POPOOLA & ORS v. TAIWO (2020)

POPOOLA & ORS v. TAIWO

(2020)LCN/15256(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/L/383/2001

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

(1) KAYODE POPOOLA (2) YOMI POPOOLA (3) SEGUN DEMUREN APPELANT(S)

And

FEMI TAIWO RESPONDENT(S)

RATIO

WAYS OF ESTABLISHING TITLE TO LAND

In Nigeria, there are five (5) established ways of proving title to land which were stated in the locus classicus case of Idundun V. Okumagba (1976) 9-10 SC 227 and in several later decisions of the Supreme Court. See the case of Aigbobahi & Ors V. Aifuwa & Ors. (2006) LPELR 267, where Onnoghen JSC (as he then was) reiterated the settled principle of law as follows:
“The law recognises five distinct ways in which title to or ownership of land in Nigeria could be proved as stated by the Supreme Court in the case of Idundun v. Okumagba (1976) 9-10 S, C 227, These are: (a) By traditional evidence (b) By production of documents of title duly authenticated and executed.

(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (d) By acts of long possession and enjoyment, and (e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. In an action for declaration of title to land, as in the instant case, a plaintiff need not prove all the five ways….”
Whichever way or method from the stated methods a plaintiff chooses to prove his title to the disputed land, he has the onus to convince the Court by credible evidence of his entitlement to such declaration. In other words he must rely on the strength of his case to prove his title regardless of what the defence is to the action. See also Itauma V. Akpe-Ime (2000) 7 S. C. (pt. II) 2 and Moses Okuarobo & Ors V. Chief Egharevba Aigbe (2002) 9 NWLR (pt.771)29. PER ALIYU, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL JUDGE TO EVALUATE EVIDENCE AND ASCRIBE PROBABTIV VALUE TO IT

WHETHER OR NOT A DEAD PERSON HAS THE LEGAL CAPACITY TO ENTER INTO A CONTRACT

It is a settled fundamental principle of law that a dead person has no legal capacity having ceased to exist in the eyes of the law. Such dead person totally has no capacity to enter into any contract with a living person. See APC V. INEC & Ors. (2014) LPELR- 24036 and Hitech Construction Co. Ltd V. Ude & Ors.(2016) LPELR- 40066.
It therefore means Exhibit ‘F’ upon which the claim of the Appellants (plaintiff) was predicated spoke a lie in the sense that it was not issued and signed by the person it named as its issuer. A Contract cannot be entered by or on behalf of deceased person. Worse still, there was no evidence of the payment of any money for the land by the Appellants/plaintiff to the deceased J. A. James when the latter was alive. PER ALIYU, J.C.A.

THE IDENTITY OF A LAND

The identity of the land in dispute means the portion, the area covered, its size, the features by which it is described and known by both parties. Indeed it appeals to common sense and logic that the land in dispute must be clearly identified by the claimant of title to same. The purpose of this principle of law was explained by the Supreme Court in Offodile V. Offodile (2019) 16 NWLR (pt.1698) 189 at 203 paragraph A-B, quoting and following its earlier decision in Elias V. Omo-Bare (1982) 5 SC 25 (per Coker JSC) that:
“The purpose is to enable the parties and any other person claiming (through them) to know precisely the area of land to which the judgment or order relates for the purpose of enforcement of the decision of the Court. It is also important for the purpose of obviating possibility of future litigation of that particular area of land as between the parties and their privies.”
See also Ayanwale V. Odusami(2011) 12 SCNJ 362. PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Lagos State High Court sitting at Ikeja, delivered on the 23rd March, 2001 in respect of Suit No: ID/1058/91. The Appellants were the Plaintiffs while the Respondent was the defendant. By their writ and amended statement of claim (contained in pages 3 to 6 of the record of appeal), the Appellants claimed the following declaratory reliefs against the Respondent:
1. A DECLARATION of entitlement to a certificate of occupancy in respect of the land at No. 126, Obafemi Awolowo way, Balogun Bus Stop, Ikeja Lagos which land is as delineated in Plan No. LAL/1504.89 dated 19th October, 1989 and in Plan No. YEM.175b dated 23rd June, 1975 and registered as No. 12, at page 12 in Volume 1512 of the Lands Registry office at Lagos.
2. AN ORDER of perpetual injunction restraining the Defendant, his agent, servants and/or privies from committing further acts of trespass on the Plaintiff’s land.
3. N100,000.00 (One Hundred Thousand Naira) being Special Damages for the cost of the parameter fence with gate house and locks

4. N10,000.00 general damages
5. Aggravated damages.

The case of the Appellants (as plaintiff) before the trial Court as stated in his amended statement of claim, was that he was the owner of a piece of land situate and lying at No. 126, Balogun Bus stop, along Obafemi Awolowo way, Ikeja, formerly known as Isheri Road, Ikeja, Lagos. He traced his title to the said land to one Owodina who was the original owner of the land in free simple. On the 4th January 1904, the said Owodina sold the land to Odebiyi Ajabo (also known as Odobiyi), who in turn sold the land to Lawani Balogun aka Lawani Alagbon or Lawani Giwa, whose title to the said land was declared on the 28th April, 1955 in a statutory declaration sworn on that date before Magistrate Court Ikeja. Upon the death of Lawani Balogun, the land devolves to one of his sons Dawudu Balogun.

By a registered deed of conveyance dated 1/7/1975, Dawudu Balogun conveyed the land to one Mr. J. A. James, also known as Olu James. The said Mr. James died in 1977 and the information regarding the death of Mr. James was conveyed to the Appellants by Mr. James’ son, through a letter dated 15/2/1077. The Appellants then purchased the said land from Mr. A James for a consideration of N10,000 and having been paid in full, Mr. James put the Appellant in full possession of the disputed land. They claimed to be in full possession of the said land since 1977 and caused a deed of assignment to be prepared by his solicitors in preparation for an application for the Governor’s consent.

The Appellants’ predecessor (plaintiff) also caused a survey plan of the land to be prepared and erected a perimeter wall fence with a gatehouse on the land and in addition their predecessor in title submitted development plan for approval to the state Government. He claimed that the only reason why he delayed developing the land was because of a dispute on same that was before the High Court in suit No: ID/1247/90, instituted by one Eneramoh Musa Atta against Dawudu Balogun and the Plaintiff’s vendor Mr. Olu James. That suit was dismissed in May 1991. But that even while the suit was still in Court, the Respondent trespassed in to the said land with the help of thugs and some army officers, destroyed the perimeter wall fence erected by the Appellants and commenced building on the land mainly at nights. The Appellants claimed that the Respondent was issued a contravention notice and a stop building order in April 1991 he ignored the said notice and continued building on the land. Upon these facts the Appellants prayed the trial Court for the stated declaratory and injunctive reliefs.

The Respondent(as the defendant) filed an amended statement of defence (see pages 7 to 12 of the record) thereby denying the claims of the Appellants. He asserted that he is the holder of a Certificate of Occupancy No: 61/61/1991W in respect of the land in dispute, as such, he is entitled to the exclusive possession of the land and the property situate at 126 Obafemi Awolowo way, Ikeja Lagos. He traced his title to one Eneyiramo Musa Atta from whom he purchased it for N50, 000. Eneyiramo Musa Atta was given the land as an outright grant (gift) to him by the original Land Lord, Chief Lawani Balogun for services rendered to him by Atta. The family of Musa Atta had enjoyed various acts of exclusive possession of the land including building mud house on it, celebrating births of their children, payment of ground rents, NEPA receipts etc. The Respondent asserted that since he purchased the land in 1977, he had enjoyed peaceful and exclusive right of ownership and possession of same, including building a structure on it up to first decking level, and presently it houses the headquarters of Tools and Allied Products Nigeria Ltd, a company for which the Respondent is the Managing Director. The Respondent therefore counter-claimed against the Appellants as follows:
1. A DECLARATION that by virtue of Certificate of Occupancy No.6 page 61 Volume 1991W and various and numerous acts of ownership and possession since 1977 the Defendant is the legal and bona fide holder of a statutory right of occupancy in respect of land situate at 126 Obafemi Awolowo way, Ikeja.
2. A PERPETUAL INJUNCTION restraining the Plaintiff, his agents, servants and privies from acts of trespass to the Defendant’s land and property together with appurtenances thereto situate at 126, Obafemi Awolowo way, Ikeja.
3. N100,000 being general damages for various acts of trespass committed on the Defendant’s property at No: 126 ObafemiAwolowo, way, Ikeja.

During the trial, the Appellants (plaintiff) testified and called three other witnesses in support of his claim. The Respondent (defendant) also testified and called two other witnesses in defence of the Appellant’s claims and in support of his counter claim. Both parties tendered documents and at the end of hearing witnesses, counsel filed their respective final written addresses, adopted same and the matter was subsequently adjourned for judgment. The learned trial Judge in his judgment preferred the evidence adduced by the Respondent over that of the Appellants and accordingly entered judgment in favour of the Respondent as per his counter claim. The Appellants’ case was dismissed.

Dissatisfied with the judgment of the trial Court, the Appellants appealed against same through their notice of appeal filed on the 28th May 2001, relying on five (5) grounds of appeal, thereby prayed the Court to allow the appeal and set aside the judgment of the trial Court.

The record of appeal was transmitted on the 10th February, 2006 but deemed properly transmitted on the 1st March, 2006. The Appellants’ brief of argument settled by Babatunde Kasunmu Esq., was filed on the 18th February 2013,containing 19 pages of argument and submission. At page 2 paragraph 3.1 of the said brief, the Appellants distilled three issues for determination from the five grounds of appeal thus:
1. Which of the two (2) parties to this appeal has by credible evidence established its claim for a declaration to a Certificate of Occupancy or declaration of title in respect of the land in dispute? Distilled from grounds 3&4
2. Was the trial Judge right when she held that since the land in dispute is not included in the letters of administration Exhibit H the Plaintiff cannot pay or buy from J. A. James or PW2 what they do not have? Distilled from ground 2 of the notice of appeal.
3. Whether the identity of the land contested between the parties was in dispute? Distilled from ground 5 of the notice of appeal.

The Respondent’s brief of argument settled by S.A. Adesanya Esq., was filed on the 1st December, 2014 but deemed properly filed on the 22nd May 2019. The Respondent adopted the issues formulated by the Appellants for the determination of the appeal.

The appeal came up for hearing on the 11th March, 2020. The Appellant’s counsel was served with hearing notice but he was absent without any explanation. The Respondent was represented by his Counsel S.A. Adesanya Esq., leading Blessing O. Jaiyeola Esq., and they applied to the Court to proceed with the hearing of the appeal since all the briefs were in. He equally applied that the appeal be deemed argued by the Appellants in terms of their brief of argument filed on the 18th February, 2013. The application was granted pursuant to Order 19 Rule 9 of the Court of Appeal Rules 2016, deeming the appeal argued in terms of Appellants’ brief. Adesanya Esq., adopted the Respondent’s brief of argument and prayed the Court to dismiss this appeal.

Clearly, the parties are in agreement on the three (3) issues distilled from the five grounds of appeal by the Appellants and I have seen no reason to disagree with them. I adopt the Appellants’ three issues for my determination of this appeal.

ISSUE ONE
This issue distilled from grounds 3 and 4 of appeal is which of the two parties in this appeal has by credible evidence established its claim for a declaration to a certificate of occupancy or a declaration of title in respect of the land in dispute.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In arguing issue one, the learned counsel for the Appellants submitted that where two parties claim to derive title to a disputed land from the same grantor as in this case, the applicable principle of law is that the later in time of the two contesting parties to obtain the grant cannot maintain an action against a party who first obtained a valid grant from the common grantor. He relied on the case of Tewogbade V. Obadina (1994) 4 NWLR (pt. 338) 326 at 347-348 in support.

The learned counsel referred to the case put up before the trial Court by the Appellants as contained in their amended statement of claim filed on 8/7/96 and reply to the amended statement of defence, the defence to counter claim filed on 5/11/98; and the evidence of their witnesses including the evidence of PW1, (Dauda Balogun), the son of the common grantor of the disputed land. He then compared their case to that put up by the Respondent as disclosed in their pleadings and counter claim and the evidence of their witnesses led before the trial Court. He submitted that clearly, the original owner of the land was Lawani Balogun and that the Appellants were able to trace their title to the disputed land to the original owner through Dauda Balogun (his son) to J. A. James who bought the land from Dauda Balogun. In contrast, he contended that the Respondent failed to establish how Musa Atta derived title from the original owner before it was transferred to him. He further drew the Court’s attention to the evidence of PW1 (pages 16-17 of the record of appeal) to the effect that Musa Atta was one of the labourers of his father, who occupied one of the three structures that was on the disputed land. That even assuming it is argued that the disputed land was not given to the PW1 alone, but it devolved to all the children of Lawani Balogun including PW1, and he decided to sell it to the PW2’s father, such sale can only be challenged by the other children of Lawani Balogun and as long as there is no such challenge, the title to the disputed land will pass to whosoever PW1 sold it to.

It was further argued that Musa Atta from whom the Respondent claimed title to the disputed land, was not called to give evidence of the outright grant of the disputed land to him by Lawani Balogun, the original owner. He further submitted, relying on the case ofEjiniyi V. Adio (1993) 7 NWLR (pt. 305) 320, that in transferring absolute title to land under native law and custom, it is necessary that it should be concluded in the presence of witnesses who saw the actual handing over of the property to the purchaser.

The learned Appellants’ Counsel further argued that, in this case, the failure of the Respondent to call evidence to show the dimension and extent of a piece of land which he claimed was subject to a gift was fatal to his claim for a declaration of title, especially when the original grantor did not show the extent of the land allegedly gifted to Musa Atta. It was submitted that the trial Judge was wrong to hold at page 72 of the record that the only way to know that the disputed land was an outright gift to Musa Atta was the fact that he had built on the land and lived there for about thirty years. That the trial Court failed to consider when the alleged gift was made by the original owner, whether it was in 1954 or after that year in view of the fact that the original owner of the land (Lawani Balogun) made a statutory declaration of title to the said land including the three houses built thereon (shown in the survey plan) in 1954 and he died in 1959. The learned Appellants’ counsel therefore argued that the evidence of the Respondent to the effect that Musa Atta built a mud house on the land cannot be correct, since the houses existed as at 1954. It was submitted that the Appellants have successfully discharged the burden of proof by the credible evidence of their witnesses, which was of the highest probative value in strength and sufficiently outweighed the evidence adduced by the Respondent.

In arguing issue one, the learned Respondent’s counsel submitted on the authority of the cases of Kodilinye V. Mbanefo Odu (1935) 2 WACA 336, Egonu V. Egonu (1978) 11-12 SC 111 and many others, which established the principle of law that in a claim of title to land, the plaintiff must succeed on the strength of his case and not on the weakness of the defence. He posited that in this case, the learned trial Judge followed and applied this principle of law and found that the Appellant failed to discharge this burden on him; and having found at page 69 of the record of appeal that there was no basis for action because the Court found that the Appellant’s claim was in respect of a different land from the one in issue before the trial Court.

It was further submitted that, it was the primary duty of the trial Court to evaluated the adduced evidence before it and make finding thereon. And in this case, the learned trial Judge indeed correctly evaluated the evidence both oral and documentary before reaching the decision. That this Court being an appellate Court will only interfere with the findings reached by the trial Court if the Appellants convinced us such findings reached by the learned trial Judge on the evidence adduced before it was unsound, or perverse. The learned counsel placed reliance on Ehimua V. National Oil & Marketing Company Ltd (1995) 5 NWLR (pt. 398) 642 and Overseas Construction Company Nigeria Ltd V. Creek Enterprises Nigeria Ltd (1985) 3 NWLR (pt. 13) 407 in support.

In response to the argument of the Appellants on the principle of law established in the case of Tewogbade V. Obadina (supra), the learned Respondent’s counsel argued that the facts of this case are distinguishable with the facts in the cited case because in this case, the original owner of the land Lawani Balogun did not make two grants of the same land. That from the evidence adduced at the trial, the trial Court found as a fact that Lawani Balogun made only one grant of the land in dispute to Eneyiramoh Musa Attah from whom the Respondent derived his title. The Court was urged not to disturb this finding and to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUE ONE
This appeal is predicated on a declaration of title to land. In Nigeria, there are five (5) established ways of proving title to land which were stated in the locus classicus case of Idundun V. Okumagba (1976) 9-10 SC 227 and in several later decisions of the Supreme Court. See the case of Aigbobahi & Ors V. Aifuwa & Ors. (2006) LPELR 267, where Onnoghen JSC (as he then was) reiterated the settled principle of law as follows:
“The law recognises five distinct ways in which title to or ownership of land in Nigeria could be proved as stated by the Supreme Court in the case of Idundun v. Okumagba (1976) 9-10 S, C 227, These are: (a) By traditional evidence (b) By production of documents of title duly authenticated and executed.

The Appellants claimed the title to the disputed land through Dawudu Balogun (PW1), who claimed that he inherited the land from his father Lawani Balogun and sold it to Mr J. A. James from whom the plaintiff said he bought same at cost price of N10, 000. Thus the Appellants’ claim of title to the land in issue is by purchase from J. A. James. In his evidence as PW1, Dawudu Balogun tendered three documents namely, statutory declaration of title to land (Exhibit ‘A’), copy of conveyance between him and J. A. James (Exhibit ‘B’) and declaration of title to land made in May 1991 (Exhibit ‘C’). See pages 16 to 20 of the record of appeal. The testimony of PW2, Joseph Abiola James is contained at pages 21 to 23 of the record whereby he relied on Exhibit ‘F’ the receipt of purchase of the disputed land, which he issued after his father’s death to the Appellant. The Appellants (plaintiff’s) evidence at the trial Court is contained at pages 23 to 29 of the record of appeal in which they relied on exhibits B together with the survey plan attached to it for his/their entitlement to the title of the land in dispute.

In his judgment, the learned trial Judge listed all the documentary exhibits relied upon by the Appellants and compared them with the oral evidence led. See pages 66 to 75 of the record of appeal. His Lordship then found the following facts after the analysis of the evidence before him that:
1. The plaintiff (Appellants) did not properly describe the land he was claiming because PW1 through whom he claimed title admitted that there were many pieces of land at Isheri Road Ikeja not just one.
2. The plaintiff/Appellants did not prove any conveyance from late J. A. James through whom they claimed they purchased the land. The Appellants/Plaintiff was therefore never in possession of the land. The letter of PW2, i.e. late J.A. James’ son, is not a conveyance document.
3. The Appellants/plaintiff claimed that the land purchased from J. A. James had a structure on it built by Lawani Balogun, but the receipt of payment for the land, Exhibit ‘F’ clearly stated that the land it related to was a “plot of land.”
4. The evidence of the PW1 (Dauda Balogun) clearly showed that Musa Atta through whom the Respondent claimed the title to the land was living at No. 126 Awolowo Way and could not have been the land allocated to him, because he said he was allocated the third building, which his father used as the farm house.
5. The it was clear from the evidence that Musa Atta through whom the Respondent/defendant derived title to the land situate at No. 126 Awolowo Way was an outright gift made by the father of PW1. There is evidence before the Court showing that the Musa Atta lived on the land for about 30 years, which means he was in active possession for that number of years with his children. There was no evidence that he ever paid rent on the said land to anyone.
6. That PW1 Dauda Balogun through whom the Appellants claimed title to the land at 126 Awolowo Road was talking of a vacant land, which he sold to J. A. James while the land claimed by the Respondent is the one situated at No. 126 Awolowo Way Ikeja.
7. That the evidence of title of the Respondent was straight forward and uncontradicted in all material facts in respect of the said land especially as the Musa Atta, his vendor was living on it at the time he bought it in 1977 and he allowed him to continue living thereon because he did not want the house on the land to be left vacant.
8. The evidence led by the Respondent showed that there was a four room mud building on the land with two shops in front which he took photographs of before and after demolition of same, Exhibits ‘S1 to S21 and there was no evidence before the Court showing the Respondent was challenged by anyone for demolishing the said buildings on the land.
9. That the Appellants/plaintiff failed to prove his case against the Respondent/defendant, but that the Respondent proved his counter claim as required by law.

It is a settled fundamental principle of law that the primary duty of evaluation of evidence and ascribing probative value to it is the exclusive preserve of the trial Judge. This is because he had the unique opportunity of seeing, hearing and observing the demeanour of the witnesses, which the Appellant Court does not have. See Usufu V. State (2006) LPELR-11790 (CA) and Anwadike & Anor. V. Anwadike & Ors. (2019) LPELR-46970 (CA). From the record of this appeal, particularly the judgment of the trial Court appealed against, there is no doubt that the learned trial Judge properly evaluated the evidence led before him and adequately appraised the facts of the case before reaching the conclusions afore mentioned. In the circumstance, as an Appellate Court, I can only apply the stamp of affirmation on the judgment of the trial Court, because I am in absolute agreement with the well-considered finding of facts of the trial Court in this case, which were based on the analysed evidence led by the parties. Clearly, the evidence of the Appellants/Plaintiff was uncertain, contradictory and manifestly unreliable to support his claim of a title to the land situate and lying at No. 126 Awolowo Way, Ikeja. The learned trial Judge was right to prefer and accept the evidence of the Respondent in support of his counter claim. I have no hesitation in resolving issue one against the Appellants and it is resolved against them.

ISSUE TWO
This issue, distilled from ground two of appeal is was the learned trial Judge right when he held that since the land in dispute is not included in the letters of administration – Exhibit ‘H’, the plaintiff cannot pay or buy from the late J.A. James or PW2 what they did not have?

In arguing this issue, the Appellants’ learned counsel referred to the evidence of PW2 (pages 21-22 of the record) to the effect that his father sold the disputed land to the Appellant during his lifetime but that the Appellant did not complete payment before the death of his (PW2’s) father. After his father died, PW2 requested the Appellant to pay the balance of the purchase price which Appellants did and PW2 issued a receipt to the Appellants. That if the father of PW2 had sold the land to the Appellants before his death, it means that only the real property of the late Mr. James that were not disposed of at the time of his death would appear in the letters of administration (Exhibit ‘H’). It was submitted that the learned trial Judge was wrong to hold that the late father of PW2 had nothing to sell in view of the fact that the disputed land was not included in the letter of administration of his estate, that is, Exhibit ‘H’.

The learned Respondent’s counsel on the other hand argued issue two from pages 11 to 15 of the Respondent’s brief. He submitted that the Appellants/plaintiff could not have paid or bought from late Mr James or from PW2 the land that they did not have. That the evidence of PW2 at the trial was that his father bought the land he was claiming from the Balogun family. It was not his testimony that his father bought the land from Lawani Balogun and this testimony was confirmed by Exhibit B, a photocopy of conveyance between PW2’s father and PW1 (Dauda Balogun). The Court was urged to note that both Exhibits ‘B’ and ‘H’ were tendered and relied upon by the Appellants at the trial Court in support of their claim and these documents speak for themselves. That, in view of the conflicting and contradiction in the evidence of the Appellants, the learned trial Judge was right to reject the evidence of the Appellants and to hold that Joseph Abiola James had nothing to sell to the Appellants. He relied on Fasoro V. Beyioku (1988) 2 NWLR (pt. 76) 263, to the effect that where a plaintiff’s vendor’s title and capacity to sell the disputed land are both challenged by the defendant, the onus is on the plaintiff to establish that title, otherwise, the principle of nemodat quid non habet will apply. The Court was urged to so hold in this case and resolve issue two in favour of the Respondent.

RESOLUTION OF ISSUE TWO
Exhibit ‘H’ is the letter of administration (without will) of real and personal properties of Joseph Abiola James the father of PW2, while Exhibit ‘B’ is a photocopy of conveyance between Dauda Balogun and J. A. James. As correctly stated by the Respondent’s counsel, both documents were tendered and relied upon in proof of the Appellants/plaintiff’s claim of title to the land they were claiming before the trial Court.

The evidence of PW2 (whose name was stated as Abimbola Olugbemiga James as per Exhibit ‘D’) is contained at pages 21 to 22 of the record. He stated that his father Joseph Abiola James died on the 6th January, 1977 and that his father bought the land the plaintiff/Appellants claimed from “the Balogun family” and that Exhibit ‘B’ is the conveyance agreement in that respect. After his father’s death he wrote a letter (Exhibit ‘E’) to the plaintiff requesting him (plaintiff/Appellants) to complete payment for the land, and the plaintiff paid him N4000 as the balance owed. He issued the plaintiff a receipt (Exhibit ‘F’) dated 8/7/77, which he signed in the name of his deceased father, J. A. James and not in his name. Note that the receipt was issued for the sum of N10,000 as the cost price of the land the plaintiff was claiming by the PW2 seven months after the death of J. A. James, that is, Joseph Abiola James, the name of PW2’s late father. By Exhibit ‘D’, the initials of PW2 are not J. A., but A. O. James (Abiola Olugbemiga James). Why then did PW2 issue and signed the receipt of payment for the land in his father’s name who was already deceased seven months earlier.

In his judgment, the trial Judge considered and analysed these Appellants’ two documents, that is, Exhibits ‘F’ and ‘H’. With regards to Exhibit ‘H’, His Lordship found and held at page 69 of the record of appeal that:
“It is also interesting to note that the plaintiff further stated under cross-examination that the land in dispute did not appear in the Letters of Administration of J. A. James – Exhibit ‘H’. The “Letters of Administration” is in respect of the real and personal properties of Joseph Abiola James and it enumerates the properties. Therefore I am of the opinion that if the land in dispute is not included in Exhibit ‘H’, I am of the opinion that the Plaintiff cannot pay or buy from either the late J. A. James or the 2nd P.W. what they did not have Nemodat qui non habet.”

The argument of the Appellants against the above finding of the trial Court was that since the late J. A. James had already sold the land to the Appellants, same land would not appear as part of his real property in the letters of administration of his estate. This argument has no leg to stand in view of the undisputed fact that Exhibit ‘F’ was written after the death of the supposed conveyer of land. It means there was no conveyance by the late J. A. James before his death, and if such land existed as at the time of J. A. James’ death it must be included in the letters of administration of his estate. There was no evidence explaining the absence of the land claimed by the Appellants in the letter of administration of the late J. A. James by PW2. It is therefore reasonable for the learned trial Judge to draw the inference that it did not exist and as such, the PW2 cannot transfer what he did not have. In view of the evidence before the trial Court, I am in agreement with the trial Judge’s findings quoted above. Consequently, issue two is resolved against the Appellants.

ISSUE THREE
Issue three formulated from ground 5 of appeal is whether the identity of the land contested between the parties was in dispute. The Appellants’ argument on this issue is contained at pages 14 to 19 of their briefs, mainly that in view of the pleadings and evidence, both documentary and oral, the identity of the land claimed by the Appellants was not in dispute. Our attention was particularly drawn to the survey plans, Exhibits ‘L’ and the plans attached to Exhibits ‘A’, and ‘B’, upon which it was argued, that regardless of which ever plan is referred to, the land in dispute was known to the parties and it is located at No. 126 Obafemi Awolowo Way, Ikeja.

The Respondent’s learned counsel’ argument on issue three is contained in pages 15 to 18 of his brief. He submitted that in a claim for declaration of title to land, the plaintiff has the duty to describe the land in dispute with such reasonable degree of certainty so that its identity is certain and not in doubt. That, the issue of the proof of identity of land in disputed is a sine quo non to the establishment of title to land, and that the burden never shifts to the defendant. That, where the trial Court is in doubt as to the identity of the land being claimed, the claim will fail and be dismissed. SeeBaruwa V. Ogundola (1938) 4 WACA 159, Awote v. Owodunni (1987) 2 NWLR (pt. 57) 367,Ayinla V. Adisa (1992) 7 NWLR (pt. 255) 566 and Agbonifo V. Aiweroba (1988) 1 NWLR (pt. 70) 325 among others in support of the argument.

It was further submitted that the Appellants misunderstood this position of the law in their argument and that the learned trial Judge’s finding at page 78 of the record to the effect that the Appellants root of title conveys no identifiable land was correct and we are urged to agree and resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUE 3
The identity of the land in dispute means the portion, the area covered, its size, the features by which it is described and known by both parties. Indeed it appeals to common sense and logic that the land in dispute must be clearly identified by the claimant of title to same. The purpose of this principle of law was explained by the Supreme Court in Offodile V. Offodile (2019) 16 NWLR (pt.1698) 189 at 203 paragraph A-B, quoting and following its earlier decision in Elias V. Omo-Bare (1982) 5 SC 25 (per Coker JSC) that:
“The purpose is to enable the parties and any other person claiming (through them) to know precisely the area of land to which the judgment or order relates for the purpose of enforcement of the decision of the Court. It is also important for the purpose of obviating possibility of future litigation of that particular area of land as between the parties and their privies.”
See also Ayanwale V. Odusami(2011) 12 SCNJ 362.
In this case, the Appellants pleaded in paragraph 1 of the amended statement of claim (page 3 of the record)that:
“The land in dispute is along Obafemi Awolowo Way, Ikeja (formally known as Isheri Road, Ikeja, Lagos State) and has now been numbered as No. 126, Obafemi Awolowo Way, Balogun Bus Stop, Ikeja Lagos.”
The Respondent joined issue with the Appellants in paragraphs 4 to 6 of his further amended statement of defence and counter claim. (See page 7 of the record of appeal) where he stated that:
3.“The defendant is the holder of a certificate of occupancy No. 61/61/1991W in respect of the land and premises known as 126, Obafemi Awolowo Way, Ikeja (formally 87 Isheri Road) and was at all times material to this action the occupier of the property at 126 Obafemi Awolowo Way, Ikeja, Lagos.

4. The piece of land and premises situate at 126, Obafemi Awolowo Way Ikeja is the subject matter of land survey plan NO KARA/LA/029/90 of the 11th September 1990 prepared by Adeniran Bioku Licensed Surveyor of 116, Abeokuta Way Iyana Ipaja Lagos State where the property was properly described and delineated. Survey Plan No. KARA/LA/O29/90 was prepared form the original Survey plan NO. JF/459 prepared by J. Ososami Licensed Surveyor on the 6th October 1975 for one ENEYIRAMOH MUSA ATTAH.
5. The defendant’s predecessor in title is one Musa ENIYIRAMOH MUST ATTAH from whom the defendant bought the piece of land situate at 126 Obafemi Awolowo Way, Ikeja by purchase receipt dated 3rd December, 1977 for the sum of N50, 000. 00 (Fifty Thousand Naira only).”
From the above averments, the identity of the disputed land was not in issue at all because both parties properly identified it.

The complaint of the Appellants under this issue is in relation to the holding of the learned trial Judge at pages 68 to 69 of the record of appeal where, while considering the evidence led by the Appellants regarding whether or not there was astructure/building on the disputed land. The issue in contention being resolved by the trial Court related to the evidence of PW1’s (Dauda Balogun) Exhibit ‘F’ vis-a-vis the Respondent’s Exhibits S1 to S21. Exhibit ‘F’ is the receipt issued by PW2 to the Appellants for the sum of N10, 000 purportedly as payment for the disputed land, while Exhibits S1 to S21 are photographs of a demolished bungalow on the disputed land. After considering these pieces of documentary evidence and the oral evidence of the witnesses, the learned trial Judge found that the evidence of the Appellant was contradictory regarding whether there was any building on the disputed land or not, and he concluded that:
“The plaintiff further states that the land had a structure built by Chief Lawani Balogun. But Exhibit ‘F’ i.e. the plaintiff’s receipt for N10,000. 00 does not give the slightest indication that there was a structure on it. I am of the opinion that if there was structure on it – a structure of such size of the bungalow in Exhibits ‘S1 to S21, Exhibit ‘F’ ought to have said so. Exhibit ‘F’ speaks for itself. It simply says “Plot of land measuring “50 X 100” along Isheri Road.” Also this piece of evidence that the land has a structure built on it by Chief Lawani Balogun is contradictory to that of 2nd P.W. who said in his evidence that Attah built the structure about thirty years ago. Who does the plaintiff wants the Court to believe…. I am of the opinion that the plaintiff is either not certain about the land in dispute or what he paid for or he is out to deceive this Honourable Court…”

It is therefore crystal clear that the learned trial Judge did not make the identity of the land an issue in his judgment as erroneously argued by the Appellants. His Lordship’s finding of fact above was based on the evidence led by the parties, which led him to hold and conclude that the evidence of the Appellant was contradictory; consequent upon which it was disbelieved. This issue is resolved against the Appellants.

In conclusion, having resolved all the three issues against the Appellants, I find no merit in this appeal and it is hereby dismissed by me. The judgment of the High Court of Lagos State delivered on the 23rd March, 2001 in respect of Suit NO: ID/1051/91 is hereby affirmed by me. The cost of N50,000 (Fifty Thousand Naira) only is awarded to the Respondent.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in advance the succinct the leading judgment delivered by my learned brother: BALKISU BELLO ALIYU, JCA. I endorse in toto, the reasoning and conclusion in it. I too dismiss the appeal. I abide by the consequential orders decreed in it.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had a preview of the leading judgment just delivered by my learned brother, BALKISU BELLO ALIYU, JCA in which he found the appeal as lacking in merit and dismissed it.

I agree with the analysis and resolution of the issues raised in the appeal which essentially border on the evaluation of evidence led in the lower Court, and which the Appellants have not been able to show that the findings upon which the judgment was entered against the Appellants were perverse.

I too will dismiss the appeal and I abide with the consequential orders made as to costs.
Appeal is dismissed.

Appearances:

BABATUNDE KASUNMU ESQ For Appellant(s)

A. ADASANYA ESQ., with him, BLESSING O. JAIYOLA ESQ For Respondent(s)