MR. OKE OJO OYEDELE v. MR. MICHAEL ODUMOSU (2016)

MR. OKE OJO OYEDELE v. MR. MICHAEL ODUMOSU

(2016)LCN/8145(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of January, 2016

CA/I/320/2014

RATIO

LAND LAW: TITLE TO LAND; WHETHER IT IS COMMON OCCURRENCE IN LAND DISPUTE FOR PARTIES TO REFER TO THE SAME PIECE OF LAND BY DIFFERENT NAMES

I think it is appropriate to say that it is common occurrence in land matters for parties to refer to the same piece of land by different names and also to indicate in their respective plans, different features, but the bottom line remains the fact that the parties know the land in dispute.
See BOSINDE AYUYA & 4 ORS VS CHIEF NAGHAN YONRIN & 3 ORS (2011) 4 SC 1; CHIEF BABALOLA VS. OBA ALADEJANA (2001) 6 SC 124. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: PROOF OF TITLE TO LAND; WHETHER IN THE CLAIM FOR THE DECLARATION OF TITLE THE CLAIMANT HAS TO SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT THE WEAKNESS OF THE DEFENCE

In such a claim the onus is on the Claimant to show that she/he was entitled to the declaration which was sought. He has to succeed on the strength of his own case and not on the weakness of the defence. See KODILINYE VS. ODU 2 WACA 136: ARE VS. IPAYE (1990) 2 NWLR (PT. 132) 298 AND UMEOJIAKO VS EZENAMO (1990) 1 NWLR (PT 126) 253. According to the decision in EJIKE VS. UNUKOGU (2005) 6 SCM 196 in a claim for declaration of title to land a consideration of the defendant’s case does not arise until the plaintiff had led evidence showing prima facie that he or she had a title to the land. It is indubitable that on a proper direction, in the instant appeal, it is the Respondent who claimed a declaration of title who should prove exclusive possession; whereas for the Defendant/Appellant, if he can show that he is in lawful and peaceful possession of land or adverse possession of it for a long time, that would be enough to defeat the claimant’s title. This necessarily points in the direction of shifting of the burden of proof to the Defendant/Counter-claimant/Appellant at some stage of the proceedings at the trial. See SAKA OWOADE VS. JOHN A. OMITOLA & 2 ORS. (1988) 5 SC 1. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

LAND LAW: TITLE TO LAND; THE QUESTIONS THE COURT MUST INQUIRE INTO WHEN A PARTY PRODUCES AND RELIES ON A DOCUMENT OF TITLE

A document of title does not automatically entitle a party armed with it, to ownership of a land. A party’s production and reliance on such an instrument inevitably, carries with it the necessity for the Court to inquire into some number of questions viz:-
(i) Whether the document is genuine and valid
(ii) Whether it has been duly executed, stamped and registered;
(iii) Whether the grantor had the authority and capacity to make the grant;
(iv) Whether the grantor had in fact what he purported to grant; and
(v) Whether it has the effect claimed by its holder.
See AGBOOLA VS UBA PLC (2011) ALL FWLR (PT 574) 74, DABO VS ABDULLAHI (2005) 7 NWLR (PT 923) 181; KYARI VS ALKALI (2001) 11 NWLR (PT 724) 412; AYANWALE VS ODUSANMI (2011) 11 NWLR (Pt 1278) 328 and OLANIYAN VS FATOKI (2013) 17 NWLR (Pt 1384) 477. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER A CERTIFICATE OF OCCUPANCY IS A CONCLUSIVE PROOF OF OWNERSHIP

The law is well defined that a Certificate of Occupancy is not a conclusive proof of ownership. It is a mere presumption of prime facie ownership and possession by its holder why presumption is rebuttable. See TENIOLA VS OLOHUNKUN (1999) 5 NWLR (PT 602) 280, MADU V MADU (2008) ALL FWLR (Pt 414) 1604; DABUP VS KOLO (1993) 9 NWLR (PT 317) 254; OLAGUNJU VS ADESOYE (2009) 9 NWLR (PT 1146) 225 ADOLE VS GWAR (2008) ALL FWLR (Pt 423) 1217; AGBOOLA VS U.B.A. PLC (Supra) AND TUKPO VS JOHN (2012) 7 NWLR (Pt. 1299) 357. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

MR. OKE OJO OYEDELE Appellant(s)

AND

MR. MICHAEL ODUMOSU Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court delivered on 10th January, 2014 in suit No. HLC/4/2011. The Respondent herein was the claimant before the High Court of Ogun State.

By Paragraph 13 of the Amended statement of Claim dated 28/5/12 that filed on 30/05/2012, the claimant sought against the defendant, Appellant herein as follows:-
“19(1) A Declaration that the Claimant is entitled to confirmation of the statutory right of Occupancy already granted by Ogun State Government to all that parcel of land situate, lying at being at Idi-Iroko, Ogun State containing an area of about 7 hectares and more particularly delineated and shown on survey Plan No. SWE/2479/4 drawn by Surveyor Soweje (Licenced Surveyor) annexed to both Certificates of Occupancy in Volume 340 and 342 of Land Registry at Abeokuta Ogun State and dated 3rd of August, 1985.
(ii) An order, setting aside the purported sales transfer and/or alienation of any part of the Claimant?s land to any person and/or group of person by the defendant.
(iii) The

Claimant?s claim as special damages the sum of N2,000,000.00 (Two Million Naira only) from the defendant of the destruction and damages of the Claimant?s land.
(iv) An order of perpetual injunction restraining the defendant and his thugs from tampering, alienating, entering, altering and/or doing anything whatsoever with the Claimant?s parcel of land situate, lying and being at Idi-Iroko Ogun State containing area about 7 Hectares and more particularly delineated and shown on Survey Plan No. SEW/2479/4 drawn by Surveyor Soweje (Licensed Surveyor) annexed both Certificate of Occupancy in volume 340 and 342 of the Land Registry at Abeokuta, Ogun State and dated 3/8/1985.”

Against this claim the Defendant/Appellant filed a statement of defence and further counter-claim as follows:-
“a) Declaration that all that land covered by Certificate of Occupancy No. 0001131 and 00011090 both of 3rd August, 2010 wrongly and unlawfully issued in favour of the Claimant is property of the defendant family.
b) An Order of Court declaring the purported sale of land to the claimants as null and void.
c) An order of Court setting aside the

two Certificates of Occupancy wrongly and unlawfully issued to the Claimant.
d) Perpetual injunction restraining the Claimant, her agents, privies or servants from further interfering with or trespassing into the land in dispute.”

Issues having been duly joined, the matter proceeded to trial after a pre-trial conference. At the trial, each of the parties was led by counsel to render oral evidence and tender documents in support of their respective cases. At the end of the evidence of the parties, respective learned counsel were ordered to file and exchange written addresses. And after the adoption of the written addresses, the learned trial judge delivered his judgment in which he found in favour of the claimant/Respondent. His Lordship of the trial Court went on to order that:-
?1. I declare that the claimant is entitled to the statutory right of occupancy already granted by Ogun State Government to all that parcel of land situate, lying and being at ldi-Iroko, Ogun State containing an area of about 7 hectares and more particularly delineated and shown on Survey plan No., SEW/2479/4 drawn by Surveyor, Soweje, (Licensed Surveyor)

annexed both Certificate of Occupancy in Volume 340 and 342 of the Land Registry at Abeokuta, Ogun State and dated 3/8/1985.
2. The purported sales transfer and/or alienation of any part of the Claimant?s land to any person and/or group of person by the defendant is hereby set aside.
3. The Claimant?s claim for special damages fails and is accordingly dismissed.
4. The defendant and his thugs are hereby restrained from tampering, alienating, entering, altering and/or doing anything whatsoever with the Claimant?s parcel of land situate, lying and being at Idi-Iroko, Ogun State containing area about 7 hectares and more particularly delineated and shown on Survey plan No. SWE/2479/4 drawn by Surveyor Soweje (Licensed Surveyor) annexed both Certificate of Occupancy in Volume 340 and 342 of the Land Registry at Abeokuta, Ogun State and dated 3/8/1985.
For the fore going, I hold that the counter-claims of the defendant lack merit. The counter-claims are hereby dismissed.?

The Defendant/Counter Claimant/Appellant was dissatisfied with the decision of the learned trial judge. He appealed to this Court in a notice of

appeal filed on 08/04/2014. It contains 6 grounds of appeal. They are:-
“GROUND ONE
The learned trial judge erred in law when he held that the defendant/Counter Claimant failed to prove that there was a lease of the land in dispute to the Claimant thereby shifting the burden.
Particulars of Error
1. It is the Claimant who is claiming that the defendant?s family have sold the land that should establish the sale by credible evidence.
2. Declaration is never granted based on default of evidence and the case of the Claimant cannot succeed simply because the defendant?s case is weak.
GROUND TWO
The learned trial judge erred in law when he failed to properly construe the Deed of Conveyance tendered by the Claimant in proof of the root of title of the Claimant.
Particulars of Error
1. The Document ought to have been used as hanger to assess the oral evidence led to establish the sale and not otherwise.
2. The deed of conveyance established beyond doubts that the Claimant bought the land from persons? family otherwise than the Oyedele Odunfa family.
3. The Claimant in his pleadings and evidence

however admitted that the radical title in the land resides in the Oyedele Odunfa family.
4. The learned trial judge should have on this score alone dismissed the Claimant?s claim.
GROUND THREE
The learned Trial judge erred in Law when he held that the defendant?s family have on the evidence led before the Court sold the land to the Claimant.
Particulars of Error
1. The defendant claimed through the Oyedele branch of Odunfa family.
2. The Claimant agreed that the land belongs to that branch of the Odunfa family.
3. The Conveyance which the Claimant relied upon as the root of title was not executed by the Oyedele branch of Odunfa family by another family as shown by the recital in the conveyance.
4. The decision of the learned Judge was not therefore based on the evidence before the Court.
GROUND FOUR
The learned trial judge erred in law in dismissing the defendant counter claim when it was sufficiently proved.
Particulars of Error
1. The defendant led evidence of the traditional history of his title and that of the Oyedele branch of the Odunfa family through whom he claimed.
2. The

Claimant defendant in the counter claim did not file any defence to the counter claim and therefore did not join issues with the defendant in respect of the counter-claim.
3. The Claimant in the statement of claim already conceded original title in the land to the defendant/Counter claimant and also led evidence on this point and this supporting the case as set up in the counter claim.
4. The Claimant upon admitting that original title resides in the defendant?s family have the burden of proof shifted to the Claimant to establish that the family has divested itself of title in the land in favour of the Claimant.
GROUND FIVE
The learned trial judge erred in law in granting the 1st, 2nd and 4th leg of the claimant?s claim when the Claimant woefully failed to prove the entitlement therein.
Particulars
1. The Claimant relied on the production of document in proof of his title vide the Deed of Conveyance tendered.
2. The Claimant neither pleaded nor gave evidence as to the root of title of the vendors in the said Conveyance relied upon.
3. The Claimant contrary to the recital and the contents of the Conveyance

pleaded and led evidence that the land belonged to the Oyedele branch of Odunfa?s family.
4. The learned trial Judge elected to close eyes to this disconnect in the Claimant?s case and granted the claim instead of dismissing the claim.
5. Once the Claimant failed in establishing the root of title then all evidence of acts of Possession and ownership led becomes acts of trespass.
GROUND SIX
The learned trial judge erred in law when he granted the Claimant?s claim to the entire land claimed.
Particulars of Error
1. The claimant did not plead or lead any evidence of a sale under native law and custom.
2. The claimant merely pleaded and tendered a Conveyance of the land purchased.
3. The size of the land purportedly sold to the claimant vide the Deed of Conveyance is smaller than the land in respect of which the Claimant was issued a Certificate of Occupancy and in respect of which the learned trial Judge granted Declaration of title and injunction.
4. The learned trial judge therefore awarded to the Claimant more than what was proved to be due to the Claimant.”

?To argue the appeal, learned counsel

to the Appellant, Mr. Ayodele A. Omoniyi filed a brief of argument on 04/03/2015. On behalf of the Respondent, Mr. Ore M. Abdullahi also filed a brief of argument on 26/03/2015. According to the Appellant?s brief of argument there are 2 issues for determination in this appeal. He proceeded to identify them thus:-
(a) Whether there was sufficient legally admissible evidence to warrant the grant of leg (a), (b) and (d) of the claimant?s claim. (Grounds 2, 3, 5 and 6)
(b) Whether the Counter-claim was not sufficiently proved. (Grounds 1 and 4)

Learned counsel to the Respondent, though without specifically saying so, would appear to have adopted the 2 issues formulated and argued on behalf of the Appellant.

At the hearing of the appeal before us, respective learned counsel each identified, introduced, adopted and relied on their briefs. While learned counsel Mr. Omoniyi, on behalf of the Appellant, urged on us to allow the appeal and thereafter set aside the judgment of the lower Court, learned counsel Mr. Abdullahi on behalf of the Respondent, urged on us to dismiss the appeal and affirm the judgment of the trial Court.<br< p=””

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Before I go into the issues for determination, I wish to underscore some of the key facts and incidences that led to the commencement of this action. This action was commenced by a 78 year old woman called Otunba Adeyinka Christianan Osijo. As part of her claim, supported by the written statement she filed in Court, she claimed that she was the owner of a vast area of land covered by 2 Certificates of Occupancy, numbers 0011131 and 00011090 dated 3rd of August 1985 and registered as No. 9 at page 9 volume 340 Land Registry, Abeokuta, Ogun State, she also claimed to have bought the land in dispute bit by bit as she was getting the money within a period spanning several years but commencing February 1978 from Oyedele Odunfa family who she claimed owned vast area of land at Idi-Iroko, Ogun State.

According to Otunba Osijo, she retained the services of a registered Surveyor to produce a Survey Plan of the land she acquired. Sequel to that Survey plan No. SEW/W/2479/4 dated 29th October, 1983, demarcating the land into 4 parcels as A, B, C & D was handed over to her. Also, according to her, upon being put in possession, commenced to exercise various and

diverse acts of, unchallenged ownership of the surveyed land. She claimed to have reared animals and planted both cash and food crops and later fenced the land with cement blocks. Against this scenario, she saw good reasons to apply to the Ogun State Government for C of O and same was granted to her, she believed without any objection whatsoever. However, during the year 2011 when she visited the land, she discovered that some unknown person(s) had come upon it and cleared some portion of it, had dug a foundation as well as started some construction activities. She later discovered that it was the Defendant/Appellant that had come on the land.

The Defendant/Appellant, of course denied all the claims of Otunba Osijo. He claimed that the land in dispute had been subjected to customary law and any purported sale of any part of it to any person was a nullity. He also maintained that the Oyedele Odunfa family had no power over the land and did not at any time sell any part of what she claimed. The Defendant/Appellant claimed to be a descendant of Akinlolu who was a farmer and hunter and was the one who founded the land after he left Oyo many years ago. He

added that the said Akinlolu was directed by Ifa Oracle to move far away from his fatherland to a destination named to him or for him to find out later or as may later be communicated specially to him by that Oracle. He finally settled at Ikolaje in Idi-Iroko where he begat 4 children, a male and 3 females. The Appellant further claimed that Akinlolu was the first to settle on the land along with his 4 children and also further extended his farming activities to Oke-Koto up to the boundary of Nigeria and Benin Republic where he also married and begat more children. He gave a historical background of all these events and traced what he claimed to be his relationship to Akinlolu. He also confirmed with a narration on how parts of the land was partitioned to various branches of the extended family, including his own family and finally how he inherited the land in dispute.

The claimant died during the pendency of this action. By leave of Court granted on May, 2013, she was substituted by Mr. Michael O. Odumosu, the present Respondent.

In arguing his first issue, the learned counsel Mr. Omoniyi for the Appellant began by explaining that the law is well

defined and settled and is not in doubt that it is the claimant who deserves the Court to declare him entitled to a relief that bears the burden of establishing his entitlement thereto. He then went on to refer to the decisions in LIGALI VS OLOWOLAGBA (1996) 12 SCNJ 95, NKABATSE VS. OPUYE (2010) 14 NWLR (PT 1213) 59 AT 62 AND KODILINYE VS ODU (1935) 2 WACA 336 to explain further that a claimant cannot generally be relieved of this burden because the defendant?s case is weak or that the defendant chose to blow a muted trumpet or none at all. Learned Counsel then underscored the foundation of the claim of the Respondent. According to him it related and was predicated on a purchase from Oyedele Odunfa family and supported by Exhibits C and D, as documents of title. He referred to the famous case IDUNDUN VS OKUMAGBA (1976) NMLR 200 AT 248 and pointed out proof of title to land by production of documents is recognized by the Courts of this Country. He however, added that for a claimant to succeed in his claim, he must establish by credible evidence that a defendant?s family had divested itself of title to the land in respect of which the claimant

relied on these documents. He submitted that mere production of Exhibit C and D will not entitle the Respondent in this appeal to a favourable judgment. He referred to and relied on the decision in AKINDURO VS ALAYA (2007) 6 SC (Pt.II) 12 at 130 and LAWSON VS AJIBULU (1997) 6 NWLR (Pt 507) 14 at 31 where Supreme Court held that for a document to be valid as an instrument of transfer of title to land it must pass certain tests which include:-
(a) whether the document is genuine and valid:
(b) whether it had been duly execute stamped and registered;
(c) whether the grantor had the authority and capacity to make the grant;
(d) whether in fact the grantor had what he purported to grant; and
(e) whether it had the effect claimed by the holder of the instrument.

According to learned counsel the Respondents case was strongly contented in respect of (c) and (d) above.

Against the foregoing scenario, recital on Exhibit D and argued that it clearly shows that the vendors were neither the Appellant in person or any member of his family. Therefore, according to Mr. Omoniyi, of counsel, the lower Court

ought to have used Exhibit D as a hanger to assess the oral evidence adduced and come to one and only one conclusion that the Exhibit D failed to prove that Oyedele Odunfa family sold the land to the Respondent. He urged on this Court to re-evaluate Exhibit D and make proper findings thereon. He further referred to a number of decided cases and submitted that had the lower Court properly evaluated the evidence it would have had no difficulty in dismissing the claim of the Respondent in its entirety.

With respect to Exhibit C, learned counsel pointed out that it was never pleaded. He added that a document not pleaded can only be admitted in evidence if and only if the fact leading to it was pleaded. He maintained that there was no averment in the pleadings that any payment was made to the Appellant in person as to make Exhibit C admissible despite the objection taken against that at the trial. He submitted that the lower Court was in great error to have admitted Exhibit C and made use of it. In conclusion, learned counsel submitted that the case put forward by the Respondent was inherently defective and contradictory and had the lower Court evaluated the

facts properly it ought not to have been upheld. He urged on this Court to so find and resolve this issue against the Respondent.

In his response on whether there was sufficient legally admissible evidence to warrant the grant of the reliefs in legs (a) and (d) in the Claimant?s act, learned counsel pointed out that the Respondent tendered Exhibit A and B and pointed out that they were Certified True Copies of Certificate of Occupancy covering the land in dispute and duly issued by the Ogun State Government. He further pointed out that they admitted in evidence without any objection. He referred to page 116 of the records of appeal in support as well the case of IDUNDUN VS. OKUMAGBA (Supra) on the various methods of proving title to land. He further relied on the decision of this Court in AKOSILE VS. ADEYEYE (2011) 17 NWLR (pt. 1276) 266 and explained that a party is not required by law to prove title by all the methods set out in IDUNDUN VS. OKUMAGBA (SUPRA) because it is sufficient to be entitled to a declaration of title if a party proves by any one of the methods. In a further effort learned counsel referred to Exhibit C and pointed out that it was a purchase receipt

issued by the Appellant’s family and which he the Appellant had signed by way of thumbs printing and his name being started thereon as a witness. Learned counsel also pointed out further that the Appellant had objection to the admissibility of Exhibit C at the trial Court but was overruled by the learned trial judge.

In his attempt to justify why the lower Court treated Exhibit as it did, learned counsel argued that the relevancy of any piece of evidence takes precedent over any other consideration and what determines admissibility is relevancy. He then went on to explain that the fact in issue at the trial Court was whether there was an outright sale of the land in dispute to the original claimant by the Appellants family. Therefore any evidence of a receipt issued by the Appellants family for the sales of the land in dispute whether pleaded or not with leave or without leave becomes relevant and consequently admissible. While referring the decisions of the Supreme Court in ABUBAKAR VS. CHUKS (2007) 12 SC 1 at 12-13 and NWABUOKU VS ONWORDI (2006) 5 (Pt 3) 103 at 114 AND Sections 6, and 8 of the Evidence Act, learned counsel submitted that in a

transaction relating to land, evidence of a purchase of the land in dispute is material and with respect to the circumstances of this action Exhibit C was properly admitted with respect to the decision in NWABUOKU VS ONWORDI (supra), learned counsel pointed out that the Court had said that admissibility, as one of cornerstones of our Law of Evidence, is based on relevancy. He pointed out further that the Apex Court had held in the same case that a fact in issue is admissible if it is relevant to the matter before a Court and against that it is correct that relevancy is a precursor to admissibility.

Also, with respect to Exhibit D, learned counsel made similar observations, remarks and submissions to justify why the lower Court considered and admitted it in evidence. He urged on this Court to hold that it was rightly admitted and proceed to resolve his issue one in favour of the Respondent and against the Appellant

Before I proceed with the determination of this issue, I wish to underscore certain background facts that I consider very germane and relevant. Foremost among those is that from the pleadings and the evidence advanced at the trial, it would

appear that the case of the Respondent, as the Claimant was predicated on an order for declaration of title to land. The Respondent sought to prove his entitlement to the order by more than one of the well- known and settled methods of proof of title of land, i.e., by production of documents and proof, of acts of possession and ownership, etc. The Appellant had merely and strictly sought to prove his defence to the claim of the Respondent and the counterclaim by giving evidence of traditional history. In a kind of summing up, the learned trial judge observed thus:-
“The claimant herein by the pleadings and evidence in Court states that the land in dispute belonged to the Oyedele Odunfa family (i.e. the defendant,s family) from who the original claimant now deceased purchased the portion in dispute. Thus establishing the defendant’s case that the land in dispute is part of a large expanse of land belonging to the defendant’s family.
The Claimant exhibited a temporary receipt dated 5/6/2008, a conveyance dated 10/2/1978 and Deed of Agreement (date of which is not clear) as exhibits in proof of the fact that the claimant bought the land. The claimant

also relied on acts of ownership exercised on the land such as farming on the land and selling part of it. It is trite that a party to a land in dispute is not restricted to plead and prove just one root of title in order to succeed. If he can prove only one of the recognized ways of proving title to land, it is enough but if he relies on more than one root, that is merely to make assurance doubly sure. In other words, he does that ex aboundatia candela. See Akpan v. Otong (1996) 10 NWLR (pt. 476) 108 at 127, Balogun v. Akanni (1988) NWLR (pt. 10) 301 at 306, Morounkeji vs. Adebosun (2003) 14 NSCOR 340 at 350.
The defendant on the other hand in his Counter-claim proved this title to the land in dispute by traditional evidence. It is essential however that evidence in support of traditional history must be very reliable and credible, hence, where a party has set out to establish his title by traditional history, he must prove his title by conclusive and cogent evidence of tradition. See Akpan v. Otong (supra), Labile v. Registered Trustees of C & S Church (2003) 13 NSCOR 19.
It is also settled that once the traditional evidence is found to be

conclusive and cogent there would be no need whatsoever to require further proof. See Akuyili v. Ejike (1996) 5 NWLR (pt. 449) 381 at 417. Balogun v. Akanji (1989) 1 NWLR (pt. 10) 301. The traditional history will succeed on its merits standing alone or fail where such history breaks down for being unreliable in nature or owing to its own internal conflict.?
(See lines 4 to 29 page 154 of record of appeal)

Further to this observation of the lower Court, I wish to point out that though there was objection to the admissibility of Exhibits C and D at the trial, which was overruled, none of the grounds of appeal complains about the overruling of those objections. In addition to that Exhibit, Exhibits A and B were tendered and admitted without any objection at all. The learned trial judge was therefore fully entitled to freely rely on these 2 documents to draw any inferences or conclusions that can reasonably and safely be made from them because as documents that were properly tendered and admitted they are entitled to be allowed to speak for themselves. Exhibits A and B are Certificates of Occupancy issued by the Ogun State Government. It must also

be pointed out that documentary evidence tends to be stronger than oral evidence in the proof of certain facts. With respect to these documents, the claimant/Respondent averred that:-
“The claimant avers that she is the owner of vast area of land as demonstrated by her Certificate of Occupancy Nos. 00011131 and 0011090 dated 3rd day of August, 1985 and registered as No. 9 at page 9 volume 342 and No. 50 at page 50 volume 340 land registry, Abeokuta, Ogun state. The two Certificate (sic) of Occupancy are hereby pleaded and ground rent receipt to up to 2010 paid Ogun State Government.?

Further to the pleadings, these Certificates of Occupancy were mentioned in Paragraph 5 of the written Statement of the claimant/Respondent at page 88 of the record of appeal. It was duly front loaded as one of the documents to be relied at the trial of the action. They were tendered and freely admitted in evidence, through the evidence of CW1 at page 116 of the record of appeal. Though it was the photocopies that were admitted, proper foundation was duly laid for their admissibility as such, that is, the death of the original claimant had made the location of the

originals difficult or rather impossible.

Also, as rightly pointed out by the lower Court, the identity of the land in dispute was not an issue at the trial. Though the Appellant called the duly identified land in dispute as ?Isobeni? or ?Oke-Koto?, the Claimant/Respondent called it “Oke Elelede”. I think it is appropriate to say that it is common occurrence in land matters for parties to refer to the same piece of land by different names and also to indicate in their respective plans, different features, but the bottom line remains the fact that the parties know the land in dispute.
See BOSINDE AYUYA & 4 ORS VS CHIEF NAGHAN YONRIN & 3 ORS (2011) 4 SC 1; CHIEF BABALOLA VS. OBA ALADEJANA (2001) 6 SC 124.

Now going back to the main task at hand, that is, the resolution of issue one after the foregoing background information, item (i) in the Claimant?s action was for a declaration of title and for right of occupancy to the land in dispute. In such a claim the onus is on the Claimant to show that she/he was entitled to the declaration which was sought. He has to succeed on the strength of his own case and not on the

weakness of the defence. See KODILINYE VS. ODU 2 WACA 136: ARE VS. IPAYE (1990) 2 NWLR (PT. 132) 298 AND UMEOJIAKO VS EZENAMO (1990) 1 NWLR (PT 126) 253. According to the decision in EJIKE VS. UNUKOGU (2005) 6 SCM 196 in a claim for declaration of title to land a consideration of the defendant’s case does not arise until the plaintiff had led evidence showing prima facie that he or she had a title to the land. It is indubitable that on a proper direction, in the instant appeal, it is the Respondent who claimed a declaration of title who should prove exclusive possession; whereas for the Defendant/Appellant, if he can show that he is in lawful and peaceful possession of land or adverse possession of it for a long time, that would be enough to defeat the claimant’s title. This necessarily points in the direction of shifting of the burden of proof to the Defendant/Counter-claimant/Appellant at some stage of the proceedings at the trial. See SAKA OWOADE VS. JOHN A. OMITOLA & 2 ORS. (1988) 5 SC 1.

During the trial CW1, was the principal witness for the claimant. After his initial oral evidence on 17/04/2013 at page 98 of the record of appeal, he was

cross-examined. With leave of Court, he was recalled on 8th July, 2013 to give further evidence at pages 115 to 117 of the record of appeal. All the documentary evidence relied on by the Respondent were tendered and admitted through this only witness. He was not cross-examined further. It was at that stage that the Respondent closed his case and the Court called on the Appellant to open his defence. In the course of the written statement on oath that was frontloaded with his pleadings as defence and counterclaim. He was cross-examined more robustly than the shallow and perfunctory cross-examination of CW1. He did not tender any documents but denied that he had anything to do with Exhibit C.

After pleading detailed evidence of history, the Appellant in Paragraph 26 of his statement of defence pleaded that:-
“The defendant avers that the claimant without the knowledge and or consent of their family unlawfully obtained a Certificate of Occupancy (sic) over the land which she has (sic) started selling to various individuals.?

Also in Paragraphs 35 and 36 of the Appellants statement on oath he told the Court that:-
35- “That the

Certificate of Occupancy (sic) No. 0001131 of 3rd August, 1985 and No.00011090 of 3rd August 1985 was (sic) unlawfully issued by the Commissioner of Works and Housing who has no power under the Land Use Act to issue a Certificate of Occupancy.
36- That I deny that the claimant (sic) possession was not disturb as the claimant had at several times had to arrest me and got me locked up by the police on account of my challenge of the claimant (sic) occupation of my family land.?

Against all the foregoing, I wish to observe that though Exhibits A, B, C and D were tendered and admitted in evidence in support of the case of the Respondent, a document of title does not automatically entitle a party armed with it, to ownership of a land. A party’s production and reliance on such an instrument inevitably, carries with it the necessity for the Court to inquire into some number of questions viz:-
(i) Whether the document is genuine and valid
(ii) Whether it has been duly executed, stamped and registered;
(iii) Whether the grantor had the authority and capacity to make the grant;
(iv) Whether the grantor had in fact what he

purported to grant; and
(v) Whether it has the effect claimed by its holder.
See AGBOOLA VS UBA PLC (2011) ALL FWLR (PT 574) 74, DABO VS ABDULLAHI (2005) 7 NWLR (PT 923) 181; KYARI VS ALKALI (2001) 11 NWLR (PT 724) 412; AYANWALE VS ODUSANMI (2011) 11 NWLR (Pt 1278) 328 and OLANIYAN VS FATOKI (2013) 17 NWLR (Pt 1384) 477.

With respect to the facts and circumstances in this appeal, reliance was heavily placed on Exhibits A and B. They are Certificate of Occupancy. The law is well defined that a Certificate of Occupancy is not a conclusive proof of ownership. It is a mere presumption of prime facie ownership and possession by its holder why presumption is rebuttable. See TENIOLA VS OLOHUNKUN (1999) 5 NWLR (PT 602) 280, MADU V MADU (2008) ALL FWLR (Pt 414) 1604; DABUP VS KOLO (1993) 9 NWLR (PT 317) 254; OLAGUNJU VS ADESOYE (2009) 9 NWLR (PT 1146) 225 ADOLE VS GWAR (2008) ALL FWLR (Pt 423) 1217; AGBOOLA VS U.B.A. PLC (Supra) AND TUKPO VS JOHN (2012) 7 NWLR (Pt. 1299) 357.

The learned trial judge had failed to properly evaluate Exhibits A and B but had done what appeared to be an evaluation of Exhibit C and other admitted evidence. At page 155

of the Record, the learned judge observed and held:-
“The defendant in his testimony as to how the original Claimant came about the land in dispute, stated that Saanu of Oyedele stock gave his portion or partitioned land to Olohan, a brother of Oyedele to farm on. The said Olohan in turn leased the land to the original Claimant herein and later sold to her.
In the instant case the Defendant/counter claimant, failed to prove any of the ingredients of leasehold. It seems to me that the claim of the defendant that the land was leased later sold to the claimant is an admission that the claimant was put on the land by the defendant’s family and in my view legally. It seems to me that the defendant who allegedly signed a document of sale to the original claimant is well aware of the sale but is trying to recover the land from the claimant illegally, after the death of the vendor and the original claimant (purchaser).
For the foregoing, I hold that the claimant has proved how he got on the land that is by purchase. I am satisfied with and convinced by the evidence of the claimant. I hold that the claimant has proved his title to the land in dispute;

the Certificate of Occupancy were duly issued to the original claimant. Claim 1 of the Claimant?s claim succeeds.
There is the evidence of the claimant that the defendant has been selling off the land in dispute and carrying on construction on part of the land. Having held that the claimant has proved title to the land it follows that the other legs of the claimant’s claim would succeed. Claim 2 also succeeds.”

With respect to judicial and official acts generally there is a presumption of regularity under Section 150 of the Evidence Act. It means that there is a legal presumption that judicial and official acts have been done rightly and regularly until the contrary is proved seems to me fully applicable in this case, as regards particularly Exhibits A and B. Though none of the parties or the Court deemed it necessary to join the Ogun State Government or any of its agencies as a proper or necessary party to the action, this presumption of regularity of official acts will still apply to Exhibits A and B that at the date they were issued the grantor and the grantee had fulfilled all the requirements of the law to vest title of the identified land

on the holder of the said Exhibits A and B. The findings of the lower Court on the relationship of Exhibit C with the Appellant cannot be faulted and was proper and appropriate in the circumstance.

With respect to Exhibits A and B signed by the Ogun State Commissioner of Works, the learned trial judge referred to Section 45(1) and (2) of the Land Use Act and concluded that the Governor of a State is empowered to delegate his powers to issue Certificate, under the Land Use Act. He held further that the power so delegated in the instant case was therefore legal and lawful. Against these the learned judge held that Exhibits A and B were validly issued. I do not see any good challenge from the Appellant to fault this finding and conclusion, indeed there was no appeal against the decision. It may also be added that in civil cases, proof of particular facts leading to the establishment of a right or obligation is on balance of probabilities or preponderance of facts. One fact or set facts or existence or non-existence of certain states of affairs are said to preponderate over the other if one was more probable than the other.

?With respect to this appeal, the

lower Court was faced with Exhibits A and B. These documents enjoy the legal presumption of regularity. They were validly issued. There was no sufficient challenge to their validity. They are prima facie evidence of title. They were title documents and duly registered as such. For the Appellant to challenge the validity of Exhibits A and B by his mere ipse dixit, without more, would not render them invalid. In fact as documents of title, they are prima facie evidence of ownership and possession. The Appellant failed to adduced any credible evidence to defend or justify any of his activities on the land in dispute in dispute. The Respondent had remained vigilant. Also, the Respondent had taken steps to protect her peaceful enjoyment of her land by reporting to the police any of the several incursions of the Appellant onto the land in dispute. These much were fully admitted by the Appellant, including the sale of parts of the land in dispute by the Respondent, in his statement of oath.

It was against this and the failure of the Appellant to adduce any credible evidence more than his capricious interpretation of historical facts that the judgment of the

lower Court went against him and there are no good reasons to decide otherwise. After also having thumb printed Exhibit C, though strictly not a document of title, but a receipt and evidence of a transaction involving some landed property, the Appellant by mere ipse dixit and bare faced denials of well established facts sought to wish away its effect and consequence. The learned judge trial fully saw through the failure of the Appellant to defend the claim of the Respondent or to establish his phantom counterclaim.

Against all the foregoing, I am of the view that issues one and two as argued on behalf of the Appellant are of no moment and must be resolved against him and in favour of the Respondent. The learned trial judge was right to have dismissed the counterclaim after he upheld the claim of the Claimant/Respondent. This appeal therefore lacks merit and it is accordingly dismissed.

The judgment of the lower Court delivered on 10th January, 2014 in Suit No. HCL/4/2011 is affirmed N50, 000 costs to the Respondent.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft form the judgment of

my lord Ali Abubakar Babandi Gumel JCA. I agree with the reasoning and conclusions of my lord in the judgment.

Our Courts have long established that there are five different ways of proving ownership of any land in dispute. See Idundun v Okumagba (1976) 9-10 SC 246-250 which has to be the locus classicus on the subject. Although they are five separate and not collective ways thereby making proof of one way sufficient, the respondent was able to establish and in my view convincingly too, ownership of the land in dispute in two ways, namely:
(1) By production of document of title and
(2) By acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant an inference of ownership.

The appellant on the other hand relied on traditional evidence which did not appear to be cogent. In the circumstances, the learned trial judge was right to have given judgment in favour of the respondent who was the claimant before him.

I agree with my lord therefore that the appeal lacks merit. The judgment of the lower Court is affirmed. I abide by the order awarding N50,000 costs to the

respondent.

NONYEREM OKORONKWO, J.C.A.: Where there is a title document evidencing title to land such as a Statutory Certificate of Occupancy or other such Instrument duly or validly issued, it creates a presumption of ownership in favour of the title holder prescribed thereupon. Another document of the same kind and in respect of the same land cannot be issued without prior nullification of the earlier instrument. Even where two such documents co-exist though irregularity, the law accords priority to the earlier one under the maxim he who is first in time is stronger in law.

?It is for the above reasons that I agree with the lead judgment in this case as delivered by my learned brother Ali Abubakar Babandi Gumel, JCA. I agree with the orders he made.

Appearances

Mr. Ayodele A. OmoniyiFor Appellant

AND

Mr. Ore M. AbdullahiFor Respondent