NNAMDI EBO v. PIUS ANADI
(2011)LCN/4770(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of August, 2011
CA/E/12/2009
RATIO
PLEADINGS: WHETHER WHERE A TRIAL IS CONDUCTED ON THE BASIS OF PLEADINGS, ALL RELEVANT ALLEGATIONS IN THE PLEADINGS MUST BE PROVED BY EVIDENCE
Where a trial is conducted on the basis of pleadings, all relevant allegations in the pleadings must be proved by evidence, and such evidence must be in line with the pleading. In other words, the Plaintiff has to prove his case as pleaded and must prove the truth of the contents of the paragraph of the pleading in support of the reliefs sought in order to obtain judgment. If the Plaintiff fails to prove his case on the pleading to the satisfaction of the court, his case crumbles. See Alamieyeseigha v Iganiwari (No.2) (2007) 7 NWLR pt 1034 page 524. PER ABDU ABOKI, J.C.A
ADMITTED FACTS: WHETHER EVIDENCE ON ADMITTED IS RELEVANT AND NECESSARY
When a fact is pleaded by the Plaintiff and admitted by the Defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted. See Bungie v. Gov. River State (2006) 12 NWLR pt.995 page 573. PER ABDU ABOKI, J.C.A
DECLARATION OF TITLE TO LAND: WHETHER THE THE WEAKNESS OF THE DEFENDANT’S CASE WILL THE PLAINTIFF, WHERE THE PLAINTIFF FAILS TO DISCHARGE THE ONUS PLACED ON HIM IN A CLAIM FOR DECLARATION OF TITLE TO LAND
It is trite that where there is claim for declaration of title to land, the Plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case where the Plaintiff fails to discharge the onus placed on him, the weakness of the Defendant’s case will not help him and the proper judgment is for the defence. See Madubuonwu v. Nnalue (1999) 11 NWLR pt 628 page 673. Onisaodu v. Elewuju (2006) 13 NWLR pt.988 page 507 Otanma v. Yondubagha (2006) 2 NWLR pt.964 page 337 Tukuru v Sabi (2005) 3 NWLR pt.913 page 544. Gbadamosi v. Dairo (2001) 11 WRN 129. Duke v. Okoloedo (1999) 10 NWLR pt.623 page 359. Itauma v. Akpe-Ime (2000) 7 SC (Part 11) 24 at 30. Elema v. Akengua (2000) 6 SC (Part 111) 26 at 29 – 30. Ezi v. Atasie (2000) 6 SC (Part 1) 214. PER ABDU ABOKI, J.C.A
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROVING THAT THE PERSON IN POSSESSION IS NOT THE OWNER
By virtue of the provisions of section 146 of the Evidence Act whenever the question of ownership of a thing is in issue, the person in possession is presumed to be the owner of the thing. Therefore in order to displace a party in possession, a claimant has to show that the pary in possession is in possession without his consent or his tenant. See Jinadu v Esurombi – Aro (2005) 14 NWLR pt 994 page 142. The burden of proving that the person in possession is not the owner is on the person who affirms that he is not the owner. See Okhuarobo v. Aigbe (2002) 9 NWLR pt 771 page 92. PER ABDU ABOKI, J.C.A
STANDARD OF PROOF: STANDARD REQUIRED TO PROVE AN ALLEGATION OF CRIME IN A CIVIL PROCEEDING
The state of the law is that where in a civil proceeding an allegation of crime is in issue, such allegation of crime must be proved beyond reasonable doubt. See section 138 (1) of the Evidence Act. Arowolo v. Ifabuyi (2002) 4 NWLR pt.757 page 396. PER ABDU ABOKI, J.C.A
Before Their Lordships
AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria
MOHAMMED L. TSAMIYAJustice of The Court of Appeal of Nigeria
ABDUL ABOKIJustice of The Court of Appeal of Nigeria
Between
NNAMDI EBO
(For himself and on behalf of Matthew Orakwe Ebo family of Obikporo village, Onitsha)Appellant(s)
AND
PIUS ANADI
(For himself and on behalf of Raphael I. Anadi family)Respondent(s)
ABDU ABOKI, J.C.A, (Delivering the Leading Judgment): This appeal arose from the decision of J. I. Nweze J of the High Court of Anambra State sitting at Onitsha delivered on the 30th day of October, 2006. The brief facts of the case are as follows:-
The Appellant’s father late Matthew Orakwue Ebo was the original lessee of No. 9 in block 13 of Modebe family layout, Onitsha by virtue of a Deed of Lease dated on the 10th of October, 1946 and registered as No. 31 at page 31 in volume 731 on the Lands Registry, Lagos now at Awka. The said Appellant’s father did not prepare any building plan and did not build on it until he decided to transfer the property to the Respondent’s father late Raphael Anadi in 1950.
After receiving his consideration for the transfer, he took the Respondent’s father to the Modebe family of Onitsha for the transfer of the land to him whereat the said Modebe’s family asked the Respondent’s father to pay the transfer fee of 12 pounds:-, which he did by sending his agent Mr. Wilfred Ezeani to effect the payment.
The Respondent’s father there upon prepared a building plan which was approved on the 29/4/54 in his name. He erected a building thereon to the specification in the said plan whereupon he was granted the certificate of occupancy thereof on 22/9/54 to the knowledge of the Appellant’s father and the Modebe family.
The Appellant’s father was among the guests at the opening ceremony of the house, broke the kolanuts and prayed for the long life of his host. The Respondent’s father moved in and occupied the building until he died in 1956 and the Appellant’s father who sold the land to him did not disturb his heirs and tenants before he died in 1958.
In 2002, the Modebe Enterprises Limited had mistakenly posted a demand notice to the original lessee, the Appellant’s father and the Appellant thereat discovered that his father was the original lessee of the property.
The Appellant went to the Land Registry at Awka, obtained a certified true copy of the Deed of Lease and without searching for details from the Modebe family instituted an action in 2002 claiming as follows:-
Wherefore the Plaintiff claims from the Defendant as follows:-
“a. A declaration that the Plaintiff is entitled to the statutory right of occupancy over the property situate and being at No.704 Modebe Avenue, Onitsha otherwise known as Plot No. 9 in Block 13 Modebe Layout, Onitsha
b. N100,000,000 (one Hundred Million naira) being general damages for trespass’
c. An order of perpetual injunction restraining the Defendant, his servants, agents, privies and otherwise from further acts of trespass on the said property situate at No.104 Modebe Avenue, Onitsha.
d. An order that the Defendant account to the Plaintiff all the rent collected by him or his agent(s) from the said property situate at No.704 Modebe Avenue Onisha from the date of his father’s death until the date of judgment”
The learned trial judge after hearing the case on both sides dismissed the Appellant’s claim and entered judgment in favour of the Respondent in terms of his counter claim. Dissatisfied with the decision of the trial court, the Appellant appealed to this court
The Appellant later filed a Brief of Argument dated and filed on 17th August 2009 but deemed filed on 23rd June 2010. The Appellant reply brief is dated 1st September 2010 but filed on 3rd September 2010. He urged the court to set aside the decision of the trial court.
From the four grounds of Appeal, the Appellant distilled two issues for determination which reads as follows:
“1. Whether considering the totality of evidence before it, the trial court was right in holding that the Appellant’s father sold or transfer his interest in the land in dispute to the Respondent’s father (Grounds 1 and 4).
2. Whether in the circumstances of this case, it could rightly be said that the Plaintiff’s action has been statute barred as held by the trial court (Ground 2 and 3),”
The Respondent on his part filed a Respondent Brief dated 19th July, 2010 but filed on 23rd July 2010, urging the court to dismiss the Appeal and to affirm the decision of the trial court.
The Respondent from the four grounds of appeal filed by the Appellant formulated three issues for determination of this appeal and they are reproduced thus:-
i. Whether the respondent’s father surreptitiously and fraudulently stole into the land in dispute in 1954
ii. Whether considering the totality of evidence before it, the learned trial court was right in holding that the Appellant’s father sold or transferred his interest in the land in dispute to the Respondent’s father.
iii. Whether in the circumstance of this case, it could rightly be said that the Appellant’s case has been statute – barred as held by the trial judge.
I prefer the issues as formulated by the Appellant and same are adopted for the determination of this Appeal.
ISSUE 1
Whether considering the totality of evidence before it the trial court was right in holding that the Appellant’s father sold or transfer his interest in the land in dispute to the Respondent’s father.
Where a trial is conducted on the basis of pleadings, all relevant allegations in the pleadings must be proved by evidence, and such evidence must be in line with the pleading. In other words, the Plaintiff has to prove his case as pleaded and must prove the truth of the contents of the paragraph of the pleading in support of the reliefs sought in order to obtain judgment. If the Plaintiff fails to prove his case on the pleading to the satisfaction of the court, his case crumbles. See Alamieyeseigha v Iganiwari (No.2) (2007) 7 NWLR pt 1034 page 524.Paragraphs 1, 2, 3 and 5 of the Statement of Claim as contained on page 1 of the record of Appeal are pertinent and are reproduced as follows:-
“1. The Plaintiff is the owner in possession of the property situate and being at No.104 Modebe Avenye, Onisha otherwise known as Plot 9 in Block 13 Modebe Layout, Onitsha which he inherited in accordance with Onisha Native law and custom from his late father Matthew Orakwue Ebo who died in 1956, as his only son,
2. The Plaintiff’s father obtained a lease of the said land in 1946 from the Modebe Family of Obikporo village, Onitsha and they entered into a lease agreement dated the 10th day of October, 1946 registered as No.31 at page 31 in volume 731 of the land registry in the office at Lagos which will be founded upon at the trial.
3. The Plaintiffs’ father built a house thereon but the Defendant who was a toddler at his father’s death did not know that property was acquired by his father. Likewise his mother was not told by her husband that he acquired the said land and built a house thereon, it was only in the year 2002 when Modebe Enterprises Limited wrote a letter signed by the Head of the Modebe Family addressed to the Plaintiff’s father and the letter of rental review was directed to the Plaintiff did he know that he owns the property in dispute. The said letter from Modebe Enterprises Ltd and document in proof of the Plaintiff’s birth will be founded upon.
5. Unknown to the Plaintiff his sister and mother, the Defendant’s father surreptitiously and fraudulently moved into the said property which has been subsequently claimed by the Defendant who alleged he inherited it from his father in accordance with native law and custom.”
The Respondent in paragraph 3 of their Statement of Defence at page 4 of the record of Appeal admitted paragraph 2 of this Plaintiff’s Statement of Claim.
When a fact is pleaded by the Plaintiff and admitted by the Defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted. See Bungie v. Gov. River State (2006) 12 NWLR pt.995 page 573.The Respondent having admitted paragraph 2 of the Appellant’s Statement of Claim, the onus now squarely rest on him to prove his own root of title, that the Appellant’s father sold or transfer his interest in the property to his own father as he alleged in his statement of defence. See Jallco Ltd. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR pt.391 page 534 at 545.
The case of the Respondent is presented on paragraphs 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 18 of the Amended Statement of Defence at pages 7 – 9 of the Record of Appeal and same are reproduced for ease of reference as follows:-
“4. As admitted by the Plaintiff himself the speculation started when an employee of Modebe Enterprises Limited mistakenly directed a letter of demand to the original lessor of Plot 9 block 13 of the Modebe Layout,
6. After acquiring the disputed property from the Modebe family in 1946 Plaintiffs late father Mr. O. O. Ebo said that property in 1950 to the Defendant’s father late Raphael I. Anadi for the purpose of helping to train his younger relations overseas.
7. After his conditions for transferring the property were fulfilled Plaintiff’s late father took Defendant’s late father to the Modebe family and informed them about his decision to transfer his land to him.
8. The Modebe family then demanded a transfer fee of twelve pounds which Defendants father paid through his cousin Wilfred Ezeani and the Modebe family issued a receipt dated 22/9/50 to that effect The original of this receipt is in possession of the Defendant who will found on it at the trial of this case, ft was issued in the name of Wilfred Ezeani who made the payment but clearly on the face of it, it is for the transfer of Plot 9 Block 13.
9. Plaintiff’s late father also handed over his documents of title to Defendant’s late father including the original receipt with which he paid the last annual rent in respect of that property dated 22/5/47. The Defendant retrieved this receipt from one of his father’s files and will found on it at the trial of this case.
10. The Defendant will at the trial satisfy the court that the twelve pounds paid in by Wilfred Ezeani for Defendant’s father to Modebe family was sufficient to meet all the financial requirements of the transfer.
11. The Defendant will at the trial lead evidence to show his father’s undisputed acts of possession and ownership in respect of the disputed property since 1950.
12. In 1954 Defendant’s father prepared a building plan in his own name submitted it to the Onisha town Council for approval and the said plan numbered as 248/54 was duly approved on 29/4/54 when the town Clerk Mr. Onuora Ikeme placed his signature thereon, This approved plan will be founded upon at the trial of this case.
13. The Defendant’s father erected a bungalow in accordance with that approved plan and on 22/9/54 the said town clerk and his Health Superintendent issued a Certificate of Occupancy to the Defendant’s father who moved into physical occupation of the building, He paid the annual rent to the Modebe family for 1954 as well as conservancy fee for 1954. The Certificate of Occupancy and those two receipts will be founded upon at the trial. The Certificate of Occupancy of Plot 9 block 13, the approved plan for the building thereon the above mentioned receipt for 12 pounds:-, were also retrieved from Defendant’s late father’s file.
14. Plaintiff’s late father was among the guests at the opening ceremony of the disputed house, He broke the kolanuts and poured libation for the peaceful occupation of the place by his host, the Defendant’s father. The Defendant watched the occasion as a child and states that the Plaintiff he has seen in court looks very much like his late father.
15. But for the brief period of the Nigerian Civil War the Defendant’s family has been in peaceful and undisturbed occupation of the building by themselves or through rent paying tenants from 1954 till date.
18. And apart altogether from Defendant’s clear entitlement to the property in dispute, Plaintiff’s claim is, in addition, statute barred and this is hereby specifically pleaded, The Defendant’s father look lawful possession of the premises in dispute in 1954 and the Plaintiff started laying adverse claim to it in 2002 as this is clearly stated in the Statement of Claim,”
DW1 testified on behalf of the Respondent at pages 18 – 21 of the record of Appeal and said inter alia as follows:-
“Raphael Anadi was my late father. I know the Plaintiff. I also know the property situate at Plot No 9 block 13 of the Modebe Layout, Onitsha. It is my father’s property. In 1946 Modebe Enterprises sold land to Matthew Ebo, In 1950 Matthew Ebo sold the land to my late father Raphael Anadi, He took my father to the Modebe family for transfer and change of ownership to my father. They told my father that he has to pay 12 pounds for the transfer. My father paid the money, He paid it through his cousin Witfred Ezeani. In 1954 my father had a building plan prepared for him with which he started and completed the building in 1954, In the same year, he moved into the premises with a Certificate of Occupancy. In 1956, my father died. On his death we discovered some files in his cupboard. We found some documents in the file. The document includes the receipt of transfer to my father. We also saw receipt for the Certificate of Occupancy as well as the building plan. We also found other receipts of payments of the yearly rent to the Modebe estate.
…………………………….
……………………………..
My father died in 1956, In 1958, Mathew Ebo died. From 1967 my elder brother who is the Defendant on record has been paying the annual rent to the Modebe family up to 2001 which is a period of 40 years.
…………………………
…………………………
Under cross – examination, the witness said
“I was born on the & day of June 1952, It is not true that Matthew Ebo did not sell the land to my father in 1950 even though f was not yet born,”
Q. What is the nature of the interest your father acquired on the land?
A. My father acquired a leasehold interest for 99 years, over the land, The Plaintiff? father also had a leasehold interest of 99 years from Modebe family in 1946. In 1950 the term of lease had only 95 years to run. On the death of my father my elder brother and the Defendant continued with the payment of the annual rent. He was making payment both in his own name and in my father’s name,
Q. The receipt you submitted to this court were fraudulently obtained by you and your brother and not genuine,
A. It is not true. The building plan and Certificate of Occupation is not fraudulently obtained…”
The evidence of DW2 Pius Anadi is at pages 21-25 of the Record of Appeal is essentially a repetition of what DW1 told the court except for answers he gave to questions put to him during cross examination at pages 22-25 of the Record of Appeal which are very relevant to this appeal and they are reproduced as follows:-
“…Thereafter my father arranged a party to mark the opening of the house. Mr. Matthew Ebo attended the Party and blessed my father over kolanut saying that he will live in the house till his ripe old age, In 1956 my father died.
………
………
In 1958, Matthew Ebo died. Since his death, we have not had any problem in the land in dispute till 2002. I know Matthew Ebo very well. He looked like his son Nnamdi Ebo who is the Plaintiff in this case’. Since 1961-2001, I have been paying rent to the Modebe family in respect of this land in dispute.”
The receipt for the payment he made to Modebe family were admitted in evidence through him as Exhibits D1 – D7. The witness further said that the Plaintiff only started claiming the land because the Modebe family in error wrote a demand notice to them. The Plaintiff he said felt that he had discovered his father’s lost land.
Under cross-examination DW2 told the court that his father lived in the house in dispute before he died and that he started living there in 1954 and that the Certificate of Occupation was issued to him on the 22nd of August 1954. DW2 further said in answer to question about his age, said that he was born in 1943 and he was 9 years when the land was sold to his father and that he was very conscious and aware when his father paid the Plaintiffs father in 1950.
DW2 in further answer to cross examination said
“My father and Matthew Ebo were close friend. He told my father that they wanted to sponsor one of their relations abroad. He asked if he could sell the land to my father to raise the money. That was why my father bought the land. The transaction took place at Oranye Street. It was not in writing. In those days agreement are oral and is considered, I am aware of the formal Deed of Lease between the Modebe family and the Plaintiff’s father in 1946, After the sale, Matthew Ebo took my father to the Modebe family, That was why my father paid 12 pounds as transfer fee, I am not aware that the Modebe family does all their transaction in writing, I don’t know if Matthew Ebo gave my father the Deed of Lease between the Modebe family and himself. I have the receipt with which Matthew Ebo paid the last rent to Modebe family as well as the receipt for transfer of ownership as proof of the transaction between my father and Matthew Ebo. Matthew Ebo asked my father to continue paying the ground rent,”
In answer to further cross examination at page 25 of the Record of Appeal, DW2 said thus:
Q. All the documents you tendered in this court are forgeries
A. Not at all,
Q. There was no transaction with respect to the property between your father and the Plaintiff’s father.
A. Matthew Ebo sold the land to my father. I told this court the truth,
It is observed that the Appellant’s case at the trial court was centered on his claim that all the documents tendered by the Respondent were all forgeries. The Appellant who testified as PW1 said during his evidence-in-Chief at page 37 of the Record of Appeal thus:-
‘After my father’s death, the Defendant fraudulently and surreptitiously entered the land in dispute. The Defendant’s father and the Defendant knows that my father owned the property. They were aware of Exhibit P1, They knew the property was unattended to when my father died and they surreptitiously took over the land.
……………………………………………………………….
……………………………………………………………….
Exhibit P2 was not written in error and was not a mistake. It was addressed to my family house. My father did not alienate the land in dispute to anybody. My father did not sell the land in dispute to the Defendant’s father in 1950 to enable him help his siblings.”
The Appellant on page 38 of the record of Appeal claimed of that Exhibits D1, D2, D4, D7, D8, D10, D11 and D12 were all fraudulently obtained. Infact he said in answer to questions put to him under cross examination as follows:-
“Q. 22 Bright Street Onisha referes to Mr. Anadi? residence while Plot 9 Block L referred to the
property in dispute (that is looking at Exhibit D8)
A. I don’t know but I know the document is fraudulently obtained.
Q. Who committed the fraud on the plan Exhibit 8?
A. It was by the defendants father and possibly the Defendant himself that fraudulently obtained the document.
a. From whom?
A. I don’t know from where there is a bonafide owner lo every other document is forged.
When he was further asked under cross examination as to who committed the fraud on the plan Exhibit D8’, he answered as follows:-
a. You said Exhibit D8, D9 and D12 were fraudulently obtained?
A. Yes
A. They were on their faces obtained between 1950 and 1954 that is the date shown on them.
A. Exhibit D12 is dated 22/9/50
Exhibit D9 is dated 19/9/54
Whilst Exhibit D8 bears the date 29/4/54.
Q. Your father died in 1958
A. Yes.
Q. All the documents were made in your father’s lifetime
A. They were all fraudulently obtained. I don’t know when they were obtained but whenever they were obtained they were fraudulently obtained.”
PW2 is Azubuike Ibegbu a son of James Chike Ibegbu of Umuaseli village Onitsha, who worked with the Modebe family estate as a draftsman. He was to identify the handwriting and signature of his father from certain documents tendered as Exhibits before the court. He only said he is a civil servant but did not disclose the nature of his work or his office and did not say he was a hand writing exparte. His testimony was not at all useful to the case of the Appellant.
PW3 Willy Ikeoma worked for the Modebe Enterprise as an Estate Inspector in charge of overseeing this estate generally. He said he worked for the Modebe family from 1994 – 2002 and that he did not work there from 1946 to 1954. All he told the court were his opinion. He did not indicate the source of such opinion. He knew nothing about what happened in the Modebe family estate during the period 1946 – 1954. The evidence of PW3 like that of PW2 is also not useful to the case of the Appellant.
It is trite that where there is claim for declaration of title to land, the Plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case where the Plaintiff fails to discharge the onus placed on him, the weakness of the Defendant’s case will not help him and the proper judgment is for the defence. See
Madubuonwu v. Nnalue (1999) 11 NWLR pt 628 page 673.
Onisaodu v. Elewuju (2006) 13 NWLR pt.988 page 507
Otanma v. Yondubagha (2006) 2 NWLR pt.964 page 337
Tukuru v Sabi (2005) 3 NWLR pt.913 page 544.
Gbadamosi v. Dairo (2001) 11 WRN 129.
Duke v. Okoloedo (1999) 10 NWLR pt.623 page 359.
Itauma v. Akpe-Ime (2000) 7 SC (Part 11) 24 at 30.
Elema v. Akengua (2000) 6 SC (Part 111) 26 at 29 – 30.
Ezi v. Atasie (2000) 6 SC (Part 1) 214.However in support of the pleadings of the Respondent DW4, Emmanuel Okomayin who works with the Modebe Enterprises Ltd as the estate manager said;-
“I started my testimony on 29th of June, 2006. I asked for time to look into the archieves. I have now done so. I have seen the document marked ID/4. It is a receipt issued by the Modebe family to Matthew Ebo. I confirm that as a fact.”
DW4 continues.
“I have seen this document marked ID/3. I can confirm that it is a receipt from the Modebe family for transfer fee, annual rent and agreement free in respect of the plot in dispute. We have it in our records and that is why I can confirm its authenticity.”
DW4 continues:
“I have seen Exhibit D2 to D7 already in evidence in these proceedings, I confirm that they are receipt from the Modebe family for the payment of annual rent on the property in dispute. We have them in our records. From the records available in our office we have been collecting annual rent from the Defendant because he is the bonafide owner of the property.”
In answer to some questions put to the witness under cross examination, the answers of DW4 are as follows:-
Q. Do you know the type of transaction in respect of the land in dispute?
A. From our record, it was clearly stated that there was a transfer from the father of the Plaintiff Matthew Orakwe Ebo to the Defendant’s father. Matthew Orakwe Ebo was the original lessee. He subsequently transferred it to the father of the Defendant I did not see any agreement but as I explained earlier, there was a receipt of transfer of this particular land. That was what was obtained then. The parties to the transfer will come to the family, explain their mission and hereafter pay the fees for the transfer of that was what they came for. The family issued a receipt to the transferee,
Q. The Modebe family wrote a letter to Matthew Ebo for a revision of the lease.
A. The letter was addressed to him in error as the pen on who wrote it referred to the original tenancy. We have checked every other document in the records. All other letter were addressed to the Defendant except this isolated letter which was even written in error.”
By virtue of the provisions of section 146 of the Evidence Act whenever the question of ownership of a thing is in issue, the person in possession is presumed to be the owner of the thing. Therefore in order to displace a party in possession, a claimant has to show that the pary in possession is in possession without his consent or his tenant. See Jinadu v Esurombi – Aro (2005) 14 NWLR pt 994 page 142.
The burden of proving that the person in possession is not the owner is on the person who affirms that he is not the owner. See Okhuarobo v. Aigbe (2002) 9 NWLR pt 771 page 92.The claim of the Plaintiff has been that as the only son of his father Matthew Orakwe Ebo, the property in dispute which he claims was owned and built by his father devolved on him upon the death of his father but that the Defendants father surreptitiously went into the land and took over without the consent of the Appellant.
In the instant case, the Defendant’s family took possession of the premises in dispute since 1954 and the Plaintiff started laying adverse claim to it in 2002.
This act of long possession and enjoyment of the premises in dispute by the Defendant’s family is in my opinion a prima facie evidence of ownership or of their right to occupy and enjoy quiet possession of the premises in dispute. See
Oyadare v. Keji (2005) 7 NWLR pt.925 page 571,
Maskala v. Silli (2002) 13 NWLR pt.784 page 216.The Appellant had pleaded that the documents presented by the Respondent in support of his case were all forgeries. The state of the law is that where in a civil proceeding an allegation of crime is in issue, such allegation of crime must be proved beyond reasonable doubt. See section 138 (1) of the Evidence Act. Arowolo v. Ifabuyi (2002) 4 NWLR pt.757 page 396.In the instant case the Appellant had the burden duty to prove his allegation of forgeries and fraud beyond reasonable doubt and this the Appellant has been unable to do.
The claim of the Appellant being for declaration of title to a statutory right of occupancy over the property situate and being at No. 104 Modebe Avenue, Onitsha otherwise known as Plot 9 Block 13 Modebe Layout, Onitsha.
The state of the law is that in a declaratory action, the onus of proof lies on the plaintiff and he must succeed on the strength of his own case and not on the weakness of the defence except where the case of the defence supports the Plaintiff’s case. See
Dike v, Okoloedo (1999) NWLR pt 623 Page 359 at 271
Uche v. Eke (1998) 1 NWLR pt 564 page 24
Abasi v. Ondo(1998)5 NWLR pt 548 page 59
Nkwo v. Ibo (1998) 7 NWLR pt 558 page 354
Aromere v. Awoyemi (1972) All WLR 105.
In Jolayemi & Ors v. Alaoye & Anor. 18 NSCQR 682 at 703, it was held as follows:-
“I realize that the Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at lease prima facie, in order that a necessity of the Defendant to confront the case made may arise”‘
In the instant case the Appellant having based his title to the premises in dispute on a grant of lease made to his father by the Modebe family, he has a duty to call a member of the said Modebe family or their successor in title to prove his root of title. See
Faheniun Ofume v. Issac Ngbeku (1994) 4 NWLR pt.347 page 746.The Appellant had not discharged this burden. There was nobody from the Modebe family or current official of the Modebe Enterprises conversant with the issue in dispute who came forward to testify on behalf of the Appellant. All the witnesses invited by the Appellant as I have earlier observed were not conversant with the matter in dispute, their evidence were their personal opinion, which is not relevant to the determination of the dispute.
However the Respondent invited PW4 Emmanuel Okomayin who works with the Modebe Enterprises Ltd as the Estate Manager. He gave his testimony after looking into the archives. He confirmed that all the documents tendered by the Respondent which were issued by the Modebe family Enterprises were authentic and genuine. It is the evidence of the witness DW2 under cross examination that from their record it was clearly stated that there was a transfer from the father of the Appellant Matthew Orakwe Ebo to the Respondent’s father. He said that Matthew Orakwe Ebo was the original lessee but that he subsequently transferred it to the father of the Respondent late Raphael Anadi. He said that though he did not see any agreement but that as he explained earlier, there was a receipt of transfer of the particular land and that, that was what was obtained then.
DW4 further in his testimony said that the letter for a revision of the lease was addressed in error to Matthew Ebo, as the person who wrote it referred to the original tenancy. The witness said they checked every other document in the records and that all other letters were addressed to the Respondent except the isolated letter which was written in error.
The Respondent established before the trial court strong and superior evidence of title to the premises in dispute couple with the fact that from 1954 to 2002 the Respondent’s family have been in possession and occupation of this said premises situate and being at No. 104 Modebe Avenue, Onitsha otherwise known as Plot No. 9 in Block 13 Modebe Layout Onitsha.
The trial court made a finding on the issue of title of the premises in dispute at page 90 of the Record of Appeal as follows:-
“On the issue raised herein I have found that Exhibit D12 is authentic and was made in 1950. I have also found that the house on the land was built in 1954 by the Defendant’s father. These were all in the lifetime of Matthew Orakwe Ebo. There is no evidence that he ever challenged the Defendant’s father. I therefore believe the Defendant, who was an eye witness that Matthew Ebo was
‘At the house opening party in 1954 and blessed his father over kolanut. The only reasonable conclusion to be drawn from all these is that the late Matthew Ebo had sold or transferred his interest in the land in dispute known as Plot 9 Block 73 of the Modebe Layout to the Defendant’s father.”
In the instant case, the trial court has properly evaluated and ascribed probative value to the evidence presented by both parties before it and justifiably appraised the facts, this court will not interfere with the finding of the trial court in the face of such overwhelming mountain of evidence. See
Agbi – Ogbeh (2006) 11 NWLR pt 990 page 65.
Fagbenro v. Arobadi (2006) 7 NWLR pt 978 page 174.
Adebayo v. Adesei (2004) 4 NWLR pt 862 page 44
State v. Ajie (2000) 7 SC (pt.1) 24.
Sha v. Kwan (2000) 5 SC 178.The Appellant having not led sufficient and credible evidence to establish his claim for a declaration of title to the property in dispute, the trial court was correct and proper to have dismissed his claim for want of sufficient evidence. See Remi v INEC (2005) 6 NWLR pt 920 page 56.
This issue is resolved in favour of the Respondent.
ISSUE 2
Whether in the circumstances of this case it could rightly be said that the suit has been statute – barred as held by the learned trial judge.
The issue of this action being statute – barred was pleaded in paragraph 18 of the Defendant Amended Statement of Defence at page 9 of the Record of Appeal wherein he averred as follows:-
“18, And apart altogether from Defendant’s clear entitlement to the property in dispute, Plaintiff’s claim is in addition, statute – barred and this is hereby specifically pleaded. The Defendant’s father took lawful possession of the premises in dispute in 1954 and the Plaintiff started laying adverse claim to it in 2002 as this is clearly stated in the Statement of Claim,”
The Defendant in his counter claim also sought for a declaration thus:-
“The Defendant adopts all the averments in the Statement of Defence and hereby counter claims against the Plaintiff as follows:-
(a) ……………………………………………..
(a a) ……………………………………………..
(b) A declaration that the Plaintiffs claim is statute – barred.
(c) ……………………………………………..
(d) ……………………………………………..
It is trite that a legal right to enforce an action is not perpetual right, but a right generally limited by statute. Therefore a cause of action is statute – barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law or Act has elapsed. See Adeosun v. Jibesin (2001) 14 WRN 706.In the instant case the Appellant pleaded and led evidence to the effect that it was only in the year 2002 that he discovered his right of ownership and what he termed the Respondent’s fraudulent trespass with respect of the property in dispute. He contended that in the circumstances, therefore the time for the purposes of limitation started running in 2002 when the Appellant discovered his right over the property and Respondent’s fraudulent acts of trespass which culminated in this suit. He submitted therefore that the action is not statute barred.
It is submitted on behalf of the Appellant that the law is that there cannot be acquiescence without knowledge by the party, of the act which constitutes an infringement to his title, and that until he becomes aware of such act, he cannot be said to have slept in his right. The court was referred to the case of
Oshodi v. Imorn (1936) WACW 93.
Oshodi v Balogun (1936) WACW 1.
It is also argued on behalf of the Appellant that ever if the time began to run in 1954 during the lifetime of the Appellant’s father and wrongly stated by the learned trial judge, he should have at the same time taken into consideration the undisputed fact that the Appellant’s father died in 1958 when his right of action would not yet have become extinguished, and while the Appellant was only a toddler and was, like other members of his father’s family, not aware that his father owned the property. It was argued that in such circumstances and in light of the cases of Nwosu v. Offor (1997) 2 NWLR pt 487 page 274 at 281,Sanni v. Akene L. G. (2005) 74 NWLR pt 94 page 60 at 74-75.
It was argued that it would be wrong to hold that the action is statute barred.
The Respondent had a different opinion as to when the cause of action in this matter occurred. It was argued on behalf of the Respondent that the submission of the Appellant can not be correct on the face of the fact as found by the trial court that Respondent’s father’s possession of the property in dispute was to the knowledge of and with the consent of the Appellant’s father. It is argued that this must mean that there was no fraud in the occupation of the Respondent’s thereof and that section 42 of the Actions law of Anambra State does not apply to the facts of the case.
It is contended on behalf of the Respondent that the case of Woherem v. Emereuwa (2004) 13 NWLR pt 890 page 398 cited by the Appellant does not apply in a case where pleadings were settled and evidence fully heard by the court to enable it decide whether the case is statute – barred. It is argued that in the case of Woherem v. Emereuwa (supra) the issue in the suit being statute barred was raised in limina while in the instant case the learned trial judge after full hearing based his decision that the Appellant’s case was statute – barred on the strength of the evidence before him particularly the plan of the building Exhibit D10 and certificate of occupation thereof Exhibit D9.
It is argued on behalf of the Respondent that the learned trial judge did not merely base his decision on the date of limitation as pleaded by the Respondent but on his findings thereon after full hearing. The court is urged to dismiss the Appellant’s Appeal by holding that the Appellant’s suit in the High Court was statute barred on the authority of the cases of
Egbe v. Adefarasin (1987) 1 NWLR pt.47 page 1
Obiefuna v. Okoye (1961) 1 SCNLR 144
Araka v. Ejagwu (2000) 15 NWLR pt 692 page 684.
Generally, a cause of action accrues on the date on which the incident giving rise to the cause of action arose. A statute of limitation begins to run from the moment the cause of action arose. For the purpose of instituting an action in court and begins to run from the date of the cause of action accrues. See Okenwa v. Military Governor Imo State (1996) 6 NWLR pt 507 page 154 at 167.
In determining the period of limitation, the court is to look at the time the cause of action arose and compare it with when the writ of summons was filed. This can be ascertained without taking oral evidence from a witness. If the time of the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Okenwa v. Military Governor Imo State (supra). Military Administrator Ekiti State v. Alediyelu (2007) 14 NWLR pt.1055 page 619,
F. R. I. N. v. Gold (2007) 11 NWLR pt.1044 page 1 at 18, 20 and 30, Ondeko v. U.B.N. Plc (2005) 4 NWLR pt 916 page 440, Egbe v, Adefaransi (1987) 1 NWLR pt 47 page 1 at 20.
A cause of action is defined as a fact which when proved would entitle a Plaintiff to a remedy against a Defendant. See
A. G. Federation v. Abubakar (2007) 10 NWLR pt 104 page 1.
Nicon Insurance Corp. v. Olowofoyeku (2006) 5 NWLR pt 873 page 244.
S. P. D. C. v. X M Federal Ltd. (2006) All FWLR pt 339 page 822.
Asaboro v. Pan Ocean oil (Nig) Ltd. (2006) 4 NWLR pt 971 page 595.
Nwokedi v. Egbe (2005) 9 NWLR pt 930 page 293.
Mobil Oil Plc. v. D.E.N.R. Ltd (2004) 1 NWLR pt 853 page 142.
A. G. Federation v. ANPP (2004) FWLR Pt.190 page 1458.
Messrs NVScheep v. The MV S Araz (2000) 12 SC (part 1) 164
Oduntan v. Akibu (2000) 7 SC (part 11) 106.
Agbanelo v. Union bank of Nigeria Ltd. (2000) 4 SC (pt 1) 233
Emiator v. Nigeria Army (1999) 12 NWLR pt 631 page 362.
It is settled law that the statute of limitation does not apply in cases of cancealed fraud so long as the party defrauded remains in ignorance of the fraud without any fault of his. See Arowolo v. Ijabiyi (2002) 4 NWLR pt 757 page 356.
Nwosu v. Ofor (1997) (supra).
Section 42, Actions Law Cap 3, Laws of Anambra State 1991,
The period of limitation is also extended in the case of disability of a Plaintiff either from infancy or unsoundness of mind.
In U.B.A. v. BTL Ltd (2006) 19 NWLR pt.1013 page 67 at 112 and 126. It was held that where the wrongful act of Defendant has been fraudulently concealed, the right of action in respect of that act accrues only when the Plaintiff becomes aware of the wrong act of the Defendant. In the case of Administrator/Executive of Estate of General Sani Abacha (deceased) v. Eke – Spiff & Ors (2003) 1 NWLR pt.800 page 114, the court in describing the meaning of fraud for the purpose of limitation laws stated that ‘fraud in the con of limitation laws does not necessarily involve moral turpitude nor is it used in the common law sense. It is sufficient if what was done was unconscionable. It is used in the equitable sense to denote conduct by the Defendant or his agent such that it would be against conscience for him to avail himself of lapse of time. See Adimora v. Ajufo (1988) 3 NWLR pt.80 page 1 at 13.It has been argued on behalf of the Appellant that without any recourse to the statement of claim the trial court chose to rely on the Defendant/Respondent’s averments at paragraphs 12, 13 and 15 of the Statement of Defence in deciding when the course of action accrued and when time began to run for the purpose of limitation. It was argued on behalf of the Appellant that this is totally wrong and the law does not allow same. The court was referred to the case of Woherem v Emereuwa (2004) 13 NWLR pt 890 page 398 at 476 where the Supreme Court held as follows:-
“It is not permissible, indeed it would be wrong for a Defendant relying on the defence of limitation of action to compute time of accrual of cause of action from the date pleaded in the Statement of Defence as the date the cause of action arose, unless such date is admitted by the Plaintiff in his reply to the Statement of Defence.”
It is contended on behalf of the Appellant that no where in the Appellant’s reply to the Statement of Defence did he admit the averments or dates stated at paragraphs 12, 13 and 15 of the Statement of Defence. The Appellant it is argued rather denied same yet the learned trial judge based his decision that the Appellant’s claim was statute barred on same.
I have earlier said in this judgment that the appellant at the trial court has alleged forgery and fraud against the Respondent but has not been able to prove the criminal allegations. I have also held that the witnesses called by the Appellant did not put up a good showing and that their testimonies were only their personal opinion and were not helpful to the case of the Appellant. The Respondent on his part had called DW2 Pius Anadi who in his testimony at pages 22 – 25 of the Record of Appeal which has earlier been reproduced in this judgment has been reproduced. The relevant part that absolves the Respondent of some of the charge of fraud and surreptitiously entering into the premises in dispute are again highlighted thus:-
“…Thereafter my father arranged a party to mark the opening of the house, Mr. Matthew Ebo attended the party and blessed my father over kolanut saying that he will live in the house till his ripe old age. In 1956 my father died.
………………………………
In 1958 Matthew Ebo died, Since his death, we have not had any problem in the land in dispute till 2002.”
It is the evidence of DW2 that his father lived in the house in dispute before he died and that he started living there in 1954 and that a certificate of occupation was issued to him on the 22nd of August 1954.
DW2 said further that his father and Matthew Ebo the Appellant’s father were close friends and that Matthew Ebo sold the land to his father to sponsor a relation abroad. He said that the transaction took place at Oranye Street Onitsha but that it was not in writing. The witness said that in those days agreements were oral and were considered.
It is the evidence of DW2 that after the sale, Matthew Ebo took his father to the Modebe family. He said that that was why his father paid 12 pounds as a transfer fee. The witness also said that Mr. Matthew Ebo gave his father the last rent receipt issued by the Modebe family and that he has the said receipt as well as the receipt for transfer of ownership as proof of transaction between his father and Matthew Ebo.
The Appellant in his testimony before the trial court as PW1 said at page 37 of the Record of Appeal that after his father’s death, the Defendant fraudulently and surreptitiously entered the land in dispute. He said that the Defendant’s father and the Defendant all know that his father own the property. He said that they knew that the property was unattended to when his father died and that they surreptitiously took over the land. He said that Exhibit P2, the letter of revision of rent was not written in error or was a mistake when it was addressed and sent in2002 to his father. He insisted that his father did not sell the land in dispute to the Defendant’s father in 1950 to enable him help his siblings.
It is worthy of note that the Respondent father died in 1956 while the Appellant’s father died in 1958.
It is not in dispute that when both the Appellant and Respondent’s father were alive, the Appellant’s father did not protest the occupation of the land in dispute and even when the Respondent built a structure on the disputed land he was not challenged by the Appellant’s father.
It is in evidence that the Appellant’s father was present at the party staged by the Respondent’s father to open the house. In fact it was in evidence that the Appellant’s father prayed on a kolanut for the Respondent’s father long life in the house until he reached his ripe old age. If the allegation of the Appellant were to be true in 1954 when the Respondent’s father was opening the building he put up on the disputed land, that would have been the time to launch his protest against the trespass to the land, but he did not. This is an indication that the land was not his having sold it to the Respondent’s father. The cause of action arose in 1954 but no action was taken by the person whom the Appellant now says own the land. The Appellant told a lie when he said that the respondent’s father and the respondent surreptitiously enter the land in dispute and took over when his father died. There is an undisputed evidence that the father of the Respondent died two years earlier before the death of the Appellant’s father.
It is inconceivable how a person from the world of the dead people will leave his grave to surreptitiously take over a piece of land in world of the living people.
The Appellant was no doubt dishonest and fraudulent in his allegation and claim. I am strengthen in my believe by the evidence of DW4 Emmanuel Okomayin an Estate Manager with the Modebe Enterprises Ltd who told the court that he had looked into archives of Modebe family enterprises to confirm the authenticity and existence of certain documents which the Appellant claimed were forgeries or a fraud.
DW4 told the court that when he started his testimony on the 29th June 2006 he asked for time to took into the archives and that he had now done so. He confirmed to the court the authenticity of exhibit D2 -D7, D11 and D12. He also told the court in answer to a question put to him under cross examination that from their record, it was clearly stated that there was a transfer of the land in dispute from the father of the Appellant Mr. Matthew Ebo to the father of the Respondent late Raphael I Anadi and that a receipt for the transfer was issued by the Modebe family. He said that from the record in their office, they have been collecting rent from the Respondent because he is the bonafide owner of the property. He said that Matthew Orakwe Ebo was the original lessee but that he subsequently transferred the lease to the father of the Respondent.
The witness said that the letter written to the Appellant which triggered this litigation was written in error as the person who wrote it referred to the original tenancy. That he had checked every other document in their record and all other letters were addressed to the Respondent except this isolated letter which was even written in error.
The trial court made a finding on the issue whether from the circumstance of the case the suit has been statute barred. It held in its judgment on page 91 of the Record of Appeal as follows:-
“Even if I am wrong in my conclusion that the Plaintiff’s father sold or transferred his interest in the land to the Defendant’s father the fact remains that it was in 1954 that the Defendant’s father build and occupied the land in dispute. This was in the lifetime of the Plaintiffs father. If the Defendant’s father was a trespasser on the land, time began to run in 1954. This suit was filed in 2002 about 48 years later. The Plaintiff has argued that time should start to run in 2002 when he discovered that the land belongs to his father. He cannot be right. The Defendant’s father had moved into the land in 1954 with the knowledge of the Plaintiff’s father. I have not been shown what he did in 1954 which amounted to a fraud on the Plaintiff. Section 42 of the Actions law has no application to the fact of his case. I hold that this case is statute – barred. This case is therefore not maintainable at the instance of the Plaintiff See
Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1.
Obiefuna v. Okoye (1961) 1 SCNLR 74
Araka v. Ejeagwu (2000) 15 NWLR (pt.692) 684.”
I am also in agreement with this finding of the trial court that the Appellant’s father during his life time saw the father of the Respondent put up a building on the disputed land and occupied same in 1954. If the Respondent’s father was a trespasser on the land the cause of action arose in 1954 and time started to run from that time for the purpose of instituting any action against the supposed trespasser but not until 2002 a period of 48 years later that the Appellant instituted this action at the lower court. The Respondent’s father into the land in dispute in 1954 with the knowledge of the Appellant’s father. The Appellant at the trial court had not been able to establish anything fraudulent on the conduct of the Respondent’s father. I am also in agreement that section 42 of the Action law of Anambra State cap 3 Laws of Anambra State 1991, is not applicable to this suit.
This suit having commenced 48 years after the cause of action had arisen, it is without doubt statute – barred and the action filed by the appellant is incompetent. The trial court has no jurisdiction to entertain same. This issue is resolved in favour of the Respondent. On the whole this appeal lacks merit and it is hereby dismissed. The decision of the lower court delivered on 30/10/06 is hereby affirmed. N20,000 costs is awarded in favour of the Respondent.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Aboki, JCA, and I agree with him that the appeal lacks merit. He has dealt extensively with the issues at stake in this appeal, and I have nothing useful to add except to reiterate the point made. There is no question at all that the action filed at the lower Court was statute-barred.
To wait for 48 years, and expect the trial Court or any Court, in fact, to open its doors to them, and grant them any redress, is to ask for the impossible, and the trial Court, in my view, was right not to attempt the impossible, which will only open it to censure by this Court on appeal.
In the circumstances, the decision of the lower Court cannot be faulted by this Court in any way, and the end result is that I also dismiss the appeal. I abide by the orders in the lead Judgment, including costs.
MOHAMMED L. TSAMIYA, J.C.A.: I agree.
Appearances
C. N. MeboFor Appellant
AND
A. K. Ugwatu, A. Agwu and Livinus UgwatuFor Respondent
