SUNDAY AKHIGBE v. MICHAEL ENAGBONMUNA
(2019)LCN/12565(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/B/351/2014
RATIO
COURT AND PROCEDURE: WHETHER THR TRIAL COURT CAN RAISE ISSUES FOR PARTIES
“Firstly, it is trite principle of law that a Court shall strictly stick to the evidence presented to it by the parties and should not make a case for them outside that presented to it for jurisdiction. In other words, a trial Judge cannot raise issues for parties if those issues do not flow from their pleadings. See ATOLAGBE VS SHORUN (1985) 1 NWLR (PT. 2) 360; IBANGA VS USANGA (1982) SC 103. It is indeed improper for a Court to embark on the consideration of issues not raised before it and which were not addressed by the parties during trial. See OKERE VS AMADI (2005) 14 NWLR (PT. 945) 545; KATTO VS CBN (1991) LPELR 1678 (SC); EZOMO VS OYAKHIRE (1985) 2 SC 260. To raise an issue suo motu and without inviting the attention of counsel for the parties to address it on the points so raised and then proceed to decide the matter on such issue so raised suo motu by the Court cannot therefore be acceptable in the circumstance. See OKERE VS AMADI supra.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
LAND LAW: CLAIM OF DECLARATION OF TITLE
“What is more, it is settled law that in a claim for declaration of title to land, a plaintiff has the burden of proving his case upon his own cogent and credible evidence and cannot rely on the weakness of the defendant?s case. In other words, the onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. He must rely on the strength of his own case and not on the weakness of that of the defendant. See OHAERI & ANOR VS AKABEZE & ORS (1992) 2 SCNJ 76; EYO VS ONUOHA & ANOR (2011) 2-3 SC (PT. 1) 220; EDOSOMWAN VS OGBEYFUN (1996) 4 SCNJ 20.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
SUNDAY AKHIGBE Appellant(s)
AND
MICHAEL ENAGBONMUNA Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
The Respondent herein had by a writ of Summons filed on the 22nd day of August 2001 commenced an action against the Defendant (now Appellant) and in his further amended statement of claim as contained in pages 10 to 13 of the Record of Appeal, he claimed the following three reliefs against the Appellant:-
1. A declaration that the piece or parcel of land measuring 100ft x 100ft better known as Plot 3, Omokaro Street, Ogbeson Quarters near NNPC Depot Ward 40/A, Benin City within the jurisdiction of this Honourable Court is the bona fide property of the plaintiff and he is entitled to the issuance of a Certificate of Occupancy in respect of the landed property. The land is known to both parties.
2. Perpetual injunction restraining the Defendant, his work men, agent, privies, henchmen and assigns from further trespassing unto the said landed property.
3. One Million Naira special and general damages against the Defendant for trespass and unlawfully breaking into plaintiff’s land and erecting building foundation and wall on the Plaintiff?s land in Ogbeson village, WARD 40/A, Benin City.
At the trial, the Respondent testified and called one other witness. Some documents were also tendered and admitted in evidence. The Appellant in his defence testified and called two other witnesses. He also tendered some documents.
At the conclusion of trial and address by counsel for the parties, judgment was delivered on the 29th day of October 2013 wherein the learned trial Judge held as follows:-
“I hereby come to the conclusion that on balance of probabilities, the claimant has proved his case and he is entitled to succeed in this action, his claims are hereby allowed.”
The Appellant was aggrieved with the outcome of the judgment and consequently filed a notice of appeal on 1/11/2013.
Briefs of argument were subsequently filed and served by the parties who adopted and relied on same at the hearing of the Appeal on 14/11/2018.
In the Appellant’s brief of argument filed on 22/9/2014, the following three issues were formulated for determination:-
1. Whether back dating and misrepresentation of facts (i.e. forgery) was pleaded, particularised and proved beyond reasonable doubt by evidence of the claimant to warrant the Honourable trial Judge to arrive at the conclusion that Exhibit ‘D’ tendered by the Defendant (now Appellant) was back dated (forged) upon which he based his judgment.
2. Whether the Honourable trial Judge did not make a case different from the parties’ case.
3. Whether the doctrine of priority does not apply in this case and in favour of the Defendant/Appellant who has earlier title to the land.
The Respondent’s brief of argument was filed on 12/2/2018 and the following 2 issues were distilled therein for determination:-
1. Whether there is any ground from the records to impugn the judgment of the Court below?
2. Whether an appellant who neither pleaded nor called evidence to establish that he complied with Benin Customary Law and Practice of acquiring valid title in Benin can set aside on appeal the judgment of the lower Court on that issue?
The Appellant also filed a reply brief of argument on 11/5/2018.
The two issues raised in the Respondent’s brief of argument are well covered in the Appellant’s issues 1 and 3.
I will therefore adopt the issues as formulated by the Appellant in the resolution of this appeal.
ISSUE 1
Dwelling on these issues, learned counsel for the Appellant submitted that the issue of backdating or misrepresentation of facts (i.e. forgery) upon which the learned trial Judge based his judgment was not raised by the claimant in his pleadings. He added that it is not competent for a Court to suo motu make a case for either of the parties and then proceed to give judgment pursuant thereto because it will amount to a denial of fair hearing as held in the case of NIGERIA PORTS PLC VS DUNCAN MARITIME VENTURES (NIG) LTD (2013) ALL FWLR (PT. 670) 1293.
It was further submitted that back dating or misrepresentation of facts as stated by the learned trial Judge in his judgment connotes forgery and the law is that where the commission of crime is alleged in a civil matter, it must be pleaded, particularised and proved beyond reasonable doubt. He cited the case of ISIAQ VS SONIYI (2009) ALL FWLR (PT. 498) 347.
He also contended that the finding of the learned trial Judge that the sale of the land in dispute to the Respondent in 1978 was first in time before sale to the Defendant who merely back dated Exhibit ‘D’ to misrepresent facts is a mere speculation because the issue of forgery or back dating of document was not raised by the Respondent.
He added that issue not raised in evidence cannot be joined and no decision can be reached thereon, therefore the trial Court erred by making a finding on the issue of back dating and misrepresentation. He relied on the case of ODIARI VS ODIARI (2009) ALL FWLR (PT. 489) 510.
ISSUE 2
Herein, learned counsel submitted that the learned trial Judge made a case different from that of the parties. He added that the parties having derived their title to the disputed land from the same vendor, it is the duty of the Judge to carry out a dispassionate assessment of the parties’ evidence, but in this case, he failed to do so. He cited the case of ONISESE VS OYELEYE (2008) ALL FWLR (PT. 446) 1826.
Also relying on the of AGBI VS OGBEH (2006) ALL FWLR (PT. 329) 941 and Section 167 (d) of the Evidence Act, 2011, it was submitted that the failure by the Respondent/claimant to call Chief Ediagbonya and Joy Ogholor from whom he claimed to have bought the land is fatal to his case because evidence which could be produced and is not, would be deemed to be unfavourable to the party who withheld it.
ISSUE 3
Learned counsel herein submitted that the learned trial Judge erred in law by failure to consider the doctrine of priority before reaching his conclusion. This is so because, while both parties at the trial tendered Exhibits A2 and C respectively which are the Oba’s approval given in favour of their common vendor on the same 28/4/73. But that the Appellant’s Deed of transfer dated 16/4/76 precedes that of the Respondent dated 11/6/78. It was further contended that given the scenario presented showing that both parties derived their root of title from a common vendor, Chief Ediagbonya, the trial Judge would have resolved the issue of who has a better title by addressing the fact that the Respondent who is the claimant ought to have called their common vendor to give evidence.
Also citing the case of ADIKE VS OBIARERI (2002) FWLR (PT. 131) 1907, it was submitted that where two purchasers derive their title from a common vendor, it is the first in time that gets a better title because after the first sale there would be nothing left for the vendor to sell and in this case, the Appellant bought on 16/4/76 while the Respondent bought on 11/6/78. In this regard, the doctrine of priorities enures in favour of the Appellant whose Deed of transfer precedes that of the Respondent’s moreso that the Appellant has been in possession of the land for over 25 years before the Respondent challenged him in 2001.
It was then urged on this Court to resolve the issues in favour of the Appellant and allow the Appeal.
Replying on their own issue 1, learned counsel for the Respondent submitted that the learned trial Judge duly considered all the facts in the issue and came to a well considered judgment.
Reference was then made to the facts as averred to in paragraphs 9 to 30 of the Respondent’s further amended statement of claim and his evidence at the trial justify the case ending in his favour.
On the other hand, it was submitted that the Appellant did not tender any valid Deed of transfer during the trial and the only document he tendered in evidence and admitted as Exhibit D was a copy of the Oba’s approval which on its own cannot transfer title to land. He added that the evidence of DW2 was unreliable and discredited during cross examination.
Also relying on the case of OYENEYIN VS AKINKUGBE , learned counsel submitted that mere production of a title Deed is not enough to succeed in a land dispute in Benin Kingdom and its environs.
On the Appellant’s contention that forgery and misrepresentation was not in issue at the trial Court and neither was it pleaded or particularised, learned counsel referred to paragraphs 22 to 28 of the further amended statement of claim and which averments therein were not denied by the Appellant and this amounts to an admission, vide UWAJEH VS UWAJEH (2009) ALL FWLR (PT. 458) 287.
It was further argued that the finding by the learned trial Judge that Appellant’s Deed of transfer was back dated and/or forged is a normal conclusion that a Court could reach in a matter and as such the Respondent need not plead same.
As against the Appellant, the Respondent listed the following shortcomings in his case:-
1. That the Appellant did not claim that he was in possession.
2. Takes steps to perfect his title by paying for the economic trees/crops.
3. Appellant did not uproot economic trees.
4. Did not complain when the Respondent lied.
5. Appellant met the Respondent in actual and constructive possession of the landed property and was warned by neighbours, especially PW1 to hands off the land because the land is not free of encumbrance but the Appellant did not heed the warning.
6. When the Respondent challenged the Appellant’s act of trespass on the land, the Appellant refused to follow the Respondent to their common transferor who was then alive and never went to him on his own to resolve the issue.
Consequently, learned counsel submitted that the proper conclusion to be reached is that the Appellant either forged his Deed of transfer or back dated it.
He added that, while not conceding that the learned trial Judge erred in holding that the Deed of transfer was either forged or back dated, it is trite that even if there was an error, it is not every error of law that will lead to a reversal of a decision. He cited the following cases:- OYEFOLU VS DUROSINMI (2001) 7 NSCQR 77; ODUWOLE VS TAM DAVIDWEST (2010) NSCQR (3); SOLOLA VS THE STATE (2006) 11 NWLR (PT. 992) 669.
On issue 2, learned counsel submitted that the Appellant’s claim that the Order of interlocutory injunction made against the Appellant by the trial Court was subsequently vacated was not correct because the undertaking to pay damages which was fixed at N30,000.00 by the trial Court was duly complied with by the Respondent in which case there was no basis to vacate the said order.
Further relying on the case of REGISTERED TRUSTEES OF APOSTOLIC CHURCH VS IDUBOR (1990) 6 NWLR (PT. 47) 170, it was submitted that once parties to a suit submit themselves to the jurisdiction of the Court, none of them is allowed to resort to self help.
This Court was then urged to dismiss the appeal.
The Appellant filed a reply brief of argument on 11/5/2018.
Therein it was submitted that as at the time the Appellant built and packed into his house there was no order of injunction against him. Besides, the motion for interlocutory injunction filed by the Respondent on 22/8/2001 was struck out for want of prosecution on 23/7/2002.
On the status of Exhibit ‘D’ (Deed of Transfer), it was submitted that the Appellant tendered it as a purchase receipt between him and one Ediagbonya, the vendor of the land in dispute and it was admitted and marked Exhibit D.
On the Respondent’s contention that the Appellant did not comply with the requirement for a proper transfer of title under Benin law because he did not pay for economic crops/trees, it was submitted that the Appellant paid all expenses antecedent to acquire the land as shown in paragraph 14 of the statement of defence. Therefore the case of ATITI GOLD VS BEATRICE OSASEREN cited by the Respondent does not apply to this case. He added that if the necessary expenses were not paid, the Ogbeson Youth Association then would not have allowed the Appellant to build on the land and there is no way he would have lived on the said land for more than 25 years now and this can be attested to by Chief Ediagbonya, their common vendor who is still alive till today, contrary to the claim by the Respondent that he has since died.
It was also contended that the Respondent ought to have called their common vendor Chief Ediagbonya as a witness in order to clear the ambiguities as to who between the parties purchased the land first and since the law is trite that he who asserts must prove, it behoves the Respondent to do so.
Dwelling on the doctrine of priority, it was submitted that it enures in favour of the Appellant who purchased the land vide Exhibit ‘D’ on 16/4/76 as against the Respondent who vide Exhibit A3 purchased the same land on 11/6/78. On this, the case of OLUKOYA VS ASHIRU (2006) FWLR (PT. 322) 1479 was referred to. Therefore the simple issue to be resolved is as between Exhibit D and A3 which is earlier in time and should be given priority over the land in dispute.
I have considered the issues raised in the parties brief of argument and also perused the Record of Appeal as well as the relevant exhibits. I will first deal with the three issues as raised in the Appellant?s brief of argument together, starting with issue 3, that is whether the doctrine of priority does not apply in this case and in favour of the Appellant who has earlier title to the land.
From the pleadings and evidence of the parties, it is not in dispute that they both traced their title to a common vendor.
In other words they both purchased the land in dispute from the same Chief Ediagbonya. The learned trial Judge in this regard held at page 61 of the Record as follows:-
“In the instant case, the onus is on the Claimant to prove by credible evidence on the balance of probabilities that Chief Ediagbonya the vendor or the seller of the land to both parties had previously sold the land in dispute to his (the Claimant’s) predecessor Joy Ogholor before the same seller Chief Ediagbonya sold the land in dispute again to the Defendant which would also mean that Chief Ediagbonya back dated Exhibit D to 1976. If one examines Exhibits A3 and Exhibit D, it will be observed that the original owner of the land Chief Ediagbonya thumb printed or appended his signature to the agreement between him and each of the parties he sold the same land to. This act of his is the genesis of this problem.”
The question then is, who between the parties will be deemed to have a better title to the land given that they both tendered Deeds of transfer signed by the same vendor as receipt of purchase of the said land and which in that regard creates equitable interest for both of them.
Addressing this issue in the case of UGBO & ORS VS ABURIME (1994) LPELR 3314 (SC) the Supreme Court per Iguh JSC held at page 30 of the Report that:-
“At law, as in equity, the basic principle is that estates and interests primarily rank in the order of creation. The maxim is ‘Qui Prior est tempore potior est jure’ which literarily means that he who is earlier in time is stronger in law. See Barclays Bank Ltd vs Bird (1954) (Ch 1) 274 at 280. This principle however is applicable where the equities are equal.”
Further at pages 30 to 31, their Lordships addressed the issue with particular reference to the Doctrine of Priority under Bini Customary Law wherein it was held as follows:-
‘The doctrine of priorities under Bini Customary law has however been examined by this Court in a number of cases as OKEAYA-INEH VS AGUEHOR (1970) 1 ALL NLR 1 at 8; AIGBE VS EDOKPOLO (1977) 2 SC 1; AWOYOGBE VS OGBEIDE (1988) 1 NWLR (PT. 73) 695 at 697 ? 701; ARASE VS ARASE (1981) 5 SC 33; ATITI GOLD VS OSASEREN (1970) 1 ALL NLR 132; BELLO VS MAGNUS EWEKA (1981) 1 SC 101 etc.
In AWOYEGBE VS OGBEIDE (supra) Craig JSC in the lead judgment of this Court on the issue of the doctrine of priorities under Bini Customary Law pronounced as follows:-
“When there are competing title to a piece of land, the question to be asked is who has made a better title and not who first obtained the Oba?s approval.”
In his own contribution in the same case, Nnamani JSC after a review of most of the previous decisions on the issue held as follows:-
“Where two allocations have been made by the same Ward Allocation Committee, the first one takes priority. If two separate Plot allotment committees allocate a piece of land, the issue of priority does not arise. One person in the case of such a dispute will not get the title just because he got the approval first.”
See also LAWSON VS AJIBULU (1997) 6 NWLR (PT. 507)14 and ALECHENU VS OSHOKE (2002) 9 NWLR (PT. 773) 5210.
Thus, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other. In other words, where the equities are equal and none of the parties has a legal estate, the first in time prevails. See UGBO VS ABURIME (supra); LABODE VS OTUBU (2001) 7 NWLR (PT. 712) 256; OKOYE VS DUMEZ (NIG) LTD (1985) 1 NWLR (PT. 4) 783.
In the instant case and as per the evidence on record, the Deed of Transfer made between the Appellant and their common vendor, Chief Ediagbonya is dated 16/4/1976, same was admitted in evidence as Exhibit D while another Deed of Transfer between the Respondent?s predecessor in title (Joyce Ogholor) and same Chief Ediagbonya is dated 11/6/1978, same was also admitted in evidence as Exhibit A3.
It follows that the Appellant (ceteris paribus) bought the land in dispute from their common vendor two good years before the same land was sold to Joyce Ogholor and she subsequently transferred same to the Respondent in 1992.
They both led evidence of acts of possession on the land but the encounter that led to the suit in the lower Court took place in 2001 when the Appellant sought to erect a building on the land. Both parties also tendered in evidence the same Oba’s approval granted to their common vendor and dated 28/4/1973 as Exhibit A2 and Exhibit C.
To my mind however and going by the facts above stated and the authorities earlier referred to on the doctrine of priority, the pendulum of priority swinged in favour of the Appellant in the absence of any evidence to the contrary.
However in rejecting the priority interest of the Appellant, the learned trial Judge at page 61 to 62 of the Record stated as follows:-
‘The evidence of the Defendant is that while he the Chief sold to the Claimant’s predecessor in 1978 Exhibit A3 the Chief had already sold the land to the Defendant in April 1976 (Exhibit D) which means Exhibit D is the deed of transfer to be accepted by this Court. It is clear and obvious to me that both the Defendant and his predecessor in title are bent on misrepresenting facts. I believe from the evidence adduced that Chief Ediagbonya first sold the land in dispute to the Claimant’s predecessor in title Joy Ogholor and thumb printed (signed) Exhibit A3 as proof that he transferred his interest in that land to her. He further gave her a photocopy of his Oba’s approval dated 1974 Exhibit A2 (if not, how did these documents come into the hands of the Claimant). I also believe that for back dated Exhibit D.’
If it was true that the Chief actually sold the land to the Defendant before he sold to Joy Ogholor, both Joy and the Claimant would have found signs i.e. the usual signs on the land. Instead, it is in evidence that the person in possession of the land at the time Joy Ogholor purchased the land was one Mary (owner of crops) as described in Exhibit B dated 17/7/78. Joy Ogholor paid for the rubber trees and other economic crops she found on the land to one Mary; on the other hand the Defendant who I believe purchased the land after it had been sold to Joy Ogholor did not pay or did not have to pay for any rubber trees because Joy Ogholor had already paid and was issued with Exhibit B as evidence of payment. Therefore I am convinced and satisfied that the sale to the Claimant?s predecessor in title was first in time in 1978 before the subsequent sale to the Defendant by Chief Ediagbonya, who merely backdated Exhibit D to misrepresent facts; and I so hold.”
From the above set out portion of the judgment, the learned trial Judge had in finding in favour of the Respondent held that the Respondent’s predecessor in title (Joyce Ogholor) purchased the land from their common vendor before the Appellant and proceeded to conclude by way of speculation that, after selling the land in dispute to Joyce Ogholor, Chief Ediagbonya sold it again to the Appellant, which means that Chief Ediagbonya backdated Exhibit D to 1976.
I have read through the parties pleadings and evidence and it was nowhere averred as a fact nor proved by evidence that Exhibit D was back dated by the Appellant in concert with Chief Ediagbonya their common vendor. In fact it is nowhere shown that the genuineness or otherwise, of the said Exhibit D was in issue throughout the trial.
Firstly, it is trite principle of law that a Court shall strictly stick to the evidence presented to it by the parties and should not make a case for them outside that presented to it for jurisdiction. In other words, a trial Judge cannot raise issues for parties if those issues do not flow from their pleadings. See ATOLAGBE VS SHORUN (1985) 1 NWLR (PT. 2) 360; IBANGA VS USANGA (1982) SC 103. It is indeed improper for a Court to embark on the consideration of issues not raised before it and which were not addressed by the parties during trial.
See OKERE VS AMADI (2005) 14 NWLR (PT. 945) 545; KATTO VS CBN (1991) LPELR 1678 (SC); EZOMO VS OYAKHIRE (1985) 2 SC 260.
To raise an issue suo motu and without inviting the attention of counsel for the parties to address it on the points so raised and then proceed to decide the matter on such issue so raised suo motu by the Court cannot therefore be acceptable in the circumstance. See OKERE VS AMADI supra.
Further, contrary to the speculative findings and conclusion by the learned trial Judge that going by the manner Exhibits A3 and D were signed, it shows that their common vendor back dated Exhibit D. Speculation has no place in our jurisprudence and neither the Courts or the parties is permitted or entitled to speculate on any issue. See IKENTA BEST (NIG) LTD VS A.G. RIVERS STATE (2008) 6 NWLR (PT. 1084) 612. Speculation means to form an opinion about something without knowing all the details or facts associated therewith. See ARIBO VS CBN & ANOR (2011) 12 NWLR (PT. 1260) 133. Courts are therefore not allowed to speculate or even attempt to make out a case for any of the parties to a suit before it. Decisions must therefore be reached after compelling and convincing evidence as presented by litigants. See IBRAHIM VS C.O.P. (2007) LPELR 3747 (CA).
In the instant case, the learned trial Judge relied on speculation and not hard evidence in reaching decision about the status of Exhibit D and this cannot be allowed to stand.
What is more, it is settled law that in a claim for declaration of title to land, a plaintiff has the burden of proving his case upon his own cogent and credible evidence and cannot rely on the weakness of the defendant?s case. In other words, the onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. He must rely on the strength of his own case and not on the weakness of that of the defendant. See OHAERI & ANOR VS AKABEZE & ORS (1992) 2 SCNJ 76; EYO VS ONUOHA & ANOR (2011) 2-3 SC (PT. 1) 220; EDOSOMWAN VS OGBEYFUN (1996) 4 SCNJ 20.
Now the Respondent in proof of his case had averred in paragraphs 19 to 27 of his further amended statement of claim as follows:-
19. The Plaintiff asserts that only issue will be settled at trial of this case. Whether the said Chief Ediagbonya has at anytime has interest on title to pass on to the Defendant after prior valid transfer to plaintiff through Plaintiff?s transferor.
20. The plaintiff asserts that the Defendant was at all material times fixed with the notice of prior earlier title of plaintiff as he met the plaintiff in actual and constructive possession. Specifically, neighbours pointedly told the Defendant that Chief I Ediagbonya has no title to pass to him after the earlier valid transfer to the plaintiff?s predecessor in title.
21. The plaintiff avers that in his reply the Defendant retorted that ?Chief say they don take am from am?.
22. The plaintiff asserts that when the Defendant disturbed Plaintiff?s labourer in August and Plaintiff reported the matter to the said Chief I Ediagbonya owned up that as a Chief he no longer visits his plots personally that his pointers misled him to sell the land to Defendant as they lied to him that the land was free and unoccupied.
23. The Plaintiff avers that the Chief added that he would make amends by giving the Defendant another piece or parcel of land of similar dimension.
24. The Plaintiff asserts that the Chief added that the plaintiff should come with the Defendant forthwith to enable the Defendant take possession of his new plot.
25. The Plaintiff asserts that he then left a note for the Defendant to meet him at his chambers to arrange to see the Chief together.
26. The Plaintiff stated that the Defendant did honour the invitation and came in company of Barrister F.N.E. Igbinosa a staff of EDPA and two others not known to plaintiff.
27. The Plaintiff stated that when the Chief said that the plaintiff would go with him to ensure that the Chief will honour his word to give Defendant another plot of land, the Defendant declined to go with Plaintiff saying that he was not sure that he the defendant will not be shown another person’s plot of land again. He added that he was not sure the Chief still has a vacant and unoccupied land to give the defendant.
From the above set out averment, the recurring decimal is the name of their common vendor Chief Ediagbonya who from the facts stated therein and evidence at the trial was alive and would have clearly settled the matter as to who bought the land first, but unfortunately the Respondent on whom lies the burden of proof that his interest prevails over that of the Appellant failed in his duty to do so and this ought not to be held against the Appellant because, he who asserts is required by law to prove same.
Strangely enough, the learned trial Judge in finding in favour of the Respondent held at page 63 of the Record as follows:-
‘After a careful consideration of the pleadings and evidence adduced as put forward by each side, I am satisfied on the strength of Exhibits A1 to A3 and Exhibit B (which are considered authentic and genuine) as opposed to Exhibit D which was backdated, and in the light of the aforementioned facts, I humbly come to the conclusion that on the balance of probabilities, the Claimant has proved his case and he is entitled to succeed in this action, his claims are hereby allowed.’
This in my humble view does not accord with the pleadings and evidence before the Court and as such cannot stand.
In the Respondent’s brief of argument, heavy weather was made about the Appellant’s failure to show that he paid for the crops on the land as proof of his title.
Thus at page 8 of the said Respondent’s brief, it was argued thus:-
“Why did the Appellant fail, refused and/or neglected to pay for crops on the land if truly he had an earlier title?
Failure to pay for crops on the land renders title to land null and void. Payment for crops on the land is a procedural requirement towards obtaining Oba?s approval and good title in Benin.”
On this, reliance was placed on the case ofATITI GOLD VS BEATRICE OSASEREN (1971) 1 UILR at 137 -138.
But as rightly observed by learned counsel for the Appellant in paragraph 1.13 of the Appellant’s reply brief, given the principle of law guiding acquisition of title to land under Bini Customary Law as expounded in the case of SAMSON OWIE VS SOLOMON IGHIWI (2005) ALL FWLR (PT. 248) 1762 also cited by the Appellant, it is out of place for the Respondent to dwell on such issue when he himself was not granted approval by the Oba of Benin but to their common vendor just like the Appellant and which common vendor is meant to comply with the Bini Customary Law of acquisition of property. In other words, the Respondent by his contention with regard to payment for crops which incidentally the Appellant through his pleadings and evidence also insisted he complied with merely begged the question because by every standard, it cannot be a fundamental determinant whether the Appellant’s interest in the land precedes that of the Respondent.
On this premise, the three issues are hereby resolved in favour of the Appellant. Accordingly, I hold that this appeal is meritorious and it is hereby allowed.
The judgment of the High Court of Edo State delivered on the 29th day of October, 2013 is hereby set aside.
Parties to bear their costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I adopt the well-reasoned decision of my learned brother as mine and I also allow the appeal.
I abide by all the orders in the leading judgment, including the order as to costs.
Appearances:
P.O. UwayaFor Appellant(s)
Michael Enagbonmuna appeared for himself.For Respondent(s)
