REUBEN OGBONNAYA v. HYGINUS ILOKA
(2012)LCN/5696(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of December, 2012
CA/L/758/06
RATIO
EVIDENCE: BURDEN OF PROOF IN A CLAIM FOR TITLE TO LAND
IN ELIAS V. DISU (1962) ALL NWLR PT.1. 215 @ 229, was held that in a claim for title to land, the plaintiff has the burden of proof to establish his claim. PER RITA NOSAKHARE PEMU, J.C.A.
PLEADINGS: EFFECT OF A MERE AVERMENT IN PLEADINGS
Pursuant to Section 16 of the Court of Appeal Act, in a claim for title to land, the Plaintiff must file pleadings and lead credible oral evidence in support of his claim. Decidedly a mere averment in a pleading proves nothing at all, if it is not supported by evidence unless it is admitted by the opposite side – ADEPONLE v. SAIDI (1956) 1 FSC 79 @ 80. PER RITA NOSAKHARE PEMU, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND
The law is elementary, by the authority of IDUNDUN V. OKUMAGBA (1976) VOL. 10. NSCC. 445, and a plethora of authorities, that there are five ways of proving ownership to land.
By way of emphasis, they are:
- By traditional evidence
- By the production of documents of title duly authenticated and executed
- By acts of ownership of persons claiming land such as leasing, renting etc. which acts must extend over a sufficient length of time, and by numerous and positive enough to warrant the inference of ownership.
- By acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece of land.
- Proof of possession of connected or adjacent land in circumstances rending it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See LAWSON V. AJIBULU 1997 6 NWLR PT.507, 19. PER RITA NOSAKHARE PEMU, J.C.A.
EVIDENCE: WHAT EVALUATION OF EVIDENCE ENTAILS
evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – see Oyekola v. Ajibade (2004) 17 NWLR (pt. 902) 356 & idakwo v. Nigerian Army (2004) 2 NWLR (pt.857) 249. PER AMINA A. AUGIE, J.C.A.
JUSTICES
AMINAT ADAMU AUGIE Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
REUBEN OGBONNAYA Appellant(s)
AND
HYGINUS ILOKA Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of Honourable Justice O. A. Williams (Mrs.) delivered on the 6th day of August 2006, sitting at the High Court of Justice, Lagos State, Ikeja.
In the Judgment, the learned trial Judge dismissed the Counter-claim and declared the Claimant (Plaintiff in the Court below) the owner of the land known as No. 170 Old Ojo Road, Amuwo Odofin, Lagos. He awarded the plaintiff (Respondent) damages for trespass and injunction.
By Writ of Summons dated 15th March 1995 and further amended Statement of Claim (in Paragraph 28 thereof) the plaintiff (Respondent in this present appeal) claims against the Defendant (Appellant in this present appeal) the following:
7. ” A declaration of title to the piece of land known as No.170 Old Ojo Road, Amuwo Odofin, Lagos in favour of the plaintiff and that the plaintiff is the person entitled to the issue of a Certificate of Occupancy in respect of the piece of land.
2. A Perpetual Injunction to restrain the Defendant, whether by himself, his servant or agents or otherwise whosoever, from entering or using the said parcel of land.
3. Damages of N27,000.00 (Twenty seven thousand naira) being the total cost of the damaged building and converted materials by the Defendant belonging to the plaintiff.
4. N50,000.00 general damages for trespass by the defendant, suffered on the plaintiff.
5. An order that the defendant renders a detailed written account of all the rent and monies collected from tenants on the said piece of land from January 1990 till judgment is given, and to the plaintiff.”
Pages 1- 2 and pages 86 -90 of the Record of Appeal.
There is a defence to Counter-Claim filed on the 1st of September 1997 – Page 52 of the Record of Appeal.
The Defendant (Appellant) counter-claimant in an amended statement of Defence and Counter Claim filed on the 23rd of October 1996, sought the following:
(i) A declaration that the regularization letter dated 12th of June 1997, written from the Federal Ministry of Works and Housing to the Defendant was validly obtained.
(ii) N100,000.00 (One Hundred Thousand Naira) being damages for trespass to the said land as the plaintiff have consistently been entering and taking people to the land at 170 or 360 Old Ojo Road, Satelite Town, Lagos to the embarrassment of the Defendant and tenants occupying the premises.
(iii) An order of perpetual injunction restraining the Plaintiff, its servants, agents and/or privies from committing any further acts of trespass on the Defendant’s land.
Pages 42 -45 of the Record of Appeal.
SYNOPSIS OF FACTS LEADING TO THIS APPEAL
On the 25th of April, 1974, the Respondent (Plaintiff in the Court below) leased a piece of land from the Kuje Amuwo and lmore family of Amuwo Odofin, Lagos.
He was issued with a receipt, and in due course, the family executed a Deed of Lease in favour of the Respondent which was duly registered as No. 31. Page 31 in volume 1805 of the Land Registry, Lagos.
The Respondent in addition, also commissioned a Surveyor in 1977, one Mr. Ademola Ashipa, who surveyed the land and produced a survey plan. He obtained approval for his building plan from the Lagos State Government. In 1978, he cleared the land with a caterpillar and erected a boys quarters there on. The land was later known as No.170 Old Ojo Road, and subsequently renumbered No. 360 Old Ojo Road.
Suffice to say that the land was described as Oluti Kuje Amuwo, which was hitherto virgin land with no demarcation and numbers.
The Appellant is alleged to have entered the land, while Respondent was ill, destroyed the boys’ quarters erected by the Respondent, and put in place a block of shops, and some structures on the land which he let out to tenants.
When the Respondent recovered, he filed this suit, the subject matter of this appeal, in 1995.
It is the Appellants claim that he bought the land in dispute, from the Kuje Amuwo and Imore family of Amuwo Odofin Lagos, in January 1974. He said he was issued a receipt for purchase of freehold land -Exhibit D1; a receipt for lease of the same plot of land described as being at Oluti Kuje Amuwo, Lagos. He said that in 1981, the family from whom he leased the land gave him a survey plan Exhibit D4, which the family caused to be prepared.
The Claimant testified in the course of trial as PW1, and deposed to facts. PW2, licensed surveyor also deposed to facts.
On the part of the Respondent, he fielded DW2 and DW3 respectively as witnesses.
At the close of the case, the learned trial Judge found for the claimant and dismissed the counter-claim in its entirety.
The Appellant (who was counter-claimant in the court below) is dissatisfied with the decision of the lower Court. Pursuant to the Practice Direction of this Honourable court, the Appellant has appealed this decision by filing a Notice of Appeal on the 18th of April 2005 with eight (8) Grounds of Appeal – pages 296a – 296d of the Record of Appeal.
The Appellant filed his brief of argument on the 13th of March 2008 but same was deemed filed and served on the 9th of February 2010.
The Respondent filed an amended brief of argument on the 15th of December 2011.
Pursuant to an application for enlargement of time, to file the Appellants Reply Brief of Argument out of time filed on the 4th of February 2012, same was granted and deemed filed and served on the 29th of October 2012. Learned counsel for the respective parties adopted their briefs of argument on the 29th October, 2012.
The Appellant in his brief of argument proffered and distilled two issues for determination.
They are:
1) Whether having regards to the pleadings of the parties and the evidence adduced at the trial Court, the Appellant did not prove his case.
2) Whether the learned trial judge was right in not considering that the Appellant was in possession of the land in dispute.
The Respondent had in his amended Respondents’ brief of argument proffered and distilled two issues for determination.
They are:
i) Whether the learned trial judge was right in holding that the Respondent proved ownership of the land in dispute and was entitled to declaration of title to the said land in his favour, while the Defendant did not prove his counter-claim.
ii) Whether the mere fact that the Appellant was in physical occupation of the land in dispute, defeated the Respondent’s claim of ownership over the said land.
A cursory look at the issues for determination of both parties, it seems to me that the gravamen of the matter is whether the learned trial Judge was right in declaring the Respondent owner of the land in dispute, and entitled to declaration of title to the land in his favour, and whether the Defendant did not prove his Counter-claim.
In considering the above, it was pertinent for the learned Judge to evaluate the pleadings of the parties, and the supporting evidence adduced at the trial Court, and to come to a conclusion after doing same.
Furthermore, there is the issue whether possession of the land in dispute is what determines ownership of land.
The Appellant had filed a reply brief on the 11th of June 2010 but was deemed filed on the 9th of December, 2010.
On Issue No 1 in the Appellant’s brief, he contends that the learned trial Judge was wrong in giving Judgment to the Respondent.
The claim of the claimant at the lower court borders on declaration of title to land.
IN ELIAS V. DISU (1962) ALL NWLR PT.1. 215 @ 229, was held that in a claim for title to land, the plaintiff has the burden of proof to establish his claim.
Pursuant to Section 16 of the Court of Appeal Act, in a claim for title to land, the Plaintiff must file pleadings and lead credible oral evidence in support of his claim. Decidedly a mere averment in a pleading proves nothing at all, if it is not supported by evidence unless it is admitted by the opposite side – ADEPONLE v. SAIDI (1956) 1 FSC 79 @ 80.
The law is elementary, by the authority of IDUNDUN V. OKUMAGBA (1976) VOL. 10. NSCC. 445, and a plethora of authorities, that there are five ways of proving ownership to land.
By way of emphasis, they are:
1. By traditional evidence
2. By the production of documents of title duly authenticated and executed
3. By acts of ownership of persons claiming land such as leasing, renting etc. which acts must extend over a sufficient length of time, and by numerous and positive enough to warrant the inference of ownership.
4. By acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece of land.
5. Proof of possession of connected or adjacent land in circumstances rending it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See LAWSON V. AJIBULU 1997 6 NWLR PT.507, 19.
It seems to me, that the Claimant (Respondent in this appeal) gave evidence in the lower Court of how he acquired the said piece of land from the Kuje Amuwo and Imore family Council in April 1974. He tendered Exhibit P1 (receipt issued him by the said family). He also tendered exhibit P2, – which is certified true copy of the registered deed of lease, executed in his favour by the said family. He it was who tendered Exhibit P3, which is the approved building plan in respect of the building he wanted to put on the land. He tendered Exhibit P4 – survey plan in respect of the land. These documents establish that he leased the land from the lawful owner. Pages 142-154 of the Record of Appeal.
Apparently he has satisfied the said ingredients in IDUNDUN v. OKUMAGBA.
Apart from these documents, the Respondent had led evidence to show that he paid for the land, was issued receipt, and that a deed of lease was executed in his favour which was duly registered. That he entered into the land, and carried out acts of possession on the land, until the Appellant came into it –
pages 142 – 153 of the Record of Appeal.
The learned trial Judge at Page 13 of his judgment (pg. 291 of the Record of Appeal), agree with the claimant that he has made out a prima facie case as to ownership of the land in dispute.
He had this to say:
“I agree with that the claimant has made out a prima facie case with the production of his title document. Exhibit p2 is a duly registered lease which has been acknowledged by D.W.2 one of its signatories. He has proved his ownership of the land in dispute by the second method provided in Idundun vs. Okumagba. I believe his testimony that he was put in possession and his acts of ownership included putting up a structure and building materials on the land”
At page 14 of his Judgment (Pg.292 of the Record of Appeal) he further observed-
“As I found above the claimant has made out a prima facie case. The onus now fails on the Defendant to dislodge that case. The Defendant has admitted that he went on the land erected structures on the land because of this belief and the assurance of the family that the land is his. Having found that the land is the claimant’s the activity of the defendant on the land amounts to trespass unless he is able to justify his presence on the land”
He went on at page 15 of his judgment (page 293 of the Record of Appeal)
“The issue of which sale is first in time does not arise because there is no proof that the family sold the same land to both of the parties. The Defendant has not shown any defect in the claimant’s title. I therefore find and hold that the claimant has proved his ownership and is entitled to his claim for declaration of title and injunction”
At page 155 of the Record of Appeal, are some portions of the evidence of PW2 – one Ademola Ashipa (Licenced Surveyor – who surveyed Claimant’s land in 1974). He had this to say inter-alia.
“…when we were doing the survey there was no disturbance of any kind on the land. Nobody challenged us. The fact that I was not challenged while doing the survey commenced me that there was no competing interests as at that time. There is no other way I can know whether or not there is a competing interest.
I will not believe if I am now told that there was a competing interest on the land.”
It is on record that DW1, (the Appellant in this Appeal) also tendered a purchase receipt at the trial. Exhibit D1, pages 159 – 160 of the Record of Appeal.
Paragraphs 21, 22, 23, 24, 25, 26 and 27 of the Amended further Amended Statement of Claim are instructive. I shall reproduce same verbatim.
Paragraph 21 “Sometime in 1990, before the said suit was slated for hearing, the Defendant again came up with a proposal for an out-of-court settlement of this case. This time the Kuje Amuwo and Imore Families intervened and invited the Plaintff and the Defendant to a peace meeting. The plaintiff, eager to regain his land and avoid prolonged litigation, again acceded to the proposal.”
Paragraph 22 “However, the Defendant employed the same trick and frustrated the said our-of court settlement. During this period, the plaintiff’s business collapsed and he began to have series of misfortunes which adversely affected his health. He was therefore not in the position to continue with the case or take any further action in respect of the said land.”
Paragraph 23 “During this period, the Defendant went into the land and damaged the structures earlier constructed by the plaintiff on the land and even converted all the blocks and iron rods belonging to the Plaintiff, to his own personal use. The Defendant constructed structures and a block of stores on the said land.
Paragraph 24 “The Defendant let out the said stores and other structures, as well as the whole premises to tenants who pay rent to him regularly.”
Paragraph 25 “The rent accruing from the premises, which rightfully belongs to the plaintiff have and are still being wrongfully appropriated by the Defendant for his personal use.”
Paragraph 26 “The Defendant wrongfully claims that he has a right to own the land and has refused, despite several peaceful attempts by the plaintiff to regain the some.”
Paragraph 27 “By reason of the matters aforesaid, the Plaintiff has suffered serious loss and severe damage.”
In paragraph 14 of the further Amended statement of Defence and counter-claim, the Appellant (Defendant in the court below), admitted erecting structures on the land and collecting rents from the stores.
At page 11 of the Judgment (page 289 of the Record of Appeal) the learned trial Judge who had the opportunity of observing PW2 had this to say –
“I do not agree with the defence counsel that PW2 is not a witness of truth. He impressed me as a forthright and truthful witness. I have no problem with his testimony that he revisited the land he surveyed. He is an expert and it is trite that he can identify land by beacons or whatever mode of demarcation he chose.
On the contrary the testimonies of the witnesses presented by the defendant did not support his case. The testimony of DW2 sharply contradicts that of the defendant as regards his receipt and survey plan. It is clear to me that this witness was only brought to Court to say that the land in dispute is the one the family sold to the defendant. However his testimony did not stand the test of cross-examination. He is not a witness of truth. Only the admissions extracted from him under cross-examination have proved useful so I find his testimony about the identity of the land sold to the defendant unacceptable. DW3, an impartial witness told the truth as to the disparity in the two survey plans and admitted that he did not visit the land in dispute so though he was truthful his testimony carries no weight at all.”
At page 12 of his judgment page 290 of the Record of Appeal, he observed still.
“Exhibit P2 relates the land leased therein to Exhibit P4 which is contained in it and the testimony of PW2 confirms that the land described in the said survey plan is the one now known as Plot 360 Old Ojo Road. I accept this testimony as true and find and hold that the claimant has stated the exact boundaries of the land he claims which is delineated in Exhibits P2 and P4. I also find and hold that the said land described in the survey plan Exhibit P4 is the land in dispute in this suit known as plot 360 Old Ojo Rood.”
From above, it is apparent that from the pleadings and evidence before the trial court, the Respondent (claimant in the lower court) proved his case of trespass and other sundry reliefs against the Appellant, who did not prove his case as stated in his Counter-claim. This issue is resolved in favour of the Respondent and against the Appellant.
Issue No 2 can safely be said to be predicated on Issue No 1. I am of the view that the learned trial court gave a considered Judgment in respect of this matter, as it looked at the parties respective cases, and put same on an imaginary scale, in order to determine which of the competing rights deserve favour.
The learned trial Judge rightly (in my view) came to the conclusion which he did, after evaluating the evidence before him, both oral and documentary. That decision cannot be faulted, as the Respondent (claimant in the court below) was able to establish his case on a prepondence of evidence and as required by law.
This court cannot therefore disturb that finding.
Issue No 2 is therefore resolved in favour of the Respondent and against the Appellant.
The Appeal in consequence fails, and is one that deserves to be dismissed in its entirety, while the Judgment of the lower court delivered on the 6th day of August, 2006, hereby affirmed with N30,000.00 costs in favour of the Respondent.
AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Pemu, JCA and I agree with his reasoning and conclusion. He has dealt with all the issues, and I have nothing useful to add except to say that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – see Oyekola v. Ajibade (2004) 17 NWLR (pt. 902) 356 & idakwo v. Nigerian Army (2004) 2 NWLR (pt.857) 249. In this case, the lower court clearly enumerated its reasons for preferring the evidence of the Respondent, which cannot be faulted in any way by this court.
In the circumstances, I also dismiss the appeal. I abide by the consequential orders in the lead Judgment, including the order as to costs.
SIDI DAUDA BAGE, J.C.A.: I read in draft the lead judgment of judgment of my learned brother Pemu, J.C.A. I am in complete agreement with. The appeal is unmeritorious, and also dismissed by me.
I abide by the consequential order contained in the lead judgment.
Appearances
Emeka Okpoko Esq., with him are Chinedu Ezema Esq. and K. C. Okechukwu Esq.For Appellant
AND
R. Nwokike Esq.For Respondent
