ORJI v. ORJI (2020)

ORJI v. ORJI

(2020)LCN/15334(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/L/561/2014

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ISRAEL NDUKA ORJI APPELANT(S)

And

FLORENCE ADANMA ORJI RESPONDENT(S)

RATIO

PRINCIPLES OF THE LAW ON CLAIMS FOR OWNERSHIP OR TITLE TO LAND IN NIGERIA

There are general and firmly established principles of law on claims for ownership/title to land on Nigeria, which by way of introduction, I would restate. They include: –
1. That there are five (5) ways by which title to a piece of land may and can be proved as follows: –
(a) By traditional evidence. See Ezeakabekwe vs. Emenike (1998) 62 LRCN, 4855, Ezinwa vs. Agu (2004) 3 NWLR (Pt. 861) 43 @ 456, Oyadare vs. Keji (2005) 7 NWLR (Pt. 925) 571.
(b) By documents of title; see Nnabuife vs. Nwigwe (2001) 9 NWLR (Pt. 719) 710 @ 723-4, Mogaji vs. Cadbury (1985) 2 NWLR (Pt. 7) 395.
(c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership, see Agu vs. Nnadi (1999) 2 NWLR (Pt. 589) 131 @ 146, Oladipupo vs. Olaniyan (2000) 1 NWLR (Pt. 624) 556.
(d) By acts of long enjoyment and possession of the land, under Section 143 of the Evidence Act, 2011; see Agbara vs. Amara (1995) 7 NWLR (Pt. 410) 712 @ 734, Dagaci of Dere vs. Dagaci of Ebwa (2001) 7 NWLR (Pt. 712) 365 @ 406, Jinadu vs. Esurombi-Aro (2005) 14 NWLR (Pt. 944), Okhuarobo vs. Aigbe (2002) 9 NWLR (Pt. 771) 26.
(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition, be the owner of the disputed land under Section 35 of the Evidence Act, 2011. See Adeniran vs. Alao (1992) 2 NWLR (Pt. 223) 350, Onwugbufor vs. Okoye (1996) 1 @ 12.
2. That title to land may and can be proved by any one or more of the above ways or methods. See Atanda vs. Ajani (supra), Ebevuhe vs. Ukpakara (1996) NWLR (Pt. 460) 254 @ 277-8, Nwosu vs. Udeaja (1990) 1 NWLR (Pt. 125) 188, Dabo vs. Abdullahi (2005) 2 SC (Pt. 1) 75 @ 91, Oyadare vs. Keji (2005) ALL FWLR (Pt. 247) 583 @ 159, Fasoro vs. Beyioku (1988) 2 NWLR (Pt. 26) 263.
3. That the burden of proof is on the claimant/plaintiff who is to succeed on the strength of his own case and not the absence or weakness of defence. See Akunyili vs. Ejidike (1996) 4 SCNJ, 251 @ 261, Itauma vs. Akpe-Ime (2000) 12 NWLR (Pt. 680) 156, Agbabiaka vs. Okojie (2004) 15 NWLR (Pt. 897) 503, Bassey vs. Damol Nigeria Limited (2009) 6 NWLR (Pt. 1136) 36. PER GARBA, J.C.A.

WHETHER OR NOT THE PAYMENT OF PURCHASE PRICE BY A PARTY FOR A PROPERTY AUTOMATICALLY CONFERS RIGHT ON THE PARTY THAT IS ENFORCEABLE

Under customary law, the payment of purchase price by a party for a property automatically confers a right on the party which right is enforceable unless otherwise determined and such purchase can be proved by way of a purchase receipt or by an agreement of the sale in the presence of witnesses which is evidence that consideration was paid for the sale and it was paid by the purchaser. See E.F.P. Company Limited vs. N.D.I.C. (2007) NWLR (Pt. 1039) 21, Adepate vs. Babatunde (2002) 4 NWLR (Pt. 756) 99, Aminu vs. Ogunyebi (2004) 10 NWLR (Pt. 882) 457. A valid sale of land under customary law is complete and enforceable when there is evidence of an agreement between the vendor and the purchaser and
(a) Payment of the purchase price.
(b) Delivery and taking of possession of the land and
(c) Presence of witnesses who witnessed the sale and delivery of possession.
In fact, it is not necessary or requirement that the sale be in writing, by written contract or even deed of conveyance as required under English Law. SeeYusuf vs. Mathew (1999) 13 NWLR (Pt. 633) 30, Adesanya vs. Aderounmu (2000) 6 SC (Pt. II) 18, Elema vs. Akenzua (2000) 6 SC (Pt. II) 26 @ 37, Ajayi vs. Jolaoso (2004) 2 NWLR (Pt. 856) 89, Adike vs. Obiareri (2002) 4 NWLR (Pt. 758) 537, Ogundalu vs. Macjob (2006) 7 NWLR (Pt. 978) 148, Comm., L & H, Kwara State vs. Atanda (2007) 2 NWLR (Pt. 1018) 360. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgement of the High Court of Lagos State, Ikeja (Lower Court) delivered on the 18th December, 2013 in the Suit No: ID/524/2009 in favour of the Respondent, granting her claim for ownership/title to the property at No. 6, Uzo Odunukwu Street, Santos Estate, Dopemu in Alimosho Local Government Area, Lagos.

The Appellant, who was the Defendant and former husband of the Respondent, brought the appeal vide the Notice of Appeal of 20th December, 2013 on three (3) grounds from which an issue each is said to arise for determination by the Court in the Appellant Brief filed on 17th October, 2016, deemed on 23rd May, 2019. They are: –
“i. Whether the lower Court was correct in holding that the Respondent has duly proved root of title to the land the subject matter of this Appeal by documents and by calling witnesses (Distilled from Grounds one and three of the Grounds of Appeal)
ii. Whether the Appellant is bound to call a particular witness in order for the Appellant to prove his case (Distilled from Grounds of the Grounds of Appeal).

iii. Whether the finding and judgment of the lower Court was supported by the evidence adduced by the Respondent’s witnesses (Distilled from Grounds three of the Grounds of Appeal)”

The issues are adopted in the Respondent Brief filed on the 2nd April, 2019, also deemed on 23rd May, 2019.
I would consider the submissions by Counsel on the issues, together.

Appellant’s Submissions:
The cases of Oro vs. Falade (1995) 5 NWLR (Pt. 396) 385 @ 391 on attributes of a judgment of a Court and Mogaji vs. Odofin (1978) 3 SC, 91 on assessment or evaluation of evidence, are cited and it is submitted that the Lower Court had done what was required in law by these authorities, but did not arrive at the correct decision in holding that the Respondent had proved her claim of title to the property in dispute in view of the evidence of CW4, PW6 and Exhibit FAO2 to the effect that the Yaku Family had no interest or title to pass to the Respondent in Exhibit FAO7.

The five (5) ways judicially recognized by which title to land may be proved as laid down and restated in Idundun vs. Okumagba (1976) 9 – 10 SC, 140, Odunsi vs. Pereira (1972) 1 SC, 36 @ 44, Atanda vs. Ajani (1989) 3 NWLR (Pt. 111) 511, Anyanwu vs. Mbara (1992) 5 NWLR (Pt. 242) 386 and Alli vs. Alesinloye (2000) 6 NWLR (Pt. 660) 177 are set out and it is contended that the Respondent did not tender any title document or purchase receipt issued to her by the vendor on 4th February, 2004 in respect of the property in support of the claim in paragraph 13 of the written statement on Oath. (Exhibit FAO4).

Learned counsel also argues that the deed of assignment of 12th November, 2008 (Exhibit FAO7) did not support the claim by the Respondent who bore the duty of proof and had to succeed on the strength of her case and not on the weakness of the Appellant’s defence, on the authority of Rabiu vs. Adebayo (2012) 6 – 7 MJSC (Pt. III) @ 62, Egonu vs. Egonu (1978) 11-12 SC, III and Obioma vs. Olomu (1978) 3 SC, I. In further argument, Counsel says that the evidence of CW1, CW2, CW3 and CW4 was neither credible nor worthy of belief, but contradictory and did not prove the Respondent’s claim or controvert the Appellant’s defence and Counter Claim. According to him, when the evidence of the parties was placed on an imaginary scale, that of the Appellant has more quality, probative or evidential value to sustain his defence and counter claim and so the decision by the Lower Court is perverse; occasioning miscarriage of justice to the Appellant. Atolagbe vs. Shorun (1985) 1 NWLR (Pt. 2) 360, Agbomeji vs. Bakare (1998) 9 NWLR (Pt. 564)(no page provided) and Odiba vs. Azege (1998) 9 NWLR (Pt. 566) 370 are cited in urging the Court hold that the Respondent did not prove her claim and to resolve the issue 1 in Appellant’s favour.

Under Issue 2, it is submitted that the Appellant was not bound to call a particular witness if he could prove his case otherwise and reliance was placed on Musa vs. Yerima (1997) 7 NWLR (Pt. 511) 27 @ 50. Also, that, on the authority ofOnowhosa vs. Odiuzou (1999) 1 NWLR (Pt. 173 @ 193, the law does not prescribe any number of witnesses a party has the duty to call before he gets judgment in his favour. Citing the testimony of the Appellant and evidence of one Adebisi Adelaja; Respondent’s witness (CW4), under-cross-examination, learned counsel submits that the Appellant’s case was never contradicted and he did not have to call Mr. Abiodun Adenekan Ogunjobi as a witness since Exhibit AFO2 shows evidence of the receipt and deed of assignment of 4th February, 2004. Kopek Construction Limited vs. Ekisola (2010) 13 NWLR (Pt. 1182) 618 @ 655 was referred to on the law that a Court can act on the cogent, credible and convincing evidence of a single witness for its decision.

It is also the case of the Appellant that the Lower Court did not consider the totality of the evidence adduced by him and the other witnesses in proof of his case and the Court is urged to resolve the issue in Appellant’s favour.

Under issue 3, it is submitted that the evidence adduced by the Respondent did not support the judgement of the Lower Court in view of the fact that the Respondent did not file a defence to the Appellant’s counter claim which was supported by evidence and the decision by the Lower Court, again, is said to be perverse.Atolagbe vs. Shorun and the other cases cited supra are referred to and the Court is urged to resolve the issue in favour of the Appellant.

In conclusion, the Court is called upon to allow the appeal, set aside the judgement of the Lower Court and enter judgment in favour of the Appellant in terms of his counter claim.

Respondents’ Submissions:
The submissions on issue 1 are to the effect that the Respondent had proved her claim for ownership and title to the property in question by oral and documentary evidence in Exhibits 22, 23, AFO4 and FAO7 which show that the root of title to the property from the original family owners, as required in, among other cases, Opoto vs. Anaun (2015) 32 WRN, 79, Idundun vs. Okumagba (supra), Maduka vs. Anyadiegwu (2015) 8 WRN, 133 @ 144.

It is also said that the Appellant did not claim to have purchased the land in dispute but was merely a witness to Exhibit FAO2 and Appellant’s depositions on oath are referred to for the argument that the Appellant did not exhibit any agreement between him and the Respondent to show how they raised money to buy the land. The evidence of CW4 is also said to show that the Respondent brought the land and the Court is urged to resolve the issue in Respondent’s favour.

On issue 2, it is submitted, citing Amakor vs. Obiefuna (1974) 3 SC, 67, (1974) ALLNLR (Pt. I) 119, (1974) 9 NSCC, 141 and Omoni vs. Siriya (1976) 6 SC, 49 @ 54, that where two parties claim to be in possession of a parcel of law, possession is ascribe to the party with better title and since the Appellant failed to tender any document of title or call a witnesses to prove title, he could not be ascribed the ownership of the land in dispute. Danladi vs. Dangiri (2015) 4 WRN 1 @ 5 is cited on the effect of withholding evidence under Section 167(d) of the Evidence Act, 2011. It is contended that the Appellant did not call the members of the Family who originally owned the land or the person he allegedly bought the land from because their evidence will not be favourable to him. The Court is urged to hold that the Respondent had proved her case, that the judgment of the Lower Court is not perverse since it is supported by the evidence adduced by the Respondent and to resolve the issue in Respondent’s favour.

For issue 3, it is pointed out the Respondent had filed a defence to the Appellant’s counter claim with the leave of the Lower Court, as borne out by pages 104, 169-73 and 177 of Vol. 1 of the Record of Appeal. In the alternative, relying on Olowu & Anor (sic) (2016) 17 WRN, 108 @ and Ogbonna vs. Attorney General, Imo State (1992) 1 NWLR (Pt. 220) 647, it is submitted that failure to file a defence to a counter claim by a plaintiff is not always fatal or necessary where he succeeds in his claim or the defendant fails to prove same as required by law.

Learned counsel contends that the Appellant failed to prove the counter claim which was an afterthought and ought to be dismissed.
Finally, the Court is urged to uphold the judgement of the Lower Court and dismiss the appeal.

Resolution:
The claim by the Respondent before the Lower Court, as contained on the Amended Statement of Claim dated 18th June, 2010 are as follows: –
“(a) A declaration that all that parcel of land situate, lying and being at Losa/Kao Street, Valley Estate, Dopemu in Alimosho Local Government Area of Lagos State (Also described as No. 6, Uzo Odunukwe Street, Santos Estate) measuring approximately 669.045 Square Metres and more particularly described and delineated with its dimensions and abuttals on the Survey Plan No. ARK/11B/2007/25/LA dated 20th December, 2007 drawn by Surveyor R.O. Alabede, a Registered Surveyor and bounded by Survey Pillar Nos. CB4297, CB4298, CB4305 and CB4306 is the land of the Claimant.
(b) An order of perpetual injunction restraining the Defendant, his servants, agents and privies from further letting, leasing or dealing with in any manner whatsoever with the Claimant’s property situate, lying and being at Losa/Kao Street, Valley Estate, Dopemu in Alimosho Local Government Area of Lagos State (Also described as No. 6, Uzo Odunukwe Street, Santos Estate) the subject matter of this suit.
(c) An order entering final judgment against the defendant in the sum of N2,800,000.00 AND interest thereon from June 2008 at the rate of 30% per annum and at the same rate until the final liquidation of the debt.
(d) An order directing the Defendant to pay the sum of N2,800,000.00 to the Claimant.”

Briefly, the claim by the Respondent is for ownership/title of the land in question premised on which she also seeks injunction and rents collected therefrom by the Appellant.

At the trial of the case before the Lower Court, the Respondent, as claimant/plaintiff called three (3) witnesses, testified and tendered documents in support and proof of her claims. A summary of the evidence is that she bought the land in dispute from Mr. Abiodun Ogunjobi in 2004 who in turn acquired it from the Yaki family; the original customary owners and paid the money in the presence of her then husband; the Appellant.

That Deed of assignment; Exhibit FAO2 was executed in the name of her son; Joshua Orji, who was a minor and the Appellant was a witness thereto.

She built the property on the land through the Appellant who supervised the work and put tenants therein but refused to give her the rents collected. She later approached the Yaki family, through Mr. Ogunjobi, for Exhibit FAO7 because she wanted to perfect her title to the land. PW6 gave evidence to that effect.

On his part, the Appellant’s case and evidence was in brief, that the property was jointly owned between him and the Respondent and that he bought the land using his son’s name; Joshua Adanma, with the agreement of the Respondent. That he was not an agent of the Respondent, but her husband and he also used his money to develop the property in trust for his son.

In its judgement at page 576 of Vol. II of the Record of Appeal, the Lower Court stated that: –
“This Court upon cursory perusal of Exhibit FAO7 is convinced that the Claimant has proved traditional history of how he got the land, the fact which the Defendant is not contesting that but rather saying that the fact the Yaku Family has sold to Mr. Abiodun Ogunjobi, they no longer have right, interest and estate over the property having transferred same to Mr. Abiodun Ogunjobi.”

By this finding, the Lower Court appears to be saying that the Respondent relied on traditional history evidence in support and proof of the claim to ownership of the land. Exhibit FAO7 acted on by the Lower Court was the Deed of Assignment dated 12th November, 2008 between the Yaku Family; as assignors and the Respondent; as assignee of a place or parcel of land being at Losa/Kao Street, Valley Estate, Dopemu Area, Alimosho Local Government Area, Lagos State which was sold to Respondent on or about the 24th November, 2003 and put into immediate possession. That the Respondent caused the land to be surveyed in 2007 and particularly delineated on Survey Plain NO. ARK/1184/2007/25/LA dated 20th December, 2007 drawn by surveyor R.O. Olabede; a registered Surveyor. From the pleadings of the Respondent in paragraphs 9 – 13 of the Amended Statement of Claim, paragraph 12 – 16 of her statement of oath dated 20th January, 2011 as well as Exhibit FAO7, the Respondent’s case was predicated on purchase of the land in dispute under customary law and did not plead or/and rely on traditional history evidence as the root of her ownership/title to the land. Paragraphs 9 – 13 of the Appellant Statement of Claim are as follows: –
“9. The defendant introduced Mr. Adebisi Adeladun, an Estate Agent of No. 2, Atiba Close, Onipetesi, Ikeja to the claimant. The claimant Adeladun collaborated with another agent, Mr. Segun Akindele who lives in Mohammed Street, Santos Estate.
10. On the 4th of February 2004 and on the recommendation of Mr. Adebisi Adeladun and Mr. Segun Akindele, the claimant bought all the parcel of land situate, lying and being at Losa/Kao Street, Valley Estate, Dopemu in Alimosho Local Government Area of Lagos State (Aslo described as No. 6 Uzo Odunnukwu Street, Santos Estate) measuring approximately 669.045 Square Meters and more particularly described and delineated with its dimensions and obuttals on the Survey Plan No. ARK/118/2007/25/LA dated 20th December, 2007 drawn by Surv R.O. Alabede, A Registered Surveyor and bounded by Survey Pillar Nos. CB4297, CB4298, CB4305 and CB4306 from Mr. Aboidun Ogunjobi.
11. After the purchase, one Mr. Okey Onwukwe, Legal Practitioner and a childhood friend of the defendant prepared an agreement between Mr. Abiodun Ogunjobi, the Claimant and the son of the claimant, Master Joshua Orji.
12. The inclusion of Master Joshua Orji’s name who is a minor was at the behest of the defendant and Mr. Okey Nwosu.
13. The agreement was witnessed by the following persons, I. Mr. Adebisi Adeladun of No. 2, Atiba Close, Onipetesi, Ikeja 2. Mr. Segun Akindele of Mohammed Street, Santos Estate.”

The facts in these pleadings simply show purchase of the land in dispute by the Respondent from a vendor; Abiodun Ogunjobi; who issued her a receipt and an agreement was prepared in the presence of the Appellant, as a witness.
Under customary law, the payment of purchase price by a party for a property automatically confers a right on the party which right is enforceable unless otherwise determined and such purchase can be proved by way of a purchase receipt or by an agreement of the sale in the presence of witnesses which is evidence that consideration was paid for the sale and it was paid by the purchaser. See E.F.P. Company Limited vs. N.D.I.C. (2007) NWLR (Pt. 1039) 21, Adepate vs. Babatunde (2002) 4 NWLR (Pt. 756) 99, Aminu vs. Ogunyebi (2004) 10 NWLR (Pt. 882) 457. A valid sale of land under customary law is complete and enforceable when there is evidence of an agreement between the vendor and the purchaser and
(a) Payment of the purchase price.
(b) Delivery and taking of possession of the land and
(c) Presence of witnesses who witnessed the sale and delivery of possession.
In fact, it is not necessary or requirement that the sale be in writing, by written contract or even deed of conveyance as required under English Law. SeeYusuf vs. Mathew (1999) 13 NWLR (Pt. 633) 30, Adesanya vs. Aderounmu (2000) 6 SC (Pt. II) 18, Elema vs. Akenzua (2000) 6 SC (Pt. II) 26 @ 37, Ajayi vs. Jolaoso (2004) 2 NWLR (Pt. 856) 89, Adike vs. Obiareri (2002) 4 NWLR (Pt. 758) 537, Ogundalu vs. Macjob (2006) 7 NWLR (Pt. 978) 148, Comm., L & H, Kwara State vs. Atanda (2007) 2 NWLR (Pt. 1018) 360. It is important to note that there is no dispute between the parties as to the original proof of title or ownership of the land in dispute by the Yaku Family and that both claim to have purchased the land from the same vendor; Mr. Ogunjobi, who derived his own title/ownership thereof from the family. Since the original root of title/ownership of the land by the Yaku family is not in dispute and the Respondent did not claim title or ownership of the land by traditional history evidence, the need for pleadings on who and how the land was founded and the particulars of the intervening owners through whom she claims, does not arise.

As seen from the case presented in the pleadings, the claim was based on purchase under native law and custom; customary law.

In paragraphs 9 – 13 of the Amended Statement of Claim set out earlier along with paragraph 17 thereof and paragraphs 12 – 16 of the statement on oath; which was adopted as evidence in support of the pleadings, as well as paragraph 20 thereof, the Respondent has shown that there was an agreement between Mr. Ogunjobi; the vendor, and her for the sale of the land in dispute and that she paid the price in the presence of witnesses and was put into possession.

The Respondent’s case is supported by Exhibit “B”; the receipt for payment of the purchase price from the vendor Mr. Ogunjobi and Exhibit FAO2; a written agreement for the sale in the form of a deed of assignment between the vendor and Joshua Adanma F. Orji which the Appellant signed as a witness on 4th February, 2004.

Both Exhibit “B” and FAO2 are documents pleaded and relied on by the Appellant and the Respondent in support of their cases. In fact, Respondent who pleaded that both Exhibits were with the Appellant, had given notice to the Appellant to produce them at the trial. The requirements necessary for proof of purchase of land under customary law, on the balance of probabilities, have therefore been fully satisfied and met by the Respondent to establish her ownership/title to the land in dispute.

The Appellant’s defence to the Respondent’s case is that he, as the husband and not agent of the Respondent, jointly bought the land in dispute from the vendor and used their only son’s name; Joshua Orji, as the purchaser. One vital point to be noted that both Exhibits “B” and FAO2 bear the name Joshua Adanma F. Orji as the purchaser and assignee, respectively. The Respondent’s name, as borne out by all the processes of the case before the Lower Court up to this Court, has been and remains, Florence Adanma Orji.

Meanwhile, the Appellant in both pleadings and evidence has stated, restated and maintained that his son’s name which was used in the transaction for the sale and purchase of the land was/is Joshua Orji. If indeed and fact, the Appellant and Respondent jointly purchased the property and agreed that the son’s name was to be used as the purchaser, the name on both Exhibit “B” and FAO2 should have been in the name given by the Appellant i.e., Joshua Orji; simpliciter.

However as seen, both Exhibits bear the names Joshua Adanma F. Orji as the purchaser of the land in dispute, clearly showing that the “Adanma F.” do not belong to Joshua Orji, but that of the Respondent who was Florence Adanma Orji at the time of the transaction because she was married to and so wife of the Appellant. The name “Adanma F.” was included in both Exhibits “B” and FAO2 to show that it was the Respondent who paid for and purchased the land in dispute, alone and the Appellant, as her husband, only signed Exhibit FAO2 as a witness to the transaction. The only plausible name the letter “F” in Exhibits “B” and FAO2 stands for, in the circumstances of the case, is “Florence” the Respondent’s name as shown in the processes of the case. I agree with the learned counsel for the Respondent that the argument that the name of Joshua Orji is Joshua Chidera Franklin Adanma Nwaseike Orji, is spurious and an afterthought in the absence of pleadings by the Appellant. It was only in paragraph 5 of the Amended Statement of Defence dated 23rd January, 2010 that the Appellant said his son’s name was Master Joshua Chidera Orji but nowhere in the statement of claim and counter claim did he assert or claim that the name was Joshua Chidera “Franklin Adanma” Nwaseike Orji for the purpose of the purchase of the land in dispute. The introduction of the names “Franklin Adanma” into the name of the Appellant’s son is deliberately meant to beguile the Court and obfuscate the clear name of the Respondent on the Exhibits “B” and FAO2.

Even though in view of Exhibit “B” and FAO2, Exhibit FAO7 is no proof of ownership/title to the land in dispute from the Yaki Family, who had divested themselves of ownership with admitted the sale and assignment of the land to the Respondent’s vendor, it lends credence to the case put forward by the Respondent that she purchased the land, paid the purchase price and was put into possession under customary law to vest ownership/title in the land to her.

The Respondent had placed unchallenged and credible evidence in her testimony and documentary; Exhibit FAO8; record of expenditure for my house in Nigeria, on the amounts she spent in developing the land which was done through the Appellant. The Appellant merely pleaded and asserted that he developed or contributed money from the alleged sale of his plots of land in Aba, in the development of the land, when he was still the husband of the Respondent.
However, outside the ipse dixit of the Appellant, no credible evidence was placed before the Lower Court to support and prove such assertion and the Lower Court is right to hold that the Appellant did not show any credible defence or prove the counter claim as required by the law. As a separate and distinct claim, the Appellant has the burden to prove the counter claim on the balance of probabilities. Dahiru vs. Kamale (2006) ALLFWLR (Pt. 295) 616, Jegede vs. Bamidele (2006) ALL FWLR (Pt. 315) 109, Balogun vs. Yusuf (2010) 9 NWLR (Pt. 1200) 575, O.O..M.F. Limited vs. N A & C.B. Limited (2008) 7 MJSC, 156.
I have also noted, as rightly pointed out by the learned counsel for the Respondent, that the Respondent in fact filed a defence to the counter claim by the Appellant with the leave of the Lower Court as shown at pages 104-5 of Vol. 1 of the Record of Appeal. So it is not correct to say that the Respondent did not file a defence to the counter claim by the Appellant and even if that was to be the position, the burden of proof of the counter claim on the Appellant was in no way mitigated by the absence of a defence thereto since it was the Appellant who sought judgment from the Lower Court on the basis of the facts asserted therein and would have failed if no evidence at all or credible proof on the balance of probabilities was adduced by the Appellant. See Section 131, 132 and 133(1) of the Evidence Act, 2011, Archibong vs. Ita (2004) 1 SC (Pt. 1) 108, Ojoh vs. Kamalu (2005) 12 SC (Pt. 11) 132, Are vs. Saliu (2006) ALLFWLR (Pt. 329) 574.
In addition, without satisfactory proof her claim to ownership/title to the land in dispute, the counter claim by the Appellant is bound to fail. See Kwajaffa vs. B.O.N. (1999) 1 NWLR (Pt. 586) 423 @ 434; Ogbonna vs. Attorney General, Imo State (supra); Maobison Inter-Link Limited vs. U.T.C. Nigeria Limited (2013) 9 NWLR (Pt. 1359) 197; Balogun vs. Yusuff (2010) 9 NWLR (Pt. 1200) 515, Ogboja vs. Access Bank, Plc (2016) 2 NWLR (Pt. 1496) 291.
In the final result, there is no merit in this appeal and it is dismissed.

Consequently, the judgement by the Lower Court is affirmed and it is ordered that there shall be costs of Three Hundred Thousand Naira (N300,000.00) in favour of the Respondent to be paid by the Appellant for the prosecution of the appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I have had the benefit of reading in draft the judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.), with which I agree with nothing extra to add.

BALKISU BELLO ALIYU, J.C.A.: I have read in draft the leading judgment of my learned brother MOHAMMED LAWAL GARBA, JCA. I am in full agreement with the reasoning and conclusion reached therein that this Appeal lacks merit and deserved a dismissal.

I also dismiss the Appeal and affirm the Judgment of the trial Court delivered on 18/12/2013 in respect of Suit No: ID/524/2009. I abide by the order of cost made in the lead Judgment. Appeal dismissed by me.

Appearances:

L.O. Onwukwu For Appellant(s)

E.E. Amagiya (Mrs.) For Respondent(s)