3PLR – ALHAJI MODU KIDAGUMA V. MALLAM GANA ABOJA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI MODU KIDAGUMA

V.

MALLAM GANA ABOJA

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 25TH DAY OF MAY, 2012

CA/J/279/2000

3PLR/2012/9 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

CLARA BATA OGUNBIYI, JCA

JUMMAI HANNATU SANKEY, JCA

PHILOMENA MBUA EKPE, JCA

BETWEEN

ALHAJI MODU KIDAGUMA – Appellants

AND

MALLAM GANA ABOJA – Respondents

REPRESENTATION

1. N. Mustapha Esq.- For Appellant

AND

Usman Tatama Esq. – For Respondent

 

ORIGINATING STATE

Borno State: High Court

CONNECTED AREAS OF PRACTICE

1. Real Estate Law

MAIN ISSUES

 

APPEAL– effect of ground of appeal from which no issue for determination is formulated

 

LAND LAW– who has the burden prove the identity of the land in a claim of title to land- whether the doctrine of laches and acquiescence and standing by are known to Yoruba Native law and custom- ways of proving title to land – whether establishment of one out of the five ways is sufficient to grant ownership- need to trace the title of the overlord- role of plan layout

PRACTICE AND PROCEDURE– INTERPRETATION OF STATUTES- Order 39 Rule 5 of the High Court Civil Procedure Rules 1988

 

—————————–

1. EVIDENCE – BURDEN OF PROOF: On whom lies the burden of proving identity to land

“In a claim of title to land, the burden is on the Plaintiff to prove the identity of the land claimed by him if the parties are not ad idem on the identity of the land. See Alhaji Tijani Salami V. Chief Surakatu Gbodoolu & others (1997) 4 SCNJ 196; Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 192.” Per SANKEY, J.C.A. (P.28, Paras.D-E)

 

2. LAND LAW – DOCTRINE OF LACHES AND ACQUIESCENCE: Whether the doctrine of laches and acquiescence is applicable to Yoruba Native law and custom

“The trial judge further stated that the defendant/Appellant “cannot be allowed to ignore the proof of his overlord’s title and rely on long possession. What must have played on the mind of the trial judge was the decision in the case of Olugbode V. Sangodeyi (1996) 4 NWLR (Pt 444) 500 SC where the Supreme Court clearly stated that the doctrine of laches and acquiescence and standing by are very alien to Yoruba Native law and custom because possession, however long, cannot be converted to title. I also agree with the learned trial judge on this issue and further hold that the claim by plea of laches, acquiescence and standing by is like beating about the bush in the face of the obvious claim by the Plaintiff/Respondent in the Lower Court.” Per EKPE, J.C.A. (P.26, Paras.C-G)

 

3. APPEAL – GROUND OF APPEAL: Effect on a ground of appeal where no issue for determination is formulated from

“The law is that where no issue for determination is formulated from a particular ground of appeal, that ground of appeal is deemed abandoned and would be struck out as it is in this case. See ANPP V. INEC (2004) 7 NWLR (PT. 871) 16. BHOJSONS PLC V. DANIEL – KALIO (2006) 5 NWLR (PT.973) 330 SC.” Per EKPE, J.C.A. (P.15, Paras.A-C)

 

4. LEGAL MAXIM – NEMO DAT QUOD NON HABET: Principle of Nemo dat quod non habet

“Besides since, from the findings of the learned trial Judge, the Appellant was unable to establish his root of title, any sale of land to him where the vendor has no title to pass is not effective – Nemo dat quod non habet. See Haladu Dadi V. Idi Garba (1995) 9 SCNJ 232.” Per SANKEY, J.C.A. (P.33, Paras.C-D)

 

5. INTERPRETATION OF STATUTE – ORDER 39 RULE 5 OF THE HIGH COURT CIVIL PROCEDURE RULES: Interpretation of Order 39 Rule 5 of the High Court Civil Procedure Rules 1988

“Order 39 Rule 5 reads as follows:- “Unless at or before the trial, the Court or a judge in chambers for special reasons otherwise orders or directs, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 (ten) days before the recommencement of the trial the parties other than the party procuring it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.” By the provisions of the above recounted Order 39 Rule 5 the plaintiff (Respondent) is required to serve the other party (defendant/Appellant) in this case, with the plan intended to be used in evidence at least 10 days before the commencement of the trial. However, the same rule gives discretion to the Court to allow the use of the said plan even where it had not been served on the defendant where special circumstances exist. The trial judge however had considered the fact that the plaintiff had pleaded the lay out plan in his further amended statement of claim, thus the defendant could not have been taken by surprise at the trial since he was however aware that the said plan would be tendered in evidence. The trial judge in his considered ruling thus stated: “The fact that the defendant did not have the opportunity to inspect the lay out plan 10 days before trial cannot in my humble view be a ground to reject the document having regard to the circumstances.” She considered the fact that each case ought to be treated according to its given set of facts and circumstances and then went ahead to admit the register and lay out site plan of Gwange Area as exhibits B and C respectively. I however throw my weight behind the reasoning and conclusions of the trial court on the issue. Order 39 Rule 5 is indeed merely procedural and the law is that once a document is pleaded and is relevant in law, it is admissible. I too agree that the said register sought to be tendered is not among the items required to be served on the defendant under Order 39 rule 5 of the Rules of the High Court.” Per EKPE, J.C.A. (Pp.21-23, Paras.F-B)

 

6. LAND LAW – PROOF OF TITLE TO LAND: Whether a party claiming title to land needs to proof all the recognised ways by which title to land can be proved

“In legal parlance, a party claiming declaration of title to land needs not prove all the five recognized ways of establishing title to land for him to succeed. Each of the five ways is independent of the others to prove title in a land case. It therefore follows that the establishment of one out of the five ways is sufficient to grant ownership. See: Nwosu Vs Udeaja (1990) 1 NWLR (Pt 125) 188. Lawson V. Manuel (2006) 10 NWLR (Pt 989) 569.” Per EKPE, J.C.A. (P.27, Paras.D-F)

 

7. LAND LAW – PROOF OF TITLE TO LAND: One of the ways by which title to land can be proved

“It is also settled law that one of the five different ways of proving title to land is by documents of title See: 1. Idundun V. Okumagba (1976) 9 – 10 SC 227. 2. Atanda V. Ajani (1989) 3 NWLR (Pt 111) 511. 3. Onwugbufor V. Okoye (1996) 1 NWLR (Pt 424) 252 4. Lawson V. Manuel (2006) 10 NWLR (Pt 989) 569.” Per EKPE, J.C.A. (P.27, Paras.A-C)

 

8. LAND LAW – PROOF OF TITLE TO LAND: What is required from a party that traces his root of title from another

“The position of the law is that if one traces his root of title from another, he must go further to trace the history of how that person through whom he derives title from got his title also. See the cases of INKO-TARIAH V. GOODHEAD (1997) 4 NWLR (Pt 500) 453 and EKPECHI V. OWHONDA (1998) 3 NWLR (Pt 543) 618.” Per EKPE, J.C.A. (Pp.26-27, Paras.G-A)

 

9. LAND LAW – SURVEY PLAN: Instance when a survey plan can be disposed of when proving title to land

“That being so, the issue of layout/site plan or no layout/site plan can also be disposed of quickly once it is realised that it is settled law that, where there is no difficulty in identifying the land in dispute, a declaration of title may be made without it being based on any plan. See Bajoden v. Enock Iromwanimu & another (1995) 9 SCNJ 205; Akinhanmi v. Daniel (1997) 6 SC 125; Ibuluya v. Dikibo (1976) 5 SC 97.” Per SANKEY, J.C.A. (Pp.30-31, Paras.F-A)

 

MAIN JUDGMENT

 

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment):

 

This is an appeal against the judgment of the Borno State High Court delivered on the 10th day of December, 1999 whereby the Plaintiff now the Respondent claimed as follows:

 

“Possession of all that Plot numbered B. 649 lying and situated at Gwange New extension measuring 100 feet by 50 feet granted to the Plaintiff on the 6th day of September, 1961 and injunction restraining the defendant, agents and servants and or whoever is claiming through him from further trespass on the said Plot numbered B. 649 situated at Gwange Extension, Maidugurio Borno State…”

 

The matter proceeded to trial and judgment was finally given in favor of the plaintiff in the lower Court, hence this appeal. The Appellant who was defendant in the lower Court has filed a notice of appeal dated the 20th day of December, 1999, containing 3 grounds of appeal. The Appellant later sought and obtained leave of this Court to file additional grounds of appeal on the 7th day of February 2001, and this contained four grounds of appeal, seeking to set aside the judgment of the lower Court delivered on the 10th day of December, 1999 and to order a retrial or in the alternative, dismiss the entire proceedings. He again filed further additional grounds of appeal by leave of this Court on 16th day of February, 2010 containing 5 grounds of appeal at pages 3 – 4 of the Amended Appellant’s brief of argument.

 

The Appellant however formulated 4 issues for determination from the further additional grounds of appeal. To wit:

 

1. Whether the learned trial court was right when it admitted Exhibit B & C without proper recourse to the provisions of Order 39 rule 5 of the Borno State Civil Procedure Rules 1988.

 

2. Whether the learned trial judge was right when he admitted and relied on a previous judgment in which the Appellant had not been a party to in finding in favour of the Respondent.

 

3. Whether the learned trial judge was right to make a finding of fact in the presence of uncontroversial laches and acquiescence.

 

4. Whether the learned trial judge was correct when he admitted public document exhibit C (lay out plan) when same was never certified and same relied upon to reach a decision against the Appellant.

 

The appellant in his brief of argument stated that issue (i) is predicated upon grounds 1 and 3 of the further additional grounds of appeal. The Respondent herein filed his brief of argument dated 21st day of October, 2004 and filed on 26th day of October, 2004 wherein he formulated 2 issues for determination as follows:

 

(a)     Whether the identity of the land/house was in dispute between the parties, if the issue of the identity of the land was in dispute, did the Respondent as Plaintiff before the lower Court proved (sic) the identity of the land as required by law?

 

(b)     Whether the Respondent/Plaintiff proved his case on the preponderance of evidence as required by the law.

 

Issue 1 relates to grounds 1 of the original grounds of appeal, ground 4 of the purported further additional ground of appeal. While Issue 2 relates to grounds 2 and 3 of the original grounds and grounds 1, 2 and 3 of the purported further additional grounds of appeal.

 

The Respondent herein filed a notice of Preliminary Objection based on the following grounds:

 

(a)     That the appellant formulated issues and argued same based on grounds of appeal which are not before this Court.

 

(b)     That the issues so formulated are not related to the grounds of appeal.

 

The argument of Counsel to the Respondent is that the Appellant applied for leave to file additional grounds of appeal as per the motion dated 18th day of December, 2000 which was filed on 19th day of December, 2000. That the application was heard on 7th day of February, 2001 and granted wherein the Appellant was given 14 days within which to file additional grounds of appeal which he never did. Counsel further argued that Appellant had no proper grounds of appeal since he was in contempt of the order of Court in failing to file the said additional grounds of appeal. He again submitted that the Appellant never sought for another order of Court to regularize the said grounds and that presently, the Appellant has at his disposal only the original grounds of appeal to rely on.

 

Learned Counsel for the Respondent further submitted that the Appellant in his brief of argument referred to Issue 2 as being formulated from further additional grounds of appeal numbered 1 – 4. That this Court did not at any stage of this appeal grant any leave to the Appellant to file further additional grounds of appeal. He again stated that Issue 2 of the Appellant has therefore been formulated from non-existing/incompetent grounds of appeal. That it is improper to formulate issues from incompetent or non-existing grounds of appeal. He then referred to the case of AFRICAN PETROLEUM LTD. V. OWUDUNNI (1991) 8 NWLR (PT. 210) 391 @ 423 where the Supreme Court held thus:
“It is settled that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struck out.
Reference was also made to the case of GABARM. ILORI (2003) FWLR (PT. 177) 901 @ 911.

 

Respondent’s Counsel further submitted that issue 2 be struck out as having not been based on a competent ground of appeal.

 

Learned Counsel for the Respondent further argued that issue 1 as formulated and argued by the Appellant does not in any way relate to the grounds of appeal. That the issue is hinged on the identity of the land while grounds 1 – 3 of the grounds of appeal do not relate to the identity of the land.

 

For purposes of clarity, learned Respondent’s Counsel reproduced the grounds of appeal as contained in the record of proceedings filed on the 9th day of March, 2012. He then submitted that the grounds as reproduced do not in any way relate to the identity of the land, the subject matter of the dispute between the parties but that it rather relates to issues of customary grant which the appellant abandoned or rather never argued. Learned Counsel then urged the Court to deem the said grounds of appeal abandoned and referred to the case of IGWE V. ALOZIEUWA (1990) 3 NWLR (PT. 141) 735 @ 749.

 

Counsel then concluded that since the Appellant canvassed issues that are not in the grounds of appeal filed before this court; those issues cannot stand and ought to be struck out. He again referred to the case of AFRICAN PETROLEUM V. OWODUNNI (SUPRA) AND GABARI V. ILORI (SUPRA).
He then urged the Court to dismiss the appeal as lacking in merit.

 

In his reply, learned Counsel for the Appellant submitted that the sole ground for the Respondent’s Preliminary Objection is that the issues formulated by the Appellant are from the grounds of appeal outside his original notice and grounds of appeal hence Order 6 Rule 2 (1) and Order 6 Rule 4 have not been complied with. He further submitted that the Appellant has fully complied with Order 6 Rule 2 (1) of the Rules of Court by filing the “Notice of Appeal” as provided by the rules within time. That there is no law stipulating the fact that the Appellant must rely on the original grounds of appeal. Also that the Respondent further contends that the Appellant only formulated issues outside the Appellant’s original notice and grounds of appeal and therefore incompetent.

 

Learned Counsel for the Appellant again submitted that this Court on the 4th day of October, 2009 granted the Appellant leave to file further additional grounds of appeal. That the Appellant was granted leave on the 16th day of February, 2010 to amend his brief of argument to incorporate further additional grounds of appeal and that the Appellant formulated four issues for determination from the further additional grounds of appeal in the amended brief which was also replied to by the Respondent.

 

Learned Counsel for the Appellant concluded that it is not a mandatory requirement to formulate issues from the original grounds of appeal and that the Appellant’s notice of appeal is still valid as it was filed within time having complied with Order 6 Rule 2 (1) and Order 6 Rule 4 of the Rules of this Court. He then urged the Court to disregard the Respondent’s preliminary objection.

 

Learned Counsel for the Appellant in the Reply brief submitted that the Preliminary Objection to the Appeal raised by the Respondent is incompetent and ought to be struck out. The Respondent however argued basically that since, the Appellant did not argue issues formulated from his original grounds of appeal, the issues raised hereinafter ought to be struck out and the entire appeal dismissed.

 

I have considered all the submissions of both Learned Counsel in this matter. It is however on record that the appellant applied for leave to file additional grounds of appeal as per the motion dated 18th day of December, 2000-and filed on 19th day of December, 2000. The said application was heard on the 1st day of February, 2001 and the Appellant was given 14 days to file additional grounds of appeal. The argument of the Respondent is that the Appellant having been granted such leave the Appellant never did file his additional grounds of appeal and thus flouted the order of this Court. That the Appellant did not seek another order of Court to regularize the said grounds of appeal.

 

My records however show that the Appellant filed a motion on notice on the 30th day of May, 2007 for an order granting leave for the Appellant/Applicant to file further additional grounds of appeal. That application was however granted on the 4th day of October, 2007. Again on the 15th day of February, 2010 the Appellant filed a motion on notice dated 13th day of February, 2010 praying for an order granting leave to the Appellant/Applicant to amend his brief of argument to incorporate the further additional grounds of appeal filed on 4th day of January, 2007 by order of this Court. That leave was granted on the 16th day of February 2010. It is therefore not correct for the Respondent to say that this Court did not grant the Appellant leave to file further additional grounds of appeal. That order was granted on the 4th day of October 2007 as per my records. I also hasten to add that further grounds of appeal have been properly filed and served and any issues arising from those grounds of appeal are proper before this Court, as the grounds of appellate also competent before this Court.

 

However, the Respondent’s grouse is that the issues so formulated by the Appellant do not derive from the Appellant’s original grounds of appeal and therefore deemed incompetent. I do not agree with that line of reasoning. I still reiterate the fact that the Appellant by leave of Court filed further additional grounds of appeal from which his issues were formulated. Since no issues were formulated from the Appellant’s original grounds of appeal, those grounds of appeal are deemed abandoned and I do hereby strike them out accordingly. The law is that where no issue for determination is formulated from a particular ground of appeal, that ground of appeal is deemed abandoned and would be struck out as it is in this case. See ANPP V. INEC (2004) 7 NWLR (PT. 871) 16. BHOJSONS PLC V. DANIEL – KALIO (2006) 5 NWLR (PT.973) 330 SC.

 

From the totality of all of the above, I hold the view that the Appellant’s Notice of Appeal is still valid as the Appellant has complied with Order 6 Rule 2 (1) and Order 6 Rule 4 of the Rules of this Court. Consequently, it is my view that the Preliminary Objection herein is misconceived and totally lacking in merit. It is hereby struck out accordingly.

 

The Appellant in his amended brief of argument and based on the further additional notice and grounds of appeal has formulated 4 issues for determination to wit:

 

1. Whether the learned trial Court was right when it admitted Exhibit B and C without proper recourse to the provisions of Order 39 rule 5 of the Borno State Civil Procedure Rules 1988.

 

2. Whether the learned trial judge was right when he admitted and relied on previous judgment in which the Appellant had never been a party to in finding in favour of the Respondent.

 

3. Whether the learned trial judge was right to make a finding of fact in the presence of uncontroversial laches and acquiescence.

 

4. Whether the learned trial judge was correct when he admitted public document exhibit C (lay out plan) when same was never certified and same relied upon to reach a decision against the Appellant.

 

The Respondent however in his brief of argument dated 21st day of October 2004 and filed on 26th day of January, 2004 has formulated two issues for determination but curiously arising from the Appellants 3 original grounds of appeal dated 20th day of December, 1999 as follows:

 

(a)     Whether the identity of the land/house was in dispute between the parties, if the issue of the identity of the land was in dispute did the respondent as plaintiff before the lower court proved the identity of the land as required by law?

 

(b)     Whether the respondent/plaintiff proved his case on the preponderance of evidence as required by law.

 

The Respondent’s issue No. 1 as stated, relates to ground 1 of the original ground of appeal and ground 4 of the further additional ground of appeal, while issue 2 relates to grounds 2 and 3 of the original grounds of appeal and grounds 1, 2 and 3 of the further additional grounds of appeal.

 

ISSUE 1 & 4: The argument of the Appellant on issues No. 1 & 4 which are predicated on grounds 1 and 3 of the Appellant’s further additional grounds of appeal is thus.

 

Learned Counsel for the Appellant submitted that the major bone of contention is whether Exhibits B and C could be admissible in contravention of the provisions of Order 39 Rule 5 of the High Court Civil Procedure Rules 1988. He further submitted that failure of the trial Court to reject the document despite the objection raised by opposing Counsel had greatly occasioned a miscarriage of justice as the Appellant had not been given the opportunity to see the document before hand and to make any necessary findings in respect thereof. He stressed on the Principle that rules of Court are meant to be obeyed being an instrument giving prestige and powers to the Courts. He then cited the case of SOLANKE V. SOMEFUN 1974 1 SC 141 and IBODO V. ENAROFIA 1980 5 – 7 SC 42 where the Court stated thus:

 

“Rules of Court are meant to be obeyed and followed; they are not in books for fun or as window dressing. They regulate matters in Court and help the parties to present their case within a procedure made for the purpose of a fair and quick trial …”

 

Counsel further submitted that the importance of Order 39 is very clear and unambiguous for where wordings of statutes are precise and clear nothing could be added to alter or supercede the real intent of the law makers. He then cited the case of COTECNA INT. LTD. V. IVORY MERCHANT BANK LTD. & ORS. (2006) 9 NWLR PT. 985 275 @ 289 – 290 Para 11 – 13 where it was held thus:

 

“As the rule of the legislature is that of making the law or lawmaking, the role of the judiciary is that of interpretation of the law. Therefore, where the language of a statute is clear, unambiguous, not subject to alternative of interpretation the Court must give the words their ordinary meaning.”

 

Counsel for the Appellant further argued that the ruling of the lower Court, that documents sought to be tendered are not those anticipated under Order 39(5) of the Borno State High Court Civil Procedure Rules is untenable as it no doubt falls under the power of what is intended under Order 39 Rule 5.

 

Learned Counsel again submitted that the provision of Order 35 Rule 5 had not been complied with as the condition precedent to admissibility of Exhibits B and C had not been met. That relying heavily on those documents to make a finding for the Plaintiff has occasioned a miscarriage of justice as the said plan which ought not to have been admitted had been used to determine the identity of the land in question.

 

In a further submission by learned Counsel for the Appellant he stated that the person through whom the said document was admitted was not properly subpoenaed to appear in Court. That the subpoena through which he was invited to come to Court was not tendered before the Court, contrary to Section 219 (1) and Section 220 of the Evidence Act. He then urged the Court to hold that Exhibits B and C were wrongly admitted and that this has occasioned a miscarriage of justice.

 

In reply learned Respondent’s Counsel submitted that the burden of proving the exact location and extent of land the subject matter of dispute between the parties is on the Plaintiff / Respondent herein. He then referred to the case of ONUWAJE V. OGBEIDE (1991) 3 NWLR Pt. 178 147 @ 162. He further submitted that to prove the location or extent of any land, same can be done on the pleading by description. He then referred to paragraph 4 of the further amended statement of claim at page 4 of the printed record of appeal and paragraph 16(a) at page 5 of the record. Learned Respondent’s Counsel also referred to paragraph 3 and 10 of the further amended statement of defence thus:

 

“The defendant in further answer to paragraph 6 of the statement of claim, avers that the plaintiff did not construct anything on the said piece of land but him (defendant) who having bought it on 24/4/71 from Hassan and Modu Kagu for (95) Ninety five pounds i.e. N190.00k (one hundred and ninety naira only) in the presence of witnesses including the ward Head of the area and developed it and never paid any rent to the plaintiff or anybody else. The purchase receipt (Hausa Language) and its English translated certified true copy are hereby pleaded.”

 

“That defendant avers that he will also contend at the trial that even if plot 649 belongs to the plaintiff (which is not conceded) it has been (eaten) over taken by laches and acquiescence as he (the plaintiff) being a neighbour to the defendant, has seen him (defendant) starting and ending and the construction of the house in 1972 and 1973 respectively and he stood by uncomplaining till 1996 when this suit was instituted.”

 

Learned Counsel further submitted that from the two paragraphs quoted above, it is clear that both parties are ad idem as to the location and extent of the land, the subject matter of dispute but that the only issue in controversy between the parties is who is entitled to possession to the exclusion of the other. Counsel further made reference to the evidence of PW1 at page 8 of the record and exhibits A and A1 which are the allocation letter of the plot and the receipt in the Respondent’s name. Learned Respondent’s Counsel in his submission also referred to the evidence of PW2 who is the Lands Officer of the Lands Department of the Maiduguri Metropolitan Council and also exhibits B and C tendered by him. Respondent’s Counsel therefore further submitted that the issue of the identity of the plot was never an issue between the parties as none of them raised same. He then referred to the case of AWOTE V. OWODUNNI (No. 2) (1957) 2 NWLR (PT 57) 367 @ 371 where the Supreme Court held as follows:
“…There is no doubt that the onus-(and a very heavy onus it is) is on a plaintiff/claimant asking for a decree of declaration of title to show clearly the area of land to which his claims relates. Baruwa V. Ogunshola (1938) 4 WACA 159 refers. The plaintiff can do this by such oral description of the land that any suryeyor acting on such description can produce a plan of the land he claims – see KWADZO V. ADJEI (1944) WACA 274. Another and perhaps better way of proving the identify and extent of the land claimed is by filing a plan reflecting all the features of the land showing clearly the boundaries: Udofia & Ano. V. Afia & ors (1940) 6 WACA 216: Udekwu Amata V. Udogu Modekwu (1954) 14 WACA 580….”

 

It is the submission of the Respondent’s Counsel that the burden of proof was duly discharged by the Respondent by tendering Exhibits B and C and also that the land was clearly described by him in his evidence in chief at the Lower Court. He then urged the Court to dismiss the appeal on this issue and the grounds upon which the said issue is predicated.

 

The main grouse of the Appellant is that the Lower Court ought not to have admitted exhibits B and C in contravention of the provisions of Order 39 Rule 5 of the High Court Civil Procedure Rules 1988. For purposes of clarity, exhibit B and C are the Register of plots Allottees and the site plan of the land in dispute respectively. The Respondent in the Lower Court had tendered the allocation letter showing the plot number, and the receipt for payment. He also tendered the said exhibits B and C whose admission has become the bone of contention between the parties. Order 39 Rule 5 reads as follows:-

 

“Unless at or before the trial, the Court or a judge in chambers for special reasons otherwise orders or directs, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 (ten) days before the recommencement of the trial the parties other than the party procuring it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.”

 

By the provisions of the above recounted Order 39 Rule 5 the plaintiff (Respondent) is required to serve the other party (defendant/Appellant) in this case, with the plan intended to be used in evidence at least 10 days before the commencement of the trial. However, the same rule gives discretion to the Court to allow the use of the said plan even where it had not been served on the defendant where special circumstances exist. The trial judge however had considered the fact that the plaintiff had pleaded the lay out plan in his further amended statement of claim, thus the defendant could not have been taken by surprise at the trial since he was however aware that the said plan would be tendered in evidence. The trial judge in his considered ruling thus stated:

 

“The fact that the defendant did not have the opportunity to inspect the lay out plan 10 days before trial cannot in my humble view be a ground to reject the document having regard to the circumstances.”

 

She considered the fact that each case ought to be treated according to its given set of facts and circumstances and then went ahead to admit the register and lay out site plan of Gwange Area as exhibits B and C respectively.

 

I however throw my weight behind the reasoning and conclusions of the trial court on the issue. Order 39 Rule 5 is indeed merely procedural and the law is that once a document is pleaded and is relevant in law, it is admissible. I too agree that the said register sought to be tendered is not among the items required to be served on the defendant under Order 39 rule 5 of the Rules of the High Court. The issue of the civil servant not tendering his subpoena did not arise in the court below and I hereby consider that issue as an afterthought. Pw 2 was rightly subpoenaed to come to court and his identity was never in doubt being an officer in the Ministry of Lands, Borno State. I shall dismiss that contention as a non issue. From all of the above I therefore resolve issues Nos. 1 and 4 in favour of the Respondent.

 

ISSUE NO: 2 is whether the learned trial judge was right when he admitted and relied on a previous judgment in which the Appellant had never been a party to, in finding in favour of the Respondent.

 

Learned Counsel for the Appellant submitted that judgments of courts bind only parties, their agents and privies. That the judgment between MALLAM GANA ABOJA V. HAJIYA HAUWA of court No: 4, Maiduguri ought not to have been used to prove the case between the parties before this court or the court below. That the Appellant was never a party in that case. He further argued that the plot number upon which the previous judgment was given is different from that claimed by the Respondent in this case. That the Respondent got judgment in that case in respect of plot B.649 which the court below used in arriving at its decision.

 

The Respondents Counsel’s submission on the issue is that proof of his case is mainly based on preponderance of evidence as in civil matters. The court below however made its findings thus:

 

“It is evident from Exhibit ‘D’ the judgment of High Court No.4 Maiduguri that ownership of the piece of land in dispute was conferred on the plaintiff”

It can therefore be deduced that even though the Appellant was not a party in that case No. M/48/90 the said judgment in Exhibit D. can and was in fact used among other facts to strengthen the case of the Plaintiff/Respondent in the Lower Court. Exhibit D. the judgment of High Court No. Maiduguri confirmed the ownership of plot B. 649 which is the subject matter of the land in dispute. “The court below found that Exhibit D. was properly admitted as it was based on pleaded facts.” See the case of Monier Construction Co. Ltd. V Azubike (1990) 3 NWLR (Pt.136) 74.

 

From the totality of all of the above, I also resolve issue No. 2 in favor of the Respondent and against the Appellant.

ISSUE NO: 3 is whether the learned trial judge was right to make a finding of fact in the presence of uncontroversial laches and acquiescence. Learned Counsel for the Appellant submitted that the basic condition for the establishment of the doctrine of laches and acquiescence is the length of time. That before the said doctrine can avail a party; the court must necessarily consider the length of the delay by the other party. Counsel further submitted that the Respondent instituted his action after 24 years of the defendant being on the land, that by this, he had no doubt been caught by the doctrine of laches and acquiescence. That the attitude of the Plaintiff/Respondent created a burden and dismissed his chances to regain or enforce his rights. See the case of Alhaji Mustapha Kachalla V. Alhaji Tijjani Banki & Anor. (2001) FWLR Pt 73 @ Pg 7 where the Court held that “when a person abstains from doing something to enforce his legal rights, fully aware that they are being violated, he is deemed to have acquiesced in the violation”. The learned trial judge however found that the Defendant/Appellant failed to adduce cogent and credible evidence to show that the Plaintiff/Respondent was aware of the presence of the Appellant on the piece of land and failed to challenge him. Again learned Appellants Counsel argued that proper foundation ought to have been laid before the tendering of a certified true copy of the judgment through the registrar of the court. Counsel finally argued that in the previous suit, the document tendered was a Statutory Right of Occupancy while title Deed in the present suit is an Allocation letter from the Native Authority. He concluded that the two documents are at variance and thus Exhibit C cannot be used to defeat the Appellants defence of laches and acquiescence.

 

It is however to be noted that the two documents – statutory right of Occupancy and the letter of Allocation were both in favour of the Plaintiff/Respondent in the Lower Court. I am also yet to see a better qualified witness to tender a certified true copy of a judgment other than the registrar of the court. That piece of argument, I consider, is of no moment. Exhibit C was therefore rightly admitted. The learned trial judge however found that the defendant / Appellant failed to adduce cogent and credible evidence to show that the Plaintiff/Respondent was aware of the presence of the Appellant on the piece of land and failed to challenge him. The trial judge further stated that the defendant/Appellant “cannot be allowed to ignore the proof of his overlord’s title and rely on long possession. What must have played on the mind of the trial judge was the decision in the case of Olugbode V. Sangodeyi (1996) 4 NWLR (Pt 444) 500 SC where the Supreme Court clearly stated that the doctrine of laches and acquiescence and standing by are very alien to Yoruba Native law and custom because possession, however long, cannot be converted to title. I also agree with the learned trial judge on this issue and further hold that the claim by plea of laches, acquiescence and standing by is like beating about the bush in the face of the obvious claim by the Plaintiff/Respondent in the Lower Court. Again the Appellant alleged that he bought the said plot of land from a certain Kagu and Hassan. The position of the law is that if one traces his root of title from another, he must go further to trace the history of how that person through whom he derives title from got his title also. See the cases of INKO-TARIAH V. GOODHEAD (1997) 4 NWLR (Pt 500) 453 and EKPECHI V. OWHONDA (1998) 3 NWLR (Pt 543) 618.   It is also settled law that one of the five different ways of proving title to land is by documents of title See:

 

1. Idundun V. Okumagba (1976) 9 – 10 SC 227.
2. Atanda V. Ajani (1989) 3 NWLR (Pt 111) 511.
3. Onwugbufor V. Okoye (1996) 1 NWLR (Pt 424) 252
4. Lawson V. Manuel (2006) 10 NWLR (Pt 989) 569.

 

The plaintiff /Respondent in the Lower Court had tendered a letter of allocation of the said piece of land and also a receipt in his name. These were exhibits A and A1. In legal parlance, a party claiming declaration if title to land needs not prove all the five recognized ways of establishing title to land for him to succeed. Each of the five ways is independent of the others to prove title in a land case. It therefore follows that the establishment of one out of the five ways is sufficient to grant ownership.

 

See: Nwosu Vs Udeaja (1990) 1 NWLR (Pt 125) 188.

Lawson V. Manuel (2006) 10 NWLR (Pt 989) 569.

In the final analysis, and from the totality of all of the above, I hold that this appeal lacks merit and same is accordingly dismissed. The judgment of the Lower court delivered on the 10th day of December, 1999 is hereby affirmed. I make no order as to cost.

CLARA BATA OGUNBIYI, J.C.A.:

 

I have read in draft the lead judgment just delivered by my brother Philomena Mbua Ekpe (JCA). I agree with the reasoning’s and conclusion arrived thereat that the appeal is devoid of any merit. Some is therefore also dismissed by me in terms of the lead judgment.

JUMMAI HANNATU SANKEY, J.C.A.:

 

I read in advance the Judgment just delivered by my learned brother, Ekpe, J.C.A. and I agree with him.

 

In a claim of title to land, the burden is on the Plaintiff to prove the identity of the land claimed by him if the parties are not ad idem on the identity of the land. See Alhaji Tijani Salami V. Chief Surakatu Gbodoolu & others (1997) 4 SCNJ 196; Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 192. In the circumstances of this case, from paragraphs 4, 9, 10 and 15(a) of the Further Amended Statement of Claim (pages 4-5 of the Record) and paragraphs 3 and 10 of the Further Amended Statement of Defence (pages 6-7 of the Record), both the Appellant and the Respondent know the identity and the location of the land being litigated upon. In this case, the Respondent pleaded in those paragraphs of their Further Amended Statement of Claim thus-

 

“4.     The Plaintiff avers further that consequent to the averments in paragraph 3 his application was proved and he paid for the necessary fees being Five Pounds (5) on the 6th Day of September, 1966 and that on the payment of the necessary fees an allocation paper was issued to him in Hausa Language in respect of plot numbered B.649. The plaintiff shall at the hearing of this suit rely on the said receipt numbered A. 819435 of this dated 6th September, 1966 and also the letter of allocation in Hausa Language and a certified translated copy in English Language. The Plaintiff therefore pleads the document aforementioned.

 

9. That after the delivery of Judgment in suit no. M/145/90 the plaintiff set in motion the execution of the judgment to put him in possession pursuant to the judgment and that when the site plan, map and or layout plan of the area was produced by the authorities it was discovered that the plot developed by the plaintiff is not B.649 but numbered 648. The plaintiff pleads the map and or layout plan of the area concerned…

 

10. The plaintiff avers that it was then discovered that his rightful plot of land numbered B. 649 is presently being illegally and or unlawfully occupied by one Alhaji Modu Kidaguma where he developed same.

 

15(a)           WHEREAS the Plaintiff claims for the following reliefs:-

 

1966. Possession to all that plot numbered B.649 lying and situate at Gwange New Extension measuring 100 feet by 50 granted on 6th day of September, 1966.”

 

The Appellant in his Further Amended Statement of Defence pleaded in paragraphs 3 and B as follows-

 

“3.     The Defendant in further answer to paragraph 6 of the Statement of Claim avers that the Plaintiff did not construct anything on the said piece of land but him (Defendant) who having bought it on 22/4/71 from Hassan and Modu Kagu for (95) Ninety five Pounds, i.e. N190.00 (One Hundred and Ninety Naira) in the presence of witnesses including the Ward Head of the area and developed it and never paid any rent to the plaintiff or any body else. The purchase receipt (Hausa Language) and its English Translated certified true copy are hereby pleaded).

 

10. That Defendant avers that he will also contend at the trial that even if plot 649 belongs to the plaintiff (which is not conceded), it has been eaten by leaches (sic) and acquiescence as he (the plaintiff) being a neighbour to the defendant has seen him (the Defendant) starting and ending the construction of the house in 1972 and 1973 respectively and he stood by uncomplained (sic) till 1996 when this suit was instituted.”

 

So, its identity is a non-issue, See Alhaji Ila Alkamawa V. Alhaji Hassan Bello (1998) 6 SCNJ 127.

 

That being so, the issue of layout/site plan or no layout/site plan can also be disposed of quickly once it is realised that it is settled law that, where there is no difficulty in identifying the land in dispute, a declaration of title may be made without it being based on any plan. See Bajoden v. Enock Iromwanimu & another (1995) 9 SCNJ 205; Akinhanmi v. Daniel (1997) 6 SC 125; Ibuluya v. Dikibo (1976) 5 SC 97. One therefore finds it difficult to appreciate what the Appellant is really complaining about with respect to the identification of the land in dispute. It is thus crystal clear that both sides knew the land in dispute. There was no difficulty in identifying it. In addition, PW2, who is the Lands Officer of the Maiduguri Metropolitan Council, testified on the identification of the land in issue and tendered Exhibits B and C, the Register of plots of Allottees and the Site Plan of Gwange Area. I am therefore firmly of the view that the lower Court was right when it granted the declaration of title to the land and that Exhibits B and C were properly tendered and admitted in evidence.

 

Nevertheless, the lower Court was right when it granted the declaration of title to the land on the layout/site plan of the land (Exhibit C), and also when it held that Exhibits B and C were properly tendered in evidence. The Respondent did properly discharge the burden of proof placed upon it as held by the lower Court. The Appellant’s Counsel has therefore rightly submitted that the only issue in controversy between the parties was who is entitled to the land.

 

The Appellant also takes up issues with the Judgment of the lower Court in issues two and three, that the trial Court was wrong when it admitted and relied on a previous Judgment in which the Appellant had never been a party to, in finding for the Plaintiff/Appellant. More specifically, he argued in his Brief of argument that the previous Judgment between Mallam Gana Aboja, (the Respondent) and Hajiya Hauwa, was used in assisting to give Judgment against the Appellant. However, contrary to the submission of learned Counsel, this is the learned, trial Judge’s finding at page 33 of the Record:

 

“It is evident from Exhibit ‘D’ the Judgment of the High Court No. 4 Maiduguri that ownership of the piece of land in dispute was confirmed to the Plaintiff Defendant was not a party to suit M/45/90 between Mallam Gana Aboja (Plaintiff) and Hajja Hauwa, hence the present suit. From this piece of evidence it cannot be said that Plaintiff slept over his right. As rightly submitted by Plaintiff’s Counsel the plea of res judicata cannot apply in this case as Defendant cannot be bound by the order made in Exhibit ‘D’. I hold that the equitable defences are not available to the Defendant having regard to the surrounding circumstances of the case.”

 

With profound respect, what is contained in the finding of the lower Court as set out above is nothing like what is submitted in the address of Counsel. Instead, from the foregoing, I take the view that the trial Court was undoubtedly right in treating Exhibit ‘D’ as evidence that the Respondent did not sleep over his right and so was not guilty of laches and acquiescence. Thus, in Ajuwa V. Odili (1985) 2 NWLR (Pt. 9) 710 @ 712, the apex Court held in an analogous situation that:-
“A previous Judgment as in Exhibit ‘E’, although not binding on the Plaintiff as estoppels per rem judicata strengthens the case of the defence to establish ad of possession in their favour. (James Oluba V Chief Sillo (1973) 1 SC 37 @ 55-56) followed.” See also Chief M.O. Agbaisi & others V. E. Ebikorefe & others (1997) 4 SCNJ 747; Chief Dokubo A. Aseimo & others V. Chief Anthony Amos & others (1975) 2 SC 57; and Okechukwu & others V. Okafor & others (1961) All NLR 685 @ 690.

 

The Appellant’s contention here lacks merit, and this issue is equally resolved against them.

 

Besides since, from the findings of the learned trial Judge, the Appellant was unable to establish his root of title, any sale of land to him where the vendor has no title to pass is not effective – Nemo dat quod non habet. See Haladu Dadi V. Idi Garba (1995) 9 SCNJ 232.

 

On the whole, this Appeal is devoid of substance. Thus, it is for the above, and the more elaborate reasons contained in the leading Judgment that I, too, dismiss the Appeal. I abide by the consequential order made in the leading judgment.