Emmanuel E. Atufe V. Efemini Oghomienor (2003)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD S. MUNTAKA-COOMASSIE, J.C.A.

This is an appeal against the decision of the High Court of Justice, Sapele, Delta State of Nigeria, Coram Nwulu, J., delivered on the 26/9/2000, in which the claim of the plaintiff, now appellant, was dismissed.

The plaintiff in his amended statement of claim in paragraph 26(a), (b), (c), (d), (e), (i), (ii) thereof claimed against the defendant follows:

“Wherefore the plaintiff claim the following declarations and reliefs:

(a) That the plaintiff is both the legal and equitable owner of the building, known as No. 197, New Ogorode Road, Sapele, as against the defendant.

(b) That the defendant is a tenant to the plaintiff in the building, known as No. 197, New Ogorode Road, Sapele.

(c) That the plaintiff is entitled to the statutory right of occupancy of the premises known as No. 197, New Ogorode Road, Sapele.

(d) That the defendant should render account of all monies collected from other tenants which the defendant forceably put into possession, without the authority and consent of the plaintiff.

(e) The plaintiff further claim for the following orders:

(i) An order of perpetual injunction restraining the defendant, his servants, agents or privies from altering,

reconstructing the said building and premises known as No. 197, New Ogorode Road, Sapele.

(ii) An order of injunction restraining the defendant from holding himself out as a landlord of the building known as No, 197, New Ogorode Road, Sapele and from collecting rent from any person staying in the said building or renting the premises to any person or persons for any use whatsoever.”

Pleadings were ordered, filed and exchanged. At the hearing, plaintiff testified and called three other witnesses, while the defendant gave evidence and called one witness.

The plaintiff in his testimony stated that he bought the property dispute i.e. No. 197, New Ogorode Road, Sapele, from one Tony Offili (PW1) who, in turn, bought the property from one, Igwe in 64. The registered deed of assignment between Tony Offili and he was handed over to the plaintiff, and a fresh purchase receipt was issued to the plaintiff by Offili. These documents were tendered as exhibits A & B respectively.

According to the plaintiff, after the sale of the property to him by Offili, he was introduced to the tenants in the house including the defendant as the new landlord after which Offili left for Eastern Nigeria, while other tenants paid, the defendant did not pay the rents.

This led the plaintiff to sue the defendant at Sapele Area Customary Court for arrears of rent and possession. The defendant raised the issue of title, at the said court, and the suit was struck-out for lack of jurisdiction. Consequently, the plaintiff brought this action at the High Court.

Under the cross-examination, the plaintiff admitted he did not know Igwe’s predecessors in title. He admitted that the defendant was in possession when he bought the property. He was not there when the defendant entered the property and he did not know that the other tenants were put in possession by the defendant.

PW1 was one Anthony Ofili, who sold the property in dispute to the plaintiff. He stated that he built the house. He bought the said property in June, 1964, from one Mr. Igwe and he registered the deed of conveyance. He then identified exhibit A. He was living in the said house before the civil war broke out and when it ended in 1970, he came back and met the defendant in the property and he introduced himself to him (the defendant) as the owner; and when he wanted to go back to the East, he asked him (the defendant) to stay in the property, until he comes back. On getting to the East, he got an appointment as Principal Pharmacist and when he did not know what to do with the house, he sold it to the plaintiff, who showed his interest in buying the property.

The plaintiff took him to his lawyer, who prepared a deed of conveyance exhibit B. Under the cross-examination, the witness admitted that he did not know how land is owned in Sapele, he stated that he is not aware that Sapele, Okpe community make grants of all land in Sapele to purchasers. He stated that he had no tenants in the property and that he never, collected rent on the property. This witness affirmed that he had never put any tenant in the property. That he met the defendant in the property and that he came on his own. The witness did not know the name of the farmer, who sold the land to Igwe, his predecessor in title, and where he came from.

PW2, is one Steaviko, whose evidence do not relate to the disputed property.

The last plaintiff’s witness was PW3, who identified the plaintiff as his land lord in the property situate at No. 197, New Ogorode Road, Sapele and the defendant a co-tenant and tendered a receipt for the payment of rent paid to the plaintiff as exhibit B. Under cross-examination, he stated that the defendant sued him to Sapele Area Court, for payment of arrears of rent. He further testified that it was the PW1, who put him in the house as a tenant in 1991. After this witness the plaintiff closed his case.

The defence opened his case and called the DW1, one Solomon Efemini. He knows the PW3 and stated that the defendant gave him a room as a tenant in 1990, in the house a dispute, and he issued him a receipt. Thereafter, he defaulted in the payment of rent and the defendant summoned him to Area Customary Court, Sapele for arrears of rent. The defendant also gave evidence in his defence. He testified that he has been living in the house No. 197, New Ogorode Road, Sapele, for the past 35 years. That the said house belonged to one Alexander, who allowed him to take possession as a result of him helping him (Alexander) to heal his daughter who was seriously sick. The said Alexander is no longer in Sapele. He knows one Efenya, the PW3, who he said he brought to the premises as a tenant. He stated that he put tenants in the other four rooms belonging to Alexander.

Under cross-examination, he admitted that the property is not his own but Alexander’s and neither was the property sold to him. He denied that the plaintiff was the one who permitted him to enter the house.

After the evidence of the parties and their respective witnesses, they were allowed to address the court of which they did. The learned trial Judge in a reserve and final judgment endorsed the plaintiff’s case in its entirety. His words:

“For the fact that the consent of the Governor was not obtained prior to the purported transfer of the property from Mr. Tony Offili to the plaintiff and for the fact that exhibit B was not registered as required by Ss. 15 & 16 of the Land Instruments Registration Law of Bendel State, 1976, I hold that this action is incompetent. It is accordingly dismissed with N1,000.00 costs in favour of the defendant.” See pp. 80 – 81 of the record.”

Being dissatisfied with the above judgment, the plaintiff thereafter appealed to this court and filed an amended notice of appeal containing five grounds of appeal. The grounds of appeal without their particulars are hereunder reproduced thus:”

Ground 1

The learned trial Judge erred in law, in failing to appreciate that the combined effect of the purchase receipt exhibit B and the delivery of the premises to the plaintiff in the presence of the defendant created in the Plaintiff a valid title to the premises.

Ground 2

The learned trial Judge erred in law, in holding that the purchase receipt exhibit B is a document of transfer within the purview of section 22 of the Land Use Act, 1988, requiring the consent of the Governor.

Ground 3

The learned trial Judge erred in law, in failing to consider and evaluate the un-contradicted oral evidence of the plaintiff and his witnesses as to the purchase of the premises.

Ground 4

The learned trial Judge erred in law, in expunging exhibit B which was tendered as a purchase receipt, for non-registration under section 16 of the Instrument Registration Law, 1976 of Bendel State, now applicable to Delta State.

Ground 5

The learned trial Judge erred in law, in holding the plaintiff’s case incompetent:

‘For the fact that the consent of the Governor was not obtained prior to the purported transfer of the property from Mr. Offili to the plaintiff…”

In accordance with the rules of this court, both parties through their respective counsel filed and exchanged briefs of argument. The appellant in his brief of argument which was deemed filed on 13/5/2003, formulated five issues for the consideration of this appeal as follows:

“(i) Whether the agreement (purchase receipt) tendered and marked exhibit B (but later expunged) is a document requiring the consent of the Governor as required by section 22 of the Land Use Act.

(ii) Whether the deed of conveyance (purchase receipt) tendered and marked exhibit B is an instrument requiring registration under section 16 of the Instrument Registration Law of Delta State of Nigeria.

(iii) Whether the Learned trial Judge was right in expunging exh. B, the Deed of Conveyance from the proceedings.

(iv) If the answers to (i), (ii) and (iii) supra are in the negative, whether the learned trial Judge was right in law in holding plaintiff’s case incompetent and for dismissing same on the basis of lack of Governor’s consent and non- registration of exhibit B.

(v) Whether the plaintiff proved his case as required by law given exhibit B and other un-contradicted evidence proffered by him in support of his claim.”

The defendant in his brief of argument formulated two issues for determination, which are herewith reproduced as follows:

“(a) Whether the appellant was able to prove his case that would have made the learned trial Judge give judgment in favour of the appellant.

(b) Whether the learned trial Judge was right to have expunged exhibit B from the record.”

With tremendous respect, I prefer the issues as formulated by the respondent in this case as they are more elegant and encompassing. Nothing would however, prevent me from referring and analysing issues as formulated by the appellant.

The learned Counsel for the appellant submitted that the plaintiff’s case is founded on purchase and delivery of the premises to him, which case was properly fought on the principle in the case of Ogunbambi v. Abowaba (1951) 13 WACA 222/224, where the court held that the payment of the purchase money and delivery of possession creates a valid title under the Native Law and Custom, which is only applicable where the vendor is the bona fide owner of (the property or else the principle of nemodat quad non habet will apply. (Italics mine).

He submitted that Tony Offili is the bona fide owner of the property, hence, he can pass a valid title to the plaintiff upon payment of the purchase price and delivery of possession. He relied on the finding of the trial court that the transfer from Peter Igwe to Tony Offili in 1964, was valid. This finding of fact can only mean that Mr. Tony Offili obtained a valid title over the land in question as per exhibit A. He further submitted that this finding has not been appealed against.

He therefore, concluded that if the transfer to Igwe was valid as per exhibit A, then the plaintiff has successfully traced his root of title to Mr. Tony Ofili, the plaintiff therefore has succeeded in discharging the burden of proof on him. In addition, he submitted that exhibit A is more than 20 years old as at 1991, when exhibit B was made, there is therefore a presumption that the contents are true, he referred to S. 130, Evidence Act, which provides thus:

“Recitals, statements and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of the National Assembly, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”

On the issue No.2, the appellant submitted that the document was properly admitted and it was wrong for the trial court to expunge it from the records. Even though, no consent had been obtained or document registered, it is still admissible that there was a transaction between the plaintiff and Offili (PW1). He further submitted that exh. B is not one of the documents within the purview of S. 16 of the Instrument Registration Law. It was held that a purchase receipt is admissible without registration under the land Instrument Registration Law of Ogun State, which is in pari materia with section 16 of the Land Instrument Registration Law of Bendel State. Adesanya v. Otuewu (1993) 1 NWLR (pt. 270) 414, (1993) 1 KLR 142/158 lines 2 per Olatawura, JCA, as he then was. It is clearly established that exhibit B is admissible as evidence of payment. See also Yaya v. Mogoga (1947) 12 WACA 132 at 106; Coker v. Ogunye (1939) 15 NLR 57 at 59.

Learned Counsel to the appellant then submitted that the purpose of exhibit B is to show that money was paid to the PWI. He therefore urged on us to allow the appeal.

The respondent in his brief of argument, P3 therefore, submitted that the plaintiff conceded that the defendant has been in possession, and having made concession the onus is on the appellant to prove a better title which will enable him get possession of the land.

He referred to section 146 of the Evidence Act and the cases of:

1. Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67.
2. Coker v. Farhat (1953) 14 WACA 216.
3. Danford v. Mcanulty (1883) A.C. 456/462; and
4. Tijjani v. Cole (1958) LLR 58 where the court held:

“The plaintiff representing the Oloto family sought a declaration of title and possession of premises within the Glover Settlement Area in Lagos. The defendant and his ancestors were proved to be on the land for over fifty years. It was held that the defendants being in possession raised a presumption that he was the owner and imposed on the plaintiff the burden of proving that the defendant was not the owner under section 145 of the Evidence Act.” (now section 146).

Respondent’s counsel further submitted that the appellant had failed to plead or adduce evidence of who was the original owner of the land in dispute and neither was any evidence as to the root of title of Igwe pleaded. He therefore, submitted that these failures on the part of the appellant are fatal to the plaintiff’s claim. He referred to the case of Ngene v. Igbo (2000) 4 NWLR (Pt. 651) 131, (2000) 75 L.R.S.N. 451/465 C-l and 466 A-B.

He further submitted that exhibit B cannot confer title on the appellant. That exhibit B being a registrable instrument under section 2 of the Land Instrument Registration Law should be registered as provided in section 16 of the Law before it could be pleaded or admitted in evidence. Hence, having not been registered the trial court was right in expunging it. He further argued that since it was not registered the purported conveyance on the land to the plaintiff is a nullity and any oral evidence of the purchase by the appellant is inadmissible in evidence.

It was the contention of the respondent that if the finding of the trial court had been that the transfer from Igwe to Offili was valid, the inability of the appellant to prove a valid transfer from Offili to him is fatal to his (appellant’s) case. – Registered Trustees of the Diocese of Aba v. Helen Nkume (2002) 1 NWLR (Pt. 749) 726, (2002) 93 L.R.C.N. 19 at 29 A-F.

Finally, he submitted that the failure of the appellant to obtain the consent of the Governor is fatal to exhibit B hence the appellant’s case. He therefore urged this court to dismiss the appeal.

Now, in an action for declaration of title, ownership of land may be proved by any of the following five ways, that is to say:

(i) by traditional evidence;

(ii) by production of documents of title which are duly authenticated;

(iii) by acts of selling, leasing, renting out all or part of the land, or farming on it, or portion of it;

(iv) by acts of long possession and enjoyment of the land; and

(v) by prove 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.

In any of these ways, the onus is always, in my view, on the claimant to prove its title. In cases involving land, particularly where declaration was claimed, the claimant survives and falls on the evidence he presented before the court. He can neither rely on the admissions of the defendant nor on the weakness of the defendant’s case. This is because, a claim for declaration is granted at the discretion of the court – Prince Ngene v. Chike Igbo supra at 462; Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650/652.

In the instant case, the appellant based its title on exhibit A which is the registered deed of conveyance which conferred title on the PW1, i.e. the vendor to the appellant. The validity of the PW1’s title was not in dispute and neither was it contested by the respondent.

The trial court, in its findings held thus:

“In the instant case, the transfer from Peter C. Igwe to Tony Offili in 1964 as per exhibit A is valid in my view because it occurred in 1964, long before commencement of the Land Use Decree in 1978.”

See page 79 line 25 of the record.

This finding of the trial court has not been appealed against. It is trite law that this court has no jurisdiction to review or interfere with the findings of the lower court that has not been appealed against or challenged by a ground or grounds of appeal. The position therefore, remains that this finding is subsisting and valid. See Zacheaus Abiodun Koya v. United Bank for Africa Ltd. (1997) 1 NWLR (Pt. 481) 251, (1997) 1 SCNJ 1. It is therefore, my considered view that the appellant has successfully proved his root of title to the land in dispute and I so hold.

It is clear to me, with due respect, that in an action for declaration of title, plaintiff does not require more than the contents of a registered title to ensure its success. The advantage of a registered title is that the purchaser can discover from the mere inspection of the register whether the vendor has power to sell the land and what is more important, encumbrances are except in the case of what may be classified and termed as overriding interest otherwise a registered owner of land is not affected by notice of any unregistered estate, interest or claim affecting the estate of any previous registered owner, nor is he concerned to inquire whether the terms of any caution or restriction existing before he was registered as owner of such land have been complied with.

A register of title is an authoritative record kept in a public office, of the rights to clearly define units of land as vested for the time being in some particular person or body and of the limitations if any, to which these rights are subject. The object is to some persons dealing with registered proprietor from the trouble and expense of going behind the register in order to investigate the history of their author’s (i.e. vendors) title and to satisfy themselves of its validity. See Gibbs v. Messer (1891) AC 248/254; Onagoruwa v. Akinremi (2001) 13 NWLR (pt. 729) 38, (2001) 6 SCNJ 76/89-90;

Jules v. Ajani (1980) 5-7 SC 96; Adelaja v. Alade (1999) 6 NWLR (Pt.608) 544, (1991) 4 SCNJ 225, and Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137, (1990) 3 SCNJ 131.

In the instant case, if the respondent had made enquiry at the Registrar’s Office, he could have discovered that the registered owner of the land in dispute is PW1 and not Alexander as claimed by him. I therefore, hold that the said Alexander does not have the power to give the defendant the house/property in dispute to the defendant/ respondent as a gift, the principle of nemodat quad non habet applies in this case. The proper person who could sell, assign, or convey the property in dispute is the PW1 and I so hold.

The next question to resolve in this appeal is whether the transfer from the PW1 to the appellant by exhibit B is valid The respondent submitted that exhibit B is not valid as no consent of the Governor was obtained as required by section 22(1) of the Land Use Act, while the appellant submitted that exhibit B is the evidence of payment to the PW2, and that it was not tendered as evidence of title.

22(1) provides as follows:

“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however, without the consent of the Governor first had and obtained.”

It is clear from the above provisions that the section applies to only the land that is subject right of occupancy. The respondent did not tender any statutory right of occupancy to prove that the land in dispute is subject to the statutory right of occupancy in respect of which the Governor’s consent is required.

It was neither pleaded nor proved by evidence that the land in question is situate in urban area. I have carefully and closely gone through the amended statement of defence and evidence adduced at the trial court, from P. 2 to page 64, of the record, and I found it difficult to lay my hand or see where the trial court based its decision/finding that the Governor’s consent is required. I hold therefore, that the finding that the Governor’s consent is required in this case is neither supported by the pleading, nor evidence. It is not the duty of the court to fill the gap that may exist in a parties’ case. If he fails to adduce evidence to prove his case.

It is trite that he who asserts must prove. Since the respondent raised the issue of Governor’s consent, it is his duty to prove that the property in dispute is situate in an urban area and therefore subject to the consent of the Governor.

In this case, the respondent has completely failed in his duty. See section 135 and 136 of the Evidence Act and the case of Alhaji Teniola & Ors. v. Olohunkun (1999) 5 NWLR (Pt. 602) 280, (1999) 4 SCNJ 92.

Be that as it may, it will be necessary for this court to determine whether exh. B is admissible as it was not registered as required by the Land Instrument Registration Law of Bendel State, as applicable to Delta State. The respondent argued that failure to register renders it inadmissible, while the appellant contended otherwise. However, the trial court in its judgment held as follows:

“Exhibit B is the document which evidence (sic) the transfer of the property in dispute from Tony Offili to Emmanuel Atufe the plaintiff in this case. This unregistered Instrument was not only pleaded but tendered in evidence as exhibit B which contravenes section 16 of the Land Instrument Registration Law. Accordingly, exhibit B is hereby expunged from the records of this proceedings having been wrongfully admitted.” See page 80 lines 10 – 16 of the record.

My Lords, similar issue was raised in the case of Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt. 4) 783/790 Bello, JSC (as then he was) held:

“It is trite law that where a purchaser of land or a lease is in possession of the land by virtue of a registered instrument which has not been registered and has paid the purchase money or rent to the vendor or the lessor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase of money or rent.”

See also, Savele v. Sarrough (1937) 13 NLR 741; Ogunbambi v. Abowaba (1951) 13 WACA 222; Fakoya v. St. Paul’s Church Shagamu (1966) 1SCNLR 189, (1966) 1 All NLR 74; Oni v. Arimoro (1973) 3 SC 163; Bucknor-Maclean v. Inlacks (1980) 8-11 SC 1.

In the instant appeal, the appellant pleaded in paragraph 16 of the amended statement of claim as follows:

“The plaintiff avers that he took Tony Offili to his Solicitor, Chief A. Omo-Emakpor, who prepared an agreement of the sale of the building known as No. 197, New Ogorode Road, Sapele. The plaintiff shall at the trial tendered (sic tender) the said agreement as receipt of purchase of the said building from Tony Offili.”

The plaintiff, in his evidence, stated as follows:

“Barrister Emakpor prepared the document of transfer for Mr. Offili and I. I paid the sum of N50,000.00 to Offili as purchase price. This is the document which Chief Omo-Emakpor prepared for me. Mr. Omamogho seeks to tender the purchase receipt. Mr. Odebala says that the stamp duty has not been paid. Purchase receipt dated 19/2/91 is tendered and marked as exhibit B subject to payment of stamp duties by Mr. Omamogho.”

See page 21 line 29 to page 22 line 2 of the record.

It is clear from the above that exhibit B was tendered to show that the purchase price has been paid to the vendor and not as evidence of title. Applying the principles as enunciated by the Supreme Court in the above cited case, I hold that exhibit B is admissible and the trial court was, with respect, wrong to have expunged it from the record.

In addition, I must state here that in a contract for sale of land there are two stages, the contract must pass through:

“1. the contract stage ending with the formation of a binding contract for sale; and

2. the conveyance stage culminating in the legal to the vesting in the purchaser by means of the appropriate instrument under seal. It is only after a binding contract for sale is arrived at that the need to pursue the procedure for acquiring title will arise. That is when the obtainment of the necessary consent to alienate the property or the registration of the deed of assignment/conveyance becomes an issue in order to make the alienation valid. See International ile Industries (Nig.) Ltd. v. Dr. Aderemi (1999) 8 NWLR (Pt. 614) 268, (1999) 6 SCNJ 46/63.”

In the case at hand, exhibit B is valid as between the appellant and PW1, who is the registered owner. The appellant can maintain an action for specific performance or sue for damages in case of a breach by the PW1. See International ile Industries (Nig.) Ltd. v. Dr. Aderemi (supra) at 74 – 75.

Finally, it must be pointed out that the defendant is not saying that he is the owner of the property in question. The alleged owner was never produced at the trial. I have earlier held in this judgment that the finding of the lower court affirming the validity of the title of the PW1, who sold the property to the plaintiff was correct in law, hence, the defendant has no basis of staying in the property unless with the consent of the plaintiff. The respondent cited section 146 of the Evidence Act, however, the plaintiff had proved that he is the owner of the property and not the defendant, as such, the section is of no help to him. I must state, with all force it deserves, that possession, no matter how long, can not found a claim in title against the true owner.

In D.A. Costa v. Ikomi (1968) 1 All NLR 394, per Lewis, JSC, held on Pp. 398/399 thus:

“In our view, the plaintiff’s claim stood or fell on establishing a good title derived from the Oloto family and this she failed to prove whilst to the contrary the defendant had established that he had a good title from tile Oloto family. The plaintiff’s long possession was, therefore, only that of a trespasser or a squatter and would not enable her to succeed against the true owner, who was in fact proved to be the defendant… possession may under section 145 of the Evidence Act give a presumption of ownership, but it does not do more and cannot stand when another proves a good title…”

Again, in Dokubo v. Omoni (1999) 8 NWLR (Pt. 516) 647, (1999) 6 SCNJ 168, per Onu, JSC, at p. 179 held as follows:

“The fact that a person has acquired rights of possession over parts of a piece of land in dispute will not affect the right of any other person to seek a declaration of title to the whole piece of land… The grant was for a limited purpose… could never ripen to an absolute ownership of the land adverse to the ownership of the grantor.”

Consequently, long and adverse possession of land cannot found a claim in title against the true owner.”Consequently, I hold that this appeal is meritorious and is allowed. The judgment of the trial Court dated 26th day of September, 2000 is hereby set aside, and in its stead, I order as follows:

1. That the plaintiff is both the legal and equitable owner of the building known as No. 197, New Ogorode Road, Sapele as against the defendant.
2. An order of perpetual injunction restraining the defendant, his servant, agents and privies from altering, re-constructing the building and premises know as No.197, New Ogorode Road, Sapele.
3. An order of injunction restraining the defendant from holding himself out as a Landlord of the building known as No. 197, New Ogorode Road, Sapele, and from collecting rent from any person staying in the said building or renting the premises to any person or persons for any use whatsoever.
4. Reliefs b, c, and d as contained in the amended statement of claim are hereby, refused as there was no clear evidence to support and prove same.
5. The appeal is accordingly allowed and the judgment and order as to costs of the High Court are set aside and judgment is entered therein for the plaintiff.The appellant is entitled to his costs in the High Court which I assess at N1,000.00 and to his costs of this appeal which I assess at N3,000.00.”

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Other Citations: (2003)LCN/1514(CA)