YELLOW v. WAKIL
(2020)LCN/15821(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, November 12, 2020
CA/G/67/2017
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
BABA GANA YELLOW APPELANT(S)
And
BABA ALI WAKIL RESPONDENT(S)
RATIO:
BURDEN OF PROOF IN A CIVIL MATTER
It is trite that being a civil matter the burden of proof is on the Respondent. See Sections 131, 132, 133, and 136(1) of the Evidence Act 2011. And particularly being a matter over land, the burden on him is heavy because he must succeed on the strength of his own case, and not rely on the weakness or perceived weakness of the defence (Appellant’s) case. See on this the following cases Aremu Vs Adetoro (2007) LPELR – 546 (SC), per Tobi JSC (P 9 paras B-D), Onyekaonwu & Ors Vs Ekwubiri & Ors (1966) LPELR – 25326 (SC) Per Bairamian, JSC (p3, para A), Agbeje & Ors Vs Ajibola & Ors (2002) LPELR – 237 (SC) Per Iguh, JSC (P16, paras D-F), NAF & Anor Vs Adamu (2018) LPELR – 44369 (CA) Per Adefope- Okojie JCA (pp 19 – 20, paras E – C). JAMES GAMBO ABUNDAGA, J.C.A.
EVIDENCE ADMITTED NEEDS NO FURTHER PROOF
The law is settled that what is admitted needs no further proof. See Ndukwe Vs LPDC & Anor (2007) LPELR – 1978 (SC), Per Obguagu, JSC (P 64, paras C-D), Anika Vs Diamond Bank Plc (2014) LPELR – 23981 (CA), Per Aboki, JCA (p 16, para C), Ben Vs Nigeria Social Insurance Trust Fund (2013) LPELR – 24203 (CA), Per Sankey, JCA (p.50, paras D-D). JAMES GAMBO ABUNDAGA, J.C.A.
BURDEN OF PROOF
It is trite that the burden of proof in a civil matter is on the plaintiff. However, the burden is not static. It shifts. Section 133(1) and (2) of the Evidence Act, 2011 is instructive:
“133(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings”.
(2) if the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
See Haruna III Vs Karaye & ors (2010) LPELR – 9069 (CA) at p35 paras B-C). JAMES GAMBO ABUNDAGA, J.C.A.
WHO IS A BONAFIDE PURCHASER FOR VALUE?
This was explained in the case of Alhaja Juradat Animashaun Vs G.A Olojo (1990) LPELR – 419 (SC), Per Obaseki, JSC (p. 17, paras B-E). In the case of Best (Nig) Ltd Vs Blackwood Hodge (Nig) Ltd & Anor (2011) LPELR – 776 (SC), it was held: “A bonafide purchaser for value is one who has purchased property for valuable consideration without notice of any prior right or title which if upheld will derogate from the title which he has purported to acquire” Per Fabiyi JSC (p28, paras D-E). JAMES GAMBO ABUNDAGA, J.C.A.
DUTY OF THE APPELLATE COURT ON THE DECISION REACHED BY THE LOWER COURT
This is because the law is trite that an appellate Court is more concerned with whether the decision reached by the lower Court is correct, and not necessarily whether a wrong reason was given in reaching a right decision. If the decision is right, it will be upheld, notwithstanding the fact that a wrong reason was given for the decision. It is only where the misdirection has caused the Court to come to a wrong decision that it would be material – MTN Communication Ltd V Corporate Communication Investment Ltd (2019) LPELR-47042(SC) 18-19, F-B, per Kekere-Ekun, JSC; Ugo-Ngadi V FRN (2018) LPELR-43903(SC) 20-21, E-B, per Galinje. JSC. JUMMAI HANNATU SANKEY, J.C.A.
LEGAL EFFECT OF THE MAXIM NEMO DAT QUOD NON HABET
This is expressed in the latin maxim of nemo dat quod non habet.
The maxim is most applicable where a party who does not have something purports to sell it Egbuta Vs Onuna (2007) 10 NWLR pt 1042 pg 298, Owena Bank Plc Vs Olatunji (2002) 12 NWLR pt 781 pg 259, Olagunju Vs Yahaya (2004) 11 NWLR pt 883 pg 24.
The doctrine nemo dat quod non habet is to the effect that a person cannot give what he does not have. Therefore, a vendor cannot subsequently sell land, which he already sold to another. Adeagbo Vs Williams (1998) 2 NWLR pt 536 pg 120. Yusuf Vs Matthew (1999) 13 NWLR pt 633 pg 30. Adesanya Vs Aderonmu (2000) 6 SC pt II pg 18 Elema Vs Akenzua (2000) 6 SC pt III pg 26. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Borno State High Court delivered by Hon. Justice Ali Kwajaffa on 30th June, 2014 in Suit No. M/119/2014.
The Respondent who was the plaintiff at the trial Court instituted the suit vide a writ of summons endorsed with a statement of claim in which he claimed against the defendant/Appellant the following reliefs:
1. A declaration that the plaintiff having purchased the land in dispute is entitled to the rights and interest in and over the land covered by the Certificate of Occupancy No. BO/16507.
2. General Damages for trespass in the sum of N500,000.00.
3. An injunction restraining the defendant by himself, agent’s, privies, servants and or representatives from further and or continuing the trespass.
4. The cost of this suit
The defendant/Appellant filed a statement of defence which was later amended. In the amended statement of defence the defendant/Appellant denied the plaintiff’s/Respondent’s claims in toto, and urged that same be dismissed for lacking in merit.
The plaintiff/Respondent filed a reply to the statement of defence.
Pleadings thus fully exchanged the case proceeded to trial at which the plaintiff/Respondent gave evidence and called one witness. He also tendered four documents which were admitted in evidence and marked as exhibits. The defendant/Appellant also testified in his defence and called one witness. He tendered two documents which were admitted in evidence as exhibits.
On the close of evidence, the parties through their respective counsel filed counsel’s final written addresses.
In a considered judgment delivered on 30th June, 2014 the trial judge found for the plaintiff/Respondent as claimed in paragraph 13(1) & (3) of his statement of claim.
Not satisfied with the judgment, the defendant appealed same by filing a notice of appeal on 18th August, 2014. The notice of appeal contains four grounds of appeal inclusive of the Omnibus ground of appeal.
The record of appeal was duly compiled and transmitted, parties through counsel filed and exchanged their briefs of argument.
The Appellant’s brief of argument, settled by Zanna Hamza was filed on 15th March 2018.
On 4th March, 2019 the Respondent’s brief of argument settled by Nankham Ayuba Dammo was filed. The said Respondent’s brief of argument obviously filed out of time, was on the grant of the Respondent’s application for enlargement of time to file same out of time was deemed duly filed and served on 6th May, 2019.
Also on 4th March, 2019, the Respondent filed a notice of preliminary objection predicated on four (4) grounds. Arguments in support of the preliminary objection were incorporated in the Respondent’s brief of argument at pages 2-4 (para 3.00-4.00).
On 14th June, 2019, the Appellant filed a reply brief of argument, which was deemed properly filed and served on 17th October, 2019.
The reply brief was filed in response to issues considered to be new in the Respondent’s brief of argument by the Appellant. At the hearing of the appeal on 17th September, 2020, D. Saleh, who represented the Respondent moved the Respondent’s notice of preliminary objection and adopted the arguments canvassed in the Respondent’s brief of argument in support of the notice of preliminary objection, and urged the Court to strike out the appeal. The Appellant’s counsel urged nothing in answer to the notice of preliminary objection having filed no process, so counsel informed the Court.
In relation to the substantive appeal, Yusuf Abubakar, who held the brief of Y.Z. Ashemi for the Appellant, adopted the Appellant’s brief of argument. He did same for the Appellant’s reply brief in urging the Court to allow the appeal and set aside the judgment of the lower Court.
D. Saleh who represented the Respondent also adopted the Respondents brief of argument in urging the Court to dismiss the appeal and affirm the judgment of the lower Court.
The notice of preliminary objection seeks to terminate the appeal in limine. Therefore; it takes priority in the determination of the appeal. The grounds upon which the preliminary objection is predicated are:
1. The appeal is incompetent.
2. The issues formulated and argued in the Appellant’s brief of argument are incompetent.
3. The issues formulated and argued by the Appellant in his Appellant’s brief of argument are not distilled from his grounds of appeal
4. The Appellant in his brief of argument did not link the issues formulated to his grounds of appeal and the Court is to rely on the issues formulated.
It seems to me that Yusuf Abubakar who represented the Appellant at the hearing of the appeal was in some kind of confusion as regards the preliminary objection. He told the Court that the Appellant filed no process in opposition to the notice of preliminary objection, and adopted the Appellant’s reply brief only in support of the substantive appeal. However, going through the Appellant’s reply brief, it is clear that the arguments canvassed therein are in response to the issues raised in support of the Respondent’s notice of preliminary objection. Therefore in doing substantial justice the reply brief of the Appellant will be considered in the determination of the Respondent’s notice of preliminary objection. In the desire to do substantial justice, the Court would still be entitled to consider the notice of preliminary objection on its merit even if the Appellant filed no process in answer to the Respondent’s argument in support of the notice of preliminary objection.
Even though there are four grounds upon which the notice of preliminary objection is predicated, in actual sense, the grounds are two;
They are
1. That the issues are not distilled from the grounds of appeal.
2. That the issues are not tied to the grounds of appeal.
I will consider them together.
It is submitted for the Respondent that the law is that issues formulated for determination must emanate from the grounds of appeal. On this, counsel relies on Aja vs. Okolo (1991) 7 NWLR (pt 203) 260 at 272-273 and 277.
Also for the submission that issues that are not tied to the grounds of appeal will not be countenanced, reliance is placed on the cases of Ibator Vs Barakuro (2007) 9 NWLR (pt 1040) p.u) 5 at 503, and UTB (Nig) Ltd Vs. Ajagbule (2006) 2 NWLR (pt 965) 447 at 472. It is therefore contended that the two issues formulated by the Appellant do not arise from any of the grounds of appeal. Further submitted is that the two issues are not tied or linked to any of the grounds of appeal. Counsel therefore submits that the two issues are incompetent and therefore leaves the appeal without issues for determination. That the appeal is thus rendered incompetent. We are therefore urged to dismiss the appeal. I hasten to state here that even if it is found that the appeal is incompetent, the law is trite and needs no over flogging that the right order to make in the circumstance will be an order of striking out and not dismissal. See Hon. Abawu James Watharda Vs Governor Adamawa State & Ors (2016) LPELR – 43002 (CA), Per Hussaini JCA (pp. 28-33, para F-B), Okafor & Anor Vs Hashim & Ors (2000) LPELR – 5451 (CA), Per Bulkachuwa, JCA (pp 13 – 14, para E – A). Leonard Okoye & Ors Vs Nigerian Construction & Furniture Co. Ltd & Ors (1991) LPELR– 2509 (SC), Per Akpata, JSC (p. 41 paras B-E).
For the Appellant, counsel agrees that the principle of law applicable as to issues for determination arising from the grounds of appeal is as cited by the Respondent. However, he submits that the two issues for determination emanate from the grounds of appeal. He went further to state that issue one is distilled from ground two while issue two is distilled from ground four. It is expected that the Appellant ought to tie his issues to the ground of appeal in his brief and not to wait for the platform of preliminary objection before he ties or links the issues to the grounds of appeal as he had done in this case.
The position of the law is that issues not tied to the grounds are irrelevant and are liable to be struck out or discountenanced. See Registered Trustees of the Church of God Mission International Inc Vs Pedro Edema & Anor (2019) LPELR – 47200 (CA) Per Adumein, JCA (pp 8-9, para C-A), Ibrahim Abubakar Waziri Vs APC & Ors (2019) LPELR – 47409 (CA) Per Bayero, JCA (P.30, para A-E), Prince Amos Adebolu Adewuyi & Anor Vs Mrs Oil Nig Plc (2019) LPELR – 48210 (CA), per Danjuma, JCA (pp 11-12, paras C-A).
However, in the case of Diamond Bank Plc Vs HRH Eze (Dr) Opara & Ors (2018) LPELR – 43907 (SC), the apex Court held inter alia;
“…However, not tying issues to the grounds of appeal is a mere inelegance, which cannot render the issue to be incompetent and struck out. This Court in UBN Ltd Vs Odusote Book Stores Ltd (1995) NWLR (pt 421) at 563 held thus: “While it is true that the rules as regards filing of brief of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to the grounds of appeal they are related, thus saving the time of the Court and enhancing quick disposal of the appeal.”
The position therefore is that issues formulated for determination cannot be discountenanced merely because they are not tied to the grounds of appeal. This position to my mind is good. Apart from this being the position of the Supreme Court with which I am bound, it seeks to do substantial justice without sacrificing same on the altar of technicality.
The only potent argument in the notice of preliminary objection is whether the issues do not emanate from the grounds of appeal.
Issue one is thus couched:
“Whether the plaintiff has proven through conclusive evidence that he is the sole owner of the whole land covered by the certificate of occupancy No. BO/16507 whom (sic) he claimed amidst material contradictions.”
Ground 2 from which the issue is distilled reads:
“The learned trial judge erred in law when he failed to properly evaluate the evidence and this (Sic) has occasioned a miscarriage of justice”
I have read the arguments proffered on issue one. I am unable to agree with the Respondent that issue one does not emanate from ground two of the appeal.
ISSUE TWO IS THUS:
“Whether the burden of proving the ownership of the whole land is on the plaintiff” (Distilled from Grounds 1. 3 and 4).
The said grounds 1, 3, and 4 are hereunder produced:
1. “The learned trial judge erred in law when he held that the doctrine of priority is applicable and it operates in favour of the plaintiff.”
3. “The learned trial Court judge erred in law when he held that as at the time when Dw2 sold the half portion to the defendant/Appellant, he Dw2 have (Sic) divested his whole interest on the land.”
4. “The judgment is against the weight of evidence.”
The argument of both counsel calls for a proper understanding of the said issue two and the arguments canvassed on it. In discharging that onus, I took upon myself the task of reading the arguments and properly digesting same.
That done, I can come to no conclusion other than that the said issue two emanates from grounds 1, 3, and 4 of the grounds of appeal.
This leads me to the conclusion that the Respondent’s contention that the two issues do not emanate from the grounds of appeal lacks substance.
The preliminary objection therefore lacks merit and is hereby dismissed.
The dismissal of the preliminary objection ushers me into the determination of the substantive appeal.
The Appellant distilled two issues for determination which the Respondent adopted. The two issues are:
1. “Whether the plaintiff has proved through conclusive evidence that he is the sole owner of the whole land covered by the certificate of occupancy No. BO/16509 whom (sic) he claimed amidst material contradictions. (Distilled from Ground 2)
2. Whether the burden of proving ownership of the whole land is on the plaintiff.” (Distilled from grounds 1, 3, and 4)
In my view, issue one is wide enough to cover issue two also, and to exhaustively determine this appeal. Therefore, I adopt the said issue one with slight modification for the determination of this appeal.
For avoidance of doubt, the issue for determination is:
“Whether the Respondent has proved his entitlement to the whole land covered by the certificate of occupancy No. BO/16507 to justify the judgment of the lower Court in his favour.”
ARGUMENT OF APPELLANT’S COUNSEL ON THE SOLE ISSUE
It is contended for the Appellant that the Respondent did not adduce conclusive evidence to prove that he bought the whole land and not just a portion of it from Isa Sanda Benesheik. That the failure of the Respondent to fence a portion of the land in dispute by the plaintiff/Respondent is another fact that proves that he did not actually purchase the whole land. Counsel refers us to the evidence of Pw1 and Pw2 at pages 30, 31, 33 and 34 of the record of appeal.
Counsel submits that the principle of law establishes that the burden of proof lies with the plaintiff/respondent who stands to fail if no evidence is adduced. Reliance is placed on the case of Kupolati Vs MTN Communication (Nig) Ltd (2016) All FWLR (pt 847) 465 at – 467 – 468, and the case of F.I.B Plc Vs Z. V & Co (Nig) Ltd (2016) All FWLR (pt 814) at 6-7. It is therefore submitted that the trial judge erred by failing to allow the plaintiff/respondent to establish that he bought the whole land and not a portion of it. Counsel refers to evidence of Dw2 who testified that he sold only a portion of the land to the Plaintiff/Respondent. He faults the findings of the Court that since both the parties trace their claim to the land to the same source, the first in time prevails. That the Respondent did not even establish that he got lawful ownership of the land. Counsel therefore urged this Court to allow the appeal and set aside the judgment of the lower Court.
RESPONDENT’S ARGUMENT ON THE SOLE ISSUE
For the Respondent, it is contended that there are five ways accepted in law by which title to land can be proved. Cases cited on the point are:- Salisu Vs Mobolaji (2016) 15 NWLR (pt 1535) p. 242 at 247, Kwanni Vs Marafa ( 2017) 8 NWLR (pt 1566) at 15, Idundun Vs Okumagba (1976) 1 NWLR (pt 200) at 210 – 211, Maigari Vs Mailafiya (2011) 1 NWLR (pt 1228) 379.
One of the five ways, counsel submits is the production of documents of title. That in this appeal, Respondent proved his title through exhibits A, B, C and D. Counsel contends that the Respondent having prima facie established his title to the land covered by certificate of occupancy No. BO/16507, the Appellant now has the burden of proving his entitlement to the part of the land he claims.
That the Appellant however failed to substantiate his claim through the evidence of Dw2 that he called, whose evidence, Respondent’s counsel submits was discredited under cross examination. That DW2 failed to produce evidence of his claim that he sold half each of the land to the Appellant and the Respondent’s predecessor-in-title. That the Appellant having failed to establish by credible evidence his entitlement to the portion he claimed to have bought from Dw2, the lower Court was right to have entered judgment for the Respondent.
It is further submitted for the Respondent that where both parties traced their claim to title to the same source, the first in time in prevails. Counsel relies on Oluwole Vs Abubakare (2004) 10 NWLR (pt 882) 549 at 567, Alabi Vs Doherty (2005) 18 NWLR (pt 957) 411 at 433, Gege vs Nande (2006) 10 NWLR (pt 988) 256 at 284 and 285.
Further submitted for the Respondent is that a party who has divested his interest in the land has no title left to pass to another and is therefore caught up by the doctrine of “nemo dat quod non habet.” Reliance is placed on Ashiru Vs Olukoya (2006) 11 NWLR (pt 990) p.1., Omiyale Vs Macaulay (2009) 7 NWLR (pt 1141) 597 at 618, 625 and 626.
Counsel points out that Dw2 having earlier sold the land in dispute to Pw1 (Mohammed Ali Groma) and having handed over the title documents to him, lacked the title to pass to the Appellant either in whole or part.
Counsel submits that contrary to the Appellant’s contention that the Respondent did not prove his claim to the entire land, he did through the exhibits he tendered (exhibits A, B, C and D) and the evidence called on those exhibits.
It is therefore submitted for the Respondent that the Respondent proved his claim on the strength of the documentary evidence led before the Court, and also urged that the issue be resolved in the Respondent’s favour.
RESOLUTION
It is trite that being a civil matter the burden of proof is on the Respondent. See Sections 131, 132, 133, and 136(1) of the Evidence Act 2011. And particularly being a matter over land, the burden on him is heavy because he must succeed on the strength of his own case, and not rely on the weakness or perceived weakness of the defence (Appellant’s) case. See on this the following cases Aremu Vs Adetoro (2007) LPELR – 546 (SC), per Tobi JSC (P 9 paras B-D), Onyekaonwu & Ors Vs Ekwubiri & Ors (1966) LPELR – 25326 (SC) Per Bairamian, JSC (p3, para A), Agbeje & Ors Vs Ajibola & Ors (2002) LPELR – 237 (SC) Per Iguh, JSC (P16, paras D-F), NAF & Anor Vs Adamu (2018) LPELR – 44369 (CA) Per Adefope- Okojie JCA (pp 19 – 20, paras E – C).
In proof of his claim the Respondent gave evidence and called one witness. He also tendered four exhibits, viz exhibits A, B, C and D.
1. Exhibit A is the certificate of occupancy No. BO/16507, granted to Sanda Isa Benisheik. Annexed to it is a survey plan.
2. Exhibit B is the sale’s agreement between the Respondent and his vendor Mohammed Ali Chiroma for the sale of land covered by certificate of occupancy No. BO/16507 at GRA Maiduguri.
3. Exhibit C is the CTC of the proceedings in suit No. M/119/04 between Baba Ali Wakil and Baba Gana Yello before High Court of Borno State holden at Maiduguri before Justice J. Muhammad who withdrew from hearing the case as a result of alleged bias by the defendant (Appellant herein)
4. Exhibit D is the affidavit of loss of documents, viz, sales agreement between Isa Benesheik and Mohammed Ali Chiroma over a plot of land covered by certificate of occupancy No. BO/16507, sales agreement between Mohammed Chiroma and Baba Ali Wakil over a plot of land covered by certificate of occupancy No. BO/16507, at GRA Maiduguri.
The Respondent at the lower Court pleaded and adduced evidence to the fact that he bought the land covered by exhibit A from Mohammed Ali Chiroma, who himself purchased the land from Sanda Isa Benesheik.
In proof thereof, he was given the title documents being the sale agreement between the former holder of the rights and interests in the land together with the certificate of occupancy No. BO/16507. That he however lost the agreement between himself and Mohammed Ali Chiroma and the one between Mohammed Ali Chiroma and Sanda Benesheikh and had to swear to an affidavit of loss of the documents upon making a report to the police and obtaining an abstract of the report. That affidavit is what is in evidence as exhibit D. Mohammed Ali Chiroma who testified for the Respondent corroborated this story and was unequivocal even under cross examination that Sanda Beneisheikh sold the whole land covered by certificate of occupancy No. BO/16507 to him which he in turn sold to the Respondent.
The vendor of the Appellant, Barrister Isa Sanda Beneisheik did not deny selling the land covered by certificate of occupancy No. BO/16507 to Mohammed Ali Chiroma. However, he contended that he only sold part of the land to him, and that at the time of the sale he had not procured the certificate of occupancy No. BO/16507, but that it was surreptitiously collected without his knowledge.
From the above, one point is clear; that is, that the Appellant has admitted selling the land covered by certificate of occupancy No. BO/16507 to Mohammed Ali Chiroma, who has categorically admitted selling it to the Respondent. The law is settled that what is admitted needs no further proof. See Ndukwe Vs LPDC & Anor (2007) LPELR – 1978 (SC), Per Obguagu, JSC (P 64, paras C-D), Anika Vs Diamond Bank Plc (2014) LPELR – 23981 (CA), Per Aboki, JCA (p 16, para C), Ben Vs Nigeria Social Insurance Trust Fund (2013) LPELR – 24203 (CA), Per Sankey, JCA (p.50, paras D-D).
It has been contended by the Appellant that the Respondent did not prove sale of the land covered by certificate of occupancy No. BO/16507. Having admitted the sale of the land to Mohammed Ali Chiroma, the Respondent’s vendor, it no longer lies in the mouth of the Appellant to contend that the Respondent did not establish sale of the land to him. I find in this appeal that the land covered by certificate of occupancy No. BO/16507 was proved to have been sold to the Respondent.
Therefore from the record before the Court, the sale of the land covered by exhibit A to the Respondent has ceased to be a live issue.
What is however a live issue is whether the whole or only a part of the land was sold to the Respondent.
The evidence of the Respondent is that the whole of the land covered by exhibit “A” was sold to him. His vendor Mohammed Ali Chiroma confirmed this.
For the purpose of determining this issue, it may prove useful to consider the contention of the Appellant’s vendor that he did not surrender the certificate of occupancy No. BO/16507 at the time of sale of the land to Mohammed Ali Chiroma because at the time of the transaction it was not ready. It is instructive to consider the pleadings and evidence of the parties on this.
Paragraph 3 of the Respondent’s statement of claim states;
“The plaintiff states that on the 29th day of July, 2003, the plaintiff bought the land covered (sic) the certificate of occupancy No. BO/16507 from Mohammed Ali Chiroma of the African Petroleum Plc at the purchase price of N1,200,000.00 (One Million Two hundred Thousand Naira) only, and a purchase agreement was entered into between the said Mohammed Ali Chiroma and the plaintiff.”
Paragraph 4 States:
“Following the payment of the purchase prize to the said Mohammed Ali Chiroma, he handed over the purchase agreement, titled Sale agreement, entered into between the former holder of the rights and interests in the land, Sanda Isa Benishiek and himself, to the plaintiff, together with certificate of occupancy no BO/16507 including the Survey Plan of the Land and also the sale agreement entered between the said Mohammed Ali Chiroma and the plaintiff”.
In relation to the Appellant’s claim through Dw2 that he did not give the certificate of occupancy No. BO/16507 (exhibit “A”) to Mohammed Ali Chiroma, he pleaded thus at paragraphs 3(e) and 3(i):
Para “3(e). Isa Sanda Benesheik did not hand over the Certificate of Occupancy No. BO/16507 as he (Isa Sanda Benesheik) did not sell the entire plot to Bomai Ali Chiroma, and the Certificate of Occupancy was not ready for collection at the time of the transaction”.
Para. “3(i). If any Certificate of Occupancy over the entire land is in the possession of the plaintiff, it must have been surreptitiously obtained without the knowledge of the said Isa Sanda Beneisheik or Sanda Isa Benesheik”.
In response to the Appellants averments aforestated, the Respondent pleaded thus in paragraph 2(ii) of the Respondent’s reply to the statement of defence:
ii. “That following the sale of the land to the said Mohammed Ali Chiroma, the said Isa Sanda Benishiek told Mohammed Ali Chiroma that the certificate of occupancy was not ready as he has yet to follow it up. He then advised Mohammed Ali Chiroma that he could follow up the certificate of occupancy and get it, having now purchased the land and could perfect a deed of assignment to that effect, which the said Mohammed Ali Chiroma did and got the certificate of occupancy no. BO/16507”.
However, under cross examination, Mohammed Ali Chiroma as Pw1 told the Court, inter-alia:
“……When they transacted with Sanda Bene sheikh the certificate of occupancy was ready. After the transaction exhibit “A” was handed (sic) over to me through my brother.” (See line 19-23 at page 32 of the record of appeal).
However, down the line at lines 25-27 at page 32 of the record of appeal, Pw1 did a somersault (see page 50) by testifying as follows:
“………Mammadu did not tell me that the certificate of occupancy was not ready. Yes Isa Sanda Benesheik did not hand over exhibit “A” to me. Yes, at the time of the transaction exhibit “A” was not ready.”
Now, having pleaded that the certificate of occupancy was not ready at the time of the transaction and that it was agreed between them, that Mohammed Ali Chiroma could follow up the certificate of occupancy and get it since he had purchased the land and could perfect a deed of assignment to that effect which the said Mohammed Ali Chiroma did and got the certificate of occupancy, one would expect the evidence of the said Mohammed Ali Chiroma to be in tandem with this pleading, but instead we have a situation in which at a point in his evidence under cross examination he said the certificate of occupancy was ready at the time of the transaction and at another time he said it was not ready. With this inconsistency I find it difficult to credit him the status of a credible witness as far as this issue is concerned.
I want to also consider the evidence of the Respondent who testified as Pw2 on this issue. He stated thus at page 33, lines 18 -20 of the record of appeal.
“…..At the end of the sale Pw1 handed over to me the certificate of occupancy and the agreement between him and Isa Sanda Benesheikh.”
Further down the line, he told the Court at page 33, lines 7 – 8 of the record.
“….It is not my business to know how my vendor had the certificate of occupancy. I am not aware.”
It is obvious to me that the Respondent was not privy to what transpired between the Respondent and Barrister Isa Sanda Benesheik who became owner of the land through devolution of same to him by his father. It is therefore not a surprise that he might not know first hand how his vendor Mohammed Ali Chiroma came to possess the certificate of occupancy (exhibit “A”). But what is obvious from the record is that when he purchased the land from his vendor he was handed both exhibit “A” and the sale agreement between his vendor, Mohammed Ali Chiroma and Isa Sanda Benesheik. I will come to the issue whether he acquired a good title to the whole of the land covered by exhibit “A” later.
Let me turn my search light to the Appellant’s Vendor, Isa Sanda Benesheik. I have noticed that in the appellants pleading (statement of defence) he avoided either on purpose or inadvertence stating date for events he averred to.
He did not state when he sold the portion of the land to “Bomai Ali Chiroma” hereafter and before referred to as Mohammed Ali Chiroma. He did not state when he sold the remaining portion to the Appellant. For the Appellant it was averred in paragraph 3(i) of the statement of defence that if any certificate of occupancy over the entire land is in the possession of the Plaintiff/Respondent it must have been surreptitiously obtained without his knowledge. Dw2 did not also plead when he discovered that the certificate of occupancy was collected or, as in his own words “surreptitiously obtained without his knowledge”.
In his evidence, Dw2 stated that to his surprise when he went to collect the certificate of occupancy after he had sold the remaining portion of the land he learned that it was collected without his knowledge.
Now, it is common ground between Mohammed Ali Chiroma and Isa Sanda Benesheik that at the time of the transaction between them the certificate of occupancy was not ready. While Mohammed Ali Chiroma claims that it was agreed between them that Mohammed Ali Chiroma should follow up on the certificate of Occupancy and collect it when it was ready, Isa Sanda Benesheikh is mute about that. Is that to suggest that as claimed by Isa Sanda Benesheikh that he sold only a portion to Mohammed Ali Chiroma, he was not to take possession of that portion until he found a buyer for the other portion?
This poser becomes pertinent in view of his evidence that when he went to collect the certificate after he had sold the remaining portion and wanted to apply for part surrender, he learnt that the certificate of occupancy had been collected.
If indeed, a certificate of occupancy he applied for over his own land which he had processed was handed to another person without his knowledge, that was clearly a fraudulent act. Did he do anything? As a lawyer, did it not occur to him what a person armed with a certificate of occupancy of another person could do with it? In this case he had entered into agreement in writing with Mohammed Ali Chiroma for the sale of the land. And of course, if it was at the Ministry of Land where he was processing the certificate of occupancy that he learnt that the certificate of occupancy was collected, he must have been told that it was collected by Mohammed Ali Chiroma, to whom as claimed by him, he had sold only a portion of the land to. So, Dw2, a lawyer did not find necessary to lodge a complaint at the appropriate Ministry or to the Police?
In order to arrive at the root of this issue, I have scanned through the file of the land in the Ministry of Land and Survey tendered by the Appellant.
Page 25 of the file (exhibit “F”) shows that as at 14th November, 1999, the certificate of occupancy was ready for collection. The same page shows that on 15th November, 1999, the relevant authority authorized its release to the person entitled, and this should be no other person than the land owner who applied for it (in this case, Isa Sanda Benesheik). However, page 26 of the file shows that on 9th April 2001, Mohammed Bomai Ali Chiroma, who described himself as the purchaser, signed and collected the said certificate. Page 28 is an application made by Isa Benesheik titled “Application for Subdivision and consent to Assign certificate of occupancy no. BO/16507”.
This shows that as at 19th February 2004 when he made this application he was aware that the certificate of occupancy had been collected by Mohammed Ali Chiroma, and this was more than about 2 years after the certificate had been collected. Does it now lie in the mouth of DW2 to say that the certificate was collected without his knowledge? Now, consider this, both the Appellant and the Respondent pleaded that at the time the sale between Mohammed Ali Chiroma and Isa Sanda Benesheik took place, the certificate of occupancy was not ready. This certificate was ready as at 15th November, 1999. That suggests the likelihood of the transaction between Mohammed Ali Chiroma and Isa Benesheik taking place on or about 1999.
So far, it has not been stated how much of the land covered by exhibit “A” was sold to Mohammed Ali Chiroma by Isa Sanda Benesheik since he said it was not all of it that was sold. The burden is on the Appellant, through his vendor who claims that he did not sell the whole of the land covered by exhibit A to prove how much of it was sold to the said Mohammed Ali Chiroma, or was it expected that, having purchased the land Mohammed Ali Chiroma would not take possession until when Isa Sanda Benesheik decided to apply for part surrender, as he did only in 2004?
All these lead me to the conclusion that Dw2 (Isa Sanda Benesheik) authorized Mohammed Ali Chiroma to follow up the certificate of occupancy, or that he knew that Mohammed Ali Chiroma followed up the certificate of occupancy and collected it, and he decided to do nothing about it since he knew that he had sold the whole land to him.
Like I did state elsewhere in this judgment, it is trite that the burden of proof in a civil matter is on the plaintiff. However, the burden is not static. It shifts. Section 133(1) and (2) of the Evidence Act, 2011 is instructive:
“133(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings”.
(2) if the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
See Haruna III Vs Karaye & ors (2010) LPELR – 9069 (CA) at p35 paras B-C).
The Respondent has by his evidence and documents tendered in evidence (exhibits A, B, C and D) proved that he purchased the land from Mohammed Ali Chiroma, who himself purchased it from Isa Sanda Benesheik. Isa Sanda Beneshek did not deny selling the land covered by exhibit “A” to Mohammed Ali Chiroma. His only defence to this is that he only sold a portion to him, and denies giving the certificate of occupancy (exhibit “A”) to him. The burden of proof shifts to him to prove that the Respondent’s possession of exhibit A was unlawful. To my mind the Appellant has failed in that bid. I have given reasons for my belief already in this judgment. In addition I will further reiterate that throughout the Appellants’ pleading and evidence he had failed to show how much of the land covered by exhibit “A” was sold to Mohammed Ali Chiroma, the Respondent’s vendor. The claim that the said Ali Chiroma only fenced a portion that was sold to him is not sufficient proof. After all, it is not unusual for a person to do several things on different portions of his land at different times.
The Appellant pleaded in paragraph (3) of his statement of defence that his vendor Isa Sanda Benesheik applied in 2004 to the Commissioner of Lands and survey to convey approval for the subdivision of certificate No. BO/16507 and also for consent to assign same in favour of the defendant and the said Bomai Ali Chiroma. He pleaded the letter dated 19th February, 2004.
This letter was not tendered through any witness who could be cross examined on it. However the file pertaining to this land in the Ministry of Lands and Survey was on the application of the Appellant, vide a subpoena, produced before the Court through a staff of the Ministry who did not testify.
However, being a document before the Court, which the Court is entitled to look at in resolving the issues before the Court, I went through the file. The application pleaded, dated 19th February, 2004 is on page 28 of the said file This application was made about 3 years after the collection of the certificate (exhibit A) by Mohammed Ali Chiroma, which Isa Sanda Benesheikh (the author of the application) claimed he knew nothing about. Yet he did not protest nor make any complaint about it on his discovery of its collection. As I earlier drew my own inference, he did nothing because he either authorized the said Mohammed Ali Chiroma to collect the certificate or he saw nothing wrong with it being in Mohammed Ali Chiroma’s possession since he had sold the land to him. Mohammed Ali Chiroma sold the land to the Respondent on the strength of his possession of this certificate and the agreement between him and Isa Sanda Benesheik, who did not tender a copy of his own agreement with Mohammed Ali Chiroma to show that only a portion of the land covered by exhibit “A” was sold out to Mohammed Ali Chiroma.
In his evidence, as DW2, Isa Sanda Benesheikh told the Court that he sold only a portion of the land to Mohammed Ali Chiroma but that no agreement was written even though payment for the sale was made. He however said he gave him an acknowledgement only for the portion he sold, because he had applied for the certificate of occupancy which has not been approved. He however did not tender his own copy of the acknowledgement, or he wants the Court to believe that as a lawyer he did not retain a copy of the acknowledgement; having admitted under cross-examination that they signed an acknowledgement? What better way could he have proved that, first, Mohammed Ali Chiroma unlawfully collected the certificate of occupancy which only he was entitled to collect? Secondly, the said acknowledgement would have resolved the issue whether only a portion or the whole land covered by exhibit A was sold by him to Mohammed Ali Chiroma. This is proper situation in which Section 167(d) of the Evidence Act, 2011 can be invoked against him.
In the case of Hani Akar Enterprises Ltd Vs INDO (Nig) Merchant Bank Ltd (2010) LPELR – 4229 (CA), it was held:
“……Section 149 (d) (Now 167(d) of the Evidence Act 2011), evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.” Per Okoro JCA (p. 31) paras B-C). See also PPA Vs PDP & Ors (2009) LPELR – 4865 (CA), Per Ariwola, JCA (p.56 paras A-D).
The Appellant’s vendor has in my view failed to rebut the presumption that it was the whole of land in exhibit A that was sold to Mohammed Ali Chiroma, the Respondent’s vendor. In other words, there is no doubt in my mind that the Appellant’s vendor sold all the land covered by exhibit A to Mohammed Ali Chiroma.
In my humble view his application for subdivision of certificate of occupancy (exhibit “A”) and consent to assign was calculated to deceive the unsuspecting Appellant.
I now return to the issue I earlier posed, whether the Respondent acquired a good title to the land. Why not, regardless of whether or not Isa Sanda Benesheikh impliedly consented to the collection of the certificate of occupancy, on which strength, together with the agreement between Mohammed Ali Chiroma and Isa Sanda Beneisheik, the whole of the land was sold to him and he was let into immediate possession. He therefore qualifies as a bonafide purchaser for value without notice. This was explained in the case of Alhaja Juradat Animashaun Vs G.A Olojo (1990) LPELR – 419 (SC), Per Obaseki, JSC (p. 17, paras B-E). In the case of Best (Nig) Ltd Vs Blackwood Hodge (Nig) Ltd & Anor (2011) LPELR – 776 (SC), it was held: “A bonafide purchaser for value is one who has purchased property for valuable consideration without notice of any prior right or title which if upheld will derogate from the title which he has purported to acquire” Per Fabiyi JSC (p28, paras D-E).
I have no doubt that the Respondent proved his claims to be entitled to the judgment of the Court.
Learned counsel to the Appellant also argued in faulting the finding of the Court that since both parties are contending the same land the first in time prevails. In his submission, the plaintiff/respondent did not even establish that he got lawful ownership, therefore, the issue of who is the first in time does not even arise.
On whether the plaintiff/respondent proves his entitlement to the land, I have already found that he did.
However, from the pleading and evidence before the Court, the contention between the Appellant and the Respondent is not squarely that of priority of interest. For the principle of priority of interest to apply it must not only be shown that the parties have common grantor but that a common or the same land was granted to them. See the case of Kholabe Consolidated Nigeria Ltd Vs Suleiman Dauda (2020) LPELR – 49960 (CA), per Ekanem, JCA (pp 16 – 18, paras E-B). Though the Appellant and Respondent in this appeal traced their title to a common root, that root did not admit granting the whole of the land in dispute to the Respondent but contended that he granted only a portion of the land to the Respondent. That portion is not in dispute. The doctrine of priority of interest could only have arisen if the contention between the Appellant and the Respondent was as to who between them was sold the whole of the land covered by exhibit A; and if their common grantor is found to have sold the whole of the land to both of them. But from all the evidence on record and all reasonable inferences, Isa Sanda Benesheik the original title holder of exhibit A sold the whole of the land covered by the said exhibit “A” to Mohammed Ali Chiroma who also sold the whole of it to the Respondent.
Even though the lower Court made pronouncement based on priority of interest in favour of the Respondent, the judgment in favour of the Respondent was not majorly based on it, but in its finding with which I am in agreement as earlier stated, that Isa Sanda Benesheikh sold the whole of the land covered by the certificate of occupancy No. BO/16507 (exhibit “A”) to Mohammed Ali Chiroma (Respondent’s Vendor)
In view of all that I have stated, I come to the conclusion that the sole issue on which I have considered this appeal must be resolved in favour of the Respondent and against the Appellant. This appeal is therefore devoid of merit and is hereby dismissed.
In consequence, the judgment of the lower Court delivered on 30th June, 2014 by Hon. Justice A.G Kwajaffa is hereby affirmed.
No order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the lead Judgment of my learned brother, Abundaga, J.C.A.
I agree with his reasoning and conclusions and so, adopt them as mine. In furtherance of this agreement, I will add a few words.
From the evidence placed before the trial Court, it was evident that the Respondent, as Plaintiff, proved his claim of title to the land in dispute by abundant credible evidence. His witnesses and even the witnesses of the Appellant/Defendant attested to his ownership. The only real dispute lay around whether the holder of the Certificate of occupancy No. BO/16507, Isa Sanda Benesheik, who sold the land to his vendor, Mohammed Ali Chiroma, sold the entire land or just a portion of the land.
My learned lord has conducted a commendable forensic analysis of the evidence, both oral and documentary, placed before the trial Court to resolve this issue. I agree with him that the Respondent, having adduced sufficient evidence in proof of his entitlement to the land, the burden of proof shifted to the Appellant to prove that only a portion of the land was sold to the Respondent – Section 133(1) and (2) of the Evidence Act, 2011. He failed in this bid – Nduul V Wayo (2018) LPELR-45151(SC) 51-53, A-B, per Kekere-Ekun, JSC; Ohochukwu V AG Rivers State (2012) LPELR-7849(SC) 37, E, per Mukhtar, JSC; Nwavu V Okoye (2008) LPELR-2116(SC) 31, D-E, per Tobi, JSC.
Having so failed, the learned trial Judge was right to have found in favour of the Respondent. However, the issue of priority of interest did not arise, given the facts and circumstances of the case. Therefore, the finding of the learned trial Judge thereon was unwarranted.
Nonetheless, on the whole, the trial Court came to a right decision when it found that the Respondent proved his claim before the trial Court. Therefore, even if the reason for the decision is slightly off-key or even wrong, it does not affect the outcome of the case where it is a correct decision. This is because the law is trite that an appellate Court is more concerned with whether the decision reached by the lower Court is correct, and not necessarily whether a wrong reason was given in reaching a right decision. If the decision is right, it will be upheld, notwithstanding the fact that a wrong reason was given for the decision. It is only where the misdirection has caused the Court to come to a wrong decision that it would be material – MTN Communication Ltd V Corporate Communication Investment Ltd (2019) LPELR-47042(SC) 18-19, F-B, per Kekere-Ekun, JSC; Ugo-Ngadi V FRN (2018) LPELR-43903(SC) 20-21, E-B, per Galinje, JSC.
In the result, I also find the Appeal lacking in merit. It fails and is dismissed. I abide by the consequential Orders made in the lead Judgment.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother ABUNDAGA JCA. From the evidence, both documentary and viva voce, it is obvious that the vendor Isa Sanda Beneisheik sold the whole land to Mohammed Ali Ciroma. The Appellant is just an innocent man who was sold a land that the said Benesheik had nothing to sell. It is trite law that no one can validly give what he does not have. This is expressed in the latin maxim of nemo dat quod non habet.
The maxim is most applicable where a party who does not have something purports to sell it Egbuta Vs Onuna (2007) 10 NWLR pt 1042 pg 298, Owena Bank Plc Vs Olatunji (2002) 12 NWLR pt 781 pg 259, Olagunju Vs Yahaya (2004) 11 NWLR pt 883 pg 24.
The doctrine nemo dat quod non habet is to the effect that a person cannot give what he does not have. Therefore, a vendor cannot subsequently sell land, which he already sold to another. Adeagbo Vs Williams (1998) 2 NWLR pt 536 pg 120. Yusuf Vs Matthew (1999) 13 NWLR pt 633 pg 30. Adesanya Vs Aderonmu (2000) 6 SC pt II pg 18 Elema Vs Akenzua (2000) 6 SC pt III pg 26.
For this and the more robust reasoning and conclusions in the lead judgment, I also find the appeal unmeritorious. It is therefore dismissed. The judgment of the lower Court is hereby affirmed.
Appearances:
Zanna Hamza, Esq. For Appellant(s)
Nankham Ayuba Dammo For Respondent(s)
