MR. OWEN C. AGU v. MR. DONATUS MADUNEMELE
(2016)LCN/8226(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of February, 2016
CA/E/240/2010
RATIO
LAND LAW: TITLE TO LAND; WHETHER THE PARTY WHO TRACE HIS ROOT OF TITLE TO A PARTICULAR PERSON OR FAMILY MUST OF NECESSITY PLEAD AND LEAD EVIDENCE TO ESTABLISH THE LATTER’S ROOT OF TITLE AS WELL
The law is well established to the effect that in action for a declaration of title to land, the party, such as the appellant herein, who traces his root of title to a particular person or family, must of necessity plead and also lead evidence to establish the latter’s root of title as well, unless the latter’s root of title is admitted by the opposing party. Anukan v. Anukan (2008) 2 SCNJ 62; (2008) 5 NWLR (pt. 1081) 455; (2008) 1-2 S. C. 34; Okocha v. Irubor (2013) 36 WRN 148 at 158 (CA). per. TOM SHAIBU YAKUBU, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHETHER THE BURDEN OF PROOF LIES WITH THE PARTY WHO APPROACHED THE COURT SEEKING DECLARATION OF TITLE
Let me restate the law straight away that it is the appellant who approached the Court below, seeking a declaration to the title of the plot 412 in issue who has the burden to first establish that fact. He is the first person who asserted that the land in dispute belongs to him, therefore he is also the first person to lead evidence to the satisfaction of the Court that the declaration to that piece of land should be made in his favour. That is the essence of the provisions of Section 131(1) and (2) of the Evidence Act, 2011, which provides that:
Section 131(1) – “Whoever desires any Court to give judgment as to any legal right or liabilitydependent on the existence of facts which he asserts must prove that those facts exists.”
Section 131(2) – “When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
Furthermore in Section 132 of the same Evidence Act, 2011 the position of the law was made clearer to the effect that:
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” per. TOM SHAIBU YAKUBU, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTY HAS THE BURDEN OF PROOF IN CIVIL CASES
Therefore, it is a cardinal and well settled principle of law that the burden of proof in civil matters is generally on the plaintiff/claimant. Hence he is duty bound to prove what he pleaded in his pleadings. University of Jos v. Ikegwuoha (2013) All FWLR (pt. 707) 641 at 655; Abubakar & Anor v. Joseph & Anor (2008) 6 SCNJ 226; Midford Edosomwan v. Kenneth Ogbeyfun (1996) 4 SCNJ 21 at 33; Balogun v. Latiwon (1988) 3 NWLR (pt. 80) 67. per. TOM SHAIBU YAKUBU, J.C.A.
EVIDENCE: THE IMPLICATION OF A SITUATION WHERE THERE ARE CONFLICTING PIECES OF EVIDENCE
The law is very firmly settled that where there are conflicting pieces of evidence proffered by and for the parties in a case, the party whose evidence is supported by documentary evidence which is not pejorative with respect to its integrity and authenticity is accorded more credibility and should be believed by the Court. Eya v. Olopade (2011) 11 NWLR (pt. 1259) 505 (SC); Lasisi Ogbe v. Sule Asade (2009) 12 SCNJ 288. per. TOM SHAIBU YAKUBU, J.C.A.
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MR. OWEN C. AGU – Appellant(s)
AND
MR. DONATUS MADUNEMELE – Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This appeal is sequel to the judgment of the Anambra State High Court of Justice, holden at Onitsha and delivered on 12th April, 2010. The appellant had approached that Court hereafter simply referred to as the Court below and prayed for:
A declaration that the plaintiff is entitled to the statutory Right of occupancy over the land known as plot 412 situate behind Idoko International Hotel Limited at the Otakpo Residential Layout Onitsha, Onitsha North Local Government Area of Anambra State of Nigeria within jurisdiction. The claim was denied by the respondent.
Pleadings were filed and exchanged between the parties who joined issues as to the real ownership of Plot 412 at the Otakpo Residential Layout, Onitsha. The appellant’s case is that the said land is part of a large expanse of land which belonged to the Okoligbo or Umuokoligbo family of Onitsha. That the Umuokoligbo family after dividing their land into plots, had in 1977 conveyed four plots, to wit: Plots 164, 165, 171 and 172 to Benedict Anieweta Egbuna, Esq., in 1977. However, consequent upon the approval of Otakpo
residential Layout by the Anambra State Government, there was a re-plotting of the layout whereby Benedict Anieweta Egbuna, Esq. was reallocated plot 412 which he later sold to one Julian Okpaleke, who in turn sold the same land to the appellant.
On the other hand, the respondent’s case is that the Umuokoligbo family had sold a parcel of land measuring 51.25sq. meters in length and 72.88sq. meters in width, with an area of 2227.945 sq. meters to Paul Enenia Modebe in 1977 prior to the re-plotting of the Otakpo Residential Layout. And that Paul Enenia Modebe had divided his parcel of land into plots, one of which is plot 412 which he sold to the respondent.
Both parties testified for themselves and each of them called one witness a piece who also gave evidence at the trial.
Both parties also tendered into evidence, some documentary exhibits. At the end of oral evidence by the parties and their witnesses, learned counsel for each of them filed and exchanged written addresses. Thereafter, the learned trial judge, in his judgment found for the respondent by dismissing the appellant’s claim. The appellant was displeased and dissatisfied with the judgment against him.
He appealed to this Court, predicating the appeal on two grounds.
The appellant, in order to effectively prosecute the appeal, through his counsel A. C. Anaenugwu, Esq., filed the appellant’s brief of argument on 1st April, 2011 but deemed as properly filed and served by this Court on 22nd May, 2014. In it, two issues were identified for the resolution of the appeal, thus:
(i) Whether the decision/finding of the Court that the land in dispute (plot 412) was part of the parcel of land earlier sold to Paul Enenia Modebe (DW2) in 1977 by the Umuokoligbo family was borne out by the evidence on record.
(ii) Whether the finding of the High Court that the appellant had no viable challenge to the formidable defence of the respondent that the family had in 1977 sold the land in dispute to Paul Modebe long before the plotting exercise of 1984 is borne out by the evidence on record.
On his part, the respondent through his counsel Ben Osaka, Esq., filed the Respondent’s brief of argument on 6th August, 2014 but the same was by this Court, deemed as properly filed on 18th November, 2014. Two issues were also nominated therein for the determination of the
appeal. They are namely:
1. Whether the learned trial Judge was correct when he held that the land in dispute was sold to Barrister B. A. Egbuna the PW1 and Paul Enemia Modebe DW2 at various times.
2. Whether the learned trial Judge was correct in his finding that the Appellant on the face of the record of the Court had no viable challenge to the formidable defence of the Respondent that the family had in 1977 sold the land in dispute to Paul Modebe long before the plotting exercise of 1984.
The Appellant’s Reply brief dated 28th November, 2014 was filed on 1st December, 2014.
It is noteworthy that the respondent at paragraph 5 of his brief of argument indicated a Notice of Preliminary objection and offered argument on it at paragraphs 5.0 – 5.05 of the same brief of argument. I shall consider and determine it now before proceeding to the consideration of the appeal on its merits. The grounds of the said objection are:
1. That the Record of Appeal compiled by the Registrar of the Court is defective and incompetent and contrary to the mandatory provisions of Order 8 Rule 4 of the Court of Appeal Rules, 2011 .
2. That the issue for
determination postulated by the Appellant did not arise from Ground 1 contained in the Notice and Ground of Appeal.
It is the contention of the respondent’s counsel to the effect that since the appellant’s notice of appeal was filed on 6th July, 2010 and the record of appeal was transmitted to this Court by the registrar of the Court below on 30th September, 2010; the said record of appeal was transmitted to this Court outside the 60 days mandated in Order 8 Rule 4 of the Court of Appeal Rules, 2011. He referred to Gov. Zamfara State v. Gylange (2013) 8 NWLR (pt. 1357) 462 at 491 (SC); Asol (Nig) Ltd v. Access Bank Rules (Nig) Plc (2009) 10 NWLR (pt. 1149) 283 at 297 (CA); Mrs, Paulina Asika & ors v. Charles Chukwuma Atuanya (2013) 14 NWLR (pt. 1375) 510 at 530.
With respect to issue 1 formulated by the appellant’s counsel, the respondent’s counsel contended that the said issue did not arise from ground 1 of the notice of appeal, and that the said issue 1 is incompetent. He placed reliance on Captain Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76; Adelusola & 4 Ors v. Akinde & 3 Ors (2004) 12 NWLR (pt. 887) 295 at 311. He furthermore submitted that if
issue 1 is struck out, it follows that ground 1 of the notice of appeal has no issue formulated from it and should be deemed as abandoned.
Responding to the contentions of the respondent, the learned senior counsel to the appellant at paragraphs 2.0 – 2.7 of the appellant’s reply brief submitted that it was when the registrar of the Court below failed to compile the record of appeal within 60 days allocated to her to so do, that the appellant took advantage of the 30 days window available to him and compiled and transmitted the record of appeal by himself to this Court on 30th September, 2010. And that the said record of appeal was transmitted to this Court within 90 days, from 6th July, 2010 when the notice of appeal was filed, hence according to him the record of appeal is competent and properly filed and laid before this Court.
With respect to the second ground of the preliminary objection, he submitted that issue 1 formulated in the appellant’s brief of argument clearly arose from ground 1 of the notice of appeal.
Resolution of Preliminary Objection
Unarguably, by virtue of the provisions of Order 8 Rule 1 of the Court of Appeal Rules, 2011; the Registrar of
the Court below had 60 days within which to compile and transmit the record of appeal to this Court. However, if and when the registrar fails to comply with Order 8 Rule 1 above cited, it then falls on the appellant to compile and transmit the record of appeal by himself in compliance with Order 8 Rule 4 of the Court of Appeal Rules, 2011. Therefore, when the 60 days expired without any action having been taken by the registrar, the appellant has 30 days to do so. Hence, the period of 90 days enures to the appellant from the date the notice of appeal was filed to the date on which he personally compiled and transmits the record of appeal to this Court. That is the essence of the decision of the Supreme Court, per his Lordship, Ariwola J.S.C, in Gov. Zamfara State v. Gylange (supra) where at p. 491 of the report, he succinctly stated, inter alia:
“The Rule of Court is so clear on that compilation and transmission of records of proceeding to the Court of Appeal from the trial Court. It is the duty of the Registrar of the trial Court within sixty days after the filing of a Notice of Appeal to compile and transmit the record of Appeal to the Court of Appeal. And
where at the expiration of sixty days after filing of the Notice of Appeal, the Registrar has failed and or neglected to carry out his duty to compile and transmit the records, it shall become mandatory for the appellant to within thirty days of the failure of the Registrar, compile and transmit the records. See Order 8 Rule 1 and 4 of the Court of Appeal Rules 2007.”
I should say that Order 8 Rules 1 and 4 of the Court of Appeal Rules, 2011 is in pari materia with Order 8 Rules 1 and 4 of the Court of Appeal Rules, 2007. In the instant case, there is no doubt that the notice of appeal was filed on 5th July, 2010 and that the record of appeal was compiled and transmitted to this Court on 30th September, 2010 – a period less than ninety (90) days. Therefore, I am in agreement with the submission of appellant’s senior counsel to the effect since it was the appellant who, on the failure of the registrar to compile and transmit the record of appeal to this Court, personally saw to it that the record of appeal was compiled and transmitted to this Court, before the expiration of 90 days from the date the notice of appeal was filed on 5th July, 2010 to the date that
the said record of appeal was compiled and transmitted to this Court on 30th September, 2010, the said record of appeal was properly transmitted to this Court and it is competent. I, so hold.
I have considered the submissions of both counsel herein and perused ground 1 and its particulars as contained in the appellant’s notice of appeal vis-a-vis issue 1 identified by the appellant’s learned senior counsel, for the determination of the appeal. I am satisfied that the said issue clearly emanated from ground 1of the notice of appeal. I hold that the objection against issue 1 of the appellant’s is without merits and it is dismissed. Therefore, the respondent’s preliminary objection, to my mind is tenuous, so it fails and accordingly, it is dismissed in its entirety.
In my consideration and determination of this appeal, I adopt the two issues nominated by the appellant. They shall be determined together. It is the appellant’s contention that there is no evidence proffered by the respondent that the plot 412 Otakpo Layout in dispute was part of the land earlier sold to Paul Enenia Modebe (DW2) by the Okoligbo family. Furthermore, he contended that there was no oral
or documentary evidence adduced by the respondent indicating that Plot 412 formed part of plots 143 and 219 conveyed to DW2 by the Umuokoligbo family. And that the plot 412 in dispute was at any time before or after the re-plotting exercise conveyed to DW2 by the Umuokoligbo family, therefore the DW2 – Paul Modebe had no plot 412 to effectively transfer to the respondent. Furthermore, he contended that there is no evidence proffered by the respondent how plots 143 and 219 granted to DW2 metamorphosed into plot 412 in 1996, therefore the trial Court had no power to speculate on the acquisition of plot 412 by the DW2 – Paul Modebe. He referred to Nwachukwu v. The State (2002) 2 NWLR (pt. 751) 366 at 385 which adopted the view of Eso, JSC in State v. Aibangbee (1988) 3 NWLR (pt. 84) 548 at 577 to the effect that a Court ought not be speculative nor presumptuous in deciding matters before him which must be anchored on evidence led by the parties. He submitted also that in the absence of evidence proffered by the respondent that the parcel of land conveyed to Paul Modebe (DW2) in t977 by the Umuokoligbo family is the same or encompassed the plot 412 in dispute, the
respondent failed to prove his case.
Learned senior counsel to the appellant further insisted that the learned trial judge was wrong when he held that the Plot No. 412 in dispute was sold to both Barrister B. A. Egbuna and Paul Enenia Modebe by the Umuokoligbo family at various times and that the said finding by the Court below was perverse. He therefore submitted that this Court can interfere with the said finding and re-evaluate the pieces of evidence laid before the Court below and see that justice is done to the parties. He relied on Iwuoha v. NIPOST Ltd (2003) 8 NWLR (pt. 822) 308 at 343 (SC).
Furthermore, he submitted that the appellant’s case is to the effect that he bought the land in dispute from one Julian Okpaleke who himself had bought the same land from Barrister B. A. Egbuna who in turn had purchased the same land from the Umuokoligbo family of Onitsha. He also said that there is evidence proffered by Barrister B. A. Egbuna as PW1 that plot 412 Otakpo Layout, 3 – 3, Onitsha was amongst the four (4) plots of land granted to him by the Umuokoligbo family in lieu of the earlier plots conveyed to him by the same Umuokoligbo family in 1977 and that the
new plots were conveyed to him after the re-plotting of the layout as both the old and new plots are evidenced by Exhibits P4, P5 and P6. He referred to the evidence of PW1 under cross-examination at page 151 of the record of appeal, to the effect that plots 412, 413, 308 and 309 were the four plots given to him by the Umuokoligbo family in lieu of plots 164, 165, 171 and 172 after the Otakpo Layout was re-plotted by the Umuokoligbo family. He insisted that the appellant established his title to plot 412 and relied on Exhibit P8 – the Deed of Assignment between the appellant’s grantor – Julian Okpaleke; and Exhibit P5 – the Deed of Assignment by which Barrister B. A. Egbuna transferred his title in plot 412 to Julian Okpaleke and that there is sufficient evidence that Barrister B. A. Egbuna acquired the same plot 412 from the Umuokoligbo family. He wondered why the learned trial judge who made a finding that the land in dispute was one of the plots which the Umuokoligbo family had allocated to PW1, later turned round to say that the appellant had no challenge to the formidable defence of the respondent. He insisted that DW2 – Paul Modebe had no priority of
interest over PW1 – Barrister B. A. Egbuna in respect of plot 412 at Otakpo Layout.
Learned respondent’s counsel arguing per contra, referred to paragraph 9 of the appellant’s amended statement of claim which prayed for a declaration that he is the owner of plot 412 at the Otakpo Layout and that from that relief sought by the appellant, it is he who had the burden to prove that assertion and not the respondent. He relied on Section 131(1) and (2) of the Evidence Act, 2011; Ewo & Ors v. Ani & Ors (2004) 3 NWLR (pt. 861) 610 at 630 (SC). He submitted that instead of the appellant discharging the onus of proof fixed on him, he shifted the onus on the respondent and that by virtue of Section 132 of the Evidence Act, 2011, it is clear that it is the appellant who would lose or fail if no evidence was proffered by either side. Therefore according to him, it is the appellant who seeks a declaratory relief with respect to plot 412 who has to satisfy the Court with credible and cogent evidence in order for him to succeed and obtain the declaration he sought from the Court. He insisted that the appellant had the burden to discharge to entitle him to judgment and
not to rely on the weakness of his opponent to succeed. He referred to Elias v. Omo Bare (1982) 5 S.C. 25; Agbi v. Ogbe (2006) 11 NWLR (pt. 990) 65.
Furthermore, he submitted that from the averments in the amended statement of claim at paragraphs 4, 10, 11 and 12 thereof, it is manifest that the appellant traced his root of title to plot 412 through Julian Okpaleke to Barrister Benedict Anieweta Egbuna who testified as PW1. He pointed to the statement on oath of PW1 at pages 48 – 49 of the record of appeal to the effect that plot 412 Otakpo Layout was given to him in 1984 in lieu of another plot of land vis-a-vis his oral evidence at pages 151 – 152 of the record of appeal that the plots which were allocated to him in 1984 were plots 412, 413, 308 and 309. Furthermore that the allocation of 1984 and those of 1995 are not on the same portion of land. He submitted that with the contradictions in the pieces of evidence by the PW1 in his statement on oath and the oral evidence in open Court, it was not surprising that the learned trial judge made his finding, on pages 169 – 170 of the record of appeal to the effect that in the face of Exhibit P4, the plots
allocated to PW1 was done in 1984 and not in 1977. He therefore insisted that with the state of evidence relating to the appellant’s root of title, the learned trial judge could not have exercised his discretion to grant the appellant’s declaration to plot 412. He relied on J. B. Ogbechie & Ors v. Gabriel Onochie & Ors (1988) 1 NWLR (pt. 70) 370 at 394 (SC). He submitted further that the learned trial judge properly evaluated the pieces of evidence proffered before him and made findings therefrom which were not perverse, hence such findings need not be interfered with by this Court.
Learned respondent’s counsel also submitted that the appellant who averred that he bought the land in dispute from one Julian Okpaleke, a Commissioner of Police did not deem it fit to call him as a witness because calling the said Julian Okpaleke would be against the appellant’s interest. He urged that Section 167 of the Evidence Act be invoked against the appellant. He also contended that the appellant as plaintiff who did not visit Umuokoligbo village before the transaction to ascertain if indeed Barrister B. A. Egbuna was the owner of Plot 412 at Otakpo Layout, certainly
did not investigate his root of title unlike the respondent who took the pain of ascertaining the root of title of Paul Modebe from the head of the family – Nnanyelugo Emembolu of the Umuokoligbo family before buying the said plot of land, could not have been believed by the trial Court which rightly rejected his claim. He was emphatic in his submission to the effect that with the evidence of PW1 that the allocation made to him were in 1984 and 1995, without mentioning any allocation made to him in 1977 as put forward by the appellant in his pleading, the learned trial judge was justified when he held that the appellant had no viable challenge to the respondent’s formidable defence with respect to the latter’s root title traced to Paul Modebe of 1977 long before the plotting exercise in 1984, from where PW1 Barrister B. A. Egbuna got some plot allocations from the same family of Umuokoligbo of Onitsha.
Resolution:
The law is well established to the effect that in action for a declaration of title to land, the party, such as the appellant herein, who traces his root of title to a particular person or family, must of necessity plead and also lead evidence to
establish the latter’s root of title as well, unless the latter’s root of title is admitted by the opposing party. Anukan v. Anukan (2008) 2 SCNJ 62; (2008) 5 NWLR (pt. 1081) 455; (2008) 1-2 S. C. 34; Okocha v. Irubor (2013) 36 WRN 148 at 158 (CA).
There is no dispute as the parties in this appeal are ad idem as to the fact that the radical title to the large expanse of land at Otakpo Residential Layout, at Onitsha was vested in the Umuokoligbo family of Onitsha. The appellant traced his own root of title to plot 412 from the Umuokoligbo family through Barrister B. A. Egbuna to Julian Okpaleke and then to himself. On the other hand, the respondent, traced his own root of title from the Umuokoligbo family through Paul Enenia Modebe who later sold the land in dispute to himself. Both Barrister B. A. Egbuna and Paul Enenia Modebe gave evidence at the trial as PW1 and DW2 respectively and each of them narrated their stories regarding the purchase of the land in dispute from the Umuokoligbo family of Onitsha. The learned trial judge at pages 23 – 25 of the record of appeal had no difficulty as he found rightly, that:
“….. The land in dispute is part of a large
expanse of land, the Otakpo land, which belonged to the Okoligbo family of Onitsha. At various times, the family sold the same portion of land to both Barrister B. A. Egbuna and Paul Enenia Modebe. To this extent the evidence of the parties are in agreement.”
The crux of the divergence and disagreement by the parties relate to the fact as to who between Barrister B. A. Egbuna and Paul Enenia Modebe was the first to purchase that land in question from the radical title owner thereof, that is, the Umuokoligbo family of Onitsha. Let me restate the law straight away that it is the appellant who approached the Court below, seeking a declaration to the title of the plot 412 in issue who has the burden to first establish that fact. He is the first person who asserted that the land in dispute belongs to him, therefore he is also the first person to lead evidence to the satisfaction of the Court that the declaration to that piece of land should be made in his favour. That is the essence of the provisions of Section 131(1) and (2) of the Evidence Act, 2011, which provides that:
Section 131(1) – “Whoever desires any Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts must prove that those facts exists.”
Section 131(2) – “When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
Furthermore in Section 132 of the same Evidence Act, 2011 the position of the law was made clearer to the effect that:
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
What this means is that, like in the instant case, if neither the appellant who is the claimant seeking the Court’s declaration of title to plot 412 in question offers no evidence, and the respondent as the defendant, also refuses to offer evidence in respect of the appellant’s claim, it is the latter who would fail in his action, because the respondent did not approach the Court below seeking any declaration to plot 412 in question. That is the elementary principle of law with respect to actions bordering on declaratory reliefs.
Therefore, it is irrefutable that where a claimant prays for declarative reliefs in his claim, they are not granted on admissions by the defendant/respondent because such
declaratory reliefs are not earned and granted on a platter of gold. They are products of credible and cogent hard evidence proffered by and at the instance of the claimant, such as the appellant herein. His Lordship, Mohammed, JSC, reiterated the well established principle of the law in Dumex Nig Ltd v. Peter Nwakhoba & Ors (2009) All FWLR (pt. 461) 842 at 850, thus:
“The law on the requirement of the plaintiff to plead and prove his claim for declaratory reliefs on evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such relief are not granted even on the admission by the defendant …”
Further see Ejiogu v. Irona (2008) All FWLR (pt. 442) 1066 at 1101; Col. Nicholas Ayanru (rtd) v. Mandilas Ltd (2007) 10 NWLR (pt. 1043) 463 at 477 – 478; Chief L. L. B. Ogolo v. Joseph Ogolo (2006) All FWLR (pt. 313) 1; Ewo & Ors v. Ani & Ors (2004) 3 NWLR (pt. 861) 610 at 630 (SC).
Therefore, it is a cardinal and well settled principle of law that the burden of proof in civil
matters is generally on the plaintiff/claimant. Hence he is duty bound to prove what he pleaded in his pleadings. University of Jos v. Ikegwuoha (2013) All FWLR (pt. 707) 641 at 655; Abubakar & Anor v. Joseph & Anor (2008) 6 SCNJ 226; Midford Edosomwan v. Kenneth Ogbeyfun (1996) 4 SCNJ 21 at 33; Balogun v. Latiwon (1988) 3 NWLR (pt. 80) 67.
It appears to me that in the instant case, the learned senior counsel for the appellant focused and majored more in picking holes in the respondent’s case as if the latter is the claimant, instead of demonstrating how the appellant led cogent and credible evidence in proof of his claim at the Court below. In any event, I have myself perused the pieces of evidence proffered by and for the appellant vis-a-vis those of the respondent. Now let us begin from the proper place, that is, the appellant’s side. The PW1 – Barrister B. A. Egbuna who the appellant averred that was the person to whom the Umuokoligbo family allocated the land in dispute to, stated in his sworn statement on oath at pages 48 – 49 of the record of appeal, inter alia:
“That I know present plot 412 at Otakpo residential Layout Onitsha. The plot was given
to me by Umuokoligbo family in lieu of another plot given to me by the same family in 1984.”
In his evidence in Court at pages 151 – 152 of the record of appeal, he B. A. Egbuna as PW1 testified thus:
“The plots which were given to me in 1984 were plots 412, 413, 308 and 309 … There is no dispute with respect to the allocation to me. The allocation of 1984 and those of 1995 are not on the same land.”
However, through Barrister B. A. Egbuna, PW1, a Deed of Conveyance executed on 15th February, 1977 was tendered and admitted into evidence as Exhibit P4 which is to the effect that PW1 bought the land in question in 1977. But he never said anything with respect to any plot allocated to him by the Umuokoligbo family in 1977.
The appellant’s statement on oath is at pages 45 to 47 of the record of appeal. He stated thus:
“That Umuokoligbo family through its representative by a Deed of Conveyance dated 15th day of February 1977 conveyed four plots of land to Barrister Benedict Anieweta Egbuna. The four plots were therein described as plots 164, 165, 171 and 172. The land in dispute is one of the plots conveyed to Barrister B. A. Egbuna by Umuokoligbo family.”
And that
after the Otakpo Layout was re-plotted, the land in dispute was plotted no. 412. That may well be so.
However, how did the plot no. 412 devolve from Barrister B. A. Egbuna to Julian Okpaleke and from the latter to the appellant There is no evidence by Barrister B. A. Egbuna that he transferred his interest in the land to the appellant. It was transferred to Julian Okpaleke. Curiously, there is no evidence from the said Julian Okpaleke with respect to his transfer of the land in question to the appellant. It means that just as there is no evidence that Barrister B. A. Egbuna transferred any plot to the appellant, so also there is no evidence that one Julian Okpaleke to whom Barrister B. A. Okpaleke transferred his interest in the same plot 412 to also transferred it to the appellant. Hence, the yawning gap in the evidence of the appellant claiming a declaration of title to plot 412 began to show. But that is not all.
The introduction of Exhibit P4 of 1977 into the appellant’s case by the PW1 was a watershed in the land transaction between the Umuokoligbo family and Barrister B. A. Egbuna. The learned trial judge had his reservations on the said Exhibit P4. Hear
him at page 170 of the record of appeal, to wit:
“Exhibit P4, appears to me, to be the trump card of the plaintiff. Unfortunately however, I have my reservations about that document. It seems to me that the date on the face thereof, 15/2/77, was inordinately inserted in order to achieve a clear and definite purpose. That document, certainly, was not made in 1977. Rather it was made in 1984. I say so because, on the face of the evidence before me, it was after the plotting exercise of 1984 that the said four plots of land were allotted to Barrister Egbuna. This also explains the reason why the document, Exhibit p4, was stamped in the same 1984.
Counsel attempted, in his address, to riggle out the obvious difficulties which he found himself by suggesting that the plaintiff made a mistake when he stated (in his evidence) that Barrister Egbuna bought the land in 1984. Unfortunately for him, however, it is the law that the address of counsel, no matter how beautifully conducted, cannot take the position of evidence. The inexorable implication therefore, is that long before the Umuokoligbo family ever conceived the idea of carving out the Otakpo land as a
residential layout, in 1984, they had sold some portions thereof, including the portion in dispute, to Paul Enenia Modebe. This is clearly borne out by Exhibit D1. It follows therefore, that when in 1984 the family included the portion in dispute in their aforesaid residential layout, they were not entitled to do so. As at that time, the land no longer belonged to the family. Consequently, with respect to the portion in dispute, the family had no title to confer on Barrister Egbuna either as plot No 164 or as plot No 412. He who has not cannot give, nemo dat qui non habet.”
My Lords, I must say that I do not agree any less with the inferences and deductions with respect to Exhibit P4 vis-a-vis Exhibit D1 made by the learned trial judge, for nothing can be said against the truth but for the truth! And the law is very firmly settled that where there are conflicting pieces of evidence proffered by and for the parties in a case, the party whose evidence is supported by documentary evidence which is not pejorative with respect to its integrity and authenticity is accorded more credibility and should be believed by the Court. Eya v. Olopade (2011) 11 NWLR (pt. 1259)
505 (SC); Lasisi Ogbe v. Sule Asade (2009) 12 SCNJ 288.
In the circumstances of the instant case, I am of the considered and firm opinion that Exhibit D1 made in favour of Paul Enenia Modebe by the Umuokoligbo family in respect of the land in dispute in 1977 clearly extinguished any interest or estate created vide Exhibit P4 in 1984 in favour of Barrister B. A. Egbuna by the same Umuokoligbo family in respect of the same land, that is, plot 412 Otakpo Layout.
Indeed, the law is well settled and firmly established and beyond reproach that where two persons lay claim of title to a parcel of land allegedly allocated to them by a common grantor, the first in time clearly takes priority, because it is stronger in law. Therefore, at law and also in equity, the doctrine is that estates and interests created thereon, primarily rank in the order of their creation. So he who is earlier or first in time, is stronger in equity. That is the rationale for the maxim, qui prior est tempore est jure. Ayanwale v. Odusanmi (2010) 3 WRN 1; (2010) 12 SCNJ 362, Ero v. Tinubu (2012) 49 WRN 120; (2012) 8 NWLR (pt. 1301) 104, IBBI Ltd v. Mutunci Co. (Nig) Ltd. (2012) 6 NWLR (pt. 1297)
487 at 524 C. A., Ugbo v. Aburime (1994) 8 NWLR (pt. 360) 1 (S. C.); (1994) 9 SCNJ 23, Michael Romaine v. Christopher Romaine (1992) 4 NWLR (pt. 238) 650; (1992) 5 SCNJ 25 and Okelola v. Adeleke (2004) 7 SCNJ 103 at 111; (2004) 13 NWLR (pt. 890) 307.
In sum, Exhibit D1 made in 1977 in favour of Paul Enenia Modebe with respect to the land in dispute, was made first in time and stronger in law and equity than Exhibit P4 which was made later in time in favour of Barrister Benedict Anieweta Egbuna in 1984. Therefore as at 1984 when the Umuokoligbo Family allegedly transferred plot 412 Otakpo Layout, Onitsha to Barrister Benedict Anieweta Egbuna, that same plot was no longer available to be transferred to him. He therefore purchased nothing as far as plot 412 aforesaid is concerned. Hence, he too transferred nothing with respect to the same land to Julian Okpaleke. And by parity of reasoning and logic, Julian Okpaleke had nothing in respect of plot 412 Otakpo Layout, Onitsha, to transfer to the appellant. I think with that, the appeal is a done deal against the appellant. I resolve the two issues in the appeal against the appellant. The appeal is accordingly
dismissed for being bereft of merits.
The well considered judgment of Vin. Agbata, J., of the Anambra State High Court of Justice, holden at Onisha, in re-Suit No. 0/628/99 of 12th April, 2010 is hereby affirmed.
Costs of N100,000.00 is awarded to the respondent against the appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother TOM SHAIBU YAKUBU JCA. I completely agree with his reasoning and conclusions that the appeal is completely without merit and should be dismissed.
The well thought out judgment of Hon. Justice Agbata in Suit No. 0/628/99 delivered on 12/4/10 is hereby affirmed. I abide by the order as to costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. I agree with reasoning, conclusions and orders therein.
Appearances
G. S. Obi, Esq. with him, C. M. Onuigbo, Esq. For Appellant
AND
Ben Osaka, Esq. with him, E. A. Nzegwu, Esq. For Respondent
