ALH. SANI MANI & ORS v. ALH. SHEHU M. SHANONO(2005)

ALH. SANI MANI & ORS v. ALH. SHEHU M. SHANONO

(2005)LCN/1858(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 14th day of December, 2005

CA/K/120/02

 

JUSTICES

BABA ALKALI BA’ABA   Justice of The Court of Appeal of Nigeria

ABUBAKAR ABDULKADIR JEGA   Justice of The Court of Appeal of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN   Justice of The Court of Appeal of Nigeria

Between

 

ALH. SANI MANI & ORS Appellant(s)

AND

ALH. SHEHU M. SHANONO Respondent(s)

 

KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court in suit No. K/268/96, delivered on the 15th day of June, 2001, in favour of the respondent herein.
The respondent, who was the plaintiff before the trial court filed a writ of summons and statement of claim dated 7th May, 1996, seeking the following reliefs against the present appellants who were the defendants:
“1. A declaration that the purported inclusion of the plot covered by certificate of occupancy No. KN.5458 situate at and known as plot No. 15, Gwarzo Trading plots in the Estate of late Mani by the 1st and 2nd defendants is illegal, null and void.
2. A declaration that the purported sale of the said plot of land to the 3rd defendant by the 1st and 2nd defendants is illegal, null and void.
3. A declaration that the plaintiff is still the rightful owner of plot No. 15, Gwarzo Trading plots covered by certificate of occupancy No. KN.5458 and is therefore entitled to peaceful and undisturbed possession.
4. An order of perpetual injunction restraining the defendants including the entire estate of late Mani from trespassing on the said plot of land and from doing any act prejudicial to the interest of the plaintiff.”
The appellants filed a 15-paragraph statement of defence and joined issues with the plaintiff on his claims. Both parties led evidence at the trial and tendered exhibits. At the conclusion of the trial, the court entered judgment in favour of the respondent and granted all his reliefs.
The appellants being dissatisfied with the judgment have appealed to this court by their notice of appeal dated 26th June, 2001 and filed the same day, at pages 51-54 of the record, on four grounds.
The four grounds without their particulars are as follows:
“1. The learned trial Judge erred in law and arrived at a wrong conclusion by conferring title to the land in dispute on the respondent thereby failing to dismiss the respondent’s suit notwithstanding the respondent’s failure to prove title superior to that of the appellant.
2. The learned trial Judge erred in law and arrived at a wrong decision by wrongly presuming the validity of the certificate of occupancy relied upon by the respondent in proof of his title to the land in dispute when the respondent had not established its validity, the extent of the grant covered by it and the manner through which his grantor acquired title to the land in dispute.
3. The learned trial Judge erred in law and arrived at a wrong conclusion by wrongly presuming that the land in dispute is well known to both parties when the appellants have indeed vigorously raised the issue of the identity of the land and challenged the respondent’s witnesses on it under cross-examination.
4. The learned trial Judge erred in law and arrived at a wrong conclusion by conferring title to the land on the respondent that failed to displace the legal presumption which vests ownership of the land in dispute on the person in possession (the appellant) in this case, and no superior title had been established by the respondent.”
The brief facts that gave rise to this appeal as can be gathered from the printed record are as follows:
The respondent, Alhaji Shehu Mohammed Shanono who was the plaintiff at the trial court applied to the Kano State Government for a plot of land. He was granted a plot of land at Gwarzo in Gwarzo Local Government, which is covered by certificate of occupancy No. KN5458 issued in 1980. In 1981, he applied for and was granted building approval by the Urban Development Board, Kano State. The respondent who testified as PW3 stated that work on the land stopped when the contractor he engaged died and that the 1st and 2nd appellants subsequently encroached on his land and sold it to the 3rd appellant.
On their part, the appellants as defendants testified that they inherited the land in dispute from their late father who cleared the land 28-30 years earlier and farmed on it without any disturbance. They testified that after his demise the Upper Area Court, Gwarzo distributed the said plot of land to them as part of his estate.
In accordance with the rules of this court, both parties filed and exchanged briefs of argument. The appellant’s brief is undated but was filed on 17th April, 2002. The respondent’s brief dated 21st February, 2003 was filed with the leave of this court on 15th April, 2003.
In their brief of argument, the appellants submitted a sole issue for determination in his appeal thus:
“Whether the trial High Court Judge was right in refusing to dismiss the respondent’s claim for title to the plot of land, regard being had to the legal presumption that vests title on the appellant, respondent’s failure to establish the validity of the certificate of occupancy upon which his alleged title is based, the respondent’s failure to establish the manner through which his grantor acquired the title purportedly vested on him, the respondent’s failure to establish the identity of the plot of land by evidence and the weight of evidence.” (grounds 1, 2, 3 and 4 of the notice of appeal).
In the respondent’s brief, two issues were formulated for the determination of this appeal:
“1. Did the learned trial Judge rightly confer title on the respondent or not on the strength of exhibit ‘A’.
2. Whether the identity of the land in dispute was in issue and if so whether the burden to prove the identity of the land in dispute was not adequately discharged by the respondent.”
At the hearing of the appeal, Mr. Abubakar Malami, learned Counsel for the appellants adopted the appellants’ brief and urged us to allow the appeal. Mr. M. B. Adoke, learned Counsel for the respondent adopted the respondent’s brief and urged us to dismiss the appeal with substantial costs.
Looking at the sole issue formulated by the appellants, I find it to be inelegantly drafted and rather unwieldy. The respondent’s issues are clearer and more straightforward. I shall therefore consider and resolve the two issues formulated by the respondent in determining this appeal. The first issue is however modified slightly to read:
“Whether the learned trial Judge rightly conferred title on the respondent on the strength of exhibit ‘A’.
With regard to the first issue for determination, it was contended on behalf of the appellants that having challenged paragraph 4 of the statement of claim by paragraphs 4 and 12 of their statement of defence, and having led unchallenged evidence at the trial to the effect that they were in possession of the land in dispute by inheritance of same from their late father who had farmed undisturbed thereon for 28-30 years, the onus was on the respondent to prove that they were not the owners of the land. Section 146 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria (L.EN.) 1990 was relied upon to support the contention that the appellants were presumed to be the owners.
It was argued that once a party pleads and traces the root of his title in an action for declaration of title to land to a particular person or source and his ownership is challenged, that party must not only establish his title to such land but must also satisfy the court as to the title of the person or source from whom he claims. It was submitted further that the plaintiff in such circumstances, must satisfy the court by credible evidence as to the devolution of title in respect of the land down to himself. Learned Counsel for the appellants submitted that the respondent failed to lead evidence to establish the title of the Government from whom he claimed title and also failed to show that the presumed title of the appellants had been revoked. In support of this contention, he cited a list of eleven cases inter alia Eso v. Adeyemi (1994) 4 NWLR (Pt. 340) 558 para. G-H; Azi v. Registered Trustees of Evangelical Churches (1991) 6 NWLR (Pt. 195) 111; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745.
He however failed to relate the facts or ratio decidendi of any of the cited cases with the facts of this case. Nevertheless, I shall consider some of the authorities where relevant in the course of the judgment.
It was submitted that under the Land Use Act Cap. 202 Laws of the Federation of Nigeria, 1990, a certificate of occupancy is not conclusive evidence of any right, interest or valid title of land in favour of the grantee but at best only prima facie evidence of such right, interest or title, which could be rendered invalid, null and void if successfully challenged. Reliance was placed on the case of Lababedi v. Lagos Metal Industries (Nig.) Ltd. (1973) NSCC 1 at 6. It was contended that in the present case, the respondent failed to prove a better title than the appellants and that his title ought to have been deemed defective and discountenanced as invalid. Learned counsel cited the following cases in support Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 at 540.
In response to the first issue, learned Counsel for the respondent submitted that in an action for declaration of title, the burden of proof is on the plaintiff and that the standard of proof is minimal. He relied on Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1; (2001) 6 SCNJ 101 at 122. He referred to the evidence of the respondent and his witnesses to the effect that he was granted the land by the Kano State Government and was issued certificate of occupancy No. 5458 (exhibit A). He submitted that section 114(1) of the Evidence Act presumes the genuineness of exhibit A. He submitted that all lands in the State are vested in the governor of that state by virtue of the Land Tenure Law Cap. 59 Laws of Northern Nigeria, 1963, under which exhibit A was granted and sections 2(1),4 and 5 of the Land Use Act Cap. 202 L.F.N. 1990. He submitted that exhibit A was granted in exercise of powers conferred by section 6 of the Land Tenure Law and that it is prima facie evidence of title and possession. He referred to Registered Trustees of Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514.
Learned Counsel submitted that having regard to the provisions of sections 4, 5 and 44(1) of the Land Tenure Law, the burden was on the appellants to prove how their father acquired title to the land. He also referred to section 136 of the Evidence Act and submitted that the appellants had failed woefully in this regard. He noted further that the appellants’ evidence that their late father acquired the land by clearing it is not supported by their pleadings and therefore goes to no issue. He submitted that the evidence adduced in that regard was rightly discountenanced by the learned trial Judge. He relied on the following cases: Ukeagbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 156 and Moses Okhuarobo v. Aigbe (2002) 9 NWLR (Pt.771) 657; (2002) 3 SCNJ 109. He submitted that it was not sufficient for the appellants to merely plead vaguely that they and their predecessor in title owned and were in possession of the land, but were bound to prove who founded the land and how it was founded. He relied on Umeano Achiakpa v. Josiah Nduka (2001) 14 NWLR (Pt.734) 623; (2001) 7 SCNJ 585 at 610. He also relied on Order 25 rule 6(3) of the Kano State High Court (Civil Procedure) Rules, 1988.
Finally, learned Counsel submitted that the complaint of the appellants at page 8 of their brief against the approach of the learned trial Judge to the evaluation of evidence ought to be discountenanced as it is not covered by any ground of appeal. He relied on Achiakpa v. Nduka (supra) at 617 and Adeleke v. Iyanda (supra).
In an action for declaration of title to land, it is well settled that the burden of proof lies on the party seeking the declaration in his favour. He is bound to succeed on the strength of his case and not on the weakness of the defence, if any.     In the case of Idundun v. Okumagba (1976) 9-10 SC 227 the Supreme Court laid down the methods by which a party can establish his title to land, namely:
1. by traditional evidence;
2. by production of documents of title which are duly authenticated;
3. by acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it;
4. by acts of long possession and enjoyment of the land; or
5. 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.
It was held in Abel Nkado & Ors. v. Ozulike Obiano & Anor (1997) 5 NWLR (Pt.503) 31; (1997) 5 SCNJ 33 that the onus on the plaintiff is discharged if he establishes anyone of the five methods.
From the evidence of the respondent at the trial court, he relied on the second method enumerated above, that is the production of his title document: certificate of occupancy No. KN 5458 issued to him by the Kano State Government. This was tendered as exhibit A in support of paragraph 1 of the statement of claim. PW 1 and PW2 also testified on his behalf and stated that they were aware that the land in dispute belonged to the respondent.
Section 137(1) and (2) of the Evidence Act provides:
“(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”
From the above provisions of the Evidence Act, it is clear that the plaintiff must show a prima facie case before the need to consider the case put up by the defence will arise. See Benneth Ude Agu v. Maxwell Nnadi (2002) 18 NWLR (Pt.798) 103; (2002) 12 SCNJ 238.
Through the oral testimony of the respondent and his witnesses and with the tendering of exhibit A, the respondent had made out a prima facie case in support of his claim. It is trite that a certificate of occupancy or any other document of title is prima facie evidence of title, but will give way to a better title. See Emmanuel Ilona v. Sunday Idakwo & Anor. (2003) 11 NWLR (Pt.830) 53; (2003) 5 SCNJ 330. The appellants in their statement of defence had challenged the respondent’s title on the grounds that they are the rightful owners thereof through inheritance and on the basis of possession spanning a period of 28-30 years. The respondent having made out a prima facie case in support of his claim, the next step was for the court to consider the defence and determine whether a case had been made out in support thereof.
In the case of Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1; (2001) 6 SC 18 at 33 Uwaifo, JSC relied on an earlier decision of the Supreme Court in Kaiyaoja v. Egunla (1974) NSCC (Vol. 9) 606 at 609 wherein Ibekwe, JCS stated inter alia:
“The burden of proof takes cognisance, of course, of the imaginary scale to determine to what side the evidence tilts the scale. Where the plaintiff has adduced admissible evidence, which is satisfactory in the con of the case, and none is available from the defendant, the case will be decided upon a minimal proof. This makes the burden lighter.”
The main issue to be determined therefore is, whether the appellants adduced sufficient evidence at the trial to successfully challenge the respondent’s claims. In paragraphs 4, 10 and 11 of the statement of defence at pages 12-13 of the printed record they averred as follows:
4. The defendants deny paragraph 4 of the statement of claim and avers (sic) further that the plaintiff have (sic) never own (sic) the said land as the same belong to their parents and same was inherited by 1st and 2nd defendants and other.. of Mani from their late father after distribution of the estate of their father at UAC Gwarzo in suit No. CV/90/94 and writ of possession was issued to all heirs after the distribution. The record of proceedings and writ of possession are pleaded and same will be relied upon at the hearing of this suit.
10. The defendant further avers that the certificate of occupancy which the plaintiff want to rely on if any, was fraudulently obtained by him using his position as the ex-chairman of the Gwarzo Local Government as well as his influence as a commissioner during Alh. Abubakar Rimi administration and the same is to no effect as then (sic) are still in lawful and legal occupation.
11. The defendant denies paragraph 7 and 8 and avers that the land belong to their father and it was in his peaceful possession until his death in 1993 and that when their father died, the land was posted to them and was accordingly distributed to them by UAC Gwarzo, in accordance with Islamic law of inheritance in suite No.CY/90/94.”
In support of their case, the appellants tendered exhibit C, a writ of possession for the distribution of the estate of their late father. It is pertinent to note that the appellants did not file a counter claim. Furthermore, although they alleged fraud in paragraph 10 of their statement of defence they did not lead any evidence to support the allegation.
At page 4 of the appellant’s brief, learned counsel for the appellants referred to the evidence of DW 1, Alhaji Sani Mani (the 1st appellant herein) at page 33 of the printed record as follows:
“I inherited the farmland from my father, Alhaji Mani Umaru. My father came into possession of the land because it was a forest, a virgin land. My father is now dead. My father clear (sic) the forest and turned it to a farm for about 28-30 years. From the time my father cleared the forest and entered into possession to the present day nobody claimed any possession right over the farm land.”
Learned Counsel submitted that DW1’s evidence was unchallenged and was not discredited through cross-examination. He submitted that the respondent’s title had been validly challenged and that the only way he could succeed against the appellants in light of their evidence of possession was by proving the title of his grantor, i.e. by proving how the Kano State Government acquired the land before it was granted to him and whether the appellants’ title was revoked.
With regard to the evidence of DW1 reproduced above, the learned trial Judge had this to say in his judgment at page 43 of the record:
“In the case before the court, the plaintiff tendered exhibit A, which is the certificate of occupancy issued to him by the Kano State Government in respect of the land. The defendants on the other hand tendered exhibit C, which is a writ of possession for the distribution of the estate of their late father. However the defendants have not established anything before the court that gave their father title to the land, which was distributed to them.”
I have examined all the paragraphs of the statement of defence, particularly paragraphs 4, 10 and 11 thereof. There is no fact pleaded regarding how the appellants’ father acquired the land.
I agree with learned Counsel to the respondent that the oral evidence of DW1 to the effect that the land was virgin land and that their father cleared it 28-30 years earlier and farmed on it without hindrance until he died was not pleaded and therefore goes to no issue. The position of the law is that even where such evidence is inadvertently admitted it would be expunged. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 156 A-B; Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) 163. It follows that the appellants did not lead any credible evidence before the trial court to show how their father acquired title to the land, which was distributed among his heirs or to prove that they were entitled to the customary right of occupancy in respect of the land.
I have carefully considered the authorities cited by learned Counsel for the appellants regarding the burden in this matter. It is their contention that notwithstanding the issuance of a certificate of occupancy in his favour, the burden lies on the respondent to prove that they were validly and lawfully divested of their ownership of the land in dispute and that to do this the respondent ought to go beyond the certificate of occupancy and trace the root of the title of the Kano State Government.
In the case of Onubruchere v. Esegine & Anor: (1986) 1 NWLR (Pt.19) 799; (1986) 2 SC 385, relied upon by learned Counsel for the appellants, the plaintiffs at the trial court pleaded that their ancestor was the original founder and owner of the land in dispute but that a portion of it was pledged to the defendants’ ancestors. They contended that notwithstanding the pledge they remained owners of the land. The defendants in their pleading admitted the plaintiffs’ original ownership but contended that the land was never pledged to their ancestors, but that there was an outright customary sale thereof, which extinguished the plaintiffs’ radical title. The learned trial Judge and the Court of Appeal held that the onus was on the plaintiffs to prove the pledge in accordance with Urhobo customary land and as this had not been done, dismissed the plaintiffs’ case. The Supreme Court held, allowing the appeal and setting aside the judgments of the Court of Appeal and the court of first instance, that the onus of proof on the pleadings was wrongly placed on the plaintiffs. The court was of the view that once the defendants had admitted that the plaintiffs were in possession but claimed that the plaintiffs had sold the land to them, the burden of proof shifted to the defendants to show that the original owners had extinguished their title. His Lordship, Oputa, JSC had this to say at pages 400 lines 28 to 401 line 5.
“To hold otherwise will be to “overlook the established rule that once it is proved (here it was admitted by the defendants and found by the trial court) that the original ownership of the property is in a party the burden of proving that the party has been divested of the ownership rests upon the other party” – per Coker, JSC in Bello Isiha & Ors. v. J. T. Hanson & Anor. (1967) 1 All NLR 8. The same principle was applied in the case of Samson Ochonma v. Asirirm Unosi (1965) NMLR 321.”
From the above decision, it is clear that the original ownership of the property by a party must be proved before the burden of proving that the party has been divested of it by he party now claiming to be entitled to a declaration in his favour would arise. Thus, in the instant case, in the face of the prima facie evidence adduced by the respondent, the appellants had the burden of proving their original ownership of the land. If they were able to do so, the burden would again shift to the respondent to prove that such title had been extinguished. The appellants in this case failed to discharge that burden.
In the case of Eso v. Adeyemi (supra), cited by learned Counsel for the appellants this court rightly held per Mukhtar, JCA (as he then was) at page 573 G-H that,
“a person in whose name a certificate of occupancy has been issued can only validly hold unto it if he can show that he legitimately acquired the property …. He should be able to show that the certificate was issued in his favour after he had properly acquired the property through the persons who were the holders.”
In the instant case, the respondent led prima facie evidence to show that he validly acquired the property through the grant thereof to him by the Kano State Government by virtue of exhibit A. It has been noted earlier in this judgment that a certificate of occupancy is only prima facie evidence of title. Exhibit A was issued pursuant to the Land Tenure Law Cap 59 Laws of the Northern Nigeria, 1963. Section 6(3) of the Law provides:
“Upon the grant of a right of occupancy under the provisions of subsection (1) all existing rights to the use and occupation of the land which is the subject of the right of occupancy shall be extinguished.” (italics supplied for emphasis)
Thus, where it is proved that the customary right of occupancy resides in another and such right has not been extinguished the certificate of occupancy is liable to be declared invalid. See Azi v. Registered Trustees of the Evangelical Churches of West Africa (1991) 6 NWLR (Pt. 195) 111. The existence of a customary right of occupancy at the time of the issuance of the certificate of occupancy must be established before the court. In the case of Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 529 B-C, the respondent was able to satisfy the court not only that she was the customary owner of the land but that she was also in possession and had not received any notice of intention to dispossess her of the land as provided for under section 34(5) of the Law.
Having placed the evidence led by both parties in this case on an imaginary scale, I am of the view that he learned trial Judge came to the right conclusion that having regard to the competing claims, the appellants failed to adduce any evidence to successfully challenge the respondent’s title to the land in dispute. The first issue is accordingly resolved in favour of the respondent.
The second issue for determination in this appeal is whether the identity of the land in dispute was in issue and if so, whether the burden to prove the identity of the land in dispute was not adequately discharged by the respondent.
Learned Counsel for the appellants argued that the appellants joined issue with the respondent on the identity of the land in dispute in their pleading and during the cross-examination of his witnesses. He referred to paragraphs 7 and 8 of the statement of defence at page 13 of the printed record. He also referred to the evidence of PW1 under cross-examination at page 25 of the printed record, where he testified that he did not remember the demarcation of the land and the evidence of PW2 at page 26 of the record, where he testified that he did not know the boundaries of the subject matter of the dispute. He submitted that it was not sufficient to merely tender plan showing the features of the land in dispute. He contended that the party seeking a declaration of title in his favour must give credible evidence linking the ownership of the disputed land with the features on plan tendered. He relied on Iriri v. Erhurhobara (1999) 2 NWLR (Pt.173) 252: (1991) 3 SCNJ 12.
In the respondent’s brief, learned Counsel for the respondent submitted that when the pleadings of the parties are read as a whole, it would be clear that the identity of the land was not in issue. He stated that paragraphs 7 and 8 of the statement of defence merely narrate what transpired before the Upper Area Court Gwarzo in suit No. CV/337/95. He submitted further that in any event, no evidence was led in support of paragraphs 7 and 8 at the trial. He was of the view that even if there was a dispute as to the identity of the land, the respondent had discharged his duty to prove the identity through the sketch map annexed to exhibit A. He relied on the case of Akinterinwa v. Oladunjoye (2000) NWLR (Pt.659) 92; (2002) 4 SCNJ 149 at 171 and 172.
In order to determine whether the identity of the land in dispute was in issue between the parties, it is necessary to produce some of the relevant paragraphs of the pleadings on either side. Paragraphs 3, 4, 5 and 7 of the statement of claim and paragraphs 3, 4, 7, 8 and 11 of the statement of defence read as follows:
Statement of Claim (pages 7-8 of the record)
“3. The plot of land covered by certificate of occupancy No. KN5458 is situate in Gwarzo Town within the jurisdiction of this Honourable Court.
4. The plaintiff avers that he owns the plot of land covered by certificate of occupancy No KN5458 same being granted to him by the Kano State Governor sometime in.
5. The plaintiff avers that he duly processed the issuance of the certificate of occupancy, which was given to him sometime in 1980. The plaintiff hereby pleads the certificate of occupancy No. KN 5458 bearing his name dated 23rd day of December, 1980.
7. The plaintiff has been in peaceful possession of (sic) plot of land since the time he was granted same by the government, until recently, when the 1st and 2nd defendant and the rest of the heirs of one Alh. Mani (deceased) included the plot of land in the estate of the deceased father and led the Upper Area Court, Gwarzo into distributing the plaintiff’s plot of land along with the deceased Mani’s estate. The plaintiff hereby pleads the Upper Area Court, Gwarzo’s record of proceeding in the case of Alhaji Sani A. & Ahmadu Gwarzo v. Alh. Gamba Zanga Gwarza in suit NO. CV/90/94 together with the English translated version.”
Statement of Defence (pages 12-13 of the record):
“3. The defendant denies paragraph 3 of the statement of claim and avers further that the land in dispute to their knowledge has no number or certificate as the same was passed to them through inheritance and since then they have never requested for the issuance of any certificate from the local or state government.
4 The defendant deny paragraph 4 of the statement of claim and avers further that the plaintiff have never owned the said land as the same belong to their parents and same was inherited by 1st and 2nd defendant and other… of Mani from their late father after the distribution of the estate of their father at UAC Gwarzo in suit No. CV/90/94 and writ of possession was issued to all heirs after the distribution. The record of proceedings and writ of possession are pleaded and same will be relied upon at the hearing of this suit.
7. The defendant avers that at the time their late father challenged the acquisition of the land without any compensation and since then the matter went to rest and they continued using their land without any hindrance from anybody until sometimes in 1995, after the death of their late father when the plaintiff through his brother, A. Sani instructed (sic) an action at UAC Gwarzo in case No. CV/337/95 on the issue of the land. The said hearing notice is hereby pleaded and same be relied upon at the hearing of this suit.
8. The (sic) further state that when the matter was mentioned, the plaintiff through his representative was unable to identify the land thereafter they withdrew the action and filed this case.
11. The defendant denies paragraphs 7 and 8 and avers that the land belong to their father and it was in his peaceful possession until his death in 1993 and that when their father died the land posted to them and was accordingly distributed to them by UAC Gwarzo in accordance with Islamic Law of inheritance in suit No. CV/90/94.”
It is evident from the pleadings reproduced above that the identity of the land in dispute was clearly known by both parties and no issue was joined on the pleadings in respect thereof. I agree with learned Counsel for the respondent that the pleading in paragraphs 7 and 8 of the statement of defence was a mere narration of what transpired in a suit before the Upper Area Court Gwarzo. The identity of the land not being in dispute it follows that there was no burden on the respondent to establish it. See Ogun v. Akinyelu & Ors. (2004) 18 NWLR (Pt.905) 362; (2004) 12 SCNJ 196.
I therefore resolve this issue in favour of the respondent.
There is no ground of appeal in respect of the argument contained at page 8 of the appellants’ brief, regarding the approach of the learned trial Judge to the evaluation of evidence. The submissions therein therefore go to no issue and are accordingly discountenanced. See Achiakpa v. Nduka (supra) also reported in (2001) 7 SC (Pt. 11) 125 at 146.
In conclusion, I find no merit in this appeal, which I hereby dismiss. The judgment of the Kano State High Court delivered on 15th June, 2001, by Hon. Justice Y. Hassan in suit No. K/286/96 is hereby affirmed. There shall be N5,000.00 costs in favour of the respondent against the appellants.

BA’ABA, J.C.A.: I have read in draft, the judgment of my learned brother, Kekere-Ekun, JCA, just delivered in this appeal and I entirely agree with her that there is no merit in the appeal and it ought to be dismissed.
In civil case, the general rule is that the burden of proof rests upon that party, whether plaintiff or defendant who substantially asserts the affirmative before evidence is gone into. This rule is clearly stated by Eso, JSC in Tewogbade v. Akande (1968) NMLR 404 at 408 thus:
“The position therefore is this, in a civil case, the burden of proof lies on the person who will fail, assuming no evidence has been adduced on either side. Further, in respect of particular fact, this burden rests on the party against whom judgment will be given if no evidence were produced in respect of those facts. Once the party produced the evidence that will satisfy a jury then the burden shifts on the party against whom judgment will be given if no more evidence were adduced.”
See Ejemruvwo Oyovbiare & Anor. v. Ted Omamurhomu (1999) 10 NWLR (Pt. 621) 23 at 34-35.

Evidence which is unchallenged through cross-examination not controverted by other evidence and is not by itself incredible is qualified to be accepted and acted upon by the trial court. See Omoregbe v. Lawani (1980) 3-4 SC 108 at 117; Egbunike v. African Continental Bank Ltd. (1995) 2 NWLR (Pt. 375) 34; Broadline Enterprises Ltd. v. Monterey Maritime Corp (1995) 9 NWLR (Pt. 417) 1 at 27 and Dennis lvienagbor v. Henry Osato Bazuaye & Anor. (1999) 9 NWLR (Pt. 620) 552 at 558-559. In the instant appeal, the respondent at the trial court led evidence in support of his claim of his title of the land in dispute which remained unchallenged. The learned trial Judge was right in my view in accepting and relying on the respondent’s evidence in his judgment.
It is the law that a certificate of occupancy properly issued by a competent authority raises a presumption that the holder is the owner in exclusive possession of the land in respect thereof. The certificate also raises a presumption that at that time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person has a better title to the land before the issuance of the certificate of occupancy, then the court can revoke it. See Haruna v. Ojukwu (1991) 7 NWLR (Pt. 202) 207, Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254-269.

Where a trial court makes finding of facts which are in no way perverse, but were sufficiently justified from the pleadings and evidence, it is not the duty of an appellate court to interfere with the finding of facts made by the trial court which had the advantage of hearing and seeing witness testify so long as those findings are reasonably supported by evidence. See Okolo v. Uzoka (1978) 4 SC 77 at 86 and Ebba v. Ogodo (1984) 1 SCNLR 372.
For these and more fuller reasons contained in the leading judgment in which my learned brother meticulously resolved all the issues I too, dismiss the appeal. I abide by the consequential orders, including that on costs.

JEGA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Kekere-Ekun, JCA, just delivered.
She has carefully set out the facts of the case and all the issues raised in the appeal have been extensively discussed, considered and resolved.
After a very careful examination of these issues, I have no difficulty in corning to the same conclusion that the appeal lacks merit. I also dismiss the appeal with costs as assessed in the lead judgment.

Appeal dismissed.

 

Appearances

Abubakar Malami (with him, M.I. Musa)For Appellant

 

AND

M.B. AdokeFor Respondent

 

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