JOVINCO NIGERIA LIMITED & ANOR v. MR. EMEKA IBEOZIMAKO

CORAM

PARTIES

1. JOVINCO NIGERIA LIMITED

2. MR. J. C. EZEORU

APPELLANTS

MR. EMEKA IBEOZIMAKO

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondent’s claim is that his father Chief Michael Okechukwu lbeozimako (deceased), was the owner of the land in dispute known as W2 Ahmadu Bello Way Kaduna which he bought from one Ajulu in the year 1952. The land in dispute is a commercial premises and one Unachukwu was the care-taker of the property until he died and Vincent I. Okezue became the care-taker. The 1st and 2nd Appellants were two of the four tenants who occupy shops on the land in dispute and were paying rent first to the Respondent’s father before his death and after his death to the Respondent through the care-taker. Before the Respondent’s father died, he gave the land to the Respondent his first son, who upon his father’s demise inherited the land and thereafter became the landlord of the premises. The Appellants were paying their rent in respect of the shops until 1994 when they stopped payment and 2nd Appellant who is the Managing Director of the 1st Appellant started claiming that the place belongs to him. Meanwhile in 1996, the 2nd Appellant told the Respondent and the care-taker that the Respondent’s father had prior to his death applied to Kaduna North Local Government for a new Certificate of Occupancy (C of O) in place of the missing one, and was to pay the sum of N100,000 for the new C of O. The Respondent sent all the required documents in respect of the land in dispute to the caretaker who was to go together to the lands office with the 2nd Appellant but delegated this duty as he had to travel, thereby surrendering all the documents to the 2nd Appellant and the sum of N50, 000; the balance N50,000 from the 2nd Appellant’s rent. However, instead of applying for the Certificate of Occupancy in the Respondent’s name, the 2nd Appellant, in connivance with staff of the Lands & Survey of the Local Government, secured the Certificate of Occupancy in his own name. The matter was reported to the police who recovered the certificate of occupancy and other documents from the 2nd Appellant. The Appellants contended that the land belongs to them as the Respondents father never acquired title to the property to devolve anything to the Respondent. That the land given to the Respondents father had expired and the whole of the area had been acquired by Kaduna State Government when Katsina Road roundabout was constructed. That the Respondent had paid for a new C of O and that the continuous payment of rent to the Respondent were all based on a mistake of fact and upon realization of that mistake, they stopped paying rent to the Respondent. The Respondent instituted this suit at the Kaduna State High Court claiming against the Appellants jointly and severally for a declaration of title to the land in dispute; an order evicting the Appellants from the land in dispute; perpetual injunction restraining the Appellants; payment of arrears of rent and mense profit and general damages. The Appellants also counter-claimed against the Respondents. The trial Court granted the Respondent’s claims. The Appellants, dissatisfied with the judgment filed a Notice of Appeal, which has two Grounds of Appeal, and was later amended. The Respondent in his brief of argument raised a Notice of Preliminary objection challenging the competence of grounds 1, 2 and 4 of the Appellants amended grounds of appeal, but later withdrew same.

HELD

Appeal Succeeds in part

ISSUES

1. Whether by the available evidence before the trial Court, the Respondent proved his entitlement to W2 Ahmadu Bello Way, Kaduna to warrant the judgment of the Court.?

2. Whether there is any evidence on record to support the holding by the learned trial Judge that: “the defendants shall pay arrears of rent/mense profit for the period of 1994 – 2003 and thereafter at the rate of N400,000.00 per annum until vacant possession of the premises is handed over to the plaintiff “?

RATIONES DECIDENDI

BURDEN OF PROOF – WHETHER A PLAINTIFF’S CLAIM CAN SUCCEED ON THE WEAKNESS OF THE CASE PRESENTED BY THE DEFENCE

“The Respondent as the plaintiff had the duty to prove by credible and cogent evidence the title claimed. This he must do by the strength of his case and not on the weaknesses of the Defendant’s/Appellants’ case.
This principle that the claimant must succeed on the strength of his case and not on the weakness of the defence’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff by virtue of Section 131 of the Evidence Act. It is therefore settled law that the success of the plaintiffs claim depends on the strength of his evidence placed before the Court and not on the weakness of the case presented by the defence. Bankole vs. Pelu (1991) 8 NWLR (Pt.1211) 528; Melifonwu&ors vs. Egbuyi&ors (1982) 9 SC (reprint) 73, Odunze vs. Nwosu (2007) ALL FWLR (Pt.379) 1295, Kpopek Co nst. Ltd vs. Ekisola (2010) All FWLR (Pt.519) 1035. However, the plaintiff is entitled to take advantage of the evidence of the defence which supports his case. See Eyo vs. Onuoha (2011) LPELR 1873 (SC)”.-

TITLE TO LAND -WHETHER A PARTY SEEKING TITLE TO LAND IS ENTITLED TO ESTABLISH ALL THE WAYS OF PROVING TITLE TO LAND

“A party claiming title can rely on any one or more of the 5 ways of proving title. Idudun vs. Okumagba (1976) 9 & 10 SC 246”. –

INTER VIVOS GIFT– MEANING AND NATURE OF AN INTER VIVOS GIFT

“An inter vivos gift is a gift made when the donor is living and provides that the gift takes effect while the donor is living as contrasted with testamentary gift which is to take effect on death of donor (testator). See the Black Law Dictionary 6th edition page 821. An inter vivos gift by its very nature is made by a living person to another and takes effect immediately it is made and once it is made by the donor the subject of the gift ceases to belong to the donor. It cannot therefore form part of the estate of the donor when the donor dies. A gift inter vivos was defined by the Supreme Court in Anyagbunam vs. Osaka (2000) 5 NWLR (Pt. 657) 386 as an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver” per Muhammed JSC at pp 23 – 24 paras A – G. See also Osagie vs. Giwa (2009) LPELR 4533 (CA) per Ogunwumiju JCA”. –

DOCTRINE OF ESTOPPEL – WHETHER A TENANT DURING THE CONTINUANCE OF THE TENANCY, IS PERMITTED TO DENY THAT THE LANDLORD HAS TITLE TO SUCH IMMOVABLE PROPERTY

“By operation of Section 170 Evidence Act, the Appellants who have been tenants to Respondent, are estopped from denying the title or interest of the Respondent in the disputed land. To allow the Appellants to deny the title of the Respondent, would amount to what the Supreme Court said while explaining the rule of estoppel in the case of Ude vs. Nwara (supra) as “blowing hot and cold, to affirm at one time and deny at the other; or as it is said to approbate and reprobate….” –

OWNERSHIP OF LAND – WHETHER PROOF OF ACTS OF LONG POSSESSION AND ENJOYMENT OF LAND IS A PRIMA FACIE EVIDENCE OF OWNERSHIP OF LAND

“It is trite that the prove of acts of long possession and enjoyment of land is a prima facie evidence of ownership of the particular piece of land. Where as in this case the plaintiff shows that he has been in long possession of the land and has exercised acts of ownership/possession, the presumption that prima facie, he is the owner inures him. Once a party establishes long possession in his favour the onus is on the other who challenges to disprove the claimant and to establish his better title. The law is also settled that possession can either be physical or constructive. A person who rents out his premises to tenant is deemed in the eye of the law to be in possession of that premises.
Thus a person can be in possession through a third party such as his servant, agent or tenant. Also possession of a predecessor in title is in law deemed to be continued by his successor. Per Kutigi JSC, as he then was, in Ladipo vs. Ajani (supra)”.-

LANDLORD – TENANT RELATIONSHIP –WHETHER A LANDLORD CAN UNILATERALLY ALTER THE TERMS OF AN AGREEMENT TO INCREASE RENT

“However, I am of the humble view that the matter of rent increment must be supported by an agreement to that effect. The landlord-tenant relationship and issue of rent payable by a tenant to a landlord being one of a contract, the landlord cannot unilaterally alter the terms of the agreement, to increase the rent. In Cobra Ltd vs. Omole Estate and Investment Ltd (2000) 1 NWLR (Pt. 655) 1, this Court per Galadima JCA (as he then was) following the decision in Udih vs. Izedonmwen (1990) 2 NWLR (Pt. 132) 357 at 366 has held that unless the landlord and the tenant are ad idem a landlord’s unilateral decision to increase the amount of rent payable is ineffective”. –

DECLARATION OF TITLE TO LAND – DUTY ON A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

“It is trite that in a claim for a declaration of title to land, as in the instant case, the onus is on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration he seeks. The Plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case even though where the evidence of the Defence favours the said Plaintiff he will not be deprived of such an advantage. See Kodilinye vs. Odu (1935) 2 WACA 336; Obawole vs. Williams (1996) 10 NWLR (Pt.477) 146 at 171, and Oyedeji vs. Akinyele (2001) 29 WRN 69 at 91”. –

Legalpedia Citation: (2014) Legalpedia (CA) 56414

In the Court of Appeal

HOLDEN AT KADUNA

Thu Jun 26, 2014

Suit Number: CA/K/345/2010