MR. FREEBORN ONAKPOYA v. MR. OJI OYIBOCHA & ANOR
(2019)LCN/13385(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/B/336/2018
RATIO
LAND LAW: DECLARATION OF TITLE: TITLE CAN BE PROVED IN 5 WAYS
It is trite law that title to land can be proved in five ways. According to MUKHTAR JSC in ISEOGBEKUN & ANOR V ADELAKUN (2013) 2NWLR PART 1337 p.140;
by virtue of the authority of IDUNDUN & ORS V OKUMAGBA (1976) 10 S.C. 277 title to land can be proved by the following five grounds;
1. Proof by traditional history or traditional evidence
2. Proof by grant or the production of document of title
3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are true owners of the land
4. Proof by acts of laying possession
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
LONG POSSESSION OF LAND BY ACTS OF TRESPASS CANNOT AMOUNT TO ONWERSHIP
However being in long possession of the land, by acts of trespass does not and cannot graduate into ownership of title to land in the face of claim by true owner of land. See EZEKWESILI & ORS V AGBAPUONWU & ORS (2003) 9 NWLR PART 825 p. 337; CHUKWUMA V IFELOYE (2008) 18 NWLR PART 1118 p.204. In which case a trespasser cannot by the very act of trespass acquire valid possession in law. See CARRENA V AKINLASE (2008) 14NWLR (PT 1107) 281 -282.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. FREEBORN ONAKPOYA Appellant(s)
AND
1. MR. OJI OYIBOCHA
2. MR. MONDAY ABGUZA Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the claimant at the lower Court in Suit No. EHC/5/2016 ONAKPOYA VS. OYIBOCHA & ANOR against the decision of the trial Court delivered on 28/2/2018.
The claim of the claimant at the Court below read thus:
WHEREFORE: the Claimant claims from this Honourable Court against the Defendants jointly and severally as follows:-
I. The sum of N10,000,000.00 (Ten million Naira) being damages when the Defendants and their privies without the consent of the claimant first sought and obtained entered the land in possession of the Claimant and damage the temporary zinc structure of the claimant.
II. AN ORDER of injunction restraining the Defendants herein particularly the 2nd Defendants his privies agents assigns from further entering or remaining on the Claimant?s said property or carrying out any sundry acts of trespass on the Claimant?s property lying and situate at No. 12 Olarho street off Water Resources Road Effurun, Delta State.
?III. A DECLARATION that the properly lying and situate
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at No. 12 Olarho Street, off Water Resources Road, Effurun, Delta State, a place within the jurisdiction of this Honourable Court is the Bonafide property of the Claimant.
IV. A DECLARATION that the purported sale of the Claimant?s temporary building by the 1st Defendant to the 2nd Defendant is null and void and of no effect whatsoever.
V. OR
IN THE ALTERNATIVE An Order of this Honourable Court setting aside the purported sale of the Claimant?s temporary building lying and situate at No. 12, Olarho Street, off Water Resources Road, Effurun by the 1st Defendant to the 2nd Defendant.
VI. Any other relief.?
Parties filed and exchanged pleadings after which the learned trial judge, after hearing the parties entered judgment inter alia as follows:
?I have already resolved issue 1 in favour of the 1st Defendant: and the next question is whether a valid title has been passed on to the 2nd Defendant.
I see Exhibit ?II? which is the foundation document of the land in dispute i.e. the document in which Sammy Agoreyo acquired his interest on the land. I also see Exhibit ?J? which is the
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document with which the said Sammy Agoreyo subleased the land in dispute to Madam Omotigbe Efenure (1st Defendant?s Mother). I also see Exhibit ?M? which is the document with which the 1st Defendant (the only surviving child of Madam Omotigbe Efenure) transferred his interest to the 2nd Defendant. The transactions are sequential and traceable. The 2nd Defendant clearly acquired a lawful and good title to the land from 1st Defendant: and there is no dispute as to this.
The sum total of the resolution in Issue 1 and Issue 2 shows that the 2nd Defendant is lawfully in possession of the disputed land and I so hold.
The claim as put forward by the Claimant fails and is hereby dismissed with N25,000.00 (Twenty-five thousand Naira) cost in favour of the Defendants.?
Aggrieved by the above decision, the appellant challenged it via his Amended Notice of Appeal on 3 grounds:
GROUNDS OF APPEAL
Ground one
The learned trial judge erred in law when he failed to hold that Exhibit J, i.e Document with which Sammy Agoreyo subleased to Madam Opia is inadmissible in law.
PARTICULARS OF ERROR
Exhibit J is an
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instrument that:
Transfer or confers title to land and it ought to be registered.
By Section 16 of the land instrument Registration Law Cap 81, Laws of the Defunct Bendel State which is application to Delta state, Exhibit J is a registerable instrument.
Failure to register Exhibit J renders it inadmissible in law.
GROUND 2
The learned trial judge erred in law when he failed to hold that the Appellant (Claimant) has proved a better title of the land in dispute than the 1st Respondent (1st Defendant) and he is therefore entitled to the judgment of the Court.
PARTICULARS OF ERROR
The Appellant (Claimant) relied on long acts of possession as the Appellant (Claimant) was in possession of the land in dispute from 1974 -2014; whereas the 1st Respondent relied on Exhibit J which is inadmissible in law.
GROUND THREE
The judgment is against the weight of evidence.?
After the record of appeal had been transmitted parties filed and exchanged briefs of argument.
SUBMISSION OF COUNSEL
APPELLANT?S BRIEF OF ARGUMENT
Appellant?s brief of argument was filed on the 2/8/18 and deemed filed on
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23/1/19. It was settled by his counsel D.E. AGBAGA ESQ.
Learned counsel for the Appellant formulated three issues for determination.
1. Whether the learned trial judge erred when he failed to hold that the appellant (claimant) did not prove a better title than the respondent by the appellant?s long acts of possession.
2. Whether the learned trial judge made a correct approach to the evidence tendered by both parties to the case, in particular the evidential value of Exhibit ?J? the main plank in the 1st Respondent?s case, in coming to his conclusion.
3. Given the pleadings and the evidence led in this case, whether the trial judge carried out proper and adequate evaluation of the evidence of the parties before arriving at his judgment
ISSUE ONE
Learned counsel submitted that the trial judge erred when he held that the appellant could not prove a better title than the Respondents by appellant?s long acts of possession and relied on LAMBE VS AREMU (2004) ALL FWLR (PT 729) 1925 C.A.
Counsel submitted further that the above case stated five ways of proving ownership of land which acts of long possession was one of
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them. He argued that what was required to be proved was any of the ways of proving ownership and not all of them.
Appellant?s counsel stated that possession of property or parcel of land means that occupation or physical control of the property or parcel of land either personally or through an agent and relied on ETALUKU VS NIGERIAN BOTTLING CO. PLC (2005) ALL FWLR (PT 261) 353 C.A.
Counsel submitted that possession is prima facie proof a better title. See the case of ISEOGBEKUN V ADELAKUN (2013) ALL FWLR (PT 668) 168 S.C.
Appellant?s counsel submitted that an unregistered document cannot be tendered as Root of title but as a purchase receipt.
He further submitted since that the 1st Respondent admitted that the appellant was in possession of the land in dispute, the onus was therefore on the 1st Respondent to prove that he had a better title to the land in dispute.
ISSUE TWO
Appellant?s counsel submitted that the trial judge did not take the correct approach and assessment to the evidence tendered by both parties especially Exhibit J.
Appellant?s counsel submitted that an unregistered Deed of sublease
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can be admitted as purchase receipt and must be specifically pleaded as such. He cited JIMOH ATANDA V MOMODU ILIASU (2012) LPELLR ? 19662 (S.C)
Appellant?s counsel relied on Adekole v OGBUAGU (2015) ALL FWLR (PT 782) 1751 C.A. and submitted that production of a title document could not automatically entitle a party armed with to ownership of land as the Court had a duty to inquire into such title document.
ISSUE THREE
Appellant?s counsel submitted that from the pleadings and evidence led, the trial judge did not properly evaluate evidence adduced by parties.
Counsel submitted that the 1st Respondent could not have passed a valid interest to the 2nd Respondent because he had not interest to pass in the first place. He further argued that 1st Respondent had no legal title but an equitable interest.
Counsel contended that where there are two conflicting interest, the first in time will prevail.
1ST RESPONDENT?S BRIEF OF ARGUMENT
The 1st Respondent brief of argument was filed on the 3rd day of September 2018 and settled by SAMUEL O. ESHARE FASA ESQ.
?
1st Respondent counsel adopted the three issues as
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formulated by counsel for the Appellant to wit;
1. Whether the learned trial judge erred when he failed to hold that the appellant (claimant) did not prove a better title than the respondent by the appellant?s long acts of possession.
2. Whether the learned trial judge made a correct approach to the evidence tendered by both parties to the case, in particular the evidential value of Exhibit ?J? the main plank in the 1st Respondent?s case, in coming to his conclusion.
3. Given the pleadings and the evidence led in this case, whether the trial judge carried out proper and adequate evaluation of the evidence of the parties before arriving at his judgment
ISSUE ONE
The 1st respondent counsel argued that while it could be conceded that acts of long possession had been adjudged as one of the various methods of proving title to land, the principle could only avail a party when sought to rely on it, when the other party could not establish a better title.
?The 1st Respondent counsel submitted that the appellant?s case solely built on acts of long possession without more, could not displace the case of the 1st
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Respondent.
1st Respondent?s counsel contended that 1st respondent enjoys documentary evidence to support his title (EXHIBIT H,J, and K) and cited CARRENA V AKINLASE (2008) 14 NWLR (PT 1107) PP 281 -282) Para F ? A and ANOR.
Counsel submitted that equitable interest coupled with passion is a good title.
ISSUE TWO
The 1st respondent counsel submitted that the 1st respondent never built his case solely on Exhibit ?J? which was admitted without objection.
The 1st Respondent counsel argued that the 1st Respondent had been in constructive possession as he inherited the property from his mother who had put the appellant?s mother in possession.
He cited ATANDA V AJANI (1989) 3 NWLR (PT 111) P 548, PARA E ? F AND AMADI V AMADI (2010) 15 NWLR (PT 1271) PG 463, PARA E ?F.
Counsel urged the Court to reject the entire argument advanced in support of issue two by appellant?s counsel and resolve the issue in favour of the 1st Respondent.
ISSUE THREE
The 1st Respondent?s counsel submitted that contrary to the argument of appellant counsel, the trial Court diligently and properly
9
evaluated the evidence presented before it by parties.
Counsel further submitted that the judgment of the lower Court was aptly in line with extant principle of law.
Conclusively, the 1st Respondent counsel urged this Court to dismiss this appeal with punitive cost.
2ND RESPONDENT BRIEF OF ARGUMENT
The 2nd Respondent brief of argument was filed on the 7th of September, 2018 and brief was settled by CHIEF A.K. OSAWOTA.
The 2nd respondent?s counsel adopted the three issues for determination raised by the appellant.
1. On appellants plea of acts of possession/ownership.
The 2nd respondent?s counsel argued that the appellant could not plead or prove acts of ownership or possession over the alleged land from the year 2005 ? 2014 or the extended period of 1974 ? 2014.
Counsel submitted that the act of possession so pleaded is not sufficient to meet the standard to invoke the trite principle of law.
?2nd Respondent relied on the case of DYNG INYAM & ORS V AHAMDU EXCHIGAK & ORS (2017) LPELR ? 43283 (CA) AND EZEANYA DURU & ORS VS PETER ONWUMELU & ANOR (2001) LPELR -970 (SC).<br< p=””
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Counsel further submitted that the appellant could not state any act that he did continually from 2005 -2014 on the land in dispute.
2. Plea of acts of possession vis–vis Proof of title.
The 2nd Respondent counsel submitted that a plea of acts of possession/ownership could only succeed when the root of title of the party had been established.
2nd respondent counsel cited ADENIJI AINA & ANOR V ADEGBOYE ARIYO & ANOR (2017) LPELR 42888 (CA) Page 2, Ratio 2 or Page 25 -27.
3. What is the root of title of the Appellant
Counsel argued that the root of title of the appellant was stated to be just acts of possession without more.
counsel contended also that the appellant also claimed his root of title to be a gift from one Sammy Agoriyo through one Alice Onogagavwen.
Counsel argued that during cross ?examination the appellant stated that his predecessor?in-title had paid the sum N4,000 to purchase the land, the receipt which he could not produce.
He submitted that the appellant had no root of title and could not rely on the weakness of the respondent?s case.
?2nd Respondent counsel relied
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on SECTION 35 OF EVIDENCE ACT 2011 and urged the Court to resolve same in favour of the 2nd respondent.
RESOLUTION OF ISSUES
I have deeply considered the submissions of counsel and the contents of the record of appeal. All parties are agreed on the three issues formulated by learned appellant?s counsel in his brief. I shall therefore adopt the three issues and resolve them in seriatim.
ISSUE 1
Whether the learned trial judge erred when he failed to hold that the appellant (claimant) did not prove a better title than the respondent by the Appellant?s long acts of possession.
The appellant at the lower Court relied on long acts of possession to prove his ownership of the land in dispute. It is trite law that title to land can be proved in five ways. According to MUKHTAR JSC in ISEOGBEKUN & ANOR V ADELAKUN (2013) 2NWLR PART 1337 p.140;
?by virtue of the authority of IDUNDUN & ORS V OKUMAGBA (1976) 10 S.C. 277 title to land can be proved by the following five grounds;
1. Proof by traditional history or traditional evidence
2. Proof by grant or the production of document of title
3. Proof by acts
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of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are true owners of the land
4. Proof by acts of laying possession
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.?
However being in long possession of the land, by acts of trespass does not and cannot graduate into ownership of title to land in the face of claim by true owner of land. See EZEKWESILI & ORS V AGBAPUONWU & ORS (2003) 9 NWLR PART 825 p. 337; CHUKWUMA V IFELOYE (2008) 18 NWLR PART 1118 p.204. In which case a trespasser cannot by the very act of trespass acquire valid possession in law. See CARRENA V AKINLASE (2008) 14NWLR (PT 1107) 281 -282.
It is in the light of the above pertinent to trace the roots of title of the parties in resolving this issue.
The appellant claimed to have inherited the land in dispute from his mother by inheritance in 1974.
He claimed her mother Mary Oboruku Atunusha acquired the said piece of land through her
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elder sister Late Onogagavwen. The said land was gift to late Onogagavwen by Sammy Agoreyo. Who was an in law to his mother?s late sister.
It was the case of the 1st defendant however that this same Sammy Agoreyo gave the same portion of land to his late mother, Madam Omotigbe Efenure sometimes in July 1971 and a deed of sublease to the effect was duly executed by Samuel Agoreyo. It seems clear to me that insofar there is nothing on record to show that Sammy Agoreyo or Samuel Agoreyo was dead, he was a vital witness that should have been called in this case. Both parties claimed to have derived their title from him.
The appellant claimed in his adopted additional statement thus (in paragraphs 6, 7 and 15)
?PARAGRAPH 6
That I deny paragraph 3 of the Statement of Defence and state that I am the beneficial owner of the land in dispute and not the 1st Defendant. And that I became the beneficial owner of the land in dispute by inheritance from my mother, who got same through her older sister, Mrs. Alice Onogagavwen from Sammy Agoreyo as a gift.
PARAGRAPH 7
That I state in further reply to paragraph 3 of the Statement of
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Defence that I have no title documents in respect of the land in dispute, because my mother who was not literate never knew the importance of such documents and that the document in the possession of the 1st Defendant are mere fabrications made for the purpose.
PARAGRAPH 15
That I deny paragraph 14 of the Statement of Defence and state that the land in dispute was acquired by my mother in 1974 through her older sister, Late Alice Onogagavwen as a gift from Sammy Agoreyo, who was an in-law to my mother?s sister and also a member of my mother?s Igbe. My mother deforested the land in dispute and erected temporary structures thereon, which the 2nd Defendant broke into with his thugs on the 8th of January, 2015 and destroyed part of it, chased me out with cutlasses and assaulted one of my tenants.?
Sammy Agoreyo in 1974, did not issue receipt to witness the transaction between him and the appellants? mother But in 1977 he entered into a deed of sublease of the said land to the 1st Respondent?s mother.
?
Joseph Oyibocha, the 1st Respondent in his adopted statement on oath stated thus in paragraphs 3 ? 8.<br< p=””
</br<
15
PARAGRAPH 3
That the Claimant does not possess any right or interest over the land, the subject matter of this case. The subject matter of this case was acquired by my late mother, Madam Omotigbe Efenure, sometime in July, 1977 from on Mr. Sammy Agoreyo.
PARAGRAPH 4
That pursuant to the fact contained in paragraph 3 above, a deed of sublease was duly executed in favour of my late mother by the said Mr. Samuel Agoreyo. I will rely on the photocopy of the sublease in this case.
PARAGRAPH 5
That my mother upon the acquisition of the aforesaid land contracted a Surveyor who captioned the actual dimension of the land in a Survey plan. That I will also rely on the photocopy of the survey plan.
PARAGRAPH 6
That the Claimant was only residing in the said premises as a trespasser as he was not put in possession by my late mother or me.
PARAGRAPH 7
That it was only the mother of the Claimant that was put in possession of the premises and it was solely for the purpose of promoting the igbe/olokun deity activities from that branch, because my mother was in charge of the headquarters at Agbarho, Ughelli North Local Government
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Area of Delta State.
PARAGRAPH 8
That the temporary structure erected on the premises was erected by my late mother, Madam Omotigbe Efenure, for the said igbe activities before she appointed the mother of the Claimant to head the place, the fact of the person who erected the said structure is clearly stated in the Deed of sublease executed in favour of my mother.?
Now the appellant who was the claimant at the lower Court had the duty not only to show that he was in possession but also that he was not a trespasser on the land as the possession by a trespasser is not valid possession in law see CHUKWUMA V IFELOYE (supra) CARRENA V AKINLASE (supra).
The appellant had no receipt to prove that the said land was given to his mother, he had no purchase agreement, the vendor of the land Sammy Agoreyo was not called. In fact no witness was called apart from appellant who did not witness the transaction.
?The 1st Respondent on the other hand tendered a deed of sublease signed by Sammy Agoreyo. It is not case of the appellant that the signature of Sammy Agoreyo was forged. The deed can be regarded as evidence of what took place between
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Agoreyo and 1st Respondent mother.
It has been contended that the deed of sublease was not registered and so was inadmissible. Learned counsel for the appellant cited Section 16 of the Land Instrument Registration Law of Defunct Bendel State (as applicable in Delta State. He relied also on AKINDURO V ALAYA (2007) LPELR 344 (SC) OLALEYE V TRUSTEES OF ECWA (2011) ALL FWLR (PT 565) 297 (C.A) to support his contention.
However in the recent case of ANAGBADO V FARUK (2018) LPELR ? 44909 (S.C) the Supreme Court, per EJEMBI EKO J.S.C. knocked down a similar provision of Kaduna State Lands Registration Law of 1991 as being in conflict with the provision of Evidence Act of 2011. Section 15 of the Kaduna State Lands Registration Law of 1991 is in pari materia with the provision of Section 16 of Land Instrument Registration Laws of Bendel State of 1976 as applicable in Delta State.
EKO JSC. had this to say
?The Appellant has made an issue of whether Exhibit P2 the letter of offer issued to the Respondent was a registerable document which must be previously registered under the Kaduna State Lands Registration Law Cap 85 Laws of Kaduna
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State 1991 before it would be admissible in evidence.
.. The Law Cap 85 of Kaduna State (Section thereof) insofar as it purports to render inadmissible any material and relevant piece of evidence in Evidence under the Evidence Act 2011 is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and item 23 of the Exclusive Legislative List set out in Part 1 of the second schedule to the Constitution. Evidence is item 23 of the Exclusive Legislative list. I am of the firm view that in view of Section 4(5) of the Constitution read with Section 4(2) and item 23 of the Exclusive Legislative list set out in Part 1 of the Second Schedule to the Constitution, in the event of Section 15 of the law Cap 85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying on this issue is that Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible under the Evidence Act
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2011.?
In the light of the above, I also hold that Section 16 of the Lands Instrument Registration Law of 1991 of Bendel State (as applicable in Delta State) is inconsistent with the provision of the Evidence Act and consequently null and void.
It follows therefore that the coast is very clear for the unregistered sublease of 1st Respondent to sustain his claim to title to the land in dispute and to fortify his claim to better title than that of the appellant. I resolve this issue in favour of the Respondent in the circumstance.
ISSUE 2
Whether the learned trial judge made a correct approach to the evidence tendered by both parties to the case, in particular the evidential value of Exhibit J, the main plank in the 1st Respondent?s case, in coming to his conclusion.
In view of the aforesaid under issue 1, I also resolve Issue 2 in favour of the Respondents. Exhibit J, the deed of sublease was rightfully and lawfully admitted as Exhibit and acted upon by the learned trial judge.
ISSUE 3
Given the pleadings and the evidence led in this case, whether the trial judge carried out proper and adequate evaluation of
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the evidence of the parties before arriving at his judgment.
I also resolve this issue n favour of the Respondents. The appellant called no witness in support of his claim. He had no receipt to tender as exhibit. He failed to call the original owner to testify in support of his case and did not explain why he failed to do so. The same person whom he alleged sold the land to his mother and did not issue any receipt nor enter into any written agreement sold the same land to the 1st Respondent?s mother and entered into a deed of sub-lease. The evidence of the appellant at the lower Court is like a fairy tale and the learned trial Judge was right in my respectful view to have rejected it.
This appeal lacks merit. It is accordingly dismissed. The judgment of the lower Court in Suit No. EHC/5/2016 delivered on 7/5/2018 is hereby affirmed.
Parties are to bear their respective costs.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the Judgment just delivered by my learned brother, TUNDE OVEBAMIJI AWOTOYE, JCA.
?I share the same view and
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agree entirely with the reasoning and conclusion that this appeal lacks merit and it is hereby dismissed by me. I also affirm the judgment of the lower Court in Suit No. EHC/5/2016 delivered on the 7/5/2018. I abide by the order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother. TUNDE OYEBAMIJI AWOTOYE, JCA.
I agree with the reasoning and conclusions of my learned brother in dismissing this appeal. For all the reasons advanced in the leading judgment, I also dismiss the appeal.
?I abide by all the orders made in the leading judgment, including the order as to costs.
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Appearances:
D.E. Agbaga with him, F.A. AriakpeFor Appellant(s)
S.O. Esharefasa for 1st Respondent.
A.K. Osawota with him, F.D. Ohwoto and L.C. Animan for 2nd RespondentFor Respondent(s)
Appearances
D.E. Agbaga with him, F.A. AriakpeFor Appellant
AND
S.O. Esharefasa for 1st Respondent.
A.K. Osawota with him, F.D. Ohwoto and L.C. Animan for 2nd RespondentFor Respondent
