ABDULLAHI MUHAMMAD & ORS v. AHMADU MAMUDA GANI
(2019)LCN/13031(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of April, 2019
CA/J/390/2018
RATIO
SIGNATURES SIGNED OUTSIDE THE PRESENCE OF COMMISSIONER FOR OATHS
Signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before the Commissioner for Oaths is not legally acceptable in Court.”
See also Onyechi Erokwu Vs Jackson N. Erokwu (2016) LPELR 41515 and Chidubem Vs Ekenna (2009) ALL FWLR (Pt. 455) 1692. The 1st Appellant testified as DWI. He testified under cross-examination at page 128 of the record thus:
My lawyer read the statement to me in his office and I signed.
This offends the requirement of the law as it was not sworn before the authorized person. In line with the above authorities, the trial Court was right in its finding. Issues one and two are resolved in favour of the Respondent and against the Appellant.PER TANI YUSUF HASSAN, J.C.A
LIMITATION LAW: WHEN IT STARTS TO RUN
Time begins to run for the purposes of limitation law from the date the cause of action accrues.
SeeAjayi Vs Adebiyi (2012) 11 NWLR (Pt. 1310) 137 at 169 paras B-E and INEC Vs Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167 at 174.PER TANI YUSUF HASSAN, J.C.A
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. ABDULLAHI MUHAMMAD
(Alias Dan Bauchi)
2. GARBA SULE
(Darman Gar)
3. ALHAJI YUSUF GAR
(Village Head of Gar) Appellant(s)
AND
AHMADU MAMUDA GANI Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of Bauchi State High Court, delivered on the 14th day of August, 2018 in Suit No. BA/168/2016 by Honourable Justice Kunaza N. Hamidu, wherein the said Court entered judgment in favour of the Respondent who was the Plaintiff.
The suit was instituted by the Respondent against the Appellants as Defendants by the way of Writ of Summons and Statement of Claim dated the 6th day of October, 2016.
The claims of the Respondent as Plaintiff against the Appellants as Defendants are:
1. An Order of Declaration that the 2nd and 3rd Defendants do not have any title to the disputed farmland and therefore have no title to confer on the 1st Defendant on the grounds of the maxim ?Nemo dat quod non habet?.
2. An Order of Declaration that the Plaintiff and his entire family are the heirs and owners of the farmland situate and called SA’AL in Kyangani.
3. An Order of perpetual injunction restraining all the Defendants, their agents, servants, cohorts, privies or any other person deriving any title or authority from them from entering
1
or trespassing into the land.
4. An Award of damages for the sum of N1 Million naira against the Defendants.
5. Cost of action.
The case of the Plaintiff now Respondent, is that his grandfather late Gani and his family member first settled and cleared the land at Kyangani and its environs including the land in dispute at a place now called SA?AL. That his grandfather was the first Hamlet Head and the traditional leader with title to the land over hundred of years ago. The Respondent said his grandfather Gani and his family members being the original settlers farmed at various locations in Kyangani Hamlet including Yala, Kutayi, Takmong, Sabon Gida, Unguwan Gasali, Kinding, SA?AL and Badaromo, and since then, the Respondent?s family being in possession of the disputed land continued to farm therein.
?
That in June, 2016, the 1st Appellant came and drove the Respondent?s workers from the disputed land. The Respondent sent back his workers to the land to continue with the cultivation when the 2nd Appellant also went to the land to send away the Respondent?s workers from cultivating on the land. The Respondent then
2
went to the land himself and after a heated argument over the land with the 2nd Appellant, the 2nd Appellant left the land. That it was the 3rd Appellant that was instigating the 1st and 2nd Appellants to encroach on the disputed land. Hence the institution of the action at the lower Court, which gave rise to this appeal. The notice of Appeal dated 10th September, 2018 and filed on 11th September, 2018 has three grounds of appeal from which three issues were distilled for determination.
In the Appellants brief, settled by S.M. Bakaro Esq., three issues were identified thus:
i. Whether the learned trial judge was not in error when he shifted the burden of proof on Appellants who were Defendants at the lower Court and also based his judgment on the alleged weakness of the evidence of defence.? (Ground 1)
ii. “Whether the learned trial judge was not in error when he expunged the evidence of the 1st Appellant (PWI) on basis that his sworn statement was signed at the law office of the Appellants Counsel. (Ground 2)
iii. ?Whether the suit of the Respondent was not caught up by statute of limitation, robbing
3
the Honourable trial Court of jurisdiction to hear and determine same.? (Ground 3)
Learned Counsel for the Appellants adopted the brief and urged us to allow the appeal.
The Respondent?s brief settled by O. J. Bichi Esq. distilled a sole issue, thus:
1. ?Whether the Respondent proved his case on the balance of probability to entitle him to judgment considering the pleadings and evidence of the parties before the Court (Grounds 1, 2 and 3).”
He adopted the brief and urged us to dismiss the appeal.
I adopt the issues raised by the Appellants and I shall utilize them in resolving this appeal by taking issues one and two together.
ISSUE ONE
Whether the learned trial judge was not in error when he shifted the burden of proof on Appellants who were Defendants at the lower Court and also based his judgment on the alleged weakness of the evidence of defence.?
ISSUE TWO
Whether the learned trial judge was not in error when he expunged the evidence of the 1st Appellant (PWI) on basis that his sworn statement was signed at the law office of the Appellants? Counsel.?
4
In arguing issue one, learned Counsel for the Appellants submitted that the learned trial judge based his judgment by analyzing the evidence of DW2, to bring out the contradiction or purported weakness in the evidence of the defence. That the learned trial judge was wrong to have used the purported weakness of the defence witness to enter judgment for the plaintiff. Relying on the cases of Ajibulu Vs Ajayi (2014) 2 NWLR (Pt. 1392) 483 at 487 ratio 2; Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt. 1153) 587 at 590 ratio 2 and Ewo Vs Ani (2004) 3 NWLR (Pt. 861) 611 at 618 ratio 4, it is submitted that the Respondent has not proved his case on the balance probability considering the contradiction in the evidence of PW2 and PW3. That placing of proof on the Appellants by the learned trial judge has caused a miscarriage of justice and entitled the judgment to be set aside.
Learned Counsel for the Appellants argued that proof of title to land and for injunction are won on the strength of the evidence of Plaintiff and can only rely on the evidence of the defence to succeed when the defence supported the Plaintiff?s claim. He relied on Atanda Vs Iliasu (2013) 6
5
NWLR (Pt. 1351) 529 at 536 ratio 10 and Aiyeola Vs Pedro (2014) 13 NWLR (Pt. 14240 409 at 417 ratio 8.
Referring to the evidence PW2 while identifying the land in dispute, he said the size of the land is about one hectre and under cross examination he said they are claiming the whole of SA?AL. PW 3 said the land is wide, covering about one hectre but under cross examination he said the land is about 2-3 football fields (meaning 2-3 hectre). That he cannot be said to have knowledge of the land. It is submitted that the contradiction in the evidence of PW2 and PW3 is material as it touches on the identity of the land.
It is also argued on behalf of the Appellants that the Appellants neither admitted or acknowledged the existence of the purported land referred to by the Respondent, as the Appellants only know SA?AL as a Hamlet and not a piece of land alleged by the Respondent. The Court was referred to paragraph 14 of statament on oath of PW2 and paragraph 21 of PW3, that the two statements have failed to describe the land in dispute with precision and certainty. The case of Aiyeola Vs Pedro (supra) was referred to.
6
Learned Counsel referred to the joint statement of defence of the Appellants where the Appellants averred that it was one Zulunda that first cleared SA?AL when it was a forest. That being the original founder of the land who cleared the forest and turned it into a farm or settlement shall be the person with better tittle against other claimants. It is contended that the 1st Appellant has established his relationship with Zulunda, founder of the land in dispute, which was the basis that the land was originally founded by his ancestors. That the Respondent admitted the status of Zulunda as the founder of the land when it was a forest.
It is finally submitted on the issue that the evidence of PW2 and PW3 in proof of claim to the title was shrouded on hearsay and relying on the case ofBuhari Vs Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 309, the Court cannot take a decision on hearsay evidence. The Court was referred to Section 37 of the Evidence Act, 2011 and paragraphs 23-27 of the defence disputing the claim of the Respondent built on shaky and hearsay statement. That the trial Court was wrong to have conferred title of the land on the Respondent. Also referred are paragraphs
7
4(iii), (iv) and (v) of the statement of defence of the Appellants at pp. 32-33 of the record.
On issue two, the submission of the Appellants? Counsel is that the learned trial judge was in great error when he discountenanced the evidence of the 1st Appellant who testified as DWI on the basis that his statement on oath was signed at his Counsel?s office and not before the Commissioner for Oaths without supporting his position with any authority or logical reasoning. That the statement of the 1st Appellant i.e. DWI which was signed and stamped has the signature of the Commissioner of Oath affixed and therefore his evidence was properly before the Court. It is contended that there is no law or rule of Court which makes it mandatory on deponents to sign or take the deposition personally before the Commissioner for Oath. The Court was referred to Order 39 Rule 2(1) and (2) of the Bauchi State Civil Procedure Rules 1897 and Order 1 Rule 2 of the Practice Direction of the Bauchi State High Court and submitted that the combined provision of the Rules of Court and Practice Direction what is required of a witness who filed a statement on oath is simply
8
to sign the statement and identify it as his own. That no law or requirement of the Bauchi State High Court compelling the witness to sign his statement before the Commissioner for Oath or take it personally to the Commissioner for Oath.
Learned Counsel for the Appellants contended that, the refusal of the trial Court to admit the evidence of the 1st Appellant (DWI) has occasioned a miscarriage of justice as the evidence clearly established the root of title of the 1st Appellant over the land in dispute. The Court was referred to paragraph 10 of the statement on Oath of the 1st Appellant, paragraph 6 of the statement on Oath of the Respondent, evidence of PW2 under cross-examination at page 81 of the record and paragraph 31 of the statement on Oath of PW3, and submitted that the admission of the Respondent, PW2 and PW3 goes to show that indeed the land in dispute devolved from Zulunda down to the 1st Appellant who was Zulunda?s great grandchild.
The Court is urged to resolve the issues in favour of the Appellants.
For his part, learned Counsel for the Respondent conceded that in an action for declaration of title to land, a party claiming
9
title to land must succeed on the strength of his case and not on the weakness of the defence. The Court was referred to Dim Vs Enemuo (2009) 10 NWLR (Pt. 1149) 353 at 377; Osu vs Nwadialo (2009) 12 NWLR (Pt. 1155) 286 at 303-304 and Elegushi Vs Oseni (2005) 14 NWLR (Pt. 945) 348. Also referred is the five ways of proving ownership of land. Relying on the case of Odunukwe Vs Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 411; Aiyeola Vs Pedro (supra) and Eze Vs Atasie (2000) 10 NWLR (Pt. 676) 470, it is contended that the Respondent, relied on traditional evidence as his root to title to the land in dispute. That the law is settled, where a person relies on traditional evidence as his root of title, the onus is on him to plead his root of title, names of his ancestors who exercised acts of ownership on the land before it devolved to him. ? Addah Vs Ubandawaki (2015) 7 NWLR (Pt. 1458) 325 and Dantata Vs Mohammed (2000) 7 NWLR (Pt. 667) 176 among others. It is also submitted that the Respondent in his evidence traced his root of the title to the land in dispute through his grandfather late Gani and his brothers Muhammadu, Magajin Gari, Galadima Buba, Sambo,
10
Bakon Kasa, Chiroma Waje and Ajiya who were the first settlers in Kyangani and first
