ALH. AMADU KANKIA BELLO & ORS v. ALH. MA’ARUF UMAR SANDA & ORS
(2011)LCN/4581(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of May, 2011
CA/K/256/09
RATIO
DECLARATION OF TITLE: WHETHER THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE RESTS ON PLAINTIFF AND WHETHER HE CAN RELY ON THE EVIDENCE ADDUCED BY THE DEFENDANT
it is clear that question of title over the said house lying and situated at Unguwar Madawaki, Katsina was a controversial issue between the parties. It had been long established and restated in innumerable cases that in situations such as that, the onus is on the Plaintiff to prove his ownership of the house in respect of which he instituted an action for declaration of title, and, that the onus never shift. To succeed, the Plaintiff must rely on the strength of his case and not on the weakness of the Defendant’s case except when the evidence adduced by the Defendant clearly supports his claim in the suit. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
OWNERSHIP OF LAND: WHETHER WHERE THE LAND IS SAID TO HAVE BEEN DERIVED BY GRANT THE PLEADINGS MUST AVER FACTS RELATING TO THE FOUNDING OF THE LAND IN DISPUTE
It is settled that where title to land is said to have been derived by grant or inheritance the pleadings must aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession and persons on whom title in respect of the land had devolved since the first founding. See Iroagbara vs. Ufomadu (2009) 11 NWLR Part 1153 p.587. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
ROOT OF TITLE: POSITION OF THE LAW WHERE A PARTY PLEADS AND TRACES THE ROOT OF HIS TITLE TO A PARTICULAR PERSON OR FAMILY
…it is the law that once a party pleads and traces the root of his title to a particular person or family, that party, in order to succeed, must establish how that person or family derived his or its title to such land. In other words, that party must not only plead and establish his title to the land, he must also, plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute. It is only if the person from whom he derived his title has a valid title to such land that he may lawfully pass on such title to anyone else. If the title of his vendor or grantor is defective and non-existent, then, obviously, he will have no valid title to pass to anybody. See Nwadiogbu vs. Nnadozie (2001) 12 NWLR Part 727 p. 315 where it was opined that failure by the Respondent whose root of title was vigorously challenged by the Appellants to establish both his title and that of his vendors, the Umugagwo family, was fatal to his case. See also Irolo vs. Uka (2002) 14 NWLR Part 786 P. 195. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
TITLE TO LAND:WHETHER WHERE A CLAIMANT PRODUCES AN INSTRUMENT OF GRANT THE COURT WILL AUTOMATICALLY DECLARE IN HIS FAVOUR, THE PROPERTY WHICH THE INSTRUMENT PURPORTS TO GRANT; FACTORS THAT MUST BE CONSIDERED WHERE A PARTY RELIES ON AN INSTRUMENT TO PROVE TITLE TO LAND
One of the recognised ways of proving title to land is by production of valid documents evidencing grant. However, it does not mean that once a claimant produces an instrument of grant he is automatically entitled to a declaration that the property which the instrument purports to grant is his. Production and reliance on an instrument of grant inevitably carries with it the need for the Court to inquire into some or all of a number of questions including: (a) whether the document is genuine and valid; (b) whether the document has been duly executed, stamped and registered; (c) whether the grantor has the capacity and authority to make the grant; (d) whether the grantor had in fact what he purported to grant; and (e) whether it had the effect claimed by the holders of the instrument. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
DOCUMENTARY EVIDENCE: CONSEQUENCE OF AN UNSIGNED DOCUMENT
… in Omega Bank (Nig) Plc. vs. O.B.C. Ltd. (supra), it was expressly stated that a document not signed or addressed to any party is a worthless document which does not have the efficacy of law. It was further established therein that where a document is not signed, it may not be admitted in evidence, the Court should not attach any probative value to it because a document which is not signed has no origin in terms of its maker. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. ALH. AMADU KANKIA BELLO
2. YALWA MADANI
3. UMMA KANKIA BELLO Appellant(s)
AND
1. ALH. MA’ARUF UMAR SANDA
2. ALH. KANO UMAR SANDA
3. ALH. NAYAYA BINDAWA
4. ABU NATSAGERO
5. ALH. IBRAHIM TURAJI
6. ALH. BATURE TURAJI
7. ALH. MUSA TURAJI
8. HAJIYA INDO DANBINDI ALU Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): By the pleadings of the Appellants filed before the High Court of Katsina State in suit No. KTH/46/2007 on 9/4/2008, they sought the following reliefs:
“a. A declaration that the house lying and situated at Unguwar Madawaki Katsina belongs to the heirs of late Kankia Bello.
b. A perpetual injunction restraining the Defendants, their agents, privies, assigns or any body from raising any claim over the house.
c. General damages”.
Pleadings were settled in accordance with the Civil Procedure Rules of High Court of Katsina State, after which the matter proceeded to trial with the Appellants calling five witnesses, while eight were called by the Respondents. After hearing the evidence and evaluating the same, the trial Court came to the conclusion that the Appellants failed to prove their case and consequently dismissed their claims. The Appellants, as the Plaintiffs, appeared to have been so outraged at the said decision that, they, within the period prescribed, filed this appeal.
The questions raised for the resolution of this Court in the Appellants’ Brief of Argument are in like manner:
” 1 . Whether the Appellants have proved their case before the lower Court.
2. Whether the lower Court is right when it used minutes of meeting, that is Exhibits C and C 1 as a basis for its judgment.
3. Whether the lower Court is right when it failed to consider Exhibits (a) and (a)(1) before passing its decision.
4. Whether the lower Court was right to hold that “… as the minutes of meeting contained in Exhibits C, and C I having been signed the Magaju Garin Katsina, and, the 1st Plaintiff was at the meeting and he fails to produce Exhibits A and A1 at the said meeting goes to show that the production of Exhibit A and Al before this Court is suspect … ”
The Respondents, rather, presented one issue for consideration of this Court, that is to say; “whether having regards to the evidence before the Court as well as the Plaintiffs’ Statement of Claim, they are entitled to the reliefs claimed”.
Learned Counsel for the Appellants, Ahmed Danbaba Esq; submitted that by the evidence adduced at the trial Court, it was shown how the land in question belonged to late Mallam Yero (former Emir of Katsina), and how the house devolved on them from their late father Kankia Bello. He further referred to Exhibits A and A1 and the evidence of P.W.4 who explained how Exhibit A was handed over to him by his elder brother, Alhaji Maccido, and further placing reliance on the case of Usman vs. K.S.H.A. (2007) 11 NWLR Part 1044 p. 148 at 198 paras E-F and section 124 of the Evidence Act Cap E14, Laws of the Federation of Nigeria, 2004, Counsel stressed that the burden placed on the Appellants was on the balance of probability or on the preponderance of evidence, and since the document, i.e. Exhibit A was over 20 years and produced from proper custody, it ought to have been the basis of the lower Court’s judgment. He recounted the five ways long established for proving title or ownership of a land as was restated in Lawson vs. Ajibulu (1997) 65 CNJ p. I at 13 paras 15-25.
Counsel further stressed that the evidence of the Appellants that their late father, Kankia Bello lived and died in the house and that the 1st Appellant was put in possession by their late father, Kankia Bello was admitted by D.W.1, D.W.2, D.W.3, D.W.4 and D.W.8 and then urged that the first issue be resolved in favour of the Appellants.
With regard to issue No. 2, learned Counsel emphatically stated that no evidence of any kind was adduced before the lower Court either through the Respondents or D.W.6 via whom Exhibits C and C1 (minutes of meeting) were tendered tending to show that any meeting of any sort was held between the Respondents and the 1st Appellant, and, at which, minutes were recorded and also authenticated by the 1st Appellant. He, therefore, argued that the trial Court was in serious error when it hinged its decision on the said minutes of meeting and failed or refused to consider the material evidence presented by the Appellants before it.
Turning to issue No. 3, Counsel reiterated his argument in respect of issue No. 1 and then urged that the appeal be decided in favour of the Appellants.
Arguing in respect of issue No. 4, learned Counsel expressed that the document pleaded by the Respondents was an agreement reached in 2002 between the parties, but, not minutes of any meeting. He stated in categorical terms, that no minutes of any meeting was pleaded by the Respondent, yet, the trial Court relied on the unpleaded document to form its decision. Learned Counsel made references to Black’s Law Dictionary, 8th Edition, p. 1018 and Osborne’s Concise Law Dictionary, 7th Edition, by Roger Bird p. 21 where the phrases or terms; ‘minutes of meeting’ and ‘agreement’ were defined and then asserted that the two are distinct and different to each other and, as such, could not have been mistaken for one another. He argued it was wrong for the trial Court to have held that Exhibits C and C1 were genuine; having been signed by Magaju Garin Katsina and the 1st Plaintiff who was in attendance. He referred to Ladipo vs. Ajani (1997) 8 NWLR Part 517 p.356 at 365 para. B and submitted that evidence of facts not pleaded goes to no issue as the Parties are bound by their Pleadings.
He then urged that this appeal be allowed.
Submitting in respect of the lone issue raised in the Respondents’ Brief of Argument, their Counsel, Abdul Aliyu Esq, firstly, cited the case of John Owhonda vs. Alpanso Chukwuemeka Okpechi (2003) 15 NSCOR p. 279 at 283 paras. C-D where the Supreme court opined that in an action for declaration of title to land, where a plaintiff fails to discharge the burden of proving his root of title as pleaded by him; he cannot be entitled to the declaration sought. He cannot also fall back on long possession and of ownership to prove title. He must first, prove a valid root of title to be able to claim title on acts of ownership or long possession. He, therefore, drew attention to some parts of testimonies of P.W.1 and P.W.2 where they respectively stated, relating to their root of title; thus: “I don’t know how Yero come about the ownership of the house” and, “I don’t know how he came into possession. I only knew that he was in the house since 1906”, and then contended that the trial Court was right to have held that the Appellants did not prove root of title and therefore could not fall back on long possession or ownership.
Commenting on the substance of Exhibits A and A1 which he described as document containing a gift to the father of the Appellant purportedly, made on the 13th of Shawal 1306 and which bears no signature of the donor or any witness to the said gift’ he explained that by the present Islamic calendar which is now 1431 AH, the document is about 125 years old, yet nobody except the Appellants were aware of its existence even when the parties met to treat the property as that of late Sarki Katsina Musa. He relied on a Hadith of the Prophet (PBUH) as reported in the Book, entitled “Bulugh Al-Maram Miu Adillat Al-Ankam” (2003) vol. 1 pages 345 – 346 and submitted that no gift shall be valid unless it is made in the presence of witnesses. He contended that Exhibit Al being the English translated version of Exhibit A has no name of any witness on it, and as such, it is invalid, and, he urged the Court to hold the same.
Counsel further argued that to constitute a valid gift under the Islamic Law, about three conditions must be satisfied as expressed in the case of Maikano Hari Aiyo & Tsoho vs. Da’ado (1990) 1 ILR p. 60 at 63. They are:
(a) A declaration of the gift by the donor
(b) Acceptance of the subject matter of the gift by the donee himself or by his agent.
(c) possession should be delivered by the donor.
He contended that Exhibits A and A1 are bereft of these conditions and that the parties being Muslims were bound by the principles of Shariah.
On the fact of traditional history relied upon by the Appellants, Respondents’ Counsel stressed that to succeed on that, the Appellants must plead and establish such facts as who founded the land and the particulars of the intervening owners through whom they claimed. He cited the cases of Nwokorobia vs. Nwogu (2009) 38 Part 1 p. 142 at 162 paras. G-H (incomplete citation), and Iroagbara vs. Ufomadu (2009) 38 Part 11 p. 222 at 236 paras A-D (citation incorrect) and stressed that it was neither pleaded nor given in evidence of the Appellants, the name of the person who founded the land and persons on whom title in the land had since devolved before the claimants, came across the same. He contended that the Appellants did not prove radical title as P.W.1, P.W-2 and P.W.3 could not prove how Mallam Yero acquired the house in dispute.
Learned Counsel for the Respondents strenuously argued that at the meetings held by the descendants of Sarki Musa, and at which minutes were recorded in Exhibits C and C1 respectively, it was agreed that the house, the subject matter of the dispute, remained the properly of Sarki Musa; and that, no part of it shall be sold or had any structure erected thereupon; and that, any member of Sarki Musa Dynasty can stay in the house. He emphasized that Exhibit C1 was authenticated by the representatives of Sarki Musa family and the traditional rulers including the Magaju Garin Katsina, (as he then was), the present Emir of Katsina. Counsel argued that as Muslims, the parties were obligated to adhere to the terms of the agreement contained in Exhibits C and C1. Counsel explained that the only circumstance as stated in the Bulugh Al- Maram Miu Adillot Al – Ankam (2003) Vol. 1 p. 328 at para. 896, when a person may opt out of an agreement or can refuse to honour the terms is when the terms permit something which is unlawful or prohibit the carrying out of something which is lawful. He quoted Amro Bin Awfal – Muzani (RAA) as saying that “reconciliation is permissible between Muslims, except one which makes something that is lawful (Halal) as unlawful or makes something which is unlawful (Haram) as lawful. Muslims are to adhere to their terms (conditions) save a term which is unlawful (Haram) or prohibit something which is lawful (Halal)”. on the strength of this, counsel contended that the parties herein, as Muslims, were duty bound to keep to the terms of Exhibits C and C1 as what was done in the same amounts to reconciliation (Sulhu).
He insisted that the 1st Appellant attended the meeting at which he even asked a question. Counsel alleged that the 1st Appellant deliberately concealed the existence of Exhibits A and A1 at the meeting. He argued that the 1st Appellant cannot afterwards deny attending the meeting as it was mandatory on him and others who attended the meeting to abide by their agreement thereat as decreed by Islamic Law. He finally referred to the book; entitled ‘Guide to Advocacy – A translation And Commentary’ on Tuhfatul Hukkam (2003) 1 p. 165 paragraph 322 where it says that settlement, voluntarily entered between parties may not be rescinded even if the parties agree to do so, they are compelled to honour it, and, then, submitted that b), Exhibits C and C t having been pleaded and evidence led to support the same, the Appellants are estopped from dissociating themselves from the terms contained therein. He urged this Court to dismiss this appeal for lacking in merit.
In considering this appeal, I feel it more expedient to resolve together, issues 1 and 3 propounded in the Appellants’ Brief of Argument which are; whether the Appellants have proved their case before the lower Court, and, whether the lower Court was right when it failed to consider Exhibits A and A1 before passing its decision.
Relief No. 1 claimed by the Appellants is clear as to what it intended to achieve. i.e. for an order of declaration of title in the said house in favour of the Appellants. By every ramification, it is clear that question of title over the said house lying and situated at Unguwar Madawaki, Katsina was a controversial issue between the parties. It had been long established and restated in innumerable cases that in situations such as that, the onus is on the Plaintiff to prove his ownership of the house in respect of which he instituted an action for declaration of title, and, that the onus never shift. To succeed, the Plaintiff must rely on the strength of his case and not on the weakness of the Defendant’s case except when the evidence adduced by the Defendant clearly supports his claim in the suit.
I must now examine the evidence tendered by the Appellants at the trial Court. In trying to discharge the onus placed on them by the law, the Appellants produced before the trial Court five witnesses who testified as P.W.1, P.W.2, P.W.3, P.W.4 and P.W-5. One Yahwa Bello testified as P.W.1 and claimed that she knew Alhaji Kankia Bello, Alh. Usman Ma’aruf Umar Sanda and all the Defendants. She knew the house in dispute, she was born there and she grew up in it. She said they inherited the house from their father, Kankia Bello.
Under cross examination, P.W.1 said inter-alia that she heard about the owner, one Muhammadu Yero. She, also, heard that Sarki Musa was the father of Sarki Yero but she did not know Sarki Musa.
Further, she did not know how Yero came about ownership of the house. All she knew was that, Kankia Bello inherited the house from his father.
P.W.2, Moh’d Sani Liman, a 72 year old, said he knew the parties in the case and the house in dispute which is located at Unguwar Madawaki in Katsina town. He stated that the house belonged to Kankia Bello, the father of Maccido and Alhaji Ahmadu, the 1st plaintiff. He was raised by Alh. Mallam Maccido, the elder brother of Alhaji Ahmadu from 1965. He then explained how the children of Kankia Bello both males and females shared his estate.
In his cross – examination P.W.2 said that Kankia Bello who stayed in the house first before Maccido, inherited the house from Mallam Sarki Yero and he was in the house since 1906, and the house was called Gidan Kankia. He knew the father of Mallam Yero, the former Emir of Katsina who was called Sarki Musa, but Sarki Musa stayed at the Emir’s palace when he was Emir of Katsina. He stated that the 1st Respondent, Alhaji Ma’aruf was present in 1980 when the estate of Kankia Bello was shared by his heirs, but Alhaji Ma’aruf Umaru Sanda was not by Kankia Bello or Sarki Musa.
One Shittu Umaru, a 66 year old, gave evidence as P.W.3. He identified the Plaintiffs as his parents and said that the house situated at Unguwar Madawaki was originally owned by their father, Muh’d Bello Kankia. Binta was his mother who had other relations named Balarabe, Abu, Yahoa, Umma, Alh. Maccido, Alh. Balarabe. He explained that the house was shared amongst the heirs and heiresses about 26 years then, at the direction of Sarki Katsina Usman Magogo. He mentioned Alhaji Maaruf, Wakilin Arewa, Mai – Unguwa Turaji, Madani, Ali. His mother was the one who handed down to them the story of how everything was shared and who obtained what. He later said it was Alkali Mai-nasara who ordered the sharing.
Under cross – examination he said he knew Muh’d Bello Kankia since he was small and that Kankia Bello inherited the house from his father Sarki Yero. The house was called Gidan Kankia and Binta was a sister to Kankia Bello.
Testifying as P.W.4 was Alh. Ahmadu Kankia Bello, who was then 82 years, and, one of the Plaintiffs. He said the house in dispute was given to his father Kankia Bello by his grandfather, the Emir of Katsina, Mallam Yero, and his father bequeathed that to him and his deceased brothers. He said his late brother was Maccido Bello. His grandfather gave the house to Muhammadu Bello Kankia. When their father was getting old, he gave to them, i.e., P.W.4 and his elder brother, the document via which his (their grandfather) gave the house to him (their father). He identified the said documents written in Arabic letters and later translated to English language and tendered them as Exhibits A and A1 respectively.
During his testimony under cross – examination, he said his father died about 66 years ago then and after his death they shared all his property including himself, his brother Maccido and six sisters. He got a plot and then a room in the said house. He admitted that the one translated copy of the said letter does not bear the name of the interpreter. He was also asked that the original letter does not bear the signature of any person nor a date. He explained that the date was written. He admitted that Sarki Musa had four children including Mallam Yero, and that the father of his grandfather was the Emir of Katsina. When asked to tell the Court the palace of Emir Musa when he was Emir of Katsina, he answered, he didn’t know!
He was also asked that the said house was popularly known as Gidan Sarki Katsina Musa, he said he was not aware.
One 65 year old Lawal Usman, who described himself as a retired judicial officer gave evidence as P.W.5. He was Area court Judge Grade I. He said he knew Alhaji Ahmadu Bello Kankia and Alhaji Ma,aruf who were there in court, that he (Alhaji Ma’aruf), was a brother to Alhaji Ahmadu. He could recall there was a dispute over the said house situated at Sansani, Unguwar Madawaki, between 1980 and 1981, when he was a Registrar at Senior Area court Nos. 1 and 2. that were presided over by Alh. Mainasara and Yusuf Babba respectively. The case, was initiated by one of the sisters of Alh. Ahmadu who sued him over their father’s inheritance. The summons issued therein was tendered as Exhibit B. Later, the Judge visited the house in dispute and distributed it but, he, P.w.5 was not present thereat.
Further, I would turn to the pleadings of the parties. Pleading in respect of their root of title, the Appellants averred at paragraphs 1 – 8 of their Statement of Claim thus:
“1. The Plaintiffs are the descendants of late Mallam Yero, the former Emir of Katsina and they all reside in Katsina within the jurisdiction of this Court.
2. The Defendants are also descendants of late Mallam Musa Ibu Umaru Dallaje, former Emir of Katsina.
3. That sometimes in the year 1905 late Mallam Yero gave his house to late Kankia Bello through a letter written in Arabic alphabets. A copy of the letter and its translated English version are hereby pleaded.
4. That after the house in question was given to late Kankia Bello, he lived in it for over 40 years
5. The Plaintiffs aver that Kankia Bello died and left behind Alh. Ahmadu, Yalwa Madani, Umma, Alh. Maccido, Binta, Larai and Abu
6. The Plaintiffs aver that sometimes in 1981 , Larai, a daughter to Kankia Bello took the issue of inheritance of the house in dispute to Area Court No. I Katsina, wherein she sued the 1st Plaintiff and the heritage was shared to all the heirs of the late Kankia Bello. Record of proceedings of the Court and its English translated version are hereby pleaded.
7 . That Defendants never raised any claim over the house during the life time of Kankia Bello or when the matter was taken to Area Court No. 1 Katsina, although they are all aware of the suit.
8. The Plaintiffs aver that since the demise of Kankia Bello they have been in quiet, peaceful possession of the house and have been repairing and rehabilitating it without being challenged by the Defendants or any body”.
It is crystal clear in the pleadings of the Appellants and the evidence adduced by them, that their claims were pivoted on inheritance which borders on traditional history, and, a document allegedly given to their own father by their grandfather. It is settled that where title to land is said to have been derived by grant or inheritance the pleadings must aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession and persons on whom title in respect of the land had devolved since the first founding. See Iroagbara vs. Ufomadu (2009) 11 NWLR Part 1153 p.587.
Further, in Dim vs Enemuo (2009) 10 NWLR Part 1149 p.353, the case of Mogaji vs. Cadbury (Nig) Ltd (1935) 2 NWLR Part 7 p.393 was referred to. It may also be necessary to draw attention to the case of Dagaci Dere vs. Dagaci of Ebwa (2006) 2 NWLR Pt.979 p.382. where it was stated by the Supreme Court, per Tobi, JSC said that in land matters, it is easy for a Plaintiff to claim that he owned the land from time immemorial. But that is not the end of the story. The story must go further and paint a genealogical tree of the family ownership of the land. It is usually a long story of the members of the family in ownership of the land from the past to the present. The plaintiff paints a picture of genealogical lines and names spreading like the branches of a tree, telling a consistent and flowing story of undisturbed ownership or possession of the land. And the flowing story which should first be told in the pleadings should mention specific persons as ancestors before the witnesses give evidence in Court to vindicate the averments in the pleadings.
Further, it is the law that once a party pleads and traces the root of his title to a particular person or family, that party, in order to succeed, must establish how that person or family derived his or its title to such land. In other words, that party must not only plead and establish his title to the land, he must also, plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute. It is only if the person from whom he derived his title has a valid title to such land that he may lawfully pass on such title to anyone else. If the title of his vendor or grantor is defective and non-existent, then, obviously, he will have no valid title to pass to anybody. See Nwadiogbu vs. Nnadozie (2001) 12 NWLR Part 727 p. 315 where it was opined that failure by the Respondent whose root of title was vigorously challenged by the Appellants to establish both his title and that of his vendors, the Umugagwo family, was fatal to his case. See also Irolo vs. Uka (2002) 14 NWLR Part 786 P. 195.
I had earlier on set out the facts pleaded by the Appellants showing their root of title. It was depicted in their pleadings that they were the descendants of late Mallam Yero. Then, in 1905 late Mallam Yero gave the house to late Kankia Bello vide a letter written in Arabic but later translated to English. By their pleadings, the 1st Appellant and 3rd Appellant were all children of late Kankia Bello. Mallam Yero was their grandfather. Surprisingly, the Appellants did not show by their pleadings and evidence before the Court how the said house devolved on their grandfather, Mallam Yero. They did not trace the history of the said house beyond their grandfather.
P.W.1, Yalwa Bello, who asserted that they inherited the house from their father Kankia Bello could not tell the trial Court in her evidence how Yero, her grandfather acquired the house, whether it was by inheritance, purchase or settlement. She told the Court, she did not know how Yero came about ownership of the house.
One of the recognised ways of proving title to land is by production of valid documents evidencing grant. However, it does not mean that once a claimant produces an instrument of grant he is automatically entitled to a declaration that the property which the instrument purports to grant is his. Production and reliance on an instrument of grant inevitably carries with it the need for the Court to inquire into some or all of a number of questions including:
(a) whether the document is genuine and valid;
(b) whether the document has been duly executed, stamped and registered;
(c) whether the grantor has the capacity and authority to make the grant;
(d) whether the grantor had in fact what he purported to grant; and
(e) whether it had the effect claimed by the holders of the instrument.
In the instant appeal, Exhibit A1, the translated English version of Exhibit A tendered by the Appellants reads:
“In the Name of God the beneficent and the merciful Peace be upon the messenger of God I the emir of Katsina Muhammadu Bello Yaro give my house to Kankiya Muhammadu Bello the one I vacate at Sansani from today 13th day of Shawwal 1306.
CERTIFIED TRUE TRANSLATION
SIGNED
23/04/09”.
Exhibit A1, clearly, indicates that the alleged letter of Gift was neither authenticated by the said donor, Emir of Katsina, Muhammadu Yaro nor was the alleged act of gift i.e., gesture, witnessed by any person. It is instructive to note that the Court’s attitude to an unsigned document is that not a single weight should be attached to it, as such document, could easily have been prepared by a person other than the one who is alleged to have made the same or could have emerged from another source. The fact that Exhibit A bore a date notwithstanding, as date, and, signature authenticating a document are two distinct facts. If Exhibit A, the one written in Arabic were indeed signed, then, when a question as to whether the document was signed or not, was thrusted at P.W.4 under cross-examination, P.W.4 should have, spontaneously, answered affirmatively, rather than saying only, “there is the date it was written”. No mention whatsoever was made by him about any signature.
Furthermore, in Omega Bank (Nig) Plc. vs. O.B.C. Ltd. (supra), it was expressly stated that a document not signed or addressed to any party is a worthless document which does not have the efficacy of law. It was further established therein that where a document is not signed, it may not be admitted in evidence, the Court should not attach any probative value to it because a document which is not signed has no origin in terms of its maker.
Therefore, quite apart from the ground relied on by the trial Court for its non-consideration of Exhibits A and A 1 . the said Exhibits should not have, in the light of the decisions aforestated, been given a hoot, as they were worthless and incapable of forming the basis of any interest in land or being sufficient to prove bequeathing or transfer of any land to Kankia Bello by Mallam Yero as insinuated by the Appellants.
I would therefore, on the authority of Omega Bank (Nig.) Plc. vs. O.B.C. Ltd. (2005) 8 NWLR Part 928 p. 547 agree with the trial Court’s refusal to countenance Exhibits A and A1 . First and foremost, Exhibit A was said to have been written in Arabic Language, and, that being not the language of this Court, it would have been horrendous and inappropriate in law for the document not written in the language of the Court, i.e. English language, to have been examined by the trial Court. See Kankia vs. Maigemu (2003) 6 NWLR Part 812 p. 196. Exhibits A and A1 should, therefore be disregarded.
To further examine the basis of the Appellants’ claim over the said house in question, the next point that needs consideration is; “whether the Appellants, having failed to establish their root of title via traditional history beyond Mallam Yero, and, too, via the letter allegedly given to their father, Kankia Bello as ‘Gift’ by Mallam Yero, can rely on acts of ownership and possession, as the trial Court held, to prove their title to the house”?
The established law is that the Plaintiff’s root of title ought to be proved before acts of ownership could be considered by the trial Court. See Obioha vs. Duru (1994) 8 NWLR Part 365 p. 631 where the Supreme Court per Onu, J.S.C. at 645, said:
“One cannot really talk of acts of ownership without first establishing that ownership where a party’s root of title is pleaded. That root of title has to be established first and any consequential act following thereupon can then be properly qualify as acts of ownership”.
See also Ndukuba vs Izundu (2007) 1 NWLR Part 1016 p.432 at 448 per Thomas J.C.A. See Ngene vs. Igbo (2000) 4 NWLR Part 651 p. 131 at 146 – 147 where the Supreme Court stated that a party who relies on a known root of title must prove that root of title and cannot rely on acts of possession in proof thereof.
It, therefore, follows that an appellate Court has no business to accept acts of ownership in a case where the same party as done by the Appellants, in the instant appeal, could not establish their root of title or genealogy over the land.
Therefore issues Nos. 1 and 3 are hereby resolved in favour of the Respondents.
In resolving issues Nos. 2 and 4, it is pertinent to observe that the Appellants and their witnesses endeavoured, though, fruitlessly, to obliterate or conceal their connection with Sarki Musa, the father of Mallam Yero. The name Sarki Musa was not mentioned in their pleadings as having any blood relationship with them. It was only at paragraph 2 of their Statement of Claim, it was averred that the Defendants are also descendants of late Mallam Musa Ibm Umaru Dallaje, former Emir of Katsina. From the parties’ pleadings and their evidence, it was only the Defendants i.e. the Respondents, who were portrayed as having family link with the said Mallam Musa.
The Respondents in their Joint Statement of Defence expressed thus:
“1 . The Defendants admit paragraphs 1, 2 and 5 of the Statement of Claim to the extent that both the Plaintiffs and the Defendants are descendants of Sarki Musa, the former Emir of Katsina, who was also the father of late Mallam Yero, also a former Emir of Katsina.
2. The Defendants deny paragraph 3 of the Statement of Claim and will contend at the trial the house, the subject matter of this suit was never owned by late Mallam Yero, but belong to late Sarki Musa who was the father of late Mallam Yero, and late Mallam Yero did not transfer the title of the house the subject matter in dispute to late Kankia Bello through whatever means at anytime during his life time.
3. The Defendants further deny paragraph 4 of the Statement of Claim and will contend at the trial that the house in question was neither given to late Kankia Bello nor did he ever live in it for 40 Years.
4. The Defendants in further denial of paragraph 6 will contend at the trial that Area Court No. 1 Katsina never adjudicated over the house on an issue of inheritance.
5. As regards to paragraphs 7, 8 and 9 of the Statement of Claim the Defendants will contend at the trial that the issue of not raising any claim over the house when the matter was taken to Area Court No.1 Katsina and that Plaintiffs being in quiet and peaceful Possession’ and also repairing and rehabilitating the house, as false, untrue and fictitious, as the house was owned by late Sarki Musa, former Emir of Katsina who died and left behind four (a) children including Mallam Yero.
6. The Defendants will contend at the trial that they are also descendants of late Sarki Musa Bello, former Emir of Katsina who was the owner of the house in dispute and they are all Muslims.
7 . The Defendants will further contend at the trial that the house in dispute was popularly known as Gidan Sarki Musa, and since his demise it was kept as a family property, and never shared amongst his children.
8. The Defendants will contend at the trial that the late Sarki Musa died and left behind four (4) children namely: (1) Mallam Yero, (2 ) Iyan Katsina Mallam Tanko (3) Binoni Abdu and (4) Danbindi Alu who were grandparents of both the Plaintiffs and Defendants, except the 8th Defendant who is the daughter of Danbindi Alu, the son of Sarki Musa and a cousin to Mallam Yero, the grandfather of the Plaintiffs
9. The Defendants will equally contend at the trial that an agreement was reached in the year 2002 between the Plaintiffs and Defendants who are both descendants of Sarki Musa to the effect that the house in question will remain the house of late Sarki Musa’s family. The agreement will be relied upon at the trial”.
The facts lending support to Exhibits C and C1 were generously pleaded at para-graphs 5, 6, 7, 8 and 9 of the Respondents’ Joint Statement of Defence. It is trite law that a document does not have to be specifically pleaded so long as the facts upon which the document could be founded had been pleaded. See A.N.P.P. v. Usman (2003) 12 NWLR Part 1100 P. 1.
Exhibits C and C I tagged “minutes of meeting” needed not to have been specifically pleaded, provided there were facts averred in the Respondents’ Statement of Defence that related to the facts contained therein. As a matter of fact the contents of Exhibits C and C 1, even though not titled “Agreement” were more or less embodied as the understanding or decision reached at the meeting held on 15/7/1990 in respect of the House of Emir of Katsina – Musa IBN Mallam Umaru Dallaje which was recorded to have been equally attended by the 2nd Respondent and 1st Appellant.
Parts of pages 2,3 and 4 of Exhibits C1 read thus:
“… The meeting commenced after Isha prayer 8:00 pm. And we deliberated about the house of Emir Musa. It was stated that the house in question belonged to the Emir of Katsina dynasty.
The family of Emir of Katsina Musa are as follows:-
1 . The Emir of Katsina M. Yaro.
2. Binoni Abdu District head of (Bindawa) LGA.
3. Iyan Katsina, the District head of Mashi.
Danbindi Aliyu, the village head of Bindau’a.
After the deliberation, nobody said anything among the people in attendance but one person Alhaji Amadu Bello, when he said what is their position as regard the renovation exercise they have been doing year in, year out. Then Alhaji Ma’aruf answered him to the effect that you are doing the renovation exercise because you are living in the house, and that if you don’t renovate it rain shall force you out unprepared.
Then the meeting was closed with prayer at 9:30 pm.
Therefore any member of the Emir of Katsina Musa’s dynasty has the right to leave in it up to the time Allah has given him the opportunity to build his own and relocate. There shall be no construction of another gate and or sale, Example, Yarima house, is the house of Emir of Katsina Mohammed Bello, it still remained as a palace and Muhammed Bello was the elder brother of Musa. We are proud of this house.
NAMES OF SOME OF THE HEIRS
1. M. Alin Turaji
2. Alhaji Kano
3. Alhaji Bala
4. Alhaji Ma’aruf
5. Alh. Nayaya Bindawa
6. Alh. Abubakar Natsagero
7 . Alh. Abubakar Na Bindawa
8. Alh. Ibrahirn Turaji
9. Hajiya Indo Danbindi Bindawa
10. Alh. Bature Turaji
11. Mallam Musa Turaji
12. Mallam Aliyu Umar
13. Alh. Amadu Kankiya Bello
14. Mallam Muktari Danbindi
15. Mallam Ibrahim Danbindi
16. Mallam Umaru Mai Dallaje Bindawa
And others.
This document shall be an evidence to the dynasty of Emir of Katsina Musa may Allah bless us and unite us, all thanks is due to Allah it is something to be proud about by this dynasty since we are blessed with two palaces, the palace of Emir Katsina Muhammed Bello, his son Ibrahim became an Emir so also his grandchild Abubakar, then Emir of Katsina Musa his son M. Yaro Also became Emir, this is something to be proud about by the Dynasty of Mallam Umaru Dallaje, may Allah bless us and unite us Amin.
Therefore we agreed that this house shall remain a house belonging to the dynasty of Emir of Katsina Musa, therefore it is agreed that no sale and it is further agreed that nobody shall cut for the purpose of construction, whoever is interested can come and live.
Below are the signatures of parents and the endorsement of our leaders and signatures of witnesses even after our life times.
NAMES OF THE REPRESENTATIVES OF EMIR OF KATSINA MUSA’S DYNASTY
1. Alhaji Kano Signed
2. Alhaji Ma’aruf Signed
3. Alhaji Mamman Nayaya Bindawa Signed
4. Hajiya Indo Danbindi Alu Signed
SIGNATURES OF LEADERS
I . Makaj i Garin Katsina stamped and signed
2. Yariman Katsina stamped and signed
3. Wakilin Kudu
4. Mai Ungurva Sararin Kuka / Ungurvar Alkali signed
CERTIFIED TRUE TRANSLATION
SIGNED
3/6/09″.
It is clear that Exhibits C and C1 encompassed the facts pleaded at paragraphs 6. 7, 8 and 9 of the Respondents’ Statement of Defence and as such were relevant, admitted and ought to be considered by the trial Court. The contention that the 1st Appellant did not mention either in his evidence in chief or under cross-examination that he attended any meeting is totally immaterial and unguided because, after all, the Appellants neither pleaded nor did they reveal through their evidence before the lower Court, except, during the cross-examination of P.W.4, that they had any ancestral connection or relationship with the Respondents. The Appellants merely pleaded at paragraph 2 of their Statement of Claim that the Defendants are also descendants of late Mallam Musa Ibn Umaru Dallaje, former Emir of Katsina, without them pleading that they themselves were descendants of late Mallam Musa Ibn Umaru Dallaje, former Emir of Katsina. They concealed from their pleadings and evidence before the trial Court, the fact that Mallam Yero was the son of Mallam Musa who was an Emir of Katsina. It was towards the tail end of his cross-examination that Mr. Aliyu, learned Counsel for the Respondents put the following questions to the 1st Appellant who testified as P.W.4 and he answered thus:
Mr. Aliyu: You know that Mallam Yero was the son of Sarki Musa former Emir of Katsina.
PW4:- Yes
Mr. Aliyu:- Are you aware that Sarki Musa has 4 children including Mallam Yero or was he his only child?
PW:- Yes I know.
Mr. Aliyu:- You are also aware that at one time the father of your grandfather was Emir of Katsina.
PW4:- Yes
Mr. Aliyu:- Can you tell this Court the palace of Emir Musa when he was Emir of Katsina.
PW4:- I do not know
Mr. Aliyu:-Are you aware that the said house was popularly known as Gidan Sarkin Katsina Musa?
PW4: I am not aware”.
It is glaring from the record before us that, had Mr. Aliyu not put those questions to the 1st Appellant, who was, also, mentioned in Exhibits C and C1, the trial Court, and, even this Court, would not have had the opportunity of discovering those facts about his great grandfather Sarki Musa, otherwise, described as Mallam Musa, the Emir of Katsina. The 1st Appellant seemed to have feigned ignorance of the site where of his late great grandfather’s palace as the Emir of Katsina. Such a historical fact he pretended not to have known. He, also, appeared not to have been conversant or familiar with the name given to the house. For an elderly man of 82 years then, from such a royal family, not to have known the genealogy of his royal family really left much to be desired, and, made one to wonder if he, actually hailed from such a family, for I believe that no human with blue blood flowing through his vein would forget such history so easily, except there was a ploy to conceal, or as in the instant case, the 1st Appellant decided to keep mum about his great grandfather, Mallam Musa, former Emir of Katsina.
There was no indication on the record that he had a memory problem or that he was on the verge of senility. The point is that the evidence adduced by the Appellants did not reveal or prove how Mallam Yero, the grandfather of the Appellants acquired the house, before allegedly bequeathing the same to his son, the father of the Appellants, through an unsigned and unwitnessed land document.
The remark made by the trial Court regarding the signatories to Exhibits C and C1 and non – production of Exhibits A and A1 appear to me, as ordinary remarks that aided the Court in ascertaining the weight to be attached to the said documents or their probative value and to ascertain who to believe. An octogenarian coming from such a royal family ought to have known most of his ancestral homes since there was evidence they had not disappeared from the face of this earth. I am convinced that, had the historical existence of Mallam Musa, former Emir of Katsina, been given by the Appellants at the onset, it would have easily exposed the late Emirs connection or link with the said house in dispute, hence the silence on the part of the Appellants. Since Exhibits C and C1 were admitted in evidence by the trial Court, the Court was at liberty to make use of their contents. Accordingly, issues 2 and 4 are hereby resolved in favour of the Respondents. As I earlier mentioned, the Appellants having failed to prove or paint the ownership of the house, genealogy tree of their family, i.e., how Mallam Yero their grandfather acquired the said house, from who, or how it devolved upon him through their ancestors, and the authenticity of Exhibits A and A1, their pleaded root of title; cannot be permitted to rely on acts of possession and ownership that evolved from the alleged roots of title that have not been proved. The reasons marshalled in this judgment support the view that this appeal be dismissed outrightly for completely lacking in merit. In consequence thereof, this appeal will be and is hereby dismissed. The judgment of the trial Court dismissing the case of the Appellants in suit No . KTH/46/2007 is hereby affirmed. There will be no order as to costs.
JOSEPH TINE TUR, J.C.A.: I have read the judgment just delivered by my Lord Theresa Ngolika Orji-Abadua JCA and I wish to add the following reasons why the appeal lacks merit and is dismissed.
The Plaintiffs took out a writ of Summons against the defendants on 19-09- 2007. With leave of Court the Statement of Claim was filed on 09-04-2008 and a Joint Statement of Defence on 12-05-2008. The Statement of Claim reads as follows:
“STATEMENT OF CLAIM
I . The Plaintiff are the descendants of late Mallam Yero, the former Emir of Katsina and they all resides in Katsina within the jurisdiction of this Court.
2. The defendants are also descendants of late Mallam Musa Ibn Umaru Dallaje, former Emir of Katsina.
3. That sometimes in the year 1905 late Mallam Yero gave his house to late Kankia Bello through a letter written in Arabic alphabets. A copy of the letter and its translated English versions are hereby pleaded.
4. That after the house in question was given to late Kankia Bello, he lived in it for over 40 years-
5. The plaintiffs aver that Kankia Bello died and left behind Alh. Amadu, Yalwa Madani, Umma, Alh. Machido, Binta, Larai and Abu.
6. The Plaintiffs avers that sometimes in 1981, Larai a daughter to Kankia Bello took the issue of inheritance of the house in dispute to Area Court took Katsina, wherein she sued the 1st Plaintiff and the heritage was shored to all the heirs of late Kankia Bello. Record of proceedings of the court and its English translated version ore hereby Pleaded.
7. That the defendants never raised any claim over the house during the life time of Kankia Bello or when the matter was taken to Area Court No.1 Katsina although they are all aware of the suit.
8. The plaintiffs avers that since the demise of Kankia Bello they have been in quite, peaceful possession of the house and have been repairing and rehabilitant it without being challenge by the defendants or any body.
9. The plaintiff avers that the defendants are now raising a claim over the house, hence this suit.
WHEREOF the plaintiff claim against the Defendants are:
(a) A declaration that the house lying and situated at Unguwar Madawaki Katsina belongs to the heirs of late Kankia Bello.
(b) A perpetual injunction restraining the Defendants, their agents, privies, assigns or anybody from raising any claim over the house.
(c) General damages.”
The joint statement of defence responded as follows:
“DEFENDANTS’ JOINT STATEMENT OF DEFENCE
1. The Defendants admit paragraph 1, 2 and 5 of the statement of claim to the extent that both the plaintiffs and the defendants are descendants of Sarki Musa, the former Emir of Katsina, who was also the father of Late Mallam Yero, also a former Emir of Katsina.
2. The Defendants deny paragraph 3 of the statement of claim and will contend at the house, the subject matter of this suit was never owned by late Mallam Yero, but belong to late Sarki Musa who was the father of Late Mallam Yero, and Late Mallam Yero did not transfer the title of the house the subject matter in dispute to Late Kankia Bello through whatever means at any time during his life time.
3. The Defendants further deny paragraph 4 of the Statement of Claim and will contend at the trial that the house in question was neither given to Late Kankia Bello nor did he ever lived in it for 40 years.
4. The Defendants in further denial of paragraph 6 will contend at the trial that Area Court No.1 Katsina never adjudicated over the house on en issue of inheritance.
5. As regards to paragraph 7,8 and 9 of the Statement of Claim the Defendants will contend at the trial that the issue of not raising any claim over the house when the matter was taken to Area Court No.1 Katsina and that the Plaintiffs being in quiet and peaceful possession, and also repairing and rehabilitating the house, as false, untrue and fictitious, as the house was owned by Late Sarka Musa, former Emir of Katsina who died and left behind four (1) children including Mallam Yero-
6. The Defendants will contend at the trial that they are also descendants of Late Sarki Musa Bello, former Emir of Katsina who was the owner of the house in dispute and they are all Muslims.
7. The Defendants will further contend at the trial that the house in dispute was popularly known as Gidan Sarki Musa, and since his demise it was kept as a family property and never shared amongst his children.
8. The Defendants will contend at the trial that the Late Sarki Musa died and left behind four(4) children namely: (1) Mallam Yero(2) Iyan Katsina Mallam Tanko (3) Binoni Abdu and (4) Danbindi Alu who were grand parents of both the plaintiffs and defendants, except the 8th defendant who is the daughter of Danbindi Alu, the son of Sarki Musa and a cousin to Mallam Yero, the grand father of the plaintiffs.
9. The defendants will equally contend at the trial that an agreement was reached in the year 2002 between the plaintiffs and defendants who are both descendants of Sarki Musa to the effects that the house in question will remain the house of Late Sarki Musa’s family. The agreement will be relied upon at the trial.
WHEREOF, Defendants pray for the following:
A dismissal of all the reliefs sought by the plaintiffs on the ground that the issue involved a substantial interpretation and application of Islamic law Principles of inheritance between the parties.”
From the pleadings nothing is shown how Mallam Yero came to own the house in dispute before he gave it to Late Kankia Bello who lived there for forty years. In Sunday Piaro v. Chief Wopnu Tenalo & Ors (1976) 1 FNLR 229, Obaseki Acting JSC held at pages 234-235 as follows:
“It is now settled law that there are 5 ways in which ownership of land may be proved and only two of the 5 methods were adopted by the respondent in this case. They are
(1) Proof by traditional evidence (Abinabina v. Chief Enyimadu (1953) AC 207 at 215-216) and
(2) Proof by acts of ownership. This is normally provided by acts of person or persons claiming the land such as selling, leasing, renting out all or part of the land or farming on it or on a portion of it or otherwise utilizing the land beneficially: all evidence of ownership provided they extended over a sufficient length of time and are numerous and positive enough to warrant the inference that he is the true owner, Ekpo vs Ita, 11 NLR 68 at 69.
We find however in the pleadings and the evidence a total absence of facts about (1) the founding of Bomu village in general and Kporo, the land in dispute, in particular; (2) the persons who founded the land and exercised original acts of ownership and (3) the persons who have held title or on whom title has developed in respect of the land since the founding before the 1st plaintiff/respondent acquired control of the land on behalf of the community.
All these facts which are necessary for the proper determination of the issue raised are not provided by the sweeping assertion that “the land is communal land of Bomu people”. This leaves the traditional evidence in the air and it is fatal to plaintiffs’ claim. See F.M. Alade v. Lawrence Awo (1975) 4 SC 215 at 229. The demeanour of witnesses giving traditional evidence is no test of the truth or falsity of the evidence.
That statement that the land is the communal land of Bomu people can only be a conclusion or finding by the Court after proper, assessment and evaluation or appraisal of the evidence adduced before it. The proper approach is lo consider the activities of the parties in the exercise of their rights and decide whether it accords with the evidence of traditional history’ (Adenle v. Oyegbade (1967)
We are also unable to see an, evidence of acts of or series of acts of ownership exercised by the Bomu community or by the 1st plaintiff/respondent as paramount Chief on behalf of the community on the Kporo land or Kporo bush to warrant any presumption that the Kporo land is the communal land of the Bomu people. Not one of the witnesses testify that he aft sticks from the bush to prop up his yams or that he cut firewood and harvested palm fruit from the palm trees on the land with the permission of 1st plaintiff/respondent in accordance with the custom alleged. A general statement of custom of the people without evidence of the activities of the people in support of the custom is of no evidential value in proof of acts of ownership.
The other 3 modes of proof of ownership of land which we do not consider relevant lo this appeal but which are nevertheless settled by law are:
(1) Proof by production of documents of title which must be authenticated.
(2) Proof of ownership by acts of long possession and enjoyment in respect of the land to which acts are done.
Under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves good title – see Da Casta v. Ikomi (1968) I AII NLR 394 at 398- (3) Proof of possession of connected adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute, may rank also as a means of proving ownership of the land in dispute. See Section 145 of the Evidence Act and Higgs vs Nassauvian Ltd (1975) Ac 464.
In that case which went on appeal to the Privy Council from the Bahama Islands, the Board commented at page 474 (Sir Harry Gibbs, delivering the judgment of the Board as follows:
“It is clearly settled that acts of possession done on parts of a tract of land to which possessory, title is sought may be evidence of possession of the whole. In Lord Advocate v. Lord Blantye (1879) 4 App. Cas.770, 791, Lord Blackburn said:
“And all that tend to prove possession as owners of parts or the tracts tend to prove ownership of the whole tract, provided there is such common character of locality as would raise a reasonable inference that if the barons possessed one part, they possessed the whole. The weight depended on the nature of the tract, what kind of possession could be had of it and what the kind of possession proved that. ”
The pleadings have not shown when, who and how the land was acquired.. who first built the house in dispute before Late Mallam Yero take possession to later give it to late Kankia Bello in 1905? Was he the first to acquire the land and building? How did the land devolve after the death of Kankia Bello for the past 40 years and is now being claimed by the Plaintiffs/appellants? Surely, the land and the house in dispute did not fall from heaven: they must have been acquired or built by someone either Mallam Yero or someone else. Every land or house must have a beginning or a founder. See Ohiaeri vs Akabeze (1992) 2 SCNJ (Pt.1) 76; Igbojimadu vs Ibeabuchi (1989) 1 NWLR (Pt.533) 179 at 190-191. Where the defendants are in possession of the land in dispute, to oust them, the plaintiff must establish a better title. See Ukpa vs Utong (1991) 6 NWLR (Pt.197) 258 at 281; Ibuluya vs Dikibo (1976) 6 SC 97 at 102.
Occupation or possession of a portion of the disputed land for many years per se is not conclusive evidence of title. See Foti vs Akese 2 WACA 46 at 50-51 and Oladimeji vs Oshode (1968) 1 All NLR (Pt.1) 417 at 421-423.
The nature of title of Mallam Yero was not pleaded nor proved at the trial. See Okonkwo vs Okolo (1988) 5 SCNJ 128; Fasoro vs Beyioku (1988) 4 SCNJ 23; Bamgbose vs Oshoko (1988) 5 SCNJ 116 and Osafile vs Odi (1991) 2 SCNJ I at 15.
Whether the transaction was governed by Islamic, English or native law and custom was not pleaded. See Section 14(1)-(3) of the Evidence Act 1.990.
Yalwa Bello testified as PW1 at page 33 of the record of proceedings as follows:
“…I know all the defendants. I know the house in dispute it is our house. I was born in that house and I grew up there. I know nothing. I want our house. We inherited it from our forefather Kankia Bello.
Under cross-examination PW1 replied that:
“…I don’t know how Yero came about the ownership of the house. How can I know for how long he stayed in that house? Kankia Bello inherited the house from his father.”
Moh’d Sani liman testified as PW2. Under cross-examination he too gave evidence as follows:
“…Kankia Bello inherited the house from Sarki Mallum Yero. I don’t know how he came into possession. I only know that he was in the house since 1906. The house is called Gidan Kankia”
See page 35 lines 9-11 of the printed record’
From the pleadings and evidence adduced by the plaintiffs and their witnesses there was even no need for the defendants/respondents to have entered into a defence since the onus cast upon the plaintiff to adduce prima facie evidence of title to the disputed land was lacking in substance and credibility. I rely on the provisions of Section 137(1) (2) and 140(1)-(2) of the Evidence Act 1990 which reads as follows:
“137(1) In civil cases the burden of first proving the existence of or non-existence of a fact lies on the party against whom the judgment of the Court should be given if no evidence were produced on their side, regard being had to any Presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy, a jury 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.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence. xxxxx
140(1 ) The burden of proving any fact necessary be be proved in order:
(a) to enable a person to adduce evidence of some other fact; or
(b) to prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent the adduction of, such evidence, respectively.
(2) The existence or non-existence of facts relating to the admissibility of evidence under this Section is to be determined by the Court. ”
Having examined the pleadings and evidence on record, I share the views of the learned trial Judge at page 73 lines 6-8 of the printed record when he held that:
“…The plaintiffs have woefully failed to prove their case, the reliefs as contained in their writ cannot be granted the case is dismissed for lack of merit.
The learned trial Judge has support in a plethora of judgments of the Supreme Court one of which is Ukaegbu & 3 Ors vs Nwololo (2009) 1 NMLR 212 where Ogbuagu JSC held at page 222 that:
“Of course and this is also settled, when an attempt to prove a root of title .fails, ads of possession based on that root of title, cannot sustain a claim for title. See the case of Ayoola vs Odofin (1984) 2 SC 120 Ndukwe vs Acha (1955) 5 SC 28 at 38-39 and Dada Dabo vs Alhaii Abdullahi (2005) 2 SCNJ 76; (2005) 2 sc (Pt.1), just to mention but a few.”
On the whole this appeal lacks merit and is dismissed. The judgment of the learned trial Judge is affirmed. I abide by the orders for cost made by my Lord. Theresa Ngolika Orji-Abadua JCA.
OBANDE OGBUINYA, J.C.A I had the opportunity of reading, in draft, in the leading judgment delivered by learned brother, T.N Orji-Abadua. JCA. and I concur with her reasons and conclusions. The facts, issues and arguments in this appeal are sufficiently set out in the leading judgment. It is, therefore, pointless to replicate them.
From the appellant’s pleadings, they grounded their root of title on inheritance which translates as traditional history – one of the cardinal ways of proving title to land in the Nigerian legal system. In this regard, they are saddled with the onerous responsibility of pleading and proving genealogy a chain of devolution of the property in question right back to the original owner. See Odunukwe v. Ofomata (2005) 18 NWLR (pt.958) 523.
In law, since the appellants anchored their clain to traditional history, they, must sink or swim with it. Where they fail, as they did to plead and establish this mode of proving title to land, they cannot succeed on the premise of acts of ownership and possession. Hence, in the case of Odunukwe v. Ofomata (supra), at page 445, Adekeye JSC, observed:
“There are five destinct ways of proving title to or ownership of land, and establishment of one of the five ways is sufficient proof of ownership. Where ct claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely, on acts of ownership und possession to prove his title to the land.
As a matter of course, there would be nothing on which to found acts of ownership. In such a case, the court is obligated to dismiss his title to the land.”
See. also. Dubo v. Abdullahi (2005)7 NWLR (pt. 923) 181. That was the bane of the appellant’s case in the lower court. Their action was doomed to failure from their pleadings.
For the above reasons; coupled with detailed reasons advanced in the leading judgment of my learned brother. I hold that the appeal lacks merit. I dismiss it. I abide by the orders made in the leading Judgment.
Appearances
Ahmed M. Danbaba Esq with M. Abdullahi EsqFor Appellant
AND
Abdul Aliyu EsqFor Respondent
