MR. JOSEPH ERO & ANOR v. IYIOLA OLUKAYODE TINUBU
(2012)LCN/5785(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of March, 2012
CA/I/189/08
RATIO
ORDER: PRINCIPLES GUIDING THE AWARD OF COSTS
The position of the law is that costs follow events and a successful party should not be deprived of his costs unless for good reasons. See Seaby v. Olaogun (1999) 10 -12 SC 45 at 59. In F.A. Akinbobola v. Plisson Fasko Nigeria Ltd. & Ors. (1991) 1 NWLR (pt. 167) 270 Kawu JSC said:-
“The award of costs is of course, always at the discretion of the court which discretion must be exercised both judicially and judiciously. Haco Ltd. v. S.M. Daps Brown (1973) 2 SC 149. It is also a well established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons for depriving him of his entitlement. Adenaiye v. Governor in General (1962) 1 SCNLR 442.”
The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation. It is also not meant to be a bonus to the successful party, and not to be awarded on sentiments.
As to whether an appellate court can review costs awarded by the lower court, the Supreme Court in the case of Leonard Okoye & Ors v. Nigeria Construction and Formative Co. Ltd. & Ors. (1991) 6 NWLR (pt. 199)501 per Akpata JSC had this to say:-
“An appeal court has competence to review the costs awarded in the lower or trial court only where the appellant who was the loser in the lower court or trial court succeeds in his appeal. In that event, the costs awarded against him will invariably, of necessity be set aside an order as to costs in the lower or trial court is made in his favour. This is because, the losing party in the court below who wins an appeal is entitled to be indemnified that is, to have his usual remedy in costs in the appeal court and in the court below where he ought to have succeeded in the first Place.”
An appeal court is competent to review the costs where the successful party in the lower court cross-appealed against a part of the judgment and succeeded.”
In another related case of Oyedeji v. Akinyele (2001) FWLR (PT.77) 970 AT 1001 paras A-D the court held that:
“The award of costs is essentially within the discretion must be exercised judicially and judiciously. There are no prescribed tariffs for costs and the scale adapted by courts in fixing, assessing or awarding costs varies with the peculiar circumstances of each case. Some of the circumstances usually considered are the length of time before the final disposal of the case, the out of pocket expenses incurred by the parties and other relevant matters. The fundamental principles is that costs follow events, a successful party should not be deprived of costs, the aim being to indemnify or compensate the successful party for expenses incurred in the course of the litigation. Costs are not meant to punish the unsuccessful party.”
The court further held that:
“The award of costs being a matter within the discretion of the trial court, an appellate court will not normally interfere in the exercise of discretion by the trial court in awarding costs except where it is shown not to have been exercised judicially and judiciously. ” PER ADZIRA GANA MSHELIA, J.C.A.
APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE AWARD OF COSTS MADE BY THE TRIAL COURT
Where the discretion had been exercised in an arbitrary, or illegal manner or without due regard for all necessary considerations or with regard to unnecessary factors or mala fide, the appellate court is entitled to interfere. see Efetiororoje vs. Okpalefe II (1991) 5 NWLR (pt.193) 517. PER ADZIRA GANA MSHELIA, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS EVALUATION OF EVIDENCE
The evaluation of evidence is primarily the function of the trial judge. It is only where and when he fails to evaluate such evidence properly or at all that a Court of Appeal can intervene and itself re-evaluate such evidence, otherwise where the court, of trial has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, the court of Appeal has no business interfering with its finding on such evidence. See Edward Ukaegbu Nwokoro & ors. Vs. Ezekiel Nwosu & Ors. (1994) 4 NWLR (pt. 337) 172, Atolagbe Vs. Sheun (1985) 1 NWLR (pt. 2) 360; Obodo Vs. Ogba (1987) 2 NWLR (pt.54) 1 and Shell BP Vs. Cole (1978) 3 SC 183. PER ADZIRA GANA MSHELIA, J.C.A.
LAND LAW: WHETHER POSSESSION RAISES REBUTTABLE PRESUMPTION OF OWNERSHIP
Possession only raises rebuttable presumption of ownership and cannot, except on pleaded and proven equitable defences, defeat the title of true owner. See Atanda Vs. Ajani (1989) 3 NWLR (pt. 111) 5 111 at 533. PER ADZIRA GANA MSHELIA, J.C.A.
Before Their Lordships
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
MOPUPE FASANMIJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
Between
1. MR. JOSEPH ERO
2. MRS. VICTORIA EROAppellant(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Justice, Ogun State, delivered by Asenuga J. on the 31st March, 2008.
The Respondent was the Plaintiff at the lower court. He claimed in his 2nd amended statement of claim dated the 26th of September, 2007 the following reliefs:-
1. A declaration that the Plaintiff is the person entitled to the statutory Right of occupancy to the land in dispute situate and lying at Arewa close; Akute, Ajuwon, Ifo local Government covered by survey plan No R00/09/23/10/96 dated 04/10/96.
2. N500, 000 (five hundred thousand naira) as general damages against the 1st, 2nd and 3rd Defendants for the trespass.
3. N250, 000 (two hundred and fifty thousand naira) as cost of instituting this action.
4. An order of perpetual injunction restraining the defendant, their servants, agents, privies or howsoever described from further trespassing on the plaintiff’s land.
The Plaintiffs case (now respondent), briefly put, is that sometimes in 1993, he met the 1st Defendant through a cousin and bought the land in dispute for N160,000 (one hundred and sixty thousand naira). The plaintiff bought the land situate at Arewa close, Akute, Ajuwon, Ifo Local Government covered by survey plan No R00/09/23/10/96 dated 04/10/96. For each of the installments, the plaintiff was issued with receipts dated 1st February, 1993, 8th February, 1993 and 15th October, 1996 which were admitted as Exhibit ‘A’, ‘B’ and ‘C’ respectively. It is also the case of the Plaintiff that he paid N65, 000.00 to obtain the family receipt of Ogundimu family. The Plaintiff took possession of the land as virgin land exercised various acts of ownership like fencing, construction and erection of Iron Gate and put the parcel of land under lock and key. The plaintiff surveyed the land in 1996 and got approved building plan prepared by Konsta consult already admitted as Exhibit ‘F’ at the trial court and laid foundation on the land based on the approved building plan. The plaintiff was checking the land until 2003 Local Government Election period when the plaintiff stopped checking and in 2004, the Plaintiff discovered the presence of the Appellants herein on the land with his gate padlock broken.
On enquiry, the plaintiff discovered that the land was sold to the Appellants by Dr. E. A. Enitan and the matter was reported to the Ogundimu family which led to the arrest of 1st Defendant by I. G. Monitoring unit where the 1st Defendant admitted that he had earlier sold to the Respondent before the sale to the Appellants herein.
The Appellants case before the trial court was that they purchased the land in dispute in 2002 as a virgin land from the 1st Defendant an accredited representative of the Ogundimu family. The defendants (appellants) paid the sum N680, 000.00 in three installments as purchase price. The Appellants equally filed and tendered a survey plan Exhibit ‘L’.
Appellants stated that the land purchased from the 1st Defendant was a virgin land, which they cleared of heavy trees before commencement of building. Appellants stated that there was no building foundation whatsoever on the land they purchased and had assurances of the principal members of the Ogundimu family that there was no prior interest on the land. Appellants further stated that in view of the disparities in the description of the land as claimed by both parties, the Appellants’ land at No 6, Arewa close, Olori Quarters, Akute could not be the same as that claimed by the Respondent which was described in the evidence of PW3 to be situated at Baale Akimosi Ota. Appellants also contended that Respondents were aware of the presence of Appellants on the land for close to 5 years as such are caught by the doctrine of laches and acquiescence.
Respondent testified as 2nd plaintiff and called two witnesses. Four witnesses testified for the defence.
At the conclusion of trial, both parties addressed the court. On the 31st March 2008, the trial court entered judgment in favour of the Respondent.
Aggrieved with the decision Appellants lodged an appeal to this court vide their Notice of Appeal filed on 9/4/08 containing seven Grounds of Appeal.
Pursuant to the rules of this court, Appellants brief of argument dated 15th June 2009 was filed on 16th June 2009 but deemed properly filed and served on 18th June 2009 pursuant to order of this court granted on 18/6/09. Respondent’s brief of argument dated 15th July, 2009 was filed on same date. Appellants’ reply brief was filed on 24/9/2009. At the hearing of the Appeal both counsel adopted their respective briefs of argument’ Appellant’s counsel urged the Court to allow the appeal. While Respondent’s counsel urged the court to dismiss the appeal.
Appellants distilled six issues from seven grounds of appeal thus:
(1) Whether the Respondent proved the identity of the land he claimed before the trial court (Ground one).
(2) Whether the Appellants and the Respondents have equal equitable interest over the land in dispute as to warrant the application of the doctrine of priority in favor of the Respondent (Ground Two).
(3) Whether the Appellants were not in lawful possession of the land in dispute. (Ground Three)
(4) Whether the defence of Laches and acquiescence does not avail the Appellant in the circumstances of the case. (Ground Four )
(5) Whether the general damages of N250,000.00 and costs of N100,000 awarded by the trial court in favour of the Respondent were not excessive in the circumstances. (Ground Five)
(6) whether the trail court properly evaluated the evidence of the parties and whether the judgment was not against the weight of evidence in all the circumstances of the case (Ground six and seven) Respondent also distilled six issues for determination of this court.
Respondent appears to have adopted all the issues formulated by the Appellant, so there is no need to set them out as that of Appellants would suffice.
In determining the appeal I will adopt the issues formulated by the Appellants. I will treat the issues serially.
The complaint of the appellants under issue one is as to whether the Respondent proved the identity of the land in dispute. Learned counsel for the Appellants commenced his argument by stating the position of the law relating to proof of identity of land. It is settled principle of law that a Plaintiff claiming a decree of declaration of title to land has the primary duty to unambiguously depict the location, dimensions and identity of the land which he claims. Reliance was placed on Otanma v. Youdubagha (2006) 2 NWLR (pt.964) 337 at 356 paras D-F. The law is also settle that before an order for declaration of title to land could be made the land in question must be ascertained and the boundaries thereof properly described. See Umesie v. Onuaguluchi (1995) 9 NWLR (Pt.421) 515, at 535 paras B-C.
Learned counsel referred to paragraph 5 and 12 of the respondent’s 2nd amended statement of claim at page 2 of the record and submitted that considering the totality of the evidence adduced at the trial respondent did not convincingly ascertain the portion of the land allegedly sold to him in 1993. That Appellants described the land in paragraph 7 of their amended statement of defence as situate at Arewa close, Olori via Akute, Ogun State. That Appellants equally filed a survey plan exhibit ‘L’ and 2nd Appellant as PW1 gave evidence that Appellants, land was about one and one quarter of a plot, thus seriously putting the identity of the land in issue. Counsel submitted that since both parties have joined issues on the identity of the land in dispute, the burden was thrown on the Respondent to clearly and satisfactorily prove that the land he acquired is the same as the land in dispute. See Onwuchekwa v. Ezeogu (2002) 18 NWLR (Pt.779) 333 at 345 paras C-E.
That Respondent failed to call the surveyor who made Exhibit ‘E’ the comprehensive survey plan of the Ogundimu family to throw fight on the features shown in the said survey plan. Learned counsel further contended that the difference between Respondent’s survey plan Exhibit ‘E’ and the Appellants, survey plan Exhibit ‘L’ especially as it relates to size, showed that Respondent totally failed to discharge the burden of proving that the land he claims corresponds with his plan which is fatal to his case. Reliance was placed on the case of Ekpechi v. Owhonda (1998) 3 NWLR (Pt.543) 618 at 638 paras A-D. See also Fashina v. Ogunkayode (2005) 12 NWLR (pt.938) 147 at 172 paras B-G.
Appellants’ counsel further submitted that the failure of the Respondents’ witnesses before the trial court to agree on the precise location of the land which Respondent claims is fatal to his case. He referred to evidence of PW1 and PW2. That PW1 stated in evidence that the land which the Plaintiff bought was at Arewa close, Iju, Ajuwon and Arewa close, Akute, Ajuwon respectively. While PW3 current head of Ogundimu family stated that land sold to the Respondent is situate at Baale Akunosi in Akute. That there was no re-examination to clarify the obvious confusion.
Appellants’ counsel further contended that the Respondent claimed that he built a low fence on the land in dispute, but DW4’s testimony showed that the land which the Appellants occupy at No 6, Arewa close, is surrounded by a fence which forms part of a common fence built around the parcels of land at Arewa close generally by the land agent of the Ogundimu family (1st Defendant). Learned counsel urged the court to dismiss the claim of the Respondent having failed to satisfy the requirement of proving the identity of the land claimed with certainty.
In response Respondent’s counsel commenced his argument as stated in the brief by referring to the case of Idundu v. Okumagba (1976) 7 – 10 SC 27, wherein the supreme court laid down five ways of proving ownership or title to land. See also Atanda v. Ajani (1989) 3 NWLR (pt.111) 511 at 533 paras B-D and 5 – 4b of the Evidence Act.
That the plaintiff need not prove all the five ways before he can succeed in his case. It is sufficient if he successfully establish his right to one of such ways. See Atanda v Ajani (supra).
Learned counsel submitted that both the Appellants and the Respondent bought the same land from the same vendor, the same land situate at Arewa close Akute (see paragraphs 26(a) of the amended statement of claim and paragraph 7 of the amended statement of Defence as contained in pages 2-8 of the record).That Plaintiff /Respondent bought the land in 1993 and completed payment in 1996 with fence and gate on the land, while the Appellants bought the same land with fence and gate erected by the Respondent in 2002, the facts which the 1st Appellant admitted before the trial court. (see page 25 of the record).
It was further submitted that where parties have their pleading contesting the land from the same source, the identity of the land will cease to perplex the courts. Reliance was placed on Adeyori v Adeniran (2001) FWLR (pt.76) 689 at 708 paras D-E. Counsel argued that PW3 the Head of Ogundimu family gave evidence that the land is situate around Baale Akinosi in Akute in the Ifo L.G.A. Reference was made to page 19 of the record. That pw1 gave the identity of the land as that situate at Iju Ajuwon Olori village. PW2 gave the identity of the land as that situate at Olori village, Arewa close Akute. That Appellant gave the identity of the land as that situate at No 6 Arewa close Akute. Learned counsel contended that where the parties by their evidence adduced both orally and documentary, are ad idem on the identity of the land in dispute, the fact that different names are given to the land or the area where the land is located is called by different names is not fatal to the party claiming such land. See Ogbu v. Wokoma (2005) All FWLR (pt.277) 815 at 817; Iyaye v. Egigebi (1987) 3 NWLR (pt.61) 523, and Nwoye v. Bolarin (1991) 4 NWLR (pt.189) 257. That in proving the identity of the land in dispute, the Respondent in paragraph 26(A) of his claims described the land as situate at Arewa close, Akute and led evidence in support and tendered and survey and building plans admitted as exhibits which gave ascertainable identity of land.
Learned counsel further argued that the evidence of DW4 1st Appellant confirmed that the Appellants trespassed on the Respondent land as he gave evidence that he met fence and gate on the land as at the time he bought the land from the 1st Defendant and still described the land as virgin land in both their pleading and evidence. Counsel urged the court to resolve this issue in favour of the Plaintiff/Respondent and hold that the identity of the land is not in dispute.
The first duty of a plaintiff who comes to court to claim a declaration of title is to show the court clearly the area of land to which his claim relates and this can be done by:
(1) Giving such oral description of the land that any surveyor acting on such description can produce such a plan of the land he claims.
(2) Filing a plan reflecting all the features of the land and showing clearly the boundaries.
See Akinolu Baruwa v Ogunsola (1938) 4 WACA 159 and Ate Kwadzo v Robert Kwasi Adijei (1944) 10 WACA 274.
Respondent pleaded the location of the land in dispute in paragraphs 26(a) of the 2nd amended statement of claim at page 4 of the record, as follows;
“A declaration that the Plaintiff is the person entitle to the Statutory Right of Occupancy to the land in dispute situate and lying at Arewa close, Akute Ajuwon, Ifo local Government covered surveyed Plan no R00/OG/23/10/96 dated 04/10/96.”
Respondent adduced both oral and documentary evidence in proof of the identity of the land in dispute. The 1st and 2nd Plaintiff/Respondent’s witnesses described the land categorically to be at Arewa close, Iju Ajuwon, Olori village. The Plaintiff/Respondent in addition to the above, further mentioned Akute in the Ifo local government area of Ogun state.
The 1st and 2nd Defendants on their own part described the land to be at No 6 Arewa close Olori Quarters Akute. The survey plan tendered by both parties i.e. Exhibit E and L also show the land in dispute to be at the same location. The fact that PW3 described the location of the land to be at Baale Akinosi Street Akute is not fatal to his case. As rightly submitted by Respondent’s counsel both the Appellants and Respondent bought the land from the same vendor, the same land situate at Arewa close, Akute, See paragraph 26(a) of the Respondents 2nd amended statement of claim and paragraph 7 of the Appellants statement of defence. From the available evidence it appears parties are clear as to the identity of the land in dispute. Where the parties from the evidence are clear as to the identity of the land in dispute, the fact that different names are given to it or the area it is located cannot affect the case. See Aromire v Anoyemi (1972) 1 All NLR (pt 1) 101 and 113, Makanjuola v. Balogun (1989) 3 NWLR (Pt 108), 192 at 204, and Ogbu v Wokoma (2007) All FWLR (pt.277) 815 at 817. From the oral and documentary evidence adduced before the lower court Respondent had discharged the burden of establishing the identity of the land in dispute.
The finding of the learned trial Judge that the Respondent clearly identified the land he is laying claim to cannot therefore be faulted. I will accordingly resolve issue 1 in favour of the Respondent.
Issue Two is whether the Appellant and the Respondent have the equal equitable interest over the land in dispute as to warrant the application of the doctrine of priority in favour of the Respondent.
Appellants’ counsel submitted that before the doctrine of priority can be invoked in favour of a party as against another, the law is settled that the equity of both parties must be equal in every material particular. Counsel posed the question as to whether the equities of both parties (Appellants and Respondent) can be said to be equal in the circumstances of this appeal. Appellants’ counsel contended that Respondent tendered three purchase receipts issued to him by the 1st Defendant which were neither stamped nor registered. Respondent equally tendered a photocopy of a receipt purportedly issued to him by the Ogundimu family. That the Respondent failed to lead evidence to show that the relevant head of the Ogundimu family at the time he allegedly purchased the land gave his consent to the transaction.
It was contended that PW3 merely testified that he was the head of Ogundimu family. That no evidence was led to show that pW3 was the head of Ogundimu family in 1993 when the Respondent bought the land.
There was also no evidence to show that PW3 signed the photocopied receipt Exhibit ‘G’ as same was not even showed to him for identification.
That Respondent did not make an attempt to show that the transaction between him and the 1st Defendant was ratified by the appropriate head of the Ogundimu family at the time. That DW2 and DW3 gave uncontroverted evidence that PW3 was not the head of the family when the family sold the land to the Appellants but only became family head in 2005.
Learned counsel contended that it is settled that any sale of land without the requisite consent of the family head is void ab initio. Reliance was placed on Odukwe v. Ogunbiyi (1998) 8 NWLR (pt.561) 339 at 351 paras A-C and Ekpendu v. Erika (1959) SCNLR 186 at 188.
The contention of learned counsel is that the sale transaction between the Respondent and the 1st Defendant is void. That Respondent is left with no valid title to displace the Appellants. Counsel argued that Appellants tendered documents and gave evidence to show that they validly purchased the land in dispute from the 1st Defendant with the approval of the head and principal members of the family. That equities of both parties are not equal as such this court is urged to hold that the doctrine of priority has no application in favour of the Respondent in the circumstances of the instant case.
Respondent’s counsel submitted that interest in land must be registered by virtue of section 2 of Land Instrument Registration Law of Ogun State, which upon registration would confer legal interest on holder and failure to register the interest in accordance with the provision of the law will confer equitable interest on the holder of such instrument. Learned counsel submitted that the 1st Defendant sold the same land to both the Appellants and Respondent and were issued with receipts which are a registrable instrument. Both the Appellants and the Respondent did not register their interest in the property which made the equitable interest to be equal.
Counsel submitted that the Respondent bought the land from 1st Defendant in 1993 and completed payment in 1996. He fenced the land, erected a gate thereon, survey the land, obtained an approved plan and commenced foundation before and stopped construction to participate in local government election which saw him emerge as vice-chairman of Oshodi -Isolo LG. It was contended that the Appellants bought the land in 2002 despite the presence of fence and gate thereon from the same 1st Defendant who broke the Respondent padlock, opened the gate and proposed to the Appellants to be engaged as contractor to build the property for them which the Appellants agreed. That it is trite law that where there are two competing interests by two or more persons claiming the same land, from the same vendor as in this case the position both in law and equity is that such competing interests will prima facie rank in order of their creation based on the equitable maxims of Qui prior est tempore est jurs. Reliance was placed on the case of Dughum v Andzenge (2007) All FWLR (pt.385) 499 at 526 para B-C.
Learned counsel submitted that both parties tendered unregistered purchase receipts as document of title making the interest of both Appellants and Respondent an equitable one on the land as held in the case of Ayorinde v. Fayoyin (2001) FWLR (pt.75) 499 at 526 paras B-C. It was further contended that the Appellants’ interest on the land rank after the Respondent as the later bought the land in 1993 and completed payment in 1996 while the former bought the same land with the notice of the Respondent in 2002. That the appellants do not qualify as a purchaser for value having admitted under cross-examination that he met fence and gate on the land at the time of the purchase of the land from the 1st Defendant. Reliance was placed on the case of Chukwuogor v A. G. Cross River State (1989) 1 NWLR (pt 534) 404. Learned counsel urged the court to hold that the application of the priority rule was proper.
It is an established fact from both oral and documentary evidence adduced that both Appellants and Respondent purchased the same plot from the 1st Defendant Exhibits A, B & C tendered by the Plaintiff/Respondent and Exhibit J & K tendered by the 2nd and 3rd Defendants are all purchase receipts showing that money was paid by both parties to the 1st Defendant for the purchase of the land in dispute. As rightly found by the learned trial Judge all the exhibits i.e. receipts are not registered as required by section 2 of the land registration law of Ogun state. The said purchase receipts can only confer equitable interest on the land and not legal title. In Ayorinde v. Fayoyin (2001) FWLR (pt.75) 483, the court of appeal held that:
“An unregistered document which falls within section 2 of the land instrument registration law Ogun State can be admitted in evidence as a receipt or evidence of money transaction. Such document cannot be used to prove title. However, where it is coupled with possession in appropriate cases, it may give rise to equitable interest. ”
It is in evidence that the Respondent bought the land from the 1st Defendant in 1993 and completed payment in 1996. He fenced the land and erected the gate. He also surveyed the land and obtained an approved plan and commenced foundation before he stopped construction to participate in the local government election. It is also in evidence that Appellants bought the same land from the 1st Defendant in 2002. It is clear from the evidence adduced that both Appellants and Respondent have competing interests as both are claiming the same land from the same vendor. The position both in law and equity is that such competing interest will prima facie rank in order of their creation based on the equitable maxims of Qui prior est tempore est jure. See Dughum v. Andzenge (2007) All FWLR (pt.385) 499 at 526 paras B-C. The Applicable maxim in equity is he who is earlier in time is stronger in law. There are several authorities on the point that as between equal equities the first in time shall prevail. See Supreme Court decision in Briggs v C.L.O.R.S.N. (2005) 12 NWLR (pt.938) 59 at 100-103, and Animashaun v. Olojo (1990) 6 NWLR (156) 111 at 114. In Edoso v. Zaccala (2006) All FWLR (pt.306) 881 at 887 ratio 7 the court of appeal held that:
“Where both parties, as in the instant case claim to derive their title to a piece of land from a common grantor, the earlier grant must prevail. This because where everything is regular, he who is first in time has the strongest claim in law. As a rule equitable encumbrances rank according to their dates the first grantee having a better and superior title because he is prior in equity. It therefore follows that as at 10th August, 1993, the 2nd Respondent was divested of his title to the land in dispute. He has nothing left to convey to the 2nd Respondent (SIC). The subsequent purchaser on 13th November 1993. Its law is ne mo dat quad non habit”
Equitable interest coupled with possession is as good as a legal estate. See Ikonne v. Wachuka (1991) 2 NWLR (pt.172) 214 at 228 para C.
Appellants’ complaint is that the Respondent did not show that the transaction between him and the 1st Defendant was ratified by the appropriate head of the Ogundimu family at the time he purchased the land in dispute. It is pertinent at this stage to note the finding of the learned trial Judge at page 4 of the record wherein he said:
“Moreover I believe the evidence of the PLAINTIFF and his wife the 1st PW that they have a foundation pm the land as this was confirmed by the 3rd the head of the Ogumdimu family. I do not believe the evidence of the 3rd and 3rd DW’s that the 3rd PW was not the head of the Ogundimu family in 2002 as their evidence contradicts each other on who the head of the family was in 2002. Moreover, the 3rd PW was not cross examined on when he became the head off the Ogundimu family. The 2nd and 3rd defendant are therefore in illegal possession of the land in dispute.
See the case of Yusuff v Keinsi (2004) V48 WRN 143 at 150 where the Court of Appeal held that:
‘It is trite that only a person on possession of land at the material time can maintain an action for damages for trespass, but when the issue is as to which of the two claimants has a better right to possession or occupation of a piece of land in dispute, the law will ascribe possession and occupation to the person who proves a better title. ”
The plaintiff in this case has proved a better right to possession and is therefore ascribed to him. It is clear from the portion of the judgment reproduced supra that the trial court disbelieved the testimony of 2nd and 3rd DWs, that 3rd PW was not the head of the Ogundimu family in 2002. This piece of evidence touches on the issue of credibility of witness which this court has no power to intefere. The available evidence confirmed that the finding of the trial judge is faultless. The argument of Appellants’ counsel that Respondent did not get the consent of the head of Ogundimu family to ratify the sale of the land to him by the 1st defendant cannot hold water. Respondent has adduced cogent and credible evidence that the sale transaction was valid, same is not void as the Appellants’ counsel would want the court to hold. I found it proved that the equities of both parties are equal over the land in dispute and the learned trial Judge rightly in my humble view concluded that the doctrine of priority is appropriate in the circumstance. Accordingly issue 2 is resolved in favour of the Respondent.
Issue three is whether the Appellants were not in lawful possession of the land in dispute. Appellants’ counsel submitted in the brief of argument that it is trite principle of law that once a party pays the purchase price for land, coupled with immediate and exclusive possession he acquires a strong equitable title and it is only another party who can show a superior title that can displace him. Reliance was placed on Okoye v. Dumez (1985) 11 NWLR (pt.14) 783 and Ogunjumo v. Ademola (1995) 4 NWLR (pt.389) 254 at 265 paras B-E. That Appellants tendered Exhibits J and K which are purchase receipts issued to them by the 1st Defendant and Ogundimu family and have since been in lawful exclusive possession of the land. It was contended that DW2 and DW3 who are principal members of Ogundimu family, also gave evidence confirming the sale by their family to the Appellants. That they acquired good title over the land in dispute and could not therefore be in illegal possession of the land.
In response, Respondents counsel submitted on behalf of the Respondent that the Appellants are not in lawful possession before and after the Judgment of the trial court. DW4 testified that at the time he inspected the land with Dr Enitan the 1st Defendant, he meet fence and gate on the land and still bought the same land. That as at the time the Appellants bought the land from the 1st Defendant, the 1st Defendant does not have the power to sell the property to the Appellants as same would amount to trespass on the Respondent’s land. That the admission of the 1st Appellant that he met fence and gate on the land is enough notice that there is somebody in possession of the land. See Chukwuokgo v. A G. Cross River State (1989) 1 NWLR (pt 534) 404 wherein this court held that:
“A purchaser must be on his guard, for he has no right to remain in ignorance of the fact that what he is buying belongs to someone other than the seller. The maxim is qui ignorare non debit quo jus alienun emit’. Learned counsel submitted that Respondent having paid the purchase price, entered possession by fencing and erecting an iron gate acquired lawful possession to the exclusion of any trespasser, that the Appellants who inspected the land and found the fence and gate on the land could not be a party with superior title that can displace the Respondents. See Okoye v. Dumez (1985) 1 NWLR (pt.4) 783. It was further contended that Appellants in a desperate move to legalize their trespass on the land called two junior members of Ogundimu family to contradict the evidence of the family given by the family head. Both DW2 and DW3 admitted that PW3 is the family head and there was no dispute in the family but that the family head did not take permission before given evidence. It was also pointed out that the date on exhibit K precedes exhibit J which show that the receipts were procured for the purpose of misleading the court. Counsel urged the court to hold that Appellants are not in lawful possession of the land in dispute as such they are not trespassers.
There is clear evidence to show that Respondent was the first to purchase the land in dispute from the 1st Defendant. It has also been established in evidence that as at the time 1st Defendant sold the same land to the Appellants he had nothing to give in respect of the land having regard to the equitable right of the respondent. 1st Defendant cannot give what he did not have. (Nemo dat quod non habet). see Polo v. Ojor (2003) 3 NWLR (pt 807) 344 at 358 and Olosunde v. Oladilo (1991) 4 NWLR (pt.188) 713 at 726. Furthermore DW4 testified that at the time he inspected the land with Dr Enitan the 1st Defendant, he met fence and gate on the land and still bought the same land. Having noticed the presence of fence and gate, it ought to put the Appellants on guard as to whether what they were buying actually belongs to someone other than the seller. Appellants believed the 1st Defendant that it was a common fence erected by the Ogundimu family. That excuse would not avail the Appellants. In Chukwuogor v A. G. Rivers State cited (supra) by Respondent’s counsel the court of Appeal held thus:
“A purchaser must be on his guard; for he has no right to remain in ignorance of the fact that what he is buying belongs to someone other than the seller, the maxim is qui ignorance non debit quo jus alienum emit.”
It is therefore evident that from the oral and documentary evidence adduced before the trial court that Appellants were put in possession of the land in dispute by the 1st Defendant illegally. Their occupation was therefore unlawful. The learned trial Judge was therefore right to hold that Appellants are trespassers. I would accordingly resolve issue 3 against the Appellants.
Appellants’ contention under issue 4 is that the defence of laches and acquiescence does not avail the Respondents. That even if Respondent proved valid title to the land in dispute Respondent is still estopped by the doctrine of laches and acquiescence, from denying the title of the Appellants to the said land. It was submitted that Appellant built their house on the land in dispute between 2003 and 2006 without anybody challenging them. That Respondent knew or at least, had reasonable means of knowing that the Appellants were building on the land. That Respondent could have gotten information through his cousin who resides in Ota or through members of the Ogundimu family, Reliance was placed on Ramseden v Dyson L.R.H.L. 129, 140, 141 and mogaji v. Vuga (1960) SCNLR 219 at 222-223 That defence of laches and acquiescence can be actual or imputed. See Agbara v Amara (1995) 7 NWLR (pt.712) (Pt.410) paras D-E. That for the purpose of sustaining a plea of laches the length of the delay, and the nature of acts done during the interval is relevant. Appellants’ counsel was of the view that since building cannot be done secretly, the three years involved was sufficient time for a diligent owner to discover that a stranger was building on his land and thus assert his right timeously. It is settled principle that equity aids the vigilant. That Respondent having slept on his right if any, for three years and allowed Appellants to expend their resources in developing the land cannot be allowed by equity to assert any right over the said land.
Learned counsel for the Respondent in their brief of argument submitted that the defense of laches and acquiescence cannot avail the Appellants as they knew of Respondent’s interest on the land at the time 1st Appellant inspected and found the gate on the land as admitted by him at the trial court. Learned counsel placed reliance on Kayode v Odutola (2001) FWLR (pt.75) 975 at 989 – 990 paras H-C and contended that none of the listed conditions in Kayode v. Odutola (supra) apply to the claims of the Appellants. 1st appellant admitted that he met fence and gate on the land that is enough conclusions that the Appellants were not under any mistaken belief as to their legal right. That the authorities cited by the appellants are not relevant to this appeal as the appellants are not under any mistaken belief as to their legal rights. That they bought the land with actual notice of interest of another person thereon. That all the conditions stipulated by the Supreme Court in Kayode Vs. Odutola (supra) must be satisfied before the plea can be successfully invoked, by the appellants. It was contended that the doctrine of laches and acquiescence is inapplicable in this appeal and so this court was urged to resolve the issue against the appellant.
It is not in dispute that both the Appellants and Respondent purchased the land in dispute from a common vendor. It is also not in dispute that the sale of land to the Respondent was earlier in time. The evidence adduced by PW1 and PW2 clearly showed that after the sale they fenced the land and put a gate. A foundation was also put in place. DW4 in his evidence stated that he met a fence and a gate on the land in dispute when he was taken to the site by 1st Defendant. It is also in evidence that when the Respondent became aware of the presence of the appellants on the land he reported the matter to Ogundimu family.
Thereafter Respondent instituted the action before the trial court which culminated into this appeal. From the facts and circumstances of this case I entirely agree with the finding of the learned trial Judge that the defence of laches and acquiescence is not available to the appellants. The learned trial judge had this to say at page 4 of the record:
“The 2nd and 3rd Defendants counsel also submitted that the plaintiff is caught by the doctrine of laches and acquiescence. In the case of Adejumo vs Olawaiye (supra) it was held that the defence of laches is not available to a person who knowingly or unlawfully taken possession of land in the possession of another. I already held that the 3rd Defendant met a fence a gate and a foundation on the land in dispute, the defence of laches and acquiescence is therefore not available to him.
Moreover there is no evidence that the plaintiff stood by and watched the Defendant develop the land. According to the Plaintiff he discovered the trespass in 2004 and he filed his action in 2005. In between the period he contacted the Ogundimu family on the issue and he followed the family to the AIGs Office in Abuja to make a case against the 1st Defendant on the issue.”
I find that no laches and acquiescence as known to law was established by the Appellants against the Respondent. The Supreme Court stated the requirements of sustaining the plea of laches and acquiescence in the case of Kayode v. Odutola (2001) FWLR (Pt.75) 975 at 989 – 990 paras H-C. The conditions listed in the case of Kayode v. Odutola (supra) do not apply to the claims of the Appellants, moreso when the 1st Appellant admitted that he met fence and gate on the land is enough conclusion that the Appellants were not under any mistaken belief as to their legal right. The Respondent acted timeously and cannot be said that he slept on his right. In the circumstance I will resolve issue 4 in favour of the Respondent.
Issue 5 is whether the general damages of N250,000.00 and cost of N100,000.00 award by the trial court in favour of the Respondent was not excessive in the circumstances.
Learned counsel submitted on behalf of the Appellants that as a general rule, an appeal court should not interfere with award of damages by a trial court, but an appeal court is entitled to do so where the circumstances calling for such interference is shown to the court. See UBN v. Odusote … (1995) 9 NWLR (pt.42) 558 at 586, paras E-G. It was contended that the award of N250,000.00 and costs of N100,000.00 as general damages for trespass are excessive, and punitive in all the circumstances of the case. That appellants have been able to show that they validly purchased the land in dispute from the 1st Defendant with the consent of head and principal members of the Ogindimu family. Appellants further contended that Respondent did not acquire a valid title to the land in dispute, and an act of possession which he pleaded was not shown to be in respect of the land in dispute. That Respondent cannot effectively maintain action in trespass against the Appellants. Learned counsel urged the court to set aside the award of N250,000.00 damages and costs of N100,000.100 made by that court as same rests on nothing.
On the part of the Respondent it was submitted that the issue of cost is at the discretion of the trial court and an appellate court would not interfere. Reliance was placed on Oyedeji v. Akinyele (2001) FWLR (pt.177) 970 at 1001 paras A-D. It was submitted that the Respondent paid N250,000.00 to his lawyer to initiate the trial at the court below, N350,000.00 for this appeal all to restrain the continuous trespass of the Appellants. That Respondent was denied access to his property for six years as a result of the appellants trespass and despite various acts of ownership exercised by the Respondent by fencing and erection of gate there.
Generally the trial court has discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not depend on any legal rules but the discretion of the court is however limited by usual caution or prudence and remoteness of damage when considering its award of damages. An Appellate Court will not interfere with an award of damages by a trial court unless in situation which includes:-
(a) Where the court acted under wrong principles of law.
(b) Where the court acted in disregard of applicable principle of law.
(c) Where the court acted in misapprehension of facts.
(d) Where the court took into consideration irrelevant matters and disregarded relevant matters whilst considering its ward.
(e) Where injustice will result if the appellate court does not act.
(f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of damages see Oyeroyin v. Akinkugbe 41 NSC CR 416 at 442, UBN Vs. Odusote Bookstores Ltd. (1995) 1 NWLR (pt.421) 538; Solanke v. Ajibola 91969) 1 NWLR 45 and ACB Ltd. v. Apugo (2001) 5 NWLR (pt.707) 653.
It is my humble view that appellants have failed to show that the award of N250,000.00 as damages granted by the trial court is affected by any of the above mentioned factors. Respondent was deprived access to his property for six years and appellants also constructed building on the land. The amount in my humble view is not excessive. The learned trial judge exercised his discretion judicially and judiciously in the given circumstances. This court has no reason to interfere.
The next point to resolve is whether the award of N100,000.00 as costs is excessive. The position of the law is that costs follow events and a successful party should not be deprived of his costs unless for good reasons. See Seaby v. Olaogun (1999) 10 -12 SC 45 at 59. In F.A. Akinbobola v. Plisson Fasko Nigeria Ltd. & Ors. (1991) 1 NWLR (pt. 167) 270 Kawu JSC said:-
“The award of costs is of course, always at the discretion of the court which discretion must be exercised both judicially and judiciously. Haco Ltd. v. S.M. Daps Brown (1973) 2 SC 149. It is also a well established principle that costs follow events and that a successful party is entitled to cost unless there are special reasons for depriving him of his entitlement. Adenaiye v. Governor in General (1962) 1 SCNLR 442.”
The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation. It is also not meant to be a bonus to the successful party, and not to be awarded on sentiments.
As to whether an appellate court can review costs awarded by the lower court, the Supreme Court in the case of Leonard Okoye & Ors v. Nigeria Construction and Formative Co. Ltd. & Ors. (1991) 6 NWLR (pt. 199)501 per Akpata JSC had this to say:-
“An appeal court has competence to review the costs awarded in the lower or trial court only where the appellant who was the loser in the lower court or trial court succeeds in his appeal. In that event, the costs awarded against him will invariably, of necessity be set aside an order as to costs in the lower or trial court is made in his favour. This is because, the losing party in the court below who wins an appeal is entitled to be indemnified that is, to have his usual remedy in costs in the appeal court and in the court below where he ought to have succeeded in the first Place.”
An appeal court is competent to review the costs where the successful party in the lower court cross-appealed against a part of the judgment and succeeded.”
In another related case of Oyedeji v. Akinyele (2001) FWLR (PT.77) 970 AT 1001 paras A-D the court held that:
“The award of costs is essentially within the discretion must be exercised judicially and judiciously. There are no prescribed tariffs for costs and the scale adapted by courts in fixing, assessing or awarding costs varies with the peculiar circumstances of each case. Some of the circumstances usually considered are the length of time before the final disposal of the case, the out of pocket expenses incurred by the parties and other relevant matters. The fundamental principles is that costs follow events, a successful party should not be deprived of costs, the aim being to indemnify or compensate the successful party for expenses incurred in the course of the litigation. Costs are not meant to punish the unsuccessful party.”
The court further held that:
“The award of costs being a matter within the discretion of the trial court, an appellate court will not normally interfere in the exercise of discretion by the trial court in awarding costs except where it is shown not to have been exercised judicially and judiciously. ”
Where the discretion had been exercised in an arbitrary, or illegal manner or without due regard for all necessary considerations or with regard to unnecessary factors or mala fide, the appellate court is entitled to interfere. see Efetiororoje vs. Okpalefe II (1991) 5 NWLR (pt.193) 517. In the instant case the complaint of the appellants is that the amount of N100,000.00 awarded as costs is punitive. It is common knowledge that litigants incurred expenses in terms of filing fees and money for services of court processes as well as lawyer’s fees. It is my considered view that the amount awarded is not punitive.
Having regard to the circumstances, I am satisfied that the learned trial judge exercised this discretion judicially and judiciously. This court cannot in the circumstances interfere with the award granted by the trial court. Issue 5 is therefore resolved in favour of the Respondents.
The complaint of the appellant under the issue 6 relates to evaluation of the evidence of parties and whether the judgment was not against the weight of evidence in all the circumstances of the case.
Appellants referred to the judgment of the trial court wherein it held that it disbelieved the evidence of DW2 and DW3 on who was the head of the Ogundimu family in 2002. Learned counsel also referred to the testimony of DW2 and DW3. DW2 testified that the name of Ogundimu family in 2002 was Osu Opebiyi who died in 2004 and PW3 became head of the family in 2005. DW3 stated that the head of the family in 2002 was Osu Agbebi who died in 2004 while PW3 became head in 2005. That PW3 was not the head of the family at the time. It was contended that the little differences in the testimony of DW2 and DW3 is not fatal to the Appellants case. Reliance was placed on Onwie v. Ighiwi (2005) 15 NWLR (pt.917) 184; Broad line Enterprises Ltd v. Monterey Maritime Corp (1995) 9 NWLR (pt.417) 1 at 27 para B-C 44 para 4. Learned counsel submitted that the evidence of DW2 and DW3 was never challenged under cross-examination and there was nothing before the court to suggest that the names of Osu Opebiyi and Osu Agbebi referred to different persons, moreso as both witnesses were in agreement on the year he died. That the failure of the learned trial judge to accept the evidence of DW2 and DW3 as shown above substantially affected the outcome of the case. That had the trial court not erroneously rejected that relevant piece of uncontradicted evidence, it would have found that the Respondent did not get the approval of the appropriate head of the family at the material time. He urges the court to reverse the decision of the trial court.
Reference was also made to paragraph 19 of the amended statement of defence. Appellants averred that the fence they met on the land in dispute was a common fence built around the plots of land in the area by the 1st Defendant to enhance the value of the said plots. That this fact was equally restated by DW4 in his evidence, see page 25 of the record. It was contended that the statement of the 1st Appellant on the issue of fence was taken out of con and the trial court equally misconstrued same as an admission which inevitably resulted in a miscarriage of justice against the appellants. He urged the court to set aside the finding.
Respondent contended that the trial court before arriving at the judgment evaluated the evidence of DW2, DW3 and PW3. Members and Head of Ogundimu family as well as the documents tendered by both parties. It was submitted that DW2 and DW3 admitted that PW3 is the Head of Ogundimu family. They also admitted that there was no dispute in the Ogundimu family before and during the time of giving evidence in this matter. That they came to give contrary evidence to what the family Head had given because the family head did not inform the family before testifying in this case.
It was further argued that the court was confronted with the contradictions in the evidence of DW2 and DW3 as to the name of former family head before the incumbent. That the court properly evaluated the evidence of PW3, family head and principal members who according to them came to give evidence against the family on the ground that they are chiefs in the family and had no family authority to do so. That the trial court evaluated both oral and documentary evidence adduced before it.
That DW2 and DW3 are tainted witnesses who were paid to give evidence against their family after admitting that there is no dispute in Ogundimu family. It was further submitted that by paragraph 12 of the statement of Defence of the appellants it was admitted that the appellants engaged the 1st Defendant to build the property for them despite the foundation already laid by the Respondent. Respondent urged the court to hold that the trial judge properly evaluated the evidence and affirm the judgment of the trial court.
The evaluation of evidence is primarily the function of the trial judge. It is only where and when he fails to evaluate such evidence properly or at all that a Court of Appeal can intervene and itself re-evaluate such evidence, otherwise where the court, of trial has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, the court of Appeal has no business interfering with its finding on such evidence. See Edward Ukaegbu Nwokoro & ors. Vs. Ezekiel Nwosu & Ors. (1994) 4 NWLR (pt. 337) 172, Atolagbe Vs. Sheun (1985) 1 NWLR (pt. 2) 360; Obodo Vs. Ogba (1987) 2 NWLR (pt.54) 1 and Shell BP Vs. Cole (1978) 3 SC 183. In the instant case Appellants’ complaint is that the trial court did not properly evaluate the evidence adduced with particular reference to the testimony of DW2 and DW3. This court is in a position to re-evaluate the evidence where it does not involve the credibility of witnesses.
While evaluating the oral and documentary evidence adduced by parties the learned trial judge identified certain facts agreed by parties as follows:- .
1. The identity of the land.
2. Parties bought from the same vendor.
3. The said land is the land of Ogundimu family.
The learned trial judge examined exhibit A, B and C tendered by the plaintiff and Exhibit J and K tendered by the 2nd and 3rd Defendants and found as a fact that all the purchase receipts showed that money was paid by both parties to the 1st Defendant for the purchase of the land in dispute.
All the exhibits are not registered thus conferring equitable interest on the land on both Parties.
There is evidence before the court that plaintiff/Respondent paid the 1st instalment for the purchase of the land in 1993 and he completed payment in 1996. The Defendants/Appellants did not purchase the land until 2002. As between equal equities the first in time shall prevail. See Edosa v. Zaccala (2006) All FWLR (pt.306) 881 at 887 ratio 7.
The learned trial judge concluded that since the plaintiffs claim over the land in dispute was first to be created same therefore prevails. The claim of the appellants that they were in possession of the land was considered by the learned trial judge. The testimony of the 1st Appellant showed that as at the time he went to inspect the land, he saw the land was fenced and a gate put in place. This confirmed the testimony of PW2 appearing at page 10 of the record.
PW2 stated thus:-
“Immediately we completed payment in 1996, my wife and I put up a fence on the land, there was a building to the right of the land it was occupied and fully fenced, to the left was another building yet to be completed, the owner had done a low fence. All I had to do was to fence the front fully and the back I also partially raise the fence that I met on the left hoping that the owner will complete it. I put a long black gate and pad locked it. I erected a guard post to lintel level. We started the foundation as per the plan we had done.”
PW1 confirmed this piece of evidence in her testimony before the court. The learned trial judge after evaluating the oral and documentary evidence adduced, believed PW1 and PW2 that they constructed fence and gate was also put in place. A foundation of the building was also commenced on the land in dispute. The learned trial judge concluded that to Appellant was in illegal possession since as at the time he purchased the land he saw the fence and gate, yet he purchased the piece of land. The presence of the fence and gate ought to have given 1st Appellant signal that someone else had already purchased the land in dispute. Possession only raises rebuttable presumption of ownership and cannot, except on pleaded and proven equitable defences, defeat the title of true owner. See Atanda Vs. Ajani (1989) 3 NWLR (pt. 111) 5 111 at 533.
Respondents equity was first in time so he had a better title than that of the Appellants. The law will ascribe possession and occupation to the person who proves a better title to the land in dispute. See Yusuff Vs. Keinsi (2004) Vol 48 WRN 143 at 150. Appellants could not prove better title because as at the time they purchased the land from the 1st Defendant he no longer had valid title to pass since the same piece of land was earlier sold to the Respondent. Appellants also failed to prove that defence of laches and acquiescence is available to them.
The complaint of the Appellants that the evidence of DW2 and DW3 was not properly evaluated is unfounded. I wish to note the finding of the learned trial judge at page 40 of the record wherein he said:-
“I do not believe the evidence of the 2nd and 3rd DW’s that the 3rd PW was not the head of the Ogundimu family in 2002 as their evidence contradicts each other on who the head of the family was in 2002. Moreover the pw3 was not cross-examined on when he became the head of the Ogundimu family. The 2nd and 3rd Defendant are therefore in illegal possession of the land in dispute.”
The testimonies of DW2 and DW3 appeared at pages 18 and 19 of the record. It is my humble view that the finding of the learned trial judge is supported by evidence. The trial judge rightly treated the evidence of DW2 and DW3 with caution since as chiefs they failed to give the correct name of the former Head of the Ogundimu family. Moreso when they stated under cross-examination that they went to testify because PW3 as head of family did not inform the Ogundimu family before testifying in the case. The trial judge had the advantage of seeing and hearing the witnesses testify in the witness box and formed his opinion as to their credibility.
Having gone’ through the pleadings, oral and documentary evidence adduced before the trial court, I am satisfied that the learned trial judge did assessed and properly evaluated the evidence adduced by parties contrary to the contention of the Appellants. I will similarly resolve issue 6 in favour of the Respondent.
From the totality of the evidence adduced by parties, it is my considered view that Respondent discharged the onus of proof placed on him by law and the trial court rightly entered judgment in his favour. The findings are not perverse as such this court cannot interfere.
In the result, I hold this appeal lacks merit and it fails. Appeal dismissed. The judgment of the High Court of Justice Ogun State delivered on the 31st day of March, 2008 by Asenuga, J. is hereby affirmed. Parties to bear their own costs.
MODUPE FASANMI, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother Mshelia J.C.A.
She has meticulously analysed the facts and circumstances of the case in the lead judgment. The reasoning and conclusion are unassilable.
The appeal lacks merit. I too dismiss the appeal and affirm the decision of the lower Court. I abide by the order made on costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the comprehensive judgment of my learned brother, Mshelia, J.C.A., in which I concur.
The court below found as a fact that the appellants and the respondent bought the disputed piece of land from the same vendor. The latter completed payment for the dispute piece of land in 1996, while the former paid for it in 2002. The respondent was therefore earlier in time and prevails over the appellants who took subject to the respondent’s prior title – see Ugbo and Others v. Aburime (1994) 8 NWLR (Pt.360) 1 at 19 thus-
“At law, as in equity, the basic principle is that estates and interests primarily rank in the order of creation. The maxim is Qui prior est tempore potior est jure which literarily means he who is earlier in time is stronger in law. See Barclays bank Ltd. v. Bird (1954) Ch. 274 at 280. This principle however is applicable where the equities are equal.”
It is for these reasons and the fuller reasons given in the judgment of my learned brother, Mshelia, J.C.A., that I too see no merit in the appeal and hereby dismiss it without costs.
Appearances
Oluwale KehindeFor Appellant
AND
S. O. OkuchemiyaFor Respondent
