PHILLIP IBA YUSUF v. FEMI OLUMEYAN & ANOR (2016)

PHILLIP IBA YUSUF v. FEMI OLUMEYAN & ANOR

(2016)LCN/8121(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of January, 2016

CA/K/107/2011

RATIO

EVIDENCE: ONUS OF PROOF; WHICH OF THE PARTIES HAS THE ONUS OF PROOF WHERE A PARTY IN A DISPUTE OVER LAND ADMITS IN HIS PLEADINGS THAT THE OTHER PARTY IS THE ORIGINAL OWNER OF THE LAND IN DISPUTE

It is settled that where a party in a dispute over land admits in his pleadings that the other party is the original owner of the land in dispute, the onus is on that party to establish a change of ownership by sale or otherwise as he is the one who would lose if no more evidence is adduced having regard to the state of the pleadings; there is no onus on the other party to establish a sale or grant of the land – Ochoma Vs Unosi (1965) NMLR 301, Mogaji Vs Odofin (1978) 4 SC 91, Bello Vs Eweka (1981) 1 SC 101, Onoburuchere vs Esegine (1986) 1 NWLR (Pt.19) 799, Makanjuola vs Ajilore (2001) 12 NWLR (Pt.727) 416, Adedeii Vs Oloso (2007) 5 NWLR (Pt.1026) 133, Awure Vs Iledu (2008) 12 NWLR (Pt.1098) 249, Adole Vs Gwar (2008) 11 NWLR (Pt.1099) 562, Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt.1196) 307. This is in furtherance of the principle that in a civil suit, the person who asserts has the primary burden of proving the assertion and it is explained by the maxim “ei qui affirmat non ei qui negat incunbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt.878) 411,, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF IN CIVIL CASES; THE EFFECT OF AN EQUILIBRUM IN THE EVIDENCE OF BOTH CLAIMANT AND DEFENDANT

In civil suits, cases are won upon a preponderance of evidence. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Onwuka Vs Ediata (1989) 1 NWLR (Pt 96) 182, Mbani Vs Bosi (2006) 11 NWLR (Pt.991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt.1014) 71. A case is decided on the totality of evidence adduced. Therefore, if on any given issue, the evidence of the claimant be as good as that of the defendant so that there is an equilibrium, it is the party on whom rests the burden of proof that fails. This is because the evidence does not preponderate in such party’s favour – Ezukuru vs Ukachukwu (2000) 1 NWLR (Pt. 642) 657, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt.1127) 194. In other words, if two possibilities are equally compatible with an evidence, neither one can be said to have been proved. This is because evidence which leads as reasonably to one hypothesis as to another tends to prove neither and such evidence will not support a judgment in favour of the party having the burden of proof. The evidence of facts and circumstances on which a claimant relies and the inferences logically deducible therefrom must so preponderate in favour of the basic proposition it is seeking to establish as to exclude any equally well supported belief in any inconsistent proposition – Ogunro Vs Arowolo (1998) 6 NWLR (Pt 552) 78. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt.141) 735 at page 751 thus: “It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or tribunal of the probability of his case rather than that of the opponent on the point in issue …” Thus, it is not enough for a claimant in a civil suit to set up a case which is a “little more probable” than the case put forward by the defence, or of which the highest that can be said is that in the absence of better evidence, there are some grounds for accepting it. It is not an argument that the scales are evenly weighted, for evidentially in that case he does not discharge the onus – Nwokafor Vs Udegbe (1963) 7 SCNLR 184, Odiete Vs Okorie (1973) NMLR 175, Owoade Vs Omitola (1988) 2 NWLR (Pt 77) 413, Sarhuna Vs Lagga (2002) 3 NWLR (Pt.754) 322, Eyo vs Onuoha (2011) 11 NWLR (Pt.1257) 1. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

TORT OF TRESPASS: TRESPASS IN RELATION TO PROPERTY LAW; WHAT IS THE MEANING OF TRESPASS IN RELATION TO PROPERTY LAW

Trespass, in relation to property law, generally means to interfere with another person’s property; to enter unlawfully upon another person’s property of to encroach or intrude on another person’s property. It is a word of very large significance and signification, particularly in the determination of the specific acts of trespass on the part of the trespasser – Onagoruwa vs Adeniji (1993) 5 NWLR (Pt.293) 317. In legal theory, the position is that every unlawful or unauthorized entry into land in portion of another is trespass for which an action in damages lies even if no actual damage is done to the land or any fixture thereon – Adesanya Vs Otuewu (1993) 1 NWLR (Pt.270) 414, Anyabunsi Vs Ugurenze (1995) 6 NWLR (Pt 401) 255. It is a wrongful entry into land in actual of constructive possession of another – Olaniyan vs Fatoki (2003) 13 NWLR (Pt.837) 273. In other words, trespass, in relation to landed property means an unjustified intrusion or interference with possession of land – Echere vs Ezirike (2006) 12 NWLR (Pt 994) 386 and Osu vs Nwadialo (2009) 12 NWLR (Pt.1155) 286. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: OWNERSHIP OF LAND; THE EFFECT OF FAILURE TO PROVE THE OWNERSHIP BY A PARTY WHO ALLEGES ACTS OF POSSESSION CARRIED OUT ON A PIECE OF LAND IN DISPUTE

The law is that where a party alleges acts of possession carried out on a piece of land in dispute in support of a claim of ownership of the land and he fails to prove the ownership pleaded and claimed, the acts of the party on the land cease to be acts of possession and they automatically become acts of trespass and will sustain a finding of trespass against the party – Adebayo vs Ighodalo (1996) 5 NWLR (Pt 450) 507, Egbuta vs Onuna (2007) 10 NWLR (Pt.1042) 298, Ajikanle vs Yusuf (2008) 2 NWLR (Pt.1071) 301. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

PHILTIP IBA YUSUF

(substituted by order of Court for Livictus Nyat Yusuf (deceased)) – Appellant(s)

AND

FEMI OLUMEYAN

JIDE JOHNSON, ESQ. – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State delivered on the 15th of February, 2010 in Suit No KDH/KAD/477/2001 by Honorable Justice Othman Abdul Kadir. The Appellant, as plaintiff, commenced the action in the Lower Court against the Respondents, as defendants, and his claims, by an amended statement of claim, were for:

i. A declaration that the first Respondent had sold through his Solicitor, the second Respondent, and the Appellant had bought, for a consideration of N150,000.00, the plot of land measuring 100ft by 100ft and lying, situate and being at Gonin-Gora along Abuia Expressway, Kaduna.

ii. In the premise of (i) above, an Order directing the first Respondent to forthwith execute the necessary instruments transferring title in the aforesaid plot of land to the Appellant.

iii. An order of perpetual injunction restraining the first Respondent, his agents, servants, heirs, whosoever and whomsoever otherwise from further trespassing, laying any adverse claim and for interfering with the Appellant’s continued peaceful

possession and enjoyment of the plot of land aforesaid.

iv. Damages in the sum of N500,000.00 for trespass against the first Respondent.

?The first Respondent filed an amended statement of defence and counterclaim in response and his claims by the counterclaim were for:

i. A declaration that the purported sale of his land at Gonin-Gora by the Appellant and the second Respondent was null and void and of no effect.

ii. An order of perpetual injunction restraining the Appellant and the second Respondent, their agents, servants, privies, heirs, whosoever and whomsoever, otherwise from claiming and for interfering with the first Respondent’s peaceful and quiet enjoyment of the plot of land aforesaid as decided in Suit No KDH/KAD/15/95.

iii. Damages in the sum of N10 Million against the Appellant and the second Respondent jointly and severally for trespass, transport costs of the first Respondent several times from Abuja to Kaduna in respect of this matter, loss of use of the land in dispute, for the period until the determination of this suit, pains and suffering for the illegal acts and ganging up of the Appellant and second Respondent

against the first Respondent in this matter for the matters aforesaid.

?The case of the Appellant on the pleadings was that he initially purchased the land in dispute in June 1993 from one Solomon Garuba and that his purchase led to a dispute between him and the first Respondent over the ownership of the land and the matter was eventually taken to Court in Suit No KDH/KAD/115/95. It was his case that the second Respondent acted as Counsel for the first Respondent in the case and judgment was entered in favour of the first Respondent and consequent on which he surrendered possession of the land to the first Respondent and the first Respondent placed a notice on the land asserting ownership thereof and directing all enquiries on the land to the second Respondent. It was his case that the first Respondent subsequently indicated to him, through one Bariyakat A. Haruna, a desire to sell the land and directed him to the second Respondent who was mandated to handle the sale and that he relied on the representation and approached the second Respondent and, after negotiations, he paid the agreed purchased price in the sum of N150,000.00 to the second Respondent on

the 20th of January, 2001. and was issued with a receipt. It was his case that he was thereafter let into immediate possession of the land in dispute and he commenced the construction of four units of two bedroom flats and which construction was at advanced stage.

It was the case of the Appellant that on the 16th of March, 2001, the first Respondent went into the land in dispute and left a handwritten note for him saying that he was no longer willing to sell the plot of the land and consequent on which he caused his Solicitors to address a letter to the first Respondent through the second Respondent demanding that the first Respondent should desist from coming to trespass on the land. It was his case that the first Respondent did respond to the letter, but he ceased his trespass on the land in dispute until the 19th of July, 2001 when his agent was served with a Form 48 Notice of Consequences of Disobedience of Order of Court and that the first Respondent was yet to execute all the necessary instruments of transfer of the ownership of the land, as he was bound by law to do, in his favour.

?The case of the first Respondent on the pleadings was that

though the second Respondent represented him as Counsel in Suit No KDH/KAD/115/95, the second Respondent was not his estate agent and he never authorized the second Respondent to sell the land in dispute to the Appellant or to any one at all for the sum of N150,000.00 or at any price and that, since he lived and worked in Abuja, he only used the address of the second Respondent as his contact address on the notice he put on the land. It was his case that when the second Respondent brought the sum of N150,000.00 to him in March 2001., he refused the money and insisted that he never authorized him to sell the land and directed that he should refund the money to the person who paid to him and he did not know what the second Respondent did thereafter and he changed his Counsel.

?It was his case that he did not at anytime execute any document transferring the ownership of the land in dispute to anyone and neither did he sign a document appointing the second Respondent as his agent to sell the land in dispute and that he did not indicate or make any representation to any agent or to the Appellant that he intended to sell the land. It was his case that he did not

receive a kobo from the second Respondent as purchase price for the land in dispute and that the Appellant conspired with the second Respondent on the purported purchase of the land in dispute, without his authority and consent, and that when he became aware of the conspiracy, he made many trips from Abuja to Kaduna to register his disapproval.

The second Respondent did not file any process in the matter and did not take part in the trial. At the trial, the Appellant and the first Respondent called one witness each and tendered documents in proof of their respective cases. At the conclusion of trial the Lower Court delivered judgment wherein it dismissed the claims of the Appellant and granted the counterclaims of the first Respondent. The Appellant was dissatisfied with the judgment and he caused his counsel to file a notice of appeal dated the 13th of May, 2010 against it and the notice of appeal contained nine grounds of appeal.

?In ventilating the grievances of the Appellant in this appeal, his counsel filed a brief of argument, duty the 23rd of February, 2015 on the 24th of February, 2015 and the brief of arguments was deemed propely filed by

this Court on the 28th of May, 2015. Counsel to the first Respondent responded by a brief of arguments dated and filed on the 23rd of June, 2015.The second Respondent did not file any brief of arguments and he was not represented by counsel and did not take part in the appeal. At the hearing of the appeal, Counsel to the Appellant and to the first Respondent relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the Appellant distilled two issues for determination in this appeal and these were:

i. Whether the learned trial Judge understood the nature and character of the Appellant’s case as pleaded and applied the law appropriately thereto.

ii. Whether the first Respondent led credible and reliable evidence to establish his counterclaim as to justify?the judgment of the Lower Court in his favour.

?Counsel to the first Respondent adopted the two issues as formulated by Counsel to the Appellant. Reading through the records of appeal including the judgment of the Lower Court and the briefs of arguments of the parties, this Court agrees that there are two issues for determination in this appeal,

however, it is of the view that the first issue for determination, as formulated by the Appellant, is an aberration. It questioned the reasoning and understanding capacity of the trial Judge and not the decision of the Lower Court dismissing his claims. An issue for determination, to be relevant in an appeal, must challenge and be related to the decision appealed against, not the incapacity of the trial Judge who gave the decision. This Court will thus reframe the issues for determination in this appeal thus:

i. Whether the Lower Court was correct when it held that the Appellant did not lead credible and cogent evidence to sustain his claims.

ii. Whether the first Respondent led credible and reliable evidence to establish his counterclaim as to justify the judgment of the Lower Court in his favour.

In arguing the first issue for determination, Counsel to the Appellant stated that it was evident from the case of the Appellant on the pleading that his claims were rooted in specific performance of contract the subject matter of which related to land, and he thereafter refered to the cases of Best (Nig) Ltd Vs BH (Nig) Ltd (2011) 5 NWLR (Pt.1239)

95 and Gaji Vs Paye (2003) 8 NWLR (Pt 823) 583 on the nature and?character of a claim for specific performance. Counsel stated that it was elementary law that a, party can validly contract through an agent and that the contract would be enforced by the Court irrespective of whether the agent was appointed by parole, orally or verbally and he referred to the case of?Chike Vs Olusoga?(1997) 3 NWLR (Pt.494) 390. In urging this Court to hold that the second Respondent had the authority of the first Respondent to sell the land, Counsel referred this Court to the case Appellant that the first Respondent placed a notice on the land asserting ownership thereof and directing all enquiries on the land to the second Respondent; that the first Respondent indicated to one Banyakat A. Haruna, the plaintiff witness, a desire to sell the land and directed him to second Respondent for negotiations on the sale, that in furtherance of the representation they met and paid the agreed purchased price in the sum of N150,000.00 to the second Respondent who issued a receipt and thereafter let the Appellant into immediate possession of the land in dispute; that it was long after

these events that the first Respondent wrote two hand notes, Exhibit B and C, which show that the first Respondent was aware of the sale and this was after construction had been commenced on the land.

Counsel stated that the common denominator on the cases on specific performance is that it is a Court ordered remedy to give full effect to a contract and that the Lower Court erroneously treated the case of the Appellant as a claim for ownership of land and thus misapplied the law to the facts of the case and as such its crucial findings in the case were perverse and that this Court should intervene and make its own findings of fact; he referred to the case of IHABUHMB Vs ANYIP (2011) 12 NWLR (Pt.1260) 1. Counsel stated that the Lower Court did not place any premium on the receipt of payment issued to the Appellant by the second Respondent, Exhibit D, and that the receipt of payment was the best evidence of the existence of a transaction of purchase of land and that once the Appellant showed that he paid consideration for the land by virtue of Exhibit D, he became entitled to the order of specific performance directing the first Respondent to complete the

transaction and he referred to the case of Ikedigwe Vs Fai (2012) 10 NWLR (Pt.1308) 375. Counsel urged this Court to resolve the first issue for determination in favour of the Appellant.

In his response on the first issue for determination, Counsel to the first Respondent stated that for a trial?Court to order specific performance, there must be clear evidence of the existence of a valid contract and that the question under this issue for determination was whether there was a valid contract of sale of land between the Appellant, the second Respondent and the first Respondent. Counsel stated that the Appellant maintained that he purchased the land in dispute from the first Respondent through the second Respondent while the case of the first Respondent was that he never authorized the second Respondent to sell the land in dispute to the Appellant or to anyone else for the sum of N150,000.00 or for any sum at all.. Counsel stated that the Appellant did not testify in person and neither did he call the second Respondent as a witness to prove the authority given by the first Respondent to the second Respondent to sell the land and that the totality of the

evidence led by the Appellant through its sole witness and the documentary evidence tendered did not prove any such authority given to the second Respondent to sell the land in dispute. Counsel stated that for the act of an agent to bind his principal, there must be clear evidence establishing the authority given the agent by the principal to represent him and there was no direct evidence establishing that the first Respondent authorized the second Respondent to act on his behalf to sell the land in dispute and neither were there circumstances from which such authority could be inferred.

?Counsel stated that the burden of proving that the first Respondent authorized the second Respondent to sell the land in dispute was on the Appellant and there was nothing on record showing that the Appellant took any step to issue a subpoena to bring the second Respondent to Court as a witness. Counsel stated that the submission of Counsel to the Appellant that the order of specific performance ought to be made because the Appellant paid the sum of N150,000.00 to the second Respondent as consideration for the land in dispute and in evidence of which the second Respondent

issued Exhibit D was erroneous because the first Respondent cannot be bound by unauthorized acts of the second Respondent and he referred to the case of Esenkay (Nig) Ltd Vs Leventis Stores (1979) 3 LRN 43. Counsel stated that the notice board placed on the land in dispute by the first Respondent wherein he asserted his ownership of the land in dispute and directed all enquiries about the land to the second Respondent, tendered as Exhibit A, did not qualify as authority to the second Respondent to sell the land and neither did the purchase receipt issued by the second Respondent to the Appellant for the sum of N150,000.00 paid for the land. Counsel urged this Court to resolve the issue for determination in favour of the first Respondent.

In dismissing the claims of the Appellant, the Lower Court stated in the judgment thus:

“According to the learned counsel the standard of proof is based on Preponderance of evidence and balance of probability . . . Indeed that is the position of the law and in all civil matters the Court is properly guided by these authorities. The question then is based on the evidence of the plaintiff sole witness and in the light

of Exhibit A – F. Exhibit A is the signboard indicating that the land belonged to the 1st defendant and that 2nd defendant to be contacted while Exhibit B dated 14th February, 2001 is a stop work note from the 1st defendant and Exhibit C dated 16th of March, 2001 is another letter from 1st defendant warning the plaintiff to stop construction work on the land under reference and Exhibit D is the receipt issued by the firm of the 2nd defendant meant to be for payment of purchase price of the land under reference, it is dated 20th January, 2001 while Exhibit E is a letter from the plaintiff?s solicitor addressed to the 1st defendant… Are all these enough to constitute proof of the plaintiff s claim. The 1st defendant has denied authorizing the 2nd defendant to sell the land in question but was aware that when the 2nd defendant brought money to him meant for the purchase price of the land in question which according to him he rejected. The contention here is that while PW1 is claiming that it was the 1st defendant that told him to ask the plaintiff whether he was interested in the land or not. The witness PW1 however never mentioned who directed them to

the 2nd defendant for negotiation. The issue here is that even if it is the 1st defendant that directed the plaintiff to the second defendant to negotiate and that was done and 2nd defendant issued receipt in Exhibit D, it is not enough because there was no deed of sale agreement between the plaintiff or his agent and the 1st defendant or his agent for the plaintiff to have assumed possession of the land in question, especially considering the fact that Exhibit D, the receipt, was issued on 20th January, 2001 and on the 14th of February, 2001, three weeks after the purported negotiation and issuance of receipt a letter of protest was issued by the 1st defendant inspite of that construction work still went on.” (see pages 201 to 202 of the records)

The Lower Court continued its deliberations on the claims of the Appellant thus:

“The issue is that no one told this Honorable Court that any purchase price was given to the 1st defendant, the only one that can clarify this issue is the 2nd defendant and he has never entered appearance and the plaintiff has not called him to testify in Court and be cross-examined by the 1″ defendant. Thus, assuming the 2nd

defendant acted as an agent of the 1st defendant mere issuance of receipt by the 2nd defendant, in my view, is not enough, sales agreement should have been executed by both the plaintiff and the 1st defendant who is the owner of the land under reference. I am surprised that without that the plaintiff simply went into the land and started construction. The fact that protest letters were sent to the plaintiff he ought to know that something was wrong somewhere and he ought to have investigated to know what was going on but instead he simply ignored the protest of the owner of the land … There is nothing before this Honorable Court to show that the 2nd defendant had authority to even negotiate for the sale of the land under reference. The sum total of the plaintiff’s case is far short of proof of his case as to entitle him to judgment in terms of his claims … My view is that no reasonable tribunal can safely declare a transaction that was never there only on the basis of a receipt issued by 2nd defendant who was not called by the plaintiff to give evidence. There is no dispute that the land in question belongs to the 1st defendant as adjudged by my learned

brother Abiriyi J. The transaction alleged is not in any way perfected, therefore the claims of the plaintiff in its entirety fail and it is accordingly hereby dismissed.” (see pages 202 to 203 of the records)

The complaint of the Counsel to the Appellant under this issue for determination is that the Lower Court erroneously treated the case of the Appellant as a claim for ownership of land, instead of one for specific performance, and thus misapplied the law to the facts of the case and as such its crucial findings in the case were perverse and that this Court should intervene and make its own findings of fact. The question is – whether this assertion of the Counsel is correct?

Now a decision is said to be perverse where the Court ignored the evidence or the pleadings; or where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious and that this formed the basis of its decision; or that it went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or that it committed various efforts that faulted the decision beyond

redemption; or when the circumstance of the finding of facts in the decision are most unreasonable. The hallmark is miscarriage of justice – Onu Vs Idu (2006) 12 NWLR (Pt.995) 657, Momoh Vs Umotu (2011) 15 NWLR (Pt 1270) 217, Febson Fitness Center Vs Cappa Holdings Ltd (2015) 6 NWLR (Pt.1455) 263.

In the instant case, there was no contest on the identity of the land in dispute and neither was there any contest that the land in dispute belonged to the first Respondent, as affirmed by the judgment entered by the High Court of Kaduna State in an action commenced by the Appellant against the first Respondent over the ownership of the land in dispute in Suit No KDH/KAD/115/95, copy of the judgment was tendered as Exhibit F at the trial. The case of the Appellant was that subsequent to the judgment, he purchased the land in dispute from the first Respondent through the second Respondent, who acted as agent of the first Respondent, and paid the sum of N150,000.00 to the second Respondent and was issued with a. purchase receipt and let into possession of the land. The first Respondent maintained that he did not at anytime appoint the second Respondent as his

agent in respect of the land in dispute and neither did he authorize the second Respondent to sell the land to the Appellant or to anyone else for the sum of N150,000.00 or for any sum at all. The parties thus joined issues on the existence of an agent/principal relationship between the first Respondent and the second Respondent in respect of the sale of the land in dispute to the Appellant.

NWLR (Pt.1196) 307. This is in furtherance of the principle that in a civil suit, the person who asserts has the primary burden of proving the assertion and it is explained by the maxim “ei qui affirmat non ei qui negat incunbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt.878) 411,, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1. Thus, the onus, in the instant case, was on the Appellant to prove his purchase of the land in dispute from the first Respondent and, in doing so, prove the existence of the agency relationship between the first Respondent and the second Respondent.

Agency in law connotes the relationship which exists where one has authority or capacity to create a legal relationship between a person occupying the position of a principal and third parties. An agency can arise impliedly from the nature and condition of the parties or from the circumstances of the case. Generally, a relationship of agency exists in law when one person called ‘the agent’ is vested with authority to act on behalf of another called ‘the principal’ and he consents to act.

Whether that relationship exists in any given situation depends not on the precise terminology used by the parties to describe their relationship but on the true nature of the agreement or the exact circumstances of the relationship between the alleged principal and the alleged agent – Bamgboye Vs University of Ilorin (1991) 8 NWLR (Pt.207) 1, Delta Steel Nig Ltd vs American Computer Technology (1999) 4 NWLR (Pt.597) 53, Osigwe Vs PSPLS Management Consortium Ltd (2009) 3 NWLR (Pt.1128) 378.

In Niger Progress Ltd Vs North East Line Corporation (1989) 3 NWLR (Pt.107) 68 at 92, Nnamani, JSC stated that the relationship of principal and agent may arise in three ways (a) by agreement, whether contractual or not, between the principal and agent which may be express or implied from the conduct or situation of the parties; (b) retrospectively, by subsequent ratification by the principal of acts done on his behalf by the agent; (c) by operation of law under the doctrine of agency of necessity and in certain other cases. Agency may also arise by estoppels whereby the principal may be precluded from denying that another person acted on his behalf in an arrangement

with a third party – Trenco Ltd Vs African Estate and Investment Co Ltd (1978) 4 SC 9, Spasco Vehicle and Plant Hire Co Ltd Vs Alraine (Nigeria) Ltd (1995) 8 NWLR (Pt.416) 655 and Orji vs Anyaso (2000) 2 NWLR (Pt.643) 1.

?The case of the Appellant was that sequel to the judgment entered in favour of the first Respondent in Suit No KDH /KAD/115/95 on the ownership of the land in dispute, and in which the second Respondent acted as Counsel for the first Respondent, he surrendered possession of the land to the first Respondent and the first Respondent placed a signboard on the land asserting ownership thereof and directing all enquiries on the land to the second Respondent. It was his case that the first Respondent subsequently indicated to him, through one Bariyakat A. Haruna, a desire to sell the land and directed him to the second Respondent for negotiations and that he relied on the representation and approached the second Respondent and, after negotiations, he paid the agreed purchased price in the sum of N150,000.00 to the second Respondent on the 20th of January, 2001 and was issued with a receipt. It was his case that he was thereafter let into

immediate possession of the land in dispute and he commenced the construction of four units of two bedroom flats and which construction was at advanced stage and that he remained in undisturbed possession of the land until the 16th of March, 2001,, when the first Respondent came thereon and left a handwritten note for him saying that he was no longer willing to sell the plot of the land. It was his case that he caused his Solicitors to address a letter to the first Respondent through the second Respondent demanding that the first Respondent should desist from coming to trespass on the land.

The said Bariyakat A. Haruna testified as the sole plaintiff witness and he gave evidence that sometime in the year 2007, while he was living in the house of the Appellant, he was approached by the first Respondent who inquired if he was the new agent of the Appellant and that he answered in the affirmative and that the first Respondent pointed to the land in dispute as belonging to him and said that he had made up his mind to sell same and requested him to inquire if the Appellant was interested in buying the land. He testified that he spoke with the Appellant who

indicated interest and the first Respondent referred him to the second Respondent, whose contact address was on the signboard placed on the land in dispute, to discuss the price and that he went to see the second Respondent, in the company of the Appellant, and they agreed on the price of N150,000.00 and that they paid for the plot of land and were issued with a receipt and thereafter taken to the land and let into possession. He testified that while they were in possession of the land and were carrying on construction thereon, the first Respondent twice came and dropped handwritten notes and that the Appellant caused his Counsel to address a letter to the first Respondent.

?The witness tendered the signboard placed on the land in dispute by the first Respondent, the two handwritten notes, the purchase receipt and a copy of the letter of Counsel as Exhibits A to E respectively. Under cross-examination, the witness stated that the second Respondent did not show him any document pertaining to the land in dispute when they were negotiating and neither did he show him any power of attorney in respect of the land in dispute and he did not give them any tide

document to the land and that the first Respondent did not give him any title document to the land and further that the signboard, Exhibit A, did not say anything about the sale of the land in dispute.

The case of the first Respondent in response was that though the second Respondent represented him as Counsel in Suit No KDH/KAD/115/95, the second Respondent was not his estate agent and he never authorized the second Respondent to sell the land in dispute to the Appellant or to any one t all for the sum of N150,000.00 or at any price and that, since he lived and worked in Abuja, he only used the address of the second Respondent as his contact address on the signboard he put on the land. It was his case that when the second Respondent brought the sum of N150,000.00 to him in March 2001, he refused the money and insisted that he never authorized him to sell the land and directed that he should refund the money to the person who paid to him and he did not know what the second Respondent did thereafter and he changed his Counsel. It was his case that he did not indicate or make any representation to any agent or to the Appellant that he intended to sell the

land. And that he did not receive a kobo from the second Respondent as purchase price for the land in dispute.

The first Respondent gave evidence in the exact terms of his case on the pleadings and under cross examination he reiterated that he did not know the plaintiff witness and did not have any prior dealings with him in respect of the land in dispute and that he did not authorize the second Respondent to sell the land in dispute and that when he found the Appellant building on the land, he wrote him to stop work and that he put the name of the second Respondent on the signboard he put on the land because that was his lawyer at the time.

?These were the respective cases made out by the parties on the issue of the purchase of the land and of the agency of the second Respondent. It is clear that there is nothing to choose between the oral evidence of the plaintiff witness and that of the first Respondent on the question of whether the first Respondent authorized the second Respondent to sell the land in dispute and for that the first Respondent represented to the Appellant that the second Respondent had authority to sell the land in dispute. The

signboard tendered by the Appellant as Exhibit A carried information to the effect that the first Respondent was the owner of the land and directed all enquiries about the land to the second Respondent; it did not say anything about sale of the land in dispute. The first Respondent stated that he only used the address of the second Respondent as his contact address on the signboard because he lived and worked in Abuja at the time. The hand written note, Exhibit B, was dated the 14th of February, 2001 and it read thus:

“Dear Engineer,

Please I have discussed with the lawyer. The decision is that work cannot continue until my money (N200,000) is fully paid.

Please be kind to stop work. I never knew the lawyer collected any money from you till today.

Thanks

Femi Olumeyan”

The handwritten note, Exhibit C, was dated the 16th of March, 2001′ and it read thus:

“Lt. Col. N Yusuf s Engineer,

I have told you to move out of my land. Please stop work. I am warning you. Enough is enough. I am not again selling this land. Stop work. You are rushing this job.

Femi Olumeyan.”

?The two notes were written after the alleged sale

of the land in dispute by the second Respondent to the Appellant on the 20th of January, 2001, and neither of them affirmed that any authority was given by the first Respondent to the second Respondent to sell the land nor did they ratify the alleged sale of the land by the second Respondent. Ratification is the approval by the principal of the action of his agent where the agent acted without authority – Shell Petroleum Development Company (Nigeria) Ltd Vs Okogbo (2011) LPELR-CA/PH/289/2006. Neither of the two notes conveyed any such approval, rather they conveyed the disagreement of the first Respondent with the said sale.

Thus, Exhibits A to C did not add any value to the case of the Appellant that the first Respondent authorized the second Respondent to sell the land in dispute and/or that the first Respondent represented to the Appellant that the second Respondent had authority to sell the land in dispute. The receipt issued by the second Respondent acknowledging payment of the sum of N150,000.00 by the Appellant, Exhibit D, did not also advance the case of the Appellant on the point and neither did the Solicitor letter, Exhibit E, as it merely warned the

first Respondent to stay away from the land in dispute.

?In civil suits, cases are won upon a preponderance of evidence. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Onwuka Vs Ediata (1989) 1 NWLR (Pt 96) 182, Mbani Vs Bosi (2006) 11 NWLR (Pt.991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt.1014) 71. A case is decided on the totality of evidence adduced. Therefore, if on any given issue, the evidence of the claimant be as good as that of the defendant so that there is an equilibrium, it is the party on whom rests the burden of proof that fails. This is because the evidence does not preponderate in such party’s favour – Ezukuru vs Ukachukwu (2000) 1 NWLR (Pt. 642) 657, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt.1127) 194.

In other words, if two possibilities are equally compatible with an evidence, neither one can be said to have been proved. This is because evidence which leads as reasonably to one hypothesis as to another tends to prove neither and such

evidence will not support a judgment in favour of the party having the burden of proof. The evidence of facts and circumstances on which a claimant relies and the inferences logically deducible therefrom must so preponderate in favour of the basic proposition it is seeking to establish as to exclude any equally well supported belief in any inconsistent proposition – Ogunro Vs Arowolo (1998) 6 NWLR (Pt 552) 78. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt.141) 735 at page 751 thus:

“It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or tribunal of the probability of his case rather than that of the opponent on the point in issue …”

Thus, it is not enough for a claimant in a civil suit to set up a case which is a “little more probable” than the case put forward by the defence, or of which the highest that can be said is that in the absence of better evidence, there are some grounds for accepting it.

It is not an argument that the scales are evenly weighted, for evidentially in that case he does not discharge the onus – Nwokafor Vs Udegbe (1963) 7 SCNLR 184, Odiete Vs Okorie (1973) NMLR 175, Owoade Vs Omitola (1988) 2 NWLR (Pt 77) 413, Sarhuna Vs Lagga (2002) 3 NWLR (Pt.754) 322, Eyo vs Onuoha (2011) 11 NWLR (Pt.1257) 1.

The Appellant, in the instant case, did not lead sufficient evidence before the Lower Court to establish any of the recognized ways of creation of an agency relationship between the first Respondent and the second Respondent and did not thus preponderate his case over that of the first Respondent on the question of whether the second Respondent was authorized by the first Respondent to sell the land in dispute. This failure of the Appellant to discharge this onus meant that the acts of the second Respondent in selling the land in dispute to the Appellant, collecting the sum of N150,000.00 therefor and in letting the Appellant into possession cannot be binding on the first Respondent. The Lower Court was thus on firm ground when it held that the Appellant did not lead credible and cogent evidence to sustain his claims. The first issue

for determination is resolved against the Appellant.

On the second issue for determination of whether the first Respondent led credible and reliable evidence to establish his counterclaim as to justify the judgment of the Lower Court in his favour, Counsel to the Appellant stated that a counterclaim is by its nature a cross action and that the burden was of the first Respondent to establish his counterclaim and he referred to the case of Obasi Bros Co Ltd Vs MBAS Ltd?(2005) 9 NWLR (Pt.929) 17.

Counsel stated that the principal relief on the counterclaim was a declaratory relief and it was therefore incumbent on the first Respondent to establish same as not even an admission on the part of the Appellant in his pleadings will negative the burden of proof on the first Respondent and he referred to the case of Akande Vs Adisa (2012) All FWLR (Pt 635) 250, amongst many others. Counsel reiterated the established principle of litigation that the parties and the Court are bound by the pleadings of the parties and he referred to the case of Ohunchukwu Vs Att-Gen, Rivers State (2012) All FWLR (Pt.626) 412, amongst others, and he stated that entire case of the

first Respondent on the pleadings on the counterclaim consisted of denials, that he did not authorize the second Respondent to sell the land in dispute, and that these denials were put to lie by the contents of Exhibits B and C. Counsel stated that the Lower Court ought to have dismissed the counterclaim on this ground alone as it showed that the case of the first Respondent was inconsistent, and which is contrary to the admonition of the Courts that parties must be consistent in presenting their cases and he referred to the cases of Emmanuel Vs Gomez (2009) 7 NWLR (Pt.1139) 1 and Adeosun Vs Governor of Ekiti State (2012) All FWLR (Pt.619) 1044. Counsel urged this Court to resolve the issue for determination in favour of the Appellant.

?In his response, counsel to the first Respondent noted that the Appellant did not file any defence to the counterclaim and stated that the counterclaim was predicated on trespass by the Appellant into the land in dispute and for which the first Respondent claimed damages injunction. Counsel stated that the first Respondent led credible evidence to prove that upon the affirmation of his ownership of the land in dispute by

the High Court of Kaduna State in suit No KDH/I3D/15/95, he affixed a signboard on the land in dispute asserting his ownership of the land. counsel stated that there was evidence before the Lower Court that the Appellant went unto the land without the consent of the first Respondent, removed the signboard and constructed four units of two bedroom flats and that the law is that having failed to prove ownership of the land, the acts of the Appellant thereon became acts of trespass and he referred to the case of Fasoro v. Beyioku (1988) 2 SCNJ 23. Counsel stated that the just Respondent pleaded and led unchallenged evidence on the damages he suffered by reason of the acts of trespass of the Appellant and that the Lower Court was thus justified in entering judgment for the first Respondent on the counterclaim and he urged the Court to resolve the issue for determination in favour of the first Respondent.

In its deliberations of the counterclaim of the first Respondent, the Lower Court stated in the judgment thus:

“….looking at the entire evidence before the Court including all the exhibits tendered the land situated and located at Gonin Gora

along Kaduna-Abuja Express Way is the property of the 1st defendant. That the decision in Exhibit f by Abiriyi Judge and there was no appeal against such a decision, there is nothing before me to suggest otherwise. The 1st defendant counterclaimant while giving evidence denied the fact that he authorized the 2nd defendant to negotiate and sell the land under reference as alleged by the plaintiff. It is the duty of the plaintiff to prove that the 2nd defendant has the 1st defendant’s authority to so sell the property which in my view they have failed to prove. The 1st defendant has therefore succeeded in his counterclaim …”

(See page 203 of the records)

As stated earlier, it was not in contest that the land in dispute belonged to the first Respondent, as affirmed by the judgment entered by the High Court of Kaduna State in Suit No KDH /KAD/115/95 and a copy of the judgment was tendered as Exhibit F. It was also not in contest between the parties, and there was evidence before the lower Court, that the first Respondent took possession of the land after the said judgment and he put a signboard thereon asserting that he was the owner of the land, the

signboard was Exhibit A. It was also not in contest between the parties’ and there was evidence before the Lower Court, that the Appellant went unto the land in dispute and removed the signboard of the first Respondent and he commenced construction thereon and that he continued the construction despite warning notes from the first Respondent to desist therefrom; the notes were Exhibits B and C.

actual of constructive possession of another – Olaniyan vs Fatoki (2003) 13 NWLR (Pt.837) 273. In other words, trespass, in relation to landed property means an unjustified intrusion or interference with possession of land – Echere vs Ezirike (2006) 12 NWLR (Pt 994) 386 and Osu vs Nwadialo (2009) 12 NWLR (Pt.1155) 286.

The Appellant sought to justify his entry into and construction on the land in dispute on the basis of. alleged purchase of the land from the second Respondent, acting as agent of the first Respondent. The Lower Court found, and this Court has agreed, that the Appellant failed to prove that the second Respondent was authorized by the first Respondent to sell the land and that as such the acts of the second Respondent were not binding of the first Respondent in respect of the alleged sale of the land in dispute. The law is that where a party alleges acts of possession carried out on a piece of land in dispute in support of a claim of ownership of the land and he fails to prove the ownership pleaded and claimed, the acts of the party on the land cease to be acts of possession and they automatically become acts of trespass and will

sustain a finding of trespass against the party – Adebayo vs Ighodalo (1996) 5 NWLR (Pt 450) 507, Egbuta vs Onuna (2007) 10 NWLR (Pt.1042) 298, Ajikanle vs Yusuf (2008) 2 NWLR (Pt.1071) 301. The case of the first Respondent in trespass thus succeeded without more and he was entitled to his claims in damages and for injunction – Olorunfemi vs Asho (1999) 1 NWLR (Pt.585) 1 and Egwa vs Egwa (2007) 1 NWLR (Pt.1014) 71. The lower Court cannot thus be faulted for entering judgment in favour of the first Respondent on the counterclaim. The Appellant did not complain against the sum of N500,000.00 awarded as damages for trespass by the lower Court and as such this Court cannot touch the award. The second issue for determination is also resolved against the Appellant.

In conclusion, this Court find that the Appellant has not given it any reason to tamper with the judgment of the lower Court. The appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Kaduna state delivered on the 15th of February, 2010 in Suit No KDH /KAD/477/2001 by Honorable Justice Othman AbdulKadir is hereby affirmed. The first Respondent is awarded the cost of this

appeal assessed at N50,000.00. These shall be the orders of this Court.

UWANI MUSA?ABBA AJI, J.C.A.: I read in draft the lead judgment of my learned brother, Habeeb A.O. Abiru JCA, just delivered.

I agree with the reasoning and conclusions of my learned brother that the appeal lacks merit and it is also dismissed by me for the reasons therein stated in the lead judgment of my learned brother.?

The judgment of the lower Court delivered on the 15/02/2010 is hereby affirmed.

I endorse the consequential orders made including orders as to costs.

AMINA AUDI WAMBAI, J.C.A.: I had a preview of the lead Judgment delivered by my learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA. My learned brother has considered all the salient issues in the appeal. I agree with his reasoning and conclusion that there is no merit in the appeal and I have nothing to add. In consequence thereof, I too dismiss the appeal and affirm the Judgment of the lower Court delivered on 15/02/2010 by Hon. Justice Othman Abdulkadir in suit No. KDH/KAD/477/2001.

I also award cost of N50,000.00 in favour of the 1st

Respondent.

Appearances

R.J. Dakun with him, A Joshua and E.F. NagogoFor Appellant

AND

Mr. Basil C. Nwogu for the first Respondent

No appearance for the second RespondentFor Respondent