JAMES OMORUYI v. GABRIEL JOSHUA OBANOR
(2011)LCN/4468(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2011
CA/B/67/2005
RATIO
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN CIVIL CASES
The burden of proof in civil cases generally is on him who asserts or affirms and not on him who denies. However the burden in civil cases is not static. It shifts from side to side depending on the state of evidence led in support of each parties case- Where one party has adduced credible evidence in support of a particular fact the burden then shifts to the adverse party who has the burden to prove that the fact so adduced could not on the preponderance of evidence result in judgment being given in favour of that party. BUHARI v. OBASANJO (2005) 13 NWLR (Pt 941) l. He who asserts must prove IBRAHIM V. OJOMO (2004) 4 NWLR (PT.862) 89 FMF LTD V. EKPO (2064) 2 NWLR (Pt.856) 100. PER GEORGE OLADEINDE SHOREMI, J.C.A.
PROOF OF OWNERSHIP OF LAND: WAYS OF PROVING TITLE OF OWNERSHIP OF LAND
It has been established in the locus classicus of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 and a host of other cases that there are five ways of proving title of ownership of land. They are: (a) by traditional evidence (b) by production of documents of title and executed duly authenticated (c) by acts of ownership extending over o sufficient length of time numerous and positive enough as to warrant the inference of true ownership (d) by acts of having possession and enjoyment (e) by proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See also SALAMI V. LAWAL (2003) 14 NWLR Pt.1108 546 at 574. PER GEORGE OLADEINDE SHOREMI, J.C.A.
DECLARATION OF TITLE TO LAND: CONDITION THAT MUST BE SATISFIED BEFORE A DECLARATION OF TITLE TO LAND IS GRANTED
In ELIAS V. OMOBORE 1982 All NLR 70 It was held that before a declaration of title to land is granted there must be credible evidence describing and identifying the land with certainty as well as establishing the origin of devolution of the title down to the claimant and where the evidence is unsatisfactory as to the description and identity of the land or as to the origin and devolution of title the claim must fail. PER GEORGE OLADEINDE SHOREMI, J.C.A.
INTERFERENCE WITH EVALUATION OF EVIDENCE: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT
The court will not interfere with the evaluation of evidence by the trial court except it is perverse or the trial Judge misdirected himself in law and fact. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
JAMES OMORUYI Appellant(s)
AND
GABRIEL JOSHUA OBANOR Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Iguobazuwa High Court in suit No.HIGU/10/1994 which was delivered on 1/8/2002 wherein the Appellants claims were dismissed and the reliefs of the Respondent as counter claimant were granted.
In his amended statement of claim at pages 62 – 66 the Appellant (the Plaintiff) claimed as follows:
a) A declaration of title to the piece of land measuring 300 feet by 200 feet lying and situate at Iguosa village, along Lagos Road, Benin City having acquire same under Bini Customary law.
b) The sum of N5,000.00 (five thousand naira) damages for trespass and destruction of the plaintiff’s cassava farm, and matches.
c) An order of injunction restraining the Defendant, his agents, privies and servants from further acts of trespass to the land.
d) A declaration that the plaintiff is the person entitled to the certificate of occupancy in respect of the land.
On declaration that the plaintiff is the person entitled to the certificate of occupancy in respect of the land.
On the other hand the Respondent (then Defendant) in his amended statement of defence and counter claims at pages 135 – 142 the Respondent counter claimed as follows:
a) A declaration that the defendant is the owner in possession of piece or parcel of land lying at Iguosa village; Benin City and therefore by section 34(2) of the Lands Use Act, 1978 is the person deemed to be a holder of the statutory right of occupancy in respect of the said piece or parcel of land by virtue of a deed of conveyance registered as No.28 at page 28 in Volume 485 at the land Registry Benin City and thereafter a holder of statutory right of occupancy in respect of that parcel of land verged Red in Plan ISO/ED/15895 dated 10th March 1995 and filed herein with the statement of defence and counter-claim.
b) N1,000.00 (One thousand naira) being damages for trespass in that on or about 2nd day of April 1994 the plaintiff broke and entered into the said piece or parcel of land without the defendant’s consent and therein committed several acts of trespass.
c) Perpetual injunction restraining the plaintiff either by himself servants or agents or howsoever from entering the said piece or parcel of land.
The matter went for trial and after evidence were given and exhibits tendered by both parties, the learned trial judge gave judgment in favour of the Respondent. Judgment of the trial court is at pages 162-197. The relevant part of the judgment is reproduced hereunder –
“After careful comparison of both exhibits 5 and 6. I am satisfied and find as a fact that the area verged Red in exhibit 5 is the same as the area verge pink in exhibit 6. In other words, the parties are disputing over one and the same parcel of land.
Therefore the land which the Oba of Bini gave approval on 14/7/74 in exhibit A and that approved by the Oba on 20/12/72 is exhibit 10 are one and the same parcel of land.
The second and next issue for consideration is who among the parties has proved better title to the land in dispute. The respective roots of title relied only the parties are exhibits A and 10. exhibit A is the Oba’s approval in favour of the plaintiff while exhibit 10 relates to an approval by the Oba in favour of law Uyigue from who the Defendant/Counter-Claimant claimed to have obtained a Transfer of the land.
Exhibit A was approved by the Oba on 14/7/74. Exhibit 10 on the other hand was approved by the same Oba on 20/12/72. The applications for the Oba’s approval in respect of the plot of land of the plaintiff and the Defendant/counter claimant were channelled through the same plot Allocation Iguosa.
It is therefore clear that the approval by the Oba with regards to the land in dispute exhibit 10 preceded his approval in respect of exhibit A.
Accordingly, the Defendant/Counter-claimant’s predecessor-in-title Late Uyigue in respect of the land in dispute obtained an earlier approval of his grant than the plaintiff.
Consequently, the plaintiff s claim for title to the land in dispute hereby fails, pursuant to the time honoured maxim that where the equities are equal, the first in time prevails. In the Finnith case supra the Supreme Court had cause to pronounce thus:-
“Under Bini Customary Law, where there is a grant of the same land to two people, the earlier grant is superior to and better than the latter one.”
The 3rd and final issue for consideration is who is in possession of the land in dispute. At the time the purported grant was made by the Oba to the Plaintiff a grant had already been made to the Defendant/Counter-claimant’s predecessor-in-title. The plaintiff therefore got nothing. The Plaintiff had neither title nor legal possession. If the Plaintiff was on the land, he was there as a trespasser. The claim of the Plaintiff for declaration of title damages for trespass and injunction fails.
On the other hand, the grant to the Defendant/Counter-claimant’s predecessor-in-title (Uyigue) as per exhibit 10 was approved by the Oba on 20/12/72, while the grant to the Plaintiff as per exhibit A was granted by the Oba on 14/7/74. Thus, the grant to or acquisition by the Defendant/Counter-Claimant is over two years older than the grant or acquisition by the Plaintiff. The Defendant/Counter-Claimant’s title is prior and superior to the Plaintiff s title and therefore a better title, being earlier in time.
I therefore hold, that the Defendant/Counter-Claimant acquired legal title to the land in dispute before the Plaintiff therefore the defendant/Counter-Claimant has title to the land in dispute.
As to possession, the Defendant/Counter-Claimant plan exhibit 6 showed clearly the dimension of the exact land he acquired from late Uyigue to which the land in dispute forms a part. He also showed the portion of the land the Federal Housing Authority (FHA) acquired from him compulsorily. Key No.6 of exhibit 6 showed evidence of buldozing by the Defendant/Counter-Claimant. Exhibits 12 and 17 are the Deed of Conveyance in respect of the land which showed that he bought from Uyigue, and Edosomwan and the Oba of Bini conveyed same to him. He also tendered exhibits 10 and 15 which are Oba’s approvals. He also tendered exhibit 13 which is receipt for bulldozing and the area in dispute fell within the area bulldozed. Exhibit 11 showed the property survey in 1977 and exhibit 9 is the purchase Receipt which Uyigue gave to him.
Consequently, I hold that the Defendant/counter-claimant has proved that he has possession.
In the final result, I hold that the plaintiff has failed to prove his claim.
On the other hand the Defendant/Counter-Claimant has proved his counter-claim”.
It is against this judgment that the Appellant filed a notice of appeal where he filed one ground of appeal. The ground reads thus:
“The learned Judge erred in law when he held that the Defendant was entitled to judgment for his counter-claim and dismissed the plaintiff s claim,.
When the case came to this court, the Appellant by a motion dated 6/12/07 filed on 7/12/07 prayed the court for leave to file five additional grounds of appeal numbered 3- 5. The application was granted on 14/4/08 and deemed on that day to be properly filed and served. The grounds of appeal as contained in the application reads:
“(a) The learned trial Judge misdirected himself when he held to wit:
“It is therefore clear that the approval be the Oba with regards to the land in dispute Exhibit 10 preceded that approval in respect of Exhibit “A” and therefore came to a wrong conclusion.
(b) The learned trial judge erred and misdirected himself of facts when he held to wit:
“Therefore the land which the Oba of Benin gave approval on the 14/7/74 in Exhibit “A” and that approved by the Oba on the 20/12/72 in exhibit 10 are one and the same parcel of land” and therefore failed to apply the proper principles with respect to the doctrine of priority under the Bini Customary Law of land acquisition.
The learned trial judge erred and misdirected himself when
(c) evidence of acts of possession and therefore came to a wrong conclusion when he gave judgment to the Defendant counter-claimant.
In this court brief were exchanged and when the appeal came up for hearing on 18/1/11 Mrs. Ekejuba of learned counsel for the Appellant identified his brief dated 21/4/09 filed on 22/4/09 as his argument in favour of the appeal. He adopted same and relied on it, he referred the court to page l 13 lines l-6 of the record and the case of FINNIH V. J. O. IMADE (1992) 7 LRCN p.117 at 130. She urged the court to allow the appeal and set aside the judgment of the lower court.
Mr. Osifo on the other hand identified his brief of argument dated 26/5/08 filed on 27/5/08. He adopted and relied on same as his argument in favour of his argument that the appeal be dismissed.
In his brief the Appellant abandoned the original ground of appeal and he therefore distilled 3 issues for determination of this appeal.
(i) whether in the tight of the Appellant’s pleadings the evidence on the printed records and the submission of counsel to learned trial judge was right in dismissing the Appellant claim when there, it ample evidence establishing the Bini customary Law of Laid acquisition Ground 4
(ii) Whether the learned trial judge was right in dismissing the Appellant’s case when he misdirected himself by having a wrong evidence and therefore came to a wrong conclusion.
(iii) Whether the learned trial Judge was right in dismissing the Appellant’s claim when there was enough evidence of possessory rights exercised by the Appellant over the year.
The Respondent on his owner distilled 4 issues thus:
1. Whether the land being claimed by the plaintiff is the same us the land which the defendant counter-claimant is also claiming (if the answer to the above question is yes then,
2. Who among the parties have proved better title to the land in dispute and
3. Who is in possession of the land in dispute.
4. Whether the Appellant has challenged the finding of fact of the trial court (if the answer to the above is in the negative) then,
Whether the Appeal will not be liable to dismissal.
This appeal will be treated on the issues as formulated by the Appellant.
Issue One whether in the light of the Appellant’s pleadings the evidence on the printed Record and submission of the counsel the learned trial Judge was right in dismissing the Appellant’s claim when there was ample evidence established to Bini Customary Law of Land acquisition. The learned counsel referred to the claim of the Appellant and evidence of his witnesses. He argued that under section 14(1) of the Evidence Act 1990 a custom can be adopted as part of law governing a particular act of circumstance if it can be ascertained judicially. He argued that Exhibit A have passed through the test under the Bini Customary Law.
He referred to the case of J.O.A.O. GABRIEL V. ADAH (1993) 6 NWLR Pt. 552 page 97 and UDI V. IDEMUDIA (1998) 4 NWLR Pt.545 page 231. He argued that the onus in civil case lies on him who asserts.
Refers to BALOGUN V. YUSUF (1999) 8 NWLR Pt. 613, 110. He said the Respondent failed to discharge the onus shifted on him for he failed to call any of the witness that gave him exhibit 10. He therefore urged this court to hold that the Appellant has established his case against the Respondent.
In Reply the Respondent argued that Exhibit A and Exhibit 10 were the originating title documents to a piece of land. He argued that the only authentic manner of identification of land allocated is one physically drawn by a licensed surveyor.
He argued that the evidence as produced by the Appellant and his witnesses are that the land of the Respondent is not the same as that of the Appellant. He described the piece of land as being the same. He argued that the trial court justifiably evaluated the evidence produced by both parties. He relied on OPARAJI v. OGIDEREJI (1999) 70 LRCN p. 1822 at 1849.
He argued that the witnesses of the Appellant admitted the beacon of the disputed land and therefore needs no further proof. He referred to ASAFA FOODS LTD V. ALRAINE NIG. LTD. (2002) 52 NWLR 1 at 13. He also argued that address of counsel can not take the place of evidence. See MUSA V. GUSUA (2004) 8 NWLR P.124 at 128. He therefore urged the court to hold that the land in Exhibit 5 & 6 are the same.
The learned trial Judge did not dispute the Bini Customary Law of Land Acquisition Exhibit A the Oba’s approval and Exhibit 10 Oba’s approval as I have said earlier can not some into existence without the normal procedure therefore the trial Judge was right in his conclusion. Issue one is resolved against the Appellant.
Issue II whether the learned trial Judge was right in dismissing the Appellant’s case when he misdirected himself by using a wrong evidence and therefore came to a wrong decision.
The Appellant in his brief submitted that it is very clear that Exhibit A was the approval given to the Appellant while the Respondent approval is Exhibit 10. Furthermore Exhibits 5 & 6 are litigation survey plan of both the Appellant and Respondent respectively. He argued that under the Bini Customary law the yardstick in determining the identity of the land where there is competing claims in the beacon numbers in the respective approvals.
The use of the litigation survey is a misdirection. He referred to ADAH Supra as to what amount to a misdirection.
The Respondent argued that in his 1st issue this submission which I have earlier considered under this issue I, I am in agreement with the learned counsel to the Respondent that Exhibit 5 and 6 as litigation survey clearly pointed to the fact that Exhibit ‘A’ and 10 Oba’s approval relate to the same land Exhibit 10 would not have come into existence without the procedure enumerated by the Appellant’ s witnesses.
A survey or litigation plan may not in all circumstance be necessary that is where the land in dispute can be ascertained and known to both parties. The parties in this case would not have identified the land in dispute without a survey plan.
See OMIYALE V. MACAULAY 2009 3 NWLR 345 SC. The trial Judge was therefore right when he said I quote –
“I am satisfied and I find that the area verged Red in Exhibit 5 is the same as the area verged Pink in Exhibit 6. In other words the parties are disputing over one and the same parcel of land”.
I have also examined the exhibits and I agree with the trial Judge. Issue 2 is also resolved against the Appellant.
Issue 3 “whether the learned trial Judge was right in dismissing the Appellant’s claim when there was enough evidence of possessory right exercised by the Appellant over the years”.
The Appellant argued that Possession presupposes that the land given to the person in such possession the title to retain it and remain in undisturbed enjoyment of it as against all wrong doers a person who could establish better title.
He referred to S. 148 of the Evidence Act and the cases of OKHUAROBO & ORS V. AIGBE & ORS (2002) 9 NWLR Page 77; AKINSAYAN V. EJERI & 4 ORS (1997) 12 NWLR Pt.531 Page 99. He submitted that the Appellant having established his title by exhibit A his possessory right can not be defeated by that of the Respondent.
The Respondent in his answer as to who is in possession of the land in dispute submitted that the Respondent’s possession emanated in his evidence in chief to wit surveying, plants, boundary pillars, bulldozing paying for crops coupled with the title to land. He urged the court to hold that the Respondent is in possession.
The Appellant had stated the law correctly by citing the case of AJERO & ANTHONY V. UGORGI & 6 ORS (1999) 10 NWLR Pt. 621, 1 and OYEDIRAN & ANOTHER V. OKE & 5 ORS (1997) 11 NWLR Pt. 530 Page 606.
The question is are the authorities cited in his favour. The burden of proof in civil cases generally is on him who asserts or affirms and not on him who denies. However the burden in civil cases is not static. It shifts from side to side depending on the state of evidence led in support of each parties case- Where one party has adduced credible evidence in support of a particular fact the burden then shifts to the adverse party who has the burden to prove that the fact so adduced could not on the preponderance of evidence result in judgment being given in favour of that party.
BUHARI v. OBASANJO (2005) 13 NWLR (Pt 941) l. He who asserts must prove IBRAHIM V. OJOMO (2004) 4 NWLR (PT.862) 89 FMF LTD V. EKPO (2064) 2 NWLR (Pt.856) 100.
It has been established in the locus classicus of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 and a host of other cases that there are five ways of proving title of ownership of land. They are:
(u) by traditional evidence
(b) by production of documents of title and executed duly authenticated
(c) by acts of ownership extending over o sufficient length of time numerous and positive enough as to warrant the inference of true ownership
(d) by acts of having possession and enjoyment
(e) by proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See also SALAMI V. LAWAL (2003) 14 NWLR Pt.1108 546 at 574. In ELIAS V. OMOBORE 1982 All NLR 70 It was held that before a declaration of title to land is granted there must be credible evidence describing and identifying the land with certainty as well as establishing the origin of devolution of the title down to the claimant and where the evidence is unsatisfactory as to the description and identity of the land or as to the origin and devolution of title the claim must fail.
The Appellant in his brief conceded that what determines priority under Bini Customary Law is the of Oba’s Approval.
The learned trial Judge after the evaluation of evidence held at Page 194 of Record that it is clear that the approval by the Oba with regards to the land in dispute Exhibit l0 preceded his approval in Respect of Exhibit A.
Consequently the Plaintiffs claim for title to the land in dispute fails relying on FINNIH V. IMADE 1992 7 LRCN 117 where the Supreme Court held that Under Bini Customary Law, where there is a grant of the same land to two people, the earlier grant is superior to and better than the later one.
It is the general rule that a person where equity is attached to the property first is entitled to priority. See OMIYALE V. MACAULEY supra. The court will not interfere with the evaluation of evidence by the trial court except it is perverse or the trial Judge misdirected himself in law and fact.
As at the time the Appellant was allocated the land in dispute the Oba or Allocation Committee had nothing to allocate on the land in dispute.
In event the appeal lacks merit as all the issue are resolved in favour of Respondent. The judgment of the trial court is affirmed. The appeal is dismissed as lacking in merit.
I order N20,000 costs in favour of the Respondent.
AMIRU SANUSI, J.C.A.: The judgment just rendered by my learned brother Shoremi, JCA was availed to me before now. On perusing same, I find myself at one with his reasoning and conclusion that the appeal is devoid of any merit. I also accordingly dismiss it and endorse the order on cost made in the leading judgment.
CHIOMA EGONDU NWOSU-IHEME (Ph.D) J.C.A.: I have read in draft the lead Judgment of my learned brother SHOREMI JCA and I agree that the appeal is devoid of merit and I have no hesitation in dismissing same.
There is therefore no reason or justification why this court should disturb the findings of the trial court as it is obvious that at the relevant time when the rand was purportedly allocated to the Appellant by the Land Allocation committee or even there was absolutely nothing to allocate, as they could allocated what they do not have.
I also dismiss this appeal, affirm the judgment of the trial court. I award N20,000 costs to the Respondent.
Appearances
Mrs. C. C. Ekejiuba with D. O. Obazee EsqFor Appellant
AND
N. P. Osifo Esq with him P. E. Odono Esq and Miss E. A. B. OsifoFor Respondent
