed together as shown in exhibit ‘H’. Nobody challenged him or disputed it. He said the two portions of land make up Plot No. 8 New Market Lane Owerri
The plaintiff has clearly identified the area of the land known as Plot No. 8 New Market Lane, Owerri”.The 1st defendant has not shown the exact area of land he is claiming at No. 8 New Market Lane Owerri. The evidence of the PW1 and PW2 are credible and convincing and I prefer and believe their evidence to that of DW1 to DW5.”
Still on page 166, the learned trial Judge continued and concluded the question of the ownership of the land in dispute as follows:
“In further consideration of this matter, the plaintiff has in his evidence and by Exhibits ‘A’ ‘B’, ‘C’ ‘D’ and ‘E’ to E24, ‘G’ ‘J’ ‘K’ clearly and convincingly shown that he is the owner in possession of Plot No. 8 New Market Lane Owerri.
He has proved better title to the land in dispute as against the 1st defendant who has nothing to show he is the owner. The 1st defendant stated that he is in possession of No. 8 New Market Lane Owerri. It is the law that however, when both parties relied on title as their primary right to be on the land in dispute and both are in possession, then once the plaintiff has shown evidence which on its own should entitle him to possession of the land and a right to a declaration thereto, the defendant must necessarily bear a burden to show that he has a better title to support his right to possession. See the case of: Ofozo Onyido vs. Goddy Ajemba (1991) 4 NWLR Part 184 203, 227 para. F – G. Also, Ume Jiako vs. Ezenamuo (1990) 1 NWLR Pt. 126 253.The 1st defendant has not shown better title to support his right to be in possession of No. 8 New Market Lane, Owerri.”
On the question whether a case of resulting or implied trust has been made in favour of the 1st defendant/appellant, the learned trial Judge held, first, at pages 167 – 168 that:
“In this case the PW1 stated in evidence that he bought the lands in Exhibit ‘A’ and ‘G’ that make up Plot No. 8 New Market Lane Owerri for himself and that the 1st defendant never sent him any money to buy the land. The evidence of the PW1 was that he never intended to buy the land for the 1st defendant who according to him did not send any money to him for the purchase of the land. This distinguishes the case of Ukatta vs. Emembuo (supra) from the instant case. In the case of Ukatta, the intention of the defendant to assign to the plaintiff the lease of the land after obtaining an assignment of it from the crown lease was established by an agreement to that effect in writing. In this case, there is no credible evidence showing that the plaintiff bought the land with the money provided by the 1st defendant to purchase the land for him.”
Second, at page 168 that:
“The 1st defendant has failed to prove that the PW1 intended to and in fact bought Plot 8 New Market Lane for him and that he paid the purchase price of the land in dispute. Furthermore, there is no memorandum in writing showing remittance of money by the 1st defendant to the plaintiff for purchase of land for the 1st defendant. Exhibit PP1 and ‘N’ do not constitute such memorandum showing remittance of money. The PW1 stated that the Tipper Lorry was not given to him and he did not use the proceeds of the Lorry as it was not his. That the 1st defendant sold the tipper Lorry when he returned to Nigeria. This evidence was not rebutted. It has also not been established that the PW1 sold the Tipper lorry and used the proceeds to purchase land for the 1st defendant.”
Thirdly, or the 2nd issue before the lower court on the creation of implied Trust, the learned trial Judge held at page 169 of the record that:
“Finally, the defendants have failed to prove that the land in dispute was purchased with the 1st defendant’s money and that the PW1 purchased the said Plot No. 8 New Market Lane for the 1st defendant- The claim of resulting trust of the land in dispute in favour of the 1st defendant has been rebutted by the plaintiff. The plaintiff has proved better title to the land in dispute to be entitled to the grant of right of occupancy over Plot No. 8 New Market Lane Owerri.”
At page 170, the learned trial Judge failed to accede to the plaintiff’s/respondent’s claim of unlawful burial of Comfort Nnoruo Okeke by the defendant’s/appellants on the land in dispute but held that the said act of the Appellants constituted trespass simpliciter. Listen to the learned trial Judge.
“The plaintiff in this action prayed among other things a declaration that the burial of Comfort Nnoruo Okeke by the defendant on the said Plot 8 without the consent and approval of the plaintiff is illegal, unlawful and amounts to breach of the native law and custom of Ezeogba Emekuku, public order and public morality.
The plaintiff did not give any evidence of the native law and custom of Ezeogba Emekuku and how the burial of Comfort Nnoruo Okeke at No. 8 New Market Lane Owerri breached the custom of the said Ezeogba Emekuku. I shall therefore decline to make the declaration sought in No. 3 of the claim attached to the Writ of Summons.
However, I have earlier stated above that the burial of the body of Comfort Nnoruo Okeke at No. 8 New
Market Lane Owerri was an act of trespass simpliciter.”
Dissatisfied with the above judgment, the Appellants filed a Notice of Appeal containing seven (7) Grounds of Appeal before this court on 7-8-2008.
Appellants brief of argument dated 16th March 2011 was filed on 17th March 2011. The respondent’s brief of argument dated 16/10/2012 was filed on the same day.
Learned counsel for the Appellants nominated three (3) issues for determination namely:
“1. Whether the plaintiff/respondent established his title to the parcels of land in dispute- grounds 1, 2 and 7
2. Whether the defendants/appellants established the defence of implied or resulting trust against the plaintiff/respondent in respect of part of the land in dispute as shown in exhibits A & B – grounds 3, 4 and 5.
3. Whether the plaintiff/respondent established the tort of trespass to the land in dispute against the defendant/appellants – ground 6.”
The respondent adopted the three (3) Issues nominated by the Appellants for determination. On Issue No. 1, learned counsel for the Appellants submitted that the land in dispute is shown to be Plot No. 8 New Market Lane Owerri as shown in Survey Plan No. E/GA/1421/75 in Exhibit F as Parcel A and Parcel B at page 199 of the Record of Appeal. That, the respondent pleaded and gave evidence of how he acquired title to the two parcels of land from different vendors namely, Thomas Oguoma and Samuel Nwosu Mezu.
Appellants counsel submitted that the only evidence by the respondent in proof of his purchase of land from Thomas Oguoma is Exhibit G, which is titled “Temporary receipt” and that the respondent tendered Exhibit A and B in respect of the land he purchased from Samuel Nwosu Mezu.
Counsel submitted that the respondent based his claim to part of the land in dispute upon Exhibit ‘G’ he therefore has a duty to prove its validity. This, according to Appellants counsel is because, a plaintiff who bases his claim to title upon a document has the duty of upholding its validity by proving due execution. And, that the duty is stronger in cases where its validity and due execution had been seriously put in issue on the state of the pleadings and there was no evidence to the contrary.
On this, counsel referred to the case of Jegede vs. Citicon (Nig.) Ltd (2001) 4 NWLR (Pt. 702) 112 at 135.
Counsel submitted that Exhibit G, upon which the respondent based his claim to part of the land in dispute is a receipt. That, it is not a registered document of title, and that the respondent did not plead or lead evidence of customary purchase. He did not call any witness from the Thomas Oguoma family in support of the transaction.
Counsel submitted that DW1 (Kelechi Oguoma) who is the son of Thomas Oguoma testified and tendered Exhibit ‘L’ to show that his father sold the land (which is known as parcel B in Exhibit ‘F’) to Comfort Okeke (sister of the 1st Appellant and mother of the 2nd Appellant) and not to Augustine Eto Amaechi (original plaintiff) as claimed in Exhibit G.
Counsel referred to the case of Akere vs. Adesanya (1993) 4 NWLR (Pt. 288) 484 at 499 and said that Exhibit G, can only be regarded as evidence of payment of money by Eto Akagha Amaechi to Thomas O. Oguoma. It did not say anything about the land in dispute that is No. 8 New Market Lane Owerri or its extent.
Exhibit ‘G’ said counsel, is therefore not a document of title in respect of the land in dispute or any part of it. Also, that the respondent failed to prove the exact extent and identity of the land which he claims in this suit.
Counsel referred to paragraph 13 of the respondent’s Amended Statement of Claim which referred only to the land purchased from Nwosu Mezu as Plot 8, New Market Lane Owerri and that documents in relation to the purchase of the land were tendered as Exhibit A, B and F respectively.
He said, Exhibit F contains the Deed of Conveyance and the Survey Plan in respect of the land in dispute. That, a careful look at Exhibit B and the Survey Plan attached to Exhibit F will reveal that they relate to different parcels of land and also have different Survey Plan No. E/GA/35/73 while the Plan No in Exhibit F is Plan No. E/GA/142/75.
Counsel submitted that respondent’s explanation to this manifest contradiction in the identity of the land in dispute can be seen at page 67 of the record, where he testified thus:
“I did not make two different plans in respect of No. 8 New Market Road, Owerri, I used Exhibit B and plan attached to Exhibit F in registering Exhibit A.”
Appellant counsel submitted that it has been shown that the Survey Plan in Exhibit F was produced in 1975 and bears Plan No. E/GA/1421/75 and could not therefore have been used in registering Exhibit ‘A’ in 1973.
He submitted that the further explanation by the respondent that he purchased another piece of land from Thomas Oguoma in 1974 did not help matters. That, according to the Appellants counsel, is because the respondent did not show by evidence the particular piece of land which he claimed he purchased from Thomas Oguoma. There is no Survey Plan in respect of such piece of land.
Counsel queried, can any reasonable person believe the story that the respondent surveyed the land he purchased in 1972 and registered the document of title, but could not survey land he purchased in 1974?
He submitted that these clear inconsistencies in the respondent’s case created doubt as to the area, extent and identity of the land to which the respondent’s case relates.
Counsel argued that failure by the respondent to prove the extent of the land he claims in this suit renders any judgment in his favour a nullity because where a plaintiff fails to prove the exact extent or boundaries of the area of land he claims his action should be dismissed.
On this, counsel referred to the cases of Adeyeri vs. Adeniran (2001) 10 NWLR (Pt.720) 151 at 160 lorde vs. Ihyambe (1993) 3 NWLR (Pt. 280) 197 at 207, Ijade vs. Ogunyemi (1996) 9 NWLR (Pt. 470) 17 at 28.
Counsel submitted that the Appellants defence is that the land in dispute (Plot 8 New Market Lane Owerri) comprises different parcels of land purchased from Thomas Oguoma and Nwosu,Mezu in 1971 and 1972 respectively by Mrs. Comfort Nnoruo Okeke and Augustine Eto Amaechi respectively for the benefit of the 1st Appellant (Dr. Sylvanus Amaechi) who provided money for the said purchases from Europe where he was working then That, evidence of these land purchases are shown as Exhibits A and L. That, by Exhibit M, the 1st Appellant applied for and obtained approval of the Owerri Capital Development Authority in 1978 to erect building on the said land. It is also in evidence, according to the Appellants that Mrs. Comfort Okeke had erected a temporary structure on the land which she was living and doing her restaurant business before the permanent building by the 1st Appellant. These pieces of evidence go to show that the Appellants were in possession of the land in dispute before the purported approval for the respondent in 1983 as can be seen from Exhibit K at page 214 of the record.
The learned trial Judge, said counsel, was therefore in error when he held that the respondent had proved his case by showing acts of possession.
Counsel submitted that the respondent who is asking for a declaration of title to the land in dispute in his favour, must succeed on the strength of his case by producing a duly registered document of title in proof of his title to the land in dispute as shown in the Survey Plan No. E/GA/142/75 attached to Exhibit F.
He referred to the case of Bello vs. Eweka (1981) 1 S.C. 101 at 102 and urged that issue 1 be resolved in favour of the Appellant.
On Issue No. 1, learned counsel for the respondent adopted paragraph 4.02 of the Appellants brief of argument where it was conceded that the land in dispute is shown to be Plot No. 8 New Market Lane Owerri as shown in Plan No. E/GA/1421/75 in Exhibit F as Parcel A and Parcel B and that paragraphs 13 and 15 of the Amended Statement of Claim pleaded how the respondent acquired title to the two parcels of land from different vendors namely: Thomas Oguoma and Samuel Nwosu Mezu.
In furtherance to the above concession by the Appellants, learned counsel for the respondent stated that in proving his title to the land in dispute, the respondent relied on production of title documents and by proving acts of ownership numerous and positive enough to warrant an inference that he is the owner of Plot 8 New Market Lane, Owerri.
This, he said, is in line with the Supreme Court decision in the case of Fasoro vs. Beyioku (1988) 2 NWLR (Pt. 76) 263 at 271.
Respondent’s counsel submitted that they tendered Exhibit A, B, C, D and G which are the documents of title touching on the land in dispute.
Counsel submitted that though Exhibit G did not mention No. 8 New Market Lane Owerri, yet it described the land to which the respondent paid the sum of 50 pounds to be situate at Otu Ala Oke.
The question, said the respondent’s counsel is “Has the defendant (Appellant) through any other document tendered linked Oto Ala Oke to part of the land in dispute or to the land of Thomas Oguoma which he sold to the plaintiff (respondent) in 1974 or has he through evidence proved the exact extent and identity of the land which he claims in this suit?
It was submitted that the Respondent has in his evidence stated that after he bought the land from Thomas Oguoma, he surveyed it together with the one he bought from Samuel Nwosu Mezu. That, the said Survey Plan is Exhibit F. That the respondent in his pleadings and evidence described who is boundary neighbours were.
That, these pieces of evidence were sharply corroborated by Exhibit J, which is the judgment of Magistrate Court dated 14/12/1988 between the respondent who was the 1st defendant in that suit brought by his boundary neighbour Longinus Enwere.
Counsel submitted that Exhibit J. shows that Comfort Okeke whom the Appellants are claiming to have bought the said land for the 1st Appellant testified that she was joined in the suit because her brother, respondent brought her into the land the subject matter of that suit which is also part of the land the subject matter in this appeal. That, throughout the defence of that suit at the Magistrate Court, she did not mention the name of the 1st Appellant. That, in that proceedings also, it was established that the respondent bought the land from Thomas Oguma to enable his land he bought from Nwosu Mezu (Exhibit A) abbot/link to the New Market Lane.
He submitted that there was no doubt that the respondent proved the extent and identity of the lands in dispute and that he purchased the land from Thomas Oguoma which is Exhibit G, and Nwosu Mezu Exhibit A.
It was also submitted that the respondent has through exhibit E to E24 proved the acts of ownership/possession he exercised over the land without any challenge from the 1st Appellant. That, Exhibit J also shows that Comfort Okeke was let into the land by the respondent.
He submitted that the respondent established his title to the land in dispute on a preponderance of evidence as enunciated in the case of Idundu vs. Okuragho (1976) 1 NMLR 200.
Counsel submitted further that contrary to the suggestion of the learned counsel for the Appellants, there is nothing in Exhibits A and/or L showing that the said piece of land was purchased on behalf of the 1st Appellant.
Counsel said, there is evidence that the 1st appellant came back to Nigeria in 1977. 1st Appellant said he met the late Thomas Oguoma over the land in dispute before he died. Exhibit J shows that the original plaintiff in the suit at the trial court, Augustine Eto Amaechi, when he bought the first portion of land from Nwosu Mezu in 1972, asked his sister Comfort Nnoruo Okeke the 2nd defendant in Exhibit J to stay on the land and looked after it.
That, in 1974, he also bought the 2nd portion from Thomas Oguoma and developed them by building batchers.
That in page 207 of Exhibit J, the 2nd defendant in that suit testified that she was operating a hotel on the land of the original plaintiff (respondent) Augustine Eto Amaechi, she did not mention the name of the 1st Appellant Dr. Sylvanus Obichere Amaechi.
That, no mention was made by Mrs. Comfort Okeke in Exhibit J that the land upon which the boundary dispute arose was purchased by her on behalf of the 1st Appellant. Moreover, said counsel, there is no where it was recorded that the then Barrister Njemanze defended the matter as claimed by the 1st Appellant in the present suit.
Counsel submitted that the 1st appellant was at home in Nigeria when the suit in Exhibit J was fought. That he (1st Appellant) did not apply to be joined, that no mention was made of him despite his claim that the original plaintiff (Respondent) handed him over the land to which he erected a 4 rooms boy’s quarters for her sister Comfort Nnoruo Okeke.
Finally, on this issue, respondent’s counsel submitted that the Appellant did not show a better title to warrant this court setting aside the judgment or findings of the lower court. He urged us not to interfere with the findings of facts on this issue.
He referred to the case of Bellow vs. Ringm (1991) 7 NWLR (Pt. 206) 668 at 672.
A preliminary observation on Issue No. 1 is that the parties were not in dispute as to the exact area of land and or the two parcels, A and B that constitute the land known as No. 8 New Market Lane Owerri. The area of the land was as shown in the respondent’s plan Exhibit F which was not disputed by the Appellant. It is trite that where in a land case, the area of land in dispute is well known to both sides, the issue of proof of it does not arise, as the court cannot possibly reach a conclusion that the area claimed is not certain. See: Osho vs. Ape (1988) 8 NWLR (Pt.562) 492 at 495
More importantly, the identity of the land in dispute was never in question in the instant case. The issue will only arise where the defendant raises it in his statement of defence and supported by evidence.
See: Dada vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 SC Ogun vs. Akinyelu (2004) 18 NWLR (Pt. 905) 362 SC., Otanma vs. Youdubagha (2006) 2 NWLR (Pt. 964) 337 SC.The critical point in the determination of Appellant’s Issue No. 1 is the need for the Appellants to realize and or appreciate that the Respondent’s claims before the lower court was not only based on proof of ownership of land by the production of title documents over what he termed parcel A, that is the piece of land which the respondent purchased in 1972 from Nwosu Mezu but also concerned with proof by acts of ownership which extended to parcels A and B in exhibit F that is the land now christened as No. 8 New Market Lane Owerri.
To be sure that the basis of the respondent’s claim is not only in proof by production of title documents but also extended to acts of ownership and possession, let us examine relevant paragraphs of the respondent’s Amended Statement of Claim.
“5. Over a period during the lifetime of late Comfort Nnoruo Okeke (nee Amaechi) she was living in one of the rooms of the boy’s quarters of Plot 8 New Market Lane Owerri-property of the plaintiff. The plaintiff gave her one of the rooms to live out of sympathy because she deserted her marital home.
11. The plaintiff being the head of the larger Amaechi family on the one hand and the sole owner of the land now in dispute on the other, defendants ought to have sought his opinion, consent or approval before carrying out this reckless act of lawlessness.
13. Plot 8, New Market Lane Owerri is the property of the plaintiff Nze Augustine Eto Amaechi which he purchased for a consideration from one Nwosu Mezu of Umuodu Owerri in 1972 and the said property was registered at the land registry Enugu on 18/2/74 at No. 95 page 95 Vol. 678. The documents evidencing the conveyance and acts of possession is hereby pleaded.
14. The plaintiff being desirous of having his said land linked to a major street also bought another piece of land from Thomas Oguoma in 1974 at a cost of ?50.00 (fifty pounds) or N100.00 (one hundred Naira). This piece of land from Thomas Oguoma shares common boundary with the one bought from Samuel Nwosu Mezu and about New Market Lane, Owerri.
15. After plaintiff had bought the said piece of land from Thomas Oguoma on 11/5/74, he caused the same to be surveyed together with the earlier parcel of land bought from Samuel Nwosu Mezu. The survey Plan No. E/GA/1421/75 showing the two parcels of land made in plaintiff’s names and dated 10/8/75 is hereby pleaded.
16. The plaintiff has the following as the original boundary neighbours at the time the said two pieces of land were bought, they are: Lawrence Anyanwu, Richard Ndukwe, Rhoda Agu and Longinus Enwere.
17. In 1985, the plaintiff had a boundary dispute with Longinus Enwere over the portion bought from Thomas Oguoma. Longinus Enwere was the plaintiff in the said land dispute which was filed at the Magistrate Court, Owerri where he sued for trespass. The said suit was dismissed by His worship Mrs. I. Offonru, Senior Magistrate 1 who awarded a cost of N100.00 against Longinus Enwere. The said judgment dated 14/12/88 is hereby pleaded.
18. In 1983, the plaintiff applied for approval of a building plan which was approved by the Owerri Capital Development Authority. The letter of approval dated 20/7/83 is hereby pleaded. Pleaded also is the Approved Building plan registered with OCDA on 20/10/82 as No. OCDA/P/508/82.
19. The plaintiff had been in an undisturbed possession thereof and has erected a 4 room boy’s quarters therein since 1984 before the recent interference by the defendants. We plead and rely on all documents evidencing acts of ownership/possession. Also erected are a gate, fence and shades. The plaintiff has tenants occupying the boys quarters and shades.
25. None of the defendants is in possession under any claim of title or otherwise of the plaintiff’s said property Plot 8 New Market Lane, Owerri.”
In furtherance of these claims, the respondent gave evidence and tendered Exhibits A, B, D, E to E 24 F, G, J and K.
More particularly, Exhibit A or B is the registered conveyance on the parcel A that made up No. 8 Market Lane, Owerri, that is the piece of land purchased by the respondent from Nwosu Mezu in 1972.
Exhibit ‘G’ represents the receipt of the Parcel B that made up No. 8 New Market Lane Owerri, that is the piece of land bought by the respondent from Thomas Oguoma in 1974. Exhibit F represents the Survey Plan whereby the respondent indicated the merger of Parcels A and B in a single Survey Plan.
Exhibit E to E24 are receipts of tenement rates paid by the respondent to the Owerri Local Government over the years on the said Plot No. 8 New Market Lane Owerri.
The case of the respondent before the lower court cannot be completely analyzed or appreciated without mentioning the significance of Exhibit J.
Exhibit J. is a judgment of the Senior Magistrate court whereby the respondent was sued along with his sister Mrs Comfort Okeke (nee Amaechi) by his boundary neighbour Longinus Enwere. In that case, Mrs Comfort Okeke (nee Amaechi) whom the Appellants claimed to have purchased the land of Thomas Oguoma on their behalf earlier than the respondent gave evidence in favour of the respondent.
The said Mrs Comfort Okeke in Exhibit J not only admitted that the land in dispute belongs to the respondent but also that it was the respondent who let her into the land in dispute.
The significance of Exhibit J therefore is that the Appellants having admitted that the respondent is the owner in possession of the land in dispute, the burden of proof shifted on the Appellants to prove the contrary. See: Ezukwu vs. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 SC. Udeze vs. Chidebe (1990) 1 NWLR (Pt. 125) 141 SC.
In the instant case, the learned counsel for the appellants would rather want to tie the hand of the respondent to the production of title document in respect of the parcel A that made up the land in dispute and perhaps rescue the Parcel B from the respondent on the ground that Exhibit L, the purchase receipt said to have been obtained by Mrs Comfort Nnoruo Okeke from Thomas Oguoma preceded Exhibit G which is the purchase receipt obtained by the respondent from Thomas Oguoma.
First, the evidence of Mrs. Comfort Okeke (nee Amaechi) as per Exhibit J has casted serious doubt on the authenticity of Exhibit L.
Second, there are five recognized ways of proving the ownership of land. These are by traditional evidence, production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time, by acts of long possession and enjoyment of the land, by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. The law is that the establishment of one of the five ways is sufficient proof of ownership.
See: Idundun vs. Okumagba (1976) 9 – 10 SC 337. Ndukuba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432, Adesanya vs. Aderounmu (2000) 6 SC (Pt. 11) 18 , Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31 at 34 SC.
In this respect, it is important to emphasis that a plaintiff seeking to establish ownership of land may be content by using only one of the five ways of proving ownership, as a single means of proof would suffice. But there is nothing under the rule in Idundun vs. Okumagba (supra) stopping a party from combining two or more of the methods of proof provided that his pleadings cover the various ways of proof.In the instant case, the respondent has proved his ownership of Plot No. 8 New Market Lane Owerri by positive acts of ownership extending over a sufficient length of time and also by production of title documents.
Finally on this issue, I endorse the statement of the law by the learned trial Judge in the instant case, that where two persons claim to be in possession of a piece of land at the same time, the law ascribed possession to one with better title – Awoyoolu vs. Aro (2006) 4 NWLR (Pt. 971) 481 SC.The respondent in the instant case has shown better title to the land in dispute over and above the Appellants.
Issue No. 1 is resolved against the Appellants.
On Issue No. 2, learned counsel for the Appellants submitted that the defence of the Appellants to the claims of the respondent as pleaded is that the 1st Appellant while in Europe (abroad) sent money to his brother Augustine Amaechi (original plaintiff) for the purchase of the land shown in Exhibit A and B.
That, DW2, Okechukwu Mezu (son of the vendor, Samuel Nwosu Mezu) and the DW3, Harry Joe Anyasodo Awuzie who were witnesses to the transaction in respect of the land in dispute testified to the fact that Augustine Amaechi (the respondent’s father) purchased the land on behalf of and for the benefit of the 1st Appellant.
Counsel submitted that the aforestated pleadings and evidence were neither denied nor controverted by the respondent and they are, to that extent, deemed to have been admitted.
On this, counsel referred to the cases of Obiba vs. Muemue (1999) 10 NWLR (Pt. 622) 134 and Folorunso & Anor vs. Shaloub (1994) 3 NWLR (Pt. 333) 413 at 433
Learned counsel for the Appellants referred to the evidence of the 1st Appellant as DW5 at pages 126 to 127 of the record, where he testified that:
“I sent money to Mrs Okeke and late Nze Augustine Amaechi to buy the land. They bought the land as I requested them. This is the receipt issued to my sister at the time of the purchase. It is Exhibit ‘L’. My late brother told me he bought the land with the money I sent but he did not tell me he registered the land in his name.”
Learned counsel for the Appellants also reviewed the evidence of DW1 , DW2 and DW4 and submitted that Exhibits A and L show that the parcels of land in dispute were purchased in 1972 and 1971 respectively immediately after a prolonged civil war in the Eastern part of Nigeria.
He submitted that the respondent only adduced evidence to show that Exhibits A and G were issued in the name of Augustine Eto Amaechi (late). But, that there was no effort by the respondent to produce evidence from any of the vendors or their predecessors – in -title even when the Appellants had in their pleadings challenged the respondent’s claim regarding purchase of the land from the vendors, especially Thomas Oguoma.
Appellants counsel referred to the cases of Atta vs. Ezeanah (2000) 11 NWLR (Pt 678) 363 at 383, Adekeye vs. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 and submitted that in the circumstances of the case, we should hold that the defence of resulting trust has been created in favour of the 1st Appellant.
Learned counsel for the respondent submitted in respect of Issue No. 2, that contrary to the contention of the Appellants, the evidence of DW2 and DW3 were indeed challenged. He referred to pages 116 to 118 of the record. That DW2 was asked whether he read Exhibit A before he signed and he answered in the affirmative. Also, that DW3 who hitherto claimed that he signed Exhibit A could not identify his name on the said document.
Learned counsel for the respondent also reviewed the evidence of PW1 especially as regards PW1’s insistence that the 1st Appellant never sent any money to him from overseas to purchase land for him and submitted that the 1st Appellant failed to prove by credible evidence that PW1 (the original plaintiff) intended to and in fact bought Plot 8 New Market Lane Owerri for him and that he paid the purchase price of the land in dispute.
Counsel submitted that the authority in the Court of Appeal case of Atta vs. Ezeanah (2000) 11 NWLR (Pt. 678) 363 at 383 does not assist the Appellant. That, the Supreme Court had on 27/2/2004, set aside the judgment on appeal (see Ezeanah vs. Atta (2004) All FWLR (Pt. 202) 1858.
In that case, said respondent’s counsel, the Supreme Court held that the Appellant who was the defendant at the lower court did not prove by evidence resulting trust as there was no tangible evidence that the claimant there-Attah, the former Chairman of First Bank advanced money to which the Appellant bought the property in dispute based on a promise of marriage by Mrs. Ezeanah, the Appellant.
Counsel urged that this court should not disturb the finding of the court below that there was no evidence to support a finding of resulting trust in favour of the Appellants.
Now, the 6th Edition of the Black’s Law Dictionary at page 1523 defines resulting trust as “one that arises by implication of law, or by operation and construction of equity, and which is established and consonant to the presumed intention of parties as gathered from the nature of the transaction. It arises where the legal estate in a property is disposed, conveyed or transferred but the intent appears or is inferred from the terms of the disposition.”In the instant case, there is nothing in Exhibit A, G or L to suggest that the purchases of land therein was meant for the 1st Appellant. Relatedly, Exhibits A, G and L are documents, the contents of which could not be varied by oral evidence under the provisions of Section 128 of the Evidence Act 2011 which deals with the evidence of terms of judgments, contracts, grants and other dispositions of property reduced to documentary form.
Therefore, I do agree with the learned trial Judge when he held at page 168 of the record that:
“The 1st defendant has failed to prove that the PW1 intended to and in fact bought Plot 8 New Market Lane for him and that he paid the purchase price of the land in dispute.
Furthermore, there is no memorandum in writing showing remittance of money by the 1st defendant to the plaintiff for purchase of land for the 1st defendant. Exhibit PP1 and N do not constitute such memorandum showing remittance of money”
Issue No. 2 is resolved against the Appellants.
In Issue No. 3, the learned counsel for the Appellants insisted that the learned trial Judge was in error to have found the Appellants liable for trespass. In particular counsel referred to pages 170 of the record, where the learned trial Judge held thus:
“The plaintiff did not give evidence of the native law and custom of Ezeogba Emekuku and how the burial of Comfort Nnoruo Okeke at No. 8 New Market Lane Owerri breached the custom of the said Ezeogba Emekuku.”
That, in view of the above quoted findings of the trial court, it was wrong to have held the Appellants liable for trespass.
Now, it is trite that where two parties are both on a piece of land claiming possession thereof, the possession being disputed, trespass will be at the suit of one who can show that title belongs to him See: Umeobi vs. Otukoya (1978) 4 SC 33.
In the instant case, having declared the right to the ownership of the statutory right of occupancy in favour of the respondent, the learned trial Judge could not be wrong to have found the appellants liable in trespass. It is a settled principle of law that once an act of trespass is established, the trespasser is liable to damages.
See. Okurinmeta vs. Agitan (2002) 2 NWLR (Pt. 752) 565.
In the instant case, the burying of late Comfort Okeke on the land adjudged to be owned by the respondent without the consent of the respondent constitutes trespass and occasioned injury that calls for compensation. See: Asua vs. Tofi & Ors (2001) FWLR (Pt. 72) 2054 at 2062.
This is because trespass to land is the wrongful invasion of the private property of another. It is trespass to land provided the entry into the land of another person is not authorized. Trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed.
See: Ndukuba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432, Okoko vs. Dakolo (2007) 14 NWLR (Pt. 1000) 401, Yusuf vs. Keinsi (2005) 13 NWLR (Pt.943) 554, Oyadeji vs. Adenle (1993) 9 NWLR (Pt.316) 224.In the instant case, the learned trial Judge was not wrong to have found the Appellants liable for trespass.
Issue No. 3 is resolved against the Appellants.
Having resolved the three (3) Issues in this appeal against the Appellants, the appeal lacks merit and it is accordingly dismissed.
I make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A: My learned brother M.A Owoade; JCA gave me the opportunity to read before now the judgment just delivered by him.
My learned brother exhaustively considered all the issues that arose for determination in this appeal. I agree with his reasoning and conclusions on those issues. I have nothing else useful to add. Consequently, I agree that this appeal is lacking in merit and is hereby dismissed by me.
I abide by the order on costs.
TIJJANI ABUBAKAR, J.C.A: My learned brother M. A. Owoade; JCA gave me the advantage of reading in advance, the judgment just delivered by him.
My learned brother admirably considered all the pertinent issues that arose for determination in this appeal. I agree with the reasoning and conclusions thereon. I have nothing else to add.
I equally abide by the consequential orders made therein.
Appearances
E.C. Ekechukwu, Esq.For Appellant
AND
Dr. A.N. Aguwa, Esq., with Mrs. V. Ndukwe, Esq;For Respondent
