MALLAM ALI KANO v. ALHAJI NUHU MAIKAJI
(2011)LCN/4545(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of May, 2011
CA/K/359/04
RATIO
DECLARATION OF TITLE TO LAND: DUTY IMPOSED ON A PLAINTIFF SEEKING FOR A DECLARATION OF TITLE TO LAND
It is well established that a Plaintiff seeking for a declaration of title to land bears the onerous duty in law to adduce credible and admissible evidence in establishment of such title. The Plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
PLEADINGS: WHETHER AVERMENTS IN PLEADINGS MUST BE PROVED BY EVIDENCE AND CONSEQUENCE OF A PARTY FAILING TO DO SO
It is the law that any party who desires judgment to be given in his favour as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. In other words, averments in pleadings must be proved by evidence unless admitted by the opposing party. If a party fails to do so then the party has not discharged the burden of proof. See A.G., Federation vs. A.G., Abia state (No.2) (2002) 6 NWLR part 764 p.542. He who asserts must prove, and it is not the duty of the Court to fill the gap that may exist in a party’s case if the party fails to adduce evidence to prove his case. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
POSSESSION: WHETHER LONG AND ADVERSE POSSESSION OF LAND POSSESSION CAN FOUND A CLAIM IN TITLE AGAINST THE TRUE OWNER
…possession no matter how long, cannot found a claim in title against the true owner. Possession may, under section 146 of the Evidence Act give a presumption of ownership, but it does not do more and cannot stand when another proves a good title. In Atufe vs. oghomienor (2004) 13 NWLR Part 890 p. 327 where the case of D. A. Costa vs. Ikomi (1968) 1 ALL NLR p. 394 per Lewis, J.C.A. at 398 /399 was referred to, it was held that the Respondent’s reliance on section 146 of the Evidence Act cannot avail him as the Appellant has not proved that he is the owner of the property. Further in Dokubo vs. omoni (1999) 8 NWLR Part 616 p. 647 or (1999) 6 SCNJ 168 per Onu, J.S.C., at 179, the Supreme Court held that: “The fact that a person has acquired rights of possession over parts of a piece of land in dispute will not affect the right of any other person to seek a declaration of title to the whole piece of land”. The grant was for a limited purpose could never ripen to an absolute ownership of the land adverse to the ownership of the grantor. Consequently, long and adverse possession of land cannot found a claim in title against the true owner”. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
DECLARATION OF TITLE TO LAND: WHETHER THE DUTY OF TRIAL COURT IN A CLAIM FOR A DECLARATION OF TITLE TO LAND IS MAINLY TO ASCERTAIN WHETHER THE PLAINTIFF HAS DISCHARGED THE ONUS OR BURDEN OF PROOF ON HIM; WHEN IS THE BURDEN ON THE PLAINTIFF SAID TO BE DISCHARGED
In a claim for a declaration of title to land the duty of trial Court is mainly to ascertain whether the Plaintiff has discharged the onus or burden of proof on him which entitles him to the declaration. This burden is only discharged when credible evidence of the highest probative value is adduced by the Plaintiff through witnesses in strength sufficient to outweigh other evidence and establish satisfactorily and unequivocally the title of the Plaintiff to the piece or parcel of land. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
PROOF OF OWNERSHIP OF LAND: WHETHER WHERE A PARTY WHO RELIES ON A PARTICULAR ROOT OF TITLE FAILS TO ESTABLISH SAME, CAN RELY ON A CONSEQUENTIAL ACTS FOLLOWING THEREFROM
The Registered Trustees of the Diocese of Aba vs. Helen Nkume (2002) I NWLR Part 749 pg 726, where the Supreme Court, per Kutigi J.S.C. (as he then was) stated that where a party’s root of title is pleaded as for example a grant, a sale, or conquest, e.t.c., that root of title has to be established first, and, any consequential acts following therefrom can then properly qualify as acts of ownership but, where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession, for the acts would no longer be acts of possession but acts of trespass. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
Justices
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
MALLAM ALI KANOAppellant(s)
AND
ALHAJI NUHU MAIKAJIRespondent
THERESA NGOLIKA ORJI-ABADUA, J.C.A (Delivering the Leading Judgment): By the Amended Statement of Claim dated 16/11/99 but filed on 2/12/99 in suit No. KDH/KAD/353/99 at the High Court of Kaduna State, the Respondent, claimed against the Appellant, as follows:
1. An order of Court Declaration that plot W.20B Rama Road, now plot 17B Danwaka Road, Kawo Kaduna belongs to the Plaintiff and not the Defendant.
2. An order of perpetual injunction restraining the Defendant, its agent, servant and or assigns from further trespass into the Plaintiff property.
3. An order of Court compelling the Defendant to issue the Plaintiff with all necessary documents of title for the portion sold to the Plaintiff by the Defendant in 1966″ .
The Appellant for his part, filed an Amended Statement of Defence, in which he counter-claimed as follows:
“(i) A Declaration that the Plaintiff having denied the Defendant’s over lordship over the piece of land in dispute forfeits his right to stay on the said piece of land from the date of his misbehaviour.
(ii) A Declaration that whatever, development or building carried out by the Plaintiff on the property in dispute, those developments/buildings belong to the Defendant in law.
(iii) An order ejecting the Plaintiff from the piece of land forthwith.
(iv) An order that the Plaintiff pays the Defendant mesne profit at the rate of N100 per month from January, 1984 when he (Plaintiff) started denying the Defendant’s over lordship over the piece of land in dispute.
(v) Such further order or orders as this Honourable Court may deem fit to make in the circumstance”.
The matter went to trial, and, after hearing the respective witnesses of the parties and the submissions of their respective Counsel, the trial Court held as follows:
“The Writ of Summons in this case was issued in August 1991. The Exhibits 4 and 44 were made in December 2001 and October 1997 respectively. In other words, they were made while proceedings were going on. No weight will be ascribed to them. See section 91(3) of the Evidence Act 1990.
On the counter-claim, the D.w.2 did not lead credible evidence to show the required amount for mesne profit.
He also did not lead credible evidence to establish the counter-claim. Instead, his evidence under cross examination supports the Plaintiff’s case that Plaintiff has been in possession. He also showed that there is a barrier between the house he presently occupies and that occupied by the Plaintiff.
The evidence before the Court is an exception to the rule which says the Plaintiff relies on the strength of his case.
In this respect the Plaintiff is entitled to rely on the evidence that supports his case.
I hold that the Plaintiff has proved that he is the owner of the property known as No. 178 Rama Road, Kawo, Kaduna which consists of 8 rooms and which he presently occupies. The proof is predicated on long possession and acts of Ownership. See also section 146 of the Evidence Act. The counter-claim has not been proved.
It is dismissed.
The prayers 1 and 2 as they appear in the Amended Statement of Claim dated 16/11/1999 are hereby granted.
The prayer No.3 is refused. The counter-claim is dismissed”.
The Appellant was piqued by the aforestated pronouncement of the trial Court, hence this appeal.
The Appellant, in his Brief of Argument, propositioned four issues for determination by this Court. They are as follows:
“1 . Whether a claimant to land having failed to prove his root of title as pleaded through sale can fall back and rely on acts of possession {presumption in section 145 Evidence Act) acts of ownership or on other matters to establish title.
2. Whether Plaintiffs occupation and possession of portions of the disputed area is conclusive evidence of claim to title to the whole land.
3. Whether facts mutually pleaded {or admitted} by parties need further proof at the existing trial.
4. Whether the trial Court was right in dismissing the counter-claim”.
As regards issue No.1, learned Counsel for the Appellant referred to the cases of Fasoro vs. Beyioku, NSCC (1998) Vol. 19 Part 1 page 705 at 710, paragraphs 5 – 15, Balogun vs. Akanji (1969) l ALL NLR 201 and submitted that it is erroneous for the trial Court to turn round and rely on acts of ownership and long possession to grant title to Plaintiff after having found as a fact that there was no evidence of sale to the Plaintiff. Counsel contended that acts of ownership will not confer a title on a claimant for declaration of title, whose root of title is sale and which root he cannot establish.
He further cited Fasoro vs. Beyioku (supra) at 710 paragraphs 45, 711 paragraphs 30 – 40. Counsel further submitted that where a person is allowed to remain in a house as an act of grace, long possession or acts of ownership cannot confer title of such land on such a person. He then, referred to the cases of Docosta vs. Ikomi (1963) ALL NLR 398, Piaro vs. Tenalo, per Obaseki, J.S.C.,
Digest of Supreme Court case pages 353 354, Ayodele vs. Olumide (1969) I ALL NLR 233, Part 840 page 311 SC and Section 145 (Now 146) Evidence Act, Abudu vs. Egbuaku (2003) 14 NWLR. Counsel stressed that under the section while possession may arise, a presumption of ownership, it does no more and cannot stand when another proves good title. Learned Counsel also stated that proof of good title supersedes or rebuts the presumption of ownership under section 146 of Evidence Act. He argued that the trial Court wrongly applied section 146 of the Evidence Act to presume ownership in favour of the Plaintiff even as the Defendant’s title was not in dispute. Counsel finally referred to the case of Abudu vs. Egbuakun (supra) and stated that the presumption in section 146 is not in favour of a party who is in possession with permission.
In relation to issue No. 2, learned Counsel stated that the totality of the evidence adduced by the Respondent shows that the Plaintiff merely occupied some rooms out of the Defendant’s house wherein he lives. He referred to the testimony of P.W.2 at page 41 of the record where he told the Court that the Respondent told him that the Appellant said he will sell some rooms in his house to him.
Counsel expressed that the Plaintiff did not ask for partitioning of the property yet he is asking in his third relief that the Court should compel the Appellant to issue him with all relevant documents of title in respect of the portion sold to him. He argued that the said portion the Respondent sought for was not certain still the Court granted reliefs 1 and 2 but refused the third relief. On this footing, learned Counsel submitted that, in any matter relating to dispute of ownership of land, the issue of occupation and possession of portion of disputed area cannot be relevant evidence of title to the whole area. He then, referred to the case of Shoemaker vs. Oniwe (1958) SC NLR 239 and stressed that it was improper to have granted the Respondent a declaration of title over the whole land.
In connection to issue No. 3, learned Counsel submitted that the various acts of ownership i.e., that the Respondent connected water and electricity to the house, were not pleaded and they go to no issue. He then referred to the case of Njoku vs. Ameh Digest of Supreme court cases (1956 – 1984) Vol. 2 pages 392 – 394 and persuaded this Court to reject or expunge the same from the record as parties are bound by their pleadings. On the issue of whether or not the Defendant challenge the Plaintiff s acts of ownership, Counsel made reference to paragraphs 10, 13, 14, 15 and 16 of the Amended Statement of Claim and paragraphs 8, 11, 14, 15 and l6 of the Statement of Defence and submitted that such fact having been pleaded by both parties, needed no further proof. He referred to section 7 5 of the Evidence Act and the cases of oduka & sons vs. Kadumu (1967) 5 NSCC, p. 290 at 294, line 22 and Awote vs. Owodunni (1937) NSCC, Vol. 18, p. 591 and argued that, it was not necessary for the Appellant to prove that he challenged the plaintiff as the admissions on the pleadings were sufficient evidence of the challenge.
On issue No. 4. Counsel for the Appellant submitted that the trial Court was wrong to have dismissed all the heads of the counter claim. He stressed that the Respondent failed to prove that the Appellant had divested himself of the title which he the Respondent originally admitted belonged to the Appellant. He argued that the Respondent’s act of setting up title adverse to that of the Appellant (or denial of Defendant’s over lordship title) is enough for the Court to make an order of forfeiture against the Respondent and to give possession to the Appellant. He then, referred to the Supreme court case of Onotaire & Ors vs. Onokpasa & Anor (1984) NSCC, Vol. 15, page 791 at 90-1 per Nnamani, J.S.C. It was stated therein that on denial of over lordship a title forfeiture was automatic.
Furthermore, Counsel referred to Orianwo vs. Okene S. C. (2002) 14 NWLR Part 786 p. 156 at 193 para. D – F and submitted that based on the doctrine of QUIC QUID PLANTATUR SOLO SOLO CEDIT, the developments on the said land belongs to the Appellant.
The Respondent however in his Brief of Argument adopted the four issues formulated by the Appellant for consideration of this Court.
Submitting in respect of issue No. 1, learned Counsel for the Respondent, A. O. Mohammed Esq; referred to the cases of Owhonda vs. Ekpechi (2003) Vol. 12 MJSC l, Adinakpa vs Nduka (2001) Vol. 9 MJSC 137 and Bianiko vs. Ogwuile (2001) Vol. 3 MJSC 1 and stated that the Defendant is caught up with the doctrine of delay, laches and acquiescence’ standing-by, and, thereby allowing the Plaintiff to expend his monies on the land, and exercising all acts of ownership as rightly found by the trial Court. He argued that the trial Court’s finding that sale was not established due to absence of written agreement as required by section 4(1) and (2) of the 1987 Edict, i.e. cap 36, Laws of Kaduna State, 1991 was erroneous since the transaction in question was carried out in 1966 before the promulgation of Edict 1987. Counsel further submitted that land transactions between natives can be done orally as stipulated in section 3 of the Land Tenure Law, cap 59 of Northern Nigeria which was the law applicable at the time the transaction was entered into by the parries. He contended that section 68(2) of Edict No. 20 of 1990 is an exception of the laws which require such transactions to be in writing. He said that the said section 68(2) of Edict No. 20 of 1990 allows such contract to be made orally. He urged this Court to invoke the provisions of section l6 of the Court of Appeal Act to vary the portion of the trial Court’s judgment which said that the Plaintiff has not established evidence of sale. He argued that the legal authorities cited by the Appellant in respect of issue No. 1 did not preclude the Respondent from relying too on other facts.
Arguing on issue No. 2 Respondent’s Counsel stated that plot No. W 20B Rama Road now plot No. 178 Danwaka Road, is different and distinct from plot No. 20B Rama Road, Kaduna. He referred to paragraphs 12 and I 7 of the Plaintiff Statement of Claim. Further, Counsel submitted that reliefs 1 and 2 granted by the Court were in order as the said property was properly demarcated and partitioned by a fence and the Plaintiff claim to long possession was duly established. He said that the Appellant’s House No. as given by him in his Statement of Defence is No. 208 Rama Road, Kaduna and same is also known as W20 Rama Street. He submitted that by the pleading of the Respondent, he carried renovation work on the property in 1984 which included fencing of his own portion.
Counsel said that the argument of the Appellant that the property was not partitioned lacked both substance and merit. Counsel then urged this Court to refuse grounds I and II (2) and dismiss this appeal for lacking in merit and in substance.
With respect to issue No.3, Counsel submitted that while the Appellant referred to paragraph 10 of the Statement of Claim, he failed to refer to the Plaintiff’s acts of demolishing the two rooms and a palour mud building in 1968 and rebuilt same into 8 rooms and changed the roof from thatch roof to zinc roof and partitioned same which was never challenged before any Court of Law until October 1990, that is, after about 24 years. Counsel further referred to the oral testimony of Mai – Unguwa Rabiu who testified as P.W.1 in the previous proceeding and which said evidence in the previous trial was tendered at the trial Court as Exhibit 2 and which was excluded during- the compilation of the record of this appeal to conceal the fact that when the Defendant challenged the Plaintiff on the renovation being carried out in 1984, the disagreement was resolved by the District Head, Mai Unguwa and whereof the Defendant agreed not to disturb the Plaintiffs title or ownership over the same. Learned Counsel contended that for the Appellant to have remained silent for 6 years from 1984 to 1990 before heading to the District Court and Rent Tribunal, clearly shows that he was contented and satisfied with the settlement reached by the District Head Mai – Unguwa Rabiu or accepted the act of the Plaintiff in renovating his portion of the land. Counsel further argued that, the act of the Appellant in leaving out Exhibit 2 which were the testimonies of the two vital witnesses that testified before the Honourable Justice A. D. Yahaya who previously tried the suit before it started de novo before the trial court in which the Defendant’s counsel duly cross-examined them and subsequently addressed the court on a no case submission which was over-ruled goes to show that it should not have been favourable to him, hence, the reason for excluding same as envisaged by section 148(d) of the Evidence Act. Learned Counsel submitted it is trite law that any fact pleaded in respect of which no evidence is led is deemed to have been abandoned therefore. He referred to the cases of UBN vs. Emole (2002) Vol. 1 MJSC 126, A.G., Federation vs. A.G Abia State (2002) vol. 6 MJSC 1, and olarewaju vs. Afribank (2001) Vol. 6 MJSC 6g and asserted that, the Appellant never led evidence in support of the averments posited at paragraphs 8, 11, 14 and 15 of his Statement of Defence, by either calling the elders mentioned therein or tendering the various court/Rent Tribunal processes pleaded thereat, therefore, they are deemed abandoned. Counsel further stated the Defendant’s averments at paragraphs 10, 13, 14, and 15 of the Statement of Claim vis a vis paragraphs 8, 11, 14 and 15 of the Appellant’s Statement of Defence do not in any way amount to evidence of the fact that the parties joined issues. Counsel emphasised that the authorities, i.e., Oduka & Sons vs Kadumu (supra) Sanusi Alade v. Yesufu Adebiyi (supra) and Awote v. Owodunim (supra) cited by the Appellant’s Counsel are inapplicable to this appeal as they relate to matters of estopel per rem judicatam, and no previous judgment was pleaded or tendered as to warrant their invocation. He urged this Court to refuse this ground of appeal and dismiss same accordingly, as it lacks merit.
Concerning issue No. 4, learned Counsel for the Respondent argued that the evidence adduced by the Respondent remained uncontroverted and unchallenged and that the evidence of the Appellant as D.W.2, totally corroborated and re-affirmed the case of the Respondent i.e. the Plaintiff, then bringing it within the scope of the exception to the rule that the Plaintiff must rely on the strength of his case. He contended that the decision in Onotaire & Ors vs. Onokpasa & Anor (1934) Vol. 15 NSCC 791 at 904 and Orianwo vs. Okene (2002) 14 NWLR Part 786 page 156 at 193 paragraphs D – F are inapplicable to the instant case, as the fact and issues involved are completely distinct and separate. He stressed that the doctrine of ‘quid, quid plantatur solo cedit’ applies’ where one wrongfully and knowingly develops on another’s land after being restrained. He stated that in the instant appeal, the Respondent developed on his land as affirmed by the Court between 1966 and 1968 even before the institution of the action.
The first issue presented for consideration of this Court in this appeal is, whether a claimant to land having failed to prove his root of title as pleaded through sale, can fall back and rely on acts of possession (presumption in section 145 of the Evidence Act), acts of ownership or on other matters to establish title’.
It is well established that a Plaintiff seeking for a declaration of title to land bears the onerous duty in law to adduce credible and admissible evidence in establishment of such title. The Plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case.
It had, equally, been stated in a plethora of cases that for a Plaintiff to succeed in such a case, he could prove his ownership of the said land or title therein through any of the five different ways long entrenched by the Supreme court for proving the same, that is to say; ( 1) by traditional evidence, (2) by production of documents of title duly authenticated in the sense that their due execution must be proved unless they are they are documents twenty or more years old produced from proper custody; (3) by positive acts of ownership such as (selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, of which are numerous and positive enough to warrant the inference the person is the true owner; (4) by acts of long possession and enjoyment of the land. (5) by proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute.
It was stated by the Supreme Court in Eze vs. Atasie (2000) 10 NWLR Part 676 p. 470 that a Plaintiff seeking to prove his ownership of a piece of land must rely on one or other of the five methods of proof listed above to sustain his claim and having done so, he is not allowed to shift his ground of proof without amending his pleadings accordingly.
As rightly asserted by learned Counsel for the Appellant, it is settled that where a party pleads and relies on a particular root of title to land in dispute he has a duty to prove same satisfactorily. And where the proof of source of title is lacking and rejected by the trial Court, the party’s foundation of the case has collapsed notwithstanding evidence of positive and numerous acts of ownership. See Yusuf vs. Kode (2002) 6 NWLR Part 762 p.231 at 253 where the cases of Odofin vs. Apoola (1984) 11 SC 72 at 114, Emegokwue vs. Okadigbo (1973) I ALL NLR 379, Magaji vs. Calbury (1985) 2 NWLR Part 7 p. 393 and Adisa vs. Oyinwola (2000) 10 NWLR Part 674 p. 116.
To further buttress this point, reliance would equally be placed on Omotala vs Co-operative Supply Association, (2010) 16 NWLR Part 1218 p. 1, where the Supreme Court held that a Plaintiff who pleaded a particular root of title and failed to prove that particular root of title, is not permitted to rely on another mode of acquisition not pleaded by him as his root of title to support his claim.
It would, therefore, be imperative at this juncture to reproduce some paragraphs of the Respondent’s Amended Statement of Claim to ascertain the central point of his claim. The Respondent pleaded at paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of his Amended Statement of claim thus:
“3. The Plaintiff avers that sometimes in 1966, the defendant sold to the plaintiff a parcel of land partly developed with 2 rooms build (sic) of mud – sand.
4. That at the time of the sale of the land and 2 rooms with thatch roof to the plaintiff by the defendant, the transaction was made in the presence of the following persons, as witnesses to the sale transaction namely:-
i. Mamman Hakimi
ii. Mallam Bala Liman
iii. Hakimi Kawo
iv. Sakin Kawo
v- Mai Unguwa – Damake
vi. Mai Unguwa Rabiu
vii. Liman Mallam Dogara
viii. Kaki Dankoli
5. The plaintiff avers that before he purchased the said plot of land he had never known the defendant in the suit personally and that the offer to sell the said land was brought to his notice by one Mamman Hakimi who was so authorized by the defendant to secure a prospective buyer.
6. The plaintiff avers that the said parcel of land containing 2(two) rooms only with thatch roof and the remaining undeveloped portion was sold to him personally by the defendant in the presence of the witnesses referred to in paragraph 4 of this statement of claim for the sum of E70.00 (SEVENTY POUNDS) in 1966.
7. That after the said sale transaction, the plaintiff commenced development on the said land and built additional rooms totalling 8 (Eight) rooms of concrete block with zinc roofing sheets.
8. The plaintiff avers that since he purchased the defendant’s land in 1966 and moved into same in 1968 after carrying out all necessary developments on the property, he has been in Peaceful and quiete possession and occupation of the said premises to date.
9. The plaintiff further states that when he purchased the said land, the entire contract transaction was carried out verbally.
10. The plaintiff avers that while his occupation after purchase of the said land, the defendant sometimes in 1984 when the plaintiff was effecting renovation in his house challenged the plaintiff and this led to a dispute which was later resolved by the District Head, Mai-Unguwa Rabiu where of the defendant admitted having sold the place to the plaintiff in 1966 and underlook not to disturb the plaintiff any longer or challenge the plaintiff title of ownership over same. And this dispute was resolved in the presence of one Alhaji Usman, one Mallam Bala, Liman and Alhaji Ibrahim.
11. The plaintiff further aver that the said premises now occupied by him has been in his possession and occupation since 1966 to date and has been responsible in the payment of grounds rent to the Kaduna State Government and shall at the hearing of this action find and rely on Kaduna State Government, Kaduna Local Government Revenue collector Receipt No. 125801 dated 8/7/91 and Receipt No. 072808 dated 6/11/85 and the Kaduna Local Government letter of demand of plot dues to the Plaintiff dated the 6th day of November, 1985.
12. The Plaintiff aver that since he purchased the land and the 2 Rooms from the Defendant in 1966, his property and plot has been known and referred to as plot No. 20B Rama Street and in 1985 changed to No. 178 Danwaka Road, Kawo Kaduna”.
Paragraphs 3,4,5 and 6 of the Respondent’s Amended Statement of Claim were clear as to the ground they intended to postulate. It is very explicit in the said paragraphs that the Respondent’s claim was grounded on the alleged sale of the said House No. 178 Danwanka Road, Kawo, Kaduna (formally known as 20B Rama Street).
It must be observed that the averments at paragraphs 7, 8 and 11 were off-shot of the said sale, stating clearly that the Respondent gained entry to the said two room thatched house of the Appellant, reconstructed the same to eight (8) room block – house with zinc roof and had remained in occupation and possession of the same, since 1966 only after the Respondent had sold the said two room thatched house to him in the presence of the witnesses enumerated at paragraph 4 of the Amended Statement of Claim. In the pleading, the Respondent traced his root of title to the said sale of the property to him by the Appellant. He was very explicit in the pleading as to how he acquired title over the land in dispute.
However, the Appellant denied ever selling the said property to him but asserted he merely permitted him to live on the premises with his family rent-free.
It needs to be emphasized that since the Respondent’s claim was premised on the fact that the said house in question was sold to the Respondent by the Appellant, the duty rested squarely on the Respondent to prove that the said house was indeed sold to him by the Appellant.
It is the law that any party who desires judgment to be given in his favour as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. In other words, averments in pleadings must be proved by evidence unless admitted by the opposing party. If a party fails to do so then the party has not discharged the burden of proof. See A.G., Federation vs. A.G., Abia state (No.2) (2002) 6 NWLR part 764 p.542.
He who asserts must prove, and it is not the duty of the Court to fill the gap that may exist in a party’s case if the party fails to adduce evidence to prove his case.
Further, possession no matter how long, cannot found a claim in title against the true owner. Possession may, under section 146 of the Evidence Act give a presumption of ownership, but it does not do more and cannot stand when another proves a good title. In Atufe vs. oghomienor (2004) 13 NWLR Part 890 p. 327 where the case of D. A. Costa vs. Ikomi (1968) 1 ALL NLR p. 394 per Lewis, J.C.A. at 398 /399 was referred to, it was held that the Respondent’s reliance on section 146 of the Evidence Act cannot avail him as the Appellant has not proved that he is the owner of the property. Further in Dokubo vs. omoni (1999) 8 NWLR Part 616 p. 647 or (1999) 6 SCNJ 168 per Onu, J.S.C., at 179, the Supreme Court held that:
“The fact that a person has acquired rights of possession over parts of a piece of land in dispute will not affect the right of any other person to seek a declaration of title to the whole piece of land”. The grant was for a limited purpose could never ripen to an absolute ownership of the land adverse to the ownership of the grantor. Consequently, long and adverse possession of land cannot found a claim in title against the true owner”.
In a claim for a declaration of title to land the duty of trial Court is mainly to ascertain whether the Plaintiff has discharged the onus or burden of proof on him which entitles him to the declaration. This burden is only discharged when credible evidence of the highest probative value is adduced by the Plaintiff through witnesses in strength sufficient to outweigh other evidence and establish satisfactorily and unequivocally the title of the Plaintiff to the piece or parcel of land.
The question now is, did Respondent place any credible evidence before the trial Court sufficient enough to prove his case?
To succeed, the Respondent must establish sale of the said house to him by the Appellant, and through no other means because no amount of acts of possession would avail him if at the end of the day there was no concrete proof of sale of the said land to him by the Appellant. The only better way to prove his title is to prove sale of the said plot by calling some of those he mentioned at paragraph 4 of his pleading that witnessed the sale of the land and his being put into possession by the Appellant if it were through customary sale of the said land to him. See The Registered Trustees of the Diocese of Aba vs. Helen Nkume (2002) I NWLR Part 749 p’ 726, where the Supreme Court, per Kutigi J.S.C. (as he then was) stated that where a party’s root of title is pleaded as for example a grant, a sale, or conquest, e.t.c., that root of title has to be established first, and, any consequential acts following therefrom can then properly qualify as acts of ownership but, where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession, for the acts would no longer be acts of possession but acts of trespass.
The Respondent called five witnesses before the trial Court. During the Respondent’s testimony before the trial Court as P.W.1, he said that one Hakimi, whom he described as a commission agent and a dealer, invited many people including him (Respondent) namely; Mai Unguu’a, Dan Wanka, Kalli Dan Koli, Mallam Dogara, Liman, Mallam Bala and his (Respondent’s) senior brother, Alhaji Tsoho for the sale of the land. When they gathered, the dealer said that the sale price was 100 pounds. His brother priced it for 60 pounds which he declined, following which his brother stepped it up to 70 pounds, which was accepted by the Defendant i.e. the Appellant. He said he gave 70 pounds to Mallam Bala Dillali, who, in turn, gave it to Mai Unguwa and Mai Unguwa then handed it over to the Defendant. He explained that no written agreement was executed by the parties. The property purchased comprised two rooms and a porch (zaire) with thatched roof. He explained that he demolished the house and constructed a seven bedroom zinc house on it. It is situated at No. 17 Rama Road, Kawo, Kaduna. As at the time he testified he had lived about 28 years thereon and was not paying rents to the Respondent. He had his peace and quiet in the house until the Appellant’s son came to him and said he would be packing his motorcycle in the porch. As a result, he summoned all those who witnessed the sale of the land to him, and they confirmed that to the Appellant’s son who then left.
After about 5 years, the Appellant instituted an action against him before the Magistrate Court claiming that he (the Appellant) lent his house to him (the Respondent) that, he never sold the same to him. The Respondent asserted he had been paying ground rents in respect of the land but had never paid any rents to the Appellant, and the Appellant had never requested for any. He said that amongst the witnesses to the sale of the said land, the only ones still alive as at then were Alhaji Tsoho, Liman, Mallam Bala and Rabiu Galadima. The deceased ones were Dan Wanka, Dankoli and Mallam Dogara. He tendered as Exhibits 1, 1A and 1B dated 8/7/91, 3/1/91 and 6/11/85 respectively evidencing the payments of ground rents by him. He said he erected the seven room house, with a kitchen, wall fence and an entrance about 27 years to the date he testified. He constructed veranda in front of the house, connected pipe borne water system and, electricity about 11 years and 10 years respectively then. He moved to the house from one Hajiya Hakama’s house where he lived prior to construction of his said house.
Under cross-examination he reiterated his statement in examination in chief and further explained that No. 17 B Rama Road is different from 17B Danwanka Road. The two houses have different
entrances. His house is 178 Rama Road. He did not know the number of the Appellant’s house. He further said that plot No. 178 Danwanka Road, Kawo, Kaduna is different from W20B Rama
Road, Kawo, Kaduna. P.W.2 Alhaji Usman Muhammadu who lives at W15 Rama Road, Kawo and who identified himself as the Respondent’s senior brother, testified that he was present when the Defendant agreed to sell the said land to the Plaintiff and they agreed on the price of 70 pounds.
He was at home when the Respondent called him and said that the Appellant wanted to sell some rooms in his house to him the Appellant). He P.W.2 came out and met others who had already gathered in front of the Appellant’s house. He helped in negotiating the purchase price which the Appellant accepted at 70 pounds. The Respondent then agreed to buy the house at E10. When the Appellant requested for payment, the Respondent pleaded to be given up to 7 days within which to pay. He, P.W.2 was not present when the payment of the purchase price was effected by the Respondent.
P.W.3 and P.W.4 further testified as to the sale of the house to the Plaintiff by the Defendant, although, they did not, themselves’ witness the said sale. P.W.5 was a Court – Clerk who tendered a certified copy of the record of proceedings before the presiding Court.
It is pertinent to observe that there is no distinct assertion by the Appellant both in his pleading and the evidence adduced before the Court as to the law under which the sale of land transaction was entered by the parties. Was it a legal transaction they had entered into or a sale under customary law. Obviously he could not have claimed transaction under the law since the alleged agreement was not reduced to writing.
It is indeed the law that customary sale of land could be made orally without being reduced to writing provided the payment of the purchase price was made in the presence of witnesses who, also were present when possession in the land was handed over to the purchaser. In the instant case, all the witnesses called by the Respondent did not testify to the fact that they witnessed payment of the said purchase price of E70 by him (Respondent) to the Appellant, or even handing over possession to him by the Appellant.
Even, P.W.2, the Respondent’s said senior brother, who, the Respondent alleged in his evidence was present when the payment , was made, clearly asserted he was not present at the said payment of the purchase price. Furthermore, none of the alleged witnesses to the alleged sale including Hakimi, the alleged dealer, was called to testify as to the pa1’ment of the purchase price and handing over possession of the premises, after the alleged payment, by the Appellant to the Respondent. It was unfortunate the Respondent could not produce Mai Unguwa Rabiu to testify on his behalf or even move the trial Court to go to Liman Mallam Bala’s house to obtain his evidence since he claimed he was sick and since it was through them he allegedly passed the purchase price to the Appellant. I must note that Exhibit 2 was merely tendered before the trial Court without a definitive purpose. It was not received in evidence on the basis that those who testified before the previous Court were sick or could not be reached without much expediture.
Not a single soul who allegedly witnessed the transaction which consisted of payment of purchase price and handing over possession of the said land to the Respondent, was called as a witness.
Learned Counsel for the Respondent raised the issue of laches and acquiescence and delay in the Respondent’s Brief of Argument but the law is that all equitable defences must be pleaded fully and with due particularity, therefore, since laches and acquiescence are equitable defences they must be pleaded or solicited for. Where they are not pleaded, it will be uncalled for to invoke the same, therefore, a party relying on the same must plead them, otherwise, they will go to no issue.
In the instant case, laches and acquiescence as defences were not specifically pleaded by Respondent. The Respondent utterly failed to plead the same and as such the submission of learned Counsel for the . Respondent in that respect is hereby not countenanced.
Accordingly, issue No. 1 is hereby answered in the negative.
The second issue that calls for this Court’s consideration is, “whether Plaintiff s occupation and possession of portions of the disputed area is conclusive evidence of claim to title to the whole land”.
It is evident in P.W.2’s testimony before the trial Court that it was a portion of the Appellant’s house consisting of either two or three rooms as the case may be that was allegedly sold by the Appellant to the Respondent, and, that it was the said two room thatched house the Respondent demolished and re-constructed to an eight room block house with zinc roof. The question is, suppose it were proven that only a portion of the said land was sold to the Respondent, could the Respondent have, as a result, in the eyes of the law, laid claim to the entire land? Certainly, ‘NO’-
The trial Court, after evaluation of the evidence, held in no ambiguous terms, and, rightly in my view, that there was no evidence of sale adduced before it by the Plaintiff.
It should be noted that the bone of contention between the parties was, “whether the said house No. 178 Rama Street, Kawo, Kaduna, was sold to the Respondent by the Appellant under any guise, either customarily or legally”, therefore, as far as the issue is concerned, the question of the plaintiff reconstructing the house and connecting electricity or pipe borne water to the house is entirely a different thing. So long as the Respondent’s claim pivoted on the fact that the said premises were sold to him by the Appellant, the duty rests squarely on the Respondent to prove how the said house was, indeed, sold to him by the Appellant. If there was no proof of such sale by the Appellant, the fact that the Respondent constructed even ten storeyed building or sky-scraper on the land or was letting the house out to third parties, can never transfer ownership of the said property to the Respondent. The fact that the Defendant did not challenge the plaintiff s said act of ownership notwithstanding. The burden of proof was on the Respondent to prove a valid sale, of the property to him since his claim of ownership was hinged on sale of the said property to him by the Appellant, and not on acts of occupation and Possession.
As I noted earlier, only a portion of the said land was alleged to have been sold to the Respondent. The sale of that portion was not proved before the trial court. There was no evidence of the specific area allegedly sold to the Respondent by the Appellant. This is a typical case where a survey plan should have been tendered to identify the exact portion that was allegedly sold outrightly to the Respondent and the situs of the reconstructed eight room block house, and, again the portion still retained by the Appellant, but, the Respondent did not produce such plan. Worse still, the observation made by the trial Court during its visit to the locus in quo was not stated any where in the record of appeal. Nevertheless, it is settled that before a declaration of title to land is granted, the land to which the claim relates must be identified with certainty. It is the duty of the Plaintiff to show the Court clearly, the area of the land to which the claim relates. If it is not so ascertained the claim must fail, and it must be dismissed. The most common and easiest way of establishing the precise area of land in dispute is by the production of a survey plan of such land. See Nruama vs. Ebuzoeme (2006) 9 NWLR Part 985 p. 212.
In the instant appeal, even though it was a two room thatched house of the Appellant that was allegedly sold to the Respondent, it was not shown whether it was on the same piece or portion containing the original two rooms that was constructed an eight bedroom zinc house or whether the then two bedroom house was situated on an expanse of land.
In Abejero v. Nabasa, Supreme Court Manual, 84831, it was expressed that while the petitioner has shown continued existence of these improvements on the disputed land, he has failed to establish the portion of the disputed land that his original nippa house, small store and wooden fence actually occupied as of January 24, 1947. In the absence of the proof, we cannot determine the land he actually possessed and occupied for 30 years. It was held therein that the basic presumption is that a person having title to land in dispute is in possession, thus where two persons claim to be in possession of land in dispute, the law ascribes possession of the land in dispute to the one with a better title.
Therefore, the Plaintiffs case does not constitute the well-nigh incontrovertible evidence necessary to acquire title through possession and occupation of the disputed land at least since 1947.
It is, therefore, my view in this appeal that as the Respondent has not adduced any evidence of title either to the land in controversy or to the entire land, he cannot be entitled to an order of declaration of title over the entire land. For an action for a declaration of title based on possession and occupation of the said land to prosper, it is essential that the Respondent seeking the declaration should prove by clear and convincing evidence the sale of the said property to him by the Appellant, but such was not performed by the Respondent herein. Accordingly, issue No. 2 is hereby answered in the negative.
In determining issue No.3, it is interesting to note that facts admitted by both parties in their pleadings, need not to be proved in any proceeding. The Court has to try the questions on which the parties are at issue, not those they have agreed, that is, issues are said to be joined on the pleadings when an averment in the opponent’s pleading has been denied or traversed. In the instant appeal, the Respondent pleaded, as x-rayed at paragraphs 10, 13,14, 15 and 16 of his Amended Statement of Claim all the challenges the Appellant had given to him in respect of his occupation and acts of possession over the land, which, the Appellant, at paragraphs 8, 11, 14, 15 and 16 of his Statement of Claim admitted as the true position. It was not in controversy by their pleadings, that the Respondent had challenged the Appellant for some years now over his various activities on the land but the challenge, I must say, started only in 1984 after about 18 years, the Respondent had been in possession. I totally agree with the submissions of learned counsel for the Appellant on this issue and hereby answer the same in the negative.
on the issue whether the trial court was right in dismissing the Counter – Claim, I think it pertinent to reproduce once again the paragraphs of the Appellant’s Amended Statement of Defence thus:
Counter- Claim
The Defendant repeats paragraphs 1-19 of the statement of defence (as if they were the Defendant’s Statement of Claim in this counter-claim) and further aver that:-
(a) The Plaintiff had unlawfully denied the Defendant’s over lordship and therefore loses his right to remain on the property, from on or about the Year 1984″.
Whereof the Defendant claims from the Plaintiff:-
(i) A Declaration that the Plaintiff having denied the Defendant’s over-lordship over the piece of land in dispute forfeits his right to stay on the said piece of land from the date of his misbehaviour.
(ii) A Declaration that whatever, developments or buildings carried out by the Plaintiff on the property in dispute, those developments/buildings belong to the Defendant in law.
(iii) An order ejecting the Plaintiff from the piece of land forthwith.
(iv) An order that the Plaintiff pays the Defendant mense profit at the rate of N100 per month from January 1984 when he (Plaintiff) started denying the Defendant’s over lordship over the piece of land in dispute.
(v) Such further order or orders as this Honourable Court may deem fit to make in the circumstance”.
On the relief No. (i) counter-claimed by the Appellant, I must say that it was not proven by the Appellant that the land in dispute or house in dispute was subject of customary tenancy in respect of which the Plaintiff was to be paying tribute or rent to the Defendant.
The evidence of D.W.2 could not lend much support to the assertion as he could not categorically tell the trial Court the kind of understanding both parties had over the land since he was not present in 1966 when the alleged understanding or agreement was reached by the parties or when the Plaintiff went into possession of the said house.
In his examination in chief, D.W.2 testified thus:
“I was born at the early part of the tenure of Emir of Zazzau Ja’afaru. My age is approximately 67 years. I entered the house while Gen. Gowon was in power. General Gowon was in power for 4 years before I enter the house. It is true to say that I entered the house in 1970. I would not be aware of what transpired between the two parties between 1966 – 1970 because I was not in the house at that time. As at the time the Plaintiff was given two rooms, there were only two rooms in that section. Myself and my wife were occupying a room together with daughter (deceased). The Defendant and his family’ were occupying 4 rooms. The Plaintiff was given two rooms. The house was facing East. Due to the misunderstanding of the wives, another entrance was made. There was a time when the Defendant traveled to Kano to see his mother. There was wind which blew off the roof. The Plaintiff then roofed the house with zinc. I was in the house at that time when the Plaintiff effected the repairs.
The repairs were not done between 1966 – 1970. All I know is that I was in the house at the time of repairs. I left the property for U/Dosa in 1975, i.e. the year General Gowon was overthrown. The Plaintiff did not build anything in that house up to the time I left that house. There was no light and water on that street as at 197 5 when I left”.
Under cross-examination he said as follows:-
“I entered the house while Gen- Gowon was in power. General Gowon was in power for 4 years before I entered the house. It is true to say that I entered the house in 1970- I would not be aware of what transpired between the two parties between 1966 197 0 because I was not in the house at that time”.
In Atanda vs Ajani (1989) 3 NWLR Part 111 p. 523, paras’ E – H, it was held that although the Rules of Court and evidence relieve a parry of the need to prove what is admitted, but, where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, nor by admission in the pleadings of the Defendant that he is entitled to the claim. The necessity for this arises from the fact that the court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.
This case later turned out to be the testimony of the Plaintiff against the Defendant, i.e. the Respondent against the Appellant in so far as the type of relationship they had over the said properly was concerned as none of the witnesses called by them witnessed the actual sale of the said house by the Appellant to the Respondent or creation of any customary tenancy between the parties. The evidence of D.W.1 clearly established that D.W.1 was not a witness to any kind of agreement or understanding reached by the Appellant and the Respondent over the said property.
It was not proved nor established that the improvements made on the property were not made without the authority of the Appellant. It is also the law that the fact that the Plaintiffs claims were refused does not entitle the Defendant to the claims or a declaration of title.
In the instant case neither the Plaintiff nor the Defendant proved his case before the trial Court. See the case of Onuche vs. Anyegwe (2001) 6 NWLR Part 708 p.127 in which it was held that where a Plaintiff s case for title in land was dismissed, such a dismissal does not confer title to the land in dispute on the Defendant.
It was the assertion of the Appellant that he merely granted the Respondent licence over the said portion of land, which D.W.1, attempted to corroborate with his seeming conjecture. Further, it was in the evidence of D.W.1 and D.W.2 that the roof of the said house was changed to zinc by the Respondent in the absence of the Appellant when wind blew off the roof. D.W.1 also mentioned that he was living in the house at the time the Respondent effected repairs on the house.
It is, therefore, imperative to note that a claim founded on allegation of customary tenancy which seeks a declaration that the Defendant is a customary tenant of the Plaintiff, and a forfeiture of the customary tenancy, postulates, that the Defendant is in exclusive possession of the land in dispute. And by the operation of section 146 of the Evidence Act, such Defendant is presumed to be the owner of the land in dispute until the contrary is proved to rebut the presumption. And the only way to rebut the presumption is by strict proof of the alleged customary tenancy. See Babatunde vs. Akinbade (2006) 6 NWLR Part 975 p. 44.
It is, also, the law that where a Plaintiff in a land case alleges that the Defendant is his customary tenant, the Plaintiff must plead the incidences of customary tenancy in that regard. The act of ownership must be satisfactorily established both in the pleading and on the evidence adduced to establish the same. See Dim vs. Enemuo (2009) 10 NWLR Part 1149 p. 353.
The main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour.
However, attention has to be drawn to the decision in Bassey vs. Bassey (2009) 12 NWLR Part 1156 where it was held that although payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because there are situations where tribute is not paid to the overlord and yet customary tenancy exists. For instance, where the tenant unequivocally recognizes the position of the overlordship of the landlord, a customary tenancy exists, whether tribute is paid or not.
This is because payment of tribute could be overlooked by the landlord as a result of kindness and charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. See the case of Akinlagun vs. Oshoboja (2006) 12 NWLR Part 993 p. 60 at 65.
Furthermore, it is the law that where there is no evidence of customary tenancy between the two parties the question of forfeiture does not arise. See Iroagbara vs. Ufomadu (2009) 11 NWLR Part 1153 p. 587, where P.W.2 called by the Appellant to support his case specifically testified to the fact that the Defendant was not a customary tenant of the Appellant and never paid tribute thereon, that the Respondent was given the land in dispute by the predecessor in title of the Appellant.
In this case, D.W.1 called by the Appellant said in his evidence in chief that neither he nor the Respondent paid any rent to the Defendant i.e. Appellant, and that he and the Respondent were merely given licence to live on the premises by the Appellant. The question is, how could D.W.1 have been believed, when he initially tied that he lived in the Appellant’s house during the early part of General Gowon’s regime, 1966, and that he knew the Respondent since General Gowon’s regime. His falsehood continued thus:
“I stated in his house during the early part of General Gowon’s regime i.e. 1966. I was there up to the regime of General Murtala R. Mohammed, i.e. 1975. I know the Plaintiff very well. I knew him since General Gowons regime. What I know on that house is that there was a time we said the afternoon prayer at about 4 p.m. We saw the Plaintiff. The Defendant asked the Plaintiff what was worrying him. The Plaintiff said his brother asked him to vacate his house i.e. his brother’s house. The Defendant then decided to give two rooms to the Plaintiff because they are all from Kano State. Mallam Tsoho Mairvanki is the brother of the Plaintiff. I know that the Defendant gave the two rooms to the Plaintiff. At that that time the house had a thatched roof ‘.
Then under cross-examination he realized the need to be truthful and answered:
“It is true to say that I entered the house in 1970. I would not be aware of what transpired between the parties between 1966 – 1978”.
He left the property in 1975″ .
He acknowledged he was not there in 1966 when the Respondent moved into the house and could not have known the terms which existed between the Appellant and the Respondent. Somehow, I feel the Appellant was equally, economical with the truth, because I could not comprehend how he remained there when the Respondent reconstructed the said two bedroom thatched house to an eight bedroom block house and he neither protested nor obtained injunctive orders then against the Respondent. Why did the Appellant have to wait till 1984 after about 18 years to challenge the Respondent? Why didn’t the Appellant endeavour to stop the Respondent in those early years in 1966 from pulling down the two bedroom mud-house and rebuilding it to eight bedroom block house with zinc roof? I believe there is more to this case than had been presented before the trial Court. It is regrettable that this case was shoddily’ handled and presented. Learned Counsel for the parties did not help much in assisting the trial Court to get to the truth of this case.
The Appellant never proved via his evidence adduced before the lower Court how much the Respondent was paying as tribute to him.
There was no clear proof of the kind of relationship the Appellant and the Respondent had with respect to the said land even though the Appellant was said to be the original owner. One, again, wonders why the Appellant should allow the Respondent to reconstruct the said two room thatched house to eight room block house. Something obviously transpired between the parties but unfortunately, none of them could prove any thing before the trial Court. If the Appellant merely granted the Respondent licence to live on the premises, the Appellant should then, embrace the method established by the laws to deal with licences. A licence is different from a customary tenancy. Only God in Heaven knows what transpired between these two people. None proved his claim before the trial Court and I would not because the Appellant was said to be the original owner award the title of the land to him when he has not proved his case. I am, therefore, inclined to agree with the opinion expressed by the trial Court that the Appellant did not lead credible evidence to establish the counter – claim.
I must say that I found ludicrous the failure of both the Respondent and the Appellant to prove their respective cases before the trial Court. It is sad if not regrettable that despite their cases being presented before the trial Court by their respective Counsel, none was able to put up an impressive case, and none of the witnesses called by them aided in proving their respective claims before the trial Court, that was most unfortunate.
In conclusion, and, for all the reasons I stated above, this appeal is allowed in part by me. Accordingly, the judgment of the trial Court, with respect to the substantive claim filed by the Respondent, holding that the Respondent has proved that he is the owner of the property known as No. 17B Rama Road, Kawo, Kaduna which consists of 8 rooms and which he presently occupies and predicated on long possession and sets of ownership, is hereby set aside by me. Further, the judgment of the lower Court in the substantive claim granting reliefs 1 and 2 in the Respondent’s Amended Statement of Claim is hereby set aside for want of proof.
Then, with respect to issue No. 4 which was anchored on ground No. 4 of the grounds of appeal of the Appellant’s Notice of Appeal, the same will be and is hereby dismissed by this Court.
Consequently, the judgment of the lower Court in the Appellants Counter – Claim that is to say, dismissing the said counter – claim is hereby affirmed by this Court for lack of proof of incidences of customary tenancy between him and the Respondent or his entitlement to the building erected on the said land by the Respondent. Each party, is to bear his own cost. I will make no order as to costs.
JOSEPH TINE TUR, J.C.A.: I have read in advance the judgment delivered by my Lord Theresa Ngolika Orji-Abadua JCA. I however beg to differ in the conclusion arrived at for the land in dispute must have an owner; a child must have a biological father.
The plaintiff alleged that he bought the land in dispute from the defendant in 1966. There was no written agreement but there were witnesses. The purchase price was 70 pounds. He went into possession. There were two thatched houses on the land. The plaintiff pulled them and rebuilt an eight room house which he roofed with zinc, brought light and water and continued to live there until in 1984 when the defendant started committing acts of trespass, seeking to eject him from the land. However at the trial the plaintiff could not produce any eye witness who was Present when he paid the 70 pounds to the defendant no witnessed his being put into possession of the land. The defendant denied selling the land to the plaintiff. The defendant pleaded that he put the plaintiff on the land as a matter of grace when he had problem with his brother and was evicted from home until the plaintiff started the developments on the land. Because of the claims and counter-claims the plaintiff rook out the writ of summons in the High Court of Justice, Kaduna in Kaduna State on 30/7/1991 . On 16/11/1999 leave was granted the plaintiff to amend the Statement of Claim which he did. In the Amended Statement of claim the plaintiff sought the following reliefs against the defendant Mallam Ali Kano:
“THEREOF THE PLAINTIFFS’ claim against the defendant are as follows.’
1. An order of Court Declaration (sic) that plot w.20 Rama Road, now plot 17B Danwaka Road Kawo Kaduna belongs to the plaintiff and not the defendant-
2. An order of perpetual injunction restraining the defendant, its agents, servant and or assigns from further trespassing into the plaintiffs property-
3. An order of Court compelling the defendant to issue the plaintiff with all necessary documents of title for the portion sold to the plaintiff by the defendant in 1966”
The defendant denied liability and Counter-claimed as follows:
“WHEREOF THE DEFENDANT claims from the plaintiff:-
(i) A declaration that the plaintiff having denied the defendant’s over-lordship over the piece of land in dispute for fails. (sic) his right to stay on the said piece of land from the date of his misbehaviour.
(ii) A declaration that whatever, development put or buildings carried out by the plaintiff on the property in dispute, those developments/buildings belong to the Defendant in law.
(iii) An order ejecting the plaintiff from the piece of land Forthwith.
(iv) order that the plaintiff pays the defendant mesne profit at the rate of 100 per month from January 1984 when he (Plaintiff) started denying the defendant’s over lordship over the piece of land in dispute-
(v) Such further order or orders as this Honourable Court may deem fit to make in the circumstances”‘
On the 19/9/1994 the Plaintiff was granted leave and he filed a Reply to the Counter-Claim. The matter proceeded to trial. The parties called evidence. Thereafter their learned Counsel addressed the Court. On 27/10/2003 His Lordship delivered judgment holding at page 77-79 of the printed record as follows:
“From the pleadings of the parties and the Evidence led, it is clear to me that there are two issues to be determined. The first is whether the plaintiff has proved his case. The second is whether the counter-claim has been established.
I hold that the plaintiff has proved that he is the owner of the Property known as No. 178 Rama Road, Kawo, Kaduna which consists of 8 rooms and which he presently occupies. The proof is predicated on long possession and sets of ownership-
See also section 146 of the Evidence Act. The Counter – claim has not been proved. It is dismissed. The prayers 1 & 2 as they appear in the amended statement of claim dated 16/11/1999 are hereby granted. The prayer No. 3 is refused. The Counter – Claim is dismissed”.
Being aggrieved the defendant/counter-claimant filed a Notice of Appeal on 29-10/2001 containing five grounds from which learned counsel to the appellant distilled in the Brief filed on 11/3/2005 the following issues for determination by this Court, to wit:
“ISSUES FOR DETERMINATION
From the Grounds of Appeal, the following issues arise for determination;
Whether a claimant to land having failed to prove his root of title as pleaded through sale can fall back and rely on acts of possession (presumption in section 145 Evidence Act), acts of ownership or on other matters to establish title.
b). Whether Plaintiff’s occupation and possession of portions of the disputed area is conclusive evidence of claim to title to the whole land.
c). Whether facts mutually pleaded (or admitted) by parties need further proof at the existing trial’
d) whether the trial Court was right in dismissing the counter claim “.
The respondent adopted the above issues for determination in the brief filed on his behalf dated 27/11/2006.
ARGUMENT: ISSUE ONE (GROUND 3).
Learned Counsel to the appellant referred to paragraphs, 2 and 3 of the plaintiffs Amended Statement of claim as showing that purchase was the root of title pleaded. But that could not be proved by the plaintiff at the trial. Thus it was an error in law for the learned trial judge to have relied on acts of ownership and lone possession to found in favour of the plaintiff. Learned counsel referred to Fasoro vs Beyieku (1998) 19 NSCC (pt 1) 705 at 710 paragraph 5 – 15 and Balogun & ors vs Akanji & ors (1988) 1 NWLR (pt 70) 301.
Counsel argued that acts of ownership will not confer title on the plaintiff when sale or purchase could not be established. In this case the defendant/counter-claimant had allowed the plaintiff/respondent to live on the land as a matter of grace hence his acts of long possession cannot ripen into title. The learned trial judge also erred to have employed the provisions of Section 116 of the Evidence Act 1990 to found in favour of the plaintiff/respondent. That the proof of a better title supercedes or rebuts the presumption of ownership under Section 146 of the Act supra. Counsel cited Da Costa v Ikomi (1968) 1 All NLR 38; Piaro v Tenalo, Digest of Supreme Court Cases pages 353-354; Ayodele v Olumide (1969) 1 All NLR 233 and Abudu vs Eguakum (2003) 14 NWLR (pt 840) 311.
Counsel contended that though the learned trial judge found that the plaintiff had been on the land “for more than 25 years” (See page 4 of the Appellant’s Brief of Argument), nevertheless purchase having not been proved the Court should have accepted the evidence of the Defendant/counter-claimant that he had allowed the plaintiff to occupy the house as an act of grace but the plaintiff lost possession when he began to carry out unauthorized developments. Learned counsel urged that this issue should be resolved in favour of the appellant/Counter/Claimant.
ISSUE TWO (GROUNDS 1 AND 3)
Learned counsel drew this Court’s attention to the Amended Statement of Claim and evidence on record to show that the plaintiff did not prove exclusive possession to No.178 Dan Waka Road, Kaduna also known as W20 Rama Road, Kawo, Kaduna. The plaintiff merely occupied some rooms in the defendant/counter-claimant’s house wherein he lives. Counsel referred to the oral testimony of the witnesses and then submitted that occupation or possession of a portion of a disputed piece of land cannot be relevant evidence of title to the whole area, citing Shoe Maker vs Oniwe (1958) SC NLR 239. It was therefore wrong for the trial Judge to grant the plaintiff a declaration of title over the whole land. This issue should be resolved in favour of the appellant/defendant/counter-claimant.
ISSUE THREE (GROUND 5)
Learned counsel submitted that the defendant/Counter-claimant/appellant had challenged the acts being done on the land in dispute by the plaintiff/respondent contrary to the findings of the learned trial judge. The acts of connecting water and bringing light to the house were not pleaded and should be expunged as they go to no issue. Counsel cited Njoku vs Ameh (1956 – 1981) Digest of Supreme Court Cases Vol. 2 pages 392 – 394. Reference n as made to paragraph l0 – 16 of the Amended Statement of Claim and contrasted with paragraphs 14, l5 and l6 of the Statement of Defence to show that these acts, relied upon by the plaintiff/respondent in support of ownership were challenged by the Defendant/counter-claimant.
Counsel referred to Section 75 of the Evidence Act 1990; Oduka & Sons vs Kasumu (1967) 5 NSCC 250 at 294 lines 22 and Awote vs Owudunmi, (1987) NSCC Vol.l8, p.591. Counsel urged that this issue should be resolved in favour of the appellant/counter claimant.
ISSUE FOUR (GROUND 4)
Counsel submitted that the counter-claim should not have been dismissed judging from the totality of the evidence on record which showed that title to the land originally vested in the defendant/counter-claimant. That the plaintiff s acts of setting up title adverse to that of the defendant or denial of defendant/counter-claimant’s over lordship was enough for the learned trial judge to have made an order for forfeiture against the plaintiff/respondent in favour of the Defendant/counter-claimant, citing Onotairie & ors vs Onokpaja & Anor (198-1) 15 NSCC 791 at 904. Counsel relied on the principle of quid quid plantutur solo cedit to urge that the developments on the land should vest on the appellant/counter-claimant. Learned counsel asked for judgment in favour of the appellant.
RESPONDENT’S LEARNED COUNSEL’S RESPONSE
The Brief of Argument was adopted on 16/2/2011-
ISSUE ONE (GROUND 3)
Counsel submitted that purchase, equitable doctrine of delay and laches were pleaded in the Statement of claim. Reference was made to paragraphs 2 – 12 and 19 thereof which the defendant. Counsel argued acts of long possession was also pleaded because from 1966 to 1990 the defendant/counter claimant never challenged the plaintiff/respondents possession of the land in dispute.
The period of occupation spanned thirty four years. Counsel referred to the construction of five additional rooms, rebuilding the mud houses and roofing same with zinc without challenge. Reference was made to Owhonda vs Ekpechi (2003) 12 NIJSC l; Adinaka v Nduka (2001) 9 MJSC 137 and Bia niko vs Ogwuile 3 NIJSC 1. The Defendant/counter-claimant was therefore caught by the doctrine of delay, laches, acquiescence and standing by’ having allowed the respondent/plaintiff to expend money on the land by exercising acts of ownership as rightly found by the learned trial judge. Learned counsel contended that it was erroneous for the learned trial judge to have held that purchase was not established because there was no written agreement as prescribed by Section 4(1) and (2) of Edict 1987 Cap 36 Laws of Kaduna State 1991 as the transaction was conducted before the edict came into effect. The transaction was governed by Section 3 of the Land Tenure Law Cap 59 Law of Northern Nigeria 1963 applicable when the transaction was concluded. Counsel contended that all the authorities cited on issue one by the learned counsel to the appellant were in applicable. They do not preclude the respondent/plaintiff from basing his claims on other roots of title. Counsel referred to the evidence of PW1- Pw4 as proving oral purchase of the land citing Section 68 (2) of Edict No.20 of 1990 as an exception that a contract of Sale must be evidenced in writing.
ISSUE TWO (GROUNDS 1 AND 2)
Learned counsel referred to paragraph2 and I of the statement of claim and paragraph 2 of the Statement of Defence to show that the land claimed by the parties was not the same. While the plaintiff laid claim to plot No. W.20B Rama Road, now plot 17B Danwaka Road, Kawo Kaduna, the defendant/counter claimant gave evidence that the land in dispute was No. 20B Rama Road. also known as W20 Rama Street, Kaduna. Counsel referred to paragraph 12 and 17 of the plaintiff s statement of claim in support of this submission. It was contended that renovation was carried out in 1984 as pleaded in paragraph 10 of the statement of claim supported by evidence in Court. That panition of the land had been proved. The respondent was therefore perfect in demanding that documents of title should be issued to him by the appellant in respect to the portion sold to him.
Relief’s one and two were therefore rightly granted to the respondent as the property had been properly demarcated and partitioned by a fence. Long possession was duly established b), the plaintiff/respondent. Learned counsel asked that the appeal should be dismissed.
ISSUE THREE (GROUND 5)
Learned counsel to the respondent drew the Court’s attention to the pleaded and oral evidence which showed that the two rooms and parlour of the mud building were demolished in 1968 and replaced with an 8 room building, roofed with zinc thereby removing the thatched roof; same was partitioned without challenge from the defendant/counter-claimant in any Court or tribunal. It was in 1984 that there was a challenge to the plaintiffs’ occupation of the land. The dispute was resolved by the District Head before whom the defendant/’counter-claimant admitted selling the land to the plaintiff/respondent. But the oral testimony of the District Head was excluded when the record of appeal was compiled in order to conceal this fact thereby rendering the record of appeal incomplete. That the renovation was completed and water and electricity connected to the respondent’s house since 1984 yet the appellant did not institute any action in a Court- For the appellant to have remained silent for six years from 1984 to 1990 before heading to the District Court and Rent Tribunal clearly shows he was contented and satisfied with the settlement by the District Head Mai-Ungwa Rabiu or he accepted the acts of the plaintiff in renovating his portion of the land.
Counsel further argued that the act of omitting the testimonies of two vital witnesses that testified before Honourable Justice A.D Yahaya who was then handling the suit before same was transferred to be heard denovo by another judge goes to show that if their testimonies were produced it would not have been favourable to the appellant, citing Section 148(d) of the Evidence Act 1990. That the defendant/appellant never produced evidence to prove paragraphs 8, 11. 14, and l5 of the Statement of Defence and this should be deemed abandoned citing, UBN v Emoco (2002) I MJSC 126; A.G.F v A.G Abia State (2002) 6 NIJSC and Olarewaju vs AfriBank (2001) 6 MJSC 68. Neither do these paragraphs amount to admissions of the averments in the plaintiff’s pleadings in respect of paragraphs 10 to 16 for the1, are at best party admitted or denied. Counsel contended that the cases cited by’ the learned counsel to the appellant namely, Oduka and Sons vs Kasumu (1967) 5 NSCC 290 at 291 lines 22; Sanusi Alade vs Yesufu Adebiyi and Awote v. Owodunni (1987) 18 NSCC 591 did not apply as no previous judgments were pleaded nor tendered at the trial.
ISSUE 4 (GROUND 4)
Counsel submitted that the evidence of Dw2 supported the case of the Plaintiff/respondent. That the authorities cited by the appellant did not apply namely Onotaire & ors vs Onokposa & Anor (1984) 15 NSCC 791 at 904 and orianwo v. okene (2002)14 NWLR (pt.786) 156 at 193 paragraphs “D” – “F”. Counsel argued that the doctrine of quid quid plantatur solo cedit had no application to the facts of this case. The Court was urged to dismiss the appeal.
REPLY BRIEF: ISSUE ONE
Learned counsel to the appellant filed a Reply Brief on 14/10/2010 which was adopted on16/2/2011 where in it was argued that long possession can only be used as a defence; that the plaintiff/respondent could not found an action on long possession, citing olayioye vs oso (1969) All NLR 271 at 275 and Mogaji & ors vs cadbury Nig. Ltd & ors (1985) 7 SC 59 at 159.
Counsel further submitted that there was no cross appeal challenging the findings of the learned trial judge that the respondent/plaintiff had not proved sale hence the respondent’s counsel cannot be heard to argue the issues citing, oloriegbe vs omotosho (1993) I NWLR (pt 270) 386 and Nigeria Superintendence vs NPA (1989) 3 NSCC 5 19 at 524 – 525. The submissions on issue one should be disregarded, submitted learned Counsel to the appellant.
ISSUE TWO
Appellant’s learned Counsel urged the Court to discountenance the Respondents’ learned counsel’s submission on issue two as the identity of the plot in dispute was never made an issue at the trial Court, citing Awuze & ors v. Nka pariama & ors (2002) I NWLR (pt747) 1 at
ISSUE THREE
Learned Counsel contended that at no time did the Defendant agree selling land to the plaintiff. The defendant/counter-claimant’s case is that he gave two rooms to the Respondent/plaintiff to live in as a matter of grace. That the purported evidence of the District Head did not form part of the record of appeal hence cannot be regarded as an admission but a figment of the respondent’s imagination; neither did the respondent properly challenge the records of appeal on grounds of incompleteness. Reference was made to Edogin v. Agu (1992) 3 NWLR (pt 229) 350 and Yakubu vs chief of Naval Staff (2001) I NWLR (pt 853) 94 at 113 – ll4 paragraph “H” – “G”. It was further argued that Section 149(d) of the Evidence Act 1990 had no application to the facts of this case. Learned counsel urged that this appeal should be allowed.
I shall begin to consider this appeal by drawing attention to the fact that it is not within the province of the Respondent’s Counsel to disparage the judgment of the learned trial judge delivered in favour of his client but to defend it on appeal. See Adefulu vs Oyesile (1989) 12 SCNJ 44 at 791; Obi vs INEC (2007) 11 NWLR (Pt.1016) 565 at 673-674 and Olanuyan vs Adenivi (2007) 3 NWLR (Pt.1020) 1 at 15. The respondent is not to destroy but to defend the judgment. Secondly, there is no challenge to some findings of the learned trial judge by way of cross appeal or by a Respondent’s Notice praying that the judgment should be affirmed or varied on other grounds. See Order 9 rule l-7 of the Court of Appeal Rules 2007.
B-v the provisions of order 8 rule 6 of the Rules supra the respondent could have compiled additional records within 15 days upon service on him of the records compiled by the Registrar of the lower Court if he was of the opinion that documents, exhibits and so forth relevant to the hearing of his appeal had been omitted in the compiled record of appeal’ If the 15 days had expired an application praying for extension of time to compile additional record of appeal should have been brought to this court and upon a hearing. if good reasons were shown, the application would have been granted. Having failed to do these, this Court will ignore certain complaints wherever raised in the respondent’s Brief of Argument that seems to disparage the judgment of the learned trial Judge.
I shall further draw attention to the remedies sought by the Plaintiff/respondent in the lower Court in the Amended Statement of Claim against the defendant/counter-claimant. They show that the plaintiff/respondent sought five remedies in the lower Court namely:
(i). Declaration of title to the plot in dispute (ii)’ perpetual injunction restraining the defendant. his agents, servants and or assigns from (iii), further trespassing into the plaintiffs land and (iv) that the court should compel the defendant/counter-claimant to issue documents of title to the plaintiff/respondent which relief seems to be founded on specific performance. (v) The plaintiff/respondent was laying claim to only “the portion” sold to him “by the defendant in 1966″. What is that portion? We shall examine the Amended Statement of Claim particularly paragraphs 3-9 which reads as follows:
(1) The Plaintiff in this suit is a business man and lives at Plot No.20 Ranta Road, Kaduna within the jurisdiction of this Honourable Court.
(2) The defendant is a gardener by occupation and resides at Kawo Kaduna, within the jurisdiction of his Honourable Court.
(3) The Plaintiff aver that sometimes in 1966, the defendant sold to the Plaintiff u parcel of land partly developed with 2 room build of mud-sand.
(4) That at the time of the sale of the land and 2 rooms with watch roof to the plaintiff by the defendant’ the transaction was made in the presence of the following persons, as witnesses to the sale transaction namely:
(i) Mamman Hakimi
(ii) Mallam Bala Lintan
(iii) Hakimi Kawo
(iv) Sarkin Kawo
(v) Mai Ungwa – Damake
(vi) Mai Ungwa Rabiu
(vii) Lintan Mallam Dogara and
(vii) Kaki Dankoli
(5) The Plaintiff aver that before he purchased the said plot of land he had never known the defendant in the suit personally and that the offer to sale the said land was brought to his notice by one Mamman Hakimi who was so authorized by the defendant to secure o prospective buyer.
(6) The Plaintiff aver that the said parcel of land containing 2 (Two) Room only with thatch roof and the remaining undeveloped portion was sold to him personally by the defendant in the presence of the witnesses referred to in paragraph 4 of this statement of claim for the sum of E70 (Seventy Pounds) in 1966.
(7) That after the said sale transaction, the plaintiff commenced development in on the said land and build additional rooms totaling 8 (eight) room of concrete block with zinc roofing sheets.
(8) The Plaintiff avers that since he purchased the defendant land in 1966 and moved into same in 1968 after carrying out all necessary developments on the property, he has been in, peaceful and quite possession and occupation of the said premises to date.
(9) The plaintiff further state that when he purchased the said land, the entire contract transaction was curried out verbally-”
There is no disputing the fact that the defendant/counter-claimant knows the portion of the land in contest for this is clearly set out in paragraphs 1-10 of the Statement of Defence to wit:
‘STATEMENT OF DEFENCE
(1) The Defendant admits paragraph I of the statement of claim.
2) In reply to paragraph 2 of the statement of claim, the Defendant avers that he is a gardener and resides at N20B Rama Road, Kaduna, together with the Plaintiff in the premises now in dispute. The property is also known as “W20 Rama street”.
(3) In answer b paragraphs 3, 4 and 5 of the Statement of Claim which are denied, the Defendant avers that he had never in his life sold any parcel of land to the plaintiff. All that happened was that there was a time when the plaintiff approached the Defendant that the wanted the defendant to sell to him the portion of the Defendant house now in dispute which the Defendant allowed the plaintiff and his (Plaintiff) family who were driven out of the plaintiff s brother’s house by his said (Plaintiffs) brother to stay free of rent but the transaction broke down and the plaintiff has never paid any purchase prize to the Defendant.
(4) The Defendant shall further contend that even if there were such a transaction, which is honestly denied, it is illegal, unenforceable, null and void as being contrary to the;
a) Statue of Fraud, Section 4 and
b) land Tenure law for want of consent to assign.
(5) In further reply to paragraph 4 of the Statement of Claim, he avers that the Plaintiff had, due to his recently acquired wealth, hired the purported witnesses named in the said paragraph to come and perjure to this Honourable Court.
6) In further reply to paragraph 5 of the statement of claim, which is denied, the Defendant avers that he had never contracted any person including a Mamman Hakimi, lo secure a prospective buyer in respect of any of his (Defendant’s) landed property.
(7) The Defendant denied paragraph 6 of the statement of claim and avers that he is allowed the Plaintiff who was driven out of his -(plaintiff’s) brother’s house with the members of his (Plaintiff’s) family to stay free of rent in his (defendant’s) two (2) rooms because of the sympathy he had for the Plaintiff and his (plaintiff’s) family as at that time. The Defendant was not paid 70 (seventy Pounds) or even a penny for the said property.
(8) When the Plaintiff suo motu started to develop the property without the Defendants consent, the defendant promptly at all material times called the plaintiff’s to the elders time without number, to warn him and when he continued with the Development, the Defendant instituted actions against him at various Courts of law/tribunals. The Certified copies of the said court processes shall be relied upon at the trial of this suit.
(9) The Defendant says, in answer to paragraph 8 of the statement of claim, that the plaintiff had been in a peaceful possession as a non-rent-paying tenant until sometime in 1984 when he started denying the Defendant (Landlord’s title to the rooms let to him by the Defendant.
(10) In answer to paragraph 9 of the statement of claim, which is denied, the Defendant avers that he at no time in his life, verbally agreed to sell nor did he any parcel of land to the Plaintiff. There Defendant avers that even if there were such a verbal transaction, which is honestly denied, such a verbal transaction affecting land is illegal, unenforceable, null and void ab initio.”
Thus, the plaintiff/Respondent and the defendant/counter-claimant live together in the premises now in dispute. The “land in dispute” simply means the land being claimed by the plaintiff/Respondent and counterclaimed by the Defendant/Appellant. See Akintola vs Solano (1986) 2 NWLR (Pt.24) 598 at 622. Therefore, the parties know the portion of land in contest. The identity of the portion of land in dispute is not an issue in the pleadings. See Fatuade ys onwoanam (1990) 3 SCNJ 200- Ezeudu vs obiagwu (1986) 2 NWLR (Pt.21) 201 at 210. where the parties know the area of or portion of land in dispute there is no need for a plan. See Ibuluya vs Dikibo (1976) 6 SC 97 at 107; Sokpui vs Agbozo 13 WACA 241 and Atolagbe vs Shorun (1985) -! SC 250 at 257.
The plaintiff/respondent admitted that “the portion” sold to him in 1966 belonged to the defendant/counter-claimant.. That is to say the defendant/counter-claimant was the original owner of the land prior to 1966 before purportedly selling “the portion” in dispute to the plaintiff/respondent who went into possession in 1968 and commenced acts of ownership by pulling down the mud house and erecting an 8 room building. and roofing same with zinc and so forth. where a party admits that title to certain lands which he claims originally vested in a riyal party/counter-claimant, as in this case’ the onus is on the first party to prove how such riyal party, in this case the defendant/counterclaimant had divested his title to “the portion” in dispute in his favour. See Omoni vs Biriyah (1976) 6 SC 19 at 54. In Adenle vs oyegbade (1967) NILR 136 it was all agreed that the land in dispute belonged to the Laro family. It was also a common ground that the defendant had lived on the land since 1934 haring continued the possession after the death of his father.
The plaintiff claimed declaration of title to the land. The learned trial Judge held that the law presumed that a man in possession of land is the owner until the contrary was proved. In this case the defendant and his forebears had been in occupation of the land since 1934 hence the onus to be discharged by the plaintiff was greater because of long possession. Judgment favoured the defendant based on long possession. In allowing the appeal, the Supreme Court held. per Lewis JSC at page 138 that:
“Whilst this is a correct statement of the law in general it must, however be modified where the dispute involved what was accepted by’ both sides as originally family land. Then when a person claims to be exclusively entitled to family property the onus is on hint to prove it… The learned trial Judge, therefore, in our view wrongly put the onus on the plaintiff rather than, as he should, on the defendant to establish his claim to an exclusive grant. ”
The appeal was allowed as the plaintiff was entitled to judgment notwithstanding the long possession established by the defendant through his late father since 193.1. In Agboola vs Abimbola (1969) 1 AII NLR287.
long possession was also established on the part of the rival claimant to the land originally held by the Oloto family. The Registrar of Titles erroneously thought that this was sufficient to confer title on the party in long possession.
On appeal the Supreme Court said no, per Coker Acting CJN at pages 290- 291 as follows:
“To start with, if it is common ground, as indeed it was, that the land originally, belonged to the Oloto Chieftaincy family then in order to establish title to the land a party must trace his title to the family. See Thomas vs Preston Holder (1946) 12 WACA At page 292-293 his Lordship continued:
“Again the Registrar of Titles took the view that the respondent has established her title because of the long possession of the land by her and her predecessors-in-title. It is correct that there was evidence which if accepted, as indeed it was accepted, clearly established that the respondent, whether by herself or her predecessors-in-title, had been in possession of this land for a considerable length of time. The Registrar of Titles however erred in regarding the long possession of the respondent as conferring title to the land on her. She had agreed that the original owners of the land were the Oloto Chieftaincy family and she must prove in a battle of titles that family had transferred to her the quantum of interest in respect of which she sought to be registered as the proprietress. In Ds Costa vs Ikomi, SC.733/66 of the 20th December, 1968, we observed dealing with the issue of long possession, vis a vis a claim for title, as follows:
“Not only was this not her case as presented to the High Court on her pleadings, but, even if it had been it would hate no merit when seeking to rely on long possession to establish effectively a right to a declaration of title against another person who proved a good title from the original owner. Possession may under Section 145 of the Evidence Act give a presumption of ownership, but it does not do more and cannot stand when another proves a good title.”
The proceedings before the Registrar were not an action for a declaration of title and even f they were, long possession will only avail as a weapon of defence against un ostensibly clear title but will not by itself constitute a basis of title. See also Ayodele v Olumide SC 260/67 of 23rd May, 1969. The Registrar took the view that the respondent had by proving her long possession of the land established an absolute title from the Oloto Chieftaincy family. We have no doubt that this is an erroneous view of the legal position and this ground of disqualification of the appellant’ title must also fail.”
Yes. The plaintiff respondent pleaded that he had purchased the portion of the land in dispute from the defendant/counter-claimant’ This is denied by the defendant/counter-claimant. The onus of proving purchase was cast upon the plaintiff/respondent. The plaintiff/respondent was unable’ from the evidence adduced at the trial, to prove purchase from the defendant as rightly held by the learned trial Judge. In Murani Ajadi vs Madam Dorcas olarewaju (1969) I All NLR 382 the plaintiff/Respondent testified that she had sold the portions of the land in dispute to some people which required proof. The Supreme court held at page 387-388 per Fatayi -william J’S’C.
(as he then was) that:
“…As for the testimony of the plaintiff/respondent that she had sold portions of the land, it is our view, even if the portions allegedly, sold had been part of the land in dispute (which that are not), that that evidence is not sufficient to prove a sale of land, whether under customary law or not. Much more is necessary. Thus, in order to transfer on absolute title to land under native law and custom, it is necessary that such a sale should be concluded in the presence of witnesses who saw the actual “handing over” of the property; to transfer the legal title under “English law” a deed of conveyance would need to be executed. (See Cole v Folami 1. FSC 66 and Erinosho v Tunji Owokoniran (1965) NMLR 479). Again, as had been pointed out in Alede v Aborislrsde (1960) 5 FSC 167 at p. 169.
“It is a well established principle of native law and custom that Family land can now provided the consent of the proper persons are obtained, be alienated to strangers and such alienation if carried out in the proper way operates to confer upon the alience the whole of the interest, in the portion of land concerned, of the family to whom it originally belonged. In other words, the alience gets what may be termed” an absolute title to the land”
As there is no evidence that the admitted Sale of portions of the land by the plaintiff/respondent was “carried out in the proper way” either by the actual handing over of the property in the presence of witnesses or by using non-customary formalities such as a deed of conveyance the sale had not been proved and the learned Acting Chief Justice was right to have discountenanced it. That being the case, it seems lo us that the area in dispute is easily identifiable front the plan (Exh.B) “clear and definite”
The plaintiff/respondent by his pleadings and testimony has acknowledged that original title to the disputed portion of land vestes in the defendant/appellant. In Oke-Bola & ors vs Alhaji A.J. Molake (1975) 5 UILR (Pt. 2) 20-t the Supreme Court held at page 205 per Sowemimo JSC that:
“… Along with this settled principle is that which affects a rival Party who has admitted the ownership by the other party of a property claimed; effect should be given to such admission not only in regard to the admitted fact but also its legal consequences; us in this case, the burden of proof shifts from one Party to the other…”
From the pleadings and evidence adduced at the trial it is difficult to appreciate how the learned trial Judge declared title in favour of the plaintiff/Respondent when the basis upon which he claimed to have been put into possession of the portion of land in dispute, namely, through purchase, was nor proved. For the above reasons the plaintiff/respondent was not entitled to a declaration of title.
Can the plaintiff/respondent be entitled to relief against the defendant/appellant from “further trespassing into plaintiff premises” I do not think so. First the Respondent failed to prove how he came unto the portion of land in dispute. Secondly, that portion of land in dispute has been proved not to belong to him. He is a mere squatter or trespasser. In Harper vs Charlesworth 107 ER 71 Bayley J., held at page 1178 and at page 1179 that:
“… Generally speaking, actual possession is sufficient to entitle a party to maintain trespass against a wrongdoer-.. Apply that doctrine to this case; the plaintiff had no title to enable him to maintain ejectment, because he had not a legal conveyance from the crown; but still… he would be entitled, by reason of his actual possession, to maintain trespass against a wrongdoer…”
Holroyd J.. added at page 1181 that:
“… The law how now is, that an entry on the possession of another cannot be justified, unless it be made by the authority of a person in whom the right of soil is vested… ”
Littledale J.. also held at page 1181 thus:
“…Generally speaking, trespass may be maintained by a person in the actual possession of land against a wrong doer, even where that possession may be wrongful as against a third, person. If a tenant hold over after the expiration of his lease, or incur a forfeiture by committing waste or otherwise, the landlord would have a right to enter, and as against him the tenant would have no right of possession; yet f the landlord permitted him to continue in the actual possession, he might
maintain trespass against any person entering upon him, not having a better title than himself A party, therefore, may be in such a situation, that he may be turned out himself by a person having s better title, but not by a stranger”.
Again in Delaney v. T.P Smith Ltd (1946) 2 All E.R 23 Tucker L.J, held at page 24 where the plaintiff founded his claim on a tenancy agreement which he pleaded as follows:
“…It is no doubt true that a plaintiff in an action of trespass to land need only in the first instance allege possession. This is sufficient to support his action against a wrongdoer, but it is not sufficient as against the lawful owner, and in an action against the freeholder the plaintiff must at some state of the pleadings set up a title derived from the defendant”.
The plaintiff/Respondent testified as PW1 on l5-10-1997 and was cross examined on 09-03-1998. Under cross-examination PW1 gave evidence as follows:
“PW1: …I bought the house front the defendant because I knew he has a good title…”
See page 39 lines 22-23 of the printed records.
The result is that the appellant/counter-claimant cannot be regarded in law and in fact as a wrongdoer against whom the plaintiff s action in trespass can succeed.
The Respondent has no cause of action in trespass since the appellant is admitted to be the rightful owner of the portion of land in dispute. A trespasser cannot acquire the title of the true owner of the land merely by his acts of possession or being a squatter. See Ojomo vs Ajao (1983) 9 SC22 at 30 and Onwujuba vs Obienu (1991) 1 SCNJ 40. Acts of trespass should not be elevated to acts of lawful or legal possession. See Agboyeji v. Momoh (1994) 4 NWLR (pt 3a) 646; and Chukwueke vs Okoronkwo (1999) 1 SCNJ 44 at 52. The original entry may be lawful but once the person in possession starts abusing his position for example, challenging the title of the owner, the original entry becomes a trespass. See Ajibade vs Theodora Pedro (1992) 6 SCNJ (pt 1) 44 at 57. Proof of ownership is prima facie proof of possession. See Badejo vs Sawe (1984) 6 SC 350 at 353.
The admission by the plaintiff/Respondent that the appellant was the original owner of the land in dispute is not founded on the pleadings but oral evidence adduced at the trial. The admission came from personal knowledge of the plaintiff/Respondent. What is admitted needs no further proof. See Section 75 of the Evidence Act, 1990. In Bulley vs Bulley (1873-4) 9 Ch. App.739 George Mellish L.J., held at page 751 that:
“…If a man admits that he said something or that he did something which is within his own knowledge, that is, of course, every strong evidence against him, unless he shows why he said so, if it vas not true; but if a person merely admits what happened 120 years ago, he cannot possibly know it of his own knowledge; and if the whole evidence on which he made his admission was the inference which his Solicitor drew from the state of the title, it is for us to judge, having all the facts before us, and all the materials upon which the Solicitor made that admission, what the worth of that admission is …”
In my humble view once admission is based on personal knowledge of a party, extracted in evidence, not pleadings, that is sufficient for the Court to act upon it taking into consideration facts in recent years as established by evidence. See Kojo II vs Bonsie & Anor (1957) 1 NLR 1223 at 1226.
In Ajose v. Agusto & Ors (1968) 1 All NLR 9 the Supreme Court gave indication as to who is in a position to eject a person in occupation of land in dispute. Bairamian JSC held at page 14 to wit:
“We note that the party must have o good title to eject and demand to exercise that right.”
In my humble opinion the defendant/counter-claimant has a good title to eject the plaintiff/Respondent from the portion of land in dispute It has been held in a plethora of decisions few of which I may cite in addition to those referred to by learned Counsel to the appellant/counter-claimant that denial of the title of the overlord is a ground for forfeiture in every system of jurisprudence though in practice, it is rarely used, on equitable principles.
See Apala vs Ogbeki (1956) WRNLR 77 at 73; Ometa vs Chief Numa (1929) 9 NLR -16 and Ogunola vs Eiyekola (1990) 7 SCNJ 128.1do not however see any equity in favour of the plaintiff/Respondent taking into consideration all the circumstances of this case. When the Plaintiff/Respondent started putting on permanent structures, the defendant/counter-claimant started resisting. The plaintiff/Respondent had the audacity to sue his landlord – the defendant/counter-claimant – showing ingratitude to his hospitality and assistance in time of dire need. In NEPA v. Amusa & Anor (1976) I FWLR 242 Fatayi-Williams JSC (as he then was) held at page 249 concerning the Latin Maxim quicquid plantatur solo, solo cedit as follows:
“…With respect, we think that the maxim quicquid plantatur solo, solo cedit is still good law. It is a general rule of great antiquity and it means that whatever is affixed to the soil becomes, in contemplation of law, a part of it, and is subjected to the same rights of propet1y as the soil itself. Thus, if a man builds on his own land with the materials of another, the owner of the soil becomes in law, the owner also of the building-
Similarly, if trees were planted or seeds sown in the land of another, the owner of the soil became the owner also of the trees, plants, of the seeds as soon as they had taken root. (see Broom’s Legal Maxims 9th Edition pages 264-265). Of course, this general rule of low is subject to any contract entered into by the parties and also to the doctrine and rules of equity- Apart from these exceptions which are not relevant to the case in hand, we are not aware of any general rule of law, and the learned trial Judge did not refer to any, which says that the reverse. except as defined in specified statutes, is possible and that a building could therefore, for on purposes, include land on which it is built… ”
The plaintiff/Respondent has not shown any contractual agreement that can take his case out of the Latin Maxim quicqiud plantatur solo, solo cedit-.
Neither can he demolish the house built on the portion of land in dispute except to remove what is called “tenant’s fixtures.” See Ezeani & Ors vs Njidike. In Okafor vs Idigo (1965) 1 SCNLR 481 the Supreme Court summarized the position of the law as follows:
“…(7). The dismissal of the plaintiff’s claim in an action for declaration of title does not mean that the land belongs to the defendant (Nwonkwo Udegbe vs Anachuma Nwokafor (1963) 1 All NLR 417; Privy Council Judgments by Olisa Chukwura, p.994; Eboha vs Anakwenze (1967) NMLR 140). Unless there is a finding on the evidence that the defendant has established his ownership of the land, Duedu v. Yiboe (1961) 1 WLR 1040; Amos Ogbesusi Aro vs Salami Fabolude (1983) 25 SC 75.”
There is ample evidence on record that the defendant/counter-claimant has established his title over the portion of land in dispute. I allow the appeal of the appellant/defendant and grant him reliefs (i)-(iii) in the counter-claim.
Relief (iv) is not proved and is hereby dismissed. I dismiss the claims of the plaintiff/Respondent. The Respondent/plaintiff shall pay to the appellant/counter-claimant the cost of N20, 000.00.
OBANDE OGBUINYA, J.C.A.: I was privileged to read, in advance, the leading judgment delivered by my learned brother, T.N. Orji-Abadua, JCA, and I agree with her reasons and conclusions.
By way of emphasis, the plaintiff/respondent’s root of title, from his pleading, was purchase of the disputed property from the defendant/appellant. He could not prove that radical title before the lower court for paucity of evidence. On this score, no acts of possession could be ascribed to him in law. In the case of DABO v. ABDULLAHI (2005) 7 NWLR (Pt. 923) 181, at 207, Onu, JSC, stated:-
“… The law is equally, settled that where the radical title pleaded is not proved, it is not permissible to support a non-existent root of title with acts of possession. It is not permitted to substitute a root of title that has failed, with acts of possession which could have derived from that root. ….”
See, also, ODUNUKWE v. OFOMATA (2010) 18 NWLR (Pt. 1225) 404.
For this reason, and other fuller reasons adduced by my learned brother in the leading judgment, I too allow the appellant’s appeal in part. I abide by the orders made in the leading judgment.
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Appearances
S. O. Omoloba, Esq;For Appellant
AND
A. O. Mohammed, Esq;For Respondent
