3PLR – ALHAJI RABIU NUNKU V. JOHN AYA & ANOR

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI RABIU NUNKU

V.

JOHN AYA & ANOR

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 3RD DAY OF JUNE, 2013

CA/J/204/2006

3PLR/2013/11 (SC)

 

 

OTHER CITATIONS

(2013) LPELR-21186(CA)

BEFORE THEIR LORDSHIPS

JA’AFARU MIKA’ILU, J.C.A

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

MOHAMMED AMBI-USI DANJUMA, J.C.A

 

BETWEEN

ALHAJI RABIU NUNKU – Appellant(s)

AND

1. JOHN AYA
2. AKWANGA LOCAL GOVERNMENT – Respondent(s)

 

REPRESENTATION

Terna Ageizua, Esq. holding the brief of T.D. Pepe – For Appellant

AND

1. T. Panwal, Esq. For 1^st Respondent

2nd Respondent served a hearing Notice but absent. – For Respondent

 

ORIGINATING STATE

Nasarawa State: High Court

 

MAIN ISSUES

REAL ESTATE/LAND LAW:- Proof of title to land – Sale agreement in local language, Hausa – Weight where not translated into the language of the court – Purported sale document containing no description of land – Effect

PRACTICE AND PROCEDURE – APPEAL:- Failure to raise issue of limitation as a point of preliminary objection- Whether can be raised as fresh issue without  leave on appeal – Findings of fact of trial court – Attitude of appellate court to invitation to interfere therewith

PRACTICE AND PROCEDURE –ACTION:- Standard of proof in civil cases – How discharged

PRACTICE AND PROCEDURE – JURISDICTION:-Special defences –  When to raise a challenge to jurisdiction based on a special defence such as laches, acquiescence and/ or statute of limitation

PRACTICE AND PROCEDURE – PLEADINGS AND EVIDENCE:- Binding nature of pleadings – Whether trial court can reject any evidence which is contrary to parties’ pleadings – forms of evaluation of evidence

 

 

MAIN JUDGMENT

MOHAMMED AMBI-USI DANJUMA, J.C.A (Delivering the Leading Judgment):

The Appellant herein had by an endorsement in paragraph 7 of the statement of claim dated and filed on 25/9/2003 at the Nasarawa State High Court sitting in Akwanga claimed as follows:-

“A.     A declaration that the Plaintiff is the lawful owner/allottee of the parcel of land lying, being and situate at behind express Hotel, Wamba Road, Akwanga measuring about 0.010 hectares, and that he is entitled to the grant of a statutory Right of Occupancy over the land.

1. A declaration that the purported allocation of the aforesaid by the 2nd Defendant to the 1st Defendant is irregular, null and void and that the Certificate of Occupancy also issued to him is also null and void.
2. A perpetual injunction restraining the Defendants from trespassing on the land aforesaid.
3. The sum of One Million Naira (N1,000,000.00) only being damages for trespass.

 

To prove its case the Appellant called three witnesses and tendered some Exhibits -‘1’, ‘2a’ and ‘2b’, ‘3’, ‘4’ and ‘5’ respectively.

 

The 1st Defendant/Respondent called 3 witnesses while the 2nd Defendant/Respondent called only one witness.

 

At the close of the case and by consent of Counsel for both parties, written addresses were submitted and the land in dispute was visited. At the close of address, the trial court entered Judgment for the 1st Defendant and against the Plaintiff by dismissing the suit and refusing all the reliefs claimed. (See the Judgment at pages 70-99 of the Record of Appeal.
Dissatisfied with the said Judgment, the Plaintiff has now instituted this appeal wherefore by his Notice of Appeal filed on 16/05/06 and contained at pages 100 to 106 of the Record 9 (nine) Grounds of Appeal have been set out.
After the transmission of the Record of Appeal on 18th August, 2006 and the fifing of the Appellant’s Brief of Argument on 20/12/06 the 1st Respondent by way of Motion on Notice dated 25th May, 2011 and brought pursuant to Order of Rules (1) and 10(1) of the Court of Appeal Rules 2007 (the applicable) and filed on 2/6/11 was granted leave to file the 1st Respondent’s Brief of Argument out of time. The said application was granted same dated and 1st Respondent’s Brief of Argument was deemed filed and served on the said 23/6/11.
On his part, the 2nd Respondent by Motion dated and filed on 1/6/11 was also granted leave to file his Brief of Argument out of time. The said Brief was accordingly deemed filed on 2/6/11.

 

At the hearing of the appeal on the 4th of March 2013, the learned Counsel for the respective parties each adopted the Brief of Argument filed on behalf of his client as his arguments in support or against the appeal as the case may be. While the Appellant’s learned Counsel, O. B. James who settled the Appellant’s Brief of Argument urged that the appeal be allowed in its entirety and the Judgment of the trial court set aside and in its place Judgment be entered for the appellant as per his Writ of Summons and Statement of Claim referred to earlier in this Judgment; the 1st and 2nd Respondents each, urged for the affirmation of the Judgment of the trial court and the consequential dismissal of this appeal.

 

The Appellant in his Brief of Argument distilled 3 issues for the determination of this appeal to wit:

1. i) Having found as a fact that the Appellant’s evidence relating to his root of title was not challenged, was the learned trial Judge’s right in holding that he did not discharge the burden placed on him by S. 135 and 137 of the Evidence Act and he was therefore not entitled to Judgment (Ground One).
2. ii) Whether the learned trial Judge properly evaluated the evidence before him (Grounds Two, Seven and Eight).

iii)      Having found as a fact that there was no evidence before him showing compliance with the provisions of Section 28 and 29 of the Lands Use Act, was the learned trial Judge’s right in holding that by making the area into a layout, the 2nd Respondent had validly acquired the land in dispute. Grounds three, four, five and six).

 

The 1st Respondent on his part also formulated 3 issues for determination, and as follows: –

1. i) Whether the trial Judge’s finding that the Plaintiffs Statement of Claim and evidence as to what was intended to establish the fact of purchase was challenged (SIC) (not challenged) nor controverted amounted to an acceptance by the Judge that one of the five (5) ways of proving root of tile in land cases was established by the Plaintiff.
2. ii) Whether the learned trial Judge can be said not to have properly evaluated the evidence placed before him in arriving at his decision in this case, in the manner he did and whether his decision is not justified or cannot be sustained having regard to the facts before him.

iii)      Whether by the provisions of Sections 28 and 29 of the Land Use Act revocation of Right of Occupancy (R of O) and payment of compensation are necessary preconditions for valid acquisition of land by Government for public purposes and if non compliance if any by the 1st Respondent necessarily invalidates the acquisition and thus fatal to the case of the 1st Respondent against the Appellant herein.

 

On his part, the 2nd Respondent formulated 2 issues to wit;

1)      Whether the learned trial Judge properly evaluated the evidence before him having regard to the facts of the case.

2)      Whether the entire suit is competent having regard to the law of limitation in respect of time limit for action(s) to recover land.

 

Before, I delve into the consideration of the issues, I need to point out that a perusal of the issues formulated by the respective parties clearly shown an essential similarity and purport as the issues formulated by the Appellant are indeed in my view the same as those formulated by the Respondents, except that issue No. 2 of the 2nd Respondent is on a class of its own and relates to a statue of limitation challenge bordering on the statute of limitation.

 

That cannot be an issue properly raised as it is in the nature of a preliminary objection which must be raised by way of a Notice of Objection first been filed and served on the other party at least 3 days before the hearing thereof.
The law in this respect further postulates that the said Notice of Objection raised in the Brief must be isolated and argued first before the adoption or argument of the appeal.

 

Indeed, since issue No. 2 of the 2nd Respondent was not appropriately raised as a point of preliminary objection and argued as such suffered the additional fate of being a fresh issue which had not been raised at the trial court, nor raised before this appellate forum with leave.

 

That issue No. 2 is therefore discountenanced.

 

I shall therefore proceed to determine this appeal on the basis of the Appellant’s Brief of Argument alone, as after all it is his appeal. I shall however state the Brief fact of the case.

 

The facts of the case at the trial are as follows: –

1. On the 10/11/74, the Appellant purportedly purchased the land in dispute from one Sabo Manda for the sum of Six Thousand Naira (N6,000.00).

 

The said Sabo Manda testified as PW1 and confirmed the sale to the Appellant. After the purchase the area was subsequently made into a layout by the 2nd Defendant/Respondent. Based on his purported title, the Appellant was issued an allocation paper – which is dated 5th August, 1979 by the 2nd Respondent over the land.

 

The allocation paper is Exhibit 2’a’ while the site plan is Exhibit 2’b’. Subsequently, the 2nd Respondent allocated the same piece of land to one J. M. Anzaku on 28/7/1981 which was followed by a Certificate of Occupancy. Upon the discovery, therefore, the Appellant complained to the 2nd respondent and then proceeded to institute the suit at the trial court when no positive response was forthcoming. The present 1st Respondent was substituted for the original 1st Defendant Mr. J. M. Anzaku following the death of the said J. M. Anzaku. The Respondents denied those facts. Exhibits were tendered by both sides. Witnesses were called.

 

Now to the consideration of the argument as raised in the issues formulated.
Submitting on issue No. 1, the Appellant’s counsel, O. B. James, Esq. submitted that the learned trial Judge was wrong in holding that the Appellant had not discharged the burden placed on him by Sections 135 and 137 of the Evidence Act in spite of the finding that the Appellant’s evidence relating to his root of title remained unchallenged.

 

Reiterating that there are five recognised ways of proving title to land or ownership of any land in dispute, namely;

(1)     Traditional evidence.

(2)     Production of document of title.

(3)     Acts of ownership and possession by a persons, e.g. selling, leasing, renting, farming, etc. extending over a sufficient length of time and numerous and positive enough to warrant the enforcement that the person is the true owner.

(4)     Acts of long possession and enjoyment under S. 145 of the Evidence Act raising prima facie evidence of ownership.

(5)     The probability raised under Section 45 of the Evidence Act.

 

Learned counsel submitted on the authority of the case of BALOGUN vs. AKANJU (1988) 1 NWLR (PT. 70) 301 at 323 that proof of the five ways mentioned above are distinct and separate; and that proof of any of the ways was sufficient to establish a claim of title for a declaration in favor of an aggrieved claimant.

 

Referring to paragraph 3(a) and (b) of his Statement of Claim, the root of title relied on by the Appellant is pleaded thus:-

3. The Plaintiff aver as follows: –

“A.     On the 10/17/74, he purchased the land in dispute from one Sabo Manda for the sum of Six Thousand Naira (N6,000.00) only. The said Sabo Manda is the customary owner of the said land. At the hearing of this case, the Plaintiff shall rely on the sale agreement as evidence by payment of purchase price.

1. The 2nd Defendant subsequently made the area where the land situated into a layout and based on the Plaintiffs existing purchase as stated above he was issued an allocation paper dated 5th August, 1979 as well as the site plan of the said land. The Plaintiff shall also rely on the file kept by the Akwanga Local Government relating to the said land.”

 

The Plaintiff’s counsel drawing from the afore-quoted pleadings, submitted that the Appellant had pleaded and relied on the 2nd way of proving ownership; refers to ADEWUYI v. ODUKWE (2003) 131 LRCN pg. 2510 21, 25, 27 paragraphs. F-EE and pg. 2528. pars. A-F. It was submitted that PW1 being the Plaintiff’s vendor, Sabo Manda had confirmed the sale and identified the sale agreement which was admitted as Exhibit ‘1’. It was therefore contended that, having found and held the Appellant’s pleadings had been supported by the evidence of PW1 and Exhibit ‘1’, and remained unchallenged the trial judge ought to have entered Judgment for the Plaintiff (Appellant). It was further contended that this was more so that where there was unchallenged evidence and by a person who had the opportunity of challenging same, a court has the duty to act on the unchallenged evidence before it. See LEADWAY ASSURANCE COMPANY LIMITED v. ZECO NIGERIA LIMITED (2004) 18 NSCQR (pt. 1) 394 at 405 par. E – F. It was further submitted that it is the settled position of the law that the onus of proof is not fixed on a Plaintiff in Civil Cases as it is in criminal cases. In this wise, it was submitted the 1st Defendant/Respondent did not adduce any evidence to show that the land did not belong to the Appellant’s vendor. That, it followed, therefore, that the Appellant’s vendor’s title was not in dispute. That the learned trial Judge ought to have granted the Plaintiff’s claim. See the case of OGBU v. WOKOMA (2005) 24 NSCQR pg. 1 at 21 par. B-C.
The 1st Respondent, in arguing his issue No. 1 which is the direct opposite of the Appellant’s issue No. 1in phraseology but also related to whether the Appellant had proved his title in accordance with any of the 5 notorious ways of proof of title, submitted that the Judge did not state that the Plaintiff/Appellant’s case had been so proved. Referring to page 93 of the record, learned counsel submitted that the trial Judge stated that the evidence on purported purchase of the land and the issuance of a purchase receipt to the Appellant by PW1 (Sabo Manda) was not in dispute or in doubt but that, that fact did not constitute the proof of title for the Appellant, as the vendor’s root of title had not been proved. Referring to paragraph 3(a) of the Statement of Claim and the evidence of Sabo Manda (PW1) in paragraph 5 at page 22 of the record it was submitted that the Plaintiff tied his claim to the customary title of his vendor; that the Plaintiff only pleaded reliance on the sale agreement as evidence of his having paid the purchase price but not a means by which he intended to prove his root of title. That the Appellant was only making that claim now; that it was incumbent on the Plaintiff/Appellant to prove how his vendor ((PW1) became the customary owner of the land as pleaded. That this was particularly so that the

 

Defendants/Respondents were challenging the Appellant’s right to the property.

 

The following cases were referred to: –

CHIEF N. T. OKORO v. MARK DAKOLO (2006) ALL FWLR (PT. 336) 201 AT 219 par. E-F: ALHAJI BUKAR MULIMA v. HAJIYA GAMBO GENIRAM & 3 ORS. (2002) ALL FWLR (pt. 228) 751 at 784 – 785 particularly page 785 paragraphs A-B where the court held thus: –

“It is the law that a party who relies for his title on grant or title according to the custom of any person, family or community must plead and prove the origin of the title of the person, family or community relied upon unless the title is admitted by the opposite party.”

Learned 1st Respondent counsel submitted that the extract in the aforequoted case as reproduced is on all fours with the case now on appeal and should be applied. That the learned Judge had held rightly that the plaintiff’s vendor had to show and so the Plaintiff too had to show how PW1 (Vendor) derived his alleged customary title to the land which he sought to sell to the Appellant.

 

That the failure to so prove the root of title of PW1 was fatal to the Appellant’s case. OBA YEKENI ELEGUSHI & 4 ORS. V. SARATU OSENI & 4 ORS. (2005) 7 SCNJ 416 at 430, learned counsel contended that the Appellant was making a belated diversion contrary to his pleading in paragraph 3 and the evidence of PW1; that even the prayers for the reliefs sought in paragraph 7(9) of the Statement of Claim reveals that the Plaintiff was not relying on a purchase receipt to establish his claimed title, but was relying on the fact of being the first to be allocated the parcel of land. That the plaintiff/Appellant at page 28 of the record of appeal further adopted the reliefs contained in his Statement of Claim. That the courts are not to impute any contrary intention to the Appellants or to reconstruct or make a case for a party in order to strengthen his case.
It is also submitted that a party is bound by his pleadings and no claim can be make outside it. EJIKE I. UGOJI v. EZE (Dr) A.I. ONOKOGU (2005) 5 SCNJ 267 at 275. OKOZO v. DAKOLO (supra) at 237 par. D-E and page 232 par, D-F referred.

 

That the Appellant had opted by his pleadings and evidence to rely on traditional evidence which was wanting; and that the trial Judge was therefore right in finding as he did against him. That a plaintiff must only succeed on the strength of his case and not on the weakness of his opponent’s case; proceeding further, it was submitted that the quality of an uncontested evidence must in any case be such as to entitle a plaintiff to Judgment, as it is not every unchallenged evidence that must be admitted in evidence as after all, all such evidence just as others must first be evaluated to assure the Judge that it could sustain the plaintiffs case. MARTCHEN INDUSTRIES NIG. LTD. v. M. F. KEN-WEST AFRCAN LTD. (2005) 5 SCNJ 235 AT 243-244.

 

Counsel then capped this arm of his submission by submitting further that even if Exhibit ‘1’ i.e. the evidence of purchase was relied upon to prove his case, no valid transfer of title had been conveyed thereby as the said Exhibit ‘1’ was in Hausa language and not translated into English language the official language of the Courts.

 

That a Court of law cannot take the place of an interpreter or a witness. See, ACHIMI ALI v. OMALE AUDU (2005) ALL FWLR (pt. 269) 1909 at 1921 A- E.
That the learned trial Judge was right in not placing much weight to Exhibit ‘1’ as it was not translated into the language of the Court. See, MOSES O. ODUWOLE ANANA V. SUNDAY SONIBARE AINA & ANOR. (2001) 17 NWLR (pt. 741) 1 at Page 22.

 

That whereas in the case leading to this appeal, the Court never adverted its mind to the deficiency and inadmissibility of the Exhibit ‘1’ and proceeded to admit same and acted on same the appellate Court as this Court has the duty to exclude such evidence and decide the appeal on legally admissible evidence only. See, ALHAJI SABIKUYU SHITTU & 3 ORS. V. OTUMBA OYEWOLE FASHAWE (2005) 7 SCNJ 337 at 352 pars. 5 – 10.

 

It does not matter whether the opposing counsel did not oppose to the admissibility of such inadmissible evidence (document).

See, THE DAGACI OF DERE & 9 ORS. vs. THE DAGACI OF EBWA & 9 ORS. (2006) ALL FWLR (pt. 306) 785 at 822 Pars. E – F.

 

That Exhibit “1” should be expunged together with the evidence led in that regard too, as that would confirm that there was no sale as there was no document to that effect; that having failed to prove his claim even by this method of proof of title the Plaintiff’s claim was rightly dismissed; that the appeal be dismissed on this score too.

 

Arguing his issue No. 1 which is on whether the trial Judge properly evaluated the evidence before him, the 2nd Respondent’s Counsel submitted that a Plaintiff must only succeed on the strength of his case and not otherwise. OGUDIMPE vs. A.G. KWARA STATE (1993) 8 NWLR (pt. 313) 598 at 563 RATIO 13, KODILINYE v. ODU 2 WACA 335. That the plaintiff never proved any fact of possession contrary to the Defendant/1st Respondent who proved possession by fencing of the land and its cultivation. That the evaluation of evidence led was properly done by the trial Judge. SHOSHAI GAMBO vs. ZINDUL TUSDAM (1993) 6 (1993) 6 NWLR (pt. 302) 643 at 647 RATIOS 8 and 9 were referred to.

 

This Court was urged to dismiss the appeal. The 2nd Respondent also urged for a dismissal of the appeal. That there was no proof by the Appellant and evaluation was properly done of the evidence led.

 

The 2nd Respondent had submitted that a Plaintiff wins on the strength of his case and not only the weakness of the defence, submits that in the instant case, the case of the Respondent is not weak. Referred to OGUNDIPE V. A.G. KWARA STATE (1993) 8 NWLR (PT. 313) 558 at 563 RATIO 13 AND KOLILINYE v. ODU 2 WACA 336.

 

That the plaintiff never proved that he was in possession as against the 1st Respondent who had shown that he was in possession by continuous farming on the land and fencing thereof; that the evaluation of the evidence was therefore proper. The 2nd Respondent also raised the issue of competence of the suit at the trial Court. Contending that the evidence led by the Plaintiff himself shows that the action was filed in 2003 over 10 years after the alleged purchase and interference by the 1st Respondent. That the issue had been raised at page 82 of the record and that the suit was incompetent and ought not have been entertained. That the issue of the limitation borders on jurisdiction and may be raised anytime including on appeal. See, A.G ANAMBRA STATE v. A.G FEDERATION (1993) 6 NWLR (pt. 302) 692 at 699 – 704.

 

That by S. 3 of the Limitation Law (Edict) No. 16 of Benue Plateau State applicable to Nasarawa State, the action ought have been brought within 10 years of the acts complained of. That the action ought have been instituted within 10 years of the layout exercise done in 1979 by the 2nd Respondent or the allocation to the 1st Respondent in 1981.

 

That the filing of the suit in 2003 divested the Court of jurisdiction to hear the same; ODUBEKO vs. FOWLER (1993) 7 NWLR (pt. 308) 637 at 644 – 645 and MADAM MEMINOTU IBRAHIM v. LASISI OSUNDE & 2 ORS. (2003) 2 NWLR (pt. 804) 241 at 249 were referred to.

 

This issue No. 2 of the 2nd Respondent smacks of a point of objection to the jurisdiction of the trial Court. True a challenge to jurisdiction may be raised at any time including on appeal and without leave, but where it is based on a special defence to be raised the law is that such a defence such as laches, acquiescence and/ or statute of limitation must be specially pleaded and raised at the trial.

 

From the record and clearly from the statement of the 2nd Defendant/Respondent there was no such plea raised. See, page 13 on statement of defence. The trial Judge therefore rightly discountenance it upon the submission of O.B James Esq. for the Appellant that it offended order 25 Rule 6 (1) (3) of the applicable High Court civil Procedure Rules and EZE v. ATASIE (2000) 2 SCNQR PT, 2 PAGE 1145 B – C (S.C).

 

The bindingness of pleadings exchanged on the Court and the parties and the unusefulness of evidence led outside unpleaded facts. See, page 90 of the record. This argument on limitation law/jurisdiction incarnated afresh before this Court, must suffer the same fate as it did as the trial Court was right in so holding against that objection or challenge.

 

What is more, there is no cross-appeal against that aspect of the judgment or a Respondent’s notice filed by the 2nd Respondent. That issue fails as it is resolved against the 2nd Respondent for being incompetently raised. It is discountenanced.

 

I have calmly perused the submissions of the respective Counsel as summarized above and note that the gravamen thereof as relating to the issue No. 1 of the Appellant which in essence traverses the arguments of the Respondents is whether the Plaintiff now Appellant had proved his case at the trial Court to warrant judgment for him. The Appellant contends that he had so proved his claim. The Respondents contends otherwise.

 

From the record of appeal and the briefs filed and adopted, it is apparent that there is no problem about findings of facts by the trial Court as the 1st Respondent and 2nd Respondent each deny the material facts of the plaintiff/Appellant being the allottee or owner of the land which he of aimed the reliefs at the trial Court. See pages 11 – 12 and pages 13 – 14 of the record of appeal. The trial Court so found in favour of the denials as made.
The law is that a finding and conclusion upon evaluation by a Court shall be respected by an appellate Court unless there is a basis to interfere or disturb the findings as made See, CPC & ANOR vs. INEC & 4 ORS (2012) 2 – 3 SC 1.
From the submission of learned Counsel for the Appellant on his issue No. 1 there is no scintillation of reference to any findings of facts by the lower Court which it considered perverse or unsupported by evidence led.

 

In this wise therefore this appeal is based solely on law i.e. whether the trial Judge rightly held or wrongly held that the Plaintiff had not proved his case.
In civil cases, the parties assert their claims and defences or respective claims/counter claims through pleadings. In so doing, the law is that parties are bound by their pleadings. A trial Court has a duty to reject any evidence which is contrary to their pleadings. It is also the duty of the parties to confine their evidence to those issues raised in the pleadings. Pleadings are meant to tie the hands of the party so that he cannot go into matters not formally included therein without leave of the Court. EGOLUM vs. OBASANJO (1999) 5 SC (pt. 1) 1; YAR’ADUA vs. BARDA (1992) 2 NWLR (pt. 231) 638. IWUOHA vs. NIPOST LTD. (2003) 4 SC (pt. II) 37.

 

The Appellant, as Plaintiff had pleaded at paragraph A of the statement of claim (page 3 Records) thus:

 

The Plaintiff avers as follows:

“On the 10/11/74 he purchased the land in dispute from one Sabo Manda for the sum of Six thousand naira (N6, 000.00) only. The said Sabo Manda is the customary owner of the said land. At the hearing of this case, the Plaintiff shall rely on the sole agreement as evidence of payment of purchase Price.
B. The 2nd Defendant subsequently made the area where the land is situated into a layout and based on the Plaintiffs existing purchase as stated above he was issued an allocation paper over the said land. At the hearing of this case, the Plaintiff shall rely on the copy of the allocation paper dated 5th August 1979 as well as the site plan of the land. The Plaintiff shall also rely on the file kept by the Akwanga Local Government relating to the said land. By a fact of a purported allotment of the same land to the Defendant/Respondent, the Plaintiff/1st Appellant pleads the steps he took and the responses of the 2nd Respondent herein in warning him to steer clear of the land and the consequent refusal to accede to his pleas.

 

That by this fact, Appellant claims materially for –

(a)     A declaration that he is the lawful owner or allottee of the parcel of land lying and situate at behind express hotel Wamba Road, Akwnaga measuring about 0.0010 hects, and that he is entitled to the grant of a statutory Right of Occupancy over the land.”

(b)     He claims other reliefs, to with “A declaration that the purported allocation of the land aforesaid by the 2nd Defendant to the 1st Defendant is irregular, null and void and that the certificate of occupancy also issued to him is also null and void.

(c)     A perpetual injunction restraining the Defendants from trespassing on the land aforesaid.

(d)     The sum of One million Naira (N1, 000,000.00) only being damages for trespass. Dated this 25th day of September, 2003.”

 

In an attempt to prove his case for the claim of title having its anchor on the fact of a purchase of the land in dispute, and in an attempt to comply with the requirement of the law that a Plaintiffs case only succeeds or fails based on the proof or otherwise of his case as per his pleaded averments, the Appellant as Plaintiff at the trial testified to the fact of purchase of the land and tendered Exhibit I in proof; the learned Counsel for the Appellant contends that Exhibit I constituted the root title relied upon by the Plaintiff/Appellant as it was one of the 5 ways of proof of title to land. The 1st Respondent contends that is was not so pleaded as the root of title; to the contrary it was argued that the pleaded root of title relied upon was the purported first allocation made by the 2nd Respondent to the Appellant/Plaintiff well before the allocation and issuance of a certificate of occupancy to the 1st Respondent. I have perused the entirely of the pleadings of the Appellant as Plaintiff and do not see where he relies on or basis his root of title on a custom or tradition or inheritance or devolution through a custom of a person or community. From the totality of the pleading and evidence led, plaintiff/Appellant never relied on evidence of custom or tradition to warrant the proof of how his vendor became the owner of the land claimed. It is clear to me that the Plaintiff based his claim on documents of title or simple purchase agreement as his root of title.

 

The argument of the 1st Respondent’s Counsel to the contrary has no basis. I discountenance same and all cases cited in aid. However the said Exhibit I simply provides thus:

“YARJEJENIYA”

“Ni Sabo Manda na Angwan Katsen Akwanga Local Govt. na yarda da chewa no sayar wa Alhaji Rabiu Nunku na Akwanga da pegi no wanda yake Boyan Express Hotel Akwanga a kan kudi (N6,000.00) Naira dubu shida ya biya kudin ran 10/11/1974 an yi wannan yarjejeniyan ni a gaban Haliru Yakubu da Usman Bitrus Mai Angwan Katsen

(Signed)
Sabo Manda Mai Sayarwa

10/11/74
Usman Bitrus

Mai Angwan

Shedan Mai Sayarwa”

(Signed)
Alhaji Rabiu Nunku Maisaya

10/11/74
Haliru Yakubu

Shaidan Mai Saya

 

The appellant’s Counsel contended that the trial Court having found that purchase of the land as evidenced by Exhibit I was uncontroverted, was wrong in however, concluding that the Plaintiff had not proved his claim and therefore dismissed the claim in its entirety. The said Exhibit I reproduced aforesaid and constituting the basis for the claim of ownership (as the purported allocation of the plot to him) was pleaded and testified to as a fortress and amplifier to the Exhibit 2(a). See the pleadings at paragraph “B” thereof and the specific phrase thus: –

“Based on the Plaintiff’s existing purchase as stated above, he was issued an allocation paper over the land. The Plaintiff shall rely on the copy of the allocation paper dated 5th August, 1979 as well as the site plan of the said land. The Plaintiff shall also rely on the file kept by the Akwanga Local Government relating to the said land.”

 

Exhibit I was testified to by PW1 Sabo Manda who identified it as the agreement for the sale of a part of the farmland to the Appellant. That the land is situate close to Express Hotel. In re-examination the plaintiff stated that; –

“The agreement did not contain the measurement of the parcel of the land sold to the Plaintiff.”

 

See page 9 of the record.

The plaintiff as PW2 at page 10 of the record also testified to Exhibit ‘1’ and the document that were given to him. The 1st Respondent’s Counsel had correctly submitted that a party only succeeds on the strength and quality of his case and not on the weakness of his opponent’s case. I agree with the 1st Respondent’s Counsel when he submitted that it is not every unchallenged evidence that shall ground a judgment in favor of a claimant. The court is entitled to rely and use such evidence, subject however to the caveat that it evaluates the evidence and considers its admissibility and credibility. That the trial Judge proceeded further to evaluate the evidence notwithstanding the non-challenge thereto not wrong in law. Exhibit I reproduced earlier in this judgment is in Hausa language. At pages 8 – 9 of the record, the following appears:-

“Court, the written agreement which is in Hausa language indentified by the witness and sought to be tendered in evidence admitted and marked Exhibit I

Plaintiff/Counsel – May I apply that the document be transferred into English language by the Court Registrar.

1st Defendant- No objection

Court – Application of the learned Plaintiff Counsel for the translation of the Plaintiff Exhibit from Hausa to English language is hereby granted and the Registrar directed to so translate.”

 

In spite of the above directive, the record of this appeal and judgment does not disclose anywhere that the translation was made or a copy thereof tendered. I find none.

 

The learned trial judge therefore was faced with only the Exhibit ‘1’ in its Hausa version which is not the language of the Court; though an admissible piece of evidence and rightly admitted, the Hausa Exhibit ‘1’ suffered the fate of a light or no weight at all. The 1st Respondent’s Counsel was therefore right when he so submitted that the trial Court could not constitute itself into a translator or interpreter to translate Exhibit I to English language. Further, the PW1 and PW2 clearly admitted that the dimension of the land in dispute purportedly purchased was not disclosed in Exhibit ‘1’, I cannot see the English version to confirm the contrary.

 

The Exhibit ‘2’A – the allocation by the Akwanga Local Government (the 2nd Respondent) does not have a description nor size of the land allegedly purchased and said to be reconfirmed by the said Exhibit ‘2’A; the site plan the Exhibit ‘2’B said to accompany the Application for a certificate of occupancy in respect of the purported purchase of land by the Appellant does not also contain any description of the land. No properly authenticated document of title has been tendered. For these myriads of deficiencies, it is obvious that the Plaintiff/Appellant had not established his claim of title to any land to warrant the relief sought by him at the trial Court upon the evidence and documents. This is more so that the 1st Defendant/1st Respondent joined issues with the Appellant by denying paragraph 3(c) of the statement of claim and avers further that the Plaintiff/Appellant does not have the purported land claimed. See paragraphs 2(a) 2(b) 2(c) 4, 5(b) (6) of the statement of Defence of 1st Defendant at pages 11 – 12 of the record. See also the total denial by the 2nd Respondent at pages 11 – 12 of the record.

 

Issue 1st of the Appellant is resolved in favour of the Respondent and against the Appellant to the effect that the trial Judge was right in holding that the plaintiff had not discharged the burden of proof on him by section 135 and 137 of the Evidence Act and was therefore not entitled to judgment.

 

Arguing issue No 2, it was submitted that there was no proper evaluation of evidence at the trial Court and miscarriage of justice had been occasioned; that the law is trite that in an action for declaration of title a Plaintiff wins on the strength of his case and not on weakness of his opponent’s case. That there was a perverse understanding of the Land use Act relating to valid acquisition of land by the 2nd Respondent. That the case of GWAR vs. ADOLE (2003) 3 NWLR pt. 808 page 516 at 549 was misunderstood and distinguished away wrongly by the trial Court. Heavy reliance was placed on Exhibit ‘1’, ‘2’A and ‘2’B and that there was no dispute about the layout and allocation to the Appellant the land in dispute; that there was no revocation of the allotted land and payment of compensation made. Responding on issue No. 2, the 1st Respondent in my view rightly submitted that our adversarial system of adjudication requires that the party who asserts has to prove and as such the burden is squarely placed on him to prove his case against Defendant, otherwise his case must fail. The case of OJORIE ECHI & 4 ORS. v. JOSEPH NNAMANI & 5 ORS. (2000) 5 SCNJ 155 Pars. 35 – 40 at 154; JUSTINA PAUL vs. EMMANUEL OZOKPO (1995) 4 SCNJ 119 at 136 Par. 20 were referred to. In PAUL JUSTINA vs. EMMANUEL OZOKPO (supra) it was held that by the Supreme Court thus: –

“In a claim of declaration of title to land, the onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. He must rely on the strength of his case and not on the weakness of the Defendant’s case. The onus is not discharged, the weakness of the Defendant’s case will not help him and the proper Judgment is for the Defendant”.

 

BUHARI & 1 OR. v. CHIEF OLUSEGUN A. OBASANJO & 254 ORS. (2005) 7 SCNJ 1 at 47. That the learned trial Judge evaluated the evidence tendered or led particularly by the Plaintiff before finding that he had not made out a case for the relief sought is obvious in the Judgment, it is supported by the evidence led and the submissions at the trial and before this court. The trial court had undoubtedly appraised the evidence led and justifiably and correctly come to the conclusion that Plaintiff/Appellant had not proved his claim to the relief sought. I agree with the 1st Respondent’s counsel when he submitted that this court has no business to substitute its views with that of the trial court. In any case, even if it could, there is no basis in this case. See MUSA SHA (JNR) & 1 OR. vs. DA RAP KWAN & 3 ORS. (2000) 5 SCNJ 101 at 119.

 

In CPC & ANOR. v. INEC & 4 ORS. (supra) at page 35, the Supreme Court stated authoritatively per ADEKEYE, JSC thus:

“An appellate Court will not interfere with the findings of facts of a trial court where such findings ore supported by the pleadings and evidence adduced before the court. It will only interfere in exceptional circumstances where such findings are perverse not supported by evidence or had occasioned a miscarriage of Justice. It is not the business of the appellate court to substitute its views of the evidence for that of the lower court. Miscarriage of Justice will definitely result from adopting such a course of action when it is unwarranted. The need to ensure that Justice is done must always dominate the attitude and reasoning of the appellate courts when dealing with appeals arising from questions of fact. MAJA v. STRACO (1968) 1 ALL NLR 141; EBBA v. OGODO (1981) 4 SC (Reprint) 71 MOGAJI v. ODOFIN (1978) 4 SC 97; (1978) 4 SC (Reprint) 65; AKINLOYE v. EYIYOLA 1968 (NMLR) 92; WOLUCHEM v. GUDI (1981) 5 SC 291.”

 

The trial court properly evaluated the evidence led as, by Exhibits 2, 2(a) and 2(b) it could not be fathomed, as contended by the 1st Respondent’s learned counsel on page 13 of his Brief of Argument, whether the description of the land purportedly sold to the Appellant/Plaintiff had been made. Was it whole plot behind Express Hotel as per Exhibit 2, 2(a) & 2(b) or part of Farmland and behind or near Express Hotel as per PW1’s evidence? Learned counsel for 1st Respondent also submitted that no ground rent was proved or shown to have been paid since 1974 as claimed, as none was tendered and that is meant that no such receipts or payment was made or neither receipt nor such land existed at all.

 

The above submission appeals to my sense of Justice.

 

I must point out that evaluation of evidence comes in two forms. See the recent decision of the Supreme Court in AYORINDE & ORS. v. SOGUNNO & 6 ORS. (2012) 4-5 SC 160 wherein Rhodes Vivour, JSC delivering the lead Judgment states at lines 15 – …, thus:

“Evaluation of evidence comes in two forms.

(a)     Findings of fact based on the credibility of witnesses, and

(b)     Findings of facts based on evaluation of evidence.

 

In (a) an Appeal Court should be slow to differ from the trial court. After all it was he that saw and heard the witnesses, he watched their demeanour and so his conclusions must be accorded respect. But in (b) an Appeal Court is in as good a position as the trial court to evaluate the evidence. In both (a) and (b) the conclusion of the trial Judge should be accorded much weight except found to be perverse.

 

Trial courts receive evidence. That is perception. It is then the duty of the court to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation”.

 

From the printed record of appeal pages 30-31, PW1, Roma Doji testifying as Assistant Director of Works/Land Officer in the 2nd Respondent’s office, through whom the official file Exhibit ‘5’ containing all the transactions relating to this case was tendered stated categorically that –

“I am not aware that the Akwanga Local Government Council allocated the land in dispute to the Plaintiff/PW2 in 1979 …”

 

PW3 continued thus: –

“The document No. 15 in Exhibit 5 is signed by land officer. There was an in concluded (Sic) constituted decision taken by way of minutes in Exhibit 5, after the content of document No. 15. In the land department.
We act on concluded decision.”

 

I note that page 15 or document No. 15 is then Exhibit ‘Y’. Being the advise and warning to the Appellant to stay clear of the disputed land and the assertion by the Lands Officer who signed for the Chairman of the 2nd Respondent’s Council that the Plaintiffs 1st Respondent has been paying ground rent update as against the Appellant who was said not to have produced any document from the Local Government to buttress his claim to the Plot.

 

That is the evidence of the Appellant’s PW3; a major witness in purported proof of the allocation made to him or the confirmation of his alleged title by purchase. To the contrary, the evidence of the Respondents particularly that of DW1 at the trial court relates to allocation form, site plan, certificate of occupancy, Receipts on ground rents plaid to the 2nd Respondent and confirmed by the 2nd Respondent. The documents were admitted as Exhibits 1 – 9.

 

The letter Exhibit ‘Y’ copied to the 1st Respondent by the 2nd Respondent warning the Appellant and denying his claim to the alleged land and asserting the Defendant/1st Respondent’s title to the land is extant.

 

In cross-examination, DW1 at page 35-35 of the record stated thus:-

“The late J. M. Anzaku (for whom DW1 was substituted) had been farming the land since allocation and was forming maize and guinea corn. There was no period when the land was left fallow.”

 

DW1 – Alhaji Ibrahim A. Miluku, a Staff of the 2nd Defendant testified at pages 23-24 of the record that he was a Land Officer and identified Exhibit 2 as an allocation to the Defendant/1st Respondent DW3, testified to being the Caretaker of the land as he was put to possession by the 1st Respondent and was therefore farming thereon. He was the Chief Technical Officer (Lands). There is evidence at the locus in quo that the Defendant/1st Respondent had fenced the land and fixed iron Gate thereon. See page 48-49 of the record.

 

From the totality of the evidence of occupation above, learned counsel had submitted for the 1st Respondent that the plaintiffs claim was contradictory and imprecise as by paragraph 3 (a) of his statement of Claim he relied on Exhibit 1 as his root of title, while by paragraph 3(b) he appeared to rely on an allocation to him. Besides the allocation paper and the plan Exhibits 2(a) and (b), there is nothing on the record to show that Plaintiff has title over the land.
The Exhibits X1-9 receipts and fencing are evidence of occupation of the land. This is as against the Plaintiff/Appellant who was admittedly neither in actual nor constructive possession.

 

The land in dispute was testified to as bearing Certificate No. 0141/8 Ex 34 Zone “B”, same as in Exhibit 5 all in the name of the 1st Respondent’s deceased brother, J. M. Anzaku, while the plot allocated to the Appellant bears C of O. No. 241.

 

The 1st Respondent counsel had rightly argued that this raises a presumption in favour of the 1st Respondent to the effect that he is the owner in exclusive possession.

See ALHAJI SANI MANI & 2 ORS. v. ALHAJI SHEHU M. SHANONO (2009) ALL FWLR (pt. 345, pg. 303 at 324 pars. C-D.

 

With the evidence of Acts of possession and ownership by the 1st Respondent, how can it even be that in evaluating the contending claims as testified to at the trial, a trial court will not, in evaluating the evidence properly find the scale tilting heavily in favour of the 1st Respondent herein? It could not have been otherwise. An appellate court cannot disturb such a conclusion as it would be one based on a correct perfect and proper evaluation of evidence. Where findings of facts made by a trial court which had the advantage of hearing and seeing witnesses testify, so long as those findings are reasonably supported by evidence and such findings are not per verse and sufficiently justified by evidence and the pleadings, it is not the duty of an Appellate court to interfere.
See ALHAJI SANI MANI & 2 ORS. v. ALHAJI SHEHU M. SHANONO (2007) ALL FWLR (pt. 345) 303 at 324 par. E. (Supra).

 

I shall restate that the proof in civil cases is on the preponderance of evidence. That means one side’s position outweighs the other. In Civil Matters, the onus of proof shifts from the Plaintiff to the Defendant and vice versa. The onus always rests on the party who would fail if no evidence is adduces on either side.
The evidence led by the Respondents is of a higher quality than the weaker evidence of the Appellant. Weighty document of title and possession availed the Defendant/1st Respondent.

 

The trial Judge was for that reason right in refusing to grant the reliefs sought by the Appellant, then as Plaintiff.

 

As Rhodes-Vivour, JSC stated in AYORINDE & 3 ORS. vs. SOGUNRO & 6 ORS. Supra (2012) 4-5 SC. the “evaluation of evidence by the learned trial judge was flawless.” That the evaluation of these evidences led was such that cannot be faulted when it arrived at the decision appealed from.

 

I agree entirely with the submission of the 1st Respondent’s counsel on issue No. 2 and resolve the Appellant’s issue No. 2 against the Appellant and in favour of the Respondents.

 

Grounds 2, 7 and 8 of the Grounds of Appeal therefore fail.

 

On issue No. 3, the Appellant submitted that the trial Judge was wrong in holding that by making the area into a layout, the 2nd Respondent had validly acquired the land in dispute, even after finding that there was no evidence showing compliance with the provisions of the Land Use Act (Sections 28 and 29).

 

That it was not the Respondents’ case that the land had been acquired and re-allocated. That, parties were bound by their pleadings; and there being no such pleadings the trial Judge was bound only by the evidence in proof of pleaded facts.

 

The 1st Respondent submitted that the payment of compensation was not a condition precedent or sine quo non to a legal acquisition of land. That the Appellant was, after all, not a proved owner of any land, nor occupier thereof as claimed and so not entitled to any assessment of compensation, which in any case has no basis, let alone payment thereon.

 

There was obviously no basis to countenance the argument relating to acquisition of the alleged land or any payment of compensation thereon. In any case, such reference by the trial Judge in my view was only an obiter as it was not really the reason or ratio decidendi for the decision arrived at.

 

The essential reason was the want of proof of the existence of any purchase of land by the Appellant and the identity of any such land over which he made his claims. His claim to allocation of the disputed land was also debunked effectively by the 2nd Respondent. Therefore, any finding as to the validity of any purported acquisition was a mere obiter and does not affect the merit of the decision arrived at. A court of law must take a holistic view of a case, and not be concerned with such surplusage or unnecessary extension of reasons given by a trial court so long as the Judgment is correct and meets the Justice of the case.
Issue No.3 is resolved against the Appellant on the totality of the pleadings and evidence led. The trial court cannot be faulted; and having so resolved all the issues against the Appellant, I hold that this appeal is devoid of merit and it ought, accordingly, to be dismissed.

 

Cases, particularly appeals are not decided on snippets or bits of isolated evidence. The entirety of the case shall dictate the Justice of the conclusion to be arrived at. See AGORONYI J. ALADI v. UNION BANK OF NIG. PLC. (2005) ALL FWLR (pt. 285) 517 at 537 par. G. referred to by the 1st Respondent’s counsel at page 23 of his Brief of Argument. There is no miscarriage of Justice in the evaluation and conclusion arrived at by the trial court.

 

Miscarriage of Justice occurs when the court fails to do justice. See NNAJIOFOR vs. UKONU (1986) 4 NWLR (pt. 36) 505; AMADI v. NNPC (2000) 6 SC (pt. 1) 68. There was no miscarriage of Justice since it is so obvious that rules of procedure and evidence were strictly followed in admitting the documents and in ascribing values as appropriate to them in accordance with the law, standard of proof attained to the satisfaction of the lower court and this court.

 

The Judgment of the trial court was based on well examined and accepted evidence. This court cannot find otherwise.

 

The finding in favour of the 1st Defendant, now 1st Respondent and dismissal of the Plaintiff/Appellant’s case at the trial court was proper and cannot be faulted.
The Judgment of R. M. Abdullahi, J. in Suit No. NSA/AKW4/2003 on 9/5/2006 is accordingly affirmed.

 

The Appeal against same is dismissed with costs of thirty thousand Naira (N30,000.00) only against the Appellant and in favour of the 1st Respondent only.

 

 

JA’AFARU MIKA’ILU, J.C.A:

I have read before now the lead judgment of my learned brother, Mohammed A. Danjuma, JCA. I am in agreement with the reasons given in it and the conclusion reached thereof.

 

Therefore the finding in favour of the 1st defendant/1st respondent and dismissal of the plaintiff’s/Appellant’s case at the trial Court was proper and cannot be faulted. Therefore suit No. NSA/AKW4/2003 of 9th May, 2006 is accordingly affirmed the appeal against same is dismissed with the costs as in the lead judgment against the appellant and in favour of the 1st respondent.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A:

I was privileged to read in draft the judgment just delivered by my learned brother, Mohammed A. Danjuma JCA. His lordship has considered and satisfactorily resolved the issues for determination in this appeal.

I agree with his reasoning and conclusion that the appeal lacks merit.
I also dismiss the appeal and affirm the judgment of the lower court delivered on 9-5-2006.

 

I equally abide by the consequential orders made in the lead judgment including that on costs.