MR. VINCENT ADEEKO v. MR. EMMANUEL AMAECHI (2015)

MR. VINCENT ADEEKO v. MR. EMMANUEL AMAECHI

(2015)LCN/7861(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of May, 2015

CA/L/302/2013

RATIO

LAW LAND: OWNERSHIP OF LAND; WAYS OF PROVING OWNERSHIP OF LAND IN NIGERIA

The learned trial Judge in evaluating the evidence led by the parties ought to have considered whether the Respondent was able to establish his title through one of the five ways of proving ownership of land in Nigeria. They are:
1. By traditional evidence.
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extended over a sufficient length of time numerous and positive enough to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See the following cases: Idundu v. Okumagbe (1976) 9-10 SC 227; Omoregbe v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Mogaji v. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt. 7) 393; Ezeoke v. Nwaigbo(1988) 1 NWLR (Pt. 72) 616; Fasaro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Salami v. Lawal (2008) 14 NWLR (Pt. 1108) 546. per. CHINWE EUGENIA IYIZOBA, J.C.A.

EVIDENCE: ONUS/BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE ONUS OF PROOF IN A SUIT FOR DECLARATION OF TITLE

The law is settled that the onus of proof in a suit for declaration of title rests squarely on the plaintiff who must succeed on the strength of his own case and not on the weakness of the defendant’s case. The means adopted by the Respondent in the attempt to prove title was by the production of documents of title. But as already shown above, if the learned trial judge had carried out a proper evaluation of the oral and documentary evidence adduced by the parties, it would have been clear that the burden on the Respondent was not discharged. The learned trial Judge had observed in his judgment at page 235 of the printed record thus: “I must also not fail to note that the defence of the Defendant in this case is not on the land being claimed by the Claimant which land is on Emman Amechi Street, Thomas Estate, Ajah, Lagos but rather on two plots of land situate at Mobolaji Ajibola Avenue, off Gilbert Odior Street, Thomas Estate, Ajah Lagos. The lands are therefore different one from the other so that the burden of proof on the Claimant to prove ownership of the land captioned by Exhibit 3 has been discharged while the defence of the Defendant does not discharge the burden of proof on the specific land at Emman Amechi Street in dispute but rather pleads his defence on 2 different lands entirely. His defence on the land in dispute is consequently wanting in bona fide and I so hold.” per. CHINWE EUGENIA IYIZOBA, J.C.A.

COURT: DUTY OF COURT: THE DUTY OF THE COURT TO CONSIDER THE CASE BEFORE IT IN THE LIGHT OF THE PARTIES COMPLAINT AND THE RESULT OF THE FAILURE TO DO THE SAME
In the case of LAMULATU SHASI & ANOR v. MADAM SHADIA SMITH & ORS (2010) ALL FWLR (Pt. 513) 1231 at 1242 Paras F-G cited by the Appellant, the Supreme Court stated that the duty of the Court is to consider the case before it in the light of the parties complaints. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. The learned trial judge did not make proper use of the opportunity of seeing and hearing the witnesses at the trial. He drew wrong conclusions from accepted credible evidence and his findings are not supported by the evidence adduced at the trial. The conclusions of the trial judge are indeed perverse. per. CHINWE EUGENIA IYIZOBA, J.C.A.

COURT: PERVERSE FINDINGS OF THE TRIAL COURT; THE MEANING OF PERVERSE AND THE PRINCIPLES FOR APPELLATE COURT TO ASCERTAIN WHETHER O NOT FINDING OF FACTS OF THE TRIAL COURT ARE PERVERSE

The word ‘perverse’ was defined by the Supreme Court in Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 @ 4 to mean:
“Persistent in error, different from what is reasonable or required. A decision may be perverse where the Judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious.” The guiding principles for appellate Courts to ascertain whether or not findings of facts of trial Court are perverse have been laid down in so many judicial authorities. In Otukpo v. John & Anor. [2012] 3 MJSC (Pt. II) 139, the Supreme Court held that where the finding or non-finding of fact by a trial court is questioned on appeal, the appellate court will seek to know the following:
a. The evidence bpefore the court;
b. Whether the trial court accepted or rejected any evidence upon the correct perception;
c. Whether the trial court correctly approved the assessment of the evidence before it and placed the right probative value on it;
d. Whether the trial court used the imaginary scale to weigh the evidence in either side;
e. Whether the trial court upon the preponderance of evidence appreciated which side scale weighed having regard to the burden of proof. per. CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA O. OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

MR. VINCENT ADEEKO – Appellant(s)

AND

MR. EMMANUEL AMAECHI – Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): In the High Court of Lagos State in the Lagos Judicial Division, the Respondent as Claimant in his writ of summons filed on 10/12/09 claimed against the Appellant/Defendant as follows:

i. A declaration that the claimant is the owner and entitled to the statutory right of occupancy on the land situated at Thomas Estate, Ajah, Eti Osa, Local Government Area of Lagos State containing an area of approximately 1352. 173 square meters more particularly delineated and shown on survey plan No. ASC/LA/575/97 dated 25-05-97 drawn by F. A. Ogunbadejo, a Licensed Surveyor.

ii. A perpetual injunction restraining the Defendant whether by himself his servants or agents or otherwise howsoever from going into or, carrying out any development activities whatsoever on the land situate, lying at Thomas Estate, Ajah, Lagos State identified by the Survey dated 25th May, 1997.

iii. N2,000,000.00 (Two Million Naira) Special Damages for destruction of fence and use of the claimants building materials and equipment.

iv. Possession of the land.

v. N1,000,000.00 as General Damages for trespass.

As is the practice these days, pleadings were filed with all processes and documents to be relied on front loaded together with witness depositions. After pre-trial and issuance of Pre-trial Conference Report, the case was heard by Dada J. In proof of their respective cases the parties called two witnesses each. At the conclusion of trial and adoption of addresses, the learned trial Judge held that the Respondent proved title in respect of one plot only but proceeded to grant reliefs i, ii and iv of the Respondent’s statement of claim while refusing reliefs iii and v in the following words at page 235 of the printed records:

“There appears to be no contention on the specific land being claimed by the Claimant as particularized in this suit. The beacon numbers in exhibit 3 are different from the ones in the Defendant’s exhibit D5 and his composite plan in exhibit D4. Therefore I am satisfied that the Claimant is entitled to judgment as claimant in relief 1 of his statement of claim, there being no dispute on this particular plot surveyed in exhibit 3”.

“I must also not fail to note that the defence of the Defendant in this case is not on the land being claimed by the Claimant which land is on Emman Amaechi Street, Thomas Estate, Ajah, Lagos but rather on two (2) plots of land at Mobolaji Ajibola Avenue, off Gilbert Odior Street, Thomas Estate Ajah, Lagos. The lands are therefore different one from the other so that the burden of proof on the Claimant to prove ownership of the land captioned Exhibit 3 has been discharged while the defence of the Defendant does not discharge his burden of proof on the specific land at Emman Amaechi Street in dispute but rather pleads his defence on two (2) different lands entirely. His defence on the land in dispute is consequently wanting in bona fide and I so hold”.

Dissatisfied with the judgment, the Appellant caused a notice of appeal to be filed against the judgment on 7/3/13 with 11 grounds of appeal. In the Appellant’s brief settled by Henry Eshijonam Omu, Esq., and filed on 27/5/13, five issues were set out for determination as follows:

ISSUE No. 1.
Whether the Learned Trial Judge misdirected himself by basing the Honourable Court’s Judgment on the purported differences in the address of the land in dispute in the Respondent’s survey plan exhibit 3 and the Appellant’s survey plan – exhibit D5 as well as on the differences in beacon numbers on the Respondent’s survey plan – exhibit 3 and the Appellant’s survey plan – exhibit D5 and the Appellant’s composite plan – exhibit D4 and consequently holding that the burden of proof on the Respondent to prove ownership of the land captioned by exhibit 3 has been discharged. Grounds 4, 5, 6 and 9.

ISSUE No. 2.
Whether the Learned Trial Judge was right to have granted the Respondent declaration of ownership and possession to the two (2) plots of land claimed when in the same Judgment it held that the Respondent has woefully failed to prove anything more than his entitlement to only one (1) out of the two (2) plots of land in dispute and that the purported ratification of the land by the Respondent procured from the Olumegbon Chieftaincy Family falls flat with or without exhibit 4 and cannot on its own confer any title on the Respondent on the two (2) plots of land claimed by the Respondent. Grounds 2 and 3.

ISSUE No. 3.
Whether the decision of the Lower Court was perverse and against the weight of evidence. Grounds 1, 2, 3, 4, 6, 7 and 11.

ISSUE No. 4.
Whether the Learned Trial Judge was right not to have evaluated the respective roots of title of the Appellant and Respondent before granting the prayers i, ii and iv of the Respondent writ of summons and statement of claim. Grounds 1, 7 and 11.

ISSUE No. 5.
Whether the Learned Trial Judge was right to have admitted the testimonies of CW1 and CW2 who are neither the Claimant nor the Attorneys of the Claimant who lack proprietary interest in the land in dispute as the evidence in support of the Claimant’s case. Ground 8.

On his part, Learned Counsel for the Respondent Ademola Ekundayo Esq. on 12/7/13 filed a Respondent’s Notice that judgment be affirmed on grounds other than those relied on by the Court below. The grounds are:

1. That the Respondent successfully proved his title to 2 plots of land measuring in total 1325.173 square meters.

2. That the Respondent’s Exhibit 6 (Receipt of Ratification) and Exhibit 7 (Deed of Assignment with Olumegbon Family) are with or without Exhibit 4 (Ikeshoro Family Receipt) enough to confer valid title on the Respondent.

In the Respondent’s brief of argument also filed on 12/7/13, Mr. Ekundayo criticized the issues formulated by the Appellant on grounds of proliferation of issues from same grounds of appeal. He also urged the court to discountenance issue 5 distilled from Ground 8 of the Appellant’s Notice of Appeal as the issue was never raised at the trial Court and there was no decision of the trial Court on it. Being a fresh issue, learned counsel submitted that the Appellant cannot raise and argue the issue without the leave of the Court. He then proceeded to formulate the following issues for determination:

1. Whether the Trial Judge did not properly evaluate all the evidence led in proof of the respective titles of both the Appellant and the Respondent in arriving at a decision to grant the Respondent declaration of ownership and possession of the land as Claimed (Grounds 1, 2, 3 and 7).

2. Whether the Appellant’s defence to the claims of the Respondent was in respect of the land in issue. (Grounds 4, 5, 6 and 9).

3. Whether the Claimant/Respondent successfully proved title to 2 plots of land at the trial court. (Ground 1, Respondent’s Notice).

4. Whether the Respondent’s Exhibit 6 (Receipt of Ratification) and Exhibit 7 (Deed of Assignment with Olumegbon Family) are with or without Exhibit 4 (Ikushoro Family Receipt) enough to confer valid title on the Respondent. (Ground 2, Respondent’s Notice).

5. Whether the Claimant’s/Respondent’s witnesses require a Power of Attorney to give testimonies in support of the Claimant’s/Respondent’s case. (Ground 8).

Learned counsel for the Respondent is apparently under a misconception as to what is meant by proliferation of issues. Proliferation of issues means having more issues than the grounds of appeal. In the case of Mozie v. Mbanalu [2006] 15 NWLR (Pt. 1003) 466 @ 490, Tobi, JSC observed:
“…The appellants formulated eight issues for determination, while the respondents formulated four issues. I will not reproduce the twelve issues here. I do not have such space. But I have enough space to ask what are eight issues doing in an appeal that has only five grounds of appeal? This court has condemned proliferation of issues. As a matter of procedure, issues should not outnumber grounds of appeal. This is because issues are framed from one or more grounds of appeal, preferably more than one ground of appeal. The reverse position is the practice and it is that grounds of appeal outnumber issues. See generally Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646, Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Anon Lodge Hotels Ltd. v. Mercantile Bank of Nigeria Ltd. (1993) 3 NWLR (Pt. 284) 721.”

In this appeal there are 11 grounds of appeal, out of which the appellant formulated five issues. The problem consequently is not one of proliferation of issues. But the problem in my view is that the issues formulated by both sides are prolix and repetitive. I agree with learned counsel for the Respondent that issue 5 distilled from Ground 8 of the Appellant’s Notice of Appeal is incompetent as the point was never raised at the trial Court and there was no decision of the trial Court on it. Being a fresh issue and no leave was obtained; the Appellant cannot raise and argue the issue without the leave of the Court. Patrick Oforlete v. State (2000) 12 NWLR (Pt. 681) 415; Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Onyemaizu v. Ojiako (2010) 4 NWLR (Pt. 1185) 504.
I have carefully read the judgment of the trial court, the grounds of appeal and the issues formulated by the parties from the grounds of appeal and the Notice to contend. I am of the view that the only issue for determination in this appeal which encompasses all the issues formulated by both sides is whether the lower court properly evaluated the evidence adduced before it and correctly ascribed probative value to such evidence before arriving at its conclusions.

Before going ahead to consider this sole issue, it is necessary to consider preliminarily the pleadings upon which the case was tried.

The Respondent pleaded in his statement of claim that sometime in 1995 he bought the land in dispute situate at Thomas Estate Ajah, Lagos State containing an area of approximately 1352.173.865 square meters from Ikushoro Family and was issued a receipt dated 11th August, 1995. (Exhibit 4). He immediately erected a fence and a gate around the land. The Respondent averred that sometime in 2007, there was serious dispute between his vendor, other land owners and the Olumegbon Family in the whole of Ajah town which disrupted further development and construction activities on the land. After the problem was settled, the Respondent claimed it was discovered that the Olumegbon family had been declared as overlord of Ajah and that all those who bought land from any other family will have to ratify by paying ratification fees to Olumegbon Family. The Respondent paid the ratification fee to the family and a Deed of Assignment was executed for him by the Family. In 2009, the Respondent instructed his brother PW1 to commence building on the land and when he got to the land he found that the Appellant had trespassed on the land by demolishing a part of the fence wall and had started putting up a building on part of the land. All effort to settle the matter amicably failed. The Respondent claimed that the Olumegbon Family advised him to commence building on the vacant part of the land while the issue of the area the Appellant trespassed on will be resolved later. The Respondent averred that when construction was commenced, the Appellant with the help of the Police drove away the Respondent’s workers and seized all the building materials on the land. The Respondent consequently commenced this suit against the Appellant.

The Appellant on the other hand in his statement of defence emphatically denied the averments in the Statement of claim. He averred that he purchased the same two (2) plots of land in dispute situate at Mobolaji Ajibola Avenue, off Gilbert Odior Street, Thomas Estate from the same original land owning family of the area where the land is located – Ikushoro Family, Lagos State, one of the ten land owning families in Ajah vide receipt No. 0000021 (Exhibit “D6”) and Deed of Assignment dated 20th October, 1993 (Exhibit “D7”). He immediately constructed a fence and gate on the land as well as two wings Duplex building consisting of 5 bedrooms each without any disturbance from anybody. He averred that the Lagos State Government subsequently issued the Olokonla Chieftaincy Family of Ajah, one of the ten families of Ajah, Lagos State with a Certificate of Occupancy dated 29/12/06 registered as No. 49/49/2007 at the Land Registry Office, Alausa, Lagos State in respect of Block I covering an area of 3.375 hectares. Similar Certificates of Occupancy were issued to other families including the Ikushoro Family for other blocks in Ajah. On discovery that the land in dispute fell within Block “I” of the Lagos State Government allocation to the Olokonla Chieftaincy Family, the Appellant subsequently re-purchased the two (2) plots of land from the Olokonla Chieftaincy Family vide receipt No. 0000102 dated 15th February, 2007 (Exhibit “D8”). The Appellant denied that the Respondent fenced the land or installed a gate thereon. The Appellant denied that the Olumegbon Family had any interest in the land in dispute and that any ratification fee paid by the Respondent to them was paid to the wrong family.

I now come to the sole issue of whether the lower court properly evaluated the evidence adduced before it and correctly ascribed probative value to such evidence before arriving at its conclusions.

Learned counsel for the Appellant in his brief of argument submitted that the Learned Trial Judge erred in not evaluating the respective roots of title of the Appellant and Respondent as depicted in the exhibits tendered by the parties during trial especially the Respondents exhibits 4, 6, 7, 8 and 9 and the Appellant’s exhibits D1, D4, D5, D6 and D7 respectively and the evidence led by the parties with regards to which of the parties had a better title to the land which error occasioned serious miscarriage of justice against the Appellant.

Learned counsel for the Respondents in his brief of argument submitted that the case of the Respondent before the trial court was that the whole land in Ajah belonged to the Olumegbon Family as confirmed in the Supreme Court Judgment and the Terms of Settlement tendered and admitted at pages 157 – 165 of the Record of Appeal; that the Appellant did not claim he bought the land in issue from the Olumegbon Family and thus, the parties did not claim from a common root of title. Counsel submitted that it would be an exercise in futility for the trial judge to have undertaken a voyage of discovery in evaluating evidence as to the respective roots of title of both the Appellant and the Respondent. He argued that the Learned Trial Judge found for the Respondent that the defence of the Appellant was not on the land claimed by the Respondent and that the Appellant’s defence with respect to the claims of the Respondent is wanting in bona fide. Counsel submitted that the court did proper evaluation of the evidence placed before it by both parties vis-Ã -vis their respective roots of title.

I am in agreement with Learned counsel for the Appellant and he is absolutely right that the judgment of the lower Court is fundamentally flawed as the title of the parties were not evaluated and compared before the Learned Trial Judge granted claims i, ii and iv of the writ of summons and statement of claim. It is trite that where there has been improper evaluation of evidence by the trial court, the appeal court can intervene and re-evaluate the evidence. See AYORINDE v. AYORINDE & ORS (2011) ALL FWLR (PART 563) 1893 at 1928, B – C; MOGAJI v. ODOFIN (1978) 4 SC 91 and REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION v. JAMES (1988) 1 NWLR (Pt. 70) 301.

As submitted by counsel, the case of the Respondent vide clause 4 of the Respondent’s 1st witness statement on oath dated 11th December, 2009 at page 8 of the printed record is that the Respondent bought the land in dispute from the Ikushoro Family as per purchase receipt dated 11th August, 1995 (Exhibit “4”). On the other hand the evidence of the Appellant as per paragraph 3 of his witness deposition on oath at page 107 of the printed record is that the Appellant purchased the same two (2) plots of land in dispute situate at Mobolaji Ajibola Avenue, Off Gilbert Odior Street, Thomas Estate, Ajah, Lagos State measuring 1250.659 square meters and verged on Survey Plan No. KESH/LA/167/2001/130 (Exhibit “D5”) from the same Ikushoro Family, vide receipt No. 0000021 (Exhibit “D6”) and Deed of Assignment dated 20th October, 1993 (Exhibit “D7”). The title of the Appellant (exhibit D6 dated 20th October, 1993) preceded that of the Claimant (exhibit 4 dated 11th August, 1995) by a period of about two years and by virtue of this fact the Appellant had a pre-existing title to that of the Respondent over the land in dispute. The title of the Appellant over the land in dispute is further strengthened by the evidence of the Appellant’s 2nd witness on oath – Chief Ayoola Agborode who is the Secretary of the Ikushoro Family and confirmed as per paragraphs 3 and 4 of his witness depositions on oath at page 110 of the printed record that the Ikushoro family indeed sold the said two (2) plots of land in dispute to the Appellant vide a purchase receipt No. 0000021 (Exhibit “D6”) at page 114 of the printed record and Deed of Assignment dated 20th October, 1993 (Exhibit “D7”) at page 115 of the Record. The Appellant gave evidence vide his averments in paragraphs 5, 8 and 9 of his witness depositions on oath at page 107 of the Record to the effect that the Lagos State Government subsequently issued the Olokonla Chieftaincy Family of Ajah with a Certificate of Occupancy dated 29th December, 2006 registered as No. 49/49/2007 at the Lands Registry Office, Alausa, Lagos State (Exhibit “D1”) at page 117 of the Record in respect of Block I covering an area of 3.375 Hectares which is verged on survey plan LS/D/LA 1379 attached to the said Certificate of Occupancy and by virtue of paragraph 8 of the said witness deposition the Appellant stated that the land in dispute falls within Block “I” of the Lagos State Government allocation of the Olokonla Chieftaincy Family allocation as per the aforementioned Certificate of Occupancy No. 49/49/2007 and by paragraph 9 of the said depositions the Appellant stated that he subsequently re-purchased the two (2) plots of land in dispute from the Olokonla Chieftaincy Family vide receipt No. 0000102 dated 15th February, 2007 (Exhibit “D8”) at page 135 of the Record and the Appellant have been exercising ownership and possessory rights over the land in dispute. The Appellant’s second witness – Chief Ayoola Agborode in his evidence in chief on the 24th September, 2012 tendered a Composite plan which was admitted in evidence as exhibit “D4” at page 137 of the Record which specifically shows that the land in dispute falls within Block “I” of the Lagos State Government allocation of the Olokonla Chieftaincy Family allocation as per the aforementioned Certificate of Occupancy No. 49/49/2007 (Exhibit “D1”) at page 117 of the Record. I agree with learned counsel for the Appellant that by virtue of this fact the Appellant’s title is no longer solely rooted in the Ikushoro Family’s radical traditional title but also on the Olokonla Chieftaincy Family title which is the Certificate of Occupancy dated 29th December, 2006 registered as No. 49/49/2007 at the Lands Registry Office, Alausa, Lagos State (Exhibit “D1”). See DODO DABO v. ALHAJA IKIRA ABDULLAHI (2005) ALL FWLR (Pt. 255) Page 1039 at Page 1056, Paras C-D where it was held that on a claim based on a statutory right of Occupancy which confers exclusive possession, the Respondent need do no more than produce and tender the Statutory Certificate of Occupancy and show that same is over the piece of land in dispute. The Learned Trial Court did not consider this pre-existing title of the Appellant before granting claims No. i, ii and iv of the Respondent’s writ of summons and statement of claim.
The Respondent had claimed at the trial that DW1 – Chief Ayoola Agborode, the Secretary of Ikushoro Family of Ajah endorsed his receipt – exhibit 4 which claim was denied by Chief Agborode at the trial during cross examination. DW1 – Chief Agborode – the Secretary of the Ikushoro Family gave evidence at the hearing denying that the Ikushoro Family ever sold the 2 plots of land in dispute to the Claimant and confirmed the sale of the plots of land to the Appellant. The Appellant showed a better title over the two (2) plots of land in dispute than the Respondent. The Lower Court therefore erred when it held that the Respondent had properly established title as it failed to advert its mind to the fact that the Appellant established superior title to that of the Respondent with respect to the 2 plots of land in dispute The composite plan tendered by the Appellant – exhibit D4 showed that the Land in dispute falls within land vested by the Lagos State Government on Olokonla Chieftaincy Family vide exhibit “D1” – Lagos State Certificate of Occupancy dated 29th December, 2006 and registered as No. 49/49/2007 which is at pages 117-125 of the Record of Appeal. The Appellant also tendered a receipt dated 15th February, 2007 – Exhibit D8 evidencing the purchase of the two (2) plots of land from the Olokonla Chieftaincy Family thereby connecting the Appellant’s title to the Lagos State Certificate of Occupancy dated 29th December, 2006 and registered as No. 49/49/2007 – exhibit D1. The Terms of Settlement and Consent Judgment in Suit No. LD/21/87 and Judgment of the Supreme Court in Suit No. SC.148/1997 pleaded by the Respondent in his Reply brief are irrelevant and inapplicable to the two (2) plots of land in dispute in this case as there was nothing in the judgments showing that the lands therein are the same as the land in dispute in this appeal.
The lower court had set out the deficiencies in the Respondent’s documents of title at page 234 of the printed Record in the following words:

“Claimant’s Exhibit 4 is the receipt of the payment of N380,000.00 for 2 plots of land by the Ikushoro Family on 11th August, 1995 and signed by the Secretary Chief M. A. Agborode who incidentally testified for the Defendant as DW1 and denied his signature on Exhibit 4. This has obviously put the Claimant in a difficult position thus making his reliance on Exhibit 4 detrimental to his case. Furthermore, Exhibit 7 tendered by the Claimant in proof of his case is a “Deed of Agreement dated 9th September, 2009 between Olumegbon Chieftaincy Family and himself showing payment of N380,000.00 in respect of “ALL THAT PIECE and parcel of land . . . on Survey Plan No. ASC/575/97 dated 25th May, 1997 drawn by Surveyor P.A. Ogunbadejo”. The quoted Survey Plan in this Exhibit 7 is none other than Exhibit 3 also tendered by the Claimant which shows only one plot. It is quite instructive to note that Exhibit 3 was prepared on 25th May, 1997 while Exhibit 4 was purportedly issued on 11th August, 1995 i.e. about 2 years before Exhibit 3. Consequently, it is clear that both Exhibits 3 and 7 were made much later than Exhibit 4 and these both show that all that the Claimant paid for was one plot. It is therefore not a wonder that DW1, the alleged author of Exhibit 4 showing payment for 2 plots denied its authorship. Therefore it does not need much stretch of imagination to conclude that the Claimant has woefully failed to prove ownership of anything more than one plot of land in the area in dispute. The receipt of ratification with the Olumegbon family for N1M (One Million Naira) on 9th March, 2005 in Exhibit 6 is supposed to be premised on Exhibit 4. The date on Exhibit 4 however shows that same was issued after the purported ratification. The said ratification therefore falls flat with or without Exhibit 4 and cannot on its own confer any title on the Claimant on two plots of land as claimed by the Claimant.”

With the above devastating blow to the documents of title tendered by the Respondent, it defies comprehension that the learned trial judge would turn round to hold that the Respondent discharged the burden of proof of ownership of the land entitling him to judgment on his Reliefs i, ii and iv. The learned trial Judge in evaluating the evidence led by the parties ought to have considered whether the Respondent was able to establish his title through one of the five ways of proving ownership of land in Nigeria. They are:
1. By traditional evidence.
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extended over a sufficient length of time numerous and positive enough to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See the following cases: Idundu v. Okumagbe (1976) 9-10 SC 227; Omoregbe v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Mogaji v. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt. 7) 393; Ezeoke v. Nwaigbo(1988) 1 NWLR (Pt. 72) 616; Fasaro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Salami v. Lawal (2008) 14 NWLR (Pt. 1108) 546.

“I must also not fail to note that the defence of the Defendant in this case is not on the land being claimed by the Claimant which land is on Emman Amechi Street, Thomas Estate, Ajah, Lagos but rather on two plots of land situate at Mobolaji Ajibola Avenue, off Gilbert Odior Street, Thomas Estate, Ajah Lagos. The lands are therefore different one from the other so that the burden of proof on the Claimant to prove ownership of the land captioned by Exhibit 3 has been discharged while the defence of the Defendant does not discharge the burden of proof on the specific land at Emman Amechi Street in dispute but rather pleads his defence on 2 different lands entirely. His defence on the land in dispute is consequently wanting in bona fide and I so hold.”

What I understand the learned trial Judge to be saying is that because the Respondent’s description of the land he is claiming is different from the Appellant’s description of his own land, then the Respondent has discharged the burden of proof on him while the Appellant’s defence failed. I agree with Mr. Henry Omu for the Appellant that the learned trial judge fell into a serious misconception of the law and misdirected himself by basing the court’s judgment on the purported differences in the address of the land in dispute in the Respondent’s survey plan exhibit 3 and the Appellant’s survey plan exhibit D5 as well as the differences in beacon numbers on the Respondent’s survey plan and the Appellant’s survey plan. The truth is that from the pleadings and the evidence led by the parties, there was no dispute as to the location of the land. In the Respondent’s Exhibit 7, Deed of Assignment between him and the Olumegbon Chieftaincy Family the address of the land was stated as along Mobolaji Ajibola Avenue, Thomas Estate, same as the address in the Appellant’s survey plan. Even the evidence of the witnesses of the Respondent confirms the consensus between the parties as to the identity of the land in dispute. The two witnesses stated in their evidence that there are three plots of land; that the Respondent owns two of the plots while the Appellant owns one. They also admitted that the Appellant has twin duplex on the land. The Appellant and his sole witness in their evidence confirm also that there are three plots and that two are in dispute. The learned trial judge erred in his conclusion that the Respondent’s land is different from the one being claimed by the Appellant. It is equally perplexing that the learned trial judge relied on the difference in the beacon numbers in the Respondent’s survey plan and that of the Appellant in arriving at the conclusion that the Respondent’s land is different from the one the Appellant was defending. It is certainly not unusual for survey plans of the same land drawn by two different surveyors for two different parties to have different beacon numbers. At any rate these issues were not raised by any of the parties.
In the case of LAMULATU SHASI & ANOR v. MADAM SHADIA SMITH & ORS (2010) ALL FWLR (Pt. 513) 1231 at 1242 Paras F-G cited by the Appellant, the Supreme Court stated that the duty of the Court is to consider the case before it in the light of the parties complaints. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. The learned trial judge did not make proper use of the opportunity of seeing and hearing the witnesses at the trial. He drew wrong conclusions from accepted credible evidence and his findings are not supported by the evidence adduced at the trial. The conclusions of the trial judge are indeed perverse.

The guiding principles for appellate Courts to ascertain whether or not findings of facts of trial Court are perverse have been laid down in so many judicial authorities. In Otukpo v. John & Anor. [2012] 3 MJSC (Pt. II) 139, the Supreme Court held that where the finding or non-finding of fact by a trial court is questioned on appeal, the appellate court will seek to know the following:
a. The evidence before the court;
b. Whether the trial court accepted or rejected any evidence upon the correct perception;
c. Whether the trial court correctly approved the assessment of the evidence before it and placed the right probative value on it;
d. Whether the trial court used the imaginary scale to weigh the evidence in either side;
e. Whether the trial court upon the preponderance of evidence appreciated which side scale weighed having regard to the burden of proof.

The learned trial judge did not consider or evaluate the evidence and facts he should have considered in a claim of title to land. What the learned trial Judge should have done is to evaluate the evidence led by the parties as to root of title to see whether the Respondent was able to discharge the burden on him to prove title to the land in dispute through the documents of title he tendered in evidence. The learned trial judge in his erroneous holding that the Respondent proved his title to one plot of land went ahead to grant the Respondent declaration of ownership, injunction and possession of land measuring 1325.173 square meters under reliefs i, ii and iv which was a claim for two plots of land. The Respondent being aware of the flaws in the decision of the lower court filed a Notice of intention to contend that judgment be affirmed on grounds other than those relied on by the lower court. The grounds were:
1. That the Respondent successfully proved his title to 2 plots of land measuring in total 1325.173 square meters.

But the documents tendered by the Respondent did not prove his title to the 2 plots of land in dispute. The basis of the Respondent’s root of title is Exhibit 4 the Ikeshoro Family Receipt for purchase of the land, which turned out to be defective as the date on it showed that it was issued after the purported ratification. More importantly the Secretary to the Ikeshoro Family who the Respondent claimed signed Exhibit 4 denied signing it and gave evidence which the Respondent did not effectively challenge that the two plots of land in dispute were sold by the Family to the Appellant.

Without Exhibit 4 which the Respondent claimed is his root of title giving rise to Exhibits 6 and 7, Exhibits 6, receipt for ratification and 7 Deed of Assignment by Olumegbon Family cannot stand. I agree with the submissions of learned counsel for the Appellant that in view of the numerous definite findings of the lower court to the effect that the Respondent has only been able to prove ownership of one plot out of the two plots of land in dispute, there was no justification in granting the Respondent declaration of title to the two plots of land in dispute. The decision did not flow from the evidence accepted by the court and is to that extent perverse. In the case of Are v. Ipaye (1990) NWLR (Pt. 132) 298 the Supreme Court held that the evaluation of evidence and findings of facts are within the province of the trial court and that an appellate court will only interfere if such evaluation and findings are perverse and show a misapprehension of the facts. I have no doubt whatever that the evaluation and findings of the trial court in this case show a misapprehension of the facts and are therefore perverse. This appeal consequently succeeds. It is hereby allowed. The judgment of Dada J. in suit No LD/2101/2009 delivered on the 22nd day of January 2013 is hereby set aside. In its place the suit is dismissed with N30,000.00 costs in favour of the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, JCA, with which I agree with these few words by way of emphasis.

It is clear from the evidence in the record of appeal that the identity of the disputed piece of land was not in issue. The parties knew the disputed piece of land. None of them made the identity of the piece of land an issue. They knew what they were fighting for. As held in the case of Dosunmu v. Joto (1987) 4 NWLR (Pt. 65) 297 at 311 per the judgment of Oputa, JSC, (now blessed memory) –
“… the expression land in dispute must inevitably mean a piece of land claimed by a plaintiff as his/her own which same piece of land is also claimed by a defendant as his/her own. It takes two to have a quarrel and it takes two parties claiming the same piece of land to have a land dispute between them”.
Having not made the identity of the piece of land an issue, the court below was wrong to have drawn a battle line between the parties with respect to the identity of the disputed piece of land vide Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 230.

Also, ascribing different names by the parties to a piece of land does not effect the identity of the disputed piece of land vide Adomba and Ors v. Odiese and Ors (1990) 1 SCNJ 135.

Accordingly, I too find substance in the appeal and hereby allow it and abide by the consequential order(s) contained in the lead judgment.

OSARUGUE ABIMBOLA OBASEKI-ADEJUMO, J.C.A.: I have read the lead judgment of my learned brother Chinwe Eugenia Iyizoba, JCA and I agree with her lucid reasoning and conclusions therein except to emphasis that;
From the main relief in the lower court
“A declaration that the claimant is the owner and entitled to the statutory right of occupancy on the land situated at Thomas Estate Aja, Eti-Osa Local Government Area of Lagos State containing an area of approximately 1352.173 square meters more particularly delineated and shown on Survey Plan No. ASC/LA/575/97 dated 25/05/1997, drawn by F. A. Ogunbadejo a licensed surveyor a prime facie case that he is the owner”

It was a claim for title simpliciter and the law is trite that in proof title to land, the test set down by the Supreme Court in several authorities must be followed; history of title documents must be evaluated, and compared with the other contending party’s title i.e. the root title.
See IDUNDUN v. OKUMAGBE [1979] 9-10 SC 140; ONWUKA & ORS v. MICHAEL EDIALA & ANOR [1989] NWLR (Pt. 96) 182; SALAMI & ANOR v. LAWAL [2008] 14 NWLR (Pt. 1108) 546 (SC).
1. Traditional history of ownership;
2. Where the evidence in (1) above is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and;
3. Where (2) above fails, proof of exclusive possession without possession, and if not customary title, then the following;
4. Production of documents of title duly authenticated and executed;
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See ADEGBITE v. OGUNFAOLU & ANOR (1990) 7 SC (Pt. II) 123, DURU & ANOR v. NWOSU (1989) 4 NWLR (Pt. 113) 24, MOGAJI & ORS v. CADBURY NIG. [1985] 2 NWLR (Pt. 7) 393.
The onus is therefore on the Defendant under Section 145 of Evidence Act, 2011 to rebut, if he must avoid judgment for the plaintiff.

From the evidence adduced, it’s clear that the Appellant purchased the (2) two plots via Exhibit D6 in October 20, 1993 from Ikushoro family and went a step further to have a legal link with the later Certificate of Occupancy dated 29/12/2006 issued by Lagos State Government to Olokanla Chieftaincy Family of Aja, when he re-purchasing the (2) two plots from them vide Exhibit 8 on 15th February, 2007 and continued exercising acts of ownership and possessory right over the land in dispute by fencing and erecting a gate. More also, the land falls within the government allocated scheme block I covered by Certificate of Occupancy issued. (Exhibit D1).

When compared with the root title of Respondent who bought in 1995 via Exhibit 4 on 11th August, 1995 from the same Ikushero family simpliciter, who later lost to Olokanla Chieftaincy family, the Appellant has shown a stronger title and secured one at that, so to speak.

Therefore, the lower court failed to trace the root of title carefully and to evaluate same but based its reason on wrong premises, the lower court in reaching its decision clearly went outside issues not known to prove the land ownership in laid down precedents. Having faulted the title of the respondent the learned trial judge went on to hold that respondent had discharged the burden of proof.
It cannot be allowed to stand.

For this and other reasons contained in the lead judgment I too allow the appeal, and set aside the judgment of Dada, J. of Lagos High Court delivered on 22nd January, 2013 Suit No: LD/2101/2009, I abide by consequential orders in the lead judgment and is struck out.

Appearances

Henry E. Omu Esq. For Appellant

AND

O. Oshikoya Esq. For Respondent