JOVINCO NIGERIA LIMITED & ANOR v. MR. EMEKA IBEOZIMAKO (2014)

JOVINCO NIGERIA LIMITED & ANOR v. MR. EMEKA IBEOZIMAKO

(2014)LCN/7325(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of June, 2014

CA/K/345/2010

RATIO

EVIDENCE: BURDEN OF PROOF; THE DUTY OF THE PROSECUTION TO DISCHARGE THE BURDEN OF PROOF ON THE STRENGTH OF HIS CASE
This principle that the claimant must succeed on the strength of his case and not on the weakness of the defence’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff by virtue of Section 131 of the Evidence Act. It is therefore settled law that the success of the plaintiffs claim depends on the strength of his evidence placed before the Court and not on the weakness of the case presented by the defence. Bankole vs. Pelu (1991) 8 NWLR (Pt.1211) 528; Melifonwu & ors vs. Egbuyi & ors (1982) 9 SC (reprint) 73, Odunze vs. Nwosu (2007) ALL FWLR (Pt.379) 1295, Kpopek Const. Ltd vs. Ekisola (2010) All FWLR (Pt.519) 1035. However, the plaintiff is entitled to take advantage of the evidence of the defence which supports his case. See Eyo vs. Onuoha (2011) LPELR 1873 (SC). per. AMINA AUDI WAMBAI, J.C.A.

LAND LAW: AN INTER VIVOS GIFT; THE NATURE OF AN INTER VIVOS GIFT

An inter vivos gift is a gift made when the donor is living and provides that the gift takes effect while the donor is living as contrasted with testamentary gift which is to take effect on death of donor (testator). See the Black Law Dictionary 6th edition page 821.
An inter vivos gift by its very nature is made by a living person to another and takes effect immediately it is made and once it is made by the donor the subject of the gift ceases to belong to the donor. It cannot therefore form part of the estate of the donor when the donor dies.
A gift inter vivos was defined by the Supreme Court in Anyagbunam vs. Osaka (2000) 5 NWLR (Pt. 657) 386 as an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver” per Muhammed JSC at pp 23 – 24 paras A – G. See also Osagie vs. Giwa (2009) LPELR 4533 (CA) per Ogunwumiju JCA. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: EVIDENCE OF OWNERSHIP OF LAND; WHETHER THE PROVE OF ACTS OF LONG POSSESSION AND ENJOYMENT OF LAND IS A PRIMA FACIE EVIDENCE OF OWNERSHIP OF THE PARTICULAR PIECE OF LAND AND WHETHER POSSESSION CAN EITHER BE PHYSICAL OR CONSTRUCTIVE

It is trite that the prove of acts of long possession and enjoyment of land is a prima facie evidence of ownership of the particular piece of land. Where as in this case the plaintiff shows that he has been in long possession of the land and has exercised acts of ownership/possession, the presumption that prima facie, he is the owner inures him. Once a party establishes long possession in his favour the onus is on the other who challenges to disprove the claimant and to establish his better title. The law is also settled that possession can either be physical or constructive. A person who rents out his premises to tenant is deemed in the eye of the law to be in possession of that premises. Thus a person can be in possession through a third party such as his servant, agent or tenant. Also possession of a predecessor in title is in law deemed to be continued by his successor. Per Kutigi JSC, as he then was, in Ladipo vs. Ajani (supra). per. AMINA AUDI WAMBAI, J.C.A.

TENANCY LAW: LANDLORD – TENANT RELATIONSHIP; WHETHER THE LANDLORD CANNOT UNILATERALLY ALTER THE TERMS OF THE TENANCY AGREEMENT TO INCREASE THE RENT

The landlord-tenant relationship and issue of rent payable by a tenant to a landlord being one of a contract, the landlord cannot unilaterally alter the terms of the agreement, to increase the rent.
In Cobra Ltd vs. Omole Estate and Investment Ltd (2000) 1 NWLR (Pt. 655) 1, this Court per Galadima JCA (as he then was) following the decision in Udih vs. Izedonmwen (1990) 2 NWLR (Pt. 132) 357 at 366 has held that unless the landlord and the tenant are ad idem a landlord’s unilateral decision to increase the amount of rent payable is ineffective. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CLAIM FOR DECLARATION OF TITLE TO LAND

It is trite that in a claim for a declaration of title to land, as in the instant case, the onus is on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration he seeks. The Plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case even though where the evidence of the Defence favours the said Plaintiff he will not be deprived of such an advantage. See Kodilinye vs. Odu (1935) 2 WACA 336; Obawole vs. Williams (1996) 10 NWLR (Pt.477) 146 at 171, and Oyedeji vs. Akinyele (2001) 29 WRN 69 at 91. per. UWANI MUSA ABBA AJI J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

1. JOVINCO NIGERIA LIMITED
2. MR. J. C. EZEORU Appellant(s)

AND

MR. EMEKA IBEOZIMAKO Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering The Leading Judgment): This appeal is from the decision of Kaduna State High Court in suit No. KDH/KAD/207/2001 delivered on 15th April, 2010 by E. Inuwa J. wherein judgment was entered for the Respondent against the Appellant and which also dismissed the Appellant’s counter-claim.

At the Lower Court, the Respondent as the plaintiff claimed against the Appellants (as defendants) as follows:

“26. WHEREOF the plaintiff claim against the defendants jointly and severally, as follows;

1. The Honourable Courts’ declaration that the premises W2 Ahmadu Bello Way, Kaduna is the property of the plaintiff having inherited same from the late father Ibeozimako, according to the Igbo native law custom.
2. An order ejecting the defendants from the premises W2 Ahmadu Bello Way Kaduna and handing over to the plaintiff a vacant possession of the stores/shops occupied by the defendants in the main premises.
3. A perpetual injunction restraining the defendants by themselves, their servant, agents privies and or any one claiming through them from howsoever trespassing into the said W2 Ahmadu Bello Way, Kaduna or in any way disturbing the plaintiff from having and enjoying quite possession of the aid land.
4. Payment of arrears of rent/mense profits for the period of 1994-2003 and thereafter at the rate of Four Hundred Thousand Naira per annum until vacant possession of all the shops/stores and office occupied by the Defendants at the mid W2 Ahmadu Bello Way, Kaduna are handed over to the plaintiff.
5. General damages against the Defendants jointly and severally for the sum of One Million Naira.”

The Appellants, as defendants, also counter-claimed against the Respondents, thus:-

“1. The sum of N25,160:00k being the rents paid by the defendants.
2. Refund of N100,000:00k for the revalidation of the certificate of occupancy.
3. Refund of N50,000.00k paid to Basil Nwogu & Co. on behalf of the plaintiff to Nweke as refund of money spent in the shops by the said Nweke.
6. That the defendants are not tenants.
7. In the alternative, the sum of N4.19 Million being the evaluation report of the cost of construction made by the defendants.
8. The sum of N550,000:00k being the cost of defendants prosecuting this case.”

The facts giving rise to this appeal are that: one Chief Michael Okechukwu lbeozimako, now deceased, who was the father of the Respondent was the owner of the land in dispute known as W2 Ahmadu Bello Way Kaduna which he bought from one Ajulu in the year 1952. The W2 Ahmadu Bello Way Kaduna is a commercial premises. One Unachukwu was the care-taker of the property until he died and Vincent I. Okezue (PW1) became the care-taker. The 1st and 2nd Appellants were two of the four tenants who occupy shops in W2 Ahmadu Bello Way, Kaduna and were paying rent first to Chief M. O. Ibeozimako before his death and after his death to the Respondent through the care-taker. Before Chief M.O. Ibeozimako died, he gave the land to the Respondent his first son, who upon his father’s demise inherited the land and thereafter became the landlord of the premises. The Appellants were paying their rent in respect of the shops occupied by them until 1994 when they stopped payment and 2nd Appellant who is the Managing Director of the 1st Appellant started claiming that the place belongs to him.

Meanwhile in 1996, the 2nd Appellant who presented to the Respondent and the care-taker (PW1) that the Respondents father who had applied to Kaduna North Local Government for a new Certificate of Occupancy in place of the missing one, was asked to pay the sum of N100,000 for the new certificate of occupancy (C of O). The Respondent sent all the required documents in respect of the house to Elder Vincent I. Okezue (PW1) who was to go together to the lands office with the 2nd Appellant but could not make it as he had to travel. He gave all the documents to the 2nd Appellant and the sum of N50,000 Second Appellant was to add another N50,000 which would be defrayed from his rent. However, instead of applying for the Certificate of Occupancy in the Respondent’s name, the 2nd Appellant, in connivance with staff of the Lands & Survey of the Local Government, secured the Certificate of Occupancy in his own name.

The matter was eventually reported to the police who recovered the certificate of occupancy and other documents from the 2nd Appellant.

Four witnesses testified for the Respondent including the Respondent. Several documents were tendered to support the landlord-tenant relationship between Respondent and Appellant.

The Appellants have refused to pay any rent since 1994 but contend that the land belongs to them as the Respondents father never acquired title to the property to devolve anything to the Respondent. That the land given to the Respondents father had expired and the whole of the area had been acquired by Kaduna State Government when Katsina Road round about was constructed. That the land officer told him that certificate of occupancy of Ibeozimako had been revoked and compensated and that he 2nd Appellant was advised to pay for the certificate of occupancy. That the tenancy relationship and the rent paid to the Respondents were all based on a mistake of fact and upon realization of that mistake, they stopped paying rent to the Respondent. Appellants called 3 witnesses including the 2nd Appellant and also tendered some exhibits.

2nd Appellant contended that he built 2 shops at the cost of N4.1 Million and wanted to be compensated. At the conclusion of trial, the learned trial Judge in his considered judgment found for the Respondent dismissed the Appellants counter-claim and entered judgment for the Respondent as follows:

“1. It is hereby declared that the premises known as W2 Ahmadu Bello Way, Kaduna is the property of the plaintiff Mr. Emeka Ibeozimako having inherited same from his late father.
2. That the defendants are to be ejected forthwith from the said premises W2 Ahmadu Bello Way, Kaduna and that vacant possession of the shops/stores occupied by the defendants shall be handed over to the plaintiff.
3. That the defendants shall pay arrears of rent/mense profit for the period of 1994 – 2003 and thereafter at the rate of Four Hundred Thousand Naira per annum until vacant possession of the premises is handed over to the plaintiff.
4. That the defendants are perpetually restrained either by themselves, their servants, agents, privies and or any one claiming through from trespassing or in any way disturbing the plaintiff from having and enjoying quiet possession of the aid property at W2 Ahmadu Bello Way, Kaduna.
The sum of One Hundred Thousand Naira (N100,000:00k) general damages is awarded against the defendants jointly and severally.”

The Appellants being dissatisfied with the judgment filed a notice of appeal dated 16/4/10 on 17/4/10 on two grounds.

The Appellant through his counsel Morris Odeh Esq., sought and was granted leave of Court on 17/6/13 to amend the Notice of Appeal. The amended notice of appeal dated 29/1/2013 but deemed filed on 17/6/03 as duly filed, contains 4 grounds.

In compliance with the Rules of this Court both counsel filed their briefs of argument. The Appellant’s brief of argument dated 18th June, 2013 as well as the Appellants reply brief dated 25th November, 2013 and filed on 26th November, 2013 were settled by Morris Odeh Esq.

The Respondent’s brief of argument dated and filed on 8th July, 2013 was settled by Basil C. Nwogu Esq.

In his brief of argument, the learned Appellant’s counsel raised 3 issues for determination. These issues are:-

“1. Whether the Respondent has proved by evidence at the trial that W2 Ahmadu Bello Way, Kaduna was inherited by him to warrant the finding of the Lower Court in his favour?
2. Whether an order of non suit is not the most appropriate order to be made in the circumstance of lack of relevant evidence at the trial to sustain plaintiff’s claim for title.
3. Whether there is any evidence on record to warrant the holding by the Lower Court that “the defendants shall pay arrears of rent/mense profit for the period of 1991 – 2003 and thereafter at the rate of N400,000.00 (Four Hundred Thousand Naira) per annum until vacate possession of the premises is handed over to the plaintiff?”

In response, the learned counsel for the Respondent in his brief of argument raised a Notice of Preliminary objection challenging the competence of grounds 1, 2 and 4 of the Appellants amended grounds of appeal.

In the event that the Preliminary Objection fails, counsel distilled two issues for determination.
These two issues are:

“i. Issue one: whether by the pleadings and oral evidence of the parties, the plaintiff/Respondent produced sufficient/better and superior evidence at the trial Court than the Appellant, to entitle him to the judgment delivered by the High Court that the Respondent has proved a better title to the disputed W2 A/Bello Way, Kaduna than the Appellants?
ii. Whether there is any evidence on record to warrant the holding by the trial Court that “the defendants shall pay arrears of rent/mense profit for the period of 1994 – 2003 and thereafter at the rate of N400,000.00 (Four Hundred thousand Naira) per annum until vacant possession of the premises is handed over to the plaintiff?”

At the hearing of the appeal, learned Respondent’s counsel applied to withdraw his argument on the preliminary objection contained at pages 6 – 7 of his brief of argument having not filed a notice to that effect. The said argument on the preliminary objection is hereby discountenanced.

I am of the view that the following issues will adequately determine the appeal.

“(1) Whether by the available evidence before the trial Court, the Respondent proved his entitlement to W2 Ahmadu Bello Way, Kaduna to warrant the judgment of the Court.
(2) Whether there is any evidence on record to support the holding by the learned trial Judge that:
“the defendants shall pay arrears of rent/mense profit for the period of 1994 – 2003 and thereafter at the rate of N400,000.00 per annum until vacant possession of the premises is handed over to the plaintiff ”
(Appellant’s issue No.3 and Respondent’s issue No.2)

ISSUE NO.1
Whether by the available evidence before the trial Court, the Respondent proved his entitlement to the disputed land, W2 Ahmadu Bello Way Kaduna to warrant the judgment of the Court.

The learned counsel for the Appellant in arguing his issues Nos 1 and 2 encapsulated in this issue under consideration, submitted that the finding by the Lower Court that the Respondent proved he inherited the property in question was not based on evidence as the Respondent did not adduce evidence to show the distribution of the estate of the deceased, or produce any letter of administration of the estate of his late father or even produced any deed of gift. We were urged to interfere with the said finding. He referred to Joel Anode vs. Samuel Mmeka (2009) All FWLR (Pt 468) 279, 291 paras C – D.

Counsel contended further that though the Respondent tendered a host of exhibits they are not relevant to the proof of his title to the land in dispute and argued that the proper order the Lower Court ought to have made in the circumstance, was for an order non-suiting the Respondent. Counsel relied on Lateef Tiaminu vs. Lasisi Emiola Olaogun (2009) All FWLR (Pt 451) 960, 980 B – E, and at 982, E – F and Samuel Anode vs. Mmeka (supra) 7 at 292 C – D.

In response, the learned Respondent’s counsel canvassed that the Respondent pleaded and adduced evidence of being the son of the late Chief M. O. Ibeozimako who made a gift of the disputed land, W2 Ahmadu Bello Way Kaduna inter vivos to him (Respondent) before his death. PW3 confirmed the gift from the Respondent’s father whose evidence was not challenged.

That the Appellants who had recognized and acknowledged the Respondents ownership of W2 Ahmadu Bello Way Kaduna and the Landlord-Tenant relationship between Respondent and himself through several documents as exhibits 1, 2, 12, 13A, 13B, 14, 15, 17, 18A, 18B, 21 and 22 is estopped from now denying the title of the Respondent. He relied on Joe Iga vs. Ezeigel Amakari (1976) 11 SC 1, 12 – 13 & Section 170 Evidence Act. That Appellant cannot approbate and reprobate.

It was contended that the Appellants pleadings in paragraph 2 of their final amended statement of defence that the relationship between the Respondent and himself of landlord and tenant was based upon the mistaken belief that the Respondent’s father title to the land no longer existed as the lease of the land to Respondent’s father had expired and also that the place was acquired by the Kaduna State Government when Katsina Road round-about was constructed and late Ibeozimako was paid compensation.

However, both DW3 the land officer from the Local Government and exhibit 35 completely destroyed the Appellants claim in that exhibit 35 shows that W2 Ahmadu Bello Way Kaduna was not one of the plots acquired by Government neither was same revoked. Further that the evidence of DW3 that by 1996 W2 Ahmadu Bello Way Kaduna had become an urban Area outside the jurisdiction of Kaduna North Local Government thus the Local Government had no jurisdiction to issue any certificate of occupancy in respect of any such land.

He submitted that DW3 also testified that the application for the Certificate of Occupancy was made in 1996 but the Certificate of Occupancy was dated 1982, which counsel contends is ridiculous and weakens the Appellants case.

Respondent’s counsel further submitted that the Respondent relied on long possession and acts of renting the premises to the Appellants and other tenants since 1952 until the death of the Respondent’s father and also by the Respondent, who were collecting rent from the Appellants and other tenants, 1st through the late caretaker and later through PW1, the present care-taker. Reliance was placed on the case of Nwabuoku vs. Onwordi (2000) 5 SCNJ 359, 368 lines 27 to 1 – 7 at p. 369. He contends that possession by a tenant, is possession of the landlord and possession of predecessor in title is deemed to be continued by his successor. Ladipo vs. Ajani 8 NWLR (Pt 517) 305 at 367 B – C (incomplete citation) was relied upon.

It is the final contention of the Respondents counsel that Respondent proved his case on balance of probabilities by abundance of evidence thereby dislodging the Appellant’s contention that the trial Judge ought to have non-suited the Respondent’s case.

The Appellant’s counsel in his reply on point of law maintain that the Respondent did not prove his title over W2 Ahmadu Bello Way Kaduna and how same devolved on him alone as his late father, was also survived by two other sons and the Respondent’s mother, the Respondent’s father having died intestate. Counsel submitted further that the oral evidence of PW3 on the transfer of the property to the Respondent by his late father inter vivos, is doubtful as same is not corroborated.

Learned counsel argued that possession by the Respondent’s late father cannot be presumed to be continued by the Respondent just as the Respondent who failed to prove his title cannot rely on the weakness of the defence.

The real question is whether the Respondent adduced sufficient evidence that established not only the title of his late father, but also that the title was devolved or transferred unto him.
The Respondent as the plaintiff had the duty to prove by credible and cogent evidence the title claimed. This he must do by the strength of his case and not on the weaknesses of the Defendant’s/Appellants’ case.
This principle that the claimant must succeed on the strength of his case and not on the weakness of the defence’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff by virtue of Section 131 of the Evidence Act. It is therefore settled law that the success of the plaintiffs claim depends on the strength of his evidence placed before the Court and not on the weakness of the case presented by the defence. Bankole vs. Pelu (1991) 8 NWLR (Pt.1211) 528; Melifonwu & ors vs. Egbuyi & ors (1982) 9 SC (reprint) 73, Odunze vs. Nwosu (2007) ALL FWLR (Pt.379) 1295, Kpopek Const. Ltd vs. Ekisola (2010) All FWLR (Pt.519) 1035.
However, the plaintiff is entitled to take advantage of the evidence of the defence which supports his case. See Eyo vs. Onuoha (2011) LPELR 1873 (SC).

A party claiming title can rely on any one or more of the 5 ways of proving title. Idudun vs. Okumagba (1976) 9 & 10 SC 246.

In the instant case, the Respondent pleaded that his late father Chief M. O. Ibeozimako bought the land in dispute from one Ajulu in 1952 which transaction was reduced into writing and that his late father rented out shops to tenants since 1983 of W2 Ahmadu Bello Way, Kaduna. Respondent also pleaded that his father made a gift of the disputed land, W2 Ahmadu Bello Way Kaduna to him, the Respondent being the first son of the late Chief M. O. Ibeozimako. The inter vivos gift was also reduced to writing.

In support of these pleadings, evidence was adduced by PW1, PW3 and Respondent himself (PW4) that the land in dispute was purchased by the late M.O. Ibeozimako in 1952. That the Appellants have since 1984 been two out of the tenants of the late Ibeozimako at W2 Ahmadu Bello Way, Kaduna. It was indeed PW1 who took the 2nd defendant in his car to the late Ibeozimako in Anambra State to introduce him (2nd Appellant) as a person who wanted to rent the then vacant shop at W2 Ahmadu Bello way. The rent was paid to the late Ibeozimako in 1984.

Although, the attempt made to tender in evidence the sale agreement between the late Ibeozimako and Ajulu failed because the document was not registered as required by the Kaduna state Land Registration Law, there is abundant evidence that the Appellants recognized and acknowledged both the late Ibeozimako and Respondent as the landlords and the relationship between them was that of landlord and tenant.

Although the original certificate of occupancy was said to be missing, the Respondents father swore to an affidavit at the Kaduna State High court stating that W2 Ahmadu Bello way was his property. The sworn affidavit was admitted as exhibit 19. Respondent was not taken up on exhibit 19 in cross examination. Though an affidavit, the Court was also entitled to rely on it.

The letter late M. O. Ibeozimako wrote to the administrator, Kaduna Local Government on 31/10/85 applying for a new Certificate of Occupancy in respect of W2 Ahmadu Bello Way, is exhibit 20. It was admitted without objection by the Appellants’ counsel.

The Respondent tendered several other exhibits to show the landlord-tenant relationship between himself and the Appellants. Exhibits 1, 2, 12, 13A, 13B, 14, 15, 17, 18A & B, are some of the exhibits tendered before the Court. In exhibit 1 which 2nd defendant wrote to the Respondent as his landlord, the 2nd Appellant complained of the leaking roof and requested that it be repaired.
In exhibit 2, 2nd Appellant wrote to his church complaining that PW1 was inciting the Respondent to eject him (2nd Appellant) as a tenant.
In exhibit 12, the 2nd Appellant wrote as a tenant to the Respondent informing the Respondent that some people were building on the land. In exhibits 13A & 13B, the 2nd Appellant signed the settled accounts between himself as a tenant and the Respondent as a landlord. Exhibit 15 is a letter written by the Appellants to the Respondent complaining of the poor condition of the stores occupied by the Appellants stating that same needed be repaired by the Respondent.
In exhibits 18A & 18B, the Appellants wrote to the Respondent applying for more stores at W2 Ahmadu Bello Way, Kaduna.

Further to these exhibits, the evidence of PW1 that he was the one who took the 2nd Respondent in his car from Kaduna to Anambra state and introduced the 2nd Appellant to the late Ibeozimako as a person who wanted to rent the then vacant shop at the premises was not denied or challenged. The evidence of PW1 that he has been the care-taker of the premises after the death of the 1st care-taker with whom the 2nd Appellant had been dealing as a tenant is also not denied.

By these oral and documentary evidence laid before the Lower Court, I hold that the Lower Court was on sound footing to have held that the plaintiff, now Respondent, had proved that the defendants, (now Appellant) were tenants to the Respondent.

On the contention that the Respondent did not prove the devolution or transfer of the land from his late father to himself because Respondent failed to produce letters of administration or deed of the gift, apart from some of the exhibits already referred to in which the 2nd Appellant acknowledged and treated the Respondent as his new landlord, the evidence of pW3 was unassailable.

PW3 testified inter alia:-
“…During the construction, Emeka (Respondent) came and told me that particular plot of land had been given to him by his father Chief Ibeozimako…..The care-taker then and I went to confirm this from plaintiff’s father, he said yes and that his son will continue with the agreement with me, his was in early 1991.”

This evidence was not challenged in cross-examination.
It is significant to note that the gift was made inter vivos, when the Respondent’s father was still alive and was confirmed to be so from the late Ibeozimako, by PW3 who was also a tenant.

The Respondent was therefore not required to have tendered any letters of administration of the estate of his deceased father, the gift inter vivos having been made to him while his father was still alive, the same would not have been part of the estate of the deceased to be distributed because it no longer belonged to the deceased.

It is noted that neither the Respondent’s mum nor any of the siblings have lodged any complaint that Respondent is not the owner of the land in dispute.
It is also contended for the Respondent that the Appellants having by the stated evidence admitted title of Respondent, they are estopped from now denying same, placing reliance on Section 170 of the Evidence Act and the cases of Udevs, Nwara (1993) 47 at 67 lines 7 – 33 and Joe Iga & Ors vs. Ezekiel Amekeri & ors (1976) 11 SC 1 at 64.
Section 170 of the Evidence Act provides:
“No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenant, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession of it shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”
Obviously, the Appellants having acknowledged the right of the Respondent’s father and later that of the Respondent to the land in dispute by which right the Appellants became the tenants of the Respondents thereby creating a landlord-tenant relationship, the Appellants cannot be permitted to deny the title of the Respondent or that the Respondent did not possess the title or right in the property.
By operation of Section 170 Evidence Act, the Appellants who have been tenants to Respondent, are estopped from denying the title or interest of the Respondent in the disputed land. To allow the Appellants to deny the title of the Respondent, would amount to what the Supreme Court said while explaining the rule of estoppel in the case of Ude vs. Nwara (supra) as “blowing hot and cold, to affirm at one time and deny at the other; or as it is said to approbate and reprobate….”

The learned trial Judge duly evaluated and considered all these evidence and arrived at the conclusion that the Respondent had proved by credible evidence the root of his title to the property in issue. (Page 300 of the record of proceedings).

I cannot find any fault with that conclusion. I entirely agree with the learned trial Judge that by the abundant evidence available before the Lower Court, the Respondent proved the root of title and that same was transferred to him by his father before his death. Not only that, the Appellant gave recognition to that fact and dealt with the Respondent as their landlord.

It is also contended that the Respondent relied on long possession of the disputed land W2 Ahmadu Bello Way Kaduna from 1952 to date as the other tenants have remained loyal and are still paying rent to the Respondent. That except for the Appellants who are now challenging the title of the Respondents no other person has challenged the Respondent’s title. Relying on Ladipo vs. Ajani (1997) 1 NWLR (Pt.517) 305. Counsel submitted that the possession of the tenant is the possession of the landlord and possession of a predecessor in title is deemed to be continued.

The law is also settled that possession can either be physical or constructive. A person who rents out his premises to tenant is deemed in the eye of the law to be in possession of that premises.
Thus a person can be in possession through a third party such as his servant, agent or tenant. Also possession of a predecessor in title is in law deemed to be continued by his successor. Per Kutigi JSC, as he then was, in Ladipo vs. Ajani (supra).

The evidence adduced by the Respondent that the Appellants were his tenants, I hold, supports the Respondent’s long possession of the land through his tenants including the Appellants and except the Appellants proved a better title which I shall consider anon, the presumption inured in favour of the Respondent which the Respondent could properly rely upon to establish title to the disputed land.

Now, the Appellants at paragraphs 2(a), 4(a), (b) (c) of their last amended statement of defence pleaded that there was no tenancy relationship between the Respondent and them (Appellants) as the Respondent’s lease on the land had expired and the Kaduna State Government had, acquired the place when Katsina Road Round about was constructed and the Respondent’s father paid compensation. Appellants also pleaded that the Respondent’s title had thereby been extinguished and that they (Appellants) are staying on the unacquired portion which became bona vocantia. This position of the Appellants is not only contradictory but has clearly, decisively and unequivocally been belied by the evidence of DW3 and exhibit 35. DW3 the land officer testified that W2 Ahmadu Bello Way, Kaduna was not one of the plots that was acquired. That compensation was not paid to the Respondent’s father nor was the late Ibeozimako’s allocation revoked.

When cross-examined on the purported certificate of occupancy which the Appellant said was issued to him in his name in respect of the disputed land (exhibit 3 & 30), DW3 said that it was strange that the certificate of occupancy was issued on 12/03/1982 while the 2nd Appellant’s application for same was dated 05/06/1996. DW3, said he could not explain it as he was not the person in the office at that time. He also said that by 1996, the Kaduna North Local Government could not have issued the certificate of occupancy because the area had then fallen within Kaduna Urban Area which only the State Government had jurisdiction over.
DW3 also testified that the purported occupancy No. 27679, (exhibit 3 & 30) was off their records.

This evidence of DW3 & exhibit 35 no doubt, knocks the bottom out of the Appellants claim that the Respondent’s land had been revoked, that the Respondent’s father was paid compensation, that the 2nd Appellant was issued a valid certificate of occupancy in respect of the disputed land. This evidence of DW3 and Exhibit 35 also belies the Appellants claim that the Respondent’s lease to the land had expired. Furthermore, exhibits 26 & 26A which are the purported letters written by the Kaduna North Local Government to the 2nd Appellant in respect of the land, curiously, though written to the 2nd Appellant were also copied to him. Why should documents written to a person be copied to him? The learned trial Judge before whom the documents were tendered, at page 299 of the record found that the 2nd Appellants
names were super imposed on another name. That finding by the learned trial Judge cannot be faulted in view of the evidence before the Court. It is also significant to note that the Respondent submitted all the original copies of the documents in respect of the house to PW1 who handed them over to the 2nd Appellant for the purpose of securing a new certificate of occupancy in the name of the Respondent. But, alas, that was not to be, for the 2nd Appellant had his selfish motive of converting the documents to his name and securing the title document in his name.

Indeed the evidence of DW3 and exhibit 35 do not only destroy the Appellants case but also supports the Respondents case and is one such situation recognized in law, when the Respondent can make use of or take advantage of the defence’s case. On the basis of all that has been stated so far, I hold that the trial Judge was right when he held that “the plaintiff has by credible evidence proved the root to the property in issue and that by it has also established conclusively that he has a better title to the said W2 Ahmadu Bello Way, Kaduna.

It is in the light of these and the copious evidence before the Lower Court that I find the submission by the Appellants’ counsel that the trial Court ought to have non-suited the Appellant not only preposterous but also are the grant of which would be flying in the teeth of the evidence.

I therefore resolve this issue in favour of the Respondent. This leads to the 2nd issue.

ISSUE NO. 2
Whether there is any evidence on record to support the holding by the learned trial Judge that:

“The defendants shall pay arrears of rent/mense profit for the period of 1994 – 2003 and thereafter at the rate of N400,000.00 per annum until vacant possession of the premises is handed over to the plaintiff.”
(Appellant’s issue No.3 and Respondent’s issue No.2)

It is submitted for the Appellants that the learned trial Judge ought to have restrained himself to the initial existing amount paid as rent per annum as there was no evidence that the Appellants and the Respondent agreed on the Respondent’s proposal of N400,000 per annum, the value of the property itself being far below the estimation of the trial Judge. In the absence of such an agreement, it was contended that the findings of the Lower Court have been manifestibly established to be unreasonable, incredible and unsupported by evidence. Counsel cited in support Tsokwa Motors Nig Ltd vs. Awoniyi (1999) 1 NWLR (Pt 586) 199, Umar vs. Bayero University Kano (1988) 4 NWLR (Pt.86) 85.

In response, it was canvassed for the Respondent that the Appellants having been proved to be tenants of the Respondent and that they did not pay rent from 1994 to 2003, the Respondents are entitled to the rent/mense profit. Equally too, it was submitted, that the Respondents having pleaded in paragraph 28(a) to (e) the increase in the rent and how the amount was arrived at, which pleadings the Appellants did not deny, the Appellants are deemed to have admitted the fact of the increment which the Respondent was no longer required to prove. Reliance was placed on Chief Mrs. Akintola & 1 Ors Vs. Mrs C.F.A.D Solano (1986) 2 NWLR (Pt.598) 620 paras E – F.

The Appellant’s counsel on points of law, submitted that the Respondent having admitted that there was no agreement between him and the Appellants, the notice of increment cannot stand and that there was no evidence supporting the finding by the trial Court holding that the Respondent was entitled to N400,000 per annum.

Flowing from the resolution of issue No.1 in favour of the Respondent to the effect that the Appellants were and remained tenants to the Respondent and the admission by the Appellants that they stopped paying rent to the Respondent since 1993, is a matter of law that the Appellants are obligated to pay and the Respondent entitled to receive the rent from the Appellants for the period during which may ceased to pay the rent while remaining in the premises of the landlord, the Respondent.

The trial Judge was therefore right to have ordered the Appellants (as defendants) to pay the arrears of rent/mense profit for the period of 1994 – 2003. That conclusion arrived at and the said order made cannot be faulted.

The other aspect of the Appellants contention is the justification for the award of N400,000 rent per annum after 2003 until vacant possession of the premises, was handed over.

This is where I think, the learned trial Judge parted ways with the law. Admittedly, as reasoned by the learned Respondent’s counsel the Appellants did not controvert or challenge the Respondent’s pleadings in paragraph 28 regarding the rent increase. However, I am of the humble view that the matter of rent increment must be supported by an agreement to that effect. The landlord-tenant relationship and issue of rent payable by a tenant to a landlord being one of a contract, the landlord cannot unilaterally alter the terms of the agreement, to increase the rent.
In Cobra Ltd vs. Omole Estate and Investment Ltd (2000) 1 NWLR (Pt. 655) 1, this Court per Galadima JCA (as he then was) following the decision in Udih vs. Izedonmwen (1990) 2 NWLR (Pt. 132) 357 at 366 has held that unless the landlord and the tenant are ad idem a landlord’s unilateral decision to increase the amount of rent payable is ineffective. I abide by that decision. I therefore hold that there was no evidence to support the finding by the learned trial Judge and the order made that the Appellants pay the rent of N400,000 per annum until vacant possession be handed over to the Appellant.

The agreed rent as per exhibit 22 is what the Respondent is entitled to as rent from the Appellants until vacant possession is handed over to the Respondent.
I therefore hold that the trial Judge was in error to have ordered the Appellants to pay N400,000 per annum after 2003. This 2nd aspect of this issue therefore is resolved in favour of the Appellants.

Thus, while the appeal substantially fails and is entitled to be dismissed, it succeeds in part to the extent that the order made by the trial Judge for the Appellants to pay N400,000 per annum after 2003 until possession is delivered, is hereby set aside. I hereby order that the Appellants pay to the Respondent the arrears of rent/mense profit on the original amount of rent from 1994 until they deliver vacant possession to the Respondent.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Amina A. Wambai, JCA, just delivered.

My Lord exhaustively discussed and considered the issues presented to us for determination in this appeal and I am in complete agreement with my lord’s reasoning and conclusion therein arrived at that the appeal fails despite the resolution of issue 2 in favour of the Appellant.

In the instant case, the Respondent has proved his case by both oral and documentary evidence that premises W2 Ahmadu Bello Way, Kaduna devolved to him through gift intervivos from his father and thus inherited same after the death of his father.

There is abundant evidence on record that the Appellants were tenants of the Respondent’s father on the premises W2 Ahmadu Bello Way, since 1984. The Appellants continue to pay rent to the Respondent in recognition of his actual title to the property indispute.

The claim by the Appellants that the property in dispute was revoked by the Kaduna North Local Government and reallocated to him was completely debunked by the Appellants’ own witness, DW3, the Land officer, and Exhibit 35. DW3 testified that W2 Ahmadu Bello Way, Kaduna was neither acquired nor compensation paid to the Respondent’s father. This evidence supplied by the Appellant clearly knocks the bottom off of the Appellants’ case.

It is for this and the fuller and detailed reasons in the lead judgment of my learned brother that I also dismissed this appeal and endorse the consequential orders made including that as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has considered and resolved the issues in contention in this appeal I agree with the reasoning and abide the conclusions. I have nothing more to add.

Appearances

R. T. AdekoyaFor Appellant

AND

Basil C. Nwogu with C. J. NwoguFor Respondent