Dr. P. O. Lawal V. Alh. Abdulkadir Aliyu (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Kwara State, presided over by M. Abdulgafar, J, delivered on 30th, September, 2013, wherein the learned trial judge ordered a non-suit against the claimant/appellant’s suit.

Dissatisfied with that decision, the appellant herein resorted to appealing by filing a notice of appeal premised on the following five grounds:

1. The learned trial judge erred in law in holding that “while I do not agree with Mr. Ibrahim that the application is an abuse of process, I do agree that it amounts to an attempt to overreach the defendant and on that score the application ought not to be granted. I therefore refuse the application of the claimant to admit the Certified True Copy of the conveyance dated 15th July, 1977.”
2. The learned trial judge erred in law in holding that “although I have found that the claimant bought the land from the defendant, there is no evidence before the court of the actual size of the land that the claimant purchased from the dependant since the deed of conveyance is not before the court. Furthermore the case of the defendant is that it was only two plots measuring 100 feet by 100 feet that was sold to claimant.”
3. The learned trial judge erred in law in holding that “in the light of that challenge by the defendant, it becomes important to establish the actual size of the land sold to the claimant. This is more so because the size of the land as contained in the right of occupancy came about as a result of the survey that was undertaken several years after the land was acquired. The conclusion I have therefore come to is that the claimant has not established the actual size of the land he acquired from the defendant.”
4. The learned trial judge erred in law in holding that “the claimant to establish the extent of the land not out of any fault of his but for that of his counsel. The manner Mr. Durowaiye has conducted this case has left much to be desired. He had document vital to his client’s case but he did not tender it properly. He further demonstrated this failure to tender a letter written to his client by the defendants’ solicitor which he claims is crucial to his client’s case.”
5. The learned trial judge erred in law in holding that “having found that the claimant has not established the extent of the land he bought in 1977 as against the land granted by the right of occupancy and seeing that the defendant is not entitled to the Judgment of the court, the appropriate order in the circumstance is an order of non-suit.”

The appellant herein instituted this action at the court below as plaintiff against the respondent as defendant herein seeking for the following reliefs:

1. A declaration that the claimant is the owner of all that parcel of land situate, lying and being of Tanke village along University Road in Ilorin Local Government Area, Kwara State and measured up to about 3342.450 square metres and that the defendant’s family has no subsisting title whatsoever to the said parcel of land.
2. An order of perpetual injunction restraining the defendant’s family by themselves, agents, servants, privies and/or assigns whosoever from trespassing and/or asserting any claim to the said parcels of land of the claimant that is inconsistent with the claimant’s title over the said parcels of land.
3. N2,000,000.00k (Two Million Naira) as general damages.

The respondent, however, filed a counter claim and prayed that the claimant’s suit be dismissed. (See pages 46 to 52 of the record).

Before the commencement of trial, the appellant applied to the trial court to amend his statement of claim to reflect that he would tender a photocopy of the deed of conveyance of the trial because the land office has retained the original document. That application was granted by the court on 26th January 2012, following which an amended statement of claim was filed incorporating an additional statement on oath of the appellant (see pages 94 to 99 of the record).

At the trial, the appellant testified for himself and tendered a copy of the deed of conveyance, the survey plan and the grant of right of occupancy in respect of the land in dispute (see pages 13 to 17 of the record).

The respondent and his son Abdulkadir Bolaji testified at the trial but did not tender any document.

The learned trial judge called for address of counsel on the admissibility of the documents tendered by the appellant, which were duly settled. (See pages 100 to 113 of the record). In its ruling, the subject of this appeal, the court below admitted only the grant of right of occupancy exhibit 1 but rejected the copies of the Deed of Conveyance and the Survey Plan on the ground that they were not certified.

However before the date fixed for judgment, the appellant’s counsel got the deed certified and brought an application, to tender a certified true copy of the said deed of conveyance. Upon that application, the court invited both counsel to address the court on the propriety of non-suiting the appellant’s suit. On 30th September, 2013 the learned trial judge delivered his decision, the subject of this appeal, wherein he refused the appellant’s application to admit the certified true copy of his deed of conveyance and instead made an order of non-suit in respect of the appellant’s action.

Two similar issues were each raised by the appellant and the respondent. However, the appellant’s issues which I consider more apt and devoid of repetition are adapted for the determination of this appeal. The two issues read thus:

1. Whether the honourable trial court is right in its judgment to hold that there is no evidence before the court of the actual size of the land that the claimant purchased from the defendant since the deed of conveyance is not before the court to entitle him to his claim. (Distilled from grounds 1, 2, 3 and 4)
2. Whether the honourable trial court was not wrong to make an order of non-suit after a full trial of this case. (Distilled from ground 5).

Arguing the first issue, the learned counsel for the appellant Segun Durowaiye, Esq. reiterated the well settled principle of law that in a land suit, where a defendant claims to be the owner thereof, title is automatically put in issue and for the plaintiff to succeed, he must establish a better title to the land in dispute than that of the defendant.

See Adebyo V. Ighodalo (1996) 5 SCNJ 23 at 45; Amakor V. Obiefuna (1974) 3 SC 67 of 78. The appellant’s claim against the respondent was that the latter had trespassed into former’s land. On his part, the respondent claimed to be the traditional owner of the land in dispute. In the circumstance, title was squarely put in issue and it becomes incumbent on the respondent to prove better title to the land for him to succeed on his counter-claim.

It was submitted, for the appellant, that the respondent had woefully failed to establish better title to the land in dispute. Rather, the appellant deserved to be awarded the land on the preponderance of the evidence. It was submitted that the finding of the trial judge that “there is no evidence before the court of the actual size of the land that the claimant purchased from the defendant since the deed of conveyance is not before the court” radically belies the totality of evidence adduced by the appellant especially as it relates to all the documents tendered by the appellant in the course of trial.