Mr. Gbenga Famurewa V. Mr. Aremu Omokayode Anjorin & Ors (2016)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A.

This appeal is against the judgment of the Lagos State High Court delivered by HON. JUSTICE Y. O. IDOWU on the 14th May, 2010 wherein the claim of the 1st – 5th Respondents for declaration of title to land was granted and the Appellant dissatisfied with the said judgment filed a Notice of Appeal dated 24/05/2010 on the 27/05/10 setting out 2 grounds of appeal.

The 1st – 5th Respondents as claimants by way of an Amended Writ of Summons and Amended Statement of Claim sought for declaration of title to a piece of Land at Addo village of Eti – Osa Local Government Area of Lagos State. The Appellant was joined after the initiation of the suit and with issues joined, the matter proceeded to trial after which the reliefs of the 1st – 5th Respondents were granted. Aggrieved with the said judgment, the Appellant filed a Notice of appeal challenging the decision.

The Appellant’s Brief of Argument settled by Temitayo Ojeleke was filed on the 4/2/11 deemed on the 12/2/16. A reply brief was filed on the 11/4/16. The 1st – 5th Respondents’ Brief of Argument settled by Clement

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Onwuenwunor is dated 21/3/2016 filed on the 22/3/16. The Appellant distilled 3 issues for determination namely:

1. Whether the 1st 5th Respondents (claimants in the lower Court) pleaded and proved their root of title to the parcel of land for which declaration of title is sought.

2. Whether the 1st 5th Respondents had identified the land in dispute with sufficient certainty to justify the grant of a declaration of title.

3. Whether the evidence adduced by the 1st-5th Respondents justifies the grant of a declaration of title to land.

The 1st – 5th Respondents did not distill any issue for determination but adopted the issues set out by the Appellant. The Court observes that there are two grounds of appeal which generated 3 issues for determination and it is trite that a party cannot formulate issues for determination more than the number of grounds of Appeal as was done here. See TERIBA V ADEYEMO (2010) LPELR – 3143 (SC) wherein the apex Court held thus:

“The settled principle is that it is not proper to proliferate issues for determination to the extent of their outnumbering the grounds of appeal. This is because issues

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must of necessity be predicated on or arise from grounds of appeal; they can only be either equal to or less than the grounds of appeal and no more. Thus while two or more grounds of appeal can, by some dexterity, be considered in an issue, it is not desirable to split a ground of appeal into a number of issues.”

The apex Court in a long line of authorities settled the issue of proliferation of issues and it was noted in the case of PILLARS NIG. LTD V MRS HANNAH DESBORDES & ORS (2009) LPELR 8204 (CA) thus:

“This Court and the Supreme Court have on several occasions condemned the proliferation of issues in briefs of argument. See CHEVRON NIG. LTD V ONWUGBELU & ORS (1996) 3 NWLR (PT.437) 404; OMEGA BANK V O.B.C. LTD (2005) CLA 1; AGBAOSO V EHIKOREFE (1997) 4 NWLR (PT.502) 630; ALI V C.B.N. (1997) 4 NWLR (PT.498) 192; PADAWA V JATAU (2003) 5 NWLR (813) 247. The issues formulated in brief of Argument and not coincide with the number of grounds filed. In fact, the Court can accept equal number of grounds and issues, but where the issues formulated for determination is more than the grounds of appeal it is undesirable and unacceptable in the

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appellate Courts. The obvious reason is that whilst grounds of appeal complain on specific aspects in the Judgment of the Court, issues deal with a number of agglomeration of grounds. The Supreme Court succinctly set out their attitude to proliferation of issues in AGU v IKWIBE (1991) 3 NWLR (Pt.180) 385 where they held:

“The Court has counseled counsel formulating issues on several occasions to ensure always that the formulation of issues for determination is not merely consistent with and within the scope and confines of the grounds of appeal relied upon, but also that they should not be prolix and proliferate as to be more in number than the grounds of appeal on which they are based. This is because whereas an issue to be determined can take into consideration a number of grounds of appeal, it is not desirable to split a ground of appeal into a number of issues, see A.G. BENDEL STATE V AIDEYAN (1989) 4 NWLR (PT.118) 646; UGO v OBIKWE (1999) (PT.99) 566; ADELAJA V FANOIKI (1990) 2 NWLR (PT.131) 137.”

Considering issue three would have meant repeating the findings under issue one, that is unnecessary in this circumstance, see PADAWA v. JATAU

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(supra). Merger and or striking out are options open to the Court in such situations. Hence, I strike out issue 3 which is an unnecessary repetition of issue one and which has also been adequately covered by issue one. I also adopt for determination the Appellant’s issues one and two but they shall be considered all at once.

ISSUES

1. Whether the learned Trial Judge correctly evaluated the facts Pleadings and Evidence before the lower Court, in holding that the Respondents (claimants in the lower Court) satisfied the Court as to their roots of title to the land and thereby established their title to the land in dispute.

2. Whether the 1st-5th Respondents has identified the land in dispute with sufficient certainty to justify the grant of a declaration of title.

It was submitted by the Appellant under Issue one that though the Respondents sought title to the land in dispute through one Madam Abibatu Ogundele, their pleadings never showed how the said land was acquired, inherited or purchased by the said Madam Abibatu. That based on the authority of NWOKOROBIA v. NWOGU (2009) 10 NWLR (PT.1150) 553, the Respondents did not successfully plead

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their root of title to the land and that the defect in the amended statement of claim of the Respondents cannot be remedied on appeal, cited LUKE v PDA (2010) 5 NWLR (PT.1188) 604. The Appellant further contended that the evidence of the Respondent witnesses at trial also fell short of what was required to prove the Respondents title to the land and failure to plead their root of title appropriately or establish cogent evidence in support is fatal to the Respondents case, he relied on UKUAEGBU V NWOLOLO (2009) 3 NWLR (PT.1127) 194, ORLU v GOGO ABITA (2010) 8 NWLR (PT.1196) 307.

However, the Respondents counsel was of the opinion that the Appellant’s case at the trial Court had nothing to do with the root of title of the Respondents but the identity of the disputed land which he claimed was different from the Appellant’s own, thus the Appellant cannot now change his case on appeal, referred to ENTERPRISE BANK LTD V AROSO (2014) 3 NWLR (PT.1397) 256, ADEGOKE MOTORS LTD V ADESANYA (1989) 3 NWLR (PT.109) 250. In any case, the Respondents submitted that paragraph 5 of the Amended Statement of Claim shows that Madam Abibatu inherited the land in dispute from

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her father. The Respondents further submitted that since the Appellant did not deny the title of the Respondents but merely claimed that the Respondents land is different from that in dispute, the Respondents had no duty to prove the said Madam Abibatu Ogundele’s title, relied on ANUKAM V ANUKAM (2008) 5 NWLR (PT.1081) 455. The Respondents also submitted that clearer details about the discovery of the land in the original Statement of Claim were inadvertently omitted during amendment of the statement of claim and that the original Statement of Claim can be referred to assist the Court in doing justice in this Appeal, referred to the case of UZODINMA V IZUNASO (No. 2) (2011) 17 NWLR (PT.1275) 30. That based on the Respondents claim to title to the land, they had sufficiently discharged the burden placed on them in establishing their claim through the preponderance of evidence when they showed an unbroken chain of succession by inheritance and continuous exclusive possession, referred to IDUNDUN V OKUMAGBA (1976) 1 NWLR 200, NWOKOROBIA v NWOGU (2009) 10 NWLR (PT 1150) 553. The Respondents also contended that because of their compelling evidence before the Court,

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the trial Court was right to award judgment in their favour and referred to AYUYA V YONRIN (2011) 10 NWLR (PT 1254) 135. With respect to the alleged unpleaded, contradictory and hearsay testimonies of CW3 during trial at the lower Court, the Respondents submitted that the facts supporting the testimonies were pleaded in the Amended Statement of Claim whose evidence was brought in as a result of the death of the Respondents intended 3rd witness; that traditional evidence is an exception to hearsay rule citing FAYEMI v. AWE (2009) 15 NWLR (PT 1164) 315. Respondents further argued that based on Section 115 (3) and (4) of the Evidence Act 2011, a witness is allowed to state the source of information not within his personal knowledge.

On issue 2, the Appellant submitted that though the features of the land were pleaded in the Respondents amended statement of claim, none of the survey plans tendered before the Court corresponds with the description. That a Court cannot grant a declaration over an imprecise parcel of land, cited ADUA v UDO ESSIEN (2010) 14 NWLR (PT.1213) 141. That a survey plan must be in line with the pleadings of the party relying on such a

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survey plan, relied on MADAM SALAMI v. OKE (1987) 4 NWLR (PT 63) 1. The Appellant further submitted that PW1 gave no direct credible evidence of the identity of the land and that there were contradictions between PW2 and PW3’s testimony. He further submitted that the pleaded boundaries of the land is what is reflected in Exhibit. B (Survey Plan No.LU/LA/6877/84, the same survey plan the Respondents alleged was defective. Yet again, the Appellant argued that Exhibit C (Survey Plan No. CD/LAG/DISP/012/2005) cannot in law be regarded as an amendment to Exhibit B because no evidence was led to show that Exhibit C was made in compliance with the Survey Regulations. Appellant further argued that there is also nothing on the face of the said Exhibit C to show that it is an amendment of Exhibit. B and consequently, it is a distinct and separate survey plan. He therefore submitted that there was no definite certainty as to the description of the land and the Court ought not to have granted title to the Respondents.

The Respondents counsel however contended that the land to which they sought a declaration of title was sufficiently described in their pleadings at

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the lower Court which was not controverted by the Appellants. In addition to this the Respondents submitted that the evidence of CW3 (Pastor Oduniyi) also ascertained the land and any contention by the Appellants that the testimony does not assist the case of the Respondents because it is hearsay should be disregarded because the evidence accords more with the principle of law enshrined in NWOKOROBIA v NWOGU (2009) 10 NWLR (PT 1150) 553 (sic). On the issue of the survey plans, the Respondents first of all restated the position of the law that a reliable way of establishing the identity of a land in dispute is through a survey plan showing clearly the boundaries thereof, referred to OKEDARE V ADEBARA (1994) 6 NWLR (PT.349) 157, PWAJOK V NYAM (1994) 2 NWLR (PT 324) 81, and that where there are survey plans, a visit to the locus in quo will be unnecessary, citing ATIDE ARABE V OGUNBIYI ASANLU (1980) 5/7 SC 78. They therefore submitted that based on the survey and composite plans tendered before the Court, the Respondents had sufficiently showed that they were entitled to the grant of the Certificate of Occupancy. Furthermore, the Respondents relied on the

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authority of AKPAN V REGISTERED TRUSTEES OF QUA IBOE CHURCH OF NIGERIA (2001) 15 NWLR (PT.736) 328, AKPAN V OTONG (1996) 10 NWLR (PT 476) 108 to submit that it is not necessary that a survey plan must be tendered by the surveyor who prepared it. Furthermore, the Respondents contended that the argument of the Appellant that the boundaries pleaded in the amended statement of claim and that in the survey plans were different is false. That, where two survey plans filed by the parties are contradictory, a composite plan becomes imperative and which requirement the Respondents complied with. They referred to NWOKAFOR V AGUMAGU (2009) 3 NWLR (Pt.1129) 653 and argued further that the contention that the Respondents’ survey plan lacks the features of a survey plan as set out in the Survey Regulations should be discountenanced as it was not argued at the trial Court and is not part of the judgment appealed against, relied on SOCIETY BIC S.A. V CHARZIN IND LTD (2014) 4 NWLR (PT 1398) 497. The Respondents therefore submitted that from the entirety of the evidence before the trial Court the Respondents established the identity of the land.

In his reply brief, the

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Appellant submitted that there is no specific pleading of fact or credible evidence to show that the specific land in dispute was inherited from Madam Abibatu’s father or showing the persons the land was purchased from. That he had joined issues with the Respondents with respect to title of the disputed land and as such the Respondents had the burden of proving the facts they pleaded. The Appellant also submitted that there can be no reference to the original Statement of Claim since it had been amended and referred to BURAIMOH v ALEJO (2012) LPELR 14322 (CA) especially because at the time the Appellant was joined as a party, the amended statement of claim was already in existence. Finally, the Appellant submitted that the Court ought to have dismissed the case as the oral testimony of the Respondents witnesses was at variance with the survey plans tendered relied on DUDU ADDAH V UBAN DAWAKI (2015) LPELR – 24266 (SC).

RESOLUTION:

Going by the arguments of Appellant, the challenge is fundamentally on evaluation of evidence, root of title and identity of the land. It is trite that in a claim for title to land the burden is on the Claimant to prove his

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case by credible evidence to be entitled to a declaration of title to land, see DIKE v OKOLOEDO (1999) to NWLR (PT.623) 359 which held as follows:

“It is well settled that in a claim for the declaration of title to land, a plaintiff has the burden of proving his case on his own evidence and cannot rely on the weakness of the defendant’s case. If that burden is not discharged, the weakness of the defendants case will not help him and the proper judgment will be for the defendant.

In a claim for declaration of title to land in a civil claim and just like other claims, the standard of proof is on the preponderance of evidence or balance of probabilities, see EYA V OLAPADE (2011) LPELR – 1184 (SC), WOLUCHEM V GUDI (1981) 5 S.C. 291.

It is also settled that there are 5 ways of proving title to land which have been established in a long line of authorities, see THOMAS NRUAMAH & ORS V REUBEN EBUZOEME & ORS (2013) LPELR – 19771(SC) where the Court held as follows:

“In an action for title to land, it has been long settled that there are five methods by which title to land may be proved. They are:

a. by traditional

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history

b. by production of documents of title duly authenticated and executed,

c. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership,

d. By acts of long possession and enjoyment,

e. 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 also IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227 and ZACHEUS FALEYE & ORS V MR. RASHEED DADA & ORS (2016) PLELR – 40297(SC).

Based on the pleadings of the 1st – 5th Respondents, they called three witnesses and tendered several documents as Exhibits. The Appellant testified for himself and tendered Exhibit R (Survey Plan) and Q- Q3 (receipts from Oketiri family). I perused submissions of counsel on both sides along the pleadings and evidence before the trial Court and it appeared strongly that this appeal is a case properly fit for order of non-suit. In order to get a clear direction and relying on EGBUCHU v CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR –

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40053 (SC), parties were recalled to address the Court on the propriety of making an order of non – suit in this case. See also ADELEKE V RAJI (2002) 13 NWLR (PT.783) 142 and AMINU V ALASADE & ORS (2010) LPELR – 3766(CA).

In his submissions on whether the Court should non- suit the case of the Respondents or not, the Appellant submitted that an order to non suit is not applicable in this case and gave reasons as follows:

i. That it is his contention that the claim at the trial Court totally failed and referred to OLAGBAMIRO V AJAGUNGBADE (1990) LPELR ? 178/1987 (SC); YESUFU v ACB (1976) 4 SC 1. That the root of title was not properly pleaded, thus the case ought to be dismissed relying on MARCUS UKAEGU V NWOLOLO (2009) 3 NWLR (PT.1127) 194 at 220.

ii. That an order of non suit will work injustice on the Appellant since there is no counter claim.

iii. That the Appellant is entitled to take benefit of fundamental defects on the case of the Respondents, relied on ODIETE V OKOTIE (1972) SC 83; IROAGBA v UFOMADU (2009) 11 NWLR (PT.1153) 587 at 600; ONUOHA NWOKOROBIA V DESMOND NWOGU (2OO9) 70 NWLR (PT.1150) 553 at 573.

iv. Failure

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of the Respondents to clearly identify the land in dispute.

v. There is no burden of proof on the Appellant relying on DADA V OGUNREMI (1967) NMLR 787; KODINLIYE v ODU (1935) 2 WACA 336; AND DAWODU v GOMEZ (1947) 12 WACA 151.

vi. That it is the discretion of the Court to make an order of non suit and therefore it should only be made such as not to work injustice on the Appellant, cited ADEBOANU MANUFACTURING INDUSTRIES v. ADEDEJI & ANOR (2000) LPELR ? 10721 (CA).

viii. That the fact that there was no declaration of title in favor of the Appellant does not entitle the respondents to an order of non – suit, relied on KODINLIYE V MBAFENO ODU (SUPRA).

The Appellant finally urged the Court not to make an order of non suit.

The Respondents on their part commended the Court for considering the order of non suit which accords with good law and practice and relied on CRAIG V CRAIG (1966) 1 ALL NLR 173. They argued that the overriding principle is the interest of justice. Relied on IKONNE V EZIEME (2011) 11 NWLR (PT. 1259) 536 at 567.

They highlighted certain features of the claim which makes the order of non-suit most desirable.

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They reasoned that the Appellant did not challenge the title of the Respondents or traditional history but contested the location or identity of the land and referred the record. Furthermore, that there was evidence that the Respondents are the 4th generation of the descendants of Madam Ogundele and it would amount to injustice if the Respondents are not allowed to put forward the case properly as more evidence shows that judgment cannot be given to the Appellant. That the Respondents should not be shut out, they urged the Court to make the order of non suit, relied on OKPALA V IBEME (1989) 2 NWLR (PT.172) 208.

They further submitted that the case of OLAGBEMIRO supra and ODIETE V OKOTIE (SUPRA) supports the making of the order of non suit in the circumstances of this case and urged the Court to so order.

The 6th – 8th Respondents did not file any brief in respect of this appeal being appellants in a sister appeal.

There are settled principles or conditions that can necessitate the Court non-suiting a claim, the apex Court in EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR – 40053(SC) held as follows:

“An order of non-suit

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will be made in the following circumstances:

a. Where the plaintiff has not failed in toto or entirely to prove his case;

b. Where the defendant is not in any event entitled to the Court’s judgment; and

c. Where no wrong or injustice to the defendant would be caused by such order.

See OLAGBEMIRO VS AJAGUNGBADE III (1990) 3 NWLR (PT.130) 37 @ 42, AKINSUROJU VS JOSHUA (1994) 4 NWLR (PT.187) 542 @ 590 – 551 H – A; OKPALA & ANOR VS. IBEME & ORS (1989) NWLR (PT.102) 208.”

The appellate Court can only make an order of non suit only where the trial Court has the power to so order, see ZACCHEUS FALEYE V ALHAJI LASISI OTAPO (1995) LPELR – 1235(SC). In this case the trial Court has the power to non suit donated by Order 34 of the Lagos State High Court (Civil Procedure) Rules 2004.

In a declaration of title to land the apex Court on when to non suit held thus:

A nonsuit in a claim for a declaration of title to land postulates that the case of the plaintiff on the evidence has some merit showing that the plaintiff is entitled to land claimed or at least a part thereof but owing to some technical fault or defect in the

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handling or presentation of the case, the plaintiff has been unable to discharge to the satisfaction of the Court the heavy burden placed upon him, and at the same time, be left open to enable the plaintiff, if he so wishes, to relitigate the issue and make good the technical fault or defect which was responsible for the plaintiff’s failure on the previous occasion.”

See also NKANU & ORS v ONUN & ORS (1977) LPELR- 2044 (SC).

Furthermore, the discretion of whether to dismiss a suit or non suit it depends on the particular set of facts of each case, see OLAGBEMIRO supra and to dismiss the claim is where the plaintiff has totally failed to prove his case and or where it will amount to injustice to non – suit. Did the 1st – 5th Respondents fail totally before the trial Court? The trial Court believed the evidence of the 1st – 5th Respondents and gave them judgment. There is indeed evidence before the Court to find that the case of the 1st – 5th Respondents did not totally fail. The Appellant in this case did not join issues with the 1st – 5th Respondents on the identity of the land going by his pleadings. He also traced his title to a different

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family and tendered a survey plan. There was a survey plan tendered by the 1st and – 5th Respondents. The pleadings of the claimants relied heavily on traditional history, there is some evidence of it and that of long possession. Definitely, the Appellant does not deserve judgment going by the case of the parties before the trial Court and on the other hand, the 1st – 5th Respondents had defects that would also not allow the Court to enter for judgment for them due to deficiency in evidence and handling of documentary evidence. It will be unjust to dismiss the claim of the Respondents. There was a conflict as to the exact area that the Appellant encroached which was explained by the composite plan made by the Respondents but the trial judge misdirected itself in law, see UGBODUME V ABIEGBE (1991) LPELR – 3316 (SC) where the apex Court held as follows:

A non – suit is not a favour to either side. It is not meant to rob a party of a technical success but it is based on the foundation of justice itself that the door of temple of justice should not be shut against a party who has not totally failed to prove his case. Sometimes the fault is that of the

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trial judge who has misdirected himself in law. The overall essence is to see that justice is done and that opportunity be given for another trial.

It is trite that the order of non suit is no longer a technical issue but one that is meant to achieve substantial justice between contending parties when upon a calm and full view of the scale of justice, the Court can say that no side deserves judgment because of a defect in the claimants’ case. But for the defect in the claimants’ case, there was some evidence which is insufficient for a declaration. The 1st – 5th Respondents did not define with clarity whether the land upon which the Appellant encroached is the portion purchased by Madam Ogundele or which was inherited. While there is evidence of inheritance and long possession, it was not fully defined. A declaration cannot be made on admission by the adverse party. A claimant must fully satisfy the Court by credible evidence.

Will the order occasion a miscarriage of justice on the Appellant? I do not think so even though the Appellant is of the opinion that he is entitled to judgment. He dwelt so much on identity of the land and also tendered

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a plan but his pleadings were devoid of adequate traverse and cannot be entitled to judgment. The Appellant did not show how the order would occasion injustice to him. I therefore hold that no injustice would be occasioned to the Appellant if the Court proceeds to make the order of non – suit in this appeal. The effect of the order is to terminate the proceedings. Appellant would in the case of relitigation be given a hearing. He is not foreclosed.

On the whole therefore, it will be in the interest of justice to make an order of non – suit in this case. The Court is hereby making the order of non – suit in place of the judgment of the trial Court in favour of the 1st – 5th Respondents.

The judgment of the trial Court delivered on the 14th May, 2010 is hereby set aside and in its place an order of non- suit is made.

Each party to bear its cost.

Other Citations: (2016)LCN/8915(CA)