BRIG. GEN. DONATUS IDADA IKPONMWEN v. CAPT. JOHN AIREN ASEMOTA & ANOR
March 28, 2025ORAKUL RESOURCES LTD & ANOR v. NIGERIAN COMMUNICATIONS COMMISSION & ORS
March 28, 2025Legalpedia Citation: (2022-05) Legalpedia 54627 (SC)
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Fri Jan 7, 2022
Suit Number: SC.27/2008
CORAM
Mary Ukaego Peter-Odili, Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun,Justice of the Supreme Court of Nigeria
Ejembi Eko, Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba, Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa, Justice of the Supreme Court of Nigeria
PARTIES
MR. OLUFEMI AYORINDE
APPELLANTS
CHIEF AYODELE KUFORIJI
RESPONDENTS
AREA(S) OF LAW
ACTION, ADMINISTRATION OF ESTATE, APPEAL, COUNTER CLAIM, COURT, CUSTOMARY LAW, FAMILY LAW, JUDGMENT AND ORDER, JURISDICTION, LAND LAW, LANDLORD AND TENANT, LAW OF EVIDENCE, LAW OF INHERITANCE AND SUCCESSION, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant instituted this action at the trial court by a Writ of Summons, in a representative capacity for himself and on behalf of the children of Ayorinde family of Fadubi’s compound, Ago-Owu, Toro and Abeokuta, wherein he sought against the Respondent, a declaration that he is entitled to the statutory right of occupancy over the disputed land; N100,000.00, as general damages for trespass; N100,000.00, as special and general damages for the killing of poultry birds, malicious damage to his walls and crops on the land; and an order of perpetual injunction restraining the Respondent from further acts of trespass.
The fact of the case is that on 11th September 1954, the three Kuforiji brothers, namely: Samuel Abraham Kuforiji, Herbert Frederick Afolabi Kuforiji and Hezekiah Christopher Olajide Kuforiji, jointly and as joint owners to the exclusion of their other brothers and cousins, executed a deed of lease wherein, upon valuable consideration, demised the disputed land to the Foreign Mission Board of Southern Baptist Convention for 99 years (i.e. up to the year 2053). The Appellant, a nephew of Rev. (Dr,) J. T. Ayorinde, claimed that by Deed of Surrender dated the 29th day of May 1974, and registered as No. 33 at page 33 in volume 503 of the Lands Registry in the office at Ibadan now kept in Abeokuta, the Foreign Mission Board of the Southern Baptist Convention surrendered their unexpired term to the late Pa Rev. (Dr.) J. T. Ayorinde, in respect of the land in dispute. A Deed of Conveyance dated 1st May, 1973 executed in favour of Rev. (Dr.) J. T. Ayorinde by Chief Jonathan Kuforiji and Chief Simeon Olujinmi Kuforiji for themselves and on behalf of Kuforiji Family Council of Kemta, Abeokuta. That by the said Deed of Conveyance the reversionary interest in the land in dispute was conveyed to his uncle, the late Rev. (Dr.) J. T. Ayorinde and that upon the latter taking “absolute possession” of the disputed land, he moved into the disputed land and stayed with the Rev. (Dr.) J. T. Ayorinde, who was a brother of the same blood with his father, Emmanuel Bolaji Ayorinde; the Plaintiff did not obtain Letters of Administration. The Respondent, specifically admitted the fact that there was an executed deed of lease by his late father and uncles in 1954 to the Foreign Mission Board of Southern Baptist Convention for 99 years, in the Amended Statement of Defence and the counter-claim, but still claimed that he was the owner of the land in dispute together with all the other children of Hezekiah Christopher Olajide Kuforiji (deceased) and is entitled to possession of the disputed land. This is inspite of the joint ownership of the same land vesting jointly in the three Kuforiji brothers, including his father Hezekiah Christopher Olajide Kuforiji. The Respondent did not give further particulars as to how the joint ownership of the land in dispute, which was jointly demised to the Baptist Mission in 1954 by the three joint owners, including his father, H.C.O. Kuforiji (deceased), eventually metamorphosed to the sole ownership of the H.C.O. Kuforiji (deceased) and devolving to him and all the other children of Hezekiah Christopher Olajide Kuforiji (deceased). The Respondent did not bring his counter-claim in any representative capacity. The Appellant’s claim was dismissed in its entirety by the trial Court; while the Lower Court affirmed part of the Counter-Claim of the Respondent, as the beneficial possessor of the land in dispute. Further aggrieved, the Appellant has appealed to the Supreme Court vide his Notice of Appeal containing 9 Grounds of Appeal challenging the decision.
HELD
Appeal Allowed
ISSUES
Whether having regard to the undisputed fact that appellant was a nephew to Late Rev. Dr. Ayorinde, the grantee of the land in dispute as per Exhibit “D” and who died intestate leaving no surviving issue safe the appellant, the lower Court was right to hold the appellant who was in possession of the land, had no locus standi to sue for trespass on behalf of other nephews and nieces of late Rev Dr. Ayorinde.
Whether the Court of Appeal rightly held that appellant did not prove a better title to the land in dispute, as against the respondent notwithstanding the probative value of Exhibits B, C and D tendered by the appellant vis-a-vis the issue dixit of respondent and his witness to the contrary and thus dismissed the claim of the appellant and uphold the counter-claim of the respondents.
Whether the Court of Appeal rightly held that the defences of Limitation law and laches and acquiescence did not hold against the counter- claim of the respondent the overwhelming evidence and the combined provisions of Section 16 of the Court of Appeal Act, 1982, Section 222(a) of the Constitution of the Federal Republic, of Nigeria 1979 and Section 16 of the Limitation Law Cap 16 of the Laws of Ogun State.
RATIONES DECIDENDI
PURPOSE OF A PRELIMINARY OBJECTION
The Respondent, vide a purported Notice of Preliminary Objection, submits that grounds 1, 4, 5 and 7 of the Further Amended Notice of Appeal are incompetent and should be struck out. The purported Notice of Preliminary Objection clearly concedes that other grounds of appeal, namely: 2, 3, 6, 8 & 9, sustain the appeal. In the circumstance the procedure of Notice of Preliminary Objection under Order 2 Rule 9(1) of the extant Rules of this Court is not appropriate. As Rhodes-Vivour, JSC stated in Isah v. INEC & Ors. (2014) 1-2 SC (pt. iv) 101-
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective (and) — the hearing of the appeal comes to an end if found to be correct. Where a Preliminary Objection would not be the appropriate process to object or show the Court the defects -in the processes before it, a motion on notice filed complaining about a few grounds or defect would suffice. See Dakolo & Ors. V. Dakolo & Ors. (2011) 6-7 SC (pt. iii) 104; Obatoyinbo V. Oshatoba (1996) 5 NWLR (pt. 450) 531.
See also NNPC & Anor v. Famfa Oil Ltd (2012) ALL FWLR (pt. 635) 204; General Electric Co. v. H. Akande (2011) 4 NSCQR 611; Sani v. Okene (2008) 5 SCNJ 246. -PER E. EKO, J.S.C.
MEANING OF LOCUS STANDI – DETERMINATION OF WHETHER A PARTY HAS LOCUS STANDI TO INSTITUTE A MATTER
“Locus standi denotes the capacity the Plaintiff has to institute proceedings in a Court of Law to seek a determination of his civil rights against the defendant. It only means or it is on whether/r the Plaintiff has shown sufficient interest or legal right in the subject matter of the dispute: Ladejobi & Ors v. Oguntayo & Ors (2004) 18 NWLR (pt. 904) 204. The locus standi the Plaintiff has to institute and maintain the suit does not depend on the success or merits of the case: Ojukwu v. Ojukwu & Anor. (2008) 18 NWLR (pt. 1119) 439. All the plaintiff needs to show either in his writ of summons or the statement of claim to demonstrate his locus standi to prosecute the case is merely to establish that he has a justiceable dispute or a reasonable cause of action against the defendant. I agree with the Appellant’s Counsel, on authority of Labode v. Otubu (2001) 7 NWLR (pt. 712) 256 (SC) that what matters is whether the cause of action averred supports, prima facie, the reliefs sought.-PER E. EKO, J.S.C.
WHETHER THE COURT CAN PICK AND CHOOSE WHICH EVIDENCE TO BELIEVE WHERE THERE ARE MATERIAL CONTRADICTIONS IN THE CASE OF A PARTY
“When there are material contradictions in the case of a party the Court, cannot, without credible explanation by evidence, pick and choose which piece of evidence to believe and which piece of evidence not to believe: Boy Muka v. The State (1976) 10 SC 305. It is not for the Court to provide explanation for inconsistencies in a party’s case: Onubogu v. The State (1974) 4 U. l. L. R 538. That burden falls squarely on the party who will fail without explanation in the circumstances. -PER E. EKO, J.S.C.
WHETHER A PARTY IN POSSESSION IS ABSOLUTELY THE OWNER OF THE TITLE
At 1368 of Earl Jowitt’s Dictionary of English Law 1905 Ed it is stated:
The adage, possession is nine parts of the law, means that the person in possession can only be ousted by one whose title is better than his; every claimant must succeed by the strength of his own title and not by the weakness of his antagonist’s; beati possidentes, blessed are those in possession –
Possession gives rise to peculiar rights and consequences. The principal is that a possessor has a presumptive title, that is to say, is presumed to be absolutely the owner until the contrary is shown, and is protected by law in his possession against all who cannot show better title to the possession than he has. -PER E. EKO, J.S.C.
WHETHER A COUNTER CLAIMANT MUST SUCCEED ON THE WEAKNESS OF THE ADVERSARY’S CASE
“The counter-claim being a distinct and independent suit, the counter-claimant must succeed on the strength of his case and not on the weakness of his adversary’s case.
The lower Court, in the face of the defendant’s failure to prove his entitlement to the beneficial possession of the disputed land decreed in his favour, ought to have dismissed the counter-claim. -PER E.EKO, J.S.C.
DETERMINATION OF LOCUS STANDI
“The Court below had found that appellant had no locus standi of the land, this posture the appellant considered novel and out of place. Indeed the stance taken by the Court below is strange in the light of the fact that appellant was making his case under the Administration of Estate Law. Also, it is not how a cause of action is described that is important but the facts averred to in support of the relief that the law recognises and the Court will be favourably disposed to grant. See Egolum v Obasanjo (1999) NWLR (pt. 611) 355 at 385; Olorunkemi Ajao v. Sonola (1973) 5SC 199 at 123; Labode v. Otubu (2001) 7 NWLR (pt. 712) 255 at 290. -PER M. U. PETER-ODILI, J.S.C.
MODE OF DEVOLUTION OF THE ESTATE OF INTESTACY UNDER SECTION 49 (1) (A) (3) OF THE ADMINISTRATION OF ESTATE LAW OF OGUN STATE
“The entirety of estate of intestacy devolves as residuary estate. See (4) Salubi V Nwariaku (2003) 7 NWLR PT. 819, SC, 426 AT 415-452, 1.
I refer to Section 49 (1) (a) (3) of the Administration of Estate Law of Ogun State. For its significance in resolving this issue I hereby set it out:
“S.49 (1) The residuary estate of an intestate shall be distributed in the manner or be held on the trust mentioned in this section, namely,
(a) If the intestate leaves a husband or wife, then in accordance with the following table: if the intestate.
(1) Leaves:
(a) No issue and
(b) No parent, or brother or sister of the whole blood or issue of a brother or sister of the whole blood.
The residuary estate shall be held in trust for the surviving husband or wife absolutely.
(2) …
(3) Leaves one or more of the following, that is to say, a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood but leaves no issue. The surviving husband or wife shall take the personal chattels absolutely and, in addition to the residuary ESTATE OF THE INTESTATE (other than the personal chattels) shall stand charged with the payment of a net sum of money equivalent to the value of two third of the residuary estate; free of cost. To the surviving husband or wife with interest thereon from the date of the death at the rate of two and half naira per cent per annum until paid or appropriated and subjected to providing for that sum and the interest thereon, the residuary estate (other than the personal chattels) shall be held.
(a) As to one half in trust for the surviving husband or wife absolutely, and
(b) As to the other half-
(i) Where intestate leaves one parent or both parents, (whether or not brothers or sisters of the intestate or their issue also survive) for the parent absolutely or as the case may be, for two parents in equal shares absolutely.
(ii) Where the intestate leaves no parent, on the statutory trusts for the brothers and sisters of the whole of the intestate”.
(Underlining supplied for emphasis)
-PER M. U. PETER-ODILI, J.S.C.
WHETHER ANY MEMBER OF A FAMILY CAN SUE TO PROTECT THE FAMILY PROPERTY
“It is therefore trite that any member of the family can sue in order to protect the family property including his own interest where his interest or that of his/her family is threatened.
I refer to the following cases:
(8) Mozie v Mbamalu (2006) 15 NWLR (PART 1003) AT 466 S.C. Pt. 473, 493
(9) Inakoju V Adeleke (2007) 4 NWLR, PART 1025. PP 601-602,
(10) Ezekude V Odogwu (2002) 3 NWLR (PART 784) 366, P. 373
(11) Melifonwu V Egbuji (1982) 9 S.C. 145
-PER M. U. PETER-ODILI, J.S.C.
WAYS OF ESTABLISHING FAMILY PROPERTY
It is reiterated that family property in Nigeria is a customary holding and English law has no provision for family holding. The appellant pleaded that the land was family property and proved same. Hence his locus standi was not in doubt. Family property can be established in a number of ways which include succession upon death intestate of the original owner as in his case. See (12) Lewis v Bankole (1908) 1 NLR 81; (13) Gaji v Paye (2003) 8 NWLR PT. 823, SCM, 683 at 609 per Tobi JSC-
“Family property could be created by a number of ways, including death intestate (devolution), conveyance inter vivos, will and gift or allotment. For land to qualify as family, the party who so claims must not only identify the origin of the property but also it status”
The Appellant successfully established his family interest in the land in dispute as a family property by showing his relationship with late Rev. Ayorinde from the property devolved onto him and siblings without issue and the death of his wife without issue. It has long been settled that real estate the successions to which are not possible by testamentary disposition devolves under native law and custom to heirs, without letter of admission. See (14) Toriola V Williams (1982) VOL. 13 NSCC 187 at 194 lines 40-62. -PER M. U. PETER-ODILI, J.S.C.
WHETHER SUCCESSION IN INTESTACY UNDER YORUBA NATIVE LAW AND CUSTOM REQUIRES PROOF
“The succession of children to their father’s estate in intestacy under Yoruba native law and custom, as pleaded and proved by appellant is a customary law that has been judicially affirmed and noticed in several cases. By virtue of Section 14 of the Evidence Act and does not require a laborious proof. See (15) Kareem V Ogunde (1972) NSCC VOL. 7, Page 60 At 65 -PER M. U. PETER-ODILI, J.S.C.
DISTINCTION BETWEEN EXTINGUISHMENT AND STATUTE BAR
I agree with learned counsel for appellant, that Section 9 to which Section 16 is made subject, deals with land held in trust. This is not the case here. The Oyo State and Lagos State equivalent of this provision of the Ogun State limitation law have been interpreted by this Court. See (19) Odekilekun V. Hassan (1997) 12 NWLR (PT 531) S.C. 56 PER IGUH 1 JSC at 78.
The Court held further:
“Can the exclusive and long adverse possessors of land maintain an action in trespass against a former owner thereof whose title had been effectively extinguished by operation of law, such as Limitation Law of Western Nigeria, 1959, or the land through the original owner but after the title of such an original owner had been lost? My answer to the above question must be in affirmative. See Odubeko V Fowler and Belize Estate and Produce Company Limited V Quilier …”
The emphasis in the judgment of IGUH JSC is that, extinguishing is not the same things as mere statutory bar, which denies access to Court only but leave the adverse owner to his device as to how he may recover the land. In the case of extinguishment, the right is as though it never existed and title is vested in the party in possession for the period.
Whereas in ordinary statute bar scenario, jurisdiction of Court is not ousted once the issue is raised. See Elabanjo v Dawodu (2006) 15 NWLR PT. 1001, SC, 76 AT 151-152 Chigbu v Tonimas (2006) 9 NWLR PT. 984. CF. (22) Majekodunmi V. Abina (2002) 3 NWLR (PT. 755) SC, 20 AT 764.
In the case of ABINA (supra) this apex Court drew the distinction between extinguishment and statute bar cases under the equivalent provision of the Limitation Law of Lagos State per OGWUEGBU, JSC as follows:
There is no doubt that an adverse possessors of land who establishes his title under Section 21 of the Limitation Law is a person entitled, at law or in equity to an estate in fee simple, in that land may apply to be registered in the registry as owner in fee simply of the land”.
His Lordship confirmed that the title acquired by extinguishment of adverse title vide Limitation Law is cause of action on its own not just a defensive shield. He states at pages 764 – 765.
“In order to acquire title by the Limitation Law, a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession in an action. The cases of:
(22) Ajibona V Kolawole & Ors (1996) 10 NWLR (PT-.476) 22; Odekilekun v Hassan & Ors. (1997) 12 NWLR PT. 531 P. 56 and Sosan & Ors. V Ademuyiwa (1986) 3 NWLR (PT. 27) 241 referred to by learned counsel for the real owners against the adverse possessors for declaration of title to land or possession and the defendants raised the plea of limitation”.
The point has to be made that the title of Respondent (even if there was any) had extinguished on the 12th anniversary of his knowledge of the deed of conveyance of the land to Rev. Dr. Ayorinde on 1974 by virtue of EXHIBIT “B” at the Kuforiji family meeting on 17th September, 1979. By 17th September, 1991 a period of 12 years elapsed and Respondent’s title was extinguished by virtue of Sections 6 and 12 of the Limitations Law of Ogun State. After such extinction of their adverse right, no right to possession remained in the Respondent nor could the Respondent’s possession be vested in him as plaintiff. See Odekilekun’s case (supra) page 78.
“A plaintiff in exclusive possession of land may quite rightly institute an action in trespass to protect his right to retain and to undisturbed enjoyment of land against all wrongdoers except a person who can establish a better title, It will not matter that such a plaintiff retains his exclusive possession of the land pursuant to the provision of the Limitation of Law”. -PER M. U. PETER-ODILI, J.S.C.
WHETHER THE COURT HAS JURISDICTION TO RECOGNIZE AND GIVE REMEDY TO A RIGHT THAT HAS BEEN EXTINGUISHED BY THE STATUTE CREATING IT
“The High Court is a creation of Constitution or statute. See Section 9 of the High Court Law, Cap. 44 Laws of Ogun State 1978; Section 236(1) of the Constitution of the Federal Republic of Nigeria, 1979 applicable to the suit when it was filed in the trial Court. By the latter, the original and unlimited jurisdiction vested in the High Court of a State is to determine “…Any civil proceedings in which the duty, liability, privilege, interest, obligation or claims is in issue …”
A literal reading of these explicit legislations shows that the High Court is only vested with jurisdiction to entertain claims recognized by law. If the law says a right is extinguished the Court has no jurisdiction to recognize and give remedy for such right.
In the same vein, where a High Court in the erroneous belief that it has jurisdiction to grant a relief which by law has been extinguished, the Court of Appeal has no right or jurisdiction to affirm such claim. The power of rehearing vested in the Court of Appeal under Section 16 of the Court of Appeal Act, 1982 applicable to this case is co-extensive with the original jurisdiction which a trial Court might have exercised rightly or wrongly in the matter, If the trial Court had no jurisdiction at all to grant or recognize such right the Court of appeal as conferred by Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 applicable at the time the appeal was lodged and decided in the lower Court.
It follows that the decision of the Court of Appeal affirming the judgment of the trial Court for the Respondent in respect of the counter-claim in this matter was without jurisdiction.
Applying the above propositions of the law to the issue under discussion the undisputed facts of this case clearly establish that the lower Court acted without jurisdiction in affirming the judgment for the Respondent in respect of land over which by law his title had been extinguished. -PER M. U. PETER-ODILI, J.S.C.
HOW THE COURT TREATS CONFLICTS IN THE EVIDENCE OF WITNESSES OF THE SAME PARTY
“It is settled in law that where there are conflicts in the evidence given by the witnesses called by the same party to his case, their testimony will be treated as unreliable. See Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (pt. 7) 393”. -PER M. U. PETER-ODILI, J.S.C.
WHETHER A PARTY CLAIMING FAMILY PROPERTY AS PERSONAL PROPERTY CAN GET A DECLARATION OF TITLE
“The law is well settled that the person claiming family property as personal property cannot get a declaration of title. See Atuanya V Onyejekwe (1975) NSCC, 89 at 91; Okelola v Adeleke (2004) 12 NWLR PT. 891 SC, at 319-320.
Although the counter-claim did not seek declaration of title, it was based on the premise that Appellant had no title to the land. Hence, the same fact used as defence to Appellant’s claim for trespass and injunction as heirs in possession from a deemed grantee of statutory right under the Land Use Act were relied upon to prove the counter-claim of Respondent for possession. In such a situation, title is deemed to have been put in issue by the parties. See (26) Agu v Nnadi (2002) 18 NWLR PT. 798, SC, 103 at 119-120 paras- G-A. -PER M. U. PETER-ODILI, J.S.C.
STATUS OF A JOINT TENANCY
“The case of Chinweze V Masi (1989) 1 NWLR PT 97.S. C P. 254 does not support the principle that a single child of one of the three alleged joint tenants and all of whom died survived by issues, is entitled to claim ownership of the land under the rule of jus accrescendi as held by the lower Court. A joint tenancy remains joint amongst the children who survived the joint tenants until it is divided. See Shonekan V Smith (1964) NSCC 129 at 33 …
Although the above case of Shonekan (Supra) was based on settlement, it is my humble view that in family property under customary, law, each member only has life interest and the property is vested in all the children and descendants in perpetuity until it is partitioned. See Alao v Ajani (1989) 4 NWLR PT. 113, SC, 1 AT 17 para – C.
In the light of the above, for the respondent to have a right to claim the property in dispute either for himself alone, or as property of his own father without reckoning that it is a family property of the Idi-lgis which 1st DW1 claimed owned it out of 12 Idi-lgis that comprises of the Kuforiji family council, he needed to apply to Court for an order of partition. See Ogunmefun v. Ogunmefun 10 NLR 8 at 83, followed by this Court per AGBAJE, JSC in Nzekwu V Nzekwu (1989) 2 NWLR PT. 104 SC, 373 at 406 paras- F-H where His Lordship held that the right to partition or live on family land are two distinct rights. -PER M. U. PETER-ODILI, J.S.C.
WHETHER EQUITY WILL AID A PARTY THAT IS GUILTY OF LACHES AND ACQUIESCENCE
“The law, is that a person in the position of Respondent will not be allowed to force back the hand of the clock belatedly; having made the Appellant change his position and expended monies relying on the uncalled EXHIBIT “D”, it was too late in the day for Respondent to suddenly wake in a fit of contrived belated awareness in 1997 to claim the land. See Bosah v Oji (2002) 6 NWLR PT. 762 SC, 137 at 158.
In that case under similar circumstances of laches it was held that equity is created in favour of the Appellant and that where a person has expended money on land of another in the expectation, induced and encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity is created, such that the Court would protect his occupation. See also Adekilekun’s case and Elabanjo’s cases supra).
The case of Idundun v Okumagba is not illustrative of the defence which may be set up to defeat a title in any of the five ways recognized by that authority. What the appellant urged upon the lower Court was about “misdirection” in the application of the ratio of that case. Although, a party may have proved his title in any of the five ways identified in IDUNDUN, he could still fail if the defendant makes out an unanswerable defence such as laches and acquiescence, limitation or extinguishment. Once those defences are established, it is immaterial that the counter-claimant has established his title to the land as he would still fail as the situation on ground portrays. It becomes too late for the Kuforiji family to complain.
See the case of (31) Adedeji V Oloso (2007) 5 NWLR (PART 1026) PP. 172-173, PARAS E-B. Where this Honourable Court held as follows:
“…Occupation of land for a long time may operate to oust the title of the real owner has been guilty of laches and acquiescence. However, acquiescence may not bear a claim unless certain conditions are fulfilled:
a. Adverse possession by the person in occupation, that is, a possession inconsistent with that of the owner.
b. The possession must have lasted for a long time;
c. The real owner must have been guilty of acquiescence Or laches whereupon the person who relied on it must have altered his position.” (EMPHASIS MINE) –PER M. U. PETER-ODILI, J.S.C.
DUTY OF A PARTY TO SUCCEED IN PROOF OF TITLE AGAINST A PERSON IN POSSESSION
“The appellant sought injunction to restrain the respondents actual and continue threat of trespass. Respondent was thus fixed with a heavy burden. See Adedeji V Oloso (2007) PT 1026 SC, 133 at 172.
In the Supreme Court case of ADEDEJI; in the lead judgment per OGUNTADE JSC, following Thomas V Preston Holder (1946) 12 WACA 78 held that the proof of title to displace that of a party who established root for his own title and is in possession must be substantiated.
Secondly, the respondent was asserting that appellant was a tenant on the land or that he was claiming under the title of a tenant on the land. This is a serious claim that is not lightly proved. In Dada V Bankole (2008) 5 NWLR PT. 1079 SC 26 AT 53, it was held that in a claim for title to land where the plaintiff claims that the defendant is his customary tenant on a piece of land and the defendant also claimed to own the land, the question before the Court is whether the defendant’s possession was with the plaintiff’s permission and so it is for the plaintiff to show that he put the defendant on the land”. –PER M. U. PETER-ODILI, J.S.C.
WHETHER A PARTY WITH CONTRADICTORY ROOTS OF TITLE CAN SUCCEED IN A DECLARATION OF TITLE TO LAND
“The Respondent in his bid to establish a better title, set up a variety of inconsistent roots of title which did not go back as far as the Kuforiji family to whom it is accepted that the land originally belonged. The plain truth is that a claimant in the position of respondent with ambivalent and contradictory roots of title cannot succeed as against appellant.
In a similar scenario to those present in this case on appeal, where a claimant to title over a land was found to have pressed several ambiguous bases of title, the Supreme Court had held that the case was bound to fall. See (24) Atuanya V. Onyejekwe (1975) NSCC VOLä 9, PAGE 89 at 91; Mogaji V. Cadbury Nig. Ltd (1985) 2 NWLR PT. 7 P. 393 SC (Supra)
The Court held in ATUANYA’s case that the claim was not free from ambiguity:
“In paragraphs 3 of the statement of defence as set out above, she claimed to be the absolute owner of the disputed land on the ground that she is a purchaser for value at the same time, she claims in paragraph 3A of the said statement of defence and also in her evidence that the land in dispute is made up of three plots, one of which was given to her by the late Udenba Atuanya in his lifetime in appreciation of the invaluable services which she alleged that she rendered to him during his illness, when as she claims, the other members of the family could not careless she claimed the late Udemba Atuanya constituted her a trustee for sale and that the money realized from the sale would be used for his funeral purposes, and also for the benefit of his younger children two should survive him…. But this allegation was not, in any way, substantiated at the trial. Indeed, no such document was ever produced in the Court below.” –PER M. U. PETER-ODILI, J.S.C.
DUTY OF COURT WHERE BOTH PARTIES TO A SUIT FOR DECLARATION OF TITLE TO LAND HAVE DEFECTIVE TITLES
“Even if the evidence of both parties was unsatisfactory, the Court must still determine who had a right to the land between them on sound legal basis. See Tinubu V Khalil & Dibbo Trans Ltd (2001) 11 NWLR PT. 577 SC 171 at 182-183 where the Supreme Court held that in an action where both parties claimed title,
“In the absence of a valid title the Respondent may still succeed in maintaining an action for trespass because the law is that even if a plaintiff is a trespasser, he can maintain an action against a later trespasser for damages and injunction… This is why a plaintiff who fails to prove title will not necessarily fail in his action in trespass. If he establish by evidence acts of possession, his claim for damages for trespass and an order of injunction may be granted” per UWAIFO JSC at 183 paras. B-C.
Following the Tinubu’s case, the lower Court should have found for the appellant who was in possession with the presumption upon him that ownership enured in his favour, along with his siblings which presumption the respondent had not rebutted. See Section 143 of the Evidence Act; Iledare v Ajagbonna (1997) 6 NWLR (pt. 507) 1 at 9.
Furthermore, the recital of the title document which appellant relied upon states that the land belonged to Kuforiji Family contrary to the contention of Respondent that it vested in his father, and form his father upon him by jus accrescendi. The contention of the respondent is untenable in law and that the lower Court was in error to have upheld the contention as to jus accrescendi. It follows that no evidence was led to effectively rebut the presumption in the recital to EXHIBITS ‘C’ and ‘D’. One huge gap in the respondent’s case that cannot escape attention is the root of title claimed by him.
If the land was not part of Kuforiji family land (as contended for respondent despite the recital to that effect in EXHIBIT “C” and “D”), how did the three grantors who executed the original deed of lease EXHIBIT “B” come about their so-called joint interest in the land? Neither in respondent’s pleadings nor in his evidence of that of his witness was this explained.
Facts in a recital if not challenged and effectively rebutted are conclusive proof of what it states. See Ashiru v. Olukoya (2006) 11 NWLR PT. 990, SC, 22 paras. B-E. Given the above presentation and coupled with the defence to the Respondent, the appellant proved better title regardless of the seeming defect in his title. The lower Court should have reversed the judgment of the trial Court against appellant and found for him as against respondent. See Kareem v Ogunde (1972) NSCC 66 in which case the Appeal Court held that where both parties to a suit for declaration of title to land have defective titles, the Court has a duty to uphold the claim of the party with a better title.-PER M. U. PETER-ODILI, J.S.C.
WHETHER A WRITTEN CONTRACTUAL AGREEMENT CAN BE VARIED BY PAROLE EVIDENCE OR ALTERED BY ORAL EVIDENCE
“A reiteration of the law is that when any transaction or contract of any grant or other disposition of property has been reduced to the form of document or series of documents, no oral evidence shall be admissible in order to vary or contradict the contents of such document. The documents speak for themselves. See (38) Union Bank Of Nigeria V Professor Ozigi (1994) 3 S.C.N.J 42 AT 55. Anyaegbunam V. Osaka (2000) 10 WRN 108 At 203 S.C. Adelaja v. Fanoiki(1990) 21 NSCC PAR 1 Page 343.
It is settled in law that a written contractional agreement cannot be varied by parole evidence nor altered by oral evidence hence it is difficult to situate the evidence of DW1, DW2 and DW3 which is tantamount to varying the counters of Exhibits C and D. –PER M. U. PETER-ODILI, J.S.C.
WHETHER ORAL EVIDENCE IS ADMISSIBLE TO VARY OR CONTRADICT WRITTEN DOCUMENTS
“Of note is that oral evidence is not admissible to vary or contradict written documents. Especially a document that has been in existence for 20 years or more, as in the case of EXHIBIT “D”, the same argument goes for EXHIBIT “C” the deed of surrender which was prepared by the lessees in EXHIBIT “B” which recited that the land belonged to Kuforiji family. A recital of 20 years old is presumed correct. The application is that the lessees must have been represented to in 1954 that they were leasing from Kuforiji family and not from the signatories a joint tenant to the exclusion of the other family members. See Section 162 of the Evidence Act, Cap 112, LFN, 2011.” –PER M. U. PETER-ODILI, J.S.C.
STATUS OF A STATEMENT MADE BY A PARTY INTERESTED AT A TIME WHEN LITIGATION WAS ANTICIPATED
EXHIBIT “F” was a minute book generated in-house by Respondent and his family members to be used as evidence that Kuforiji family had no interest in the land in dispute and thus advising Respondent to sue. Clearly this is a statement made by a party interested at a time when litigation was anticipated and made to maintain the case- as Respondent eventually did. By virtue of Section 91(3) of the Evidence Act, such document is absolutely inadmissible. See Ugwu v. Ararume (2007) 12 NWLR PT. 1048 SC, 367 at 453;
This minute book, Exhibit F cannot vary Exhibit D neither can it convey or transfer nor create any legal interest is or over the land in dispute. –PER M. U. PETER-ODILI, J.S.C.
INSTANCES THAT CAN JUSTIFY THE INTERVENTION OF THE SUPREME COURT TO INTERFERE WITH THE CONCURRENT FINDING OF THE LOWER COURTS
“The facts as now reviewed definitely justify the intervention of the Supreme Court to interfere with the concurrent finding of the Courts below on the question of who between appellant and respondent proved better title. Their lordships in the lower Court came to a perverse conclusion in the face of all that has now been exposed on the printed record. See Akinpelu V. Adegbore (2008) 10 NWLR PT. 1096 SC 531 AT 559 – 560”. –PER M. U. PETER-ODILI, J.S.C.
DUTY OF A PARTY IN LAWFUL PHYSICAL POSSESSION TO ESTABLISH SUFFICIENT INTEREST VESTING HIM WITH THE REQUISITE LOCUS STANDI TO INSTITUTE AN ACTION IN DEFENCE OF THE PROPERTY
“Just for emphasis and support, I would like to say that both lower Courts took their “eyes off the ball” on the issue of the appellant’s locus standi to institute the action against the respondent as the person who had been in lawful physical possession of the property from the year 1974, when by Exhibit “C”, the Board of the Baptist Convention surrendered the un-expired term of the lease from the trio of the Kuforiji brothers to Rev. (Dr) J. T. Ayorinde; the appellant’s uncle, and from 1977 when Rev. (Dr.) Ayorinde died intestate as well from 1996 when the wife died, also intestate, leaving the Appellant in actual exclusive possession. From the undisputed facts in the Appellant’s pleadings, he did show sufficient interests vesting him with requisite locus standi to approach the Court for the remedies sought against the Respondent. See Imona-Russel v. Niger Constr. Ltd. (1987) 3 NWLR (pt. 60) 298, Okolo v. Dakolo (2006) 14 NWLR (pt. 1000) 401, Adepoju v. Oke (1999) 3 NWLR (pt. 594) 154, Oyadare v. Keji (2005) 7 NWLR (pt. 925) 571. –PER M. L. GARBA, J.S.C.
CASES CITED
NONE
STATUTES REFERRED TO
Administration of Estates Cap 1 of the Laws of Ogun State, 1978
Constitution of the Federal Republic, of Nigeria 1979
Court of Appeal Rules 2016
