Guardian

‘A’ PURCHASED a parcel of undeveloped land a long time ago and the purchaser started a building on it, which development he had taken to lintel level, then the purchaser died. His children, who, as youngsters, used to follow their father to the building site when he was working on it, went abroad for further studies but returned to the country with the hope to continue and complete the house, which their father could not finish before his death. Unfortunately, the purchase receipt of the land seems to be missing, possibly while moving out the personal belongings of the deceased from their living quarters after his demise. The vendor of the land has, however, refused to allow the children on the land, insisting that they either produce the purchase receipt or re-purchase the land at a very exorbitant cost. The children are perplexed as to how to recover the property of the late father.

The legal opinion

The children of the purchaser can seek redress by filing an action in court to seek either of these two reliefs; a declaration of title to the land or they can sue the vendor of the land for trespass.

Declaration of title

If they choose to file an action for declaration of title, they have certain hurdles to cross. A claim for declaration of title must succeed on its own strength not on the weakness of the defence. The burden of proof is on the claimant who is claiming the title and the burden does not shift to the defendant. This is not to say that the standard of proof in a claim for declaration of title is higher than what is required in civil cases but the difference is that the burden of proof, not the standard, rests on the claimant.

According to the Supreme Court in Idundun v Okumagba (1976) 10 SC 227, ownership of land may be proved in any of the following five ways:

By traditional evidence

By production of documents of title which are duly authenticated;

By acts of selling, leasing, renting out all or part of the land, or farming on it or a portion of it; or

By act of long possession and enjoyment of the land; and

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.

In the instant case, the applicable root of title is purchase. For a purchaser to succeed in a claim for declaration of title to land, he must exhibit valid and admissible documents of title. Such documents of title include:

A purchase receipt;

A deed of conveyance or assignment;

A certificate of occupancy.

He may also have to call as witnesses those who sold to him. But in the case at hand, the children of the purchaser cannot even lay their hands on the purchase receipt, being the most elementary document of title. Their situation is also aggravated by the fact that the vendor to their father is the adverse claimant, so they cannot call him as a witness. Therefore, it is apparent that they cannot discharge the burden of proof, which the law places on a purchaser in an action for declaration of title. Consequently, they are left with the second option, which is an action in trespass.

Trespass to land

For the children of the diseased (hereinafter referred to as claimants) to explore this option, they have to take steps to work on the land. In the process, the vendor to their father (hereinafter referred to as defendant) will resist any further work on the land. At that point, they can then file an action in trespass. In filing an action for trespass, they should pray the court for two reliefs; namely damages for trespass coupled with a perpetual injunction restraining the defendant from further acts of trespass.

For a claimant to succeed in an action in trespass, the law is that such a person must be in possession. This position of the law was succinctly put by the Court of Appeal in Odusanya v Osinowo (Part NWLR 646) thus:

A plaintiff, who fails on his claim for declaration of title, may still succeed in an action for trespass since trespass to land is actionable at the suit of the person in possession of the land and that person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment on it against all wrong-doers except a person who could establish a better title. Therefore, anyone other than the true owner who disturbs his possession of the land can be sued in trespass and in such an action; it is no answer for the defendant to show that the title to the land is in another person. To resist the plaintiff’s claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.  See also Amakor v Obiefuna (1974) 3 S.C Pp 581-582, paragraph H-C.

I must hasten to state that an action in trespass in this case does not totally render the case of the claimants inviolable but to a large extent, it strengthens their case. This is because they have built on the land and the building on the land is a proof of exclusive possession. As a claim for trespass is rooted in exclusive possession or the right to such exclusive possession to the land in dispute, all the claimant needs to do is a proof of that exclusive possession. This is more so as the building on the land has been there for a long time and has been met with no adverse claim, another conclusive proof that they are in exclusive possession and which also raises a presumption of title in their favour. See section 143 of the Evidence Act, which states:

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

However, it should be remembered that in this case, the defendant is the vendor to the claimant, so he is most likely to resist the claim to trespass and make a counter-claim for a declaration of title to the land or at least plead in his statement of defence the facts that he is the owner. If that happens, the question of title is put in issue. See Amakor v Obiefuna supra, where the Supreme Court said: But once the defendant claims to be the owner of the land in dispute, title to it is put in issue and in order to succeed, the plaintiff must show a better title than that of the defendant.

The implication of the foregoing is that the claimant will have to fall back on pleading the facts that they have bought the land from the defendant even though the purchase receipt was lost.

But the long, unchallenged possession, survey plan and evidence of those that participated in the building may help to support the claim that they bought from the defendant and which was why the defendant did not challenge them when they were building and even after the building has been raised up to lintel level, there was no challenge from the defendant.

The state of the pleading at that point is that the claimant will do so as a reply to the statement of the defence. This gives the claimant further opportunity of raising, on point of law, statute of limitation, which may avail them. Because the law is that a person who left his land in possession of an adverse claimant for twelve years is deemed to have slept on his right. See Statute of Limitations of various states of the federation or in the alternative, plead equitable defences such as latches and acquiescence, proprietary estoppel and similar defences. These defences are available to the claimant even where the defendant files a counter-claim based on customary ownership.

The doctrine of latches and acquiescence is purely equitable in nature and, therefore, applies to equitable claim. The remedy is discretionary in nature hence, it does not follow as of course. All surrounding circumstances will be taken into consideration in its application. See Nwakobi Nzekwu (1961) 2 SCNLR 138.

This is where an action in trespass is preferable in this case to an action for a declaration of title because those equitable defences can only be used as a shield and not as a sword. And since the claimants are heavily relying on possession, they have to downplay the need to plead documents, which is inevitable in an action for declaration. In the final analysis, the court is likely to be persuaded by the overwhelming evidence of possession, which remained unchallenged for quite a long time even by the defendant. The court may equally hold in favour of the claimants by considering the oral evidence of the claimants that they bought the land as more credible and convincing than that of the defendant disputing sale to the claimants.