Mrs. Florence Mosunmola Otunla & Ors V. Madam Idowu Ogunowo (2003)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
This is an appeal against the judgment of Honourable Justice B. O. Martins of the Lagos State High Court delivered on 12th July, 1988.
The claim of the appellants who at trial -were the plaintiffs against the respondent as defendant were for:
(i) Possession of portion of the property situate, lying and being at
(ii) No. 148 Agege Motor Road, Mushin, with the building thereon.
(b) N1 ,000.00k damages for trespass and
(c) Injunction restraining the defendant her agents and/or servants from further acts of trespass on
said property.
Pleadings were ordered, filed and exchanged.
The appellants called three witnesses while the respondent gave evidence on her own and called one witness in proof of their case and defence respectively.
The appellants’ case as contained in their statement of claim is that they are the surviving children of late Ogun Alade Opanuga who died intestate many years ago. The respondent is a surviving sister of the deceased. The property situate, lying and being at No. 148 Agege Motor Road, Mushin was granted to their deceased father in or about 1948. It was a customary grant. Late Ogun Opanuga erected a house on the said land before his death. The property devolved on appellants on the death of their father by virtue of native customary right of succession. Out of sympathy, appellants allowed the respondent to live in one of the rooms. Subsequently, respondent abused this generosity by erecting additional structures on the property without the knowledge and/or consent of the appellants.
Respondent continued to add more structures on the property inspite of protests and warnings that she must desist from so doing.
Eventually, respondent built up the whole available space within the property. Respondent started encroaching on the main house built by her late brother and constituted herself a nuisance. Appellants further averred that they caused respondent to be written letter reference No. AA/1/1/16/81 dated 20th July, 1981 by their solicitors.
Inspite of this letter, respondent continued in possession with various acts of trespass and nuisance.
It is also appellants case that by a formal lease dated 13th March, 1974 and registered as No. 34 at page 34 in Vol. 1448 of the register of Deeds of Lagos State they became leasees of the very property that had devolved on them by right of succession. They pleaded to rely on the survey plan attached to the registered deed of lease.
The case of the respondent, on the other hand, is that whereas it is true that her late brother, Ogun Alade Opanuga had acquired a grant of land from the Ojuwoye communal land owners Mushin, the deceased never built the said piece of land before his death. She averred in her statement of defence that sometime in 1985, she cleared a bushy strip of land by the side of her later brother’s piece of land.
She also averred that the Ojuwoye communal land owners challenged her stating that she was not the lawful owner of the cleared land. The communal owners also stated on the occasion that the land was Whether the appellants had proved their claim to possession of the open space by the side of No. 148 Agege Motor Road, Mushin Lagos or not.
Whether appellants having put their title in issue from the nature of the claim, had successfully established their not owned by one Ashola, a neighbour as well. Respondent appealed to the Ojuwoye communal owners of the land who were prepared to and secured from them a grant over the land she cleared. She secured the grant of the lease which commenced in 1956 for an annual rent of N2.10s through the influence of one Omoputa, now deceased.
Respondent paid this annual rent till 1968. The strip of land measuring 25ft by hundred ft was sold to her in 1969 for a price of N250. Respondent pleaded to rely on the record of the rents she paid and the purchase receipt for the sum of N250. It is respondent’9191s further case that she caused the land No. 148B Agege Motor Road to be surveyed in 1981 by one licensed surveyor by name Mr. M. A. Koiki. The surveyor produced survey plan No. MK 194/81.
Respondent also averred that she built on the land she cleared, rented, and acquired from its owners in 1964 without any opposition from either the appellants or any other person. Respondent averred, as well, that she acquired a certificate of occupancy in respect of the land. It is also her case that she never collected rent in respect of her late brother’s house and that she paid the tenement rates and other expenses in respect thereto from her own pocket; that her own property was renumbered No. 238 Agege Motor Road from the 148B it used to be by the Mushin Local Government vis the council’s letter dated 30th March, 1987. She has a demand note dated 29th April, 1987 in respect of the renumbered property for a N1,000 tenant rate. The receipt for the payment of this sum, respondent averred had also been obtained.
The matter went through full trial at the conclusion of which the court in considered judgment dismissed the claim of the appellants in its entirely. They are dissatisfied with the decision and have appealed to this court.
Parties have filed and exchanged briefs of arguments. At the hearing of the appeal, these briefs were adopted as pressing the cause of either party in the resolution of the issues raised in the appeal.
The appellants’ brief contains two issues for the determination of the appeal.These are:
(i) Whether the appellants had proved their claim to possession of the open space by the side of No. 148 Agege Motor Road, Mushin Lagos or not.
(ii) Whether appellants having put their title in issue from the nature of the claim, had successfully established their title to the land in dispute.
Respondent has also formulated two issues in her brief for the determination of this appeal. The issues are:-
(i) Whether from the pleadings of the parties and the evidence adduced in support thereof the appellants have successfully proved their claim as to the particular portion within the property known as 148 Agege Motor Road, Mushin allegedly trespassed upon by the respondent.
(ii) Whether the appellants have been able to establish a better title to that of the respondent in respect of the land in dispute viz 148B Agege Motor Road, Mushin.
In arguing the appeal, appellants’ counsel submits in the brief that from the evidence adduced in proof of their case, all the essential ingredients for establishing ownership had been placed before the court. The evidence of PW1 at page 52 line 33 to page 80 lines 1-5 and page 85 lines 24-25 of the record against the testimonies of DW1 at page 86 lines 27-30 to page 87 lines 1-2 and lines 18-22 and DW 2 at page 89 lines 89 lines 25-30 and page 91 lines 26-30 and page 92 lines 11-19, if calmly evaluated, leads to the irresistible conclusion that appellants have established their claim.
It is submitted that it was for the respondent to prove that the piece of land she claimed i.e. No.148B was outside the land shown on exhibit B. Respondent had failed to call any member of the Ojuwoye communal land owners whom she said gave her the grant as witness.
Appellants further submit that PW3’s testimony clearly showed that respondent as having told the Ojuwoye communal land owners that her late brother gave her the land in dispute, a fact that remains uncontroverted. With same Ojuwoye communal land owners making an earlier grant as manifested by exhibit B, respondent could not have been granted what the grantors never had. It is to be noted especially, appellants submit, there was no vacant space between No. 148 and 150 Agege Motor Road for it to be a different parcel from the one granted their late father.
Appellants submit that since they have proved ownership of the land they claim, they must be deemed to be in possession. They rely on the decision in Aromire v. Awoyemi (1972) 1 ANLR (Pt.1) 101 at page 113.
Appellants submit also that when exhibit B was made in 1974 there was no building between Nos.148 and 150 Agege Motor Road. Exhibit F on the other hand was made in 1981 and in respect of an existing building. Exhibit F was in respect of 148B clearly showing that it has been interposed between No.148B and No. 150 Agege Motor Road, Mushin. It became respondent’s burden to prove that No. 148B was not part of No. 148 and this burden respondent failed to shoulder.
Appellants also fault the trial courts finding that respondent had been in possession of the land in dispute since 1969 as there was no evidence to reach this conclusion on. The receipt dated 1969 evidencing payment of rent by respondent cannot cloth respondent with possession. Appellants, in the light of the evidence before the court, submit that on the whole the lower court’s judgment be set aside and, having established by evidence to be entitled to the land in dispute they should be declared its owners.
Respondent’s counsel commenced argument in respect of her issues by noting that the appellants’ 1st and 2nd claims are contradictory. Counsel contends that a claim for recovery of possession postulates that respondents were not in possession at the time of the action they seek to be restored in possession of the land.
The claim for trespass on the one hand, respondent further submits, presupposes that appellants were in possession at the time respondent committed the trespass. Respondent has referred to Aromire and Ors. v. Awoyemi supra. She asks that we invoke section 16 of the Court of Appeal Act to strike out the appellants’ unlawful reliefs for the inconsistency.
Respondent proceeded into the merits of the appeal by submitting that since both parties are claiming possession and entitlement to the land in dispute, whoever proves a better title will therefore succeed. The appellants in proof of their claim must rely on the strength of their case. Respondent’s duty was only to defend the case. The following have been cited by counsel in support of these principles: Kodilinye v. Odu (1935) 2 WACA 336 and Obiaso v. Okoye (1989) 5 NWLR (Pt. 119) 80. Respondent contends that going by the evidence adduced by the appellants, the court was right to have rejected appellants’ claim.
To start with, exhibits C-C 6 which are receipts of ground rents paid to the Ojuwoye family by the appellants’ deceased father and from whom the property at No. 148 Agege Motor Road devolved on appellants were made between 1971-1984. This respondent submits was long after the death of appellants’ father in 1948. Furthermore, whereas exhibits C talks of a parcel of land 15 metres x 30 metres, the other exhibits talk of a parcel of 50 metres by 100 meters dimension. By these exhibits, the parcel of land claimed has unascertainable dimensions. It was this land as defined by exhibit B that appellants in their own right secured a lease for in 1974.
The instruction to survey the land was given by one Mr. Shonusi, PW 2, a total stranger. Respondent submits also that the testimony of PW3 was very revealing.
Firstly, PW 3 testified that exhibit B that he executed was in respect of No. 145 Agege Motor Road and that there was no property known as No. 148 then. PW3 also admitted while being cross-examined that respondent was granted land by his family on which she erected No. 148B which is the subject matter of the current dispute. Also, respondent was able to identify her land herself and by virtue of exhibit F this parcel differed from the land which her deceased brother was granted and which she secured by helping to develop. It is submitted that the testimony of PW3 that respondent had told the Ojuwoye communal land owners that it was her deceased brother who gave her the land they subsequently granted to her was hearsay and a lie. She never said so and the court was right to have ignored the testimony.
Relying on Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 at 550, respondent submits that the lower court could not have found for the appellants over a parcel of land the identity of which had not been established by its claimant. The finding of court at page 117 was therefore correct.
Respondent also considered that she has been in effective and undisturbed possession of the land in dispute from 1956 to 1969.
She acquired and developed the land. Her source of title has been disclosed as the very source from whom her deceased brother secured a grant. It is further contended that section 16(2)(a), section 17 and section 21 of the Limitation Law, Cap. 117, Laws of Lagos State, 1994 has extinguished appellants right.
Finally, on the authority of Mogaji v. Odofin (1978) 4 SC 91 at 96 and 97 and Kareem v. Ogunde (1972) 1 ANLR (Pt.1) 73, the imaginary scale having tilted in favour of the respondent, it is submitted, the lower court could not have reached a different verdict.
We are urged to dismiss the appeal.
This appeal has brought into focus the correctness or otherwise of the lower court’s findings of fact. Evaluation of evidence concluded by the court is the principal issue upon which the determination of the appeal hinges.
The respondent in this appeal must be said to be on a firm terrain when her counsel submitted that the appellants’ burden it was to prove what they claimed. That is the import of S. 135, S. 136 and S. 137 of the Evidence Act. An endless list of judicial authorities conveys this import. Thus, the general rule is that a plaintiff must succeed on the strength of his case alone. The sole exception is that a plaintiff may use facts in the defendant’s case that support his case. Otherwise, he is not allowed to rely on the weakness of his adversary’s case to succeed in his own. See Enigwe v. Akaigwe (1992) 3 NWLR (Pt.225) 505 SC; Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393 SC and Awote v. Owodunmi (No.2) (1987) 2 NWLR (Pt.57) 366 Sc.
In deciding between parties, a Judge who had received evidence has a duty of weighing on the judicial imaginary scale the evidence of both sides to decide on whose side the balance tilts. The party in whose favour the scale tilts secures the court’s verdict. Respondent is right in his citation of Mogaji v. Odofin supra in making this same point. See also Balogun v. U.B.A. Ltd. (1992) 6 NWLR (Pt.247) 336 and Abel Nkada and 2 Ors. v. Ozunke Obiano (1993) 4 NWLR (Pt.287) 305.
Respondent urged us to dismiss appellants’ claim because it has an enormous measure of inconsistency. He cannot necessarily be obliged. Where a plaintiff had made, as the appellants in the instant case, a claim for trespass and injunction, title to the land had been put in issue see Pius Amakor v. Benedict Obiefuna (1974) 1 All NLR (Pt.1) 119; and Atolagbe v. Shorun (1985) 1NWLR (Pt.2) 360.
It does follow that appellant’s duty it was to establish a better title to the one enjoyed by the respondent who was in undisputed possession of the land in dispute. See Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182 and Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527.
Did the appellants discharge the burden which the law placed on them? The lower court held they did not. Appellants have urged us to hold otherwise.
It was the lower court’s primary duty to evaluate the evidence adduced by parties at trial and to ascribe probative value to such evidence. After all, the court had the singular opportunity of hearing and observing the witnesses in the course of their testimonies.
Because at this level we never had similar opportunity, as a rule we as a court are very slow to disturb the trial court’s finding of fact.
We only interfere where the trial court had failed to take advantage of having seen and heard the witnesses or had misdirected itself and arrived at a perverse conclusion. Where the court had dutifully evaluated the evidence received and fully appraised the fact, it is not for us to repeat the exercise solely with the purpose of substituting our own finding with that of the trial court see Ahmed v. State (1999) 7 NWLR (Pt.612) 641 and Nigeria Airways Ltd. v. Okutubo (2002) 15 NWLR (Pt.790) 376.
In the instant case, the evaluation conducted by the lower court of the evidence adduced by parties before it cannot be faulted. Let me elaborate.
One of the ways of proving title to land is by production of duly authenticated documents of title. It is one of the five acceptable ways of proving title. Any of the said five ways is sufficient to ground title in a claimant. See S.0. Idundun v. D.E Okumagba (1976) 9-10 SC 227.
The appellants in the instant case chose to rely primarily on documents to sustain their claim. It is germane to ask at this point what these documents were and against what background the lower court appraised their authenticity and relevance.
The appellants sought to exploit ex. C to ex. C6 as well as ex.B to prove their claim over the land in dispute. Ex. C to ex. C6 are receipts for the payment of ground rent. Ex B is the deed of lease in favour of the appellants and attached to which is the survey plan of the land to which the deed relates. The findings of fact and the process of arriving at which finding is at page 118 of the record.
There at the court stated thus:
“The plaintiffs produced ex. C to C6 in proof that they were paying their ground rent… but the description of the area of the land varies from ex. C to but the description of the area of the land varies from ex. C to C4. In exhibits C5 to C6 the area of the land was never mentioned. In exhibit ‘C’ the area of the land was described as 15x 30 metre, in ex. C1 it was described as 50 x 100 metres. In C2, it was described as 15 x 30 metre. In ex. C3, it was described as 50 x 100 metres. Whilst in ex. C4 dated 1971 it was described as being 50 x 100ft. The area of the land as per the survey plan attached to ex. ‘B’ is roughly 107 x 56ft.
If this is so, there is no encroachment on the plaintiffs property whatsoever. Exs. C1,C2 and C3 if the area shown by them is to go with and converted into imperial it would roughly be 150ft v. 300ft. In my view, the area of the land of the plaintiffs land has not been clearly identified even by their own receipts.
The finding that appellants had failed to establish the identity of the land they claimed to be entitled to as stated above cannot be faulted. Beyond this scenario though, it may be asked what the respondent’s defence was and what use did the trial court make of the defence as well.
Respondent pleaded and relied on exs. D, E, F, G and H. Ex. D is the receipt of purchase for the sum of two hundred and fifty pounds issued to the respondent by the Ojuwoye communal land owners in respect of No. 148B. ex. G is the certificate of occupancy in respect of No. 148B ex. H is a letter in respect of the renumbering of No. 148B.
The documents relied upon by the respondent had clearly defined the land respondent purchased from the Ojuwoye communal land owners. The documents also distinguished the property No. 148B from the one acquired by appellants’ deceased father from the same communal land owners. For the appellants in the instant case to succeed in their claim, it was necessary to prove that No. 148B which the respondent was in effective possession of was within the parcel of land granted their father in 1948 which had devolved on them by customary inheritance.
None of the documents relied upon by the appellants signified any such relationship between the land that had so devolved on them and the land purchased by respondent from the communal land owners and which land by virtue of the exhibits the respondent relied upon was shown to be the parcel that have been developed and was being occupied by the respondent. The fact that respondent was in possession of this very parcel of land was not in dispute between the parties. This fact was also a finding of the trial court.
Two judicial decisions readily come to mind in support of the two findings made by the trial court and recaptured above. The respondent did appositely refer to one of these decisions in her brief.
Firstly, there is Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 at 550. Herein the Supreme Court held that the trial court must not be left to surmise over the identity of the land being claimed. Failure by a claimant to establish the identity of the land he claims is fatal to his case. That must be appellant’s faith in the instant case.
Secondly, Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413 enunciates the principle that a person in possession is presumed entitled to the land he occupies against the whole world except the owner thereof.
In the instant case, appellants had failed to show with any precision the dimension of the land they were claiming. Respondent had also been shown to be in undisputed possession of the land in dispute. Beyond that, respondent had successfully defined the area she is in possession of, and the piece she so occupied had not been shown by the appellants whose burden it was to be part of the land granted to their deceased father and which had devolved on them.
Putting the evidence beneficial to each side in the instant case on the imaginary scale as propounded in Mogaji v. Odofin supra, it was impossible for the lower court to arrive at a contrary decision from the one it did. The scale had unmistakably tilted in favour of the respondent whose evidence as rightly appraised was heavier than the evidence led by the appellants. From the state of pleadings of and evidence led by the parties in the instant case, the appellants cannot lawfully be said to have proved their claim. It is accordingly impossible for one to resolve in their favour the two issues raised by them in this appeal. Same are resolved against them but in favour of the respondent.
Resultantly, this appeal has no merit. It is accordingly dismissed. The lower court’s decision in favour of the respondent is hereby affirmed. The cost of this appeal is put at N5,000.00 and awarded in favour of the respondent.
Other Citations: (2003)LCN/1414(CA)