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ABUBAKAR v. IBRAHIM & ORS (2022)

ABUBAKAR v. IBRAHIM & ORS

(2022)LCN/15964(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/K/239/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

DANIEL MAGAJI ABUBAKAR APPELANT(S)

And

1. SULE IBRAHIM 2. HABI IBRAHIM 3. NASIRU IBRAHIM 4. SIRAJO IBRAHIM RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE DEFENCE OF LACHES AND ACQUIESCENCE MUST BE SPECIFICALLY PLEADED AND PROVED

While it is true that an issue of jurisdiction can be raised for the first time on appeal and without leave of Court, ENUGWU V. OKEFI (2000) 3 NWLR (Pt. 650) 620, GAJI V. PAYE (2003) 5 SC P. 53, ACHONU V. OKUWOBI (2017) 14 NWLR (Pt. 1584) 142, it is also the law and the stand of the same apex Court that the defence of laches and acquiescence must not only be pleaded and proved before it can be relied upon, the details of the facts leading to the lapse must be particularized in the pleadings. In ISSAC V. IMASUEN (2016) LPRLR – 26066 (SC) at 15 – 16 F – A, KEREKE-EKUN JSC reiterated thus:- “The law is that a defence of laches and acquiescence must be specifically pleaded and proved. Full facts and particulars must be pleaded. See Adeniran v. Alao (2001) 12 SCW 337. The person relying on the defence must plead that the respondent fraudulently, knowingly and deliberately stood by while he changed his position. See Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337 at 381.”
See also ATUCHUKWU V. ADINDU (2011) LPELR – 3821 (CA) where this Court relief on the case of ADENIRAN V. ALAO (2001) 12 SCNJ 337, and held inter alia:
“…… The full facts and particulars which must be pleaded by the Defendant must include details to prove that there had been time lapse between his possession of the land in dispute and the adverse title challenging his possession. He must plead that the Respondent fraudulently, knowingly and deliberately stood by while he changed his position.”
As a matter of fact even a statutory defence of Limitation Law must be specifically pleaded and proved. Where not pleaded, it is deemed waived and cannot be raised on appeal. Though a jurisdictional issue, jurisdiction has been clarified into two types. Viz:- (1) Jurisdiction as a matter of substantive law and (2) Jurisdiction as a matter of procedural law.
PER WAMBAI, J.C.A.

DISTINCTION BETWEEN JURISDICTION AS A MATTER OF SUBSTANTIVE LAW AND JURISDICTION AS A MATTER OR PROCEDURAL LAW

It is necessary to draw a distinction between the two. Matters (including facts) which define the rights and obligations of the parties are matters of substance. Substantive jurisdiction gives or defines the right to be enforced and where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived. On the other hand, Matters which are means by which matters in controversy or litigated upon is enforced, are matters of procedure. This can be waived. Where a statute gives a party a benefit he may decide to waive it and by so doing confer jurisdiction on the Court.
A statute of Limitation being a law which gives a party, usually the Defendant, the benefit of using it as a shield against the plaintiff’s case, has been held to be an issue of procedural jurisdiction and not one of substantive jurisdiction. In the case of CHIBGU V. TONIMAS (2006) 26 NSCR 18, (2006) LPELR-846 (SC) the Supreme Court unequivocally held that the issue of limitation law is an issue of procedural jurisdiction which if not raised at trial is deemed to have been waived unlike that of the substantive law. Belgore JSC held thus:-
“The Limitation Law is certainly procedural, setting out clearly time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such statutes on this all-important subject must be read as a whole. As such whether specifically stated or not in such a statute, it must be read retroactively. A person should not sleep on his rights.”
To the best of my knowledge CHIGBU VS. TONIMAS (SUPRA) remains the law as reinforced in the case of TOYIN VS. MUSA & ORS (2019) LPELR-49328 (SC) among others where I.T MUH’D JSC (now CJN) sustained the preliminary objection. The Court relied on CHIGBU VS. TONIMAS (SUPRA), OJOKOLOBOV ALAMU (1987) 3 (NWLR (PT. 127) 42 among others and held that a limitation law setting out the time frame within which an action may be brought and concluded is procedural. That statutes which alter the time within which proceedings may be taken and concluded are procedural. Thus, Section 285 (12) Constitution of Federal Republic of Nigeria 1999 as amended shortening (limiting) the period within which proceedings must be concluded was held to be procedural and not the substantive law.
In the case of AJE PRINTING (NIG) LTD V. EKITI LOCAL GOVERNMENT AREA (2021) 13 NWLR (PT. 1794) 498 decided on 23rd April, 2021, the Apex Court took the position that the right to object to a suit on ground of statute bar is a private legal right which can be waived and where the party fails to plead the defence of Limitation Law, he is deemed to have waived the right to raise the defence. The Court held:
‘‘The legal right of a defendant has to object to a suit for being statute barred under the Limitation Law ensures to the benefit of the defendant. He can waive that objection or the right to object, the right being his private legal right.’’
Similarly, in OKO V. A.G. EBONYI STATE (2021) 14 NWLR (PT. 1795) 63, BELGORE V. FRN (2021) 3 NWLR (PT. 1764) 503, BAKARI V. OGUNDIPE (2021) 5 NWLR (PT. 1768) 1 and AJIBODE V. GBADAMOSI (2021) 7 NWLR (PT. 1776) 475, the Supreme Court in the year 2021, reiterated its position that statute of limitation is a matter of procedural jurisdiction and that such matter of procedural jurisdiction are deemed waived when not raised in the trial Court. In essence the need to plead special defences such as the limitation law is paramount, the consequence of non-compliance with the Rules of Court requiring the specific pleading of same being fatal. Such is the stamp of authority by the apex Court on the effect of non-pleading of the statute of limitation as required by the Rules of the lower Court. This is the purport of the decision in KETU VS. OMIKORO (1984) 10 SC 265 at 267 – 268 where Obaseki JSC stated thus:
“It is a cardinal rule of pleading that such a specific matter as Limitation Law must be expressly set out or pleaded in the statement of defence. Once it is not pleaded the defendant cannot be granted the protection of that law. In this case, it is not pleaded and even if it is applicable, the Court cannot grant the defendants the benefit of the limitation law contrary to the principle of the avoidance of surprise.”
In the case at hand the Appellant having not pleaded any facts of laches or acquiescence on the part of the Respondents, he is deemed to have waived his right to raise the defence and precluded from taking benefit or advantage of the presumption. PER WAMBAI, J.C.A.

THE ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is now trite that in an action for declaration of title to land, the onus is on the claimant to prove his case. He must succeed on the strength of his case and not on the weakness of the defence or opponent’s case except where the weakness of the defence or opponent supports his own case. OGUANNHU V. CHIEGBOKA (2013) 6 NWLR (Pt. 1351) 588 at 604. PER WAMBAI, J.C.A.

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is also settled that a claimant may prove his title to land by any of the following ways: (i) By Traditional evidence; (ii) By Production of documents of title which are duly authenticated; (iii) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion thereof; (iv) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200, 210-221 and ASHIRU V. OLUKOYA (2006) LPELR-580 (SC) OR (2006) 11 NWLR (Pt. 990). PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Katsina State High Court, Malumfashi in Suit No. KTH/MF/12/2019 delivered by Hon. Justice A. A. Bawale on 18th May, 2020 which declared title in the disputed land in favour of the Respondents and granted all their reliefs.

The Respondents are the children of one Ibrahim Magaji Abubakar who inherited the land in dispute part of the larger land from his own father, Magaji Abubakar who founded the land. The Appellant is the younger brother to the Respondents’ father, Ibrahim Magaji Abubakar. Sometimes in 1997 the Respondents’ father (Ibrahim Magaji Abubakar) left home for an unknown place and his where about is yet unknown. His eldest son, the 1st Respondent, started farming on the land without interference until about 7 years before the institution of the suit in 2019 (1912), when the Appellant chased him away claiming that he had bought the land from Respondents’ father in 1990 before he left home. The first Respondent reported the incidence to his other uncles whose attempt for amicable settlement were unsuccessful leading to the eventual institution of the case at the lower Court whereat the Respondents claimed against the Appellant as Defendant the following reliefs:-
1. A DECLARATION that the plaintiffs are the beneficial owners of a piece of farmland lying and situate at Dogon Dawa, matazu Local Government, bonded to the South by the farmland of Capt. Yusuf Magaji Abubakar, to the West by the road from Matazu to Ungwan Maiyaji; to the East by another of Capt. Yusuf Magaji Abubakar and to the North by the land of Adamu Yar Kanya title to which they (plaintiff) acquired by way of inheritance from their father Ibrahim magaji Abubakar.
2. AN ORDER of perpetual injunction restraining the defendant, his children, heirs, representatives in title, agents, cronies, etc however and whomsoever so described from trespassing into the land described in paragraph 1 above.
3. AN ORDER directing the defendant, his children, heirs, representatives in title, successors, agents, cronies, etc to forthwith, vacate their occupation of the plaintiffs’ land described in paragraph 1 above.

​Appellant denied the claim and filed a statement of defence with the necessary processes.

In proof of their claim the Respondents called three of their four witnesses who adopted their written statements on oath, the 4th witnesses (PW3) having been dispensed with for failure to sign his deposition.

The Appellant also tendered two exhibits, Exhibits D1 & D2. In its judgment the lower Court at page 87 of the record made the following findings: –
1. The plaintiffs in the instance case having established by traditional evidence how they came to possess and owned the farmland in dispute, it is for the defendant to prove the purchase of same from the plaintiffs’ father prior to his departure to unknown place as pleaded.
2. The defendant having pleaded and relied on Exhibit D1 and unsigned sale agreement, cannot be said to have established purchase of the farmland in dispute from the plaintiffs’ father prior to his relocation to unknown place. The defendant has thus failed to discharge the burden of proof of purchase of the farmland in dispute which shifted to him.
It thus concluded:
“The Plaintiffs are therefore entitled to the judgment of this Court as per their claims …”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Displeased with the judgment, the appellant filed a Notice of Appeal on 10th June, 2020 predicated upon 3 grounds from which B. Y Gambo Esq., who settled the Appellant’s brief of argument filed on 4/11/2021 and a reply brief on 17/12/2021, submitted 3 issues for determination to wit: –
1. Whether the trial Court was not wrong when it held that the Appellant is not entitled to judgment coupled with long possession of a period of about 30 years (Ground 1 and 2)
2. Whether the trial Court was not wrong when it assumed jurisdiction over this matter on the basis that the Appellant has been in possession for a period of about 30 years (Ground 3)
3. Whether the trial Court was not wrong when it rejected Sales Agreement and failed to rely on oral and traditional evidence of the Appellant (Ground 1).

The Respondent’s brief of argument settled by Panshak K. Audu Esq., was filed on 30/11/2021 wherein 2 issues were nominated for determination, namely: –
i. Whether the trial Court had jurisdiction when it heard and determined the Respondents’ case (Ground 2).
ii. Whether the Respondents proved their case before the trial Court (Grounds 1 & 3).

The learned Counsel for the Respondent has challenged the competence of issue no. 3 formulated by the Appellant on ground that the said issue amounts to proliferation, issue no. 1 having earlier been formulated from the same ground (see paragraph 5.09 of Respondent’s brief of argument). The Appellant did not respond to this argument in his reply brief.

The Respondent is right. The law is settled that while an issue for determination may arise from one or more grounds of appeal, the reverse is not permissible in law. A ground of appeal can only donate one issue for determination. It cannot give birth to multiple issues for determination. See OSENI V. BAJULU (2010) ALL FWLR (Pt. 511) 813, MARCATHY V. PDP (2021) ALL FWLR (Pt. 648) 833.


The Appellant having utilized ground one together with ground three in formulating issue no. 1, ground one is no longer available to give birth to issue no 3. The implication is that Appellants issue no. 3 is not predicated on any valid ground of appeal which renders the issue and all argument canvassed therein incompetent and liable to be struck out. Consequently, appellant’s issue 3 and argument thereon are struck out and shall be discountenanced.

The Appellant’s surviving issues 1 and 2 are substantially the same with the Respondent’s two issues, I shall determine the appeal on the Respondent’s issues which are better couched.

ISSUE NO I
Whether the trial Court had jurisdiction when it heard and determined the Respondents’ case (Ground 2).

APPELLANT’S SUBMISSION
Arguing this issue as his issue no. 2, it was submitted that the Appellant having been in possession of the land for a period of over 30 years, the concept of “prescription” caught up with the suit which being a jurisdictional issue, deprives the Court of jurisdiction and renders the suit a mere academic, moot or hypothetical exercise. MIN, W & T ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (Pt. 1351) 481, PLATEAU STATE & ANR V. A.G.F (2006) 3 NWLR (Pt. 967) 346 at 419 G – H.

Flowing from this, he submitted since it is obvious that the institution of the plaintiffs/Respondents originating process is invalid, incompetent illegal, null and void, same constitutes an abuse of Court process aimed at disturbing, oppressing, annoying and embarrassing the Appellant to waste the precious judicial time of his Court, citing the cases of MABAMIJE V. OTTO (2016) ALL FELR (Pt. 828) (CA) P. 883, paragraphs F – G, ALLANAH V. KPOLOKWU (2016) ALL FWLR (Pt. 830) (SC) P, 1207 at p. 1222, paragraphs B – E, NECTARIOUS MARITIME V. CITIBANK NIGERIA (2016) ALL FWLR (Pt. 825) (CA) p. 214 at p. 226, paragraphs G – H, p. 227, paragraphs B – E, DONALD V. SALEH (2015) 2 NWLR (Pt. 1444) 529, OKOROCHA V. P.D.P. IKPEKHIA V. FEDERAL REPUBLIC OF NIGERIA (2015) ALL FWLR (Pt. 771) (CA) P. 1597 at pp. 1620 – 1621, paragraphs F – C. among others.

RESPONDENT’S SUBMISSION
Responding per contra, the learned Respondent’s counsel on his issue no. 1 submitted that the Appellant’s contention for the first time in this Court that the Respondents acquiesced on their right and that the limitation law of Katsina State is 10 years for the institution of an action, is without substance because such a defence of laches and acquiescence is strictly not of law but of fact which must not only be pleaded and proved, but the details of the facts leading to the lapse of time particularized and that the defence cannot be raised as a fresh issue without leave of Court, citing the cases of BEST VISION CENTRE LTD V. U.A.C.N P.D.C PLC (2003) 13 NWLR (Pt. 838) 594 ATUCHUKWU V. ADINDU (2011) LPELR – 3821 (CA).

He emphasized further that the issue of laches and acquiescence contrary to the Appellant’s submission, is not a question of jurisdiction that can be raised on appeal for the first time without leave of Court. That Order 17 Rule 3 of the Katsina State High Court Rule is emphatic on the need to plead such a defence by a defendant who seeks to rely on it.

It was further submitted that the Respondents maintained in their pleadings how they became the owners of the land in dispute as admitted by the Appellant and that the cause of action having arisen 7 years prior to the institution of the action when the Appellant chased the 1st Respondent away from the farm, Appellant cannot now claim though not so raised at the trial Court, that the Respondent’s action is statute barred. He referred to the case of EJIMOFOR V. NITEL (2007) 1 NWLR (Pt. 1014) 153 at 192 – 193 E – F on when a cause of action arises.

Learned Counsel argued that the Appellant missed the point when he used the purported long possession on the disputed land to constitute laches and acquiescence as well as statute of limitation against the Respondents urging us to resolve the issue in favour of the Respondents.

RESOLUTION OF ISSUE I
The scanty submission of the learned Appellant’s Counsel on the concept of prescription simpliciter (no specific mention was made of any Limitation Law contrary to the Respondent’s argument), is based on the claim that the Appellant had been in possession of the land for over 30 years.

The doctrine of prescription as distinguished from Limitation Law was explained by Supreme Court in ATUNRASE & ANOR V. SUNMOLA & ANR (1985) LPELR – 634 (SC). Thus
“prescription” is primarily a common law doctrine, although extended by statute, by which certain rights (easements and profits) can be acquired over the land of others.
Fundamentally, it is a rule of evidence, leading to the presumption of a grant from the owner of the land and therefore of a title derived through him. On the other hand, limitation is wholly statutory, and is concerned with the title to the land itself. It simply extinguishes a former owner’s right to recover possession of the land, leaving some other person with a title based on adverse possession.
Prescription operates positively, like a conveyance; limitation operates negatively, by eliminating the claim of a person having a superior title.”
Under the English common law, rights easily acquired by prescription are easements and profits.”

However, the law recognizes prescriptive rights such as laches and acquiescence as rights that are acquired over land by an adverse possession. Laches and acquiescence are equitable defences available to a defendant and they derived from the equitable maxim “Delay defeats equities” or equity aids the vigilant and not the indolent. Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “Laches”. However, the adverse possession must not be by forceful occupation or by a trespasser.
The defence merely states that if a land owner stood by while a stranger developed his land in good faith such owner would be estopped from reaping the benefit of such development and a Court of equity would not assist him in enforcing his right. See AFOLABI COKER v. MORIAMO OGUNTOLA AND ORS. (1983) 2 NSCL 869.

In the case at hand, it is not in dispute that the issue of prescription is being raised for the first time on appeal. Appellant’s Counsel contends that being an issue of jurisdiction, he is entitled to raise the issue on appeal for the first time without leave. While it is true that an issue of jurisdiction can be raised for the first time on appeal and without leave of Court, ENUGWU V. OKEFI (2000) 3 NWLR (Pt. 650) 620, GAJI V. PAYE (2003) 5 SC P. 53, ACHONU V. OKUWOBI (2017) 14 NWLR (Pt. 1584) 142, it is also the law and the stand of the same apex Court that the defence of laches and acquiescence must not only be pleaded and proved before it can be relied upon, the details of the facts leading to the lapse must be particularized in the pleadings. In ISSAC V. IMASUEN (2016) LPRLR – 26066 (SC) at 15 – 16 F – A, KEREKE-EKUN JSC reiterated thus:- “The law is that a defence of laches and acquiescence must be specifically pleaded and proved. Full facts and particulars must be pleaded. See Adeniran v. Alao (2001) 12 SCW 337. The person relying on the defence must plead that the respondent fraudulently, knowingly and deliberately stood by while he changed his position. See Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337 at 381.”
See also ATUCHUKWU V. ADINDU (2011) LPELR – 3821 (CA) where this Court relief on the case of ADENIRAN V. ALAO (2001) 12 SCNJ 337, and held inter alia:
“…… The full facts and particulars which must be pleaded by the Defendant must include details to prove that there had been time lapse between his possession of the land in dispute and the adverse title challenging his possession. He must plead that the Respondent fraudulently, knowingly and deliberately stood by while he changed his position.”
As a matter of fact even a statutory defence of Limitation Law must be specifically pleaded and proved. Where not pleaded, it is deemed waived and cannot be raised on appeal. Though a jurisdictional issue, jurisdiction has been clarified into two types. Viz:- (1) Jurisdiction as a matter of substantive law and (2) Jurisdiction as a matter of procedural law.

It is necessary to draw a distinction between the two. Matters (including facts) which define the rights and obligations of the parties are matters of substance. Substantive jurisdiction gives or defines the right to be enforced and where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived. On the other hand, Matters which are means by which matters in controversy or litigated upon is enforced, are matters of procedure. This can be waived. Where a statute gives a party a benefit he may decide to waive it and by so doing confer jurisdiction on the Court.
A statute of Limitation being a law which gives a party, usually the Defendant, the benefit of using it as a shield against the plaintiff’s case, has been held to be an issue of procedural jurisdiction and not one of substantive jurisdiction. In the case of CHIBGU V. TONIMAS (2006) 26 NSCR 18, (2006) LPELR-846 (SC) the Supreme Court unequivocally held that the issue of limitation law is an issue of procedural jurisdiction which if not raised at trial is deemed to have been waived unlike that of the substantive law. Belgore JSC held thus:-
“The Limitation Law is certainly procedural, setting out clearly time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such statutes on this all-important subject must be read as a whole. As such whether specifically stated or not in such a statute, it must be read retroactively. A person should not sleep on his rights.”
To the best of my knowledge CHIGBU VS. TONIMAS (SUPRA) remains the law as reinforced in the case of TOYIN VS. MUSA & ORS (2019) LPELR-49328 (SC) among others where I.T MUH’D JSC (now CJN) sustained the preliminary objection. The Court relied on CHIGBU VS. TONIMAS (SUPRA), OJOKOLOBOV ALAMU (1987) 3 (NWLR (PT. 127) 42 among others and held that a limitation law setting out the time frame within which an action may be brought and concluded is procedural. That statutes which alter the time within which proceedings may be taken and concluded are procedural. Thus, Section 285 (12) Constitution of Federal Republic of Nigeria 1999 as amended shortening (limiting) the period within which proceedings must be concluded was held to be procedural and not the substantive law.
In the case of AJE PRINTING (NIG) LTD V. EKITI LOCAL GOVERNMENT AREA (2021) 13 NWLR (PT. 1794) 498 decided on 23rd April, 2021, the Apex Court took the position that the right to object to a suit on ground of statute bar is a private legal right which can be waived and where the party fails to plead the defence of Limitation Law, he is deemed to have waived the right to raise the defence. The Court held:
‘‘The legal right of a defendant has to object to a suit for being statute barred under the Limitation Law ensures to the benefit of the defendant. He can waive that objection or the right to object, the right being his private legal right.’’
Similarly, in OKO V. A.G. EBONYI STATE (2021) 14 NWLR (PT. 1795) 63, BELGORE V. FRN (2021) 3 NWLR (PT. 1764) 503, BAKARI V. OGUNDIPE (2021) 5 NWLR (PT. 1768) 1 and AJIBODE V. GBADAMOSI (2021) 7 NWLR (PT. 1776) 475, the Supreme Court in the year 2021, reiterated its position that statute of limitation is a matter of procedural jurisdiction and that such matter of procedural jurisdiction are deemed waived when not raised in the trial Court. In essence the need to plead special defences such as the limitation law is paramount, the consequence of non-compliance with the Rules of Court requiring the specific pleading of same being fatal. Such is the stamp of authority by the apex Court on the effect of non-pleading of the statute of limitation as required by the Rules of the lower Court. This is the purport of the decision in KETU VS. OMIKORO (1984) 10 SC 265 at 267 – 268 where Obaseki JSC stated thus:
“It is a cardinal rule of pleading that such a specific matter as Limitation Law must be expressly set out or pleaded in the statement of defence. Once it is not pleaded the defendant cannot be granted the protection of that law. In this case, it is not pleaded and even if it is applicable, the Court cannot grant the defendants the benefit of the limitation law contrary to the principle of the avoidance of surprise.”
In the case at hand the Appellant having not pleaded any facts of laches or acquiescence on the part of the Respondents, he is deemed to have waived his right to raise the defence and precluded from taking benefit or advantage of the presumption.

The defence does not avail him. In other words, the Appellant cannot draw the inference that he has acquired title to the disputed land by prescription for long possession of the land having not pleaded same. 

Moreover, having not pleaded same lapse of time alone does not constitute laches or acquiescence to deprive the owner of land his legal right to the land. For the defence to operate, lapse of time must be accompanied by or coupled with some other factors which would render it inequitable for the owner to enforce his claim.
In the absence of such circumstances delay will be immaterial. 

In KAYODE V. ODUTOLA (2001) 11 NWLR Pt. 725Pg. 1 at Pg. 36-37, the Supreme Court explained the nature of laches and acquiescence which will deprive a man of his legal rights and held that before a party can avail himself of acquiescence, the following elements must be shown to be present by the Defendant:
(a) That the Defendant was in fact mistaken as to his own rights over the land.
(b) That the Defendant had in reliance as to his mistake expended money on the land.
(c) That the Plaintiff knew of the existence of his own right which is inconsistent with the right claimed by the Defendant over the land.
(d) That the Plaintiff knew of the mistaken belief by the Defendant of his right.
(e) That the Plaintiff encouraged the Defendant in the Defendant’s expenditure of money

It is obvious that conditions (b), (d) and (e) are absent in the present case. No evidence was led to this effect. In the circumstance, the issue is resolved against the Appellant.

ISSUE No. 2
Whether the Respondents proved their case before the trial Court (Grounds 1 & 3).

APPELLANT’S SUBMISSION
On this issue, it is the contention of the Appellant’s Counsel that the evidence of DW1, DW2 & DW3 show that the Appellant actually purchased the land in dispute from the Respondents’ father and that the said evidence of the Appellant and his witnesses remain unchallenged which the Court is enjoined to act upon, citing the cases of KAYILI V. YILBUK (2015) LPELR – 24323 (SC), OMOREGBE V. LAWANI (1980) LPELR – 2655 (SC), CHUKWU V. STATE (2012) LPELR – 9829 (SC), among others.

​It is his submission that the evidence adduced for the Appellant is that it was the Appellant and not the Respondents who were in possession; that the Respondents had never been in possession of the disputed land.

It was also submitted that the Appellant having tendered the sale agreement without any objection, the Respondents’ Counsel cannot now raise the issue of its admissibility. That the Respondent is deemed to have waived the right to do so, citing the cases of NASIR V. C.S.C. KANO STATE (2010) LPELR – 1943 (SC), KASSIM V. STATE (2017) LPELR – 42586 (SC). Thus, according to him, the Appellant established both purchase and possession of the land.

He also complained that the lower Court was wrong when it held that the Appellant relied only on documentary evidence when in fact the Appellant’s reliance on both documentary evidence in proof of his title does not take away the fact he also relied on oral evidence corroborated by DW2 & DW3.

RESPONDENTS’ SUBMISSION
Arguing this issue, it was submitted that the Respondents’ case which is admitted by the Appellant is that the land in dispute was first cultivated by the Respondents’ grandfather who exercised acts of ownership on the land up to 1985 when he died. That the portion of the land in dispute is the share of the inheritance to the Respondents’ father who was farming the land but mysteriously left home in 1997 to an unknown place, a fact which the Appellant admitted at paragraphs 5 and 6 of his statement of defence and thus requires no further proof.

He submitted that the Appellant having admitted that the land in dispute originally belongs to the Respondents’ father, the burden shifts to him to establish the purported purchase of same from the Respondents’ father UFOMBA V. AHUCHAOGU (2003) 8 NWLR (Pt. 821) 130, NWAEVARI V. UNION BANK PLC (2021) LPELR – 55655 (CA).

It was his father’s submission that the Appellant who pleaded sale as the method of proving his title to the land has the burden to prove what he asserts by virtue of Sections 131, 132 and 133 of the Evidence Act. That in a bid to prove the sale, the Appellant tendered Exhibits D1 and D2 which unfortunately were not signed by any person, not even the Appellant, hence, the learned trial judge in his wisdom discountenanced same. He cited the case of JINADU V. ESUROMBI – ARO (2009) 4 SCNJ 39 at 56, on the probative value of such exhibits.

In response to the Appellant’s submission that the exhibits having been admitted without objection the Respondent cannot raise any issue on their admissibility, learned Counsel submitted that what the Court considers is the credibility of the evidence in attaching weight to it and not the fact that it was admitted. See AGBI V. OGBEH (2005) 8 NWLR (Pt. 926) 40, 134.

On long possession, it was submitted that long possession without proof of sale of the disputed land cannot inure the Appellant because long possession cannot defeat a claim of a rightful owner. EZEAKU V. ANACHUNA & ORS. (2016) LPELR – 42036 (CA).

On the Appellant’s submission that the oral evidence corroborated the documentary evidence, learned Respondent’s Counsel argued that the submission is misplaced because oral evidence cannot be used to qualify documentary evidence in any manner. OBIDIGWE V. KAY KAY CONST. LTD (2014) LPELR – 24561 (CA).

In his reply brief, learned Counsel to the Appellant cited the cases of NWARIBE V. OWERRI MUNICIPAL & ORS (2015) LPELR 24433 (CA) and NASIR V. C.S.C. KANO STATE & ORS (SUPRA) to submit that Exhibits D1 and D2 having been admitted without objection and not controverted in cross-examination, the Respondents are estopped from raising the point at this stage and that the case of JINADU V. ESUROMBI – ARO (SUPRA) is cited by the Respondents out of place.

Similarly, on the issue of long possession, he submitted that the case of EZEAKU V. ANACHUNA & ORS. (SUPRA) is inapplicable and the applicable authority, he submitted, is the case of MASKALA V. SILLI (2002) LPELR – 1845 (SC).

RESOLUTION OF ISSUE 2
It is now trite that in an action for declaration of title to land, the onus is on the claimant to prove his case. He must succeed on the strength of his case and not on the weakness of the defence or opponent’s case except where the weakness of the defence or opponent supports his own case. OGUANNHU V. CHIEGBOKA (2013) 6 NWLR (Pt. 1351) 588 at 604.

It is also settled that a claimant may prove his title to land by any of the following ways: (i) By Traditional evidence; (ii) By Production of documents of title which are duly authenticated; (iii) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion thereof; (iv) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. See IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200, 210-221 and ASHIRU V. OLUKOYA (2006) LPELR-580 (SC) OR (2006) 11 NWLR (Pt. 990).

The Respondents herein rely on traditional history as a means of proving their root of title to the land in dispute. 

A party who relies on traditional history in proof of his claim for declaration of title to succeed must plead and prove the following:-
(1) Who founded the land;
(2) How he founded the land; and
(3) The particulars of the intervening owners through whom the claimant basis had claim until the land devolved unto him through an unbroken claim leaving no gap which cannot be explained. See ELEGUSHI V. OSENI (2005) 14 NWLR (Pt. 945) 348 at 366 – 362, OKOLO V. DAKOLO (2006) 14 NWLR (Pt. 1000) 401 and NRUAMAH V. EBUZOEME (2013) 11 NSCQR 88 at 111.

The Respondents pleaded their root of title and history of succession at paragraphs 3, 5, 7, 9, 11 as repeated in their written statements on oath.

They pleaded that the land in dispute is part of the larger piece of formulated cleared as a virgin land (founded) and cultivated by their grandfather, Mallam Magaji Abubakar over 100 years ago. Upon his demise his properties were distributed to his heirs including the Respondent’s father, Ibrahim Magaji Abubakar and the Appellant. The land in dispute was given to the Respondents’ father Ibrahim Magaji Abubakar, as his own inheritance. He left home sometimes in 1997 when the Respondents except the first who was then in his teens, were still infants and has not been heard of till date. The 1st Respondent then started farming on the land.

The Appellant who is an uncle to the Respondents admitted these facts at paragraphs 5 and 6 of his statement of defence, that the farmland in dispute was the share of their father’s properties given to the Respondents’ father (Appellant’s brother).

By their pleadings, it is clear that issues were not joined on the traditional history of the land, who founded the land, the intervening owners until it devolved unto the Respondents. In other words, the Respondents’ root of title is not in dispute. Moreover, Respondents’ witnesses testified in support of the pleadings to the same effect. The evidence of PW1, Mallam Ali Magaji, who is the Appellant’s senior brother and uncle to the Respondents as well as PW4 Sule Ibrahim, (the 1st Respondent) all support the pleadings, the depositions of PW2 and PW3 Wada Lawal and Sule Magaji Abubakar respectively which were not signed by them having been struck out.

The law is that a fact admitted needs no further proof. This is the trite position of law. What is admitted needs no further proof. See EHINLANWO V. OKE & ORS (2008) 16 NWLR (Pt. 1113) 357 SKYE BANK & ANOR V. AKINPELU (2010) 9 NWLR (Pt. 1198) 179.
This is so because the onus or burden of proof is an onus or burden to prove an issue. Where issues are not joined and there is no dispute between parties, there cannot be any burden of proof.

The crux of this appeal therefore is whether the Respondents’ had been divested of their title in the land and title is now in the Appellant. The Appellant by his pleadings has undoubtedly admitted that the land in dispute originally belongs to the Respondents’ father. 

It is settled law that in an action for declaration of title to land, the onus is on the defendant who admits in his pleadings that the plaintiff/claimant or his predecessor in title is the original owner of the land in dispute to prove how the original owner became divested of his title and same became vested in him or to someone through whom he claims. DIMASA PROPERTY LTD. V. YUSUF (2009) ALL FWLR (Pt. 467) 3247, OKOYE & ORS V. NWANKWO (2014) 15 NWLR (Pt. 1429) 93, UFOMBA V. AHUCHAOGU (Supra) cited by Respondent’s Counsel.
In MOGEKWU & ANOR V. ADELANA & ORS (2014) LPELR – 23617 – (CA), this Court per Abiru JCA succinctly stated the law, thus:-
“It is trite that where a defendant in an action for declaration of title to land admits in his pleadings that the claimant is the original owner of the land in dispute, the onus is on the defendant to establish a change of ownership by sale or otherwise. There is no onus on the claimant to establish a sale or grant of the land. Thus it is the duty of the defendant to begin to adduce evidence, for it is the defendant who will lose if no more evidence is adduced having regard to the state of the pleadings.”
The Appellant having admitted both in his pleadings and deposition that the Respondents’ predecessor in title was the original owner of the land in dispute, the burden shifted to him to prove the change of ownership of the land from the original owner to himself by sale as pleaded. The learned trial judge rightly shifted the burden to the Appellant to prove the purchase of the disputed land from the Respondents’ father.

In a bid to discharge the onus to prove that he purchased the land from the Respondent’s father, the Appellant called DW2 and DW3, Sama Yaro and Saidu Yaro respectively, and tendered Exhibits D1 & D2 – the Hausa and the English versions of the Sale Agreement between himself and the Respondents’ father. As earlier stated in the introductory part of this judgment, the lower Court held that the Appellant having pleaded and relied on Exhibit D1 cannot be said to have established purchase of the land through the unsigned Exhibits D1 & D2 tendered.

The contention of the Appellants’ Counsel is that the said exhibits having been tendered and admitted without objection by the Respondents’ Counsel and unchallenged in cross-examination, the Respondents’ Counsel cannot raise in this appeal, the question of the admissibility of the documents.

It is the law that the proper time to object to the admissibility of a document, where necessary, is when it is tendered in evidence. See LAWSON-JACK V. SHELL PETROLEUM DEV. CO. (Nig.) LTD (2002) 13 NWLR (Pt. 783) 180 SC. 

It is also the law that where by law a document is inadmissible in evidence, the document cannot be admitted in evidence even where there was no objection or even parties consent to its admission. See ETIM V EKPE (1983) 1SCNLR 120. ALAO V AKANO (2005) 11 NWLR (PT935) 160 SC. In the case of OGIDI V. EGBA (1999) 10 NWLR (Pt.621) 42, the Supreme Court held that where inadmissible evidence is admitted without objection at the trial, failure to object to its admissibility at the trial will not prevent its admissibility from being raised and determined on appeal. Similarly in DAGACI of DERE V. DAGACI of EBWA (2006) 7 NWLR (Pt.979) 382, the Supreme Court held that if a piece of evidence was wrongly received in evidence by the trial Court, an appellate Court has the inherent jurisdiction to exclude it or expunge it from the records notwithstanding that counsel at the trial did not object to the admissibility of that piece of evidence.

On the other hand, where the evidence complained of is not by law rendered inadmissible a party, may by his conduct at the trial be prevented from raising objection to the evidence he allowed in with consent or without objection on appeal. See CHUKWURAAKUNNE V. MATHIAS EKWUNE & ORS. 14 WACA 59.
It is therefore the law that where a document is not admissible per se but its admissibility is subject to certain conditions that had not been fulfilled when it was tendered. its admission in evidence without objection constitutes a waiver of the unfulfilled condition and its admissibility cannot be raised on appeal. See KASSIM V. STATE(SUPRA).

In the instance case, the issue is not one of a challenge to the admissibility of Exhibits D1 & D2 but of the probative value attached to them by the lower Court or that they deserve. The fact that an inadmissible document was admitted in evidence without objection does not entitle the Court to ascribe probative value to it if the document does not fulfil the requirement of the law. 

Admissibility and ascription of probative value to evidence are two different matters. Admissibility is based on relevance while probative value depends not only on relevance but also on credibility and the reasonable inferences that can be drawn in the circumstances to its accuracy. See NYESOM V. PETERSIDE & ORS (2016) 7 NWLR (Pt. 1512) 452.
It is admitted that the power of the trial Court to reject any evidence wrongfully admitted is exercisable in circumstance in which the document is by law absolutely inadmissible – OLUKADE V. ALADE (1976) 10 NSCC 34. The ascription of probative value to evidence is dependant on its credibility and fulfilment of conditions to the ascertainment of its authenticity and the reasonable inference that can be drawn for its accuracy.

It is settled law that for a document to be efficacious and be accorded probative value, the document must be signed. An unsigned document has no efficacy in law, it is a worthless document and cannot be efficacious, so said the Supreme Court in the case of OMEGA BANK (NIG) PLC V. O.B.C LTD (2005) 8 NWLR (Pt. 928) 547.
Mindful of this position of the law, the lower Court in evaluating the case and on the authority of the case of AIKI V. IDOWU (2006) 9 NWLR (Pt. 984) 50, ascribed no probative value to Exhibits D1 & D2. The lower Court was right in doing so. An unsigned document such as Exhibit D1 and D2 purported to be the purchase agreement cannot be relied upon by the Court as the authentic document evidencing the purchase of land. 

A survey of the case law shows that purchase of land is proved by either a purchase receipt or a sale agreement or any other document showing the transaction. It is thus, trite that a party who claims title to land through purchase and seeks a declaration in respect of the land must prove he purchased the land by producing a purchase receipt or an agreement of sale or any document that shows that such a transaction did in fact take place. See OTANMA V. YOU-DUBAGHA (2006) 2 NWLR (Pt. 964) 337, AMINU V. OGUNYEBI (2004) 1 NWLR (Pt. 882) P. 457. ADEPATE V. BABATUNDE (2002) 4 NWLR (PT. 756)96. It is the purchase receipt that evidences that there was an agreement for sale of land and that the consideration for the sale was paid by the purchaser. The document must be duly authenticated to satisfy the Court that it is genuine and duly executed.

Oral evidence can only support but not substitute documentary evidence of purchase/sale transaction. Where as happened in this case the Sale Agreement (Exhibits D1 & D2) pleaded have no probative value, the oral evidence of DW2 and 3 cannot take the place of the defective documentary evidence or prove the purchase.

While it is generally the law that the Court is bound to accept and act on unchallenged evidence, the Court will only act on unchallenged and uncontroverted evidence if the evidence is in itself credible and sufficient to prove the fact it seeks to establish. ADELEKE V. IYANDA (2001) NWLR (Pt. 729) 1, ODULAJA V. HADDAD (1973) 11 SC 357. Where the unchallenged evidence is devoid of probative value or insufficient to prove the fact it seeks to establish, the Court is not bound to accept or act on such evidence.

Therefore contrary to the submission of the Counsel for the Appellant, the lower Court was right in not acting on the oral evidence of the DW2 & DW3 as proof of the purchase of the land in dispute in the absence of the admissible and credible documentary evidence of the sale agreement as pleaded.

Furthermore, the submission by the Appellant’s Counsel and reliance on the case of OJUKWU V. UKACHUKWU (Supra) that evidence of long possession is an indication of ownership is misplaced. The principle only applies where a party is admitted to be in possession of the land by the party claiming ownership of the land and when there is no proof of a better title. 

The law is settled that long possession cannot defeat the claim of the original owner. Long possession merely raises a rebuttable presumption of ownership but where as in the instant case another person establishes a better title with credible evidence, as the Respondents have done, the acts of possession no matter how long cannot ripen to ownership or defeat the title of the true owner.
A right to title is not founded on prescription irrespective of the period of possession. In MOGAJI V. CADBURY NIG. LTD. (1985)2 NWLR (Pt. 7) 393, the Court held.
“A claim for declaration of title is not founded on ownership by presumption ….. unless the origin is valid, the length of possession does not ripen invalid title of a trespasser to a valid ownership title.”

Thus, the basis of the acclaimed long possession by the Appellant being predicated upon the purported purchase of the land which he has failed to prove by credible evidence, long possession cannot inure him.

The learned trial judge was therefore right in holding that the Appellant having failed to discharge the burden of proof of purchase of the farmland in dispute which shifted to him, the plaintiffs (Respondents) were entitled to judgment having established by traditional evidence how they came to possess and owned the farmland in dispute. I fully endorse the finding and conclusion.

Accordingly, this issue is resolved against the Appellant as I find no merit in the appeal. Same is entitled to be and is dismissed by me. The judgment of the lower Court delivered on 18th May, 2020 is affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother, A.A, WAMBAI, JCA. My brother in the leading judgment have thoroughly reviewed the pleadings and evidence in support thereof by the parties before the lower Court and reached the inevitable conclusion that this appeal is bereft of merit. I agree in toto with the finding and conclusion reached by my learned brother in the leading judgment and adopt same as mine. I also dismiss the appeal and affirm the decision of the Court delivered on 18/5/2020 in Suit No. KTH/MF/12/2019.

Appearances:

B. Y Gambo, Esq. For Appellant(s)

Panshak K. Audu, Esq. For Respondent(s)