MARANATHA CONSULTANTS LIMITED & ANOR v. MRS. JOY YETUNDE DIRISU
(2019)LCN/13486(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2019
CA/IB/151/2013
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
1. MARANATHA CONSULTANTS LIMITED
2. LAKE LAND AUTO MART Appellant(s)
AND
MRS. JOY YETUNDE DIRISU
(Substituted by Order of Court dated 26th day of September, 2018) Respondent(s)
RATIO
DUTY OF A CLAIMANT TO ESTABLISH WITH CLARIFY THE IDENTITY OF THE LAND HE CLAIMS AND THE EXACT LOCATION
The law is settled that where a Claimant seeks a declaration of title to land, he has a bounden duty to establish with clarity the identity of the land he claims and the exact location. A declaration of title will not be granted where the land is not properly defined. This is the foremost and fundamental duty on a Claimant in a land dispute and good law as settled in a plethora of authorities. See EPI VS. AIGBEDION (1972) 10 SC 53; AKEREDOLU VS. AKINREMI (1989) 3 NWLR (PT. 108) 164); DABUP VS. KOLO (1993) 9 NWLR (PT. 317) 254; EZEAKABEKWE VS. EMENIKE (1998) 11 NWLR (PT. 575) 529; ILONA VS. IDAKWO (2003) 11 NWLR (PT. 830) 53; OGEDENGBE VS.BALOGUN (2007) 3 SC (PT. II) 529 and ? OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 851)1.
The burden on a claimant to prove the identity of the land in dispute will however not arise where the parties have not joined issues on the identity of the land on the face of the pleadings. In other words where on the face of the pleadings, it is evident that parties know the land in dispute, it will be deemed there is no dispute on the identity. See OTANMA VS. YOUDUBAGHA (2006) 2 NWLR (PT. 964) 337; AREMU VS. ADETORO (2007) 16 NWLR (PT. 1060) 244; and GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282. PER OJO, J.C.A.
WHETHER OR NOT WHERE BOTH PARTIES KNOW THE DISPUTED LAND, THE NEED TO PROVE THE IDENTITY OF THE LAND WILL NOT BE IN ISSUE
The law is that where both parties know the disputed land, the need to prove the identity of the land will not be in issue. More so, the instant Respondent has given adequate description of the land. See ADEDEJI VS. OLOSO (2007) 5 NWLR (PT. 1026) 133; ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360; NWANKWO VS. OFOTAMA (2009) 11 NWLR (PT. 1153) 496 AND DAKOLO VS. REWANE-DAKOLO (2011) 16 NWLR (PT. 1272) 22. In the case of EBOADE VS. ATOMESIN (1997) 5 NWLR (PT. 506) 490, Belgore JSC held as follows:
?The unwary judge could easily be swayed by deliberate change of the name of the land and or manipulation of the plan to confuse. It is now an unfortunate common practice in litigations on land especially in pleadings. But with care for detail; a trial judge will not allow a litigant to kill a case by giving the land in litigation a wrong, will I say a bad name.” PER OJO, J.C.A.
WHETHER OR NOT THE SUBMISSION OF A COUNSEL MUST BE BASED ON THE ISSUES JOINED BETWEEN THE PARTES AND THE EVIDENCE LED THEREON
The law as settled in a plethora of judicial authorities is that no matter how brilliant or breath taking submission of counsel may be, once it is not based on the issues joined between the parties and the evidence led thereon, it is irrelevant, inconsequential and goes to no issue and should be discountenanced. See UNION BANK OF NIGERIA PLC. & ANOR. VS. AYODARE & SONS (NIG.) LTD (2007) 13 NWLR (PT. 1052) 567; ISHOLA VS. AJIBOYE (1988) 1 NWLR (PT. 532) PG. 4; CHUKWUJEKWU VS. OLALERE (1992) 2 NWLR (PT. 211) 86 AND FBN PLC. VS. AKPARABONG COMMUNITY BANK (2006) 1 NWLR (PT. 962) 438. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court in Suit No: I/657/2004 between PROPHET (PRINCE) YOMI OLOTO as Claimant and (1) MARANATHA CONSULTANTS LIMITED (2) LAKE LAND AUTO MART as Defendants delivered on the 10th day of February, 2012.
By an Amended Writ of Summons and Amended Statement of Claim filed on the 22nd of May, 2006, the Respondent as Claimant claimed against the Appellants as Defendants jointly and severally as follows:
(i) Declaration that the Plaintiff is entitled to a Statutory Right of Occupancy over the piece or parcel of land being occupied by the Defendants situate, lying and being occupied by the Defendants situate, lying and being at Idi-Orogbo Area, Ibadan which forms part of the land comprised in Plan No. OG/138/63 dated 12th June, 1963 and drawn by Akin Ogunbiyi, a Licensed Surveyor.
(ii) An Order directing the Defendants to render account and deliver to the Plaintiff all moneys collected and paid as rents by the 2nd Defendant to the 1st Defendant.
(iii) Perpetual injunction restraining the Defendants
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from further disturbing the ownership of the Plaintiff over the said parcel of land.
(iv) An order of possession of the said land presently being occupied by the Defendants.
(v) The sum of N4.5 Million being special, exemplary and/or aggravated damages and general damages for damages suffered by the Plaintiff as a result of the unreasonable acts of the Defendants resulting into the institution of this case.
(vi) The sum of N5,000.00 per appearance until judgment being the Solicitors? transport allowance.?
Pleadings were exchanged between the parties and the matter proceeded to hearing.
?The Respondent as Claimants claim ownership of a piece of land which his vender (Mrs. Kofoworola Abeni Pratt) bought from one Alhaji E. A. Adeleke and Chief Saka Owoade by virtue of a land agreement dated 25th April, 1963. That the whole area where the land is situate was formally called Idi Orogbo Area, Oke Ado Ibadan but now known as Ring Road, Ibadan. He claimed that the parcel of land in question which is comprised in Plan No: OG/138/63 dated 12th June, 1963 originally belonged to the Olukosi family of Ibadan and is bounded on
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one side by Ajengbe Stream, on the second side by Akobale layout, on the 3rd side by Access Road and on the fourth side by Elekunkun Stream. He further claimed that by virtue of a deed of conveyance dated the 23rd day of May, 1959 and registered as No:21/21/312 at the Land Registry Office, Ibadan the Olukosi family conveyed the land to Messrs Saka Owoade, Emiola Amusa Adeleke and one Samuel Adeyemi Laniyoun who later released his own part of the land to Saka Owoade and Emiola Amusa Adeleke for valuable consideration. His claim is that Messrs Saka Owoade and Emiola Amusa Adeleke conveyed the disputed land to Mrs. Kofoworola Abeni Pratt who conveyed same to him in 1975 vide a land agreement dated 15th May, 1975.
?
The Appellant placed a different set of facts before the trial Court. They denied the facts presented by the Plaintiff and emphasized that the land in their possession, which is situate, lying and being along South West Ring Road, Ibadan covering an area of 967.288 square meters (0.96 hectare) does not form part of the land comprised in the Respondent?s Plan No: OG/138/63 dated 12th June 1963. They claim the 1st Appellant?s predecessor
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in title (Mr. Lawrence Famose) derived his interest in the disputed land by purchase from one Mr. M. Ola Ibrahim who derived his title under and by virtue of a Statutory Right of Occupancy dated the 15th of November 1985 and registered as No. 49 at page 49 in volume 2637 of the Lands Registry, Ibadan.
They denied the land was ever called Idi-Orogbo Area, Oke-Ado, Ibadan. They also denied the land ever resided in the Olukosi Family who they said never exercised acts of possession on the land.
At the end of the trial, the trial Judge granted the claim of the Respondent in part. He granted reliefs (i) (ii) and (iv) of the Respondent?s Claim and further awarded general damages in the sum of N100,000 as well as cost in the sum of N20,000.00 against the Appellant in favour of the Respondent.
The lower Court in its judgment at pages 152 ? 153 of the Record held as follows:
“Though the Defendants made strenuous efforts to establish that the Claimant became aware of their presence on the disputed land much earlier, the pleadings of the Claimant in the Writ and the Statement of Claim suffice in showing that the cause of action
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arose in year 2001 and the suit filed on 31st August, 2004 thus falling within the statutory limitation period envisaged by Limitation Law Cap 76, the Laws of Oyo State 2000, i.e. within the 10 years limitation period.?
The Court held at page 154 as follows:
?I am convinced beyond doubt that the identity of the land in dispute is not ambiguous at all as being the same land in respect of which Exhibit ?T? was obtained and area described as Lake Land Auto Mart in Exhibit K, the omission to include and depict a stream in Exhibit T notwithstanding.?
The Court at page 156 of the Record held thus:
?I am convinced that the traditional history of the Claimant is clearly more detailed and probable than Exhibit ?T? tendered by the Defendants. The Claimant traced his root of title through Mrs Kofoworola Abeni Pratt who bought a parcel of land including the land in dispute from Saka Owoade and Emiola Amusa Adeleke in 1961 vide Exhibit ?E? which is a Deed of Conveyance registered as No. 3 at page 3 in volume 497 in the Register of Deed, Land Registry, Ibadan.?
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The Court held at page 157 of the record held thus:
?It is thus established that the Claimant presented traditional history documents of title and evidence of ownership (Exhibit O) of contiguous land to the land in dispute. This satisfies, in my humble view, three of the five modes of ownership in IDUNDUN VS. OKUMAGBA (SUPRA).
On the contrary the Defendants did not proffer any root of title that led to the issuance of the certificate of occupancy, thus failing to show a better title than Claimant.
?Issue No. 4 is resolved in the Claimants? favour and against the Defendant as the Claimant has a better title.?
And went on further at page 158 to hold as follows:
?In the absence of the 1st Defendant being able to show a better root of title than the Claimant this makes a Claimant with a better root of title as having unassailed title.?
The Court at pages 159 ? 160 of the record granted the Respondent his claims (i) (ii) and (iv) and refused claims (ii) (v) and (vi).
?Dissatisfied with the judgment of the trial Court the Appellants have appealed to this Court. The Notice of Appeal is dated 20th April, 2012
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and filed on the same date. The Notice of Appeal was subsequently amended pursuant to the order of this Court. The Amended Notice of Appeal filed on the 22nd of March, 2018 and which was deemed as properly filed on the 26th of September, 2018 contains twelve Grounds of Appeal. In line with the rules of this Court, parties filed and exchanged Briefs of Argument.
The Appellants Brief of Argument dated 18th October, 2018 and which was filed on the 24th of October, 2018 was settled by Bolaji Faboro Esq.
The Respondent Brief of Argument filed on the 18th of January, 2019 was settled by Ojo Daniel Esq.
The Appellant Reply Brief dated 29th January, 2019 was filed on the 30th January, 2019.
At the hearing of this appeal on the 28th of March, 2019, learned Counsel representing both parties adopted and relied on their respective Briefs of Argument. While the Appellants Counsel argued in favour of allowing the appeal, counsel representing the Respondent urged us to dismiss the appeal.
Learned counsel to the Appellants in the Appellants Brief of Argument formulated the following issues for determination:
(i) Was the trial Judge right in
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holding that the identity of the disputed land is clear and not ambiguous
(ii) Did the learned trial Judge come to a correct decision when he held that the Claimant/Respondent proved his title to the disputed land
(iii) Did the Claimant/Respondent show evidence of better title to warrant the trial Judge make an Order of possession and injunction in his favour
(iv) Having dismissed all the heads of damages claimed by the Respondent, was the learned trial Judge right in law to proceed and award Claimant/Respondent N100,000.00 as general damages
(v) Did the trial Judge come to a correct and reasonable decision when he held that the defence of statute of limitation was not available to the Defendants/ Appellants.
It would appear that the Appellant has abandoned ground 12 of the Amended Notice of Appeal as no issue was formulated thereon. Ground 12 of the Amended Notice of Appeal is hereby struck out.
For his part, the following issues were formulated on behalf of the Respondents in the Respondents Brief of Argument:
?(i) Whether the learned trial Judge was not right when he held that the identity of the land in
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dispute was clear and not ambiguous.
(ii) Whether the learned trial Judge was not right when he held that the respondent has proved his title to the land in dispute.
(iii) Whether the learned trial Judge was not right when he awarded general damages against the appellants.
(iv) Whether the learned trial Judge was not right when he held that the respondent?s case was not statute barred.
The issues formulated by the Respondent are a re-cap of the issues formulated on behalf of the Appellant. The issues formulated by the Appellant cover grounds one to eleven of the Amended Notice of Appeal. I shall therefore deal with this appeal based on the issues formulated by the Appellant and would proceed to deal with them seriatim.
ISSUE ONE
Was the trial Judge right in holding that the identity of the disputed land is clear and not ambiguous.
Learned counsel to the Appellant submitted that the judgment of the lower Court awarding the land in dispute to the Respondent was tied to Exhibit G which is an inadmissible document. He argued that the said document is inadmissible on the ground that it was not countersigned by
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the Surveyor General pursuant to Section 23(i) (b) (i) (ii) of the Survey Act 1956 Laws of the Federation of Nigeria and Lagos. He relied on the cases of LAWSON VS. AFANI CONSTRUCTION LTD (2002) NWLR (PT. 752) PG. 585 AT 618; KWARZO VS. ADJEI 10 WACA 274; OGEDENGBE VS. BALOGUN (2007) ALL FWLR (PT. 366) 615 AT 628 and ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) PG. 360 AT 375 to support his argument. Still on Exhibit G, Appellants Counsel cited the case of OSENI VS. DAWODU (1994) 4 SCNJ 197 AT 211 to submit that even though the requirement that a survey plan should be countersigned by the Surveyor General was abrogated vide Decree No. 33 of 1974, Exhibit G which was made in 1963 ought to be expunged from the record for being legally inadmissible in evidence.
?
Following from the above, counsel submitted that Exhibit G lacks probative value for contradicting the Land Purchase Agreement Exhibit F. He contended that the two documents contain contradictory description of the disputed land particularly as regards the measurement and argued that both documents cannot be referring to the same land. He submitted that this being so the trial Court ought not to have
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relied on a Survey Plan that lacks probative value to confer title on the Respondent.
He argued further that the contradictions in the evidence of the witnesses of the Respondent is sufficient proof that the identity of the land was not proved with certainty. He relied on the cases of ROCKONOH PROPERTIES LTD. VS. NITEL & ANOR. (2001) 7 SC (PT. 3) 154 AT 176; AIKHIONBARE VS. OMOREGIE (1976) 12 SC 11 AT 27; AKANNI VS. ODEJIDE (2004) ALL FWLR (PT. 218) 834 ? 835 and AKANMU VS. ADIGUN (1993) 7 NWLR (PT. 304) 218 AT 235.
Learned counsel to the Respondent in response to Appellants arguments referred us to paragraphs 4 and 4a of the Amended Statement of Claim and urged us to hold that the evidence adduced by PW3 and PW4 constitute sufficient and credible evidence of the identity of the land in dispute. On the need for the Surveyor General to countersign Exhibit G canvassed by Appellants counsel, he submitted the applicable law is that in operation at the time the cause of action arose which is the Survey Law of Western Nigeria 1959 which had been amended twice. He referred us specifically to Section 3(b) of the Survey Law of Oyo State 2000 which
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according to him is the applicable law at the time the cause of action arose. He therefore submitted that Section 3(1) (b) (ii) of the Survey Law of Western Region 1959 which required the counter signature of the Surveyor General on any map, plan or diagram of land was no longer applicable and all that is required by the extent law for admissibility of a Survey Plan is that it must be prepared and signed by a Surveyor. He cited in support the case of BABATOLA VS. OBA ALADEJANA (2001) 12 NWLR (PT. 728) PG. 597 AT 560 PARAGRAPHS C ? H.
?
Respondent?s Counsel argued further that the combination of the evidence of the Respondent?s witnesses together with the Exhibits tendered through them adequately described the land in dispute. He maintained there is no material contradiction in the evidence of the Respondent?s witnesses. On the evidence of PW2 in response to questions put to him under cross examination that there was no building or structure on the land in dispute at the time of his visitation, counsel submitted that this piece of evidence would not make his evidence unreliable as a Court may disbelieve a witness in part without
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prejudicing the rest of his testimony which is neither challenged or in doubt. He craved in aid the case of EBRE VS. THE STATE (2001) 12 NWLR (PT. 728) 617 AT 642 ? 643 PARAGRAPHS E ? A.
With regard to the Appellants Counsel?s submission that Exhibit K was not pleaded, he referred us to paragraph 8 of the Respondent?s consequential amended reply to the statement of defence and urged us to resolve this issue in favour of the Respondent.
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Now, to the resolution of the issue under consideration. The law is settled that where a Claimant seeks a declaration of title to land, he has a bounden duty to establish with clarity the identity of the land he claims and the exact location. A declaration of title will not be granted where the land is not properly defined. This is the foremost and fundamental duty on a Claimant in a land dispute and good law as settled in a plethora of authorities. See EPI VS. AIGBEDION (1972) 10 SC 53; AKEREDOLU VS. AKINREMI (1989) 3 NWLR (PT. 108) 164); DABUP VS. KOLO (1993) 9 NWLR (PT. 317) 254; EZEAKABEKWE VS. EMENIKE (1998) 11 NWLR (PT. 575) 529; ILONA VS. IDAKWO (2003) 11 NWLR (PT. 830) 53; OGEDENGBE VS.BALOGUN (2007) 3 SC (PT. II) 529 and ?
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OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 851)1.
The burden on a claimant to prove the identity of the land in dispute will however not arise where the parties have not joined issues on the identity of the land on the face of the pleadings. In other words where on the face of the pleadings, it is evident that parties know the land in dispute, it will be deemed there is no dispute on the identity. See OTANMA VS. YOUDUBAGHA (2006) 2 NWLR (PT. 964) 337; AREMU VS. ADETORO (2007) 16 NWLR (PT. 1060) 244; and GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282.
The Respondent averred in paragraphs 1, 4 and 4A of the Amended Statement of Claim as follows:
“1. The Plaintiff is at all times material to this suit the owner of a piece or parcel of land being the stream set back to Akobale layout which the Plaintiff?s vendor, one Mrs. Kofoworola Abeni Pratt bought from one Alhaji E. A. Adeleke and Chief Saka Owoade by virtue of land Agreement dated 28th April, 1963. The whole area where the land is situated was formerly called Idi-Orogbo area, Oke-Ado, Ibadan but it is now known as Ring Road, Ibadan. The Plaintiff
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will rely on the said Land Agreement and Plan No. OG/138/63 dated 12th June 1963 which particularly described and delineated the area bought by the Plaintiffs vendor.
4. The said parcel of land comprised in Plan No. OG/138/63 originally belonged to the Olukosi family of Ibadan. The land is bounded on one side by Ajengbe stream, on the second side by Akobale layout, on the 3rd side by Access Road and on the fourth side by Elekunkun stream.
4A. The land in dispute forms part of the stream set back to Akobale Layout and it is bounded on one side by Ring Road on the second side by foot path on the third and fourth sides by Elekun and Ajeigbe streams.?
The Respondent gave evidence in support of the above averments and also tendered Exhibits G, K and O to establish the identity of the land. Exhibit G is the old survey plan of the whole area covering the land in dispute, Exhibit K is the plan of the disputed land while Exhibit O is the certified true copy of the judgment pronounced in favour of the Respondent in SUIT NO: I/452/04.
The Appellants claim is that the land in their possession is situate, lying and being along S.W. Ring
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Road and covers an area of 967.288 square meters (0.96) hectares and therefore different from the Respondents land shown in Plan No. OG/138/63 dated 13th June 1963.
I have carefully scrutinized the evidence of C.W.4, one Timothy Olubanjo Ilori, a registered land surveyor. His evidence is that he visited the land in dispute and identified Exhibit G as the old survey plan of the entire area covering the land. He is also the maker of Exhibit K (plan of the disputed land) which was used in SUIT NO: I/452/04. He was emphatic that the area occupied by the Appellant is the land in dispute in this case and which land belongs to the Respondent. He testified further that Exhibit K was made based on Exhibit G and that the area occupied by the 2nd Appellant falls within Exhibit G.
From all of the above, I am in full agreement with the trial Court that the combined effect of the pleadings of the Respondent, the evidence adduced in support particularly that of C.W.4 and Exhibits K and G as well as the survey plan attached to Exhibit T leads to the irresistible conclusion that the identity of the disputed land is not ambiguous.
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Furthermore, upon a careful
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consideration of the pleadings of parties and evidence on record, it is my firm view that parties herein are not in doubt as regards the identity of the disputed land. At page 45, D.W.2 who is the alter ego of the 1st Appellant stated in his evidence in chief as follows:
?The claimant is not the owner of the land in dispute and the land presently occupied by the 1st Defendant has never at any time been called or referred to as Idi Orogbo Area, Oke ? Ado, Ibadan.”
Furthermore, at line 3 page 74 of the record, D.W.2 admitted under cross examination as follows:
?Yes, I let the property in dispute to the 2nd Defendant.”
From the foregoing, it is clear to me that the parties which include the Appellant know the land in dispute. The law is that where both parties know the disputed land, the need to prove the identity of the land will not be in issue. More so, the instant Respondent has given adequate description of the land. See ADEDEJI VS. OLOSO (2007) 5 NWLR (PT. 1026) 133; ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360; NWANKWO VS. OFOTAMA (2009) 11 NWLR (PT. 1153) 496 AND DAKOLO VS. REWANE-DAKOLO (2011) 16 NWLR (PT. 1272) 22.
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In the case of EBOADE VS. ATOMESIN (1997) 5 NWLR (PT. 506) 490, Belgore JSC held as follows:
?The unwary judge could easily be swayed by deliberate change of the name of the land and or manipulation of the plan to confuse. It is now an unfortunate common practice in litigations on land especially in pleadings. But with care for detail; a trial judge will not allow a litigant to kill a case by giving the land in litigation a wrong, will I say a bad name.”
It follows therefore that whatever description or name the Appellant gave the disputed land, it is clear from the evidence and pleadings that the disputed land is known to both parties and I so hold.
It is the contention of learned counsel to the Appellants that Exhibit G relied upon by the trial Court in coming to its conclusion that the identity of the land has been established is legally inadmissible. This submission of counsel has no basis in law and I so hold. The applicable law at the time the cause of action arose in this case is the Survey Law of Oyo State 2000 which makes no provision for counter signature by the Surveyor General
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unlike Section 23(1)(b)(i)(ii) of the Survey Act, Laws of the Federation of Nigeria and Lagos 1956.
It is further Appellants Counsel?s submission that because Exhibit G and F gave different dimensions (in feet and meters) to the land in dispute it means the land is not properly identified. The argument of counsel on this point that the measurements could not have referred to the same land is tantamount to counsel giving evidence. The law as settled in a plethora of judicial authorities is that no matter how brilliant or breath taking submission of counsel may be, once it is not based on the issues joined between the parties and the evidence led thereon, it is irrelevant, inconsequential and goes to no issue and should be discountenanced. See UNION BANK OF NIGERIA PLC. & ANOR. VS. AYODARE & SONS (NIG.) LTD (2007) 13 NWLR (PT. 1052) 567; ISHOLA VS. AJIBOYE (1988) 1 NWLR (PT. 532) PG. 4; CHUKWUJEKWU VS. OLALERE (1992) 2 NWLR (PT. 211) 86 AND FBN PLC. VS. AKPARABONG COMMUNITY BANK (2006) 1 NWLR (PT. 962) 438.
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On submission of Appellants Counsel that there are contradictions of the evidence of the Respondent?s witnesses on the description of the
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disputed land, it is my firm view that there are no material contradictions in the description of the disputed land by the witnesses of the Respondent at the lower Court and I so hold.
The conclusion of the trial Court that the identity of the land is clear and unambiguous is unassailable and I so hold.
This issue is resolved against the Appellants.
ISSUE 2
Did the learned trial judge come to a correct decision when he held that the Claimant/Respondent proved his title to the disputed land?
This issue deals with proof of title to the land in dispute. The lower Court in its judgment held as follows.
?It is thus established that the claimant presented traditional history, document of title and evidence of ownership (Exhibit ?O?) of contiguous land to the land in dispute. This satisfies in my humble view, three of the five (5) modes of ownership in IDUNDUN V. OKUMAGBA (Supra).
On the contrary, the Defendants did not proffer any root of title that led to the issuance of the Certificate of Occupancy, thus failing to show a better title than claimant.?
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Appellants Counsel submitted that the
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Respondent?s claim is that the disputed land originally belonged to Olukosi family who sold a sizeable portion of the land vide Exhibit D (the agreement dated 23rd May 1957) to Messrs Saka Owoade, Emiola Amusa Adeleke and Samuel Adeyemi Laniyonu. That Samuel Laniyonu sold his own interest to Saka Owoade and Emiola Amusa Adeleke who laid it out into Akobale Layout (Exhibit A) and that it was the duo of Owoade and Adeleke that sold plot 1 of the Layout to Mrs. Pratti (the Respondent?s vendor). He submitted the 1st Appellant derived title in the land from one Mr. M. O. Ibrahim vide Exhibit T. Exhibit T is the original copy of the Certificate of Statutory Right of Occupancy issued to M.O. Ibrahim. That it was Mr. Ibrahim who sold his interest to Mr. Lawrence Famose who later sold to the 1st Appellant. He denied and put the title of Olukosi family on the land in issue.
He submitted the trial Court was wrong when it held that the Respondent satisfied the law in three of the five modes of proving ownership to land as enunciated in IDUNDUN VS. OKUMAGBA (1976) 9 ? 10 SC 277 AT 249 in that the Respondent did not discharge the burden on him to
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entitle him to the declaration sought. He argued that the Respondent did not produce his title documents and also did not prove the customary title of the Olukosi family. He relied on the cases of UGOJI VS. ONUKOGU (2005) ALL FWLR (PT. 271) 66 AT 74 ? 75; NGENE VS. IGBO (2000) 4 NWLR (PT. 651) 131 AT 142; MOGAJI VS. CADBURY (NIG.) LTD (1985) 2 NWLR (PT. 7) 393; OGUNLEYE VS. ONI (1990) 2 NWLR (PT. 135) 782 ? 783 AND ANYANWU VS. MBARA (1992) 5 NWLR (PT. 242) 386.
He therefore urged us to hold that the case of the Appellants on title is better and stronger than that of the Respondent and the trial Court ought to have preferred Exhibit T the source of title of the Appellant to Exhibits B and F.
Learned Counsel to the Respondent for his part argued that the land in dispute is a stream set back to Akobale Layout and not plots inside it. He contended that Messrs Saka Owoade and Emiola Amusa Adeleke were properly vested with the land they sold to the Respondent?s vendor. He said the recital in Exhibit D showed how the Olukosi family came about ownership of the land.
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On proof of title to land by acts of ownership, long possession and
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proof of possession of connected or adjoining land, counsel submitted the Respondent exercised various acts of ownership over the whole area inclusive of the land in dispute. He referred to the Respondent?s sale of a portion of his land to one Mrs Ekeke who obtained a Certificate of Occupancy on the land sold to her and the sale to Mr. Awolesu to buttress his point. The Certificate of Occupancy is Exhibit 1. He stated that no one has ever challenged Mrs Ekeke and Mr. Awolesu. He contended further that Exhibit F shows that the Respondent had been in possession of the land since 1975 while Exhibits G and K show that the Respondent owns all the adjoining land immediately before and including the land in dispute.
On Exhibit T relied on by the Appellants, Respondent?s Counsel submitted it is settled law that possession of a Certificate of Right of Occupancy is not conclusive proof of ownership and craved in aid the cases of OGUNLEYE VS. ONI (1990) 2 NWLR (PT. 135) PG. 745. He urged us to resolve this issue in favour of the Respondent and against the Appellants.
?
From the facts of the present appeal, a pertinent question to ask as rightly
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submitted by Appellants Counsel is whether the learned trial judge came to a correct decision when he held that the claimant/respondent proved his title to the disputed land.
In the celebrated case of IDUNDUN VS. OKUMAGBA (1976) 9 ? 10 SC 277 AT 249, the Supreme Court held that for a claimant to succeed in a claim for declaration of title to land, he must establish ownership by one or more of the following modes:
1) By traditional evidence;
2) By production of document of title;
3) By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner of the land;
4) Long possession;
5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See also FASORO VS. BEYIOKU (1988) 2 NWLR (PT. 876)263; AYANWALE VS. ODUSAMI (2011) 12 SC (PT. 3) PG. 59 AND DABO VS. ABDULLAHI (2005) 7 NWLR (PT. 923) 181.
It is pertinent to state that the law is not that a claimant must plead and prove more than one root
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of title to succeed. He can rely on only one of the methods. Where he relies on more than one method he does so in exercise of abundance of caution.
From the pleadings and evidence on record, I agree with the trial Court that the Respondent?s claim for ownership falls into modes 1 (Traditional Evidence) 2. (Production of documents of title) and 5. (Proof of possession of connected or adjacent land).
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The Respondent led evidence in support of all the averments in paragraphs 1, 3, 4, 4A, 5, 6, 7, 7A, 8, 8B, 9 and 10 of the Amended Statement of Claim. C.W.3 (Princess Yemi Oloto who is the claimants wife testified that the claimant bought the land from Mrs Kofoworola Abeni Pratt. C.W.3?s evidence of how the land devolved to her husband from the original owners under Native Law and Custom (the Olukosi Family) is clear and her description of the land in dispute as having a stream set back at the back, Ring Road in front, foot part at the third part with water diverted to the back is unmistakable. There is also evidence on record that the Respondent sold part of the adjacent land to one Mr. Awolesu and Mrs. Ekeke who subsequently obtained a
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Certificate of Occupancy in respect of her own portion. It is also on record that the Respondent successfully challenged trespassers on the adjacent land. Exhibit O is the judgment in SUIT NO: I/452/2004 BETWEEN: CHIEF KOLA DAISI VS. PROPHET (PRINCE) YOMI OLOTO. The Respondent has successfully proved acts of ownership of land adjacent to the land in dispute and I so hold.
The Appellants relied on Exhibit T the Certificate of Occupancy issued to Mr. Liasu Ola Ibrahim from whom they claim to have derived title. There is however no evidence on record of what document(s) of ownership Mr. Ola Ibrahim relied on to obtain the certificate of occupancy. The law is that for a grant of certificate of occupancy to be valid, there must not be in existence the valid title of another person with legal interest on the same land. Where such exists, it means the Certificate of Occupancy was granted against the letters and spirit of the Land Use Act and therefore invalid. See OLOHUNDE & ANOR. VS. ADEYOJU (2000) 6 SCNJ 470 AT 493 ? 494; OMIYALE VS. MACAULAY (2009) 7 NWLR (PT. 1141) 597.
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In the face of the evidence from the Respondent on the traditional history
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of the Olukosi family on the land and how it devolved on him, it became imperative for the Appellants to prove the validity of the Certificate of Occupancy relied upon by them. There is no such evidence on record. The finding of the lower Court that the Appellants did not proffer any root of title that led to the issuance of Exhibit T is unassailable and I so hold.
The Respondent?s pleadings and evidence thereon on traditional history, documents of title and evidence of ownership of contiguous land to the disputed land satisfy the 1st, 2nd and 5th modes recognized in IDUNDUN VS. OKUMAGBA (SUPRA) and I so hold. The trial Court was thus right to hold as such.
This issue is resolved against the Appellant.
ISSUE 3
Did the Claimant/Respondent show evidence of better title to warrant the learned trial judge making an order of possession and injunction in his favour?
On this issue, learned Counsel on behalf of the Appellants countered the Respondent?s submission that the 1st Appellants predecessor in title took advantage of the Respondent?s eye problem to gain possession of the land. He said the true position of things is
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that the 1st Appellant and his predecessors in title have always been in possession. He submitted that neither the Respondent nor any one through whom the Respondent claimed title ever exercised any form of possession over the disputed land. He submitted that the conclusion of the trial Court that the Respondent is entitled to an order of possession is erroneous since he (Respondent) was never in possession. He said the law is that where a Claimant who is not in possession claims possession from the Court, he must prove a better title. He relied on the cases of SHOSHAI GAMBO VS. ZINDUL TURDAM (1993) 6 NWLR (PT. 300) 500 AT 511 and FABUNMI VS. AGBE (1985) NWLR (PT. 2) 229.
He concluded the Respondent did not prove any title to the land and adopted his submissions under issues No. 1 and 2 in urging us to answer this issue in the negative, reverse the decision of the trial Court and dismiss the claims of the Respondent for possession and injunction. Respondent?s Counsel did not respond to the submission of counsel to the Appellants on this issue.
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I have found under issue 2 that the Respondent established a better title to the disputed land. I also
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found the Respondent exercised acts of ownership over the land. The trial Court is therefore in order to have made an order for possession and perpetual injunction in the Respondent?s favour. The cases of SHOSHAI GAMBO VS. ZINDUL TURDAM (SUPRA) and FABUNMI VS. AGBE (SUPRA) relied upon by Appellant?s Counsel are clearly distinguishable from the case at hand.
I therefore have no hesitation in resolving this issue against the Appellant.
ISSUE 4
Having dismissed all the heads of damages claimed by the Respondent, was the learned trial judge right in law to proceed and award the Claimant/Respondent N100,000.oo as general damages.
Learned Counsel to the Appellants in the Appellants Brief submitted that the trial Court which dismissed claims (v) and (vi) of paragraph 17 of the Respondent?s claim curiously proceeded to award general damages in the sum of N100,000.00 against the Appellants. This according to him is tantamount to the trial Court approbating and reprobating on the same issue. He argued further that this award of general damages is arbitrary and urged us to set it aside.
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Respondent?s Counsel for his part
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submitted that the Respondent having been adjudged owner of the disputed land is entitled to an award of damages against the Appellants who are trespassers.
The law is trite that a Plaintiff would be entitled to general damages for proven trespass even without any specific loss arising from the wrongful act constituting the trespass. See ELIOCHIN (NIGERIA) LTD. VS. MBADIWE (1986) LPELR ? 1119 (SC); GBEMISOLA VS. BOLARINWA (2014) LPELR ? 22463 (SC).
It is further the law that a plaintiff who has by evidence established that a Defendant is a trespasser is entitled without more to general damages for trespass. As a matter of fact, a claimant does not need to specifically plead general damages for the trial Court to make the award. It is to be further noted that there is no fixed rule by which to assess general damages. It is entirely at the discretion of the Court who should award a fair and reasonable compensation having regard to the circumstances of the particular loss. A successful plaintiff need not plead or prove any loss or quantum of loss before general damages can be awarded in his favour. The main consideration in an award of
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general damages is whether the plaintiff has successfully established a particular wrong done to him and once this is ascertained general damages will be awarded in his favour to ameliorate and assuage him for the wrong done and/or injury suffered.
From all of the principles on general damages enumerated above, it is clear that the award of N100,000.00 general damages against the Appellants by the lower Court was rightly made and I so hold. By refusing to award special damages which was not proved and proceeding to award general damages which flows naturally from trespass committed by the Appellants, it cannot be said that the lower Court approbated and reprobated. The award is not arbitrary in the circumstances of this case.
This issue is again resolved against the Appellants.
ISSUE 5 (ALTERNATIVE ISSUE)
Did the trial judge come to a correct and reasonable decision when he held that the defence of Statute of Limitation was not available to Defendants/Appellants?
The Appellants in addition to defending the action at the lower Court raised the defence of Limitation of action.
On this issue, the lower Court in its judgment relied on
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the case of FRED EGBE VS. HON. JUSTICE J. A. ADEFARASIN (1987)1 NWLR (PT. 47) PG. 1 AND 20 where the Supreme Court per Oputa JSC held thus:
?How does one determine the period of Limitation? The answer is simple by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses.?
Appellants Counsel argued this issue in the alternative. He drew our attention to the fact that the Appellants raised the defence of Limitation of action in their further Amended Statement of Defence. He submitted that the Respondent did not lay claim to the land between 1993 and 2000 despite the structures and visible activities on the land and also did not challenge Mr. Famose?s physical possession. He submitted that where parties join issues on the date the cause of action arose the matter will go for trial after which the trial Court will look at evidence to determine the day the cause of action arose. He relied on
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the case of CHIEF E.W.J. WOHEREM JP VS. JOEL EMEREUWA & ORS. (2004) ALL FWLR (PT. 221) 1570 AT 1581 ? 1582 PARAS H ? C.
He submitted further that by Section 3 of the Limitation Law (Cap. 76) of Oyo State 1989, no action shall be brought by any person to recover land after the expiration of 10 years that the right of action accrued. He urged us to hold that since the Respondent admitted in his pleadings that Mr. Famose was visibly in possession as at 1993 it follows his right of action accrued on 31st of December, 1993 and any action commenced after 31st December 1993 is statute barred. He urged us to resolve this issue in favour of the Appellants.
Arguing per contra, learned counsel to the Respondent submitted that in determining when a cause of action arises, it is the Writ of Summons and the Statement of Claim and not the Statement of Defence that should be examined by the Court. He craved in aid the cases of WOHEREM VS. EMEREUWA (2004) 13 NWLR (PT. 890) 398; ABIOLA VS. OLAWOYE (2006) 13 NWLR (PT. 996) 1 AT 22 and EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) 1. His position is that the cause of action arose in the year 2000 when the presence of the 1st
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Appellant?s predecessor in title was reported to the Respondent and urged us to resolve this issue against the Appellants.
The starting point in the consideration of this issue is to set out the provision of Section 3 and 4(1) of the Limitation Law, Cap 76 Laws of Oyo State of Nigeria 2000 (the applicable law in this suit) which provides as follows:
?1. No action shall be brought by any person to recover land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.
4(1) Where the person bringing an action to recover land or some person through whom he claims has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued from the date of dispossession or discountenance.?
?The law is that period of Limitation is determined by looking at the Writ of Summons and the Statement of Claim alleging the wrong which gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons
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was filed. Where a Defendant to an action contends that the action instituted by the Claimant is caught by a Limitation Law, what he is saying is that the Limitation Law has taken away the Claimants right of action leaving him with an empty cause of action which the Court lacks jurisdiction to enforce. See MILITARY ADMINISTRATOR EKITI STATE & 2 ORS VS. ALADEYELU & ORS. (2007) 4 -5 SC 201 AT 232; EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 and IBRAHIM VS. JUDICIAL SERVICE COMMISSION (1998) 14 NWLR (PT. 584) 1.
The Respondent as Claimant in paragraph 14B of the Amended Statement of Claim averred thus:
?14B The Plaintiff states that the 1st Defendant?s predecessor-in-title took possession of the land and built a motor yard therein when the Plaintiff fell sick resulting in eyes impairment and the presence of the 1st Defendant?s predecessor-in-title was reported to the Plaintiff in year 2000 as a result of which the Plaintiff caused his solicitor to write to the 1st Defendant?s predecessor in title in year 2001 requesting him to vacate the land.?
?See also paragraph 12 of the Amended Statement of Claim. C.W.3
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gave evidence in line with paragraphs 12 and 14A of the Amended Statement of Claim. It is clear from the pleading of the Respondent and I so hold that the Respondent first became aware of alleged trespassers on his land in the year 2001. The trial Court found as such in its judgment. The suit culminating in this appeal was filed on the 31st of August, 2004 and therefore falls within the Statutory Limitation period envisaged by the Limitation Law, Cap. 76, Laws of Oyo State, 2000.
This issue is also resolved against the Appellant.
In the final analysis, having resolved all issues against the Appellants, it is obvious this appeal lacks merit and should be dismissed. This appeal is dismissed. The judgment of the Oyo State High Court in Suit No: I/657/2004 delivered on the 10th of February, 2012 is hereby affirmed. I award costs of N100,000 against the Appellants in favour of the Respondent.
HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the draft of the judgment delivered by my learned brother Folasade Ayodeji Ojo, JCA.
?In the instant case, the Respondent as Claimant in the Court below
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claimed to have bought the land from one Mrs. Kofoworola Abeni Pratt by virtue of a Land Agreement dated the 25/4/1963. The law is that, where a person claims or traces the root of his title to land which he claims, to a particular vendor, he has the burden to adduce credible evidence to show that the vendor had what he transferred to him. The rule is nemo dat quod non habit (a person cannot give what he does not have). See Teridom (Nig.) Ltd v. Camp Lavet (Nig.) Ltd & Ors (2018) LPELR – 43893 (CA) and Ngene v. Igbo & Anor (2000) 4 NWLR (pt.651) 131. In the instant case, the Respondent was able to satisfy this requirement when he led credible evidence to the satisfaction of the Court on the root of title of his vendor.
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The identity of the land claimed was also proved with certainty. The Claimant/Respondent who had the burden to proof the identity of the land, pleaded and led credible evidence on same. A dispute Plan (Exhibit “G”) was also tendered showing the location, boundaries, extent and features of the land claimed by the Respondent. The Appellants who dispute the exact identity of the land in dispute had the burden of tendering
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their own Plan to contradict the Plan tendered by the Respondent. This they did not do. See Adelaja v. Alade (1999) 2 NWLR (pt.608) 544 and Evbuomwan v. Elema (1994) 6 NWLR (pt.353) 638. In that respects, the Appellants are deemed to have been satisfied with the plan given by the Respondent.
It is for the above reasons and the further reasons detailed in the lead judgment that I agreed that this appeal is devoid of merit. It is hereby dismissed. I abide by the consequential orders made.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have been privileged with a preview of the Judgment just delivered by my learned brother, Folasade Ayodeji Ojo JCA. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
?I abide by the consequential orders in the lead judgment.
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Appearances:
Bolaji Faboro, Esq. with him, Olakunle OmoyayiFor Appellant(s)
Ojo Daniel, Esq.For Respondent(s)
Appearances
Bolaji Faboro, Esq. with him, Olakunle OmoyayiFor Appellant
AND
Ojo Daniel, Esq.For Respondent
