➥ CASE SUMMARY OF:
Mr. Frank Anyi & Ors. v. Chief Harry Ayoade Akande & Ors. (2017) – CA
by “PipAr” Branham-Paul C. Chima.
Court of Appeal – CA/L/334/2014
➥ JUDGEMENT DELIVERED ON:
Friday, the 17th day of February, 2017
➥ AREA(S) OF LAW
Earlier in time;
Priority of title.
➥ PRINCIPLES OF LAW
⦿ FIVE METHODS OF PROVING TITLE TO LAND
It is now well settled law that in a claim for declaration of title to land, a party claiming title to land must do so by proving with credible evidence one or more of the five methods of proving title to land, namely: A. Evidence of traditional history of title; B. Production of genuine and valid documents of title; C. Acts of Ownership numerous enough; D. Acts of possession over a long period of time and E. Act of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. The 1st Appellant and the 1st Respondent, thus had open to them one or more of the above five methods to prove their title to the land in dispute and the law is that proof of any of these methods by credible evidence would be sufficient to ground an action for declaration of title to land. — B.A. Georgewill, JCA.
⦿ UNCHALLENGED EVIDENCE IS GOOD EVIDENCE IN WHICH A COURT CAN ACT ON
I bear in mind in doing so that in law unchallenged evidence is good evidence on which a Court should act to make findings of facts. See Nwabuoku v. Ottih (1961) 1 All NLR 487 @ p. 490. See also Odulaja v. Haddad (1973) 11 SC 357; Isaac Omoregbe v Daniel Lawani (1980) 3 – 4 SC 108 @ p. 117; Oluhunde & Anor v. Prof. Adeyoju (2000) 14 WRN 160. — B.A. Georgewill, JCA.
⦿ MEANING OF RECEIPT – WHEN A RECEIPT WILL AMOUNT TO MEMORANDUM OF SALE
What then is a receipt? A receipt is defined simply but succinctly as an acknowledgment of money paid on discharge of a debt. It is my view therefore, that a receipt of payment even in the form of a letter acknowledging payment for sale or transfer of title to land would amount in law to a memorandum of sale of land once it contains the constituent elements of a memorandum of sale and thus it need not consist of only one document as it may be made out from several documents if the documents are connected together as referring to the land, the subject matter of the sale. See Osborn’s Concise Law Dictionary. See also Alhaji Odutola v Papersack Nig. Ltd. (2006) 18 NWLR (Pt. 1012) 486; Paye v. Gaji (2003) FWLLR (Pt. 163) 1; Okoro v. Ogara (1964) ENLR 99. See also Adepate V. Babatunde (2002) 4 NWLR (pt. 756) 99. — B.A. Georgewill, JCA.
⦿ WHEN IS THERE A VALID SALE OF LAND
In law therefore, a valid sale of land is constituted where there is payment of money as consideration, acknowledgment of receipt of the purchase money and execution of deed of conveyance in favour of the purchaser by the Vendor. See Erinosho v. Owokoniran (1965) NMLR 479. See also Ogunbanbi v Abowab (1951) 13 WACA 222; Onafowokan V Oshopitan (2009) 1 WRN 142 @p. 166 — B.A. Georgewill, JCA.
⦿ QUI PRIOR EST TEMPORE POTIOR EST JURE – EARLIER IN TIME IS STRONGEST IN LAW
So, then at law as in equity the basic rule is that estates and interest order of primary rank in the creation, Qui prior est tempore potior est jure,. he who is earlier in time is stronger in law. Thus where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other. Where therefore, the equities are equal and neither claimant has the legal estate, the first in time prevails as in the instant appeal, the equitable interest of the 1st Respondent being prior in time to the equitable interest of the 1st Appellant, the law is that it is the 1st Respondent’s equitable interest in the land in dispute being first in time that would prevail over the equitable interest of the 1st 48 Respondent since the equities are equal. — B.A. Georgewill, JCA.
⦿ CLAIMANT MUST RELY ON THE STRENGTH OF HIS OWN CASE AND SUPPORT FROM EVIDENCE OF DEFENDANT
I bear in mind the well-established principle of law that in every civil action in which a declaration is sought from the Court, a claimant who seeks the declaratory relief must succeed on the strength of his own case as made out creditably in the evidence put forward by him in support of his case and not to merely rely on the weakness or even absence of the Defendant’s case. However, where the evidence of the Defendant supports the case of the claimant, he is perfectly entitled to rely on such evidence. See Nsirim v Nsirim (2002) FWLR (pt. 96) 433 @ p. 441. — B.A. Georgewill, JCA.
⦿ LITIGATION PROCESS IS AIMED AT FINDING THE TRUTH ACCORDING TO LAW
The law is well settled that notwithstanding the difficulty of discerning absolute truth by the mechanism of litigation and judicial discernment hinged upon evidence before the Court and irrespective of the imperfections of men, the litigation process is aimed at finding out the truth according to law and therefore, a party worthy of favorable consideration of the Court must endeavor to be consistent in both the facts he pleads and the evidence he leads in proof of those facts. A party will not therefore, be allowed to present at the trial evidence which are inconsistent with the case he has pleaded. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Ezemba v. Ibeneme (2009) 14 NWLR (Pt 789) 623. — B.A. Georgewill, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Biobele Abraham Georgewill, J.C.A.
⦿ FOR THE APPELLANT
Adekunle Oyesanya, SAN.
⦿ FOR THE RESPONDENT
A. J. Owonikoko, SAN,
Mrs. O. A. Odusanya.
➥ CASE FACT/HISTORY
On 16/5/2006, the 1st Appellant as claimant had instituted Suit No. LD/771/2006 by means of a writ of Summons against the 2nd Respondent and others as Defendants claiming the following reliefs, inter alia, “a Declaration that the claimant is the person entitled to a grant of the Governor’s consent in respect of the Assignment of all that parcel of land situate, lying and being at Block 3, Plot 31, Lekki Residential Scheme, Phase I, also known as Plot 31, Otunba Yomi Oshikoya street, as covered by a Deed of Assignment made between the Claimant and the Administrator of the Estate of Late Dahiru Mohammed, the original allottee of the said land.”
The 1st Respondent had before being served with the suit of the 1st Appellant also instituted suit No. LD/1303/2006 by means of a writ of Summons against the 1st Appellants and others claiming the following reliefs, inter alia, “A Declaration that the 1st Claimant is the person entitled to the consent of the Governor of Lagos State to an Assignment of the unexpired residue of the term granted to one Dahiru Muhammed (Deceased) under and by virtue of a Certificate of occupancy No. 12/12/1993 of Plot 31, Block 3, Lekki Phase I of Lagos State Government Residential Scheme.”
The parties filed and exchanged pleadings and on 27/10/2008, both suits were consolidated at the Case Management Conference and Scheduling stage. The matters went to trial. On 4/2/2014, the Court below entered judgment in favour of the 1st Respondent granting him the title to the land in dispute.
The Appellants were thoroughly dissatisfied with the judgment and had appealed against the said judgment to this Court.
➥ ISSUE(S) & RESOLUTION(S)
🆕I. On the pleadings and evidence led, was the Court below right when it held that as between the 1st Appellant and the 1st Respondent it was the 1st Respondent that proved a valid title to the land in dispute and was thus entitled to the grant of a right of occupancy over same and thereby nullifying the Deed of Assignment of the 1st Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE 1ST APPELLANT HAD NOTICE THAT THE LAND HAD ALREADY BEEN PURCHASED BY THE 1ST RESPONDENT
“On the proved evidence, it would appear that the 1st Appellant who had between 2001 and 2002 been confronted by the 1st Respondent of his prior purchase of the land in dispute from the undisputed original owner, had ignored the warning and refused to exercise caution required of a diligent buyer of land and proceeded to conclude and complete the purchase of the same land in dispute from the 2nd – 4th Appellants in 2005, that is at least three years after the 1st Respondent had brought to the notice of the 1st Appellant his prior interest in the said land, cannot in law be regarded as an innocent purchaser for value without notice. This is further buttressed by the devastating cross examination evidence of the 1st Appellant as CW1 when he testified inter alia thus: ‘The document I have in respect of the land in dispute is the Certify True Copy of Certificate of Occupancy given to me by the Administrators of Estate and the Deed of Assignment they gave to me when I paid ….. Exhibit C4 was handed over to me by the Administrators of the Estate when I paid for the land … Exhibit C4 has always been in my custody. I saw it before I paid, and so proceeded to purchase the land and paid … When I went to the police I went with the Certificate of Occupancy, Exhibit C4. The copy I went with was made from Exhibit C4 … I see Exhibit C4, it is dated 29/12/2005.’ See pages 712 – 713 of the Record and pages 14 – 17 of the record for Exhibit C4 dated 29/12/2005.”
B. THAT THE 1ST RESPONDENT HAS CONSTRUCTIVE POSSESSION
“I find the unchallenged evidence of the 1st Respondent of the delivery of the original certificate of occupancy and the notional delivery of possession of the land in dispute by the original owner, Alhaji Dahiru Muhammad in his lifetime to the 1st Respondent and the consequent entry into the land by the 1st Respondent with his Surveyor and Architect without any let or hindrance from any person including the 2nd – 4th Appellants as sufficient evidence of acts of constructive possession of the land in dispute. In law therefore such an act of constructive possession coupled with the purchase receipts and memorandum of sale amounted clearly to creating an equitable title in the land in dispute in favour of the 1st Respondent, which is as good as a legal estate and can stand against even a legal title if acquired with notice of such an equitable title.”
“In the result, the judgment of the High Court of Lagos State, Coram: K. O. Alogba J, in Suit No. LD/771/2006: Frank Anyi & Ors. V. The Executive Governor of Lagos State & Ors and Suit No. LD/1303/2006: Chief Harry Ayoade Akande V. Frank Anyi & Ors, delivered on 4/2/2014 is hereby affirmed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
⦿ WHEN A DOCUMENT WILL SATISFY THE DESCRIPTION OF A NOTE OF MEMORANDUM
In Adeniran v. Olagunju (supra) @ p. 169, this Court per Amaizu JCA., had pronounced emphatically on what a memorandum of sale of land should contain inter alia thus: “A document that will satisfy the description of a note or memorandum within the meaning of the statutory provision must contain the following details: 1. Name of the parties or enough description of the parties; 2. The ample description of the subject matter of the contract 3. The consideration of the alleged contract and 4. The document must contain the signature of the party be charged or that of his agent or a representative duly authorized by him.”
⦿ EVIDENCE NOT CHALLENGED OR CONTRADICTED MUST BE ACCEPTED AS THE CORRECT VERSION
Saipem SPA vs. India Tefa (2001) FWLR (pt 74) 377 @p. 394, where this Court had held firmly inter alia, “When evidence of a witness has not been challenged, contradicted or shaken under cross-examination and such evidence is not inadmissible in law, provided the evidence is in line with the facts so pleaded, the evidence must be accepted as the correct version of what was expected to be proved. The Court is not only entitled to but also has no reason not to accept it.”
➥ REFERENCED (OTHERS)