ELUAKA v. PETER’S & DANIEL’S IND. (NIG) LTD (2022)

ELUAKA v. PETER’S & DANIEL’S IND. (NIG) LTD

(2022)LCN/16470(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/AS/290/2014

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MR. THOMAS ELUAKA APPELANT(S)

And

PETER’S & DANIEL’S INDUSRIES NIGERIA LIMITED RESPONDENT(S)

RATIO:

THE LAW ON ACQUIRING AN EQUITABLE INTEREST WHICH IS AS GOOD AS A LEGAL ESTATE

Equitable interest in land has been held to be acquired in the case of GBADAMOSI (RTD) & ORS v AKINLOYE & ORS (2013) LPELR–20937 (SC) per RHODES –VIVOUR, JSC thus:
“The well laid down position of the law is that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this is as good as a legal estate. The equitable interest so acquired can only be destroyed by a purchaser for value who had no notice of the existing equity.”
Also in MRS OLWASEUN AGBOOLA v UNITED BANK FOR AFRICA PLC & 2 ORS (2011) the Supreme Court coram ADEKEYE, JSC held thus:
“It is however trite law that a purchaser of land who has paid and taken possession of the land by virtue of registrable instrument which has not been registered has thereby acquired an equitable interest which is as good as legal estate. This equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity.”
See also: NSIEGBE v MGBEMENA (2007) 10 NWLR PT. 1042, PG. 364; OKOYE v DUMEZ (NIG) LIMITED(1985) 1 NWLR PT. 4. PG. 783. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

THE BURDEN OF PROOF AS TO ANY PARTICULAR FACT LIES ON THE PARTY WHO ASSERTS IT

Flowing from this, the burden now shifted to the Defendant/Appellant by virtue of the provision of Section 136 of the Evidence Act, 2011 to establish that he had a better title to the land in dispute (Legal or Equitable) than that of the Respondent.
See Section 136 (1) of the Evidence Act provides that:
“The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in course of a case be shifted from one side to the other.”
See the case of UNION BANK v RAVIH ABDUL & CO LTD (2018) LPELR–4633 (SC) the supreme Court per PETER–ODILI, JSC held that:
“It is now settled law that the burden of proving a particular fact is on the party who asserts it, which onus does not remain static in civil cases but shifts between adverse parties from one side to the other as the occasion warrants and the onus of adducing further evidence is not adduced.” ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

INADMISSABLE EVIDENCE CANNOT BE ADMITTED EVEN WITH THE CONSENT OF THE PARTIES

It is trite that an unregistered registerable instrument is inadmissible in evidence and where it is erroneously admitted, it is subject to be set aside. It is also trite law that inadmissible evidence cannot be admitted even with the consent of the parties and is always liable to be expunged from the Court’s record. See OGBIMI v NIGER CONSTRUCTION LTD (2006) 7 IN JSC 154; AYANWALE & ORS v ATANDA & ANOR (1988) 1 SC 1 AT 20. However, there is an exception to the general rule that unregistered registrable instrument is inadmissible where such a document of title is pleaded as a receipt or act of ownership and possession. See AKINDURO v ALAYA (2007) LPELR–344 (SC); AGBODIKE v ONYEKABA (2001) FWLR (PT. 62) 1915; MRS GLADYS APPAH v MRS CHINYERE EGWUATU (2012) LPELR–20847 (CA). As earlier held when it is tendered as evidence of payment of money and if coupled with possession, it gives rise to an equitable title or interest enforceable by specific performance. See: AWOAGBO v EZE (1995) 1 SCNJ 151 AT 168 and ATUFE v OGHOMIENOR (2004) ALL FWLR (PT. 224) 2063. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Honourable Justice C. O. Ogisi sitting at the High Court of Justice, Delta State, Asaba, Judicial Division delivered on 29th April, 2014 wherein judgment was entered in favour of the Respondent.

The claim of the Respondent/Claimant against the Appellant/Defendant is as follows:
i. A Declaration that the Claimant as against the Defendant is entitled to the exclusive possessory rights over the parcel of land lying and situate at Ugwumba Layout (along Federal College Road), Ezenei (Umuezei) Family Land, Asaba, Delta State, and measuring approximately 1,873.871 square meters or 200 feet by 100 feet, as per Survey Plan No. SC/DT/W/140/2006 dated 15/8/2006 and prepared by a registered Surveyor, A. C. O. Okojie;
ii. A Declaration that the entry into the said Land and the activities carried out thereon by the Defendant and/or his agents without consent of the Claimants amounts to trespass;
iii. N10,000,000 (Ten Million Naira) being damages for trespass against the Defendant;
iv. Perpetual Injunction restraining the Defendant by himself, his agents, privies, workmen or assigns from further trespassing unto the aforesaid Land.

The Appellant filed an Amended Statement of Defence challenging the Claimant’s title to the land in dispute, his case is that the land in dispute was a grant from his elder brother, Ogbueshi Adizua Eluaka. The matter went on trial and the trial Court found for the Respondent/Claimant.

Displeased with the lower Court’s judgment, Appellant filed a Notice of Appeal on 15th May, 2014 containing nine grounds of appeal. He also filed a brief of argument on 10th November 2016 which was settled by O. J Isede, Esq. of KEN E. MOZIA (SAN) & CO wherein the following issues were distilled for determination:
i. Whether the trial Court was right when it held that the Claimant had proved his equitable title to the land even when its vendor had deposed to an affidavit that the land in dispute is different from the land he conveyed to the Claimant.
ii. Whether “Exhibit C1”, the Deed of Conveyance does not require the Governor’s consent before the transaction and whether it does not require subsequent stamping and registration as required by law.
iii. Whether the onus is on the Defendant to prove a better title to the land in dispute more so when he did not file a Counter-claim.
iv. Whether the learned trial Judge was right in awarding N500,000.00 being damages for trespass and also an injunction against the Defendant/Appellant.

In response, the Respondent filed its own brief on 14th March 2017 and settled by Chike Onyemenam, SAN; Mrs A. E Henry- Idolor; Lawerence Imo Egwu Esq.; Promise Asiagwu Esq.; Chigozie Ubah Esq of GEORGE – ANN CHAMBERS. The Respondent adopted the four issues formulated by the Appellant for determination.

APPELLANT’S SUBMISSIONS
On issue 1, the Appellant submitted that the Respondent did not prove his equitable title or any title at all; that the Respondent hinged his title on a Deed of conveyance but his vendor, one Afam Okpunor had no root of title hence both of them went to the Ezenei family who then gave the Respondent a condition of paying yearly rent and by accepting the payment of yearly rent, the Respondent automatically became a tenant.

He further submitted that the Appellant on the other hand led evidence that the land was a grant from his elder brother, Ogbueshi Adizua Eluaka who got the land as part of his share from his late father’s property; the land had in 1975 been allotted to their late father by the Ezenei family.

The case of ATANDA v AJANI (1989) 6 SC (PT. 11) 87 at 114 PARA 20–40 at 115 PARA 5–10 was cited to submit that where two competing titles originate from a common grantor, the first in time takes priority.

He further submitted that CW1 under cross-examination admitted being aware that the Claimant’s vendor had sworn to an affidavit stating that the land he sold to the Claimant is different from the land in dispute but failed to do anything about it.

Counsel urged the Court to hold that the Claimant did not prove his title on the land in dispute.

On issue 2, Counsel submitted that Exhibit C1 is not a mere contract of sale because it had been signed, sealed and delivered thereby alienating the property; therefore it is subject to the Governor’s consent by virtue of Section 34 (7) of the Land Use Act and since same was not obtained it is void and of no effect whatsoever in law.

He further submitted that Exhibit C1 is a Deed of Conveyance and consequently it ought to be stamped and registered. The case of ACHILIHU v ANYATONWU (2013) 12 NWLR (PT. 1368) 256 at 300 PARAS F–H was cited to submit that the law is if by the time pleadings are filed the instrument had not been registered, then, it shall not be pleaded or used in evidence.

On issue 3, it is the submission of the Appellant that in an action of title or right of occupancy to a piece of land, the Plaintiff must succeed on the strength of his case and not on the weakness of the defence. He relied on the case of ODUNZE v NWOSU (2007) 13 NWLR (PT. 1050) 1 at 52 PARAS A–B.

The case of OLUSANYA v OSINLEYE (2013) 7 NWLR (PT. 1367) 148 at 164 PARAS D–F was cited to submit that failure on the part of the Claimant to call his Vendor as a witness raises the presumption of withholding evidence.

Appellant contended that he gave evidence to the effect that his father had been in exclusive possession of the land since 1975 when the land was allotted to him by the Ezenei family and the land subsequently passed on by inheritance to the children, one of who is the Appellant.

He further contended that the Respondent’s vendor had no valid title to transfer to the Respondent because he could not state the grantor of the land to the late Ogbueshi Obanua Okpunor and the date it was allegedly granted.

The case of NRUAMAH v EBUZOEME (2013) 13 NWLR (PT. 1372) 474 at 495 PARAS B–D was cited to submit the Appellant did not file a Counter-Claim which means the burden on the Claimant to prove his title to the land in dispute is heavier.

On issue 4, Appellant submitted that the lower Court erred in law when he declared that the Claimant by its evidence has proved its claim of damages when the Claimant did not prove title or earlier exclusive possession against the Defendant. He further submitted that since the Respondent did not establish his title and/or earlier possession, his claim for damages and injunction ought to fail. Relying on the authority of ODUNZE v NWOSU (2007) 13 NWLR (PT. 1050) 1 at 53.

RESPONDENT’SUBMISSIONS
Counsel arguing issues 1 & 3 together with reference to the pleadings and evidence tendered by the Respondent submitted that the Respondent clearly established its equitable title to the land in dispute via payment of purchase of price in 2006 coupled with entry into exclusive possession; and also established that it remained in exclusive and undisturbed possession from 2006–2009 when the Appellant came and disturbed its exclusive possession of the said Land.

He further submitted that the burden now shifted to the Appellant by virtue of the provision of Section 137 (2) of the Evidence Act to establish that he had a better title to the land in dispute (legal or equitable) than that of the Respondent; that the failure of the Appellant to prepare and file a litigation survey plan and to cross-examine the Respondent’s surveyor (CW2) constitute an admission of the case of the Respondent.

Counsel argued that the Appellant limited his appeal to his complaint that the Respondent failed to prove equitable title in view of the fact that its Vendor deposed to an affidavit that the land he sold to the Respondent was different from the Appellant’s own land; hence the Appellant is bound by other specific findings of facts by the learned trial Judge. Relying on CALABAR CENTRAL CO–OPERATIVE THRIFT & CREDIT SOCIETY LTD. & ORS v BASSEY EBONG EKPO(2008) 1–2 SC 229 at 246–247 LINES 3–5.

The submission of the Respondent was that the issue before the lower Court was a claim for trespass wherein following the Appellant’s challenge of the Respondent’s title, the issue before the lower Court became who between the Respondent and the Appellant had shown a better title to the said land and who was first in time, as distinct from an ordinary claim for declaration of title to land where the burden remains on the Plaintiff and never shifts. He relied on the cases of ADEGBITE v CHIEF MK OGUNFAOLU & ANOR (1990) LPELR–93 (SC); EKWEOZOR v REGISTERED TRUSTEES OF SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2014) LPELR–23572 (CA).

On issue 2, Counsel submitted that Exhibit C1 was pleaded as a receipt or evidence of its payment of purchase price for the land by the Respondent.

He further submitted that Exhibit C1 was tendered and admitted in evidence without any objections from the Appellant’s counsel and having failed to the admissibility of same, it was not a live issue before the lower Court, hence the Appellant’s Grounds 3, 4 and 5 of his Notice of Appeal.

Therefore issue 2 formulated therefrom and the arguments canvassed by the Appellant in respect of same were grossly incompetent and ought to be struck out or discountenanced being an issue raised for the first time before the Court of Appeal without seeking prior leave to do so. Relying on ANTHONY NWACHUKWU v STATE (2007) ALL FWLR (PART 390) 1380 at 1403 Paragraphs C–A; MBANEFO v AGBU & ANOR (2014) LPELR – 22147 (SC).

Counsel assumed without conceding that he was wrong, he submitted that the Appellant’s arguments attacking or challenging the admissibility of the said Exhibit C1 is misconceived because the Respondent pleaded same as a purchase receipt.

He contended that having been put into physical and exclusive possession of the land, he acquired an equitable title to the said land; that the lower Court found that the Respondent was in exclusive possession first in time and it was the Appellant who later came to disturb the Respondent’s exclusive possession and this amounted to trespass.

On issue 4, Counsel submitted that the Respondent proved his equitable title to the land in dispute, exclusive and prior possession by the Appellant, thus entitling the Respondent to an award of damages for trespass and injunction.

In conclusion, he urged the Court to hold that the Appellant failed to establish equitable any of the issues formulated by him to necessitate the interference of this Court with the judgment of the lower Court.

RESOLUTION
The issues of the parties are ad idem, therefore I would adopt the issues formulated by the Appellant for the determination of this appeal. I however would be resolving issues 1 & 3 together and the other issues seriatim.

Before resolving this appeal, I must state that the Respondent’s brief was verbose and unwinding; brevity should have been applied to the arguments made by the Counsel to the Respondent.

ISSUE 1 (issues 1 & 3)
This issue relates to proof of equitable title to a land and onus on a part who asserts in land dispute cases.

From the pleadings and evidence put forth by the Respondent, the case of the Respondent is that it is a Limited liability company resident at Onitsha and it purchased the land in dispute, a half acre parcel of land at Asaba from its Vendor, one Afam Okpunor on 4th April, 2006 for the sum of N2.7 Million Naira. The Respondent was put in exclusive possession by its vendor in the presence of witnesses and surveyed the land; his vendor who supposedly acquired the land by inheritance from his late father decided in view of the fact that his inheritance of the land was not documented, to take the Respondent to his family, the Ezenei (Umuezei) Land Committee, the original owners of the land to investigate and confirm the validity of his title and his subsequent transfer of the land to the Respondent. After an investigation was carried out by the Ezenei (Umuezei) family of Asaba, they confirmed the Respondent’s Vendor’s title to be valid in writing, subject to the condition that the Respondent would in keeping with the practice of land purchased from Ezenei (Umuezei) family, be paying an annual rent to the Ezenei family.

The Respondent remained in exclusive and undisturbed possession of the land from 2006 until 2009, within which period, he had built a concrete wall fence and a bungalow/boys quarter until lintel/roofing level and paid the said annual rent from 2006 to 2008.

The Respondent pleaded that in 2009, the Appellant who is also a member of the Respondent’s Vendor’s Ezenei family of Asaba, trespassed on the land by entering and trying to complete the Respondent’s bungalow. He claimed that he quickly reported the matter to the Ezenei family, who investigated the interests of the parties and decided that the land in dispute belonged to the Respondent and ordered the Appellant to immediately desist from further acts of trespass. However, the Appellant in defiance of the ruling of the Ezenei family of Asaba began to construct a different bungalow on the land and mounted an iron gate on the Respondent’s wall fence. This led the Respondent to file this suit, it tendered in support of its case: a deed of conveyance (Exhibit C1); Survey plan no. SC/DT/14O/2006 of 15th August 2006 (Exhibit C2); Letter of confirmation of transfer dated 4th September 2006 (Exhibit C3); Receipt dated 5th September 2006; Photocopy of letter of confirmation of transfer of ownership dated 6th July, 2009 (Exhibit C7); Litigation Survey Plan No. AA/D07, 2012(Exhibit C8) and Extract from the minutes of mediation meetings of the Ezenei land committee between 22nd June 2010 and 27th July 2010 (Exhibit C9).

The arising question is whether the Respondent has been able to establish an equitable interest in the land?

From the above cited authority on how equitable interest is acquired, the Claimant/Respondent paid the sum of N2.7 million naira and was given Exhibit C1, although not registered by the Respondent, it was tendered as proof of payment of purchase price. See paragraphs 3–10 of the Statement of claim at pages 6–10.

The Respondent clearly established its equitable title to land in dispute through payment of purchase price in 2006 coupled with entry into exclusive possession; and also established that it remained in exclusive possession from 2006–2009 when the Appellant came and disturbed its exclusive possession of the said land.

On the flip side, the case of the Appellant at the lower Court was that the land in dispute originally belonged to the Appellant’s late father whom the Ezenei (Umuezei) family of Asaba allotted same to on 22nd September, 1975. Upon the death of the Appellant’s late father, the land was inherited by the Appellant’s elder brother (Adizua Eluaka) as part of his share of his late father’s estate and Adizua Eluaka thereafter on 2nd February, 2006 granted the Land in dispute to the Appellant by way of gift. The Appellant surveyed the land on 22nd July, 2008. That the Ezenei Land Committee which allegedly investigated the Respondent’s title to the Land in dispute and purportedly confirmed same as valid, was a committee not recognized by custom as presently constituted and had no powers to make binding decisions on members of Ezenei (Umuezei) Family; lacked powers to confirm the validity of titles to land already sold.

The Appellant having withdrawn from the arbitration proceedings before the process was completed is not bounded by the arbitral award and he was the one who built the two buildings on the land in dispute.

It is not in dispute that Ezenei family is the original owners of the land. A parcel of land measuring 100ft by 200ft may have been allotted to Obi Jacob Eluaka by the Umuezei family, vide Exhibit D1, allotted to the father of the Defendant, Obi Jacob Eluaka. The parcel of land allotted to the father of the Defendant issaid to be “just by Ugwumba Umuezei family Layout, Asaba” Is the parcel of land measuring 100 by 200, as described in Exhibit D1 the only parcel of land by Uwgwumba Umuezei family land, Asaba? There is no evidence as gleaned from the record upon which the answer to these queries can be resolved.

The land supposedly allotted to Obi Jacob Eluaka in 1975 was not described in the allotment paper and there is no evidence before the Court which makes it clear that the land allotted by the Umuezei family to the father of the Appellant is the land in dispute. As rightly contended by the Respondent’s counsel there is no evidence before Court to establish the fact that the Ezenei family members took the said Obi Jacob Eluaka to the land to show him its location or boundaries and put him in physical possession. This means that Obi Jacob Eluaka, the father of the Appellant did not take possession of the land purportedly allotted to him. The land allotted by Exhibit D1 is unknown or unidentified.

Apart from the averment of the Appellant in his written statements on oath, there is no evidence whatsoever as to when their father’s property was shared and who shared same.

The Appellant also tendered Exhibit D2, the Deed of Grant by which his elder brother, who allegedly inherited the land from their father, granted him the land. Exhibit D3 is the property survey plan which beacons numbers were quoted in Exhibit D2, the Deed of Grant. The Appellant was required to prove that he is in exclusive possession and has the right to enjoy same against all wrongdoers except a person who could establish a better title. See: OJOMU v AJAO (1983) LPELR–40076 (SC) and AMAKOR v OBIEFUNA (1874) ANLR P. 109.
The Appellant has not shown that he has right to possession or that he is the true owner of the land in dispute, most importantly, he has not been able to prove why the Respondent should be denied exclusive possessory right to the land in dispute. Only a person with better title supersedes a party who has been able to establish exclusive possession of the land.

The Respondent by Exhibit C2 surveyed the land in dispute in 2006 and the Appellant surveyed the same land in 2008 vide Exhibit D3. This clearly shows that the Respondent had a prior exclusive possession over the land.

It is trite that if a Plaintiff establishes by evidence act of exclusive possession, his claim for damages for trespass and an order of injunction may be granted, see: EZUKWU v UKACHUKWU & ANOR (2004) ALL FWLR (PT. 224) 2137 AT 2161 B–C.

I am in agreement with the lower Court where it held:
“In the instant case, the Claimant having proved to be in exclusive possession since 2006 is in my view entitled to an injunction against the Defendant. The Claimant’s possessory right in the face of Exhibit C4 appears to be a limited possessory right. If this is so then, the Claimant is entitled to an injunction per se and not perpetual injunction against the Defendant.
See page 323 of the record.

Exhibit C8 – Litigation Survey Plan helped to establish that the land purchased by the Respondent and claimed by the Appellant were the same land; that the land had already been fenced round and the Appellant later came to build a small bungalow and install an iron gate.

The Appellant submitted a Deed of transfer to the said land in dispute to him by the Ezenei family of Asaba in 2009 together with an Ezenei (Umuezei) family confirmation of the said transfer of the land in dispute to the Appellant dated 6th July, 2009. See pages 193–197 of the record.

Exhibit D1 – photocopy of a 1975 allocation paper of a piece of land to his late father by the Ezenei (Umuezei) family pleaded and tendered by the Appellant as his root of title to the land in dispute failed to describe the exact location and boundaries of the land allotted, see pages 64, 252 and 253 of the Record.

No evidence was led by the Appellant that his late father was taken to the allotted land and shown the location and boundaries, thereby putting him in physical possession of the land or that his father planted crops or farmed on the land neither did his late father survey the land to define its location, size and boundaries.

The Appellant further pleaded that his brother, Ogbueshi Adizue Eluaka inherited the unidentified land from their father, Obi Jacob Eluaka when his father’s properties were shared and tendered a Deed of Grant made on 2nd February 2006 which contained the size (1864.331 square meters) and the survey beacon numbers of his survey plan (SC/DT/W/134/2009) made on 22nd July 2008.

However, it is in evidence and deduced from the Appellant’s own survey plan and corroborating the Respondent’s evidence of prior ownership that at the time of survey by the Appellant, the Respondent had already installed concrete survey boundary beacons and fenced the land round with concrete wall fence (CWF). Therefore the allegation that the lands claimed by the parties are different does not add up on the evaluation of their survey plans.

I take cognizance of the fact that the Respondent’s vendor made deposition in favour of the Respondent, later made a deposition in favour of the Appellant that the land he sold to the Respondent was different from the land in dispute. This vendor was not called by either party and did not adopt either of the said depositions. Therefore, it is discontinued and struck out

However, the litigation plan – Exhibit C8 made by Surveyor Alex Anugo Okeke clears up any doubt whether the lands claimed by both parties are one and the same. The Respondent pleaded that he took the survey plan (Exhibit C2) made in 2006 by Surveyor A.C. Okolie and the Appellant’s survey plan made in 2008 by the same Surveyor A. C. Okolie to Surveyor Alex Anugo Okeke who went to the land, superimposed both parties’ aforesaid plans on each other and produced a litigation survey plan (Exhibit C8) which revealed that they were the same land.

The Deed of grant was pleaded by the Appellant as the evidence of the Appellant’s title to the land in dispute; see paragraph 4 of the Amended Statement of claim but it was not registered being a registrable instrument under Section 5 of the Land Titles Registration Law, Cap. L2 Laws of Delta State and was rightly held as inadmissible by the lower Court.

The Supreme Court in YEKINI ADEDOKUN OYADARE v CHIEF OLAJIRE KEJI & ANOR (2005) LPELR–2861 (SC) held per TOBI, JSC thus:
“Where a plaintiff proves sufficient acts of possession, the burden is thrown on the defendant under Section 145 of the Evidence Act to prove the contrary. In order to get the judgment, the defendant has the onus to rebut the evidence of the plaintiff.
…Acts of long possession and enjoyment of land can be prima facie evidence of ownership of the particular piece of land within reference to which such acts are done.”
See also: ONYEKAONWU v EKWUBIRI (1966) 1 ALL NLR 32, (1996) 2 SCNLR 369; OYEYIOLA v ADEOTI (1973) NNLR 10; ODI v OSAFILE (1978) 2 NWLR (PT. 57) 510.

The arising question is whether the Appellant being able to act as a shadow on the case of the Respondent or prove that he has been in possession long before the Respondent? I answer in the negative.

Weighing the case of the parties on the proverbial scale of justice/balance of probabilities, I agree that the Respondent has been able to prove that it is entitled to the declaration of possessory right over the land in dispute.
I resolve this issue against the Appellant.

ISSUE 2
Exhibit C1 is the Respondent’s Deed of Conveyance which he pleaded at paragraph 4 of his statement of claim at page 6 of the record thus:
“4. Upon payment of the above purchase price by the Claimant to its aforesaid Vendor, Mr. Afam Okpuno, the latter executed a Deed of Conveyance dated 4th April, 2006 in favour of the Claimant evidencing the said transaction. The said Deed is hereby pleaded and will be relied upon as a receipt or evidence of the Claimant’s payment of purchase price for the aforesaid land to the above Vendor and same is hereby annexed as Annexure “A”. (UNDERLINING MINE)

The Respondent from the above tendered Exhibit C1 as receipt/evidence of its payment of purchase price for the land.

Therefore, I believe that Exhibit C1 is admissible as evidence of payment of purchase price and the lower Court rightly admitted it.
I resolve this issue in favour of the Respondent.

ISSUE 4
Flowing from my resolutions in the above issues that the Respondent proved its equitable title to the land in dispute, exclusive and prior possession of the said land in dispute and interference with its said exclusive possession by the Appellant, thus entitling the Respondent to an award of damages for trespass and injunction.
I resolve this issue in favour of the Respondent.

On the whole, I find that the Respondent has been able to establish exclusive possessory rights over the land in dispute and was therefore entitled to the orders granted by the lower Court.

The appeal is therefore lacking in merit and is accordingly dismissed. The judgment of Honourable Justice C. O. Ogisi sitting at the High Court of Justice, Delta State, Asaba, Judicial Division delivered on 29thApril 2014 wherein judgment was entered in favour of the Respondent is hereby affirmed.
Parties to bear their costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The Respondent proved a better right to the land from his possession of the land following the evidence led. On the contrary, the Appellant was unable at the trial Court to establish any title to be able to defeat the Respondent’s proof of equitable title established by the payment of purchase price (money) evidenced by payment receipt and possession (occupation of the property, for years before the Appellant’s interference and challenge).

The evidence of title by the Appellant is fluid; and can not overrun the Respondents.

The appeal has no terra.
I agree with my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA.

JOSEPH EYO EKANEM, J.C.A.: I read in advance, the lead judgment of my learned brother, OBASEKI-ADEJUMO, JCA. which has just been delivered. I agree with the reasoning and conclusion therein that the appeal lacks merit.

For the reasons set out in the lead judgment, I also dismiss the appeal and affirm the decision of the trial Court.

Appearances:

J. I. Odebili For Appellant(s)

Respondent served Hearing Notice on 7/3/2022 For Respondent(s)