3PLR – JULIUS AKINGBADE AFESOJAIYE V. RACHEAL AFESOJAYE & ANOR

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS – 3PLR

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JULIUS AKINGBADE AFESOJAIYE

V.

RACHEAL AFESOJAYE & ANOR

IN THE COURT OF APPEAL OF NIGERIA

ON WEDNESDAY, THE 11TH DAY OF FEBRUARY, 2015

CA/AK/7/2014

3PLR/2015/76 (CA)

OTHER CITATIONS

(2015) LPELR-24368(CA)

 

BEFORE THEIR LORDSHIPS

MOJEED ADEKUNLE OWOADE, JCA

MOHAMMED AMBI-USI DANJUMA, JCA

JAMES SHEHU ABIRIYI, JCA

 

BETWEEN

JULIUS AKINGBADE AFESOJAIYE – Appellant(s)

AND

  1. RACHEAL AFESOJAYE
  2. BANKOLE AFESOJAYE – Respondent(s)

 

REPRESENTATION

Tunde Adeoye (Esq) – For Appellant

AND

  1. A. Ayesa (Esq) – For Respondent

 

ORIGINATING COURT

High Court Of Ondo, Akure Judicial Division [Hon. Justice C. E. T. AJAMA presiding]

 

OTHER ISSUES

  1. REAL ESTATE AND PROPERTY LAW – LAND DOCTRINE OF LACHES AND ACQUIESCENCE: – Doctrine of laches and acquiescence – When it will operate to estoppels against a claim over land or property
  2. REAL ESTATE AND PROPERTY LAW – LAND DISPUTE:- Ways to prove title to land – Need for court not to be sidetracked with the common practice of referring to the land in dispute with different names or the indication of respective plans of differing features – What is usually in dispute in land matters – need for court to focus on dispute over the ownership of the particular land which is often the crux of the mater – How land dispute is resolved where two parties claim title to the same land through the ascription of title to the party with a better title – need to decide claim on the balance of probability – Effect of an unsatisfactory evidence in a claim for declaration of title to land – When defendant is able to adduce evidence oral or documentary which has the effect of discrediting the plaintiff’s case – Duty of court to refuse plaintiff claim for declaration and to enter judgment for the defendant
  3. CHILDREN AND WOMEN LAW:- Children/Women/Widow and interest in immovable property – Justice Administration and Inheritance rights – Protection/defence of same – Widow and children of deceased person with interest in property – Right over gift of property made inter vivos by deceased husband/father to son against adverse claim by a relative – How treated by court
  4. PRACTICE AND PROCEDURE – EVIDENCE – DOCUMENTARY EVIDENCE: Documentary evidence tendered in Court – Whether any oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded
  5. PRACTICE AND PROCEDURE – EVIDENCE – EVALUATION OF EVIDENCE: – Trial court – Unique privilege of seeing, hearing and observing the mien of witnesses testifying – Primary function of the Trial Court in appraising and ascribing probative value to the evidence presented by parties, put the evidence on the imaginary scale of Justice to determine the party in whose favour the balance tilts, make necessary findings of facts, apply the relevant law to those facts and come to the logical conclusion – Whether summary or restatement of the evidence presented by the parties is the same thing as evaluation of evidence
  6. PRACTICE AND PROCEDURE – EVIDENCE – VARIANT EVIDENCE:Effect of a claimant’s evidence which is at variance with his claim – “it is clear that a claimant whose evidence departs from his claim and in particular as relating the dimensions of the land ipso facto, the identity thereof cannot be said to have established the identity of the Land, let alone proved his entitlement thereto”

 

 

MAIN JUDGMENT

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering The Leading Judgment):

This is an appeal against the judgment of the High Court Of Ondo State delivered by Hon. Justice C. E. T. AJAMA on 24th October, 2013 at the Akure Judicial Division.

 

The appellant herein, who was plaintiff at the trial court, instituted an action by a writ of summons dated 9th June, 2010 against the respondents/defendants therein claiming by a statement of claim dated 9th June, 2010 a declaration to title, injunction and damages for trespass in the following terms:

(a)     A declaration that the plaintiff is person entitled to the occupation, possession and rights to that property situate, being Off Akure Ilesha Road, Okuta- Elerinla, Akure, the subject matter of this suit (now known as No 7A Kayode Street, Lafe Area, Akure) and more particularly described in the survey plan No AK/1514/OD dated 28th February, 1978 drawn by D. O. Akigbogun and also on the basis of the Certificate of Occupancy dated 7th June, 1982 and registered as No. 48 at page 48 in Volume 262 of the Lands Registry Office at Akure issued in the name of the plaintiff respecting the land.

(b)     An order of perpetual injunction restraining the defendants by themselves, their servants, agents or privies or anybody claiming through them from interfering with or affecting in any manner whatsoever, the plaintiff’s occupation and rights to the property subject matter of this suit.

(c)     The sum of N5Million (Five Million Naira Only) as damages for trespass committed by the defendants on the property, the subject matter of this suit by posting letter on the front wall of the plaintiff’s property subject matter of this suit.

 

The defendant, respondent herein filed an amended statement of defence dated 1st February, 2012.

 

At the trial, the plaintiff testified as PW1 and called two other witnesses. He tendered some exhibits which were admitted in evidence and marked as exhibits A-J.

 

On their part 1st respondent who is the mother of the 2nd respondent gave evidence as DW5 having called four (4) other witnesses who testified for them. The respondents tendered through DW2 documents precisely receipts for payment of rent which were admitted in evidence and marked as exhibits K – K5. Other documents tendered by the defendants/respondents were admitted in evidence and marked as Exhibits T, T1, U and V. one of the documents (letter of request for C. T. C) was rejected by the court upon objection of the appellant and was marked as rejected.

 

At the close of trial learned counsel on both sides filed their respective written addresses after which the learned trial court in a considered judgment delivered on the 25th June, 2010 in Suit No AK/144/2010 contained on pages 62 – 90 of the record, dismissed all the plaintiff’s claims.

 

Dissatisfied with the said judgment the appellant who was the plaintiff at the trial in the court below filed a Notice of Appeal containing one ground of appeal before this court dated 5th December, 2013.

 

Both sides filed their briefs of argument. Appellant’s brief is dated 6th March, 2014 and filed 7th March, 2014 while respondents’ brief is dated and filed 17th April, 2014.

 

Appellant’s case:

The appellant claims he is the beneficial owner of all the piece or parcel of land and building thereon situate and being off Akure Ilesha Road, Okuta – Elerinla, Akure (Now known as No 7A Kayode Street, Lafe Area Akure) having purchased same from one Mr. Michael Esan in 1977, later applied for statutory Right of Occupancy dated 7th June, 1982 and registered as 48/48/262.

 

The appellant claimed further that the 2 buildings on the land were built with his own funds and for this reason he was surprised after the death of his elder brother, husband and father of the 1st and 2nd Respondents respectively, the claim that one of the buildings on the land registered in the name of the appellant belonged to the Estate of his late elder brother.

 

The Appellant on the pasting of Exhibit ‘A’ titled Letter of sharing of Late Chief Lisa property on the property in dispute by the 1st defendant/respondent filed this action at the Lower Court asking for the reliefs sought in the Statement of claim.

 

Appellant nominated two issues for the determination of this appeal videlicet:

(1)     Whether the trial court was right to hold that the appellant failed to prove ownership of the entire land area covered by certificate of occupancy dated 7th June, 1982 and registered as 48/48/2622.

(2)     Whether the learned trial judge properly and conclusively evaluated the evidence put up by the plaintiff and defendants in reaching the conclusion that the plaintiff failed to prove title to the land claimed by him.

 

On the other part, it is the case of the defendants/respondents that, in 1977 when the Ministry of works Akure wanted to demolish No 139 and 139A Oyemekun Road, Akure, built by Late Chief Emmanuel Olowoniyi Afesojaye, the husband and father of the 1st and 2nd Respondents, went to Mr. Michael Esan to buy the land at No 7A Kayode Street, Akure. The late Chief Emmanuel Olowoniyi Afesojaye built on plot No 7A Kayode Street, Akure for his son, that is, 2nd defendant while plot No 7 was given to his junior brother that is, Plaintiff to build his own house. When the late Chief wanted to obtain building plan, he obtained the two building plans for 7 and 7A Kayode Street, Akure and gave one that is No 7 Kayode Street, Akure to his brother, the Plaintiff, to build, while 7A kayode Street, Akure was built and given to his son inter – vivo. It is upon this, the pasting of notice on the building that, rent should not be paid to anybody except him or his mother, 1st Respondent.

 

The following two issues were distilled by the respondents for the determination of the appeal:

(1)     Whether the trial court was right to hold that the appellant failed to prove the ownership of that land and building on it, when the documents presented to the court are at variance to the land and the building he is claiming.

(2)     Whether tendering of survey plan without the features on the survey plan can avail appellant title to land, even though, what is contained in the recital of Exhibits ‘A’ and ‘B’ are at variance to the survey plan Exhibit ‘D’ and whether declaration of land can be granted to appellant on mere production of Certificate of Occupancy on a building and land.

 

The issues raised by both parties to me are similar. Thus, I shall be adopting the issues as raised by the appellant for the determination of the appeal and they are so adopted.

 

ARGUMENTS:

On issue one (1), learned appellant’s Counsel commenced by itemizing the Exhibits A – G tendered by the appellant relating to the disputed property which is also contained on the list of Exhibits on page one (1) of the record. Counsel went ahead to cite the case of Idundun V. Okumagba (1976) 9 – 10 SC 227 on five ways of proving title to land. Counsel further referred to the following cases: Augustine Obineche & Ors V. Humphrey Okusobi (2010) ALL FWLR (Pt.533) 1839 @ 1 1843; Ogunlaye V. Oni (1990) 2 NWLR (Pt.135) 745.

 

That the appellant in compliance with law, tendered Exhibits A – G as documents evidencing his ownership of the disputed property which according to Learned Counsel entitles him to judgment. Learned Counsel quoted lines 9 – 13 of page 82 of the record and submits that the position taken by the learned trial court was in accordance with the law. See Alhaji Sani Mani & 2 Ors V. Alh. Shehu M. Shanomo (2007) ALL FWLR (Pt.345) 303 @ 305 where it was held to wit:

“A Certificate of occupancy properly issued by a competent authority raises a presumption that the holder is the owner in exclusive possession of the land in respect thereof. The Certificate also raises a presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person has a better title to the land before the issuance of the certificate of occupancy then the court can revoke it.”

 

Appellant’s counsel argued that Exhibit “F” which is the certificate of Occupancy presented by the appellant raises a presumption, though rebuttable that he is the owner of the land in dispute. Learned counsel confirm the position of the law by citing the case of Yele Oyeneyin & Anor V. Dr. Akinkugbe & Anor (2010) ALL FWLR (Pt.517) 597 that mere production of a valid instrument of grant does not necessarily carry with it automatic grant of relief of declaration. He submits that the documents of title tendered at the Lower Court by the appellant satisfied the principle of law contained in Yele Oyeneyin & Anor V. Dr. Akinkugbe & Anor supra.

 

Learned counsel in an attempt to clear the alleged discrepancies in the documents tendered by the appellant and also the testimony of PW1, PW2 and PW3, referred to the learned trial court’s judgment on pages 82, 83 and 84 of the record and submitted that the alleged discrepancy was nullified by the trial court, that it ought to hold that the document of title particularly the certificate of occupancy was valid, which said counsel, should avail the appellant title to the land in dispute.

 

Learned counsel contended that the learned trial court went into extraneous issues not before it like that of identity of the land in dispute. That the parties never made it an issue but rather agreed that the disputed land is a building identical to that of the appellant. He referred to the evidence of PW1 and DW5 to assert that all the witnesses identified the property at No 7A Kayode Street, Lafe Area, Akure as the one in dispute. That there was no reason for the court to have dwelt on the issue of which survey plan covers or not. He cited the following authorities: Alhaji Rasaq Adisa Oyebanji V. Alhaji Salawu Akinloye Akinleye (2011) ALL FWLR (Pt.583) 2011 @ 2026; RISSEL L. Dakolo & Ors V. Gregory Rewane – Dakolo & Ors (2011) ALL FWLR (Pt.592) 1610 @ 1614.
Learned Counsel disagrees with the learned trial court on the issue of identity of land and submits that the extent of land was not in dispute between the parties but No 7A Kayode Street, Late Area Akure, Ondo State. That the learned trial court ought not have dismissed the appellant’s claim as issue of identity cannot be used to vitiate the Certificate of Occupancy covering the disputed property. Counsel argued further that Exhibits ‘B’ and ‘G’ which are building plans tendered in evidence cannot confer ownership of land on a party. Counsel further cited the case of Leye Oyeneyin & Anor V. Dr. R. A. Akinkugbe & Anor supra.

 

He contended that the production of an instrument of grant of title carries with it the need for the court to inquire into a number of questions which include:

  1. Whether the document is genuine and valid
  2. Whether it has been duly executed, stamped and registered
  3. Whether the grantor had the authority and capacity to make the grant
  4. Whether the grantor had infact what he purported to grant
  5. Whether it had the effect claimed by the holder of the instrument.

 

That, Exhibits ‘A’, ‘B’, ‘C’, ‘E’ used by the appellant to procure Exhibit ‘F’ the Certificate of Occupancy were not challenged. In support of his argument counsel cited the case of Alhaji Sani Mani & 2 Ors V. Alh. Shehu M. Shanomo (supra).

 

Relying on the above authority, counsel for the appellant holds the view that, the appellant being the holder and in exclusive possession of the disputed property raises a presumption that at the time it was issued there was not in existence a customary owner whose title had been revoked. That the title of the appellant ought to have been affirmed by the trial court, the Certificate of Occupancy having not been affected in any way by the authority in Mani V. Shanono (supra). He cited the following cases: Racheal Yewande Adesina V. Bac Electrical Company Ltd & Anor (2007) ALL FWLR (Pt.309) 1286 and Idundun V Okumagba (supra) for principles as to proof of title. Learned Counsel argued that the Certificate of Occupancy having not been challenged by former owners of the land (Gabriel Alade & Micheal Esan) who transferred to the appellant that nobody else can challenge same.

 

Appellant’s Counsel contented that the property in dispute, No 7A Kayode Street, Lafe Area, Akure falls within the Area covered by the Certificate of Occupancy of the appellant. He cited the case of UNLIFE DEV. CO. LTD V. MR. KOLU ADESHIGBIN & Ors (2011) FWLR (Pt.42) 114 in an effort to define what Land is and went ahead to say Land has both a natural and artificial content. Supporting his argument with the latin maxim quic quid plantatur solo solo cedit (whatever is affixed to the soil belongs to the soil) counsel stressed that the property in dispute being on the land of the appellant as in Exhibit ‘F’ is the property of the appellant.

 

That the 1st respondent’s evidence that the house at No 7A Kayode Street, Okuta – Elerinla, Lafe Area, Akure was given to the 2nd defendant as a gift inter vivos was not supported by any documentary evidence. He referred to the case of Alhaji Yau Dankula V. Alhaji Garba Dan Shagamu & Anor (2008) ALL FWLR (Pt.413) 1283.

 

Learned Appellant’s Counsel contended based on the aforementioned authority that the appellant being the owner of the land on which the property in dispute is built becomes the owner of the building irrespective of whoever built it. Counsel urged us to resolve this issue for the Appellant.

 

In reacting to the above issue, learned counsel for the respondents also began by itemizing Exhibits’A1 ‘B’, ‘D’, ‘E1 ‘F1 ‘G’and ‘I’. That Exhibit ‘I’ was tendered by the respondents through the appellant. Counsel pointed out that serial No 4 on the list of Exhibits as contained in the record is not C.T.C of Original building plan but Survey plan of the land in dispute tendered by the appellant.

 

Learned Counsel relying on the cases of Ibokolo V. Tariah (2012) ALL FWLR (Pt. 653) 1923 @ 1931 and Idundun V. Okumagba (supra) gave 5 ways by which a claimant can prove ownership of title to land.

 

He tried to compare Exhibits ‘A’ and ‘B’; with Exhibit “D” by quoting the following recitals therein:

Exhibit ‘A’- “It was bounded over at the front and right sides respectively by proposed road, at the left side by another vacant piece or parcel of land”

Exhibit ‘B’ – “The said piece or parcel of land is bounded as follows: – on the first side and second side by proposed Road. On the third side by Omoniyi’s land. And on the fourth side by vacant piece or parcel of land.”

 

Learned respondent’s Counsel in making the comparison argued that the features as described on the said exhibits does not reflect on exhibit “D’, which is the survey plan tendered by the appellant. That there was only one road by the left side, that features which ought to be on Exhibit “D” like building and the wall demarcating the land from another building were not indicated. That Exhibit “D’ did not show any proposed roads as contained in the above quoted recital.
Referring to the trial courts judgment on page 82 of the record, counsel argued that the word “seem” as used by the learned trial judge by The New Webster’s Dictionary of the English Language International Edition, page 904 meant:

“to have an appearance of being true”

 

That the learned trial court having gone through the exhibits, considered the allegations made against the appellant which he failed to refute or deny. That Exhibits “G” and “F” clearly show the demarcated land of the 2nd defendant. That Exhibits “G” and “F” the two building plans were drawn by the same person/Mr. Tunji a licensed draughtsman and not by PW2 as claimed by the appellant. That at the lower part of Exhibit “G” was where the land of 2nd defendant was demarcated from that of the appellant.

 

Learned counsel referred to the reasoning of the learned trial court in its judgment on page 84 and 85 of the record in support of his argument.
He also referred to the cases of Oyeneyin v. Akinkugbe supra and Ariyo V. Adewusi (2012) ALL FWLR (Pt.640) 1400 @ 1402 to submit that the holder of the instrument claiming declaration to title must adduce sufficient and credible evidence in establishing mode of acquisition of his title and that he must succeed on the strength of his case. That the instant appellant failed to discharge this onus placed on him by law. That the allegations made against the appellant at paragraphs 8, 9, 10, 17, 18, 18a, 18b, 19 and 20 of the amended statement of defence in the records were not disproved by the appellant. Counsel contends that pleading not challenged is regarded as admitted.

 

Respondents’ counsel argued that where there is claim for trespass and injunction, the title of the disputed property is already in issue. That the respondents have been on the said property No 7A Kayode Street, Akure since 1977 and the appellant could not lay claims to the property until after the death of his brother Chief Emmanuel Olowoniyi Afesojaye, the father of 2nd defendant. Learned Counsel referred the court to case of Tanko vs Nougha (2005) ALL FWLR (Pt.286) 774 @ 776 where it was held follows:

“It does not follow that a court must accept every evidence led by plaintiff simply because the defendant led no evidence. The evidence which is unchallenged by other evidence but which by itself is incredibly ought not to be accepted. In the instant case, the trial court ought to have properly examined the evidence led by the plaintiff and his witnesses, it did not do so. The evidence was not qualified to be acted upon by the court as the trial court did.”

 

Learned respondents’ counsel further argued that the survey plan tendered by the claimant in this case ought to correspond to the land in issue. That appellant’s survey plan was at variance with the disputed land and thus, has nothing to claim. He cited the cases of Aro Vs Obalaro (1968) NMLR 238 and Odofin V. Ayoola (1984) II SC 72.

 

Counsel holds the view that the learned counsel for the appellant emphasized more on the certificate of occupancy giving little attention to the documents used in obtaining the Certificate of Occupancy which vary. Learned counsel submitted that the appellant was never at any time in possession of the property No 7A Kayode Street, Akure.

 

That same has been in possession of respondents’ family from when it was bought in 1977 to when it was built in 1978 by the 1st respondent’s husband, and 2nd respondent’s father, now deceased. He referred to the case of Hassan V. Tade (2012) ALL FWLR (Pt.612) 1764 @ 1766 where the court held that:

“Trespass is interference with possession, or the entering of somebody else’s land unlawfully or to go into somebody else’s land or entering somebody else’s property without permission. Trespass to land is actionable at the suit of the person in possession of the land. In the instant case the defendant entered plaintiff’s land without permission which constituted trespass therefore, the trial court rightly awarded damages.”

 

RESOLUTION OF ISSUE ONE:

It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the plaintiff. See the case of Ayuya V. Yonrin (2011) 4 SCNJ 60 @ 65.

 

In the case of Tanko v. Echendu (2011) 18 NWLR (Pt.1224) 253 @ 255 SC it was held viz:

“Where two parties claim title to land the law ascribes title to the party with a better title and the claim is decided on the balance of probability.”

 

The instant appellant testified for himself and called two other witnesses. He also tendered some exhibits. On page 19 of the record he gave evidence before the court as follows:

“The 1st defendant is the one collecting rents from the tenants, This is because she was pestering her husband so much that he appealed to me to allow her collect the rent for a short while.”

 

From the evidence on record it is clear as crystal that the 1st defendant had been with her husband Chief E. O. Afesojaye even before 1977 when the purported land was bought. Thus, that had been the reason she and her family had been in possession of the said property as contained on the record.

 

On Cross-examination as contained on page 7 of the record, plaintiff/appellant stated as follows:

“I entered into a certain agreement with my brother when we bought a certain piece of land. Our agreement was to the effect that the side I built on was mine while the other side on which he built his own house is his own.”

 

The question that comes to my mind is why the appellant is now claiming ownership of both buildings on the disputed property.

 

The evidence before the court show that the appellant was never in possession of the building claimed by the respondents.

 

It is trite in law that a document tendered in court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded. See Anyanwu V. Uzawuaka (2009) 7 SCNJ 29 @ 34.

 

Respondents pleaded on paragraph 17 of their amended statement of defence that the plaintiff/appellant fraudulently collected the original receipt of purchase and the building plan of No 7A Kayode Street, Lafe Area, Akure from Late Chief E. O. Afesojaye.

 

I have taken a look at the building plans Exhibits ‘D’, ‘G’ and ‘I’ and I realized Exhibits ‘G’ and ‘I’ were drawn by draughtsman Tunji as claimed by the respondents and not by Olu Olorunda as claimed by the appellant. This makes me question the validity and genuiness of the documents tendered by the appellant in evidence and hence the need to consider the other evidence adduced before the court especially those of witnesses.

 

The case of Nwokidu V. Okanu (2010) 1 SCNJ 167 @ 175 it was held to wit:

“Where in a claim for declaration of title, the evidence is unsatisfactory, the judgment should be in favour of the defendant on the ground that it is the plaintiff who seeks relief but has failed to prove that he is entitled to what he claims. If the defendant is able to adduce evidence oral or documentary which has the effect of discrediting the plaintiff’s case, such a declaration would be refused and judgment must be entered for the defendant.”

See also Ekun & 3 Ors V. Baruwa & Ors (1996) 2 ANLR 211; Ogundare V. Okonlawon & Ors (1963) ANLR 358 @ 361.

 

DW1, the daughter of Chief E. O. Afesojaye testified that her father built the property at No 74 (Lafe Inn) kayoed street, Akure in the name of his first wife’s son, Bankole. She also testified that the second building on the property belonged to her uncle, the appellant. That she was eleven years old when her father roofed the house.

 

DW2 is a tenant in the said disputed property who testified to knowing both parties. That the 1st respondent’s husband had been her landlord whom she had been paying rent to. She tendered receipts in that regard. DW3 chaired the fourteen (14) man committee that shared the property of Late Chief E. O. Afesojaye. He testified that plaintiff/appellant admitted his late brother built the property in dispute but that he owned the land.

 

In the appellant’s statement quoted earlier he said he and his brother entered an agreement and bought a land which each built his own. Why was the appellant now claiming before the committee that he bought the land alone and if that is true as claimed, why was he not in possession throughout the lifetime of his brother?

 

In the case of Egharevba V. Osagie (2009) 12 SCNJ 166 @ 168 it was held that:

“A pertinent question to ask is why the respondent would allow the appellant to build a house on his land in 1980 without paying anything for it and live there until 1988 before he woke up to his rights. The answer is obvious that no reasonable person in his normal faculties would allow that to happen..”

 

In my humble view, having questioned the geniuness of the documentary evidence tendered by the appellant as exhibits, I also doubt his oral evidence before the court. Even if that not being the case, I am convinced by relying on the above authority and I so hold that appellant who could not claim possession of the disputed property when his brother was alive, cannot claim same now.
Appellant is estopped as he is caught by the doctrine of laches and acquiescence. This was also the decision of Kabiyesi, the Deji of Akure in his wisdom.

 

In addition, DW3 also gave evidence that when the children of Late Chief E. O. Afesojaye were summoned by the committee, that they were able to identify eighteen (18) properties inclusive of the one in dispute.

 

DW4 is the person that built the disputed property. He testified that the building had a plan and he described Chief E. O. Afesojaye as the person that employed him to build the disputed property in 1978 and not the plaintiff.

 

DW5 is the 1st defendant and wife of late Chief E. O. Afesojaye. She gave evidence corroborating the evidence of all the other witnesses and tendered Exhibits “I”, “T”, “T1”, “U” and “V”.

 

On Cross examination at page six (6) of the record appellant testified that:

“After the creation of Ondo State I came back to Akure in 1976”

 

On a further Cross – examination on page 27 of the record appellant said

“I caused the land to be surveyed in 22nd February, 1977 I commenced building the house in 1971 I now say the survey was done in 1986 or there about”

 

I find his evidence contradictory and lacking in truth. I am convinced that the decision of the learned trial court on pages 85 to 86 of the record are in order. It is hereunder reproduced:

“That takes me to the approved building plan which the claimant allegedly secured from the Department of Urban and Regional planning in 1978 i.e Exhibit G, it is common knowledge that before the Regional or Town Planning Division of the Ministry of lands and Housing considers a building plan, a site plan of the land showing all access roads to the land area must accompany the building plan. In this case, exhibit G which was tendered by the claimant contains such a plan on the lower half of the right hand side which shows where plaintiff’s land is located.

Not only does that sketch show the extent of plaintiff’s land, it further shows that the land located to the left of his land belongs to the 2nd Defendant Mr. Bankole Fesojaye. However, exhibit D which was allegedly produced in 1978 has suddenly increased in size and area swallowing up the land in the site plan alleged to be that of Mr. Bankole Fesojaye as shown in Exhibit G.

One must bear in mind that the Town Planning Division that approved Exhibit G for Mr. A. Afesojaye in 1978 also approval Exhibit 1 for Bankole Afesojaye. The big question is, at what point in time did the property indicated as belonging to Bankole Fesojaye in Exhibit G tendered by the claimant metamorphosised into Julius Akingbade Afesojaye’s property?

The Defendants pleaded in paras 9, 17, 18, 19 that the plaintiff came to the father of the 2nd Defendant and collected the title documents and failed to return them till the death of his brother who brought him out of penury and gave him some ray of hope in life. The claimant did not deny this allegation to my satisfaction. Taking the above situation into consideration and especially the revelation in Exhibit G that the plaintiffs land is not as large as he has shown it to be in Exhibit D and Exhibit F, I find it extremely difficult to believe that the plaintiff who in 1977/78 showed the extent of his land to the Town Planning Authorities for the purpose of obtaining exhibit G and who by implication acknowledged the ownership of Bankole his nephew of the next plot can now claim total ownership of all the land. In the absence of any further explanation by the plaintiff despite the allegations against him which he has not deemed fit to explain or refute, I find it difficult to believe that the plaintiff has given enough explanation to enable this court to hold that he has discharged the onus necessary to get a favourable pronouncement in his favour in this suit”.

 

The trial court which alone has the unique privilege of seeing and hearing the witnesses testify; has the primary function of appraising and ascribing probative value to the evidence presented by the parties, put the evidence on the imaginary scale of Justice to determine the party in whose favour the balance tilts, make necessary findings of facts, apply the relevant law to those facts and come to the logical conclusion. The summary or restatement of the evidence presented by the parties is not the same thing as evaluation of evidence. See Anyanwu V. Uzawuaka supra.

 

It is my finding that the documents relied on by the appellant in his claim for title fell short of the required proof by law, having acknowledged also that the 1st defendant has been in possession of the property in dispute. This issue is resolved against the appellant and for the respondent.

 

ISSUE TWO

Whether the learned trial judge properly and conclusively evaluated evidence put up by the plaintiff and defendants in reaching the conclusion that the plaintiff failed to prove title to the land claimed by him:

 

On this issue, Learned Counsel for the appellant started by reviewing the appellant’s evidence before the court as to ownership of the disputed property which according to counsel documentary evidence were tendered by the appellant in support of his claim.

 

He also reviewed the evidence given by DW1 contained on pages 26 and 27 of the record and contended that DW1’s evidence was hear say and cannot stand against the plaintiff’s evidence. counsel referred to the case of Yusuf Suleiman Lasun V. Leo Adejare Awoyemi & Ors (2011) ALL FWLR 713 where it was held that:

“A testimony will only be regarded as hear say where the person making the statement is not the one who neither saw it, hear it, perceived it or gave it as his own opinion but rather as what was said to him by another person.”

 

Learned counsel argued that the evidence of DW1 that her father told her the property belongs to the 2nd defendant is purely hearsay and cannot support the contention that the 2nd defendant is the owner of the property in dispute.

 

That DW1 who was just a tenant in the said property, her evidence cannot be relied upon as it is worthless.

 

On reviewing the evidence given by DW3, Learned counsel submitted that his evidence cannot be of any help in determining the owner of the land in dispute. He cited the case of Yusuf Suleiman v. Leo Adejare & ors supra. That as for DW4, he made it clear he does not know the owner of the land in dispute.

 

Counsel argued as to DW5’s evidence that there was no receipt for the said property alleged to have been collected by the plaintiff for purposes of accessing loan. That exhibit “C” from Tunde Olofunsawo and exhibits “A” and “B” Agreement for transfer of Land and Building Land purchase Agreement respectively presented by the plaintiff, trace his title from Gabriel Alade to Michael Esan. counsel argued that DW5’s evidence is neither direct nor positive and cannot confirm anything in favour of the 2nd defendant. That the learned trial court failed to evaluate the evidence of the defence witnesses but instead supported same, to the detriment of the plaintiff, counsel referred to the case of Lasun v. Awoyemi supra and Obit Udo V. Okupa (1991) 5 NWLR (Pt.191) 365 @ 385. It was held in the latter case by this court thus:

“In the evaluation exercise, the trial judge should remind himself of his adversarial and accusatorial role and deal with the evidence of the witness evenly and equally across the board to the egalitarian advantage or disadvantage of the parties. On no account should he sponsor the evidence of one of the parties at the expense of or to the detriment of the other party.”

 

It is the counsel’s contention that the learned trial court’s judgment against the plaintiff was not in line with the aforementioned authority. He urged us to evaluate the evidence adduced before the court and to resolve this issue in the appellant’s favour.

 

Learned Counsel further urged the court to allow the appeal and grant the reliefs sought by the appellant in his statement of claim.

 

On his part learned counsel for the respondents argued by citing section 34 of the Land Use Act. That any person without title to a parcel of land in respect of which Certificate of Occupancy has been issued acquires no right or interest which he did not earlier possess.

 

Counsel cited the case of Izvbigie Vs Olobor (2005) ALL FWLR (Pt.290) 1546 @ 1550.

 

Counsel argued that the defendant and her husband have been collecting rent from the tenants they put in the house which was built in 1978. That the plaintiff failed to specifically describe with certainty the land he is laying claim to.

 

Respondents’ Counsel argued that a claim for declaration of title to land will succeed only when the court is satisfied as to the precise nature of the title claimed which must be established by evidence. That all the exhibits tendered in court by the plaintiff are at variance and thus, plaintiff has no title. He cited the following cases in support of his argument:

– Olokotintin V. Sarumi (1997) 1 NWLR (Pt.480) 222CA.

– Odesanya Vs. Ewedani (1962) SC

– Etim V. Oyo (1978) 5 SC 91

– Emmanuel Irabor & Anor Vs. Ogaiamien (1999) 6 SC 151

– Benedict Otanma Vs. Kingdom Youdubagha (2006) 1 SC 23 @ 33

– Adetutu Adesanya Vs. Alh. S. D. Aderonmu & Ors (2000) 6 SC 18 @ 24

– Odofin Vs. Ayoola (1984) II SC 72.

 

Respondents’ counsel went on with the contention that where there is tendered in evidence before the court a documentary evidence, that it has the duty to evaluate same and failure of a witness to lead evidence thereon does not merit a reversal of the decision of the court upon such evaluation. He referred to the case of Chief Iyanda & ors vs. Chief Laniba & Ors (2003) FWLR (Pt.138) 1267 @ 1293.

 

Counsel submitted that the learned trial court’s evaluation of the documentary evidence tendered by the claimant was in order, as it enabled it arrived at a just conclusion.

 

He cited the case of Ariyo V. Adewusi supra that:

“The mere tendering of an instrument of title to land, such as a deed of conveyance or Certificate of Statutory or Customary Right of Occupancy in court does not automatically prove that the land therein purportedly conveyed, granted or transferred by the instrument becomes the property of the grantee. The existence of certificate of occupancy is merely prima facie evidence of title to the land it covers and no more.”

 

In his conclusion learned respondent’ counsel contended that the property in dispute has been in possession of the respondents who have been collecting rent from tenants they put. That appellant never laid claim to the said property until two years after the death of his brother. That the documents tendered by the appellant in evidence are at variance and the appellant having not proved exact boundaries to his property is not entitled to judgment. He urged the court to discountenance the documents tendered by the appellant and to dismiss the appeal with substantial cost.

 

RESOLUTION OF ISSUE TWO:

It is the law that where a plaintiff claims ownership of a piece or parcel of land against his neighbor and describes the boundaries of the said land in a survey plan which is tendered and admitted in evidence, that survey plan clearly refers to the particular piece or parcel of land in dispute and it cannot be said that the identity and extent of the said land is unknown, what the plaintiff/claimant now needs to do is to prove/establish his title to the said disputed land by one of the five ways/method of proving ownership or declaration of title to land and to also testify as to the features e.t.c. on the land in issue. See the case of Ayinya v. Yourin supra.

 

It was held in a plethora of cases that a plaintiff has an option amongst any of five (5) ways to prove title or ownership of property when challenged.

 

The five ways are viz:

(1)     By traditional evidence

(2)     By production of document of title duly authenticated and executed

(3)     By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership.

(4)     By acts of long possession and enjoyment or

(5)     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 owner of the land in dispute.

See Idundun V. Okumagba (1976) 9 – 10 SC 227; Piaro V. Tenado (1976) 12 SC 31; Fasoro V. Beyioku (1988) 2 NWLR (Pt.76) 263; Amajideogu V. Onanaku (1988) 2 NWLR (Pt.78) 641; Nwokidu V. Okanu supra.

 

It is however, the law that he who asserts must prove. I have carefully read the record before the court. The plaintiff/Appellant did not satisfy the requirement of the law as relating to proof. The documents tendered by the appellant in evidence were challenged by the respondents and the learned trial court took time to evaluate every piece of evidence before it, including the testimony of witnesses. For the avoidance of repetition, I endorse part of the judgment of the trial court earlier quoted on pages 84 – 86 of the record. I also hereunder reproduce from the last paragraph of page 86 to the first paragraph of page 89 of the record and I so agree.

“In this case the area of land which the plaintiff claims presently in exhibits A & B is at variance with the area identified in Exhibit G as his portion. That same exhibit acknowledges the second defendant as the owner of the plot next to the claimants which plot the claimant has now annexed to his. However, the claimant woefully failed to put before the court evidence that proves his ownership of the parcel of land said to belong to Bankole Fesojaye in Exhibit ‘G’ which he tendered. One must bear in mind that there is evidence before the court in Exhibit 7 that an approval was given to Bankole Fesojaye by the same approving authority to build his house on the next plot here claimed by the claimant.

In the light of the above, I am convinced that the claimant has failed to prove how the size of the land shown in exhibit ‘G’ as his increased in size and area to the one shown in Exhibit ‘F’. it is firmly settled in Law that where a claimant, in an action for declaration of title, fails to prove the boundaries of the land he is claiming, he has failed by that omission to prove his case and the proper order which the court should make in such circumstances is usually one of dismissal of the claim.
Here in this case, the extent of land shown in Exhibit G which is what he claimed to have acquired from Mr. Michael Esan in 1977 is totally at variance with what is shown in Exhibit ‘D’ & ‘F’. in Exhibit A, the extent of land sold to Mr. Michael Esan by Gabriel Alade is said to be 100 feet by 110 feet. That parcel of land is what Michael Esan is said to have sold to Julius Fesojaye which is reflected in Exhibit G. But the area of land shown in Exhibit D and Exhibit ‘F’ even though they are in agreement are not a reflection of what is contained in Exhibits ‘A’ & ‘B’. it is clearly stated in Exhibit ‘A’ that the parcel of land in issue is 110′ x 100′ which when converted to metres reads 33.03m x 30.03m respectively. And that it is bounded on the first and 2nd side by proposed roads on another side by Omoniyi’s land and on the fourth side by a vacant piece of land. It is for this land acquired on 11th October, 1977 by the claimant that a Building plan Registration No.1115/77 was submitted on the 19th April, 1978. But Exhibit ‘D’ now submitted by the claimant and which is also shown on Exhibit ‘F’ speaks a language contrary to what is shown in Exhibit ‘G’. First it is not bounded on two sides by roads. Secondly, none of the four sides are equal. On the right side the land is 30.38m long, on the left it is 40.59 metres. The side running almost parallel to the road is 33.90″ while the fourth side is 38.69 metres. Even to a partially blind person the dimension shown in Exhibits ‘D’ & ‘F’ which the claimant used to obtain his Certificate of Occupancy is at variance with the description of the land sold to him by Mr. Michael Esan on the 17th of October, 1977. Even a blind mind man can see these differences. But to clarify all issues, the land shown on Exhibit ‘D’ & ‘F’ when converted to measurement in feet (at 3.33 feet = I metre) will read something like this: the right side which reads 30.33 metres converts to 101.1654 which is approximately 101ft the left side which is 4059 metres converts to 135.1647ft which is approximately 135ft, the side running almost parallel to the road which is 33.90m converts 112.887 which is approximately 113ft, while fourth side which is on the far side from the road and which measure 38.69m converts to 128.8377 which is approximately 129ft. There is therefore no doubt in my mind that the claimant has failed to prove satisfactorily that the portion of land he allegedly acquired from Mr. Michael Esan which is clearly described in Exhibit ‘A’ & ‘B’ is the same he is here laying claim to, and that the extent of land for which he obtained Exhibit ‘F’ the Certificate of occupancy is at variance with what he allegedly acquired from the said Mr. Esan.”

 

With all sense of modesty, I shall reproduce what I had stated succinctly in the Judgment of this court in Karimu V. Lagos State Government (2012) 5 NWLR part 1294 pages 620 – 652. This is what I said:

“Sad enough, the evidence at the trial, tended to prove facts different from the pleadings and must be discountenanced.

See Waghorn Vs George Wimpy & Co. Ltd 1969 1 WRN 1764 – paragraph C – D at page 643 of the report.” I had also stated at page 641, paragraph B of the report thus:

“On the assumption that the identity of the land is well known to the parties many a cases (sic) have been lost in court.”

 

I must not forget to re-echo what I also stated as relating to the place of proof of a case and the burden thereon the claimant.

 

This is what I said:

“For its pivotal relevance in the resolution of this appeal, I shall endevour to emphasis that this burden placed upon a claimant in an action for a declaration of title or claim of ownership is a concomitant effect of the provisions of the Evidence Act which provides and places the burden of facts asserted on a claimant See S.137 and 138 of the Evidence Act, 1990 LFN 2004. See Elias V. DISU (1962) ALL NLR 214, (1962) 1 SCNLR 361, Abiodun V. Adehin (1962) 1 ALL NLR 550 (1962) 2 SCNJLR 305, Okechkwu & Sons Vs Ndah (1967) NMLR 368; Frepong II Vs Brempona II (1952) 14 WACA 13.

 

Where a claimant pleads title, he has the consequential burden of proving title to that piece of Land claimed. See G. B. Ollivant Ltd V Kersah (1941) 7 WACA 188; Oladeinde V Oduwole (1969) WNLR 41; Mogaji Vs Odofin (1978) 4 SC 91, Bello V. Eweke (1981) 1 SC 101, Onobruchere V. Esegine (1986) 1 NWLR (Pt.19) 799”.

 

From the above, it is clear that a claimant whose evidence departs from his claim and in particular as relating the dimensions of the land ipso facto, the identity thereof cannot be said to have established the identity of the Land, let alone proved his entitlement thereto.

 

The Respondents as stated in the Karimu V Lagos State Government case (supra) had proved their defence, although they do not owe any primary duty of proof. The weakness or otherwise of their case is not the determinate factor; rather, it is the claimant such as the Appellant is in this appeal who bears the burden of proof and shall only succeed on the strength of his own case and not otherwise.

 

This is the quagmire of the Appellant as Plaintiff at the trial court. He never overcame.

 

The kingdom is only for those that have overcome, says the epistle and by the sage.

 

On the contrary, I have no doubt that Exhibits tendered by the respondents are genuine and same were not challenged by the plaintiff. I am also convinced that all the witnesses called by the respondents are credible, competent and who gave cogent, and corroborative evidence for the respondents. I hold that they are witnesses of truth and the learned trial court was in order in its evaluation of evidence. The law is trite that Plaintiff/Claimant must succeed on the strength of his case and not on the weakness of the defendant’s case. See Osuji V. Ekeocha (2009) 7 SCNJ 248 @ 252.

 

I agree with the learned respondents’ Counsel’s submission that the appellant failed to give satisfactory evidence as to his claim of title to No.7A Kayode Street, Akure.

 

Accordingly, this issue is resolved in favour of the respondents and against the appellant.

 

The end result of all that I have said above is that, on the balance of probabilities, considering the evidence adduced before the court the scale of Justice tilts in favour of the respondents.

 

I hold that the appeal lacks merit. It is hereby dismissed.

 

The decision of C. E. T Ajama, J. in suit No AK/144/2010 delivered on 24/10/2013 is upheld.

 

I make no order as to cost.

 

 

MOJEED ADEKUNLE OWOADE, J.C.A.:

I read before now the judgment just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, JCA and I agree with the reasons contained therein and the conclusion arrived thereat. The appeal is devoid of merit and it is accordingly dismissed by me.

 

I abide by the consequential order(s) made in the lead judgment.

 

 

JAMES SHEHU ABIRIYI, J.C.A.:

I agree.

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