3PLR – MAJOR BUKAR ALIBE (RTD) V. ALHAJI YARO
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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MAJOR BUKAR ALIBE (RTD)
V.
ALHAJI YARO
COURT OF APPEAL
(JOS DIVISION)
CA/J/100/95
MONDAY, 9TH APRIL
3PLR/2001/50 (CA)
OTHER CITATIONS
1 NWLR (Pt 747)238
BEFORE THEIR LORDSHIPS
ALOMA MARIAM MUKHTAR, J.C.A. (Presided)
OLUDADE OLADAPO OBADINA, J.C.A.
IFEYINWA CECILIA NZEAKO, J.C.A. (Read the Leading Judgment)
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Evaluation of evidence by trial court – Attitude of appellate court thereto.
APPEAL – Findings of fact by trial court – Attitude of appellate court thereto-Where appellate court is in doubt as to whether or not trial court is right in its finding of fact- What appellate court must do.
APPEAL– Findings of fact by trial court-Failure of appellant to attack a particular portion of judgment appealed against – Effect.
COURT -Trial court – Evaluation of evidence – Duty of trial court in respect thereof.
EVIDENCE– Evaluation of evidence -Duty of trial court in respect thereof.
EVIDENCE – Proof – Proceedings and judgments of court – How proved -Sections 96, 97 and 132(1) of Evidence Act.
EVIDENCE. Proof of case-Duty on plaintiff to succeed on strength of own case and not on weakness of defendant’s case.
EVIDENCE – Presumptions – Withholding of evidence by party – Presumption raised thereby-Section 149(d) of Evidence Act.
JUDGMENT AND ORDER – Proof- Proceedings and judgments of court – How proved – Sections 96, 97 and 132(1) of Evidence Act.
LAND LAW – Trespass to land – Party alleging trespass to land – Onus placed on him thereby.
LAND LAW-Declaration of title to Plaintiff claiming title to land or whose title to land has become an issue as a result of defendant’s pleading-Onus placed on him thereby.
LAND LAW – Declaration of title to land – Where two competing parties trace their title to common grantor-Principle guiding resolution of
LAND LAW – Trespass to land – Action therein -Importance of possession thereto.
PRACTICE AND PROCEDURE – Findings of fact by trial court – Attitude of appellate court thereto – Where appellate court is in doubt as to whether or not trial court is right in its finding of fact-What appellate court must do.
PRACTICE AND PROCEDURE – Findings of fact by trial court – Failure of appellant to attack a particular portion of judgment appealed against – Effect.
PRACTICE AND PROCEDURE – Evaluation of evidence by trial court -Attitude of appellate court thereto.
PRACTICE AND PROCEDURE – Proceedings and judgments of court -How proved-Sections 96,97 and 132(1) of Evidence Act.
PRACTICE AND PROCEDURE– Proof of case- Duty on plaintiff to succeed on strength of own case and not on weakness of defendant’s case.
TRESPASS – Trespass to land – Action therein – Importance of possession thereto.
MAIN JUDGMENT
NZEAKO, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice, Borno State of Nigeria, the appellant herein, was the plaintiff. By a writ of summon filed on 20/3/93 he sought the following relief:
- N30,000 damages for trespass.
- An injunction restraining the defendant from further acts of trespass on plaintiff’s piece of land lying and situate immediately behind plaintiff’s residential house on No. 24 Waziri Kolo Street, Gamboru Liberty, Maiduguri.
After parties filed and exchanged pleadings and led evidence, the learned trial Judge dismissed the plaintiff’s claim in its entirety. Dissatisfied, the plaintiff has appealed to this court by notice of appeal upon 2 grounds.
Ground 1: That the decision is against the weight of evidence.
Ground 2: That the learned trial Judge erred in law and misdirected himself on the evidence before him when he held in his judgment thus:
I believe the evidence before me that the owner of the plot Talba sold the plot to both the plaintiff and the defendant. The defendant however bought it in 19/7/1991 by Exhibit “C” whereas the plaintiff bought it after on 18/3/92. The defendant therefore was on the plot before the plaintiff.”
Counsel for the parties filed and exchanged briefs of argument. Appellant’s brief was filed on 20/11/96, pursuant to the order of this court of the same date. The respondent’s filed on 7/10/97, pursuant to the order of the court made on 20/1/98 was deemed properly filed and served.
In his brief of argument, learned counsel for the appellant S.B. Bess Esq., identified the following two issues for determination, said to relate to the two grounds of appeal:
- Whether or not the learned trial Judge was right in holding that by the evidence before him the owner of the piece of land sold same to both appellant and respondent.
- Considering the evidence adduced before the trial court, who between the parties had a better title to the land as at the time of commencing this action in the High Court. For the respondent, learned counsel M. Monguno Esq., adopted the two issues as framed by the appellant and also urged that the following 2 other issues arise for determination:
(i) Was there any conclusive and legally admissible evidence before the trial High Court that the sale of the land in dispute to the respondent was set aside by any court?
(ii) Assuming there was a court order setting aside the sale of the land in dispute to the respondent, can such order be binding on the respondent, and the vendor (Talba Alkali) when they were not joined as parties to the case. It seems to me that the two issues mutually adopted by the parties will answer the controversy in this appeal. In answering to those issues, the two additional issues being proposed by the respondent will be taken care of. They arise within the argument on the two issues agreed upon which I adopt for this judgment. The background to this appeal was that the appellant brought this action claiming damages for trespass and injunction against the defendant over a piece or parcel of land which belonged to one Talba. The appellant claimed that he bought the land from Baba Talba Alkali on 18/3/93 as shown on his receipt admitted in evidence as Exhibit “A.” The purchase price was N10,000. The appellant averred in his statement of claim thus:
Paragraph 8:” The plaintiff further avers that the defendant without any justification unlawfully entered into the piece of land sold to him started to develop it by trying to erect a building on the piece of land.
Paragraph 9: Efforts by the plaintiff to stop the defendant from further acts of trespass on the land failed as the defendant continued to develop the piece of land.
Paragraph 10: The plaintiff states that the defendant falsely claimed to be the owner of the same piece of land and claimed to have bought it from one Bukar Bulama for N11,000.00.
Paragraph 11: The plaintiff avers that the purported sale of the piece of land in dispute by Bukar Bulama to the defendant Alhaji Yaro was declared null and void by Lamisula Area Court as that sale was in contravention of certain Islamic rules as the court found that there was no valid sale of the piece of land by the original owner, Baba Talba Alkali, to Bukar Bulama.
Paragraph 12: The Plaintiff shall at the trial . . . rely on the judgment of the Lamisula Area Court in Suit No, 268/91 delivered on 11/10/91.
Paragraph 13. An appeal to the Upper Area Court No. 2 Maiduguri against the decision of the Lamisula Area Court was also dismissed and the decision of the trial court affirmed.
Paragraph 14: The plaintiff avers that the entry by the defendant into the piece of land when he was aware of the nullification of the sale to him was unlawful and is in law an act of trespass into the said piece of land. The plaintiff shall at the trial of this suit rely on the judgment of Upper Area Court 2 Maiduguri in Suit No. 38/91 delivered on 15/2/92 and same is hereby pleaded.”
The respondent on the other hand pleaded that he had title to the land which he bought from the owner Talba on 9/7/91 at N11,000.00 as evidenced by Exhibit ‘B’ Local Government Alienation Permit issued to Baba Talba the seller and him, Yaro as buyer, dated 19/7/91, and Exhibit ‘C’ acknowledging payment of N11,000.00 by the respondent to Talba.
In his statement of defence, the respondent also averred as follows:
Paragraph 6: The defendant denies the averments in paragraph 6; of the statement of claim and pleads that the said Talba Alkali did not sell the plot to the plaintiff for N10,000.00 nor was there any payments as alleged.
Paragraph 7: Further to paragraph six (6) hereof, the defendant avers that the said Talba Alkali sold the plot only to the defendant as per a written sale agreement and upon a permit to alienate the plot numbered 15466 duly issued by the Maiduguri Metropolitan Council which are hereby pleaded.
Paragraph 8: The defendant in reply to paragraph (7) of the statement of claims avers that there was no valid sale to the plaintiff and the plaintiff was not in Maiduguri when the plot was sold to the defendant who is now the lawful, legal and equitable owner of the plot.
Paragraph 9: In answer to paragraph eight (8) and nine (9) of the statement of claim the defendant denies the allegations of want of justification and unlawful entry, into the plot but admits the erection of building on the plot which was after the sale was completed in favour of the defendant. The defendant further denies being put on notice by the plaintiff to stop the development of the plot except briefly at the instance of this honorable court.
Paragraph 10: In answer to paragraph ten (10) of the statement of claim the defendant avers that he bought the Plot from the lawful owner, Talba Alkali (simply referred to sometimes as “Baba Talba”) and not from Bukar Bulama whose role in the transaction, if any, was that of an estate agent.
Paragraph 11: In reply to paragraphs 11,13 and 14 of the statement of claim, the defendant hereby avers that he was not a party at all to suit No. 268191.
Paragraph 13: The defendant further avers that the Plot is situated less than two kilometers from the Shehu of Barrio’s Palace here in Maiduguri and was developed at the time of the competence of that court to entertain the said suit will be raised at the trial of this case. Paragraph 13: The defendant hereby avers that no Islamic rules or the rules of any other law was contravened in the sale to the defendant and that no title was passed to Bukar Bulama by Baba Talba Alkali as alleged in paragraph 11 of the statement of claim.
Paragraph 14: The defendant in reply to paragraph 15 of the statement of claim hereby denies the ownership of the plaintiff.”
In the above manner, the respondent put the appellant’s title to the piece of land, in issue. After hearing the parties, the learned trial Judge gave judgment to the effect that the title of the respondent was better than that of the appellant’s. He dismissed the appellant’s claim. This brought about this appeal. At the hearing of the appeal, learned counsel for each party adopted his brief of argument, having nothing more to urge. I will now consider the two issues for determination.
In Issue No. l: parties canvassed the correctness of the finding of the court below that Talba sold the plot of land in issue to both parties, which the appellant had complained about.
In his judgment the trial Judge stated thus:
“I have considered the evidence before me. I have studied the demeanour of all the witnesses who testified before me. I believe the evidence before me that the owner of the plot Talba sold the plot to both the plaintiff mid the defendant. The defendant however bought it in 19/7/1991 by Exhibit ‘C’ whereas the plaintiff bought it after on 18/3/1992. The defendant was therefore on the land before the plaintiff. It is trite law that the defendant has an earlier and better title. The plaintiff in his evidence said when he went to inspect the plot, he met the defendant there working and warned him but the defendant did not heed. I think it was when the plaintiff wanted to buy it and they discovered that the defendant has been there before him that they decided to go to Lamisula Area Court .
I have italicized the portion of the judgment which the appellant singled out for complaint. I have set it out within the context in which it was given by reproducing what went immediately before it and after. It must be pointed out that before the above appraisal and findings, the trial Judge had gone to some length to review the case for each party and the testimony of his witnesses. For each party had testified and called two witnesses.
In answering this issue learned counsel for each party had, in his brief of argument, put forward argument and legal authorities in support of their respective cases. I will itemise the points made by the appellant in his brief and those by the respondent. I must say that the careful presentation in the respondent’s counsel’s brief in numbered paragraphs has been most helpful.
For the appellant
(1) His grudge “is the conclusion reached by the trial court at page 17 1ines 10-19 of the records (supra).
(2) It was rightly in my view conceded:
(i) That the learned trial Judge might have considered the evidence and, studied the demeanour of the witnesses—
(ii) That doing those is the exclusive preserve of” the trial Judge who had the advantage of seeing and hearing the witnesses.
(3) But the gist of appellant’s main grudge that going by the printed record, and the testimonies recorded by the trial Judge, it was not believable that the owner of the land sold same to both parties.
(4) The law that the party first in time has a better title applies only where both parties have established by credible evidence that they bought the same land at different times, not where the respondent led inconsistent and discreditable evidence as against appellant’s simple straight forward evidence and the owner testified that he sold to the appellant not to the respondent.
In his view, the evidence of the appellant and his witnesses that the owner. PW3 sold the land to him at N10,000.00 was not contradicted. On the other hand according to the appellant this was not the case with the respondent, whose evidence was full of inconsistencies which he identified on pages 11 lines 6-8 and 25-29 of the records. These inconsistencies, counsel said, show that he did not know who sold the land to him. Appellant took up the testimonies of DW2 and DW3, and tried to discredit them, pointing out that no reasonable tribunal would believe the respondent’s story to hold that the land was sold to him, as the trial Judge did.
Counsel for the appellant cited authorities to show that notwithstanding the lower court’s advantage of seeing and hearing the witnesses, an appellate court has power to interfere with the finding of fact which is manifestly illegal or wrong as in this case. He urged that this court can reverse the finding that the owner Talba sold the land to both parties. He cited these cases in support: Chukwaocha v. Omaha (1991) 4 NWLR (Pt. 184) 234 at 241 A-C, Fatoyinbo v Williams, 1956 1 FSC 87, Woluchem v. Gudi (1981) 5 SC 291; Obodo v Ogba (1987) 2 NWLR (Pt.54) 1 per Oputa, JSC.
For the respondent, it was submitted that the finding of the trial Judge that Talba sold to both parties was right. Learned counsel M, Monguno Esq., argued that:
From the content of Exhibit “C” which was executed on the 4″ July, 1991 and Exhibit “A” which was executed on the 18 March, 1992, it was sufficiently clear and unambiguous that the owner of the land, who testified as P.W3. first sold the land to the respondent and that the appellant was not happy about that sale. These the appellant asserted that he challenged the sale in court (i.e the Lamisula Area Court, Maiduguri) which set aside the sale of the land to the respondent, clearing the way for a second sale of the land to the appellant as per Exhibit “A” (see page 8 lines 20-27 page 9 lines 22-31 and page 10 line 6-23).
- Counsel pointed out that at the trial, the trial Judge granted an adjournment to the appellant to enable him produce before him the judgment of that court, if any, which was said to have set-aside the sale of the land to the respondent but appellant failed to produce any such judgment or order of court as was alleged to exist and the production of that is mandatory under section 132(l) of the Evidence Act. In the circumstance, counsel urged the learned trial Judge was right in holding that there were two sales and that the first in time prevails.
- He further contended that since the owner of the land sold the land to the respondent first, title had passed to the respondent as per Exhibit “C”. The owner there fore had become divested of his title and any subsequent sale by him as in Exhibit “A”, is a nullity. This is expressed in the maxim “Nemo dat quod non haber” (i.e no one gives, who possesses not or no one may convey what no longer belongs to him) as held by the Supreme Court in the case of Tewogbade v. Obadina (1994) 4 NWLR. (Pt. 338) 326 ratio No. 1 at Pages: 347-348, which the learned trial Judge followed. Also, Ugbo v. Aburime (1994) 8 NWLR (Pt 360) 1 at page 19.
With the foregoing, the case for the parties will now be examined. The complaint of the appellant is against the specific finding of fact made by the learned trial judge. For those findings, the Judge gave his reason based on what he saw of and heard from the witnesses and the demeanour of those witnesses who testified before him. This is so, notwithstanding that the learned trial Judge did so in minimal number of words. The appellant complains that the finding was wrong having regard to the evidence on record. We are invited to interfere with that finding. Can the Court of Appeal do so? The law applicable is well settled.
The starting point is that where there has been a proper appraisal of the evidence by the trial court an appeal court ought not to embark on a fresh appraisal. Also, if the trial court unquestionably evaluates the evidence before it. It is not the business of the Court of Appeal to substitute its own views for the views of the trial court, so the Supreme Court decided in, Woluchem v Gudi (1981) 5 SC 291, 319 also (1981) NSCC 216 at 229 per Nnamani JSC: Balogun v Agboola (1974) 10 SC 111; Akinloye & Anor v Eyiyola & Ors. (1968) NMLR 92. As rightly admitted by learned counsel for the Appellants the duty to evaluate evidence is one squarely thrust on the trial courts not on the appellate court except in the circumstances which the courts have identified and recognized. In Obodo v Ogba & Ors, (1987) 2 NWLR (Pt.54) 1(1987) 1 All Nig. L.R. (Pt. 1) 157 at 163 and 165, Oputa, JSC, had this to say:—
“The appellate court would not descend into the arena to usurp the function of the trial Judge in the evaluation and assessment of evidence unless it is clear that the trial Judge had failed in that particular and peculiar function of his.”
The learned Justice of the Supreme Court identified what he terms, “Principle No. 2,” which is that it is not the function of the appellate court to disturb the findings of fact of the trial court unless such findings are shown to be unreasonable or perverse and not a result of a proper exercise of discretion.”
He went on at page 165 of the Report:
The authorities on this branch of the law confirm that there is universal reluctance on the part of the appellate courts to reject a finding on specific facts particularly where suck finding is based on demeanour, bearing or credibility of witnesses who testified before the trial court.”
(Italics supplied).
See also Federal Commissioner for Works v. Lababedi (1977) 11-12 SC 15 at 24 per Obaseki JSC. Kuma v. Kuma (1936) 5 WACA 4 at page 9 (A Privy Council decision, MacJaja v Ibok (1974) 12 WACA 148 at 149 – 5.
To underscore the importance of these principles which may be regarded as sacrosanct, the Supreme Court went further to add in Obodo v Ogba (supra) that where the appellate court is in doubt as to whether the trial court was right or wrong, it was bound to resolve it in favour of the trial court, the point being that the onus is on the appellant to satisfy the appellate court that the decision appealed from was wrong. Where doubt exists, then that onus on the appellant has not been discharged.
In another more recent case, the case of Akpan v Otong (1996) 10 NWLR (Pt 476) 108, the Supreme Court reiterated these principles that where the findings of fact of a trial court are adequately supported by evidence on record and they were neither established to be perverse nor reached as a result of a wrong approach to the evidence or any principle of substantive law or procedure, an appellate court may not interfere with such findings of fact. See also Enang. v. Adu (1981) 11-12 SC 25 Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) 718.
In the light of these legal authorities, therefore, the starting point in the matter before us is to see if the findings now complained of are adequately supported by the evidence on records. For this purpose, I will start with the evidence of the plaintiff-appellant and his witnesses, and what the court below made out of it. In doing this I am guided by another well-established principles held to heart by the courts. This is that in civil cases, it is the plaintiff who must first prove his case and make it strong enough to support his pleadings and any weakness or failure on the part of the defendant, cannot alleviate this primary burden on the plaintiff. It is observed that in his judgment, the learned trial Judge carefully reviewed the evidence of the witnesses, taking them one by one outlining their testimony before him. Thereafter, he applied what he had been, heard and observed including their “demeanour.” There was the documentary evidence tendered by the parties – Exhibit “A” tendered by the appellant as appellant’s receipt or evidence of payment of N10,000.00 and with Talba as seller and Exhibits B and C tendered by the respondent being evidence of payment of N11,000.00 also with Talba as seller. Exhibit `A’ shows that the appellant bought from Talba on 18/3/92 and Exhibits, B and C, that the respondent bought from Talba earlier on 19/7/1991. The learned trial Judge also found rightly in my view from the testimony of the appellant that the respondent was on the land before him. The learned trial Judge said in his judgment at page 17 lines 17-19:
“The plaintiff in his evidence said when he went to inspect the plot, he met the defendant working and warned him but the defendant did not heed.
Thereafter he added,
“I think it was when the plaintiff wanted to buy it and they discovered that the defendant has been there before him that they decided to go to Lamisula Area Court……..”
It is significant that the appellant did not attack this later part of the judgment containing the inferences which the learned trial Judge drew from the evidence before him. In other words, the appellant accepted those findings. The findings and those complained of seem to me to be amply supported by evidence and the testimony of the plaintiff/appellant himself and his PW2 and 3 and thus cannot complain. It is recorded at page 8 from line 22 to line 28 of the records that the plaintiff testified thus:
“l inspected the land. Similarly I was aware of the handwriting on it. It was the defendant on the land. I asked my brother to go and rind out. He said he bought the land. I asked the defendant to stop developing the land. He did not stop, I went to Lamisula Area Court. I sued the Ward Head and Talba… The sale of the land to the defendant was nullified .
The above evidence and its sequence; show that the learned trial Judge was not wrong in his findings. It shows that the respondent bought from Talba and that the respondent was in possession as a result. The ward head was privy to it all. The appellant acknowledged this. For, otherwise, why sue Talba and the Ward Head? Why nullify sale to the defendant by suing Talba. At page 9 line 79 the plaintiff said in cross-examination:
“I did not identify who owned the land before paying the N10,000.00.”
PW2 at page 9 lines 16 -21 said.
“I know the Plaintiff ………… Major Alibe (rtd.) we are friends, I know the defendant Alhaji Yaro. Yaro had a piece of land after his house. He bought it from one Talba Alkali. I was there during the sale. It was sold for N10,000.00 to Major Alibe. Talba gave the plaintiff evidence of purchase. I can recognise the evidence, it was a document.”
What else, one would ask could anyone make out of what the plaintiff and his witness said, other than what the learned trial Judge found? The underlined part of their oral evidence obviously show that the defendant bought from Talba and was on the land before the plaintiff bought. Talba was the common denominator between them and for whatever interest each of them had. Plaintiff in his evidence also said that he “sued the ward head and Talba” and “The sale of the land to the defendant was nullified,”
If Talba did not sell or was not a privy to the sale to the defendant, why did the plaintiff sue Talba and said so. Even from the evidence of Talba himself and its sequence, the same findings are discernible. This is so inspite of the lack of coherence which characterised or seems to characterise the testimony of all the witnesses, as recorded. No wonder, the learned trial Judge had to resort to using their “demeanour” to get out of the mess they all created.
“I know the Plaintiff Major Alibe. I know him in Lamisula Area Court in respect of a plot. I was the owner of the plot. The plot was already sold. The case went to Lamisula Area Court……………. From there to Upper Area Court II Maiduguri where they affirmed with Lamisula. I was given the Plot back. I sold it to Major Alibe the plaintiff at N10,000.00. I wrote him a receipt ………………….. I only saw Alhaji Yaro at Area Court. I never knew him. I did not sell the same plot to Alhaji Yaro.”
What meaning and facts did the plaintiff/appellant want the above testimony of his witness Talba to convey – “The plot was already sold.” To whom? “The case went to Lamisula Area Court” …. Plaintiff sued. Then he said “I was given the plot back.” From who? Obviously the person to whom it was “already so]d”. Then, I sold it to Major Alibe the plaintiff… “ It is obviously after the case at the Area Court that he sold it a second time, if there was such a case at all, I will return to this later. Yet. Talba also said of Alhaji Yaro, the defendant, “I never knew him. I did not sell the same plot to Alhaji Yaro.” Then to questions in cross-examination Talba went on,
“I sold the land to Major Alibe. I don’t know who bought it before Major Alibe.
I was not sued by the Lamisula but was called to after the case was over. I was not a party to the appeal.”
Question – what is the truth? It will be recalled that the plaintiff testified that he sued the ward head and Talba. Clearly, looking at the evidence particularly the italicizing in the testimonies of the plaintiff and his witnesses, someone is not speaking the whole truth. The plaintiff said he sued Talba. Talba said he was not sued ‘but was called after the case. Talba said he did not know who bought the land before the plaintiff but he had earlier said the land had been sold. After the case at the Area Court, from whom was he given back the land?
The obvious deduction is that Talba with some agent or privy of his already sold the land to Yam, the defendant/respondent. Major Alibe wanted the same land, which happened to be behind his house as PW2 stated. Some plan to nullify the sale to Yaro was contrived. Talba then sold it to Alibe, the appellant.
I must say that whether the plan to nullify the earlier sale to the respondent by Talba succeeded is a matter for another time. For the moment however from the evidence from the side of the plaintiff I must say, that the findings of the learned trial Judge that Talba sold to both parties was inevitable and he was not in error.
I have in examining the matter, concentrated at this stage, only on the case of the plaintiff and the testimony of his witnesses, at the court below, as ought to be. For, the applicable principles are that the plaintiff must succeed or fail on the strength of his case and the evidence which he brought to court, any weakness in the defence notwithstanding. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Cobblah v. Gbeke (1947) 12 WACA 294 at 295.
I have taken that course to underscore these principles and to set the issue on the correct legal focus. For counsel for the appellant had quite erroneously, in my respectful view spent considerable part of his submissions on issue No. 1 pointing out the weakness in the respondent’s case. He submitted that the evidence of the appellant was strongly supported by PW2 and Talba PW3. That is clearly not so with regard to Talba selling to both parties. He extolled the appellant’s and his witnesses evidence, stating that in contrast was the evidence of the respondent and his witnesses. In particular, he picked on the respondent’s identification of his vendor (see pages 4 and 5 of the appellant’s brief). From what had been stated and found regarding the evidence of the plaintiff and his witnesses, it does not possess those great virtues attributed to it by learned counsel. I believe that had learned counsel for the appellant called up the principle in Kodilinye’s case (supra) he would have realised the futility in his line of argument. For, no matter how manifestly unreliable or weak the case of the defence may be, the plaintiff to succeed in his claim has the primary function of convincing the court that he has a good case. Whether a defendant adduces or does not adduce any evidence at the trial, that fundamental and primary burden which the law at the onset places on a plaintiff who wishes to succeed in his claim, remains. Umeojiako v. Ezeanamuo (1990) 1 NWLR (Pt.126) 253 at 272. If we stop this far, the appellant’s evidence and Exhibits A, B and C support the lower court’s findings.
There is appellant’s submission that the law that the party first in time has a better title applies only where both patties have established by credible evidence that they bought the same land at different times, not where the respondent led inconsistent and discreditable evidence as against the appellant’s simple and straight forward evidence and the owner testified that he sold to the appellant not to the respondent.
All that I had earlier stated have virtually answered this submission. Let me add that all that show also that the evidence of the appellant and his witnesses has not been that simple and straight forward as he claims. One clear thread ran through and that is that Talba sold to both patties, to the defendant/respondent first in 1991, and then, to the plaintiff/appellant in 1992. The equivocations and contradictions in the testimony of the plaintiff and his witnesses; were quite obvious too.
As to the evidence of the respondent and his witnesses learned counsel for the appellant picked on the respondent’s evidence as to the name of his vendor I must say that there are some substances therein. When page 11 of the records is examined, it is observed that the respondent’s vendor was called various names-”Baba Kelea” – the respondent said,
“I own the land. I bought it from Baba Kelea. Baba Kelea came with me with a paper in respect of the plot from the metropolitan.”
“Baba Talba Alkali.” He said, “He is Baba Talba Alkali.”
I know Bulama Mustapha I know Tela. It was Tela who sold the land to me not Mustapha. Bulama is the village head of the area, the custodian of the place. Tela idea of sale was led to me by Mustapha and Tela negotiated with them before payment to Tela.”
Like the rest of them i.e the plaintiff and his witnesses, no one can miss all that equivocation from the respondent, but Exhibits A, B. and C show the name of the vendor of the plot to be Talba. The learned trial Judge was therefore not wrong as the plaintiff sought to daub his findings of fact.
Based on the foregoing, it is my respectful view that it cannot be said to be “unbelievable” that the owner Talba sold the plot to both the appellant and the respondent, as was being urged for the appellant. This case does not qualify for the exceptions set out in the various authorities (supra) or those urged on us for the appellant, which would compel us to interfere with the findings of fact made by the court below. For, watching the demeanour of the parties and their witnesses, seeing and listening to them, he made his findings as the law required him to do.
In my respectful view, the findings are not perverse or unreasonable. I cannot say that they are not the result of proper exercise of judicial discretion or that they are wrong, and the appellant has not satisfied us that the findings are wrong for they are supported by the evidence on record. In the premises, issue No. 1 is answered in the positive in respondent’s favour.
The second and last issue for determination raises the question, who between the appellant and the respondent had a better title as at the time of the action in the trial High Court.
By his pleadings, the defendant had put title to the land in issue. The plaintiff, as a result, had two pronged onus facing him, proving that he was entitled to bring the claim which he initiated, and/or in the process, proving that he had a better title than the defendant.
The learned trial Judge in his judgment had decided thus:
“The defendant was on the plot before the plaintiff. It is trite law that the defendant has at (sic) earlier and better title…… The defendant was tight to have been on the land. His title is superior to that of the plaintiff.”
It is this part of the judgment that the appellant is challenging. The appellant seems to rely on the purported setting aside of the earlier sale to the respondent by the Lamisula Area Court in his assertion of better title than the respondent. On the other hand the respondent has on his side the date of the sale to him in 1991 earlier in time than the appellant’s. Respondent’s being in possession and appellant’s failure to prove the Area Court proceedings and judgment. I consider it helpful to identify the matters arising under issue No. 2 and counsel’s submission in relation thereto, with important land marks already established from the evidence already on record while dealing with issue No. 1
- It has already been determined that the learned trial Judge tightly found that Talba the land owner sold to both the appellant and the respondent but that the respondent’s title obtained on 19/7/91 as per Exhibits B and C, was earlier in time than the appellant’s which was on 18/3192 as per his Exhibit ‘A’. The Exhibits speak for themselves.
- Learned Counsel for the appellant claims the above facts notwithstanding that he has a better title. Having regard to the above finding, it is difficult to appreciate his reasons, which virtually defeat themselves. His reasons can be summarised as follows:
(i) The evidence of the appellant at page 8 lines 4-9, 22-31 shows that it was after the land was sold to the appellant he saw the respondent on the land and that the respondent was claiming that it was sold to him. That was why he sued the Ward Head and Talba before the Lamisula Area Court.
(ii) The sale of the land to respondent was nullified by the Area Court and an appeal to Upper Area Court was dismissed.
(iii) Although the proceedings were not tendered at the High Court, that was not necessary. For, the respondent was not a party to the suit and the sale of the land having been nullified, appellant was bound to treat him as a trespasser and had a right to do so.
(iv) The respondents hasty development of the land does not help his claim of being the first to buy the land and even if he was the first, he was aware that whatever right he had bought had been extinguished by the decision of the Area Court.
(v) Even if Exhibit ‘C’ established that the piece of land was sold to the respondent in 1991, that transaction had been validly set aside.
Counsel for the respondent had rightly pointed out that Exhibit “A” was not stamped, signed or witnessed by the ward head and village head of the area where the land is situate. This is evident on the face of Exhibit ‘A’ itself. There was also no “Maiduguri Metropolitan Council permit to alienate”the land in favour of the appellant as admitted by the appellant at page 9 lines 3-5. It is pointed out that these standard requirements for land transactions were fully complied with in respect of the respondent. His Exhibits “B” and “C’ were duly stamped and witnessed by the Ward/village head as shown on their faces. (see also page 11, lines 7-21 of the records). The appellant also did not conduct any search before purportedly buying the land. For, he stated at page 9 line 7:
“I did not identify who owned the land before paying the N10,000.00”
The appellant pleaded and testified before the court that the sale of the land to the respondent was set-aside by the Lamisula Area Court. It was shown earlier that the sequence of events as given in appellant’s evidence and his PW3 seem to show that it was consequent upon the purported unproved Area Court decision that the sale to him by Talba, the owner, took place in 1993. It is clearly not as submitted by his counsel. The respondent was not made a part to the alleged suit at the Area Court. It would appear that Talba Alkali, the owner of the land, as he testified was not a party. This is recorded on page 11 lines 22-25 and 30-31 of the record of proceedings. The appellant said Talba was a party to the suit. Yet, Talba said he was not. See page 10 lines 15-20. The record of the alleged proceedings and judgment of the Lamisula Area Court which the appellant’s counsel submitted and as claimed by the appellant, had set aside the sale of the land to the respondent, was not tendered in evidence by the appellant. The appellant in his brief submitted that it was not necessary to tender it because the respondent was not a party to that suit. Yet, he heavily relied on it both in his pleadings, brief before us and in his evidence in court.
The respondent on the other hand had insisted that no court validly set aside the sale of the land to him by Talba. For, neither himself nor Talba, was a party to any suit at the Area Court. As learned counsel for the respondent rightly pointed out, at the trial, the appellant’s counsel was granted an adjournment to enable him produce and tender the record of judgment. This is correct and it was at his request as shown at page 10 lines 24-25 of the records. He never produced it. The respondent was in possession of the lands. Both parties testified to this. The appellant was never in possession,
The law is quite clear on these issues raised by the parties. To maintain an action in trespass, a plaintiff must have a present possessory title Will v. Will 5 NLR 76; Wallis v. Hands (1893) 2 ch, 759 Renner v. Daboh 2 WACA 250. A defendant who is legally in possession cannot be sued in trespass. – Olawole v. Oyewale (195556) WRNLR 41. In Amakor v Obiefuna (1974) 3 SC 67 at 75, the Supreme Court held that trespass to land is actionable by the person in possession of the land. That person can sue in trespass even if he is neither the owner nor a privy or agent of the owner. See also Olowolagba v. Bakare (1998) 3 NWLR (Pt.543) 528. If it is alleged that someone in possession of land is a trespasser, the person so alleging has an onus of showing that he has a better right to possession which was disturbed. Unless that onus is discharged, the person so alleging cannot defeat the rival patty. In effect, A plaintiff who is, not in possession can defeat the defendant who is if he can prove a better title to the land than the defendant.See Ude v. Chimbo (1998) 12 NWLR (Pt.577) 169 SC; Amakor x Obiefuna (supra). .
The foregoing underscores the onus on the appellant in the face of! the respondent’s possession of the piece and parcel of land in dispute. Also acts of possession and enjoyment of land such as the respondent showed may be regarded as evidence of ownership or of right of occupancy of the piece of land in issue. See section 46 of the Evidence Act and Okechukwu v. Okafor (1961) 2 SCNLR 369 (1961) 1 All NLR 685, SC. Therefore, prima facie, the respondent who had been in possession and developed the land, would be deemed to be the owner. The opposite party has the onus to rebut that and the party here is the appellant. In the present case, has the appellant who is not in possession rebutted that and proved a better title? I think not.
The appellant who has not been in possession seems to appreciate that he has to prove better title than the respondent who has been in possession his ploy was this story about a suit in Lamisula
Area Court which he said nullified the sale to the respondent If indeed there was such a suit and sale was lawfully nullified and the appellant duly purchased the piece and parcel of land from Talba, the owner, his title would be genuine.
As things stand, the appellant did not prove the existence of that case. Neither the proceedings, judgment or order made thereunder was tendered at the trial and the learned trial Judge said so and made findings of fact based on this and other evidence before him. He could not apply any information about that case which was not proved for reasons which I will address later.
Under the first issue, it had been determined that the appellant and the respondent derived their interest from Talba who sold to both of them but that the respondent who bought his in July 1991 had better title than the appellant whose was in March, 1992. The principle of law has, always been that where two competing parties trace their title to a common grantor, the later in time must give way to the earlier one and he cannot maintain an action against the one who first obtained title or interest in the property. Tewogbade v. Obadina (1994) 4 NWLR (Pt.338) 326 at 347-348 where Iguh ISC succinctly explained the rationale of the principles thus:
“The reason is obvious as a grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of “Nemo dat quod non habet,” as no one may convey what no longer belongs to him: Boulos v. Odunsi (1958) WRLR 169; Coker v. Animashaun 1960 LLR 71; AdanuAkeya v Chief Suenu (1925) 6 NLR 87 and Egbuche v Chief Idigo 11 NLR 140 were all cited with approval.”
In the light of this, the respondent’s right is supported by the law. This would have disposed of this issue, but for the appellant’s other point. As to the submission for the appellant that the sale of the land had been nullified by the Area Court and an appeal to the Upper Area Court was dismissed, there was no evidence tendered at the lower court and we saw none in the records to establish the existence of any such proceedings, the judgment, the parties or what the suit was about. Oral evidence is inadmissible. It is trite law that proceedings and judgments of courts of law are proveable by the production of the documents or duly certified copies thereof. See sections 132(l), 96 and 97 of the Evidence Act. Thus every piece of evidence concerning the purported Area Court proceedings must be expunged from the records. Why did the appellant not produce and tender them? The inference which the law permits could be tightly drawn, is that he withheld them because they would have been unfavourable to his case. See Section 149(d) of the Evidence Act. See also Tewogbade v. Akande & Co. (1968) N ILR 404.
Failure to produce the proceedings is fatal to his case. His reason set out in his brief (supra) for not producing them, is to say the least only an attempt at drawing red herring over people’s eyes and it cannot avail him,
Learned counsel for the respondent rightly submitted that the respondent’s acts of possession coupled with Exhibit ‘C’ gave him better title. He cited the case of Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253 at 272.
One important question in this matter is this, did the appellant establish the facts necessary to prove the actual case which he brought to the court below. The authorities earlier cited, the evidence and the decision earlier reached herein show that he did not. When his title became an issue as a result of the respondent’s pleadings in which he asserted his interest in the piece of land one would have thought that the appellant would have proceeded to lead authentic evidence to prove his own title and one better than the respondent’s. This, he also failed to do and his claim must fail. See Amako v. Obiefuna (1974) 3 SC 67 at 78 per Fatayi Williams JSC.
It is in the light of this, I would answer issue No. 2 in favour of the respondent, who undoubtedly had a better title than the appellant when the suit was commenced in the court below. This appeal is indeed without merit. As the two issues for determination have been decided against the appellant so have his two grounds of appeal failed. The appeal must therefore be dismissed and it is hereby dismissed. The judgment of Adefila J. of the high Court of Justice Borno State dismissing the appellant’s suit, delivered on 23/2/95 is affirmed.
There will be N5,000.00 costs in favour of the respondent against the appellant.
OBADINA, J.C.A.: 1 have read in advance the judgment of my learned brother, Nzeako JCA just delivered. I agree with his reasoning and conclusion. The appeal is very unmeritorious and must be dismissed. I dismiss the appeal and abide by the consequential order contained in the lead judgment, including the order as to costs:—
MUKHTAR, J.C.A. I have had a preview of the judgment written by my learned brother Nzeako, JCA. The appeal lacks merit and substance and deserves to be dismissed. In this wise, I am in full agreement with the reasoning and conclusion reached in the lead judgment and also dismiss the appeal. 1 also abide by the consequential orders made in the lead judgment.
Appeal dismissed
