HABIBU ALASAN TUDUN WUZIRCHI v. UMAR YUSUF MUHAMMED (2016)

HABIBU ALASAN TUDUN WUZIRCHI v. UMAR YUSUF MUHAMMED

(2016)LCN/8521(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of April, 2016

CA/K/220/2005

RATIO

APPEAL: WHETHER FAILURE OF THE RESPONDENT TO FILE A BRIEF OF ARGUMENTS WILL MEAN THAT JUDGMENT BE ENTERED FOR THE APPELLANT
It must be stated from the onset that the failure of the Respondent to file a brief of arguments in this appeal does not automatically mean that judgment must be entered for the Appellant. The Appellant still has the duty of convincing this Court that he is entitled to judgment. This Court is not bound to accept the arguments of the Counsel to the Appellant as gospel truth – Stabilini Visioni (Nig.) Ltd v. Sanderton Ventures Ltd (2011) 8 NWLR (Pt. 1249) 258. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Oruboko v. Oruene (1996) 7 NWLR (Pt. 462) 555, Eya v. Olopade (2011) 11 NWLR (Pt. 1259) 505 and Independent National Electoral Commission v. Nyako (2011) 12 NWLR (Pt. 1262) 439. In Edonkumoh v. Mutu (1999) 9 NWLR (Pt. 620) 633, Ibiyeye, JCA stated at 652 E-F thus:
“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
APPEAL: NOTICE OF APPEAL; ESSENCE AND NATURE OF NOTICE OF APPEAL
Now, it is settled law that the only known and legitimate way or method of laying a complaint before a higher Court or Tribunal, to show grievances of an aggrieved party against a decision taken by an inferior Court or Tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421, Dingyadi v. Independent National Electoral Commission (No. 1) (2010) 18 NWLR (Pt. 1224) 1. The notice of appeal of the Appellant dated the 24th of April, 2003 is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike v. Attorney General Federation (2007) 8 NWLR (Pt. 1035) 1, Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1 and First Bank of Nigeria Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria v. Greenstone Ltd (2009) 10 NWLR (Pt. 1150) 624.
It is elementary that an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba v. Egberongbe (1999) 8 NWLR (Pt. 685) 485, Nigerian Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56, Ombugadu v. Congress for Progressive Change (2013) 3 NWLR (Pt. 1340) 31. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
EVIDENCE: TITLE TO LAND; BURDEN OF PROOF IN AN ACTION OF TITLE TO LAND
It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Lawal v. Akande (2009) 2 NWLR (Pt. 1126) 425, Chukwu v. Amadi (2009) 3 NWLR (Pt. 1127) 56, Usung v. Nyong (2010) 2 NWLR (Pt. 1177) 83, Ogunjemila v. Ajibade (2010) 11, NWLR (Pt. 1206) 559. The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities – Kaiyaoja v. Egunla (1974) 12 SC 55, Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134, Akintola v. Solano (1986) 2 NWLR (Pt. 24) 298, Eyo v. Onuoha (2011) 11 NWLR (Pt. 1257) 1, Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
LAND LAW: TITLE TO LAND; HOW SHOULD A PARTY ESTABLISH HIS CLAIM FOR DECLARATION OF TITLE
To succeed in a case for declaration of title, a party must establish the method by which he acquired the said title; ownership of land cannot be claimed without first establishing that ownership – Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, Nwofor v. Nwosu (1992) 9 NWLR (Pt. 264) 229, Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Emegwara v. Nwaimo (1953) 14 WACA 347, Atuanya v. Onyejekwe (1975) 5 ESCLR 359, Obawole v. Coker (1994) 5 NWLR (Pt. 345) 416, Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370 at 382, Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) 25, Obineche v. Akinsobi (2010) 12 NWLR (Pt. 1208) 383. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

HABIBU ALASAN TUDUN WUZIRCHI – Appellant(s)

AND

UMAR YUSUF MUHAMMED – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment): The action before the lower Court was commenced in 2001 by Yusuf Mohammed Tudun Wuzirchi, as plaintiff, against his brother Alasan Mohammed Tudun Wuzirchi, as defendant, and his claims were for:

i. A declaration that both the Plaintiff and the Defendant are joint owners of the house situate at Tudun Wuzirchi Quarters in Kano Municipality Local Government Area of Kano State.

ii. A perpetual injunction restraining the Defendant from interfering with the Plaintiffs right to stay and occupy and peaceful enjoyment in the said house.

iii. Cost of the action.

The case of the plaintiff on the pleadings was that the defendant was his brother of same mother and that the property in dispute was situated in Tudun Wuzirchi and was bounded in the east by Shamaki, on the west by Mamuda, on the south by Shamaki and on the north by a road. It was his case that about forty five years ago their mother, Hajiya Rakiya, was the Jakadiya to the mother of the late Emir of Kano, Alhaji Mohammed Sunusi and who was known as the Mai Babban Daki and that at this time he and the defendant were

young and unmarried and they resided with their mother at Bakin Kasuwa. It was his case that their mother approached the mother of the Emir, Mai Babban Daki, to request for a house to live with his two children who were now of age and the Mai Babban Daki directed her subordinate, Jafaru Babban Zagi, to search for a vacant house and that two houses were presented to their mother to choose from, one in Kabara Quarters and the other in Tudun Wuzirchi and that their mother chose the house in dispute in Tudun Wuzirchi.

It was the case of the plaintiff that he and the defendant moved into the house with their mother and that after the death of their mother, the two of them retained possession of the house as joint owners and they resided in the house peacefully and that at a point in time he left Kano on business and stayed in Gwarzo for about six years and that when he returned he discovered that the defendant and his children had built up all the spaces in the house. It was his case that he returned to Kano with his wife and his children and that when he wanted to resume his joint ownership of the house, the defendant denied him space and he had to rent a

house until their relatives intervened and insisted on his moving back into the house and the defendant thereupon relinquished one room for him to live in. It was his case that at a time thereafter the defendant insisted that he must vacate the house that when he refused, the defendant commenced an action in the Kano State Rent Tribunal seeking to eject him from the house.

The defendant denied the case of the plaintiff in its entirety and it was his case that both of them were born in Garko in Garko Local Government Area of Kano State and that he had left Garko for a long time and had settled in his house in Tudun Wuzirchi, the property in dispute, before their mother left Garko and joined him in Kano and that he was married with children before he left Garko. It was his case that he was the legal and lawful owner of the property which is at No. 26, Tudun Wuzirchi Kano and had been in possession of the house for over fifty years and that in 1990 he applied for and was granted a Kano Municipal Council Customary Right of Occupancy over the said property in his popular name, Mallam Dan’Azumi. It was his case that neither the plaintiff nor their mother ever

stayed in the said house with him except for sometime in 1996 when he granted the plaintiff a temporary permission to stay in the house, and that in processing the Customary Right of Occupancy from the Kano Municipality Council, he obtained a letter confirming his ownership of the property from the District Head of Birni addressed to the Chairman of the Council after liasing with the Unguwan Tudun Wuzirchi, Guda Dogari, Daiyalo and Umar Dogari.

The matter proceeded to trial and in the course of which the plaintiff testified and called one Guda Dogari, a palace guard, as a witness in proof of his case while the defendant called one Mohammed Hafizu and Ibrahim Shittu, a staff of the Land Registry of the Kano Municipal Local Council as witnesses in proof of his defence. The records of appeal show that, in the course of the trial, when the defendant sought to tender the letter of confirmation of ownership said to have been written by the District of Birni in evidence through the staff of the Kano Municipality Local Council, it was objected to by the plaintiff on the ground that the witness was not the maker and that no proper foundation was laid and the lower Court

rejected the document and marked it as such. The defendant died after the close of trial but before the making of final submissions by Counsel and he was substituted with the Estate of Alasan Mohammed Tudun Wuzirchi. The lower Court, after the final addresses of Counsel, entered judgment in favour of the plaintiff and granted his claims.

The defendant described as the Estate of Alasan Mohammed Tudun Wuzirchi was dissatisfied with the judgment and it caused its Counsel to appeal against it and the Counsel filed a notice of appeal dated the 24th of April, 2003 and it contained three grounds of appeal. In prosecuting the appeal, Counsel to the Estate of Alasan Mohammed Tudun Wuzirchi, as appellant, filed a brief of arguments dated the 6th of June, 2005 on the 14th of July, 2005 and in response to which Counsel to Yusuf Mohammed Tudun Wuzirchi, as the respondent, filed a brief of arguments dated the 6th of July, 2006 on the 7th of July, 2006 and the brief of arguments was deemed properly filed by this Court on the 27th of September, 2006. Subsequently, and following the death of the Yusuf Mohammed Tudun Wuzirchi, the names of the parties were, with the leave

of Court, amended to read the present Appellant and Respondent and the Counsel to the parties were directed to amend their briefs of arguments to reflect the substitution.

Counsel to the Appellant duly substituted his brief of arguments with another one dated and filed on the 3rd day of January, 2014. Counsel to the Respondent did not amend or substitute his brief of arguments in line with the directive of the Court. On the 27th of January, 2015, this Court made an order directing that the appeal be heard on the brief of arguments of the Appellant alone. At the hearing of the appeal, Counsel to the Appellant relied on and adopted the arguments in his brief of arguments as his oral submissions in the appeal. The Respondent was absent and was unrepresented by Counsel despite the service of hearing notice.

It must be stated from the onset that the failure of the Respondent to file a brief of arguments in this appeal does not automatically mean that judgment must be entered for the Appellant. The Appellant still has the duty of convincing this Court that he is entitled to judgment. This Court is not bound to accept the arguments of the Counsel to the

Appellant as gospel truth – Stabilini Visioni (Nig.) Ltd v. Sanderton Ventures Ltd (2011) 8 NWLR (Pt. 1249) 258. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Oruboko v. Oruene (1996) 7 NWLR (Pt. 462) 555, Eya v. Olopade (2011) 11 NWLR (Pt. 1259) 505 and Independent National Electoral Commission v. Nyako (2011) 12 NWLR (Pt. 1262) 439. In Edonkumoh v. Mutu (1999) 9 NWLR (Pt. 620) 633, Ibiyeye, JCA stated at 652 E-F thus:

“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”

Counsel to the Appellant distilled three issues for determination in this appeal and these were:

i. Whether the learned trial Judge properly considered and evaluated the evidence of

DW2.

ii. Whether the lower Court was right in rejecting a letter from the District Head of the Kano Municipal Council confirming the ownership of House No. 26, Tudun Wuzirchi (subject matter of the suit) in favour of the Appellant.

iii. Whether the Respondent discharged his burden of proving the case of joint ownership of House No. 26, Tudun Wuzirchi Quarters, Kano.

In arguing the first issue for determination, Counsel referred to the testimony of the second defence witness, Ibrahim Shittu, the staff of the Land Registry of Kano Municipal Council and stated that the witness was not cross-examined and that this left his testimony unshaken and unchallenged and that the lower Court was thus bound to accept the testimony and rely on it and he referred to the case of American Cynamid Co. v. Vitality Pharmaceutical Ltd (1991) 25 SCNJ 42. Counsel stated that the lower Court failed to accept and to properly evaluate, assess and consider the evidence of the witness and that this has caused a miscarriage of justice and is fatal to the judgment of the lower Court and it is sufficient ground for this Court to set aside the judgment and he referred to the

cases of Adeyeye v. Adesanya (2001) 5 NSCQR 524 and Asafa v. Alraine (Nig.) Ltd (2002) 10 MJSC 165.

On the second issue for determination, Counsel reproduced the contents of the letter which he said was written by the District Head of Kano to the Chairman, Kano Municipal Council confirming the ownership of the property in dispute by Alasan Mohammed Tudun Wuzirchi and stated that the cardinal principle of admissibility of any document is whether it is relevant to the issue at stake and he referred to the provisions of Section 6 and 91 of the Evidence Act. Counsel stated that from its contents, the document in issue was patently relevant to the determination of the question of the ownership of the property in dispute and would have assisted in resolving the dispute and that the reason given by the lower Court for rejecting the document, that no proper foundation was laid for its admissibility, was not well founded and he referred to the case of Abdullahi v. Katsina State Housing Authority (2000) FWLR (Pt. 15) 214. Counsel stated that though an appellate Court would ordinarily not interfere with findings of fact of a trial Court, but where, as in the instant

case, a trial Court fails to properly consider and evaluate pieces of evidence adduced in a matter and which fact is evidently clear on the records, this Court has the power to interfere with the findings of fact.

On the third issue for determination, Counsel stated that it was elementary that he who asserts must prove his assertion through cogent and reliable evidence which on the balance of probabilities can be accepted and acted upon, but that the Respondent failed woefully to establish that the property in dispute was jointly owned by the two brothers. Counsel stated that the evidence of gift did not state how the gift was made and the Respondent led no evidence as to how their mother transferred the property to the two brothers and that the entire evidence was merely speculative and cannot constitute credible evidence. Counsel stated that the Respondent failed to discharge the onus of proof on him and that as such his claim ought to have failed.

Counsel concluded his arguments by urging this Court to allow the appeal and to set aside the judgment of the lower Court.

Reading through the records of appeal, judgment of the lower Court and the

arguments of Counsel to the Appellant, it is safe to say that there are two issues for determination in this appeal. These are:

i. Whether the lower Court was correct when it rejected in evidence, in the course of trial, the letter addressed by the District Head of Kano to the Chairman, Kano Municipal Council confirming the ownership of the property in dispute by the Appellant when it was sought to be tendered through the second defence witness.

ii. Whether on the state of the pleadings and of the evidence led by the parties, the lower Court was correct to have found in favour of the case of Respondent and to have entered judgment accordingly.

This appeal will be resolved on these two issues for determination and the issues will be considered seriatim.

On the first issue for determination, the records of appeal show that the Ruling of the lower Court rejecting the document in question in evidence was delivered in the course of trial on the 17th of July, 2002. The records of appeal show that the Appellant did not appeal against the Ruling and that at no time thereafter did the Appellant seek for the leave of either the lower Court or of this

Court to appeal against the Ruling. The lower Court delivered the final judgment in this matter on the 17th of April, 2003 and the notice of appeal that ignited this appeal was dated the 24th of April, 2003 and it was stated in the opening paragraph of the notice of appeal that it was against the decision of the High Court of Kano State delivered on the 17th of April, 2003; nothing was said about the Ruling delivered on the 17th of July, 2002.

Now, it is settled law that the only known and legitimate way or method of laying a complaint before a higher Court or Tribunal, to show grievances of an aggrieved party against a decision taken by an inferior Court or Tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421, Dingyadi v. Independent

National Electoral Commission (No. 1) (2010) 18 NWLR (Pt. 1224) 1. The notice of appeal of the Appellant dated the 24th of April, 2003 is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike v. Attorney General Federation (2007) 8 NWLR (Pt. 1035) 1, Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1 and First Bank of Nigeria Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria v. Greenstone Ltd (2009) 10 NWLR (Pt. 1150) 624.

It is elementary that an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba v. Egberongbe (1999) 8 NWLR (Pt. 685) 485, Nigerian Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56, Ombugadu v. Congress for Progressive Change (2013) 3 NWLR (Pt. 1340) 31. Thus, the brief of this Court in this appeal is to find out whether on proper consideration of the facts placed before it, and the applicable law, the

lower Court arrived at a correct decision in its judgment of the 17th of April, 2003, the subject matter of the appeal. It is not within the brief of this Court in this appeal to review any other ruling or judgment of the lower Court outside the judgment delivered on the 17th of April, 2003, and this Court possesses no power or jurisdiction to set aside or nullify any other such ruling or judgment. This is because a Court of Appeal cannot set aside a judgment or ruling of a lower Court against which there is no notice and grounds of appeal legally filed before it – Anah v. Anah (2008) 9 NWLR (Pt. 1091) 75. In the absence of an appeal against a judgment or ruling, it remains inviolate for all time – Olawepo v. Security and Exchange Commission (2011) 16 NWLR (Pt. 1272) 122, Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55, Duru v. Federal Republic of Nigeria (2013) 6 NWLR (Pt. 1351) 441.

The Appellant neither appealed against the Ruling of the lower Court rejecting the letter in evidence delivered on the 17th of July, 2002 nor did he seek the leave of Court to include the appeal against the Ruling as part of the appeal against the final the judgment and he

did not make the Ruling part of the subject matter of the notice appeal dated the 24th of April, 2003, and which ignited this appeal. The Ruling of the lower Court on the admissibility of the document remains inviolate and cannot be considered in this appeal. Thus, this issue for determination, as formulated by the Appellant and all the arguments of the Counsel to the Appellant thereon are thus liable to be struck out.

Going further and assuming that the issue could be properly raised in this appeal, the document was sought to be tendered through the second defence witness in the course of trial on the 17th of July, 2002. The relevant portion of the proceedings for that day went thus:

“I am the Land Registrar of Kano Municipal Local Government. I am attached to the District Head’s Office. I register all issues of registration of properties in Kano City even where sale or gift is concerned. I know the house No. 25 T/Wuzirchi in our register. I have records pertaining to the said house. As per the record in our possession, the bonafide owner of the house is Dan’Azumi (the Defendant) as he is the one on the Register. The procedure for registration with

us; we receive copies of allocation from authorities and we register but the current record have been with us since 1954. At present it is a copy of the official action allotting a plot that forms the basis of plot granted. The document shown to me is not a letter of allocation but of confirmation.

Mr. Ahmed: I seek to tender the confirmation.

Mr. Alimi: I object to the admission of the document in evidence as no foundation had been laid about the where about of the … and the fact that it had not been made by the maker.

Court: Application to tender the land document is hereby rejected for lack of proper foundation …”

In his pleadings, the Appellant stated that the letter sought to be tendered was issued by the District Head of Birni and was addressed to the Chairman of the Kano

Municipal Council after liasing with the Unguwan Tudun Wuzirchi, Guda Dogari, Daiyalo and Umar Dogari. The second defence witness through whom the document was sought to be tendered was not the maker of the document and neither was he one of those the maker was said to have liased with before writing the letter. Admissibility of documentary evidence under

the erstwhile Evidence Act, the applicable law at the material times of this matter was governed by the provision of Section 91 of the Act. The section stipulated that in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on the production of the original document be admissible as evidence of that fact on some conditions and one of which is that the maker of the document is called as a witness. It continued that the condition that the maker of the statement shall be called a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance or if all reasonable efforts to find him have been made without success.

These provisions were interpreted by the Courts to mean that the person best positioned to tendered a document in proof of the truth of its contents is the maker of the document and that where the person seeking to tender the document is not the maker, he must give foundational evidence

stating the where about of the maker and the reasons why the maker cannot attend Court and he must state his connection to the document or to the circumstances of the making of the document that puts him in the position to tender same. Where the witness is not the maker of the document and he fails to lead such foundational evidence, the document is not admissible and where it has been admitted, must not be accorded any probative value – Bello v. Ringim (1991) 7 NWLR (Pt. 206) 668, Obembe v. Ekele (2001) 10 NWLR (Pt. 722) 677, Omega Bank Nigeria Ltd v. OBC Ltd (2005) 8 NWLR (Pt. 928) 547, Okoye v. Obiaso (2010) 8 NWLR (Pt. 1195) 145, Ekiti State Government v. Abe (2016) LPELR-CA/EK/43/2014. In the instant case, the witness was not the maker of the document and he led no foundational evidence as to the where about of the maker and of his connection with the document. The lower Court was right to reject the tendering of the document in evidence, in the circumstances. The first issue for determination is thus resolved against the Appellant.

On the second for determination, it is clear from the pleadings of the parties that there were two claims of ownership

of the property in dispute before the lower Court; the Respondent’s claim for joint ownership with the Appellant and the Appellant’s claim for sole ownership. The task before the lower Court in this matter was to determine who between the Respondent and the Appellant led better evidence in support of his case on the ownership of the land in dispute – Arase v. Arase (1981) 5 SC 33 at 35 and Davies v. Ajibona (1994) 5 NWLR (Pt. 343) 234 at 258F, Nteogwuija v. Ikuru (1998) 10 NWLR (Pt. 569) 267. Where there are two claimants to a parcel of land, declaration of ownership is made in favour of the party that proves better title – Adole v. Gwar (2008) 11 NWLR (Pt. 1099) 562. In carrying out this task, the lower Court stated in the judgment thus:

“… In the end, it is clear that the evidence of PW2, Guda Dogari, a Palace Guard, clearly supports the evidence of PW1, the Plaintiff, as well as the entire case in the he vividly gave the root of tite to the house tracing it to the mother of the parties and then to the donor, the mother of the late Emir of Kano. On the other hand, the Defendant’s old witness Mohammed Hafizu is deficient in that he stated that he did

not know how the Defendant acquired the disputed house. The evidence of DW2, Ibrahim Shittu is witness (sic) as he alleged written reference of ownership was rejected.

In the end, I find for the Plaintiff and declared that the house at No. 26, T/Wuzirchi is the joint property of the Plaintiff and Estate of the Defendant…”

It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Lawal v. Akande (2009) 2 NWLR (Pt. 1126) 425, Chukwu v. Amadi (2009) 3 NWLR (Pt. 1127) 56, Usung v. Nyong (2010) 2 NWLR (Pt. 1177) 83, Ogunjemila v. Ajibade (2010) 11, NWLR (Pt. 1206) 559. The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities – Kaiyaoja v. Egunla (1974) 12 SC 55, Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134, Akintola v. Solano (1986) 2 NWLR (Pt. 24) 298, Eyo v. Onuoha

(2011) 11 NWLR (Pt. 1257) 1, Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217.

To succeed in a case for declaration of title, a party must establish the method by which he acquired the said title; ownership of land cannot be claimed without first establishing that ownership – Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, Nwofor v. Nwosu (1992) 9 NWLR (Pt. 264) 229, Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Emegwara v. Nwaimo (1953) 14 WACA 347, Atuanya v. Onyejekwe (1975) 5 ESCLR 359, Obawole v. Coker (1994) 5 NWLR (Pt. 345) 416, Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370 at 382, Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) 25, Obineche v. Akinsobi (2010) 12 NWLR (Pt. 1208) 383.

The Respondent relied on inheritance of the property in dispute from their mother as the basis of his claim. It is

trite law that where a party bases his claim for declaration of title to land on inheritance, it is not enough for him to testify that he inherited the land in dispute from his father; he must also adduce evidence of how the father acquired the land – Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, Daniel-Kalio v. Daniel-Kalio (2005) 4 NWLR (Pt. 915) 305, Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) 194, Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587. It was the case of the Respondent on the pleading and in his evidence as the first plaintiff witness that he and the Appellant inherited the property in dispute from their mother who was the Jakadiya to the mother of the late Emir of Kano, Alhaji Mohammed Sunusi and that their mother was gifted the house by the mother of the late Emir of Kano. The Respondent testified on the process by which the gift was made and that their mother and the two of them resided in the property until the death of their mother and whereupon the property devolved on them as joint owners. The testimony of the Respondent was corroborated in material particulars by the evidence of the second plaintiff witness, a Palace Guard, Guda Dogari

who stated that he was present when the gift of the house was made to the mother of the Respondent and Appellant and he gave vivid evidence of the process by which the gift was made and to the fact that the original Respondent was present when the gift was made. The testimony of the two witnesses were not shaken or discredited under cross examination.

On his part, the Appellant only stated in his pleading that he owned the house in dispute and that he had obtained a Kano Municipal Council Customary Right of Occupancy over the property. He did not plead the manner by which he came to own the house; was it by purchase, gift, grant, conquest or what? The first defence witness stated that the Appellant was the owner of the house but that he did not know how the Appellant came to own the house and that he just saw the Appellant in the house. The second defence witness testified that the Appellant was the owner of the house according the record in their register, but he too did not give any evidence as to how the Appellant came to own the house before his ownership was recorded in the register. Counsel to the Appellant berated the lower Court for not evaluating

and according probative value to the testimony of the second defence witness. Counsel obviously overlooked the fact that the entire evidence of the second defence witness was on what was contained in a register and that he did not tender the register or explain the where about of the register.

It is elementary that where the issue of ownership of a property has been reduced into some form of record or register, no evidence may be given of such written record or register of ownership of the property, except the record or register itself. This was the essence of Section 132 (1) of the erstwhile Evidence Act. The testimony of the witness was thus of no probative value without the tendering of the register he referred to. Further, the Appellant did not tender the Kano Municipal Council Customary Right of Occupancy. Although, without stating the source of his ownership of the property, the tendering of the Customary Right of Occupancy will have been baseless and will not have assisted his case one jot. It is trite that where a party fails to prove the base upon which he founded his title, the claim must fail – Odofin v. Ayoola (1984) 11 SC 72, Mogaji

v. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt. 7) 393 at 395, Eronimi v. Iheuko (1989) 2 NWLR (Pt. 101) 46, Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22.

It is evident from the records of appeal that the Respondent made out a better case that the Appellant on the ownership of the property in dispute. The decision of the lower Court which found in favour of the Respondent was on firm ground. The second issue for determination is also thus resolved in favour of the Respondent.

In conclusion, this Court finds no merit in this appeal and it is hereby dismissed. The judgment of the High Court of Kano State in Suit No. K/304/2001 delivered by Honorable Justice M. H. Abdullahi on the 17th of April, 2003 and the orders made therein are hereby affirmed. There shall be no order as to cost. These shall be the orders of this Court.

UWANI MUSA ABBA AJI, J.C.A.: I read in draft the lead judgment of my learned brother, Habeeb A. O. Abiru, JCA just delivered.

My learned brother exhaustively considered the issues presented to us for determination and I completely agree with the reasoning and conclusions that the appeal is devoid of any merit. It is for

the same reasons therein contained which I adopt as mine that I too dismiss this appeal as lacking in merit. I too affirm the judgment of the lower Court in suit No. K/304/2001 delivered by Hon. Justice M. H. Abdullahi on the 17th April, 2003.

I abide by order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the judgment prepared and read by my learned brother, Habeeb Adewale O. Abiru, JCA. I am in total agreement with the reasoning and conclusion contained therein. My lord has dealt with all the issues calling for determination in the appeal. I accordingly adopt same as mine, and, I, too, hereby dismiss the appeal for being unmeritorious. The judgment of the learned Court delivered on the 17th of April, 2003 in suit No. K/304/2001 by Abdullahi J., is hereby affirmed. I abide by the order made as to costs.

Appearances

Suleiman Ishaq SuleimanFor Appellant

AND

For Respondent