SHETTIMA SULEIMANA v. ABUBAKAR USMAN LAGA
(2013)LCN/6681(CA)
RATIO
WHETHER A PLAINTIFF SEEKING A DECLARATION OF TITLE TO LANDHAS THE BURDEN OF PROVING THE IDENTITY OF THE LAND
On Issue No. 2, the law is now settled beyond peradventure that a plaintiff seeking a declaration of title to land has the initial burden of proving clearly and unequivocally the precise area to which the action relates, where the identity of the land in dispute is not a question in issue, the plaintiff has no burden of proving the identity of the land. See Ogun vs. Akinyelu (2005) 2 MJSC 92 at Pages 111-112 paragraphs G-A. Per TIJJANI ABDULLAHI, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 20th day of December, 2013
CA/J/111/2013
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
SHETTIMA SULEIMANA Appellant(s)
AND
ABUBAKAR USMAN LAGA Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Borno State High Court of Justice delivered on the 25th February, 2013 by C.A. Mamza (J).
The Appellant as can be gleaned from the record was the Defendant in that Court (hereinafter referred to as the trial Court) whilst the Respondent was the Plaintiff.
By paragraph 18 of his amended statement of claim, the Respondent as Plaintiff claimed the following reliefs:
“(18) WHEREOF the plaintiff claims against the defendant the following reliefs:-
(1) A declaration of title and/or to customary right of occupancy to that piece or parcel of land situate and lying at Koshebe village in Mafa Local Government Area of Borno State, as is more particularly shown and delineated in plan attached to customary certificate of Right of occupancy No. 0190 granted by Mafa Local Government which the plaintiff inherited from his late father, Alhaji Usman Laga.
(2) N1, 250,000.00 being special and general damages for loss of use of the plaintiff’s farmland for the year, 2006 and for trespass on the land.
(3) A perpetual injunction restraining the defendant, his servants, agents and/or privies from further trespassing into the said piece or parcel of the land.
(4) Cost of this suit.”
Pleadings were filed and exchanged and the case proceeded to hearing. The Respondent called 7 witnesses and tendered some documents as Exhibits and the Appellant as Defendant called 4 witnesses. Addresses were filed and exchanged. In a reserved judgment, the learned trial Judge held thus:
“On the whole I hold that the plaintiff proved his claim by cogent and credible evidence and is entitled to judgment. I hereby enter judgment for the plaintiff in the following order. I hereby order that:-
“1. A. declaration of title and or the customary right of occupancy to the piece or parcel of land situate and lying at Koshebe village in Mafa Local Government area of Borno State as is more particularly shown and delineated in plan attached to customary certificate of Right of Occupancy No. 0190 granted by Mafa Local government which the plaintiff inherited from his late father Alh. Usman Laga.
2. As for the claim of N1, 250,000 being general and special damages, claim of special damages must be proved with credible and in contradicted evidence it has to be specially pleaded and strictly proved because it is exceptional in its character such that the law will not infer from the nature of the acts which gave rise to the claim. Plaintiff has pleaded in paragraphs 16 and 17 of the amended statement of claim for special damages but have failed to prove same by evidence hence he is not entitle to special damage which has not been proved see the case of Araba v. Elegba (1986) 7 NWLR (Pt. 16) P. 33 ratio 3.
For the claim of general damages when averred as having been suffered the law will presume to be the direct natural or probable consequence of the act complained of plaintiff is therefore entitle to general damages. Plaintiff is entitled to general damage of N30, 000.00k.
3. A perpetual injunction restraining the defendant his servants, agents and/or privies from further trespassing into the said piece or parcel of the land.
4. Plaintiff is equally entitled to the cost of this suit, because he must have paid for the expenses of his counsel, paid for the filing of document before this court. N20, 000.00k is assessed as the cost of the suit. Plaintiff is therefore entitled to cost of N20, 000.00k”.
Aggrieved by the judgment of the learned trial Court supra, learned counsel for the Appellant on 2/8/2013 approached this Court and filed a Notice of Appeal consisting of eight grounds from which he distilled five issues for determination as follows:
“i. Whether by the pleadings and evidence before the trial court, the Respondent has proved his root of title as pleaded.
(The issue is distilled from Ground one).
ii. Whether the learned trial Judge was right in spite of conflicting evidence as to the location, area, boundaries and dimension of the farmland in dispute to grant declaration of title to the Respondent and injunction.
(The issue is distilled from Grounds 2 and 5).
iii. Whether in spite of the glaring evidence to the contrary the trial court was right in holding that the Sales Agreements were duly executed and signed by the parties and their witnesses thereby establishing the sale transaction.
(The issue is distilled from Ground 6).
iv. Whether the customary certificate of Occupancy issued by the Mafa Local Government based on exhibit ‘AB’, ‘AB1’, ‘AB2’ and ‘AB3’ has any evidential value.
(The issue is distilled from Grounds 3 and 4)
v. Whether the trial court can pick and chose (sic) the evidence of witnesses with fall (sic) of material contradiction.”
(The issue is distilled from ground 7).
For his part, learned counsel for the Respondent adopted the five issues formulated by the Appellant as the issues calling for determination in this appeal. He made the point that no issue was distilled from ground 8 of the grounds of appeal and opined that same is deemed abandoned by the Appellant.
It is instructive to note that as opined by the learned counsel for the Respondent, the learned counsel for the Appellant did not distill any issue from ground 8 of the grounds. The law is settled that ground of appeal from which no issue is distilled is deemed abandoned. I therefore find no difficulty in holding that the 8th ground of appeal from which no issue was distilled had been abandoned by the Appellant and same is therefore struck out.
On the 18th November, 2013 when the appeal came up for hearing, Counsel for the parties adopted their briefs as their submissions in the appeal. Learned counsel for the Appellant, S. M. Konto adopted his brief dated 7th day of June, 2013 and filed on 10th June, 2013 and urged us to allow the appeal and set aside the judgment of the lower Court. He withdrew his Appellant’s Reply brief filed on the 14th October, 2013 and same was struck out.
On the other hand, the Respondent’s counsel B. G. Amuda adopted his brief dated 26th September, 2013 and filed on 30th September, 2013. He urged us to dismiss the appeal as lacking in merit.
On the first issue for determination which is whether by the pleadings and evidence before the trial Court, the Respondent has proved his root of title as pleaded, learned counsel for the Appellant after reiterating the claim of the Respondent as plaintiff in the lower Court reproduced in paragraphs 8, 9 and 10 of the amended statement of claim, submitted that where a party traces his root of title to a particular person, he has the burden of proving the title of his predecessor-in-title. He relied on the cases of Adole vs. Gwar (2008) All FWLR (part 423) page 1217 at page 1239, paragraphs C – E, Echi vs. Nnamani (2000) 5 SCNJ page 155 at 164 and Eyo vs. Onuoha (2011) All FWLR (part 574) page 1 at pages 38 – 39.
Learned Counsel further submitted that where a party’s root of title is pleaded as a sale that root of title has to be established first. He referred us to the case of Adedeji vs. Oloso (2007) 3 MJSC page 56 at page 107, paragraphs E-F.
Learned counsel after re-stating the requirements of transfer of land under customary law which include, payment of money or agreed consideration, transaction to be witnessed by witnesses and the handing over to be done in the presence of some witnesses, contended that the names of such witnesses must be pleaded which was not done in the case in hand. For this contention, learned Counsel relied on the cases of Adedeji vs. Oloso (2007) All FWLR (part 356) page 610 at page 640, paragraphs F-G and Mustapha vs. Mshelizah (2003) FWLR (Part 183) page 1 at page 27 to buttress his contention.
Learned Counsel submitted that the trial Court was wrong by holding that the names of the witnesses were stated in Exhibits ‘AB’, ‘AB1’, ‘AB2’, and ‘AB3’. It was further submitted that exhibits constitute evidence and not facts, the names of the witnesses are facts to be pleaded. Therefore evidence of facts not pleaded goes to no issue. He relies on the cases of U.B.N. vs. Ironbar (2011) All FWLR (Part 573) page 2043 paragraph B and Otokpo vs. John (2013) All FWLR (part 661) page 1509 at page 1528 paragraph G.
It was submitted for the Appellant that Exhibits ‘AB’ and ‘AB1’, ‘AB2’ and ‘AB3’ where the names of the witnesses were stated relate to a different land which is situate at Zabarmari Village of Jere Local Government Area. The Exhibits, it was further submitted did not relate to the land the Respondent is claiming which is situate at Koshebe village of Mafa Local Government. He referred to paragraph 18 (1) of the statement of claim at page 7 of the record and the evidence of PW5 to support his submission.
It was contended that the only witness called by the Respondent who claimed to have witnessed the sale transaction is PW1. Alhaji Na Usman Laga but his name was not pleaded. Apart from him, learned Counsel went on, no any other witness was called because for a valid sale under customary law; those witnesses apart from pleading their names, they must be called as witnesses. Not called also were the witnesses in whose presence the land was handed over.
Learned Counsel posited that the learned trial Judge was wrong to have held that the handing over of the land to the father of the plaintiff was not necessary in view of the fact they are in possession in the light of the averment in paragraph 10 of the statement of claim wherein the Respondent claimed that the land was handed over to the father of the Respondent in presence of witnesses. This averment, learned Counsel submitted, suggested that the Respondent’s father was not in possession.
It was submitted that the trial Court was wrong to have held that the requirement of valid sale of land under customary law to have been met by the Plaintiffs father when the obligation to plead the names of the witnesses who witnessed the transaction and handing over, which are sacrosanct for valid sale was not satisfied.
Learned Counsel urged us to resolve this issue in favour of the Appellant and against the Respondent in the light of all that has been said supra.
On issue No. 2, it was submitted that a party asserting that a piece of land belongs to him must plead and prove clearly the area of land to which his claim relates as well as the exact location and boundaries of the land claimed. For this submission learned Counsel relied on the case of Ogunyomi vs. Ogundipe (2011) All FWLR (part 594) page 188 at pages 198 – 199.
Learned counsel contended that the claim of the Respondent relates to two pieces of land bought by his father from the Appellant’s father as can be seen in paragraph 8 of the amended statement of claim. Learned counsel further contended that the Respondent was not able to prove properly the exact location of the land in dispute.
It was contended that as regards to the location of the two portions of the land, exhibits ‘AB’ and ‘AB1; and ‘AB3’ (the sales agreements) show that the land is situated at Eastern part of Zabarmari town of Jere Local Government Area while the site plan, Exhibit ‘AB51’ the location of the land is at Koshebe village of Mafa Local Government Area.
Learned Counsel further contended that the boundaries and dimension/area of the two portions of the land claimed by the Respondent were not pleaded and that being the case, learned Counsel submitted that the identity of the land is in dispute going by paragraphs 6, 7 and 8 of the statement of claim and paragraphs 6, 7; 8 and 9 of the statement of defence.
On the boundaries and locations of the land in dispute, learned counsel further contended that the Respondent did not plead the boundaries or dimension of the land but he tendered the site plan of the land he was claiming which is Exhibit ‘AB51’ but learned counsel went on, the said exhibit, clearly stated on it that it was drawing not scaling, i.e. boundaries and dimensions of area of the land were not given on the site plan.
Exhibit ‘AB51’ learned Counsel contended did not show the two portions of the land bought by the Plaintiff’s father. Therefore, learned Counsel went on, the site plan (Exhibit ‘AB51’) did not define the land claimed by the Respondent. He referred us to Aremu vs. Adetoro (2007) All FWLR (Part 388) page 985 at pages 993 – 994.
It was submitted that the trial Court was wrong to have held that the failure to plead and lead evidence did not invalidate the claim of the Respondent. For this submission, learned Counsel relied on the case of Nwokidu vs. Okanu (2010) All FWLR (part 522) page 1633 at page 1656 paragraphs A-E.
It was submitted that the identity of the portions of the land bought by the Respondent’s father is clearly in issue and one way of identifying the area, location, boundaries and dimension of the land claimed by the Plaintiff is to tender accurate site plan of the area. He relied on the case of Aremu v. Adetoro (supra).
It was submitted that in Exhibit ‘AB51’, (site plan) there are no names of the surveyor, not dated nor was it signed. This being the case, learned counsel further submitted that the said site plan is worthless. He relied on the case of Omega Bank (Nig) Ltd vs. O.B.C. Ltd (2005) All FWLR (Part 249) page 1964 at page 1993 paragraph G-E.
In the light of all that has been submitted, learned counsel urged us to resolve this issue in their favour.
Issue No. 3 is whether in spite of the glaring evidence to the contrary the trial Court was right in holding that the sales agreements were duly executed and signed by the parties and their witnesses thereby establishing the sale transaction.
Learned Counsel referred to the holding of the trial Court where it was held that “the sales agreements are germane and valid and same were duly executed in that they were duly signed by the buyer, seller and witnesses”, learned counsel argued that the only witness called by the Respondent who claimed to have been present at the time of the sales transaction and who had signed the sales agreement was PW1- Alhaji Ali Na Usman Laga.
Though PW1 said he signed the agreement at another breath he said he did not and that it was the person who wrote the agreements that signed for them. Learned counsel paused the question whether in the light of the evidence of PW1, the sales agreements can be said to have been duly executed and signed by the seller, buyer and the witnesses. He answered the question in the negative.
It was submitted that a signature is said to be a forged signature when it is not the signature of the person who said to have signed it. Thus according to PW1 Exhibits ‘AB’ and ‘AB1’, ‘AB2’ and ‘AB3’ all the signatures on it were forged by the person who wrote the sales agreement and therefore Exhibits ‘AB’ and ‘AB1’, and ‘AB2’ and ‘AB3’ are unsigned documents and are worthless papers. For this submission, learned Counsel relied on the cases of Odunewu vs. Martins (2010) All FWLR (part 541) page 1490 at pages 1499 – 1500 and Omega Bank (Nig) Plc vs. O.B.C. Ltd supra at page 1964 at page 1993.
Learned counsel submitted that upon all the glaring evidence pertaining to the sales agreements, the learned trial Judge was wrong to have held that there was no evidence before the Court to show that the signatures were forged. Learned counsel urged us to hold that they were forged and to also hold that the trial Court was wrong to have held that the sales agreements were germane and duly executed and signed. Learned counsel urged us to resolve this issue in their favour.
The fourth issue for determination is whether the customary certificate of occupancy issued by Mafa Local Government based on Exhibits ‘AB’ and ‘AB1’ and ‘AB3’ has any evidential value.
On this issue, learned counsel submitted that production of a certificate of occupancy by a party does not itself entitle the party to a declaration of title. In order to succeed in a claim for title, a party who holds a certificate of occupancy will need to show his root of title. However, where there is evidence to show that the certificate was wrongly obtained, the Court is entitled to nullify it. See the case of Otukpo vs. John (2013) All FWLR (Part 661) page 1509 at page 1527.
It was submitted that evidence abound to the effect that the customary certificate of occupancy Exhibit ‘AB5’ was wrongly obtained for the following reasons:
“(1) The land sold as evidence by exhibits ‘AB’ and AB2′ and AB3′ are situate at Eastern part of Zabarmri Town of Jere Local Government Area of Borno State as testified by PW1 and PW5.
(2) The customary certificate was issued to the Respondent after the death of his father, Alhaji Usman Laga but in the receipt ‘AB4’ it was Alhaji Usman Laga who paid N1,000.00 and signed as payee on 28/8/2005.
(3) Exhibits ‘AB’ and ‘AB1’, ‘AB2’ and ‘AB3’ were not duly executed and signed were not duly executed and signed by the parties and their witnesses.
(4) The Respondent did not validly prove his root of title to the land lying and situate at Koshebe.”
Learned Counsel submitted that for the foregoing reasons, the customary certificate was wrongly obtained from the Mafa Local Government Area. Thus, the certificate having wrongly obtained has no any evidential value and same ought to have been nullified by the trial Court, learned Counsel further submitted.
Based on the foregoing, learned Counsel urged us to resolve the issue in their favour and against the Respondent.
Issue No. 5 is whether the trial Court can pick and choose the evidence of witness with full of contradiction. Learned counsel contended that the evidence of PW1, the prime witness of the Respondent, Alhaji Ali Na Usman Laga was full of material contradictions and that the trial Court wrongly picked and chose the evidence. Learned counsel outlined the contradictions as follows:
“(1) PW1 in his evidence claimed to have signed the sales agreements and same was tendered through him. See page 31 lines 1 – 20.
(2) PW1 contradicted himself that he cannot read and write in English, even though the case was adjourned to another date for him to get his reading glasses. See p. 36 lines 16-20 of the Record.
(3) PW1 gave evidence that the sale agreements were signed by the seller, Shettima Kalli buyer Alhaji Usman Laga and all the witnesses. See p. 30 lines 15-25 of the Record.
(4) He testified that the seller Shettima Kalli did not sign but was signed for him by the person who wrote the agreements.
(5) PW1 contradicted himself much further when he said that it was the person who wrote the agreement that signed for all of them.”
It was submitted that with the foregoing material contradictions, in the testimony of PW1, the trial Court was wrong to have relied on his evidence and same ought to have been rejected. To buttress this submission, learned counsel relied on the case of Wachukwu v. Owunwane (2011) All FWLR (Part 589) page 1044 at 1046. He cited the case of Sani vs. Lanre (2010) All FWLR (Part 545) page 335 at page 355.
It was submitted that the trial Court was clearly wrong to rely on the evidence of PW1 marred with material contradictions which ought to have been rejected in its entirety.
It was further submitted that apart from the contradictions, the evidence of PW1, Alhaji Ali Na Usman Laga is suspicious being the younger brother to the Respondent’s father. For all these reasons adumbrated supra, learned counsel urged us to resolve this issue in favour of the Appellant.
On the other hand, learned counsel in arguing issue No. 1, made copious references to the pleadings, particularly the amended statement of claim and submitted that the contract of sale between his father and the father of the Appellant was in writing. He also made copious reference to the evidence of PW1 and PW5 as well as Exhibits ‘AB’, ‘AB1’, ‘AB2’ and ‘AB3’ and submitted that the main complaint of the Appellant is that the name of the witnesses were not pleaded and as such the sales transaction has not been proved and the sale was invalid and reliance was placed on the cases of Adedeji vs. Osolo (2007) All FWLR (part 356) page 310 at page 642 and Mustapha vs. Mshelizah (2003) FWLR (part 183) page 1 at page 27 paragraphs E-H, to buttress his submission.
It was submitted that the facts of those two cases are not on all fours with the case in hand because in the instant case, the transaction was reduced into writing and the sales agreements were tendered and admitted in evidence as Exhibits ‘AB’, ‘AB1’, ‘AB2’ and ‘AB3’ respectively.
The submission of the learned counsel to the Appellant that Exhibits ‘AB’, ‘AB1’, ‘AB2’ and ‘AB3’ are not evidence of payment cannot be sustained as Exhibits are in respect of the farmland and are evidence of payment of the purchase price of the farmland as both parties know the farmland in dispute. Learned counsel submitted that there was payment of money or consideration in respect of the farmland. Learned counsel urged us to resolve this issue in favour the Respondent.
On the 2nd issue for determination, learned counsel submitted that where the land in question or dispute is well known to the parties or to both sides, like in the case in hand, the issue of proof of the identity of the same land goes to no issue. For this submission, learned Counsel relied on the case of Osho vs. Ape (1998) 6 SCNJ page 139 at 154.
It was further submitted that, as per the pleadings and evidence of the parties, it is very clear that they know themselves and each of them know the land in dispute thus the issue of identity of the land in dispute was not clearly in issue. To buttress his submission on this, learned counsel referred us to the case of Ogun vs. Akinyelu (2005) 2 M.J.S.C. pages 111 – 112 paragraphs G-A. Learned counsel urged us in the light of his submission supra to resolve the issue in their favour.
On issue No. 4, learned counsel submitted that Exhibits ‘AB’, ‘AB1’, ‘AB2’ and ‘AB3’ are documents and by the provision of Section 125 of the Evidence Act, 2011 cannot be proved or altered by oral evidence. The evidence of PW1 cannot be taken to be the proof of the Exhibits in question. They speak for themselves, learned Counsel, further submitted.
It was submitted that PW1 has already stated in his evidence in-chief that parties and their witnesses to the sales agreements had signed them.
The question of forgery is of no moment in this appeal and that being a criminal offence forgery must be proved beyond reasonable doubt, learned Counsel further submitted.
Learned Counsel urged us, in view of the foregoing, to resolve this issue in favour of the Respondent.
On the 4th issue for determination, learned Counsel submitted that the customary certificate of occupancy (Exhibit ‘AB5’) was properly issued by a competent authority, that is Mafa Local Government Council of Borno State. It was also submitted that the production of a document of title is one of the recognized methods of proving title to land.
It was also submitted having produced and tendered Exhibit ‘AB5’ the Respondent needed not more than what he did. To support this submission, learned Counsel relied on the case of Dabo vs. Abdullahi (2005) 2 SCNJ, page 76 at pages 94 and 100-101.
Learned Counsel submitted that since the Appellant has not given any evidence in rebuttal of the issuance of Exhibits ‘AB4’ and ‘AB5’, the presumption of ownership and exclusive possession in favour of the Respondent remain unrebuttable. Thus, the Respondent has also proved his title to the land in dispute by the production of land tendering of the Exhibits ‘AB4’ and ‘AB5’, besides the proof through sale of the land in dispute.
Learned Counsel urged us to resolve the issue in contention in their favour and against the Appellant.
Last but not the least issue for determination is Issue No. 5 which is whether the trial Court can pick and choose the evidence of witness with full of contradiction. Learned counsel submitted that the inconsistency and contradiction much-talked about by the learned Appellant’s Counsel are predicated on Exhibits ‘AB’-‘AB3’ which the Respondent in arguing issue 3 made the point that the contents or facts of a document cannot be altered or varied by oral evidence by dint of Section 125 of the Evidence Act, 2011.
It was submitted that having regard to the evidence before the trial Court, the learned trial judge was justified in reaching his conclusion and he has appreciated upon preponderance of evidence of which side of the scale weighed having regard to the burden of proof. For this submission, learned counsel relied on Lawal vs. Akande (supra). Furthermore, learned counsel opined that the law is settled that declaration for title to land is discretionary which was well exercised by the learned trial Judge.
Learned Counsel urged us, in the light of the foregoing to resolve the issue in favour of the Respondent.
Now, on the first issue for determination, which relates to the prove of the Plaintiff’s claim on the pleadings and evidence, my first port of call is the pleadings of the Plaintiff as per his claim after which evidence adduced in support of the pleadings will be examined with a view to finding out whether or not the claim of the Respondent had been proved on balance of probabilities as is the case in civil suits.
Pleading is defined in Black’s Law Dictionary Eighth Edition, by Bryan A, Garner, in page 1190 thus:
“A formal document in which a party to a legal proceeding (especially a civil law suit) sets forth or responds to allegations, claims, denies, or defences …”
The place or position of pleadings in civil suit as the definition portrays cannot be over emphasized. In the case of Ransome Kuti vs. Attorney-General of the Federation (1985) 2 NWLR (Part 6) Page 21, it was held that facts not pleaded go to no issue and because parties are bound by their pleadings, evidence not pleaded must be expunged from the record. See Ajide vs. Kelani (1985) 3 NWLR (Part 12) page 248.
It is instructive to note that the Respondent in his amended statement of claim stated that he inherited the farmland in dispute from his father Usman Laga who applied for a virgin forest for the purpose of farmland from the Appellant’s father, Shettima Khali who was the ward head of Koshebe and was allocated the virgin forest sometime in 1976.
In the amended statement of claim, paragraph 3, the Respondent as Plaintiff claimed thus:
“The Plaintiff avers that he is the owner of piece or parcel of land situate and lying in the eastern town of zabarmari specifically at koshebe village, mafa local government area as is more delineated in plan verged pink attached to customary certificate of right of occupancy no. 0190 issued by mafa local government which he inherited from his late father Alh. Usman Laga”.
Again, in paragraph 12 of the said statement of claim, he averred as follows:
“The plaintiff avers that after the demise of his said father, he inherited the land and because he had other pieces or parcels of land he gave out the land on renting basis to 19 persons whereupon he shared the land amongst the 19 persons and these 19 persons cultivate rice on the land every year apart from money being paid for renting the land, they also as a condition do give due (butu in hausa language) of farm produce to the plaintiff annually and gets N120,000.00 from renting out the land and at least 50 (fifty) bags of rice, due or “butu” of farm produce.”
As can be gleaned from the records, aside from the claim of the Respondent as averred in the aforementioned paragraphs, the Respondent also pleaded sale as his root of title to the farmland to the effect that though his father improved the farmland from the virgin forest for the first time, yet his father had to purchase the same farmland from the Appellant’s father upon which the payment of farm produce stopped.
The relevant paragraphs are hereunder reproduced as follows:
“1. That when the plaintiff’s father complained that since he was the first person that deforested the land from the forest, the land belonged to him and the defendant’s father was only entitled to the annual due of farm produce, but the defendant’s father insisted on selling the land and was ready to sell the land to any interested person when the plaintiff’s father complained.
2. That the plaintiff’s father, having considered how he suffered in clearing the land, had no option but to buy the portion of the land in the presence of witness at the price of the sum of N2,000.00; and immediately after paying the sum of N2,000.00 that the defendant’s father quickly, told the plaintiff’s father that if he was interested in the remaining portion of the land he should also buy it as the sum of N2,000.00 was not enough to solve his problem, but still the plaintiff’s father had no alternative but to buy the said remaining portion at the price of the sum of N1,600.00.
3. That after setting the said prices of the two portions of the land which amounted to the sum of N3, 600.00 in the presence of the witnesses, two memoranda of sales agreement were prepared in Hausa language dated the 11th March 1986 and signed by the parties and the witnesses that were present as at the time of the sales and the agreements were later signed by the village head and the District Head of the area and same were later translated from Hausa to English Language.
4. The plaintiff further avers that after payment of the prices of the portions of the land by the plaintiff’s father to the defendant’s father, the defendant’s father told the plaintiff’s father that the land had become the plaintiff’s father forever and that the gift of farm produce/Ngaji or butu he used to give had come to an end and thereby handed over the land to the plaintiff’s father in the presence of the witnesses.”
It is pertinent to state at this juncture that the contract of sale of the farmland between the Appellant’s father and the Respondent’s father was in writing but the complaint of the Appellant is that the names of the witnesses were not pleaded and as such, the sales transaction has not been proved as the sale was invalid. He placed reliance on the case of Adedeji v. Osolo (2007) All FWLR (Part 356) Page 310 and Mustapha vs. Msheliza FWLR (Part 183) Page 1 at Page 7.
Let me pause at this stage and say with due respect to the learned Counsel the facts of the cases cited supra cannot be called in aid of the Appellant because in the instant case the sales transaction was in writing unlike in the cases cited above.
It is instructive to note, contrary to the submission of the learned counsel for the Appellant that in paragraphs 8 and 9 of the amended statement of claim, the names and the signatures of the parties and their witnesses are clearly stated in the agreements. See Exhibits ‘AB’, ‘AB1’, ‘AB2’ and ‘AB3’.
Again, learned Counsel for the Appellant submitted and in fact made heavy weather of the fact that the said Exhibits are not evidence of payment in respect of the farmland in dispute. With respect due to the learned Counsel this submission is most incorrect as the said Exhibits are in respect of the farmland and are indeed evidence of the purchase price of the farmland as both parties know the farmland in dispute. This being the case, I am of the firm view that there was payment of money and or consideration in respect of the disputed farmland.
Learned Counsel for the Appellant, submitted quite copiously that there was no hand over of the farmland to the Respondent’s father. With due respect to the learned counsel, the Respondent’s father as can be gleaned from the records, was already in physical possession of the farmland prior to the sales transaction but the handing over was reaffirmed during the sale whereupon, the Respondent’s father continued to be in possession of the farmland without payment of farm produce dues or gift as he used to do before the sales agreement and more importantly without any disturbance by anybody until the Appellant trespassed into the farmland which gave rise to the action appealed against.
I am of the further view that, had the farmland not handed over to the Respondent’s father, there was no how he could have remained in possession of the farmland up to the time of his death without payment of dues and whereupon, the Respondent later inherited the farm and also continued to be in possession of the farm. See the evidence of PW1 to PW7 at pages 29-50 of the Record.
The question that is begging for an answer is, when is sale of land under customary law said to have been concluded? The answer to this question is provided by this Court in the case of Lawal and Another vs. Alhaji Ganiyu Akande (2009) NWLR (part 1126) page 452 at page 454 paragraphs B, wherein it was held that:
“Under customary law, there is a complete sale once the purchase price has been paid and the buyer let into possession.”
It is instructive to note that in the case in hand, there is ample evidence that the purchase price had been paid to the Appellant’s father by the father of the Respondent and that the latter had been in possession both prior to the sales agreements and after the sale. This being the case, I have no difficulty in holding that there was a complete sale of the farmland to the Respondent’s father. This issue is therefore resolved in favour of the Respondent and against the Appellant.
On Issue No. 2, the law is now settled beyond peradventure that a plaintiff seeking a declaration of title to land has the initial burden of proving clearly and unequivocally the precise area to which the action relates, where the identity of the land in dispute is not a question in issue, the plaintiff has no burden of proving the identity of the land. See Ogun vs. Akinyelu (2005) 2 MJSC 92 at Pages 111-112 paragraphs G-A.
Now, having stated the law and all that as it relates to identification of land under customary law, let me apply the above enunciated principle to the matter we have in hand.
From the pleadings of the parties and their testimonies in Court, one is right to say that evidence abound to the effect that the identity of land is not in dispute. This can be seen from some of the paragraphs of the amended statement of claim of the Respondent particularly paragraphs 3, 4, 5, 11, 12, 13, 14 and 16. More importantly, however, is the evidence of the Appellant himself which can be seen at page 52, lines 13-14 of the record wherein he unequivocally said that:
“I know the land in dispute”
In the light of the above, it is crystal clear that the issue of identity of the disputed land was not in issue in the Court below. This issue (No. 2) is therefore resolved in favour of the Respondent.
Issue No. 3, is whether in spite of the glaring evidence to the contrary the trial Court was right in holding that the sales agreements were duly executed and signed by the parties and their witnesses. Let me start with the Exhibits, i.e. ‘AB’, ‘AB1’, ‘AB2’ and ‘AB3’.
Exhibit ‘AB’, is a sales agreement in Hausa language between one Shettima Kalli and Alhaji Usman Laga for the purchase of a rice farm in the sum of N2, 000.00. The said Exhibit was signed by the seller, who by the pleadings of the parties is the father of the Appellant and Alhaji Usman Laga, who is the father of the Respondent. The sales agreement was signed by 3 out of the four witnesses contained in the said agreement.
Exhibit ‘AB1’ is the English translated version of Exhibit ‘AB’.
Exhibit ‘AB3’ is another sales agreement written in Hausa language for the purchase of a rice farm at Zabarmari for the sum of N1, 600.00 between the same parties as in Exhibit ‘AB’. In this agreement both the seller and the buyer signed the sales agreement. Two out of their witnesses also signed. Exhibit ‘AB2’ is the English translated version of Exhibit ‘AB3’
Learned Counsel in respect of the above produced Exhibits went to town and copiously submitted that there are glaring contradictions in the evidence of PW1 with regards to the Exhibits; that the Exhibits were not signed and that same were also forged and so on. However with due respect to the learned counsel, the law is now trite that contents of a document cannot be varied or altered by oral evidence. See Section 125 of the Evidence Act, 2011.
It is in light of the above that I hold with ease that the Exhibits are germane and valid and that the parties are bound. The said Exhibits are not forged and cannot be said to be forged documents since there has not been any proof of forgery whatsoever, less talk of proof beyond reasonable doubt. See Ali vs. N.A.A. (2005) All FWLR (Part 272) page 265 at Pages 295-296.
This issue, in the light of all that has been adumbrated above, is resolved in favour of the Respondent.
Issue No. 4 is whether the customary certificate of occupancy issued by Mafa Local Government based on Exhibits ‘AB’, ‘AB1’ and ‘AB3’ has any evidential value, let me say straight away that the customary certificate of occupancy (Exhibits) was properly issued by a competent authority. The production of document of title, needless to say, is one of the recognized methods of proving title to land. The said Exhibit confers exclusive title on its holder. The Respondent needed not more than he did by production and tendering the document in evidence. See Dabo vs. Abdullahi (2005) 2 SCNJ Page 76 at Pages 94 and 100 – 101.
It is pertinent to state at this stage that the presumption of exclusive possession stated supra has not been rebutted by the Appellant nor did he prove that he had a better title to the land before the issuance of Exhibit ‘AB5’. The Appellant did not counter-claim to set aside Exhibit ‘AB5’ nor did he specifically deny the averment of the Respondent in paragraphs 3 and 13 reproduced supra.
The submission of the Appellant’s Counsel that the land in dispute is situated at Jere Local Government and that the certificate was wrongly issued by Mafa Local Government is of no moment in this appeal. This is because there has not been any dispute as to the identity of the land and that Exhibit ‘AB4’ in the name of the Respondent’s father which led to the issuance of Exhibit ‘AB5’ has been explained by the Appellant thus:
“Exhibit ‘AB5’ was issued in 2003 in my father’s name.
Zabar Mani and Koshebe do not share boundaries.
There are villages between the two villages. Koshebe and Daunari share boundaries”.
For the foregoings, this issue is resolved in favour of the Respondent.
Issue No. 5 is whether the trial Court can pick and choose the evidence of witness with full contradiction. A cursory look at the brief of the Appellant will reveal the fact that the inconsistency or the contradiction much talked about by the Appellant is on Exhibits ‘AB’ – ‘AB3’. I have already held that the contents of a document cannot be varied or altered by oral evidence.
That aside, the documents speak for themselves and there is nothing in Exhibits ‘AB’-‘AB3’ which shows that they are signed by one person because the signatures on them show clearly that they were not signed by one person but different persons. I am of the view that the oral evidence of PW1 cannot be proof of the contents of Exhibits ‘AB’-‘AB3’.
As for the contradictions, the learned Counsel made heavy weather of, the law is now recondite; that only material contradictions in evidence can change the fortunes of an appeal in favour of the Appellant. See the case of Owie vs. Ighiwi (2005) All FWLR (part 248) page 1762 at Page 1759 paragraphs D-E and Usiobaifo vs. Usiobaifo (2005) All FWLR (Part 250) Page 131 at pages 147-487.
I am also of the further view that the so-called contradiction(s) if any at all did not in any way affect the live issues in this appeal as there is no any material and substantial contradiction(s) in the evidence adduced by the Respondent. This issue like the previous ones is resolved in favour of the Respondent.
In conclusion, the five issues having been resolved in favour of the Respondent the appeal fails and same ought to be dismissed and is dismissed accordingly with N50,000 costs in favour of the Respondent and against the Appellant.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the draft of the lead Judgment of my learned brother, Abdullahi, JCA. I agree with all his reasonings and conclusions. I adopt them as mine. I have nothing more to add. I too would dismiss this appeal. I do so and abide by all the consequential orders of my learned brother, including the order for costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother TIJJANI ABDULLAHI, J.C.A. For the reasons given and the conclusions arrived at in the lead judgment, which I hereby adopt as mine, I find no merit in the appeal. The appeal therefore fails and the judgment of the lower court is hereby affirmed. I abide by the order made in the lead judgment.
Appearances
S. M. KONTO Esq.For Appellant
AND
B. G. Amuda Esq.For Respondent
