SOLOMON ECHANOMI v. MRS PHILOMENA G. OKOTIE & ORS.
(2011)LCN/4443(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of April, 2011
CA/B/247/2009
RATIO
OWNERSHIP OF LAND: WAYS OF PROVING OR ESTABLISHING TITLE TO OR OWNERSHIP OF LAND; WHETHER ESTABLISHMENT OF ONE OF THE WAYS OF PROVING TITLE TO LAND IS SUFFICIENT PROOF OF OWNERSHIP
…there are five ways of proving or establishing title to or ownership of land. These five ways are as follows: (a) By traditional evidence; (b) By production of documents of title duly authenticated in the sense that their due execution must be proved; (c) By positive acts of ownership extending over a sufficient length of time; (d) By acts of long possession and enjoyment of the land; (e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owners of the land in dispute. see Idundun vs. Okumagha (1976) 9-10 sc 227; Ayoola vs. Odolin (1984) 11 SC 120; Ewo vs. Ani (2004) 17 NSC2R 36; Ndukuba vs. Izundu (2009) 1 NWLR (Pt.1016) 432; Adanyi vs. Anwuse (2006) 12 NWLR (pt.993) 183. Again, the law is that the establishment of any of the above five ways is sufficient proof of ownership. see Ewo vs. Ani (2004) 17 NSCQR 36; Ayoola vs. Odofin (supra).” Per SANUSI J.C.A.(P. 14, paras. A-F) (…read in context) PER AMIRU SANUSI J.C.A.
DECLARATION OF TITLE TO LAND: BURDEN PLACED ON THE PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant” (underlining supplied) See also Adewuji vs. Odukwe (2005) All FWLR (Pt.278) 1100 @ 1112-1113 where the plaintiff in that case also relied on purchase receipts and NOT registered instrument among others for declaration of title and had succeeded too. See also Tragumma vs. RSHPDA (2003) FWLR (pt. 169) 1233. PER AMIRU SANUSI J.C.A.
EQUITABLE INTEREST IN LAND: WHETHER EQUITABLE INTEREST WILL BE CREATED WHERE LAND IS SOLD UNDER NATIVE LAW AND CUSTOM OR MERELY SOLD, BUT WITHOUT EXECUTION OF FORMAL DEED AND THE PURCHASER IS PUT IN POSSESSION
It is also settled law that where land is sold under native law and custom or merely sold, but without execution of formal deed and the purchaser is in possession for a long time the equitable intent has been created which in my view cannot be supercede by a subsequent legal estate. It therefore matures as a legal estate. See Aminu vs. Ogunyebi (2004) All FWLR (Pt.221) 1528. PER AMIRU SANUSI J.C.A.
POSSESSION: POSITION OF THE LAW WHERE TWO PERSONS CLAIM TO BE IN POSSESSION OR TO BE OWNERS OF LAND AT THE SAME TIME
Where two persons claim to be in possession or to be owners of land at the same time, the law ascribes possession to one with better title. This is because there can not be such thing as concurrent possession by two persons claiming adversely to each other. See Awoyorlu vs. Aro (2006) 4 NWLR (pt.171) 481; Olukoya vs. Ashero (2006) All FWLR (pt. 322) I499. PER AMIRU SANUSI J.C.A.
Before Their Lordships
AMIRU SANUSIJustice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMIJustice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
Between
SOLOMON ECHANOMI
(Trading in the name & style of Solo Motors Clinic)Appellant(s)
AND
1. MRS PHILOMENA G. OKOTIE
(Nee Edevbie) Legal Representative of late Kess Moses Edevbie substituted by an order of Court dated 20/11/2006.
2. TOLOERE PROPERTIES LTD.
3. J. T. OBADA
4. PETER EDEHA
5. MR. PETER EDEHARespondent(s)
AMIRU SANUSI J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Delta State High Court of Justice (hereinafter referred to as “the lower court”) delivered on 4th of May, 2009 in two consolidated suits Nos. UHC/115/2004 and UHC/19/2005. At the lower court, the appellant herein as plaintiff, instituted the first suit against the defendants, herein identified as the first set of respondents claiming the underlisted reliefs:-
“1. A DECLARATION that the plaintiff is entitled to the conveyance of ALL THAT piece of or parcel of land measuring approximately by 100ft by 50ft lying and situate and being at or known as No.181 Ughelli/Patani Road, Ughelli, Delta State of Nigeria within the jurisdiction of this court.
2. A DECLARATION that any purported sale, transfer, assignment or alienation to any person or persons of the aforesaid piece or parcel of land is null, void and of no effect whatsoever.
3. AN ORDER OF SPECIFIC PERFORMANCE compelling the 1st defendant to complete the sale alienation and/or conveyance of ALL THAT piece or parcel of land measuring approximately 100ft by 50ft lying situate and being at or known as No. 181, Ughelli/Patani Road, Ughelli, Delta State of Nigeria within the jurisdiction of this Honourable court in pursuance to the agreement of the sale of the land between the 1st Defendant’s father in respect of which the plaintiff has performed part and commenced development of same and currently in exclusive possession.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st – 4th Defendants, their agents, servants, privies or any person however (sic) from interfering in any way with the plaintiff’s exclusive possession of ALL THAT piece or parcel of land lying situate and being at and known as No. 181 Ughelli/Patani Road, Ughelli within the jurisdiction of this Honourable Court.”
in the second suit No.UHC/19/2005, the 4th respondent herein, PETER EDEHA sued the defendant who is the appellant herein claiming the under mentioned reliefs:-
‘WHEREFORE the plaintiff claims against the defendants is as follows:-
(a) A declaration of title to the piece or parcel of land and/or premises known as and/or called OKPARURHIE land measuring approximately 100ft by 50ft lying, situate and being at No.181, Ughelli/Patani Road, Ughelli, Delta State of Nigeria a place within the jurisdiction of this Honourable Court.
(b) A declaration that the plaintiffs has a better title to that piece or parcel of land and or premises known as and/or called OKPARURHIE land measuring approximately 100ft by 50ft lying, situate and being at No.18l, Ughelli/Patani Road, Ughelli and he is the person entitled to possession of same as against the defendant.
(c) An order ejecting the defendant his agents and/or Servants or any person howsoever described from the said piece or parcel of land and/or premises described above.
(d) An order compelling the defendant to pay the sum of N5,000,00 (five thousand Naira) monthly as monies (sic) profit for unlawfully remaining in the said piece or parcel of land and/or premises until the final determination of suit or alternatively the sum of N1,000,000.00 (one million Naira) as general damages.
(e) An order or perpetual injunction restraining the defendant, its agents, servants and privies from interfering with the plaintiff enjoyment of the land in dispute.”
Pleadings were ordered, filed, amended and exchanged and the lower court as I said earlier, consolidated the two suits. At the conclusion of the proceedings the learned trial judge dismissed all the reliefs sought by the appellant herein and found in favour of the 4th respondent herein PETER O. EDEHA as follows:
“In suit No. UHC/19/2005:
Mr. Peter O. Edeha vs. Solomon Echanomi – I enter judgment for the plaintiff therein Mr. peter o. Edeha in the following terms:
(1) Declaration of title to that piece or parcel of land measuring approximately 100ft by 50ft lying, situate and being at No.181, Ughelli/Patani Road, Ughelli, presently being occupied by Solomon Echanomi the defendant within the jurisdiction of this Honourable Court.,
Aggrieved by the above finding of the lower court, the appellant appealed to this court and to that effect, filed a notice of appeal containing four grounds of appeal out of which he formulated one issue for the determination of the appeal in his brief of argument as follows:
“Whether or not better title can be ascribed to a plaintiff who did not prove his title under any of the five methods of proving title as enunciated in Idundun vs. Okumagba as to entitle him to a Declaration of title.”
The respondent in his brief of argument also proposed one issue for determination of the appeal as below:
“Whether having regard to the evidence and circumstances of this case, the trial court was right in awarding title to the plaintiff in Suit No.UHC/19/2005.”
A close scrutiny of the sole issue proposed by each of the two parties, leaves me in no doubt that they are more or less the same or similar except of course the different way they were couched. I shall however in approaching the appeal be guided by the issue formulated in the appellant’s brief, simply in view of the elaborate way it was framed.
In his brief of argument, the learned appellant’s counsel submitted that for a plaintiff to obtain declaration of title to land he must prove that he came to possess title to such land through any of the five methods enunciated in the case of Idundun vs. Okumagba (1976) NMLR 200 @ 211. See also piano vs. Tonalo & Ors (1976) 12 SC 31. The learned counsel went further to list the five methods through one of which a plaintiff might have obtained such title. It was also submitted by the learned counsel for the appellant that the plaintiff in Suit No. UHC/19/2005 as 4th defendant in the consolidated suit, testified at the lower court that he entered into an agreement with late Mr. Kess Moses Edevbie as per Exhibit F. He said that the said exhibit relied upon by the said 4th defendant now respondent was unregistered and therefore in the eyes of law, is not more than a receipt of payment of money and not a document of title. He cited and relied on the cases of Romane v. Romane (1992) 4 NWLR (pt. 238) 650; Abu vs. Kuyambana (2001) FWLR (Pt.70) 1520 @ 1523. He submitted that the plaintiff in suit No.UHC/19/2005 failed to prove better title. He finally urged that his appeal be allowed and also prayed that the judgment of the lower court be set aside. In his response, the learned counsel for the respondent submitted that the learned trial judge was correct in his finding that the 4th defendant had proved better title to the land in dispute and also awarding title to the land to his client, the 4th defendant. He also submitted that there was ample evidence led to show that the Kess Moses Edevbie, the original owner of the land in dispute, sold the land to the 4th defendant now 4th respondent and that the appellant herein, was aware of the said sale transaction and also that the 4th respondent was even introduced to the appellant by Kess Moses Edevbie as the new owner of the land. He argued that it was because the appellant was aware of the sale agreement that was why he included Relief No. 2 as part of his claim in his suit.
In a further submission, the learned respondent’s counsel argued that the original title holder of the land in dispute had acquired the land in dispute through customary law in 1978 and in 1996 Exhibit E was made as evidence of the 1978 sale. He said also that evidence abounds that after the sale agreement, Kess Moses Edevbie introduced the buyer i.e. 4th defendant/respondent to the appellant in the presence of witnesses since he (the appellant) was a tenant of the vendor and the appellant was later asked to vacate the land. He also submitted that, in law the plaintiffs occupation of the land as tenant could not take away possession from the landlord. See Anyabunsi vs. Ugwunze (1995) 6 NWLR (pt. 407) 255 @ 268; Raphael Udee & Ors vs. Paul Chide & ors (1990) 1 SCNJ 104 @ 120/121. He said the legal presumption is that person having title to land is in possession. See Amebic vs Otukoya (1978) 4 SC 33 @ 55; Etayata vs. Otogbo (2007) All FWLR (Pt.386) 554 @ 628/629. The learned respondent’s counsel further argued that in claim of title to land, the court is concerned only with the relative strength of the title proved by the rival claimant. See Adeagbo vs. Williams (1998) 2 NWLR (pt.536) 120 @ 127.
Again, the learned respondent’s counsel argued that the total dimension of the land situate at No. 181 Ughelli/Patani Road sold to the 4th respondent by Kess Moses Edevbie was 100ft by 100ft and the appellant was renting one half of it, while DW1 was renting the other half. Thus, being the undisputed owner of the adjacent portion occupied on rent by DW1, then there is the presumption in law that 4th defendant/respondent is also the owner of the portion occupied by the appellant herein. Hence he can also rely on proof of possession of connected or adjacent land. See Iragumina vs. RSHPDA (2003) FWLR (pt. 169) I233 @ 1243 para B-C; Adewuyi vs. Odakwe (2005) All FWLR (pt.278) 1100 @ 1112/1113.
On the issue of receipt for purchase of land, he referred to cases of Aminu vs. Ogunjobi (2004) All FWLR (pt.221) 15282; Aymila vs. Sijunwole (1984) 1 SCNLR 310. He said in this case the law ascribed possession to the 4th defendant/respondent who had proved that the land was sold to him. See Olukoya vs. Ashiru (2006) All FWLR (pt. 322) 1479 @ 1510. He finally submitted that the trial court rightly awarded title to the 4th defendant who had proved the sale of the land to him by the original owner Kess Moses Edevbie. He urged us to dismiss the appeal as it is lacking in merit.
Perhaps it will be pertinent to briefly summarise the facts of the cases of the parties before the lower court as gleaned from the record of appeal. This will assist in the determination of the appeal as canvassed by learned counsel to the parties.
The appellant herein, who was regarded as the plaintiff in the consolidated case by the lower court gave detailed testimony on how he came into possession of the land in dispute which he contended originally belonged to the father of the first defendant (now 1st respondent) one Mr. Kess Moses Edevbie now late in 1996. According to him, he was a tenant of late Kess Edevbie paying a yearly rent of N12,000.00 which said rent was later in 1998 increased to N14,000.00 till October 2003 when he entered into a contract for the sale of the piece of land at a cost of N800,000.00. He said he made part payment of N30,000.00 to late Kess Edevbie and the latter even permitted him to develop the land by erecting wall fence round the land in dispute, sand filled it and to also build his mechanic workshop. He called a witness who testified that he was present when he (plaintiff) made part payment of N30,000.00 out of the N800,000.00 cost price of the land in dispute.
On the other hand, the 4th defendant at the lower court now 4th respondent testified on how he purchased the entire premises known as No. 181, Ughelli/Patani Road, Ughelli measuring 100ft by 100ft which covered the present land in dispute from late Kess Moses Edevbie for the sum of N1,600,000.00 (one million, six hundred thousand Naira only). According to him, the sale transaction took place in March, 2004. It is his case that 3rd defendant was commissioned by late Kess Edevbie to look for a buyer on his behalf for the entire parcel of land including the land in dispute adding that the 3rd defendant approached him and he ultimately bought the entire premises at N1.6m and paid the entire sum through a Bank draft after which they executed and signed a sale agreement witnessed by DW3 the vendor on behalf of the 4th defendant/respondent who he later employed to manage the property on his behalf. He also testified that immediately after the sale transaction was concluded, the seller of the land came to him and confirmed to both himself and the plaintiff/appellant (the tenant in part of the premises) that he had sold the land to him, (the 4th defendant/respondent) and that further rents should be paid to the 4th defendant as the new owner of the land. He called another witness who told the court that he witnessed the sale transaction and had even signed the sale agreement as witness for late Kess Moses Edevbie.
As rightly conceded by the learned counsel to the parties and it is even settled law, there are five ways of proving or establishing title to or ownership of land. These five ways are as follows:
(a) By traditional evidence;
(b) By production of documents of title duly authenticated in the sense that their due execution must be proved;
(c) By positive acts of ownership extending over a sufficient length of time;
(d) By acts of long possession and enjoyment of the land;
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owners of the land in dispute.
see Idundun vs. Okumagha (1976) 9-10 sc 227; Ayoola vs. Odolin (1984) 11 SC 120; Ewo vs. Ani (2004) 17 NSC2R 36; Ndukuba vs. Izundu (2009) 1 NWLR (Pt.1016) 432; Adanyi vs. Anwuse (2006) 12 NWLR (pt.993) 183. Again, the law is that the establishment of any of the above five ways is sufficient proof of ownership. see Ewo vs. Ani (2004) 17 NSCQR 36; Ayoola vs. Odofin (supra).
In the instant case, there is no iota of doubt that the land in dispute is in possession of the plaintiff in the consolidated suit, now appellant herein. To my mind, however, possession in law follows the right to possess. It is not enough to possess. Also it is not enough that a claimant is able to show that he has been in possess for the requisite number of years. The burden on him is higher than that as he has to show something more. As a claimant of the land, the plaintiff/appellant in this appeal, he has to prove to the satisfaction of the court that the title holder of the land, in this case the 4th respondent has become owner of the land but was dispossessed of his possession. See Majekodunmi vs. Abuna (2002) 3 NWLR (pt.755) 720.
In the instant case credible evidence abounds that the 4th respondent purchased the land from late Kess Moses Edevbie, the father of the 1st defendant/respondent at a cost of N1,600,000.00 and duly paid for same and was issued with purchase receipt. On the other hand, the appellant merely claimed that he made part payment of N30,000.00 out of the alleged N800,000.00 he alleged he purchased it. Similarly, evidence was led by 4th respondent to the effect that the original owner of the land late Kess Moses Edevbie after selling the land in dispute to the 4th respondent also introduced the appellant to the 4th respondent as his new tenant which he so remained. Therefore the 4th respondent became the appellants landlord.
As landlord, the 4th respondent can be said to be in legal possession of the land even if he never set his foot on it and he remained in de jure possession which entails animo possidendi, whereas the appellant has de facto possession which is mere occupation. See Enikwu vs. (Ikechukwu (2004) 17 NWLR (Pt. 902) 277. The 4th respondent therefore has exclusive possession and the law always protects exclusive possession and not otherwise. See Ajefo vs. Ugorji (1999) 10 NWLR (Pt. 621) 1; Olisa vs. Asojo (2002) 7 NWLR (Pt. 747) 13; Oyadare vs. Keji (2005) 7 NWLR (Pt.925) 571. It is evident as I said earlier, that the 4th respondent purchased the land in dispute plus the portion of land occupied on rent by one Blessing Onoberhue (DW1) and the latter testified also that late Kess Moses Edevbie introduced the 4th defendant/respondent to her and the plaintiff/appellant as their new landlord. Blessing Onoberhue is the tenant of the other half of Kess Moses Edevbie’s land not in dispute. By her testimony which is of a person occupying the adjacent land which said evidence was not challenged, it can be said to be another way of establishing ownership of the land in dispute by the 4th respondent as stated above.
The appellant also raised dust on the non-registration of the title document by the 4th respondent and his reliance merely on purchase receipt. With due deference to the learned appellant’s counsel, that stance of his is of no moment, as the Supreme Court in the case of Kaiyaole vs. Edumle (1974) 12 SC 55 and this to say on page 61:
This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant” (underlining supplied)
See also Adewuji vs. Odukwe (2005) All FWLR (Pt.278) 1100 @ 1112-1113 where the plaintiff in that case also relied on purchase receipts and NOT registered instrument among others for declaration of title and had succeeded too. See also Tragumma vs. RSHPDA (2003) FWLR (pt. 169) 1233.
It is also settled law that where land is sold under native law and custom or merely sold, but without execution of formal deed and the purchaser is in possession for a long time the equitable interest has been created which in my view cannot be superceded by a subsequent legal estate. It therefore matures as a legal estate. See Aminu vs. Ogunyebi (2004) All FWLR (Pt.221) 1528.
It is noted by me, that in the case at hand both the appellant herein as plaintiff in the consolidated suit and the 4th respondent herein as defendant at the lower court claimed the ownership of the land in dispute.Where two persons claim to be in possession or to be owners of land at the same time, the law ascribes possession to one with better title. This is because there can not be such thing as concurrent possession by two persons claiming adversely to each other. See Awoyorlu vs. Aro (2006) 4 NWLR (pt.171) 481; Olukoya vs. Ashero (2006) All FWLR (pt. 322) I499
In this instant case, the 4th respondent as rightly found by the learned trial judge sufficiently proved that the land in dispute was sold to him by late Mr. Kess Moses Edevbie. The 4th respondent had proved in more than one out of the five ways of proof title how he genuinely owned the land in dispute. He, for instance, produced Exhibit F, the purchase receipt and had also led evidence that he was introduced to the appellant as the new owner of the disputed land by late Kess Moses Edevbie and also the evidence of the occupant of the adjacent land. All these went a long way in establishing that he was in exclusive possession and that the plaintiff, now appellant, was simply a tenant. He did not produce any valid and reliable title document at the lower court to even establish that he bought the land in dispute from the original owner or his offspring unlike the 4th respondent who proved that he fully paid for the land through a Bank draft. There is also no evidence adduced suggesting that any body claimed ownership of the land in dispute. The law always attaches weight on possession to title even where such possession is doubtful or equivocal.
Thus, placed on the imaginary scale the two evidence adduced by both parties by the lower court, I am in agreement with the conclusion of the trial court that such evidence tilts in favour of the 4th defendant/respondent and against that produced by the appellant and that the former proved better title before it than the appellant herein and I accordingly so hold.
In the result, it is my judgment that the appeal is devoid of any merit. It therefore fails and is accordingly dismissed. The judgment of the lower court delivered on 4th May, 2009 granting the first relief is hereby affirmed by me. N30,000.00 costs awarded to the 4th respondent only against the appellant herein.
GEORGE OLADEINDE SHOREMI, J.C.A. I have read in draft the judgment delivered by my brother Amiru Sanusi JCA. I am in full agreement that by any yardstick of proof the 4th Respondent had a better title to the land in dispute. The case of the Appellant is so weak that no reasonable tribunal will give judgment in his favour. Credible evidence is in favour of the 4th Respondent. For the same reasons adduced in the judgment, I also hold that the appeal is unmeritorious and liable to be dismissed and it is hereby dismissed. Cost of N30,000 is awarded to the 4th Respondent.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother AMIRU SANUSI JCA. I agree that the appeal is devoid of merit and I have no hesitation in also dismissing same.
There is no justification in disturbing the finding of the trial Judge as he meticulously evaluated the evidence before him and found that the 4th Respondent sufficiently proved that the land in dispute was sold to him by Late Mr. Kess Moses Edevbie. The said 4th Respondent proved that the land in dispute was his. He produced among other documents Exhibit F, the purchase receipt and went further to show that his mode of payment was through a Bank Draft. The Appellant failed woefully to prove title to the land as he did not produce any valid or relevant document. This appeal fails and is hereby dismissed. The Judgment of the court below is affirmed. I also abide by the order as to costs fixed at N30,000 to the 4th Respondent.
Appearances
E. T. Negbenebor Esq.For Appellant
AND
Irikefe Ovwighorienta Esq.For Respondent
