ALHAJI ABACHA MOHAMMED KOLO v. ALHAJI MOHAMMED LAWAN
(2010)LCN/3775(CA)
(2010) LPELR-4406(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of May, 2010
CA/J/113/2009
RATIO
LAND LAW: WAYS OF ESTABLISHING TITLE TO LAND
There are five ways of proving or establishing title to or ownership of land. These are by:-
(1) Traditional evidence:
(2) Production of documents of title duly authenticated in the sense that their due execution must be proved;
(3) By positive acts of ownership extending over a sufficient length of time;
(4) By acts of long possession and enjoyment of the land;
(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.
The law is that the establishment of one of the five ways is sufficient proof of ownership.
Ayoola vs. Odofin (1984) 11 SC 120; Ewo vs. Ani (2004) 17 NSCQR 36; Ndukuba vs. Izundu (2007) 1 NWLR (Pt.1016) 432CA; Adanyi vs. Anwase (2006) 12 NWLR (Pt.993) 183 CA; Nkado vs. Obiano (1997) 5 NWLR (Pt.503) 31 at 34 SC; Nkwo vs. Iboe (1998) 7 NWLR (Pt.558) 354 SC; Chukwu vs. Diala (1999) 6 NWLR (Pt.608) 674 CA; Inwelegbu vs. Ezeani (1999) 12 NWLR (Pt.630) 266 CA; Adesanya vs. Adrounmu (2000) 6 SC (Part II) 18; Adeosun vs. Jibesin (2001) 14 WRN 106 at 108 CA. PER UZO NDUKWE-ANYANWU, J.C.A
PLEADINGS: NATURE OF TRAVERSE IN PLEADINGS
A traverse is a denial by a party to an averment by another party as to facts raised in pleadings between them. The effect of a traverse is to cast upon the Plaintiff, the burden of proving the allegations denied. A proper traverse is a complete and sufficient denial, which has the effect of joining issues between the parties. Okoromaka vs. Odiri (1995) 7 NWLR Pt 408 Pg 411, UBN PLC vs. SCPOK (Nig.) Ltd. (1998) 12 NWLR Pt 578 Pg 439.
What is essential is that the Defendant’s case is in material particulars, in conflict with the Plaintiff’s case and thus puts the different material’ averments in issue. Audu vs. Guta (2004) 4 NWLR Pt 864 Pg 463, Afao vs. Alao (1986) 12, SC Pg 193, Ayansina vs. Co-operative Bank Ltd (1994) 5 NWLR Pt 374 Pg 742; PER UZO NDUKWE-ANYANWU, J.C.A
LAND LAW: TITLE TO LAND; BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE
In a claim for declaration of title to land, a Plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the Defendant’s case. Otanma vs. Youdubagha (2006) NWLR Pt. 964 Pg 337. Dike vs. Okoloedo (1999) 10 NWLR Pt. 623 Pg 359. Tukuru vs. Sabi (2005) 3 NWLR Pt. 913 Pg 544. Onisaodu vs. Elewuju (2006) 2 NWLR Pt. 998 Pg 517. PER UZO NDUKWE-ANYANWU, J.C.A
WORDS AND PHRASES: MEANING OF EVIDENCE
The Black Law Dictionary describes Evidence as-
“any specie of proof or probative matter legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects etc., for the purpose of inducing belief in the minds of the Court or jury as to their contention.” PER UZO NDUKWE-ANYANWU, J.C.A
EVIDENCE: GUIDING PRINCIPLES IN THE EVALUATION OF EVIDENCE
The appraisal of evidence and ascription of probative value is the primary duty of the trial Court and where the issue turns on credibility of witnesses, the opinion of the trial Judge must be respected. Osolu vs. Osulu (2003) 11 NWLR Pt. 832 Pg 608.
In the evaluation of evidence, the trial Courts are guided by the following principles, namely:
(a) Whether the evidence is admissible;
(b) Whether the evidence is relevant;
(c) Whether the evidence is credible;
(d) Whether the evidence is conclusive and;
(e) Whether the evidence is more probable than that given by the other party.
Mogaji v. Odofin (1978) 4 SC 91, Akad Industries Ltd vs. Olubode (2004) 4 NWLR Pt. 862 Pg 1. PER UZO NDUKWE-ANYANWU, J.C.A
EVIDENCE: BURDEN OF PROOF; WHAT IS THE BURDEN OF PROOF IN CIVIL CASES
In a civil case, the Court’s decision is based on the balance of probabilities or preponderance of evidence. For the Court to achieve this it must place on an imaginary scale all evidence adduced by both parties before coming to its decision. The Court must put the evidence adduced by the Plaintiff on one side of the scale and that by the Defendant on the other side of the scale and weigh them together. The Court will thereafter determine which is heavier not by the number of witnesses called by each, party but by the quality or probative value of the testimony of those witnesses. Adebayo vs. Adusei (2004) 4 NWLR (Pt.862) Pg 44. Olushile vs. Maiduguri Metro Council (2004) 4 NWLR Pt. 863 Pg 290, Fagbenro vs. Arobadi (2006) 7 NWLR Pt. 978 P9174. PER UZO NDUKWE-ANYANWU, J.C.A
JUSTICE
ZAINAB ADAMU BULKACHUWAJ ustice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
Between
ALHAJI ABACHA MOHAMMED KOLO Appellant(s)
AND
ALHAJI MOHAMMED LAWANRespondent(s)
UZO NDUKWE-ANYANWU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State delivered on 26th September, 2008. In the judgment, the learned trial Judge dismissed the Plaintiff’s claims.
Being dissatisfied the plaintiff now Appellant appealed against the said judgment. The Appellant filed his notice and 5 Grounds of Appeal. On the 6th October, 2009, the Appellant filed the Appellant’s brief which counsel adopted. In it, counsel M.E. Oru Esquire formulated 4 issues namely:
(1) Whether or not, the Plaintiff/Appellant, from the pleadings and negligence before the trial Court has proved a better title to the land in dispute to be entitled to the reliefs claimed (Ground of Appeal No: 1).
(2) Whether or not the learned trial Judge was right when he held that the title of the respondent to the land in dispute was not revoked in 1995 before the grant to the appellant when the issue of ‘revocation’ was not pleaded before the Court (Ground of Appeal No.2)
(3) Whether or not the learned trial Judge was right in law when he failed to review, evaluate, properly evaluate and consider the pleadings, evidence, onus of proof and in particular the evidence of ownership, unencumbered developments, possession, use and enjoyment of the land in dispute (Grounds of Appeal Nos. 3 and 4).
(4) Whether the judgment was in the light of the circumstance of this case against the weight of evidence (Ground of Appeal No.5).
The Respondent filed his Respondent’s brief on 16th February, 2010 but deemed properly filed and served on 18th February, 2010. In it, the Respondent’s counsel K.J. Ntafa formulated 3 issues for determination as follows:
(i) Whether the respondent herein has an existing right over the land in dispute before the issuance of the Certificate of Occupancy No: BO/12336 (Exhibit ‘C’) to the appellant by the Borno State Government in 1996 (Ground 1).
(ii) Whether the, Appellant was validly and lawfully issued with the said Certificate of Occupancy No. BO/12336 by Borno State Government over the land in dispute (Grounds 2 and 3).
(iii) Whether the trial High Court properly evaluated and considered all the issues and evidence before him in arriving at its decision. (Grounds 4 and 5).
Issues 1 and 2 in the Appellant’s brief are in pari material with issues 1 and 2 in the Respondent’s brief. Issues 3 and 4 are also captured in the Respondent’s issue 3.
In assessing these issues I will adopt the issues as formulated by the Appellant. I will however deal with issues 1 and 2 on title to land together and issues 3 and 4 together since it is on the evaluation of evidence by the trial Judge.
ISSUES ONE AND TWO
(1) Whether or not the Plaintiff/Appellant, from the pleadings and evidence before the trial Court has proved a better title to the land in dispute to be entitled to the reliefs claimed (Ground of Appeal No. 1).
(2) Whether or not the learned trial Judge was right when he held that the title of the respondent to the land in dispute was not revoked in 1995 before the grant to the appellant when the issue of ‘revocation’ was not pleaded before the Court (Ground of Appeal No.2).
Learned counsel M.E. Oru Esquire for the Appellant stated that the Appellant as Plaintiff pleaded his root of title to be the grant of Certificate of Occupancy in 1996 by the Borno State Government. In proof of this title, the Appellant/Plaintiff tendered in evidence-
Exhibit A – File No. BO/12336
Exhibit B – Grand of Right of Occupancy No. BO/12336
Exhibit C – Certificate of Occupancy No. B0/12336
Exhibit D – Record of Proceeding of case No. M/172/06
Exhibit E – Judgment of Court of Appeal in CA/J/17/2007 dated 17th May, 2007.
The Appellant also called 3 Prosecution Witnesses in proof of his case in the lower Court. The learned Appellant’s counsel submitted that with these Exhibits tendered and his Prosecution Witnesses he had discharged the onus placed on him. He stated that the onus then shifted to the Respondent/Defendant to prove his own title which he claimed devolved by purchase in 1977. Counsel referred the Court to Section 135 and 137 of the Evidence Act. Nwavu & Ors. vs. Okoye & Ors. 2009 All FWLR Pt. 451 Pg. 1413; Elemo & Ors. vs. Omolade & Ors. (1968) NMLR Pg. 359; Are vs. Adesa (1967) NMLR 304; Kate Enterprises Ltd. vs. Daewoo Nig. Ltd. (1985) 2 NWLR Pt. 5 Pg. 116; Reynolds Construction Co. Ltd. vs. Okwejiminar (2002) FWLR Pt. 121 Pg. 1934.
The learned counsel to the Respondent submitted that in Nigeria an existing right to land is that which comes into existence by operation of law. This right is the one recognized by the Land Use Act which came into effect in 1978. The grantees of such existing rights therefore are deemed to have required title as good as that grant of Right of Occupancy granted by Government. Adole vs. Gwar (2008) 4 SCNJ 1 Pg. 13- 14; Ololunde vs. Adeyogu (2000) 6 SCNJ Pg. 470 at 505; Savannah Bank vs. Agilo (2001) FWLR Pt.75 Pg. 513. See also Section 34 of the Land Use Act 1978.
The Respondent’s counsel stated that both parties concede that the land in issue is that covered by Certificate of Occupancy No. BO/12336 allegedly issued to the Appellant. This Certificate of Occupancy No. BO/12336 issued to the Appellant in 1996 (Exhibit ‘C’) is the Appellant’s root of title.
The Respondent pleaded in paragraph 4 of his statement of defence that he purchased the said piece of land in 1977 from the owner who inherited from his father through his grandfather and great grandfather.
In proof of the Respondent’s root of title, he called two Defence Witnesses and testified as DW2. Mallam Mustapha Amatomi DW1 testified that he inherited the land from his father about 60 years ago and sold the land to the Respondent about 40 years ago. This transaction was witnessed by DW3 who also gave evidence of this transaction. Since the purchase in 1977, the Respondent had been in peaceful enjoyment until 1996 when one Mohammed Ali who claimed to have purchased the land from the Appellant in 1996 trespassed.
The Respondent having purchased the land in 1977 before the Land Use Act of 1978 had an existing right before that of the Appellant which was granted in 1996. Counsel submitted that the existing right which accrued since 1977 is protected by the promulgation of the Land Use Act 1978. See Wuroma vs. Gashma (2002) FWLR Pt. 106, Pg. 1030 at 1049 Budabup vs. Kolo (1993) NWLR Pt. 317 Pg. 253 at 278; Haruna vs. Ojiukwu (1991) 7 NWLR Pt. 202 Pg. 207 at 224; Onwuka vs. Ediala (1989) 1 NWLR Pt. 96 Pg. 208; Section 34(2) Land Use Act.
Counsel urged the Court to dismiss this appeal on the basis of these issues.
Both parties have stated their root of title and attempted to prove it to the satisfaction of the trial Judge.
The Appellant proved that he acquired his title vide a Certificate of Occupancy No. BO/12336 granted him by the Borno State Government in 1996. In proof of this an administrative file Exhibit ‘C’ was also tendered in evidence.
The Respondent also gave evidence as to his root of title from a purchase he made in 1977 before the Land Use Act came into being in 1978. He traced his root from the vendor Mallam Mustapha Amatami who inherited the land from his father over 60 years ago. This land his father also inherited from his grandfather and so on. The Respondent’s root is by family inheritance.
There are five ways of proving or establishing title to or ownership of land. These are by:-
(1) Traditional evidence:
(2) Production of documents of title duly authenticated in the sense that their due execution must be proved;
(3) By positive acts of ownership extending over a sufficient length of time;
(4) By acts of long possession and enjoyment of the land;
(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.
The law is that the establishment of one of the five ways is sufficient proof of ownership.
Ayoola vs. Odofin (1984) 11 SC 120; Ewo vs. Ani (2004) 17 NSCQR 36; Ndukuba vs. Izundu (2007) 1 NWLR (Pt.1016) 432CA; Adanyi vs. Anwase (2006) 12 NWLR (Pt.993) 183 CA; Nkado vs. Obiano (1997) 5 NWLR (Pt.503) 31 at 34 SC; Nkwo vs. Iboe (1998) 7 NWLR (Pt.558) 354 SC; Chukwu vs. Diala (1999) 6 NWLR (Pt.608) 674 CA; Inwelegbu vs. Ezeani (1999) 12 NWLR (Pt.630) 266 CA; Adesanya vs. Adrounmu (2000) 6 SC (Part II) 18; Adeosun vs. Jibesin (2001) 14 WRN 106 at 108 CA.
The Plaintiff/Appellant in this case claimed that his root of title is from the grant of Certificate of Occupancy No. BO/12336 from Borno State Government. In proof of this he tendered his Certificate of Occupancy granted him in 1996. The law is that production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration. Thus, before the production of document of title is admitted as sufficient proof of ownership the court must satisfy itself that:
(a) The document is genuine or valid;
(b) It has been duly executed, stamped and registered;
(c) The grantor has the authority and capacity to make the grant;
(d) That the grantor has in fact what he propose to grant; and
(e) That the grant has the effect claimed by the holder of the instrument.
Ayorinde vs. Kuforiji (2007) 4 NWLR (Pt.1024) 341 CA; Dosunmu vs. Dada (2002) 13 NWLR (Pt.783) 1 CA; Romaine vs. Romaine (1992) 4 NWLR (Pt. 238) 650 SC; Kyari vs. Alkali (2001) FWLR (Pt. 60) 1481 SC; Dabo vs. Abdullahi (2005) 29 WRN 11 SC; (2005) 2 SCNJ 76; (2005) 7 NWLR (Pt.923) 181 SC.
These are the five hurdles which a claimant of title through an instrument must jump successfully to entitle him to a declaration that he is the owner as per the document of title tendered in proof of same.
The Respondent did not challenge:-
(a) The genuineness of the Appellant’s Certificate of Occupancy.
(b) The Respondent is not contesting that the Certificate of Occupancy was not properly executed, stamped or registered.
(c) Respondent acknowledged that the Borno State Government had the authority and capacity’ to make the grant per Land, Use Act 1978.
(d) The Respondent is contesting that the Borno State Government as grantor of Certificate of Occupancy No. BO/12336 does not have what he proposed to grant and;
(e) That the grant has the effect claimed by the Appellant the holder of the Certificate of Occupancy.
Exhibit ‘A’ the Administrative file of the Ministry of Lands Borno State did not state how it acquired the land it purportedly granted to the Appellant. The Appellant himself did not lead evidence through the Prosecution Witnesses how the Ministry of Lands acquired the said land. It is obvious that the land belonged to people before the Land Use Act of 1978. Government recognizes that title to the land already owned before 1978 would still be vested in the .owners and would be deemed as if the government granted such rights to them.
The law protects such vested rights existing before the promulgation of the Land Use Act. In Macaulay vs. Omiyade (1997) 4 NWLR Pt 497 Pg 94 the Court of Appeal held that-
“The grant of a Certificate of Occupancy to a person does not extinguish the right of an existing customary owner. This is because the prior holder is deemed to be the holder of a customary Right of Occupancy over such land unless and until such a prior holder’s interest is revoked, a subsequent grant is not valid”.
It is therefore true that the mere fact that the Plaintiff/Appellant produced a genuine Certificate of Occupancy granted him by the Borno State Government does not by itself entitle the Appellant to the declaration which he is praying for Auta vs. Ibe (2003) 13 NWLR Pt. 837 Pg 247.
As stated earlier in this judgment, the mere production of Certificate of Occupancy does not automatically entitle the Appellant to a declaration that the property which such an instrument purports to grant is his own. When the grantee of such an instrument places reliance on it, the Court goes a step further to inquire into some of a number of questions including whether:
(a) The document is genuine or valid;
(b) It has been duly executed, stamped and registered;
(c) The grantor has the authority and capacity to make the grant;
(d) That the grantor has in fact what he propose to grant; and
(e) That the grant has the effect claimed by the holder of the instrument.
See Dabo vs. Abdullahi (2005) 7 NWLR Pt 923 Pg 181; Ayorinde vs. Kuforiji (2007) 4 NWLR Pt. 1024 Pg 341.
Questions (a), (b), (c) and (e) above are not relevant to this case. The relevant question is (d)-
“Whether the grantor had in fact what he purported to grant.”
The Respondent had proved that he bought the land in dispute since 1977 and traced his root of title to 4 generations of the vendor which was not challenged by the Appellant.
The question is whether the Borno State Government had in fact what it granted to the Appellant vide Certificate of Occupancy No. BO/12336 in 1996.
By virtue of Section 34(1) and (2) of the Land Use Act, 1978 which reads:-
“Where a Land in an urban area is developed and is vested in any person immediately before the commencement of the Act, the land shall continue to be held by the person in whom it is vested as if the holder of the land was the holder of a statutory. Right of Occupancy issued by the Government under the Act.” See Ilono vs. Idakwo (2003)11 NWLR Pt. 830 Pg 53.
It therefore follows that the Respondent who had purchased the land in 1977 is deemed to have the statutory right of occupancy over the land. U.B.A PLC vs. Samba Petroleum Co. Ltd (2002) 16 NWLR Pt. 793 Pg 361.
Apart from tendering Exhibit ‘A’ the Certificate of Occupancy the Plaintiff/Appellant did not prove to the satisfaction of the trial Court that the Borno State Government did indeed have authority to grant the Certificate of Occupancy to the Appellant. The appellant did not prove that the grantor Borno State Government acquired that piece of land nor revoked it to the detriment of the Respondent. It would be pertinent to recount the evidence of DW1- the vendor of the land in dispute.
DW1: Mallam Mustafa Amajami, speaks Kanuri. Living in Bolori Lawanti. Senior Registrar affirmed to interpret from Kanuri to English.
Farmer: I know Mohammed Lawan. He is the defendant in the Suit. I was on my farm land. The defendant asked me to sell the land. I agree to sell it to him. The land is situated in Bolori. I inherited the land from my great, grandfather-through my grand father and my father. I inherited the land from my father. 60 years ago. I have been planting crops such as millet, beans on the land. I sold the land 40 years ago to the defendant. It is no longer a farmland: There is, a house built on the land now. I sold it at N6000. My brother was present when I sold the land. : He was studying Koran under a tamarin tree on the land. There was no other witness. My brother is deceased. The sale was put into writing. I signed. The Ward Head of the area also signed it. There was no witness at the time I signed it. It was a virgin land at the time I sold it. My father was Goni Fantami.
Cross Examination:
I am 83 years old. Land is in Bolori Ward Limanti. I know the neghbours to the land. I cannot recall the neighbors to the land. I cannot recall the neighbours now: I have Lands in Bolori. These lands have been acquired by the government. These lands are not adjacent to the land in dispute. Where the Federal Low Cost Estate is situated, Land can be acquired by the Government. The land in Bolori has been acquired by the government. I have not been compensated including the land in dispute.
This piece of evidence in fact goes to show that the State Government neither acquired nor paid compensation to the vendor evidencing acquisition. This piece of evidence remained unchallenged. The Appellant did not also prove any revocation of the plot before it was granted to him.
The Appellant’s counsel submitted that the Respondent’s counsel did not plead the twin issues of ‘acquisition’ and ‘revocation’ Counsel submitted that these issues were only introduced by the Defendant /Respondent’s counsel in his address and that the Court ought to have discountenanced it. The Appellant’s counsel argued that the object of pleading is to fix the issues for trial. See Aminu vs. Ogunyebi (2004) 10 NWLR Pt. 882 Pg 257 at 479.
Counsel further argued that the learned trial Judge erred in law when he went out of the confines of the issues pleaded thereby making a case for the Defendant. See Registered Trustees P.P.F.N. vs. Shogbola (2004) 11 NWLR Pt.883 Pg. 1 at 22. Overseas Construction Ltd vs. Creek Enterprises Ltd (1985) 3 NWLR Pt 3 Pg 407. Fagbenro vs. Arobadi (2006) All FWLR Pt 310 Pg 157 at 1596, 1885 -1886.
The Respondent in his reply submitted that the Appellant relied on the Certificate of Occupancy as his root of title. This, the Respondent challenged in paragraph 7 of the statement of Defence. Respondent’s counsel submitted as follows:
“enough, adequate denial and challenge to the unlawfulness or validity of the Certificate of Occupancy issued to’ the Appellant. Learned counsel to the Respondent re-iterated that issues were joined on the whole procedures or legality of how Exhibit ‘C’ was issued to the Appellant as to giving notices, acquisition, revocation and compensation in respect of the land by the Government of Borno State.”
Counsel submitted that pleadings are no longer required to be technical in formulation. All what is required is to plead material facts which expressly or by necessary implication raise an issue that will go to trial. Adesanya vs. Otuewu (1993) 1 SCNJ Pg 77 at 116, Olale vs. Ekwelendu (1989) 4 NWLR Pt. 115 Pg 326.
In furtherance of’ his argument the Respondent’s counsel stated that having pleaded the issuance of Exhibit ‘C’ as being without basis and illegal he need not plead revocation’ and ‘acquisition’ specifically.
The Respondent in paragraph 7 of his Statement of Defence stated:
“The Defendant says that the Plaintiff’s purported Certificate of Occupancy No. BO/12336 obtained in 1996 was without basis, illegal and of no effect over the Defendant’s land”.
This is the Respondent’s traverse of the Certificate of Occupancy of the Plaintiff/Appellant. It automatically puts the legality of the Certificate of Occupancy in issue.
A traverse is a denial by a party to an averment by another party as to facts raised in pleadings between them. The effect of a traverse is to cast upon the Plaintiff, the burden of proving the allegations denied. A proper traverse is a complete and sufficient denial, which has the effect of joining issues between the parties. Okoromaka vs. Odiri (1995) 7 NWLR Pt 408 Pg 411, UBN PLC vs. SCPOK (Nig.) Ltd. (1998) 12 NWLR Pt 578 Pg 439.
What is essential is that the Defendant’s case is in material particulars, in conflict with the Plaintiff’s case and thus puts the different material’ averments in issue. Audu vs. Guta (2004) 4 NWLR Pt 864 Pg 463, Afao vs. Alao (1986) 12, SC Pg 193, Ayansina vs. Co-operative Bank Ltd (1994) 5 NWLR Pt 374 Pg 742;
The Plaintiff/Appellant failed to file a reply to the averments in paragraph 7 of the Statement of Defence. The Defendant/Respondent joined issues with the Plaintiff/Appellant on the illegality of his Certificate of Occupancy; the root of his title. The onus was on the Plaintiff/Appellant to prove that indeed the Certificate of Occupancy the root of his title entitles him to a declaration he sought from the Court. The Appellant needed to prove that the Certificate of Occupancy was sufficient proof of ownership.
The Respondent joined issued on the validity of the Appellant’s Certificate of Occupancy of 1996. The Respondent claimed that he purchased the land in dispute in 1977. The Respondent in his evidence stated that he lived in Bolori and that he knew the area was a residential area before he applied for his Certificate of Occupancy.
As soon as issues were joined on the legality of the Certificate of Occupancy, the Appellant would have taken steps to prove the five requirements especially that of that the grantor has in fact what he proposes to grant’.
A person who is granted a Certificate of Occupancy that is questioned must be put on enquiry as the land the subject matter of the dispute must have original owners before his own grant in 1996. His enquiry would have led him to whether the Government of Borno State properly acquired the land in dispute. The Government cannot acquire land from an individual without adequate compensation.
The Appellant’s counsel in .his cross-examination of DW1 elicited from him that Government had acquired the other lands in Bolori area but failed to prove that there was (acquisition in the context of the Land Use, Act of 1978.
The question of acquisition, and revocation was sufficiently traversed by the Respondent in his Statement of Defence. Issues were joined and evidence led by both parties on that line.
The trial Judge was therefore correct to have made his views on the acquisition and the revocation of the land the subject matter of this Appeal.
In a claim for declaration of title to land, a Plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the Defendant’s case. Otanma vs. Youdubagha (2006) NWLR Pt. 964 Pg 337. Dike vs. Okoloedo (1999) 10 NWLR Pt. 623 Pg 359. Tukuru vs. Sabi (2005) 3 NWLR Pt. 913 Pg 544. Onisaodu vs. Elewuju (2006) 2 NWLR Pt. 998 Pg 517.
The burden of proof in this case is on the Plaintiff/Appellant to prove his title to the plot in dispute. The Appellant failed to prove that indeed the state government had what it purported to grant. In a land matter where the Plaintiff failed to prove his root of title relied on, the proper order to make in such circumstance is to dismiss the Plaintiffs case. Ndukuba vs.. Izundu (2007) 1 NWLR Pt. 1016 Pg 432.
The trial Judge was right in dismissing the claim of the Plaintiff who failed to prove his root of title relied upon to the satisfaction of the Court.
Issues 1 and 2 are therefore resolved against the Appellant. Issues 3 and 4 are on the evaluation of evidence by the trial Judge.
The Appellant’s counsel in his submissions on Issue 3 and 4 made a general statement that the learned trial Judge did not properly evaluate the evidence .of .witnesses and ascribe probative value to them. Learned counsel urged the Court to interfere with the findings of fact of the trial Court because:
(a) The findings of the trial court were perverse.
(b) The trial Court has taken an erroneous view of the evidence adduced before it.
(c) The trial Court failed to evaluate or properly evaluate the evidence adduced before it.
(d) The trial Court has not made a proper use of the opportunity of seeing and hearing witnesses at the trial.
(e) The trial Court relied on matters-not pleaded.
(f) The trial Court did not review the evidence before her.
Learned counsel also submitted .as per his brief-
He did not produce the agreement of purchase of the land which he said was in writing.
He called witnesses who claimed they witnessed the sale even though the only witness had died.
There was evidence by-the DW1 (see page 26 lines 6 – 7 under cross examination) at page 26 lines 13 – 17 of the Records that the land in dispute and other lands in that area had been acquired by the Government of Borno State.
It was pleaded that Defendant/Respondent allegedly applied for conversion of his customary right to statutory right and issued File No. BO/30798 (see page 1 paragraph 6 and page 27 lines 25 – 26 of the record) but neither was the receipt for application nor file No. BO/30798 produced in Court.
Counsel urged the Court to hold that the judgment of the trial Court in favour of the Defendant/Respondent is against the weight of evidence and allow the appeal. Awara vs. Alabibo (2003) 3 MJSC 157 at 205.
In response, the learned counsel to the Respondent submitted that the trial Judge evaluated the evidence adduced by parties and ascribed probative value to the evidence adduced, and that the trial Judge performed his primary function of hearing and assessing the witnesses. Agebeje vs. Ajibola (2002) 9 NSCQR1 Pg 18, Ura vs. Irolo (2002) AUR Pt. 127 Pg 1167.
Counsel submitted that an appellate Court can only interfere with such findings that are perverse and not based on any evidence, thereby occasioning a miscarriage of justice. Ibewuezi vs. Ekeanya (1989) 1 NWLR Pt.961 Pg 239 at Pg 247 – 248.
Finally, learned counsel to the Respondent submitted that all the evidence and issues raised-at the trial Court were well considered by the trial Court before reaching its decision. Counsel urged the Court to dismiss this appeal on these issues.
The Black Law Dictionary describes Evidence as-
“any specie of proof or probative matter legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects etc., for the purpose of inducing belief in the minds of the Court or jury as to their contention.”
The appraisal of evidence and ascription of probative value is the primary duty of the trial Court and where the issue turns on credibility of witnesses, the opinion of the trial Judge must be respected. Osolu vs. Osulu (2003) 11 NWLR Pt. 832 Pg 608.
In the evaluation of evidence, the trial Courts are guided by the following principles, namely:
(a) Whether the evidence is admissible;
(b) Whether the evidence is relevant;
(c) Whether the evidence is credible;
(d) Whether the evidence is conclusive and;
(e) Whether the evidence is more probable than that given by the other party.
Mogaji v. Odofin (1978) 4 SC 91, Akad Industries Ltd vs. Olubode (2004) 4 NWLR Pt. 862 Pg 1.
In a civil case, the Court’s decision is based on the balance of probabilities or preponderance of evidence. For the Court to achieve this it must place on an imaginary scale all evidence adduced by both parties before coming to its decision. The Court must put the evidence adduced by the Plaintiff on one side of the scale and that by the Defendant on the other side of the scale and weigh them together. The Court will thereafter determine which is heavier not by the number of witnesses called by each, party but by the quality or probative value of the testimony of those witnesses. Adebayo vs. Adusei (2004) 4 NWLR (Pt.862) Pg 44. Olushile vs. Maiduguri Metro Council (2004) 4 NWLR Pt. 863 Pg 290, Fagbenro vs. Arobadi (2006) 7 NWLR Pt. 978 P9174. The Appellant’s counsel in its submissions stated that the trial Judge did not properly appraise and evaluate the evidence before him and thus occasioned a miscarriage of justice.
In the instant case, the evidence of the Appellant is that he was ranted a Certificate of Occupancy by the Borno State Government in 1996 vide Certifi5ateof.Occupancy No. BO12336 over the land, the subject matter of this case. A plaintiff in a case for declaration of title such as this, wins or loses by the strength of his case and not by the weakness of the Defendant’s case. The Plaintiff must therefore satisfy the Court upon the pleadings and evidence adduced by him: to be entitled to the declaration sought Gbadamosi vs. Dairo (2007) 3 NWLR Pt. 1021 Pg 282, Dada vs. Dosunmu (2006) 18 NWLR Pt 1010 Pg 134, Onissaodu vs. Elewuju (2006) 13 NWLR Pt. 9978 Pg 517, Ajiboye vs. Ishula (2006) 13 NWLR Pt, 998Pg 628.
Evaluation of relevant and material evidence before the Court and the ascription of probative; value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably appraises the facts; it is not the business of the appellate Court to substitute its own views for the views of the trial Court. Agbi-Ogbeh (2006) 11 NWLR Pt. 990 Pg 65, Bashaya vs. The State (1998) 5 NWLR Pt. 550 Pg 351, Ojokolobo vs. Alamu (1998) 9 NWLR Pt. 565 Pg 226, Sha vs. Kwan (2000) 5 SC 178, Fagbenro vs. Arobadi (supra). However where the trial Judge fails to evaluate evidence the Appellate Court has no choice but to do so.
I have earlier in issues 1 and 2 evaluated the evidence adduced by the parties in resolving issues 1 and 2. However the Appellant’s counsel in his submissions gave instances where the trial Judge did not evaluate the evidence adduced not ascribed probative value on them.
By the power of Section 15 of the Court of Appeal Act I will endeavour to evaluate those areas complained of.
Counsel submitted that the Respondent:
“Did not produce the agreement of purchase of the land which he said was in writing.”
The law is that a Plaintiff in a land matter has the burden of proving that the land in dispute is his. This burden does not shift. The Plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the Defendant’s case. See Otanma vs. Youdubagha (supra) Dike v. Okoledo (supra) Takura vs. Sabi (supra) Onisaodu vs. Elewuju (supra).
The Appellant failed to prove to the satisfaction of the trial Court that the Borno State Government has in-fact what it purportedly granted.
Indeed the Respondent had claimed that the purchase of the land and the agreement was reduced into writing even though he failed to produce same. It is not the Respondent who has the burden of proof. The Respondent traced his root of title through four generations. The Respondent had had the land at least for 20 years before the Certificate of Occupancy was granted to the Appellant in 1996. It is for the Appellant to prove a better title than that of the Respondent.
The Respondent indeed called witnesses who only witnessed the transaction, but were not signatories to the agreement. The only signatory to the agreement was said to have died. These pieces of evidence do hot water down the evidence of purchase through a vendor who inherited the land from his father, grandfather and great grandfather. This piece of evidence was never challenged by the Appellant and was believed by the trial Court.
The Appellant submitted that DW1 in his evidence under cross examination at page 26 lines 13 17 of the records stated that the land in dispute and of her lands in that area had been acquired by the Government of Borno State.
I am constrained to quote the relevant piece of evidence of DW1 under cross examination to put into proper perspective what DW1 said:
“I have lands in Bolori. These lands have been acquired by the Government. These lands are not adjacent to the land in dispute. Where the Federal Low Cost Estate is situate, land can be acquired by government. The land in Bolori has been acquired by the Government I have not been compensated including the land in dispute.”
DW1 specifically said he had lands in Bolori which had been acquired by Government. He goes onto state again.
“These lands are not adjacent to the land in dispute.”
This means that DW1 has categorized his lands in Bolori which had been acquired and the land in dispute which had not been acquired by Government. DW1 also re-iterated that his lands in Bolori acquired by Government, compensation has not been paid to him. The land in dispute is no longer that of DW1. If at all Government had acquired the land in dispute compensation, should have been paid to the Respondent.
A party in a land dispute who asserts that land was acquired by the Government must not only prove that the land was acquired pursuant to Section 28(1) and,(2) of .the Land Use Act but also that subsection (6) and (7) of the Section and Section 44 were duly complied with Baba-Iya vs. Sikeli (2006) 3 NWLR Pt. 968 -Pg 508 CA.
Appellant’s counsel M.E. Oru Esq., also submitted that the Defendant/Respondent pleaded that he applied for conversion of his customary right to statutory right and was issued with file No. BO/30798 but neither was the receipt for, application nor file No. BO/30798 produced in Court. As stated earlier in the course of this judgment, the onus is on the Appellant to prove his title to land and this burden never shifts. The Plaintiff/Appellant either wins by the strength of his case or fails by its weakness.
The Appellant’s counsel has not shown that there was a miscarriage of justice .or that the conclusion reached by the trial Judge was perverse.
In appraising the evidence adduced by the Appellant in proof of his case and the declaratory relief sought, the trial Judge came to the right conclusions. The Appellant did not satisfy the Court with the production of a Certificate of Occupancy as the Certificate of Occupancy was not sufficient proof of ownership and as such, the Plaintiffs/Appellant’s claim was dismissed and rightly so by the trial Court.
By the powers conferred to this Court by Section 15 of the Court of Appeal Act I have evaluated the evidence adduced by the parties by the trial Court. My findings and conclusions are the same with that of the trial Court and as such I cannot tamper with it. I therefore hold that the conclusions reached were not perverse neither was a miscarriage of justice occasioned. Appellant’s issues 3 and 4 therefore fail. Having resolved all the four issues articulated by the Appellant against him, this appeal therefore fails and it is hereby dismissed. The judgment of the trial Court delivered on 26th September 2008 is hereby affirmed.
Cost to the Respondent is assessed at N30,000,00.
ZAINAB A. BULKACHUWA, J.C.A.: I agree.
HON. JUSTICE BODE RHODES-VIVOUR, J.C.A.: I have has the advantage of reading in draft the judgment prepared by my Learned Brother Ndukwe-Anyanwu, JCA. I am in full agreement with the reasoning and conclusion. I propose to add only a few observations. Both parties had ad idem that the land in issue is the land covered by certificate of occupancy No. BO/12336.
The Appellant, as Plaintiff claimed that he was granted certificate of occupancy for the land in 1996 by the Borno State Government, while the Respondent claims to have purchased the same land in 1977 from the owner who inherited from his father through his grandfather.
Now, Respondent purchased the land in 1977 before the land use Act came into force in 1978. The Respondent thus had an existing right before that of the Appellants in 1996.
A certificate of occupancy must be based on existing Title to land. That is to say it must state whether-the land was acquired by sale under native Law, by conveyance, or by inheritance.
There is nothing on the certificate of occupancy or documents admitted as Exhibits or testimony of Plaintiffs witness to show how the land was acquired before the ministry could issue a certificate of occupancy. Consequently in the absence of this vital information the certificate of occupancy is a worthless piece of paper.
See: Ofoeze v Ogugua 1966 6 NWLR pt. 455 p. 441.
Adebiyi v. Williams 1989 1 NWLR Pt. 99 p. 611
Dzungwe v Gbishe 1985 2 NWLR pt. 8 p. 528.
A Certificate of Occupancy is prima facie evidence of title to land.It becomes conclusive evidence when there is affirmative evidence to show where title was derived from.
I also dismiss the appeal with N30,000.00 costs in favour of the Respondent.
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Appearances
M.E. Oru Esquire (with Ibrahim Watila Esq.
T.O. Ijabiken Esq) for the AppellantFor Appellant
AND
K.J. Ntafa Esq.For Respondent
