ALHAJI UMARU AMBURSA v. ABDULKADIR JELANI AHMED & ORS
(2018)LCN/12183(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/19/2018
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE
“The settled position of the law is that document speaks for itself and the contents of a document cannot be altered by oral evidence or allowed to be discredited or contradicted by oral evidence. See EGHAREVBA vs. OSAGIE (2009) LPELR-1044 SC where the apex Court per OGBUAGU, JSC had this to say on the subject; ‘It is now firmly settled that documentary evidence is the best evidence. It is best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except where fraud is pleaded’. See also IGBEKE vs. EMORDI (Supra); FCDA vs. KUDA ENGR. AND CONSTR. CO. LTD. (Supra); IGNATIUS ANYANWU &Â ORS vs. ALOYSU UZOWUAKA & ORS (Supra) cited by learned Appellant’s Counsel.” PER FREDERICK OZIAKPONO OHO, J.C.A.
EVIDENCE: WHERE EVIDENCE IS UNCHALLENGED OR UNCONTROVERTED
“…See also BABA vs. NCATC (1991) 5 NWLR (PT.192) 388 where the apex Court per NNAEMEKA-AGU, JSC had this to say on the subject: ‘When on an issue, evidence comes from one side and this is unchallenged and un-contradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance unless of course it is of such quality that no reasonable tribunal should have believed it so, when evidence goes one way, the onus of proof is discharged on a minimal of proof.'”PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ALHAJI UMARU AMBURSA Appellant(s)
AND
1. ABDULKADIR JELANI AHMED
2. ALH. ABDULLAHI UMAR
3. NASIR ABDULLAHI
4. AMINU HASSAN
5. ALHAJI SANI
6. BALA KANSILA
7. MALLAM HASSAN
8. ALHAJI SHEHU
9. MUHAMMADU FANA
(For themselves & on behalf of the Residents of behind old Motor Park, Birnin Kebbi). Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Judgment of the High Court of Kebbi State sitting at the Birnin Kebbi Judicial Division and delivered on the 26th day of October, 2017 Coram: ABBAS AHMAN, J in Appeal No.KB/HC/36/2016 wherein the Court delivered judgment in favour of the Respondents who were Defendants.
By a specially endorsed Writ, the Appellant herein (the Claimant before the trial Court) instituted an action against the Respondents (the Defendants), claiming the following reliefs: –
1. A DECLARATION that by virtue of the Statutory Right of Occupancy (Letter of Grant) No. BI/G/8966 dated the 20th September 1999, the Claimant is the rightful owner, to the exclusion of all other persons, of the land in dispute situate at behind Motor Park, Birnin Kebbi Local Government Area, Kebbi State.
2. A DECLARATION that by virtue of the Statutory Right of Occupancy (Letter of Grant) No. BI/G/8966 dated the 20th September 1999, the Claimant is entitled to a quiet, peaceful and exclusive ownership, possession and enjoyment of the land in dispute situate at behind Motor park, Birnin Kebbi Local Government Area, Kebbi State.
3. A DECLARATION that the entry upon the Claimant’s land by the Defendants and destruction caused to his wall fence amounts to trespass.
4. AN ORDER of this Honourable Court directing the Defendants to pay a total sum of One Hundred and Eighty-One Thousand, Nine Hundred and Nineteen Naira (?181,919.00) to the Claimant as special damages being the total value of the Claimant’s wall fence illegally destroyed by the Defendants.
5. AN ORDER of this Honourable Court directing the Defendants, jointly and severally, to pay the sum of One Million Naira (?1,000,000.00) to the Claimant as general and exemplary damages.
6. AN ORDER of perpetual injunction restraining the Defendants either by themselves, agents, proxies, servants or through any person or persons howsoever called from further entry/trespassing into the Claimant’s land.
7. ANY OTHER ORDER that this Court may deem fit to make in the circumstances of this case.”
After the closure of pleadings, the matter proceeded to trial. The Appellant called two (2) witnesses before the Trial Court and tendered some documents in support of his claims against the Respondents, whilst the Respondents in their defence called one (1) witness and tendered one document. Thereafter the Court in company of the parties their respective counsel, visited the land in dispute. The Trial Court delivered its judgment dismissing the suit of the Claimant.
Dissatisfied with the Judgment of the trial Court, the Appellant has appealed to this Court vide a Notice of Appeal filed on the 28-12-2017. There were three (3) grounds of Appeal filed.
ISSUES FOR DETERMINATION:
There are four (4) issues nominated for the determination of this Appeal by the Appellant thus;
1. Whether the Appellant adduced cogent evidence as to entitle him to both title and reliefs sought over the land in dispute against the Respondents. (Ground one)
2. Whether the provisions of Sections 21 and 22 of the Land Use Act, 1978 as amended was raised by the trial Judge suo motu and thus, ought to have given the Appellant the opportunity to address him. (Ground two).
3. Whether the documents tendered by the Appellant supported his case and the trial judge is duty bound to make pronouncement on every material issue placed before him. (Ground three).
4. Whether the trial judge properly evaluated the whole evidence adduced before him by both parties. (Ground four).
On the part of the Respondents, only an issue was nominated for the determination of this Appeal thus;
‘Whether the Appellant proof his case for a declaration of the rights claimed before the trial Judge (Grounds 1, 2, 3 and 4)
Although the four (4) issues raised for the determination of this Appeal by the Appellant are subsumed in the sole issue nominated by the Respondents, for the sake of comprehensiveness, this Appeal shall be determined based on the issues nominated by the Appellant. The Appellant’s undated Brief of argument, settled by AHMAD A. FINGILLA ESQ., was filed on the 23-3-2018 and deemed filed on the 22-5-2018, while the Respondent’s Brief dated 25-6-2018 was settled by HUSSAINI ZAKARIYAU ESQ., and filed on the 26-6-2018. At the hearing of this Appeal on the 22-10-2018 learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL:
APPELLANT;
ISSUE ONE:
Whether the Appellant adduced cogent evidence as to entitle him to both title and reliefs sought over the land in dispute against the Respondents?
The submission of learned Counsel under this issue is that the Appellant adduced credible and cogent evidence in support of his claims against the Respondents at the Court below in keeping with the dictates Section 133 (1) of the Evidence Act, 2011 as amended and he referred this Court to pages 13 to 27 of the records of appeal.
Counsel said that this being a case for declaration of title over a piece of land the Claimant must succeed on the strength of his own case and not to rely on the weakness of the defence save where the defence supports the Claimant’s case. Counsel further submitted that civil cases are decided on the balance of probability and preponderance of evidence and he cited the cases of OLLY vs. TUNJI (2013) 13 W.R.H. 24 @ 31- 32 and MATANMI vs. DADA (2013) 2 S.C.N.J. (PT. II) 616 @ 622 R.2 where the Supreme Court, per M. U. PETER-ODILI, JSC had this to say; ‘Plaintiffs’ action being one for declaration of title to land, the burden of proof which is on the preponderance of evidence lies squarely on the plaintiffs who must succeed on the strength of their own case and not anchored on the weakness of the defendants.
Learned Counsel also submitted that in an action for declaration of title to land, the Plaintiff must plead and lead evidence to prove the following: –
a. The identity and location of the land in dispute;
b. Neighbours to the land;
c. The extent and size of the land and/or the extent and size of an alleged encroachment if it is not the entire land that is being complained of; and
d. The root of title.
He cited the case of NWOGO vs. NJOKU (I990) 3 NWLR (PT. 140) 570 @ 586 in support of this proposition of the law and urged the Court to so hold. The contention of Counsel is that the Appellant as Claimant pleaded and led evidence before the Court as to the area in dispute with precision; that he equally pleaded and led cogent evidence as to the root of his title. See paragraphs 5, 6 and 7 of the Statement of Claim contained on page 6 of the records of appeal and paragraphs 4, 5 and 6 of the Witness Deposition on Oath of the Appellant contained on page 14 of the records of appeal. These pieces of evidence were never discredited by the Respondents during cross-examination as no question was asked to that effect. He urged this Court to so hold. See EYO vs. ONUOHA (2011) 45 NSCQR (PT. 1) 210 AT 214.
The argument of Counsel thereafter is that unchallenged and undiscredited evidence should be acted upon by the Court as cogent and credible and urged this Court to so hold, while utilizing the decision in AUGUSTINE OBINECHE & ORS vs. HUMPHREY AKUSOBI & ORS (2010) 38 WRN 177 AT 126 R II.
The further submission of Counsel is that, from the face of the documents tendered by the Appellant in proof of his title to the parcel of land in dispute, which were not objected to before they were admitted in evidence, only goes to show that the Appellant proved one of the ways of establishing title over the land in dispute. He said that the law is trite that document speaks for itself and the contents of a document cannot be altered by oral evidence. He further elaborated by saying that oral evidence will not be allowed to discredit or contradict the contents of a document. See IGBEKE vs. EMORDI (2010) 27 WRN 76 AT 84 R 7; FCDA vs. KUDA ENGR. AND CONSTR. CO. LTD. (2014) 34 PG. 72 @ 83 and IGNATIUS ANYANWU & ORS vs. ALOYSU UZOWUAKA & ORS (2009) 49 WRN 1.
Against the backdrop of the forgoing, Counsel submitted that the Appellant pleaded and led evidence (in paragraphs 8 and 9 of the Statement of Claim and paragraphs 6 and 7 of the Appellant’s deposition on oath) to, the effect that sometime in the year 2007 he applied to the Kebbi Urban Development Authority (KUDA) for Planning Permission to erect wall fence round the plot in dispute and same was approved pursuant to the Town Planning Law Cap 130; that he further averred and established that in 2015 he applied for another permission to construct shops on the plot and before the application was processed and eventually been granted, KUDA wrote to the Ministry of Lands, Housing and Urban Development, Birnin Kebbi seeking for more clarification/verification on the plot.
Furthermore, that on the 16th October 2015 the ministry put a reply to KUDA to the effect that it holds no objection for the grant of planning permission to the Appellant for commercial development. Counsel referred to pages 5 to 27 of the Records of Appeal.
On the nature of the response made by the Respondents as Defendants to the above in paragraph 12 of the Statement of Defence, where the Defendants averred thus:-
“The Defendants is not in position to deny paragraphs 8 and 9 as it is fact within the knowledge of the claimant.”
Learned Counsel reacted by submitting that in an averment that a party is not in a position to admit or deny is a bad pleading and amounts to an admission. See the case of OGUNOLA vs. EIYEKOJE (1990) 4 NWLR (PT. 146) 632 SC @ 646. It was also contended that the old law remains that facts admitted need no proof. See BIEZAN EXCLUSIVE GUEST HOUSE LTD vs. UNION HOMES SAVINGS & LOANS LTD. (2011) 7 NWLR (PT. 1246) 246 SC @ 285.
The argument further put up by Counsel is that the contents of the said paragraphs in the Statement of Claim are material allegations of fact which also forms part of the basis of this suit and that the law is trite that a denial of a material allegation of fact must not be general or evasive, but specific. This is because every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. See the case of OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT. 684) 298 @ 337. Counsel also cited the case of DANLADI vs. DANGIRI (2015) 4 WRN 1 @ PG. 7 the Apex Court held thus. –
“The law is that essential allegations in a pleadings or affidavit, which are not specifically traversed are deemed admitted by the adverse party. In the face of specific and detailed allegations of facts, a denial of those facts must also be specific.”
See also OKONKWO vs. CCB (NIG.) LTD (2003) 20 WRN 105. Counsel urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO:
Whether the provisions of Sections 21 and 22 of the Land Use Act, 1978 as amended was raised by the trial judge suo motu and thus, ought to have given the Appellant the opportunity to address him?
Learned Appellant?s Counsel contended that the trial judge introduced a new issue in his judgment which was one of the grounds upon which he dismissed the Appellant’s claims before him and which he ought to have given the parties, particularly the Appellant who is at the receiving end, the opportunity to address him on the issue raised.
He said that the learned trial judge in his judgment at page 137 of the records of appeal held:-
“Looking in whole the kind of transaction made between the Claimant i.e. the buyer and the seller over the disputed land, I do not want to enquire though the land in dispute is located within an urban area Birnin Kebbi in Birnin Kebbi Local Government area in the State Capital had satisfied the provision of Land Use Act, 1978 as amended Sections 21 and 22 as the consequences of such breach of Section 22 is revocation, see Savannah Bank of Nigeria Ltd. Vs. Ajilo (2001) FWLR (Pt. 75) 513.”
It was further contended that neither the Appellant nor the Respondents raised this issue before the Court below, rather the judge in his judgment brought up this issue and refused to accord parties the opportunity to address him on it which makes it a fundamental breach of the rights of fair hearing. He argued that the law is trite that the concept of fair hearing is founded upon the twin pillars of natural justice which are to hear the other party and not to be a judge in your own case. Counsel cited the case of EJIOFOR vs. MBANUGO (2013) 16 WRN Pg. 98 @ 101. See also OLATUNBOSUN vs. COUNCIL (1988) 6 SCNJ 38.
The submission of Counsel on the issue is that where a Court raises an issue suo motu, it must accord the parties an opportunity to address it on that point. See UMEOJI vs. AZODO (2012) 12 WRN Pg. 49 @ 56- 57; HABIB (NIG.) LTD vs. NASHTEX INTERNATIONAL (NIG.) LTD. (2006) ALL FWLR (PT.326) 311; OJO vs. VICTINO FIXED ODDS LTD. (2000) 9 NWLR (PT. 673) 649 @ 651 and NEPA vs. EZE (2001) 3 NWLR (PT. 701) 604 @ 908. It was further submitted that the remedy for a breach of right of fair hearing is that the whole decision and judgment is null and void and Counsel urged this Court to allow the Appeal and declare the judgment of the Court a nullity. See the case of OVUNWO vs. WOKO (2011) 46 SCQR PAGE 516.
ISSUE THREE:
Whether the documents tendered by the Appellant supported his case and the trial judge is duty bound to make pronouncement on every material issue placed before him?
The submission of Counsel is that it has been settled in a plethora of decided judicial authorities that there are five methods of proving title over a piece of land and that in the case of MATANMI vs. DADA (SUPRA) @ 622 R. 2, the Supreme Court enumerated the five ways (methods) of proving title to land, and the fact that a Claimant may rely on more than one mode of proving title; if he so desired. However, one mode of proving title will suffice, if it properly established to the satisfaction of the Court. See MATANMI vs. DADA (SUPRA). Against the backdrop of the foregoing, Counsel adopted his arguments canvassed in paragraphs 4.10 to 4.16 of this brief under Issue One in respect of the documents tendered by the Appellant before the Court below.
It was however, further submitted that the learned trial judge erred in law and thus caused a serious miscarriage of justice against the Appellant when he failed to make pronouncements on the legality or otherwise of the documents of title tendered before him by the Appellant. According to Counsel, the only area the trial judge concentrated on was that the Appellant pleaded some documents but did not tender same in evidence. Counsel referred Court to pages 136 to 137 of the Records of Appeal, and submitted that the Court below failed to consider and make pronouncements on Exhibits ‘A’, ‘A1’ and ‘B’.
The contention of Counsel is that it is a duty of the Court to address all the issues placed before it by the parties and resolve it one way or the other. He cited the case of OVUNWO vs. WOKO (SUPRA). He urged this Court to resolve this issue in favour of the Appellant and allow the Appeal.
ISSUE FOUR:
Whether the trial judge properly evaluated the whole evidence adduced before him by both parties?
The submission of Counsel here is that the learned trial judge failed in his duty to properly evaluate the evidence led by both parties before him and consequently arrived at a wrong conclusion. More particularly, Counsel said that when the Appellant has pleaded and led credible, cogent and un-discredited evidence as to the root of his title and also tendered documents in support thereof and there was no evidence adduced by the Respondents to prove that the Right of Occupancy granted by the Governor of Kebbi State was either revoked or not properly done.
The submission of Counsel is that the Court below did not consider all the issues placed before it by both parties and that the Court below failed to deal with the issue of admissibility or otherwise of Exhibits ‘A’ and ‘B’ tendered by the Appellants before the trial Court, which was the bedrock of the decision of the trial Court. Counsel argued that once the documents are found inadmissible, the whole proceedings and judgment of the trial Court will be completely flopped. He argued that there is no need for the lower Court to consider the issue raised by the Appellants’ Counsel, which had nothing to do with the ground(s) challenging the documents before the Court.
Learned Counsel also contended that the 1st Respondent in his evidence in chief as DW1 admitted the fact that the purported access road starts from Beacon No. 5869 to No. 5731. See page 117 of records of appeal. According to Counsel, the learned trial judge in his judgment failed to evaluate this piece of evidence and that what he did was only to reproduce it at page 133 of the record of appeal. Counsel further contended that a careful perusal of the contents of Exhibit ?D? on page 127 of the record will reveal that Beacon No. 5731 does not extend or go beyond the land in dispute. Counsel urged this Court to so hold.
RESPONDENT:
SOLE ISSUE:
Whether the Appellant proved his case for a declaration of the rights claimed before the trial Judge? (Grounds 1, 2, 3 and 4)
The contention of the learned Counsel here is that of note, the Respondents are not claiming any property belonging to the Appellant, rather that the Respondents mere posit that the piece of land where the Appellant wanted to build is an access road; hence they will not allow him to build on same. (See paragraph 2 of the Statement of defence on page 37 of the record of appeal).
It was further contended that in proof of the various claims for declaration of right of title to land, the Claimant, now Appellant called in the evidence of PW1 and PW2 and tendered EXHIBITS A-A1 and EXHIBIT B. According to Counsel, the evidence of the PW1 was to the effect that he was on the disputed land erecting building when the officers of the Nigeria Civil Defence Corp stopped him after a complaint from the Respondents. (See page 17- 19 of the record of proceedings).
In respect of the evidence of the PW2, Counsel argued that it is the same as that of the PW1 with an addition that he purchased the disputed property through EXHIBIT A-A1 and was given EXHIBIT B. (See page 13 – 16 of the record of proceedings).
The submission of Counsel thereafter is that the trial Court duly considered and evaluated the Appellant’s claim before it and came to an irresistible conclusion that the Appellant did not prove his case for the right to build on an access road before the trial Court.
According to learned Counsel, the oral evidence of the PW2 can only be assessed from the documentary evidence in EXHIBITS A-A1 and EXHIBIT B. He said that Exhibit A, which is the (Original Hausa Agreement) was a document which the trial Court could not accord any probative value or attach any weight to even though relevant, because digit ‘1’ was altered in the description of plot no. 221 LP 21. Again, Counsel said that the seller in EXHIBIT A-A1 is ‘Mallam Musa A. Ibrahim’ while on EXHIBIT B (Letter of grant) the name is ‘Alh. Musa Ibrahim’, which Counsel said are two distinct names admitted by the PW2 under cross examination. (See page 110 of the record of appeal)
The contention of Counsel is that after the close of the defence and due to the conflicting evidences presented by the party the trial Court went for a visit to the locus in quo, which visit revealed clearly that part of the disputed land which the Appellant is trying to build on was an access road. He said that the trial Court found thus: (See page 135 of the record of appeal)
“The Court in company of the parties and/or their Representatives and their Counsel visited the locus in quo confirming the disputed land; with access Road linking the western by-pass Road to Sani Abacha Road with newly constructed road leading to western gate of Birnin Kebbi main central market, in fact the Court confirmed beacons of some five courses of blocks part of which had been demolished”.
It was further contended by Counsel that the Appellant’s claim against the Defendant related to the extension of construction to a particular portion of the parcel of land in dispute and is contained in paragraph 13 of his statement of claim which reads thus:
“Copies of all the above-mentioned documents were given to the claimant and same were served on the defendants and relying on them, the claimant commenced construction works on the land in dispute, but to his greatest dismay some of the inhabitants of the area led by the defendants stormed and destroyed the developments he made of about five courses of blocks and that was the 3rd time the defendants destroyed the claimant wall fence”.
Counsel argued that throughout the trial, the Appellant did not tender before the Court any document given to him approving his construction on the access road and that the trial Court held that such document was not produced even when relevant and pleaded. (See page 136 of the record of appeal). It was further argued that paragraphs 8, 9 and 12 of the Appellant’s statement of claim represents the basis of the purported right of the Appellant to construct on the access road, and which the Appellant is trying to enforce. The contention of Counsel is that the Appellant abandoned these paragraphs when he refused to tender any document to proof same; hence the trial Court’s founding at page 136 that the documents were pleaded but not tendered.
The submission of Counsel is that the Appellant refused to produce or tender any of the purported approval for construction because if they were produced the presumption is that they may not be in support of his case. He said that the trial Court after looking at the evidence before the Court vis-a-vis the nature of claim and relief sought, which basically related to the right of construction on an access road and for which a permit was not produced by the Appellant, the Court rightly dismissed the Appellants claim when the Court held thus;
“The Claimant in this suit did not support his averment with cogent evidence as to entitle him to both title and reliefs sought over the land in dispute, it is trite that where a claimant does not proved his claim to the satisfaction of the Court, then the right order to make is dismissal of the claims. Consequently, upon my findings, the claims of the Claimant; Alh. Umaru Ambursa now before me, are hereby dismissed.”
On the issue of the Court below having raised an issue suo motu and how Appellant’s Counsel made a heavy weather of the issue, the submission of Counsel is that Appellant’s submission is wrong in law because there was nowhere the trial judge used the issue of Section 21 and 22 of the Land Use Act, 1978 in resolving the dispute between the parties. Counsel said that the trial Judge actually cautioned himself and know that he could not raise the issue and use it to resolve the dispute between the parties; hence his refusal to use the sections of the Land use Act to resolve the parties dispute when he said thus;
“I do not want to enquire, though the land in dispute is located within an urban area Birnin Kebbi in Birnin Kebbi local Government area in the State Capital had satisfied the provision of Land Use Act 1978 as amended Section 21 & 22 as the consequence of such breach of Section 22 is revocation”.
Arising from the foregoing, Counsel argued that this was not a pronouncement of the Court below, resolving any issue or even an issue at all between the parties hence, that the trial Court was on sure footing and did nothing wrong at all. In the instant case, Counsel further argued that although the trial Court raised the issue of the Land Use Act, suo motu but that the trial Court resolved nothing in the dispute between the parties from the clear language of the Court.
On the question of whether the Court below properly evaluated the Appellant’s case, Counsel submitted that the Court below properly evaluated the evidence adduced before Court as can be seen in pages 131, 132, 133, 134, 135, 136 and 137 of the judgment of the Court. He urged the Court to resolve this Appeal in favour of the Respondents and against the Appellant.
RESOLUTION OF APPEAL
The Appellant’s case before the trial Court was that sometimes in 1999 he purchased a piece of land situate in Birnin Kebbi, Kebbi State. The Appellant?s efforts to develop the piece of land was frustrated by the Respondents who prevented his construction claiming that part of the disputed parcel of land on which construction was about to be made is an access road. All efforts made to prevail on the Respondents to allow the Appellant continue with his construction on the parcel of land (purported access road) proved abortive hence, the Appellant’s decision to approach the Court below.
After hearing of the parties at a plenary had concluded, the learned trial judge visited the locus in quo and thereafter parties filed their written addresses, exchanged and adopted same. In the considered Judgment of the learned trial judge it dismissed the Appellant’s case for lack of evidence.
The proper way to perhaps, approach this Appeal is to strive to narrow down the issues of contention between the parties. A close look at the Respondent’s pleadings precisely paragraph 2 of the Statement of Defence shows that the grouse of the Respondents against the Appellant does not relate to any claims of ownership to any parcel of land as such but that the parcel of land where the Appellant is insisting on building upon is an access road and therefore will not allow him to build on same.
It would be recalled that in arguing this appeal, learned Appellant’s Counsel nominated four issues for the determination of the Court which included the question of whether the Appellant adduced sufficient cogent evidence to entitle him to his claims against the Respondents. There was also the issue of whether the Court below raised the issue of Sections 21 and 22 of the Land Use Act, 1978 suo motu and used same in resolving the matter before him without giving any opportunities to the parties to address the Court on same. Another of such issues raised bordered on the purported failure of the Court below to make pronouncements on every material issue placed before him and lastly, whether the trial judge properly evaluated the whole evidence adduced before him by both parties.
On the question of whether the Appellant adduced sufficient cogent evidence to entitle him to his claims against the Respondents, it is important to note that since the claims of the Appellant related to the question of ownership, it is clear that as Claimant he pleaded and led evidence before the Court as to the area in dispute with precision. It is also clear from the printed records that he equally pleaded and led cogent evidence as to the root of his title. See paragraphs 5, 6 and 7 of the Statement of Claim contained on page 6 of the records of appeal and paragraphs 4, 5 and 6 of the Witness Deposition on Oath of the Appellant contained on page 14 of the records of appeal. I am unable to see where in the depositions of the Respondents or during cross examination where the evidence of the Appellant as Claimant was discredited by the Respondents. See EYO vs. ONUOHA (2011) 45 NSCQR (PT. 1) 210 AT 214.
If the contention of the Respondents is simply that part of the Claimant’s land encroaches on an access road that does not in the estimation of this Court amount to a failure to establish his claims of ownership to the parcel of land. As far as this Court is concerned the evidence adduced by the Appellant as Claimant no doubt amounted to one which met no opposition at all and therefore remained unchallenged. As argued therefore by learned Appellant’s Counsel, I fail to see the rationale behind the Court’s refusal to make use of the unchallenged and undiscredited pieces of evidence adduced by the Claimant. See AUGUSTINE OBINECHE & ORS VS. HUMPHREY AKUSOBI & ORS (Supra) cited by learned Appellant’s Counsel. See also BABA vs. NCATC (1991) 5 NWLR (PT.192) 388 where the apex Court per NNAEMEKA-AGU, JSC had this to say on the subject:
“When on an issue, evidence comes from one side and this is unchallenged and un-contradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance unless of course it is of such quality that no reasonable tribunal should have believed it so, when evidence goes one way, the onus of proof is discharged on a minimal of proof”.
Here was also a situation in which the Appellant as Claimant tendered a number of documentary exhibits in proof of his claims against the Respondents. The settled position of the law is that document speaks for itself and the contents of a document cannot be altered by oral evidence or allowed to be discredited or contradicted by oral evidence. See EGHAREVBA vs. OSAGIE (2009) LPELR-1044 SC where the apex Court per OGBUAGU, JSC had this to say on the subject;
“It is now firmly settled that documentary evidence is the best evidence. It is best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except where fraud is pleaded”.
See also IGBEKE vs. EMORDI (Supra); FCDA vs. KUDA ENGR. AND CONSTR. CO. LTD. (Supra); IGNATIUS ANYANWU & ORS vs. ALOYSU UZOWUAKA & ORS (Supra) cited by learned Appellant’s Counsel.
Another fundamental flaw inherent in the judgment of the Court below is that Court failed to make any pronouncements on the legality or otherwise of the documents of title tendered before him by the Appellant.
In agreement with learned Appellant’s Counsel the Court at pages 136-137 of the Records of Appeal failed to consider and make pronouncements on Exhibits ‘A’, ‘A1’ and ‘B’. This of course could have resulted to un-told miscarriage of justice against the Appellant when he failed to make these pronouncements. See the case of OGED OVUNWO vs. IHEANYICHUKWU WOKO & ORS (2011) LPELR-2841 SC where the apex Court per CHUKWUMAH-ENEH, JSC had this to say on the subject;
“It is a Court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of the Appellants to fair hearing
On the question of the proper evaluation of the evidence of the parties adduced before the Court below, learned Appellant’s Counsel had contended that the Court below failed to properly evaluate the evidence of the parties and consequently arrived at a wrong conclusion. This is even more so when the Appellant pleaded and led credible, cogent and undiscredited evidence as to the root of his title and also tendered documents in support thereof and in the face of failure on the part of the Respondents who also failed to prove that the Right of Occupancy granted by the Governor of Kebbi State was either revoked or not properly done.
In addition, it is clear that the Court below failed to deal with the issue of admissibility or otherwise of Exhibits ‘A’ and ‘B’ tendered by the Appellants before the trial Court, and yet this was the fulcrum of the case established by the Appellant as Claimant at the Court below. Also of remarkable importance is the fact that the 1st Respondent in his evidence in chief as DW1 admitted the fact that the purported access road starts from Beacon No. 5869 to No. 5731, which does not extend to or go beyond that parcel of land in dispute. See Exhibit D on page 127 of the printed records. Perhaps, what seemed to have given the Court below away on the question of its failure to evaluate the evidence of parties is the Court’s observation at last paragraph of page 137 of the records where the Court said;
“The Claimant in this suit did not support his averment with cogent evidence as to entitle him to both title and reliefs sought over the land in dispute, it is trite that where a Claimant does not prove his claim to the satisfaction of the Court, then the right order to make is dismissal of the claims. Consequent upon my findings, the claims of the Claimant; Alh. Umaru Ambursa now before me are hereby dismissed.”
By critically examining the eleven page judgment of the Court below, against the drift of evidence adduced by the parties in the course of trial alongside their pleadings, written statement on oath and the front-loaded documents, vis–vis the observations of the learned trial judge in the last paragraph of the Court?s judgment, is all too glaring that the learned trial judge made no efforts whatsoever in evaluating the evidence adduced by the parties in this case, in agreement with the submissions of learned Appellant?s Counsel in view of the unchallenged testimonies of the PW1 and PW2 and the Exhibits A, A1 and B tendered by them to establish the claims to ownership of the Appellant as Claimant, I cannot help but be in complete disagreement with the learned trial judge when he said that the Claimant did not support his averments with cogent evidence to entitle him to the declaration of Court sought by him.
Even if the Respondents had found out that the parcel of land of the Appellant had encroached on an access road, it was clearly wrong of them to have taken it upon themselves to demolish the fence of the Appellant. What was expected of them was to have brought the matter to the attention of the Kebbi Urban Development Authority (KUDA) who granted the Appellant planning permission to erect a wall or fence around the plot in dispute and who also approved the said permit pursuant to the Town Planning Law Cap 130.
In the final analysis, this Appeal succeeds and it is accordingly allowed. Consequently, the judgment of the Kebbi State High Court of Justice, Birnin Kebbi in suit no: KB/HC/36/2016 delivered on the 26-10- 2017 is hereby set aside. In addition, an order of Court hereby made declaring that the Appellant established title to the parcel of land in dispute, thus entitling him to the reliefs sought against the Respondents at the Court below. There shall be cost of N100,000.00 against the Respondents.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the judgment just rendered by my learned brother Frederick O. Oho, JCA. I agree with the reasoning therein for the conclusion that the appeal has merit and succeeds perforce. It is accordingly allowed. I also subscribe the consequential orders made in the judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the draft of the Judgment just pronounced by my learned Brother Justice Frederick O. Oho J.C.A. I agree entirely with the reasoning and conclusion therein that this Appeal succeeds and is hereby allowed. Accordingly, the Judgment of Kebbi State High Court in Suit No: KB/HC/36/2016 delivered on 26/10/2017 is hereby set aside. I abide with all the consequential orders therein.
Appearances:
A. A. Fingilla, Esq. For Appellant(s)
Husseini Zakariyau Esq. For Respondent(s)
