MADAM MAGGIE WARIGBELEGHA v. SILAS OWERRE
(2011)LCN/4227(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of January, 2011
CA/PH/220/2004
RATIO
DECLARATION OF TITLE TO LAND: WHETHER THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE IS ON THE PLAINTIFF TO PROVE THAT THE DEFENDANT IS NOT THE OWNER OF THE LAND IN DISPUTE
The law is that a party who desires to dislodge another who is in possession has to prove a better title. Thus where the Defendant in an action for declaration of title is in possession even though adverse, the burden is cast on the plaintiff to prove that the Defendant is not the owner of the land in dispute. If the title of the plaintiff out of possession is established, the defendant in possession successfully resists the claim if he shows a better title or better right to possession. In Amakor v. Obiefuna (1974) 3 SC 67 the Supreme Court relied on its earlier unreported decision, Godwin Egwuh v. Duro Ogunkehin, case No.529/66 decided on 28th Feburary 1969, and re-enunciated the principle. The principle has remained what these earlier cases say it is ever since. It is that where it is alleged that someone in possession of land is a trespasser, the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party. See also Adeniran v. Alao (1992) 2 NWLR (Pt.223) 350 and Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 701. PER M. DATTIJO MUHAMMAD J.C.A.
BURDEN OF PROOF/STANDARD OF PROOF: POSITION OF THE LAW ON THE BURDEN OF PROOF AND STANDARD OF PROOF IN CIVIL CASES; CIRCUMSTANCE WHERE THE BURDEN OF PROOF IN A CIVIL CASE WILL SHIFT; EFFECT OF THE FAILURE OF THE PLAINTIFF TO DISCHARGE THE BURDEN OF PROOF
Learned Appellant counsel must further be reminded that though by virtue of S.137 of the Evidence Act, the burden of proof in civil cases is on the party who asserts a fact to prove same, the standard of proof required is on a preponderance of evidence and balance of probabilities. Thus in such case parties must prove their case on preponderance of evidence and on balance of probabilities. It is after the initial burden of proving the case has been discharged in accordance with this principle of law that the burden shift and continues to shift. Where the plaintiff fails to discharge this initial burden the defendant would not be required to prove any fact and the plaintiff would not be allowed to rely on the defendant in order to succeed. See Longe v. FBN Plc. (2006) 3 NWLR (pt.967) 228; Audu v. Guta (2004) 4 NWLR (Pt.864) 463, Mani v. Shanono (2006) 4 NWLR (Pt.969) 132 and Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) 65. PER M. DATTIJO MUHAMMAD J.C.A.
PURCHASE RECEIPTS: WHETHER PURCHASE RECEIPTS CAN BE ADMISSIBLE AS ACKNOWLEDGEMENT OF THE PAYMENT OF THE MONEY IN RESPECT OF THE PROPERTY IN DISPUTE; ESSENCE OF PURCHASE RECEIPTS IN LANDED MATTERS
Exhibits A and B are pleaded and relied upon by the Respondent as purchase receipts. They are pleaded and exhibited as acknowledgement of the payment of money in respect of the land and building in dispute. It has been held in a seemingly endless number of cases that they are admissible as acknowledgement of the payment of the money in respect of the property in dispute. The Respondent in the instant case who relies on these unregistered documents is deemed to be in possession following his purchase of the properly in dispute and arising from that possession a presumption is created of an equitable interest capable of being converted into a legal estate. See Ogunbanbi v. Abowab (1951) 13 WACA 222, Fakooya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74 and Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370 at 384. PER M. DATTIJO MUHAMMAD J.C.A.
JUSTICES
M. DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MADAM MAGGIE WARIGBELEGHA – Appellant(s)
AND
SILAS OWERRE – Respondent(s)
M. DATTIJO MUHAMMAD J.C.A. (Delivering the Leading Judgment): Some twenty five years ago, the Respondent in this appeal, as Plaintiff, took out a writ against the Appellant and her husband as defendants claiming jointly and severally as follows:-
(i) A declaration that the plaintiff is entitled to statutory right of occupancy over all that piece or parcel of land with the building thereon known as, called and situate at No. 4 Christ Apostolic street Mile 3, Diobu, Port Harcourt.
(ii) Perpetual injunction restraining the Defendants, their agents and servants from further acts of occupation of the said property in dispute as owners.
(iii) N21,250 general and special damages as follows:-
(a) N10,000 general damages.
(b) N11,250.00 special damages being arrears of rent for 15 rooms from June 1979 to September 1985, that is, 75 months at the rent of N10 per room – per month = 75x 15×10.
With the death of the 2nd Defendant, his name was subsequently struck out.
Pleadings were ordered, filed and exchanged. The facts of the case from which the appeal emanated are recounted below. By his pleadings and the evidence, the plaintiff/Respondents case is that he bought the land and property in dispute from PW4 for Six Thousand Naira as evidenced by Exhibit A. PW4 had earlier bought the very property from one M. D. Okechukwu an indigene of Anambra State. The purchase price as evidenced by Exhibit B is one hundred and ninety pounds. PW4 was in possession of the land before the civil war. At the end of the war, PW4’s possession was restored to him by the abandoned Property Authority. Exhibit C is the instrument of transfer and restoration of PW4’s possession. Exhibit D is the Rivers State Government Gazette, a publication of the release to PW4 of the property in dispute at the end of the war. DW4’s name was however misspelt in Exhibit D. The Ministry of Lands and Survey Rivers State conveyed in Exhibit E the correction as to the spelling of PW4’s name. Exhibit F is the Ministry of Land’s letter to the Appellant notifying her of the correction effected on PW4’s wrongly spelt name in Exhibit D and D1.
It is Plaintiff/Respondent’s further case that his application for change of ownership over the land in dispute to the Port Harcourt City Council was effected in the presence of PW4 per Exhibit G. The Plaintiff/Respondent and Pw4 before him paid property rates in respect of the property. Exhibits J and K are receipts in that regard. Exhibit H is the valuation PW4 had prepared in respect of the property. The receipt in respect of the application for certificate of occupancy made by the plaintiff/Respondent to the Rivers State Ministry of land is Exhibit L. The house was in serious disrepair when the Respondent bought it. Exhibit M is the report of the Port Harcourt city council Health Department on the building’s state of disrepair Exhibit N is the permission granted to the Respondent to repair the building. The Defendant/Appellant, the Plaintiff further averred drove him away ensuring that he neither entered the premises nor carried out the repairs. He asked the lower court to declare him entitled to the land and building known as No 4 Christ Apostolic Street, Mile 3 Diobu, Port Harcourt.
Defendant/Appellant’s case, on the other hand, is that she bought the land and building in dispute, No 4 Christ Apostolic Street from one Chief Jumbo Ovunwo an Ikwerre man with whom they made an agreement. The Deed of conveyance dated 3rd March 1975 is marked Exhibit R. She and her late husband stayed in the house for more than twenty years. It is Defendants/Appellants further case that they repaired the house which was in acute state of disrepair per the estimates prepared by a contractor in August 1979 Exhibit S. Receipts of payment in respect of the repairs carried out by the very contractor and bearing dates which spanned between 5th March 1980 and 20th December 1981 are Exhibits S1, S2 and S3.
It is Defendant’s/Appellant’s case also that the land and house in dispute is not abandoned property as Jumbo Ovunwo is an indigene of Rivers State; that the plaintiff/Respondent had visited the land in dispute and requested them to vacate the house as same had been sold to them by one Alinonu. Plaintiff/Respondent had, with pw4 taken the Appellant to court per Exhibit Q whereat the Appellant won. The Appellant entered a caveat, Exhibit T, following Plaintiff/Respondent’s application to the Rivers State Ministry of Lands for a certificate of occupancy in respect of the land and building in dispute. Respondent’s application for the grant of the certificate of occupancy was published in a Newspaper, Exhibit T1. Exhibits U, U1, U2, V V1, W, W1, X X1, Y and Y1 are rates demand notes issued to the Defendant/Appellant by the Port – Harcourt town Council and paid for by her. Appellant never bothered to go to the Rivers State Ministry of Lands to verify the title of the Respondent.
The case having been fully tried, including addresses of counsel was decided by the lower court, Rivers State High Court, Ogbonna J. presiding, in favour of the Plaintiff/Respondent. Being dissatisfied with the court’s judgment delivered on 30 – 1 – 2004, the defendant at the lower court appealed to this court vide her amended Notice of Appeal containing seven grounds.
In compliance with the rules of court, the Appellant has filed her brief of argument and, with Respondent’s failure to do same, moved the court to hear and determine the appeal on her brief alone. Three issues have been distilled from Appellant’s seven grounds of Appeal as calling for determination in the Appeal. The issues read:-
1. Whether Plaintiff/Respondent had sufficiently proved title to the land in dispute as to shift the burden of proving same on the Defendant (Grounds 1, 3, 4 and the amended Notice of Appeal).
2. Whether Exhibit E (a letter from an officer in the Ministry of Lands.) is capable of amending Exhibit D (an official gazette by the Governor) Ground 5 of the amended Notice of Appeal.
3. Whether Exhibit R (Defendant’s/Appellant’s deed of conveyance) could in the circumstances of the case be said to establish title to a distinct parcel of land from that dispute) (Grounds 2 and 7 of the amended Notice of Appeal).
Arguing the Appeal under their first issue, learned Appellant counsel submits that sections 135, 136 and 137 of the Evidence Act place the legal burden of proof on the Plaintiff and that in respect of declaratory reliefs the plaintiff must rely on the strength of his case. He is disentitled to exploit the weakness of the defendant’s case. The burden of proof remains, contends learned Appellant counsel, on the plaintiff and shifts only where the plaintiff has discharged the initial onus. Learned counsel cited and relied on the decisions in Adeniran v. Alao (1992) 2 NWLR (Pt. 223) 350 at 367 – 368, Adeleke v. Iyand (2001) FWLR (Pt. 60) 1580 at 1594, Jules v. Ajani (2001) FWLR (Pt.45) 763 at 772, Sanusi v. Amoyegun (1992) 4 NWLR (Pt. 237) 527 at 547 and Aromire v. Awoyemi (1972) 1 NWLR (Pt. 1) 101. The lower court has in the instant case, it is argued, ignored this trite principle and found for the Plaintiff/Respondent who has not made out a prima facie case of his title by leading evidence on material issues. Instead, the court went straight into enquiring whether or not the Defendant/Appellant had proved her title. The courts’ failure to decide on those material issues led to the court’s perverse decision which the Appellant is entitled to have this court set – aside. Learned counsel further relies on Ejikeme v. Amaechi (1998) 3 NWLR (Pt. 542) 456 at 472.
In further argument, learned Appellant counsel submits that Plaintiff/Respondent in paragraphs 5, 6 and 7 of his amended statement of claim traces his title to one Charles Nyeowa while the Appellant/Defendant traced hers to Chief Jumbo Ovunwo, a parallel root of title. From his pleading and evidence thereon the Respondent traced his title further to one M. D. Okechukwu, an Igbo man, rather than a native of the place where the land in dispute is situated.
Again, the two documents the Respondent relied out, it is contended, are unhelpful. Both Exhibits A and B do not relate. Whereas Exhibit B relates to a parcel of land on the left hand side of Port Harcourt/Owerri Road, Mile 3 Diobu along Nkpor lane and known as Nkpor but cancelled and substituted with Akwuodo. The subject matter of Exhibit A, on the other hand is, 4 Christ Apostolic Street, Mile 3 Diobu, Port Harcourt. The subject matter in Exhibit B has no relationship with that of Exhibit A. Furthermore, Exhibit B has survey plan No. ECRS/231/78 of 19/1/72 annexed to it while it refers to a different survey plan No.ECRS/213/78 dated 12/1/78. The lack of nexus between the Exhibits and the survey plans on the one hand and Exhibit B with Exhibit A on another vis-d-vis the land are fatal to Respondent’s case.
Lastly, under their 1st issue, learned Appellant counsel argues that Exhibits A and B and indeed Exhibits C and D the instruments of transfer of the property in dispute by the Rivers State Government from the Abandoned property Authority to one Mr. Ahonu as well as the official gazette publishing the transfer are of no probative value to justify the court’s reliance on them. Firstly, Exhibit C cannot transfer title to another where the person does not have the necessary title. The two documents do not cure the defects in Respondent’s title as evidenced by Exhibits A and B. Learned counsel relies on the cases of Igbongidi v. Umelo (1993) 8 NWLR (Pt.310) 130 at 138 and Ihekwoaba v. ACB Ltd. (1998) 10 NWLR (Pt.571) 590 at 608. Further relying on Romaine v. Romaine (1992) 4 NWLR (pt.238) 650 at 662, learned counsel submits that the Exhibits having failed to prove Respondents’ title, the lower court is wrong to have awarded same to him.
Under Appellant’s 2nd issue, learned counsel cites and relies on section 22(1)(a) of the international Law Cap. 66 Laws of Eastern Nigeria (1963) applicable to Rivers State and Ibrahim v. JSC (1998) 14 NWLR (Pt.584) 1 AT 34 and submits respectively that Exhibit D being an official gazette of Rivers State and made by the Governor of the State could only be amended in the manner provided for by the law. Exhibit E, it is argued, cannot as it has been found by the lower court, be an amendment to Exhibit D. The property in dispute, therefore, has been released to Mr. Ahonu rather than Alimonu the Respondent purportedly bought the property in dispute from. Learned counsel urges that we so hold.
As for their 3rd issue, learned Appellant counsel submits that the identity of the land in dispute had never been an issue between the parties either as to name or size. There is nothing in parties’ pleadings and evidence to support the lower court’s finding that Exhibit R relates to a piece of land other than the one in dispute is therefore wrong. Learned counsel relies on the decision in Atoledgbe v. Shorun (1980) 1 NWLR (Pt.2) 360 at 376. He further contended that since both parties are at one as to the identity of the land and the only evidence adduced by the plaintiff/Respondent as to the piece of land being built is the oral testimony of PW4, the court’s further finding that the land belongs to the Respondent inspite of Appellants possession and the further testimony of DW2 that his father owned the building on the land in dispute which he rented out before the civil war, and that the building subsequently went into disrepair, is equally a serious error on the part of the court. Respondent, it must be concluded, has not proved his title by any of the five recognized methods and it is perverse for the lower court to have granted his title in that situation. The party who has adduced more evidence as to the building on the land which the lower court seem to emphasize will only be entitled to damages for trespass. The Respondent has not even proved that much to be so entitled. Learned counsel commends the decision in Registered Trustees of the Diocese of Aba v. Nkume (2002) FWLR (Pt.90) 1270 at 1282 and Nteogwuije v. Ikuru (1998) 10 NWLR (Pt.569) 267 at 290 and urges that the issues in the appeal be resolved against the Respondent and the appeal allowed.
The first finding of the lower court which gave the Appellant the grief argued under her first and third issues for determination is at pages 111-112 of the record of appeal and reads:-
“From these two cases cited by both counsel the parties claim to be in possession. The law, therefore is that when both parties claim possession the question may be determination by resolving the issue of title. Trespass will be at the suit of one between the two who can show that title is in him. See Chukwu v. Nnaji (1990) 6 NWLR (Pt.156) 367 at 370 ratios 5 and 6. It is the law that a party who desires to dislodge another who is in possession has to show better title see Adeniran v. Alao (1992) 12 NWLR (Pt.223) 350 at 357 ratio 2 (underling mine for Emphasis).”
Appellant’s grouse under her first issue for determination is that the lower court had placed the wrong onus of proof on her; that Respondent case being for declaratory relief the latter must succeed on the strength of his case and not on the weakness of the Appellant’s case; that Respondent never bore the initial burden the law placed on him and that admitting without conceding that the he did, Respondent never proved this case and would not have gotten a favourable decision but for the fact that Appellant’s case was wrongly considered on comparative basis with that of the Respondent.
With the greatest respect, learned Appellant counsel is clearly wrong in his submissions. The procedure adopted by the lower court and the decision it reached following the adoption of the procedure is beyond fault.
The law is that a party who desires to dislodge another who is in possession has to prove a better title. Thus where the Defendant in an action for declaration of title is in possession even though adverse, the burden is cast on the plaintiff to prove that the Defendant is not the owner of the land in dispute. If the title of the plaintiff out of possession is established, the defendant in possession successfully resists the claim if he shows a better title or better right to possession.
In Amakor v. Obiefuna (1974) 3 SC 67 the Supreme Court relied on its earlier unreported decision, Godwin Egwuh v. Duro Ogunkehin, case No.529/66 decided on 28th Feburary 1969, and re-enunciated the principle. The principle has remained what these earlier cases say it is ever since. It is that where it is alleged that someone in possession of land is a trespasser, the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party. See also Adeniran v. Alao (1992) 2 NWLR (Pt.223) 350 and Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 701.
Learned Appellant counsel must further be reminded that though by virtue of S.137 of the Evidence Act, the burden of proof in civil cases is on the party who asserts a fact to prove same, the standard of proof required is on a preponderance of evidence and balance of probabilities. Thus in such case parties must prove their case on preponderance of evidence and on balance of probabilities. It is after the initial burden of proving the case has been discharged in accordance with this principle of law that the burden shift and continues to shift. Where the plaintiff fails to discharge this initial burden the defendant would not be required to prove any fact and the plaintiff would not be allowed to rely on the defendant in order to succeed. See Longe v. FBN Plc. (2006) 3 NWLR (pt.967) 228; Audu v. Guta (2004) 4 NWLR (Pt.864) 463, Mani v. Shanono (2006) 4 NWLR (Pt.969) 132 and Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) 65.
In applying the foregoing principles to the facts of the instant case, the lower court first summarized the evidence of the Plaintiff/Respondent at page 112 of the record thus:
“In addition to Exhibits A and B, plaintiff tendred Exhibit C – the instrument of transfer which No. 4 Christ Apostolic Street, Mile 3 Diobu was released, to G. N. Alinonu (plaintiff’s vendor. Exhibits D and D1 gazette publications regarding the release of the property in dispute. Exhibit E which corrected the name of Alinonu which was previously wrongly spelt as Ahonu, Exhibit F – a letter of introduction to occupants of No.4 Apostolic Street, that G. N. Alinonu is the owner of the property and Exhibit H. The change of ownership from G. N. Alinonu to Silas Owerre (The plaintiff). These Exhibits confirm the story of PW4 that he built the house, otherwise it could not have been released to him by the Abandoned property Authority. These are Exhibits showing that tenant later were paid by the plaintiff.”
As to the evidence of the Appellant/Defendant the court found as follows:
“On the part of the Defendant she tendered Exhibit R, a registered instrument to show that she has a better title to the land. Looking at the survey plan annexed to Exhibit R there is no building hereon. The recital made no reference to any structure whatever on the land. By the testatum the vendor conveyed to the purchaser a parcel of land measuring 464.24 sq. yards known as No.4 Christ Apostolic Street Mile 3 Diobu, Port Harcourt without the mention of any structure on the land”
Having accepted the evidence of the Respondent as given, the court assesses that of the Appellant at page 113 thus:
“When one considers that Exhibit R was made in 1975 5 by which time Defendant said she went, into possession of the property in dispute, and the fact that Exhibit R does not show any structure on the land, one is compelled to raise an eyebrow, the only conclusion that a reasonable man will arrive at in that situation is that the property in Exhibit R is different from the one in dispute their having identical numbering not withstanding. The extension of this conclusion is that Defendant could, nor have gone ahead to renovate a house she did not buy. Stretched furthere, I have no doubt in my mind that Exhibit R does not confer title on the defendant over the property in dispute in this suit but on a different property.”
The Defendant/Appellant to whom the burden of proof shifted, the lower court found, failed to discharge the burden. It held at page 113 of the record as follows:
“From the foreging there is no question of who has a better title of the two because the title of the Defendant is not on the No.4 Christ Apostolic Street, which was already built even before the making of Exhibit R.
Defendant did not give evidence as to the root of her title to the property in dispute because her vendor did not sell and/or convey the building to her. She did not give evidence as to who built the house which she repaired. She therefore cannot be heard by say PW4 did not build the house, as it was not built by Jumbo Ovunwo her vendor. She has left pertinent questions unanswered and thereby weakened her case. I hold without fear of contradiction that Exhibit R does not relate to the property in dispute. I am satisfied that the Defendant has not established any title much more better title that can be compared with that of the plaintiff.”
It is indeed clear for the foregoing passages that the Respondent has not only discharged the burden of proving on preponderance of evidence that his case is more probable, the Appellant has not, inspite of her being in possession, succeeded in proving, as laid down in Amakor v. Obiefuna (supra), that she has a better title or right to possession. The Respondent, cannot in law, as correctly found by the lower court, be stopped.
Under her 3rd issue, the Appellant asserts that Exhibits A and B are unregistered purchase receipts. The two, it is contended, are inadmissible as evidence of title. That is indeed the law. It cannot be taken away from learned Appellant’s counsel.
Exhibits A and B are pleaded and relied upon by the Respondent as purchase receipts. They are pleaded and exhibited as acknowledgement of the payment of money in respect of the land and building in dispute. It has been held in a seemingly endless number of cases that they are admissible as acknowledgement of the payment of the money in respect of the property in dispute. The Respondent in the instant case who relies on these unregistered documents is deemed to be in possession following his purchase of the properly in dispute and arising from that possession a presumption is created of an equitable interest capable of being converted into a legal estate. See Ogunbanbi v. Abowab (1951) 13 WACA 222, Fakooya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74 and Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370 at 384. Respondent’s equitable title endures except where, by evidence, the Appellant succeeds in rebutting this presumption. As already shown through the lower court’s judgment, the Appellant has not so succeeded. The lower court has put its position in that regard more succinctly at page 144 – 155 of the record thus:-
“Plaintiff right of possession which accrued to him from the sale to him of the property by E.N. Alinonu, coupled with Exhibit ‘A’ created an equitable interest which is as good as a legal interest. See Ikonne vs. Wachukwu supra Ratio 7. The learned counsel for the defendant submitted that there is no evidence that PW4 built the house as no building plan was produced. Counsel made reference to a survey plan No.ECRS/213/78 dated 12th January, 1978, which he said was referred to in Exhibit ‘B’. I regret to say that there is no such reference in Exhibit ‘B’.
By Exhibit ‘B’ M. D. Okechukwu bought land from Charles Nyeowa, a native of Diobu as pleaded in paragraph 7 of the Further Amended Statement of Claim. Defendant merely denied that paragraph in paragraph 8 of the consequential Amended Statement of Defence without going further to say who built it. DW2 the son of defendant’s vendor did not say his father built the house. I have taken judicial notice of the fact that Abandoned Property Authority used Instrument of Transfer to release abandoned houses to their owners. This therefore settles once and for all the imputations that pw4 did not build the house, which is the subject matter of this suit.”
Again, on the authorities, this conclusion cannot be faulted. Appellants 1st and 3rd issues are, therefore, resolved against her.
Lastly, learned Appellant counsel challenges the lower court’s acceptance of Exhibit E as a valid correction of the mistake of the spelling of PW4’s name in Exhibit D1. He insists that by S22 (1)(a) of the interpretation Law Cap. 66 of the Eastern Nigeria, 1963, Exhibit D1 being an instrument could only be validly amended by the very person who made it and Exhibit E that is not made by the Governor of Rivers State who made Exhibit D1, could not have validly amended the latter. He further argues that Exhibit D1 is also a registable document and should same be deemed to have validly been amended, being unregistered, it is not admissible as evidence of title in respect of the land in dispute.
Appellant counsel’s argument hinges on the, wrong postulation that Exhibit D1, the gazette that supposedly contain PW4’s wrongly spelt name is a title document. Exhibit D1 as supposedly amended by Exhibit E is not an instrument of transfer of title within the con of section 18 of the Abandoned Property Edict No.8 of 1969. The document does not vest any interest in the transferee that he does not already have. The section provides:-
“By instrument of transfer to the owner of every abandoned properly, the right to occupy or control and manage such property, provided that before so doing, the Authority shall satisfy itself that the person to whom the transfer is intended to be made is the owner of such abandoned properly in the same manner as it shall require proof for the purpose set out in section 13.”
The Supreme Court in interpreting the above section in relation to a similar situation as in the instant case in Igbongidi v. Umelo (1993) 8 NWLR (Pt.310) 130 at 138 stated thus:-
“The above definition is indicative of the fact that Exhibit B only conveyed management and control of an abandoned property which hitherto was under the supervision of the Abandoned Property Authority. Since the person to whom the house was transferred was the owner of the property, the instrument of transfer did not convey title to him, because he had never lost title to his property. What he lost was the possession when he fled Port Harcourt as a result of the Civil War. I agree therefore, with the finding of the court of Appeal that Exhibit B is not an instrument as defined under S.2 of the Land Instrument Registration Law Cap.72 Laws of Rivers State”.
In the instant case, Exhibit D1 as amended by Exhibit E is not a title instrument, and has not been pleaded as such by the Respondent. In his pleadings, Respondent relied on Exhibits A and B only as indicative of his purchase of the land and building in dispute. The weight the lower court gave these two documents in its determination of the dispute has already been recounted. The lower court’s reliance on Exhibit A and B rather than Exhibit D1 as amended or even Appellant’s Exhibit R1 as the source of title of the parties has not only been dwelt upon earlier in this judgment but endorsed.
Finally, were it even to be conceded that the lower court is wrong in its finding that Exhibit E is an amendment of Exhibit D1, Appellant must further establish the injustice the decision has caused him if the appeal must succeed on that note. See Omozegbian v. Adjarho (2006) 4 NWLR (Pt.969) 33 CA and Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (Pt. 879) 631. That has not been attested. In any case the decision of the lower court would have persisted on the basis of Exhibits A and B rather than Exhibit D as amended by Exhibit E. For all these reasons, Appellants 2nd issue also fails and is resolved against her.
In sum, the lower court’s decision that Respondent’s evidence, in comparison to that of the Appellant, is weightier and more probable. The appeal resultantly fails and cannot be faulted. It is accordingly dismissed at a cost put at N50,000 in favour of the Respondent.
ISTIFANUS THOMAS, J.C.A.: I have had the privilege of reading in advance, the read judgment of my learned brother, M. D. Muhamma JCA (OFR) just delivered, and I am in total agreement that, the appeal has no merit whatsoever. My learned brother, painstakingly, considered all the issues raised at the lower court and this court, and I have nothing to add but adopt the lead judgment as my own.
Though the respondent failed to contest the appeal by not filing respondent’s brief of argument, I abide with the consequential orders including costs in favour of the respondent and against the appellant.
T. O. AWOTOYE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother M. D. MUHAMMAD JCA. I agree with the reasoning and conclusions therein. I have nothing to add. This appeal lacks merit. It is accordingly dismissed.
I abide by the cost as assessed in the lead judgment.
Appearances
M. O. Bianeyin (Jr.) Esq.For Appellant
AND
Respondent absent.For Respondent
