ARDO v. BOBBOI & ORS (2022)

ARDO v. BOBBOI & ORS

(2022)LCN/16250(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, July 21, 2022

CA/YL/101/2021

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

MAL. DAHIRU MUHAMMED ARDO (Appealing As An Interested Party For Himself And The Members Of The Hamman AmaFamily) APPELANT(S)

And

1. ARDO YAHAYA BOBBOI 2. GIDADO JAURO SIDIKI 3. BARKINDO HASHIMU 4. MODIBO IYA 5. HALILU SADE RESPONDENT(S)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Adamawa State High Court, Coram, Justice I. K. Banu, in Suit No.: ADSY/51/2013, delivered on the 27th day of March, 2018. The 1st Respondent (as plaintiff before the lower Court) initiated the action, via a Writ of Summons, against the 2nd-5th Respondents (as defendants), claiming several reliefs. The Writ of summons is contained at pages 3 and 4 of the record of appeal. In its judgment, the lower Court refused the claim of the 1st Respondent and dismissed the same. In doing so, the lower Court rendered decisions touching on the Appellant’s family’s right and interest, in spite of the fact they were not parties to the relevant action. The judgment is at pages 136-175 of the record of appeal.

Dissatisfied with the decision of the lower Court, the Appellant applied to this Honourable Court for leave to appeal as an interested party, through an application dated the 23rd of April, 2019. Leave of Court to appeal as an interested party has been duly granted to the Appellant by this Honourable Court on the 10th June, 2019.

STATEMENT OF FACTS
Sometimes in 2011 during the Chairmanship of one Alhaji Sani Ribadu, as the Chairman Yola South LGA of Adamawa State, the Council, while allocating plots of land to prospective applicants, wrongly encroached into the 1st – 5th Respondents’ land situate and lying at Yokosala community. (NB: the 1st Respondent in this appeal is a member of the 2nd-5th Respondents’ family i.e. Jauro Hammiwo family) The Respondents herein, lodged a complaint against the said encroachment to the said Chairman of Yola South LGA. The Chairman thereafter compensated Yokasala Community through Jauro Hammiwo family being the owners of all land at Yokosala with the land in dispute (plot 29 and plot 30) measuring 20.42 Hectares covered by 2 letters of allocation dated 16th June, 2011 with Ref. No. YSLG/LAN/LP6 (EXHIBITS B & C).

The 1st Respondent being a member of Jauro Hammiwo family was allowed to hold on to the allocation letters on behalf of the Hammiwo family. Unknown to the other members of the Hammiwo family, the 1st Respondent authored a document purporting to transfer the land to Hamman Mamma family of Mbamba village (EXHIBIT D). Thereafter, the 1st Respondent claimed through EXHIBIT A & E that the family of Hamman Mamma had sold the said land to him at the total sum of N2,700,000.00.

The 2nd-5th Respondents contended that, they have never transferred any part of their land to any person or family which prompted the 1st Respondent to institute the action appealed against 2.04 The Appellant herein claimed that the judgment of the trial Court touches on their family right and interest, hence they sought to appeal as interested parties.

It is important to note that the family of the Appellant (Hamman Mamma) though not parties at the trial Court, were aware of the case and did not complain about their purported right and interest. See the evidence of PW3 (Aminu Ardo Mbamba), PW4 (Bashiru Ardo Mbamba) and PW6 (Sa’ad Ardo Yahaya) shows that these witnesses are all members of Hamman Mamma family (The Appellant herein) See pages 20-22, 23-25 and 29-31 of the printed record of appeal.

Dissatisfied with the judgment of the trial Court, Appellant an interested party having obtained the leave of this Court filed a Notice and seven grounds of appeal. The Reliefs sought from this Court are:
i) AN ORDER allowing this appeal.
ii) AN ORDER setting aside the judgment of Honourable Justice l. K. Banu (Chief Judge) of Adamawa State High Court, delivered in Yola on the 27th day of March, 2018, in Suit No ADSY/61/2013, declaring the sale of the disputed land to the 1st Respondent by the Appellant’s family unlawful.

At the hearing of this appeal on the 20th of May, 2022 Aminu Murtala Aminu Esq., learned Counsel for the Appellant, adopted the Appellant’s Brief of argument dated 15th November, 2021, filed 18th November, 2021, in urging the Court to allow the appeal, set aside the entire decision of the lower Court, evaluate the evidence adduced before the trial Court, and grant the reliefs sought by the Appellant.

On his part, learned Counsel for the 2nd-5th Respondents, Ahmed Isa Esq., adopted the 2nd-5th Respondents brief of argument dated 21st Mach, 2022, filed on 28th March 2022, and deemed duly filed on 20th May, 2022, in urging this Court to dismiss the appeal.

The Appellant, for the effectual resolution of this appeal, formulated the following two issues for determination:
i) Whether the learned trial Judge did not improperly evaluate the evidence adduced in support of the 1st Respondent’s ownership of the land in dispute pursuant to his purchase thereof from the Appellant’s family, and whether the decision or conclusion thereon is not liable to be set aside. (Grounds 1, 2, 3, 4 and 7).
ii) Whether the learned trial Judge was not wrong in declaring the sale of the land in dispute to the 1st Respondent by the Appellant’s family unlawful in spite of the evidence adduced on record in that regard and the fact that the Appellant’s family was not a party to the suit. (Grounds 5 and 6)

2nd-5th Respondents in their Brief of Argument adopted the Appellant’s two issues for determination as follows:
i) Whether the learned trial Judge did not improperly evaluate the evidence adduced in support of the 1st Respondent’s ownership of the land in dispute pursuant to his purchase thereof from the Appellant’s family, and whether the decision or conclusion thereon is not liable to be set aside. (Grounds 1, 2, 3, 4 and 7).
ii) Whether the learned trial Judge was not wrong in declaring the sale of the land in dispute to the 1st Respondent by the appellant’s family unlawful in spite of the evidence adduced on record in that regard and the fact that the Appellant’s family was not a party to the suit. (Grounds 5 and 6)

APPELLANT’S ARGUMENT ON THE ISSUES FOR DETERMINATION
Issues One and Two jointly argued,
i) Whether the learned trial Judge did not improperly evaluate the evidence adduced in support of the 1st Respondent’s ownership of the land in dispute pursuant to his purchase thereof from the Appellant’s family, and whether the decision or conclusion thereon is not liable to be set aside. (Grounds 1, 2, 3, 4 and 7).
ii) Whether the learned trial Judge was not wrong in declaring the sale of the land in dispute to the 1st Respondent by the Appellant’s family unlawful in spite of the evidence adduced on record in that regard and the fact that the Appellant’s family was not a party to the suit. (Grounds 5 and 6).

The Appellant in arguing the two Issues above contended that the learned trial Judge improperly evaluated the evidence on record and, as a result, was misled into declaring the sale of the land in dispute unlawful. The Appellant also contends that the lower Court wrongly declared as unlawful the sale of the disputed land to the 1st Respondent without affording the Appellant’s family, the vendors, the opportunity to be heard beforehand.

It is submitted that the 2nd-5th Respondents, however, failed totally to discharge the duty of proof placed on them. Therefore the 2nd – 5th Respondents’ defence must fail and give way to the 1st Respondent’s established claim. The 1st Respondent’s claim was split into two arms. The first arm of the 1st Respondents case revolves around Exhibit D. Under this arm, he contends that the Yokasala Community consists of his family, the Jauro Hammiwo and the Appellant’s family, the Hamman Mama. Some time ago, the Yola South Local Government Council acquired the Yokasala Community’s land and compensated them with an expanse of land at Sebore layout. The 1st Respondent also contends that the distribution of the land at Yokasala between the two families was established in a meeting, as evidenced by Exhibit D.

The second arm of the 1st Respondent’s claim centers around Exhibits A, B, C and E. The Appellant contends that it was eventually discovered that the land acquired at Yokasala belonged exclusively to the Appellant’s family, and on that note, the land in dispute at Sebore was surrendered exclusively to the Appellant’s family. This exclusive surrender was achieved by handing over Exhibits B, and C, the letters of allocation of the land at Sebore layout, to the Appellant’s family. The Appellant’s family later sold the land at Sebore to the 1st Respondent for a consideration of N2,700,000.00 (Two Million, seven Hundred Thousand Naira only). The 1st Respondent commenced this action before the lower Court owing to the 2nd-5th Respondents’ trespass on the land at Sebore, after he had validly acquired the same from the Appellants’ family.

Learned counsel for the Appellant proceeded to establish the Appellant’s contention, in urging this Court to find and hold that this appeal is meritorious and, consequently, allow the same. He referred to paragraphs 13, and 14 of the 1st Respondent’s statement of claim, on page 7, of the record of appeal. Counsel contended that the 1st Respondent pleaded the fact that there was a meeting in March, 2012, between the Jauro Hammiwo and Hamman Mama families, wherein the boundaries and distribution of the land at Yokosala were decided. The 1st Respondent also pleaded the fact that, representatives of both families were in attendance, and signed the agreement of understanding reached. In support of these facts, the 1st Respondent tendered Exhibit D, in evidence.

Learned counsel further submitted that, the 2nd-5th Respondents, on the other hand, attempted to deny the 1st Respondent’s pleadings in paragraph 10 of their JOINT STATEMENT OF DEFENCE (hereinafter simply called ‘the defence’), on page 59 of the record of appeal. Proceeding, counsel referred to 1st Respondent’s paragraphs 15-19 of his statement of claim, on page 7 of the record of appeal. In support of the averments in paragraphs 15-19, during trial, the 1st Respondent tendered the allocation letters given to the Appellant’s family, Exhibits B, and C, as well as the Hausa, and English versions of the sale agreement, Exhibits A and E respectively. Learned counsel further contended that the 2nd – 5th Respondents, attempted to deny the above excerpts, by their paragraphs 11-13 of their statement of defence.

It is submitted further that, having established that the land in dispute was totally surrendered to the Appellant’s family, the 2nd – 5th Respondents’s family, Jauro Hammiwo, no longer has any link with the same. All links, by family ties, to the land in dispute are, from the point Exhibits “B” and “C” were handed over to it, exclusively reserved in the Appellant’s family. He urged this Court to discountenance the evidence adduced by the 2nd – 5th Respondents’s witnesses, and hold that the 1st Respondent’s evidence regarding the sale of the land in dispute to him was unchallenged. Without an action to set aside Exhibit “E”, counsel submitted that the Respondents cannot unilaterally, in their pleadings, adjudge it to be forceless or unable to confer title.

It is further submitted that, by the uncontroverted evidence led by the 1st Respondent, especially Exhibits “A” and “E”, “B” and “C”, the 1st Respondent duly proved that the land in dispute initially belonged exclusively to the Appellant’s family and was eventually duly sold to him.

That learned trial Judge on page 175 of the record of appeal, declared the sale of the land in dispute by the Appellant’s family to the 1st Respondent unlawful. The learned trial Judge based this declaration on Exhibit “D”, as well as the purported fact that the Appellant failed to prove that the land in dispute belonged exclusively to the Appellant’s family, and that the sale to him was lawful. It is submitted that the learned trial Judge was in error when he proceeded to consider the lawfulness vel non of the sale of the land in dispute to the 1st Respondent. This is because this was never in issue between the parties. It is submitted that it is unlawful for the learned trial Judge to have tampered with the Appellant’s family’s right without having it as a party to defend or waive such right. In the same vein, counsel submitted that, for the determination of the lawfulness or otherwise of the sale in question, the Appellant’s family is a proper party, without which a just resolution is impossible to reach. Therefore, Appellant’s family is an indispensable party in the determination of the lawfulness, or otherwise of the sale of the land in dispute to the 1st Respondent. It is further submitted that, based on the proved fact that the exclusive ownership of the Appellant’s family was a matter arising or discovered after the creation of Exhibit “D”, it was totally out of order for the learned trial Judge to base his analysis of the sale thereon. The sale of the land in dispute has no relationship at all with Exhibit “D”, as the same was predicated on a status, the exclusive ownership, which came into existence after, and overtook the existence of the said Exhibit “D”.

In light of the foregoing, counsel contended that the 1st Respondent duly proved the legitimate sale of the land in dispute to him by the Appellants’ family. In essence, the 1st Respondent has duly established that he is currently the exclusive owner of the land in dispute. It is clear that the said issue, as couched or accepted by the learned trial Judge himself, borders strictly on the 1st Respondent’s claim. Counsel asked the question what does the 1st Respondent’s claim have to do with the lawfulness or otherwise of the sale of the land in dispute to him? He answered that, the learned trial Judge veered off the matter placed before him for determination.

In conclusion, counsel submitted that, in any event, having accepted the fact that exhibit D, partitioned the land at Yokasala between the Jauro Hammiwo and the Appellant’s family, the lower Court was in grave error to have declared unlawful the sale of the entire land in dispute. It is submitted that if the entire land in dispute was not legitimately vested in the Appellant’s family, the portion exhibit D, allocated to them, as accepted by the learned trial Judge, cannot therefore, be taken away from them. Consequently, the sale thereof cannot be declared unlawful. Learned counsel attacked the holding, it was unlawful for the learned trial Judge to have invalidated the sale of the land in dispute, without clearly indicating the exclusion of the portion from Dubbi eastward to Sebore Ndundu, which exhibit D, vested exclusively in the Appellant’s family. Based on all the above submissions, counsel urged this Court to resolve all the issues for determination in the Appellant’s favour, and against the Respondents, allow this appeal and set aside the judgment of the learned trial Judge.

2nd – 5th Respondents’ Arguments on Issues 1 and 2.
1. Whether the learned trial Judge did not improperly evaluate the evidence adduced in support of the 1st Respondent’s ownership of the land in dispute pursuant to his purchase thereof from the Appellant’s family and whether the decision or conclusion thereon is not liable to be set aside. (Grounds 1, 2, 3, 4, and 7)
2. Whether the learned trial Judge was not wrong in declaring the sale of the land in dispute to the 1st Respondent by the Appellant’s family unlawful in spite of the evidence adduced on record in that regard and the fact that the Appellant’s family was not a party to the suit. (Grounds 5 and 6)

Respondents’ counsel in arguing Issues One and Two submitted that the trial Judge properly evaluated the evidence before him before declaring the sale of the land in dispute unlawful. The Judge was also right to declare as unlawful the sale of the disputed land to the 1st Respondent, because the Court did not deny anyone the right to be heard.

The law is trite that, the burden of proof in the instant case lies squarely on the 1st Respondent (the Plaintiff) to establish, and lead credible and unchallenged evidence to prove the following:
(a) That Yokosala community consists of both Jauro Hammiwo family and Hamman Mamma family (Appellant).
(b) That there was a meeting to partition the land in dispute between the two families, and that the provisions of Section 2 of the Illiterate Protection Law, CAP 67, Laws of Adamawa State, 1997, Vol 2 has been complied with, before EXHIBIT D was signed by the 2nd – 5th Respondents’ family.
(c) That there was another meeting where it was resolved that the land acquired by Yola South LGA belonged to Hamma Mamma family (The Appellant), and that it was agreed that EXHIBITS C and D be surrendered to the Appellant.

The Appellant or the 1st Respondent (Plaintiff) in the instant appeal is not allowed to rely on the weakness of the defence and evidence of the 2nd – 5th Respondents’ witnesses to get judgment in his favour. See the case of: A. I. C. LIMITED Vs. NIGERIAN NATIONAL PETROLEUM CORPORATION (2005) LPELR -6 (SC) where the Supreme Court held per EDOZIE, JSC at pages 35-36, paras. G-C as follows:
”It is elementary principle of law, for which a citation of authority is not necessary, that the onus is on a Plaintiff to prove his case and he must do so on the strength of his own case and not on the weakness of that of the defendant”

In the same vain, it was also held in the case of: CARLEN (NIG) LTD vs. UNIJOS (1994) 3 NWLR (pt. 323) 631 at 668 that:
“A Court of law acts on facts and not guess or speculation”

In the first place, it is submitted that the 1st Respondent did not specifically plead and lead evidence to show that Yokosala community consists of Jauro Hammiwo and Hamman Mamma families. The burden lies squarely on the 1st Respondent. Failure on his part is fatal to his contention that there are two families that made up Yokosala community.

Secondly, the Appellant contended that there was a meeting to partition the land in dispute at the end of which EXHIBIT D was authored. The 2nd – 5th Respondents had pleaded in paragraph 10 of their statement of defence that there has never been a meeting held in March, 2012, or any other date between them, and the family of the Appellant, and that they did not sign any document

DW1, DW2, DW3 and DW 4 in paragraphs 10, and 11 respectively of their statement on oath (pages 63 -74 of the record of appeal) gave evidence in support of the pleaded facts in paragraph 10 of the statement of defence. It is submitted that the 1st Respondent did not reply to the said pleaded facts nor effectively challenge the evidence of DW1, DW2, DW3 and DW4. Their evidence remained unchallenged and admitted. See NIGER-BENIN TRANSPORT CO. LTD vs. OKEKE (2005) ALL FWLR pt. 256 page 1286 ratio 10; JUDICIAL SERVICE COMMISSION vs. OMO (1990) 6 NWLR pt. 157 page 407 ratio 15.

It is submitted that EXHIBIT D, which is the product of the purported meeting is by the operation of the law unenforceable against the 2nd – 5th Respondents. On this issue counsel relied on the provisions of Section 2, of the Illiterate Protection Law, CAP 67, Laws of Adamawa State, 1997, vol. 2 which reads thus:
“Any person who shall write any letter or document at the request, on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer thereof and his address, and his so doing shall be equivalent to a statement:
(a) That he was instructed to write such a letter or document by the person for whom it is purports to have been written and that the letter or document fully and correctly represents his instructions,
(b) If the letter or document purports to be signed with the signature or mark of the illiterate person, that person to its being so signed it was read over and explained to the illiterate person, and that the signature or mark was made by such person”

Section 3 of the same law provides:
“If the writer of any such letter or document shall fail to write thereon his name and address, or if, having done so, any statement which under Section2, as in consequences implied shall be found to be untrue, the writer shall be liable to a fine of five hundred Naira or in default of payment to imprisonment for six months.”

EXHIBIT ‘D’ is a document written in English Language. PW6, during cross-examination stated that he knows the Defendants (2nd – 5th Respondents) and that all of them are illiterates. That EXHIBIT D, was prepared by Alkali Aminu a retired Area Court Judge. It is clear that the said EXHIBIT D contains no illiterate jurat, as contemplated by Sections 2 & 3 of the Illiterate Protection Law of Adamawa State.

The Supreme Court in the case of: EZEIGWE v AWUDU (2008) ALL FWLR Pt 434 page 1529 ratio 2 defines an illiterate as:
“A person who is unable to write or read or understand a particular document.”

It is therefore not in dispute that the 2nd – 5th Respondents are illiterates as confirmed by PW6, during his cross-examination. It is also not in dispute that EXHIBIT D contains no jurat. This being the case, EXHIBIT ‘D’ is caught up by the provisions of Sections 2 & 3 of the Illiterate Protection Law.

The Supreme Court still in AWUDU’s case supra ratio 3 stated thus:
“The object of illiterate protection Law is to protect an illiterate person from possible fraud. Strict compliance therewith is obligatory as regards the writer of the document. If the document creates legal rights and the writer benefits thereunder, those benefits are only enforceable by the writer of the document if he complies strictly with the provisions of the ordinance. If a document which does not comply with the provisions of the ordinance creates legal right between the illiterate and a third party, then evidence may be called to prove what happened at the time the document was prepared by the writer before the parties signed it. But the writer himself cannot adduce evidence in his own form to remedy the omission. In the instant case, the document executed by the defendant did not meet the requirement of the law, therefore the trial Court rightly held that the plaintiff could not claim thereunder”.

The 1st Respondent has failed woefully to lead evidence to show that the 2nd – 5th Respondents were not illiterates at the time EXHIBIT D was made.

Thirdly, the Appellant contended that there was another meeting held where it was discovered that the land acquired by the Yola South LGA belonged to the Appellant’s family, and so the allocation letters of the two plots of land in dispute were surrendered to the Appellant’s family, making the land in dispute exclusively the Appellant’s land. Assuming, this contention is true then it contradicts EXHIBIT D which purportedly provided for the partitioning of the land.

There is no paragraph in the Statement of Claim of the Plaintiff (1st Respondent) where he pleaded the fact that another meeting was held where, it was discovered that the Appellant’s family are the exclusive owners of the land acquired by the government, and so the land given as compensation exclusively become theirs. It is trite law that facts not pleaded goes to no issue.

Learned counsel submitted that there is also no evidence as of the name of the person who handed over the allocation letters to the Appellant’s family. The name of the place where the meeting was held, the date the meeting was held and the time the meeting was held had not been pleaded and had not been established by evidence. The bottom line is that the 1st Respondent cooked up this story which the Appellant herein wants to take advantage of.

Learned counsel submitted that the Appellant cannot rely on EXHIBIT D, which provided for the partitioning of the land on the one hand, and again claim that the whole land belongs to them exclusively. He submitted that there is no document varying the terms contained in EXHIBIT D. There is therefore no evidence to prove that, the Appellant acquired title over the land sold to the 1st Respondent measuring about 20.40 Hectares. If the Appellant cannot prove title over the disputed land, then it means that the 1st Respondent cannot lay claim over the land. The Appellant cannot give the 1st Respondent what they don’t have.

The Appellant in his brief of argument hammered on the weakness of the 2nd – 5th Respondents’ case at the trial Court. He seemed to forget the fact that the burden is always on he who asserts and not the other way round.

With the above analysis of the evidence called by both parties at the trial Court and the documents admitted as EXHIBITS, learned counsel submitted that it would be right and correct to say that the trial Court did properly evaluate the evidence before it. In the case of: ISHOLA vs. U.B.N. L TO (2005) ALL FWLR PART 256, 1202 RATIO 1 & 2 the Supreme Court held that:
“It is the duty of the trial Court which saw and heard the witnesses testify and observed their demeanors, to evaluate the evidence adduced before it and make findings of fact. An appellate Court does not normally disturb such findings of fact by the trial Court except where such findings are shown to be perverse or not supported by evidence”

It is submitted by learned counsel that, the learned trial Judge has therefore properly evaluated the said evidence, before arriving at the decision declaring the sale of the land in dispute unlawful. The authorities cited by the Appellant’s Counsel in this regard are all inapplicable to the case at hand.

In conclusion, counsel urged this Court to note the inconsistency in the measurement of the land in dispute as contained in the endorsement on the Writ of Summons which is 19.23 Hectares on the one hand and evidence of the 1st Respondent’s witnesses and Exhibits tendered which is 20.42 Hectares.

This Court is urged to resolve these two issues argued together in favour of the 2nd – 5th Respondents and against the Appellant.

It is the view of learned counsel that this appeal is pregnant with defects. It lacks merit. It thus boils down to an academic exercise which is not the duty of the Court to undertake.

The Court is urged to dismiss this appeal in its entirety, affirm the judgment of the trial Court delivered on the 2th March, 2018 and award substantial cost in favour of the 2nd – 5th Respondents.

RESOLUTION OF ISSUES ONE AND TWO
This appeal is by an interested party against the decision of the Adamawa State High Court in, Suit No: ADSY/51/2013 delivered on the 27th March, 2018. The 1st Respondent (as Plaintiff before the lower Court) initiated the action, via Writ of Summons, against the 2nd-5th Respondents (as defendants) claiming declaratory orders of ownership of land, as well as for damages for trespass and for orders of injunction.

It is trite law that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11, NWLR (Pt 990) 1 Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (pt 1206) 559.
Where a claimant’s claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348.
The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities -Abaye Vs Ofili (1986) 1 NWLR (Pt 15) 134, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1 Momoh Vs Umoru (2011) 15 NWLR (pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence -Kaiyaoja Vs Egunla (1974) 12 SC 55, NITEL Plc Vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, Ezinwa vs Agu (2004) 3 NWLR (Pt 861) 431 Yusuf vs Adegoke (2007) 11 NWLR (Pt 1045) 332. Where a defendant does not counterclaim in an action for declaration of title the onus is on the claimant to first establish a prima facie case before consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC; Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Dike vs Okoloedo (1999) 10 NWLR (Pt 623) 359, Olisa vs Asojo (2002) 1 NWLR (Pt 747) 13; Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546. The trial Court refused the claims of the 1st Respondent, who was the Plaintiff before the trial Court. The Appellant/interested party has appealed to this Court, that the judgment of the trial Court delivered on the 27th March 2018, wherein he was not a party, touched his family’s rights and interests. He obtained leave of this Court to appeal as an interested party.

The law is trite that, the burden of proof in Suit No: ADSY/51/2013 lies squarely on the 1st Respondent (the Plaintiff) to establish and lead credible and unchallenged evidence to prove the following:
a) That Yokasala community consists of both Jauro Hammiwo family and Hamman Mamma family (Appellant’s family).
b) That there was a meeting to partition the land in dispute between the two families, and that the provisions of Section 2 of the llliterate Protection Law, CAP 67, Laws of Adamawa State, 1997, Vol. 2 has been complied with before Exhibit D was signed by the 2nd-5th Respondents’ family.
c) That there was another meeting where it was resolved that the land acquired by Yola South LGA belonged to Hamma Mamma family (The Appellant) and that it was agreed that Exhibits C and D be surrendered to the Appellant.

The 1st Respondent in the instant appeal is claiming declaratory reliefs therefore he must not rely on the weakness of the defence, and evidence of the 2nd-5th Respondents’ witnesses to get judgment in his favour. The Supreme Court in the case of A.I.C Limited v Nigerian National Petroleum Corporation (2005) LPELR-6 SC- held that “It is elementary principle of law, for which a citation of authority is not necessary, that the onus is on a Plaintiff to prove his case, and he must do so on the strength of his own case, and not on the weakness of that of the defendant.”

I have carefully perused 1st Respondent’s statement of claim in the record of appeal. There is no pleading to show that Yokasala community consists of Jauro Hammiwo, and Hamman Mamma families. 1st Respondent’s failure to plead and lead evidence on that fact is fatal to his contention that there are two families that made up Yokasala community.

The Appellant contended that there was a meeting to partition the land in dispute, where Exhibit D was authored. In paragraph 10 of their statement of defence 2nd-5th Respondents pleaded, that there has never been a meeting held in March, 2012, or any other date between them, and the family of the Appellant, and that they did not sign any document i.e Exhibit D. DW1, DW2, DW3, DW4 in their respective Statements on oath, proffered evidence in support of the pleaded facts in paragraph 10n of their statement of defence. I have studied the record of appeal, l cannot find where the 1st Respondent replied to the pleaded facts in the 2nd-5th Respondents’ statement of defence. Also, there is nowhere where the evidence of DW1, DW2, DW3 and DW4 were challenged. The learned trial Judge was right to admit the unchallenged evidence of 2nd-5th Respondents. In Niger-Benin Transport Co Ltd v Okeke 2005 ALL FWLR Pt 256 p 1286 ratio 10 this Court held:
“The law is most elementary that, generally, a fact not denied is deemed to have been admitted, and a Court of law is perfectly entitled to admit same without much ado”.

The learned trial Judge evaluated Exhibit D, correctly as evidence of partition of the land in dispute between the two families made on March 24th, 2012, where Jauro Hammiwo family was to take the portion from Dubbi southward, and Hamman Mama family from Dubbi eastward to Sebore Ndundu. And that the two families thereafter took possession of their respective portions given to them by the partition. The learned trial judge rightly pointed out-
“It is the Plaintiff now and his witnesses who are of the Hamman Mama family (save his son, PW2) that are contending that after the partition, when their boundary was established, it was discovered that the land acquired at Yokasala was theirs (the Hamman Mama family) and they were given the document of the land.
This evidence contradicts Exhibit D, which portioned the land between the two families, and also Exhibit B and C, the allocation letters to the Yokasala community.
Besides, if it required the two families, the necessity of a meeting to partition the land between them, a more serious meeting is required to alter, vary or change the content of Exhibit D, to now give exclusive ownership to the Hamman Mama family.
The allocation letters Exhibits B and C must also be changed to effect the new position. The establishing of the boundaries of the land acquired in Yokasala after Exhibit D would also suggest that the Hamman Mama family was not even privy to the acquisition of the land up to the allocation of an alternative land as compensation in Sebore village, even as the defendants are contending in paragraph 8 of the joint statement of defence.
This paragraph is affirmed by the testimonies of the defendants and their witnesses. DW3, in paragraph 8 of his statement on oath, DW4 in paragraph 8 of his statement on oath, likewise DW2 AND DW1, in paragraph 8 of their statements on oath.
The Plaintiff did not dispute or refute this paragraph of the joint statement of defence by a reply thereto and evidence in that regard. The evidence in support thereof has not been challenged nor contradicted.
In fact, by this, the Plaintiff has woefully failed to prove that the land in dispute belong to the Hamman Mama family, to the exclusion of the defendants’ family i.e the Jauro Hammiwo family.
…
As to the lawfulness of the purported sale of the land, having regard to Exhibit D, which evidence of the partitioning of lands between the two families, and the subsequent sale by the Hamman Mama family to the Plaintiff, the sale cannot be but unlawful.
The Plaintiff having failed to prove on the balance of probabilities or preponderance of evidence that the land in dispute is the exclusive property of Hamman Mama family, and also having failed to prove the sale of the land in dispute to him by the Hamman Mama family, was lawful, he has by the same token failed to prove any acts of trespass by the defendants.”

I agree with learned trial Judge that, both Exhibits D and E do not contain any illiterate jurat, and they are both in English language. From the evidence of PW6, the learned trial Judge deduced correctly that all the defendants (2nd-5th Respondents) are illiterates. Both Exhibit D, and E do not contain any Illiterate jurat. They cannot be enforceable having regard to the provisions of Section 2 and 3 of the Illiterates, Protection Law, Cap 62, Laws of Adamawa State, 1997 vol 2. The finding of the learned trial Judge, that Exhibit D as it is cannot be enforceable against the defendants is unassailable. The well reasoned judgment is one which should not be disturbed.

The appeal is unmeritorious. It is therefore hereby dismissed.

I affirm the judgment of the Adamawa State High Court delivered on the 27th March in Suit No: ADSY/51/2013 by Hon Justice l. K. Banu.
I access costs at N100,000:00 in favour of the 2nd -5th Respondents.

CHIDI NWAOMA UWA, J.C.A.: I read before now, the draft judgment delivered by my learned brother FATIMA OMORO AKINBAMI, JCA. His lordship has comprehensively and adequately resolved all the issues for the determination of the appeal. I adopt his reasoning and conclusion arrived at as mine in dismissing the appeal for lacking in merit.

I also affirm the decision of the lower Court delivered on the 27th March, 2018 in suit No: ADSY/51/2013 by Hon. Justice I.K. Banu.

I abide by the order made as to costs by my learned brother in the leading judgment.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have the opportunity of reading the draft judgment just delivered by my learned brother, FATIMA OMORO AKINBAMI, JCA. I agreed with his lordship’s resolution and issues reached therein to dismiss the Appeal.
I abide by the order as to costs.