ZARAMI & ANOR v. MOFORO & ORS
(2020)LCN/15829(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, November 11, 2020
CA/G/468/2018
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
1. ALHAJI GREMA ZARAMI 2. KAKA ZARAMI APPELANT(S)
And
1. ALHAJI BUKAR MOFORO 2. BORNO STATE MINISTRY OF LAND & SURVEY 3. THE COMMISSIONER BORNO STATE MINISTRY OF LAND & SURVEY 4. ATTORNEY-GENERAL BORNO STATE RESPONDENT(S)
RATIO:
BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE
The burden of proof in a claim for declaration of title rests squarely on the Appellants as Claimants in the lower Court see Section 131(1) and 2, Sections 132 and 133 of the Evidence Act 2011. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
WHEN A CLAIMANT PLEADS SALE UNDER CUSTOMARY LAW AS HIS ROOT OF TITLE
Where a Claimant pleads sale under Customary Law as his root of title, he must plead the consideration, name the witnesses who witnessed the actual transaction and witnesses to the actual handing over of the land when the transaction was made. This is necessary even when witnesses are dead their names had to be pleaded. See Adedeji Vs Oloso (2007) All FWLR pt 358 pg 610. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
WHERE A PARTY IN A CLAIM OF TITLE TO LAND PLEADS PURCHASE OR GIFT AS HIS ROOT OF TITLE
Where a party in a claim of title to land pleads purchase or gift as his root of title, he either succeeds in proving the purchase or gift or he fails. If he fails to prove the title pleaded, he cannot turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded Okhuarobo vs Aigbe (2002) 9 NWLR pt 771 pg 29, Irawo Vs Adedokun (2005) 1 NWLR pt 906 pg 199. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
WHAT CONSTITUTE A COMPLETE SALE UNDER CUSTOMARY LAW
“Under Customary Law there is a complete sale once the purchase price has been paid and the buyer let into possession Per Abdullahi, JCA in Suleimana vs Laga (2013) LPELR 23223, Kasum vs Tijjani (2014) LPELR 23347, Udoye vs Ezenwabude (2015) LPELR 25882, Alli vs Gbadamosi (2017) LPELR 42379 Bassil vs Fajebe (2001) LPELR 757 Cole Vs Folami (1956) SCNLR pg 186. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
PROOF OF OWNERSHIP OR POSSESSION OF ADJOINING LANDS
In Uzochukwu Vs Eri Iguh JSC held: “Dealing finally with proof of ownership or possession of adjoining lands, the learned trial judge pointed out, quite rightly, that this mode of proof of ownership merely raises a presumption that the owner of the adjoining land is likely to be the owner of the land in dispute”.
“Also in Ifediora vs Okafor (2019) LPELR 49518, Abba Aji, JSC held “it is true that one of these five methods or ways of proof of title is by proof of adjacent land in circumstances rendering it probable that the adjacent land would also be the owner of the land in dispute. See Duru Vs Nwosu (1989) LPELR 968.” UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
ONUS OF PROVING A CLAIM FOR DECLARATION OF TITLE TO LAND
In a claim for declaration of title to land, the onus is on the Appellants to establish his claim upon the strength of his own case and not upon the weakness of the case of the Respondents. The Appellants must therefore satisfy the Court that upon the pleadings and evidence adduced by them, they are entitled to the declaration sought. Gbadamosi Vs Dairo (2007) 3 NWLR pt 1021 pg 282, Dada vs Dosunmu (2006) 18 NWLR pt 1010 pg 134 Onisaodu vs Elewuju (2006) 13 NWLR pt 998 pg 517, Ajiboye vs Ishola (2006) 13 NWLR pt 998 pg 517. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
DECLARATION OF TITLE BY OWNERSHIP BY LONG POSSESSION
Having failed to prove the purchase of the disputed land he cannot therefore, try to prove ownership by long possession. Indeed, a person or party, whose claim to ownership depends on long possession and use of the land, has only equitable title and cannot be granted a declaration of title. See Bala vs Liyafa Palace (2018) LPELR 46662 Oseni vs Oyetoro (2018) LPELR 44326. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
DECLARATION OF TITLE BY A NON-EXISTING ROOT WITH ACTS OF POSSESSION
“Where the radical title pleaded is not proved it is not permissible to support a non-existing root with acts of possession. Per Ogbuinya JCA. See Yusuf vs Adegoke (2007) LPELR 3534. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
DEFENCE OF LACHES AND ACQUIESANCE
Before a party can avail himself of this defence of Laches and Acquiesance, the following elements must be shown to be present by the person alleging same;
i. That the Defendant was in fact mistaken as to his own right over the land;
ii. That the Defendant had in his reliance as to his mistake expended money on the land;
iii. That the Plaintiff knew the existence of his own right which is inconsistent with the right of Claimant by the Defendant;
iv. That they knew of the mistaken belief by the Defendant of his right;
v. That the Plaintiff encourage the Defendant in the Defendant’s expenditure of money. On this I refer the Court to the case of Okereke & Anor vs Nwakwo (2003) 14 NSCOR (part 1) page 96 at 117-118 para A-H & A-D respectively. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE
It has been held severally that the burden of proof in a claim for declaration of title is on the Claimant. The Claimant must rely upon his own evidence and cannot rely on the weakness of the Defendant’s case.
Otanma v. Youdubagha (supra) Dike vs Okoloedo (1999) 10 NWLR pt 623 pg 359 Madubuonwu vs Nnalue (1999) 11 NWLR pt 628 pg 673, Eze vs Atasie (2000) 6 SC pt 1 pg 214, Elema vs Akenzua (2000) 6 SC pt III pg 26 Itauma vs Akpe-Ime (2000) 7 SC pt II pg 24. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
WHETHER A PERSON WHO IS NOT THE PROVEN OWNER OR OCCUPIER OF LAND CAN NULLIFY THE ACQUISITION
Goldmark Nig Ltd vs Ibafor Co Ltd (2013) All FWLR PT 663 pg 1830 where the Court held:
“A person who is not the proven owner or occupier of land in respect of which notice of acquisition or revocation is issued has no locus standi in law to seek nullification of the acquisition”
See Adeleke vs Akinyele L. G. (2011) LPELR 8945, Elegushi vs Oseni (2005) LPELR 1111, Titiloye vs Olupo (1991) 7 NWLR pt 205 pg 519 Kokoro-Owo vs Lagos State Government (2001) 11 NWLR pt 723 pg 237 Goldmark Nig Ltd vs Ibaja Co Ltd (2012) LPELR 9349. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
PRINCIPLE OF LAW IN EVALUATION OF EVIDENCE
In the evaluation of evidence, the trial Courts are guided by the following principles, namely;
(a) whether the evidence is admissible
(b) whether the evidence is relevant
(c) Whether the evidence is credible;
(d) Whether the evidence is conclusive
(e) Whether the evidence is more probable then that given by the other party
See Mogaji vs Odofin (1978) 4 SC pg 91, Akad Industries Ltd vs Olubode (2004) 4 NWLR pt 862 pg 1. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
RIGHT OF FAIR HEARING
The right of fair hearing is a Constitutional Right enshrined in Section 36 of the 1999 Constitution. The right cannot be waived or statutorily taken away. Bamgboye vs UNILORIN (1999) 10 NWLR pt 622 pg 290. Awoniyi vs The Registered Trustees of the Rosicruician Order, Amorc (Nig) (2000) 2 SC pt 1 pg 103. Araka vs Ejeagwu (2001) 5 WRN pg 1. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
ATTRIBUTE OF FAIR HEARING
The basic attribute of fair hearing include
(a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(b) That the Court or tribunal gives equal treatment opportunity and consideration to all concerned.
(c) That the proceeding be heard in public and all concerned shall be informed of and have access to such place of public hearing.
(d) That, having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly undoubtedly be seen to have been done. See Usani Vs Duke (2004) 7 NWLR pt 871. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
THE BURDEN OF PROVING AN ALLEGED BREACH OF FAIR HEARING
The burden is on the party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts of the case. This is because the facts of a case and the facts only determine acts which constitute non-compliance with the principle of fair hearing. Maikyo vs Itodo (2007) 7 NWLR pt 1034 pg 445. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
POSITION OF LAW ON EVALUATION OF RELEVANT AND MATERIAL EVIDENCE
It is also trite that evaluation of relevant and material evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute its own view for the views of the trial Court. Bashaya vs State (1998) 5 NWLR pt 550 pg 351, Ojokolobo Sha vs Kwan (2000) 7 SC pt 1 pg 24 Fagbenro vs Arobadi (2006) 7 NWLR pt 978 pg 174. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State delivered on 29th July 2018 in suit No. BOHC/MG/CV/15/117 by Hon Justice Haruna Mshelia. The Appellants as Claimants had taken out a Writ of Summons against the defendants claiming the following reliefs:
1. A DECLARATION that the Claimants are entitled to right of occupancy of land marked as plot 1 on the site plan situated at Gombole ward of Jere LGA and covered by certificate of occupancy No. JRLG/LAND/3392.
2. AN INJUNCTION restraining the Defendants, their agents, assignors, servants and whatsoever from trespassing intot he land market as plot No. 1 situated at Gombole ward of Jere LGA and covered by certificate of occupancy No. JRLG/LAND/3392.
3. AN ORDER of this Honourable Court putting the Claimant back in possession of the land marked plot 1 situated at Gombole ward of Jere LGA.
4. Cost of the suit.
Pleadings were exchanged by the parties, in proof of their case. The Appellants testified for themselves and tendered no exhibits.
The 1st Respondent as 1st Defendant testified on his behalf and tendered 8 exhibits; the 2nd, 3rd, and 4th Respondents called one witness and tendered two exhibits.
Addresses were filed and exchanged. After adoption, the learned trial judge delivered his judgment dismissing the claims of the Appellant hence this appeal.
The brief facts of this case is that the Appellants sued the Respondents. The 2nd Respondent acquired the land and paid compensation. It then allotted a plot N. 200 covered by the Grant Right of Occupancy BO/23977 on BOTP/122 to one Alhaji Mukhtar Umar Sheikh of Lamisula ward, Maiduguri, Borno State in 1994. He took immediate Possession but later sold the plot to Alhaji Maforo, the 1st Respondent on 18th January, 2006 by a Power of Attorney which he registered.
Immediately after purchase, he started developing the plot until one Ibrahim Musa an inlaw to the Appellants started claiming the plot. The 2nd – 4th Respondents were sued to determine the lawfulness of their acquisition of the land in disput. The suit No M/39/2005 was determined and the suit dismissed. The said Ibrahim Musa continued to trespass hence the 1st Respondent sued him in suit No. BOHC/MG/CV/108/2010. Judgment was given in the 1st Respondent’s favour. Then Ibrahim Musa sought all legal processes to upturn this judgment but it proved abortive.
The Appellants have now sued the 1st Respondent and 3 ors claiming a declaration on the same plot that their son inlaw had previously litigated and lost.
The Appellants also lost the declaration they sought in the High Court hence this appeal.
The Appellants being dissatisfied filed their notice and four (4) grounds of appeal on 26th September 2018. The Appellants filed their brief on 8th March 2019 but deemed properly filed and served on 3rd February 2020. In it the Appellants articulated four (4) issues for determination by this Court. The issues are as follows;
(a) Whether the lower Court was right for dismissing the suit by granting judgment in favour of the Respondents without adhering to the law as relates to prove by customary sale and long possession of the land in dispute
(b) Whether the lower Court was right in entering judgment for the Respondents without considering the fact that the 2nd and 3rd Respondents did not layout sufficient evidence as to the fact that the land in dispute was acquired by Government and duly compensated.
(c) Whether the lower Court was right in dismissing the suit and entering judgment in favour of the Respondents without availing the Appellants with the defence of laches and acqueisence
(d) The judgment of the lower Court is against the weight of evidence.
The 1st Respondent filed its brief on 21st June 2019 but deemed properly filed and served on 3rd February 2020. The 1st Respondent adopted the four issues articulated by the Appellants for determination. The 2nd, 3rd and 4th Respondents’ brief was filed on 11th September 2019 but deemed properly filed and served on 3rd February, 2020. In it, the Respondents also adopted the four issues articulated by the Appellant for determination.
ISSUE 1
Counsel submitted that there are five ways of proving ownership of land in Nigeria;
i. Traditional evidence
ii. Production of documents of title duly authenticated unless they are documents twenty years old or more produced from proper custody.
iii. Act of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person in possession are the true owners
iv. Act of long possession and enjoyment of other land so situated and connected with the land in dispute by locality or similarity that the presumption under the evidence Act and the inference can be drawn that what is true of one piece of land is likely to be true of the other piece of land.
v. Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner to the land in dispute. See the case of Nnadozie v Omesu (1996) 5 NWLR (pt 446)
Counsel argued that he had established paras c, d and e in his pleading, witness statement on oath and evidence in Court which was not contradicted in Court. Counsel stated that the Appellants purchased the plot of land on 12th May 1984. From 1984 – 2017, the Appellants claimed they enjoyed peaceful possession for 33years. Cw1 and Cw2 gave in evidence that they had had long peaceful possession for over 31 years. Counsel also stated that the disputed land was part of a vast area of land owned by them. That is the Appellants are in possession of all the surrounding land. The Appellants’ counsel argued that ownership of the connected or adjacent land renders it probable that the owner of such connecting land would be the owner of the land in dispute. See Nnadozie Vs Omesu (supra).
Counsel urged the Court to resolve this issue in the Appellants favour.
ISSUE 2
Learned counsel submitted that the 2nd, 3rd and 4th Respondents in their pleadings pleaded that Government had acquired that land and paid the necessary compensation. However, the Appellants are claiming that they were not paid any compensation as there was no list. It is important that when Government acquires property it is important that the particular Public Purpose must be given. See LSDPC vs Banire (1992) 5 NWLR pt 243 pg 620. Acquiring the land and allocating to individuals violated the provisions of the Land Use Act.
Counsel thereafter, urged the Court to resolved this issue on their behalf.
ISSUE 3
Counsel submitted that the Court should resolve this issue of laches and acquiescence. Counsel in para 7 of their statement of claim, where the Appellants pleaded this equitable remedy and conceded that it was a weapon of defence. See Angbazo Vs Hassan Sule (1996) 7 NWLR. Counsel still argued that they bought the land in issue since 1984, that if indeed the 2nd, 3rd and 4th Respondents acquired it, they should have brought it to the notice of the Appellants’ counsel in asking why the Respondents were silent and the Appellants were in peaceful possession all this while. The Appellants should not have been allowed to persist in their mistake and allow the Respondents to profit. See Nwakobi Vs Nzekwu (1961) 2 SC NLR pg 138 (1961) All NLR pg 445.
Counsel urged the Court to resolve this issue on their behalf.
ISSUE 4.
Learned counsel for the Appellants submitted that the judgement of the lower Court was against the weight of evidence proffered in the Court. Counsel urged the Court to look at the judgment. Counsel argued that he was not allowed to field Cw2 as a witness to produce and tender documents relied upon by the Respondents. Counsel argued also that the documents tendered by Dw1 was mutilated and full of errors. The photocopied document was also against the Evidence Act.
Counsel finally argued that the 2nd, 3rd and 4th Respondents’ address was not stamped and sealed and the lower Court failed to make a pronouncement on that issue.
Finally, counsel urged the Court to resolve this issue on behalf of the Appellants and allow this appeal.
RESOLUTION
The burden of proof in a claim for declaration of title rests squarely on the Appellants as Claimants in the lower Court see Section 131(1) and 2, Sections 132 and 133 of the Evidence Act 2011.
The Appellants in the lower Court claimed that they purchased the land in dispute from Yarima Modu by a Sale agreement. Where a Claimant pleads sale under Customary Law as his root of title, he must plead the consideration, name the witnesses who witnessed the actual transaction and witnesses to the actual handing over of the land when the transaction was made. This is necessary even when witnesses are dead their names had to be pleaded. See Adedeji Vs Oloso (2007) All FWLR pt 358 pg 610.
Where a party in a claim of title to land pleads purchase or gift as his root of title, he either succeeds in proving the purchase or gift or he fails. If he fails to prove the title pleaded, he cannot turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded Okhuarobo vs Aigbe (2002) 9 NWLR pt 771 pg 29, Irawo Vs Adedokun (2005) 1 NWLR pt 906 pg 199.
In this appeal, the Appellants did not plead the names of witnesses to the transaction and the names of witnesses to the handing over of the land to the Appellants. These are the facts the Appellants ought to prove to satisfy the Court that indeed such a transaction did take place
“under Customary Law there is a complete sale once the purchase price has been paid and the buyer let into possession Per Abdullahi, JCA in Suleimana vs Laga (2013) LPELR 23223, Kasum vs Tijjani (2014) LPELR 23347, Udoye vs Ezenwabude (2015) LPELR 25882, Alli vs Gbadamosi (2017) LPELR 42379 Bassil vs Fajebe (2001) LPELR 757 Cole Vs Folami (1956) SCNLR pg 186.
It would be recalled that the 1st Respondent sued Ibrahim Musa the Appellants’ inlaw in suit No BOHG/MG/CV/108/2010 over the same plot and the judgment was in favour of the 1st Respondent.
A party who fails to prove his radical title pleaded is not permitted to support a non-existent title with acts of possession. See the cases of Dabo vs Abdullahi (2005) Vol 5 MJSC pg 57, Oseni vs Bajulu (2009) Vol. 12 MJSC pg 30, Ukaegbu vs Nwololo (2009) Vol. 1 and 2 MJSC pg 98.
When an attempt to prove a root of title fails, acts of possession based on the root of title cannot sustain the title. The Appellants had failed to prove his title to the land based on sale under native or Customary Law.
The Appellants claimed that they owned the adjacent land to the disputed land in issue. This cannot be so as the Appellants litigated another adjoining land in the area in suit No BOHC/MG/CV/71/2017 and lost. The Appellants therefore, failed to prove that they owned the adjacent land. In Uzochukwu Vs Eri Iguh JSC held:
“Dealing finally with proof of ownership or possession of adjoining lands, the learned trial judge pointed out, quite rightly, that this mode of proof of ownership merely raises a presumption that the owner of the adjoining land is likely to be the owner of the land in dispute”.
“Also in Ifediora vs Okafor (2019) LPELR 49518, Abba Aji, JSC held “it is true that one of these five methods or ways of proof of title is by proof of adjacent land in circumstances rendering it probable that the adjacent land would also be the owner of the land in dispute. See Duru Vs Nwosu (1989) LPELR 968.”
I have reiterated that the burden of proving their case to entitle them to a declaration lies solely on the Appellants. In a claim for declaration of title to land, the onus is on the Appellants to establish his claim upon the strength of his own case and not upon the weakness of the case of the Respondents. The Appellants must therefore satisfy the Court that upon the pleadings and evidence adduced by them, they are entitled to the declaration sought. Gbadamosi Vs Dairo (2007) 3 NWLR pt 1021 pg 282, Dada vs Dosunmu (2006) 18 NWLR pt 1010 pg 134 Onisaodu vs Elewuju (2006) 13 NWLR pt 998 pg 517, Ajiboye vs Ishola (2006) 13 NWLR pt 998 pg 517.
The Appellants failed to prove purchase of the land in dispute to succeed in their claim for declaration. The Appellants failed to prove or state what the purchase price was. The Appellants also failed to plead the witnesses to the transaction nor the witnesses to the handing over of the land. See Akingbade Vs Elemosho (1964) LPELR 25225 Yusuf vs Maikananzir (2013) LPELR 22617, Atanda vs Commissioner for Land & Housing Kwara State (2017) LPELR 42346 Bassil vs Fajebe (supra) Okonkwo vs Okolo (1988) LPELR 2481.
Having failed to prove the purchase of the disputed land he cannot therefore, try to prove ownership by long possession. Indeed, a person or party, whose claim to ownership depends on long possession and use of the land, has only equitable title and cannot be granted a declaration of title. See Bala vs Liyafa Palace (2018) LPELR 46662 Oseni vs Oyetoro (2018) LPELR 44326.
“Where the radical title pleaded is not proved it is not permissible to support a non-existing root with acts of possession. Per Ogbuinya JCA. See Yusuf vs Adegoke (2007) LPELR 3534.
So also the Appellants cannot support their failed proof of purchase by ownership of adjoining or adjacent land, which they also failed to prove in suit no BOHC/MG/CV/71/2017. See Uzochukwu vs Eri (supra) Ifediora vs Okafor (supra).
The Appellants have failed abysmally to prove their claims to entitle them to a declaration in this appeal.
The Appellants argued that the Court should have invoked the doctrine of Laches and Acquiescence. However, I was glad when their counsel stated unequivocally that it is to be used as a shield not a sword. That is, it is only available to a Defendant not a Plaintiff. The equitable doctrine of laches and acquiesance is a defence available to the Defendants but not a Claimant as claimed by the Appellants in this appeal. Even in the case of the defence, the Defendant who intends to rely upon the doctrine must specifically plead and prove same at the trial.
The Appellants interchangeably referred to themselves as Plaintiffs and at other times as Defendants. In this appeal, the Appellants did not plead this doctrine in the lower Court neither did they prove it on appeal. Can this equitable remedy avail the Appellants who were the Claimants in the lower Court? In this appeal, it is the Appellants who have allowed their son inlaw, Ibrahim Musa, to litigate the disputed land. After he has lost, the Appellants started and filed another suit to re-litigate on the same land against the 1st Respondent. The Appellants should be the one caught by this equitable doctrine. See Duru vs Onwumelu (2001) 12 SCNJ pg 306 Onwu vs Nka (1996) 7 SCNJ pg 240, Agbogunleri vs Depo (2008) All FWLR PT 408 pg 240.
Before a party can avail himself of this defence of Laches and Acquiesance, the following elements must be shown to be present by the person alleging same;
i. That the Defendant was in fact mistaken as to his own right over the land;
ii. That the Defendant had in his reliance as to his mistake expended money on the land;
iii. That the Plaintiff knew the existence of his own right which is inconsistent with the right of Claimant by the Defendant;
iv. That they knew of the mistaken belief by the Defendant of his right;
v. That the Plaintiff encourage the Defendant in the Defendant’s expenditure of money. On this I refer the Court to the case of Okereke & Anor vs Nwakwo (2003) 14 NSCOR (part 1) page 96 at 117-118 para A-H & A-D respectively.
From the above it is obvious that this defence is only open to the Defendant who had expended his money on the land belonging to the Claimant whilst the Claimant kept quiet or mute.
“This equitable doctrine is that a Claimant will be barred. Unless he has been reasonably diligent, from seeking relief from the Court” Oduola vs I.C.C (1978) LPELR 255, Chukwuma vs Ifeloye (2008) LPELR 862 Moore vs Okafor (2014) LPELR 24339.
It is obvious from the foregoing that the Appellants cannot rely on the equitable doctrine of Laches and Acquiescence.
The Appellants complained that the 2nd and 3rd Respondents claimed they had acquired the land and paid compensation but however, the Appellants argued that they were not paid. Appellants argued that they were not compensated and there was no list to show the names of people compensated.
It has been held severally that the burden of proof in a claim for declaration of title is on the Claimant. The Claimant must rely upon his own evidence and cannot rely on the weakness of the Defendant’s case.
Otanma v. Youdubagha (supra) Dike vs Okoloedo (1999) 10 NWLR pt 623 pg 359 Madubuonwu vs Nnalue (1999) 11 NWLR pt 628 pg 673, Eze vs Atasie (2000) 6 SC pt 1 pg 214, Elema vs Akenzua (2000) 6 SC pt III pg 26 Itauma vs Akpe-Ime (2000) 7 SC pt II pg 24.
It is obvious from the pleading of 2nd and 3rd Respondents that this land in dispute and others were acquired by them in 1988. Compensation was paid to the rightful owners before the land was laid out and allocated to individuals. Also, the legal owners have litigated the acquisition of this land in plan No BOTP/122 in the High Court as suit No M/39/2005. This suit challenged the Borno State Government over acquisition of the land and was dismissed by the High Court holding that the acquisition followed due process and compensation was paid sealing the acquisition off.
The 2nd and 3rd Respondents paid the identified lawful owners of the land who also lost in the litigation against the acquisition by Government. It has not been proved that the Appellants were the lawful owners of the land in dispute. See Goldmark Nig Ltd vs Ibafor Co Ltd (2013) All FWLR PT 663 pg 1830 where the Court held:
“A person who is not the proven owner or occupier of land in respect of which notice of acquisition or revocation is issued has no locus standi in law to seek nullification of the acquisition”
See Adeleke vs Akinyele L. G. (2011) LPELR 8945, Elegushi vs Oseni (2005) LPELR 1111, Titiloye vs Olupo (1991) 7 NWLR pt 205 pg 519 Kokoro-Owo vs Lagos State Government (2001) 11 NWLR pt 723 pg 237 Goldmark Nig Ltd vs Ibaja Co Ltd (2012) LPELR 9349
Having not proved that they were the owners of the land in issue compensation would not have been paid to the Appellants.
Where the Appellants’ counsel submitted that the judgment was against the weight of evidence it puts the learned trial judge on the spot. The integrity of the judgment is therefore, in question whether the learned trial judge appraised all material evidence placed before it.
In the evaluation of evidence, the trial Courts are guided by the following principles, namely;
(a) whether the evidence is admissible
(b) whether the evidence is relevant
(c) Whether the evidence is credible;
(d) Whether the evidence is conclusive
(e) Whether the evidence is more probable then that given by the other party
See Mogaji vs Odofin (1978) 4 SC pg 91, Akad Industries Ltd vs Olubode (2004) 4 NWLR pt 862 pg 1.
In civil cases, the Court decides the case on the balance of probabilities or preponderance of evidence. This is done when a trial Court puts on an imaginary scale the totality of the evidence adduced by the parties before it, before coming to a decision as to which evidence it accepts and which it rejects. Fagbenro vs Arobadi (2006) 7 NWLR pt 978 pg 174.
The Appellants’ counsel argued that the Court did not allow him to field Cw2 and that was a breach of his Fundamental Right of Fair Hearing. A breach that should nullify the proceedings of this Court.
This is not the real sequence of events that happened in the Court below. From the Record of Appeal it was indeed the Appellants’ counsel that applied to withdraw this witness. He opined that he can dispense with his evidence. These were his exact words.
“ I now apply to withdrew this witness. I can dispense with him”
The trial Court was not given a chance to rule one way or the other whether to allow the witness or not to be fielded .
The right of fair hearing is a Constitutional Right enshrined in Section 36 of the 1999 Constitution. The right cannot be waived or statutorily taken away. Bamgboye vs UNILORIN (1999) 10 NWLR pt 622 pg 290. Awoniyi vs The Registered Trustees of the Rosicruician Order, Amorc (Nig) (2000) 2 SC pt 1 pg 103. Araka vs Ejeagwu (2001) 5 WRN pg 1.
The Appellants alleged that the Court below did not accord them fair hearing by denying them an opportunity to fieled one witness. However, this has been proved to be untrue as per the Record of Appeal pg 132 lines 10-15.
The basic attribute of fair hearing include
(a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(b) That the Court or tribunal gives equal treatment opportunity and consideration to all concerned.
(c) That the proceeding be heard in public and all concerned shall be informed of and have access to such place of public hearing.
(d) That, having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly undoubtedly be seen to have been done. See Usani Vs Duke (2004) 7 NWLR pt 871.
The burden is on the party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts of the case. This is because the facts of a case and the facts only determine acts which constitute non-compliance with the principle of fair hearing. Maikyo vs Itodo (2007) 7 NWLR pt 1034 pg 445.
In this appeal, the allegation of breach of fair hearing was debunked by the Respondents.
Thus that the judgment of the Court is against the weight of evidence is very far away from the truth. It is also trite that evaluation of relevant and material evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute its own view for the views of the trial Court. Bashaya vs State (1998) 5 NWLR pt 550 pg 351, Ojokolobo Sha vs Kwan (2000) 7 SC pt 1 pg 24 Fagbenro vs Arobadi (2006) 7 NWLR pt 978 pg 174.
In this appeal there is nothing like a breach of fair hearing. The parties presented their case the way they deemed fit. I must comment that the trial judge appraised all material evidence placed before the Court in reaching his decision. I cannot in the circumstance substitute his views with mine. I cannot fault his evaluation of evidence.
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The Appellant’s counsel also submitted that the 2nd, 3rd and 4th Respondents’ address was not stamped and sealed. This is a mere irregularity that cannot vitiate the hearing of this appeal. I am aware that rules of Court are to aid the quick and orderly dispensation of justice and not to enslave it. Duke vs Akpabuyo Local Government Area (2005) LPELR 963 where Pats-Achalonu JSC held:
The term ‘irregularity” in respect of procedure, is most often construed by the Court to denote something not being fundamentally tainting or besmirching a proceeding as to render it invalid or a nullity id est, it is curable.
In sum, the four issues articulated by the Appellant have all been resolved against him. This appeal is therefore unmeritorious. It is dismissed. I affirm the judgment of the lower Court.
Cost to the 1st Respondent is assessed at Two hundred and fifty thousand naira (N250,000.00).
JUMMAI HANNATU SANKEY, J.C.A.: My learned brother, Ndukwe-Anyanwu, J.C.A., has made available to me in draft form an advance copy of the Judgment just delivered wherein this appeal was dismissed.
The issues raised in the appeal have been resolved in full. I am in agreement and have nothing more to add.
I abide by the orders made in the lead Judgment, including the order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the Judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. His Lordship was painstaking in her resolution of the germane issues for determination in the appeal against the Appellants and in favour of the Respondents. I find no reason to differ and indeed, I have nothing useful to add. Therefore, I too find the appeal utterly without merit, and dismiss same.
In consequence, I affirm the Judgment of the lower Court. I abide his lordship’s order on costs.
Appearances:
S. ALI, ESQ. For Appellant(s)
H. Y. GANA (DDCL Ministry of Justice Borno State), with him, B. G. ALI, ESQ. – for 1st Respondent. For Respondent(s)
