EBONG v. EBONG
(2022)LCN/16391(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/C/336/2016
Before Our Lordships:
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MR. EBONG JOHN EBONG APPELANT(S)
And
MR. OKON WARRIE EBONG (Suing By Attorney Ms Uduak Okon Warrie Ebong) RESPONDENT(S)
RAIO:
POSITION OF LAW ON A DECLARATORY RELIEFS
Declaratory reliefs are only granted when credible evidence has been led by the person seeking the declaratory relief. The plaintiff must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. Declaratory relief is not granted even on admission by the defendant. There is however nothing wrong in a plaintiff taking advantage of any evidence adduced by a defendant which tends to establish the plaintiff’s claim. See Oguanuhu v Chiegboka (2013)2 SCNJ 693, Matanmi & Ors. v Dada & Anor (2013)1 LPELR (SC) and Anyanru v Mandilas LTD (2007)4 SCNJ 288. JAMES SHEHU ABIRIYI, J.C.A.
POSITION OF LAW ON DOCUMENT IN PROOF OF TITLE TO A LAND
…… a party who relies on a document in proof of his title to land must tender the document in evidence. Evidence from outside the document is not admissible. See the decisions of the Supreme Court in Adelaja v Alade (1999) 6 NWLR (Pt.608) 544 and Jiaza v Bamgbose (1999)7 NWLR (Pt.610) 182. JAMES SHEHU ABIRIYI, J.C.A.
POSITION OF LAW ON A DECLARATORY RELIEFS
It is established law that it is for the Plaintiff who claims declaration of title, trespass and injunction, to establish his title by supplying credible evidence in proof of his pleadings. The onus thereafter shifts to the Defendant to show that his own possession oust the Plaintiff’s possession. See ISAAC VS. IMASUEN (2016) 7 NWLR (PT. 1511) 250 AT 266; (2016) ALL FWLR (PT. 823) 1894 AT 1903. Suffice to say in a claim for declaration of title, the Claimant is to establish his claim by preponderance of evidence. The Claimant must succeed on the strength of his case. ADEMOLA SAMUEL BOLA, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 30th September, 2014 in the High Court of Cross River State in the Calabar Judicial Division sitting in Calabar. In the High Court (the Court below), the Appellant was the claimant. The Respondent was the Defendant.
The claim of the Appellant against the Respondent as contained in the Amended Statement of Claim was for the following:
(a) A declaration that the Appellant is entitled to a statutory right of occupancy over the property in dispute.
(b) A declaration that the Respondent’s restructuring of the already existing structure on the Appellant’s land without the consent of the Appellant constitutes trespass on the said land.
(c) And (d) Orders for perpetual and mandatory injunctions.
(d) The sum of six million Naira general damages for trespass to the disputed land.
The parties were cousins. The Respondent lived for several years with the Appellant’s father. After the death of the Appellant’s father the Respondent and the Appellant continued to live together in a mud and wattle house which the appellant said he built. According to the Appellant, the land on which the house was built was bought by him through the father. Several years after they had lived in the house, the Respondent commenced restructuring of his own portion of the house without the consent of the Appellant. The Appellant then gave the Respondent notice to quit the house.
The defence of the Respondent was that the mud and wattle house built by the appellant could only accommodate Appellant’s two brothers and two sisters and the Appellant himself. The Respondent stated that he built on the portion of land given to him by the father of the Appellant. That he (Respondent) merely brought workmen to change the mud and wattle structure to concrete.
The Court below considered the evidence led by both parties and addresses of their counsel and dismissed the claim of the Appellant. The Appellant approached this Court by an initial Notice of Appeal filed on 29th December, 2014. The Notice of Appeal was amended with the leave of this Court. The Amended Notice of Appeal filed on 8th August, 2017 contained nine (9) grounds of appeal. From the nine grounds of appeal the Appellant in an Appellant’s Brief filed on 8th August, 2017 but deemed duly filed and served on 4th February, 2019 presented the following three issues for determination:
(1) Whether the Appellant has established on the preponderance of evidence that he was the actual lessee of the land in dispute and not the Late John Ebong Akpan. (Distilled from Grounds 3.1, 3.4 & 3.5 in the Amended Notice & Grounds of Appeal).
(2) Whether the appellant is entitled as a tenant to a declaration of statutory right of occupancy over the land in dispute. (Distilled from Ground 3.6 in the Amended Notice & Grounds of Appeal).
(3) Whether in the circumstances of this case the respondent was liable for trespass on the land in dispute. (Distilled from Grounds 3.2, 3.3, 3.7, 3.8 & 3.9 in the Amended Notice & Grounds of Appeal).
The Respondent modified the issues formulated by the Appellant. The three issues formulated by the Respondent are reproduced immediately hereunder:
(1) Whether the Appellant can in law claim to be the original lessee of the land in dispute as to impugn the exclusive possession by the Respondent.
(2) Whether the Appellant is entitled to a declaration of Statutory Right of Occupancy over the land in dispute.
(3) Whether the trial Court was correct in law when it dismissed the claims of trespass against the Respondent.
Arguing the appeal, learned counsel for the Appellant contended that the Respondent did not deny the fact that it was the Appellant who gave his father, the late John Ebong Akpan money to acquire the land now in dispute as the general traverse in paragraph 3 of the further statement of defence was not sufficient denial of the averment in the statement of claim. The Court was referred to Bamgbegbin v Oriare (2009) LPELR 733 SC, Offoelo v National Electric Power Plc (2005) ALL FWLR (Pt. 285) at 565 and P.O. Hallmark Contractors Nigeria Ltd v Gomwalk (2015) LPELR – 24462 CA. It was contended that inspite of the uncontroverted pleading and the evidence of CW1 and CW2, the Court below refused to accept that the land in dispute measuring 100 feet by 100 feet and covered by Exhibit 1 was acquired by John Ebong Akpan on behalf of the Appellant.
It was contended that the fact that the land agreement was made in the name of the Appellant’s father is not enough to defeat the Appellant’s title to the land. The Court was referred to Madu v Madu (2008) ALL FWLR (Pt. 414) 1604 at 1624; Ughutevbe v Shonowo (2004) ALL FWLR (Pt. 200) 1185 at 1213 and Jolugbo v Aina (2016) All FWLR (Pt. 859) 864 AT 912. It is immaterial therefore, it was argued, that Exhibit 1 was made in the name of John Ebong Akpan and not in the name of the Appellant. It is also immaterial, it was further argued, that the Appellant did not object to the deed of lease being made in the name of John Ebong Akpan. Equity, it was submitted, will allow oral evidence to establish the real intention of the parties. The Court was referred Jolugbo v Aina (supra) at 901 and also Ughutevbe v Shonowo (supra) at 1213.
The Court below, it was contended, erred when it failed to attach due weight to Exhibits 3, 4 -4J, 5 and 6 because it alleged that there was no nexus between the lessor and lessee in Exhibit 1 and the Lessor and Lessee in the other Exhibits.
It was further argued that the fact that the Respondent may not have been aware of Exhibits 3, 4 – 4J, 5 and 6 at the time they were made was not enough to discredit those exhibits.
It was contended that on the issues joined, the Court below erred when it held that the original Lessee of the parcel of land in dispute measuring 100 feet by 100 feet was the late John Ebong Akpan and not the Appellant who provided the money for the initial lease.
On issue 2, learned counsel for the Appellant contended that the declaration sought by the Appellant that he is entitled to a statutory right of occupancy over the land at No. 14/12 Abatim Street, Calabar was not intended to defeat the title of his customary landlord over the land. That the declaration sought did not also affect or alter the contractual relationship of the landlord and tenant existing under deeds of lease (Exhibits 1, 3, 5 and 6) executed between the Appellant and his landlord covering the demised land.
It was contended that the Court below erred when it held that the Appellant was not entitled to a declaration of statutory right of occupancy just because he is vested only with a 99 years leasehold interest in the land in dispute.
On issue 3, learned counsel for the Appellant contended that by the averments, the parties in their pleadings joined issues on how the Respondent came into the property in dispute so it cannot be said that the Appellant did not deny the gift the respondent claims. In the circumstance, the respondent was obliged to prove his claim that a portion of the disputed land was given to him by the father of the Appellant.
It was contended that since there was no documentation of the gift claimed, the evidence of those who witnessed the gift was crucial. The Court was referred to Orido v Akinlolu (2012) LPELR – 7887 (CA), Obiazikwor v Obiaziakwor (2007) ALL FWLR (Pt.371) 1602 and Akinyele v Adebayo (2015) LPELR – 24304 (CA).
The Court below, it was argued, erred when it absolved the Respondent from liability for trespass just because the Respondent was let into the property initially by the Appellant.
On Respondent’s issue 1, learned counsel for the Respondent contended that the land in dispute was acquired by the Appellant’s father in 1963 through the Deed of Lease Exhibit 1. That Exhibit 1 evidently was executed in 1963 when the Appellant claimed that he “was selling at the Hotel and going to school at the same time”. That evidence of CW2 also shows that at the time their father bought the land he was a little child. The Court was referred to the evidence of CW2 at pages 175 of the record.
Therefore, there were gaps in the case of the Appellant, it was argued. That in an attempt to fill the gaps, the Appellant testified on facts that were not pleaded. The Court was referred to paragraphs 4 and 6 of the evidence in-chief of the Appellant at page 70 of the record.
The Court was also referred to the amended statement of claim of Appellant at page 43 where he pleaded that he was informed of the piece of land by his father while he was still in the Ministry but in his statement on oath at page 70 he stated he was introduced to it while on a routine visit to Calabar. That the Appellant claimed that he could not go down to execute the title document even though he said he was shown the piece of land on a routine visit.
The evidence of the Appellant, it was contended, was therefore contradictory in spite of the nature of the claim which was declaratory.
On the contention that the Respondent did not deny the fact that Appellant gave the father money to buy the land in dispute, learned counsel for the Respondent submitted that paragraph 3 of the further amended statement of defence was enough traverse and that, it cast on the Appellant the burden of proving the claim denied. The Court was referred to Dairo v Registered Trustees T.A.D. Lagos (2018) 1 NWLR (Pt.1599) 62 at 81.
The Appellant who asserted he sent money to the father to purchase the land had the burden to prove this, it was contended. This he failed to discharge it was argued. The Court was referred to Akinbade v Babatunde (2018)7 NWLR (Pt.1618) 366.
Exhibit 1 it was further pointed out, did not bear the name of the Appellant. It was contended that the Court below rightly held that the original lessee of the disputed land was the late father of the Appellant and not the Appellant.
The Appellant, it was further argued, did not demonstrate by evidence that he sent some money for the purchase of the land. That Exhibit 1 is bereft of such evidence.
On issue 2, learned counsel for the Respondent contended that the Respondent did not enter the land through any customary right of the Appellant. That the Appellant was not a “holder” under the Land Use Act. The Court was referred to the case of Abioye v Yakubu (2001) FWLR (Pt.83) 2212 at 2315.
A declaratory relief, it was submitted, is not granted as a matter of course. That declaratory reliefs are granted on the basis of strong and cogent cases contained in the claimant’s pleadings and evidence led in support. The Court was again referred to Akinbade v Babatunde (2018)7 FWLR (Pt.1618) 366.
The Court below, it was argued, rightly held that since the lessor of the land was not a party to the action, granting a statutory right of occupancy over the said land may prejudice the residual interest of the holder.
On issue 3, it was contended that the evidence of the Appellant in the case could not be accepted as capable of demolishing the evidence of gift by his father to the Respondent. The Respondent, it was contended, has lived on the land with his family for nearly forty years and was still living there.
The respondent, it was contended, consistently maintained that the property was partitioned among the children of the Appellant’s father and that family property that has been partitioned goes into different ownership by the constituent members of the family. The Court was referred to page 183 of the record and Alafia v Gbode Venture Ltd (2016) 65 NSCQR 1724 at 1770-1771.
What the Respondent sought to do it was argued was to remove the mud and wattle house and the renovation did not encroach on the Appellant’s portion and did not require his consent for such renovation. The Court was again referred to the case of Akinbade v Babatunde (2018)7 FWLR (Pt.1618) 366.
It was contended further that the Respondent having been given four rooms to occupy cannot suffer forfeiture, for minor acts of misbehavior such as renovating the building.
On the allegation that the evidence of DW1 was hearsay, it was contended that DW1 testified on the death of her father (the Respondent) and that she had adequate knowledge of the land in dispute through her father who became incapacitated during the pendency of the matter.
It was contended that with the long possession and acts of ownership on the part of the Respondent coupled with the fact that the Appellant is not the owner of the land in dispute, the Appellant’s claim for trespass was bound to fail.
The only issue for determination in the appeal is; whether on the evidence adduced by the Appellant he was entitled to the reliefs sought.
The main reliefs sought by the Appellant in the Court below were declaratory in nature. Declaratory reliefs are only granted when credible evidence has been led by the person seeking the declaratory relief. The plaintiff must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. Declaratory relief is not granted even on admission by the defendant. There is however nothing wrong in a plaintiff taking advantage of any evidence adduced by a defendant which tends to establish the plaintiff’s claim. See Oguanuhu v Chiegboka (2013)2 SCNJ 693, Matanmi & Ors. v Dada & Anor (2013)1 LPELR (SC) and Anyanru v Mandilas LTD (2007)4 SCNJ 288.
As the Court below pointed out the property in dispute is the portion covered by Exhibit 1. Exhibit 1 was in the name of the Appellant’s father. But the Appellant claimed to have sent the money for the property to the father. From the pleadings and evidence adduced by the Appellant he did not state how much he sent to the father, how the money was sent and exactly when the money was forwarded. Appellant ought to have led some credible evidence to establish that he sent money to the father to secure the lease of the property particularly when Exhibit 1 was in the name of the father. As the Court below rightly pointed out the Appellant had an uphill task to establish that the property was leased on his behalf by the father on the basis of Exhibit 1 which was in the name of the father. This is because a party who relies on a document in proof of his title to land must tender the document in evidence. Evidence from outside the document is not admissible. See the decisions of the Supreme Court in Adelaja v Alade (1999) 6 NWLR (Pt.608) 544 and Jiaza v Bamgbose (1999)7 NWLR (Pt.610) 182. The Appellant wrongly relied on Exhibit 1, the Deed of Lease between his father and one other person to seek the declaratory reliefs sought. The Appellant on the face of the document was not a party to the agreement. The Appellant led no other evidence on which he could be granted any of the declaratory reliefs sought. The burden was on the Appellant to prove that he gave money to his father to acquire the land in dispute on his behalf. It is immaterial that the Respondent did not deny the averment in the amended statement of claim to that effect. Unfortunately, the Appellant led no evidence to establish the fact that the land was acquired on his behalf by his late father.
The other reliefs sought by the Appellant in the Court below depended on the grant of the declaratory reliefs. The claim for the declaratory reliefs having not been established the other reliefs sought must necessarily also fail.
The Respondent’s counter claim as the Court below rightly pointed out, was abandoned in the Further Amended Statement of Defence. It did not therefore matter if he did not establish the gift of the portion of land on which his house was built and which is the subject of the action.
In the circumstances, the only issue for determination is resolved against the Appellant and in favour of the Respondent.
The appeal is hereby dismissed for lacking in merit. Parties shall bear their respective costs of the appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of previewing the lead judgment just delivered by my learned brother James S.
Abiriyi, JCA. I agree that a party seeking for declaratory relief before a Court must establish his alleged entitlement to the satisfaction of the Court. This is premised on the fact that declaratory relief is a discretionary remedy which must be refused where as in this case, the appellant failed to lead by credible evidence his entitlement to the relief sought.
I too dismiss the appeal for lacking in merit.
ADEMOLA SAMUEL BOLA, J.C.A.: I have had the opportunity of reading in draft the lead judgment delivered by my brother, JAMES SHEHU ABIRIYI, JCA. I am in agreement with his reasons and conclusion as elucidated in the judgment.
The Appellant who was the Plaintiff in the lower Court claimed in the main “Declaration that the Appellant is entitled to a statutory right of occupancy over the property in dispute”. The Appellant’s claim of being entitled to his late father’s property was dismissed due to want of cogent, compelling and convincing evidence.
It is established law that it is for the Plaintiff who claims declaration of title, trespass and injunction, to establish his title by supplying credible evidence in proof of his pleadings. The onus thereafter shifts to the Defendant to show that his own possession oust the Plaintiff’s possession. See ISAAC VS. IMASUEN (2016) 7 NWLR (PT. 1511) 250 AT 266; (2016) ALL FWLR (PT. 823) 1894 AT 1903. Suffice to say in a claim for declaration of title, the Claimant is to establish his claim by preponderance of evidence. The Claimant must succeed on the strength of his case.
The Appellant in this case has failed to establish his claim. His case is devoid of credible evidence. He has failed to produce sufficient and satisfactory evidence in support of his claim. He cannot succeed in the circumstance.
By reason of the aforesaid, I align myself with the decision of HON. JUSTICE J. S. ABIRIYI, JCA dismissing the Appellant case having resolved the sole issue postulated against him (Appellant).
Parties to bear their respective costs.
Appearances:
I. M. Anana, Esq. For Appellant(s)
Dr. Sam Eboh For Respondent(s)