ADEWUMI v. GABBIS INTERNATIONAL COMPANY LIMITED & ANOR (2018)

In The Court of Appeal of Nigeria

On Thursday, the 22nd day of February, 2018

CA/IB/142/2013

Before Their Lordships

MODUPE FASANMI  Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI  Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO  Justice of The Court of Appeal of Nigeria


Between

MR. THEOPHILUS BISAYO ADEWUMI-Appellant

AND

1. GABBIS INTERNATIONAL CO. LTD
2. GABRIEL OBIEKWU-Respondents

…………………….A…………………….

MODUPE FASANMI, J.C.A.(Delivering the Leading Judgment):This is an appeal against the judgment of the Ogun State High Court of Justice in Suit No. HCT/123/2007 delivered on the 4th of Dec 2012.

The Claimants now Respondents claimed against all the Defendants jointly and severally at the lower Court as per their Amended Statement of Claim as follows:
a. AN ORDER of perpetual injunction restraining the defendants whether by themselves, servants, agents, assigns or otherwise however from entering, selling, tampering, using and or remaining on the said plot of land.
b. AN ORDER directing the defendant, to demolish and remove any structure on the said land.
c. DAMAGES in the sum of N10,000,000 (Ten Million Naira Only) for trespass and mental anguish suffered by the 2nd Claimant as a result of the defendants action. Or in the alternative
d. PAYMENT of the equivalent or prevailing price of the said plot of land in addition to the sum of N10,000,000 (Ten Million Naira Only) damages for trespass and mental anguish suffered by the 2nd Claimant.
The brief facts of the case are that the matter was originally commenced against the 1st Defendant Bishop Isaac Ecuolo. By an order of the lower Court, the Appellant Theophillous Bisayo Adewumi and one Chief Daramola Akinosi were joined as parties. However before judgment, the said Chief Daramola died and his name was struck out. The 1st Defendant Bishop Isaac Ecuolo apart from filing a statement of Defence did not take any other step in the proceedings. The suit was therefore contested at the lower Court between the Appellant and the Respondents.
The brief facts of the Respondents case are that they bought three plots of land from the 3rd Defendant (Daramola) who as the head of Olube family represented the family in the transaction. From the statement on oath of the 2nd Respondent dated 21st April 2010 and 30th July 2010 which he adopted as his evidence in chief at pages 128-131 and 197-198 of the record is that the land the subject matter of this suit is situate, lying and being at Isheri-Olofin slightly off Lagos-Ibadan Express road delineated in the survey plan tendered by the Respondent. That the land belonged to the Olube land owning family of Isheri Olofin who inherited same according to the Yoruba Native laws and customs from their ancestors. The said family in exercise of their rights of ownership had cultivated the land for several years without let or hindrance from any quarter and had sold several portions to various purchasers. It is further stated by the 2nd Respondent that he bought the land in the name of the 1st Respondent. An Agreement evidencing the sale was executed between the parties. He caused the land to be cleared and also caused it to be surveyed. He thereafter sold two out of the three plots to one Mr. Cyprian Okafor and Alhaji Abass who had developed their respective plots without let or hindrance. It remains one plot of land, between 1992, 1998 and 2003 the second Respondent fell ill and was conferred to hospital and local healing home. Upon his discharge, he observed that his remaining one plot of land had been developed by the 1st Defendant Bishop Isaac Ecuolo. He promptly informed the 3rd Defendant and Chief Lawal about the development but they both denied knowledge of who was developing the land. He lodged a report of the incident at the Police Headquarters Zone 2, Onikan Lagos. The Police invited the 3rd Defendant to their office and he in turn took them to the 1st Defendant as the person who built on the land. The 1st Defendant Bishop Isaac Ecuolo informed the Police that he bought the land from the Olube family and has since then sold the property to the 2nd Defendant who is the Appellant before this Court. He concluded that the Defendants had trespassed on the property.
At the conclusion of the trial and address of Counsel, judgment was entered in favour of the Respondents. Dissatisfied with the judgment, Appellant filed his original notice of appeal on the 17th of Dec. 2012 contained at pages 303-307 of the record. An amended notice of appeal was filed on the 8th of May 2015 by the order of the Court made on the 24th of March 2015. The record of appeal was transmitted on 24/4/13 but deemed on 25/1/17. Appellant???s brief of argument was filed on 24/3/17 but deemed on 6/11/17. Appellant distilled two issues for determination. At the hearing of the appeal, learned Counsel for the Appellant adopts and relies on the arguments contained in the said brief. Learned Counsel for the Appellant urged the Court to allow the appeal.

…………………….B…………………….

Respondents brief of argument was filed on the 26th of April 2017 but consequentially deemed on the 11th of Jan. 2018. Respondents distilled two issues for determination. At the hearing of the appeal, learned Counsel for the Respondents adopts and relies on the arguments contained in the brief. He urged the Court to dismiss the appeal.
Appellant’s issues for determination are stated in paras 3.1 – 3.2 of his brief as follows:
3.1 Whether on the pleadings and evidence, the learned trial Judge rightly upheld the title of the Respondents to the land situate at 1, Bishop Isaac Close, Isheri Olofin, Lagos. (Distilled from Grounds 1, 2, 3, 4, 6 & 7).
3.2 Whether the award of damages against the Appellant is proper in the circumstances of this case. (Distilled from Ground 5).
Respondent’s issues for determination are stated at page 3 of the Respondents brief thus:
3.1 Whether from the totality of evidence adduced, the lower Court was right in finding in favour of the Claimants now Respondents?
3.2 Whether the lower Court was right in holding that trespass was established?
The issues distilled for determination by the parties are virtually the same but couched differently. I have carefully read and fully assimilated the judgment of the trial Court and the Appellant’s amended notice of appeal and I am of the humble view that issue one formulated by the Respondents is more succinct and apt to the determination of the controversy between the parties. Appellant’s issues are subsumed in the Respondents issues. The appeal will be determined on the Respondents issue one which states thus:
Issue One
Whether from the totality of evidence adduced, the lower Court was right in finding in favour of the Claimants now Respondents.
Learned Counsel for the Appellant submitted that the learned trial Judge held that both parties bought land from Olube family and that the Respondents who were first in time acquired better title over the Appellant notwithstanding the acquisition by the Ogun State Government and the post-acquisition title of the Appellant.
He submitted that whosoever is claiming title to land must be able to establish it by credible evidence. He referred to the cases of Idundun v. Okumagba (1976) 9-10 S.C page 227 and Alli v. Alesinloye (2000) 6 NWLR (Part 66 page 177). Learned Counsel for Appellant contended that Respondents did not establish the identity of the land claimed by them. He submitted that Exhibit A was the receipt given to the 1st Respondent wherein it was stated Being the cost of 3 Plots 60 by 120 feet at Isheri-Odo while the receipt given to the Appellant’s predecessor in title is Exhibit G. It is stated therein. Being payment for one Plot of land 60 by 120 situated at Isheri-Olofin. The Appellant on the other hand established the identity of his land with sufficient particularity. He contended that there is no basis to equate the title of the parties.
Learned Counsel for the Appellant contended further that when the Appellant predecessor in title who bought from the Olube family discovered the fact of the acquisition of the land by the Ogun State Government, he approached the rightful owner i.e. Ogun State Government to ratify his holdings and same was granted. He submitted that Bishop Isaac Ecuolo the 1st Defendant at the lower Court who is the Appellant’s predecessor in title secured a valid title to the land in dispute by ratification from the Ogun State Government. He subsequently obtained Certificate of Occupancy which he vested in the Appellant. He submitted that the finding of the trial Court is not supported by evidence and should not be allowed to stand. He urged the Court to resolve issue one in favour of the Appellant and allow the appeal.
Learned Counsel for the Respondents submitted that the contention between the parties at the lower Court was the title or ownership of land and trespass as per the Respondents claim. Submitted that the Respondents in proof of their case at the lower Court tendered Exhibits A, B, C, D, E & F. Exhibit F which is the photocopy of the survey plan of the land in dispute was expunged from the records. It is contended that the parties knew the land in dispute as No. 1, Bishop Isaac Etidia Close, Isheri-Olofin now known as No. 5 Unity Close, Isheri-Olofin.
Learned Counsel for the Respondents submitted that Exhibit A the Olube family land receipt was tendered without any objection from the Appellant. Exhibit A was evidence of the purchase of the land in dispute by the Respondents. He contended that the pleading relating to Exhibit A is at page 129

…………………….C…………………….

para 11 of the Statement of Claim of the record of appeal. This particular paragraph was not denied by the Appellant. It is therefore deemed admitted. He submitted that parties are strictly bound by their pleadings and are not allowed to make a case that is at variance with their pleadings. He referred to the cases of Ukaegbu v. Ugoji (1991) 6 NWLR (Part 196) page 127 S.C and Makinde v. Akinwale (2000) 1 S.C. page 89.
Learned Counsel for the Respondents submitted that the Respondents bought the land in dispute in 1995 while the Appellant bought in 2003. Submitted that the 1st Defendant i.e. Bishop Isaac Ecuolo by the doctrine of nemo dat non habet had nothing to transfer or convey to the Appellant. He referred to the case of Adeagbo v. Williams(1998) 2 NWLR (Part 53) page 120. The issue of Ogun State Government acquisition of the land did not affect the title of the Respondents. He submitted that it was established by evidence that even though the land was acquired, it was released to the owners. When an acquired land is released, ownership reverts to former owners.
Learned Counsel for the Respondents submitted that the case of Yusuf v. Oyetunde (1998) 12 NWLR (Part 579) at page 493 heavily relied upon by the Appellant is not applicable in the instant case. It is distinguishable on the ground that in Yusuf’s case supra, there was total acquisition while in the case at hand, the land was released. It is submitted further that Appellant did not prove acquisition at the lower Court. It is settled law that where a party admits the title to certain land which it claims was originally vested in a rival party, then the onus is on that party to prove that such a rival party had been divested of such title. He referred to the case of Omoni v. Biryah (1976) 10 NSCC 329 at 331. He urged the Court to resolve issue one against the Appellant and dismiss the appeal.
There are five ways of proving title to or ownership of land. These are:
(a) Traditional evidence
(b) Production of documents of title duly authenticated in the sense that their due execution must be proved.
(c) By positive acts of ownership extending over a sufficient length of time.
(d) By acts of long possession and enjoyment of the land; and
(e) 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.
The establishment of one of the five ways is sufficient. See the cases of Ayoola v. Odofin (1984) 11 S.C. page 120, Ewo v. Ani (2004) 3 NWLR (Part) 861) at 610, Nkwo v. Iboe (1998) 7 NWLR (Part 558) page 354, Adesanya v. Aderounmu (2000) 9 NWLR (672) page 370 and Asheik v. Borno State Govt (2012) 9 NWLR (Part 1304) page 1 at 35 para C-F.
A plaintiff seeking a declaration of title to land has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no Court would be obliged to grant a declaration to an unidentified land. See the cases of Ogedengbe v. Balogun (2007) 9 NWLR (Part 1039) page 380, Adelusola v. AkInde (2004) 12 NWLR (Part 887) page 295, Okochi v. Animkwoi (2003) 18 NWLR (Part 851) page 1 and Asheik v. Borno State Govt(2012) 9 NWLR (Part 1304) page 1 at 35 para C-F.
In the case at hand, Respondents in their Amended Statement of Claim para 6 at page 128 of the record pleaded thus:
The land the subject matter of this suit is situate, lying and being at Isheri-Olofin slightly off Lagos-Ibadan Express way is more particularly described and delineated in the survey plan hereinafter attached as Annexture 1.
The 2nd Respondent Gabriel Obiekwe’s statement on oath at page 136 of the record paragraph 5 is as follows:
The land the subject matter of this suit is situate, lying and being at Isheri-Olofin slightly off Lagos-Ibadan Express and is more particularly described and delineated in the survey plan hereinafter attached as Exhibit 1.
The identity of the land was not in dispute and was not made on issue at the trial at the lower Court. The parties knew the land in dispute. Appellants under cross-examination at page 233 of the record said:
The address of the land now No. 5 Unity Close, Isheri Olofin, the address before is No. 1 Bishop Isaac Etudia Close, Iseri Olofin. There is no problem with identifying the plot.
The learned trial Judge at page 299 of the record found as follows:
The identity of the land in dispute is not in doubt, also both the 2nd Claimant and the 1st Defendant bought from the same source i.e. from the Olube

…………………….D…………………….

family, the failure of any survey plan from the claimant is therefore not of grave consequence to his case as both the claimants and the 1st Defendant bought the land from the same source.???
Appellant’s submission that the Respondents did not prove the identity of the land and that the judgment of the trial Court was not on any identifiable piece of land is of no moment. Respondents tendered Exhibit A the Olube family land receipt without any objection from the Appellant. Parties are bound by their pleadings and are not allowed to make a case that is at variance with their pleadings. See the case of E.D Tsokwa & Sons Co. Ltd v. UBN Ltd (1996) 10 NWLR (Part 478) pg 281 SC.
Exhibit A is the evidence of purchase of the land in dispute by the Respondents. Appellant’s predecessor in title also has a receipt of purchase from the Olube family. Respondents bought their land from the Olube family in 1995 while Appellant’s predecessor in title bought the land from the same family in February 2003. The Respondents who bought the land first from the Olube family has a better title from the Olube family out of the two parties i.e. Appellant and Respondents.
From the record, Respondent established that he was put into possession of the three plots of land which he bought and has exercised acts of ownership over two of the plots by selling them. The evidence of the 1st Respondent is that he was an eye witness to the transaction. An equitable interest has therefore been created in favour of the 2nd Respondent by the Olube family. See the case of Ohiaeri v. Yussuf (2009) 37 NSCQR (page 634) at ratios 1 & 2 where the Supreme Court opined that:
The established legal principle is that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the Vendor and is in furtherance therefore put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate created by the same Vendor or his legal representative in favour of another person.
The learned trial Judge rightly found at page 301 of the record thus:
The totality of the above is that the 1st Defendant did not acquire any interest legal or equitable in the property, he cannot therefore transfer any interest to the 2nd Defendant, ratification of the land to him by the State Government notwithstanding; the ratification was made without prejudice.
The 1st Defendant has no title to pass to the 2nd defendant as he cannot pass what he did not have, moreover the only document conferring any title on the 2nd Defendant by the first Defendant is Exhibit O, the document is undated, the property in question was not described, the document is also not registered.
Appellant’s Counsel raised the issue of Certificate of Occupancy issued to the Appellant and that the document gives him a valid title. It is the law that a Certificate of Occupancy is only prima facie evidence of title or right of occupancy in favour of the person whose name is on the Certificate of Occupancy. Where a rebuttal is raised on that presumption, the trial Court is bound to examine all the surrounding circumstances including the nature of the competing claims. Production of a Certificate of Occupancy does not automatically entitle a party to a claim for declaration. See the cases of Adebakin v. Odujebe (1972) 6 SC (page 208), Balogun v. Labiran (1988) 3 NWLR (part 80) page 66, Madu v. Madu (2002) 13 NWLR (784) page 231, Dabo v. Abdullahi (2005) 7 NWLR (Part 923) page 181 and Asheik v. Borno Sate Government (2012) 9 NWLR (Part 1304) page 1 at 26 paras C – D, pages 27 -28 paras G – A and pages 35 -36 paras G – B.
In the instant case, it is in evidence that Respondents bought the land from the Olube family in 1995 while Appellant bought from the same family too in 2003. This translates to mean that the Respondents have better title from the Olube family out of the two parties that have competing claims.
1st Defendant Bishop Isaac Ecuolo did not acquire any interest legal or equitable in the property. He cannot therefore transfer any interest to the 2nd Defendants i.e. the Appellant, notwithstanding the ratification of the land to him by the Ogun State Government that was made without prejudice.

…………………….E…………………….

 Where there are two competing parties to a piece of land and they trace their grantor to the same person, the later in time will have to give way to the first in time. This is in pursuit of the well known maxim quo priorest tempore potiner est jure. See the case of Asheik v. Borno State Government supra
Trespass to land is actionable at the instance of the person in possession. Exclusive possession gives the person in possession the right to retain the land and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. Respondents have proved a better title in this case.
The learned trial Judge rightly adjudged the Appellant a trespasser in the circumstance and the award of damages against the Appellant was not made in error or a misconception of the principles guiding the award of damages. An Appellate Court would exercise restraint in interfering with the exercise of discretion by the trial Court except when it is manifest that it was wrongly exercised such as taking into account irrelevant factors showing malafide or that the award was made arbitrarily. See the cases of Rewane v. Okotie-Eboh (1960) SCNLR (Page 461) and ACB Ltd v. Ajugwo (2012) 6 NWLR (Part 1295) page 130 paras F – G.
In the instant case, the award of damages in favour of the Respondent cannot be termed outrageous or done malafide.
Finally, the findings of the learned trial Judge are backed by credible evidence and this Court cannot interfere with it. Appellant has failed to prove miscarriage of justice occasioned by the decision of the learned trial Judge as no title has passed to the Appellant by any authority. The sole issue is hereby resolved against the Appellant.
Finally, the appeal is devoid of merit and it is hereby dismissed. The judgment of the lower Court in Suit No. HCT/123/2007 delivered on the 4th of December 2012 is hereby affirmed. Parties are to bear their respective costs.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother, Modupe Fasanmi, JCA.
My learned brother has concisely and admirably resolved the issue that arose for the determination of this appeal. There is credible evidence on record to support the judgment of the trial Court. This appeal therefore has no merit. It is accordingly dismissed.
I abide by the order on costs.

NONYEREM OKORONKWO, 
J.C.A.: I have had the opportunity of reading the draft of the judgment of my lord Modupe Fasanmi JCA just delivered in this appeal.
The appeal demonstrates the equitable principle and rule of justice that “he who is first in time is stronger in law” where competing interests trace their titles to a common source.
I agree with the lead judgment as pronounced and abide by the orders made therein.

Appearances

Rasaq Okesiji with P.O. Ogunnubi-For Appellant

AND

Chief Nkacha Chiwaba-For Respondents

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