ODUKOYA & ANOR v. AG., OGUN STATE & ORS
(2020)LCN/15486(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/IB/502/2017
RATIO
TITLE TO LAND: FACTS TO BE ESTABLISHED TO ESTABLISH THE TITLE OF A GRANTOR/VENDOR
The issue here is not whether or not CW3 witnessed the transaction between the 1st Appellant and Erule Ogunyanwo Family. Rather, it is whether CW3 was able to lead credible evidence on the root of title of the 1st Appellant’s grantors, the Erule Ogunyanwo Family. This is so because, in law, where a Claimant pleads and traces the root of his title to the land he Claims to a particular family or vendor (grantor), and such claim is disputed, he has the onus to proof his own title to the land and proceed to show how his grantor or vendor derived his own title to the land. To prove his own title, it will not be sufficient for such party to plead and tender documents of title, he must go further to establish by credible evidence that:
(a) the document is genuine or valid;
(b) it has been duly executed, stamped and registered;
(c) the grantor has the authority and capacity to make the grant;
(d) the grantor has in fact what he proposes to grant; and
(e) the grant has the effect claimed by the holder of the instrument.
Where any of the above listed conditions is absent, the claimant may not succeed in having title declared in his favour on the document produced and tendered. See Romaine v. Romaine (1992) 4 NWLR (pt.238) 65; Ayorinde v. Kuforiji (2007) 4 NWLR (pt.1024) 341; Dabo v. Abdullahi (2005) 7 NWLR (pt.923) 181 and Dosunmu v. Dada (2002) 13 NWLR (pt.783) 1.
It appears to me that the learned trial Judge was right in view of conditions (c) and (d) listed above. It is in view of those conditions that the law requires a person who pleads and tenders documents of title as the basis of his claim to title, to satisfy the Court that, the grantor or vendor who executed the document in his favour, had the authority and capacity to make the grant. This is because, a person has no authority to give what he does not have or own. The principle is nemo dat quod non habet, i.e; that a person cannot give that which he does not have. Based on that principle therefore, once a party pleads and traces the root of his title to land to a particular person or source, for him to succeed, he must not only establish his title to such land, he must also satisfy the Court as to the title of the person or source from whom he claims. The Claimant cannot totally ignore the validity of his grantor’s title, for it may turn out that such grantor, at all material times, had no title to convey to him. See Adekanye v. Grand Services Ltd (2007) All FWLR (pt.387) 871; Nruama v. Ebuzoeme (2006) 9 NWLR (pt.985) 217 at 234 – 235 paragraphs A – B; Otanma v. Youdubagha (2006) 2 NWLR (pt.965) 337; Bello v. Sanda (2012) 1 NWLR (pt.1281) 219; Adole v. Gwar (2008) 11 NWLR (pt. 1099) 562; Ngene v. Igbo & Anor (2000) LPELR – 1987 (SC) and Alli v. Alesinloye & Ors (2000) LPELR – 427 (SC). In Ngene v. Igbo (supra), the Supreme Court, per Iguh, JSC said:
“It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how this person or family derived his title to such land. Accordingly, the Plaintiff to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have….”
Again in the case of Ashiru v. Olukoya (2006) 11 NWLR (pt.990) 1, the Supreme Court categorically reiterated its position as follows:
“Where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the Claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the Claimant fails to discharge this onus, his claim must fail.”
In the instant case, there is no doubt that the title of the Appellants’ grantor was in dispute, the 1st & 2nd Defendants/Respondents having contested same by their paragraphs 1, 5, 6, 8, 11 and 12 of the Amended Statement of Defence of the 1st and 2nd Defendants/Respondents. This was also denied by paragraphs 2 and 3 of the 3rd Defendant/Respondent’s Statement of Defence and Counter-Claim. In the instant case, apart from pleading and leading evidence on how the 1st Appellant came to acquire title to the land in dispute from the Erule Ogunyanwo Family of Makun, Sagamu, Remo, Ogun State, the Appellants failed to plead and lead evidence on how the Erule Ogunyanwo Family came to acquire title to the parcel of land they sold to the 1st Appellant. In other words, the Appellants failed or neglected to plead and trace the root of title of their grantor or vendor. Having failed to discharge that burden their claim of title must fail; and same must suffer the fate of dismissal. I therefore hold that the learned trial Judge was right when he found and held that:
“…failure to trace the root of title is no doubt detrimental to the Claimants claim for declaration of title.” PER HARUNA SIMON TSAMMANI, J.C.A.
WORDS AND PHRASES: POWER OF ATTORNEY
Though the Appellants pleaded an Irrevocable Power of Attorney (Exhibit “M”), purportedly, as one of the documents of title, it is trite law that, a power of attorney is merely an instrument in writing whereby one person (the principal), appoints another as his agent. The document then confers power or authority on the agent to perform certain specified acts on behalf of the principal. Where the power of Attorney is expressed as being “irrevocable” it means that it will be irrevocable either by the donor (principal) without the consent of the donee (agent), or by the death, incapacity, bankruptcy, winding up or dissolution of the donor so long as the donee has interest or the obligation remains undischarged. It however does not operate as an instrument or document that confers title to a purchaser of land or other chattel. See Abubakar v. Waziri & Ors (2008) 6 – 7 SC. (pt.II) 82 at 106 and Ude v. Nwara (1993) 2 NWLR (pt.278) 638 at 665. PER HARUNA SIMON TSAMMANI, J.C.A.
TITLE TO LAND: BURDEN OF PROOF IN A DECLARATORY ACTION
It is the settled law that the burden of proof in a declaratory action rests squarely on the Plaintiff. To that end, to succeed, the Plaintiff must adduce cogent, credible and convincing evidence which must satisfy the Court that he is entitled to the declaratory relief sought. In doing that, the Plaintiff must rely on the strength of the evidence adduced by him and not on the weakness of the defence, even where admissions have been made by the defence. However, there may be circumstances where the Plaintiff may take the benefit of an aspect of the defence which supports his case. Ultimately however, the burden of proof in a declaratory action rests on the Plaintiff, the success of which will depend on the evidence adduced by him, for no declaration will be made in his favour in the absence of such evidence. See Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (pt.424) 252; Mbani v. Bosi & Ors (2006) 11 NWLR (pt.991) 400; Kazeem & Anor v. Mosaku & Ors (2007) LPELR – 1684 (SC) and Onovo & Ors v. Mba & Ors (2014) 14 NWLR (pt.1427) 391. Like in all civil cases, the burden will be discharged on a balance of probabilities or preponderance of evidence.
Generally in law, the onus of proof does not shift where declaratory reliefs are sought but rests always on the Plaintiff. That being so, he has to lead credible evidence to establish his claim because, a defendant who has not Counter-Claimed, has no onus to prove anything. It means therefore, that where the defendant has not Counter-Claimed, the onus on the Plaintiff is to first establish a prima facie case before a consideration of the defendant’s case will arise. Where the Plaintiff fails to adduce evidence, or the evidence adduced by him is unsatisfactory, he would have failed to discharge the onus cast on him, and his case will suffer the fate of dismissal. See Dim v. Enemuo (2009) 10 NWLR (pt.1149) 353; Oyedeji v. Oyeyemi (2008) 6 NWLR (pt.1084) 484; Adeleke v. Iyanda (2001) 6 SC.1 and Luke v. Rivers State Housing Authority (2010) 5 NWLR (pt.1188) 604. PER HARUNA SIMON TSAMMANI, J.C.A.
DUTY OF COURT: EVALUATION OF EVIDENCE
Where both parties have led evidence in the case, the duty of the trial Court is to evaluate and ascribe probative value to each piece of evidence placed before him. The trial Court will evaluate such evidence by first considering the Plaintiff’s case having in mind, the totality of the evidence adduced at the trial. He does that by weighing the evidence adduced by the parties on an imaginary scale of justice so as to see which side of the scale will preponderate. Where the scale of justice weighs in favour of the Plaintiff, judgment will be given in his favour but where it tilts in favour of the defendant, the Plaintiff’s case will be dismissed. In the process of evaluation of the evidence in order to determine which side of the scale of justice will preponderate, the Court will have regard to the following:
(a) whether the piece of evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible
(d) whether it is conclusive of the issue; and
(e) whether it is more probable than that given by the other party.
It is apparent therefore, that the evaluation of evidence by a trial Court, necessarily revolves around the reasoned belief of the evidence of one of the parties and the disbelief of the other; or a reasoned preference of the version of the case of one of the contending parties. The reasoning and conclusions of the Court must be predicated on the evidence adduced by the parties in proof of the facts pleaded by the parties. See Akintola v. Adegbite (2007) All FWLR (pt.372) 1891 at 1898; Adeyeye v. Ajiboye (1987) 1 NWLR (pt.61) 432 at 451; T. Delak Distribution Service Ltd & Anor v. Ugbowanko (2018) LPELR – 46480 (CA) and Ajagbe v. Idowu (2011) 17 NWLR (pt.1276) 422. In Akinbade & Anor v. Babatunde & Ors (2017) LPELR – 43463 (SC), my Lord, Okoro, JSC said:
“Evaluation of evidence entails the trial Judge examining all the evidence before him, before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other… Evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other…”
That being so, it is the trial Court that saw, heard and observed the demeanor of the witnesses that testified before it, that has the primary duty to evaluate and ascribe evidential weight to such evidence, including documentary evidence. Where the trial Court has dutifully, effectively and correctly evaluated the evidence, this Court, being an Appellate Court will not interfere with the findings and conclusions. It is only where the trial Court is found to have failed in its duty, that this Court will be compelled to interfere by re-evaluation of such evidence. See Lawal v. Dawodu (1972) 8 – 9 SC. 83 at 114 – 115; Amadi & Ors v. Nwanyinkwo & Ors (2012) LPELR – 19682 (CA) and Okonkwo v. Okonkwo (2010) 14 NWLR (pt.1213) 228. This Court will also interfere, where the findings of the trial Court are found to be perverse or has led to miscarriage of justice. Similarly, where the trial Court fails to evaluate the evidence at all or improperly did so, this Court will intervene and re-evaluate such evidence. See Abiodun v. State (2013) 9 NWLR (pt.1358) 138; Lagga v. Sarhuna (2008) 16 NWLR (pt.1114) 427 and Bunge v. Governor of Rivers State (2006) 12 NWLR (pt.995) 573. PER HARUNA SIMON TSAMMANI, J.C.A.
GROUNDS OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST RELATE TO THE GROUNDS OF APPEAL FROM WHICH THEY ARE DISTILLED
It is the law that, a party should relate the issues formulated to the Grounds of Appeal from which they are distilled. Accordingly, where an Appellant or a Respondent fails to relate the issues formulated to the Grounds of Appeal from which they are distilled, the Court is entitled to ignore such issues. See Aladeyelu v. Military Admin, Ekiti State (2007) 14 NWLR (pt.1055) 619; Aja v. Okoro (1991) 7 NWLR (pt.203) 260 and Surveyor Ekerele E. Etukudo & Anor v. Surveyor E. B. Akpan (2013) LPELR – 20414 (CA). PER HARUNA SIMON TSAMMANI, J.C.A.
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. PA G. O. ODUKOYA 2. G. O. ODUKOYA PROPERTIES LIMITED APPELANT(S)
And
1. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, OGUN STATE 2. BUREAU OF LANDS AND SURVEY, OGUN STATE 3. PREMIER STANDARD INDUSTRIES LIMITED RESPONDENT(S)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court of Justice, Sagamu Judicial Division, delivered on the 19th day of September, 2017 by A. Rotimi Balogun, J in Suit No: HCS/193/2012.
By a Writ of Summons and 3rd Further Amended Statement of Claim filed on the 28/6/2016, the Appellants as Claimants sought the following reliefs:
1. A Declaration that the Claimants are the beneficial owners entitled to apply for Certificate of Occupancy on all the piece or parcel of land situate, and being along Lagos/Ibadan Expressway, Aiyetoro Village, Sagamu Local Government Area of Ogun State and more particularly described in Plan No. AP.4048 dated 24th March, 1977 drawn by A. B. Apatira, Licensed Surveyor and later modernizing (sic) by Plan No. OG/7211/2004/059 dated 23rd of November, 2004 drawn by M.O.B. Aransiola, Registered Surveyor.
2. An Order setting the Certificate of Occupancy dated 3rd October, 2010 in respect of part of Claimants’ land shown and attached to the said Certificate of Occupancy.
3. An Order setting aside the Observations/Findings, Recommendation and Government views on the subject matter of this action as contained in paragraph (127) of the Ogun State of Nigeria Gazette No.29, Vol.37 of 19th July, 2012.
4. An Order restraining the 1st and 2nd Defendants from putting any effect to the aforesaid Gazette mentioned in paragraph 3 above.
The 1st and 2nd Defendants/Respondents filed a Statement of Defence on the 14/01/2013. The 3rd Defendant/Respondent also filed a Statement of Defence and Counter-Claim on the 10/1/2013. By the said Counter-Claim, the 3rd Defendant/Respondent claimed as follows:
(a) A Declaration that the 3rd Defendant/Counter-Claimant is the owner of all that piece of land as contained in the Survey Plan attached to the 3rd Defendant’s Certificate of Occupancy registered as Plan No.1, page 1, Volume 743.
(b) The sum of N2million being special and general damages for the Claimants’ act of trespass on the 3rd Defendant/Counter-Claimant’s vacant land.
The Claimants also filed a Reply to the Statement of Defence and Defence to the Counter-Claim.
The Appellants’ Claim in the Court below is that, the 1st Appellant purchased the parcel of land in dispute from the Erule Ogunyanwo family and was issued a purchase receipt dated the 04/4/1977 which was tendered in evidence as Exhibit “C”, and an irrevocable Power of Attorney (Exhibit “M”) dated the 01/12/1977. That after the purchase, the 1st Appellant was put into possession and later appointed are Rabiu Awobajo as Manager. That, he (1st Appellant) later started a block making business on the land and farmed on part of it. That the 1st Appellant then incorporated the 2nd Appellant in 1989 to take over the businesses on the land in dispute. It was then contended that the Appellants have been exercising various acts of possession and ownership on the land without any let or hindrance whatsoever from 1977 till June 2008 when the agents of the 1st and 2nd Respondents trespassed on the land, and destroyed all the structures on the land.
The case of the 1st and 2nd Respondents was that, the land in dispute was lawfully acquired by the Ogun State Government having observed due process of law and paid compensation to the original owners. The 3rd Respondent on the other hand, stated that he applied to the Ogun State Government for allocation of a parcel of land for industrial purposes. That, having complied with all conditions for the allocation, and paid all fees, it was allocated the land in dispute and a Certificate of Occupancy issued to it.
At the trial, the Claimants/Appellants called four (4) witnesses and tendered exhibits. The sets of 1st & 2nd Respondents and 3rd Respondent called one (1) witness each. After the close of evidence, counsel filed and exchanged Written Addresses, and in a well-considered judgment delivered on the 19/9/2017, the learned trial Judge dismissed the Claimants’/Appellants’ case and allowed the Counter-Claim. Unhappy with the judgment, the Claimants approached this Court vide Notice of Appeal filed on the 18/10/2017. The Notice of Appeal contains six (6) Grounds of Appeal.
The parties filed and exchanged Briefs of Arguments as demanded by the Rules of this Court. The Appellants’ Brief of Arguments was filed on the 22/01/2018. Five (5) issues were raised therein for determination as follows:
1. Whether having regards to the pleadings and evidence led thereon, the Claimants/Appellants did not prove title to the land subject matter of this action.
2. Whether the 1st and 2nd Defendants/Respondents proved at the Court below that notice of acquisition of Claimants’ land subject matter of this action was served on them.
3. Whether having regards to the pleadings and evidence adduced thereon, the Claimants could be said to have slept over their rights thus making it a smooth exercise for 1st and 2nd Defendants to grant Certificate of Occupancy in respect of Claimants’ land to the 3rd Defendant/Respondent.
4. Whether if the Trial Judge had considered and ascribed appropriate probative value to Exhibits “K1” to “K5” the scale of justice would not have tilted in favour of the Claimants/Appellants.
5. Whether having regards to the totality of the evidence led at the trial, the Counter-Claim of the 3rd Defendant/Respondent ought not to be dismissed by the learned trial Judge.
The 1st and 2nd Respondents did not file any Brief of Arguments. However, the 3rd Respondent filed a Brief of Arguments on the 20/3/2018. The 3rd Respondent formulated six (6) issues for determination as follows:
1. Whether the Appellants having purchased from and derived title from ERULE OGUNYANWO FAMILY OF MAKUN, SAGAMU REMO, OGUN STATE, the original landowners, are under the obligation to trace their predecessors root of title and lead traditional evidence thereon.
2. Whether the Appellants have duly proved the validity and due execution of Exhibits “C” and “M” as a foundation in establishing Exhibits “I”, “E”, “N”, “G” and “J”.
3. Whether having regards to the pleadings and evidence adduced thereon, the Claimants could be said to have slept over their rights, thus making it a smooth exercise for the 1st and 2nd Defendants (Respondents) to grant Certificate of Occupancy in respect of the subject matter of this appeal.
4. Whether, if the trial Judge had considered and ascribed appropriate probative value to Exhibits “K1” to “K5”, the scale of justice would not have tilted in favour of the Claimants/Appellants.
5. Whether the 1st and 2nd Defendants have led evidence to prove that the acquisition of the subject matter and the subsequent transfer of same to the 3rd Claimant was validly made.
6. Whether the 3rd Defendant is entitled to judgment as per its Counter-Claim.
I have noticed that neither the Appellants nor the Respondents tied the issues formulated by them to any of the Grounds of Appeal. It is the law that, a party should relate the issues formulated to the Grounds of Appeal from which they are distilled. Accordingly, where an Appellant or a Respondent fails to relate the issues formulated to the Grounds of Appeal from which they are distilled, the Court is entitled to ignore such issues. See Aladeyelu v. Military Admin, Ekiti State (2007) 14 NWLR (pt.1055) 619; Aja v. Okoro (1991) 7 NWLR (pt.203) 260 and Surveyor Ekerele E. Etukudo & Anor v. Surveyor E. B. Akpan (2013) LPELR – 20414 (CA).
I notice also that the 3rd Respondent formulated more issues than the Appellant. While the Appellant formulated five (5) issues, the 3rd Respondent formulated six (6). It is the law that though a Respondent may formulate issues for determination, he is not permitted to formulate more issues than the Appellant. He can only do that where he has filed a Cross-Appeal, or a Respondent’s notice. See Dr. Casmir Anyanwu v. Chief Okey Eze & Ors (2019) LPELR – 48740 (SC); Dairo v. F.R.N. (2012) 16 NWLR (pt.1325) 129 and Kalu v. Uzor (2006) 8 NWLR (pt.981) 66. That being so, the issues formulated by the 3rd Respondent are hereby discountenanced, he not having cross-appealed nor filed a Respondent’s notice. I now proceed with the appeal.
Now, arguing on issue one (1), learned counsel for the Appellants contended that, having regards to the pleadings and evidence adduced thereon, the Appellants had proved title to the land in dispute. That, the Appellants had pleaded and tendered the purchase receipt and an irrevocable Power of Attorney (Exhibits “C” & “M”) executed in favour of the 1st Appellant by the Erule Ogunyanwo family (the original owners of the land), in evidence. That the 1st Appellant was put in possession of the land since 1977 and had since been in occupation of the land until June, 2008 when the agents of the 1st & 2nd Respondents invaded the land and paralyzed the business of the Appellants. Learned Counsel then submitted that the learned trial Judge misunderstood the purport of the decision of the Supreme Court in Idundun v. Okumagba & Ors (1976) 9 – 10 S.C.227, which established the five modes of proving title to land.
Learned Counsel for the Appellants went on to submit that, it is not that a person claiming title to land must prove all the five modes of proving title. That, a Claimant may prove title by any of the five ways and that in the instant case, the Appellants relied on the 2nd, 3rd and 4th ways but did not plead any fact of traditional evidence as the basis of their claim. It was then contended that, the trial Court erred grievously when it held that the Appellants, though led evidence of purchase of the land, did not trace his title to one whose ownership of the land has been established. In other words, that the Appellants did not lead evidence to establish the title of the original owners of the land in dispute as required by law. The case of Adelakun v. Iseogbekun (2003) 7 NWLR (pt.819) 295 at 312 paragraph C was then cited to submit that, it is only when a party is relying on traditional evidence that he is required to trace his title to the original owner of the land.
It is also the argument of the Appellant that, it is the not the law that for a purchaser to succeed in an action, he must call his predecessor in title as a witness. That the document of purchase speak for itself and therefore, it is a mere surplusage if a party calls his vendor as a witness. That in any case, the title of the Erule Ogunyanwo family, the 1st Appellant’s Vendor has not been challenged by anyone. The cases of Contract Resources (Nig.) Ltd v. Wende (1998) 5 NWLR (pt.549) 234; Nwabuoku v. Otti (1961) 1 All NLR 487; Long John v. Blakk (1998) 6 NWLR (pt.555) 524 at 547 and Baba v. Nigerian Civil Aviation & Anor (1991) 5 NWLR (pt.192) 388) were cited in support, and to further submit that, it is not even the case of Respondents that the Erule Ogunyanwo family that sold the land in dispute to the 1st Appellant was not the owner of the land. That, the purchase receipt which is the Appellants’ document of title together with the Irrevocable Power of Attorney and the Survey Plan met the standard of acceptability as set-out in the case of Kayari v. Kali & Ors (2007) 11 NWLR (pt.124) 412 at 440. That what was required for the Appellants was to proof:
(a) Whether the document is genuine;
(b) Whether it has been duly executed;
(c) Whether the grantor had the capacity and authority to make the grant;
(d) Whether the grantor had in fact what he purported to grant; and
(e) Whether it had the effect claimed by the holder of the instrument.
It was thus submitted that, the documents of title of the Appellants (Exhibits “C” & “M”) were not faulted on any of the above stated conditions and therefore, the learned trial Judge was not justified in holding that the Appellants failed to prove title to the land in dispute. We were accordingly urged to hold that the Appellants have proved title to the land in dispute.
In response, learned counsel for the 3rd Respondent referred to paragraphs 5, 6, 7 and 8 of the Appellants’ 3rd Further Amended Statement of Claim to submit that, the basis of the Appellants’ claim is derived in purchase from the Erule Ogunyanwo family. That, the fact that the Erule Ogunyanwo family opted to employ a non-customary mode to evidence the sale does not negate the fact that it was a customary sale. The case of Basil v. Fajebe (2001) 11 NWLR (pt.725) 592 at 612 – 613 was cited in support. That the Appellants had always led the Court to believe that their right of title to the land in dispute was derived from a traditional sale. That having vehemently argued along that line, the Appellants should not be allowed to approbate and reprobate by arguing that the learned trial Judge erred in holding that the Appellants did not trace his title to one whose ownership of the land has been established.
Learned Counsel for the 3rd Respondent cited the case of Asebieko v. Morakinyo (2016) LPELR – 40865 (CA) to submit that, the Appellants were under the obligation not only to plead that the Erule Ogunyanwo family were the original owners of the land in dispute but how they came to own the land. That proof of land by traditional history being based on hearsay evidence, where the Plaintiff’s traditional evidence of such ownership is in conflict, this may render the traditional history unreliable. In other words, that failure to trace proper root of title is fatal. It was then submitted that, the learned trial Judge was right when he held that the Appellants were under an obligation to lead evidence of traditional history in proof of their predecessor’s title but failed woefully to do so.
Replying on points of law, learned counsel for the Appellants contended in the Appellants’ Reply Brief to the 3rd Respondent’s Brief of Arguments filed on the 09/4/2018, that for the avoidance of doubt, the Appellants relied on and tendered evidence of purchase as the basis for claiming ownership of the land in dispute. That, it is the law that address of counsel cannot be substituted for evidence led at the trial, and therefore, the mere mention of the phrase “traditional history” would not tantamount to the Claimant relying on traditional history as the basis of his Claim to ownership in land. That, nowhere in the pleadings and evidence of the Appellants was traditional history referred as the mode of the Appellants’ claim to title.
Learned Counsel to the Appellants went on to submit that, the Appellants merely traced the root of their title to the Erule Ogunyanwo Family who were the original owners of the land. Learned Counsel then cited the case of Olukoya v. Ashiru (2006) All FWLR (pt.322) 1479 at 1506 where the Supreme Court held that, where the title of a grantor is in issue, production of documents of title without more is not sufficient proof of title but insisted that, in the instant case, the title of the Erule Ogunyanwo family was not in issue. Furthermore, that the Appellants did not rely on traditional history as the basis of their claim, therefore, they had no burden of tracing the root of title of their Vendor. That, in the instant case, the Appellants did not only rely on title documents but also acts of ownership and possession of the land. We were accordingly urged to resolve this issue in favour of the Appellants.
Now, a careful perusal of the claims of the Appellants, particularly relief 1, of the Claimants/Appellants 3rd Further Amended Statement of Claim would show that the main claim of the Claimants/Appellants is declaratory in nature. The other reliefs sought are therefore dependent on the success of the declaratory reliefs sought. It is the settled law that the burden of proof in a declaratory action rests squarely on the Plaintiff. To that end, to succeed, the Plaintiff must adduce cogent, credible and convincing evidence which must satisfy the Court that he is entitled to the declaratory relief sought. In doing that, the Plaintiff must rely on the strength of the evidence adduced by him and not on the weakness of the defence, even where admissions have been made by the defence. However, there may be circumstances where the Plaintiff may take the benefit of an aspect of the defence which supports his case. Ultimately however, the burden of proof in a declaratory action rests on the Plaintiff, the success of which will depend on the evidence adduced by him, for no declaration will be made in his favour in the absence of such evidence. See Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (pt.424) 252; Mbani v. Bosi & Ors (2006) 11 NWLR (pt.991) 400; Kazeem & Anor v. Mosaku & Ors (2007) LPELR – 1684 (SC) and Onovo & Ors v. Mba & Ors (2014) 14 NWLR (pt.1427) 391. Like in all civil cases, the burden will be discharged on a balance of probabilities or preponderance of evidence.
Generally in law, the onus of proof does not shift where declaratory reliefs are sought but rests always on the Plaintiff. That being so, he has to lead credible evidence to establish his claim because, a defendant who has not Counter-Claimed, has no onus to prove anything. It means therefore, that where the defendant has not Counter-Claimed, the onus on the Plaintiff is to first establish a prima facie case before a consideration of the defendant’s case will arise. Where the Plaintiff fails to adduce evidence, or the evidence adduced by him is unsatisfactory, he would have failed to discharge the onus cast on him, and his case will suffer the fate of dismissal. See Dim v. Enemuo (2009) 10 NWLR (pt.1149) 353; Oyedeji v. Oyeyemi (2008) 6 NWLR (pt.1084) 484; Adeleke v. Iyanda (2001) 6 SC.1 and Luke v. Rivers State Housing Authority (2010) 5 NWLR (pt.1188) 604.
Where both parties have led evidence in the case, the duty of the trial Court is to evaluate and ascribe probative value to each piece of evidence placed before him. The trial Court will evaluate such evidence by first considering the Plaintiff’s case having in mind, the totality of the evidence adduced at the trial. He does that by weighing the evidence adduced by the parties on an imaginary scale of justice so as to see which side of the scale will preponderate. Where the scale of justice weighs in favour of the Plaintiff, judgment will be given in his favour but where it tilts in favour of the defendant, the Plaintiff’s case will be dismissed. In the process of evaluation of the evidence in order to determine which side of the scale of justice will preponderate, the Court will have regard to the following:
(a) whether the piece of evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible
(d) whether it is conclusive of the issue; and
(e) whether it is more probable than that given by the other party.
It is apparent therefore, that the evaluation of evidence by a trial Court, necessarily revolves around the reasoned belief of the evidence of one of the parties and the disbelief of the other; or a reasoned preference of the version of the case of one of the contending parties. The reasoning and conclusions of the Court must be predicated on the evidence adduced by the parties in proof of the facts pleaded by the parties. See Akintola v. Adegbite (2007) All FWLR (pt.372) 1891 at 1898; Adeyeye v. Ajiboye (1987) 1 NWLR (pt.61) 432 at 451; T. Delak Distribution Service Ltd & Anor v. Ugbowanko (2018) LPELR – 46480 (CA) and Ajagbe v. Idowu (2011) 17 NWLR (pt.1276) 422. In Akinbade & Anor v. Babatunde & Ors (2017) LPELR – 43463 (SC), my Lord, Okoro, JSC said:
“Evaluation of evidence entails the trial Judge examining all the evidence before him, before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other… Evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other…”
That being so, it is the trial Court that saw, heard and observed the demeanor of the witnesses that testified before it, that has the primary duty to evaluate and ascribe evidential weight to such evidence, including documentary evidence. Where the trial Court has dutifully, effectively and correctly evaluated the evidence, this Court, being an Appellate Court will not interfere with the findings and conclusions. It is only where the trial Court is found to have failed in its duty, that this Court will be compelled to interfere by re-evaluation of such evidence. See Lawal v. Dawodu (1972) 8 – 9 SC. 83 at 114 – 115; Amadi & Ors v. Nwanyinkwo & Ors (2012) LPELR – 19682 (CA) and Okonkwo v. Okonkwo (2010) 14 NWLR (pt.1213) 228. This Court will also interfere, where the findings of the trial Court are found to be perverse or has led to miscarriage of justice. Similarly, where the trial Court fails to evaluate the evidence at all or improperly did so, this Court will intervene and re-evaluate such evidence. See Abiodun v. State (2013) 9 NWLR (pt.1358) 138; Lagga v. Sarhuna (2008) 16 NWLR (pt.1114) 427 and Bunge v. Governor of Rivers State (2006) 12 NWLR (pt.995) 573.
In the instant case, the Appellants as Claimants, pleaded and led evidence to the effect that the 1st Appellant purchased the land in dispute from Erule Ogunyanwo family of Makun Sagamu, who were the original owners of the land, in 1977 and was issued a Purchase Receipt (Exhibit “C”). The facts pertaining the purchase of the land in dispute have been pleaded in paragraphs 5, 6, 7, 8, 9, 10 and 11 of the 3rd Further Amended Statement of Claim. Evidence thereon was led by the 1st Appellant who testified as the CW1. The said CW1 stated in his Written Statement on Oath as follows:
2. That I am the owner of the subject matter of this case having purchased same from Ogunyanwo Family of Shagamu, Remo, Ogun State in 1976.
7. That the land the subject matter of this action then a farmland originally belonged to the ERULE OGUNYANWO FAMILY OF MAKUN Sagamu, Remo, Ogun State.
8. That in 1976, I was then a sojourner in the United Kingdom visited the Country and had information that the Ogunyanwo Family were out to sell their farmland.
9. That I showed interest by approaching the Head of the Family, one Mr. David Ogunyanwo who later called a family meeting, wherein the family fixed a date to inspect the site. One Mr. Joseph Odugbemi was the Secretary of the Family.
10. That on the appointed date all of us went to the site with the Family Surveyor, one A. B. Apatira who was introduced to me by the family. I took with my cousin (sic) Mr. Rabiu Awobajo.
11. That I was satisfied with the site and size measured out; I was asked to pay deposit and promised to pay the rest in installments together with the Surveying fees, all of which I completed in April 1977, and a receipt dated 4th April, 1977 was issued to me.
12. That the final Installment of purchase price could only be paid after A. B. Apatira, Licensed Surveyor had produced the Survey Plan, which is Plan No AP/4048 dated 24th March, 1977.
13. That I was let into possession after the deposit and Mr. Rabiu Awobajo was appointed by me to manager (sic) the Crops and we built an accommodation there for him and he made returns.
In a nutshell, the claim of the Appellants is that, the 1st Appellant purchased the land in dispute from the Erule Ogunyanwo Family of Makun Sagamu. The Receipt of purchase was relied on as the document evidencing title. It is apparent that the Appellants relied on the Purchase Receipt as the document that conferred title on them. Though the Appellants pleaded an Irrevocable Power of Attorney (Exhibit “M”), purportedly, as one of the documents of title, it is trite law that, a power of attorney is merely an instrument in writing whereby one person (the principal), appoints another as his agent. The document then confers power or authority on the agent to perform certain specified acts on behalf of the principal. Where the power of Attorney is expressed as being “irrevocable” it means that it will be irrevocable either by the donor (principal) without the consent of the donee (agent), or by the death, incapacity, bankruptcy, winding up or dissolution of the donor so long as the donee has interest or the obligation remains undischarged. It however does not operate as an instrument or document that confers title to a purchaser of land or other chattel. See Abubakar v. Waziri & Ors (2008) 6 – 7 SC. (pt.II) 82 at 106 and Ude v. Nwara (1993) 2 NWLR (pt.278) 638 at 665.
Flowing from the above, it means that the only document which the Appellants could “reasonably” rely on is the Purchase Receipt (Exhibit “C”). After considering paragraphs 5, 6, 7, 8, 9, 10 and 11 of the 3rd Further Amended Statement of Claim, the learned trial Judge found and held at page 239 – 240 of the Record of Appeal as follows:
“From the above reproduced averments, there is no doubt that the 1st Claimant purchased the land in dispute from the Erule Ogunyanwo Family but there is no averment to indicate that the family owned the land they conveyed to the 1st claimant as there is nothing to show how they came to own the land. In effect, from the pleadings, there is nothing to show that the 1st Claimant acquired title to the land from a family whose ownership of the land has been established.
It is trite law that production of documents of title such as Exhibit “C” which is the Purchase Receipt is not sufficient to discharge the onus on a Claimant to prove the title they claim. They must go further to trace their root of title to one whose ownership of land has been established”.
The learned trial Judge then considered the evidence of CW3 who claimed to be a member of Erule Ogunyanwo Family, the Appellants’ Vendor, and concluded at page 240 lines 16 – 20 of the record of appeal as follows:
“He was the only member of the family who testified on behalf of the family. His testimony as can be gleaned from the above during cross-examination cannot in general be reliable as he did not witness the transaction. Also his failure to trace their root of title is no doubt detrimental to the Claimants’ Claim for declaration of title…”
The issue here is not whether or not CW3 witnessed the transaction between the 1st Appellant and Erule Ogunyanwo Family. Rather, it is whether CW3 was able to lead credible evidence on the root of title of the 1st Appellant’s grantors, the Erule Ogunyanwo Family. This is so because, in law, where a Claimant pleads and traces the root of his title to the land he Claims to a particular family or vendor (grantor), and such claim is disputed, he has the onus to proof his own title to the land and proceed to show how his grantor or vendor derived his own title to the land. To prove his own title, it will not be sufficient for such party to plead and tender documents of title, he must go further to establish by credible evidence that:
(a) the document is genuine or valid;
(b) it has been duly executed, stamped and registered;
(c) the grantor has the authority and capacity to make the grant;
(d) the grantor has in fact what he proposes to grant; and
(e) the grant has the effect claimed by the holder of the instrument.
Where any of the above listed conditions is absent, the claimant may not succeed in having title declared in his favour on the document produced and tendered. See Romaine v. Romaine (1992) 4 NWLR (pt.238) 65; Ayorinde v. Kuforiji (2007) 4 NWLR (pt.1024) 341; Dabo v. Abdullahi (2005) 7 NWLR (pt.923) 181 and Dosunmu v. Dada (2002) 13 NWLR (pt.783) 1.
It appears to me that the learned trial Judge was right in view of conditions (c) and (d) listed above. It is in view of those conditions that the law requires a person who pleads and tenders documents of title as the basis of his claim to title, to satisfy the Court that, the grantor or vendor who executed the document in his favour, had the authority and capacity to make the grant. This is because, a person has no authority to give what he does not have or own. The principle is nemo dat quod non habet, i.e; that a person cannot give that which he does not have. Based on that principle therefore, once a party pleads and traces the root of his title to land to a particular person or source, for him to succeed, he must not only establish his title to such land, he must also satisfy the Court as to the title of the person or source from whom he claims. The Claimant cannot totally ignore the validity of his grantor’s title, for it may turn out that such grantor, at all material times, had no title to convey to him. See Adekanye v. Grand Services Ltd (2007) All FWLR (pt.387) 871; Nruama v. Ebuzoeme (2006) 9 NWLR (pt.985) 217 at 234 – 235 paragraphs A – B; Otanma v. Youdubagha (2006) 2 NWLR (pt.965) 337; Bello v. Sanda (2012) 1 NWLR (pt.1281) 219; Adole v. Gwar (2008) 11 NWLR (pt. 1099) 562; Ngene v. Igbo & Anor (2000) LPELR – 1987 (SC) and Alli v. Alesinloye & Ors (2000) LPELR – 427 (SC). In Ngene v. Igbo (supra), the Supreme Court, per Iguh, JSC said:
“It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how this person or family derived his title to such land. Accordingly, the Plaintiff to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have….”
Again in the case of Ashiru v. Olukoya (2006) 11 NWLR (pt.990) 1, the Supreme Court categorically reiterated its position as follows:
“Where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the Claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the Claimant fails to discharge this onus, his claim must fail.”
In the instant case, there is no doubt that the title of the Appellants’ grantor was in dispute, the 1st & 2nd Defendants/Respondents having contested same by their paragraphs 1, 5, 6, 8, 11 and 12 of the Amended Statement of Defence of the 1st and 2nd Defendants/Respondents. This was also denied by paragraphs 2 and 3 of the 3rd Defendant/Respondent’s Statement of Defence and Counter-Claim. In the instant case, apart from pleading and leading evidence on how the 1st Appellant came to acquire title to the land in dispute from the Erule Ogunyanwo Family of Makun, Sagamu, Remo, Ogun State, the Appellants failed to plead and lead evidence on how the Erule Ogunyanwo Family came to acquire title to the parcel of land they sold to the 1st Appellant. In other words, the Appellants failed or neglected to plead and trace the root of title of their grantor or vendor. Having failed to discharge that burden their claim of title must fail; and same must suffer the fate of dismissal. I therefore hold that the learned trial Judge was right when he found and held that:
“…failure to trace the root of title is no doubt detrimental to the Claimants claim for declaration of title.”
Having thus found and resolved, this issue (issue 1), is hereby resolved against the Appellants.
Now, it is apparent that the success of issues 2, 3, 4 and 5 would depend on the success of issue one(1). In other words reliefs 2, 3 and 4 sought by the Appellants ultimately depended on the success of relief 1; which sought declaration of title to the land in dispute in favour of the Appellants.
That claim having failed, the grant of reliefs 2, 3 and 4 will also fail because, the Appellants having failed to prove their title to the parcel of land in dispute, will not have the locus to seek those reliefs. In that respect, it will not serve any useful purpose spending our scarce judicial time in resolving same.
Before I conclude, I must say that, I found from the arguments of learned counsel for the Appellants in the Appellants’ Brief of Arguments, that learned counsel has disparaged the learned trial Judge’s understanding of the law applicable to the Appellants’ Claim. I find that the learned trial Judge clearly understood the law applicable to the Appellants’ Claims, and dutifully and correctly applied same. I must say that, if anyone is to be blamed, it must be learned Counsel for the Appellants who obviously misapprehended the case of the Appellants and the nature of proof required. This is despite the fact that he cited the right authorities applicable to his Client’s claims but failed and/or neglected to apply same correctly.
On the whole, I find that issue one (1) having been resolved against the Appellants, the need to resolve the other issues will be unnecessary. The result is that, this appeal has failed and is accordingly dismissed. Consequently, the judgment of the Ogun State High Court of Justice holden at Sagamu and delivered on the 19th day of September, 2017 in suit No: HCS/193/2012 is hereby affirmed.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the draft of the Lead Judgment of my Lord HARUNA SIMON TSAMMANI, J.C.A., just delivered.
My Lord has dealt with the main issue in this Appeal appropriately. A perusal of the Record of Appeal and the Briefs of Argument filed by Counsel on behalf of the parties showed that the Appellants were not able to prove their root of title.
In the circumstance, I am also of the view that this Appeal lacks merit and it is also dismissed by me.
I abide by the consequential Order made in the said Lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I read before now the lead judgment prepared by my learned brother HARUNA SIMON TSMMANI, JCA.
It is trite that a Claimant has a duty to establish his right to the declaration sought. This he must do by pleading relevant facts and leading credible evidence in support of same. See GE INTERNATIONAL OPERATORS NIGERIA LIMITED VS. O OIL AND GAS SERVICES LIMITED (2016) 10 NWLR (PT. 1520) 303: CHUKWUMA VS. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED (1993) 4 NWLR (PT. 289) 512: OYEWUSI VS. OLAGBAMI(2013) 14 NWLR (PT. 1639) 297. In AKINBADE VS. BABATUNDE (2018) 7 NWLR (PT. 1618) 366 AT 388, PARAGRAPHS E-F, the Supreme Court held, per M.D. Muhammad, JSC as follows:
“Both the appellants and the respondents as plaintiffs and defendants respectively, by virtue of their claim and counter-claim at the trial Court, asserted entitlement to the declaration of the Court as being the rightful owners of the land in dispute. The declaratory reliefs they sought are never granted as a matter of course. The reliefs are obtained on the basis of very strong and cogent case contained in the claimants’ pleadings and evidence led in support. It is for the plaintiff to satisfy the Court that under all the circumstances of the case he is fully entitled to the discretionary reliefs he urges in his favour.”
In the instant appeal, the Appellants failed to plead relevant facts in support of their claim and did not lead credible evidence to prove same. The Appellants who did not plead and trace the root of title of their grantor are not entitled to the declaration of title sought. They failed to plead relevant facts and lead credible evidence in support to demonstrate how they acquired title to the disputed land. Their claim was therefore bound to fail. I agree with my learned brother that the Appellant did not prove their claim.
It is for the foregoing and the more elaborate reasons in the lead judgment that I also dismiss this appeal in terms of the lead judgment.
Appearances:
O. M. Kumogun, Esq. For Appellant(s)
K. A. Kazeem, Esq (holds the brief of Chief Adekunle Sofola, Esq) – for the 3rd Respondent
1st and 2nd Respondents are absent and unrepresented For Respondent(s)
