GILBERT OLADEINDE MEADOWS & ANOR v. ROTIMI FABANWO (2013)

GILBERT OLADEINDE MEADOWS & ANOR v. ROTIMI FABANWO

(2013)LCN/6551(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

CA/L/81/2009

RATIO

FIVE LEGALLY RECOGNIZED METHODS OF ESTABLISHING OWNERSHIP OF LAND

It is apparent that the Claimant (Respondent in the Court below) is claiming the same relief as the 2nd Appellant (2nd Defendant in the Court below and who cross-appealed). But there are five legally recognized methods by which ownership of land may be established which are:
(i) Proof of traditional history or traditional evidence.
(ii) Proof by grant or the production of documents of title.
(iii) Proof by acts of ownership extending over a sufficient length of time; numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
(iv) Proof by acts of long possession; and
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute – IDUNDUN V. OKUMAGBA 1976. 9 & 10 SC 277 at 246 – 250. Per RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. GILBERT OLADEINDE MEADOWS
2. MICHAEL ADEWALE Appellant(s)

AND

ROTIMI FABANWO Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of Hon. Justice A. A. Philips of the High Court of Justice, Lagos State delivered on the 20th day of October 2006, in which the lower court entered Judgment in favour of the claimant (the Respondent herein) against the Defendants (Appellants herein) and dismissed the counter-claim of the 2nd Defendant/Appellant. The claimant/Respondent was given Judgment in respect of the first head of claim for declaration of title to the land. The Appellants are dissatisfied with the Judgment and have appealed it.
SYNOPSIS OF FACTS
The Respondent (as Claimant) instituted an action in the lower court against the Appellants (as Defendants) claiming, in his Amended Statement of Claim dated 1st June 2000 the following:
(i) A declaration that the plaintiff is the lawful owner and is entitled to the Statutory Right of Occupancy of the parcel of land measuring 585.276 square metres, situate and lying at Ibadan Close, Opebi, Ikeja, Lagos, more particularly shown and delineated on Survey Plan No.SBS/204A,97L, prepared by Land Surveyor Sunday Saidi.
(ii) N2 Million Professional Fees due to the plaintiff from the 1st Defendant.
(iii) N127,000.00 (One Hundred and Twenty Seven Thousand Naira) being Special Damages from loss incurred by the plaintiff by reason of the Defendants, act of trespass.
(iv) N3 Million special damages.
While the 1st Defendant/Appellant, filed an Amended statement of Defence dated 16th June 2005, the 2nd Defendant/Appellant filed a statement of Defence and counter-claim dated 29th September 2000 which he claims as follows:
(i) A Declaration that the Plaintiff is the one entitled to the grant of the Governors consent in respect of one plot of land measuring 585,309 square metres situate at Ibadan Close, Off Afolabi Awosanya, Off Agbaoku Street, Opebi, Ikeja, Lagos (more particularly delineated in the Survey Plan No.OGEK 96/96 dated 15th February 1996) by virtue of the purchase receipt dated 5/1/96 and Deed of Assignment dated 19th February 1996.
(ii) A Declaration that the plaintiff is the one entitled to possession and was in possession of the said land at all times material to this suit.
(iii) A Declaration that the 1st Defendant’s invasion, trespass or encroachment on the plaintiffs land aforesaid either by himself or through his agents violates the Plaintiffs title and right to possession and is therefore illegal, wrongful and unconstitutional.
(iv) An Order of Perpetual Injunction restraining the Defendants either by themselves, their agents, servants or privies from invading, encroaching, trespassing or further trespassing on the plaintiffs land.
(v) The sum of N50,000,00 as general damages for the 1st Defendant’s trespass on the plaintiffs land.
(vi) The sum of N100,000.00 as Special damages for the destruction of the plaintiffs erected gate.
At the hearing of the case, the Respondent testified as PW1 and called two witnesses, while the Appellants testified as DW1 and DW2 respectively.
At the close of the case, final addresses were filed and exchanged by the parties. In her Judgment, Philips J. granted part of the Respondent’s claims and dismissed the 2nd Appellant’s Counter-Claim.
The present appeal is against the Judgment of Hon. Justice A. A. Philips (Mrs.) granting the Respondent’s claim for declaration of title over the land in dispute.
The Appellants, pursuant to the Practice Direction of this Court filed a Notice of Appeal on the 19th of January 2007 encapsulating seven (7) Grounds of Appeal – pages 163-168 of the Record of Appeal.
The parties filed their respective briefs of argument.
The Appellants filed their brief of argument on the 19th of August 2010 but same was deemed filed on the 6th of June 2011. It is settled by Rotimi Jacobs Esq,
The Respondent’s brief which was filed on the 15th of January 2013 was deemed filed on the 22nd of May 2013. It is settled by L.A. Kokumo Esq.
The Appellants also filed a reply brief on the 28th of February 2013, but same was deemed filed on the 22nd of May 2013.
The Appellants had proffered and distilled two issues for determination in their brief of argument. They are:
(1) Whether the Respondent who was the Claimant in the Lower Court, proved his title to the land measuring 585.257sq metres situate at Ibadan Close, Opebi, Lagos to entitle him to the Judgment entered in his favour by the lower court. (This ground is distilled from Grounds 3, 4 and 7).
(2) Whether the purported title of the Claimant/Respondent was first in time as against the title of the 2nd Appellant to warrant granting the claim of the Respondent and the dismissal of the 2nd Appellant’s counter-claim as was done by the lower court (See grounds 1, 2 and 5).
On his part, the Respondent proffered and distilled two issues for determination and they are:
(1) Whether having regard to the evidence by the parties in this case, the learned trial judge was right to have granted the Respondent’s claim of declaration as the lawful owner and person entitled to the Statutory Right of Occupancy of the parcel of land measuring 585.257 square metres, situate and lying at Ibadan Close, Opebi, Ikeja, Lagos.
(2) Whether having regard to the evidential value placed by the learned trial judge on Exhibits D7-D7, the 2nd Appellant’s counter’ claim was properly dismissed.
On the 5th of November 2013, the parties adopted their respective briefs of argument.
While the Appellants urged Court to allow the appeal, the Respondent urged this Honourable Court to dismiss the appeal.
It seems to me that the Respondent’s issues for determination aptly captions and adopts in essence the issues for determination formulated by the Appellants.
I shall therefore determine this appeal on the issues proffered by the Appellants.

ISSUE NO. 1
It is the argument of the Appellants that declaration of title based on a mere receipt or an equitable interest such as Exhibits P1 and P2, which the Respondent relied on cannot pass title to the Respondent, citing COLE V. FOLAMI (1956) SCNLR. Page 180 at 184.
He argued that Exhibits P1 and P2 which are receipts of purchased issued to the Respondent by the 1st Appellant dated 1/4/98 and 29/05/98 respectively, do not pass title to him. That a declaration of title cannot be based on a mere receipt, or even an equitable interest such as Exhibits P1 and P2 which the Respondent relied upon.
He submits that the legal interest of the land still remained with the 1st Appellant’s family. He argues that a declaration of title cannot be predicated on such an equitable interest.
He submits that the only relief available to the Respondent was for an order of specific performance of the contract of sale of the land in dispute and not to base his claim on title.
He urges Court to hold that the Lower Court was wrong in placing reliance on Exhibit P1 and P2, and declaring the Respondent as the rightful owner of the land in dispute.
He submits that production and/or reliance on such instruments must be based on inquiry into some or all of a number of questions including
(1) Whether the document is genuine and valid.
(2) Whether it has been duly executed, stamped and registered.
(3) Whether the guarantor had the authority and capacity to make the grant.
(4) Whether the guarantor had in fact what he purported to grant and
(5) Whether it has the effect claimed by the holder of the instrument – ROMAINE V. ROMAINE (1992) 2 NWLR (Pt.238) 650 @ 662; KYARI V. ALKALI (2001) 11 NWLR (Pt.724) 412 at 440.
He argues that the onus rests squarely on the Claimant to show that he met the conditions stated above, but that the lower Court shifted the onus on the 1st Appellant, to prove that the contents of Exhibits P1 and P2 were contrived. That it is the Plaintiff that is in law required to prove its case and not to rely on the weakness of the Defendants’ case.
He argues that the price of the plot allegedly offered the Respondent was not stated on Exhibit P1. It is only in Exhibit P2 that N30,000 was said to have been paid, being the final installment payment. Also the word the “total amount paid N400,000.00” was inserted in Exhibit P2.
That in the Respondent’s pleadings, he stated that the price of the land was N400,000.00 but in a letter dated March 14th 2000, the Respondent referred to the sum of N450,000.00 (Four Hundred and Fifty
Thousand Naira) as purchase price.
He argues that the Lower Court failed to evaluate the evidence before him to ascertain the purchase price, but rather made a finding, that oral evidence could not contradict documentary evidence.
He argues that Exhibits P11 and P16, being documentary evidence, this finding of the Lower Court has no basis. That what the Respondent did was to give contradictory evidence.
He submits that the receipt must state the consideration, a description of the property and the material terms of the contract, referring to Section 5(2) of the Law Reform (Contracts) Law of Lagos State Cap. L63. Laws of Lagos State 2003.
He submits that Exhibits P1 and P2 do not sufficiently describe the land in dispute as required by law. He submits that in the instant case, Exhibits P1 and P2 merely described the land as a plot of land at Ibadan Close, Opebi, Lagos. That this description is grossly inadequate.
That Exhibits P1 and P2 did not contain the agreed terms, they did not state the consideration, the amount previously paid and the balance due. That it cannot be a proper receipt which the 1st Appellant could rely on and upon which title could be granted to the Respondent.
He submits that it was the case of the 1st Appellant that Exhibit P2 was altered by the Claimant/Respondent. But that the lower Court discountenanced this fact. He urges court to look at Exhibit P2 critically. That the 1st Appellant complained on his evidence that the alterations were made by the Respondent without his approval – citing BAYO V. NJIDDA (2004) 8 NWLR (Pt.876) 544 at 622.
Citing the case of FAKOYA V. ST. PAUL CHURCH SHAGAMU (1966) 1 All NR 74, he submits that an unregistered receipt such as Exhibits P1 and P2 are only admissible to prove equitable interest, which is only enforceable through an order of specific performance.
The Appellant submits that Exhibits P1 and P2 were not registered contrary to sections 2 and 15 of the Land Instrument Registration Law of Lagos State 2003, Cap L58. That there is no equitable relief claimed. In other words, so specific performance was sought.

ISSUE NO 2
The Appellant submits that the narrow issue that calls for determination is whether the Claimant/Respondent or the 2nd Defendant/Appellant had a better title to the land based on the material evidence placed before the Court. He submits that despite the evidence given by the Defendants/Appellants and Exhibits tenders by them, the learned trial Judge held that the documents of title of the Claimant/Respondent was first in time which formed the basis of the Lower Court giving Judgment in favour of the Respondent.
That evidence given by the Claimant/Respondent were Exhibits P1 and P2 which are receipts dated 1/4/1998 and 29/5/1998 respectively. That the 2nd Defendant/Appellant tendered Exhibit D1 which is a photocopy of receipt dated 5/1/96 and Exhibit D2 – photocopy of Deed of Assignment dated 19/2/1996.
That there is credible evidence that the land in dispute was sold to the 2nd Appellant by the 1st Appellant in 1996. The Claimant/Respondent bought same land from the 1st Appellant in 1998, two years after the 2nd Appellant had acquired his interest in the property.
That as the 1st Appellant had transferred his title on the land to the 2nd Appellant in 1996, there was nothing to sell to the Respondent in 1998.
Urges Court to hold that failure of the trial Judge to give effect to the unchallenged and credible evidence of the 1st Appellant that it was the 2nd Appellant that he first sold the land in dispute to in 1995, has led to a miscarriage of justice and is therefore perverse.
In his brief of argument, the Respondent has submitted that he did not claim for declaration of title to land, but that the declaration is to the effect that the Respondent is the lawful owner and person entitled to the statutory right of occupancy. He submits that a claim of lawful ownership of land in law can be based on equitable or legal interest.
He submits that the lower Court did not grant a declaration of title over land in his favour.
That the Appellants did not challenge the competence of the Respondent’s claim at the lower Court based on Exhibits P1 and P2, and cannot now do so, as to do so would amount to raising a new issue on appeal.
He submits that the plank of the case in the lower Court is that the land was not sold to the Respondent by the 1st Appellant and that Exhibits P1 and P2 were forged by the Respondent. The case was not therefore forged at the lower Court on the basis that the only relief available to the Respondent is an order of specific performance.
He submits that parties in the lower Court did not join issues on their pleadings with regards to the issue of specific performance neither was the learned trial Judge given an opportunity to pronounce on it.
He submits that the grant of a declaratory relief is discretionary and it will only be granted when the Court is of the opinion that the party seeking it is fully entitled (when all facts are taken into consideration) to the exercise of the Courts’ discretion in his favour – ODOFIN V. AYOOLA (1984) 11 SC. 72; MAKANJUOLA V. AJILORE (2001) 12 NWLR (Pt.727) 416.
He submits that the learned trial Judge was only called upon to decide who between the Respondent and the 2nd Appellant has a valid claim to the land.
He submits that the Judgment of the learned trial Judge was based on all legal evidence before the Court, including the pleadings and evidence.
He urges this Honourable Court to take a critical look at the evidence presented by both sides in proof of their respective claims. He submits that at all material times relevant to this case, the Respondent was in possession of the disputed land. He argues that there is therefore a rebuttable presumption in law, that he is the owner of the land. That the case of the Respondent upon which he based his claim at the lower Court is that he purchased the property from the 1st Appellant. All that the Law requires of him in order to constitute a valid sale to him is to plead and prove the following:
(1) Payment of purchase price
(2) Evidence that he was let into possession and
(3) The act of delivery of possession to be in the presence of witness.
COLE V. FOLAMI (1956) SCNLR 180; AKINKUGBE V. ELEMOSHO (1964) 1 All NLR. 154; ODUSOGA V. RICKETTS (1997) 7 NWLR (pt.511) 1.
He submits that Exhibits P1 and P2 are the evidence of payment of the purchase price. That the Respondent at page 29 of the Record of Appeal testified as to his acts of possession.
That the evidence of how the Respondent was put into possession and the various acts of possession exercised by him over the land remain unchallenged and uncontroverted. Refer to Exhibits P10 and P16 as acts of possession of the Respondent.
He submits that the learned trial Judge correctly applied the principle of priority of proof of title to land to the facts of this case.
The claim of the Respondent (Claimant in the Court below) had been reproduced earlier in this Judgment. It is inter alia for a DECLARATION that the Plaintiff – Rotimi Fabanwo is the lawful owner and is entitled to the statutory rights of occupancy of the parcel of land measuring 585.276 square metres, situate and lying at Ibadan Close, Opebi, Ikeja, Lagos more particularly shown and delineated on Survey Plan No. SBS/204A/971, prepared by Land Surveyor Sunday Saidi.
The Amended Statement of Claim of the Respondent tells in its 34 paragraphs how he came about the land in dispute. However paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Amended Statement of Claim are apt. I hereby reproduce same.
Paragraph 7: Upon surveying the undeveloped part of the land the plaintiff requested the 1st Defendant to sell a remaining plot of land which is less than a full of plot of land of 60’s/120 at an agreed price of N400,000 (Four Hundred Thousand Naira) and the 1st Defendant sold other plots of land to willing buyers.

Paragraph 8: It was the agreement between the Plaintiff and the 1st Defendant that the 1st Defendant shall pay the Plaintiff 10% of the cost of any land sold through the efforts of the Plaintiff and also 10% of the total sum of money collected from the house owners on the 1st Defendant’s land which commission shall go to the payment or part payment of the land sold to the Plaintiff by the 1st Defendant.

Paragraph 9: The Plaintiff avers that the first person to buy the land at the said location is Engineer Kunle Akindoju in November, 1997.

Paragraph 10: Because of the trust the said Engineer Kunle Akindoju has in the Plaintiff he made a deposit of N500,000 (Five hundred thousand Naira) out of the agreed N1 Million for the plot of land before the possession of the land was taken by the 1st Defendant, and when Engineer Kunle Akindoju took possession of the land he paid the balance of N500,000 (Five hundred thousand Naira) to the 1st Defendant.

Paragraph 11: The Plaintiff avers that he used his commission of N100,000 (One hundred thousand Naira) to deposit for the plot of land subject matter of this suit in November 1997.

Paragraph 12: The Plaintiff avers that he demanded for a receipt of the said deposit, but the 1st Defendant assured him he will give one receipt and agreement to cover all payments otter conclusion of payment.

Paragraph 13: The Plaintiff believing he was dealing with a respectable credible old man and client agreed with the arrangement.

Paragraph 14: It was along the line in the plaintiffs relationship with the 1st Defendant that the Plaintiff discovered that the 1st Defendant is not a man who stand by his words as regards his instruction to the Plaintiff. Several times the 1st Defendant gave instructions upon which the Plaintiff acted which turned round to deny.

Paragraph 15: Based on the 1st Defendant’s slufly and oscillating nature, when the Plaintiff was about to complete payment of the land subject matter of this suit by cash payments the Plaintiff insisted on receipts from the 1st Defendant to show there was a transaction between the parties. Upon the Plaintiff insistence, the 1st Defendant agreed and asked the Plaintiff to draft the receipts for him to sign which the 1st Defendant did sign.

Paragraph 16: The Plaintiff avers that the agreed purchase price was paid installmentally until final payment on the 29th of May, 1998. The Plaintiff shall rely on the receipts of payment dated 1st April, 1998 and 29th May, 1998 at the trial of this suit.

Paragraph 17: The Plaintiff also avers that the engaged a Licenced Surveyor Mr. Sunday Saidi to survey the land in 1997 after he was put in possession by the 1st Defendant and the Surveyor produced a Survey Plan No SBS/204A/97. Plaintiff shall rely on the Survey Plan at the trial of this suit.

Paragraph 18: The Plaintiff avers further that he exercise further proprietary rights over the land by fencing it with a gate and allowed a farmer to cultivate the land. The Plaintiffs Land is next to Engineer Akindoju’s land and the fence between the two of them was made by joint efforts.

Paragraph 19: The Plaintiff avers further that he also connected pipe borne water to the land, engaged an architect Mr. Tokunbo Fowode to do a drawing of the Plaintiffs proposed house and an engineer to do structural drawings while he deposited two trailer load of granite and some blocks, and other building materials on the land in anticipation of commencing construction. Upon the encouragement he received from the 1st Defendant, Plaintiff shall rely on the photographs and negatives of the water tap and some building materials he has on the land at the trial.

Paragraph 20: The Plaintiff avers that in view of the general economic recession, he was unable to start the development but the farmer continued to farm on the land through the permission of the plaintiff.

Paragraph 21: The Plaintiff avers that this was the position until December 1999 when the Plaintiff received a letter from the Defendant instructing him not to act for the 1st Defendant again, not knowing it was a design by the 1st Defendant to snatch the Plaintiffs land. Plaintiff shall rely on the letter dated 29th December, 1999 at the trial of this suit.

Paragraph 22: The Plaintiff also avers that he received a letter from a Firm of Solicitors Rotimi Jacobs & Co. asking the Plaintiff not to sell the land as they claimed the plaintiff has no interest whatsoever on the land. Plaintiff shall rely on the letter dated 8th March, 2000.

In the 1st Defendant/Appellant’s Amended Statement of Defence, he denies the aforementioned paragraphs in the Amended Statement of Claim and states in essence that the 2nd Defendant/Appellant had acquired title to the land, subject matter of this suit, consisting of a plot since 1996 long before the 1st Defendant/Appellant met and engaged the services of the Plaintiff.
It is his case also that he never had any transaction with the Respondent regarding the land in dispute.
The 2nd Defendant/Appellant in paragraphs 9, 10, 11 of his Statement of Defence and Counter-claim confirmed that he made enquiry whether land was available for sale from the 1st Defendant, who said yes. Therefore, as averred in paragraph 14, he made money available as deposit for the land.
Having made payment, the 1st Defendant/Appellant directed the 2nd Defendant/Appellant to carry out the survey of the plot of land. A Deed of Assignment was executed on the 19th of February 1996 between the 1st Appellant and the 2nd Appellant in respect of all that one plot of land at Ibadan Close, Abule Onigbagbo, Opebi, Ikeja, Lagos State in the Survey Plan No. OGEK 96/96 dated 15/02/96 drawn by Chief S. Akin Ogunbiyi (registered surveyors) attached and having an area of 585.300 square metres.
Exhibit P1 is a receipt for the sum of N25,000 (Twenty five thousand Naira Only) for the Respondent and from the 1st Appellant, being final payment in respect of a plot of land at Ibadan Close, Opebi, Lagos. It is dated 1st April 1998.
Exhibit P2 is a receipt of the sum of N30,000 (Thirty thousand Naira Only) from the Respondent being final installment of purchase price of a plot of land at Ibadan Close, Opebi, Lagos State. It states total amount paid – N400,000. It is dated 29th of May 1998. Exhibit P3 is Survey plan in respect of property said to belong to the Respondent at Ibadan Close, Opebi, Ikeja Local Government Area, Lagos State. It is drawn by one Sunday Saidi. It is undated.
Exhibits P11 and P16 are letters dated 14th March 2000 and 20th March 2000 respectively in reply to a letter dated 8th March 2000 from one Rotimi Jacobs & Co. Solicitors.
In the letter dated 14th March 2000, the Respondent did say that the land the subject matter of the suit in the Court below was sold to him by Mr. G. O. Meadows at an agreed price of Four Hundred and Fifty Thousand Naira Only which money was paid instalmentally. He was put in possession of the land and was encouraged by Mr. Meadows to develop.
There was no Deed of Assignment between the 1st Appellant and the Respondent.

There is nothing to show that the 2nd Appellant was ever in possession of the piece of land, the subject matter of the suit in the Court below. It is the story of the Respondent as PW1 in the proceedings that one Engineer Akindoju commenced the survey of his own plot after which one Surveyor Saidi carried out a survey of the whole area at the instance of the Meadows family.
In an action for declaration of title, a Claimant can only succeed in the strength of his own case and not on the weakness of the defence. KODINLINYE VS. ODU 1935 2 WACA 336 @ 337.

It is apparent that the Respondent and the 2nd Appellant both seek to establish their statutory Right of occupancy over the land in dispute under the 2nd method stated above. This, by producing documents of title.
The Respondent is only relying in Exhibits P1 and P2 which are the receipts. It is trite that for a document to be acceptable, it must satisfy the following enquiries –
(a) Whether it is genuine and valid
(b) Whether it has been duly executed, stamped and registered.
(c) Whether the guarantor had the capacity and authority to make the grant
(d) Whether the guarantor had in fact what he purported to grant; and
(e) Whether it had the effect claimed by the holder of the instrument. These documents were attached by the 1st Appellant into his 1st Amended Statement of Defence dated 16/5/05.
However the 1st Appellant did not produce any Police Report or handwriting expert as a witness to testify. That averment in paragraph 15 is deemed abandoned. This makes Exhibits P1 and P2 viable and credible. They were signed by the 1st Appellant and are dated 1/4/98 and 29/5/98 respectively. They were stamped by the 1st Appellant.
The 2nd Appellant tendered a receipt for the sum of N50,000.00 dated 5/1/96 issued by the Meadows Family and an unregistered Deed of Assignment dated 19/2/76. Exhibits D3 – D6 are documents issued by the Lagos State Government for the processing of a Certificate of Occupancy.

It seems to me, as the learned trial Judge has rightly observed that the payments made in Exhibits D4, D5 and D6 were made during the pendency of this case, as this matter was instituted in June 2000 and Exhibits D4, D5 and D6 are stamped 22nd September 2000, during the pendency of this suit.
This is fatal to the 2nd Appellant’s case.
The 1st Defendant/Appellant denied selling the land in dispute to the Respondent, but that he sold it to the 2nd Defendant/Appellant.
I see that the Respondent’s Exhibits P1 and P2 are dated 1/4/98 and 29/5/98 respectively, while the 2nd Defendant/Appellant’s documents are dated 5/1/96 and 19/2/96.
But the question is whether the land in dispute was available for sale in 1996.
At page 21 of the Judgment of the lower Court (page 159 of the Record of Appeal), the learned trial Judge had this to say inter alia
“Looking at the evidence of the Claimants witnesses and that of the Defendants as a whole I am inclined to believe that the 1st Defendant’s family employed the services of the Claimant in 1997 because they could not gain possession of the property at Opebi because it was in the possession of the late ARCH LAYI BALOGUN a fact that the 1st Defendant admitted to under cross-examination by learned counsel for the Claimant on 21/3/05 when he stated as follows:
….Yes the Claimant did the job very well, Yes it is true that as at 1996 my family was unable to take possession of the land because it was in the firm grip of Arch. Layi Balogun…”

The question remains, as rightly observed by the learned trial Judge –
“If the land was in the firm grip of Arch Layi Balogun, how could he have taken the 2nd Defendant/Appellant to the land, shown it to him and sold it to him in 1996? Furthermore which person in his right mind would pay N1,000,000.00 for a plot of land that was in the firm grip of someone other than the person professing to own it? I would like to believe that no reasonable person would do that.”

The Respondent it was that was commissioned to conclude the execution on the land, in his capacity as a Legal Practitioner, which he concluded in 1998. He says he has not even been paid by the 1st Appellant.
I agree with the opinion of the learned trial Judge that more weight be attached to Exhibits P1 and P2 than Exhibits D1 – D7 as they appear to be contrived to meet this action.
The Respondent’s submission that the issue of specific performance did not come up at the lower Court is true. This issue cannot therefore be considered before this court, and same is hereby discountenanced.
The grant of a Declaratory Relief is discretionary. Therefore, where a court is of the view that the party seeking same would possess facts, credible enough to enable the court, exercise its discretion in no other way but in his favour. MAKANJUOLA v. AJILORE (2001) 12 NWLR (Pt.727) 416, he would do so without looking back.
Such discretion must however be exercised not only judicially but judiciously.

That first claim as adumbrated in paragraph 36 (1) of the Amended Statement of Claim is
“A DECLARATION that the plaintiff is the lawful owner and is entitled to the statutory Rights of occupancy of the parcel of land measuring 585.276 square metres situate and lying at Ibadan Close, Opebi, Ikeja, Lagos more particularly shown and delineated on survey plan No SBS/204A/971 prepared by Land Surveyor Sunday Saidi”
There is evidence of payment by the Respondent in Exhibits P1 and P2, coupled with evidence that the Respondent was in possession of the land. It is my view that the genuineness of Exhibits P1 and P2 is not what is in issue in this matter, but whether the Respondent was seized of possessing title to the property and entitled to a grant of statutory Right of Occupancy to the land in dispute, as against the Appellants. Afterall possession is decidedly good against all the world except the person who can show a good title –
NASIRU V. ABUBAKAR (1997) 4 NMLR pt.497 at 32 @ 46.
The Appellants had argued, that Exhibits P1 and P2 merely described the land as a plot of land at Ibadan Close, Opebi, Lagos. But with respect, the parties are agreed that that is a sufficient description of the land. See paragraph 4 of the Amended Statement of Claim (page 3 of the Record of Appeal) and paragraph 2 of the 1st Defendant’s Amended Statements of Defence (page 7 of the Record of Appeal) and indeed paragraph 1 of the 2nd Defendant’s Amended Statement of Defence and Counter-claim (page 19 of the Record of Appeal).
Therefore, it is true that the parties are agreed as to the true identity of the land in dispute. Indeed the 1st Appellant is in a better position to describe the land, vide the receipt which he issued to the Respondent.
Exhibit P1 and P2 describe the amount paid. Indeed Exhibit P2 states that the sum of N30,000 is the final payment made and that the total amount paid is N400,000.00. The Appellants were not misled by Exhibits P1 and P2. At least, they did not say so.
A cursory look at Exhibits P1 and P2, it seems to me that there was no alteration of same as alleged by the 1st Appellant. After all he signed Exhibits P1 and P2. They were stamped by him.
The 2nd Appellant has in his possession a receipt for the sum of N50,000.00 dated 5/1/96 issued by the Meadows family and also an unregistered Deed of Assignment dated 19/2/96. It is said that the sum of One Million Naira was paid for the land in dispute.

The learned trial Judge had observed that Exhibits D3 – D6 were documents issued by Lagos State Government for the processing of a Certificate of Occupancy and were made during the pendency of this matter. As such she discountenanced same and I quite agree with him. The view of the learned trial Judge that the 2nd Defendant could not have been seized of the land in dispute in 1996 when the land was in the firm grip of Arch Layi Balogun, is tenable and I agree with him. He had a discretion to put the respective cases of the parties on an imaginary scale in order to decide which of them had a superior title.

He held thus
“I feel therefore that the Claimant has shown a title to the land in dispute that is superior to that of the 2nd Defendant despite the evidence of the 1st Defendant that it was the latter that he sold the land to. I accordingly hold that the Claimant is the person entitled to his 1st claim and I so hold.” – page 159 of the Record of Appeal.
The answer to Issue No 1 is in the affirmative and same is resolved in favour of the Respondent and against the Appellants.

On Issue No 2 – “WHETHER THE PURPORTED TITLED OF THE CLAIMANT/RESPONDENT WAS FIRST IN TIME AS AGAINST THE TITLE OF THE 2ND APPELLANT TO WARRANT GRANTING THE CLAIM OF THE RESPONDENT AND THE DISMISSAL OF THE 2ND APPELLANT’S COUNNTER-CLAIM AS WAS DONE BY THE LOWER COURT”

The answer to this must necessarily be in the affirmative. In other words, as earlier adumbrated in my resolution of Issue No 1, as at the time the 2nd Appellant purported to be issued receipts by the 1st Appellant, the land in dispute was in the hand of someone else exclusively and could not have been sold to the 2nd Defendant by any member of the Meadow family. There was as at that time no vacant plot of land. The 1st Appellant had also admitted that the family did not have access to the land in dispute as at 1996.

Under cross-examination by learned counsel for the claimant/Respondent on the 21st of March 2005, he stated as follows:-
“Yes the claimant did the job very well. Yes it is true that as at 1996, my family was unable to take possession of the land because it was in the firm grip of Arch. Layi Balogun” – (page 54 of the Record of Appeal.)
When the learned trial Judge said that Exhibits D1 – D7 appear to be contrived to meet this action, I agree entirely with this view.
When the learned trial Judge observed that no reasonable person would pay the sum of one Million Naira for land that was in the firm grip of a third party rather than the vendor, he was right.
It was not possible for the 1st Appellant to sell the land in dispute to the 2nd Appellant until the Respondent concluded the execution and that was in 1998.
This issue is resolved in favour of the Respondent and against the 1st Appellant.
The appeal is bereft of merit and same is hereby dismissed. The Judgment of A. A. Phillips delivered on the 20th of October 2006 in Suit No.ID/1448/2000 is hereby affirmed.
No order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Rita Nosakhare Pemu, J.C.A., traversed all the issues raised in the appeal in the lucid judgment prepared by his lordship which I had the advantage of reading in draft and with which I agree and adopt as my own judgment with a few words on priority of title, by way of emphasis.
Having found as a fact by the court below that the 2nd appellant had not proved title to the disputed piece of land by purchase, as one of the vital ingredients of letting the 2nd appellant in possession of the disputed piece of land by the vendor, the 1st appellant, was not established, the principle of he who is earlier in time is stronger in law did not enure to the 2nd appellant to override and/or have priority over the respondent’s title to the disputed land which was found fully established to the effect that the purchase price was paid and the respondent was let in possession of the disputed piece of land by the vendor.
Priority of title would only be invoked where the equities are equal. So, the 2nd appellant’s case that he bought the disputed piece of land in 1996, while the respondent bought it in 1998, cannot bring into operation the principle of priority of title, as the 2nd appellant did not prove title by purchase which he had pleaded and relied upon at the court below; unlike the respondent who had pleaded and proved complete title by purchase to the disputed piece of land. See Ugbo v. Aburime (1994) 8 NWLR (Pt.360) page 1, where the Supreme Court held that the principle of priority of title that he who is first in time prevails is only applicable where the equities are equal.
For the reason given (supra) and on account of the elaborate reasons given in the lead judgment, I too see no substance in the appeal and hereby dismiss it and affirm the judgment of the court below (Phillips, J.). Parties to bear their costs.

TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the lead judgment prepared and delivered by my learned brother PEMU, JCA. The lead judgment is detailed, precise and represents the settled position of the law, where there is contention for possession of some parcel of land, it is now firmly settled that the law ascribes possession to person with better title. See AMAKOR vs. OBIEFUNA (1974) 3 S.C. 67, OMONI VS. SIRIYA (1976) 6 SC 49 AT 54.
The respondent was not only in firm grip of the land subject matter of this appeal, but was also shown to have better title, the respondent paid for the land and took possession, and since he was adjudged to have better title, it by necessary implication means there was nothing to sale.
It also appears to be that, the principles ‘Nemo dat quod non habet’ will also apply to situations where land already sold to a party by the owner is subsequently sold by that owner to another party in conflict with the earlier title, the vendor has nothing in law left again to sell. See FAMOROTI VS. AGBEKE (1991) 5 NWLR (PART 189) 1 AT 15.
For the above reasons, and the more elaborate reasons set out in the lead judgment of my learned brother, I must adopt the reasoning and conclusion as mine, which I now do.
The appeal is bereft of merit it is therefore accordingly dismissed, judgment of the court below delivered by Phillips J is also affirmed by me; parties shall bear their costs.

Appearances

Taiwo Ogunleye Esq with Toyosi Kutayi and Oladipupo YeyeFor Appellant

AND

I. A. Kokumo Esq with V. E. Ogunbanjo (Mrs)For Respondent