➥ CASE SUMMARY OF:
Chief Francis Adewale Onafowokan V. Chief Wasiu Shopitan (CA/I/40/06, 3 Apr 2008)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Proof of title;
Exclusive possession.
➥ CASE FACT/HISTORY
From his pleadings and evidence, appellant’s case at the trial court is that, he purchased the land in dispute from the Oluye family. This was in 1982. The land measures 3,630,057 square meters situate at Poolo Ogijo in Ogun State more particularly delineated in the appellant’s surveyplan, exhibit The appellant was put into possession by the family in the same year. It is the appellant’s further case that, the sale to him of the land in dispute was facilitated by Pa Shopitan, the respondent’s uncle, who not only showed the appellant the land in dispute, but introduced the latter to the then head of the Oluye family. After the appellant’s persistent demands following the sale of the land to him, the head of the Oluye family and the representatives issued the appellant with exhibitsand C, the purchase receipt and certificate of grant respectively. The late Pa Shopitan who introduced the appellant to the Oluye family was a member of the Folukan branch of the Oluye family. The respondent, who was made Baale of Pooloper exhibitin 1997, entered the land in dispute without appellant’s consent and alienated same inspite of appellant’s protests. The appellant’s claim rested on these facts.
On the other hand, the respondent’s case is that the land in dispute is owned by the Folukan branch of the Oluye family. The respondent denied being a troublemaker who sold off the Oluye family property without the family’s permission.
At the end of trial, both the plaintiff and defendant/counter-claimant were non-suited in a judgment of the trial court per Majekodunmi J, dated 31 May 2005. The plaintiff is dissatisfied with the judgment and has appealed to this court on a notice containing eleven grounds. Parties have filed and exchanged briefs including appellant’s reply brief. At the hearing of the appeal, the briefs were adopted and relied upon as arguments for, or against the appeal.
➥ ISSUE(S)
I. Whether the honourable trial Judge had the power to make an order of non-suit in this matter?
II. Whether or not either party to this appeal had, on the pleadings and evidence before the court, made out his case to be entitled to the reliefs he claimed?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE POWER OF A JUDGE TO NONSUIT MUST BE SPECIFICALLY PROVIDED BY STATUTE
‘Appellant’s learned counsel is correct in his submission that a court’s power to non-suit must be statutorily conferred for the power to be invoked in the first place. The case of Kaura and Ors. v. U.B.A. Plc. cited by counsel in support of this contention is apposite: Egwu v. Madunkwu (1997) 4 NWLR (Pt. 501) 574; Omoregbe v. Lawani (1980) 3-4 SC 108 and Elias v. Omo – Bare (1982) 5 SC. Respondent’s learned counsel’s retort that the lower court’s decision non-suiting the appellant stems from that court’s exercise of its inherent jurisdiction pursuant to section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria is unavailing. As omnibus as inherent powers are, they are held to be incapable of extending the jurisdiction of a court of record. Apower statutorily conferred on a court but statutorily taken away ceases to be power the court can inherently exercise.’
THE COURT CAN ONLY NONSUIT IF ITS OWN RULES PROVIDE FOR IT
‘The facts of the instant case on the basis of which the appellant’s first issue is distilled seem to re-enact what occurred in Tinubu v. Khalil and Dibbo Transport Ltd (2002) 11 NWLR (Pt. 677) 171 at 182 of the report, Uwaifo JSC in stating the Supreme Court’s decision on a court’s purported exercise of inherent powers where such powers had by virtue of a statute been invested in the court but which powers had equally by legislation been taken away at the time of its invocation by the court, held thus: “The respondent’s counsel has argued before us that the trial court had inherent power under section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria to non- suit or strike out actions even where the rules of court failed to provide for such powers. I do not think the issue of non-suit is as simple as that. Although section 6(6)(a) of the Constitution of the Federal Republic of Nigeria provides that the judicial powers vested in the courts shall extend to all inherent powers and sanctions of a court of law. It has not been decided that a court may make an order of non- suit even when the rules of that court appear to have dispensed with that power. Power that is conferred on a court by statute or by rules of court cannot be called inherent power. When therefore that power is taken away, it ceases to be power that can be exercised and so there can be nothing inherent about it to make it exercisable… The High Court Civil Procedure Rules, 1972 of Lagos State omitted the order under which the High Court could exercise its power to order a non- suit… once it was omitted it would seem that the High Court could not make that order because by virtue of the general jurisdiction conferred on the High Court of Lagos State 1967, it could only, in addition to any other jurisdiction conferred by the Constitution of the Federal Republic of Nigeria or by the Laws of the High Court or any other enactment, possesses and exercise “all the jurisdiction , powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England. It has been said that since the introduction of the 1883 rules of the Supreme Court, the High Court of England retains no power to enter a non-suit: The Supreme Court Practice, 1999 Vol. 1 page 339- 340, order 21/5/1; Fox v. Star Newspaper Co . (1900) AC 19 . It would therefore appeal that if the High Court of England no longer has jurisdiction to order non- suit, the High Court of Lagos cannot exercise that power under its general jurisdiction it can only do so if its own rules of court provide for it”.’
‘In the instant case, the 1967 Ogun State High Court (Civil Procedure) Rules supplanted by the 1987 rules currently applicable to the lower court provided under rule 3 of Order 30 as follows: “3 The court may in any suit, without the consent of parties, non- suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court”. The foregoing rule of court which speaks for itself has been omitted A from the 1987 rules currently applicable to the lower court. Since there is no provision in the current rules for an order of non-suit, the view that the power has been taken away is an informed one. It follows, therefore, that the lower court at the time it made the order non- suiting the claim of the appellant as well as the counter-claim of the respondent never had the power of making the order as the power had been deleted from the rules of court that was then in force. An order decreed by a court that lacked the jurisdiction of making same is a nullity and the one made by the lower court in the instant case is so adjudged: Anyakwu V.A.C.B. Ltd (1976) NSCC (Vo1. 10) 113 at 122 and Lawal v. N.E.P.A. and Anor. (1976) NSCC (Vo1. 10) 163’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[BOTH PARTIES DID NOT LEAD EVIDENCE TO ESTABLISH TITLE TO THE LAND
‘Nowhere did the appellant in these or even other paragraphs assert the names of the principal members of the Oluye family who sold, witnessed the sale and delivery of the land in dispute which he claimed to have purchased from the said family to him. Inspite of the respondent’s denial of appellant’s claim and counter-claim that the land in dispute belonged to the Folukan Branch of the Oluye family, the appellant again did not plead and prove those facts that would establish Oluye family’s ownership of the land in dispute. Even PW2, the head of the Oluye family did not proffer any evidence in his testimony in this regard. The appellant seemed to rely principally on exhibits A,andwithoutnecessarily bothering himself as to whether the Oluyefamily from whom the documents originated indeed had such title to confer on him. The respondent’s denial of liability to the appellant’s claim as well as the former’s counter-claim are based crucially on the averments in paragraphs 3. 4, 7, 8, 9, 10, 11, 12 and 23 of the statement of defence. Respondent too did not aver in his pleadings those facts the proof of which would establish that the Folukan Branch of the Oluye family rather than the main family or any of the other five branches owned the land in dispute. How did the Folukan branch come to own the land: was it through partition or allotment or even grant?’
APPELLANT DID NOT PROVE THAT THE LAND WAS SOLD TO HIM
‘The appellant in the instant case by his pleadings and evidence did not, beyond exhibits A,and C, establish those other facts which are most important in the proof of his title to the land in dispute. The point that the appellant seemed to have ignored and at his peril is that, whether under Customary or English Law, a vendor can only pass the title he indeed has. The Oluye family the appellant claimed he purchased the land in dispute from must have the title in the first place to be able to transfer same to him. The respondent had joined issues with the appellant on the ownership of the land in dispute. As the trial court rightly held at page 129 of the record of appeal, the plaintiff had theduty, in that circumstance, of pleadingand provingby oral evidence the origin of title of theOluye familyfrom whom he claimed deriving his own title. Mere production of documents by the appellant as proof of his title when the disputed root of title of his grantor had neither been established nor admitted does not certainly suffice. Alade v. Awo (1974) 5 SC 215, Bamgboye v. Olusoga ( 1996) 4 NWLR (Pt. 444)250 , and Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610. Appellant’s undue reliance on exhibitsand C, the conveyance and receipt of payment places him at many disadvantages.’
‘As stated earlier in this judgment, the appellant did not prove that he had been put into possession by the Oluye family who sold the land to him. It follows that under both systems the appellant that had not been put into possession by the vendor family had not acquired legal or equitable interest capable of transformation into the latter. Folarin v. Durojaiye . The trial court’s finding at page 128 of the record to the effect that exhibitat best confers an equitable interest enforceable in an action for specific performance is to this extent manifestly an obiter since that is, not what the appellant prayed for. The court’s impeccable conclusion is that the appellant who did not prove his case is not entitled to the reliefs he asked the court. The appellant’s claim should have been dismissed instead of the non-suit ordered by the court. The submissions of appellant’s learned counsel under the appellant’s 4th and 5th issues are equally untenable. Under the former, counsel had insisted that the burden of proof had shifted to the respondent with the appellant’s proof that the land in dispute belonged to the Oluye family. Under the latter issue strenuous effort had been expended by counsel to impress us that the lower court had failed to put into consideration the issue of the credibility of DWl and DW2 in coming to its conclusion on the appellant’s case. The point had been made by and I agree with respondent’s learned counsel that, in an action for declaration of title, trespass and injunction as in the instant case, the principle has become trite that the plaintiff succeeds on the strength of his own case and not on the weakness of the defendant’s case. This principle applies to the case of the appellant as it does that of the respondent herein who had counter-claimed for damages for trespass and injunction over the same land in dispute. Although, respondent did not assert his title to the land, the point has earlier been made in this judgment that , where parties claim possession concurrently in a case, the party with a better title to the land is deemed to be in possession. It remains the law that , the appellant and the respondent in relation to their claim and counter-claim must rely on the strength of their respective cases rather than on the weakness of the case made by the one in defence to the other’s case. The appellant herein must, even where the respondent had admitted the claim or failed to file a statement of defence, if the trial court is to oblige him the declaratory reliefs he sought, lead satisfactory evidence in proof of his claim. The same principle rules the respondent in relation to the counter-claim. The non- denial or admission of the one of the other’s claim or counter-claim does not alleviate the burden the law places on them to prove their respective cases. Titilayo v. Olupo (1991) 7 NWLR (Pt. 205) 519; Omu v. Agu (1996 ) 5 NWLR (Pt. 451) 652; Makanjuola v. Ajilore (2000) FWLR (Pt. 8 ) 1328; Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 656 and Adesanya Aderonmu .’
THE APPELLANT HAD NO EXCLUSIVE POSSESSION TO ENTITLE HIM TO LONG POSSESSION
‘The lower court appreciated this principle and for that reason, proceeded to determine whether or not the appellant had actual exclusive possession of the land in dispute. The court held thus: “On acts of possession pleaded by the plaintiff in paragraphs 18 and 19 of the statement of claim, the plaintiff gave oral evidence that he fenced the land in dispute, put up a signboard proclaiming his ownership and deposited several items on the land. The plaintiff has also given evidence before this court that five of the six plots which he bought have been alienated by the defendant and there are buildings on them. The defendant has left him only one plot. His own signboard has been removed while many other signboards are erected on the land in dispute. In the same view, all the items he deposited on the land have been removed bythe defendant. The evidence of DW1 and DW2 also buttressed the plaintiff’s evidence when they told the honourable court that some members of the family who bought land from the Olufolukan Branch have built houses on the land in dispute. From the foregoing, I find as a fact that the plaintiff never had possession of the land in dispute”. The foregoing findings of fact and conclusion of the lower court cannot also be faulted. As the court rightly held, only such positive acts of possession extending over an appreciable period of time constitutes exclusive possession that is protected by the law. Appellant’s deposit of items of building materials and erection of wall and signboard, if ever done, were solitary, occasional acts insufficient enough to support a claim for trespass. This is all the more so because of the appellant’s failure of establishing that his acts of depositing the building materials and/or erecting the signboard is the result of any validly acquired right. The trial court’s refusal to grant the appellant his relief for trespass against the respondent must therefore persist. Duru v. Onwumelu (2001) 12 SC (Pt. 11) and Arefunwan v. Barber (1961) All NLR 887. Appellant’s 6th issue fails as well.’]
.
.
.
✓ DECISION:
‘The appeal to the extent that the lower court’s order of non-suit has been adjudged a nullity and set-aside succeeds. The reliefs claimed by both parties which had not been made out, are hereby accordingly dismissed. The otherwise unmeritorious appeal is hereby dismissed with costs put at N30,000.00 (thirty thousand naira) in favour of the respondent.’
➥ FURTHER DICTA:
⦿ VALID SALE OF LAND UNDER CUSTOMARY LAW
Prerequisites of a valid sale of land under customary law have been laid down in seemingly countless number of judicial decisions, in particular Cole v. Folami (1956) 1 FSC 66. By these authorities, the appellant proves a valid purchase and absolute title to the land in dispute under customary law on pleading and proving that the sale to him bythe Oluye family was not only concluded by but in the presence of named witnesses who in addition had delivered possession of the land in dispute to him. Folarin v. Durojaiye ; Akpadiaha v. Elemosho (1964) 1 All NLR 154. — M. D. Muhammad JCA.
⦿ VALID TRANSFER OF LAND UNDER ENGLISH LAW
Valid transfer of title to land under English Law, on the other hand, is made where there is a sale, payment of money or consideration, acknowledgment of receipt of the purchaser money and execution of deed of conveyance in favour of the purchase. Erinosho v. Owokoniran (1965) NMLR 479 and Ogunbambi v. Abowab (1951)3 WACA 222 where it was further held that on the event of a sale under English Law where the vendor did not execute a deed of conveyance, the vendee that had been issued receipt of payment of the purchase money and put into possession of the property acquires equitable interest only. This principle had been re-stated in Folarin v. Durojaiye by Obaseki JSC and in his characteristic simplicity thus: “If a person sells his land to another and fails to put the person in possession, he retains possession. The payment of money A by the other person and receipt of money by the owner does not per se amount to a transfer of possession to the purchaser. There must be either a conveyance executed in his favour or entry into possession by the purchaser to clothe him with legal title in the 1st instance and equitable in the 2nd instance. — M. D. Muhammad JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
M. D. Muhammad JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Rotimi Ogunleye.
⦿ FOR THE RESPONDENT(S)
C. Okoro.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
