SENIOR EVANGELIST SAMUEL O. A. OSHODI v. MR. TAJUDEEN BALOGUN & ORS
(2016)LCN/8376(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/L/1097m/2011
RATIO
EVIDENCE: BURDEN OF PROOF; WHO HAS THE BURDEN OF PROOF
Therefore from the evidence on record the Respondents showed that they had been in possession of the land since 1929, title got burnt along with the part of the property. In 1981, following the Building Agreement, the Appellant pulled down the 2 story building.
The evidence is unshaken, uncontradicted and uncontroverted. Thus, the burden shifted to the Appellant who asserted the contrary. Section 133(1) of the Evidence Act 2011 stated
“In Civil cases, the burden of first proving existence or non-existence of a fact lies on the pending agreement whom the judgment of the court would be given if no evidence were produced on either side, regard being had t any presumption that may arise on the pleadings”. See OBIAKU v EKESICHI [2003] FWLR (PT 166) 661. PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA
LAND LAW: TITLE OF LAND; WHETHER A CERTIFICATE OF OCCUPANCY AUTHOMATICALLY CONFER TITLE
A production of a Certificate of Occupancy does not automatically confer title on the person as it is merely a prima facie evidence which will give way to a better title. See ILONA v IDAKWO (2003) 11 NWLR (Pt 830) 53; IBRAHIM v MOHAMMED [2003] 6 NWLR (PT 817) 615. PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA
LAND LAW: TITLE TO LAND; THE IMPLICATION OF HOLDING A CERTIFICATE OF OCCUPANCY AND WHEN IT CAN BE REVOKED
Where a competent authority issues a Certificate of Occupancy it raises the presumption that the holder is the owner in exclusive possession of the land to which the Certificate relates. It also raises the presumption that all the time it was issued, there was not in existence a customary owner title has not been revoked. However these presumptions are rebuttable. Where it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy the court can revoke. See OKPALUGA vs ADESOYE (1996) 10 NWLR (PT.476) 77; AUTA v. IBE (2003) 13 NWLR (PT.837) 247; DAKAT Vs. DASHE (1977) 12 (PT.531) 46.” PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
SENIOR EVANGELIST SAMUEL O. A. OSHODI Appellant(s)
AND
1. MR. TAJUDEEN BALOGUN
2. MR. TUNDE BALOGUN
3. MR. SIKIRU BALOGUN
4. MR. GANI BALOGUN
5. MADAM SIDIKAT BALOGUN
(For themselves and on behalf of Jimoh Balogun Family) Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA (Delivering the Leading Judgment):
This is an appeal is against the judgment of Dada J. of the Lagos High Court delivered on 2nd June 2011.
The suit was commenced by a writ of Summons and Amended Statement of Claim dated 18/4/2006 against the Defendants/Respondents claiming the following reliefs:
1. A DECLARATION that the Memorandum of Building/Development Agreement dated 20th day of May, 1981 between the Defendants’ Family and the Claimant is illegal, null and void ab initio and of no effect whatsoever, having been entered into based on the fraudulent misrepresentation of facts by 1st 5th Defendants family members to the claimant and by misrepresentation.
2. AN ORDER SETTING ASIDE the said Memorandum of Building/Development Agreement dated 20th day of May, 1981 purportedly entered into by the Defendants’ Family and the claimant.
3. N5,000.000.00 (Five Million Naira Only) being general damages suffered by the Claimant as a result of the purported Building/Development Agreement.
4. A DECLARATION that the Claimant is the bonafide owner of the property situate at 15, Ajibade Street, Yaba, Lagos State covered by a Certificate of Occupancy No.31 at page 31 in Vol.2006A.”
The Respondents also counter claimed for the following reliefs:
1. A DECLARATION that the Building/Development Agreement dated 20th May 1981 is/was never vitiated by any fraudulent act nor void but wholly valid subsisting and binding on the parties herein.
2. A DECLARATION that the Defendants better surviving children/relatives of the deceased, are entitled to the ownership/reversionary interest in the property (15, Ajibode Street, Surulere Lagos State) after the expiration of the Building agreement dated 20th may 1981 in May, 2006.
3. AN ORDER setting aside the purported certificate of occupancy purportedly issued to the claimant by the Lagos State Government.
4. AN ORDER compelling the claimant herein to return full possession of the property (with all appurtenances) to the Defendants/Counter claims forthwith come May 2006 and to pay the Defendants/counterclaimants any sum to be calculated by the court for holding over of the property beyond May, 2006.
5. AN ORDER compelling the claimant/Defendants to pay the sum of N5,000,000.00 (Five Million Naira only) damages to the Counterclaimants at the end of this suit”.
The brief fact of the case according to the Appellant is that he was invited to develop the Respondents’ father and brothers (Grantors) land under premise that the land belonged to them. He developed same under a Memorandum of Building Agreement dated 29/5/81. The Appellant expended money on the land during which he was disturbed by the Oloto family and the Lagos State Government with threats of demolition and challenged the Grantors’ Ownership of the land. He subsequently regularized his position with the Oloto Family and Lagos State Government and thereafter obtained a certificate of occupancy after becoming aware that the grantors had no title to pass on.
At the end of the trial, Judge awarded judgment in favour of Respondents as owners of the land in dispute as per their counter claim.
The Appellant being dissatisfied with the judgment filed a notice of Appeal dated 11th August, 2011 on five grounds of Appeal. In compliance with the Rules of court, Chief Bolaji Ayorinde SAN, Adenrele Adegborioye Esq., Osinachi Obasi Esq., Mariam Akinbade (Miss) of B. Ayorinde Chamber settled the Appellant’s Brief dated and filed 19th March, 2013 but deemed 20th November, 2013. Appellant also filed a Reply Brief dated 10th February, 2014 and filed 11th February, 2014 but deemed 25th March, 2015. Three issues were nominated in the Appellant’s thus:
1. Whether the Learned Trial Judge was right to have given Judgment in respect of the counter claim before the lower court to the effect that the Respondents are the owners of the property at No 15 Ajibade Street Surulere Lagos.
2. Whether the Learned Trail Judge was right in awarding Judgment to the Respondents on the competing claims on the parties.
3. Whether the Learned Trial Judge properly valuated the evidence before her arriving at her judgment delivered in this suit.
The Respondents’ brief of argument is dated 18th December 2013 and filed 19th December 2013. Same was settled by Olusegun Ogunbode, Nofiu Malomo, Adedayo Olaiya(Mrs.) of George-Taylor Ashiru & Co. Two (2) issues were formulated for determination as follows:
1. Whether the learned trial Judge erred, in upholding the title and reversionary interest of the Respondents to the property in dispute
2. Whether the decision of the lower court was on the weakness of the Appellant’s case and not on the strength of the Respondents’ counter claim”
ISSUE 1
Appellant contended that the Respondent did not give any evidence in proof their claim for title to the land in dispute neither did they trace their root of title to the property. Since the allegation in the counter claim was denied. He relied on AMUKAM v AMUKAM [2008] 5 NWLR (PT 1081) 455 at 473. He referred to the five ways of proving title and relied on ATANDA & ORS v AJANI & ORS (1989) 2 NSCC 511, (1989) 3 NWLR (PT 11) 511 AT 515; IDUNDUN v OKUMAGBA [1976] 9 – 10 SC 227; ISITOR v FAKOREDE (2008) NWLR (PT 1069) 602 at 619; OGUNRO v ARONOLO (1998) 8 NWLR (PT 552) at 78.
He referred to paragraph 2 of Statement of Defence and Counter Claim at page 340 of the record to submit that the way and method of proving title to land relied upon by the Respondents was that the property in dispute had from time immemorial being family property of the Defendants’. He referred to UKAEGBU v UWOLOLO (2009) 3 NWLR (PT.127) 194 t 220 – 221 to the effect that the title however derived must be pleaded and prepared by evidence and it’s the duty of the plaintiffs to do so. He also relied on ATUANTA v ONYEJEKWE (1975) 9 NSCC 89 AT 92.
Appellant counsel contended that a plaintiff in a declaration of title or interest in a land must succeed on the strength of his own case and not the weakness of the defence. He referred to MOGAJI v ODOFIN (1978) 4 SC 91; ATANDA v AJANI (1989) 3 NWLR (PT.111) PAGE 511 before submitting that the trial judge is in breach of the above principle. He also cited MEKA v ANIAFULU [2002] 13 NWLR (PT 943) at 668; USMAN v SARKE (1999) 1 NWLR [PT 587] 466 at 485 to argue that a counter claim is an independent action and a defendants’ counter claim for title has no less burden than the plaintiff to prove this title. He further cited KODINLINYE v ODU (1935) 2 WACA 336; ELUFISOYE v ALABETUTU (1968) NMLR 298; GANKON v UGOCHUKWU CHEMICAL IND. LTD (1993) 6 NWLR [PT. 297] 55, ECHI v NNAMANI [2000] 8 NWLR (PT 677) 1 at 12; ALIYU v ADEWUYI [1996] 4 NWLR [PT. 442] 284 at 291; ANODE v MMEKA (2008) 10 NWLR (PT 1094) 20; KAURA v UBA PLC (2005) NWLR (PT.926) 24.
Counsel further contended that the memorandum of building agreement is not an evidence of title to the land in dispute, and cannot be used to prove title. Appellants submitted that they were falsely induced to enter into Agreement, as the Respondents family has no power to lease the land at all but the Oloto family. Finally he concluded that the trial judge ought not to have awarded judgment on the land in dispute in favour of the Respondents.
The Respondents’ counsel in the Respondents’ brief agreed that the proof of land title is by 5 means as contended by the Appellant. Counsel relied on IDUNDUN v OKUMAGBA (supra); NWABUOKU v ONWORDI (2006) 5 SC (PT 111) 103 at 109 and submitted that in line with the decision in OKUMAGBA (supra), a person need not prove all of the five ways to succeed, as only one would be sufficient.
He submitted that Respondent gave cogent evidence of title and possession since 1929 and had 2 buildings on the land and that they were born and brought up on the land and this evidence was neither disturbed by any rival claimant nor challenged. He relied on DUROSARO v AYORINDE (2005) 3 – 4 SC 14. Respondent referred to case of ownership by initiating Appellant in 1981 to redevelop the building on the land following a fire incident that destroyed the building and that Appellant had satisfied the required acts of ownership inter true ownership as stipulated in Okumagba’s case.
He contended that the plank of Respondents’ counter claim is the reversionary interest from the lease granted the Appellant as embodied in the Memorandum of Building Agreement which is 20 years. He referred to Section 162 of Evidence Act 2011 which validates same as sufficient evidence. He relied on JOHNSON & ORS v LAWANSON & ORS (1971) 1 NSCC 58; AYINLA VS SIJUWOLA (1984) NSCC 301 and GANGARIYA v RTMCN (1992) 4 NWLR (PT 238) 763. Respondents’ counsel further contended that although the Appellant tendered receipt of repurchase of the disputed land from the Oloto family, he however failed to prove root of title of the Oloto family and that failure to do this is fatal. He cited OLOHUNDE v ADEYOJU (2000) 6 SC 118 at 148.
Respondents’ Counsel further contended that assuming but nor conceding that the land originally belonged to the Oloto family, ‘they are estopped from disputing the title of the defendant as per Section 151 of Evidence Act. Counsel cited ALADE v ALEMULOKE [1988] 1 NWLR (PT 696) 207; ILOABACHIE v ILOABACHIE (2008) 5 SC (PT 11) 149 at 159. Respondents’ Counsel further stated that Appellant only raised the issue of acquisition and lack of title at the tail end of the lease he was granted after he had enjoyed the property for 25 years but failed to surrender the property to the Respondents. Citing Section 138 (1) of the Evidence Act, counsel submitted that allegation of fraud must be proved beyond reasonable doubt. Counsel submitted that the Appellant is merely shopping for a means to justify his holding over to the property after effluxion of the 25 years lease. Counsel referred to Exhibit A9 to submit that there is a clear admission of fraud on the Appellant’s part to show his desperation to acquire the property and frustrate the reversion.
Respondents’ Counsel further relied on Section 152 of Evidence Act to contend that the claimant is estoppel from procuring a rival title against that of the Respondents. He relied on ONISIWO v GBAMGBOYE (1941) 7 WACA 69; DABIRI v GBAWMO (1961) ANLR 236; AKPUNONU v BEAKART OVERSEAS (2000) 7 SC (PT.1) 49.
In conclusion, he urged that the court resolve the issue in favour of the Defendants because they proved ownership by traditional evidence; by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership by acts of possession and enjoyment and by proof of possession of connected or adjacent land in circumstances rendering of probable that the owner of such connected or adjacent land would in additional be the owner of the land.
In his Reply brief, Appellant’s counsel contended on issue 1 of the Respondents and submitted that the proof of title and acts of long possession and ownership were not sufficient proof to title, having not been pleaded. He stated that reliance of act of possession of property was not sufficient. He cited OWOEYE v OYINLOLA [2012] 18 NWLR (PT 1332] 89; NURUAMA v EBUZOEME [2006] 9 NWLR [PT 984] 224; OMOTAYO v C.S.A. [2000] 16 NWLR (PT 1218) 1 AT 31; LAWAL & ORS v OLUFOWOBI & ORS [1996] 10 NWLR (PT.477) 177 at 188.
He contended that it’s only when a property has succeeded in establishing the root of title that he can rely on act of possession & ownership to prove title to land. Counsel cited AJIKANLE v YUSUF [2008] 2 NWLR 301 at 336 – 340; JIYA v AWUMI [2011] 4 NWLR (PT 1238) 449; ECHI v NNAMANI [200] 8 NWLR (PT 677) 1 at 12; AWUZUE v NKPARIAMA [2002] 1 NWLR (PT.747) 1 at 9 to 10. He contended finally that the Respondents have failed to discharge the burden of proof that the law reposes on them.
RESOLUTION
It is apparent from the review of the argument of counsel as well as the judgment of the lower court that both the Appellant on the one hand and the Respondents on the other hand lay claim as to the ownership of the said property. The extant issue basically questions the judgment of the lower court with respect to the holding of the lower court as per the counterclaim of the Respondents, which is basically predicated on the ownership/reversionary title of the Respondents in the said property.
From the Defence and counterclaim dated 23rd May 2006, the Respondents averred thus:
2) “The Defendants admits paragraph 3 of the statement of claim only to the extent that they originally owned the property situate and being at 15 Ajibade street but deny the claimant’s claim to any Government Acquisition of same at any time, infact the property in dispute had from time immemorial being the family property of the Defendants. The Defendants thereafter put the claimant to the proof of the acquisition by the Lagos State Government, any government as at 1940 or any year.
3) The Defendants wholly and entirely deny knowledge (apparent or constructive) of any Government Acquisition and could not have been guiding of any fraud. Furthermore the claimant is only varying the issue of fraud.
4) The Defendants further aver that the Building Agreement of 20th May 1989 between the parties is not vitiated by any fraud or misrepresentation and that same is valid and still binding on the parties and their successors in title. The Defendants will at the trial rely on the Building Agreement.
5) The Defendant’s in furtherance to paragraph 4 above aver that under the existing and binding Building Agreement the claimants expected to hand over the property in question to the defendants family by May this year (May 2006) an obligation the claimant is strenuously avoiding as the claimant had in fact collected rent from the tenants beyond May 2006 into the gear 2008 and 2010. The defendant will at the trial rely on some of the receipts at the trial.
6) The defendants admit paragraph 5 of the statement of claim only to the extent that their fatter swore to an affidavit of loss of title as a result of the fire incident which engulfed the defendant’s house sometimes in June 1981 but deny that the affidavit was made in 1987. The Defendant will at the trial rely on Evening times publication of May 8 1981 which published the fire incident. The Defendants insist that the contents of the said affidavit were true and correct, and there was no concealment as the fire incident completely burnt all the Defendants’ Deed of Title”
In the celebrated case of IDUNDUN v OKUMAGBA (1976) 9 – 10 SC 227 relied upon by both parties, the Supreme Court laid down 5 ways of proving title to be: (1) by traditional evidence; (2) by production of documents or title which are duly authenticated; (3) by various acts of ownership so numerous and positive and extending over a length of time to warrant the inference of ownership; (4) by act of long enjoyment & possession of the land, and; (5) by proof of possession of adjacent land in circumstances which it render probable that the owner of such adjacent land would, in addition be the owner of the disputed land.
In the instant suit, the counterclaimants had averred and also gave evidence on record to the effect that the property on the land in dispute which was owned by their father got burnt in 1981 and the claimant had approached them to rebuild the burnt property of the building and thereupon entered into a Building agreement with the Respondent’ father, hence Exhibit D7. DW1 – Tajudeen Balogun – testified that there was nothing about government acquisition known to the family. Moreso, DW2 Sikiru Balogun who lives in the property – under cross examination, maintained that title documents get burnt and that there was an agreement between Appellant his father on the land. He stated that the house was built in 1929 and had a 2 storey building on the land built by his father, a portion of the land was given to the claimant who pulled down the 2 storey building built by the father. This evidence was not shaken nor contradicted by the Appellant. See pages 333 to 335 and 337 to 338 of the Record. By the reply and defence to counterclaim dated 5/2/07, paragraphs 2, 3, 4, 6, 11.
2. The claimant deny paragraphs 2, 3, 4 and 5 of the Statement of Defence and says the land was acquired by the government and agreement dated, 20th May, 1891 is void.
3. In defence of the averment in paragraph 6 of the statement of defence, the claimant says that the affidavit was in 1987 and that there was never a time title deed of the land in issue got burnt as the defendant do not own the land in issue.
4. The clamant shall contend at the hearing of the suit that the Oloto Royal family ate the owners of the land in question from time immemorial and, they sold same to the claimant and not the predecessors of the Defendant and, that he bought the land in issue from the Oloto Royal family.5.
6. In defence of the suit in paragraph 12 & 14 of the statement of defence the claimants says that the government acquired the land and, that the said, land is his as same has been released to the claimant.
Therefore from the evidence on record the Respondents showed that they had been in possession of the land since 1929, title got burnt along with the part of the property. In 1981, following the Building Agreement, the Appellant pulled down the 2 story building.
The evidence is unshaken, uncontradicted and uncontroverted. Thus, the burden shifted to the Appellant who asserted the contrary. Section 133(1) of the Evidence Act 2011 stated
“In Civil cases, the burden of first proving existence or non-existence of a fact lies on the pending agreement whom the judgment of the court would be given if no evidence were produced on either side, regard being had t any presumption that may arise on the pleadings”.
See OBIAKU v EKESICHI [2003] FWLR (PT 166) 661.
The Appellant on the other side of the divide failed to lead any evidence to contradict those of the Respondents. He did not discharge the burden which shifted to him. He failed to provide a proof of how he got to the land if not through the Respondent; he did not prove acquisition and release, or fraud as asserted but merely tendered a Certificate of Occupancy.
Here, the Respondents were able to proof acts of ownership extending over a sufficient length of time and numerous and positive enough as to warrant their inference of the true ownership and by 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 title holder of the land in dispute.
The Respondents have established two out of the various ways of proof ownership of the land. It is agreed that the property got burnt in 1981 – both DW1 & DW2’s evidence is in proof of this.
The question then is whether the Respondent here proved the counterclaim?
In OBASI BROS CO. LTD v MBA SECURTIES [2005] 2 SC [PT 1] 51 at 71, the Supreme Court held that a counter claim has to be proved like all actions on the balance of probability the pendulum supplied at the Respondents’ side – unlike the Appellant who had much to dispute and was unable to prove same. The Building Agreement in proof of the counterclaim showed that as at 20/5/81, Appellant was to rebuild and manage the house on the land in dispute for 25 years and surrender same. It presupposes that there was an existing building on the property to be rebuilt, it proves the claim of Respondents that they had been in possession since 1929, even going by Appellant’s story that he met a mud house – same proved that the Respondent or party allow entrance into his property to rebuild had been on the land long before then. See: AUTA v IBE (2003) 13 NWLR (PT 837) 242 at 269 – 271.
A production of a Certificate of Occupancy does not automatically confer title on the person as it is merely a prima facie evidence which will give way to a better title. See ILONA v IDAKWO (2003) 11 NWLR (Pt 830) 53; IBRAHIM v MOHAMMED [2003] 6 NWLR (PT 817) 615.
I am in agreement with the trial judge when she found at page 424 of the record that there was no acquisition as contended by Exhibit A8, which was dumped on the court with no explanation to the particulars of the actual property and that there was a revocation of the acquisition as provided under the law. See DASTSOHO VS MOHAMMED (2003) 6 MJSC 97 at 109. Furthermore, there was no proof of compensation. I agree that the property was never acquired if so it could not here been released for the benefit of the Appellant and a Certificate of Occupancy issued therein as it would be contrary to the Land Use Act. According to the learned trial judge at page 425 of the record thus:
“If indeed there was compulsory acquisition for overriding interest and it was never employed for that purpose, a subsequent grant of statutory right of occupancy to any person other than the person who was served, the acquisition notice as the owner and who was also paid, compensation is a nullity and is recorded inconsistent with the land Use Act”
By virtue of the pleadings of the parties and the evidence lead in support, the counter claim was based on the long possession letting the Appellant into possession for the sole purpose of rebuilding is as per Exhibit A and the Appellant on the other hand failed to lead credible evidence in support of pleaded facts. In APENA v NLERU (2015) ALL FWLR (PT 790) 1256 at 1270, paras G-H, the Supreme Court held:
“In a civil case, the claim of the plaintiff is won and, lost on pleadings and secondly on the evidence led in support of averment in their statement of claim-
Equally the defence of the defendant is based on the facts averred, in his statement of defence and evidence in support thereof.
Parties are bound by the pleadings. No party will be allowed to set up a case other than that which is captured in his claim. In DUMEZ NIG PLC v ADEMOYE (2015) ALL FWLR (PT.791) 1450 – 1474, the court held that compensation is a necessary incident of valid acquisition by government and where there is no evidence for such, the land in dispute was never acquired. The court further held that the plea of revocation involves acknowledgment of the existence of a right of occupancy prior to that act of revocation coupled with the burden to plead and prove valid revocation of the right of occupancy therefore rests on that party alleging such revocation. See: N.E.W LTD v DENEP LTD (1997) 10 NWLR (PT.525) 48.
Again on the claim of title to land to the Claimant Appellant pleaded that he got title from Oloto family by paying for the land and he was issued a receipt which he tendered. In 1987, again in the Magistrate judgment he had stated that he bought the land long before he entered into the memorandum in 1976.
In agreeing with the trial courts findings, I am of the view that notwithstanding the fact that both parties traced the root of their title to the Oloto family, as between the Appellant and the Respondents, the former is stopped from challenging the Respondents’ title. See: OYEBIYI v LAUSEN (2004) 13 NWLR (PT 889) 62.
Having regard to the foregoing, this issue is resolved in favour of the Respondents.
ISSUE 2 & 3
The Appellant’s counsel submitted that both Appellant and Respondents claim ownership of 15, Ajibade Street Surulere, Lagos and that Appellant had traced his root of title to the Oloto family and tendered purchase receipt and also gave evidence that he procured certificate of occupancy in respect of land from Lagos State Government as per 328 – 329 of records. It is the submission of counsel that the Respondents on the other hand claimed that the land is their family land but that the only document tendered is the Memorandum of Building agreement of 29/5/1981 and that there is also evidence before the court that the Respondents forged a receipt of Oloto family.
It is the contention of the Appellant that he had a better title to the land and submitted that where there are competing claims to a land in dispute in a matter, the court will give judgment to the party that shows better title. He relied on ADOLE v AWAR [2008] 11 NWLR (PT 1099) 562; PROVOST, LAGOS STATE COLLEGE OF EDUCATION & ORS v EDUN [2004] 6 NWLR (PT 870) 476 at 497 – 498.
Appellant’s counsel contended that the trial judge referred to notices Ex A2 from Lagos State Development and Property Corporation (LSPDC) and held that the fact that notices were addressed to the Jimoh Balogun family was evidence of ownership of the land by the Respondents and the trial judge failed to take into account the that the notices were co-addressed to the Appellant who was developer of the property. He submitted that the recognition accorded by LSDPC through service of contravention notices has never and will never be evidence of ownership of land as it is not one of the ways of proving to title to land.
Counsel submitted that the tendering of original copies of the contravention notice served on the occupier for land does not constitute and cannot be used as evidence or determinant of ownership of land as there is a clear difference between the issue of admissibility of document and custody or proper custody. He relied on TORTI v UKPABIO (1984) 1 SC NLR at 214. He further contended that the Respondents did not plead or relied on the fact that the land belonged to them because they had in their custody originals of contravention and that here the court made a case for the parties. He relied on UDECHUKWU v UZE MUO [2009] 14 NWLR (PT 1162) 525; ETEA v MBA [2009] 3 NWLR (PT.1127) 1; EMEGOKWE v OKADIGBO (1973) 4 SC 113; AFRICAN CONTINENTAL SEAWAY LTD V. NIGERIAN DREDGING ROADS & GENERAL WORKS LTD [1977] 5 SC 235; GEORGE v UBA [1972] 1 ALL NLR (PT 2) 347. He urged the court to evaluate the evidence presented at the lower court and reverse the decision of the court citing MOBIL PRODUCING (NIG.) UNLTD v UDO (2008) 36 WRM 53 at 96 to submit on the instances areas where the Court of Appeal can interfere with the decision of the lower court as the lower court failed to make a concrete assessment/appraisal of facts. He also relied on ODUTOLA v SANYA (2008) 47 WRIYI 170 at 192 – 193.
The Respondents’ counsel in response submitted that the counter claim is a separate action. He cited OBASI BROS CO. LTD v MBA SECURITIES LTD (2005) 2 SC (PT 1 8) AT 11 74; ANWOYI v SHODEKE (2006) 6 S.C. 38. Respondent’s counsel contended that the contrary to the submission of the Appellant’s counsel, the strength of Appellant’s cases is in successfully tracing his root to the Oloto family whereas the strength of the Respondents’ counterclaim is in successful proof of their reversionary interest at the expiration of the memorandum of Building Agreement on the strength of which Appellant gained access to the property in dispute. Counsel stated that the Respondents were sued for themselves and on behalf of Jimoh Balogun family and that the Appellant recognizes this as such and also that nobody from the Oloto family came to testify in support of Appellant’s claim that that family sold the land to him and that Oloto family had never challenged the Respondents’ title and that claimant never approached family for financial assistant to ward off the alleged challenges and also that the Appellant did not controvert the fact that there was a fire incident that destroyed the property in 1981 and vital documents were lost.
He disagreed that issuance of certificate of occupancy is conclusive proof of title but contended that Appellant cannot profit from his own illegal act; that Appellant tendered an affidavit deposed to by the defendants in proof of the fact that the property got burnt. On the whole, he disagreed that the court relied on the weakness of Appellants claim.
In reply, Appellant’s Counsel contended that the judgment is against the weight of evidence and was not given on the strength of the Respondents’ case. Appellant’s counsel contended that he repurchased the land afresh from the Oloto Family and Lagos State Government. He contended that Memorandum of Agreement had become ineffective and invalid the moment the Lagos State Government were issuing notices to the effect that the land is under acquisition and the court ought not to have declared the Respondent as owners of the land.
RESOLUTION
This issue predictably deals with the evaluation of evidence at trial before the lower court by the parties in proof of their case. As noted earlier, it is evident from the pleadings and evidence on record that both parties claim title to the land and at one point or another traced the original ownership of the land to Oloto family. During trial, the Appellant tendered a purchase receipt which he claimed was issued in 2006 from Oloto family albeit during the lifespan of the Memorandum of building agreement entered into by the parties while Respondent stated that they had bought the land from Oloto family before 1929 and had been in possession through their grandfather and father who both built houses on the land and their children among whom are being sued lived and grew up there.
Meanwhile, Appellant in proof of his claim also tendered a land certificate of occupancy. On the legal status of a certificate of occupancy in proof of title to land, the Supreme Court in OTUKPO v JOHN & ANOR [2012] 7 NWLR (PT 1299) 357, per ADEKEYE, JSC held that a certificate of occupa.ncy is a prima facie evidence of title or possession which is however not a conclusive proof of title to the land it relates. The Learned Justice of the Apex court held at page 24 – 25, paras G – G that:
“… Consequently, if, it is successfully challenged, it can be nullified. Where there is a evidence to shout that the certificate was wrongfully obtained, the court is entitled, to nullify it. In order to succeed, in a claim to title, a party who held a certification of occupancy will need, to shout his root of title that is through his vendor and, that the vendor or seller has to show valid title to the land over which the purchaser secured his certificate of occupancy. This is because the certificate of occupancy can only be valid if the root of title originates from the customary owners of the property.
Where a competent authority issues a Certificate of Occupancy it raises the presumption that the holder is the owner in exclusive possession of the land to which the Certificate relates. It also raises the presumption that all the time it was issued, there was not in existence a customary owner title has not been revoked. However these presumptions are rebuttable. Where it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy the court can revoke. See OKPALUGA vs ADESOYE (1996) 10 NWLR (PT.476) 77; AUTA v. IBE (2003) 13 NWLR (PT.837) 247; DAKAT Vs. DASHE (1977) 12 (PT.531) 46.”
In the case at hand, the Appellant did not trace his root to any customary owner since he did not call any evidence from that family to authenticate the root. There was no evidence as to any agreement vesting title on him from the Oloto family. In this respect, a mere receipt cannot vest title.
In the light of the memorandum of building agreement, from the recital what was left for development was a land and part of a house, which in evidence was confirmed by DW2. It confirmed acts of long possession by the Respondents, an indication of customary occupancy by the Respondent and the first in time when put side by side by the title of the Appellant. The affidavit of loss of title document and the fact of fire incident all tally. At this point, I agree with the finding of the trial court that the contravention notice was issued first to the original owners of the property – Jimoh Balogun’s family. Even it is on record that the certificate of occupancy was issued on 16th February 2006 just at the expiration of the 25 years term in the building agreement. Therefore the Respondents’ claim to title is superior to that of the Appellant. It is further strengthened by the provision of Section 162 of the Evidence Act 2011 on presumption of accuracy of documents of 20 years old as sufficient evidence of the title of the Respondent herein and I so hold.
As to evaluation by the trial judge, as was held in OTUKPO v JOHN (supra), it is settled law that it is the duty of the trial judge to evaluate the evidence placed before him and to ascribe probative value thereto. It is also settled law that an appellate court can only interfere where the trial judge fails to evaluate the evidence properly. From a close look at the judgment, it is clear that the learned trial judge engaged in a dispassionate review of the evidence on record and demonstrated the preference for the Respondents’ claim in the counterclaim. The learned trial judge reviewed the evidence and address of parties taking into account every exhibit and how they touched on the case of the parties.
The learned trial court did not find any successful proof of the Appellant’s claim when the foundation of the claimant’s certificate of occupancy was acquisition and release was faulted and found to be void at page 424 of the record thus:
“Now to start with the claimant claimed that the land was compulsory acquired by the Lagos State Government for which he tendered the photocopy of CTC of Gazette of 1st November 1951, to wit, Exhibit A8, which ordinarily is inadmissible being a photocopy of what was certified in 2009. Even then, the said exhibit has no reference to the land, the subject matter of this suit and none was referred thereon. However, assuming it was rightly certified, the law is that a revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of a right for the purpose of vesting it in another grantee … If as alleged indeed by the claimant that the Defendants’ family had been compensated for the alleged acquisition (for which there is no shred of evidence before the court) it is because they are by law the deemed grantee of a right of occupancy which the alleged acquisition sought to revoke. The only purpose for which the land my subsequently be put to by the state government on the strength of that acquisition is one for public purpose only. They may not subsequently do anything that is not for overriding public interest. Therefore in this instance, if indeed there was a compulsory acquisition for overriding public interest and it was never employed for that purpose, a subsequent grant of statutory right occupancy to any person other than the person who was served the acquisition Notice as the owner and who also was paid compensation is a nullity and is void and inconsistent with the land Use Act”.
The finding of the lower court above is in my view unassailable and unimpeachable having regards to the evidence before the court. On the overall, the certificate of occupancy was found to be wrongly issued and was nullified, and that being the base upon which the Appellant’s case stand was knocked out, hence the claim tailed and was appropriately dismissed by the learned trial judge.
Meanwhile, the counterclaim of the Respondent whose proof of same was also placed on the balance of probabilities was evaluated as per the evidence led. It is pertinent to state that the counterclaim of the Respondents was predicated on the fact that they are entitled to the reversionary interest in the property, subject matter of dispute vide Exhibit D7 and that the Exhibit D7 memorandum of building was valid, having debunked all allegation/inability to prove the ingredient of fraud pleaded in his claim, on the part of the Respondents, invitation of the Respondents got him into the land before Exhibit D7 which he extended as binding between parties therein for 25 years in clause I (VII). At page 512 of the record, the learned trial judge held:
“What is the legal effect of Exhibit D7 which claimant entered, into with the Defendant’s family? It is that the claimant would, yield up possession of the building after 25 years of the execution of the Agreement or letter still its completion which was scheduled for before February 1982. Therefore, if the period is taken to reckon from February 1982, 25 years is expected, to have lapsed in February, 2007. It is curious that the Certificate of Occupancy Exhibit D.7 is dated 16th February, 2006 exactly one year before the expiration Exhibit D.7. It is therefore glaring that the Claimant was not prepared to yield up possession of the property in accordance with the agreement in Exhibit D.7…”
The foregoing clearly shows that the trial court evaluated the evidence correctly before arriving at the conclusion the way it is as per the Respondents’ counterclaim. I therefore do not find anything perverse in the judgment to warrant any interference and I so hold.
This is a case of a developer challenging the title of the grantor who put him into possession and had spent a period of 25 years reaping the fruit of his development and suddenly turn around to claim ownership of the said property thereby challenging the title of the party who let him into possession and alleging as the Appellant did that because the Respondents have not invested anything on the property they have nothing to lose. As the learned trial judge rightly noted, the Appellant cannot be allowed to shy away from complying with the terms of the agreement having taken benefit there from. Ipso facto, the learned trial judge was right in granting the reliefs sought by Respondent as per the counter-claim.
I resolve the issue 2 & 3 in favour of the Respondent.
Consequently, since the judgment was delivered at the trial court in 2011 and the Appellant is still holding over possession of the property in dispute, it is desirable in the interest of justice that the Appellant be made to pay for the wrongful and continuous occupation of the property up till possession is delivered up to the Respondents. See EZE & ORS v GOVERNOR OF ABIA STATE & ORS (2014) LPELR – 23276 (SC) judgment of the trial court with
Accordingly, this Appeal lacks merit and is hereby dismissed. The judgment of Dada J. of High Court delivered on 24/6/11 upholding the counterclaim is hereby affirmed except to order consequently that Appellant pay for holding up possession for each floor from 26/11/11 till possession is given.
Costs of N50,000.00 is awarded in favour of the Respondents.
SIDI DAUDA BAGE, J.C.A.:
I have read the judgment just delivered by my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA, My learned brother has ably and exhaustively dealt with the issues submitted for determination in this appeal. I also concur that this appeal lacks merit and is hereby dismissed by me.
I abide by the consequential order made as to costs.
CHINWE EUGENIA IYIZOBA, J.C.A.:
I read before now the judgment just delivered by my learned brother, A.O. OBASEKI-ADEJUMO JCA. I agree with his Lordship’s reasoning and conclusions. The Respondent discharged the evidential burden of proving ownership of the land by two of the methods of proving ownership as laid down in Idundun v Okunagbe (1976) 9-10 5C 227 – by act of ownership so numerous and positive and extending over such length of time as to warrant the inference of ownership and by act of long possession and enjoyment of the land. The appellant foiled to lead any credible evidence in rebuttal. I agree with my learned brother that the appeal lacks merit. I also dismiss it and abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
ADENRELE ADEGBONNYE (ESQ), WITH HIM,JOSEPHINE WEWE (MRS) AND IYIOLA GBADAMOSI (MISS)For Appellant
AND
OLUSEGUN OGUNGBADE ESQ., WITH OLAIYA ADEDAYO (MRS)For Respondent
