SIMON NWAGU v. ELDER RUFUS FADIPE
(2012)LCN/5350(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of May, 2012
CA/B/238/2008
RATIO
RELIEF: WHAT IS A DECLARATORY RELIEF
A declaratory relief is one that seeks the pronouncement of the court as to the status of a named matter, thing or situation. See: Enekwe Vs I.M.B. (Nig.) Ltd. (2007) ALL FWLR (349) 1053 at 1073 H; Alims Nig. Ltd v. U.B.A. Plc (2007) ALL FWLR (348) 971 at 981. It is a discretionary relief. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
LAND LAW: BURDEN OF PROOF IN A CLAIM FOR TITLE TO LAND
There is no doubt that in a claim for title to land the burden is on the claimant to prove the identity of the land in dispute. The burden does not shift. See: Aremu Vs Adetoro (2007) 16 NWLR (1060) 244 at 257 D – G; Omoregie Vs Idugiemwanye (1985) 2 NWLR (5) 41; Odiche vs Chibogwu (1994) 7 NWLR (354) 78; Ijade vs Ogunyemi (1996) 9 NWLR (470) 17. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
LAND LAW: WHETHER A SURVEY PLAN IS A SINE QUA NON IN AN ACTION FOR DECLARATION OF TITLE
However, the law is equally settled that a survey plan is not a sine qua non in an action for declaration of title where the identity of the land is not in dispute or there is cogent evidence of the identity of the land.
See: Aremu Vs Adetoro (supra) at 262 A – C; Atolagbe Vs Shorun (1985) 1 NWLR (2) 360; Adedeji Vs Oloso & Anor. (2007) 5 NWLR (1026) 133; (2007) LPELR (Law Pavilion Electronic Law Reports) – SC.60/2002. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
APPEAL: ATTITUDE OF THE APPELLATE COURT TO THE FINDINGS OF THE TRIAL COURT
It is not the function of an appellate court to substitute its own views of the evidence for those found by the trial court. Thus where the trial court has properly taken advantage of the opportunity of seeing and hearing the witnesses, an appellate court would not interfere with its findings unless it is shown that the findings are perverse or are not supported by the evidence. See: Oshe Vs Okin Biscuits Ltd. (2010) 11 NWLR (1206) 482 at 493 D – E; Okoye Vs Ejiefo (1934) 2 WACA 130; Odofin Vs Ayoola (1984) 11 SC 72. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
SIMON NWAGU Appellant(s)
AND
ELDER RUFUS FADIPE
(For himself and on behalf of entire Member of Late Pa Fafowora family) Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 22/4/2008 in favour of the plaintiff (respondent herein).
By his writ of summons dated 28/4/04 the plaintiff sought the following reliefs against the defendant:
1. A declaration that the plaintiff is entitled to statutory right of occupancy of a piece or parcel of land measuring about 23′ x 20′ at No, 113, Oba Adesida Road, Akure on which the defendant has trespassed being the property of all surviving members of Late Pa Fafowora’s family.
2. N500,000.00 damages against the defendant for trespass to the said land.
3. Perpetual injunction restraining the defendant by himself, his servants, agents or whomsoever from entering the said land.
The facts that gave rise to the case are as follows: The plaintiff’s case was that his grand father, Pa Fafowora was a Deji’s messenger during his life time. Because of his relationship with the Deji he was given the land in dispute to build a house. When his sister Madam Fayiobi lost her husband, he invited her to live with him. Madam Fayiobi came with her son Ige Ogini. After Pa Fafowora’s death, Madam Fayiobi continued to live there until her death leaving her son Ige Ogini residing there. Ige Ogini continued to live in the house when he went blind. It was the plaintiff’s case that Pa Fafowora’s family permitted Ige Ogini to continue using the room he occupied during his mother’s lifetime on compassionate grounds. He used or let out the room until he died in 1999. After his death his son, Sunday Ige, continued to use the room. He later sold it to the defendant in 2002. It was the plaintiff’s contention that Sunday Ige had no right to sell the room to the defendant who had subsequently built an additional shop beside the room originally occupied by Madam Fayiobi. He alleged that the defendant was a trespasser.
On the other hand the defendant contends that the Deji gave the land in dispute to Pa Fafowora and Madam Fayiobi jointly, when it was still a virgin forest. That the two of them jointly developed it and both of them lived there until Pa Fafowora died. After the death of Pa Fafowora, Madam Fayiobi built another house at the back of the one she jointly built with her brother. In 1956 an action was instituted against her for possession. The native court declared her the owner. According to the defendant, the State Government acquired the thatched-roof house jointly built by Pa Fafowora and Madam Fayiobi for the construction of Oba Adesida Road in 1976. It was accordingly demolished. According to the defendant Madam Fayiobi moved to her house at the back of the demolished house and gave some rooms to the children of her late brother Pa Fafowora. The children later converted their rooms to shops. It was the defendant’s contention that Ige Ogini, Madam Fayiobi’s son inherited her property including the land in dispute upon her death and that Sunday Ige, Ige Ogini’s son inherited the property when Ige Ogini died and later sold it to the defendant.
At the court below, the parties filed and exchanged pleadings, led evidence and tendered exhibits. After considering the evidence and the written addresses of learned counsel the learned trial Judge entered judgment in the plaintiffs favour as follows:
“The effect of all these is that the sale of the two shops by Sunday to the defendant was a sham. The vendor had no power to dispose of the shops he not being the owner. …
On the issue of damages the plaintiff has not made out a case, Rather it is evidence that the defendant, prior to the sale was a tenant on the property. He was there legitimately and he was also in possession before his holding metamorphosed into ownership through the sham sale. The defendant in the circumstances cannot be held to be a trespasser. In the final analysis the plaintiff’s action succeeds. He is therefore entitled to the statutory right of occupancy of a piece or parcel of land measuring about 24′ x 20′ at No. 113 Oba Adesida Road, Akure, being the property of all surviving members of Late Pa Fafowora’s family.”
The appellant who was the defendant at the court below was dissatisfied with the judgment and filed a notice of appeal dated 2/5/08 containing nine grounds of appeal. The parties herein duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief is dated and filed on 6/1/09. It was deemed properly filed on 4/2/2010. The appellant also filed a Reply brief dated and filed on 27/4/2011. At the hearing of the appeal on 8/2/2012, C.S.O. TITILOYE ESQ., learned counsel for the appellant adopted and relied on both briefs and urged the court to allow the appeal. The Respondent’s undated brief was filed on 21/3/2011. S.L. ONIPEDE ESQ., learned counsel for the respondent adopted and relied on the said brief and urged the court to dismiss the appeal.
The appellant formulated seven issues from the nine grounds of appeal as follows:
1. Whether 1st relief of the plaintiff’s statement of claim before the court was proved in evidence to entitled the plaintiff to judgment of the court.
2. Whether Relief 1 of the statement of claim granted by the trial court is enforceable against the defendant,
3. Whether the trial court can suo moto amend relief 1 of the statement of claim in his judgment or grant a relief not sought or canvass by the plaintiff throughout the trial of the case.
4. Whether the plaintiff did not fail totally after the court dismissal of Relief 2 and of the statement of claim.
5. Whether the trial judge breached principle of fair hearing in his consideration of written address of the defendants counsel.
6. Whether the trial judge can by his judgment amend or set aside the judgment of the Akure Native Court upon which the defendant hinged his claim of doctrine of latches & acquiescence.
7. Whether the court properly directed himself to the uncontroverted facts before the court as addressed by the Defendant during the trial of the case.
The respondent formulated two issues for determination:
1. Whether or not the Plaintiff/Respondent discharged the burden of proof bestowed on him to entitle him to his claims in view of the evidence he led and adduced before the lower court.
2. Considering the success of the plaintiff/respondent in winning this case at the court below, should he not have been entitled to award of damages even if in the general form at least.
Having examined the issues formulated by both parties, I am of the view that the issues formulated by the appellant adequately address the issues in contention in this appeal. They are however rather prolix and may be condensed into 4 issues thus:
1, Whether Relief 1 of the plaintiff’s statement of claim was competent so as to warrant the award thereof in his favour in the terms granted by the learned trial Judge and whether the plaintiff’s claim ought to have failed in its entirety upon the dismissal of Relief 2 of his statement of claim.
2. Whether the learned trial Judge could by his judgment amend or set aside the judgment of the Akure Native Court upon which the defendant hinged his defence of laches and acquiescence.
3. Whether the learned trial Judge breached the defendant’s right to fair hearing.
4. Whether the judgment is against the weight of evidence.
The appeal shall be determined on the above issues. It is necessary to observe at this stage that in formulating issues for determination, a respondent who has not cross appealed or filed a respondent’s notice must confine himself to the grounds of appeal filed by the appellant. See: Ossai Vs Wakwah (2006) 4 NWLR (969) 208 at 224 B – C; Okove Vs N.C. & F. Co, Ltd. (1991) 6 NWLR (199) 501. The respondent’s issue 2 does not arise from the notice and grounds of appeal filed by the appellant.
It is therefore incompetent and accordingly discountenanced.
Issue 1
Whether Relief 1 of the plaintiff’s statement of claim was competent so as to warrant the award thereof in his favour in the terms granted by the learned trial Judge and whether the plaintiff’s claim ought to have failed in its entirety upon the dismissal of Relief 2 of his statement of claim.
In support of this issue, learned counsel for the appellant argued that in respect of his claim for a declaration that he is entitled to a statutory right of occupancy in respect of the land in dispute, the respondent ought to have pleaded facts that would satisfy the requirement of Section 9 (1) of the Land Use Act. He submitted that the respondent did not state that he had taken any steps to apply to the Governor for the issuance of a certificate of occupancy or that the defendant had prevented him from obtaining one. He contended further that the respondent had abandoned his claim to a particular extent of land because he failed to mention the measurement of the land throughout his evidence and failed to tender a survey plan with specified beacons and pillars. He submitted that a claim for a declaration of entitlement to a certificate of occupancy is different from a claim for a declaration of title to land. He submitted that a certificate of occupancy is a creation of statute i,e. the Land Use Act and to be entitled to same the respondent must have fulfilled all the statutory requirements. He submitted that as the respondent failed to plead or prove any of the requirements, there was no evidence to support his claim and the lower court ought not to have granted it. He relied on: U.B.A. Vs Samba Petroleum Co. Ltd. (2003) FWLR (137) at 1221 D – E.
Learned counsel also submitted that the respondent failed to plead the dimensions of the land in dispute. He contended that stating on the writ of summons and statement of claim that the land is ”24” x 20” ”without more does not show whether the measurement is in acres, meters, kilometres or feet. He contended that since the appellant pleaded in his statement of defence that the land he bought measures 17 feet by 16 feet, the exact dimension of the land was in dispute and the burden was on the respondent to prove same, which he failed to do. On the need to identify the land in dispute with certainty, he relied on: Owhonda Vs Ekpechi (2003) FWLR (181) 1565 at 1582 D.
Learned counsel submitted further that the action was not maintainable against the appellant because he is not the Governor of Ondo State saddled with the responsibility of granting a certificate of occupancy in favour of the respondent. He contended that there is no dispute between the parties on record regarding the issuance of certificate of occupancy. He also submitted that the Governor of the State ought to have been made a party to the suit and that failure to join him was fatal to the respondent’s case.
Learned counsel argued that the learned trial Judge was wrong in granting a modified version of the respondent’s first relief. He contended that by removing the words ”which the defendant has trespassed” His Lordship had granted a relief not pleaded or canvassed before the lower court. He submitted that the basis on which the case was fought before the lower court was that the appellant was a trespasser. He argued that having found that the appellant was not a trespasser, His Lordship ought to have dismissed Relief 1 in its entirety rather than amending it suo motu and granting it as amended. He contended that such amendment is an affront to the principle of fair hearing and a descent into the arena of conflict.
In reply to the above submissions, learned counsel for the respondent submitted that the arguments of learned counsel for the appellant on the competence of the respondent’s claim for a declaration of entitlement to a statutory right of occupancy against the appellant without satisfying the requirements of Section 9 (1) of the Land Use Act and without joining the Governor of the State as a party are misplaced and amount to a mere academic exercise or at best a legal technicality. On the need for counsel to rely less on legal technicalities he relied on: General Oil Ltd. Vs Oduntan (1990) 7 NWLR (163) 423 at 441 and 442. He submitted that once the respondent had led evidence upon which the lower court was satisfied that he was entitled to the declaration sought, it paved the way for the respondent to apply for and have a certificate of occupancy issued in his favour. With regard to the identity of the land in dispute, learned counsel referred to the writ of summons and statement of claim where the land is described as measuring ” 24′ x 20′ ”. He submitted that ” 24′ x 20′ ”means 24 feet by 20 feet. He noted that the court below facilitated a visit to the locus in quo, which enabled the parties and the court to see the land in dispute physically. He submitted that the extent of the land is not in contention between the parties. I have given careful consideration to the submissions of learned counsel, the pleadings and the evidence led at the court below. The appellant’s first complaint is that the respondent failed to plead or prove the requirements of Section 9 (1) of the Land Use Act to show that he is entitled to the relief sought. Learned counsel is of the view that there was no basis for the respondent’s claim before the lower court because he had not shown that he had applied for the grant of a certificate of occupancy, which had been refused and further that the appellant is not the proper party against whom to seek the said relief.
A perusal of the respondent’s first relief reproduced earlier shows clearly that it is declaratory in nature. A declaratory relief is one that seeks the pronouncement of the court as to the status of a named matter, thing or situation. See: Enekwe Vs I.M.B. (Nig.) Ltd. (2007) ALL FWLR (349) 1053 at 1073 H; Alims Nig. Ltd v. U.B.A. Plc (2007) ALL FWLR (348) 971 at 981. It is a discretionary relief.
The court has the power to declare contested legal rights, subsisting or future, of the parties represented before it. See: Oloruntoba-Oju Vs Dopamu (2008) 7 NWLR (1085) 1 at 36 F – H, Obi Vs INEC (2007) 11 NWLR (1046) 560. Where a claimant seeks a declaration that he is entitled to the grant of a customary or statutory right of occupancy in respect of a piece or parcel of land, what he is seeking from the court is a declaration in his favour that as between him and the defendant he is the one entitled to the grant. He is not asking the court to make a grant in his favour. He is only seeking a pronouncement from the court as to his rights as against his adversary. Where he is successful, the declaration made in his favour would form the basis for his application for a grant of the relevant certificate of occupancy in accordance with the Land Use Act. With due respect to learned counsel for the appellant, he appears to have misconstrued the purport of a declaratory relief of this nature. No doubt being a discretionary relief the claimant must plead and lead evidence to establish his entitlement to the declaration sought. Such a relief cannot be granted upon the admission of the other party. It is also evident that at the stage of filing the writ of summons and statement of claim and from the evidence before the court, no other party had applied for or been granted a certificate of occupancy in respect of the land in dispute. It was therefore unnecessary to join the Governor of the State as a party to the suit. If and when the respondent applies to the appropriate authority for the grant of a certificate in his favour, it is the duty of that authority to determine whether he has fulfilled the necessary conditions for the grant. Indeed the authority of U.B.A. Vs Samba Petroleum Co. Ltd. (supra) relied upon by learned counsel for the appellant supports this view. I am therefore of the view that as between the plaintiff and defendant at the court below, the plaintiff’s relief 1 was proper.
Another issue raised by learned counsel for the appellant is that the land in dispute was not described with certainty. He contended that the way in which the measurement of the land is expressed on the writ of summons and in the pleadings does not state the unit of measurement. He also argued that the respondent failed to file a survey plan showing the extent of the land in dispute and its survey pillars.
There is no doubt that in a claim for title to land the burden is on the claimant to prove the identity of the land in dispute. The burden does not shift. See: Aremu Vs Adetoro (2007) 16 NWLR (1060) 244 at 257 D – G; Omoregie Vs Idugiemwanye (1985) 2 NWLR (5) 41; Odiche vs Chibogwu (1994) 7 NWLR (354) 78; Ijade vs Ogunyemi (1996) 9 NWLR (470) 17. However, the law is equally settled that a survey plan is not a sine qua non in an action for declaration of title where the identity of the land is not in dispute or there is cogent evidence of the identity of the land.
See: Aremu Vs Adetoro (supra) at 262 A – C; Atolagbe Vs Shorun (1985) 1 NWLR (2) 360; Adedeji Vs Oloso & Anor. (2007) 5 NWLR (1026) 133; (2007) LPELR (Law Pavilion Electronic Law Reports) – SC.60/2002. In the instant case there is no dispute whatsoever on the pleadings as to the identity of the land in dispute, which is stated to be situate at No. 113 Oba Adesida Road, Akure. Also the measurement of the land is not in dispute as no issue was raised in this respect on the pleadings. Furthermore the court conducted a visit to the locus in quo where the parties were able to identify the disputed land.
The appellant did not aver anywhere in his pleadings that he was misled by the description of the land as stated by the respondent. I am of the view that the court may take judicial notice of the fact that when single inverted commas are used after the numbers describing a parcel of land they usually indicate measurement in feet. Where the land is measured in hectares or metres, it is specifically so stated. In any event, as observed earlier the parties were in no doubt as to the identity and size of the land in dispute.
Another complaint of the appellant is that the learned trial Judge had no business amending the respondent’s prayer suo motu by deleting certain words therefrom i.e. ”on which the defendant has trespassed.”
Later in the judgment I shall consider whether the respondent established his claim upon a balance of probabilities or upon a preponderance of evidence. At this stage what is necessary is to determine whether the court is bound to grant a relief in the exact terms used by the claimant, It has been settled by a line of authorities that while a court of law is not entitled to grant more than what is claimed, it has discretion where the circumstances of the case so warrant to grant less. See: Ezeonwu Vs Onyechi (1996) LPELR (Law Pavilion Electronic Law Reports) SC.275 1991 at 25 F – G; (1996) 2 SCNJ 250; Ekpenyong & Ors. Vs Nyong & Ors. (1975) 2 SC 71 at 80 – 81. A court is also empowered to grant consequential reliefs flowing naturally from the relief (s) granted. In the present case the respondent in addition to his claim for declaration sought damages for trespass and injunction against the appellant. From the manner in which relief 1 was couched the claimant sought not only a declaration that his family is entitled to a statutory right of occupancy in respect of the land in dispute but within the prayer also urged the court to declare that the appellant had trespassed on the land.
The lower court having found that the respondent had satisfied the court that he was entitled to the declaration sought but had failed to prove that the appellant was a trespasser could not have granted the declaration in the precise terms as couched by the respondent. It would not be correct to say that the learned trial Judge amended the respondent’s claim suo motu.
It was within the court’s powers to grant the relief in a manner that best reflected its decision. The appellant has failed to show that he suffered a miscarriage of justice by the manner in which the declaration was couched.
This issue is accordingly resolved against the appellant.
Issue 2
Whether the learned trial Judge could by his judgment amend or set aside the judgment of the Akure Native Court upon which the defendant hinged his defence of laches and acquiescence.
Learned counsel for the appellant submitted that by Exhibit D1, a Judgment of the Akure Native Court delivered in 1956, Madam Fayiobi was declared the owner of the land at 113 Oba Adesida Road, Akure. He submitted that the judgment of the lower court stating that the land in dispute belonged to Pa Fafowora to whom it was given by the Deji is contrary to facts recorded by the Native court in the course of the judgment to the effect that Madam Fayiobi testified that the land was given to both Pa Fafowora and herself to build a house for their mother. He submitted that the Native Court made a contrary finding of fact in its judgment by holding that the land was given to Pa Fafowora who was the Deji’s messenger. He noted that the said Native Court however held that the land belongs to Madam Fayiobi. He noted further that one of Pa Fafowora’s siblings who testified as PW2 accompanied Madam Fayiobi to the Native Court and stood by and did nothing when Madam Fayiobi was declared the owner of the land. He submitted that PW2 and his siblings are estopped from denying that they were aware that Madam Fayiobi was declared the owner of the land and that her successor-in-title had been exercising right of ownership over the !and, He argued that 50 years have elapsed between the Native Court judgment and the filing of the case and the respondents never challenged the right of ownership of the appellants predecessors-in-title. He contended that they are caught by the doctrine of laches and acquiescence. He referred to the collection of rent by Ige Ogini and his son Sunday Ige, which the respondent described as a convenient family arrangement and submitted that such a situation where a party collects rent as landlord is aimed at deceiving third parties that the person collecting the rent is the landlord of the property. He submitted that the doctrine of laches and acquiescence would not allow the party who has acquiesced in this state of affairs to withdraw the representation, which in this case has led the appellant to part with N150, 000.00 to purchase the property. He relied on: Okereke Vs Nwanlcwo (2003) FWLR (158) 1246. He also submitted that it was not proper for the learned trial Judge to act on the conflicting facts contained in Exhibit D2 (Exhibit D1) rather than the truth revealed through the evidence of witnesses who testified before the court. He referred to: West African Breweries Ltd. Vs Savannah Ventures Ltd. (incorrect citation provided but found in (2002) 5 SCNJ 269).
Before considering the reaction of learned counsel for the respondent, I must observe that the purpose of briefs of argument filed by parties to an appeal is to assist the court in determining with precision and in a concise manner the real issues in controversy between the parties and to martial their arguments and submissions in a way that makes it easy for the court to discharge this function. The respondent’s brief, with due respect to learned counsel is not very helpful to the court in this respect. Having condensed the issues for determination into a single issue (issue 2 has been declared incompetent), he failed to address the arguments in the appellant’s brief sequentially. He has placed additional burden on the court, which has to fish around the brief to ascertain which part of it is addressing which particular issue.
Now, back to the issue at hand. I must also note that Exhibit D1, the judgment of the Akure Native Court was referred to in the respondent’s brief as Exhibit D6. When one looks at the exhibit one can see that it was initially marked Exhibit D6. This was however cancelled and Exhibit D1 inscribed thereon. I therefore take any reference to Exhibit D6 to mean Exhibit D1.
Learned counsel submitted that there are inconsistencies between the evidence of DW2 and DW3 in relation to Exhibit D1, tendered through DW3. He submitted that where a party gives contradictory evidence and is unable to reconcile the apparent inconsistency, he does considerable damage to his case. He relied on Daniel Bassil Vs Chief Lasisi Faiebe & Anor. (2001) 4 SC (Pt. II) 119 at 126 – 127. He submitted that the finding of the Native Court that Pa Fafowora was the original owner of the land in dispute is against the appellant’s contention that the land belonged to Pa Fafowora and his sister, Madarn Fayiobi jointly. He noted that Pa Fafowora was the plaintiff’s grandfather and the father of Mrs. Esther Omojowo who testified as PW1. He submitted that from the evidence before the court, Madam Fayiobi, the mother of DW3’s father was Pa Fafowora’s younger sister and merely lived with him being her older brother. He submitted that the evidence led in support of the respondent’s case was in line with Yoruba Customary Law where the property of a deceased who dies intestate leaving children surviving him devolves on his children to the exclusion of other blood relations. He relied on: Amodu Vs Obayomi (1992) 5 NWLR (242) 503 at 512 A.
On the issue of convenient family arrangement and the doctrine of laches and acquiescence, learned counsel submitted that the case at the lower court was brought in a representative capacity for and on behalf of the entire family of late Pa Fafowora. He stated that the family arrangement referred to excluded DW3 who sold the property to the appellant. He submitted that the maxim ”caveat emptor” applied to the appellant and he ought to have been more cautious when he sought to purchase the property. He submitted that the doctrine of laches and acquiescence is not applicable to the facts of this case. A convenient starting point in the consideration of this issue is the finding and judgment of the Native Court of Akure dated 18/12/56 as contained in Exhibit D1. The case was between Orunmoluyi, the Ohunorun of Akure and Fayiobi (f) of Akure. It was established at the trial that Fayiobi referred to therein was Madam Fayiobi, the younger sister of Pa Fafowora. The claim was ”1. Ownership of house No. 113 Okegan street, Akure. 2. Order of court to eject the defendant and his people immediately.” The court listened to the evidence of the parties and their witnesses and visited the locus in quo and made the following findings:
”The plaintiff is the Quarter Chief of Okegan quarter where the land in dispute is situated. This court agrees that about 50 years ago the place was vacant and as Fafo was the Deji’s messenger, he gave the place to him to build and he built the house on or about 50 years ago and ever since the deceased Fafo, his wife, the defendant and all his family have since been living there. Already there is a house there it is clear that every quarter chief holds every land in trust for the people of his quarter. Plaintiff has not (sic) justification to take the land from the defendant.
Judgment: Ownership of land is for the defendant.”
Now in interpreting the findings and judgment above, it is the appellant’s contention that the judgment conferred exclusive ownership of the property on the defendant, Madam Fayiobi. With due respect to learned counsel, I am unable to accept the rather simplistic interpretation. This is because the final judgment must be considered in the con of the findings of the court. The finding of the court was that the land was given to Pa Fafowora, the Deji’s messenger to build a house. He built the house and lived there with his wife, the defendant Madam Fayiobi and other members of his family. It is clear from the findings above that the land was given to Pa Fafowora by virtue of his position as a messenger to the Deji.
As correctly observed by the learned trial Judge at page 81 of the record there is nothing in the findings above to suggest why the property would have been given to Pa Fafowora and his sister jointly. In their findings the members of the Native Court acknowledged the fact that Madam Fayiobi had been living in the house built by Pa Fafowora along with his wife and other members of his family. It was for this reason that the court held that there was no justification for the plaintiff to take the land from her. This was also the basis of the judgment i.e. that as between the two parties Madam Fayiobi, being the person in possession at the time, Pa Fafowora being deceased, was declared the owner of the land.
Learned counsel for the appellant has also argued that the findings contradict the evidence as recorded by the court. There is no evidence of an appeal against the findings. It is noteworthy that the Judgment was tendered by the appellant. He cannot choose the portion that is favourable to his case and discard the rest. PW2 one of the surviving daughters of Pa Fafowora testified in support of the fact that the land was given to her father who was the Deji’s messenger and that Madam Fayiobi went to live with him when she lost her husband. DW2, the wife of Ige Ogini, on the other hand testified that Madam Fayobi was her mother in law and that the land in dispute was given to her mother in law and Pa Fafowora jointly.
She testified inter alia at page 24 of the record thus:
”I know the property at 113 Oba Adesida Road Akure. The owners of the property on which the house is built was my husband’s mother and her senior brother. Fayobi is the name of my husband’s mother and her brother’s name is Fafo. It was Oba Adesida who gave them the land. The two of them shared the land. The elder took the front while the younger took the back. The two of them developed their land. The house of Fafo had fallen into ruins even before he died. The house of Fayobi had been re-developed. The one in front has been acquired by Government. It is myself and my son who now take care of (the) property of Fayobi”
Under cross-examination she stated that she was not aware that Pa Fafowora worked in the Deji’s palace and maintained that it was not correct to state (as held in the native court judgment) that he was given the land because he was the Deji’s messenger. Being an in-law and not an original member of the family, it is not surprising that DW2 was not familiar with the Fafowora family history. I agree with the learned trial Judge that the evidence led by the respondent and his witness was more credible as regards the original ownership of the land in dispute i.e. that it was given to Pa Fafowora by the Deji and he invited his widowed sister Madam Fayobi to live with him. The contention of learned counsel for the appellant that the learned trial Judge by his judgment amended or set aside the judgment of the Native Court is unfounded.
On the issue of laches and acquiescence, the learned trial Judge held thus at page 79 of the record:
”The elements of laches and acquiescence have not occurred in the present case because the plaintiff was conscious of the defendant’s predecessor-in-title’s action and it was when the defendant’s (sic) exceeded their limit that he instituted this action.
In any case a defence of laches and acquiescence must be specifically pleaded and proved by a party who seeks to rely on it.
… Since this equitable defence was not specifically pleaded and proved the court cannot ad on it.”
The law is settled that the equitable defence of laches and acquiescence must be specifically pleaded and proved. See: Oyedele Vs Ogun & Anor. (1975) 1 ALL NLR 340; Isaac Vs Imasuen (2007) ALL FWLR (376) 689 at 710 B. I have examined the entire Amended Statement of Defence filed by the appellant and find that the defence of laches and acquiescence is nowhere pleaded. Indeed the appellant’s defence was that the land in dispute belongs to his predecessor-in-title by inheritance. The finding of the learned trial Judge in this regard cannot be faulted. This issue is also resolved against the appellant.
Issue 3
Whether the learned trial Judge breached the defendant’s right to fair hearing.
Learned counsel for the appellant contended that in summarising the written addresses of counsel, the learned trial judge failed to consider the issues raised in the defendant’s reply to the plaintiff’s address. He submitted that the appellant’s right to fair hearing had thereby been infringed.
The reaction of learned counsel for the respondent to this submission was that there was nothing to show that the learned trial Judge did not take the submissions into consideration. At page 75 of the record the learned trial Judge held:
”Mr. Titiloye the learned counsel for the defendant filed a reply to issues raised in the address of the plaintiff. In the reply address he raised eight issues. A counsel under our rules of procedure may in an appropriate case file a reply or rejoinder to the address of the opposite party. But in doing so such reply or rejoinder must be based on points of law only. But here Mr. Titiloye’s reply except the first and last issues are either further argument or an expatiation on his former submissions. The first and last issues relate to Exhibit D6 and the principle of latches (sic) and acquiescence respectively. I shall address the two issues at the appropriate stage in this judgment.”
I have considered the reply address at pages 50 – 53 of the record. I agree with the learned trial Judge that apart from issues 1 and 8 in the reply address, issues 2 to 7 amount to taking a second bite at the cherry. In other words learned counsel sought to advance additional arguments in support of the defence rather than responding to any new issues raised in the respondent’s address. Furthermore, the appellant has not stated which aspects of the said address, had they been considered by the learned trial Judge would have resulted in a different conclusion. The learned trial Judge clearly considered the entire address and made use of relevant aspects not already dealt with in the respondent’s main address. The allegation of a denial of fair hearing therefore cannot be supported. It is not every mistake or omission by a trial Judge that would result in the decision being set aside. It must be shown that a miscarriage of justice was occasioned thereby. In the instant case the appellant has not satisfied the court that there has been a miscarriage of justice in this regard. This issue is accordingly resolved against the appellant.
Issue 4
Whether the judgment is against the weight of evidence.
In support of this issue, learned counsel for the appellant submitted that the following facts and exhibits were uncontradicted:
1. That the appellant’s predecessor-in-title, Ige, apart from being in possession of the property for over 50 years had been exercising the rights of a landlord over tenants in the property.
2. Madam Fayobi, the appellant’s predecessor-in-title was declared the owner of the property in dispute by the Akure Native Court in 1956 in the presence of PW2.
3. That the plaintiffs have never taken steps to challenge the judgment or the rights of Madam Fayobi and her successors-in-title.
4. That the appellant bought the land from Madam Fayiobi’s grandson for consideration of N150, 000.00.
5. That there are other shops with different landlords and tenants at 113 Oba Adesida Road, which are not the subject of this case.
6. That the respondent and his family never challenged the Ige’s rights over the property throughout the time that the appellant was Ige’s tenant.
7. That the respondent never challenged DW4’s evidence that he was once the Ige’s tenant.
Learned counsel submitted that the court is bound to enter judgment based on the undisputed facts before it. He submitted that it is not open to the learned trial Judge to impugn the credibility of witnesses whose evidence was not discredited by cross-examination.
Learned counsel for the respondent noted that some of these issues had been addressed earlier in his brief. At pages 3-5 of his brief he argued that the evidence of DW2 and DW3 vis a vis Exhibit D1 (or D6) was inconsistent and contradictory. He maintained that Exhibit D1 was in favour of the respondent’s case that the land in dispute originally belonged to Pa Fafowora, the respondent’s grandfather and the father of DW2.
In the course of resolving issue 2, I agreed with the learned trial Judge that the judgment of the Native Court, Akure had settled the fact that the land in dispute was originally given to Pa Fafowora by the Deji on account of his being a palace messenger and that Madam Fayobi moved to live with him upon the death of her husband. Although the appellant and his witness DW2 claimed that the land was given to Pa Fafowora and Madam Fayiobi jointly, there is nothing in Exhibit D1 that extinguishes Pa Fafowora’s rights over the property, as it was not an issue before that court. It is therefore wrong for the appellant to rely on the decision in that case to claim that the property belonged to Madam Fayiobi.
In a claim for declaration of title to land the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not on the weakness of the defence. See: Mogaji Vs Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 at 429 D – E; Kodilinye Vs Odu (1936) 2 WACA 336 at 337; Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (946) 671. The exception is where the defendant’s case supports his case and contains evidence on which the plaintiff is entitled to rely. See: Mogaji Vs Cadbury (supra) at 429 – 430 H – A. In the instant case, Exhibit D1 tendered by the appellant supports the respondent’s case that the land in dispute was given to Pa Fafowora as the Deji’s messenger.
It was the appellant’s contention that when the land was given jointly to Pa Fafowora and Madam Fayiobi, he developed the front while Madam Fayobi developed the back and that the front part of the propert was demolished to make way for Oba Adesida Road, leaving Madam Fayobi’s portion at the back. DW2 testified that Madam Fayobi had five shops out of which she gave the respondent family three and kept two for herself. Her son, Sunday Ige (DW3) on the other hand testified that his father owned four shops. That he inherited the four and sold two while he still has tenants in two. He also testified that his father (not Madam Fayobi) gave three shops to the respondent’s family when the State Government demolished the shops earlier given to them. Their evidence on this issue is clearly contradictory.
The respondent and his witness, PW2 being the eldest son and youngest daughter of Pa Fafowora on the other hand testified that their father invited Madam Fayiobi to live with him when she lost her husband.
That her son Ige Ogini lived with her. That after her death he became blind and the family allowed him to continue using the room, which was converted into a shop, for his maintenance until he also passed away. PW1 testified that although DW3, Sunday Ige was warned not to collect rent from the shop after his father died, he told him that he did not collect any rent because his father had collected rent from the tenant in advance. It was also the respondent’s case that the property had not been partitioned although members of the family were collecting rent from individual shops. In the course of the trial DW2 and DW3 admitted that Ige Ogini was not the only child of Madam Fayiobi. They admitted that she had four children.
Three are dead while one daughter, Usiola was still alive. With regard to the evidence of DW2 to the effect that Pa Fafowora and Madam Fayobi jointly owned the land and that Pa Fafowora built on the front portion while Madam Fayobi built on the back portion, the learned trial Judge who conducted a visit to the locus in quo held thus at page 81 of the record:
“In fad the faction (sic) of the evidence as to who was given the land and how Madam Fayiobi got to No, 113, Oba Adesida Road, Akure accords with reality and contemporary situation. It is not uncommon nowadays for a brother to invite his sister whose husband has died to live with him more so if the deceased husband has not got a house of his own before he died. DW2 did not state the circumstances that made Madam Fayiobi to leave her husband’s house to live with her brother Pa Fafowora. The witness did not state what relationship if any that existed between the Deji and Madam Fayiobi that informed the Deji to give land to her and her brother jointly.
The mendacity of DW2’s evidence can be seen when she said that the Deji gave Pa Fafowora and Madam Fayiobi the land at No. 113, Oba Adesida Road. That Pa Fafowora built on the front while Madam Fayiobi developed the back. The land only had one side that abbots (sic) the main road. It was not possible to have developed the bank (sic) without offending or contravening the Town Planning Authority Regulations. The evidence given by the plaintiff is more in accord with contemporary situation.”
His Lordship continued thus at pages 83 – 84:
”In the instant case it is the consensus of Pa Fafowora family that the entire property at No. 113 Oba Adesida Road, Akure has not been partitioned. In other words none of the members of the family has any absolute ownership of the shop or shops on which they are currently collecting rents. In the case of Sunday Ige who traced his holding to Madam Fayiobi as at the time Madam Fayiobi lived there she did not have absolute ownership of the room allotted to her. It is the evidence that she was merely granted the use of the room. In Olorunfemi Vs Asho supra [(2000) 2 NWLR (643) 143] the Supreme Court held that a member of the family may be granted or allotee (sic) a portion of family property for limited or occupational use but the allottee does not become an absolute owner of the portion allotted to him no matter the period of use.
Here Sunday Ige is a beneficiary of an allotment in that the property at No. 113 Oba Adesida Road has not been partitioned.
He therefore has no power to dispose of the shops allotted to him through Madam Fayiobi. Whatever transaction he made on the shops which is different from or inconsistent with the terms of the allotment is null and void, At the time Sunday Ige sold the shops to the defendant, he has no power to do so because the shops did not belong to him absolutely. He, Sunday Ige should have been guided by the maxim ”Nemo dat quod non habet” meaning you cannot give out something that does not belong to you.
… Even if the shops belonged to the father of Sunday Ige like he shop when there were some other stakeholders in the property in the person of Usiola an aunt of his? In her evidence, DW2 the mother of Sunday Ige the vendor admitted that if her husband was entitled to any benefit of Madam Fayiobi, Usiola should be equally entitled. But here the transaction was carried out without the knowledge of Usiola.”
His Lordship concluded thus:
”The effect of all these is that the sale of the two shops by Sunday to the defendant was a sham. The vendor had no power to dispose of the shops he not being the owner. The defendant on his part has only succeeded in purchasing a law suit which suit he is bound to lose.”
It is not the function of an appellate court to substitute its own views of the evidence for those found by the trial court. Thus where the trial court has properly taken advantage of the opportunity of seeing and hearing the witnesses, an appellate court would not interfere with its findings unless it is shown that the findings are perverse or are not supported by the evidence. See: Oshe Vs Okin Biscuits Ltd. (2010) 11 NWLR (1206) 482 at 493 D – E; Okoye Vs Ejiefo (1934) 2 WACA 130; Odofin Vs Ayoola (1984) 11 SC 72.
In the instant case I am satisfied having taken the pleadings of the parties and the evidence adduced thereon into consideration that the findings of the learned trial Judge are fully supported. The appellant was unable to satisfy the court below as to how the permission granted to Madam Fayiobi to use one of the rooms in the property in dispute during her lifetime, which was extended to her son, Ige Ogini due to his blindness metamorphosed into absolute ownership by Sunday Ige. I agree with the learned trial judge that the respondent established his case on a preponderance of evidence. This issue is accordingly resolved against the appellant.
In conclusion, I find no merit in this appeal. It is hereby dismissed.
The judgment of the High Court of Ondo State, Akure Judicial Division in Suit No. AK/96/2004 delivered on 22/4/08 per Hon. Justice Oluwole Fagbe, J is hereby affirmed.
Costs of N50, 000.00 are awarded in favour of the respondent.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the judgment. The learned trial judge who had the opportunity of seeing and listening to the witnesses came to the right conclusion that the appellant failed to prove the root of title of his vendor Sunday Ige who was merely in occupation of un-partitioned family property that came into his possession through Madam Fayobi, the sister of the original allottee. He had no power to dispose of the shops. As found by the learned trial judge, the appellant did not make enquiry from the right quarters as to the authority or power of Sunday Ige to dispose of the property. The appeal lacks merit. I too also dismiss the appeal. I abide by the consequential orders in the lead judgment including the order as to costs.
MOORE A.A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, KERERE-EKUN, JCA. I completely agree with His Lordship that this appeal lacks merit.
The respondent who did not file any cross appeal or a respondent’s notice ought to have confined himself to the grounds of appeal filed by the appellant in the formulation of his issues for determination. Issue 2 formulated by the respondent does not flow from the grounds of appeal filed by the appellant. It is settled law that an issue not covered by a ground or grounds of appeal is incompetent and should be ignored see OGBE V. ASADE (2009) 18 NWLR (Pt.1172) 106 at 124.
For the well-articulated reasons in the lead judgment, I also dismiss this appeal.
I abide by the orders in the leading judgment, including the order for costs.
Appearances
C.S.O. TITILOYE ESQ. with MRS. O.C. GBADEBOFor Appellant
AND
S.L. ONIPEDE ESQ.For Respondent
