AHMADU TATU v. ESTATE OF LATE ISAH ALH. ADAMU & ANOR (2014)

AHMADU TATU v. ESTATE OF LATE ISAH ALH. ADAMU & ANOR

(2014)LCN/7013(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of March, 2014

CA/YL/8/2013

RATIO

WHETHER THE BURDEN SHIFTS TO THE DEFENDANT WHERE THERE IS A COUNTER-CLAIM

It is the law that where there is a counter-claim, the onus is as much on the defendant in his counter-claim as on the plaintiff in the main claim to establish his counter-claim in respect of title, trespass and injunction therein claimed. This onus he must, to succeed, discharge to the satisfaction of the court and on the evidence brought by him. In this regard, the Defendant, as Plaintiff in the Counter-claim, must rely on the strength of his case and not on the weakness of the case of the Plaintiff. If this onus is not discharged the proper judgment will be against him. See Okhuarobo V Aigbe (2002) 3 SCNJ 109. Per JUMMAI HANNATU SANKEY, J.C.A.

WHETHER THE BURDEN IS ALAWYS ON THE PLAINTIFF TO ESTABLISH HIS CLAIM IN A CLAIM FOR DECLARATION OF TITLE

It is a well established principle of law that in a claim for declaration of title, the onus is always on the Plaintiff to establish his claim. It is not open to him to rely on the weakness of the defendant’s case. What is required of the Plaintiff in an action for declaration of title is at least to establish his claim by a preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is whether the Plaintiff has been able to prove to the satisfaction of the court that he has a better title than the Defendant. See Kaiyoaja V Ekwubiri (1974) 12 SC 55. Per JUMMAI HANNATU SANKEY, J.C.A.

LAND LAW; SALE OF LAND UNDER CUSTOMARY LAW

Sale of land under customary law is a normal contractual transaction arising from a clear offer made by one party to another and accepted by the other. Where an owner of land and a prospective purchaser have merely agreed to sell and buy the land, no binding obligation is created between them until the payment of the purchase price or part of it by the purchaser or the handing over of the land by the vendor. Until then either party can resile from the agreement without any liability for breach thereof. Under customary law therefore, it is the actual performance, and not merely the fact of agreement, that gives rise to contractual obligation. Once a binding contractual relation has been created between the parties to a customary sale, by the payment of the purchase price and the handing over of the land, a party is entitled to the normal contractual remedies for breach of contract.

Generally under customary law, given an agreement, all that is required to effect a transfer of land in a sale transaction is the payment of the agreed price and the handing over of the land in the presence of witnesses. This is always accompanied by some ceremony the nature of which varies from place to place. For some, it is the breaking of kola nuts and for others it could be the pouring of libation on the land. This is referred to as customary conveyance. Once therefore the purchaser pays the purchase money and the land is handed over to him in the presence of witnesses with the necessary ceremony, the entire interest of the vendor passes to him. Thereafter, the vendor ceases to have any interest in the land.

It is also true that generally customary law requires no writing for the transfer of land either as part of the transfer or as evidence of it. By native law and custom no such things as written contracts or conveyances are necessary to effect a valid sale. The payment of purchase money and the delivery of possession are usually enough. This is not, of course, to say that the use of writing excludes the application of customary law. Indeed, writing is quite commonly employed in customary transactions these days, but the effect of this is not to supplant the forms prescribed by customary law for the transfer of land, but rather to provide an additional evidence which is at once more permanent and reliable. The fact that customary law has required no writing for the sale of land in the past is perhaps its greatest shortcoming. No doubt the presence of witnesses not only gives solemnity and validity to the sale, but also provides evidence and publicity of it. However, this is of little avail to the purchaser and his successors in title, for in most cases of dispute involving title to land, the witnesses may not be available to give evidence, especially where the land has passed through several hands since the original sale. Currently in this day and age, nearly every purchaser of land will insist, at least, upon a receipt which acknowledges the money he has paid. But in the absence of writing in any form, the purchaser stands in real danger of not being able to prove the sale, should a dispute arise in the future concerning the land.

Section 16 (1) of the Evidence Act, 2011 provides:

“16. – (1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence.

(2) The burden of proving a custom shall be upon the person alleging its existence.”

Sections 17 and 18 of the Evidence Act, 2011) provides:

“17. – A custom may be judicially noticed by the court if it has been adjudicated upon by a court of superior court of record.”

“18. – (1) Where a custom cannot be established as one judicially noticed, it shall be proved as a fact.

(2) Where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinion of persons who would be likely to know of its existence in accordance with Section 73.”

Consequently, there are two modes of establishing customary law before the court, i.e. proof by evidence and judicial notice. The onus is on the party who claims the existence of a particular customary law as applicable to a given situation to call evidence to establish the custom.

Section 70 of the Evidence Act, 2011 also provides:

“70. In deciding questions of customary law and custom, the opinion of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognised as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.”

Thus, the Act provides three levels of evidence in proof of customary law, and they are:

Opinions of traditional rulers or chiefs;
Opinions of other persons having special knowledge of the customary law and custom;
Any book or Manuscriptrecognisedas legal authority by people indigenous to the locality in which such law or custom applies.

It is also desirable that a person, other than the person asserting it should testify in support thereof, as native law and custom are regarded as fact until proved. It will thus be unsafe to accept the statement of only one witness asserting the existence of a custom as conclusive. In the Queen ex parte Ekpega V Ozogula II (1962) ALL NLR 265 @ 268, Ademola, C.J.F., graphically noted that:

“It is of the greatest importance that native law and custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness.”

See also Oyediran V Alebiose II (1992) 6 NWLR (Pt. 249) 550; Diyelpwan V Golok (1996) 3 NWLR (Pt. 438) 599; Obi V Obijinde (1996) 1 NWLR (Pt. 423) 240. Per JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

AHMADU TATU Appellant(s)

AND

1. ESTATE OF LATE ISAH ALH. ADAMU
2. ALHAJI ADAMU MAI YASIN Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal arose from the decision of the Taraba State High Court of Justice sitting in Gembu delivered on the 11th day of December, 2012. Therein, the trial High Court granted some of the reliefs claimed by the Respondents, who were the Plaintiffs.

Briefly put, the facts of the case are that one Isa Alhaji Adamu Mai Yasin bought a parcel of farmland from one Alhaji Sali. Thereafter he developed the land by erecting a building, (which was still uncompleted), thereon. However, while he was still in the process of developing same, he fell ill. After months of seeking medical treatment in Teaching Hospitals in Jos and various other places, he succumbed to the illness and passed on at the Gembu General Hospital. After his demise, when steps were being taken to distribute his estate to his surviving family, which included a wife and children, in accordance with Islamic Law on inheritance, information came to the 2nd Respondent, (his father), that the Appellant was claiming to have bought the uncompleted building from his deceased son, Isa Alhaji Adamu Mai Yasin. The Appellant did not, however, approach him, (2nd Respondent) or any member of the deceased’s family to so inform them or to make the claim. When the 2nd Respondent met the Appellant at the market place and the Appellant repeated the claim to him, the 2nd Respondent informed the Ward Head as well as the Village Head of Gembu of the development, and both of them denied knowledge of the sale transaction within their domains. Consequently, in order to clarify matters, the Appellant on behalf of the Estate of his deceased son, filed an action before the Lower Court seeking, inter alia, a declaration of title to the property.
The Respondent denied the claim, and filed a counterclaim also seeking a declaration of title to the same property. He claimed that Isa Alhaji Adamu Mai Yasin (deceased) sold the house to him for One Hundred and Fifty Thousand Naira (N150,000.00), but died before he could write an agreement in that regard. He however claimed that the late owner handed over to him the original agreement entered into by the deceased and one Alhaji Sali who initially sold the land to him. Both the photocopy and the original of this document were in evidence before the Lower Court as Exhibits A and B.

At the trial, the Respondents/Plaintiffs called seven (7) witnesses in proof of their claim and in defence of the counterclaim. They successfully tendered one document, Exhibit A, in evidence. However, the agreement between the deceased and Alhaji Sali in respect of the land on which the deceased built the property written in Arabic, and its English translation, were tendered but rejected in evidence. The Appellant/Defendant, on his part, called three (3) witnesses in defence of the claim and in proof of the counterclaim, and tendered an agreement purported to have been given him by the deceased which is Exhibit B before the trial Court.

At the close of trial, both learned Counsel addressed the Court on the issues arising as perceived by them. Thereafter, the learned trial Judge framed a sole issue for the determination of the case, and proceeded to give Judgment in favour of the Respondents. Irate and dissatisfied by the decision, the Appellant filed a Notice of Appeal to this Court on the 6th February, 2013, wherein he complained on eight grounds.

At the hearing of this Appeal on 27-01-14, Mr. D.O. Ovoyenta, learned Counsel for the Appellant, adopted the Appellant’s Brief of argument filed on 26-02-13, and the Reply Brief filed on 22-01-14. He relied on the arguments contained therein as the Appellant’s arguments in the Appeal, and urged the Court to allow the Appeal, set aside the decision of the Lower Court and enter Judgment for the Appellant. Similarly, Mr. Ola Kassim, learned Counsel for the Respondents, adopted the Respondents’ Brief of argument filed on 02-12-13 and deemed filed on 13-01-14, and relied on the arguments therein as the Respondents’ arguments in response. He urged the Court to dismiss the Appeal and affirm the decision of the Lower Court.

The Appellant, in his Brief, submitted four (4) issues for determination by this Court in the resolution of the Appeal; whereas the Respondents distilled one sole issue. Having perused the grounds of Appeal, vis a vis the complaints of the Appellant as encapsulated in his grounds of Appeal, I adopt the issues formulated by the Appellant for a full and comprehensive determination of the issues agitating the parties. With a few readjustments and minor corrections to the syntax, they are set out hereunder as follows:
(i) Whether the trial Court was right when it failed to consider all the issues for determination placed before it by the Appellant.
(ii) Whether the trial High Court was right in determining the suit based on the customary law testified to by Respondents’ witness.
(iii) Whether the trial Court was right when it held that there was no valid sale of the land to the Appellant.
(iv) Whether the trial Court was right when it held that Exhibit B did not confer any interest of the land on the Appellant and thereby refused to accord any weight to it.

Issue One
In respect of the first issue, which is, whether the trial Court was right when it failed to consider all the issues for determination placed before it by the Appellant, learned Counsel for the Appellant submits that the trial Court failed in its duty to consider issues for determination before it and this occasioned a miscarriage of Justice. He contends that at the trial Court, the Plaintiff submitted four (4) issues for determination. Counsel contends that parties joined issues as to whether Exhibit B was forged or not. He submits that even though parties also led evidence on these pleadings, the trial Court in its judgment did not consider the issue relating to fraud and did not make any finding on same.

Counsel further submits that parties also joined issues on whether the Appellant actually bought and paid the price of the house in dispute. He again contends that though parties led evidence on these pleadings, the trial Court did not make a specific finding on whether or not the Appellant actually did purchase and pay the purchase price of N150,000.00 (One Hundred and Fifty Thousand Naira) to the late Isa Alhaji Adamu Mai Yasin.

Counsel thus submits that, if these issues had been resolved and findings made thereon, same would have had an effect on the case of the Appellant, especially if they were resolved in his favour. Hence Counsel submits that a court of law is duty bound to consider and make findings on all the issues presented to it for determination, and a failure to do so will amount to a failure of Justice. He relies on Oyefolu V Durosinmi [2001] 7 NSCQR 67 @76 & Adeogun V Fasogbon [2011] 45 (Pt. 1) NSCQR 594. Counsel therefore submits that the failure by the trial Court to consider all the issues for determination and make findings thereon occasioned a miscarriage of justice. He urged the Court to allow the Appeal on this ground.

In respect of whether a court can abandon the issues formulated for determination by counsel to formulate issues which would best address the dispute between the parties, learned Counsel for the Respondents urged the Court to answer this issue in the affirmative. Counsel submits that the trial Judge evaluated and considered the evidence before him and formulated an issue which best disposed of the controversy between the parties without any miscarriage of justice. He further submits that the trial Court has the power/discretion to formulate issues and resolve the controversy between the parties on the issue formulated. He submits that the rationale of formulating issues by parties or a court has been expressed in plethora of cases as a means of narrowing down the issues in controversy in the interest of accuracy, clarity and brevity. Reliance is placed on Sha (Jnr) V Kw’an [2008] 8 NWLR (Pt. 670) 688 @ 700 para D. Counsel therefore submits that the main purpose of formulating issues for determination is only to enable the parties to narrow down the issues in controversy in the interest of accuracy, clarity and brevity.

It is Counsel’s further submission that nothing prevents the trial Court from framing or formulating issues and deciding the case on issues so framed if the issues so framed will best address the questions in controversy. He submits that the only determining factor is that there should be no miscarriage of justice occasioned thereby. The decisions in Sha (Jnr) V Kw’an [2008] 8 NWLR (Pt. 670) 688 @ 700-70, paras F-A, 708-709, paras F-B, 710-711, paras H-B; & Atiku V State [2010] 9 NWLR (Pt. 1199) 241 @ 264 paras C-E are relied on. He also relies on Ishola V Folorunsho (supra), at pages 194-195 paras G-H, where the Supreme Court stated the essentials of a good Judgment. He submits that the Judgment of the trial Court met all the essential requirements stated in this decision. He thus urged the Court not to disturb the Judgment of the trial Court, but to affirm it.

FINDINGS
It is firmly settled that it is the duty of a court to consider all issues placed before it except in the clearest of cases. In the case of Owodunni V Registered Trustees of the Celestial Church of Christ (2000) 6 SCNJ 299 at 426-427, the Supreme Court stated that it has frowned at the failure of the Lower Courts to decide all issues placed before them. That unless in the clearest of cases, Lower Courts should endeavour to resolve all issues placed before them. See also Ifeanyi-Chukwu (Isondu) Ltd V Saleh Boneh Ltd (2000) 3 SCNJ 18; (2005) 5 NWLR (Pt. 322 @ 351.
The learned Counsel for the Respondents has commendably conceded this as the state of the law in their Brief. I however noted that the Appellant has not stated what prejudice or embarrassment the Appellant suffered or what miscarriage of justice the omission has occasioned to him. The issue of what amounts to a miscarriage of justice is now sufficiently trite and I will not belabour you with a long treatise on it. I however rely on its definition in Black’s Law Dictionary 7th Edition page 1013; Aidoko V Anyegwu (2003) FWLR (Pt. 49) 1439 @ 1446; Nnajiofor V Ukonu (1986) 4 NWLR (Pt. 36) 505 @ 516-517.
My answer to this issue is that, although I agree with the complaint of the Appellant that the Lower Court failed or neglected to pronounce on some of the issues presented to it for resolution, this failure did not occasion a miscarriage of justice that will warrant a dismissal of the suit before the Lower Court on this ground. See AG Leventis Nig. Plc V Akpu (2007) 6 SCNJ 242. I resolve issue one in favour of the Respondents.

Issues Two and Three
Issues two and three are considered together.
Starting with the second issue, which is whether the trial Court was right in determining the suit based on customary law which was testified to by the Respondents’ witness, it is Counsel’s contention that English Law principles governed the sale transaction which led to suit at the trial Court. However, that even if it were to be customary law that governed the transaction, there was no need to have had the transaction documented by way of a written contract to be witnessed and signed by the parties and witnesses. He thus submits that the trial Court was wrong in determining the case of the parties based on the customary law and procedure testified to by PW1. He argues that custom is a fact which must be pleaded and proved, and except the said custom is specifically pleaded, evidence cannot be led on it as evidence on facts not pleaded goes to no issue. He relies on Godwin Ogolo V Chief Joseph Ogolo [2003] 16 NSCQR 359 @ 372; & Isheno V Julius Berger [2008] 33 (Pt. 1) NSCQR 296 @ 319; Adekeye V Adesina [2010] 44 NSCQR 458.

Counsel submits that the custom relied upon by the trial Court in giving Judgment in favour of the Respondent is to the effect that an intended purchaser of land is required to go before the Village Head where the purchase price will be paid and the sale agreement written for parties to sign. Thereafter, the Village Head would countersign and then issue government receipts to the parties. Counsel submits that the trial Court was wrong to have accepted this custom and base its Judgment on same as legal documentation, such as a deed of conveyance or a sale agreement are no longer necessary to effect a valid sale of land under customary law. He relies on the decision of the Supreme Court in Agboola V UBA [2011] 45 (Pt. 1) NSCQR 335.

In respect of this issue, the Respondents gave a different perspective on what transpired between the parties. While the Appellant contends that he bought the house in dispute at his meat shop along Ahmadu Bello Way, Gembu from Isa Alh. Adamu Mai-Yasin (deceased) for N150, 000.00 with the Exhibits “A” and “B” as evidence, the Respondents contend that the assertions of the Appellant were false and untrue as none of the members of the family or friends and associates of Isa Adamu Mai-Yasin (deceased) were aware of such a transaction. Indeed, worse still was the fact that there was no agreement evidencing the sale and the property was still in the hands and possession of late Isa Adamu Mai-Yasin right to his death. In addition, although the Appellant was aware of late Isa’s illness and death, yet he did not promptly come forward while Isa was alive but ailing, or even shortly after his death, to inform the family of the purported transaction.
Counsel contends that the Respondents pleaded in their last Amended Statement of Claim, at paragraph 16 thereof, the conventions, customs and traditions governing the sale of landed properties in Sardauna Local Government Area of Taraba State. He argues that the Appellant admitted the pleading since he failed to counter this averment. He further contends that the Respondents called the Jauro (Village Head) of Gembu as their first witness, PW1, and the Appellant could not discredit his evidence. He therefore submits that the trial Judge was right to have used the unchallenged evidence before the court in arriving at his decision. He relies on Hope V Smurfit Cases Nig. Ltd [2007] 149 LRCN 1389 @ Pages 1413 paras EE, 1414 A & 1414 FPpe, where the Supreme Court held thus:

“Also firmly settled is that where the evidence of a plaintiff is unchallenged and uncontroverted and particularly, where the opposite party or side had the opportunity to do so it is always open to the trial court seised of the matter, to accept and act on such unchallenged and or uncontroverted evidence before it.”

Issue three is, whether the trial Court was right when it held that there was no valid sale of the land to the Appellant due to the failure to comply with the native law and custom pleaded by the Respondents. Counsel submits that the only valid point in paragraph 16 of the pleadings of the Plaintiffs is the issue of reporting the sale to the Jauro, (i.e. the Village Head). Counsel submits that the sale of the house in dispute was reported to the Village Head of Gembu who was on the throne at the time the sale took place. He refers to the evidence of DW1 and DW3. He argues that the Appellant did not report the sale to PW1, because PW1 was not the Jauro (Village Head) of Gembu at the time of the sale transaction. He contends that the trial Court declared the sale of the land to the Appellant invalid because the Appellant did not comply with the averment in paragraph 16 of the Amended Statement of Claim which partly requires the sale to be reported to the PW1. He submits that the decision of the trial Court also over looked the evidence of DW1 and DW3 that the transaction was reported to the Village Head at the time of the sale and was not reported to PW1, as PW1 was not the Village Head at the time of the sale.

Counsel submits that the Appellant called DW1 and DW2 who witnessed the sale and payment of the purchase price. He thus satisfied the requirement of having some people witness the sale of the house as pleaded in paragraph 16 of the Amended Statement of Claim, yet the trial Court held that the sale of the house is invalid. He therefore urged the Court to hold that the decision of the trial Court is perverse on this issue and ought to be set aside.
In addition, Counsel contends that the trial Court was wrong to have decided the parties case based on native law and custom, as the transaction between the Appellant and late Isa Adamu Mai Yasin was not based on native law and custom. Counsel submits that the Defendant’s pleadings and Counter-claim, coupled with his evidence as DW3, indicate that the contracting parties intended to document the sales transaction, hence the vendor, Isa Adamu Mai Yasin, handed over his title document, Exhibit B, to the Appellant, promising to bring a formal sale agreement in respect of the transaction between them. This he could not subsequently do for reasons of ill health and death. Counsel thus submits that the inference to be drawn is that the contracting parties never intended that their transaction be governed by any native law and custom or customary law. He urged this Court to strike out paragraph 16 of the Amended Statement of Claim as having no bearing on the case, and so, to discountenance the findings of the trial Court in relation to the said paragraph.

In responding to this issue, learned Counsel for the Respondents contends that the tradition and customs applicable in Sardauna Local Government Area of Taraba State are peculiar to their own ways of life and quite different from the Yoruba Customary Law guiding the Oloto family lands in Lagos State in the case referred to by the Appellant. He contends that the custom is to act as a check against the all fraudulent practices and guarantee the rights of citizens to acquire and own immovable properties in Sardauna Local Government Area of Taraba State. He further submits that, from the circumstances of this case, the principles of law that govern the transaction is that of the convention, customs and traditions that govern the practices of sale of landed properties in Gembu in Sardauna Local Government Area of Taraba State. Counsel contends that the failure of the Appellant and the vendor to go before the Jauro of Gembu before the alleged payments, (if any), rendered the whole transaction void.

FINDINGS
At the Lower Court, while the Respondents, (as Plaintiffs), claimed title to the property in dispute, the Appellant, as Defendant to the claim, also counter-claimed for title to the same property. Thus, both parties had an equal burden of proving their entitlement to the property. The Court would only give Judgment to whoever proved a better title. Both parties are however ad idem that ownership was once vested in the late Isa Adamu Mai-Yasin. This is common ground between the parties. The dispute now is whether he was divested of ownership by reason of his death or because he sold it before his demise. Since he is now deceased and cannot speak from beyond the grave, the onus lay on the Respondents, (i.e. his Estate and his father), as well as the Appellant, who were contesting ownership, to adduce credible evidence to prove in whom title was vested.

In proof of the claim the Respondents adduced evidence through 7 witnesses. By their collective evidence, the Respondents established that Isa Adamu Mai Yasin indeed acquired the land from one Alhaji Sali and paid for same. Alhaji Sali himself testified as PW5 confirming this. In particular, at page 79 of the Record, he stated thus:

“I sold land to him at Jauro quarters Gembu… I sold the farmland to him at N20, 000.00. When I sold the land to him we entered into an agreement written in Arabic language. I was the one who wrote the agreement. I wrote only one copy of the agreement… Sometime after the case in the Upper Area Court the defendant came and showed me a document and asked me whether it was the agreement I gave to Isa… I looked at the document and it was not the document I gave to Isa.”
Under further examination at page 102 of the Record, the witness expatiated as follows:

“I sold the land at the rate of N20,000.00 he paid the money in the presences of his father and we wrote a document evidencing the transaction. The document was written in Arabic language which I signed. The document was signed by only myself. Exhibit A is not the document which I wrote and signed and gave to Isa Mai Yasin. I am not aware of this document i.e. exhibit A”

The deceased thereafter erected a building on the land, which was still uncompleted at the time of his demise. He was contemplating some renovations on the house while on his sick bed at the Gembu General Hospital and even commissioned the PW4 to undertake such. However, Isa’s father (2nd Respondent) vetoed his instructions to PW4 and instead ordered the postponement of same until the deceased recovered from his illness. This was not to be because Isa never recovered, but passed away. From these pieces of evidence, it is deducible that the late Isa was still in possession of the property at the time he died. This is because he was evidently still exercising acts of ownership over the property.
On the other hand, the Appellant, to prove his own claim of title to the property, adduced evidence through three witnesses, (him inclusive), and tendered a sale agreement, Exhibit B, between late Isa and Alhaji Sali, PW5, as proof of his title to the property. His case, both on pleadings and before the Lower Court, is that Isa Alhaji Mai-Yasin, (deceased), sold the house to him before he died, that he paid for the house in the presence of the DW1 and DW2, and that the deceased handed over the title document to him, as in the Exhibit B, in the presence of these witnesses. Neither a receipt in respect of the sum of N150,000.00 he allegedly paid, nor a sale agreement in respect of the transaction, was given to him as the deceased allegedly promised to issue him a receipt for the purchase price paid at a later date, but died in the interim.
As afore-stated, the root of title for both parties is the late Isa Adamu Mai-Yasin. Whereas the Estate of the late Isa Adamu Mai-Yasin, as well as his father, contend that title to the property remained in the deceased’s estate, the Appellant contends that it was sold to him by Isa himself before his demise. It is pertinent at this stage to set out the relevant portions of the pleadings in this regard.

The Plaintiffs, (now Respondents), pleaded inter alia thus:
1. “The 2nd Plaintiff avers that the late Isa Adamu Mai-Yasin has before his death built a house at Jauro Gembu Ward, near Jauro Gembu Primary School, Gembu.
8. The 2nd Plaintiff avers that the defendant knew him, his family and his residence for over four decades and was aware of the illness of late Isa Adamu Mai-Yasin and did not inform him or any member of the family of any uncompleted transaction between him and late Isa before his death.
9. The 2nd Plaintiff avers that the defendant knew (sic) the death of late Isa Adamu Mai-Yasin, the defendant neither pay condolence visit to the family nor inform anybody that he bought a house from late Isa on which he did not give him purchase agreement.
12. The Plaintiff avers that after the inventory of the estate of late Isa had been taken and his estate was to be distributed, the defendant met him at Peggi market Gembu and told him that he bought the house of late Isa at Jauro Primary School Gembu and his witnesses are one Fulani Achaba boy, Ismaila a teacher of Jauro Gembu Primary School, who wrote and (sic agreement for them and Modibbo Ibrahim and payments were made in their presence.
14. The 2nd Plaintiff aver that he did not know the Achaba boy the defendant referred to and when he inquired from Ismaila (of Jauro Gembu Primary School) and Modibbo Ibrahim they all denied the defendant’s claims.
15. The 2nd Plaintiff avers that after he conducted an in-depth investigation into the claim of the defendant and could not see any truth in it, he reported the matter to the Jauro of Gembu who happened to be late Isa (sic) neighbour, the Village Head of Gembu and Area Court Judge.
16. The 2nd Plaintiff avers that the Jauro of Gembu conducted a thorough investigation into the defendant (sic) claim and also found it to be baseless and false, as he did not follow any known convention, customs and the traditions guiding sales of properties in Sardauna Local Government Are which provided that all transactions on landed properties are to have witnesses on both sides and have to be reported to the Jauro where an agreement is to be written and signed and payments made and registration fees paid to the Local Government.
17. The 2nd Plaintiff avers that the defendant could not produce his witnesses before the Jauro and only brought his brother Abdullahi who claimed that the defendant bought the house from the late Isa Adamu Mai-Yasin at the sum of N150,000.00 and payment was made along the road side at Peggi market Gembu without any written agreement.
19. The 2nd Plaintiff avers that when he inquired from Ismaila (of Jauro Gembu Primary School), he informed him that the defendant only requested him to write a sale agreement for sale for him and late Isa while at that time late Isa had died for over a month, so he declined writing such an agreement between the living and the dead.”

In response to these averments, the Defendant, (now Appellant), basically denied these averments and averred thus in his Statement of Defence:

“2. In defence to paragraph 7 the defendant aver (sic) that he does not know when exactly Isa Adamu M. Yasin died, it was his father 2nd Plaintiff that sent Isa Adamu’s brother and one Isa Lekitabba to inform the defendant in the defendant meat shop that Isa Adamu M. Yasin is late. Further that then 2nd Plaintiff sent these people to find out from the defendant if he the defendant bought the house in question from late Isa Adamu M. Yasin.
3.The defendant deny (sic) paragraphs 8 and 9 of the statement of Claim and aver that he was not aware of Isa Adamu M. Yasin’s illness and it was after the visit of those persons referred to in paragraph 2 that the 2nd Plaintiff by himself came to the defendant at the defendant meat shop in Pegge Gembu and informed the Defendant that Isa Adamu M. Yasin has died, and it was there and then that the Defendant informed him that he heard the message that the 2nd Plaintiff sent and that he the defendant bought the said house and paid late Adamu Yasin the sum of N150,000.00 as consideration.
4. the Defendant deny paragraphs 10 and 11 of the Statement of Claim and avers that the Defendant told the 2nd Plaintiff that his witnesses to the szle (sic) transaction are Adamu Kaka, Manga, Abdullahi Yori, etc, but not the people mentioned by the 2nd Plaintiff.
6. In response to paragraphs 14, 15 and 16 the defendant aver that he informed the village head that Isa Adamu Yasin gave him the sale agreement with which Isa Adamu Yasin bought thye (sic) land from one Sali and that he misplaced the document and that he need (sic) time to look for it but the Village Head did not give him any time but rather chose to conclude the matter abruptly and the defendant did not agree with the decision of the Village Head.
8. Further to paragraphs 14, 15 and 16 the defendant aver that he bought the said house in the presence of witnesses, further that before the defendant paid the purchase price he went with witnesses to inspect the (sic) in company of the late Isa Adamu Yasin.”

In respect of the Counter-Claim, this was the Appellant’s case on the pleadings:
“2. The Defendant aver that he bought the house at a consideration of N150,000.00k. Further that it was none (sic) Adamu Kaka that lend him the sum of N100,000.00k and the defendant added N50,000.00 and bought the house.
3.The defendant further aver that himself, late Isa Ahmadu Yasin, Adamu Kaka and others went to inspect the house and after that the parties and theri witnesses assembled at the Defendant’s meat shop at Peggi it was ther (sic) that the Defendant brought out N50,000.00k and Adamu Kaka gave the Defendant N100,000.00k and Abdullahi Yori counted the total sum of N150,000.00 and hand same to Isda (sic) Adamu M. Yasin.
4. The Defendant aver that after payment of purchase price, Isa Adamu M. Yasin have (sic) the Defendant the sale agreement between Isa Adamu M. Yasin and one Sali of Jauro Primary School Gembu which evidenced that Isa Adamu M. Yasin had bought the land upon which the house was built from Sali. Further the late Isa Adamu M. Yasin promised to bring a written agreement between himself and the Defendant in respect of this transaction. The late Isa Adamu Yasin did not bring the agreement before his father told the defendant that he has died.”

Predictably, the Plaintiffs also denied the above averments both in their “Reply to the Statement of Defence” and their “Defence to the Counterclaim.”

It is true that proof of customary law is very essential in non-customary courts such as the High Courts, magistrate courts and other non-customary courts of coordinate jurisdiction. Before these courts, customary law is initially a question of fact to be proved by evidence. Consequently, a party who asserts the application of customary law in any judicial proceedings must adduce evidence in support thereof to establish its existence, except if judicial notice has been taken of such custom by the courts.
Section 16 (1) of the Evidence Act, 2011 provides:
“16. – (1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence.
(2) The burden of proving a custom shall be upon the person alleging its existence.”
Sections 17 and 18 of the Evidence Act, 2011) provides:
“17. – A custom may be judicially noticed by the court if it has been adjudicated upon by a court of superior court of record.”
“18. – (1) Where a custom cannot be established as one judicially noticed, it shall be proved as a fact.
(2) Where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinion of persons who would be likely to know of its existence in accordance with Section 73.”
Consequently, there are two modes of establishing customary law before the court, i.e. proof by evidence and judicial notice. The onus is on the party who claims the existence of a particular customary law as applicable to a given situation to call evidence to establish the custom.
Section 70 of the Evidence Act, 2011 also provides:
“70. In deciding questions of customary law and custom, the opinion of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognised as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.”
Thus, the Act provides three levels of evidence in proof of customary law, and they are:
a. Opinions of traditional rulers or chiefs;
b. Opinions of other persons having special knowledge of the customary law and custom;
c. Any book or Manuscript recognised as legal authority by people indigenous to the locality in which such law or custom applies.
It is also desirable that a person, other than the person asserting it should testify in support thereof, as native law and custom are regarded as fact until proved. It will thus be unsafe to accept the statement of only one witness asserting the existence of a custom as conclusive. In the Queen ex parte Ekpega V Ozogula II (1962) ALL NLR 265 @ 268, Ademola, C.J.F., graphically noted that:
“It is of the greatest importance that native law and custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness.”
See also Oyediran V Alebiose II (1992) 6 NWLR (Pt. 249) 550; Diyelpwan V Golok (1996) 3 NWLR (Pt. 438) 599; Obi V Obijinde (1996) 1 NWLR (Pt. 423) 240.
In Ojemen V Momodu (2001) FWLR (Pt. 37) 1138, the Supreme Court held that it is settled law that native law and custom or customary law not judicially noticed can be proved by evidence of witnesses belonging to the community to show that that community in the particular area regard the alleged customary law as binding upon them.
Furthermore, it is a fundamental principle of law that where a party intends to set up and rely upon native law and custom, the custom alleged must be specifically pleaded. It is extremely important that the custom should be strictly proved. Though such proof is not by the number of witnesses called, it is not enough that one who asserts the custom should be the only witness. Another witness who is versed in the alleged custom should also testify. This is reiterated by the Supreme Court in the cases of Queen V Ozogula (1962) WRNLR 136; & Adeyemi V Bamidele (1968) 1 ALL NLR 31. The only exception and exemption is where the custom being relied upon has been so frequently used by the courts that judicial notice would be taken of it without evidence required in proof. See Orlu V Gogo-Abite (2010) 1 SCNJ 322.

In the instant case, it is irrefutable that the Respondents pleaded this custom in paragraph 16 of their Statement of Claim. Surprisingly, but yet significantly, the Appellant failed to counter this averment in any meaningful way. By the rules of pleadings, he is therefore taken to have admitted it and same needs no further proof. Nevertheless, the Respondents still went on to adduce evidence through PW1 to establish the custom. In particular, PW1 was the Jauro of Gembu, the Village Head/traditional ruler who, as the custodian of the customs of the area is imbued with the toga of an expert. His testimony at pages 74-75 of the Record was inter alia as follows:

“I am Jauro Aminu Salihu Amana… I am the Village Head or Jauro of Gembu, my duties as Village head are (1) revenue collections (2) confirming sales of land within Gembu. (3) Contracting marriages (4) settlement of disputes among the people. Before I became the Village Head of Gembu I was an Area Court Judge… The land on which the disputed land is situated is near Jauro Gembu Primary school. The procedure for sale of land in the Mambilla Plateau is as follows: – When parties want to sale (sic) and buy a piece of land the parties will go the ward head who will inspect the land. After confirming the ownership of the land all of them will come to the Jauro and state their intention, the parties will pay the price of the land before the Jauro who will issue them with Government receipt. The parties will sign the agreement while the Jauro will countersign, from there the documents will be handed over to the buyer thereby confirming the land to him. From my investigation this procedure was not followed. The house is situated at Jauro Gembu primary school within my quarter.

Under cross examination he reiterated thus at page 75 of the Record:

“Any sale of land in Gembu area must be witnessed by a Jauro.”
In the face of this, there was no contrary or rebuttal evidence. Therefore, the learned trial Judge acted rightly when he acted upon the evidence of the traditional ruler who, as the custodian of the customs of the people of Gembu, was well qualified under the provisions of Section 70 of the Evidence Act, 2011, to in decide the case before him. I therefore find no reason to disturb his finding of fact on this point. Issues two and three are therefore resolved in favour of the Respondents.

Issue Four
Finally, on issue four (4), which is whether the trial Court was right when it held that Exhibit B did not confer any interest in the land on the Appellant and thereby refused to accord any weight to it, learned Counsel for the Appellant submits that the trial Court was wrong in holding that Exhibit B did not confer any interest on the Appellant considering that Exhibit B was given to the Appellant after he paid the purchase price of the land. He argues that he thereby secured an equitable interest which may later be converted to a legal interest. Counsel further contends that that the trial Court wrongly evaluated the effect of Exhibit B in the light of the evidence adduced by the Appellant concerning it. He submits that Exhibit B was late Isa Mai Yasin’s own title document to the land. Counsel contends that the effect of the act of handling over the title document to the Appellant after the purchase price was paid to him is that he was transferring his title to the Appellant. He argues that the payment of the purchase price and Exhibit B creates an equitable interest in favour of the Appellant, as equity frowns at a situation where a land owner encourages a man to expend his money in expectation of securing an interest thereon, only for the land owner to later contend that no interest was transferred to the purchaser. He relies on Bosah V Oji [2002] 9 NSCQR 570 @ 587. Counsel therefore urged the Court to re-evaluate Exhibit B vis-a-vis the evidence adduced by the Appellant. Counsel finally urged the Court to allow the Appeal.

In respect of the exhibits before the trial Court, learned Counsel for the Respondents submits that Exhibit ‘B’ and ‘A’ are the same document, Exhibit ‘A’ being the photocopy of Exhibit ‘B’ given to the Respondents’ Counsel by the Appellant’s Counsel following service of a notice to produce on him. He contends that Exhibits ‘B’ (original) and ‘A’ (photocopy) were purportedly signed by five (5) people. One of them had already died even before the trial at the Lower Court. The surviving three (3) supposed signatories denied knowledge of the document, and of signing the said document in their testimonies before the trial Court. Counsel submits that fraud cannot be better proved than by the people who were said to have signed the document to have clearly and openly denied signing such a document or having knowledge of that document before the trial Court. He contends that their evidence on this fact was not shaken under cross examination. Counsel submits that as the document, Exhibit ‘B’, was of a doubtful origin, the trial Court was right when it held that the document does not confer a legal right on the Appellant. Counsel urged the Court to so hold.

Learned Counsel further submits that the law is trite that the presentation of a document or an instrument of grant by a claimant, (in this case, Exhibit B), does not automatically entitle the Appellant to a declaration that the house was sold to him. Instead, the court will enquire into a number of issues including:
(a) Whether the document is genuine or valid;
(b) Whether it has been duly executed, stamped and registered;
(c) The grantor has authority and capacity to make the grant;
(d) The grantor has in fact what he proposes to grant; and
(e) That the grant has the effect claimed by the holder of the instrument.

For this, he relies on Ayanwale V Odusami [2012] 204 LRCN 198 @ 219 U-JJ. Counsel submits that issues a, b, and e above are against the Appellant’s claim in this case. He submits that since the Appellant could not prove that the signatures on Exhibit ‘B’ were that of PW5, PW6 and PW7, the trial Court was right not to lend its stamp of authority on it. Wayne (West Africa Ltd) V Ekwunife [1989] 12 SCNJ 99 @ 109 lines 19-25 is relied on. Counsel therefore submits that the trial Court was right in holding that Exhibit ‘B’ does not confer any legal interest or right on the Appellant, and that the refusal of the Appellant to present exhibits ‘A’ & ‘C’ before this Honourable Court is fatal to his case.

Counsel further contends that PW3, PW4 and PW6 gave evidence to the effect that, when Isa Adamu Mai-Yasin (deceased) was still alive in hospital, he instructed PW4, (Philip Yeto), to commence renovation on the house in dispute. PW6, (the father of the deceased, and now the 2nd Respondent), did not allow this but supervised the renovation himself. He submits that all the three witnesses referred to stated that, within one week from that date, Isa Adamu Mai-Yasin died. Counsel thus submits that this is clear evidence that the house in dispute was still in possession of late Isa Adamu Mai-Yasin until his death. Counsel further submits that if late Isa Adamu Mai-Yasin had sold the house in dispute to the Appellant and had let him into possession, he would not, at that stage of his illness when he was closer to death than life, have instructed PW4 to commence renovations on the house.

Counsel submits that the Appellant, (as DW3), told the Court that the elder brother of late Isa Adamu Mai-Yasin told him that the family was aware of the transaction. Yet he was unable to mention the name of the said brother or produce him at the trial Court to confirm the assertion. He submits that the law is that he who asserts must prove, and reliance is placed on Sections 131 (1) and 136 (1) of the Evidence Act, 2011; Ogundepo V Olumesan [2012] 203 LCRN 157 @ 173 U; Hilalary Farm Ltd V M/V “Mahtra” [2007] 153 LCRN 34 @ 56 EE-JJ.
Learned Counsel further argues that DW1, under cross examination, said that the Jauro or Village head of Gembu was aware of the sale transaction. There was, however, nowhere in the pleading or Statement of Defence where this piece of evidence was pleaded. He therefore urged the Court not to attach any evidential value to this piece of evidence. He relies on Isheno V Julius Berger [2008] 33 (Pt. 1) NSCQR 296 @ 319 to submit that that evidence not based on pleadings goes to no issue.

Counsel further submits that there is nowhere in Exhibit “C” and in the Record of the trial High Court that the Appellant and his witnesses stated that the alleged vendor, now deceased, and the Appellant went before the Jauro (Village Head) or any Mai-Anguwa (Ward Head) in respect of the sale and payment of the sale price. He submits that the court will not allow any person or party or body to benefit from his own wrong and, for this, relies on Brossette Ltd V M/S Ola Ltd [2008] 154 LRCN 64 @ 104 JJ & 105 A. Counsel further contends that the evidence of DW1 relates only to the time PW6 or the 2nd Respondent reported the matter to PW1.

FINDINGS
In the instant Appeal, the Plaintiff approached the Lower Court on behalf of the Estate of the deceased. During the lifetime of the deceased, there was no issue as to the ownership of the property. The contest on title only arose after his demise when the Appellant suddenly claimed that the deceased sold the property to him before he died. Surprisingly however, he could not produce any receipt issued him for the purchase price he allegedly paid to the deceased or any other similar document to prove he purchased the land from late Isa before he died. What he produced instead was a questionable document purported to be a sale agreement between the deceased and Alhaji Sali, PW5, the initial vendor of the land to Isa. The original of the document is Exhibit B, while its photocopy is Exhibit A before the Lower Court, both of which were produced from the Appellant’s custody. As was submitted by the Respondents’ Counsel in their Brief, it is in evidence that five persons are named as witnesses in the Exhibit B. Of these persons, one of them, i.e. Alhaji Garba Bangaro, died at least 10 years before the trial at the Lower Court, which was also a significant period before Isa bought the land itself and the Exhibit B was allegedly made; while the other three testified in Court denying that they ever signed the document produced by the Appellant, i.e. Exhibit B, that the deceased bought the land from Alhaji Sali. More importantly, Alhaji Sali himself, PW5, vigorously denied the authenticity of the Exhibit as the document evidencing the sale transaction between him and the late Isa. He clearly stated that the sale agreement in respect of the land he sold to Isa was written by him in Arabic and he was the sole signatory. In short, PWs 3, 4, 5 and 6 all labelled the document a fake. This document was therefore discredited before the Lower Court, and so, the Lower Court acted rightly in refusing to place any premium on it.

As for the DW1 and DW2 who testified to the effect that the Appellant paid a purchase price for the land in their presence, their evidence fell far short of proof, even for sale of land under customary law. It is true, as has been submitted by learned Counsel for the Appellant, that generally, in sale of land transactions under customary law, it has been held that it is not always necessary that same must be reduced into writing. It shall be enough if the claimant is able to establish that he paid the purchase price in the presence of witnesses and the land was handed over to him. However, even if it is given that DW1 and DW2 witnessed when money changed hands, there is no evidence that the property was ever handed over to the Appellant by the deceased. I therefore find no reason to disturb the findings of the Lower Court.

From the law as expounded in the decided authorities referred to and from the peculiar facts of the case before the trial Court, the Appellant had the onus to prove that he actually bought the land from the late Isa before he died. This is because it is the Appellant who asserted affirmatively that ownership had changed hands from the deceased, who is now unable to speak for himself. Thus, he had the onus of proof to establish such facts vide the provision of Section 133 (1) of the Evidence Act. See Olodo V Josiah (2010) 12 SCNJ 49. It is incumbent on a party who asserts the existence of a fact to prove same. The Respondent failed to adduce evidence, documentary or otherwise, to depict clearly that the property had been sold to him by the deceased before he died.
In the case of City Property Development Ltd V AG Lagos State (1967) 1 ALL NLR 52, the court held that, by not producing the document by which the land was conveyed to him in each case, the Plaintiff failed to establish how he came to be the beneficial owner of each of the three pieces of land. Not only that, the onus is on the Plaintiff to prove his root of title and the only way to do this is to produce the deed of conveyance by which the land was conveyed and also to call those who conveyed the land to him to testify to that effect.

In the pleadings before the trial Court, the Defendant admitted that the land in dispute had previously belonged to 2nd Plaintiff’s/2nd Respondent’s son, Isa. Having so admitted, the onus of proof was cast upon the Defendant to show that title to the land in dispute which was previously in the 2nd Plaintiff’s son, had been transferred to him. See Adedeji V Oloso (2007) 1 SCNJ 397.

In an action of title to land, where parties agree that title was previously vested in one of them, the burden is on the other party to prove that the party, in whom title had been vested, had been divested of it and how this was accomplished. See Ufomba V Ahuchaogu (2003) 4 SCNJ 231 per Ogundare, JSC. Once it is shown that the original ownership of property is in a party, the burden of proving that that party has been divested of ownership rests on the other party. See the decisions in Orlu V Gogo-Abite (2010) 1 SCNJ 322; & Amuroti V Agbeke (1991) 6 SCNJ. Thus, where the root of title is admitted, the onus to prove a change in the ownership of the land in dispute shifts to the party who asserts the change. See Odunsi V Bamgbala (1995) 1 SCNJ 275.

In the instant case, the Appellant woefully failed to prove that the late Isa sold the property to him and that he paid the purchase price he alleged to the deceased. Exhibit B which he brought forth as proof that he purchased the property was so discredited before the Lower Court that no reasonable court or tribunal would act on it. The evidence of PWs 2, 4 and 6 established the contrary that the deceased was firmly in possession of the property and exercised accts of ownership over the property even while on his sick bed up to the week before he died. Contrary to the submission of Counsel for the Appellant, the Appellant failed to establish that he had any equitable interest in the property which the Lower Court would have been obliged to enforce.

On the submission of learned Counsel for the Appellant that the alleged sale transaction was reported to the Jauro/Village Head of Gembu who was on the stool before the PW5, I agree with learned Counsel for the Respondents that this was not covered by the pleadings. This was a fact which was crucial to the case of the Defendant/Counterclaimant and, if it existed prior to the trial, should have been disclosed in the pleadings to afford the Respondents time to respond to same. Having not been pleaded, any evidence that may have been adduced in that regard goes to no issue and must be disregarded. It is no wonder that the Lower Court did not feel obliged to place any premium on it. Based on all the above, I must again resolve issue four in favour of the Respondents.

In the result, having resolved all four issues against the Appellant, I find the Appeal devoid of any merit. It ought to fail and it failed. It is accordingly dismissed. The Judgment of the Taraba State High Court in Suit No.TRSG/7/2008 delivered on 11th December, 2012, is accordingly affirmed. I assess costs of N50,000.00 to the Respondents against the Appellant.

Appeal dismissed.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead judgment just delivered in this appeal by My Learned Brother JUMMAI HANNATU SANKEY JCA. I agree with My Lord’s analyses and conclusions on the issues in this appeal. For the reasons so ably set out in the said judgment, I too hereby dismiss the appeal.

I abide by the consequential orders made in the said lead judgment.

ADAMU JAURO, J.C.A.: I read in advance the lead judgment prepared and delivered by my learned brother, J. H. SANKEY, J.C.A. My Lord dealt with all the issues raised for determination in the appeal excellently, and I am in complete agreement that the appeal is lacking in merit and should be dismissed.

I therefore adopt the judgment as mine and also dismiss the appeal in the like terms inclusive of the order made as to costs.

Appearances

Mr. D.O. OvoyentaFor Appellant

AND

Mr. Ola KassimFor Respondent