MR. HARUNA VATSA v. MRS. JULIANA UGAH
(2014)LCN/7270(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of June, 2014
CA/K/14/2010
RATIO
WHERE TWO PARTIES CLAIM POSSESSION, POSSESSION IS ASCRIBED TO THE PERSON WITH A BETTER TITLE.
The law is clear that where two parties claim possession, the law ascribes possession to one who can show a better title. See Thompson v Arowolo (2003) 7 NWLR Part 818 Page 163 at 208 Para B per Ejiwunmi JSC. See also Iseru v Catholic Bishop of Warri Diocese (1997) 3 NWLR Part 495 Page 577 at 526 Para E per Iguh JSC.
It was also held in the case of Basill v Fajebe (2001) 11 NWLR Part 725 Page 592 at 677 Para C-D per Ayoola JSC that where there is a dispute as to which of two persons is in possession, the presumption is that the person having the title to the land is in possession. per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
EVIDENCE: PREPONDERANCE OF EVIDENCE IN CIVIL CASES
Civil cases, as in land cases,, it has been held, must be established by preponderance of evidence. See the case of Adeleke v Iyanda (2001) 13 NWLR (Pt. 729) Page 1 at Page 21-22 Paras H-D per Uwaifo JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
MR. HARUNA VATSA – Appellant(s)
AND
MRS. JULIANA UGAH – Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High court of Kaduna State presided over by Hon. Justice J. Abiriyi delivered on the 15th day of May 2009 in suit No. KDH /KAD/500/2008.
The claim of the Respondent, as plaintiff before the lower court was for the following:
“The Plaintiff avers that there has never been a time the peaceful possession of the farmland was disturbed by anybody howsoever until the act of trespass by the defendant, which said act has caused the Plaintiff financial loss.”
In opposition, the Defendant, Appellant herein, filed a Statement of Defence and counterclaimed for the sum of N2 Million as general damages for trespass and for the cost of defending the suit.
In proof of her claim, the Respondent testified and called eight witnesses. She tendered one document, Exhibit 1. The other documents sought to be tendered were objected to by the Defendant and consequently rejected by the trial Court. The Appellant similarly testified and called three witnesses. He tendered no documents.
Upon conclusion of trial and the adoption of written addresses by the parties, the trial Judge delivered Judgment in favour of the Respondent, in the following terms:
“The claim of the Plaintiff on the other hand succeeds in part. Judgment is hereby entered in favour of the plaintiff against the Defendant in the following terms:
1. Plaintiff is hereby declared the equitable owner of the plot lying and situate at Ungwan Maisamari Malali, Kaduna.
2. An order of perpetual injunction is hereby made restraining the defendants, his agents, co-heirs, servants and privies or persons claiming through him or on his behalf from doing anything whatsoever on the said farmland situate at Ungwan Maisamari Malali, Kaduna.
Defendant shall pay to the plaintiff the sum of N200,000 being general damages for trespass into the land and N5,000 costs.
As the claim for special damages has not been proved same should be dismissed. The claim for special damages is accordingly dismissed.”
Dissatisfied with the Judgment, the Respondent has appealed to this Court. The parties filed and exchanged Written Briefs of Argument. The Appellants’ Brief of Argument was settled by A.A. Manta Esq. of Manta & Co while the Respondent’s Brief was settled by Morris Odeh Esq. of Morris Odeh & Co.
The Appellant’s counsel, in the Appellant’s Brief of Argument, raised the following issues for determination:
“1) Whether the trial court did not misdirect itself and thereby come to a wrong decision when it held that the evidence of PW6 under cross-examination as to the actual owner of the land though contradicted his evidence in chief same could not change the contents of Exhibit 1.
2) Whether the trial court was right in holding that the contradictions in the plaintiff’s case were mere slips and do not go to the root of the case which is the purchase or otherwise of the farmland.
3) Whether the trial court was right when it held that the Plaintiff acquired an equitable interest in the farmland by virtue of Exhibit 1 and consequently declared her the equitable owner of same.
4) Whether the plaintiff’s failure to prove the identity of the land she was claiming was not fatal to her case.
5) Whether the judgment of the trial court is supported by the evidence.
6) Whether the trial court was right when it dismissed the Appellant’s counter claim for trespass when the defendant proved his possession of the land and the plaintiff failed to prove a better title.”
The Respondent’s counsel in the Respondent’s Brief, raised the following as the issues that arise for determination:
“1) Whether the Respondent is not entitled to judgment in her favour on the state of the pleadings and evidence before the Court?
2) Whether the findings of fact and decision of the lower Court is perverse in view of the evidence before it?”
I shall adopt as the issues that arise for determination those raised by the Respondent, but shall renumber the issues, taking the 2nd issue for determination first, which is:
“Whether the findings of fact and decision of the lower court is perverse in view of the evidence before it?”
The evidence before the lower Court, as aforesaid, was presented by nine witnesses for the Respondent and five witnesses for the Appellant. The witness depositions of the witnesses are contained on Pages 10-45 of the Record of Proceedings and their cross examination contained on Pages 130-147.
In order to determine if the findings of fact and the decision of the lower court is perverse, it is necessary to set out the evidence before the lower court, commencing with the Respondent who testified as PW9.
The deposition of the Respondent is that she is the wife of Late Air Vice Marshall Ugah (AVM), the purchaser of the land in dispute, situate at Unguwar Maisamari, Malali,Kaduna. The property was sold to him by Alhaji Abdullahi usman and Alhaji Mohammed Maidoya and witnessed by the then Sarkin Badarawa. The receipt issued is dated 6th August 1984 (Exhibit 1). The size of the farmland is 1.434 Hectares (3.544) acres.
At the time her husband bought the land, the land was being cultivated by one Baba Tanko (PW6), who planted sugar cane on the land. Her husband subsequently planted over 60 mango seedlings on the land. PW6 continued looking after the land. The AVM died in 1995 and the responsibility for looking after the farm fell on her. Subsequently PW6, due to advanced age and the large expanse of land, introduced Daniel and Yari Bayero as the people who would be farming along with him. At the end of every harvest season, a portion of the harvest was brought to her and her husband. This continued after his death, until 2004 when she informed them of her desire to take over the farm. She cleared the farm, engaged a surveyor who demarcated it into a residential layout and “beaconed” the boundaries.
They were not challenged until when the Appellant, in the company of some hoodlums, came on the land, alleging that five plots were allocated to his father by the local government in 1983. This allocation, he said, is contained in Local Government certificate of occupancy No. 019502 dated 16th March 1983 in respect of Plot No. 22/27 U/Maisamari, Malali. She denied that there was ever an allocation in Unguwan Maisamari by the Local Government of any plot of land. The Appellant’s land, if at all, has no relation to the farmland in question, she contended.
She tendered in evidence the receipt issued to her husband (Exhibit 1). Attempts to tender the sketch plan of the land and the lay out of the land were opposed by the Appellant’s counsel and rejected by the trial Judge.
Under cross examination by the Appellant’s Counsel, she stated that she does not know the vendors, Alhaji Mohammed Maidoya and Alhaji Abdullahi Usman personally and was not present when her husband made the purchase. It was in 2005 when her husband first took her to the land. There were no concrete pillars in 2005 when he took her there. The pillars were put on the land in 2005. She hired a caterpillar in 2004 to clear the land. PW6 had been working on the land since they purchased the land in 1984.
She corrected herself, that it was not in 2005 that the pillars were put on the land but in 1984/85.
Under Re-Examination, she stated that her husband first took her to the land in 1985.
The deposition of Abdullahi Bakano (PW1), 75 years old is that Alhaji Maidoya, the former owner of the land in dispute personally informed him that the land was for sale. The Respondent’s husband bought the land from him (Alhaji Maidoya) and Abdullahi Usman. At the time of the sale, the Chief of Badarawa was Dahiru Hassan. Thereafter, he (the witness) left for his home town in Kano State.
Under cross examination, he stated that he knew the land in dispute very well and had known it for 25 years. He does not know the people who own the land adjoining. Alhaji Maidoya was the original owner of the land. He did not own it jointly with others. He does not know Alhaji Usman. He (the witness) was present during the sale. The ward Head was present during the sale. The name of the ward Head is Taro. Dahiru Hassan, the Chief of Badarwa also signed. He does not know whether the Chief of Badarwa signed or thumb printed.
The deposition of PW2, Daniel Madaki, is that “Baba Tanko” (PW6) was the person entrusted with the farmland by the AVM Ugah (AVM). When PW6 could no longer cultivate the land alone, he took him (the witness) to the AVM and obtained the AVM’s consent for he and others, including Yari Bayero, to join in the cultivation of the land. They cultivated the land until 2004 when the Respondent asked them to stop and she cleared the land. He (the witness) planted some shrubs and trees on the land to demarcate it from other land and to prevent pigs from entering.
They took produce from the farm to the AVM and after his death, to the Respondent.
Under cross examination, the witness said he is very familiar with the land and farmed on the land for 10 years. He knew through Baba Tanko (PW6) that the AVM bought the land from somebody.
He also knows that there are concrete pillars, all of which had fallen. When he started farming, the pillars were not there. It was when he was farming that the pillars were erected though he was not present when they were being erected. He restated the names of the people who farmed with him on the land, when PW5 was too old to farm alone.
The evidence of Kasuwa Makama (PW4), 75 years old and the present ward Head of Ungwa Maisamari, was also a corroboration of the account of the witnesses. He added that he had been Ward Head for 30 years and is aware that Baba Tanko (PW6) has been farming on the land for over 30 years. He accompanied PW5 (Baba Tanko), Daniel and Yari Bayero (PW2 and PW8) to the Respondent to introduce PW2 and PW8 as those who would be farming with PW6. He confirmed that these farmers would take the harvest of sugar cane and mango to the Respondent. It is common that when one wants to buy land they come through the ward Head. At the time of the sale of the land, it was his older brother that was the ward Head. He does not know if his brother participated in the sate. Sunday Sarki is the son of his elder brother, the Ward Head before him.
Sunday Sarki testified as PW5. He stated that he is the Village Head of Unguwar Maisamari Malali since 2002. His father was Ward Head of Unguwan Maisamari for over 30 years and died in 1985. He was succeeded by Mai Ungwa Kasuwa Makama (PW4) as Ward Head. It was when he became Ward Head that he was informed by those farming on the land that the land was sold to AVM. The farmers had been farming on the land till 2004 when they were asked by the Respondent to stop. In June 2008 the Appellant and others came to challenge the Respondent’s ownership on the ground that the Government had allocated it to their father.
The witness affirmed that, as Village Head, there has been no Government allocation in Unguwan Maisamari, Malali, Kaduna.
Under cross examination, he stated that it was after he had become Village Head that he was informed that the land had been sold to the AVM. His (the witness’) father was Ward Head of Unguwar Maisamari, by name Maisamari Sarki. He does not know if he was also known as Taro. He was there when Daniel, Yari, Gajere and others were asked to farm on the land. He does not recognize any signature on the document.
Mallam Tanko Badarwa testified as PW6. His age, he said, is over 90 years. He has been farming on the land even before the 1st coming of the Queen of England to Nigeria, so he knows the facts of the case. Sometime ago late AVM Ugah bought the farmland.
His testimony was a confirmation of the account of the witnesses.
He added that the land at the time they started cultivating was marshy and swampy and that he had been farming on the land for over 50 years. No one had ever laid claim to the land in question. Under cross examination, he stated that his name is “Tanko Kaduna Mohammed Tanko Kaduna Badarawa”. The only person he knows as the owner of the land is Garba Mohammadu, now deceased. He confirmed his introduction of farmers to the owners to join him in farming the land. He confirmed that there were concrete pillars on the land, who he was told were put by the owners.
Mallam Abdullahi Babayo (PW7) driver of the AVM testified of visits of the AVM to the farmland and his (the witness’) visits to the care taker, Mallam Tanko (PW6) who would then give him sugar cane and mangoes to take to the AVM and the Respondent.
Under cross examination he stated that he was not with the AVM when he bought the land. He started going with him to the farm in 1990.
Yari Bayero (PW8) stated that he was one of those farming on the land in dispute. They used to take sugar cane and mangoes to the Respondent. There was never any rival claim to the AVM’s.
Under cross examination, he stated that it was when he started working on the land that he got to know the actual owner of the land. He farmed on the land for three years.
The account of the Appellant, who testified as DW1 is that in 1986 when they were taking stock of their father’s properties after his death, the late Sarki Unguwan Shanu, who was close to his father, informed the family that their father had a piece of land at Unguwan Gado Malali. He, with his mother went to the land and instructed the Sarki Unguwan Shanu, through whom the land was bought, to continue taking care of the land. This was until 1988 when his mother took over the land, cleared it, planted crops and put one Caleb Dogo on the land. In early 2008, Caleb Dogo informed them that the Sarki Unguwan Maisamari informed them that the land did not belong to them but the Respondent, who was accused of removing their pillars from the land. He denied having presented the Respondent with any Certificate of occupancy or the documents alleged. He claimed that he went to the Local Government to enquire about the Respondent’s purported Certificate of Occupancy but could not trace the same.
Under cross examination, he denied that he said Sarkin Ungwan Sarki bought the land on behalf of his father. He insisted that the land was bought in 1983. No one was farming on the land when the land was bought. He does not know the size of the land. While his father was alive, he did not know about the land. It was in 2003 that his mother took bulldozers to clear the land. Everything he knows about the land is what he was told by people. He has no agreement passed to him in respect of the land.
Mallam Iyar Kawo (DW 2) stated that he has a farmland at Ungwan Maisamari, Malali, which he inherited from his father and which land shares a boundary with the land in dispute. About 26 years Ogo, Shehu Gada, now deceased, informed him that he had sold the land to the Appellant’s father, Mamman Vatsa. He, the witness, saw Mamman Vatsa bring a surveyor to the land, clear the land and put pillars on the land. Fruit trees and economic trees were also planted on the land. He denied that Tanko Badarawa ever farmed on the land. Shehu Gada’s father used to farm on the land and after his deceased, his son. He denied that Alhaji Mohammed Maidoya or Alhaji Abdullahi Usman were the previous owners of the land, in dispute. He has never seen any of the alleged farmers on the land.
Under cross examination, he denied that any of the Respondent’s witnesses had been farming on the land, neither does he know them. He was not present when the transaction of sale was conducted but was told about it. All he knows about the land is what Shehu Gada told him. The farm is about 10 plots.
Alhaji Yakubu Mohammed (DW 3) testified that he knows the land in dispute as he owns farm land in the area. The land in dispute once belonged to Shehu Gada, now deceased. He denied that Alhaji Mohammed Mai Doya or Alhaji Abdullahi Usman owned the farmland. He was aware when Mamman Vatsa came, 25 years ago, to say that he had bought a farm land, proceeded to survey, clear same and install pillars. No one has been farming on the land since Mamman Vatsa put pillars on the land.
Under cross examination, he said he never saw PW6 on the land. He does not know Alhaji Maidoya. He knows that Alhaji Shehu Gada was the owner of the land, as he told him so.
Caleb Dogo (DW 4) stated that sometime in 2003, late Mrs Vatsa came to clear a piece of land at Unguwan Gado, also known as Ungwan Maisamari. Mrs Vatsa put him in charge of the land and gave him a small portion of the land to farm. After she died, the children directed him to continue to look after the land. In early 2008, the Sarkin Unguwan Gado informed him that there was a challenge on the land and that he had examined the Respondent’s Certificate of Occupancy and was satisfied that she is the owner and directed him (the witness) to leave the land.
Under cross examination, he said he had been taking care of the land since 2003. He does not know how many plots of land are on the land in dispute. He got to know the Appellant after the death of his (Appellant’s) mother in 2007. He is no longer farming on the land as the Chief of Unguwar Maisamari told him to stop working on the land. The land belongs to Mamman Vatsa because it was his wife that gave him (the witness) the land to farm on. His conclusions are based on what he was told.
One of the complaints of the Appellant in his Notice of Appeal, which he has encapsulated in his issues 1 and 3, is the holding by the trial Judge that the contradictions in the evidence of the Respondent’s witnesses are not material contradictions sufficient to defeat the Respondent’s case. This failure was an error and led to the Court misdirecting itself.
The contradictions, counsel alleged, are the evidence of PW6, who stated that the land belonged to one Garba Mohammed as against the witness deposition and the Respondent’s claim that the land belonged jointly to Alhaji Mohammed Maidoya and Abdullahi Usman. Also, that the Respondent never pleaded or stated in her deposition that she or her husband put concrete pillars on the land, yet in her evidence, she contradicted herself in first stating, under cross examination that the concrete pillars were fixed in 2005 but corrected herself that it was in 1984/85.
She also contradicted herself when she said, under cross examination, that her husband took her to the land in 2005 but later said, under re-examination, that it was in 1985.
The trial Judge, counsel further complained, failed to be guided by the several decisions of the Supreme Court that where a witness called by a party gives evidence against that party the evidence will be regarded as one against interest. The Respondent’s case can therefore not stand and the Respondent cannot be said to have bought from the legitimate owners. The trial Judge thus misdirected itself and came to a wrong decision occasioning a grave miscarriage of justice.
As there was evidence, particularly from the Respondent’s witnesses that someone other than the named owners in the receipt of purchase were the real owners of the land, the trial court was wrong to ignore such evidence and hold that the receipt (Exhibit 1) conferred equitable interest in the land on the Respondent. The Respondent, not having bought from the legitimate owners, rendered the receipt of no account and incapable of conferring any interest in the Respondent.
The Respondent’s counsel has countered that the discrepancies referred to were minor and that the trial Judge was right so to hold. He accused the Appellant of merely fishing for technicalities in respect of properly evaluated evidence by the trial Judge. The appellate court can only interfere where there is a perverse finding and error in procedural or substantive law occasioning a miscarriage of justice.
The reaction of the trial Court to these allegations of inconsistencies raised by the Appellant’s Counsel in his Written Address is contained at Page 167 – 169 of the Record, as follows:
“In the instant case, although the plaintiff tender (sic) Exhibit 1 titled “Sale of Farmland of Unguwar Maisamari near Malali Kaduna” which reads as follows:
I Alhaji Abdullahi Usman” and Alhaji Mohammed Maidoya all of Badarawa Kaduna have hereby jointly sold our farmland to Air Commondore Umaru Ugah of NDA at the cost of N15,000.00 (Fifteen Thousand Naira only)” learned counsel for the Defendant has argued strenuously that the claim be dismissed because of what he referred to as material contradictions in the evidence of the witnesses called by the plaintiff and the evidence of the plaintiff herself. Although no oral evidence can alter the contents of Exhibit 1, I will nevertheless comment on the alleged contradictions. Although PW6 in his written statement on oath stated that the land was bought by Plaintiff’s husband from Alhaji Maidoya and Abdullahi Usman, under cross-examination by Mr. Manta learned counsel for the Defendant, the witness said the owner of the land was Garba Mohammadu and that he was the only owner of the land. In my view this contradicts the evidence in chief of the witness as shown above. But this cannot change the contents of Exhibit 1. Also the Plaintiff herself under cross-examination claimed that the pillars in their farmland were erected in 2005. She corrected herself and said it was in 1984/1985.
This correction is supported by the evidence PW2 and PW3 under cross-examination to the effect that the pillars were there when they were farming on the land. Also the plaintiff under cross examination said her husband first took her to the land in 2005. But re-examined, she said it in 1985 and not 2005. That is reasonable. The husband who reportedly dien (sic) in 1996 could not have taken her there 2005 after his death. It is clear from the alleged contradictions that these were slips. There is also the issue of who between the PE8 and PW3 introduced the other to the farmland.
In my view all these allege (sic) contradictions do not go to the root of the case which is the purchase or otherwise of the farmland. In the entire arguments of learned counsel for the Defendant, he deliberately withheld his gunpowder against Exhibit 1 or had nothing against Exhibit 1. I myself see nothing against it.”
I cannot fault the reasoning of the lower Court.
while it is agreed that the account of the Respondent is that the original owners of the land are Mohammed Maidoya and Alhaji Abdullahi Usman and that PW6, Tanko Badarawa (also known as Tanko Kaduna Mohammed) under cross examination stated the owner to be Muhammadu Garba, I do agree with the trial Judge that these inconsistencies do not go to the authenticity of the purchase of the land by the Respondent’s husband, which authenticity has been proved by sheer preponderance of evidence.
With regard to the complaint of the Appellant on difference of names, it is a common practice, I note, for people, this part of the world, to be described by their state, village and even their trade. Just as PW6, “Tanko Badarawa”, is also known as “Tanko Mohammed Kaduna”, “Mohammed Maidoya” may also very well be the same as “Muhammadu Garba”. It would therefore be wrong to discredit a witness’ testimony on the ground of difference in name.
Responding to Counsel’s contention before the trial Court of the contradiction of the Respondent, under cross examination, that it was in 2005 that she put the pillars and that her husband took her to the land yet later said that it was in 1984/85, the trial Judge, I note, while agreeing that there was an initial discrepancy in the evidence of the Respondent, noted that the Respondent corrected herself. He also found support for her testimony from the evidence of the other witnesses.
I again find no fault with the reasoning of the trial Judge.
I also find no fault with the decision of the lower Court that the discrepancies did not go to the root of the case, which is the purchase by the Respondent of the farmland and that the Appellant had failed at the trial to discredit the Respondent’s receipt of purchase.
I do not find the findings of the lower Court perverse and resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination is:
“Whether the Respondent is not entitled to Judgment in her favour on the state of the pleadings and evidence before the Court?”
The Appellant’s Counsel has contended that a declaration of title and injunction can only be granted if definite, precise and accurate boundaries are established and that the onus of proof is on the Plaintiff or party who claims the relief. He cited the case of Odunze v Nwosu (2007) 5 SCNJ 234 where the Supreme Court, per Chukwuma-Eneh JSC stated that in the case for a declaration of title, the starting point is satisfying the Court that the Plaintiff by his evidence has established with certainty the land in dispute and its boundaries. This, His Lordship held, has to precede any attempt at delving into other issues in proving the Plaintiff’s entitlement/ownership of the land in dispute.
The Appellant’s counsel has also contended that the Appellant, in his pleadings, having joined issue on the identity of the land claimed by the Respondent, had cast the burden of proof of same on the Respondent and which the Respondent had failed to discharge. In the absence of the sketch plan showing the boundaries, the Respondent cannot be said to have proved the size of the land.
In addition, he argued, the title of the overlord is in dispute because of the discrepancy between the evidence of the Respondent and PW6. A non existing root of title cannot be substituted with acts of possession. The trial Judge was thus in error to have put the Appellant’s case side by side with that of the Respondent instead of considering whether the Respondent had proved title, before turning to the defence.
Counsel to the Respondent, in response, cited the five ways by which title or ownership of land can be proved submitting that the Respondent had produced documents of title, duly authenticated and acts of ownership extending over a sufficient length of time to warrant the inference of ownership, in satisfaction of two of the methods. He submitted that traditional rulers in the area, PW4 and 5 had testified in favour of the sale to the Respondent’s husband. Where two parties make conflicting claims to possession, the law ascribes possession to the person that can prove better title. The positive acts of possession since 1984 by the Respondent coupled with being a bona fide purchaser for value entitled the Respondent to the declaration of equitable interest to the land in dispute.
Furthermore, he contended, where both parties know the land in dispute, the question of its identity will cease to perplex the trial Court.
The case cited by the Appellant’s Counsel of Idundun v Okumagba (1976) 10 NSCC Page 445 at 459, per Fatayi Williams JSC has stipulated the five ways of proving ownership of land, as follows:
i. By traditional evidence;
ii. By the production of documents of title which are duly authenticated;
iii. By the act of selling, leasing, renting of all part of the land or farming on it or on a portion of it;
iv. 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; and
v. By acts of long possession and enjoyment of the land.
It was held in the said case that only one of the ways need be proved.
In the instant case, both sides are claiming ownership of the land in dispute. They both claim through different vendors. The Respondent sought a declaration that she is the equitable owner, an order of injunction and damages for trespass, while the Appellant counter claimed for damages for trespass. Each one claims, as against the other, possession.
The law is clear that where two parties claim possession, the law ascribes possession to one who can show a better title. See Thompson v Arowolo (2003) 7 NWLR Part 818 Page 163 at 208 Para B per Ejiwunmi JSC. See also Iseru v Catholic Bishop of Warri Diocese (1997) 3 NWLR Part 495 Page 577 at 526 Para E per Iguh JSC.
It was also held in the case of Basill v Fajebe (2001) 11 NWLR Part 725 Page 592 at 677 Para C-D per Ayoola JSC that where there is a dispute as to which of two persons is in possession, the presumption is that the person having the title to the land is in possession.
In the instant case, the judgment of the Court, as relate to the question of title, is contained on Page 169- 170 of the Record of Proceedings, as follows:
“In my view all these alleged contradictions do not go to the root of the case which is the purchase or otherwise of the farmland. In the entire arguments of learned counsel for the Defendant, he deliberately withheld his gunpowder against Exhibit 1 or had nothing against Exhibit 1. I myself see nothing against it. In my view the Plaintiff acquired an equitable interest in the farmland by payment of the purchase price as shown by Exhibit 1.”
The evidence of the witnesses called by the plaintiff and the plaintiff herself shows that the plaintiff and her husband took possession of the land immediately. Until 2008 when the Defendant sought to lay claim to it leading to this action.
On his part, the Defendant pleaded in paragraph 7 of his statement of defence that his father purchased the land from its legitimate owners without pleading who these legitimate owners were as the plaintiff pleaded in paragraph 3 of the statement of claim. Therefore the evidence of DW2 and DW3 that the Defendants’ father bought from one Shehu Gada goes to no issue. In any case unlike the plaintiff who tendered a document of sale between her husband and the vendors, the Defendant has not tendered any document of purchase of the land between his father and the said Shehu Gada. In fact under cross-examination, he said he did not have any agreement passed on to him in respect of the sale of the land.
Also in paragraph 9 of the statement of defence, the Defendant averred that it was in 2004 that the plaintiff laid claim to the land. But in his written statement on oath which he adopted the DW1 said it was in 2008 that he was told that the Plaintiff was laying claim to the land.
Surely this is not borne out by the pleadings and should be discountenanced. It is clear that the Defendant has not led any reliable evidence in proof of his counter-claim. In the circumstances, the counterclaim should be dismissed. It is accordingly hereby dismissed.”
From the Judgment reproduced above, the trial Judge, in his summation, found Exhibit 1, the receipt issued to the Respondent’s husband, as proof of the acquisition of equitable interest. He also found in favour of the Respondent on the matter of possession.
On the side of the Appellant, he observed that the Appellant never pleaded from whom his father purchased the land and never tendered any receipt of purchase.
Indeed, in Paragraph 7 of the Appellant’s Statement of Defence, contained on Page 47 of the Record of Proceedings, the bare averment of the Appellant to his vendor is as follows:
Paragraph 7
“The Defendant says that about 25 years ago when his late father purchased the property from its legitimate owners he brought a caterpillar which cleared the piece of land and installed pillars to demarcate the land.”
The entire Statement of Defence, I hold, is bereft of any pleading of the incidents of ownership. The name of his vendor is not stated. The date and manner of purchase is not stated, which are sine qua non in proof of land cases. The evidence of his witnesses of the purchase of the land in dispute by the Appellant’s father from one Shehu Gada, therefore goes to no issue. This is because evidence in support of facts not pleaded goes to no issue and should be discountenanced. See the case of Okoko v Dakolo (2006) 14 NWLR Part 1000 page 407 at 422 Para A per Onu JSC.
It was also held in the case of Vanderpuye v Gbadebo (1998) 3 NWLR (Pt. 541) 271 per Belgore JSC (as he then was) at 279 Para D that where a party departs from the facts pleaded by him and offers evidence on matters not pleaded, that evidence will go to no issue and must be disregarded by the trial court as it had inadvertently received such evidence. This is because cases must be determined only on legally received evidence.
I therefore disregard all evidence by the Appellant’s witnesses with regard to the purchase of the land by the Appellant, the facts upon which this evidence is given, not having been pleaded.
The trial Judge, I therefore hold, was right in his decision that the Respondent had acquired equitable interest in the farmland by payment of the purchase price and that the Appellant had led no “reliable” evidence in proof of his Counter Claim.
Civil cases, as in land cases,, it has been held, must be established by preponderance of evidence. See the case of Adeleke v Iyanda (2001) 13 NWLR (Pt. 729) Page 1 at Page 21-22 Paras H-D per Uwaifo JSC.
It is often enough, His Lordship held, that the Claimant has produced sufficient and satisfactory evidence in support of his claim. The test is whether the Claimant has been able to prove to the satisfaction of the court that he has a better title than the Defendant.
It was held in the case of Provost Lagos State College of Education v Dr. Kolawole Edun (2004) 2 SCNJ Page 156 at 166-167 that lawful possession is attached to a person with a better title as two persons cannot be in possession of land at the same time, one must be a lawful possessor whereas the other is a trespasser and a trespasser does not acquire possession by his act of trespass.
In that case the 1st Respondent had produced a receipt of purchase in proof of payment for the land. The Supreme Court held in that case that the receipt, coupled with effective physical possession of the land in dispute “gave rise to a good equitable interest and/or title to the land in dispute in favour of the Respondent”.
The trial Judge, I accordingly hold, was correct in his decision. All that the Appellant has done in this case is simply to attack the case of the Respondent, without placing any legally admissible evidence on the other side of the scale.
The Respondent, as held by the lower Court, I therefore hold, is entitled to the Judgment granted in her favour on the state of the pleadings and evidence before the Court.
I thus resolve the 2nd issue for determination in favour of the Respondent.
Having resolved both issues for determination in favour of the Respondent and against the Appellant, the appeal against the Judgment of the lower Court fails and is hereby dismissed. I affirm the judgment of the lower Court delivered in Suit No. KDH/KAD/500/2008 delivered on 15th day of May 2009 by Hon. Justice Abiriyi. I award costs of N50,000 in favour of the Respondent.
ABDU ABOKI, J.C.A.: I have the privilege of reading the draft judgment of my learned brother OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, just delivered that this appeal lacks merit. I too accordingly dismissed same.
AMINA AUDI WAMBAI, J.C.A.: I have read in advance the Judgment of my learned brother Oludotun Adebola Adefope-Okojie, JCA.
I agree that the appeal lacks merit and should be dismissed.
I affirm the Judgment of the Lower Court.
Appearances
A. A. Manta Esq,For Appellant
AND
Morris Odeh Esq,For Respondent
