ABUBAKAR v. DAHIRU (2020)

ABUBAKAR v. DAHIRU

(2020)LCN/14639(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, September 02, 2020

CA/YL/19/18

RATIO

EVIDENCE: CERTIFIED TRUE COPY OF PUBLIC DOCUMENTS

It is apt at this point to reproduce Section 104 of the Evidence Act, 2011 for ease of reference;
104 “(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
2. The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.” PER UWA, J.C.A.
DOCUMENT: WHEN WILL A DOCUMENT BE TERMED A CERTIFIED TRUE COPY

A document can only be termed a certified true copy of a public document if the payment of the legal fee has been done, with a certification written at the foot of such copy that it is a true copy of the original, it must be dated and subscribed by an officer with his name and official title. Exhibit ‘B’ having failed to comply with the requirements cannot qualify as a certified true copy of the Deed of Assignment; a public document. See NDAYAKO VS. MOHAMMED (2006) 17 NWLR (PT. 1009) 676,OMISORE VS. AREGBESOLA & ORS & ORS (2015) 15 NWLR (PT. 1482) 205 and NTUFAM (HON.) POLYCARP EFFIOM & ANOR VS. HON. CHARLES O. EKPE & ORS (2019) LPELR – 48976 (CA). I hold that Exhibit ‘B’ is not a certified document. An uncertified and undated public document is worthless. See G.S. & D. INDUSTRY LTD VS. N.A.F.D.A.C. (2012) 5 NWLR (PT. 1294) 511 at 536. No doubt, certified copies of a public document are deemed to be originals, where there is no certification the presumption of regularity will not be ascribed to it, it ought to be certified for the Court to accept its authenticity and utilize same. Before a public document can be tendered, accepted and utilized by the Court it must be certified. A public document is said to be certified if:
1. It was paid for.
2. There is an endorsement/certificate that it is a true copy of the document in question.
3. The endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and official title.
The certified copies of documents are as good as originals where the above conditions are met; otherwise the document is worthless even where tendered, as in the present case. The trial Court was right to have held that Exhibit ‘B’ needed certification in accordance with Section 104 of the Evidence Act. See TABIK INVESTMENT LIMITED & ANOR VS. GUARANTY TRUST BANK (PLC) (2011) LPELR – 3131 (SC). PER UWA, J.C.A.

RELIEFS: NATURE OF GRANT OF DECLARATORY RELIEFS

Declaratory reliefs are not granted as a matter of course. See C.O.P. TARABA STATE & ANOR VS. ALH. MOHAMMED DABO & ANOR (2019) LPELR – 47215 (CA) P. 21; PARAS. B – D, CHUKWUMAH VS. SHELL PETROLEUM (NIG) LTD (1993) LPELR – 864 (SC) PP. 64 – 65, PARAS. G – B, LADOJA VS. INEC (2007) LPELR – 1738 (SC) PP. 60 – 61, PARAS. B – F. PER UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

ALHAJI YAYA ABUBAKAR APPELANT(S)

And

MALLAM ABDUL- HADI DAHIRU RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant as plaintiff before the Adamawa State High Court (hereafter referred to as the trial Court) presided over by Nathan Musa, J. claimed against the Respondent as defendant as follows:
(a) “A declaration that the plaintiff is the lawful and Bonafide holder of Right of Occupancy No. GS/8085 registered as No. 8329 at page 8329 Volume 64 at the Land Registry Yola in respect of apiece of land measuring 1.000 Hectares situates and lying at Jimeta (Sangere) Jimeta-Numan Road, Yola Adamawa State.
(b) An order of perpetual injunction restraining the Defendant, his agents, privies and all those claiming through him from further act as trespass on the plaintiff’s land.
(c) N500,000.00 as general damages for trespass.
(d) Cost of filing this suit.”

At the trial, the Appellant called one witness and tendered Exhibit ‘A’, Certificate of Occupancy No. GS/8085 dated 1st March, 1989 and Exhibit ‘B’, Deed of Assignment registered on the 23rd February, 2012. The Respondent on his part called three (3) witnesses and tendered the following

Exhibits: Exhibit ‘C’ document titled ‘Gift of Land’ dated 13th December, 2013, Exhibit ‘D’ document titled ‘Proof of Ownership’, Exhibit ‘E’, Letter addressed to the Hon. Commissioner of Lands & Survey, Yola and Exhibit ‘F’, document titled ‘Sale Agreement.’ In its judgment of 11/12/18, the trial Court dismissed the Appellant’s claim. Dissatisfied with the said judgment, the Appellant appealed to this Court.

The background facts on the part of the Appellant is that sometime on 1st March, 1989, one Mohammed Bosai Hairu (deceased) was allocated a plot of land by the then Gongola State Government measuring 1.000 Hectares covered by a Certificate of Occupancy No. GS/8085 which was said to have been registered as No. 4215 at page 4215 Volume 47, March, 1989 and situate and lying at Jimeta (Sangere) Jimeta – Numan Road, Yola, Adamawa State. It was made out that the said Mohammed Bosai Hairu exercised numerous acts of possession and ownership of the land without any hindrance until the Appellant indicated interest over the said land upon the grant of consent by

the Governor of Adamawa State, the said Mohammed Bosai Hairu assigned all his rights and interest over the said land to the Appellant in consideration of the sum of N250,000.00, the said assignment was registered as No. 8329 at page 8329 Vol. 64 at the Land Registry Office Yola on the 23rd February, 2012.

The Appellant made out that he exercised acts of possession and ownership over the said land without any hindrance until the appellant noticed that the Respondent had authorized the encroachment and activities on the land.

The Appellant distilled two (2) issues for the determination of the appeal thus:
(1) Whether Exhibit ‘B’ is a Public document that requires certification in accordance with the provisions of Section 104 of the Evidence Act, 2011. (Distilled from ground 4)
(2) Whether from the facts of this case and the totality of evidence adduced before the trial Court (oral and documentary) the Appellant has proved his claim on the preponderance of evidence. (Distilled from grounds 1, 2 and 3).

In response, the Respondent also distilled two (2) issues for the determination of the appeal thus:

“Whether the trial judge was right in law when he held that Exhibit ‘B’ is a Public Document and ought to comply with the provisions of Section 104 Evidence Act, 2011 for it to be relevant in Court. Distilled from Ground 4.
ii. Whether in view of the evidence advanced, the trial judge was right to have held that the plaintiff (now Appellant) has failed to prove his case as required by Law.” Distilled from Grounds 1 – 3.

Learned counsel to the Appellant Hussaini G. Maidawa Esq. adopted & relied on his further amended brief of argument filed on 20/1/2020 deemed properly filed on 19/3/2020 as his argument in this appeal in urging us to allow the appeal and set aside the judgment of the trial high Court.

In arguing his issue one, it was submitted that Exhibit ‘B’ (Registered Deed of Assignment) even though a public document does not require certification in line with Section 104 of the Evidence Act, 2011 as it is the original of a public document. Further, that the combined effect of Sections 86 and 102 of the Evident Act, an original public document does not require certification before it is admitted in evidence.

See NGADIUKWU VS. MOGHALU & ORS (2014) – 42366 at 68 – 69, PARAS E-F, GTBANK VS. GARBA (2015) LPELR – 41656 at 60, PARAS. C-F; KASSIM VS. STATE (2017)LPELR – 42586, UWUA UDO VS. THE STATE (2016) 2 – 3 SC 29 at 47 – 54. In conclusion under this issue, it was the contention of the learned counsel that Exhibit ‘B’ being an original did not require certification and faulted the trial Court’s decision that being a public document it ought to have complied with Section 104 of the Evidence Act. Further, that the trial Court ought not to have rejected the certification done on Exhibit ‘B’, it was argued that it was not required and was done in excess of what is required by law.

Issue two questioned the evaluation of evidence done by the trial Court. It was submitted that the respondent did not rebut the presumption that Exhibit ‘A’ was issued by a competent authority. It was argued that Mohammed Bossai Hairu had died and could not have been called to testify as expected by the learned trial judge. Further, that Exhibit ‘B’ had been tendered in evidence without objection.

It was contended that the vendor’s title would be expected to be proved where the vendor’s title is questioned but, where the vendor’s title is not in issue there would be no need to call the vendor or grantor. See OZOKPO VS. PAUL (1990) 2 NWLR (PT 133) at 494, YAKUBUI VS. IMPRESIT BAKOLORI PLC (2011) 6 NWLR (PT 1244) 564 at 580 – 581, PARAS. F – A. It was argued that compensation was not in issue but, rather the Appellant’s claim is for declaration of title. The two situations were distinguished while reliance was placed on OLUKOGA VS. FATUNDE (1996) NWLR (PT 462) 516 at 530, PARAS. F-G. It was submitted that a plaintiff could rely on the weas knesor admission of the defendant to prove his claim if such admission supports his case. See, ELEWAJU VS. ONISAODU (2000) 3 NWLR (PT 647) 95 at 119, PARA. E. Further, that it is settled law that where land has been compulsorily acquired by Government, no reversionary right can be claimed by any party because compensation was not paid to him. See SOBANDE VS. IGBOEKWE (2016) 11 NWLR (1523) PAGE 335 at 355, PARAS. D – H, ONEMU VS. COM. FOR AGRIC & NATURAL RESOURCES, ASABA (2019) 11

NWLR (PT 1682) 1 at 30; PARAS. A-D. It was argued that by Exhibit ‘E’, the Adamawa Emirate Council are claiming a reversionary right after it had given up its title for about thirty (30) years, page 159 of the printed records of appeal. It was concluded that the fourth paragraph of Exhibit ‘E’ is a concession by the Adamawa Emirate Council that the Government is in possession of the land in dispute contrary to the contention of the Respondent’s learned counsel that it is the Respondent that is in possession of the land in dispute. It was argued that the Appellant could rely on Exhibit ‘E’ tendered by the Respondent to establish his case.

In response, the learned counsel to the Respondent, Salihu Adamu Esq., adopted and relied on his Further Amended Respondent’s brief of argument filed on 24/4/2020 but deemed properly filed on 4/6/2020 as his argument in this appeal in urging us to resolve all the issues in favour of the Respondent, dismiss the appeal for lacking in merit and affirm the judgment of the trial Court. In arguing his issue one, it was submitted that the trial Judge was right when he held that a

Deed of Assignment properly registered becomes a public document and ought to comply with the provisions of Section 104 of the Evidence Act, 2011. Section 102 (b) was also relied upon. Further, that there was no evidence of payment of the required legal fee before Exhibit ‘B’ was obtained by the plaintiff; the name of the certifying officer was also not on it contrary to the provisions of Section 104 of the Evidence Act, 2011. See OMISORE VS. AREGBESOLA (2015) ALL FWLR (PT. 813) PAGE 1673 at P. 1690. Also, that Exhibit ‘B’ was tendered by the Appellant as a Certified True Copy, suggesting that the document is a Certified True Copy. See OHA VS. UZOMA (2015) ALL FWLR (PT 790) PAGE 1232 at 1236.

It was argued that Exhibit ‘B’ is undated. See OGBAHON VS. REG. TRUSTEES CCGG (2001) FWLR (PT 80) at 1496. Further, that failure to object to the tendering of Exhibit ‘B’ does not mean that it cannot be raised on appeal. See ALADE VS. OLUKADE (1976) 2 SC 183. It was concluded on this issue that evaluation of evidence is the duty of the trial Court. See AWOYOOLU & ANOR VS. ARO & ANOR (2006) ALL FWLR (PT 308) PAGE 1319 at 1335.

In arguing the Respondent’s issue two, it was submitted that there is no evidence on the part of the Appellant to show that Exhibit ‘A’ was signed by the Military Governor, but it was rather signed on his behalf by an unnamed person with no designation, reference was made to Section 93 (1) of the Evidence Act, 2011. It was re-argued that Exhibit ‘B’ the Deed of Assignment tendered by the Appellant is not admissible in law having offended Section 104 of the Evidence Act, 2011, it was also undated. It was further argued that the Appellant testified that Exhibit ‘B’ was made in 2012 while on the face of it, it was made in 2009 at pages 140 and 149 of the printed records of appeal.

It was submitted that the Appellant who sought declaratory reliefs at the trial Court ought to justify same being granted to him. See SOLOMON vs. MONDAY (2015) ALL FWLR (PT. 762) PAGE 1695 at 1700. It was reargued that the Defence of the Respondent was unchallenged. See OGUNDALU vs. MACJOB (2015) ALL FWLR (PT. 784) PAGE 103 at 108, ACHIMUGU vs. MINISTER OF FCT (1998) 11 NWLR (PT. 574) 467. It was concluded that where a declaratory

relief is sought for title based on a grant, the beneficiary must plead and prove the origin of title of that particular person, family or community.

I will utilize the issues as formulated by the Appellant which are similar to those formulated by the Respondent but differently worded to determine the issues that have arisen in this appeal. The Appellant’s first issue is whether Exhibit ‘B’ (Deed of Assignment registered on the 23rd February, 2012) is a public document that requires certification in accordance with the provisions of Section 104 of the Evidence Act, 2011? No doubt the learned counsel to the Appellant in his brief of argument agreed that Exhibit ‘B’ is a public document but argued that it did not require certification as it is an original copy by the combined effect of Sections 86 and 102 of the Evidence Act. It is apt at this point to reproduce Section 104 of the Evidence Act, 2011 for ease of reference;
104 “(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed

in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
2. The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”
On the face of Exhibit ‘B’, there is nothing to show that the required legal fee had been paid in form of the endorsement of payment or receipt number by the plaintiff. The name of the officer that endorsed or certified the said Exhibit is not on it, in compliance with Section 104 of the Evidence Act. Exhibit ‘B’ was tendered as a Certified True Copy of the Deed of Assignment; therefore, it ought to have complied with the requirements by law for the Court to have utilized same.
Further, Exhibit ‘B’ which was heavily relied upon by the Appellant is undated. A document can only be termed a certified true copy of a public document if the payment of the legal fee has

been done, with a certification written at the foot of such copy that it is a true copy of the original, it must be dated and subscribed by an officer with his name and official title. Exhibit ‘B’ having failed to comply with the requirements cannot qualify as a certified true copy of the Deed of Assignment; a public document. See NDAYAKO VS. MOHAMMED (2006) 17 NWLR (PT. 1009) 676,OMISORE VS. AREGBESOLA & ORS & ORS (2015) 15 NWLR (PT. 1482) 205 and NTUFAM (HON.) POLYCARP EFFIOM & ANOR VS. HON. CHARLES O. EKPE & ORS (2019) LPELR – 48976 (CA). I hold that Exhibit ‘B’ is not a certified document. An uncertified and undated public document is worthless. See G.S. & D. INDUSTRY LTD VS. N.A.F.D.A.C. (2012) 5 NWLR (PT. 1294) 511 at 536. No doubt, certified copies of a public document are deemed to be originals, where there is no certification the presumption of regularity will not be ascribed to it, it ought to be certified for the Court to accept its authenticity and utilize same. Before a public document can be tendered, accepted and utilized by the Court it must be certified. A public document is said to be

certified if:
1. It was paid for.
2. There is an endorsement/certificate that it is a true copy of the document in question.
3. The endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and official title.
The certified copies of documents are as good as originals where the above conditions are met; otherwise the document is worthless even where tendered, as in the present case. The trial Court was right to have held that Exhibit ‘B’ needed certification in accordance with Section 104 of the Evidence Act. See TABIK INVESTMENT LIMITED & ANOR VS. GUARANTY TRUST BANK (PLC) (2011) LPELR – 3131 (SC). At pages 139 and 140 respectively of the printed records of appeal, the trial Court held thus:
“Having a look at Exhibit “B” it is not in doubt that there is no evidence of payment of the required legal fee before it was obtained by plaintiff. Still it is clear by looking at the document that the name of the officer and title is not indicated on it. I therefore agree with the submission of counsel to the Defendant that the Exhibit was not properly

certified in accordance with the provisions of Section 104 of the Evidence Act…
This is the situation that Exhibit “B” found itself in. It only had certified True Copy Stamp bearing a signature of someone without stating his or her name and designation. I therefore agree with submission of counsel to Defendant that the Exhibit lacks probative value.”

I cannot fault the above view of the trial Court; I am at one with same. I resolve issue one against the Appellant.

The appellant’s second issue questions the evaluation of evidence by the trial Court. In respect of Exhibit “A” (certificate of occupancy) relied on by the Appellant, it was contended that the Governor signed Exhibit “A” without any proof. Therefore, the Governor’s consent was not proved. Further, no named person signed Exhibit “A” on behalf of the Governor and there is nothing on the face of Exhibit “A” to show that it was signed by the Governor. I have held under issue one that Exhibit “B” did not comply with the provisions of Section 104 of the Evidence Act, 2011, therefore it is

worthless and could not be of any value in proof of the Appellant’s case at the trial Court.

It is on record that the Appellant testified that Exhibit ‘B’ was made in 2012, while on the face of it, it was made in 2009. There was clear discrepancy as to when Exhibit “B” was made. I agree with the submissions of the learned counsel to the Respondent that the Appellant who sought declaratory reliefs had the duty to adduce credible and cogent evidence to justify the grant of the reliefs sought in line with the Appellant’s pleadings. Declaratory reliefs are not granted as a matter of course. See C.O.P. TARABA STATE & ANOR VS. ALH. MOHAMMED DABO & ANOR (2019) LPELR – 47215 (CA) P. 21; PARAS. B – D, CHUKWUMAH VS. SHELL PETROLEUM (NIG) LTD (1993) LPELR – 864 (SC) PP. 64 – 65, PARAS. G – B, LADOJA VS. INEC (2007) LPELR – 1738 (SC) PP. 60 – 61, PARAS. B – F.

Further, the Appellant did not call his grantors, the Ministry of Land and Survey to testify as to how he acquired his title which is fatal to his case. The appellant ought to have adduced or called evidence to

prove his alleged vendor’s root of title or how his grantors acquired the land in dispute. See NGENE VS. IGBO & ANOR (2000) LPELR – 1987 (SC) PP. 31 – 32, F – B, IBENYE & ORS VS. AGWU & ANOR (1998) LPELR – 1393 (SC) P. 51, PARAS. B – C, ANUKAM VS. ANUKAM (2008) LPELR – 500 (SC) P. 20, PARAS. E – F, OGBAJI VS. UTAHILE & ORS (2019) LPELR – 47186 (CA) PP. 20 – 22, PARAS. F – B, OGUNLEYE VS. ONI (1990) 4 S.C. 130, (1990) LPELR – 2342 (SC), OSAFILE VS. ODI (1994) LPELR – 2784 (SC)and ALHAJI MUSA ABDULLAHI VS. MAL. YUSUF NUHU (2013) LPELR – 22625 (CA) PP. 34 – 36, PARAS. C – E. I hold that the alleged grantor’s root of title was not proved. The appellant did not challenge or deny the averments of the Respondent in his statement of defence therefore; the trial Court was right to have held that the Appellant was unable to prove his case as required by law and was right to have dismissed same. I cannot fault the trial Court’s evaluation of the evidence adduced before it. Issue two is resolved against the appellant.

In sum, the appeal fails and it is hereby dismissed for lacking in merit. The judgment of the trial Court in Suit No. ADSY/1/16 delivered on 11th January, 2018 is hereby affirmed.
I award costs of N50,000.00 (Fifty Thousand Naira) to the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.
My learned brother has exhaustively considered the two issues for determination. I have nothing more to add.
I adopt the reasoning and conclusion in the lead judgment in dismissing the appeal for want of merit.
The judgment of the Court below is affirmed by me.
I abide by all other orders including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

HUSSAINI G. MAIWADA ESQ., with him, T.J. OJO ESQ. and BOBGAH SAMUEL ESQ. For Appellant(s)

SALIHU ADAMU ESQ. For Respondent(s)