SANI MUSTAPHA BABURA v. SAIDU MOHAMMED (2016)

SANI MUSTAPHA BABURA v. SAIDU MOHAMMED

(2016)LCN/8130(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of January, 2016

CA/J/99/2014

RATIO

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN LAND MATTERS

The law is settled that in land matters, the burden of proof is on the party who claims title to or ownership of land which in most cases is the Plaintiff. See Olodo v. Josiah (2010) 18 NWLR (pt. 1225) 653 S.C., Adenle v. Oyegbade (1967) NWLR 136, Oyeyiola V. Adeoti (1975) NWLR PG. 10. In the case of Cyprain IONWUAMA V. Loius Ezeokoli (2002) 5 NWLR (pt. 760) 353, the Supreme Court per Uwaifo JSC held, thus:
“The general principle governing civil matters, proof is upon the balance of probabilities or preponderance of evidence. This does not mean that the onus to prove title shifts from the plaintiff, it does not. What has been firmly established as the law is that the plaintiff, in order to succeed in his claim for a declaration of title must bring forward cogent evidence which must tilt the imaginary scale in his favour. He is not expected to prove his case beyond reasonable doubt as in criminal case, nor is there a midway in the standard of proof between criminal and civil in such a claim. All that is required is that the evidence produced by the Plaintiff to support title must be such that can support a declaratory relief and which, in the end, when placed on the scale of justice, will tilt in his favour.” per. TIJJANI ABDULLAHI, J.C.A.

LAND LAW: TITLE TO LAND; WHAT A PLAINTIFF WHO DESIRES TO SUCCEED IN A DECLARATION TO TITLE TO LAND MUST ESTABLISH

The law is settled that a Plaintiff desirous to succeed in his claim for declaration to title to land in dispute must regard establishing the identity of the land in dispute as a sine qua non. See Odofin v. Oni (2001) 3 NWLR (Pt. 701) 488. In Ukogu v. Mbanugo & Ors. (supra) This Court per Abdulkadir, JCA held; thus:
“This law is clear that where there is a dispute as to the identity of the land in dispute, then it is for the Plaintiff claiming declaration of entitlement of right of occupancy to the land, to establish the identity of the land with certainty.”
Also In Musa Iyaji v. Sule Eyigege (1987) NWLR (Pt. 61) 623, the Supreme Court held:
“…the first duty of any claimant to title to land is to show exactly and precisely a defined and identifiable area to which his claim relates, if the claimant fails on this first hurdle no further questions need arise. per. TIJJANI ABDULLAHI, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE TRIAL COURT TO EVALUATE AND WHEN THE APPELLATE COURT CAN DISTURB THE FINDINGS OF FACT OF A TRIAL COURT

The duty of evaluation of evidence is primarily within the realm of the trial Court. An Appellate Court will not ordinarily disturb the findings of fact of a trial Court unless such findings are perverse and not supported by evidence. It is only trial Court that has the singular advantage of seeing and listening to a witness, thereby witnessing his demeanor as he gives evidence and assessing him. See Amadi v. Federal Republic of Nigeria (2008) LPELR – 441 (SC), Ebba v. Ogodo (1984) 1 SCNCR 372 Obodo v. Ogba (1987) 2 NWLR (Pt. 541) and Tapshang v. Lekret (2000) 13 NWLR (Pt. 684) Page 381- Per Mukhtar JSC. per. TIJJANI ABDULLAHI, J.C.A.

COURT: DUTY OF COURT; THE DUTY OF AN APPELLATE COURT TO CONSIDER ALL THE ISSUES PLACED BEFORE IT

The law is trite that an Appellate Court has a duty to consider all the issues placed before it. However, where it is of the view that a consideration of one is enough to dispose of the appeal, it is not under any obligation to consider all the other issues raised. See Okonji v. Njokanma (1991) NWLR (Pt. 202) 131 at 146. per. TIJJANI ABDULLAHI, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

SANI MUSTAPHA BABURA Appellant(s)

AND

SAIDU MOHAMMED Respondent(s)

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Gombe State High Court of Justice, presided over by Hon. Justice H. A. Barka (as he then was) delivered on the 12th day of July, 2012 wherein the learned trial Judge entered Judgment in favour of the Respondent, against the Appellant. The facts of the case as can be gleaned from the record of proceedings are that:
The Appellant by his amended writ of Summons and statement of claim instituted this action at the Lower Court and sought for the following reliefs against the Respondents:

“a. Declaration that the Plaintiff is the legal and rightful owner of a land situate in Gombe covered by a Certificate of Occupancy No. BA/5225 and no other person/body including the defendant.
b. Declaration that the piece of land covered by a Certificate of Occupancy No. BA/5225 is not the same piece of land as reflected on the letter of grant No. BA/780 issued to the defendant.
c. An order directing the defendant to demolish the structures wrongfully

erected on the Plaintiff’s land.
d. The payment of the sum of one million (1,000,000.00) general damages against the defendant for trespass commited by the defendant in respect of the said parcel of land which trespass is still continuing.
e. N300,000.00 cost of this action, See. Pages 27-28 of the record of appeal.
The defendant/Respondent denied liability and by his amended statement of defence and counter-claim dated 15/1/2012, he counter-claimed against the Plaintiff/Appellant for the following:
“a. A declaration that the defendant/counter claimant is the lawful and rightful owner of the land measuring 450sq meters known as plot B.542 and covered by state grant no. CRR/2706/3 dated 20/11/1984, upon which he built his residence.
b. An order perpetually restraining the Plaintiff/Defendant or any of his privies and/or cronies from interfering and disturbing the defendant/counter claimant from peaceful occupation and enjoyment of his legitimately acquired and owned land.
c. The sum of two

million Naira general damages for all the harrowing, torments and trespass inflicted upon the defendant/counter ? claimant by the plaintiff/defendant misconceived claim.
d. That this suit is a product of utter confusion and thus frivolous and vexatious to the counter claimant and thus liable to be dismissed.
e. The sum of five hundred thousand naira cost of this action paid to Counsel handling the brief. See page 93 of the record of appeal.

The issues having been properly joined, the matter proceeded to hearing. At the close of hearing, learned trial Judge in his considered Judgment found as follows:
?All the two issues having been determined against the plaintiff, his case fails and is dismissed. The claim of the defendant/counter claimant having succeeded, his claim for a declaration of title to the plot of land known as plot B.542 covered by a state grant No. CRR/2706/3 dated the 20/11/1984 succeeds and is accordingly granted?.

?Dissatisfied with the Judgment of the trial Court, the Appellant filed a Notice of Appeal consisting

five grounds as follows:
GROUND ONE:
“The decision of the High Court of Justice Gombe State is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence adduced before the trial Court”
GROUND TWO:
“The Gombe State High Court of Justice grossly erred when it confirmed the Appellants plot of land No. B.29 with Certificate of Occupancy No. BA/5225 to the Respondent thereby occasioned gross injustice”.
GROUND THREE:
“The High Court of Justice Gombe State was in gross error when it held that “…The defendant/counter claimant case impresses more, I similarly resolve this issue in favour of the defendant/counter claimant and hold that he has proved his claim as required by law”. This has occasioned manifest injustice”.

GROUND FOUR:
“The High Court of Justice Gombe State was in gross error, when it confirmed the disputed plot of land to the Respondent base on what it’s called long possession. Thereby occasioned injustice”.
GROUND FIVE:
“The High Court of Justice Gombe State was in gross error when it awarded the sum of N20,000 to the Respondent, thereby occasioned injustice”.
The Appellant seek the following reliefs from this Court:
a. An order to set aside the decision of High Court of Justice No. 3 Gombe in suit No. GM/144/2010 between Sani Mustapha Babura V. Sani Mohammed .
b. Re-evaluate the evidence adduced before the trial Court and confirm the disputed plot of land No. B29 with Certificate of Occupancy No. BA/5225 to the Appellant.
c. In the alternative an order for a retrial before another Court and Judge.
d. Cost of the appeal to be borne by the

Respondent.

From the five grounds of appeal reproduced supra, learned Counsel for the Appellant M. A. Galaya Esq. in a brief settled by him, distilled three issues for determination to wit:
“1. Whether the trial Court was not in gross error in affirming the disputed plot of land No. B29 with a Certificate of Occupancy No. BA/5225 to the Respondent. This issue is distilled from grounds 1 and 2 of the Notice of Appeal.
2. Whether the trial Court was right in granting the Respondent’s reliefs based on the mere fact that the Respondent has impressed the Court, instead of evaluating the evidence and weighing it on an imaginary scale. This issue is distilled from grounds 1, 3 and 5 of the Notice of Appeal.
3. Whether or not the Respondent has proved long possession of the disputed land to have warranted the trial Court confirmed the land to him this issue is distilled from ground 4 of the Notice of Appeal”.

For his part, learned Counsel to the Respondent, in a brief settled by C.D. Kadala Esq. distilled three issues for

determination to wit:
?1. Whether from the evidence before the Court the Appellant proved the identity of the land granted to him by Certificate of Occupancy No. BA/5225 particularly measured as 720 square meters on the survey plan. This issue is distilled from ground 2.
2. Whether the trial Court properly evaluated the evidence before the Court in confirming title of the disputed land to the Respondent. This issue is distilled from grounds 1, 3 and 5.
3. Whether the Respondent has proved long possession of the disputed land to have warranted the trial Court to confirm the land to the Respondent. This issue is distilled from ground 4?.

?A closer look at the issues formulated by the learned respective Counsel to the parties, the issues seem to be similar though couched differently. I am of the considered view that any of the issues adopted will conveniently determine this appeal. I therefore adopt the issues formulated by the learned Respondent?s Counsel which in my view are more apt and precise as the ones calling for determination in this

appeal.

In arguing the first issue as reproduced supra, learned Counsel for the Appellant submits that in a civil case as in the instance case, the Plaintiff must always prove his case on the balance of probability by adducing credible and unchallenged evidence in accordance with Sections 131 and 134 of the Evidence Act, 2011 (as amended). He cited and relied on the cases of Ojo v. Gharoro (2006) 138 LRCN 1652 at 1660 Ratio 14, Abubakar v. Joseph (2008) 160 LRCN at 166 Ratio 12 and Sokwo v. Kpangbo & Ors (2008) 159 LRCN Page 1 at Page 6 Ratio 4.

Learned Counsel submits that the Plaintiff cannot rely on the weakness of the defendant’s case to succeed, as the defendant can only succeed on the strength of his case alone. He cited and relied on the case of Nkado v. Obiano (1997) 50 LRCN Page 1064 at 1090 Ratio 8.

Learned Counsel submits further that for the Plaintiff to succeed, he must establish the identity, size and location of the disputed farmland with precision, except where the identity of the land is not issue between the parties. He relied on the cases of Ekpemupolo v. Edremoda (2009) 176 LRCN Page 235 at 239 Ratio 2 Atanda v.

Iliasu (2012) 214 LRCN 220 at 230 Ratio 13.

In his further submission, learned Counsel contended that from the evidence adduced before the Lower Court, the Appellant has established his case on the balance of probability with credible evidence over the disputed plot of land. He contends that from Exhibits 1 and 7 it is obvious that the Appellant was granted a right of occupancy by the government in 1982 and subsequently issued Certificate of Occupancy. He cited and relied on the case of Otukpo v. John & Anor (2012) LRCN page 141 at 149 Ratio 8.

Learned Counsel submits further that the trial Court ought to have further averts its mind to the obvious fact that the disputed land was initially allocated to the Appellant since 1982 and was issued a Certificate of Occupancy as proof. It is the Appellants’ contention, that the logical thing the trial Court ought to have done was to simply confirm the disputed plot of land to the Appellant based on the well settled principle of qui pro prior test tempore portio rest jure.
Learned Counsel contended that the trial Court ought to have averted its mind to the credible and unchallenged evidence

and document placed before it. He relied on the cases of Inegbedion v. Selo-Ojemen & Anor (2013) Vol. 216 LRCN page 53 at 57 Ratio 2 and Ighreriniovo v. S.S.S. Nig. (2013) Vol. 224. LRCN (Pt. 1) Page 63 at 67 Ratio 3.

He further contended that Exhibit 12 tendered by the Respondent and admitted is not a legal document transferring title of land to the Respondent, having not been duly registered in accordance with Section 15 of the Land Registration Laws Cap 80 Laws of Bauchi State which is applicable in Gombe State by virtue of Edict No. 1 1996. He relied on the case of Abubakar v. Waziri & Ors. (2008) Vol. 160 LRCN Page 72 at 76 Ratio 4. He added that Exhibits 6, 10 and 11 ought to have been expunged by the trial Court. He cited and relied on the case of Nwaogu V. Atu (supra).

Learned Counsel submits that the trial Court ought to have earlier granted title over the land base on the equitable maxim of first in time prevails as held in Ayanwale v. Odusami (2012) Vol. 204 LRCN page 198 at 204 Ratio 6 and Rabiu V. Adebajo (2012) Vol. 209 LRCN page 19 at 22 Ratio 2.

?In his final submission, he submits that the Appellant has established his title

over the disputed land with credible evidence in line with Section 131 and 134 of the Evidence Act, 2011 (as amended). He cited and relied on Abubakar v. Joseph (2008) 160 LRCN 159 at 166 Ratio 12, Sokwo v. Kpangbo & Ors. (2008) Vol. 159 page 1 at page 6 Ratio 4 and Matanmu & Ors. V. Dafa & Anor. 2013) Vol. 221 (Pt. 2) LRCN Page 223 at 230 Ratio 5. He urged us to set aside the decision of the trial Court and to further re-evaluate the evidence adduced and confirm the disputed land to the Appellant.

In response to the submission of the learned Appellant’s Counsel, learned Respondent’s Counsel submits that in a claim for a declaration of ownership or title to land, the first and foremost duty on the claimant is to describe the land in dispute with reasonable degree of certainty and accuracy that its identity will no longer be in doubt. He maintained that the land must be so described that the Court will be certain and a surveyor would have no problem identifying its coordinate monuments. He cited and relied on Awote V. Owodunmi No. 2 (1987) 2 NWLR (Pt. 57) 365, Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 122, Echenim Ofume v.

Ngbeke (1994) 4 NWLR (Pt. 341) 746 Ratio. 2.

Learned Counsel contends that the issue of proof of identity of land in dispute is sine-qua-non to establishing a case of title to land. Relied on the cases of Agbonita v. Aiwereoba (1998) 1 NWLR (Pt.70) 325, Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182 at 184 and Olusanmi v. Oshasona (1992) 6 NWLR (Pt. 245) 22 at 23 and 24. He added that where the claimant failed to prove the identity of the land claimed, his claim will fail and will be dismissed. He referred to the case of Odicher v. Chibogwu (1994) NWLR (Pt. 354) 78, Oluwi v. Eniola (1967) NWLR 339.

Learned Counsel submits that where the Plaintiff?s claim is related to an area tied to a plan the Plaintiff must show that the plan corresponds with the area in dispute. He argued that it is not enough for a party relying on a plan to simply file same without linking its contents to his ownership of the land. He relied on the case of Oba Fasina & Anor V. SGT Ogunkayode & Ors (2005) All FWLR (Pt. 2830) 116 at 136-7.
Learned Counsel States that in the instant case the Appellant claimed that he was granted a piece of land covered by

Certificate of Occupancy No. BA/5225 and the plan attached to the certificate shows that the Appellant was granted a piece of land measuring 720.21 square metres and described the land as being bounded by close street at its northern end. He contends that the Appellant must satisfactorily prove these facts that the land in dispute is the one upon which the Respondent built his house.

Learned counsel submitted that the trial Court was right when he found as a fact that the land claimed by the Appellant is different from the land in dispute. He argued that the finding of the trial Court relating to the identity of the land has not been specifically challenged by way of appeal in his matter. He relied on the case of Standard Engr. NBC (2006) 137 LRCN 1330 at 1333 where the Supreme Court held that where finding of facts has not being appealed against by the Appellant, the consequence in law is that the said findings of fact are deemed to be correct. He relied on the case of Nwokidu v. Okanu (2010) 183 LRCN 114, Madam Salami V. Oke (1987) 4 NWLR (PT. 63) at 17.

?Learned Counsel submitted that the Certificate of Occupancy specifically described the

feature and dimension of the land granted by the plan attached to the certificate. He states that the land granted to the Appellant measures 720.21 square metres with a road passing from north to south. He maintained that the land on the ground which is in dispute measures 450 square metres with road from west to the east. He argued that the Lower Court was right in holding that where the Plaintiff failed to prove the identity of the land in dispute, his other evidence on other issues may be hanging as there will no land upon which to grant a declaration of title in his favour. He relied on the case of Karimu v. LAGOS State Government (2012) 5 NWLR (pt. 1294) 620.

Learned Counsel argued further that the Lower Court rightly applied the law when it held that the evidence of PW3 seeking to explain the dimensional difference evident on the document Exhibit 1 and the fact of the ground in respect of the land in dispute, is legally without value. He submits that the best evidence of the content of a document is the production of the document itself. He added that oral evidence is inadmissible to add or subtract from or contradict the contents of a document. He

cited and relied on the cases of Ojoh v. Kamalu (2006) 136 LRCN 1130 at 1144 Ratio 25 – 26, Inter Messengers Ltd V. Pegofor Industries Ltd (2005) 127 LRCN 1134 at 1137 Ratio 1. Learned Counsel submitted also that the appellant failed to establish any error in the judgment of the Lower Court and that where the finding of the Lower Court is not perverse, the Appellate Court will not interfere with the judgment. He cited and relied on the cases of EBENOGWU V. ONYEMADBINI (2008) 3 NWLR (pt. 1011) 239 Ratio 5, 6 and 7. He urged us to affirm the decision of the Lower Court on this issue and dismiss the appeal of the Appellant.

does not mean that the onus to prove title shifts from the plaintiff, it does not. What has been firmly established as the law is that the plaintiff, in order to succeed in his claim for a declaration of title must bring forward cogent evidence which must tilt the imaginary scale in his favour. He is not expected to prove his case beyond reasonable doubt as in criminal case, nor is there a midway in the standard of proof between criminal and civil in such a claim. All that is required is that the evidence produced by the Plaintiff to support title must be such that can support a declaratory relief and which, in the end, when placed on the scale of justice, will tilt in his favour.”

In the instance case, the Appellant’s claim is that he is the rightful owner of a piece of land covered by Certificate of Occupancy NO. BA/5225 measured 720.21 sqm which is the same land the Respondent is occupying. The Respondent’s defence is that the land in dispute is measured 450 with road form west to the east. The law is trite that where there is dispute as to the area and boundaries of the land, the Plaintiff who relies on plan must show that his plan

corresponds with the area claimed or in dispute. He may do this by showing that the description of the land in his pleading and as given in evidence in support is in complete accord with the plan filed along with the statement of claim and relied on by him. This is to ensure that the land is certain both in size or boundary and location. See Adenle v. Olude (2002) 9-10 S.C. 124, Aro v. Obaloro (1968) NMLR 238; Okosun Epi v. Aigbedion (1973) NNLR 31. In the case of Archibong v. Ita (2004) 2 NWLR (Pt. 858) 590 the Supreme Court per Pat Acholonu JSC. Held.
“For it has long been settled that where both parties in civil did not agree as to the identity of the land in dispute it becomes the bounden duty of the initiator of the action to produce a survey plan”.

In proving his case, the Appellant called a total number of four witnesses and tendered 9 exhibits. Exhibit 1 is the Certificate of Occupancy No. BA/5225 attached to it is the survey plan of the plot claimed by the Appellant. A closer look at the plan revealed that the plot is measuring 720.21 sqm and bounded by close street at the northern end and road by the south. See pages 11-12 of

the record.
The Respondent in rebuttal to the Appellant’s claim, led evidence to the effect that the land he is occupying is measured 450 square meters and dimensionally different from what is borne on Exhibit 1.

dismissed.”

In view of all that has been said supra, I am of the opinion that the Appellant failed woefully on the duty placed on him to show clearly the Respondent’s plot is the same plot claimed by him. To this end, the Appellant’s claim must fail. I so hold. This issue is resolved in the Respondent’s favour and against the Appellant. It is my firm view that the crux of this appeal has been disposed of as treating the remaining issues will amount to an exercise in futility.

The law is trite that an

Appellate Court has a duty to consider all the issues placed before it. However, where it is of the view that a consideration of one is enough to dispose of the appeal, it is not under any obligation to consider all the other issues raised. See Okonji v. Njokanma (1991) NWLR (Pt. 202) 131 at 146.

In conclusion, this appeal lacks merit, same is hereby dismissed. The Judgment of Gombe State High Court of Justice delivered by Hon. Justice H. A. Barka on the 12th day of July, 2012 is hereby affirmed. N50,000 costs are awarded in favour of the Respondent and against the Appellant.

?JUMMAI HANNATU SANKEY, J.C.A.:

I agree entirely with the Judgment of my learned brother, Abdullahi, JCA, just delivered. He has covered all the issues canvassed in the Appeal. I have nothing more useful to add to his reasoning, which I hereby adopt as mine too.
This Appeal fails and it is dismissed by me. I abide by the consequential orders made therein.

SAIDU TANKO HUSAINI, J.C.A.:
I had the privilege of reading in draft the lead Judgment just delivered by my brother, Justice

Tijjani Abdullahi, PJ with whom I also concur that this appeal lacks merit. The lead Judgment has addressed all salient issues. I have nothing to add but to adopt same as mine. I also abide by other consequential order as contained in the lead Judgment.

Appearances

Mr. M. A. GalayeFor Appellant

AND

C. D. KadalaFor Respondent